New Zealand foreshore and seabed controversy
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The New Zealand foreshore and seabed controversy is a debate in the
Origins
Ngati Apa v Attorney-General
In 1997, an application was made to the
- "The definition of 'land' in Te Ture Whenua Maori Act 1993 did not necessarily exclude foreshore and seabed";[2]
- "The title vested in the Crown was native title";[3]
- Various Acts had influence over but did not extinguish property rights;
- The Maori Land Court had jurisdiction to determine "an investigation of the title to the land ... under s 132 and an order determining the relative interests of the owners of the land".[4]
In Re the Ninety-Mile Beach
The Court of Appeal overturned a line of precedent dating back to the 1877 decision in Wi Parata v Bishop of Wellington, and affirmed by the New Zealand Court of Appeal in the 1963 Ninety Mile Beach decision. These early decisions held that because of circumstances unique to New Zealand, Māori land ties were so weak that they could be extinguished through such indirect routes as unrelated phrases in legislation or through the Māori Land Court’s investigation of dry land adjoining the foreshore.
In its ruling, the Court of Appeal found that "native property rights are not to be extinguished by a side wind.... The need for 'clear and plain' extinguishment is well established and is not met in this case. In the Ninety-Mile Beach case, the Court did not recognise that principle of interpretation".[5] The ruling was foreshadowed by academic work during the late 1980s and 1990s, which argued that the Ninety Mile Beach case was wrongly decided.[6]
Initial responses
The ruling granted only the right to pursue establishing an interest. Experts such as Paul McHugh of Cambridge University stated that this was unlikely to result in full exclusive ownership, but these assurances were not strong enough to counter the perception that the door was now open for Māori to claim title to the entire coastline of New Zealand through the Māori Land Court.[citation needed] The prospect of a successful claim was reported as having created considerable hostility in many sectors of society as New Zealand has a strong tradition of public access to beaches and waterways and this was perceived as being under threat. The prime minister, Helen Clark of the Labour Party, announced that the government would legislate to ensure public ownership of the foreshore and seabed.
At the same time, however, the government was strongly attacked by the opposition National Party, led by Don Brash. In sharp contrast to Te Ope Mana a Tai, the National Party claimed that the government's proposals were too favourable towards Māori. While the government's plan did indeed vest ownership in the state, they also incorporated provision for Māori to be consulted over matters relating to the foreshore and seabed. The National Party claimed that Māori were to be given too much control, and that the government was giving rights to Māori over and above those possessed by other New Zealanders.
Once the Government's policy framework was released, the Waitangi Tribunal held an urgent inquiry into the government policy. The hearing took place over six days in late January 2004, and a report was issued four weeks later. The tribunal issued a report that was highly critical of the Crown’s approach.[7][8] The Government response was equally sharp and critical, accusing the tribunal of ‘implicitly’ rejecting the principle of parliamentary sovereignty.[citation needed]. The Attorney-General, taking a more middle ground, conceded that the policy was prima facie discriminatory, but concluded that this infringement was "demonstrably justifiable in a free and democratic society" under section 5 of the New Zealand Bill of Rights Act 1990.[9] The Human Rights Commission took another view, arguing that the legislation was discriminatory and not justified by section 5.[10]
Ongoing debate
Although under attack from both sides, the government chose to press forward with its legislation, asserting that what it called its "middle way" was the only means of satisfactorily resolving the controversy. Criticism of the government, both from Māori and from opposition parties, continued to intensify, and the government began to lose ground in opinion polls.
On 27 January 2004, National Party leader
The government was also facing serious internal debate over its proposed legislation. Many of the party's Māori MPs were deeply unhappy with the government's plans, and raised the possibility of breaking ranks to oppose the legislation in Parliament. This left the government unsure of whether it had a sufficient number of votes to pass its legislation through Parliament. In theory, the government had a narrow majority willing to support its proposed bill, with Labour, the
On 8 April 2004, it was announced that the centrist-nationalist New Zealand First party would give its support to the legislation. New Zealand First's price for this support was that ownership of the seabed and foreshore would be vested solely in the Crown, ending the concept of "public domain" (vesting ownership in the public at large rather than in the state) that United Future had promoted. United Future withdrew its support for the legislation, but New Zealand First provided sufficient votes to make this irrelevant. It is believed that Helen Clark preferred United Future's "public domain", and this was acknowledged by United Future leader Peter Dunne, but United Future could not provide enough votes to guarantee the bill's passage, forcing Labour to seek support elsewhere.
One of the strongest critics of the bill within the Labour Party was Tariana Turia, a junior minister. Turia indicated on a number of occasions that she might vote against the government's bill, but for a considerable time refused to give a final decision. It was made clear that voting against a government bill was "incompatible" with serving as a minister, and that doing so would result in Turia's dismissal from that role. Turia was encouraged to either abstain or simply be absent when the vote was taken. On 30 April, however, Turia announced that she would vote against the legislation, and would resign (effective 17 May 2004) from the Labour Party to contest a by-election in her electorate. She was dismissed from her ministerial post by the Prime Minister the same day. Another Labour MP, Nanaia Mahuta, eventually decided that she would also vote against the bill, but chose not to leave the Labour Party. Mahuta had no ministerial post to be dismissed from.
On 5 May 2004, a hīkoi (a long walk or march — in this case, a protest march) arrived in Wellington. It had begun in Northland thirteen days earlier, picking up supporters as they drove to the capital. The hīkoi, which some estimated to contain fifteen thousand people by the time it reached Parliament, strongly opposed the government's plans, and was highly supportive of Tariana Turia's decision.[12]
Turia and her allies, believing that the time was right for an independent Māori political vehicle, established a new
On 18 November 2004, Tim Selwyn put an axe through a window of the electorate office of Helen Clark, an act he described as a protest against Helen Clark's handling of the issue.
Legislation
On 18 November 2004, the Labour–Progressive government passed the Foreshore and Seabed Act, which declared that the land in question was owned by the Crown. Māori can, however, apply for "guardianship" of certain areas. The act was highly contentious.
The government's foreshore and seabed bill passed its
The bill's passage through its first vote meant that it was then considered by a special select committee of Parliament, which heard public submissions on the matter. The select committee having allowed six months for submissions, reported back to the parliament in November that they had been unable to agree on a position and were therefore reporting back the bill with no recommendations whatsoever. The bill, slightly amended by the Government itself, passed its
On 15 December, the legislation was modified slightly after it was realised that as it was written, the act
The
Situation following the controversy
The foreshore and seabed issue, as part of the larger race relations debate, was one of the most significant points of contention in New Zealand politics at the time, and remains a significant issue for many people. The Labour government's popularity was severely damaged by the affair, although subsequent polls showed that it recovered its support and Labour was elected for a third term in September 2005.
While the act was widely criticised by Māori, some iwi have chosen to negotiate agreement within the bounds of the act. The first agreement made through the act was ratified by Ngāti Porou and the Crown in October 2008 (see below).
Special Rapporteur
In November 2005, following government criticism of the report issued by the
Member's bill
In October 2006, Tariana Turia introduced a
First foreshore and seabed agreement signed
The first foreshore and seabed agreement was ratified on 31 October 2008. The agreement was negotiated between people of the
Continued calls for repeal
Following a change of government with the election of National in November 2008, the Green Party continued to call for repeal of the Foreshore and Seabed Act 2004.[16]
National front bencher
Announcement of repeal
On 14 June 2010, Prime Minister
See also
References
- ^ Attorney-General v Ngati Apa [2003] 3 NZLR 643 at 95
- ^ Attorney-General v Ngati Apa [2003] 3 NZLR 643 at 2
- ^ Attorney-General v Ngati Apa [2003] 3 NZLR 643 at 3
- ^ Attorney-General v Ngati Apa [2003] 3 NZLR 643 at 96
- ^ Attorney-General v Ngati Apa [2003] 3 NZLR 643 at 154
- ^ (see, in particular, Paul McHugh "Aboriginal title in New Zealand courts" (1984), 2 University of Canterbury Law Review 235–265 and "The legal status of Māori fishing rights in tidal water" (1984), 14 Victoria University of Wellington Law Review 247-7 and Boast, "In Re Ninety Mile Beach Revisited: The Native Land Court and the Foreshore in New Zealand Legal History" (1993) 23 VUWLR 145)
- ^ Waitangi Tribunal, "Report on the Crown's Foreshore and Seabed Policy" WAI 1071 (2004).
- ^ Boast, Richard (2011). "Foreshore and Seabed, Again". NZJPIL. 9.
- ^ Attorney-General, "Report on the Foreshore and Seabed Bill" (2004) at [56]
- ^ Boast, Richard (2005). "Foreshore and Seabed". LexisNexis.
- ^ Suszko, Abby (2015). "One Law for All: Contrasting Visions of Equality and Rights in the New Zealand Foreshore and Seabed Debate". Law & History. 2: 60–88 – via HeinOnline.
- ^ Dr Pita Sharples (16 October 2006). "Loss and Grief – Uncensored". Speech to the National Association of Loss and Grief Conference. The Maori Party. Retrieved 2 December 2007.
- ^ "Foreshore and Seabed Repeal Bill". New Zealand Parliament. 12 October 2006. Retrieved 25 October 2006.
- ^ Young, Audrey (23 October 2006). "Turia's proposal shock to Maori". The New Zealand Herald. Retrieved 30 October 2011.
- NZPA. 31 October 2008. Retrieved 30 October 2011.
- NZPA. 17 November 2008. Retrieved 30 October 2011.
- ^ Trevett, Claire (20 November 2008). "Glad to be nation's most-sued person". The New Zealand Herald. Retrieved 30 October 2011.
- ^ "Foreshore replacement bill 'a fraud'". The New Zealand Herald. 6 December 2010. Retrieved 6 December 2010.
External links
- Official government website on the issue
- Ministry of Justice Marine and Coastal Area page
- Foreshore and seabed information page
- Te Ope Mana a Tai- a lobby group in favour of Māori ownership.
- A Primer on the Foreshore and Seabed - Written by Moana Jackson to provide some context on the bill.
- The Waitangi Tribunal report into the Foreshore and Seabed legislation
- Law of the foreshore and seabed – entry in Te Ara regarding the modern legal challenges surrounding the controversy
- T akutai Moana - Community Law online manual on the bill and its background and the rights it provides for.