MAOR214: Land and Water 2

Introduction

  • The focus of today's lecture is on the contemporary significance of land and water, particularly in the context of Maori interests.

  • Emphasis on the ongoing nature of Crown acquisition of Maori resources, contrary to some beliefs that it ended in the last century.

  • The discussion includes a historical example related to foreshore and seabed rights, which ties into the current debate regarding water ownership in New Zealand.

Recap of Previous Topics

  • Importance of land and water in Maori culture, encapsulated by concepts like whakapapa (genealogy) and mana (spiritual power or authority) and mauri.

  • Discussion of differing notions of ownership:

    • Traditional Maori understanding vs. contemporary legal definitions.

    • Acknowledgment that water possesses its own identity in Maori culture, complicating ownership.

Ownership of Water

  • No one owns the water

    • Everyone owns the water

      • Some people own the water

  • Three positions regarding water ownership:

    1. National Position: No one owns water (related to historic comments on foreshore and seabed).

    2. Public Good Position: Everyone owns the water as it is a shared resource.

    3. De Facto Ownership: Landowners may claim ownership of adjacent water bodies.

  • Current legislative challenges regarding freshwater ownership yet to be resolved.

    • No government has determined an answer

Foreshore and Seabed Definition

  • Foreshore: The area between high tide and low tide.

  • Seabed: Extends 12 nautical miles from the coast, defined by legal legislation.

  • Overview of legislation that influences marine life and seabed mineral rights, particularly the Crown Minerals Act.

Creation of Law in New Zealand

  • Laws are created through two primary pathways:

    • Acts of Parliament: Formalized laws passed by Parliament.

    • Common Law: Derived from English law established through the treaty process (Te Tiriti).

      • Sometimes Tikanga is recognised

  • The Crown is traditionally recognized as the owner of coastal waters and land.

  • Limited recognition of indigenous rights under English common law, as the High Court historically upheld Crown ownership.

    • Still allows public access

Public Access vs. Private Ownership

  • The Crown's ownership has historically led to the challenge of maintaining public access.

  • Since 1840, Crown has overlooked traditional Maori activities: using foreshore and seabed for recreation, fishing, and cultural practices often overlooked by the Crown.

    • Faishing, battles, burials, seaweed collecting, etc

  • Some parts of the coast have always been privately owned

    • One third deny public access

      • Despite this, the public has feared Maori want to take control of and restrict waterways

Queen’s Chain

  • 20m strip above foreshore and along the edge of coasts, rivers, and streams

    • Used by public for recreation

The Foreshore and Seabed Act (2004)

  • Originates from the 1997 legal application by Ngati Apa to the Maori Land Court for recognition of customary land rights.

    • Sought for the foreshore and seabed in the area to be recognised as Maori customary land.    

      • High Court interviewed before the claim could be heard in the Maori Land Court

  • High Court's Intervention: Ruled that Maori rights to foreshore and seabed were nullified after the land was acquired by the Crown.

  • Court of Appeal Decision (2003): Overturned High Court ruling and asserted Maori rights to be heard in court.

    • Stated that, under Te Ture Whenua Maori Act 1993, Maori have the right to make a case before courts because there may be existing aboriginal title rights to the foreshore and seabed

Understanding Aboriginal Title

  • Article 2 of the Treaty of Waitangi guarantees Maori rights to property and resources, termed as tino rangatiratanga (self-determination).

  • Aboriginal Title: Recognized common law that identifies indigenous rights regarding land. Key factors defining aboriginal title include:

    • Distinguishes between ownership and use

    • Necessary criteria:

      • Continuity of Use: Proof of uninterrupted usage of land.

      • Exclusivity of Use: Requirement that the land is used solely by the claimant, challenging for many Maori given shared practices.

Legal Challenges and Protest Movements

  • Massive protests began in the early 2000s against the Foreshore and Seabed Act, criticizing the government's legal maneuvers.

    • 40k person Hikoi

    • 4k suvmissions on bill

    • UN advocacy for Maori

    • Tariana Turia left Labour to form Te Paati Maori

  • The UN expressed concern regarding Maori rights and the crown’s legal processes.

  • Formation of the Maori Party in response to perceived betrayals by the Labour party by Turia.

Political Responses to Courts

  • The government sought to change laws rapidly to undermine court decisions regarding Maori rights.

  • Labour attempted to pass legislation to prevent courts from going against them, and undermined the Ngati Apa decision made by the Court of Appeal (Siewers, 2004)

    • Such actions are currently still being investigated by the Waitangi Tribunal

  • Foreshore and Seabed Act passed in 2004: Created pathways for limited Maori rights instead of acknowledging full ownership.

  • Eventually repealed and replaced with the Marine and Coastal Areas Act (2011) to offer some form of recognition.

  • In the eyes of the law, if the customary title rights exist, then the government cannot lawfully extinguish these rights, yet they gave

    • If ownership unclear, they must negotiate with Maori

      • Government has executed potential human rights breaches concerning stance of domestic water for both national and international law

  • After National replaced Labour, it was replaced by Marine Coastal Area Act containing similar ideas

Fresherwater Futures

  • International context

    • 844 million people do not have daily access to clean water

    • 2.1 billion dont have access in their homes

    • Women and girls spend estimated 200 million hours hauling water everyday

    • Average woman in rural Africa walks 6km every day to haul 40lbs of water

  • Domestic context

    • Current legislation is inadequate

      • Water bottling consents are all legal, commercial rights seem to carry more weight than human rights

      • Climate change, pollution, land-use, and population changes are already affecting water supplies

‘Natural’ Resources and the Law

  • NZ’s principle legislation for environmental management of natural and physical resources is the Resource Management Act (RMA)

    • Has been amended 18 times since passage in 1991

    • Now 798 pages long, double original length

    • Currently under review

  • Refers to tikanga and Treaty but is not clear about what that means

    • Recognises tikanga Maori S2 RMA

      • S6 Those using resources must recognise Maori and their culture’s relationships with said resources

      • S7 Those using these resources must consider kaitiakitanga

      • S8 Principles of the Treaty must be upheld

    • Overall, full of soft power and does not ensure protection of land and Maori rights

Ongoing Issues with Water Rights

  • Discussions of Maori rights concerning freshwater remain unresolved, with potential violations of human rights due to lack of recognized ownership and access.

  • Mention of the importance of international legal frameworks protecting indigenous water rights.

Legislative Framework: Resource Management Act (RMA)

  • The RMA is New Zealand's principal legislation for environmental management of natural resources and acknowledges Maori values such as kaitiakitanga (guardianship).

  • Provisions to consider Maori culture in decision-making processes aim to address past injustices.

Cultural and Ecological Innovations: The Mauri-o-meter

  • Introduction of the Mauri-o-meter, a decision-making tool developed for assessing Maori well-being and ecological impact in environmental contexts.

    • Decision making framework with four dimensions (environmental, cultural, social, and economic well-being)

    • Assesses changes in mauri

  • The Mauri-o-meter measures outcomes across environmental, cultural, social, and economic dimensions.

  • Maori values determine the nature of the actions take to address the Rena wreck

    • Indicated efforts were insufficient, and there was more to be done to restore the mauri of the area

  • Has been applied in other contexts (Yangtze River), demonstrating how such ideas can be applied and help in alternative contexts

Maori Influence on Environmental Policy

  • Maori values are starting to reshape environmental policy and advocate for a more integrated approach to environmental stewardship.

  • Current legislation reform remains a focal point in addressing the complexities and needs of Maori and non-Maori populations alike.

Conclusion

  • A call for reflection on our national relationship with water management and environmental collaboration.

  • Encouragement of a continued dialogue regarding co-governance and the integration of Maori perspectives into New Zealand’s environmental laws.

  • Recognition of systemic challenges facing Maori claims and rights, and the need for equitable solutions moving forward.