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Michael Coote
Michael is a regular columnist for the National Business Review

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Revisiting the Foreshore and Seabed Act 2004
Michael Coote
18 April 2010

The article that follows under the headline “Business beware: Maori sovereignty is landing on a beach near you” was originally published in my National Business Review website column.

What the column states still stands valid, but since it was published events have moved on and led to further reflection on what needs to be pointed out about the government’s proposed “final solution” for the foreshore and seabed of New Zealand.

First up, let us refresh our memories as to what the foreshore and seabed is legally defined as being.

Prime minister John Key for one keeps deliberately trivialising what the foreshore and seabed is all about by cynically rabbiting on about Kiwis retaining the right to walk along the beach and cook up a barbie there.

He knows better, but does not want the political inconvenience of the broader New Zealand public becoming aware of and engaging with what the real issues are.

Maori tribes and Mr Key’s own government know only too well, as does the racist Maori Party and its behind-the-scenes Maori sovereignty string pullers.

For Maori the foreshore and seabed brouhaha is about racially privileged gold digging at the expense of the rest of New Zealand society.

Legally (quoting from “Revisiting the Foreshore and Seabed Act 2004”/RFSA, pp. 49 - 50), the foreshore and seabed is: “the area between the line of mean high water springs on its landward side and the outer limits of the territorial sea (12 nautical miles) on its seaward side, [including] the air space and water space above the land, and the subsoil, bedrock and other matters below [and] the beds of rivers that are part of the coastal marine area.”

Mean high water springs (MHWS) is “the inland boundary of the ‘foreshore and seabed’ as defined in the Foreshore and Seabed Act 2004. The 2004 Act does not define MHWS. ‘Spring’ tides are the highest tides and occur twice a month.”

Thus what is meant is the distance from the average high tide mark to twelve nautical miles out to sea and everything above and underneath that.

I invite you to reflect on that definition to see if you can discover many traditional Maori concepts relating to customary ownership.

Yet opening up that vast natural domain – remembering that New Zealand has an enormous coastline – to Maori tribal claims of rights and titles is what the National government’s game is all about.

The end result of the government achieving this goal will be exponential growth in the legalized corruption officially sanctioned for Maori tribes.

Opportunities for legalized extortion, danegelding, and bribe-taking will abound – note that these activities will all be perfectly legal – raising the cost of capital and passing that cost onto New Zealand’s consumers as an effective “Maori tax”.

We have already learned over recent days that state-owned Meridian Energy paid money to a West Coast Maori tribe in return for the tribe dropping objections to Meridian building a new hydroelectric dam.

Consumers of Meridian Energy’s products will pay for that transaction in having its cost passed on to them through charges, so for Meridian it is cash neutral while for the tribe it is cash positive.

The Maori tax will thus be levied on Meridian’s customers.

Win-win for the tribe and Meridian, then, and a loss for Meridian’s customers – but why has Meridian’s sole shareholder, the New Zealand government, not objected on behalf of all New Zealand citizens it claims to represent?

Why hasn’t the Minister of State Owned Enterprises ordered an immediate inquiry?

Why hasn’t the Minister of Consumer Affairs felt the same urge?

Links to articles about this vile matter are here:

http://www.stuff.co.nz/business/3563454/Meridian-confirms-paying-iwi-objectors

http://www.nzherald.co.nz/maori/news/article.cfm?c_id=252&objectid=10637889&pnum=0

No country that has increased corruption - whether legalized or not - has ever prospered as a consequence, and so we can forget all about the government’s half-hearted propaganda campaign over closing living standards gaps with Australia if that takes place here.

National should think twice before setting the Parliamentary seal of approval on Maori tribal ticket clipping from the beachfront on out as far as the 12 mile territorial limit.

Oddly enough, many paid-up members of the National Party would not buy into this Maori racial supremacist hijack if they understood it for what it was.

Legalised corruption for Maori tribes is a zero sum game for our economy: a dollar paid to them is a dollar filched from someone else, meaning there is no net productivity gain that closes the gap with Australia, for example.

We will not converge upon Australia, but rather head in the direction of corruption-crippled Third World countries if the government gifts these opportunities for flagrant parasitism to coastal Maori tribes who succeed in claims over the foreshore and seabed.

A couple of other matters are germane.

First, the notion that the foreshore and seabed should be established as public domain and not in any way vested in the Crown smells fishy.

Coastal Maori tribes are intended to be able to go to the High Court or some combination of that court with the Maori Land Court to seek grant of customary rights and titles (both themselves redefined by National in innovative, non-traditional, legally untested ways).

So who would be the defendant with a counterclaim to title to defend if the foreshore and seabed were public domain and not owned by or vested in the Crown?

If no one owns the foreshore and seabed to begin with under the public domain concept, who can mount and successfully defend a counterclaim against Maori claimants?

Has the public been adequately informed as to what this means in terms of the Crown divesting itself of responsibility to defend its title to what it holds on behalf of all New Zealanders?

For Maori, a High Court claim to the foreshore and seabed thus becomes a mere box-ticking exercise.

If they can correctly tick the boxes for the judge, then presto! – they succeed in their claim and legalized foreshore and seabed related corruption can begin apace.

At least High Court proceedings are open to public scrutiny.

The proffered alternative of negotiating directly with the government does not even have that advantage, being secretive and subject to arbitrary actions, non-judicial proceedings, and undemocratic political gerrymander, and not open to appeal through the courts.

Moreover, Maori tribes will be able to arbitrage the two options to get the most advantageous settlement for themselves, regardless of the cost to the public interest.

We should not lose sight of the fact in all of this that Maori tribal interests are always and everywhere private interests and in no wise represent the public interest, notwithstanding all the Stone Age revivalist mumbo jumbo about how their remote and primitive ancestors got here ahead of everyone else.

The government’s proposals for the foreshore and seabed are yet another example of the state privileging some private interests over others simply because the private interests to be privileged are racially distinguished in being Maori.

That is institutionalized racism.

Second, there are some points to pick up from a recent Duncan Garner interview with Attorney-General and Treaty of Waitangi Negotiations Minister Christopher Finlayson. Key phrases have been underlined for emphasis.

First:

DUNCAN: So you'd be willing to sit around the table with iwi in future negotiations as long as you're the Minister and have customary title looked at outside of the courts obviously which is what this process allows, correct?

CHRIS: Oh yes look I – it may seem to be contradictory but what we're trying to do is re-establish that fundamental right of access to justice, which I think most people would agree was a major problem with the 2004 Act. Having said that, I'd be much happier to negotiate with people because I'm a lawyer, I know what litigation costs, I know the time that’s involved and the effort that’s involved, and if things are able to be sorted out through negotiation, I think that’s great.

Should the New Zealand public have any confidence in the secretive backroom political process for granting Maori tribes irrevocable rights and titles over the foreshore and seabed that Mr Finlayson is advocating?

Are politicians really better placed and more appropriate than judges to make these far-reaching awards of rights and titles?

Second:

DUNCAN: There is a bloke in Golden Bay for instance who wants to build a small wharf, I mean doesn’t this effectively allow Maori to stop that person in their tracks unless they can come to some sort of arrangement outside the law where perhaps money changes hands, I mean this is what happens isn't it?

CHRIS: Yeah but your hypothetical's too general. What you're saying is someone wants to build a wharf over an area which is encompassed by customary title. Well if they're wise the best thing they would do is talk to the local iwi or hapu.

DUNCAN: Yeah and if the local iwi say no initially, do you expect that perhaps money could change hands over a period of months or years to see development go ahead, I mean that’s entirely possible isn't it?

CHRIS Well I would imagine in the ordinary course of things there'd be a negotiation.

Here Mr Finlayson gives Mr Garner the slip by avoiding agreeing with his interviewer that Maori will be able to charge people for permission to do things on the foreshore and seabed.

The Maori tax with a vengeance, bur Mr Finlayson obviously doesn’t want to confront that issue.

Third, a deliberate red herring to clear up, as it caught the headlines:

DUNCAN So would it allow for instance an iwi with a customary title say in the Bay of Plenty to do a partnership deal with if you like the Chinese government who come forward with a 100 million dollars and say we want to build a number of resorts on your land, lease it to us over 100 years, would Maori with customary title and iwi be able to get away with that?

CHRIS Oh yes but they'd be subject to the Resource Management Act and subject to the other if you like general pieces of legislation, it's not proposed that this would be a sort of a self governing entity once it was established, so any kind of development would be subject to the usual RMA principles.

DUNCAN Yeah but what you're saying is it's a yes because the Maori have in your report major rights of veto, and if they can go in and do a deal with a foreign government or a foreign entity who has the money to develop, then what you're arguing today is, yes that could happen?

CHRIS Yeah and of course there's the Overseas Investment Commission and those sorts of requirements as well.

Resort hotels are built above the high tide line, so building them on Maori land is no different to building them on anyone else’s coastal private property – that was what Mr Finlayson was driving at with his diversionary answers.

Here Mr Garner missed the point, got sidelined over the foreign ownership issue, and allowed himself to be flimflammed.

What Mr Garner should have been asking about was, but what about the beach and sea below the high tidemark – not to mention the airspace and seabed – situated in front of these resorts?

Overseas, private resort beaches from which the general public is excluded are common, so despite John Key’s assertions, his minister Mr Finlayson is suggesting that Maori-owned exclusive resort beaches are OK.

Link for full text: http://www.nzcpr.com/forum/viewtopic.php?f=7&t=979

To clear up any doubt over Maori being empowered to ban others from beaches and the sea even for superstitious reasons, there is the following proposal from the RFSA itself (p. 38):

Placement of rahui over wahi tapu

This award would allow coastal hapu/iwi to restrict or prohibit access to wahi tapu (eg, burial grounds) and wahi tapu areas (eg, an area of the sea after a drowning), if necessary to protect the wahi tapu.

The Minister of Conservation and the Minister of Maori Affairs would restrict or prohibit access by issuing a Gazette notice.

The Minister of Conservation could also release a public notice of the wahi tapu and wahi tapu area(s).

If the National government’s currently proposed “final solution” for the foreshore and seabed goes ahead, you can bet that New Zealanders who are not members of coastal Maori tribes are being set up for a very raw deal in being swindled of their common birthright and exposed to ever increasing racist legalized corruption

Business beware: Maori sovereignty is landing on a beach near you

A call to arms must be made to New Zealand’s business community concerning the government’s freshly released consultation document “Revisiting the Foreshore and Seabed Act 2004” (RFSA).

The call is twofold.

First, the community must demand an extension to the consultation document’s deadline of 30 April, considering it was only released on the eve of the Easter holiday period.

This cynical ploy by the government left only 20 business days – including a popular extended holiday period - for the community to consider the complex and far-reaching implications of the consultation document and make effective and substantive submissions by deadline.

That is simply unacceptable in a democracy and reflects the National government’s indecent haste to put together some resolution of its pledge to abolish the Foreshore and Seabed Act 2004 before the 2011 general election.

The sponsoring politician, Attorney-General Christopher Finlayson, who happens also to be Minister for Treaty of Waitangi Negotiations and thus is in a conflicted position, states in the RFSA that he wants to put final proposals to cabinet for decision in late May and June of this year, which is far too soon for business interests to come to grips with what the RFSA means to them in detail.

A lot of businesses actually have a stake in the outcome of the RFSA consultation process, being mentioned in passing in the document as including, “fishing, marine farming, marine transport, roading, and airport infrastructure, mining and tourism industries, and companies which have a significant interest in how the coastal marine area is controlled and regulated” (p. 19).

The second call is for the business community to make submissions on the RFSA.

A great deal is at stake as the RFSA describes the foreshore and seabed as being “the area between the line of mean high water springs on its landward side and the outer limits of the territorial sea (12 nautical miles) on its seaward side, [including] the air space and water space above the land, and the subsoil, bedrock and other matters below [and] the beds of rivers that are part of the coastal marine area” (p. 49).

Few of these physical constituents of the foreshore and seabed could be considered objects of bona fide traditional Maori concepts or customary uses, but they represent a jackpot for coastal Maori tribes if they can control access by business interests to them.

The RFSA is offering a license for successful claimant coastal Maori tribes to pursue “commercial benefit” (p. 37) in rent-seeking, veto-wielding, and royalty tithing.

Business interests in the foreshore and seabed will find themselves subject to Maori tribal obstruction and legalized corruption and extortion if the RFSA’s proposals go ahead.

The costs and risks of doing business in relation to the foreshore and seabed will increase, affecting the efficiency of capital investment and productivity of industry, the general standard of living in our society, and the likelihood we will ever catch up with Australia at social and economic levels.

The RFSA gives the lie to the claims of National to be a business-friendly political party.

The RFSA is hopelessly flawed in many ways, cunningly manipulative to the government’s ends, and clearly calculated to streamline the submission process in favour of the government’s preferred solution and timeframe.

There are three basic levels of the document to get clear:

1) Who will have title and other control claims to the foreshore and seabed

2) How coastal Maori tribes will be awarded such title and control

3) What exactly such coastal Maori tribal title and control awards will mean in practice

The government is pushing for “public domain” status for the foreshore and seabed, meaning that no one will be able to own it outright in fee simple.

To get to this conclusion, the government has rejected permanent Crown ownership, permanent Maori ownership, and provisional Crown ownership subject to successful rival claims.

Bizarrely, the government has both praised and bypassed a logical alternative as already exists in New Zealand law:

“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).

So what is wrong with the Act’s solution that cannot be logically extended to include the foreshore and seabed under the same terms and conditions?

Why should the Crown surrender what it has the absolute Parliamentary sovereignty to acquire and possess on behalf of all New Zealanders and already owns?

Should the Crown surrender so large and valuable an estate simply to attempt to gratify the political and material demands of a disgruntled minority in society as constituted by coastal Maori tribes?

So far as coastal Maori tribes laying claims to the foreshore and seabed is concerned, the RFSA proposes the High Court, the Maori Land Court, or some combination of the two, or direct negotiations with the Crown that are ratified by the High Court.

Questionable in this process is whether other interested parties who are not coastal Maori tribes can either join these court proceedings or have involvement in the negotiations or input into the ratification.

Up until now, public and business interests have largely been excluded from the “Treaty partnership” backroom deals reached between the Crown and Maori tribes and left to cope with the subsequent and often racially discriminatory results of a fait accompli.

This is not good democracy in action.

Particularly disturbing in the RFSA is that it has loosened the test for claims by coastal Maori tribes to mere contingent interest and proposes allowing such tribes to make joint claims.

On top of that, the RFSA suggests that the Crown should line up alongside claimant tribes to help them prove their case, which raises the question as to who will be responsible for testing and opposing those claims on behalf of other legitimate interests.

The Crown should not be so partisan in its dealings with New Zealand citizens and business interests as if they were second class because not part of the supposedly sacred and democratically corrupting “Treaty partnership” the RFSA harps on about.

What is suggested in this unholy alliance between the Crown and claimant tribes is nothing short of a betrayal of the Crown’s obligations to all New Zealanders as the legally equal citizens it is meant to be the dutiful, diligent and impartial steward for.

To suit its own electoral purposes in 2011, National in its present guise as the Crown is prepared to sell down the river New Zealand’s businesses and citizens who are not its Treaty partners.

We then have to consider the “awards” proposed in the RFSA, given that it is presupposed in the document that they will not be title in fee simple.

These awards fall into two camps.

First, there is the innovation of non-territorial customary uses, activities and practices.

Second, there is the novel, non-fee simple territorial customary interests, passed off under the branding of customary title.

So far as non-territorial interests go, the proposal is that claims to these should be tested against common law – which at least is a matter of written record – and the largely oral tradition of tikanga Maori – which these days is all too often a matter of pliable fiction constructed as a means used to justify an end.

Speaking of fictions, the foundation of dishonesty behind the whole RFSA is betrayed in the blatant lie that states, “The traditional practices and customs of Maori are enduring. They pre-date the Crown. Therefore, it is important that tikanga Maori be used in any test” (p. 33).

Sorry, grasping Stone Age revivalists and your mendacious historical revisionist fifth column, but the Crown in its original form as the English Crown and the body of law long behind it – the very same that have evolved into New Zealand’s Crown, absolute Parliamentary sovereignty, and civilized rule of law - greatly predated Maori ancestors who washed up on our shores from the mid 14^th century AD onwards.

Since the RFSA can’t even get its historical facts straight, it should perhaps be treated with the utter contempt it deserves as a propaganda tool, but for the fact that it represents a key instrument in implementation of the great foreshore and seabed swindle National proposes for its own expedient ends.

Business submitters on the RFSA should be aware of the Trojan horse represented by non-territorial customary rights as rent-seeking and veto-wielding rorts, but the greatest potential evil rests with territorial customary rights.

Where coastal Maori tribal territorial interests are concerned, things get even more hairy for business.

National doesn’t want to grant fee simple title, so overeggs the pudding with other compensatory powers.

Customary tribal activities would be protected under the Resource Management Act and access bans to alleged burial sites and places where a recent drowning had occurred permitted.

Coastal Maori tribes would be empowered as unelected bodies to write their own self-interested planning documents (as they would also for non-territorial customary rights) that would be compulsorily included in elected local authority regional policy and planning.

Bound by these Maori plans would be not only local authorities but also the New Zealand Historic Places Trust, the Department of Conservation, and the Ministry of Fisheries.

Included would be a right to permit activities – the veto-wielding power that underpins legalized extortion in rent-seeking – without legal recourse to challenge denial of permission.

Local authorities, the Minister of Conservation, the Director-General of Conservation, and requests for foreshore and seabed use or development consents by business interests could be vetoed or simply consigned to limbo by coastal Maori with customary title without any legal redress proposed in the RFSA.

Indeed, coastal Maori tribes endowed with customary title will be allowed to make things up as they go along:

“When giving, or refusing to give, consent there would be no obligation on the coastal hapu/iwi to make a decision based on criteria or restrictions set out in the relevant legislation.”

“As with the ‘right to permit activities’ award, the decision of the coastal hapu/iwi to give or refuse consent could be made according to a Maori world view, on grounds which are not covered by the relevant legislation” (p. 41).

New Zealand’s businesses can hardly be expected to derive much benefit from National setting up a regime of unelected, unaccountable coastal Maori tribal sovereignty – for this is what the RFSA’s customary title really proposes.

Legal models for what the RFSA proposes are thin on the ground: it can only come up with the Te Ture Whenua Maori Act 1993 and Canadian common law.

The latter is the dog in the manger insofar as Canada has bought heavily into the whole First Nations rubbish promoted by the United Nations and generously thrown billions at its Indian and Inuit indigenous peoples plus granting them customary title, rent-seeking and veto-wielding powers, and royalties collected without effort from natural resources.

The Maori elements pushing for similar parasitic benefits in New Zealand relating to the foreshore and seabed cherish the United Nations policy and the concession made to them in the RFSA is betrayed where it quotes United Nations vocational agitators damning the Foreshore and Seabed Act 2004 at the self-serving instigation of these same Maori (p. 15).

But why Canada – why not somewhere closer to home like Australia that has also gone down the path of First Nation appeasement policies?

Principally, one imagines, because Canada is far away and thus easy to form romantic notions about despite the fact its Indians and Inuit, armed with all their customary titles, powers, and tithing revenues derived therefrom, are disintegrating on their tribal lands beneath a welter of self-inflicted drug, alcohol, physical, psychological, sexual and child abuses mainly caused by lacking their own work ethic, personal accountability and communal responsibility.

Australia is too easy to get across to and witness the same thing with aborigines and Torres Strait Islanders, so we can’t talk about the merits of customary rights and title solutions applied in the Lucky Country as a model for New Zealand, now can we?

The RFSA represents a politically correct experiment and Maori appeasement policy of huge contingent risk to business in New Zealand.

To reiterate: businesses should submit on the RFSA but also demand a significant extension of the deadline for submissions so that they can participate meaningfully and substantially in a process that puts their interests on the line.

Better still, they should demand that National should include the RFSA in its party manifesto for the 2011 general election so everyone can vote on it.

On the Web: The RFSA at www.justice.govt.nz/policy-and-consultation/reviewing-the-foreshore-and-seabed-act-2004/