Friday, May 17, 2024

Graham Adams: TVNZ hīkoi documentary needs a sequel

20 years on, judges are quietly awarding coastal rights to iwi.

Early this month, an hour-long documentary was released by TVNZ to mark the 20th anniversary of the land-rights march to oppose Helen Clark’s Foreshore and Seabed Act. The account of 2004’s hīkoi from Cape Reinga to Wellington — narrated by Tāmati Rimene-Sprout, who marched as a 10-year-old — is undeniably atmospheric and will certainly be rousing for those who support Māori nationalism.

For others, Hīkoi: Speaking Our Truth will look like the opening salvo in a propaganda campaign to head off attempts by the government to amend the Marine and Coastal Area (Takutai Moana) Act 2011, which repealed Clark’s legislation.

Hīkoi cuts between coverage of the thousands of marchers making their way from Cape Reinga to the capital and interviews with influential activists and politicians — including Hone Harawira, Tame Iti, Ken Mair and Tariana Turia. They were bitterly opposed to the Labour-led government restricting Māori access to the courts after the Court of Appeal ruled in 2003 that iwi had the right to test customary ownership to areas of the foreshore and seabed in the Māori Land Court.

The case that led to the Court of Appeal decision was brought by eight South Island iwi who were pursuing a claim for customary title of the Marlborough foreshore and seabed. If it had succeeded, it could have granted them private title and exclusive access.

The hīkoi marchers were dedicated to the idea that Māori owned the entire foreshore and seabed. Such ownership would, of course, hand iwi immense power — including the right to control access to it as well as staggering financial windfalls from commercial activities, including marine farming and mining. The documentary never spells this out but rather depicts Māori as selfless and spiritual “guardians” of the coast, who were the victims of a massive land confiscation by Clark’s government.

It is never mentioned that her Foreshore and Seabed Act allowed iwi and hapū to apply to the courts for recognition of customary rights in coastal areas where substantially uninterrupted, or continuous, possession and exclusive use from 1840 could be established. A successful claim would allow a form of “guardianship” over a foreshore and seabed reserve.

Without that knowledge, it is impossible to understand National’s very successful — and contentious — “Iwi/Kiwi” billboard advertising campaign for the 2005 general election that portrayed Helen Clark as sympathetic to Māori activists and willing to cede control of the nation’s beaches that would undermine the public’s right to unfettered access.

Nowhere in the documentary is it mentioned that, by New Zealand importing England’s common law, ownership of the foreshore and seabed had long been viewed as having rested with the Crown from 1840. Clark decided to make that explicit in statute.

In fact, a 1963 Court of Appeal case over Ninety Mile Beach had decided that all customary title had been extinguished. In overturning that 40-year-old decision, the 2003 Court of Appeal judgment came as a bombshell in finding that Māori customary rights to the foreshore and seabed persisted until they were explicitly extinguished by law. Which the Foreshore and Seabed Act did.

The documentary — funded by state agency Te Māngai Pāho to the tune of $369,000 — everywhere promotes the view that the land march was indisputably a righteous cause, even though its claims were largely based on a hotly contested interpretation of Article Two of the Treaty of Waitangi.

Towards the end of the programme, it is noted that the Foreshore and Seabed Act was repealed by the Marine and Coastal Area Act — passed by John Key’s National-led government in coalition with the Māori Party in 2011. The only comment Rimene-Sprout makes about the Act — known as MACA — is that it “still fails to deal with the underlying issues: ‘Who owns the foreshore and seabed?’”

It is true that MACA bizarrely asserts that no one, neither the Crown nor Māori, owns it. However, there is no mention that — 20 years after the hīkoi — activist judges are adopting a contentious interpretation of MACA that enables them to readily recognise Customary Marine Title and Protected Customary Rights over specific areas of the coast.

Critics say that process will eventually mean nearly all of New Zealand’s coastline and sea as far out as 12 nautical miles will be subject to a significant degree of Māori control that includes important attributes of ownership. In short, the courts are now effectively fulfilling many of the wishes of 2004’s hīkoi protesters.

For completeness, the documentary’s makers owed its audience some acknowledgment that this judicial process is in train. At the very least, there should have been a postscript stating customary marine title and rights have been recognised so far in areas including the eastern Bay of Plenty, part of Hawkes Bay and the southern Wairarapa — along with the fact that these are only the first of more than 500 applications covering the entire coastline that have been submitted to the High Court and / or directly to the Crown for negotiation.

The vast majority of New Zealanders will have no knowledge of the judgments that have already been delivered, nor of the hundreds of claims waiting in the wings for the attention of the courts or the minister. While individual cases have received some coverage in the legacy media, the reports have been largely technical and legalistic with their implications opaque to most people.

Under MACA, iwi and hapū whose claims are accepted by the courts will have the right to be involved in coastal planning and policy development, including vetoing resource consents in an area from the high-tide mark to as far as 12 nautical miles out to sea. This will affect anyone wanting to set up fish farms, marinas, offshore wind turbines or to build new wharves.

Iwi will also be able to charge commercial operators in their designated area — such as inshore fisheries — a fee. And although the government will continue to own nationalised minerals and resources — gold, silver, uranium and petroleum — other valuable commodities such as rare earth elements will belong to tribal groups to mine or sell.

The court judgments are effectively hidden in plain sight — and no one in the legacy media appears keen to alert the public to their implications. Among them, the question of open access to beaches remains an issue. While free access is generally guaranteed to individuals under MACA, iwi can nevertheless shut off parts of the coastline to the public through provisions for wāhi tapu (areas of spiritual significance).

At the beginning of May, Justice Helen Cull released her judgment recognising the customary title and rights of two hapū in Tokomaru Bay, which lies 90km north of Gisborne. One hapū requested blanket wahi tapu protection for the entire area they were claiming (extending to the Territorial Sea Boundary, 12 nautical miles offshore) as well as specifying 117 “sites of significance” (presumably as a fallback position).

The judge declined to grant wāhi tapu status to the entire area (while admitting that was a possibility under the legislation) and selected 10 sites that “may be capable of being considered wāhi tapu” under the terms of MACA. These included the “home of the kaitiaki Te Kekeno”, who live “at a place called Kopuanui”. Kekeno are seals.

The scope of hapū ambitions for the area is clear. And the legislation allows claimants to later apply to vary their agreement.

Furthermore, the judge noted: “The non-inclusion of wāhi tapu in a [Customary Marine Title] order does not preclude the hapū from seeking recognition and protection of wāhi tapu under the RMA, the Heritage Act or Te Ture Whenua Māori Act. Thus, any sites which do not fall within the common marine and coastal area, or have not met the evidential test for recognition under MACA, may be recognised under the alternative legislative enactments.”

MACA gives Customary Marine Title groups the right to appoint wardens who can “warn a person to leave a wāhi tapu or wāhi tapu area” and take their name, contact details, and date of birth if the warden “has reason to believe [they are] intentionally failing to comply with a prohibition or restriction”. Breaches can attract fines of up to $5000.

Given that members of the public trespassing in a wāhi tapu area may incur criminal penalties, and wāhi tapu conditions may affect the exercise of fishing rights, Justice Cull encouraged the two hapū to more clearly specify the areas they were seeking to be covered by a protection order and the reasons for their requests in advance of “Stage Two of these proceedings”.

A sequel to Hīkoi spelling out the ramifications of the court decisions, and what is at stake for the general public, would undoubtedly create a political storm. As would the fact that judges have ignored the plain meaning of Section 58 of MACA — which the public was assured would severely limit the possibility of granting customary rights by requiring an applicant group to show it had “[held] the specified area in accordance with tikanga; and has, in relation to the specified area, exclusively used and occupied it from 1840 to the present day without substantial interruption”.

Instead, judges have decided that taking the second leg of Section 58 at face value, with its emphasis on exclusivity and continuity since 1840, would be contrary to the overall intent of MACA and inconsistent with Te Tiriti. And they have elevated the importance of tikanga — based on advice from pūkenga (experts in Māori customs), some of whom may have an interest in the outcome of the court action — to open the door wide for customary title and rights.

Unfortunately, the chance of state media agencies like Te Māngai Pāho or NZ on Air funding a documentary that would spell out to the public exactly how activist judges are currently dispensing rights to the foreshore and seabed is vanishingly small.

Graham Adams is an Auckland-based freelance editor, journalist and columnist. This article was originally published by and is published here with kind permission.


Anonymous said...

There is so many underhanded deals being done that most NZer’s are totally unaware of how their rights are slowly but surely being undermined. I resent that my rights as a proud 6th generation NZer are being stripped in order to appease Māori. I would vouch the older generation regard their rights to harvest a feed of fish, while being aware of sustainability, are just as strong as a person claiming a teaspoonful of Māori blood. We need to oppose racial bias.

Martin Hanson said...

Excellent article, Graham. And what's conveniently ignored by Maori activists is that exploitation of mineral and offshore fishing rights depends entirely on science and technology resulting from colonisation. For that reason alone, exploitation of those resources should be shared. For Maori to appropriate all those resources seems to me to be a kind of colonialism in reverse.

Anonymous said...

Stealing the birthright of every New Zealander in plain sight, all aided and abetted by activist judges who are failing to enforce the intent of our parliment's will. It's time the latter acted, and did so swiftly, or there will be an uprising - the likes of which we will have not seen before.

Anonymous said...

Would that Labour could return to the strong, largely fair-minded political leadership it enjoyed under Clark.

Unfortunately, Labour has now partnered up with the far left and an identity-politics-toting judiciary in promoting superior rights for some NZers based on ethnicity. Under Hipkins, Labour shows no sign of changing direction.

Nor does National’s record under Key’s torpid leadership and political expediency get off the hook. Will Luxon’s administration reprise Key’s years of inertia and timorousness in the face of belligerent regressiveness?

Time will tell.


CXH said...

Yet another example of our judges deciding what the law should be, then crying about how Kiwis find them abhorrent.

They either need to be put back in their lane, or we need to make judge's positions electable. Then they would have to take some responsibility for their present arrogance.

Rob said...

Another factor which is generally not mentioned is that the Law of the Sea even in the 1960s was very different than it is today. There was a reason why Radio Hauraki operated 3 miles off the New Zealand coastline, and I also understand that Japan had strong claims for customary fishing rights at international law just past the 3 mile limit in the 1960s. So the idea that Iwi held and have retained exclusive use and occupation since 1840 up to the 12 mile limit under any system of law is farcical.

Anonymous said...

Time to stop comments and take action -

support Muriel Newman's NZCPR campaign - if donations permit, they will take out media adverts ( if not blocked!)
lobby your MP
inform your networks about this.

Anonymous said...

And lets face it Rob, apart from a very disgraceful foray to the Chatham Islands on others' vessels, Maori in pre-colonial times had become essentially land-lubbers, having lost the art of off-shore navigation and certainly building vessels capable of significant offshore travel over the centuries since they arrived.

But give them a whiff of 'something for nothing' and they are in boots (or should it be paddles?) and all. All they are interested in, is securing benefits for themselves at the expense of everyone else. It's a disgrace, and it will end badly because our politicians have messed with things they ought not have and are now loath to correct it.

Anonymous said...

I find this article quite frightening for multiple reasons.
I truly fear for the future in NZ. NZ is crumbling before our eyes.

Anonymous said...

Trout were introduced to lake Taupo by Europeans. A license is required to fish for them. A share of that fee is paid to local iwi.
Churches are maintained by donations collected from the parishoners. Marae are maintained, at least in part, by taxes collected from those same parishoners.
who is the sucker.

MRH said...

I am an older gentleman - it certainly plays a part in Wisdom. Why after all the past decades are we now seemingly so PC that we are avoiding the truth of the past. We all know that Maori were not the first people in NZ, so they are only questionably indigenous, a lot of Kiwis came by boat.
Then what is the history of the first boat arrivals ? What were their
actions? What sort of a start did they give New Zealand. ?
Is it not true that our lives today are not all the more positive from the English Missionaries who worked for the good of the Maori race as a whole?
The English did have a written record of all that they did and the principles recorded. They recorded the mistakes they had made in establishing new colonies in their past, and only wanted to improve to what would work better.
They had to work with a people who had no written past, who were loving in fear while practicing slavery and catabolism, it was a pretty scary foundation.
We all need to measure being PC as a trap, and face reality as it will not just go away, but is the ugly underbelly of love, respect, responsibility togetherness understanding forgivness. and so on. MRH