A Further Primer on the Foreshore & Seabed | Moana Jackson

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Moana Jackson, a highly regarded lawyer and activist throughout Aotearoa and Internationally. Has recently released another primer on the new Foreshore & Seabed Coastal Area (Takutai Moana) Bill. The Government has signaled that this new legislation will do away with key problems in the old law but according to this primer is seems to intensify and deepen the injustices of the previous bill.

I once spoke of our people who have their mana attacked being like a beached whale struggling to livewhat I say now is to remember how often the sea casts the whale on the shore. – Te Ataria, 1889.

The question that must always be asked of legislation is not whether it is a legislative compromise or even whether it is practical, but whether it is just. – Justice Thurgood Marshall, U.S. Supreme Court, 1970.

Update:

MP Hone Harawira has signalled he will not be voting for the new legislation and continues to receive a great deal of support from around the country, including support on his Facebook page from acclaimed artist Robyn Kahukiwa and strident land-rights lawyer, Annette Skyes saying

“I am proud to stand with leaders of the calibre of Hone who put principle before politics who walk with the knowledge of the travesties inflicted on our ancestors and who does everything he can to ensure those injustices are never repeated again. I hope Te Arawa directs our candidate to support him.

ABSTRACT

This Primer is part of material produced for hui within Ngati Kahungunu on the foreshore and seabed that began with the original proposals put forward on the issue by the last government in 2003.

It addresses some of the main parts of the new Marine and Coastal Area (Takutai Moana) Bill and asks questions about the new regime it establishes for the foreshore and seabed.

It tries to provide some context for the Bill by considering the grounds that have compelled Maori to so forcefully and consistently voice concern about the issue over the last several years – it considers the attempts the people have made to avoid being beached by the various Crown proposals since 2003.

It also tries to apply the test for legislative legitimacy outlined by Justice Marshall and assesses whether the Bill is just.

It regrettably concludes that it is not.

It further concludes that the proposed Bill simply consolidates the main inequities of the 2004 Seabed and Foreshore Act that the Waitangi Tribunal found to be problematic in terms of Te Tiriti o Waitangi and the United Nations Committee on the Elimination of Racial Discrimination held to be racially discriminatory.

In that context the Prime Ministers statement that the Bill will be a full and final settlement of the issue is simply inaccurate because rather than removing the injustice it actually compounds it.

Moana Jackson.

What was the context of Maori opposition to the 2004 Foreshore and Seabed Act?

There were three main grounds of opposition.

  1. The Act was a confiscation of Iwi and Hapu rights to the foreshore and seabed because it removed title and vested it in the Crown on behalf of all New Zealanders.
  2. The act was discriminatory because it required Iwi and Hapu to allow access over areas of foreshore they had an interest in but did not place the same responsibility on Pakeha. It created a basic inequality of obligation.
  3. The Act was also discriminatory because it denied Maori access to the Courts to seek clarification of rights. It created a basic inequality of legal opportunity.

What did Iwi and Hapu seek?

Repeal of the Act and a replacement piece of legislation that

(a) removed the possibility of confiscation and
(b) was non-discriminatory.

Does the Marine and Coastal Area (Takutai Moana) Bill Repeal the 2004 Act?

Yes.

There has been a lot of work done by the Maori Party and others, including the Ministerial Review Panel chaired by Justice Edward Durie and countless submissions by Iwi and Hapu to ensure its repeal.

Does the new Bill remove the inequities in the 2004 Act?

No.

Indeed in many ways it simply enshrines them in new language.

How does the new Bill address the issue of confiscation?

The Bill does remove the idea of vesting the foreshore and seabed in the Crown.

However it still takes Iwi and Hapu interests off Maori and vests them in a new construct called a common space in the marine and coastal area.

It remains a confiscation because it is still a taking from Iwi and Hapu. The only difference is that the final destination of the confiscated land is given a new name.

What does the common space mean?

It is a legal fiction denoting an area that nobody owns and within which no-one is allowed to have new private title.

Does the common space apply to all the foreshore and seabed around the coast?

No.

It effectively only applies to area in which Maori might have an interest and specifically excludes the large majority of foreshore currently held by others under private title.

Does the new Bill have rules around the common space?

Yes, which is why it is a legal fiction.

For example on one hand it says it is a common space no-one owns and on the other it outlines in great detail the authority and control the Crown has over it.

It thus has specific provisions for absolute Crown ownership of certain minerals in the common space with the associated power to grant licenses for those minerals. It asserts Crown ownership rights over an area that no-one is supposed to own.

How does it address the issues of discrimination?

It doesnt really.

The continued confiscation is itself discriminatory because areas held by others are not subject to the same taking and subsequent vesting in the common space. Only Maori are discriminated against in this way.

The Attorney General Chris Finlayson has nevertheless stated that the Bill, unlike the Foreshore and Seabed Act 2004 which it replaces, treats all New Zealanders, including Maori, without discrimination.

Yet the Bill clearly discriminates between Maori and other New Zealanders in all sorts of other quite specific ways.

For example while our people have always been willing to allow access we have always asked that Pakeha in similar situations be required to do the same. Under the Bill they do not have to do so, which thus maintains the basic inequality of obligation…

Does the Bill restore the right of access to the Courts?

Yes.

It establishes a new customary title in the common space that Iwi and Hapu may seek to have recognised in court.

However to establish the title Iwi and Hapu have to prove continuous use of the relevant area since 1840. Because the ability of most of our people to use the foreshore since 1840 has been taken away or limited by actions of the Crown it is going to be almost impossible for most Iwi and Hapu to meet the test.

Indeed research conducted into the previous regime suggested that at least 98% of Iwi and Hapu have been denied undisturbed possession since 1840.
The acceptance by the Prime Minister that the threshold was so high most wouldnt meet it is both an accurate assessment of the test and a perhaps unwitting acknowledgement of its basic discriminatory nature.

Due process is restored but in a way that maintains the basic inequality of access.

Are there other provisions regarding due process?

Yes.

The newest provision sets a time frame of six years for Maori to prove their so-called customary title.

This is a particularly odious provision as it introduces something new into the whole discourse of civil and human rights, namely that a right or interest can only exist if people can establish it within a certain time limit.

It is rather like saying for example that the basic right to freedom of speech can only exist if you can prove you have it in six years. Rights are meant to be universal and their universality depends upon them being free of time constraints.

It simply introduces another discriminatory process applicable only to Maori.

Can Iwi and Hapu negotiate customary title in the common space?

Yes, direct negotiations can be held with the Crown but will in practice only be available those few Iwi and Hapu that can meet the relevant test.

It excludes most Maori and will therefore be divisive and create further inequalities.

What is the nature of the customary title?

It is a new form of title that is neither the customary title recognised in Maori law nor even that recognised in the Pakeha law of aboriginal title.

It is also quite specifically defined as being less than freehold title.

It is therefore a discriminatory title in that others may have freehold in their land contiguous to the moana but Iwi and Hapu cant it is a subordinate title predicated on a notion of essentially subordinate Maori rights.

These few issues alone make the Bill discriminatory, unjust, and in continuing breach of Te Tiriti and other relevant international Human Rights Conventions.

Is there a period for submissions?

Yes, although the dates and times have yet to be announced.

3 COMMENTS

  1. Kia ora koutou

    I was wondering if anyone has considered the influence of Kantian based method in human reason. I ask this because Immanuel Kant is responsible for a revolution in human reason in the same way Copernicus was before him when he refuted Aristotle’s geocentric metaphysic.

    Kia ora

  2. Kia ora taatou kaatoa,it is very interesting to know that ,the Takutai Moana bill clearly reinforces the ideal that of the 2004 Foreshore and seabed act and continued discrimination to Maori and is not Just,The New Zealand government in all it wisdom, views this law as a way forward for all New Zealanders to have common space,however governance is at the crowns discretion,when will enough be enough?How much longer will the government continue to play one off against the other,after all, are we all not one ,from the very words of William James Busby in 1840, equality and unity,50/50,world war 1 and ww2 both Maori and Pakeha settlers fought for the rights to govern and live side by side,as is represented in this countries Code of Arms, which we as the smallest nation have set a president throughout the world because of this unique unity,as the significant other to the Code of Arms adopted in 1911 and revised in 1956 Maori are the 50% other, reguardless of population status in relation to all governance over lands seas and peoples in Aotearoa unaptly named New Zealand,When will the Crown uphold its own integrity to this very Code,New Zealand history has proven that there is one law for one and another law for the other,I hope I never see the day that I can not take my moko to the moana of where our tipuna once sat and enjoyed our home Aotearoa

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