BRASH-REPORT
An update from the National Party Leader
No. 28, 21 April 2004
Foreshore and seabed legislation at last
On 7 April, one day before Parliament was to rise for the three-week April recess, the Government finally managed to
cobble together enough votes to enable them to release a package of papers on the proposed foreshore and seabed
legislation.
At first glance, it looked like common sense had prevailed. The first page of the summary briefing note boldly asserted
that "the full legal and beneficial ownership of the foreshore and seabed will be vested in the Crown, to preserve it
for the people of New Zealand". The Bill provides that the foreshore and seabed is to be held in perpetuity, and is not
able to be sold or disposed of, other than by or under an Act of Parliament.
"The vesting will apply across all foreshore and seabed areas except those covered by private titles that have been or
are in the process of being registered under the Land Transfer Act 1952."
Had this been the main thrust of the Bill, it is very likely that the National Party would have voted for it because
this was essentially what we have been advocating since the Court of Appeal created uncertainty around the ownership of
the foreshore and seabed in the middle of 2003.
But alas, that was just the start.
The very next paragraph went on to explain that "the Bill creates a new jurisdiction for the Maori Land Court to
recognise the ancestral connection of Maori groups with particular areas of the foreshore and seabed. The Court would be
required to recognise ancestral connection in accordance with tikanga Maori Recognition of ancestral connection will
bring with it a strengthened ability to participate in decision-making processes over the relevant coastal area."
And if that were not enough to cause hearts to sink, the following paragraph stated that the Bill would create yet
another jurisdiction for the Maori Land Court and the High Court "to identify and recognise customary rights in the
foreshore and seabed." It was argued that any group of New Zealanders - Maori or non-Maori - could seek recognition of
their customary rights, but that in order to recognise a customary right "the Court must be satisfied that:
the application is made on behalf of an established and identifiable group;
the activity, use or practice has been integral to the culture of the group, has been exercised substantially
uninterrupted since 1840 and continues to be exercised; and
has not already been extinguished as a matter of law."
And this is a right which can be exercised by Maori and non-Maori alike?
Yeah right!
The briefing note went on to explain that the Bill would include amendments to the Resource Management Act to protect
these customary rights; that customary rights would "be included among the matters of national importance that all
decision-making under the (RMA) has to have regard to, from National Policy Statements to regional and district plans
and resource consents"; that "neither the (RMA), regulation nor any relevant plan can unreasonably prevent the exercise
of a customary right"; that "the (RMA) will require that if any other party seeks a resource consent for an activity
that would have a significant adverse effect on the exercise of the customary right, then it would (unless the customary
right holder consented) be declined"; and that "customary rights holders will be able to continue the customary activity
without obtaining a consent under the (RMA)".
Little wonder that, when interviewed by Larry Williams on Newstalk ZB that evening, Dr Bill Hodge, constitutional law
expert at Auckland University, said that "Maori have had a complete victory because the principle is that if a non-Maori
wants a resource consent for something like mussel farming and it has some adverse effect on what Maori claim is a
customary right, then the Maori have an absolute veto. So that would give them the position of being able to charge a
fee, rent, whatever you like. Contrary-wise, if they wish to start a mussel farm, then the territorial authority must
grant that wish unless the local authority proves that there's a risk to the environment, rather than those who seek the
permit proving there's no risk. So I think the Maori win both ways: if they want to mussel farm, they can do so unless
the authority proves they shouldn't; and if they want to prohibit somebody else, they've got an absolute right of veto.
I would say that the Maori have got everything they want, practically speaking, in terms of pragmatic use, in terms of
pragmatic veto - they've got it."
This reality was confirmed by the Solicitor General before the Waitangi Tribunal in January, when he told the Tribunal
that the Government's proposals gave iwi who were customary rights holders an effective power of veto over significant
stretches of the coastline.
So the Government is trying to perpetrate a gigantic fraud, telling all New Zealanders that they own the beaches while
telling Maori they have effective control.
The Prime Minister tries to give the impression that her Government is newly responsive to the concerns of New
Zealanders who want one law for all citizens. The reality is very different. If this legislation is passed in its
present form, the door will be opened to a whole new opportunity for rent seeking by iwi at the expense of all other New
Zealanders.
Don Brash