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A submission on 'Government Proposals for Consultation: The Foreshore and Seabed of New Zealand' from Northland Urban Rural Mission.

Introducing NURM

Northland Urban Rural Mission (NURM) is a Community Development and Social Justice-oriented Community and Inter-Church collective working in the Community Sector. NURM has nearly two decades of experience in Te Tai Tokerau. One of NURM's major concerns is to see Te Tiriti o Waitangi implemented in a realistic way here in the North and throughout the country.

The first object of NURM, specified in our Constitution, is to "Honour Te Tiriti o Waitangi, particularly acknowledging Te Tino Rangatiratanga as expressed in Article 2 of the Maori Text." This priority impels us - Pakeha members of NURM - to challenge the Crown's proposals in relation to the foreshore and seabed, or what could be labeled the Coastal Marine Area.

Although Te Tino Rangatiratanga implies possession and distribution of resources, it is primarily about authority, control and wider issues of policy, management and conservation. So many of the claims before the Waitangi Tribunal indicate this underpinning reality.

As we understand it, under Te Tino Rangatiratanga the Tangata Whenua have not only a complex set of obligations with respect to land, foreshore, seabeds and other resources - obligations to past and future generations - but also the right to the means to fulfill these obligations. Te Tiriti o Waitangi / The Treaty of Waitangi acknowledges the Crown's absolute duty to ensure Tangata Whenua's ability to meet their obligations.

In breaking the Treaty yet again and in undermining Te Tino Rangatiratanga, in this case by legislating to remove the foreshore and seabed from their Kaitiaki, "we" Pakeha settlers acting through the Crown would be continuing down the path of taking away the means for the Tangata Whenua to fulfill their sacred responsibilities. But the lesson we are still learning is that we have not ever taken and cannot ever take away these responsibilities; they continue unabated no matter the maneuverings of Governments.

At Heart:

Consistently with our aims, NURM would prefer the current discussions to be well-based on the prior reality of indigenous rights, what might be called 'Tipuna title,' rather than the already limited concepts of 'customary rights,' and that when the latter concept is used it is acknowledged to be only an approximation of the underlying core rights.

Iwi and Hapu rights, based in whakapapa and tikanga, are derived from their own traditions and law. These rights - echoed in the Tiriti's phrase Te Tino Rangatiratanga - are defined by those hapu and iwi themselves; no other iwi or people have the right to extinguish them. They exist independent of the seizure of Maori taonga by force or by law, and prior to Te Tiriti o Waitangi / The Treaty of Waitangi and Common Law concepts of customary rights, though these confirm aspects of those prior rights.

The Colonial Perspective:

"The key element (in holding empires together) was imperial perspective, that way of looking at a distant foreign reality by subordinating it in one's gaze, constructing its history from one's own point of view, seeing its people as subjects whose fate can be decided by what distant administrators think is best for them. From such willful perspectives ideas develop, including the theory that imperialism is a benign and necessary thing." Thus the late Professor Edward Said, in a newspaper essay on a parallel subject recently (July 20, 2003; LA Times).

The imperialist and colonial perspectives have much in common. In the relation between Crown and Maori on this issue, at least, we can see evidence of such colonial perspective continuing in our days. As is argued below, the imperative of the Crown establishing good relations with Tangata Whenua has been put second to other priorities in the Crown proposals.

The Crown proposals systematically subordinate Maori customary rights to public interest issues like access. They understate the basis and legitimacy in national and international law for those rights. They prejudge and limit those rights. They set higher benchmarks for establishing Maori rights while not requiring other parties to establish their perceived rights on a case by case basis. They provide 'certainty' for others' property rights above those of Maori. In short, the Crown in these proposals fails to respect and proactively protect Maori customary rights which it has a clear duty to do under the doctrines of Common Law, of Te Tiriti o Waitangi / The Treaty of Waitangi, and we would suggest under the indigenous doctrines of iwi and hapu rights.

Within the Confines of Western Law

Iwi and hapu rights are the heart of the matter. Beyond there, the doctrine of Customary Rights is a western construct, historically created to enable colonisers to interact with indigenous peoples ultimately without detriment to the heart of the colonising project. Maori and others' arguments based on 'customary rights' do have a positive use, but we note that this doctrine - as a colonial construct rather than an indigenous one - has the weakness of being constantly subject to Crown acceptance and modification.

In the case of the Foreshore and Seabed, it is clear that the positive sense of 'customary rights' is being subjected to Crown interference and undermining. Such interference - we argue - shows the Crown lacking respect for the best in its own western tradition.

Customary Rights do have a strong status in international law and - we would suggest - in the ethical behaviour expected of the Crown and the wider Pakeha and Tauiwi community:

  • While customary rights are different from and prior to Treaty rights, they are supported by the Treaty.
  • Common law and some legislation recognises but does not define customary law.
  • Only indigenous people can define their own customary rights.
  • Protection of customary rights has long standing and recent legal precedents.
  • In the Appeal Court judgment of 19 June 2003, all five judges acknowledged that Maori customary right cannot at all be considered to have been extinguished.

    "No expropriatory purpose in the Act in relation to Maori property recognised as a matter of common law and statute can be properly read into the legislation ... The language of deeming, the preservation of existing property interests, the compatibility of radical title in the Crown and Maori customary property, and the absence of any direct indication of intention to expropriate make it impossible to construe the legislation as extinguishing such property" (clause 63).

    While Deputy PM Cullen has quoted part of the judgment (clause 62) out of context, it is clear that the Appeal Court has ruled that there has been no legitimate alienation of customary rights to foreshore and seabed.

    To so consider would be to go against international legal principles.

    This Appeal Court ruling was met by a flurry of political and media sensationalism about public access to beaches. The ruling's content was about something else. At heart it was a procedural decision that meant the appellant iwi were able to bring their claims to the Maori Land Court. The issue was due process, something the iwi in this case (as well as others) had fought for over years. 'Due process' is another term for acting fairly, albeit within the limited concepts of western law.

    "The normal means to resolve ambiguities in the law is to allow a court to hear evidence and to make a ruling based on that evidence. It looks as if the Maori Land Court will never have the chance to hear evidence from the iwi of their customary entitlements, let alone issue a judgment as to their customary rights, if any, that might flow from any proven customary rights. Due process of law is a fundamental concept of English common law that goes back to the Magna Carta in 1215.

    "In this situation, however, the Government is not willing to permit due process of law. Without waiting for a proper judicial inquiry into the land rights involved, the Government first insisted on Crown ownership and then came up with the notion of 'public domain, with open access and use for all New Zealanders.' This hasty action is a serious and unnecessary breach of rule of law values...". (Rev Dr David Williams, Assoc Professor of Law, University of Auckland, in Anglican Diocese of Auckland Treaty and Constitutional Change Education Newsletter, September 2003).

    NURM seriously regrets the Government's haste to override due process in this matter, and the breach of the right Maori have to follow due process, even within the limitations of the colonial paradigm.


    We note the severe historical irony that the Native / Maori Land Court was given power by the colonial Government to individualise land title in order to expedite settlers' ability to takeover alienated Maori land. Now however the mere potential of Maori having 'ownership' or individual title (which is not in fact in question when indigenous / tipuna title and kaitiakitanga is at issue) to the foreshore and seabed is regarded as inconceivable; the word 'ownership' must not now be used ... in other words, colonial 'Principles' are okay as long as they benefit the colonisers; it is a question as to who benefits rather than any virtuosity on the Crown's part.

    As a partial reflection of 'tipuna title,' iwi and hapu rights, and Kaitiakitanga, Customary Rights and Title are much more than ownership. Attempts to reduce Customary Rights to mere 'ownership' which have resulted in some popular backlash are unacceptable.

    "Aboriginal title is a right in land and, as such, is much more than the right to engage in specific activities which may themselves be aboriginal rights. Rather it confers the right to use the land for a variety of activities, not all of which need be aspects of practices, customs and traditions which are integral to the distinctive cultures of aboriginal societies" (Delgamuukw v British Columbia in the Supreme Court of Canada). Furthermore, it cannot be held by individuals, only by collectives.


    We of NURM - as Pakeha, represented by the Crown in our side of the Treaty relationship - object strongly to any suggestion that the Crown might set about extinguishing those Customary Rights. This in itself would be a contradiction of everything the Treaty stood and stands for. It would be an abhorrent attempt - albeit unsuccessful - to again deny the underlying iwi and hapu rights. Rather we wish to see the Crown actively protecting those rights as it is legally and ethically obliged.

    With that objection in mind, it has to be said that the Crown has not even undergone the preparations for extinguishment. Even within the limitations of colonial law, extinguishments could only take place with unforced and appropriate negotiation, and not just mere 'consultation' implying as it does both the Crown's right to unilaterally decide, and an exercise of power over Maori.

    Again, even within the limitations of 'consultation' as defined in NZ case law (cf Justice McGechan in the Wellington Airport case), the Crown cannot be said to have provided sufficient time for consultation on such a significant issue; neither - with bottom lines set prior to consultation - can the Crown be said to have remained open-minded and ready to change and start afresh.

    If the Crown were to go about extinguishing customary rights of Maori in relation to the foreshore and seabed, this would be to forge legislation of the nature of the 1894 Act to validate previously invalid land sales. It would be to reinforce the historical pattern of the Crown acting in favour of the Pakeha majority to the detriment of Maori tipuna and Tiriti / Treaty rights.

    It would also be to create a significant Treaty breach (of the level of the raupatu of the 1860s) for which this Government of 2002 - 2005 will be judged for generations into the future.

    Current Process:

    NURM wishes to record our respect for the considered way that Maori have responded (within the limited timeframe allowed by Government), and for the quality of proposals that have come from Maori. We do not wish to be associated with the caricaturing, belittling, marginalising (as unrepresentative 'activists') and patronising that has characterised a significant amount of commentary about Maori responses and considered resistance to Government proposals.

    Further, we affirm that the need for the Crown's good relations with Tangata Whenua far overrides the issue of providing benefits to private landowners. Thus it needs to be acknowledged that:

  • This was never about Maori restricting access to the foreshore and seabed. We see the supposed Maori threat to public access to the beaches in fact serving to divide Pakeha and Maori who actually have interests in common.
  • There are significant economic interests in the Coastal Marine Area. Wealthy private property-owners and a range of other bodies are already denying the public access to beaches and foreshore. Investors are focusing on attractive coastal and island properties. Marine farming is a multi-million dollar sector, and marinas are said to function as a licence to 'print money'. Mining seabed and tourism are expanding activities. Some of these activities provide significant direct or indirect payment to the Crown. It would not be unreasonable to infer that these interests have been prioritised above those of Maori and above good relations with Maori.
  • The use of 'Principles' (as with the Court's and Crown's 'Principles of the Treaty of Waitangi') has been one way of watering down the core rights of indigenous people. We cannot find an instance of such a process confirming or strengthening those rights. In this case, independent of the Government's intentions, these 'Principles' have the effect of watering down indigenous Maori indigenous rights, customary rights and Treaty rights while others benefit.
  • The language of the Government's proposed four 'Principles' has to be said to be monocultural and topdown. From the perspective of many Maori and Pakeha of integrity, these principles have not provided for example any healthy 'certainty' apart from that of disempowerment. Each principle can be seen to have been created from a non-Maori perspective to reassure and benefit others than Maori.
  • None of these factors prioritises the Crown's good relations with Tangata Whenua, which are the basis for good governance and development in this country.

    In Conclusion:

  • We ask Government not to rush its proposed action, to allow appropriate time for Iwi and Hapu and Maori collectives' proposals and Waitangi Tribunal responses to be formed and to be fully considered by Government, for further submissions to be made and for further negotiations to take place. We assert that there is no need for the tight timeframe that Government is proposing on this highly significant issue.
  • NURM asks Government to take seriously and respectfully the analysis and proposals from Tangata Whenua groupings.
  • Specifically, we have read and wish to support the submission of Te Ope Mana a Tai, and fully commend it to Government for serious consideration.
  • NURM sees in this issue a real opportunity for Government and the Pakeha community to work with Tangata Whenua in a way that would indicate to ourselves in this country and to the rest of the world how seriously this relationship is taken. We see huge advantages for our peoples should the Crown and Tangata Whenua reach genuine consensus on the basis of Maori customary and tipuna rights. We seek Crown openness and goodwill in working towards those goals.
  • NURM wishes to speak to this submission.

    Tim Howard
    For NURM
    3 October 2003

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