Why it happened: The Foreshore and Seabed Act and subsequent ministerial review

Well I’ve still to finish reading the ministerial review of the Foreshore and Seabed Act 2004. But what is lost on many is how the Act and the subsequent review occurred and its relevance to Labour getting turfed out of office in 2008.

Firstly, the Foreshore and Seabed Act is not just about the Treaty of Waitangi, although Treaty principles and Articles were breached. It is more about the doctrine of Aboriginal Title.In a nutshell, this is simply is that indigenous peoples have some form of property rights, which are not affected by a transfer or acquisition of sovereignty. Such property rights are recognised by Article II of the Treaty of Waitangi. So when people say that the Foreshore and Seabed Act breached Article II of the Treaty (it breached Article III as well), that is reflected in the doctrine of Aboriginal Title.

Coastal marine areas were subject to this Aboriginal or customary title unless it could clearly be shown that it had been extinguished. Prior to the Ngāti Apa case that eventually led to the Foreshore and Seabed Act, Government policy was that Māori customary title had indeed been extinguished, whereas Māori asserted their ownership from first contact

The whole litigation started back in the mid 1990’s. The Marlborough District Council refused to give Ngāti Apa a mussel-farming licence to farm in their traditional area. The iwi eventually appealed through the courts, which ruled against a contention that statutes affecting the foreshore and seabed extinguished Māori customary title.

The Te Ture Whenua Maori Act 1993 gave the Māori Land Court jurisdiction to determine whether the foreshore and seabed was Māori customary land. The Court of Appeal in Ngati Apa said it could determine title, which led the Government to claim that Maori could take over the beaches to the exclusion of everyone else. It decided that allowing public access to the beaches would be better even if the Treaty is breached in the process. In reality, the worst case scenario is that a small number of iwi may have successfully tested their claim to customary title in court. However, rather than let that process run its course [and it is most unlikely that the Maori Land Court would have declared large areas of the foreshore be turned into freehold land, anyway] the government kneejerked, deciding to legislate to nationalise property rights to public areas of the foreshore and seabed just four days after the court decision.It intended to deny Maori the right to explore their common-law property rights in court – supposedly indissoluable rights - while allowing other New Zealanders to secure private ownership.

The Waitangi Tribunal found the Crown, in choosing to legislate, seriously breached the principles of the Treaty by failing to respect tino rangatiratanga, partnership, active protection.

Instead of amending the Te Ture Whenua Māori Act and the Resource Management Act, the Government incorporated other changes to those Acts into the Foreshore and Seabed legislation - despite select committee disagreement. The Act ignored the doctrine of Aboriginal Title as it failed to properly balance customary and public interests. It denied Māori options to pursue due legal process. It was discriminatory against Maori. Note: Don Brash was not the National Party leader when Labour decided to legislate.

The Maori Party was formed in the backlash of this Act. The ministerial review was part of the agreement between the Maori Party and National. The issue in the review was essentially whether the government unjustly expropriated Māori customary interests in the foreshore and seabed by vesting it public areas in the Crown, and by imposing restrictions on recognition of customary interest. It found that the government did just that and recommended the Act be repealed.

We have the Maori seats to thank for this review as without them, the Maori Party would never have been formed and the ministerial review would most likely not have occurred. We can also thank the Marlborough District Council for a National Government, as without its decision, subsequent events leading to the formation and rise of the Maori Party would also not have occurred,and we'd probably have a Labour-led Government with Labour holding most of the Maori seats.