This page last modified 30 September 2003
Press Release by ACT New Zealand 19 June 2003
"The Treaty of Waitangi Fisheries Commissioners have foreshadowed that the decision to allow the Maori Land Court to hear iwi claims to the foreshore and seabed of the Marlborough Sounds opens the way for similar claims around the country" ACT New Zealand Deputy Leader Ken Shirley said today.
"I now call upon Prime Minister Helen Clark to act consistently, and to declare such claims off limits -as she recently did in the case of the claim for oil and gas reserves. In this instance, it was made quite clear that oil, gas and mineral reserves were vested in the Crown by legislation in 1937," Mr Shirley said.
"A parallel situation applies
to the foreshore and seabed. Section 7 of the Territorial Exclusive
Economic Zone Act of 1977 states that the seabed from the landward
side of the low water
along the coast of New Zealand (including the coast of all islands)
and the seaward side the outer limits of the territorial sea (the
12 mile limit) shall be deemed to be, and always to have been,
vested in the Crown.
"Furthermore, the Foreshore and Seabed Empowering and Reinvestment Act of 1991 revests in the Crown all foreshore which had been alienated. Section 5 of this Act expressively states `all of the land to which this Act applies is hereby vested in the Crown as if it had never been alienated from the Crown and free from all subsequent trusts, reservations, restrictions and conditions'.
"If Maori are to claim the foreshore and seabed, then every boat ramp, mooring, anchorage and jetty is up for grabs. In addition, ownership and access to the vast areas of reclaimed land - including various commercial and private buildings, ports, parks and amenities - are thrown into legal confusion and conflict.
"The Marlborough case commenced as attempts by enterprising (top of the South) iwi to muscle into the lucrative shellfish in the Marlborough Sounds. For this to now be extended over the entire foreshore and seabed is an utter nonsense.
"The Government must act decisively. It must spell out the bounds to claims - in order that undue anxiety isn't caused to tens of thousands of New Zealanders on the one hand, and iwi don't waste any more time and money pursuing claims that should be off limits," Mr Shirley said.
ENDS
Press Release by ACT New Zealand 20 June 2003
ACT New Zealand Deputy Leader Ken Shirley today disputed Maori Fisheries Commissioner Maui Solomon's statement that non-Maori have nothing to fear from collective iwi ownership of the foreshore and seabed.
"In his argument, Mr Solomon cited the example of Lake Taupo as a good precedent - yet nothing could be further from the truth. Lake Taupo is an appalling example. In 1993, the National Government transferred ownership of the lakebed to Tuwharetoa, and a specific condition of this ownership transfer was that unfettered public access for recreation purposes and scientific research would remain at no fee," Mr Shirley said.
"In 2001, the Crown Research Institute Geological Survey and Nuclear Science commissioned a mini-submarine - the Jago - to undertake important geothermal research on the bed of this volcanic crater. Tuwharetoa kaumatua blocked this scientific research, demanding exorbitant fees. The research work did not take place, and the submarine sat in its packing case on the wharf for many months before being shipped away.
"I'm equally disturbed by regular reports of recreational fisherman, and others, being intimidated, harassed, abused and assaulted by radical young Maori, who endeavour to deny access to the lake for legitimate recreational purposes.
"We have two Acts of Parliament that clearly vest the foreshore and seabed in the Crown. Section 7 of the Territorial Exclusive Economic Act states that the seabed, from the landward side of the low water along the coast of New Zealand (including the coast of all islands), and the seaward side of the outer limits of the territorial sea (the 12-mile limit) shall be deemed to be, and always to have been, vested in the Crown. Furthermore, the Foreshore and Seabed Empowering Re-investment Act of 1991, re-vests in the Crown all foreshore that has been alienated.
Section 5 of this Act expressively states `all of the land to which this Act applies is hereby vested in the Crown, as if it had never been alienated from the Crown and free from all subsequent trusts, reservations, restrictions and conditions'.
"I am again calling on the Labour Government to act decisively. It must spell out the bounds to claims - in order to prevent undue anxiety for tens of thousands of New Zealanders, and to ensure that iwi don't waste any more time and money pursuing claims that should be off limits," Mr Shirley said.
ENDS
Media Statement by Associate Maori Affairs Minister John Tamihere 20 June 2003
The Appeal Court decision delivered yesterday regarding the Maori claim to the foreshore and seabed is a very narrow decision, Associate Maori Affairs Minister John Tamihere says.
It finds that:
- The Maori Land Court has jurisdiction
to hear applications to foreshore and seabed.
- It may be that any common law right that Maori had prior to
the Treaty may have been extinguished by laws enacted afterwards.
- It will not determine whether the common law right of Maori
has been extinguished. This is a matter to be heard at first instance
by the Maori Land Court.
"Access to and use of the foreshore and seabed is a birthright to be enjoyed by all Kiwis," Mr Tamihere said.
"There may be existing and underlying rights retained by Maori. The nature and status of those rights has not been determined.
Mr Tamihere said that under no circumstances will land held in private hands with rights to the foreshore be open to contest.
"The Government will be considering the implications of the Court of Appeal decision in the national interest."
Press Release by New Zealand Government 20 Jun 2003
Prime Minister Helen Clark and Attorney-General Margaret Wilson said today that the Court of Appeal decision pertaining to the legal status of New Zealand's foreshore and seabed has no immediate practical effect on either the current use or the regulation of the foreshore and seabed.
"The decision is a narrow and technical one relating to the jurisdiction within which claims to the foreshore and seabed may be considered.
"Ownership of the foreshore and seabed has long been considered to lie with the Crown, and the Crown has made provision for regulation of its use in the national interest.
"In a democracy, citizens are free to explore what their legal rights are through the court system. The government respects attempts to explore legal rights through the courts, but also acknowledges that issues of ownership and use affect all New Zealanders.
"The government will be giving consideration to how these issues are best resolved, "Helen Clark and Margaret Wilson said.
On 23 June 2003 the Government announced that it is to legislate to reassert the Crown's ownership of New Zealand's seabed and foreshore after a landmark Court of Appeal ruling on a Maori land claim left the coastline's future ownership in doubt.
The Cabinet decided to clarify the law so it will say what Attorney-General Margaret Wilson said everyone had assumed it said - that the Crown owns the seabed and foreshore for all New Zealanders, with a customary use preserved for Maori.
Ms Wilson said that the decision to legislate meant people should not be worried about getting access to the foreshore and sea -"that in fact the Government does accept that it's almost innate to being a New Zealander that you have the right to the foreshore and to the sea".
Press Release by PANZ 23 June 2003
Government's decisive resolve for legislative action reasserting the Crown's ownership of New Zealand's seabed and foreshore is an important first step, recreational lobby group Public Access New Zealand believes. This issue was a litmus test for Government, but more remains to be done.
The beach and coastal environment is part of the national consciousness, being the most valued and visited outdoor recreation setting in New Zealand, PANZ spokesman Bruce Mason said.
What hasn't been revealed so far is that the public have no lawful rights of recreation over beaches and foreshores despite being owned by the Crown. This is because in law this is private Crown estate, despite a popular presumption that it is held for the benefit of all New Zealanders.
Other than rights of navigation, there are no rights for anyone to walk, bathe, picnic, surf-cast or do anything else at the beach. They are there by mere sufferance of the Crown as owner and could be evicted at any time. The leading case is Blundell v Catterall 1821 (UK) where it was held that the public at common law have no right of bathing in the sea or of crossing the foreshore for that purpose. Blundell's case has been applied in New Zealand. There are no statutory rights of recreation, only controls.
So what most people take as their birthright is illusionary. Decisive legislative action is needed to assure the public that this and future governments will not be able to deny that right.
Government should create statutory rights of foot and bathing recreation over beaches and foreshores. PANZ believes that restrictions or prohibitions to recreation should be confined to special nature reserves, port and defence areas.
References
Blundell v. Catterall [1814-23] All E.R. Rep. 39.
Crawford v Lecren (1868) 1 N.Z.C.A. 117.
King, A P. 1968. The Foreshore; Have the public any rights over
it? NZ Law Journal (1968) 254.
Press Release by Public Access New Zealand 31 Jul 2003
A false sense of security could arise from Waitangi Fisheries Commission chairman Shane Jones' comment that Maori need to accept public access to the foreshore and seabed as a non-negotiable issue, according to recreational lobby group Public Access New Zealand (PANZ).
PANZ spokesman Bruce Mason says that years of experience with public access mechanisms over private land indicate that, as secure as such arrangements may appear on paper, they are only as good as the current landowner wishes them to be.
Public rights of access via covenants, and easements such as Walkways, are regularly closed by landowners. The worst aspect is that official agencies such as the Department of Conservation and local authorities will run a mile to avoid enforcing public rights. They are more concerned about their relationship with landowners than they are with the public. This leaves the public with no remedies when access is denied.
Lack of official advocacy for the public will inevitably worsen as officials are increasingly required by Government to be more responsive to Maori.
Despite having no proven entitlement, indications are that Government is set to pass some form of ownership of the foreshore over to Maori, while claiming to guarantee public access. This is a continuation of discredited new right ideology that believes that public ownership of land is unnecessary to achieve public purposes including recreation. This is a fallacy, according to Mason.
Even National's Nick Smith while championing the retention of Crown ownership, sees this as only necessary to protect commercial interests and not to ensure public access. Mr. Smith claims that public access can be guaranteed without Crown ownership. If the model he has in mind is the same as used by the last National government the public has a lot to be concerned about.
Denis Marshall privatised the bed of Lake Taupo, with statutory rights of access reserved to the public. However PANZ regularly gets reports of members of the public being abused, harassed or assaulted by young Maori. Nick Smith gave away Mt Hikurangi and PANZ had to take him to court to try and get supposedly guaranteed access provisions along a Walkway honoured.
The reality is that, as Mr. Smith observes, if Maori are given title it will only be a matter of time before they want to exercise all the powers that go with that. "This is no different from any other private landowner", Mason observed.
"For the Government to
go down a privatisation course would be in grave breach of Helen
Clark's undertaking that Crown title would be retained. Crown
ownership provides the only guarantee for public recreational
use of beaches and foreshore", Mason concluded.
Press Release by Public Access New Zealand 7 August 2003
Government appears to be trying to undermine the public's rights of access to the coast. However their spin doesn't stack up, according to Public Access New Zealand (PANZ).
Land Information Minister John Tamihere has claimed that over half the coastline is in private hands* but yesterday, in response to a parliamentary question specifically concerning the foreshore**, he stated that the figure is closer to one-third. However these figures are in fact for land ownership on dry land, and not over the foreshore as he implies. According to Department of Conservation advice to a parliamentary committee***, the extent of private ownership of the foreshore is less than one per cent.
Mr. Tamihere is on record as knowing that the foreshore is between high and low tide****. His reply to the parliamentary question therefore appears to be an attempt to mislead Parliament and the public of New Zealand, according to PANZ spokesman Bruce Mason.
The government spin is to the effect that "New Zealander's will be surprised to learn how little access rights they now have". This appears to be a ploy to deceive the public and to soften them up to accepting far less than the customary use of the foreshore that they rightly regard as their birthright.
The recent Court of Appeal decision that gave rise to Government's sudden interest in this issue was confined to the foreshore and seabed. It had nothing to do with the dry lands above. Improvement of access TO the foreshore can be, and should be, dealt with separately by Government. In this regard they have an obligation to the electorate to honour their election promise to extend the Queen's chain, Mr. Mason said.
If the ownership of adjoining dry land is really such a pressing obstacle to resolution of the foreshore issue as the Government now portrays, their own statistics fail them.
So what if one-third of adjoining dry land is privately owned? Two-thirds is not, and is available for public access along and to the shore mainly through provision of the Queen's chain.
As part of its response to the
Land Access Reference Group's report, Government should concentrate
on improving public access by filling in the gaps in the Queen's
chain and by other measures. They should not use the presence
of private land on-shore as a pretext for possible loss of Crown
ownership of the foreshore and seabed, and for instigating constraints
on public use, Mr. Mason concluded.
* Dominion Post, 29 July 2003
** Response to Parliamentary Question #4, 6 August 2003.
*** DOC Paper to Select Committee, 9 August 1993
**** Dominion Post. 1 July 2003. John Tamihere. Storm brews on
foreshore
Rt Hon Helen Clark
Prime Minister of New Zealand
Hon Dr Michael Cullen
Deputy Prime Minister
Hon Parekura Horomia
Minister of Maori Affairs
18 August 2003
The government today released its proposal for protecting public access and customary rights in the foreshore and seabed, saying it is a 'win-win' solution for all New Zealanders.
The proposal was released by Prime Minister Helen Clark, Deputy Prime Minister Michael Cullen, and Maori Affairs Minister Parekura Horomia. It involves:
1. clarifying legislation to
ensure that the foreshore and seabed are not subject to private
rights of ownership, and
2. the recognition and protection of Maori customary rights.
Helen Clark, Michael Cullen, and Parekura Horomia said the government's proposal recognises that coastal areas are important to all New Zealanders and that everyone must be able to use and enjoy them now and in the future.
"The government's approach is based on four principles:
* Access - The foreshore and
seabed should be public domain, with open access and use for all
New Zealanders.
* Regulation - The Crown is responsible for regulating the use
of the foreshore and seabed, on behalf of all present and future
generations of New Zealanders.
* Protection - Processes should exist to enable the customary
interests of whanau, hapu and iwi in the foreshore and seabed
to be acknowledged, and specific rights to be identified and protected.
* Certainty - There should be certainty for those who use and
administer the foreshore and seabed about the range of rights
that are relevant to their actions.
"This proposal benefits Maori because it ensures the full range of their customary rights, in relation to the foreshore and seabed, including recognition of their mana over or ancestral connection with an area, can be appropriately recognised and protected in law. Whanau, hapu, and iwi will continue to be able to ask the Maori Land Court to investigate claims of customary rights. Protection of customary rights is entirely consistent with continuing access to and use of the beach.
The government is resolving this issue in a principled and practical way, which aims to bring all New Zealanders together.
"This proposal deliberately says nobody owns the foreshore and seabed. The best way to protect the foreshore and seabed from alienation in the future is to ensure that no-one has fee simple title.
"The principles on which the govt has based its proposal run to the heart of our nationhood. The details around how we secure them are being subjected to a sincere consultation process before new legislation is finalised.
"The government wants a win-win outcome for all New Zealanders. We believe that with good will on all sides that outcome can be secured.
The government is seeking comments over the next six weeks, and asks for submissions by Friday 3 October 2003. People will be able to contribute their views by:
* making a written submission
to Foreshore and Seabed Submission, PO Box 55, Wellington.
* making an on line submission
* fax, (04) 473-2508.
* attending a hui or a sector group meeting
* or through your local Member of Parliament.
* You can also obtain further material by telephoning: 0508 Foreshore
or 0508 367 374.
After submissions have been
received and considered the government will finalise decisions
on the overall approach and on the details." the Ministers
said.
Official documentation and a booklet on the proposals can be obtained from -
Please Note: the following headline is misleading. Rather than support Government's "proposals" the meeting broadly supported the "four principles, the consensus view was that "the devil will be in the details". PANZ reserved our position depending on how Government lived up to fulfilling its "principles". Much detail is unknown and the Ministers were unable to answer many of 35 questions submitted to them before the meeting.
The principles, as set out in 'Protecting public access and customary rights: Government Proposals For Consultation", are -
Monday September 15, 2003
MEDIA STATEMENT FROM: Council for Outdoor Recreation, Federated Mountain Clubs of New Zealand, Fish & Game New Zealand, Four Wheel Drive Association, Game and Forest Foundation, Kiwi Association of Sea Kayakers New Zealand, Federation of Freshwater Anglers, New Zealand Recreational Canoeing Association, New Zealand Recreational Fishing Council, New Zealand Deer Stalkers Association, Public Access New Zealand, Royal Forest and Bird Protection Society.
OUTDOOR RECREATIONAL GROUPS SUPPORT IN PRINCIPAL THE GOVERNMENT'S KEY FORESHORE AND SEABED PROPOSALS
The biggest meeting of conservation, outdoor recreation and environment organisations since the Manapouri campaign met in Wellington today.
This meeting was made up of groups representing over a million New Zealanders who participate in outdoor recreations. The Deputy Prime Minister, Michael Cullen, and Associate Minister of Maori Affairs, John Tamihere, and key officials met with the group to provide a briefing on the Government,s proposals and discuss issues.
The 12 organisations agreed to generally support the Government's four principles to solve the foreshore and seabed issue.
"The Ministers listened to our concerns about the poor consultation to date with our sector and they have undertaken to increase their level of consultation with us. The meeting with the Ministers was positive and constructive.
"We worked through the concept of public domain, and made suggestions to the Government that would strengthen the recreation and conservation interest. The Ministers described these suggestions as very helpful, and undertook to study them.
While the group broadly supported the "four principles, the consensus view was that "the devil will be in the details". The group agreed to monitor and closely engage with Government in the development of the policy and procedural detail, which emerges from the Government's consultation process.
The feeling from the group was that it was a very worthwhile exchange of views with a great congruency of opinion, and it had been very successful. It may be followed by further meetings of conservation, outdoor recreation and environment organisations. Participants undertook to work closely together as the foreshore and seabed issue develops.
ENDS
For further information please contact:
Fish & Game New Zealand: Bryce Johnson 04 499 4767, 021 397 897, a/h 04 526 7900
Council for Outdoor Recreation Associations: Hugh Barr 04 934 2244, 025 686 0063
Federated Mountain Clubs of New Zealand John Wilson: w 07 838 5234, a/h 07 853 6464
Four Wheel Drive Association: Andy Cockroft 027 448 2319 w 04 496 7749
Game and Forest Foundation: Garry Ottman, 027 221 8337
Kiwi Association of Sea Kayakers: 025 447 779, 04 570 0232
Federation of Freshwater Anglers: Strato Costilinis, 04 472 7827
New Zealand Recreational Canoeing Association: Polly Miller 027 277 8140, 04 387 4117
Public Access New Zealand: Bruce Mason 025 358 311, 03 447 3554
Forest and Bird: Kevin Hackwell 04 385 7374 w, a/h 04 389 4815
NZ Recreational Fishing Council: Ross Gildon 04 972 5041
NZ Deerstalkers Association: Trevor Dyke 025 476 858, 06 388 0387
12 September 2003
Foreshore and Seabed:
Questions for Government from Public Access New Zealand and the
Council of Outdoor Recreation Associations
1 Public Domain:
1.1 How will "Public Domain" (PD) be defined? How will
it differ from Crown "vesting" as at present under the
Foreshore and Seabed Endowment Revesting Act?
1.2 Will this apply over all
foreshore, not just that currently vested in Crown?
1.3 What extent of the foreshore and seabed is under private title?
1.4 Will the ultimate or radical title of the Crown be extinguished?
1.5 If so, who will guarantee title to any private property interests?
1.6 Who will issue titles?
1.7 Will the Crown be the deemed occupier for trespass/ if not,
who will be?
1.8 How will "public domain" extinguish Maori customary rights, given the Appeal Court said even Crown title, as at present, doesn't extinguish them.
2 Public Rights on the Public Domain:
2.1 What specific public rights will be created over Public Domain
(PD) F&S? Access, foot recreational use, right to fish for
food? What restraints will there be?
2.2 What express statutory form will "open access and use"
take? Confined to statement of principle, or express provisions?
2.3 What recourses will the public have if they are obstructed
or precluded from exercising their rights?
2.4 Will common law rights of navigation and fishing be unaffected?
2.5 Will Blundall v Catterall [1814-23] All E.R. Rep. 39, and
Crawford v Lecren (1968) 1 NZCA 117 be overturned?
3 The Crown's Public Domain Management Rights:
3.1 How will the Crown's management rights over PD differ from
its current management rights over Crown vested F&S?
3.2 Who will administer and manage the Crown's interest?
3.3 What duty of trust, if any, will the managers/administrators
be under?
4 Alienation:
4.1The Crown will need to be able to dispose of F&S that is
public domain, in special circumstances, as it does now. Will
it do this in the same way it does now? Eg revesting Acts, aquaculture
licences to occupy, mining licences. If so, how is the public
interest protected?
4.2 Will disposals revert to
PD when the land is no longer being used for the purpose for which
it was disposed?
4.3 Will jurisdictions other than the Maori Land Court have power
to grant titles and property interests?
4.4 Will these preclude exclusive possession or occupation rights?
4.5 What will preclude title being acquired over the PD through
adverse possession?
QUESTIONS: DEFINING AND RECOGNISING CUSTOMARY RIGHTS
5 Extra Maori Land Court Responsibilities:
5.1 Why is Government proposing the extension of MLC powers, when
such extension is not derived from the Court of Appeal decision?
5.2 Why has Government only excluded the Maori Land Court from
granting exclusive freehold titles?
5.3 Will other titles, including leaseholds, with rights of possession
or occupation be prohibited?
5.4 What would prevent "mana" resulting in the issuing
of occupation or possession rights?
5.5 What would prevent "ancestral association" resulting
in the issuing of occupation or possession rights?
5.6 Will the Trespass Act be amended to prevent application over
possible places of occupation?
5.7Can Government list the Maori customary rights ie ones that
don't include fisheries, shellfish. Why can't they be part of
historic claims? are some as yet undefined like treaty "principles"?
5.8 What will the Crown do with
rights the MLC deems to be equivalent to customary title?
6 Identifying who holds customary use rights:
6.1 Given it is agreed that customary rights are based on ancestry
and uninterrupted exercise of such rights, how are those who enjoy
a customary right to be identified, for the purposes of exercising
that use right? eg by the MLC? If so isn't this extraordinarily
complicated?
6.2 Will the new MLC powers to determine customary rights create
additional customary rights over dry land and rivers, streams,
lakes and their beds
7 Compensation:
How will the Crown deal with customary title compensation claims,
if it extinguishes them.
8 Traditional or Customary rights of non Maori New Zealanders
How are the traditional
or customary rights of non Maori New Zealanders to be recognised?
eg public use of beaches. In what courts?
QUESTIONS: OTHER MATTERS
9 Direct Aquaculture Negotiations:
Why doesn't the Government negotiate directly with Marlborough
Sounds iwi re aquaculture, access etc, given aquaculture seems
to be the key issue. Wouldn't a negotiated agreement be easier
to implement than the radical changes nationally?
10 Beds of Lakes and Rivers:
The Court of Appeal could see no distinction between the beds
of lakes and rivers, and foreshore. What is the Crown planning
to do about protecting the public interest in Crown-owned river
and lake beds?
Government Response: 15 September 2003
PANZ comment within [square brackets]
General comment
The government has published
a proposal that sets out basic principles and a broad framework
for moving forwards based on those principles. It is consulting
at that broad level before proceeding to develop detailed proposals
for legislative change.
A number of the questions that this group and others are asking relate more to the detail of how some of the concepts in the proposals would be translated into legislation. Many of these issues have not been decided yet, but are being considered by offficials as the policy process continues.
1. Public domain
1.1 The current statutory provisions vest ownership of the foreshore and seabed in the Crown, subject to other grants of title and rights. The Court of Appeal has clarified that that qualification includes customary rights that may yet be proved. The basic proposal that the government has put forward is to depart from the concept of "ownership" or "title" altogether. It considers that there is no legal need for the seabed to be owned. It could be open and communal space, which it has described with the phrase "public domain". The same concept is captured in the term "public commons".
The Crown, through the exercise of its separate regulatory powers, would then establish regimes to authorise particular uses or activities which required control (eg mining or marine farming). As now, many other activities would continue as unregulated public freedoms or privileges (eg swimming and walking).
This approach would entail revisiting the vesting provisions in current legislation. There is no firm view at this stage on the form of any replacement provisions.
1.2 The concept of public domain could not be applied to land that was already in a private Land Transfer Act title, as that would involve overriding existing and specific legal rights. The government proposals raise options for how the issue of existing private titles might start to be addressed in order to promote public access.
1.3 There has been some debate about the amount of coastline, foreshore and seabed already in private title. LINZ are currently engaged in a project to try to provide more reliable information.
1.4 The question of "radical title" is a technical legal issue, that will be resolved in the detailed legal and drafting work.
1.5 The proposals do not have any effect on the normal guarantees of title provided by the Land Transfer Act and associated systems, if people already hold titles under that system.
1.6 No further private titles in the foreshore or seabed would be issued, if the government's proposals become law.
1.7 The concept of trespass
follows from the right of a private property owner to exclude
others. If a space is not owned, there is no right to exclude
others and the concept of trespass does not come into play.
[Wrong: trespass depends on occupier status independent of ownership:
ss 2, 3, 4 Trespass Act 1980].
1.8 The Court of Appeal said that no statute had ever explicitly extinguished Maori customary rights that may exist. All existing general vesting provisions are sufficiently qualified, in terms of general protection of pre-existing titles or rights, that they could not be read as excluding the possibility of Maori customary rights still existing. The Crown's proposals would make clear that those rights, if demonstrated, could not be translated into a Land Transfer Act title. A key part of the current discussion is how any existing customary rights should be recognised and protected.
[Michael Cullen during meeting:
"Haven't considered implications of new property rights"]
2. Public rights on the public
domain
Maintaining the ability of all New Zealanders to enjoy access
and use of the foreshore and seabed is one of the government's
basic principles. Whether those current freedoms would need to
be specified as detailed rights in the legislation is a question
yet to be addressed. There is no intention to disturb existing
general rights of fishing, navigation or passage.
3 The Crown's public domain
management rights
The Crown's role of regulating a wide range of conduct and
activity across society continues, irrespective of whether there
is private or Crown title over a particular space. Existing responsibilities
within government would not be expected to change as a result
of these proposals.
[Michael Cullen during meeting:
"Crown responsible for 'framework' of management. Government
considering district councils or new structures rather than regional
councils. But also considering co-management or total devolution"(to
iwi/hapu)].
4 Alienation
In the past Parliament has legislated to create private titles
over the foreshore and seabed for public purposes, such as the
establishment of a port. If the public domain concept replaced
the notion of Crown ownership, it is possible that future legislative
authorisations of control over a particular space might take a
different and less permanent or complete form. This is a consequential
issue yet to be worked through.
Parliament also legislates to create systems for authorising particular activities such as mining or aquaculture. These systems often provide for the creation of fixed term permits which carry particular rights. Those systems are not inconsistent with an underlying concept of public domain.
Sometimes the activity being authorised will require exclusive possession of the space for the period of the activity, eg for reasons of safety. But, as with the RMA now, a presumption in favour of public access where possible could be expected to operate.
[Michael Cullen during meeting:
Re dealing with limited private titles
1. "either by negotiated access, or
2. preferably buy out"]
[Michael Cullen during meeting:
"No further private titles issued" however also "exclusion
by other property rights not necessarily precluded"].
5. Extra Maori Land Court
responsibilities
The Maori Land Court operates under a statutory regime that
gives it the power to direct the issue of a Land Transfer Act
title. The Court of Appeal decision concluded that this power
could be applied to the foreshore and seabed. The government does
not think this consequence is acceptable, and so it is proposing
to give the Court different tools for the recognition of Maori
customary interests in the foreshore and seabed. No other Court
has similar statutory powers.
The recognition of mana, or ancestral association, or other customary use rights, and the legal consequences of that recognition, would all be governed by statute. Given that one of the goals of the proposals is to protect public access, it is unlikely that the legal consequences of that recognition would include a right to exclude others from parts of the foreshore or seabed.
One of the questions that the government has asked is for people to provide examples of customary rights that might still exist other than those already recognised and protected in law. Rights that still exist are not covered by the settlement of historical claims, as that process is concerned with claims of Treaty breaches that may have occurred prior to 1992. By definition, if the rights still exist they have not been lost through some past Treaty breach.
[Michael Cullen during meeting:
"Very unlikely many cases going to result in occupation"
(rights)]
Other issues
The answers to your
remaining questions on the meaning of the term "customary
rights" and the consequences of recognition of such rights
are all covered in the discussion in the published proposals.
It needs to be recognised that, internationally, the term "customary
rights" is used to describe the traditional rights of indigenous
peoples, rather than general rights that the public might be thought
to hold.
The government's proposals at this stage relate only to the foreshore and seabed. Rivers and lake-beds are not intended to be covered by the current proposals.
Aquaculture is also proceeding on a separate but parallel track".
[Michael Cullen during meeting:
Acknowledged customary rights are being expanded (from customary
rights to customary 'interests'). "Will be rank ordering
of interests - customary rights will prevail over 'traditional'
rights", meaning public traditional uses).
"Beefing up effectiveness
of existing legislation (eg ancestral connection) so that greater
recognition of Maori interests"]
END
PANZ guide to submission-making (pdf 4k) (due 3 October)