Go-ahead for iwi on seabed

By AUDREY YOUNG

A Maori claim to the ownership of the seabed and foreshore has moved a step closer with a landmark decision from the Court of Appeal giving them the green light.

The Court of Appeal yesterday said the Maori Land Court was able to hear Maori claims over customary title to the seabed and foreshore.

The Court of Appeal said it was a decision on jurisdiction, not the validity of the claim in question, which is based on Marlborough.

But Chief Justice Sian Elias also said that the transfer of sovereignty in New Zealand to the Crown "did not affect customary property".

"They are interests preserved by the common law until extinguished in accordance with law."

The effect of the decision is to say that Maori continue to hold customary property rights unless they are lawfully nullified. The Maori Land Court will decide, in this case, whether any laws or other factors have nullified it.

The decision is likely to encourage many more iwi to consider claims for parts of the New Zealand seabed and foreshore.

The foreshore is defined as the land between high-water mark and low-water mark.

Lawyer for the Marlborough District Council Peter Radich said that while it was a decision on jurisdiction, it was still a significant decision.

"It changes the perception that many people had for many years that the foreshore and seabed was Crown-
owned. It may be held to be [in the substantive case] but I think we all thought that there wasn't an issue to be argued about. But there plainly is."

It was too early to say whether his clients or the other respondents might appeal to the Privy Council against the Court of Appeal decision.

The Waitangi Fisheries Commission, which has funded the iwi claim since 1996, welcomed the decision and said there was no need for other New Zealanders to be threatened by it.

But commissioner Maui Solomon also said the decision "reinforces our view that the legal rights of iwi to the foreshore and seabed have never been extinguished".

The Crown is the first respondent but acting Attorney-General Pete Hodgson said the Government wanted to carefully consider the judgment before commenting.

National MP Nick Smith is calling on the Government to appeal to the Privy Council.

Another option for the Government is to pass legislation clarifying ownership of the foreshore and seabed.

Dr Smith said the court decision would "open the floodgates" to more Maori claims over beaches, estuaries, harbours and almost any stretch of coastline.

He said the Maori Land Court was "never intended as a court to deal with issues of foreshore and seabed".

"The foreshore should not be privatised by stealth. It should be protected and managed for the benefit of all New Zealanders."

The Marlborough case goes back to 1996 when eight iwi from the top of the South Island lodged a claim in response to concerns about marine farm consents in the Marlborough Sounds. The iwi were Ngati Apa, Ngati Koata, Ngati Kuia, Ngati Rarua, Ngati Tama, Ngati Toa, Rangitane and Te Atiawa.

The Crown in 1997, under a National Administration, appealed against the land court's right to hear a case on the seabed and foreshore.

It won its appeal in the High Court but the iwi appealed against that decision in the Court of Appeal and won yesterday.

The decision overturns the Ninety Mile Beach decision which has stood for 40 years. It held there could be no customary title from the high-water mark to the low-water mark where the adjoining land had been sold.
The Marlborough District Harbour Board has argued that the statutory powers vested in it nullify Maori customary title in their area.

Mr Solomon said he could understand there would be concern at what lay ahead.

"I don't think Pakeha New Zealanders have a lot to be afraid of.

"The fact is in submissions to the High Court and the Court of Appeal, Maori claimants made it clear they didn't intend to disrupt the existing rights of marine farmers."

There was an issue of revenue from property rights and an issue of Maori economic development.

"We want to participate in marine farming development."

Maori wanted to be involved in the process, not to the exclusion of others.

The claim

> Eight South Island tribes have claimed customary rights to the Marlborough seabed and foreshore (the land between the high and low water mark).

> If they win, many other stretches of coastline around the country are also likely to be affected.

> The Court of Appeal has now ruled that the Maori Land Court should hear the tribes' case.

> The decision does not mean the tribes have won - but there is a legal issue to be decided.