Chris Finlayson's response to the Coastal Coalition's Q and A

1. What's at stake?
Control of 100,000 square kilometres of foreshore and seabed - everything out to 22km, all the airspace above that, the sea and all the minerals below.

2. How big an area is that?
More than one third of the land area of New Zealand?

3. What's it worth? Our ironsands alone are worth $1 trillion.
Our seabed minerals include titanium and rare earths. Then there's all future aquaculture. So it's many billions.

4. But why shouldn't iwi get a share of it?
They already do, as equal New Zealand citizens. Proceeds from our 'Crown jewels' should be used to buy medicines and education for all kiwis, not just make the part-Maori tribal aristocracy richer.

5. Who owns the foreshore and seabed now?
We all do - and have since 1840.

Chris Finlayson: Until June 2003, the Crown had proceeded on the assumption it owned the whole public foreshore and seabed, but as the Court of Appeal pointed out in Ngati Apa, this was not actually the legal situation. The Labour government legislated for absolute Crown ownership in 2004.

6. Did we have a 22km limit in 1840?
No, back then it was only 5.5km (3 nautical miles). It didn't become 22km (12 nautical miles) until 1977.

7. So even if iwi had owned the seabed from 1840, Key is giving them four times that?
Well spotted.

Chris Finlayson: The Common Marine and Coastal Area extends to 12 nautical miles. However, when an iwi seeks recognition of customary title within that area, it must prove its exclusive use and occupation since 1840 of the whole part of the area it is seeking title to. This may or may not be as far as 12 Nautical miles, depending on the facts of each case, and it will obviously be harder to prove exclusive use and occupation the further out to sea a claimed area is. For example, if an iwi customarily only ventured 1km out to sea, that is as far as their customary title could extend.

The rights of customary title holders extend to the "airspace above" the land in the same way as other title holders - it allows title-holders to occupy space in their land, rather than lying flat, and stops people building intrusive balconies etc at head height or a height that intrudes over the property.

8. Have Maori always thought they owned it?
No. They must have agreed it was owned by the Crown. Otherwise iwi would have included the foreshore and seabed in Treaty claims to the Waitangi Tribunal. None of them did.

Chris Finlayson: Customary title is not a Treaty settlement for historical grievances - it is a common law concept that recognizes indigenous property rights where they have existed since before Crown sovereignty (1840) and continue to exist to the present day. Therefore the two processes recognise different sets of interests.

9. Why do iwi think they own it now?
Because an activist judge in 2003 said they might have a chance.

Until June 2003, the Crown had proceeded on the assumption it owned the whole foreshore and seabed, but as the Court of Appeal pointed out in Ngati Apa, this was not actually the legal situation. This was not a judgment by "an activist judge", but the full bench of the Court of Appeal (five judges).

10. Was that why Helen Clark re-affirmed Crown ownership?
Yes. She thought Parliament (our highest Court) should secure the coastline for all Kiwis, not just coastal iwi.

11. And John Key wants to surrender Crown ownership?
Yes, he wants no-one to own the foreshore and seabed.

12. Why does he want no-one to own it?
So we'll all be powerless to object when iwi claim it (since we've just given it away!).

13. Why is he so keen for iwi to get it?
To appease his Maori Party allies and their clients the tribal aristocrats - who, as always, will pocket most of the money.

Chris Finlayson: The Marine and Coastal Area Bill does not "confiscate" any land. It repeals the Foreshore and Seabed Act 2004, and takes the marine and coastal area out of the Crown ownership created by the 2004 Act. It creates a Common Marine and Coastal Area (excluding the 12,499 or so existing private titles that partially include marine and coastal area) which is not owned, and which can never be sold. It will be regulated by the Crown, as are many things that the Crown does not "own" - for example land (the Continental Shelf), resources (air and water) and legal entities (stock markets).

The Bill provides for the interests and rights of all New Zealanders in the common marine and coastal area, and is based on the understanding that these rights can co-exist.

The Bill restores the right of iwi to seek customary title in parts of the Common Marine and Coastal Area, a fundamental right removed by the 2004 Foreshore and Seabed Act. In order to prove customary marine title in a particular area, a group must have had exclusive use and occupation of the area since 1840 without substantial interruption. Customary marine title gives certain prescribed rights under the Bill.

The Bill also guarantees certain rights of all New Zealanders - including free public access in the common marine and coastal area, fishing rights, and navigation rights It also protects and guarantees existing use rights for holders of consents, permits, licenses etc, including mining companies and aquaculture operators. It preserves, and in some cases extends, the rights of vital infrastructure providers such as ports, airports and electricity companies.

14. How else is he making it easier to claim the coast?
He's radically lowered the qualifying bar, so the floodgates will open.

15. How has he lowered the bar?
Under the present law, only iwi who own land next to the foreshore and seabed can make a claim for title. But John Key is waiving that requirement.

16. Don't iwi have to test their claims in Court?
They do under the present law, but Key is waiving that requirement too.

17. Why doesn't key want iwi to go to Court?
Because he knows in an open Court most of them won't win.

18. So where will iwi have to prove their claims now?
In Chris Finlayson's office. Non-iwi Kiwis will be shut out of this secret "negotiation".

19. But wasn't Chris Finlayson Ngai Tahu's lawyer?
Yes. And now he's both the Minister for Treaty Settlements and the Attorney-General who approves those settlements!

Chris Finlayson: The Foreshore and Seabed Act 2004 did not allow for iwi and hapu claims to be tested in Court. It allowed applicants to seek so-called "territorial customary rights", not customary title. Territorial customary rights were never defined - all the Foreshore and Seabed Act said was that something called a "foreshore and seabed reserve" was created. If iwi wanted any actual rights, the Court could only tell them they would have to negotiate with the Government on an ad hoc basis.

It is not enough to say that Maori can have a day in court, but are not allowed to benefit from it. Property rights have to be recognised where they exist. The Marine and Coastal Area Bill allows applicants to seek Customary Marine Title in the High Court. It clearly sets out what customary title involves, and how it is proved, based on the Court of Appeal's 2003 decision and Commonwealth common law.

A natural consequence of restoring access to the Courts is to allow parties to settle claims outside of the Courts to save on expensive and time-consuming litigation where there is strong evidence of the likely outcome.

The Bill stipulates that any applicant group seeking a negotiated agreement must meet the same standard of proof as prescribed in the legislation for an application through the High Court. The awards are also those prescribed in legislation - customary title which guarantees free public access, fishing, navigation and existing use rights.

20. (sic)

21. What do iwi want?
Customary title to the whole foreshore and seabed. (For starters.)

22. And what is customary title?
Effectively it's privatising the coast to iwi.

23. What rights will customary title give iwi?
The right to by-pass the Resource Management Act and veto and extract payment for everything that happens on their stretch of coast. The right to develop an area and mine its mineral wealth. The right to all new aquaculture developments. The right to impose iwi plans on central and local government.

Chris Finlayson: Customary title is a different form of title to fee simple (freehold) title - it does not allow the title-holder to withhold access from the public or to sell the land. Where customary title can be proved, it sits alongside the guaranteed public rights of free access, fishing and navigation.

Customary title holders will get ownership of non-nationalised minerals, for example iron sands. Under the Crown Minerals Act, rights to non-nationalised minerals (that is, not gold, silver, uranium or petroleum) are with the land where they lie. Two of New Zealand's largest existing ironsands producers extract their sand from privately owned deposits, not under government licences - no-one has suggested nationalising their resource.

Customary title holders also have a "permission" right - they can permit or deny third parties the right to come in and build structures or undertake activities with significant environmental effects, requiring a resource consent. However, the Resource Management Act still applies to customary title areas.

24. Will iwi get any other kind of title?
Yes. Mana tuku iho (universal recognition) will be given to all coastal iwi and cover the whole foreshore and seabed.

25. What rights will mana tuku iho give iwi?
The right to priority treatment by the Department of Conservation in such matters as marine reserves, whale watching and ferry concessions.

Chris Finlayson: Mana tuku iho does not replace, displace or indeed affect the public's rights in the marine and coastal area, which are guaranteed in the Bill: free public access, fishing and navigation, as well as existing use rights.

It formalises existing best practice in consultation by the Department of Conservation for environmental issues in the common marine and coastal area such as marine reserves, provided for in existing legislation. It is not a property right or title, and does not include co-management.

26. What sorts of activities could iwi charge for?
Just about everything from boat ramps, moorings, wharves and marinas, to aquaculture, mining, oilwells, tourism, pipelines and cables.

Chris Finlayson: A customary title holder can deny permission for a third party to undertake activities or build structures that require a resource consent, on the foreshore where the customary title-holder has had exclusive use and occupation for 170 years. Activities requiring resource consents are those with significant environmental impacts and often involve commercial activity.

A customary title holder cannot deny public access or therefore charge for access.

27. Are we still guaranteed free access to the beach and sea?
No. First Finlayson ducked the question. When pressured, he said public access would be free. But he couldn't show where his bill says that. Why? Because he'd sneakily left out of it the current ban on charging!

Chris Finlayson: The Marine and Coastal Area guarantees free access in the Common marine and coastal area.

The public access guaranteed under the Marine and Coastal Area Bill is free access. This Government's bottom line, and also the Maori party's botton line, has always been to guarantee free public access.

Clause 27 of the Bill provides for public access in the Common Marine and Coastal Area.

In some areas, groups will be able to receive a grant of customary marine title (the group must be able to prove it has had exclusive use and occupation of the area since 1840 without substantial interruption). Customary marine title holders may exercise certain rights, but these rights do not include the right to charge for access (clause 63).

Recently, the Attorney-General has said in Parliament he will promote an amendment to the Bill to ensure that its effect of guaranteeing free access to the Common Marine and Coastal Area is clear beyond any doubt. Although such an amendment is not required to guarantee free access, it will help make the law more understandable and accessible to the public.

28. Can iwi deny beach access?
Yes. The bill says iwi can bar you from any area the iwi says is wahi tapu (sacred). Maori wardens can fine you up to $5000 for going there.

29. Would iwi really do that?
It happens now on beaches they don't even own.

30. Can we challenge a wahi tapu we don't think is fair?
No. Iwi have the sole right to decide what is sacred. You have no right to object.

Chris Finlayson: Wahi Tapu are small discrete areas of particular significance to Maori groups for cultural or spiritual reasons - for example, burial grounds. There is scope for conditions or restrictions relating to wahi tapu in customary marine title areas, and in some cases these may restrict access (for example, by designating a path through a wahi tapu area, or not allowing domestic animals). Wahi tapu conditions apply equally to iwi members and non-iwi, and are set at the time the customary marine title is granted by the Court.

Wahi tapu areas already receive protection under the Resource Management Act, the Historic Places Act, and the Foreshore and Seabed Act, and in some cases that means restrictions on public access. The same applies to many areas of culture and historical significance for other New Zealanders.

Customary title-holders may appoint wardens who have the authority to inform people of any conditions relating to wahi tapu sites, and report people whom they believe have intentionally breached conditions relating to the wahi tapu. They do not have powers to compel people to give information, or to fine people. Only Courts can fine people.

31. How much of the foreshore and seabed will iwi get customary title to?
Finlayson says 2000km of coastline. Maori MPs say much more. Key says "no one really knows" - scary.

32. Will this satisfy iwi desires?
No. Any iwi victory just spawns more claims. The Maori Party say they won't stop until the whole of our 200-mile economic zone is in Maori title.

Chris Finlayson: The Prime Minister and Attorney-General have both said this Bill represents the Government's solution to the foreshore and seabed issue, which has been like a weeping sore for the nation since controversial legislation was passed in 2004 removing access to justice for Maori. This government will not re-visit the legislation.

This Bill is clear that the definition of common marine and coastal area is out to the 12 Nautical Mile limit and claims for customary marine title are restricted to that area.

Customary title is also not capable of recognition outside of the twelve mile territorial sea under the common law. No Court has, or has ever had, the jurisdiction to recognize customary title further out than the 12 Nautical Mile limit of territorial waters.

33. Why is the Maori Affairs Select Committee hearing submissions on this Bill when in 2004, Helen Clark thought the issue was of such importance to all New Zealanders that she established a special independent Select Committee of Parliament to deal with it?
Good question!

Chris Finlayson: All select committees are independent, and report to Parliament. There are a number of reasons why a bill is referred to a particular select committee. The bill's main effect is to restore rights stripped from Maori groups in 2004 - the way the Bill is drafted, public rights are protected. For consideration of this Bill, the select committee will be joined by Act MP John Boscawen and Green Party co-leader Metiria Turei. Since United Future leader Peter Dunne was involved in a group of ministers looking at the Marine and Coastal Area Bill, all political parties will have been closely involved in scrutinizing this bill.

34. What mandate does John Key have to surrender our coast?
None at all. His mandate was to abolish the Maori seats, not champion Maori sovereignty. It's a massive betrayal.

Chris Finlayson: The Marine and Coastal Area Bill guarantees the rights of all New Zealanders in the common marine and coastal area, and restores access to justice through the Courts, and property rights. These are two core principles the National Party stands for.