Ngai Tahu take foreshore & seabed case to UN
16 May 2004
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FoMA Member Te Runanga o Ngai Tahu, in conjunction with Treaty Tribes Coalition, has taken their anger and dismay over the Governments handling of the Foreshore and Seabed issue to the highest international forum. Last week's address by Iwi representatives before the United Nations Permanent Forum on Indigenous Issues in New York, was met by widespread support.
Our judicial rights have been overridden by the Crown following their decision to ignore the findings of the Court of Appeal and the recommendations of the Waitangi Tribunal and the Human Rights Commission. We believe that the best option open to us now is to ensure that the international community is aware of the interference by our government in the due process of the law. The United Nations is a democratic, well-respected and dignified forum that our Government is committed to. Whilst the UN recommendations are not binding on a nation they do send a very clear and strong message regarding the actions of member states, said Tahu Potiki Chief Executive Officer of Te Runanga o Ngai Tahu.
The Permanent Forum on Indigenous Issues is a high level United Nations (UN) body mandated to report back to the UN Economic and Social Council (ECOSOC) on how the UN should work towards achieving recognition of indigenous peoples rights. Te Runanga o Ngäi Tahu presented interventions under four agenda items. The Iwi claimed cultural, economic and social development, human rights and environmental concerns are all being breached by the Governments stand on this issue.
The papers presented by Deputy Kaiwhakahaere of Te Runanga o Ngai Tahu Edward Ellison, to the Forum assert that the Foreshore and Seabed Bill arose as a result of the New Zealand government intervening in the due process of the courts. The Bill will extinguish the jurisdiction of the courts to investigate and declare extant customary property rights, it also discriminates against Mäori on the basis of ethnicity for the purposes of political expediency and it was drafted subsequent to the Waitangi Tribunal finding that the policy preceding the Bill was contrary to domestic and international human rights standards.
The Iwi states that this is a clear example of:
As a result of this situation the resolutions contained in our intervention call for New Zealands compliance with international human rights law as well as for increased monitoring of nation states compliance with the rule of law, specifically including monitoring the passage of the Foreshore and Seabed Bill in New Zealand. We hope that this intervention to the United Nations sends a clear message to the government about our concern, about the enormity of the action they have taken and about the contempt they have shown for our human rights as a result of their action regarding the Foreshore and Seabed, said Mr Potiki.
BACKGROUND ON THE TREATY TRIBES COALITION
The Treaty Tribes Coalition was formed in 1994 to represent the common commitment of its constituent iwi to the tikanga of manawhenua, manamoana in relation to the allocation to iwi of fisheries settlement assets held by Te Ohu Kai Moana. The Coalition has maintained a very active participation in that debate, in pursuit of a principled and tikanga-based outcome. As resources have allowed, it has also endeavoured to represent the interests of its constituent iwi in the development of marine environment and fisheries policy and legislation. The constituent members of the Coalition are: Hauraki Mäori Trust Board (representing the 12 iwi of Hauraki); Ngäti Kahungunu Iwi Incorporated; Ngäi Tamanuhiri Whänui Trust; and Te Rünanga o Ngäi Tahu. Treaty Tribes therefore represents 15 iwi, with over 110,000 members, according to the 2001 census. Even more significantly, for present purposes, these iwi hold manawhenua, manamoana over almost 60% of the coastline and oceans of Aotearoa me Te Wai Pounamu. All Treaty Tribes iwi have a strong and active interest, as kaitiaki of their rohe moana, in the integrated sustainable management of their marine resources. Each of the constituent iwi of Treaty Tribes considers itself, fundamentally, to be a maritime iwi, for whom the marine environment and its resources are particularly significant elements of its identity, economy and taonga tuku iho.
UN Economic and Social Council
PERMANENT FORUM ON INDIGENOUS ISSUES 3rd Session 10-21 May 2004
INTERVENTIONS PRESENTED BY
Te Rünanga o Ngäi Tahu
Supported by
PERMANENT FORUM ON INDIGENOUS ISSUES 3rd Session 10-21 May 2004
Item 4 (e) of the Agenda: Culture
Oral intervention presented by Edward Ellison, delegate of Te Rünanga o Ngäi Tahu, a collective iwi organisation of Aotearoa New Zealand.
Mihi
Te Rünanga o Ngäi Tahu, by virtue of its statutorily recognised position as the representative tribal body of Ngäi Tahu Whänui, makes this submission on behalf of the Ngäi Tahu tribal collective. Te Rünanga o Ngäi Tahu is constituted as the kaitiaki of the tribal interest through its Charter adopted on 21 August 1993. There are currently over 30,000 registered members. We are also supported by the Treaty Tribes Coalition, whose constituent iwi are 12 iwi of Hauraki (represented by the Hauraki Mäori Trust Board) Ngäi Tamanuhiri, Ngäti Kahungunu, and Ngäi Tahu. This submission is therefore supported by 16 iwi, with over 110,000 members, according to the 2001 census.
Chairperson, members and participants in the Forum, we take this opportunity to acknowledge the dedication and commitment of yourselves and those who are not represented here today, in the realisation of indigenous peoples rights. We consider it an honour to present to this body, and join with the international community who have devoted decades to the Working Group on Indigenous Populations, the Draft Declaration on Indigenous Peoples, and the establishment of this Forum.
The theme of indigenous women has impacted deeply on us all, and permanently imprinted the grave abuses indigenous women are subjected to, globally. We support the Forum, and recommendations made to it, on alleviating the position of indigenous women.
We would like to share with the Forum, the unique position of women within Mäori society. To us, women are whare tangata. But they are so in a holistic sense. The physical continuation of Mäori as a people is the most tangible responsibility, however Mäori women have always, and increasingly over the last 30 years, been sentinels of our culture, and champions of our rights.
The retention and revitalisation of te reo Mäori, the Mäori language, is in large part due to Mäori women, who galvanised support and lead the movement for kohanga reo (language nests), and who constitute the majority of our kaiäko and kaiawhina.
They have also lead, with dignity and repose the most consequential populist movements against the unjust appropriation of our ancestral lands and resources. In 1975, Dame Whina Cooper lead the Great Land March to Parliament, and Eva Rickard, in 1978 lead a peaceful occupation, and in 1984, a further hikoi to Waitangi, where our founding Treaty between Mäori and the British was signed.
A further whai wahine toa (Mäori women champion), who is fighting for our rights is Tariana Turia, a Member of Parliament, who has sacrificed her membership in our governing party for the rights of Mäori to the Foreshore and Seabed.
Our Government is intending to:
Furthermore, non-indigenous peoples will have the same rights as Mäori to go to court, and have their customary practices recognised.
We are being stripped of our status as indigenous peoples, and are facing an immediate, and to us, unparalleled threat to the retention of our culture and cultural identity in over 100 years.
We are a coastal people, who trace our origins from our homeland of Hawaiiki nui, through a great oceanic migration. For the iwi I represent today, the foreshore and seabed is as significant to us as our lands. The appropriation of it by the state represents an overt violation of our right to existence as a distinct people, with cultural and spiritual traditions that link us to the material world.
We acknowledge the preceding efforts to codify the right to cultural diversity, by UNESCO in the Universal Declaration of Cultural Diversity 2 November 2001, repeated General Assembly resolutions, notably, 55/192, 56/156 and 57/204, and the Working Groups on Indigenous Populations, and the Draft Declaration.
We aspire to domestic regime that respects and implements cultural pluralism, and an international community that realises the full meaning of cultural diversity is an ethical imperative.
However, whilst these normative standards are clear and certain, we are yet to attain their substantive realisation.
We call upon the Permanent Forum to note this case, in New Zealand, and to:
PERMANENT FORUM ON INDIGENOUS ISSUES 3rd Session 10-21 May 2004
Item 4 (d) of the Agenda: Human Rights
Oral intervention presented by Edward Ellison, delegate of Te Rünanga o Ngäi Tahu, a collective iwi organisation of Aotearoa New Zealand.
Mihi (poto)- optional, as considered appropriate.
The founding human rights instruments codified uncontested rights to:
The international decade on indigenous peoples has reinforced that these civil and political rights are also enjoyed by indigenous peoples.
The General Assembly, in support of the Decade, has called upon states to ensure indigenous peoples attain meaningful realisation of these basic, and ostensibly universal rights. (Resolution A/50/107)
In the penultimate year of the Decade, the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people conducted an expert seminar on indigenous peoples and the administration of justice.
His conclusions are that indigenous peoples do not benefit from these rights, and are subject to a multitude of objectionable breaches.
His recommendations echo the persistent reiteration of these rights that has perhaps elevated them to customary status.
In the final year of the Decade, the New Zealand State has revealed its contempt for all that has preceded.
The Foreshore and Seabed Bill, introduced into the New Zealand Parliament on 8 April 2004:
This is a clear example of:
The New Zealand State is fully cognisant of applicable human rights standards, and was explicitly found to be in breach of them by a domestic tribunal.
We will pursue the international human rights communications procedures under the Optional Protocol and the CERD Convention. But it is such a protracted process that the Bill is likely to be in force before we receive a determination from the Human Rights Committee or the CERD committee.
The Committee on the Elimination of Racial Discrimination (CERD) decisions 1 (53), 2 (54) and 2 (55), held Australia was in breach of international standards by passing its Native Title Amendment Act 1998. The New Zealand Foreshore and Seabed Bill follows this precedent and also manifests the same flagrant disregard for indigenous rights and the principles of equality and non-discrimination.
We endorse the recommendations of the Special Rapporteur from the expert seminar, and remind the Forum of his recommendation to Governments that:
We submit that the New Zealand government is endeavouring to perpetrate these abuses with impunity, due to the absence of robust, binding, arbitration mechanisms in the international arena.
We call upon the Permanent Forum to note this case, in New Zealand, and to:
PERMANENT FORUM ON INDIGENOUS ISSUES 3rd Session 10-21 May 2004
Item 4 (a) of the Agenda: Economic and Social Development
Oral intervention presented by Edward Ellison, delegate of Te Rünanga o Ngäi Tahu, a collective iwi organisation of Aotearoa New Zealand.
Mihi (poto)- optional, as considered appropriate.
We acknowledge the consistent recognition of the right to development as a fundamental human right, recognised by the General Assembly in multiple resolutions, the Commission on Human Rights, the United Nations Development Programme and the Working Group on Indigenous Populations. Further, that the right to development is conceived as a necessary corollary of fundamental human rights contained in the International Bill of Rights.
We submit to the Forum that the right to development is recognised in many nations, under the common law, and treaties and agreements with indigenous peoples, including the New Zealand State under the Treaty of Waitangi.
Consequently, we consider that the right to development is protected equally by the Treaty of Waitangi, and international human rights instruments.
The substantive content of the right is the right and power to control the direction and means of achieving social, cultural, political and economic progression. From an economic perspective, it is the right to economic sustainability deriving from the control of use and access to natural, physical and cultural resources.
However, experience has shown us that even in New Zealand indigenous peoples’ realisation of the right to development is subject to political whim, and political expediency.
The domestic Tribunal charged with inquiring into colonial practices in breach of the Treaty of Waitangi, has found that Mäori possess a right to development, deriving from:
Clearly, mirroring developments in the international arena.
In 1992, the New Zealand State recognised the right to development in a redress package for colonial practice in respect of commercial fishing.
In 2004, the New Zealand State has retreated from the principled position which led to a negotiated resolution of the fisheries issue and has decided, unilaterally, to extinguish the Maori right to development as it relates to the foreshore and seabed, by the operation of the Foreshore and Seabed Bill.
Mäori will be denied the rights to:
We submit to the Forum that this evidences the vulnerability of indigenous peoples to the political climate of the day. Further, it illustrates the dramatic oscillations in alleged legal rights that are treated by States as optional ethical considerations.
It is our opinion that the New Zealand State in particular, and many other states will continue to sacrifice the rights of indigenous peoples to political imperatives in the absence of binding international disputes settlement procedures for indigenous peoples or indigenous peoples rights being constitutionally protected, and so ensuring the sanctity of the right to development.
We support the findings of the Special Rapporteur in respect of the Expert Seminar on Treaties, Agreements, and other Constructive arrangements between states and indigenous peoples (E/CN.4/2004/111), and urge the Forum to adopt them.
We call upon the Permanent Forum to note this case, in New Zealand, and to:
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