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Maori Party going to cave?

Written By: - Date published: 3:22 pm, June 14th, 2010 - 50 comments
Categories: foreshore and seabed, maori party, national - Tags:

The signals are that the Maori Party is going to cave on the foreshore and seabed. National has offered a symbolic repeal of the Foreshore and Seabed Act while leaving the actual law essentially unchanged. At hui throughout the country, Maori have made it clear they won’t accept symbolism, they want real change. But Pita Sharples’ comment today that “Repeal was the “No 1 thing”” and Te Ururoa Flavell’s remark that “It would be disastrous if we weren’t aligned with the Iwi Leadership Group, however, we are a political movement and we have to make decisions in light of the information we have in front of us” suggest they are going to sacrifice their objectives to stay in government.

Of course, Key will chuck in a couple of minor concessions, window dressing that the Maori Party will claim as major wins. But make no mistake, if the Maori Party buys the symbolic deal that National is offering it will have abandoned the goal it was established to fight for. There will be big questions, then, over what the Maori Party is doing voting for a rightwing government to pass policies that are anathema to their values.

[Updated – It seems an agreement of some kind has been reached.]

[Updated 2: Ahh – the kind of agreement you reach when you don’t have an agreement:

It [the F&S] will instead become a public space though neither party has agreed what that should be called. Previously the government had proposed calling it “public domain”.

Still some miles to go on this road!]

50 comments on “Maori Party going to cave? ”

  1. ianmac 1

    It was being said on Maori TV that some believed that it would be one step at a time. Public ownership would be OK for now and would be a platform for future negotiations in perhaps another Government – meaning post 2011 Election.

    • Bright Red 1.1

      don’t they realise that National has cast this as a full and final deal, and Labour will stick to that too?

      Any deal that the Maori Party signs on to now will have permanent legitimacy and the Maori Party won’t be able to come back later and demand something else. It’s like the Treaty settlements or the Superannuation Accord.

      • Lew 1.1.1

        Yes. Unless they can get something to the contrary written into the bill, which they can’t … and if they try to leave it to the committee stage it’ll just get railroaded through by a gleeful ACT.

        This is classic opportunity cost: deal, or no deal, no do-overs. At least by saying “no deal” the abhorrent status quo is preserved with a chance that it might be revised in the future, rather than a similarly abhorrent status quo being entrenched for good.

        Unless there’s some major loophole to be exploited, they need to call it off.

        L

  2. tc 2

    “if the Maori Party buys the symbolic deal that National is offering it will have abandoned the goal it was established to fight for.. ”

    I thought they achieved that awhile back passing ETS/ACC/Budget 2010 and the all the other death via 100 cuts and dodgy stuff passed under urgency in the name of ‘being a player’ more like you got played MP……masterful handling by the nats, they get everything they want whilst maori get diddly.

    Break out the rhetoric here comes the rogering and you can bet the nats will be looking forward to them staying in gov’t with them….who wouldn’t it’s cost them F all aside from taxpayer limos etc.

  3. Lew 3

    Woah, and there it is — they’ve agreed.

    L

  4. kaiserm 4

    well the simple fact is that Labour won’t change its stride and National is only offering this…they have a choice to make some gain or none and pout

  5. Bright Red 5

    Looks like you called it, Eddie.

    They’re not going to call it ‘public domain’. They’ll invent another name, which will give the Maori Party cover to claim they’ve won a real change.

  6. Santi 6

    Why are you surprised? Undoubtly, the Maori Party had a price and Key and National are paying it.
    Expect more race-based legislation.

  7. So the FSA will be repealed and the area renamed. There will need to be some sort of statutory protection of the right of access. I wonder if the Crown will allow applications for title for the FSA and if so on what basis.

    The devil has always been in the detail on this issue and no doubt will continue to be.

    • Farrar has the details (or more of them).

      He says:

      * The 2004 Act will be repealed and replaced with new legislation
      * The foreshore and seabed area currently vested in Crown ownership will be replaced by a public space which is incapable of being owned in a fee simple sense (ie can never be sold)
      * Existing Maori and Pakeha private titles would continue unaffected
      * Customary title and customary rights will be recognised through access to justice in a new High Court process or through direct negotiations with the Crown
      * The test for customary rights and for customary title under a replacement regime will be the same as in the consultation document, and reflects the position the Govt thinks the Courts would have come to if the previous government had not imposed the Foreshore and Seabed Act 2004

      A chocolate fish to the first person who explains why this is different to the FSA apart from the changing of the name of the “public space”.

      • Blue 7.1.1

        Because this time the Maori Party have agreed to it and can have a joint press conference with the Government talking up how great it is?

      • ak 7.1.2

        It’s different because National, who objected to the F&S as being too generous to Maori, has now agreed to something that is even more generous (according to the MP). Progression by own petard. Time for Labour to push “one shore for all” and reclaim the left.
        Cadbury kina, ta.

      • Bill 7.1.3

        The answer might be in this strangely informative piece here which makes mention of

        … a document written by technical adviser Sacha McMeeking, who is also Ngai Tahu’s manager of strategy and influence.

        It floats a model under which the foreshore and seabed would be treated as a “shared” space, with any new law silent on the issue of ownership.

        But iwi and hapu would also have the right to assert title in the courts, according to a new test based on Maori custom and traditions and the Declaration on the Rights of Indigenous Peoples, which would include the power to review and injunct decisions over the foreshore and seabed, and impose rahui (a ban on access).

        • Lanthanide 7.1.3.1

          Key: Nah, the Declaration on the Rights of Indigenous Peoples is purely aspirational, it won’t have any impact in law at all.

          2 months later…

  8. gobsmacked 8

    Maori Party: “A bridge too far!”

    Key: “I’m crossing the bridge. See ya later.”

    Maori Party co-leaders: “Wait for us!” (run across bridge)

    Maori Party supporters: “We’re staying here. Burn the bridge.”

  9. Santi 9

    The truth of the matter is Key has Maori party leaders in his pocket. As ministers they are enjoying the baubles of office and have got used to a luxurious lifestyle.

    They had a price which Key has paid.

  10. gobsmacked 10

    If anybody thinks this is done and dusted, they might want to read this:

    http://www.scoop.co.nz/stories/PO1006/S00151.htm

    Hardly a ringing endorsement.

  11. Bill 11

    Helps alleviate a bit of the pressure for housing though, dunnit?

  12. coolas 12

    With customary title/rights able to be determined in the High Court the Maori Party have achieved a radical change from the old legislation. Well done.

    With Court rulings, and the passage of time, it will be interesting to see how the ownership issue evolves.

    A pan Iwi judgement from the High Court would be interesting.

    • With customary title/rights able to be determined in the High Court the Maori Party have achieved a radical change from the old legislation. Well done

      Oh no they havn’t.

      They already had this right, despite impressions to the contrary. Check out the following section of the FSA:

      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.

      The proposed determination by the Court looks like it will be the same as under the FSA. The FS will still be inalienable but existing “rights” can be recognised.

      The MP has been sold a pup.

      • coolas 12.1.1

        I stand corrected. Thanks. I was under the impression access to the Courts was denied at present. So what’s the fuss?

        • mickysavage 12.1.1.1

          A very common belief Coolas. The original provision does restrict things in that Maori do not get the right but a declaration that they should have had the right and the ability to then seek compensation but nothing that I have seen of the deal appears to change this.

          There is a change of language but the same result IMHO.

          The other thing the FSA never did was affect Treaty of Waitangi agreements or negotiations over claims. Ngati Porou for instance has had a claim to FS recognised in its settlement.

          Section 101 of the dreaded FSA said:

          101 Status of existing and future agreements between Crown and claimant groups
          (1) To avoid doubt, nothing in this Act—
          (a) limits or otherwise affects the validity of an agreement entered into between the Crown and a claimant group to settle an historical Treaty of Waitangi claim; or
          (b) fetters the ability of the Crown to enter into any agreement with a claimant group in the future to settle an historical Treaty of Waitangi claim.

        • Alexandra 12.1.1.2

          Coolas, the FSA denied the right to Maori to take a claim for customary ownership to the Maori Land Court as per Court of Appeal Ngati Apa decision, including claims lodged prior to inactment.

      • toad 12.1.2

        I don’t agree Micky. Why can’t you admit Labour got this completely wrong?

        Section 33 of the FSA provides for nothing more than an empty declaration as to customary rights, and no real property rights at all, despite the likelihood of legitimate claims to property rights in certain rohe.

        Not that I’m yet convinced the National Party/Maori Party deal will do much more – but I do await the detail to see if it does.

        • mickysavage 12.1.2.1

          I think that the current deal will do exactly the same toad.

          The argument keeps shifting though. People kept saying that the Labour Government stopped maori from going to Court. It didn’t as section 33 clearly states.

          Your suggestion that there was a right but it was inadequate is worthy of a debate that has not happened yet. There are a number of provisions where the Act tries to give steel to an established right. For instance a High Court Judge had to approve any agreement that the parties reached concerning redress for breach of that right.

          The point that I am trying to make is that the reality was much more complex than the slogans. And that things fundamentally not be changing.

          • mickysavage 12.1.2.1.1

            Oops I meant to say

            “And that things fundamentally may not be changing.”

            What happened to the “may”?

          • Alexandra 12.1.2.1.2

            Its not good enough to cite a section in isolation to the rest of the act. Schedule 1 of the F&S Act sets requires extremely high burden proof on the part of maori, which does not take into account the historical alienation of maori from land in front of, and around the Foreshore and Seabed. The Act makes it near on impossible for maori to succeed in court. I think as do many maori that they had a far greater chance of success following the Ngati Apa case which held that the maori land court had the jurisdication to hear claims for the foreshore and Seabed as well as historical grievances. The right to go to the maori land court was overturned by the F&S Act.
            A lot of people look to Ngati Porou’s achievement as a measure of the F&S Act delivering for Maori. Im less optimistic. The victory arose out of Micheal Cullen being the negotiator and a real willingness to make the Act be seen to be delivering for Maori, rather than the implementation of any legal principle. Its anyones guess how this government will respond given the recent Tuhoe experience. That is why in my view the jurisdiction of the court is so very important, long term.
            I do agree though that it looks like the proposal agreed to today is just hot air and little substance if the right to court is restricted to the high court and the hurdles to achieving customary title remain.

  13. Ron 13

    Gutless, lying pricks lying down with lying, fickle, manipulative pricks. I really hope tgis is the end of them. If it isn’t the screw ups that will happen as a result of Whanau Ora will be.
    captcha – differences

  14. Anne 14

    Did anyone really think that the Maori Party WOULDN’T sign up to whatever the Nact Govt. proposed? Just a little semantic word changing here and there John… enough to make it look like we’ve done a good deal. That’s all we’re asking for?

    Tariana Turia would sell her soul to remain in bed with John Key – politically speaking of course.

  15. michael 15

    Will the Maori Party be the new Tight Five? I hope so, because Maori voters dealt to the Tight Five.

  16. Steve 16

    “A chocolate fish to the first person who explains why this is different to the FSA apart from the changing of the name of the “public space’

    Who gave you the rights to gather/supply chocolate fish Mickey Savage?

  17. kaiserm 17

    well Steve, quite simply the crown doesn’t own the land, when something is within the public domain it takes on a weird air about it – effectively govt laws apply but at the same time, land law is very different – it effectively is a legal term change more than an actual change- we all can still use it as before but now Maori can build waka houses or fishing wharves as customary right within the court’s acceptance of customary title

  18. Alexandra 18

    Im baffled about some of the rhetoric here. Perhaps a decent analysis of the proposal would be very useful. My understanding is that the Maori party was established to fight for the repeal the FSA and the return of the right to go to court to establish customary title as per Ngati Apa case. Sure iwi took the opportunity to attempt to negotiate title but just because the most unlikely result didnt happen, doesnt mean that the MP or iwi have failed entirely on the issue. The Iwi leaders rejection of the proposal was nothing more than an attempt at givng the tree another shake, not a rebuttal of the MP’s intention to sign up to it.

    • Zaphod Beeblebrox 18.1

      We’ve already established they have the right to customary title under the FSA. So what is it exactly that they are getting?

      • Lew 18.1.1

        There are two levels (customary rights and customary title) on offer under this proposal (which is good, because it means those who can’t make a complete claim for title may still gain some rights) and the barriers to entry and mechanisms for gaining rights are much improved.

        But still, it ain’t much of a gain.

        L

  19. hellonearthis 19

    I don’t know why the Maori party are even talking to the government over this issue, it’s supposed to be negotiations with the Iwi as reported on radionz by Mark Solomon
    http://podcast.radionz.co.nz/mnr/mnr-20100609-0610-PM_says_take_it_or_leave_it_over_foreshore_and_seabed-048.mp3

  20. Anne 20

    @ Alexandra.
    Read mickeysavage @ 5:05pm, 6:13pm, 6:48pm, and 6:55pm. Taken together they make for a reasonable analysis. I believe mickysavage is a lawyer by profession, so he would know what he is talking about.

    • Alexandra 20.1

      Thanks Anne, but I think the analysis of the F & S Act is simplistic and therefore misleading. I havent had the opportunity to examine the proposal yet, so mickey may very well be right on that score. You might want to see my comment above.

  21. burt 21

    So what’s the outrage here; that National and the Maori Party have an agreement to go forward rather than being told they are the last cab off the rank.

    If as mickysavage asserts nothing has legally changed then clearly the only thing that has changed is the way it was negotiated and communicated. Now we have a negotiator sorting it out the trouble stops, that speaks volumes about the Labour party, bloody good job it’s imploding. Hopefully it will get some much needed fresh faces while we move on with an agreement and put this governance bungling behind us.

  22. ak 22

    So that’s that then. After years of wailing and gnashing of teeth the raison d’etre for the Maori Party is finally consummated with the repeal of the FSA. Resulting in……something pretty similar all round. Cue confusion and bewilderment as both redneck and browneaucrat scratch their heads and choreograph the next steps in their ugly, boring waltz.

    Creating a vacuum into which a newly-decisive opposition should now plunge. The issue aint ownership – it’s access, people. And it’s huge. Let the wranglers wrangle, new “decisive” Phil; congratulate the MP and Nats on arriving at F&S 2, give the Greens a ring if you like, – but promote a new “One Shore for All” Continuous Coastal Access Strip with gusto and confidence. Now. While the embers are still warm.

    Access for All. Everywhere. 24/7.

    Leave the details (ports, compensation etc) till later: invoke the Queen’s Chain and use words like Esplanade Strip, High-tide reserve, Common-held-heritage, World Heritage Walkway, Surfing Mecca, Wildlife preserve, Winding Wildlife Wilderness of Wonder, World-first Uninterrupted Highway of Nature, Continuous Coastal Paradise, Longest Beach in the World, The longest Strand, Beachcombers’ Heaven, Fishers’ Fantasia, Beach volleyball (female), Lucy Shoreless, Sir Headland Hillary, Whale-watchers’ wonderland, Whale oil be amazed, oil-free pelicans, pellet-free oilcans, amazing albatross aerial antics, canny crustaceans, crusty can……ok sorry about that, but you get the drift….Joanna Blogs doesn’t really give a rat’s about ownership – nor believe it will ever be resolved. It’s access, access, access. Ak sez.

    • RedLogix 22.1

      Oh ownership would be back on the table fast enough when:

      Deepsea oil is found.

      The west coast ironsands become a prized target again.

      Or we find a way to mine the minerals around volcanic sea-mounts.

      Or extract vast quantities of methane hydrates from the depths.

      Or more sheltered shorelines for aquaculture are sought.

      Or wave power developments come to maturity.

      Or we just wake up and realise that the best place for wind farms is ….

  23. Lew 23

    Actually, the māori party hasn’t caved — the Iwi Leadership Group has. The māori party’s role is to represent the interests of their people — and in the case of the Foreshore and Seabed, the ILG was convened as a paroxy for those interests holding potential claims to the F&S. I objected stringently to the possibility that the māori party would agree to the government’s proposal which had been rejected by the ILG — that would have been as clear a breach of their mandate as could be imagined. But in this case, the ILG have come out in support of the plan, changing their position an apparent 180° in a week based on … nothing that I can figure.

    So, in principle, the māori party is just doing what their stakeholders want them to do.

    But I can’t reconcile it. The proposed bill has some good aspects, but fundamentally as micky says it’s very much like the FSA. It is an improvement on the FSA, but not, to my mind, a considerable enough improvement to be acceptable. So this is not really a defence of the māori party. I think it’s a bad call on their part to agree to it, even if the ILG wants it; they’ve settled for too little.

    L

    (Essentially a brief rewrite of this post for those who are interested. But I thought after taking such a strong position on this topic over the years, I should put my thoughts on the record here.)

  24. Sanctuary 24

    “Actually, the māori party hasn’t caved ”

    How long did it take you to dream up that lame-o excuse Lew?

    • Lew 24.1

      About as long as it took me to read the Iwi Leadership Group’s press release, where they make it clear that they had granted the māori party a mandate to accept. I still think they shouldn’t have accepted, but there’s no argument to be made that they lacked a mandate to do so.

      L

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