Welcome to the cultural battleground... Resolving the foreshore and seabed could yet fall to the Supreme Court, in what would be a case of Roe v Wade proportions
It was a court case that started the foreshore and seabed debate and it could yet be a court case that ends it. The Ngati Apa group of tribes found themselves in the Court of Appeal in 2003 as they tried to figure out whether they could get into the marine farm business.
For all the political and legal machinations in the years since, the government must be sorely tempted to simply kick the matter back to the courts and let the chips fall where they may. Winston Peters appearance on Q+A yesterday reminds us that, whatever declarations of sweetness and light greeted last week's review panel report, this is still the hottest of political hot potatoes. National wants to keep the Maori Party on side, but do they really want to spend the amount of capital required to do it? Doing a deal with the Maori Party will antagonise their base no end.
Let's consider some of the differing viewpoints that need to be reconciled here.
I was talking to a Maori friend last week who spoke of a slice of estuary that his family has lived beside for 600 years. They had customary title over it, awarded by the Maori Land Court in the 1870s and he grew up assuming it was his responsibility. It was to be protected for at least another 600 years; he felt obliged to care for it in the interests of his wider kin, but this wasn't a matter of iwi ownership. This 'belonged' to his whanau.
So to him, the government's decision to nationalise the foreshore and seabed of that estuary was, as Tariana Turia has said, an act of theft. He doesn't want compensation though, and nor does he want some national settlement or the wider iwi speaking on his whanau's behalf. He just wants the law put right and his family to have a guaranteed say in what happens to that stretch of water. He agrees that he doesn't have the right to stop anyone else from using and enjoying the estuary; access for all is fine by him.
If it ended there, a resolution wouldn't be so hard. But ask whether it might be in the "interests of his wider kin" to one day, say, develop or mine the estuary, and he won't rule that out, even though he adds it wouldn't happen for a few generations yet.
And so the question becomes, if his family has a customary title but not a fee simple title, do they have the right to do as they wish with that estuary? And what rights does the Crown have, on behalf of all New Zealanders, to tell them what to do?
The Court of Appeal in 2003 ruled that some Maori – although not many – may have the right to claim a property right over their bit of foreshore and seabed and do as they wish with it. The review panel last week also seemed to suggest that a customary right could become a full-blown property right.
But talking to Sir Douglas Graham last week, he described a customary right as the right to do something that your people were doing back in 1840. If you were hunting and fishing then, you can hunt and fish now. No one can stop you exercising that custom. But if you were building holiday resorts and mining for minerals then, you can do that now. As you can see, that view is at odds with my Maori friend, who thinks those customary rights can be extended into a modern context.
Which is a hefty legal debate.
One other point often overlooked in this debate is that about 30 percent of the land adjoining bodies of water is already in private hands; presumably, mostly pakeha private hands. There are already a huge number of beaches that New Zealanders can't get to. Fact is, for all the anguish about Maori cutting off access to our beaches, my guess is that pakeha farmers are probably denying you and me access to more beaches than Maori.
If farming families have right of denial and development and Maori whanau don't, is that fair?
The Maori Party, and indeed National, would rather do a quick, quiet backroom deal on this. National doesn't want to have to manage the political fallout of this "weeping sore". The Maori Party started this campaign fighting for its day in court. The irony now is that they'd rather sort this out within government, rather than risk the uncertainties of a court ruling.
There's virtue in that approach. If MPs could forge a political consensus on this, any resolution would be long-lasting. I can't imagine what compromise would be acceptable to all, but I'd admire any politicians willing to try to find one.
If the courts decide, the ruling could be a political football for years, even decades.
Attorney-General Chris Finlayson, who seems to want to sort this, may not be able to convince his cabinet colleagues to risk a political settlement that they have to take responsibility for, and the Maori Party can hardly argue publicly against sending this issue back to court. They're boxed in.
If this issue does go to the Supreme Court, it would be that court's first real test. It would have to wrestle with competing world views and would have to fit legal definitions around our cultural relationships, our relationship with the land and sea, and the rights that tradition hands down to us all. It could be to New Zealand what the abortion ruling Roe v Wade has become to America – a decision that defines the national soul and a major battleground in the culture wars.
Comments (11)
Tim
With regard to the statement that "One other point often overlooked in this debate is that about 30 percent of the land adjoining bodies of water is already in private hands; presumably, mostly pakeha private hands". This issue relates to the land below Mean High Water Springs (i.e. under the waterbodies). Not the land adjoining waterbodies. Surely the correct comparison should be with the areas of foreshore and seabed in private pakeha hands? A very small percent of the total foreshore and seabed I think (though I don't have the figure).
To complicate things (nothing seems simple with this issue) I am aware that continuous occupation of the adjoining dry land can be factor in determining if customary rights apply to the foreshore and seabed.
Jeff
Tim,
A quick technical point. Any appeal from the Court of Appeal decision would (without further legislative action) have to go to the Privy Council. The Supreme Court only has jurisdiction to hear appeals from decisions of the Court of Appeal reached after 31 December, 2003. I'm not sure whether such an appeal can lie, given the six-odd years passage since the Court of Appeal decision - Graeme Edgler, if you read this ... any thoughts?
On a more substantive point: when you say: "The Court of Appeal in 2003 ruled that some Maori – although not many – may have the right to claim a property right over their bit of foreshore and seabed and do as they wish with it", this isn't quite the full story. True, the Court of Appeal recognised some Maori could get customary title recognised under the Te Ture Whenua/Maori Land Act, and true this customary title could potentially be turned into fee simple title at a later date. But that was few steps down the chain - and legislation could easily have prevented this by amending the Te Ture Whenua Act.
The more general point is, we need to be a bit careful when we are throwing around terms like "customary rights", "property" and "title". Talking about land as being "property" actually encompasses a whole bundle of different sorts of rights - right to access, right to exclude, right to use, right to transfer to others, right to alter/change (ie develop), etc, etc. So to say someone has "a property right" in a piece of land actually may mean a whole lot of things - from that they only have a personal right to walk across it, through to possessing the whole bundle of rights (ie having "fee simple" title to it). There's nothing too mysterious about this - consider the morass of legal rules governing inner city apartments in Auckland!
It seems to me that there's an emerging consensus that customary (or aboriginal) title in NZ will never equate to full fee simple ownership. Instead, there'll be a range of "property rights" that will not attach to customary title:
(1) Customary title will not include the general right to exclude others (aside from perhaps when necessary to enforce rāhui or the like);
(2) Customary title will not include the right of alienation - the right to onsell or otherwise transfer any property interest in the land at issue;
(3) Customary title may permit some forms of development - but how these rights will intersect with other regulatory regimes (ie the RMA, etc) is unclear. Also, it is unclear if customary title will give exclusive rights to develop, or simply some form of preferential/first off the block advantage.
Frankly, I think these sorts of questions are (1) too important and (2) too political and far-reaching to leave to the courts. And I suspect doing so would simply generate pressure to alter the court outcome, whatever it is. Remember, the important point about Roe v Wade is that once the US Supreme Court spoke, Congress could not respond (as it was a matter involving an entrenched constitutional right). In NZ, Parliament couldn't duck the issue in that way!
Any appeal from the Court of Appeal decision would (without further legislative action) have to go to the Privy Council. The Supreme Court only has jurisdiction to hear appeals from decisions of the Court of Appeal reached after 31 December, 2003. I'm not sure whether such an appeal can lie, given the six-odd years passage since the Court of Appeal decision - Graeme Edgeler, if you read this ... any thoughts?
I believe such an appeal could be brought (although I think it would be by leave). My knowledge of the Privy Council is mostly in respect of its criminal jurisdiction, but I would note that many of its final hearings (or at least applications for final hearings) into such matters happen many years after the final appeals in New Zealand. I think there are suggestion that Barlow and others might still be London-bound despite the time lapse.
[I do note that the UK is getting its own Supreme Court in only a few months.]
Parliament could kick the matter to our Supreme Court by passing legislation giving it jurisdiction, but I suspect it would be more trouble than it is worth - on a practical level, even ignoring the political cost.
Of the five current judges of the Supreme Court, two - Elias and Tipping - would have to sit it out because they made the Court of Appeal decision under appeal, and McGrath would likely have to sit it out because he will have been Solicitor-General during the early stages of Ngati Apa in the 90s. They would need to be temporarily replaced for the case: however, the three mostly like candidates to fill these three spots - the retired Supreme Court judges Gault, Keith and Anderson - were the other three judges in the Court of Appeal. You'd be going back to former Court of Appeal judges like John Henry or Ivor Richardson just to get a coram.
Graeme, thanks for those facts.It would get complicated!
If the case did go to the Privy Council, wouldn't it likely refer it back to the Supreme Court here? I seem to recall it referring cases back to NZ courts in the past, saying they would be more appropriately made on home soil. And this is surely that kind of case. What's more, the ruling was so close to the cut off date. Any ruling from the PC now would seem empirical and therefore somewhat unsound.
Andrew, I confess I was talking about property rights in terms of freehold rights; ie the way most people own their own home. I think those are the terms in which most people approach this issue, but point taken.
The range of property rights existing within customary rights is interesting... I can imagine some Maori arguing that any land awarded them by a New Zealand court (ie the Maori Land Court) should afford them the same rights as any land granted to pakeha under the nation's law (ie most people's homes).
But if there is such a consensus emerging, it seems sensible. The fish hooks, it seems to me, come with the third point. I actually think most Maori get (and share) the concerns over access and wouldn't want to build fences. It's the question of development and its exclusivity that remains thorny.
I hear what you say about the US Supreme Court. But it would be a brave government that sends the issue to the courts then overturns its ruling if it gets a result it doesn't like. Labour did that with the Appeal Court ruling and look how it cost them, even to last week when a government panel said they were ethically wrong. How much worse with the Supreme Court!
And for all that Congress couldn't act, Roe v Wade has played a part in every election campaign since. Congress – and voters – have responded to it every two years since. This issue could go the same way.
I wish our politicians would stop trivialising peoples' fears by talking about the right for a family to walk along a sandy beach. The conflict is about control of kaimoana and the coastal environment.
I think it was Jared Diamond who observed that loss of or severely reduced access to a previously utilised resource, is an almost universal cause of conflict, not only among humans but many other species also..
I recall that among flatmates the one who used the last of the milk had better get down to the shop real quick.
Access to kaimoana is waning and the number of potential consumers is growing.
Many Maori in rural and isolated areas have a strongly held belief in longstanding community rights to kai moana, including some proprietory rights over specific bodies of water.
Thanks to efforts of Hone Harawira and others, many Maori also believe the government stole those rights with the foreshore and seabed act.
These rank and file Maori now expect these proprietory rights to be "restored."
Among Pakeha families and communities there are highly valued fishing and diving excursions that have been shared for several generations.
The Maori population alone has grown perhaps sixfold in a couple of centuries, and the total population is now some twenty times more numerous, and the kaimoana stocks are shrinking.
At present, in this comparatively law abiding society, the majority accept albeit with some reluctance,the government's lawful right to tax, and also to declare restrictions on the taking of kaimoana.
Any suggestion of inequality of access to kaimoana will create conflict, will damage this relatively peaceful aspect of national life.
I am fearful that Pakeha New Zealand males on traditional summer fishing excursions are not likely to remain tolerant and peaceful if confronted by Maori males who consider they are protecting their family's traditional rights.
Bruce, as I understand it many coastal Maori would have a customary right to kaimoana that pakeha wouldn't have... but as Andrew writes above, that wouldn't include the right to exclude others arbitrarily. I'm guessing that any hapu with a connection to a piece of water will be pushing for an official say (a seat, probably) on the political body that decides those taxes and restrictions you describe. Would that upset pakeha fishers?
I'm guessing that any hapu with a connection to a piece of water will be pushing for an official say (a seat, probably) on the political body that decides those taxes and restrictions you describe. Would that upset pakeha fishers?
I'd imagine much more like this. The deal Ngati Porou came to with the government under the Foreshore and Seabed Act gave them veto rights. I would note that the seat at the table is already there - with many iwi and hapu working with the Ministry of Fisheries and establishing rāhui over specified areas, etc.
Sure Tim, that is the correct situation. I do not have personal doubts (well not many anyway) about the legal rights under negotiation.
But I am very concerned at the mood in a number of rural and isolated areas where the niceties you and I are talking about are not the issue.
Nobody I know among Maori Party supporters for example, have a clue about the original legal case and the ruling that set the barracuda among the mackerel.
Peter Sharples and John Key are not a scarey pair, but such headliners as Hone Harawira and Tame Iti are also setting the tone for this debate.
I know how angry and confused young men can get in the present circumstances when confronted by uniformed fisheries check points, and it is these heated and often very emotionally loaded situations that concern me.
I also received stories of several instances, including a report from our local mayor last summer, of being abused and ordered off isolated beaches by very confrontational Maori.
Great panel on Q&A for second week in a row.
Sticking to the thread, I thought those three covered the topic pretty well.
I am not a fan of Paul Holmes, usually,but panel host suits him, he has always been easier to take as a gossip than a pontificator.
McCarten still could not get them to pay attention to the reality that those 60,000 on the hikoi had a greivance they truly believe in, and it is a mistake for the government to be saying to Pakeha not to worry, it is no big deal.
The enjoyment of the foreshore and seabed is a valued part of choosing to live in this country. A passion shared by all ages, social groups and ethnic origins. We like going fishing and we like to share that experience with those who are important to us personally.
We have to acknowledge just how seriously we all feel on this issue.
James Belich's point, that most pakeha settlers came to NZ because of its reported abundance and because they were sick of gentry telling them where they could and couldn't go is a telling one. The right of access and enjoyment is part of the pakeha kaupapa and yes, many pakeha take it very seriously.
But I keep coming back to the point of consistency. Doug Graham may well be right... to prove that they have owned a piece of land since pre-pakeha times, hapu or whanau may have to go to court rather than just have the government take their word for it. And that's tough for a semi-nomadic culture. But if they can make the case, pakeha will have to deal with it just as they deal with pakeha who own title for the foreshore. And it still bugs me that people talk about Maori excluding people from the beach when many land-owning pakeha do the same thing without people fussing.
I still think the fairest solution – the most Kiwi solution – is to create a proper Queen's Chain that means no-one (neither pakeha property owner, Maori customary title owner, nor government) can exclude other people from the foreshore and a few metres of the beach. The coastline should be common ground.
The thing that's always puzzled me about 'The Treaty' is that the farther we have gone from its origin the more complicated its meaning has been made.
Article Two says that as at the time of the chiefs' signings, those lands and usages in their possession would remain theirs and their tribes' unless they wanted to sell them (In which case they would have to sell them to the Crown).
It seems to me that if they never sold or otherwise alienated ownership and stayed in possession of their lands and rights continuously they still have them.
Today, if their historical ownership is proved it should be respected and they should be left to use their properties as they think fit. If they have had their properties illegally taken they should be compensated where it's not possible to restore their property.
If we all have to go to court to prove who owns what so what? These days that's what people do to prove legal ownership stealing of land by right of conquest no longer obtains.
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