2 September 2010

OPINION OF THE ACTING ATTORNEY-GENERAL

Marine and Coastal Area (Takutai Moana) Bill – Consistency with the New Zealand Bill of Rights Act 1990

1. I have considered this Bill for consistency with the New Zealand Bill of Rights Act 1990.
2. The Bill establishes a new statutory scheme for the recognition of customary title and customary interests in the marine and coastal area, in place of both the Foreshore and Seabed Act 2004 (FSA) and the pre-existing common law.
3. Because customary interests can be held only by Māori and because the Bill treats those interests differently from other categories of interest in land, notably private freehold titles, the Bill indirectly draws a distinction based on race or ethnic origin.  As that distinction involves greater, but also lesser, relative rights, it gives rise to a prima facie limit on the right to be free from discrimination under s 19 of the Bill of Rights Act.
4. In assessing whether that limit can be demonstrably justified in a free and democratic society under s 5 of the Bill of Rights Act, I have considered that:
   

4.1    The Bill provides both greater and lesser rights for holders of customary title relative to other categories of title;

4.2    The Bill seeks to reduce the cost, delay and legal uncertainty otherwise inherent both in the development of law governing customary rights and in the resolution of individual claims.  It also seeks to accord customary title holders certain rights, including rights in respect of resource management matters, that correspond to concerns expressed in consultation over the Bill;

4.3    The Bill also maintains existing titles and existing rights of access and use in the marine and coastal area.  In addition, and so as to promote economic activity, particularly in relation to infrastructure, minerals and land reclamation, the Bill accords the primary benefits of that activity to those undertaking it, rather than to the holders of customary rights over the area concerned; and

4.4    Most broadly, the Bill seeks a balanced and durable resolution of this issue, which has been marked by extensive discord over some years.  Importantly, the Bill reinstates some of the customary rights and interests that were extinguished by the FSA.  The preparation of the Bill has followed an extensive process of consultation with Māori and with other affected interests.

5. The Bill seeks a workable compromise between these various, and sometimes necessarily conflicting, interests.  The question of justification ultimately comes down to whether in light of all the circumstances, including the ongoing process of consultation and the various rights accorded to customary interests, the public and third parties, that compromise is reasonable.  On that basis, I have concluded that the limitation can be justified in terms of s 5.
   
   

ANALYSIS

The Bill

6. The background to the Bill is set out in Pākia ki uta pākia ki tai/Report of the Ministerial Review of the Foreshore and Seabed Act 2004. [1]
   
7. The law governing ownership of and rights to the marine and coastal area (previously termed the ‘foreshore and seabed’) has been highly contentious and divisive.  Until the Court of Appeal decision in Ngāti Apa, [2] it was widely believed that any Māori customary title to the marine and coastal area had been extinguished by various pieces of legislation, and in accordance with Re the 90-Mile Beach. [3]
   
8. In Ngāti Apa, the Court held that if there were pre-existing customary title interests in the foreshore and seabed, those interests had not necessarily been extinguished by subsequent legislation.  The Ngāti Apa decision was reversed by the FSA, which expressly extinguished any customary title.
9. This Bill repeals the FSA.  In its place, the Bill establishes a new legal framework through the establishment of the common marine and coastal area and the recognition of mana tuku iho, which is the mana-based relationship of iwi and hapu to the marine and coastal area in their rohe. [4]
   
10. The Bill follows an extensive process of consultation with Māori and with other affected interests, which is in part reflected by the additional rights provided under the Bill and, further, has indicated that exclusion of public access is thought unnecessary by at least some Māori representatives.
11. The stated purposes of the Bill are (cl 4(1)):

11.1    To establish a durable scheme to ensure the protection of the legitimate interests of all New Zealanders within the common marine and coastal area;

11.2    To recognise the mana tuku iho of Māori within the area;

11.3    To provide for the exercise of customary interests within the area; and

11.4    To acknowledge the Treaty of Waitangi.

12. The common marine and coastal area comprises all land, river and seabed, subsoil, water and airspace of the area between the high water mark and the limit of the territorial sea, other than that currently privately held or held by the Crown as a reserve or conservation area.
13. Within that area:

13.1    The common area will not, and cannot, be owned by anyone, including the Crown, and the Crown and public authorities are divested of any title held in the area.

13.2    Customary titles and rights that existed at common law prior to the FSA are reinstated and are to be recognised by way of agreement or court decision, in accordance with the criteria for recognition of those interests under the Bill set out in Part 4.  Once recognised, these interests are given legal expression through the procedures and statutory rights accorded by Part 3 of the Bill.

14. In particular, customary title in the marine and coastal area will be recognised under the Bill on the basis that while such title is an interest in land, it is given effect exclusively through certain statutory rights:

14.1    Subject to a number of qualifications, including for a range of infrastructure and minerals-related activity, the right to permit or veto activities requiring resource consent and conservation-related activities;

14.2    Influence over the content of central and local government planning documents, other than proposals essential for protection purposes;

14.3    Prima facie ownership of newly found taonga tūturu;

14.4    Subject to any existing right held by any other party and any subsequently derived rights, the right to non-nationalised minerals; and

14.5    Placement of prohibitions or restrictions over wāhi tapu.

15. Part 2 of the Bill provides for the continuation of a range of existing rights within the area, including ownership of roads, structures and minerals subject to the Crown Minerals Act 1991 and provides that resource consents, leases, licences and permits remain in effect.  Further, and other than in respect of wāhi tapu, there are general rights of access, navigation and lawful fishing provided by subpart 2. [5]
16. The Bill also provides for certain future rights of third parties to take precedence over customary interests.  In particular:

16.1    Where third party rights in respect of infrastructure, non-nationalised minerals or reclamation are applied for and granted after customary marine title is recognised, the Bill gives priority to the third party rights, but provides for certain compensation for the restriction or loss of that interest; but

16.2    Where third party rights are sought and/or granted before title is recognised, the Bill again gives those rights priority but does not provide a right of compensation.  In respect of minerals, the Bill provides for payment of royalties to the customary title holder, but these are based upon the return from the mineral activity, rather than the loss to the holder.  The point is important both because recognition of customary title interests does not create new rights, but instead recognises existing rights, and because permits or other consents may effectively limit or exclude any title claim.



Freedom from discrimination under section 19(1) of the Bill of Rights Act

17. Section 19(1) of the Bill of Rights Act affirms that everyone has the right to be free from discrimination on the grounds specified in the Human Rights Act 1993.  Those grounds include race and ethnic origin. [6]
    
18. The Bill treats those holding customary rights differently from the holders of other categories of title:

18.1    The Bill accords holders of customary title a range of statutory rights and protections, including greater and/or potentially greater rights in respect of resource management and other decision-making.  Customary title holders will not, however, have a general right of exclusive occupation – and so will not be able to exclude a range of activities by others, including public access and mining – and will not be able to sell their interests. 

18.2    Holders of existing non-customary titles will continue to have the rights of sale and of exclusive occupation, except as to navigation and certain rights of compulsory acquisition, such as for public infrastructure works.  Such holders will not, however, enjoy the additional resource management, conservation and mineral rights provided by the Bill.

18.3    With respect to non-nationalised minerals, customary title holders’ rights are subject to any third party rights held at the point that customary title is recognised and also to any subsequently derived rights, whereas holders of other categories of title are not subject to those third party rights.

19. At common law, customary title is effectively only able to be asserted by Māori.  The restrictions on recognition of customary title under the Bill therefore apply exclusively to Māori.  Where one category of interests in land is identifiable with a particular racial group, a potential issue of discrimination on the basis of race arises if that group is treated in a manner that is demonstrably less beneficial or more onerous than that which applies to comparable interests held more generally.
20. Given that the effect of these provisions is exclusive to Māori, the primary issue in terms of s 19 is whether there is a valid basis for comparison between the particular category of customary interests in land and other such interests: that is, whether the holders of other categories of title not subject to limitation under the Bill are properly comparable to the holders of customary title as it exists at common law. [7]
    
21. Customary title, as provided for in common law, is not directly equivalent to other categories of title to land.  In particular, inalienability is an inherent characteristic of customary title.  However, customary title does provide rights to the secure ownership of land that are comparable to other forms of title to land, as has been recognised by the High Court of Australia and the United States Supreme Court. [8]
    
22. The effect of the Bill, in substantially reversing the 2004 Act, is that the customary rights are reconstituted in statutory form but are then limited to a degree in their effect through the exclusion of any right to sell or to exclude a range of activities.  Such restrictions do not apply to other extant titles in the marine and coastal area.
23. Because inalienability is an inherent characteristic of customary title, no issue of different treatment arises in that respect.  However, while the Bill also provides for additional and significant governance rights for holders of customary title, it remains that the rights to land that they would otherwise enjoy are materially diminished by the requirement to yield to a broad range of activities by others while comparable freehold titles are unaffected.
24. This is an inherent disadvantage and, for that reason, a prima facie issue of discrimination on the basis of race in terms of s 19.
    
    

Is the prima facie limit demonstrably justifiable?

25. Where a provision is found to limit a particular right or freedom, it may nevertheless be consistent with the Bill of Rights Act if it can be ‘demonstrably justified in a free and democratic society’ under s 5 of the Act.
26. Following the guidance of the New Zealand Supreme Court decision of R v Hansen, the s 5 inquiry involves consideration of the following [9] :

26.1    Whether the limitation of the s 19 right serves a significant and important objective; 

26.2    Whether the limit is rationally connected to the objective;

26.3    Whether the limit is proportionate to the objective and, particularly, is within the range of options reasonably available to government. [10]

27. The broad objective of the Bill is to achieve a durable compromise between the interests of customary title holders, the interests of other affected or potentially interested parties and those of the public as a whole.  In particular, the Bill seeks:

27.1    To strike a balance between recognising customary rights while retaining access for the public and maintaining and promoting economic activity in respect of infrastructure, mineral activity and reclamation;

27.2    To achieve an effective and timely resolution of claims in an area that has been characterised by considerable discord and, in the proof of individual claims, by great difficulty and delay; and

27.3    To recognise customary interests through significant statutory and regulatory measures that reflect the importance of those interests.

28. These objectives are manifestly important.  The effective recognition of competing interests in the marine and coastal area and the reasonable resolution of claims to customary title or other rights are of significant social value.  I attach particular significance to the need to achieve an efficient resolution of disputes that have been prolonged and divisive.
29. Further, the differential treatment of customary title under the Bill is rationally connected to these objectives:

29.1    The limitation of the rights of customary title holders by the Bill corresponds to:

29.1.1    The maintenance of rights of public access to the marine and coastal area found to be subject to customary title; and

29.1.2    The continuing promotion of economic activity through infrastructure, reclamation and development of mineral resources.

29.2    More broadly, the limitation can be seen, together with the provision of additional regulatory rights in respect of customary title or other interests, to reflect the balance of interests provided by the Bill.

30. The remaining, and paramount, question in respect of s 5 is that of proportionality.  In that regard, it is material that the Bill does, as noted, provide both greater and lesser rights for holders of customary title relative to the holders of other categories of title. 

30.1    The Bill seeks to strike a balance between three distinct interests: customary rights, existing rights of use and, in providing for certain future rights of use, the promotion of public benefit through infrastructure development and economic activity.  This last respect is the most complex point.  As outlined above, the Bill provides for the holders of mineral and certain other rights to take precedence but makes differing provision for the payment of compensation to customary title holders.  Both the provision for certain future rights for mineral and other activity and the varied provision for compensation limit the rights of customary title holders.  The limits set by the Bill in turn reflect an assessment of the regulatory and commercial conditions necessary for continuing economic development. 

30.2    More generally, the Bill seeks to reduce the cost, uncertainty and delay otherwise inherent in both the development of law governing customary rights and the resolution of individual claims.  Customary title entails difficult and novel questions of law and the possibility of significant evidential and other practical difficulties. [11]  Law and procedure governing customary title has been criticised on this basis as undermining the rights of indigenous peoples. [12] Further, there is growing recognition that the formulation of balanced statutory regimes is a robust and enduring means of responding to such difficulties. [13]

30.3    Last, the Bill follows an extensive process of consultation with Māori and with other affected interests from early 2009 onwards and a still longer public and political debate and discord over this issue.  The importance of such a process has been stressed in particular comment upon this issue both by United Nations human rights authorities and by the Waitangi Tribunal. [14]

31. The assessment of the balance struck by the Bill is neither a straightforward nor an easy decision.  The Bill represents a series of compromises through which certain interests are necessarily given priority over others.
32. On the whole, the Bill strives to mark a clear path forward that balances the yet to be recognised, but longstanding, interests of Māori with the rights and interests of the general public and of individual landowners and holders of other rights.  It also represents the resolution of a longstanding issue that has entailed delay, strong division of opinion and attendant uncertainty.  I note in particular that this Bill reinstates some of the customary rights and interests that were extinguished by the FSA.
33. With that difficult balance in mind, I have considered whether the Bill is, ultimately, proportionate in its choice of means to achieve these goals.  I have, particularly, considered the trade-off between the recognition of longstanding customary rights and the promotion of public benefit through predictability and certainty, including as to obligations to afford compensation.  I also attach particular significance to the lengthy and full process of consultation that resulted in these proposals.
34. On balance, I conclude that the Bill falls within the scope of proportionate measures permissible under s 5 of the Bill of Rights Act.
35. The Bill is, in my view, consistent with the Bill of Rights Act.
    
    
    

Hon Simon Power
Acting Attorney-General

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Footnotes:

1. Ministry of Justice  (2009).
2. Attorney-General v Ngāti Apa [2003] 3 NZLR 643 (CA).
3. Re the 90-Mile Beach [1963] NZLR 461 (CA).
4. Mana tuku iho is an “inherited right or authority derived in accordance with tikanga” that recognises the “mana-based relationship of iwi and hapū to the marine and coastal area in their rohe” (cl 7 and explanatory note, 4).
5. The right of navigation also applies to the remainder of the coastal and marine area.
6. Human Rights Act 1993 ss 21(f) and (g).
7. See, for example, Quilter v Attorney-General [1998] 1 NZLR 523 (CA), 573 per Tipping J: “[t]he essence of discrimination lies in difference of treatment in comparable circumstances”.
8. Western Australia v Ward (2002) 213 CLR 1 at [105]; see also Mabo v Queensland (No 1) (1988) 166 CLR 186, 218-219.  The US Supreme Court has long held that aboriginal title “is as sacred as the fee simple, absolute title of whites” (Cherokee Nation v Georgia 30 US 1(1831)at 48 (per Baldwin J), and see also Beecher v Weatherby 95 US 517 (1877), 526; see also Committee on the Elimination of Racial Discrimination Decision 1 (66): New Zealand CERD/C/DEC/NZL/1, [6] and also the Committee’s Decision 2(54): Australia A/54/18 and Decision 1 (68): United States.
9. See R v Hansen [2007] NZSC 7, [2007] 3 NZLR 1 at [70], [123], [203]-[204] and [271].
10. See, for example, Hansen, above n 9, [119] per Tipping J:

“... in order to qualify [under s 5], the limitation must fall within the bull’s-eye. Parliament’s appraisal of the matter has the answer lying outside the bull’s-eye but still on the target. The size of the target beyond the bull’s-eye will depend on the subject-matter. The margin of judgment or discretion left to Parliament represents that area of the target outside the bull’s-eye. Parliament’s appraisal must not, of course, miss the target altogether. If that is so Parliament has exceeded its area of discretion or judgment. Resort to this metaphor may be necessary several times during the course of the proportionality inquiry; indeed the size of the target may differ at different stages of the inquiry.”

11. See, for example, R French “Native Title – A Constitutional Shift” (24 March 2009) 16-17 & 36, and P McHugh “New Dawn to Cold Light: Courts and Common Law Aboriginal Rights” (2005) NZLRev 485, 517-518.
12. See, for example, Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous Peoples: Australia A/HRC/15, 4 March 2010, 26[ff] commenting on the difficulty of customary title claims.
13. See, for example, Decision 2(54), above n 8, [21(2)]; McHugh above n 11, 531-532; and P Quig “Testing the Waters: Aboriginal Title Claims to Water Spaces and Submerged Lands – An Overview” (2004) 45 CdeD 659,691-692.
14. See Decision 1(66), above n 8; Concluding Observations of the Human Rights Committee: New Zealand CCPR/C/NZLR/CO/5 (2010); Waitangi Tribunal Report on the Crown’s Foreshore and Seabed Policy (2004) 144.  Some of the comments by United Nations authorities have suggested that such consultation must pursue prior informed consent, which has not occurred here and that principle is not accepted as applicable: see J Gilbert “Historical Indigenous Peoples’ Land Claims: A Comparative and International Approach to the Common Law Doctrine on Indigenous Title” (2007) 56 ICLQ 583, 608ff.