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Enduring foreshore and seabed solution needed

Phil Goff

Leader of the Labour Party

09 December 2010 Media Statement
Enduring foreshore and seabed solution needed

Labour has today announced it is withdrawing support for the Marine and Coastal Area Bill.

“We are now working with other parties to develop an enduring solution that will fully recognise un-extinguished Māori customary rights and title while guaranteeing access to the foreshore and seabed for all New Zealanders,” said Labour Leader Phil Goff.

“There is already agreement that rights of free public access across the foreshore and seabed are not at risk and that they should continue to be protected by statute. In addition, there is also agreement that customary titles cannot be sold.

“New Zealanders need some finality on this issue. But it has become increasingly clear that the current bill won’t work and won’t last. That is why Labour is withdrawing its support.

“This is an issue we’ve been carefully considering for some time now. We have tried to make the current process work. But we are convinced that the National-led proposal will not provide an enduring solution. So the time has come for us to take a stand and find a new way forward. We need a new solution - one that will last and meet the needs of all New Zealanders.

“We are already in talks with the leaders of other parties about an alternative plan that will guarantee public access in law, recognise Māori customary rights and allow Māori to take all aspects of their claims to the courts.

“This allows for Māori customary interests to be properly recognised while avoiding ministerial ‘deals’ without the protection provided by the scrutiny of the courts to ensure legal thresholds are met.

“We want to secure a fair and enduring settlement. I’m aware that there is the political will to settle this issue and I hope the negotiations we have underway with other parties will help the country achieve finality.”



Labour seeks enduring solution to Foreshore and Seabed

The Labour Party has concluded that the new foreshore and seabed Bill ought not to proceed in its current from. It is widely criticised by submitters for many different reasons.

Labour has played a constructive role in trying to achieve an outcome that achieves settlement of this vexed issue. We have been willing to consider alternatives to the current FSB Act, including its repeal. We have not stoked race based fears, and have criticised those who have.

We submitted to the review panel that the right to seek a remedy from the Court should be restored, and remain of that view.

We are in discussions with other political parties who agree the current Bill is flawed.

We have tested with a range of submitters at select committee the idea that the threshold test for establishment of customary interests, and the interests that flow, should also be referred back to the Courts. There is considerable support for that view from both those who believe the tests codified by the Bill are too tough and from those who believe them to be too loose.

We have been exploring with them whether there is a parliamentary majority for such an outcome. This could be achieved by simple legislation enshrining rights of public access and inalienability of customary interests, with all matters being referred to the Courts.

The main criticisms of the Bill include:

The Bill will not settle the legislative framework for the determination of unextinguished customary interests in the foreshore and seabed.

This is now clearly evident from Māori Party comments and from submissions that this Bill will not achieve an enduring settlement.

That Māori do not have, or should not have recognised, unextinguished customary interests in the foreshore and seabed.

We disagree with these views. Unextinguished common-law Māori customary interests in the foreshore and seabed should be recognised.

There is now agreement that rights of free public access in and across foreshore and seabed (other than for discrete areas like urupä, ie burial grounds, ports, and existing Māori and non-Māori private titles) are not at legal risk, and should continue to be enshrined in statute. Similarly, provisions preventing the alienation of customary interest were recommended by the review panel and are widely supported.

The Bill allows deals to be done by the Minister without Court or Parliamentary oversight.

This is a valid concern.

Court processes ensure that all proper interests are taken into account in accordance with the law. Foreshore and seabed deals via Ministers without Court oversight cannot occur at common law, nor can they under the current FSB Act (where Court oversight is required). Settlements outside the FSB Act require separate legislation, which gives Parliamentary oversight. Agreements without either Court or parliamentary oversight are permitted under the Bill.

There is considerable distrust of this change in the new Bill.

Labour believes that there is a strong and valid public interest in the transparency achieved through independent Court processes. This achieves both verification that threshold tests for the establishment of customary title are properly met, and that the customary property rights of claimants are met fully (but no more than fully) in accordance with the law.

The provisions in the existing FSB Act requiring Court validation of proposed settlements were a condition of New Zealand First’s support for the current FSB Act. We agreed with that then and continue to believe in that principle.

The threshold test for establishment of customary title is too high

The threshold test is too low

While some divergence of view is to be expected, it is plain that this fundamental issue will not be settled by this legislation and that a sense of grievance will persist. It is also clear that some of this is founded upon unrealistic views (at both ends of the spectrum of opinion) of the common law threshold test which would be applied by the Courts following the Ngāti Apa decision.

The veto rights conferred upon iwi in respect of developments within customary title areas undermine the full and final nature of the commercial aquaculture settlement.

This is a valid concern.

Under that settlement Māori rightly receive 20% of marine areas allocated for aquaculture. They also have the right to apply for additional space. This was intended to settle Māori claims for commercial aquaculture space, which was what lay behind the original Ngāti Apa court case.

The bill would allow customary title holders to use their right of veto of RMA consents to developments within customary title areas to negotiate additional interests in commercial aquaculture. This has the potential to undermine that settlement.

The primacy given to Hapū and Iwi planning documents

The Bill requires Regional Councils to “give effect to” these plans. While we agree that these plans should have status, they are prepared without many of the protections that apply to balance the range of interests on land (including public submissions and appeal rights). While those processes could be introduced for Hapū and Iwi planning documents, they would become unduly expensive and onerous for all involved, including the Iwi or Hapū preparing them. This introduction of an alternative environmental planning regime has been rightly criticised by Local Government New Zealand, the RMLA section of the Law Society and others and is problematic.

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