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Dr Muriel Newman

Setting the record straight

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Our lives begin to end the day we become silent about things that matter”- Martin Luther King

There are some causes in this world that good people just can’t ignore. That’s why many of us are speaking out against National’s planned repeal of the 2004 Foreshore and Seabed Act. It’s also why some are taking a stand against the Maori protest movement – people like the residents of Taipa, who stood up to the bullies from Ngati Kahu (who are acting with the blessing of Professor Margaret Mutu!) by holding a picnic on the disputed land.

In his guest commentary Protest without end, journalist and historian Mike Butler, looks at the history of the Maori protest movement, which uses fear and intimidation as its major weapon. He explains, “An activist group, Nga Tamatoa (The Young Warriors), emerged in 1970 out of a conference at Auckland University. The group consisted of mainly urban and university educated Maori who took inspiration from Marxist liberation and indigenous rights movements across the world, including the Maoist American Black Panthers. The group called for the Treaty of Waitangi to be ratified. It organised nationwide petitions to have the Maori language taught in schools, and made submissions on government policy. Nga Tamatoa disrupted the 1971 Waitangi Day ceremony, and in the following year it staged a walkout.

“Nga Tamatoa had radical and conservative elements. At first, the radical faction asserting Brown Power and Maori liberation attracted headlines. But the more conservative element took control. They tended to look to liberal elements in the ruling class for change…”

Making a stand against Maori radicalism and the greed-based grievance industry is an issue that matters to New Zealanders. National is feeling the force of those concerns head on with its proposal to give away vast tracts of our coast to Maori – both from within and outside of the Party.

As a result, the National Party’s spin machine has gone into overdrive. They are desperate to persuade the public that there is nothing to fear from their Bill. A recently published document entitled “Setting the Record Straight” states, “You may have heard opponents of the Marine and Coastal Area Bill making inaccurate claims about the legislation. We want to set the record straight”. The points made in the document are also included in messages sent out by the Prime Minister and other National Party Members of Parliament in response to emails from concerned members of the public.

The reality is, however, that it is the National Party that is running a campaign of half-truths.

The point is that those who have studied the Bill come to the same conclusion: the Bill undermines fundamental legal principles making it too easy for Maori to gain control of the foreshore and seabed that is currently vested in the Crown for the benefit of all.

The Herald’s John Roughan has warned, “We are about to do something fairly dangerous. It is hard to imagine anything more important than the freedom of the coast. We take it for granted that we can stop at any beautiful spot, walk on the sand, sprawl in the sun, have a swim and lie on the beach for as long as we like, anywhere we like.” He then states that as a result of National’s Bill, “Venturing on to an unknown beach could be fraught. The freedom we take for granted now could no longer be assumed. Something priceless will be lost.”[1]

The National Business Review warned that the Minister responsible for the Bill, Chris Finlayson’s “zeal to make Maori superior citizens” will create “a pathway to civil unrest of the likes not seen in this country since the 1951 waterfront strikes or the 1981 Springbok rugby tour riots.”[2]

Left- wing political commentator Chris Trotter was deeply concerned about the attacks that were being made on people speaking out against National’s Bill: “Like many Pakeha politicians who have embraced the Maori Nationalist cause, Attorney General, and Treaty Negotiations Minister, Chris Finlayson, reserves his most deadly venom for those who dare to question the State’s race relations policies”. He added, “Am I alone in suspecting that, constitutionally-speaking, something important is about to take place – without the nation’s consent?”[3]

In a recent speech to the National Party at Orewa, Don Brash spoke out against the race relations policy direction of the Party he once led by arguing, among other things, that the Marine and Coastal Area Bill will have serious implications of “historic proportions affecting every New Zealander”.[4]

Lawyer Stephen Franks, a National Party list candidate, who is arguably one of the country’s foremost authorities on foreshore and seabed legislation, said in his submission to the Bill, “It is unprincipled, dishonest and damaging. It is the translation to law of misleading political slogans. It flouts values that are critical to maintaining respect for the rule of law, and property rights. It is bad for Maori and worse for the rest of us”.[5]

So let’s look at the claims being made by the National Party.

National claims “The legislation does not allow for charging for public access to the common marine and coastal area. It’s simply not possible.” Yet under the well-established rule of statutory interpretation, when one statute replaces another and a provision is deliberately left out, 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 the Marine and Coastal Area Bill, as it stands, National clearly intends to allow Maori the right to charge for access. This means the assurance, “National’s bottom line has always been guaranteed free public access to the common marine and coastal area. That hasn’t changed.” simply does not hold water.

National claims, “There has been extensive consultation on the new legislation over almost two years”. While that is technically correct, the reality is that the consultation has been almost entirely with Maori. Non-Maori stakeholders have been largely ignored. That includes the Far North Mayor, who presides over an area where some of the first claims for the foreshore and seabed can be expected, and where trouble continues to escalate in the once peaceful coastal settlement of Taipa.

National claims, “In April this year, Attorney-General Chris Finlayson attended a series of 20 hui and public meetings around New Zealand, following the release of a discussion document on options to replace the 2004 Act. Around 1500 written submissions were received and considered.”

What National has omitted to reveal is that while the submissions were certainly received, they were not considered. According to the official analysis of submissions, “77 percent of submitters opposed repeal of the Foreshore and Seabed Act 2004”, and “91 percent opposed the government’s overall approach as outlined” – if these submissions had been considered, the Bill would have been canned long ago. Not only that, but by pushing ahead with the law change, the Prime Minister is also breaking his personal promise made at the launch of the review, that if the wider public was not in favour of a law change, then it would not go ahead.

National claims “There is no secret deal process for customary title on the common marine and coastal area. Any suggestion otherwise is scaremongering”. This, of course, comes from the same party that secretly signed the United Nations Declaration of the Rights of Indigenous Peoples – a declaration that the Labour Government had determined was not in the public interest – with no warning and no public mandate at all!

Contrary to the claims that no secret deals are possible, clause 93 of the Bill allows the Minister to negotiate a customary title directly with claimant groups, without any legal, parliamentary or public oversight. Clause 94 requires Parliament to rubber stamp the agreement through an Order in Council – instead of an Act of Parliament. And Clause 95 requires the agreement to be notified to other groups – after it has all been finalised.

In his submission to the Bill, Stephen Franks is so concerned about the potential for political corruption associated with these secret-deal-making provisions that he recommends they be omitted: “Omit clauses 93 to 95 allowing the Minister to create customary marine title and protected customary rights. Those powers will generate continual perceptions (or the reality) of political corruption, especially if the Maori Party hold the balance of power. In light of that likelihood it is constitutional recklessness to leave the temptation of the creation of valuable mineral rights in the hands of politicians, when they should instead be dealt with only by the courts under clauses 96 to 112, applying clear legal tests”.

National claims “The criteria to apply for customary title is extensive. Any notion that we’ve lowered the bar is misleading”. To address this issue it is important to remember that the Court of Appeal Judgment in the Ngati Apa case – the catalyst for this whole saga – affirmed a decision made by Maori Land Court Judge Ken Hingston that Maori claims for customary title to the foreshore and seabed should be able to be investigated by the Maori Land Court. Judge Hingston has now retired and is a Maori Party Vice Chairman.

When the Labour Government proposed the 2004 Foreshore and Seabed Act to reaffirm Crown ownership of the foreshore and seabed and settle the uncertainty raised by the Court of Appeal’s Ngati Apa ruling, they adopted criteria indicated by the Court of Appeal for their equivalent of a customary title. Firstly, only iwi owning Maori customary land abutting the foreshore and seabed were entitled to make a claim, and secondly, they had to prove in the High Court that they had used the area continuously and exclusively since 1840. Labour was mindful that the Judges believed few if any pockets of customary land remained in New Zealand and they set the criteria in their legislation accordingly.

In comparison in their Bill, National is planning to dramatically lower the bar in four distinct ways. Firstly they are planning to drop any need for claimants to own Maori customary land abutting the claimed area. Secondly, they are planning to drop the need for claimants to have owned the area continuously since 1840, by allowing it to have been transferred from other groups different from the applicant group. Thirdly, National is planning to drop the exclusive use requirement by allowing other groups to have used the area during the period – including for fishing and navigation. And fourthly, National no longer requires claims to be proven in the High Court, allowing them instead to be determined through political negotiation. Without a doubt, these changes will open the floodgates to claims, which is why the Attorney General has predicted that under his Bill, corporate iwi will gain title to a massive ten percent of New Zealand’s coastline. But with the Maori Party planning to negotiate a further lowering of the bar during future post election MMP negotiations – with a view to eventually gaining Maori Title to the entire coast – it is clear that National’s Bill is just the beginning and over time, more and more of the coast will eventually fall under Maori control.

Some are describing National’s Bill as the most significant law change of our generation. It would take away our personal ownership right to the coast – a right that has been enjoyed by all past generations – relegating this and future generations of non-iwi New Zealanders to becoming second class citizens in our own country.

The National Party has moved into damage control to stem the tide of public opinion and internal division that the Bill has created. Their attempts to counter the mood swing have been spin without substance and will do little to heal the wounds that are opening within its own Party and wider New Zealand. I understand a number of National’s major donors have withdrawn their financial support because of dissatisfaction over this issue and in particular over the self-righteous and arrogant manner with which Chris Finlayson has presented himself.

New Zealanders are now finding their voice, and have drawn a line in the sand to say “no more” to Maori intimidation and greed-based treaty settlements. The foreshore and seabed is ours, for all to enjoy and benefit from.

1. John Roughan, Hidden danger in sacred sand
2.National Business Review, November 5th 2010
3.Chris Trotter, Putting us in our places
4.Don Brash, Return to Orewa
5.Stephen Franks, Submission on the Marine and Coastal Area Bill