The Devil and the Deep Blue Sea
An analysis of the government framework
for the foreshore and seabed.
On the 17th December the government issued its policy framework on the foreshore and seabed.
The issue it attempts to address arose from the Court of Appeal decision in June which held that the eight Iwi at the top of the South Island could have the extent and nature of their claim to customary title and rights in the Marlborough foreshore and seabed considered by the Maori Land Court.
This quite narrow decision was dismissed by the Prime Minister who announced that steps would be taken to confirm absolute Crown title over the foreshore because it was "important to establish what has long been assumed that the beaches and seabeds have long been there for all New Zealanders". Her views were reinforced by Attorney General Margaret Wilson who announced that legislation would be introduced to "give clear expression of the Crown's ownership of the foreshore and seabed".
Their statements raised the possibility that Maori access to a Court hearing would be closed off and that rights to the foreshore and seabed would be extinguished. As a result of Maori opposition to that possibility the Crown prepared a consultation document based upon four principles -
1. The Principle of Access which suggested creating a 'public domain' to guarantee a right of access for 'all New Zealanders'.
2. The Principle of Protection which would 'enable the customary interests of whanau, Hapu and Iwi ... to be acknowledged and specific rights to be identified and protected'.
3. The Principle of Regulation which acknowledged the right of the Crown to regulate the public domain.
4. The Principle of Certainty for 'those who use and administer the foreshore and seabed'.
At a series of hui the Crown proposals and the principles were rejected by Maori.
The Crown nevertheless undertook to develop a more comprehensive policy framework and a number of government Ministers urged Maori to be patient because 'the devil was in the detail'.
They were right. The framework just released is a detailed and complex response. But it is also devilishly deceptive, inaccurate in places, and even dishonest in its basic assertion that it is 'guided by the ... feedback received during the public consultation process' because it effectively ignores the submissions made by Maori and continues to use the Principles as its base even though they were rejected by Iwi and Hapu. It is in clear breach of the Treaty of Waitangi and a gross breach of good faith.
Part One: The Access Principle
The framework retains the idea of a public domain idea as a means of guaranteeing access but renames it by inventing a new 'people of New Zealand' title.
The establishment of this title has been categorised by the government as a means of symbolising that title to the foreshore and seabed vests neither in the Crown nor Maori but rather that it exists 'for the benefit of all New Zealanders'.
A new form of customary or mana whenua title is created to recognise certain 'ancestral connections' to discrete parts of the foreshore and seabed. It will 'sit alongside' the 'people of New Zealand' title and will include activities such as the gathering of hangi stones, the recognition of wahi tapu, or various other traditional practices and usage.
Part Two: The Protection Principle
The framework outlines a means of protecting the customary title through the establishment of a Commission which will identify on a regional basis 'those that hold mana and ancestral connection'. The Commission effectively replaces the previous avenue of determining common law customary interests in Court.
The Commission will have the power to recommend to the Maori Land Court 'on where and to whom customary titles should be issued'.
The interests of a customary title holder must then be 'considered' by a 'regional council or other decision-maker' if any proposed government or other activity will have a 'significant impact' on the title. The Resource Management Act can restrict a customary activity only 'for the purposes of ensuring sustainability of the environment'.
Part Three: The Regulation Principle
The framework outlines the measures central and local government might take to regulate the use and sustainability of the foreshore and seabed.
Immediate steps will be taken to develop ''practical and specific agreements to set out how particular whanau Hapu and Iwi will be involved in decision-making processes,' including existing or customary guardianship roles. References are made to statutes such as the Resource Management act and the Local Government Act which already require consultation or the establishment of local government processes to consider Maori interests.
Part Four: The Certainty Principle
The framework suggests that certainty will be achieved because it has 'benefits for all New Zealanders'. It gives Maori 'enhanced opportunities for greater involvement in management processes' and enables the identification and protection of customary rights.
Part Five: The Devilish Deception
The government has stated that the framework offers increased protection for Maori by recognising that the customary title will 'sit alongside' the 'people of New Zealand' title.
However the framework actually divests Maori of interests held since time immemorial and effectively transfers the foreshore and seabed to the Crown under the guise of a legal fiction.
In preliminary Discussion Documents the Crown acknowledged that the process amounted to an extinguishment of Maori rights but suggested it was only a 'theoretical extinguishment' because the Commission could clarify the nature of any ancestral connection. However because the framework actually gives the Crown new powers to define what the connection is (on a regional rather than Iwi/Hapu basis), and because it also sets the parameters of the title and how it should be regulated the extinguishment is in fact very real.
The fundamental issue of how the Crown first assumed any right to extinguish Maori interests and indeed the legitimacy of that assumption is not even considered in the framework. The Crown simply asserts that it can.
As a result the Maori customary title is severely constrained in its nature and extent both in the framework and by existing and proposed legislation which means it will occupy the gymnastically challenging position of being alongside the 'people of New Zealand' title but subordinate to it at the same time.
The subordinate nature of the Maori customary title is evident in the regulatory regime proposed by the Crown.
It argues that the regulation process will acknowledge a 'working relationship' involving 'those who hold mana and ancestral connection over an area of foreshore' but stresses that the other party in the relationship will be 'central and local government decision-makers'.
Its references to legislation such as the resource Management Act as examples of such a relationship ignore the fact that in practice they allow little effective decision-making roles for Maori. The policy framework either suggests more of the same or restricts the current Maori participation even further by the limited and constraining definition of what a customary title entails. Maori are reduced to bystanders to be consulted, and if the views prove unpalatable they can effectively be ignored, as happened in the hui consultations prior to the issuing of the framework.
The framework also suggests that the 'enhanced' recognition in the new customary title is an advance upon what may have been available in common law proceedings in Court. The Court process has always been fraught with difficulties for Maori but the policy framework and the common law option both proceed from the same view that any Maori rights are necessarily subordinate to those of the Crown. There is effectively no difference.
However the effective removal of the common law option also takes away the right of 'due process' that the Crown regularly asserts is part of the 'citizenship rights' in Article Three of the Treaty. It is therefore clearly a Treaty breach and even a denial of the Magna Carta.
The Crown framework is deeply flawed and dishonest. It ignores the Maori rejection of the four principles in the Crown's original consultation document and instead constructs a complicated regime which achieves the same purpose of divesting Iwi and Hapu of title and rights as understood in tikanga and the Treaty.
Most Opposition political parties have predictably attacked the detail of the proposals but have the same will to divest Maori of the foreshore and seabed. Indeed there has been no such show of political unanimity on any Maori issues since the land confiscations of the 19th century and the parties only differ in the degree of intemperate language they use to describe the Maori position. Their unity adds credence to the many Maori statements made during the earlier consultation that the whole Crown stance was another raupatu.
Some government Ministers have suggested that the policy is far better than that which other parties might offer but that does not mean the framework is reasonable or just. It patently is not.
for Te Hau Tikanga, the Maori Law Commission