Four years ago today, on November 24 2004, the Foreshore and Seabed Act received the royal assent and became law. Now with the Act under review by the new National-led government, its worth asking: what would happen if we repealed it?
The Foreshore and Seabed Act was passed in response to the Court of Appeal ruling in Attorney-General v Ngati Apa ([2003] 3 NZLR 643). As a result of a long and convoluted dispute between a coalition of South Island iwi and the Marlborough District Council over customary fishing and aquaculture rights, the Court was asked to rule whether there was any legal barrier to land below the high water mark - the foreshore and seabed - being declared Maori customary land. It found that there was not. Whether a particular piece of foreshore or seabed was in fact Maori customary land was a question of fact, to be determined by the Maori Land Court - but the Court unequivocally had the power to make such determinations.
This rather narrow ruling was immediately misinterpreted by Maori and Pakeha alike as saying that Maori owned the beaches, and its limited scope and careful caveats were drowned in a tidal wave of hysteria and fear. The then-opposition (and now-government) engaged in an outright campaign of fearmongering, raising the spectre of a flood of claims and of successful claimants restricting public access and stopping people from going to the beach. It worked. Within four days the government announced its intention to legislate to "clarify that in fact the seabed and foreshore is owned by all New Zealanders in the form of the Crown". And they proceeded to do just that - without any serious attempt to consult Maori.
The resulting legislation did three things: it permanently and retrospectively vested ownership of the foreshore and seabed in the crown; it removed the jurisdiction of the Maori Land Court to hear claims for ownership of the foreshore and seabed, and limited the courts to granting only customary usage rights which could not amount to full ownership; and it created a system for recognising and managing those customary rights. While motivated primarily by a desire to avoid an electorally damaging backlash from Pakeha, the legislation was justified by two arguments: the need to preserve public access to what was generally assumed to be a communal space, and the need to prevent uncertainty to business. The possibility of repeal will no doubt raise these issues again. So how much of a problem are they?
While there is a great deal of fear over public access, it seems that it is largely unjustified. The heat and fury of the debate has masked a vital fact: it is not the actual beaches in question, but the intertidal zone - the sand that is wet by the tide. In its report [PDF] on the issue, the Waitangi Tribunal noted that there is a significant practical question of how access to this area could really be limited when the land above it is - and again, this has never been in doubt - public space. Regardless of who owns the foreshore, no-one is really going to be able to put up a toll-booth and charge anyone taking a dip in the water.
As for the legal question, the Court of Appeal noted that iwi would likely be able to show only limited usage rights, and that claims for full ownership would face "a number of hurdles in fact and law". Even if those hurdles were passed, many iwi have publicly stated that they have no intention of limiting access if their claims were successful - they are about the recognition of mana and kaitiaki, not the exclusion of others. While land successfully claimed could be sold to owners who were not so generous, this is even more unlikely, and would violate Maori cultural norms. The Waitangi Tribunal suggested the "threat" could easily be addressed by legislating to prevent such alienation - legislation which, if done properly, would be likely to enjoy the widespread support of Maori.
The business uncertainty argument is more interesting. In their "proposals for consultation" booklet, the government argued that allowing the legal process to proceed
also has the potential to create significant legal and administrative confusion and uncertainty, because it is not at all clear how private ownership of the foreshore and seabed would affect development and activity in the sea itself, and other legal rights. How would freehold ownership of the seabed under the Land Transfer Act be reconciled with the rights of commercial and recreational fishers? Or with tourist
operators who have a licence to visit particular areas? Or with the internationally recognised right of innocent passage for vessels through New Zealand’s territorial sea?
This fear was
echoed in responses from the public [PDF]
Business investors were concerned that recognition of customary rights may compromise the viability of some operations. The potential for there to be additional hurdles to overcome in the consent process, occupancy fees, requirements for partnership and profit sharing with Maori, and a breakdown in race relations that would undermine cooperation, were among the risks they identified.
In their report, the Waitangi Tribunal questioned whether these uncertainties were really significant, or so dire as to justify an instant fix which undermined the rule of law. While claims might take years to work their way through the courts, because of the way our legal system works nothing would change in the meantime. And because the courts would be highly reluctant to negate existing permits and usage rights which had been legally granted, they would not be immediately affected even if a claim was successful. The worst "uncertainty" commercial operators would face is that conditions could change when their permits or licences came up for renewal - exactly the same as they face now. This hardly seems compelling. And while nervous businesses could be more reluctant to invest in coastal development until the legal situation was resolved, that would hardly be the end of the world. As the Tribunal noted, the government had imposed a three-year moratorium on aquaculture development to allow it to finalise policy, without any real ill effects.
So what would happen then if the law was repealed and the situation returned to the status quo ante on November 24 2004? Nothing much. Iwi and hapu would file claims, and these would work their way through the courts. And as cases were decided and appealed, the courts would gradually establish a framework for granting customary rights and a threshold for full title. Local bodies and government departments would then work out and establish a consensus on how to recognise and protect those rights within the RMA and other legislation. The net result would likely end up looking similar to the deal just signed with Ngati Porou [DOC], which recognises and protects their customary rights by granting the iwi effective co-management of the coast, complete with consultation rights on fisheries and conservation decisions and a veto on resource consents which would interfere with customary activities. We would end up pretty much where we are now, but without trampling all over the rights of Maori.
This suggests that we have nothing to fear from repeal. It would result in a legal process which would take time, but that's hardly the end of the world. And if the government wants a quick resolution, it can always settle. That's what it did last time something like this happened - when the courts ruled that the government could not allocate fishing quota in the 1987 fisheries cases. In that case, the government had agreed an interim settlement within two years and a final one - the Sealord Deal - within five. It could do the same with the foreshore and seabed. Both government and iwi would benefit from the certainty of a settlement, which because of the inherently local nature of customary rights, would have to focus on creating a framework for their recognition and interaction with existing rights. The resulting legislation would likely look very similar to the existing sections 3 and 4 of the Foreshore and Seabed Act, allowing the acknowledgement of mana whenua, recognition of customary rights, and co-management. It could even include a public vesting, but the big difference is that it would all be done with the consent of Maori, rather than without it. And that would make all the difference in the world.
