A few personal comments on the "new" foreshore/seabed policy
7 April 2004
1. The great virtue of the 1993 amendment to Te Ture Whenua Maori was that customary land was defined as land held in accordance with tikanga Maori and not by reference to English common law ideas of aboriginal title. Aboriginal title ideas start with the paramountcy of the Crown. Tikanga Maori starts with the paramountcy of rangatiratanga. Removing the right to have title to whenua investigated in accordance with evidence on tikanga is a form of confiscation.
2. The new policy waters tikanga down to a notion of ancestral connection to be defined by Parliament.
3. The new policy decouples the link between customary rights and ancestral connection. This seems to mean that mana whenua/rangatiratanga rights are divorced from whakapapa connections. This flies in the face of holistic connections based on tikanga. It seems to be to allow non-Maori groups to claim customary rights as well. This is a ridiculous distraction from the issue of tikanga entitlements.
4. Any hapu or iwi that seeks a High Court declaration on customary use based on the 1840 Rule must find evidence of continuous association in spite of the fact that Crown laws and policies imposed assimilation and individualisation policies that undermined continuous associations in many rohe.
5. Even if a hapu or iwi actually wins a case, the only remedy will be "redress" after discussion with the Government. As the Waitangi Tribunal pointed out, "redress" at the discretion of the Crown is like the current historical claims Treaty Settlements policy. "Redress" is not the same as "compensation". When property rights are taken away, then it is "compensation" that must be paid. That is, full and fair compensation for property losses and for litigation costs incurred in vindicating those confiscated property rights.