Thursday, March 17, 2011
Mike Butler: Tikanga in wonderland
Labels: foreshore and seabed
The Coastal Area Bill defines the word “tikanga” as meaning Maori customary values and practices, but offers no indication of what these are in relation to the foreshore and seabed.
Calvert said: "So we are to believe that this Alice in Wonderland word, a word that can be defined by the person claiming some property in our coastal land, creates legal rights based entirely on the say-so of the claimant. We might just as well ask iwi for a list of what they want and put through a legal transfer."
Later in the evening she questioned Maori rights to relating to the seabed saying it was questionable that historical use any distance from shore happened.
The Maori Party, as the only race-based party in Parliament, was quick to slam the comments as racist. Maori Party co-leader Tariana Turia called the comments ignorant and said that “when someone denigrates another culture then for me that's racist."
Fellow Maori Party MP Te Ururoa Flavell, issued a press statement accusing ACT of running an anti-Maori campaign and saying Ms Calvert had become "the mouthpiece for the redneck and racist rhetoric that the ACT Party is known for". He sent the email to media outlets and later withdrew it.
Aside from the allegations of racism, neither the Maori Party nor Attorney General Chris Finlayson addressed the points that Calvert raised.
It appears that Finlayson knows that what Calvert was saying is correct, based on comments he made at a meeting in Napier last November. Then, he said: “While the Court of Appeal found that the Maori Land Court had jurisdiction to determine whether any part of the foreshore and seabed was Maori customary land, it did not set up a test.” That test remains to be created, and that is precisely what Finlayson is seeking to do in this bill. He said: “Judges and courts will develop tikanga, which is a source of law, into law, which would eventually be codified into statutes.”
So Calvert is right. Finlayson has created a process whereby legal rights may be created on the say-so of a claimant, and this process is about to become law.
Another of all the worrying aspects of Finlayson’s atrocious Marine and Coastal Area (Takutai Moana) Bill is the woeful media coverage. TV3’s 10.30 bulletin on Wednesday, March 16, is an example of the slanted, piecemeal coverage dished up by mainstream media. The voice-over, and selection of quotes and video combined to present Calvert in the most demeaning way verging on defamation. Coverage of the House is covered by qualified privilege, which means that proceedings in parliament may be covered so long as the coverage is fair and accurate. I have reproduced Calvert’s speech and the TV3 coverage for you to decide for yourself whether TV3 was fair and accurate in its coverage.
HILARY CALVERT (ACT) : Tau Henare was right when he said that I was at many of the select committee hearings on the foreshore and seabed legislation. One of the submissions that I particularly noticed was one made by Business New Zealand on behalf of 76,000 employers and business groups. It talked, in particular, about the preamble. It talked about what the Marine and Coastal Area (Takutai Moana) Bill is all about, and it said that it was there for six reasons: to uphold and protect property rights; to be consistent with the Treaty of Waitangi and relevant common law; to bring legal clarity and certainty; to facilitate economic development for Māori and non-Māori; to integrate with other relevant legislation, including the Resource Management Act; and to satisfy overall justice and fairness, including appeal rights and remedies.
As has been mentioned earlier, the Prime Minister has said that unless this bill had widespread support he would not be supporting it. Those 76,000 businesses and organisations looked at these six criteria, thinking that these were the six things that this bill should be doing, and said that this bill breaches all six of them. The first reason for the proposed legislation was to uphold and protect property rights, and Business New Zealand said a variety of things, but at the end it said that the substitute rights that the proposed legislation would create bear no comparison to the property rights assured by the Treaty of Waitangi, and even the highest category proposed, the customary marine title, would restrict iwi and hapū to blocking the proposal of others as the main way to extract tangible returns, rather than allowing them to gain full benefit of recognised orthodox property rights.
When Business New Zealand talked about whether the proposed legislation would be consistent with the Treaty of Waitangi and relevant common law, it said: “The Bill is inconsistent with common law in promoting a special status of common marine and coastal area that is contrary to the common law doctrine of eminent domain under which the absolute ownership of all land lies with the Crown.” It said: “Giving away the common law doctrine of eminent domain in relation to the marine and coastal area would leave nowhere for any currently freehold land to revert to should it not be possible to find someone to whom private ownership could pass. This could result in neglected, decaying and dangerous structures for which there would be no-one to take responsibility. The Bill expressly denies exclusivity of use of areas under the interests created for iwi, except where reclamations are completed”.
When looking at whether the bill creates legal clarity and certainty, Business New Zealand said that the exclusion of freehold land in defined areas would mean that land can become part of the common area by, for example, erosion, and by contrast land that moves beyond the line of mean high-water springs reverts to Crown ownership. “Crown ownership of minerals (other than those designated as the property of the Crown) continues until any such are found within a customary marine title group area. At that point Crown ownership ceases and ownership moves to the relevant iwi group.” Importantly, Business New Zealand said: “Rather than promoting legal clarity and certainty, the exceptions cited above demonstrate the uncertainty and complexity contained in the proposed legislation.” That is uncertainty and complexity in so far as it could facilitate economic development for Māori and non-Māōri. It said: “This approach would also take no account of the time effect of transactions and the ongoing refinement of terms and conditions to suit particular prospective buyers and sellers. For example, a falling market might mean the owner had to start afresh when a price moved above market, to ensure a sale was not ‘more favourable’; on a rising market the opposite would prevail. This level of complexity for what should be a straightforward transaction illustrates the difficulties for economic development that could result from the proposed legislation.”
So it does not satisfy the supporting economic development for Māori. The submission then asked whether the proposed legislation would integrate with other relevant legislation, including the Resource Management Act 1991. Clearly, we will hear a lot more about this later in the bill, but it is Business New Zealand’s view that the bill should integrate with other relevant legislation and it fails to integrate with the Resource Management Act.
As for whether it would satisfy overall justice and fairness, including appeal rights and remedies, legislation of this kind must be balanced, but there must be concern about the differences of interpretation this bill has received, doubtless fostering public confusion. If it became law, many people could perceive the legislation as unfair, particularly in light of the kinds of issues raised in the submission.
On the question of appeal rights, the relationship between applications for recognition by agreement and for recognition by order of the High Court is unclear. With the responsible Minister able to enter into an agreement to recognise a protected customary right, it is not apparent why any group would apply to the High Court for a recognition order. The only reason would seem to be uncertainty whether the Minister would be prepared to grant recognition. And although there can be little concern that favouritism would be a feature of ministerial decision-making, grants of recognition left to the Minister’s discretion would invite accusations of this sort. If recognition was not granted, the further question would arise whether the group involved might then apply to the High Court.
The preamble also describes this legislation as taking into account the intrinsic and inherited rights of whānau, hapū, and iwi derived in accordance with tikanga. Tikanga is an Alice in Wonderland word. It means whatever the Queen—I think it was the Red or White Queen—said it would mean, no more and no less. The preamble goes on to state that “It translates those inherited rights into legal rights and interests”. So we are to believe that this Alice in Wonderland word, a word that can be defined by the person claiming some property in our coastal land, creates legal rights based entirely on the say-so of the claimant. We might just as well ask iwi for a list of what they want and put through a legal transfer. Thank you.
HILARY CALVERT (ACT) : I will talk about three things in relation to Part 1 of the Marine and Coastal Area (Takutai Moana) Bill. I want to talk about the seabed, airspace, and accommodated activities.
I will start with the seabed. Historical use of the seabed any significant distance from the shore seems impossible to prove, and allowing title to be granted to iwi allows for unjust and potentially divisive future claims. Historically, no one has crawled about on the seabed miles from shore.
Hon Tariana Turia: How do you know that?
HILARY CALVERT: There is no chance of anybody holding their breath on the seabed from 1840 till now—that just cannot happen. From the 18th century to the 20th century, the Commonwealth generally considered territorial waters to extend for 3 nautical miles. That distance was the length of a cannon shot, and thus the distance of water a nation could defend from—[Interruption]
Hon John Boscawen: I raise a point of order, Mr Chairperson. I am sorry to have to interrupt my colleague, but I am hearing harangues from Labour Opposition members. I also have to listen to continued interjections from Tariana Turia. The reason I specifically object is that when I gave my speech in the first reading debate, Tariana Turia lodged a point of order objection to me, complaining—
The CHAIRPERSON (Eric Roy): The member must address those matters at the time. We do not deal with historical matters here. I will deal with the matter of noise in the Chamber. This is a reasonably impassioned debate, and at times the noise levels have come up and gone down. Overall, I think the noise levels are reasonably acceptable, but from time to time I need to caution members, and I think we need just a bit of decorum and a wee reminder of that.
HILARY CALVERT: The Hon Turiana “Turei” seems to believe that—
Hon Tariana Turia: I raise a point of order, Mr Chairperson. If the member is going to use my name, she can pronounce it correctly. I am offended that she does not.
The CHAIRPERSON (Eric Roy): That is correct. Members need to take a bit of care about these matters.
HILARY CALVERT: My apologies. The member who interjected suggested that I do not know whether somebody could have held their breath on the seabed since 1840. Perhaps I do not know, and perhaps she does not know either.
As I was saying, we have had territorial waters extending to 3 nautical miles. That distance is the length of a cannon shot, and was what people could defend. Putting aside the distinct lack of cannons in 1840, and any ability for anyone living in New Zealand at that time to defend even that region, it is quite clear that nobody has ever had the exclusive use and occupation of the seabed beyond that mark—let alone to the 12 nautical mile limit that came in only last century. It should therefore be near to impossible to grant any title to any iwi claiming such rights. That does not mean, however, that the courts do not know something I do not, and that aspect of that legislation should not be tried by the courts.
I turn to the airspace. The bill’s explanatory note states that the foreshore and seabed is “the area from the high-water mark at mean high-water spring tides extending seawards for 12 nautical miles. This area includes the subsoil and the waterspace and airspace above this area (but not the air or water itself).” What is the airspace? ACT wants the foreshore and seabed issue to be left to the courts where it belongs, but in a perverse way we may get our wish. One can see the definition of airspace going to court time and time again, as we are forced to deal with questions like whether paragliding businesses will have to pay whenever they take somebody paragliding in the airspace—or the air? How tall does a ship’s mast have to be before it is in the airspace? What about surfcasters who throw their lines across the air into the water? It may sound crazy, but for those directly affected by this bill—those whose livelihoods are at stake—it is very serious indeed.
The third point I would like to make—
Hon Tau Henare: Tonight we are witnessing the discovery of a new planet. It’s time to go home.
HILARY CALVERT: Certainly, the honourable, interjecting member can take a call any time he wants to, if the Chair allows it. The definition of “accommodated activity” has been changed on Supplementary Order Paper 207, put forward by the Minister in the chair, Chris Finlayson. The definition no longer includes activities that can be lawfully undertaken without resource consent. In practice, this will mean that activities that never needed resource consent may be controlled by the holder of a customary marine title. The intention of the bill was to allow things that were already going on to continue, and for anything that currently has resource consent to be able to continue. I am sure the Minister is a meticulous person, so presumably he left out on purpose the definition that included—
ACT MP labelled 'racist' over foreshore remarks
WED, 16 MAR 2011 6:34P.M.
ACT MP Hilary Calvert has been labelled a racist, over a speech she made in Parliament last night.
During debate on the marine and coastal bill she called tikanga – or Maori customs – an “Alice in Wonderland word” which could be defined different ways.
She also said Maori couldn’t prove customary title to the seabed.
“No one historically crawled about on the seabed, miles from shore,” she said.
“There was just no chance of anybody holding their breath from 1840 until now on the seabed – that’s not going to happen.”
Today, Ms Calvert avoided the media.
Her comments didn’t go down well with either side of the house, but ACT deputy leader John Boscawen did his best to defend her.
“I’m sorry to have to interrupt my colleague but I’m having the harangues here from the opposition, the Labour opposition, and I’m also have to listen to continual interjections from Tariana Turia,” he said in Parliament.
Ms Calvert continued: “The honourable Tariana Turia seems to believe that –“
“Point of order,” Maori Party co-leader Tariana Turia interrupted, “If this member is going to use my name, she can pronounce it correctly. I’m offended that she doesn’t.”
And Turia wasn’t the only one offended by Calvert’s speech.
Attorney General Chris Finlayson labelled Ms Calvert’s comments “unpleasant”.
A comparison between the practice of Tikanga and the Alice in Wonderland fairytale were enough to push Ms Turia over the edge.
“We’re not allowed to refer to those matters in the house, but when somebody denigrates another culture then – for me – that’s racist,” she said.
Ms Calvert at least had enough judgement to avoid Ms Turia today – probably a wise call.
at 2:45 PM