Hon Dr Michael Cullen

Speech Notes
7pm Monday 15 March 2004

Address to Waipukurau Rotary Club
Waipukurau Club

Tonight I have been asked to talk about the vexed question of the ownership of the seabed and foreshore. Nine months ago most New Zealanders barely gave this issue a thought. We understood it to be a settled principle that the seabed and foreshore was owned by the public of New Zealand, and could be freely accessed for recreational purposes and for commercial use under the appropriate safeguards of the Resource Management Act and other acts of Parliament.

So too, most New Zealanders were aware of the special importance that parts of the seabed and foreshore held for particular Maori tribes as a result of a long history of continuous use and connection to that part of the coast. I believe most non-Maori New Zealanders respected those customs and were happy to accommodate them, and to modify their own use of the seabed and foreshore to allow that to happen.

What changed nine months ago of course was the Court of Appeal’s decision last June that the Maori Land Court could hear claims and investigate the ownership of the foreshore and seabed. This decision raised some fundamental questions of constitutional, administrative and property law.

It also gave rise to some very unfortunate posturing at both ends of the spectrum: at one end by some Maori who dispute the very nature of the partnership established under the Treaty of Waitangi; and at the other end by some politicians who view with hostility any suggestion that we recognise Maori customary rights and are happy to use the issue to stoke up a more general backlash against what they perceive to be policies that give preference to Maori.

We now have a complex and potentially divisive situation. Now, more than ever, is a time for cool heads and calm discussion. I firmly believe that we can find a middle path; and how we arrive at that and avoid the pitfalls along the way is what I want to focus on tonight.

Before we go any further we need to be very clear on what it was that the Court of Appeal actually said and what it did not say.

It did not say that Maori owned the foreshore and seabed. That was not even the question before it. The question before it was whether the jurisdiction of the Maori Land Court extended to the foreshore and seabed or whether - in effect - all Maori indigenous rights had been extinguished.

The court found that the Maori Land Court did have the jurisdiction to hear claims, but was careful to venture no further. It left open questions as to whether the claimants would succeed in establishing any customary property and stated that the extent of any interest remained “conjectural” but was likely to pertain to “relatively discrete areas.”

This created a quandary for the government. To allow claims regarding the seabed and foreshore to be heard by the Maori Land Court would have serious repercussions. The Maori Land Court operates under the Te Ture Whenua Maori Act 1993; but this Act was intended to apply to dry land only, and is incapable of recognising a property right short of fee simple title.

In other words, the Court would be applying law that did not take account of the special characteristics of the seabed and foreshore, and would be able to make only one kind of determination: full and exclusive title.

This was not what Parliament intended when it passed the Te Ture Whenua Maori Act 1993. The Act is clearly ill-fitted to address the status of the seabed and foreshore, and ill-fitted to deal with more subtle kinds of property rights.

What is more, in legal advice supplied to the Waitangi Tribunal, Professor Paul McHugh attested that the New Zealand courts would most likely be swayed by comparable overseas cases and would find that the common law cannot recognise exclusive ownership of the foreshore and seabed.

But, while Professor McHugh, a world expert in this area, found there could be no exclusive ownership he also stated that he believed there may be very substantial Maori rights over the foreshore and seabed.

Some means are required to recognise and give effect to those rights. In our view, the Maori Land Court and the Te Ture Whenua Act are not the right instrument.

It is important to understand that customary rights are not Treaty rights as such. They are rights which derive from the common law; that is, from the mainstream tradition of English jurisprudence. Customary rights are attested to by both New Zealand and overseas courts. Such rights are established by long practice; by a continuous relationship between a community and a specific area of foreshore and seabed. What this means is that a relatively small proportion of the foreshore and seabed is likely to be the subject of customary use. It is certainly not envisaged that on large stretches of the coast long dormant practices might be resuscitated and granted status as customary rights.

Although they do not involve ‘ownership’ as such, customary rights are property rights nevertheless. One can draw analogies with any number of other rights, such as rights of way and similar modifications to titles which place an obligation on the owner of land to make provision for the interests of other parties.

Like any other property right, customary rights, where they are established, should not to be taken without just compensation. And like any other property right, they must be exercised in a context of other, competing, rights belonging to other individuals and to the public. They can be regulated or moderated – to a certain extent – for broader community purposes.

As you can see, the challenge for the government lies in finding a solution which recognises the legitimate rights and expectations of all New Zealanders. Clearly, some give and take is called for by all of us, Maori and non-Maori.

Unfortunately this is a debate which can easily be sidetracked by those taking extreme positions on the far right (through exciting irrational fears) and on the far left (through promoting unrealistic expectations).

As the Prime Minister pointed out recently, Dr Brash’s Orewa speech has broken a longstanding consensus around how Maori and non-Maori New Zealanders engage on difficult questions of indigenous rights.

This was not a consensus around a standardised view of the issues. It has been instead a consensus around how that debate is conducted: reasoned, respectful and sensitive to the passions involved and the complexity of the historical and legal issues.

By launching an attack on what he terms preferential treatment for Maori, Dr Brash has inflamed irrational fears. His comments since then have drawn upon anecdote, caricature and stereotype, and have unleashed a wave of hostility and suspicion towards all Maori.

A man as intelligent as Dr Brash surely knew this would be the result. There may indeed be instances where the application of some policies in education, health or welfare has overstepped the mark and needs to be re-examined. (Having said that, independent investigations such as that undertaken by the Sunday Star Times recently have found that preferential treatment of Maori is a rare phenomenon and can invariably be explained in terms of targeting those most in need.)

The tragedy is that Dr Brash has created an environment in which sensible public debate is even less likely. He now seems resistant even to the idea of engaging in a serious consideration of the place of the Treaty in New Zealand law and society, as the Prime Minister has proposed.

As for a solution to the problem posed by the Court of Appeal’s decision, Dr Brash has proposed legislation to extinguish any customary rights that may have existed.

This idea is dangerous and naïve. Dangerous because it implies removal of a property right without just compensation (a very curious thing for a supposed devotee of neo-classical economics to propose), and hence it calls into question whether other established property rights might suffer the same fate.

And naïve because Dr Brash appears to argue that the Treaty of Waitangi voided any customary rights over the seabed and foreshore, replacing them with the generic rights that pertain to all New Zealanders. We believe this position is untenable; the Treaty protected such rights and went on to commit both sides to working them out in the context of a new and unified nation.

At the other end of the spectrum are those who argue that we should simply leave the matter to resolve itself gradually through the courts. The end point of that process would, they believe, be a clear decision either that Maori cannot claim title to portions of the seabed and foreshore, or that they can, in which case the Crown would have to enter into negotiations to restore access on behalf of New Zealanders in general.

It was disappointing to find the Waitangi Tribunal advocating this approach in their report released the week before last, and to find them basing their conclusions on dubious or incorrect assumptions. While I want to give careful consideration to a number of the matters raised by the Tribunal, I cannot go along with their rejection of the principle of parliamentary sovereignty.

The Tribunal, in more than one place in the report, seems to assume that a clear statement of statute law - such as vesting of the title to foreshore and seabed in the Crown as is currently the case - can in effect be ignored. If Parliament changes the law, as the government is proposing by removing the capacity of Maori to gain freehold title over the foreshore and seabed, it cannot be accused of somehow breaking the law itself. This is particularly so when what the government is proposing is that the law should be changed to reflect the meaning that Parliament clearly intended it to have in the first place.

The second serious error the Tribunal makes and which determines a great deal of its judgement is that the government's proposal does not include the recognition of customary rights as a form of property rights.

That is simply not so, as I have just explained. The government does recognise customary rights as property rights, and we will make this clear in the introductory policy statement to the legislation.

Much of the logic of the Tribunal’s report simply falls to the ground once that is made clear.

What the Tribunal seems to be recommending is that matters be allowed to take their course through the pursuit of individual cases through the courts, with decisions one way or another, followed by appeals and so forth.

The Tribunal notes that if these proceedings should continue to the granting of freehold title to what could be substantial areas of foreshore and seabed, then the government could legislate to take that title away, in return for compensation.

I would suggest that that is far more objectionable in terms of interfering with due legal process.

We do not believe the Tribunal’s proposal is a viable option. We are not confident that the outcome would be as clear cut as they suggest; and we do not think allowing matters to drift on, perhaps for many years, is in the interests of any New Zealanders. Already there is a serious risk of injunctions to prevent any seabed and foreshore activity from happening. We cannot allow our entire coast to be locked up, and an effective moratorium placed on key industries such as aquaculture, pending a long and uncertain series of cases and appeals.

To allow this to happen would be irresponsible for any government. That is why our decision was to set out a framework to provide a clear and unified system for recognising rights in the foreshore and seabed, and to enshrine that framework in legislation, after seeking submissions from all those affected.

Non-Maori New Zealanders need not fear a wholesale limitation on their rights of access to their favourite portions of the coast. The weight of legal precedent indicates that customary rights are recognised and protected only where they have been exercised more or less continuously. It is hard to argue that a practice is in fact a ‘custom’ if it has fallen into abeyance over many years. In this instance, past history must be corroborated by recent practice. It should also be remembered that this framework is about uses other than fishing as customary fishing rights have already been addressed through the Treaty of Waitangi Fisheries settlement.

What this means is that a relatively small proportion of the foreshore and seabed is likely to be the subject of customary use. It is certainly not envisaged that on large stretches of the coast long dormant practices might be resuscitated and granted status as customary rights.

The government’s framework envisages a rigorous process for recognising and protecting customary rights. It proposes that the foreshore and seabed be placed unequivocally in the public domain; but that the Maori Land Court be able to recognise ancestral connection, strengthening the ability of tangata whenua to participate in the management of the relevant area. This will coexist with public title, with its guarantees of access and transparent regulation.

The four key principles which will inform the legislation are:

1. Open access to and use of the foreshore and seabed for all New Zealanders;

2. Regulation of the use of the foreshore and seabed by the Crown on behalf of all future generations of New Zealanders;

3. Acknowledgement of the customary interests of whanau, hapu and iwi, and the protection of specific rights where these are identified; and

4. Certainty for those who use and administer the foreshore and seabed.

Clearly no piece of legislation could resolve immediately all the issues with the foreshore and seabed. What it will do, however, is create a fair and reasonable framework for working through individual cases, in the context of a settled concept of public ownership. It will also enable commercial interests (relating to aquaculture, for example) to plan ahead with a large degree of certainty.

Of course the government’s proposal is up for discussion, and we are more than happy to modify it if it can be improved upon.

However, we need to keep in our sights a solution that balances the rights we want all New Zealanders to enjoy and finds a secure place for the longstanding customary practices of Maori with respect to the foreshore and seabed.

I am confident that the package of measures we have proposed would create a middle ground, an equilibrium where the reasonable expectations of all can be accommodated.

It is ironic that the major opposition parties are attacking the government for leaning too much towards Maori, while some Maori and the Tribunal are saying the exact opposite. Perhaps that might suggest to a fair and independent observer that the government has it about right.

Thank you.

Ends

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