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Dr Muriel Newman

Decision Time for CIR to Restore Crown Ownership of Foreshore and Seabed

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It is decision time for the proposed Citizens Initiated Referendum (CIR) to restore Crown ownership of the foreshore and seabed. If you are concerned about this issue I would ask you to forward this newsletter on to as many interested people as you can. We need to make contact with as wide a group as possible if the referendum is to have a fighting chance of success.

The CIR was mooted in response to National’s passing of the Marine and Coastal Area Act to privatise the foreshore and seabed to corporate iwi. National had no mandate for their law change. Submissions showed the public were overwhelmingly opposed to carving up the coast along racial lines. By pushing the demands of a radical and racially divisive fringe element in our society – whose goal is full ownership and control of the coast – the National Party has betrayed the very people who put them into power. The vast majority of Kiwis believe the foreshore and seabed is the birthright and common heritage of all New Zealanders equally and that it should remain in Crown ownership.

The CIR is being proposed under the Citizens Initiated Referenda Act 1993. The proposed wording of the referendum question, “Should the Marine and Coastal Area (Takutai Moana) Act 2011 be replaced by legislation that restores Crown ownership of the foreshore and seabed”, is being developed in conjunction with Parliament’s Clerk. If the petition for a CIR goes ahead, we would have 12 months to gain the support of 10 percent of eligible voters. With 3.3 million eligible voters at the present time, and the number expected to rise by the time the petition is finally submitted, we have been advised that 400,000 signatures should be collected – to also take into account duplicate and invalid signatures.

While taking on a CIR is an enormous challenge that certainly cannot be undertaken lightly, there is a growing public unease and concern that if someone doesn’t keep up the pressure, iwi will get greedier with their claims, and the government may get more and more generous in giving away our coast.

National led the public to believe that tribes would only seek ownership of remote parts of the coast that they could show they had used and occupied continuously and “exclusively” since 1840. Yet, according to media reports, iwi are now preparing claims for popular coastal areas including Shipwreck Bay and 90 Mile Beach in the Far North, parts of the Hokianga and Kaipara Harbours, Kennedy Bay and Mataroa Bay on the Coromandel Peninsula, and beaches near Napier, Wairoa, and the Eastern Bay of Plenty. In other words, as far as iwi are concerned, it appears that the doors are open to claim any beach and coastal area – everything is fair game.

To make matters worse, National reversed the presumption about the existence of customary title in their new law – instead of claimants having to prove that customary title still exists (the Court of Appeal Judges who sparked the whole controversy indicated that if there was any customary title left in New Zealand it would be rare and remote), it is now up to the Crown to prove that customary title does not exist. However, with the new law also giving Ministers the power to award customary title through secret negotiations, the public can have no confidence that the Crown will even attempt to prove that title does not exist – even if the areas being claimed are iconic recreational and tourist destinations.

What all of that means is that the New Zealand public needs a watchful eye kept on the whole claims process. Running a CIR would do this, since it could take up to a year to collect the 400,000 signatures needed, and then the government could take up to a year to schedule and run the referendum itself. Essentially this means the issue would remain in the public eye for the next 2 years, which is, by all accounts, a crucial timeframe.

The manner in which National introduced the new foreshore and seabed legislation is one of the most disgraceful examples of underhand politics in New Zealand’s Parliamentary history. It was not an open and honest debate, where the public clearly understood what was at stake. Instead the whole process was based on misrepresentation and half-truths, as the government tried to disguise the extent of their confiscation of prized public assets and their sell-out to the Maori sovereignty movement.

The actions of the Prime Minister were shameful – he promised New Zealanders that if the wider public did not support the law change, then it would not go ahead. Yet in spite of the overwhelming opposition of all submissions on the proposed law change and the bill itself, he broke his promise and pushed the law through anyway.

Then there were the outrageous claims that the new law would give tribal claimants “their day in court”. What was particularly galling was the way the politicians and the media lacked the rigor to challenge that falsehood. If they had looked into it – even for a moment – they would have realised that while the previous Foreshore and Seabed Act required claimants to have “their day in court” as a condition of settlement, the new law enabled claimants to avoid going to court. So instead of claims to privatise areas of the coast having to be proven in a court of law, as required under the old law, such deals can now be negotiated in secret with the Minister – without any judicial scrutiny whatsoever.

Some say the passing of the Marine and Coastal Area Bill was a done deal right from the start. With the wisdom of hindsight, National was certainly determined to sacrifice the coast in return for a commitment by the Maori Party for their on-going support into the future. And as far as Peter Dunne’s flip-flop on this issue is concerned, he appears determined to keep in good with National, lest they campaign against him in his Ohariu-Belmont electorate seat. So in light of those political considerations, persuading anyone to change their mind was always going to be difficult

Which brings us to a critical question: if the CIR proceeds and the referendum is won, will a government take any notice? While that is of course impossible to answer at this stage, a decisive victory in the referendum – clearly indicating that the public wants Crown ownership – would give the government a clear understanding of how deeply that view is held by voters. What’s more, unlike the smacking referendum where most Parliamentary parties were in agreement that the law should not be changed, more parties in Parliament oppose the Marine and Coastal Area Act than support it. So in a Parliament deeply divided over an issue, a government that ignores a decisive referendum, does so at their peril.

In thinking about the pros and cons of referenda, I asked former MP Larry Baldock, this week’s NZCPR Guest Commentator and the New Zealander who has run more CIR than anyone else in this country, to share his thoughts on the challenges:

“The Clerk has received 45 proposals since the CIR Act was introduced in 1993. One of those is yet to be determined by the Clerk. Of the other 44, 22 lapsed, 12 were withdrawn, 6 had insufficient signatures, and 4 went to a referendum. Since my name has been associated with four of those petitions I can say I have experienced both the highs of success, (shattered of course by Parliament’s refusal to recognise the 87.4 percent “NO” vote in the Anti-smacking referendum) and the lows of failure when, after the huge efforts of many volunteers, I have had to accept the disappointment of accepting reality:

  • · The referendum on the Prostitution Reform Act – 202,000 signatures collected but 50,000 short.
  • · The referendum urging the Government to address the real causes of Family Violence and Child abuse – 300,000 signatures collected but 22,000 short.
  • · The referendum to make CIR binding – hardly got off the ground despite 7 out of 10 willing to sign.”

In his article The Challenge of Citizens Initiated Referenda Larry looks at referenda in other countries and has a number of suggestions for reform. One of these is to raise the $50,000 spending cap, which hasn’t been adjusted since 1993! “The spending cap should be dramatically increased or done away with altogether. In this year’s election the Electoral Commission will allocate $3,283,250 among 15 political parties. National and Labour will get $1,150,000 each. After completing the Anti-smacking petition I was referred to the police for possible prosecution for overspending the $50,000 cap by $127.03!”

In summary, we can sit back and do nothing and watch in despair as the iwi aristocracy move in on OUR coastline. Or we can fight back and force the government to listen to public opinion.

Like some of you, I am in two minds about the project. On the one hand, there is the thought of a year’s hard work and the worry that we might fail to gain the necessary number of signatures to force a referendum. Or, that we won’t be able to raise enough funding to give us the best chance of success.

And then, on the other hand I look at my grandchildren – a granddaughter who will soon be three and two grandsons who are almost a year old – and I realise that they deserve the same free and unfettered access to the coast that every New Zealand before us has had through Crown ownership of the foreshore and seabed. Knowing the political deceptions that were used to force through the law change, and that over time it will result in a gradual lowering of thresholds so that one day the whole coast will be privately owned by the tribal aristocracy, if I did nothing I would carry the guilt of inaction – of not doing everything possible to prevent this travesty.

I can’t do that.

So, if you are behind me, we will fight for a referendum and win. But you must let me know now if you are prepared to give your support. We will analyse the response and if it is enough, we will inform the Clerk of the House that we will proceed with the CIR. But if it is not, then we will withdraw our application and wonder about what could have been.

The decision is in your hands.