Whether like Labour you believe the foreshore is everybody's or like National you think it's nobody's, this impasse was always coming. We need to debate ownership of the coastline as a whole

Those long summers of my childhood taught me to be careful of sharp rocks and rips when I was playing on the foreshore or being dumped by waves onto the seabed. National and the Maori Party are learning the same lesson at the moment, quite possibly at their electoral expense.

And y'know what? The meanest rock once again is property rights, the very same rock that caused Labour so much trouble.

The message coming from the hui held around the country in April didn't signal much hope for National's "public domain" concept, which would have seen all the foreshore and seabed not already held in private hands not owned by anyone.

As Hone Harawira said on Q+A in May:

"I don't think public domain does it for anybody. It's really just the option that the Crown thinks it might be acceptable, but I really don't think that that's where Maori want... well I know that it's not where Maori want to be. And I think it's kinda wishy washy for the rest of the country."

That line of thinking was reinforced by Ngai Tahi Chair Mark Solomon this past Sunday:

"To be blunt there are two areas that Iwi Katoa [all iwi together] who met on Friday have again unanimously rejected. One is the issue with the public domain. We refuse to forego all of our rights and put our rights to the foreshore under the public domain, as long as there are still 12 and a half thousand titles sitting there, private titles to the foreshore. If you put them into the public domain, then Iwi will have the discussion about putting all of our rights into the public domain."

After yesterday's Cabinet meeting, John Key laid it out: public domain is the government's only offer. If Maori don't want that, the current law will remain.

That has potentially opened a damaging wedge between the Maori Party and National. What's more, it's opened a division between the Maori Party, which was founded to change the law and needs it repealed to justify itself politically, and many hapu and iwi, which want change, but not at this price.

In fact, the division could go deeper, between iwi. For example, Solomon represents Ngai Tahu, where many hapu can't show "continuous usage" of their coast, and so can't claim customary rights without a law change. Other hapu can show continuous usage, so won't die in a ditch over that point.

Maori are likely to be more united, however, behind Solomon's argument that the public domain concept should be applied to all New Zealanders, not just Maori. The same principle drove Maori opposition to Labour's legislation back in 2004.

The argument then was that if pakeha could have their day in court to prove ownership of the foreshore and seabed, so why couldn't Maori? This time the question is why Maori should be asked to put their foreshore and seabed in public domain when pakeha owners aren't.

In essence, Maori are arguing 'one law for all', to quote the National party under Don Brash. Now, National is arguing for what could mischeviously be called a 'race-based' solution. (Isn't it bizarre how politics twists in on itself?)

I don't often get to say 'I told you so', so let me point you back to past posts of mine, such as this and this, raising the point of pakeha ownership of the foreshore and seabed.

Solomon is bang on... whether you start from the first principle that the foreshore is either everybody's (Labour) or nobody's (National), at some point you have to ask about the rest of the foreshore and seabed, the stuff hapu and iwi don't claim title over. If Maori have to give up the chance to fee-simple title, don't we have to ask what should happen to those who have fee-simple title now? And if the chief political concern is access to the beach (and royalties from the seabed), why do iwi and hapu have to share while others get to shut their gates on the rest of us.

Problem is, neither major party had the gumption to deal with this issue; they both tried to shut their eyes to this sharpest of rocks. Labour understood the principle, because they were driven by the idea of collective ownership, of beaches that belonged to everyone. But they bottled it. National never got it, because they were only driven by the sanctity of property rights.

Really, this rock was always waiting between the ocean and the beach. So what's to be done?

The only fair way round it I can see if to go back to Labour's initial instinct and say 'the coast belongs to everyone'. Or, if the public domain idea sticks, it belongs to no-one. Either way, the debate needs to encompass the entire coastline. (If you have another solution, I'd love to hear it.)

Customary rights and title would have to be dealt with by the courts. Iwi and hapu and 12,500 private owners would have to be compensated. I'm sure there are many other implications that I can't bring to mind now.

But for now we look most likely to stick with the status quo. National can shrug it off with a wink to its base. For now. Iwi and hapu can wait for another government.

The loser for now looks to be the Maori Party. This is hardly "mana enchancing". The question becomes how its leaders handle this slap down by Key, the second in a month. And what damage this does to the coalition.

 

Comments (15)

by Graeme Edgeler on June 09, 2010
Graeme Edgeler

The argument then was that if pakeha could have their day in court to prove ownership of the foreshore and seabed, so why couldn't Maori?

I'm pretty sure it wasn't.

There were many arguments, from the "One, two, three, four - we own the foreshore" chanted at the Hikoi, to the more nuanced (and thus accurate) argument that there is a common law right of access to the Courts, and that the Courts may recognise a customary title to parts of the foreshore or seabed under the common law, but the argument was never that pakeha could have access to the courts to prove ownership of the foreshore. The closest it could have gotten would have been 'pakeha have access to the courts to pursue their legal rights, why shouldn't Maori have access to the courts to pursue their rights, in this case a right to customary title in the foreshore and seabed which in this case is a right that could not vest in pakeha and could only vest in iwi and hapu.'

by Tim Watkin on June 10, 2010
Tim Watkin

You're right Graeme, I've conflated two ideas. Of course there were a range of arguments, but I think the core one that emerged was that Maori were being denied their day in court. That's what I was refering to.

Another argument alongside that was that if pakeha could get fee simple title, why couldn't Maori? But the two were separate.

by Graeme Edgeler on June 10, 2010
Graeme Edgeler

Another argument alongside that was that if pakeha could get fee simple title, why couldn't Maori? But the two were separate.

How do Pakeha get fee simple title?

by Mark Bennett on June 10, 2010
Mark Bennett

Many of the private interests are held by central or local government - according to this report "37.64 percent were Crown owned, 31.42 percent were owned by territorial authorities". This doesn't mean that public access is allowed in these areas, but it does give a slightly different spin to the 'private hands' issue.

That said, 20 per cent of these 12500 or so interests are general land, which may be owned by non-Maori. The point that the iwi leaders and Tim seem to be making is that either we are concerned with private ownership of the foreshore and seabed (in which case we ought to compulsorily acquire all such interests), or we are not (in which case, why do we need the F&SA04 or any replacement?).

In other words, the argument is clearly not about how the different property rights in the foreshore and seabed got there, but about the justification for removing them and the universal application of that justification. One could argue that there are relevant differences in how the existing private interests got there that make them different from the interests recognised by the common law. This may be the case for the interests of government, especially if "The Crown land was largely used for national parks, railway and reserves. Land owned by territorial authorities was mainly used for esplanade reserves, recreation reserves and roading,".

But I think it would be pretty difficult to make a plausible argument saying that interests in the foreshore owned by non-Maori should continue, whereas possible interests recognised by the common law are to be extinguished and transmuted into statutory interests. If there is no justification that requires that the foreshore be free from private rights, then it seems bizarre to not let the common law determine the extent of existing customary rights. If there is such a justification, then all private rights should be removed and their owners compensated.

 

by Tobias Barkley on June 10, 2010
Tobias Barkley

As has been pointed out somewhere else (I can't remember where), there is almost no difference between the idea that the F&S is owned by everybody and the idea it is owned by nobody.

"Whether something is common property or is seen simply as the property of no one may be inconsequential. ... The air we breathe may be thought of as the common property of all, but it is equally sensible to think of it as the antithesis of property."

"... in its purest form is the right not to be excluded"

Bruce Ziff, Principles of Property Law (2006) at 7.

 

by David Beatson on June 10, 2010
David Beatson

Is there a specific legal definition of "public domain" in New Zealand?

by Tim Watkin on June 10, 2010
Tim Watkin

Mark, I think we're on the same page there. If it's only 20% of the coast that's truly in private hands, that does make any compulsory acquisitions process less expensive. Worth pondering...

Graeme, where are you heading with that question? Obviously the answers are numerous... some bought, some inherited, some confiscated, some given by government as settlement land or as a war farm, some probably claimed as empty land to be seized 160 years ago, some a mixture of those, and on and on... You're not going to try and say that all pakeha-owned coastal land was simply bought and is therefore different from Maori-owned land are you? Because that'd be way too simplistic.

by Tim Watkin on June 10, 2010
Tim Watkin

David, this from the Copyright Council:

The term “public domain” refers to material in which all copyright has expired. The term can also refer to material where the copyright owner has given very broad permissions to people to use it.

... because it usually refers to intellectual property rather than geographical property. But when it does refer to land in other countries, the online legal dictionaries say things such as this:

Historically, public domain was limited to describe, in law, land owned by government. For example, in St. Catharine's, the court equated public domain to mean land owned by the Crown; i.e. the government.

So an interesting point David - public domain seems to equate to government owned land. So how exactly is it different from the status quo? Perhaps one of our lawyer friends can answer that, because it's certainly being argued that it is different...

 

by Graeme Edgeler on June 10, 2010
Graeme Edgeler

Graeme, where are you heading with that question?

It was in response to this question:

Another argument alongside that was that if pakeha could get fee simple title, why couldn't Maori

My point was that pakeha can't go to court to get fee simple title, so an argument that Maori should be able to go to court to get fee simple title because pakeha can do it is bunk.

by Mark Bennett on June 10, 2010
Mark Bennett

So Graeme's point is merely that Pakeha could not benefit from the common law doctrine of aboriginal title to get a fee simple title to the foreshore and seabed. (It was unclear, some would say unlikely, that Maori could get fee simple title).

Whereas as I stated above "the argument is clearly not about how the different property rights in the foreshore and seabed got there, but about the justification for removing them and the universal application of that justification." Anyone with an interest in the foreshore can go to court if need be to enforce it, whereas 'we' decided that Maori should not be able to have such interests. That Maori interests would arise by a different process is irrelevant to the question of whether the foreshore should generally be kept free from private interests that would exclude public access.

So Tim should have said "if pakeha could [have] fee simple title, why couldn't Maori?". At least, that is the question that the rest of the post is concerned with. And which I am not sure there is any good answer.

by Tim Watkin on June 10, 2010
Tim Watkin

The Court of Appeal opened the door to Maori to try to establish ownership of some parts of the foreshore & seabed; the threshold was very high but they chance was there. The Foreshore & Seabed Act closed that door (although arguably protecting other rights – perhaps rights that were more important), thereby denying Maori, and Maori alone, that court process. If I thought I owned a bit of coastline, but there was some doubt about my title, I could go to court to sort it out, they couldn't. That's the difference.

My wider point is that there was, and is, huge political concern about iwi and hapu owning the foreshore and seabed and restricting access. That has driven both Labour and National to legislate or re-legislate.

But as we now know, 12,500 titles are already held, so if the core political and national concern is access to the beach and to the riches (emotional, recreational, mineral, whatever) of the foreshore and seabed, I don't see how we can look at the areas that hapu and iwi may claim in isolation; we need to consider the whole coastline. That's what the past two governments have shied away from, but which keeps tripping them up.

by Justin Maloney on June 14, 2010
Justin Maloney

I don't see how we can look at the areas that hapu and iwi may claim in isolation; we need to consider the whole coastline.

Pretty dissapointed to see the mainstream media dont appear to have picked up on this at all.

I also wondered why thy didnt look for a more innovative solution. Such as allow title in FS&SB but allow access to all beaches and even legislate around mineral rights (which I think is the elephant in the room for many).

by Richard Thomson on June 15, 2010
Richard Thomson

I think you're misunderstanding a few things here. The 12,499 titles in that report actually refers to "land adjoining the foreshore". Something quite different (and proof, I guess, that there's no such thing as guaranteed access to the foreshore & seabed, whoever owns it). I've no idea how many private (ie neither Maori nor local/central government) titles exist, but Te Ara says that under the 2004 Act: "Public foreshore included areas owned by local authorities, but excluded an estimated 256 parcels of the foreshore and seabed in private title."

If it's really so few, that's possibly more reason for those titles to be included in any FS&SB solution, but also suggests that their existence is not such a huge deal.

by Tim Watkin on June 15, 2010
Tim Watkin

Richard, it's a good link, but I'm afraid it says something completely different from what you say... It says there are "12,499 titles to the foreshore" covering "5866.3km of the total 19,883km (including Chatham and Pitt Islands) of New Zealand's coastline".

As for the "land adjoining the foreshore", it says:

The 2003 memo also noted there were 33,712 parcels of land adjoining the foreshore.

Of those 37.64 percent were Crown owned, 31.42 percent were owned by territorial authorities, 20.05 percent general, 10.35 percent Maori and 0.54 percent unresolved.

The Crown land was largely used for national parks, railway and reserves. Land owned by territorial authorities was mainly used for esplanade reserves, recreation reserves and roading, the memo said.

All of which is an interesting other wrinkle. Ramblers' rights for anyone wanting to walk through those 6,500+ (20.05%) private properties to get to the beach?

by Richard Thomson on June 16, 2010
Richard Thomson

Tim, you're right. But it still didn't seem to add up to me. I found that 2003 memo – and it says:

"Based on the RM Act definition that the upper limit of the foreshore is at mean high water springs, 12,499 privately owned parcels would (at least in part) be within the boundary of the foreshore."

But 12,243 of them are included because they were surveyed to the mean high water mark. There's a difference – I think it's due to changes in the legal definition of the foreshore over time – but how material is it? Does it constitute the meanest rock of property rights? The same paper can only come up with 27.3km of foreshore below mean high water mark in private ownership (other than areas where the coast has eroded away).

I reckon we should be asking for that 27.3km to be nationalised (sorry, put into the public domain) and for ramblers' rights.

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