Cullen Address To Chapman Tripp Business Dinner
Hon. Michael Cullen
11 February 2004
For delivery at: 9.30pm Wednesday 11 February 2004
Address to Chapman Tripp Business Dinner
Level 6, 1-13 Grey Street, Wellington
I have been asked to say a few words about the foreshore and seabed issue. This is clearly one of the most challenging items on the government’s agenda – both legislative and political – for the year ahead.
The challenge lies both in the complexity of the issues and relationships involved, and also in the ease with which the debate can be sidetracked by those taking extreme positions on the far right (through exciting irrational fears) and on the far left (through promoting unrealistic expectations).
This began as an argument over a point of law, and hence a major law firm such as this one is a very appropriate venue for this discussion. As is often the case, a great deal can hang upon one point of law. Things which are commonly assumed to be cut and dried can, through a shift in the interpretation of a few words, be revealed as fluid and in need of clarification.
Thus the Court of Appeal’s decision last June that the Maori Land Court could hear claims and investigate the ownership of the foreshore and seabed raised some fundamental questions of constitutional, administrative and property law. I think it is important that we remind ourselves at this point of what it was that the court actually said and what it did not say.
It did not say that Maori owned the foreshore and seabed. That was not even the question before it. The question before it was whether the jurisdiction of the Maori Land Court extended to the foreshore and seabed or whether - in effect - all Maori indigenous rights had been extinguished.
The court found that the Maori Land Court did have the jurisdiction to hear claims but was careful to venture no further. It left open questions as to whether the claimants would succeed in establishing any customary property and stated that the extent of any interest remained “conjectural” but was likely to pertain to “relatively discrete areas.”
The quandary this created for the government is that the Maori Land Court would have had to apply the Te Ture Whenua Maori Act 1993 but this Act was intended to apply to dry land only and is incapable of recognising a property right which does not lead to fee simple title.
This is the significance of the legal advice supplied in Professor Paul McHugh’s submission to the Waitangi Tribunal. He attested that the New Zealand courts would most likely be swayed by comparable overseas cases and would find that the common law cannot recognise exclusive ownership of the foreshore and seabed.
But, while Professor McHugh, a world expert in this area, found there could be no exclusive ownership he also stated that he believed there may be very substantial Maori rights over the foreshore and seabed.
That is why leaving the matter to resolve itself gradually through the courts was never a viable option. On the other hand, no principled government could simply legislate to extinguish those rights because that would be theft.
Hence the decision to set out a framework to provide a clear and unified system for recognising rights in the foreshore and seabed, and to enshrine that framework in legislation, after seeking submissions from all those affected.
This scenario is quite familiar to anyone involved with the law and law reform. There is always a tension between the need for the law to provide certainty, and the countervailing demand that it keep pace with social and economic change. And there is a creative tension between statute and common law. Despite the best efforts of jurists, words and concepts change their meaning over time. A tablet of stone can over time become a stumbling block.
As a minister of the Crown and as Leader of the House, I live with these tensions everyday. I have to say, however, that it is irritating when one is grappling with complexities and nuances of an issue such as rights relating to the seabed and foreshore to find the debate highjacked by extremists on both sides with their mix of cynicism and wishful thinking, and their simplistic, but ultimately unworkable, solutions.
The government’s position on the foreshore and seabed issue is grounded in fact rather than myth and is aimed at finding workable solutions that are likely to be durable going forward.
Fact number one is the existence of customary rights. This is attested to by both New Zealand and overseas jurisprudence. Such rights are established by long practice; by a continuous relationship between a community and a specific area of foreshore and seabed. Although they do not involve ‘ownership’ as such, they are property rights nevertheless. One can draw analogies with any number of other rights, such as rights of way and similar modifications to titles which place an obligation on the owner of land to make provision for the interests of other parties.
Like any other property right, customary rights, where they are established, should not to be taken without just compensation. And like any other property right, they must be exercised in a context of other, competing, rights belonging to other individuals and to the public. They can be regulated or moderated – to a certain extent – for broader community purposes
There are those who wish the facts were otherwise. Dr Brash has recently put forward a version of the Procrustean bed as a solution. Procrustes, you will remember, resolved the mismatch between his long-legged guests and his short bed by sawing his guests off at the knee. In other words, if the facts are uncomfortable, extinguish some of them. Specifically, Dr Brash has proposed legislation to restore the status quo prior to the Court of Appeal’s decision, which he believes was a situation in which customary rights were severely limited.
This idea is dangerous and naïve. Dangerous because it implies extinguishing of a property right without just compensation (a very curious thing for a supposed devotee of neo-classical economics to propose), and hence it calls into question whether other established property rights might suffer the same fate. And naïve because it misunderstands the dynamic relationship between the common law and legislation. To seek to pass a law that enshrines what lawmakers believe was previously the status quo is a foolhardy thing to attempt and will almost certainly generate unexpected results.
Dr Brash appears to argue that the Treaty of Waitangi voided any customary rights over the seabed and foreshore, replacing them with the generic rights that pertain to all New Zealanders. We believe this position is untenable; the Treaty protected such rights and went on to commit both sides to working them out in the context of a new and unified nation.
Others see a world very different to Dr Brash’s. Instead of a Procrustean bed, they are proposing a kind of Roman orgy. If the bed doesn’t fit, throw mattresses on the floor and invite everyone in for a good time. Under this scenario customary rights would proliferate and breed, and extend to every rockpool and sandbar.
This view also takes little account of the facts. The weight of legal precedent indicates that customary rights are recognised and protected only where they have been exercised more or less continuously. It is hard to argue that a practice is in fact a ‘custom’ if it has fallen into abeyance over many years. In this instance, past history must be corroborated by recent practice. It should also be remembered that this framework is about uses other than fishing as customary fishing rights have already been addressed through the Treaty of Waitangi Fisheries settlement.
What this means is that a relatively small proportion of the foreshore and seabed is likely to be the subject of customary use. It is certainly not envisaged that on large stretches of the coast long dormant practices might be resuscitated and granted status as customary rights.
The government’s framework envisages a rigorous process for recognising and protecting customary rights. It proposes that the foreshore and seabed be placed unequivocally in the public domain; but that the Maori Land Court be able to grant ‘customary title’ to Maori as a way of recognising the continuous connection of tangata whenua to the foreshore and seabed and strengthening their ability to participate in the management of the relevant area. Specific customary rights, not already recognised through fisheries legislation, will be able to be registered against that title. Customary title would coexist with public title, with its guarantees of access and transparent regulation.
It would most definitely not imply ownership in fee simple. Instead it would be one feature of a larger framework for the foreshore and seabed based upon four key principles to be enshrined in the legislation:
1. Open access to and use of the foreshore and seabed for all New Zealanders;
2. Regulation of the use of the foreshore and seabed by the Crown on behalf of all future generations of New Zealanders;
3. Acknowledgement of the customary interests of whanau, hapu and iwi, and the protection of specific rights where these are identified; and
4. Certainty for those who use and administer the foreshore and seabed.
I do not for a moment think that the legislation will resolve immediately all the issues with the foreshore and seabed. What it will do, however, is create a fair and reasonable framework for working through individual cases, in the context of a settled concept of public ownership. It will also enable commercial interests (relating to aquaculture, for example) to plan ahead with a large degree of certainty.
We are not interested in attempting to turn the clock back, either to the beginning of 2003 (in the case of those nostalgic for the most recent status quo) or to the period prior to 1840 (in the case of some Maori). What we are proposing is a legislative framework for the 21st century, which balances the rights we want all New Zealanders to enjoy and finds a secure place for the longstanding customary practices of Maori with respect to the foreshore and seabed. We are confident that there is a middle ground, an equilibrium where the reasonable expectations of all can be accommodated.