Primer on the Marine and Coastal Area (Takutai Moana) Bill

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The land and waters have nearly all been taken now in a raupatu that seems to have no end they seem determined not to hear what our people say.

- Te Ataria, 1889.

Perhaps the greatest injustice in the colonisation of Indigenous Peoples is that a wrong is so often excused as reason and any response to indigenous grievance is trumpeted as a step along the way to resolution yet a wrong can never be reasonable and a response can never be a resolution, or even a step towards resolution, if it perpetuates the core injustice.

- John Mohawk, Haudenosaunee jurist at Conference on Settling the Unsettled 1996

INTRODUCTION.

This Primer has been produced on behalf of Ngati Kahungunu after hui last month reaffirmed the opposition of the Iwi to the Marine and Coastal Area (Takutai Moana) Bill.

That opposition has been consistent and principled since the last Labour government first announced the proposed 2004 Foreshore and Seabed Act. It has been expressed in numerous submissions to government since then and was most recently re-stated in the submission to the Maori Affairs Select Committee on the issue.

Throughout that time the Iwi has also been consistent in offering practical and reasoned suggestions to address the issue and regrets that once again the Crown seems determined not to hear what our people say.

It was that long opposition which prompted the chair of Ngati Kahungunu, Ngahiwi Tomoana, to ask the Maori Party at its Annual General Meeting last year to withdraw its support for the Bill. In his view the Party was swallowing a ngarara and asking our people to do the same.

The Primer attempts to give context to that concern and highlights the ongoing flaws and injustice in the present Bill that indeed render it a monstrous wrong.

In doing it is mindful that other Iwi have been equally consistent and principled in their opposition to the original 2004 Act and the current bill. Indeed all but one of the Iwi submissions to the recent Select Committee hearings expressed opposition to all or substantial parts of the Bill.

– Moana Jackson.

What is the general context for the opposition to the Bill?

Although the Bill does repeal the original Act and purportedly removes Crown title or ownership it is based upon the same inherent injustices.

  1. It continues to confiscate Iwi and Hapu rights to the foreshore and seabed by placing any foreshore in which Maori have an interest in a new Crown-controlled construct called a common space in the marine and coastal area.
  1. It continues to be discriminatory in several ways, most notably because it only confiscates areas of the foreshore in which Maori have an interest. It does not affect non-Maori interests and thus creates a space where only the rights of Iwi and Hapu will be redefined and controlled by the Crown.
  1. It also continues to be discriminatory in specific ways. For example it requires that Maori with interests in the foreshore and seabed must provide public access but does not impose a similar requirement on Pakeha.

Is the common space any different from the Crown title of the 2004 Act?

No.

The Bill establishes the common space as an area which no-one is meant to own and within which no-one is allowed to have a new private title.

However the Crown continues to exercise Crown title (continues to act as the owner) by setting the rules for the space. For example it keeps its ownership rights of any nationalised minerals such as petroleum in the common space.

It thus asserts continued Crown ownership and ultimate authority in an area that no-one is supposed to own, just as it did under the Crown title of the 2004 Act.

Are Iwi and Hapu granted any interests in the common space?

Not really.

The Bill does define customary interests (mana tuku iho) as part of a regime of Maori customary title that may be claimed in the common space.

However that Maori customary title is not the title exercised by Iwi and Hapu prior to 1840. Neither is it the full and exclusive title guaranteed in the Treaty of Waitangi.

Rather it is a limited bundle of rights subject ultimately to the presumed authority of the Crown to define their limit and extent. They are necessarily subordinate rights.

For example they are less than those that might be held by a Pakeha person with land contiguous to the foreshore and seabed. Indeed the Crown has stated several times that while they are a property interest they are something less than a freehold title.

That is not only discriminatory but a blatant redefinition of tino rangatiratanga and any accepted understanding of mana tuku iho.

Do Iwi and Hapu have to prove their customary interests?

Yes.

If Iwi and Hapu choose to go to Court to claim a customary interest they have to prove that it has been exercised through continuous and exclusive use and occupation of the area concerned since 1840.

Unlike those with a freehold title whose interests automatically flow from the title the recognition of mana tuku iho essentially conveys nothing unless Iwi and Hapu can pass this test and prove continuous use.

Will it be easy to prove continuous use since 1840?

No.

The ability of most Iwi and Hapu to prove continuous use has actually been taken away by actions of the Crown since 1840. For example the raupatu or land confiscations have prevented Iwi and Hapu from having the continuous use needed to establish mana tuku iho.

While it may be argued that a raupatu of dry land will not necessarily sever the connection of Iwi and Hapu with the foreshore, research prior to the 2004 Act shows that in over 97% of cases it has effectively prevented continuous use.

Perhaps it is for that reason that the Crown has stated several times that the test is so high that most Maori wont meet it.

Isnt this test unfair?

Yes.

While the Bill does restore access to the Courts it remains prejudicial to Maori because

(a) the test is so high it may well be a costly exercise with no hope of success

(b) it does not impose any similarly impossible test on others nor require them to prove the extent of their interests.

Can the test be met in any other way?

Yes.

Iwi and Hapu can negotiate with the Crown but any negotiations will still be limited to the nature and extent of any customary interest.

In effect the Crown will still control the process and Iwi and Hapu may only end up with a right to be consulted on conservation and resource management, something which is already required in legislation such as the Resource Management Act.

Does the Crown have to meet any test?

No.

Because it defines the nature of customary interests it only has to satisfy itself that an Iwi or Hap? has had continuous use since 1840 subject to its overriding ownership.

It has accepted one obligation in relation to its so-called right of extinguishment which derives from old colonising law and assumes that a colonising power can extinguish indigenous rights provided it follows its own processes.

Normally Iwi and Hapu would have to prove their interests have not been extinguished but the Crown has now agreed to accept that it will have to prove that they have in fact been removed.

While it might be argued that this is an improvement it does not remove what John Mohawk would have regarded as a core injustice, namely the presumed right of a coloniser to take away any indigenous rights in the first place.

In his recent Report the United Nations Special Rapporteur supported this view and reminded the Crown in particular that any extinguishment of indigenous rights by unilateral uncompensated acts is inconsistent with the United Nations Declaration on the Rights of Indigenous Peoples.

Have Maori suggested alternative resolutions?

Yes.

However as with the submissions to the Select Committee they have been rejected.

For example one suggested resolution was that the Crown recognise the tipuna title of Iwi and Hap? in the foreshore and seabed and then negotiate appropriate matters of access etc. The Crown rejected that proposal because there are no precedents, even though there are no exact precedents for its idea of a common space either.

Will Iwi and Hap? continue to seek a more just and non-discriminatory resolution?

Yes.

It is regrettable that the proposed Bill makes this necessary when the potential for a just resolution was possible based on a reasoned dialogue with the Crown that took into serious account the suggestions Iwi and Hap? have made and the recommendations also put forward by the Ministerial Review Committee in 2009.

It is especially regrettable that politicians and media commentators have depicted the current opposition as politicking or a mere jockeying for position by Maori. That is insulting to the considered views put forward by Iwi and Hap? and singularly ignores the blatant injustice and discrimination within the Bill.

6 COMMENTS

  1. hmmm interesting to note who is calling who racist’s in this blog…it seems an appropriate phrase to some who when an argument is not going their way or there is a gap in their knowledge to just label someone a racist. In my view we have come a long way from the wi parata decision and prendergast’s statement of the treaty being a nullity. there is no doubt that Maori have had some ill treatment in the past to contend with especially in the arena of the Court and if all this legislation does is to formalise the right of Maori to be heard in relation to such claims I say surely thats a good thing?
    Regarding the ‘test’ where do you possibly expect the Crown to draw the line on the burden of proof? There must be a line drawn somewhere or we will have every radical in the country claiming a right through some displaced iwi from who knows when. so it seems appropriate any such test would be from the date of the signining of the TOW? I think give title to Maori…Personally I dont care you can own the common areas just grant all pakeha customary title to use it to fish or gather food for their whanau(a right you have had over pakeha for many years thanks in part to the Te weehi decision)BUT when it comes time to maintain the foreshore because of erosion or some disaster like an oil tanker spill you guys can pay to manage it or for it to be cleaned up eh?:) Fair enough?

  2. Objection to Maori Party voting in support of Marine and Coastal Bill

    Online Petition to Maori Party and Governor General

    We object to the Political Party with in New Zealand Government named "The Maori Party" voting in support of the legislation named "The Marine and Coastal Area (Takutaimoana) Bill.

    We also object to the Maori Party,s continuation of support to this legislation.

    This legislation violates and breaches Maori Rights embedded in the treaty named "Te Tiriti O Waitangi" and the Declaration named "He Whakaputanga o nga Rangatira o Niu Tireni".

    Therefore, we would like to state Maori Party's vote of support for the Marine and Coastal Area Bill on the 22nd March 2011 DOES NOT represent my support or tautoko.

    We request that the Political Party named the Maori Party cease immediately their continuation of support of the "Marine and Coastal Area(Takutaimoana) Bill, as it continues to violate and breach "Te Tiriti O Waitangi".

    For the asaid reasons given above

    We request that Assent is NOT GIVEN to the Marine and Coastal Area (Takutaimoana) Bill by the Governor General of New Zealand.

    Click on link below to sign the online petition
    http://www.thepetitionsite.com/1/we-object-to-you

  3. as one flaw amongst many about this bill, is some coastal areas in Aotearoa are fenced from the roadside approx 200 or more meters to the shoreline by tauiwi which cuts off access to enter not unless your prepared to walk distances to get permission , that in its own is raupatu or confiscation regarding a customary right let alone a title to test in courts for maaori or for everyones right in that context and, don't be fooled by common space that it is in the best interest for all New Zealanders , the draught for common space belongs to crown so in that manner they have control reciting obvious reasons in exploiting minerals for the economy at the expense of the environment … the thing is that some public access roads is on the wrong side of the fence in denying any public full access to the shoreline …. subsequently Katrina if you refer and read the 2nd article in the Treaty of Waitangi you will find your answer that it not only dishonor but discriminates regarding a customary right where the title has to be tested to be proven ,again i stress the word raupatu*
    .

  4. Maori are special? yes, we are tangata whenua you tauiwi bitch! This peice of racist legislation is not "fair to everyone" because it discriminates against Maori and only Maori. For most iwi and hapu who are fighting for customary title, they have been kaitiaki for a long time before you even got here. It's racist bitches like you who try to make us out to be just another race of immigrants. If you think you have a case, you owe it to yourself to take it up with the courts. And if you really believe that ALL NZers should have equal rights over the foreshore and seabed, you should go and see all your fellow tauiwi who privately own most of the foreshore up and down the country. Go and tell them that you feel you should have the same rights as them to their strips of foreshore and see what reaction you get. BTW, of course property rights apply you dumb bitch. You can develop it and you can build on it, what do you think a dock is? Labelling the writer a "brown supremicist" is bullshit too, Kindly fuck off back to whence you came from.

  5. This is a load of bollocks by a typical brown supremicist who thinks that just because SOME of your ancestors happened to be Maori, who happened to emigrate to new Zealand a few hundreds years before the Europeans, that you are somehow more special than everyone else.

    The current Act is fair to everyone because it gives everyone equal rights over the foreshore and seabed regardless of their ethnicity. That was the whole bloody point of the Treaty of Waitangi, but you conveniently forget the bit about "Now we are one people".

    You are doing Maori no favours with your lies and propaganda, which are based on selfish greed. You are not interested in improving life in New Zealand for everyone, only your own little whanau at everyone else's expense.

    The reason the foreshore and seabed does not merit the same property rights is because IT IS NOT THE SAME AS LAND!! You can't build on the foreshore, you can't light fires on the foreshore, you can't occupy the foreshore.

    We all have to live under the same laws or there will be chaos, so why don't you fuck off to South Africa with your apartheid brown supremicst views?

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