WHOSE SAND IS IT ANYWAY?
Some might argue that granting foreign companies the right to mine New Zealand’s seabed is inappropriate while controversy continues over who really owns it.
It had been widely assumed since European colonisation in the 1840s that the Crown owned the nation’s seabed. This was partly done by arbitrarily applying UK rules here, and partly as an assumed extension of the rights gained when coastal land was legally acquired by settlers. But there have been continuing questions over this, especially in relation to the Treaty of Waitangi and especially where land may have been illegally acquired. Meanwhile, various legal decisions as well as government policy documents and pieces of legislation have recognised a range of customary rights for Maori in relation to the seabed and oceans. The controversy came to a head in 1997 when eight iwi of the northern South Island applied to the Maori Land Court to have the foreshore and seabed of the Marlborough Sounds designated as Maori customary land. The High Court then ruled that the seabed belonged to the Crown as of British common law. But in 2003 the Appeal Court ruled that it was up to the Maori Land Court to decide. However, the Government then stepped in and created the Foreshore and Seabed Act 2004. This reaffirmed Crown ownership, except where a group claiming customary rights had used an area of the public foreshore and seabed exclusively since 1840, and had held continuous title to the coastal land adjacent to it.
After widespread protests, and the decision by the Waitangi Tribunal that the Act was in breach of the Treaty, this Act was repealed and replaced with the Marine and Coastal Area (Takutai Moana) Act 2011. This removed the need for continuous title to the coastal land near the seabed in question, but at the same time restated that every mineral other than pounamu is owned by the Crown.
Since then those opposing the legislation attempted unsuccessfully to force a referendum on the issue, and the debate has become immersed and enmeshed with new controversy over the government asset sales and Maori rights regarding freshwater. It could yet re-emerge as a sticking point for seabed mining.