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GRAHAM ADAMS: TVNZ hikoi 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campaign to head off attempts by the government to amend the Marine and Coastal Area (Takutai Moana) Act 2011, which repealed Clark’s legislation.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 a freelance editor, journalist and columnist. He lives on Auckland’s North Shore. This article was first published at The Platform.

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142件のコメント


Leaving Maori entities to manage Kai Moana is like letting the Fox look after the henhouse. They are the ones plundering the resource for pure profit motives using BS kaitiaki notes to support fictitious celebrations.

The seabead and forshore belongs and to be carefully managed by all of us, period.

いいね!
Lesley
Lesley
5月19日
返信先

The seabed and foreshore belong to no one. The Marine and Coastal Area (Takutai Moana) Act 2011 replaced Crown ownership of the foreshore and seabed with a ‘no ownership’ regime, and restored the right of iwi to seek customary rights and title in court. The act recognised that Māori may have exclusive customary interests in otherwise public areas of the foreshore and seabed.

いいね!

An appropriate sequel to the documentary Hikoi, might be to compare the orderly conduct of the marchers against the riots perpetrated by the anti-vaccine protestors? However, the film will no doubt be an unwelcome reminder to whose who claim automatic Crown ownership of areas which they have neither purchased nor taken by force.


Rightly or wrongly, Maori who were denied permission to establish an aquaculture venture within their Marlborough Sounds rohe, despite consents being dispensed to a variety of Pakeha owned entities, felt hard done by. Submitting the fairness of this situation to legal arbitration and basing their argument on customary entitlement was a logical next step.


Helen Clarke invoked legislation specifically to prevent this notion being tested in Court.…


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The government is not “giving an ethnic group based on ancestry” the right to coastal areas. The government is giving rights to those people who already had rights to make use of coastal resources and which had never been extinguished. Their ethnicity is irrelevant, in science it’s more akin to correlation than causation.

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No it’s time we repealed the TOW Act this consigning this nonsense treaty to the excrement depository in which it belongs. We have long since addressed theft of land and the only one left is still there because the tribal elite are arguing over who gets the hoot. It is all about money. No one should have to pay to go to a beach or out on the water. JK was bulldozed into the repeal of HC’s legislation by greedy people. Everything now is about money. Money the country doesn’t have. Let’s grow up and go forward all together not backwards to the Stone Age or we’ll go well and truly broke

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Should we trample over people’s rights just to save money? Should we prevent the courts from hearing claims because we don’t agree with them? Should we expunge legislation when some people don’t think it benefits everybody? Should we blame greedy people for the actions of an elected government? Yes, of course we should, it’s only fair!

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Time for a new Act that defines a Māori as, “A New Zealand Citizen!” As the Māori began to intermarry with other races of their own free will back in the 18th century, the Government had to introduce the Native Lands Act of 1865 that defined a Maori as, "An Aboriginal Native and shall include all half‑castes and their descendants by Natives".

Since 1865, Maori have continued to intermarry with other races of their own free will and the Government has had to introduced many Acts as their ancestry became further and further diluted until the Electoral Amendment Act 1975 defined a Maori as, "A person of the Maori race and includes any descendant of such a person who elects…

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Are you ignorant or just making this up? “There are NO ( ie ZERO) Maori with 50percent or more Maori blood”. Please provide your evidence for this misinformation.

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Susan is correct. Strangely both NZF and ACT are mute on this matter..

I wonder if they are being intimidated by the threat of unrest.?

It will be sad if that is the case.

Tough words don’t count for anything

The MSM report that the reason for the haemorrhage of NZers to Aus because of the cost of living.

In fact it’s a lose of hope in the future of our once united land.

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返信先

Indeed !!!!!

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