Ewan Morris: Goldilocks And The Four Shores

Once upon a time there were three bears: Mama Pea, Papa Pea, and little Pepi Pea. They lived in a beautiful, spacious house in the middle of the woods.

One morning they went out to look for berries to flavour their porridge, leaving the steaming bowls of porridge on the table. While they were out, a girl called Goldilocks happened upon their house, went in through the open door, and made herself at home. She sampled their porridge, eating up all the porridge in Pepi Pea’s bowl. She sat on each of their chairs, and Pepi Pea’s chair broke under her weight. And she lay down on each of their beds, finally falling asleep on Pepi Pea’s bed, which was not too high, not too low, not too hard, not too soft, but just right.

When the bears came home, startling Goldilocks out of her sleep, they were initially shocked to find the blond-haired stranger in their house. But they admired her pluck and her initiative, and they thought they might benefit from further contact with this girl and others like her. For her part, Goldilocks had fallen in love with the bears’ lovely home and did not want to leave. But she could see that she was outnumbered, and she eyed the bears’ sharp claws warily.

So they made an agreement that they would share the house, and that Goldilocks could even bring some of her family to live there too. The house had a number of spare rooms, and it looked like there would be plenty of room for all of them. At first things went well: the bears taught Goldilocks and her family how to make their tasty and nutritious porridge, while Goldilocks’s older sister, an expert furniture-maker, showed the bears how to build a stronger chair to replace the one Goldilocks had broken.

As time went on, however, more and more of Goldilocks’s relations kept arriving. Soon they had taken over the house, and the bears had been forced to retreat to the little shed out the back. Then Goldilocks and her family began chopping down the surrounding trees to make more houses, and the bears could no longer gather berries for their morning porridge.

The bears tried to talk to Goldilocks about what was going on, and about the agreement they had made to share the house. But Goldilocks replied that things had moved on, and the agreement was no longer relevant. What’s more, she would no longer talk to the bears in their own language, forcing them to communicate in halting English.

Saddened and frustrated, the bears took refuge in their little hut, watching as the forest was cut down around them. They continued to hope that one day Goldilocks would see that what she had done was just not right...

For Goldilocks’s great-great-great-great-grandchildren, the house which once belonged to the bears has always been home. They have grown up side by side with the descendants of Pepi Pea, who are still living in the shed out the back. Both families love the old house, and both love to eat porridge. But the bears continue to feel a keen sense of injustice about the loss of the house that was once theirs. They continue to call on their neighbours to honour the spirit of the original agreement between Goldilocks and the bears.

Of course, the history of interaction between Maori and the descendants of more recent settlers is much more complex and ambiguous than the simple story of relations between Te Whanau Pea and the Goldilocks clan. The debate about the foreshore and seabed which has raged since the Court of Appeal decision in June last year is particularly complicated, and I have no simple solutions to propose. I accept that the government is in a difficult position, although I think it should have been better prepared for the possible outcome of a case which, far from coming out of the blue, had been making its way through the courts for years. Political reality requires the government to placate the Pakeha majority as well as taking steps to protect the interests of the Maori minority. The desire of Pakeha to ensure that they continue to have access to the beach is reasonable, even though such access has never, in fact, been under threat.

What concerns me about the response of the government and of many Pakeha, however, is that they seem to be ignoring the point made, however simplistically, in my story of Goldilocks and the bears. When Pakeha arrived in New Zealand, Maori owned the entire country, as the colonial authorities (after some wavering in the 1840s) fully acknowledged. This ownership clearly included the foreshore, which Maori used extensively, and at least some parts of the seabed. A century after the signing of the Treaty of Waitangi, however, only a small fraction of the land remained in Maori ownership.

The history of Maori land loss is not a simple story of victimisation of Maori by evil, grasping Pakeha. But the overall effect of colonisation has been very much like what happened to the bears in my little fable. Maori were left largely landless, marginalised and outnumbered in their own country. They were disadvantaged by being forced to play by someone else’s rules and, moreover, the rules were changed when it suited the colonisers to do so.

This is what needs to be borne in mind when considering rights to the foreshore and seabed. Many Pakeha seem to think that Maori already have a lot and now they ‘want it all’. ‘Where will it all end?’, they ask. The reality is that Maori have got back very little of what they lost. Most Maori are realistic enough and reasonable enough to accept that, not only will they never get back all that they once had, but they will never get full compensation, equivalent to the total value of their losses, either.

Claims to the foreshore and seabed are not another greedy land grab by all-powerful Maori, as some Pakeha appear to believe. They are an attempt by groups of Maori to use the court system to demonstrate that, in particular areas, Maori rights to the foreshore and seabed were never extinguished and are still in existence. In other words, they are not about creating new rights but about recognising property rights that, it is argued, have never been extinguished.

For a long time the Crown has been assumed to own the whole of the foreshore and seabed (apart from a few areas in private ownership), but the fact that it was assumed for so long does not make it right. The Court of Appeal ruled last year that the Crown’s assumption was wrong. Consequently, Maori could take claims to the foreshore and seabed to the Maori Land Court, although it was by no means certain that such claims would succeed.

The Crown responded, as it has so many times in the past, by changing the rules. The new rules have now been spelled out in the government’s Foreshore and Seabed Bill. Maori will lose the ability to claim ownership of areas of foreshore and seabed before the Maori Land Court. Instead they will be able to have their ‘ancestral connection’ with, and ‘customary rights’ relating to, the foreshore and seabed recognised. It is not clear that this will give them many rights that they do not already possess under existing laws. To receive such recognition they will have to demonstrate an unbroken connection with, or substantially uninterrupted exercise of customary rights in, an area of foreshore and seabed since 1840 (an arbitrary date which does not allow for the development of rights in accordance with tikanga Maori after the signing of the Treaty, particularly through the gifting of land).

One of the most troubling features of the Bill is that, even if Maori demonstrate before the High Court that they have ‘territorial customary rights’ which, but for the passing of the foreshore and seabed legislation, would have amounted to exclusive occupation and possession of an area of foreshore and seabed, they have no right to receive compensation. All they are offered is the prospect that the Crown may (or may not) provide unspecified ‘redress’.

The failure even to require that Maori are compensated if the new law takes away their property rights suggests that the government is giving insufficient consideration not only to the Treaty of Waitangi, but also to the history sketched out above. Maori have already lost so much, surely the very least they can expect is that they should be fully compensated when the Crown confiscates yet more of their property?

It is not for me to say what kind of resolution of the foreshore and seabed issue is likely to be acceptable to Maori. Inevitably, there will be a wide range of views within Maoridom in any case. I am not proposing any particular solution, but I do think we need to take more time to talk the issue over. It is worth remembering that it has been less than a year since the Court of Appeal decision. A lot has happened in that time, but it is not very long to have spent grappling with an issue of such importance for all New Zealanders.

I suggest that the government needs to take the time to really listen to the concerns and suggestions of Maori and non-Maori alike. We need to have what the Waitangi Tribunal, in its foreshore and seabed report, calls a ‘longer conversation’, not about a set of government proposals, but about all the available options. Perhaps this conversation should also take place at the local level, away from the heat generated by competition between political parties on the national stage.

No matter how long the conversation continues, we will never find a solution which is just right. Any solution is likely to leave some people feeling that the outcome is too hard, or too soft. But if we cannot find a solution which is just right, our guiding principle should be to try to find one which is just. A just solution cannot be one which dispossesses Maori and gives little of substance in return, particularly in light of the extent to which Maori have already been dispossessed.

Since real life is not a fairy tale, we will not live happily ever after, even if we resolve the current dispute. There will always be times when Maori and non-Maori interests rub up uncomfortably against each other. That is simply part of life in a multicultural country established on a bicultural base. But if New Zealanders continue to be ‘good-hearted, practical, commonsensical and tolerant’ — the qualities Michael King described as ‘part of the national cultural capital’ — we will be able to get through such times and go on living together and sharing the country in peace and friendship.

Riding my bike around the bays recently, on a beautiful warm Wellington day of the kind we have seen too infrequently this year, I saw all sorts of people enjoying the foreshore and seabed: fishing, gathering shellfish, swimming and playing on the beach. I rode past a group of people fishing from the rocks, and heard their car stereo playing a reggae song with the chorus ‘We want our piece of the pie/ Right here/ Right now’. I did not see whether the fishers were Maori, non-Maori, or both, but the symbolism was inescapable.

However, the current controversy over the foreshore and seabed is not about everyone getting their own ‘piece of the tai’, but about finding ways to share it. The principle that all of the foreshore and seabed not in private ownership should be owned by the people of New Zealand is a good one, and a welcome return to the idea of public ownership that was seemingly abandoned during the 1980s and 1990s. The problem lies in the fact that the government is seeking to apply this principle before Maori have had the opportunity to establish which parts of the foreshore and seabed they own. Ever since the Court of Appeal decision, Maori have said very clearly that, whatever happens, they will continue to allow all New Zealanders to have access to the foreshore and seabed.

A way of reconciling Maori and non-Maori interests in the foreshore and seabed will have to be found right here, right round the country, from Te Tai Tonga to Te Tai Tokerau, from Te Tai Rawhiti to Te Tai Hauauru. But is it really so important to find a solution right now?

- Ewan Morris is a Wellington historian

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