Pacific Institute of Resource Management

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12 July 2004

The Secretary

Fisheries & Other Sea-Related Legislative Committee

Select Committee Office

Parliamentary Buildings

WELLINGTON

SUBMISSION ON THE FORESHORE & SEABED BILL

This submission is presented on behalf of the Pacific Institute of Resource Management. The Institute is an Incorporated Society concerned with environmental and social justice issues. It publishes the "Pacific Ecologist" journal.
The Institute understands the Government’s desire to clarify the general status of and the rights that may exist in the foreshore and seabed. There are no easy answers to these problems of legal definition. The attempt to resolve these issues by vesting ownership of the foreshore and seabed in the Crown and dealing with other rights from this absolute position while apparently expedient, transgresses obligations that arise from the Treaty of Waitangi and international human rights conventions to which New Zealand is a signatory. The Institute therefore opposes the Bill and urges the Government to seek other means of resolution.
The Waitangi Tribunal report on foreshore and seabed policy has found that the policy now couched in the Foreshore and Seabed Bill was in breach of Articles 2 and 3 of the Treaty of Waitangi, without justification for these to be overridden. The Tribunal also found that there was a disregard for the Treaty principles of active protection of Maori interests, equity and options and that there was limitation of the principle of redress. These findings of a statutory body with access to expert counsel and nearly three decades of experience are of themselves sufficient to demand abandonment of the Bill.
Clauses 8 to 10 inclusive of the Bill which effectively remove the present rights to declaration of the status of Maori customary rights transgress international conventions that protect the right of access to and protection of the law and the right to own property and not be deprived of it. The effective expropriation of property rights by this Bill, in applying only to Maori, breaches the right to freedom from racial discrimination. If this Bill were to be enacted in the face of the Waitangi Tribunal’s considered opinion and the manifest disapproval of a large body of Maori, it would unquestionably break the convention that no decision directly related to the rights and interests of indigenous people is to be taken without their informed consent.
The Bill is fundamentally unjust in creating certainty for the Government and third parties at the expense of indigenous title. The benefits arising from declaration of ancestral connection and customary rights in Parts 3 and 4 of the Bill are vague, restricted by other Acts and by limitations on scale, extent and frequency. This is grossly inadequate recompense for the loss of access to property rights. The onus of proving ancestral connection or customary rights is excessive. The proposal that customary rights can only be as defined and limited by the Government is frankly insulting to a Treaty partner.
The Bill ignores not only matters of equity between Treaty partners, but also between different iwi and hapu. Inequity follows from a history of past settlements that have either led to Government acquisition by formal deeds and purchases as opposed to the Bill’s acquisition by declaration, or to cooperative agreements for the management of territory.
The Institute also has concerns regarding Government ownership itself, despite the provisions to prevent alienation. The active participation of the Crown in a globalised market that exploits people and resources makes the sale of foreshore and seabed a distinct possibility either as a commercial imperative or in accordance with international treaty obligations.
Lastly, the Institute believes that the Bill, rather than providing a just and lasting solution will lead to persistent grievances and their attendant legal actions and social disruption. We urge the abandonment of the Bill and, as recommended by the Waitangi tribunal, a reopening of dialogue between the Crown and Maori, aiming for a negotiated agreement that respects the Treaty of Waitangi and international conventions while providing for access and inalienability related to the foreshore and seabed that most New Zealanders would wish. By proceeding with this Bill the Government will miss an opportunity to find amore agreeable and just solution to the foreshore and seabed issue to ensure a peaceful and co-operative future.
The Pacific Institute of Resource Management would welcome the opportunity to make an oral presentation to the Select Committee.

Cliff Mason

For Pacific Institute of Resource Management.

29 July 2004

FORESHORE & SEABED SELECT COMMITTEE HEARING 29/7/04

Additional evidence

The lack of any environmental ethic or philosophy in the government’s foreshore/seabed bill is disturbing. At a basic level this shows lack of appreciation of traditional Maori tikanga relating to marine resources and the marine environment. It’s disturbing also considering the huge problems we humans face these days with severe ecological problems such as climate change, over-fishing, and pollution of natural resources, water, sea, air etc. These matters threaten the survival of societies globally relatively intact later this century and survival of people in the next centuries.

Considering these very serious matters - beneath the gloss and glitter of today’s world - and to help mend the rift growing in Aotearoa/New Zealand over the foreshore and seabed bill, we support infusing any further developments or legislation regarding the foreshore and seabed with concepts - leading to practices - incorporating Maori respect and stewardship of the environment - as held by traditional Maori tikanga.

Protecting the environment

Angeline Greensill expresses these concepts and practices graphically in her article in Pacific Ecologist, double issue 7/8 autumn winter 2004 - pp 55-59. She comments how her iwi “rest and restore and restore degraded places, impose rahui and plant kai. By carrying out these practices we ensure that current generations and those about to be born are provided for and equipped with the knowledge and skills required to carry out their roles as tangata manaaki when we have ceased to physically exist. We allow strangers to drive through our land to the beach to enjoy its healing qualities and to experience a peace often lacking in the urban spaces they normally occupy.” Angeline also refers to her iwi’s repugnance for the local council’s practise of discharging waste-water and storm water into Tangaroa with impunity and comments on how the Kohanga Reo pre-school children have to spend their time continuously cleaning up after people who have no idea how to interact with the moana in a responsible and respectful way. As custodians of the coast Angeline and her people care for the environment in a fundamental way.

Maori traditional tikanga - National Treasure

It is the Institute’s understanding that such care and stewardship for the environment through traditional Maori tikanga is a national treasure, which the government should be fostering, and educating all of our people about.

Maori ecological knowledge - for example customary marine tenure, and many other exercises - are a treasury of wise practices that should be being developed into a moral code with social institutions to maintain them. This is proposed by Jim Williams, Pukenga lecturer in Te Tumu, School of Maori studies, University of Otago - see issue 2 of Pacific Ecologist, winter 2002. He says: “Good conservation, requires more than just knowledge and sound practise.”

Among some of the many wise practices he reports are: “In traditional times, we are told the harvest of most resources focussed on not the larger, but the mid-size individuals. Not only did the first fish caught go back to propitiate takaroa, so did many an oversize species, not actually being sought.”

As Dr Williams says: “In order to survive, human society must maximise all available knowledge, emotionally involve the people and educate new generations in the traditions.”

The Bill is basically racist, so must be rejected. It allows private ownership of foreshore property and sovereignty for those already holding such title - but disallows Maori, who hold communal title to have sovereignty over their land. It is insupportable for the Crown to think it will decide what customary rights are and seek to redefine iwi or hapu according to some corporate model. Education of all the people of Aotearoa is the key to undoing racism, discrimination and lack of respect for the Treaty of Waitangi, and Waitangi Tribunal rulings; and education is the key to lack of respect or knowledge on the need to care for the environment on which we all depend fundamentally to sustain our lives and communities.

Kay Weir

Editor, Pacific Ecologist

Pacific Institute of Resource Management

PO Box 12125

Wellington