Charging for the foreshore

I don’t know about you, but I have certainly been confused about ACT’s move to insert a last-minute clause into the new Marine and Coastal Areas (Takutai Moana) Bill (proposed replacement for the Foreshore and Seabed Act).

The purpose of the clause is to make it explicit that, if granted customary title, Maori may not charge for access to the foreshore. Maori angrily denied that this was ever their intention. The Nats said that it wasn’t possible to charge, but agreed to insert the new clause anyway. The Maori Party took offence, and considerable tension between the Nats’ two coalition partners (and of course within the Maori Party itself) ensued.

So what’s going on? Why would ACT (apart from being barking mad of course) risk destabilising the coalition for a clause that the government was claiming wasn’t necessary anyway? What exactly are the legal issues involved? Fortunately, Canterbury legal academic David Round has set it all out:

David Round: Unpleasant surprises loom in new seabed law

Something suspicious is happening. The Prime Minister and Attorney-General insist their proposed new foreshore and seabed law will allow free public access, and accuse Dr Hugh Barr of the Coastal Coalition of telling untruths when he disagrees.

But when the Attorney-General says he will nevertheless propose amending the bill in order to make things 100 per cent clear, the Maori Party threatens to abandon its support for the bill, Hone Harawira calling Act’s leader “a little fat redneck”.

Why might Maori be angry, if things were only to be made clearer and nothing were actually to change?

I will be more charitable to John Key than he is to Dr Barr, but I have to accuse him of being misinformed. Dr Barr is right. In its present form National’s bill can be interpreted to allow the public to be charged for access to any foreshore and seabed to which iwi, hapu or whanau have gained “customary marine title”.

If Chris Finlayson is unaware of that possible interpretation then he is not as good a lawyer as he thinks he is. …

Under Labour’s 2004 Foreshore and Seabed Act, Maori could claim something similar to customary marine title, called territorial customary rights, over an area, and might thereafter establish a reserve there. But section 40 of the act specifically declared that the reserve was held for the common use and benefit of the people of New Zealand, and also that no one was “entitled to charge or collect fees or other form of payment” from its users.

There is no equivalent of this in the new bill. The point is this: a well-established and sensible rule of statutory interpretation says that where one statute replaces another, and the new statute does not repeat a particular provision in the old one, then there is a presumption that that provision no longer applies.

Why was this particular provision left out? The answer must be, because Parliament no longer intended it to apply.

One statute forbids charging – its replacement is silent. What are we to conclude?

It is simply impossible to believe that the omission of an equivalent of section 40 from Mr Finlayson’s bill was by accident. It must have been deliberate. Why?

Round also highlights another issue relating to access:

But all that aside, the bill is absolutely clear that when Maori claimants obtain their customary title, they will be able to designate areas as “wahi tapu”, and the public may be wholly or partly excluded from these areas, or allowed entry only on conditions.

Section 77 specifically speaks of “prohibitions or restrictions on access”. No one can say what these areas will be. They need not be burial grounds, or the sites of battles – although why should it be forbidden to visit a battlefield? No, wahi tapu are merely “sacred” in any traditional, religious, ritual or mythical sense. That could be anywhere. There need be nothing there – the Historic Places Trust has already recognised one area as wahi tapu merely because it is mentioned in a song.

We simply cannot say where these areas are, or how large they will be, until after this bill becomes law, when we will undoubtedly receive some very unpleasant surprises.

I am on record as hoping that (despite the political “win” to National) the new Bill meant a successful conclusion to the foreshore and seabed debate. That prospect is now in tatters. The Maori Party is deeply divided. Maori opinion is a combustible mix of those who are content with the symbolic victory of repeal, those who have realistic ambitions of a better deal that more fully addresses real historical connections, and those who seem to think that Maori are entitled to own the beaches. A nasty conservative backlash is building. Opportunistic politicians are circling. It’s a mess, and it’s going to carry on being a mess for the foreseeable future. I despair.