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Tariana Turia: New bill reopens door to possibility of justice

Tariana Turia, co-leader of the Maori Party, writes about the foreshore and seabed debates and tides of change.

Tupuna have looked after the foreshore and seabed since time immemorial. Photo / Dean Purcell
Tupuna have looked after the foreshore and seabed since time immemorial. Photo / Dean Purcell

I recall the day the foreshore and seabed hikoi swept up to Parliament's green in May 2004. Wave upon wave of tangata whenua and other New Zealanders arrived bearing their flags and braving the elements to deliver the Labour-led government a message.

Their message was simple: "We don't want your foreshore and seabed law. We want our day in court."

Close to four years ago, my private member's bill to repeal the Foreshore and Seabed Act was pulled from the ballot. Then in November 2008, we helped to form Government, driven by the urgency of addressing what the Prime Minister referred to as the weeping sore of the foreshore legislation.

Yesterday, I stood to lead off the debate in introducing the Marine and Coastal Area (Takutai Moana) Bill.

When we reflect on the angst of these last seven years, since Ngati Apa first asked the Maori Land Court - and later the Court of Appeal - to recognise their interests in the foreshore and seabed in their rohe, it represents a dramatic turning point in our history as a nation.

And yet it had simple roots, sparked by the desire of some Southern iwi to farm mussels as a way to put bread and butter on the tables of their people.

It was a dream denied that led to a fierce legal battle which transcended the country's highest courts and ended up on the ninth floor of the Beehive, where the law was rewritten on who should and should not have mana over the area from the high-water mark out to sea for 12 nautical miles.

And in doing so, our tiny nation provoked scrutiny from an international league of players, including the United Nations Committee on the Elimination of Racial Discrimination (March 2005), causing visits from the UN Special Rapporteur on Indigenous Rights (November 2005 and recently in July).

The new legislation does not come without its share of questions and, frankly, we would expect nothing less. We welcome scrutiny in the interests of moving the nation forward.

If there was one thing the 2004 act did, it was to establish what we needed to do in starting again. The Waitangi Tribunal found the policy of the 2004 act in breach of the Treaty of Waitangi; the UN voiced criticism against the discriminatory effects of the bill and the mandate was laid for a "longer conversation".

And so we trod the tightrope carefully to come up with a way forward.

Our tupuna have lived on, used and looked after the takutai moana in accordance with their customs since time immemorial.

This existence gives their descendants mana tuku iho as tangata whenua and collective property rights, which this bill attempts to translate into western law: therein will lie significant issues in the translation of what that means.

In essence, this bill sets out to take account of the Treaty through recognition of the customary interests of whanau, hapu and iwi in the marine and coastal area. It does this in three ways.

Any customary interests extinguished by the 2004 Act are legally restored by either:

* Explicit recognition of mana tuku iho - a clear statement of tupuna (ancestral) connection to the foreshore and seabed;

* Customary rights - as exercised in accordance with our tikanga - such as the launching of waka;

* Customary marine title - which restores customary interests of iwi and hapu, restores rights including conservation and resource-management rights, protects wahi tapu and sacred areas and enables ownership of non-nationalised minerals and the royalties from these.

Under the new legislation, claims for customary title can only be made by mana whenua. And they must be filed with the High Court within six years of the law being finalised.

There is a lot of debate about what has to be proved in order for claimants to achieve customary title. The bill presumes iwi will still have their mana recognised, even if their adjoining land has been confiscated. That is a good thing, given that the Government unjustly acquired much of that land in the first place through confiscation.

It also presumes that mana whenua maintain customary interests unless the Government proves they have been extinguished. This is a big step - the burden of proof clause - which requires the Crown to demonstrate actual proof that a customary interest has been extinguished.

Only time will tell how all of this will pan out in courtrooms or in direct negotiations with the Government.

We accept that the bill does not settle the entire issue for whanau, hapu and iwi. That is a matter that will have to be left for another time, when there are more Maori MPs in Parliament. Any statistician can tell you that five votes out of 122 do not make a majority.

So now we have a bill that reopens a door that was slammed shut. It opens up a pathway to allow tangata whenua and the Government to negotiate a settlement and, if that does not happen, then to have their day in court.

For most New Zealanders, the world will not be that different. You will still have your right to enjoy the wonders of Tangaroa, to picnic on the sandy beaches during the summer months. In fact, it was never the intention of tangata whenua to take that away from anyone.

The real argument was always one of justice and fairness. For whanau, hapu and iwi, the journey has only begun as they continue to seek to ensure their mana and tikanga is recognised, protected and expressed.

As we head to select committee for public consultation, I encourage members of the public to have their say. When the day comes that Ngati Apa finally get their mussel farm and the mana of tangata whenua is recognised then I will celebrate. For now, we have moved a step forward in these tides of change.

- NZ Herald

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