Don Brash
Don Brash was Reserve Bank Governor from 1988 to 2002, and National Party Leader from 2003 to 2006.
A letter signed by more than 170 legal ‘experts’ has been circulated around the media in the last few days and quoted extensively. Unfortunately, I have not been able to locate the letter in its entirety but have gathered some quotes.
The letter claims to fact check Hobson’s Pledge’s ad which was published on the front and inside page of the Herald last week. However, this group of alleged ‘experts’ appear to have analysed the law as they wish it to be rather than what it is.
Consequently, I am going to fact check them back.
1. “The foreshore has never historically been in public ownership: it is not owned by anybody, except for the areas of the foreshore that are currently in (mainly non-Māori) private ownership.”
This is not true. In 2004, Helen Clark’s government passed the Foreshore and Seabed Act. It was, of course, highly controversial. This law was in place until John Key’s government replaced it with the Marine and Coastal Areas Act in 2011.
For seven years the law of New Zealand stated:
... the full legal and beneficial ownership of the public foreshore and seabed is vested in the Crown, so that the public foreshore and seabed is held by the Crown as its absolute property.
13(1) Foreshore and Seabed Act 2004
We can quibble about the words Crown and public, but, for the purposes of land ownership, ‘Crown ownership’ and ‘public ownership’ are equivalent. It is certainly incorrect to say, as the 170 lawyers do, the foreshore “has never been in public ownership” and “is not owned by anybody”.
The legal experts may prefer the approach of John Key’s government, but that doesn’t mean they can write Helen Clark’s Foreshore and Seabed Act out of history.
Many New Zealanders would like to see a return to public/Crown ownership and when they advocate for this, they are neither misinforming nor being discriminatory. It is a simple preference for Clark’s law over Key’s.
Te Pāti Māori, who have been chief among those crying ‘misinformation’, should be well aware of the nuances of this bill given their now President John Tamihere was a member of the Labour Government when the Foreshore and Seabed Act was passed.
2. Secondly, they say the ad implied that ‘customary marine titles’ gave iwi, hāpu and/or whānau the right to own parts of the foreshore. This is not true.
The authors of the letter have again rewritten history and this time ignored the intent of the Marine and Coastal Area Act. In the lead up to the passing of this bill, John Key and Chris Finlayson were grilled by media on the meaning of words and the intentions of their legislation. It was a high profile and significant piece of legislation.
A quick Google search of articles from the time shows that the minister in charge of the bill – Attorney-General Chris Finlayson – was adamant that Customary Marine Titles were a form of ownership.
The NZ Herald reported:
Attorney-General Chris Finlayson said yesterday that customary title was “an ownership title” – meaning that Māori groups awarded customary title in the foreshore and seabed will be the legal owners of it and the minerals beneath it.
At the first reading of the bill, Minister Finlayson said:
This bill provides for the exercise of a number of valuable ownership rights because, once granted, such titles will have the following rights in the customary title area: the right to permit or not permit applications for new resource consents, with limited exceptions defined in the bill; the right to give or withhold permission for conservation activities; the protection of wāhi tapu; the ownership of minerals other than petroleum, uranium, silver, and gold; the right to create a planning document; and the presumed ownership of taonga tūturu, which are Māori cultural or historical objects.
At the second reading, MP Peter Dunne said of the Foreshore and Seabed Act:
The concept of Crown ownership was an assertion of something that was never there before. It created the possibility of the Crown as landlord. The Crown could privatise the foreshore and seabed. The Crown could limit access. The Crown could sell it.
Indeed throughout the process of the bill proceeding through parliament, Metiria Turei argued that the concepts of ownership as relating to customary titles should be defined to recognise tikanga approaches to ownership.
Ownership was a central part of the discussion of the legislation. One cannot read the Hansard notes without concluding that Minister Finlayson intended that his Bill provide ownership rights to Customary Marine Title holders.
3. Thirdly, they say the ad implied a ‘customary marine title’ would prevent New Zealanders from accessing beaches, including to fish and swim. This is not true. The legislation enabling the award of customary marine titles secures public access to the foreshore.
The Hobson’s Pledge advertisement does not assert that customary marine titles automatically trigger a restriction of public access. We acknowledge that the legislation states that public access and activity such as fishing won’t be impeded. However, MACA contains a significant carve out.
It provides for title holders to declare an area ‘wāhi tapu’. This means that the area is of special significance in accordance with tikanga.
Section 79 (wāhi tapu conditions) of the Marine and Coastal Area Act says:
The wāhi tapu conditions that must be set out in a customary marine title order or an agreement are…the prohibitions or restrictions that are to apply, and the reasons for them; and any exemption for specified individuals to carry out a protected customary right…Wāhi tapu conditions—may affect the exercise of fishing rights…
This means that there could be any number of wāhi tapu areas which restrict access. As we see with the use of rāhui to blockade areas for various reasons, these kinds of concepts are liberally used once given the power.
4. And fourthly, they say that “contrary to the impression created by the advertisement, there are very hard legal tests to be met before a wāhi tapu (including a rāhui) will be recognised”.
There are criteria to be met in order to declare a wāhi tapu area. However, we can hardly be expected to put much stock in the robustness of this threshold when the very reason the government is planning to amend the law is that the judiciary have expanded criteria so vastly.
This criterion pertains to ‘exclusive use’ and is the reason that despite Prime Minister John Key emphatically stating that very few awards of Customary Marine Titles would be made, almost the entire coastline of New Zealand is now under application.
The judiciary have behaved very boldly in relation to MACA and have rapidly evolved its scope and outcomes.
In any case, it is difficult to see how the criteria for wāhi tapu could be considered “hard legal tests”.
Marine and Coastal Area Act 2011:
78(2)A wāhi tapu protection right may be recognised if there is evidence to establish—
(a) the connection of the group with the wāhi tapu or wāhi tapu area in accordance with tikanga; and
(b) that the group requires the proposed prohibitions or restrictions on access to protect the wāhi tapu or wāhi tapu area.
5. “Moreover, wāhi tapu are subject to statutory restrictions, and cannot, for example, prevent fishers from taking their lawful entitlement in a quota or fisheries management area.”
This is correct, according to the legislation. However, it is irrelevant to what we are suggesting. The issue Hobson’s Pledge are concerned about is that particular areas are restricted for fishing, perhaps with exemptions for Māori fishers via customary rights.
Recreational fishers have connection to place as well. They may have a spot that is local to them or that they have visited for many years. Sure, they can go fish somewhere else, but depending on the size of the wāhi tapu area they may need to go some distance.
Theoretically, people or businesses might be still ‘entitled’ to their quota, but if the geographic area is considerably restricted and excludes the most fish-dense spots, they are going to struggle to make it.
6. The group says Hobson’s Pledge is entitled to “robust expression of opinion but are not entitled to mislead and deceive consumers”.
Quite. Likewise, a group of 170 legal ‘experts’ are entitled to have their opinions but it is wrong that they can present their activist beliefs as fact. They cannot rewrite history or misrepresent the law.
Hobson’s Pledge expects robust debate. We don’t expect to be subjected to a barrage of false accusations of misinformation, lies, racism and hatred.
This article was originally published by Bassett, Brash and Hide.
