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Dr Muriel Newman

One battle ends, a new one begins

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In spite of the dedication and hard work of tens of thousands of New Zealanders – and the support of hundreds of thousands – sadly, we have been unable to gather enough signatures to trigger a nation-wide referendum on restoring Crown ownership of the foreshore and seabed.  Although petition forms are still flooding in, we estimate that we will end up more than 50,000 short of the base target of 307,000 signatures of enrolled voters. We have advised Parliament accordingly, and as a result, the petition will officially lapse on the closing date of 14 July. Unfortunately this is the fate of 90 percent of the Citizens Initiated Referenda (CIR) that have been lodged since the legislation was first passed in 1993.

New Zealand is one of only four countries in the world that allow CIR. In the other three countries – Switzerland, the USA and Italy – they are binding on the government. The fact that in New Zealand, CIR are not binding, is the main reason why so many miss their target. “What’s the point” we were often told, when the government simply ignores them – the most recent case being the CIR to repeal the smacking law.

While the merit of CIR being binding is certainly worth questioning and challenging, the present process does give the public an ‘official’ opportunity to take a stand and hold the government to account. That is certainly what the supporters of our CIR have been doing over the last year – challenging the government’s appalling decision to repeal public ownership of our coastline in favour of fabricated tribal claims. The fact that hundreds of thousands of New Zealanders were bold enough and concerned enough to put their name to this petition should serve as a warning to the government that law-making to appease a racial minority is an anathema to a progressive democracy. New Zealand citizens have a right to live in a country free from racial discrimination and racial preference and it is the duty of our government to deliver that.  

CIR are run under an Act of Parliament that sets down a number of strict controls on the process. The signature threshold is high – 10 percent of the number of enrolled voters at the time a petition is submitted. In our case, with 3,066,007 voters enrolled for the 2011 general election, our target was around 307,000 signatures. However, we were advised that on top of that we would need to collect 10,000 to 20,000 additional signatures in order to replace those that would inevitably be found to be duplicates, illegible, or ineligible.

The promotional budget for a CIR is also highly regulated – a spending cap of $50,000 including GST is in place to cover all paid advertising. This threshold has not been updated since 1993, when the law was first introduced.

Without a number of other organisations pro-actively promoting our petition, our task was always going to be difficult. In comparison, Grey Power’s new CIR against asset sales has the official support of five other organisations – the Labour Party, the Green Party, Greenpeace, the Council of Trade Unions, and the Union of Student Associations. Any organisation or individual supporting a CIR can spend up to $50,000 promoting it, as long as they all act independently. That means the asset sale CIR could theoretically have more than $250,000 spent on promotion. 

In addition, the timing of their CIR is more fortuitous than ours – they don’t have the Rugby World Cup and the election to compete with!

There is another factor that made our job just so much harder than it should have been, and that is the fact that the public were largely unaware that the foreshore and seabed had been removed from public ownership, and was now being claimed by tribal corporations. Certainly that awareness is now greater than it was prior to launching the petition, but it is worrying to see how easily the public can be deceived and manipulated by the machinery of politics.

From the outset the government was desperate to keep this issue under the radar of public opinion. They began the process by launching a Maori-only review of the 2004 Foreshore and Seabed Act with a rigged panel that would guarantee the outcome they wanted: a report that could be used to justify the repeal of Crown ownership of the foreshore and seabed in favour of a new law encompassing the brand new right of customary title to the coastal marine area.

And, when a follow- up public review was launched, the government instigated a highly contentious proposal to mine sensitive conservation land at the same time knowing that it would generate such massive protest action and media interest, that it would completely overwhelm the foreshore and seabed review.

To allay public anxiety, the Prime Minister reassured the public that a law change would only go ahead if there was widespread public support. As a result, the Attorney General purposely delayed the release of the findings of that nation-wide review – which showed 91 percent of the public were opposed to a law change – until his new Bill was in front of Parliament and the legislative process was well underway. The Bill was then rushed through the Select Committee process, sending it back to the House before the Committee could obtain independent legal advice or make the changes recommended by submitters.

Dr Hugh Barr,  the co-promoter of the CIR,  intends to keep a watchful eye on foreshore and seabed claims where he can, with a view to investigating the voracity of the ‘evidence’ of continuous use and occupation since 1840, that is supposed to underpin all claims. In his article Our Foreshore and Seabed – precious enough to fight for, Dr Barr explains:

“Though our Citizens Initiated Referendum has failed narrowly to get to its target, the Coastal Coalition will continue to campaign strongly against National’s Marine and Coastal Area 2011 Act. I ask that all Coastal Coalition members stay in touch, and help us with this fight. Already the coastal tribes’ gold-rush has started. Twenty five claims for Customary Marine Title and/or the lesser right of Protected Customary Rights have been lodged for 22 stretches of coast – including some for whitebait rights, which should be illegal under theAct.

“There are two different legislative paths that claims can follow. One is via the High Court, called an application for a recognition order. The applicant is required to advertise, and any interested party can register under Sections 103 and 104 of the Act, and become a party to proceedings. There are currently twelve claims on this path, of which only one has been advertised so far – for an area southwest of Stewart Island. I have registered as an interested party for this case.

“The second path is the controversial “by agreement” path, where secret negotiations are held with the Treaty Minister Christopher Finlayson. Under this path all other interested parties are locked out of the discussions. To date there are thirteen known applications. Nine of these are listed on the Ministry of Justice website. Other claims may be proceeding in secret.

“It is essential that independent groups are present as interested parties at any Court hearings.  Crown lawyers may not be instructed to adequately satisfy the Marine and Coastal Area Act’s requirements. In my appearances at Waitangi Tribunal hearings in the 1990s, Crown lawyers asked me questions that showed they were on the side of the claimants, and  not there to defend the public interest.” 

Unfortunately, giving control of our coastline and the right to claim title to the iwi elite has simply encouraged them to want more. “More” not only includes water rights, but the very thing that unites us as New Zealanders – our Constitution.

Plans are now well advanced for the replacement of New Zealand’s present constitution with a new version that enshrines the Treaty of Waitangi and the Maori seats. The strategy being used by the government is similar to that successfully employed over the foreshore and seabed: they have set up a review process using a rigged panel. They plan to consult extensively with Maori through a series of hui. Other ‘arranged’ meetings will take place over the next twelve months. But high profile open public meetings, that could generate controversial publicity of the sort the government does not want, will not be held, as they plan to keep this review under the radar of public opinion as well.

As a result of this carefully controlled process, a report will be prepared for the government by the Review Panel which is likely to recommend a change to our constitutional arrangement in favour of a new written constitution, embracing the principles of the Treaty of Waitangi and enshrining the Maori seats. The government has reserved the right to pass their proposed changes into law through the agreement of vested interest Parliamentary parties. They do not need to hold a binding public referendum to pass a new constitution into law, even though this is the normally the way that governments deal with major constitutional change.

The point is that our constitution is working well and does not need to be changed. Contrary to what the activists are saying, New Zealand does have a written constitution – it is not found in one document, but is made up of a flexible arrangement of statutes and conventions, like that of the UK upon which our legal framework is based. As things stand, Parliament with its elected MPs is New Zealand’s supreme law maker. If the Maori Party is successful in orchestrating a new written Treaty-based constitution, unelected activist judges are likely to be in control. That means that if the National Party rolls over – as it did over the foreshore and seabed – to let the Maori Party hijack our constitution, New Zealand will be condemned to a future of racial division that will forever confer superior rights and status on those who claim Maori heritage, while non-Maori New Zealanders will become second class citizens in their own country.

Fresh from our experience with the CIR, we now understand that thanks to MMP politics, it will take a massive effort from the public to prevent the Maori Party from exerting influence far beyond their representation. Public action is our only safeguard, and there is no time to lose. If you haven’t already signed our petition to oppose a Treaty-based constitution and be kept informed, please do so on the www.ConstitutionalReview.org website. But in addition, please start letting your friends and acquaintances know what’s going on. If we do nothing we will continue to be manipulated by agenda-driven minorities.

Thanks again for all of your hard work, support and commitment to our CIR – while we did not win that battle, it has made us realise just how much stronger we will need to be to win the constitutional war that lies ahead!