Jock Brookfield: Time for a rethink on Maori customary title

In the Marlborough Sounds case in June 2003, the Court of Appeal held that Maori customary communal title in areas of sea land (of foreshore and seabed) could exist at common law. Recently the Herald referred to that decision as "astounding" and many readers will infer that the decision was a judicial aberration. The inference would be wrong.

As Michael Cullen has acknowledged in his 2005 Michael King Memorial Lecture (and elsewhere), that decision was correct. And it was in line with a large number of overseas court decisions, from Canadian, Australian and United States jurisdictions, as well as the Privy Council.

The New Zealand decision did not open the way to Maori claims to customary title nearly to the extent many hoped or feared, for proof of such claims would be limited largely to the bed of shallow waters on which possessory acts such as the maintaining of fish traps could be carried out.

Now that the whole matter is back again in the news, it is timely to draw attention yet again to the strength of the court's decision and to the gross overreaction to it by the Government. Its immediate reaction was to announce it would introduce legislation to secure absolute Crown ownership of sea land not privately owned.

The controversial result was the passing of the Foreshore and Seabed Act 2004, the repeal of which is proposed in Tariana Turia's Bill now before Parliament.

That Act carried out the Government's declared purpose and extinguished all customary communal title in sea land. The Act by way of compromise makes some provision for limited customary use rights that are non-territorial.

But Maori territorial claims to title to areas of sea land, to actual possession and ownership under the common law of the legal system brought by colonisation, have in effect all been extinguished.

Tribal groups who establish through the High Court that they had such title may obtain redress from the Government at its discretion. There is no assured right to compensation.

The Act was Parliament's solution to what was seen, quite wrongly I think, to be a serious crisis over ownership of sea land.

Admittedly the Government and the public had valid concerns. The court had held that claims to sea land could proceed in the Maori Land Court, with the possibility that that court might follow recognition of customary title with orders granting freehold titles to the claimants, so that areas of sea land could ultimately come into private ownership and be exploited on the market.

Also, it was feared that lengthy judicial proceedings to establish customary title would delay marine development. Then there was the apparent endangering of the public recreational use of sea land.

Yet these concerns could be met by legislation specifically dealing with each but still preserving substantially the benefits to Maori of customary communal title where that could be successfully proved.

It would have been enough to bar the issue of Maori freehold titles and to vest sea land in the Crown, but in trust for successful Maori claimants to particular areas - so development would not be delayed but Maori would benefit from it if it occurred - and to provide for rights of public recreational use whether or not a particular area was held in trust in that way.

Such a solution was put forward repeatedly to the Government and to MPs, not only without success but without any indication from the politicians why it was not acceptable.

Cullen's media statement in November 2004, on the passing of the legislation, told the public how they could resort freely to the seaside without any of the fears the Marlborough Sounds case had generated.

But he could have said the same if the act had simply provided (as it does) for free recreational use, but left customary title otherwise intact.

Maori claims to sea land are not based on the Treaty of Waitangi but on the common law that colonisation brought. Arguably, Treaty claims are rightly settled ultimately at the discretion of the Crown.

But customary title is a species of legal property and should not be taken by Parliament without full compensation determined by an independent authority. If that is thought to be a difficulty, why extinguish customary title in the first place when public interests can be met simply by abridging it in ways mentioned above?

Property rights usually have the strong support of conservatives. Ironically, it is conservative members of the National Party caucus who are reportedly against allowing Turia's Bill to go to a select committee.

National argues that the legislation gave too much recognition to customary rights. But the real point is that it is the courts which have upheld and recognised the possibility of Maori customary communal title.

There are cogent reasons for Parliament to abridge that form of title, as discussed above. If there are any for extinguishing it altogether we have yet to hear what they are.

There is material here, surely, that could properly be considered by a select committee. Radicals, liberals, and the conservative defenders of property rights alike should agree on that.

* Jock Brookfield is an Emeritus Professor of Law at the University of Auckland and author of Waitangi and Indigenous Rights: Revolution, Law and Legitimation.

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