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A policy for the future

11 February 2004 Media Statement

A policy for the future

Deputy Prime Minister Michael Cullen said the challenge for New Zealand in negotiating a way through the foreshore and seabed issue was to avoid the extremes of right and left and focus on a policy to take the country forward.

In a speech notes for a Wellington business dinner this evening, Dr Cullen said the issues and relationships involved were complex and that there was a risk the debate would be sidetracked by the scaremongering of the far right or the unrealistic expectations of the far left.

“The Court of Appeal judgment which started the process did not find that Maori owned the foreshore and seabed, only that Maori indigenous rights had not been extinguished and that they should be able to pursue claims through the Maori Land Court.

“The quandary this created for the government was that the Maori Land Court would have had to apply the Te Ture Whenua Maori Act 1993 which was intended for 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 by Professor Paul McHugh, a world expert in common law recognition of indigenous rights, in his submission to the Waitangi Tribunal last month.

“Professor McHugh attested that the New Zealand courts would most likely follow international precedent and find that the common law cannot recognise exclusive ownership of the foreshore and seabed. But he went on to say that this did not preclude the possibility of very substantial Maori rights.

“These rights are recognised by both New Zealand and overseas jurisprudence and are established by long practice. Although they do not involve ‘ownership’ as such, they are property rights nevertheless and to confiscate them is theft.

“Hence the decision to create a legislative framework which guarantees traditional rights of public access, reinforce’s the Crown’s role to regulate the foreshore and seabed on behalf of all future generations, acknowledges and protects Maori customary interests and provides certainty,” Dr Cullen said.

“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 solution 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,” he said.


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