Hobson's Pledge gets wrapped up in its own nonsense

Did the NZ Herald get it wrong too?

A full-page wraparound advertisement in the NZ Herald, paid for by the Hobson’s Pledge interest group, greeted readers with the following words:

“Restore the Foreshore and Seabed to Public Ownership.”

“Most Kiwis have no idea that almost New Zealand’s entire coast is currently under application before the courts to be awarded to iwi as customary marine titles.”

The ad invited readers to visit a website and sign a petition.

This caused a storm of controversy, including claims that the Herald should never have published the ad. So I’ve looked up the facts.

The ad demanded that someone should “restore public ownership”. But New Zealand’s foreshore and seabed have never been in public ownership. Instead, there’ve been two conflicting views:

1. English common law presumed that the foreshore and seabed were owned by the Crown (the government, in effect), although parts of it could be granted to others for their use. The public would have free access to most beaches, but not all. Coastal farms with riparian rights, for instance, effectively blocked public use of some beaches above high-water mark.

2. Māori customary law recognised the uses of land under water for bringing in canoes, recreation, fishing, battles, burials and collecting seaweed. But this wasn’t always recognised by the Crown.

In reaction to a decision of the Court of Appeal that opened a door to claims to foreshore and seabed, the Clark government passed the Foreshore and Seabed Act 2004. It asserted the Crown’s ownership of the foreshore and seabed (except where privately owned), and rights of public access.

This caused protest by Māori who saw the Act as another confiscation of their land.

Arising from the 2008 confidence-and-supply agreement between the National and Māori parties, the Marine and Coastal Area (Takutai Moana) Act 2011 repealed Labour’s 2004 Act.

This new law started with a clean slate:

“Neither the Crown nor any other person owns, or is capable of owning, the common marine and coastal area”. (Section 11).

Now no one owns it. So there!

But this did not remove customary interests in, and lawful uses of, the common marine and coastal areas, or the granting of resources consents, etc.

Local iwi could apply to a court for recognition of customary rights or customary marine title over a particular area. But this wouldn’t override other existing rights and uses, for example public access, boating and fishing.

Customary marine title may exist in a common marine and coastal area if an applicant group “holds the specified area in accordance with tikanga” and has “exclusively used and occupied it from 1840 to the present day without substantial interruption” – with allowance for instances of the transfer of such rights since 1840. (Section 58).

There’s legal argument that sometimes the courts are going too far in granting customary marine title, but these are complicated case-by-case issues. But the coalition agreement between the National and NZ First Parties says: “Amend section 58 of the Marine and Coastal Area Act to make clear Parliament’s original intent” in light of a finding in the Court of Appeal in 2023.

Law firm Simpson Grieson have published a summary of that judgement, including the following general explainer:

Customary marine title (CMT) “is a non-alienable territorial right compared to a participation or usage right. A group that holds CMT over a specified area does not have the right to exclude people from that area (unless the area is a wāhi tapu area [sacred place]). They do, however, have rights such as the ability to derive commercial benefit from exercising rights, the right to create planning documents, rights in relation to the New Zealand coastal policy statement, and permission rights in relation to resource consents in the CMT area.”

It is not the case that “almost the entire coast is being awarded to iwi by the courts”, to paraphrase the Hobson’s Pledge ad. For the unsuspecting reader, the ad made it sound as if the courts are granting “ownership” of the foreshore and seabed to local iwi, and hence “ownership” should be “restored” to the public (who never owned it in the first place).

Reminiscent of Don Brash’s 2005 Iwi/Kiwi billboards, the Herald ad is politically motivated, deliberately divisive and misleading. It grossly over-simplifies a complex set of issues that differ from place to place.

The Advertising Standards Authority’s Code states that “advertisements must be truthful, balanced and not misleading.” This protects us from unscrupulous advertisers.

The Hobson’s Pledge ad does not meet that ASA standard. The Herald should not have published it. A refusal to publish would not violate anyone’s free speech, as Hobson’s Pledge are free to publish misleading statements on their own website.

To give the Herald a break, they’ve since published a balanced article on the matter by Shayne Currie. Don Brash is quoted, arguing that the ad said nothing untrue. My assessment is that it’s misleading – to a degree that, in effect, it’s untruthful. In their attempt to shape public opinion through misleading statements, Hobson’s Pledge have further damaged their own credibility.