Fishing for answers on Maori coastal rights

By RUTH BERRY

As wave after wave of frustration and confusion swells around Maori claims to foreshore and seabed and the Government's response, iwi have gathered in Paeroa today in an attempt to navigate a way through.

The Hauraki Maori Trust Board is organising the hui and expects up to 700 people to attend. Regardless of the numbers, there is little doubt about its importance. The Government will be watching nervously.

From a Maori perspective, the Crown's refusal to engage properly with iwi over their interests in the coastal marine environment, historically and today, contravenes their common law and treaty rights.

As a Hauraki spokesman, John McEnteer, says, the Appeal Court decision fundamentally challenges the platform on which the Crown's stance has been based - assumption of ownership giving it the right to determine coastal management regimes.

When within days the Government was promising to legislate to assert Crown ownership of the foreshore and seabed and to protect public access rights, Maori were gutted by the assertion "customary title" would be extinguished and annoyed at the unilateral decision-making.

There was suspicion that the Government was playing on public ignorance and fear. If the sighs in the Beehive were audible, so too were they within Maoridom.

As Marlborough claimant spokesman John Mitchell wearily said: "We have said repeatedly - we have shouted it from the rooftops - that the challenge here is not to the existing rights of the citizens of New Zealand."

The backlash meant that the Government changed course and backed away from talk of extinguishing customary title, which could cover a continuum of entitlements ranging from basic seafood-gathering rights to exclusive ownership.

The contentious "ownership" word was excised, although Deputy Prime Minister Michael Cullen - in charge of a group of ministers and Maori MPs charged with steering the Government through the storm - said the statutory framework being prepared would ensure exclusive freehold titles to foreshore and seabed were not created.

It hasn't been a good look for a Government that prides itself on being decisive and which emphasises the need for good faith in treaty negotiations. Iwi may have been more positive about a legislative rather than a judicial outcome following the ruling, but if the game plan was to change when they were out in front, it had to be with their agreement.

Associate Maori Affairs Minister John Tamihere defended the Government, saying it had to first assure Pakeha their "barbecue on the beach" rights were sacrosanct.

Secrecy surrounds just what the Cullen group is up to, and iwi are concerned it has already prepared a legislative skeleton and will present them with a fait accompli.

The political futures of the Government's Maori MPs could be severely damaged if they confirm suspicions they have become Prime Minister Helen Clark's lapdogs.

Behind the scenes, Cullen's group has been at odds over the issue of consultation. Some believe the Government should be clear about its intentions and not appear to offer room to move.

Others such as Tariana Turia warn the Government has already inflamed the situation and must now be seen to engage in proper negotiations.

Tamihere, whose barbecue focus raised eyebrows in Maoridom, also said Maori MPs had told the Government, "You dealt with mainstream, now you have to deal with us", and warned of a Maori revolt if the "tyranny of the majority" meant the issue was dealt with inadequately. The rights under question were real, he said.

Today's hui will also seek to establish a group of negotiators to encourage the Government into talks. The Maori Council, which met to debate the issue yesterday, and the fisheries commission are other likely players.

The commission has long lobbied governments on their marine policies on behalf of iwi. It has been strong in its criticism, as has the Waitangi Tribunal, of the inadequate protection of Maori treaty rights around foreshore and seabed in the Resource Management Act and customary fishing laws.

The commission has been equally worried about this Government's approach to the development of its Oceans Policy, the Marine Reserves Bill and impending aquaculture legislation.

Central to the commission's argument is the assertion that Maori have internationally recognised and treaty-protected rights as an indigenous people. "Maori rights are a priority - we are not just another interest group," one Oceans Policy submission stated. Iwi claims to foreshore and seabed have been lodged with the Waitangi Tribunal, and others are waiting to be heard or are now being filed in the Maori Land Court pending the Appeal Court's decision.

All iwi claim customary occupancy and use rights, as well as spiritual interests in the the foreshore and seabed but what they want out of the claims and other drivers which are fuelling them differ from bay to bay, hapu to iwi.

The Marlborough case arose out of concerns iwi were being denied access to valuable marine farming tenders in the Sounds. As one observer noted wryly it has been successive Government moves to privatise the marine environment and its bounty - not the other way around - that has led to Maori initiating court cases.

A Waitangi Tribunal report last year slated the Government's handling of the aquaculture space tendering regime. It found the Government had made no attempt to fully investigate the nature and interests of Maori rights in marine farming and made only a limited effort to consult.

It planned to preserve some ability to recognise treaty or customary rights in the future, but given the "gold rush" for limited coastal space, it may all be gone by then, the report said. Reservation of marine space is set to be one outcome of a negotiated and multi-layered settlement that the Government is now investigating.

In Hauraki, economic interests centre around valuable minerals in the seabed. Other possible outcomes are likely to focus on changes to proposed or existing marine-based legislation as, says commission chief executive Robin Hapi, the ruling creates a case for greater weight to be given to iwi management and guardianship interests and rights.

"While the focus is on the foreshore and seabed, this issue has wide implications for Maori. The notion of partnership needs to be thought through."

Maori legal experts believe if left untampered, the ruling and the historical evidence of Maori usage of foreshore and seabed, would enable the Maori Land Court to establish customary title in many areas.

A key part of the debate will address how potential law changes would impact on the breadth of rights the Maori Land Court can award to claimants found to have customary title. But the Government will have to go some way to convince Maori of the merits of supporting a negotiated political solution, rather than a judicial one.

THE SEABED CASE

Q. What is the foreshore and seabed case?

A confederation of eight tribes, Te Tau Ihu a Maui, secured a stunning decision in 1997 when they won the right in the Maori Land Court to have the foreshore and seabed of the Marlborough Sounds declared Maori customary land. They had argued that even if land next to the foreshore had been sold, their customary title to it remained unless it was expressly part of the sale or had been expressly extinguished in law.

The Crown argued that no such claim should be heard in the Maori Land Court because the foreshore and seabed could not be classed as land, and that even if it were, the Crown assumed ownership first through sovereignty and through case law and statute law.

The Crown won in the High Court but the case burst back into headlines three weeks ago when the Court of Appeal ruled that the iwi were entitled to pursue their claim in the Maori Land Court.

The Waitangi Fisheries Commission funded the iwi legal costs to the tune of more than $1 million.

Q. The Government says the Court of Appeal decision is a narrow, technical one relating to jurisdiction. Is that correct?

It is not untrue, but it disguises the significance of the Court of Appeal judgment. The Government seeks to minimise its significance and potential impact. Because the issues are emotionally charged the political stakes are enormous. Behind the unanimous "narrow and technical" decision of the five judges was a clear view that previous law was wrong and that Maori may still hold customary title to the foreshore and seabed if, on a case-by-case basis, iwi could prove a strict legal test and a test of tikanga (custom).

It must be noted that there was no suggestion by the Court of Appeal that the iwi would easily win. Chief Justice Sian Elias says: "I have real reservations about the ability for the appellants to establish that which they claim."

Q: What would happen if the case was allowed to proceed and the Marlborough foreshore and seabed were declared Maori customary land?

That's the $64 million question. It is easier to say what would not happen. The land would not necessarily be converted to freehold land, as has automatically happened in the past. The Native Act 1894 converted tribally-owned Maori land to freehold land and did so until 1993 with the enactment of Te Ture Whenua Maori Act. Under the latter act, however, the Maori Land Court can award land the status of "Maori customary land" - one of six statutes of land - without it having to convert to freehold title.

But what rights an iwi or hapu could exercise over the foreshore and seabed which was declared their customary land is unknown.

The Government doesn't want to run the risk of finding out.

Q. Is it unusual for the Government to override court decisions?

No. It is perfectly valid for Parliament to change the law if a court interprets a law in a way that Parliament had not intended. The problem arises, however, if a court identifies a property right, or in this case, a potential property right. Eliminating that through a law change may be seen as expropriation and therefore warrant compensation.