Restoring the right to a day in court

Written By: - Date published: 7:41 am, November 3rd, 2009 - 48 comments
Categories: foreshore and seabed, maori party - Tags:

I see that repeal of the Foreshore and Seabed Act is finally a foregone conclusion. There’s going to be some dithering about what to put in its place but there shouldn’t be.

Instead the Act should be repealed, nothing should be put in place and Maori should get their day in court. I’m not alone in this opinion either, just last year Tariana Turia made it very clear in a joint release with Pita Sharples that the big issue was confiscation without legal redress.

‘The confiscation of customary rights in the foreshore and seabed was certainly the catalyst for the formation of the Maori Party, out of the almost total opposition among tangata whenua to the actions of the Crown,’ said Dr Sharples.

‘But it was the denial of due process, Labour’s overthrow of the rule of law, that infuriated tangata whenua and others who saw what was happening,’ said Mrs Turia.

I couldn’t agree more. This also puts me in the odd position of agreeing with the Act party who said at the time:

The bill discriminates against Maori, by removing the right that the Court of Appeal has found, that Maori have to seek a declaration from the courts that the seabed and foreshore is Maori land.

But the truth is I’m struggling to believe that National will be able to replace the current legislation with anything meaningfully better. That’s because I don’t believe that repealing the act and giving Maori their day in court is something National can do while maintaining their base.

Just as you can’t be a little bit pregnant you can’t be a little bit denied your day in court.

Given the Maori party was created to get that right back and has swallowed all sorts of political rats to do so, there better be more than a token gesture from National if the Maori Party wants to retain the little mana it has left.

48 comments on “Restoring the right to a day in court”

  1. I couldn’t agree more. This also puts me in the odd position of agreeing with the Act party who said at the time:

    Depends what day you checked. Act took a variety of positions in 2003.

    Prebble urged the government to declare that “no claim will be considered” for the F&S. Franks bitched about “activist judges” and wanted the racist 1963 precedent upheld. He publicly urged the Act caucus to offer its votes for the government to summarily legislate over Ngati Apa. Shirley had a different view altogether.

    It took a long time for Act to come around to property rights.

  2. RedLogix 2

    When Maori have their day in Court, and they win freehold title to the F&S (which many here assure me is the correct and only possible legal outcome)… then why would Maori settle for a second-class kind of title that did not allow them to fully control access, and re-sell the property? As is a matter of right with all other freehold title?

    All other assets can be used as security to borrow against, especially title to property, but if the S&F cannot be seized and sold by the mortgage holder, then it would worthless for this purpose. This would represent an enormous theft of property rights and value from Maori, and merely perpetuate colonial oppression.

    Why should Maori be further discriminated against in this way?

    • Lew 2.1

      If the putative holders of such rights wish to trade away the chance of an absolute claim of the sort you describe against the uncertainty (however slight) that they might lose it all, and in the process of doing so achieve a more enduring and peaceable relationship with the rest of the country, isn’t that their right to do so?


  3. RedLogix is absolutely correct.

  4. I’m not sure you understand how repeal works.

    Don Brash circa 2005 would have been very happy with a straight repeal, and nothing put in it’s place.

    • Zetetic 4.1

      of course, Edgeler voted for Iwi/Kiwi in 2005. he would try to defend Brash.

      • This isn’t defending Brash. It’s attacking Brash.

        Repealing the law does not return the law to the state it was.

        If you repeal the law and replace it with nothing then Maori don’t get to go to Court, and they don’t get to claim any of the foreshore etc. under the Ngati Apa case. That’s not how repeal works.

        • IrishBill

          I’m no big city lawyer Graeme so I’ll defer to your knowledge of process but you clearly know what I mean. Would you be able to offer a more accurate explanation of how this could be achieved?

  5. Neil 5

    “…then why would Maori settle for a second-class kind of title that did not allow them to fully control access, and re-sell the property?”

    a joke?

    why sould it be considered “second-class” if it doesn’t entail the automatic right to sell? I have never heard that that is what Maori want. The ability to develop econmically and have guardianship yes, but no one is talking about wanting to sell off customary title.

    I think many would not feel that fitting in with the a European property ownership system is the only way of not being “discriminated against”.

    Before setting up these arbitrary standards of what a sucessful solution should be and paternalistically trying to distribute who is and who isn’t getting mana maybe it’s worth paying some attention to what the Maori Party and Maori have to say.

  6. RedLogix 6

    Sorry Neil, but we are talking about a rule of law, property rights issue here. The only Act of Parliament I’m aware of the creates the legal possibility of ‘customary title’ is Labour’s now despised S&F Act… which is about to be repealed. (Someone please correct me if I’m wrong.)

    • Rob Carr 6.1

      Well through treaty settlements Maori regularly get a say in or access to public land or assets that is not full ownership, this was just a very broad statutory version of that.

    • Neil 6.2

      I don’t think there are any Maori communities that see a resoltion of this issue in terms of a right to sell.

    • Lew 6.3


      The point is that aboriginal title is common-law institution which pre-empts other forms of ownership. It’s the default state of being for land in NZ; all land (until it’s alienated, which can happen in a bunch of ways). So while it’s probably a good idea to draft up an agreed definition of what precisely those rights and responsibilities are, it’s not a legal nullity without one, or without the FSA.

      This is also why I tend to disagree with IB (though I can see his point) — because of the hazy and disputed legal status of these institutions, certainty will only come from a broad-based legislative solution such as that recommended by the FSA review panel which repeals the act and replaces it with something similar, taking cognisance of the complex issues in play. A purely judicial solution won’t be durable, and will be prone to exploitation by those with the deepest legal pockets. In addition to that it’s not the option which is favoured by most tangata whenua. It’s certainyl not the only option the māori party can support and retain their mana, although I can see why it’s tempting for the Greens and Labour to try to play it in such an absolutist fashion.


    • Lew 6.4


      And another thing: this isn’t only a property rights issue — that’s a eurocentric view, similar to the view which casts the treaty as a contract. That analysis has its value and forms sufficient if not complete grounds for supporting the repeal, but the wider matter is predominantly about adherence to a treaty and access to judicial process. The actual property rights, such as they are, are an outcome more than they are a cause.


      • RedLogix 6.4.1

        OK Lew I’m fine with that… but surely all a Court can do IS apply due legal process. The question must be, what process?

        If as you correctly point out that in common law aboriginal title has precedence before all other considerations, even presumably Acts of Parliament, the Courts will eventually have no other choice than to declare all of NZ, wet or dry, as being in full freehold title to Maori.

        As you rightly say, it’s got to be about more than just giving Maori their day in Court.

        • Pascal's bookie

          Resolving these issues is what politicians are for, IMV. If they can’t make a deal, let it go to court. That didn’t work out so well last time, and it turned into a political shit fight. Rinse repeat, till a deal is struck.

          or something.

        • Lew


          If as you correctly point out that in common law aboriginal title has precedence before all other considerations, even presumably Acts of Parliament, the Courts will eventually have no other choice than to declare all of NZ, wet or dry, as being in full freehold title to Maori.

          Well, no, for a few reasons. For one thing, aboriginal title isn’t the same as freehold title, and (I believe, though IANAL) the transfer of one to another would require some substantial legal or — more controversially — legislative contortion.

          For another thing, land held in aboriginal title can be alienated, and most of it already is — by both legitimate and illegitimate means, because ‘alienation’ isn’t required to be legitimate or legal in the same way ‘sale and purchase’ is. So land which can be proven to have been alienated isn’t liable to be declared the possession of tangata whenua — even thouogh that might be a historically just outcome in a very strict sense. That also isn’t what tangata whenua are seeking, which goes to my point above about trading off a strong but risky and divisive claim against a weaker but more certain and durable claim.


  7. Tigger 7

    Who-hoo. Married to Maori here so the beaches are mine!

    I’m barring anyone who votes right from even touching the sand. Like it or lump it.

  8. toad 8

    IB, I do think something more than simple repeal is required. Te Ture Whenua Māori Act should be amended to ensure the foreshore and seabed can never be sold.

    That would be consistent with Article 2 of Te Tiriti o Waitangi, so is not abrogating any Tiriti rights, but would allay public fear that large chunks of it could end up in private hands.

    • BLiP 8.1

      Here’s the wording (English version) of Article The Second:

      Her Majesty the Queen of England confirms and guarantees to the Chiefs and Tribes of New Zealand and to the respective families and individuals thereof the full exclusive and undisturbed possession of their Lands and Estates Forests Fisheries and other properties which they may collectively or individually possess so long as it is their wish and desire to retain the same in their possession; but the Chiefs of the United Tribes and the individual Chiefs yield to Her Majesty the exclusive right of Preemption over such lands as the proprietors thereof may be disposed to alienate at such prices as may be agreed upon between the respective Proprietors and persons appointed by Her Majesty to treat with them in that behalf.

      In what way is preventing Maori from selling their property consistent with this?

      • toad 8.1.1

        It gives the Crown exclusive right of pre-emption over the sale of any land. That means the Crown deciding that certain land cannot be sold is consistent with Article 2.

        • snoozer

          the Crown’s right to pre-emption was given up some time in the 1850s or 1860s – can’t be bothered checking when at the moment

        • Rob Carr

          Pre-emption was not created by the treaty it existed in the common law of all colonies of the UK. As such the treaty was merely confirming its existence to Maori as such not creating a legal rule. Pre-emption has already been repealed by statute. It was never intended to prevent Maori selling land where it would benefit them anyway it was there so the government could profit by reselling land to settlers.

        • BLiP

          Not quite. The Article gives the Crown first option. If – or, fingers crossed, when – Maori get to own the foreshore and seabed, they are perfectly entitled to sell it. Now you want to remove that right?

          Or have I got something wrong here?

          • Rob Carr

            Some Maori probably thought it meant right of first refusal given the discussions at the various treaty grounds. However the wording of both English and Maori versions more closely associates with Crown having exclusive right to purchase.

  9. Rob Carr 9

    I don’t think the foreshore and seabed should be ownable by private individuals at all except where necessary for ports in which case people should be given a permit which essentially gives them ownership of the structure but not of the land underneath which could allow them to restrict access for reasons of security if necessary.

    I think at minimum we need legislation to limit what people can do with our beaches whether they are Maori or not and thus the foreshore and seabed act does need a replacement. With this however Maori would also need a fair settlement deal where they get compensation for not retaining full ownership as should any Pakeha current owners of beach land that have its ownership altered by such a legislation.

    I think the beach being a place where people have free access as much as possible is something quite important to Kiwi culture and we should make sure that all people can have access to their local beach. It is not a case of Kiwi vs Iwi but a matter of how our land should be treated in general I feel and I am not satisfied with beaches being treated as normal land which they would be without a foreshore and seabed act. I personally was quite disappointed with the original act in that its method of discrimination was to not affect existing freehold title of non-Maori.

  10. millsy 10

    “Maori should get their day in court”.

    So, the courts hand over vast tracts of publicly owned beaches with universal access to an elite group, who will proceed to deny access to the general public (average New Zealanders who use the beach). Thats not very leftie is it?

    A real leftie would fight tooth and nail for the beaches to be owned by the Crown in perpertuity for the benefit of all New Zealanders, so we do not have to go begging to the tribal elite for a picnic at the beach. This is not redneckism, this is about fairness. And I do not see iwi as going to court to take the beaches off regular people as being fair. In fact it is digusting that iwi want to take everything off us and lock us out of our own country.

  11. millsy 11

    As for the restrictions on title talked about at the top of the thread. It is very common for property rights to be restricted. For example, home owners arent allowed to build 20 storey skyscrapers on their land without seeking the appropriate consents.

  12. IrishBill 12

    In fact it is digusting that iwi want to take everything off us and lock us out of our own country.

    Do you have any sense of irony whatsoever?

    • millsy 12.1

      Oh come on Bill, wake up. I thought lefties liked public ownership. As we speak, this government is in negotiation to hand over vast tracts of conservation estate, including the Tongariro National Park, to iwi. Then it will be locked up for good. Look at Mt Tawawera. Iwi got that back, and now it has a dirty great lock on it, and you have to pay to climb it. That is what will happen to the beaches.

      • BLiP 12.1.1

        Mt Tawawera today – Remuwera tomorrow! Get over it. Consider yourself lucky Maori have been generous enough not to send a bill to everyone who climbed the mountain before it was returned.

        • millsy

          Remember Blip, the tribal elite is no different to the business roundtable. be careful.

          • Lew

            Right, Millsy, and the Labour party are no different to the Nats, and the Mongrel Mob are no different to the Ulysses Club, and the Kiwis are no different to the All Blacks …


          • BLiP

            Toitu he whenua, whatungarongaro he tangata

    • BLiP 12.2

      Millsy wasn’t being satirical, then?

  13. Matthew Hooton 13

    You are absolutely correct IrishBill. Nothing should be put in place of the Act. The court process should proceed (including, if the Crown is so minded, an appeal to the Privy Council or Supreme Court, whichever is the one appropriarte for a 2003 Court of Appeal decision).

    The difficulty with replacement legislation is twofold – (1) it risks removing a legal right from iwi which the courts may otherwise recognise, and (2) it risks creating a new (race-based) legal right to iwi which the courts may not otherwise have recognised. Neither is likely to lead to a satisfactory long-term resolution of the issue because it would not be consistent with the rule of law and proper due process.

    This is roughly the position of the Treaty Tribes Coalition (Hauraki Maori Trust Board, representing the 12 iwi of Hauraki, Ngati Kahungunu, Ngai Tamanuhiri and Ngai Tahu) that I was working with in 2004. I still think it makes sense because it is not a position any reasonable person could disagre with. It is why the TTC position was immediately publicly supported by the Business Roundtable and ACT.

    On the question of access to the beaches, and to go much further than any of the iwi involved in the issue, I personally don’t see why it would be the end of the world if – in the extremely rare cases an iwi could achieve fee simple title through the court process – an iwi then JVed with, say, Mandarin Oriental, to establish a beach resort as an asset for their people, even if this did mean public access was compromised.

    We have one of the longest coast lines in the world, and only 4 million people. A couple of new iwi-owned tourism developments or mussel farms here and there are hardly a big deal in terms of families having picnics and going swimming and so forth, which is surely what the “beach access” red herring is all about. In fact, surely they would be a good thing given our slowly-deteriorating relative standard of living. Already, for excample, you can’t just rock up at Kapiti Island and have a picnic etc because its owned by DoC and access is restricted. This hasn’t harmed my sense of being able to take the kids swimming etc and I don’t see why a big of commercial development here and there could either.

    UPDATE: I see that, as I have been writing this, millsy has, in a way, made a useful contribution. The F&S Act was the greatest nationalisation in NZ’s history. The Crown simply declared that it owned all the foreshore and seabed, out to the limits of the economic zone, without even bothering to say where this ownership came from. Millsy says he thinks the Crown should own the whole coastline and all the seabed, in which case it better be prepared ot buy the Port of Tauranga, for starters.

    • millsy 13.1

      “slowly-deteriorating relative standard of living”

      I really get sick of you going on about that! To me, it means that not enough people are being forced to live on the street, wages are too high, rents are too low and health care is too freely avalible to the non wealthy.

      And Matthew, do you really want your children to have to beg iwi elite to use the beaches? Because that is what will happen. Same with our national parks, and so on and so forth. I like how New Zealanders have unfettered access to beache, national parks, lakes, and the wide open spaces, unlike negative pricks like you who want to turn this country into another fairground park, I love this nation and what it has to offer and I will right tooth and nail to ensure that it is preserved from the money grubbing neo-cons like you and their PC leftie allies.

    • IrishBill 13.2

      Hmm, if Mathew agrees with me I may have to rethink my position.

      edit: Millsy, I think that’s the first time in my life anyone has called me PC!

      [lprent: PC? IrishBill? That really really stretches the definition. I think the Genghis Khan (with his interesting habits of educating cities that resisted) would also fit in any definition of PC that Irish also fitted into. He likes biting the heads off trolls. ]

      • BLiP 13.2.1

        Yeah – worrying, eh? I imagine his beloved National Ltd® and Roundtable mates have visions of duping Maori out of the coastlne for their own venal ends.

    • millsy 13.3

      The Port of Tauranga is majority owned by the Bay Of Plenty Reigonal council (which pretends to be something else by calling itself Environment Bay of Plenty).

      I accept that there are reasonable limits to public use and ownership, such as ports and infrastructure.

      As I said before, Hooten, what have you got against white people getting to use the beach? And would you see it as acceptable for our National Parks to be handed to iwi?

      • BLiP 13.3.1

        Hehehe – reminds me of another joke, Eddie Murphy maybe:

        when you get angry, you go red; when you get jealous, you go green; when you get sad, you go blue; if you’re a coward, you’re yellow; if you’re a communist, you’re a pinko – and you have the cheek to call us “coloured”

    • zelda 13.4

      Greatest nationalisation In NZ History??.
      a tad overblown dont you think.
      When the government grabbed ALL the mineral rights, including oil gas coal , now that was the greatest Nationalisation.
      Pity they didint have spin doctors back then, to lead the push back, they would have had deep pockets

  14. Blue 14

    If the law is repealed and nothing put in its place, I have no doubt that the courts will in some instances grant fee simple title to the local iwi, and in others grant some form of customary title.

    And I have no doubt that some iwi would block or restrict access to some beaches, as with other privately-owned sections of the foreshore and seabed.

    It would simply be part of the new tapestry of life in New Zealand going forward. I can’t imagine National’s core vote accepting that, however.

    I think he may just have left the door wide open for the return of Winston Peters and NZ First.

  15. Scott 15

    …I was at the beach on a weekday evening recently, talking on the phone to a mate (lawyer) living in London. He is earning sqillions of pounds, Im not. But on the basis that after work I go to the beach, and he battles the London Underground back to an expensive, miniscule flat, we agreed that I have the better ‘standard of living’.

    Matthew Hooton seems to think that more commercial development of our coastline will improve our standard of living. I would vehemently argue the oppsitie. Economic development is of course essential, but need not be at odds with preserving the natural environemnt. In fact, given the premium placed on ‘nature tourism’, in the future, it will arguably be worth a lot more to the New Zealand economy if it stays ‘undeveloped’.

    Mr Hooton, having lived and worked in seven different countries, I can safely say our qaulity of life is unrivalled. It comes not from being an economic powerhouse, but instead from the fact that we enjoy free, unfettered access to our bountiful natural resources. I gladly forgo earning a higher salary in Europe for this very reason.

    I actually agree with Mr Hooton that “beach access’ is a red herring in this argument. But he unwittingly highlights the real concern in the same paragraph: a repeal of the Foreshore and Seabed Act, combined with other Government policies and legislation still to come, leaves the New Zealand coastline vulnerable to rampant development.

    This WOULD see the deteriation of our standard of living which Mr Hooton fears.

  16. 16

    When National repeals the FS&SB legislation, I wonder if John Key will apologise for the “Kiwi/iwi” billboards. I think it will be fitting and proper for him to do so. Your party can’t whip up a fervour of anger and fear and then claim you are setting the wrongs right. Repeal the bill and apologise for the actions of your party. Thats what Key must now do.

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