The Foreshore & Seabed proposals

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 Chris Finlayson 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.