The New Zealand foreshore and seabed controversy is a debate in the politics of New Zealand. It concerns the 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. On 18 November 2004, the New Zealand Parliament passed a law which deems the title to be held by the Crown. This law, the Foreshore and Seabed Act 2004, was enacted on 24 November 2004. 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 It was repealed and replaced by the Marine and Coastal Area (Takutai Moana) Act 2011.
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".[4]
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 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".[5] The ruling was foreshadowed by academic work during the late 1980s and 1990s, which argued that the Ninety Mile Beach case was wrongly decided.[6]
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.[citation needed] 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.[7][8] The Government response was equally sharp and critical, accusing the tribunal of ‘implicitly’ rejecting the principle of parliamentary sovereignty.[citation needed]. 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.[9] The Human Rights Commission took another view, arguing that the legislation was discriminatory and not justified by section 5.[10]
Ongoing debate
The hīkoi on Cambridge Terrace, heading to Parliament.
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, National Party leader Don 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’.[11] Shortly afterwards, an opinion poll put the National Party ahead of the Labour Party for the first time in over 18 months.
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.
The hīkoi at the New Zealand Parliament.
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 Tariana Turia's decision.[12]
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.
Legislation
On 18 November 2004, the Labour–Progressive government passed the Foreshore and Seabed Act, which declared that the land in question was owned by the Crown. Māori can, however, apply for "guardianship" of certain areas. The act was highly contentious.
Green Party MPs at the hīkoi/protest with a banner reading "Honour The Treaty".
The government's foreshore and seabed bill passed its first vote in Parliament on 7 May 2004, backed by Labour, the Progressives, and New Zealand First. The National Party opposed the bill, saying that it gave too much control to Māori, United Future opposed it due to the removal of the public domain concept and ACT opposed it on the grounds of the legislation being retrospective, that it was a denial of property rights (in this case Māori property rights), and that it was an unwarranted incursion by the Crown into areas that were specifically Tikanga Māori. The Greens, another party in Parliament to take a position similar to that of the Māori protesters, also voted against the bill, saying that it overrode Māori rights and offered no guarantee that the land would not later be sold. Tariana Turia and Nanaia Mahuta both voted against the bill. The first vote tally was 65 in favour and 55 against. Deputy Prime Minister Michael Cullen, told Parliament that the bill "safeguards the seabed and foreshore for everyone", protecting the rights of both Māori and non-Māori. Opposition to the bill remained strong, however, and protests and criticism continued as the government's legislation progressed.
The bill's passage through its first vote meant that it was then considered by a special select committee of Parliament, which heard public submissions on the matter. The select committee having allowed six months for submissions, reported back to the parliament in November that they had been unable to agree on a position and were therefore reporting back the bill with no recommendations whatsoever. The bill, slightly amended by the Government itself, passed its second vote on 17 November 2004 by the same margin as in the first vote. It was then considered by a Committee of the House (with Parliament sitting under urgency). It finally received its third vote on 18 November 2004. The final vote tally was 66 in favour and 54 against — Nanaia Mahuta, who had previously voted against, this time voted in favour.
On 15 December, the legislation was modified slightly after it was realised that as it was written, the act nationalised all council-owned land reclaimed from the sea.[13] This included areas such as Auckland's Britomart and Wellington's waterfront. This was not part of the intention of the act.
The United NationsCommittee on the Elimination of Racial Discrimination, after being asked by Te Runanga o Ngāi Tahu to consider the legislation, issued a report on 12 March 2005 stating that the foreshore and seabed legislation discriminates against Māori by extinguishing the possibility of establishing Māori customary title over the foreshore and seabed, and by not providing a means of redress. Tariana Turia and the Māori Party claimed this as a significant victory, although the report did not prompt any change in government policy.[citation needed]
Situation following the controversy
The foreshore and seabed issue, as part of the larger race relations debate, was one of the most significant points of contention in New Zealand politics at the time, and remains a significant issue for many people. The Labour government's popularity was severely damaged by the affair, although subsequent polls showed that it recovered its support and Labour was elected for a third term in September 2005.
While the act was widely criticised by Māori, some iwi have chosen to negotiate agreement within the bounds of the act. The first agreement made through the act was ratified by Ngāti Porou and the Crown in October 2008 (see below).
Special Rapporteur
In November 2005, following government criticism of the report issued by the UN Committee on the Elimination of Racial Discrimination (UNCERD), Special Rapporteur Professor Stavenhagen, a Mexican researcher who reports to UNCERD, arrived in New Zealand at the invitation of the Government. He attended four hui and heard severe criticism of the government. He also met with Deputy Prime Minister Michael Cullen who crafted the foreshore law. While the foreshore and seabed issue was central to his visit, discussions also related to Treaty of Waitangi settlements, and economic, social and cultural rights generally. On 25 November 2005 he issued a statement which noted that “[w]hile the standard of living of the Māori of New Zealand has improved and is better than that of indigenous peoples in poorer countries, there is widespread concern that the gap in social and economic conditions is actually growing larger and an increasing proportion of Māori are being left behind”. His final report was completed in March 2006.[14] It was highly critical of the Government in a number of areas, including the Foreshore and Seabed Act, which it recommended should be repealed or significantly amended. The Government response to this further criticism was again negative describing Professor Stavenhagen's report as "disappointing, unbalanced and narrow".[15]
Member's bill
In October 2006, Tariana Turia (of Te Pāti Māori) introduced a member's bill designed to repeal the Foreshore and Seabed Act.[16] In recreating the legal status before the Foreshore and Seabed Act was passed, however, the bill was reported to vest ownership of the foreshore and seabed in the Crown. Turia denied that her bill would do anything but repeal the Foreshore and Seabed Act 2004 in its entirety and described Labour's descriptions as "scaremongering".[17]
First foreshore and seabed agreement signed
The first foreshore and seabed agreement was ratified on 31 October 2008. The agreement was negotiated between people of the Ngāti Porou area on New Zealand's East Cape and the Crown (effectively the New Zealand government). The NZPA reported about 200 people representing Ngāti Porou were present to witness the signing of the deed. The deed protects customary rights of local iwi and retains wider public access to Ngāti Porou coastal areas.[18]
Continued calls for repeal
Following a change of government with the election of National in November 2008, the Green Party continued to call for repeal of the Foreshore and Seabed Act 2004.[19]
National front bencher Christopher Finlayson, sworn in as Minister for Treaty of Waitangi Negotiations in November 2008, described the act as "discriminatory and unfair". Commentary at the time of his appointment suggested the Foreshore and Seabed Act would be reviewed under a National government.[20]
Announcement of repeal
On 14 June 2010, Prime Minister John Key announced that he would be proposing the repeal of the act. The replacement Marine and Coastal Area (Takutai Moana) Act 2011 in turn created opposition from both sides. Some Māori argued that the bill was a fraud as essentially no Māori groups would meet the test for increased rights to the foreshore, while others, such as the Coastal Coalition, felt that the bill risks free access to coastal areas for a large part of New Zealanders.[21]
2024 Customary marine title controversy
On 21 May 2024,[22] Treaty Negotiations Minister Paul Goldsmith and Oceans Fisheries Minister Shane Jones met with seafood industry representatives to discuss Customary Marine Titles. According to meeting notes, both ministers were sympathetic to industry concerns about the Marine and Coastal Area (Takutai Moana) Act 2011 and supported proposed law changes to reduce the 100% of coastline subject to customary title to 5%, which would make it harder for Māori to claim foreshore and sea customary title. Following the meeting, the Government announced changes to foreshore and seabed legislation covering Māori customary titles.[23][24] The meeting was also attended by Te Arawhiti (Office for Māori Crown Relations) deputy secretary Tui Marsh and officials from the Ministry for Primary Industries.[25]
In late July 2024, Goldsmith confirmed that the National-led coalition government would disregard a 2023 New Zealand Court of Appeal ruling that lowered the threshold for proving Māori customary marine title claims. Goldsmith announce that the Government would amend section 58 of the Marine and Coastal Area (Takutai Moana) Act 2011 to require marine title claimants to prove they had continual exclusive use and ownership of the area since 1840. This law change was part of National's coalition agreement with NZ First.[26] In response, Te Pāti Māori MP Tākuta Ferris accused the Government of taking away Māori rights and warned that the Government should expect protests.[27]
On 26 August 2024, the Waitangi Tribunal began holding an urgent inquiry into the Government's plans to change the law to tighten the threshold for Māori customary marine title claims. On the first two days, the Tribunal heard testimony from Treaty of Waitangi lawyer Tom Bennion and Te Arawhiti deputy secretary Tui Marsh.[22][25] On 13 September, the Tribunal released its initial report into the proposed changes to the Marine and Coastal Area (Takutai Moana) Act 2011. It criticised the Government for ignoring official advice, failing to consult Māori and for breaching several principles including active protection and good governance.[28]
In October 2024, the Attorney-GeneralJudith Collins appealed the Court of Appeal's 2023 decision to lower the threshold for proving Māori customary foreshore and seabed claims to the Supreme Court of New Zealand. On 2 December, the Supreme Court upheld the Attorney-General's appeal, ruling that the lower court had erred in its approach to interpreting the threshold within the framework of the Marine and Coastal Area (Takutai Moana) Act 2011.[29]
The Waitangi Tribunal is a New Zealand permanent commission of inquiry established under the Treaty of Waitangi Act 1975. It is charged with investigating and making recommendations on claims brought by Māori relating to actions or omissions of the Crown, in the period largely since 1840, that breach the promises made in the Treaty of Waitangi. The Tribunal is not a court of law; therefore, the Tribunal's recommendations and findings are not binding on the Crown. They are sometimes not acted on, for instance in the foreshore and seabed dispute.
Dame Tariana Turia is a former New Zealand politician. She was first elected to Parliament in 1996. Turia gained considerable prominence during the foreshore and seabed controversy in 2004, and eventually broke with the Labour Party as a result. She resigned from parliament, and successfully contested a by-election in her former electorate as a candidate of the newly formed Māori Party, of which became a co-leader. She retired from Parliament in 2014.
The Te Tai Hauauru by-election was a by-election in the New Zealand electorate of Te Tai Hauāuru, one of the Māori electorates. The date set for the by-election was 10 July 2004. It saw the re-election of Tariana Turia, a former MP for the Labour Party and now co-leader of the Māori Party.
Te Pāti Māori, also known as the Māori Party, is a political party in New Zealand advocating Māori rights. With the exception of a handful of general electorates, Te Pāti Māori contests the reserved Māori electorates, in which its main rival is the Labour Party.
Te Ringa Mangu Netana "Dun" Mihaka was a New Zealand Māori activist, author, and political candidate.
Sir Pita Russell Sharples is a New Zealand Māori academic and politician, who was a co-leader of the Māori Party from 2004 to 2013, and a minister outside Cabinet in the National Party-led government from 2008 to 2014. He was the member of Parliament for the Tāmaki Makaurau electorate in Auckland from 2005 to 2014. He stepped down as co-leader role of the Māori Party in July 2013.
Māori politics is the politics of the Māori people, who were the original inhabitants of New Zealand and who are now the country's largest minority.
Hone Pani Tamati Waka Nene Harawira is a New Zealand Māori activist and former parliamentarian. He was elected to parliament as the member for the Māori electorate of Te Tai Tokerau in 2005 as the Māori Party candidate.
Claims and settlements under the Treaty of Waitangi have been a significant feature of New Zealand politics since the Treaty of Waitangi Act 1975 and the Waitangi Tribunal that was established by that act to hear claims. Successive governments have increasingly provided formal legal and political opportunity for Māori to seek redress for what are seen as breaches by the Crown of guarantees set out in the Treaty of Waitangi. While it has resulted in putting to rest a number of significant longstanding grievances, the process has been subject to criticisms including those who believe that the redress is insufficient to compensate for Māori losses. The settlements are typically seen as part of a broader Māori Renaissance.
Moana Jackson was a New Zealand lawyer specialising in constitutional law, the Treaty of Waitangi and international indigenous issues. He was an advocate and activist for Māori rights, arguing that the New Zealand criminal justice system was discriminatory and leading work on constitutional reforms. In 1987 he co-founded Ngā Kaiwhakamarama i Ngā Ture. He also supported the rights of indigenous people internationally – for example, through leading the working group that drafted the United Nations Declaration on the Rights of Indigenous Peoples and sitting as a judge on the International Tribunal of Indigenous Rights in the 1990s.
The Māori protest movement is a broad indigenous rights movement in New Zealand. While there was a range of conflicts between Māori and European immigrants prior to the signing of the Treaty of Waitangi in 1840, the signing provided one reason for protesting. Disagreements in the decades following the signing sometimes included war.
The Fifth Labour Government of New Zealand was the government of New Zealand from 10 December 1999 to 19 November 2008. Labour Party leader Helen Clark negotiated a coalition with Jim Anderton, leader of the Alliance Party. While undertaking a number of substantial reforms, it was not particularly radical compared to previous Labour governments.
Te Ture Whenua Māori Act 1993 is a statute of the Parliament of New Zealand to "reform the laws relating to Māori land in accordance with the principles set out in the Preamble". These principles "reaffirm" the Treaty of Waitangi "relationship between the Māori people and the Crown" and "recognise that land is taonga tuku iho of special significance to Māori people". To that end, the principles "promote the retention of ... land in the hands of its owners, their whanau, and their hapu, and to protect wahi tapu". Further, they "facilitate the occupation, development, and utilisation of that land for the benefit of its owners, their whanau, and their hapu".
Te Tai Hauāuru is a New Zealand parliamentary Māori electorate, returning one Member of Parliament to the New Zealand House of Representatives, that was first formed for the 1996 election. The electorate was represented by Tariana Turia from 2002 to 2014, first for the Labour Party and then for the Māori Party. Turia retired and was succeeded in 2014 by Labour's Adrian Rurawhe who retained the seat in 2017 and again in 2020.
The Foreshore and Seabed Act 2004 was an Act of Parliament in New Zealand which overruled the 2003 decision of the Court of Appeal in Ngati Apa v Attorney-General. Its passage arose out of, and further fueled, the New Zealand foreshore and seabed controversy. The act was repealed and replaced by the Marine and Coastal Area Act in 2011.
The Marine and Coastal Area Act 2011 is an Act of the New Zealand Parliament created to replace the Foreshore and Seabed Act 2004. It was brought in by the fifth National government and creates a sui generis property class for the marine and coastal area, in which it is vested in no one. This is in contrast to the Foreshore and Seabed Act 2004 in which the foreshore and seabed were vested in the Crown.
Adrian Paki Rurawhe is a New Zealand Labour Party politician. He has been an MP since 2014, and the speaker of the New Zealand House of Representatives from 2022 to 2023.
The principles of the Treaty of Waitangi is a set of principles derived from, and interpreting, the Treaty of Waitangi, which was signed in New Zealand in 1840. The phrase "principles of the Treaty of Waitangi" was first used in the Treaty of Waitangi Act 1975, and the principles were codified in 1987. There is no final list and they are determined on a case-by-case basis. They include the three Ps: partnership, participation and protection of rangatiratanga.
In Re the Ninety-Mile Beach was a decision of the Court of Appeal of New Zealand holding that Maori could not hold title to the foreshore because of the effect of section 147 of the Harbours Act 1878 ; and because investigation of title to land adjacent to the sea by the Māori Land Court had extinguished rights to land below the high water mark. The decision was overturned in 2003 by Ngati Apa v Attorney-General.
Debbie Anne Ngarewa-Packer is a New Zealand politician, iwi leader and activist. She is a Member of Parliament and co-leader of Te Pāti Māori alongside Rawiri Waititi, and is the chief executive of the Ngāti Ruanui iwi.
References
↑ Attorney-General v Ngati Apa [2003] 3 NZLR 643 at 95
↑ Attorney-General v Ngati Apa [2003] 3 NZLR 643 at 2
↑ Attorney-General v Ngati Apa [2003] 3 NZLR 643 at 3
↑ Attorney-General v Ngati Apa [2003] 3 NZLR 643 at 96
↑ Attorney-General v Ngati Apa [2003] 3 NZLR 643 at 154
↑ (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)
↑ Waitangi Tribunal, "Report on the Crown's Foreshore and Seabed Policy" WAI 1071 (2004).
↑ Boast, Richard (2011). "Foreshore and Seabed, Again". NZJPIL. 9.
↑ Attorney-General, "Report on the Foreshore and Seabed Bill" (2004) at [56]
↑ Boast, Richard (2005). "Foreshore and Seabed". LexisNexis.
↑ Suszko, Abby (2015). "One Law for All: Contrasting Visions of Equality and Rights in the New Zealand Foreshore and Seabed Debate". Law & History. 2: 60–88 – via HeinOnline.
↑ Pita Sharples (16 October 2006). "Loss and Grief – Uncensored". Speech to the National Association of Loss and Grief Conference. The Maori Party. Retrieved 2 December 2007.
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