Green Party minority report

This is the Greens mionority report that was attached to the back of the Select Committee report.
Fisheries and other Sea Related Legislation Select Committee
Foreshore and Seabed Bill
The Green Party member considers that this legislation is unnecessary and grossly unfair. The Green party recommends that the Government should:

•withdraw the legislation because it is unnecessary, it discriminates against Maori on the basis of race, fails to protect the ecological values of the coastal marine area, extinguishes common law customary title without consent and does not confirm rights guaranteed under Te Tiriti o Waitangi.

•not inhibit the legal pathways open to Maori and initiate a process of full and proper consultation and negotiation with tangata whenua.

The Green Party member believes that a number of viable alternatives exist. Our position has been to support access to the courts for a declaration of customary land status and the development of collaborative management in the coastal marine area. Key points include;

•There should be no saleable private and exclusive title granted over the foreshore and seabed to anyone, New Zealanders in general, tangata whenua, or overseas interests.

•We would amend Te Ture Whenua Maori Act so that Maori customarily owned land must remain in Maori ownership.

•Collective customary title to the foreshore and seabed is to be upheld and not extinguished by legislation.

•Public access should be protected, except for very special areas where environmental protection, historical, cultural, or spiritual significance makes this inappropriate.

Collective customary title includes kaitiakitanga responsibilities and rights to development

Public foreshore and seabed to be vested in the Crown

The Green party member considers the redefinition of potentially disputable areas of foreshore and seabed as 'public' foreshore and seabed is unjustifiably deceptive and has contributed to the growing confusion and concern by many New Zealanders. This land should not be vested in the Crown, as this takes away the right of Maori to pursue their claims for customary title in the Maori Land Court.

Further the member believes that crown ownership provides no guarantee that it will not, in the future, be sold off, or leased long-term, particularly to private interests. Collective whanau, hapu or iwi title would provide greater security of New Zealand ownership given the legal impediments to disposing of Maori land under Te Ture Whenua Maori Act. If there were any legitimate concerns that Maori may sell the foreshore and seabed, appropriate amendments could have been made to Te Ture Whenua to preclude this from occurring.

The right of whanau, hapu and iwi to take claims of customary title to the Maori Land Court should have been upheld. While we agree that this creates some uncertainty, we do not believe that this is sufficient to outweigh the rights of tangata whenua to prove their case in court before the foreshore and seabed is vested in the Crown. Changes could have been made to the Court to enable it to more effectively deal with the foreshore and seabed claims, or provide the High Court with the jurisdiction to hear common law claims (prior to any legislation). This has some consistency with the trusteeship model proposed and supported by some submitters.

Further, is is critical that the bill should include an entrenchment clause so that a significant majority of the House is needed to sell off any parts of the public foreshore and seabed. The Green Party member strongly supports New Zealand ownership. The member would however seek an exception to the entrenchment clause where the crown agrees to transfer ownership of some parts of the foreshore and seabed as a part of the historical Treaty settlement process.

Extension of foreshore and seabed by acquisition of land in private title

The Green Party member believes that, with the bill proceeding, where any areas of foreshore and seabed in private title are acquired by the Crown those titles consideration should be given to bannking those areas as potentially available for Treaty settlements, whether there is an existing treaty settlement in that region or not. If the areas are not used for treaty settlement purposes and are offered for private then iwi, hapu, whanau could be entitled to a right of first refusal.

Access to areas of public foreshore and seabed may be prohibited or restricted
The Minister of Conservation should not have sole responsibility for restricting and prohibiting access to the public foreshore and seabed. This provision seriously fails to recognise and provide for kaitiakitanga rights and responsibilities. Kaitiaki who are mana whenua/mana moana should have better access to delegated authority provisions that would provide some ability to restrict or prohibit public access.

The Green Party member strongly believes that clause 21 should be extended so that holders of customary rights order may, at a later date apply to the Maori Land Court to restrict access that is affecting the exercise of their customary right. We believe that circumstances, such as population increases or destructive recreational activity may arise at a later date where public access may need to be restricted or controlled to maintain the integrity of the customary right.

Fidiciary duty
The Government recognises a fiduciary duty under Te Tirit o Waitangi - a relationship that owes particular obligations of trust and confidence to a beneficiary. In relation to customary rights and title, the doctrine has been developed in Canada, where the courts have found that the Crown may hold land subject to obligations similar to these a trustee has to beneficiaries. The doctrine is usually concerned with past crown actions, but remains relatively undeveloped here in New Zealand. The Green Party member considers that the crown has a fiduciary duty to Maori in regard to the public foreshore and seabed.

Treaty of Waitangi
The Green member supports the inclusion of a high level statement and set of principles that recognise the place of te Tiriti in the context of the bill. While the government reinterates that this is not a tte Tiriti issue, te Tiriti does form a critical background to the question of custormary rights and there are te Tiriti implications. A set of principles would provide the Courts with guidelines as to the intentions of the bill and the broader constitutional factors that need to be considered.

Territorial customary rights and customary rights orders
The test for customary rights and territorial customary rights is too stringent and it will be very difficult for whanau, hapu and iwi to make a successful claim. Particularly, the adoption of the Australian developed test of 'substantially uninterrupted' is too high a threshold. Moreover, there is no provision for the courts to consider actions of the Crown such as confiscation of land or deliberate crown policies resulting in Maori losing their land, particularly contiguous land. Given the current recognition of the effects of historical wrongs, the effects of Crown action should be a mitigating factor in determining TCR's and CRO's.

Inadequate consideration was given to alternative (common law) tests, for example the Canadians who use 'continual use' or 'reasonable degree of continuity. Moreover, there is no provision for the special and unique circumstances that the Treaty of Waitangi brings to the development of New Zealand law. New Zealand law would be developed in accordance with Treaty jurisprudence, developed over the last 40 years and would not rely solely on international contexts, as government policy does.

The Green Party member strongly disagrees with the provision that any New Zealander may apply for territorial customary rights. This provision is a total abrogation of M