Expert sees flaws in redress provisions

By RUTH BERRY

Governments will need solid legal reasons to avoid granting some Maori groups a qualified form of exclusive foreshore and seabed ownership under legislation before Parliament, an international expert says.

And he wants the committee examining the bill to strengthen the "redress" provisions under which such rights might be recognised to prevent Governments wriggling out of negotiations where they have been found to exist.

Professor Paul McHugh is a common law and customary rights expert presently at Cambridge University.

He has acted as an independent adviser to the Crown on the foreshore issue and was one of its witnesses when it appeared before the Waitangi Tribunal.

He told the committee yesterday the legislation did not necessarily extinguish rights, but rather set up a "replacement codifying regime".

It had the ability to recognise strong rights as any court would and had the potential to recognise greater rights than had been recognised by common-law court inquiries in similar jurisdictions.

But although explicit on the scope for defining customary rights, Professor McHugh appeared to suggest the legislation was too evasive when it came to the impact of territorial customary rights orders (TCR).

Under the legislation, groups who believe they have what it labels "exclusive occupation and possession" at common law can seek a declaratory order in the High Court.

Once this is made the court will refer the group to the Government for discussions to consider "the nature and extent of any redress the Crown might give". The Government has refused to spell out what this would entail, although it said some sort of aboriginal title recognition, dual resource management regimes and compensation could be in the mix.

Professor McHugh said Maori concerns over the lack of specificity over redress were clearly justified.

But the redress provisions would be subject to judicial review.

The bill already protected the public interest - its right to navigation, fishing and recreational use - which would act to "qualify" any exclusive ownership claim.

"So one can expect that in negotiating with Maori holding a TCR and in denying redress of the 'qualified exclusivity', the Crown will need to prove extra public interest beyond that already covered by the act.

"In refusing redress or limiting it, the Crown will certainly be required to demonstrate a compelling and additional public interest."

This might relate to something like the generation of electricity, he said.

To provide claimants with a clearer understanding of their rights and to lessen the interpretive onus on the courts, the committee should strengthen the redress provision to require the "supervening public interest".

It should also consider providing more clarity on what the actual redress options were in the legislation and should be considering inserting into it the requirement that TCRs can be awarded only where contiguous ownership of land is held.

Only relatively few groups - particularly those in remote East Coast and Far North areas - will be able to claim this.

But there was no reason qualified ownership titles of some sort could not be granted under the legislation in those cases.