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Why Public Domain Matters

Why Public Domain Matters

Opinion from Peter Dunne - Leader, United Future NZ

In the wake of the latest seabed and foreshore debacle much attention has focused on the term “public domain” and whether its deletion from the draft legislation makes any difference. The simplistic view is that the whole debate is merely over two words that have no legal force.

The truth of course is more substantial than that. It goes to the very heart of the debate the country has been engaged over the last nine months since the Court of Appeal first upset the hitherto tranquil waters about who owned the foreshore and seabed.

In the aftermath, the strong assumption across the country was that the foreshore and seabed belonged – as they always had done – to all the people of New Zealand and that no court or Parliament had the right to overturn. That is what led Helen Clark and Margaret Wilson in what now seem precipitate and knee jerk reactions of the time to assert Crown ownership so unambiguously. The problem was that the legal basis going back to 1854 for Crown ownership was anything but unambiguous with various governments being advised up to as recently as the 1980s that simple Crown ownership of the foreshore and seabed was very difficult to determine. And resolving that ambiguity has been what the last nine months has been all about.

The concept of public domain was proposed for two broad reasons. The first was to make it as clear as possible that all New Zealanders had equal rights of access to and enjoyment of the foreshore and seabed, and drew very much on the old English notion of the “common” land, reflected to this day in areas like the common in most English towns, and the Auckland Domain and similar domains throughout our own country. The second reason was to strengthen the ambiguous nature of Crown ownership. As it stands, there is nothing to stop a future government for ideological reasons determining to privatise the foreshore and seabed, nor is there anything to prevent them giving away tracts of the foreshore and seabed for exclusive ownership as part of a Treaty settlement process, for example. The moral force of the additional concept the foreshore and seabed being held in perpetuity as public domain for the people of New Zealand would have made both possibilities more unlikely. In that regard, public domain provides far more specificity and security for current and future generations than the Bill’s current limited Crown ownership proposal does.

The political manoeuvrings of recent days change none of that. United Future makes no apology for not being prepared to cave in and accept a lesser standard of ownership, just to make up the numbers. This issue is far more important than political expediency and far more substantial than just two words. Since June last year New Zealanders have been angered, embittered, and frustrated over this issue. They know what they want – a clear, unambiguous recognition of their common ownership of the foreshore and seabed and an assurance that will not be changed – and they expect Parliament to act to uphold that wish. They do not expect major issues of this nature that go to the core of our national birthright to be determined by last minute, shabby backroom deals brought on by the desperate need for a majority because of internal dissent. Yet, sadly, that is precisely what they have ended up with – and the precious notion of our common ownership has paid the price.

It is the worst possible Easter for all New Zealanders which is why United Future will have no part of it.

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