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Foreshore and seabed: review results and next steps
New Zealanders should know in the next two months the new shape of legislation to govern access to the country's foreshore and seabed.
The government-appointed Ministerial Review Panel has just released its report after undertaking a review of the Foreshore and Seabed Act 2004. Entitled Pakia ki uta, Pakia ki tai: Report of the Ministerial Review Panel, it recommends repealing the Act and replacing it with interim legislation.
The panel, comprising former Maori Land Court Chief Judge and Waitangi Tribunal Chairperson Eddie Durie, legal academic and historian Richard Boast, and cultural and language expert Hana O'Regan, was appointed after the National Party and Maori Party agreed to review the Foreshore and Seabed Act in their post-election confidence and supply agreement last November.
As well as repealing the existing legislation, the panel has recommended interim legislation be enacted to allow for expeditious resolution of issues based on a Treaty of Waitangi framework and "core principles" (e.g. the principle of compensation). It recommends two proposals: a National Policy Proposal featuring a one-off settlement, establishment of a bicultural body with oversight of the coastal marine area and responsibility for developing more detailed legislation, and a separate Regional Iwi Proposal focussing on regional and national negotiations between the Crown and hapu/iwi. A combination of both is also an option.
The government is now considering the report in detail and is expected to announce its proposed way forward in the next two months.
How the issue began
The recent foreshore and seabed issues began in the 1990s when iwi, Ngati Apa, sought a mussel-farming licence from the Marlborough District Council to farm in its traditional rohe (area). The licence was declined and Ngati Apa appealed the decision in the courts eventually ending up in the Court of Appeal.
In 2003 the Court of Appeal ruled (in Attorney-General v Ngati Apa [2003] 3 NZLR 643 (Ngati Apa)) that the Crown was wrong to contend that certain statutes affecting the foreshore and seabed had had the effect of extinguishing Maori customary title (as it might exist) and also ruled that the Maori Land Court had the jurisdiction, under Te Ture Whenua Maori Act 2003, to determine whether any part of the foreshore and seabed was still Maori customary land.
Within days of the Court of Appeal decision, the then Labour-led government controversially moved to ensure ownership in the foreshore and seabed was vested in the Crown, resulting in the enactment of the Foreshore and Seabed Act.
What the panel reviewed
The panel was given four areas to report on in its Terms of Reference:
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The nature and extent of the mana whenua and public interests in the coastal marine area prior to Ngati Apa;
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Options available to the government to respond to the Court of Appeal decision in Ngati Apa;
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Whether the Foreshore and Seabed Act effectively recognises and provides for customary or aboriginal title and public interests in the coastal marine area and maintains and allows for the enhancement of mana whenua; and
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If the panel had reservations that the Foreshore and Seabed Act does not provide for the above, options on the most workable and efficient methods to recognise and provide for both customary and public interests in the coastal marine area; and in particular, streamlined processes to recognise and provide for interests.
In its work the panel considered how other Commonwealth jurisdictions recognise and provide for customary and public interests in the coastal marine area and public submissions and reports made for the Foreshore and Seabed Bill (when the legislation was in policy stages) and the Waitangi Tribunal's Report on the foreshore and seabed policy. It also consulted with Maori and others through public meetings and hui.
Nature and extent of mana whenua and public interests
The panel confirmed that before the Ngati Apa case the whole of the coastal marine area to certain outer limits was subject to native or aboriginal or customary title unless it was evident that title to any specified part had been clearly and plainly extinguished. Any statutory regime would need to show that the customary title was fairly extinguished having regard to the principles of the Treaty of Waitangi. It was unclear whether customary interests amounted to exclusive ownership rights.
The legal rights of the general public before the Ngati Apa case and until the Foreshore and Seabed Act were generally confined to navigation and fishery rights, although the panel acknowledged that the national culture now recognises that the coastal marine area is a public recreation ground for all New Zealanders.
Options for government response to Ngati Apa
A number of "realistic" options available to the government to respond to the Ngati Apa case were outlined by the panel. These included appealing to the Privy Council, doing nothing and leaving the courts to decide, amending the statute-based Maori land law (with necessary Maori support), including foreshore and seabed aspects in Treaty settlements, negotiating a nationwide settlement with hapu and iwi, and substituting a special statute to govern customary and public interests in the coastal marine area.
Does the Foreshore and Seabed Act recognise and provide for Maori and public interests, and allow for enhancement of mana whenua?
The panel considered that the Foreshore and Seabed Act was discriminatory against Maori, and took away the right of Maori to go to court to have the uncertainty resolved. Unnecessary and extremely restrictive thresholds for the recognition of customary interests effectively reduced their nature and extent. The timing and process for the Foreshore and Seabed Act, and the balancing of customary and public interests in the foreshore and seabed, were both considered to be wrong. The panel noted that the Foreshore and Seabed Act failed to enhance mana whenua, and advanced general public interests at the "considerable expense" of Maori interests.
Options for customary and public interests in the coastal marine area
After reviewing various models, the panel favoured a "mixed" model to recognise and provide for customary and public interests in the coastal marine area. This could include "discrete components" including a nationwide settlement, allocation of rights and interests, local co-management, and specific access and/or use rights. This approach would acknowledge that entitled Maori (those with traditional interests in the coastal marine area) have some form of customary or tikanga title to all foreshore and seabed and that this title needs to be balanced with the public's access, navigation, and fishery interests over these areas. Returning to the "judicial" model which existed before the Ngati Apa decision would likely be inefficient and expensive and could result in a "patchwork of litigation". Reconciling competing approaches to the foreshore and seabed was more important to the panel.
To achieve the "mixed" model, the panel offered two preferred options, based on a "Treaty of Waitangi" framework and a set of core principles (e.g. principle of reasonable public access, principle of good faith). The National Policy Proposal constitutes a one-off national settlement that establishes a bicultural body to oversee the whole coastal marine area. The Regional Iwi Proposal would focus on achieving regional and national negotiations directly between the Crown and hapu/iwi – with the Crown representing the public interest. Under each option customary usages, customary authority, and ownership, would all need to be considered and settled.
Both options rely on the repealing the Foreshore and Seabed Act and enacting new interim legislation to provide for, among other things, the legal title to be held by the Crown in trust for those later determined as entitled. Any new legislation should also respect negotiations substantially completed with hapu/iwi (e.g. Ngati Porou), should provide compensation where private property rights in the coastal marine area, of any kind, were extinguished, and for reasonable public access to the coastal marine area.
Matters as requiring separate treatment were identified including coastal marine law, access to the coast, and local authority interests.
What's next?
The government's response to the report so far has been limited with Justice Minister Chris Finalyson indicating the government will consider the report's recommendations before making decisions on the future of the current legislation. Importantly for many people, the Maori Affairs Minister and Maori Party Co-Leader Dr Peter Sharples acknowledges that balancing customary rights and the interests of the wider public would be the focus if the Foreshore and Seabed Act was repealed. A formal government response is expected in the next two months.
View the report: Pakia ki uta, pakia ki tai: Report of the Ministerial Review Panel
