Foreshore and seabed property rights and resource use </head> <body> <div id="TopLayer"> <p class="nav"> <a href="index.html">Robin Johnsons economics webpage</a> <a href="Javascript:self.print()">Print this page</a> </p> </div> <h1>Foreshore and seabed property rights and resource use</h1> <p class='center'>by</p> <p class='center'>Robin Johnson</p> <p class='nav'>Poster/Paper, Frontiers in Resource Management: the 7th Annual AARES Symposium, 6-7 October 2004, Auckland, New Zealand.</p> <h5>Theory</h5> <ol> <li> Setting the rules for the rational and fair access to economic resources.</li> <li> Commerce flows from a set of well-designed property rights.</li> <li> Should they be set in some abstract far-off world of reason or ground out in a maelstrom of debate and controversy?</li></ol> <h5>Background</h5> <p>Debate about property rights to the foreshore and seabed land margins erupted in 2003 following a High Court decision to allow maori to take perceived access issues to the maori land court.</p><p> At the heart of the debate is the issue whether the early administrative arrangements for land ownership following annexation of New Zealand in 1840 sufficiently allowed for customary rights?</p><p> The Treaty of Waitangi established among other things that maori would retain 'full exclusive and undisturbed posession of their lands and estates forests fisheries and such other properties as they may collectively or individually posess, so long as it is their wish and desire to retain the same in their posession'.</p><p> Governor Grey brought the Torrens system of land registration with him from South Australia in the 1840s. Registered land title was open to all races and further legislation protected the rights of Maori over subsequent years ( e.g. the Maori land court etc).</p><p> The foreshore and seabed ownership was never clearly defined and successive legislators came to assume that all Maori rights were extinguished. it was this issue which came before the High Court and Court of Appeal in 2003 in a case concerning the Marlborough tribes' access to aquaculture sites in Marlborough Sounds.</p><p> The Court of Appeal confirmed a High Court ruling that Maori common law rights in the foreshore and seabed have never been extinguished and that the Maori Land Court was able to declare such land to be customary land. land below the low water mark was deemed to be clearly owned by the Crown due to the particular statutes concerned.</p><p> In response, the government drafted legislation which nationalised the foreshore and seabed in the interests of all New Zealanders with regard to access and existing rights. Provision was to be made for Maori to have access to the courts to establish continuous customary use of particular sites.</p><p> <h5>Aboriginal rights in Australia</h5> In the 1992 <i>Mabo</i> case the High Court of Australia said that the Meriam people had the right to posess their land on Mer Island in the Torres Strait according to their traditional law and custom.</p><p> Australian law, for the first time, said that Aboriginal and Torres Strait islander people have rights to their country, according to their traditional laws and customs.</p><p> These rights may be recognised when people have maintained a continuing connection with their land and waters and their rights have not been removed by government.</p><p> Native title is the name given to the rights of these people and is a unique form of land title, different from freehold or leashold titles. Native title cannot be bought or sold.</p><p> Native title is not a land right that government gives to indigenous people. It is a right that already exists in places where indigenous people follow their traditional laws and customs and have a continuing connection to their land and waters.</p><p> Source: native title coexistence, national native title tribunal, c1994.</p><p> <h5>Implications for resources</h5> <ol> <li>The common law approach identified that the area between high and low water marks was originally acquired by the Crown under the Treaty along with any pre-existing Maori customary property rights. These rights have never been extinguished.</li> <li>The vast majority of New Zealand land was converted to a fee simple basis thus extinguishing any customary rights. As for land below the high water mark, there was a general supposition before the Marlborough Sounds decision that any customary rights in that zone had been extinguished when the customary rights to the contiguous dry land were extinguished. That supposition was bolstered by a belief in many quarters (including influential judicial and legal quarters) that the Crown owned the foreshore and seabed anyway as part of its prerogative right.</li> <li>The judges considered the application in New Zealand of the common law doctrine of aboriginal title. Aboriginal title is a mechanism to preserve the pre-existing rights of indigenous people under their own laws. It is judge made law. In Australia, Aboriginal rights are A based on continuity of customary property rights upon the Crown's acquisition of sovereignty.</li> <li>So the judges in this case merely decided that the Maoris had a right to establish before the courts exactly what customary rights remained.</li> <li>From a resource use point of view this changed very little. The property right still had to be re-established. Resource use (in the form of exploitation of fishing or acqaculture resources) cannot proceed without first determining what the right is.</li> <li>From a property rights point of view the necessary conditions for exploitation involve exclusivity and transferability. The steps to establishing these conditions have not yet been taken.</li> <li>Exclusivity would mean giving right holders sole control over use of that right. Transferability would mean that the right could be transferred to others possibly in some market transaction.</li> <li>Any solution must address the issue of multiplicity and ranking of competing and non-competing rights. Can ownership be separated from use? Can access be granted without prejudicing either ownership or use?</li> <li>Expert witness Paul McHugh talks of a bundle of rights. McHugh postulated that Crown title to the foreshore did not mean that the Crown was recognised as having rights equivalent to full ownership � access, rights of fishing, navigation and innocent passge were recognised in common law. The result is that the Crown's rights in the foreshore and seabed, at common law, amounted to a 'bundle of rights' less than full ownership. This, it was argued, would lead in turn to the Crown not being in the position to grant anyone else full ownership in this view.</li> <li>The result of this line of argument is that no one has developed a theory of multiple rights for the foreshore and seabed where the different claims can be accommodated in some total construct.</li> <li>In effect, government legislation to nationalise the foreshore and seabed achieves a new ownership structure with the question of multiple access rights within it still unresolved.</li></ol> <h5>Questions</h5> <p>Are customary property rights outside current property law structures? <p></p> Will it take revolution and not evolution to changes these structures?<p></p> Is this a question of profound constitutional change and to be judged in that context?<p></p> According to Judge Wickliffe of the Maori Land Court "it is time to renegotiate the unwritten constitution of Aotea/New Zealand within the framework of the Treaty of Waitangi, so that government institutions can be realigned and legitimated".<p></p> So, what follows?<p></p> <h5>References</h5> <p>Report on the Crown's Foreshore and Seabed Policy, WAI 1071, Waitangi Tribunal Report, March 2004.<p></p> The Torrens Land Registration System and Customary Rights, by Robin Johnson, New Zealand Association of Economists, June 2004.<p></p> </body> </html>