Rating the Sea

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Rating the Sea

• Lawrence Hill
• Senior Lecturer
• Faculty of Commerce

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• ITA 1 v NZL 1

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• 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.

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• 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 1800s the Europeans began to
  trade actively with Maori, and Maori established
  extensive trading activities with Britain.

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• 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

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• 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 Tribunals
  jurisdiction to, in effect, right some of the
  wrongs of the past.

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• 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
  NZ200 million to the export economy. In 2009
  2,800 hectares of additional sea areas were made
  available for aquaculture.

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• 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.

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• 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.

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• 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 Crowns interest, subsisted when
  the Maori Chiefs ceded sovereignty to Britain in
  1840.

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• Whilst no doubt could exist to the Crowns
  absolute right to imperium, the Government,
  frustrated by the Courts 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.

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• 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.

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• However, notwithstanding the Court of Appeals
  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.

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• 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.

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

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• Conclusions
• 1. Uncertainty exists as to the absolute owner
  of the foreshore and sea bed.
• 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.

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• 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.

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