Cullen Speech: to Dairy Workers Union Congress
Michael Cullen Speech: to Dairy Workers Union Congress Kingsgate Hotel, Fenton Street, Rotorua
It was with considerable relief that I recently introduced the Foreshore and Seabed Bill and saw it through its first stages in Parliament. The Bill is now before select committee and I hope that there will now be an opportunity for the opposing sides to cool off and for the Bill to be studied closely and its merits and tradeoffs understood.
It is important to acknowledge the depth of passion that the foreshore and seabed issue has inspired. It is an issue that touches upon deep sources of Maori identity, and for many Maori it taps into the concerns and emotions of an ongoing drive for economic and cultural self-determination.
But public ownership of the foreshore and seabed is also deeply embedded with the non-Maori sense of identity. I believe it is important that we put passion aside after a while and consider the Bill as an attempt to balance conflicting rights and to find a way forward.
To do that we need to explode a few myths (notably some myths around what the Court of Appeal actually said) and we need to examine the detailed provisions of the Bill and ask whether it achieves its goals of open access to and use of the foreshore and seabed for all New Zealanders; regulation of the use of the foreshore and seabed by the Crown on behalf of all future generations of New Zealanders; acknowledgement of the customary interests of whanau, hapu and iwi, and the protection of specific rights where these are identified; and certainty for those who use and administer the foreshore and seabed.
First, the myths; and I have to say that I believe New Zealanders have been rather poorly served by our media in their coverage of the issue.
Broadcasters are required to be truthful and accurate on points of fact, and significant errors of fact should be corrected at the earliest opportunity. They are also required to maintain standards consistent with balance and fairness. In particular, programmes are required to observe the principle that ‘when controversial issues of public importance are discussed, reasonable efforts are made, or reasonable opportunities are given, to present significant points of view either in the same programme or in other programmes within the period of current interest’.
In early May TV3 ran a segment on their 20/20 programme on the Foreshore and Seabed Bill that was not balanced, fair nor accurate. The programme contained a number of completely erroneous statements, including statements that "The Court of Appeal … said … Marlborough iwi did indeed have ownership by way of native title", that “Much of New Zealand’s foreshore and seabed except that in private ownership was theirs [Maori] by right of Maori title”, and that “the Foreshore and Seabed Bill … proposes to take the bulk of existing native title off Maori and put it into Crown ownership".
None of these statements are true. What the court actually found was much more limited.
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 tentative wording of the court’s judgement perhaps illustrates a realisation on their part that although on balance the law does allow claims regarding the seabed and foreshore to be heard by the Maori Land Court (a view which the government clearly does not share) the Maori Land Court is not the appropriate forum for addressing the need to protect Maori customary rights.
Indeed, the decision created a quandary for the government. To allow claims regarding the seabed and foreshore to be heard by the Maori Land Court would have serious repercussions. The Maori Land Court operates under 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 short of fee simple title.
In other words, the Maori Land Court would be applying law that did not take account of the special characteristics of the seabed and foreshore, or of the nature of customary rights. Instead its empowering Act means it would be able to make only one kind of determination: full and exclusive title.
This was not what Parliament intended when it passed the Te Ture Whenua Maori Act 1993. The Act is clearly ill-fitted to address the status of the seabed and foreshore, and ill-fitted to deal with more subtle kinds of property rights.
It is important to understand that customary rights are not Treaty rights as such. They are rights which derive from the common law; that is, from the mainstream tradition of English jurisprudence. Customary rights are attested to by both New Zealand and overseas courts. Such rights are established by long practice; by a continuous relationship between a community and a specific area of foreshore and seabed. 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.
Although they do not involve ‘ownership’ as such, customary rights are property rights nevertheless. 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.
As you can see, the challenge for the government lies in finding a solution which recognises the legitimate rights and expectations of all New Zealanders. Clearly, some give and take is called for by all of us, Maori and non-Maori.
There are those who argue that we should simply leave the matter to resolve itself gradually through the courts with decisions one way or another, followed by appeals and so forth. The end point of that process would, they believe, be a clear decision either that Maori cannot claim title to portions of the seabed and foreshore, or that they can, in which case the Crown would have to enter into negotiations to restore access on behalf of New Zealanders in general.
Sadly, this is the view taken by the Waitangi Tribunal. They argued that if these proceedings should continue to the granting of freehold title to what could be substantial areas of foreshore and seabed, then the government could legislate to take that title away, in return for compensation. I would suggest that that is quite objectionable in terms of interfering with due legal process. It is quite unconscionable that a government would allow the expense and delay of the court process, knowing throughout that it intended to legislate away any gains that Maori might secure.
For that reason we do not believe the Tribunal’s proposal is a viable option. We are not confident that the outcome would be as clear cut as they suggest; and we do not think allowing matters to drift on, perhaps for many years, is in the interests of any New Zealanders. Already there is a serious risk of injunctions to prevent any seabed and foreshore activity from happening. We cannot allow our entire coast to be locked up, and an effective moratorium placed on key industries such as aquaculture, pending a long and uncertain series of cases and appeals.
To allow this to happen would be irresponsible for any government. That is why our decision was 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.
Non-Maori New Zealanders need not fear a wholesale limitation on their rights of access to their favourite portions of the coast. 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.
This leads us back to 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 has 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 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.
Standing back from the detail of the Bill, what it attempts to do is to give certainty, by clarifying the law for both Maori and non-Maori alike. It provides certainty for local authorities in planning decisions, and certainty for Maori in how their common law customary interests and rights will be protected. Already we are starting to see cases that jeopardise the operation of the Resource Management Act.
The Bill ensures that no further ownership of the foreshore and seabed will be permitted; and in return provides much clearer rights for Maori than the Te Ture Whenua Act ever did in relation to the seabed and foreshore:
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.
Of course it is a matter of opinion whether you believe this trade-off to be a fair one. The government’s assessment is that it is fair, and I would venture to suggest that that is a view held by most New Zealanders, Maori and non-Maori. Indeed, a recent Marae Digipoll surveyed Maori voters and asked whether they agreed that under the government ‘s plan Maori customary rights to the foreshore would be protected. Seventy-nine per cent agreed, 14 per cent disagreed, and 7 per cent were undecided.
If that poll proves to be representative then I am confident that the Foreshore and Seabed Bill will gain widespread acceptance as a fair and reasonable middle ground, an equilibrium where the expectations of all can be accommodated.