The New Zealand foreshore and seabed controversy is a debate about ownership of the country's foreshore and seabed, with many Māori groups claiming that Māori have a rightful claim to title (indigenous title). These claims are based around historical possession and the Treaty of Waitangi. The Foreshore and Seabed Act 2004 deemed the title to be held by the Crown. Some sections of the act came into force on 17 January 2005. It was repealed and replaced by the Marine and Coastal Area (Takutai Moana) Act 2011.
Origins
Ngati Apa v Attorney-General
In 1997, an application was made to the Māori Land Court requesting, amongst other matters, that "the foreshore and seabed of the Marlborough Sounds, extending the limits of New Zealand's territorial sea" be defined as Māori customary land under the Te Ture Whenua Māori Act 1993.Attorney-General v Ngati Apa 3 NZLR 643 at 95 The Māori Land Court determined that it could consider the issue, but was overruled by the High Court. On 19 June 2003, New Zealand's Court of Appeal ruled in Ngati Apa v Attorney-General, amongst other matters, that:
"The definition of 'land' in Te Ture Whenua Maori Act 1993 did not necessarily exclude foreshore and seabed";Attorney-General v Ngati Apa 3 NZLR 643 at 2 "The title vested in the Crown was radical title which was not inconsistent with native title";Attorney-General v Ngati Apa 3 NZLR 643 at 3 Various Acts had influence over but did not extinguish property rights; The Maori Land Court had jurisdiction to determine "an investigation of the title to the land ... under s 132 and an order determining the relative interests of the owners of the land".Attorney-General v Ngati Apa 3 NZLR 643 at 96
In Re the Ninety-Mile Beach The Court of Appeal overturned a line of precedent dating back to the 1877 decision in Wi Parata v Bishop of Wellington, and affirmed by the New Zealand Court of Appeal in the 1963 In Re the Ninety-Mile Beach decision. These early decisions held that because of circumstances unique to New Zealand, Māori land ties were so weak that they could be extinguished through such indirect routes as unrelated phrases in legislation or through the Māori Land Court's investigation of dry land adjoining the foreshore.
In its ruling, the Court of Appeal found that "native property rights are not to be extinguished by a side wind.... The need for 'clear and plain' extinguishment is well established and is not met in this case. In the Ninety-Mile Beach case, the Court did not recognise that principle of interpretation".Attorney-General v Ngati Apa 3 NZLR 643 at 154 The ruling was foreshadowed by academic work during the late 1980s and 1990s, which argued that the Ninety Mile Beach case was wrongly decided.(see, in particular, Paul McHugh "Aboriginal title in New Zealand courts" (1984), 2 University of Canterbury Law Review 235–265 and "The legal status of Māori fishing rights in tidal water" (1984), 14 Victoria University of Wellington Law Review 247-7 and Boast, "In Re Ninety Mile Beach Revisited: The Native Land Court and the Foreshore in New Zealand Legal History" (1993) 23 VUWLR 145)
Initial responses The ruling granted only the right to pursue establishing an interest. Experts such as Paul McHugh of Cambridge University stated that this was unlikely to result in full exclusive ownership, but these assurances were not strong enough to counter the perception that the door was now open for Māori to claim title to the entire coastline of New Zealand through the Māori Land Court. The prospect of a successful claim was reported as having created considerable hostility in many sectors of society as New Zealand has a strong tradition of public access to beaches and waterways and this was perceived as being under threat. The prime minister, Helen Clark of the Labour Party, announced that the government would legislate to ensure public ownership of the foreshore and seabed.
At the same time, however, the government was strongly attacked by the opposition National Party, led by Don Brash. In sharp contrast to Te Ope Mana a Tai, the National Party claimed that the government's proposals were too favourable towards Māori. While the government's plan did indeed vest ownership in the state, they also incorporated provision for Māori to be consulted over matters relating to the foreshore and seabed. The National Party claimed that Māori were to be given too much control, and that the government was giving rights to Māori over and above those possessed by other New Zealanders.
Once the Government's policy framework was released, the Waitangi Tribunal held an urgent inquiry into the government policy. The hearing took place over six days in late January 2004, and a report was issued four weeks later. The tribunal issued a report that was highly critical of the Crown's approach.Waitangi Tribunal, "Report on the Crown's Foreshore and Seabed Policy" WAI 1071 (2004). The Government response was equally sharp and critical, accusing the tribunal of 'implicitly' rejecting the principle of parliamentary sovereignty. The Attorney-General, taking a more middle ground, conceded that the policy was prima facie discriminatory, but concluded that this infringement was "demonstrably justifiable in a free and democratic society" under section 5 of the New Zealand Bill of Rights Act 1990.Attorney-General, "Report on the Foreshore and Seabed Bill" (2004) at The Human Rights Commission took another view, arguing that the legislation was discriminatory and not justified by section 5.
2004 debate
Although under attack from both sides, the government chose to press forward with its legislation, asserting that what it called its "middle way" was the only means of satisfactorily resolving the controversy. Criticism of the government, both from Māori and from opposition parties, continued to intensify, and the government began to lose ground in opinion polls.
On 27 January 2004, Brash delivered a speech at Orewa that was highly critical of the government's policy towards Māori. Brash said that the government was showing strong favouritism to Māori, both in the foreshore and seabed debate and in many other areas of government policy. Brash's speech was condemned both by the government and by many Māori groups, but met with widespread approval from many other sectors of New Zealand society. This support was boosted by the successful 'iwi/Kiwi' billboard campaign which followed Brash's speech. These billboards framed the foreshore debate as the Labour Party's attempt to restrict public access to beaches, while the National Party would protect this aspect of the 'Kiwi way of life'. The speech resulted in a surge in support for the National Party. From 28% in the polls a month before the speech, the party jumped to 45% two weeks after it: ten points ahead of the Labour Party.
The government was also facing serious internal debate over its proposed legislation. Many of the party's Māori MPs were deeply unhappy with the government's plans, and raised the possibility of breaking ranks to oppose the legislation in Parliament. This left the government unsure of whether it had a sufficient number of votes to pass its legislation through Parliament. In theory, the government had a narrow majority willing to support its proposed bill, with Labour, the Progressives, and United Future all prepared to vote in favour. If two of Labour's Māori MPs were to vote against the bill, however, it would fail. Moreover, any attempt to make the bill more favourable to these MPs would risk losing the support of United Future.
On 8 April 2004, it was announced that the centrist-nationalist New Zealand First party would give its support to the legislation. New Zealand First's price for this support was that ownership of the seabed and foreshore would be vested solely in the Crown, ending the concept of "public domain" (vesting ownership in the public at large rather than in the state) that United Future had promoted. United Future withdrew its support for the legislation, but New Zealand First provided sufficient votes to make this irrelevant. It is believed that Helen Clark preferred United Future's "public domain", and this was acknowledged by United Future leader Peter Dunne, but United Future could not provide enough votes to guarantee the bill's passage, forcing Labour to seek support elsewhere.
One of the strongest critics of the bill within the Labour Party was Tariana Turia, a junior minister. Turia indicated on a number of occasions that she might vote against the government's bill, but for a considerable time refused to give a final decision. It was made clear that voting against a government bill was "incompatible" with serving as a minister, and that doing so would result in Turia's dismissal from that role. Turia was encouraged to either abstain or simply be absent when the vote was taken. On 30 April, however, Turia announced that she would vote against the legislation, and would resign (effective 17 May 2004) from the Labour Party to contest a by-election in her electorate. She was dismissed from her ministerial post by the Prime Minister the same day. Another Labour MP, Nanaia Mahuta, eventually decided that she would also vote against the bill, but chose not to leave the Labour Party. Mahuta had no ministerial post to be dismissed from.
On 5 May 2004, a hīkoi (a long walk or march – in this case, a protest march) arrived in Wellington. It had begun in Northland thirteen days earlier, picking up supporters as they drove to the capital. The hīkoi, which some estimated to contain fifteen thousand people by the time it reached Parliament, strongly opposed the government's plans, and was highly supportive of Turia's decision.
Turia and her allies, believing that the time was right for an independent Māori political vehicle, established a new Māori Party. Many of Turia's supporters, such as Mana Motuhake leader Willie Jackson and Māori academic Pita Sharples, claimed that Māori who formerly supported Labour would flock to the new party en masse. On the other hand, other commentators pointed to a poor track record for Māori parties in the past, and said that it would be difficult to unite diverse Māori opinion into a single group.
On 18 November 2004, Tim Selwyn put an axe through a window of the electorate office of Helen Clark, an act he described as a protest against Helen Clark's handling of the issue. On 18 July 2006, he was sentenced to two months imprisonment for the axe attack.
Foreshore and Seabed Act 2004
On 18 November 2004, the Labour–Progressive government passed the Foreshore and Seabed Act 2004, which declared that the land in question was owned by the Crown. Māori could, however, apply for "guardianship" of certain areas. The act was highly contentious.