E/CN.4/2006/78/Add.3 page 12 41. In response to Maori claims regarding aquaculture, the Maori Commercial Aquaculture Claims Settlement Act 2004 commits the Crown to provide Maori with the equivalent of 20 per cent of aquaculture space in the coastal marine area. 42. During his conversations with Maori organizations, the Special Rapporteur was told that Maori constantly have to renegotiate their collective self-governance rights through the Treaty settlement process, which does not restore actual decision-making capacity and does not recognize collective citizenship. Short of the recognition of self-determination or even selfgovernance, Treaty settlement packages could meet Maori aspirations halfway by awarding tribal collectives actual decision-making capacity over ancestral or culturally significant sites and resources through unencumbered fee simple title being transferred over such sites. The Crown could recognize in such settlements that it has legally enforceable obligations to tribal collectives as citizens who possess a distinct composite of inherent and inalienable rights. Existing settlement acts could be amended so as to enable iwi to self-determine an appropriate corporate structure for receipt of assets. C. Human rights implications of the Foreshore and Seabed Act 43. Over the past two years, an important human rights issue for Maori and all New Zealanders has been the controversy surrounding the adoption of the Foreshore and Seabed Act of 2004. The United Nations Committee on the Elimination of Racial Discrimination (CERD), which had carefully analysed the case after hearing Maori complainants and the Government of New Zealand, found in March 2005 that “… the legislation appears to the Committee, on balance, to contain discriminatory aspects against … Maori customary titles over the foreshore and seabed and its failure to provide a guaranteed right of redress.” (CERD/C/DEC/NZL/1, para.6): Furthermore, the Committee expressed concern “at the apparent haste with which the legislation was enacted and that insufficient consideration may have been given to alternative responses...” (ibid., para. 4). It also noted “the scale of opposition to the legislation among the group most directly affected by its provisions, the Maori, and their very strong perception that the legislation discriminates against them” (ibid., para. 5). 44. On his mission to New Zealand the Special Rapporteur was briefed extensively by the Government, by numerous Maori organizations and members of the Waitangi Tribunal and by the Human Rights Commission about the background, complexities and implications of this legislation and has had the opportunity to study the documentation and weigh the different arguments. 45. Both foreshore (the area of land between the low and high tide marks) and seabed have long been a part of Maori environment, culture, economic activity and way of life, basically for marine farming and small-scale sand mining, more recently for tourism. Maori customary ownership, occupation and use of the foreshore and seabed, according to the Treaty of Waitangi, were never legally challenged in the courts. New Zealand’s submission to CERD states that the “Government understood that foreshore and seabed in New Zealand was generally owned by the Crown”. The government’s understanding was based on existing legislation which provided for vesting of the foreshore and seabed in the Crown, and existing domestic case law, notably the 1963 Ninety Mile Beach decision of the Court of Appeal. 46. It was on this basis that the public right of access to the beaches was assumed and the development of certain private commercial activities occurred on the foreshore and seabed