Fact sheet: Foreshore and Seabed

3 July 2003

Kia ora, below is a Q & A fact sheet re the debate about the foreshore and seabed, prepared by Te Hau Tikanga / The Maori Law Commission, which we are circulating as a follow up to last week's 'Alert! the 2003 land confiscation plan'.

A FORESHORE PRIMER

Prepared by Te Hau Tikanga - The Maori Law Commission.

This Primer canvasses some of the questions being raised in the current debate about the foreshore and seabed. It is based upon common concerns expressed by Maori over a course of Crown action that has already been labelled a new confiscation and which raises serious constitutional issues about the true nature of the Treaty relationship.

* Is this debate a new issue?

No. Ever since 1840 Iwi and Hapu have claimed that the foreshore and seabed fall within the exercise of tino rangatiratanga because they are both part of the whenua. However the Crown has assumed that it has absolute ownership of it and there have been numerous Maori protests and court cases through the years.

* So it's a Treaty issue then?

It is clearly covered as a Treaty right in Article Two which acknowledges that Iwi and Hapu have "exclusive and undisturbed possession" of lands etc.

However the Treaty merely reaffirmed a right and authority which Maori had exercised for centuries before 1840.

* Why has the debate become so prominent only recently?

The Court of Appeal decided on June 26 that the eight Iwi in Marlborough could have their claim to their stretch of foreshore and seabed heard in the Maori Land Court.

* Was the case decided as a Treaty issue?

No. The Court considered the matter as a common law issue because English and colonial law had long ago decided that "aboriginal" or "customary rights and title" continued after the Crown had established a colony.

The Court decided that it was the job of the Maori Land Court to define what they were.

* Are these common law "customary rights and title" the same as those claimed by Iwi before 1840?

No. There are similarities but the major difference is that the extent and nature of the common law version is actually defined by the Crown which has also assumed a right to extinguish or remove them.

What may be called the tipuna or Maori law version was defined by Maori - thus for example only Nga Puhi could define their rights and title and certainly no other Iwi had any right to extinguish them.

* So what was the government's reaction to the decision?

The day after the Court decision government raised objections and announced it would pass legislation clearly vesting ownership of the foreshore and seabed in the Crown. It effectively sought to override both the tipuna version and its own common law version of Maori rights.

* Why?

The Prime Minister and the Attorney General argued that it had always been "assumed" that the Crown owned the foreshore (had "title" to it) and that it merely wished to confirm that for the benefit of "all New Zealanders".

They also said Pakeha people were worried that Maori might block off access to the beaches or sell them.

There was also concern because many of the free trade agreements that the government enters into require that there be no confusion over title.

* Has the government done this kind of thing before?

Lots of times. Only a few weeks ago it rejected a Waitangi Tribunal Report acknowledging a Maori interest in oil and petroleum.

* Did the government discuss the issue with Maori?

No - not even its own Maori MP's.

* Do the other political parties support the Government?

Most appear to do so.

ACT and National have already said the Crown must immediately extinguish any Maori claims to title because of the "public interest" and because there must only be "one standard of citizenship for all".

* What is the current government position?

It has effectively not changed since its original announcement.

The obvious Maori opposition to its policy has resulted in meetings with Maori caucus and other Maori groups but its basic stance is still that it will legislate to take ownership while recognising certain "customary uses". It has also raised the possibility that compensation for Iwi might be considered.

* Isn't that some sort of progress though?

The extent of progress always depends where you measure it from and the government's current position as outlined by Michael Cullen is seriously flawed.

It justifies caucus discussions because it has "an electoral mandate to represent Maori" but their representation is within the government - the Crown in effect is talking to the Crown.

It illustrates its argument that the key issue now is customary use by suggesting that Maori never had a concept of ownership. However the use absolutely depended upon the "title" of rangatiratanga - without that title and its "full and exclusive" authority the rights could not be properly protected or exercised.

In that context the issue is a fundamental constitutional one and such questions are never best or finally settled by the payment of compensation.

* What does the government decision mean?

It blocks access to the courts for those iwi and Hapu who wish to pursue common law claims. In effect the government is denying one of the fundamental rights in the Magna Carta.

It subordinates rangatiratanga to the whim of the Crown and acts in breach of the Treaty.

It assumes Iwi and Hapu are claiming "special" rights from the Crown when in fact Maori are simply trying to reaffirm rights that have been in existence for centuries.

It suggests the Crown needs to assume exclusive title to the foreshore and seabed in order to guarantee free access for everyone when in fact under Maori law covenants of use could always be negotiated.

It incorrectly implies that Iwi and Hapu might freely sell off the foreshore when in fact an interest held collectively and exercised according to tikanga was non-tradeable.

* What are Maori doing?

The government has left few options open for Maori.

However a National hui has been called in Paeroa on the 12th of July.

Some Iwi and other groups are still trying to pursue their court actions and lodging new claims with the Waitangi Tribunal.

Others are organising actions to block beach access to Crown officials without obstructing the public in any way.

* The Customary Rights Justification:

In a Parliamentary debate on Tuesday June 24 the Attorney General reassured Maori that customary rights would not be affected and that it was "the government's intention to preserve the ability of Maori to pursue claims to the foreshore and seabed compatible with the Crown's ownership rights".

There is at best a dubious logic in such an approach because in denying Maori title the Crown effectively restricts the nature of the customary right and makes it liable to future extinguishment by the Crown. As an analogy, if a couple has title to their home they can make whatever alterations they choose and exercise complete rights in relation to it. However if they are tenants and ownership is vested in someone else they cannot do so without permission and the extent of their rights is diminished.

The Crown proposal reduces Maori to tenants of the foreshore which Iwi and Hapu have exercised kaitiakitanga over for centuries. It subordinates tino rangatiratanga to the whim of the Crown.

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