Gordon Campbell | Parliament TV | Parliament Today | Video | Questions Of the Day | Search


Foreshore And Seabed - The Debate Continues

Foreshore And Seabed - The Debate Continues...

Address to public meeting on seabed and foreshore, Thames War Memorial Hall, Thames, Wednesday 22 October 2003, 8.00 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 and extending to the limits of New Zealand's territorial sea as defined in the Te Turi Whenua Maori Act 1993.

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

The original Maori Land Court decision of Judge Hingston in 1998 was appealed by the Crown and the High Court decision of Justice Ellis in 2001 rejected the Maori claim and found in favour of the Crown in all eight questions. The Marlborough iwi then took their case to the Court of Appeal which overturned the High Court decision.

We must first be clear what foreshore and seabed is. The foreshore is those inter-tidal lands between mean high water spring and mean low water spring tides. The seabed is the land permanently covered by sea stretching from the foreshore to the 12 nautical mile 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.

Any feeling of relief was short lived. The government buckled to political pressure from Maori, rapidly abandoning its initial assertion of Crown ownership and floating a nebulous concept of "Public Domain" owned by no one. This creates a political, social and economic vacuum. Nature and politics hates a vacuum.

Following the initial impasse some extreme Maori, including cabinet minister Tariana Turia have asserted absolute and exclusive Maori title over the foreshore and seabed with a promise to share with non-Maori. 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 to this land.

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 itself. After all, if the Crown does not own the foreshore and seabed on behalf of us all and Maori do have exclusive and extensive title as some claim, then the concept of public access to the commons is out the window because it is no longer "commons".

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 the two months following the Appeal Court decision the Government engaged in a series of consultative Hui with Maori, several of which had to be abandoned, but all resulted in an absolute rejection of the Government's proposals.

In examining this issue ACT has been guided by two broad principles.

The sanctity of property rights

One law for all - common rights and responsibilities of all citizens before the law - in other words, 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 clear and simple.

ARTICLE ONE establishes sovereignty over New Zealand in the name of the British 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 invented by the judiciary in the 1980's and seized upon by the Treaty 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 on the 6^th February 1840, from that day forward sovereignty lay with the Crown and all citizens enjoyed equal rights. The Crown is we 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 "He iwi tahi tatou - Now we are all one people".'

The foreshore and seabed debate is an inevitable result of the partnership concept. The Hauraki Declaration emanating from the National Maori Hui in Paeroa on the 12^th July was effectively an assertion of Maori sovereignty and the Government kowtows in fear of upsetting the "Treaty Partner".

The court did not find that there was any customary title to the foreshore and seabed, only that it was possible that customary title does exist in some instances. All citizens must have the right to go to court seeking determination of property rights disputes.

There is an issue of our Court structure that worries me deeply. The Waitangi Tribunal is not a Court and only has the powers of recommendation. All of the Judges on the Maori Land Court are members of the Waitangi Tribunal and the

Chief Judge of the Maori Land Court, Joe Williams, is the acting Chairman of the Waitangi Tribunal. The Maori Land Court was established with the prime purpose of adjudicating the extent of customary land title held by various Maori groups and where appropriate converting that customary title to fee-simple freehold title under our much acclaimed Torrens system of land registration and transfer.

In making those determinations non-sworn testimony is often accepted without cross-examination or challenge. We have had a recent history of judicial activism on Treaty matters and the Maori Land Court is demonstrably aligned. It is therefore not the appropriate judicial body to determine the validity of any customary title that may exist over the foreshore and seabed.

In addition the Te Turi Whenua Maori Act 1993 is defective because it wrongly equates non-exclusive use rights with property ownership and title.


ACT has a very simple, clear and principled policy on the foreshore and seabed issue:

1. The Crown must assert sovereignty holding powers to regulate activities and use when necessary.

2. Property rights are important.

(a) To the extent that some limited customary use rights may still exist then those claiming such rights must, as necessary, be able to test those rights in Court and resolve disputes.

(b) All users of the foreshore and seabed need clear and transferable property rights particularly those associated with activities such as aquaculture, prospecting, mining and marinas. Parliament, not the Courts, must determine the type and extent of such property rights.

(c) Where any established property right is appropriated by the Government in the public interest then compensation must be paid.

3. No law should confer privilege or prejudice on the basis of race - one law for all.

© Scoop Media

Parliament Headlines | Politics Headlines | Regional Headlines

Gordon Campbell: On What Triggered The Carnage In Gaza

At last count, 195 Palestinians have reportedly died in the latest round of violence, 55 of them children. Roughly ten times that number have been wounded, and thousands made homeless. On the Israeli side, 8 people have died from rockets fired from Gaza. The imbalance in casualties reflects the vast gap in weaponry between the two sides. The Israelis are carrying out air strikes with impunity on densely populated civilian neighbourhoods... More>>


Budget 2021: Boosts Carbon Neutral Government Commitment

· Budget 2021 delivers $67.4 million to support the transition to a carbon neutral public sector by 2025 · State Sector Decarbonisation Fund receives significant boost to support more schools, hospitals and other government organisations to replace ... More>>

Government: To Rev Up Reductions In Transport Emissions

The Government is calling for feedback on a range of potential policies to eliminate emissions in the transport sector. Transport Minister Michael Wood today released Hīkina te Kohupara – Kia mauri ora ai te iwi - Transport Emissions: Pathways to ... More>>

KiwiSaver: Default Provider Scheme Improvements Slash Fees, Boosts Savings

Hundreds of thousands of New Zealanders will be significantly better off in retirement following changes to the default KiwiSaver scheme, Finance Minister Grant Robertson and Commerce and Consumer Affairs Minister David Clark said today. More>>


Child Poverty: Reports Highlight Need For Ongoing Action

The Government has released the first Annual Report for the Child and Youth Wellbeing Strategy and the second Child Poverty Related Indicators (CPRI) Report, both of which highlight improvements in the lives of children as a result of actions of the Government, ... More>>


PM: Statement On The Speaker And Annual Review Debate

“The serious issue of alleged sexual assault and harassment at Parliament was poorly managed and inappropriately politicised last night. The tone of the debate did not reflect well on Parliament as a whole,” Prime Minister Jacinda Ardern said. ... More>>

Parliament: Mallard Fails To Give Taxpayers A Straight Answer

Trevor Mallard has confirmed he is unfit to be Parliament’s Speaker by failing to answer several important questions relating to the false rape accusation saga that cost taxpayers more than $330,000, Shadow Leader of the House Chris Bishop says. ... More>>

Local Government: Independent Review To Explore Future

Local Government Minister Nanaia Mahuta says an independent review of local government will explore how councils can maintain and improve the wellbeing of New Zealanders in the communities they serve long into the future. More>>





InfoPages News Channels