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New Zealand Yearbook of New Zealand Jurisprudence |
Last Updated: 12 April 2015
The Use of International Human Rights Fora
to
Protect Maori Property Rights in the Foreshore
and Seabed
and in Minerals
Andrew Erueti.
I. BACKGROUND
This paper considers the impact of the Foreshore and Seabed Bill (the `Bill') on Maori customary property rights in the foreshore and seabed, including minerals, and whether the Bill complies with the Convention on the Elimination of All Forms of Racial Discrimination (TERM and the International Covenant on Civil and Political Rights (`ICCPR'). Both of these international treaties have been ratified by New Zealand.' The Bill, in my view, falls short of the human rights standards set by these treaties in number of important respects. Maori groups at present may seek legal recognition of robust property rights in the foreshore-seabed, including rights to minerals. The Bill however, has the effect of transforming, diminishing and extinguishing those rights to such an extent that Maori are left with rights of little value. The only property right capable of recognition by the Bill is the right to engage in harmless pre-sovereignty traditional activities.
Ordinarily, with ownership of land goes ownership of oil and gas rights. Maori customary rights offshore are not necessarily rights to exclusive private ownership, but still give some footing for a property-based claim to oil and gas rights. The Petroleum Act 1937 and its successors, including the Crown Minerals Act 1991, remove oil and gas rights from private ownership, including Maori ownership, and vest them in the Crown. It has this effect onshore and offshore where ever there is private ownership. A Maori claim to oil and gas rights is weakened by legislation, like that proposed by the Bill, that curtails Maori customary rights to the foreshore and seabed. The Bill if passed will deprive Maori of a claim to sub-seabed mineral rights other than rights to oil and gas and the other substances deemed reserved by the Crown Minerals Act. In relation to oil and gas, it will have a cumulative effect in depriving Maori of potential
Nga Ruahinerangi and Atihau-nui-a-Paparangi; Lecturer in Law, Victoria University of Wellington.
New Zealand ratified CERD on 22 November 1972 with effect from 22 December 1972, New Zealand ratified the ICCPR in March 1979 and the Optional Protocol in August 1989.
native title rights to oil and gas offshore, and is likely to give rise to an additional breach of the principles of the Treaty of Waitangi. Thus the Foreshore and Seabed Bill is of prime importance when considering Maori claims to oil and gas.
If the Bill becomes law without significant change made to address these shortcomings — which is highly likely given the current political environment — New Zealand will be called to account by the United Nations treaty bodies that monitor New Zealand's compliance with these treaties (for CERD there is the CERD Committee for ICCPR there is the Human Rights Committee). This is because New Zealand is required to provide these bodies with periodic reports on New Zealand's compliance with the treaties. Also the Human Rights Committee may consider communications from individuals and groups of individuals claiming to be victims of a violation of the ICCPR, once all local remedies are exhausted.2 But for now New Zealand has not accepted the CERD Committee's right to hear such individual communications.
However, decisions from these treaty bodies are unlikely to come before the Foreshore and Seabed Bill is passed into law — at this stage at the end of 2004. State reports to the CERD Committee are not due until 2005, and reports to the Human Rights Committee until August 2007. And a decision from the Human Rights Committee in response to an individual communication is not likely to come before the end of the year.3 Any criticism from these bodies, then, is likely to come well after the Bill becomes law and at that point there is unlikely to be sufficient support in Parliament to remove discriminatory elements. It is therefore suggested that Maori seek the intervention of the CERD Committee now, under its `early warning procedure' before the Bill is passed into law.4 The CERD
Committee invoked that power when Australia introduced legislation similar to the Foreshore and Seabed Bill in 1998 to extinguish native title interests following the native title decision of The Wik Peoples v The State of Queensland.5
A. The Court of Appeal's Decision in Attorney General v Ngati Apa
Attorney General v Ngati Apa [2003] NZCA 117; [2003] 3 NZLR 643 created a constitutional space for the legal recognition of Maori customary property rights in New Zealand's foreshore-seabed. This was achieved in three principal ways. First, the Court endorsed the orthodox view that Maori customary property rights in land such as the foreshore and seabed continued after the Crown's assertion of sovereignty over New Zealand in 1840 until such time as the rights were lawfully extinguished. Secondly, the Court ruled that no general legislation or common law rule extinguished those rights in the foreshore-seabed, which meant that the Crown had no property rights, or dominium, in the foreshore-seabed, only a notional title, or imperium. Thirdly, the Court found that the Maori Land Court had jurisdiction under the Maori Land Act 1993 to determine the legal status of areas of New Zealand's foreshore-seabed.
That meant that the way was clear for Maori groups to seek recognition of their customary property rights through the Maori Land Court. That involved two distinct steps. First, Maori groups could seek a determination before the Maori Land Court that specific areas of the foreshore and seabed adjacent to their traditional lands had the status of 'Maori customary land', defined in the Maori Land Act 1993 as land held by Maori in accordance with Maori customary values and practices.6 Having obtained such a determination, Maori groups could then apply under the Maori Land Act 1993 for the land to be converted from 'Maori customary land' into 'Maori freehold land'; essentially a common law freehold title.7
It is this possibility of the Maori Land Court granting freehold titles to areas of New Zealand's foreshore-seabed that has created the most controversy. The Maori Land Court has since 1865 (under the Native Lands Act 1865) had jurisdiction to convert tribal customary interests in land into freehold titles as a means of turning these lands into a tradeable
of extinction: Ominayak v Canada UN document CCPR/C/38/D/167/1984, 10 May 1990.
5 (1996) 187 CLR I.
7 See ss 131 and 132 of the Maori Land Act 1993.
commodity. There was never any requirement that these tribal interests equate with a freehold title before they were converted into fee simple —the Lands legislation focussed solely on determining who were the customary owners of the land rather than the nature of their interest in the land. The Maori Land Court was very successful. Almost all land subject to tribal customary title in 1865 was brought before the Maori Land Court and converted into freehold titles by the year 1900. Most of these freehold titles were then sold to settlers and the Crown, often in dubious circum-stances.8 Now, following Ngati Apa, the Maori Land Court can exercise that jurisdiction in relation to New Zealand's foreshore-seabed. Ironically, then, the Maori Land Court — once a principal means by which Maori lost their traditional lands — can be used by tribes to acquire in foreshore-seabed lands the strongest title known to the common law.
This of course does not mean that all Maori groups would succeed before the Maori Land Court. There are obstacles. First, Maori claimants would need to provide evidence to support their claim that an area of foreshore-seabed is 'held by them in accordance with Maori customary values and practices'. That requires a relatively low standard of proof — claimants would not have to show that they have consistently occupied the foreshore-seabed area claimed to the exclusion of all others in the fee simple sense, only that according to their customs they currently 'hold' their foreshore-seabed. Admittedly, what is required is modem evidence of such customary practices and values, that is, they have to be extant today and that would present difficulties for tribes who have long been denied access to their traditional foreshore-seabed lands due to the effects of colonisation, in particular the loss of tribal ownership of coastal lands. But many tribes have maintained access to their foreshore-seabed, especially those who retained their coastal lands.
The second potential hurdle was that judgments in the Ngati Apa decision suggested that it would not always be appropriate for the Maori Land Court to convert Maori customary land to freehold land. The main reason seemed to be that the customary interests that exist today may not amount to the equivalent of a freehold title, particularly given 150 plus years of settlement which meant that customary interests may have diminished through lawful extinguishment or lapsed through lack of use.9 But it is not clear why Maori would need to establish that their interests were akin to, or the same as, a fee simple title; that would be a case of squeezing square
9 See the comments of Gault P in Ngati Apa, para 106.
pegs into round holes. This was never a prerequisite for conversion in the nineteenth century when most traditional lands were converted by the Land Court — in most cases, the customary interests converted to a freehold title were in the nature of disparate usufructary rights. Also, the Maori Land Court could have determined on a case-by-case basis whether customary interests had been extinguished or expired through lack of use. In any case, as was noted by the Waitangi Tribunal in its January 2004 hearing on the Crown's Foreshore and Seabed Policy, the Maori Land Court would have had little difficulty in establishing appropriate threshold tests for determining whether a conversion was appropriate.10 And in the Tribunal's view it was clear that land declared to be Maori customary land would 'at least sometimes' be converted to a freehold title." And of course, the government's Foreshore and Seabed Bill recognises the likelihood of freehold titles resulting from the use of the Maori Land Court's jurisdiction.
In addition to this Maori Land Court jurisdiction, the Ngati Apa findings that Maori customary property rights have not been extinguished by general legislation meant that the Crown could not have dominium in the foreshore-seabed, and that opened the door for Maori to seek a High Court declaration that their foreshore-seabed lands are subject to common law native title.12 Under the doctrine of native title, Maori could have sought a native title entitlement to occupy areas of the foreshore and seabed exclusively. Also, under this doctrine, Maori would not be limited
Waitangi Tribunal, Report on the Crown's Foreshore and Seabed Policy,
Wai 1071, 8 March 2004 at 74.
II Ibid at 75.
12 Maori will also lose the right to seek a common law possessory title in the New Zealand courts (see clause 18 of the Bill). Kent McNeil in Common Law Aboriginal Title (Oxford: Clarendon Press, 1989), argued that modern native title claimants can acquire a fee simple title to lands based on common law real property concepts. The idea runs as follows. The common law of England applied in a settled colony like New Zealand. According to the common law then, as now, possession of land gives rise to a presumptive title, a fee simple estate, that is good against all the world except someone with a better claim. This title held by the original aboriginal inhabitants would defeat an action of ejectment in the courts because in an action for ejectment prior possession carries the day. This idea has not been applied by the common law courts of Australia and Canada. In Mabo v Queensland (No.2)(1992) [1992] HCA 23; 175 CLR 1, Toohey J considered the aboriginal claimants argument that they held such a possessory title to their island. Toohey J was prepared to accept the argument. In his view the Mer Islanders had possession of their island at sovereignty. And the Crown did not have prior possession to defeat the Mer Islanders in an action for ejectment. However, Toohey I decided not to make a decision on the matter because the claimants' counsel had conceded that such a possessory title could be extinguished by the same means as a native title interest, which meant that the end result for the claimants would be the same on native title grounds.
to claiming rights to foreshore-seabed land but could claim native title interests in the water space above the seabed, the foreshore-seabed subsoil, and sub-surface minerals including minerals such as petroleum. Also, a native title claim is likely to have a self-government dimension in that the rights recognised under native title would be regulated according to tribal customary law.I3 But Maori could not claim any native title interests in fisheries as these rights have been supplanted (in the case of traditional fisheries) and extinguished (in the case of commercial fisheries) by the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992.
B. Implications for Maori Claims to Minerals?
The Ngati Apa decision raised a number of important issues for Maori claims to minerals in the foreshore-seabed. The Crown prior to Ngati Apa assumed that it owned all minerals beneath the foreshore-seabed because all precious minerals (petroleum, gold, silver and uranium) are vested in the Crown by the Crown Minerals Act 1991, and the remaining minerals belong to the Crown as owner of the foreshore-seabed under the common law principle of cujus est solum ejus est usque ad coelum et ad inferos (the 'ad inferos' principle), that is, all minerals belong to the land owner from the heavens to the centre of the earth.
But Ngati Apa raises doubt as to whether the Crown can own minerals on either basis. Maori may now claim an interest in minerals in two ways. Maori could claim a native title interest in foreshore-seabed minerals. As noted one advantage of a native title claim is that it is not limited to land but can include resources attached to and beneath land. It seems following the decision in Ngati Apa that any native title interests in precious minerals have not been clearly extinguished by the Crown Minerals Act 1991. The Ngati Apa decisions found that section 7 of the Territorial Sea, Contiguous Zone and Exclusive Economic Zone Act 1977 (which deems the seabed and subsoil 'to be and always to have been vested in the Crown') was not sufficient to extinguish native title in the seabed. That casts doubt on whether section 10 of the Crown Minerals Act 1991 (stating 'all petroleum, gold, silver, and uranium ... shall be the property of the Crown') extinguishes native title interests in these minerals. However, under the doctrine of native title Maori claimants would need to first establish that the content of their native title includes these minerals. There is Canadian Supreme Court authority for the view that
13 See 'The Right to Self-Determination' below.
aboriginal title encompasses minerals like petroleum.14 Australian native title decisions, however, require native title claimants to provide evidence of actual use of any minerals, at the time of the assertion of sovereignty by the Crown, before they can be subject to a native title claim which rules out claims to precious minerals like petroleum.15
In addition, Maori groups could seek a declaration from the Maori Land Court that an area of foreshore-seabed is Maori customary land. If it has that status, the Crown does not have dominium and so cannot own subsurface minerals under the ad inferos rule, though it will own petroleum and other precious minerals under the Crown Minerals Act 1991. Likewise, it is not clear that the Maori customary landowners would acquire these rights — the ad inferos rule relates to fee simple ownership of land — but they certainly would benefit from the ad inferos rule if the land is converted to a Maori freehold title. That would give them ownership of all minerals except those vested in the Crown by the Crown Minerals Act 1991.
C. The Foreshore and Seabed Bill
From the above, it can be seen that the rights available to Maori following the Ngati Apa decision were extensive. The rights might be inchoate, in the sense that they have to be established at law before they could be enjoyed, but nonetheless it is clear that they would have resulted in robust property rights for many Maori groups. The rights capable of recognition under the Foreshore and Seabed Bill, however, fall well short of this.
The Bill was introduced to Parliament on 8 April 2004. It was foreshadowed by two legislative proposals on the foreshore-seabed, released by the government in August and December 2003. The Bill vests full legal and beneficial ownership of the foreshore and seabed (including adjacent waters and the subsoil, bedrock and other matters) in the Crown.16 That will have the effect of extinguishing at law all Maori customary property rights in the foreshore-seabed area. The Bill will therefore alter the current legal position by making the Crown the 'owner' of the foreshore
14 Delgamuukw v British Columbia [1997] 3 SCR 1010.
seabed. In addition, the Maori Land Court will lose its current jurisdiction to convert Maori customary land to Maori freehold land and the High Court will lose its power to consider native title claims to the foreshore-seabed and adjacent resources like petroleum.17 General public access to the foreshore-seabed is guaranteed.'
Having wiped the slate clean, the Bill acknowledges Maori interests in the foreshore-seabed in three main ways. First, the Bill permits the legal recognition through either the Maori Land Court or the High Court of what are called 'customary rights'.19 These are rights to engage in activities that were integral to the culture or customary laws of the claimant group in 1840, remain integral today, and that have continued to be practised since 1840 without substantial interruption. The Bill provides that customary rights holders may derive a commercial benefit from the right (subject to limits as to scale and frequency of use), and that customary rights are to be recognised in decision-making processes on the foreshore-seabed. Also, if a third party seeks consent under the Resource Management Act 1991 for an activity that will have a significant adverse effect on the exercise of the customary rights, the consent may be declined.
Secondly, under the Bill Maori groups may seek an ancestral connection order from the Maori Land Court where they establish an ancestral connection to an area of foreshore-seabed from 1840.20 This ancestral connection order will provide its holders with an opportunity to participate in administrative decisions affecting the foreshore-seabed.
Finally, the Bill will allow Maori groups to claim 'territorial customary rights' to foreshore-seabed land through the High Court.21' Territorial customary rights are described by the Bill as a collection of rights that would have been recognised under the doctrine of native title as granting a group right to exclusive occupation and possession of a particular area of foreshore-seabed.22 If the High Court finds that claimants would have `territorial customary rights' to foreshore-seabed land, it must refer the finding to the Attorney General and to the Minister of Maori Affairs who
12 Ibid clause 9.
19 Ibid clause
6.
19 Ibid clauses 42 and 61.
20 Ibid clause
39.
21 Ibid clause 29.
22 Ibid clause 28.
must then enter discussions with the claimant group to consider the nature and extent of any redress that the Crown may give. 3
D. The Foreshore and Seabed Bill's Shortcomings
It is inconceivable that such a transformation and diminishment of property rights would be imposed upon any other section of the New Zealand community. The proposals abrogate only those property rights that have their source in tribal customary law. No title to the foreshore or seabed that has its source in a Crown grant will be affected,24 nor will rights already allocated under the Resource Management Act 1991, notably the rights of marine farmers to exclusively occupy space in the foreshore-seabed area. In addition, the public are now guaranteed access to the foreshore and seabed.25
The only property rights recognised under the Bill are the customary rights to engage in particular activities that are integral to the customs of the claimant group. The integral to culture test has been adopted from Canadian 'aboriginal rights' jurisprudence.26 It has been criticised widely for its effect of confining the legal recognition of aboriginal rights to those traditional activities practised in the distant past." Moreover, in confining Maori property rights to such pre-sovereignty traditional activities, the Bill allows Maori to engage in only a very limited range of activities since any customary interest in fisheries has been addressed by the 1992 fisheries settlement.28 Once the customary right to fish is removed from the equation, then, in terms of traditional rights, Maori are limited to claiming the right to gather rocks, sand, seaweed, and the right to launch waka from the foreshore, and perhaps the right to protect access to waahi tapu (sites of spiritual significance). And, apart from access to waahi tapu, it is not clear how 'integral' these rights were to Maori tribal life at sovereignty or indeed today. In any case, if these customary rights are established under the Bill, the right claimed may have been extinguished by a range of inconsistent activities listed in the Bill,
23 Ibid clause 33.
24 Ibid clause 4, which excludes these private titles from the
definition of 'public foreshore-seabed' and clause 15, which allows the
Crown to
purchase or otherwise acquire these titles.
25 Ibid clause
6.
26 R v Van der Peet [1996] 2 SCR 507.
28 Treaty of Waitangi (Fisheries Claims) Settlement Act 1992.
including interests granted in the foreshore and seabed by the Resource Management Act 1991, in particular marine farming resource consents.29
In Canada, this strict approach to the recognition of aboriginal rights is ameliorated significantly by the ability of aboriginal claimants to seek `aboriginal title' declarations to their traditional lands, following Delgamuukw v British Columbia.3° This is a robust property right that entitles the holders to occupy their traditional lands exclusively for a variety of activities, both traditional and non-traditional.31 The Bill allows Maori to seek a similar High Court finding of 'territorial customary rights' (as noted, a native title right to exclusive occupation of an area of foreshore-seabed)- but there will be no legal recognition of such a right once proven, only the right to enter into discussions with the government of the day to discuss the possibility of redress for denying recognition. Also, the Bill's standard of proof to establish 'territorial customary rights' seems to be different from and more rigorous than the standard used to establish a Delgamuukw-style 'aboriginal title' in Canada. 'Aboriginal title' claimants in Canada are required to show that they physically occupied the land exclusively (from both an aboriginal and common law perspective) at sovereignty. Importantly, the requirement of exclusivity is concerned solely with the question of whether at sovereignty one aboriginal group occupied the lands to the exclusion of other aboriginal groups.32 Under the Bill, however, to obtain a 'territorial customary rights' finding, it seems that Maori groups will need to establish that they have from 1840 up to the present day occupied areas of the foreshore and seabed to the exclusion of all others, including other Maori groups and non-Maori.33
The diminishing effect of the Bill on Maori property rights can be seen clearly when one considers its impact on non-indigenous interests in the foreshore-seabed area. The recognition of Maori customary property via
29 Clauses 42(2) and 61(2) of the Bill.
30 [1997] 3
SCR 1010.
31 The 'aboriginal title' declaration also gives the holders the right to sub-surface minerals as noted in main text; but the holders may sell their lands to the Crown only, and are subjected to an inherent limitation in that they are not able to use their lands in a manner that is irreconcilable with their traditional attachment to the land; see the judgment of Lamer CJC, ibid at para 125.
the doctrine of native title or the Maori Land Court jurisdiction would, in some cases, have clashed with non-indigenous interests in the foreshore-seabed area, in particular with rights to engage in activities granted under the Resource Management Act 1991 (for example, the activity of marine farming) and with the right of public access. This conflict could have been resolved by a number of means (for example, negotiation between Maori freehold owners and marine farmers and subjecting a Maori freehold title to a right of public access). The approach in the Bill is to remove any potential conflict by first removing the present avenues of redress to the Maori Land Court and High Court, recognising only the customary right to engage in non-intrusive traditional activities, denying legal recognition to proven 'territorial customary rights', and extinguishing 'customary rights' recognised under the Bill where they conflict, or have conflicted with, non-indigenous interests.34 The Bill therefore has the effect of enhancing non-indigenous interests in the foreshore-seabed at the expense of Maori property rights.
Finally, apart from recognition of 'customary rights' under the Bill, there is no clear statement that Maori will receive compensation on just terms for the reduction and extinguishment of their property rights. It is a general principle of the common law that title to property may not be compulsorily acquired without compensation.35 Importantly, in the Privy Council decision McGuire v Hastings District Council,36 Lord Cooke noted the need for compensation to be paid if Maori land is acquired compulsorily by statute in New Zealand. Such an approach to compensation is also supported by the CERD.37
II. RELEVANT INTERNATIONAL HUMAN RIGHTS STANDARDS
The article now considers whether the Foreshore and Seabed Bill is consistent with the international human rights standards set by the Convention on the Elimination of All Forms of Racial Discrimination (`CERD') and the International Covenant on Civil and Political Rights (`ICCPR'). Reference is made to the terms of those treaties and the
34 Clauses 42 and 61 of the Bill.
35
Westminster Bank v Beverley Borough Council [1971] AC 529. The general
approach to the expropriation of private property rights in New Zealand is to
provide compensation and comply with standards
relating to notice, valuation and
rights of objection; see the Public Works Act 1981.
36
[2001] UKPC 43; [2002] 2 NZLR 577. Similar comments about the need for compensation were made
by Lord Cooke in Te Runanga o Muriwhenua Inc v AG [1990] NZCA 7; [1990] 2 NZLR 641
(CA).
37 CERD Committee General Recommendation 23.
decisions and General Comments made by the treaty bodies that monitor compliance with the treaties.
A. Principle of Equality and Racial Non-Discrimination
Non-discrimination, together with equality before the law and equal protection of the law without any discrimination, constitutes a basic and general principle. relating to the protection of human rights. Articles 2 and 5 of CERD guarantee equality before the law and racial non-discrimina-tion.38 In particular, under article 5 of CERD, states undertake to prohibit discrimination and guarantee equality for all in the enjoyment of a broad range of rights and freedoms. The rights and freedoms of most relevance to Maori in relation to the foreshore and seabed include the right to equal participation in cultural activities without discrimination;39 the right to own property alone as well as in association with others;4° and the right to be immune from the arbitrary deprivation of property.41
Under international human rights law, there is recognition that states need to ensure that there is substantive equality for their members, where all groups enjoy human rights in an equal manner, and not merely formal equality, where equal treatment of all under the law can result in some groups not enjoying their human rights to the same extent as others.42 Differences in treatment are therefore permissible in order to achieve substantive equality provided they are justified by the circumstances of a situation, when judged in accordance with the purposes and objectives of the CERD.43 As an example of this, the CERD Committee has recognized that the protection of indigenous identity, culture and property constitutes a legitimate, non-discriminatory differentiation of treatment. In the form of a General Recommendation on Indigenous Peoples, the Committee has called on states to:"
38 See also art 26 of the ICCPR.
w CERD, art
5(e)(vi).
CERD, art 5(d)(v). Other rights and freedoms of relevance are the right to inherit (art 5(d)(vi)); the right to equal treatment before the organs administering justice (art 5(a)); and the right to freedom of religion (art 5(d)(vii)).
42 See G Triggs, Australia's Indigenous Peoples and International Law (1999) 23 Melbourne Univ L Rev 372 at 379-381; and Bayefsky, The Principle of Equality or Non-Discrimination in International Law (1990) 11 Human Rights L 7 1.
44 See CERD General Recommendation 23, on indigenous peoples, adopted August 18, 1997, CERD/C51/ Misc.13/Rev.4 (1997). The CERD Committee, like other human rights treaty-based bodies, has initiated the practice of adopting 'General
The legal recognition of Maori customary property rights, then, is not racially discriminatory, even though only Maori benefit from such recognition.
The CERD Committee has noted how the present dire social circumstances of many indigenous peoples is a direct result of the discriminatory actions of colonial governments:45
The Committee is conscious of the fact that in many regions of the world indigenous peoples have been, and are still being, discriminated against and deprived of their human rights and fundamental freedoms and in particular that they have lost their land and resources to colonists, commercial companies and State enterprises. Consequently, the preserva
Recommendations'. These are of a general nature and refer either to the obligations of states parties arising under a specific provision or issues concerning the implementation of the instrument more generally.
45 See CERD General Recommendation 23, on indigenous peoples, adopted August 18, 1997, CERD/C51/ Misc.13/Rev.4 (1997).
tion of their culture and their historical identity has been and still is jeopardized.
The discriminatory conduct of successive settler governments and courts towards Maori is well documented. Much of the original Maori customary title to land held by Maori passed out of their hands through discriminatory actions, in particular dubious nineteenth-century land sales transactions, the large-scale confiscations of lands following the Land Wars of the 1860s and the work of the Native Land Court. Maori groups have since 1840 continually sought legal recognition of their customary rights in the foreshore-seabed. As noted by the CERD Committee General Recommendation, states are required to return traditional lands to indigenous peoples, and, when that is not possible, promptly provide fair compensation, preferably in the form of lands. The New Zealand government has resolved not to use private or Crown conservation lands to address historical treaty claims including claims that relate to the Crown confiscation of tribal lands. The result is that many tribes are required to settle for cash payments in lieu of land.
With the foreshore and seabed, however, there is land that can be vested in the control of Maori — land that is not owned by the Crown in dominium, and that is already subject to a subsisting Maori customary title, albeit inchoate, in the sense that it must be proved before the courts. Yet rather than take the opportunity and return the control and customary ownership of these lands to Maori communities, the Bill has the effect of diminishing Maori property rights without the guarantee of payment of compensation on just terms. This discriminatory conduct cannot be justified on reasonable grounds. The primary justification for the Bill is the promotion of certainty for government regulation of the various rights and interests in the foreshore-seabed and the guarantee of public access.46 There is no doubt that the Ngati Apa decision created a climate of legal uncertainty. The only way in which the nature and extent of customary interests in the foreshore-seabed could be settled was by judicial investigation by the High Court (under its native title jurisdiction) or the Maori Land Court. And, in the meantime, there would be uncertainty surrounding the right of public access to the foreshore-seabed and interests granted under the Resource Management Act 1991. But, as was noted by the Waitangi Tribunal in its urgent Foreshore-Seabed Report, the uncertainty created by Ngati Apa was not so dire as to require immediate legislative intervention:
46 See the Explanatory Note to the Foreshore and Seabed Bill.
The process of court hearings, appeals, and decisions on the extent of rights would be a slow one, as the Crown argued. The inevitability of appeals from decisions made by the lower courts limits the scope for a radical and expansionist approach to the definition of customary rights. In the meantime, private property rights would not be affected in any significant way. Anyway, change would be gradual. There would be time for the Crown to correct any problems as they arise. There may be some slowing of investment and development, but it will not be excessive or permanent. Incremental court decisions will allow regulatory regimes and private right-holders time to reach accommodations with Maori.
Other common law jurisdictions faced with modern native title claims have not reacted with legislation akin to the Foreshore and Seabed Bill. It is clear that almost all of British Columbia, Canada, is subject to subsisting aboriginal rights, some quite substantial in light of the Delgamuukw ruling that aboriginal title confers a right of exclusive occupation. Governments in Canada have responded by allowing tribal groups to either claim aboriginal rights in court or enter into negotiations to create a treaty to settle their aboriginal claims by consent with compensation. Australia has also opted for the negotiation and litigation of native title claims to land. In introducing this Bill, then, the government would appear to be using a sledgehammer to crack a nut.
B. The Protection of Indigenous Peoples' Rights to Enjoy their Culture
Article 27 of the ICCPR guarantees 'persons belonging to ethnic, religious or linguistic minorities, the right, in community with their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language'. The Human Rights Committee has recognised the importance of article 27 in promoting the revitalisation of indigenous culture by ensuring indigenous peoples have access to their lands and resources. In General Comment 23 adopted in 1994, the Committee noted:48
With regard to the exercise of the cultural rights protected under article 27, the Committee observes that culture manifests itself in many forms, including a particular way of life associated with the use of land resources, especially in the case of indigenous peoples. That right may
48 See General Comment 23 — the rights of minorities, (1994) in Compilation of General
Comments and Recommendations Adopted by Human Rights Committee, HRI/GEN/I/Rev.5, 26 April 2000. Like the CERD Committee, the Human Rights Committee releases general comments to ensure state parties comply with their treaty obligations.
include such traditional activities as fishing or hunting and the right to live in reserves protected by law. The enjoyment of those rights may require positive legal measures of protection and measures to ensure the effective participation of members of minority communities in decisions which affect them.
As a result, indigenous peoples have made frequent use of article 27 to resist encroachments on their traditional lands. In Ominayak v Canada, for example, the Committee decided that Canada had violated article 27 in allowing the provincial government of Alberta to expropriate the Band's territory for the benefit of private logging and mining corporate interests.49 The Committee found that the natural resource development activity compounded historical inequities to 'threaten the way of life and culture of the Lubicon Lake Band, and constitutes a violation of article 27 so long as they continue.'
A number of principles relating to indigenous peoples have emerged from Committee decisions and its General Comments. The Committee has noted that the right to enjoy culture not only protects traditional activities but can also be applied in the use of modern technology;50 article 27 imposes a positive obligation on states to protect the identity of a minority and the rights of its members to enjo?, and develop their culture and language and to practise their religion;5 indigenous peoples must have effective participation in decisions that affect them and their traditional lands;52 and the protection of the traditional rights of an indigenous group may weigh against a state enacting general laws permitting public rights, like general rights to hunt or fish.53
The rights of minorities contained in article 27 may be subject to reasonable regulation and other limitations, provided that these measures have a reasonable and objective justification, are consistent with the other provisions of the ICCPR and do not amount to a denial of the right.54 For
Sec Ominayak v Canada UN document CCPRX/38/D/167/1984, 10 May 1990.
'° See Kitok v Sweden (Comm No 197/1985, 10 August 1988); and
Lansmann v Finland UN document CCPR/C/52/D/511/1992, 8 November
1994.
51
See General Comment 23 — the rights of minorities, (1994) in
Compilation of General Comments and Recommendations Adopted by Human Rights
Committee, HRI/GEN/1/Rev.5, 26 April 2000.
52
See Concluding Observations of the Human Rights Committee: Australia, UN doc A/55/40, 24 July 2000.
53 See Concluding Observations of the Human Rights Committee: Sweden, UN doc CCPR/C/79/Add.58, 9 November 1995, para 18.
example, in Mahuika v New Zealand,55 the only New Zealand communication to the Committee to date that deals specifically with Maori customary property rights, the Committee decided that the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 — a statutory treaty settlement that extinguished Maori commercial and customary rights to fisheries in exchange for a cash settlement, fish quota and the right to customary fisheries via regulations — did not deny the complainants' right to enjoy their culture under article 27. While the Committee acknowledged that the fisheries settlement Act limited the complainants' right to enjoy their tradition of fishing, it considered that the settlement was justified as a fair exchange for the rights held by Maori at common law and under the Treaty of Waitangi:
[M]aori were given access to a great percentage of quota, and thus effective possession of fisheries was returned to them. In regard to commercial fisheries, the effect of the Settlement was that Maori authority and traditional methods of control as recognised in the Treaty were replaced by a new control structure, in an entity in which Maori share not only the role of safeguarding their interests in fisheries but also the effective control. In regard to non-commercial fisheries, the Crown obligations under the Treaty of Waitangi continue, and regulations are made recognising and providing for customary food gathering.
In addition, the Committee was influenced by the fact that there was support for the settlement from the Waitangi Tribunal (albeit qualified), the New Zealand Court of Appeal, and a broad cross-section of Maori following 'a complicated process of consultation'. The same could not be said of the Foreshore and Seabed Bill. It is clear that the rights recognised under the Bill fall well short of the legal rights currently held by Maori. And almost all Maori groups have opposed the foreshore-seabed proposals released in August and December 2003 and the Bill.
C. The Right to Justice and an Effective Remedy
Article 14(1) of the ICCPR guarantees for indigenous peoples the right to access to the courts for the determination of their rights and obligations in a suit at law:
All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.
55 See Mahuika v New Zealand (Comm No 547/1993, 15 November 2000).
In Mahuika v New Zealand it was argued before the Human Rights Committee that the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 violated article 14 of the ICCPR by discontinuing court proceedings commenced by the complainants in relation to their fishing rights and preventing Maori from seeking a determination in the courts as to the nature and extent of their rights at common law and under the Treaty of Waitangi. The majority of the Committee did not consider that article 14(1) was violated since the discontinuance of current court proceedings and the prohibition of Maori court claims concerning the extent of their fisheries were to be addressed by the statutory settlement.56
As noted above, the Foreshore and Seabed Bill does not fully address the claims that Maori would make to the courts to seek recognition of their rights. The only tangible property right offered is the customary right to engage in pre-sovereignty traditional activities.
D. The Right to Self-Determination
The right of indigenous communities to freely determine their political status and freely pursue their economic, social and cultural development is enshrined in the 'right to self-determination' guarantee contained in article 1 of the ICCPR.57 To give full recognition to this right to self-determination, indigenous communities must be provided with the right to manage and control the use of their traditional lands and resources in accordance with their traditional laws and customs. There is increasing recognition of this principle at international law and in domestic aboriginal title law.
The Draft United Nations Declaration on the Rights of Indigenous Peoples records the right of indigenous peoples to the full recognition of their laws, traditions and customs, land-tenure systems and institutions for the development and management of resources.58 Recent decisions of the
57 See also art 1 of the International Covenant on Economic, Social and Cultural Rights.
Inter-American Human Rights Commission and Court on Nicaragua and Belize note the need for member states to allow their indigenous peoples to control their lands according to their unique traditions and customary laws.59
Domestic aboriginal rights jurisprudence in Canada and the USA recognises that, following the assertion of sovereignty, the indigenous inhabitants' right to self government continued albeit in a diminished form. In Campbell v British Columbia (A.G),6° a decision of the Supreme Court of British Columbia, it was argued by opponents of the Nisga'a treaty settlement that law-making powers conferred on the Nisga'a people were a breach of the Canadian Constitution as all legislative powers were exhaustively divided amongst the Parliament of Canada and the provincial legislatures at the time of Confederation in 1867. The Court rejected that argument and accepted that the legal system of the Nisga'a people had survived Confederation and was capable of recognition by the common law as part of aboriginal title. In support of his findings, the judge relied upon the Marshall trilogy of aboriginal title decisions, which recognised that the self-government powers of first nations in the United States had been diminished by the assertion of Crown sovereignty but not extinguished. The judge also noted that several Canadian post-Confederation common law decisions had recognised and applied specific aboriginal customary laws.
A similar approach can be seen in the Australian High Court decision of Mabo v Queensland (No.2)61 which rejected the notion that Australia was terra nullius at sovereignty, and accepted that the native title rights of Australia's indigenous peoples survived British annexation. Brennan CJ noted that:62
Native title has its origin in and is given its content by the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory. The nature and incidents of native title must be ascertained as a matter of fact by reference to those laws and customs.
their customs, traditions, uses and traditional practices, nor shall it
affect any collective community rights over them.'
59
See the Case of the Mayagna (Sumo) Community of Awas Tingni Community v
Nicaragua, Inter-American Court of Human Rights, 31 August 2001, and Case
of Maya Indigenous Communities of the Toledo District v Belize,
Inter-American Commission of Human Rights, 24 October
2003.
50 (2000) 189 DLR (4th) 333.
61
[1992] HCA 23; (1992) 175 CLR 1.
62
See Mabo v Queensland (No.2)(1992) [1992] HCA 23; 175 CLR 1 at 56.
That comment established that the rights and interests protected by native title, the descent groups who can lay claim to them, and the rules relating to succession and transfer of rights, are governed by indigenous customary law. In recent decisions, however, the High Court has adopted a narrow approach to the recognition of customary laws, holding that the common law may only recognise specific rights and interests (e.g., the right to hunt and fish) that have their source in pre-sovereignty indigenous legal_ systems.63 This follows from the Court's finding that following the assertion of British sovereignty, the indigenous peoples legal system could not create new rights or interests in land enforceable by the common law as that would conflict with British Crown's sole right to make law in the new territory.
Furthermore, even when claimants can establish in evidence that their native title rights and interests are sourced in pre-sovereignty customs, it is only the specific rights and interests, and not the indigenous laws that give life to them, that receive legal recognition. The High Court has acknowledged that this separation of rights and interests from the laws they originate fragments an otherwise integrated order. Nevertheless this approach was considered necessary by the Native Title legislation governing the recognition process:64
The connection which aboriginal peoples have with 'country' is essentially spiritual ... it is a relationship which sometimes is spoken of as having to care for and being able to 'speak for' country ... the difficulty of expressing a relationship between a community or group of aboriginal people and the land in terms of rights and interests is evident. Yet that is required by the Native Title Act. The spiritual or religious is translated into the legal. This requires the fragmentation of an integrated view of the ordering of affairs into rights and interests which are considered apart from the duties and obligations which go with them. What is in essence a spiritual connection is translated into legal rights and interests under the Native Title Act.
It is clear that following the signing of the Treaty of Waitangi in 1840 there were two legal systems operating within New Zealand. Several decades after the signing of the Treaty, tribal custom law reigned supreme in many regions. The ability to maintain the practice of these tribal customs and laws was plainly affected by the large-scale loss of customary lands, the arrival of vast numbers of settlers, and the law
64 Western Australia v Ward [2000] FCAFC 191; (2000) 170 ALR 159,
making powers asserted by the settler governments and courts.65 Nevertheless customary law has continued to be practised and adhered to by Maori communities, especially in relation to the foreshore-seabed, and customary law has been recognised and applied by the New Zealand courts. New Zealand common law decisions have recognised and applied specific Maori customary laws,66 but it is more common these days for Maori customary law to be incorporated into the New Zealand common law 1:13, statute. A large number of New Zealand statutes incorporate aspects of Maori customary law and there now exists a large body of case law addressing the nature and content of the customary concepts referred to in these Acts.68
However, the greatest scope for common law recognition of tribal customary law was provided by the Ngati Apa decisioh. That decision raised the possibility that large areas of New Zealand's foreshore and seabed remained subject to customary property rights. And that opened the way for New Zealand courts to recognise tribal custom laws as a part of the common law under the doctrine of native title or through a Maori Land Court determination that an area of foreshore-seabed has the status of Maori customary land. The Bill however does not provide any scope for the recognition of customary laws in relation to the foreshore-seabed. Evidence of customary laws will need to be adduced to establish a `customary right' to engage in a particular activity, but only the latter activity will receive legal recognition.
E. The Right to Effective Participation in Decisions Affecting Traditional Lands
It is a clear principle of international human rights law that indigenous peoples must effectively participate in decisions that affect them and their traditional lands. This right is often seen as having its origins in the right
65 See Alex Frame, 'Colonising Attitudes Towards Maori Custom' [1981] NZLJ 106; Frame notes how the early official British policy of exercising British authority through Maori laws and customs (albeit temporarily as seen in s 71 of the New Zealand Constitution Act 1852) became one of inducing Maori to accept British law and then, notably following the Land Wars of the 1860s, the policy of denying that Maori custom existed at all.
66 Public Trustee v Loasby [1908] NZGazLawRp 71; (1908) 27 NZLR 801 and Hineiti Rirerire Arani v Public Trustee (1919) [1919] UKPC 71; [1840-1932] NZPCC 1 (PC); [1920] AC 198.
67 An example is the Maori Land Act, which directs the court to declare that land is Maori customary land where it is held in accordance with Maori customary values and practices.
68 See ss 6(e) and 7(a) of the Resource Management Act 1991 and s 6(d) of the Hazardous Substances and New Organisms Act 1996.
to self-determination. The principle of effective participation is endorsed by article 5 of CERD and article 27 of the ICCPR.69 The CERD Committee's General Recommendation 23 recommends that states:7°
[E]nsure that members of indigenous peoples have equal rights in respect of effective participation in public life and that no decisions directly relating to their rights and interests are taken without their informed consent.
Clearly Maori communities have not participated effectively in the formulation of the Foreshore and Seabed Bill. In consultation hui following the release of the August foreshore-seabed proposals, Maori communities simply voiced their disapproval of the policies. But it is the lack of consultation and input by Maori into the August proposals that is significant as the Government has not deviated from the fundamental principles outlined in that document. That strongly suggests that the government had no real intention of obtaining Maori input into its response to the Ngati Apa decision. Rather, the government's response seems to have been directed more at meeting the needs expressed by the general public (access to beaches) and commercial interests in the foreshore-seabed, in particular the business of aquaculture and other activities authorised under the Resource Management Act 1991.
F. Freedom of Religion
International law protects the right to freely practise one's religion and beliefs. Article 18 of the ICCPR states:
Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to ... manifest this religion or belief in worship, observance practice and teaching.
69 See General Comment 23 — the rights of minorities, (1994) in Compilation of General
Comments and Recommendations Adopted by Human Rights Committee, HRI/GEN/1/Rev.5, 26 April 2000.
70 See CERD General Recommendation XXIII, on indigenous peoples, adopted August 18, 1997, CERD/C51/ Misc.13/Rev.4 (1997). This right has been emphasised in the last two decisions on Australia by the CERD Committee, which found that the 1998 amendments to the Native Title Act 1993 breached the CERD in that they failed to ensure the 'effective participation' of indigenous people: see Committee on the Elimination of Racial Discrimination, Decision (2)54 on Australia — Concluding observations/ comments, 18 March 1999. UN Doc CERD/C/54/Misc.40/Rev.2; Concluding Observations by the Committee on the Elimination of Racial Discrimination: Australia, 19 April 2000, UN Doc CERD/C/304/Add.101.
The Human Rights Committee commenting on the requirements of this provision has noted:71
`belief and 'religion' are to be broadly construed — the protection of article 18 is not confined only to institutional religions; and
`worship' includes ritual and ceremonial acts giving direct expression to beliefs, as well as various practices integral to such acts.
The relationship between Maori communities and their lands is in essence a spiritual one. Rights held by Maori communities in the foreshore and seabed will have their basis in concepts like take tupuna (ancestral rights), ahi kaa (the maintenance of a relationship with the land) and mana whenua (control and authority over ancestral territory). Under the Bill, the Maori Land Court can acknowledge a community's 'ancestral connection' to its foreshore and seabed, and that could influence administrative decisions affecting the foreshore-seabed. But that without more may be viewed as a token gesture. To protect the spiritual relationship between Maori communities and the foreshore and seabed, communities will require the right to control through their customary laws the conduct of activities on and access to their traditional lands. A general right to exclude access to areas of foreshore and seabed will not be possible under the Foreshore and Seabed Bill and a Maori Land Court `customary right' order will not include the right to control access to burial sites and other areas of religious or cultural significance to Maori through the customary practice of rahui.72
G. CERD Committee's Early Warning and Urgent Procedures —Experience in Australia
Since 1993, the CERD Committee has developed early warning and urgent procedures where there is particular cause for concern that some proposed state action may result in violation of the CERD.73 In August 1998 the Committee acting under its early warning procedure requested Australia to provide it with information concerning the 1998 amendments to the Native Title Act 1993. The amendments were in response to the
71 Human Rights Committee, General Comment 22: Right to freedom of thought, conscience and religion, (1993) in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, HRI/GEN/1/Rev.5, 26 April 2000, p 144.
73 Art 9( I )(b) of CERD.
High Court decision Wik Peoples v State of Queensland74 which held that a governmental grant of a pastoral lease over a given area does not necessarily extinguish native title over the same area. The amendments were, it seemed, intended to provide greater certainty to non-indigenous property interests to the detriment of native title holders. For example, the Act provided for the 'validation' of certain encroachments on native title that occurred between the date of the Native Title Act 1993 and the date of the Wik decision, 23 December 1996.75 Also, the amended Act classified certain land holdings as 'previous exclusive possession acts' that were 'deemed' to extinguish native title forever (for example a lease that gave a lessee exclusive possession). These tenures were listed in the schedule of the Act, which ran to 50 pages and included grants made as early as 1829 and legislation dating back to 1860.
Following consideration of the written and oral submissions made by the Australian government, the CERD Committee took a decision which was highly critical of the 1998 amendments to the Native Title Act 1993.76 The Committee expressed concern with the lack of compatibility of the Native Title Act as amended with Australia's international obligations under CERD. The Committee noted that 'while the original Native Title Act 1993 recognises and seeks to protect indigenous title, provisions that extinguish or impair the exercise of indigenous title rights and interests pervade the amended Act'. In the Committee's view, the amended Act appeared to 'create legal certainty for governments and third parties at the expense of indigenous title'. In particular, the Committee noted that the `validation' and 'confirmation of extinguishment' provisions in the amended Act discriminated against indigenous title-holders. These measures raised concerns about Australia's compliance with articles 2 and 5 of CERD. The lack of effective participation by indigenous communities in the formulation of the amendments was also raised by the Committee as a major area of concern with respect to the Australian government's compliance with its obligations under article 5(c) of the Convention. Recalling its General Recommendation on Indigenous Peoples which calls on governments to `... recognise and protect the rights of indigenous peoples to own, develop, control and use their common lands, territories and resources', the Committee stressed the importance of ensuring 'that members of indigenous peoples have equal
rights in respect of effective participation in public life, and that no decisions directly relating to their rights and interests are taken without their informed consent.'
The Committee asked Australia to address these concerns as a matter of utmost urgency and urged the government immediately to suspend implementation of the amendments to the Native Title Act and re-open discussion with indigenous representatives 'with a view to finding solutions acceptable to the indigenous peoples and which could comply with Australia's obligations under the Convention'.77 The Australian government did not follow the CERD Committee's recommendations, actually called for an overhaul of the United Nations committee system, and conditioned further co-operation with the committees on such an overhaul.
III. CONCLUSION
This article concludes that in relation to Maori customary rights to lands and natural resources, the Foreshore and Seabed Bill is not consistent with the human rights standards set by CERD and the ICCPR. Given the current political environment the discriminatory elements in the Bill are unlikely to be removed before the Bill is passed into law. It is highly likely, then, that the CERD Committee and Human Rights Committee will eventually condemn the Act either through New Zealand's state reporting process or, in respect of the ICCPR, an individual communication. But that criticism is likely to come well after the Bill becomes law and at that point there is unlikely to be sufficient support in Parliament for amending the legislation. It is suggested therefore that Maori consider invoking the CERD Committee's early warning procedure. A decision from the CERD Committee on the Bill will highlight the Bill's discriminatory elements, raise general awareness of the Bill's human rights implications, and hopefully prompt amendments to the Bill.
77 See also the Concluding Observations by the Committee on the Elimination of Racial
Discrimination: Australia, 19 April 2000, UN Doc CERD/C/304/Add.101. See also the criticisms of the 1998 amendments to the Native Title Act 1993 made by the Human Rights Committee: Concluding Observation of the Human Rights Committee: Australia, UN doc al 55140 , 24 July 2000.
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