The Foreshore & Seabed proposals

March 31st, 2010 at 2:53 pm by David Farrar

The 65 page full consultation document is here.

The key aspects are:

  • repeal the Foreshore & Seabed Act 2004
  • no one to “own” the foreshore and seabed, placing it in the public domain
  • guaranteed public access to all, subject to certain limitations in discrete areas (such as health and safety restrictions around ports, or restrictions around urupa/burial grounds)
  • recognition of customary rights
  • protection of existing use rights to the end of their term
  • restore the right to go to Court to establish customary title, based on common law principles
  • customary title will not be able to be made into freehold title
  • no change to current private ownership of any parts of the foreshore & seabed
  • two tiers of rights can be sought – customary title and customary rights

I think this is a significant improvement over the current law. It passes the two critical tests of guaranteeing public access, and of restoring the right to go to court to pursue common law and other rights.

I also like the idea of the foreshore and seabed being in public domain, with no ownership at all. That means it can’t be sold without special legislation. It also means that the 30% in private ownership won’t increase.

I’m all for private ownership of most things – but not the foreshore.

A key issue unresolved is whether any claims should go to the High Court or Maori Land Court or both.

This issue is hugely complex and has done very well to get this proposal out there. Maoridom does not speak with a single voice, so doubtless there will be varying degrees of support for it, but I hope most will see it as an improvement over the status quo.

I also hope most non-Maori will agree that it is a bad precedent to have the Government remove the right of any group of New Zealanders to test their legal rights in courts, and that repeal of the FSA will be a good thing.

This is stage three of a four part consultation process.

The first stage was people submitting their views to the expert panel.

The second stage was people submitting their views on the recommendations of the panel.

This third stage allows people to submit their views on the proposals in the paper.

And after this consultation, a draft law will be drawn up, and the fourth stage will allow people to submit on the proposed law.

The process of genuine consultation can be almost as important as the substance of the issue. It was partly the then Government’s high handed nature with the FSA and EFA that galvanised opposition to them. The EFA was drawn up in secret and the FSA started life by having Clark and Wilson declare they would legislate no matter what.

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27 Responses to “The Foreshore & Seabed proposals”

  1. democracymum (616 comments) says:

    Great gains for Maori under national foreshore plan – Audrey Young’s excellent piece in the Herald

    http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10635584

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  2. Bevan (3,232 comments) says:

    Great gains for Maori under national foreshore plan – Audrey Young’s excellent piece in the Herald

    Audrey is off the mark there, but she is a journalist, so she needs to sensationalise to get someone to read her articles.

    Great gains my arse, just reversing the abissmal Foreshore & Seabed Act. I haven’t read the entire thing, but from my skimming it looks like Maori rights are the same as mine, and so it should be.

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  3. democracymum (616 comments) says:

    “The most important change between National and Labour’s laws is that Labour set the test for the award of customary title extremely high and National has lowered it.

    Only a handful of iwi would have qualified to be awarded customary title under Labour because they had to have had continuous title of land adjoining the foreshore and seabed.

    National has lowered the hurdle substantially by requiring the relevant iwi to prove that it has had a continuous relationship with the relevant foreshore and seabed area since before 1840. For most iwi that should not be hard.

    Under National’s proposal, the iwi gains a lot of legal rights it doesn’t have already.

    One of them would be the right of veto over consents for coastal permits given by either the regional council, or even the Ministers of Conservation or the Environment on matter that have been sent to them.”

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  4. Jeff83 (747 comments) says:

    Seems a good compromise to me.

    The devil as always will be in the detail.

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  5. alex Masterley (1,538 comments) says:

    I was more than happy with the position before the Labor party enacted the foreshore and seabed legislation that is to say that people could be given the opportunity to claim customary title rights, whatever to areas of the foreshore if they could demonstrate unbroken control or stewardship of an area of the foreshore or seabed as it was closely aligned to the doctrine of prescriptive title found in general land law.
    As an example i doubt that anyone would be able to claim title or rights to mission bay in auckland but an isolated beach on the east cape with access only through whanau or hapu land would be a differnt matter.
    If we are returning to that general position and it seems that the foreshore plan does that my feeling is that all will be happy or realisticaly less unhappy with things than under the current legislation.

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  6. Russell Brown (379 comments) says:

    Good work by Finlayson, as you’d expect. I really hope this brings this dispute to a fair conclusion.

    The irony, of course, is that we could have had at least the public domain component but for Winston bloody Peters who rejected it and held the votes to get away with it.

    the FSA started life by having Clark and Wilson declare they would legislate no matter what.

    And, shortly afterwards, National was demanding that they legislate right over the top of the courts. If you’re going to bag Labour, it seems a bit rich to ignore your own party’s unhelpful role in the matter.

    [DPF: Oh National’s stance was equally unprincipled I agree. And I even helped run one of the campaigns – Finlaysons once referred to me as “one of the guilty ones!”. In slight defence once the Govt has said it is going to legislate (just three days after the decision) it does have the effect of pushing the Opposition to much the same place. ACT deserve credit for keeping a principled position throughout]

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  7. wreck1080 (4,002 comments) says:

    Maoris aren’t going to like this – nothing short of ownership will satisfy them.

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  8. Inventory2 (9,390 comments) says:

    @ Russell Brown – On one thing are the left and the right agreed Russell

    Winston bloody Peters

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  9. Graeme Edgeler (2,972 comments) says:

    ACT deserve credit for keeping a principled position throughout

    We have differing recollections. In the early days after the decision, ACT’s views changed quite a bit.

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  10. burt (7,445 comments) says:

    So is this new proposal a bit like the old Queens Chain ?

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  11. jaba (2,147 comments) says:

    I’m with Jeff83 here .. will be interesting a few years down the track.
    It seems that the Nats have dodged a bullet because I saw this as the issue to all but destroy the Nat Govt because this subject is sooooo divisive.

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  12. ernesto (257 comments) says:

    The “guarantee” of public access, is actually “reasonable” public access. Much will turn on the differences between Maori and Pakeha views of what is reasonable. Neither Sharples, Turia or Harawira deny that they view it as reasonable for some hapu to require koha for access in some locations. Access to beaches will not be the the same as it has always been, but this may not be a bad thing.

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  13. Adolf Fiinkensein (2,705 comments) says:

    Seems to me that if it “reasonable for some hapu to require koha for access in some locations” then it will be reasonable also for some Pakeha land owners to charge a toll to those who want to cross private land to gain access to a beach.

    Were I such an owner, I would do so in order to pay someone to make sure all the gates were closed after vehicles went through.

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  14. tvb (4,563 comments) says:

    This is basically why the Maori Party are supporting the Government. BUT the Maori Party so far has avoided the hard yards of being in Government in other words they have cherry picked their way through the Government’s programme and only done what is popular. The exception is the carbon trading scheme and there the Government had to enter into some pretty shabby stuff to get them on board. I would NOT pass this legislation in this parliament and hold it over into the next Parliament. I suspect John Key progress it in this parliament as an act of good faith but the Maori Party will then shit on him in the next Parliament.

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  15. Adolf Fiinkensein (2,705 comments) says:

    tvb, you demonstrate limited intelligence. The foreskins and seaweed business might have been the trigger for the formation of the Maori Party but are you so stupid that you think they have not got more important fish to fry, medium and long term?

    I don’t quite know how you can make out they have avoided ‘the hard yards of being in government.’ They are in government, dear boy, in case you hadn’t noticed. They are having to compromise and do deals with National and ACT every day. Have you actually read anything Peter Sharples has said recently about being in government?

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  16. tvb (4,563 comments) says:

    Adolf what have they supported the Government on, that is a bit hard??? The latest is welfare reform when the two Ministers said they will reluctantly support the Government, but the rest scarpered. I am sorry but I see them as slippery as an eel. Taking what they can get and laughing all the way to the bank.

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  17. philu (12,989 comments) says:

    “..[DPF: Oh National’s stance was equally unprincipled I agree. And I even helped run one of the campaigns -”

    gee..!..that kinda tidily sums up yr life/work/’principles’..eh..?

    and all in yr own words..eh..?

    it’s a good little ‘earner’ tho’..eh..?

    phil(whooar.co.nz)

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  18. jaba (2,147 comments) says:

    eh?

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  19. big bruv (14,225 comments) says:

    tvb

    You are closer to the truth than Adolf, sadly Adolf has become nothing more than a cheerleader for Neville Key and the rest of the National Socialist party.

    Adolf see’s politics as his ‘team’ v the other ‘team’, do not expect reasoned or rational comments from him when it comes to his beloved Neville Key or the National Socialist party.

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  20. Bevan (3,232 comments) says:

    it’s a good little ‘earner’ tho’..eh..?

    What would you know about earning?

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  21. Adolf Fiinkensein (2,705 comments) says:

    BB don’t let any facts get in the way of another rant.

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  22. big bruv (14,225 comments) says:

    Not a rant Adolf, it is a statement of fact.

    You are an obviously smart guy, why you so slavishly support the gutless Nat’s is bloody confusing.

    Yes, Neville has done some things right (not many, but he has done a few) and when he does get it right one is correct to applaud his actions, but even you would have to admit (late at night and in the privacy of your own home) that by and large Neville Key is no more than a centre left soft cock who refuses to make the hard decisions and is prepared to keep borrowing billions to stay in power.

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  23. Caleb (480 comments) says:

    Does this mean that every piece of foreshore and seabed will eventually be held under a title by iwi?

    Will every private venture envolving foreshore and seabed have to pay iwi and council?

    Everything is about money…

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  24. Adolf Fiinkensein (2,705 comments) says:

    Oh, I see BB. So you’d like to see Labour resurrect Winston and get up in time for a win in 2001. Is that your end game? Does BB stand for brainless bastard?

    Please tell me exactly what you and your army of three or four would describe as the hard decisions the Key administration has refused to make? Then you might explain how you imagine the Left wing PR machine would have dealt with them and more importantly how the mendacious media might have distorted the truth. When you’ve finished that part of the story, what about having a go at explaining how you would explain to the electorate the news that you are out on your arse, floundering around in opposition while the jubilant and dumbstruck Left proceeds to claim credit for a recovering economy?

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  25. dad4justice (6,596 comments) says:

    “Does BB stand for brainless bastard?”

    Nearly right Adolf , braindead bastard is a better description of the bb mistake.

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  26. RKBee (1,344 comments) says:

    Russell Brown @3:23 pm
    “Good work by Finlayson, as you’d expect. I really hope this brings this dispute to a fair conclusion.”

    Well if it doesn’t.. it won’t hold out much hope for Finlayson settling the settlement process with Iwi up and down the country.

    Bevan @3:10 pm
    Great gains for Maori under national foreshore plan – Audrey Young’s excellent piece in the Herald
    “Audrey is off the mark there, but she is a journalist, so she needs to sensationalise to get someone to read her articles.”

    I agree..
    Her Brother Jonathan Young National MP for New Plymouth does a better job with his peice in the North Taranaki Midweek ” Nation heads off to gym”.. He says National is taking NZ to the gym.. the heart rate is up.. it’s a bit hot and sweety.. it hurts a bit here and there.. some are getting puffed and a few are getting grumpy.. but after we’ve been there a while and were fitter and healther.. we will be thinking why did we wait so long. his response to a letter writer.. John Key and the Government taking us to the cleaners.

    Young being John I wonder if it’s not his sister writing his speachers.. but again he is a preacher.

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  27. big bruv (14,225 comments) says:

    Adolf

    “Please tell me exactly what you and your army of three or four would describe as the hard decisions the Key administration has refused to make? Then you might explain how you imagine the Left wing PR machine would have dealt with them and more importantly how the mendacious media might have distorted the truth. When you’ve finished that part of the story, what about having a go at explaining how you would explain to the electorate the news that you are out on your arse, floundering around in opposition while the jubilant and dumbstruck Left proceeds to claim credit for a recovering economy?”

    In that one paragraph you have confirmed what I have said about you for some time, you are nothing but a brainless cheerleader.

    Tell me how Neville Key differs from Labour?

    It is because of idiots like you we have such an insipid and gutless government.

    I could not give a flying fuck who claims the credit for a recovering economy, it does not bloody well matter to me which ‘team’ does the business, what does matter is that we find a government who is brave enough to get the job done.

    You on the other hand, do not care just as long as your team are the one calling the shots.

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