In June 2003, The Court of Appeal, New Zealand’s highest court, granted a South Island Maori group permission to make Native title claims for the Marlborough Sounds and seabed. The government’s reaction to the court ruling has caused uproar, since it threatens to prevent any future Maori attempts to gain ownership of their land.
For eight years the Maori fought in court to lay claim to the Marlborough seabed and foreshore. The Court of Appeals ruling meant a significant step in the advancement of their claim. It unanimously decided that the Maori had the right to claim customary title and bring their case before the Maori Land Court.
The government, however, stands in complete disagreement with the Court’s ruling. In response to an outcry from the area’s fishermen, who object to pay for the use of the waterway, the government has promised to enact legislation to block the Maori from making their claim. The proposed law will assert that the Crown owns the seabed and will take away the rights of the Maori to claim customary title, granting them only customary use. The question is whether the Maori should be allowed ownership, or customary title.
The debate centers on what constitutes Maori customary rights. The government denies that it wants to end Maori customary rights, stating that it merely wants to define what these rights are through legislation. In talks about preserving and ending customary rights, however, the definition gets lost. The government’s definition of customary rights does not mirror the Maori definition. For the Maori it means both customary use and title, but for the government it simply reflects customary use. The Maori feel that the proposed legislation is an attempt to extinguish their property rights, and expropriate the land they have a rightful claim to. By giving them access but denying them ownership, the Crown is treating them more as tenants than as the rightful owners.
The government’s definition of customary rights is based on their contention that all land is the property of the Crown. The Crown believes that when they achieved sovereignty, they also acquired property rights. Maori retained traditional property rights until extinguished by law. The current Court of Appeals ruling has challenged the assumption that all land belongs to the Crown. By legislating, the Crown is attempting to reestablish their control over property ownership. The Crown also wants to ensure public access to the foreshore and seashore for all New Zealanders. Their promise to legislate was motivated by the fears of the Marlborough fishermen.
The fishermen’s livelihood is dependent on accessing the waterways, and their actions have demonstrated their determination to have a voice in the proceedings. The fishermen are afraid that they will lose access to the marina and foreshore, into which they have invested millions of dollars to develop. Furthermore, some of the fishermen disagree with the government’s upper-hand tactics. Members of the Marine Farming Association, including the fishermen the government is purporting to be protecting, want to be involved in negotiations with the Maori, rather than trying to use the law against them. The members of the Marine Farming Association have thus decided against appealing to the Privy Council, preferring to conduct an open dialogue. They simply do not want to be excluded from future discussions between the Crown and the Maori, since the case reflects issues of great importance to their livelihood.
On Saturday, July 12, approximately 1000 Maori met in Paeroa for a national hui (traditional gathering) to discuss customary rights of the seabed and foreshore. After the meeting the Maori presented a united front and released the Hauraki Declaration, opposing Crown ownership of the seabed and foreshore, claiming customary ancestral right to the site. The declaration also directed the government to speak with the Maori directly to find a resolution, and admonished the Maori MPs to stand firm and oppose the legislation. The government has been speaking with Maori MPs and other political groups, but has neglected to talk to the Maori themselves. In addition, a Maori group will be formed to negotiate with the government, a group to better represent the varied Maori interests.
The legality of Crown legislation regarding the seabed has been called into question. The government made the decision to legislate without first consulting with the Maori and without offering compensation. Terminating customary title without compensation and the consent of Tangata whenua constitutes a breach of the Treaty of Waitangi and international law. The Maori feel that the government is stealing their land. They spent eight years in court to finally obtain legal titles to their land, only to face threats of losing their property rights. The Malborough seabed case represents a more complicated legal matter than the government realized when they first announced their intent to legislate. The government’s manner of dealing with the situation, legislating away the Maori’s rights without negotiations, has caused much conflict and tension. The eight Maori representatives involved in the Marlborough case have proceeded with their claim, presenting it to the Maori Land Court, despite the government’s current effort to legislate away their claim. The Marlborough seabed and foreshore case has become a precedent. How it is solved will have an effect on all future Maori land claim cases.
