Thursday March 3rd

Enironment Aotearoa 4 Green on the Foreshore?

In January 2011 it all looks a bit daunting on the Coastal and Marine (Takutai) Bill. Labour have withdrawn support. Hone Harawira from the Maori Party seems to have done the same for different reasons and there seems to be unease within the National Party.
John Key has said that if the Bill cannot be passed into law then the status quo will prevail.
Forgotten for some time by the media at large has been the position of the Greens. They say that the Foreshore and Seabed Act of 2004 needs to be repealed and Maori access to the courts restored.
Metiria Turei, Maori spokesperson for the Greens said at Omaka Marae in May 2009 that the position of the Greens was that Te Ture Whenua Maori of 1992 might be amended so that it becomes impossible to prevent Maori customary land being converted into freehold title.
Pointing to such gross abuse as the vesting of Te Whaanga Lagoon in the Chatham Islands in the Crown, Metiria Turei who became co-leader of the Greens shortly after the Omaka marae press release said that public access to the foreshore and seabed was never an issue. But it had been used by Labour and National to whip up opposition to Maori having access to the courts for the investigation of their customary title.
On the face of it the Green solution if such it might be called is a conservative one. Such land as is now in customary title remains in Maori hands. This solution misses the momentum that might have been there in 2003 when iwi like Ngati Apa were testing and winning in the High Court the battle for access to the foreshore and seabed. Things would be frozen for iwi if the Green solution was applied. Iwi would be no better and, on the face of it, no worse off.
Does the Green solution apply to both territorial customary rights and to customary rights orders as seen in the Nga Hapu o Ngati Porou case and the Ngati Pahauwera cases? Ngati Porou with territorial customary rights and Ngati Pahauwera with the customary rights order appear to have gone to court and then gone on to directly negotiate with the crown. Does the Green solution make this process easier?
A set of precedents in these cases would allow a better consideration of the position taken by the Greens as such precedents might perhaps take matters beyond Te Ture Whenua Maori. For example if any of the decisions over territorial customary rights or customary rights orders applied to control of resources such minerals found or the generation of power at harbour mouths then this might not be covered by Te Ture Whenua Maori.
A similar problem with the Green solution is what happens when there are new factors as with the establishment since 2004 of mineral exploration zones with licenses that do not involve the iwi. It might be asked whether one way forward might have been an amendment to the Crown Minerals Act 1991 so that iwi interests are taken into account on a significant and consistent basis.
There are possibly implications here for iwi in the latest decision by the government in early 2010 to allow mining on Department of Conservation land. The iwi interest in such land is like the iwi interest in the foreshore and seabed in many respects.
The Green solution then would be as much an amendment to if not an endorsement of the existing Foreshore and Seabed Act 2004. The amendment would be simply that freehold title is not possible for Maori customary land. Two Acts would effectively be amended to that effect, Te Ture Whenua Maori Act of 1992 and the Foreshore and Seabed Act 2004.
There might be other legislation affected as the main agent that might effect freehold title as things stand is the Crown and there might be constitutional and sovereignty issues pertaining, say, to public safety, the taking of land for purposes to do with war and so on.
Patchy as it might be the Green solution to the foreshore and seabed issue might be close to where things end up. Even if the Coastal and Marine(Takutai) Bill is passed early in 2011 the chances of it being amended later seem high. Any such amendments would more than likely be in the direction of what the Greens are talking about.


Written by Peter Cleave
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