-------- Original Message --------
Subject: Fw: foreshore and salmon
Date: Wed, 30 Jul 2003 12:23:40 -0400
From: "Russell Diabo" <rdiabo@...
----- Original Message -----
From: Boyce Richardson <mailto:brich@...>
To: Russell Diabo <mailto:rdiabo@...>
Sent: Wednesday, July 30, 2003 10:27 AM
Subject: Re: foreshore and salmon
The following piece appears today on Boyce Richardson's personal web
site, Boyce'sPaper (magma.ca/~brich):
July 30 2003
In Canada and New Zealand, major efforts are underway to undermine
Aboriginal rights entrenched by law
What happens when a dominant majority, for once, leans over in its
attempt to bring some kind of justice to a minority group? Two
interesting cases have emerged, in Canada and New Zealand, about exactly
Both suggest that the idea of restoring to Aboriginal groups some of the
resources that were stolen from them in earlier generations (and which
the law of the land has recognized they have a right to) quickly runs
into irredentist objections from the people who have been making use of
those resources, and don't wish to acknowledge that they have been using
First, the Canadian case:
In the early nineties the Dickson Supreme Court issued the Sparrow
judgment, which reognized that natives had the constitutional right to
fish along the Fraser river, in British Columbia, "for food and
ceremonial purposes". (Aboriginal rights, one should add, are
guaranteeed in the Canadian constitution, and other court decisions have
decreed that other laws should not be allowed to infringe these rights,
and that in case of conflict, the Aboriginal perspective should have
The Conservative government of the time introduced what is called the
Aboriginal Fisheries Strategy, under which Aboriginal fishermen were
given the right to fish for salmon on the Fraser in a limited native-run
commercial fishery. From the beginning this was opposed by non-native
fishermen, even though the native fishery was opening something less
than one per cent of the Canadian salmon harvest to them.
Finally, one of these groups took the matter to court under the Charter
of Rights and Freedoms, arguing that they (the majority) are
discriminated against, and that the government is supporting racial
discrimination by excluding non-natives from the fishery.
Last week a BC Provincial Court judge, William Kitchen, found in favor
of the majority and declared the native fishery unconstitutional, and an
affront to the equality provisions of the Charter.
My comment on this is that this judgment strikes at the very heart of
Canada's recognition of Aboriginal rights as guaranteed in the
constitution. Either Aboriginal people have rights arising from their
prior occupancy of the land (as accepted by the courts), or they don't.
If Judge Kitchen's argument is accepted, any recognition of Aboriginal
rights could be attacked on the grounds that it discriminates against
those who don't have such rights. It is weird, twisted thinking that
accords to the majority (who have a long record of having themselves
discriminated against native people) recognition that they are being
discriminated because a minority are granted their legal rights.
Now the New Zealand case:
New Zealand is wracked by an argument over the ownership of the
foreshore. This is part of the same process that is happening in Canada,
the belated recognition by the majority of the legal rights of the
minority. But, the issue has elicited the same result: protest by at
least some of the majority population against the granting of special
rights to the minority. The following three articles explain the New
Zealand situation with startling clarity:
First, the protest:
500 march against Maori claims to foreshore, seabed
28 July 2003
More than 500 people marched along Trafalgar St in central Nelson today
in protest over the issue of Maori claims to the foreshore and seabed.
Carrying placards saying "Whites have rights too", "When do we stop
giving?" and "one law for all New Zealanders", the march left Wakatu
Square shortly after noon.
Chanting "foreshores for all", the protesters marched to the Church
Steps, where they heard speeches from organisers, United Future leader
Peter Dunne and Nelson MP Nick Smith.
"This is a great turnout. I'm rapt. Thank you very much. You are going
to make a difference," one of the organisers, Dennis Wells, told the
The protest was organised by United Future members after the Court of
Appeal ruled that the Maori Land Court could hear claims for customary
title over the foreshore and seabed. Another of the organisers, Gray
Eatwell, brought a copy of the Bill of Rights Act. He told protesters
that it gave New Zealanders equal rights and provided that "no court
shall override this act".
"It is high time the Government realised that," he said.
Port Nelson chief executive Jim Williamson was among those marching, but
said he was there in a "personal capacity".
When the protesters reached the Church Steps, they were met by a man
carrying a patu, or short weapon. He brandished it over Mr Wells' head
from the steps before stepping back to listen to the speeches.
A Nelson group opposed to genetic engineering had put its own banner at
the top of the steps, but was forced to take it down after the crowd
members objected. The group later raised it again.
Mr Dunne said: "We in this country pride ourselves on our free and open
access to the great outdoors."
On those occasions when the country united behind sports teams such as
the All Blacks and Silver Ferns, "we are New Zealanders, we are not
Maori New Zealanders, European New Zealanders, Asian New Zealanders, or
Pacific New Zealanders. On those occasions we were all together for the
Dr Smith earlier urged hobby groups to get behind a National Party
petition against Maori seabed and foreshore claims, saying they could
face restricted access and increased costs if the claims proceed.
The National Party launched the paper petition after receiving strong
support on a website petition calling for the Government to claim
exclusive Crown ownership of the foreshore and seabed.
Dr Smith said the response to the website petition had
been "phenomenal", with more than 40,000 e-mail signatures since it was
launched last Tuesday.
"This is a world record. But there are tens of thousands of New
Zealanders who do not have access to the web who also want to send a
message to the Government."
The petition is now available from Dr Smith's Nelson office. It
had "very strong support" from the Nelson Yacht Club and there were
plans to mail copies out to other local boating, fishing, yachting and
recreational groups, the MP said.
Hobby groups faced issues such as loss of free access and paying rent
for clubrooms that were on the foreshore, he said.
"Ordinary New Zealanders, who have shown a huge degree of tolerance to
treaty claims and spending on Maori issues, have had enough," he said.
"The foreshore and seabed claim by Maori has become a line in the sand
that New Zealanders do not want to cross."
Dr Smith said there would also be ramifications for the fishing
industry, but companies such as Sealord were "appropriately" not taking
part in debate over the issue.
"Sealord is in a very difficult position because they're 50 percent
owned by the Maori Fisheries Commission and the Treaty of Waitangi
Fisheries Commission has funded the whole claim."
Senior government ministers are negotiating with the Maori MPs to find
what the Government describes as a "win-win" solution to the situation.
Dr Smith said the answer to the issue was "very simple", and the
Government should pass legislation confirming the Crown as owner on
behalf of all New Zealanders.
"Parliament is the highest court in the land, it determines the law. It
is fundamental to a democratic society that Parliament decides the rules
of the land and not the courts."
Maori activists have accused the Government of intending to
extinguish their rights and have threatened a march to Parliament.
It will be noted that in New Zealand, as in Canada, right-wing white
political movements are supporting the anti-Aboriginal case, and helping
whip up public feeling against the natives.
On that same day, a group of activists from 10 organizations, and
individuals, including many pakehas (whites) wrote an open letter to
Prime Minister Helen Clark expressing opposition to the government's
response to the Appeal Court decision to allow the issue to be judged by
a Maori Court. The government promised to would legislate to assert the
Crown's ownership of seabed and foreshore, and to extinguish Mäori
customary title. (This also has echoes in Canadian behavior in related
Here is the letter to the Prime Minister, dated July 28, 2003:
Helen Clark, Prime Minister;
Michael Cullen, Deputy Prime Minister;
Margaret Wilson, Attorney-General, Minister for Treaty of Waitangi
Dear Ms Clark, Dr Cullen and Ms Wilson,
We are profoundly concerned by the Government's response to the Court of
Appeal's judgment in respect of Ngati Apa and Others v Attorney General
and Others, issued on 19 June 2003. The matter before the court was an
appeal by the eight Iwi at the top of the South Island for their claim
to the Marlborough seabed and foreshore (the area between high and low
tide marks) to be considered by the Mäori Land Court.
The Court of Appeal judges were unanimous in their decision that the
claim should be put before the Mäori Land Court for consideration and
that Mäori customary title to seabed and foreshore has never been
In response, on 23 June 2003 an announcement was made that the
Government would legislate to assert the Crown's ownership of seabed and
foreshore, and to extinguish Mäori customary title.
We are deeply troubled by this, as it:
a) Breaches due legal process by preempting a future decision of the
Mäori Land Court;
b) Fosters social disharmony by implying that there is something scary
about Mäori customary title to seabed and foreshore, and that
public access to beaches is now at risk;
c) Misleads by failing to acknowledge that since 1840 it has been
private owners, commercial enterprise and government agencies, rather
than Iwi and Hapü, who have denied public access to beaches. Tangata
Whenua have not excluded others, provided wahi tapu are respected and
natural resources are not damaged or depleted;
d) Demonstrates a monocultural view of 'ownership' by suggesting that
Mäori customary title is somehow the same as private ownership; and
e) Ignores the historical reality that customary title existed long
before European settlement and was reaffirmed by the Treaty of Waitangi
in 1840; that Mäori have never consented to the extinguishment of
customary title, and that Tangata Whenua consent would be required
before this could happen. For example, the Court of Appeal judgment
quoting from a passage approved by the Privy Council: ... "it cannot be
too solemnly asserted" that native property over land is entitled to be
respected and cannot be extinguished ("at least in times of peace")
otherwise than by the consent of the owners." [Ngati Apa and Others v
Attorney-General and Others, 19 June 2003:16]
We record our support for the Declaration on the foreshore and seabed
that was issued at the Paeroa hui of Iwi and Hapü on 12 July 2003, which
reaffirms that the foreshore and seabed have always been under the
jurisdiction of Iwi and Hapü as part of the authority of tino
We consider any legislation to extinguish customary title to be an
extraordinary breach and dishonouring of the Treaty of Waitangi by the
We therefore strongly urge you to abandon any plan to extinguish
We appreciate that there are issues around private and foreign
ownership of coastal property, public access, and commercial
exploitation of foreshore and seabed resources that need to be
However, we are united in our belief that extinguishing Mäori
customary title is not the way to go about this.
Edwina Hughes, Coordinator, Peace Movement Aotearoa
Janine Ahie, Executive Director, YWCA of Aotearoa-New Zealand
Gillian Southey, Christian World Service;
Leigh Cookson, Director, ARENA;
Catriona Budge, Anne Wells, Elizabeth Thompson, and Kathy Lys, Päkehä
Women for the Treaty, Wellington;
Joan Macdonald, Women's International League for Peace and Freedom
(Aotearoa - New Zealand);
Moea Armstrong, Tim Howard, Joan and Russ Cook, Kathryn McKenzie, Don
Ross, Pat and Les Gray, Carol Peters, Ange Jones, Cheree Corban, Network
Mitzi Nairn, Marisa Maclachlan, Susan Healy, Ingrid Huygens, Richard
Green, Sue Vugler, Catherine Smith, Maxine Revell, and David Tutty,
Tamaki Treaty Workers, Auckland;
Adrienne Ross, Gywn John, Abigael Vogt, and Jennifer Margaret, arc
(aotearoa reality check);
Charmaine Pountney, CNZM, Awhitu;
Tim Jones, Writer, Wellington;
Prue Hyman, ARENA Trustee, Paekakariki;
Sue Watson, Wellington;
Geraldine Harvey, Rotorua;
Elena Ilalio, Nelson;
Don Polly, Paekakariki;
Ngaire Rae, Whangarei;
Simon Delahunt, Wellington;
Jo Cottrell, Hamilton;
Jim Holdom, Hamilton;
Tanya Cumberland, Awhitu;
Marion Sanson, Wellington;
Sue Abel, Bay of Islands;
Catherine Amey, Wellington.
Finally, a third article from the New Zealand Press Association carries
a warning from the Associate Maori Assairs Minister John Tamiyhere, that
this issue could be a "tinder box" that could alight trouble in race
relations throughout New Zealand. Here is that article:
Tamihere warns of foreshore 'tinder box'
29 July 2003 By TRACY WATKINS and NZPA
Debate over Maori claims on the foreshore and seabed could ignite a race
relations tinder box, Associate Maori Affairs Minister John Tamihere has
Ahead of a speech on race relations in Wellington today, Mr Tamihere
said the foreshore and seabed loomed as an issue as serious as the 1975
land march over Maori land grievances.
"It has the ability to be a catalyst, to just flick race relations in
this country . . . it just needs a spark, it could be tinder dry. You
just don't appreciate the sense of feeling out there, on both sides."
Five hundred people marched in central Nelson yesterday protesting at
Maori claims on the foreshore and seabed, carrying placards stating
"Whites have rights too".
Government allies United Future joined the protest, with leader Peter
Dunne calling on the Government to legislate to protect Crown ownership
over the foreshore and seabed.
He has accused the Government of driving a wedge between Maori and
Pakeha New Zealanders by failing to act more swiftly.
Mr Tamihere said the issue had been whipped up by the Government's
political opponents into a war of "slogans and poll ratings".
"We just don't deserve it, as a young melting pot nation . . . that sort
of nonsense." The issue was resonating with some voters, but only
because of their ignorance of the issue.
"Voters, 85 per cent of them are non-informed and non-discerning. So
they're only as good as the slogans and billboards."
More than half of the 18,000 kilometres of foreshore was effectively
held in private ownership now, because the beaches were landlocked and
difficult to get to, he said.
Most of that land was in the hands of Pakeha landowners.
"Will customary rights be able to impinge on that, or impugn that? The
answer is No. We've (the Government) made that very clear. No private
property rights will be impugned or challenged."
The most important aspect of any solution was that it was fair, Mr
"If you can demonstrate that you're being fair, most Kiwis will accept
that. But if it's deemed you're getting greedy and out of hand and the
pendulum's swung too far in favour of the natives, you've got problems."
Debate at the moment, however, was aimed at exploiting New Zealanders'
passion for "hunting, fishing and shooting".
"Most Kiwi blokes ... it's the last domain where they're allowed to male
bond with consent ... it's part of the blood right and birthright you
bring to your young sons."
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