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Some cold day in hell

Written By: - Date published: 1:10 pm, March 5th, 2009 - 30 comments
Categories: act, maori party, national - Tags: , , ,

key-in-tieObservant msm spectators may have noticed this gem from TV1 news last night:

‘A radical shake-up of the controversial Seabed and Foreshore Act is on the cards it could result in new powers for Maori to test their rights in court, but John Key is vowing no New Zealander will lose their access to the beach’.

After the Section 59 Amendment, the Seabed and Foreshore Act has to be one of the most poorly reported pieces of legislation in our recent political history. TVNZ and TV3 continued that fine tradition of keeping Kiwis in the dark by utterly failing to even mention what the Act does or the broader implications of repealing it. So people could be forgiven for not realizing that the Seabed and Foreshore Act is about a little bit more than Maori getting a chance to meekly ‘test their rights in court‘ and absolutely nothing to do with John’s lame attempt at misdirection by suggesting it’s just about access to the beach for cricket and a barbie. (John seems to have unwittingly regurgitated National’s previous “Iwi/Kiwi” spin on the Act.)

Why many Maori got so annoyed with the Act was because it closed off any future possibility for claims, either within or beyond the Treaty settlement process, on the Seabed and Foreshore and all that’s in it. That includes claims on extraction rights for fish and minerals worth many billions over many years.

Yeah I can totally see National opening that door.

To its credit National has built up quite a bit of expectation amongst some Maori expectations that could quickly turn sour if it becomes apparent National aren’t really so sincere about letting their review of the Act result in opening up new claims. Not surprisingly ACT are all for the review because they know this can only end in tears for relations between National and the Maori Party, ultimately leaving the ACT tail in a very good position to wag the National dog.

So is a ‘radical shake-up” really “on the cards”? Well not for the Act, no – National aren’t likely to change any aspect of the Act that has significant commercial implications. Coalition relations on the other hand might well be in for a few changes.

30 comments on “Some cold day in hell ”

  1. Tane 1

    I’m not so sure I agree. National in recent times has shown itself to be quite willing to co-opt rather than reject the Maori capitalist class and sees iwi businesses purely as businesses. After seeing the behaviour of Sealord I can’t say I disagree with them.

    ACT’s opposition to the F&S Act, based on private property rights, is a good example of this. They saw earlier than the iwi/kiwi racists in National that rather than fighting Maori the better option was to co-opt the Maori elite into an electoral ally.

    The Foreshore and Seabed will mean little in reality to most Maori – they’ll be harder hit by reductions in workplace rights, cuts to public services and high levels of unemployment. But for the Maori Party it is crucial.

    Remember, the Maori Party sold its soul to get the F&S Act repealed. They’ve voted to divert money from the poor to the wealthy with National’s tax cuts and served as a pliant PR prop for National’s right-wing agenda.

    They’ve pinned everything on this, and if they don’t succeed then that’s their credibility the drain, as well as their electoral chances in 2011.

    • MikeE 1.1

      Tane gets it right for once!

      “ACT’s opposition to the F&S Act, based on private property rights, is a good example of this. They saw earlier than the iwi/kiwi racists in National that rather than fighting Maori the better option was to co-opt the Maori elite into an electoral ally.”

      Though I’d remove the word “elite”

  2. Ianmac 2

    Actually the Seabed and Foreshore is that area below High tide isn’t it? Not a very good place for barbies and cricket.
    One of the changes if repealed would be the claim/fees payable on the use of the seabed for mooring or anchoring boats, or gathering shellfish or crayfish or…..

    • SjS 2.1

      Yeah you’re right, it is the ‘wet’ bit of the beach and the sea floor, which makes anyone saying that the F&S Act is about beach access, beach cricket and barbies a complete idiot.

  3. Lew 3

    Sprout, I don’t agree, either, but for different reasons to Tane.

    As I observed in a post at KP, it’s a very strong panel of people who are no fools as far as the issues in play go, and they have a very open brief. The main catch is whether the government will follow through on their recommendations.

    Tane, you say the F&S will mean little `in reality’ to most Māori – I think what you mean by `in reality’ is `in economic terms’. Other things are important, too.


    • Tane 3.1

      Lew, yes, that’s what I mean. I understand the non-economic values at play, but I’m talking bread and butter.

      Captcha: Standard victory

  4. Tigger 4

    Look at the comments on right wing blogs about this – Key is treading a thin line trying to keep everyone happy here – t’will be an interesting debate if nothing else! I can see Key tying himself in knots trying to keep Maori and the hard right vaguely happy…

  5. I have always found this debate frustrating and the actual contents of the legislation was ignored by most of the commentators. In short the Act did not do what was claimed.

    Following are some provisions of the Act:

    3 Object
    The object of this Act is to preserve the public foreshore and seabed in perpetuity as the common heritage of all New Zealanders in a way that enables the protection by the Crown of the public foreshore and seabed on behalf of all the people of New Zealand, including the protection of the association of whanau, hapu, and iwi with areas of the public foreshore and seabed.

    4 Purposes
    The Act gives effect to the object stated in section 3 by—
    (a) vesting the full legal and beneficial ownership of the public foreshore and seabed in the Crown; and
    (b) providing for the recognition and protection of ongoing customary rights to undertake or engage in activities, uses, or practices in areas of the public foreshore and
    seabed; and
    (c) enabling applications to be made to the High Court to investigate the full extent of the rights that may have been held at common law, and, if those rights are not able to be fully expressed as a result of this Act, enabling a successful applicant group—
    (i) to participate in the administration of a foreshore and seabed reserve; or
    (ii) to enter into formal discussions on redress; and
    (d) providing for general rights of public access and recreation in, on, over, and across the public foreshore and seabed and general rights of navigation within the foreshore
    and seabed.

    The mechanism is set out in sections 33 and 35 of the Act.

    So the right to go to Court was there, Maori could go to Court to seek that the rights are recognised and there was a mechanism for seeking compensation. The concern was that a title could issue for a right, and once this happens then the right can be alienated and public access taken away.

    I am not sure Sprout about if the Act takes away the rights to minerals. Section 11 defines a customary rights claim as “any claim in respect of the public foreshore and seabed that is based on, or relies on, customary rights, customary title, aboriginal rights, aboriginal title, the fiduciary duty of the Crown, or any rights, titles, or duties of a similar nature, whether arising before, on, or after the commencement of this section and whether or not the claim is based on, or relies on, any 1 or more of the following:
    (a) a rule, principle, or practice of the common law or equity:
    (b) the Treaty of Waitangi:
    (c) the existence of a trust:
    (d) an obligation of any kind.”

    It is pretty wide. The rights to extract minerals may no longer be there but there is the right to seek recognition of such a right and to negotiate for compensation.

    I await with baited breath the further development of this issue …

  6. Tane 6

    I might be wrong, but I suspect the activist right will suck it up. The message from on high is that Maori, and the Maori Party, are no longer the ‘other’. How the rest of NZ will react, I can’t quite be sure.

  7. Graeme 7

    it closed off any future possibility for claims, either within or beyond the Treaty settlement process, on the Seabed and Foreshore and all that’s in it. That includes claims on extraction rights for fish and minerals worth many billions over many years.

    Other New Zealanders with property in fee simple in some land don’t have mineral or mining rights, so I’m not sure why one would think Maori gaining fee simple property in the foreshore or seabed would grant them such rights.

    After the Section 59 Amendment, the Seabed and Foreshore Act has to be one of the most poorly reported pieces of legislation in our recent political history.

    Section 59 was reasonably accurately described until the last-minute amendment, but I’d add the “three-strikes” law to the list – I have not seen a single piece of reporting which accurately reflects its content.

    Actually the Seabed and Foreshore is that area below High tide isn’t it?

    Yeah. The foreshore is the bit between high tide and low tide, and the seabed is the bit that’s always covered by water.

    • LawGeek 7.1

      But Graeme, they’re not claiming fee simple title. They’re claiming that native title was never extinguished to the foreshore and seabed. Don’t know what impact that has on mineral rights (none, I suspect), but fee simple title isn’t at issue. Didn’t you pay attention to Boasty :P?

  8. Will this law cover beachfront holiday homes in Hawaii?

    • sweeetdisorder 8.1

      No. Hawaii is not in New Zealand nor a New Zealand territory. A simple glance at an atlas would have provided you with the answer.

      You must hate it when what you thought was a question filled of wit and wonder exposes your lack of intellect and your inherent envy at those who have made some measure of success in their lives.

  9. I dont think no kiwi will ever lose beach access, can ya manage a handful of people trying to stop 5000 or six thousand people going to the beach? It just wont happen.

    • Pascal's bookie 9.1

      “I dont think no kiwi will ever lose beach access..”

      I’m not unconvinced that I won’t never disagree… 😉

    • Matthew Pilott 9.2

      Try driving through what used to be SH38 when the locals aren’t happy.

  10. LawGeek 10

    Sprout, is any of this more than reflexive anti-Nat ranting (I ask this as very definitely not a Nat voter)? The panel they’ve appointed, as Lew mentions, is very strong. Richard Boast taught me property law at law school, at the time that the Court of Appeal was considering the Ngati Apa case. He’s been arguing for Maori to be able to make claims about the foreshore and seabed for a long time, and has written a lot of well-regarded stuff about how the old precedent (90 mile beach) was rubbish. And the other two panel members are Eddie Durie and Hana O’Regan. You really think they’re going to be National Party shills? Come on, get serious.

    I’ve read every word of the Ngati Apa decision. I’ve had to teach it (as a tutor). I am very familiar about what it says, and Labour’s out and out lies about the effect of the decision, and why the Foreshore and Seabed Act was necessary is the main reason (Michael Cullen being the worst offender) I was unable to vote labour at the last 2 elections. It’s one of the most disgraceful pieces of legislation passed in the last decade, and if anyone wants to get rid of it, Nats, Act, Maori Party, Greens, all power to them.

    • Ianmac 10.1

      Lawgeek: I read your 2:54 post with great interest. I understand your strong wish for repeal but couldn’t quite see what the problem is, and what a repeal would do to fix it.

      • LawGeek 10.1.1

        Ianmac, essentially all Ngati Apa said was that Maori could actually go to the Maori Land Court and attempt to prove that they still had native title to various parts of the foreshore and seabed. Proving native title is very difficult, involving showing an unbroken history of customary usage of the foreshore/seabed since pre-colonial times. This is virtually impossible in most cases, as most maori sold/were hoodwinked out of/had confiscated their rights to that land, meaning that for obvious reasons they haven’t been using it continuously. Also, the effect of the 90 mile beach decision was that for 60 years, Maori were (wrongly) told that they didn’t have those rights.

        The end result of all of this is that the area of foreshore/seabed over which a claim could be proved in the Maori Land Court is very small. Labour, and especially Cullen, chose to buy into the racist Brash/Orewa meme of the time, and paint this as the Maaaaries trying to stop every man and his dog going to the beach. This was simply false. All that Ngati Apa mean was that Maori would be allowed, as we all are, to go to court and say “hey, I think I have a right to this property, what do you think, Court?” As I’ve outlined above, the chances for success were low. But Maori were denied even this small chance to prove their rights by Labour’s cynical political manouvering. THIS is why I think the foreshore and seabed act is a nasty, nasty piece of work. Repeal it, and let the substance of the arguments be heard.

        • Pascal's bookie


          I agree with much of the sentiment and principle here. I hated that f’ing law, and am either a hater, or a wrecker. Possibly both.

          But if I might play devil’s advocate for the LP here, I’d say that what you (not wrongly) call cynicism, was the most likely result of the larger political situation.

          It seems to me that if Labour had not done something very similar to what they did, then National would have run on the F&S issue, and quite possibly won the election. Their policy and rhetoric at the time was much worse than Labour’s.

          I’m not saying that Labour was acting in Maori interests. Rather that Labour was acting in Labour’s interest, which is to say, in the interests of Labour’s voters as a whole. If the calculation was something like, “If we do this, we lose Maori support as the price for keeping National out of government” then it is certainly cynicism, but it’s not only cynicism.

          I find it really interesting that so many of the successful minor parties under MMP have been LP breakaways. From National I can only really think of NZ First.

          Maybe, because the left under FFP was a coalition forced under one banner for strategic reasons, this breakup was inevitable as under MMP tensions had an outlet valve in the form of starting more ‘pure’ parties. Parties that will often be in strategic (or even ideological), conflict over particular issues will deal with them as they see best in terms of their supporters interests

          Which isn’t much of a defence I’ll admit.
          But there were much worse alternatives.

          • LawGeek

            I get your point and mostly agree about the political consequences. I still think they should have sold this without quite as many outright lies from Cullen, but that’s done now. What annoyed me, really, is the tone Sprout took to the issue – this is an evil cynical plot by National to… do I’m not quite sure what. No Labour supporter has the moral highground to be judgmental about a) the Act or b) political cynicism on this issue. Given the makeup of the panel, it really looks like National’s going to recommend repeal. Good on them (quite probably the last time I’ll say that about a National government for some time).

  11. mike 11

    You guys just don’t get it.

    Labour were on a hiding to nothing – if they allowed the foreshore to be contestable they knew they would be toast by playing right into the hands of the then iwi/kiwi Nat theme.

    National can now play the pragmatic card because they are not labour and don’t have the baggage of 9 years power.

    ..And the media will soak it all up and praise the new centre right for there fresh approach. God Keys good

    • LawGeek 11.1

      Mike – does that make it right? Put aside the political manouevering for a second. Is it the right thing to do to have the Government deny a particular group access to the Courts, and then lie about why they’re doing it? God knows I preferred a Labour government to a Brash one, but is this really the way we wanted to go about getting it? And do we really want to criticise the repeal of a blatantly unjust law?

      • mike 11.1.1

        No argument here – I’m a hard out tory just pointing out that all labour (and National ) were interested in was “political manouevering ”

        Most centre righties don’t give a shit about Maori having a say in the seabed & foreshore under the Nats – it was on top of all that PC “closing the gaps” type bullshit that labour introduced that woke the monster up.

      • Akldnut 11.1.2

        LawGeek IMHO I think Mikes right, Labour were on a hiding to nothing. If they had gone one way the European voters would have castrated them, if they went the other Maori would feel (some did and still do) another raupatu was happening but they tried to take a centrist path and appease both sides.
        Tell Maori they still have their customary rights and tell pakeha they still have the rights to access public beaches.

        It Led to the formation of the MP and splintered the labour vote.
        Being of maori descent I don’t believe that our people actually agree with what the MP have done or whether it has enhanced the mana of our people.

        Captcha – blade inches – feels like thats how far its gone in recently

  12. brick 12

    National is building a strong foundation.

  13. Lew 13

    In terms of political strategy, Mike is right – Labour were caught between the devil of Don Brash and the deep blue sea. Nevertheless, I believe there were options available to Labour which did not involve them circumscribing due process in such an imperious and paternalistic manner. Appealing the case was tricky, since the presiding judge of the Supreme Court (Sian Elias) was author of the Court of Appeal judgement they would have been appealing, and the Privy Council had gone west by then; nevertheless my non-legal brain believes that other judges of the Supreme COurt could have heard the case, and the primary motivation for Labour not taking this course was certainty they would lose. Taking a proactive stance with claimant groups would have been the best strategy, in my opinion – enabling them to negotiate customary rights and such, and making the process easy as long as they stayed within certain bounds. I think iwi of the time would have been amenable to this; they’ve not historically been unreasonable, and negotiation via the Waitangi Tribunal and other such means has been extremely effective at constraining the magnitude of tangata whenau redress.

    Fundamentally, though, in the long term I think Labour’s actions were a blessing in disguise. We now have the māori party, a cogent Māori political bloc within government and being treated as if their policy positions – or some of them, at least – actually matter. Most importantly, Māori are having to stand on their own two feet in politics, developing and implementing their own philosophical and policy agenda, and being given leave by their electorate to exercise a fair degree of autonomy. I’m not a fan of National, but John Key is at least treating with the māori party as if they represent an electorate who know their own minds – so far from the paternalism shown beforehand. Yes – the decision has hurt Labour, but it looks like it will be good for Māori in the medium term, as a bidding war for their votes emerges toward 2011. Labour will bounce back.

    More importantly than party politics, reconciliation between Pākehā and Māori in Aotearoa can only be a good thing. National is so far continuing that process, and that’s something they couldn’t have done with a Māori electorate wedded to the Labour party.


  14. ak 14

    Wish you were right Lew: unfortunately, Mike’s comments reveal the true picture.

    As he notes, the party that coldly and deliberately picked the scab (and thus directly elicited F&S) with Orewa One “doesn’t give a shit” about that “closing the gaps – type bullshit”.

    And never has. Wee Johnny courted the MP solely to thwart the advantage of the electorally-toxic ACT – and spun it as “inclusiveness” for the personal PR hit he constantly craves above all else.

    That same festering pustule that erupted in 2005 is alive and well: ready to be ripped open at any time by something as paltry as the letter aitch. A smiley-faced band-aid on a seething culture of Mikes is but a temporary, surreal farce.

    The only positive development is the establishment of the MP: but they need to muscle up. Their window of opportunity is small, and further dithering near the infection site will be fatal: if they can’t close some gaps (or at least retain Labour’s gains in maori health, say) in the next two years, they’re toast. With “inequality” now taboo, the prognosis is shaky at this point.

  15. George.com 15

    Strikes me there are 2 issues being discussed here: what is good or NZ and how this will play out on the National party.

    For NZ, what will be good is for the FS&SB ‘issue’ to be resolved constructively for the whole country that will allow some of the wounds to start to heal. resolving and resolving it well is of benefit to us all.

    For National, they don’t deserve to get off lightly. Don Brash and National set this issue up to be divisive and damaging. Yes, Labour could have handled it better and secured a better outcome than the FS&SB. I’d have advocated a negotiated settlement is possible. However, Brash and National used the debate in a cynical manner for political reasons and desperation to secure power. Labour reacted (fairly badly at times) to that pressure. They copped it with the formation of the Maori Party. Karma dictates that National cop the flack from the redneck and conservative right that Brash so cynically courted.

    An outcome thats good for NZ is a little different from an outcome the National Party deserve. Unity and peaceful relations versus chickens coming home to roost.

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