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Mapp Speech to Law and Politics Conference

Dr Wayne Mapp, MP North Shore: Speech to Foreshore, Law and Politics Conference 4pm, October 4

"What should the Centre-Right Response to the Foreshore Issue be?"

The foreshore and seabed issue is ultimately a question of how we perceive our nationhood. All nations are products of their history. In New Zealand the transfer of sovereignty by an indigenous people to a powerful colonial nation through the Treaty of Waitangi will forever mark our distinctiveness. Our history has been marked by wars, racial strife, striving for equality and reconciliation of past grievances. Experience tells us that resolving sharp issues cannot rest on the premise of one group gaining everything and the other having nothing. A balance is required.

New Zealanders know this reality. They know the resolution of difficult issues requires respect and generosity. The test is fairness. Each must allow the other a fair sense of entitlement.

National understands these principles. They are at the forefront of our solution to the issue of the foreshore issue. First, that there is Crown ownership of the foreshore and seabed on behalf of all New Zealanders. It is our common heritage, available for all people. Second, existing freehold title is to be respected. Third, we also recognise the existence of customary rights. Of course, the protection of Maori fishing rights is specifically protected by Article II of the Treaty of Waitangi, and the whole of the fisheries settlements rest on the recognition of these Treaty rights.

Crown ownership of the foreshore and seabed is what everyone, including Labour, understood to be the case. It is hardly a novel proposition. Yet now it is said by some to be racist. It seems rather extraordinary that a proposition that has been a common understanding for generations is now under such severe attack. Crown title is not just a question of ownership, it also stands for the unity of our nation where the Crown acts in the interests of all New Zealanders. That is the meaning of one standard of citizenship. It is a testament to the values and experiences that all New Zealanders have in common.

Crown ownership does not preclude customary rights, which are able to exist within the context of an overriding ownership on behalf of everyone. It is worth noting that the Court of Appeal case, Ngati Apa v Attorney General concerning the Marlborough Sounds, arose out of the issue of the granting of marine farm licences, not the ownership of foreshore and seabed.

The ownership of the foreshore and seabed is already vested in the Crown. This is clearly stated in the Territorial Sea, Contiguous Zone and Exclusive Economic Zone Act 1977 and the Foreshore and Seabed Endowment Revesting Act 1991. The Court of Appeal has cast doubt on this fact, but I believe their reasoning is wrong, certainly as it applies to the foreshore and seabed immediately adjacent to the foreshore.

The Crown acquired sovereignty of New Zealand by virtue of the Treaty of Waitangi. One of the incidents of sovereignty is dominium imperium. It means that all the land, including the foreshore and seabed, is subject to the Crown's ultimate ownership. If there is no private ownership, then the owner is the Crown. However, Crown ownership is subject to aboriginal title, which clearly predates the transfer of sovereignty. This is the reason why the Treaty of Waitangi provided for the right of pre-emption; that is, Maori owned customary land could only be sold to the Crown. That then enabled the Crown to create fee simple title. Maori customary title was also extinguished through the Maori Land Court. In essence, the customary title was substituted with a statutory title, with specific owners recorded on the title. A statutory declaration of ownership has the same effect as pre-emption. It also serves to extinguish the customary title. Court of Appeal Judges Keith and Anderson acknowledge the rule set out

This is what has happened with the foreshore and seabed. Sir Douglas Graham is in no doubt; "In any event, the Government believes any customary title was extinguished years ago either by the Crown assuming ownership as part of a sovereign right or more likely pursuant to specific statutes such as the Territorial Sea and Exclusive Economic Zone Act and the 1984 Public Reserves Act (which dealt with the foreshore)" (NZ Herald 27 June 2003).

However, the Court of Appeal now has a different view, by suggesting that the various statutes did not extinguish customary title, and that earlier decisions were founded on faulty law. In particular, the Court of Appeal rejected the Ninety Mile Beach case (1963) NZLR 461, stating that the Court had relied on the Wi Parata case (1877) NZLR 72. This latter case is now widely discredited. The Court of Appeal in the 1963 Ninety Mile Beach case did not primarily rely on Wi Parata. Instead the Court relied on the relevant statutes, particularly the Crown Grants Act 1866 and the Harbours Act 1878 to determine that the Crown had extinguished customary title.

The decision of the Court of Appeal not only overturns previous law, but it also permits a change of the ownership status of foreshore and seabed. This moves the Court well beyond merely interpreting the law, it now prescribes a whole new set of customary rights that previously were thought to no longer exist. Such an approach by the Court invites legislative action.

Fortunately Parliament has the sovereign legislative power to clarify the position. It can pass law confirming the Crown ownership, and this was exactly what the Government promised in July. It is fatuous for the Government to suggest the Crown title is less appropriate than "public domain", because only title (whether Crown or private) can be sold. No-one has suggested that the Crown will start selling foreshore. There is very little privately owned foreshore today, which certainly shows there have not been any widespread sales in the past. It is certainly less than the 1% suggested by John Tamihere. The concept of "public domain" is in essence simply another way of describing Crown ownership, and the Government ought to be honest about that. Instead the Government has embarked upon a process to whittle away the traditional universal right of access and use. Public domain was first announced as a means of ensuring the public would always have access. The Government has now indicated that that concept is negotiable. The Government's only bottom line is no new freehold title and no loss of "traditional access". Does this mean that Maori will have the right to exclude people in certain circumstances?

It is a spectacle of heightened expectation, sleight of hand and uncertainty for everyone. Maori expectations have been unfairly raised when they cannot be fulfilled.

This highlights our second principle. National supports private property rights. It is one of the fundamental principles of a free society that private property is protected by law. Where existing fee simple title, whether general land or Te Ture Whenua land, includes foreshore or seabed within the title, then this must be respected.

The Government deliberately released its report on coastal access at the time of the foreshore debate to confuse the issue. The Government has now raised the spectre of cutting across private property rights by allowing unfettered public access on to private property in order to gain access to publicly owned land. It intends to do so without offering any compensation for the taking of private property rights. This is nothing but political deviousness. Not surprisingly, land owners everywhere are forthrightly resisting this invasion of their property rights.

The third issue is more contentious; the extent of customary rights, recognised in the Treaty of Waitangi and derived from the Maori position as the indigenous people, who transferred sovereignty to the Crown subject to the protection of these rights. The issue of customary rights has to be dealt with, and there is ample precedent to do so. The Marlborough Sounds case was generated by the difficulty that iwi had in obtaining marine farm licences. This was an issue that was not dealt with in the 1992 Fisheries Legislation. The Fisheries Legislation provides for 20% of newly created fish quota to be granted to Maori, through the Treaty of Waitangi Fisheries Commission. A similar mechanism could be developed for grants of marine farm licences. In fact, existing marine farmers would welcome this outcome if a better form of ownership was determined for all marine farms at the same

Of course as the debate has evolved the customary rights claimed have increased. At the extreme they are tantamount to ownership, and certainly include the right to control and therefore exclude access. There are more moderate views of co-management, which are already found in relation to the conservation estate. There are certain beaches of great significance to Maori. Maketu in the Bay of Plenty is an obvious example. There have been centuries of intensive use at Maketu. There are already extensive Te Ture Whenua riparian rights. No-one in the Bay of Plenty would be surprised if Te Arawa were to have a management role in Maketu.

These are issues where goodwill and tolerance are required, and this is expected from political parties. New Zealanders expect fair solutions that do not divide the community. Everyone will need a clear sense that their rights have been recognised and protected.

Of course, this is ultimately much more than a foreshore issue. It is also about how the people of this nation relate to one another. We pride ourselves in our tolerance, but this is often lacking, in both the Pakeha and Maori extremes. It is crucial that we do not allow the extremes to crowd out those who seek reasonable solutions that respect each other's interests. At the core of National's solution is our desire to promote unity between all New Zealander's.

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