Hon Michael Cullen
21 April 2009 Media Statement
Cullen submits Labour’s foreshore proposals
Restoring the ability of iwi to apply for an award of customary title to the foreshore and seabed is being proposed by
Labour, says Labour List MP Michael Cullen.
The recommendation is included in a submission made by Dr Cullen on behalf of the Labour Party to the Ministerial Review
Panel on the Foreshore and Seabed Act, which recommends changes to, but not repeal of, the Act.
The submission also recommends that the Act retain the current codification of access rights, navigation and other usage
rights for New Zealanders.
“Any customary title awarded should not be able to be converted into freehold title, which would enable its sale.
Applications should in the first instance be made to the Maori Land Court, with rights of appeal to the High Court,” Dr
“My submission proposes that the statutory codification of the common law tests established under the Foreshore and
Seabed Act, which measures the extent of customary interests in the foreshore and seabed, should be retained.
“Under the current Act, the High Court uses the codifications to determine whether a group may have gained a customary
title (called ‘territorial customary rights’ in the Act), under common law, if the Act hadn’t removed the ability to
“I have also suggested that the panel might consider removing the provision in the Act for customary rights applications
to be sought by non-Maori,” Dr Cullen says.
“There appear likely to be no groups that would qualify for this provision in any case.
“Labour believed at the time of the Ngati Apa decision that it would have been unacceptable not to respond to the Court
of Appeal ruling in a definitive way. The finding created widespread uncertainty that a responsible Government needed to
“We responded with the best solution possible at the time. But I have always regretted the fact that National and other
parties refused to enter into proper discussions on this issue, so that a broad political consensus – as has been
established with the Treaty settlement process - could be reached.
“As a result compromises were required. The review provides a chance to revisit the Act and Labour won’t use the issue
as a political football,” says Dr Cullen.
“The matter must be resolved once and for all. Now that National claims to have disavowed its previous ‘Iwi vs Kiwi’
stance and a review has been established, the potential for that broad consensus to be reached appears possible.
“Further thought needs to be given to what powers the possession of a customary title would involve. Labour believes the
provisions in the Act relating to a foreshore and seabed reserve and the agreement reached with Ngati Porou by the
Labour Government provide a good template.
“The current agreement with Ngati Porou should be maintained but adjusted to reflect the ability to gain customary title
without the need for further court action.
“It must be remembered that the Ngati Apa ruling never said, nor implied, the oft-repeated assertion that Maori ‘owned’
most or all of the foreshore and seabed under the common law,” Dr Cullen says.
“On the contrary, it found there would be many hurdles in fact and in law before any such claim could be upheld.
“The reality is that while iwi and hapu around the country will be able to establish they have certain customary rights
to the foreshore and seabed, in most cases it is unlikely that this bundle or rights would amount to a customary title.
“The submission proposes public access rights must be retained and there should be an explicit ban on charging of access
fees and the right to sell any foreshore or seabed held under customary title.
“It should be stated that any foreshore and seabed held under customary title should be administered for the common use
and benefit of all New Zealanders. It is further proposed it be stated that the Crown title to the foreshore and seabed
should be administered for the common use and benefit of all New Zealanders,” Dr Cullen says.