WITH AN ISSUE THAT IS SO IMPORTANT, IT IS VITAL THAT THE FACTS OF THE MATTER ARE CLEAR.

The foreshore was traditionally regarded as the area between the mean high water spring tide mark and the mean low water spring tide mark, with the seabed being the land permanently covered by the sea stretching out to New Zealand’s exclusive economic zone. Ownership of the foreshore and seabed has always been vested in the Crown except in those few cases where riparian rights had been granted including local authority holdings and former Harbour Board lands. This situation was consistent with the Queen’s Chain – a 20 metre esplanade reserve that is vested in the Crown for the enjoyment of all New Zealanders – a concept that also dates back to 1840.

When the Treaty of Waitangi was signed in 1840, Article I gave New Zealand a sovereign Queen, Article II created private property rights, and Article III introduced British common law. Since under British law, “the sea from high water mark to a point three miles out belongs to the Crown”, from that time on, New Zealand’s foreshore and seabed was deemed to be in Crown ownership – along with other common resources such as air, water, the Queen’s Chain and so on.[1] As a consequence, any customary rights to these resources were extinguished by the Treaty. In accordance with legislative drafting tradition, statutes do not state what has already been extinguished, although a 1963 Court of Appeal ruling in the Ninety Mile Beach case, clearly affirmed Crown ownership of the foreshore and seabed.[2]

South Island Maori lodge a claim

However, in 1997 South Island Maori lodged a foreshore and seabed claim with the Maori Land Court over a marine farming consent dispute with the Marlborough District Council.[3] At the time the Crown argued that the Maori Land Court had no jurisdiction over the foreshore and seabed and tried to stop the claim. But it went ahead. When the Maori Land Court found in favour of the Maori claimants, the Crown appealed it to the High Court. They won the case, with the Judge ruling that the foreshore and seabed were beneficially owned by the Crown and that the Maori Land Court had no jurisdiction in this area.

However, the Maori claimants appealed the case to the Court of Appeal and, in an extremely controversial decision in June 2003 ruled that the Maori Land Court could hear customary title claims to the foreshore and seabed. In reaching their decision the panel of five Judges led by Chief Justice Sian Elias, overturned settled law including the earlier 1963 Ninety Mile Beach landmark judgement by their own Court of Appeal.

Such Appeal Court reversals are very rare and are hugely disruptive since they throw into disarray all of the case law based on the original decision. Some commentators at the time remarked that the Court of Appeal was simply following the direction of the then Attorney-General, Margaret Wilson, to develop an “indigenous law”.

Labour had 3 choices

As a result of the Court of Appeal’s bombshell decision, the Labour Government essentially had three choices: 1)to appeal the decision to the Privy Council, 2) to let Maori have their day in Court, 3) or to legislate.

The most logical choice would have been to appeal the case to the Privy Council, but since they were in the process of abolishing access to the Privy Council, they ruled this option out. The second course of action would have been to allow the Maori claimants their day in court where they would have had to prove continuous, uninterrupted use of the foreshore and seabed since 1840. Instead they chose to legislate.

Initially it was thought that Labour would re-assert Crown ownership of the foreshore and seabed in the same way that they had re-asserted Crown ownership over oil and gas reserves following a recommendation by the Waitangi Tribunal that Maori had a legitimate claim. However, as a result of an outcry by Maori that re-asserting Crown ownership would confiscate their property rights, the 2004 Foreshore and Seabed Act, with its concept of “public domain” and management rights for Maori, became law......

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