Myths of the foreshore and seabed

The new foreshore and seabed bill (now the Marine and Coastal Area (Takutai Moana) Bill) is being drafted now, and will be released soon. It seemed a good time to look at the history of discussions about the foreshore and seabed in New Zealand since 1835. This essay asks how we got to the Foreshore and Seabed Act 2004. (Apology: I wrote this essay for school, and haven’t had the time to make it more readable. I hope it’s useful anyway)

Introduction

I love the ocean. My parents used to take me to Mission Bay in Auckland when I was little, and when we moved to Whangarei we went to lots of beaches. My Dad's Aunty Eileen and Uncle Rob lived in Tutukaka, and growing up I spent weeks at their house, swimming or going out on Uncle Rob's fishing boat. I wasn't a great swimmer, but I was totally at home in the ocean. The beach, that place where Tangaroa and Papatūānuku are constantly re-negotiating their relationship, is part of who I am. I can't stay away from it.

Of course this isn't unique. New Zealand is a coastal land, and the foreshore and seabed has always been valuable to Māori, both economically (e.g. Durie: 111-113) and, like all land, as part of our whakapapa. At some point, it became important to non-Māori as well. So much so, that the beach is now part of our national identity and, regardless of the differing histories of different areas, many of us believe all of it belongs to all New Zealanders.

But how did this come to be? The assumption that the beach can't belong to anyone, that it belongs to all of us, is as much a constructed myth as any other. How is it that in 2010 we are debating whether preserving the myth of common ownership is more important than facing the reality of stealing more land from tangata whenua?

Treaties

The place to start looking for answers might be the early legal relationships between tangata whenua and the Crown. Each of the three early treaties signed by tangata whenua is relevant to the foreshore and seabed.

The 1835 He Wakaputanga o te Rangatiratanga o Nu Tirene was signed by around 50 northern rangatira (to as far south as Waikato and Hawke’s Bay). It is unambiguous in stating that all authority over the territories (the word in the Māoi text is 'wenua') of the signatories is held exclusively by the rangatira, and no other legislative or governing authority can function unless by permission and under the authority of Te Whakaminenga o Ngā Hapū o Nu Tirene (He Whakaputanga o te Rangatiratanga o Nu Tirene, 1835: Article 2). While it uses the word wenua, and does not explicitly mention the foreshore or seabed, it seems likely that this declaration was intended to cover all the territory used by the signatories, whether under water or not.

The 1840 Te Tiriti o Waitangi was signed by around 500 people on behalf of their hapū. It is unambiguous in preserving and protecting the absolute authority of hapū and rangatira over their lands, villages and all that they value; it also allows for the sale of land to the Crown (Te Tiriti o Waitangi, 1840: Ko te tuarua). Again, the foreshore and seabed is not explicitly mentioned, and the word wenua is used. But if the foreshore and seabed is not included as wenua, it is certainly included as taonga.

Finally, the 1840 Treaty of Waitangi was signed by around 30 people on behalf of their hapū. It gives absolute authority to the Queen, but

“confirms and guarantees to the Chiefs and Tribes of New Zealand… the full exclusive and undisturbed possession of their Lands and Estates Forests Fisheries and other properties which they may collectively or individually possess so long as it is their wish and desire to retain the same in their possession” (The Treaty of Waitangi, 1840: Article 2)

In this treaty, even though sovereignty is ceded to the Crown, possession of the foreshore and seabed is guaranteed to rangatira and hapū. If the foreshore and seabed is not considered part of the lands and estates of a hapū, it is certainly part of the fisheries and other properties in collective ownership.

From a brief look at these three documents, it appears that the authors and signatories understood that the foreshore and seabed belonged to tangata whenua, unless at some point they chose to sell it. The idea that the beach belongs to all New Zealanders must therefore originate later. I will look at early land sales to see if they show the start of this belief.

Crown Deeds

Following the 1840 treaties, tangata whenua could only sell land to the Crown. By 1862, two-thirds of the dry land area of New Zealand was covered by a deed of Crown purchase (Boast (b): 72). These early deeds should indicate whether tangata whenua and the Crown considered the foreshore and seabed to be the same as other lands under the authority of hapū, or if the idea was beginning to emerge that these areas are commonly held land.

Early Crown deeds often referred to the foreshore and seabed, either extinguishing or acknowledging Māori rights (Ministerial Review Panel: 103). This indicates that Crown purchase agents recognised Māori proprietary interests (ownership) in those areas. Māori also understood that they retained rangatiratanga of an area unless they specifically relinquished it, whether dry land or foreshore and seabed. For example, Āpihai Te Kawau at the Ōrākei Māori Parliament in 1879: It was only the land that I gave over to the Pākehās. The sea I never gave, and therefore the sea belongs to me. (Te Kawau, cited in Ministerial Review Panel: 23)

The early Crown deeds indicate that at this period both Crown and Māori considered areas of foreshore and seabed to be under the exclusive authority of tangata whenua, unless sold to the Crown. The concept of universal Crown or common ownership must come later than 1862.

Gold and the Native Land Court

In the late 1860s, the discovery of gold meant that some areas of foreshore suddenly became extremely valuable to Europeans. It turns out that this is where the myth of public ownership has its roots. The logic of greed quickly overrode any legal, moral or historical arguments.

Presumably based on these legal, moral and historical arguments, section 9 of the Gold Fields Act Amendment Act 1868 re-affirmed 'native title' over gold field land below the high water mark (Williams: 43). So if the Crown wanted to claim such land, it needed anther parliamentary act. In 1869, Parliament enacted the Shortland Beach Act, which imposed Crown ownership over the seashore adjacent to the Thames goldfield, and extinguished tangata whenua ownership (Williams: 43).

Of course, tangata whenua had a relationship with that land—this could not be ignored just because the Crown wanted to get rich from it. Tangata whenua took their case for title to the Native Land Court (Williams: 43-44).

The Native Land Court was set up in 1864 to make land available for European settlement (Williams: 11); it ended Crown pre-emption, allowing customary title to be converted to freehold title (Ministerial Review Panel: 103). It sometimes worked closely with the Crown, and was always under political pressure from them (and interference where necessary) to ensure this outcome (Williams: 33-50). But tangata whenua had reason to believe that the Native Land Court would be able to judge fairly. In 1870, Chief Justice Fenton stated:

“I can find no reason or law which renders it incompetent for a Maori to have ownership over land covered by the sea at highwater… I am of the opinion that the question of ownership of any portion of the foreshore by a Maori depends simply on a question of fact." (Hauraki Native Land Court minute book 4, 23 July 1870, p 202, cited in Williams: 43)

These words show that at 1870, the Native Land Court believed that the foreshore was not special, and should be treated like any other land.

In the 1870 Kauaeranga case, tangata whenua argued that at 1840 they held exclusive ownership and use of an area of foreshore, and that this property right was guaranteed under the Treaty of Waitangi. The Crown argued that the Treaty of Waitangi was irrelevant—it had gained sovereignty by settlement, and the ownership of the foreshore was an incident of Crown sovereignty (Mikaere, 2010).

The tangata whenua case was successful. Fenton found that they had proven their exclusive ownership at 1840, and that, in exchange for sovereignty, the Crown was bound by the promises of the Treaty of Waitangi. For this, Mikaere has called the case the single greatest success Māori have had in the courts (Mikaere, 2010).

This does not mean that the applicants got what they came for. Fenton awarded them fishing rights, but not ownership of the foreshore, because of 'the great public interests involved'. His judgement speaks of:

“the evil consequences which might ensue from judicially declaring that the soil of the foreshore of the colony will be vested absolutely in the natives, if they can prove certain acts of ownership, especially when I consider how readily they may prove such, and how impossible it is to contradict them if they only agree among themselves.” (Hauraki Native Land Court minute book 4, 23 July 1870, p 245 cited in Williams: 43)

In other words, if the court gave title to the foreshore and seabed whenever Māori could prove ownership, where would that leave the Crown? According to the courts in 1870, Māori legal title had to be subject to public interest, and public interest was getting more Māori land.

Still, even this small victory for tangata whenua was too great for the Crown to endure. It was upset with the outcome because the fishing rights that were awarded to the applicants interfered with Crown mining interests. In response, the Crown restricted the jurisdiction of the Native Land Court in Auckland Province (which included Thames and Coromandel) to exclude foreshore title investigations. In other areas, public opinion had the same effect: judges had become reluctant to issue foreshore titles anyhow, in view of the non-Maori reaction, even where the Maori customary title was clearly established (Waitangi Tribunal, cited in Williams: 44).

This early attempt by Māori to use the Treaty of Waitangi and the Native Land Court had mixed results. The case was successful in using European law to argue in fact that tangata whenua were the owners of that area of foreshore, that they should be given title, and that the Treaty of Waitangi guaranteed this. But the case was unsuccessful in that tangata whenua did not actually get ownership. They had jumped through every legal hoop that had been required of them, and found that European law was not blind. Even when the legal case was clear, judgments favoured Europeans; judges were swayed by their own prejudices, and by pressure from the public and government. And where the Crown did not like a decision, it could trump it with a proclamation.

This, then, is the origin of the present situation. The language of the Kauaeranga judgment is eerily similar to that of the Crown now. So much so that it feels like New Zealand is still in that same colonial land-grabbing mindset. Can it be true that nothing has happened since such a blatantly racist judgment was made 140 years ago?

"What I tell you three times is true"

(Carroll, L, "The Hunting of the Snark")
As Māori have continued to push for their rangatiratanga to be acknowledged, the Crown has used two strategies to try to strengthen its claim to the foreshore and seabed based on prerogative right: repetition and avoidance.

The Harbour Act 1875 prevented sale or alienation of the foreshore without specific legislation. Rather than directly challenge the Native Land Court's ability to decide Māori claims, this formalise[d] a growing assumption that the Crown owned the harbours and foreshore (Durie: 86). The Native Lands Act 1909 confused Māori claims further: requiring that customary resources could only be protected in law if first converted to Crown title (Durie: 86). These laws implied that the Crown had somehow gained sovereignty over these areas, encouraging the belief that Māori ownership had somehow been extinguished. The Crown's strategy appears to rely on the Bellman's Rule (from The Hunting of the Snark), where simply repeating a statement three times makes it true.

At the same time, the Crown avoided a thorough legal test of its ownership of the foreshore and seabed by resorting to arguments over whether the courts had jurisdiction to decide. In 1935, in response to ongoing challenges against the Crown's ownership of the foreshore by prerogative right, the Crown Solicitor wrote: the claim of the Crown is weak. The Department [of Lands and Survey] would prefer that the matter, if possible, be removed from the jurisdiction of the Native Land Court (Crown Solicitor, cited in Bennion, Birdling and Paton: 1). This suggests that the Crown intended to protect its assumption of title, not by proving it, but by taking away any opportunity to test it.

In 1957, tangata whenua asked the Māori Land Court for an investigation of title of the foreshore of Ninety Mile Beach (Durie: 86), which it did, dividing the beach between two iwi (Ministerial Review Panel: 104). The Crown appealed to the Supreme Court and the Court of Appeal, questioning whether the Māori Land Court could issue such titles. The Supreme Court found that the Māori Land Court did not have jurisdiction to hear the case, because the Harbours Act 1950 required that any grant of the foreshore had to be by special Act (Durie: 86). In other words, in order to prove ownership of the foreshore, tangata whenua would first need the Crown to write legislation saying that the Crown did not have ownership. It is hard to interpret this as anything other than the Supreme Court protecting the Crown.

The Court of Appeal gave a confusing ruling that had the same result. It rejected the Crown's argument of prerogative right, but found that Māori customary title to the entire foreshore had effectively been extinguished by investigations of title in the Māori Land Court (Boast (b), p 106)—even though many areas had never been investigated by that court. In fact, there had been no previous investigation of title by the Māori Land Court in the case they were actually deciding. Perhaps like Fenton in 1870, the Court of Appeal was worried about the precedent if they allowed customary title wherever it could be proven. Perhaps the court thought that it could not simply accept the tangata whenua argument but refuse to award title (as Fenton did), so instead it devised an alternative basis for Crown ownership (Boast (b): 106). The ruling meant that Māori title needed to come from statute: the court had effectively ceded jurisdiction to the Crown to decide on cases against the Crown.

Our highest court had created a test of ownership that would successfully protect the Crown for a further 40 years. Following this decision, the Crown continued with its strategy of repetition, behaving as if Māori title to the foreshore and seabed had been extinguished, and thereby re-enforcing the myth of public ownership. Eventually, the courts would refuse to help the Crown. It would need to fall back on the strength of its mythmaking to convince New Zealanders that our right to go to the beach is more important than the property rights of tangata whenua.

Arguing jurisdiction

In the 1980s and 1990s, tangata whenua of Te Tau Ihu o te Waka found the regulations around marine farming made it impossible for them to set up marine farms. In 1997, they asked the Māori Land Court to recognise the foreshore and seabed of the Marlborough Sounds to the territorial limit as customary land according to Te Ture Whenua Māori Act 1993 (Durie: 87).

The Māori Land Court agreed that customary title continued after 1840 and had not been extinguished by any general or specific legislation (Te Aho: 121). It found that the Ninety Mile Beach ruling was not relevant in this case, because the land had been acquired by pre-emptive purchase (so there had been no investigation of title by the Native Land Court extinguishing customary title of the foreshore and seabed) (Boast (b): 106). The Māori Land Court therefore decided it had jurisdiction to investigate whether tangata whenua had interests in the foreshore and seabed of the area in question (Ministerial Review Panel: 105-106).

The idea that the courts could have jurisdiction to decide title based only on fact and legal arguments was too much for the Crown. It appealed to the Māori Apellate Court, which sent the case to the High Court. The Crown reverted to the reasoning that had saved it in both the Kauaeranga and the Ninety Mile Beach judgments—national interest. According to this argument, it is irrelevant whether the legal owner of the foreshore and seabed (as at 1840) ever gave up their title; likewise, it is irrelevant whether it was ever taken from them. What is relevant is that finding in favour of tangata whenua would make all other citizens trespassers over the coastal strip and affected seabed, waters and air above them and would affect environmental reform and international obligations (Durie: 88). The High Court agreed with the Crown. Regarding the foreshore, this was based on Ninety Mile Beach. Regarding the seabed, the court held that the Territorial Sea and Exclusive Economic Zone Act extinguished customary title to the seabed (Ministerial Review Panel: 106).

Tangata whenua appealed to the Court of Appeal. Because of the significance of this case, it took the Court of Appeal a year from hearing the arguments to releasing its decision, which was in favour of tangata whenua. Like the Māori Land Court, the Court of Appeal found that the Māori Land Court had jurisdiction in deciding Māori interests in the foreshore and seabed. This does not mean that the court found that Māori own the foreshore and seabed. Rather it means that courts will decide whether or not tangata whenua hold title to specific areas of foreshore and seabed based on the facts relating to those areas.

And back to public ownership

To me, the Court of Appeal decision seems reasonable and logical. I imagine New Zealanders expect court cases, whether investigations of title or any other matter, to be decided on the relevant facts. And yet the Government was able to convince many New Zealanders that something about this is not fair. That by allowing the courts to decide individual cases based on facts, the public is somehow losing something important. In reality, all that was lost was the incorrect belief that the Crown owned the beaches.

The Government announced that it would introduce legislation which would "establish what has long been assumed that the beaches and seabeds have long been there for all New Zealanders" (cited in Durie: 92). In 2004, they passed the Foreshore and Seabed Act:

“The object of this Act is to preserve the public foreshore and seabed in perpetuity as the common heritage of all New Zealanders in a way that enables the protection by the Crown of the public foreshore and seabed on behalf of all the people of New Zealand, including the protection of the association of whānau, hapū, and iwi with areas of the public foreshore and seabed. (Foreshore and Seabed Act 2004, s 3)”

The Act only affects customary Māori land—land that otherwise could be converted to freehold title if tangata whenua rights have not been extinguished. It does not touch the ‘parcels’ of private foreshore and seabed. Until the Court of Appeal decision, tangata whenua had no chance to investigate title to areas of foreshore and seabed, they could not convert their customary title to freehold (private) title.

However the Crown frames it, the Foreshore and Seabed Act is a confiscation, the same as any other colonial confiscation. Their reaction to the Court of Appeal decision allowing courts to investigate Māori title to areas of foreshore and seabed, showed that preserving the rule of law is less important than entrenching Crown assumptions of sovereignty. Especially when that assumption is found to be illegitimate.

The review of the Foreshore and Seabed Act 2004 found that it should be repealed. Parliament is currently finishing a draft Bill to replace the Act. All the signs are that it will use different language to do essentially the same thing as the 2004 Act.

The Crown has discussed tests for customary ownership that require proof of continuous and exclusive use and occupation (New Zealand Government: 36). This means that if tangata whenua left an area, whether because they sold the land, or because the Crown forced them to leave, they would fail the test. As this essay has touched on, the Crown has taken land from tangata whenua in many ways; this test would punish tangata whenua for those thefts, while rewarding the public of New Zealand.

The Crown has discussed a form of customary ownership. Even in the cases where tangata whenua are able to prove exclusive and continuous use and occupation, the courts would not give them title, but would instead award customary title. Customary title (whatever they end up calling it) would be a limited ownership. It would allow some management rights of the area by including some influence in the permit and resource consent process, conservation process and planning documents of the area. It would not include the right to sell the land, nor to restrict public access, fishing and navigation, or existing use rights (New Zealand Government: 40).

I cannot follow the logic of this. On the one hand, the Crown may now be willing to acknowledge that there are areas of foreshore and seabed where tangata whenua have kept mana whenua. On the other hand, the Crown intends to define which rights it will ‘grant’ to those people in those areas. How can this be fair? If tangata whenua have not ceded rangatiratanga of an area, then it is up to them to define their relationship with that area.

Conclusion

The Crown was so successful at maintaining its myth of ownership of the foreshore and seabed, that it has currently made it reality. For the time being, the foreshore and seabed actually does belong to all New Zealanders. We have come to believe that our love of the beach trumps any previous claims or connections to that beach; our right to the beach is more important than anyone else’s. And yet New Zealanders often describe ourselves as having 'a sense of fair play' and egalitarianism, always backing the underdog (e.g. www.newzealand.com, accessed 16/8/2010). By allowing our government to confiscate Māori rights to the foreshore and seabed, we have exposed these national ‘traits’ as lies.

Through a concerted effort of self interest and amnesia, with loads of help from our education system, most New Zealanders now believe it is fair and reasonable to deny titles to the foreshore and seabed to tangata whenua, no matter how deserving their case. Many New Zealanders seem upset that Māori may again be allowed to contest these property rights in court. Because, although property rights should always be protected, Māori property rights are somehow different from other private property rights.

Colonisation is built on the belief that it is always in the national interest to take land from tangata whenua. The Foreshore and Seabed Act 2004 showed that New Zealand is still in colonisation mode. I suspect the new foreshore and seabed bill will be just the same.

ORAL SOURCES
Mikaere, Ani (23/7/2010) "The Treaty of Waitangi" Delivery to Year 2 Poutuarongo Ahunga Tikanga students, Te Wānanga-o-Raukawa, Ōtaki

PUBLISHED MATERIAL
Bennion, Tom, Malcolm Birdling and Rebecca Paton (2004) Making Sense of the Foreshore and Seabed Maori Law Review, Wellington

Boast (a), Richard (2004) "Māori Land and the Treaty of Waitangi" Māori Land Law (2nd ed.) Edited by Richard Boast, Andrew Eruiti, Doug McPhail and Norman F Smith. LexisNexis

Boast (b), Richard (2004) "The Evolution of Māori Land Law 1862-1993" Māori Land Law (2nd ed.) Edited by Richard Boast, Andrew Eruiti, Doug McPhail and Norman F Smith. LexisNexis

Durie, Mason (2005) Ngā Tai Matatū: Tides of Māori Endurance Oxford University Press, Melbourne

Government. New Zealand (2010) Reviewing the Foreshore and Seabed Act 2004 Consultation Document

Ministerial Review Panel (2009) Pākia ki Uta, Pākia ki Tai: Ministerial Review of the Foreshore and Seabed Act 2004, Volume 1 Government Printer, Wellington

Te Aho, Linda (2010) "Judicial Creativity" Weeping Waters: The Treaty of Waitangi and Constitutional Change Edited by Malcolm Mulholland and Veronica Tawhai. Huia Publishers, Wellington

Williams, David V (1999) Te Kooti Tango Whenua: The Native Land Court 1864-1909 Huia Publishers, Wellington

NOTES
1. Incidentally, Crown pre-emption also applies to wenua. So if the foreshore and seabed are excluded from the meaning of wenua in Ko te tuarua, they should also have been excluded from Crown pre-emption

2. Although Crown pre-emption was sometimes waived, this is broadly true. The Native Lands Act 1862 waived all Crown pre-emption, but it was re-instated in some areas until the Native Land Act 1909. (Boast (a), p 13).

3. Whether or not these deeds reflect legitimate purchases, were signed under coercion, or are honest representations of the agreements made, is beyond the scope of this essay.