The wider picture

Marlborough lawyer and historian RON CROSBY documents how the seabed and foreshore issue was sparked and why it needs to be resolved.

In any politically charged situation, it is always difficult to stand back and attempt to see the point of view held, or depth of feeling felt, by those with an opposing stance, particularly if the origins of those opposing views and depths of feeling are shrouded in history. Yet if resolution of the foreshore and seabed issue is to ever be achieved, it is crucial that each side at least attempt to genuinely understand the other.

The extreme positions adopted on both sides of the foreshore and seabed argument are not conducive to achieving the solution that New Zealanders must achieve to ensure the issue does not fester.

History tells us that in other nations far lesser grievances have resulted in escalating actions by both sides that can result in major civil unrest. To allow this issue to fester would prejudice the resolution of Treaty of Waitangi breach grievances, which the Waitangi settlement process is otherwise currently defusing.

That is now occurring in an increasingly significant manner, with former Labour Treaty Negotiations Minister Michael Cullen for a short, intense period advancing the pace of settlements, and a further major impetus being given to the process by the new, energetic Treaty Negotiations Minister Chris Finlayson.

This article is written with the intent of at least informing people of some important historical reasons from the distant past, and more recent events, which demonstrate why Maori with customary interests in Te Tau Ihu (top of the south) feel so strongly about the Foreshore and Seabed legislation.

At the same time, it is also intended to emphasise to Te Tau Ihu Maori the need to be practical in recognising the political reality of the feelings of non-Maori, as reflected in the actions of the government of the day in 2003.

The knee-jerk reaction by Helen Clark's government to the Court of Appeal's decision in 2003, that Maori had the right to take their claims to customary title to the foreshore and seabed to the Maori Land Court, was a clear demonstration of the anxiety among the broader non-Maori population that public use of the foreshore and seabed could be at risk.

Until that time, one of Ms Clark's greatest political strengths was that she had consistently dealt with any major new issue in a carefully deliberative way. Other ministers would often make initial guarded statements on newly breaking public issues, while she and her close advisers sat back without comment and astutely watched the way public sentiment appeared to be moving.

Then some days later, she would announce a course that she was confident would be broadly accepted by the public. The success she had at the polls for many years demonstrated how successful that considered approach was.

However, on the foreshore and seabed issue, probably because of her perception as to where majority public concern lay, the prime minister herself came out straight away after the Court of Appeal decision was announced with a public statement that the Government would immediately pass legislation to defeat the effect of the decision.

Furthermore, she gratuitously announced that would occur with no compensation being considered for Maori, despite such declared intention, meaning the removal of an undeniably lawful right of recourse that the highest Court in New Zealand had just upheld.

When that response caused a major march in protest on Parliament by Maoridom, and many non-Maori, she compounded the error the next year by branding the protesters "haters and wreckers".

Yet on the television news that night, people throughout New Zealand could see in the front rows of the marchers many calm, highly intelligent and widely respected people. Moreover, it was obvious that the march was conducted in a dignified calm, with no arrests.

History now tells us that the outcome of that over-reaction by Ms Clark was the formation of the Maori Party. A major disruption occurred of the apparently unbreakable Maori support of the Labour Party that had lasted for more than six decades.

The timing of Ms Clark's reaction in the Te Tau Ihu area could not have been worse. The claimant iwi, who had been successful in the Court of Appeal, were the Te Tau Ihu iwi, one of which was Ngati Toa. On the very day of the prime minister's announcement, many hundreds of Te Tau Ihu iwi members were gathered at the Ngati Toa marae of Takapuwahia at Porirua as the Waitangi Tribunal sat to consider the evidence of Ngati Toa in support of its claims of gross breaches of the treaty by the Crown.

The location of that marae was at the harbour in Porirua where Governor Grey's troops had stormed ashore on the northern side early one morning in 1846 and, in one of the worst breaches of the treaty, had seized Te Rauparaha, the famous Ngati Toa rangatira. Having kidnapped Te Rauparaha, Grey had then carried him off by navy warship to Auckland, where he was held without trial for many months. To achieve his release in 1847, his people were compelled to give up their customary interests in huge areas of land in Te Tau Ihu.

It needs to be remembered that this gross breach of a formal treaty by the Crown occurred only six years after the Treaty was signed.

That treaty contained a solemn guarantee by the Crown to all Maori of their rights to all their lands, forests and fisheries and other taonga. Yet here was the Crown kidnapping a prominent rangatira in flagrant breach of the treaty it had drafted and signed only six years before, and then profiting from that breach by riding roughshod over its guarantee of Ngati Toa land interests.

The other seven Te Tau Ihu iwi then suffered similar gross Treaty breaches from 1847 until 1860.

The outcome was that within 20 years of the Treaty being signed, despite the Crown guarantee to Maori of their lands, (which comprised all New Zealand, including its foreshore and seabed), the Crown had seized or cajoled Te Tau Ihu Maori into ceding to it all their lands, apart from a very few tiny pockets of remote, valueless land.

Significantly, none of those improper land transactions ceded the foreshore and seabed to the Crown. The documentation of the land transfers from Maori to the Crown did not mention those assets.

However, from 1860 onwards, Maori in Te Tau Ihu were landless and without capital. Before their own eyes, they had to watch their lands, which had been guaranteed to them by the Crown, handed over to Pakeha settlers by Crown grants, either for nothing or for very small sums. The Crown took only 20 years to achieve this outcome by a mixture of threats, direct actions, subterfuge and the misuse of Crown legislative power.

It was to take Ngati Toa and the other seven Te Tau Ihu iwi more than 140 years before their claims for recompense for this cynical Crown behaviour were able to be judicially considered in the Waitangi Tribunal.

Then after 140 years of waiting, the opportunity to be heard finally came in 2003.

Yet in the very week that Ngati Toa was having its claims considered by a tribunal, which could only make recommendations to the Crown, the highest political Crown official in the land, the prime minister, was publicly announcing that yet another lawful right of Te Tau Ihu iwi, just upheld by the nation's highest domestic court, was to be set aside by legislation with no compensation to Maori.

And that occurred against the background of a hearing that very week of the most damning direct evidence of flagrant treaty breach by the Crown's actions in forcibly kidnapping Te Rauparaha, and using his unlawful detention to extort the Te Tau Ihu land interests of Ngati Toa.

The understandable sense of outrage at such an announcement by the prime minister against such a setting had to be experienced to be appreciated. It did not make one proud to be a Pakeha present at Takapuwahia that week.

All that is occurring now, with the recommended repeal of that iniquitous legislation, is to take the scene back to the position before it was passed, and as should have occurred in 2003, to enable a solution to be sought that matches legitimate Maori and public expectations.

For Maori, that will, on the one hand, require a recognition of the political reality that probably because of the Crown's long-standing assumption of ownership of the foreshore and seabed, the broader non-Maori public have for generations come to expect that they have unfettered access to the foreshore and seabed; but, on the other hand, for non-Maori, it will require recognition that the result involves the restriction of the lawful rights of Maori to have access to the courts in respect of their customary rights. In terms of the fundamental concepts of justice, some redress package will need to be negotiated.

The tragedy is that had that been done in 2003, the compensation package could have been resolved without the heated feelings that the passage of the legislation, and now its repeal, have added. The quantum necessary now as redress for the Crown's assumption of title to the foreshore and seabed will have risen significantly as a result.

The process required will not be easy to set up, but a negotiated outcome will remove the sense of justifiable grievance that simply must be peaceably resolved.

That difficult problems can be resolved has been proven in Te Tau Ihu with the settlement process in relation to the lost opportunity for Maori in the aquaculture industry.

That is instructive in that it was the sense of Te Tau Ihu iwi frustration at being apparently locked out by the aquaculture moratorium of an ability to participate in future in the aquaculture industry that led ironically to the Te Tau Ihu first making their claims to the Maori Land Court, which ended up in the Court of Appeal in 2003.

Those aquaculture claims have been the subject of a Crown settlement provision which is coming to fruition as part of the overall package of compensation for Treaty breaches in the Te Tau Ihu area, alongside the settlement of land claims.

In respect of both the land claims and the aquaculture claims, the Crown has now received very clear and powerful reports from the Waitangi Tribunal recommending generous compensation packages for the Crown breaches of the Treaty in those areas.

To be consistent, the Crown must now actively ensure that a similar outcome is achieved in a timely way with the foreshore and seabed issue. That will require a national approach on the means of redress, but so, too, did the aquaculture settlement process.

Ron Crosby appeared as counsel for the Te Tau Ihu iwi Ngati Apa in the Waitangi Tribunal's Te Tau Ihu Inquiry over 3 1/2 years. He is the author of The Musket Wars A History of Inter-Iwi Conflict 1806- 1845 (Reed, 1999) and he contributed Chapter 18, Te Tau Ihu Maori Involvement in Resource Management Act (RMA) Issues, in Whenua Managing Our Resources (edited by M. Kawharu, Reed, 2002). He has appeared in many RMA aquaculture cases for Maori and non-Maori applicants and opponents throughout Marlborough, Tasman Bay and Canterbury.

- The Marlborough Express