Foreshore plans create new grievances: report

The Waitangi Tribunal has issued a report following urgent hearings in January to consider claims that the Government's foreshore and seabed policy breached the Treaty of Waitangi.

The policy was a response to a Court of Appeal decision last June which held that the Maori Land Court had the potential to issue freehold title over the foreshore and seabed.

The Government's proposals were announced in December.

Under new laws, it plans to extinguish the possibility that the Maori Land Court could grant exclusive title and guarantee public access to the foreshore.

But it provides a new role for the Maori Land Court. It provides for whanau, hapu and iwi to register an ancestral connection or "customary title" with particular areas, the right to have particular customary-use rights registered against the customary title, and great rights to take part in a new 16-region management regime.

The following are abridged extracts from the report:


THE POLICY

"The Crown told us that, 'In brief, the Government's policy seeks to establish a comprehensive, clear and integrated framework which provides enhanced recognition of customary interests of whanau, hapu and iwi in foreshore and seabed, at the same time confirming that foreshore and seabed belongs to and is in principle accessible by all New Zealanders'.

"We have closely examined the policy and the Crown's claims for it. We have been unable to agree with any of the Crown's assertions about the benefits that will accrue to Maori. On the other hand, it does seem the policy will deliver significant benefits to others - reinstatement of (effectively) Crown ownership, elimination of the risk that Maori may have competing rights, and the ability of the Crown to regulate everything.

"As we see it, this is what the policy does:

* It removes the ability of Maori to go to the High Court and the Maori Land Court for definition and declaration of their legal rights in the foreshore and seabed.

* In removing the means by which the rights would be declared, it effectively removes the rights themselves, whatever their number and quality.

* It removes property rights. Whether the rights are few or many, big or small, taking them away amounts to expropriation.

* It does not guarantee compensation. This contradicts the presumption at law that there shall be no expropriation without compensation.

* It understates the number and quality of rights we think are likely to be declared by, in particular, the Maori Land Court under its act. We think the Maori Land Court would declare that customary property rights exist, and at least sometimes these would be vested as a fee simple title.

* In place of the property rights that would be declared by the courts, the policy will enact a regime that recognises lesser and fewer Maori rights.

* It creates a situation of extreme uncertainty over what the legal effect of the recognition of Maori rights under the policy will be. They will certainly not be ownership rights. They will not even be property rights, in the sense they will not give rise to an ability to sue. They may confer priority in competing applications to use a resource in respect of which a use right is held, but it is not clear whether this would amount to a power of veto.

* It is therefore not clear, not comprehensive (many important areas remain incomplete), and gives rise to at least as many uncertainties as the process for recognition of customary rights in the courts.

* It describes a process that is supposed to deliver enhanced participation of Maori in decision-making affecting the coastal marine area, but which we think will fail, because it proceeds on a naive view of the difficulties of obtaining agreement between Maori and other stakeholders on the changes necessary to achieve the required level of Maori participation.

* It exchanges property rights for the opportunity to participate in an administrative process: if, as we fear, the process does not deliver for Maori, they will get very little (possibly nothing) in return for lost property rights."

BREACHES & PREJUDICE

The tribunal found the policy breached article 2 and 3 of the treaty and it identified three areas in which it believed the breaches gave rise to "serious prejudice":

1. The rule of law is a fundamental tenet of the citizenship guaranteed by article 3. Removing its protection from Maori only, cutting off their access to the courts and effectively expropriating their property rights, puts them in a class different from and inferior to all other citizens.

2. Shifting the burden of certainty about Maori property rights in the foreshore and seabed from the Crown to Maori, so Maori are delivered for an unknown period to a position of complete uncertainty about where they stand, undermines their bargaining power.

3. In cutting off the path for Maori to obtain property rights in the foreshore and seabed, the policy takes away opportunity and mana, and in their place offers fewer and lesser rights. There is no guarantee to pay compensation for the lost rights."

RECOMMENDATIONS

"We note that the preference of claimant counsel was for us to recommend only the course proposed in option 1 below - namely that the Government should now agree to abandon its policy and engage with Maori in negotiating on the appropriate way forward. We strongly recommend that course but we have chosen as well to put forward a range of suggestions so whatever course the Government chooses, it is aware there are opportunities to enhance its performance in treaty terms."

Option one: The longer conversation: "Maori really want the process to begin again. They want the opportunity to sit down with Government and properly explore the options genuinely available."

Option two: Do nothing: "The risks of letting the courts' jurisdictions take their course are not unacceptable, given the strong and legitimate Maori interest in preserving the status quo. If real problems emerge from court decisions, such that others' interest may be jeopardised in a way that is not regarded as tenable, those issues can be addressed when and if they arise."

Option three: Provide for access and inalienability: "Maori do understand the anxiety non-Maori have about the availability of access to the beach. Maori are realistic. They do not believe any system will deliver to them exclusive possession of the beaches. Most do not even want it. There is room to manoeuvre around that issue."

Option four: Improve the courts' tool kit: "It was submitted to us that there may be difficulties with the range of instruments available to the High Court and the Maori Land Court when they come to consider customary title [under the present regime]. It could be left on the basis that the court simply makes a declaration about the nature and scope of the customary interests comprised in the title, and the declaration itself would come to be recognised as giving rise to a property interest."

Option five: Protect the mana: Sir Hugh Kawharu outlined to the tribunal how Okahu Bay is managed between Ngati Whatua and Auckland City Council under the Orakei Reserves Act. This, it was submitted, satisfies the Government's principles of access, regulation, protection and certainty without the need to vest legal ownership in either the Crown or the "people of New Zealand" and allows the mana of Ngati Whatua to "stand tall, intact, and protected".

Option six: Be consistent: "The tribunal refers to 'the apparent inconsistency' in the Government's preparedness to recognise the ownership interest of Ngati Tuwharetoa and Te Arawa peoples in the bed of their lakes, and its unpreparedness to vest any kind of title in foreshore and seabed in coastal peoples."