NZ Herald
  • Home
  • Latest news
  • Herald NOW
  • Video
  • New Zealand
  • Sport
  • World
  • Business
  • Entertainment
  • Podcasts
  • Quizzes
  • Opinion
  • Lifestyle
  • Travel
  • Viva
  • Weather

Subscriptions

  • Herald Premium
  • Viva Premium
  • The Listener
  • BusinessDesk

Sections

  • Latest news
  • New Zealand
    • All New Zealand
    • Crime
    • Politics
    • Education
    • Open Justice
    • Scam Update
  • Herald NOW
  • On The Up
  • World
    • All World
    • Australia
    • Asia
    • UK
    • United States
    • Middle East
    • Europe
    • Pacific
  • Business
    • All Business
    • MarketsSharesCurrencyCommoditiesStock TakesCrypto
    • Markets with Madison
    • Media Insider
    • Business analysis
    • Personal financeKiwiSaverInterest ratesTaxInvestment
    • EconomyInflationGDPOfficial cash rateEmployment
    • Small business
    • Business reportsMood of the BoardroomProject AucklandSustainable business and financeCapital markets reportAgribusiness reportInfrastructure reportDynamic business
    • Deloitte Top 200 Awards
    • CompaniesAged CareAgribusinessAirlinesBanking and financeConstructionEnergyFreight and logisticsHealthcareManufacturingMedia and MarketingRetailTelecommunicationsTourism
  • Opinion
    • All Opinion
    • Analysis
    • Editorials
    • Business analysis
    • Premium opinion
    • Letters to the editor
  • Politics
  • Sport
    • All Sport
    • OlympicsParalympics
    • RugbySuper RugbyNPCAll BlacksBlack FernsRugby sevensSchool rugby
    • CricketBlack CapsWhite Ferns
    • Racing
    • NetballSilver Ferns
    • LeagueWarriorsNRL
    • FootballWellington PhoenixAuckland FCAll WhitesFootball FernsEnglish Premier League
    • GolfNZ Open
    • MotorsportFormula 1
    • Boxing
    • UFC
    • BasketballNBABreakersTall BlacksTall Ferns
    • Tennis
    • Cycling
    • Athletics
    • SailingAmerica's CupSailGP
    • Rowing
  • Lifestyle
    • All Lifestyle
    • Viva - Food, fashion & beauty
    • Society Insider
    • Royals
    • Sex & relationships
    • Food & drinkRecipesRecipe collectionsRestaurant reviewsRestaurant bookings
    • Health & wellbeing
    • Fashion & beauty
    • Pets & animals
    • The Selection - Shop the trendsShop fashionShop beautyShop entertainmentShop giftsShop home & living
    • Milford's Investing Place
  • Entertainment
    • All Entertainment
    • TV
    • MoviesMovie reviews
    • MusicMusic reviews
    • BooksBook reviews
    • Culture
    • ReviewsBook reviewsMovie reviewsMusic reviewsRestaurant reviews
  • Travel
    • All Travel
    • News
    • New ZealandNorthlandAucklandWellingtonCanterburyOtago / QueenstownNelson-TasmanBest NZ beaches
    • International travelAustraliaPacific IslandsEuropeUKUSAAfricaAsia
    • Rail holidays
    • Cruise holidays
    • Ski holidays
    • Luxury travel
    • Adventure travel
  • Kāhu Māori news
  • Environment
    • All Environment
    • Our Green Future
  • Talanoa Pacific news
  • Property
    • All Property
    • Property Insider
    • Interest rates tracker
    • Residential property listings
    • Commercial property listings
  • Health
  • Technology
    • All Technology
    • AI
    • Social media
  • Rural
    • All Rural
    • Dairy farming
    • Sheep & beef farming
    • Horticulture
    • Animal health
    • Rural business
    • Rural life
    • Rural technology
    • Opinion
    • Audio & podcasts
  • Weather forecasts
    • All Weather forecasts
    • Kaitaia
    • Whangārei
    • Dargaville
    • Auckland
    • Thames
    • Tauranga
    • Hamilton
    • Whakatāne
    • Rotorua
    • Tokoroa
    • Te Kuiti
    • Taumaranui
    • Taupō
    • Gisborne
    • New Plymouth
    • Napier
    • Hastings
    • Dannevirke
    • Whanganui
    • Palmerston North
    • Levin
    • Paraparaumu
    • Masterton
    • Wellington
    • Motueka
    • Nelson
    • Blenheim
    • Westport
    • Reefton
    • Kaikōura
    • Greymouth
    • Hokitika
    • Christchurch
    • Ashburton
    • Timaru
    • Wānaka
    • Oamaru
    • Queenstown
    • Dunedin
    • Gore
    • Invercargill
  • Meet the journalists
  • Promotions & competitions
  • OneRoof property listings
  • Driven car news

Puzzles & Quizzes

  • Puzzles
    • All Puzzles
    • Sudoku
    • Code Cracker
    • Crosswords
    • Cryptic crossword
    • Wordsearch
  • Quizzes
    • All Quizzes
    • Morning quiz
    • Afternoon quiz
    • Sports quiz

Regions

  • Northland
    • All Northland
    • Far North
    • Kaitaia
    • Kerikeri
    • Kaikohe
    • Bay of Islands
    • Whangarei
    • Dargaville
    • Kaipara
    • Mangawhai
  • Auckland
  • Waikato
    • All Waikato
    • Hamilton
    • Coromandel & Hauraki
    • Matamata & Piako
    • Cambridge
    • Te Awamutu
    • Tokoroa & South Waikato
    • Taupō & Tūrangi
  • Bay of Plenty
    • All Bay of Plenty
    • Katikati
    • Tauranga
    • Mount Maunganui
    • Pāpāmoa
    • Te Puke
    • Whakatāne
  • Rotorua
  • Hawke's Bay
    • All Hawke's Bay
    • Napier
    • Hastings
    • Havelock North
    • Central Hawke's Bay
    • Wairoa
  • Taranaki
    • All Taranaki
    • Stratford
    • New Plymouth
    • Hāwera
  • Manawatū - Whanganui
    • All Manawatū - Whanganui
    • Whanganui
    • Palmerston North
    • Manawatū
    • Tararua
    • Horowhenua
  • Wellington
    • All Wellington
    • Kapiti
    • Wairarapa
    • Upper Hutt
    • Lower Hutt
  • Nelson & Tasman
    • All Nelson & Tasman
    • Motueka
    • Nelson
    • Tasman
  • Marlborough
  • West Coast
  • Canterbury
    • All Canterbury
    • Kaikōura
    • Christchurch
    • Ashburton
    • Timaru
  • Otago
    • All Otago
    • Oamaru
    • Dunedin
    • Balclutha
    • Alexandra
    • Queenstown
    • Wanaka
  • Southland
    • All Southland
    • Invercargill
    • Gore
    • Stewart Island
  • Gisborne

Media

  • Video
    • All Video
    • NZ news video
    • Herald NOW
    • Business news video
    • Politics news video
    • Sport video
    • World news video
    • Lifestyle video
    • Entertainment video
    • Travel video
    • Markets with Madison
    • Kea Kids news
  • Podcasts
    • All Podcasts
    • The Front Page
    • On the Tiles
    • Ask me Anything
    • The Little Things
  • Cartoons
  • Photo galleries
  • Today's Paper - E-editions
  • Photo sales
  • Classifieds

NZME Network

  • Advertise with NZME
  • OneRoof
  • Driven Car Guide
  • BusinessDesk
  • Newstalk ZB
  • Sunlive
  • ZM
  • The Hits
  • Coast
  • Radio Hauraki
  • The Alternative Commentary Collective
  • Gold
  • Flava
  • iHeart Radio
  • Hokonui
  • Radio Wanaka
  • iHeartCountry New Zealand
  • Restaurant Hub
  • NZME Events

SubscribeSign In
Advertisement
Advertise with NZME.
Home / New Zealand

<I>Colin James:</I> Beneath the upside-down politics of indigenous rights

14 Jul, 2003 06:47 AM5 mins to read

Subscribe to listen

Access to Herald Premium articles require a Premium subscription. Subscribe now to listen.
Already a subscriber?  Sign in here

Listening to articles is free for open-access content—explore other articles or learn more about text-to-speech.
‌
Save

    Share this article

If the Treaty of Waitangi hadn't been around, would we be bothering about the foreshore and seabed? Yes.

This is not a matter driven by the treaty. It is a matter of indigenous rights. Indeed, the very fact that the treaty has become a hot topic over the past 20 years
is at least partly because of a rise to prominence of indigenous rights in former colonial countries, Australia, Canada and the United States among them.

The treaty has been a convenient vehicle for demanding recognition of those rights in this country, especially since it recorded and protected some of those rights in article II, the one that respects tino rangatiratanga of iwi and hapu, including over taonga.

But the treaty has been only part of the story. The foreshore-seabed issue now on the agenda is a claim for recognition of title - customary title - pre-dating and not extinguished by the treaty.

Indeed, some Maori see the treaty as a potential brake on the recognition of indigenous rights.

One: the treaty process set up in the 1980s has focused attention on historical and resources claims, instead of building a relationship in which knotty disputes can be resolved in "partnership" (the word the Appeal Court bequeathed to us) and not in confrontation.

Two: the treaty might limit indigenous rights through its explicit acceptance of the British as cohabitants and governors in article I and its extension of British citizenship to Maori in article III.

Three: to carry legal weight the treaty must first be incorporated in relevant legislation. This has now been widely done, but that is far short of the treaty being enforceable in the courts in its own right.

So some Maori are wary of incorporating the treaty in legislation because that reduces it to a subordinate document - far short of "the founding document of the nation" all parties declared it to be in the late 1980s - and not a compact between two supposed equals.

The same thinking apparently prompted Maori not to seek resource management consents for aquaculture farms in the Marlborough Sounds.

That would concede their indigenous rights were dependent on an act of Parliament (the Resource Management Act) and not derived from customary title - that is, from long custom pre-dating the British arrival and imposition of British rule.

This is not what past generations of non-Maori lawyers thought and present generations of ordinary folk think: that the British assumption (and subsequent enforcement through war) of sovereignty transplanted British custom and common law into this land.

That custom was that the Crown held all the land and individuals' freehold was - and is - in fact tenure from the Crown, even if in perpetuity.

On that assumption the Crown owned the foreshore and the seabed, except where it had granted title to others.

A New Zealand custom has grown up assuming a right of access to and use of the foreshore and sea. (Though this custom has been circumscribed by ports' ownership of some land, by marine farms and by private - mostly non-Maori - ownership of land blocking access to some beaches, lakes and rivers.)

What the Appeal Court did was to turn on its head the assumption about Crown ownership. To do that, it drew on practice and court pronouncements in other ex-colonial countries.

It found that except where the Crown explicitly expropriated land (including the foreshore and the seabed), the residual title lay - and still lies - with indigenous people who could prove customary occupation and use.

Strictly speaking, that was a conservative decision, not the radical decision some have taken it to be. The present Appeal Court is not radical. The radical response now would be legislation imposing Crown title.

What is the ordinary non-Maori to make of this? The historical grievances have been broadly accepted as just. But there is growing unease that claims are proliferating far beyond historical redress and leading to "special" treatment.

Politically, the foreshore-seabed issue is dynamite.

Also important, what are rank-and-file Maori to make of it?

Indigenous Maori society was hierarchical. The reassertion of indigenous practices, reinforced by the law, runs counter to the general spread of democratic practice.

As John Tamihere and Winston Peters, from different perspectives, point out, there is a gulf between those in charge of iwi and hapu, with their professional advisers, and rank-and-file Maori.

Labour's primal instincts are with the rank-and-file - better housing, health, education and jobs, and a place in the sun for all in this once-egalitarian society. In dealings with Maori, however, Labour's practice and political connections have been with the chiefly classes.

That upside-down place is where indigenous rights take Labour. They take National, whose Maori connections are now negligible, to the precise reverse: "a hand up to a job is worth a lot more to those [poor] Maori than putting them on a committee," Bill English said on Saturday.

It is a nice conundrum.

* Email Colin James

Herald feature: Maori issues

Related links

Advertisement
Advertise with NZME.
Advertisement
Advertise with NZME.
Save

    Share this article

Latest from New Zealand

New Zealand

'We love you Jocko': Hundreds pay tribute to Stewart Island hunting accident victim

Christchurch

Glass, metal and plastic found in the stomach of a little blue penguin

Wellington

Crown observer issues warning after Ray Chung’s lewd email, council CEO investigating


Sponsored

Solar bat monitors uncover secrets of Auckland’s night sky

Advertisement
Advertise with NZME.

Recommended for you

Welcome to your new-look Herald website. Tell us what you think.
New Zealand

Welcome to your new-look Herald website. Tell us what you think.

'Pretty unique’: Robertson responds to controversial Springboks tactics
All Blacks

'Pretty unique’: Robertson responds to controversial Springboks tactics

Revealed: ‘Major milestone’ for education system announced by Government 
Politics

Revealed: ‘Major milestone’ for education system announced by Government 

The Good Drop: Warehouse, Salvation Army team up for textile recycling
Northern Advocate

The Good Drop: Warehouse, Salvation Army team up for textile recycling

Watch: Luxon to announce Tāmaki Makaurau byelection date at stand-up
Politics

Watch: Luxon to announce Tāmaki Makaurau byelection date at stand-up

Ex-MasterChef star reveals alcohol addiction
Entertainment

Ex-MasterChef star reveals alcohol addiction



Latest from New Zealand

'We love you Jocko': Hundreds pay tribute to Stewart Island hunting accident victim
New Zealand

'We love you Jocko': Hundreds pay tribute to Stewart Island hunting accident victim

Jock Davies was remembered for his infectious humour, caring nature and great strength.

14 Jul 04:21 AM
Glass, metal and plastic found in the stomach of a little blue penguin
Christchurch

Glass, metal and plastic found in the stomach of a little blue penguin

14 Jul 04:15 AM
Crown observer issues warning after Ray Chung’s lewd email, council CEO investigating
Wellington

Crown observer issues warning after Ray Chung’s lewd email, council CEO investigating

14 Jul 04:11 AM


Solar bat monitors uncover secrets of Auckland’s night sky
Sponsored

Solar bat monitors uncover secrets of Auckland’s night sky

06 Jul 09:47 PM

NZ Herald
  • About NZ Herald
  • Meet the journalists
  • Newsletters
  • Classifieds
  • Help & support
  • Contact us
  • House rules
  • Privacy Policy
  • Terms of use
  • Competition terms & conditions
  • Our use of AI
Subscriber Services
  • NZ Herald e-editions
  • Daily puzzles & quizzes
  • Manage your digital subscription
  • Manage your print subscription
  • Subscribe to the NZ Herald newspaper
  • Subscribe to Herald Premium
  • Gift a subscription
  • Subscriber FAQs
  • Subscription terms & conditions
  • Promotions and subscriber benefits
NZME Network
  • The New Zealand Herald
  • The Northland Age
  • The Northern Advocate
  • Waikato Herald
  • Bay of Plenty Times
  • Rotorua Daily Post
  • Hawke's Bay Today
  • Whanganui Chronicle
  • Viva
  • NZ Listener
  • Newstalk ZB
  • BusinessDesk
  • OneRoof
  • Driven Car Guide
  • iHeart Radio
  • Restaurant Hub
NZME
  • About NZME
  • NZME careers
  • Advertise with NZME
  • Digital self-service advertising
  • Book your classified ad
  • Photo sales
  • NZME Events
  • © Copyright 2025 NZME Publishing Limited
TOP
search by queryly Advanced Search