Moana Jackson   |   Foreshore and seabed information

Decoupling the Treaty and the Iwi

Summary Analysis of the Government's Final Foreshore and Seabed Legislative Framework as Released on 7 April 2004


It may be worth remembering -

1. That the Prime Minister first announced that the government would take the foreshore and seabed because it had always been "assumed" that the Crown owned it.

Yet one hundred and ten years ago a government also sought to take and remedy what it always "assumed" was the situation and passed a statute called The Validation of Invalid Land Sales Act 1894.

That Act, like the foreshore proposal, denied Maori rights and has since been incorporated into many grievance claims before the Waitangi Tribunal. It is a tragedy that this government's foreshore proposal will leave a similar legacy of grievance for our mokopuna.

2. That the Waitangi Tribunal Report on the foreshore stated that the policy breached the Treaty in "fundamental and serious ways" and that it was not prepared "to suggest changes to the details of the policy as we think changes to details would not redeem it".

The final policy framework does not redeem it nor save it from also being in fundamental breach of the Treaty. That injustice will sadly be revisited by our mokopuna too.

The main points of the injustice:

1. The final policy framework is the basis for the legislation to be introduced into Parliament on Thursday April 8. It confiscates the foreshore and seabed from Maori. As with all earlier policy statements it "vests full and beneficial ownership in the Crown".

2. It ignores all of the concerns raised by Maori over the last several months and reverts to the four principles of the government consultation document which were unanimously rejected by Iwi and Hapu.

3. Under pressure to secure the support of New Zealand First it has deleted the term "public domain" but that change makes no difference to the legislation's overriding purpose or effect.

4. It claims to meet Maori concerns that Iwi and Hapu were being denied due process or the right to be heard in court but actually creates an illusion of process that effectively delivers meaningless declarations and orders. It mocks due process by stating that Maori will effectively only get the rights they would have had if the Crown hadn't taken them.

5. It retains the idea of an "ancestral connection" and the granting of an "ancestral connection order" as evidence of an Iwi or Hapu interest in the foreshore and promotes it as a concept that is provable "in accordance with tikanga". However it recognises no consequent tikanga rights nor even an equivalence with existing common law rights.

6. Recognition of the "ancestral connection" is also promoted as a means of ensuring a "strengthened ability" to participate in decision-making but the proposed amendments to the Resource Management Act do not add anything substantive to the rights of Iwi and Hapu.

7. It also suggests that recognition of "ancestral connection" provides "for the expression of kaitiakitanga" but kaitiakitanga has been divorced from rangatiratanga and positioned as a limited role of co-management or consultation in the Resource Management Act. Indeed the policy states it will merely "simplify the process of determining who should be consulted".

8. The newly invented "customary rights or activity-based rights" are "decoupled" or separated from the ancestral connection of whakapapa and title. They only exist as limited rights in time that have to have been exercised "substantially uninterrupted" since 1840. That may be impossible in many circumstances.

9. More importantly (and dangerously) the decoupling of the rights from whakapapa neutralises them and effectively renders them as interests that are no greater than those of anyone else. The decoupling thus diminishes the status of the Treaty and tikanga and makes tangata whenua of no more substantive importance than a Rotary Club.

10. In terms of Maori identity and future potential status this is the most damaging concept in the whole proposal.

11. One consequence of the "decoupling" is the granting of the new customary rights to non-Maori, thus further diminishing the tipuna and tangata whenua place of Maori.

12. The fact that a Court order recognising customary rights can only declare them to be that "bundle of rights (which) would have amounted to a territorial customary right but for the fact that legislation vests full and beneficial ownership in the Crown" effectively makes them meaningless.

Moana Jackson
8 April 2004

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