SEARCH FOR CALM WATERS
The foreshore and seabed debate, which began with the simple desire of Te Tau Ihu iwi to farm mussels in their traditional fishing grounds, has reached a major turn-around in its tumultuous six year journey. It's now up to the National Government, coastal hapu, iwi leaders and the Māori Party to find a new way forward. Kaituhituhi Kim Triegaardt reports.
Te Rautawhiri and Manuhaea Mamaru-O'Regan, mother Hana and pōua Tā Tipene O'Regan search for pūpū at Christchurch estuary.
Five months on from the Attorney-General receiving the findings from the Ministerial Review Panel, Prime Minister John Key has finally indicated the 2004 Foreshore and Seabed Act will be repealed. The intent is there, but fulfilling the promise hangs on replacing it with a better regime.
The review panel comprised chairperson Justice Eddie Taihakurei Durie (Ngāti Raukawa), who was former High Court judge and Waitangi Tribunal chair, specialist Māori legal issues barrister Professor Richard Boast and Kāi Tahu educationalist and te reo proponent Hana O'Regan. The review and panel was part of the confidence-and-supply agreement the National Party brokered with the Māori Party when it became government in late 2008.
The panel's final report found the Act not only wrong but "the single biggest land nationalisation statute enacted in New Zealand history". In conclusion it said the Act was discriminatory and should be repealed.
The foreshore in question is the inter-tidal lands between mean high water spring and mean low water spring tides. The seabed is that land permanently covered by sea stretching from the foreshore to the 12-nautical-mile outer limits of New Zealand's territorial seas.
Two general approaches were suggested. The first was a National Policy Proposal focussed on a national resolution put into effect through a bicultural body and the second was a Regional Iwi Proposal focussed on direct negotiations between Crown and iwi. The panel said it believed either of these, or a combination of the two would achieve an acceptable result.
Matanuku Mahuika (Ngāti Porou) is the principal legal advisor for the East Coast iwi in relation to the foreshore and seabed negotiations with the Crown. While he says it is inevitable that the Act would be repealed, what replaces it is still "quite an open question".
Mahuika favours the regional negotiation response. "The difficulty," he says, "of negotiating with a national body is you are a long way removed from where those rights are held. Interests are often very specific to specific groups. You need a negotiation structure to produce acceptable outcomes to these groups and that recognises regional differences."
Māori Party co-leader Dr Pita Sharples agrees and says any new legislation has to secure recognition and protection of tikanga Māori. "I'd like the law to set up a protective framework, with room for local solutions to suit local circumstances. So the law might set up a process whereby local communities would engage with tangata whenua and work out their own arrangements to suit themselves, which might be reflected in local bylaws."
Attorney-General Chris Finlayson declined to comment on future talks about what is next for the Foreshore and Seabed Act. Word from his office is that a work stream is underway but it is too early to make any announcements except the Prime Minister has said public access is the bottom line. The non-official comment is "we are not at the stage where it's possible to present something in a coherent fashion."
"I'd like the law to set up a protective framework ... a process whereby local communities would engage with tangata whenua and work out their own arrangements to suit themselves, which might be reflected in local bylaws."
DR PETER SHARPLES
Maori Patry co-leader
Either way, any new regime has to accommodate customary use and customary authority, and an inalienable right to public access.
O'Regan says the most important commitment for the review panel was to present a report so comprehensive, it could never be challenged.
"No government will ever be able to turn around now and say 'we didn't know the effects of what we did'."
The panel also knew at the end, the government might not go with what they recommended.
"So we came up with nine core principles that need to underpin any future legislation," says O'Regan.
"Any new legislation has to be based on a Treaty of Waitangi framework and it has to reflect that kindred spirit of Te Tiriti – inter-national human rights. It also has to respect the principle of due process and good faith, as well as that of compensation and the right to development."
O'Regan admits the panel didn't shy away from confronting the issues and there was vigorous debate until the early hours of the morning; not against each other but to make sure each and every point was debated through to its logical end.
"We needed to make sure we didn't fall into the same trap as the fisheries deal. For instance we were adamant that the rights that were being discussed were those of the coastal hapū with traditional interests and rights in those areas and resources – it wasn't about rights for all Māori, we wanted coastal hapū."
As a result, one of the nine core principles states customary rights are attached to coastal hapū and iwi and not to Māori in general.
The foreshore and seabed debate had its origins in the top of the South Island. Treaty of Waitangi and constitutional issue specialist lawyer Moana Jackson summed up the events in his address to the Human Rights Commission a week after a 20,000-strong protest hīkoi descended upon Parliament in 2004.
In the 1980s Te Tau Ihu iwi wanted to establish mussel farms, said Jackson. They were told by the Blenheim Distict Council that if they wanted to do that, they would have to apply for a licence from the council. The iwi saw no need to apply for a licence because it was their whenua, and for them as for most iwi, the seabed is simply whenua with water on top of it. But to avoid conflict, they applied for a licence. Their application was declined. So they applied again, and it was declined again, and again, and again.
In the five years that those iwi were denied applications for mussel farm licences, four Pākehā organisations were granted licences by the same council.
Through research, an aggrieved Te Tau Ihu discovered that under the common law, which the colonisers claimed to have brought here, their rights to that tiny piece of foreshore and seabed had not been extinguished and therefore they had an absolute right to establish mussel farms if they wished. "They took that argument to court. And the court process ground on as court processes tend to do," says Jackson.
"Until last year (2003) in June the Court of Appeal issued its decision which said in fact that the rights had not been extinguished, were not covered by the Validation of Invalid Land Sales Act or any of the various pieces of port legislation. And that Māori therefore had a right to go to the Māori Land Court in a sense, to test the extent of those un-extinguished rights."
Jackson says he received the judgment of the Court of Appeal on a Thursday afternoon. "I finished reading it at about lunch time the next day. I turned on the radio and (then Attorney-General) Margaret Wilson was making the first government announcement that they would overturn the Court of Appeal decision."
The Foreshore and Seabed Bill was designed to permanently and retrospectively vest ownership of the foreshore and seabed in the Crown. Māori were no longer able to lodge claims for title and were only allowed customary usage rights.
Te Rūnanga o Ngāi Tahu kaiwhakahaere Mark Solomon remembers iwi reaction. "Before we knew it: pow – it was like a bomb had exploded over New Zealand."
There was a tsunami of public outrage which Hana O'Regan says brought out the "absolutely worst aspects of red-neckery in New Zealand".
Ultimately it was a move that cost the Labour Government dearly. As Tariana Turia crossed the floor (see sidebar) in Parliament to vote against the implementation of the Act, she couldn't have foreseen the groundswell of Māori pride that would culminate in a protest hīkoi through the capital and the establishment of the Māori Party.
Matanuku Mahuika says the issue was divisive and it has had an ongoing impact on the perception of Labour among the Māori electorate. He thinks the outcomes should serve as a warning to the National Party.
"This is certainly not something you would want to be having to debate in the house during an election year," he says.
There's unanimous consensus the foreshore and seabed issue needs a speedy resolution. But there's still concern and a strong sense of apprehension about how the process will play out and a fear race will again become an issue.
MP for Te Tai Tonga Rahui Katene was the Māori Party's project leader for the Ministerial Review of the 2004 Act. She fears "the quiet voice of reason" might go unheard, again.
"(Phil) Goff is trying to play that card again and it's a real pity. He was there when the situation exploded and the Don Brash government played the iwi-kiwi card."
"The tragedy of five years ago," says Sharples, "was that so much of the argument was based on misinformation and confusion. Tangata whenua have consistently said they have no intention of preventing access to beaches – except to protect wāhi tapu or sensitive ecosystems, or to enact a temporary rāhui when someone has drowned nearby."
O'Regan says the review provided irrefutable evidence of this position.
"They all promoted the position of open access to the public but the protection of the environment had to be paramount. What people want respected is their right of kaitiakitaka to protect the environment."
Mahuika expects the next round of the consultation process will see some strong lobbying from interested groups, port companies and marina developments, but he doesn't believe the different sides are insurmountable – although there may be a few dissenting voices.
"The groups that have enjoyed use of the foreshore and seabed without having to pay a high level of regard to Māori interest are worried they will lose what's been an advantaged position," he says.
O'Regan agrees: "Since when was it a right to be able to drive your four-wheel drive over pipi-seeding beds?"
She says the review highlighted governance of the foreshore was "a mess" and that people were often misinformed about their rights.
"There is a huge dearth of knowledge and a high level of ignorance in coastal communities over what their rights are. We found huge tracts of land that were inaccessible because they are in private land ownership, and it wasn't Māori ownership."
The review acknowledged there was unfinished business and the current legislation doesn't allow for the resolution of underlying issues. The challenge now is finding a solution that resolves everyone's concerns and at the same time preserves the rights of all New Zealanders.
Rahui Katene says everyone has been given the opportunity to pause and reflect on the ongoing issues around the foreshore and seabed.
"Coming on top of the negotiations over the Emissions Trading Scheme and the great relationship between Māori and Crown that has come about as a result of that, this is a really positive time. We need to feed into that."
"All this ever needed was a reasoned discussion and a solution would have sorted it out. However we have never been at a place of reasoned discussion on the foreshore and seabed and I still don't think we are there. It was nonsense perpetuated by political parties and driven by hysteria."
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She says she hopes the next round of consultation is not just a chance for Māori to talk among themselves but also hopes Pākehā take the chance to listen and learn.
"The foreshore and seabed issue is fundamental to the Māori Party and it's not going to go away. At the moment the law is failing Māori. The Act took away our rights to go to court to get property rights sorted out."
There is also general consensus the repeal and new legislation will need to transform the way mana is expressed in Aotearoa – and that a transformative approach will be a critical part of healing from the Foreshore and Seabed Act.
As Edward Ellison, on behalf of Te Rūnanga o Ōtākou, said in his submission before the review panel: "our mana, our rangatiratanga, needs to be recognised in the way we deal with those things that were never included, have never been ceded by our people in the past – it's about mana or rangatiratanga rather than ownership or title."
Mark Solomon believes if Māori are to achieve these goals they need to have more genuine input into the management of the foreshore and seabed.
"I think we are treated just like any other stakeholder but there should be more recognition about Te Tiriti. We should be involved at a policy formation level, not just as a stakeholder after the fact and once policy is a done deal.
"All this ever needed was a reasoned discussion and a solution would have sorted it out.
"However we have never been at a place of reasoned discussion on the foreshore and seabed and I still don't think we are there. It was nonsense perpetuated by political parties and driven by hysteria."
In that hysteria, Māori were accused of wanting to charge people for putting a boat on the water, wanting to sell any rights they got to the seabed and even worse, prohibit access and force Pākehā to pay for picnics on the beach. Beneath the noise, hype, fury and madness, Solomon says the true issue was lost and that was simply that the Act denied Māori due process under the law.
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"The foreshore and seabed issue is fundamental to the Māori Party and it's not going to go away. At the moment the law is failing Māori. The Act took away our rights to go to court to get property rights sorted out."
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Matanuku Mahuika says regardless of what changes are made, the most important thing to correct is this "fundamental mischief" of the Act.
"The declaration of blanket Crown ownership and the implications of that upset the balance of any regime that you subsequently establish. The problem with just having title is that you either satisfy the test for obtaining title or you don't so there is always a clear winner or loser. It doesn't allow for the situation that applies to a vast number of iwi who probably won't be able to satisfy the request for common law for title."
One option mooted was to change the Māori Land Act and allow customary title to become private title. It's something Pita Sharples says the government and iwi and hapū have considered as part of the repeal of the Foreshore and Seabed Act.
"Customary rights are based in tikanga Māori, and are held by a whānau or tribal community. By definition they cannot be sold according to law, until after the customary rights are converted to a legal title. The Ture Whenua Māori Act could be changed to prevent customary rights in foreshore and seabed being converted to a freehold title."
Another option is to recognise what some iwi are calling "tūpuna title". Tūpuna title is about recognising iwi and hapū have inherited their mana and kaitiakitanga over the foreshore and seabed, and that inheritance comes with rights and responsibilities created by tikanga Māori quite independent of the English law.
While Solomon would like to see the government meet the November 2010 deadline for new legislation, he doesn't think expediency should win out over getting the legislation right. "I think it would be desirable to have it done before an election year but it does need to be done properly and fairly so if that takes up to next year or the year after so be it."
Search For Calm Waters
Hīkoi
Going Global
For the Love of People
Māori Party Evolution
Inside Issue 45
SEARCH FOR CALM WATERS
THROUGH THE TREES
MEETING TŪTOKO
ULVA'S ISLAND
ARM STRONG
COUNTRY EXPEDITION
HAVE YIKE, WILL TRAVEL
- Keri Hulme
- Toi Iho
- Hei Mahi Māra / Gardening
- He Whakaaro /
Tom Bennion - Ngā Take Pūtea /
Whānau Finances - Kai / Recipes
- Te Aitaka A Tāne
- Te Ao Te Māori
- Reviews
- He Tangata
- Letters
Issue #45 Published Dec 2009
© Te Rūnanga o Ngāi Tahu
