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Dr Muriel Newman

An open letter to John Key

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“A discussion document released today said the Government preferred to declare the foreshore to be public domain, but reassert the right of Maori to seek modified customary title through the courts. Mr Key said the public domain concept was a pragmatic way to heal a ‘weeping sore’, but if there was not wide support then the current law could remain in place. The intent here is to put this issue to bed in a satisfactory way to the bulk of New Zealanders…” – NZ Press Association, March 31 2010

Dear Prime Minister,

In late March, when you launched your government’s Review of the 2004 Foreshore and Seabed Act, you stated that you would leave the current law in place if there was insufficient support for your plan to repeal the Act and introduce a replacement law.

I am writing this open letter to ask you to honour that commitment to the New Zealand public in light of the release last week of the official documentation from the Foreshore and Seabed Act Review that shows “77 percent of submitters opposed repeal of the Foreshore and Seabed Act 2004”, and “91 percent opposed the government’s overall approach as outlined”. The summary of submissions prepared by the Ministry of Justice can be viewed here .

With the vast majority of the more than 1500 submitters who made the effort in the limited 20-working-day time period available to examine the review documents and express their opposition, you clearly have no public mandate at all to continue on your course to change the law.

Given your commitment that you would not change the law without public support, I can only assume that the reason you are pushing ahead is that the Attorney General has not shown you the official Review results. While the Attorney General has kept the details of the Review suppressed from the public for almost six months – only releasing it last week as a result of my request under the Official Information Act – I would have assumed you would have been fully briefed about the results months ago.

However, now that clear evidence of the high level of public opposition to your proposed law change is in the public arena, on behalf of the New Zealand public, I would ask you to withdraw your Marine and Coastal Area Bill before it does irreparable damage to the future of our country.

Prime Minister, you have described the disenchantment expressed by some iwi over the 2004 Foreshore and Seabed Act as a “weeping sore” that you want to heal. But, with your Confidence and Supply Agreement with the Maori Party only requiring that you review the Foreshore and Seabed Act, there is no possible justification for passing a law that will turn that weeping sore into an open wound for the majority of New Zealanders.

You have claimed that your Marine and Coastal Area Bill will provide an enduring solution to Maori concerns over the foreshore and seabed, yet the Maori Party has already clearly signalled that they intend to use your Marine and Coastal Area Bill as the first step on the way to Maori Title over the entire coast. As recently as this weekend at the Maori Party conference, Pita Sharples said the party’s leadership promised that “more concessions” could be gained in future.

In other words, in light of the Maori Party’s indication that they will not stop until the whole of New Zealand’s coastline is owned and controlled by Maori, your repeal of Crown ownership of the foreshore and seabed will set in motion a new and on-going grievance process, which will enable the powerful iwi elite to put ongoing pressure on politicians year after year, election after election, to lower the qualifying criteria for customary title and extend the rights, until the whole area is eventually under their control.

If you are prepared to set that process in motion, you have clearly not been well briefed on the disastrous consequences that such an outcome could have on our country. In light of that it is disingenuous of you to continue pretending that your Bill will be the end of the matter, when clearly it will be the start of a new phase – the on-going effective privatisation of New Zealand’s entire marine and coastal environment.

This is not an overstatement: it is well known that iwi leaders, who the public perceive to now have undue influence on your government, will not be satisfied until the whole coastal area – right out to the 200 mile Exclusive Economic Zone – is in Maori Title. One of the most powerful iwi, Ngai Tahu, stated in their submission to the Review that they do not accept the 12 nautical mile limit in the current law and want access to more fisheries out to the 200 mile limit. It is also clear from their submission that they do not support full public access to claimed areas, stating instead that only “conditional” public access is acceptable – and then only if accompanied by some form of compensation. This and all other submissions can be viewed on the Ministry of Justice website here.

Prime Minister, you have repeatedly claimed that your Marine and Coastal Area Bill ensures that public access to the foreshore and seabed is ‘free’. For you to have reached that conclusion I must respectfully conclude that you have not read the Bill.

Under the well-established rule of statutory interpretation, when one statute replaces another and provisions are deliberately left out, then there is a presumption that Parliament no longer wanted that provision to apply. In the present Foreshore and Seabed Act 2004, section 40 prohibits the charging for access in Maori-controlled areas. By leaving this provision out of your Marine and Coastal Area Bill, your government obviously intends to allow Maori the right to charge for access. This flies in the face of the assurances you have made to the New Zealand public.

Furthermore, your Bill allows iwi to exclude the public from areas they control through the unilateral imposition of ‘wahi tapu’. As David Round, lecturer in law at Canterbury University explains, “the government’s bill is absolutely clear that when Maori claimants obtain their customary title, they will be able to designate areas as ‘wahi tapu’, and the public may be wholly or partly excluded from these areas, or allowed entry only on conditions. Section 77 specifically speaks of ‘prohibitions or restrictions on access’. No-one can say what these areas will be. They need not be burial-grounds, or the sites of battles – although why should it be forbidden to visit a battle-field? Do we desecrate Gallipoli by going there? No, wahi tapu are merely ’sacred’ in any traditional, religious, ritual or mythical sense. That could be anywhere. Excuses will be found, or invented. There need be nothing there – the Historic Places Trust has already recognised one area as wahi tapu merely because it is mentioned in a song. We simply cannot say where these areas are, or how large they will be, until after this bill becomes law, when we will undoubtedly receive some very unpleasant surprises.”

Essentially this means that that the public could be prohibited from visiting large areas of the coastline that are controlled by iwi under your Marine and Coastal Area Bill – again breaking your promise of ‘guaranteed free public access’ to the coast.

Prime Minister, the assurances you have given about how your Bill will give Maori ‘their day in Court’, do not stand up to scrutiny. In your Bill, instead of requiring a standard legal process whereby iwi prove their customary title claims in the High Court with settlements agreed through an Act of Parliament, you have approved an alternative process which will see claims settled politically through secret deal-making with Ministers and rubber stamped through an Order in Council. This means that, by the Attorney General’s own admission, few – if any – claimants will ‘have their day in Court’.

In addition, your radical change to New Zealand’s property law, which will see established legal processes replaced by secret political deal-making, could open the door to widespread abuse and corruption. Common sense would surely indicate that enabling iwi to negotiate directly with Ministers over the carve-up of priceless public resources, is not in the public interest.

If your secret political regime is introduced to replace the legal open court process, the question arises of who will safeguard the public interest when such secret political deal-making occurs, for example, during an election year when winning votes is the major concern of all politicians? Not only that, but who will ensure that the advocacy of powerful iwi leaders does not trample over the rights of other tribal groups, when deals are done behind closed doors with ministers who have strong connections with the iwi elite? What about the rights of the public and local authorities who believe that their democratic rights to have a say over what happens in their local communities is being trampled? And what avenues are available for those concerned that customary title claims are bogus, when the deal-making process is secret – where are their rights to voice their opposition?

Prime Minister, hundreds of years of jurisprudence have gone into the creation and protection of property rights, yet you want to overturn all of that to usher in a regime where property deals become the domain of politicians. This is not a concept that New Zealanders would support and nor is it in the wider public interest.

Finally, Prime Minister, it appears that you have done everything in your power to downplay the radical impact that your Bill will have on the future of our country. In this regard you are doing the New Zealand public a gross disservice. The Attorney General has already stated that under your law 2,000 km or 10 percent of our coastline will be effectively privatised to Maori. That is the distance from Cape Reinga to the Bluff wrapped around the coast and stretched out to the 12-nautical mile limit – this is not an insignificant change!

Nor is the end result insignificant when your Bill is likely to lead to the widespread exploitation of the marine environment, as profit-taking by customary title holders becomes a major driving force in coastal areas through the unilateral powers given to iwi to establish mining operations, marine farms, tourist developments and other commercial business – without the normal safeguards that exist under the Resource Management Act and local body consent processes.

Further, with provisions in your Bill to enable iwi customary title holders to transfer or delegate their ownership rights to unspecified others, in return for an appropriate commercial benefit, it is not beyond the realm of possibility that we could envisage a time where the coast is controlled by other nationalities. Given your government’s serious concerns about the Chinese acquiring farmland, it seems impossible to believe you would consider ushering in a law that could see the Chinese controlling New Zealand’s Territorial Sea or, over time, our 200 mile Exclusive Economic Zone!

Prime Minister, in light of your promise that you would leave the current law in place if there was not widespread public support for a law change, on behalf of the majority of New Zealanders who totally oppose this new Bill, I respectfully ask you to withdraw it before it does irreparable damage to race relations and the economic future of New Zealand.

Yours sincerely,
Dr Muriel Newman
New Zealand Centre for Political Research