No one owns foreshore – Govt “solution”

Written By: - Date published: 3:28 pm, March 31st, 2010 - 16 comments
Categories: foreshore and seabed - Tags:

The Government has released its Foreshore and Seabed policy. It will put the F&S into ‘public domain’ where it will be owned by no one. Maori will be able to take claims for customary rights over parts of the F&S to Court (except those parts that are already owned by private, Pakeha, interests of course).

The irony is that this is pretty much what Labour proposed back in 2003 – that the Foreshore and Seabed be held ‘in the commons’ and National attacked that as a PC legal nonsense.

Just last month it was revealed that this was the ‘elegant solution’ that John Key was negotiating with the secretive ‘Iwi Leadership group’. Tariana Turia rejected this option because it essentially doesn’t change the status quo. Under the current law, Maori can negotiate with the Crown for recognition of customary rights, now they’ll be able to do that via the court system as well.

Last month, Hone Harawira explicitly ruled out following such a path, took some digs at the Iwi Leadership Group, and said he had his party’s backing to push for a satisfactory solution, which he was clear has always been full ownership. Here are the three principles that Harawira said had been agreed by his party for the F&S:

1. Maori Title: If government can assume ownership of the FSSB with one piece of legislation, they can just as easily give it back to Maori with another. That will put an immediate end to all the anxiety and angst and anguish from the past, and the decades of discord that will surely await us in the future, in we don’t act honourably now.

2. Inalienability: In the same legislation, include a clause ensuring that Maori can never sell the Foreshore and Seabed. That fits with the Maori world view that we don’t own land as a commodity, but rather we hold it as a taonga for future generations. It will also put an end to all that rubbish about Maori only wanting it so we can sell it.

3. Full Access: Again, in the same legislation, guarantee full access to all New Zealanders, because in the same way that Maori don’t want it to keep it for ourselves, neither do we want it to keep Pakeha out. As kaitiaki, we must be able to set limits on access to protect seafood stocks, promote conservation, and control behaviour, but granting access to Kiwis is an easy deal.

But that was then. Now, Turia is already laying the groundwork for a humiliating back down:

“I encourage our people, who might be struggling with those proposals, to seek guidance from their hapu, to return home to those hapu who have, for generation after generation, cared for te takutai moana on behalf of us all. Our priority is repeal – we promised our people we’d get it so that’s our main objective. Beyond repeal is to get the best deal for our mokopuna,”

Notice how it’s no longer about getting ownership rights recognised. Turia is pretending it was always simply a technocratic issue about repealing an Act, even if the replacement regime is largely the same in effect.

Turia is going to chicken out on the issue that created her party. As we’ve been predicting all along. I guess anything it’s all pretty much the same either way from the back of a Crown limo.

16 comments on “No one owns foreshore – Govt “solution” ”

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  1. the sprout 1
    31 March 2010 at 3:35 pm

    So doesn’t this just mean that de facto the Crown owns it and therefore precisely nothing has changed?
    Another pyrrhic victory for the Maori Party.

  2. Bright Red 2
    31 March 2010 at 3:49 pm

    I don’t see how this gives Maori anything of what they wanted when they formed the Maori Party. Public domain is just crown ownership in drag.

  3. Joshua 3
    31 March 2010 at 3:51 pm

    Not really, no. It means that title is not vested in the Crown but in the public. Underlying that are the notion of customary rights which basically reverts to the position prior to the 2004 Act – that Maori can test these in a Court of law. To suggest that the protests were simply about ownership is to show a naive understanding of the situation. In essence, Maori were protesting three aspects:
    1: The removal of access to the Courts
    2: The loss of ownership rights – at the 2004 Act made it almost impossible to have even a customary right recognised, a standard which will now be relaxed
    3: The complete destruction of the Labour-Maori relationship with the passage of this legislation without consultation.

    These reforms have addressed two out of the three, all that remains is the vexed issue of ownership. As for the Maori party – they campaigned on the repeal of the Act. That is going to happen. Its replacement should be seen as a different issue – an Act which will arise after a proper round of consultation.

    I do look forward to your sumbission Marty that full ownership of the foreshore and seabed vests with Maori – and I will be supporting that submission. I think many Maori and non-Maori will be supporting that position. It was, funnily enough, the position taken by the Act party who stood up at the time against the 2004 Act because it legislated over Maori property rights. [Back in their more principled days]

    And this will be far from a humiliating back down. The Maori Party will receive a lot of credit for achieving a result, even if not ideal, given the complete distain that the previous Government showed towards the relationship with Maori. Labour took it all away, National is giving a little bit back. Hopefully next time it will all be ‘returned’ (We know that it belongs to Maori regardless of what the legislation states)

    • felix 3.1
      3 April 2010 at 4:26 pm

      I was under the impression that the ACT party’s position was that maori should be able to test their claim to ownership in court, not that maori should have full ownership recognised already.

      As far as I know this is still the ACT party’s position.

    • mickysavage 3.2
      3 April 2010 at 5:44 pm

      I beg to disagree Joshua.

      To respond

      1: The removal of access to the Courts

      Section 33 of the Foreshore and Seabed Act 2004 stated:

      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.

      Looks like a right to access the court to me.

      2: The loss of ownership rights at the 2004 Act made it almost impossible to have even a customary right recognised, a standard which will now be relaxed

      This is semantic. The court could make a finding that a territorial customary right had existed and then mandate a settlement procedure and if there was agreement the Judge had to sign off on it (section 43).

      3: The complete destruction of the Labour-Maori relationship with the passage of this legislation without consultation.

      There was a huge amount of consultation, just no agreement. I am really bemused by this whole issue. National was standing on the sideline throwing rocks into the process to make sure it never worked and their position was no rights no how. Labour tried to find a middle course. The Maori party believed that it owned all of the foreshore and seabed. There was never any chance of agreement.

      This current rearrangement is just the substitution for some words with other words, “Public Domain” for “Crown Ownership” and instead of a declaration that rights existed now the rights will remain but enforcement will be limited. In particular alienation will not occur under either regime and alienation was one of the primary drivers of the existing legislation.

      The trouble is this issue is way over the head of many including the media.

  4. RedLogix 4
    3 April 2010 at 4:33 pm

    I do look forward to your sumbission Marty that full ownership of the foreshore and seabed vests with Maori and I will be supporting that submission. I think many Maori and non-Maori will be supporting that position.

    I know that’s the trendy position among the liberal intelligensia… but any govt that goes down that path will be committing electoral suicide. Helen Clark knew it, and so does John Key.

    Government showed towards the relationship with Maori. Labour took it all away, National is giving a little bit back.

    Ironically because Don Brash, Bill English and the righties of the day all pushed the big scaremongering button provoking a massive backlash no govt could have survived. If National get away with this round, it will mainly because a far more responsible Labour Opposition refrains from responding in kind.

    Still I’m not so sure. A quick scan of the Herald and Stuff opinion comments on this issue are pretty solidly against Maori being given anything that looks like title.

    • Lew 4.1
      3 April 2010 at 6:28 pm

      RL,

      Ironically because Don Brash, Bill English and the righties of the day all pushed the big scaremongering button provoking a massive backlash no govt could have survived. If National get away with this round, it will mainly because a far more responsible Labour Opposition refrains from responding in kind.

      Well, there’s been a great deal of temptation for Labour to push it having been somewhat devoid of options recently. I hope that their better angels win out — but I note that plenty of them as call themselves lefties and think of themselves as a better sort than the righties hope not.

      A quick scan of the Herald and Stuff opinion comments on this issue are pretty solidly against Maori being given anything that looks like title.

      And in other news, grass is green, water is wet, and dairy farmers wear gumboots.

      L

      • RedLogix 4.1.1
        3 April 2010 at 6:32 pm

        True, but last I looked neither grass nor gumboots (no matter how wet) voted.

  5. TightyRighty 5
    3 April 2010 at 5:05 pm

    Why shouldn’t Maoridom retain some title, or at least some form of title on the foreshore and seabed? this is always something I have been unsure how to exactly phrase, but it seems to me that if the more moderate and engaged elements of tribes have a vested interest in the area, then we would see better conservation results and husbandry of the particular area. this might also stop the extremists that occasionally pop up from preventing access by the wider community. that always seems to be the action that sparks the most fear in the wider community.

    • mickysavage 5.1
      3 April 2010 at 7:18 pm

      “Title” is a European concept that can be transferred or mortgaged and lost. This is why it is totally wrong to allow for this possibility.

      • Lew 5.1.1
        3 April 2010 at 10:01 pm

        “Title” is a broader concept than you claim. There are various kinds, some of which are inalienable. It’s not static, so it gets to be re-tooled to meet new circumstances.

        L

    • lprent 5.2
      3 April 2010 at 10:07 pm

      I’ve been unsure ever since observing a couple of hapu in a dispute with each other about how to control a resource.

      The foreshore and seabed is hellishly fragile simply because it is the epitome of an erosion zone. A decade or two of benign neglect while people argue with each other seems to just leave everything wide open for the wide-boys – like property developers taking a few nicks out of the on-shore dune.

      If there was a strong overriding framework that they (as well as everyone else) had to conform to, complete with having charges laid against anyone violating them – then it could conceivably work.

      • TightyRighty 5.2.1
        4 April 2010 at 10:56 am

        but what should be the strong framework, that grants a form of title, without disadvantaging other users? thats the concern. how to recognise both maori and the crowns (ie the peoples) right to access the foreshore and seabed is a fiendishly difficult problem.

  6. Zaphod Beeblebrox 6
    3 April 2010 at 6:18 pm

    Pretty interesting that there is zilch mention of the seabed resources and who gets the royalties and rents from things like marinas. You’d think that under the treaty a lot would flow to Maori- under this its not so certain.

  7. Lew 7
    3 April 2010 at 6:21 pm

    It’s a bit more complicated than that.

    Harawira’s three points could actually be achievable in some cases. Customary title is achievable out of this scheme, in principle (haven’t looked at how practical the tests will be). This could approximate to the first of Harawira’s stipulations. The two latter stipulations are obviously provided for in the proposal.

    I have some concerns about this, and I’ve been critical of the public domain proposal in the past. But I’ve only read the Herald and Stuff coverage on it as yet, so I’ll reserve them for now. But to say it’s functionally the same as the FSA is simply idiotic. Incidentally, it’s also what the government — or at leas Key — is saying, which is at odds with the proposed scheme and some of the statements of the A-G, who ought to know. For just one thing, you can go to an open court in this scheme and test your case; while there exist specific provisions and apparently will among the government to negotiate as a matter of preference. For another thing, there was and is extensive, expert and transparent public consultation prior to this scheme’s proposal: a mandate sought, rather than legislation by government fiat against the wishes of those most affected by the laws. That’s a lot of difference already.

    Welcome back from server death hell, by the way 🙂

    L

    • Brokenback 7.1
      4 April 2010 at 2:31 am

      The definition of new Zealand’s submerged Lands is crucial to an understanding of the issues involved with Seabed & Foreshore.
      Iwi/maori discontent arose with the lack of access in the Marlborough sounds to resource consent for greenlip mussel farming.
      The Tanagta Whenua on individual and corporate level had been initially denied access by the political hegemony in the Regional council and then stymied by a moratorium imposed on further increase in area under exploitation by the Resource Management Act.
      It became a big ticket item largely due to the grandstanding of Nick Smith in order to drag himself back from the political wilderness he had been deservedly consigned to.

      The foreshore and inshore fishery is the overriding focus of nearly all the debate,press and discussion .
      Unfortunately most of this is smokescreen, glass and mirrors by the spokesthings for those who desire to control all.

      New Zealand’s submerged lands encompass 4,300,000 square km , containing extremely [sustainably] productive deepsea and pelagic fisheries .
      70% of it lies above unexplored sedimentary basins ,attributed to the submerged continent of Zealandia which though lightly explored by global standards have significant indications of Oil & gas resources.
      In the deeper waters to the north lie a succession of deepwater Volcanic Sea mounts and volcanic vents which although lightly prospected [by glass Earth & others] hold considerable promise for igneous gold ,paladium and other minerals .
      This is the resource which has the potential to underpin the NZ economy and sustain the community for many generations to come.
      It ‘s also the area we are most likely to lose control of to large Transnational corporations and the protection of sovereignty there linked to Harawira’s proposal detailed above is in the best interest
      of all New Zealanders present and future.

      We can all be assured that this outcome is not the aim of the band of thieves , pimps and lawyers that purport to be our current government.