COMMITTEE ON ELIMINATION OF RACIAL DISCRIMINATION CONSIDERS SITUATION IN NEW ZEALAND

The Committee on the Elimination of Racial Discrimination this morning considered the situation in New Zealand under its early warning measures and urgent action procedures.

Patricia Nozipho January-Bardill, the Committee Expert who served as Coordinator/Convener of the Working Group on early warning measures and urgent action procedures, introduced the process that had brought the Committee to the dialogue. In July 2004, three Maori non-governmental organizations had asked the Committee to invoke its early warning procedure to call on the Government of New Zealand to withdraw proposed legislation relating to the New Zealand foreshore and seabed.

She said the Foreshore and Seabed Bill aimed at clarifying the status of the foreshore and seabed by vesting in the Crown the full legal and beneficial ownership of the public foreshore and seabed that was not held in private freehold. The Government’s stated guiding principles in developing the Bill were: open access for all New Zealanders to the public foreshore and seabed; regulation of the foreshore and seabed; protection of existing customary interests and specific interests; and certainty.

Tim Caughley, Ambassador and Permanent Representative of New Zealand to the United Nations Office at Geneva, said the development of the Foreshore and Seabed Act stemmed from the State’s Court of Appeal’s decision in Ngati Apa versus Attorney-General, issued in June 2003. The Court found that it was theoretically possible that the Crown’s title might be burdened by Maori customary title, in the sense of customary ownership. The judgment also expressed reservations as to whether Maori could demonstrate ownership interest in the foreshore and seabed.

Following the presentation by the delegation of New Zealand, several Committee Experts, including the country Rapporteur Patrick Thornberry, raised a number of questions on, among other things, the hastiness of the Government in introducing and passing the legislation, the extent of the consultation process, including Maori participation, the possibility of alternative responses to the Ngati Apa case, the distinction drawn in the legislation between Maori customary rights and private freehold rights and the different treatment accorded to them, and the appropriateness of the redress provided for in the legislation when compared to the possibility of compensation.

The Committee is expected to take a decision by the end of the session.

The delegation of New Zealand also included representatives of the Department of the Prime Minister and Cabinet, the Crown Law Office, as well as the Permanent Mission of New Zealand to the United Nations Office at Geneva.

When the Committee reconvenes at 3 p.m., it will deal with miscellaneous issues. Consideration of the periodic report of Nigeria, which had been scheduled for this afternoon, has been postponed to the Committee's next session in August.

Statements

PARTICIA NOZIPHO JANUARY-BARDILL, the Committee Expert who served as Coordinator/Convener of the Working Group on early warning measures and urgent action procedures, introduced the process that had brought the Committee to the dialogue. In July 2004, three Maori non-governmental organizations -- Te Rünanga o Ngäi Tahu, the Treaty Tribes Coalition and the Taranaki Maori Trust Board -- had asked the Committee to invoke its early warning procedure to call on the Government of New Zealand to withdraw proposed legislation relating to the New Zealand foreshore and seabed.

She said the Foreshore and Seabed Bill aimed at clarifying the status of the foreshore and seabed by vesting in the Crown the full legal and beneficial ownership of the public foreshore and seabed that was not held in private freehold. The Government’s stated guiding principles in developing the Bill were: open access for all New Zealanders to the public foreshore and seabed; regulation of the foreshore and seabed; protection of existing customary interests and specific interests; and certainty.

Ms. January-Bradill said that the requesting organizations had claimed that the Bill was discriminatory against Maori since it would effectively extinguish Maori property rights in the foreshore and seabed while retaining Specified Freehold Interest.

The Expert recalled that in a letter sent on 20 August 2004, the Committee requested additional information from the Government of New Zealand concerning the Bill under discussion and the process of adoption at that time. It further requested information on the timetable for discussion and adoption of the Bill since non-governmental sources had indicated that adoption might take place before 31 December 2004. In September 2004, the Government responded to the Committee’s request, providing information on the Bill and its timetable and replying to the allegations made by the requesting organizations. The Government had rejected the alleged discriminatory aspect of the Bill.

Ms. January-Bardill said the Committee noted that the Bill was enacted on 17 November 2004 as the Foreshore and Seabed Act 2004. The requesting organizations reiterated their original objections to the Bill with regard to the subsequent Act. In December 2004, two of the requesting organizations responded to the Government submission, reiterating their main concerns. They furthermore asserted that the Act differed from the Bill in four aspects that made it more restrictive for Maori. The Government had submitted an additional detailed response to the Maori submissions on 17 February 2005. The Government had presented arguments challenging the bases on which the early warning procedure had been invoked, and addressing the substantive claim with regard to article 5.

TIM CAUGHLEY, Ambassador and Permanent Representative of New Zealand to the United Nations Office at Geneva, appreciated the fact that the Committee had emphasized from the outset that its wish was to play a helpful role. Given the Committee’s independence, he had taken that to mean: helpful to all the parties affected by the set of circumstances with which the Government found itself facing. In essence, in view of the sweep of those issues, that meant helpful to the State, Maori and everyone with an interest in the 20,000 kilometers of the shoreline of New Zealand and its marine area.

Mr. Caughley said exercising that responsibility in those complex circumstances was, of course, a tall order, one to which the New Zealand Government had given intense attention since the issue had emerged in June 2003. It would seem from his perspective that the measured, monitoring approach taken by the Committee had been, and remained helpful. He was glad to be able to say that the concerns held by some Maori about the risk of racial conflict that had given rise to the Committee’s initial interest last August had not transpired. It had given way in large part to an atmosphere that he would characterize as one of reason and watchfulness on all sides in which the accent was on fair and effective implementation of the legislation in the months and years ahead.

As the Committee knew, the development of the Foreshore and Seabed Act stemmed from the State’s Court of Appeal’s decision in Ngati Apa versus Attorney-General, issued in June 2003. The Court found that it was theoretically possible that the Crown’s title might be burdened by Maori customary title, in the sense of customary ownership. The judgments also expressed reservations as to whether Maori could demonstrate ownership interest in the foreshore and seabed. The Court had noted the strong presumption of non-exclusivity of use, occupation and enjoyment in the coastal marine area that was in practical terms the wet part of the shoreline that was covered by the sea at high tide out to a distance of 12 nautical miles measured from the low tide mark.

Mr. Caughley said that prior to the Ngati Apa decision, the Government had understood that the Crown generally owned foreshore and seabed in New Zealand. Although the Government was experiencing practical problems in relation to the need to reform relevant existing legislation, the uncertainty which the Court of Appeal’s decision had introduced created a new level of urgency to resolve that new heightened sense of legal uncertainty.

After an intensive period entailing consultations, the Government’s response was to enact the Foreshore and Seabed Act last November, Mr. Caughley said. The Act differed in significant ways from the measure envisaged in the original policy framework that promoted the submissions to that Committee. The object of the Act was to "preserve the public foreshore and seabed in perpetuity as the common heritage of all New Zealanders in a way that enabled the protection by the Crown of the public foreshore and seabed on behalf of all the people of New Zealand, including the protection of the association of whanau, hapu and iwi with areas of the public foreshore and seabed". Crown ownership applied across the entire foreshore and seabed except for those areas covered by specified freehold interests. He noted that successive governments had taken legislative actions to prevent the further alienation of the foreshore and seabed. In that Act, that trend continued: land below high tide held by local authorities became part of the public foreshore and seabed that was vested in the Crown. Under that statute, customary rights were expressly able to be recognized and protected via Customary Rights Orders alongside Crown ownership of the public foreshore and seabed.

Mr. Caughley said amongst the considerations that had occupied the New Zealand Government in legislating in that way to address the uncertainty with which it was faced had been a matter that was central to the interests of members of the Committee, compliance with the State party’s obligations under the Convention. In the Government’s judgment, the character and practical effect of claims under aboriginal title were substantively different from those of existing freehold interests. Generally, private titles, which now encroach into the foreshore and seabed were very modest and well-defined and were not granted with an intension of privatizing the marine area. The titles had often arisen through the vagaries of coastal or estuarine erosion. The different treatment of private title and undermined customary claims under the Act reflected their different character.

It was not always possible to give full recognition to indigenous claims to land, Mr. Cuaghley said. That was particularly true in relation to the marine area, which in a country as slender and sea-bound as New Zealand was valued as an unalienable public space. The approach of the Government was to provide negotiated redress that might include rights to particular land and measures to protect and mange areas of importance, such as wahi tapu – sacred sites.

Dialogue

Following the presentation of the delegation of New Zealand, several Committee Experts, including the country Rapporteur Patrick Thornberry, raised a number of questions on, among other things, the hastiness of the Government in introducing and passing the legislation, the extent of the consultation process, including Maori participation, the possibility of alternative responses to the Ngati Apa case, the distinction drawn in the legislation between Maori customary rights and private freehold rights and the different treatment accorded to them, and the appropriateness of the redress provided for in the legislation when compared to the possibility of compensation.

In response, the delegation said it had carried out a series of consultations before the Bill was introduced. The Act was a replacement regime of the customary and property use rights. It did not extinguish the property rights of Maori. The Maori commercial aquaculture claims Act provided Maori with 20 per cent of marine farming space.

The delegation said that according to the submission of the State party to the Committee, the immediate prompt for the legislation was the New Zealand’s Court of Appeal’s decision in Ngati Apa versus Attotney-General. Prior to the decision, the Government understood that the Crown generally owned foreshore and seabed in New Zealand. That understanding was based on existing legislation, which provided for vesting of foreshore and seabed in the Crown, and existing domestic case law.

The Court of Appeal’s decision stood for the idea that within New Zealand’s territorial waters, accepted in international law as running to the 12 nautical miles limit, the Crown’s title could theoretically be burdened with Maori customary ownership interests, among others.

The delegation said that the object of the legislation was to preserve the public foreshore and seabed in perpetuity as the common heritage of all New Zealanders. It was also acknowledged that the protection was on behalf of all the people of New Zealand, including the protection of whanau, hapu and iwi interests.

For use of the information media; not an official record

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