Submission - David James

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A Submission on 'Government Proposals for Consultation: The Foreshore and Seabed of New Zealand' from David James.

Note: this submission is in three parts - firstly, the answers to some of the feedback form questions; secondly, some general comments; and thirdly, some supplementary information.

Answers to some of the feedback form questions

1) Do the four principles cover the appropriate concepts, and provide a basis for legislation on the foreshore and seabed?

"Access" and "protection" are fine, and indeed compass the whole set of needs around the issue. "Regulation", as defined, doesn't allow for partnership with hapu and iwi over these matters, and therefore negates the "recognition of their mana over an area" which is also promised. This may be done for the sake of "certainty", but that certainty is illusory, since it can be altered at any time by this or a future government through Parliament. The present government helped the Wanganui District Council and the iwi out of an impasse over Pakaitore/Moutoa Gardens based on the same District Council requirements for regulation and certainty, but has fallen into the same trap itself over the present issue.

2) Should they be adjusted or amended in any way? Why?

Either scrap "regulation" and "certainty", or add to the definition of regulation "The Crown is responsible in partnership with hapu and iwi ..."

3) Are there other principles that could be useful? How might they assist?

6) Option 2: Do you consider it appropriate for the government to set in train a process to identify private interests that restrict public access, to decide if there would be public benefit in obtaining access, and to negotiate with the owners on ways to improve public access and use? Why? Why not?

I support Option 2. A general right of access is too broad and could conflict with privacy and private land use. Access over private land should be in defined and negotiated places, the equivalent of English footpaths. Above all, access over Maori freehold land should be on the same negotiated basis as access over other forms of land-holding.

8) Do you have any practical examples of Maori customary interests in the foreshore and seabed that are still in practice, and have been since 1840, and are not already covered by legislation? (Note that customary fishing, including the taking of shellfish, is already provided for in legislation)

It's for the hapu and iwi to define their customary rights and interests, and crown agencies only need be involved when those rights conflict with the rights and interests of others. In such situations the rights and interests of the hapu/iwi should only be limited by agreement if possible, and in any case to the minimum extent possible and with generous compensation. (See Waitangi Tribunal's Petroleum Report, 5.11)

The repeated assertion that customary rights must have been continuously exercised since 1840 puzzles me, in the light of the finding by Lord Denning in New Windsor Corpn. v. Mellor, 1975, "So the case comes within the rule that a customary right is not lost by abandonment or disuse" (quoted in Alex Frame, Grey and Iwikau, VUP 2002).

11) Should a new system be based in the Maori Land Court? If not, where should it be based?

The problem with the Maori Land Court seems to be that it has to deal in the artificial status of "Maori freehold title", a form of holding devised by a previous government specifically to make alienation possible. Since it is clear that hapu and iwi do not wish to be able to alienate their rights in the seabed and foreshore, a legislative change to recognize a different kind of title that makes alienation impossible (eg tupuna title) would seem appropriate. With that done, the Land Court could be an appropriate forum.

13) Do you agree that customary rights should be able to be held by whanau, hapu and iwi?

Absolutely. These are collective Article 2 rights under the Treaty, to be balanced against the Article 3 rights of all individual citizens including non-tribal Maori, members of hapu and iwi in the territories of others, and non-Maori.

16) Are there any other approaches that should be considered for enabling Maori customary interests to be acknowledged?

See response to question 11 above. While such a title should not permit alienation, it should certainly recognize development rights such as a stake in aquaculture development, along with the right to co-management status with the Crown and local government in respect of coastal policy, resource management etc.

General comments

In the Maori world as I understand it, everything depends on relationships and their quality, both whakapapa relationships and relationships with friends and allies. The settlement process has to some extent recognized that in its apologies, but what will ensure that settlements are final will be the quality of future relationships. Hence the challenge from the Ngai Tahu hui about the way the government has behaved over this issue and how it casts doubt on the sincerity of the apology to Ngai Tahu.

Everything about the process must increase that doubt and renew distrust. The immediate statement that the government would legislate to ensure Crown ownership, the insistence on having a prepared Crown position before consultation, the brief time for consultation, the lack of clarity about any genuine negotiation from here on, all of it seems to say that no matter what party is in office, governments will continue to behave as they have at least since 1852 when the Crown was captured by Pakeha interests and abandoned its impartial role of "friend, father, judge and peacemaker" (Tamati Waka Nene at Waitangi, 1840.)

In terms of conflict management, the last thing to do is to approach another party with a prepared set of solutions, and even some of the Crown's principles are solutions. Better to invite each party to set out their baseline needs and interests, and then on that basis to negotiate for a solution that meets as many of those as possible. That is the reality behind the fashionable talk of win-win solutions. Anything else is guaranteed to intensify conflict.

The most disappointing feature is that in its original ministerial statements, the government bought into the public fear and distrust of Maori, the false image of them as people who are out for everything they can take from others, who must be kept in line by firm legislation. It would not have been impossible instead to have said something like "We don't think there is a real threat to the customary right of all New Zealanders to enjoy the beaches and sea. If such a threat does emerge we will certainly deal with it. Anyone who tries to exploit this for political advantage is being dishonest and divisive. Now let's all have a cup of tea and a lie-down."

I attach a sheet, [*] used in my courses (see below), of selected quotations from the Waitangi Tribunal's Whanganui River Report, which seem entirely pertinent to the present issues.

David James
29 September 2003

[*] David works is part of The Rowan Partnership who are engaged in Treaty issues education with local government etc, conflict management and mediation.

Maori Property Rights (Quotations from The Whanganui River Report, Waitangi Tribunal 1999)

The Legal Position

Tribal ownership rights are based both on the Treaty and on English law, which applied in New Zealand from 14 January 1840.

The legal recognition of the prior property interests of indigenous peoples (or "native title") was a long-standing principle of European and English law. This principle was recognised by the Supreme Court in New Zealand as early as 1847.

It is a principle of English law that native title is to be rendered conceptually in its own terms, and not in terms of systems that have grown up in England.

It does not matter that Maori did not think in terms of ownership in the same way as Europeans. What they possessed is equated with ownership for the purposes of English or New Zealand law. It does not matter that they thought in terms of territory rather than property. What they possessed, is deemed to be a property interest for the purposes of law, and it has been treated that way by the courts.

The Treaty Basis

In affirming Maori property rights, the Treaty added no more to established law than that the full, exclusive and undisturbed possession of traditional properties was guaranteed Maori for so long as they wished to retain them (English text). The Maori text uses the more compendious term "taonga", and so guarantees to Maori all those things that they treasured.

It was not put to Maori that what they might lawfully possess was what they might own in terms of English law. In any event, Maori did not know of English law at the time.

In the Maori text of the Treaty rangatiratanga, or authority, was guaranteed. The "full exclusive and undisturbed" possession of properties connotes all rights of authority, management, and control.

The principle is that the lawful interests of all people, Maori included and not just those from England, are respected under the Queen's law according to what those interests are in fact, and the manner in which they were derived. The principle as applied to Maori is set out clearly in the Treaty of Waitangi, on which the modern State was founded. All persons who were here at that time and those who have since arrived must be taken to have known of it.

We set aside any suggestion that Maori entitlement confers a privilege based on race. It is neither a privilege nor racist that a people should be able to retain what they have possessed. Property rights go to the heart of any just legal system.

The origin of Maori tribal title, unlike that of the general population, is not based on fealty [allegiance] to the Crown, for it predated the Crown. It was a condition precedent to settlement in New Zealand that their properties were guaranteed to Maori by the Crown.

Far from being founded on race or privilege, the Maori right to retain the properties that they possess is founded on universally accepted principles, from the doctrine of native title, as recognised in law, to the Treaty of Waitangi, which contains the promises of the Crown, to the emerging principles of international human rights.

The issue is not only about law, but also about order. Order requires that Maori must respect the law and the property rights of others. But by the same token, the property rights of Maori must be respected as well. They cannot be a ready prey for convenience or public desire.

In Maori tradition, property rights, while important, are not as important as the way in which people relate.

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