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Legal Background To Foreshore And Seabed Review

Fuseworks Media
Fuseworks Media

Wellington, July 1 NZPA - The Court of Appeal's 2003 decision in the Ngati Apa case stemmed from that iwi's discontent about the Marlborough District Council's refusal to grant mussel farming licences in areas it had traditionally fished in.

The case was fought for years until the Court of Appeal ruled that the courts did have jurisdiction to decide whether Maori customary title could extend to any part of the foreshore and seabed.

The decision took the Government by surprise as it had long believed that past laws had extinguished all customary claims to the foreshore and seabed.

The Court of Appeal also overturned one of its 40 year old decisions (the Ninety Mile Beach case) that held that all titles to land came from the Crown and English common law had extinguished native title in New Zealand.

The court refused to say whether any customary claim to parts of the foreshore and seabed would be successful, it just raised the possibility that it could be if the area had been found to be in continual use since pre-colonial days.

Shortly after the decision Cabinet decided no appeal would be launched against it.

However ministers feared that the result could end with some parts of the foreshore and seabed covered by potential customary title and this could convert into private ownership.

The decision was taken to legislate for Crown ownership of the foreshore and seabed and set up a separate process to acknowledge customary rights and title.

This set off a storm among Maori who said their property rights were being extinguished.

It also sparked a concerted campaign by National over concerns that the public would lose access to beaches.

In late 2004 the Foreshore and Seabed Act was passed.

Since then nine applications have been made for a customary rights order over foreshore and seabed and one application to the High Court, but no orders have been issued.

Five Maori groups have begun negotiations with the Crown to recognise their coastal interests.

Only Ngati Porou has reached a deed of agreement which largely recognises the iwi's interests in management of the area and legal entitlement to be consulted and involved.

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