Where to now on the foreshore

The debate on the foreshore and seabed is now at a critical point. Maori have unanimously rejected the Crown proposals and the Crown has just as clearly stated its commitment to the principle that no-one will 'own' or sell off the foreshore and it will reserve the right to regulate it. There is obviously a need for the parties to engage and to find a way forward, but the key is the nature and degree of the engagement.

Too often in the past the Crown's idea of engagement has been to set the boundaries of the engagement (as it has done with the four Principles in its consultation document) and then ask Maori to fit within them. It is engagement by coercion rather than Treaty good faith.

However there have also been times of engagement in recent years in which some Maori have advocated the need for our people to be 'realistic'. Sadly experience has taught us that being realistic in dealing with the Crown has always meant being realistic on its terms. There have been terrible costs in that approach and an inevitable diminishing of our values and rights.

The bottom line of all Maori statements on the foreshore has been simple - it belongs to us and we belong to it. It would be a tragedy if that bottom line is then conceded in an engagement that is 'realistic' but which actually gives away or redefines the bottom line in favour of some compensation deal or nationally-structured arrangement. That would be a redefinition of our mana and our tikanga. It would also be unjust and there is always a danger that 'getting real' too often gets confused with being really just.

In the Ngati Kahungunu Statement delivered to the Crown at the hui at Omahu a way forward was suggested which was based in both the mana and rangatiratanga of Iwi and Hapu and the Treaty. It advocated reclaiming the notion of tipuna title which is the authority that was exercised in relation to the whenua and moana before the Treaty. It was an absolute authority because it vested absolutely in the Iwi and Hapu as part of the mana exercised for the whenua rangatira. However it was not exclusive like Pakeha rights of ownership because it was based in the collective and carried certain obligations, including the need to grant access on terms consistent with the proper care of the area.

The tipuna title gave rise to tipuna rights which vested in the Iwi or hapu and were defined according to tikanga. They are quite different to the common law customary rights which are ultimately defined by the Courts or Parliament and which the Courts and Crown have assumed they can extinguish. Both the tipuna rights and title were clearly reaffirmed in both the Declaration of Independence and the Treaty. Any attempt by the Crown to redefine them (as its consultation principles do) is a Treaty breach.

A realistic way forward which preserves those rights and title, and thus the Treaty relationship, can be developed which reflects the clear bottom line of Maori and offers the Crown an opportunity to act in an appropriate Treaty way. The starting point would be a Principle Of Rohe Access under which the foreshore and seabed are acknowledged as part of the rohe or domain of Iwi and Hapu. Inherent in that rohe concept are the obligations of tipuna title to allow reasonable access and long traditions in which covenants of access were actually negotiated to ensure compliance.

The question of access has been one of the major stated concerns of the Crown. If that is a genuine concern it could recognise the tipuna title and then help facilitate the negotiation of covenants of access between say the Hapu and the appropriate local body. Those covenants could also include agreements on the regulation and protection of the area concerned. If the Crown also has other concerns about sale (which is actually contrary to the notion of collective title) it could also facilitate covenants preventing sale.

If it is adequately explained such an approach would ease public fears, preserve the Maori bottom line, and show that the Crown is prepared to properly acknowledge the Treaty relationship. It requires a reality shift but it would be just.

Moana Jackson

This article was published in Mana magazine, October 2003; you can subscribe to Mana here.