Alert! the 2003 land confiscation plan
June / July 2003
- "Like a beached whale" A consideration of proposed Crown actions over Maori foreshore, Moana Jackson;
- A Foreshore Primer: Question and Answer Fact Sheet, Te Hau Tikanga / The Maori Law Commission;
- Labour Maori Caucus Statement;
- Greens urge government to listen to Maori.
Introduction and background information
Kia ora,
A kind of mass hysteria has broken out following the Court of Appeal’s judgment on Thursday, 19 June, which cleared the way for eight iwi at the top of the South Island to have their claim heard by the Maori Land Court.
The Court’s decision is being portrayed by some mass media reports as a source of fear and loss for Pakeha, as for example in:
"The Government is quelling Pakeha fears about a Maori claim to the seabed by promising a new law saying that the Crown owns the seabed and foreshore."(Audrey Young, NZ Herald, 24 June 2003); and
"The Government says it will legislate to prevent Kiwis losing access to the foreshore and seabed after a Court of Appeal ruling that the Maori Land Court can hear a claim." (David McLoughlin, Dominion Post, 24 June 2003).
This theme is being pushed by assorted politicians:
"It’ll also fuel racial tension as New Zealanders come to understand the threat to their rights to fish and enjoy the coastal environment. "The foreshore should not be privatised by stealth. It should be protected and managed for the benefit of all New Zealanders," says Dr Smith." (‘One standard of citizenship for our coast’, National Party press release, 19 June 2003);
"Access to these areas for commercial or recreational purposes are being part of a New Zealander and I call on the Government to clarify the law urgently to remove any uncertainty that has arisen, concluded Mr Dunne" (United Future press release, 23 June 2003); and
"Our glorious beaches, harbours and waterways must not become cause for misery. When the law creates uncertainty, as the Appeal Court has now, it is for parliament to deal immediately with that. I believe the Government will be able to count on ACT’s votes to deal with this before it becomes a weeping sore, Mr Franks said." (ACT press release, 23 June 2003).
On the other hand, there is frequent reference to "Maori outrage" in response to the government’s announcement of plan to legislate to extinguish Maori customary title.
It is crucially important at this time that the government and mass media are made aware that it is not only Maori who are outraged by this plan; but that Pakeha too are outraged by this arrogant dismissal of indigenous and human rights.
Background information
On Thursday 19 June, the Court of Appeal issued its judgment in respect of Ngati Apa and Others v Attorney-General and Others. The matter before the court was an appeal by the eight Iwi at the top of the South Island for their claim to the Marlborough seabed and foreshore (the area between high and low tide marks) to be considered by the Maori Land Court.
The government argued that under common law, and based on previous legislation, ownership of the seabed and foreshore resides with the Crown, and therefore any claim to the Maori Land Court could not succeed.
Rejecting these arguments, the Court of Appeal judges were unanimous in their decision that the claim should be put before the Maori Land Court for consideration; and that Maori customary title to seabed and foreshore has never been legally extinguished. In English common law, ownership of seabed and foreshore may reside with the Crown; but in NZ common law, law imported from the English system was modified by those property rights (ie Maori customary title) existing prior to the establishment of the state.
"When the common law of England came to New Zealand its arrival did not extinguish Maori customary title. Rather, such title was integrated into what then became the common law of New Zealand." (Ngati Apa and Others v Attorney-General and Others, 183).The Treaty of Waitangi did not give Maori customary title, rather the Treaty confirmed those property rights which existed prior to 1840. The assumption of sovereignty by the Crown did not give it ownership of all land.
On receipt of the judgment, Prime Minister Helen Clark and Attorney-General Margaret Wilson apparently went into panic mode:
"Ownership of the foreshore and seabed traditionally lies with the Crown, not iwi, says Prime Minister Helen Clark. "Ownership of the foreshore and seabed has long been considered to lie with the Crown and the Crown has made provision for regulation of its use in the national interest. In a democracy, citizens are free to explore what their legal rights are through the court system." (NZPA, 23 June 2003).
An announcement was made that the Government would legislate to assert the Crown's ownership of seabed and foreshore, and to extinguish Maori customary title. So much for citizens democratic rights "to explore their legal rights through the court system".
It is extraordinary that a government which says it is committed to reaching settlements to compensate for past wrongs inflicted on Maori, is now contemplating such a major breach of human rights and common law. Extinguishing Maori customary title is clearly an injustice which will create injury on a scale which would result in future claims against the Crown for many years to come.
While large scale land confiscation perpetrated by governments of the nineteenth and early twentieth centuries may have happened as part of the destructive colonial arrogance prevailing at the time, the current government does not have that excuse - surely they can move beyond such an approach in the twenty first century?
It is interesting that Helen Clark uses the phrase ‘national interest’ to describe her plan to extinguish Maori customary title - similar phrases such as ‘public interest’, ‘national good’ and ‘national interest’ were exactly those used to justify government land grabs in past centuries.
Interesting too this draconian over-reaction to Maori customary title and the hysteria about public access to beaches - given that this title existed prior to European settlement and to this day, and that Maori haven’t blocked public access over the past 163 years, why is this suddenly a cause for concern? As Moana Jackson’s paper points out, it is commercial enterprises and government departments rather than Maori which have blocked public access to foreshores.
Furthermore, the current government appears to have no problem about overseas ‘investors’ buying up coastal property and controlling public access because of their private ownership. The sale of Te Kuri a Paoa (Young Nick's Head) to foreign ownership last year is a case in point - if it were not for the public outrage expressed in the national campaign led by Ngai Tamanuhiri, that place of special significance for Maori and Pakeha would have been sold without guarantee of public access.
From a statement issued last night, it appears that the government may now be backing off slightly, and are talking about acting to preserve Maori ‘rights’ - such a dilution of the issue is not acceptable, there is a big difference between ‘title’ and ‘rights’.
There is absolutely no need for an autocratic reaction from the government to act to extinguish Maori customary title. The Court of Appeal judgment opens the way for a claim to be heard by the Maori Land Court; their judgment on the matter is some way distant in the future, and it must not be preempted by the Crown. If their eventual ruling preserves Maori customary title, then the responsibility is on the Crown to negotiate with Maori to reach a satisfactory agreement on access and other issues arising - not to arrogantly take away such title.
Peace Movement Aotearoa, June 2003
Abstract: "As our rights and our mana are slowly hacked away we become like a beached whale struggling to live on the shore." - Te Ataria, 1887.
This Paper considers the arguments used by the Crown in its recent decision to pass legislation dealing with Maori claims to the foreshore and seabed.
Because the issues raised by the Crown proposal are so far-reaching and impact so directly on the status of Maori as tangata whenua, and upon Iwi and Hapu Treaty rights, it may be helpful to put them in some context.
The Paper therefore has two Parts. Part One simply gives a brief time-line of events and the long Maori history of asserting and validating rights to the foreshore and seabed. Part Two analyses the main arguments that the Crown has used to justify its decision. Such analysis will hopefully be of some help as Maori consider possible future strategies because although the proposed legislation has not yet been drafted and the government is now promising extensive consultation it seems determined to pursue a course of action which will effectively "extinguish" long-held Maori rights.
Part one: the time line
In all Maori history and law the sea and land were the domain of different atua but interrelated in terms of the poetic metaphors of creation which linked all things together.
The authority which Iwi and Hapu exercised to safeguard and protect them was a fundamental component of mana and tino rangatiratanga because the seabed and foreshore were of the people as surely as the people were of them. It was a collective title and interest held of and for the collective.
That relationship and authority was clearly reaffirmed in Article Two of Te Tiriti o Waitangi.
The Crown however unilaterally claimed the right to own the seabed and foreshore as part of what it assumed to be its absolute sovereignty after 1840.
Maori never accepted that assumption and numerous protests and Court battles have been waged over the years to have Maori title recognised not just in terms of Maori law but the common law as well. In each case the Courts essentially held that with the "cession" of sovereignty by Maori to the Crown any Iwi and hapu claims were effectively "extinguished".
The latest of these battles was undertaken by the eight Iwi at the top of the South Island who for nearly a decade have diligently pursued due legal process to have their claims to the seabed and foreshore recognised.
On Thursday June 19 the Court of Appeal overruled the earlier decisions and decided that the eight Iwi could have their claim to the Marlborough seabed and foreshore (the area between the high and low tide marks) considered by the Maori land Court. It concluded that the nature and extent of the common law "customary rights and title" was in many ways unclear and needed to be argued in a specific case.
This quite narrow decision was widely misinterpreted by many Pakeha as restricting the ability of "every New Zealander to use the beaches which were their birthright" and a threat to future investment in marine development.
The very next day the Prime Minister announced that steps would be taken to confirm absolute Crown title over the foreshore because it was "important to establish what has long been assumed that the beaches and seabeds have long been there for all New Zealanders".
Her views were reinforced by Attorney General Margaret Wilson who announced that legislation would be introduced to "give clear expression of the Crown’s ownership of the foreshore and seabed".
Their actions effectively close off Maori access to a Court hearing and "extinguish" any possibility that the seabed and foreshore might belong to Iwi. They also raise major constitutional questions about Te Tiriti o Waitangi and the genuineness of the Crown’s good faith.
Part two: the Crown justification for its decision
The Crown has put forward a number of reasons for its decision but they seem neither logical nor valid in terms of its own law and Te Tiriti o Waitangi. In fact they are fundamental denials of Maori rights.
* The Free Access Justification:
The Crown has suggested that it needs to assume exclusive title to the foreshore and seabed in order to guarantee free access for everyone to beaches etc.
However the argument is misleading because there has never been unfettered access. Port companies, the Department of Conservation, and numerous other authorities have for years restricted entry to the waterfront.
It is also dishonest because it assumes that Maori would deny others normal use and enjoyment. That has never been the Maori intention and the possibility that it might occur in the future could be easily prevented with appropriate covenants about use rights as were often negotiated in pre-Pakeha Maori law.
It is also misinformed because in its parallel assumption that Iwi and Hapu might freely sell off the foreshore it ignores the collective nature of the interest which makes it non-tradeable.
* The Public Interest Justification:
The Crown justifies the legislation in terms of the "public interest" and to ensure the rights of "all New Zealanders".
However in denying Iwi a chance to have their claims heard in Court the Crown is effectively allowing the "public interest" to override a right of access to justice. That is essentially a breach of the Magna Carta and is not denied even to the most violent of criminals. Thus even though public interest might demand a murderer receive the stiffest possible sentence that interest does not override his right to a fair trial. The Crown is effectively denying Maori a "fair trial" on this issue.
It is also confusing the need to consider the "public (non-Maori) interest" with the right of the "Maori public" in terms of Te Tiriti o Waitangi. It thus redefines tino rangatiratanga as a minority interest when Treaty rights are never dependent upon numbers – if there was only one Maori left in Aotearoa he or she would still have Treaty and tangata whenua rights. In that context the "public interest" argument is a politically expedient distortion of the Treaty relationship.
It is worth noting that most other political parties appear to support the government and ACT has even put its own gloss on the "public interest" argument by seeking reassurances that "access to beaches ... will be available equally to all New Zealanders without distinction or privilege on the basis of race or ethnic inheritance". Such an approach diminishes the nature of the Treaty rights at issue which would be the same no matter what the "ethnic inheritance" of the parties.
* The Customary Rights Justification:
In a Parliamentary debate on Tuesday June 24 the Attorney General reassured Maori that customary rights would not be affected and that it was "the government’s intention to preserve the ability of Maori to pursue claims to the foreshore and seabed compatible with the Crown’s ownership rights".
There is at best a dubious logic in such an approach because in denying Maori title the Crown effectively restricts the nature of the customary right and makes it liable to future extinguishment by the Crown. As an analogy, if a couple has title to their home they can make whatever alterations they choose and exercise complete rights in relation to it. However if they are tenants and ownership is vested in someone else they cannot do so without permission and the extent of their rights is diminished.
The Crown proposal reduces Maori to tenants of the foreshore which Iwi and Hapu have exercised kaitiakitanga over for centuries. It subordinates tino rangatiratanga to the whim of the Crown.
Summary:
The proposed Crown actions have been rightly termed a new "confiscation" and they are certainly based on the same dubious assumptions and rationalisations that underpinned the raupatu of the 19th century.
They draw upon old colonising legal precedents which vested a self-defined power in the Crown to determine or deny indigenous rights. They thus maintain what the Lumbee jurist Robert Williams has called the "baseless substance of an illusion" that Indigenous Peoples can even be assumed to "consent" to such extinguishment.
They are not only "draconian" as described by one kaumätua but fundamentally unjust.
Moana Jackson, June 2003
This Primer canvasses some of the questions being raised in the current debate about the foreshore and seabed. It is based upon common concerns expressed by Maori over a course of Crown action that has already been labelled a new confiscation and which raises serious constitutional issues about the true nature of the Treaty relationship.
* Is this debate a new issue?
No. Ever since 1840 Iwi and Hapu have claimed that the foreshore and seabed fall within the exercise of tino rangatiratanga because they are both part of the whenua. However the Crown has assumed that it has absolute ownership of it and there have been numerous Maori protests and court cases through the years.
* So it's a Treaty issue then?
It is clearly covered as a Treaty right in Article Two which acknowledges that Iwi and Hapu have "exclusive and undisturbed possession" of lands etc.
However the Treaty merely reaffirmed a right and authority which Maori had exercised for centuries before 1840.
* Why has the debate become so prominent only recently?
The Court of Appeal decided on June 26 that the eight Iwi in Marlborough could have their claim to their stretch of foreshore and seabed heard in the Maori Land Court.
* Was the case decided as a Treaty issue?
No. The Court considered the matter as a common law issue because English and colonial law had long ago decided that "aboriginal" or "customary rights and title" continued after the Crown had established a colony.
The Court decided that it was the job of the Maori Land Court to define what they were.
* Are these common law "customary rights and title" the same as those claimed by Iwi before 1840?
No. There are similarities but the major difference is that the extent and nature of the common law version is actually defined by the Crown which has also assumed a right to extinguish or remove them.
What may be called the tipuna or Maori law version was defined by Maori - thus for example only Nga Puhi could define their rights and title and certainly no other Iwi had any right to extinguish them.
* So what was the government's reaction to the decision?
The day after the Court decision government raised objections and announced it would pass legislation clearly vesting ownership of the foreshore and seabed in the Crown. It effectively sought to override both the tipuna version and its own common law version of Maori rights.
* Why?
The Prime Minister and the Attorney General argued that it had always been "assumed" that the Crown owned the foreshore (had "title" to it) and that it merely wished to confirm that for the benefit of "all New Zealanders".
They also said Pakeha people were worried that Maori might block off access to the beaches or sell them.
There was also concern because many of the free trade agreements that the government enters into require that there be no confusion over title.
* Has the government done this kind of thing before?
Lots of times. Only a few weeks ago it rejected a Waitangi Tribunal Report acknowledging a Maori interest in oil and petroleum.
* Did the government discuss the issue with Maori?
No - not even its own Maori MP's.
* Do the other political parties support the Government?
Most appear to do so.
ACT and National have already said the Crown must immediately extinguish any Maori claims to title because of the "public interest" and because there must only be "one standard of citizenship for all".
* What is the current government position?
It has effectively not changed since its original announcement.
The obvious Maori opposition to its policy has resulted in meetings with Maori caucus and other Maori groups but its basic stance is still that it will legislate to take ownership while recognising certain "customary uses". It has also raised the possibility that compensation for Iwi might be considered.
* Isn't that some sort of progress though?
The extent of progress always depends where you measure it from and the government's current position as outlined by Michael Cullen is seriously flawed.
It justifies caucus discussions because it has "an electoral mandate to represent Maori" but their representation is within the government - the Crown in effect is talking to the Crown.
It illustrates its argument that the key issue now is customary use by suggesting that Maori never had a concept of ownership. However the use absolutely depended upon the "title" of rangatiratanga - without that title and its "full and exclusive" authority the rights could not be properly protected or exercised.
In that context the issue is a fundamental constitutional one and such questions are never best or finally settled by the payment of compensation.
* What does the government decision mean?
It blocks access to the courts for those iwi and Hapu who wish to pursue common law claims. In effect the government is denying one of the fundamental rights in the Magna Carta.
It subordinates rangatiratanga to the whim of the Crown and acts in breach of the Treaty.
It assumes Iwi and Hapu are claiming 'special' rights from the Crown when in fact Maori are simply trying to reaffirm rights that have been in existence for centuries.
It suggests the Crown needs to assume exclusive title to the foreshore and seabed in order to guarantee free access for everyone when in fact under Maori law covenants of use could always be negotiated.
It incorrectly implies that Iwi and Hapu might freely sell off the foreshore when in fact an interest held collectively and exercised according to tikanga was non-tradeable.
* What are Maori doing?
The government has left few options open for Maori. However a National hui has been called in Paeroa on the 12th of July.
Some Iwi and other groups are still trying to pursue their court actions and lodging new claims with the Waitangi Tribunal.
Others are organising actions to block beach access to Crown officials without obstructing the public in any way.
* The Customary Rights Justification:
In a Parliamentary debate on Tuesday June 24 the Attorney General reassured Maori that customary rights would not be affected and that it was "the government's intention to preserve the ability of Maori to pursue claims to the foreshore and seabed compatible with the Crown's ownership rights".
There is at best a dubious logic in such an approach because in denying Maori title the Crown effectively restricts the nature of the customary right and makes it liable to future extinguishment by the Crown. As an analogy, if a couple has title to their home they can make whatever alterations they choose and exercise complete rights in relation to it. However if they are tenants and ownership is vested in someone else they cannot do so without permission and the extent of their rights is diminished.
The Crown proposal reduces Maori to tenants of the foreshore which Iwi and Hapu have exercised kaitiakitanga over for centuries. It subordinates tino rangatiratanga to the whim of the Crown.
Prepared by Te Hau Tikanga / The Maori Law Commission, July 2003.
Following the Labour Party caucus this morning the Prime Minister has agreed that she, Attorney-General Margaret Wilson and Deputy Prime Minister Michael Cullen will lead a committee engaging with the Maori caucus to explore the definition, application and implementation of Maori customary rights to seabed and foreshore.
The government has said it would prefer to resolve these issues through public policy processes, rather than through litigation. The Maori caucus will be involved in the design of those policy processes, to ensure that the views of tangata whenua are considered.
Under no circumstances is the government extinguishing Maori customary rights. It is merely setting out a process in light of the circumstances where those rights can be recognised.
The Appeal Court decision (para 16), quoting extracts from the Privy Council, says: ... "it cannot be too solemnly asserted" that native property over land is entitled to be respected and cannot be extinguished ("at least in times of peace") otherwise than by consent of the owners.
The land wars are over, so the consent of tangata whenua is required before customary title can be extinguished. Otherwise it is a confiscation, and is likely to breach international law.
The Maori caucus is clear that customary use flows from customary title, and if the title is lost, the rights of tangata whenua become privileges granted by the Crown.
The Appeal Court decision is not an attack on the rights of other users of foreshore and seabed. It is accepted that a number of rights - public, private and government - apply to the foreshore and seabed. As always, existing rights regarding Treaty matters will be upheld. Our minds will focus on this matter as we respond to the aquaculture reform legislation, marine reserves and our oceans policy generally.
The Maori MPs noted that tangata whenua have never excluded others from their customary lands, provided wahi tapu are respected and natural resources are not damaged or depleted.
Statement from the Labour Maori Caucus, 24 June 2003
The Green Party is accusing the Government of acting in bad faith over its knee-jerk decision to legislate against Maori customary ownership and use of the seabed and foreshore.
" Sadly, the Government appears to have been motivated more by the bigoted scaremongering of other parties, than by its duty to consult with Maori over Treaty issues," Green Maori Affairs spokesperson, Metiria Turei said today.
" Rather than slamming them with a legislative hammer, the Government should be talking to Maori about the alternatives and looking at examples where Maori ownership has not excluded public use, such as Lake Taupo.
" Labour's heavy-handed response to this issue, and to the question of rights to oil and gas, demonstrate an unfounded lack of trust in Maori as a treaty party and must bring into question its future relationship with Maori.
" It's good to see the Maori Labour MP's finally raising their concerns about their Government's actions but the heat is now on Labour to prove that that its claim to 'represent' Maori is more than just a cynical election ploy.
" The Government should immediately withdraw its threat of legislation as a gesture of good faith and engage in meaningful dialogue with Maori," said Metiria Turei. " That would be in the spirit of a true partnership."
Metiria Turei, Green Party MP, 26 June 2003.
What you can do
* Letters opposing the plan to extinguish Maori customary title, and supporting the position of the Labour Maori Caucus, should be sent to: Helen Clark, Prime Minister, email or fax (04) 473 3579; Michael Cullen, Deputy Prime Minister, email or fax (04) 495 8442; and Margaret Wilson, Attorney-General, Minister for Treaty of Waitangi Negotiations, email or fax (04) 495 8460.
* Letters in support of the Labour Maori Caucus, and copies of any letters sent to other politicians, should be sent to: Parekura Horomia, Minister of Maori Affairs, email or fax (04) 495 8475; Tariana Turia, Associate Minister of Maori Affairs, email or fax (04) 495 8472; and John Tamihere, Associate Minister of Maori Affairs, email or fax (04) 472 8032.
* It would be great if you could also send copies of any letter/s to Metiria Turei email and to Peace Movement Aotearoa email or fax (04) 382 8173 - we would also appreciate receiving a copy of any replies you receive.
If you are posting your letter/s, each should be addressed to the relevant politician and posted (no stamp needed) to Parliament Buildings, Wellington. * If you wish, you could also write to the Governor General expressing your concern about the government plan and asking her to use her prerogative power to ensure that the government does not breach common law. Contact details: Dame Silvia Cartwright, Governor General, post to Government House, Private Bag,Wellington or fax (04) 389 5536.
* Contact details if you wish to write letters to the editor/s of the nationally circulated mass media: Christchurch Press email or fax (03) 364 8492; The Dominion Post email or fax (04) 4740257; New Zealand Herald email or fax (09) 373 6434; Sunday Star Times, fax (09) 309 0258; Listener email or fax (09) 360 3831.
And finally, there have been rather a lot of absurd statements made by politicians about this matter over the past week; of these one of the most bizarrely entertaining has to be Nick Smith’s:
"Far from acting decisively on this issue, Helen Clark has added fuel to the fire with comments like ‘in a democracy citizens are free to explore their legal rights through the court system.’ ... " (‘Coastal claims set to become power keg’, National Party press release, 23 June 2003).Remember that one come the next election!
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