The government released a discussion document this week that seeks submissions on its proposals for the replacement of the Foreshore and Seabed Act 2004. The discussion document sets out four basic options for the ‘ownership’ of the foreshore and seabed, though most of the detail focuses on features of the government’s preferred option of the foreshore and seabed becoming an area of ‘public domain’. The proposals are, without doubt, an improvement on the 2004 Act but they fail to address substantively many of the problematic aspects of that Act.
The four options for ownership of the foreshore and seabed that are identified in the discussion document are:
- Crown notional title – Crown acts as interim owner until customary title is investigated, with property rights being confirmed in Māori or the Crown on a case-by-case basis;
- Crown absolute title;
- Māori absolute title; and
- Public domain/takiwā iwi whānui – no one would own the foreshore and seabed (except existing land held in private title. Specific roles and responsibilities in relation to the foreshore and seabed would be allocated depending on the existence of customary rights and other interests.
As noted above, the government’s preference is option 4 – under which the foreshore and seabed would become public domain. The reasons provided in the discussion document for favouring the public domain option are not entirely convincing. In particular, there is no explanation of why Māori absolute ownership is “unlikely to allow the interests of all New Zealanders to be balanced”. The shift from Crown ownership (as per the current legislation) to ‘public domain’ seems to me to be largely cosmetic. Nevertheless, I accept that this is, at least, an important symbolic statement.
While no one would be able to own the foreshore and seabed, various rights and interests less than freehold title would be recognized under the government’s proposals. Similarly to the existing legislation, the government is proposing that two types of customary interests be recognized:
- territorial interests - “customary interests that are territorial in nature and extent”; and
- non-territorial interests – “customary uses, activities and practices”.
Under the proposed replacement legislation, if such interests are proved, specific awards would be available to protect those interests. These awards would primarily provide a greater role in environmental management for iwi or hapū with a proven customary interest. These awards are by no means insubstantial. As the Ngāti Porou agreement illustrates, these types of outcomes may be available at present, though there are no guarantees that all iwi or hapū with customary interests could achieve the same outcome through negotiations with the Crown. The requirements of proving a customary interest would also be less demanding under the government’s proposals and having an identified range of ‘awards’ to draw on would be helpful for all concerned. The proposal to include reference to tikanga Māori in the tests to recognize customary interests would also be a significant improvement, though this is still a long way from the advocated recognition of tipuna title.
And the possibility, that existed after the Ngāti Apa decision, of being awarded exclusive title would not be re-instated under these proposals. The discussion document notes that Canadian common law and Te Ture Whenua Māori Act 1993 both allow for the award of exclusive title where the requisite customary interest has been proved but the discussion document goes on to state “The government does not support these awards because they do not provide for a role in environmental management processes”. It is not clear why it is thought that one type of award should preclude the other, nor whether the views of Māori have been sought as to which type of awards would be preferred by Māori.
So fundamental problems still remain with the government’s proposals. The proposals would exclude existing private title, just as the current legislation does. Consequently, it would remain the case that only Māori property rights would be affected. So, the discriminatory aspect of the current legislation that has been criticized by various human rights bodies is not addressed. There is also the central problem, identified by both the Waitangi Tribunal and the Ministerial Review Panel, that the current regime takes away Māori property rights and replaces them with lesser rights. The government’s proposals make those lesser rights easier to achieve, but it still appears that property rights are to be substituted, largely, by the opportunity to participate in administrative processes.
The proposals are certainly an improvement on the Foreshore and Seabed Act 2004. But then, almost anything would be. It is difficult to discern in these proposals any real shift in the Crown’s attitude to Māori interests in the foreshore and seabed.