Fasting for the Foreshore By Betsan Martin 20 June, 2004
Introduction. Governance of the Foreshore sweeps onto our horizon
Fasting for the Foreshore comes from shock at the impending confiscation of the Foreshore and Seabed. The extinguishment
of customary titles will be judged by our children and their grandchildren with the same horror as the legal processes
of confiscation of the 19th century. This Pakeha fast is to alert New Zealanders generally, recognizing that Government
will go no further than the general opinion of voters. Fasting is a lament for the foreshore confiscation.
New Zealand has the opportunity to bear the fruit of Te Tiriti o Waitangi and create relationships with tangata whenua
that ensure continued customary governance. This includes supporting kaitiakitanga as a culturally-integrated method of
responsibility for people and the environment. It is possible to envisage indigenous governance, tino rangatiratanga,
being implemented alongside governance from the western liberal tradition. These provisions come from Te Tiriti o
Waitangi which provided for peoples of 2 world views to share Aotearoa respectfully by instituting systems that gave
effect to these agreements.
The liberal system has the capacity for adaptation. Indivisible sovereignty was an adaptation. Nowadays the crisis of
the degenerated natural world is making space for environmental science and ecological knowledge, with the beginnings of
remedial policy provisions. Sustainable governance and resource use have always been intrinsic to indigenous societies.
Co-governance. An interplay of two systems A version of sovereignty as indivisible has been constantly invoked to quell
legal and political space for tino rangatiratanga, and for a Tiriti based constitution. Sovereignty can be divided, as
shown in Canada and the United States, and as legally argued by Justices Sian Elias and E. W. Thomas.
Co-governance may sound straightforward philosophically; in practice it will need further careful, even laborious legal
argument. The concept implies parity, but is not to be reduced to ‘equality’. Tino Rangatiratanga and kawanantanga are
different, and distinct. Each expresses integrity with their traditions for governing responsibilities. Tino
Rangatiratanga emanates from locally based indigenous societies to regulate and uphold law, and sovereign governance is
a centralized order derived from the liberal tradition and evolved absolute sovereign authority, established in New
Zealand as indivisible. Upholding the two is not a contradictory proposal, rather it brings the requirement to find
systems that span the two.
The challenge of co-governance would be to institute structures which express the governing responsibilities of each
party. A Treaty based upper house is one such proposal; A Treaty constituted supreme court is another. Policy would flow
from institutional innovation and need to be sustained with a flood of public education, and inspired methods of
mediation for inter-course. The structures, like those of a two-hulled waka, requiring strength and flexibility to
endure and to adjust to changing seas. New proposals would surely emerge in such an environment.
Reference to our current realities tells us that there are overlaps between the ‘two worlds’ that make these
distinctions too simplistic. Maori participation in all levels of kawanantanga institutions is more the order of the
day, with notions of rangatiratanga less in public view, and being sustained in te ao Maori, Maori world views.
The tidal rhythms will ensure an ever evolving discourse on governance, as experienced with the huge hikoi wave crashed
onto the shore of parliament. Governance of sea and land are the order of the day, and cannot be isolated from control
of resources and international positioning and trade, as consistently made clear by Jane Kelsey, Annette Sykes and
others. As we know from the prosperity of nga iwi Maori pre 1860’s, economic enterprise is set to be enhanced by prizing
open sovereignty and reconceptualizing governance.
Te Tiriti, assimilation, diversity Growing roots and allowing the sap to rise to attain our full height keeps being
prevented by ring-barking. The imagination of Pakeha and New Zealanders who have come as later settlers has been
hamstrung by policies of assimilation and the constrictions of a mono-cultural world-view. Now, there is popular evasion
of Te Tiriti or ‘two peoples’ principle as a basis for nationhood with the increasingly diverse population and our
willingness to find ways to be hospitable to people who are coming here from different places. Diversity is about
enabling diverse peoples to fit in to the prevailing ways of life. If you dig deeper, it positions ‘Maori’ with
immigrant communities, flying in the face of the now internationally recognized status of indigenous people. Te
Tiriti-based diversity, with immigration policies flowing from co-governance arrangements would correspond to the
hospitality in indigenous and liberal traditions.
Legislation has been a means of confiscation since 1863. Pakeha Treaty educators refer to this history to bring an
historical appreciation of Maori advocacy for Te Tiriti and a sense that the present has evolved from the foundations
laid last century – a Foucauldian ‘history of the present’. In our wildest dreams, it has never been considered that
this history could be repeated. The Waitangi Tribunal seemed a symbol of a turn towards respect for Te Tiriti
agreements. The tribunal has reported that the government Foreshore and Seabed proposals are in breach of the Treaty,
yet the bill has proceeded into Parliament
Foreshores and Seabed From the beginning of the Foreshore and Seabed proposals I have been arrested by themes that are
being replayed to appease the ‘later settler’ majority – themes that are recognizable since the inception of the 1835
Declaration of Independence. Majoritarian ideology of government became more insistent since 1858, when the settler
population outnumbered that of the tangata whenua, and was asserted through ideas such as policy in ‘the interests of
all New Zealanders’, one law for all, representative and then democratic rule.
Underlying these themes the assumption of Sovereignty being ceded to the Crown has been a central interpretation of the
Treaty of Waitangi. A theme that resurfaced recently was the difficulty of negotiating with ‘Maori’ because there is no
central ‘body’ that represents them – an echo of the ideology of ‘one’ sovereign as the legitimate representative of a
group of people. And so we saw consultation hui prescribed by government agenda and time frames to conform to the
requirement to ‘consult’ with tangata whenua. It was a farce, in that no notice has been taken of the overwhelming
collective voice of those who were consulted.
The need to clarify territorial, or radical title could be put up for resolution between the crown and hapu, the
customary title holders. Even joint ownership may be regarded as compromising tino rangatiratanga (as well as
compromising indivisible sovereignty). Provision for an ethical solution will take longer than one political year. We
have seen generosity prevail where the mana of rangatiratanga is upheld, such as at Lake Taupo and Orakei.
Public access to the foreshore and any other recreational environment is the issue that rallies an outcry from all New
Zealanders who feel as risk of being shut out. But this is not a recent concern brought about for the Foreshore.
Public access was used to assert the ‘interests of all New Zealanders’ in Lake Taupo – a strategy through which the
Taupo lake bed was transferred to the Crown against the wishes of Tuwharetoa in 1926. After 56 years of appeal, titles
to the lakebed and river-beds were restored to Tuwharetoa. When you read the historical material, Crown ownership is
really about control of resources – in this case the recreational resources attached to trout fishing. Public access has
been beneficial to all NZers under the joint management arrangement. The challenge now is for a re-alignment to be found
from the council side, to move from commercial interests to environmental responsibility, to catch up with the kaitiaki
model of management.
Foreshore and Seabed bill This week of fasting brings the opportunity to re-examine articles on the Foreshore and
Seabed, and the bill before parliament. To comment on a few:
The vesting of the Foreshore and Seabed in the crown violates customary entitlements safeguarded under the doctrine of
aboriginal title in common law. In legal discourse, even Crown sovereignty is ‘burdened’ by obligations to uphold
customary titles. These can only be extinguished by an Act of parliament with the agreement of the customary owners.
It is abhorrent that customary orders and ancestral connection are o be nominated by the Maori Land Court. Here
customary practice is being over-ridden and replaced by court defined entitlements, fracturing the integrated, wholistic
economic, social and spiritual basis of hapu societies. If any court process is required in respect of customary orders
it should be as an onus on the Crown to prove its acquisition of titles with documentary evidence.
The provision of the high court to recognize customary or aboriginal rights/titles that are now extinguished, is the
most unethical treatment of customary entitlements that signal disdain for indigenous law and disregard for the cultural
integrity of hapu.
It is implied that the replacement of iwi authorities by ‘holders of ancestral connection orders’ in the Resource
Manangement Act introduces a diminished status that was accorded to Iwi Management Plans in the RMA.
Over all the Foreshore and Seabed bill heralds a litigious, adversarial future for tangata whenua and government, adding
to the already entrenched burden of litigation upon tribes for settlement of grievances. These violations suppress the
openings to evolving a vibrant Aotearoa-NZ possible from an interplay between our different traditions, and premised on
en ethics of manawhenuatanga.
All these terms, such as ownership, exclusive titles, customary orders, ancestral connection are terms that are alien to
the ancestral law of tangata whenua. They belie the pre-eminent values of property and freedom that derive from the
liberal tradition, rendering obsolete the relational values and custodial responsibilities of kaitiakitanga,
manaakitanga, whakakpapa, tikanga, rangatiratanga, mana… as elaborated by Eddie Durie and others.
An elucidation on rangatiratanga from E. Durie: ‘ political power was vested in the basic community or hapu level. Power
flowed from the people up and not from the top down. Control from a centralized or super-ordinate authority was
antithetical to the Maori system. It is probably an understatement to say that Maori did not develop a central political
agency, and more correct to assert that Maori ethic was averse to it. Where Europeans saw progress in the aggregation of
principalities to form nation states, and the world followed suit, for the indigenous societies of Australasia and the
Americas, local autonomy was more prized. …Tribal societies do not see themselves as an undeveloped embryo but as
maintaining a way of life independent of the state as a matter of positive policy’.
Conclusion Some of our eminent writers such as Judge Eddie Durie and Dame Anne Salmond are showing the way to a future
where the worlds of Tikanga Maori and of the liberal tradition can meet in a spirit of generosity and eminent respect
for the legacies of these traditions, as a basis for accommodating a new world in the Pacific, which traditionally has
been hospitable to diverse populations.
Let the Foreshore bill be withdrawn. Let a new future be inaugurated which evolves from an ethic of upholding the wisdom
of those who are indigenous to the Pacific, with honour given to the liberal traditions informing later settler
institutions, and conditions created for shared responsibility for governance.
ENDS