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Dr Muriel Newman

Travesty of Trust

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It appears that unless there is intense public pressure NOW, John Key will pass the Marine and Coastal Area Bill into law under urgency this week. Why else would the Bill have been rushed back from the Select Committee two weeks early, before members of the committee had even read the officials’ 500-page report, obtained crucial legal advice, or made amendments to the bill? Why else would National have refused to rule out urgency when asked in the House on Thursday whether they intended using urgency to pass the bill into law this week?

What it means is that, unless the Prime Minister puts the Bill on hold, by the end of this week, the New Zealand public will no longer own the foreshore and seabed. Crown ownership – which gives every Kiwi the same free and unfettered access to the beaches and the sea that our ancestors enjoyed – will be a thing of the past. John Key will have sacrificed Crown ownership of the foreshore and seabed in readiness for a race-based transfer of the coast to iwi.

This government does not deserve the trust people placed in it on Election Day 2008.

The entire process regarding the replacement foreshore and seabed legislation has, from start to finish, been a disgusting display of how democracy should not work. One could be forgiven for thinking we live in a Parliamentary dictatorship.

John Key and his sycophantic MPs should hang their heads in shame. The entire National party caucus have behaved like the rear end of a pantomime pony with the smiling John Key as the front half.

While John Key has soothed and smiled his way through the controversy, the Attorney General has displayed a shameful contempt for the democratic process, by attacking non-Maori who opposed his bill and had the courage to question his dreadful legislation.

As events have unfolded the glaring flaws in the legislation have now become obvious to all. There is a tremendous irony in the fact that these flaws – first pointed out by the Coastal Coalition and mocked by the Prime Minister and Attorney General – are now acknowledged as being legitimate by National, who are even parading their “corrections” as meritorious!

A case in point is the fact that the Marine and Coastal Area Bill does not explicitly guarantee that access to the beach and the sea in Maori-owned areas will be “free”. Even though the current law explicitly prohibits charging for access, that clause has been dropped from the new bill – presumably because iwi want to be able to charge the public for access to their coast.

Concerns about this free access issue were first condemned by National as scare mongering, but they have now acknowledged that the issue does need to be corrected. However, after almost six months, the wording has still not been produced. Does this mean that the amendment will contain weasel words that will still leave the way open for Maori to charge for access? I suspect so.

It was the Coastal Coalition that exposed the fact that the carve up of our coast would not take place through Maori “having their day in court” – as was loudly being proclaimed by National and the Maori Party – but through secret backroom deals with politicians, with court action being used only as a last resort. Again, Chris Finlayson has now acknowledged that the unilateral powers given to the politicians could be problematic. But rather than requiring iwi to prove their claims in the High Court, which is what most submitters to the bill called for, his so-called ‘solution’ – which is to require that parliament rubber stamps the deal – is just a smokescreen, leaving politicians free to choose who gets what of our coast!

John Key as already agreed to give away one tenth of our coastline in return for the Maori Party’s five votes – and he didn’t even need to include the Maori Party in his coalition! How much more of our coast will he give away when he does need their support to stay as Prime Minister? Surely no politicians should have such unbridled power to trade away what is ours – all of ours – to suit his political ambitions.

The Coastal Coalition will not be satisfied until this dreadful piece of legislation is dead and buried. The 2004 Foreshore and Seabed Act is not the “weeping sore” that John Key claims it to be. Certainly, some Maori sovereignty activists are unhappy – and they will remain that way while non-Maori live in their Aotearoa! But the vast majority of the public support Crown ownership – and that’s the way it should stay.

If John Key passes the Marine and Coastal Area Bill into law he will be making the biggest mistake of his short political career. He thinks Kiwis don’t really care who owns the coast. He thinks that if he gives it away to the Maori tribal elite, there will be no long term repercussions.

Well, he’s wrong.

The prime Minister is also wrong if he thinks that passing the Bill will be an end to the opposition. The only reason there have not been protests in the streets is that most people still don’t know what’s going on. As is often the case, the real outrage will come when the effects are felt – when people see:

  • · One kilometre in ten of the coastline being privatised to the Maori tribal elite.
  • · The rise of a brand new grievance industry – since the Maori Party has already said they will not stop until the whole coast is in Maori hands.
  • · Iwi developing the coast without needing to comply with the Resource Management Act, vetoing the proposals of others, and charging for everything from boat ramps to surf clubs to undersea cables.
  • · Iwi gaining ownership of some of the massive reserves of minerals found in the foreshore and seabed that are presently held in the national interest – including offshore deposits of iron sands, which are valued at up to $1 trillion and considered to be among the most extensive and concentrated in the world.

At the start of the whole foreshore and seabed controversy, John Key promised that if there was not widespread support for his Bill, he would leave the current law in place. Well, the public have now had their say on the bill and the response from the thousands of people who have read the bill and made submissions is overwhelming – no-one wants this bill. Not Maori, nor non-Maori. The bill is widely regarded as bad law.

Yet in spite of this overwhelming opposition, the Prime Minister is refusing to keep his promise to withdraw this unpopular bill and leave the present Foreshore and Seabed Act in place.

While most New Zealanders understand that our foreshore and seabed has always been owned by the Crown, the Attorney General has tried to claim that the present Foreshore and Seabed Act overruled 164 years of common law development. I asked David Round, lecturer in law at the University of Canterbury and author of Truth or Treaty? for his opinion on this matter. David’s response is as follows:

“It is completely untrue that the law of New Zealand recognised these rights for 164 years. The Ninety Mile Beach Case in 1963 held that these rights no longer existed, and that case came to that decision on the basis of the Harbours Act 1878 and the commonsense idea – repeated by one of the 2003 judges, J. Gault – that once the Maori Land Court had decided on title to dry land, that was an end of its jurisdiction, and there could be no other Maori owners to the foreshore.”

In other words, “Ninety Mile made it quite clear that since the nineteenth century this ‘common law right’ simply did not exist. That was the universal understanding, and many Acts of Parliament were made assuming that this was the law. It was only in 2003 that another court of appeal made a decision – a decision improper (because the Court of Appeal is usually under an obligation to follow its previous decisions) and political – and overruled the 90 Mile case. Only since 2003 has the ‘common law right’ Finlayson speaks of existed in our law. It was remade then by the judges. But even that Court of Appeal made it clear that it would only be in rare and remote cases that a Maori claimant would be successful.”

So the Court of Appeal admitted that if any customary title still existed in New Zealand it would be rare and remote. Yet in response, National and the Maori party have colluded to remove the whole foreshore and seabed from public ownership so that it can be progressively privatised to the Maori sovereignty movement – through a gradual relaxation of the qualifying criteria. It is a gross injustice.

This week’s NZCPR Guest Commentator, freelance writer and financial journalist Michael Coote, in his article A question of trust – the government and the Marine and Coastal Area Bill, describes it this way:

“The National-led government is attempting to force the Marine and Coastal (Takutai Moana) Bill through Parliament as soon as it can get away with it. The electorate is being asked to trust the National-led government – more particularly prime minister John Key and Treaty negotiations minister and Attorney-General Christopher Finlayson – to know what they are doing with this dangerously flawed, divisively racist, powderkeg piece of legislation they are sponsoring…

“The political isolation of National and the Maori Party on this issue is palpable and National in particular should realise that it is stepping off a cliff if it passes the bill under urgency or otherwise.”

If you believe New Zealand’s foreshore and seabed should stay in Crown ownership, then please visit our Parliament page and email MPs directly to express your views. Please encourage others to tell National MPs – and Peter Dunne who holds a crucial vote – exactly what they think of their bill! There is no time to lose – if you feel strongly about this issue, please help us spread the word now.