Key Points in the Foreshore and Seabed Debate: (2011)

• The foreshore and seabed have always been owned by the Crown on behalf of all New Zealanders. If Maori had thought they owned it, every Treaty of Waitangi claim since 1985 would have included the foreshore and seabed. None did.

• The Court of Appeal decision in 2003 gave Maori the right to take customary title claims to Court. However they believed there was little if any Maori customary land left in New Zealand (all such land having been converted over time by the Maori Land Court into Maori freehold land), and the test was high – Maori had to own land contiguous (adjacent) to the foreshore and seabed being claimed and they had to prove continuous and uninterrupted usage of the area since 1840. Appeal Court judges thought few, if any, such claims would succeed.

• Labour’s 2004 Foreshore and Seabed Act, which reaffirmed Crown ownership of the foreshore and seabed, enabled Maori to ‘have their day in court’. If they wanted to claim a territorial customary right, they had to prove their case in the High Court using the “contiguous” land and “exclusive and uninterrupted usage since 1840” test. No such claims have been completed since the law was passed.

• National intends repealing Crown ownership of the foreshore and seabed – not because the law is not working, but because they want the Maori Party’s votes. National has no mandate for doing this - if they had campaigned on giving the foreshore and seabed to Maori at the 2008 election, they are unlikely to have been elected, and having won only 2.3 percent of the Party vote at the last election, the Maori Party does not have the mandate of wider Maori either.

• The separatist law that National is planning to introduce will open the floodgates for a massive land and resource grab by Maori. The reason is that National intends to scrap the “contiguous” land requirement – opening it up for Maori from all over the country to make a claim - and in addition, they intend to scrap the need for claimants to prove “exclusive and uninterrupted usage since 1840” in a court of law. This new law will usher in a new era whereby Maori will negotiate favourable foreshore and seabed claims through secret backroom deals with friendly Ministers, instead of having to prove their case in an open and transparent manner in a court of law (court will remain as an option, but it will more than likely only be used as a last resort). So in spite of all the rhetoric, National’s new law will not require Maori to have their ‘day in Court’, whereas the present Foreshore and Seabed law does require a day in court!

• The foreshore and seabed covers 10 million hectares including the whole of the coastline and the Territorial sea out to the 12 nautical mile limit, all harbours and tidal estuaries, the airspace above and most of the mineral wealth below. The iron sands alone have been valued by Crown Minerals at over $1 trillion. If Maori become owners of the foreshore and seabed, they will have the right of veto over all coastal activities (with no rights of appeal), the right to set up aquaculture operations, to develop the area, to mine the mineral wealth which they will own, and to effectively control New Zealand’s biggest public asset - including boat ramps, marinas, slipways, roads, and eventually ports and all other businesses activities that depend on licences. Once this law is changed, it is to be expected that over time, the whole coastline will be owned and controlled by Maori, not only the Territorial Sea, but they are unlikely to stop until they control the whole Exclusive Economic Zone as well.

• Some Maori have indicated already stated that if they win ownership rights to the foreshore and seabed, they intend to start proceedings to seek compensation for loss of foreshore and seabed income since 1840.

• John Key refuses to guarantee that under his new law public access to the beaches and sea will be free. Already many tribal activists believe they own the country and openly flout the laws of the land. No politician can guarantee that Maori tribes will take any notice of requirements for free public access to the foreshore and seabed once they own it.

Prepared by the Coastal Coalition 2011