Jock Brookfield: Trusteeship may solve the problem

COMMENT

I welcome the Herald's favourable editorial reference to the suggestion, made in my submission to the parliamentary committee on the Foreshore and Seabed Bill, that the Crown should hold title to foreshore and seabed on trust for Maori customary owners where these can be judicially identified.

But the editorial surmises that the suggestion would be politically unacceptable.

It is not clear why that should be so. The suggestion should meet a primary concern, frequently expressed by Government ministers and others, that last year's decision of the Court of Appeal in the Ngati Apa (Marlborough Sounds) case has made the ownership of foreshore and seabed uncertain, so that proper marine development is impeded.

The court's decision recognises that, under New Zealand common law, Maori customary title carrying possession - "territorial customary rights" is the term used in the bill - may exist below the high watermark.

The fear is that proving whether a group of Maori claimants have territorial customary rights may take a long time, to the inconvenience and frustration of government agencies and of would-be developers, who will not know who to deal with.

The trusteeship notion may well solve the problem. There should be no need to do what the bill proposes: to declare Crown ownership below high watermark in terms that will simply extinguish Maori customary title.

No doubt this provides the certainty of ownership perceived to be necessary. But surely the same end can be achieved if, as I suggest, the Crown accepts that its ownership is subject to territorial customary rights if and when a tribal group successfully establishes them in court.

Unless and until that happens, present arrangements for development would continue under the Resource Management Act and any other relevant legislation. But the Crown would hold the rents and royalties from development for the benefit of the group entitled - that is, in trust for them.

Obviously, some time limit would have to be set within which territorial customary rights must be claimed and the claims determined. And there may well be areas of foreshore and seabed, outside any rohe or area of tribal control, where there can be no such claim. There, Crown ownership is likely to be absolute and unencumbered.

In the areas where customary territorial rights are established, suitable arrangements would be made for direct tribal management of those areas and the Crown's trusteeship would terminate. Alternatively, the Crown would continue as trustee but manage the areas in consultation with those entitled.

This is likely to be unacceptable to many Maori but even it is preferable to the proposed complete extinguishing of the rights.

All this would have to be provided for in legislation very different from much of the present bill; but which would, like it, contain provisions securing public recreational use of the foreshore and seabed (as well as public rights of navigation). Such provisions are necessary whether or not Maori have territorial rights over any particular area.

How far below high watermark could the claims extend and still be accommodated within New Zealand law? Not nearly as far as some seem to fear - or to hope. The Court of Appeal's decision relates only to the foreshore and the seabed of internal waters (tidal creeks, estuaries, harbours) and the bed of the 12-mile territorial sea.

That, of course, is a vast area but the possibility of claims is greatly limited by the fact that, to fit into the common law, they must relate to the land itself and not to the waters above, which cannot be privately owned.

Obviously, the further one gets from the shore the harder it becomes to perform the acts of territorial control and possession of the underwater land, which are the necessary bases for territorial rights.

Thus claims to the foreshore and seabeds of tightly enclosed internal waters, such as tidal creeks and lagoons, should be much easier to substantiate than claims to the bed of the 12-mile territorial sea or even of deep and comparatively open internal seawaters.

Where a claim is substantiated, the area concerned would, in effect, remain tribal land, with sacred places and burial grounds protected. It would be subject otherwise to public rights of navigation and recreation, and could be sold only to the Crown and not on the market.

The trust solution may, as the Herald says, be politically unacceptable. If it is, the Government should indicate why and, in particular, how marine development would suffer if it were adopted.

Then there is the other matter, also referred to by the Herald as likely to be politically unacceptable - the award of full compensation for a Maori tribal group's loss of territorial customary right if these are extinguished as proposed.

The bill provides merely for "redress" at the Government's discretion, after consultation between the Attorney-General and the Minister of Maori Affairs, on the one hand, and the group on the other. The provisions are discriminatory, since it is accepted that normally a person whose property is taken by the Crown should receive fair compensation independently determined.

The Attorney-General defends the "redress" provision on the ground that the discretionary element, coupled with consultation and negotiation, will ensure flexibility in cases where the appropriate redress may not be payment of money.

And, as she says, the territorial customary rights will be difficult to value since they cannot be sold on the open market.

I am not convinced by this defence and I hope our legislators and the public will not be, either. It is ironic that in the 1863 New Zealand Settlements Act, under which the Crown confiscated vast areas of tribal customary land, the settler Parliament assigned to a specially created court the task of deciding the compensation due to those tribal owners who had not taken part in the alleged rebellion.

Parliament should act similarly today.

* Jock Brookfield, a professor emeritus at Auckland University, is a former dean of the law faculty. He is the author of Waitangi and Indigenous Rights: Revolution, Law and Legitimation.