Foreshore ends with a whimper

Written By: - Date published: 10:58 am, June 15th, 2010 - 49 comments
Categories: foreshore and seabed, labour, Maori Issues, maori party, national - Tags:

If that is the foreshore and seabed debate effectively resolved we should all take a moment to celebrate. It will be good to have the issue behind us as a country and move on. It is John Key’s good fortune to be in office when the Maori Party finally ran out of steam on the issue, but for us lefties, them’s the breaks.

What was it all about? During this long debate there was lots of fuss about property rights and freehold title. But (according to Audrey Young in 2008) this was never a serious issue, even for the Maori Party:

The Court of Appeal allowed for the possibility of the Maori Land Court issuing freehold title in the foreshore and seabed. ie legal ownership, by dint, among other things, of Te Ture Whenua Maori Act 1993. No Government had ever intended this to be a possibility and Turia herself went to great lengths to say Maori did not want freehold title. This avenue was rightly shut down.

As the dust settles it’s starting to look like the fight was over little more than semantics and symbols, particularly the meaning of the phrase “customary title”. It is often claimed, even by Maori Party leaders, that the Foreshore and Seabed act took away the right to seek customary title in the courts:

Maori Party co-leaders Pita Sharples and Tariana Turia said they had fulfilled a long-standing promise to repeal the Foreshore and Seabed Act, which did not permit iwi to seek customary title through the courts.

Now, I am not a lawyer, but that claim appears to be almost pure semantics. The Act uses the language of “customary rights” instead of “customary title” (essentially the same thing – see here for “What are customary rights and a customary title?”). The Act (here or here, hat tip mickysavage) says:

33 High Court may find that a group held territorial customary rights

The High Court may, on the application of a group, or on the application of a person authorised by the court to represent the group, make a finding that the group (or any members of that group) would, but for the vesting of the full legal and beneficial ownership of the public foreshore and seabed in the Crown by section 13(1), have held territorial customary rights to a particular area of the public foreshore and seabed at common law.

If you’re feeling keen, trace from Clause 33 through to 36, 40 – 44. The Act lays out a mechanism for Maori to establish territorial customary rights, set up a Board to act as “guardians” and administer a “Foreshore and Seabed Reserve” the purpose of which is: “to acknowledge the exercise of kaitiakitanga by the applicant group over the specified area of the public foreshore and seabed in respect of which a finding is made by the High Court under section 33” (40(1)(a)). Or if you don’t feel like wading through legalise, just consider the outcome when Ngati Porou exercised their rights under the Act:

At Parliament yesterday, Attorney-General Michael Cullen signed the Government’s first foreshore and seabed deed of agreement with 48 hapu from the East Coast iwi Ngati Porou. … The agreement is intended to protect the customary rights of local iwi using coastal areas, while wider public access rights also remain intact. It means Maori in areas covered by the agreement will have a greater hand in environmental decisions made by the Government.

So while opponents claim that the Act “did not permit iwi to seek customary title through the courts”, what they fail to mention is that it does allow them to seek territorial customary rights through the courts, and these are effectively the same thing.

OK, so what changes as a result of the National / Maori party agreement? Not a lot. For a start, very few people are affected:

Mr Key has previously said he thought very few iwi would be able to meet the criteria for seeking customary title. He said today he still held that view.

Dr Sharples said that for those who had not been directly affected by the 2004 Act, nothing would change.

Despite all the sound and fury, the only people ever affected by the original court of appeal decision, the Foreshore and Seabed Act, or the National / Maori Party agreement to repeal the Act, are a very small number of iwi who meet some very strict criteria regarding continuous customary use.

And for this very small group of people – what exactly has changed? I’ll leave it to commentators better qualified than I to sort through the fine print, but the short answer seems to be – not a lot. Essentially a re-branding exercise, the foreshore to be administered by the Crown instead of owned by it. Iwi will still be able to seek customary rights through the courts, just as under the current Act. Which turns out – surprise! – to be just what they want:


Te Arawa leader Toby Curtis says there is a lot of hard work ahead for iwi if they want to make today’s deal on the Foreshore and Seabed Act reform work for them. The Maori Party is claiming victory after its meeting with the Prime Minister, alongside the Iwi Leaders Group, resulted in the government agreeing to go ahead with repealing of the Act. Its replacement will give the foreshore and seabed public domain status rather than being in Crown ownership, and Maori can go to court to pursue claims to customary ownership.

Mr Curtis says what iwi want is the sort of coastal management powers which Ngati Porou secured through negotiations with the previous government, but they might struggle politically to put up as strong a case as the East Coast tribe.

Got that campers? What iwi want is the sort of powers that Ngati Porou secured. Secured under the last government and the (soon to be repealed) Foreshore and Seabed Act (2004). Funny old world eh?

49 comments on “Foreshore ends with a whimper”

  1. Gosman 1

    So anyone willing to change their position on John Key’s political abilities yet?

    • Bright Red 1.1

      No-one’s ever denied that he’s good at tricking people and getting them to work against their own interests.

      Being good at politics isn’t the same as being good for the country.

      • Gosman 1.1.1

        Come on. Many of you here have taken the line that John Key has little idea and is out of his depth when it comes to political management. He seems to have blown that out of the water with how he has dealt with this issue.

        • Bright Red

          You’re confusing good governance with the ability to co-opt people.

          Or you’re saying being good at politics is praiseworthy no matter what ends you put that talent to. I can think of any number of good politicians who used their talents to achieve bad things. I say it’s the ends that count.

          • Gosman

            I’m not confusing anything here.

            John Key has successfully dealt with a very controversial subject facing the country, one which caused a major split in the Labour party the last time they attempted to deal with it.

            He did so in a manner that means the issue is not going to be hanging around like a bad political smell from now on by getting general agreement from the Maori party without alienating his more conservative political support base.

            In doing so he has also outmaneouvered the Labour party who are likely to be forced to support the agreement as well because not to do so risks opening up old wounds.

            This to me seems like a huge political AND practical win no matter what way you look at it.

            Perhaps you would like to suggest an alternative that Phil Goff and co could push instead?

            • r0b

              What’s the real difference between the current Act and what is proposed? How hard is it to put a fresh lick of paint on the status quo? All the hard work was done by Cullen and Labour, looks to me like all Key had to do was be there when the Maori Party ran out of fight.

              • Gosman

                Actually he had to hold his nerve and play hard ball, while offering just enough concessions for the Maori Party to claim they got what they wanted. Just a fews days ago people were saying how arogant the PM was to state that there was a take it or leave it approach. Seems to have worked though didn’t it?

                • r0b

                  Hold his nerve – why? What did he have to lose? Without an opposition whipping up Iwi/Kiwi frenzy on the issue, Key had the space to manoeuvre. And in the end he had nothing much to lose if the MP walked away – he could have postured tough to “middle NZ” and probably come out ahead on the detail.

                  Anyway – I know that Key is your best buddy hero, but I think this story is really about the MP running out of fight.

                  Later – got to run.

                  • Lanthanide

                    Also, National could have chosen to repeal the foreshore and seabed to replace it with something else, even if the MP didn’t support the new bill, as long as it was no worse than the existing act Natioanl would still come out “ahead” politically.

                  • burt

                    Bollox the Maori Party ran out of fight, they were allowed to discuss the plan and have some input into it rather than being told that they just need to bite down on it as it was passed under urgency.

                    • r0b

                      Say Burt – when did the Maori Party invent time machines?

                    • Pascal's bookie

                      “being told that they just need to bite down on it as it was passed under urgency.”

                      Instead they were told,

                      “Vote for this Clayton’s repeal or go in to next year and campaign on FSA FAIL, and all the other dead rats you’ve swallowed”

    • Bored 1.2

      Smart as a s**t house rat.

    • Bored 1.3

      Twice as cunning as a s**t house rat, just as untrustworthy.

    • burt 1.4

      It’s not fair, National made it work and Labour made a hash of it…. Lucky for NZ the dictatorship mentality and last cab off the rank offensive behaviour of Labour was kicked from office. That’s the hard to swallow bit for lovers of nanny state we know best supporters… The Maori Party wanted to be heard not shouted at.

      • r0b 1.4.1

        Just for the record Burt, the only party to cancel elections and install a dictatorship is National.

      • Draco T Bastard 1.4.2

        burt, you’re delusion is showing again.

        Labour: Passed a couple of laws that would save NZ a hell of a lot
        NACT: Passed laws that would cost NZ a hell of a lot while benefiting their rich mates and abolished democracy in Canterbury and Auckland.

        The dictatorship mentality belong, lock, stock and barrel, to the psychopathic political right. You happen to be one of their enablers.

  2. freedom 2

    the smiling assassin strikes again, now if we could only harvest his powers for good

  3. Craig Glen Eden 3

    More Bullshit rapped up in a Nice little parcel and then delivered by the MSM.

    So some Maori protested because they lost the right to “title” which according to Tariana ” it was never about ownership ” but the act they are repealing gives them customary title which is what they really want.
    The new legislation can also potentially give them the right to seek customary title and that’s success for the Maori Party.

    Let the celebrations begin, what a success what political skill, I am truly amazed.

    Imagine the trumpeting if they created jobs and helped children out of poverty or promoted Maori language and culture through the funding of a Maori TV station or increased real income to working families or increased access to early childhood education oh hell what a dream that would be, if only aye, if only a left wing party could achieve that!

    Heck what would we call a party who did that?……. Maybe Labour.

  4. Bored 4

    On a bigger picture thought maybe the Turiana Helen spat that got focused on the Foreshore and gave rise to the MP was merely a symptom of Maori economic expectations. As an observer of the Maori “Renaissance” of the last 40 years I cant help but see a trend towards the establishment of a corporate Maori elite that controls the claims process and consequent management of assets. What form this takes and whether or not it is a good thing is open to debate.

    All elites try to concentrate power / assets amongst as small and exclusive a circle as possible. Can we expect to see a visible separation of Maori interests as they compete for access to seabed resources etc? Can we see the MP in future as the “brown” Nats? Will racial solidarity trump economic inequality amongst Maori?

    • Craig Glen Eden 4.1

      Yes put simply this Maori party are not a left wing party, they are doing what any Tori party would do, so as I have said before despite the rhetoric lets judge them not by what they say but what they do and achieve not just for Maori but for all, because remember they are a party for all peoples.

      Time is marching on and what have they achieved for all …. nothing!

      • Tigger 4.1.1

        Yes, nothing for ordinary Maori of course. This whole problem, that they are there for the few and not the many, is enshrined in the MP’s doctrine where they seek to represent the collective. And the Maori ‘collective’ is ultimately controlled by…the iwi elite.

  5. Maggie 5

    With the current legislation we had certainty. We knew who owend the seabed and foreshore. We did.

    Soon, apparently, no-one will own it.

    With the current legislation we had certainty. We knew that no-one could claim any form of ownership over something we all owned as a nation.

    Soon, apparently, some people will be able to claim ownership rights over something no-one owns.

    What a fiasco. Far from being settled, we have only just begun to see the battle lines drawn.

    Key’s legacy to the nation will be uncertainty, anger and the memory of that simpering smirk he wears 24/7.

    • Gosman 5.1

      Excellent, so do you think the Labour Party will take up this great opportunity to provide a solution?

      • Craig Glen Eden 5.1.1

        Labour already created the solution but Tariana whip up the same old tired line that the crown was taking some thing from Maori. She has just settled for what was already in existence which proves my whole point, this was never about the seabed and foreshore use by Maori for Tariana,it was about the damage she could do to Helen and Labour. My question to Tariana is how has she helped the children, which is who she often claims to care about.

        • Gosman

          So do you think the Labour Party should reject this proposed solution and campaign to keep the current FSA as is?

          • Puddleglum

            Why should Labour campaign against a bill that, they claim, is no different in substance from the previous Act that they passed?

            To be consistent with their position, I suppose they could oppose repeal of the FSA but then support the current proposal while arguing that it was all a waste of Parliament’s time.

            • Gosman

              Excellent, I look forward to the Labour party doing that very sensible suggestion.

              Do you have confidence they will follow your proposed strategy?

              • Puddleglum

                Gosman, I have no insights into the thinking of the Labour Party leadership beyond those you would have. If, however, they followed the position I noted would be consistent with their public pronouncements they would be in a no-lose situation.

                First, they reinforce the point that there is no difference between the two pieces of legislation (by opposing the repeal and supporting the new legislation). Second, the Maori Party can never again claim Labour does not support Maori aspirations since they would have supported a piece of legislation the Maori Party claimed was justification for their formation and redressed the wrongs of the FSA. Third, that means there would no longer be a substantive reason for the Maori Party not to go with a Labour Party no longer led by Helen Clark, which applies significant pressure on the Maori Party given the continuing ‘party vote’ support for Labour amongst voters on the Maori roll.

                Fourth, they can maintain their standing in the eyes of those members of the electorate who had been intent on opposing Maori claims (since the FSA had the ‘thumbs up’ from NZ First and Labour’s position is that the new legislation is no change on that). Fifth, if the proverbial were to hit the fan on either the Maori side or the ‘mainstream’ side in the future, National would have great difficulty distancing itself while Labour could say it was all down to the ‘symbolic’ changes which raised expectations, fears, etc.

                I think it was probably more good luck than good management, but that’s not a bad rhetorical position to find your party in.

            • Bright Red

              Think that’s exactly what Labour will do.

              The ones who will have a hard time backing this deal are the Greens because, unlike the Maori Party, they don’t have to pretend everything is ok now and they can see nothing has changed.

              In fact, the Greens might see some votes in this.

  6. clandestino 6

    What are ‘customary rights’ anyway? Does this mean Maori can take a few more Paua than a Pakeha or Samoan or something? This whole thing leaves me confused. For example, if an iwi has rights of veto over some development like a hotel or aquaculture project that would provide their people a job, why would they ever exercise that veto? Seems like this has been a massive waste of money over petty semantics. How the hell do you price 150 years of paua collection, or crays or whatever which people were doing anyway? No wonder we’re in so much debt.

    • Name 6.1

      “if an iwi has rights of veto over some development like a hotel or aquaculture project that would provide their people a job, why would they ever exercise that veto?”

      When we applied to create our mussel farm ten years ago (under the RMA) we were REQUIRED by the local authority to ‘consult’ three different Iwi each of which claimed some sort of interest in the sea-bed beneath 100ft of water we were going to be ‘occupying’. In order to get their ‘opinion’ we had to cough up sums from $50 to $500 for ‘administrative charges’ with the implication that if we didn’t pay the opinion would be against our proposal. There’s a good chance we would have gained the consent anyway, but when you’re talking about a $1.5 million investment, a $1,000 bribe is small beer.

      If Iwi ever obtained powers of veto the price of such bribes would sky-rocket, and you’d probably find at least three different Iwi authorities all claiming the right the exercise it, and pocket the proceeds.

      • clandestino 6.1.1

        My thoughts exactly. A veto would become a for-sale sign. I see an industry of Iwi ‘consultants’ popping up overnight. Ah well, us bleeding hearts asked for it. Good work on the mussel farm btw, enjoying your entrepreneurialism as we type.

  7. deemac 7

    there have already been MP apologists on RadioNZ stating that public ownership is quite distinct from Crown ownership! All smoke and mirrors – but that’s what much of politics boils down to usually. If the MP can convince enough of their supporters that this is a victory, the facts on the ground don’t really matter. The fact that ordinary Maori are not an inch better off is just the way the cookie crumbles…

  8. ianmac 8

    clandestino: “if an iwi has rights of veto over some development like a hotel or aquaculture project”
    I wonder if they will get not only a veto but also the right to build mussel farms where other groups couldn’t. Or the right to charge sea users for moorings or jetties or the right to veto same.
    It would appear to appease the Maori but what effect it will have on others remains to be seen.

    • clandestino 8.1

      Yes and I would include in ‘the others’ regular Maori who won’t gain anything. Classic case of post-colonial guilt gone mad and the only winners are the lawyers and the perceived ‘fighters’ (see: troughers) from iwi.

  9. gobsmacked 9

    Retrospective rationalisation is the essence of power politics.

    “I have lost. Therefore, I must accept what has been offered. Therefore, I accept it. Having accepted it, therefore it is good. Therefore, it is what I came into politics to achieve. Therefore … I have won!”

    Of course a politician has to fake it. Fortunately, we don’t have to believe it.

  10. coolas 10

    I overheard the conversation

    “Look Pita, Turie, this is how it is.
    Take it or leave it.
    But before you say anythink consider this. No agreement and you’re outa here. We actually don’t need you actually. Agree and you get to keep the portfolios and everythink. We can make it sweet as for both of us. This is win win guys. Lets give PR a decent lead time. C’on.”

  11. Fred 11

    All this talk on this bollox when the Emissions Trading Scam starts in 2 weeks and not a whisper from the MSM

  12. Draco T Bastard 12

    So, what NACT+MP have done is basically cost us a lot of time and money to achieve nothing whatsoever.

    Colour me surprised.

    • Blue 12.1

      Rebranding exercises are inevitably expensive and involve lengthy consultation.

      Here’s hoping the new logo legislation lasts more than a few years.

      • f_t 12.1.1

        Weren’t centre swing-voters happy with the old legislation? Key looks to have fooled the Maori Party but if his illusion is too good voters might believe the hype that removing Crown ownership threatens equal access.

  13. Chess Player 13

    Why is there no blog here about Chris Carter having a hissy fit and going off to sulk?

    [lprent: Are you looking to get a ban? Read the section in the About on the topic of telling us what we should do. Authors write on what they want, you have zero say in that. If you want to raise a topic, then that is what Open Mike is for – but you don’t frame it as even remotely suggesting what the authors write about.

    Fuck it – I suspect that you are too stupid to learn from a mild reminder – have a one week ban as a less gentle reminder.

    Update: comments related to this ban have been moved into OpenMike. I’m going to get irritated if any more blatantly off-topic comments wind up here. ]

  14. barry 14

    Which brings us back to the question of whom to grant rights to establish fish and shellfish farms.

    National is keen to open up the seas to more aquaculture, and the questions about ownership have to be resolved before any more can be allocated. The original court case was brought after an iwi group was refused permission by the local council. Does this decision actually settle things?

  15. Jenny 15

    Tired of the party political broadcasts?

    Forget the spinmeisters, for expert unbiased opinion on the Foreshore & Seabed agreement without the partizan spin.

    Professor Bradford Morse gives an objective overview of the F&S deal on Tuesday’s Radio New Zealand nine to noon show.

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