Sunday 20th June, 2010

Q+A’s Guyon Espiner interviews Treaty Negotiations Minister, Chris Finlayson

Points of interest:
- Ten percent of the foreshore and seabed is likely to end up in customary title
- Where? Upper east coast, up north and eastern Bay of Plenty.
- Maori with customary title will be still need to go through RMA: “no-one will be able to act independently of the RMA”
- Customary title gives ownership rights but regulatory power remains with councils
- Ngati Porou wrong to claim customary title could veto offshore drilling such as Petrobras deal
- Minister worries that deal with government could become political and an easier ride than going through the courts: we’ll “have to be very careful about transparency”

The interview has been transcribed below. The full length video interviews and panel discussions from this morning’s Q+A can also be seen on tvnz.co.nz at, http://tvnz.co.nz/q-and-a-news

Q+A is repeated on TVNZ 7 at 9.10pm on Sunday nights and 10.10am and 2.10pm on Mondays.

CHRIS FINLAYSON interviewed by GUYON ESPINER

GUYON Thank Minister for joining us, we really appreciate your time on the programme. Excluding the private titles, Foreshore and Seabed is currently in Crown ownership. You propose to move to a situation where no one owns the foreshore and seabed. How is that an improvement on the current situation?

CHRIS FINLAYSON – Treaty Negotiations Minister
Well it results in a good resolution of the issue. There were a number of options - Maori absolute ownership, which would never have flown – Crown absolute ownership, which is what we have now, which has caused the problem – Crown notional ownership which still causes concern – and the public domain concept, which as I understand almost was achieved in 2003, enables Maori then to go to court to seek orders relating to customary title. So it's the best situation to enable this matter to be resolved.

GUYON Well let's talk about customary title, because that is one of the major elements of this proposal. Now holders of customary title won't be able to sell that land and they must give public access. But other than that do you see it that this title provides for similar rights as a landowner would have?

CHRIS Yeah, ownership brings with it a bundle of rights, you’ve correctly identified the key components that distinguish it from say the title that you and I might have in a piece of land. But there are certain opportunities that go with it, the right to develop, the right to say no over development, if someone wanted to have a development in a particular area that was covered by customary title. So you've identified the key elements that distinguish it from ownership of a piece of land.

GUYON So it is true that no one owns the Foreshore and Seabed, but that is in a sense a staging post until an Iwi is given customary title, and then the Iwi owns that particular piece of Foreshore and Seabed.

CHRIS We're talking about customary ownership, which is quite different from the ownership which is held in a piece of land, and when I say it's different, I'm not saying it's inferior to, but it's recognising two key elements – one the fact that there is this general desire on the part of people to have access to the Foreshore and Seabed, and the second that was picked up as I went round the country meeting with people, an overwhelming desire on the part of Iwi that they don’t want to sell.

GUYON Let's look at one of those major awards that they would get, one of the benefits that they would get from customary title, and that is to veto any commercial or recreational development which requires a coastal permit. Now, so doesn’t that mean that the Iwi takes the place of a Regional Council in determining what can and what cannot happen on the coast?

CHRIS No, I think you’ve misstated the position. Let me give you an example. Iwi A has a piece of customary title in say a bay. A developer comes along and wants to build a hotel on the Foreshore and Seabed which has customary title on it. The customary title holder will have the right to say yes or no. If the Iwi itself wanted to develop a hotel then it would have to do so in accordance with the Resource Management Act, because no one is going to be able to act independently of the RMA.

GUYON Well that’s an interesting point, because in your discussion document that you released in March it says this. 'There would be no obligation on a coastal Hapu or Iwi to comply with the requirements of the Resource Management Act, when giving or declining permission for a coastal permit. The decision of the coastal Hapu or Iwi could be made according to a Maori world view, on grounds which are not covered by the Resource Management Act.'

CHRIS Yeah well I've said nothing that contradicts that at all. I'm talking about the ability of someone holding a customary title to say yes or not to development in that particular area.

GUYON Well which takes precedence?

CHRIS And that’s exactly the as – if I had a piece of land and you wanted to build a hotel on it, I'd be able to say yes or no.

GUYON Which takes precedence then Minister, the Iwi's right to veto, or the Resource Management Act?

CHRIS Everything we do and everything that is proposed, comes into the regime of the Resource Management Act. We're not setting up parallel or alternative processes here.

GUYON So an Iwi that wanted to develop a hotel would still need to have Resource Management Act approval for that?

CHRIS Or a wharf or some other kind of development, exactly right.

GUYON But could stop someone else from doing so, over and above what a Regional Council would have done. It's a new layer of authority isn't it?

CHRIS No, it's a property right, and if there is a customary title, and if I wanted to build a wharf or a hotel on an area covered by customary title, I'd have to get permission. That’s an incident of a property right.

GUYON Are there any constraints to this veto. I mean is it possible that a developer trying to do the sorts of projects that you’ve been giving examples of, would come seeking permission from an Iwi and then the Iwi could perhaps charge them as part of that. Could there be an exchange of money for this permission?

CHRIS Oh hypothetically that could well be the case

GUYON Have you got a problem with that?

CHRIS Well if someone has a property right and has the customary title, I don’t have a particular problem with that.

GUYON So that is something we're likely to see is it, that Iwi would charge and make money from those developers?

CHRIS It's never been raised with me. You’ve raised a hypothetical with me and I've answer it hypothetically. Practically I can't see too many instances of that, because I don’t think that’s what people are interested in.

GUYON Well former leader of the National Party, Don Brash, said there was a real conflict of interest if Maori were managers and regulators, and owners, that there's a conflict of interest there which he claimed would inevitably lead and invite corruption.

CHRIS Well we're not talking about Maori as regulators, we're talking about incidents of property ownership, and I'm developing this concept, this novel concept of customary title, and saying what the incidents of it are. But to conflate ownership rights with regulation is wrong.

GUYON But it is a regulation in any practical sense. If they have the right to stop someone developing, that is a regulatory right.

CHRIS No it's not, it's an ownership right.

GUYON But it still has the same practical effect. Right now you have to go to a Regional Council to get a coastal permit. You would now have to go to an Iwi to decide whether or not you were allowed that project.

CHRIS No, if you wanted to have a development you'd go to the person who holds the customary title, and you'd say can I build my wharf here, and they may say well no that is the site of an urupa, and for historical reasons we don’t want that to happen. If you came to me and said I want to build a hotel on your property, then I'd be entitled to say yes or not. It's an incident of ownership, it's not a regulatory thing, which still rests with the Regional Council.

GUYON These customary rights could potentially exist up to about 22 kilometres offshore

CHRIS Well theoretically although you'd have to satisfy exclusive use and occupation.

GUYON Ngati Porou believes that under the framework that you're proposing, they would have been able to stop a company like the Brazilian Petroleum Mining Company, Petrobras, from mining off the East Coast. I mean is it your belief that this new regime you're proposing would have given them that right?

CHRIS No, because I think that what we are looking at is a regime that has to fit in also with the Crown Minerals Act, and there's been an application for an exploration license, and if say they found something and they wanted to go for a particular mining license, then they'd have to fit in with the – I'm talking about Petrobras, would have to fit in with the Crown Minerals Act.

GUYON Yes which nationalises certain minerals including petroleum, but I'm talking about whether you allow them to do it or not. They seem to believe that that would give them the veto right that we've been talking about, and say no no, you're not allowed to mine for petroleum here. You don’t agree with that?

CHRIS I don’t agree with that.

GUYON Who enforces all this? I mean is that a question that you have resolved? Who enforces this? Who enforces whether things can or cannot happen in terms of customary right holders. I mean is there any enforcement regime here?

CHRIS Well what we're going to have is titles being issued under the new legislation, and as with titles issued under the Land Transfer Act, then you just leave it to the courts. Ultimately the courts will arbitrate if there's any dispute about who can do what and so on.

GUYON How widespread is customary title going to be? You said in parliament this week that – I quote you – 'I believe we're not talking about very much at all, at the end of the day I do not believe it is going to result in very much more of the Foreshore and Seabed being subject to customary title. New Zealand has something like 20,000 kilometres of coast line, how much is not very much at all?

CHRIS In the round I think, based on the sort of information I have, based on my talking around the place, I'd say about 10%, but I wouldn’t want to be specific and say that bay's in and that bay's out, because we're going to have to look at this issue of exclusive use and occupation, and the other tests that go to determine it. I wouldn’t want to fetter any government's negotiating position, or position in court, if I started to say well that bay's in. Any representation I make will be held against the government, or a future government.

GUYON So something like 2000 kilometres of coastline under your guesstimates would be under customary title?

CHRIS Yes, and that in the round guesstimate Guyon.

GUYON In what areas?

CHRIS I think that what we're looking at is the upper East Coast, eastern Bay of Plenty, way up North. The sorts of places Guyon where under the 2004 Act there've been negotiations already started.

GUYON To what extent if any, does having made a full and final Treaty settlement, affect your right to seek and be awarded customary title?

CHRIS There's nothing that we're going to do in any way shape or form that interferes with the finality of Treaty settlements already reached. But take this example. If Iwi A has settled with the Crown and there's settlement legislation, but they believe they have extant customary title in certain parts of their rohe, then they can come and talk to the government about that sort of thing. We're not going to pre-empt that, nor should we.

GUYON Just finally when you talk about coming and seeing the government, because there are two avenues for seeking customary title here, you can go through the High Court or you can go and speak directly to the Crown. I'm just wondering whether this creates an inconsistency, and I'll give you an example of perhaps where this could be politicised. If Ngapuhi came to you a few months before an election and you didn’t want to upset the tribe for some reason, would they get an easier ride potentially, than they would if they went through the High Court process?

GUYON Oh that’s a very good question, and I think that what we're doing is something where you're gonna have to be very careful about issues of transparency for precisely that sort of example, that some kind of special deal is done because of political circumstances, and that was an issue that was raised with me in public meetings around the country. Any government that does that absolutely undermines what we're trying to achieve here.

GUYON How are you mitigating that then Minister? How are you going to stop that and how are you going to stop that risk actually coming to fruition?

CHRIS Well I can't fetter the amoral acts of future governments. But what I can say is this, that any agreement is going to be subject to Cabinet approval, and also the Select Committee process, and in certain circumstances it won't be possible to achieve deals through negotiation, and then there's the court process. So I think there's enough there to ensure that the important issue of transparency is honoured, but it's a very important point that you’ve raised.

GUYON Good place to leave it, thanks very much for joining us this morning Chris Finlayson, we appreciate your time.

ENDS

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