Joe Hendren

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Sunday, March 13, 2005

UN-CERD finds against Seabed and Foreshore Legislation

The United Nations has dammed the controversial Foreshore and Seabed Act as being discriminatory against Maori. The UN Committee on the Elimination of Racial Discrimination released its decision this weekend, as part of its sixty sixth session, with comment on issues in other countries. I include all comments relevant to New Zealand below (not sure if its the full text of the decision, but its a full text of what they gave the media). The committee found the Foreshore and Seabed Act 2004 discriminated against Maori by extinguishing the possibility of establishing Maori customary title, and by the failure of the legislation to provide a guaranteed right of redress.

Decision on the Situation in New Zealand

In a decision on New Zealand, the Committee noted its review of the compatibility of the New Zealand Foreshore and Seabed Act 2004 with the provisions of the International Convention on the Elimination of All Forms of Racial Discrimination in the light of information received both from the Government of New Zealand and a number of Māori non-governmental organizations and taking into account its General Recommendation No. XXIII on indigenous peoples. The Committee expressed its appreciation at having had the opportunity to engage in a constructive dialogue with the State party and the State party’s written and oral responses to its requests for information related to the legislation, including those submitted on 17 February and 9 March 2005. Bearing in mind the complexity of the issues involved, the legislation appeared to the Committee, on balance, to contain discriminatory aspects against the Māori, in particular in its extinguishment of the possibility of establishing Māori customary title over the foreshore and seabed and its failure to provide a guaranteed right of redress, notwithstanding the State party’s obligations under articles 5 and 6 of the Convention.

The Committee acknowledged with appreciation the State party’s tradition of negotiation with the Māori on all matters concerning them and urged the State party, in a spirit of goodwill and in accordance with the ideals of the Waitangi Treaty, to resume a dialogue with the Māori community with regard to the legislation in order to seek ways of lessening its discriminatory effects, including where necessary through legislative amendment. Moreover, the Committee requested the State party to monitor closely the implementation of the Foreshore and Seabed Act, its impact on the Māori population and the developing state of race relations in New Zealand and to take steps to minimize any negative effects, especially by way of a flexible application of the legislation and by broadening the scope of redress available to the Māori.

On hearing Tariana Turia's comments on the decision on 3 News tonight, I note her call for dialogue closely followed the wording of the decision above.

The sheer rush of the Government to get the bill passed was one of greatest tragedies of the whole debate. Discussion and negotiations between Maori and the Crown could have continued while the issue worked its way through the courts, with the hope a solution could be found by consensus prior to judges having make a further ruling. Instead, Labour overestimated public fears Maori would restrict access to the foreshore, and when it found these fears were politically convenient to getting the bill passed, it fueled those fears when it claimed to have fixed the non-problem.

The deliberations of the UN committee follow a submission by the country's third-largest iwi organisation, Te Runanga a Ngai Tahu to the Permanent Forum on Indigenous Issues last year. It is interesting this action has been led by a South Island iwi organisation, as it has been my impression that support for the Maori party is currently concentrated in the North. If I could indulge in some pure speculation, does this indicate tactical differences in Maoridom on the best way to fight the legislation?

That said, the action was supported by the Treaty Tribes Coalition
which includes Ngati Kahungunu, Ngai Tamanuhiri and Hauraki iwi. Also, Rawiri Taonui of the School of Maori and Indigenous Studies at Canterbury University was very positive about the potential of the Maori party to wrestle the Maori seats off Labour, as she crowned Tariana Turia her Maori politician of the year in February. Taonui's article 'Ups and Downs of the Maori Year' is well worth a read.

As Rawiri Taonui says,
the requirement to prove uninterrupted connection since 1840 is one of the worst features of the Seabed and Foreshore Act, especially as the majority of Maori have lost this connection through colonisation.

I was discussing the F&S issue with some fellow Alliance types at the conference in November. In attempting to explain to someone what was wrong with the S&F bill, and the 'uninterrupted connection' issue in particular, I felt a flash of inspiration as I asked them to imagine a grandfather clock that had been in their family for generations. You identified the clock with the history of your family, yet you lacked a very old receipt or any other proof of ownership. If you were suddenly asked to prove 'uninterrupted connection' or 'uninterrupted possession' of the grandfather clock since 1840, this would be a very difficult thing to do.

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At 10:52 am, Blogger Rich said...

Imagine the following:
"Germany won WW1 and occupied New Zealand, turfing Pakeha farmers off their land to make way for German colonists.

Some years later, Germany was forced out.

Should the pre-1918 settlers get their land back?"

I imagine most right wingers would say yes.

At 7:04 pm, Blogger Joe Hendren said...

I don't see this issue as a dicotomy between upholding private property rights and supporting the Govt bill.
I see it as a fundumental issue about justice.

While the legislation extinguishes Maori rights to pursue a legal claim to parts of the foreshore and seabed it does nothing to extinguish the existing – mainly pakeha – private rights to these areas. It is therefore fundamentally discriminatory.

My concern is largely about process, and how political considerations made the government over react to the Court decision. The UN committee was also alarmed at the haste. As I say above - I hoped a just solution could be negotiated prior to another court having to rule on the matter.

I personally hope this would be based on a 'trusteeship' model that combined Maori collective ownership with the concept of the F&S being kept in the public domain. Emphasis should be on protecting the F&S for future generations, and protecting the F&S from unsustainable development and open sale, whether such 'developments' are proposed by Maori or Pakeha.

Please elicidate further if you don't feel I have understood your point!


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