Summary of Waitangi Tribunal Report on the Crown's Foreshore and Seabed Policy, and Green Policy

Summary of Waitangi Tribunal Report on the Crown’s Foreshore and Seabed Policy, and Green Policy

The Waitangi Tribunal’s Foreshore and Seabed Report is damning of the Crown framework policy, using some of the strongest language seen in a tribunal report to date. Summarising its report in the first chapter, the tribunal said that while the policy would deliver “significant benefits” to non-Mäori, it would deliver “extreme uncertainty” to Mäori and is “naive” about how quickly a central commission and regional working groups could resolve representation and cross-claim issues to determine which iwi and hapu had links with different parts of the coastline. The policy contained “fundamental flaws” and was a clear breach of the Treaty as well as failing “in terms of wider norms of domestic and international law that underpin good government in a modern democratic state” (page xiv).

KEY FINDINGS

• That the Crown has seriously breached the principles of the Treaty of Waitangi in its FSSB proposals.
• If the Crown continues with its policy and expropriates property rights it should offer compensation (although it will be extremely difficult to assess the level given that the rights were not assessed and declared).

FINDINGS ON THE CROWNS’ POLICY

• Removes ability for Maori to go to the High Court or Maori Land Court for a definition and declaration of their legal rights.
• Removes property rights – (the Tribunal assumes that these exist without definition or declaration).
• Understates the number and quality of rights. The Tribunal believe that there will be instances in which fee simple could be granted.]
• The rule of law is breached – guaranteed under Article 3. Removing the right to due process from Maori only puts then in a class different from and inferior to all other citizens.
• Creates greater uncertainty for Maori in return for Government, business and general public certainty
• Offers fewer and lesser rights, in particular takes away property rights in exchange for an opportunity to participate in local government processes.

RECOMMENDATIONS
Most favoured option - That the Government go back to the drawing board and negotiate a process forward with Mäori. This option is consistent with our position.

Provided options for consideration

(1) Status Quo/Do nothing
This option allows due process to be followed. The Tribunal argues that there is lesser risk in allowing due process to proceed rather than intervention, as it would provide certainty where and when rights are identified.

(2) Provide for public access and inalienability of FSSB
The Tribunal states that there may be instances where exclusion is necessary such as rähui, urupa and waahi tapu.

(3) Improve Courts tool kit
It was submitted that there might be difficulties with the range of instruments available to the High Court and the MLC when they come to consider customary title. It could then be left that the Court makes a declaration about the nature and scope fo the customary interests comprised in the title, and the declaration itself would come to be recognised as giving rise to a property interest.

(4) Protect the mana and be consistent
Utilise an existing legal mechanism whereby land under hapu title is subject to a regime of management involving the Crown and the hapu – co-management.

The report states two key areas of agreement between Mäori and the Crown and that these provide and important basis for further dialogue. These are

- Public access
- The foreshore and seabed should not be sold

SYNERGY BETWEEN TRIBUNAL AND GREEN POLICY POSITION
1. Due process

• Allow Mäori to follow due process through the Courts and the Government to make incremental changes as necessary. We agree that the Crown is not driven to act in such as expeditious manner.

2. Public access

• Agree that the public should have access to the Foreshore and Seabed (FSSB). The Tribunal also states that there may be necessary instances where exclusion is warranted. For example urupa, waahi tapu, rähui. The Green position supports some form of exclusivity in certain circumstances.
• Access will be secure because it only refers to the FSSB – it does not relate to the area above mean high water springs. Clearly there would be practical difficulties in excluding people from the inter-tidal area. In addition most New Zealand beaches have sand above the high tide mark.
• The Tribunal state that legislated access is unnecessary given the concept of manaakitanga. However the Greens may still prefer a legislated right of access.

3. Inalienability

• Agree that an amendment to Te Ture Whenua Maori Act 1993 (TTWMA) could prohibit the conversion of customary title to fee simple thereby preventing any sale of the FSSB.

4. Recognition of customary rights

• Agree that there are rights in the coastal marine area and that these need to be recognised and provided for.

5. Co-management

• Both the Tribunal and the Greens have supported the idea of co-management arrangements. There is opportunity to build on existing examples such as Tuwharetoa/Lake Taupo, Okahu Bay, and the recently negotiated Te Arawa Lakes.

WHAT THE GOVERNMENT HAS TAKEN FROM THE REPORT
Briefly, the Government has made three key changes to its policy as a result of the Tribunal report. These are:

• Rescinded the decision to establish regional working groups to identify those with customary title. The Tribunal found that the working groups were unlikely to produce any meaningful improvement of participation in the RMA. It sees the attempt here to improve the RMA as a long overdue response to repeated criticisms by the Tribunal and Maori.
• Rescinded the decision to establish a Roving Commission to hear and make recommendations on customary title.
• The High Court has the jurisdiction to hear claims for territorial customary title. This is probably the most significant inclusion. The Government argue that this allows Maori their day in court. However others may argue that it is an empty allowance given that the Court can only make a declaration and direct the Government to enter into discussions about redress.

BRIEF COMMENT ON OTHER ISSUES
Inadequacy of current mechanisms
Existing processes (e.g. the RMA, customary fishing regulations) should be strengthened regardless of the Crowns FSSB proposals to enhance Mäori participation opportunities. The issue of FSSB should not be the mechanism by which the Government uses to amend existing deficiencies in law and practice. The proposals enhance existing rights but in doing so exchanges property rights (according to the Tribunal) for the opportunity to participate.

For your information the Ministry of Fisheries have been allocated additional money to improve the operation of the customary regulations and speed up the process of establishing mataitai and taiapure. The RMA needs to be strengthened further in the Bill to provide for co-management. This could be looked at through ancestral connection orders.

Breaches rule of law and human rights
The Tribunal states that the Government policy treats Mäori as different class of citizen under Article 3 by not allowing access to the Courts for definition and declaration of rights. It is hard to argue against the tribunal conclusion that the framework policy clearly discriminates against Mäori in its removal of the right to go to court to fully enforce common law rights. This seems to be the matter which the tribunal finds most unpalatable. It is worth noting that such discrimination would be impossible in Australia. A Commonwealth statute, the Racial Discrimination Act 1975, prevents legislation being used to extinguish common law aboriginal title claims without compensation (see Mabo v State of Queensland (No 1) (1988)83 ALR 14).

Uncertainty
The Crown believes that a failure to act would lead to intolerable long-term uncertainty because existing laws are based on the presumption that the Crown owns the foreshore and seabed. In the Policy the Crown appears to be creating certainty for itself, for business interests i.e. those who hold existing rights in the coastal area in exchange for creating greater uncertainty for Mäori.

Tikanga
The report places much emphasis on the fact that Mäori did not make a customary distinction between the land and the sea, in contrast to English law, with its emphasis on the high and low tide marks and divisions between dry land, foreshore and seabed. This argument seems somewhat beside the point, and muddies rather than clarifies the issues. For example, it does not adequately explain why there are different gods for the land (Papatüänuku) and sea (Tangaroa). The report says unconvincingly that “energies may change” where Papatüänuku meets the sea (p4). Also, insisting on the sharp division in English law between the land and sea in contrast with a holistic Mäori approach undermines arguments that English law can allow property rights to exist in the sea on exactly the same basis or a very similar basis to dry land (an argument some claimant lawyers made). All the evidence points to a conclusion that both Mäori and the Crown treated areas under the sea differently from dry land, as a matter of practicality, and in terms of the customs and laws that applied there. But both Mäori custom and English law could and did allow some exclusive interests in the foreshore and seabed where it was relatively intensively used, and/or no one really contested that exclusive use. The tribunal also makes the telling point that Mäori used some foreshore and seabed areas much more intensively than many mountainous areas in the remote interior (areas which the government acquired by formal deeds and payments).

Confiscation
The tribunal notes the admission of the Crown’s key witness, Dr Paul McHugh, that Mäori who currently have titles to extensive coastal blocks might in some cases expect that a court would find nearly exclusive interests to the foreshore fronting those lands (as may be the case with Ngati Porou). There are a number of areas where Mäori own coastal blocks of freehold land, whose beaches are infrequently visited or may never have been visited by the general public since 1840. For example, blocks extending along several kilometres of remote coastline, blocks including estuaries whose tidal limits extend inland and are entirely surrounded by Mäori land, blocks where rocky headlands prevent access to sandy beaches within the block, blocks including coastal lagoons where the surrounding dry land is in Mäori ownership.

The Tribunal does however largely accept the evidence of Dr Paul McHugh on the likely evolution of the common law doctrine of aboriginal rights in the New Zealand context. That is, the Tribunal accepts that the doctrine is a protectionist one that seeks to preserve and protect any rights that have continued in existence since 1840, and that customary rights are collective and inalienable. The Tribunal also accepts that the courts in New Zealand would be likely to follow the “bundle fo rights” approach to exploring customary rights in the foreshore and seabed, rather than using a starting point of some kind of “qualified ownership”. Implicit in this conclusion is an acceptance that the common law of New Zealand would not support an argument for full fee simple ownership fo the foreshore and seabed.