What follows is a brief outline of the background to the foreshore and seabed issue created by Te Ope Mana a Tai. It includes a summary of the recent Waitangi Tribunal Report and the Governments Foreshore and Seabed Bill.
Background
- Foreshore and seabed is the land below the high water mark, i.e. the land that is sometimes or always covered by water – not what we traditionally think of as the beach.
- The Marlborough Sounds case was not a Treaty claim, but relied on existing legal rights under New Zealand law.
- There is a long-standing, internationally-recognised common law obligation on the Crown to respect the pre-existing property rights of indigenous peoples.
- In 1865 the Native Land Court was established to translate customary ownership into fee simple (transferable) title, and the first application relating to foreshore was made in the late 1860s.
- The immediate motivation for the Marlborough Sounds case was iwi concerns about the early 1990s marine farming boom in the Sounds:
– 100% of iwi objections to applications were rejected
– 100% of iwi applications for space were rejected.
- Concerns were brought to a head by the Crown plan to impose coastal tendering in Marlborough which would have amounted to privatising the coastal marine area.
- Ever since the June 2003 Court of Appeal decision, Maori have consistently said they have no desire to restrict public access or to sell foreshore and seabed.
Waitangi Tribunal Report
- In January, the Tribunal heard an urgent claim by 149 claimant groups over the Crown’s foreshore and seabed policy.
- The Tribunal said: The policy clearly breaches the principles of the Treaty of Waitangi. But beyond the Treaty, the policy fails in terms of the wider norms of domestic and international law that underpin good government in a modern, democratic state. These include the rule of law, and principles of fairness and non-discrimination.
- The Government has chosen to disregard the Tribunal report. Despite the Government’s spin, the policy has not changed materially since the Tribunal report.
- In relation to Article Two of the Treaty, the Tribunal said:
- The proposed new regime removes the means for property rights to be declared and effectively removes the rights themselves
- There is no overriding need for the policy in the national interest
- In relation to Article Three of the Treaty, the Tribunal said:
- The policy does not treat Maori and non-Maori equally because only Maori property rights are abolished.
- Removal of the ability of the Courts to recognise property rights is a violation of the rule of law, protection of which was guaranteed to Maori in Article Three.
The Tribunal made a number of recommendations to the Government, all of which have been generally supported by Maori as preferable to the Government’s current approach. In particular, Maori have supported the Tribunals call for the Government to enter into a longer conversation (i.e. negotiate with Maori) before moving to legislate.
Importantly, though, the Tribunal was at pains to stress that the policy was so bad that changes to the detail would not redeem it.
Foreshore and Seabed Bill
- Vests full legal and beneficial ownership vested in the Crown, extinguishing Maori rights – without investigation – for all time, without consent.
- Removes all current routes for legal investigation and protection of Maori rights, with no promise of compensation.
- Ancestral Connection Orders can be made by the Maori Land Court (MLC), but have no effect except qualifying the holder to be part of existing consultative opportunities under the Resource Management Act (RMA).
- The MLC can also make Customary Rights Orders in very limited circumstances. For example, a customary right is considered to be extinguished if it is inconsistent with a resource consent that has ever been granted for another activity.
- Customary rights relating to fishing, wildlife and marine mammals are excluded and rights can only ever be exercised at the same scale, extent and frequency as it has been since 1840.
- Non-Maori can seek customary rights orders in the High Court for activities exercised continuously since 1840. That High Court jurisdiction does not apply to Maori.
- Maori can apply to the High Court for an order that they would have been entitled to a customary title, but for this legislation, but:
- the High Court is not allowed to consider the removal of the jurisdiction under Te Ture Whenua
- The order has no effect except requiring Ministers to discuss redress with the group.
- It is a missed opportunity that the Government is not prepared to act in a principled manner and put in place a regime for recognising the full range of customary rights, including ownership.
- It is a travesty that, instead, the Government has chosen to breach human rights by proposing to deny Maori the due process of law.
- It is a farce that Maori will now have to prove in a court of law their ancestral connection to the land and sea they have inhabited for over 1000 years.
- It is a crime that the Government proposes to commit theft by extinguishing Maori rights for all time.
So what can you do?
- Make a submission against the Bill and ask to be heard by the Select Committee.
- Tell the Prime Minister and your local MP that you will not vote for any political party or individual that supports the Bill.
- Make a complaint about the Bill to the New Zealand Human Rights Commission.
- Make a financial contribution to Te Ope Mana a Tai, an iwi authority or other organisation working to oppose the extinguishment of Maori rights.
- Share this information with others.
Further information can be found on the Te Ope Mana A Tai website, www.teope.co.nz ; or from iwi authorities throughout NZ. |
