Foreshore and Seabed Dispute

An important biblical principle is that breaking a treaty places a nation under a curse that will eventually be worked out in its history. What happened in the past will affect the future, if it is not dealt with. This principle is really important for understanding dispute over the seabed and foreshore in New Zealand

Although the Treaty of Waitangi signed in 1840 was a key founding document for New Zealand, there is no doubt that the promises of the Treaty were broken by successive governments. Under the treaty, the crown guaranteed Maori "full exclusive and undisturbed possession" of their land and other properties.

In the 1850s and 1860s, European settlers became frustrated, because they could not gain access to land they considered to be "waste land", but owned by Maori. Under pressure from frustrated settlers, the Crown engaged in a number of devious practices to alienate Maori Land. This culminated in the Land Wars that allowed millions of hectares of Maori land to confiscated. These breaches of the Treaty inevitably placed out nation under a curse, and we were starting to see the consequences.

I believe that the treaty settlement process being implemented over the last two decade has been really important for turning back that curse. Despite the many problems with the process, New Zealand started on the path of restitution that God mandates for breaking a curse that results from the breach of a treaty.

If those first steps of restitution had not been taken, there would have been severe consequences for our nation. In the 1980s many commentators were warning of violence between Maori and Pakeha and there seemed to be plenty of people who wanted to get started. I believe that these threats went away because we started on the process of repentance and restitution that God’s word requires.

Providing Maori with a just settlement for earlier breaches of the treaty is proving to be incredibly difficult. The Crown should not add to the problem by breaching the treaty again, just because voters are anxious about losing access to the beach. We should be very careful that we do not add new injustice, before we have resolved the previous ones. This makes me very concerned about the current proposals for the foreshore and seabed.

The government has suggested that four principles should govern the foreshore and seabed. These principles are:

• Access
• Regulation
• Protection
• Certainty

I propose a different set of principles to govern the process. These principles are:

• Rule of law
• Integrity
• Consultation
• Divine sovereignty
• Generosity
• Stewardship
• Trust

These seven principles will be explained in the following sections.

The first principle is the rule of law. I believe that the Court of Appeal made a good decision over the foreshore and seabed. The Treaty of Waitangi, the Crown guaranteed Maori "full exclusive and undisturbed possession of their lands and estates, forests, fisheries and other properties". While there is debate about the meaning of some aspects of the treaty, this part is very clear. Maori were guaranteed continued ownership of all their property. There were no limits around this promise. The seabed and foreshore were not excluded.

The treaty did not give Maori possession of their land and fisheries, but guaranteed an ownership that already existed. The Crown did not create Maori property rights. Rather it acknowledged property rights that already existed when the treaty was signed.

Maori held title to much of the seabed and foreshore, before Europeans came to New Zealand. If they have not sold or given away their property in the seabed and foreshore, then that title is still valid. If it has not been voluntarily and legally exhausted, the treaty guarantees their possession of that property. Therefore, Maori are entitled to test their ownership of the foreshore and seabed in the legal system.

The legal process recommended the Court of Appeal should be left to run its course. There is no need for the government to rush in with a change to the law.

The best opinion is that only a limited part of the foreshore and seabed would pass into Maori ownership. We should keep this in perspective. Maori would probably own a smaller share of the foreshore and seabed than is currently controlled by non-Maori private owners. If public access does become an issue, we should deal with the problem when it arises.

This principle means that when a government leader makes a binding covenant it must be honoured. Therefore, honouring the treaty is more important than access to beaches. This issue has become so big, because New Zealanders are concerned about access to their beaches. Although this may be a concern, it does not justify a breach of the treaty.

An important biblical principle is that even if a treaty was agreed foolishly, it cannot be abrogated. Joshua was foolish making a treaty with the Gibeonites, but he was bound by God to honour it (Joshua 9, 2 Samuel 21).

Allowing Maori to take their claims to the Land Court may result in some hapu or iwi establishing ownership of some New Zealand beaches. If this creates a problem for other New Zealanders who love going to the beach, it suggests that the Crown did not think through all the issues before signing the treaty. Hindsight is easy, but it does justify a breach of the treaty.

The starting principle for the Labour Government’s is that public access to the beaches must be ensured.

all New Zealanders have the right to reasonable and appropriate access across the foreshore and seabed (para 76).

Maintaining kiwi access to beaches is seen as a fundamental right that protecting other rights must be fitted around.

The problem is that a right of "public access" cannot be the starting point to a solution. Any solution must begin with the treaty, because without the treaty, the Crown would not be in a position to assign any rights. Therefore, there is no place for a higher principle of general public access. Rather, we must start with the treaty and determine how the treaty should be implemented in this situation.

Article 2 of the treaty allows the Crown to purchase land from Maori; it does not allow the Crown to pre-empt land by legislation. If New Zealanders want free public access to the beaches, the Crown should purchase that land from Maori owners as agreed in the treaty.

If the government passes legislation that extinguishes Maori ownership of the foreshore and seabed, a breach of the treaty will occur. This could place our nation back under the curse, just as we are starting to break its power.

Most New Zealanders do not understand that God requires treaties to be honoured. However, Christians should have a different perspective. We understand the importance of words and the holiness of covenants. We serve a God who keeps his word and expects us to do the same.

The Maori way is to talk problems through until a solution is reached. If there is disagreement, more time should be taken. In this case, the consultation did not produce consensus and now the government seems to intent on pushing its legislation through, despite the strong opposition from Maori.

Article 2 of the treaty states that Maori possessions can only be preempted on terms that the buyer and seller agree. By failing to get Maori agreement to the proposed legislation, this article is being breached. Not surprisingly, Maori feel that their possessions are being preempted without their agreement. This is adding to a long history of the Government deciding what is best for Maori, without consultation.

The nation needs to do a lot more talking, listening and thinking about this dispute. Getting Maori agreement on any proposed solution is essential, but it will require more negotiation and discussion. Forcing through legislation will only create disharmony. Leaving the situation uncertain would be better than bulldozing through an unacceptable solution.

I am really concerned by the widely held view that the Crown has authority to take land that is legitimately owned by individuals or groups of people. The role of the State is to protect the life and property of its citizens. The crown should be protecting people and their property. The State that assumes it can deprive citizens of title to their land to meet the needs of another interest group in society has become very dangerous.

This is an issue of sovereignty. Behind the desire for the state to legislate to protect access to the seabed and foreshore is a view that the state has absolute sovereignty over everything. In this view, there are no limits on its power. Modern democratic governments believe they can legislate whatever law can be passed through Parliament. This view is popular but incorrect.

The civil government does not have absolute sovereignty. God created the earth (Psalm 121:1), so he alone has absolute authority (Psalm 47:2,7). The state has a limited authority that has been delegated to it by God. It does not have unlimited authority, but is a servant of God (Romans 13:1). The main role that God has delegated to the state is to protect the life and property of its citizens (Romans 13:4). It does not have authority to take the property of one person to make it available to another group.

Moving the stones that mark out boundaries between properties is a crime, because it is a form of theft (Deut 19:14). The civil government has coercive power to punish theft. When the civil government uses that power to change property titles (moving ancient boundary stones), it has lost track of its purpose. The scriptures teach that people who unlawfully remove boundary stones, places themselves under a curse (Deut 27:17). If the government does this in the name of the people, it places the entire nation under a curse.

Suggesting that the State has power to arbitrarily change property rights is very dangerous. People who want the Crown to extinguish Maori ownership of the seabed and foreshore should stop and think. A government with unlimited power and absolute authority has become god that should be feared.

A principle of generosity is demonstrated in 2 Samuel 21. David allowed the Gibeonites to decide what restitution should be made. He agreed to give what they asked for, with only once exception. He spared Mephibosheph because he was Jonathan’s son. David demonstrated a generous spirit.

The principle is that during a time of restitution the dominant party should act very generously. This is very important in our situation. Over the last 150 years, the crown has treated Maori badly and Pakeha have benefited by being the dominant race. For the next few decades we need to act generously, to restore our credibility. We should not be stingy in our solutions.

The proposal legislation is miserly towards Maori. The aim seems to be to give Maori, the bare minimum that the treaty requires. I would like to see the Crown demonstrating a more generous spirit. The proposals of some other political parties are even worse, but a minimalist solution will result in Maori being dissatisfied into the future.

God created the earth, so he alone has absolute title to the land. "He sets the boundaries of the people" (Deut 15:25). "The earth is the Lord’s and everything in it" (Psalm 24:1). We hold title to land in a trust from him. Therefore, under God’s law the land cannot be sold, because we do not actually own it.

All we can sell is the produce of the land for a specific number of years. The price varies according to the number of crops that are being sold (Lev 25:14-17). This means that in economic terms, the landowner has a lease from God in perpetuity, not full ownership. Absolute ownership remains with God.

Authority always comes with responsibility to God and others. This means that we have stewardship of the land to which we hold title, rather than an absolute right to do what we like with it. We can use the land, but we must do so responsibly.

Landowners must not exploit land for their own selfish interests but care for it as stewards of God (Genesis 1:28-31). Those who abuse or exhaust the land will have to give account to God. Good landowners will nurture their land and use it wisely. This is much closer to the Maori view of land ownership than the Western view.

Owners also have a responsibility to give other people reasonable access to their land where this is appropriate (Matthew 12:1-8). One example of this is gleaning. Landowners are required to allow poor people on to their land to gather the wheat that has been left by the harvesters (Lev 19:9; 23:22). However, these rights were not enforceable by the government, they were based on the good will of the landowners.

Maori culture also requires landowners to be generous with access to their land. Therefore, it is not surprising that most restrictions on beach access are made by non-Maori private landowners.

The only reason for not allowing ownership of the foreshore and seabed to go to Maori seems to be that we do not trust them. The implication is that they will not use it wisely. This is very sad, as they have had to trust Pakeha for many years.

When the European settlers came to New Zealand with their overwhelming numbers and force, Maori had no option but to trust their good will. That trust was often betrayed. The foreshore and seabed offers the people of New Zealand an opportunity to trust Maori. We might find that they handle trust better.  I would like to give them a chance.