John Roughan: Want to own a bit of foreshore? Just light up the barbie

COMMENT

Ted Reynolds, who graced this newspaper for many years with droll personal charm as well as his gentle, penetrating prose, would have relished the Maori claim to beaches and seabed.

Ted, who died the week before last, would have taken the weighty judgment of the Court of Appeal, turned it into an illuminating tale of rough colonial justice and written with amused confidence that sensible people could resolve this predicament.

Reading the decision, his eye would have alighted on the name of Prendergast. Wasn't he the 19th-century Chief Justice who famously declared the Treaty of Waitangi a "nullity"?

In 1877 Prendergast and a fellow judge were hearing a case involving a Maori assertion of precolonial customary land ownership. They decided that the English common law recognition of native customary property in colonial territories was another nullity in New Zealand.

Maori, they decided, were too poorly organised to take advantage of it.

That raised the eyebrows of the lords in London. At the first opportunity the Privy Council ruled that it was "rather late in the day" for a New Zealand court to say there was no customary law of the Maori that courts could notice.

New Zealand, unlike Australia for example, had not been regarded as vacant property when it was colonised. (And even Australia now is acknowledging customary land claims.) New Zealand had been founded on the principle that the whole country was owned by Maori and would remain so unless parts of it were willingly sold to the Crown.

Despite the Privy Council's reminder, Parliament and the courts continued to act as though residual territory, such as foreshore and seabed, was automatically the property of the Crown, as it is in Britain.

The only customary title the courts recognised was over land that had not been submitted to the Maori Land Court for investigation, usually to divide it into individual titles. And a 1963 case had established that the only stretches of foreshore Maori could claim were those adjoining the few remaining tracts of customary land.

Not any more. On June 19 the Court of Appeal declared that Maori could lay claim to any part of the foreshore, and the seabed out to New Zealand's territorial limits, if they could show the territory had been the property of the iwi or hapu before 1840 and no law had since "extinguished" that possession.

The right to lay a claim is not a guarantee that it will succeed, say the five Appeal Court judges. Perhaps original ownership will be hard to establish, maybe something that happened since has extinguished it. The circumstances of each claim could be different.

And if a claim does succeed, the Court of Appeal has no idea what rights customary owners have. Not even the Maori Land Court seems to have a ready definition of the precise property rights and interests people held under precolonial custom.

Chief Justice Sian Elias notes that legislation since 1909 has prevented Maori owners of customary land from taking action in the courts to prevent trespass or claim damages for it. They rely on the Crown to enforce their exclusive use.

On the foreshore right now the Government is talking relentlessly about customary "rights" rather than ownership, as though the whole issue is about gathering pipis or launching a waka. Read the judgment: the issue is ownership, nothing less.

But who suggested that the Government should interfere at all? It is times like this you discover the limits of a law-abiding society. The five judges who issued this decision could very well make up the country's highest legal authority when the Government abolishes appeals to the Privy Council.

With this decision they have not created a new property right, they have acknowledged a basis of ownership that was acknowledged by the law setting up this country. It is outrageous to presume that Parliament could cancel it.

At least the test case seems certain now to go to the specialist court, although next week the Government will probably reveal some deal with its Maori members to pass a legislative decree stating that customary ownership, where it is granted, cannot exclude the public from lawful recreational activities.

That could leave iwi as landlords of ports, marinas and shellfish farms, which might not be so bad. Like any form of privatisation, it could generate competitive benefits for the economy.

It could take years for the Maori Land Court to resolve a single claim to the foreshore. But the possibility of customary ownership is there now. Maori know it, we all know it.

There are bound to be incidents where it is asserted on the ground regardless of the law's progress.

So here is an afterthought. If the Crown wants to assert public ownership of the foreshore, why not do so now on Maori terms? If customary title is part of our property law, let everyone take advantage of it.

Customary title is essentially a recognition of property acquired under precolonial methods of acquisition.

Those methods, from what we read, were usually invasion, conquest and settlement, signified by lighting fires on the claimed land.

There seems to me no reason that Maori should be the only ones to take advantage of those methods. Why should the Crown not claim ownership of the coast on the basis that Ngati Pakeha have been occupying the land and using the sea for up to 160 years now?

That is a period of continuous occupation a good deal longer than many iwi had been in residence of the land they owned in 1840 after the Musket Wars. And Non-Maori have lit a good few barbecues on the beach since they arrived. Just a thought.