There has been much furore today over Hone Harawira’s latest comment that:
If I should be suspended for my language, he [Phil Goff] and his mates should be lined up against the wall and shot.
I thought the comment was appropriate in the circumstances, as a response to Phil Goff calling for him to be suspended over his use of language. Hone was simply trying to put some perspective on his use of bad language, suggesting that if his punishment should be as severe as suspension, then Labour’s punishment for the Foreshore and Seabed Act should be much much worse. Read the following on the Foreshore and Seabed Act (following on from yesterday’s post), and consider what deserves a worse punishment a few inappropriate words, or the Foreshore and Seabed Act?
On June 19th 2003, the Court of Appeal ruled that Maori had the right to have their claim for title to the foreshore and seabed heard in the Maori Land Court. The basis for the decision was that native property rights continued until lawfully extinguished, and that (from the Court of Appeal decision):
The onus of proof of extinguishment lay on the Crown and the purpose had to be clear and plain. The property interest the Crown had therefore depended on any pre-existing customary interest, the extent and content of which was a matter of fact discoverable, if necessary, by evidence of the custom and usage of the particular community.
In other words, if Maori had customary interest in parts of the foreshore and seabed, they continue to have property rights until those rights are lawfully extinguished. Consistent with Article 2 of Te Tiriti (covered in yesterday’s post), Maori can only give up their property rights by consent. A hearing in the Maori Land Court is necessary to determine by evidence from both Maori and the Crown which, if any, areas of the foreshore and seabed Maori should still hold lawful title to.
The very next day following the Court of Appeal’s decision, Prime Minister Helen Clark announced that the Government would legislate if necessary to ‘preserve the status quo’, because it was ‘important to establish what has long been assumed that the beaches and seabeds have long been there for all New Zealanders’.
3 days later, the Government officially announced it would legislate away Maori rights to have their claims heard in court. This was a massive breach of the Treaty Principles that* ‘require the Pakeha and Maori treaty partners to act towards each other reasonably and with the utmost good faith’. So before I go on to discuss why legislating was unnecessary, it should be noted that the Crown have never given any adequate justification for legislating without first even attempting negotiations with Maori in good faith.
The argument that the Crown needed exclusive title to protect access to the beaches was misleading, given that there has never been unrestricted access to the foreshore and seabed. As Moana Jackson has rightly pointed out: “Port Companies, the Department of Conservation, and numerous other authorities have for years restricted entry to the waterfront”. Likewise, many people seem to believe in the myth of the Queen’s chain, said to be a 20 metre strip along the edge of all waterways and coasts. The Queen’s chain doesn’t exist in either statute or the common law, and only approximately 70% of New Zealand’s coastal land is currently in public ownership. If it were simply about protecting access to the beaches, appropriate covenants could be put on the foreshore and seabed to protect access other than in special circumstances such as for rahui, tapu, or developments where in any case a resource consent would be necessary.
The Waitangi Tribunal’s report on the Crown’s Foreshore and Seabed Policy outlines numerous options available to the Government that lessen the prejudice against Maori. Many of the options I list below stem from ideas in the Waitangi Tribunal’s report.
If the Government were so determined not to allow Maori to claim title to parts of the foreshore and seabed, they could have sat down with Maori to properly explore the options that were genuinely available. I think that still applies today, and any alternative other than simply repealing the Foreshore and Seabed Act should involve consultation and negotiations with Maori, not just the Maori Party. Therefore the alternatives I outline below are not ones that would be acceptable without agreement from Maori – but given the outcome of other negotiations in good faith with Maori, I can’t see why obtaining an acceptable solution isn’t possible.
Giving Maori back their right to go to court would firstly establish exactly what the situation is that we are dealing with. Any problems stemming from court decisions could be dealt with when and if they arise, so that solutions could be found to real and known problems, rather than the purely hypothetical situations given as an excuse for legislating. If it were then determined as a matter of public policy that the Government needed to legislate away Maori property rights, at least the nature and extent of those rights would be known, and compensation could be properly negotiated.
Another option would be to follow along the lines of the Orakei Act 1991, which affirms Ngati Whatua ownership of the Orakei Reserve. Mechanisms were put in place to allow control and management to be exercised by both Maori and the Crown (delegated to local government), and to confirm public access. In the words of Sir Hugh Kawharu: “public access to the foreshore at Okahu Bay has been unrestricted from the day title returned to Ngati Whatua”, and “here at least the mana of Ngati Whatua stands tall, intact, and protected”.
Finally, if ownership is to remain vested in the Crown as legislated in the Foreshore and Seabed Act, not only is compensation required, but the Act needs to be amended to enable true customary rights. The Foreshore and Seabed Act forces Maori to prove their “customary rights”, narrowly defined by the Act as only those “traditional activities” that have “continued to be undertaken, substantially uninterrupted, in accordance with tikanga from 1840 to the present”. Of course the raupatu (confiscation) of land and resources since 1840 has effectively made that impossible.
In conclusion, it is pleasing to see that the political climate seems to have substantially changed since 2004. That National managed to convince people that Labour’s Foreshore and Seabed Act was “soft on Maori”, especially after Helen Clark’s assertion that the Hikoi were a bunch of “haters and wreckers”, says a lot about the situation at the time. 5 years on and both Labour and National seem to have come to their senses. Let’s hope that any solution is a lasting one acceptable to both Maori and the Crown.
* As said by President of the Court of Appeal, Robin Cooke, in interpreting the Treaty Principles in New Zealand Maori Council v Attorney General 1987.