The following are extracts from a series of articles provided to the NZCPR in 2010 by Canterbury University Law Lecturer David Round in response to the proposed Marine and Coastal Area Act.
‘Customary title’ means title which Maori had in 1840 and which has never yet been investigated by the Maori Land Court. (Once the Maori Land Court has investigated it, it turns it into ‘Maori freehold title’.) The 1963 Ninety Mile Beach case, of course, held that the Maori Land Court had long lost the jurisdiction to investigate such title. But as well as that, the general understanding among everyone, even the Court of Appeal in 2003, was that customary title, if it still existed at all, would be found to exist only in a very few places. Customary title was considered by everyone to be very rare…
The proposal is to introduce new tests as to what customary interests are. The definitions and tests proposed for these interests will be much more liberal than they are now or have been in the past. We can therefore be certain that customary title will be found in future when, in the past, it would not have been. The law will be altered, so there will be a lot more customary title around. It will be popping up all over the place, you wait and see…
The proposal is that these customary interests would not affect public access, fishing, navigation, and existing use rights until the end of their term. But the holders of customary rights would be able to have input into such things as the allocation of space in the foreshore and seabed, and how coastal permits are granted. Local authorities would have to take the planning documents of coastal iwi and hapu into account when planning under the Resource Management Act. The Historic Places Trust, Department of Conservation and Ministry of Fisheries would have to take them into account….
It is easy to imagine that such a simple thing as the renewal of a whitebait stand (which requires a coastal permit under the RMA) could become involved in racial politics. If Maori have a customary interest, might they not insist that they should own all whitebait stands? One can imagine a hundred situations like this. So any Maori with customary title will essentially have a right of veto over innumerable things which might take place on the foreshore and seabed…
They ‘would not be obliged to comply with the requirements of the RMA when giving or declining permission for a coastal permit’; they ‘would have the right to…refuse to give…consent to conservation proposals and applications…’ They might well decide that in future they, with their customary rights, will be the sole users of the foreshore and seabed. And even if they decide to let other people use the foreshore and seabed, there will, of course, be nothing to stop iwi from accepting a koha ~ a financial inducement ~ in helping them to reach a decision on the matter.
You will have heard that Meridian Energy has donated money to a West coast iwi which, after initially opposing the proposed Mokihinui dam, changed its mind in the course of the hearing, and now supports the scheme. This is by no means the first case where financial sweeteners have assisted Maori decision-making. Even blunter expressions than ‘financial inducement’ and ‘sweetener’ may spring to your mind. But this is the future being made possible by the present government. Developments may well continue on the foreshore and seabed ~ marine farming is quite profitable, I believe ~ but another opportunity will be given to the new landlord/rentier/parasite class to clip the ticket on each proposal.
And do not think for a second that this will be the end of it. If this proposal goes through it will just be an opportunity for further claims. Most of the coastline will have customary interests claims made over them. Planning documents will proliferate… Suffice it to say the government’s foreshore and seabed proposal, will mark the doom of New Zealand.
This new law will be the most indescribable gift to Maori of an enormous part of the remaining public property and public wealth of this country. It will deprive the rest of us of any possibility of enjoying the immense economic opportunities which the foreshore and seabed affords and which, heaven knows, we so desperately need…
This new customary title is going to be granted if it can be established according to ‘Maori tikanga’. Now this tikanga is known to Maori alone. They have it ~ or say they have it. They do not give us any details. If they do not have it, they invent it. We will never know. The introduction of tikanga alone is the handing-over of a blank cheque. You can bet your bottom dollar that a surprising amount of the coastline will be considered by Maori ‘to be ours now, really. I mean, we let people go there, and we don’t stop them or say anything to them, but we always feel, you know, it’s our beach, that’s just our tikanga’ ~ and he’ll keep a straight face, and the whole thing will be in the bag. In response to questions, both the Prime Minister and the Attorney-General are already refusing to say categorically that even popular Auckland beaches will not have customary title awarded over them.
And what we are giving to Maori here is the foreshore and seabed, the coastline of our wonderful country, the place where we have had some of the happiest moments of our lives, the place, surely, if there is any place, where we can all meet as equals, the place that defines so much of our understanding of ‘what it means to be a New Zealander’, to use a hackneyed but true phrase. The beach is part of us, in a way even that the bush is not.
Over an enormous part of the coastline of our wonderful country, perhaps all of it, the way will be laid open for Maori ownership, and bit by bit, in little nibbles or big bites, it will happen. Maori will obtain ownership rights ~ ‘customary title’ is a form of ownership ~ and even if they do not theoretically own some things ~ the trillion dollars’ worth of ironsands, for example ~ they will still have immense influence on any proposal for anything. Undersea cables, marine farms, tidal power, airspace, all sorts of minerals… Customary owners will have a veto on all Resource Management Act proposals for or near their coastline. Boat ramps, whitebait stands, jetties, anything…
And if, somehow, Maori do not get something this time round they’ll just keep working on it, like the sea nibbling away at the shore. Be certain of this too, that even this will not be the end of the foreshore and seabed giveaway.
We can put money on it that universal recognition will turn out, a few years down the track, to be rather fuller than it was originally understood to be. (How surprising!) It will turn out that although we may have thought that universal recognition was allegedly just a formal recognition of pre-1840 ownership, it does give iwi certain rights… The foreshore and seabed deal, if properly handled, will guarantee tribal elites a long-term future clipping the ticket on everything that goes on, and will keep them in the luxury to which they are rapidly becoming accustomed.
But even that aside ~ I know I have said this before but think, for heaven’s sake think about the last twenty-five years. Think about human nature, and think about politics and Maori in this country. Has the decency and incredible generosity of New Zealanders been met ever with any gratitude, let alone any sense that now that a bit of unpleasantness about Treaty claims is over we can all get on with life? Have we heard any claimants actually say ‘Thank you’? I have not. But I have already heard quite a few Maori saying that any Treaty settlement can only be for one generation. Binding future generations is ‘not the Maori way’. (In that case, how are we bound by a treaty signed in 1840?) Claimants will be back sooner or later for another attempt to obtain a remedy for the alleged festering sore of centuries old injustices… The promises we have been fed in the past, by both Maori and politicians, that after a few years settling Treaty grievances we could all put the past behind us and move forward together as New Zealanders ~ these promises were clearly lies, and the people who made them were liars.
Just a couple of final points. One is to marvel at the effrontery, the sheer naked insolence, of those who favour handing the foreshore and seabed over to one race, and yet who call those of us who believe that it should remain the property of us all ‘racist’. Can you understand this? It is amazing, isn’t it? We are unkind about lawyers, from time to time, their supposed habit of twisting words and proving that black is white and white black… lawyers have nothing on these people. To be honest, I think the explanation often is not so much effrontery as plain stupidity; aided, of course, by large dollops of smug self-satisfaction. They are, most of them, strangers to genuine thought, most certainly strangers to common sense.
Finally, I remember Napoleon’s cynical words ~ ‘It is worse than a crime ~ it is a blunder’. Even from the narrowest perspective of self-interest, I cannot see that this deal is going to do the National Party the slightest bit of good. Does the Maori party strike you as a party of honourable men and women who will show proper gratitude and respect for everything National has done for them? Pull the other one. They have but one principle, they have told us already, the advancement of the interests of their own race, and to hell with the rest of us.
David Round’s full articles can be read here: nzcpr.com/riding-roughshod-over-our-right-to-the-seabed-and-foreshore and here: www.nzcpr.com/a-crime-against-the-public