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A submission on 'Government Proposals for Consultation: The Foreshore and Seabed of New Zealand' from Anne Wells.

"Whatever may have happened in the past and whatever the future may bring, it remains the sacred duty of the Crown today as in 1840 to stand by the Treaty of Waitangi; to ensure that the trust of the Maori people is never betrayed." Quoted from a speech by Queen Elizabeth II, at Waitangi 1963.

1. Introduction

I am fifth generation Pakeha whose family has been able to settle in Aotearoa / New Zealand because of the agreement made by Hapu and Iwi and the British Crown representatives under Te Tiriti O Waitangi preamble and articles. Early settlers to this country, and also subsequent settlers including my own, were welcomed by Tangata Whenua so I consider that to live in this country, all citizens need to understand and honour this agreement, as do NZ governments. So I believe that the above statement made by the Queen 40 years ago is just as valid now.

Te Tiriti o Waitangi reaffirmed a right and authority which Maori had exercised for centuries before 1840, and also reaffirmed in the Declaration of Independence. Ever since 1840, Iwi and Hapu have claimed that the foreshore and seabed fall within their exercise of tino rangatiratanga (Article Two). However the Crown, under successive governments, have assumed absolute authority or sovereignty (Article One) and now are assuming the ownership of the foreshore and seabed, despite Maori following the due process of the law through court cases to redress protection guaranteed by Article Two.

This year, the Court of Appeal decided that eight Iwi in Marlborough could have their claim to their stretch of foreshore and seabed heard in the Maori Land Court. So it is of great concern that the right to ‘due process of law’ under common law is not only denying Iwi their customary rights, but sets a precedent for the denial of their, and others, rights to the protection of law (Article Three). The Crown has also assumed an overarching power with public institutions, and the ability to legislate / extinguish rights.

2. The proposals

In view of the above statements, I am opposed to this Labour Government’s recently published proposals as:-

a) They would extinguish the rights and rangatiratanga of Hapu and Iwi guaranteed under Article Two of Te Tiriti o Waitangi. Hapu and Iwi had for centuries been Tangata Whenua of this land, and were part of who they were by whakapapa, tikanga and by tupuna title - that is absolute title, not ‘ownership’, a European concept. This had been constitutionally protected under the Declaration of Independence in 1835 and subsequently Te Tiriti o Waitangi, Article Two, signed in 1840. In addition, the foreshore and seabed are whenua rangatira (related to the land).

b) Aotearoa / New Zealand as a nation was founded by a treaty between Hapu and Iwi and the Crown, and it is essential that Te Tiriti is truly honoured and a relationship based on a true partnership established - not just consultation. The proposal is a breach of the Treaty and is actually a significant constitutional change and should be recognised as such.

c) They are a continuation of the Crown assuming absolute authority, subordinating indigenous rights, and perpetuating the notion of its right to re-define or extinguish tupuna title.

d) This Government has stated that it is committed to compensating the past wrong actions of the crown and to reaching settlements in ‘good faith’ but this proposal will create new injustices and grievances for Hapu and Iwi.

e) The right of access to beaches, foreshores and lakes etc for all is being extinguished by the continual sale of land to foreign investors and private owners. The proposals will continue a discriminatory practice favouring private owners.

f) They will also breach human rights guaranteed under common law and the Magna Carta. It is certainly not acting under the Articles nor the spirit of Te Tiriti, so is divisive and not in the national nor public interest.

g) The process chosen to consider these proposals by the Government in its role as the Crown and Treaty partner has been arrogant and inadequate. Will the opinions of Hapu and Iwi, who have clearly opposed these proposals, and their suggested solutions, be listened to and acted on?

3. Consideration of issues

a) Certainty - there needs to be constitutional certainty in asserting the authority given to Hapu and Iwi by honouring Te Tiriti o Waitangi. This would prevent future grievances;

b) Protection - again there needs to be protection of tupuna rights and the absolute authority of tino rangatiratanga under Te Tiriti o Waitangi, not extinguishing the customary rights and title (compensation for extinguishing rights and title is not acceptable and confuses the issue, though compensation for past denials of tupuna title and rights must continue);

c) Regulation and Access - can be achieved by Iwi and Hapu determining how to establish rules and regulations to achieve access. Iwi and Hapu already have structures to do this. The Crown assuming exclusive title to the foreshore and seabed to guarantee free access for everyone, ignores the fact that under Maori law covenants of use, and therefore access, are always negotiated. The Crown is also assuming that Iwi and Hapu will sell foreshore and seabed - but this is held collectively, excercised according to tikanga and not traded. Maori have maintained, and still maintain, that honouring their rights under Te Tiriti will not exclude public access, so long as there are guarantees that sacred areas such as wahi tapu will be respected.

4. Ways forward

a) the Government to listen and act on solutions and proposals of Hapu and Iwi - ‘one solution’ to fit all may not be the best way forward;

b) take time to continue the discourse of ways to honour Te Tiriti o Waitangi and its constitutional status for the benefit of all citizens;

c) link and strengthen existing legislation, such as the Local Government Act 2002 and the Resource Management Act, also the Waitangi Tribunal and the Maori Land Court.

5. Conclusion

I reject the proposals and any proposed legislation, as they are fundamental constitutional changes that affect the 'full and exclusive' authority that is protected under Te Tiriti o Waitangi. A true and equal partnership / relationship based on Te Tiriti must be developed, so that Iwi and Hapu can establish how to do this, preserving their rangatiratanga and public access to the foreshore and seabed for all. Previous Labour Governments have made significant changes by establishing the Waitangi Tribunal for example - I’m sure they can achieve solutions now!

Anne Wells,
1 October 2003

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