26 August 2003

Government Proposal Amounts To An Erosion Of Maori Customary Rights

Te Ope Mana a Tai, a Steering Group led by Te Tau Ihu Iwi believes the Government’s proposal will effectively erode and restrict Maori customary rights rather than protect them.

Spokesperson Paul Morgan says, “It is clear that the Government’s three principles of public access, Crown management and certainty for other users over-ride and subordinate the protection of Maori customary rights.”

Te Ope Mana a Tai believes the public are being grossly misled about the true nature and extent of customary rights.

Paul says “There is no mention in the Government booklets about the recognition of customary rights by successive New Zealand govenrments and the court system since 1840. In my view, the Government is deliberately under-stating the scope and nature of those rights.

“The Government is attempting to reduce our customary rights to discrete activities like gathering pipi. Customary rights are much more than that. They include the right to manage an area, develop an area for cultural and economic benefits and the rights of use and access.”

Paul says Te Ope Mana a Tai is appalled that the phantom issue of public access has resulted in a reactionary proposal which seeks to further erode Iwi customary rights. “Iwi have repeatedly said they have no intention of denying the public access to beaches. We see no reason why Iwi ownership or kaitiakitanga of the foreshore and seabed cannot co-exist with public access.”

Te Ope Mana a Tai will be formally presenting their analysis of the Government’s proposal at the national hui at Omaka marae in Blenheim this weekend.

ENDS.

PAPER ATTACHED

Analysis of Government’s Proposals

SUMMARY

The proposals set out by the Government overlook many of the basic principles relevant to the protection of customary rights. Throughout the proposals customary rights are completely subordinated to the public interest. We note that other assumed rights within the coastal marine area (such as access) are specifically recognised and protected and are not required to be proven on a case by case basis by those asserting that such a right exists.

To the extent that any detail is given in relation to proposals to protect customary rights it is expressed as restrictions on the nature and form those rights must take.

It is hardly surprising that the proposals are defective, given that they were prepared in isolation from any input from Iwi/hapu, notwithstanding offers made by Iwi/hapu to work with the Government on the issue. The supporting information is selective and in places misleading.

Nothing in the Government’s proposals materially advances the position of Iwi/hapu in protecting customary rights within the coastal marine area and should be contrasted with the Discussion Framework on Customary Rights to the Foreshore and Seabed previously issued by Te Ope Mana a Tai. We suggest that Iwi/hapu read the Te Ope Mana a Tai discussion document which is available on www.tokm.co.nz.

DOCUMENTS RELEASED BY THE GOVERNMENT

The Government has released an information pack entitled “The Foreshore and Seabed of New Zealand". The pack contains the following documents:

- Press statement
- The Foreshore and Seabed of New Zealand -- Information Booklet
- The Foreshore and Seabed of New Zealand: Protecting public access and customary rights -- summary of the Government’s proposals, August 2003
- Foreshore and Seabed -- Government proposals for protecting public access and customary rights -- Frequently Asked Questions and Answers
- Fact Sheet: Customary Fishing
- Fact Sheet: Customary Interests in Treaty Settlements
- Fact Sheet: Types of Coastal Space

The substantive proposals are contained in the information booklet. None of the other documents released by the Government contain detailed proposals for the resolution of the foreshore and seabed issue. The press statement is largely a summary of the Summary of the Government’s Proposals document, while the summary itself is very short on detail. Finally, the Frequently Asked Questions and Answers are little more than propaganda to support the proposals announced by the Government.

All documents can be found at: http://www.beehive.govt.nz/foreshore/docs and the information booklet can be found at: http://www.beehive.govt.nz/foreshore/docs/booklet.pdf.

THE FORESHORE AND SEABED OF NEW ZEALAND -- INFORMATION BOOKLET

The information booklet is divided into four parts:

- Part One Introduction and Background
- Part Two Solutions
- Part Three Conclusion and Summary of Questions
- Part Four Providing Feedback

Each of the different parts of the booklet raises a number of different issues. Each part will now be considered.

Introduction and Background

The document begins by identifying four principles which the Government believes provide the basis for legislation to settle the issues arising with foreshore and seabed. These principles are not further discussed in the first part of the booklet and this analysis will deal with the content of the principles in relation to part two of the booklet.

After defining the foreshore and seabed, the coastal marine area, and the exclusive economic zone, the booklet considers the Queen's chain and the interrelationship between the Court of Appeal judgment, access to the coast where the adjoining land is in private hands, and the question of whether the Queen's chain should be extended around the New Zealand coast. No conclusions are drawn in this part of paper but clearly the Government sees all three issues as being linked.

The booklet then attempts to define customary rights (page 7). The brief summary provided is grossly misleading to those unfamiliar with the recognition of customary rights in New Zealand or indeed developments in the recognition of customary rights internationally.

There is no recognition that successive New Zealand governments since 1840 have recognised customary rights to land, nor is there any recognition that the Maori Land Court itself was set up specifically to act as a mechanism to translate customary rights into legally recognisable titles and has been doing so since 1865.

The document also ignores the current legal test for determining whether land is Maori customary land namely “ held in accordance with tikanga Maori". Instead the booklet states:

“ New Zealand law is not well developed in this area. The courts in other countries have developed tests for determining whether a customary right should be recognised. If those tests were applied by the courts in New Zealand the person claiming a customary right would need to demonstrate that:
- the interest or activity is an element of the practice, custom, or tradition integral to the distinctive culture of the group claiming the right.
- The interest or activity was being undertaken at the time of the signing of Treaty of Waitangi (1840) and continues to be undertaken.
- The customary right has not been extinguished by or under law, for example by the imposition of a conflicting statutory regime to regulate the activity or the space, or the legal grant of the space to another person"

Under the current law of New Zealand (the present test in Te Ture Whenua Maori and the common law) none of the three elements set out above are required to be demonstrated. The Crown is now trying to restrict the scope and ability of tangata whenua to prove their customary rights. In this proposal alone the Crown is significantly raising the barrier to the ongoing recognition of Maori customary rights. The Crown does not acknowledge that the proposed test relies almost entirely on a restrictive test adopted in Australia that inhibits rather than enables the recognition of customary rights, that is inappropriate in New Zealand.

Other issues arising with the way in which customary rights have been articulated in this section of the booklet include the fact that there is no discussion of any development rights for customary rights that are held, even though the 1992 Fisheries Settlement is referred to.

The next section of the booklet discusses the relationship of customary rights and the Treaty of Waitangi (page 8). As with the preceding section the discussion is poorly drafted and lacks integrity. There is no discussion of how customary rights have been consistently, if sometimes belatedly, recognised in New Zealand and the role of the Maori Land Court in that process. The booklet misleadingly suggests that customary interests have always been dealt with from a broader Treaty based point of view “…which tends to focus on the forward-looking practical and political relationship between the Crown and Maori". This in fact is a much more recent phenomena and to assert otherwise runs counter to New Zealand history. The relationship between customary rights and the Waitangi Tribunal claims process is also poorly defined.

The booklet then turns to a summary of the Marlborough Sounds case (pages 9 -- 10). The introduction to this subsection recognises that “Maori have often asserted customary interests in the coastal area", but then states the arguable proposition” [t]he current statutes in this area provide significant recognition of Maori interests, but do not accommodate the idea that there might be customary interests that amount to ownership". Such a statement ignores the ongoing Iwi/hapu protest about the lack of recognition of customary rights in the coastal marine area.

The booklet contains a hardly flattering or informative section on why Te Tau Ihu Iwi brought the Marlborough Sounds case and a similar section detailing the Crown's assumptions of ownership over both the foreshore and seabed (page 9). The booklet notes that the Court of Appeal has held that the Maori land Court has jurisdiction to hear the claims but emphasises the difficulties faced by the applicants.

In connection with the jurisdiction of the Maori Land Court the booklet suggests that the “system was designed with only “dry land" in mind". This is entirely inaccurate; the Maori Land Court has since 1870 considered claims by Iwi/hapu to land on the foreshore and land below water.

The final subsection of the first part is a section on the issues for the Government. The starting point for the Government is that as well as the public uproar created by the Court of Appeal decision, the possibility of the freehold titles to the foreshore and seabed would also “create significant legal uncertainty and administrative confusion, because it is not clear how private ownership of the foreshore and seabed would affect activity in the sea itself " (page 11). To resolve this uncertainty the Government announces its intention to develop new legislation:

“ ..which will provide clarity and certainty on how the various interests can be reconciled going forwards"

The Government's proposed solutions are set out in the next part of the booklet.

Solutions

As noted that the beginning of part one, the Crown has developed four principles which it suggests provide an appropriate starting point for a solution. Those principles are:

- Principle of access -- the foreshore and seabed should be public domain, with open access and use for all New Zealanders
- Principle of regulation -- the Crown is responsible for regulating the use of the foreshore and seabed, on behalf of all present and future generations of New Zealanders
- Principle of protection -- processes should exist to enable the customary interests of whanau, hapu and iwi in the foreshore and seabed to be acknowledged, and specific rights to be identified and protected
- Principle of certainty -- there should be certainty for those who use and administer the foreshore and seabed about the range of rights that are relevant to their actions

Each principle is then discussed in turn, and various questions are asked in relation to the principles and the detailed discussion of each principle.

Principle of Access

In the discussion on the principle of access it is significant that the subsections dealing with “the legal and practical limits on public access/ general principle of access” there is no discussion on the customary rights that exist in the coastal marine area.

The principle of access is entirely couched in terms of the aspirations of the New Zealand public generally and there is no attempt to reconcile the property rights held by Maori with such aspirations. The two options identified by the Government (on pages 18 and 19 respectively) entitled “A legislated right of access" and “Negotiating greater public access over time" contain no reference to Maori customary rights.

The possibility that exclusive Maori customary rights may exist in the coastal marine area is discussed separately (on page 20). This section emphasises the difficulties foreseen by some of the Court of Appeal judges as to how the rights may be proven, but nonetheless recognises that exclusive rights could be found as a result of a Maori Land Court investigation. If exclusive rights are found to exist the booklet rules out that such rights would amount to exclusive title, instead it blandly suggests that Iwi/hapu should trust the Government:

“In some circumstances those steps might include special arrangements to alert the general public to the need to respect the customary interest in a place. It is hard to determine what future action would be needed in the abstract. Often, with a little lateral thinking, there are concrete and practical arrangements which can be made to acknowledge a customary interest in a way which is meaningful and relevant. For current purposes, all that can be made clear is that the government would acknowledge the customary interest -- but it would not do so by enabling the grant of private title."

The Government is suggesting to Iwi/hapu that it can be trusted to come up with a satisfactory mechanism for the sole recognition and protection of customary interests. However no such mechanism is presently suggested and in exchange for the removal of the current mechanism contained in Te Ture Whenua Maori the Government hint at a test that will restrict the ability of Iwi/hapu to establish what their rights are.

Principle of Regulation

As with the principle of access there is no discussion of customary rights in the discussion on the principle of regulation. The major focus of the discussion are international law concepts and the Government’s ability to regulate different parts of the coastal marine area out to the edge of the Exclusive Economic Zone. The way that the Government sees its role is summed up on page 24 as being” to balance competing interests and demands, and make decisions on how those demands are best brought together in the overall public good ".

The implication must be that customary rights simply form part of the “competing interests and demands". This belittles the Treaty relationship and the duty of care placed on the Government when dealing with customary rights. In the discussion on the principle of regulation there is no suggestion whatsoever that Iwi/hapu have any role to play in the regulation of the coastal marine area.

Principle of Protection

This subsection commences with an incorrect definition of customary rights. The booklet wrongly defines customary rights on page 25 as being”…the way in which New Zealand law recognises and protects Maori customary interests in and attachment to particular places and activities". The protection mechanisms for customary rights should not be confused with the customary rights themselves.

The subsection continues by listing a number of statutes which purport (in the Government's view) to recognise and protect “… various strands of interests". The statutes identified include the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992, the Resource Management Act 1991 and Treaty of Waitangi settlements. Te Ture Whenua Maori, currently the only statute which permits direct recognition of customary rights, is pointedly ignored. However in some cases simply because these strands may have been recognised does not extinguish the customary rights themselves.

While there is a minor concession that Maori have expressed concerns with the effectiveness of some of these mechanisms the subsection goes on to say that “…the Government is aware of the concerns and continues to work to address them in appropriate contexts”. There is no mention of the many instances where defects in the legislative regime prejudicial to Maori have been identified but not addressed by the Government. These defects include the Waitangi Tribunal’s findings in 1993 that section 8 of the Resource Management Act was fatally flawed and the many issues identified with the Local Government Bill, which were not rectified, and if anything were made worse, by the enactment of the Local Government Act 2002.

Instead the Government has identified a further basic principle that “…processes should be established to enable the customary interests of whanau, hapu and iwi in the foreshore and seabed to be acknowledged, and specific rights to be identified and protected”. To implement this principle the Crown has identified two options.

OPTION ONE

Option one builds on existing legislation and systems, for the general recognition of protection of customary interests. It should be noted that in terms of this option there is no suggestion of giving Iwi/hapu any substantive decision-making powers. The Government does suggest that under option one and the work of reviewing and refining the existing systems “would continue, but with a renewed and systematic focus". This is not the Government's preferred option:

“It would be misleading to suggest that this work would deliver immediate solutions for the current issues surrounding foreshore and seabed. Building capacity on all sides to integrate Maori perspectives into decision-making is a long-term task.”

The Government’s preferred option is to design a “new and dedicated system” to record and protect customary rights in the foreshore and seabed (option two).

OPTION TWO

The only concrete proposal that the Government makes in relation to option two is that if there is a dedicated jurisdiction to investigate and record Maori customary interests, the Maori Land Court is the logical place for it, and the Maori Land Court would become the only Court with jurisdiction to investigate customary rights. There is clearly some irony in the Government’s vote of confidence for this Court on this issue given its earlier objections to the jurisdiction of the Maori Land Court.

The detail of the new jurisdiction has only been identified as a series of questions (page 29). There is no detail as to how rights may be determined, no detail as to the process that may be used, and no detail as to the legal tests which may be applied, although the booklet hints at an Australian type approach.

There is also no detail as to what rights may be recognised or how they might be enforced. The Government appears however to have taken a firm position on this as there is a separate discussion on page 30 which sets out” some general points [which] would need to be made clear”. Those general points state that:

- customary rights are able to be awarded to whanau, hapu or iwi,
- must be exercised collectively, and
- are not able to be alienated or otherwise used for commercial purposes or in any way used for pecuniary gain or trade.

All three limitations prejudge the nature and extent of the customary right. Who is able to exercise a customary right in any given situation will depend on the particular rights involved. For example the prohibition on alienation of customary rights fails to make any allowance for customary transfer of rights which is ironic given Government MP John Tamihere’s own Iwi, Ngati Porou ki Harataunga are only able to exercise customary rights at Harataunga because such rights were transferred according to custom.

Likewise the exclusion of any commercial right simply ignores any customary right to trade that may be proven as well as the concept of development rights which have long been recognised as a key component of customary rights, and were a central part of the 1992 Fisheries Settlement. It also directly ignores the findings of the Waitangi Tribunal in the Ahu Moana report which held that Maori have an customary interest in aquaculture and marine farming as part of the customary rights in the coastal marine area. Far from recognising that customary rights would give a priority to commercial activities the booklet states:

“The general laws on resource consents, permits, health and safety regulation and employment law, for example, would all apply to the business activity in the normal way".

The Government therefore intends that the existence of customary rights will not give Iwi/hapu priority for any commercial venture or development in the coastal marine area over and above the public generally.

The best that can be said about the Government’s option one and option two is that in broad terms both options were identified by Iwi/hapu sometime ago. Unfortunately the Government has shown a real unwillingness to talk with Iwi/hapu and Te Ope Mana a Tai on these issues. The detail, such as it is, is totally inconsistent with the ability of Iwi/hapu to seek recognition of customary rights according to our tikanga. The Government’s proposal should be contrasted with those set out in the Discussion Framework prepared by Te Ope Mana a Tai.

Principle of Certainty

The final principle shows that the Government is prepared to put the property rights of others ahead of the property rights of Iwi/hapu. Nothing in the discussion on the principle of certainty in any way recognises or protects the customary rights of Iwi/hapu.

Instead the government proposes that third parties with existing legal rights in the foreshore and seabed would not be affected by claims to the Maori Land Court, while central and local government are to continue to administer the coastal marine area pursuant to their current obligations. In other words the Government does not propose to implement any form of interim relief in favour of Iwi/hapu but acknowledges the consistent problems that Iwi/hapu have encountered with all legislation which concerns the coastal marine area. Other sections of New Zealand can assert rights to the foreshore and seabed and those administering regulatory provisions in the coastal marine area are not required to show any accountability to Iwi/hapu.

In short, for all other parties it will be business as usual whereas Iwi/hapu will be no closer to being able to rely upon our customary rights.

Conclusion and Summary of Questions/Providing Feedback

Parts three and four of the booklet simply sum up the position advanced throughout the booklet, summarise the questions asked in the course of the booklet, and set out the process for providing comment on the matters set out.

Feedback can be provided in writing, online or by e-mail. A feedback form containing the questions is annexed to the booklet. Feedback must be received by Friday 3 October 2003.

Te Ope Mana a Tai categorically reject the timeframe within which the Government is seeking to resolve this complex and important issue and are able to come and discuss our summary of the Crowns proposal and our discussion document. Our discussion document can be found on www.tokm.co.nz.

ENDS

© Scoop Media