The Crown versus the rest in seabed debate

By AUDREY YOUNG

While plenty of the legal fraternity were throwing back gin and tonics at the beach house over the sweltering summer, their brethren in the much-derided "treaty industry" were beavering away working on their clients' submissions for an urgent Waitangi Tribunal hearing on the Government's foreshore and seabed proposals.

For the past two weeks, the Westpac stadium in Wellington has been a fitting venue for the legal football match - the Crown v the rest.

It has been a rush job by anyone's standards since the Court of Appeal ruled last June (in a case known as the Ngati Apa case) that the Maori Land Court's jurisdiction could extend to the foreshore and seabed - the upshot being that parts of the foreshore and seabed could have ended up being declared customary Maori land and converted to a tradeable fee simple title.

Even Solicitor-General Terence Arnold was mindful of the pressures the timetable had put on his learned friends, generously dismissing an error of law admitted by one of the more senior counsel as a consequence of the time constraints they were all under.

Ostensibly the tribunal's brief is to see the Government's proposals are consistent with the principles of the Treaty of Waitangi.

Unsurprisingly, it became a more general contest over the merits of the plan.

Last month the Government produced refined proposals to turn into legislation by March.

It says the Ngati Apa ruling is an unintended consequence of an overhaul of the Te Ture Whenua Maori Act 1993.

The plan will stop the Maori Land Court from privatising the foreshore and seabed but give it new powers to identify and register customary use rights against a title, that title being a new statutory definition of a "customary title" far removed from its common law origins.

The common law recognises aboriginal title as a particular right exercised by an indigenous people who have had a continous connection with a particular area, a right that survives sovereignty.

But the Government's proposals also shut off the avenue of Maori pursuing customary rights under common law (it has been done in Australia and Canada but not in New Zealand).

Arnold faced the overwhelming view from claimants that the Government should have done nothing after the Ngati Apa ruling, which would have allowed claimants to pursue cases under either jurisdiction, the common law jurisdiction of the High Court and the newly identified avenue of statutory jurisdiction of the Maori Land Court.

The move against the Maori Land Court extinguishes (the Government hates that term) a possible property right identified in Ngati Apa - but the Government argues that in return, its new regime gives Maori greater recognition, protection and management rights over their coastal territory, and even the possibility of "redress" in compelling cases.

The Crown's Jonny Wilkinson witness, of sorts, was the highly reputable scholar Paul McHugh, a New Zealander who teaches at Cambridge University.

In his knowledge, aboriginal title under common law had and never could amount to exclusive ownership and would not have been the panacea many Maori had hoped it might be.

That bolstered the Crown view that Maori could not lose something they never would have gained.

The thrust of the arguments was:

FOR THE CROWN

Solicitor-General Terence Arnold

* The Maori interests in the seas is not the "full, exclusive and undisturbed possession" of the English text of the treaty. Maori agreed to and accepted the existing and projected settlements and emigration referred to in the preamble and thereby agreed that the Europeans too would "belong".

* The treaty did contemplate and provide for the voluntary relinquishment by Maori of their interests in their properties and taonga.

Historically, property and taonga were relinquished by Maori.

Sometimes this occurred in a treaty-consistent manner and sometimes it did not.

The present effect, however, is that it cannot be asserted as a generalisation that Maori never relinquished their tino rangatiratanga over the foreshore and seabed.

Although the ancestral relationship may always remain, it seems reasonable to assume that in many areas important aspects of the Maori relationship with the foreshore or seabed has been diminished or reduced.

* While the common law may well recognise a range of customary interests in the coastal marine area, including rights of an exclusive kind, they cannot amount to a fee simple equivalent because in the coastal marine environment they must exist alongside other rights and interests such as rights of innocent passage and statutory and common law fishing rights.

* If the Maori Land Court addressed foreshore and seabed by applying the techniques it has used on land, it would assume these areas were customary land in the absence of purchase or other act of extinguishment.

This would mean that evidential requirements would be minimal.

* The Government's development of the policy has been criticised on the ground that the Government does not have a complete knowledge of all the customary interests of whanau, hapu and iwi that may be affected. The Crown acknowledges that there will be variations in customary interests based on tikanga [custom] and that there is legal and factual uncertainty about customary rights.

But it says the new framework will provide clarity and certainty and is sufficiently general to accommodate the great majority of customary interests.

* This policy is a forward-looking one - it is not intended to deal with treaty breaches (although it may incidentally assist in the provision of redress for past breaches). Customary title at common law is preservative, not restorative doctrine.

The Crown will continue to think creatively about redress for past breaches, including options in relation to the foreshore and seabed.

Crown witness: Dr Paul McHugh, aboriginal title law specialist, University of Cambridge:

* Although specific rights over the foreshore and seabed are possible, under the common law there can be no presumptive ownership of these areas.

Australian and American case law indicate aboriginal ownership of the seabed (in the sense of exclusive fee simple title) would be regarded as inconsistent with the inherent character of Crown sovereignty.

* Any prospective statutory declaration by a New Zealand statute that there could be no Maori ownership of the foreshore and seabed would not extinguish any rights they might hold under common law.

Since the common law cannot recognise exclusive ownership of the foreshore and seabed, it follows that this declaration would not be removing a legal right.

Although I believe there may be very substantial Maori rights over the foreshore and seabed, there can be no exclusive ownership.

* There has been considerable aboriginal case law in Canada and Australia in the past decade, much of it springing from the hope of tribal nations to exploit those rights in a more proactive manner.

For tribal nations, the outcome has been decidedly mixed. On the one hand, common law aboriginal title has prodded governments into major settlements, yet on the other, the doctrine has been fastened to its original preservationist aim.

That mooring - some consider it shackling - has stifled tribal nations' attempts to realise much of their aboriginal title's commercial potential.

So far the New Zealand legal system has avoided a full engagement with common law aboriginal title.

FOR THE CLAIMANTS

Annette Sykes for Nga Rauru o Nga Potiki and others:

* To fully grasp the concepts and implications of a Maori worldview of papa [the bed of the earth] is to reconfigure the Western mind, such that notions of metrics become absent.

Physical delineations become unnecessary; "mean high water spring marks" and other such terms are rendered fanciful and irrelevant.

For the foreshore/seabed can only be delineated in terms of the emergence of energies and inter-relationships of the various atua [Gods]. The foreshore/seabed is papamoana, continuing into what the "Angloglot" calls the mainland.

So the energies may change when Papatuanuku [Mother Earth] meets Tangaroa [God of the Sea] but nevertheless, Papatuanuku still exists throughout.

Grant Powell for Te Ope Mana a Tai and others:

* The Crown has throughout the process been guided by political imperatives rather than its obligations to Maori under the Treaty of Waitangi, the common law of New Zealand and international law.

A feature of this has been the unreasonable haste with which the Crown has and continues to proceed.

The only immediate practical effect of the customary title is to provide a vehicle for the notation of specific customary rights if they are found to exist.

A customary title in terms of the proposals otherwise has no legal or other effect. For it to be worth anything at all, they are dependent on the outcome of the negotiations undertaken by the regional working groups.

Even then, the best that can be hoped for is that the customary title may give rise to "enhanced participation opportunities" in "decision-making processes".

James Johnston for Ngapuhi Nui Tonu:

* The Crown policy fails to adequately address the critical issue of what Ngapuhi Nui Tonu will receive for the significant and extensive rights that are being taken away.

Ngapuhi Nui Tonu are expected to give up their rights to obtain a fee simple title to the foreshore and seabed and, in a leap of faith, trust the Crown when they do not know with any certainty what those rights are to be replaced with.

Richard Boast for Ngati Oneone and others:

* The failure to propose any compensatory arrangements is contrary to constitutional conventions and more than 150 years of public works legislative regimes based on fair compensation.

The expropriation is clearly discriminatory as it will impact only on property-holders defined by an ethnic criterion (Maori).

Indeed, if the action was otherwise than by statute, it seems certain it would be a breach of the Human Rights Act.

Tim Castle for Ngati Apa and others:

* The fiduciary duty (protective duty) imposed on the Crown must be informed by the nature of the rights such a duty would be expected to protect.

If the Crown does not know the nature of the rights it cannot, therefore, have the knowledge necessary to discharge its fiduciary duties sourced from those rights.

If the Crown was complying with its treaty obligations and its common law fiduciary obligations (including its duty to be informed), it would not prevent proper inquiry to establish the status of lands potentially subject to customary title.