This page created 9 July 2003 / last modified 3 September 2003
Otago Daily Times
Monday, 7-July 2003
" It will be a profound shock to most people to learn that they have no rights of recreation over foreshores . . ."
What most people take as their birthright - the freedom to use our beaches - is extremely fragile, writes researcher BRUCE MASON in this first of two articles, particularly so when the Government, under immense pressure from one element of its electoral support, is left to define what those public rights are. Is the price of political accommodation to be the creation of a form of Maori "title" over all the seabed and foreshore, despite no customary rights being known to exist?
RARELY, except in matters of imminent national insecurity, do governments act as decisively as the recent prime ministerial response to the Court of Appeal's landmark decision of 19 June on foreshore and the seabed.
For the first time the courts threw into doubt the Crown's long-assumed ownership of the seabed, and foreshore - the zone between high and low water marks, popularly known as "the beach". That decision threatens to throw open a Pandora's box of electoral horrors: Maori claims to exclusive ownership and thereby control or prohibition of every New Zealander's assumed right to fish, sail, walk, bathe, or kick a football around on the beach, anywhere, any time, for free.
Exclusive private ownership of most rivers, lakes and beaches is the norm in many countries with "keep out" signs on fenced enclosures. However, it is not the case here and this is what distinguishes New Zealand from more history-bound and privilege ridden societies. Freedom to roam and enjoy our wet commons is a deeply ingrained part of the national psyche. So too is the notion of freedom of access along most shorelines, and many river and lake banks.
There are express statutory requirements requiring the Crown and local authorities to reserve and keep in public ownership strips of land above the high water mark of the sea so as to permit public access to the adjoining waters. The "Queen's Chain" is a much-cherished aspect of New Zealand life. It exists solely on the premise that the adjoining water body is freely available for public recreational use.
Application of the Court of Appeal's decision could lead to the abomination of riparian apartheid, with the greater populous confined to narrow fenced-off strips of dry public land to watch a favoured few customary right holders, invitees, and payees enjoying exclusive benefit of privatised beaches, tidal waters and the sea. It would not be just non-Maori that would have no rights. It would be all outsiders of the hapu or other group holding customary rights, including Maori from elsewhere.
The potential for electoral backlash is enormous if exclusion from beaches were to eventuate. Perhaps the Government did not immediately appreciate this, as the day after the judgement was delivered it expressed the view that "the decision is a narrow and technical one and has no immediate practical effect on either the current use or the regulation of the foreshore and seabed". However, by June 23, the Government felt so compelled to signal its authority as the highest court in the land that it announced an intention to legislate to reassert the Crown's ownership of the seabed and foreshore, with customary use (not "title") preserved for Maori.
What did the Court of Appeal decide? There were eight questions before the court. It declined to answer seven concerning the existence of customary title because, in the absence of facts relating to particular situations, any answers would be abstract and "so heavily qualified as to be unhelpful and perhaps misleading".
On a question of what is the Maori Land Court's jurisdiction to "determine the status of foreshore or seabed and the waters related thereto?", the court determined that the Land Court does have jurisdiction to make such determinations concerning foreshore and seabed, but did not answer in relation to "waters". The court cautioned that "the significance of the determinations this court is asked to make should not be exaggerated. The outcome of the appeal cannot establish that there is Maori customary land below high water mark".
The landmark nature of the decision arises from the court's determination that Crown assumptions that custom is displaced by a change in sovereignty, or because the sea was used as a boundary for individual titles on the shore, to be wrong in law. The court is of the view that pre-1840 Maori customary rights became part of our common law; that no statutes have expressly extinguished such rights, and the courts got it wrong in the past. Past assumptions equating Crown sovereignty with property ownership, and assumptions of Crown ownership through the provisions of Territorial Sea and Foreshore and Seabed Revesting Acts, have been turned on their heads. The court has commented that any legislative fix would need to make Parliament's intention "crystal clear". That, presumably, is now the Government's intent.
The consequence of this decision is that, unless prevented from doing so by the Privy Council or Parliament, the Land Court can determine that particular areas of foreshore and seabed have the status of "Maori customary land". If so determined this creates what is commonly referred to a "customary title", in the sense of customary ownership rather than a guaranteed, exclusive "title" from the Crown. The latter, in the form of a "certificate of title", is a transferable private property interest. While remaining as customary land it remains incapable of disposition to individuals. However, the Land Court has further powers to convert customary land to Maori freehold title, with named individual owners.
It was such a result that the appellants sought and this remains open for the land court to determine, notwithstanding the Court of Appeal's unwillingness to form a view about "title". The prospect of Maori and ultimately general freehold title over seabed and foreshore undoubtedly had a significant role in Government's response to the Court of Appeal's decision.
What are the public's rights of recreation? It will be a profound shock to most people to learn that they have no rights of recreation over foreshore, including beaches. Historically, the Crown has been presumed to be the owner of such, as if "the Crown" were a private entity. Despite "the Crown" these days being "the people embodied through the institution of Parliament", foreshore and seabed are not held by governments under a duty of trust for public benefit.
Except for common law rights of navigation and associated fishing over and from the water, there are no general rights of recreation on beaches, such as bathing, surf-casting, walking, or even kiddies building sandcastles. All use is by mere sufferance of the Crown. There are plenty of statutes and regulations controlling public activities, but none granting rights of recreation.
What legally constrains public use and enjoyment of foreshore is English common law. The leading case is Blundell v Catterall (1821), where it was held that the public at common law has no right of bathing in the sea or of crossing the foreshore for that purpose. Blundell's case has been applied here; there are no overriding court decisions or statutes in New Zealand.
The Crown's centuries-old benevolence towards public recreation over beaches has worked to date because, up until 19 June 2003, there was no question of uncertain Crown ownership and benevolence. Since the transfer of sovereign power to a democratically appointed legislature, there has been no perceived peril to continuing public access and recreation.
Such perceptions have been reinforced by what now appear to be inadequate acts of Parliament, with the intention of revesting and retaining Crown ownership of our wet commons.
The events of 19 June have changed all that. So what most people take as their birthright is extremely fragile, particularly so when the Government, under immense pressure from one element of its electoral support, is left to define what those public rights are. There have been repeated assurances from the Government that it will consult Maori over their assumed customary rights - but no moves for consulting the wider populace.
The National opposition has fairly asked the question what it is that the Government is "negotiating" with Maori, when the courts have not ruled that Maori have any customary rights or title to the seabed or foreshore. Is the price of political accommodation to be the creation of a form of Maori "title" over all seabed and foreshore, despite no customary rights being known to exist? There are strong indications of this by erroneous assertions from the associate Maori Affairs Minister, Tariana Turia, and other Maori MPs - that customary rights are derived from customary title. This is not what the Court of Appeal said or found.
Is the price of Government's haste in this matter to be loss of freedom for public access and enjoyment for all New Zealanders? Attorney-General Margaret Wilson assured the nation 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".
Ms Wilson advises that officials are already working on the precise nature of customary use; "it's a balancing of interests, we believe both can co-exist". If interests are being balanced, who is defining the other half of the equation, and will the public have opportunity to express to the Government what their aspirations are? The haste and one-dimensional nature of consultations indicates not.
Contrary to the Government's espoused position of June 23, Ms Wilson has subsequently stated that Maori would still be able to pursue whether they had a customary title through the land court, and what that means in practice, "but it was hypothetical whether that could be an exclusionary title".
One of the Government's principles for resolving foreshore and seabed issues is "to protect Maori customary rights, to the extent they are not already". There is no such assurance for public customary rights. Given that there are no existing common or statutory law rights of recreation, the public could end up with only constrained privileges, and be expected to show gratitude for any benevolence exhibited by new owners or co-owners of the seashore.
Otago Daily Times
Tuesday, July 8, 2003
Political accommodations and ill-defined "principles of the treaty" are readily permitted to override matters of law, fact and ultimately the public interest, writes researcher BRUCE MASON in this second part of his commentary on the foreshore and seabed claim. In the Government's haste to get rid of a very hot political potato, the same fate may be in store for our beaches.
VARIOUS commentators claim that is no Maori intention to close off public access if ownership of foreshore and seabeds were in Maori ownership. There have not been similar assurances that the public will not have to pay for access.
Any private owner of land can charge whatever he or she chooses, unless there is an express enforceable stipulation that access, if permitted, is free. Many private owners, irrespective of race or iwi affiliation, do charge for access. Demands for $150 to climb Mt Tarawera or $10 to land on the beach of Mayor Island if not a member of the local iwi give rise to skepticism about any assurances that this would not happen if ownership or control of foreshore is vested in Maori. In contrast, entry by payment could not arise on public lands.
The argument that formal provision can be made for public access is reinforced by pointing out that easements or covenants guaranteeing public access can be put in place. No doubt the government will be looking at such options for foreshore that, on paper at least, provide for public needs.
However, experience indicates that such mechanisms are only as effective as the landowners wish them to be. There is a singular lack of official will to enforce public rights when these are denied. Unlike for public reserves and public roads, there are no remedies available for aggrieved members of the public when access is barred.
In 1992, the National government negotiated the transfer of the bed of Lake Taupo to the Tuwharetoa Maori Trust Board to be held "in trust for the common use and benefit of all the peoples of New Zealand". The public is to have freedom of entry and access for recreational use and enjoyment, research and associated activities, with access free of charge. There is also a chain-wide right-of-way around the margins of the lake.
However, there are regular reports of denial of access to anglers and Act New Zealand member of Parliament Ken Shirley reported that in 2001, when a Crown Research Institute wanted to undertake geothermal research on the lakebed, the iwi demanded such exorbitant fees that access was effectively blocked. As a result, important monitoring of the bed of this lake crater failed to take place.
Mr Shirley also reported recreational fishermen and others, have been intimidated, harassed, abused and assaulted by radical young Maori, who endeavor to deny access to the lake for legitimate recreational purposes.
Public Access New Zealand regularly receives such reports. A joint government and Tuwharetoa board of management for the lake does not, apparently, inhibit breaches of public rights.
This 1992 agreement was to rectify a claimed grievance by Ngati Tuwharetoa that in an 1926 agreement it was not intended that vesting title of the lakebed in the Crown be part of the agreement. This is despite a clause in that agreement, signed by the Paramount Chief, recording that "the beds of all Taupo waters shall be vested in the King as a public reserve". However, in 1992 such explicit provision was overridden in a "spirit of partnership", in accordance with the Treaty of Waitangi "as now understood".
The present Government has offered ownership of the beds of 14 Rotorua lakebeds to Te Awara. Negotiations continue. This offer is despite the ownership of the beds being vested in the Crown as a result of a negotiated settlement between the Crown and Te Arawa in 1922. The consequent legislation deemed the Crown to own the 14 lakes free of any customary title, and the Te Arawa Maori Trust Board began to receive a fixed annuity of 6,000 pounds from the Crown. Since the 1922 agreement, the annuity has been increased to $18,000 per year.
The same issues relating to the coastal foreshore and seabed exist with respect to these lakes. They are all used extensively by the public for recreational pursuits.
It is proposed that the Rotorua lakebeds will be administered under the Reserves Act and the Crown will seek the agreement of the Rotorua District Council to take responsibility for the day to day administration of 12 lakes. The Eastern Fish and Council will administer the remaining two lakes in consultation with the Te Arawa Maori Trust Board on management issues and existing and proposed bylaws.
The Government has stated that transfer of the title of the lakebeds will be "subject to the preservation of the rights of existing users - public, commercial and any other third parties". However the local authority appears not to be privy to the terms of access the Government has in mind. There are local concerns that lake users will in future be charged for access.
In all these cases, the absence of evidence of proof of Maori ownership is apparently no barrier to the Crown willingly relinquishing it's ownership.
These cases closely parallel the current issue of ownership and control of the seabed and foreshore. Political accommodations and ill-defined "principles of the Treaty" are readily permitted to override matters of law, fact, and ultimately the public interest. In the Government's current haste to get rid of a very hot political potato, the same fate may be in store for New Zealand's foreshore and seabed.
To give proper effect to an almost universal public expectation that the sea and its shores are and should remain the common property of all, Public Access New Zealand believes that Crown ownership must be unambiguously reaffirmed through legislation. This should be held by Government under a duty of trust for the benefit, use and enjoyment of all New Zealanders.
Statutory rights of foot and bathing recreation should be created over all beaches and foreshore, with restrictions or prohibitions confined to special nature reserves, port and defence areas. Where customary rights are proven to exist on a case by case basis, these must not lead to exclusive possession of land or water. The Te Ture Maori Act 1993 must be amended to prevent the issuing of Maori freehold title over seabed and foreshore.
Anything less is likely to be viewed by a very large body of the electorate as a grievous breach of Labour's promise to the electorate at the last election "to ensure that New Zealanders have ready and free access to our waterways, coastline, and natural areas".
END
Bruce Mason is Researcher and Co-Spokesman for Public Access New Zealand
Public debate on the meaning and implications of "public domain" is needed, writes BRUCE MASON, especially given the short time frame the Government has allowed for consultation. The most worrying aspect of the Government's political fix for the foreshore and seabed controversy is its renouncement of the institution of the Crown.
THE Government proposes to legislate so that the foreshore and the seabed become "public domain" with a stated aim that all will be able to enjoy "open access and use". However, the "public domain" would not be public property, as the Government now believes that no-one should own it, including the Crown.
This is claimed not to be a new concept, as it has been a long-standing policy of successive governments that the foreshore and seabed should not be in private hands. The Government omits to say in this context that it has also been a long-standing policy that it should be Crown-owned.
The terms "public domain" and "open access and use" have not been defined, causing ambiguity and confusion as to what this will mean for the public.
An Internet search of all current New Zealand legislation came up with 160 hits for "public domain". Three of these relate to either technology or knowledge being "in the public domain". These clearly bear no relevance to Government's new concept.
One hundred and fifty-seven hits identified "public domains", the ownership of which is vested in territorial local government. Nowadays, most are officially called recreation reserves, although many are still known locally as domains. The day-to-day management of these reserves depends on "the Crown" or local authorities being vested with ownership. That ownership is in trust for the people.
The Reserves Act specifies how such domains are to be administered. The "owners" can be held accountable through the courts and politically for their management. This is how our national parks and conservation areas are also managed. Domains cannot be disposed of willy-nilly; special Acts of Parliament are necessary.
The concept of "public domain" without Crown ownership is a novel approach but without any precedent of workability. Whoever ends up with a management role will inevitably assume control and effective ownership.
The concept is driven primarily by political considerations. As the Government says, this is "to avoid divisive and unsettling discussion about who `owns' which parts of the foreshore and what rights those owners might have". However, delegating to the Maori Land Court the granting of use rights, as is now proposed, will leave future governments to deal with a potentially more divisive aftermath.
The Government claims that it is not meaningful, in anybody's culture, to say that a person owns parts of the ocean, in the same way as people own a car or a house. But it is not the ocean that is at issue. It is the bed of the ocean that is under claim of private ownership. Natural water is incapable of ownership by anyone. It is a fluid, like the air we breathe.
Natural water evaporates, flows with the tides and currents, drains away and is replenished. The only water that is capable of possession is that confined within a receptacle. Containment within defined boundaries is essential before anyone can claim to have possession. Possession is the root of ownership and title.
The bed of the sea and the foreshore are not fluids. They are land, be it wet land, capable of human possession through establishing boundaries and assertion of occupation or exclusive use. The existence of fences over beaches and into the surf on many European beaches clearly demonstrates humans fulfilling territorial instincts over foreshore. The occupiers possess these and they decide which, if any, and at what price, non-owners may be invited to share in the primeval wonders of surf and sand.
Offshore, it is more difficult to fence out private estates. However, the rapid growth in marine farms anchored to the seabed shows that new technology is permitting the permanent occupation of coastal space that was thought impossible a decade or so ago.
As further justification for its foreshore and seabed "no-one-can-own" proposition, the Government states that the deep ocean floor, beyond the continental shelf, is incapable of ownership by anyone - a position reflected by international law. But that is hardly comparable to shallow coastal waters and foreshore subject to exposure with the ebb of the tides.
Perhaps the most worrying aspect of the Government's political fix for the foreshore and seabed controversy is its renouncement of the institution of the Crown. The Crown has been personified as an individual, just like the owner of a car or other chattel. Today, the Crown is not an individual in the form of a sovereign living in England, but the collective expression of all of the people of New Zealand, as represented by a democratically elected House of Representatives.
Just because some deluded New Zealanders see themselves or others as separate from the Crown, or as "partners" with the Crown (how can the Crown be in partnership with itself?), is hardly justification for overturning fundamental democratic principles. Where the new proposition could lead has no bounds.
If the Crown is not to own the foreshore and seabed, others will quickly fill the void. As the Government says, these are open spaces that should be shared and used by us all. However, just by declaring that these watery spaces is "public domain" and that there is "open access and use" does not make it so. An absence of Crown ownership and of responsibilities to manage these areas as a trustee for everyone creates a strong likelihood that public access and use will become an increasingly confined privilege.
While the Government has excluded the possibility of freehold title being created for "customary" purposes, other forms of title and ownership can have the same effect. Leaseholds normally convey exclusive possession for their term. Some licences can do the same. Anyone in lawful occupation of a place is entitled to invoke the Trespass Act.
The notion that Crown ownership is unnecessary to protect public access and use (a theme also emerging in Rural Affairs Minister Jim Sutton's Access Reference Group's report) is more about political expediency than reality.
Currently, other than rights of navigation and fishing from boats, there are no rights of public recreation over foreshores and seabed. In fact, it is in breach of the law to walk or bathe below the high tide mark (public use above high water depends on whether or not public reserves, the Queen's chain, exist).
English common law, inherited by New Zealand, makes it a prosecutable offence to use a beach without the express consent of the Crown as owner. However, how many people have ever been evicted from a Crown-owned beach? Similarly from other unoccupied Crown land? On the latter, public recreation continues unabated, despite this being a trespass under the Land Act.
The unwritten presumptions of public entitlement to enjoy the beach are so strong and embedded in our culture that such use has effectively defied the law. The use is founded entirely on public ownership via the Crown. The old adage about possession being nine-tenths of the law is well demonstrated on the foreshore and seabed. If the owner is a benevolent one, as a democratic and accountable Crown has to be, all other law, good or bad, becomes subservient.
If there is a renouncement of Crown ownership, others will fill the vacuum using an enlarged Maori Land Court to create property interests where none currently exist. Provision for "open access and use" (note, not "guaranteed access") will progressively become subservient to the interests of those holding special rights, notwithstanding statutory rights to the contrary.
The scope for judicial activism in determining what customary interests there are in the foreshore and seabed is likely to be immense. The court will be required to recognise "mana" over and "ancestral association" with particular places in the foreshore and seabed, in addition to specific "customary use" rights. Most people could accept the latter, if well founded.
However "mana" (authority, influence, prestige) may only be able to be recognised through assertion of control or exclusion of others. "Ancestral associations" will be able to apply everywhere, and is certain to be argued if claims for specific use rights based on "custom" fail.
Future governments will be either forced to accept the court's determinations or intervene with overriding legislation each and every time a decision exceeds undefined limits of acceptability. How likely is this? The speed with which claims were lodged with the Maori Land Court after the Court of Appeal's decision on June 19 indicates that a new rush of claims will quickly overwhelm an un-owned public domain.
Crown ownership in perpetuity, with an overriding duty of trusteeship for public purposes including recreation, can provide the only security for the public interest.
END
Bruce Mason is a researcher for Public Access New Zealand Inc and a former reserves ranger for the Department of Lands and Survey.
First published in the Otago
Daily Times, under heading " `Un-owned' foreshore open to
claims"
Monday, September 1, 2003
Stephen Franks
MP
Wed, 27 Aug 2003
Were you as baffled as me to hear that seabed and foreshore will become "public domain". Does that mean everybody owns it, or nobody owns it? As political rhetoric it lets Ministers claim that denying Maori a registered title to customary use areas would not be discrimination because nobody, including the Crown, will be allowed to own seabed and foreshore. But what else does it do?
Some dictionary definitions of "public domain" support the suspicion that this is merely semantics, just a strategy to confuse the natives.
Black's Law Dictionary, 6th ed., 1990 Public domain. Land and water in possession of and owned by the United States and the states individually, as distinguished from lands privately owned by individuals or corporations. See also Public lands. Westlaw cites McKenna v. Wallis, 200F Supp 468 "Public domain land is land owned by United States by virtue of its sovereignty."
Copyright law supports the "nobody owns it" theory. Butterworths NZ Law Dictionary, 5th ed., 2001 public domain In copyright law, the status of material which is not protected by copyright. Black's says "Public ownership status of writings, documents, or publications that are not protected by copyrights.
Some land cases may give the difference more significance. Westlaw cites Wallis v. Pan Am. Petroleum Corp., 86 S.Ct. 1301 "Public domain lands are those which usually were never in state or private ownership."
The US Supreme Court in Newhall v. Sanger (1875) 92 U.S. 761 considered whether a land claim which predated the Mexican cession of California to the US excluded land from "public lands" granted to Western Pacific Railroad. Land subject to claim was excluded from "public domain" in another relevant statute. In that statute in context "public domain" was equivalent to our term "Crown land". The Court considered an alternative meaning of "domain".
"It may be said that the whole of California was part of our domain, as we acquired it by treaty, and exercise dominion over it. The obvious answer to all inferences from these acknowledged fact, so far as they relate to this case, is, that the title to so much of the soil as was vested in individual proprietorship did not pass to the United States. It took the remaining lands subject to all the equitable rights of private property therein which existed at the time of the transfer. Claims, where they are grounded upon an inchoate or a perfected title, were to be ascertained and adequately protected. This duty, enjoined by a sense of natural justice and by treaty obligations, could only be discharged by prohibiting intrusion upon the claimed lands until an opportunity was afforded the parties in interest for a judicial hearing and determination. It was to be expected that unfounded and fraudulent claims would be presented for confirmation. There was, in the opinion of Congress, no motive separating them from those which were valid without investigation by a competent tribunal and our legislation was so shaped that no [adverse] title could be initiated under the law of the United States to lands covered by a Spanish or Mexican claim, until it was barred by lapse of time or rejected."
This suggests that "public domain" may not prevail over claims, provided sovereignty is not challenged. Renouncing Crown ownership leaves a genuine, not just rhetorical, legal vacuum.
So perhaps the plot is deeper. Perhaps the term "public domain" is designed to confuse the dumb pakeha more than the dumb native. Public domain may be more facilitative than Crown 'ownership' to the creation of Maori privileges. It could become a cunning barrier to Crown objections to any Maori Land Court creation of Maori interests even if they happen to seem close to ownership. Labour has said nothing to preclude privileged use and enjoyment and even indirect forms of transferability, despite the stated intention to forbid alienation.
Our foreshore and seabed cry out for the simplicity of ownership. By what right will the Crown take minerals on the sea floor, for example? Who gets the rents for rationing scarce space? Will DOC have to plaster its coastline in regulations to control users, and to authorise licence and concession fees? Simple ownership would answer most of these needs.
For the sake of being able to pretend Maori can't get a property interest because no one else can, the seabed and foreshore will be coated in a legal ooze of Clayton's titles - like the devices used in interest control days to pretend that loans weren't loans, and interest wasn't interest, dressing it up instead as profits, rents or anything else handy.
This newsletter goes mostly to lawyers. I would be glad to be kept informed as you delve in to these issues (but please forgive me if I don't respond to you personally). When the government favours the country with draft legislation I'll post it on our website.
In the meantime - rejoice! All around our coast there will be legal work, breeding ownership ducks. Legal bundles of rights and powers that look like chooks but walk, paddle, and quack like ducks.
END