REFLEXIONES: 14 de Abril de 2016.

In February 2008 the first recognition of territorial customary rights in the foreshore and seabed occurred. The Crown reached a Heads of Agreement with both NgƗti Porou and Te WhƗnau-Ɨ-Apanui. This represents extremely slow progress in recognising customary rights to the foreshore and seabed since the Crown appropriated ownership rights in 2004. To date only three groups (including these two iwi) have entered into negotiations with the Crown, while a further nine have applied for customary rights orders in the MƗ_{ori Land Court.}

The first hearing of a customary rights order application also happened in February 2008, with the hearing of the NgƗ_{ti Pahauwera application in M}ǀ_{haka . The two}

(NgƗ_{ti Porou and Te Wh}Ɨ_nau-Ɨ_{-Apanui) iwi agreements have been a long time in the}

making; the background sections of both of them confirm that negotiations had begun before the enactment of the Foreshore and Seabed Act in November 2004. Both iwi have pointed out in the background section of the agreements that they don’t accept the Crown’s foreshore and seabed policy. Instead the agreements record that the parties “have entered in this Deed to secure the legal expression, protection and recognition of their mana “in relation to their respective foreshore and seabed “but still do not agree with the Act and in particular section 13(1)”which vest legal and beneficial title in the Crown.

Under these agreements the Crown has agreed to acknowledge that the mana moana of both parties “is unbroken, inalienable and enduring; and… is held and exercised…as a collective right”. This acknowledgement by itself has no legal effect, and is no different from the acknowledgement given by the Crown to NgƗti Pahauwera in their first customary rights order application. The acknowledgement is given effect by the Crown “contributing” to the “legal expression, protection and recognition” of that position through eight different instruments outlined in the agreements, namely statutory overlay; environmental covenant; protected customary

activities instrument; wahi tapu instrument; relationship instruments with government departments; fisheries mechanism (new iwi-specific kaimoana regulations); place names changes; and a right to establish pouwhenua.

The statutory overlay, relationship instruments, changes to place names and the right to establish pouwhenua are all available, in substantially similar form, through the historical Treaty settlement process (although historical claims can no longer be lodged). The environmental covenant has the same effect as an iwi management plan under the RMA, while there are already variations in the kaimoana regulations, although not at an iwi level. Likewise the outcomes available under the protected customary activities and wahi tapu instruments are identical available from the MƗ_ori

Land Court in a customary rights order application, although instead of the MƗ_ori

Land Court being the decision maker, the parties must now convince Crown officials, and have no right of appeal.

This raises the question as to why the Crown continues to require the hapnj _{to go to the}

High Court to prove their territorial customary rights when the agreements provide that the Crown itself is satisfied that he hapnj hold territorial customary rights and has agreed to support the applications to the Court. Given that legislation will be needed to give effect to the agreements in any event, there seems to be no reason, other than Crown policy, that would preclude the Crown from deeming in the settlement legislation that the hapnj _{held territorial customary rights. Instead the parties are}

required to expend significant resources in preparing evidence and going to court and thereby risking the settlement for something that does not appear to be in dispute. The unnecessary nature of this litigation is even more poignant when it is considered that legal aid is not available for the applicant hapnj_.

Unless significant tangible benefit is subsequently identified, further negotiations could be hampered, particularly given that the territorial customary rights can only be recognised where iwi own the adjoining land.51

In terms of development for the iwi of Te Tau Ihu post Foreshore and Seabed Act 2004 enactment, although there hasn’t been a claim or application lodged for either a customary rights order via the MƗori Land Court or a territorial customary rights

order via the High Court or through the mechanism of direct negotiation with the Crown, there has been a concentrated effort on reaching a settlement in regard to the Aquaculture Agreement which is currently in draft and due to be finalised in the near future. The Te Tau Ihu Fisheries Forum is the body that has been utilised to progress Aquaculture issues and was originally established for the development of the customary fisheries regulations. The Aquaculture Agreement is in relation to pre 1990 space allocation and has a total monetary value of $96 million, divided between NgƗi Tahu ($2million), Pare Hauraki – Waikato ($20 million) and the iwi of Te Tau Ihu ($74 million). The monetary compensation is due to the lack of available marine space and the Deed of Settlement is the next step in the process. The outcome from this agreement will ensure access to marine space for iwi in Te Tau Ihu, along with the resources to undertake development. 52 From this point customary boundary issues will need to be addressed before any claims or order applications are lodged. The post 1990 arrangements are in relation to the twenty percent allocation of any new water space for aquaculture development. New space can be defined as space that is approved by the local authority, there is a possible 250 hectares and this area is set up in harbours or areas to assist in the boundary debate.53 There are currently conflicting views between Te Tau Ihu iwi, where each has a differing perspective and common ground will need to be established before going forward, at which stage Te Tau Ihu iwi will consider their options in terms of arrangements in regard to the foreshore and seabed under the new legislation.54

CONCLUSION

Customary title is not the same as freehold title. From a MƗori custom perspective, it is not an alienable property right. It is based almost solely on the establishment of ancestral rights of the local MƗ_{ori to a specific shoreline. Those rights cannot be}

transferred. In terms of the foreshore and seabed, MƗ_{ori did not seek a freehold title,}

did not suggest that customary title would necessarily allow them to exclude others, and made it clear that it would not unduly impinge on the rights of others. What they suggested was that not only would they be able to exercise their customary rights but they may be more involved in the management of their foreshore and seabed areas. MƗ_{ori already had some role in resource management on the basis of their ancestral}

relationship with an area. Enhancing local MƗori input in management seemed to provide the most satisfactory way of recognising MƗori customary rights.55

The foreshore and seabed debate has highlighted different interpretations of custom, common law, and entitlement, but rather than simply reflecting uncertainties about meaning within customary MƗ_{ori understandings, it had drawn attention to the}

limitations of British law and the difficulties of transposing customary concepts, including aboriginal title into a legal system based on other principles.56

1

‘Foreshore report guarantees public access’, (2003), in New Zealand Herald, 19 August 2003, pA14- 15

2

M.H.Durie, (2005), Nga Tai Matatu: Tides of MƗ_{ori Endurance, Oxford, Auckland.}

3

www.wikisource.org

4

Durie, (2005)

5

M. Jackson, (2003) ), ‘There are obligations there: a consideration of MƗ_{ori responsibilities and}

obligations in regard to the seabed and foreshore’, in Turanganui a Kiwa Pipiwharauroa, 11:7, p 7-10

6 ibid 7 ibid 8 ibid 9

R. Harris, (2004), ‘Customary rights and the foreshore and seabed debate’, in Resource Management Journal, 12:1, p 8-14.

10

Harris, (2004)

11 _{C. Orange, (1987), The Treaty of Waitangi, Allen and Urwin, Wellington} 12

Orange, (1987)

13

Waitangi Tribunal, (1998b), Report of the Waitangi Tribunal on the Muriwhenua Fishing Claim, Department of Justice, Wellington, p. 36.

14

Waitangi Tribunal, (2004), Report on the Crown’s Foreshore and Seabed Policy: WAI 1071, Legislation Direct, Wellington.

15

A. Frame, P. Meredith, (2003), ‘MƗ_{ori Customary Rights: the Hard Yards’, in Te Matahauariki} Newsletter, (7): 3-5.

16 ibid 17

R. Boast, (2005), Foreshore and Seabed, Lexis Nexis, Wellington.

18

Waitangi Tribunal,(2004), Report on the Crown’s Foreshore and Seabed Policy, WAI 1071, p 19.

19

T. Bennion, M. Birdling, R. Paton, (2004), Making Sense of the Foreshore and Seabed: a special edition of the MƗ_{ori Law Review, Wellington.}

20 ibid. 21 ibid 22 ibid 23

J. Ruru, (2003), ‘Denial of customary rights: seabeds/foreshores’, in Red and Green: the New Zealand Journal of Left Alternatives, 2, p 109-112.

24 ibid 25

“Foreshore and seabed”, (2004), in Te Karaka: The Ngai Tahu Magazine, 24, p 10-13.

26

www.fao.org/fishery/legalframework

27

‘In achieving the purpose of this Act, all persons exercising functions and powers under it, in relation to managing the use, development, and protection of natural and physical resources, shall take into account the principles of the Treaty of Waitangi’

28

‘Nothing in this Act shall permit the Crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi’

29

Massey University, (2007), 150.201 Study Guide, Te Pnj_{tahi a Toi, p 89.}

30

C. I. Magallanes, (2007), ‘Resource and Marine Management Issues’ in MƗ_{ori Property rights and} the Foreshore and Seabed: the Last Frontier, Victoria University Press, Wellington.

31

J. Ruru, (2004), ‘A politically fuelled tsunami: the foreshore/seabed controversy in Aotearoa me Te Wai Pounamu – New Zealand’, in Journal of the Polynesian Society, 113:1, p 57-72.

32

M. Love., (1998), ‘Customary Rights’, in New Zealand Engineering, April, p 34-35.

33 ibid 34

ibid 35

Preliminary decision made by MƗ_{ori Land Court in 1997} 36

G. Lanning, (1998), ‘The battle for control of the coast – MƗ_{ori vs the Crown’, in Property Issues} Journal, November 1998.

37

Durie, M.H., (2005), Nga Tai Matatu: Tides of MƗ_{ori Endurance, Oxford, Auckland.} 38

ibid 39

Waitangi Tribunal, (2004), Report on the Crown’s Foreshore and Seabed Policy: WAI 1071, Legislation Direct Auckland.

40 ibid 41

K. McNeil, (2007), ‘Legal rights and legislative wrongs’ in MƗ_{ori Property Rights and the} Foreshore and Seabed: the last frontier, Victoria University Press, Wellington.

42

Magallanes, (2007)

43 ibid 44

B. Arthur, (2005), Foreshore and Seabed Act, the RMA and Aquaculture, New Zealand Law Society.

45

Explanatory Note, p1.

46

R. Boast, (2005), Foreshore and Seabed, Lexis Nexis, Wellington.

47

NgƗ_{ti Porou ki Hauraki Newsletter, (2007), August - October}

48 _{Magallanes, (2007)} 49 ibid 50 Boast, (2005) 51

G. Powell., (2008), ‘The emperor’s new clothes’ in Mana Magazine, 81, p 34-35.

52 _{Personal Correspondence – Molly Luke, NgƗti RƗrua/NgƗti Toarangatira} 53

Personal Correspondence – Joe Puketapu, Te Atiawa

54

Personal Correspondence – Anaru Wilkie, NgƗ_{ti R}Ɨ_{rua/Te Atiawa} 55

M. Strack, (2004), ‘Time for negotiation with MƗ_{ori over foreshore, seabed issue’, in Otago Daily} Times, 12 August, p 13.

56