In the ballot XVII: Foreshore and Seabed

Two years ago, in one of the most divisive political battles seen in modern times, the government and its allies in New Zealand First passed the Foreshore and Seabed Act 2004. Now, the Maori Party have introduced a bill to try and repeal it.

The aim of the bill is not to vest ownership of the foreshore and seabed in Maori. Rather, its purpose is to restore Maori equality under the law, and allow those iwi with a case the chance to prove such ownership in court by restoring the legal status quo ante before the passage of the Foreshore and Seabed Act. Because of this, the bill doesn't just repeal that Act, but also re-enacts some laws it repealed - in particular provisions identical to the Foreshore And Seabed Endowment Revesting Act 1991. These had the effect of a) revesting foreshore and seabed granted to harbour boards and local authorities in the crown; and b) establishing a regime so that such land was managed by DOC and could not be sold or transferred except by act of Parliament. The inclusion of these provisions has caused some Maori (and the Labour Party) to claim that the bill vests the foreshore in the Crown - which it does. However (and this is important), this vesting does not extinguish Maori customary title.

In its decision in Attorney-General v Ngati Apa 3 NZLR [2003] 643, the Court of Appeal explicitly considered these provisions of the Foreshore And Seabed Endowment Revesting Act 1991. Here's what they had to say:

• Elias CJ: [70] "The argument for the Crown entails reading s9A [s13 of the bill] to effect an appropriation to the Crown of Maori customary land in respect of foreshore and seabed when no such appropriation is made in the Land Act. The language of s9A(1) is not capable of being read as itself effecting a vesting of land."
• Gault P: [115] "The argument for the Crown is that title to Maori customary land could not be an interest in that land within para (b) [s13(6)(b) in the bill]. However, I am not persuaded that title according to tikanga maori to undeclared Maori customary land could not constitute an interest in land".
• Keith and Anderson JJ: [168] "The purpose and effect of s5 of the 1991 Act [s8 of the bill] is to revoke the earlier vesting of land in harbour boards and local authorities and re-vest it in the Crown. The theory of the present claim must be that customary property has continued to exist since before 1840. That property had not been "vested" in its Maori owners and accordingly there is no question of such a "vesting" being reversed."

  [170] "...the legislation is careful to save existing property and rights as appears from s2(2) of the Amendment Act as well as the saving in s(a)(1)(b). Indeed, as the President demonstrates, s2(2) alone provides a sufficient basis at this stage for the application to proceed. Just as there is no general confiscatory purpose in the 1994 Amendment Act, there is nothing in it which has the clear and plain character required to extinguish Maori customary property."

• Tipping J: [202] "Although s9A is wider in its terms than the earlier sections in the harbours Acts, its principal purpose seems to me to be the same. Notably, the revesting was not to "limit or affect" any interest in land held by any person other than the Crown. I agree therefore that it is not appropriate to regard either the Revesting Act in its original form or s9A as being designed to extinguish the status of such Maori customary land as might have been involved."

If the Foreshore and Seabed Act is repealed, and the legal status quo ante restored, then I would expect this precedent to be followed in any subsequent case over ownership. However, if people are concerned, it might not hurt to make it clear, for example by adding a s13(6)(c) stating that for the purposes of clarity, "interest in land" includes Maori customary title.

I do not think this bill will pass, but I think it is well worth taking. The Foreshore and Seabed Act was a shameful and unjust abrogation of the equality under the law guaranteed by Article 3 of the Treaty of Waitangi. The sooner it is repealed, the better.