One Law for All?

INTRO: This week’s column considers the disturbing effects of Labour’s new Foreshore and Seabed race-based policy just announced.

The Labour Government’s strategy of announcing their response to the seabed and foreshore fiasco on the day after the House has risen for the Christmas break illustrates the absolute disdain in which they hold the process of public scrutiny that underpins the parliamentary process. Vigorous debate and robust enquiry by opposition Parliamentarians are at the heart of a healthy Westminster democracy. The Government’s heavy handed dismissal of the need for that process adds weight to growing public disquiet that Labour is becoming more arrogant and dictatorial by the day.

This issue is one of the most important to face a modern day New Zealand government. Who owns the beaches and seabed is a matter of fundamental importance to each and every one of us. It is particularly poignant at this time of year as the annual migration to the beach is about to begin.

Yet Labour in a style reflective of the totalitarian left, after a period of hasty consultation with Maori and little consultation with anyone else, and without any regard to the views of other parliamentary parties – all of who have also had to wrestle with the issue – have decided to announce their so-called solution today. The worst aspect of this approach is that even if they come up with an unworkable response by using their compliant coalition parties they will still be able to cobble together a majority in the House to pass their “we know best” remedy into law.

No one has tried to suggest that this is a simple issue. The root of the problem lies at the feet of the Court of Appeal. It now appears that under the influence of activist Judges, the Court of Appeal got it wrong by overturning the long standing decision made by the same court in 1963 on the Ninety Mile Beach case.

The situation has always been that the Crown owns the foreshore and seabed except in exceptional circumstances where private titles have been vested. These are best known as properties with riparian rights as well as local authority holdings, including former Harbour Board lands. This position is consistent with the international recognition of New Zealand’s territorial waters and our exclusive economic zone.

While customary rights have been argued by for Maori, whose continued custom and use of some coastal property dates back to 1840, there has been – until now - no legal mechanism for the granting of such title.

The government’s so-called “solution” to this fraught issue looks set to create a furore rather than solve the problem. It plans to repeal Crown ownership of the foreshore and seabed in favour of a new “public domain” provision. The notion of a “public domain” erodes the concept of property rights that has always formed the foundation of any property-owning democracy. While this change does not look likely to immediately affect properties with riparian rights, the Government has stated that it intends to bring those into the public domain as well.

Much of the Government’s response appears to be aimed at appeasing Maori concerns: the Maori Land Court will be changed to enable it to award customary title. While the stated intention is that such title “would sit alongside the public domain title” and “not alter reasonable and appropriate public access”, the document then goes on to state that Maori will have clear management and use rights including those of a commercial nature. These commercial interests appear to be widespread: “When applications for coastal permit are received, the regional council or other decision makers will be required to consider whether the proposed activity would have a significant impact on a customary right. If so, the application will not be approved unless the holder of customary right consents to it”.

Along with the establishment of a Commission to identify and investigate mana and ancestral connections, there will be 16 regional working groups - comprising central government, whänau, hapü and iwi and local government - who will need to reach a legally enforceable agreement on how the coastal marine environment will be managed in each area.

While the Government’s response resembles a sell-out to Maori, it is highly likely that the absence of exclusive customary rights titles for Maori will create widespread unrest.

So, as you pack your togs and chilli bins and head off to the beach this summer, remember two things. Firstly, that the government’s abolition of Crown ownership of the beaches and seabed and the consequential undermining of property rights – in their attempts to appease Maori - have now created widespread uncertainly for all New Zealanders. And secondly, that the real answer to the seabed and foreshore row was not only for the Government to have joined in the appeal to the Privy Council to overturn the activist rogue judgement by the Court of Appeal, but also to have allowed customary right claims by Maori to have been considered in civil courts – which are available to all New Zealanders – rather than being dealt with by the Maori Land Court.

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