The United Nations Office of the High Commissioner for Human Rights and the New Zealand Human Rights Commission Asia-Pacific Regional Workshop on the Declaration on the Rights of Indigenous People has just started and Tariana gave the opening address. It is a very good speech and within it Tariana outlines her view on the Foreshore and Seabed Act repeal and the new Bill. Good discussion is about understanding others point of view, so in that spirit i will reproduce some of Tariana's statements.
Ngati Apa asked whether the Court had jurisdiction to consider whether land in the foreshore and seabed had customary land status. The Court of Appeal upheld the finding of the Maori Land Court that yes, the Court, did indeed, hold that jurisdiction; and Maori had every right to go to Court to seek or protect common law property rights – customary title.
In lightning-quick time the former Government passed the Foreshore and Seabed Bill Act in 2004 which extinguished customary title – meaning no whanau, hapu or iwi could seek customary title.
And then the floodgates opened.
A hikoi of approximately 40-50,000 marched against the legislation outside Parliament. There was national criticism of the legislation by the Waitangi Tribunal who found the policy breached the Treaty of Waitangi and various representatives of the United Nations criticised the Act for its discriminatory effects.
Six years down the Track, we are on a path determined to repeal that 2004 Act, but also to restore the ability for customary title to be recognised.
And so the 2010 Bill explicitly recognises the enduring mana-based relationship of iwi and hapu to the marine and coastal area in their rohe through the automatic award known as mana tuku iho. Maori do not have to prove anything in order to achieve this recognition, it is theirs by right as tangata whenua; people of the land.
But the Bill goes further, to incorporate tikanga as a key element in the test for customary title and allow for differences in tikanga from group to group.
The inclusion of tikanga in the Bill allows a protected customary rights holder to delegate or transfer the rights in accordance with traditional practices. The Bill also explicitly allows for customary practices to evolve over time. Both of these developments recognise and allow for the evolving nature of customary rights.
There are other initiatives in this Bill which set out a new expectation of how indigenous rights can be considered in the statute. One in particular, is around the burden of proof.
The 2004 Act required Maori to prove extinguishment of customary title had not occurred. Proving something had not happened over a 170 year period was a significant burden on Maori. The 2010 Bill places that burden on the Crown. If the Crown cannot prove extinguishment then customary title will be recognised (provided the other elements of the test are met).
I wanted to set out this example in some depth because I think it comes back to that spirit of self-determination.
We wanted to see the shared burden of proof, and the notion of customary jurisprudence embedded within the bill because it is inherently setting out a new way of indigenous interaction with the state, based on principles of justice, democracy, and the promotion and protection of indigenous rights.
This is, however, just one of many legislative and policy challenges which we must apply ourselves to in upholding the aspirations of the Declaration.I have left that section in, in full because it shows the thinking. There are many excellent passages in Tariana's speech - go and have a read here.
I am not sure about the paragragh above where Tariana says that the crown has to prove extinguishment of customary title - that is not my understanding at all - but perhaps the line - (provided the other elements of the test are met) tells the real story.