Foreshore and seabed information   |   'Race', 'Privilege', and 'The Treaty'

Foreshore and seabed information
The Foreshore and Seabed Bill 2004

Update: the closing date for written submissions on the Foreshore and Seabed Bill has now passed. The information on this page may be useful if you are going to make an oral submission to the Select Committee; or if you want to find out more about the legislation. Submissions on the Bill are available on this page.

Kia ora,

If you have not already written a submission on the Foreshore and Seabed Bill, please act on this now - it need not take more than a few minutes of your time.

It is extremely important that Pakeha / Tauiwi who are opposed to the legislation because it is unfair, unjust and unnecessary make a submission on the Bill. Most government, and other, politicians and the mainstream media persist in presenting principled opposition to this Bill as coming only from Maori, despite the evidence to the contrary - your submission will help to demonstrate that this is not the case. The deadline for submissions is 12 July 2004.

There are five main sections below:

  • Making a short submission;
  • An overview of the Foreshore and Seabed Bill 2004;
  • An overview of the issues arising from the Bill;
  • Links to more resources and information; and
  • Some guidelines for making a submission, and contact details for the Select Committee.
  • It is useful for our work (and the archives on the opposition to the Bill) if you could email a copy of your submission to Peace Movement Aotearoa or post to PMA, PO Box 9314, Wellington, or fax 04 382 8173. As with submissions on the August 2003 foreshore and seabed policy, we are planning to make some submissions on the Bill available on the foreshore and seabed submissions page - when you send a copy of your submission, please indicate if it can be made publicly available on that web page, or if it is for our information only.

    Making a short submission

    Your submission can be as short or lengthy as you wish. If you don't have a lot of time to put your submission together, a letter of two or three sentences would be sufficient to register your views - simply say that you are opposed to the Foreshore and Seabed Bill because it is unjust / unfair / unnecessary / discriminatory / confiscatory / a demonstration of colonial arrogance which you cannot support / or however you choose to describe it; that it should be scrapped, and instead the government should go back to the drawing board and engage in proper negotiations with Maori about the way forward as recommended by the Waitangi Tribunal.

    Alternatively you could focus on one or two points that are particularly important to you, points you may wish to include are outlined in Section 3 An overview of the issues arising from the Bill below. For information on where to send your submission, see Section 5.

    If you would like to send a postcard submission, Aotearoa Educators have recycled Labour Party promotional postcards so they have a submission on the reverse side - you simply fill in your details, add a stamp and post. If you would would like one or more of the postcards, please email with the subject heading ‘FSB Postcards’, include the number you require and where to post them to.

    An overview of the Foreshore and Seabed Bill 2004

    As the Foreshore and Seabed Bill is a complex piece of legislation which changes the jurisdiction of the Maori Land Court, the Maori Appellate Court, and the High Court, and makes significant amendments to existing legislation including Te Ture Whenua Maori Act and the Resource Management Act, this section provides a brief overview of what the Bill does. For detailed analysis of the Bill, see Links to more resources and information.

    The Bill vests ownership of the foreshore and seabed in the Crown and allows it to be sold by an Act of Parliament. It does not affect those areas of foreshore and seabed, or adjacent land, in private ownership. The Bill extinguishes Maori customary title and replaces it with an essentially meaningless set of new ‘rights’, which are tightly defined and restricted in a way that will make them difficult to prove. The burden of proving these ‘rights’ will fall on iwi, hapu and whanau. Any ‘right’ which has not been documented by 31 December 2015 will cease to be recognised.

    There are three ways in which the newly created ‘rights’ will be recognised:

    a) Ancestral Connection Orders - these will fall within the new jurisdiction of the Maori Land Court. An Order may be made by the Court only if it "is satisfied that the order will apply to an established and identifiable group of Maori - a) whose members are whanaunga; and b) that has had since 1840, and continues to have, ancestral connection to the area of public foreshore and seabed specified in the application." (Section 39). The Court must have regard to tikanga Maori when exercising its jurisdiction. If there are overlapping interests in a particular area, multiple orders can be made. Appeals on decisions relating to an Ancestral Connection Order are to be made to the Maori Appellate Court.

    Ancestral connection agreements may also be reached in the process of a Treaty settlement. An Ancestral Connection Order is said to lead to greater Resource Management Act participation for the holder, but in fact the amendments being made to the Resource Management Act by the Bill only duplicate the consultative requirements that already exist in the Act. There thus appears to be no practical effect, use or value associated with these Orders.

    b) Customary Rights Orders - jurisdiction will be given to both the Maori Land Court and the High Court to hear and determine applications for customary rights orders. Appeals on decisions of the Maori Land Court relating to Ancestral Connection Orders are to be made to the High Court, rather than the Maori Appellate Court. Curiously, in the case of a customary rights order (or an Ancestral connection order) made by the Maori Land Court, the Crown may lodge an appeal whether or not it was a party to the proceeding which led to a decision it is "dissatisfied" with.

    With respect to an application for a customary rights order made to the Maori Land Court, the Court may not inquire into any application that relates to an activity, use or practice which is covered by the Treaty of Waitangi (Fisheries Claims) Settlement Act, ie a commercial and non-commercial Maori fishing right; or is restricted, regulated etc under the Wildlife Act or the Marine Mammals Protection Act. This apparently precludes recognition of any customary right which relates to fauna or flora.

    Furthermore, a customary rights order can only be made where the Court is satisfied that: "1)a) the order applies to an established and identifiable group of Maori whose members are whanaunga; and b) the activity, use or practice for which the applicant seeks a customary rights order - i) is, and has been since 1840, integral to tikanga Maori in relation to the group of Maori; and ii) has been carried on, exercised, or followed in a substantially uninterrupted manner since 1840 in accordance with tikanga Maori, in the area of the public foreshore and seabed specified in the application; and iii) continues to be carried on, or exercised, or followed in the same area of the public foreshore and seabed in accordance with tikanga Maori; and iv) is not prohibited by any enactment or rule of law; and c) the right to carry on, exercise, or follow the activity, use, or practice has not been extinguished as a matter of law." (section 42).

    Section 42 then goes on to elaborate ways in which an activity, use or practice may have been prevented from being carried out "in a substantially uninterrupted manner"; if any of these apply, the activity, use or practice is not only excluded from consideration by the Court, but deemed to have been legally extinguished. The ways in which a group has been prevented from carrying out an activity, use or practice (or had their carrying out of such interrupted) are primarily to do with past governments actions - ie confiscation, seizure, reclamation of a coastal area, or the vesting of the title in someone else. So for example, if land was unjustly confiscated in the past, the Bill will prevent the whanau, hapu or iwi thus affected from pursuing any customary rights order - what can only be described as heaping injustice on injustice.

    If a group is actually able to obtain a customary rights order given the above restrictions, they will then be permitted to carry on the activity, use or practice, only at the same scale and frequency with which it has been carried out since 1840. Protection of recognised customary activities will be assigned the status of "national importance" (one of the amendments to the Resource Management Act made by the the Bill), along with the provision that subsequent resource consents should not prevent, nor have a significant adverse effect on, recognised customary activities. However, the decision as to whether or not something is likely to have a significant adverse effect is made by the consent authority, not by the holder of the customary right order; and the customary right is subject to limits imposed by the Minister of Conservation if s/he considers it to be necessary.

    With regard to the jurisdiction of the High Court to consider applications for Customary Rights Orders, the provisions relating to this are similar to that outlined above, except that the High Court cannot inquire into any application which is able to be considered by the Maori Land Court. Rather than reference to a "Maori group" and "tikanga Maori", the relevant sections of the Bill refer to a "group", and the activity, use or practice must be "integral to the distinctive cultural practices of the group". It is not clear why these provisions have been added to the Bill, nor to whom they would apply. What is clear is that they have no precedent in any international jurisprudence on customary rights, which are a common law concept solely applicable to indigenous peoples.

    c) Territorial Customary Rights Declaration - also to fall under the jurisdiction of the High Court is the provision that a "group" can apply to the High Court for a declaration that: ... "the group (or any members of that group) would, but for the vesting of the full legal and beneficial ownership of the public foreshore and seabed in the Crown by section 11, have held territorial customary rights to a particular area of the public foreshore and seabed at common law." The test to be applied by the Court is that it is a "collection of rights that, until the commencement of this Act, - a) would have been recognised at common law as customary rights, customary title, aboriginal rights, aboriginal title, or as rights or titles of a similar kind; and b) would have amounted at common law to a right to exclusive occupation and possession of a particular area that is included in the public foreshore and seabed." (Section 28).

    If the High Court makes such a finding, it must refer the finding to the Attorney-General and Minister of Maori Affairs, who must enter into discussions with the relevant group to consider any redress that the Crown ‘may’ give. There is no avenue for appeal should an application for a declaration be turned down by the High Court; and no means of guaranteeing that any redress will be given.

    This somewhat bizarre provision is a metaphor for the whole Bill - a surreal pretence of protection of ‘rights’, which on examination is only about legislating to take away from Maori what is rightfully theirs.

    An overview of the issues arising from the Bill

    This section provides an overview of some of the issues arising from the Foreshore and Seabed Bill; more detailed information on these, and other, points is available in Links to more resources and information.

  • The Bill is a fundamental and serious breach of Treaty of Waitangi
  • It has been obvious from the initial government reaction to the Court of Appeal Ruling, that their response would be an extraordinary breach and dishonouring of the Treaty of Waitangi by the Crown. The detail of the Bill is a grotesque mockery of the tino rangatiratanga of iwi and hapu which was reaffirmed in the Treaty. It places a tremendous burden on iwi and hapu in terms of time, effort and money to prove that they have ‘rights’ which are substantially less than those held by them for centuries before 1840 and which were guaranteed to them in the Treaty.

    The Waitangi Tribunal Report on the Urgent Hearings into the Crown's Foreshore and Seabed Policy (WAI 1071) stated that the policy breaches the Treaty of Waitangi in "fundamental and serious" ways that give rise to "serious prejudice".

    In relation to Article II, the Tribunal concluded that historically the Crown's assumption of ownership and failure to deal with Maori claims to ownership of the foreshore and seabed was in breach of the Treaty; and the proposed new regime removes the means whereby property rights can be declared and in effect removes the rights themselves. There is no overriding need for the foreshore and seabed policy.

    In relation to Article III the Tribunal found that the policy fails to treat Maori and non-Maori citizens equally because the only property rights abolished by the policy are those of Maori; and that the removal of the ability of the courts to further define, articulate, and award property rights to the foreshore and seabed is a violation of the rule of law, the protection of which was guaranteed to Maori.

    They also found that ... "the policy fails in terms of wider norms of domestic and international law that underpin good government in a modern, democratic state. These include the rule of law, and the principles of fairness and non-discrimination."

    The Tribunal did not seek "to suggest changes to the details of the policy, as we think changes to details would not redeem it." Their "primary and strong" recommendation to the government was that they should "go back to the drawing board and engage in proper negotiations [with Maori] about the way forward".

  • The Bill violates human rights protected in domestic legislation
  • The Bill violates human rights protected by the NZ Bill of Rights Act (1990) - freedom from racial and other discrimination, rights of minorities to enjoy their culture, and the right to justice; and by the Human Rights Amendment Act (2001) - freedom from racial and other discrimination.

    The Bill is clearly racially discriminatory as it affects Maori only. It privileges one form of ownership above another, and treats the associated rights very differently - those who currently have private title to areas of the foreshore and seabed will not be affected by the Bill, and there has been talk of moving their property into Crown ownership in the future through negotiation and compensation. In contrast, the approach to customary title is confiscation and extinguishment. Negotiation is the usual way one party to a Treaty behaves towards the other, and yet private owners get this treatment while iwi and hapu do not.

    Even the Attorney General’s woefully inadequate report to parliament on whether or not the Bill is consistent with the Bill of Rights Act found a prima facie case for racial discrimination. Although she then decided that this discrimination “can be demonstrably justified in a free and democratic society” (Section 5); the test of whether or not a less discriminatory or non discriminatory means by which the government’s objectives could be achieved was not satisfactorily applied in her report. It is clear that the government did not consider any less discriminatory alternatives to this legislation - they announced directly after the Court of Appeal ruling that they would extinguish customary title, and they have moved inexorably towards that point ever since. That no real consideration was given to any alternative was confirmed by Michael Cullen at a public meeting in Wellington on 1 June; interestingly he appeared to be of the opinion that the only alternative to the legislation was private ownership of the foreshore and seabed.

    And there clearly are alternative ways forward which the government cannot claim to be unaware of - at every one of their 'consultation' hui last year, iwi and hapu around the country proposed other ways to respond to the Court of Appeal ruling. As but one example, Ngati Kahungunu said: “If as the government suggests, its main concern is the protection of access and the need to prevent sale there are clear precedents in our law and tikanga in which covenants of access and non-saleability might be negotiated in each rohe to ensure that the domain is effectively used in ways that are consistent with tikanga. In that process we would also expect the Crown to require similar covenants of access and non-saleability from Pakeha owners of lands adjoining the foreshore and seabed.” A fair, reasonable alternative there which does not discriminate against anyone.

  • The Bill violates human rights protected by international standards and conventions
  • Among the human rights protected by international standards and conventions which are violated by the Bill are those articulated in the 1948 Universal Declaration of Human Rights (UDHR), the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) ratified by NZ in 1972, and the International Covenant on Civil and Political Rights (CCPR) ratified by NZ in 1978.

    The UN Human Rights Committee monitors compliance with, and breaches of, the provisions of CCPR; and the Committee on the Elimination of Racial Discrimination monitors compliance with, and breaches of, ICERD. Both Committees apply their respective conventions to the human rights and fundamental freedoms of indigenous peoples.

    It is clear that the Bill violates basic human rights including: the right of access to, and protection of, the law; the right to own property and not be deprived of it; the right to freedom from racial discrimination; the right to development, the right to self-determination, and the right of indigenous peoples to enjoy their own culture.

    Some of the themes which emerge in the jurisprudence of the two Committees referred to above are particularly relevant to any consideration of the Bill: it is not acceptable to provide certainty for the majority at the expense of an indigenous minority; decisions directly relating to indigenous peoples rights and interests should not be taken without their informed consent; solutions must be found which are acceptable to indigenous peoples; current developments must be considered in the context of historical inequities; cultural values and belief systems are as defined by those in a particular culture, not by others; and that protection for the traditional means of livelihood of indigenous peoples does not mean they are restricted to traditional ways of doing things, but also includes the use of modern technology.

    You may wish to remind the Select Committee of the crucial importance of protecting human rights as laid out, for example, in the preamble of the UDHR: "Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law".

  • The Bill does not guarantee public access and local ownership
  • By putting the foreshore and seabed into Crown ownership and providing for the sale of foreshore and seabed by an Act of Parliament, there is really no guarantee of public access nor local ownership. Governments have regularly permitted exploitative commercial enterprise and government agencies to block public access to foreshore and seabed areas. Governments have had no apparent difficulty in allowing the sale of foreshore and seabed, or the land adjacent to it, into private and foreign ownership in the past.

    The current government was perfectly happy to allow the sale of Young Nick's Head / Te Kuri a Paoa to a foreign owner in August 2002 - it was only the campaign lead by Ngai Tamanuhiri which eventually put sufficient pressure on the government to stop the sale of some of the most culturally significant areas. And of course, the restrictions on foreign investors are currently being relaxed ...

    In contrast, iwi and hapu representatives at the government’s ‘consultation’ hui, the Waitangi Tribunal hearings, and in other forums, have said that covenants of access and non-saleability, consistent with tikanga, could be negotiated in their respective areas - what better way could there be to guarantee both public access and local ownership?

  • The Bill highlights the lack of checks and balances on parliament
  • When the Court of Appeal ruled in Ngati Apa et al that the nature and extent of Maori common law ‘customary rights and title’ could be investigated by the Maori Land Court, government politicians immediately announced they would introduce legislation which would extinguish customary title - they would use the power of parliament to overturn a Court of Appeal decision they did not like. This highlighted again the unsatisfactory nature of NZ’s constitutional arrangements where there are no effective checks and balances on parliament’s power.

    The Treaty of Waitangi is not honoured and is repeatedly breached by governments in search of the popular vote. Successive governments have willingly entered into other international agreements, such as those which require them to protect the rights of foreign investors and multi-national corporations, and accept that those treaties are legally binding, while failing to give effect to the Treaty of Waitangi which predates them all - and to add insult to injury, refer to the Treaty as the “founding document” of the nation.

    There is no "effective remedy" (as required by international conventions) for human rights breaches - the fact that the Attorney-General, a politician, reports on whether or not legislation is consistent with the Bill of Rights Act and that this is considered sufficient is but one illustration of this. The government of the day can basically do what they like, and there is no means by which those affected by unjust legislation can have it overturned. This situation was summed up by the Waitangi Tribunal when they said they accepted the government had the right to pass legislation based on their foreshore and seabed policy, but the real issue was whether it was right for them to do so.

  • The Bill takes away one path to correct an historical injustice and overrides common law
  • The Court of Appeal ruling restored to Maori (albeit only temporarily it now seems) the possibility of pursuing common laws claims to the foreshore and seabed through the Courts - a possibility that had been denied to them since the Crown suspended the jurisdiction of the Native Land Court to investigate customary rights to the foreshore and seabed within the Auckland province in 1863; a jurisdictional bar which was extended to cover the whole country by subsequent legislation. Maori have thus been prevented by successive governments since then from having legal recognition of their title and rights in the foreshore and seabed.

    Common law, developed over centuries by judges basing their decisions on legal precedent, is considered to be an important part of any legal system based on English law. While the doctrine of native or customary title and rights in common law is an inadequate reflection of, and protection for, the tino rangatiratanga of iwi and hapu reaffirmed in the Treaty of Waitangi, it is the way in which legal recognition of that title and those rights is given effect under colonial legal systems. The Foreshore and Seabed Bill overrides and rewrites common law and blocks access to the courts for those iwi and hapu who wish to pursue a common law claim.

  • The Bill is a particularly mean-spirited way of codifying culture
  • It seems that when the government was putting this legislation together, they sought advice on the approach taken by governments overseas, in particular Canada and Australia. What they have put in the Bill goes beyond the least generous way in which ‘customary rights’ are codified and restricted in other jurisdictions. It is difficult to see how culture can ever be adequately defined by statute, or by politicians - culture is not owned by them in any instance; and certainly they have no authority to define tikanga Maori.

    Culture is constantly evolving; it is qualitative, not quantitative; it is not something that is amenable to codification. If the government is of the view that they simply must codify culture, then the current test in Te Ture Whenua Maori Act - “held in accordance with tikanga” - is surely adequate, and there is no need for further restrictive definition.

  • The Bill freezes cultural practices in time
  • The provision in the Bill that whanau, hapu and iwi will have to prove that a customary right existed in 1840 and continues substantially uninterrupted to the present day (regardless of whether or not the exercise of that right was actually prevented by confiscation or other unjust measures taken by others) is an unacceptable fossilising of rights, an archaic view of culture.

    Cultural beliefs, customs and practices do not freeze and remain unchanged through time. This kind of restrictive test would simply not be acceptable to, nor inflicted on, anyone else - try for a moment to imagine having your cultural beliefs, customs and practices all defined and restricted by legislation, and having the right to exercise them contingent on your proving their 1840 origins. It simply does not make sense. It is also contrary to Treaty and international human rights jurisprudence.

  • The Bill repeats the mistakes of the past
  • There is no doubt that this Bill amounts to a confiscation, no different from the confiscations inflicted by colonial administrations in the past. Yet the harm caused by those past confiscations has been acknowledged in recent years, apologies have been made, and settlements have been negotiated in recognition of those historical injustices. It is beyond belief that the current government is set upon repeating the mistakes of the past in such a blatant manner. If this Bill is passed, a massive injustice will have been perpetrated, and a source of substantial conflict and justified grievance into the future will have been created.

  • The Bill should not proceed
  • Given the substantial and serious problems with the Foreshore and Seabed Bill, really the only recommendation to the Select Committee which makes any sense is that the Bill should not proceed. It is clear that a fair and durable resolution may take years, possibly decades to sort out - but that is not a problem. Far better to take the time to sort this in a just way which will last, than to push through this unfair, unjust and unnecessary legislation.

    It is equally clear that the implementation of any foreshore and seabed policy needs to be situated within a broad-based process of constitutional change in which the government negotiates with iwi and hapu as equal parties to the Treaty of Waitangi - that really is the only positive way forward.

    Links to more resources and information

    There is a substantial amount of information available on the Foreshore and seabed information page. We have put together this online summary with links to articles and papers under topic headings to make it easier to identify specific resources.

    Below are links to: Resources which cover all or most of the issues; Analysis of the Foreshore and Seabed Bill; Treaty of Waitangi breaches; Human rights violations; No guarantee of public access and local ownership; Liberal democracy, the separation of powers and judicial activism; The Court of Appeal ruling and common law; Pakeha responses to the confiscation of the foreshore and seabed; Ways forward; Resources for Christians; and Links to more submission guides.

    If you know of other useful resources which can be added to this summary, please send the details to Peace Movement Aotearoa as we will continue to add resources here to provide information for people preparing oral submissions.

  • Resources which cover all or most of the issues
  • Analysis of the Foreshore and Seabed Bill
  • Treaty of Waitangi breaches
  • Human rights violations
  • No guarantee of public access and local ownership
  • Liberal democracy, the separation of powers and judicial activism
  • The Court of Appeal ruling and common law
  • Pakeha responses to the confiscation of the foreshore and seabed
  • Ways forward
  • Resources for Christians
  • Links to more submission guides

  • Some guidelines for making a submission, and the contact details for the Select Committee

    To maximise the chances of the Select Committee considering your submission, it is best if you can present it neatly - typed or tidily handwritten, with well spaced margins on both sides of the paper, spacing between each paragraph, and single-sided. Make your points as clearly as possible. If you are referring to other documents, either include quote/s and the source, or a copy of the original document. Including headings and numbering the paragraphs (as well as the pages) helps to make it easier to read.

    To have your submission accepted, you must include your name and address. It would be useful in submissions on this Bill to say that you are Pakeha / Tauiwi / a (whatever) generation New Zealander / European or however you describe yourself.

    If you are making a submission on behalf of an organisation or group, it is useful to say what your position is within the organisation, include an overview of the aims or work of the group, the number of people in it and so on.

    You can state that you wish to make an oral submission to the Select Committee in your town or city - remember to include your daytime telephone number if you have said this. Oral submissions are the opportunity to expand on one or more points in your submission, and to talk about points on the Foreshore and Seabed Bill which are not covered in your written submission.

    The deadline for submissions is Monday, 12 July 2004. If you need more time to prepare your submission, please contact the Clerk of the Committee as soon as possible to discuss an extension.

    This particular Select Committee requires 25 copies of each submission - if you cannot afford the copying cost, or do not have access to a copier, please contact the Clerk of the Committee and ask if you can send one copy. If you only send one copy of your submission, the Select Committee may refuse to consider it unless you have arranged this with the Clerk before you send it.

    If you want to send your submission by email, please contact the Clerk of the Committee and check if this okay before you send it. If you send your submission by email without first checking with the Clerk, the Select Committee may refuse to consider it.

    Submissions should be posted to: Fisheries and Other Sea-related Legislation Committee Secretariat, Room 9.12a, Bowen House, Parliament Buildings, Wellington. Please note that you should use a stamp when posting your submission, freepost to parliament only applies to letters to MPs, not to Select Committees.

    The Clerk of the Committee is Miles Reay - tel (04) 471 9043, fax (04) 499 0486, email or email.

    Have your say: Foreshore and Seabed Bill is the official call for submissions on the Bill, and there is a link from that page to Parliamentary Service's guide to making a submission to a Select Committee.

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