P O Box 5098

Whangarei

Telephone 09 430 7464

8 July 2004

Clerk, Select Committee on the Foreshore and Seabed Bill

Secretariat Room 9.12a

Bowen House

Parliament Buildings

WELLINGTON

Submission on the Foreshore and Seabed Bill 2004

1.0   Introduction to NURM

1.1   Northland Urban Rural Mission – or NURM – is a collective of community and church people, with a range of networks throughout the North, which has worked on Community Development, Social Justice and Tiriti Justice over 23 or so years, with a driving vision of contributing towards building a Tiriti-based society.

1.2   To draw on our experience: in 1998, alongside community and Tangata Whenua groups, we submitted before the Judicial Hearings Commission on the proposed Port Terminal at Marsden Point at the throat of Whangarei-Terenga-Paraoa, that the closing of the foreshore, the scouring of the seabed, and the destruction of kaimoana areas NOT happen until the Treaty claim into the area be heard by the Tribunal. Specifically we submitted that the title to the seabed and foreshore at this point had not been extinguished, and asked that the extant grievances be not exacerbated. Tangata Whenua and community submissions to this effect could be now seen to have been prescient.

1.3   We have a keen interest in Community Development in practice. Assisting and being part of the building of communities here in Te Tai Tokerau is one of our aims. The direction of this legislation and related behaviour will counter and possibly be destructive of who we collectively are in the North, and how we work with each other.

2.0   Request to Appear Before Committee

We seek the opportunity for our representatives to appear before the Committee in person. NURM asks, mindful of the hopes of other groups alongside ourselves, that the Committee hold hearings in Northland, at least at Kaitaia and Whangarei. We ask to appear before the Committee in Whangarei.

3.0 We oppose the Bill in its entirety, and ask that it be withdrawn in favour of more respectful and substantive negotiations with Tangata Whenua.

4.0  Summary of Submission

NURM opposes the Bill for the following main reasons

4.1 The Bill represents a new Confiscation, and ‘assumptions’ cannot blur that.

4.2 The Bill is racist

4.3 The Bill severely limits and controls Customary Rights and Tipuna Title

4.4 By this Bill, the Crown overrides its Treaty of Waitangi obligations

4.5 The Bill does not speak for or have the blessing of many Pakeha and Tauiwi

4.6 The Bill still allows privatisation of the foreshore and seabed

4.7 The Bill represents a significant breach of ‘due process’

4.8 The Bill leaves future generations with significant problems

5.0 Commentary

5.1 ‘Assumptions’ disguise real Confiscation

In 1894, the Government of the time acted to validate what people then assumed was the case by passing the highly dubious Act to Validate Invalid Land Sales – the assumption that certain pieces of land were Pakeha property. We can see the same pattern replicated in this Bill, its modern extension – the pattern of a Pakeha way of making illegal things legal, or making things “supposed” into reality. The reality is confiscation [s 3 (a) ].

It has been said, to justify this legislation, that “it has always been assumed” that the foreshore and seabed were in the Crown’s hands (as Dep PM Cullen indicated to Grey Power). The Bill, therefore, has been seen as “clarifying” the situation (cf Explanatory Note to the Bill p2) and rectifying any anomalies by asserting Crown title. This is not an argument NURM accepts; such assumptions do not invalidate Maori rightful claims.

This is not a ‘simple’ or ‘status quo’ issue and legislative response, as some have held. The issue of title has been argued through the decades, and must not be demeaned by Crown and Pakeha invisibilising the issue and normalising their own assumptions.

Some Pakeha and most Maori do not ‘assume’ things to be that way, and it’s untrue to say all did. To quote from one person, recorded in Maori Land Court minutes books of 1993 and 1994, in a case within Te Tai Tokerau:

“(As the) identified people holding mana over the islands and the contiguous fishing ground, we wish to protect our customary rights and title against the claims of others. We have the cultural and spiritual connection with that place and those customary uses, taonga not to be sullied or muddied by these conflicts. There are no boundaries or divisions between mana whenua and mana moana – they are one, a continuum, rather than something adjoining” (Extract 21 KH 148 - 151. Thurs 2 Dec 1993. Kaikohe).

“I comment upon the Crown having ‘claimed’ the seabed – against whom? They have forgotten the rangatiratanga side of the equation. This application is not about taiapure fisheries – whilst it may be argued that the Crown has made provision for tikanga, it (the Sealords settlement) subordinates rangatiratanga to kawanatanga. That is not the relationship – they stand together, not one subordinate to the other” (Extract 77 WH 62 – 69. Friday 12 August 1994. Ngapuhi Marae, Matauri Bay).

This speaker understood clearly that the foreshore and seabed were in the hands of the local hapu in the Cavalli Islands, and that customary rights and title were not to be trivialised. He is Hon Dover Samuels, the Labour MP, saying here what he has often been quoted as saying elsewhere.

Wrong assumptions of Crown control, or misperceptions alleged to be widespread, are no justification for real confiscation. All five judges of the Court of Appeal – including the most conservative – clearly stated that the customary titles could not be said to have been extinguished.

5.2 The Bill is racist

We bluntly need to say the effect of this Bill is racist – this may not be its drafters’ intention, but it is its actual effect. The sole negative impacts of the Bill fall upon Maori, no-one else. We cannot find in the Bill that Pakeha, private owners, local or central government are obliged to prove their rights and title, at some huge cost to themselves, with uncertain outcomes, as are Maori.

5.3 Customary and Tipuna Title

This Bill extinguishes Customary rights (s 3, 11, 29) and replaces them (ss 35, 39, 42) with a shadow of their accepted meaning in order to contain and sideline them, and this is not the empowering concept for Maori that Government – at times – and some Opposition voices claim. They become reduced to a form of mere trivial use right (like the Minister of Maori Affairs’ hypothetical “hangi stones”). In international jurisprudence hereto recognised in this country, and in the practice of Tangata Whenua in this country, customary title is a robust concept that – far from frightening us non-Maori – must be dealt with in its robustness. It includes the right for indigenous peoples to economically and commercially develop their waters, lands and seas, not constrained by having to use the tools of some particular time in the past.  Even colonial concepts of Common Law acknowledged this. We are fearful of the long term effects of so ‘downsizing’ / minimising Customary Rights – where next will future Governments go in applying this limited concept of ‘customary rights’? The thought concerns us… The ‘certainty’ mentioned in the Crown’s guidelines translates into certain loss of customary rights for Maori.

Customary Rights and Common Law come from the Western side of our heritage. We understand Maori to have defined the reality in a different way, picked up in terms like ‘Tipuna Title’ and the Tiriti term of ‘Rangatiratanga.’ This Bill tramples not only over the definition of Customary Rights, but over the deeper indigenous rights and understandings that were prior to and confirmed by the Treaty. And such trampling – such ‘naming’ and its associated assumptions – is itself racist, overlaying and disemboweling the realities of Rangatiratanga with the new names of Customary Rights Orders and Ancestral Connection Orders. More, the Bill then obliges Maori (only) to apply to prove those new “rights”, at great expense and energy-sapping difficulty, or after 2015 to forgo any Customary and Tipuna Rights.

The Bill must be seen in this broader context, as a breach of Treaty-guaranteed prior rights of Rangatiratanga, and so withdrawn.

5.4 The Foreshore and Seabed ARE a Treaty issue

Having heard Government members say this is not a Treaty issue, we feel we have to address this matter. While the entry point for this legislation is the Common Law concept of customary title, its treatment by the Crown is of necessity a Treaty issue. The relationships between the Treaty parties and how the Crown is currently treating Maori / Tangata Whenua is of necessity a Treaty issue. Moreover the Treaty itself guarantees pre-1840 rights will be protected and continue into the future, a provision which this Bill overrides. The Waitangi Tribunal clearly saw the issue as a Treaty issue. And as a Treaty issue it deserves behaviour consistent with the high intentions of the Treaty that afforded the Crown any authority in this land in the first place.

5.5 Not in our Pakeha name

Those members of NURM who are Pakeha, here in these lands and seas under the aegis of the Treaty, say to the Crown that we do not want you to pass this Bill in our name. There are many Pakeha and Tauiwi in this country who are deeply disturbed about the Government’s handling of the issue and the Crown party to the Treaty behaving badly in unilaterally redefining and removing Tangata Whenua’s customary and tipuna rights – we members of NURM are amongst them. Our Crown representatives can well act much more reasonably and fairly, and with integrity, on this issue. This integrity was evident in the apologies and reaffirmations of mana that previous Governments of differing political persuasions, and people in general, saw in the Treaty Settlements so far enacted; are we to retract those acts of integrity now, and say we were only pretending? It has to be stated that Te Tiriti / The Treaty is now accorded a place in the bureaucratic structures of government, national and local, in churches, in community groups, which it did not have 15 to 20 years ago - in fact, never since 1840. Are we to believe this has all been tokenism?

5.6 Privatisation still on the agenda

The Crown says that, by this Bill, it is acting to protect the foreshore and seabed from privatisation. In fact concern about growing privatisation at the time, and after the forthcoming lifting of the aquaculture moratorium, was one of the motivations taking Ngati Apa in the Marlborough Sounds to Court. There is more protection for these areas in Maori hands than in Crown hands. Further, this Bill does not address the freehold title of foreshore / seabed of anyone else but Maori; it does not require any other party to prove they have valid freehold title, only Maori to prove they have title; and actually goes further – as evidenced in the s12 reference to S355 of the RMA, it actually facilitates the privatisation of these areas into local government or private hands. An Act of Parliament (as in so many other instances in the 1980s and 1990s, easily passed) is all that is required to privatise parts of the foreshore and seabed.

A local case in point: the Marsden Point Port Terminal was opposed because (inter alia) the foreshore and seabed customary title had not been extinguished. The title was “assumed” to have been passed to the Crown-created Northland Port Corporation, and already the way has been opened up for the Marsden Point Port Terminal to be moved into local or foreign private ownership.

5.7 A significant breach of ‘Due Process’

The Bill shows us Government / the Crown unilaterally cutting across ‘due process,’ and without the consent of those most affected, both across current litigation in which it was a litigant, and against the possibility of any future use of the Courts by Maori to achieve. The Bill does this contrary to basic concepts of fairness in Western society and law, let alone Maori law. (The Bill seems to us – even with its inconsistencies – to be almost maliciously plugging each small gap and closing each mousehole covering the Crown against any possibility Maori may have to seek justice. It also seems to reflect the shifting sands and passing tides of political expediency which determine if, when and how Maori are to have any place in their own land). This interruption of ‘due process’ is very much at the core of this Bill.

The new ‘due process’ set up is a disturbing one. With this Bill we are painfully reminded of the huge costs and difficulty incurred by Tangata Whenua after the Native Lands Court was set up in 1863, when they were forced to camp at Court for months to prove ownership (individually) they already had (collectively), and having to incur large debts and to mortgage and lose land by the very process of doing so – all for the benefit of facilitating settlers buying up land.

We wait to evaluate the value of the ‘due process’ this Committee and submission  process represents, and will look for open minds freed from political expediency, and for justice.

5.8 Concerns for Future Generations

NURM is really concerned about the mess this current generation leaves for so many, including ourselves: the raupatu / confiscation enacted in this legislation being how this generation and the Crown itself will be marked in the future; the extreme  difficulty of once again having concrete evidence presented to new generations of the brutal face of colonisation.

6.0 In Conclusion:

NURM asks that the Bill be withdrawn in its entirety, replaced (if felt necessary) with interim legislation that stops all sale of freehold foreshore and seabed titles, while the Crown / Government engages in full negotiations – the “longer conversation” - with Tangata Whenua, as recommended by the Waitangi Tribunal. This conversation may take time, but all good and important things do take time to deal with properly. The Crown’s own processes and Maori resistance over the years since 1840 have themselves taken time, and appropriate resolution should not be rushed.

We ask this Committee to conduct its own processes and make recommendations to the House with integrity. The issue - with its significant implications for this country deserves nothing less.

We look forward to addressing the Committee in person.

Tim Howard

On Behalf of Northland Urban Rural Mission