Saturday, April 17, 2010

Mike Butler: Finlayson prickly on referendum

The government wants an enduring solution to the foreshore and seabed issue but the attorney general does not want a binding referendum. Attorney general Chris Finlayson got prickly at the suggestion of a binding referendum at a public meeting in Napier on Thursday night, one of a series throughout the country, although he did note that constitutional arrangements exist for a citizens-initiated referendum.

About 40 people, including many writers of letters-to-the-editor of the local newspaper, listened as Finlayson briefly outlined why he was revisiting the issue. He noted that other meetings featured low turnouts.

The issue is back on the table because the Maori Party’s wants the Foreshore and Seabed Act 2004 repealed; and repeal forms a part of the confidence and supply agreement that stitches together the current government. The 2004 act:
1. Vested ownership of the public foreshore and seabed in the Crown.
2. Extinguished any customary title, the extent of which was unknown at the time.
3. Had no effect on customary use rights.
4. Prevented the Maori Land Court from investigating foreshore and seabed applications.
5. Removed the High court’s power to determine claims for customary title.
6. Set up processes for recognizing two types of customary interest – territorial customary rights, which is a new form of customary title, and customary rights, for activities that do not require land ownership.

Finlayson, who has described the 2004 act as "discriminatory and unfair", has proposed that:
1. The 2004 Foreshore and Seabed Act would be repealed and a new law passed which vested the foreshore and seabed as public domain/takiwa iwi whanui.
2. Tribes could go to the High Court, or negotiate with the government, to have customary rights recognised, including customary title.
3. Customary title would not be equal to freehold title but would have rights attached likely to include the right to decide how that area was used, such as by having veto rights over developments.
4. Each tribal group would have to meet a series of tests before customary title was awarded. Those who did not reach it could have lesser rights recognised.
5. Tribal groups no longer need to have had unbroken title to adjacent land since 1840. Instead, they will have to show only exclusive use of the area over other tribal groups.
6. The new law would guarantee public access, except where unreasonable, and guarantee the rights of existing private owners. Those with fishing quota would not be affected.
7. The Crown would retain the role of managing resources such as granting coastal permits.

During question time, former Hawke’s Bay Labour MP Bill Sutton congratulated Finlayson on his more liberal position compared with those of former National Party leader Don Brash. Yet he expressed concerns about the transparency of direct customary title negotiations.

A Grey Power representative read out a statement supporting the 2004 Foreshore and Seabed Act and opposing proposed changes. A veteran kayaker read out another statement opposing the changes.

A large man with a bristling grey beard said, in a Dutch-sounding accent, that he had been in New Zealand since 1974 and wanted the treaty to be honoured. Older New Zealand-born citizens with forebears who landed in New Zealand well back into the 19th century may have bristled at the suggestion. I wondered how those descended from Kahungunu and Kupe felt about such “upstart” remarks.

As members of the audience stood up to ask their questions or submit their view it became obvious that each was affirming a closely held belief. The issue is not about barbies on the beach; it is about a fundamental human desire for equal treatment. If the government makes a legislative tilt in favour of one group, the other will feel marginalised.

At the same time, it must be frustrating for the attorney general, with his sharp mind and extensive legal experience, to present a complex legal problem to the great unwashed. Therefore, it is easy to understand why he would get prickly about having a binding referendum on such an issue, since few would understand the legal subtleties.

Nevertheless, in the same way that thought is guided by underlying beliefs, the problem that New Zealand faces is that the political-academic-legal establishment has been captured by the two-world treaty partnership philosophy, while the great unwashed tends to believe that there is one nation in which all are entitled to equal treatment under the law.

The foreshore and seabed wrangle started with the rejection by Marlborough District Council of applications for mussel farm licences by a group of local tribes.

That group, Te Tau Ihu o Nga Waka, continued its claim, but based on customary title. In 1997, group members began collecting evidence that commercial access to their traditional area of food gathering and the lucrative Marlborough Sounds aquaculture industry was being restricted.

They hoped that by legally defining their customary title over sounds foreshore and seabed would help them negotiate a slice of the area’s $50-million aquaculture business. They took their case to the Maori Land Court, where Judge Heta Hingston ruled the court did have jurisdiction to consider whether foreshore and seabed is Maori customary land, but noted that it would be difficult to prove. The Crown appealed to the Maori Appellate Court, which sent the case to the High Court to determine points of law to decide whether or not the Maori Land Court could preside.

The High Court reverted to a 1963 case in which the Maori Land Court heard a case on behalf of Muriwhenua Maori claiming ownership of the Ninety Mile Beach foreshore. That case ruled that customary rights to foreshore land ended when the adjoining land was sold.

With regards to the seabed, the High Court cited the Territorial Sea, Contiguous Zone and Exclusive Economic Zone Act 1977 and the Foreshore and Seabed Endowment Revesting Act 1991 as placing ownership of the seabed with the Crown “for the common good”.

Unhappy with this finding, Te Tau Ihu o Nga Waka appealed. The June 2003 Court of Appeal Ngati Apa decision determined that the Maori Land Court could investigate claims that areas of the foreshore and seabed had Maori customary land status under Te Ture Whenua Maori Act 1993. It did not determine whether parts of the foreshore and seabed were Maori customary land.

The 2004 act was a response to the Ngati Apa decision.

The question I wanted to ask Finlayson was that since the general understanding among everyone, even the Court of Appeal in 2003, was that customary title, if it still existed at all, would be found to exist only in a very few places, would the proposed more liberal definitions and tests make customary title much more common?

The foreshore and seabed issue has been one of the most significant points of contention in New Zealand politics. The Labour government's popularity was severely damaged by the affair.

Finlayson’s National Party is very different from that under Brash, whose speech at Orewa on January 27, 2004, warned of “a dangerous drift towards racial separatism”. The government of the day and numerous Maori groups condemned the speech, but shortly afterwards, an opinion poll put the National Party ahead of the Labour Party for the first time in over 18 months.

For those interested enough to put in a submission, the consultation document lays out the issues and provides a submission form with 27 specific questions and space for comment. You may not get a binding referendum but you are being given a chance to have your say. The form may be downloaded from Submissions are due by 5pm April 30, 2010.

Reviewing the Foreshore and Seabed Act 2004 Consultation Document
Foreshore and Seabed Act – from mussel farm to Beehive Newswire April 17, 2010

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