Foreshore and Seabed debate in context

Written By: - Date published: 5:15 am, November 9th, 2009 - 50 comments
Categories: foreshore and seabed, treaty settlements - Tags:

Te Tiriti o Waitangi is not well understood by most New Zealanders, including most of the politicians that make up our main political parties. It is due to this lack of understanding, as well as populist politicking by some notable politicians, that there is an underlying resentment in our population regarding any policy which adequately honours the Treaty.

I’ve wanted to post on the foreshore and seabed debate for quite some time, however I think it’s important to first put it in context. The injustices done to Maori by the Foreshore and Seabed Act are only a continuation of the Crown’s contempt for the Treaty since it was signed in 1840. Today’s post is kind of a basic history lesson on just some of the Crown breaches of Te Tiriti. Tomorrow I will post on the foreshore and seabed debate and what I want to see happen next.

While this post is intended to put some context around the foreshore and seabed debate, I hope it also helps convince people that while Hone Harawira’s choice of words may have been inappropriate, there was some merit in the sentiment he expressed.

Article 2 of the Treaty provided Maori ‘full exclusive and undisturbed possession’ of their lands so long as they wished to retain them. Article 2 also gave the Crown pre-emption – the exclusive right to buy Maori land, but only with consent. Unfortunately the Crown have, since its signing, continuously dishonoured both the letter and the spirit of the Treaty.

The Waitangi Tribunal have a great analysis of the Waste Lands debate of the 1840’s, showing that even where the Crown followed the letter of the Treaty, they certainly never honoured its spirit. The Crown made use of the pre-emption clause (the Crown’s exclusive right to buy land) as a political tool to control Maori, refusing to buy land from those who opposed the Government. Further, rather than returning to Maori the land stolen with forged titles by the New Zealand Company, they instead forced Maori to accept token compensation, thereby breaching the right of Maori to only sell their land with consent.

In 1863 the Government passed The New Zealand Settlements Act, which enabled them to raupatu (confiscate), without compensation, land from Maori who were active in or in any way supported those active in rebellion against Her Majesty’s authority. It also allowed them to confiscate land from Maori who refused an order to give up their arms. In 1927 there was a Royal Commission of Inquiry into confiscations under the New Zealand Settlements Act. While the Commission’s recommendations were eventually implemented by the Government, the tribes involved were unhappy with both the scope of the findings, and the amount of compensation.

In 1848, the Ngati Toa tribe made an agreement with the Bishop of New Zealand to set aside some land for educational purposes. In 1850, Governor Grey issued a Crown grant of that land to the Bishop, without the consent of Ngati Toa. When by 1877 no school had been established, Wi Parata, Member of Parliament and a Chief of Ngati Toa, took the case to court to try and recover the land for his tribe. Chief Justice of the Supreme Court, James Prendergast ruled that the Crown grant to the Bishop was an ‘Act of State’ that used the Crown’s sovereign* powers to extinguish native title. Prendergast CJ went further, effectively ruling both the Treaty and the Native Rights Act 1865 invalid:

On the foundation of this colony, the aborigines were found without any kind of civil government, or any settled system of law The Maori tribes were incapable of performing the duties, and therefore assuming the rights, of a civilised community.
…
So far indeed as that instrument [the Treaty] purported to cede sovereignty a matter [with] which we are not here directly concerned it must be regarded as a simple nullity. No body politic existed capable of making cession of sovereignty, nor could the thing itself exist.
…
The [Native Rights] Act speaks further on of the ‘Ancient Custom and Usage of the Maori people’, as if some body of customary law did in reality exist. But a phrase in a statute cannot call what is non-existent into being.

While the Privy Council later recognised that the Treaty was one of cession and not a “simple nullity”, Prendergast CJ’s main ruling, that the Treaty has no legal standing unless incorporated into statute, still stands.

Prendergast’s reasoning was later incorporated into the Native Land Act 1909, expressly giving the Crown power to extinguish Maori title to “customary land”, and later the Maori Affairs Act 1953, allowing non-occupied Maori land to be declared “waste land” and confiscated by the Crown.

Throughout the 20th century, Maori land continued to be confiscated under the Public Works Act. There are also examples where Maori gifted land to the Crown for specific purposes (such as schools), and didn’t have it returned when the original purpose was fulfilled. The New Zealand History Online site has highlighted maps showing Maori land loss between 1860 and 2000.

It must be noted that the amount of compensation awarded in Treaty settlements is only a tiny fraction of the value of what was wrongfully taken from Maori. That Maori are willing to negotiate full and final settlements on this basis negates any claims by the likes of the National party of a ‘treaty gravy train’.

Both Labour and Nationals’ policies** post 2004 to set an end date for lodging historical Treaty grievances pose problems not just for compensating for past actions, but also for ensuring New Zealand history is recorded. In the words of Professor M P K Sorrenson:

So long as the Tribunal retains its retrospective jurisdiction to 1840, it will continue to recover a hitherto largely submerged Maori history of the loss of resources and mana, supposedly protected by the Treaty. The Tribunal’s findings may not be palatable to many New Zealanders, but it would be perilous to ignore them.

Finally, following the 2003 ruling by the Court of Appeal in the Ngati Apa case that Maori had the right to have their claim for title of the foreshore and seabed heard in the Maori Land Court, the Labour Government legislated away that right to have their claim heard. The justification used was that it was necessary to protect New Zealanders’ rights of access to beaches. Tomorrow I will show that no such threat to access existed, and that there were and still are many alternative remedies available.

* Te Tiriti is very clear that while Maori grant the Crown the right to Kawanatanga (Governorship), their rights to Tino Rangatiratanga (Sovereignty) are reaffirmed. But that’s a debate for another day.
** Legislated in the Treaty of Waitangi Amendment Act 2006, from the 1st September 2008 claims to the Waitangi Tribunal can only be made for events occurring after 21st September 1992.

50 comments on “Foreshore and Seabed debate in context ”

  • Comments are now closed

  1. Squirrel 1
    9 November 2009 at 8:31 am

    Awesome post!

    I only hope the rest of the labour movement is as well versed in treaty issues as you 🙂

  2. vto 2
    9 November 2009 at 8:39 am

    “It is due to this lack of understanding, … , that there is an underlying resentment in our population regarding any policy which adequately honours the Treaty.”

    Really Rocky? You sure that is the only reason?

    And where is your evidence for this assumption you make?

    • rocky 2.1
      9 November 2009 at 4:22 pm

      I didn’t say it was the only reason.

      I have no evidence for my “assumption” except to say that it is more than an “assumption”, it is an opinion formed after speaking to many people about the issues, and finding that most people I spoke to have very little understanding of Te Tiriti. Of course I can’t prove that is the cause of resentment in the population, however that too is an opinion formed by speaking to people and finding that those I spoke to who did have a better understanding of Te Tiriti didn’t seem to hold those prejudices.

      Do you have any evidence to prove that the public is well educated on Ti Tiriti, or what other reasons there might be for the resentment within the population as stirred up by Don Brash in 2004?

  3. Matthew Hooton 3
    9 November 2009 at 8:44 am

    This is a very good post. I look forward to your post tomorrow showing that the issue did not represent any real threat to access to the beaches. You may be interested in my NBR column on this from Friday, which built on my comments here last week, and which Busted Blond typed up at http://roarprawn.blogspot.com/2009/11/shakin-tree.html Interestingly, I have received very positive feedback for the column from across the political spectrum, including from Don Brash. What a difference a few years and a few more deep breaths can make on an issue. The heat is gone so there can be a bit more light.

    • the sprout 3.1
      9 November 2009 at 8:46 am

      amazing what breathing through one’s nose can achieve

      • r0b 3.1.1
        9 November 2009 at 12:14 pm

        Amazing what political expediency can achieve (both Iwi Kiwi then, and flip flop now).

        • So Bored 3.1.1.1
          9 November 2009 at 12:44 pm

          Eeekkkkk….Hoots being agreeable (till tomorrow), I feel an ambush coming on.

        • rocky 3.1.1.2
          9 November 2009 at 4:01 pm

          Including Labour’s flip flop on the issue of course.

          • Ron 3.1.1.2.1
            9 November 2009 at 7:00 pm

            I agree, Rocky, that Labour are flipping and flopping.

            As much as I think the F&S Act was a terrible injustice and it lost Labour my vote, it was a response to the incredible beat up that National and then the media and then National did on the issue.

            It was National that started the “our access to the beaches is in jeopardy” refrain and the public response – driven by some of the most uniformed reporting we have ever seen in this country. Every time someone tried to explain the real issues they got shouted down and I think Labour was left with no (political) choice. I would have preferred they acted on principle but it would have lost them the election.

            Now that the rednecks’ favourite smiley face is talking about repeal it’s safe for Labour to come out, that’s all.
            Capcha = adjust

  4. Pascal's bookie 4
    9 November 2009 at 9:45 am

    “including from Don Brash”

    Care to share? I only ask because I found his ‘apology’ rather self serving. As I read it, he apologised for the policy on the grounds that he now thinks there was a good chance the courts would have ruled his way in any case. He stood by the iwi/kiwi billboards which claimed the FSA gave the beaches to iwi.

    It’s similar to DPF the other day saying much heat could have been avoided if Labour had appealed the initial court case, which again seems to completely get it wrong. Such a course of action would have been just as wrong to Maori, and National would still have had a field day, given how far they painted the FSA as political pandering to the treaty gravy train. It just would have been Labour caving in and handing the fate of Kiwi’s access to sctivist judges etc.

    • Matthew Hooton 4.1
      9 November 2009 at 1:33 pm

      Just that he liked the column and that he now believes that it in denying Maori New Zealanders access to the courts to establish their rights, National and Labour negated the principle of one rule for all.

      I disagree with you that had Margaret Wilson (the losing party in Ngati Apa v AG) appealled to the Privy Council that would have been just as wrong. As the losing party, she had a right to appeal if she disagreed with the decision and Ngati Apa would have accepted that. What was appalling was her immediate declaration that seeing she disagreed with the decision in a case she had just lost, she was going to change the law in her favour. I am sure you are right, though, that National would have gone on and on about activist judges. But that wasn’t really an excuse for Labour taking the course it did.

      • Pascal's bookie 4.1.1
        9 November 2009 at 4:33 pm

        “Just as wrong” I think, in that such an appeal would have been denying the existence of indigenous title. Appealing that decision and winning would have been having the courts rule that Brash’s then policy was correct. Iwi would not have the right to even ask if such ownership existed for any given area. Wouldn’t it?

        Appealing that decision would have better than legislating Brash’s position, and better than the FSA in many respects, but not as good as allowing the next phase of court claims to proceed, or just opening negotiations between the crown and iwi on claims outside the courts.

        I agree that Labour’s actions were appalling, (I was on the parliamentary forecourt when the PM preferred to talk to a sheep), but Im not all as keen to minimise the role National played as you seem to be. National could not legislate that’s true. But politicians operate within the window of political acceptability, and the opposition defines the boundary of that window just as much, if not more-so, than the government does. The fact that the FSA was the policy of the mainstream party successfully painted as being ‘soft’ on Iwi claimants shows just how bad the electorate was on this issue. The FSA was arguably the best deal available given that electorate.

        If high profile Nat’s had, ahem, spoken a bit more sensibly at the time, perhaps that window may have been prettier, who knows?

  5. Daveski 5
    9 November 2009 at 11:34 am

    It’s an interesting debate and there’s a lot I can agree with in Rocky’s post although i’m sure it’s the future posts that get interesting.

    While I understand the point of the native language version having precedence, there are still issues around interpretation that make the Treaty, while laudable, difficult to apply in other areas.

    However, with respect to this specific issue, i’m interested in the problem this poses for the left. The post and the treaty strongly support Maori property rights yet earlier last week we had a provocative post arguing that no one had any individual rights to property ownership per se – that the land should be made available to all.

    It’s an interesting crossroads politically. I’ve always argued that in terms of property rights, the Nats and MP have natural common ground. In terms of “class warfare”, Labour argues otherwise (although it makes assumptions of Maori I’m not comfortable with!).

    And no mention of John Key either – bravo!!

    • Pascal's bookie 5.1
      9 November 2009 at 11:43 am

      You don’t have property rights ‘per se’ Daveski. They are socially constructed by things like, umm, ‘treaties’ and ‘laws’.

      • vto 5.1.1
        9 November 2009 at 12:18 pm

        and ‘wars’ and ‘conquest’ and ‘whoever has the biggest guns’.

        unfortunately.

        • Pascal's bookie 5.1.1.1
          9 November 2009 at 12:21 pm

          yeah, it’s an ongoing process,

          fluid, if you like,

          like blood.

          • So Bored 5.1.1.1.1
            9 November 2009 at 12:39 pm

            Property rights equal ability to hold onto what you have by way of deliberate social constructs backed up by force…..just love it when somebody expects you to respect the expression “property rights”..

            • Daveski 5.1.1.1.1.1
              9 November 2009 at 1:32 pm

              So you’re saying what I’m saying – this puts you and those from the left who believe that property rights don’t exist in complete and total opposition to core Maori values and aspirations?

              Funnily enough, the only way that property rights can be exhausted is through force eg Russia post revolution, Zimbabwe, etc which undermines your point about force.

    • rocky 5.2
      9 November 2009 at 3:59 pm

      While I understand the point of the native language version having precedence, there are still issues around interpretation that make the Treaty, while laudable, difficult to apply in other areas.

      The Maori version has to take precedence – it’s a general principle of contract law that where there is any ambiguity around the meaning, any evidence to show the intent of the parties will be taken into account, but if still ambiguous, it favours the party that did not write the contract.

      As for the interpretation of the Treaty – the Treaty principles in law are those determined by the Court of Appeal in New Zealand Maori Council v Attorney General 1987. The courts, in the present day are the most appropriate body to determine Treaty issues (especially the Waitangi Tribunal who record history before making recommendations). The common law works well in general to apply the law to specific cases while retaining consistency. Though in the words of Jane Kelsey:

      In the process [of treaty litigation] Maori litigants had conceded the authority of the court to define the Treaty of Waitangi, and to subordinate it to the economic, political and ideological requirements of colonial capitalism.

      As for property rights, I think you’re wrong about the right being more closely aligned with the Maori Party. Maori attitudes of property are very different to westernized views of property. Your talk of individual property rights are irrelevant, as that isn’t how Maori view property. Property belongs to the collective, not the individual. I could say more on Maori views of property but that would require a whole other post!

      And no mention of John Key either bravo!!

      I await the decision on the foreshore and seabed before I make up my mind. Though his decision on Maori seats in the supercity doesn’t give me much hope.

      • Daveski 5.2.1
        9 November 2009 at 4:27 pm

        Hi Rocky

        A topical post and an excellent one too. I realised that the issues of property rights have different connotations – I think I was careful not to use the word individual for that reason.

        Still, it was a bizarre politics (at the time) when the party of the Left was seen to be screwing Maori out of potential rights and the party of the right was voting opposed to Maori exploring their rights.

        The broader issue of course is that some here believe that there are no property rights – collective or individual.

        The Treaty Principles is another thing entirely. My beef is more with govt departments (or their officials) who put this into documents and strategies without any meaning or understanding. But this is a separate issue.

        The point of the native language is missed by many and I thought your explanation was excellent.

        Will wait with some interest on the next post!

        • rocky 5.2.1.1
          9 November 2009 at 4:48 pm

          Agreed that both the left and right (oddly except for the far left and sometimes the far right depending on which view Act took on the day you check) screwed Maori on the foreshore and seabed. It’s wonderful to see that both National and Labour have changed their position 5 years on – though by how much we are yet to see.

          The broader issue of course is that some here believe that there are no property rights collective or individual.

          I don’t think that’s true in the context we are looking at. Some people will argue with the idea of “ownership” rather than rights to say kaitiakitanga (guardianship) or particular uses. Maori concepts of property are also very much more about connection with property (belonging to the land) rather than ownership (the land belonging to a person).

          Talk of Maori “property rights” in the modern day is more a discussion of what rights Maori should have in the context of the current capitalist system rather than actually legitimising that system.

          My beef is more with govt departments (or their officials) who put this into documents and strategies without any meaning or understanding.

          That’s actually not true. While the “Treaty Principles” were put into section 9 of the State Owned Enterprises Act 1986 without definition, that definition was well defined by the Court of Appeal in 1987, and still remains the current legal definition.

    • lprent 5.3
      9 November 2009 at 5:27 pm

      I suspect that the ‘left’ is divided on this issue as the ‘right’ is.

      Look at the contrast between the rabid racists (give them nothing, the state should legislate against the treaty) and the uber-liberals (test it in the courts, the state should not be involved).

  6. BLiP 6
    9 November 2009 at 1:13 pm

    Seems a shame to me that in 2009 Pakeha are still in need of education on Treaty issues. Still, great post Rocky. I look forward to tomorrow’s post.

    • gitmo 6.1
      9 November 2009 at 1:47 pm

      Shouldn’t that be

      ‘Seems a shame to me that in 2009 people are still in need of education on Treaty issues. …..”

  7. Chen 7
    9 November 2009 at 3:15 pm

    “I hope it also helps convince people that while Hone Harawira’s choice of words may have been inappropriate”

    Why do people not see that his words were racist? Not simply inappropriate, expletive laden, inflammatory, or offensive, but flat out racist. If he were white he would be resigning or at least issuing a series of apologies.

    • rocky 7.1
      9 November 2009 at 4:26 pm

      Why can’t you see his comments in context? Can you argue rationally against the sentiment he expressed?

      • gitmo 7.1.1
        9 November 2009 at 5:14 pm

        What like people argued rationally against Paul Henry’s comment …… “that was a lady with a moustache”

        • rocky 7.1.1.1
          9 November 2009 at 5:24 pm

          Indeed gitmo, Paul Henry was rude and offensive just as Harawira was. It doesn’t diminish the fact that there was some merit in what Harawira said. And the comparison with Paul Henry isn’t totally fitting, as Henry intentionally made his comments on national television, while Harawira said his words in a private email.

          • gitmo 7.1.1.1.1
            9 November 2009 at 5:38 pm

            Strange I didn’t find either of their comments offensive, all in the year of the beholder I s’pose.

            IMO Hone was just engaging in a “pissing competition” by email to justify his troughing and Paul Henry was being his usual shock jock self.

            Of the two comments though I’d have to say that Henry’s was the most truthful.

            • rocky 7.1.1.1.1.1
              9 November 2009 at 5:45 pm

              BTW gitmo, I realise I banned you from commenting on my posts last week (after your really offensive comment), but you seem to have calmed down a bit since then and are managing to write non-offensive comments. Keep it up.

  8. George D 8
    9 November 2009 at 3:25 pm

    A great post Rocky, you’ve explained the issues clearly and succinctly. I hope you distribute it among Labour MPs and office-holders – they need to be reminded.

  9. JD 9
    9 November 2009 at 3:38 pm

    “Care to share? I only ask because I found his ‘apology’ rather self serving.”

    As self serving as Labour’s apologies at their recent conference? Doesn’t seem to have worked though.

  10. Chen 10
    9 November 2009 at 6:38 pm

    “Why can’t you see his comments in context? Can you argue rationally against the sentiment he expressed?”

    His comments didn’t really bother me, I was just referrring to the collossal difference in reaction by the media. Next time a white politician says something that could be construed as racially tinged I will watch the reaction with interest. Will they refer to the comments as racist – something they seem to have avoided doing here. Will there be calls for resignation on the basis of the racial aspect of the comments, not simply the offensive language? How will Joris de Bres react?

    In terms of his sentiment, that comes as no surprise & you point out a number of injustices above.

    Will be interested to see why you think access was never at risk in your next post.

    • rocky 10.1
      9 November 2009 at 8:03 pm

      I didn’t think Hone’s comments were racist. He referred essentially to the system of white people, not whites as individuals. If comments stereotype individuals from a particular race I will condemn the comments as racist, whatever race they are directed at. I didn’t feel threatened personally as a white person by Hone’s comments as I didn’t feel they referred to me or generally other individuals.

      • vto 10.1.1
        9 November 2009 at 8:10 pm

        I’ll go along with that. Comments which stereotypically degrade an entire race or its culture are sweet as, just dont make it personal.

        Fucking idiot.

        [rocky: you’re getting close to the line with that personalised comment. Try to frame your arguments without abusing me or I’ll delete it next time.]

        • rocky 10.1.1.1
          9 November 2009 at 8:22 pm

          He didn’t degrade an entire race – he degraded the political system of a race. In any case I’m happy to degrade the entire culture of whites, and I am white!

          [lprent: degrade – you mean denigrate ? Have you been picking up the wingnut habits? ]

          [rocky: I was replying to vto and used his word.]

          • vto 10.1.1.1.1
            9 November 2009 at 8:25 pm

            You sure you not the famous rocky balboa? Cause you got a lotta balls but not much brains.

            [rocky: now you’re banned from commenting on my posts. Further comments by you will be deleted.]

            [lprent: and a site ban for a week. Had a read of the thread and that statement was unwarranted. I get the impression that you need to learn a bit more to argue with rocky. It is difficult – I know. ]

      • vto 10.1.2
        9 November 2009 at 8:36 pm

        [lprent: deleted – banned]

  11. JD 11
    9 November 2009 at 9:26 pm

    Harsh.

    If Hone posted here and called you white mofos would he get banned too?

    • rocky 11.1
      9 November 2009 at 9:47 pm

      Yes, anyone would be banned for writing personalised and nasty attacks. Hone’s comments were in the context of the political system, not against individuals.

      • Gitmo 11.1.1
        9 November 2009 at 10:07 pm

        Can we still belittle gingas and women with moustaches or is that a banable offence as well ?

        • rocky 11.1.1.1
          9 November 2009 at 10:10 pm

          Depends on the context – it’s very subjective. You’re probably fine if you steer clear of comments along the lines of the one you made last week about beastiality.

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