Sunday, November 21, 2004

An appalling ignorance

Tristan of About Town has some thoughts on the passing of the Foreshore and Seabed Act 2004. However, in pointing out that the Court of Appeal decision in Ngati Apa v Attorney-General did not mean that Maori owned the foreshore, only that there was no law which automatically said that they did not, he says

They came out and said we knew we owned it all along…. That is after being silent for 160 years, and allowing dozens of mariners, ports and boardwalks over land which apparently, they knew they owned.

(My emphasis). He later repeats this claim, saying

Maori never owned it (you would think there would be some kind fuss in the last 160 years if they did)

All I can say is that this shows an appalling ignorance of the history of Maori claims to the foreshore and seabed. No matter what you think of the merits of those claims (which are now almost certainly a dead issue, at least as far as the courts are concerned), it cannot possibly be said that Maori have never raised the issue until last year. The ownership of the foreshore has been contested in the courts by Maori since the 1860's. A 1996 report [PDF] to the Waitangi tribunal by Richard Boast lays out some of the history. According to Boast, the earliest cases date from the 1860's, and at that stage the Native Land Court sometimes granted title to parcels of foreshore. However, following the discovery of gold under mudflats near Thames, the government acted to exclude that area of the foreshore (and that area alone) from the Court's jurisdiction, resulting in an end to cases in the area. This was presented as a deferment, rather than a denial of claims, and the exclusion lapsed in 1873, by which time the Crown had purchased most of the land in contention.

The Kauwaeranga case in 1870 resulted in a different solution. Rather than grant exclusive title to the foreshore, Chief Judge Fenton instead granted an exclusive fishing right, on the basis that that had been the extent of Maori interests. The Native Land Court followed this practice until 1909, when the present "freehold title or nothing" system was instituted.

The early part of the twentieth century saw several cases over the ownership of the Awapuni Lagoon near Gisborne and Te Whanganui-a-Orotu (the inner harbour, later raised in the earthquake) near Napier. The latter case dragged on for thirty years, but was inconclusive. The matter has since been revisited by the Waitangi Tribunal. It also saw the beginning of a protracted series of cases in Northland, which involved direct action as well as appeal to the courts (Whina Cooper was involved in destroying the stop-banks of a farmer trying to reclaim contested mudflats in 1922). The final case in this series was the oft-mentioned In re Ninety Mile Beach (1962), which ended Maori claims for a generation but kept legal academics (including Boast) in papers for forty years arguing over whether it was correctly decided; in Ngati Apa, the Court of Appeal decided that it was not.

An examination of the history shows that Maori have not been silent on the issue of the foreshore; they have, in fact, made "a fuss", asserting their rights by protest, petition, legal and direct action, in the face of continuous denial by the Crown. Why is Tristan unaware of this? I can only speculate that he has never bothered to look. Sadly, that explains the views of far too many on the foreshore and seabed issue...