Ka Whawhai Tonu Matou: -The Foreshore and Seabed

One of the many things I love about Ranginui Walker is that the title of his seminal text on Māori development perfectly encapsulates the spirit of Māori throughout Aotearoa / New Zealand.  Ka Whawhai Tonu Matou – A Struggle Without End.  To Māori this is a call to arms, a rallying cry that we will not accept discrimination, racism, and the continued denial of our tino rangatiratanga.

Nowhere has the spirit of Ka Whawhai Tonu Matou been more prevalent over the past decade than in the ongoing debate over the ownership of the foreshore and seabed.  From Ngāti Apa, to the Foreshore and Seabed Act, to the Takutai Moana Act, Māori have continued to assert their ownership rights over the foreshore and seabed.  It has led to the formation of not one, but two new political movements; brought together the Business Roundtable and the Green Party; and seen a National Party demonstrate more (even if only marginally) respect for Māori rights than Labour.

While each piece of legislation was designed to be a lasting solution to the proclaimed uncertainty of the Ngāti Apa decision (a decision which was in fact clear, concise, and narrow in its scope and application), this issue is far from closed.  Speaking in Whangarei last week, Labour party leader David Cunliffe stated that Labour were open to taking a fresh look at the foreshore and seabed legislation if it were elected into Government following the September General Election.

Mr Cunliffe told about 45 people at a kuia and kaumatua hui at Te Renga Paraoa Marae in Whangarei he thought Labour would today admit it was wrong with its foreshore and seabed laws denying court challenges and as the party came back into power it would take a fresh look at the issue.

Hardly encouraging words of course – the current Act already allows for Māori to test their claims for title in the Courts – and there was no concrete commitment to a review, amendment, or repeal of the current legislation.  What it does represent for the parties advocating for Māori rights is an opportunity to test the waters and push for either an improved piece of legislation, or even a complete repeal.  For Labour, it represents an opportunity to atone for one of the largest confiscations of Māori land since the signing of Te Tiriti o Waitangi in 1840.

In fact, the only real impediment to full recognition of Māori rights in the foreshore and seabed is the Labour party.  We know the outcome that both the Māori and Mana parties would prefer, and the Greens have been consistent in their call for the respect and recognition of customary rights.  Even ACT once held a principled position when it argued for the protection of property rights – who ever those rights belonged to.  Will David Cunliffe back his words that Labour “would today admit it was wrong” and take a fresh look at the foreshore and seabed or was it nothing more than telling the base what it wants to hear? What does taking a fresh look mean? Should we expect a coherent and principled policy statement prior to the election or are we going to have to live in hope that a throwaway line at a sparsely attended hui in Whangarei will turn into concrete action?

I’ll even make it easy for them and set out the principles on which we should build a workable regime to manage the foreshore and seabed:

  • A legislative apology for the confiscation of the foreshore and seabed in the Foreshore and Seabed Act;
  • The establishment of a special unit of the Māori Land Court to determine the original owners of foreshore and seabed land not currently in private ownership, and to grant title to a representative body of that whānau, hapū, or iwi;
  • The grant of title to be based solely on the basis of authority and control in the period leading up to 1840;
  • The power to prevent new commercial activity from occurring in the foreshore and seabed – including commercial activities pertaining to Crown minerals;
  • The power to impose a rahui over the area (preferably on confirmation by the Māori Land Court); and
  • Recognition of the rights of recreational activities (including swimming, water sports, and fishing) in the foreshore and seabed, alongside the right of free passage for ships.

This may be nothing more than a wish and a prayer, especially with current polls indicating a third term for the National Government.  For now we may have to live with incremental change – and accept that sometimes the realities of politics means that it is better to take a bad deal than to be forced to live with a terrible deal.

But our struggle does not end.

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