Friday March 4th

Environment Aotearoa 5 Details of Foreshore Bill




One feature of the Coastal and Marine Area (Takutai Moana) Bill is that of a common space on the foreshore and seabed. This is an old concept repackaged and rephrased as something new for iwi and others in Aotearoa and is presented as a solution to other ideas of land and sea ownership and tenure. The Bill has the idea of a coastline that no-one actually owns but which is a shared territory. This is a change of scale. The common area in this case is not a plot at the back of the village where people grow cabbages and compare cauliflowers. It is the whole coastline.
Its almost an antiquarian English model. There will be a commons but just as there were departures for the nobility in England where the lord of the manor might have been free to hunt foxes every third Saturday while others may only have been allowed to watch, there will be variations around the coast of the country in regard to customary title. In the main these will be quaint arrangements regarding the collection of shellfish for events and not things that affect recreational use of the foreshore and seabed. We seem to have come a long way to have gone back so far. And for all that the history of enclosures and commons is not all rosy…
The commons always gives a sense of collective identity though and the scale of all this could change the way we think of ourselves.
At this stage it seems that only the arrangements with Ngati Porou will break the ring of the commons around Aotearoa in any significant way. The research of Tracey Whare on the Ngati Porou arrangement with the Crown (Whare, 2010) shows the complexity of the customary marine title and also shows the need to create new arrangements with local councils that is required through the gaining of customary marine title.
Whare says regarding the Bill regarding the Hapu of Ngati Porou;
Given the (FSA Foreshore and Seabed Act) premise that the public foreshore and seabed is vested in the Crown and that Maori have no right to compensation is this Bill the best that could be achieved? Does the tweaking of existing decision making processes simply mean business as usual? If so, then all the concerns around the FSA continue to be played out in this Bill. Given the Government’s previous negotiation processes, it also sets the precedent for future negotiations with iwi and hapu. With the government’s decision to review the RMA, the FSA and the proposed constitutional review, it remains to be seen what effect those reviews will have on this Bill. If the Bill is enacted its implementation will be closely monitored by all even more so by its supposed beneficiaries.
The Foreshore and Seabed Act: Five years on, where to from here?
Tracey Whare
In Maori and the environment:Kaitiaki Edited Selby, Moore and Mulholland Huia Publishers 2010: 59-75
Tracey Whare also mentions pouwhenua instruments.
Whare seems to suggest that local councils such as that in Gisborne and on the East Coast actually get a lot out of the arrangements with iwi regarding customary title.
One of the issues before iwi in the Marine and Coastal Area (Takutai Moana) Bill 2010 is that iwi would want to explore with the Crown the implications of the coastline being a common space. Iwi would want to explore with the Crown the national implications of a commons around the whole of New Zealand including places like the Chatham Islands and Stewart Island (except for that part of the foreshore currently held by others under private title). Iwi would like to explore with the Crown the implications of customary rights and the implications of customary marine title in their areas and the possibilities and probabilities involved. Iwi would also want to be clear about the Crown’s understanding of mana tuku iho in Clause Four.
Beside the broad principles involved iwi would want to have a clear, shared understanding with the Crown on the Bill on a clause by clause, detail by detail basis.
In the Preamble to the Marine and Coastal Area (Takutai Moana) Bill it is said;
‘This Act takes account of the intrinsic, inherited rights of whānau, hapū, and iwi, derived in accordance with tikanga and based on their connection with the foreshore and seabed. It translates those inherited rights into legal rights and interests that are inalienable, enduring, and able to be exercised so as to sustain all the people of New Zealand and the coastal marine environment for future generations.’
A response might be that a considerable amount has, in fact, been lost in translation and what follows sets out to explain why and how. To begin with the idea of the commons is examined, locally and then nationally. Secondly the concept of customary rights is examined and then customary marine title. Mana tuku iho is considered and then there is a consideration of the Bill looking at a range of details. Finally there is a conclusion referring back to the Executive Summary at the beginning.
At the outset there is a need to consider where the 2004 legislation fell short for many people and the need for repeal and a new bill. The 2004 Act amounted to a confiscation of iwi rights to the foreshore and seabed as it took away title and vested it in the Crown on behalf of ‘all New Zealanders’.
In many ways the act was discriminatory because it required iwi to allow access over areas of foreshore it had an interest in but did not place the same responsibility on people with no iwi affiliations. An inequality of obligation was set up by the 2004 Act.
The Act was also discriminatory because it denied iwi access to the Courts to seek clarification of rights. The 2004 Act created a basic inequality of legal opportunity and a replacement piece of legislation was sought that removed the possibility of confiscation and was non-discriminatory.
A path of development at law for Maori regarding the foreshore and seabed had begun to open up in the early 1980s and had continued until the Ngati Apa decision of 2003. After that things were put into reverse so that Maori interests were hampered and denied. The hope was that the repeal of the 2004 legislation and this new legislation would once again open up that earlier path of positive development. This has not happened and in fact Iwi consider that the proposed legislation maintains the direction and course set by the 2004 legislation.
This has happened partly through the introduction of new law such as that pertaining to the common space. This has the effect of making it seem as though new things are happening whereas matters remain essentially unchanged and iwi are left, in some respects, worse off.
For example it is a little perplexing to note that the new, statutory, ‘customary marine title’ only exists where a particular part of the foreshore and seabed has been exclusively used and occupied since 1840, and yet the title itself does not provide for such exclusive rights. If the exercise of customary rights is demonstrated by exclusive use and occupation, then exclusive use and occupation ought to be able to be recognised under this new form of customary title. Alternatively, if exclusive use and occupation is not part of customary title, why would iwi need to prove exclusive use and occupation to have that title recognised? This suggests that the legislative ‘customary marine title’ is to be quite different from common law customary or aboriginal title, as applied in places such as the United States and Canada, where the general principle has long been to give legal recognition to the customary rights and activities that can be identified and demonstrated.
In the example above there is a kind of legal legerdemain where it looks as though new legislation offers solutions but on inspection it turns out that the law involved has been seriously weakened from its original use at a point away from Aotearoa/New Zealand. This example and the false hope that it offers sets the tone of the Bill in many respects.
The common space is a legal fiction denoting an area that nobody owns and within which no-one is allowed to have new private title. The Bill indicates the term ‘common space’ only applies to area in which Maori might have an interest and specifically excludes the large majority of foreshore currently held by others under private title. With regard to their coastlines iwi would want to know how much of this would be classified as common space and how much is in private hands. Similarly it is appropriate that iwi along with other New Zealanders know how much of the coastline is actually in private hands and to what exactly the Marine and Coastal Area (Takutai Moana) Bill applies.
Iwi would also want to know how arrangements for defense might affect the notion of the common space. If New Zealand were to be invaded would matters to do with the common space, customary marine title and customary rights be affected?
Traditionally the notion of common space does not really have a basis. All land was the domain of one iwi or another. There may have been boundary issues but the idea of a commons or even a ‘no man’s land’ is not evidenced to an great extent.
There is also the relation of the commons to the adjacent areas. In one case there are a series of coastal dune lakes stretching from Kaikokopu near Himatangi to Pukepuke near Tangimoana. Rangitaane people lived in a state of interaction between these lakes and the foreshore and seabed and it is impossible to tease out one part of this ecology from another.
To take Kaikokopu as an example, Oahura was a pa that was actually in the lake at Kaikokopu. It was a pa whawhai, a fighting pa. There were eels, tuna, birds, manu and whitebait in the lake. Kaikokopu and Oahura were midway between the mouths of the Rangitikei and Manawatu rivers near Himatangi Beach on the west coast.
Oahura could be said to have been the perfect nohohanga. It was behind dunes and, to some extent at least, out of the wind. It was near the sea and the kaimoana there. There were forests immediately inland and Kaikokopu gave way to a fresh water stream which met with the salt water at nearby Himatangi beach. Oahura is a model for Rangitaane settlement along the Manawatu Coast. People lived just back from the wild West Coast close to fresh water. It is impossible to split this dwelling space into the coastal marine and coastal dune areas. Rangitaane lived in both as one.
Customary marine title is a new beast at law. It is neither the customary title or tikanga recognised in Maori law and lore nor even that recognised in the law of aboriginal title. It is also quite specifically defined in the Bill as being less than freehold title.
Customary marine title is therefore a discriminatory title in that others may have freehold in their land contiguous to the moana but Iwi and Hapu can’t – it is a subordinate title predicated on a notion of essentially subordinate Maori rights.
In a Press Release of 6 September 2010 the Attorney General said;
"The Marine and Coastal Area Bill guarantees the rights of all New Zealanders to the marine and coastal area. These include free public access, which last year's Ministerial Review Panel described as a birthright of New Zealanders, and the opportunity for Maori to seek recognition and protection through the courts of customary rights. This includes the right to seek customary title to specified areas that have been used and occupied exclusively since 1840. Any customary titles recognised remain subject to the public right of access. Our rights as New Zealanders in the marine and coastal area are not in conflict with each other. This Bill reflects that reality. Recognising and protecting those rights does not require the right to exclude others. Where customary title can be proved, it will sit alongside the common area rights of public access, fishing, navigation, and existing uses. Customary title does not exclude these guaranteed public rights; it includes them. This Bill, unlike the Foreshore and Seabed Act 2004 which it replaces, treats all New Zealanders including Maori without discrimination and recognises that we all have legitimate and longstanding interests in this part of our heritage. The Bill also protects and in some cases extends existing rights associated with navigation, fishing, aquaculture and the operation of ports. This Bill provides a framework for recognising interests and rights in the marine and coastal area that is fairer and more durable than its predecessor."
Iwi would question the last sentence in the Attorney General’s statement. There are also many instances of discrimination in the Marine and Coastal Area (Takutai Moana) Bill 2010. Similarly the idea that the rights of New Zealanders are not in conflict in the Bill is wrong.
There are many ways in which the power of councils seems to be strengthened by the Bill and these involve the proposed law on structures, reclaimed land and the development of ports as well as in relationships with groups gaining customary marine title.
The research of Tracey Whare on the Ngati Porou arrangement with the Crown (Whare 2010) noted earlier shows the complexity of the customary marine title and also shows the need to create new arrangements with local councils that is required through the gaining of customary marine title.
Following Tracey Whare’s work iwi would want to ask whether the Ngati Porou Bill and the effect of customary marine title would work to strengthen Councils. In the case of Ngati Porou it is the Gisborne Regional Council that is discussed. Each iwi has its own relationship with the local council and it would appear that something similar to the Ngati Porou-Gisborne City Council relationship would emerge.
Tracey Whare also mentions pouwhenua instruments and iwi would want to see an exploration of this way of naming and claiming and the possibilities in the Manawatu coastline.
It seems likely that those iwi that succeed in gaining marine customary title will have a well established and good relationship with their local councils. It might be said that for co-governance to work then a degree of shared social capital, a history of respect between the parties will be required.
The Bill restores right of access to the courts. It establishes a new ‘customary marine title’ in the ‘common space’ that iwi and hapu may seek to have recognised in court. However to establish the title iwi would have to prove continuous use of the relevant area since 1840. Because the ability of some iwi to use the foreshore since 1840 has been taken away or limited by actions of the Crown it is going to be very difficult for it to meet the test. It might be said that this is a cynical test, a test almost impossible to meet as many or most iwi and hapu have been denied undisturbed possession since 1840.
So while proper legal process, due process, as it were, has been restored this has been done in a way that maintains the basic inequality of access.
Regarding customary rights iwi would want to consult with the Crown about the definitions of the meaning of protected customary rights from Clause 53 onward.
The explanatory note to the Bill states that “the mana tuku iho of iwi and hapū is explicitly recognised in the Bill”, though the only reference to mana tuku iho in the Bill is contained in Clause 4, which sets out the purpose of the legislation. Mana tuku iho is very important and the Bill could have referred to the points below.
A very important part of mana tuku iho is intellectual property. There is very little in the Bill applying to the ownership of flora (cf Wai 262) and nor is there much on such matters as copyright or intellectual property generally.
Another matter not discussed or referred to in the Bill is that of pouwhenua. These are markers of mana and are very important. It is hoped by iwi that factors like this are considered as the Bill is read in the House.
Research and the processes such as permissions to proceed and agreements to follow tikanga as well as blessings at the outset of research are very important to iwi. Also the science involved in the research is something that iwi would want to peruse and comment upon. Research on the coastal marine area is not discussed at any length in the Bill.
Similar points might be made about policing of resources and measurement of health indices on the foreshore and seabed (cf Tipa and Tierney 2006). Iwi would want to have mana and standing in these areas.
Mana tuku iho ki a Rangitaane applies to all matters in the Bill to do with wāhi tapu protection rights, protection of wāhi tapu and wāhi tapu areas, wāhi tapu conditions, the appointment of wardens and the implementation and enforcement of wāhi tapu conditions. It also applies to ngā taonga tūturu, new found treasures from the past or from the present.
Mana tuku iho is also very important in planning documents. Iwi would want editorial input and rights to create and assist with prefaces and conclusions using their own sayings and metaphors as they see fit.
There is a lot in the detail of the Marine and Coastal Area (Takutai Moana) Bill, 2010. While not all clauses and details are considered a fair number are and the intention is to respond to the sweep of the Bill through its minutiae.
To quote from the opening paragraph of the Bill;
‘The (the Bill) repeals the Foreshore and Seabed Act 2004 (the 2004 Act) and restores the customary interests extinguished by that Act.’
It is important to recall the history prior to 2004 and how complex the matter of customary title has been. It is going much too far to say that the Bill restores customary interests. It promises that but the tests and conditions are in fact prohibitive.
The Introduction and the Bill itself emphasise words and phrases like ‘public right’ and ‘commons’.
This theme is continued in the discussion of access;
‘The Bill explicitly continues rights of public access in, on, over, and across the common marine and coastal area. It also provides that nothing in the Bill affects existing commercial, recreational, and customary fishing rights and it preserves rights of navigation in the area. These rights of public access, fishing, and navigation are subject only to restrictions authorised by legislation.’
At the same time the Government says it is interested in equity for all and has sought in the proposed new legislation to arrive at a ‘regime that equitably balanced all interests in the foreshore and seabed’.
Looking at the Bill on a clause by clause basis some provisions like those of Clause 11 remain to be seen. This is one of the new parts of the legislation and is apparently based on Canadian law. There is very little precedent for this law in New Zealand and iwi would like to see and understand local precedents and ways in which the common marine and coastal area (the cmca) would operate.
Clause 12 might work so that interest groups such as Forest and Bird acted quickly to vest areas ahead of iwi. While Orders in Council might not be permitted once customary marine title had been given there might be a rush to secure areas as reserves and the like so preventing iwi from making application. The recommendation of the Mister of Conservation applies and hopes that this office might not be subverted by interest groups.
Iwi would want to see more detail on Clause 13. This pertains to accretions and erosion
Clause 15 is to be welcomed. This restores any customary interests in the cmca and gives them legal expression in accordance with this Act. However this is just the first step and there is a lot more to be done to give iwi proper standing in terms of the foreshore and seabed.
Clause 16 pertains to roads and this area seems messy and potentially conflict ridden. Who controls the use of vehicles and speeding in the cmca?
Iwi might take extreme issue with Clause 17. Iwi might want ownership of all minerals in or on the foreshore and seabed of the coastline.
Iwi might want to see more detail on Clause 18 which provides that, in certain cases, parts of the marine and coastal area become part of the cmca.
Regarding Clauses 19 and 20 iwi would want to see protection of their rights regarding structures to be very clearly set out. The Bill says;
‘Structures that have been abandoned will vest in the Crown so that it can ensure that health and safety laws are complied with.’
Iwi would want all aspects of this process to be very well clarified so that iwi members were not disadvantaged in any way.
Regarding Clause 20 the titles in which structures are registered with the councils would need to be assessed regarding iwi interest in them.
Regarding Clauses 23 and 24 iwi would want to be kept appraised of anything to do with changes in freehold title.
Iwi would want to be appraised of any ways in which claims might be prevented including through adverse possession and prescriptive title.
Clauses 25, 26 and 18 would seem to strengthen the hand of the Minister of Conservation. Redress cannot be sought, under this Bill, via the courts.
Iwi would want more detail on the ways in which clauses 27 and 78 would work regarding access and waahi tapu.
Regarding Clause 28 iwi would want more detail on exactly how navigation in an area of customary marine title and elsewhere would work.
Clause 30 also increases the power of the Minister of Conservation. Iwi would want to look at such governance models as that put forward in the recent Report of the Land and Water Forum (2010:48). In this model the Iwi works with the Minister in the first instance.
Regarding Clause 31 iwi would want input into the monitoring of structures. By whose definition might structures threaten the environment?
Clauses 32-47 apply to reclaimed land. Iwi would want more clarity around reclaimed land from their point of view. This especially applies to reclaimed land gaining freehold title as discussed in Clauses 45-47. Iwi welcome the moves in the Bill regarding reclaimed land but would like to see more input in the planning process before the land is reclaimed. To encourage development, the Bill provides that land reclaimed from the common marine and coastal area will vest in the Crown and the reclaimer of the land can apply to the responsible Minister for a fee simple title or other interest in the land (for example, a leasehold or coastal permit). Anyone who plans to sell a fee simple title in reclaimed land will be required, first, to offer it to the Crown. If the Crown decides not to acquire the reclaimed land, the seller will then be required to offer it to any iwi and hapu that exercise customary authority in the area. Once these rights of refusal have been exhausted, the owner of the reclamation will be able to sell it to any third party. Iwi would want to be appraised of every step in this process.
Clauses 48-59 set out the full extent of the legal rights and interests that arise from customary interests in the common marine and coastal area. These Clauses were considered above. Customary rights would have to be exhaustively defined rather than simply being those such as launching waka and gathering hāngi stones that were exercised in 1840. The Bill argues that these customary rights are not exclusionary and do not stop others from legitimately carrying out activities. Iwi would want to explore this argument thoroughly.
Clauses 49-52 deal with iwi and hapu participation in conservation processes in common marine and coastal areas. Iwi would want more detail on these clauses and would want to see the Minister working with the iwi in the first instance as seen in the model set out in the Report of the Land and Water Forum (2010:48).
Regarding Clause 57 iwi would want control over petroleum resources and disputes all clauses in the Bill such as this which would cede absolute ownership if any given mineral resource or the power to grant licences for exploration of such resources to the Crown.
Clauses 60-91 pertain to customary marine title groups. The comments made above on customary marine title apply here especially those references in the commentary on the Ngati Porou situation by Tracey Whare.
Iwi have grave misgivings about the concept of nationalized minerals. The matter is set out in Clauses 82- 3 and one way forward might be a thoroughgoing review of the Crown Minerals Act 1992.
Clauses 84-91 regarding planning documents are very important to iwi. Access to all facets of planning documents at councils is critical in iwi planning and planning document processes.
Matters to do with recognition of customary interests as discussed in Clauses 92-5 and including Orders in Council are of the utmost significance to iwi and would need to be carefully followed and perused at every stage.
While the Bill removes the idea of vesting the foreshore and seabed in the Crown it still takes Iwi and Hapu interests and vests them in a new construct called a ‘common space’ in the marine and coastal area. The 2004 Act amounted to a confiscation. As far as many iwi are concerned this confiscation remains in place because it is still a taking from iwi and hapu. Where iwi land had been vested in the Crown before it is now vested in a common space.
Regarding rules around the common space the Crown says that on the one hand it is a common space no-one owns and on the other it outlines in great detail the authority and control the Crown has over it. For example there are specific provisions for absolute Crown ownership of certain minerals in the ‘common space’ with the associated power to grant licenses for those minerals. The Bill asserts Crown ownership rights over an area that no-one is supposed to own.
Iwi would be concerned if there were differences in access to the foreshore and seabed that discriminated against them. While iwi have always been willing to allow access there is an expectation that people without iwi affiliations in similar situations be required to do the same. Under the Bill they do not have to do so, which thus maintains the basic inequality of obligation set out in the 2004 legislation.
There may be difficulty with the setting of time limits in applications for recognition orders as set out in Clauses 98 to 107. The Bill sets a time frame of six years for Maori to prove their so-called ‘customary title’. This would seem to imply that a right or interest can only exist if people can establish it within a certain time limit. Rights are meant to be universal and their universality depends upon them being free of time constraints. Iwi may see this as introducing another discriminatory process applicable only to Maori.
Regarding customary marine title there would seem to be wide variations amongst iwi and hapu around the country. While direct negotiations can be held with the Crown they will in practice only be available to those few iwi and hapu that can meet the relevant test. Under the tests proposed most Maori will not have customary marine title and the proposed legislation will therefore be divisive and create further inequalities. A given iwi could be left with a situation where the iwi to the north and south have arrangements regarding customary rights and customary marine title at variance with those that that the iwi itself has.
There is a curious use of the word ‘exclusive’ in the Bill. It is alright for an iwi or hapu to have had exclusive rights in the past. In fact they need to demonstrate this to get ‘customary marine title’. But once they have got ‘customary marine title’ then they do not have exclusive rights.
Iwi would want to explore with the Crown the implications of the coastline being a commons. This will involve a great deal of detail ranging from that pertaining to structures and reclaimed land to that involving the differences between any privately owned land and the proposed common space. There will also be a need to state the iwi’s ownership of mineral resources, navigational matters and other things mentioned above.
Proceeding from this the iwi would want to explore with the Crown the national implications of a commons around the whole of New Zealand including places like the Chatham Islands and Stewart Island (except for that part of the foreshore currently held by others under private title). Will, for example, iwi be included in matters of national significance to the coastline and have membership on appropriate committees?
Iwi would like to explore with the Crown the implications of customary rights and the implications of customary marine title and the possibilities and probabilities involved. As argued in Section To above this might mean a much more detailed arrangement with local or regional Councils. Again a reference might be made to the model set out in Report of the Land and Water Forum (2010:48) and would like to see the Minister working with the Iwi in the first instance.
Iwi would want to be clear about the Crown’s understanding of mana tuku iho in Clause Four. A number of serious examples were given above in Section Three and it is hoped to see more in the Bill on mana tuku iho as it proceeds through its readings.
Iwi would want to be very clear about all tests set out or implied in this Bill. This includes any and all arrangements to do with and variations from the threshold test of no substantial interruption
Iwi would want to have a clear shared understanding with the Crown of the Bill on a clause by clause basis so that the way these operated with respect to the coastline was known to both parties. The expression ‘The Devil is in the detail’ comes to mind. There will need to be a degree of shared social capital, of trust between parties over a period of time for such matters as abandoned structures and reclaimed land to be properly worked through.
A general query is whether the Bill is just and fair to all concerned. The answer is that the Bill is mixed. Many iwi do not, as yet understand and agree with the idea of a commons on the coastline and around the country. They are not in the position of, say, the Hapu of Ngati Porou, where the customary marine title and the steps involved to get it are well set out and achievable, The same applies to customary rights. Complicating matters is the question of new and untried law.
Another general query is about title. Throughout its course the Bill seems to treat Maori interests as a lesser form of title than freehold title.
A final general query is whether the Bill removes the injustice of the 2004 legislation or does the Bill actually compound it. It would be of concern if the proposed Bill actually consolidated the main inequities of the 2004 Seabed and Foreshore Act. The Waitangi Tribunal found that Act to be problematic in terms of Te Tiriti o Waitangi and the United Nations Committee on the Elimination of Racial Discrimination held it to be racially discriminatory.
In the next edition of Environment Aotearoa reaxtion to the Bill will be discussed.


Written by Peter Cleave