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Dr Muriel Newman

The Foreshore Swindle: Speak now or forever lose your beach

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In his iconic book “Free to Choose”, Milton Friedman explained the strategy used by many governments when they want to pass legislation that will benefit a minority of citizens at the expense of the majority: “When a special interest seeks benefits through highly visible legislation, it must not only clothe its appeal in the rhetoric of the general interest, it must persuade a significant segment of disinterested persons that its appeal has merit. Legislation recognised as naked self-interest will seldom be adopted”.

This is the game that John Key is playing as he attempts to cement in the long-term support of the Maori Party through his race-based carve-up of New Zealand’s publicly owned coastline. If all goes according to his plan, the Marine and Coastal Area Bill will be passed into law by the end of summer. Iwi leaders are already lining their claims up in anticipation. In spite of their orchestrated protestations about the Bill, they can’t believe their luck.

As long as the qualifying criteria for claims remains extremely weak (the Attorney General’s drafting has ensured that) and claims can be negotiated through a political process involving secret negotiations with their friendly Minister in preference to having it heard in the Courts, they will be laughing all the way to the bank. Thanks to their new cosy deal with the Chris Finlayson and the National Party, iwi leaders will have won the biggest property and wealth transfer since the Treaty was signed in 1840. The losers will be ordinary New Zealanders as the publicly held foreshore and seabed – long regarded as an integral part of the Kiwi way of life – is stripped away. Kiwis will become second-class citizens, guests in their own land.

Carefully couched in the language of political spin and half-truths – ‘giving them back what is rightfully theirs’ and ‘nothing much will change’ – a large proportion of the public and the media have been duped into thinking that the Marine and Coastal Area Bill is nothing to worry about. But those of us who have been following this issue have seen the deceitful strategy employed by the Maori and National Parties.

In this week’s Breaking Views Blog Disingenuous or Dim? Mike Butler looks at National’s misinformation strategy as they try to discredit the concerns of the Coastal Coalition – a grassroots movement of thousands of Kiwis who are fighting to keep the foreshore and seabed in Crown ownership – by abuse and criticism instead of honestly coming clean about what they are trying to do.

John Key has tried to justify his Bill by claiming that will heal a “weeping sore”. In reality it is about to create an open wound within New Zealand as an entirely new grievance industry is spawned. The Maori Party has already stated that this Bill will not be the end of this matter – they will not be satisfied until they have Maori Title to the whole coast. And iwi leaders have been open in expressing their desire for power and control over the entire 200 mile Exclusive Economic Zone – including all fishing and mining. Lying ahead will be claims and counter claims, protests and squabbles, and demands for taxpayer funded compensation as iwi after iwi make the case that they would have had a claim for the foreshore and seabed – if it hadn’t have been for Crown confiscations…

Submissions on the Marine and Coastal Area Bill close this Friday November 19th. If you are concerned about the future of this country I cannot urge you strongly enough to exercise your democratic right to have your say and oppose this radical Bill. And please be assured that when it comes to submissions, numbers do matter. So even if your submission is as brief as “I oppose this Bill”, it will make a difference. Please make the effort to tell this government what you think of their plan to extinguish the public ownership right that you and your family and generations of Kiwis have enjoyed to our beaches and the sea.

When John Key launched the government’s review of the foreshore and seabed law back in March, he assured New Zealanders that he would only change the law if there was widespread public support. With 77 percent of the 1500 submissions to that review being opposed to the repeal of Crown ownership, and 91 percent being opposed to the Attorney General’s proposed Bill, the message against a law change could not be stronger. In spite of that, John Key appears intent on breaking his word and forcing the law change through against the wishes of the New Zealand public.

It is all very well for the Prime Minister to claim that once Maori own the foreshore and seabed then they will allow free access. But that assurance is not his to give. Under his Bill, the coast will be owned by tribal groups, many of whom already have a history of strong disregard for the rule of law. And if iwi really don’t want the public around, all they have to do is use the powers in the Bill to declare wahi tapu to prohibit public access and ensure wardens are on patrol ready to slap on the $5,000 fines set out in the Bill. This would ensure that iwi would have the area to themselves since there are no rights of public appeal.

Anyone who thinks such things won’t happen can’t have been listening to the news because recent Maori protests have focussed on the foreshore and seabed. The protest that centred on the Taipa Sailing Club closed the public boat ramp and prevented a range of scheduled events including activities for children. Protestors demanded that everyone who walked on the beach or launched a boat had to ask permission. Those who refused were threatened and abused, and there were assaults. While the Police have now moved the protestors away, there are reports that they are expected back any day.

Another foreshore and seabed protest at Papa Aroha on the Coromandel ended just a few weeks ago after the case went to Court and trespass notices were issued. The occupation had been going on for four months with protestors claiming that they had customary rights to the foreshore and seabed. The protestors placed barricades across the road to assert control and exclude others. They erected wahi tapu signs on adjoining public reserves, and denied access to the beachfront, abusing anyone who tried to use the area, and intimidating nearby campers. While the protestors were finally moved off by the Police, they were back a few days later, and have threatened more protest action in the future.

This is a sign of what’s to come if National’s Bill becomes law.

But as we think about these Maori groups lining up to get their hands on the spoils of their coalition deal with National, it is important to reflect on the fundamental issue at stake here. When the Court of Appeal delivered their rogue judgement in 2003 that started this whole controversy over the foreshore and seabed, they stated that customary title ‘might’ exist around the coast and that groups who believed they had such rights should be able to test their claims in court.

What National has done in their new Bill is not only to allow claimants to sidestep the rigours of proving their claim in an open court by allowing direct negotiation with a Minister of the Crown (presumably Chris Finalyson, a former Treaty negotiator for Ngai Tahu), they have weakened the qualifying criteria to the point where almost anyone could make a claim.

Under the present law, the only iwi who can claim that they have the equivalent of a customary title to the foreshore and seabed are those who have land adjoining the claim. With the foreshore and seabed being made up of the ‘wet’ part of the beach and the sea, claimants have to show that they have used this area in an ‘exclusive and uninterrupted fashion since 1840’. Yet in the proposed Bill, the need for iwi to own land next to the area being claimed has been dropped. But how on earth can an iwi possibly ‘own’ the wet part of the beach and the sea when they don’t live next to it? Where do they go when the tide comes in? Where do they sleep at night? The new definitions in the Bill render the whole customary title concept a joke.

Similarly, the test of ‘exclusive and uninterrupted occupation since 1840’, which is the other main criteria that iwi must prove if they are to gain title to the coast, has been watered down. The Bill allows the claimed area to have been transferred to other people outside of the claimant group so that ‘uninterrupted’ no longer means what it says. And a new Supplementary Order Paper from the Attorney General allows that claims for ‘exclusive occupation’ can still go ahead even if other groups regularly use the area for fishing and navigation purposes!

National should stop playing the game of pretending that the Bill will settle historic grievances, when it is clearly a law to allocate the coast to iwi, so iwi can exploit the privilege for their own private commercial benefit.

And while talking about game playing, Labour should stop their game playing as well – pretending that National’s Bill is the same as their 2004 Foreshore and Seabed Act so that they don’t have to oppose it and so do not risk getting offside with the Maori Party with whom they are hoping to do a deal after the next election!

Likewise National party MPs have u-turned. In 2004 the National Party MP for Nelson, Nick Smith, spearheaded a petition to Parliament, supported by 17,654 others, requesting that “the House retain Crown title on the beaches, seabed and foreshore”! Nick Smith went on to say, “Anyone who wants to divide up the shoreline for one exclusive group of citizenship must be stopped”. You might well think that this is a rallying call from the Coastal Coalition!

In 2004, the National Party ran media advertisements supporting ownership of the foreshore and seabed remaining with the Crown for the benefit of all New Zealanders. They expressed concern that, “Holders of Customary Right Orders will have the power to ‘veto’ resource consents…. You know what that means. You want to build a boat ramp. But local iwi says, “Not so fast. Your ramp will have a ‘significant adverse effect’ on our customary rights”. You then have two choices. A court case (bound to be long and expensive). Or a bribe (merely expensive). You pay the koha”.

National’s ad concluded with this comment, “This legislation will divide our country, not bring it together. This is not the way to build a better future for all of us. National says the foreshore and seabed is Kiwi property. Not iwi property.”1

Yes, you have read that correctly – in an astonishing about face, the party that claimed it did not want to carve up the coast along racial lines in 2004, is now doing just that in 2010. It is no wonder that National has tried to gloss over the massive changes in their Marine and Coastal Area Bill and keep the public in the dark by pretending that nothing will change and that this Bill will not be divisive. They know damned well that it will have a massive impact but do not want to have to justify their about-face to supporters.

This week’s NZCPR Guest Commentator is economist Prof Roger Bowden, who has concluded that the Bill is likely to generate an entirely new round of Waitangi-style settlements, with settled claims put up for re-negotiation and compensation as well. In his article Marry in haste, repent at leisure, he comments:

“Customary marine title (CMT) amounts to an entirely new frame of reference for economic ownership; and a fuzzy frame, given the lack of criteria for establishing title or defining areas. The stage will be set for progressive relaxation of the criteria by future governments pressured by coalitional or other imperatives. The likely outcome is an expansion of areas and activities qualifying for CMT. The economic cost on the NZ economy will likewise become an increasing burden, for this is in effect a tax on the whole in favour of a part. Maori will become popularly identified as a sub-nation of rent seekers. That is immensely damaging for our long term economic prospects.

“The proposed Act is constitutional in character. A change of this magnitude, and such lasting effects, should be referred to a referendum, in which each side can present their case in public debate according to a democratic process; with enough time for arguments, both pro and contra, to come to light and be aired. The Australians can do it, so should we”.

If you are concerned about all of this there is something you can do. Put in a submission and tell everyone you know to do the same. Then send this newsletter on to anyone else who you think might share your concerns. Submissions close on Friday November 19th.