Flavell: Walking Access Bill
Walking Access Bill
Te Ururoa Flavell, MP for Waiariki
Tuesday 15 April 2008; 4.20pm
Tena tatou te whare i tenei po.
The Maori Party has an active interest in any legislative change proposed around the concept of safe, unimpeded walking access to the outdoors, to our coasts, our lakes, and our rivers.
We do so, driven by the knowledge that the Crown, as a Treaty partner has an obligation to actively protect the interests of Maori in land. This is an historic partnership relationship that is, rather unique, and involves the Crown and its agents giving full recognition to its duty of active protection.
Madam Speaker, the Federation of Maori Authorities articulated this clearly in their submission on the Government's Outdoor Walking Access consultation document, saying and I quote:
“Article two of the Treaty granted ‘te tino rangatiratanga…o ratou whenua o ratou kainga me o ratou taonga katoa’, or the ‘full and undisturbed possession of their lands and estates fisheries and other properties’. This article therefore guarantees Maori the right to determine access to their land.”
And so when the Honourable Parekura Horomia, current Maori Affairs Minister, announced in March 2007 that, and I quote again:
Maori land was special and it was important to note that the proposals would not threaten the existing rights of owners of Maori land, or individual Maori who hold land in general title.
we were pleased– if a little bit cautious. It seemed as if, in direct contrast to the Foreshore and Seabed Act, that Maori landowners were to be afforded protections alongside private owners.
Madam Speaker, Mr Horomia continued and went on to say public walking tracks across Maori land will be created only if Maori landowners agree and following a process of negotiation.
So this was pretty pleasing.
Clause 30 of the Bill deals specifically with Maori freehold land. It requires that the NZ Walking Access Commission negotiate with the appropriate land owners, whether they are trustees, a Maori corporation, sole owner, joint tenants, or owners in common.
There are two key words here – agree and negotiate.
Mr Horomia had said that public walking tracks across Maori land will be created only if Maori landowners agree;
This was spelt out with unmistakeable clarity, again by the Federation of Maori Authorities’ when they said:
The Federation wishes to make it clear that we oppose land access across Maori land and general land owned by Maori including the extension of the Queens chain to the coastline and waterways on Maori land or general land owned by Maori without negotiation and agreement from the landowners concerned.
The Federation concluded their submission by reinforcing the view that: “access should be negotiated and agreed upon by owners or managers and that the access is only for recreational purposes”.
The catch for us Madam Speaker is that we do not see much evidence of that word, agree, in the Bill, until we get to the references related to public access over private land. The Bill proposes that ‘Public access should be enhanced where private land is involved through voluntary negotiation and agreement with landholders’.
A key point raised in the consultation, was the proposal that iwi or hapu should be empowered with authorising rights of access. The hapu or iwi will protect its own rights and hold those rights and they must be made clear in any guidance to the public.
I return again to the Maori Affairs’ Ministers words: public walking tracks across Maori land will be created only if Maori landowners agree.
In order that the House understands just how strongly tangata whenua, people of the land, feel about this issue, let me share two further comments from the submissions:
It is most important that this principle be carried over in relation to any public access to our waterways. Any legislative access without our consent would cause massive damage to our relationship and we cannot imagine that the Crown would contemplate such a course.”
The following comment reminds us about some history:
I suspect and hope that the authoritarian socialist confiscatory approach is no longer acceptable to New Zealanders. When carried out against Maori land in the 19th century this caused grievances which still persist and show little signs of going away.”
Consent, of course, implies that which is freely given and not coerced. But the Bill's purpose to open up all lands for public access raises the very real and serious concern that, once again, a government's plan will be pursued in such a way as to obliterate any opposition.
We have been there before, Madam Speaker, as my Bill to amend the Public Works Act, reminds us.
We are also extremely concerned at any proposal to amend the Resource Management Act to establish esplanade strips over Maori land or general land held by Maori. Unmanaged strips and esplanades may increase pests and diseases, and consequently create additional costs and concerns for Maori land owners.
Maori landowners have never denied access to the public, without good cause.
I will say this again, as Metiria Turei pointed out earlier, this is a very important point.
Maori landowners have never denied access to the public, without good cause.
This was at the hub of the issue around the foreshore and seabed legislation. The hysteria that was whipped up around access to the foreshore and seabed, presupposed a mythical time in which Maori were denying Pakeha access to the beaches.
The reality of course, was vastly different.
If there have been prohibitions on access to areas for any New Zealanders, it has been because mana whenua will have had good reason to do so.
That good reason may be the result of access being abused in the past, or concerns over safety or protection of the environment.
There may well have been cultural reasons for the protection of taonga, waahi tapu, waahi tupuna, urupa, pa, marae and papakainga sites.
These sites are if culturally significance for Maori as part of our heritage, nga taonga tuku iho. The sites will be associated with important events which give meaning to our status as whanau, hapu, and iwi – and they are literally windows to the past.
Access may have been prohibited, in keeping with the Kaitiaki roles of tangata whenua, to be custodians, protectors and guardians of the taonga associated within our area. The practice of rahui to conserve or replenish a resource will be relevant here. When a rahui is placed upon an area, it means that people are effectively banned from taking or using any resource in that area.
These are the things that tangata whenua take into consideration when considering the issue of access.
One of the concepts we support in the Bill is the development of Code of Responsible Conduct for users and landholders. Most of the submitters to the Outdoor Walking Access Panel agreed that a code of responsible conduct should apply to both private and public land.
A Code of Conduct should address issues specific to Maori land including provisions relating to respect of sacred land and compliance with local rahui. It should give a standard to provide guidance, and also to return to as a basis for clarification if the Code was breached in any access situation.
Madam Speaker, the key to the successful implementation of the Bill will be the way in which communication opportunities are taken up.
There is, inevitably, and as already mentioned, the concern that the proposed Commission will compel Maori landholders to negotiate access, despite any opposition that may be raised.
The Maori Party also has concerns about the negotiation of walking access over land subject to Treaty claim. What say will mana whenua have over these lands; what provisions will be made for this communication to take place?
Madam Speaker, the Bill establishes the Commission as a Crown entity with the status of a Crown agent. The Commission will be responsible for declaring and administering walkways and for encouraging and co-ordinating improvement of walking access.
The Bill recommends that at least one of the 5-8 Commission board members is to have knowledge of tikanga Maori. In the current Walking Advisory Board, Peter Brown is affiliated with Turanganui a Kiwa, Ngati Porou, Te Arawa and Tuwharetoa.
The difficulty of course with having one Maori member on a Commission, is that there is always enormous expectation placed upon their shoulders to be able to carry the aspirations of whanau, hapu and iwi into all decision-making matters. It is also very easy to be marginalised.
It is obviously helpful, therefore, that the views expressed in submissions such as from the Federation of Maori Authorities are able to be accessed to gauge views widely held in the Maori community as well as by a majority of the Maori landowners within the FOMA membership.
Madam Speaker, to assist the process for Maori to be heard we will allow this Bill to go to select committee, in order that we receive feedback on some of the outstanding, and persistent concerns about Maori land.
Issues such as what happens in the case of the 16,000 unmanaged titles – Maori land with no legal management structure in place? Or how Maori economic development, such as tourism ventures, will be affected by public access?
But there is one word that we say that might sum up our reaction to this Bill – and that word is caution.
The Maori Party looks forward to the debate.