Right to customary title key to foreshore agreement

03:54, Jun 19 2010

Maori have won the right to seek customary foreshore and seabed title – which would bring benefits similar to freehold title rights – after reaching a historic accord with the Government.

The deal includes commercial development rights and veto over other developments.

Iwi leaders and the Maori Party emerged from talks with Prime Minister John Key yesterday to announce agreement on a proposal to replace the 2004 Foreshore and Seabed Act by the end of the year.

The deal is, in effect, the same as one the Government presented as its preferred option in April – the foreshore and seabed will be owned by no-one, but iwi can seek rights, including customary title.

Customary title was prevented by the 2004 act, which put the foreshore and seabed into Crown ownership.

The Maori Party welcomed the deal, which will achieve its goal of repealing the 2004 legislation, but made it clear the Government's refusal to consider other forms of ownership remained contentious.

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The party and iwi leaders had sought a form of Maori ownership, and co-leader Tariana Turia said there was concern among Maori about what public domain meant.

"But we have been given an assurance that [customary title and customary rights] will be as sacrosanct as any other rights or title."

Co-leader Pita Sharples said significant property rights would flow from findings of customary title, which he described as a "full-blooded title" similar to fee simple, or freehold title.

The only new factor in the final package is an overarching recognition of the interest of hapu and iwi in the foreshore and seabed – dubbed "universal recognition" – which will require iwi involvement in conservation projects.

Attorney-General Chris Finlayson said he hoped to introduce new legislation by August. He also moved to pre-empt any public backlash, saying reports that giving customary title would allow iwi to undertake such developments as hotel complexes on beaches were wrong and resource consent rules would apply as for any development.

Iwi Leaders Group representatives Mark Solomon and Tukoroirangi Morgan said yesterday that they were now largely satisfied, although they had not received everything they wanted. Mr Solomon, the Ngai Tahu chairman, agreed with Mr Key that only small tracts of the foreshore and seabed would meet the tests for customary title, but said iwi and hapu would have greater scope for other rights to be recognised.

The Government had also said iwi with customary rights would be able to benefit from non-Crown-owned minerals such as ironsands.

EXISTING LAW AND PROPOSED LAW

The Foreshore and Seabed Act 2004

Foreshore and seabed owned by the Crown.

Iwi and hapu can negotiate a settlement with the Crown which includes rights ranging from continuing traditional practices to co-management and development rights.

No opportunity to seek customary title in court although those with links akin to customary title get higher level rights.

Test for highest level of rights requires continuous ownership, occupation and use of adjacent land since 1840.

Public access guaranteed.

Foreshore and seabed owned by no-one.

Iwi and hapu claim customary title through High Court or negotiations with the Crown.

Weaker test for customary title – no need to show continuous ownership, though occupation and use since 1840 still applies.

Customary title carries development rights for iwi provided they meet usual resource management rules.

Right to veto other developments or conservation projects.

If they fall short of full customary title can still have customary rights recognised such as traditional practices and sacred sites.

New "universal recognition" recognises longstanding mana of iwi over foreshore and seabed and gives role in conservation projects.

Public access guaranteed and fishing and navigation rights protected.

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