Analysis: The foreshore and seabed debate is back in the public discourse - and so are the misconceptions that Māori want to block access to beaches, writes 1News reporter Te Aniwa Hurihanganui.
Controversy is swirling yet again over the foreshore and seabed following a Government announcement to amend the law on Māori customary rights, and parts of the public response to that have been vile.
Certain corners of social media have seen the return of the “greedy Māori” trope. They are coming after the country’s pristine coastlines. They want to own and control the seabed. And they want to stop everyday New Zealanders from accessing the beach.
That was the rhetoric more than 20 years ago too, when Ngāti Apa went to the courts seeking a determination of the foreshore and seabed in the Marlborough Sounds as Māori customary land - in other words, recognition that their customary rights over the area had never been extinguished.
The Court of Appeal found they hadn’t.
For many Māori, the foreshore and seabed was their food basket, where they berthed canoes, cleansed their bodies and buried their dead. Ngāti Apa wanted to continue exercising those customary rights. They weren’t fighting in the courts to prevent public access to the beach.
However, that’s exactly how some politicians and media framed the issue - and the racist backlash was rife. Māori were perceived and treated like villains, as though they were coming after and seeking to dismantle the “Kiwi Dream”.
In 2004, Helen Clark’s Labour government almost removed those customary rights entirely with an Act that declared the foreshore and seabed was owned by the Crown. It appeared the foreshore and seabed could be owned, just not by Māori.
The uproar over the controversial Foreshore and Seabed Act 2004 was so great that it was eventually repealed and replaced with the current Marine and Coastal Area Act 2011. That was introduced by John Key’s National government and explicitly states that no one owns the foreshore and seabed. It also allows for Māori to apply for the recognition of limited rights, including what is known as customary marine title.
If recognised, Māori are granted certain powers, such as the ability to approve or refuse permission to others for some activities that require resource consent.
But the legislation is crystal clear when it comes to public access - Māori cannot sell the land or block the New Zealand public from it, unless the area is classified wāhi tapu, such as burial grounds.
Let’s not forget it is already possible to prevent public access to the foreshore and seabed when it comes to commercial interests, a right certain marine and resource consent holders have enjoyed for decades.
Determining customary marine title
Every lawyer I have spoken to about the Marine and Coastal Area Act has told me that the test for customary marine title is exceptionally difficult to meet, if not nearly impossible, when interpreted literally. And last year, the Court of Appeal in Re Edwards* agreed with them.
But now the Government wants to overturn that decision.
Under the Act, not only do Māori need to show they have held a specific area of the foreshore and seabed in accordance with tikanga, but they also need to prove they exclusively used and occupied it from 1840 to the present day without substantial interruption.
When interpreted literally, which the Government has signaled is its preference, the test doesn’t take into account factors that may have led to Māori losing control of these areas in the first place, such as certain Crown laws.
In navigating the complex and contradictory nature of the legislation, the Court of Appeal attempted to clarify how the test should be interpreted. But the Government believes the Court significantly lowered the threshold for customary marine title.
When justifying its decision to overturn the Court’s ruling with a proposed new Bill, Treaty Negotiations Minister Paul Goldsmith said “all New Zealanders have an interest in our coastal waters”.
While that statement is true, New Zealanders’ rights to access those coastal waters are already largely protected under this legislation. The public will still have access to almost all areas where customary marine title has been granted to Māori, regardless of whether this Bill succeeds.
For Māori, on the other hand, despite having had the longest connection to those coastal waters, and the promise of full exclusive and undisturbed possession of their lands, fisheries, and taonga under the Treaty of Waitangi, the protection of their customary rights is far from guaranteed.
And despite the ongoing cries of so-called “greedy Māori” wanting to take over the country’s beaches, it never has been.
*Whakatōhea Kotahitanga Waka (Edwards) & Ors v Te Kāhui and Whakatōhea Māori Trust Board & Ors [2023] NZCA 504 per Cooper P, Miller and Goddard JJ.
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