Appeal Court Ruling Set To Open Iwi Claim Floodgates

By Muriel Newman

Yesterday's Court of Appeal decision, that Maori claims for the foreshore and seabed of the Marlborough Sounds could go ahead and be heard in the Maori Land Court, is worrying news for most New Zealanders.

The Maori Land Court is known as a court that protects Maori interests and, as such, any decision in favour of such existing rights - if upheld - would set the precedent in law. This is very different from the situation regarding Waitangi Tribunal recommendations, which are not binding on the Crown.

Essentially, the Appeal Court's decision means the floodgates could be opened for Maori claims for the foreshore and seabed. Such claims could include beaches, estuaries and harbours, boat ramps, jetties and moorings, as well as any reclaimed land - along with the private and commercial buildings, ports, parks and other amenities that now exist.

The Court of Appeal's judgement determines that the Maori Land Court is the proper court to decide whether the nationalisation of property rights to the foreshore and seabed over-rides Maori customary rights. If the Maori Land Court upholds this Marlborough Sounds claim, then it would undoubtedly be the start of a groundswell of such claims around the country.

This case goes back to 1996, when South Island iwi lodged the claim in response to concerns about Marlborough Sounds marine farm consents. In 1997, the Crown appealed to the High Court against the Land Court's right to hear the case, and won. But, yesterday, the Court of Appeal overturned that decision, and ruled that the Maori Land Court was the proper court to hear the case.

As a result, the Government now has three courses of action: it can do nothing, it can appeal the case, or it can use its legislative powers to clarify the situation.

Doing nothing will be a strong temptation for Labour, who has openly courted the Maori vote all along. Many of the social initiatives it has introduced since 1999 have provided lucrative funding `by Maori, for Maori'. It has enshrined Maori benefits in legislation, giving preference on the basis of race rather than need. Special healthcare subsidies for Maori, grants of tens of thousands of dollars for upgrading private homes for Maori, and special Maori quotas in education are all further examples of privilege - along with, of course, the establishment of the controversial Maori TV. To do nothing would avoid any risk of Labour being accused of turning it's back on Maori.

If however, Labour decided to act in the best interest of all New Zealanders, then it should look to either appeal the case or introduce legislation.

The paradox for Labour is that the court to which it would have to appeal is the Privy Council, and what sweet irony it would be to see the Labour Government having to go cap-in-hand to the very court it is attempting to abolish access to.

Labour's back door attempt to abolish the right of appeal to the Privy Council is unconstitutional. New Zealand is too small a country to ensure that those asked to judge high profile cases can possibly remain independent. New Zealand is a country which, while observing our common law tradition, is not subjected to the sort of national media frenzy that can influence judgements. Having an appeal court, however, is an essential judicial safeguard. So far, Attorney-General Margaret Wilson - in her dangerous game of trying to undermine the need for the right of access to the Privy Council - has provided no evidence at all that her proposed Supreme Court could possibly be immune from similar influence.

However, in light of her attack on our rights to the Privy Council, it is highly unlikely that she will recommend that the Government appeal the decision.

In my mind, it is the third course of action that offers the only hope of fairness and justice for all New Zealanders. The Government declared that the Waitangi Tribunal's recommendation, that oil and gas reserves are Treaty rights, was outrageous and off limits - given the fact that these resources were vested to the Crown by legislation passed in 1937. It should then clarify the situation for the seabed and foreshore by introducing legislation that extinguishes customary rights in the national interest.

Since yesterday's decision, Maori have claimed that non-Maori have nothing to fear from the collective ownership of the foreshore and seabed. They say that the sky hasn't fallen in as a result of the transfer of the lakebed of Lake Taupo to Tuwharetoa in 1993. However, further investigation shows that - although an important condition of that transfer was unfettered access to the public for recreation and scientific research - in 2001, when a Crown Research Institute wanted to undertake geothermal research on the lakebed, the iwi demanded such exorbitant fees that access was blocked. As a result, important monitoring of the bed of that huge crater failed to take place.

This issue needs urgent attention. Already, as a result of the Maori claim in Marlborough, successful marine farming operators have gone offshore looking to establish enterprises in areas where their investment will not be put at risk. New Zealand simply cannot afford to loose such entrepreneurs, nor can we allow anxiety to develop over the issue, or an increase in the unreal expectations of iwi of windfall gains, and a growth in endless wasteful litigation with its escalating legal aid bill.

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