New foreshore and seabed proposal
The government is currently seeking submissions on a consultation document regarding the Foreshore and Seabed Act. The document is the result of the 2009 review of the Act – which was negotiated by the Maori party in their confidence and supply agreement with National.
The document covers four possible options:
Option one: Crown notional title
The Crown’s absolute title would be replaced with a notional title (also referred to as radical title). Any customary title that was extinguished by the 2004 Act would be restored. Where customary interests are investigated and found not to amount to customary title, the Crown’s notional title would become absolute ownership.
Option two: Crown absolute title
The Crown would continue to hold its absolute title. Proven customary interests could be recognised through certain statutory awards.
Option three: Maori absolute title
Ownership of the foreshore and seabed (except land in private title) would be vested in Māori. There would need to be a process for determining who would hold ownership in any given area, and the rights of others.
Option four: A new approach – ‘public domain/takiwa- iwi wha-nui’
No one would own (ie, by freehold title) the foreshore and seabed (except existing land held in private title). Instead of identifying an owner of the public foreshore and seabed, legislation would specify roles and responsibilities within it. The Crown and local government would continue to have regulatory responsibility. The area would be named ‘public domain/takiwā iwi whānui’.
The government’s preferred proposal is option four, which seems remarkably close to the current legislation. Under this proposal, the burden will remain on iwi to prove their customary rights to the land, which, despite the very pleasant-sounding name of “public domain”, effectively continues Crown control of the foreshore and seabed.
This approach still assumes that the default ownership of the foreshore and seabed is to the Crown. We should be approaching the issue the other way round – with Maori ownership as a given.
Of the four options outlined, only the third looks to provide a just way forward.
The consultation document can be found here.
The Attorney-Generals release on the consultation document, with more information, can be found here.
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