Monday, November 8, 2010

Michael Coote: A Phoney War over the Foreshore and Seabed

The phoney war between the National Government and the racist Maori Party over the foreshore and seabed hotted up recently. A bogus screaming match erupted over whether the Marine and Coastal Area (Takutai Moana) Bill (MCA) should state explicitly that Joe and Jane Public were entitled to free access to 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:

First published in the NBR.


Anonymous said...

Are we really seriously considering returning to the stone age? Myth, legend, fairy stories and plain old fashioned lies will become founding principles of government, law and justice. Want to see how fast the outflux to Australia becomes? Meltown on the way.
It is embarrasing to even be a New Zealander in this farce.

anonymous said...

We are already in the business of myths, lies, fairy stories and so called legends. Oh what the Nats will do to keep the Maori vote. This will be the biggest division in our history.
Maori will be elite citizens and the rest of us only second class if the present government goes ahead with this legislation. We will be charged to go on to the beach to camp, fish, swim or even to sit on the sand

Anonymous said...

The problem arises as to how we will know which coastal areas are wai tapu sites and which are not. How will we know when the wai tapu sites change, or additional ones are added? Are the various kaumatua going to put notices in the main newspapers so we don't 'trespass?' Are we going to get the customary two warnings of trespass before wardens insist on personal details? (Or will that be ignored as mere Pakeha law?) And if I refuse to give my details? I am a woman in my seventies, but I would go to jail before I pay $5000 for inadvertently wandering onto sacred land. Not such so unlikely either; I have already had this happen when I drove down an apparently public road. I was ordered off "private land." There was no signage to tell me otherwise. Who is going to enforce this 'common law' when it takes effect - the police force? Or will there be a Maori court that has authority over non-Maori?

Anonymous said...

I'm a kiwi living for 20 years 12,000 miles away where I have chosen to make my home. Has the NZ Government "fixed" the water supply with some sedative? You should have buses burning on their backs in the streets over this! - any other country would be in revolt over a proposal half as insidious as this - its apartheid, its indisputably racist and its a massive and fundamental erosion of NZer's rights. STAND UP AND HAVE A REVOLUTION! BURN SOMETHING DOWN!

Anonymous said...

I have emailed vigorously on this subject and get no reply or the typical polyspeak. Haven't ever voted Labour, but will if this goes through.

Anonymous said...

I wont be charged for beach access because I wont be here....I dont want to be a NZr anymore...I am 4th generation but this is the final straw.

I love the NZ geography...but socially, racially and politically its horrible.

Anonymous said...

I'm afraid a civil revolt will be required before the present government takes any notice of 75% of the population. Perhaps burning a few buses is necessary. Dont wait for Labour to be any different, they will do whatever to get and keep the Maori vote. Shame on them all.
We will know the true agenda when the government wants guns back from non Maori owners. Just watch.