Seabed and Foreshore in New Zealand
The first decision of the ECO Executive Committee on the government’s statements regarding its proposed policy on the Foreshore and Seabed was that the timeline for the consultation on the matter was deplorably short and that ECO would not make hasty decisions on the matter.
The Executive expressed considerable concern that the government intended to foreclose access by Maori to the Maori Land Court on some aspects of the issue.
It also observed that while the foreshore is a hugely important place ecologically, socially and culturally, the seabed is of vast extent and may really be the main driver of some of the interests pursuing access to the seabed and foreshore.
The escalating tide of marine farming applications was suspended in 2001 by the government with the passing of the Resource Management (Aquaculture Moratorium) Act.
The purpose of the moratorium was to allow councils to plan for aquaculture within designated coastal areas (Aquaculture Management Areas) rather than allowing “open season”.
The Government has now introduced legislation to extend the moratorium till the end of 2004.
Aquaculture was not part of the 1992 Sealords fisheries settlement. Maori, seeing allocations that seemingly paid little heed either to their aspirations to be part of the aquaculture industry or traditional Maori connections with the seabed, challenged the government through the Maori Land Court.
They claimed customary rights to the foreshore and seabed in a case relating to the Marlborough Sounds.
In June 2003 the Court of Appeal delivered its judgement. It decided that the Maori Land Court could hear cases based on customary rights to ownership of the foreshore and seabed. This did not mean that every case would be successful or that the Court would give title to large areas.
The government’s initial ill-coordinated steps to deal with the Court of Appeal’s decision on the case was met with vigorous opposition from Maori, particularly the intention to legislate away access to the Maori Land Court.
Since then Maori and the Government have been in dialogue, with the government proposing to announce a revised proposal later in December.
The Government had proposed four Principles for its policy:
The Principle of Access – that the foreshore and seabed should be “public domain” with open access for all New Zealanders. “Public domain” was to be some form of indivisible and inalienable land.
The Principle of Regulation. This provided that the Crown is responsible for regulating use of the foreshore and seabed, on behalf of all present and future generations of New Zealanders.
Principle of Protection [of customary interests]. The government promised that there would be processes to enable the customary interests of whanau, hapu, and iwi in the foreshore and seabed to be acknowledged and specific rights to be identified and protected.
The Principle of Certainty. That there should be certainty for those who use and administer the foreshore and seabed about the range or rights that are relevant to their actions.
There was no Principle of Protection of the Environment: despite the obligation under the UN Convention on the Law of the Sea Art 192 to “preserve and protect the marine environment”.
According to the government’s paper, “the seabed includes the soil and subsoil from the high tide line to the 12 nautical mile limit of New Zealand’s territorial sea (generally described as the coastal marine area) and the soil and subsoil under New Zealand’s EEZ which runs from 12 to 200 nautical miles from the low tide mark, and in the continental shelf where it extends beyond 200 nautical miles.”
ECO’s Executive Committee has serious concerns that the focus on rights and ownership is overwhelming the foremost need to protect conservation values and sustainable management of the coast and seabed.
Our coastal and seabed ecosystems evolved long before humans arrived in New Zealand and will continue long after we go. The coastal area is also where many of the greatest impacts of global warming will manifest with consequences for many, including those with entitlements.
The first human immigrants recognised the need and evolved extensive forms of protection and guardianship – the kaitiakitanga that Maori have exercised in caring for these areas and that also defines their place in this world.
This duty of care has been held to despite consistent social denial and legislative ignoring of kaitiakitanga through virtually all the last 160 years.
Kaitiakitanga was practiced in relation to land held communally by hapu and tribe. In our increasingly diverse society we need to ensure that the principle of common ownership is continued with recognition and enhancement of that exercise of guardianship of the treasures of Tangaroa.
In a similar way stewardship has been recognised by Pakeha as guardianship for the future of nature for its intrinsic values.
The concept of public domain goes some way to recognise such concepts but to be effective and to achieve legitimacy, there must be processes to give due regard and acknowledgement of the traditional interests.
Any public access interests should be defined and constrained to be subject to conservation and customary conservation interests such as breeding birds, waahi tapu and rahui.
The future for coastal management for us as a multicultural and bi-cultural nation must be to develop in places localised community management with Maori, operating under overarching statutes of care but providing shared decision making. We can expect that there will be different models in different places for different communities.
The government must work with its Treaty partner to achieve such processes in a transparent manner and properly to consult with the public, its own constituency. Together we must spell out processes for communities to work together to ensure enhancement of marine management to protect the environment.
ECO sees the foreshore and seabed debate as just one aspect of a drive in the marine area to stake out a proliferation of rights in the largest privatisation drive of public commons that we have seen since the Rogernomics era of the 1980s.
Maori rightly want to ensure that their rights are not pushed aside or ignored as has happened to them in the past. Ultimately though, humans do not “own” the environment. Such notions are a human conceit which is both ethically and evolutionarily improbable. We do however have to devise rules of access, entitlements and obligations and must do so consistent with international and Treaty law.