Further Q&A Discussions:

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Q. Is there any other model already available in New Zealand law for what could be enacted by Parliament in place of present outright Crown ownership but short of the untested innovation of "public domain"?

A: Yes.  The Government itself concedes there is such a model in RFSA.  In that consultation document is stated: "The government's proposal is not unprecedented. The Continental Shelf Act 1964 provides for a management and regulatory regime similar to the government’s proposal. That Act does not vest title to the continental shelf in the Crown, but specifies that all rights that are exercisable by New Zealand are vested in the Crown"  (p. 25). 

This raises a further question: Why isn't the Government considering standardisation of title arrangements for the foreshore and seabed that harmonise with the Continental Shelf Act 1964?  Wouldn't that be logical?  If foreshore and seabed rights were vested in the Crown on behalf of New Zealand, the Crown could defend these rights against coastal Maori tribal claims.  Under the ill-fated "public domain" concept, the Crown would forfeit such rights forever.  What does the Government mean by saying that the Continental Shelf Act 1964 is "similar to the government’s proposal"? 

What does "similar" mean in this context?  Presumably the Continental Shelf Act 1964 allows the Government to dispute claims and incursions upon our continental shelf by foreign sovereign powers, yet  it is utterly obvious from reading the RFSA that there will be no similar ability for any future Government to defend New Zealand's interests from claims and incursions from aspiring sovereign powers in the form of coastal Maori tribes. 

This just doesn't make sense.  Yet in the RFSA, the Continental Shelf Act 1964 option is not even explored as a model for what to do.  This is an extremely serious, irresponsible and patently deliberate flaw in the Government's proposals as set out in the RFSA, and concerned members of the public should be demanding an explanation of this glaring omission.

 More generally:

Q.  If the National minority Government were not in cahoots with the Maori Party in order to safeguard its ability to retain the Treasury benches after the 2011 general election, is it likely it would ever have proposed the "public domain" idea for non-ownership of the foreshore and seabed, thereby facilitating potentially limitless and perpetual Maori claims to exercising control over activities carried out thereupon?

A. Not likely.  It is one thing to abolish the Foreshore and Seabed Act 2004 as both the National Party and the Maori Party have sworn to do.  But this is an absolutely separate matter from what to do thereafter with title to the foreshore and seabed. 

The Government through the RFSA tries to confuse the two issues as if abolishing the Foreshore and Seabed Act 2004 necessarily leads to its proposed "final solution" in forever depriving the Crown of a significant asset it already owns in fee simple - the foreshore and seabed - in order to surrender that asset to the "public domain" rort. 

Let us not forget that National and the Maori Party started out from very different positions in opposing the Act, but what has happened since is that National has seen future general election advantage in capitulating to the Maori Party in offering an appeasement policy to coastal Maori tribes. 

Many voters might have believed that the National Party stood without compromise for the absolute sovereignty of our democratically elected Parliament in New Zealand, and they would equally have had good reason to believe that the Maori Party does not support such absolute Parliamentary sovereignty, but instead is committed to the position that the Crown - as represented by Parliament - is at most only an equal partner with sovereign and otherwise democratically unaccountable Maori tribes.

The aims and objectives of National and the Maori Party couldn't be more different - at least at the constitutional level - but for future electoral advantage National has decided to sell out all New Zealanders other than coastal Maori and prostitute the foreshore and seabed to domination by coastal Maori tribes who see control over that asset as critical to their drive to sovereignty.

Remember that United MP Peter Dunne has tried to take credit for originally proposing the "public domain" idea, yet no one else - not even National at the time - took that bait.  This "public domain" concept is not an original National Party idea.

Q. But Maori Party MPs have sounded as if the proposed "public domain" idea is not suitable to them?

A. They would, wouldn't they?  Their job is to use Trojan horse and thin-end-of-the-wedge tactics to erode the rights of other New Zealanders on multiple fronts in order to establish an apartheid state in New Zealand.  So certainly they are not going to come out and say that the RFSA is absolutely unacceptable.  They want to look disappointed so its seems like they have lost out, thereby cementing gains over the foreshore and seabed while laying the grounds for further claims and grievances, such as being "sold short" over National's current proposals if implemented.

The Maori Party's game, and the game of every other Maori vested interest like it, is to maximise the results of their claims incrementally, preferably secretly, and ideally by ways not always obvious in their strategic significance to outsiders, as they attempt to embed a racist society in New Zealand that privileges persons of Maori descent (PMDs) above all others in our society.

Q. What do you mean by PMDs?

A. The Pakeha Maori in our midst who want to exploit their Maori genetic inheritance politically in order to build a racist apartheid state that favours them and their descendents perpetually in law and public policy over all other New Zealanders.  Recollect that when former National Party leader Don Brash stated that there were no pure-blooded Maori left, the media turned the country upside down to find one. Find one they did - an elderly childless man in the Dargaville area.  But totally irresponsibly, the media failed to draw due attention to the fact they found no other pure-blooded Maori.

The reality these days is that Maori are - with one publicly known exception - Pakeha Maori, and that the kinds of land and sea grabs represented by the foreshore and seabed "final solution" the National minority Government is trying to foist on us are patently an attempt to appease and advance the Pakeha Maori agenda to lord it over all other Pakeha and every other ethnic group in New Zealand that does not claim genetic descent from the original pre-European Maori.  In other words - and excepting other ethnic groups - this foreshore and seabed issue is like so many others in being one group of Pakeha trying to oppress another in destroying legal equality and democratic rights.


More Questions & Answers on the Proposed Law by DAVID ROUND:

Just a handful of further questions and answers about the foreshore and seabed.

Q. If the government’s proposal is that the foreshore and seabed be held as ‘public domain’, and not as the property of the Crown, then what is the Attorney-General, a Minister of the Crown, doing handing out rights to it in private consultation with Maori?

A. A very good question. Next.

Q. The Attorney-General condemns the present Foreshore and Seabed Act on the ground that it takes away the right of one class of subject (Maori would-be claimants to foreshore and seabed) to seek their remedy in the courts. Yet the very same government of which he is a member, and indeed principal adviser on constitutional issues, has just made a statute, the Environment Canterbury (Temporary Commissioners and Improved Water Management) Act 2010, which (among other things) takes away the right of Canterbury communities to appeal to the Environment Court  in relation to an application already under way for a water conservation order, and even allows the government to, in effect, suspend the Resource Management Act. This statute has been described by Professor Philip Joseph, author of Constitutional and Administrative Law in New Zealand, as ‘constitutionally repugnant’ and a ‘constitutional affront’.  Would you detect an element of hypocrisy here?

A. I myself would not use the word hypocrisy. I would prefer something more like ’brazen perfidy’. But suit yourself.

Q. But surely the basic point is that Maori have lost their right to go to court to have their claims heard.

A. Two answers. First, that right to go to court, such as it was, had not existed since some time in the nineteenth century. It had been long extinguished, and that extinction was confirmed by the 1963 Ninety Mile Beach case. In 2003 an irresponsible and politically-inspired Court of Appeal decision summoned up this right from the dead, and it therefore existed for a year or so until the 2004 Act was made. But all the 2004 Act did was to restore a very long-standing status quo.

Second, it is a complete lie to say that after the 2004 act Maori do not have the right to go to court. If you take the trouble to read the Act, you will see that it makes ample and detailed provision for Maori now to go to the Maori Land Court and the High Court to have several sorts of customary right recognised.

Q. The Attorney-General has also claimed to be concerned about democracy. He points out that of the almost 4,000 submissions to the Select Committee hearing Labour’s Foreshore and Seabed Bill (now Act) opposed the legislation.

A. And I suppose he might add that about 40,000 marched against it. But then, when about 50,000 marched against the government’s mining-in-national-parks proposals just the other day, the government was able to dismiss that as just a vocal unrepresentative minority. And the government has no difficulty in depriving Cantabrians of their elected regional council completely. Cantabrians simply will not be able to vote for regional councillors at all in this year’s local body elections. So democracy really cannot be the reason. Recall the petition against the anti-smacking law; as I recall, more people voted against the anti-smacking law than voted National at the last election…

Q. Ngai Tahu, certainly, and I daresay other tribes also, were organising ~ orchestrating, one might even say ~ responses to the government’s proposals.

A. As they have every right to do. One has to admire their organisation, while at the same time regretting that most non-Maori New Zealanders appear to be permanently under the influence of some incredibly strong stupefying drug which deprives them of the ability to think or notice what is going on. Usually, however, whenever submissions to anyone on any topic are being considered, a distinction is drawn between carefully considered individual submissions and mere repetitive form letters. I doubt that the government will be drawing that distinction here, though; it will be only too eager to consider all submissions in favour as unprompted individual original thoughts.

Q. It would have to do the same to submissions against the proposals also.

A. True, but they actually will be individual thoughts, because there was no organised apparatus for generating huge numbers of submissions. On the contrary.

Q. How many submissions were made on the matter, actually?

A. Do you know, I don’t know. I’ve not seen the figure mentioned anywhere, and my Google search has not revealed any figure. Wouldn’t it be funny if a majority of submissions opposed the proposals? What would poor Chris do then? He placed so much faith in the number of submissions on the 2004 Bill. Someone should inquire under the Official Information Act. Muriel?

Q. Perhaps the figures are not out yet because the submissions have not been analysed yet.

A. Always a possibility. And what point is there in analysing them when the Prime Minister announced, just eight days after the closing date, well before submissions could be analysed, that the government was going ahead with its proposals?

Q. I thought I was asking the questions.

A. Sorry. Ask me a hard one.   

Q. The Attorney-General, leading these proposals, is also the very same man who, in his capacity as Minister for Treaty Negotiations, will be negotiating with the tribes coming to his door to claim customary title. Is that evidence of a conflict of interest?

A. Well, Ministers of the Crown often hold more than one portfolio, and other things being equal those two are not necessarily incompatible. What is really worrying, though, is his very obvious partiality. As a barrister he acted for Ngai Tahu, and has described their settlement with the Crown as one of the highlights of his life. He is still very obviously on their side. He has said that it would be preferable if Maori negotiated directly with him for customary title, and has shown every willingness to be prepared to grant it. He does not come across as an impartial appraiser.

Q. Maori would still have to prove customary title, though, wouldn’t they?

A. Well in one sense yes, but Chris will not be demanding very much proof ~ and his negotiations with claimants will not be subject to any form of public scrutiny, there will just be a deal struck in private. Moreover, a substantial element of the required proof will be ‘tikanga Maori’ and there will be no prizes for guessing what that will hold. I see that Ngai Tahu maintain that ‘mana is inherent and enduring’, and that iwi and hapu should not have to prove that their rights exist. Their rights should be presumed to exist, and it should be for the Crown to show that they have been extinguished. It is a reasonable conclusion, then, that Ngai Tahu may well claim that it still possesses a customary title, according to its own ‘tikanga’; and that being so, there will be an end of the matter.

Q. But there will still be public access.

A. For the time being, certainly. But I wouldn’t be surprised if at some later stage even that were to go. We should not necessarily see this proposal as the last step. It is only one stage in a long process. This customary title could well develop into a fuller ownership, especially as the phrases ‘public domain/takiwa iwi whanui’ have not yet been defined. But customary title holders will at once be able, under an amended Resource Management Act to have very substantial influence on developments in the entire coastal area. They will be able to approve or refuse approval to all applications for coastal permits, and will not even have to give reasons. Nothing will be able to be done without their permission, for which, of course, payment might well have to be made…..

Q. Shouldn’t we just trust the government?

A. In my great-great uncle’s immortal words, still quoted in the family, ‘if you trust anyone, you’re simple’. Most particularly you should not trust governments. Sacred Scripture, as I recall, also tells us ’Put not your trust in princes’. All democratic constitutional arrangements are based precisely on the principle that we cannot trust our rulers. If we could trust them, we would not need democratic elections and accountability. Don’t be a fool.

Coastal Maori Tribes Clear Winners of Foreshore Review by MICHAEL BARNETT

With around 90 per cent of Auckland’s pristine coastline subject to control by local Maori hapu or iwi groups under new foreshore legislation Government is proposing, how Auckland’s beaches and harbours can be used by the rest of the community face huge uncertainty and a major shakeup.

Everyone from big business to individual Aucklanders, including Maori without the privilege of belonging to a coastal iwi or hapu group, will be subject to new rules on whether they can have access to and how they make use of the Waitemata, Manukau and Kaipara harbours and their beaches.

Simple examples of the scale of change that could be ahead is someone wanting to sail, surf or paddle a canoe in a coastal area under the control of a hapu or iwi. Under the proposed provisions, they will be able to traverse through the hapu area but will need permission to continue to recreate in the hapu’s allocated coastal area.

For all practical purposes, swimming, boating and fishing – and other recreation activities - will become impossible without the approval of and paying the fee that may be charged by iwi and hapu groups who will be granted control of the foreshore and seabed in Auckland’s three harbours and the Hauraki Gulf.

Examples with major consequences to the Auckland’s (indeed New Zealand’s) economic development and common law rights and practice centre on the fact that hapu and iwi granted control of a coastal area will have the right to propose any development they decide for the area. While they would still be subject to RMA assessment, what a scenario like this could produce is a conflict between hapu/iwi and the consenting authority over decision outcomes.

But that’s just half of it. This new approach will confer on hapu/iwi who have established a customary title over a particular coastal area the power to veto or support resource consent applications by any other group.

I suggest that this will be unacceptable to the overwhelming major of New Zealanders. It puts a select group in a privileged position of picking winners of who can be granted powers to refuse or grant their permission for a resource consent application to proceed. No other group has this privilege.

To all intents, use of Auckland’s three harbours and the Hauraki Gulf (outside the Hauraki Gulf Park) for a distance of up to 22 km (12 nautical miles) offshore will be locked up and dictated by selected and privileged Maori interests.

Everything from public access to a simple boat ramp, jetty, marina and moorings to an aquaculture, fishing or marine farm initiative in any of the three harbours will be subject to an agreement – no doubt for an entry fee or exclusive use lease – with a hapu or iwi holding a title to control a particular coastal area.

When launching the foreshore review, the government claimed that public access and use for fishing, boating and other recreation purposes will be guaranteed to all unallocated foreshore and seabed areas and be free. 

But this misses the point. The overwhelming majority of the coastline of Auckland’s three harbours and the Hauraki Gulf has a long Maori customary usage tradition dating back well before European settlement. Conservatively, around 90% of the Auckland shoreline will be up for claim for allocation and control by a hapu or iwi of a coastal Maori tribe. 

Don’t be fobbed off if you believe that these proposals are so outlandish they couldn’t possibly be put in place. The proposals in the Government’s consultation document are very clear and unambiguous.

To quote the document: “The new legislation would create a new form of recognition not currently accommodated in our land law system.” This would be called “customary title” and give a hapu or iwi granted such a title the right to permit or not permit activities – including commercial benefits, a major say in conservation processes and what should or shouldn’t be included in regional and district plans.

True, nothing changes for use of the coast unless there is a coastal iwi or hapu title that has been designated. Equally true is that it will take some time – possibly years – for a hapu or iwi to be granted such a title.

However, if a prospective applicant knows there is a claim in an area for territorial interests this would be a disincentive to proceed with the application. And given that up to 90 per cent of the Auckland foreshore is subject to these awards this will act as a disincentive for applications generally.

Also, the nature of the consenting process in Auckland will change dramatically. There would be an additional step for applications to go through (i.e. getting hapu/ iwi approval) before they are subject to the RMA and administered by the new Auckland Council. All this will add cost and time.

But this misses the real point of why this issue is not just urgent but demands the attention of anyone and everyone who cares about the future of Auckland (New Zealand) and the quality of life we are privileged to be able to enjoy.

It is introducing a new system giving preferential treatment to certain types of applications where hapu/iwi could get a backdoor benefit from the application should it proceed and be approved by the Council.

It is simply unacceptable in a democracy to start a process that grants exclusive privileges and rights to a particular group above the rest of the community.  In this instance it happens to be our pre-eminent marine environment. What and who will be next?

Michael Barnett is chief of the Auckland Chamber of Commerce and a councillor of the Auckland Regional Council

Putting Us In Our Places by CHRIS TROTTER

No Friend of Dissent: Like many Pakeha politicians who have embraced the Maori Nationalist cause, Attorney General, and Treaty Negotiations Minister, Chris Finlayson, reserves his most deadly venom for those who dare to question the State's race relations policies.

AM I THE ONLY New Zealander feeling less than a respected citizen today? Or that the full and equal protection of the laws no longer applies to me? Am I alone in suspecting that, constitutionally-speaking, something important is about to take place – without the nation’s consent?

What set me to pondering these questions was an extraordinary interview broadcast by Radio New Zealand on Tuesday morning.

Morning Report’s Geoff Robinson was talking to Treaty Negotiations Minister, Chris Finlayson, about the agreement secured between National and the Maori Party over the repeal of the Foreshore & Seabed Act.

Preceding the interview listeners had heard reactions to that agreement from Dr Grant Morris, a law lecturer at Victoria University. Michael Barnett, CEO of the Auckland Chamber of Commerce. And Hugh Barr, spokesperson for the Coastal Coalition – a group devoted to preserving public access to New Zealand’s beaches.

All of these men had expressed critical views of the National-Maori Party deal and Finlayson had been asked to respond to their remarks.

What followed was extraordinary.

Rather than address the trio’s arguments, the Treaty Negotiations Minister immediately launched into a series of aggressive put-downs of his critics.

I didn’t know that Grant Morris knew anything about this subject," sneered the Minister, "I thought his specialty was legal systems or feminist legal studies." Michael Barnett, according to Finlayson was "just sounding off because it’s Tuesday morning". Hugh Barr received a ministerial tongue-lashing for "writing some crummy article in The Dominion Post which contradicted everything I had told him."

Huffed Finlayson: "I can’t be bothered wasting my time with him."

But, oh, what a difference a change of ethnicity produced in the Minister. When Morning Report asked for his reaction to the Maori MP, Hone Harawira’s, charge that the whole consultation exercise surrounding the Foreshore & Seabed issue had been "bullshit", the Minister couldn’t have been sweeter:

"I’m a bit disappointed in Hone," crooned Finlayson, "because in my opinion he’s a first class chap, and he’s a fantastic MP for the Far North, with John Carter. But one of the things I picked up, from his rohe [tribal territory] actually, was the idea that folk didn’t want to have to go to court, or negotiate, to prove their mana. And I thought that was a fair enough point. So, we’ve added in the universal recognition order as a result of that. So, I think Hone’s a little unfair, with the greatest of respect to him, because I was listening and I was the one who was up on the road hearing what people were saying."

The contrast: in the Minister’s tone; in his careful choice of words; and most particularly in the extreme care he took not to give offence; was, to say the least, instructive.

The Minister’s Pakeha critics: the CEO of the Auckland Chamber of Commerce (an institution not noted for its hostility to National governments); a university lecturer whose comments were measured and utterly lacking in any kind of personal animus; and a champion of New Zealanders’ right to recreate themselves amidst this country’s spectacular natural beauty; were all the recipients of Finlayson’s disdain, and he expended no serious effort responding to their arguments or questions.

How different it was for the Te Tai Tokerau MP. The man who infamously referred to his fellow New Zealanders as "White Motherf***ers" was responded to with "the greatest of respect" because, in the assessment of the Treaty Negotiations Minister, he is "a first class chap" and, like his colleague, John Carter (the National MP who once impersonated a Maori dole-bludger on John Banks’ Radio Pacific talk-back show) is "a fantastic MP for the Far North".

The Minister’s Pakeha critics had dared to suggest that the interests of thousands of New Zealanders had been sidelined in the Government’s rush to reach an agreement with the Maori Party.

As Mr Barnett observed: "We still don‘t know what contact has been made with the recreational and conservation interests, the business interests, the local government interests. But we do know that Government has been dealing with Maori, and that it doesn’t seem to be the so-called ‘balanced’ conversation that they suggested that they were going to have."

Mr Harawira colourfully described this one-sided process as "pandering to the rednecks".

Would that it were so.

This essay was originally published in The Timaru Herald, The Taranaki Daily News, The Otago Daily Times and The Greymouth Evening Star of Friday, 18 June 2010.