This page created 30 September 2003 / last amended 4 October 2003
The following principles were presented by PANZ to Hon Michael Cullen Deputy PM, Hon John Tamihere Associate Minister of Maori Affairs, and Pete Hodgson Minister of Fisheries in meetings in Wellington and Dunedin on 15 and 25 September 2003 respectively.
The principles build on existing provisions in the Foreshore and Seabed Endowment Revesting Act 1991, and on Government's announced principles of access, regulation, protection, and certainty for dealing with the foreshore and seabed issue.
If the government is serious about a "public domain" it will need to adopt the essential elements of the following. Otherwise, Crown ownership and control is the only proven means of protecting the public interest.
The public domain should be
-
All lands of the Crown revested in the Crown by the Foreshore
and Seabed Endowment Revesting Act 1991 and other foreshore and
seabed previously presumed to be land of the Crown, and Crown
land, except that set aside for any public purpose. Land
held under private title should also be excluded, however -
There shall be continued revesting in public domain of foreshore and seabed as lawfully acquired from private title, on unlawful reclamation, and on land use change contrary to or on expiration of existing authorised consents.
Explanation:
1. There cannot be open access everywhere. For instance many islands
are nature sanctuaries and reserves where landing and passage
along the foreshore must be prohibited. There are special status
public lands such as maritime and national parks, and marine reserves,
that contain foreshore and seabed. Deeming currently protected
areas to be "public domain" would presumably extinguish
existing statutory protections, and public rights where such exist.
There are also operational ports and defence areas where as-of-right
public access must be prohibited.
2. Private title is generally assumed to be very limited in extent. Long-standing government practice has been to progressively revest this in the Crown. This process should continue rather than legislate a generic deeming of all such lands to be "public domain", while leaving in private ownership. Deeming private title "public domain" would not necessarily result in practical or secure public access. Case by case assessment is necessary.
Principles necessary for making the Foreshore and Seabed truly Public Domain-
Explanation:
1. While in theory a public domain could operate without "ownership"
by anyone, the concept would be directly undermined if de facto
ownership were created by vesting control over "the domain"
in private entities. This will be the telling test of Government's
commitment to a truly "public domain". The reality
is that who has control has effective ownership: eg. some Maori,
unable to claim freehold title, want "ownership through
control" - as reported from Wellington hui 25 September.
2. Dedicating the foreshore a public 'highway' would activate citizen common law remedies against obstruction and obstructers. Such a measure is unnecessary over seabed as there are already common law rights of navigation and anchorage.
3 October 2003
Foreshore and Seabed Submissions
Department of the Prime Minister and Cabinet
Wellington
foreshore.submissions@dpmc.govt.nz
Public Access New Zealand is a charitable trust formed in 1992. Our objects include the preservation and improvement of public access to public lands, waters, and the countryside, through retention in public ownership of resources of value for recreation. We are a research-based advocate for the public recreational interest.
A very diverse range of land, freshwater, marine, and conservation groups and individuals support us. We are probably unique for the diversity of recreational codes that support our work. In the coastal environment our supporters' activities include walking, picnicking, angling and bathing. Approximately 120 organisations and 500 individuals contribute financially to our cause. The total number of people represented by our supporters is approximately 150,000.
PANZ has taken the leading non-government interest in the Queen's Chain and its enhancement. We therefore welcomed Labour's election promise to extend the Queen's Chain. To assist government in achieving this we published a major manifesto of actions that could be undertaken to implement government's policies for the outdoors. The section on the foreshore "Bathing at the Beach", in 'Improving Public Access to the Outdoors', is of particular relevance. There are also major sections specifically about the Queen's Chain. This publication is attached as a pdf document (access_strategy_version_1.pdf).
This was published on 19 June 2003, the same day that the Court of Appeal released its foreshore and seabed decision. Our paper has been submitted to the PM, and the Ministers of Land Information, Conservation, and Local Government. Our paper was based on the long-established assumption that the foreshore and seabed was by and large owned by the Crown, and we did not address the ownership issues directly arising from the Court's determination. This submission covers our concerns on these aspects, however the matters we raise in "Bathing at the Beach" still must be addressed.
The issue of the Queen's Chain, although intimately related to the foreshore, is separate from it. A different set of legal issues pertains to dry land. Different mechanisms exist for access ALONG water margins, as well as for access TO water margins. We submit that Government, while remaining mindful of its duty to create public reserves to extend public access along water margins, deal with the foreshore and seabed issue separately. Recreational aspects of the foreshore and seabed issue relate to recreational USE rather than access per se.
A 1981 national survey found that 79 per cent of respondents had visited beaches and the coast during the previous year (usually with multiple visits), compared to 50 percent for lakes and rivers, 38 per cent for forests, and 26 percent for mountains. A summer survey in Christchurch in 2001 found that 95 percent of respondents found the coast and beaches the most popular setting for recreation, the urban fringe 77 percent, rivers and lakes 71 percent, parks and reserves 59 percent, and farm land 43 percent.
These surveys reaffirm what most New Zealanders already know - that "the beach" is very much part of the national psyche. There is a long history of freedom of public use and enjoyment which is so engrained into everyday life that any threats to those freedoms are perceived to be attacks upon personal liberties. Therefore the depth of public alarm arising from Government's handling of the Court's decision is hardly surprising. We predict that if the Government gets this issue wrong, there will be an unprecedented backlash, and deservedly so. We also believe that the social division that would result from racial preference and consequent discrimination against the vast majority of New Zealanders would be immense and irreparable. It behooves any government to ensure that such a legacy is never created.
The major difficulty we have with Government's proposals is the lack of detail attached to the meaning of the key concept - "public domain". We hope that this does not amount to what one commentator has observed: "Perhaps the term 'public domain' is designed to confuse the dumb Pakeha more than the dumb native". It must amount to much more than rhetoric. The merits of the proposal can only be determined by its substance. To date there has been little forthcoming from Government. We provide within this submission what we see as necessary to make this "domain" truly public.
We earlier submitted a series of questions to Government over its proposals for the foreshore and seabed. Many, but not all, of these were replied to on 15 September and delivered during a meeting with the Deputy PM. To provide an avenue for government (Hon. Pete Hodgson) to explain its proposals, we organised a public forum in Dunedin on 25 September.
We draw on these responses and what we learned from our meetings with government for much of this submission.
The four principles that Government advances for dealing with this issue - access, regulation, protection, and certainty, are really all 'motherhood and apple pie' concepts that any reasonable person would have difficulty in disagreeing with. These principles could and should equally apply over Crown-owned foreshore and seabed.
The devil is in the detail of Government's proposals. There is a lot of detail yet to be revealed before there can be any assurance that the proposals will achieve their stated aims.
In recent times we have heard frequent assurances from some Maori that there is no intention to deny public access and therefore "access is not an issue". We also hear similar statements from other sectors such as farming that access is not a problem. However the reality on the ground proves to be somewhat different. This is the root of widespread public skepticism and distrust of such statements. From our inception, PANZ has had to deal with endless complaints against land holding interests, including Maori, lawfully and unlawfully obstructing and denying public access. Even if current owners and occupiers freely allow public access across their holdings, there can be no assurance that future occupiers will be similarly disposed. It is essential that Government enact unambiguous and secure rights of "open access and use by all New Zealanders". No reliance can be placed on current assurances from Maori, or anyone else.
It appears from Government's responses to our questions, that existing rights of navigation and fishing over the seabed will be unaffected, with swimming and walking to continue as "unregulated public freedoms or privileges". Dr Cullen stated that "Whether those current freedoms would need to be specified as detailed rights is a question yet to be addressed". "Open access" means "traditional" rather than customary.
We believe that for public use to be no more than a privilege is inconsistent with the notion of 'public domain'. Privileges can be withdrawn at any time. Statutory rights of recreation are necessary (our detailed proposals follow below).
Dr Cullen also stated that "...it is unlikely that the legal consequences of that recognition (of mana and ancestral association) would include a right to exclude others", however Government "haven't considered implications of new property rights", other than freehold that might arise from the Maori Land Court. Whilst Government has stated that no further freehold titles will be issued", Dr Cullen stated in our meeting with him that "exclusion by other property rights is not necessarily precluded".
We have difficulty in understanding that such contemporary concepts have anything to do with traditional customary rights. It was only the latter that the Court of Appeal determined could be recognised by the Maori Land Court.
Government responses to our questions show that in fact customary "rights" are being expanded by the Government's proposals, "so as to give greater recognition of Maori interests". This is due to political considerations rather than matters of law or justice. Dr Cullen stated to us that there "will be a rank ordering of interests" with primacy to "customary over traditional use". Such an approach is contrary to the notion of "open access and use by all New Zealanders", and if widely applied would reduce a public domain to no more than a private domain.
'Mana' is commonly interpreted to mean "prestige or influence". In a tribal setting, that usually translates to authority over others - the power to deny/exclude or permit some action or privilege. The concept of 'mana' is capable of universal application, independent of any proven on-going traditional customary right. It is also capable of being applied in any manner of the holders' choosing.
Similarly the concept of "ancestral association" is capable of universal application. Everyone born in New Zealand has ancestral associations with New Zealand as a whole, and places in particular. The government's proposals to recognise "ancestral association" for some but not others is discriminatory and racist. Government has not presented any lawful authority for such a concept becoming official policy.
A more fundamental question is what on-going traditional customary rights are there? Given that fishing and shellfish were excluded by the 1992 fisheries settlement, what remains? Neither Government nor Maori are willing to say. The Court of Appeal observed that it would be difficult to establish such rights. It may have been better for Government to either appeal the decision or let claims take their course before the Maori Land Court. From a situation of improbability of such rights existing, Government has now opened the door to all manner of nebulous "rights" arising from assertion of contemporary cultural perceptions. 'Mana' and 'ancestral association' will be easy to assert, but impossible to rebut.
There is no justification in the recent Court of Appeal decision for expansion of the Maori Land Court's jurisdiction to recognise 'mana' and 'ancestral association'. Such undefined and expansive concepts have no proper role in an evidence-based judiciary.
Rather than assert Crown ownership over foreshore and seabed, as the Court of Appeal almost invited Government to do by enacting "crystal clear" legislation, the Government now proposes a revolutionary approach of no one owning such areas. There are boundless issues arising from such an approach, the durability and workability of which is unknown. Government has either not thought through the possible ramifications or is not revealing such.
There are contradictions in argument for this stateless "domain". For instance in the government reply to us of 15 September it is stated that "if a space is not owned, there is no right to exclude others and the concept of trespass does not come into play". Such a view is wrong. The Trespass Act 1980 clearly establishes that lawful occupation of a place or land is the sole basis for invoking trespass. It doesn't require ownership. An owner is usually also the occupier, but not always. For instance lessees hold occupier and trespass rights, not the owner of the land.
There is only one consistent assurance Government has made over matters of ownership. It is that fee simple or freehold title will not be allowed to be granted. The only reasons stated as justification for this is to prevent the exclusion of the public and on-selling the land. There have been no assurances that other forms of 'title' may not result from an expanded jurisdiction of the Maori Land Court. These may exclude the public. In fact Dr Cullen acknowledged to us that "exclusion by other property rights is not necessarily precluded".
The above contradictions naturally give rise to doubts as to the officially stated reasons for government's approach on ownership. Is it really a preoccupation with ensuring "open access and use by all New Zealanders" or some more basic economic imperative?
The Land Act 1948 defines private land as "any land which is for the time being held in fee simple by any person other than Her Majesty". In contradistinction, Crown land is defined as "land vested in Her Majesty which is not for the time being set aside for any public purpose or held by any person in fee simple". Despite there being a wide variety of estates as leases and licences over Crown land which convey exclusive possession and occupation rights, and are "private" for practical purposes, these do not convey private ownership of the underlying land.
It is interesting to reflect on the Government's emphatic rejection of the Waitangi Tribunal's recommendations on the Petroleum Claim and a possible connection between what the Crown conceded at that hearing and the Crown's determination that there be no customary/freehold title over the foreshore and seabed.
The Tribunal recorded (Wai 796 at 5.2):
"It is not disputed that there was a Maori customary interest in petroleum. At the hearing, the Crown accepted at the outset that such an interest existed as a corollary of Maori customary ownership of land containing petroleum:
"There is a good argument for a collective Maori interest (hapu/iwi) in petroleum prior to the [Taranaki] confiscations of the 1860s, Crown purchases and the granting of land titles through the Native Land Court and subsequent alienations commencing in the 19th Century."
"The Crown also accepted that the Maori customary interest in petroleum included a right to exploit the resource for economic gain: "it is accepted that had ownership of land by iwi and hapu persisted it is difficult to see why pre 1937 there would not have been a right to benefit from exploitation of the petroleum resource."
"Thus, the Crown accepted that there was no need for Maori to prove that they actually used petroleum before or after the time of the Treaty, either for commercial or for non-commercial purposes: it was sufficient that Maori could claim customary title to the surface of the land above the resource" [our emphasis].
Prior to 1937 the owners of the surface of the land also owned any petroleum under it. There was no statutory assertion of Crown ownership.
The Petroleum Act 1937 changed this legal understanding. It shifted the determination of ownership from the common law to statute and expropriated the resource to the Crown. All petroleum in its natural condition "on or below the surface of any land within the territorial limits of New Zealand" was declared to be the property of the Crown regardless of the ownership of the land (Wai 796, 4.1).
Therefore the Crown's interest in petroleum is protected so long as the possibility of any residual customary rights leading to freehold is precluded. If government sticks to its stated aim of preventing freehold title being granted it will protect the national interest in petroleum, but will it assure "open access and use by all New Zealanders"? Unless there are also express measures to preclude all exclusive private rights, independent of land ownership or non-ownership, it appears not.
There is an important distinction between 'regulation' and 'management' of natural resources like the foreshore and seabed, however the Crown 'principles' appear confined to regulation, setting up a regime for others to manage. At best Dr Cullen told us that "the Crown is responsible for the 'framework' of management".
Dr Cullen further stated that Government is considering district councils or new structures rather than regional councils for management responsibilities. He stated that government is also considering 'co-management' or total devolution (to iwi/hapu). Precedents in law are claimed to exist as justification for devolution of power and responsibility away from the Crown and public authorities. However my search of current NZ legislation could find no instances of 'co-management' for natural resource management. Even if there were precedent, is this justified over foreshore and seabed given that the courts have not held that there is any such entitlement?
Co-management is often advocated under the notion that a "partnership" exists between the Crown and Maori with entitlement to 50 percent of the say, control or ownership of resources. My study of the Treaty of Waitangi and Court of Appeal decisions which gave rise to such notions, does not support the concept of a 'partnership' existing ('The principle of Partnership and the Treaty of Waitangi, Mason B J, 1993 - attached monograph_06.pdf and doc_partnership_response.pdf and doc_response_critique.pdf). The Court has not held that a 'partnership' exists, only that something "in the nature of" or "akin to" a partnership exists (the Lands case). The Court has not defined what it means by the term, however it is stated what it is not - the Coal Corp and Forest cases expressly stated that the 'partnership' does not necessarily mean a 50 or other per cent relationship.
A partnership model is profoundly undemocratic, wrestling control of public resources away to private interests. The inevitable consequence of co-management or partnership relationships will be the muting of public bodies supposedly responsible for governance on everyone's behalf. The casualty of co-management and 'partnership' will be the general public who will loose a voice and any say over the management of these natural resources. An early indication of what will result is the decision of the Southland District Council to not make a submission on these proposals because of their "special" relationship with Ngai Tahu. It has been reported that the Council does not wish to offend the iwi, who have lodged claims to ownership of all foreshore within their rohe. Silence, and lack of representation of the interests of the wider community, is the result.
Kaitiakitanga, or the exercise of guardianship in accordance with tikanga Maori, has also been advanced as a solution to the current political difficulties. It should be noted however that there is no such traditional Maori concept. The term is an invention of the 1980's, modeled on the Guardians of Lakes Manapouri and Te Anau and of the Rotorua Lakes - both very Pakeha institutions.
The concept of a "public domain" would be directly undermined if de facto ownership were created by vesting control in private entities. This will be the telling test of Government's commitment to a truly "public domain". The reality is that who has control has effective ownership. This was recently spelt out by some Maori, now unable to claim freehold title, who want "ownership through control" - as reported from the Wellington hui on 25 September.
We submit that control of the 'public domain' must remain with accountable public institutions deriving their powers from the Crown. Any devolution of management and control to private entities should be confined to small discrete areas where there are proven customary rights founded on uninterrupted use. Any delegated control must be confined to self-regulation of the members of such entities, and must not extend over others.
We do not agree with confiscation of existing private property rights or "deeming" a public domain and "open public access" to exist while remaining as private property. Successive governments have acknowledged that past errors or misguided action led to the very limited areas under private title. It has been long-standing practice to revest such areas in the Crown. We believe this should continue, however individual assessment of such areas is necessary if public purposes are to be served. There is no point in "deeming" access to exist if practical access cannot be provided for a variety of reasons. These may include structures that cannot or should not be removed.
We favour the option of buying out private titles where a public purpose would be served, and leaving alone if no purpose would be served.
The notion that 'access' is independent of land ownership and management is a recurrent theme in recent government proposals concerning the outdoors. However it is a fallacy to believe that recreation is just about "access". There has to be control over land use to ensure that the environments used remain attractive and useable settings for recreation. There is no point in providing legal "access" if the area becomes obstructed. The only assured way of securing "open access and use" of foreshores is through Crown/public ownership and control.
The largest potential category of private title results from coastal erosion. However we are perturbed by recent Government statements accepting that, just because a boundary to a title is now out to sea, that private ownership continues to extend to the eroded boundaries. Such a view takes no account of movable freehold boundaries along water margins. These arise from the common law doctrine of accretion and erosion. If the sea gradually and imperceptibly encroaches onto the land the owners of the affected parcels lose those parts of the land which have been washed away. As the Crown is prima facie the owner of the foreshore such land accrues to the Crown. The principle of movable freehold applies to Land Transfer land. We rely on Hinde, McMorland & Sim, 'Introduction to Land Law', Second Edition 1986, Butterworths, Wellington, section 2.203, as authority for this part of our submission.
We submit that the following principles be adopted for defining and governing the proposed public domain.
These have been refined from what we presented to Michael Cullen Deputy PM and John Tamihere, and Pete Hodgson in meetings in Wellington and Dunedin on 15 and 25 September 2003 respectively.
The principles build on existing provisions in the Foreshore and Seabed Endowment Revesting Act 1991, and on Government's announced principles of access, regulation, protection, and certainty for dealing with the foreshore and seabed issue.
If the government is serious about a "public domain" it will need to adopt the essential elements of the following. Otherwise, Crown ownership and control is the only proven means of protecting the public interest.
Extent of the 'public domain'
The public domain should be -
All lands of the Crown revested in the Crown by the Foreshore and Seabed Endowment Revesting Act 1991 and other foreshore and seabed previously presumed to be land of the Crown, and Crown land, except that set aside for any public purpose. Land held under private title should also be excluded, however -
There should be continued revesting in public domain of foreshore and seabed as lawfully acquired from private title, on unlawful reclamation, and on land use change contrary to or on expiration of existing authorised consents.
Explanation:
1. There cannot be open access everywhere. For instance many islands are nature sanctuaries and reserves where landing and passage along the foreshore must be prohibited. There are special status public lands such as maritime and national parks, and marine reserves, that contain foreshore and seabed. Deeming currently protected areas to be "public domain" would presumably extinguish existing statutory protections, and public rights where such exist. There are also operational ports and defence areas where as-of-right public access must be prohibited.
2. Private title is generally assumed to be very limited in extent. Long-standing government practice has been to progressively revest this in the Crown. This process should continue rather than legislate a generic deeming of all such lands to be "public domain", while leaving in private ownership. Deeming private title "public domain" would not necessarily result in practical or secure public access. Case by case assessment is necessary.
Governance of the 'public domain'
Explanation:
1. While in theory a public domain could operate without "ownership" by anyone, the concept would be directly undermined if vesting control over "the domain" in private entities created de facto ownership. This will be the telling test of Government's commitment to a truly "public domain". The reality is that who has control has effective ownership: e.g. some Maori, now unable to claim freehold title, want "ownership through control" - as reported from Wellington hui 25 September.
2. Dedicating the foreshore a public 'highway' would activate citizen common law remedies against obstruction and obstructers. Such a measure is unnecessary over seabed, as there are already common law rights of navigation and anchorage.
Finally, we submit that if the above principles for management of a foreshore and seabed 'public domain' are not adopted by Government, then the Crown pass legislation making Crown ownership and control of such areas "crystal clear".
Yours faithfully
Bruce Mason,
Researcher & Co-Spokesman