Monday, November 8, 2010
Michael Coote: A Phoney War over the Foreshore and Seabed
This was a mere smokescreen calculated to distract New Zealanders from what really should be worrying them about MCA.
Some people are starting to wake up.
For example, law firm Bell Gully, in its October update entitled Controversial Marine and Coastal Area (Takutai Moana) Bill causes concern – an RMA perspective, raised the alarm about how the bill potentially opens up wide exemptions from the Resource Management Act for coastal Maori tribes.
The authors David McGregor and Marija Batistich assert that “When exercising a protected customary right under clause 54 of the Bill, resource consent is not required despite any restriction under sections 9 to 17 of the RMA.”
“This means that no regional or district plan applies to the activity and a group holding such a right is not liable for payment of any coastal occupation charge.”
“There is no similar provision for a customary marine title but given that this is a higher order right it may be assumed that it would enjoy the same privilege.”
“This substantial privilege, which effectively exempts land from the application of the RMA providing that it meets the criteria (i.e. customary rights have been established within the “common marine and coastal area”), is unprecedented.”
Indeed, this MCA provision could open up at minimum some 2,000 kilometres of coastline title – as calculated by the conflicted Attorney-General and Minster of Treaty Settlements Christopher Finlayson – to race-based exemptions from the RMA.
The Bell Gully authors also pick up on the sinister ability under the MCA of Maori tribes who have customary marine title to write their own management plans for the area affected.
“A holder of customary marine title, under clause 84 of the Bill, may prepare a ‘planning document’, and no rights of consultation, objection or appeal apply to the preparation of that document.”
“There is no requirement to apply Part 2 of the RMA.”
“Once the document is lodged and registered it must be considered by a number of agencies and local authorities.”
“When a regional council is preparing or changing a regional plan they must recognise and provide for matters in the planning document, and it will be relevant to the consideration of resource consents in the customary marine title area.”
“There is little guidance on what such a document may include.”
“Further, a territorial authority ‘must take into account’ such a planning document when amending a district plan, and there is no guidance how this is to be done when there are conflicting provisions.”
Other aspects of MCA deserve very close attention.
For example, despite supposedly free public foreshore and seabed access, the bill allows considerable latitude for successful customary marine title applicants to declare supposedly sacred “wahi tapu” sites as sanctioned no-go zones.
Those who wander onto such forbidden ground are subject to providing their personal details to coastal Maori tribal wardens and $5,000 fines.
The MCA states that these wahi tapu are as defined in section 2 of the Historic Places Act 1993, namely “a place sacred to Maori in the traditional, spiritual, religious, ritual, or mythological sense”.
In other words, any old Maorified fictions suffice to create wahi tapu within a customary marine title, excluding and penalising New Zealanders despite “free” access to the foreshore and seabed.
Additionally, the sheer poison of “tikanga Maori” permeates the MCA, wherein it is tersely defined in part 1 clause 7 as meaning simply “Maori customary values and practices” (such as the authority to identify modern-day fairytale wahi tapu).
If doubt arises about what tikanga means, section 97 of the MCA requires the High Court to have the matter decided by either the Maori Appellate Court or a “pukenga” court expert, a last ditch if already Maori-biased stand of Western civilisation against the Maori sovereignty agenda.
The MCA notoriously also permits coastal Maori tribes to bypass the courts and go directly to a sympathetic “responsible minister” like former treaty grievance industry lawyer Finlayson, who probably wouldn’t get too bogged down in the legitimacy of claims to tikanga that bypass New Zealand’s courts.
In his infamous mock public consultation document on the Foreshore and Seabed Act 2004, Attorney-General Finlayson said of the supremacy of tikanga (p. 33):
“The government’s view is that its approach must accommodate these two sources of authority [ie., tikanga and common law] in line with the Treaty of Waitangi, its principles and associated jurisprudence.”
“The government’s approach applies aspects of tikanga Maori while also using aspects of the common law.”
On the web: http://www.bellgully.com/
First published in the NBR.
at 1:02 AM