In the Marlborough Sounds case in June 2003, the Court of Appeal held that Maori customary communal title in areas of sea land (of foreshore and seabed) could exist at common law. Recently the Herald referred to that decision as "astounding" and many readers will infer that the decision was a judicial aberration. The inference would be wrong.In my estimation, property should not be taken at all -- full stop -- and on that I part company with the good professor; but on his point that the claims were made on a common law basis he is entirely correct.
As Michael Cullen has acknowledged in his 2005 Michael King Memorial Lecture (and elsewhere), that decision was correct... Maori claims to sea land are not based on the Treaty of Waitangi but on the common law that colonisation brought... [C]ustomary title is a species of legal property and should not be taken by Parliament without full compensation determined by an independent authority.
The purpose of the Foreshore and Seabed Act was to remove the opportunity to prove ownership of unowned tracts under a common law process. This is a right should not have been taken away. The Act essentially nationalised whatever property rights existed in foreshore and seabed, extinguishing forever the possibility of title to any part of them being recognised.
Turia's Bill would do us all a favour, and return that same common law right -- to prove ownership on a common law basis -- to all of us.
Brookfield expresses surprise that "it is conservative members of the National Party caucus who are reportedly against allowing Turia's Bill to go to a select committee," suggesting that "property rights usually have the strong support of conservatives."
There is material here, surely, that could properly be considered by a select committee. Radicals, liberals, and the conservative defenders of property rights alike should agree on that.He must be thinking of some other conservatives. He seems to forget it was this lot who introduced the Resource Management Act.
UPDATE: Questioned on this editorial in Parliament today, Cullen argued that despite the Foreshore and Seabed Act, anyone has right to go to High Court, and the Court says so the Crown must enter into "negotiations." Even if correct, it shouldn't need me to point out you the difference between this arrangement, and secure property rights.
LINKS: Time for a rethink on customary title - Emeritus Professor Jock Brookfield, NZ Herald
A debate on taking property for the public good - Not PC
RELATED: Property Rights, Politics-NZ, Common Law, Politics-Maori Party