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Hon Dr Michael Cullen: Foreshore and Seabed Bill

Foreshore and Seabed Bill

1st reading on the Foreshore and Seabed Bill.

6 May 2004 Speech Notes

Mr Speaker, I move that the Foreshore and Seabed Bill be now read a first time.

At the appropriate time I intend to move that the Foreshore and Seabed Bill be referred to the Fisheries and Other Sea-related Legislation Select Committee for consideration and that the Committee have the authority to meet at any time while the House is sitting except during questions for oral answer, during any evening on a day on which there has been a sitting of the House, and on a Friday in a week in which there has been a sitting of the House, despite Standing Orders 191 and 194(1)(b) and (c).

Mr Speaker, the introduction of this Bill represents a major step forward in resolving some complex legal uncertainties that resulted from a judgement last year by the Court of Appeal.

Until last year most New Zealanders understood it to be a settled principle that the public foreshore and seabed was owned by the Crown on behalf of all New Zealanders, with free access for recreational purposes under the appropriate safeguards of the Resource Management Act and other acts of Parliament.

So too, most New Zealanders were aware of the special importance that parts of the public foreshore and seabed held for particular Maori as a result of a long history of continuous use and connection to that part of the coast. I believe most New Zealanders respected those customs and were happy to accommodate them, and to modify their own use of the seabed and foreshore to allow that to happen.

What changed last year was 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.

This decision raised some fundamental questions of constitutional, administrative and property law. To allow claims regarding the public foreshore and seabed to be heard by the Maori Land Court would have serious repercussions. The Maori Land Court operates under 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 short of fee simple title.

The Act was not intended to apply to the foreshore and seabed.

At this point I need to make clear to the House just what the Bill means by "foreshore and seabed". First, it is talking about the public foreshore and seabed, not those parts held in private title. Second, it is not talking about the sand dunes but the area beyond that is covered at high tide.

Technically it is the marine area bounded on the landward side by the high water line at mean high water spring tides extending on the seaward side to the twelve nautical mile limit of the territorial sea. It also includes the air and water space above and the subsoil and bedrock below.

A central aspect of the Bill concerns the legal recognition and protection of customary rights. This derives from the mainstream of our jurisprudence. Such rights are established by long practice, and by a continuous relationship between a community and a specific area of foreshore and seabed since 1840. 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 ability to seek legal recognition and protection for customary rights based on uses or activities will be open to any group of New Zealanders.

The government is not aware of the existence of any customary rights that might meet the statutory tests in the Bill, other than Maori customary rights, but nevertheless considers it appropriate to retain the capacity to explore this possibility in the courts.

Customary rights once recognised will be exercised and protected in the context of the legislation that regulates activities in the foreshore and seabed - the Resource Management Act. This Bill includes several amendments to that Act. In particular, a customary right holder will be able to continue to exercise the customary right without obtaining a resource consent under the Act. Moreover if another party seeks a resource consent for an activity that would have a significant adverse effect on the exercise of a customary right, then the application would (unless the customary right holder consented) be declined.

In seeking ways to acknowledge customary rights, it is worth noting that not all solutions lie in the law. General social norms of courtesy and respect for others also apply. It is incumbent on all of us to make sure that the privilege of enjoying open and free access and use of the public foreshore and seabed is exercised with care and courtesy, and with respect for the rights and interests which others have.

I have noted that the Bill enables applications to be made to the High Court to investigate the full extent of the rights that may have been held at common law. The Court would apply the common law, and would be able to look at the full set of rights and interests in the claimed area as it made an overall assessment of whether the cumulative bundle of rights in that area would have amounted to full territorial customary rights.

If the Court makes a finding that a group would have held territorial customary rights, it would refer the matter to the Crown. The Crown will undertake discussions with the group, in good faith, on redress. Redress could take a number of forms, as it has in the case of the negotiated settlement of well-founded historic Treaty grievances. Much will depend on the nature and extent of the rights and interests involved.

It is unfortunate that in these last few months the debate on these matters has threatened to be sidetracked by those taking extreme positions, that either excite irrational fears or promote unrealistic expectations. Mr Speaker, in this context it is as important to set out what the Bill does not do as what it does.

The Bill does not grant Maori with a recognised ancestral connection a power of veto over the coastline of New Zealand - instead it enables them to participate in regional planning for the public foreshore and seabed, in the same manner that Maori have been involved across the country since the enactment of the Resource Management Act in 1991.

The Bill does not deny the customary rights that New Zealanders have long undertaken in particular areas of the public foreshore and seabed - instead it provides a legal avenue for recognising and protecting them.

The Bill does not deny that in some cases these rights may have amounted to exclusive occupation and possession - instead it requires that discussions take place with the Crown on redress.

The Bill does not impose new access obligations on the owners of coastal properties - instead the Bill establishes access rights "in, on, over or across" the public foreshore and seabed, which is defined to exclude private titles.

The Bill does not establish a new avenue for legal aid - this will continue to be unavailable for group proceedings before any Court. The select committee may want to look further at the matter.

And the Bill does not in any way affect the jurisdiction of the Waitangi Tribunal or the process for resolving historic Treaty claims.

Mr Speaker, this Bill delivers four square on our promise to protect public access and clarify ownership. The Bill gives effect to the four principles we set out at the beginning of this exercise - access, regulation, protection and certainty. The Bill provides a clear and unified system for recognising and protecting rights in the foreshore and seabed. It creates a fair and reasonable framework for working through individual cases, in the context of a settled concept of Crown ownership on behalf of all New Zealanders.

We have made a number of changes since the proposals we released in December. We have considered the report of the Waitangi Tribunal on the December proposals.

While we do not accept the Tribunal's conclusions on a range of issues, we have made a number of changes that are consistent with the Tribunal's findings. The most significant of these is the retention of the right to make applications to the High Court.

The result is a much clearer, more familiar, more transparent and less bureaucratic framework which is well-balanced and will simultaneously guarantee access, recognise customary rights and interests, and manage effects on the environment. I acknowledge the contribution that many - both within this House and outside it - have made to these changes.

Mr Speaker, the Bill will not satisfy everyone. I doubt that is possible given the contentious and complex nature of the issues involved. But it does go a long way to addressing the concerns that have been raised. I hope that New Zealanders take the time to examine and discuss the Bill, and suggest to the Select Committee any aspects that might be improved.

I would hope, for example, the Select Committee will also find some way to encompass the existence of the concept of public domain in a form acceptable to both New Zealand First and United Future.

What is above all important for New Zealand's future is that we use the debate this issue has provoked to bring us closer together as a nation.

Mr Speaker, I commend the Bill to the House.


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