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Foreshore and seabed: some initial thoughts
on the government's proposals

31 March 2010

Kia ora,

below is a copy of the Attorney General's media release about the government's proposals for the foreshore and seabed which were released this afternoon.

In brief, the government has considered four proposals - Crown notional title, Crown absolute title, Maori absolute title, and "a new approach 'public domain / takiwa iwi whanui'" - the latter is the government's preferred option. However, on first glance, it is not clear if there is any substantive difference between the "new approach" and the existing foreshore and seabed legislation, as the burden of proof would remain on hapu and iwi to prove their "customary rights and interests" either through court or in direct negotiation with the government, and regulatory responsibility would remain with the central government and local authorities.

Rather than being based on the assumption that the foreshore and seabed areas belong to hapu and iwi, the "new approach" appears to continue the assumption of Crown ownership, albeit re-named as "public domain" - a phrase and concept which dominated the last government's foreshore and seabed proposals. Similarly, the announcement of public consultation rather than consultation directly with all hapu and iwi affected by the Act seems merely to continue the injustice around the foreshore and seabed legislation. Of the four options outlined in the consultation document, only the third - vesting "ownership of the foreshore and seabed ... in Maori", with "a process for determining who would hold ownership in any given area, and the rights of others" - seems to provide a fair and reasonable way forward.

The consultation document 'Reviewing the Foreshore and Seabed Act 2004' is at and the index page with links to the consultation document, frequently asked questions, how to make a submission, and the list of hui and public meetings is at The deadline for submissions on the government's proposals is 30 April 2010.

Foreshore and seabed consultation document released

Christopher Finlayson

31 March 2010

The government is seeking feedback from the public on a consultation document released today setting out options for a possible replacement of the Foreshore and Seabed Act, and outlining the government's proposal, Attorney-General Chris Finlayson said.

"This is the latest stage of public consultation in developing a solution for the foreshore and seabed issue that recognizes and protects the interests of all New Zealanders," Mr Finlayson said. "We are very interested in hearing New Zealanders' views. They matter."

The consultation process will run from today until 30 April 2010 when submissions on the consultation document close. The Attorney-General and the Minister of Maori Affairs will also be attending a number of public meetings and hui around the country in April to consult with interested parties on the proposals.

"This discussion document follows the findings of a Ministerial Review Panel last year which found the Foreshore and Seabed Act was unfair because it only removed property rights available to Maori, and their right to access the courts, and did not balance the interests of all New Zealanders."

The Government's proposal involves taking a new approach to the issue of ownership of the foreshore and seabed, and adopting a more sophisticated way of balancing New Zealanders' interests.

The Government proposes that, instead of identifying an owner of the foreshore and seabed, new legislation would provide that no one owns, or can own, the foreshore and seabed. This area would be called a public domain. The proposal would recognise New Zealanders' rights and interests, rather than being concerned with ownership.

The public domain proposal assures New Zealanders that there will be:

  • public access for all, subject to certain limitations in discrete areas (such as health and safety restrictions around ports, or restrictions around urupa/burial grounds)
  • respect for rights and interests (including recognition of customary rights and interests, protection of fishing and navigation rights)
  • protection of existing use rights to the end of their term.

This proposal would not affect parts of the foreshore and seabed already held in private title.

The government proposes to restore the right to go to Court to establish customary title (not freehold title) as a form of recognition to parts of the foreshore and seabed, where this could be proved. The government's proposal is that the Court would apply common law principles derived from Canada's experience of customary title, and Maori tikanga to reflect New Zealand's unique circumstances. As with any Court process between two parties, it would be open to the two parties to negotiate an outcome to avoid excessive costs or uncertainty.

The consultation document describes various awards that could be made to parties that successfully prove customary title or customary rights (which would have a lower threshold).

The consultation document and further information about the consultation process and how to make a submission can be found at

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