On the foreshore

Written By: - Date published: 3:21 pm, October 30th, 2010 - 11 comments
Categories: foreshore and seabed, Maori Issues, maori party - Tags:

Seems like the Maori Party conference is off to a rocky start. Likely to get even rockier as they move on to the main event, the vexed foreshore and seabed situation.

The Maori Party, even within its parliamentary wing, is divided on the issue. It certainly hasn’t helped that ACT has been sticking its oar in to ratchet up the tension. Is the Maori Party going to put up with meddling by the “little fat redneck” Rodney Hide? For a while it was looking like the final straw. But currently Pita Sharples at least seems to have fallen back in to line:

National has said it will scrap the Marine and Coastal Areas Bill if the Maori Party pulls support for it, Maori Party co-leader Pita Sharples has warned members.

Speaking at the party’s annual conference in Hastings, Dr Sharples said he agreed the bill did not go far enough to give Maori right over coastal land, but opposing it would mean the existing law would remain for years.

The bill replaces the Foreshore and Seabed Act, which removed the right of Maori to seek customary title to beaches and seaside areas.

There’s the central claim of the whole dispute over the Foreshore and Seabed Act — that it “removed the right of Maori to seek customary title to beaches and seaside areas”. This claim is repeated as fact by almost every protagonist and commentator involved in the debate. Apart from mickysavage here I can’t recall ever seeing it challenged. But as I have said before and I will say again, it seems to be nothing more than bogus semantics.

The existing Foreshore and Seabed Act uses the language of “customary territorial rights”. The Act (here or here) 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)).

The proposed replacement Marine and Coastal Areas Bill uses the language of “customary title”. How is this different from “customary territorial rights”? The difference appears to be whatever you want it to be. It’s pure semantics. Ex National Minister in Charge of Treaty Negotiations Doug Grahamn, in his “A layman’s guide to understanding customary title”, completely conflates the two concepts:

What are customary rights and a customary title?

The common law has always recognised the right of indigenous people to carry on practising their customs. These may be non-territorial customary rights such as fishing and hunting, or a territorial customary title where they actually lived. …

Is a customary title like my freehold title?

No. Customary title is unique and quite unlike freehold land. It is normally communally owned and exists to permit the indigenous people to practise their customary activities on it. My freehold title is a Crown grant.

Spot the difference between customary territorial rights and customary title? Me neither. Neither, apparently, do some iwi. Ngati Porou secured rights under the existing Act that created a precedent that other Iwi now hope to be able to match under the new legislation:

FORESHORE MANAGEMENT MODEL HARD TO MATCH

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. … Mr Curtis says what iwi want is the sort of coastal management powers which Ngati Porou secured through negotiations with the previous government…

Naturally the current minister, Chris Finlayson, would have us believe that there is a difference, but the extent of “ownership” conferred by customary title appears to be so restricted that it amounts to the same thing as customary rights (the newly included mineral rights could just as easily have been included within the scope of either Act). No one else much sees a difference. Key said (and stands by) “I don’t think people will notice a lot of change.” Tariana Turia calls the new Bill “a small step along the way”. And Hone Harawira told reporters: “Comparing the 2004 and current bill showed that very little had changed. Except for maybe the “spelling” of the laws’ names”.

In short, the differences between customary territorial rights and customary title, and therefore between the defining characteristics of the existing Act and the new Bill, seem to be pretty much whatever we want them to be. It’s all about symbols. As legal expert Andrew Geddis put it:

So what we have here is a classic case of “legislation as symbol”. The content of that legislation may not appreciably change the way the world works, or really alter the rights and obligations of the people who live in that world to any great degree. But its very creation and passage sends a message about whose will prevails and whose interests are considered important.

So what does the symbol of the new legislation mean? And is the symbol alone enough for the Maori Party? I guess that this weekend we get to find out…

11 comments on “On the foreshore ”

  1. Colonial Viper 1

    Hmmm, early in their conference yet me thinks. Will be interesting how the mood and the interpersonal dynamics go tomorrow.

    Regardless, the LP needs to pay more attention to relationships with the MP in preparation for various manoeuverings next year. Not just to the Members of Parliament, but those influential in the party as well.

  2. ianmac 2

    The Maori Party Conference is not carefully orchestrated like the National Party Conference. We do get to see their disagreements out in the open so they must get credit and understanding for that.

    Key : Take it, or we will leave the Act as it is.
    Dr Sharples: It is slightly better than nothing, so we said the 2004 Act would be repealed, and now we can say we succeeded.
    Does it sound like blackmail to you or bargaining in good faith?
    (Thinks also: Warner/Hobbits/Key/blackmail)

  3. Good post r0b

    This whole threat of key’s to leave everything the way it is if the maori party don’t support the bill says it all IMO. There is only one way to go and the maori party will be getting that message for sure. The maori party have to forget about legacies and realise, like most battles for maori, it won’t take two days to sort out (like the payoff to warners), more like generations. So be it – it’s not really a big surprise. We just get on with the job of moving the centre of balance. Trailblazers are fondly remembered by maori and that is the ultimate legacy and honour for this iteration of the maori party.

  4. Ari 4

    Not sure that fat-hating on Rodney really advances your point…

  5. Good post R0b. I always struggled to understand why what Labour did was so terrible and yet what is being proposed now is so much better. The difference is minimal and semantic.

    Of course I could be accused of bias …

  6. Rob 6

    Ngati Porou didn’t get title they got a right to consultation on environmental issues. The act’s previous legal test was too high for most Maori to satisfy to get territorial rights. Even if they did what they got was not a title it would be things like a right to consult on some issues. This process will leave Maori able to say the land has returned to their ownership and they can use the resources on it as they wish so long as they still provide for public access, it is a different title. The new act is a somewhat lower standard for the test but still there may be no Maori who could satisfy it. The process for non-territorial rights has also now been made more worthwhile to do. The legislation does not make a huge difference but it does soften it enough that it is possible there would be a successful claim using it. The distinction you are highlighting in those few words is not a crucial distinction you are right because it isn’t one of the major changes.

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    Hi,It’s been awhile since I’ve done an Ask-Me-Anything on here, so today’s the day. Ask anything you like in the comments section, and I’ll be checking in today and tomorrow to answer.Leave a commentNext week I’ll be giving away a bunch of these Mister Organ blu-rays for readers in New ...
    David FarrierBy David Farrier
    6 days ago
  • National’s early moves adding to cost of living pressure
    The cost of living grind continues, and the economic and inflation honeymoon is over before it began. Photo: Lynn Grieveson / The KākāTL;DR: PM Christopher Luxon unveiled his 100 day plan yesterday with an avowed focus of reducing cost-of-living pressures, but his Government’s initial moves and promises are actually elevating ...
    The KakaBy Bernard Hickey
    6 days ago
  • Backwards to the future
    Prime Minister Christopher Luxon has confirmed that it will be back to the future on planning legislation. This will be just one of a number of moves which will see the new government go backwards as it repeals and cost-cuts its way into power. They will completely repeal one ...
    PolitikBy Richard Harman
    6 days ago
  • New initiatives in science and technology could point the way ahead for Luxon government
    As the new government settles into the Beehive, expectations are high that it can sort out some  of  the  economic issues  confronting  New Zealand. It may take time for some new  ministers to get to grips with the range of their portfolio work and responsibilities before they can launch the  changes that  ...
    Point of OrderBy tutere44
    7 days ago
  • Treaty pledge to secure funding is contentious – but is Peters being pursued by a lynch mob after ...
    TV3 political editor Jenna Lynch was among the corps of political reporters who bridled, when Deputy Prime Minister Winston Peters told them what he thinks of them (which is not much). She was unabashed about letting her audience know she had bridled. More usefully, she drew attention to something which ...
    Point of OrderBy Bob Edlin
    7 days ago
  • How long does this last?
    I have a clear memory of every election since 1969 in this plucky little nation of ours. I swear I cannot recall a single one where the question being asked repeatedly in the first week of the new government was: how long do you reckon they’ll last? And that includes all ...
    More Than A FeildingBy David Slack
    7 days ago
  • National’s giveaway politics
    We already know that national plans to boost smoking rates to collect more tobacco tax so they can give huge tax-cuts to mega-landlords. But this morning that policy got even more obscene - because it turns out that the tax cut is retrospective: Residential landlords will be able to ...
    No Right TurnBy Idiot/Savant
    7 days ago
  • CHRIS TROTTER: Who’s driving the right-wing bus?
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    Point of OrderBy poonzteam5443
    1 week ago
  • GRAHAM ADAMS:  Media knives flashing for Luxon’s government
    The fear and loathing among legacy journalists is astonishing Graham Adams writes – No one is going to die wondering how some of the nation’s most influential journalists personally view the new National-led government. It has become abundantly clear within a few days of the coalition agreements ...
    Point of OrderBy gadams1000
    1 week ago
  • Top 10 news links for Wednesday, Nov 29
    TL;DR: Here’s my pick of top 10 news links elsewhere for Wednesday November 29, including:The early return of interest deductibility for landlords could see rebates paid on previous taxes and the cost increase to $3 billion from National’s initial estimate of $2.1 billion, CTU Economist Craig Renney estimated here last ...
    The KakaBy Bernard Hickey
    1 week ago
  • Smokefree Fallout and a High Profile Resignation.
    The day after being sworn in the new cabinet met yesterday, to enjoy their honeymoon phase. You remember, that period after a new government takes power where the country, and the media, are optimistic about them, because they haven’t had a chance to stuff anything about yet.Sadly the nuptials complete ...
    Nick’s KōreroBy Nick Rockel
    1 week ago
  • As Cabinet revs up, building plans go on hold
    Wellington Council hoardings proclaim its preparations for population growth, but around the country councils are putting things on hold in the absence of clear funding pathways for infrastructure, and despite exploding migrant numbers. Photo: Lynn Grieveson / The KākāTL;DR: Cabinet meets in earnest today to consider the new Government’s 100-day ...
    The KakaBy Bernard Hickey
    1 week ago
  • National takes over infrastructure
    Though New Zealand First may have had ambitions to run the infrastructure portfolios, National would seem to have ended up firmly in control of them.  POLITIK has obtained a private memo to members of Infrastructure NZ yesterday, which shows that the peak organisation for infrastructure sees  National MPs Chris ...
    PolitikBy Richard Harman
    1 week ago
  • At a glance – Evidence for global warming
    On February 14, 2023 we announced our Rebuttal Update Project. This included an ask for feedback about the added "At a glance" section in the updated basic rebuttal versions. This weekly blog post series highlights this new section of one of the updated basic rebuttal versions and serves as a ...
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  • Who’s Driving The Right-Wing Bus?
    Who’s At The Wheel? The electorate’s message, as aggregated in the polling booths on 14 October, turned out to be a conservative political agenda stronger than anything New Zealand has seen in five decades. In 1975, Bill Rowling was run over by just one bus, with Rob Muldoon at the wheel. In ...
    1 week ago

  • PISA results show urgent need to teach the basics
    With 2022 PISA results showing a decline in achievement, Education Minister Erica Stanford is confident that the Coalition Government’s 100-day plan for education will improve outcomes for Kiwi kids.  The 2022 PISA results show a significant decline in the performance of 15-year-old students in maths compared to 2018 and confirms ...
    BeehiveBy beehive.govt.nz
    15 hours ago
  • Collins leaves for Pacific defence meeting
    Defence Minister Judith Collins today departed for New Caledonia to attend the 8th annual South Pacific Defence Ministers’ meeting (SPDMM). “This meeting is an excellent opportunity to meet face-to-face with my Pacific counterparts to discuss regional security matters and to demonstrate our ongoing commitment to the Pacific,” Judith Collins says. ...
    BeehiveBy beehive.govt.nz
    2 days ago
  • Working for Families gets cost of living boost
    Putting more money in the pockets of hard-working families is a priority of this Coalition Government, starting with an increase to Working for Families, Prime Minister Christopher Luxon says. “We are starting our 100-day plan with a laser focus on bringing down the cost of living, because that is what ...
    BeehiveBy beehive.govt.nz
    2 days ago
  • Lake Onslow pumped hydro scheme scrapped
    The Government has axed the $16 billion Lake Onslow pumped hydro scheme championed by the previous government, Energy Minister Simeon Brown says. “This hugely wasteful project was pouring money down the drain at a time when we need to be reining in spending and focussing on rebuilding the economy and ...
    BeehiveBy beehive.govt.nz
    3 days ago
  • NZ welcomes further pause in fighting in Gaza
    New Zealand welcomes the further one-day extension of the pause in fighting, which will allow the delivery of more urgently-needed humanitarian aid into Gaza and the release of more hostages, Foreign Minister Winston Peters said. “The human cost of the conflict is horrific, and New Zealand wants to see the violence ...
    BeehiveBy beehive.govt.nz
    5 days ago
  • Condolences on passing of Henry Kissinger
    Foreign Minister Winston Peters today expressed on behalf of the New Zealand Government his condolences to the family of former US Secretary of State Henry Kissinger, who has passed away at the age of 100 at his home in Connecticut. “While opinions on his legacy are varied, Secretary Kissinger was ...
    BeehiveBy beehive.govt.nz
    5 days ago
  • Backing our kids to learn the basics
    Every child deserves a world-leading education, and the Coalition Government is making that a priority as part of its 100-day plan. Education Minister Erica Stanford says that will start with banning cellphone use at school and ensuring all primary students spend one hour on reading, writing, and maths each day. ...
    BeehiveBy beehive.govt.nz
    5 days ago
  • US Business Summit Speech – Regional stability through trade
    I would like to begin by echoing the Prime Minister’s thanks to the organisers of this Summit, Fran O’Sullivan and the Auckland Business Chamber.  I want to also acknowledge the many leading exporters, sector representatives, diplomats, and other leaders we have joining us in the room. In particular, I would like ...
    BeehiveBy beehive.govt.nz
    6 days ago
  • Keynote Address to the United States Business Summit, Auckland
    Good morning. Thank you, Rosemary, for your warm introduction, and to Fran and Simon for this opportunity to make some brief comments about New Zealand’s relationship with the United States.  This is also a chance to acknowledge my colleague, Minister for Trade Todd McClay, Ambassador Tom Udall, Secretary of Foreign ...
    BeehiveBy beehive.govt.nz
    6 days ago
  • India New Zealand Business Council Speech, India as a Strategic Priority
    Good morning, tēnā koutou and namaskar. Many thanks, Michael, for your warm welcome. I would like to acknowledge the work of the India New Zealand Business Council in facilitating today’s event and for the Council’s broader work in supporting a coordinated approach for lifting New Zealand-India relations. I want to also ...
    BeehiveBy beehive.govt.nz
    7 days ago
  • Coalition Government unveils 100-day plan
    Prime Minister Christopher Luxon has laid out the Coalition Government’s plan for its first 100 days from today. “The last few years have been incredibly tough for so many New Zealanders. People have put their trust in National, ACT and NZ First to steer them towards a better, more prosperous ...
    BeehiveBy beehive.govt.nz
    7 days ago
  • New Zealand welcomes European Parliament vote on the NZ-EU Free Trade Agreement
    A significant milestone in ratifying the NZ-EU Free Trade Agreement (FTA) was reached last night, with 524 of the 705 member European Parliament voting in favour to approve the agreement. “I’m delighted to hear of the successful vote to approve the NZ-EU FTA in the European Parliament overnight. This is ...
    BeehiveBy beehive.govt.nz
    2 weeks ago
  • Further humanitarian support for Gaza, the West Bank and Israel
    The Government is contributing a further $5 million to support the response to urgent humanitarian needs in Gaza, the West Bank and Israel, bringing New Zealand’s total contribution to the humanitarian response so far to $10 million. “New Zealand is deeply saddened by the loss of civilian life and the ...
    BeehiveBy beehive.govt.nz
    3 weeks ago

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