Advisers warn of port, marina uncertainty

By AUDREY YOUNG, political editor

Confidential Cabinet advice to a former Government articulated fears surrounding a successful Maori claim to ownership rights of the Marlborough foreshore and seabed.

It warned of uncertain economic effects and occupation rights of marinas and ports if ownership changed, and said it could set precedents for river and lake beds.

Advisers also warned that passing a law extinguishing Maori customary title to the foreshore and seabed would be seen by Maori as expropriation, a breach of the Treaty of Waitangi and prompt calls for compensation - which it has.

"This would lead to a deterioration of the relationship between the Crown and Maori," a Cabinet paper says.

Former Maori Affairs Minister Tau Henare released the 1998 paper penned by Ministry of Justice and Department of Conservation officials on the Marlborough case.

He said he was doing so in the interests of public understanding of an issue of huge importance and complexity.

He also wanted to "counter the naughty spin" of the Government, which had been suggesting that all Maori wanted was the traditional right to collect seafood.

The paper was addressed to the Cabinet business committee and carries the signatures of former Cabinet colleagues Sir Douglas Graham as Minister of Justice, and Nick Smith, as Minister of Conservation.

It was written soon after the Maori Land Court issued a preliminary judgment that Maori were entitled to have the foreshore and seabed declared Maori customary land - one of six categories of land status in New Zealand.

The Crown successfully sought judicial review of the decision.

But a full bench of the Court of Appeal disagreed and upheld the Maori Land Court decision in a judgment issued 11 days ago.

The Cabinet paper warns that "the creation of private property rights in the coast will create new issues about public access to the beach, rights to occupy space and who determines rights to occupy space and the cost of holding occupation rights.

"A change in ownership may have economic implications on developments, which occupy space in the coastal marine area: ports, marinas and marine farms," the paper says.

"The economic effects could include increased rental for the occupation of space.

"If customary title exists with respect to the foreshore and seabed, there are implications for the ownership of minerals contained within the foreshore and seabed.

"The Maori Land Court decision also has the potential to set a precedent in terms of application of customary rights to river beds and lake bed," says the paper.

Some of the same options facing the 1998 Government after the preliminary ruling are facing the present Government after the Court of Appeal judgment:

* Enacting legislation to extinguish Maori customary title.

* Negotiations with either the Marlborough iwi or attempting to achieve a pan-iwi similar to the Sealords deal.

* Take further legal action on the decision.

The legal action now open to the Crown is to allow the Maori Land Court to investigate the Marlborough claimants' case or appeal to the Privy Council.

The Marlborough District Council, a co-respondent to the Crown, has decided to initiate an appeal with the Privy Council within the 21 day deadline to reserve its options. But it will await the outcome of legislation foreshadowed last week by Prime Minister Helen Clark and Attorney-General Margaret Wilson before finally deciding.

They initially said the Crown would assert its ownership right in legislation but have backed away after Maori outrage at the prospect of claims to customary title being extinguished.

The 1998 paper said that Maori customary title can be extinguished by the Crown through legislation to clarify ownership.

But another option could be to ascertain the extent of customary title through the courts before considering legislation to extinguish any remaining customary title.

Mr Henare said it was the first time he had released confidential Cabinet documents in the past four years but was doing so in the public interest.

"The Government has been trying to fudge it by continually, in the House and in the media, talking about customary rights, which is totally different."

Customary rights were the ability to get fish or shellfish.

"Customary title is actually ownership."

Mr Henare was a former New Zealand First Minister of Maori Affairs, then an independent. He is now a National Party member and stood in Te Atatu last election.

The Government could compensate for the loss of title, but the problem was that hapu and whanau, not iwi, held customary title.

For that reason a pan-tribal settlement would be difficult.

He said an act guaranteeing access to the foreshore and the seabed to every New Zealand citizen in perpetuity, free and unencumbered would reassure "the local Joe Bloggs". But he believed the issue should be taken to the Privy Council.


The differing views of the Crown and the court



(Extracts from the 1998 Cabinet paper)

Decision of the Maori Land Court (upheld by the Court of Appeal on June 19, 2003):

Foreshore: In brief, the Maori Land Court held that where iwi had sold their customary lands adjacent to the foreshore, the customary rights to the foreshore remained with Maori, unless expressly included in the sale or expressly extinguished since the sale by an act or other statutory instrument. An evidential inquiry is required into each of the Marlborough land sales to determine if customary title still exists. If so ... the Maori Land Court may issue title to the relevant Maori owners.

Seabed: The interim decision says Maori customary rights to the seabed remain, notwithstanding section 7 of the Territorial Sea Contiguous Zone and Exclusive Economic Zone Act 1977.

In the view of the judge, the title vested by that section in the Crown is radical title only, that is, the underlying title which the Crown has over all land in New Zealand.

In the absence of other express legislation, the act itself does not disturb Maori customary title.

The Crown's case:

Foreshore: The Crown's position, as advanced at the Maori Land Court, is that the Crown is the owner of almost all foreshore and all seabed.

The Crown accepts the presumption that Crown ownership of the foreshore does not extinguish the prior rights of Maori.

But the Crown's position is that Maori customary title to the foreshore was extinguished upon the extinction of customary title to the adjacent land either with passage through the Native Land Court ... or sale or by legislation vesting the foreshore in the Crown or third parties.

Seabed: Customary rights are extinguished by section 7 of the Territorial Sea Contiguous Zone and Exclusive Economic Zone Act 1977, which declares the seabed as having always belonged to the Crown, subject only to any grants.