The Foreshore and Seabed review

The architect of the Foreshore and Seabed legislation, Michael Cullen, has made Labour's submission to the Foreshore and Seabed review. Labour has done an about-turn on the legislation it so dramatically passed in 2004.

Now, Labour wants to restore the ability to apply for an award of customary title - in the first instance to the Maori Land Court but with a right of appeal to the High Court. But Labour does not believe customary title should be able to be converted into freehold title, which would enable its sale. So why didn't Labour do that instead of passing the Foreshore and Seabed legislation in such a panic? Michael Cullen's submission said that further thought needs to be given to just what powers the possession of customary title would involve in conjunction with other legislation like the Resource Management Act. He submitted that the agreement with Ngati Porou would be a good starting point in any discussions. This agreement recognises and protects customary rights by granting the iwi effective co-management of the coast, complete with consultation rights on fisheries and conservation decisions and a veto on resource consents which would interfere with customary activities.

Had Labour taken that position when they drafted the Foreshore and Seabed legislation, who knows what our political arrangements may have been now. And if the Maori Party didn't have an agreement with National, the review may not even have taken place and we would never have got a formal admission by Labour that it botched its own law.

The Maori Party doesn't just want a review: It wants a repeal.

[Just as background, as a result of a long dispute between a coalition of South Island iwi and the Marlborough District Council over customary fishing and aquaculture rights, the Court was asked to rule whether there was any legal barrier to land below the high water mark - the foreshore and seabed - being declared Maori customary land. It found that there was not. Whether a particular piece of foreshore or seabed was in fact Maori customary land was a question of fact, to be determined by the Maori Land Court - but the Court unequivocally had the power to make such determinations.

The Labour Government did not want Maori to be permitted to win customary title through the courts, so it passed legislation to permanently and retrospectively vest ownership of the foreshore and seabed in the crown.The legislation was justified by two arguments: the need to preserve public access to what was generally assumed to be a communal space, and the need to prevent uncertainty to business.

The legislation removed the jurisdiction of the Maori Land Court to hear claims for ownership of the foreshore and seabed - the sand that gets wet by the tide - allowing exploration of customary usage rights, but short of the award of actual customary title, or ownership. It created a system for recognising and managing those customary rights, through comprehensive negotiation.]

[Hat Tip No Right Turn]