The Foreshore & Seabed

Matthew Hooton’s Exceltium 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, Curia, 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 polls 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.