Sunday, January 04, 2004

Muddled Thinking on Fiji Announcement

Either Deputy P.M. Cullen doesn’t know what he is talking about, or he is signaling a profound change in New Zealand’s policy toward Maori peoples and their right to aboriginal title and (gasp) self government. I wish it were the latter, but I suspect it is probably the former. Cullen was responding to a recent announcement by the government of Fiji giving indigenous peoples ownership rights to particular coastal areas. According to the Weekend Herald,

...Dr Cullen backed the Government's duty minister, Annette King, in distancing New Zealand from the Fijian plan. He said Australia and Canada were more likely overseas models for this country over issues of indigenous people's rights.

Now I don't know much about the situation in Australia, but I do know a little about the situation in Canada. Let's just say that if New Zealand were to follow Canadians in their approach to aboriginal title, people here would be in for a very big shock.

To begin with, it's important to note that unlike New Zealand, the public ownership of the seabed and foreshore is an established fact. It has been for years. And further, private exclusive title to areas adjacent to coastal lands cannot include any rights to the seabed and foreshore. Those rights belong to the Crown, either with the federal government or with the various provinces. Development of coastal areas and resources is carried out through the granting of leases and licences. Public bodies such as management boards oversee the granting of such instruments, and they often are comprised of several levels of government, including the First Nations.

So what about aboriginal rights to the seabeds and foreshores? First, we need to look at the kinds of aboriginal rights that are at play in the Canadian context. They include both the right to title and to self government.

To begin with, in Canada the courts and legislatures have determined that aboriginal title cannot be arbitrarily extinguished by the Crown. And in 1997, the Delgamuukw case decided that aboriginal title was both more than fee simple ownership and more than hunting and fishing:

...Aboriginal title, the Supreme Court of Canada said, was not a right similar to "an inalienable fee simple" (the term that describes full ownership at common law). Neither was it, as the Crown had argued, simply a bundle of aboriginal rights to use land for traditional purposes. "Aboriginal title", the Supreme Court said, "is a right in land and, as such, is more than the right to engage in specific activities which may themselves be aboriginal rights. Rather, it confers the right to use land for a variety of activities, not all of which be aspects of practices, customs and traditions which are integral to the distinctive cultures of aboriginal societies".

So not only does aboriginal title preexist the common law, it is also not confined to the customary uses practised at the time of contact: the courts recognised that traditional cultures had the right to change and develop over time while exercising control over their resources.

Finally, the right of First Nations to self government was enshrined in Section 35 of the Canadian Constitution in 1982.
Bear in mind that the text of the Constitution does not create either the inherent right of title or of self government; rather, it explicitly recognises both as prior rights already given in law. The recognition of self government given in the Constitution has provided the basis for both federal and provincial policy:

The Government of Canada recognizes the inherent right of self-government as an existing Aboriginal right under section 35 of the Constitution Act, 1982. It recognizes, as well, that the inherent right may find expression in treaties, and in the context of the Crown's relationship with treaty First Nations. Recognition of the inherent right is based on the view that the Aboriginal peoples of Canada have the right to govern themselves in relation to matters that are internal to their communities, integral to their unique cultures, identities, traditions, languages and institutions, and with respect to their special relationship to their land and their resources.

The Canadian courts have repeatedly urged the various levels of government to settle issues of aboriginal rights and titles through negotiation, rather than litigation. The result has been uneven. In some jurisdictions, particularly in the far north and in British Columbia, settler governments have responded to the new environment by negotiating far reaching agreements that have resulted in the creation of entirely new levels
of government. In other jurisdictions, negotiations have stalled, forcing aboriginal groups back to the courts to have their rights affirmed.

But do these rights extend to the seabeds and foreshores? Some light was shed on aboriginal rights to coastal areas and resources in Marshall vs. Canada 1999. A member of the Mi'kmaq First Nation,

...Marshall was acquited of fishing without a license out of season and the Court gave the opinion that Mi’kmaq Indians in eastern Canada have the right of fishing at any time, even forcommercial purposes. While these rights were later interpreted by the Court to be subject to government fishing regulations, the scope for dispute... still exists.

There have been as yet no firm court decisions on the full extent of aboriginal title in regards to seabeds and foreshores. But in the light of the Marshall decision, and with rights of aboriginal title and self government recognised in both the Constitution and in law, the trend has been towards the negotiation of robust, participative co-management regimes over coastal resources.

With the Foreshore and Seabed proposal on offer from Labour, I don't think that Cullen has any of this in mind. It's too bad. He and Clark could have taken this opportunity to save New Zealanders from decades of expensive litigation and ill-will as Maori fight the illegal and arbitrary denial of their rights.