Douglas Graham: Crown must lay claim on behalf of all

Who on earth does own the foreshore and seabed? Some Maori leaders are convinced Maori have always owned them and still do.

The Government says the Crown is the owner and, if that's not clear enough, a law change will put it beyond doubt.

If the question ever got to a court to decide, which court is it - the Maori Land Court or the High Court? No wonder the public is confused.

Of course, for centuries Maori had New Zealand to themselves. When the Europeans arrived and sovereignty passed to Britain, whether by consent or by assumption, English law was to all intents and purposes transferred to New Zealand holus-bolus.

That law included recognition of the right of original people in the various colonies to continue to follow their customary activities and practices.

These "customary rights" survived the assumption of sovereignty and have been described as being parasitical to the ultimate or radical title of the Crown to all land.

Customary rights varied. A customary title carried with it the widest rights to land occupation but, even if that could not be established, rights to cross land to hunt or fish could still be claimed and upheld.

But a customary right has always been unique and is quite unlike any other rights in law. For example, a customary title is not at all like a freehold title. For a start, it can't be sold or given away to someone else without first being converted to another form by, and with the constrained approval of, the Maori Land Court.

Indeed, at common law it could only be surrendered to the Crown. The tribe could also lose a customary right by ceasing to follow the customary practice if that resulted in a severance of the physical and spiritual link with the land concerned.

What's more, once lost it cannot later be recovered because the rights receive recognition only if they are needed to follow a practice.

Finally, the rights can be extinguished by the unambiguous act of the Crown either by a specific statute, or by the Crown granting inconsistent rights to someone else over the land. Extinguishment, certainly these days, normally entails compensation of some sort. It is said it also requires the consent of the holder of the right, but ultimately Parliament can act as it thinks best.

So where does this take us? In 1840 a hapu certainly held a customary title to the marae and village where its members actually lived. It is likely also to have had rights to hunt and fish over a wider area but only if they were exercised. If an inland hapu did not fish the sea, it had no rights to fish.

Coastal hapu may not have bothered with hunting inland. Even within iwi not all hapu had the same rights. Over the years some hapu have disappeared or been absorbed into others, while for others, rights which were being exercised in 1840 may well have been abandoned long ago.

So, if a hapu wants to assert a claim to a customary title today, it would have to establish, on the balance of probabilities, two things.

First, that it was in exclusive occupation prior to sovereignty passing and, secondly, that it has continued to follow traditional practices, and no other inconsistent practices, on the land since. Thus the physical and spiritual link with the land has always been maintained.

If the factual situation can be proved, a customary title will prima facie exist. The onus then shifts to the Crown to prove the customary title has been extinguished or limitations on the right are justified.

Applying this to the foreshore and seabed then, a hapu would have to prove exclusive occupation of its particular foreshore and seabed in 1840 and that it has followed traditional and customary practices on it ever since.

Can it do this with the foreshore, let alone the seabed? It isn't quite the same as the site of a marae, is it? It is much more likely a court would hold that the hapu could not establish a customary title but might well prove a right to take shellfish and so on.

The trouble here is that our Maori Land Court can only do what its statute permits and that does not, unlike other countries, recognise such lesser interests. It would be necessary, therefore, for the ordinary courts to rule whether those lesser rights have been proved to exist.

In any event, the Government believes any customary title was extinguished years ago either by the Crown assuming ownership as part of sovereign right or, more likely, pursuant to specific statutes such as the Territorial Sea and Exclusive Economic Zone Act, and the 1854 Public Reserves Act (which dealt with the foreshore).

The Court of Appeal has allowed the hapu to claim a customary title in the Maori Land Court. The Government has indicated that would be a pointless exercise because the Crown owns it already and, if there is any doubt about that, it will pass a law to make sure it does.

So what's to be done? On the one hand, to deny a right to have the matter tested in any court is very serious. The claim might fail. And even if the hapu won, the Crown could still test the issue of extinguishment in the High Court and only then, if it lost, pass a law if it thought that was justified.

On the other hand, if the Maori Land Court awarded a customary title to this particular hapu, no doubt many others would have a go, too. It would drag on for decades. Marine farming would grind to a halt until ownership was determined. Some hapu might succeed while others would not.

The whole coastline then would be a bit here, then a long stretch of Crown foreshore, then a bit more customary, then more Crown. That would be confusing to the public.

For a long time the public has had free access to what most people believed was Crown property. If the result was that a bay here and there was declared to be customary land, would that matter too much?

What, however, if it extended to most of the coastline? Would that be fair to the thousands who over the years have come to regard the coastline as common property? I doubt it.

Perhaps the time has come to make it clear that the Crown does own the foreshore and seabed on behalf of us all.

That need not mean the hapu could not use them to collect food as they have done traditionally. Such rights could be confirmed in regulations with a proper regime put in place.

And if the resource was overexploited and some priority had to be given, it would be fair to give it to the hapu. They were, after all, here first.

* Sir Douglas Graham is a former minister in charge of Treaty of Waitangi negotiations.