Tuesday, November 16, 2004


The government has announced its proposed amendments to the Foreshore and Seabed Bill. Looking through them, they make it a far better bill, and move a long way towards a full recognition of customary title.

The key amendments deal with cases where the High Court finds that a claimant would have gained actual title but for the bill. They lay down more specific criteria on how this is to be assessed, and specify what relief the court can grant:

Where the High Court has found that a group holds territorial customary rights, it can at the group’s request direct the establishment of a Foreshore and Seabed Reserve. The Reserve will be held for the common use and benefit of the people of New Zealand and will acknowledge the guardianship status of the group. The Board of the Reserve will operate within the statutory framework of the RMA. Its tasks will include the preparation of a management plan which the local authority must recognise and provide for.

In other words, iwi with a strong claim can gain co-management and guardianship. This is a significant advance on the earlier "crown must negotiate" language.

One problem that remains is that the criteria for assessing territorial rights includes an element of contiguity; "applicants must also be able to demonstrate that they have had continuous title to a significant part of the dry land contiguous to the foreshore and seabed". This is an attempt to reintroduce the discredited Ninety Mile Beach doctrine by stealth. What matters is not who owns the land above the high water mark now, but who owned it in 1840. The government, at the urging of NZFirst, has also refused to recognise post-1840 transfers according to tikanga maori, which is a Prendergastian denial of tikanga's role in New Zealand common law. While in practice the requirement for continuous and exclusive use would tend to prevent claims to foreshore where the claimants no longer owned the land above the beach, it is still a disappointing move.

So, contrary to Big News' assertions, public input seems to have made a difference to this legislation (though possibly not in the direction he wanted it to).