He Paua, He Korowai,Me Nga Waahi TapuHe Paua, He Korowai,
Internationally recognized conservation protected areas now constitute 12 percent of the Earth’s total land mass and two percent of the oceans, but many, if not most, have been gained through a colonial process contrary to the basic principles of democracy. Many of the world’s protected areas were taken from indigenous peoples during the time of colonization without their consent, often at the cost of their very lives.
The concept of declaring an area as "protected" is indeed a noble one. However, it is unfortunate that such an honorable objective has been built on a largely dishonorable past. The time is long overdue for indigenous peoples and those engaged in the protected areas regime to renegotiate many of these areas—this time in an open and transparent manner, with the active participation and consent of indigenous communities. The experiences of the Maori, the indigenous peoples of Aotearoa New Zealand, highlight the issues associated with the concept and implementation framework of protected areas.
“He Paua, He Korowai Me Nga Waahi Tapu,” liberally translated means “a shellfish, a woven cloak, and a carved meeting house.”[1] Each of these things individually, and all of them combined collectively, are indicators of the well-being of Maori people, culture, and the state of our environment. My vision for my descendants is that they will be able to continue to gather paua from the sea, have the knowledge and natural resources to weave a korowai traditional cloak from native plants and feathers of native birds, and respect and preserve waahi tapu, or sacred places such as burial grounds. On any issue, I ultimately measure the impact that policies or laws have on the realization of this vision.
Protected Areas Maintain Indigenous Traditions
There are many reasons why specific places in a community, country, region, and the world need and deserve to be accorded a special status. This status might be because of an important historical association, or because they are sanctuaries of unique biodiversity, or of geographical, cultural, and sacred significance. During the height of the violence of the colonization experience, some areas were wrongfully taken without the consent of indigenous peoples and declared protected areas. Post-colonization however, there seems to have been little movement in compensating and returning such lands to the peoples concerned even when due processes have been followed to validate that the taking was indeed wrongful.
A case in point is the more than 1,000 outstanding claims brought by Maori against the New Zealand government to the Treaty of Waitangi Tribunal. The tribunal was established under the Treaty of Waitangi Tribunal Act of 1975 to examine any claim by Maori that they have been prejudiced since 1840 by laws and regulations or by acts, omissions, policies, or practices of the government, or “the Crown,” which are inconsistent with the principles of the Treaty of Waitangi. The tribunal enunciates six Principles of the Treaty that should guide Maori and New Zealand government actions:
• The principle of partnership
• The principle of the exchange of the right to make laws for the protection of Maori interests
• The principle of active protection of Maori interests
• The principle of consultation
• The principle of options
The scale of land alienation experienced by Maori was comprehensive and rapid. In less than 60 years after the 1840 Treaty of Waitangi was signed, Maori land had been reduced from 100 percent to less than six percent. The majority of treaty claims made by Maori deal in whole or part with the “conservation estate,” lands now owned and administered by the Department of Conservation. The conservation estate constitutes one third of New Zealand’s land mass. By today’s standards, it is doubtful that the acquisition of 80 percent of the current conservation estate would meet any of the legal standards of fair and just process.
Settlements of treaty claims are negotiated through a “formula” of a formal apology by the Crown, commercial and financial redress, and cultural redress. By and large, the conservation estate is locked out of consideration for commercial and financial redress, in that conservation lands—even those acknowledged to have been wrongfully taken—are not included in the Crown's restitution package of returned lands or opportunities for commercial development. This includes even the offering of exclusive licenses to tribes for commercial operations (such as tourism) on conservation lands within their traditional territories. Commercial and financial redress is a combination of the return of Crown-owned land and cash payments.
There have been only 14 settlements regarding the conservation estate. Redress instruments have varied, from re-vesting title of a sacred site (the handing of Mt. Hikurangi back to the Ngati Porou tribal authority), to allowing access to traditional food-gathering sites (in the case of the Ngai Tahu Claims Settlement Act of 1998), to drawing up deeds of recognition formalizing the involvement of a tribe in the future conservation management of sites of significance (in the case of the Te Uri o Hau Claims Settlement Act of 2002), to returning areas of significance with the condition that they are subject to covenants protecting natural values and continued public access (as in the case of the Ngati Mutunga Heads of Agreement of 1999).
None of these settlements involve the actual whole return of conservation lands to rightful indigenous “owners” for their unrestricted use. Acknowledging these developments presents the first steps in the way forward, although it is difficult to see such an approach as being sustainable over time. Eventually, the lands will need to be returned for tribes to fully manage. Negotiations over the conservation estate are the most problematic and contentious aspects of treaty settlements. Several iwi (tribes) have walked away from a settlement because of this issue.
Crown’s Apology to Ngati Awa
Ngati Awa is a tribe of approximately 11,000 members. It is part of the Mataatua Confederation from the Bay of Plenty region of the North Island. In 2003, Ngati Awa signed a Deed of Settlement with the Crown, a landmark in a multi-generational quest spanning 130 years of seeking redress, justice, and compensation for the wrongful confiscation of the majority of their traditional lands.
In the Deed of Settlement, the Crown acknowledged that the ancestral lands and resources alienated from Ngati Awa had made a significant contribution to the wealth and development of the nation while Ngati Awa had been alienated from and deprived of the benefits of those lands and resources. The Crown also acknowledged that this loss of control over land prejudiced Ngati Awa and hindered its economic, social, and cultural development and impeded the ability of Ngati Awa to exercise control over its taonga (treasured things) and waahi tapu and maintain and foster spiritual connections with those ancestral lands. As such, the Crown formally apologized to Ngati Awa in its November 2002 Settlement Offer to Ngati Awa:[2]
• The Crown recognizes the efforts and struggles of the ancestors of Ngati Awa in pursuit of their claims for redress, justice and compensation against the Crown over 130 years, and hereby makes this apology to them, their descendants and nga uri o nga hapu o Ngati Awa whanui [all of Ngati Awa]
• The Crown profoundly regrets and apologises unreservedly for the breaches of the Treaty of Waitangi and its principles …
• The Crown profoundly regrets and unreservedly apologises for the confiscation of Ngati Awa lands which was unconscionable.
• The Crown profoundly regrets and unreservedly apologises for the cumulative effect of its action over the generations which has left Ngati Awa virtually landless, and which has undermined the social and traditional structures and autonomy of Ngati Awa hapu.
• The Crown profoundly regrets and unreservedly apologises for the destructive impact and demoralizing effects of its actions which have caused significant damage to the welfare, economy and development of Ngati Awa as an iwi.
• Accordingly with this apology [the Crown] seeks to atone for these wrongs and begin the process of healing and looks forward to building a relationship of mutual trust and cooperation with Ngati Awa.
The Crown’s cultural redress offer includes allowing Ngati Awa regular access to traditional food-gathering areas, acknowledgement of a list of waahi tapu burial grounds on Crown-owned land, and a range of joint management mechanisms for a number of reserves. Public access to the reserves is to be maintained. This outcome is still a long way from what Ngati Awa actually wanted—land returned for land taken and restitution of waahi tapu.
Many quarters of the New Zealand public are scathing about treaty settlements. They believe that tribes are getting “too much.” Those opposed to the returning of conservation lands for treaty settlements argue that national interest in conservation should override any interest Maori might have in an area, irrespective of Maori legal rights. But the 1993 Mataatua Declaration on the Cultural & Intellectual Property Rights of Indigenous Peoples states that the restitution of indigenous lands and resources is critical to the cultural survival of indigenous peoples, cultures, languages, and traditions. Is not the survival and well-being of a people as much a matter of national interest as the well-being of flora and fauna? It is quite unacceptable for waahi tapu to be locked into a conservation estate unless it is with the full consent of the indigenous peoples concerned. Indigenous analysis of the protected areas regime often refers to the conservation ideology of nature without people, which in itself creates an either/or response to the protection of vulnerable sites and species. But in a just society, it is not necessary to prioritize one over the other—the two can actually progress simultaneously, people and nature living side by side. In a world of ever-growing human population and increased numbers of threatened species, carving out a protected areas regime on the basis of removing people becomes less sustainable over time.
It is also debatable that a government department is the most appropriate to manage all protected areas to the exclusion of others. Many lands and resources are ignored and left unmaintained because of the financial and political pressures government departments often face to transfer management to the private sector, or enable access for bioprospecting. Ultimately, it is in everyone’s interest to develop better protocols for management of resources by communities living inside protected areas.
Project Kaitiakitanga
Kaitiakitanga is an initiative developed by Maori primary schoolchildren living in the Whirinaki Forest in partnership with the Department of Conservation and many others. The following description is taken directly from the project’s Web site (www.kaitiakitanga.net):
We the children at Te Whaiti Nui-a-Toi school are the future Kaitiaki (guardians) of the Whirinaki Forest. With our Ngati Whare community we are doing some radical things to ensure that the forest and our culture is preserved and shared with all future children. Our Vision of Well-being: Our grandchildren will cherish Whirinaki Forest and the culture of its people; thanking us for preserving its richness and diversity for them to share with their grandchildren and all future peoples”
Kaitiakitanga is a different world view. One where we do not own the earth (or the plot of land we have title to) to exploit as we wish, but rather a recognition that we and all life are created from Papatuanuku (Mother Earth) and temporarily supported by it in a very interdependent way. Our role is to be guardians of our world; to pass it on to the next generations in a state better than we found it - just like when we pass the batten in a relay race, only this time there is much more to lose if we drop it.
Initiatives such as Project Kaitiakitanga present a better way forward—the voluntary involvement of local Maori, the community, school, children, and other volunteers making it a cultural standard to ensure the forest is properly maintained. In such a scheme, Maori can access under agreed protocols cultural food resources, as well as precious materials essential for carving and weaving and transmission of cultural knowledge and practices, under agreed protocols. The next step would be to would be to transfer the management and title back to the Maori communities concerned. This step seems create the biggest problem.
Customary Rights to the Sea
In June 2003 the New Zealand Court of Appeals, in its judgment in the Marlborough Sounds foreshore and seabed case, decided that the Maori Land Court had jurisdiction to consider Maori claims based on customary rights in the foreshore and seabed. The announcement of this decision resulted in mass hysteria from surprising quarters of New Zealand society. The opposition party launched a national Web site proclaiming that New Zealand beaches “belong to everyone,” denouncing any contemplation of a Maori customary right to the foreshore and seabed and leaping to the conclusion that recognition of a customary right would automatically mean Maori would prevent public access. In its prime, the Web site (www.beachesforall.co.nz) drew opinion from the dregs of society—those who cast judgment without being fully informed of the facts, and used the issue to incite racial hostility toward Maori. “A poll taken since the explosive question of Maori claims to the foreshore became a major public concern showed that 55% of people think race relations are getting worse” reported the National Business Review August 1, 2003.
The New Zealand government naively ventured into the debate by declaring its intention to legislate government ownership of the entire 19,883 kilometers of New Zealand coastline. This announcement drew a not at all surprising reaction from Maori rigorously rejecting such a move. The government embarked on a nationwide consultation with Maori, proposing four principles as the basis of its proposed legislation:
• Principle of certainty. There should be certainty for those who use and administer the foreshore and seabed about the range of rights that are relevant to their actions
• Principle of regulation. Government is responsible for regulating the use of the foreshore and seabed on behalf of all present and future generations
• Principle of access. The foreshore and seabed should be public domain with open access and use for all New Zealanders
• Principle of protection. Processes should exist to enable the customary interests of whanau (families), hapu (sub-tribes), and iwi in the foreshore and seabed to be acknowledged and specific rights be identified and protected
It did not take long for Maori to observe that the acronym for government’s proposed principles of legislation was CRAP. A news headline in the Dominion Post on September 27, 2003, read, “Ten Hui [meetings] later, the answer is still no” summed up the situation—despite hours and hours of talking between Maori and government, Maori objections remained. Since that time, it has been revealed that a third of New Zealand’s coastline is already effectively privately owned while 37.64 percent is owned by the Crown, and only 10.35 percent is in Maori communal ownership. At press time, this issue was still unresolved.
Any extinguishment of customary rights or alienation of traditional indigenous lands in a contemporary context now has legal norms and standards to meet, democratic processes to follow, and institutions to monitor developments. Issues have to be negotiated no matter how difficult, contentious, and intense they may be. Negotiation over the restitution of many traditional territories currently locked in conservation estates must also take place.
A Way Forward
One of the outcomes of the World Conservation Union (IUCN) World Parks Congress held in Durban South Africa in September 2003, was Recommendation 24, which is specific to indigenous peoples and protected areas. The recommendation called to:
• Establish and implement mechanisms to address any historical injustices caused through the establishment of protected areas with special attention given to land and water tenure rights and historical/traditional rights to access natural resources and sacred sites within protected areas
• Establish participatory mechanisms for the restitution of indigenous peoples’ lands, territories, and resources that have been taken over by protected areas without their free, prior, and informed consent, and for providing prompt and fair compensation, agreed upon in a fully transparent and culturally appropriate manner
• Establish a high-level Independent Commission on Truth and Reconciliation on Indigenous Peoples and Protected Areas
• Require protected area managers to actively support indigenous peoples’ initiatives aimed at the revitalization and application, where appropriate, of traditional knowledge and practices in land, water, and resource management within protected areas
• Ensure that protected areas are geared toward poverty alleviation and improve the living standards of communities around and within the parks through effective agreeable benefit-sharing mechanisms.
While I have focused my work on developments involving Maori, the WPC Recommendation 24 indicates that indigenous peoples globally are calling for the same changes in the designation, management, and ownership of protected areas. The legacy issues surrounding many of the existing protected areas must be addressed. The call for the establishment of an Independent Commission on Truth and Reconciliation on Indigenous Peoples and Protected Areas presents a challenge to all of us, but one I believe should be accepted by all parties involved in protected areas.
The Maori experience of the Treaty of Waitangi Tribunal Treaty Claims process can greatly assist in the establishment of this commission, but Maori still have a long way to go ourselves in having our waahi tapu unlocked from the conservation estate, being able to harvest paua for our own usage, and being able to access the plants and native bird feathers necessary to maintain our weaving of korowai.
1. Paua is a species of abalone, a shellfish and prized food resource; korowai is a traditional Maori cloak woven from native flax and native bird feathers, waahi tapu are sites of sacred significance such as burial grounds.
2. Full text of the Ngati Awa Deed of Settlement can be read at www.ngatiawa.iwi.nz.
Aroha Te Pareake Mead is a senior lecturer on Maori business at the Victoria School of Management, Victoria University, Wellington, Aotearoa New Zealand. She is affiliated with the Ngati Awa and Ngati Porou tribes and is the IUCN councillor with special responsibilities for indigenous peoples’ issues.
References and further reading
Federation of Maori Authorities: www.foma.co.nz research report on Maori and the Conservation Estate
Te Runanga O Ngati Awa: www.ngatiawa.iwi.nz full account of the Ngati Awa Treaty Claim and Settlement
Treaty of Waitangi Tribunal: www.waitangi-tribunal.govt.nz information on the Tribunal, claims settled, outstanding and currently in progress
Indigenous Peoples & the Law: www.kennett.co.nz/law/indigenous Maori issues, claims, and court decisions
