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Everyone Must Be Heard On Foreshore

Everyone Must Be Heard On Foreshore

Address to public meeting on seabed and foreshore Bureta Park Motor Inn, Tauranga Monday 08 September 2003, 7.00 pm

Good Evening and Welcome.

On the 19^th of June this year the New Zealand Court of Appeal released the long awaited decision declaring that Iwi in the Marlborough Sounds are entitled to go to the Maori Land Court with their claim for customary title over areas of foreshore and seabed in the Marlborough Sounds.

Prior to this decision the Crown believed that Iwi were not so entitled.

We must first be clear what foreshore and seabed is. The foreshore is those tidal lands between mean high water spring and mean low water neap tides. The seabed is the land permanently covered by sea stretching from the foreshore to the 12 kilometre outer limits of New Zealand's territorial seas.

This underlying assumption of Crown ownership was based on existing legislation and previous court rulings such as:

· 1878 - HARBOURS ACT. Parliament legislated to divest Maori Land Court of jurisdiction to investigate title below high water mark.

· 1894 - NATIVE LAND ACT. Parliament legislated so that investigation of title of customary land automatically results in the conversion of customary ownership into freehold Maori land.

· 1950 - HARBOURS ACT. Upheld position established in 1872.

· 1963 - THE COURT OF APPEAL in the 90 Mile Beach Case held that there was no remaining entitlement to a further investigation of title to the foreshore.

· 1965 - TERRITORIAL SEA AND FISHING ZONE ACT. Deems the foreshore and seabed to be, and to have always been, vested in the Crown. (Grants made before and after the Act are specifically preserved.)

· 1977 - EXCLUSIVE ECONOMIC ZONE ACT. Reiterated assumption of Crown ownership of foreshore and seabed.

· 1991 - FORESHORE AND SEABED ENDOWMENT REVESTING ACT. A similar assertion of Crown ownership.

On Monday 23 June 2003, two working days after the Court of Appeal decision, the Prime Minister Helen Clark and Attorney General Margaret Wilson both publicly asserted that the foreshore and seabed is indeed owned by the Crown and if necessary the government would legislate to remove doubt.

The country sighed with relief. That mood was a reflection of the relief felt when a month earlier, the Prime Minister asserted Crown ownership over oil and gas reserves based on the 1937 legislation, following a recommendation of the Waitangi Tribunal that Maori had a legitimate claim.

The country's relief was short lived. The government buckled to political pressure from Maori interests and rapidly abandoned its initial assertion of Crown ownership. Principle went out the window when faced with political survival.

What followed was several weeks of impasse with some extreme Maori, including cabinet minister Tariana Turia asserting absolute and exclusive Maori title over the foreshore and seabed. Some even went so far as to declare Maori sovereignty over the seabed stretching to the ancestral lands of Hawaiki. If nothing else, that claim confirmed that like all New Zealanders, Maori too are immigrants.

During this period the government attempted to obfuscate the issues and in particular conveniently seized upon the report of the Land Access Ministerial Reference Group chaired by John Acland.

This report proposes the affirmation of the Queen's Chain to ensure access to our beaches and waterways. The issue surrounding access through and over private property are however quite distinct from ownership of the foreshore and seabed. After all, if the Crown does not own the foreshore and seabed on behalf of us all and Maori do have exclusive title as some assert, then there is little point in ensuring public access.

In other words the very concept of the Queen's Chain as a 20 metre esplanade reserve above the foreshore implies that the inter tidal foreshore and coastal waters beyond are vested in the Crown for the enjoyment of us all.

In examining this issue the Act party has been guided by two principles.

· The sanctity of property rights

· One law for all - common rights and responsibilities of all citizens before the law - one class of citizenship.

Most New Zealanders are weary and increasingly intolerant of the self perpetuating Treaty of Waitangi grievance industry. We should however not blame the treaty but rather the politicians and judges who have spent the last two decades redefining it.

The three articles of the Treaty of Waitangi are delightfully clear and simple.

· ARTICLE ONE establishes sovereignty over New Zealand in the name of the Crown with the various signatory tribal chiefs accepting that sovereignty.

· ARTICLE TWO is all about the establishment, maintenance and protection of property rights. It must be remembered that under tribal chieftainship property rights were not well defined or secure. They were frequently seized in battle with the vanquished being enslaved or even eaten.

· ARTICLE THREE promises the natives of New Zealand and their descendants equal rights and responsibilities before the law as British subjects.

I will proudly defend those broad principles in any forum and uphold the Treaty of Waitangi as our nation's founding document. Regrettably we have allowed those principles to be twisted and reinterpreted by activists with a determined agenda.

The concept of "treaty partnership" was invested by the judiciary in the 1980's and seized upon by the activists. It is a fundamentally flawed concept as are the government's ill conceived treaty principles based on the notion of protection, partnership and participation.

While various parties came together in 1840, from that day forward sovereignty lay with the Crown and all citizens enjoyed equal rights. The Crown is us and we are the Crown through our democratically elected parliament. How can you possibly be in partnership with yourself. It was no accident that Governor Hobson said in Maori to each chief as they signed the treaty "we are all now one people."

The foreshore and seabed debate is inevitably the result of partnership concept wherein somehow Maori have a right to exercise separate sovereignty and the Crown now kowtows, refusing to assert Crown ownership in fear of upsetting the treaty partner. We are now faced with the ludicrous situation where government has declared that no one owns the foreshore and seabed and it is now their intention to legislate for non ownership. This creates a political, social, economic and legal vacuum. Nature and politics hate a vacuum.

As you would expect, the ACT party has a very clear and principled solution. The court did not find that there was any customary title to the foreshore and seabed, only that it was possible and that citizens have the right to go to court to establish property rights. We support that view. All government needs to do is:

· Announce that it is government policy that all citizens enjoy in the future all rights that they were believed to have prior to the Court of Appeal case.

· Allow those who claim ownership rights to go to court to establish them if they can. The Crown should strongly oppose such claims - few if any will be found.

· The Crown should proceed with marine farming on the basis the Crown has title.

· Should any customary ownership be found, the Crown should acquire, if necessary by compulsory purchase, that title at a fair price.

Initially the government has stated that the transfer of ownership of Lake Taupo's foreshore and lakebed to Tuwharatoa in 1992 was a model of success. Nothing could be further from the truth. Under that transfer of ownership unrestricted public access for all recreational pursuits and research were assured at no fee. Regrettably fishermen are increasingly being harragued, abused and assaulted by young Maori who claim `they own the lake'. Similarly the research work of the Institute of Geological Survey and Nuclear Science was obstructed with the mini submarine Jago sitting in its packing crate on the wharf for several months at huge expense and finally leaving without undertaking the scientific research because of opposition from Tuwharatoa.

Margaret Wilson, representing this government is at the point of transferring ownership of the lakebed and foreshores of fourteen Rotorua lakes to Te Arawa. In 1922 there was an act of parliament vesting in the Crown with an annual compensatory payment to Te Arawa. The government cannot explain the difference between the foreshore and lakebeds and the coastal foreshore and seabeds.

A similar situation exists here in Tauranga. The government has been negotiating with the local council to transfer the ownership of Mauao (Mt Maunganui) to the three local Iwi. This iconic landscape, which is special to us all, has been vested in the council as a reserve. The council is a democratically elected body that should represent the interests of all citizens. I fail to see why any individual should have a special claim based on the date when one of his or her ancestors arrived here.

The labour government has embarked on a series of taxpayer funded hui around the country to consult with Maori. They are holding these in the middle of the day at remote fishing villages at times when most of you are out working for your living. It is for this reason that I have called the meeting tonight here in Tauranga so that we could discuss these matters and I could hear the views of rank and file New Zealanders, who like me, care passionately about their country and its future.

© Scoop Media

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