Mission Bay is next to a swathe of coastal land owned by Ngati Whatua o Orakei. Photo / Doug Sherring
The ownership of New Zealand's coastline and the issue of customary title are shaping up as major political issues as the Government prepares to repeal the Foreshore and Seabed Act.
This week, we investigate coastal ownership and examine the implications of scrapping this contentious law. Land Information New Zealand has exclusively released detailed maps and statistics to the Herald about coastal ownership.
Today, in the second of a five-part series, we look at Auckland's beaches and harbours.
Urban iwi in Auckland stand virtually no show of gaining customary title to popular beaches such as Takapuna Beach, Mission Bay or Long Bay.
Groups such as Marutuahu, Ngati Whatua, Ngai Tai, Te Akitai and Te Kawerau a Maki own 118km of coastal land by the foreshore in the Auckland
Regional Council area.
But Attorney-General Christopher Finlayson has said Maori will have to prove exclusive use and occupation since 1840 to qualify for customary title - a limited form of ownership - of the beaches.
Ngati Whatua o Orakei's heritage manager, Ngarimu Blair, said this would be impossible with more than a million people in Auckland now.
Pursuing customary title was likely to be easier for rural iwi.
"We have to see the legislation first ... but looking at it as it stands, it may be pointless for us. We can't demonstrate exclusive use of the area - a bit hard with 1.4 million people here ... the repeal isn't going to deliver for urban iwi at all."
It was a galling position as many of the tribe's customary practices had been affected by the destruction of fishing areas caused by past reclamations by the old Auckland Harbour Board.
"The history of stealing our seabed, reclaiming it and flicking it off to the highest bidder was more or less a licence to print money."
Mr Blair's hapu is one of the few to own coastal land. From Okahu Beach to Mission Bay, the tribe owns land above the mean high-water mark, and works with the Auckland City Council to manage it.
"For all intents and purposes it is a Maori-owned beach that thousands of Aucklanders can be found tanning themselves on," Mr Blair said. "When the hysteria came out we were wondering what all the fuss was about."
AUT Law School land law specialist Rod Thomas agreed that the tests would make it virtually impossible for Tamaki iwi to gain customary title. Despite this, courts would still consider cases on their merits.
The debate about the foreshore and seabed grew out of the Court of Appeal's 2003 Ngati Apa decision which said Maori should be entitled to test, through the courts, whether discrete areas of foreshore and seabed remained Maori customary land.
"The main point ... overlooked by people who are critical of the Court of Appeal judgment is that in the built-up areas it will be a lot harder for iwi to show a continued right of occupation and customary use."
To prove customary title, iwi had to show that their pre-1840 rights had continued in a way that had not been affected by either the Crown taking the land or passing laws that controlled land use in a way not compatible with those customary rights, he said.
The current law put ownership of the tidal area out to the 12-nautical-mile limit into Crown ownership and denied iwi or hapu the chance to explore their customary rights.
Crown ownership does not apply to groups which already have title to the foreshore and seabed.
Mr Thomas said basic rights which went back to Magna Carta were impinged upon by the current law, which was why the repeal was needed.
"This whole thing is really about giving Maori a fair go. It should be unacceptable to New Zealanders that any property [can] be taken or confiscated by the state without compensation, if you can prove ownership. Even more so with Maori, given past land confiscations."
