Speaker by Various Artists

Untangling the Foreshore

by Jim Evans

I listen to the news on the foreshore issue each night and groan. For each night brings a fresh misunderstanding of the legal position. The issue would be hard to resolve even if its background was clearly understood, but without that there is just muddle, and we get increasingly into a tangle.

The political commentators have been poor - and we ought to expect better - but the politicians have been worse. Right up to the present I have not heard Helen Clarke say anything that suggests she has read the foreshore case (Attorney-General v Ngati Apa, [2003] 3 NZLR 643) or had good advice on it or tried to understand it. Just last week I heard her say that the whole problem resulted from a legal loophole in a statute. Not true. The night of the Hikoi she said that she flatly denied that Maori have any territorial rights in the foreshore. Well that is wrong too, and shows no understanding of the legal position.

Don Brash has been, if anything, worse, by exploiting Pakeha fears and sentiment. His comments suggest that he also has made little effort to understand the relevant law. On the night of the Hikoi he accused the Government of falsely suggesting that Maori might have some legal rights in the foreshore and the territorial sea. Well, the Court of Appeal has held that they may do so. Could he not take the trouble to find out why they said that?

These are, after all, two highly intelligent people, who have access to legal advisers. We expect leadership from them. What they have given us is not good enough.

Is the law then too complex to bear understanding by anyone other than lawyers? No. But it does require a little patience and the willingness to suspend emotion until the facts are in. I shall try here to set out the essential elements of the law and its historical background in a form accessible to non-lawyers. I will then make some comments on the position we are in.

Let us proceed in historical order. When English law was introduced into New Zealand in 1840 it came containing rules about how it would apply in such a territory - a territory judged to have no developed system of law. Three are central to understanding the present case:

1 If the sovereignty of the Queen was established (either by treaty, or, for that matter, by imposition) the existing inhabitants of the territory would automatically become British subjects, subject to English law and entitled to its rights. (I speak of "British subjects" here for that was the terminology then used to describe subjects of the United Kingdom of England, Scotland and Ireland; but I speak of "English law" because it was that particular system - as distinct from Scottish or Irish law - that was introduced by colonization.)

2 The lands and other properties possessed by the native inhabitants would be protected.

3 The native inhabitants could not sell land to anyone other than the Crown.

This ought to sound familiar. For these are, in effect, the rules set out in the English version of the Treaty of Waitangi. On the British side, the treaty was not intended to create new law that would apply in the new territory, but rather to state the rights that would automatically apply under English law if Maori accepted the Queen's sovereignty and the country then became a colony. The Ngati Apa decision was not based on the Treaty, but on this existing law. It was law established by cases rather than statutes, and thus part of what is called the "common law" within the system that the colonists introduced. The terms of the English version of the Treaty make quite clear how this particular part of the common law was understood by the British Colonial Office in 1838 and 1839 when it formed a plan for the colonization of New Zealand.

The Maori version of the Treaty (the version most commonly signed) is in somewhat different terms, but, although this point is important in some contexts, it makes no difference to the present issue. For, as I have said, the decision in the Ngati Apa case was not based on the Treaty, but on the common law that its English version expressed.

A further rule needs to be mentioned. English law came into force in New Zealand only "insofar as applicable to the circumstances of the colony". That was the original common law rule on the reception of English law in a colony such as New Zealand, but in 1858 it was put into a statute and in this form it remains the current law.

Early on, colonial courts conscientiously observed the common law that was expressed in the Treaty. In 1847, Governor Grey set up a test case to get a firm ruling on the law relating to native title. A bench of two judges held that such title was a legal title, recognizable in the courts, but that only the Crown could extinguish it - in other words it couldn't be transferred to a non-Maori. It is absolutely plain that this decision was not based on the Treaty, but on established case-law.

The position changed dramatically in 1877. In a case called Wi Parata v the Bishop of Wellington a bench of two judges held that the rights of natives to their land were not something that could be recognised in the courts. A single sentence from the judgment indicates both the tone and the effect of the judgment: ".. in the case of primitive barbarians, the supreme executive Government must acquit itself, as best it may, of its obligation to respect native proprietary rights, and of necessity must be the sole arbiter of its own justice".

Put more precisely, the judges reduced the native title from a legal right to a mere moral right that imposed an obligation on the conscience of the Crown (meaning here the executive). The significance of this shows up starkly in a case a little later in which a judge held that Maori owners could not rely on their native title in the courts even to obtain an order to evict a trespasser from their land.

The two judges in the Wi Parata case did not put forward any sound legal argument for their view. They cite earlier cases that quite clearly deal with legal rights and misinterpret them as dealing with a moral right only. So far as there is a discernable ground for the decision it is the blunt assertion that there was no system of customary rights existing among Maori that could form the basis for the recognition of legal rights in the courts. But such customary rights had been recognized by the Crown in negotiations since 1840 and by the legislature since at least 1862. So for the judges to assert that no such customary system of rights existed was extraordinary They took no evidence on the point, merely asserting their own opinion.

Despite these defects, the decision in the Wi Parata case had a huge influence on subsequent legal thinking within New Zealand. It blocked recognition that a doctrine of native title existed as part of the common law.

From 1862, various New Zealand statutes established a court, eventually called the Maori Land Court, to settle Maori rights in land as the prelude to the grant of an English title. (Often, in practice, this was a preparation for a sale to a non-Maori.) At a later time, lawyers influenced by the Wi Parata view of the law sought to understand the reference to native rights contained in these statutes. Recognizing that the Treaty (like any other treaty) did not create any legal rights in New Zealand unless it was implemented by statute - a point that is right as far as it goes - they came to the conclusion that these rights were created as legal rights by the statutes to give effect to the moral obligation the Crown had assumed under the Treaty. A corollary was that, strictly, Maori had no legal rights in land other than those created by a statute.

When the New Zealand Court of Appeal was asked to rule on the status of the foreshore in 1963, in a case called In re the Ninety-mile Beach, it took this view of the law for granted. Maori rights in the foreshore could exist, it held, only if they had been created by statute. It then went on to hold that a right of a sort in land had been conferred on Maori by those statutes that established the Maori Land Court. The scope of the right was that the Crown ensure that an English title not be issued until Maori rights in the land had been properly extinguished.

However, the Court went on to note that when English titles had been granted to land adjacent to the sea they had almost always extended only to high-water mark. It held that such grants extinguished any title beyond that. The reason was that an order of the Maori Land Court and the Governor's subsequent grant of a title based on that order were intended to settle all Maori claims in the area. So the duty of the Crown to protect Maori rights that the statute had created was then fully satisfied. The judges did not contemplate that a legal right in the foreshore might exist at common law independently of the statutes.

Were it not for one fact, the Wi Parata view of the common law might have justified an argument that, right or wrong, it established a line of precedents within New Zealand that should be observed by later courts. That critical fact is that the Wi Parata view was never accepted by the then highest court in the New Zealand hierarchy - the Privy Council. In several decisions on New Zealand appeals the Privy Council criticized this view when it had influenced lower courts in New Zealand. Regrettably, because the legal issues in these cases were complex, the nub of the Privy Council's criticism was never understood in New Zealand. The Privy Council also took a different view of native title in decisions on appeals from other countries.

During the 1980's, legal scholars studied the legal history afresh and identified the shift of thought that occurred in Wi Parata. They criticized that case as inconsistent with basic principles of justice, inconsistent with earlier case-law and inconsistent with later decisions of the Privy Council. From 1986, the Wi Parata view began to be rejected by New Zealand courts. The Court of Appeal firmly rejected it in 1994. However, its application to the foreshore did not arise until the Ngati Apa case last year.

Nevertheless, from the 1980's it was plain to those who understood the history that the Ninety-mile Beach decision was suspect. Legal scholars have been issuing warnings to this effect for some considerable time. So there is no reason why the Government should have been caught unawares by the decision in Ngati Apa. In Ngati Apa the Court of Appeal rejected the Wi Parataview of the common law and held that the Ninety-mile Beach decision was wrong.

In the Ngati Apa case, the Crown not only disputed the view of the common law that I have set out above, it also relied on various statutes that appeared to confer title in the foreshore or the adjacent sea on the Crown. In some cases these arguments failed because of the detailed text of the statutes, but one uniform theme was of over-riding importance. None of these statutes did anything more than confer on the Crown the sort of fundamental title - referred to in the case as "radical title" - that is the basis of all rights to land in a system based on English law. In an English system even normal freehold title - the sort of title that ordinary home-owners have - exists only as a restriction on this fundamental title of the Crown. Of course, if a freehold title has been granted the fundamental title of the Crown leaves it few rights; but it can, nevertheless, exercise some residual rights in time of war.

The law is that when the Crown acquires its fundamental title in a new territory in which native titles apply the Crown holds its fundamental title subject to the limitation of the native titles. A good analogy is an ordinary citizen acquiring freehold title in a property knowing it is already subject to a registered long-term lease: from the moment it is acquired the property is then held subject to the lease. None of the statutes relied on by the Crown showed any intention to take away the native title as a limitation of this sort on the fundamental title of the Crown.

It may be objected that the reason they did not is that those who framed these statutes did not believe that any native title existed in the foreshore or adjacent sea. That is no doubt true, as comments by long-standing former members of Parliament, such as Michael Bassett, have illustrated. But it is trite legal learning that if those who draft statutes make a mistake about the existing state of the law that does not make the law into what it was wrongly thought to be. Parliament can make any law it chooses, but it must do so by passing an Act: it cannot do so merely by displaying a misunderstanding of the existing law.

In Ngati Apa the Court of Appeal held that a native title might exist in the foreshore or the seabed if no Crown grant or statutory grant has ever been made of a title covering those areas. In fact, some grants have been made, many of them to local authorities. In other cases, standard Land Transfer Act titles that extend to fixed survey points that were once on dry land now extend into the sea, because the coast has eroded. The effect of the decision is that in other situations a claim to native title is currently possible.

What, then, must be proved to establish such a title? This is not entirely clear, but a rough statement is: enjoyment in 1840 of effective control held as of right under customary understandings. Nothing in the doctrine of native title requires that the holders of such a title must have maintained a continuous presence since that time, although Maori notions of territorial right seem themselves to have contained such an element. In any event, there is no good reason why Maori who subsequently failed to maintain a presence because the law failed to support their rights should lose them as a consequence.

If native titles could be proved, what would they include? Obviously, this would depend on what was effectively controlled in 1840. It would also depend on what Maori could fairly be taken to have sold at the time that land adjacent to the coast was sold to non-Maori. Apart from this, there would be some legal limitations. One that would certainly apply is that Maori could not sell their rights to anyone other than the Crown. For in 1840, that was an established part of the rules regarding native title.

Two other limitations are likely, although not certain. These are that any rights established would be subject to public rights of access for navigation and fishing. The ground for such a limitation is that the fundamental title of the Crown at common law was subject to these rights in the public long before 1840. In England the law was, and still is, that the Crown cannot, without statutory authority, grant to private persons any rights in the foreshore or seabed that are free from these rights in the public. On the principle that the Crown could not give what it did not have, it could not have allowed these rights to Maori in 1840 as a limitation on its fundamental title. The High Court of Australia has recently ruled to this effect in a case involving an aboriginal claim to areas off the coast of the Northern territory. In its report on the foreshore issue in this country the Waitangi Tribunal also recognized the force of this argument.

An argument to the contrary is possible. It would be that the rules establishing these limitations were not applicable to the circumstances of the colony in 1840, these circumstances including the presence of a people that made extensive territorial claims to the foreshore and areas of the adjacent sea. After all, the Crown had just made a solemn promise to protect the lands and fisheries of the Maori people - and no limitation was expressed that these lands and fisheries must be inland. With regard to navigation I think it is unlikely this argument would succeed. Public rights of navigation were an obvious need of the new colony. In any event, public use of the sea was an established rule of international law with which Maori would eventually have needed to come to terms, regardless of colonization.

The right to control fishing is more tricky. Commercial fishing has now been settled by the fishing settlement of 1992, but recreational fishing by non-Maori is still a potential issue. If the system of law introduced by the colonists in 1840 did not adequately protect rights in the territorial sea, because it allowed a public right of fishing that would be a breach of the Treaty. However, it is not clear that the test "insofar as applicable to the circumstances of the colony" could be used to give protection against such a breach. The presence of a people that made substantial claims to areas of the sea is the strongest point on this issue.

Assuming that all of these limitations hold, what is left as the content of native title? In principle, everything else that might be part of a territorial right - but subject, of course, to proof of actual control as of right. Among the remaining rights those likely to be most contentious are recreational uses of the foreshore, the control of other uses of the sea than for navigation or fishing (eg marine farming), and the use of resources on or under the seabed. Among the first, some beaches will have been acquired in circumstances that showed an intention to surrender rights in the foreshore: those sold to the New Zealand Company in Wellington are a likely case. Among the last, rights to petroleum have already gone, for they were nationalized for the country as a whole - both land and sea - in the 1930's.

If we want to have a basis for thinking about how the issue ought to be resolved, in addition to understanding this state of the law we need to take account of the quite extraordinary history that we are confronting. Maori, it turns out, had legal rights from 1840 that were denied for a long period in our history. But, to turn the other side of this coin, for a long period most people have not known that. Important parts of the culture of our present society have developed on the premise that the foreshore and the seabed are publicly owned and available for everyone to use. Much development that has contributed to making the foreshore and the adjacent sea widely usable, and used, has been created in this belief. Not only the ancient culture of our indigenous people, but also the current culture of our present people, is on the line in this issue.

Had it not been for the affront to Maori in the way matters have developed politically since the decision in Ngati Apa, I do not think the significance of this would be denied. Indeed, I sense that a strengthening of the country's resolve to preserve effective public access to the coast and the sea is a necessary part of the solution that has to be found.

Against this background, how adequate is the Government's Bill? Over the coming weeks those making submissions to Parliament will have to read it. That will be healthy, because whether or not its solution is ideal, it is at least a genuine attempt to find an acceptable compromise.

Broadly, the Bill does six things.

1 It places ownership of the foreshore and seabed in the Crown, except for bits that are already the subject of a freehold title in someone else. The Crown cannot transfer this ownership to anyone else without statutory authority.

2 It removes all relevant common law rights in the public and creates new statutory rights in their place. The first among these is a new right of access to the foreshore and seabed. The second is a new statutory right of navigation. Common law rights to fishing are simply removed altogether, leaving fishing rights to be governed solely by the Fisheries Act 1996, regulations made under it, and the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992.

3 It removes common law rights of native title.

4 It allows the Maori Land Court to make orders protecting usages of Maori that have been traditionally enjoyed down to the present. These are then to be entered in a public register. None of these orders can cut across the public right of access created by the legislation without an order agreed by two Ministers, one of whom must be the Minister of Conservation. Similar protection is available for sacred sites. Additionally, instead of going to the Maori Land Court, Maori may negotiate with the Minister of Maori Affairs and the Minister in charge of Treaty Negotiations to create an agreement that recognises traditional usages. If an agreement is reached, these usages will be placed on the register.

5 It allows the High Court to make an order that, but for the Act, a group would have held territorial customary rights to a particular area of the foreshore or seabed, unless the territorial right can be adequately protected by a registered usage right. When the High Court makes such an order it must refer it to the Attorney-General and the Minister of Maori Affairs who then must enter into discussions with the group. The purpose of such discussions is "to consider the nature and extent of any redress that the Crown may give".

6 It amends the Resource Management Act to protect registered usage rights.

The bit of this that seems most obviously questionable is that there is no automatic right to compensation for the loss of rights that might have formed part of a native title. Normally, a public taking of property rights would carry that. The Ministers are directed to negotiate, and the purpose of the negotiation is clearly stated, but there is no statement that full current value is to be paid.

The reason that full compensation should normally be paid for any public taking of property rights is that otherwise the burden of providing a public good falls disproportionately on the owners of the right rather than being shared by the community as a whole. Perhaps it can be argued that this principle does not fully apply to the foreshore and the adjacent seabed as often much of the current value will have been created by the public as a whole operating under a misunderstanding of the legal position. However, that argument won't always apply, so the fairness of this system will very much depend on how Ministers exercise their power.

Pakeha need also to understand that it is not just money value that is at stake for Maori. Part of what is lost if there is a public taking is the capacity to exercise that measure of control that native title would have carried - not control for its own sake, but because of the caring that can go with it. I do not see how this can be fully protected, for in the end there are some rights that ought to be firmly secured to the public. But at least the significance of this loss needs to be understood.

One gap in the Bill, as it seems to me, is the lack of an ability for Maori to secure in kind any of the property rights that might have been part of a native title, rather than to have their loss compensated by money. The right to create marine farms is an obvious case in point. At present the Bill does not allow for the grant of such rights, but relatively minor change could create it as an option for the Ministers who must negotiate about redress.

The Bill goes for clarity and precision. In the longer term we may come to think that was the right course. In the shorter term the Bill needs to be better explained: particularly to Maori, who have been treated badly in the public discussions so far. But it also needs to be explained to Pakeha, for if it is not, they are likely not to understand why at least this much must be conceded, and, as a consequence, to bear a mistaken sense of grievance.

This paper is an attempt to explain the legal background to the Foreshore decision and the current Bill before Parliament that has resulted from it in a form accessible to non-lawyers. It reflects the author's personal opinions only, not those of Auckland University or the Auckland Law School.