Reality

Tidal Waves

Derek Tovey

The way forward must be built upon a foundation of good education about our history, and better efforts to understand each other. Non-Maori must get to know Maori, and Maori customs and worldview, so that we can approach each other with generosity of spirit and move forward out of a position of greater trust.

In June of last year the Court of Appeal gave a ruling in favour of the right of eight Maori iwi in the upper South Island to take a case to the Maori Land Court to establish whether they had customary title to foreshore and seabed in the Marlborough Sounds. No one at the time could have foreseen all the flow-on effects of that decision: not the Government, nor Maori, nor the general population of New Zealand.

In June of last year the Court of Appeal gave a ruling in favour of the right of eight Maori iwi in the upper South Island to take a case to the Maori Land Court to establish whether they had customary title to foreshore and seabed in the Marlborough Sounds. It's fair to say, I think, that no one at the time could have foreseen all the flow-on effects of that decision: not the Government, nor Maori, nor the general population of New Zealand.

The Government did not like the Court of Appeal's decision. It felt that the way was opened for Maori to gain "effective private ownership of the foreshore and seabed". This might arise from interpretation of previous legislation, unintended when it was passed. The Government proposed to introduce legislation, the Foreshore and Seabed Bill, to "make it clear that the Crown owns the foreshore and the seabed on behalf of all current and future New Zealanders",1 and to secure the public's right of access to the foreshore and seabed.2

The Government's proposals produced a wave of opposition and concern amongst Maori. There was a widespread feeling that customary rights would be limited, or even extinguished. When it came to rights that might amount to 'property rights', the legislation would effectively expropriate those rights. Maori opposition has been characterised by unanimity and strength of opinion, seen in the stand taken at hui held around the country.

his groundswell became one of the two 'tidal waves' that has swept New Zealand this year: the hikoi that saw upwards of 20,000 people converge on Parliament in early May. The other 'tidal wave' has been the response of what has been called 'middle New Zealand' (or many non-Maori) to the issue. In many respects, this wave was unleashed by Don Brash's now famous speech to the Orewa Rotary Club in late January.

The backwash from that speech has played out in the papers, on television, on talkback radio, and in countless living rooms. Other splashes have included the sidelining and replacement of National's sole Maori MP, Georgina te Heuheu. Her replacement, Gerry Brownlee's first public pronouncement on Radio New Zealand's Morning Report as spokesperson for Maori Affairs was, as I recall, an outburst about being sick and tired, as a Pakeha, of feeling marginalised in his own country!

On the Government side, Tariana Turia's opposition to the Government's bill saw her resign her seat and go to a by-election. As co-leader of a newly formed Maori Party, she has now taken her seat in Parliament at its first MP. National has climbed in the polls; the political scene is complex and the next election will be hard fought and full of interest.

Partly in reaction to the foreshore and seabed issue, and partly as a result of the debate raised by Brash's speech, New Zealand now faces questions about the continuing place of the Treaty of Waitangi in its national life, and angst and anger in its race relations.

Why has the foreshore and seabed issue caused such 'tidal waves'? Why are Maori so upset about the Government's proposed legislation? Why are non-Maori so unsettled about the place of Maori and their 'rights', seen by many to be 'privileges'? What is the legislation all about, and what is the way forward out of the current turmoil? What follows is my attempt to unravel and understand some of the issues.

he Foreshore and Seabed Bill is intended to clarify the status of the seabed and foreshore as owned by the Crown for the benefit of all New Zealanders. As "public domain vested in Crown ownership", access to public foreshore and seabed is guaranteed to all. However, the Government also recognises that Maori have certain 'customary rights': rights to undertake such customary activities as gathering sea-food, launching waka, protecting burial grounds on the seashore, and perhaps on occasion the right to pronouncing areas of the foreshore temporarily off limits for conservation purposes.3 Maori also have "ancestral connection" to stretches of foreshore and the contiguous seabed, so the bill will provide legal recognition of these activities in defined areas.

Moreover, Maori (or anyone else who obtains a 'customary right') will have "enhanced opportunities to participate in decision-making affecting the foreshore and seabed" with regional local authorities.4 Where a group (in most, if not all cases, this will be a Maori hapu or iwi) thinks that it may have been entitled to customary property rights to an area of foreshore or seabed had the Government not been vested with ownership of that area of foreshore and seabed by the bill, it may apply to the High Court to have that entitlement tested. If the High Court finds in the group's favour, then the group will enter into discussions with the Crown on redress.

At first blush, as a Pakeha, this seems all very fair and reasonable of the Government. However, I have been impressed by the strength and unanimity of Maori opposition to the Government's proposals. So what exactly is the problem?

t heart, Maori are concerned about the process that the Bill has subverted and interrupted. And there are good grounds for seeing the Bill as essentially discriminatory against Maori, and only Maori.

The catalyst for this Bill was the Court of Appeal's decision in favour of the eight South Island iwi in the Marlborough Sounds case. These tribes had begun a claim through the courts in 1997, out of frustration at the fact that the Marlborough District Council had ignored their customary rights and was denying their applications to establish marine farms. They wished to test whether they did, in fact, have a claim to customary title over an extensive area of foreshore and seabed.5 What the Court of Appeal's decision did was allow the claims to proceed, but there was no certainty, only a possibility, that the tribes would be found to have the customary title they sought.

The Government's move to introduce legislation has cut across that process. More than that, the Bill will effectively deny Maori recourse to the courts to determine whether or not they have customary property rights. The bill will not allow the High Court or the Maori Land Court to determine whether Maori have any legal rights in the foreshore and seabed.

Instead, the courts will be permitted to ascertain whether or not Maori would have had such rights had the bill not vested ownership in the Crown. If a court finds that a group of Maori would have had rights that would amount to customary property rights, then the Crown will consider redress. Such redress will be entirely at the Crown's discretion and will be whatever the Crown chooses to give.

The Waitangi Tribunal considers that by removing the right of citizens to have their property rights determined by the courts, the Government is effectively removing those property rights.6 When property rights are so removed, the citizens affected should be duly compensated, but in this case compensation is not on offer. Yet the Government has stated that it would like, in the future, to bring areas of foreshore and seabed currently under private ownership into the public domain. In these cases, however, the areas will be acquired by purchase or the owners will receive full compensation.

he bill is, therefore, discriminatory. It removes the right of one group of citizens, Maori, with potential property rights in foreshore and seabed, to have those rights determined by due process of law. It pre-empts the possibility of Maori gaining full compensation, offering in place of that the less certain, and probably less valuable, option of redress.

As the Waitangi Tribunal's Report states: "It is only Maori customary rights that are expropriated by the policy. All other existing private and public rights are protected. Where other classes of private rights amount to ownership, there is every indication that the rights will be bought following negotiation, or their owners compensated for their forcible removal."7

In its role as 'the Crown', Government is the inheritor of the partnership established with Maori through the Treaty of Waitangi. It is, therefore, incumbent upon Government to fulfil its role as a mediator between the rights and needs of Maori and non-Maori. It is particularly charged by the Treaty to ensure that Maori are treated equally as citizens under the law.

It is also required by Article Two of the Treaty to uphold Maori in "the full exclusive and undisturbed possession of their Lands and Estates, Forests, Fisheries and other such Properties as they may collectively or individually possess, so long as it is their wish and desire to retain the same in their possession".8 The bill is based on the assumption of Crown ownership of foreshore and seabed, and removes the right of Maori to have this assumption tested at law, or even to receive compensation should it be found that Maori do have a claim to customary ownership.

This legislative move by the Government is surely 'putting the cart before the horse'. Government should first establish where Maori may have a claim to ownership, and then negotiate a solution. The Waitangi Tribunal's opinion is that in this case the Government is taking (as it were) a sledgehammer to crack a nut. It could have let the legal process run its course, and legislated for any real difficulties as they arose.

t is very unlikely that due legal process would have resulted in large-scale transfer of foreshore and seabed into Maori ownership. In international law, establishing aboriginal customary property rights is difficult, as it is under common law.9 The Crown could legislate to provide a definition of "customary title" that does not equate to freehold title. Legislation could provide for public access and make customary rights inalienable.

The Tribunal also suggests that it could adapt the courts system to allow for decisions that recognise customary interests in foreshore and seabed without having to provide a title that amounts to freehold ownership.10

Part of the problem is that the Government has rushed to legislate and is in danger of closing off other possible solutions before they have been fully explored. On previous occasions, over the ownership of lake beds for instance, the Government of the day was prepared to negotiate a mutually acceptable solution with Maori. Why not the same in the case of the foreshore and seabed?11

Many Maori voices have expressed the view that they do not want to prevent public access to the beach and foreshore. Dr John Mitchell, a Te Tau Ihu Iwi spokesperson, for instance, has said that the public's access to the beach is not at issue.12 In another context he has said, "We've said repeatedly that we've never denied access to the public to any part of the Wakapuaka estuary for what are legitimate, reasonable recreational purposes".13 In fact, as the Waitangi Tribunal points out, it is part of Maori custom and their responsibility as guardians to extend the 'hospitality' (manaakitanga) of access to others.14

However, this right of access is exercised under the umbrella of 'kaitiaki' or 'guardianship'. This means that sometimes Maori feel that responsible discharge of this guardianship requires the exercise of control over access and activities undertaken on the beach and foreshore. The context of Mitchell's remarks above was the erection by Maori of a gate across one of the access tracks to the estuary, in an attempt to prevent further damage to cockle beds and burial grounds.

The Waitangi Tribunal noted instances where local Maori were exercising their kaitiakitanga 'actively', and gave as an example a Tainui hapu that advised people not "to ride motorbikes over the sandhills at Te Kopua, where pingao has been planted to retard erosion".15 Many Maori contributors to an online forum hosted by Tu Mai magazine spoke about the importance of kaitiaki as part of their customary rights.16 Of course, exercise of kaitiaki carries with it the potential both for misunderstanding between peoples, and the occasional instance of overbearing attitudes or rough tactics.

nother issue raised by the bill and the process that has led up to it is the nature of sovereignty, or the context in which the Government's 'power to govern' should be exercised. One of the objections that Michael Cullen raised against the Waitangi Tribunal findings was that the Report contained "an implicit rejection of the principle of Parliamentary sovereignty". Dr. Cullen maintained that the "power of Parliament to change the law was central to the exercise of sovereignty and therefore the exercise of Article One of the treaty" (ie Crown governorship).17 But, as the Report itself points out, the exercise of sovereignty must be premised upon values of justice and fairness.

In a democracy, of course, parliamentary sovereignty is also dependent upon 'the will of the people'. Parliamentary sovereignty and the will of the people, however, are subject to the pressures of political expediency and political interests. Values of justice and fairness are also open to manipulation, and to different interpretations by different groups and interests. In the wrong circumstances, such forces can overwhelm good government and the best human values and ideals.

Thus it is helpful to have benchmarks against which to test whether justice and fairness is being established or observed. Providing an adequate benchmark is partly what is behind current calls for a written constitution. But in the absence of this such things as treaties, a bill of rights, or even internationally agreed or recognised conventions provide necessary guides to, and checks against abuse of, sovereign power.

The courts are the best system for determining how these should be interpreted and applied. All this means that a proper exercise of parliamentary sovereignty calls a Government to pay regard to the Treaty (its text and principles) and to act in such a way as to support the courts, and not simply to introduce legislation to overturn due process without very good grounds.18

ince the establishment of the Waitangi Tribunal in 1975, some good progress has been made on addressing past wrongs and settling grievances. It seemed that until this year Waitangi Day protests were becoming less vociferous and 'Honour the Treaty' banners less in evidence. But we have reached a new watershed. If passed in its current form and in the present climate, the Foreshore and Seabed Bill could set back the progress made and bedevil race relations for years, if not decades. People complain about the 'grievance industry', but one sure way to prop it up is to create more cause for grievance.

We cannot, of course, divorce the foreshore and seabed issue from the wider debate that has been stirred up: the place of the Treaty in our national life, the perception by many non-Maori that Maori are especially privileged, the abuses -- real and perceived -- in the way monies from successful Treaty claims have been used, the sense of connection and the 'customary rights' that all New Zealanders feel they have in the foreshore and seabed.

And a year on from the Marlborough Sounds case, we live in a society where the ante has been upped. Some extreme positions have been taken on both sides, and sometimes nonsense spoken by all parties. Amongst it all, there are also voices of moderation and good sense, and reserves of good will.

We have much going for us: a Treaty that at the time of signing represented the most enlightened attempt at providing for a process of colonisation by Britain, and a partnership that sought to bring two peoples together in relative peace and order. In the intervening years there has been much shared life, common enterprises (especially in times of world war) and intermarriage; as well as some very dark spots. In recent years, more vigorous attempts by Governments to honour the Treaty have seen a Maori renaissance that now enables both Maori and non-Maori to stand tall and meet each other more as equals.

hristians have a special gift to bring to the issues. We have a gospel that specifically addresses questions of how to deal with division and effect reconciliation. Our New Testament was forged out of the coming together of different cultures into a new entity. Paul expended much energy on 'the collection for the saints' in Jerusalem, I believe, because he understood how crucial it was to give tangible expression to the unity that Jews and Gentiles were to find in Christ.19

The struggle for the early church was to identify what was important in each culture, and what was required in the way of mutual recognition of each culture. The 'council of Jerusalem'20 depicts the church coming to an accommodation over an issue that had great potential to divide Jewish Christian from Gentile Christian. The agreement reached represented a concession by Jewish Christians that saw them relinquish as a universal requirement the act of circumcision, something that for generations had defined their response to God's grace. At the same time, Gentiles were asked to respect certain Jewish sensitivities, and refrain from behaviour -- commonly accepted in their culture -- that was inimical to their Christian commitment.

In his book bullshit, backlash and bleeding hearts: A confused person's guide to The Great Race Row, David Slack discusses the concept of partnership as it relates to the Treaty and to working out principles based on the Treaty.21 Two things struck me about this discussion. First, partnership is seen as a complex concept to work with because it has to be hedged about with attempts to strike a balance between two sets of competing interests. It can easily be reduced to an almost mathematical equation of 50/50 equality, or a kind of tit-for-tat trade off between competing attitudes and perspectives; an attempt to achieve reasonable power-sharing.

Second, at heart the exercise of partnership depends upon such attitudes as trust, openness, honesty, good faith, solicitude and co-operation. What Paul says in Phil 2.4 becomes pertinent here. "Let each of you look not to your own interests, but to the interests of others." This puts matters on a completely different footing as one attempts to approach an issue from the perspective of the other.

Paul was able to follow this injunction with reference to a powerful exemplar: the self-emptying love of Christ. Elsewhere, Paul writes of "the generous act of our Lord Jesus Christ, that though he was rich, yet for our sakes he became poor, so that by his poverty we might become rich".22 (The context, interestingly, is to do with the Corinthians' support of the collection for the Jerusalem church).

ere, then, is an attitude, a style of life that moves beyond the mere provision of space to let the other pursue its interests, or even a co-operation that works together out of a mutual self-interest. This is a genuine seeking to work for the interests of the other party. All New Zealanders have 'customary interests' in the foreshore and seabed issue. Imagine the difference it would make if Maori and Pakeha were each working to safeguard the interests of the other!

The prerequisite for partnership (or 'co-operation', a term that Slack and some of his sources seem to prefer) is trust. In order to learn to trust one another, we have to know one another. As a South Islander, initially knowing little of Maori culture and ways, my own experience has been one of undertaking a journey of discovery that has enabled me to understand, albeit often poorly, something of Maori perspectives and sensibilities on issues such as the foreshore and seabed. I have been privileged to find myself in situations where interaction with Maori tikanga has occurred in contexts that afforded the opportunity not simply for experiencing, but also reflecting upon and being educated through those experiences.

This is now enriched by a setting within a three-tikanga church where opportunities for knowing others as people, and as brothers and sisters in Christ, includes worship that frequently has elements of immersion in Maori liturgy and kawa. The context where I work at St John's/Trinity Methodist Colleges is somewhat unique in the opportunities that it affords for cross-cultural experience and understanding. In principle, however, with bold initiative and effort, such interaction is not outside the realms of possibility for many faith communities throughout New Zealand.

he road to true partnership is not an easy or straightforward one. The 'tidal waves' that have swept our country this year have set us challenges that can lead to ever stronger relationships between Kiwis of all backgrounds based on the foundation of trying to provide a viable society for two groups, the indigenous people and later arrivals. Or we can retreat to positions that are mistrustful, antagonistic and hostile to the other.

Every Christian has a kinship with other Christians that can transcend differences of race and background without negating them. At its best, the church exists as a community that points to what all human societies could and should be like. It can draw on resources of grace, forgiveness, reconciliation and a style of living that counters and overturns negative and destructive attitudes and ways, and constantly works to cross boundaries.

Can the Christian church realise its potential and provide a beacon for society? That depends upon how we allow our unity in Christ and the call to follow the example of Jesus to express itself in our present situation.

Referecnes

Report on the Crown's Foreshore and Seabed Policy, Wai 1071 Waitangi Tribunal Report 2004, Wellington: Legislation Direct, 2004, or download from www.waitangi-tribunal.govt.nz

For the Bill and Government material see www.beehive.govt.nz

Other resources available from the Ecumenical Coalition for Justice, www.socialjustice.org.nz

At home on the beach

by Linda Papuni

y story is of hot bright summer days on the white sandy beaches around Gisborne, where we played, swam and picnicked; days filled with fun and laughter. Then my Pakeha mother died and my world changed.

My Maori father introduced another way of being on the beach. The beaches we now visited were rocky and we gathered seafood to supplement the family's meagre income. Gone were the sun umbrellas and balls. Sacks and kits for gathering seafood were the norm.

We were taught to observe the proper ways of doing things in the sea. Our behaviour was considered -- there was no yelling or laughter. We went about the collecting of seafood in an orderly and quiet manner. I was always embarrassed to think that Pakeha might be watching me, that people who knew me might see me having to collect food from the beach.

hile for Pakeha 'beach' is lifestyle, for Maori 'beach' in many cases is subsistence living and this is especially so in rural, coast-bound communities where our people's survival depends on gathering food from the beach as we have always done.

Maori and Pakeha live in different worlds. Maori collecting seafood should not have to contend with SUVs and boat-trailers driving up and down beaches contributing to the destruction of our pipi beds and the habitats of other sea creatures.

Today's level of mobility has enabled Pakeha to go to places they would never have considered going prior to the late 1960s. Maori have had to share their beaches without complaint. The putting up of signs and gates should not come as a surprise to people, especially if we consider the erosion of our beaches.

onscious that my Pakeha relations and friends have an interest in the preservation of our sea and landscapes, my hope is that by telling our stories we can find a workable future alongside one another.

Linda worked in the Kinder Library at St John's theological College while she studied as a part time student at Auckland University towards a Bachelor of Theology degree. She has now returned home to Gisborne and plans to complete her degree through Otago University.