OPEN LETTER
From Waiariki MP Te Ururoa Flavell to Waiariki Electorate and Iwi on the new Marine and Coastal Area (Takutai Moana) Bill
October 28, 2010

Tena tatou katoa

Introduction
The new Bill to replace the infamous Foreshore and Seabed Act 2004 has finally hit the table of Parliament. Positions have already been taken and statements made, so I thought it was best to put things in context from my perspective. I hope this assists in having people understand the position taken by myself and members of our team.

Background
When we first started as a Māori Party, one of the goals we set ourselves was to repeal the 2004 Foreshore and Seabed Act. The Māori Party was founded on this injustice. That Act denied our people access to justice through the courts to test their customary ownership to the Foreshore and Seabed, and was declared by national and international experts as racist in its intent and a confiscation. The people were united in their call, that we must repeal the Act and restore the right of due access to the courts. Our actions since that time, have been to keep to our word.

How did it come about?
The starting point was what was called the Ngati Apa case where Māori won the right to test customary ownership of the Foreshore and Seabed in court. The Helen Clark lead Labour Government stopped that and took the Foreshore and Seabed under the Crown (this is the confiscation).

Maori Party and National Party agreement
The Māori Party and National Party agreed when we went into an arrangement to form Government in 2008, to have a review of the Foreshore and Seabed 2004 Act. An independent Ministerial Review Panel chaired by Sir Eddie Taihakurei Durie undertook a nationwide consultation process in 2009 and concluded that the Foreshore and Seabed Act 2004 failed to balance the interests of all New Zealanders in the foreshore and seabed, was discriminatory and unfair. In terms of the agreement, things could have finished immediately after the review; however there was a desire by both parties to deal with the issues raised in the review process.

National Party Ministers, the Maori Party MPs and the Iwi Leaders Forum together, have moved to prepare a Bill that would repeal the current Act and replace it with the new regime. It clearly needed to be something that was acceptable to all parties.



A starting position for negotiations
From the start, the Māori Party asked for advice from key people with experience in this area. We received some excellent papers from Moana Jackson, Whaimutu Dewes and another from Judge Heta Hingston which gave us a starting point in negotiations.

The Māori Party also set out a starting point for discussions which we took on the road early in 2010. This included tupuna title, no sale of the Foreshore and Seabed and public access. All the regional hui we attended agreed that these were appropriate to set out our position.

We had regular meetings with the Iwi Leadership Forum who provided more legal advice and direction. I am very clear that the iwi leadership were representing whanau, hapu and iwi and they made that point explicit in all of the meetings we had.

Like all negotiations, we put up our starting position knowing we might have to have a fall-back position just as the Crown would. We were able to find common ground on some matters, while other matters took longer e.g. The National Party suggested four years to lodge claims, we said ten years, the end result was six years.

Involvement of Maori Party MPs
Our Co-Leaders were involved at all levels right to the Cabinet table. Rahui as the lawyer in the team was the closest to the action, Hone was also involved in meetings with Ministers, right up to the very last hour. All of us have seen various papers and have had our input into the legislation. All of us have been at hui with the Iwi Leadership Forum. The legislation is the best negotiated outcome we could have got to. It has our name on it; it is a Māori Party Bill.

Hone advised us of his position the night before the legislation was debated in Parliament.

So what does the Bill do?
• Repeals the Foreshore and Seabed Act 2004.
• Applies to the area formerly known as the foreshore and seabed, which will be known in future as the marine and coastal area. It creates a common space in the marine and coastal area which allows the interests and rights of all New Zealanders in the marine and coastal area to be recognised in law.
• Guarantees free public access in the common marine and coastal area
• Does not affect private titles in the marine and coastal area
• Guarantees and, in some cases, extends existing rights for navigation, ports, fishing and aquaculture.
• Provides for the customary interests and rights of Māori in the common marine and coastal area to be recognised through three types of customary interest: mana tuku iho; customary rights and customary title.
• This recognition will include the right to go to the High Court (or negotiate an out-of-court settlement with the Crown) to seek customary marine title for areas with which groups such as iwi and hapū have a longstanding and exclusive history of use and occupation.
• Unlike private title, customary marine title will be subject to the right of public access and cannot be sold.
• Similar to private (fee simple) title, customary marine title gives rights to permit activities requiring a resource consent, some conservation activities, protection of wahi tapu, ownership of taonga tuturu found in that space, and ownership of non-Crown minerals. It also gives the customary title holder the right to create a planning document setting out objectives and policies for the area.
• Groups such as iwi and hapū will also be able to gain recognition and protection for longstanding customary rights that continue to be exercised. Their association with the common marine and coastal area in their rohe will also be recognised through a status known as mana tuku iho, which formalises existing best practice in coastal management. This will allow them to take part in conservation processes in the common marine and coastal area.
• A key development in the Bill has been the Burden of Proof clause (105), which says that if the Crown does not accept that customary title exists in an area, then the Crown has to prove customary title has been extinguished.

What is the purpose of the Bill?
The legislation now out for consultation, describes its purpose as to:
• establish a durable scheme to ensure the protection of the legitimate interests of all New Zealanders in the marine and coastal area of New Zealand; and
• recognise the mana tuku iho exercised in the marine and coastal area by iwi and hapu as tangata whenua; and
• provide for the exercise of customary interests in the common marine and coastal area; and
• acknowledge the Treaty of Waitangi (te Tiriti o Waitangi).

What happens now?
The Bill has had its first reading. It is now with the Maori Affairs Select Committee who are gathering submissions and will be moving around the country to hear submissions from late November into early December this year. Submissions are due on the Bill by 19 November. Those wishing to make a submission need to send two copies to the Clerk of the Maori Affairs Select Committee, Parliament Buildings, Wellington. You also need to indicate if you wish to be heard at one of the venues, or by teleconference or audio conference. There is also the capacity to make an online submission (www.parliament.nz).

What would have happened or will happen if we had pulled the plug and walked?
The same racist Bill would still be in place and the confiscation of our land would have remained in place.

We would not have achieved repeal.

It is important to note that it is likely that we would not achieve repeal under a National Government in the near future because they would have tried and failed.

There would also be no motivation for Labour to do anything because to do so would have admitted their original stand was wrong.

Furthermore, there are a number of claims already lodged under the Foreshore and Seabed Act 2004. These claims have been put on hold while this new Bill is being considered. If these claims were to be progressed and settled under that 2004 Act, it would entrench that Act and make it even more difficult to repeal.

So have we achieved what we wanted from Tariana leaving the Labour Party, from the great hïkoi and from the formation of the Māori Party?
In passing the Bill we will have dealt with the two major issues: Repeal of the 2004 Act and restored access to the Courts.

So where to from here?
It is not likely that we can revisit this after the next election simply because if the Bill goes through all stages, it will become law just before the election. Having dealt with it, the next Government, National or Labour is not likely to touch it.

It is suggested that we leave it for a term to see what it means in practical terms. It may be best to allow the processes to run and for iwi and hapu to make their case. As Tariana has stated, it can always be revisited and the best way to do this is for the Maori Party to achieve the balance of power by ourselves without ACT or anyone else. That is in the hands of the people.

There are those who oppose our position and by implication, want the 2004 legislation to remain. I have to state upfront that is not an option I have heard put to the floor in any hui.

E hoa ma, I leave this background for your consideration and hope that you provide some feedback. I have attached some common questions and responses which again might help clarify the situation. Please take every opportunity to have your say over the Bill. It is a hugely important Bill and we have not taken our position lightly. We look forward to your comments. Noho ora mai.

Naku noa

ENDS

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