Maori can be guardians, not owners of coast

By RUTH BERRY

Maori groups that would have won foreshore and seabed aboriginal title claims can opt to become guardians of reserves managing the areas for the public, under final changes to the Foreshore and Seabed legislation tabled late yesterday.

Deputy Prime Minister Michael Cullen was vague about how many groups would meet the test, saying this would depend on the High Court's investigations of the claims.

But it is understood the Maori caucus believes they could yet cover more than 10 per cent of the coastline.

Just how much power the boards managing the reserves will have was also unclear, with Dr Cullen saying that would be subject to agreements reached with local authorities and the Crown.

The Resource Management Act enables councils to almost fully devolve management responsibilities.

But the revised Foreshore and Seabed Bill, set to be rushed through under urgency by Friday, specifies the boards will not be able to collect fees for activities within the reserves.

It also protects public rights of access and navigation and reserve management plans will have to comply with the Resource Management Act.

Under the bill groups with strong claims can go to the High Court for a declaration that, but for the Crown's assertion of ownership, the common law would have recognised they held aboriginal title - or a territorial customary right.

Courts have not investigated what such titles would have conferred had the Government not legislated, but it is likely they would have been constrained by public access and navigation rights.

The bill lays out the template for the reserves model, which the Government claims sets out in law the type of rights the High Court would have found existed if it had embarked on a common law inquiry.

The Government still maintains the failure to fully assert its ownership, as exposed by the Court of Appeal, was unintended.

The bill yesterday spelled out the test whanau, hapu and iwi would have to pass to get a "reserves" order.

They would have to prove they exclusively used and occupied the foreshore and seabed since 1840 without substantial interruption and that they had held continuous title to contiguous or adjoining land.

Marginal strips, esplanades or similar pieces of land in between the land and the foreshore would not break the contiguity test, the bill said.

The bill states, as previously, that groups with strong claims can bypass the High Court and go into direct negotiation with the Government to reach a deal. Several East Coast iwi are already in direct negotiations with the Government.

It also says groups can go through the High Court and ask it to order the Government into negotiations if they seek a different solution to the reserves model.

The Government's Maori caucus said yesterday the reserves provision and other changes acknowledged the relationship Maori had with the coastline.

Tainui MP Nanaia Mahuta was at the caucus press conference and said she would speak in support of the changes. She indicated she may yet finally vote for the third reading.

Other changes to the bill have resulted in a stronger provision stressing the Crown's obligation to protect Maori associations with the coast.

As predicted, the ancestral connection orders, which groups would have had to apply for and which were heavily opposed in submissions to the select committee, have been dropped.

The Maori Land Court will continue to be able to award customary rights orders to groups that want to protect activities or practices they have carried out over the foreshore.

Dr Cullen reiterated his view yesterday that few such rights now existed. He accepted there was little in the bill for most Maori groups, but argued the Court of Appeal ruling had opened the door to nothing more.

Maori continued to criticise the legislation yesterday.

"This is a black day for Maori," said Hauraki Maori Trust Board spokesman John McEnteer.

"They will rue the day that they pass this legislation, both Labour and New Zealand First."

Ngai Tahu spokesman Mark Solomon said it had been pushed through with undue haste against the will of the people.

Federation of Maori Authorities spokesman Paul Morgan said he was appalled at the way Parliament was rushing it through.

National Maori Affairs spokesman Gerry Brownlee said the Government was showing utter contempt for the public by ramming the changes through under urgency.


What the bill does

Asserts Crown ownership over the foreshore and seabed.

Prevents Maori from seeking title to them.

Says Maori groups with strong ownership interests can protect them by establishing reserves managed for the use and benefit of the public - or negotiate a different, but similar, deal.

Enables Maori Land Court to make customary rights orders protecting the right to carry out traditional activities.


Main foreshore bill changes


A stronger purposes provision in part one of the bill stresses the act's aim is to preserve the public foreshore and seabed in perpetuity as the common heritage of all New Zealanders in a way that enables the Crown to protect it for all people. This includes protecting the association of whanau, hapu and iwi with foreshore and seabed.

Redress more clearly defined. Maori groups with strong aboriginal title claims will be able to apply to have the High Court order that an area is set aside as a reserve, with the applicant group defined as guardians. A management board will be established but it can't take fees for the use of the foreshore and seabed.

Ancestral connection orders are dumped and Maori traditional association with foreshore and seabed are recognised in the purpose provision.

Customary rights orders. These must be based on tangible uses and activities and not issued in response to spiritual associations.

Reclaimed land. Any title negotiations under way for reclaimed land will proceed, but no future titles will be issued. Maximum 50-year leases for reclaimed land, but port companies get an automatic right of renewal.