BBC Worldwide Radio recently sought our comments in relation to the recent Court of Appeal decision regarding the foreshore and seabed.

Chairman of Partners, James Johnston, was interviewed live by breakfast radio host Rod Sharp to a worldwide audience on BBC Radio.


BBC (Radio) 5 Live

Interviewer: Rod Sharp (“RS”)
Interviewee: James Johnston (“JJ”)

RS: The Government of New Zealand is trying to prevent indigenous Tribes from claiming exclusive ownership of the country’s coastline and it’s seabed. The Maori’s claim the Waitangi Treaty which is the founding document of modern day New Zealand actually entitles them to any land or coastline that they want. James Johnston is a Treaty lawyer in Wellington and he joins us. Hello Mr Johnston.

JJ: Kia ora Rod

RS: Now tell us about the Treaty. What does the Treaty actually say, that the Maori people are entitled to?

JJ: The Treaty of Waitangi was a document that was signed in 1840 between the Crown and individual Maori Chiefs. It is a very short document. It consists of a preface and three reasonably short articles. The difficulty is that we have got two versions. One was in English and one was in Maori and of course there is still some dispute regarding the interpretation. Essentially the first article is deemed to have ceded sovereignty or a word that Maori describe as kawanatanga or governorship to Queen Victoria. Now of course in return for that cessation of sovereignty there were certain things that were guaranteed to the Maori Chiefs at the time and this related to what’s described as their full Chieftainship and authority or the phrase is the full exclusive and undisturbed possession of their lands, estates, fisheries and other properties that they may have collectively or individually possessed at that time, so long as they wish to retain them.

RS: Ah huh

JJ: So that’s the second article

RS: This is what the Treaty says?

JJ: This is what the Treaty says yes.

RS: I mean there was a lot of, I’m definitely/desperately trying to remember why we’re still interested in the Waitangi Treaty a few years ago but there was an awful lot of activity about it, back about 4 or 5 years ago wasn’t there?

JJ: What has essentially happened, and I suppose it depends on which perspective you’re looking at it from. From a Maori or claimant perspective, what has occurred is that there have been criticisms that the Treaty has been breached and perhaps not necessarily honoured as much as it should have been honoured. The Waitangi Tribunal which was set up in 1975 to look into some of the breaches or alleged breaches and grievances had started to issue a number of reports and of course that has lead to a rather significant body of Treaty jurisprudence.

RS: And is this what this is coming from?

JJ: Well interestingly the most recent Court of Appeal ruling which was handed down by the New Zealand Court of Appeal late last week, is slightly different. The Court of Appeal, and it was a unanimous decision including our Chief Justice Dame Sian Elias ruled in relation to a matter which had initially come from the Maori Land Court. What had happened at the Maori Land Court was that a small number of iwi, I think there was about 7 iwi or tribes had actually brought an application to the Maori Land Court regarding whether or not certain land comprising the foreshore and seabed in their local area was actually customary Maori land. Now that matter went to the High Court in New Zealand and the High Court said no the Maori Land Court does not have jurisdiction. But what’s created the stir, or most recent controversy I suppose is that our Court of Appeal has unanimously said that the Maori Land Court does actually have jurisdiction to determine the status of the foreshore and the seabed. So what’s happened as a result of that decision is that it would be fair to say that a bit of a hornets nest has been stirred up and there has been a reasonably swift response from the Government in relation to that decision.

RS: Would the Maori, if they got this, would they be able to stop people from going to the beach? Like fishing?

JJ: Well there are a number of uncertainties here. Because really at the end of the day what the Court of Appeal has said is that they are not agreeing that there is actually a right there. That’s my understanding of the decision. What they are saying is that the Maori Land Court does have jurisdiction to actually hear these individual applications. Of course it’s by no means given that these applications will be successful. The individual tribes who would make the applications would have to establish on the facts and they would have to present evidence which would satisfy the Court, that’s the Maori Land Court, that they can take matters further. But of course I think that the Government perspective here, is that there may well be a lot of uncertainty and some of the issues that you raise are perhaps what the Crown is trying to alleviate straight away. Of course by suggesting legislation, which is what they’ve done and of course it is something that has occurred very quickly. We got a decision out late last week, I think it really only hit the media on perhaps Friday of last week in New Zealand and almost instantaneously the Prime Minister and the Attorney General have indicated that legislation is being looked at by the Crown to try and sort the matter out.

RS: I think we’ll hear more about this Mr Johnston. Thanks very much indeed.

JJ: Thank you.