Some Core Values for Resolving the Foreshore and Seabed Issue
16 August 2003
This Paper has been prepared after considerable discussion to help Iwi and Hapu identify some of the core issues which could be a basis for resolving the foreshore and seabed issue.
In particular it seeks to clarify some of the difficulties inherent in the strictly common law approach and in some of the consequences which flow from it.
It also points out how those difficulties underpin certain Crown assumptions which are not only clear breaches of Te Tiriti o Waitangi but also contradict the authority of te tino rangatiratanga as exercised by Iwi and Hapu prior to 1840.
1. (a) The ideas of 'customary title' (and therefore 'customary use') as defined in the common law were never developed as affirmations of traditional or tupuna title and rights as defined and exercised by Maori and other Indigenous Peoples.
(b) Rather they were defined by the Crown as a means of creating interests which could be defined as subordinate to its own because it was considered that Indigenous peoples were only sub-humans entitled to sub-rights. They continue to be defined in this way today.
2. An inevitable consequence of their subordinate nature is that the Crown has assumed a right to extinguish them, either through legislation or by 'consent'.
3. (a) Extinguishment has become an accepted Crown practice but it is based on ancient and dubious assumptions. It is also clearly not part of the authority of kawanatanga granted to the Crown in Te Tiriti, particularly because it was never a right recognised by Iwi and Hapu prior to 1840.
(b) There is no history of one Iwi ever consenting to another Iwi extinguishing its rights simply because they were sourced in the mana and rangatiratanga of Iwi which could never be taken over or away by some other entity.
4. (a) The Crown often offers compensation for extinguishing the 'customary rights and title' that it defines but in the foreshore dispute such an offer confuses the issues.
(b) The Crown does owe restitution to Iwi and Hapu but it is for the denial of our tipuna title for over 160 years in clear breach of Te Tiriti.
(c) It is not, and should never be seen as, a quid pro quo for extinguishing title and rights which the Crown had no authority to define in the first place.
1. The nature and extent of Iwi and Hapu title and rights to the foreshore are aspects of te tino rangatiratanga which only Iwi and Hapu have the right to define.
2. The concept of a subordinate 'customary title and rights' is an unjust and illogical remnant of a racist and colonising jurisprudence which has no place in a Treaty-based discourse of the 21st century.
3. The consequent notion of a Crown right to extinguish the tupuna title and rights of Iwi and Hapu, and the assumption that such extinguishment can be consented to, also has no place in the discourses of the 21st century.
4. Rather the Crown should negotiate in good faith with Iwi and Hapu to ensure that tupuna title and rights are recognised and exercised in such a way that guarantees access on reasonable terms for others in the community.
5. The Crown should also negotiate in good faith with Iwi and Hapu to determine the amount of compensation payable by the Crown for past denials of tupuna title and rights to the foreshore and seabed.
6. Such compensation could be made available for the use of Iwi and Hapu to develop resources in aquaculture and marine farming if they so choose.
Prepared by Te Hau Tikanga, the Maori Law Commission,
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