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Thursday, 2 July 2009

The Foreshore and Seabed Repeal: The Inconvenience of Due Process

That the state is not above the law but also subject to it is surely one of the foundational concepts of any just and free society. This notion has found its place in the writings of many influential philosophers, jurists and theologians, it can be found in the constitutions and bills of rights of most nations. Citizens trust their governments to wield their power accordingly and when our governments do not, when they abuse that trust, even if they wield their power against some small group whose cause we are not that into, we need to care about it and hold them to account.

In 2004 the New Zealand Labour Government passed the Foreshore and Seabed Act. At the time both Matt and I were absolutely opposed to its passage but we felt like lone voices in the wilderness in our own community and that saddened us. Christians will happily protest laws that affront issues like marriage, sex, drugs, alcohol and parenting but on issues like freedom and civil liberty our voice is all often too quiet.

Part of this is that we are not as educated a culture as we once were, we don’t know our history or properly understand our theology, we don’t value our freedom or understand how it works or why it is important to defend it even when we don’t feel like it is us under attack but we need to.

A lot of people don’t even understand Foreshore and Seabed issue; they think it was about who owns the beaches and that the law was necessary to protect our beaches, our kiwi way of life. In Any Requests? Anonymous asked, “Why should the government potentially allow access to the beach denied to all New Zealanders?” The Ministerial Review Panel found that this concern was not limited to our anonymous commenter:

Three key issues emerge from our review of submissions to the Select Committee which considered the Bill in 2004: public ownership, access and navigation, and protection of Māori customary interests in the foreshore and seabed. In our view, these issues remain at the very heart of ongoing concerns about the legislation.[1] [Emphasis added]

In all the submissions the amount that focused of the real problem were so negligible the panel didn’t list them. The majority missed the fact that this Act was passed to prevent a group of New Zealand citizens from taking a case to court, instead they wrote submissions about how that would affect them. The Act was and remains, a blatant breach of due process.

Nevertheless, the passage of this Act had widespread support. Although the National party (then in opposition) voted against it, they ran a campaign promising to keep the beaches for all New Zealanders. Within the media and amongst society, debate about the Act was focused on the merits of the court case; totally missing the point that legislative denial of due process is wrong regardless of the merits of the case being brought.

At this point a brief history is necessary due to the widespread misunderstanding about the case itself. In June 2003 the Court of Appeal handed down its decision in Attorney-General v Ngāti Apa [2003] 3 NZLR 643. Public interest in this case was triggered by the reaction of the government to its decision and the way the media reported its significance.[2]

Eight Maori tribes claimed that the foreshore (the land between the high and low-water marks) and the seabed (the land below the low-water mark) of the Marlborough Sounds in the South Island of New Zealand, was "Maori customary land" (a Maori jurisprudence concept which is not the same concept as our western notion of fee simple ownership.) The tribes were not sure if the Maori Land Court, which is the court set up to hear historical Maori land claims against the government, had the jurisdiction to hear their case. There was dispute as to the effect of statutes regarding land and Common Law confusion over land ownership where that land is covered by water. The tribes went to the High Court to ask if they could take the case to the Maori Land Court and the case worked its way up to the Court of Appeal.[3]

In summary, the Court ruled that:

  • the Crown was wrong to contend that certain statutes affecting the foreshore and seabed had had the effect of extinguishing such Māori customary title as might exist; and
  • the Māori Land Court has jurisdiction, under Te Ture Whenua Māori/Māori Land Act 1993, to determine whether any part of the foreshore and seabed is still Māori customary land.

While the decision gave rise to uncertainty regarding the “ownership” status of the foreshore and seabed, it also confirmed that this could be tested in the Māori Land Court. However, rather than let that process run its course, the government decided to legislate. The Act vested in the Crown title to all foreshore and seabed land not already in private ownership. It also made some provision for Māori customary interests to be recognised in limited circumstances.[4]

This case was about whether or not the Maori Land Court had the jurisdiction to hear a case. The case was not a ruling on whether the foreshore and seabed belonged to Maori or the Crown. This was a key issue that the media, the politicians and the public missed at the time.

The ex-dean of the University of Waikato's Law School, Margaret Wilson, was the Attorney-General at the time the Court of Appeal was deliberating. She had advised the government that there was no way the Court of Appeal would rule in favour of the appellants, she was not alone in that view, the majority in the legal profession thought that. She was wrong.

When the government realised the error they realised there was a risk that ownership and access to the beach in the Marlborough Sounds area might be able to be handed to Ngati Apa, if the Maori Land Court heard the case and ruled that way. The political fallout from this was not something they wanted. New Zealanders love the beach. We are a small island with a lot of beautiful coastline; we all have summer memories that involve our coastline. The backlash against the government could be disastrous, the opposition could have a field-day, they may lose the next election... So they played on that fear and also on the impatience many have towards historical Maori land claims, the 'gravy-train' mentality, and they rammed through legislation that prevented the case ever being heard.

The problem is that the right to due process trumps the right of the general public to enjoy the beach and the right for a government to not have negative media. If, in fact, Ngati Apa did have a legitimate claim to ownership then as much as we love the beach, the beach ain’t ours.

Usually at this point in a discussion on the issue I am asked if I am Maori to which I throw my hands up. No, I am not Maori. It is just that I get the fact that just because I like something and enjoy it, it doesn’t make it mine and it doesn’t mean I can keep it when it is brought to my attention that it might belong to someone else. We can apply this to other spheres of life, we need to be willing to apply it even to big issues like this one.

Another point to keep in mind is that Ngati Apa never got their day in court. It is not clear that they would have won. Many legal scholars felt they did not have a case – as we keep trying to point out in the smacking debate the mere fact someone can raise a legal issue does not mean they will always succeed - but they should have been allowed to try.

“Public ownership, access and navigation and protection of Maori customary interests in the foreshore and seabed” are all implications of what might have been at stake had the case proceeded. Due process for Ngati Apa and the other tribes was taken by the passage of this Act.

Fast forward to 2008. A new National government was elected, a confidence and supply agreement was drawn up between National and Maori Party (a party formed in protest to the Foreshore and Seabed Act). Policy concessions included National offering a review of the Foreshore and Seabed Act. At the time we were very pleased by this fact but less so by the detail and blogged to that effect; “It is a shame to see that National has not framed the issue in terms of the affront to due process and instead is talking about all New Zealander's being able to access the beach, as if that is somehow more important than human rights.”

Our fears were not unfounded, in addition to the claims made by some commentators that the specially created Ministerial Review Panel was stacked and directed as to which outcome to arrive at, the terms of reference were utterly wrong:

a) What were the nature and extent of the mana whenua and public interests in the coastal marine area prior to Attorney-General v Ngāti Apa [2003] 3 NZLR 643

b) What options were available to the government to respond to the Court of Appeal decision in Attorney-General v Ngāti Apa [2003] 3 NZLR 643

c) Whether the Foreshore and Seabed Act 2004 effectively recognises and provides for customary or aboriginal title and public interests (including Māori, local government and business) in the coastal marine area and maintains and allows for the enhancement of mana whenua

d) If the Panel has reservations that the Foreshore and Seabed Act does not provide for the above, outline options on what could be the most workable and efficient methods by which both customary and public interests in the coastal marine area could be recognised and provided for; and in particular, how processes of recognising and providing for such interests could be streamlined

The Panel will also need to consider how these processes will integrate with legislation that regulates the coastal marine area.

Effectively the panel is acting in the place of the Waitangi Tribunal, the appropriate, already existing, independant investigative tribunal that examines the evidence and makes recommendations. The government is expected by everyone to and has already indicated it probably will follow the recommendations being made by the Ministerial Review Panel as it would be 'too costly for it to go back to court.'

Basically the government looks set to settle this case, out of court, on our behalf, when it is not clear that the government are guilty and not that long ago they denied a case existed on the part of Ngati Apa and many legal scholars agreed with them. Historical Maori land ownership claims are very difficult to prove. There were no deeds or titles issued in pre-european New Zealand and records consist of tribal stories, songs, carvings and so on. To succeed in an historical claim, even if a tribe could establish which part of land their ancestors had used and no other tribe was prepared to offer a counter claim to the land, the land in question has to have been in continual use by the tribe making the claim from at least 1840 through to the present day (unless it was unjustly dispossessed). Not only is it very possible Ngati Apa may not have succeeded, there would not be a huge risk of floodgates because each tribe would need to be able to establish this long chain of use and ownership of the foreshore and seabed in the area their ancestors historically lived.

Regardless of which party is in power, the New Zealand government seems to be happy to have the land of its citizens taken without due process as long as it furthers their political popularity. The former government was willing to suspend due process of one group of citizens and unilaterally declare that the land in question belonged to a second group of citizens. The current government is willing to unilaterally declare that the land in question belongs to the first group of citizens and not the second group and again it seems they will not going to allow a court to hear the evidence.

The Ministerial Review Panel said sending the case back to court would be "protracted, laborious, and expensive" and the politicians appear to agree. It's funny how selectively that card has been played of late, it wasn't too expensive to create a special Ministerial Review Panel that duplicated the services of the existing Waitangi Tribunal and the Maori Land Court but apparently now everyone is concerned with cost. Due process is too expensive apparently; tell that to the authors of the Magna Carta who wrote:
"No man of what state or condition he be, shall be put out of his lands or tenements nor taken, nor disinherited, nor put to death, without he be brought to answer by due process of law."
Due process is a concept enshrined in constitutions around the world - the Fifth Amendment of the US Constitution states, "No person shall be ... deprived of life, liberty, or property, without due process of law ...." and in New Zealand: the Treaty of Waitangi, the Bill of Rights Act 1990 and the body of Common Law arising from the Magna Carta itself gives us the same legal rights.

The government does not have the right to settle land disputes, where that land is held in trust for its citizens, without due process being observed. It was wrong when Labour did it and it will be wrong if National proceeds to do it.

Send the case back to court. Sell the state owned television company if you need to fund it - a society where I can get 'free' entertainment but it is too expensive to uphold justice is a society with its priorities backwards.

[1] Summary Report of the Ministerial Review Panel on the Foreshore and Seabed Act 2004, 4.
[2] Ibid.
[3] Attorney-General v Ngāti Apa [2003] 3 NZLR 643.
[4] Ibid.


  1. I believe the Act party wanted it to go to court at the time. I wouldn't be surprised if they still want it to go to court.

  2. The ACT Party, from memory, were the only party apart from the Maori Party who got what was wrong with the Act in the first place so I wouldn't be surprised. Of course I understand why the Maori Party want this settled, they believe in Ngati Apa's case, but still as our elected representatives they should put that aside and observe due process.

    What annoys me about this issue is that if I wrote a post about homosexuality or abortion or creationism v evolution I'd get a lot more hits, a lot more comments and a lot more backlinks. That's not to knock the importance of some aspects of those issues but it is an endightment on our country's committment to freedom and civil liberty.

    Recent blog post: The Foreshore and Seabed Repeal: The Inconvenience of Due Process

  3. Thorough post, well done.

    Imagine where we might be now as a nation if those in the traditional media had even attempted to address these issues rather than just stir the pot for the sake of sensationalism. More shame on them.

  4. Shame indded though let's not forget who issued the press releases and gave the comments that led them to stir the pot that way.

    Recent blog post: The Foreshore and Seabed Repeal: The Inconvenience of Due Process

  5. "the right to due process trumps the right of the general public to enjoy the beach" doesn't. Legally maybe,but not morally.

  6. What annoys me about this issue is that if I wrote a post about homosexuality or abortion or creationism v evolution I'd get a lot more hits, a lot more comments and a lot more backlinks. That's not to knock the importance of some aspects of those issues but it is an endightment on our country's committment to freedom and civil liberty.

    It is because people are unaware of their liberties and value them too poorly.

    It is bread and circuses my dear, bread and circuses.

    Recent blog post: Why doesn't the Bible address X?

  7. Good post, but I think you meant Margaret Wilson was Attorney-General in 2004 - she was AG from 1999-2005, then Speaker 2005-2008, when she retired form Parliament and returned to Waikato Law school:

  8. I disagree, it is wrong to steal, it is wrong to deny somone's civil liberties, no matter how much you like the thing in question; it is wrong both morally and legally. The moral wrong is prior, as it would be morally wrong to steal, to deny human rights, even if it were legal to do these things.

    Recent blog post: Live Blogging from the Mount

  9. Thanks for that, I don't know what I was thinking writing "Governor General!"

    Recent blog post: Fisking Margaret Mayman: The Flawed Moral Theology on the Smacking Referendum

  10. I guess it depends on whether you think that humans can "own" things like beaches/mountains/rivers etc.

    I personally think this is a ridiculous concept - that because of the luck of one's birth they and not someone else has the "right" to walk where their feet carry them - whereas other are "trespassing"

    So yes - legally you are right... but morally wrong. The ironic thing is that the English have fought long and hard for centuries to try to get access to land "owned" by the landed gentry, and yet in New Zealand we are creating another group of exclusive land owners.

    And if you think that the average bro' is going to get anything out of it you are deluded.

  11. Guest,  You write I guess it depends on whether you think that humans can "own" things like beaches/mountains/rivers etc.  
    I personally think this is a ridiculous concept - that because of the luck of one's birth they and not someone else has the "right" to walk where their feet carry them - whereas other are "trespassing" 

    This proves to much: owning a house or car depends on luck of ones birth as well. I could have been born in a tribal village with no houses or cars. So if we follow your reasoning through, any one who wants to use your shower, drive your car or occupy your house can just walk in, presumably the government can simply take it give it whoever they like ( leaving you homeless) and you should not be allowed to go to court. That is what I find absurd.

    The ironic thing is that the English have fought long and hard for centuries to try to get access to land "owned" by the landed gentry, and yet in New Zealand we are creating another group of exclusive land owners. 

    All privately owned land is "exclusively owned" thats part of what privately owned means. Simply allowing Maori to argue that a piece of land is theirs is no more problematic than allowing two pakehas who have a boundary disagreement to argue in court.

  12. Don't turn it into a rce issue Matt.  The point I made above was tht NO-ONE should be able to own beaches/mountains/rivers/ of course it is the same as two pakehas having a dispute...but I think nopakeha should be able to stop people walking over the surfaceof God's Creation either.

    And why be SO OBSESSED with taking things to their logical conclusion.  I may believe something about owning mountains and the air - but not believe the same about owning a toothbrush say.Its not so black and white -all or nothing as you think.

  13. I skip read this post because suddenly I have this question that I've had for a while but never really found answer to.

    What is the basis of ownership of land? Did we all kill each other in wars centuries ago, then 'owned' lands from those days, and then slowly people just stop killing each other and instead buy and sell?

    Or some group found empty lands and from there on the group own the land?

    What is the basis for jurisdiction, immigration law, land ownership ... ?

  14. Those are very weighty questions indeed and there are various theories and answers to them in the literature and the answers vary depending on which culture or area of land you ask.

    Generally speaking in broad terms that cross most theories ownership of new or previously undiscovered land arose from occupation. As a state or authority came into charge then frequently that authority assumed ownership and everyone else then obtained their slice from them.

    As for what happened between discovery of unoccupied land and feudal ownership you are probably about right. Certainly in Maori Land Law, Take (claims or titles) to land are usually listed as being obtained by:

    whenua raupatu - claim by conquest
    take tupuna - claim by ancestry
    taunaha whenua - claim by discovery
    takahi whenua - claim by travelling over land regularly
    take tuku - gifted land

    But even then, Maori concept of title was not like ours. In addition to their concept of ownership not looking much our concept of exclusive ownership and enjoyment limited only by <span>t</span><span>axation</span>, eminent domain, police power, escheat or whatever encumbrances or conditions might be registered against the title, in Maori law you could lose your title if you did not maintain ahi kaa, if you failed to "keep your home fires burning." If you left the land for a long time or you stopped using your path over someone else's land to go to your fishing ground or you stopped planting your crops in a particular area then your claim ended because you were no longer in relationship or connected to the land.

    In Maori times there was no state so things like jurisdiction and immigration were set by each tribe. Most cultures had some methods of dealing with or determining these things.

    Obviously jurisdiction and state control of land in our context arose from conquest of England and then conquest of New Zealand. Those making the conquests got to set them once they had subdued the population and gained control - there is a heap of literature on how and when a state gains legitimacy - Kelsen's "Grundnorm", HLA Hart's "Rule of Recognition" are two theories that spring to mind as starting points if you want to read further.


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