WHOSE SAND IS IT ANY­WAY?

Element - - News -

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.

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