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A submission on the foreshore/seabed controversy from Dr David V Williams, Associate Professor in Law, University of Auckland.

The Court of Appeal media release on 19 June 2003 announced that the Maori Land Court has jurisdiction to determine the status of land on the foreshore and under the seabed: "The Court stressed that its decision is a preliminary one about the ability of the iwi to bring their claims. The validity and extent of the customary claims in issue have yet to be decided by the Maori Land Court. The impact of other legislation controlling the management and use of the resources of maritime areas also remains to be considered."

This modest procedural victory for the iwi of the top of the South Island created a storm of controversy. The fierce debates about public access to beaches have little or no connection to the narrow findings of the Court of Appeal. Why is there such a fuss? The normal means to resolve ambiguities in the law is to allow a court to hear evidence and to make a ruling based on that evidence. It looks as if the Maori Land Court will never have the chance to hear evidence from the iwi of their claims to customary entitlements, let alone issue a judgment as to the property rights, if any, that might flow from any proven customary rights.

Due process of law is a fundamental concept of English common law that goes back to the Magna Carta in 1215. In this situation, however, the Government is not willing to permit due process of law. Without waiting for a proper judicial inquiry into the land rights involved, the Government first insisted on Crown ownership and then came up with the notion of ‘public domain, with open access and use for all New Zealanders.’ This hasty action is a serious and unnecessary breach of rule of law values.

Any Land Court judgment about Maori customary rights over land below mean high tide could not possibly impede open access to coastal land and beaches. Moreover, it is highly unlikely that the Land Court would issue a freehold title to such land based on customary usages. Far more likely is that the court would follow modern Canadian Supreme Court precedents:

"Where an aboriginal group has shown that a particular practice, custom or tradition taking place on their land was integral to the distinctive culture of that group then, even if they have not shown that their occupation and use of the land was sufficient to support a claim of title to the land, they will have demonstrated that they have an aboriginal right to engage in that practice, custom or tradtion."

If the Government had not intervened, then we would wait for the Land Court hearings to take place. After due process, then the questions would be: how do we provide appropriate protection for any tikanga Maori practices that have been proved by evidence? Are there ways to modify the practices in a consensual way so as to minimise disputes with other sea-users? At that stage there might be a role for the Government to enter into negotiations with iwi and hapu concerned. Any conflict between customary entitlements and the rights of others with lawful access to sea areas would have to be balanced. Balancing competing interests is something that happens every single day under existing laws in the various councils and courts of the land.

The problem with the Government’s current heavy-handed intervention, and the vociferous remarks by many Pakeha who seek to pressure the Government, is that Maori people resent the confiscation of their rights even before they have been ascertained. Not surprisingly, many Maori spokespeople then ramp up their demands for ‘ownership’ in order to put their own pressure on the Government. Division and social tension result. If a court decision came out about the exclusive property rights of Pakeha with riparian ownership rights, or even the claim to ongoing rights by Pakeha who have built baches on Crown land, would there be such a national uproar? Why is it that there is an uproar when Maori seek by court process to protect their customary rights?

A few years ago Justice Eddie Durie asked: "When will the settlers settle? When will we hone our jurisprudence to one that represents the circumstances of the country and shows that our law comes from two streams?" The foreshore/seabed litigation was a magnificent opportunity to acknowledge that the tikanga Maori stream of law does have status alongside English law in the common law of Aotearoa New Zealand. That opportunity will be lost, and a new Treaty of Waitangi grievence will arise, if we cannot just take a breath, and find out a bit more about Maori customary rights, before we jump up and down.

My submission is that the Government should withdraw its current proposals and await the outcome of a test case before the Maori Land Court before further elaborating policy or legislation proposals.

David Williams
30 September 2003

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