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English Address to Law Students International

Speech: English - Address to Law Students International

Hon Bill English MP National Party Leader

17 September 2003

Address to Law Students International, Lecture Theatre One, Old Government Building, Wellington

The debate about the foreshore and the seabed is important because it is a debate about something New Zealanders regard as a birthright. But it's more important because it brings out in the open a tension that's been building for a decade - the conflict between Maori and constitutional aspirations, and public opinion. Labour has raised expectations of partnership among Maori. And most voters oppose it.

Resolving this will require an act of imagination - it will require us to break free of the current official ways of thinking about the Treaty, because they no longer serve this nation. National has proposed a way forward - one standard of citizenship - New Zealand citizenship.

Both Maori and Pakeha have paid in blood for citizenship, and I mean New Zealand citizenship. Britishness has gone. In steps we have freed ourselves from colonialism, the Empire and legislated discrimination. We have earned in recent decades the opportunity to build on that history, to take the development of our dramatic and young nation to the next step - common citizenship.

Are we ready? Many are not, particularly those who believe New Zealand should be built on apology for its past. A recent Listener article, argued the tired and vapid line that the words "New Zealander" are redneck code for racism.

It is conventional wisdom on the left that we can call this nation New Zealand, but it's wrong to call its people New Zealanders.

National will work for the day when New Zealander is a word we can use with pride for all our citizens.

This is the context in which the foreshore and seabed argument is proceeding, and what a saga already. Let's recap events.

The Appeal Court made a decision that the Maori Land Court had jurisdiction to hear claims to Maori customary title. However, the decision of the Court of Appeal was not just a "narrow and technical" one as described by the Prime Minister in June. The court found that the crown had only acquired a "radical" title to the seabed and foreshore and that none of the general Acts that referred to the seabed and foreshore could be properly construed to extinguish Maori customary title to the foreshore and seabed. This was a significant decision.

The Prime Minister responded to the decision by stating that we'd always considered that ownership of the foreshore and the seabed lay with the Crown, and Labour would move to clarify that by passing legislation. Then nothing happened for two months as public anxiety built. Then came the Government proposals - public domain and four principles: access, regulation, certainty and protection. Maori would be prevented from obtaining fee simple title, and the Maori Land Court would be left to determine and register customary rights.

The Government has also decided not to appeal the case to the Privy Council. However, given that Port Marlborough have indicated that they are appealing the decision, the Government may automatically be a party. The Attorney General has said that the Government will take a "neutral position" in the case even though up until now the Crown has previously argued with the respondents.

Then the hui - and now there a range of statements from Labour Ministers about what all this might mean - co-management, kaitiaki, partnership, and everything up for negotiation except fee simple title.

Labour has twice taken positions, only to back off. Rather than clarity and certainty, we have growing confusion.

Let's look at some of the ideas. I'm no legal expert, and I bring to this discussion the perspective of a layman and a legislator.

What does public domain mean? The Government has made very few statements defining this - two, in fact. The explanation for its use is that the language of ownership or Crown title would be offensive to Maori. The only legal type definition Labour has offered is that it means no one owns the seabed and foreshore.

This term did not come from extensive legal analysis. It came from a focus group. Labour could hardly conceal its delight when a concurrent poll confirmed the focus group research - 57 per cent supported public domain - so it's popular, but does anyone know what it means? Certainly not the Government. Public domain filled a political vacuum, but created a legal one to which I will return.

So public domain is a form of words to reassure the wider public, but not offend Maori.

I argue that this term puts the Government on the back foot from the start, as the hui have shown. The Crown felt compelled to bypass the history of our law and sovereignty, precisely because it had to find a term empty enough to signal a will to negotiate. Labour made the judgement that where ownership concepts left no room to accommodate Maori constitutional aspirations, public domain does. It's no surprise that Maori are taking a vigorous approach to the Government's proposals. Labour has spent the last decade raising Maori expectations of partnership with Government. As they return to the same marae, the korero doesn't feel so friendly now.

What about customary rights? We see Ministers responding to pressure to accommodate broad customary rights, as a trade-off for refusing the opportunity of freehold title. So now there is confused talk of commercial rights. One day they are off the negotiating table, then they're back on again. And different ways of describing a partnership role for Maori, alongside the Crown, in determining what happens to our foreshore and seabed; kaitiaki, and co-management.

Labour has also been elusive over customary rights that may involve excluding access. The Attorney General did not rule it out in Parliament but later said that there will be no loss of "traditional access". It remains to be seen how "traditional access" will be defined.

The original document mentioned none of this. The headlines were exactly as Labour wanted - beaches for all, access guaranteed, public control. And by public control, most people think control will be exercised by the Crown exclusively, dealing on an equal basis with all citizens. And that is the ultimate meaning of the term National has used - Crown ownership - that the ultimate source of rights to our seabed and foreshore is the Crown, and the Crown can exercise those rights alone.

Public domain could mean the same thing, but does not appear to do so. And that's why Labour chose it - the term admits the possibility, and I would say now the probability, that Labour has in mind a dual source of rights.

And so the question must be answered - how will Labour's framework deal with conflicts between customary rights and the rights of all other citizens?

In Australia, this has been dealt with in the Commonwealth v Yarmirr. The High Court held that the common law will recognise native title and interests, by affording remedies for their enforcement and protection through the ordinary processes of law and equity, if there is no inconsistency between the common law and the relevant rights and interests. This means that customary rights must give way when they are inconsistent with a public right.

Parliament has a role here. I would argue that to some extent the New Zealand Parliament has abdicated its responsibility in the area of the Treaty. One of the first things you are taught at Law school is that Parliament is supposed to make the laws, which judges then interpret.

However, Parliament has often failed to be specific about its intentions such as when it has inserted references to the Treaty into law. The consequence has been that the definition of what the principles of the Treaty mean has been left up to the Courts. While the Courts have filled the void that Parliament left, it is time for Parliament to clarify its intent on these issues. I am concerned that this Government may once again pass the buck to the courts, this time to an exclusive Maori Land Court to flesh out these issues. If the Government is going to do this then they need to be clear in legislation about what customary interests can not be reconciled with public rights over the seabed and foreshore.

The Crown should act in good faith, and now define the limits of Maori customary rights, and the rules to resolve conflict. To do otherwise would be to repeat the recent mistakes - allow the courts to make findings that the Crown is bound to overturn.

Customary rights can and should be limited to fact based rights, a term used by the Court of Appeal, rights of particular people in particular places to particular activities, proven in fact. The Court of Appeal has set out some of the hurdles, but in the heat of confronting its own supporters Labour is lowering those hurdles. We hear vague terms like 'ancestral connection.' This is not a continuously exercised activity as the Appeal Court says is required to be proven. Like mana, and kaitiaki, it's an attitude of mind - easily claimed and hard to disprove. And this type of customary right can be satisfied by the Maori Land Court providing iwi or hapu a place at the regulatory table - kawanatanga. Other claimants will be pursuing commercial trade-offs against those rights.

One way or another, public opinion will force the Crown ultimately to protect the customary right of all New Zealanders to unfettered public ownership and use of our foreshore.

The Government has made the point that some of the concepts they are talking about already exist in legislation. They are right - co-management arrangements exist in the conservation and fishing legislation. These customary rights are well defined and ultimately determined by the relevant Minister. These represent a reasonable accommodation of limited customary rights. The conflict with public rights is limited. The traditional right of access and use of the beach is much more extensive and too deeply ingrained to be compared with the more easily defined and limited customary fishing rights.

Ultimately Parliament decides the law, or it should. Times have changed. In the 80's and 90's, the momentum for separate rights came from the judiciary, based on Lord Cooke's principles and were carried on in the bureaucracy and the judiciary.

Outside of the framework of Treaty settlements, government did not have a clear sense of direction, or a public mandate. Now, there is certainly no mandate. Labour's cash for votes Maori development policy, and the strong momentum towards separatism, built up in the last 5 years, has no public support. There is strong cross-party resistance to further movement in that direction, and many want to undo what has been done.

Most New Zealanders do not want the Treaty to define every aspect of public life. Unquestioned assumptions are now questioned and people are looking for open and honest debate. New Zealanders are fair-minded, practical people who will not be told what to do and how to think. We will seek unity rather than separatism - and increasingly, public sentiment will drive the bureaucracy and the judiciary, reversing the dynamics of recent years.

Labour was never well prepared for this debate. Helen Clark heads for the hills because it's too hard. Dr Cullen is prevented from following the courage of his convictions by the client relationship between Maori and Labour. Margaret Wilson simply has no regard or respect for public opinion at all.

Most importantly, Labour is guided by neither political nor legal principle, but by the focus groups and sectoral pressure groups. There is a guide available to them - one standard of citizenship. It's a challenge to the Crown and to Maori to listen to the wider public. It's also a path ahead. We will do our best to make sure New Zealand takes that path.

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