David Williams: Controversial legislation needs further discussion

COMMENT

The Government claims to have been surprised by the Court of Appeal's Marlborough Sounds decision on possible customary rights over foreshore and seabed lands.

Why was it so unprepared? And why must the Foreshore and Seabed Bill, which will be debated in Parliament for the first time today, be pushed through?

On the question of aboriginal title rights, the Government's advisers ought to have been well informed on judicial developments in the common law from courts in Commonwealth countries such as Canada and Australia.

Other commentators, including my colleagues Professors Jock Brookfield and Jim Evans, have noted that there was nothing particularly novel about the Court of Appeal's reasoning on common-law recognition of aboriginal title rights.

Government leaders, however, claim the decision came out of left field because legislation such as the 1977 Territorial Sea and Exclusive Zone Act unambiguously vested in the Crown ownership of the seabed and the subsoil of submarine areas. No one could have guessed, it is said, that this clear language left any Maori customary rights intact.

The Court of Appeal stated that the assertion of Crown ownership was clear enough. Nevertheless, Crown ownership might still be qualified if Maori could prove the continuing existence of customary rights. Those customary rights could be extinguished by consent or by statutory confiscation, but an act would have to be clear indeed if confiscation without compensation was intended by Parliament.

In the discussion of whether customary rights survived the Territorial Sea and Exclusive Zone Act, no attention seems to have been paid to the report of the Waitangi Tribunal on the Waiau power station claim in February 1978.

The first hearings of the tribunal were held in mid-1977. "Wai 1" was the claim of Joe Hawke concerning prosecutions for the gathering of seafood without a permit to feed people on the Maori land march in 1975. "Wai 2" was a claim by the people of Whatapaka marae over a proposed thermal power station that would have seen cooling ponds placed on the bed of the Manukau Harbour near their marae.

In the face of pressure from many quarters, the Government dropped plans to go ahead with the Waiau power station. For that reason, many people may have taken little note of the tribunal's subsequent report.

The tribunal, then chaired by Chief Judge Gillanders Scott, took note of the legal submissions prepared for the Whatapaka people by Peter Horsley. The focus was on customary fishing rights and whether those rights had been extinguished. The tribunal quoted in full the Crown ownership section of the newish Territorial Sea and Exclusive Zone Act.

It observed: "Doubtless the need to conserve New Zealand's valuable fisheries was in the minds of the Legislature when it introduced the Territorial Sea and Exclusive Zone Act ... It may also be that the act was considered necessary because there is no common-law right beyond mean low-water mark. But having made those observations, the tribunal observes that the Territorial Sea and Exclusive Zone Act in no way purports to affect any existing customary fishing rights."

Nor, the tribunal wrote, did the 1911 Manukau Harbour Control Act purport to affect those rights.

One of the problems of failing to look at the law in a holistic manner is that the tribunal's remarks might have been consigned by Government officials solely to the fisheries law area.

But it does not take much forethought to suppose that if customary fishing rights in the Manukau Harbour mudflats area survived the 1977 act, there might well be other customary rights to the foreshore and seabed that were similarly unaffected by the apparently unambiguous words vesting title in the Crown.

There was no good reason for the Government to be shocked by the Court of Appeal decision last June. There was no good reason to interrupt due process and push for a legislative intervention.

Today's disarray in Government ranks may reinforce the adage that it pays to take heed of history or run the risk of repeating the mistakes of the past.

In 1977 the Electricity Department did not see the implications of the customary rights argument against its Waiau power station proposal. The Government ought not to get away with the argument that it had no reason to know that the Court of Appeal might decide as it did.

It is not too late to follow the more recent recommendations of the Waitangi Tribunal that there should be a "longer conversation" between the Crown and Maori on these issues.

* Dr David Williams is an associate law professor at Auckland University.