Submission - Brian van Dam

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A submission on 'Government Proposals for Consultation: The Foreshore and Seabed of New Zealand' from Brian van Dam.

Introduction

I am a Pakeha citizen of Aotearoa (NZ), and have been resident, predominantly in urban areas, in NZ for several decades.

I am involved in several NZ community groups working on redressing issues of peace, justice and human rights, both in NZ and overseas.

This submission reflects my individual opinion.

My position and opinions expressed here reflect a desire to see a proper partnership relationship between the Crown and its citizens (myself included) and Maori established, which includes redress for past actions and inactions that have caused wrong. Such a partnership arises not just from the legal terms of the Treaty of Waitangi, but from my desire to see the beliefs of catholic social justice teaching (particularly that of liberation theology) enacted in our daily lives.

Issue Defined

The stimulus for discussion of ownership and access to NZ coastal areas and seabed was the findings of the Court of Appeal, which determined that Nelson hapu could bring issues of ownership of the foreshore and seabed to the Maori Land Court for determination.

This application by Nelson Maori to the NZ courts system primarily stemmed from concern over damage to the marine environment in the Nelson/Marlborough Sounds area, and their need to exercise responsible guardianship over this environment.

This application by Nelson Maori to the NZ courts system in itself reflects a huge concession by Nelson Maori of their Treaty of Waitangi rights, as it de facto grants some form of legitimacy to the NZ court system to rule over ownership of resources that many Maori do not see as being within the authority of the NZ government (the Crown).

The findings of the Court of Appeal did not rule on the substantive issue of forshore and seabed ownership, but on the rights of Nelson Maori to take their ownership concerns to the Maori Land Court.

NZ Crown Response to Issue

From this ruling, the Crown rapidly and publicly proclaimed the need to secure `public access' to the foreshore and seabed. This was followed by a variety of (at times conflicting) statements by the Crown as to what measures they proposed to address the issue of foreshore and seabed ownership and access, and finally by a written Crown proposal that was opened for public submission for six weeks. Specific hui at various locations in NZ were arranged as part of the Crown submission process to hear Maori views.

It should be recognised that on any proposal affecting such a major issue as ownership and access to land rights (whether above or below water or ground level), a six week submission period from time of proposal release is totally inadequate. Many NZ people remain unaware of the content of the Crown proposal and even of the actual issue. Far greater responsibility needs to be taken by the Crown towards publicising a jointly agreed (between Maori and the Crown) compilation of the facts of the issue, and supporting public forums to discuss the issue, with greater time left for people to then put their suggestions into written submissions.

Specifically, the hui process of discussion on the issue adopted by the Crown has overwhelmingly rejected the Crown proposal. This despite reportedly very inappropriate behaviour by some Crown representatives within the marae that the hui were held in.

It has been announced in the proposal that the Crown will seek to legislate to legitimise its claim to ownership and authority over the foreshore and seabed within the area of its authority.

Analysis of NZ Crown Response to Issue

It is noted that the NZ Crown public response and proposal on the foreshore and seabed issue reflects a colonial imperialist mindset underpinned by capitalism. This mindset in large part led successive NZ governments (representing the continuity of the NZ Crown) to believe they had ownership rights to the foreshore and seabed, despite a total absence of any documented evidence for their ownership. This is reflected in the principle of `Regulation', and the subsidiary principles of `Access' and `Protection' (the latter appears to grant rights to Maori, but relies upon an assumption of Crown ownership).

Prior to Pakeha settlement in NZ, and from the earliest stages of Maori recognition of NZ Crown representatives (including Governor-Generals, colonial, dominion and Commonwealth government), systems of ownership receipts for major items of ownership have been in place.

Specifically, title deeds have been used for land, water and underground ownership; a system of registration has been used for motor vehicles, etc.

At no point has the NZ Crown produced any evidence, either in the form of title deeds or otherwise, to suggest they may be the legitimate owners of the foreshore and seabed within the area of their authority.

Iwi and hapu similarly do not have written document proof of ownership normally, but this stems from a recognised system of values that placed land outside of the trading system, until the arrival and interaction with Pakeha settlers.

As such, the NZ Crown is in error in believing it has legitimate title to the foreshore and seabed with the area of its authority.

Public access, which has been brought to the forefront of any discussion of the foreshore and seabed issue by Crown comment and through the adoption of the principle of `Access' in the Crown proposal, has in fact little to do with the matter. Public access rights stem from ownership rights (communal or individual); as the Crown lacks legitimate ownership rights, it needs to negotiate afresh access rights for the public represented by the Crown (which includes under the Treaty of Waitangi citizenship conferral upon Maori, those Maori who have greater access rights by reason of membership of a given iwi or hapu with ownership rights to a given parcel of the foreshore or seabed).

In particular, Crown proposals for `customary rights' and cessation of Maori title and control over the foreshore and seabed (other than through recognised legal transfer of title by Maori to NZ Crown), are intrinsically racist and discriminatory in my view. Maori, through their iwi and hapu, are being treated in different manner regarding the ownership and public access rights of foreshore and seabed, than any other racial or ethnic group of land owners in NZ. Many NZ people (and overseas investors) `own' huge tracts of land in NZ, including `ownership' or `access rights' over the adjoining foreshore and/or seabed. Marine farmers, marina operators, and private jetty owners have all been granted `rights' over the foreshore and/or seabed without the Crown claiming a threat to accessibility for the public of NZ, yet when Maori exert ownership rights to foreshore and seabed, the Crown puts forward proposals to legally extinguish such ownership rights (and even the possibility for Maori to prove such ownership rights in the NZ courts system).

The arrogance of the Crown efforts to define terms used in discussing the issue is reflected in the Crown proposal principle of `Protection'.

The word `Protection' to define this principle is paternalistic and patronising. It reflects a Crown attitude of authority over Maori that is not reflected in the partnership established through the Treaty of Waitangi. It is not the place of the Crown to `protect' Maori other than through their Treaty guaranteed citizenship rights within the Crown. This can perhaps best be thought of as similar to dual citizenship, whereby Maori have both a citizenship in the NZ Crown entity, and a citizenship within their respective hapu or iwi. Neither citizenship right need undermine or lessen the other citizenship; in fact, the Treaty explicitly recognises the equal nature of this citizenship.

Crown use of language reflects a desire to modify or extinguish Maori land rights. The phrases `tipuna title', `customary rights', etc are terms used to minimise or abrogate any claim to ownership iwi or hapu may have.

It should be noted that while the extent of rights can be negotiated between parties, the definition of terms to express Maori notions by the Crown is unacceptable. The NZ Crown would rightly reject any attempt by another party to define terms that described the powers, ownership, authority or composition of the NZ Crown; Maori similarly have the right to define themselves and their own notions of guardianship, ownership, etc. Once Maori have defined the terms that describe the objects involved in the foreshore and seabed discussion, these terms can be used by all parties to negotiate the extent of any foreshore and seabed rights or ownership.

Suggested Response of NZ Crown to Issue

It is suggested that the NZ Crown, through the current and future governments:

Respect and acknowledge publicly the right of Maori under the Treaty of Waitangi to tino rangatiratanga, including the right to dispose as they see fit any resource under their own ownership or control.

Acknowledge publicly, in both vernacular and legal terms, the ownership of the totality of the foreshore and seabed within NZ Crown authority as residing with the respective iwi and hapu controlling those areas as at the time of the signing of the Treaty of Waitangi. That is, ownership of those areas of the foreshore and seabed currently viewed by the NZ Crown as under their sovereignty that lay within the control of a given iwi or hapu in 1840, should be returned to that given iwi or hapu. Such return of ownership is not to be limited in sovereignty or rights in any way.

Appropriate compensation, at a level mutually agreed by Crown and iwi or hapu concerned, is to be given to each iwi or hapu for the abrogation of their foreshore and/or seabed rights over the period of the abrogation. Such compensation is to be given in such form as mutually agreed by the Crown and the iwi or hapu concerned.

The NZ Crown should enter negotiations with iwi and hapu, collectively if possible, as individual iwi or hapu if not, to reach an agreement to obtain:

public access to appropriate areas of the foreshore and seabed owned by each iwi or hapu,

non-commercial gathering rights of kai moana within the areas of the foreshore and seabed owned by each iwi or hapu,

commercial gathering rights for kai moana within the areas of the foreshore and seabed owned by each iwi or hapu,

conservation of endangered species of flora and fauna that may at times reside or pass through the areas of the foreshore and seabed owned by each iwi or hapu,

any other such rights of use or ownership as may be deemed fit by the NZ Crown and the iwi or hapu concerned.

The NZ Crown should begin immediate thorough reinvestigation and negotiation with iwi and hapu over the rights and ownership held by iwi and hapu under `dry land' (mineral, oil, gas, etc rights) as recently recognised by the Waitangi Tribunal and nullified by the Crown.

The NZ Crown should issue at an appropriate time no later than the conclusion of above negotiations, a public apology for the theft of Maori land rights over the foreshore and seabed.

The Crown proposal as set out is TOTALLY OPPOSED!!! Should the Crown continue with this proposal, or any proposal of similar intent and effect, the enactment of legislation would constitute theft on a vast scale as far as I am concerned. Such Crown actions would remove any legitimacy they may claim to have, and would morally and legally (in international law) sanction actions by Maori and their allies to recover their stolen lands.

I look for a NZ Crown government with the responsibility, honesty and mana to acknowledge the wrongs committed against Maori (wittingly or unwittingly) in the past and present, and to search through careful, respectful dialogue for ways to redress such wrongs. Redress here is meant to include full recompense, including return of stolen property (including lands - above or below ground or water).

Brian van Dam
3 October 2003

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