Almost without a ripple, John Key’s administration is about to table a bill in Parliament that will have far reaching consequences that few can imagine. I am of course referring to the Government’s proposed changes to the foreshore and seabed.
The foreshore and seabed is the common heritage of all New Zealanders. It has always been held by the Crown on behalf of us all. Now Maori are claiming it for themselves. But if Maori had really believed they owned the foreshore and seabed, almost every Treaty of Waitangi claim since 1985 would have included such claims. None did.
By Christmas, John Key intends to have passed a law that will result in the race-based privatisation of New Zealand’s beaches and sea. This priceless public asset will be given to Maori, not because the present law is not working, but because John Key wants to build a long-term political relationship with the Maori Party. Politically it’s a good move – he takes the Maori seats away from a potential Labour coalition, and he has an alternative to ACT. But political wheeling and dealing has a price and this is a price too high. What’s more John Key has no mandate for trading away the foreshore and seabed to Maori radicals. If National had campaigned on giving the foreshore and seabed to Maori at the 2008 election, they would not have won. And with only 2.3 percent of the Party vote, the Maori Party does not have the mandate of wider Maori either.
John Key is banking on the fact that the public will remain largely unaware of the great trade-off that his government is about to perpetrate until after the law is passed. If all goes according to National’s plan, Crown ownership of the foreshore and seabed will be repealed by Christmas, leaving the way open for Maori up and down the country to begin lodging their claims for our priceless public asset. Not only that, but the Prime Minister’s assurance that once Maori tribes own the foreshore and seabed, public access will be guaranteed, does not hold water. Once Maori take ownership, they will also be given the exclusive right to ban public access to areas that they deem to be of special significance to Maori. There is no transparency about this process and no rights of appeal, so if Maori owners decide that popular fishing spots and holiday sites are sacred, then tough luck – public access will be denied. And with three different levels of Maori claims able to be imposed on the foreshore and seabed through the new bill – customary title, customary right, and mana tuku iho – involving hundreds of different tribes each with their own wahi tapu, the public should expect that their access rights could be severely compromised.
When the Prime Minister has been asked in Parliament to guarantee that under his proposed law, access to the beaches and the sea will be free, he has been unable to give such an assurance. That means that if Maori tribal owners decide to charge for access to their newly privatised beaches and Territorial Sea – there is nothing that can be done to stop them. After all, many tribal activists already believe they own the country and openly flout the laws of the land, driving away people with legitimate rights of access. No politician will be able to guarantee that Maori will not charge for public access to the foreshore and seabed once the area is in their private hands.
Another massive deception being perpetrated by John Key involves claims that the new law will enable Maori to have “their day in court”. The genesis of this deceit goes back to 2003, when the Court of Appeal ruled that Maori had the right to take claims for “customary title” over the foreshore and seabed to the Maori Land Court . However, in making that ruling, the Judges noted that there was likely to be little – if any – Maori customary land left in New Zealand, since over the years it had been the job of the Maori Land Court to investigate the ownership of all unallocated customary title in order to allocate it to Maori owners as Maori freehold land. The test for customary title is high – Maori had to own ‘contiguous’ land adjacent to that being claimed and in addition, they had to prove to the satisfaction of a Court of law that they had had continuous and uninterrupted usage of the area since 1840. The Appeal Court Judges thought few, if any, such claims would succeed.
Labour’s 2004 Foreshore and Seabed Act, which reaffirmed Crown ownership of the foreshore and seabed, was designed so that Maori could have “their day in court”. If Maori wanted to claim a territorial customary right, they had to prove their case in the High Court using the “contiguous” land and “exclusive and uninterrupted usage since 1840” tests, as well as being able to show that they had retained the right to restrict public access to the foreshore and seabed in question. Since the law was passed six years ago, no such claims have been completed, although Ngati Porou’s is in the pipeline.
This means is that the claims by politicians and the Maori elite that Labour’s Foreshore and Seabed law denied Maori their day in court, is false. Similarly, the claim that John Key’s new law will give them their day in court is also false. The proposed new law does NOT require Maori to have a day in court at all. Instead they can sidestep the legal process (which is a principal public interest safeguard whereby claimants have to prove their claims in an open court of law) in favour of a purely political process, whereby claimants can negotiate favourable settlements through backroom deals with friendly Ministers. While the “day in court” option will exist it will clearly only be used when political hose-trading has failed.
This week’s Guest Commentator, Michael Coote, an Auckland based freelance writer and financial journalist, has carefully analysed John Key’s proposed new law and, in his article The Great Foreshore and Seabed Sellout, he warns that it will be “open slather for claims ranging from the average high tide mark, including coastal riverbeds, out to the 12 nautical mile limit and including all airspace above and seabed below. No wonder potential Maori claimants are smacking their lips at the prospects lying before them. They are being gifted the biggest land (and sea) grab in New Zealand ’s modern history. Short of donating New Zealand ’s entire landmass as well, there will never be a better deal for Maori than what the government has determined upon doing, even if the price to the rest of society includes violation of the government’s duties of good stewardship of Crown assets and trampling on the rights of all other New Zealanders in the process.”
In his conclusion Michael asks, “Can the general public have any faith in the National-led government to defend its legitimate existing interests in the foreshore and seabed?” He answers with a resounding “No”!
“The way the government has structured the deal around relinquishing Crown title to create ‘public space’ guarantees destruction of the legally defendable public interest in the foreshore and seabed, and the legal definition of that area ensures that Maori claims will be vast and sweeping, further augmented by the Trojan horse concept of ‘universal recognition’.
“The government itself – principally in the persons of Prime Minister John Key and Attorney General/Minister of Treaty Negotiations Chris Finlayson – has made repeated statements that have the appearance of being calculatedly false, misleading and deceptive about how minimal the changes that will flow through will be. The public should not be reassured by the government’s soothing words, and instead should be up in arms to defend its legitimate and abiding interests from the Maori foreshore and seabed grab.”
At a time when Scotland is fighting to wrest control of their foreshore and seabed from the UK government, so that the citizens of Scotland can gain the full benefit of their natural coastal resources, it is inconceivable that John Key is planning to deny New Zealand citizens those benefits through his race-based privatisation plan. And it’s not as if the country is so rich that we don’t need the economic boost – any visit to a hospital emergency department out of regular hours will demonstrate only too clearly that New Zealand now has third world living standards instead of the first world facilities that we aspire to.
At the present time the foreshore and seabed is preserved as an unalienable and common heritage of all New Zealanders through Crown ownership and management. It is an important part of what makes us New Zealanders. Over time the benefits of that resource – including the substantial mineral wealth and energy reserves – will flow back in improved living standards. And the value of those resources is considerable: Crown Minerals has estimated the value of the 30 billion tonnes of iron sand reserves alone at up to $1 trillion over time, and then there is titanium, vanadium, rock phosphate, coal, gas hydrates, rare earths, as well as aggregate, to name but a few of the priceless resources that belong to all New Zealanders through Crown ownership of the foreshore and seabed.
John Key should not be allowed to get away with trading our heritage for Maori Party votes. He thinks that as long as he can pass his legislation before Christmas that Kiwis will forget and still vote for him at the next election. But he should realise that New Zealand’s love affair with the coastline runs deep, and it’s something they will not want to give up to radical Maori in yet another Treaty of Waitangi-style handout.
John Key needs to think twice about trading away that connection for his political convenience. If the Bill is tabled and passed in the form currently proposed the public’s outrage will gain a momentum – and that will be at National’s expense.