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Discussion Paper On Foreshore And Seabed Released


16 August 2003

Discussion Paper On Foreshore And Seabed Released

Te Ope Mana a Tai, a Steering Group led by Te Tau Ihu Iwi has released a discussion document on customary rights today to ensure that Iwi are well informed of the issues around the coastal marine environment.

Chairperson of Te Ope Mana a Tai, Matiu Rei says the recent Court of Appeal decision reinforces our view that the customary rights of Iwi to the foreshore and seabed have never been extinguished.

“This discussion paper takes the debate to the next level. It lays out possible solutions including legislative reform, redress if any customary rights are eroded and a recognition that customary rights have a commercial component.”

Te Ope Mana a Tai is focussed on seeking resolution. Matiu Rei is hopeful that the government’s proposal due for release tomorrow will complement Te Ope Mana a Tai’s discussion paper.

“I sincerely hope that the Government has some solutions to ensure Maori customary rights to the coastal marine environment are recognised, protected and enhanced. If the documents are hugely divergent then we will have a lot of talking to do.”

Matiu Rei says the Government has yet to engage with Iwi/hapu on their proposed legislation, or the nature and extent of the customary rights claimed. He believes engagement is fundamental to any successful resolution.

The full discussion document is available on the Te Ohu Kai Moana website at www.tokm.co.nz. This paper will be the focus for the second national hui on foreshore and seabed at Omaka marae in Blenheim on the 29-30 August 2003.


8. General Directions

The matters set out in this discussion paper raise fundamental constitutional issues for New Zealand. Given the Crown’s intention to make some form of legislative change to provide for public access to the foreshore and seabed, we believe it is vital that the overall system for recognising and protecting customary rights is improved immediately. Any move to extinguish the ability of Iwi/hapu to exclude on the basis of tikanga will create a Treaty grievance. Should the Crown act to remove the right to exclude Iwi/hapu need to consider what form of redress is appropriate.

Direct negotiations, that result in settlements which extinguish or suspend customary rights, may have a weakening effect on the ability of Iwi/hapu to assert to a sufficient level the extent of their customary rights. Therefore Te Ope Mana a Tai recommends that there is legislative protection of customary rights which recognises and affirms all customary rights of Iwi/hapu, as has occurred in Canada.

Both the Courts and the Government have recognised that Maori customary rights contain a commercial and non-commercial component. It would be inconsistent for the Crown to acknowledge the commercial development right in respect of fishing and not in respect of other customary rights in the coastal marine area. New Zealand is known internationally for its recognition of the developmental component of customary rights, as shown through the Fisheries Settlement.

It would be entirely insufficient if the Crown, in its efforts to resolve this matter, merely tinkered with Te Ture Whenua Maori Act without amending any of the reforms that we have discussed to better reflect and incorporate the customary rights of Iwi/hapu.

Iwi/hapu need to consider how best to give effect to their rights either through the Maori Land Court process, through direct engagement with the Crown or a mixture of both (see below Fig 1.).

CHART - Fig 1. http://img.scoop.co.nz/stories/images/0308/2e52ac2c850f5b703e75.jpeg

A fundamental question is whether reducing all customary rights in the claimed area down to a certificate of title is an appropriate recognition of customary rights to the coastal marine area (such as the right of self-governance that includes the ability to manage and control resources in the coastal marine area). A possible alternative could be to seek legislative recognition of the rights themselves and substantive inclusion of customary rights in all legislation and policy that affects the coastal marine area while not removing, extinguishing, or replacing the rights themselves.

We believe that a principled process for engagement with the Crown is essential. It will be necessary for Iwi/hapu to be informed, proactive and united. The principles that follow provide a basis for Iwi/hapu to work together to engage on this issue.
8.1 Principles for engagement with the Crown
We the members of Te Ope Mana a Tai state that our customary rights in respect of the coastal marine area include, but are not limited to:

- Self-governance (ownership, control, regulation, management, and allocation),
- Development (cultural and economic benefit),
- Exclusivity (in accordance with tikanga),
- Use (in its many forms), and
- Access.

These rights are derived from mana and are expressed through tikanga. They give rise to the following principles upon which we wish to engage with the Crown.

1. It is not for the Crown to determine the nature and extent of customary rights but rather it must respect those rights held by Iwi/hapu.

2. New Zealand was held by Iwi/hapu under their mana according to their tikanga. The Treaty confirmed their rights to all New Zealand and established a relationship between Iwi/hapu and the Crown to give effect to those rights.

3. Historically there has been a systemic failure to appropriately and substantively recognise, protect and enhance the customary rights of Iwi/hapu. We would oppose any move by the Crown to weaken or extinguish the present mechanisms by which tangata whenua customary rights are recognised.

4. We will support a Treaty based process that recognises, protects and enhances the customary rights that Iwi/hapu hold in the coastal marine area and the development rights that flow from those customary rights, such as aquaculture.

5. We believe that customary rights should be recognised, protected and provided for in all legislation and policy that applies to the coastal marine area.

6. Any redress, reform or policy initiative that recognises, protects, and enhances customary rights should not undermine any existing settlement that relates to the coastal marine area.

7. We will continue to allow public access to the beach for private recreational use. Statements have been made by the Crown that it will take away the customary right of Iwi/hapu to control access. We believe such an act would amount to an extinguishment of the right of Iwi/hapu to exclude on the basis of tikanga. The removal of a customary right requires the agreement of Iwi/hapu.

8. Iwi/hapu customary rights, both commercial and non-commercial include a developmental component, which must be recognised and given effect to.

9. Customary rights have priority over all other uses in the coastal marine area.

10. We do not agree that the short legislative timeframe signalled by the Crown is sufficient to consider such a longstanding and complex issue.

11. The Crown should delay its current legislative agenda until an agreed open and principled process has been established between Iwi/hapu and the Crown.

12. Where areas of foreshore and seabed have been taken by legislative action or otherwise unfairly acquired by the Crown, any loss of customary rights that has resulted may be a Treaty grievance that the Crown should move to address as matter of urgency through the Treaty settlement process.

13. A pre-emptive move by the Crown to curtail the scope of Iwi/hapu rights in the coastal marine area will create a significant Treaty grievance.

8.2 Where to from here?

- This discussion document will be made available on www.tokm.co.nz.

- We would like to discuss and hear your views on the discussion document. Should Iwi/hapu have feedback, views or ideas that they think Te Ope Mana a Tai should hear we are happy to come and talk “kanohi ki te kanohi” at Iwi/hapu hui. We can also receive your feedback via email at foreshoreandseabed@tokm.co.nz and a dialogue box has been set up on www.tokm.co.nz.

- A summary and analysis of the Crown’s proposals will be prepared shortly after they are released and will be distributed widely

- Te Ope Mana a Tai also asks that Iwi/hapu consider what your particular rights and tikanga are in relation to the coastal marine area so that you can develop an appropriate response to the Crown’s proposals when they are released.

- Prior to the Omaka Hui, Te Ope Mana a Tai will circulate a set of draft options for consideration at the hui.

- The hui will be held at Omaka Marae in Blenheim on the 29th to the 30th of August. At the hui, this paper, Crown proposals and the draft options will be discussed, with a view to presenting a coordinated response to the Crown.


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