Wednesday, February 18, 2004

More legislation

ACT and National also make a lot of noise about the Territorial Sea, Contiguous Zone, and Exclusive Economic Zone Act 1977 as part of their argument that the Crown owns the foreshore and seabed. Unfortunately it seems to be as much of a loser as their other central plank.

The relevant part is section 7, which asserts retrospective ownership of the seabed between the low-water mark and the edge of the EEZ. Unfortunately, it too includes one of those annoying "subject to the grant of any estate or interest therein" clauses - which means that if it was already owned by someone else, or a customary right was exercised, then the Crown may not in fact own it.

(Which is why the Court of Appeal was able to find that there was no barrier in law to the Marlborough tribes owning the foreshore and seabed under dispute. The question is one of fact - did they in fact own it in 1840; have they exercised customary rights on it since then - but that is something for the courts to inquire into).

Compare this with the Crown Minerals Act 1991, which universally expropriated all petroleum, gold, silver and uranium still in the ground to the Crown. Its on much firmer legal grounding because it did this "notwithstanding anything to the contrary in any Act or in any Crown grant, certificate of title, lease, or other instrument of title". It could still give rise to a Treaty claim (and I believe that some Taranaki tribes are mounting a claim for oil and gas), but not an ordinary court case.

So, why didn't our politicians use that strong "nothwithstanding" language in legislation dealing with the foreshore and seabed? Because they wanted to respect existing title. People already owned small bits of it here and there - farmers who had their title granted in the 1850's; people whose land had eroded - and the government did not want to expropriate their land. But respecting existing title also necessarily respected common law property rights as well.

More importantly, we as a society have been happy enough for people to own foreshore and seabed for our entire history. Yet now that Maori are pursuing claims through the courts, we're not. Why? What has changed? Is this about the potential scale of privatisation - or about the new potential owners?

If the problem is one of scale - that too much of the beach will be privately owned, and that this will interfere with our customary recreational usage - then any solution should treat all owners equally. If OTOH it is about who the owners are, then its nothing more than racism.