Cullen: Human Rights & the Foreshore and Seabed
Michael Cullen on why the foreshore and seabed legislation complies with the Bill of Rights.
1 June 2004
Speech Notes Embargoed until: 12.15pm Tuesday 1 June 2004
Human Rights Commission Speakers Forum: Human Rights and the Foreshore and SeabedNational Archives Building, 10 Mulgrave Street, Wellington
I have been asked to speak on the human rights aspects of the foreshore and seabed debate, and to get us off to a good start I would like to begin by challenging a common assumption about human rights protections in New Zealand. If I were to ask you to name the primary body that protects the human rights of New Zealanders, there are many who would immediately answer: the Human Rights Commission, or perhaps the Courts.
Without any disrespect to either of these institutions, I have to say that this belief is wrong. The primary body which protects human rights in this country is in fact the New Zealand Parliament.
This would not have seemed a contentious point to the early constitutional reformers who first developed the concepts of human rights we use today and who established the underlying principles of democratic government and the rule of law. Their campaign was to wrest executive and legislative power from the unelected officials of hereditary monarchs and aristocrats - who regularly abused human rights with impunity - and to place that power in the hands of an elected and therefore publicly accountable parliament.
Sadly, there is now in New Zealand a widely held view that Parliament is an institution in the grip of brute majoritarian forces, and that the best hope for protection of human rights is to be found with appointed judges and other judicial officers who sit in calm elevation beyond the reach of any vested interest.
This is myth, and probably dangerous myth at that. Parliament represents the collective will of the people. Indeed looking at the make-up of the House one could hardly find an institution more representative. Whenever it considers legislation Parliament is, among other things, determining who shall have what rights, and the constant imperative is to reflect the best interests of all members of the public in those decisions. Human rights issues, at their messiest, are one of the staples of parliamentary life.
The role of judicial officers is to interpret the law in individual cases; in other words to give effect to the will of Parliament. It is Parliament's job to pass the law and to amend it when it fails to reflect the will of the people.
Whenever judicial officers stray towards making the law we run into trouble, not because their views are wrong - indeed they are often in the best possible position to comment on the efficacy of particular laws - but because they are unelected officials and have no democratic mandate. Any perception that judges are pursuing a political agenda is injurious to the public good. Once judges are perceived as advocates we lose an essential element of our democracy.
So the Parliament is currently considering the Foreshore and Seabed Bill. It is a Bill expressly about the balancing of rights that potentially compete:
The right of New Zealanders to continue long-established customary practices relating to portions of the public foreshore and seabed;
And the right of New Zealanders to access to public foreshore and seabed for recreational purposes, and, under appropriate regulatory controls, for commercial purposes.
The Bill is the product of extensive consultation, and it is an attempt to find the best solution to a tension for which is there is no perfect answer. Those at either extreme will not be satisfied, and clearly this piece of legislation - both in its passage and its implementation - will continue to attract robust debate and will challenge our maturity as a nation.
So what does the Bill do?
The Bill provides general rights of public access in, on, over and across the public foreshore and seabed and general rights of navigation. These are general rights that all New Zealanders whatever creed or colour they may be consider that they should be able to enjoy. The Bill does not though' provide a right of access to the public foreshore and seabed - that is being dealt with elsewhere in the Land Access review that the Ministry of Agriculture and Forestry have underway.
It establishes a framework to protect traditional Maori rights and prevent further private ownership of the foreshore and seabed.
It ensures that traditional Mâori rights and interests in the foreshore and seabed are acknowledged and protected. It upholds the mana of Mâori and tikanga Mâori, and recognises 'te kaitiakitanga o Tangaroa' - the guardianship of the sea and its resources - as an intrinsic part of what it is to be Mâori, and as a key consideration in the sustainable management of the sea and all its resources.
The Bill recognises and protects a range of rights that will assist Mâori to participate more effectively in the Resource Management Act processes and planning that govern decision-making in the whole marine environment. It also formally recognises Maori ancestral connections - based on tikanga and tupuna connection - so that in the future those who manage the marine area, and people who want to do things in the marine area, won't be able to say that they didn't consult with Mâori because they didn't know who to talk to.
It recognises customary rights in a way in which they have not been recognised before, and in particular in ways not capable of recognition under the Te Ture Whenua Maori Act. Customary rights will become property rights that will be enforceable at law, and will be recognised as matters of national importance. Once recognised by the Courts, customary rights holders will be able to exercise their customary right without obtaining resource consent. The Government or local councils will not be able to interfere with Maori exercising these rights, unless the exercise of those rights would create significant harm to the environment.
Once Maori (or any other New Zealander with a longstanding connection to an area of foreshore and seabed) have established their customary rights others will no longer be able to lawfully interfere with the exercise of that right. In practical terms this means that people will not be able to set up a mussel farm or a marina over areas where Mâori have established their customary rights.
The quid pro quo of course is that the Bill provides that no individual or group can obtain a fee simple title to the foreshore and seabed. Full ownership of the Foreshore and Seabed is to be vested in the Crown, to ensure that it is preserved and protected for the use and enjoyment of all Maori and non-Maori.
For those who consider that, but for the vesting of Crown ownership, they would have held rights under common law equating to exclusive occupation and possession of an area of the public foreshore and seabed, the Bill provides a for the High Court to consider the evidence and to make such a finding. That finding would be followed by discussions between the group and the Crown on redress.
There are a number of specific human rights questions that have been raised about the Bill and the policy process around it, and I would like to address those. They focus on whether the Foreshore and Seabed Bill is inconsistent with the Bill of Rights Act.
The Attorney-General, Hon Margaret Wilson, has released a detailed analysis of the Bill and its consistency with the Bill of Rights Act. This is available on the Ministry of Justice website for anyone who wants to read it; but its major points are worth repeating.
There are four potential ways in which the Bill might be argued to conflict with the Bill of Rights Act:
Depriving litigants of the fruits of litigation;
Unreasonable search and seizure;
Deprivation of the right to enjoy minority culture; and
Discrimination on the grounds of race.
I will begin with the question of depriving litigants of the fruits of litigation. Section 27(3) of the BORA guarantees New Zealanders the right to bring civil proceedings against the Crown, and declares that in such proceedings the Crown shall have no procedural advantage. In essence, the Crown becomes an ordinary person for the purposes of those proceedings.
It is argued by some that this principle extends to a prohibition on legislation which reverses the effects of judgements of the Court. Hence, in this instance, the government should not intervene to prevent cases concerning ownership of portions of the public foreshore and seabed from being taken to the Maori Land Court, as the Court of Appeal said they could.
That argument does not hold water. The interplay between Parliament and the Courts is an essential part of our system of law-making. Clearly Parliament should not pass laws which interfere with cases before the Court in which it is a party; but where the Courts deliver a judgement that uncovers a weakness or ambiguity in the law, we would expect Parliament to rectify that by legislation.
This is all the more the case when, as with the Court of Appeal's decision last year, that judgement interprets the statute in a manner clearly not intended by Parliament when it passed the law. This is a point on which the Waitangi Tribunal's report on the issue was disappointing.
Throughout their report the Tribunal seemed to assume that a clear statement of statute law - such as vesting of the title to public foreshore and seabed in the Crown as is currently the case - can in effect be ignored. If Parliament changes the law, as the Bill will do by removing the possibility of customary land status over the foreshore and seabed, it cannot be accused of somehow breaking the law itself.
Parliament cannot be accused of interfering with due process by passing legislation. Passing legislation is due process. The essence of our democracy is the assertion of the will of the people as expressed through Parliament.
Does the Bill, secondly, amount to seizure of property rights? The answer again is no.
If a claimant could, as a matter of fact, establish a customary interest that required exclusive right of possession or occupancy, then the Bill would have the effect of removing that property right. Some would argue that amounts to "seizure" under s. 21 of the Bill of Rights Act and would have to be accompanied by compensation in order to be judged reasonable. However that is not the Crown's view.
The fact is that no such property right was conferred by the Court of Appeal's decision, and it was certainly not a feature of Te Ture Whenua Act 1993. The Court in fact expressed significant scepticism as to whether fee simple title could actually be granted, commenting that if such cases did exist they were likely to be very rare and relate to very discrete parcels of land. But they found that there was nothing in the law to prevent claimants taking a case forward.
Indeed it is misleading to argue that the Bill extinguishes customary rights when one of its express purposes is to place such rights on a more secure legislative footing. The existence and importance of customary rights has never been in question, at least so far as the government is concerned. (It has been a question that the National Party has raised, apparently arguing that Parliament should simply legislate customary rights out of existence.)
The question has always been what form should those rights take in law. Customary interests are currently recognised in the Resource Management Act, and they are an important element in many planning consent processes. They are more explicitly recognised in this Bill, and a number of provisions spell out how such interests will impact upon decisions regarding the foreshore and seabed.
The Court of Appeal's decision raised the remote prospect that customary rights might be crystallized as exclusive ownership. What the Bill does is close off that option for the reason that it would cut across the rights of the rest of the community - Maori and non-Maori - and create protracted confusion over any use of the foreshore and seabed. In return it provides for customary rights to be formally recognised and protected; and furthermore creates an avenue through the Courts whereby all New Zealanders who believe their customary rights are sufficient to justify exclusive title can seek a finding to that effect and enter into discussions with the Crown on the nature and extent of redress. So the perception that the Bill prevents New Zealanders, and in particular Maori, from 'having their day in Court' is in fact quite wrong. What it does is limit one of the remedies that the Maori Land Court under Te Ture Whenua might otherwise have awarded.
The third point on which the human rights implications of the Bill has been challenged is the deprivation of the right to enjoy minority culture, which is protected under s. 20 of the Bill of Rights Act. However, for this to be proved it would need to be clear that the cultural practices concerned required exclusive title over the seabed and foreshore, and could not be undertaken without it.
That is hard to argue. In all the representations to government or to the Waitangi Tribunal there was not, to my knowledge, any customary right or cultural practice that required fee simple title. The Bill if anything strengthens the capacity of Maori to promote and protect their customary interests in the foreshore and seabed. Certainly one can argue that fee simple title would provide an even stronger protection under law; but it would be superfluous for Maori, and injurious to the rights of the rest of the community, and for that reason we want to exclude it.
A fourth concern under the Bill of Rights Act is that, because the impact of the Bill is concentrated on Maori New Zealanders, it might constitute discrimination on the grounds of race. What the Attorney General has conceded is that to the extent that the Bill treats the holders of 'specified freehold interests' (where private ownership is held by both Mâori and non-Mâori) and the undefined, uncertain rights of possible Maori customary landowners differently (in that the formers' rights are preserved while the latters' are extinguished) there may be a prima facie breach of the Bill of Rights Act. It is by no means unequivocally a breach, and there are strong arguments to suggest that this aspect of the Bill does not in fact discriminate on the basis of race.
There is an argument that if a claim equivalent to a fee simple title is made out in the High Court there should be a guarantee of redress, rather than a commitment by the Crown to enter into negotiations, and that a body independent of government should determine the nature and extent of the redress.
That argument rests upon an assumption that the Crown will not negotiate in good faith. This simply cannot be assumed. Section 19 of the Bill of Rights Act and the Treaty of Waitangi require a good faith approach to negotiations, which means the offers must be appropriate and sufficient. It is also important to realize that even the strongest form of common law Maori customary interest in the foreshore and seabed would be inalienable, and likely to be subject to public rights of access and use. Such an interest cannot readily be valued in financial terms, and monetary compensation may not be the best form of redress.
This means an analogy cannot be drawn with, for example, compensation regimes for land taken for public works. There is no objective basis on which an independent third party can fix redress. It is an issue best determined in the particular case by discussion and negotiation. It is worth noting in this context there is no statutory requirement for the government to negotiate historical land grievances under the Treaty of Waitangi Act, yet governments on all sides of the political spectrum have honoured the commitment to negotiate. In relation to Treaty breaches, the Crown has shown itself willing to consider many different forms of redress. It is not sensible to limit that flexibility, as would inevitably happen if the government were to cede ultimate decision-making power to some other body.
The issue then is whether, supposing one accepted a prima facie breach, such a breach is in the terms of section 5 of the Bill of Rights Act, "demonstrably justifiable in a free and democratic society". That suggests that we should balance up what the Bill gives with what it takes away.
What the Bill gives is certainty, and that certainty is in fact a very valuable commodity. The principal reason for introducing the Bill is to clarify the law for both Maori and non-Maori alike.
To quote from the Attorney General's report:
"The state of the law on this subject may best be described as radically indeterminate. The Ngati Apa decision created significant uncertainty with regard to the common law status of customary interests in the foreshore and seabed in New Zealand; the range of customary interests that could be recognized; the viability of existing legislative regimes such as the Resource Management Act; and the nature and extent of public rights in relation to New Zealand's foreshore and seabed." "The common law of customary interests has been little developed to date in New Zealand because Maori have chosen to obtain redress through the Treaty of Waitangi. Without legislation the Courts would be required to develop the common law of indigenous rights on a case-by-case basis over many years. This jurisprudence would be developed through both the High Court and the Maori Land Court, thus creating the real possibility of conflicting and confusing approaches and decisions. As a result there would be substantial uncertainty as to the legal status of New Zealand's coastline for many years, and governments have the obligation to provide certainty in the law wherever possible."
Certainty is essential to the operation of the Resource Management Act which currently operates on the basis of Crown ownership of the foreshore and seabed, based to some extent on the earlier Court of Appeal decision in the Ninety Mile Beach case. Already we are starting to see cases that jeopardise the operation of the RMA. For example, Ngati Manuhiri o Omaha hapu has sought an injunction to prevent the issuing of any new resources consents for sand extraction in the Kaipara Harbour. The basis for the action is that the hapu owns the relevant area. Similarly, Ngati Toa has taken judicial review proceedings designed to prevent the establishment of a marine reserve at Taputeranga off Wellington's South Coast. The basis of their claim is also ownership of the relevant area.
It is impossible for the Crown and local authorities to perform their regulatory functions in the face of such ownership claims. It is clear there will be many more such claims, and without legislative intervention these will take many years to be heard and resolved. We do not see any benefit in allowing regulatory decision-making to be stalled. In addition to certainty for planning, Bill ensures the interests of Maori common law customary interests and rights are protected:
It gives effect to Maori common law customary interests in the foreshore and seabed, through the Ancestral Connection Orders and the Customary Rights Orders; It provides for an action to be taken in the High Court for a claim to a bundle of rights equivalent to a fee simple title. That finding can then be referred to the government for redress; It provides through the Ancestral Connection Orders and Customary Rights Orders an improvement on any other mechanisms currently available for ensuring Maori interests are reflected in any planning processes affecting the foreshore and seabed.
What many contributors to the current debate do not seem to have appreciated is that these common law customary interests and rights would not have been well served under the Te Ture Whenua Maori Act. That Act is a blunt and therefore inferior instrument for addressing the issues relating to rights to the public foreshore and seabed.
Indeed many of the common law rights and interests enshrined in the Foreshore and Seabed Bill would have dropped from view under a regime where the aspirations of Maori for protection of customary interests rested entirely upon the granting of fee simple title by the Maori Land Court. It was a precarious basis for protecting customary rights, and what we are providing in the current Bill is a very significant improvement.
In view of the very real benefits and very real protections that the Bill offers, the government's assessment is that, on balance, to the extent that it may involve a prima facie infringement of section 19, it is a reasonable limit in terms of section 5 of the Bill of Rights Act. If a bird in the hand is worth more than two in the bush, it is most certainly worth more than a mythical bird whose existence is very much in doubt.
I do not imagine that this will be the end of the matter. The Bill will attract robust debate as it passes through the Select Committee and returns to the House. I welcome this debate. If there are ways of improving the Bill we should attempt to find those out.
Undoubtedly some people in the human rights community may be disappointed that the issue is being resolved within a political rather than a judicial framework. Contrary to what has been alleged, human rights considerations have been taken into account in drafting the Bill, and they will continue to be important to the debate in Parliament. The process we have been through fulfils all of our international human rights obligations.
Of course Parliament does not have the luxury of restricting its mandate to one perspective. The law has to be workable, and that means balancing a number of relevant principles, rather than standing on one.