Moana Jackson: Seabed deal plainly not fair to Maori

COMMENT

In the weeks leading up to the release of the Crown's foreshore and seabed policy framework, Maori were asked by Government ministers to be patient because the devil would be in the detail. They were right.

The policy framework is complex, presumptive and replete with new concepts devised to find what it calls "effective working relationships" between iwi, hapu and whanau and central and local government.

It is also devilishly deceptive and redefines both the nature of the Treaty of Waitangi relationship and the meaning of the term "due process". In the guise of finding an integrated framework for resolving the issue it disintegrates long-held constructs in international and common law about the rights of indigenous peoples and even infringes basic property protections offered in various human rights instruments such as the United Nations Declaration on Human Rights.

In more prosaic terms, it makes a mockery of the consultation process in which Maori offered numerous positive suggestions for resolution and unanimously rejected the principles upon which the policy framework is now based. Indeed, the devil is not just in the detail of the framework but in its overarching dismissiveness of any notion of good faith.

The issue originally arose when the Court of Appeal decided in June that eight southern iwi could seek a judgment from the Maori Land Court to determine the extent of their customary rights in the foreshore and seabed.

Before the iwi could follow due process, the Government announced it would legislate to block that process and guarantee what had "long been assumed" - that the foreshore and seabed belonged to all New Zealanders.

In a show of unity not seen on a Maori issue since the land confiscations of the 19th century, most other political parties agreed with the Government position and differed only in the intemperate language they used to raise unfounded fears about Maori blocking access to the beaches.

Maori were caught between the devil of public panic induced by misinformation and the deep hurt of once again being misrepresented and having long-held rights diminished. The policy framework will probably calm the panic but will undoubtedly increase the pain and injustice.

There are many layers of deception that need exploring in the framework but space permits consideration of only two: the effective extinguishing of Maori rights by the creation of a new public domain or "people of New Zealand title"; and the redefinition of the treaty relationship in terms of the exercise of tino rangatiratanga.

The framework invents a new concept of Maori "ancestral connection" and suggests that the customary title which flows from such a connection will sit alongside the public domain title. The nature and extent of the connection, and hence the rights, will be determined by a new statutory commission which will have the power to identify who has the mana in a specific area. Its findings will be given to the Maori Land Court which may then issue a customary title.

The Crown argues that this approach will "enhance" Maori interests and protect customary rights. However, there is a deceptive dishonesty in that claim.

At one level it proposes to define the nature of the "ancestral connection" and makes it clear that it will be limited to such matters as a traditional practice of taking hangi stones or the need to protect a burial site.

The expansive notion of ancestral ties to a land, as understood in Maori law and even as outlined in common law, will be restricted to some quaint anthropological practices, and any potential for commercial development (also recognised in international law) will be restricted by a vague linkage to the traditional use.

The right and the people are frozen in time and, while the Government suggests that a share of aquacultural development will be reserved for Maori, the underlying principle of the new connection is that other people may change but Maori will be constrained by whatever the Crown determines the ancient practices to have been.

In an earlier discussion document, the Crown acknowledged that this amounted to an extinguishment but suggested it was only theoretical because the new process was a replacement jurisdiction. That is a fatuous distinction. The extinguishment is very real and creates the unique but gymnastically challenged situation where the customary title will sit alongside the domain title but be subordinate to it at the same time.

At another level, the establishment of the commission effectively removes the ability of Maori to have their rights advocated in court because the new process defines what they are - they become legislative proscriptions rather than justiciable issues.

The right of due process has always been a questionable one for Maori but it has been held up by the Crown as one of the great "citizenship rights" of the treaty that stretches back to the Magna Carta. The policy framework denies that right.

Perhaps most importantly the proposals further entrench the Crown redefinition of tino rangatiratanga as little more than an ability to exercise a quasi-management role in areas which it chooses. That is a fundamental diminution of ancient iwi and hapu authority but is specifically endorsed in the constant policy references to the relationships between Maori and local and central government "decision-makers".

At best Maori will be consulted on foreshore issues but the decisions will be made by others, just as Maori were consulted on the policy but a decision has now been made that ignores what was said.

At the Ngati Kahungunu consultation hui the people were told to be "realistic" but too often that has meant doing what the Crown wants at the expense of the true treaty relationship and even a resolution that might be just.

The MP for Te Tai Tokerau, Dover Samuels, has warned that this is the best and most realistic deal Maori will get, but that does not mean that it is fair or in accord with the treaty. It patently is not.

* Wellington lawyer Moana Jackson presented Ngati Kahungunu's submission on the foreshore and seabed to the Government.