Foreshore as public space
There is further complexity to the issue of rights to the foreshore and seabed. The foreshore is a border land, where goods and people move between sea and dry land. It is pre-eminently a space for exchange and carriage. As early as 1608, Hugo Grotius, the Dutch jurist, addressing the law of nations using Roman sources, said with reference to sea and air: ‘that which cannot be occupied, or which never has been occupied, cannot be the property of anyone, because all property has arisen from occupation’. 1 Grotius did, however, recognise that inlets of the sea, the shore and fishing ponds might be enclosed from the sea and occupied as private property.
Open access in New Zealand
In New Zealand, the history of human interaction with the landscape began on the beaches (including the foreshore). In an island nation such as New Zealand, the seas conveyed human voyagers and migrants to its shore, and the foreshore and adjacent waters nourished settlement through fisheries and transoceanic trading routes. Parts of the coastline have an indelible cultural and historical significance. This may have created a general interest in public access to the areas linking dry land and sea, and made claims of ownership, whether from individuals or groups, Māori or non-Māori, contentious.
European New Zealanders also came to believe that one of the ways their country was distinguished from the old world was the open access to waterways, beaches and fisheries. The growing use of the beach as a site for public recreation from the early 20th century intensified the sense of the beach and foreshore as public space.
Public and private rights
How to reconcile particular claims to control of the foreshore with public or strategic interest in open access has been an ongoing challenge. However, apart from particular legislation or specific usage in an area, English common law held that there was no legally enforceable general right of public access to the foreshore from the landward side.
The Court of Appeal confirmed this situation in New Zealand in 1868 in a case about a provincially regulated landing service at the port of Timaru. There were public rights of navigation and of fishing. Any property in the seabed, for instance, whether fee simple (in permanent and absolute ownership) or not, remained subject to such rights. Yet the belief that the public have a legal right of access to the foreshore is actually a myth.
Equally mythological is the so-called ‘Queen’s chain’, said to be a 20-metre (or one chain) strip along the edge of waterways and coasts (and therefore above the high water mark or foreshore). This is believed to give a universal right of public access. Queen Victoria’s 1839 instructions to Lieutenant-Governor William Hobson certainly asked that places along the sea coast and navigable streams be reserved ‘for the recreation and amusement of the inhabitants’. But neither statute nor common law consistently established this as a universal right.
Public access has always been partial (about 70% of land abutting New Zealand's coast is in public ownership). Where it has been legally secured it has been predominantly via formed roads abutting the coastline, reservations of land from sale or other transfers of land, as well as various forms of reserve, such as road reserves and esplanade reserves.