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MOANA JACKSON Powered By Docstoc
					Moana Jackson Speech To Human Rights Commission Speakers Forum

Moana Jackson
Lawyer of Ngati Kahungunu & Ngati Porou descent

11 May 2004

Speech Notes

Human Rights Commission Speakers Forum: Human Rights and the Foreshore and
Seabed, National Library Auditorium, Aitken St, Thorndon, Wellington

Tena koutou, Ko te mea tuatahi mea atu kia koe te rangatira a Bob. E mihi mai nei kia
hau kia tatou ko tae mai runga I te kainga o te ra. Na tena no koutou nga kaiwhakahaere o
tenei hui o tatou. Me nga huri o nga waka ko tae mai. Kei te tautoko te Kaupapa. Nga huri
no tena koutou, tena koutou, a tena koutou katoa

       When I was first asked to speak today, it was in the very early stages of the
planning for the Hikoi which arrived in Wellington last week. And then as the momentum
gathered pace for the Hikoi and our people began to arrive in their thousands. The topic
for today actually sort of slips somewhat into the background in terms of the human rights
dimensions of the foreshore and seabed issue. And my mind was preoccupied more with
the strategic placement of Portaloo’s outside parliament, and the provision of kai for the
people who came for the Hikoi. But the issue itself never remained far away because it is
such, I believe, a crucial issue for our people and indeed for this country.

      But when the Hikoi was over and I had some time to think about how I might
approach today, I had this strange sort of nightmarish experience of Helen Clarke and Don
Brash dancing through my mind. It’s an experience I don’t particularly want to have again.
But they danced through my mind because of two things which they have said and
repeated several times in the last several months.

        In his now infamous Orewa speech Don Brash talked about the Treaty of Waitangi
as a relic of 1840. And Helen Clarke in questioning why Maori people wanted to Hikoi to
Wellington, asked why Maori are getting so upset about such an abstract issue as the
foreshore and seabed. And I’d like to take those two ideas of the treaty being dismissed as
a relic of 1840, and the notion of the foreshore and seabed issue as being some abstract
matter, as the starting point for my korero.

        And I’ll like to begin as I often do, with a story. A few years ago, I had to attend a
conference in England and I had a chance to go to Salisbury Cathedral and those who
know me will know that I wouldn’t have gone to revel in its Christian history. But I went
because in the chapter house of the Cathedral is one of the original copies of another relic
of its time called the Magna Carta. And as I looked at it in its vacuumed sealed case, I
couldn’t help but remember the myths that have grown up around it as a great charter of
human rights, of liberties, and freedom. And yet I knew that the Magna Carta was in fact, a
product of its time. It was an agreement by which the Nobles in England sought to restrain
the power of an autocratic king, and that the three men that it talked about in its clauses on
the rights of free men, were only those who had the wealth and the property to be free. But
I noticed too, struggling with my Hastings Boys High School Latin, that there was a clause

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which had a particular resonance for me because in clause 13 of the Magna Carta it talks
about the guaranteed protection and recognition, talked about the guaranteed protection of
what it called ancient liberties and free customs of the people in the land as well as the
water. And there seemed to be a symmetry between that ancient article and the relic that
we call the Magna Carta and article two of the relic that Don Brash calls the treaty of
Waitangi. Because both sought to preserve for the indigenous peoples of their respective
lands ancient liberties and free customs that they had long defined for themselves and
enjoyed on the land as well as the water.

       When we left Salisbury Cathedral that day, it had started to rain as it often seems to
do in England. And as we waited for the train back to London we took shelter in an old
Victorian house which is built across the close from the Cathedral. It was actually a
museum for the Middlesex regiment. A regiment which has its origins over 600 years ago,
and although not a great fan of military museums we wandered around as we killed time,
and found that the museum was laid out as a sort of catalogue regimental history and so
you walked through the centuries of the battle honours and glory of that particular
regiment. Now when we reached the 19th century, there was a whole huge display of the
battle honours of that regiment it achieved in imposing the colonial will of the British
government. And in one corner of that vast display was a little glass case recording the
exploits of that museum of that regiment, containing what it called the savage warlike
Maori race. And it seemed to me that in that stereotypical but deliberately constructed
image of indigenous peoples as warrior races, and the glorifying of the military exploits of
the colonial empire so close to the Magna Carta that is enshrined as one of the hall marks
of the great liberal English tradition, there was this strange dissonance, there was this
strange misplacement of values.

        Because while on the one hand the Magna Carta guaranteed to protect the ancient
liberties and free customs of English people in their lands and waters, the museum of that
regiment showed how they sought to destroy those same ancient liberties and freedoms
for indigenous peoples in other parts of the world. And it seems to me that what we
confront in the current foreshore and seabed issue is a government and all political parties
except with the possible exception of the Greens, determined to deny what little of those
ancient liberties and free customs Maori have left. That all of those things which
encapsulated the enjoyment of life as a Mokopuna of Iwi and which would be guaranteed
in the Treaty of Waitangi, has as we know, been whittled away since 1840. And that the
whenua upon which we once proudly stood and confidently exercised authority in relation
to, has been taken away. And taken away of course, in the name of the Colonisers law, a
law enforced for a long time directly through the power of the military and such regiments
as that honoured in the museum at Salisbury. And for every colonial taking there was a
colonial law, either passed before the fact, or passed after the fact to justify something that
had already been done. And so the 1863 Museum Settlements Act was a ‘before the fact’
piece of legislation allowing for the Raupatu or the confiscation of vast areas of land in
Waikato, Taranaki, and the Bay of Plenty.

       The 1894 Validation of Invalid Land Sales Act however, was a post-factor-after-the-
fact law to justify those confiscations, those takings of land which under pakeha law (under
the common law) may not have been taken validly. And because questions had arisen
where all of the land taken from our people had in fact been done according to pakeha
law, that strangely named piece of legislation was passed. And from that moment on in
1894, every bit of Maori land that had been taken whether in breach of the Treaty or not,
whether validly or invalidly according to the common law, was deemed to be legitimate.

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And so all of the confiscations of everything that we held precious, in which we sought to
preserve in the Treaty of Waitangi was legally taken away.

       But by some strange oversight one tiny piece of the whenua was not specifically
covered by law. It was the tiny piece of the whenua that sits between the high tide mark
and the low water mark that under pakeha law was called the foreshore. And the seabed
which stretches out from the low water mark. And so under the common law that one tiny
piece of our free customary rights had not been extinguished. In a sense what that meant
was that by default the Teaty of Waitangi in relation to the foreshore and seabed had been
honoured even if it had not been honoured anywhere else. But because it was such a tiny
piece of land it caused no disturbance to the establishment of pakeha political power and
to germane.

        But in the 1980’s a small group of Iwi at the top of the South Island known as Te
Tau Ihu which were a coastal people who had traditionally fished for kai moana, used the
beaches as a source of kai as well as recreation, thought that it would be quite a good use
of their resource of their ancient liberties to actually establish mussel farms. They were told
by the local government body – the Blenheim District Council, that if they wanted to do
that, they would have to apply for a licence from the Council. The Iwi saw no need to apply
for a licence because it was their whenua, and for them as for most Iwi, the seabed is
simply whenua with water on top of it. But to avoid conflict, they decided that they would
apply for a licence to establish a mussel farm. And as many of you will know, their
application was declined. So they applied again, and it was declined again, and again, and
again. In the five years that those Iwi made a number of applications for mussel farm
licences and were denied, four pakeha organisations were granted licences by the same
Council. The people of those eight Iwi naturally felt aggrieved and thought “what can we
do?” And discovered through research that in fact under the common law which the
colonisers claimed to have brought here, their rights to that tiny piece of foreshore and
seabed had not been extinguished and therefore they had an absolute right to establish
mussel farms if they wished. So they took that argument to Court. And the Court process
ground on as Court processes tend to do. Until last year in June the Court of Appeal
issued its decision which said in fact that the rights had not been extinguished, were not
covered by the Validation of Invalid Land Sales Act or any of the various pieces of port
legislation. And that Maori therefore had a right to go to the Maori Land Court in a sens, to
test the extent of those un-extinguished rights.

        I received the judgment of the Court of Appeal, I think it was on a Thursday
afternoon. I finished reading it at about lunch time the next day. I turned on the radio and
Margaret Wilson was making the first government announcement that they would overturn
the Court of Appeal decision. And that they would pass legislation to vest in the Crown
what the Crown had always assumed it had - namely full and exclusive title over the
foreshore and seabed. Two days later the Prime Minister reiterated that statement and
offered as an explanation the fact that if the foreshore and seabed was not vested in the
Crown, then there would be a real danger that Maori would close off the beaches and deny
pakeha New Zealanders their birth-right to have a barbeque. She talked of the fear of a
pakeha backlash. And my immediate reaction was to think “while there has been no time
for a backlash, you are actually creating it”. And so it proved to be. And we have been
subjected ever since to a process of gross misinformation, lies and deception which have
pitted ordinary pakeha people against ordinary Maori people in the denial of our ancient
liberties and free customs. The debate often, as legal debates do, has got abstracted and
become a question of definition. But all legal debates in the end revolve around human
experience in the rights and obligations of humans one to another. And so although the

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Prime Minister and the government in most political parties tried to limit it to what they call
a common law debate, and say it is not a Treaty debate, it is actually all of those things but
most fundamentally, it is about the rights of Maori as human beings to enjoy those things
which we had always enjoyed and which the Treaty said we could continue to enjoy.

       The deception in this information was finally incorporated into a piece of legislation
which was introduced just before Easter called the Foreshore and Seabed Bill. And I’d like
to give just two illustrations from that Bill which showed to me why the legislation is such a
gross breach of Human Rights in its most fundamental sense.

The Bill begins from the assumption that the Crown has the right to take away things from
Maori which Maori have treasured for centuries. That is an ultimate confiscation which the
Crown has no right to do. What the Crown in fact is attempting to assert, is an over-riding
and oppressive sovereignty that denies the rights which the Treaty sought to protect.
Beginning from that base, it then tries to create a new set of legal constructs to make up
for, to appease Maori in response to the confiscation. And those constructs have two

The first is the legislation creates what is called a set of ancestral connection orders. They
are part of a new legal process devised, as the Government will admit, because one of the
main objections which the Crown had which Maori people had to the original Crown
proposal, was that it would deny Maori the right to go to Court. It will deny Maori the right
of due process, another one of those ancient liberties enshrined in the Magna Carta. The
Crown responded to that Maori concern by inventing this new due process and the notion
of ancestral connection. But the due process is a deceit. It is a Clayton’s due process for
those who are old enough to remember the old Claytons ad ‘the beer you have when
you’re not having a beer’. The due process outlined in the legislation is the due process
you have when you don’t really have due process, because Maori can go to Court to seek
an ancestral connection order. But to get that order Maori have to prove that we have an
ancestral connection to the foreshore and seabed which we know we have always had.
The burden of prove is placed on the innocent. And the ancestral connection can only be
established if certain traditional activities have been carried out in the phrase used in the
Bill ‘had been carried out substantially un-interrupted since 1840’. So the connection will
only exist if you’ve been able to traditionally exercise certain activities substantially un-
interrupted since the Treaty. For many Iwi and Hapu that will actually be impossible to
prove. Because many of the traditional activities depended upon access to the beaches
and the sea, and for many of our people that access has been denied by the granting of
freehold title to farmers who have blocked off access, to port companies, and yachting
mariners with similarly blocked access.

        But assuming you can overcome the substantially un-interrupted rule, what does
the granting of the ancestral connection order do? According to the National Party it gives
Maori special privileges that belong to no one else. According to the government, it gives
Maori greater rights than we have ever had. With respect on this issue as in most others
relating to the foreshore, both the government and the National Party are lying. Because
all that the ancestral connection order does is create a register of those who will hold the
order which local bodies must consult whenever they are to make decisions on the
development of foreshore and beach front areas. So you will get an ancestral order which
means that the Council must consult with you in terms of the Resource Management Act.
That is not a new Council obligation, it is an existing one under the RMA, and in many
ways it may be more restricted than the current situation where consultation tends in most
cases to be ignored. But restricted because under the current Resource Management

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regime the obligation on Councils is to consult with Maori. The possibility exists under the
new regime that Councils will only need to consult with those Maori who have gone to
Court and gained an ancestral connection order. The order itself sits in isolation from the
second part of the construct which is a new notion of ancestral customary rights or
customary territorial rights. These are not the rights which Maori have traditionally
exercised in accordance with Tikanga or tino rangatiratanga. Nor even are they the rights
defined over the centuries in the common law and certainly not the rights recognised as
ancient liberties and the Magna Carta. Because you can go to Court to get a customary
rights order, if you get that order you’ll be given a customary rights order certificate. And
what the certificate actually says is that you are acknowledged as having the rights which
you would have had if the Crown had not taken the foreshore. In other words you’ll get a
certificate saying that you once had these rights but you no longer have them because we
have taken them. That seems to me to be the most blatant deceit of all.

       If you get that certificate to a meaningless fiction, then the Crown may enter into
discussions with you about what redress might be possible since your rights have been
taken away. And so when the Government talks about due process, when the Opposition
parties talk about special privileges, they deliberately set out, I believe, to mis-inform the
public about what the legislation actually says.

        It begins with a confiscation. As recompense it creates a meaningless set of legal
constructs and Maori end up with nothing which is what confiscations are meant to do.
There are a number of ways in which I believe this issue can be addressed, and in a sense
the wonderful feeling of unity, of dignity, in last week’s Hikoi was one way in which the
opposition to it could be expressed. A clear statement to politicians and to the country, that
for Maori, this is a line in the sand. That if Mr Brash and his followers have had enough of
special Maori privilege as they define it, then so Maori have had enough of denying what is
rightfully ours. But there are other options available, some of which rest in the field of what
is known as international human rights law. There are difficulties with the notion of human
rights as defined in international law. They tend to be, although not exclusively, applied as
individual rights. They privilege the individual over the collective and ignore the relationship
sourced in our tikanga and whakapapa between the rights and obligations that bind the
collective and the individual together. But they nevertheless do provide certain options. For
example, a number of the United Nations Conventions, because they are individual based,
there are very clear restrictions on the unjust taking of property rights. And clearly this is
an unjust taking of property rights. There are also provisions in specific Conventions such
as that on the elimination of racial discrimination which prevent discriminatory laws being
passed that prejudice one people in relation to another and clearly the whole thrust of the
Foreshore and Seabed Bill is to take away rights from Maori while protecting similar rights
for pakeha. And if I can just give one little example of that.

        If pakeha people have rights in a particular property, then inherent in that right is
what is known as ‘the right of development’. That they can choose to develop that property
in whatever way they see fit provided it is consistent with environmental law and so on. So
they can commercially develop that right. The customary territorial rights outlined in the
legislation limited as they are essentially to traditional activities and the legislative policy
framework, two examples were given of those sorts of activities – one was collecting hangi
stones, and the other one was the traditional use of waka launching sites. The notion of
development is restricted to that which is consistent with the scale of the traditional activity
which seems to imply that if Maori wish to develop their right even though it’s no longer in
existence, that right would be restricted to the appropriate scale of the traditional activity.
There is no similar restriction placed on the pakeha right of development. They are not

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frozen into a development model set in 1840, Maori are. And there are other examples in
the legislation which it seems to me are clearly in breach of the Convention on The
Elimination of Racial Discrimination. Other human rights Conventions on Civil and Political
Rights and so on, also provide options in which Maori may seek international redress
through agencies such as the United Nations Committee on Human Rights. And I know
certainly that a number of Iwi are already considering laying claims to that body. But that
too is just another strategy; it is just another part of the process. I never under-estimate the
value of that process because I don’t think we should ever under-estimate the fear that
governments have of international embarrassment. The Human Rights Committee of the
United Nations cannot bind the government; sadly it cannot send Helen Clarke and Don
Brash to jail, but it can embarrass the governments in international forum. And it was
particularly galling for many Maori people that at the height of the foreshore and seabed
issue, the Minister of Foreign Affairs Phil Goff announced that New Zealand was seeking a
seat on the Human Rights Commission of the United Nations. While on the one hand
denying the basic human rights of Maori at home, it sets to position itself as an advocate of
human rights at the United Nations. It would be my wish that if Maori pursue claims in that
international arena, we can at least block the New Zealand governments attempts to sit
and pontificate in the Human Rights Commission.

        There are other options open to us as well, one of which the Hikoi also illustrated.
And that is that in the end, the protection of Maori rights cannot be served within the
current political framework. Just as Maori were never in the end, able to get adequate
health services through non-Maori health providers which led to the gradual and rapid
increase in Maori health providers, so there is a point now in our history where discussion
of tino rangatiratanga must turn and, inevitably to the question of constitutional change.
That Maori cannot get justice within the current pakeha dominated Eurocentric party
political model. That no matter how well intentioned individual pakeha people may be, the
party structure within which they defined democracy is inimical to Maori interests. It is also
of course contrary to the Treaty. And I think there is a mood in the Maori community now
that is greater than it has ever been for at least the last century, to seek alternative political
voices of expression. What form that will take in terms of a Maori movement or a Maori
party is yet to be discussed. But to me that is an important next step so that our
grandchildren will not have to confront the same sorts of issues that we confront now with
the foreshore and seabed.

        But beyond the political change must come the ultimate process of constitutional
change. That democracy, as defined in western society, is a cultural construct. That
democracy in its simplest terms if we go back to the origins of it in the word ‘demos’ in
Greece, is simply the right of people to govern themselves in their own way. What has
become accepted is the democratic model is the ‘Westminster system’ that was devised in
the cultural circumstances of England. But it has become mysteriously universalised as the
only possible constitutional way in which democracy can be exercised and lived. It’s my
submission that every culture seeks its own way to be democratic. John Rangihau used to
say that the power vested in tino rangatiratanga was people bestowed. The people could
grant it, and the people could take it away in the most fundamental sense. That seems to
me to be the essence of democracy defined in Maori terms. How Maori would exercise
that, what institutional form it would take in the 21st century are matters for Maori people to
decide. They are part of that broader notion of constitutional change. And perhaps the
foreshore and seabed issue may stimulate that debate because it is long overdue.

       But ultimately the protection of those ancient liberties and free customs of Maori
requires something much more profound to occur in my view in this country. Many people

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were surprised by the Brash phenomenon, were surprised by the way in which so many
pakeha people – not all by any means, but surprised by the way in which so many Maori
people took his Orewa speech as a licence to demean and ridicule Maori people. And it
has been a particularly virulent and vitriolic attack that our people have had to endure in
the last several months. I was somewhat bemused when Paul Holmes – that great
paragon of journalistic integrity - felt that he had the right to label Tariana Turia as a
‘confused bag of lard’. There was little condemnation of him; after all it was just Paul being
Paul. And in fact he was defended by a fellow journalist and ex-politician Michael Laws
with the strange proposition that there would have been no fuss at all if Paul Holmes had
called Gerry Brownlee a confused bag of lard. What Mr Laws tended to ignore was the fact
that Paul Holmes would probably never have called a pakeha politician a confused bag of
lard. But he felt free to do so in relation to a Maori.

         After the Hikoi, Leighton Smith on ZB talkback felt he had the freedom to call Tame
Iti ‘a dog and a savage animal’. No matter what one thinks of Mr Iti as an individual, I doubt
very much whether Leighton Smith would have felt he had the licence to call a pakeha a
dog and a savage animal. No reprimand followed. Those are only the more extreme
examples of a denigration of Maori people that has become more overt as a result of a
conjunction between the foreshore and seabed issue and the Brash phenomenon. To me
they are inter-related; they are not surprising; they are just more current. And it is in
addressing that hatred, that willingness to so despise our people that the ultimate solution
must come. That abstract talk of Human Rights is meaningless if the humanity of people is
not recognised. Colonisation depended for its success on the de-humanisation by Europe
of millions of the world’s indigenous peoples. It depended for its success on the belief that
Europe was superior in everything from its morals to its form of government. And that
therefore it had a right to rule. What the last several months have uncovered in this country
is a reality that very little has changed. And unless this country de-colonises not just
institutionally, but honestly confronts the dark under-currents of it’s inherent racism, then
these issues will not go away.

       And the most important part of the Hikoi for me and the closing comment I’ll like to
make was that when one of our old people from Ngati Kahungungu announced that 93
years old that he was going to come to Wellington for the Hikoi. And in announcing it said
he did it simply because in twenty, thirty years time our mokopuna will have to revisit this
issue, it will have become by then an historical grievance. And he wanted his ‘mokopuna
to know that their Koro had done something’. That’s the challenge that rests before all of
       I thank you for your time - Kia ora.

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