Predictably, the media has covered the foreshore and seabed issue with lots of pictures of people on beaches and focused on the â€˜access for all’ guarantee. Nevermind that access to the beaches (at least those that aren’t privately owned) has never been in doubt.
The foreshore and seabed is a huge area of land and a potentially mammoth economic resource. The goal of iwi is not the recognition of a spiritual connection with that land in the legalistic forms of Pakeha culture. No, they want to be able to exploit a resource they believe they own for the benefit of their people.
Focusing on the beach when talking about the foreshore and seabed issue is kind of like using images of a sunny day to talk about climate change. It totally misrepresents the issue.
Let’s start with definitions:
Beaches are narrow strips of often sandy land by the sea.
The foreshore is the area between the mean high-tide mark and the mean low-tide mark.
The seabed (and this is the important part) is the seafloor from the mean low-tide mark to 12 nautical miles offshore.
That is an area of thousands of square kilometres and a huge economic resource to whoever has the right to exploit it. There’s lots of minerals and oil in the seabed. There’s huge potential for aquaculture too. It’s not the bit you lie on with your beach towel.
And aquaculture, you’ll recall, is what this issue has actually always been about. Ngati Apa wanted to get in on the burgeoning aquaculture industry in the Marlborough sounds. There was a bit of a gold rush for licences on. So, Ngati Apa said, â€˜Wait a minute, why do we need a licence? We already own the seabed’ and got a court to agree that that might be the case.
Maori were hopeful that subsequent cases following Ngati Apa would determine that a very strong level of title existed giving them exclusive and unfettered rights to undertake economic activities like aquaculture (and possibly mining) on the foreshore and seabed without needing permits from the local authority, while not being able to sell it or exclude people using it merely for recreation.
It was the possibility to argue in court that parts of the foreshore and seabed were Maori Customary Land that the Foreshore and Seabed Act removed. That frustrated the goals of iwi looking to make a buck off aquaculture and, possibly, mining (indeed, the first time the foreshore and seabed was an issue back in the 1860s! it was about rights to fisheries and mining, a court gave Maori title only for Parliament to come and stop it). However, under the FSA, iwi have been able to negotiate with the Crown for the recognition of right for more traditional uses of the foreshore and seabed in defined areas.
There was no guarantee that Ngati Apa or any other Maori group would have been able to obtain the kind of free reign they were looking for from courts. As the Ministry of Justice notes ‘there was no earlier case law stating what rights came along with customary land or what it would involve. There was also no case law on how the courts would recognise customary title in the foreshore and seabed. This was an uncertain position which would have required a lengthy and costly court process.’
That’s why the Maori Party has been arguing all along (until now…maybe) that full but inalienable and non-exclusionary ownership of the foreshore and seabed by Maori should be recognised by legislation. That would put them in a much more certain, and potentially much stronger, position than arguing for limited title through the courts.
National’s proposals do not give Maori the ability to obtain the kind of title they want, which is why Hone Harawira has rejected them as â€˜stupid’ and Tariana Turia is even pretending to put up a fight. As Chris Finlayson admitted, it’s just symbolism from National – all National’s proposals really do is repeal the legislation but leave the same law in place. There is no substantive change that is relevant to Maori goals from the law that Labour put in place.
Maori would be able to go to court to try to have their customary rights recognised. This could potentially include the right to issue permits for customary activities that would not be subject to the RMA and local body plans but that would not extend to issuing permits for non-traditional activities like aquaculture and mining. Activities like these that require a coastal permit would still need permitting by the local authority which is what Ngati Apa was trying to get around in the first place. All the iwi would be able to do is veto permits, not issue them without the local authority.
So it’s hard to see how this is a satisfactory outcome from a Maori perspective. Iwi like Ngata Apa want the right to get court recognition of their ownership of the foreshore and seabed so they use what they believe is their land for their people’s economic gain without having to contest with others get approval from government as if the resource was public. Instead, they will not be able to have that issue determined by courts and the foreshore and seabed will remain in what is effectively government ownership by another name and iwi will still have to seek approval to carry out serious economic activities on the foreshore and seabed.
Iwi do not want legal recognition of some kind of fuzzy spirital connection with the foreshore and seabed. They don’t want the right to use the foreshore and seabed but only in the manner their ancestors did.
They want legal recognition of property rights, rights to use the economic potential of what they regard as their property. Whether or not you agree with the iwi’s arguments or believe they should have these kind of property rights to the foreshore and seabed, this cannot be seen as anything other than a continued denial of the rights that the Maori Party was created to win back.