Editorial: discrimination continues in new law

Cecily McNeill2011  It has been a tough few months for democracy as the revised Foreshore and Seabed Act passes into law, making legal discrimination against the first inhabitants of our…

Cecily McNeill

It has been a tough few months for democracy as the revised Foreshore and Seabed Act passes into law, making legal discrimination against the first inhabitants of our land.

Announcing the passing of The Marine and Coastal Area (Takutai Moana) Act on March 24, Attorney-General Christopher Finlayson said that it fixes an anomaly that has ‘vexed us as a nation’ for the past decade.

‘The bill the House has passed this afternoon is a just and durable resolution to the issue, and recognises the rights of all New Zealanders in the common marine and coastal area,’ he said.

‘The Bill ensures the common marine and coastal area cannot be sold off and that all New Zealanders can always enjoy their rights of recreation and access – to walk, swim, fish, sail, dive, surf, picnic or play. It guarantees public access, fishing, navigation, and existing use rights.’

Caritas Aotearoa New Zealand, in consultation with Te Runanga o Te Hahi Katorika ki Aotearoa, the national Maori Catholic advisory council to the New Zealand Catholic Bishops Conference, told the Maori Affairs Select Committee at the end of last year that the new Act ‘maintains the discrimination of the 2004 Act’.

‘It continues to treat Maori ownership of coastal land differently from those who have already been granted private title.’

Catholic social teaching which informs the Church’s submission includes the rights of indigenous peoples, the common good and the stewardship of resources.

The basic contradiction is in the Act replacing Crown ownership with a model that recognises that the common marine and coastal area is one in which all New Zealanders have interests, aside from the small portion which is already privately owned.

This different treatment of Maori claims to ownership ‘is a core reason that two separate United Nations investigations found the 2004 Act to be discriminatory. This was fully acknowledged in both the Ministerial Review panel’s recommendations, and in the consultation document for the 2010 proposals.’

Maori lawyer Moana Jackson has explained in a primer for Ngati Kahungunu (March 7, 2011) that the Act confiscates only areas of the foreshore in which Maori have an interest.

‘It does not affect non-Maori interests and thus creates a space where only the rights of iwi and hapu will be redefined and controlled by the Crown.

It also ‘requires that Maori with interests in the foreshore and seabed must provide public access but does not impose a similar requirement on Pakeha’.

Mr Jackson’s primer says that the [Act] defines Māori customary title that may be claimed in the common space as something less than title exercised by iwi and hapu before 1840, and less than the title that might be held by a Pakeha person with land near the foreshore. The Crown itself has stated ‘several times’ that customary title is a ‘property interest’ but ‘less than a freehold title’.

Caritas submitted that, ‘Since 2003, ownership of the foreshore and seabed has been one of the most difficult issues facing our society. […] ‘We need to find a just resolution [which] cannot occur when the discrimination of the 2004 Act remains intact, as it does with this legislation.’