Monday, May 3, 2010
David Round: National wants to sell us down the riverLabels: David Round, foreshore and seabed, Justice, Maori, Treaty of Waitangi
For many years it was absolutely clear that the Crown, and therefore all of us, owned the foreshore and seabed. In the 1963 Ninety Mile Beach case the Court of Appeal affirmed this very clearly, that Maori had no right to claim title to that land in the Maori Land Court. Very few people had any problem with this.
New Zealand law has long been that the Court of Appeal will overturn its previous decisions only after very careful thought and only in certain closely-defined circumstances. But in 2003 another Court of Appeal, presided over by an activist Chief Justice with a pronounced political agenda, leaped in to make a disgraceful and blatantly political judgment. The court overturned the Ninety Mile Beach case, threw into confusion every Act of Parliament enacted on the basis that that decision was correct, and declared that Maori did have the right to seek customary title before the Maori Land Court.
It was this decision that the Labour government reversed with its 2004 Act of Parliament. Nearly all the Maori opposition to that Act was based on the completely mistaken belief that the Court of Appeal had said that the foreshore and seabed was owned by Maori. The Court of Appeal had not said that at all. It had said (reversing long-established law) that Maori could make a claim to title in the Maori Land Court. But the court did not say that any claim would necessarily succeed, or that one square inch of foreshore and seabed actually belonged to Maori. The court suggested, in fact, that the particular claim before them, whose merits they did not consider, would probably fail. But their decision has been widely misunderstood ~ as the judges, if they were not complete fools, must have realised that it would be ~ and most if not all of the Maori outrage at Labour’s statute was based on the completely erroneous belief that the court had declared foreshore and seabed to be Maori land, and that the Act was therefore seizing Maori property. It was not. The act merely restored the situation to something like the status quo before the Court of Appeal’s 2003 decision. It also allowed for the recognition of several sorts of ‘customary rights’, and all in all gave Maori more than they would have been entitled to had the 2003 case been allowed to stand.
The 2004 Act has also been condemned because it took away a Maori property right, being the right to seek the vindication of ones title in court. But this ‘right’ was given to Maori only in 2003; again, the 2004 Act just restored the status quo.
Many Maori have no problem with the 2004 Act. Ngati Porou, for example, have already reached agreement with the Crown on management arrangements under it. Other tribes might well also have been willing to make such arrangements had the chance not arisen to obtain more advantage from this latest appalling proposal.
Do not believe the carefully-planted gossip that Mr Finlayson’s proposals are just Labour’s Act repackaged. Do not be misled by the promise that it will still allow public rights of access. Access will remain, at least for the time being; but a lot of other things are proposed too.
The proposal is to declare the foreshore and seabed to be ’public domain/takiwa iwi whanau’. This is said to ‘express the essence’ of the new approach. What do these phrases mean? No-one knows. ‘Public domain’ is a phrase known only to copyright law, and ‘takiwa iwi whanau’ is nowhere defined. It is utterly unsatisfactory that the foreshore and seabed be turned into an unknown and undefined concept. Be sure that in a few years some Maori claimant will be arguing that this Maori phrase imports special Maori privileges. Undefined words are a blank cheque for whomever interprets them. Kawanatanga, taonga and tino rangatiratanga have proved to be conveniently elastic in meaning and interpretation. A consultation document which expresses its essence in an untranslated and undefined ~ and, I suspect, just invented ~ phrase is a pig in a poke. Buyer beware.
Worse follows. The proposal is to allow Maori to seek ‘customary title’. Indeed, the Attorney-General has said that public domain ’is a useful staging-post so that we can enable folk to investigate customary title’. He is actually promoting it. There is, though, virtually no New Zealand law as to what this customary title involves, so Mr Finlayson proposes to create tests ‘based on tikanga maori and common law’. Can there be any doubt as to what ‘tikanga maori’ will maintain? Even the Court of Appeal in 2003 thought that it would only be rarely that claims of customary title would succeed, but the tests as Mr Finlayson proposes them are sufficiently generous to allow very widespread customary title ~ which is indeed his avowed intention.
But even worse, Maori will not even have to go to court to establish their title by these new relaxed rules. They will be able to obtain title by unscrutinised private negotiations with Mr Finlayson and his successors, and Mr Finlayson would prefer that. I am sure Maori would too. Mr Finlayson makes it plain the Crown will be generous with our property. We are going to see an entirely new enormous round of claims, as all around our coasts iwi have another bite of the cherry and claim yet more racial privileges, disguised as ancient rights. Shane Jones M.P. has already suggested that Ngai Tahu, for instance, hope to achieve customary title for nearly all of the South Island. I would be surprised if that were not so.
And what will ‘customary title’ mean? Iwi coastal planning documents will have status and authority under the Resource Management Act, and will have to be respected by local government and government departments such as Conservation and Fisheries. Iwi would have an absolute right of veto over any activity requiring a coastal permit. They would not have to give any reason for their decisions. They could decide, for example, that whitebait stands (which require coastal permits) were henceforward to be granted only to Maori, or that anyone else who wanted one would have to pay a fee ~ no doubt for worthy cultural purposes. They might allow resorts and hotels along the coast. Mr Finlayson accepts this, arguing only that such proposals would be subject to the pretty useless Resource Management Act and our toothless overseas investment laws, both of which are actually being further emasculated at present. Iwi will be able to refuse consent to conservation proposals and applications. The allocation of coastal space for marine farms would be done in conjunction with the input of iwi with customary title, and they will also have ‘an enhanced role’ in relation to decisions on coastal structures. Money will pass hands every time. Poor white people watch out.
These proposals are not yet government policy. I suspect ~ I certainly hope ~ that many Ministers simply do not realise that Mr Finlayson wants to sell us down the river. I doubt Mr Finlayson’s sincerity when he says he wants to hear our views. He is in a hurry, and has only given us until the end of the month to tell him. Anyone with half a brain would actually be well aware of what our views are. Mr Finlayson, anxious to show he cares, and seduced by plausible con-men, is following in Sir Douglas Graham’s disastrous footsteps. He is anxious to stitch up a deal with a small racist party for his own short-term political gain. We should take the long view. It is time ~ actually it was time some time ago ~ to say that enough is enough. On the beaches we should draw a line in the sand. For heaven’s sake wake up, New Zealand. Otherwise this latest theft of our rights will not be the last either.
at 1:14 AM