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Foreshore and Seabed Part 1 - Submission to Fisheries and Other Sea Related Legislation Select Committee [2004] NZHRCSub 1 (12 July 2004)

Last Updated: 26 March 2015

Human Rights Commission

Submission on the

Foreshore and Seabed Bill:

Part 1 Submission

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Fisheries and Other Sea Related Legislation Select Committee

12 July 2004

The Commission wishes to make an oral submission

Contact person:
Diana Pickard
Legal and Policy Analyst
Direct dial 04 496 9774

CONTENTS PAGE


PART 1: EXECUTIVE SUMMARY 3


PART 2: INTRODUCTION AND CONTEXT FOR THIS SUBMISSION 4
- Background to the Bill
- The Human Rights Commission mandate
- Treaty of Waitangi and human rights
- Differing concepts of land ownership

- The Commission’s view of customary rights and

customary title
- Parliamentary sovereignty and human rights


PART 3: POSITIVE ASPECTS OF THE BILL: COMMON GROUND 10

Positive cultural connections

- Other common ground in the Bill

PART 4: HUMAN RIGHTS ISSUES RAISED BY THE Bill 12

- Part 4.1 Rights of minorities 13
- Part 4.2 Right to freedom from discrimination 18
- Part 4.3 Right not to be arbitrarily deprived of 23

property, and compensation

- Part 4.4 Right to development 26

PART 5: THE WAYS FORWARD 30

- The Commission’s preferred recommendation
- Subsequent recommendations: Ways to improve

the Bill’s compliance with human rights

PART 1: EXECUTIVE SUMMARY

1.1 The Commission has considered the Foreshore and Seabed Bill in detail. We have canvassed the context in which the foreshore and seabed debate occurs, the positive aspects of the Bill and, as our mandate requires, the Bill’s impact on domestic and international human rights obligations.

1.2 For the reasons set out in this submission and the attached appendices, the Commission concluded that parts of the Foreshore and Seabed Bill are inconsistent with the following human rights:

• The rights of minorities;
• The right to freedom from discrimination;
• The right not to be arbitrarily deprived of property, and compensation; and
• The right to development.

1.3 Consequently the Commission’s preferred recommendation is that this legislation does not proceed until a “longer conversation” has been held with the people of New Zealand. In the alternative, if the Bill is to proceed, the Commission recommends the following changes, at a minimum, to address the Bill’s current non-compliance with human rights:^[1]

• Recommendation 1: Preserve customary title
• Recommendation 2: Improve status for territorial customary rights holders
• Recommendation 3: Provide guarantee of equitable redress for loss of exclusive customary title
• Recommendation 4: Provide avenue of appeal for territorial customary rights applicants
• Recommendation 5: Remove ‘fiduciary duty’ from the Bill
• Recommendation 6: Improve the inalienability provisions
• Recommendation 7: Clarify the ability to protect culturally important sites
• Recommendation 8: Refine breadth of definition of customary rights
• Recommendation 9: Remove the time limits from the Bill
• Recommendation 10: Amend requirements relating to 1840
• Recommendation 11: Remove or rephrase limits on customary connections.

PART 2: INTRODUCTION AND CONTEXT FOR THIS SUBMISSION


Tēnā koutou me ngā āhuatanga o te wā

2.1 The Human Rights Commission welcomes the opportunity to make a submission on the human rights issues raised by the Foreshore and Seabed Bill.


Background to the Bill

2.2 The issue that gave rise to the Government’s decision to introduce the Foreshore and Seabed Bill was the decision of the Court of Appeal in Ngati Apa.^[2] The Court of Appeal’s ruling focused on the foreshore and seabed being part of the land under Te Ture Whenua Maori Act 1993 –for which the Māori Land Court can determine status – and on the general non-extinguishment of (potential) customary title in New Zealand. Regardless, the decision was widely regarded in the media as determining Māori ownership of the foreshore and seabed.

2.3 In response, the Government announced its intention to legislate. A series of hui were held around the country, at which Māori expressed overwhelming opposition to the Crown’s proposals. The Waitangi Tribunal was asked to consider the Crown policy and found that the human rights and Treaty rights of Māori were infringed by the proposed legislation. When the Government announced its intention to introduce the present Bill, there was an unprecedented mobilisation of Māori culminating in the hikoi to Parliament in May of this year. No other issue has so incensed Māori in recent times. Opposition to the Bill has not been restricted to Māori. There have also been many Pakeha voices of concern about the apparent infringement of human rights and the guarantees of the Treaty of Waitangi.

2.4 There has been equally strong and legitimate concern about public access to the foreshore and seabed, and in support of public or Crown ownership on behalf of all the people of New Zealand. This has its roots in the close affinity that all New Zealanders feel with the beach, which has its own element of customary use.

2.5 The tragedy of the public debate to date has been an unwillingness to recognise that there is a difference between the Māori and British concepts of ownership. The Waitangi Tribunal did however point out that there was considerable common ground to explore in relation to inalienability of title and of guaranteed public access.

The Human Rights Commission mandate

2.6 The Commission has two primary functions under the Human Rights Act. These are:

1. To advocate and promote respect for, and an understanding and appreciation of, human rights in New Zealand society; and
2. To encourage the maintenance and development of harmonious relations between individuals and among the diverse groups in New Zealand society.^[3]

2.7 In addition, Commission is required to promote, by research, education, and discussion, a better understanding of the human rights dimensions of the Treaty of Waitangi and their relationship with domestic and international human rights law. The Commission may also inquire into any matter that involves, or may involve, the infringement of human rights.^[4]

2.8 These principles of human rights, harmonious relations, and the human rights dimensions of the Treaty of Waitangi, provide an appropriate framework in which to examine the Foreshore and Seabed Bill and to identify the most appropriate way forward.

2.9 The Commission, as a national human rights institution, also has obligations under both the Human Rights Act 1993 and the United Nation’s Paris Principles to act independently, and to maintain independence from government.

2.10 The Commission’s response on issues surrounding the foreshore and seabed has been threefold:

• First, the Commission sent a letter to the Prime Minister on 24 November 2003, in which we raised the human rights matters relevant to the foreshore and seabed policy at that stage;
• Secondly, the Commission organised a series of “Speaker Forum” open to the public on ‘Human Rights and the Foreshore and Seabed’; and
• Thirdly, the Commission is addressing the human rights issues raised by the Foreshore and Seabed Bill in this submission.

2.11 In this submission our main focus is on:

• whether the Bill complies with rights provided in the New Zealand Bill of Rights Act 1990, including whether any limits placed on those rights are reasonable and justifiable limits under the Act; and

• whether the Bill complies with the international human rights obligations set out in relevant international instruments, including whether any limits placed on those rights are reasonable.

2.12 The Commission’s conclusions on the human rights issues are stated in this submission, as are our recommendations for change. Our full analysis of the human rights issues, with our reasoning in reaching these conclusions and thereby forming these recommendations, are set out in the appendices to this submission. We encourage reference to both documents.


Treaty of Waitangi and human rights

2.13 The place of the Treaty of Waitangi in New Zealand today has profound significance for both human rights and for harmonious relations.

2.14 In exploring the relationship between human rights and the Treaty of Waitangi, the Commission has focused on the terms of the Treaty’s Preamble and three articles. In brief they are:

• Article 1 which provides for the Crown’s right to govern in New Zealand and when taken together with the Preamble provides the basis for settlement;
• Article 2 which guarantees to Māori ‘full, exclusive and undisturbed possession’ (English version) or ‘te tino rangatiratanga’ (Māori version) of their lands, estates, forests, fisheries, and ‘taonga’ (treasured possessions). In addition to the property rights clearly protected, this article provides for Māori the right to live as Māori and to govern relevant aspects of Māori life;
• Article 3 which affirms the equal citizenship rights of Māori and all New Zealanders (then British subjects).

2.15 From Human Rights Commission regional symposia and community dialogue sessions around the country over the last 12 months, six themes based on human rights and the Treaty of Waitangi have emerged that encompass the tensions and issues that must be addressed before finalising any legislation on the foreshore and seabed. The six themes are:

• The right of Government to govern;
• The right of Māori to live as Māori;
• Full enjoyment of the benefits of New Zealand citizenship for all New Zealanders;
• Equal opportunities and outcomes for Māori and all other New Zealanders;
• The right of the public to be fully informed and to be able to participate in Treaty of Waitangi discussions and decisions; and
• Indigenous rights and their relationship with human rights and Treaty rights.

2.16 This submission touches on each of these themes. They are, for example, closely related to Article 2 of the Treaty, and the right to development. They are also clearly connected to the good faith obligations of the Treaty parties, and the rights of minorities to enjoy their cultures and the right to freedom from discrimination. These connections were foreshadowed by the Waitangi Tribunal, whose report on the Government’s foreshore and seabed policy found breaches of the human rights and Treaty rights of Māori.


Differing concepts of land ownership

2.17 An important contextual element of the entire foreshore and seabed debate is the recognition of, and respect for, differing concepts of land ownership. This is seen through the different legal approaches to land ownership – from the private and individualised fee simple title to land, gained under what is known as the Torrens system established by statute, to the customary communal ownership of land by aboriginal/native peoples, which at times can be recognised at common law.

2.18 These differing concepts are at the heart of any debate on customary rights and customary title in relation to the foreshore and seabed. These differences can in many circumstances be described as an interpretive tension resulting from colonial history. The Privy Council, in Amodu Tijani, in 1921 observed that:

[I]n interpreting the native title to land ...much caution is essential. There is a tendency operating at times unconsciously to render title conceptually in terms which are appropriate only to systems which have grown up under English law. But this tendency has to be held in check closely. As a rule, in the various systems of native jurisprudence throughout the Empire, there

is no such full division between property and possession as English lawyers are familiar with.^[5]

2.19 Alan Ward, writing in 1999^[6], noted that:

To a large extent, however, the nature of Māori interest in waterways, the foreshore and the sub-surface has not been clearly determined. The

Crown Proposals [i.e. the 1994 ‘fiscal envelope’], however, recognised only a ‘use interest’ and a ‘value interest’ in the natural resources on the land, not the ‘ownership interest’ that Māori claim. This was in part an illustration of the difficulty of translating complex Māori concepts, such as mana over land, or the Treaty guarantee of ‘tino rangatiratanga’ over land and other taonga, into British concepts of property. Māori customary rights were certainly much more than ‘use rights’, but the Crown and settlers have always been reluctant to accept them as equivalent to ‘ownership’,

‘proprietorship’ or ‘exclusive possession’ in the European sense, partly because of the different levels and kinds of rights traditionally exercised over the same land.

2.20 These two concepts of land ownership have some connection at present through the ability of the Māori Land Court to recognise land (including foreshore and seabed) as having the status of Māori customary land for iwi or hapu. That status can, in some circumstances, provide for the land to be recognised as Māori freehold land status. Freehold land status can entitle the applicant to a provisional title under the Land Transfer Act 1952.^[7]


The Commission’s view of customary rights and customary title

2.21 In this submission the term ‘customary title’ is used to include the terms aboriginal title and native title. The term ‘customary rights’ is used herein to denote the ‘sub-strata’ of practices, customs, activities and uses which may accompany customary title. For more transient activities, such as seasonal hunting, or seasonal collection of seaweed, customary rights will be unlikely to amount to customary title over a particular piece of land.

2.22 Our view on the nature of customary rights and, in particular, customary title is as follows. The public law specialists, Chen and Palmer have commented that^[8]:

[Customary rights and customary title] are recognised in international law and some domestic law, and provide ways of protecting the interests of indigenous people and their associations with places of traditional significance to them. Customary rights can include the exercise of “mana” or authority, guardianship responsibilities which contribute to conservation or sustainable use of resources, traditional practices such as food gathering, and other activities such as visiting burial grounds or other significant sites. They can also in some circumstances add up to exclusive title. ...


2.23 Customary title is a right to the land itself, and if it is to be established the following general criteria need to be met:^[9]

• unique characteristics (called sui generis) – which cannot be completely explained by reference to proprietary interests such as fee simple, and which must be understood by reference to both common law and aboriginal perspectives;

• a source in the prior occupation of New Zealand and land possession by aboriginal peoples before the assertion of British sovereignty;
• exclusive group use and occupation of the land (with both common law and aboriginal perspectives taken into account when establishing proof of occupancy);^[10]
• a communally held collective right;^[11] and
• the land is inalienable except to the Crown.^[12]

2.24 In Canada customary title is protected by section 35 of the Constitution Act 1982, which recognises and affirms aboriginal and treaty rights. Customary title can not be extinguished without consent, and legislation can not infringe upon it without justification. The Canadian Supreme Court has held that customary title encompasses the right to exclusive use and occupation of land, for a variety of purposes which are not necessarily traditional. The Court stated:

The content of aboriginal title... is a right in land and, as such, is more than the right to engage in specific activities which may be themselves aboriginal rights. Rather, it confers the right to use land for a variety of activities, not all of which need be aspects of practices, customs and traditions which are integral to the distinctive cultures of aboriginal societies. Those activities do not constitute the right per se; rather, they are parasitic on the underlying title. However, that range of uses is subject to the limitation that they must not be irreconcilable with the nature of the attachment to the land which forms the basis of the particular group’s aboriginal title. This inherent limit... flows from the definition of aboriginal title as a sui generis [unique] interest in land, and is one in which aboriginal title is distinct from fee simple.^[13]

2.25 The New Zealand Court of Appeal, in 1993^[14] said that “the nature and incidents of aboriginal title are matters of fact dependent on the evidence in any particular case”. This approach was repeated by the Court in 2003 in Ngati Apa^[15].


Parliamentary sovereignty and human rights

2.26 In New Zealand Parliament is sovereign, and has the authority to enact legislation as it chooses.

2.27 However, there are matters which Parliament must take into account when exercising its powers. These include constitutional conventions, international law, the Treaty of Waitangi, and the New Zealand Bill of Rights Act 1990.^[16] It is in the public interest for any exercise of Parliamentary sovereignty to strive to accord with international and domestic human rights standards. This subject is discussed in more detail in Appendix 1 to this submission.




PART 3: POSITIVE ASPECTS OF THE BILL: COMMON GROUND


3.1 In the Waitangi Tribunal’s report on the Government’s foreshore and seabed policy, the Tribunal stated that:

It seems to us that [Māori] claimants and the Crown agree on some fundamental points. Although the cultural imperatives are different, they agree that the public should generally have access to the foreshore and seabed (except where this would cause harm), and they agree that the foreshore and seabed should not be sold”^[17]


3.2 The Foreshore and Seabed Bill has positive aspects, reflecting common ground for people in New Zealand.


Positive cultural connections

3.3 Despite the intensity of the debate surrounding the Foreshore and Seabed Bill, a common thread running through it has been the expression of a positive cultural connection with the coastline, with the foreshore and seabed, as part of being peoples in New Zealand. The following statements are illustrative of this connection.

For me, then, to be Pakeha on the cusp of the twenty first century is not to be European; it is not to be an alien or a stranger in my own country. It is to be a non-Māori New Zealander who is aware of and proud of my antecedents, but who identifies as intimately with this land, as intensively and as strongly as anybody Māori. It is to be, as I have already argued another kind of indigenous New Zealander.^[18]

3.4 And from the petition of Tanameha Te Moananui and others from Pukerahui on 5 August 1869:

You, the Government, have asked for the gold of Hauraki; we consented. You asked for a site for a town; you asked also that the flats of the sea off Kauwaeranga should be let; and those requests were acceded to. And now you have said that the places of the sea which remain to us will be taken. O friends, it is wrong, it is evil. Our voice, the voice of Hauraki, has agreed that we shall retain the parts of the sea from high-water mark outwards. These places were in our possession from time immemorial ; these are the places from which food was obtained from the time of our ancestors even down to their descendants. ... O friends, our hands, our feet, our bodies are always on our places of the sea. ... The men, the women, the children are united in this, that they alone are to have the control of all the places of the sea.^[19]

3.5 Iwi, hapu and whanau as indigenous people have a strong connection with the land – Papatuanuku – and thereby with the foreshore and seabed - the papamoana. This can be illustrated through linguistics. The word ‘tai’, for example, depicts the relationship that coastal communities had with their waters:

• Tai Tokerau – waters to the north;
• Tai Rāwhiti – waters to the east;
• Tai Hauāuru – waters to the west;
• Tai Tonga – waters to the south.

3.6 For iwi and hapu the traditional and contemporary rights and responsibilities, rangatiratanga and kaitiakitanga, which attach to the foreshore and seabed, address:

• the management of food and other resources, for example, to ensure the survival of taonga for future generations; and
• the control of access, not only to food and other resources but also to wahi tapu and other sacred sites.

3.7 An important aspect of the exercise of these rights and responsibilities is that the culture is not static, but is constantly required to adapt and develop. The following concepts, for example, can change over time:

• Rangatiratanga: applying use rights including to fish, to take sea-weed, gather sea birds, use sand and stones, and to travel. This also includes granting others the right to use the foreshore and seabed for development or sustainable living; and

• Manaakitanga: enhancing mana through hospitality and generosity, through sharing the bounty of the papamoana with other people as iwi or hapu see fit.

Other common ground in the Bill

3.8 Further positive aspects of the Bill, reflecting common ground, comprise:

• The broad respect for the principle of public access to the foreshore and seabed;
• The ability to restrict access to the foreshore and seabed as necessary, for example, to protect rahui;
• Broadly held respect for the principle of inalienability of New Zealand’s foreshore and seabed;
• The new requirements under the Resource Management Act 1991 (RMA) which include, for example, the customary rights as prescribed by the Bill.

3.9 A more detailed discussion of these further, positive aspects of the Bill can be found in Appendix 2 to this submission.




PART 4: HUMAN RIGHTS ISSUES RAISED BY THE BILL

4.1 The Commission’s main concerns with the provisions of the Foreshore and Seabed Bill are that the Bill:

• Extinguishes the ability of iwi and hapu to seek recognition through the courts of customary title over the foreshore and seabed – customary title being a common law doctrine that recognises a customary and cultural connection with foreshore and seabed land amounting to exclusive group use and occupation;^[20]
• Removes the ability of iwi and hapu to seek from the Māori Land Court recognition of “Māori customary land status” over parts of the foreshore and seabed, under Te Ture Whenua Act 1993 – being the current statutory provision for recognition of customary and cultural connection;
• Replaces the current court actions with a new legal scheme that requires Māori to seek recognition of the sub-strata of customary rights and ancestral connections first, before Māori are able to seek (in a second court proceedings) the new “territorial customary right” – which might (and only might) lead to an undefined form of redress for the loss of customary title;

• Provides no avenue of appeal should an application to the High Court for recognition of customary title through a “territorial customary right” be unsuccessful;
• Removes the ability of iwi or hapu to bring a claim concerning foreshore and seabed before the courts on the basis of fiduciary duty;
• Allows alienation of the foreshore and seabed by limited means, but includes no specific requirement for alienation to be in accordance with tikanga, when the foreshore and seabed to be alienated is related to ancestral connection orders, customary rights orders, and/or a territorial customary right;
• Requires iwi and hapu to prove the existence of ‘substantially uninterrupted’ activities in parts of the foreshore and seabed since 1840, but raises doubt whether modern versions of past activities, or modern cultural activities that have been developed in those areas, will fall within those parameters;
• Specifically excludes, when defining ‘substantially uninterrupted’ activities, any interruptions between 1840 and the modern day that have been caused by ‘an enactment or rule of law’ - making it possible for example that land confiscated unjustly in the past by statute will now serve to remove the chance of iwi and hapu having a customary activity recognised;
• Sets a 2015 time limit on the recognition of customary rights.

4.2 These aspects of the Bill raise the following human rights issues:

4.1 Rights of minorities;
4.2 Right to freedom from discrimination;

4.3 Right not to be arbitrarily deprived of property; and compensation; and
4.4 Right to development.

4.3 Specific aspects of the Bill may give rise to issues under more than one of the human rights listed above. And, of course, human rights do not exist separately, their application is both universal and indivisible.

4.4 Appendix 9 to this submission also sets out some further human rights issues where the Commission has concluded a breach of human rights standards is unlikely.



PART 4.1: RIGHTS OF MINORITIES

4.5 Māori are an indigenous people who also form a minority group in New Zealand. There has been resistance from indigenous peoples to their rights being equated with the rights of cultural minorities, as it can fail to take into account the specific history and relationship to territory that comes from being the first peoples

of that territory. Viewing indigenous peoples solely as a minority group can overlook a history of forced colonisation, distinct cultural, social, and economic rights, and a need for political protection. In other words, while minority groups include indigenous peoples they do not exhaust their rights.^[21]

4.6 Section 20 of the Bill of Rights Act protects the rights of minorities in New Zealand, stating that:

A person who belongs to an ethnic, religious, or linguistic minority in New Zealand shall not be denied the right, in community with other members of

that minority, to enjoy the culture, to profess and practise the religion, or to use the language, of that minority.

4.7 As Paul Rishworth has commented:

There is a significant overlap between section 20 and the principles of the Treaty of Waitangi as interpreted and applied by the courts. Both signify the need for consultation, good faith and proper consideration of Māori interests. There may also be overlap to the extent that substantive invasions of Māori cultural rights may be labelled both as Treaty breaches by the Waitangi Tribunal and breaches of section 20 by the courts.^[22]

4.8 The international source of section 20 is Article 27 of the International Covenant on Civil and Political Rights (ICCPR), which provides:

In those states in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.


Is there a breach of section 20 of the Bill of Rights Act?

4.9 The provisions of the Foreshore and Seabed Bill impose the following cultural constraints on Māori:

• Kaitiakitanga: The Bill adversely impacts on kaitiakitanga by extinguishing the possibility of gaining customary title over foreshore and seabed areas, (and by removing the ability to seek Māori freehold land

status for Māori customary land in foreshore and seabed areas). In doing so, the Bill provides only a lesser recognition of customary rights ;

• Culture frozen in time: The Bill appears to have the capacity to freeze the recognition of Māori custom and culture, with regard to activities, in an 1840 time warp – for example, there is no equivalent in the Bill of the Canadian Supreme Court’s requirement that a customary activity can be “an exercise in modern form of a pre-contact practice”;^[23]

• Relationship with land: Cultural rights should be interpreted by reference to the beneficiary of the right.^[24] A Māori interpretation of culture places a great deal of importance on the land, including coastal land (as the people belonging to the whenua and not vice versa). Under the Bill removal of customary title, for example, limits that cultural connection.

• Alienation: The Bill allows alienation of the foreshore and seabed by limited means, but includes no specific requirement for alienation to be in accordance with tikanga, when the foreshore and seabed to be alienated is related to ancestral connection orders, customary rights orders, and/or a territorial customary right; and

4.10 In addition, and importantly under Article 27 of the ICCPR, the Bill’s provisions do not have the consent of the majority of iwi, hapu and whanau in New Zealand.

4.11 Consequently the Bill substantially denies Māori, the indigenous people of New Zealand, the right to enjoy their culture in relation to the foreshore and seabed by placing limits on that right. This is a breach of section 20 of the Bill of Rights Act.


Are these limits reasonable and justifiable?

4.12 When considering what limits are reasonable – for civil and political rights originating in the ICCPR - the Siracusa Principles provide guidance.^[25] Thomas J in the Court of Appeal^[26] has stated that the test of whether rights limitations are reasonable “should not be approached without having regard to the Siracusa Principles”.

4.13 The Principles state that “no limitations or ground for applying them to rights guaranteed by the Covenant are permitted other than those contained in the terms of the covenant itself”. Article 27 of the Covenant (the origin of section 20 of the Bill of Rights Act) contains no limitations. There is, therefore, a strong argument that allowing any limits to be placed on the rights of minorities to enjoy their culture, as provided in Article 27 and section 20, weakens that right in an unacceptable and inappropriate manner.

4.14 However, given the absence of New Zealand case law on the application of section 20 in practice, the Commission has gone on to consider whether these limits on the rights of a minority are reasonable and justifiable under section 5 of the Bill of Rights Act. This section provides that the rights can be:

[S]ubject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

4.15 The scheme of analysis put forward by New Zealand’s Court of Appeal^[27] – best employed when seeking to identify reasonable and justifiable limits on human rights under section 5 – mirrors similar developments in relevant jurisdictions. Identifying reasonable limits on human rights is more than a matter of simple balancing – more than a version of ‘on the one hand and on the other hand’. It is instead a careful and measured analysis, comprising several stages, as set out in the material in Appendix 4 to this submission.

4.16 In short, the inquiry best employed under section 5 of the Bill of Rights Act involves consideration of:

1. whether the legislative provision in question serves a significant and important objective (referred to in other jurisdictions as a ‘pressing and substantial objective’), and if so,
2. whether there is a rational and proportionate connection between that objective and the legislative provision, including whether the objective can be achieved in another way which interferes less with the right or freedom affected.^[28]

A: Is the policy objective for the Bill significant and important?

4.17 The relevant policy goal to consider in relation to the right of minorities, is the goal to ‘recognise and protect’ customary rights. This includes investigating

their “full extent”, and providing “for formal discussions on redress”.^[29] This forms a significant and important policy objective.

4.18 Please note that we analyse the Government’s primary policy objective, of legal certainty over the foreshore and seabed, in detail under the next part of this submission.^[30]


B. Is the Bill a rational and proportionate way in which to reach the policy goal?

4.20 The Bill does not achieve the objective of recognising and protecting customary rights in a rational and proportionate manner, because the Bill:

• provides no greater certainty than currently exists that customary rights will be recognised by the courts on a case by case basis over time (thereby failing to provide a rational connection with the policy objective); and
• removes the current ability of Māori to seek recognition of customary title at common law (thereby failing to provide a proportionate relationship with the objective); and
• appears to substantially limit the ability of Māori to enjoy their culture and custom in the foreshore and seabed area, in the ways the Commission has described in the paragraphs above (thereby again failing to provide a proportionate relationship with the objective).

Conclusion on Part 4.1: Rights of minorities

4.21 The Bill as currently drafted breaches section 20 of the Bill of Rights Act concerning the rights of minorities. The Bill places limits on the rights of iwi, hapu, and whanau to enjoy their culture in connection with the foreshore and seabed. These limits are not reasonable and justifiable under section 5 of the Bill of Rights Act. In reaching this conclusion, the Commission has followed the respected form of analysis for identifying such limits on human rights.

4.22 Full details of our analysis of the rights of minorities are set out in Appendix 3 to this submission.

PART 4.2: RIGHT TO FREEDOM FROM DISCRIMINATION

4.23 Section 19(1) of the Bill of Rights Act provides everyone in New Zealand with the right to freedom from discrimination on certain grounds which include race.^[31] The international origin for this right is Article 26 of the ICCPR, which provides that:

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

4.24 Taking into account leading decisions of New Zealand and Canadian courts on the meaning of discrimination^[32], the identification of discrimination under section 19(1) of the Bill of Rights Act can require asking whether there is:

• a distinction being made on the basis of one or more of the prohibited grounds of discrimination; and, if so
• whether that distinction involves a disadvantage to an individual or group (and disadvantage can include, for example, the lack of recognition of status, or a lack of access to tangible or future benefits).

Identifying prima facie discrimination in the Foreshore and Seabed Bill

4.25 In general terms, the Constitutional Court of South Africa has recently held^[33] that racial discrimination can lie “in the failure to recognise and accord protection to indigenous ownership while, on the other hand, according protection to registered title”.

4.26 Of more specific relevance to the current Bill, the Attorney-General’s recent advice - on the Foreshore and Seabed Bill’s compliance with Bill of Rights Act - states that:

On balance, I accept it is seriously arguable that these two features of the Bill, i.e., extinguishment of the possibility of Māori customary title and the

absence of a guaranteed right of redress, are likely to lead to a finding that the Bill prima facie infringes section 19 BORA. ^[34]

4.27 The Commission agrees with the Attorney-General’s opinion that prima facie [on the face of it] discrimination exists in the provisions of the Bill. The Bill appears to breach the right to freedom from discrimination on the ground of race.


Are the limits on the right to freedom from discrimination reasonable and justifiable?

4.28 As set out previously, the inquiry best employed under section 5 of the Bill of Rights Act can be phrased as:

1. whether the legislative provision in question serves a significant and important objective, and if so,
2. whether there is a rational and proportionate connection between that objective and the legislative provision, including whether the objective can be achieved in another way which interferes less with the right or freedom affected.

A: Is the policy objective for the Bill significant and important?

4.29 The Attorney-General’s advice^[35] on the prima facie discrimination in the Foreshore and Seabed Bill is that:

The principal reason for introducing the Bill is to clarify the law for both Māori and non-Māori alike. The state of the law on this subject may best be described as radically indeterminate. The Ngati Apa decision created significant uncertainty with regard to the common law status of customary interests in the foreshore and seabed in New Zealand. ...

Without legislation the Courts would be required to develop the common law of indigenous rights on a case-by-case basis over many years.

... [T]here would be substantial uncertainty as to the legal status of New Zealand's coastline for many years, and governments have the obligation to provide certainty in the law wherever possible.

4.30 The Government’s primary policy goal in the Bill can therefore be summarised as one of ‘clarifying the law in relation to the foreshore and seabed in order to provide certainty’. Some certainty has been seen as necessary due to fact (i.e. the decision in Ngati Apa as it relates to Crown ownership of the

foreshore and seabed), while other certainty is seen as necessary due to conjecture (i.e. on whether Māori would allow public access to the foreshore, or whether the Māori Land Court would grant foreshore and seabed that gained customary land status, the further status of Māori freehold land).

4.31 A full analysis of this policy goal is set out in Appendix 5. Here we note that the notion of “certainty” as a goal has the capacity to be so broad that it could be adapted at different times to apply to all statute law. Such a goal may serve as a slippery slope to all legal measures that introduce some measure of certainty being deemed significant and important goals under section 5. This could also be seen as shorthand for administrative efficiency, which the Court of Appeal^[36] has stated should not transcend human rights, rather than providing an acceptable basis for limiting rights. It is in the public interest that a policy goal under the section 5 test be focused and specific, so that human rights cannot be easily limited.^[37]

4.32 In addition, the UN Committee on the Elimination of Racial Discrimination has expressed concern over the Australian government’s legislative measures to gain legal certainty at the expense of native title in relation to the non-discrimination provisions of the International Convention on the Elimination of all Forms of Racial Discrimination.^[38] A goal in New Zealand of certainty over the foreshore and seabed, similarly gained at the expense of recognition of customary title, may attract similar international criticism.

4.33 Consequently, the Commission is not convinced that an objective of legal certainty over the foreshore and seabed is sufficiently focused, nor (given the CERD Committee comment) sufficiently significant and important, to form an objective that satisfies the first limb of the inquiry under section 5.

4.34 Nonetheless, in this instance, we have gone on to consider the second limb of the section 5 inquiry - whether the Bill is a rational and proportionate way in which to reach that policy goal.

B. Is the Bill a rational and proportionate way in which to reach the policy goal?

A rational way to reach the goal?

4.35 The provisions of the Bill do not provide a rational relationship with the Government’s objective.

4.36 The one clear achievement in terms of certainty is that the Crown will own the foreshore and seabed. However, the Bill provides few actual further advances in terms of legal certainty over the foreshore and seabed. As was the situation after the Court of Appeal’s decision in Ngati Apa, the majority of matters remain to be settled by the courts. For example, significant matters yet to be determined on a case by case basis are:

• who has ancestral connection with the foreshore and seabed;
• who has the ability to carry out customary activities in the foreshore and seabed, and potentially derive commercial benefit from that activity, under a customary rights order;
• who local authorities must consider, in practical rather than theoretical terms, when dealing with commercial and environmental matters (for example, the construction of sea walls) in the foreshore and seabed area;
• who has customary title sufficient to be described as territorial customary rights; and
• who may gain redress for loss of customary title.

4.37 In addition:

• the public’s ability to gain access to the foreshore and seabed is not certain under the Bill. The Deputy Prime Minister, the Hon Dr Cullen, has advised that this “is being dealt with elsewhere in the Land Access Review that the Ministry of Agriculture and Forestry has underway”;^[39] and

• under the Bill the avenues of appeal^[40] remain the same as at present – a situation that the Attorney-General has noted as creating potentially

confusing and uncertain jurisprudence – with appeals from the Māori Land Court for matters of tikanga remaining to the Māori Appellate Court.^[41]

4.38 In short, bar ownership, the certainty provided by the Bill goes little further than a new set of rules governing how decisions are to be made over time,

replacing a previous set of rules. A rational connection between what the Bill provides, and the Government’s stated policy goal, is questionable.


A proportionate way to reach the goal?

4.39 The means used in the Bill to achieve the Crown’s policy goal are not proportionate. There appear to be other ways to achieve a workable level of certainty about the foreshore and seabed while limiting less the right to freedom from discrimination. Iwi have expressed the view that under the Bill the brunt of the measures to create certainty (i.e. ownership vesting in the Crown) are borne by Māori, and Māori bear the brunt of uncertainty created by the Bill (e.g., on whether customary activities will be recognised).

4.40 It is not necessary to extinguish the possibility of Māori customary title at common law, and without certain redress, in order to gain certainty over the foreshore and seabed. Nor is the imposition of time limits on the recognition of customary rights necessary to achieve that goal.^[42] Instead, certainty can only be reached through durable solutions, reached by a means that respects human rights and which, as far as possible, have the agreement of all affected.

4.41 Possible alternatives to the new legal scheme are canvassed in detail in Appendix 5, and in our recommendations in Part 5 of this submission. We believe that some of these alternatives may provide a more proportionate response to foreshore and seabed issues. Some may reach the policy goal better than it is reached by the provisions of the Bill, while limiting less, if at all, the right of Māori to freedom from discrimination. As reflected in our recommendations, a potential model is provided by the Canadian approach, where customary title is preserved.

4.42 The Siracusa Principles can again provide guidance.^[43] The Principles state that “the scope of a limitation .. in the Covenant shall not be interpreted so as to jeopardise the essence of the right concerned”. Proportionally, the scope of the Bill’s measures go further than necessary, for example, by extinguishing customary title. It could be argued that provisions of the Bill are implementing the policy goal of certainty in a way that jeopardises the essence of the right to freedom from discrimination.

Conclusion on Part 4.2: Right to freedom from discrimination

4.43 The Bill in its current form is discriminatory.^[44] In this, we agree with the analysis employed by the Attorney-General in her advice on the Bill.^[45]

4.44 The Commission has formed this conclusion because:

• the Bill places limits on the right of Māori to be free from discrimination under section 19(1) of the Bill of Rights Act (i.e. the Bill is prima facie discriminatory); and
• these limits are neither reasonable nor justifiable under section 5 of the Bill of Rights Act, with the means employed by the Bill to reach the Government’s stated policy objective being neither rational nor proportionate.

4.45 Any goal of greater legal clarity and certainty over the foreshore and seabed in New Zealand will only be achieved through the creation of durable solutions on all aspects of customary rights and customary title, reached by taking a case by case approach to an end supported, as far as possible, by all parties to these matters, and reached through compliance with human rights.

4.46 The Treaty of Waitangi settlement process, and the recent petition concerning the 1982 Citizenship (Western Samoa) Act, illustrate the importance of avoiding actions that create or perpetuate a legitimate sense of grievance in our communities.



PART 4.3: RIGHT NOT TO BE ARBITRARILY DEPRIVED OF PROPERTY: AND COMPENSATION

4.47 The right to be immune from the arbitrary deprivation of property is a human right. Article 17 of the Universal Declaration of Human Rights declares that:

Everyone has the right to own property alone as well as in association with others. No-one shall be arbitrarily deprived of his property.

4.48 Clearly the qualifier for this right is provided by the term ‘arbitrary’, and a prohibition against any arbitrary deprivation of property is included in the First Protocol to the European Human Rights Convention. The American Convention on Human Rights also provides, in Article 21(2), that “no one shall be deprived of his property except upon payment of just compensation”. ^[46]

4.49 While New Zealand’s domestic human rights legislation is silent in relation to arbitrary deprivation of property, other legislation and policy supports the domestic existence of this right - for example, the scheme of the Public Works Act 1981, and the terms of Treaty of Waitangi settlements negotiated by the Office of Treaty Settlements.


Is such a ‘property’ right triggered by the Foreshore and Seabed Bill?

4.50 The Commission considers that there is potential for this property right to be triggered by the Bill. Our reasons for this view are set out in Appendix 6 to this submission.


What is a deprivation of property?

4.51 Deprivation of property “means divesting, keeping out of enjoyment, or causing loss (for example, by taking away, destruction, or by causing extinguishment) of a right.”^[47]


When is a deprivation of property arbitrary?

4.52 The right not to be arbitrarily deprived of property does not preclude restrictions on the use of land, so long as they serve objectives of general public interest, and as long as restrictions do not constitute a disproportionate and intolerable interference with the rights of the owner.

4.53 Arbitrary actions incorporate elements of: occurring without reasonable cause; made without reference to adequate determining principles or without following proper criteria or procedures; inappropriateness; injustice; and lack of predictability.

4.54 With regard to the provisions of the Foreshore and Seabed Bill, the Commission considers that the removal of property rights in a manner which is discriminatory could well be considered arbitrary. Further, the breadth of the definition of some rights, in clause 28(a) of the Bill for example, is so wide as to be potentially arbitrary in application. And lastly, we suggest that the deprivation of an ability to seek customary title at common law is arbitrary, if the deprivation was not necessary. Appendix 7 “The Necessity for the Foreshore and Seabed Bill?: Māori Land Court Statistics” provides a full discussion of necessity.

4.55 The Commission considers that these factors amount to an arbitrary deprivation of property for iwi and hapu.

4.56 We now turn to the question of compensation/redress for a deprivation of property rights – which is closely related to questions of arbitrariness.


Redress / Compensation under the Bill

4.57 Clause 33 of the Bill provides that, once the High Court has recognised customary title - amounting to a proven exclusive use and occupation over part of the foreshore and seabed - and has replaced it with a territorial customary right, the:

Ministers to whom the finding is referred must enter into discussions with the group in whose favour the finding is made; the purpose of such discussions is to consider the nature and extent of any redress that the Crown may give.

4.58 The principles which underlie the right of a person not to be deprived of property without compensation are:

First, that some public interest is necessary to justify the taking of private property for the benefit of the state and. Secondly, that when the public interest does so require, the loss should not fall upon the individual whose property is taken but should be borne by the public as a whole.^[48]

4.59 The Attorney-General, in her advice on the Bill has acknowledged that “the absence of a guaranteed right of redress” in the Bill gives rise to prima facie discrimination.^[49] The Waitangi Tribunal has stated it considers compensation “essential” in response to removal of Māori property rights.

4.60 The Commission believes that once the right holder has been able to prove the existence of customary title, equitable redress (whether as monetary

compensation or in some other form) should be guaranteed to the right holder by the Crown. The inclusion of statutory criteria to guide negotiation with Ministers about redress would appear to be a possible safeguard against arbitrariness (for which South African legislation provides a potential model).

Conclusion on Part 4.3: Right not to be arbitrarily deprived of property, and compensation
4.61 The potential deprivation of property rights on a discriminatory basis, as provided in the Bill, is likely to prove arbitrary. Matters of the necessity for this Bill, and the breadth of definitions, contribute to this view.

4.62 Once the existence of a customary title has been proved, equitable redress by the Crown should be guaranteed to that right holder under the Bill (whether in the form of monetary compensation and/or in some other form). To further avoid questions of arbitrariness, the Bill should include statutory criteria for negotiating redress. Full details of the Commission’s analysis of the right not to be arbitrarily deprived of property, and the right to compensation, are set out in Appendix 6 to this submission.




PART 4.4: RIGHT TO DEVELOPMENT

4.63 Just as all New Zealanders believe they have the right to develop land and property in which they hold property rights, so Māori believe they enjoy such rights in respect of their property. These rights to development, subject to the regulation or qualifications that Parliament may impose, are not only
part of New Zealand common law, but are grounded in international law and in the Treaty of Waitangi.


International instrument

4.64 The UN General Assembly’s 1986 Declaration on the Right to Development^[50] states that:

The right to development is an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realised.

The human right to development also implies the full realisation of the right of peoples to self-determination, which includes, subject to the relevant provisions of both International Covenants on Human Rights, the exercise

of their inalienable right to full sovereignty over all their natural wealth and resources.

4.65 The Declaration calls on governments to assist with the full realisation of these rights.


The Treaty of Waitangi and the right to development

4.66 The Waitangi Tribunal^[51], considering the right to development under Article 2 of the Treaty of Waitangi in relation to fishing, found that:

(a) The Treaty does not prohibit or limit any specific manner, method or purpose of taking fish, or prevent the tribes from utilising improvements in techniques, methods or gear.

(b) Access to new technology and markets was part of the quid pro quo for settlement. The evidence is compelling that Māori avidly sought Western technology well before 1840. In fishing, their own technology was highly developed, and was viewed with some amazement by early explorers. But there is nothing in either tradition, custom, the Treaty or nature to justify the view that it had to be frozen. [emphasis added]

(c) An opinion that Māori fishing rights must be limited to the use of canoes and fibres of yesteryear ignores that the Treaty was also a bargain. It leads to the rejoinder that if settlement was agreed to on the basis of what was known, non-Māori also must be limited to their catch capabilities at 1840.

Māori no longer fish from canoes but nor do non-Māori use wooden sailing boats. Nylon lines and nets, radar and echo sounders were unknown to either party at the time. Both had the right to acquire new gear, to adopt technologies developed in other countries and to learn from each other.

(d) The Treaty offered a better life for both parties. A rule that limits Māori to their old skills forecloses upon their future. That is inconsistent with the Treaty.

4.67 It is generally accepted by the Treaty parties that the Treaty does give Māori development rights to resources. Areas of disagreement relate to the aspects and scope of such a right.^[52]

4.68 In Tainui Māori Trust Board v A-G and Ngai Tahu Māori Trust Board^[53], Cooke P commented that the spirit of the Treaty could require some kind of priority right be given to Māori development.


How does the Bill affect the right to development held by Māori?

4.69 In 2002 the Committee on the Elimination of Racial Discrimination said it remained concerned about the continuing disadvantages that Māori face in their enjoyment of social and economic rights. The Committee urged New Zealand to devote priority attention to this issue and to continue to encourage active and effective participation by Māori in the search for solutions to reduce these disadvantages.^[54] Consequently, serious consideration needs to be given to whether the Bill may have the effect of further disadvantaging iwi, hapu and whanau in respect of the right to development.


Removal of Māori freehold land status for foreshore and seabed

4.70 Clause 10 of the Bill removes the ability of Māori to seek recognition in the Māori Land Court of foreshore and seabed as having the status of Māori customary land, and Māori freehold land (under Te Ture Whenua Māori Act). Any path to seek freehold title for a part of foreshore and seabed is thereby removed. However, those with existing private title to foreshore and seabed are largely unaffected by the provisions of the Bill.

4.71 Clearly the ability to undertake commercial activities is greater if you own the land on which the activity is to occur. There are no questions of access. There is the ability to raise a mortgage (although alienation also becomes a possibility with fee simple title). Without the capacity to gain freehold title to customary foreshore and seabed, iwi, hapu, and whanau may therefore have a reduced ability to undertake economic development in this area.

4.72 However, this distinction will not affect Māori right to development alone, given that all economic development of the foreshore and seabed is regulated in the same way under the RMA. Being a private owner of land is not a protection against the regulation and monitoring of the RMA.


‘Frozen in time’ limits on Māori development in the foreshore and seabed area

4.73 Under clause 46 of the Bill a group of Māori who carry out a recognised customary activity, under a customary rights order, may derive commercial benefit

from that activity. However under clause 42 of the Bill for an activity to be recognised in such an order it:

• must be, and have been, integral to tikanga Māori since 1840;
• must have been carried on in a substantially uninterrupted manner since 1840; and
• been carried on in the “same area” of foreshore and seabed.

4.74 Such ‘frozen in time’ restrictions were critiqued earlier in this submission in relation to Māori culture and the rights of minorities. They appear contrary to the interpretation of Article 2 of the Treaty of Waitangi as set out above. It is possible to envisage a number of economic activities in the foreshore and seabed area, such as harvesting seaweed, gathering sand, gravel and/or rocks, eco-tourism, horse-trekking, and tramping, which could provide commercial benefit to Māori. However these ‘freezing’ restrictions may seriously hinder the ability of Māori to carry out those activities. The Commission queries whether others carrying out economic activities in the foreshore and seabed area are similarly limited in the nature of the commercial activities they can undertake.^[55]

4.75 These limits may unreasonably infringe the right to development of Māori in specific foreshore and seabed areas.


Conclusion on Part 4.4: Right to development

4.76 The Bill in its current form breaches the right to development.

4.77 The changes to the RMA do introduce new layers of connections between iwi and hapu (as holder of ancestral connection and customary rights orders), and government (mainly local authorities). This is in addition to the existing requirements under the RMA for consultation with iwi, and is a
positive step in terms of Māori customary rights being taken into account in any foreshore and seabed development.

4.78 However, in balance against those factors, is the Waitangi Tribunal’s interpretation of development under Article 2 of the Treaty of Waitangi, and that:

• An inability to gain private ownership over customary land may have marked practical effects on the ability of iwi and hapu to develop commercial ventures in the foreshore and seabed – despite the broad application of RMA regulation over all such ventures;
• Iwi, hapu and whanau development activities seem to be running a risk of being ‘frozen in time’ by the 1840 related requirements of the Bill;
• There appears to be no provision for connections which amount to customary title (in the form of territorial customary rights) to specifically be

taken into account when local authorities consider foreshore and seabed development under the RMA;

• There is no indication of the priority to be accorded to customary rights under the RMA.

4.79 In light of these factors, and the Tribunal’s findings, the Bill does not appear to place reasonable limits on the right to development.



PART 5: THE WAYS FORWARD

5.1 In dealing with the foreshore and seabed issue, the challenge facing the Select Committee, and us all, is to continue to deserve Michael King’s optimism about New Zealanders, that:

most New Zealanders, whatever their cultural backgrounds, are good-hearted, practical, commonsensical, and tolerant. Those qualities are part of the national cultural capital that has in the past saved this country from the worst excesses of chauvinism and racism seen in other parts of the world.^[56]

5.2 And words of caution and optimism come from Alison Quentin-Baxter:

The history of our country has left a legacy of ignorance and prejudice about the rights of Māori as the tangata whenua that seems harder to eradicate than some of us had hoped. Still, I have some confidence that, if people are told the facts, asked to agree to outcomes that are as fair as possible to everyone, and feel that what is put to them has the ring of truth, it will be possible to move away from the politics of fear and envy that threaten our society.^[57]

5.3 The Select Committee has a responsibility to make recommendations on the Bill that protect human rights and do not breach the Treaty of Waitangi.


The Commission’s preferred recommendation

5.4 The Commission recommends that this legislation does not proceed until a “longer conversation” has been held with people in New Zealand, to better determine a course of action that will gain broader consent and support. This

preferred course of action supports the same, earlier suggestion of the Waitangi Tribunal. Durable solutions to issues seriously affecting the indigenous people of New Zealand can only be created on the basis of negotiation and agreement.


Subsequent recommendations: Ways to improve the Bill’s compliance with human rights

5.5 In the alternative, should the intention of the Government continue to be the passage of this legislation, we make the following recommendations to address matters in the Bill that do not comply with human rights.


Recommendation 1: Preserve customary title
5.6 The provisions of the Bill should be amended so that full legal and beneficial ownership of the foreshore and seabed vests in the Crown where no customary title for that part of the foreshore and seabed is proven on a case by case basis through the courts. This preserves the possibility of customary title, and would only apply in circumstances where the customary connection with the foreshore and seabed amounts to exclusive group use and occupation. Explicit legislative provision in clause 11 should therefore be made for the concept of Crown ownership to be subject to proven customary title in this manner. The Crown maintains the role of regulating the foreshore and seabed area. The Canadian approach provides guidance.

5.7 For those who can prove customary title, there should be no requirement to get customary rights (i.e. activities) or ancestral connections recognised first, using separate proceedings – as required under the current drafting of the Bill. This current requirement fails to recognise that the heart of the entitlements should flow from a relationship with the foreshore and seabed sufficient to amount to customary title. A special type of customary title could be developed to recognise this connection.^[59] Proven customary title should lead to a guarantee of some primary role and abilities with regard to that part of foreshore and seabed. There is not this level of connection currently in the Bill.

5.8 Any loss of an aspect of customary title should be recognised through guaranteed redress by the Crown, the nature and amount of which to be negotiated with the Crown. In Canada where customary title is infringed, it must pass the Canadian Supreme Court’s “test of justification”^[60] which includes compensation.

5.9 The sub-strata of customary rights relating to customary activities, uses and practices, could continue to be dealt with in the manner as contained in the Bill (but subject to the following recommended changes).

Recommendation 2: Improve status for territorial customary rights holders
5.10 The Commission raises for the consideration of the Select Committee why the recognition of a territorial customary right (when it amounts to a proven exclusive group use and occupation of an area) under clause 29 of the Bill does not result in the holder of the right having a particular status under the RMA. We suggest that such a right, or the proven existence of customary title (as per our Recommendation 1) should at a bare minimum oblige local authorities to consult.


Recommendation 3: Provide guarantee of equitable redress for loss of exclusive customary title in clause 33
5.11 To avoid breaching the right not to be arbitrarily deprived of property, clause 33 of the Bill must be amended to guarantee equitable redress for all such losses of proven customary title. The Commission considers that the inclusion of statutory criteria in the Bill, to guide the negotiations on redress, would be appropriate. South African legislation provides potential models.^[61]


Recommendation 4: Provide avenue of appeal for territorial customary rights applicants
5.12 An avenue of appeal should be provided, so that High Court decisions on whether ‘territorial customary rights’ (and thereby ‘redress’) exist can be reviewed. Given that the territorial customary right is the recognition of the equivalent of customary title (with exclusive use and occupation), fairness of process is vital.


Recommendation 5: Remove ‘fiduciary duty’ from clause 9 of the Bill
5.13 Clause 9 of the Bill sets out the customary rights jurisdiction of the High Court in relation to the foreshore and seabed, limiting it to the provisions of this Bill. Matters so limited include “any claim ...based on the recognition at common law of ... fiduciary duty of the Crown, ...or duties of a similar nature”. Mindful of the Canadian case law on fiduciary duty owed to indigenous peoples,^[62] the Commission queries the effect this exclusion of fiduciary duty claims will have in relation to the Crown’s foreshore and seabed obligations under the Treaty of Waitangi.^[63] We recommend this aspect of the clause is either specifically clarified or removed.

Recommendation 6: Improve the inalienability provisions in clause 12 of the Bill
5.14 Clause 12 allows alienation of the foreshore and seabed by limited means. When the foreshore and seabed to be alienated is subject to ancestral connection orders, customary rights orders, and/or a territorial customary right, there should be a specific requirement for alienation to be in accordance with tikanga.


Recommendation 7: Clarify the ability to protect culturally important sites
5.15 We recommend that clause 21 of the Bill include details about the reasons that might give rise to a restriction or prohibition of access to the foreshore and seabed (for example, due to rahui, or wahi tapu). The Commission also queries whether Māori who have had customary title amounting to exclusive occupation and possession recognised as a ‘territorial customary right’ under clause 29 of the Bill, should also be consulted in relation to such restrictions or prohibitions over relevant parts of the foreshore and seabed.


Recommendation 8: Refine breadth of the definition of customary rights in clause 28(a) of the Bill
5.16 Clause 28(a) of the Bill defines a broad group of customary rights that it is removing, and replacing with a territorial customary right. For example, it includes “rights or titles of a similar kind”. Is there any certainty about what this means in practice? The breadth if this definition appears to raise the potential for an ‘arbitrary’ deprivation of rights.


Recommendation 9: Remove the time limits in the Bill
5.17 Clauses 37 and 58 of the Bill require that applications to the Māori Land Court for ancestral connection and customary rights orders, and to the High Court
for customary rights orders, are time barred after 31 December 2015. These time limits serve no meaningful purpose, and have the capacity to create injustice and grievances. They should be removed from the Bill.


Recommendation 10: Amend requirements relating to 1840
5.18 In order to obtain a customary rights order under either clause 42 or clause 61 of the Bill specific connections with the foreshore and seabed have to be proven to have existed in a “substantially uninterrupted manner” since 1840. This requirement appears to freeze in time iwi, hapu and whanau rights to both enjoy their culture as one which is dynamic and developing, and to realise a right to development in 2004. We recommend that, at a minimum, this requirement in the Bill be amended to recognise activities that are “an exercise in modern form of a pre-contact practice”.^[64]

Recommendation 11: Remove or rephrase the limits on customary connections set by clauses 42(2)(a) and 61(2)(a) of the Bill
5.19 Under these two clauses of the Bill, it is no excuse if a relevant group has been prevented from carrying out their customary activity in a substantially uninterrupted manner since 1840 because of “another activity carried out under an enactment or rule or law”. These clauses have the capacity to compound grievance and injustice - for example, if the group has been substantially prevented from carrying out the activity due to raupatu/land confiscation later shown to be unjust. These limitations should be removed from the Bill, or rephrased to bar such unjust exclusions from the foreshore and seabed being taken into account.

Human Rights Commission
July 2004

^[1] These recommendations are set out in full in Part 5 of this submission.
^[2] Ngati Apa, Ngati Koata & Ors v Attorney-General & Ors [2003] NZCA 117; [2003] 3 NZLR 643.
^[3] Section 5(1) of the Human Rights Act 1993 refers.
^[4] Sections 5(2)(h) and (d) of the Human Rights Act respectively refer.
^[5] Amodu Tijani v Secretary, Southern Nigeria [1921] 2 AC 398, at 402 to 403.
^[6] Alan Ward, An Unsettled History: Treaty Claims in New Zealand Today (Bridget Williams Books, Wellington, 1999) at page 53.
^[7] See further the Māori Land Court statistics in Appendix 7 to this submission.
^[8] Chen & Palmer, Wellington Watch 2003/31, 22 August 2003.
^[9] Delgamuukw v British Columbia [1997] 3 SCR 1010, at paragraphs 112, and 143 to 159.
^[10] Delgamuukw v British Columbia [1997] 3 SCR 1010, at paragraph 147.
^[11] Delgamuukw v British Columbia [1997] 3 SCR 1010, at paragraphs 112 to 115.
^[12] This is called the Crown’s right of pre-emption. This common law rule is to be distinguished from Māori customary views that land should only be alienated in accordance with tikanga.
^[13] Delgamuukw v British Columbia [1997] 3 SCR 1010, at paragraph 111.
^[14] Te Runanganui o ti Ika Whenua Society v Attorney-General [1993] NZCA 218; [1994] 2 NZLR 20.
^[15] The Court of Appeal was clear that the nature and extent of customary rights in the foreshore and seabed should be determined by the Māori Land Court on a case by case basis under Te Ture Whenua Māori Act, stating that “whether in the particular case that will lead to any outcome favourable to the appellants will be for the Māori Land Court after investigating the facts”: Ngati Apa, Ngati Koata & Ors v Attorney-General & Ors [2003] NZCA 117; [2003] 3 NZLR 643, Gault P at paragraph 125.
^[16] Phillip Joseph Constitutional and Administrative Law in New Zealand 2^nd edition (Brookers, Wellington, 2001) at pages 495 to 506. See also pages 291 to 292.
^[17] Waitangi Tribunal, Report on the Crown’s Foreshore and Seabed Policy: Wai 1071 (Legislation Direct, Wellington, 2004), at paragraph 5.3.3, page 144.
^[18] Michael King Being Pakeha Now (Penguin Books, Auckland, 1999), at page 239.
^[19] Extract provided by Dr Alex Frame, University of Waikato, June 2004.
^[20] We note the Attorney-General referred to this as the “extinguishment of the possibility of Māori customary title” over the foreshore and seabed in paragraph 79 of the Attorney-General’s advice, Foreshore and Seabed Bill, 6 May 2004.
^[21] Human Rights and Equal Opportunity Commission (HREOC), Australia ‘Developing human rights principles for resource development on aboriginal land’ at www.hreoc.gov.au/social_justice/corporateresponsibility ; See also HREOC Native Title Report 2003 at page 13. Note also that Māori have made several Communications to the UN Human Rights Committee claiming a breach of their rights under Article 27 of the ICCPR, which provides the Rights of Minorities.
^[22] Paul Rishworth et al The New Zealand Bill of Rights (Oxford University Press, Melbourne, 2003) at pages 410 to 417.
^[23] R v Van der Peet [1996] 2 SCR 507, at paragraphs 2 to 3.
^[24] Hopu v France (CCPR/C/60/D/549/1993) at paragraph 10.3. The UN Human Rights Committee gave ‘family’ a broad interpretation to include all those comprising ‘family’ as understood in the society in question. “Cultural traditions should be taken into account when defining the term ‘family’ in a specific situation”.
^[25] The Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights (4 HRNZ 753, 754). Relevant extracts are set out in Appendix 4 to this submission.
^[26] In Quilter v Attorney-General [1997] NZCA 207; [1997] 4 HRNZ 170, at page 197.
^[27] Moonen v Film & Literature Board of Review [1999] NZCA 329; [2000] 2 NZLR 9 (CA), paragraph 18.
^[28] See also Northern Health Authority v Human Rights Commission [1998] 2 NZLR 218 which speaks to the selection of options with the “least possible interference” with human rights.
^[29] Clause 3 of the Bill refers. The range of reasons for the new legal scheme introduced by the Foreshore and Seabed Bill as set out in clause 3 cover:

• vesting the full legal and beneficial ownership of the foreshore and seabed in the Crown;
• providing for general rights of public access;
• recognises Māori ancestral connection with foreshore and seabed;
• recognises and protects customary (activity) rights over foreshore and seabed;

• enables applications to be made to the High Court concerning rights previously held at common law, and chance to discuss redress.
^[30] See Part 4.2 Right to freedom from discrimination in this submission and Appendix 5.
^[31] The grounds of prohibited discrimination are set out in section 21 of the Human Rights Act 1993.
^[32] For example, Quilter v Attorney-General [1997] NZCA 207; [1998] 1 NZLR 523; Egan v Canada (1995) 124 DLR (4^th) 609; Andrews v Law Society of British Columbia 1989 CanLII 2 (SCC); [1989] 1 SCR 143; Law v Canada (Minister of Employment and Immigration) [1999] I SCR 497; M v H [1999] 2 SCR 577; Lovelace v Ontario [2000] SCC 37.
^[33] Alexkor & Government of South Africa v Richtersveld Community & Ors CCT 19/03 Constitutional Court of South Africa 14 October 2003, at paragraph 99.
^[34] Attorney-General Foreshore and Seabed Bill 6 May 2004, at paragraphs 76, 78 and 79.
^[35] Attorney-General Foreshore and Seabed Bill 6 May 2004, at paragraphs 83 and 84.
^[36] Cooke P in Ministry of Transport v Noort [1992] NZCA 51; [1992] 3 NZLR 260 (CA), at page 278, stated that “[i]Inevitably there comes a point at which basic human rights have to be seen as transcending administrative efficiency or a current phase of opinion. And the Canadian Supreme Court, in Singh v Minister of Employment and Immigration [1985] 1 SCR 177, at page 218, likewise stated that “[c]ertainly the guarantees of the Charter would be illusory if they could be ignored because it was administratively convenient to do so”.
^[37] See for example, Zundel v R [1992] 2 SCR 731, at 762.
^[38] See UN Committee on the Elimination of Racial Discrimination Decision 2(54) on Australia 18/03/99 A/54/18, at paragraphs 6 to 9; and UN Committee on the Elimination of Racial Discrimination Concluding Observations by the Committee on the Elimination of Racial Discrimination: Australia 24 March 2000 CERD/C/56, at paragraphs 8 and 9.
^[39] Speech by Hon Dr Cullen at Human Rights Commission Speaker Forum, ‘Human Rights and the Foreshore and Seabed’, I June 2004, at page 2. Note that clause 6 of the Bill provides public access across and around the foreshore and seabed, after that area has been reached.
^[40] In relation to decisions on ancestral connection orders, and customary rights orders.
^[41] Clause 55(3) of the Bill refers.
^[42] Time limits also raise the attendant issues of resources, for example, whether iwi and hapu are able to afford court proceedings in the time available.
^[43] The Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights (4 HRNZ 753, 754). Relevant extracts are set out in Appendix 4 to this submission.
^[44] The Commission also has some concern about a potential further effect of the Bill’s extinguishment of customary title over the foreshore and seabed – in relation to some negotiated settlements under the Treaty of Waitangi. For example, the Deed of Settlement between Te Uri o Hau and the Crown, 13 December 2000, includes a statement (in clause 1.4) that “nothing in this Deed extinguishes any aboriginal title or customary rights that Te Uri o Hau may have or constitutes or implies any acknowledgement or acceptance by the Crown that such title or rights exist either generally or in any particular case” and that the settlement “is not intended to prevent any Te Uri o Hau Claimant from pursuing claims against the Crown based on aboriginal title or customary rights which do not come within the definition of Te Uri o Hau Historical Claims or to prevent the Crown from disputing such claims or the existence of such title or rights”. We query what such clauses will mean, in any substantive way for any coastal iwi and hapu, should the Foreshore and Seabed Bill be enacted.
^[45] Attorney-General Foreshore and Seabed Bill, 6 May 2004, see paragraphs 83 to 103.

^[46] A similar right is also provided the African Charter on Human and Peoples’ Rights, and the South African Constitution. Note that New Zealand’s UN membership obliges respect for the Articles of the Universal Declaration, and that this property right has been described as an emerging international customary law.
^[47] Nihal Jayawickrama The Judicial Application of Human Rights Law: National, Regional and International Jurisprudence (Cambridge University Press, Cambridge, 2002) at 914, citing Shah v Attorney-General (No 2) High Court of Uganda [1970] EA 523.
^[48] Nihal Jayawickrama The Judicial Application of Human Rights Law: National, Regional and International Jurisprudence (Cambridge University Press, Cambridge, 2002) at 919, citing the Privy Council in Morgan v Attorney-General on appeal from the Court of Appeal of Trinidad and Tobago (1987) 36 WIR 396.
^[49] Attorney-General Foreshore and Seabed Bill 6 May 2004, at paragraph 79.
^[50] UN General Assembly Declaration on the Right to Development 4 December 1986 Resolution 41/128, at Article 1(1) & (2).
^[51] Waitangi Tribunal Report of the Waitangi Tribunal on the Muriwhenua Fishing Claim Wai 22 (1988), at pages 222 to 223.
^[52] Waitangi Tribunal The Radio Spectrum Final Report Wai 776 (1999), at page 41.
^[53] Tainui Māori Trust Board v A-G and Ngai Tahu Māori Trust Board [1989] NZCA 175; [1989] 2 NZLR 513 (CA).
^[54] Committee on the Elimination of Racial Discrimination Concluding Observations: New Zealand A/57/18 paragraph 424, 1 November 2002.
^[55] See also further analysis in Appendix 8 of the Bill’s effect on the right to development held by others in New Zealand.
^[56] Michael King The Penguin History of New Zealand (Penguin Books, Auckland, 2003), at page 518.
^{[57] 58} Alison Quentin-Baxter, Barrister, ‘Submission on Discussion Paper “The Foreshore and Seabed of New Zealand: Protecting Public Access and Customary Rights”’ 24 September 2003, at paragraph 74.
^[59] See also the alternatives canvassed in Appendix 5 to this submission.
^[60] Delgamuukw v British Columbia [1997] 3 SCR 1010, at paragraphs 161 and 162. The test is set out in full in Appendix 3 to this submission.
^[61] The detail is provided in Appendix 6.
^[62] See, for example, Dickson J’s decision on the Crown’s fiduciary relationship with ‘Indians’ and the Crown’s fiduciary obligations in Guerin v The Queen [1984] 2 SCR 335; See also the more recent discussion that the “Crown is subject to a fiduciary obligation to treat the aboriginal peoples fairly” in Delgamuukw v British Columbia [1997] 3 SCR 1010.
^[63] See for example the discussion of the Crown’s fiduciary duty to Māori under the Treaty of Waitangi in New Zealand Māori Council v Attorney-General [1987] 1 NZLR 641 (the “Lands” case).
^[64] Canadian Supreme Court in R v Van der Peet [1996] 2 SCR 507, at paragraphs 2 to 3.