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RANZ Submission on
'Reviewing the Foreshore and Seabed
Act 2004'
30 April 2010
1. Should the Foreshore
and Seabed Act 2004
be repealed? NO (and YES)
Comment:
Repeal is an unnecessary and
undesirable reaction to political pressure
from a coalition partner within Government. The public interest in
these wet lands is better protected within the existing Act, with
amendment. However if there is to be total repeal of the 1994 Act, with
reversion to previous law, the foreshore should be designated a public
highway.
2. The government
proposes the following
approach to ownership of the foreshore and seabed:
the 2004 Act
would be repealed and
Crown ownership removed;
customary title
extinguished by the
2004 Act would be restored;
no one owns, or
can own the foreshore
and seabed (except land in existing private titles);
instead of
identifying an owner of
the foreshore and seabed, legislation would specify roles
and
responsibilities;
customary
interests of hapū/iwi would
be tested and, if proven, recognised through awards; and
the Crown and
local government would
continue to have regulatory responsibility (subject to awards
recognising customary interests).
Do you support this
approach? NO
Comment:
Statement above
that "customary title extinguished by the 2004 Act
would be restored" is false as there were no proven customary titles in
existence. Someone has to 'own' these lands if they are truly to
serve public purposes. Citing that no one owns the continental shelf,
as a precedent for the foreshore and seabed, is fallacious as, unlike
the latter, the continental shelf cannot be physically occupied to the
exclusion of others. Michael Cullen tried this same argument,
unconvincingly, back in 1993/4.
3. The government
suggests the name
‘public domain/takiwā iwi whānui’
for its
proposed new approach. Do you
agree with the name, or do you
suggest another
name for the area?
Comment:
We don’t
agree with the name
‘public domain/takiwā iwi whānui’
The so-called 'public domain' is a
Clayton's Domain. A domain is an
estate. If it is the public's estate, it must be set aside for public
purposes. What government proposes is little more than a land bank for
Maori claims and aspirations, to the exclusion of everyone else.
What does takiwā iwi whānui’
mean? No definition is
provided. Literally this could mean a 'broad iwi district' which
contradicts the notion of a 'public domain'. Just whose district
or domain is it?
There is nothing innovative or "new
or sophisticated" about
Government's latest proposal. It mirrors that of the last Government's
2003 proposal for a "public domain".
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.
The reality is that who has control has effective ownership. Various
Maori commentators have said the same.
The following
principles are necessary
for making the Foreshore and Seabed truly Public Domain-
Held as lands of
the Crown by Government (as
the only legitimate administrator on
behalf of all of the people of New Zealand) for public purposes,
in trust, on behalf of
everyone
• so as to protect, as far
as is practicable, the natural and historic resources of the land and
for public recreational use and enjoyment.
Open recreational use for all New Zealanders, with
Government duty to facilitate public access TO the foreshore as a
matter of national importance
• rights of
navigation, anchorage, boating, bathing, swimming, recreational
fishing, and walking.
• other uses as regulated privileges.
• regulation of
recreation by combination of central and local government.
Held in perpetuity
•
permanent disposal only by
special Act of Parliament (not Reserves and Other Lands Disposal Acts)
Private ownership
should not be extended
•
no new freehold titles, or
rights leading to occupation and trespass rights
•
existing private titles only
extinguished where public purposes would be served
Management by
publicly accountable bodies
• no divesting of
control, 'partnership', 'co-management', kaitiaki, etc.
Resource management
and consents continue under Resource Management Act
• subject to public
purposes (as above).
Maori customary
rights confined to uninterrupted traditional uses
• must be proven
before the Courts.
• no belief-based
rights such as "mana" (pride, control, power, authority over), rahui,
leading to exclusion of others.
Citizen remedies if
unlawfully excluded
• create citizen
rights by dedicating foreshore a public highway for the purposes of a
footpath.
4. Do you think
coastal hapū/iwi should
be able to negotiate with the Crown for recognition of their customary
interests? NO
Comment:
This is an open licence for secret,
politically expedient, deals
without any requirement of proof of claimants' cases. There should be
scope for the determination of customary interests but through the
Courts with full testing of evidence. All subsequent settlements by
Government must be in accord with findings of fact by the Courts.
The notion that negotiation is
consistent with an alleged "partnership"
between the Crown and Maori is based on modern mythology, not law. The
Courts, and certainly Parliament, have not determined that a
'partnership' exists. The closest the Courts have got (1987 Lands case)
is that something in the nature of, or akin to, a partnership exists.
The Courts have failed to define what this relationship means while
exhibiting utmost judicial confusion by repeatedly interchanging
references to the terms 'party' and 'partner' in the same context.
These have quite different meanings and connotations. A
first-year law student wouldn't get away with such sloppy
reasoning, however this is a field of judicial adventurism that only
the Court of Appeal seems to reserve to itself. Subsequent cases
at the Court of Appeal have determined what this so-called
'partnership' does not mean – any suggestion of equal or other
entitlements to any asset or other resources by Maori.
The law on
Partnership in New Zealand
There are three essential elements,
without which a partnership cannot
exist-
• there must be a business;
• it must be carried on with
a view to profit;
• it must be carried on by or
on behalf of the alleged partners.
Principles
of the Law of Partnership. Fifth edition. Webb and Webb 1992.
Butterworths, Wellington.
'Partnership' is also defined in
the Partnership Act 1908 (s 4) as "the
relation which subsists between persons carrying on a business in
common with a view to profit". These definitions hardly fit the nature
of the Treaty of Waitangi.
Section 5 of the Partnership Act
provide rules for determining the
existence of partnerships. If applied to the Treaty of Waitangi none of
these could construe 'partner' status to either the Crown or Maori or
the existence of a partnership.
Ref: 'The Principle of
'Partnership' and the Treaty of Waitangi'
Bruce Mason. 1993/1995.
www.recreationaccess.org.nz/files/monograph_6.html
5. If customary
interests are
recognised through negotiation, should the awards be negotiated, or
should the awards be the same as those the government proposes to set
out in legislation?
Comment:
The purposes should be set out in
legislation, in accord with the
principles set out in 3 above.
6. Do you think coastal
hapū/iwi should be
able to claim recognition of
their customary interests through the courts? YES
Comment:
Yes, but only on the basis of rules
set out in the existing Foreshore
and Seabed Act 1994 for non-territorial customary
rights.
7. Should the Māori
Land Court hear and
determine claims? YES
Comment:
Yes, but only if the Court's
decisions are capable of judicial
review by anyone, including members of the public.
8. Should the
High Court hear and
determine claims? YES
Comment:
Yes, preferably, as long as
anyone affected is able to be party
to proceedings.
9. Should the applicant
alone be responsible
in court for proving a test for customary interests is met?
NO
Comment:
Crown MUST also have responsibility
to present other/contrary views
with cross-examination of evidence.
10. Should the applicant
and the Crown share
the responsibility in court for proving a test for customary interests
is met? NO
Comment:
The Crown's interest (representing
all the people of New Zealand) is
different from those with particular interests.
11. Should any new
legislation set out
the tests and awards or should these be left to the courts to develop?
Comment:
Legislation should set out the
tests and awards. The tests need to be
explicit and in accord to the principles set out in 3 above.
12. Do you agree that
any new legislation
should recognise two types of customary interests (non-territorial and
territorial)? NO
Comment:
Must be confined to non-territorial.
13. Do you agree
with each of the
elements of the test for determining non-territorial interests proposed
by the government? NO
Comment:
Should be confined to common law,
and statute. There should not be two
competing lines of authority– would be contrary to Article 3 of
the Treaty of Waitangi. The common law does, and can continue to,
accommodate tikanga Maori.
14. Do you agree with
each of the elements of
the test for determining territorial interests proposed by the
government? NO
Comment:
There should not be any provision
for territorial
rights. Contradicts notion of 'public domain'.
15. Do you agree
that the awards to
recognise proven customary interests should be a combination of
property rights and input to environmental management processes?
NO
Comment:
Input into management okay
provided no planning or approval veto
by iwi/hapu.
16. Do you agree
with each of the
elements of the awards for non-territorial interests proposed by the
government? NO
Comment:
No, however input into
management okay provided no planning or
approval veto by iwi/hapu.
17. Do you agree with
the customary title
award for territorial interests proposed by the government? NO
Comment:
Totally contrary to concept of
'public domain'.
18. Do you agree with
the government’s
proposals for the allocation of coastal space? These are:
the existing
processes for the
allocation of space would be retained on the basis that it is the
Crown’s role to regulate and manage resources in the foreshore
and seabed;
the Crown would
continue to delegate
the role of allocating space to regional councils; and this would be
done in conjunction with those coastal hapū/iwi whose customary
interests in the area have been recognised. YES
Comment:
Yes, but no right of veto by
coastal hapū/iwi.
19. Do you agree
with the
government’s proposals regarding structures? These are:
ownership of
existing structures will
remain with existing owners;
new structures
will be owned by those
who own the material in the structures; and
coastal
hapū/iwi whose customary
interests have been recognised will have an enhanced role in
decision-making processes in relation to new structures (through the
planning document described).
YES
Comment:
Yes, but no right of veto by
coastal hapū/iwi.
20. Do you agree with
the government’s
proposals regarding reclamations?
These are:
existing
decision-making processes
would continue in respect of reclamations although the nature of the
interest granted may change;
existing
applications would continue
to be dealt with as though the Crown were the owner of the underlying
land; and
for new
applications, local
authorities would continue to perform their current role of considering
the environmental effects of a proposed reclamation. YES
Comment:
Crown must act as owner on behalf
of all New Zealanders.
21. Do you agree with
the length of time
proposed for the new form
of coastal
permit for port companies
(50 years or more, renewable)?
Comment:
I/We have no view or preference.
22. Do you agree with
the government’s
proposals regarding local authority-owned land? These are:
any existing
local authority-owned
land within the foreshore and seabed would be incorporated into the
‘public domain/takiwā iwi whānui’; and the Crown would pay
compensation for that
land (if there is any) to the local authority. YES
Comment:
Requires the same public
consideration as Crown-owned foreshore and
seabed.
23. Do you agree
with the
government’s proposals that any new law on the foreshore and
seabed would contain provisions on adverse possession and prescriptive
title similar to those in the 2004 Act? YES
Comment:
Most definitely YES. However
concept must extend to preventing 'adverse
possession' by coastal hapū/iwi. Without Crown title, who's
interests is (private) possession adverse to? The concept depends on
Crown title.
24. What are your views
on leases and licences
within the foreshore and seabed in view of the government’s
proposals?
Comment:
Should be non-renewable and
short-term. Must be no rights of lawful
occupation and resultant trespass rights.
25. What are your views
on coastal occupation
charges within the foreshore and seabed in view of the
government’s proposals?
Comment:
I/We have no view or preference
26. What are your
views on roads within
the foreshore and seabed in view of the government’s proposals?
Comment:
Should remain. All of foreshore
should be designated a public highway
for the purposes of walking, except nature reserves and sanctuaries.
27. What are your views
on local Acts in
relation to the foreshore and seabed in view of the government’s
proposals?
Comment:
I/We have no view or preference
ADDITIONAL
COMMENT
The coast is the
primary focus for
outdoor recreation
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 ingrained
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 the previous Government's handling of the Court of
Appeal's decision in Attorney-General
v Ngāti Apa [2003] was
hardly surprising. Like on that occasion
we predict that if the present Government gets this issue wrong, 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.
Public Access Recreation
The public recreational interest is
must wider than just 'access'.
Access is ingress and egress TO a place, i.e., along public roads,
Queen's Chain reserves of various designations, and other over-land
access.
Recreation is what takes place on
the foreshore and above the seabed.
People are not 'accessing' when they are bathing, walking, boating or
fishing, etc. The express forms of recreation must be specified and
provided for in legislation.
There are no "guarantees" for
public access in the Government's
proposals. The regime for establishing territorial and
non-territirial customary rights, with rights of enforcement vested in
coastal hapū/iwi contradict such assurances. This is akin to
Helen Clark's claims that public access would be "guaranteed" at the
time of the last foreshore and seabed debate. What did her Government
do? – enact fines of up to $10,000 for anyone who enters a
customary area. Such provision must be revoked and not replaced by
similar punitive measures.
In the absence of statutory
provision for rights of public recreation,
dedicating the foreshore a 'public highway' footway is essential to
establish 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 which must be
preserved. Other forms of movement/access other than walking on the
foreshore should continue to be subject to local authority regulation.
Blanket restrictions or
prohibitions to recreation should be confined
to nature reserves, etc., and port and defence areas.
We note that the current Government
proposals provide for "certain
exceptions" to 'guaranteed' access, "for example, for health and safety
reasons in port operational areas, or protection of wāhi tapu such as
urupā (burial grounds)".
These loose proposals are destined
to become a pretext for general
exclusion (we are aware of a 2 km stretch of beach being claimed by
local Maori as being 'wāhi tapu'). We note that wāhi tapu are
only cited as examples. There are no definitions that limit the scope
for exclusion of members of the public. If there are urupā on the
foreshore (all below high water springs) these should become evident
through erosion. Either human remains should be relocated or nature
left to take its course. Imposing rahu because, for instance, because
someone is drowned, could be taken as culturally offensive. Why should
one sector of society be given the right to impose their beliefs over
others and their immediate families if they do not share such beliefs?
Conclusions
1. Repeal of the 1994
Foreshore and Seabed Act 1994 is an
unnecessary and undesirable reaction to political pressure from a
coalition partner within Government. The public interest in these wet
lands is better protected within the existing Act, with amendment.
2. However if
there is to be total repeal of the
existing Act, with reversion to the previous law, the foreshore should
be designated a
public highway.
3. This proposal is not about
creating a 'public domain'. It is
about handing over "...control, power, authority" (mana) to iwi and
hapu.