Part One: The Background

Colonisation has always been a carefully constructed process designed to take away from other peoples their lands, their power, and often their lives.

As even a cursory reading of New Zealand history indicates, successive governments have used various methods to take away from Iwi and Hapu the rights and resources which were vested in us by our tipuna. In the 19th century the methods included the terrible overt violence of war, but more often it has been achieved through the insidious operations of law and the deliberate misreading of Te Tiriti o Waitangi.

Often the taking was accompanied by a misleading discourse about Maori savagery, or greed, or incompetence, or a specifically constructed myth that everything we have must somehow be taken for the benefit of "all New Zealanders". Unspoken but always present in the discourse is the basic colonising reality that those who were colonised were inherently inferior and were therefore either less worthy of keeping those things which they once had or could do so only on the subordinate terms that the colonisers set.

In the 21st century New Zealand likes to imagine itself as a non or post-colonising society that is appalled at the obvious racism so often directed at our people in the past. There is now a new discourse of Treaty partnership and cultural respect but the ancient colonising imperatives remain and they have been brought to the fore in the current dispute.

Indeed just as the Native Land Court was a instrument of political policy, so other courts were used or disregarded when their decisions did not meet with government approval. The haste with which the Prime Minister and the Attorney General announced that they would legislate to effectively overturn the Court of Appeal decision on the foreshore and seabed was both a blatant misreading of the decision's likely impact and an indecent willingness to redefine the Maori position as one that remained subordinate to the Crown.

In that context it is hypocritical of the government to express an apparent abhorrence of the 'playing of the race card' by other political Parties because although others may have been more openly expedient and misleading in their approach to the issue they share similar goals and objectives - they essentially believe that the foreshore and seabed must be taken from Maori.

However the reasons which each Party gives for this taking, like those of the government, are devoid of logic, in contradiction of the law they proclaim to uphold, and fundamentally unjust. They are also based upon assumptions which have no validity save that the Crown has made them - indeed in her original statement on the issue the Prime Minister acknowledged that legislation was needed to clarify 'what had long been assumed' that the Crown owned the foreshore and seabed. The basis of that assumption has never been explained yet it continues to underpin the current government proposals.

Part Two: Some Key Terms

As Ngati Kahungunu we have always been very clear about our relationship with the whenua and the responsibilities and obligations that go with it.

The passage of the years and the taking of much of the whenua have not altered the ancestral base of that relationship nor the means by which it should be protected.

We regard the whenua, which of course includes the foreshore and seabed, as being encompassed within our mana motuhake, or as it is noted in Te Tiriti, our tino rangatiratanga.

We have what may be called a tipuna title to it. That title was always absolute and could never be permanently alienated. It was and is an essential component of our mana and rangatiratanga, and although it has some similar attributes to the Pakeha notion of 'ownership' it is fundamentally different because it involves the collective rights and obligations of whakapapa and is never definable by somebody else.

It is neither just a common law 'customary title' nor evidence of an 'ancestral connection' as recently suggested by the Prime Minister. Instead it is a discrete and unique Maori construct sourced in tikanga that has never been given away, taken, or able to be subsumed within any common law doctrine.

From the tipuna title came certain tipuna use rights which were prescribed and proscribed in accordance with whakapapa and in our case our Kahungunutanga or Haputanga.

The government confuses such tipuna rights with the notion of 'customary rights' adumbrated at common law and in certain statutes such as the Ture Whenua Act. However whereas 'customary rights' may be defined as being 'consistent with tikanga' their nature, extent, and even their existence is determined by the Crown or the Courts. Common law 'customary title and rights' are in fact inventions of colonial law that still assumes a power to both explain and extinguish them.

Tipuna rights on the other hand are fundamental expressions of our mana and rangatiratanga which cannot be determined except by the Iwi and Hapu - as Renata Tamakihikurangi once said, "It is only our people who can determine what is tika".

Such tipuna use rights therefore derive not from a Crown or common law base but from the tipuna title inherent in the mana and rangatiratanga of each Iwi and Hapu as reaffirmed in Te Tiriti.

Part of the use right was the obligation of kaitiakitanga. It is important to stress too that our understanding of kaitiakitanga is an absolute obligation that is necessarily also prescribed by tikanga and exercised as part of our mana and rangatiratanga. It is a much more substantive and substantial exercise of authority than that attributed to it in the Resource Management Act where it is seen by the Crown as a subordinate idea of 'guardianship' or 'management'.

Part Three: The Crown Principles

The way in which the government defines a right of access to the foreshore and seabed is both fatuous and a gross misrepresentation of the Iwi and Hapu position. It is in fact a shibboleth which the government erected and which it now seeks to knock down.

It ostensibly arose from the Court of Appeal decision and a fear that it might prevent 'ordinary New Zealanders' from going fishing or having barbecues on the beach. Yet there is nothing at all in the decision which even suggests that possibility. Indeed the words 'access' or 'non-access' are not even used in any of the judgements because the question of who might or might not have the ability to grant or deny access was not germane to the very narrow legal issues which the court was asked to consider.

The possibility that access might be denied has instead been a dishonourable and dishonest political attempt to stir up antagonism towards Maori and to instil apprehension about the very clear decision that Iwi and Hapu might still be in possession of so-called common law customary rights to the foreshore.

It clearly misrepresents the case. However it also distorts the nature of the collective rights and obligations that flow from the mana of each Iwi and Hapu as expressed through the concepts of tipuna title and tipuna rights of use. It also denies the manaakitanga which is fundamental to the exercise of rangatiratanga and which effectively mitigated against any blanket denial of access.

Thus it suggests that if the common law customary rights ever amounted to exclusive ownership they could become a freehold title which would enable us to close off the foreshore. There is a perverse irony in this suggestion because it was the establishment of the Native Land Court that first attempted to transform Maori collective interests into freehold title. The Crown has thus been caught out by its own perfidy.

However even in those areas where freehold title has been vested in Iwi and Hapu there is little evidence that it has been used to deny access in any ongoing way. In those cases where the foreshore and seabed have continued as part of our own tipuna title and rights of use there is no evidence at all except in particular circumstances of a rahui.

Yet having erected the bogey that Maori might deny access the Crown now seeks to rationalise why it should act to prevent it happening by 'backing away' from any notion of ownership and replacing it with the idea of a 'public domain'.

However the public domain amounts to an absolute right of dominion vesting in the Crown. It denies ownership but actually recreates it under a new guise and thus once again subordinates the interests and rights of Iwi and Hapu.

The government's Principle of Access and the public domain are unacceptable.

Under this Principle the government claims what is effectively a supreme freehold title to define and regulate the use of the foreshore and seabed.

It maintains that the power to regulate is separate from that of ownership because it is a necessary function of government. However whatever authority of kawanatanga was granted to the Crown in Te Tiriti it could not be exercised in isolation from, and in fact was dependent upon, the rangatiratanga of Iwi and Hapu.

Assuming a unilateral authority to regulate as envisaged in Principle Two clearly dismisses and demeans the authority of Iwi and Hapu. It constitutes a clear breach of Te Tiriti and subordinates long held Maori rights to legislative whim.

The Principle of Regulation as outlined by the government is unacceptable.

This Principle outlines ways of acknowledging the 'customary interests' of Iwi and Hapu either by 'building on existing systems' or by establishing a specialist division of the Maori Land Court. However it is both confusing and problematic.

The notion of 'customary interests' is a confusing invention that is not recognised in international law, domestic common law, or Maori law. It is a neologism open to whatever meaning the government might choose.

It is problematic that government proposals simply ignore or seek to assimilate or redefine the notions of tipuna title and rights within this new invention.

Equally problematic is the fact that the concomitant power to extinguish the common law rights is maintained but no just reason is provided as to why it should continue to be recognised as a legitimate expression of kawanatanga.

Also problematic is the intimation by the government that such rights do not have a commercial component when in fact there has always been a traditional right of development, provided that such development was achieved in accordance with tikanga and all that that entails in terms of relations between people and the earth.

However the most problematic part of the Principal is the assumption that Maori will be the ones who have to go to court to prove the existence of our rights, whether we define them in common law terms or in terms of our tipuna title. There is no onus on the Crown to prove how and on what grounds in tikanga it has taken them away. Instead we have to prove the survival of something that the Crown had no right to take away in the first place. There is simply no logic and no justice in such a scenario.

Indeed establishing a new jurisdiction for the Maori Land Court simply confines the interpretation of our status within a Crown defined and controlled forum and thus continues to subordinate it. In that context any promise of protection is a dubious one.

The principle of Protection as outlined by the government is unacceptable.

This Principle outlines the need for certainty for those who use and administer the foreshore and seabed.

However the ongoing subordination of the Maori position and the effective denial of any truly tikanga or Tiriti-based resolution actually create grave uncertainties for Iwi and Hapu because it is yet another diminution of our rangatiratanga.

Part Four: A Way Forward

Ngati Kahungunu does seek a way forward. However we reject the government proposals on the foreshore and seabed as fundamentally opposed to our tikanga, our mana, and the authority reaffirmed for us in the 1835 Declaration of Independence and Te Tiriti.

We note comments by some Cabinet Ministers after earlier hui that there is room for movement within the current proposals but suggest that they offer no room because they are so clearly designed to disadvantage Maori.

We also note comments made by some Cabinet Ministers and others that Maori are being 'unrealistic' in claiming that the foreshore and seabed belong to us but remind the government that being realistic on its terms has too often led to injustice and disadvantage for our people as it surely does in this case.

We further note recent suggestions that 'customary rights' may indeed include a commercial component but do not accept that this recognition in any way compensates for an ongoing refusal by the Crown to adequately recognise the tino rangatiratanga affirmed in Te Tiriti and its particular application to the foreshore and seabed.

We note too some suggestions of compensation as a way of resolving this issue. However if the compensation is offered in exchange for a unilateral extinguishment of our rights it is unacceptable. We cannot consent to the removal of, nor payment for the removal of, those rights and title granted to us in trust for the benefit of our mokopuna.

We therefore signal that any resolution acceptable to us must recognise our tipuna title and rights as defined by us.

We also signal that we will not be bound by any decisions or agreements made by the Crown with any statutory body or working group other than Ngati Kahungunu.

We recognise that this issue has ramifications for other areas of concern to us such as aquaculture, oceans policy, and marine reserves. However we are clear that such other issues must also be designed and moved forward in our rohe only in accordance with our Kahungunutanga and the authority guaranteed in Te Tiriti.

We are equally clear that notions of Crown-Iwi co-management have in the past led to a subordinating of Iwi and Hapu authority and that such models are unacceptable and inappropriate as a means of protecting the foreshore and seabed.

We therefore suggest that the government abandon its current proposals and begin again with less haste and more adherence to the ideals of justice enshrined in Te Tiriti. We offer the following four principles as a possible way forward.

Since time immemorial the foreshore and seabed have been the domain of Iwi, Hapu and whanau who allowed and will continue to allow access for all who wish to use it in ways consistent with tikanga.

The government should take whatever steps it deems necessary in accordance with Te Tiriti to recognise that the foreshore and seabed are the domain of Iwi and Hapu.

If as the governments suggests its main concern is the protection of access and the need to prevent sale there are clear precedents in our law and tikanga in which covenants of access and non-saleability might be negotiated in each rohe to ensure that the domain is effectively used in ways that are consistent with tikanga.

In that process we would also expect the Crown to require similar covenants of access and non-saleability from Pakeha owners of lands adjoining the foreshore and seabed.

Since time immemorial Iwi and Hapu have exercised their tino rangatiratanga to regulate and nurture the foreshore and seabed for the benefit of the mokopuna and all present and future generations who may wish to use it.

The Crown has an obligation to recognise that authority in accordance with Article Two of Te Tiriti so that all people living in this country can feel assured about their ability to access and enjoy those activities they regard as essential to their way of life.

In that process we would undertake to regulate with due regard to tikanga and the interests of those who have a stake in the respectful use of the foreshore and seabed.

Since time immemorial Iwi and Hapu have exercised their tino rangatiratanga through mechanisms designed to protect our tipuna title and rights in a way that ensured their survival and thus the protection of the whenua and the people who chose to live upon it.

The Crown must accordingly recognise the validity and legitimacy of our tipuna title and use rights as a fundamental part of the mana of Iwi and Hapu so that we may continue to protect the whenua including the foreshore and seabed.

In that process we would undertake to also offer protection for the use and access rights of all others.

Since time immemorial Iwi and Hapu exercised their tino rangatiratanga as a discrete constitutional authority which was certain in its origins, definitive in its application, and reaffirmed in Te Tiriti.

The Repudiation Movement and the establishment of a Maori Parliament were 19th century attempts within Ngati Kahungunu to remedy the constitutional imbalances and flawed interpretations of Te Tiriti that colonisation had imposed and profited from.

The implementation of any foreshore and seabed policy needs to be situated within a broad-based process of constitutional change if it is to be just and long-lasting. The vision of our tipuna has not been dimmed.

Some shorter term implementation of the first three principles is possible but their effectiveness will ultimately depend upon the resolution of systemic constitutional issues.

Conclusion:

The undertakings given in the four Principles are made with the same certainty of good faith that our people took to Te Tiriti in 1840 and the knowledge that it has been the Crown, not us, that has consistently been in breach of it.

As will be apparent from other submissions the issue of the foreshore and seabed is not merely an abstraction or a matter of economic or political expediency for our people. Neither is it just a matter of property rights or a reaction against the original government plan to deny us due process.

Rather it is a fundamental issue about the constitutional nature of the relationship between Maori and the Crown and between Maori and the others who share this land. It is also not an exaggeration to say that it is indeed a matter of our survival as tangata whenua who can truly have a place to be tangata upon.

It is therefore foolish and simplistic to characterise it as a matter where the majority must prevail over a minority or to dismiss the Maori viewpoint as some kind of extremism or racial privileging when it is clearly a reflection of ancestral and Treaty rights that vest irregardless of numbers or race.

The current Crown proposals do not acknowledge the seriousness of the issue but proceed from misguided and unjust assumptions that still posit the Treaty relationship in terms of the superior and the subordinate. Ngati Kahungunu expected something better.

Omahu Marae, 12 September 2003.