Moana Jackson   |   Foreshore and seabed information

The Crown Baselines for Legislation on the Foreshore and Seabed - An Analysis


Introduction

The government has now completed the detail of its foreshore and seabed policy.

This brief Paper analyses the policy in the context of the concerns which Maori have raised ever since the Crown decided to take ownership of the foreshore and seabed.

Those concerns fell into eight broad categories.

1. The original Crown proposals to take the foreshore and seabed from Maori were unacceptable because they were contrary to both tikanga and the common law situation accepted by the Court of Appeal.

2. The original Crown proposals were unacceptable because they denied Maori due process that is they took away the right of Iwi, Hapu or whanau to have claims over the foreshore and seabed heard in Court.

3. The original Crown proposals were unacceptable because they were in breach of Te Tiriti o Waitangi.

4. The original Crown proposals were unacceptable because they subordinated any Maori interests to the Crown and restricted them to a limited "right" of participation in local government decision-making.

5. The original Crown proposals were unacceptable because they assumed a continued Crown right to extinguish any particular Maori rights.

6. The original Crown proposals were unacceptable because they demanded that if any Maori rights were to be recognised at common law then Iwi or Hapu would have to prove that they had been exercised continuously when the taking of land and resources since 1840 has effectively made that impossible.

7. The original Crown proposals were unacceptable because they denied Maori any right of development and restricted Maori interests to a "traditional activity" which the Crown would define.

8. The original Crown proposals were unacceptable because they assumed that Maori would and had denied access to the beaches and that under any tikanga regime Maori would sell the foreshore and seabed. Both claims were untrue and damaging.

The test for the final Crown policy is whether those concerns have been met. It is submitted that none of them have been.


The Legislative Policy - Some Questions and Answers

The final policy and legislative framework is complicated and even deceptively written. It appears to offer some changes but in fact retains the basic assumptions which were contained in the original proposals that Maori have consistently rejected.


  • Does the new policy still take the foreshore and seabed from Maori?
  • Yes. It clearly vests the "full and beneficial ownership" of the foreshore and seabed in the Crown as "a public domain for the people of New Zealand".

    It takes that which Te Tiriti and tikanga clearly states belong to Maori and which the Court of Appeal at least said we have a right to claim before the courts. It continues to be a clear breach of Te Tiriti


  • Does it allow Maori due process?
  • No. It claims to allow access to the High Court and the Maori Land Court to consider questions of "customary rights" but then defines the rights in such a way that they are virtually meaningless.

    It imposes such restrictions on the rights that the access to the Courts amounts to an "undue process" of no substantive effect.

    The restrictions are outlined below.


  • Does the new policy acknowledge existing Maori rights?
  • No. It "replaces" (extinguishes) all previous tikanga, legislative, and common law definitions of our rights and invents a new concept called "ancestral connection".


  • What is "ancestral connection"?
  • A new status that Maori will have to prove in relation to "the foreshore and seabed that is vested in the Crown".

    In other words Maori have to prove a connection to something which the Crown says we no longer have.


  • How do Maori have to prove "ancestral connection"?
  • Before the Maori Land Court and "according to tikanga", or "by agreement between Maori and the Crown".

    If the foreshore has already been taken from Iwi or Hapu (as most of it has) the connection may not be able to be proved.


  • What is the point of the "ancestral connection"?
  • Maori will need to prove the connection and gain an "ancestral connection order" in order to participate in local government decision-making under the Resource Management Act.

    The recognition of an "ancestral connection" will be "progressed separately" from other matters but it appears that the connection will also need to be proved if Iwi and Hapu are to argue for the new "customary right" that the legislation creates.

    If there is no connection there is no right.


  • What is the new "customary right"?
  • It is a right limited and connected to those "traditional activities" that have "continued to be undertaken, substantially uninterrupted, in accordance with tikanga from 1840 to the present".

    If the right has been interrupted or the activities cannot be proved the right does not exist.

    Recognition of the right will enable Maori to continue undertaking the "traditional activities".

    The "traditional activities" appear to be limited to activities such as "taking hangi stones".

    The right does not include a right to development.

    It is meant to be determined by the Court "having regard to tikanga" but the "uninterrupted test" and the notion of "connection" means that the right is less than that normally recognised under both international law and the common law, and is certainly much more restricted than any pre-existing tipuna rights our people exercised according to our self-defined tikanga and tino rangatiratanga.


  • Does the right mean Maori have a customary title to the foreshore and seabed?
  • No. The policy states that those who have a right may seek a declaration from the Court that "they would have been entitled to hold aboriginal title to an area of the foreshore and seabed had the full beneficial ownership not been vested in the Crown".

    In other words the Court can give you a certificate saying you would have had a title if the Crown hadn't taken it.

    The title and the right are effectively meaningless fictions.


  • Can the new customary right be extinguished by the Crown?
  • Yes. The Crown retains the right to take away the right that it has invented.


  • Is it true that the legislation will "give Maori greater rights than they had before"?
  • No. It only acknowledges some existing limited opportunities for participation or consultation under the Resource Management Act.

    The total effect is to give Maori a lesser status because the "rights" it purports to give have no real effect.


    Summary:

    The policy framework does not satisfy any of the concerns Maori have expressed over the last several months.

    Instead it creates a confusing and deceitful structure that offers less than we have ever had.

    It maintains the assumption that our rights can be unilaterally extinguished and perpetuates a gross injustice.

    Moana Jackson
    1 April 2004


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