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Symbol or substance?

Written By: - Date published: 9:11 am, July 7th, 2009 - 28 comments
Categories: economy, maori party, national - Tags:

It seems to me that National has fundamentally misunderstood what the foreshore and seabed debate is about.

Key’s statements yesterday suggest it is about a mere symbolical recognition of an iwi’s traditional ties to sections of foreshore and seabed. It’s not. He seems to think it’s about beaches. It’s not. He seems to equate mana with nothing more than respect. It’s not.

In the past, National intentionally confused the issue by raising fears of access to the beaches to fuel racism but it’s nothing to do with the beaches. The foreshore is the inter-tidal zone. The seabed is the ground beneath the sea out to the edge of the continental shelf. 

The customary rights that Maori want recognised are not just feel good symbols. They are property rights – the ability to use that land without needing to seek permission from someone else. In fact, the Ngati Apa case was based on the iwi asserting it had the right to conduct aquaculture using the seabed without needing to get permission from the local council based on its rights to that seabed which pre-dated the imposition of English law. 

Mana is not just about being respected, it is also about having the power to do things. In this case, mana over foreshore and seabed means, in part, the power to use that land for economic activities as their ancestors did.

If Key is relaxed because he thinks Maori are asking for nothing substantial, he is in for a surprise. The Maori Party was not created because of a dispute over empty symbols. This is about iwi having their economic rights over the land of the foreshore and seabed recognised, giving them the power to use that land for economic purposes.  The Maori Party will not be satisfied with less.

These two different understandings of what is at stake must come into conflict at some point.

28 comments on “Symbol or substance? ”

  1. ieuan 1

    I think ‘conflict’ is the right word because there are all those other New Zealanders, you know the one’s without 1/16th Maori blood, that get a little upset when a minority gets rights and compensation that the majority end up having to pay for it.

    This is a huge can of worms and good luck to ‘National’ the the ‘Maori Party’ in finding a way to make this all work without a major backlash from a large percentage of the population.

  2. ak 2

    Spot on Eddie: the old shelve-and-fudge, forked and slippery tongue won’t work on this one. Let them eat mana, indeed.

    I see that both fee simple and compensation are “off the table” already for the Keyster – directly contradictory to initial comments from Hone and Tariana.

    Compare the press treatment of this with the disgusting cheerleading given to Orewa One. And weep.

    • snoozer 2.1

      And then you have Pita Sharples on the radio this morning saying the Maori Party doesn’t want compensation. Hard to know what they stand for from one day to the next.

  3. Maggie 3

    When Sharples made soothing words on National Radio this morning, I would have expected Sean Plunket to hone in on the obvious conflict between what Sharples was saying and what his co-leader had said the day before. Not a dicky bird.

    Tariana is clearly confused. As this statement shows one second she is saying the S & F issue isn’t about money and compensation, the next she seems to be saying that it is…..

    http://www.tetaihauauru.maori.nz/index.php?pag=nw&id=108&p=this-has-never-been-about-money-says-maori-party-coleader-tariana-turia.html

  4. toad 4

    Eddie said:

    …the ability to use that land without needing to seek permission from someone else. In fact, the Ngati Apa case was based on the iwi asserting it had the right to conduct aquaculture using the seabed without needing to get permission from the local council based on its rights to that seabed which pre-dated the imposition of English law.

    While I agree with the focus of your post on Key’s repsonse, I don’t think the bit of it I’ve quoted above is strictly correct Eddie.

    In the Ngati Apa case, Ngati Apa acknowledged that they needed a licence from the Marlborough District Council to farm mussel on the seabed. It was the Council declining to issue the licence upon Ngati Apa’s application that led to the litigation and the finding of the Court of Appeal that Ngati Apa had the right to apply to the Maori Land Court to determine whether they had customary title to the seabed and foreshore within their rohe. It was that right that was extinguished by the Foreshore and Seabed Act.

    Even though Key might not fully understand its implications, I think he is doing the fair and just thing in readressing this issue – the FSA was the legislative low point of the last Labour Government, and I think even Labour is now starting to acknowledge that.

    The scary bit is Winston Peters crawling out from wherever he’s been for the last seven months and trying to stir up the racist underbelly of New Zealand society for his own political ends.

    Maggie – the Ministerial Review report clearly proposes that compensation is on the agenda:

    • The principle of compensation
    Where private property rights, of any kind, are extinguished in the foreshore and seabed, such extinguishment should in principle be compensated.

    • gobsmacked 4.1

      Toad
      :
      the finding of the Court of Appeal that Ngati Apa had the right to apply to the Maori Land Court to determine whether they had customary title to the seabed and foreshore within their rohe. It was that right that was extinguished by the Foreshore and Seabed Act.

      Yes, the strongest argument against the Act (with resonance across the political spectrum, Maori and non-Maori) was the right to a “day in court”.

      Therefore, the government should just repeal the Act, and let the courts decide. But are they willing to do that? So far, the signs are unclear.

      If Maori (iwi, etc) do not get their “day in court”, and no greater customary rights – maybe even less – than Cullen’s law gave them, what exactly is the point of repealing the Act? Or indeed, the point of the Maori Party?

      • Draco T Bastard 4.1.1

        I suppose what their customary rights are in regards to the foreshore and seabed are what the courts would determine. It’s certainly hard to say that they should get greater customary rights considering that customary rights are based on what they did before the coming of the signing of Te Tiriti O Waitangi. From what I can make out, that included gathering shellfish by hand from their natural habitat and fishing using hand lines. It didn’t include large scale mussel farms (man made habitat) etc or trawlers.

        What the MP is asking for is to have a different set of rules based upon race and that is racism.

        • Anthony Karinski 4.1.1.1

          So if your family has held a piece of land for say 200 years you shouldn’t be allowed to build a high rise, sealed road or mine it for titanium because these were not options when it originally got into your hands?

          • Draco T Bastard 4.1.1.1.1

            There is a question of if they actually held the seabed and foreshore which is doubtful considering technology at the time. They didn’t actually use the seabed.

            Then there is the fact that if I found a gold vein on my land I would have to get permission to mine it. The latter wouldn’t change even if they held rights to the foreshore and seabed.

            • Anthony Karinski 4.1.1.1.1.1

              So you’re doubtful of whether they held the seabed and foreshore. Ok, but wouldn’t it at least be fair to let them argue their case in a court instead of having that basic right legislated away?

        • Lew 4.1.1.2

          DtB,

          considering that customary rights are based on what they did before the coming of the signing of Te Tiriti O Waitangi

          They quite explicitly are not. The Waitangi Tribunal cleared this idiotic canard up more than two decades ago in Wai 22, stating that treaty rights are rights to development, allowing the use of new methods, and development of properties for new (non-traditional) purposes. Yours is the absurd line of argument which holds that the Mãori owners of Sealord should be free to catch as much as they like using flax lines and dugout canoes and bone hooks.

          They didn’t actually use the seabed.
          (from your other comment below)

          Yes, they did. They harvested shellfish and seaweed and other things from the seabeds. That they may have been unable to exploit them to their full extent at the time is irrelevant for the reason above – it’s clear that local Mãori in many locations exercised complete dominion out to a distance of at least 12 miles, and this fact was recognised in the fisheries claims by the Waitangi Tribunal.

          Then there is the fact that if I found a gold vein on my land I would have to get permission to mine it.

          Anthony asked about titanium (presumably chosen as an arbitrary valuable mineral), you countered with gold (ownership of which is explicitly nationalised, along with only a very small handful of other minerals). The FSA and customary title to it changes nothing in relation to those nationalised minerals, and everything to do with other minerals.

          L

        • Lew 4.1.1.3

          DtB,

          What the MP is asking for is to have a different set of rules based upon race and that is racism.

          Oh, and I can’t let this stand, either. Māori aren’t arguing for different rights on the grounds of race – they’re arguing for their rights to foreshore and seabed to be enforced on the same grounds as their rights to dry land; that is, if the crown can’t prove that customary ownership (technically: ‘native title’) was extinguished, then land must be deemed to still be held in native title; one of the things the FSA did was reverse this test, so that if Māori were unable to prove that the area in question was not under native title then it was deemed to not be so.

          Aside from which, if you think Māori land rights in law have been protected to the same extent as Pākehā land rights (as ‘one law for all’ suggests), then I want some of that shit you’re smoking with Michael Laws. Margaret Mutu of Auckland University came up with an overall cash compensation figure of 0.06% – that being the amount Māori received of the settlement to which they would otherwise have been entitled for raupatu land, in settlements up to 2001. Individual settlements ranged between 34% ($716,000 out of $2.1m for Hauai) to 0.01% ($170m out of $1.2b for Ngāi Tahu). How was the benchmark worked out? Of course, it was the compensation paid to a Pākehā farmer whose land was returned to iwi as part of a settlement. This is documented in Ranginui Walker’s Ka Whawhai Tonu Matou.

          Anyone who thinks Māori have been riding high on the pig’s back off treaty settlements, given what they lost, has been blinded by the redneck revisionists. It’s beneath contempt, and should be beneath the left.

          L

  5. Walter 5

    As much as I’d like to see national crash and burn on this one – I’d rather see them pull it off, satisfying both Maori and ‘the rest’ in one go.

    In fact – what a good time to re-visit the deal, Johnny is pleading broke (so not too much compensation on the table) – but really wanting to pull off what Helen couldn’t (so motivated to get a win-win). Good timing for the MP too – Tariana goes out on a win (of sorts), and the MP shows its constituents that it can finally ‘get something’ for them.

    However, a symbolic win won’t satisfy some MP supporters, but I doubt that small group will ever be satisfied anyway. Pita knows this so will take what he can get.

  6. toad 6

    gobsmacked said: Therefore, the government should just repeal the Act, and let the courts decide. But are they willing to do that? So far, the signs are unclear.

    The Ministerial Review does not recommend that as a preferred option:

    Such a process is likely to be protracted, laborious and expensive and could result in an unmanageable patchwork of litigation. We do not see that having rights in the foreshore and seabed decided by the Common Law rules of Native or Aboriginal or customary Title or by the precedents and approaches of the Māori Land Court would facilitate our overall goal of seeking a reconciliation between competing approaches to the foreshore and seabed.

    I agree.

    • Maynard J 6.1

      “The Ministerial Review does not recommend that [letting the courts decide] as a preferred option”

      “I agree.”

      Yet it was a ‘legislative low point’ for Labour to prevent this going to the courts.

      So what should they have done? (that is not a smarmy question, but a genuine one – what do you see as the right course of action?)

      Edit: I believe Gobsmacked touches and elaborates upon this point.

  7. Tigger 7

    Look, I know how to solve this: referendum!

    Tariana wouldn’t complain I’m sure. She was happy to let us have a referendum on the issue of Civil Unions so why not this similarly divisive issue? She even voted against Civil Unions, undoubtedly because of her utter faith in referendums – clearly if the majority think something then it should be law. Let the people speak!!

  8. gobsmacked 8

    Er, so going to court is a basic right cruelly denied … and then suddenly morphs into a laborious, expensive process, best avoided? Bizzarre.

    From Hansard, shortly before Cullen retired:

    Hon Dr Michael Cullen: Is the Minister aware that the Act provides for access to the courts in terms of both territorial customary rights and specific usage rights?

    Hon Dr PITA SHARPLES: I am aware of that. But territorial customary rights are nothing compared with the customary rights that had been handed down generation after generation after generation that that member cut off. (my emphasis)

    ***

    So, what rights will now be restored, if we exclude the “day in court” and compensation?

  9. Red Rosa 9

    That elusive bod, the ‘average voter’ will look at this issue similarly, Eddie.

    If the FSA does not give Maori what they want, how much do they want? And what will it cost? And where does this leave me?

    So far it has all been shadow boxing. But the questions being asked by Peters and Dunne can’t be avoided for much longer.

    Key will soon have to front up, with some serious answers, on one of the trickiest issues for a long time. The last government gave it a damn good try. Now the ball is in his court.

    We will watch with interest.

  10. ak 10

    Great opportunity for Labour here. Agree to work with NACT and the MP for a cross-party solution, but seize the initiative and push that envelope a little harder.

    With the tories and the MP desperately trying to dampen things down (with press assistance), and Winnie desperate to make hay that no one really wants, why not transcend the whole race debate and push for free public access to all the foreshore and seabed – including that currently locked up? Legislatively tricky perhaps (and excluding ports, sanctuaries etc), but not impossible.

    With NACT , MP and the redneck block all currently gushing about customary rights and guaranteed access, how about one law for all – including the handful of wealthy pakeha keeping us off a big part of all our beaches?

  11. Tom Semmens 11

    Labour in government knew it could not risk allowing Maori their day in court lest they win. The Foreshore and Seabed has all the ingredients to become an explosive issue, because it has the potential to waken a sleeping dog – namely a clash between Pakeha nationalism and Maori nationalism.

    For all their lip service on ANZAC day and the like, Our establishment elites of all shades loath and fear the potential power of nationalism, and for good reason – if there is one lesson we can draw from the 20th century, it is if unleashed Nationalism will easily triumph over Capitalism, Globalism or Socialism.

    Key can’t have it both ways on this issue. He seems to think that if he agrees with the Maori party then does nothing that’ll defuse the problem. It won’t. If he cuts a deal with the iwi autocrats represented by the Maori party for ANY sort of property right then attempt to use a beltway consensus to shut down the resultant backlash then he will simply fail. It would – rightly – be seen as undemocratic stitch up between oligarchs distinguishable only by skin colour. Both mainstream parties would be losers if they colluded in such a thing – as Chris Trotter says, power would lie in the gutter, just waiting to be picked up. However, I fear that precisely this sort of backroom corporate deal, between the “right sort of chaps’ in suits who Key feels most comfortable with, is probably his preferred option.

    I think he was incredibly rash to have so early ruled out compensation as an easy and convenient option, because the Maori Party knows that it’s credibility – and political survival, given that Labour has decided to try and destroy it – is on the line.

    Labour as said little so far that it can’t backtrack on. I don’t doubt it’s inclination is to support some sort of deal. They still dominate the party vote amongst Maori after all. But Labour doesn’t have to state its position just yet. That’s the advantage of opposition. I imagine they are waiting to se the strength of the backlash – if any – before positioning themselves. National’s record in it’s first nine months shows it is quite capable of fucking it up itself, leaving Labour the luxury of time to seem how it plays out.

    • Why is it that everyone keeps saying that Labour denied Maori their day in Court?

      Section 33 of the FSA says:

      “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 the finding was made there was then a process whereby either a reserve management plan for the area could be completed or the Crown was obligated with the successful group to “negotiating an agreement as to the nature and extent of the redress to be given by the Crown” (s 37).

      So Maori could go to Court to get a finding that had rights and if it was successful then negotiations would occur.

      It may be criticised on the basis that the ability to have the right ordered was watered down but the ability to go to court is clearly something that was preserved.

      • Lew 11.1.1

        micky, every time someone mentions the FSA extinguishing access to due process, you come up with this bullshit argument, as if this clayton’s right makes up for all the other rights which were legislated away by fiat and against the majority will of those who submitted on the act.

        And also ignoring the fact that not one single claimant has had anything granted under s33 – only one group (in FOUR YEARS of trying) got a scheme set up under s96.

        Section 33 quite clearly and explicitly does not constitute an argument against the assertion that Mãori were denied due process by the FSA. Try another line of argument, if you can find one (which you can’t, because there isn’t one).

        L

  12. toad 12

    Drako T Bastard said:What the MP is asking for is to have a different set of rules based upon race and that is racism.

    No, that’s actually what Labour and NZF did with the Foreshore and Seabed Act. That Act nationalised all foreshore and seabed that was or may have been subject to customary Maori title. However, that which was under private (largely non-Maori) fee simple title was left untouched.

    That is where the racism (different set of rules based on race) first came into it.

    • Draco T Bastard 12.1

      as I understand it, private title in New Zealand has never extended below the high tide mark.

  13. Doug 13

    Read Duncan Garner.
    http://www.3news.co.nz/Politics/DuncanGarnersBlog/tabid/1134/Default.aspx
    Excerpt.

    If Labour wants a shot in 2011, I suggest Goff grab Trevor by the neck and give him a smack in the chops – if he won’t then at least get Tau Henare to throw in the peoples elbow.

    Mallard is seriously affecting Labour’s future chances of having any decent relationship with the Maori Party. One Maori Party MP this told me this week, “Trevor can get f….. and so can Labour in 2011.”

    • gobsmacked 13.1

      So? The Maori Party are supporting right-wing policies. Labour oppose those policies. Why should they give the Maori Party a free ride?

      The “decent relationship” in 2011 that Maori Party MPs should focus on, is the one with their own voters.

      What are they in Parliament – and in a conservative coalition – for? What have they achieved? A review of the FSA leading to … no real change? And …?

      Nobody seems to have an answer, except “mana”. AKA, “baubles”.

      • Tigger 13.1.1

        Gob – you raise a point often overlooked. The Maori Party are deeply conservative on a range of issues and the fact that they appear to fit so neatly with ACT and National is further proof of that.

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