1 Apr 2010

Govt proposes foreshore and seabed as public domain

6:56 am on 1 April 2010

The Attorney-General says the Government's proposal for replacing the Foreshore and Seabed Act goes a long way towards meeting the concerns of both Pakeha and Maori.

Chris Finlayson says while not everyone will agree with the Government's preferred plan, there will be widespread support for restoring the right of people to go to court to investigate customary title.

Prime Minister John Key on Wednesday announced the Government's preferred plan for the repeal of the 2004 act.

It would mean Maori regaining the right to go to court to establish customary title, but public access would be guaranteed and nobody would own the foreshore and seabed.

Mr Finlayson he says there will be debate about the tests for establishing that title.

He says the preferred option is to set up guidelines in the replacement statute rather than to have no tests and leave it all up to the courts.

Maori Party says virtual ownership

The Maori party co-leader says if the Government's proposal goes ahead, some tribes would gain rights that are tantamount to having ownership.

Pita Sharples told Checkpoint that the threshold for establishing customary title under the current law is currently very high, but the new proposal is very different.

He says some tribes will have complete control of their area because they have lived there all their lives and their community revolves around tribal activity.

But Dr Sharples stressed that public access is guaranteed and the land will not be sold.

"Everyone has access and no one can sell - that's basic and that was paramount."

Customary title confined to small areas - Key

Mr Key says customary title will require an iwi to prove continuous use of an area back to 1840, and an historic connection that pre-dates the Treaty of Waitangi.

"My guess is it will be small and discrete parts of New Zealand and will be quite self-explanatory actually, and I think those iwi will come and negotiate directly with the Crown."

Customary title would give iwi the power to permit or decline any development plans, although applications would still go through the usual resource management process.

Mr Key says placing the foreshore and seabed into the public domain is less antagonistic to Maori than Crown ownership.

He says the Government's proposal is pragmatic, and will help to resolve a weeping sore.

Govt repackaging 2004 act, say Labour, Greens

Labour and the Green Party say the proposal is the status quo, renamed.

The Government's proposal allows Maori to establish customary rights and customary title, either by direct negotiation with the Crown, or by going to court.

The Maori Party says customary title is a property right.

But Mr Key says customary title would effectively give iwi the same rights as under the current law, and New Zealanders will have universal rights of access.

Labour's shadow attorney general, David Parker, says most of the provisions of the existing Act would be retained under the Government's plan.

Mr Parker says its possible the Labour Party might end up supporting the Government's plan, but it wants more detail on some aspects.

South Island iwi already proved title - Mitchell

A representative of South Island iwi says it's hard to tell whether the Government's preferred option offers an improvement on the current law.

Dr John Mitchell was a spokesperson for South Island iwi seeking Maori customary rights to the foreshore and seabed in the Marlborough Sounds.

He says they would argue it's the Crown that has to prove its title.

"This document says that there may be occasions when the Crown should share the responsibility for taking a case to court.

"Well I think there are some cases in our part of the world now, where it's absolutely clear cut that the Crown would have to prove that it has a valid title."

Mr Mitchell says South Island iwi have already proved their title through the Waitangi Tribunal process.

Discussion document released

The Government's position is outlined in a discussion document released on Wednesday afternoon which guarantees public access for all.

Its preferred approach is one of four options included in the discussion document.

Under the proposal, the current law would be repealed, bringing to an end Crown ownership of the foreshore and seabed.

Instead it would become public domain land, administered by a combination of the Crown, local authorities and local iwi.

Maori interests could be established either by direct negotiations with the Crown or through the courts.

That would include customary interests such as fishing and customary title, which was effectively extinguished under the 2004 Act.

But customary title would be defined by law; any such land could not be sold and public access would still be guaranteed.

The public has until the end of April to make submissions on the discussion document.