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Report on the Crown's Foreshore and Seabed Policy

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Report on the Crown's Foreshore and Seabed Policy Downloaded from www.waitangi-tribunal.govt.nz REPORT ON THE CROWN’S FORESHORE AND SEABED POLICY Downloaded from www.waitangi-tribunal.govt.nz Downloaded from www.waitangi-tribunal.govt.nz Downloaded from www.waitangi-tribunal.govt.nz Downloaded from www.waitangi-tribunal.govt.nz REPORT ON THECROWN’S FORESHORE AND SEABEDPOLICY WAI 107 1 WAITANGI TRIBUNAL REPORT 2004 Downloaded from www.waitangi-tribunal.govt.nz Downloaded from www.waitangi-tribunal.govt.nz The cover design by Cliff Whiting invokes the signing of the Treaty of Waitangi and the consequent interwoven development of Maori and Pakeha history in New Zealand as it continuously unfolds in a pattern not yet completely known A Waitangi Tribunal report isbn 1-86956-272-0 www.waitangi-tribunal.govt.nz Typeset by the Waitangi Tribunal Published 2004 by Legislation Direct, Wellington, New Zealand Printed by SecuraCopy, Wellington, New Zealand Set in Adobe Minion and Cronos multiple master typefaces The diagram on page 119 was taken from Gerard Willis, Jane Gunn, and David Hill, ‘Oceans Policy Stocktake: Part 1 – Legislation and Policy Review’, report prepared for the Oceans Policy Secretariat, 2002, and is reproduced here by permission of the Ministry for the Environment. It was originally adapted from one in Parliamentary Commissioner for the Environment, Setting Course for a Sustainable Future: The Management of New Zealand’s Marine Environment (Wellington: Parliamentary Commissioner for the Environment, 1999). Downloaded from www.waitangi-tribunal.govt.nz Downloaded from www.waitangi-tribunal.govt.nz CONTENTS Letter of transmittal . ix Introduction . xi Chapter 1: Tikanga . 1 1.1 What is ‘tikanga’? . 1 1.2 Tikanga in the context of this inquiry . 2 1.3 The tikanga . 4 Chapter 2: From the Treaty to Marlborough Sounds . 15 2.1 What did the Treaty guarantee and protect in 1840? . 15 2.2 How has the Crown’s Treaty duty been affected by 164 years of settlement? . 28 Chapter 3: The Courts . 41 3.1 Introduction . 41 3.2 Marlborough Sounds: two paths for pursuing customary rights in the foreshore and seabed . 41 3.3 The High Court’s jurisdiction . 45 3.4 The Maori Land Court’s jurisdiction . 61 3.5 The range of plausible approaches . 67 3.6 The effect of the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 . 75 3.7 Summary . 77 Chapter 4: The Crown’s Policy . 81 4.1 Introduction . 81 4.2 The policy itself . 83 4.3 Analysis of the Crown’s arguments . 89 4.4 Conclusion . 121 4.5 Summary . 124 Chapter 5: Findings and Recommendations. 127 5.1 Treaty findings . 127 5.2 Prejudice. 136 5.3 Recommendations . 138 Appendix i: Background to the Urgent Hearing. 147 v Downloaded from www.waitangi-tribunal.govt.nz Downloaded from www.waitangi-tribunal.govt.nz Contents Appendix ii: Record of Inquiry . 151 Record of hearings . 151 Record of proceedings . 152 Record of documents . 167 Glossary of Maori terms. 179 vi Downloaded from www.waitangi-tribunal.govt.nz Downloaded from www.waitangi-tribunal.govt.nz ABBREVIATIONS AC Law Reports, Appeal Cases (England) ACJ acting chief justice (when used after a surname) AJHR Appendix to the Journal of the House of Representatives app appendix ATL Alexander Turnbull Library BPP British Parliamentary Papers: Colonies New Zealand (17 vols, Shannon: Irish University Press, 1968–69) c circa ca Court of Appeal CCC (2nd) Canadian Criminal Cases, second series Cth Commonwealth ch chapter CLR Commonwealth Law Reports DNZB The Dictionary of New Zealand Biography (5 vols, Wellington: Department of Internal Affairs, 1990–2000) doc document ed edition, editor fol folio inc incorporated J justice (when used after a surname) JHR Journal of the House of Representatives KB Law Reports, King’s Bench Division (England) ltd limited NA National Archives NZLR New Zealand Law Reports P president of the Court of Appeal (when used after a surname) p, pp page, pages para paragraph qc Queen’s counsel roi record of inquiry s, ss section, sections (of an Act) sec section (of a book, this report, ect) sess session SCR Supreme Court Reports (Canada) vol volume ‘Wai’ is a prefix used with Waitangi Tribunal claim numbers Unless otherwise stated, footnote references to claims, papers, and documents are to the record of inquiry, which is reproduced in appendix ii. A glossary of Maori terms is to be found at the end of the report. vii Downloaded from www.waitangi-tribunal.govt.nz Downloaded from www.waitangi-tribunal.govt.nz ACKNOWLEDGEMENTS It is very important that we recognise that this report would not have been possible in the time available without the dedicated assistance of staff members Grant Phillipson, Charles Dawson,Claire Mason,and Ewan Johnston.All of these staff members played important roles in research and report production, and Grant Phillipson’s efforts in management, coordina- tion, and writing were entirely beyond the call of duty. The team worked long, hard, and extremely well, and we are extraordinarily grateful for their contribution. We acknowledge too the work of Pam Wiki and Hemi Pou as claims administrators. viii Downloaded from www.waitangi-tribunal.govt.nz Downloaded from www.waitangi-tribunal.govt.nz The Honourable Parekura Horomia The Waitangi Tribunal Minister of Maori Affairs 110 Featherston Street Parliament Buildings WELLINGTON WELLINGTON 4 March 2004 Tena koe Enclosed is the Report on the Crown’s Foreshore and Seabed Policy, the outcome of an urgent hearing in Wellington from 20–23 and 28–29 January 2004. The topic of the report is well known to you and your colleagues. We set out our main findings, the prejudice, and our primary recommendation in the introduction to the report, which also functions as an executive summary. The report itself provides background and explanation for our conclusion that the policy breaches the Treaty of Waitangi in ways that we regard as fundamental and serious. Our primary and strong recommendation is that the Government accede to the claimants’ request to go back to the drawing board and engage with Maori in proper negotiations about the way forward. Naku noa Na Judge Carrie Wainwright Presiding Officer Downloaded from www.waitangi-tribunal.govt.nz Downloaded from www.waitangi-tribunal.govt.nz Downloaded from www.waitangi-tribunal.govt.nz Downloaded from www.waitangi-tribunal.govt.nz INTRODUCTION The Process to Date This report is the outcome of an urgent inquiry into the Crown’s policy for the foreshore and seabed of Aotearoa–New Zealand.The many claimant groups represented in the inquiry com- 1 prised most of the coastal iwi. The urgent inquiry was sought after the Crown announced its response to the Court of 2 Appeal’s decision in the Marlborough Sounds case. In that decision, the Court of Appeal departed from the previous understanding that the Crown owned the foreshore and seabed under the common law. This opened the way for the High Court to declare that Maori com- mon law rights in the foreshore and seabed still exist,and for the Maori Land Court to declare land to be customary land under Te Ture Whenua Maori Act 1993. The Crown supported the claimants’application for an urgent inquiry,and the timeframes were all tailored to the Crown’s requests. The changing needs of the Crown meant that a pro- posed hearing in November 2003 was adjourned, and we made time available in January.We tried to balance the need on the one hand for claimants to have sufficient time to prepare for a very significant hearing, and the need on the other for our report to be available to Ministers before planned legislation is introduced. The result was that the hearing took place over six days at the end of January 2004,and we have had four weeks in which to produce our report. Terminology From the outset, it is essential to be clear what we are talking about when we refer to the fore- shore and seabed. First, what is the foreshore? It is the intertidal zone, the land between the high- and low-water mark that is daily wet by the sea when the tide comes in.It does not refer to the beach above the high-water mark. The seabed is the land that extends from the low-water mark, and out to sea. The need to distinguish the foreshore from the adjacent dry land and seabed arises from the English common law, which developed distinct rules for that zone. In Maori customary terms, no such distinction exists. 1. A full list of the claimant groups is contained in the record of inquiry,which is appendix ii.Ngati Porou and Ngai Tahu withdrew late in the day, for reasons that were not disclosed. 2. Ngati Apa and others v Attorney-General [2003] 3 NZLR 643.Although this case is now often referred to as simply ‘Ngati Apa’,we prefer to call it the Marlborough Sounds case, because the appellants included not only Ngati Apa but a number of iwi with mana in the Marlborough Sounds. Ngati Koata, Ngati Kuia, Ngati Rarua, Ngati Tama,Ngati Toa, and Rangitane were also first appellants. Te Atiawa Manawhenua ki te Tau Ihu Trust was the second appellant. xi Downloaded from www.waitangi-tribunal.govt.nz Downloaded from www.waitangi-tribunal.govt.nz Introduction Wewanted to take our language out of the English legal paradigm.Weraised with Sir Hugh Kawharu, a witness in our inquiry,whether there was a Maori term that clearly embraced the whole of the foreshore and seabed. Te takutai moana was a term that he felt may be variously understood by different groups in different situations. To some, it had more of an inshore connotation, whereas others might understand it as also connoting the high seas.
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