Māori react very strongly to government announcement of proposed confiscation of foreshore and seabed
2003–04 was a year of massive upheaval for Māori. In June 2003 the New Zealand government announced its intention to legislate to confiscate the country’s foreshore and seabed from Māori.1 At the time there was a furious and uncharacteristically united outcry from Māori.2 The levels of anger amongst Māori against the government on this issue increased over the next year as the government refused not only to back down but also to enter into any meaningful consultation or dialogue with those who would be directly affected, the numerous coastal whānau and hapū,3 many of whom had had rights to their own particular areas of the coast for many hundreds of years.
Māori opposition highly organised – government steps up anti-Māori propaganda campaign – Tariana Turia resigns
Māori organised their opposition with unprecedented levels of cooperation while the government tried desperately to undermine them, issuing propaganda which warned that if Māori ownership was recognised, Māori would block off access to the country’s beaches and sell them all off to the highest bidder.4 The government’s proposal,5 then the policy6 and finally the legislation7 came under sustained attack as Māori used every forum, strategy and mechanism they could identify to try to have it removed. This included mounting the biggest protest march ever seen in this country.8 They also attacked the male Māori members of the Labour government caucus, including the Minister of Māori Affairs, labeling them as traitors when they eventually supported the legislation and ignored the clear and unequivocal instructions of their constituents. Two Māori women members of government who opposed the legislation drew huge support from Māori.9 When one of them, Tariana Turia, resigned from Parliament, forcing a by-election, voter turnout was unusually high, even though none of the main political parties stood any candidates. After setting up and co-leading the new Māori Party, Turia took 92 percent of the vote, returning triumphantly to Parliament with a new mandate.10
Government refuses to listen to Māori and continues pushing through legislation
But the government remained resolute and determined to pass its foreshore and seabed legislation into law well before the 2005 general election, launching attacks on Māori leaders and several judges in an attempt to deflect their criticisms.11 Opposition parties, except for New Zealand First, opposed the legislation but made it very clear that they were not doing so to support Māori retaining their legal entitlements. The only party in Parliament that supported Māori was the Greens. And in the midst of the foreshore and seabed turmoil, highlights on the Māori calendar such as the successful launching of the long-awaited Māori Television Service in March 2004, the nomination of Keisha Castle-Hughes to win an Academy Award for her role in Whale Rider and then the launch of the Māori Party were all seized on by Māori to assist them in their battle to stop the government proceeding with their foreshore and seabed legislation.
Court of Appeal’s decision in Marlborough case upholds Māori rights
The government decision to legislate to remove Māori rights to the foreshore and seabed was a knee-jerk reaction to the Court of Appeal’s unanimous decision in the Marlborough case.12 The decision was issued on 20 June 2003 and indicated that the Crown’s assertion of its ownership of the country’s foreshore and seabed was not correct and that the Māori Land Court had the jurisdiction to investigate the status of that land and determine whether it is customary Māori land. The decision upheld domestic law (The Māori Land Act), English common law (which recognises that when the English colonise another country, indigenous peoples’ ‘customary rights and title’ to their lands remain and cannot be extinguished in times of peace without their consent), and international law (in respect of the rights of indigenous peoples). The decision brought huge, albeit very temporary relief for coastal whānau, hapū and iwi throughout the country. After 134 years of pursuing ownership of the foreshore and seabed through the courts,13 blockages were now removed and the court could investigate Māori property rights claims, including ownership.
Foreshore and seabed legislation removes Māori rights while preserving non-Māori rights – a declaration of war
Yet four days later, in a move that showed flagrant disregard for all constitutional conventions and due process, the New Zealand government announced that it would legislate to stop all New Zealand courts considering cases already before them on the matter. The legislation would overrule the decision of the Court of Appeal and vest complete and absolute ownership in the Crown,14 confiscating it from the whānau and hapū throughout the country who held mana whenua15 and hence ownership of them. However the government would protect any non-Māori interests in the foreshore and seabed. So the harbour boards, port companies and an increasing number of private individuals, many of which were foreign investors and speculators, would not have their property rights removed. Such a blatantly racist approach meant that the government was effectively singling out Māori and declaring war on them. The Māori response was immediate and unanimous. There was complete opposition to and abhorrence of what the government was suggesting. But for Māori it was also simply history repeating itself. In the 1860s the government had legislated to confiscate Māori land in order to satisfy settler greed for Māori land and resources.16 Predictably it led to the New Zealand land wars. This was no different. And the ease with which the government could flout fundamental constitutional norms, domestic, common or international law took legal scholars by surprise and brought into question the sanctity of the rule of law.17
Reality of Māori marginalisation – Māori MPs bow to Labour pressure and betray their constituents
However, the powerlessness and marginalisation of Māori within the New Zealand Parliament was clearly on display as their increasingly angry protests went unheeded. By August the government had published its proposal.18 In December its policy was released.19 In April 2004 the Foreshore and Seabed Bill was introduced into the House. In July, a parliamentary Select Committee started hearing submissions on the Bill, scheduled to report back by November. And although all ten government MPs who had declared their Māori background strenuously opposed the proposed confiscation when it was first announced,20 Māori were stunned and mystified when all but two of them were subsequently persuaded to support it. Their support, along with the belated support of New Zealand First, would ensure its safe passage through Parliament. It was as a direct result of these betrayals that the Māori Party was set up, with a mandate that the clearly articulated wishes of the people must take precedence over the wishes of the party.21
Pākehā racism unashamedly displayed
After the government’s announcement, it did not take long for the sinister, anti-Māori under-belly of the Pākehā population to display itself as reports of a poll indicated that most were happy to support the legislation.22 They were happy, it seemed, for the Crown to take ownership of the foreshore and seabed regardless of the strong Māori interests already there, or the fact that the Crown had been unable to prove that it owned it in the Court of Appeal. This theft by legislation was an easy way of getting a very substantial resource for free. After all, the high standard of living enjoyed by the great majority of Pākehā New Zealanders has always depended on them being able to gain access to Māori land and resources at little or no cost, regardless of how unfair and unjust that may be for the Māori owners or the fact that most of those acquisitions were illegal. Just when Māori were hoping that the Treaty claims processes were finally signaling an end to such discrimination, it was being re-embarked upon with even greater vigor and determination.
National Party leader exploits racism – Brash’s Ōrewa speech
The Opposition recognised the growing Pākehā backlash against Māori and were quick to exploit it. To his considerable political advantage, the leader of the National Party and the Opposition, Don Brash, promised, in a widely reported and controversial speech to conservative Pākehā businessmen at Ōrewa in January 2004,23 to abolish ‘special privileges’ for Māori. He portrayed the Waitangi Tribunal as delivering privileges to Māori, deliberately misrepresenting its role of identifying breaches of the Treaty of Waitangi and recommending strategies for removing the prejudice caused. When Māori and the media asked him to identify the ‘special privileges’, it did not seem to matter that he could not do so. His ratings in the opinion polls continued to climb and he seemed to be able to ignore the fact that both history and the statistics show that it is Pākehā who enjoy substantial privileges in New Zealand, and that Māori and their Pacific Island relations are overwhelmingly New Zealand’s most disadvantaged. When his spokesperson on Māori Affairs and the only Māori in the National Party caucus, Georgina te Heuheu, was unable to support her leader’s attacks she was sacked and replaced by the deputy leader, who was happy to launch even harsher attacks on Māori.24 The attacks were unashamedly and openly racist and the long-held pretence that most Pākehā New Zealanders do not harbour racist attitudes towards Māori could no longer be sustained. And so they attacked one of the country’s foremost and internationally acclaimed entertainers, Bic Runga, when she told an Irish newspaper in March that New Zealand can be a racist country and that racism was a constant feature of her childhood in Christchurch.25
National Party Māori bashing gives government excuse to cut funding for Māori programmes
The National Party’s success in attacking Māori was quickly picked up by the government, the Prime Minister announcing her own ‘review’ of Māori programmes.26 In fact the government had already started withdrawing funding from Māori programmes, so the Opposition attack allowed the withdrawal to proceed more expeditiously. Most Māori programmes would have difficulty surviving without government assistance. Lack of government funding for Māori Television Services threatened to prevent it going to air. A bank loan of $13 million was organised to pay for its studios and the service went to air on 28 March 2004, enjoying good reviews from all commentators.27 One of its very few detractors was the National Party, which promised to close it down.28 But a poll taken in June indicated good support for the service, with non-Māori making up 65 percent of its audience.29 The service is unashamedly supportive of Māori and often very critical of the government. It also maintains very high standards in both the quality of its service and its professionalism.
Māori Television, now finally launched, helps in the battle against foreshore and seabed legislation
Māori leaders were relying in part on the media in their battle against the government’s foreshore and seabed legislation, and the Māori Television Service was a welcome addition to their resources. Since July 2003 they had been organising hui and running information campaigns to keep Māori and the general public fully informed on the issue. Within three weeks of the government’s first announcement they had convened a national hui to discuss the issue. The resolutions from the 1000-strong gathering of iwi from throughout the country issued very strong warnings to both the government and all Māori MPs not to attempt to extinguish or redefine Māori customary title or rights. Representatives returned home from the meeting to inform their communities of the outcomes and to seek instructions on measures to be taken to resolve the problem. Hui were convened by iwi groups throughout the country and a second national gathering was held at the end of August.
A national Māori collective to fight the foreshore and seabed legislation – Te Ope Mana a Tai
That hui established a collective called Te Ope Mana a Tai, a name which translates approximately as ‘the group which holds paramount authority for the coast and seas’. It was made up of tribal leaders, legal advisors (including judges), policy analysts, media experts and other professionals. It was headed by the iwi who had won the Court of Appeal decision and included representation from most other coastal iwi. Its mandate was to gather and disseminate information to Māori and the general public, and carry out work on behalf of Māori on this issue. The group undertook an extensive publicity campaign in an attempt to inform the country of the seriousness of the issue and to counter the misinformation being disseminated by the government that Māori would close off access to the country’s beaches and sell them if their ownership was given legal recognition. Te Ope Mana a Tai also relied heavily on decisions from the many local and regional hui convened to discuss the matter and three further national hui that they convened. Other important means of keeping people informed, of strategising and of seeking support of non-Māori included a website (www.teope.co.nz), email groups, teleconferencing, public and conference presentations, university seminars and lectures, advertising through pamphlets, posters and education packages, meeting with Ministers and other MPs, supporting the national Hīkoi, Māori radio and mainstream news media. Several iwi also presented formal complaints before several United Nations committees responsible for human and indigenous peoples’ rights.
Waitangi Tribunal upholds country-wide claims against foreshore and seabed policy …
In October Te Ope Mana a Tai led a claim to the Waitangi Tribunal against the government’s foreshore and seabed policy. One hundred and forty-nine claimants representing almost every coastal tribal group around the country pooled their resources and expertise to bring the claim under urgency. In March the Tribunal reported, upholding the claims and issuing very serious warnings to the government of the foolhardiness of proceeding in the manner announced in the policy. One commentator noted that the report ‘is damning of the Crown framework policy, using some of the strongest language seen in a tribunal report to date.’30 The Tribunal noted that the government’s policy contains numerous breaches of the Treaty of Waitangi, adding that ‘the Government’s unilateral decision to do away with these Māori property rights … could only be justified if chaos or disorder would result if there was no intervention, or if we were at war or facing some other crisis.’31 It also strongly urged the government to act in fairness, recommending that the government go back to the drawing board and engage Māori in proper negotiations. There was no need for the government to implement any policy, the law should be allowed to take its course.
… And the government ignores the Tribunal, yet again …
Yet on the day the Tribunal released its Foreshore and Seabed report the government announced that it had already rejected the report.32 Matters covered in the accompanying press release bore little resemblance to the content of the Report and there was speculation that the government had not even bothered to read it. The government had rejected all recent findings of the Tribunal.
… And the Prime Minister breaks even more fundamental constitutional rules and attacks a Māori judge
Many iwi had also applied to the Māori Land Court to have their cases to their own foreshore and seabed heard as soon as the Court of Appeal decision was issued. However, when it proceeded to process the case in one district in March 2004, the Prime Minister ignored constitutional convention and launched a stinging public attack on the judge hearing the case, demanding that she not hear it because she was from the same tribe as the applicants.33 While it would be unheard of for a politician to launch a personal attack on a non-Māori judge, it seemed to be acceptable to attack a Māori judge. The judge formally reprimanded the Prime Minister in her decision.
Last resort: a 50,000-strong protest march – the Hīkoi
It was the government’s ongoing refusal to listen to any Māori advice or to consider the Waitangi Tribunal’s recommendations that led to the biggest and most successfully organised protest march ever witnessed in New Zealand. It was called the Hīkoi. Whānau, hapū and iwi from throughout the country, with their colorful tribal banners and flags, joined it on its way from Te Rerenga Wairua in the very Far North, starting on 22 April, and ending in Parliament grounds in Wellington on 5 May. The numbers of people who mobilised in the regions throughout the country were unprecedented. The Hīkoi itself was highly disciplined, yet good-natured, and a dignified stance was maintained throughout. Police reported experiencing no trouble and there were no arrests.34 While many New Zealanders had become confused on the issue, the clear message of the Hīkoi was that the foreshore and seabed legislation was badly wrong and must be withdrawn from Parliament. Māori simply would not tolerate yet another Treaty breach which was so clearly illegal, immoral and unjust.
On the final day of the Hīkoi through Wellington to Parliament, the unofficial best police estimate was that there were more than 50,000 participants including the several thousand kaumātua who awaited its arrival at Parliament.35 The government tried desperately to play down both its size and impact, claiming that there were only 15,000 participants and that it was a reaction to the leader of the Opposition’s attack on Māori. However while media reports were hugely varied on the size, ranging between 10,000 and 30,000,36 they were very clear on the message. All media reports described the march as a protest against the government’s foreshore and seabed legislation. The media coverage was extensive, both locally and nationally. It also attracted significant international media attention.
Prime Minister calls marchers ‘haters and wreckers’ and says she prefers the company of sheep
The Prime Minister’s constant criticisms of the Hīkoi over the two weeks it took to wend its way to Wellington simply fuelled the determination of the participants to deliver a clear and unequivocal message. As the numbers swelled, she referred to the participants as ‘haters and wreckers’, telling the media she preferred the company of a sheep to that of iwi representatives leading the march.37 Yet even she was unable to ignore the Hīkoi. Television cameras caught her watching it from the window of her office as it completely filled Parliament grounds.38 Many participants could not get into the grounds and remained outside on the surrounding roads and pathways to listen to the speeches of Māori leaders, including Tariana Turia, that were broadcast from inside the grounds.
1 Young, ‘Quick Move Blocks Maori bid to Claim Rights Over Seabed’.
2 Mutu, ‘Research Ethics Associated with Treaty of Waitangi Claims’, p. 160.
3 Mutu, ‘Research Ethics Associated with Treaty of Waitangi Claims’, p. 163.
4 This received extensive coverage and commentary in a wide range of media including the New Zealand Herald, 11 August 2003, 18 August 2003, 6 September 2003, 9 December 2003; MG Business, 4 August 2003; New Zealand Listener, 9 August 2003; ZBNews interview with prime minister, 11 August 2003; Radio New Zealand interview with leader of the Opposition, 11 August 2003; Nelson Mail, 15 August 2003; Horowhenua-Kapiti Chronicle, 14 August 2003; Dominion Post, 16 August 2003.
5 Department of the Prime Minister and Cabinet, 2003, The Foreshore and Seabed of New Zealand: Protecting Public Access and Customary Rights: Government Proposals for Consultation, Wellington, New Zealand Government.
6 Office of the Deputy Prime Minister, 2003, Foreshore and Seabed: A Framework, Wellington, Office of the Deputy Prime Minister.
7 The Foreshore and Seabed Act 2004.
8 Mutu, ‘Research Ethics Associated with Treaty of Waitangi Claims’, p. 163.
9 Ruth Berry, 2004, and Ainsley Thomson, ‘Government Faces Second Defection’, nzherald.co.nz, 4 May 2004.
10 Ruth Berry, 2004(b), ‘Māori Party Victors Turn Their Fire on Labour’, nzherald.co.nz, 12 July 2004.
11 See, for example, from nzherald.co.nz, Ruth Berry, 2003(a), ‘Maori MPs Could Revolt Over Government Foreshore Plan’, 19 August 2003; Ruth Berry, 2003(c), ‘Clark Rebukes Turia Over Foreshore Speech’, 16 December 2003; Ruth Berry, 2003(b), ‘Angry Voices Won’t be Far From Foreshore Hui’, 4 September 2003; Ruth Berry, 2003(d), ‘Iwi Leaders Call for Foreshore Protests’, 19 December 2003; Daily Post (Rotorua), 2004, ‘Te Arawa Hit Back at PM’s Hikoi Comments’, 4 May 2004.
12 The case of ‘Ngati Apa, Ngati Koata, Ngati Kuia, Ngati Rarua, Ngati Tama, Ngati Toa and Rangitane and Another v The Attorney-General and Others’, CA173/01, 19 June 2003, which was subsequently reported as Attorney-General v Ngati Apa [2003] 3 NZLR 643 (CA), has become known as the Malborough or the Ngāti Apa case.
13 Richard Boast, 2007, ‘Foreshore and Seabed in New Zealand Law: A Legal-Historical Introduction’, in C Charters and A Erueti (eds), Māori Property Rights and the Foreshore and Seabed: The Last Frontier, Wellington, Victoria University Press, pp. 14–29.
14 Young, ‘Quick Move Blocks Maori Bid to Claim Rights Over Seabed’.
15 Mana whenua can be (very simplistically) defined as power, authority, control and responsibility derived from the gods for a particular area of land.
16 See, for example, the reports of the Waitangi Tribunal which inquire into confiscations in the 1860s: the Taranaki Report (1996), and Waitangi Tribunal, 1999(a), The Ngati Awa Raupatu Report (Wai 46), Wellington, Legislation Direct, http://www.waitangi-tribunal.govt.nz/reports/
17 Kerensa Johnston and Nin Tomas, 2003, ‘Who Owns the Foreshore and Seabed of Aotearoa’, New Zealand Law Review, pp. 462–83; FM (Jock) Brookfield, 2003, ‘Maori Customary Title to Foreshore and Seabed’, New Zealand Law Journal, August 2003, pp. 295–7; Jacinta Ruru, 2004, ‘A Politically Fuelled Tsunami: The Foreshore/Seabed Controversy in Aotearoa me te Waipounamu/New Zealand’, Journal of the Polynesian Society, vol. 113 no. 1, pp. 57–72; Waitangi Tribunal, 2004, Report on the Crown’s Foreshore and Seabed Policy (Wai 1071), Wellington, Legislation Direct, http://www.waitangi-tribunal.govt.nz/reports/; MLR, March 2004, pp. 1–12; MLR, May 2004, pp. 1–6; Charters and Erueti, Māori Property Rights and the Foreshore and Seabed.
18 Department of the Prime Minister and Cabinet, The Foreshore and Seabed of New Zealand.
19 Office of the Deputy Prime Minister, Foreshore and Seabed: A Framework.
20 2003, ‘Revolt by Maori MPs Over Foreshore’.
21 See the Māori Party website, http://www.maoriparty.org/index.php
22 2003, ‘Majority Opposed to Customary Ownership’, nzherald.co.nz, 18 August 2003.
23 Don Brash, 2004, ‘Nationhood’, speech to the Orewa Rotary Club, http://www.scoop.co.nz/stories/PA0401/S00220.htm
24 Ruth Berry, 2004(a), ‘No Surrender Vows te Heuheu as she Loses Role’, nzherald.co.nz, 4 February 2004.
25 2004, The Belfast Telegraph, 26 March 2004.
26 2004, ‘Clark to Take Another Look at Maori Policies’, nzherald.co.nz, 24 February 2004.
27 Walker, 2004, Ka Whawhai Tonu Matou, p. 402.
28 Diana McCurdy and Renee Kiriona, 2004, ‘Te Reo Comes to Prime Time’, nzherald.co.nz, 27 March 2004.
29 Jon Stokes, 2004, ‘Non-Maori Fans of Maori TV’, nzherald.co.nz, 25 June 2004.
30 MLR, March 2004, p. 1.
31 Waitangi Tribunal, Report on the Crown’s Foreshore and Seabed Policy, p. 108.
32 Audrey Young, 2004, ‘Tribunal Report Disappointing and Flawed, Says Cullen’, nzherald.co.nz, 8 March 2004.
33 Linda Te Aho, 2010, ‘Judicial Creativity’ in Malcolm Mulholland and Veronica Tawahi (eds), Weeping Waters: The Treaty of Waitangi and Constitutional Change, Wellington, Huia Publishers, p. 122; Ruth Berry, 2004, and NZPA, ‘Helen Clark Hits Out at Judge over East Coast Claim’, nzherald.co.nz, 13 March 2004.
34 NZPA, 2004(a), ‘Protestors Bring Capital’s Traffic to Standstill’, nzherald.co.nz, 6 May 2004.
35 New Zealand Police, personal communication. On the instructions of the government the published police estimates were much lower.
36 NZPA, 2004(b), ‘Hikoi Estimates Range From 10,000 to 30,000’, nzherald.co.nz, 6 May 2004.
37 2004, ‘Reality Check’, nzherald.co.nz, 8 May 2004.
38 Māori Television Service, Te Kāea, 5 May 2004.