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A submission on 'Government Proposals for Consultation: The Foreshore and Seabed of New Zealand' from the Justice Peace and Development Commission.

2 October 2003

I am writing on behalf of the Justice Peace and Development Commission of the Catholic Archdiocese of Wellington in response to the call for public submissions on the Government's intention to legislate to protect access and customary rights to the foreshore and seabed. Members of the Commission are appointed by the Catholic Archbishop of Wellington. Its role is to assist the Archbishop in promoting Catholic social teaching within the archdiocese and encouraging Catholics to work for justice, peace and development.

We understand that the current situation arose because iwi in Marlborough felt excluded from the development of the foreshore and seabed by the actions of the local authority. Their case was heard by the Court of Appeal which decided that the Maori Land Court could hear claims of ownership based on customary rights, although the Court of Appeal considered it would be difficult to achieve title. The Government took the decision that it is no longer appropriate to argue these issues through the courts and decided to develop new legislation.

Ownership: A Catholic view

A fundamental premise of Catholic social teaching is that the goods of the earth are for all, they have a common destiny - to be shared for the good of all (Populorum Progressio, n 69). This is especially true of some of the "basics", (earth, air, water and services pertaining to them). The role of the State is to ensure fairness and equality of access and State "ownership" or administration is permissible to ensure this. Private ownership is seen in the context of protection of personal and family good. Again the State has a role in ensuring fairness of access to private property.

New Zealand is established as a nation by the Treaty of Waitangi which created a covenant between the Crown and iwi. The Treaty provided guarantees for both parties plus an assumption of good faith relations. The Treaty has been breached most seriously from the Crown side (wars, confiscations, unilateral legislation). Only relatively recently has the Crown moved to recognise injustices and repair them.

Catholic teaching from the latter part of the 20th increasingly supports the rights of indigenous people. Their relationship with and care for the land, forest and seas does not reflect the modern utilitarian approach but in many ways is more in conformity with principles of Catholic social teaching such as stewardship, participation, the rights and responsibilities existing between the State and citizens.

The Church regards the Treaty as a legitimate and important framework for developing relationships between the Crown, newcomers to New Zealand, and Maori. The Court of Appeal decision held that Maori customary rights were not extinguished under the Treaty of Waitangi and that there was the possibility of exploration of these in the Maori Land Court. This was not a declaration of Maori "ownership" nor would it necessarily lead to that outcome.

One of the central roles of the State is to ensure the common good of all. In this case, we believe the common good (Pacem in Terris n 63) requires that the rule of law and judicial proceedings to protect legitimate rights should take precedence, while acknowledging the wide interest in access to the foreshore and seabed. The Crown's role is to negotiate with relevant parties to see how fair outcomes can best be achieved while recognising prior ownership or administration by Maori. The suggestion that no-one own the foreshore and seabed may sound an attractive solution but would be difficult to administer legally. "Public domain" effectively suggests State control with Maori in a subordinate role. An alternative approach would be to recognize Maori kaitiakitanga, follow the process suggested by the Court of Appeal and enter into a shared administration which recognises the interests of other New Zealanders. This would recognise that, in some sense, Aotearoa New Zealand is still Maori land.

The Government's consultation process

We believe that the "foreshore and seabed" issue brings New Zealand to a watershed in the development of a just and peaceful society. The Government is acting unjustly and precipitately in its approach to developing legislation on this issue. The injustice arises as a result of denying the Marlborough iwi and consequently all iwi, hapu and whanau their rights as citizens to pursue legal action which may clarify Maori customary rights in relation to the foreshore and seabed. Article III of the Treaty gives Maori full rights as New Zealand citizens. As citizens they may pursue legal processes to clarify their rights under Article II. Haste is evident in the process of consultation with iwi. The Government may be well-intentioned in its approach to consultation but the short time frame allowed will not contribute to good decision making.

We have studied the Government's information booklet and the four principles that the Government is considering using in developing legislation to bring the foreshore and seabed into "the public domain". We consider that principles such as access, regulation, protection and certainty may well have a place in the final resolution of this issue but, at this stage, the Government "owns" these principles and they reflect the urgency the Government is attaching to the resolution of this issue.

We do not consider that legislation can be developed according to the Government's timeframe, without seriously endangering the relationship between Maori and the Crown. There is fear among Maori that they have not had their rights to the foreshore and seabed recognised and that they may be in danger of having their rights abrogated, because they are being denied access to established legal process. There is fear among other New Zealanders that if Maori have their rights clarified by the Maori Land Court they may possibly establish collective title. Recently the media has reported public protests in Nelson about the possibility of New Zealanders being denied access to "the beach", including the foreshore and seabed (NZ Herald 29 July 2003).

A way forward

We have no doubt that, given time and increased understanding and reconciliation of different perspectives, this issue can be resolved in a way which will improve relations between the Treaty partners. We suggest that there are several practical steps the Government could take to pursue a just solution to this issue:

1. The Government should allow a longer preparation time in its plan to resolve the issue.

2. In regard to the decision about the foreshore and seabed in Marlborough, the Marlborough iwi should be free to pursue their claim through the Maori Land Court. If they are granted title on the basis of their customary rights, and that is not at all certain, they would be in a position similar to that of a private owner who has title to land.

3. The Government should explain what "in the public domain" means: eg does this mean that those who have title to this land will lose their title? Where does that leave Maori with customary rights or the private owner with title? What will this mean to local bodies or Government departments which use the foreshore and seabed for a variety of purposes? What does the right of access mean in these different circumstances? What about coastal sites, or lakes and rivers also?

4. The Government should clarify the situation in regard to accessibility to the foreshore and seabed of New Zealand. What proportion is likely to be claimed through the Maori Land Court; is in private ownership other than Maori; is leased/used by local bodies; is managed by government departments, eg the Department of Conservation?

5. The Government should encourage programmes to promote the provisions of the Treaty of Waitangi among New Zealanders. It would be helpful if the Government clarified how Article II is understood by policymakers.

It will require considerable time to implement the above suggestions. In the meantime, Maori should be free to use the established legal process and the Government could then deal with issues of access on a case by case basis.

The Treaty of Waitangi established a partnership relationship (NZ Maori Council vs AG (1987). The present consultation process demonstrates an alarming breakdown in communication between the Government and Maori. There is a real danger that the Government's planned legislation will establish grounds for future grievances. We ask the Government to take a measured response to the issue and to facilitate as far as possible the aspirations of the tangata whenua, a people who bear the greatest weight of social and economic dislocation in Aotearoa New Zealand.

Yours sincerely
Rev Gerard Burns
Chairperson, Justice Peace and Development Commission

The Justice Peace and Development Commission of the Catholic Archdiocese of Wellington assists the Archbishop in promoting Catholic Social Teaching and encouraging Catholics to work for justice and peace.

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