Panic on the beach
The debate on the foreshore and seabed has dominated Maori concern in recent weeks but the context and history of the issue itself have been lost in what seems an often sordid alliance between points scoring politicians and the media. As with so many other things of concern to Maori they have encouraged a moral panic and a sense of outrage among many people which has resulted in the debate being drowned out in the sloganising of sound bites and protest marches.
The issue itself is very simple. At one level it arose from a unanimous decision of the Court of Appeal which allowed eight Iwi to take a case to the Maori Land Court to determine the extent of what is called customary rights and title. In that sense it was simply a matter of allowing Maori the right of due process to have an issue heard in Court. At another level it is simply a reaffirmation of rights which were preserved in the Treaty of Waitangi and which were never given away.
However the response has been both intemperate and ill-informed. Politicians who always seem willing to criticise any Maori initiative and who use the race card to attract votes immediately began warning of grave dangers to the ‘right of all New Zealanders’ to go to the beach. The fact that Maori had never said anything about blocking access, or that many areas of the foreshore have already been closed by other private landowners, marinas, and exclusive subdivisions suddenly became irrelevant. Maori were the villains, and the ability to have a claim tested in court became a ‘race-based’ right that signalled apartheid. Parliamentary questions were obsessed with the great tradition of barbies on the beach and children building sandcastles as if Maori were threatening to drive the innocent from the surf. The National Party even rushed out billboards paid by the taxpayers declaring that the beaches belonged to everyone. It has been an irresponsible display of racially-motivated scorn and untruth.
As usual most sections of the media have covered the issue with the same kind of agenda as the politicians. They have shown not just a similar willingness to play to racial fears dressed up as a concern for equality but have also displayed an appalling ignorance of the issues that were before the court. They blithely confuse Western concepts of ownership with the collective title derived from the ancestors (what many Iwi call ‘tupuna title’) or position the issue alongside all the other instances which they gleefully uncover of supposed Maori greed and lack of accountability.
The government has tried to paint itself as the holder of the reasonable middle ground and has accused the other parties of creating racial tension. However the Discussion Paper it has released to resolve the issue as a win-win situation effectively creates a no-win situation for Maori. It suggests that all foreshore areas become a "public domain" which neither the Crown nor Maori will own. However it also claims a Crown right to regulate the ways in which the foreshore will be protected and managed which are normally powers reserved to the owners of any property. It also advocates establishing a new division of the Maori Land Court to adjudicate on matters of common law customary title but also says it will prevent the Court from granting any kind of title from which the rights normally arise. The government is therefore effectively diminishing the rangatiratanga of Iwi and Hapu. It is also clinging to colonial law constructs which defined customary interests as necessarily inferior to those of the colonising Crown. In a very profound way it is reaffirming the old assumptions that because Indigenous Peoples were inferior then so were their rights. That it is prepared to do this in the 21st century makes a mockery of its claims to be a good faith Treaty partner.
At a Parliamentary briefing prior to the release of the government proposal Michael Cullen announced that the crown was prepared to back away from its notion of ownership and Maori should do so too. Unfortunately its idea of backing away is to simply redefine the notion of ownership control. And because the "ownership" that Iwi and Hapu claim is an inherent part of our rangatiratanga which has been gifted to us by the ancestors for the benefit of those yet to come. It is therefore actually much more difficult for Maori to redefine or back away from it because to do would be to give up the whakapapa that makes us unique. It is at that fundamental level that the foreshore issue is far from being resolved.
This article was published in Mana magazine, September 2003; you can subscribe to Mana here.