The Public Domain: Who Will ”Own” the Foreshore?

Listener: 1 May 2004.

Keywords: Environment & Resources; Maori;

Property rights – the rights to use, transform and transfer (sell) a resource – is a better term than “ownership” because there are so many aspects to them and different groups can share the rights. An effective market needs a clear and comprehensive definition of those property rights. The economic reforms of the 1980s clarified many. Sometimes the outcomes were paradoxical. The largest ever nationalisation in dollar terms was by Rogernomes, for the government first had to own State Insurance before it could privatise it. But property rights continue to trouble us.

Thus, it is with the foreshore and seabed. It was obvious that there is an ambiguity over its ownership, but we muddled along with misunderstandings and ad hoc decisions. Affected by an English heritage, we assumed that somehow the foreshore and seabed were in a public domain, which gave us all a practical right to use the beaches, albeit we were restricted from (permanently) transforming them (with bach or fish farm) without permission, and we were certainly not entitled to transfer them to anyone else.

No doubt, if pushed, the judges could have created legal rights from the common (ie, the judge-made) law. Last year’s Court of Appeal did not. Rather, it said that local Maori may have some (customary) rights, which the Maori Land Court could help identify. That does not address the entirety of the ownership – who has the various rights to use, transform and transfer. I have written on “Maori” rights already (Rightful Owners 23 August 2003), so, briefly, this is not England and we (the public or the Crown) have no time immemorial claim to property rights in the beaches.

Do Maori? They claim it through the rangatiratanga (second article) provisions of the Tiriti o Waitangi, although some have told me they are less enthusiastic if it meant they got their local foreshore, but were restricted from the beaches where other iwi had the rights. But, if we ignore Maori claims to their private property rights, then either the government has the right to nationalise any private property without compensation or, if it confines itself to expropriating only Maori, it is racist. I have been surprised at the silence of the political right on this central issue of the protection of private property rights.

Parliament could legislate the foreshore and seabed into a public domain, with the Crown as the trustee responsible for its management and regulation. Current customary users – Maori and everyone – would continue, but there would be restrictions on new uses and transfer would be prohibited. If at any future time any property rights were to be commercialised, the Maori would claim the proceeds from the commercialisation. That would discourage the Crown alienating the foreshore, since it would get no financial benefit. In my view, until the asset is commercialised, the ranga-tiratanga provisions cover only customary usage and kaitiaki (guardianship).

However, for legal and political reasons, the foreshore is not being placed into a pure public domain. Instead, it will be a Crown Asset, a concept made rigorous in the 80s as part of the systemisation of property rights. Unfortunately, it is associated with the notion that the Crown should be administered as a private household without concern for the wider public interest. The Rogernomes might say that running the Crown as a selfish household was in the best public interest, unable to see that sometimes the immediate interest of the Treasury was not in all our interests. Practically, this led to the major privatisations of the 80s and 90s, despite widespread public objection. Could making the beaches Crown Assets lead to their privatisation?

Parliament can do just about anything (with the possible exception of seriously debating a difficult problem), so we cannot be sure that it would never sell our beaches. Even so, such assets should not sit in the Crown Accounts as if they could be sold off. They are being held in trust for our use, and limited transformation, and certainly it is not our (Maori and Pakeha) intention that they can be alienated. There are other heritage and cultural assets in the Crown Accounts that are equally precious, and equally inalienable: our national parks, heritage buildings and archives, the collections in Te Papa and the Alexander Turnbull Library – even the Treaty documents.

What may come out of the foreshore and seabed changes is a different form of Crown ownership, in which the Crown is the trustee for the management of assets which are for our and future generations’ enjoyment. Let’s make sure that the assets in our public domain are inalienable, irrespective of whether they are in the Crown Accounts.