Everybody Must Be Heard On Foreshore Debate
Ken Shirley Speech
Address to ACT Waikato/BOP Regional Conference, Quality Hotel, Hamilton, Saturday 1 November 2003, 11.00 am
Good morning and welcome.
On the 19^th of June this year the New Zealand Court of Appeal released the long awaited decision declaring that iwi in
the Marlborough Sounds are entitled to go to the Maori Land Court with their claim for customary title over areas of
foreshore and seabed in the Marlborough Sounds and extending to the limits of New Zealand's territorial sea as defined
in the Te Turi Whenua Maori Act 1993.
Prior to this decision the Crown believed that Iwi were not so entitled.
The original Maori Land Court decision of Judge Hingston in 1998 was appealed by the Crown and the High Court decision
of Justice Ellis in 2001 rejected the Maori claim and found in favour of the Crown in all eight questions. The
Marlborough iwi then took their case to the Court of Appeal, which overturned the High Court decision.
We must first be clear what foreshore and seabed is. The foreshore is those inter-tidal lands between mean high water
spring and mean low water spring tides. The seabed in this legal context is that land permanently covered by sea
stretching from the foreshore to the 12 nautical mile outer limits of New Zealand's territorial seas.
This underlying assumption of Crown ownership was based on existing legislation and previous court rulings such as:
1878 - HARBOURS ACT. Parliament legislated to divest Maori Land Court of jurisdiction to investigate title below high
water mark.
1894 - NATIVE LAND ACT. Parliament legislated so that investigation of title of customary land automatically results in
the conversion of customary ownership into freehold Maori land.
1950 - HARBOURS ACT. Upheld position established in 1872.
1963 - THE COURT OF APPEAL in the 90 Mile Beach Case held that there was no remaining entitlement to a further
investigation of title to the foreshore.
1965 - TERRITORIAL SEA AND FISHING ZONE ACT. Deems the foreshore and seabed to be, and to have always been, vested in
the Crown. (Grants made before and after the Act are specifically preserved.)
1977 - EXCLUSIVE ECONOMIC ZONE ACT. Reiterated assumption of Crown ownership of foreshore and seabed.
1991 - FORESHORE AND SEABED ENDOWMENT REVESTING ACT. A similar assertion of Crown ownership.
On Monday 23 June 2003 two working days after the Court of Appeal decision, the Prime Minister Helen Clark and Attorney
General Margaret Wilson both publicly asserted that the foreshore and seabed is indeed owned by the Crown and if
necessary the government would legislate to remove doubt.
The country sighed with relief. That mood was a reflection of the relief felt when a month earlier, the Prime Minister
asserted Crown ownership over oil and gas reserves based on the 1937 legislation, following a recommendation of the
Waitangi Tribunal that Maori had a legitimate claim.
Any feeling of relief was short lived. The Government buckled to political pressure from Maori, rapidly abandoning its
initial assertion of Crown ownership and floating a nebulous concept of "Public Domain" owned by no one. This creates a
political, social and economic vacuum. Nature and politics hates a vacuum.
Following the initial impasse some extreme Maori, including cabinet minister Tariana Turia have asserted absolute and
exclusive Maori title over the foreshore and seabed with a promise to share with non-Maori. Some even went so far as to
declare Maori sovereignty over the seabed stretching to the ancestral lands of Hawaiki. If nothing else, that claim
confirmed that like all New Zealanders, Maori too are immigrants to this land.
During this period the government attempted to obfuscate the issues and in particular conveniently seized upon the
report of the Land Access Ministerial Reference Group chaired by John Acland.
This report proposes the affirmation of the Queen's Chain to ensure access to our beaches and waterways. The issue
surrounding access through and over private property are however quite distinct from ownership of the foreshore and
seabed itself. After all, if the Crown does not own the foreshore and seabed on behalf of us all and Maori do have
exclusive and extensive title as some claim, then the concept of public access to the commons is out the window because
it is no longer "commons".
In other words the very concept of the Queen's Chain as a 20 metre esplanade reserve above the foreshore implies that
the inter tidal foreshore and coastal waters beyond are vested in the Crown for the enjoyment of us all. There are a few
existing fee simple freehold titles extending into these inter-tidal zones and seabed but these comprise a very small
proportion of the New Zealand coastline.
In the two months following the Appeal Court decision the Government engaged in a series of consultative Hui with
Maori, several of which had to be abandoned, and all resulted in an absolute rejection of the Government's proposals.
Initially the claim by iwi for customary title was not a Treaty issue. Increasingly however Maori groups have asserted
sovereignty rights claiming the foreshore and seabed pursuant to Article 2 of the Treaty. The Treaty claim aspect has
been reinforced by government seeking a recommendation on their proposals from the Waitangi Tribunal.
Most New Zealanders are weary and increasingly intolerant of the self perpetuating Treaty of Waitangi grievance
industry. We should however not blame the treaty but rather the politicians and judges who have spent the last two
decades redefining it.
The three articles of the Treaty of Waitangi are clear and simple.
ARTICLE ONE establishes sovereignty over New Zealand in the name of the British Crown with the various signatory tribal
chiefs accepting that sovereignty.
ARTICLE TWO is all about the establishment, maintenance and protection of property rights. It must be remembered that
under tribal chieftainship property rights were not well defined or secure. They were frequently seized in battle with
the vanquished often being enslaved or eaten.
ARTICLE THREE promises the natives of New Zealand and their descendants equal rights and responsibilities before the
law as British subjects.
I will proudly defend those broad principles in any forum and uphold the Treaty of Waitangi as our nation's founding
document. Regrettably we have allowed those principles to be twisted and reinterpreted by activists with a determined
agenda.
The concept of "treaty partnership" was invented by the judiciary in the 1980's and seized upon by the Treaty
activists. It is a fundamentally flawed concept as are the government's ill-conceived treaty principles based on the
notion of protection, partnership and participation.
While various parties came together on the 6^th February 1840, from that day forward sovereignty lay with the Crown and
all citizens enjoyed equal rights. The Crown is we and we are the Crown through our democratically elected parliament.
How can you possibly be in partnership with yourself? It was no accident that Governor Hobson said in Maori to each
chief as they signed the treaty "He iwi tahi tatou - Now we are all one people".'
The foreshore and seabed debate is an inevitable result of the partnership concept. The Hauraki Declaration emanating
from the National Maori Hui in Paeroa on the 12^th July was effectively an assertion of Maori sovereignty and the
Government kowtows in fear of upsetting the "Treaty Partner".
The court did not find that there was any customary title to the foreshore and seabed, only that it was possible that
customary title does exist in some instances. All citizens must have the right to go to court seeking determination of
property rights disputes. Our democracy is based on the appropriate division of powers between the Legislature
(Parliament), the Executive and the Judiciary. For a healthy democracy it is essential that we have faith in the
integrity and independence of all three.
There is an issue of our Court structure that worries me deeply. The Waitangi Tribunal is not a Court and only has the
powers of recommendation. All of the Judges on the Maori Land Court are members of the Waitangi Tribunal and the Chief
Judge of the Maori Land Court, Joe Williams, is the acting Chairman of the Waitangi Tribunal. The Maori Land Court was
established with the prime purpose of adjudicating the extent of customary land title held by various Maori groups and
where appropriate converting that customary title to fee-simple freehold title under our much acclaimed Torrens system
of land registration and transfer.
In making those determinations non-sworn testimony is often accepted without cross-examination or challenge. We have
had a recent history of judicial activism on Treaty matters and the Maori Land Court is demonstrably aligned. It is
therefore not the appropriate judicial body to determine the validity of any customary title that may exist over the
foreshore and seabed.
In addition the Te Turi Whenua Maori Act 1993 is defective because it wrongly equates non-exclusive use rights with
property ownership and title.
The Labour Government has no idea on where it is going with this issue and is squeezed between the interests of two
conflicting constituencies. The government backed down from asserting sovereignty and ownership in fear of alienating
its Maori constituency. Instead we have had a series of nebulous and even meaningless statements about access, certainty
and customary title that are somehow are bundled into a public domain owned by no one. This is a recipe for uncertainty,
endless litigation and escalating social tension.
Conclusion:
In examining this issue the ACT party has been guided by two broad principles.
• The sanctity of property rights
• One law for all - common rights and responsibilities of all citizens before the law - in other words, one class of
citizenship.
The ACT party has a very simple, clear and principled policy on the foreshore and seabed issue:
1.The Crown must assert sovereignty retaining powers to act as the regulator as and when necessary.
2. Property rights are important.
(a) All users of the foreshore and seabed need clear and transferable property rights particularly those associated
with activities such as aquaculture, prospecting, mining and marinas. Parliament, not the Courts, must determine the
type and extent of such property rights.
(b) Where any established property right is appropriated by the Government in the public interest then compensation
must be paid.
(c) To the extent that some limited customary use rights may still exist then those claiming such rights must, as
necessary, be able to test those rights in Court and resolve disputes.
3. No law should confer privilege or prejudice on the basis of race - one law for all.