Submission on the Review of the ‘Foreshore and Seabed Act 2004

Posted By TEU on Apr 30, 2010 |


Submission of the Tertiary Education Union (TEU) Te Hautū Kahurangi o Aotearoa to the Ministry of Justice

on the Review of the ‘Foreshore and Seabed Act 2004’

30th April 2010

For further information please contact:

Jo Scott Lee Cooper
Policy Analyst Te Pou Tuarā
Tertiary Education Union Tertiary Education Union
Te Hautū Kahurangi o Aotearoa Te Hautū Kahurangi o Aotearoa

Review of the ‘Foreshore and Seabed Act 2004’

He taonga tuku iho

A gift bequeathed

Haere mai e moko, he kōrero tāku Come moko, I have something to tell you
mo te Tiriti o Waitangi 1840 it is about the Tiriti o Waitangi 1840
He taonga whakahono it is a gift of partnership
mai te Kuini o Ingarangi from the Queen of England
Ki te mouri tangata whenua to the sovereign people of this land
o Aotearoa. of Aotearoa.
E toru ngā tikanga kei te taonga nei There are three principles in this gift
Tino Rangatiratanga ki tangata whenua! Sovereignty to the people of this land!
Kāwanatanga – ki te iwi manene! Governance –  to the settlers!
Whakahononga –  ki ngā iwi e rua! Partnership – to the two peoples!
Kia mōhio e moko Remember, moko
ma koutou, mā ngā mokopuna it will be you, the grandchildren
e whakatutuki tēnei kaupapa nui who will complete this important task
ā muri ake nei… in time to come, with…
Kia tika!  Kia pono!  Kia mārama Honesty!  Commitment!  Enlightenment!
Me ngā hau pai mārire. And the whispering winds of peace.

Nā Te Huirangi Waikerepuru, 30th April 2010

Introduction

The New Zealand Tertiary Education Union (TEU) Te Hautū Kahurangi o Aotearoa is the largest tertiary sector union in this country.  Our membership currently sits at approximately 11,000 full-time equivalent members, covering all types of tertiary education institutions in the sector.

As a union and professional association, our organisation has a commitment to justice, equity and fairness.  This commitment is reflected in our organisational structure as well as our endeavours to work within a treaty partnership mind-set.

In 2004, we voiced our strong opposition to the proposed Foreshore and Seabed Bill, on the basis that if implemented it would violate the human rights of Māori as citizens and as indigenous people.  Additionally we viewed the proposed Bill as directly contradicting the commitments contained within the Articles of Te Tiriti o Waitangi, and that if implemented, would allow the Crown to reject its responsibilities as a treaty partner:

“Māori have never relinquished tino rangatiratanga over the foreshore and seabed.  For the Crown to propose a process that requires iwi and hapū to submit to yet another Crown-determined procedure to attempt to prove this makes a mockery of Article 2 of Te Tiriti o Waitangi.  Further the Crown does not have the right to require its Treaty partner (tāngata whenua) to participate in a process that will be foisted upon them without adequate consultation, and without recognition of their status as the indigenous people of this country.  This is not the action of a partner operating within an equitable partnership.  It is an act of dominance and demonstrates a startling lack of understanding regarding the duties and responsibilities of partnership under Te Tiriti o Waitangi.”  Association of Staff in Tertiary Education, 2004.  “Submission to the Fisheries and Other Sea-related Legislation Select Committee on the Foreshore and Seabed Bill July 2004. pg 4

We therefore welcomed the Ministerial Review Panel of the 2004 Act and its recommendations.  Equally we take heart from the government’s willingness to engage with iwi and hapū over this issue, and to ensure that consultation occurs broadly throughout the community.  For example, we are pleased to note commitments in the Consultation Document to consider repealing the 2004 Act, to restoring rights the Act removed, and to honouring agreements reached after the Act was legislated.

This optimism however, is tempered by caution.  Whilst the Consultation Document provides an attempt to address the injustices that the 2004 Act have created, any potential solution is hampered by a lack of clarity on the part of the Crown regarding the nature of the treaty partnership relationship, and the partners’ respective roles and responsibilities.  Tino rangatiratanga gives the Crown the ability to take on the responsibilities of kāwanatanga/governance.  This does not however mean that the rights and responsibilities conferred with kāwanatanga supersede tino rangatiratanga.  Any decisions reached on the foreshore and seabed must be as a result of a full and frank dialogue between the Crown (in its kāwanatanga role) and iwi/hapū (who represent tino rangatiratanga), and must be a mutually agreed solution.  Anything less than this risks a return to the turmoil of the days leading up to the commencment of the Foreshore and Seabed Act in 2004, as well as potentially causing irreparable damage to the Crown’s kāwanatanga relationship with iwi/hapū.

Additionally key proposals in the Consultation Document are based on the flawed premise that the Westminster legal system takes precedence over tikanga Māori.  This is particularly apparent in the definitions applying to iwi and hapū customary rights and title, especially when these are evaluated against the private property rights of any other citizen or landowner.  Indeed when this definition is considered alongside current private property rights in regards to the foreshore and seabed, it also falls into the realm of a violation of Article 3 of Te Tiriti o Waitangi.

We therefore do not believe that the government’s new proposal provides a just and fair solution, as it is based on much the same premises as the 2004 Act.  Therefore we have chosen not to respond to most of the questions contained in the Consultation Document.  Our reason for this approach is that we believe that unless the flawed philosophical and political assumptions contained in the Consultation Document are addressed, engaging in detailed discussion about legislative changes is futile, and will not provide the kind of framework that iwi and hapū have described as necessary for resolution at hui attended by iwi/hapū and members of the Iwi Leaders Group:

“Mana – that iwi and hapū have inherited mana and obligations to act as kaitiaki of their rohe moana, and that this customary authority should be respected and provided for as pre-existing the assertion of Crown sovereignty, and enduring today with the following elements…toitū te mana Atua, toitū te mana whenua, mana moana, toitū te mana tāngata, toitū te mana Tiriti;

Tikanga – that mana and the authorities and obligations that go with mana, should only be understood and defined as according to tikanga…and that tikanga should be given effect as law;

Tiriti/Whakapūtanga – that the Treaty partnership between the Crown and iwi/hapū must be provided for in a meaningful way that provides the respective authorities and responsibilities of each partner, and that the authorities confirmed in Te Whakaputanga must be respected and provided for.”  Iwi Leaders Group, 2009.  “Takutai moana, mai rā ānō, mō ake tonu – commentary on the Crown Consultation Document” pg 6.

The next part of our submission therefore considers these issues:

  1. customary title and use;
  2. public domain/takiwā iwi whānui; and
  3. public access to the foreshore and seabed.

The final section of our submission considers the alternative model submitted by Ngāti Kahungunu – ‘tīpuna title’ – and their proposal for a way forward to resolving this and other issues that arise between the treaty partners.

Customary title and use

The flawed approach to resolving the issue of the foreshore and seabed is no better illustrated than in the Consultation Document’s explanation of Māori customary title and use.  One of the major reasons for opposition to the 2004 Act was that it legislated a different (subordinate) set of regulations for Māori customary title to that afforded to anyone else.  The new proposal outlined by the Crown perpetuates this unjust distinction – once again Māori customary title has a myriad of constraints and limitations placed upon it, in contrast to ordinary freehold title, which is able amongst other things, to restrict or refuse public access.  Additionally, while the Crown purports that the new approach ‘public domain/takiwā iwi whānui provides iwi/hapū with right of veto and other rights, the Crown still retains full powers of regulation and determination of the extent of these rights.  The ‘new approach’ to customary title and use in practical application differs little to that outlined in the current Act.

Furthermore, the tests to establish customary title requires iwi and hapū to ‘prove’ their continuous and uninterrupted occupancy of the land in question since 1840, and that the Crown has not extinguished title.  Iwi and hapū cannot and have not extinguished title – tikanga and whakapapa do not allow this.

What is wrong with the concept of public domain/takiwā iwi whānui?

‘Public domain’ as a concept is derived from the notion of terra nullius or the ‘empty land’, a construct used by colonising nations to justify according themselves sovereignty of lands occupied by indigenous people.  In the context of this proposal, the notion of ‘public domain’ creates a fiction that no-one ‘owns’ it.  This is contrary to tikanga – under tikanga unless the whenua belongs to someone, that person cannot be tāngata whenua.  An individual obtains their rights to ‘belong’ to particular places through tikanga and by virtue of whakapapa – and whakapapa cannot be extinguished, either by legislation or by any other actions that a government might wish to invoke.  These whakapapa links also imply a responsibility – to protect and preserve the environment and resources for future generations.  The ‘public domain/takiwā iwi whānui’ proposal effectively disregards this relationship.

In discussing customary title from the perspective of the Westminster legal system and definitions, the Crown inherits the ideology of a constitutional structure that still largely derives from a world-view that produced concepts such as terra nullius.  This concept presupposes that land deemed ‘empty’ – that is, uncultivated – should be regarded as un-owned, leaving it free for the colonising nation (or today, the Crown) to exert their ownership.  To suggest therefore that the most ‘elegant’ solution to the issue of the foreshore and seabed is to declare it ‘un-owned’, and convert it’s status to public domain/takiwā iwi whānui, and then provide the Crown with powers of regulation, falls short of a just and fair solution to the foreshore and seabed situation.

Access

The TEU is supportive of the principle of access being translated into legislated access rights on the basis that it applies to all foreshore and seabed, that is including areas that are currently in private ownership.  There are situations where public access limitations would be justified, including wāhi tapu, rāhui and urupa, for public health and safety reasons, and where environmental degradation as the result of pollution has occurred.  Of course iwi and hapū have never argued this point; rather they have been clear that access to the public would always be assured – this stance is consistent with tikanga and kaitiakitanga.  It is a pity that the Crown has not acknowledged this in its Consultation Document.

An alternative solution to the Crown’s proposal

The TEU supports the repeal of the Foreshore and Seabed Act 2004, and the reinstatement of the option for iwi/hapū to apply to the court for rulings on customary title, as an interim measure towards resolving this issue.

Additionally we support option 3 in the Consultation Document (Māori absolute title), however we favour the approach outlined in the Ngāti Kahungunu proposal of ‘tīpuna title’[1] as being a more appropriate way to express this model.  The model itself is not a new one; a similar concept has been used with regard to customary fishing allocation, and we are confident that it could be applied to the foreshore and seabed.  The key principle is that such a model recognises the mana whenua that each hapū has over their rohe, and the ancestral links that secure their relationship to the whenua.

Finally we support the position articulated by the Waitangi Tribunal in 2004, and reinforced by subsequent statements from the Ministerial Review Panel, Ngāti Kahungunu and others that time be allocated for a “longer conversation” to fully resolve the issue of the foreshore and seabed.

Summary

As the Iwi Leaders Group noted, it is important to remember:

“…that the reason Te Tau Ihu went to court in the first place was because of poor management of the marine environment.  Their quest for customary title was intended to create more leverage for customary authority (including development rights) to be expressed and exercised by Te Tau Ihu over their rohe moana…”  “Takutai moana, mai rā ānō, mō ake tonu – commentary on the Crown Consultation Document” pg 6.

Iwi and hapū are inextricably connected to the whenua and to its care and protection, whether it be coastal lands or the hills, plains and mountains of the interior of our islands.  Whakapapa provides the right to claim mana whenua, but also brings with it a responsibility to care for the whenua “Mō tātou, ā, mō kā uri ā muri ake nei – for us and our children after us.”[2] Through restoration of unjustly removed rights, and with a considered and respectful process of discussion and negotiation, the TEU believes that the Crown and iwi/hapū can reach agreement on the foreshore and seabed in a way that preserves the tino rangatiratanga of iwi/hapū, ensures protection of the whenua and enables all citizens and visitors to enjoy continued access to this part of Aotearoa.

Bibliography

Association of Staff in Tertiary Education, 2004.  “Submission to the Fisheries and Other Sea-related Legislation Select Committee on the Foreshore and Seabed Bill July 2004.

Iwi Leaders Group, 2010.  “Takutai moana mai rā ānō, mō ake tonu: commentary on the Crown Consultation Document”

Jackson, M, 2010.  “Tīpuna title as a tikanga construct re the foreshore and seabed”

Acknowledgements

To Moana Jackson, for his kōrero about tīpuna title and Ngāti Kahungunu’s proposal for addressing the foreshore and seabed issue.

To Te Huirangi Waikerepuru for his clarification of the relationship between tino rangatiratanga and kāwanatanga.


[1] “Tipuna title may be described as the physical and spiritual interests that collectively vested in iwi or hapū as part of their mana or rangatiratanga in regard to the whenua.  It is a title that exists within what may be termed “relational interests”, that is the interests that inhered in the relationships of a particular whakapapa and the willingness of our people to develop existing or potential relationships with others.

It is an absolute title in the sense that rangatiratanga and whakapapa create inalienable ties to the land.  Being tangata whenua implies having whenua to be tangata upon, and “tipuna title” presupposes a continuing authority in relation to it.

It may in fact be construed as a unique Māori construct of ownership because it implies a collective exclusivity.  In that collective context a mokopuna was born into the collective title through his or her whakapapa.  It depends upon the fact of birth and the presumed permanence of whakapapa.”  Jackson, M. 2010 “Tīpuna title as a tikanga construct re the foreshore and seabed”

[2] He whakataukī ā Kai Tahu

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