Tuesday, September 14, 2010

Marine and Coastal Area (Takutai Moana) Bill

The legislation to repeal and replace the Foreshore and Seabed Act is due to have its first reading this week.  The new Marine and Coastal Area (Takutai Moana) Bill will essentially give effect to the government’s preferred option for addressing foreshore and seabed issues, as signalled in the discussion document released at the end of March this year.
I have argued in previous posts that the recent proposals indicate that there has been no change in the Government’s attitude to Maori interests in the foreshore and seabed since the enactment of the Foreshore and Seabed Act.  Neither does this Bill indicate any such change.  Unfortunately, the Bill maintains many of the discriminatory aspects of the Foreshore and Seabed Act.  It still, explicitly, treats Maori interests as a lesser form of title than freehold title.  Until the Government’s attitude to Maori customary interests changes, it is going to be difficult to achieve a durable resolution of these issues and impossible to achieve one that is just.
Moana Jackson has pointed out many of the discriminatory aspects of the Bill in his latest primer on the subject.  There are other, often connected, aspects of the Bill which appear to me to be extremely problematic. For example, I find it strange that the new, statutory, “customary marine title” only exists where a particular part of the foreshore and seabed has been exclusively used and occupied, and yet the title itself does not provide for such exclusive rights.  Surely, if the exercise of customary rights is demonstrated by exclusive use and occupation, then exclusive use and occupation ought to be able to be recognised under this new form of customary title.  Alternatively, if exclusive use and occupation is not part of customary title, why would you need to prove exclusive use and occupation to have that title recognised?  If nothing else, this suggests that the legislative “customary marine title” is to be quite different from common law customary or aboriginal title, as applied in places such as the United States and Canada, where the general principle has long been to give legal recognition to the customary rights and activities that can be identified and demonstrated.  The Foreshore and Seabed Act may have already taken us down that road, but this is another indication that the general direction of that Act is being maintained by the Marine and Coastal Area (Takutai Moana) Bill.
I am also pretty under-whelmed by the way that mana tuku iho has been recognised.  The explanatory note states that “the mana tuku iho of iwi and hapū is explicitly recognised in the Bill”, though the only reference to mana tuku iho in the Bill is contained in Clause 4, which sets out the purpose of the legislation.  This may be symbolically important, which is not to say that this inclusion in the purpose provision has no teeth whatsoever.  In any case, as I have previously suggested, even primarily symbolic changes may help to open up a more productive discussion of Maori interests in the foreshore and seabed, However, the fact that this reference is not supported by more specific provisions, laying out some of the practical effects of the recognition of mana tuku iho suggests that the Government is not yet ready to engage in that more productive discussion.