The Foreshore & Seabed

February 5th, 2010 at 1:59 pm by David Farrar

’s has just put out a newsletter (EQ Summer 2010) focusing on the Foreshore & Seabed issue.It is a very interesting analysis of the extensive background to the issue, and some of the risks the Government faces. It is a complex area.

My firm, , did some polling of New Zealanders on the issues around the Foreshore & Seabed, and Matthew talks about some of the interesting findings:

There is evidence of considerable public goodwill towards resolving the foreshore and seabed issue in a sensible way. According to the Curia polling carried out for Exceltium, 64% of the public support a reconsideration of the Act, including 54% of those who voted Labour in 2008, 69% of women and a massive 72% of those who voted National. This is despite 44% of the public saying they are happy with the ways things are now, with only 39% disagreeing with this proposition.

So most Labour and National voters support a reconsideration, but some also say they’re pretty happy with the status quo.

Neither main party’s handling of the issue in the mid 2000s now scores well among the public. There is strong agreement that Labour handled the issue poorly, with 46% saying its handling was “poor” or “very poor”, and only 16% prepared to say it was handled “well” or “very well”. In contrast to what suggested at the time, more people (36%) now claim to have disagreed with Dr Brash’s Orewa speech than those who say they agreed with it (25%). Remarkably, only 12% of National voters in 2008 now say they “strongly agreed” with their former leader’s speech. These figures suggest a degree of revisionism by voters about their own opinions in 2004.

I was surprised at how much opinion has changed over the five years. To some degree I think this is because of the media constantly referring to the Orewa speech in such negative terms.

As many as 70% of respondents to the Curia poll say they are “not at all informed” or only “a little informed” about the issues around the Act. Just 8% say they are “highly informed”. This is confirmed by the fact that 36% of New Zealanders believe that less than 10% of the coastline is currently owned privately and only 20% of people believe more than 20% of the coastline is in private hands. In fact, about 30% of the coastline is currently owned privately.

The unbroken Queens Chain is more myth than reality.

Of propositions tested by Curia, overwhelmingly the public agreed most strongly with the statement “the Government should ensure equal access to the foreshore and seabed for everyone”. As many as 59% of people strongly agreed with this proposition with another 27% somewhat agreeing. Just 6% disagreed. Access overwhelmed even ownership as an issue with 62% agreeing with the statement “I don’t mind who owns the foreshore and seabed, so long as I can access the beach whenever I want to.” Consistent with this, 59% say “private owners of coastal areas shouldn’t be allowed to exclude the public from using the area.”

Access is not the only issue, but for most Kiwis the biggest issue. They want more access, not less.

Second only to agreement with the proposition about equal access was agreement with the statement “the Government should not pass a law to remove the right of any group of New Zealanders to take a claim to court.” As many as 62% of New Zealanders agreed with that statement – 30% strongly agreeing – and only 21% disagreed. Half the population
agree with the statement “the courts are the right place to decide who owns the foreshore and seabed” with only 31% disagreeing.

That was 3:1 against the Government removing the right to take a claim to court.

“Special rights ” for Maori opposed but “custo mary rig hts ” ok

In contrast with the view that the courts are the best place to resolve the foreshore and seabed issue, 48% of respondents to the Curia poll agree the Act was “too generous” to Maori as it gave them “special rights”. It is not clear what the public defines as “special” because 53% of the population appears to agree the law should provide for local Maori to undertake customary activities on beaches where continuity of use since 1840 can be proved.

It is interesting how some people say they are against “special rights” but they are for “customary rights” when it is explained what these are.

What was also very interesting (to me anyway) is that some people said they both agreed the Foreshore & Seabed Act was unfair to Maori as it took away their right to go to court, but also that the FSA was too generous to Maori as it gave them special rights.

Now some of this may just be the way the questions are worded – they were designed to see how people respond to the issue being framed that way. But in fact, in my opinion, it is quite valid to have a view that the FSA was both unfair to Maori and too generous to Maori.

I’ve blogged on this before, but it comes down to the difference between depth and breadth.

In my opinion the FSA was unfair to Maori as it legislated away their chance to test in court their claims to foreshore usage, right down to the possibility of gaining title in some areas. This was unlikely, but it was possible. And if the law is that title exists, then that has to be negotiated away or compensated.

But while the FSA reduced the depth to which a claim could go, it increased the breadth. It made it much easier for a wider range of Iwi and Hapu to claim rights over a greater area of foreshore & seabed than the Court of Appeal decision would have probably allowed.

Now some in Labour claimed their FSA gave more to Maori than they would have got in court. Parekura Horomia said this in a debate with Derek Fox. Fox’s response was that may be the case, but they would the precedent of legislating away the right to go to court, in return for a unilateral “gifting” of rights is a bad one.

It will be interesting to see what proposals emerge from the Government. Exceltium strongly advocate that the matter should return to the courts. It is a pity that Labour in 2004 did not appeal to the Privy Council, rather than legislate, so we would have had the benefit of a definitive legal ruling from our (then) highest court.

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30 Responses to “The Foreshore & Seabed”

  1. NeilM (370 comments) says:

    “There is evidence of considerable public goodwill towards resolving the foreshore and seabed issue in a sensible way.”

    just goes to show how badly out of touch Labour is. from Goff’s nationhood speech –

    “But for all the criticism I have heard, most people accept that the current foreshore and seabed rules aren’t broken and they’re a good foundation for moving forward. They believe its good legislation for all New Zealanders.”

    Labour have opted out of working towards a resolution thinking they can win support from rednecks. Too bad for them the public are a liitle more enlightened.

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  2. Graeme Edgeler (3,290 comments) says:

    It is a pity that Labour in 2004 did not appeal to the Privy Council, rather than legislate, so we would have had the benefit of a definitive legal ruling from our (then) highest court.

    The problem isn’t that we don’t have a definitive ruling, it’s that we do. The prospects of the Privy Council doing anything remotely different are basically nil.

    The pity isn’t that the Government didn’t appeal, it’s that they did. The ruling of the Maori Land Court that there was the possibility of some form of customary title should have been left to stand, and only appealed after the court had actually ruled whether there was such a title on the facts.

    By taking the appeal at an early stage, on a hypothetical question, the government got a hypothetical answer.

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  3. mickysavage (786 comments) says:

    “What was also very interesting (to me anyway) is that some people said they both agreed the Foreshore & Seabed Act was unfair to Maori as it took away their right to go to court, but also that the FSA was too generous to Maori as it gave them special rights”

    Sums up the situation perfectly. Labour’s attempt to find a middle path was doomed to failure. Both “camps” had by then been whipped up into an unreconcilable frenzy.

    Brash’s over the top rhetoric at the time meant that a civilised public debate would never occur.

    Key’s response will be interesting. Does he allow for the creation of title for any rights Maori may have and annoy the hell out of the rednecks? Or does he extinguish any residue rights that Maori may have and consign the Coalition agreement as well as race relations to the dustbin.

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  4. Graeme Edgeler (3,290 comments) says:

    Does he allow for the creation of title for any rights Maori may have

    The law around this is/was clear. There is no prospect that Maori would have obtained rights by going through the courts. Only iwi and hapu had the prospect of obtaining these rights.

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  5. Johnboy (16,994 comments) says:

    Could you please show a little more balance in your posts micky. I don’t mind being referred to as a “redneck” as long as you start calling the earlier immigrants “brownnecks” instead of “Maori”.

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  6. NeilM (370 comments) says:

    “Labour’s attempt to find a middle path was doomed to failure.”

    The FSA was Labour’s attempt at a middle path?

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  7. Graeme Edgeler (3,290 comments) says:

    The FSA was Labour’s attempt at a middle path?

    Yes.

    It’s the reason they were attacked from the left (and right) for taking too much from Maori and attacked from the right (and left) for giving too much to Maori.

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  8. ernesto (257 comments) says:

    DPF: “In my opinion the FSA was unfair to Maori as it legislated away their chance to test in court their claims to foreshore usage, right down to the possibility of gaining title in some areas. This was unlikely, but it was possible. And if the law is that title exists, then that has to be negotiated away or compensated.”

    Ummm… wasn’t that a bullshit Labour line you’re recycling. For a little clearer perspective:

    Tribunal Report on the Crown’s F & S Policy: “The policy underestimates the number and quality of the rights that we think are likely to be declared by, in particular, the Maori Land Court under its Act. We think that the Maori Land Court would declare that customary rights exist, and at least sometimes these would be vested as a fee simple title.”

    Joe Williams, Chairman and now High Court Judge specialising in Maori issues in the High Court.

    [DPF: I think the Court of Appeal decision spoke for itself when they said the barrier was high]

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  9. Manolo (14,044 comments) says:

    “.. you start calling the earlier immigrants “brownnecks” instead of “Maori”.”

    How do you dare calling them that?

    Remember Maori were a peaceful collection of tribes. They made a great civilisation, on par with the Egyptians, Greeks, Mayans, and Incas, which built monumental edifices, made astonishing scientific findings, and had an advanced culture.

    Any opinion to the contrary is a futile attempt to rewrite history.

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  10. Fale Andrew Lesa (473 comments) says:

    Oh come on people, everyone knows that one of the biggest Conservative idealism’s today is to “favour the less fortunate” (in this case Maori) and provide for their every want, need or desire.

    What ever happened to the “old” NZ Conservatism we use to love and adore? Oh well, we can still use Helen Clark as our “evil Socialist” scapegoat.

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  11. big bruv (14,137 comments) says:

    I am buggered if I know why Neville Key wants to re open this can of worms, should he decide to give away our rights (as he is most certainly going to do) to visit public beaches then watch his popularity drop like a stone.

    Middle NZ feels so strongly about this it is not beyond the realms of possibility that we could indeed have a Prime Minister called Goff within the next two years.

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  12. PaulL (6,043 comments) says:

    I’m fine in concept that it matters not who owns them, so long as we have access. And if it makes some people happy to have some sort of “ownership” without taking away access, then potentially that’s a win-win.

    The problem with woolly decisions like this though, is that they take on a life of their own. It’s like putting the “principles of the treaty” in legislation. It means nothing, so it means everything. As we saw in the South Island, a lake that was given back, with supposedly a right to fish for eels, now has an eel license fee. The courts basically said “you gave ownership, that must have meant something, and the right to levy fees seems like the kind of thing an owner could do.”

    So if we give ownership of the beaches, will some iwi decide to levy fees for visiting the beach? Will they line up and hassle people who visit on the basis that they “own the beach” – basically make other NZers feel unwelcome? These aren’t hypothetical discussions, both these things have happened in the past with these fuzzy deals.

    On the Don Brash thing – I’d suggest a different survey. 1. Ask people if they agree with what he said. 2. Give them the speech to read, then ask again. You’ll find 70% don’t agree at point 1., and 70% do agree at point 2. What the media make out that he said, and what he actually said, are completely different. See MickySavage in that same vein above. Shit, all Brash ever said was that he didn’t see why you’d target government services based on race, unless race uniquely discriminated those who were in need. And that so far as he could tell, poor white people had just as screwed up lives as poor brown people, so surely we’d give services to poor people, not to brown people.

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  13. bchapman (649 comments) says:

    Sorry if I’m confused- but what ‘rights’ will Maori have if you repeal the FSA?

    Then they will have to go back to the courts and prove continuous occupation on an case by case basis would they not.

    This will be good for the lawyers.

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  14. mickysavage (786 comments) says:

    what ‘rights’ will Maori have if you repeal the FSA

    They will have the right to go to court to try and get title for something Labour did not want anyone to get title for (the foreshore)

    Despite the incessant comments to the contrary, Labour did not legislate away their right to go to court. Under section 33 of the FASA

    “The High Court may, on the application of a group, or on the application of a person authorised by the court to represent the group, make a finding that the group (or any members of that group) would, but for the vesting of the full legal and beneficial ownership of the public foreshore and seabed in the Crown by section 13(1), have held territorial customary rights to a particular area of the public foreshore and seabed at common law. “

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  15. Bed Rater (239 comments) says:

    I think Curia’s website may need updating:

    “Yes. During the recent showing of NZ Idol, we had more and more people unavailable to take part as it got closer to the final. We are pleased it is over and congratulate Ben on winning.”

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  16. dave (988 comments) says:

    When looking at the breakdown of the survey I couldn’t help noticing that 45% thought the FSA was fair to Māori. Only 33% think the FSA was unfair to Māori , Yet more 62% think the Government should not legislate to remove the right to go to court. Some people have a strange idea of “fairness”

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  17. trout (944 comments) says:

    Whaleoil over at Gotcha has got worthwhile comment on this issue – especially in respect of what may be being demanded by Maori in the way of settlement of the foreshoe debacle.
    The main problem with the surveys of public opinion is a lack of definition of ‘foreshore & seabed'; in most peoples minds they think of a strip of beach where they will swim and sunbath. The promise of free access to beaches is a red herring and diversionary.
    In fact the land and seabed area that Maori want control over goes way beyond beaches and may even extend out to the continental shelf. Which means that commercial development; (ports, marinas, harbour bridges), aquaculture, and mineral exploration will all be subject to Iwi veto and if allowed by Maori will certainly be subject to license fees.

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  18. Viking2 (11,561 comments) says:

    The major problem with the opinion derived from the polling is that few people have a good understanding of the issue and so any ticks or crosses are based on emotion that has been driven by fear and or facts true or false. Nowhere have I seen (and I could be corrected on this), an attempt to set out clearly and without that emotion the situation in a way that most people could understand.
    It is a complex subject and while politicians seem to think they know it all, there are untold examples of that truth.
    When someone sets out the whole story, facts and emotions and in a way that all of us can read it so we all have a consistent knowledgeable view or at least those who are to be polled have that information anything is just hogwash uninformed opinions.
    Surely the first question is; do you have a good understanding of this subject?

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  19. bchapman (649 comments) says:

    V2
    What you say will certainly be true once the FSA goes and things move out of control of the Executive branch back to the Judicial branch. I guess it depends who you trust the most (or least) the Judiciary or the parliament!

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  20. bulbul (18 comments) says:

    “The unbroken Queens Chain is more myth than reality”

    So what ? That is not an excuse to carry on in the same way. The Queens chain is a wonderful concept and deserves to be pursued to its fullest extent until we have 100% of the coast available to every Kiwi. There may be the odd completely inaccessible bit. And that includes not giving in to customary rights clap trap.

    I detest and abhor countries which allow prime foreshore to be fenced off and protected by armed guards, native thugs and hoons.

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  21. kowtow (8,755 comments) says:

    Give iwi customary rights to the oil,gas and gold out there, then let a court confirm that arrangement.Then watch the rest of NZ quietly accept that…….could happen they got the fish.

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  22. PaulL (6,043 comments) says:

    Better idea kowtow. Give Maori rights to the mineral wealth under crown land (particularly conservation land). Watch the Green party squirm as their desire for greenliness conflicts with their desire for brownliness. And once the Iwi start to exploit that wealth, watch NZ get rich.

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  23. grumpyoldhori (2,362 comments) says:

    bulbul Now the red necks on here would be happy to see beaches and foreshore not in pakeha private hands to be declared a Queen’s chain, but beaches and foreshore in private pakeha hands tsk tsk, what about pakeha property rights ?

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  24. Manolo (14,044 comments) says:

    Grumpy, with that impeccable train of thought you must be a genius. Are you related to King Tut or Pythagoras, by chance?

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  25. minto57 (197 comments) says:

    grumpy define a red neck, is it someone that thinks because his race he has special rights and any one that opposes that view must be one.
    The sea bead and foreshore should be held in common all of it.

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  26. tvb (4,501 comments) says:

    This Act is a total dogs breakfast in which in the middle of the public reaction to the Orwera speech Helen Clark panicked. She asked Wilson what the decision meant – Wilson could not predict what the Court would do so Michael Cullen was dispatched to draft up an Act that tried to “legislate” what customary rights were. But the fundamental flaw in the legislation was that it legislated away legal rights to go to Court and test what a property right is if there ever was one. It lead to the formation of the Maori Party and opened up the eyes of Maori that there is an alternative to the Labour way on what is best for Maori. The Labour Party was exposed and being quite racist in their low expectations for Maori. When one looks over the 70 years of Maori representation in Parliament it has been through the Labour Party who in the main selected deadbeats and gave them token jobs such as Maori Affairs and a front bench and once they gave Maori the Lands portfolio. But in the main the Labour Party tried to keep Maori expectations low, pay them welfare and tell Maori to shut up and vote for them. But along can the Maori Party, the Treaty settlements which gave Maori an economic base OUTSIDE welfare. It is significant the Labour Party has been very tardy about those settlements. The Labour vision for Maori is to have Maori totally dependent on the State and to p[ay obeisance to the Labour Party. So far as Europeans are concerned they want the same but that remains a work in progress. Working for Families is a big state extension into the living standards for white NZERS. ULtimately the Labour Party wants the public and maori to be frightened of moving away. To vote Labour because they are frightened. But the people do not want that. Hence we have the anger of Labour politicians as this dreadful game starts to unravel.

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  27. Luc Hansen (4,573 comments) says:

    tvb, just too hard to read. Paragraph breaks are good. Aside from that, good post.

    Personally, I’ve just had enough of us Europeans ripping off, not to mention oppressing and killing, all and sundry while amassing massive wealth.

    Just give to Maori their entitlement under the modern interpretation of Customary Law. Work through the consequences. If modern law is too parsimonious, lift the offer.

    Let’s go for justice, just for a change.

    It reminds me of a letter I had published in the Herald around the time of the Orewa Brashgrenade: the Herald had displayed a front page headline “What Maori Want!” I showed it to my Maori mate at work and he remarked that it was wrong. He said, it should have read: “What Maori Want BACK!”

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  28. minto57 (197 comments) says:

    Really do get sick of all the racist putdowns that are bandied about to justify what is usually a racist point of point of view.

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  29. tvb (4,501 comments) says:

    Yes my points are these.
    1 The Labour Party over the last 70 years has dominated Maori politically. They gave them welfare, and token representation in Cabinet. They selected in the main deadbeats who were never going to hold significant jobs. AND the Labour Party had no intention of giving Maori a significant job in GOvernment. Look back when have they go one – never Finance/Leadership/Justice/the Social Service portfolios? only Winston Peters in Foreign Affairs.
    2 The Seabed and Foreshore Act was an attempt to Legislate on what customary rights and remove the right to tests those in the Courts.
    3 The Maori Party is a different approach. They do not support the “socialisation” of Maori through WEFARE for living standards and politically to be totally dominated by the Labour Party who have NEVER allowed Maori to take a significant role in Government. This is still evolving but one thing is clear the Labour Party are going to fight this aggressively and “drive” the Maori Party out of Parliament. We will see about that.

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  30. Kevin (1,122 comments) says:

    Its not a complicated issue. The foreshore and seabed belongs to all New Zelanders.

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