"There are obligations there"

Abstract:

"The sea was before the land and sky, cleansing, joining, and where the sea meets the land there are obligations there that are as binding as those of whakapapa." - Teone Taare Tikao.

This brief Paper attempts to outline some of the broader Maori-based issues surrounding the foreshore and seabed and the kaitiaki responsibilities that are inherent within them. It suggests that they provide a fairer and more equitable means of resolution to the current debate than that envisaged by the Crown and thus ensures a more honourable base for the Treaty relationship.

The Paper positions the issues as an expression of Iwi and Hapu rights and obligations that are determined by the exercise of rangatiratanga as distinct from use rights and title as defined by the common law.

Those rights and obligations are tikanga or Maori law-based and are parts of the whakapapa linking the land and sea to the guardianship and authority of Iwi and Hapu.

They are absolute rights and obligations but they were never exercised or claimed in an absolute way that unreasonably or unjustly denied others the ability to share in the use of certain resources because to do so would be contrary to the reciprocity inherent in whakapapa.

At the same time they could neither be subordinated to, nor extinguished by another, because to do so would be to subordinate or extinguish tikanga and thus rangatiratanga itself.

The Paper acknowledges that the issue is essentially a constitutional one.

Introduction:

As often happens in debates over major issues between Maori and the Crown the parameters of the discourse about the foreshore and seabed have been set by the Crown within common law rules and its own view of its authority.

This was perhaps inevitable because the political issue was prompted by the Court of Appeal decision which was of course decided in terms of the common law. In that context there are persuasive arguments that the Crown's common law response is in fact incorrect and contrary not only to long-standing Court decisions but also established constitutional traditions. Indeed the judgement was based on accepted precedents which the Crown is now choosing to override and there are clear constitutional conventions which regard legislation as a breach of the rule of law if it reverses the outcome of a case and not merely the application of that law to future cases.

However it is clear that whatever reading is given to the common law rules they were developed as part of what the Lakota jurist Vine deLoria has called "a discourse of dispossession" that subordinated indigenous rights to the overriding interests of the colonising State. Notions of "customary use" and even "customary title" in the common law therefore became a set of sub-rights which colonising powers assumed they could describe and extinguish (with or without "consent"). They ceased to be the custom and tikanga as defined by the peoples concerned and became "pre-existing practices" determined according to the custom of the colonisers.

The Crown's response seeks to retain that colonising determination but rephrases it by emphasising the need to consider the "public interest" and the rights of "all New Zealanders". However such reasoning actually confuses the "public (non-Maori) interest" with the right of the "Maori public" in terms of Te Tiriti o Waitangi and in fact constrains the ability of Maori to exercise the rights and authority contained therein. It subordinates both the nature and meaning of Maori-defined rights and rangatiratanga itself to the whim of the Crown.

There is therefore a very real constitutional danger in accepting a common-law based resolution (whether enacted through legislation or not) because it renders tikanga as a simplistic concept controllable by the Crown and closes off possibilities for constitutional change that will ensure the more effective exercise of rangatiratanga.

Yet there are other parameters to the debate that are sourced in tikanga and in what Justice Eddie Durie has called "Maori custom law". They avoid the notion of sub-rights and provide a context which recognises te hononga mai i a Tangaroa raua ko Hinemoana ki Tane Mahuta raua ko Hinetewaonui.

They suggest the possibility of a "win-win situation" that is actually impossible within the current Crown proposals which necessarily confine our people to a position of loss simply because they recognise Maori rights only in ways that "are compatible with Crown title".

The nature of the obligations there:

Because of the context within which common law (and hence the Crown) notions of "customary use and title" are developed and perceived any attempt to resolve the foreshore debate in those terms distorts the values base of the "custom law" which should regulate the relationships between Iwi and Hapu and their lands and in fact between Maori and others who are here because of Te Tiriti o Waitangi.

It also traps Maori in terminology that restricts kaitiakitanga to a Crown-defined management role instead of situating it as a component of rangatiratanga which necessarily involves much more than management.

By its very nature the current Crown approach is both delimiting and exclusionary - it is based less upon an obligation to protect and share and more upon an assumed right to control. It accepts "exclusive title" as a right to exclude rather than a specific authority vested in certain collectives to nurture and sustain.

It assumes "customary use" as something stripped of the links between values and obligations and between obligations, relationships, and authority. Indeed as Jason Pou has noted "it is tantamount to describing the relationship between tuakana and teina as merely one of customary use" when in fact it is sourced in all sorts of reciprocal obligations and relationships as well as different perceptions of authority.

Many Iwi and Hapu have seen the obligations inherent in their relationships to the seabed and foreshore as being similar to the values that pertained to the storage of kumara when they were placed in a rua for preservation after harvest. Mereiti Rarere noted in 1959 that "The rua was never locked away but it was protected and sometimes even rationed, and in the same way Tangaroa and Hinemoana never intended their bounty to be locked up but its use was to be regulated so that there would always be plenty for the mokopuna. In the same way the kai and the wood in the forest was always available but regulated. The restrictions and regulations were always based upon whakapapa although the sharing could extend beyond the whanau and hapu. It was a very generous but careful way of doing things".

The Maori legal construct of seabed and foreshore use and access (the "obligations that are there") thus had several interrelated parts -

1. It flowed, as all law does, from the exercise of a constitutional and political authority, specifically the mana or tino rangatiratanga of Iwi and Hapu.

2. It was derived from the clear values of reciprocity, maintenance, and sustainability that are inherent in kaitiakitanga.

3. Its primary purpose was the well-being of those bound by whakapapa, but rather like the kawa of the marae the reach of its manaakitanga could include those not directly related.

4. In some cases specific use covenants were negotiated to ensure access on terms consistent with tikanga.

5. Like whakapapa it was a construct that could never be voluntarily given away nor denied by somebody else.

In a very real sense the rights and obligations were values-based in kaitiakitanga but were given expression through the political exercise of rangatiratanga. They gave meaning to tikanga not just as a set of rituals or ethics but as a template for legal and constitutional authority.

The current Crown approach and indeed even the common law discourse enunciated by the Court subsume that authority and reconstruct the values upon which it is based. There is therefore a very real need for the Maori to seek resolution in a way that re-situates the issue within the constructs of Maori law if rangatiratanga and thus our rights are not to be further diminished.

That will in turn require the Crown to have the political courage and intellectual insight to work outside the square of its current paradigms.

Moana Jackson
July 2003