Rating the Sea

Lawrence HillSenior Lecturer

Faculty of Commerce

ITA 1 v NZL 1

When the Romans entered Britannia it was thought, by some, that the Britons typically lived in a pastoral age. They had not, generally, developed into an arable existence.

About a 1000 years later, approximately 500 to 600 years after the Romans abandoned Britannia, and William the Conquer landed there, Maori established colonies in New Zealand and continued with their hunter-gather existence and limited arable activities.

Some 600 years later the first Europeans began to ‘harvest’ the wealth New Zealand had to offer. Many whaling and sealing stations were established.

Later, in the early 1800’s the Europeans began to trade actively with Maori, and Maori established extensive trading activities with Britain.

Without the rule of law difficulties arose between European and Maori. Each probably as responsible for the troubles as the other.

In the absence of any Government, and with the potential that France would establish dominium over New Zealand first, the British Government took the lead and eventually settled New Zealand by treaty on 6th February 1840

A period of disharmony followed and, known as the New Zealand wars, much land was taken, both through acquisition and confiscation.

About 100 years after the end of these wars, in 1985, the Government undertook to extend the already established Waitangi Tribunal’s jurisdiction to, in effect, right some of the wrongs of the past.

Included in the process were policies of affirmative action whereby allocation of resources were made available to Maori. These include now allocating 20% of all new aquaculture areas to Maori.

In 2008 aquaculture contributed in excess of NZ$200 million to the export economy. In 2009 2,800 hectares of additional sea areas were made available for aquaculture.

However, whilst the allocation was established, the application process for the necessary licences to marine farm frustrated Maori attempts to invest in this industry.

Again, a clash between asserted cultural rights to the ‘sea’ and the bureaucracy came before the courts. In a landmark decisions, the New Zealand Court of Appeal determined that the seabed and foreshore must be considered land.

The effect of this decision was to empower the Waitangi Tribunal to investigate and make determinations as to the status of these areas of New Zealand.

The Court also discussed the concepts of imperium and dominium. However, unfortunately a clear delineation between the two concepts was not fully developed.

The Court raised doubt as to whether the Crown held dominium over the foreshore and seabed.

The Court considered that a residual right, superior to the Crown’s interest, subsisted when the Maori Chiefs ceded sovereignty to Britain in 1840.

Whilst no doubt could exist to the Crown’s absolute right to imperium, the Government, frustrated by the Court’s decision, and to avoid any doubt that the Crown had dominium over the foreshore and seabed, passed the Foreshore and Seabed Act 2004.

Noting also in the that the new coalition Government has announced that it intends to repeal this Act later, in August this year.

Baring in mind that these areas of New Zealand could now be considered land, it became logical to consider the wording of other land-based legislation as to the effect of this interpretation.

In terms of this, naturally we follow the money trail, in this instance were income is being derived from the foreshore and seabed, local authorities considered that rates should attached as a burden that industry.

However, notwithstanding the Court of Appeal’s finding as to the definition of land, the High Court, being inferior, has refused to consider marine farming as a rateable activity.

Therefore a disjoint has occurred. On the one hand the foreshore and seabed is available for consideration as ‘land’ before the Waitangi Tribunal, but not before the various Land Valuation Tribunals throughout New Zealand.

Also, should customary land be claimed, and farmed for aquaculture, then this many place Maori at an economic disadvantage.

The decision to claim customary rights over the foreshore or seabed should not be based on whether, in the interim period of time, economic activities can be gained from farming of this type.

This disjoint is twofold:

1.The lag in legislation to keep up with changes in technologies, in this instance marine farming activities.2.Lack of political will to address the demands of the Local Authorities desires to burden marine farms with rates.

Conclusions:1.Uncertainty exists as to the absolute ‘owner’

of the foreshore and sea bed.2.The lack of political will to make a permanent

determination as to the dominium over the foreshore and seabed has created disharmony.

3.Technology and marine farming practises has advanced ahead of the legislation.

4. The rating burden that traditionally follows alongside the factors of production is currently avoided by the marine farmers.

5. Whilst there is no significant direct cost to the Local Authorities for the not collecting rates on marine farming activities, the cost to the public is proportionally higher.