Constitutional Crisis Over Foreshore & Seabed
Pacific Ecologist Double Issue 7/8 - Autumn-Winter 2004
Government proposals in Aotearoa to remove Maori property
rights only to the foreshore and seabed are discriminatory, Professor
RICHARD BOAST reports. In seeking to overturn decisions of the courts
and the Waitangi Tribunal, the government is upsetting race relations as
well as compromising the integrity of the judiciary and creating a political
and constitutional crisis.
Aotearoa/New Zealand is currently embroiled in a major
political and legal controversy over Maori ownership, and claims to the
foreshore and seabed. This debate has in turn become a catalyst for a broader,
increasingly politicised public debate about race relations and the Treaty
of Waitangi, an issue which seems to have a cyclical role in New Zealand
public affairs, sometimes dominating public debate, sometimes receding
into the background. At the moment it’s at the forefront of public and
The foreshore and seabed issue is basically a legal problem.
The legal doctrine of Native title is part of New Zealand law, just as
it is part of the law of Australia, Canada and the United States. This
doctrine, part of the Common Law, holds that on acquisition of sovereignty
by the Crown the property rights of the indigenous population continue
in force and effect until such time as they have been legally extinguished.
New Zealand Courts have now established the government never has extinguished
Maori customary title to the foreshore and seabed, so the way is open for
Maori claims to at least potentially be made to these areas in the Courts.
The legal problems relating to the foreshore and seabed
have been known for some time. They have been repeatedly pointed out in
reports and law review articles. Politicians, however, do not pay attention
to legal problems until they have to, and the recent decision of the Court
of Appeal has taken the political establishment and the public by surprise.
Some ill-judged reactions by politicians have led to angry Maori responses,
and the issue has snowballed in the midst of a not very well-informed but
vociferous public debate. Few things touch the New Zealand psyche more
than a perceived threat to the cherished right of a day at the beach.
The Court of Appeal decision in Ngati Apa
The starting point was the decision of the New Zealand
Court of Appeal in Attorney-General v Ngati Apa, released in June 2003.[i
] The litigation which led to the Court of Appeal decision originally
commenced in 1997, and was begun by eight iwi (tribes) of the northern
South Island who were concerned about local government’s marine farming
policies. The case made its way slowly through the court hierarchy, from
the Maori Land Court to the Maori Appellate Court and from the High Court
to the Court of Appeal. The Court of Appeal took almost a year to release
its judgment: plenty of time, one would think, for officials and politicians
to formulate some kind of measured response in case the government lost,
which was at least possible.
The legal point at issue related to the jurisdiction
of the Maori Land Court, a specialist court which has had a long and somewhat
] The Maori Land Court originates from the Native Lands Acts 1862 and
1865. Today the Court has jurisdiction over Maori land, a particular category
of land in New Zealand making up about 5% of the area of the country. One
of the Court’s tasks historically was to conduct investigations into areas
of “Maori customary land” – land held on Maori customary title – and to
convert such customary titles into Crown-granted freeholds. The issue,
strictly speaking, was whether the Maori Land Court could today conduct
investigations of title into the foreshore and seabed and – in given cases
– convert those areas into private title. Until this time the government
and the public had assumed the foreshore and seabed was Crown land. The
case raised the spectre of foreshore and seabed land becoming privately
owned by Maori groups who might then obstruct public access.
With respect to the foreshore, the question was whether
an earlier decision of the Court of Appeal, In re the Ninety-Mile Beach,
decided in 1962, was rightly decided.[iii
] That case reflected a legal approach to Native title which, however
appropriate at the time, was now no longer in accordance with the law of
native title as analysed in such contemporary cases as the High Court of
Australia’s decision in Mabo v Queensland (No. 2). Essentially the Court
of Appeal did four main things. It overruled its own earlier decision in
In re the Ninety-Mile Beach, significant in itself. The New Zealand Court
of Appeal can of course overrule itself, but it is usually reluctant to
do so given the consequences of over-turning settled rules of law.
Secondly, the Court held the Maori Land Court does indeed
have jurisdiction to conduct investigations of title to the foreshore and
seabed, which amounts to essentially saying that this area is Maori customary
land and does not, in fact, belong to the Crown absolutely.
It should be emphasised that the Court’s conclusions
have nothing to do with New Zealand’s sovereignty in international law
or with the sovereignty of the Crown within the country. The foreshore
and the seabed is undoubtedly part of New Zealand and is no different in
that sense from Mt Cook, Lake Taupo or the Auckland motorway. Rather, the
issue is whether the foreshore and seabed is owned fully and completely
by the Crown as property – in the same way that the Crown owns the land
underneath parliament buildings in Wellington. The essence of the Court
of Appeal’s conclusion is that the seabed and foreshore may not necessarily
be Crown property in this absolute, unqualified sense.
The Court of Appeal found further that Maori customary
title to the foreshore, if any, has not been extinguished by any general
enactment. The Court expressly declined to consider the effects of “area
specific” legislation which may have extinguished native title to particular
defined portions of the seabed. Nor did it consider the effects of earlier
Crown deed purchases from Maori. Some of these may have extinguished Maori
title in any given case, but that will depend on the circumstances, the
language used in the deed and similar considerations.
Lastly, the Court of Appeal rejected the ingenious Crown
argument that the reference to “land” in Te Ture Whenua/Maori Land Act
1992, which is the statute from which the Maori Land Court derives its
powers, excludes the foreshore and seabed.
Immediately following release of the Court of Appeal’s
decision the Prime Minister and other politicians moved quickly, perhaps
too quickly in the view of some, to announce that public rights of access
to the seabed and foreshore were not going to be compromised. In August
2003 the government released a discussion paper, Government Proposals
for Consultation. This document was not so much a set of “proposals”
as a statement of the policy decisions already taken. It set out the “four
principles” which have remained central to the approach of the government
to the issue to date. The principles were (ibid, 4):
Principle of access: The foreshore and seabed should
be public domain, with open access and use for all New Zealanders.
Principle of regulation: The Crown is responsible for
regulating the use of the foreshore and the seabed, on behalf of all present
and future generations of New Zealanders.
Principle of protection: Processes should exist to enable
the customary interests of whanau, hapu and iwi in the foreshore and seabed
to be acknowledged, and specific rights to be identified and protected.
Principle of certainty: There should be certainty for
those who use and administer the foreshore and seabed about the range of
rights that are relevant to their actions.
The Government Proposals went on to make it very clear
there could be no possibility of the Maori Land Court being allowed to
issue freehold titles (p 6):
“First, the Court of Appeal judgment has raised
the possibility of new private titles being created over parts of the foreshore
and seabed as the result of claims for customary rights, which would give
owners the power to sell those spaces and so exclude other people from
them. The government has made it clear that such an option is not acceptable
as there has been an assumption that, in general, there should be open
access and use of the foreshore and seabed for all New Zealanders.”
Furthermore (ibid, p 20):
The government’s policy is to remove private
title from the foreshore and seabed, or to regain public access and use
over remaining areas, wherever that is possible and appropriate. It intends
to deal fairly and equitably with all New Zealanders whose interests might
be affected as it pursues this policy over time. For this reason, the government
does not intend to allow freehold title to be created as a result of Maori
customary interests either.
To its credit, the government has certainly not proposed
that Maori customary rights to the foreshore and seabed simply be cancelled.
It has tried to balance competing demands for unrestricted public access
with recognition of customary rights by proposing a new statute-based system.
This involves changing the existing statutory jurisdiction of the Maori
Land Court and the High Court with respect to the foreshore and seabed
after Ngati Apa and replacing these with a remodelled new process, to be
conducted by the Maori Land Court, which recognises Maori customary rights.
The proposed system, however, stops short at allowing any possibility of
In December the government released a much more detailed
policy document, titled Foreshore and Seabed: A Framework. The December
Framework is essentially the same as the August Proposals, although there
are some differences of emphasis. Plans to eliminate non-Maori private
foreshore titles have been quietly dropped. This does open the government
to the accusation of being more willing to protect existing Crown-granted
freehold rights of non-Maori than the property rights of Maori as recognised
by the Court of Appeal. The December document contains some vague indications
that customary rights might include a commercial component of some kind,
although the details are unclear.
The December policy document was based on the assumption
that the seabed and foreshore would be vested not in the Crown – the standard
formula – but in the people of New Zealand. This was said to be “less provocative”,
but Maori were sceptical. Lawyers for Maori claimants in the Waitangi Tribunal
– including the author – argued the proposed formula was a distinction
without a difference, and amounted to a nationalisation of the foreshore
and the seabed just as much as if the area was to be vested in the Crown.
The Waitangi Tribunal agreed. The current Foreshore and Seabed Bill, the
latest guide to the government’s intentions (April 2004) has shifted ground
and now states explicitly that foreshore and seabed will be vested in the
Waitangi Tribunal Inquiry
It was inevitable the Waitangi Tribunal would quickly
become involved in the seabed and foreshore affair. (The Waitangi Tribunal,
deriving its powers from the Treaty of Waitangi Act 1975, is a permanent
commission of enquiry with jurisdiction to report on Crown acts, omissions
and policies that may be in breach of the principles of the Treaty of Waitangi).
Applications for urgency were filed by a number of groups with the Tribunal
on 22 August. At a judicial conference on 10 September Crown counsel noted
urgency was not opposed. In an oral decision on the same day Judge Wainwright
said the key issue influencing the Tribunal’s approach was that its report
must be issued in time to “influence the Government’s decision-making on
the foreshore and seabed.” The government advised it would be finalising
its policy at the end of November, so the Tribunal’s report had to be available
before then. However Judge Wainwright made it known the Tribunal was “disinclined
to schedule an urgent inquiry to focus on the process” (emphasis added:
that is, the Tribunal did not want to deal with allegations that there
had been inadequate consultation but wished to focus whether on whether
the government’s announced policy complied with the principles of the Treaty).
The hearing was originally set down for 5-7 November.
Following delays in the government’s legislative timetable
and a number of further judicial conferences to refine the issues, procedure
and evidence, the Waitangi Tribunal sat over six days on 20 to 23 and 28
and 29 January 2004 in Wellington. The hearing was presided over by Judge
Carrie Wainwright, a judge of the Maori Land Court, assisted by Joanne
Morris and John Clarke (who is Maori). Most of the iwi (Maori tribes) of
New Zealand were present - although some major iwi were not involved or
formally withdrew, preferring to negotiate the issue behind the scenes.
The Crown was represented by the Solicitor-General, Terence Arnold Q.C.
and Michael Doogan of the Crown Law Office. Maori were represented by a
number of specialist counsel. The Crown called as an expert witness Dr
Paul McHugh, of Sidney Sussex College Cambridge, one of the world’s leading
scholars on the law of aboriginal and native title. On the Maori side a
great deal of traditional evidence was called to establish the importance
of the seabed and foreshore to Maori. Essentially, however, the main arguments
were legal. What were the legal options post-Ngati Apa? How were those
options constrained by the Crown’s proposed policy? Was the policy in breach
of the principles of the Treaty?
With impressive speed the Tribunal released its report
on the foreshore and seabed policy on 4th March.[iv
] The Tribunal concluded the Crown’s policy is indeed in breach of
the principles of the Treaty of Waitangi, both in terms of Article II (which
guarantees certain fundamental Maori rights) and Article III (which protects
rights of Maori as British subjects). While breaches of the Treaty can
sometimes be justified, those criteria are not met in the present circumstances:[v
“[T]here is no overriding need for the foreshore
and seabed policy in the national interest. The Crown is not driven to
act, and so it lacks the necessary moral and legal grounds for overriding
the guarantees made to Maori in article 2 of the Treaty.”
Essentially the Crown intends to legislate away existing
Maori property rights, offering in exchange other legal processes which
are in some respects unclear and which are not as valuable as what will
be taken away.
The Tribunal accepted arguments of counsel for Maori
that the Crown’s proposed legislation is, in essence and effect, discriminatory,
given it abolishes property rights of Maori and no-one else. It said:[vi
“[T]he common law rights of Maori in terms of
the foreshore and seabed are to be abolished, and their rights to obtain
a status order or fee simple title from the Maori Land Court are also to
be abolished. The removal of the means whereby property rights can be declared
is in effect a removal of the property rights themselves. The owners of
the property rights do not consent to their removal. In pursuing its proposed
course under these circumstances, the Crown is failing to treat Maori and
non-Maori citizens equally. The only private property rights abolished
by the policy are those of Maori. All other classes of rights are protected
by the policy. This breaches article 3 of the Treaty.”
Government’s response to Tribunal’s report
In reacting to the Tribunal’s report, the government
was mindful of the flood of apparent public support for a recent speech
by the leader of the opposition, Don Brash, criticising quota systems for
Maori students in tertiary institutions and references to the Treaty of
Waitangi in legislation. Mr Arnold’s attempts as Crown lawyer to convince
the Tribunal of the value and usefulness of the proposed alternative regime
were turned against the government by Mr Brash and his colleagues as merely
demonstrating its plans to favour Maori aspirations at the expense of the
public good. The political milieu of the moment thus propelled politicians,
notably Dr Cullen (Minister of Finance) to dismiss the Tribunal’s report
and unwisely to suggest the Tribunal does not know what it’s talking about.
The government plans to legislate anyway, he said.
A recent development, complicating matters even further,
came from the unexpected quarter of the Maori Land Court itself. Following
the Court of Appeal’s judgment in Ngati Apa Maori groups not unnaturally
commenced filing applications in the Maori Land Court seeking investigations
of title into defined areas of foreshore and seabed. The Court let the
applications pile up, awaiting events in Wellington, but of course the
Court, under a duty to hear the cases before it, cannot do so indefinitely.
At a pre-trial hearing at Gisborne in early March Judge
Wickliffe, sitting as duty judge for the Court’s Tai Tokerau (East Coast)
division, rejected an application from the Crown to stay all current foreshore
and seabed cases. The Crown’s application was based on two grounds, that
the Crown intends to legislate and because the Court of Appeal decision
in Ngati Apa has been appealed by some of the parties to it – not, ironically,
the Crown as it happens – to the Privy Council. A formal judgment has not
yet been released. The application for a stay was opposed by lawyers acting
for various Maori groups, principally on grounds there was no certainty
about the government’s legislative timetable and that the appeal to the
Privy Council in another case had no application to the cases before the
Again, politicians made ill-considered public statements.
In a breach of the constitutional convention that executive government
does not criticise decisions of the ordinary courts the Prime Minister
drew attention to the tribal connections of Judge Wickliffe – who has in
fact withdrawn from further dealing with the case. The Prime Minister even
suggested the Maori Land Court might have better things to do with its
In short, the seabed and foreshore issue has led to a
political and constitutional crisis, regarding the conventions which govern
the relationship between the executive government and the courts. It’s
unusual, to say the least, for a Minister of the Crown to say that a court
of law might be wasting its time. Politically, the issue has caused significant
strains within the Labour Party and with the coalition agreement between
Labour and the United Future party. This crisis, constitutional and political,
will continue to unfold unless some sensible and pragmatic steps are taken
soon. There is already discussion of Maori withdrawing support from the
Labour party (Maori have historically tended to vote Labour) and setting
up a Maori political party.
Whether the government will have the numbers in parliament
to enact its foreshore and seabed legislation is not certain, being dependent
on the stance of the Labour government’s Maori MPs. One constructive suggestion
which has emerged is a possible royal commission on the status of the Treaty
of Waitangi and the constitution generally, an idea raised initially by
the Prime Minister and now being considered by the Cabinet. The current
foreshore and seabed bill introduced in April is essentially a political
compromise, arising out of an arrangement between the Labour government
and Mr Peters’ New Zealand First party, given that the government’s normal
coalition partners, the Greens and United Future, albeit for quite different
reasons, are not prepared to support the legislation.
Arguably the current crisis need not have happened at
all. Had the government simply appealed the original decision, had it entered
into open-ended consultation with Maori and other public sector interest
groups, a compromise position could probably have been found and certainly
the matter could have been rapidly defused. Instead the government seems
unable to stop itself making ill-judged, off-the-cuff remarks about decisions
of the courts – first with the Court of Appeal decision itself, then with
the Waitangi Tribunal’s report and now with Judge Wickliffe’s recent decision.
This has irritated Maori considerably and done nothing to resolve or clarify
matters. Now a bill has been produced as a result of a political tradeoff
which Maori are very hostile to and which can only generate continued controversy.
Government’s failure to prepare in advance for the consequences of possible
defeat in the Court of Appeal, evidently treating the litigation as just
another case it was involved in, has not served the country well.
Professor Richard Boast, LLM (Victoria University of
Wellington) MA (University of Waikato), Barrister at Law and Reader in
Law, Victoria University of Wellington. The author acted as counsel for
a number of Maori iwi (tribes) in the Waitangi Tribunal’s foreshore and
seabed inquiry and also appeared as counsel for some of the East Coast
iwi in the recent Maori Land Court decision referred to in this article.
i. Ngati Apa and others v Attorney General and others,
 3 NZLR 643.
ii. On the history of the Maori Land Court see David
V. Williams, ‘Te Kooti Tango Whenua’: The Native Land Court 1864-1909,
Huia Publishers, 1999; Richard Boast, Andrew Erueti, Doug McPhail, and
Norman F Smith, Maori Land Law, 2nd ed., LexisNexis, 2004, 65-119.
iii.  NZLR 477.
iv. Waitangi Tribunal, Report on the Crown’s Foreshore
and Seabed Policy, Wai 1071, Wellington 2004.
v. Ibid, p 129.
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