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David Round

Riding Roughshod Over Our Right to the Seabed and Foreshore

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Ah, the foreshore and seabed. Are we not thoroughly sick of it by now? And yet we will all have to ‘provide feedback’ on the government’s consultation document. The Attorney-General, Chris Finlayson, says that he is ‘very interested in hearing New Zealanders’ views. They matter.’ And seriously, it is really important that we do provide feedback.

But actually, I do not believe for a second that Chris is very interested in hearing our views. Anyone with half a brain in his head would know perfectly well what the views of New Zealanders are on this matter. Has Chris been living on another planet for the last few years? Chris is very well aware of what our views are. It is important that we shout them into his rather hard of hearing ear, just so he cannot pretend not to have heard them. But he does not want to hear them. What he wants to do is to stitch up a deal with a small racist party in Parliament whose votes can be helpful to his own party, and the views of New Zealanders are going to be an irritating obstruction to his hopes for a smooth passage of another pernicious and foolish law, another step in the promotion of racism, division and disintegration. So please shout loudly.

I must admit that I did not feel quite so gloomy a few days ago, when the word was being spread about that the new law really was just going to be the present Foreshore and Seabed Act 2004 repackaged. The present law, as I shall explain, is not all that bad, and so I thought to myself that if it is just going to be served up to us again in different form I might well be able to live with that. I am not sure who was responsible for this rumour. Was it the government itself, perhaps, playing a cunning double game and softening us up? Who can say? What this document proposes, however, is not the same thing repackaged at all, but something much worse.

Chris makes a manful little effort to convince us that the present arrangement, the 2004 Act, is bad. He offers three items of evidence.

One is that ‘a significant number‘ of New Zealanders do not support it, as shown, he claims, by the 94% of almost 4,000 submissions made to the select committee in opposition to the bill. Well yes, there were a lot, weren’t there? (Although not as many submissions as there were votes on a certain recent citizens initiated referendum on the subject of smacking. There would not be a little hint of hypocrisy here would there Chris?) But most of the almost 4,000 submissions were based on the completely incorrect assumption that the Court of Appeal, in its 2003 Ngati Apa decision, had said that the foreshore and seabed belonged to Maori, and that the 2004 Act was going to rob Maori of their own property. It was yet another land-grab by the wicked white man. Now the Court of Appeal, for all that its decision was a disgraceful political adventure, still did not say that. The court leaped in boots and all and overturned long-established law, in defiance of its own rule that it should do so only after careful consideration and in carefully defined circumstances, and ignoring the wise old rule that controversial matters of public policy should be avoided, not deliberately adopted, by unelected judicial officials. But even so, all the decision said was that Maori could now go to the Maori Land Court to claim title to foreshore and seabed, and in the Maori Land Court they might, or might not, be successful. Needless to say, this decision was at once misunderstood, sincerely or deliberately, and was presented as a decision that Maori own the foreshore and seabed.

The judges were fools if they did not foresee that this would be the Maori response; after all, as we know, and as surely the judges must have known, the big 1987 decision was also widely misinterpreted and misrepresented. But the point is that a great deal of the opposition to the present Act was based on a complete misunderstanding of what it did. It did not steal the foreshore and seabed from Maori. What it did, essentially, was to take some steps towards restoring the status quo which had long existed, since the 1963 Ninety Mile Beach case and actually long before, and which had been jettisoned by our Chief Justice and her friends. The 2004 Act also allowed for the recognition of ‘territorial customary rights’ and ‘customary rights’, and in fact gave Maori, all in all, more than they would have been entitled to had the 2003 Court of Appeal decision been allowed to stand.

The present consultation document, by the way, is careful not to mention the Ninety Mile Beach case, an omission which to my mind must count as dishonesty. All it says, on page 11, is that before the 2003 Ngati Apa decision the Crown ’had assumed’ it owned all foreshore and seabed. No suggestion that there might be long-established judicial decision by respected judges (ah, those were the days!) to that effect. But Chris is the Attorney-General. He’s heard of the Ninety Mile Beach case, surely. Why do you think he was so careful not to mention it?

So ~ opposition to the present law is based largely on ignorance; and indeed the present law ~ which was a return to something like the Ninety Mile Beach status quo ~ now seems generally acceptable. Ngati Porou have accepted it to the point of reaching agreement with the Crown on management arrangements under the Act. No complaints there. Quite possible other iwi would be happy to enter into similar arrangements; if they do not do so now, the reason might well be that they think they will get an even better deal under Chris’s proposed new arrangements. I wonder if Chris has thought of that possibility.

Chris has two other bombshells to amaze us with, however. One is that ‘international commentators’ have criticised the act. Who are they? Why, they’re from the United Nations. Now pardon me while I fall about laughing. Would this be the same United Nations whose sundry human rights bodies, until recently anyway, included such leading proponents of the rights of man as Libya, Iran, and Saddam Hussein’s Iraq? The United Nations whose soldiers, at times anyway, did nothing to stop genocidal massacre in Rwanda, and who have sex with children in the Congo and Darfur? Whose senior officials were in a fraudulent oil racket? Which is so concerned about human rights that (according to Mark Steyn) there is only one example in recent years of a senior U.N. figure having the guts to call a member state a ‘totalitarian regime’, and that was Boutros Boutros-Ghali talking about the United States?

At its best, which is not saying much, the United Nations is a giant gravy train and talk-fest, and a useless hand-wringing ditherer where just about anything needs to be done anywhere. And because this intellectually bankrupt organisation’s Committee on the Elimination of Racial Discrimination (China is among its members. No discrimination there) and a special Swedish rapporteur who, as I recall, spent only a couple of days in New Zealand and listened to no-one but the usual malcontents ~ because these two ‘commentators’ urge reconsideration of the 2004 Act we must leap to obey. I think that these commentators could profitably divert their attention to many other countries around the world. But of course those present too many challenges, and so it is far easier to pick on a small decent law-abiding nation like New Zealand. Ignore the real criminals, pick on the little guys. Rather like our own police force from time to time…but I digress.

Chris and his ponderous advisors are at least a generation behind the times if they think that anyone in the real world takes the United Nations seriously these days. Chris should be a little less impressed by the views of the United Nations and a little more impressed by the views of New Zealanders. We are in charge here, or would like to be, not international commentators. Stuff the international commentators. And stuff the politicians who think that international commentators should be entitled to shape the laws of this country.

Chris’s third item of information and knock-out blow is that an Independent Ministerial Review Panel recommended the 2004 Act’s repeal and replacement. Note the word ‘Independent’, a lovely touch. This ‘independent’ panel was of course set up to satisfy the Maori Party, which had already decided that it did not like the Act, and so it was absolutely necessary that the ‘independent’ panel come to the same conclusion. And the membership of the ‘independent’ panel was designed to do just that.

These ‘independent‘ members were Eddie Durie, long time Maori Land Court judge and chair of the Waitangi Tribunal ~ also, briefly, a High Court judge, but he did not stay there long, for some reason ~ Hana O’Regan, daughter of Sir Tipene, member of the Maori Language Commission and head of Maori at Christchurch Polytech ~ and Richard Boast, professor of law at Victoria University. I do not question their sincerity, needless to say, but from Miss O’Regan and Eddie, in particular, one can expect only one result. For Chris to suggest that this panel was in any meaningful sense ‘independent’, able to approach the subject with a completely open mind and ready to give fair and equal consideration to all points of view, is laughable. Chris obviously considers us to be fools. Thanks Chris. Point taken.

So ~ what does the government’s Consultation Document propose? It gives ‘assurances’, of course ~ promises, promises ~ and considers four options (pp 23 and 24) These are Crown notional title (a title able to be defeated by a customary title established before the courts), Crown absolute title, Maori absolute title and (the government’s preferred option) ‘[a] new approach ~ public domain akiwa iwi whanau’. The foreshore and seabed would actually be named ‘public domain akiwa iwi whanau’. This label is said to ‘express the essence’ of the new approach.

Yes indeed. Let us ponder the essence of the new approach. Let us ponder these Maori words, in particular. What do they mean? A reasonable question, surely. Words have meanings. If the foreshore and seabed is hereafter in law to be called ‘takiwa iwi whanau’, a phrase which does after all express the essence of the approach, then the meaning of those words will have an effect on the interpretation the courts give this arrangement and what it actually means in practice. Yet nowhere in the consultation document, neither in the glossary nor in the dictionary ‘kupu Maori’ section, does any description or definition of these words appear. So what do they mean?

Well, I don’t know, and anyone who might know, if there should be such a person, is not saying. It is utterly unsatisfactory that we turn the foreshore and seabed into a concept which is undefined and unknown. What will happen, we can be quite sure, is that a wee while down the track some Maori claimant will be arguing that ‘takiwa iwi whanau’ actually means that Maori have some special extra rights we don’t realise right now. Undefined words are a blank cheque for whoever interprets them ~ and Maori words will, of course, be interpreted by Maori. Look no further than all the trouble we have had with kawanatanga, te tino rangatiratanga and taonga. They have proved to be infinitely elastic in meaning and application.

It is bad enough that the English words ‘public domain’ are used, for that concept is really unknown to our law, and could contain some unpleasant surprises further down the track; but to use Maori words is an invitation to disaster, and the lack of even an attempt at definition surely suggests that definition is (at this stage!) not possible. What do we think of a consultation document which ‘expresses the essence’ of its approach in a Maori phrase which is untranslated into the other official language of this country, which is undefined and, I suspect, just invented? It could mean anything, and probably will. This is a pig in a poke. Buyer beware.

To continue ~ the proposal is to repeal the 2004 Act ~ remove Crown ownership, and declare that no-one owns or may own the foreshore and seabed (except for areas already owned) ~ provide for public access ~ and provide for the continued operation of other existing property rights (e.g. fishing quota) . The public domain akiwa iwi whanau question aside, these are in principle fine things. But the devil is in the detail, of course, and the next matter, the question of customary interests, should make us very concerned.

I shall summarise. The proposal is that uninvestigated customary title ~ that is to say, a customary title which existed before the 2004 Act, which could (after the 2003 decision, but not before it, be investigated by the Maori Land Court), and which was extinguished by the 2004 Act ~ the proposal is that that customary title be restored, and be made able to be investigated.

‘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.

But the government’s proposal means that it will be rare no longer. The proposal is, in fact, to introduce new tests as to what customary interests are. (These ‘customary interests’ are of two types, territorial interests or ‘customary title’, as described in my last paragraph, and ‘non-territorial interests’ which involve longstanding use of the foreshore and seabed without actual ownership. Confused yet? Perhaps you’d better not get involved after all. Just leave it to Chris…) (Of course, any long-standing use of the foreshore and seabed has by definition been occurring for a long time already, so what, we might ask, is the problem?) Several pages of the document, pages 32 to 37, deal with these tests, and I shall not repeat them. But I make two vital points. One is that 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, in fact, so there will be a lot more customary title around. It will be popping up all over the place, you wait and see. Then, as if the first point were not bad enough, the other point is that it is also proposed that Maori will not even have to go to court to obtain recognition of these customary interests. They could go to court if they wanted to ~ but Maori will also be able to obtain recognition of their customary interests by negotiating directly with the Crown.

The document observes that such direct negotiation ‘reflects the Treaty partnership’ ~ you remember, the non-existent partnership ~ and ‘respects the mana of the negotiating group and recognises the ability of the government to address their issues, rather than relying on the courts to set the rules and outcomes. It also allows for solutions to be tailored to meet the issues facing the negotiating group…’ So rather than going to court, and having to fulfil even the new relaxed tests required there, Maori may negotiate directly with the Crown and be given whatever they want without even that degree of scrutiny. There will, in fact, be an entirely new enormous round of claims, as all over the country iwi decide to have another bite at the cherry and claim yet more racial privileges and special treatment, disguised as ‘legal entitlement’. The Cabinet will still have to sign agreements off ~ big deal ~ and there will have to be legislation ~ but I cannot see us having much influence at any stage in those proceedings. The Crown’s readiness to hand over public resources has already been made very clear. And now our government is preparing, once more, to sell us down the river.

Righto, 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 next thing to be very alarmed about ~ note carefully that these customary interests would be able to affect other things. You may read about these on pages 38 to 41. 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. On page 40 we read that ‘the coastal iwi/hapu would have the right to decide whether an activity requiring a coastal permit could be progressed by the consent authority’. 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 foreshore and seabed in future. 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 just in the last couple of days 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 menas 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. Thanks Chris. 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. Before very long things will get so complicated that new legislation will be required, which will give Maori just a bit more. And then more, and more…

No-one cares about us, gentle readers. Our politicians do not care. Even the high-minded Greens, usually so concerned about the rights of the people, have revealed themselves on this matter to be concerned only about further privileges for brown people. Politically correct judges do not care. (Our chief justice, who as we know believes herself entitled to overrule acts of Parliament in the name of the Treaty, is, with her millionaire husband Hugh Fletcher, the co-owner of a South Island high country station, where several years ago hundreds of acres of matagouri were illegally sprayed without a resource consent, including over a hundred acres that did not even belong to the station but belonged to us, being in the conservation estate. No prosecution ensued. Rumour also has it that some of the fences recently erected on the station impinge on public land. The public interest does not seem to feature much in Her Honour’s calculations.).

The United Nations certainly does not care about us. If you’re an ordinary white person, you’re on your own. Brown and black racism is in the ascendant. If Chris isn’t careful, we white people might have to get together, although I’m sure there’s a United Nations declaration somewhere forbidding that.

But actually, I would like to see an end of racism. I would also like to see in our politicians a readiness to respect the views of the people who elected them, the people who are disgusted by politicians’ readiness to betray them. Apart from a brief moment after the 2003 Court of Appeal decision, it has been long established New Zealand law, in fact since well before the Ninety Mile Beach case, that the Crown owns the foreshore and seabed and that is that. A sandy foreshore is surely the ideal place to draw a line in the sand and say ~ no more of this nonsense. We are all New Zealanders. Stop giving more racial privileges. Enough of this incremental creep. It would be nice if this precious part of our land were to be made once again a place where we could all meet as equals. But you will have to shout at Chris.