Beach pledge unhelpful, Act told

David Garrett says National's exclusivity test makes no sense. Photo / Dean Purcell

Act yesterday challenged National to guarantee that some of New Zealand's famous beaches won't be granted a customary title across them after the foreshore and seabed reform law is passed.

Attorney-General Chris Finlayson told MP David Garrett it would be unhelpful to do that.

But Mr Finlayson has set out a test which would seem to exclude the beaches Mr Garrett mentioned: Ninety Mile Beach, Raglan, Wainui in Gisborne, Ohope and Piha.

Mr Finlayson has said one of the factors a tribe would have to prove is that they have had exclusive and continuous use and occupation since 1840.

This week he told the Herald "exclusive" use meant the ability to exclude others. But Mr Finlayson also said there would be no definition of exclusivity in the yet-to-be-drafted legislation repealing the Foreshore and Seabed Act 2004.

Agreement of the repeal deal was announced on Monday.

Customary title will give qualifying iwi legal ownership of the relevant area of foreshore and seabed to the 12- mile limit, but not full ownership rights. It can't be sold and public access must be guaranteed.

Outside the House Mr Garrett said the exclusivity test made no sense.

"It's effectively saying if you prove that in the past you have had the right or did exclude others, you can be granted a title which will require you to give public access. That's circular argument, surely.

"If you had in effect the right to exclude others in the past, why would you go and get a customary title which required you to give access to any member of the public?"

The Government was unclear about the proposed law "and that provides a fertile ground for the courts to come in and clarify it for them", he said.

"We've seen a long history in this country, going back 20 years, of Parliament trying to say one thing and the courts interpreting it some way different with regard to things Maori and we believe this is another one."

Mr Garrett believed the uncertainty opened up the potential for claims across all the coastline.

Prime Minister John Key has said it will be a very small number because the threshold for successful application would be high.

National has relaxed the threshold by removing the requirement - in the common law test - for applicant groups to have had continuous ownership of land next to the foreshore.

Labour's David Parker asked yesterday how much more of the foreshore and seabed Mr Finlayson expected to be subject to customary title as a consequence of that change.

Mr Finlayson said: "We are not talking about very much at all. The overarching requirement is the exclusive possession test."

In response to Maori Party questions Mr Finlayson confirmed that iwi with customary title "will have the same permission right as other property owners".