Charging for the foreshore

Written By: - Date published: 1:32 pm, November 2nd, 2010 - 9 comments
Categories: act, foreshore and seabed, Maori Issues, maori party, national/act government - Tags: ,

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.

9 comments on “Charging for the foreshore ”

  1. tc 1

    Totally predictable with Sideshow and the ever smug Findlayson making an even bigger mess of yet another election promise…..what happened to just repealing it and walking away leaving a more intelligent gov’t to resolve via consensus, consultation and other devices you suck at.

    Here’s an election 08 promise they should’ve just kept and been politically better off but hey Sideshow and his clowns know best……welcome back Winnie, nice work clueless.

  2. This is what happens when you try to be all things to all people. Eventually the internal contradictions catch up.

    It is no more than what National deserve but I fear for race relations in the country.

    • pollywog 2.1

      ‘race’ relations will be fine. one big shiny happy coffee colored people by the score

      cultural relations are gonna take a hammering.

  3. ianmac 3

    The uncertainty in this Bill reflects the mess that they made of the Employment/Contractors Act which because of murky wording becomes contestable. If Iwi do manage to win Customary rights will they believe that they can charge say, for boat-owners to have a mooring?

  4. Under section 27 of the bill if land is declared to be Wahi Tapu (Wahi tapu means a place sacred to Maori in the traditional, spiritual, religious, ritual, or mythological sense) then clause 78 allows conditions to be imposed and I do not see that a condition cannot be made that visitors pay a fee.

  5. Ed 5

    Would the ACT amendment be more palatable if it said that no fees can be charged for any part of the foreshore? If ACT think it is good enough for Maori to not be able to charge, surely they would be happy to push for the same requirement from others? That still leaves the possibility that access may be denied – what if the ACT amendment instead required any restriction on access to be subject to approval with the crown, and also subject to a fee?

    I suspect that such a ‘fair and impartial’ proposal would still not be acceptable to Maori, but it may raise some funds from port authorities and even others who at present “own” parts of the foreshore.

  6. Descendant Of Smith 6

    But the predominant issue for Maori is that they don’t charge for the use of land and buildings that they give freely of these things and that they share. This generally has been their history of behaviour – despite the occasional event – which usually seems to be a form of protest or where land or buildings is in dispute.

    They ask that their lore is respected and so aspects such as tapu areas where someone has drowned recently are to be followed by all – whether they believe or not.

    Much of the umbrage is by the suggestion that safeguards need to be in place in case they start charging when history suggests otherwise. The need for such limits to be enshrined in legislation is based on fear and a lack of trust.

    I say trust Maori – they have in my experience been far more generous with their land, their marae and their resources than Europeans have been back to them.

    Not having such clauses will build bridges and convey a sense of faith and trust.

  7. Nick K 7

    Good on ACT for clearing this up. The Standard should show some honour and acknowledge that at very least.

    [lprent: Have a look at the policy. In particular at the section on idiot people like yourself who think that dumb programs are smarter than they are. I’d advise you not to make that mistake again. ]

    • Ed 7.1

      For clearing what up? Why do ACT want to discriminate and not ban charging for others who control foreshore?

Recent Comments

Recent Posts

  • New sports complex opens in Kaikohe
    Regional Development Minister Shane Jones today attended the official opening of Kaikohe’s new $14.7 million sports complex. “The completion of the Kaikohe Multi Sports Complex is a fantastic achievement for the Far North,” Mr Jones says. “This facility not only fulfils a long-held dream for local athletes, but also creates ...
    BeehiveBy beehive.govt.nz
    3 hours ago
  • Diplomacy needed more than ever
    Foreign Minister Winston Peters’ engagements in Türkiye this week underlined the importance of diplomacy to meet growing global challenges.    “Returning to the Gallipoli Peninsula to represent New Zealand at Anzac commemorations was a sombre reminder of the critical importance of diplomacy for de-escalating conflicts and easing tensions,” Mr Peters ...
    BeehiveBy beehive.govt.nz
    6 hours ago
  • Anzac Commemorative Address, Buttes New British Cemetery Belgium
    Ambassador Millar, Burgemeester, Vandepitte, Excellencies, military representatives, distinguished guests, ladies and gentlemen – good morning and welcome to this sacred Anzac Day dawn service.  It is an honour to be here on behalf of the Government and people of New Zealand at Buttes New British Cemetery, Polygon Wood – a deeply ...
    BeehiveBy beehive.govt.nz
    21 hours ago
  • Anzac Commemorative Address – NZ National Service, Chunuk Bair
    Distinguished guests -   It is an honour to return once again to this site which, as the resting place for so many of our war-dead, has become a sacred place for generations of New Zealanders.   Our presence here and at the other special spaces of Gallipoli is made ...
    BeehiveBy beehive.govt.nz
    2 days ago
  • Anzac Commemorative Address – Dawn Service, Gallipoli, Türkiye
    Mai ia tawhiti pamamao, te moana nui a Kiwa, kua tae whakaiti mai matou, ki to koutou papa whenua. No koutou te tapuwae, no matou te tapuwae, kua honoa pumautia.   Ko nga toa kua hinga nei, o te Waipounamu, o te Ika a Maui, he okioki tahi me o ...
    BeehiveBy beehive.govt.nz
    2 days ago
  • PM announces changes to portfolios
    Paul Goldsmith will take on responsibility for the Media and Communications portfolio, while Louise Upston will pick up the Disability Issues portfolio, Prime Minister Christopher Luxon announced today. “Our Government is relentlessly focused on getting New Zealand back on track. As issues change in prominence, I plan to adjust Ministerial ...
    BeehiveBy beehive.govt.nz
    3 days ago
  • New catch limits for unique fishery areas
    Recreational catch limits will be reduced in areas of Fiordland and the Chatham Islands to help keep those fisheries healthy and sustainable, Oceans and Fisheries Minister Shane Jones says. The lower recreational daily catch limits for a range of finfish and shellfish species caught in the Fiordland Marine Area and ...
    BeehiveBy beehive.govt.nz
    3 days ago
  • Minister welcomes hydrogen milestone
    Energy Minister Simeon Brown has welcomed an important milestone in New Zealand’s hydrogen future, with the opening of the country’s first network of hydrogen refuelling stations in Wiri. “I want to congratulate the team at Hiringa Energy and its partners K one W one (K1W1), Mitsui & Co New Zealand ...
    BeehiveBy beehive.govt.nz
    4 days ago
  • Urgent changes to system through first RMA Amendment Bill
    The coalition Government is delivering on its commitment to improve resource management laws and give greater certainty to consent applicants, with a Bill to amend the Resource Management Act (RMA) expected to be introduced to Parliament next month. RMA Reform Minister Chris Bishop has today outlined the first RMA Amendment ...
    BeehiveBy beehive.govt.nz
    4 days ago
  • Overseas decommissioning models considered
    Overseas models for regulating the oil and gas sector, including their decommissioning regimes, are being carefully scrutinised as a potential template for New Zealand’s own sector, Resources Minister Shane Jones says. The Coalition Government is focused on rebuilding investor confidence in New Zealand’s energy sector as it looks to strengthen ...
    BeehiveBy beehive.govt.nz
    4 days ago
  • Release of North Island Severe Weather Event Inquiry
    Emergency Management and Recovery Minister Mark Mitchell has today released the Report of the Government Inquiry into the response to the North Island Severe Weather Events. “The report shows that New Zealand’s emergency management system is not fit-for-purpose and there are some significant gaps we need to address,” Mr Mitchell ...
    BeehiveBy beehive.govt.nz
    4 days ago
  • Justice Minister to attend Human Rights Council
    Justice Minister Paul Goldsmith is today travelling to Europe where he’ll update the United Nations Human Rights Council on the Government’s work to restore law and order.  “Attending the Universal Periodic Review in Geneva provides us with an opportunity to present New Zealand’s human rights progress, priorities, and challenges, while ...
    BeehiveBy beehive.govt.nz
    5 days ago
  • Patterson reopens world’s largest wool scouring facility
    Associate Agriculture Minister, Mark Patterson, formally reopened the world’s largest wool processing facility today in Awatoto, Napier, following a $50 million rebuild and refurbishment project. “The reopening of this facility will significantly lift the economic opportunities available to New Zealand’s wool sector, which already accounts for 20 per cent of ...
    BeehiveBy beehive.govt.nz
    5 days ago
  • Speech to the Southland Otago Regional Engineering Collective Summit, 18 April 2024
    Hon Andrew Bayly, Minister for Small Business and Manufacturing  At the Southland Otago Regional Engineering Collective (SOREC) Summit, 18 April, Dunedin    Ngā mihi nui, Ko Andrew Bayly aho, Ko Whanganui aho    Good Afternoon and thank you for inviting me to open your summit today.    I am delighted ...
    BeehiveBy beehive.govt.nz
    5 days ago
  • Government to introduce revised Three Strikes law
    The Government is delivering on its commitment to bring back the Three Strikes legislation, Associate Justice Minister Nicole McKee announced today. “Our Government is committed to restoring law and order and enforcing appropriate consequences on criminals. We are making it clear that repeat serious violent or sexual offending is not ...
    BeehiveBy beehive.govt.nz
    5 days ago
  • New diplomatic appointments
    Foreign Minister Winston Peters has today announced four new diplomatic appointments for New Zealand’s overseas missions.   “Our diplomats have a vital role in maintaining and protecting New Zealand’s interests around the world,” Mr Peters says.    “I am pleased to announce the appointment of these senior diplomats from the ...
    BeehiveBy beehive.govt.nz
    5 days ago
  • Humanitarian support for Ethiopia and Somalia
    New Zealand is contributing NZ$7 million to support communities affected by severe food insecurity and other urgent humanitarian needs in Ethiopia and Somalia, Foreign Minister Rt Hon Winston Peters announced today.   “Over 21 million people are in need of humanitarian assistance across Ethiopia, with a further 6.9 million people ...
    BeehiveBy beehive.govt.nz
    5 days ago
  • Arts Minister congratulates Mataaho Collective
    Minister for Arts, Culture and Heritage Paul Goldsmith is congratulating Mataaho Collective for winning the Golden Lion for best participant in the main exhibition at the Venice Biennale. "Congratulations to the Mataaho Collective for winning one of the world's most prestigious art prizes at the Venice Biennale.  “It is good ...
    BeehiveBy beehive.govt.nz
    6 days ago
  • Supporting better financial outcomes for Kiwis
    The Government is reforming financial services to improve access to home loans and other lending, and strengthen customer protections, Commerce and Consumer Affairs Minister Andrew Bayly and Housing Minister Chris Bishop announced today. “Our coalition Government is committed to rebuilding the economy and making life simpler by cutting red tape. We are ...
    BeehiveBy beehive.govt.nz
    6 days ago
  • Trade relationship with China remains strong
    “China remains a strong commercial opportunity for Kiwi exporters as Chinese businesses and consumers continue to value our high-quality safe produce,” Trade and Agriculture Minister Todd McClay says.   Mr McClay has returned to New Zealand following visits to Beijing, Harbin and Shanghai where he met ministers, governors and mayors and engaged in trade and agricultural events with the New ...
    BeehiveBy beehive.govt.nz
    6 days ago
  • PM’s South East Asia mission does the business
    Prime Minister Christopher Luxon has completed a successful trip to Singapore, Thailand and the Philippines, deepening relationships and capitalising on opportunities. Mr Luxon was accompanied by a business delegation and says the choice of countries represents the priority the New Zealand Government places on South East Asia, and our relationships in ...
    BeehiveBy beehive.govt.nz
    1 week ago
  • $41m to support clean energy in South East Asia
    New Zealand is demonstrating its commitment to reducing global greenhouse emissions, and supporting clean energy transition in South East Asia, through a contribution of NZ$41 million (US$25 million) in climate finance to the Asian Development Bank (ADB)-led Energy Transition Mechanism (ETM). Prime Minister Christopher Luxon and Climate Change Minister Simon Watts announced ...
    BeehiveBy beehive.govt.nz
    1 week ago
  • Minister releases Fast-track stakeholder list
    The Government is today releasing a list of organisations who received letters about the Fast-track applications process, says RMA Reform Minister Chris Bishop. “Recently Ministers and agencies have received a series of OIA requests for a list of organisations to whom I wrote with information on applying to have a ...
    BeehiveBy beehive.govt.nz
    1 week ago
  • Judicial appointments announced
    Attorney-General Judith Collins today announced the appointment of Wellington Barrister David Jonathan Boldt as a Judge of the High Court, and the Honourable Justice Matthew Palmer as a Judge of the Court of Appeal. Justice Boldt graduated with an LLB from Victoria University of Wellington in 1990, and also holds ...
    BeehiveBy beehive.govt.nz
    1 week ago
  • Education Minister heads to major teaching summit in Singapore
    Education Minister Erica Stanford will lead the New Zealand delegation at the 2024 International Summit on the Teaching Profession (ISTP) held in Singapore. The delegation includes representatives from the Post Primary Teachers’ Association (PPTA) Te Wehengarua and the New Zealand Educational Institute (NZEI) Te Riu Roa.  The summit is co-hosted ...
    BeehiveBy beehive.govt.nz
    1 week ago
  • Value of stopbank project proven during cyclone
    A stopbank upgrade project in Tairawhiti partly funded by the Government has increased flood resilience for around 7000ha of residential and horticultural land so far, Regional Development Minister Shane Jones says. Mr Jones today attended a dawn service in Gisborne to mark the end of the first stage of the ...
    BeehiveBy beehive.govt.nz
    1 week ago
  • Anzac commemorations, Türkiye relationship focus of visit
    Foreign Affairs Minister Winston Peters will represent the Government at Anzac Day commemorations on the Gallipoli Peninsula next week and engage with senior representatives of the Turkish government in Istanbul.    “The Gallipoli campaign is a defining event in our history. It will be a privilege to share the occasion ...
    BeehiveBy beehive.govt.nz
    1 week ago
  • Minister to Europe for OECD meeting, Anzac Day
    Science, Innovation and Technology and Defence Minister Judith Collins will next week attend the OECD Science and Technology Ministerial conference in Paris and Anzac Day commemorations in Belgium. “Science, innovation and technology have a major role to play in rebuilding our economy and achieving better health, environmental and social outcomes ...
    BeehiveBy beehive.govt.nz
    1 week ago
  • Comprehensive Partnership the goal for NZ and the Philippines
    Prime Minister Christopher Luxon held a bilateral meeting today with the President of the Philippines, Ferdinand Marcos Jr.  The Prime Minister was accompanied by MP Paulo Garcia, the first Filipino to be elected to a legislature outside the Philippines. During today’s meeting, Prime Minister Luxon and President Marcos Jr discussed opportunities to ...
    BeehiveBy beehive.govt.nz
    1 week ago
  • Government commits $20m to Westport flood protection
    The Government has announced that $20 million in funding will be made available to Westport to fund much needed flood protection around the town. This measure will significantly improve the resilience of the community, says Local Government Minister Simeon Brown. “The Westport community has already been allocated almost $3 million ...
    BeehiveBy beehive.govt.nz
    1 week ago
  • Taupō takes pole position
    The Government is proud to support the first ever Repco Supercars Championship event in Taupō as up to 70,000 motorsport fans attend the Taupō International Motorsport Park this weekend, says Economic Development Minister Melissa Lee. “Anticipation for the ITM Taupō Super400 is huge, with tickets and accommodation selling out weeks ...
    BeehiveBy beehive.govt.nz
    1 week ago
  • Cost of living support for low-income homeowners
    Local Government Minister Simeon Brown has announced an increase to the Rates Rebate Scheme, putting money back into the pockets of low-income homeowners.  “The coalition Government is committed to bringing down the cost of living for New Zealanders. That includes targeted support for those Kiwis who are doing things tough, such ...
    BeehiveBy beehive.govt.nz
    1 week ago
  • Government backing mussel spat project
    The Coalition Government is investing in a project to boost survival rates of New Zealand mussels and grow the industry, Oceans and Fisheries Minister Shane Jones has announced. “This project seeks to increase the resilience of our mussels and significantly boost the sector’s productivity,” Mr Jones says. “The project - ...
    BeehiveBy beehive.govt.nz
    1 week ago
  • Government focused on getting people into work
    Benefit figures released today underscore the importance of the Government’s plan to rebuild the economy and have 50,000 fewer people on Jobseeker Support, Social Development and Employment Minister Louise Upston says. “Benefit numbers are still significantly higher than when National was last in government, when there was about 70,000 fewer ...
    BeehiveBy beehive.govt.nz
    1 week ago
  • Clean energy key driver to reducing emissions
    The Government’s commitment to doubling New Zealand’s renewable energy capacity is backed by new data showing that clean energy has helped the country reach its lowest annual gross emissions since 1999, Climate Change Minister Simon Watts says. New Zealand’s latest Greenhouse Gas Inventory (1990-2022) published today, shows gross emissions fell ...
    BeehiveBy beehive.govt.nz
    1 week ago
  • Earthquake-prone buildings review brought forward
    The Government is bringing the earthquake-prone building review forward, with work to start immediately, and extending the deadline for remediations by four years, Building and Construction Minister Chris Penk says. “Our Government is focused on rebuilding the economy. A key part of our plan is to cut red tape that ...
    BeehiveBy beehive.govt.nz
    1 week ago
  • Thailand and NZ to agree to Strategic Partnership
    Prime Minister Christopher Luxon and his Thai counterpart, Prime Minister Srettha Thavisin, have today agreed that New Zealand and the Kingdom of Thailand will upgrade the bilateral relationship to a Strategic Partnership by 2026. “New Zealand and Thailand have a lot to offer each other. We have a strong mutual desire to build ...
    BeehiveBy beehive.govt.nz
    1 week ago
  • Government consults on extending coastal permits for ports
    RMA Reform Minister Chris Bishop and Transport Minister Simeon Brown have today announced the Coalition Government’s intention to extend port coastal permits for a further 20 years, providing port operators with certainty to continue their operations. “The introduction of the Resource Management Act in 1991 required ports to obtain coastal ...
    BeehiveBy beehive.govt.nz
    1 week ago
  • Inflation coming down, but more work to do
    Today’s announcement that inflation is down to 4 per cent is encouraging news for Kiwis, but there is more work to be done - underlining the importance of the Government’s plan to get the economy back on track, acting Finance Minister Chris Bishop says. “Inflation is now at 4 per ...
    BeehiveBy beehive.govt.nz
    1 week ago
  • School attendance restored as a priority in health advice
    Refreshed health guidance released today will help parents and schools make informed decisions about whether their child needs to be in school, addressing one of the key issues affecting school attendance, says Associate Education Minister David Seymour. In recent years, consistently across all school terms, short-term illness or medical reasons ...
    BeehiveBy beehive.govt.nz
    1 week ago

Page generated in The Standard by Wordpress at 2024-04-27T00:23:01+00:00