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A Submission on 'Government Proposals for Consultation: The Foreshore and Seabed of New Zealand' from Victoria Owen.

I am a Pakeha New Zealander committed to the development of a just and peaceful nation based on Te Tiriti o Waitangi.

Key points of my submission:

  • I am opposed to the Government's proposals as set out in the "Government Proposals for Consultation: The Foreshore and Seabed of New Zealand".

  • The proposals represent a unilateral extinguishment of Iwi and hapu rights to the foreshore and seabed (in contravention of the Crown's own common law and Te Tiriti o Waitangi) and Iwi and Hapu access to justice

  • The proposals represent an abhorrent double standard - protecting the rights of non-Maori at the expense of Iwi and Hapu

  • I reject the Government's approach in abrogating the rights of Iwi and Hapu in the name of protecting "public" rights. I urge the Government not to confiscate the rights of Iwi and Hapu in my name!

  • The Government's process for responding to the Court of Appeal decision has been inadequate, failing to engage with Iwi and Hapu in good faith. Furthermore the process to date has served to inflame public concern and fear leading to unnecessary antagonism towards Maori and racial hatred on a frightening scale

  • The timeframe for consultation is inadequate, failing to provide Iwi and Hapu, and the public with time to fully consider the issues at hand.

Proposed remedies:

  • The Government abandon its current proposals and timeframe, and engage directly, and in good faith, with Iwi and Hapu to develop solutions acceptable to both Treaty partners, and which provide a positive and solid future for our nation based on Te Tiriti o Waitangi, rather than one based on fear and hatred.

  • The Government engage with Maori and non-Maori involved in education on Te Tiriti o Waitangi to develop a comprehensive program for improving public understanding of Te Tiriti, our history and its significance today.

Access to justice

The Government's action since the Court of Appeal decision and its proposals to legislate effectively prevent Maori access to justice through the Courts. Maori have had limited options for seeking to have their rights affirmed and grievances addressed in this nation. Despite a long history of Courts failing to uphold Maori rights (often due to a failure by the Crown to provide for them in legislation), Maori have had little option but to seek remedies in the Courts. After a lengthy legal process initiated by Iwi in the Marlborough Sounds, the Courts agreed (only) that Maori could have their rights investigated through the Maori Land Court. Within a couple of days after this finding, the Government announced it would legislate to prevent Maori gaining title to foreshore and seabed. This is the ultimate irony. When Maori finally achieve something of a victory in the pakeha court system, the Government immediately moves the goalposts, and signals its intention to legislate to prevent the possibility of Maori freehold title becoming a reality. This to me seems to be a blatant denial of the rights of Iwi and Hapu as Treaty partners, and Maori as citizens of this nation in contravention of the Treaty.

Double standards for Maori and non-Maori

Much of the justification for the proposals is about protecting public access to the coast. The Government's own report on Land Access highlights that over one third of the Coast is already in private ownership, with the public having no guaranteed right of access. While the Government has been investigating the issue of public access to such areas, I note that the Government report on Land Access has not proposed legislation to take away private rights and title to such areas without consultation or consent (as is proposed for Iwi and Hapu rights).

I note again the double standard for Maori and "private" rights within the Government's proposals on Foreshore and Seabed. While the proposals address the possibility of Maori excluding the public by legislating to prevent Maori obtaining title at all, the proposals recognise that limitations on public access will need to remain for many "private" or "other" rights (p.17).

In discussing the possibility of legislating to provide access to all private title in the foreshore and seabed, the proposals also provide for the private owner to have a period of notice and discussion with the Crown as to whether an exemption might be warranted. Where is the equivalent for Maori? The Government proposes to prevent Maori from establishing title through the Courts, thereby extinguishing Maori title, without option for "discussion" or exemptions.

Under its own common law, the Crown cannot extinguish the rights of its citizens without consent. The Government's current proposals appear to recognise this precept in respect of private rights, just not for Tangata Whenua.

Overriding all this is the presumption that Iwi and Hapu must 'prove' their rights to the Government who will then define and limit them in order to 'protect' them, while those with "private" rights will have them acknowledged and respected.

International context - more double standards

The New Zealand government recently criticised the President of the United States of America for taking unilateral action against Iraq in contravention of international laws and agreements. However, now the same New Zealand Government plans to act unilaterally to extinguish the rights of Iwi and Hapu in contravention of an inter-national treaty (Te Tiriti o Waitangi) and its own common law. The irony is disappointing. If we wish to be a nation that stands for justice and fairness, then lets start at home and honour the relationship with our indigenous people.

Comments on the proposed principles

The Crown has backed away from its initial assumption of Crown ownership (discovered to be incorrect). However, the proposals continue to be underpinned by the questionable assumptions that the Crown has the right to define Iwi and Hapu customary rights, and to define them as excluding title, regulation, or a development right, and as something less than "ownership".

Based on these assumptions, the four principles - Certainty, Regulation, Access and Protection - are therefore problematic and flawed.

"Principle of Access - The foreshore and seabed should be public domain, with open access and use for all New Zealanders"

The Government has moved away from asserting its ownership, only to prevent Iwi and Hapu from asserting theirs. The result is that no one will own the area, but the Crown will retain all powers to regulate use, leaving Iwi and Hapu with very limited "customary rights" to be defined and "protected" by Crown. Maori have stated clearly that this is unacceptable to them and asserted that it is in breach of the Treaty.

Much of the justification for the Government's proposals is based on hysteria about public access to the beach, which is a straw man set up to fuel public fear. I reject the Government's assumptions that it needs to legislate to protect public access. Maori have continuously stated throughout this debate that access is not the issue, nor is it at risk. Maori have said that they do not wish to exclude the public from the coast, and have asserted that Iwi and Hapu rights and public access can coexist.

I also reject the Government's assumption that it is acting in my interests or acting to protect my interests. My interests are that the Treaty relationship is respected, and the rights of Iwi and Hapu are similarly respected.

"Principle of regulation - The Crown is responsible for regulating the use of the foreshore and seabed, on behalf of all present and future generations of New Zealanders"

Now that "ownership" is not at issue, and the seabed and foreshore rest in the public domain, the Crown continues to assume the right to regulate. The problem here is that Iwi and Hapu rights included the rights of regulation, although the Crown does not recognise this. Iwi and Hapu have asserted that their interests in the foreshore and seabed include regulation, amongst other things. Where is the Iwi and Hapu role in regulation acknowledged in these proposals? In fact, problems with current regulation led to this case being taken by Marlborough Iwi in the first place. Maori have asserted many problems with regulation currently at central and local Government level, as these bodies continue to operate on the assumption that they have a right to govern with minimal input from Iwi and Hapu.

"Principle of protection - Processes should exist to enable the customary interests of whanau, hapu and iwi, in the foreshore and seabed to be acknowledged, and specific rights to be identified and protected."

Without interests in ownership or regulation, the possible "customary interests" of Iwi and Hapu are extremely limited. As noted above, Maori throughout the country have asserted that their rights in the foreshore and seabed ("tupuna rights") are wide ranging and include governance, regulation, development, use and access, all in accordance with tikanga. Furthermore the Waitangi Tribunal has indicated that Iwi and Hapu have Treaty based interests in petroleum resources in the seabed. By assuming to define Iwi and Hapu rights in a very limited way, the proposals risk narrowing them to a limited use interest. We should not pretend that we are protecting Iwi and Hapu rights when these are in fact being removed.

"Certainty - There should be certainty for those who use and administer the foreshore and seabed about the range of rights that are relevant to their actions".

The proposals aim to provide "certainty" by legislating for the foreshore and seabed to be held in the public domain, and preventing Maori from gaining title. But whom do the proposals provide certainty for, and at whose expense? They may provide certainty for the public and private "owners" of foreshore and seabed, but not for Iwi and Hapu. There is no certainty for Iwi and Hapu rights, except to know that they are subordinate to those of the majority whenever such rights are perceived as a threat to the majority. The public certainty is provided at the expense of the rights of Iwi and Hapu.

Need for education on Te Tiriti o Waitangi

The public reaction highlights the need for Treaty education, not just information. However, the Government's response to the Foreshore and Seabed issue has highlighted the problem of the Crown being in charge of such a process, when Maori contend that the Crown is currently acting in breach of the Treaty. I propose that the Government engage with both Maori and non-Maori involved in Treaty education to develop and implement a thorough and comprehensive education programme that provides our communities with a better understanding of the Treaty and its significance and meaning.

The Treaty relationship

Iwi and Hapu rights do not derive from the Crown, but existed prior to Pakeha settlement and Pakeha government and continue to exist. Te Tiriti o Waitangi confirmed these existing rights and required the Crown to respect them. As we all know Te Tiriti was not honoured in the main, and Iwi and Hapu suffered as a result. Over recent decades the Crown, on behalf of its citizens, has begun to redress some of the many breaches of the Treaty and as a result has concluded settlements with Iwi around the country. It would be a shame and a great irony if just as we are beginning to redress the grievances of the last 163 years we created a new one. Maori are saying that they see the Crown proposals as just this, a massive breach of the Treaty and a major affront to the Treaty relationship.

In this regard, the Crown has failed to act in good faith by failing to consult adequately with Iwi and Hapu to find a mutually acceptable solution. In fact hysteria over this issue reached new heights as the senior members of the Labour Government failed to consult, or even inform, its own Maori MPs before making its public announcement to legislate! As a result even the Maori MPs issued a statement comparing the government's actions to raupatu!

The response from Iwi and Hapu to the Government's proposals has been near universal condemnation throughout the country. Iwi and Hapu have noted their disappointment and anger at the process, the proposals and being subordinated to the so-called "public interest". However, Iwi and Hapu have also put forward alternative suggestions including processes and options.

If we are to repair the damage done to the Treaty relationship and prevent a major leap backwards, I urge the Government to enter into negotiations with Iwi and Hapu in good faith to find a solution to these issues that are based on mutual respect and good faith rather than fear and loathing.

Victoria Owen
29 September 2003

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