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The compensation that is and the compensation that is not

Written By: - Date published: 7:40 pm, July 7th, 2009 - 55 comments
Categories: maori party - Tags:

Key has claimed the foreshore and seabed issue is not about compensation.

Tariana’s answer?

This has never been about money says Maori Party co-leader Tariana Turia

“I am astounded and disappointed that some critics of and commentators on the report of the ministerial review panel have chosen to highlight the possibility that compensation may become liable under some circumstances.”

“From its very beginnings the foreshore and seabed debate has been about rights. Customary rights and legal rights – and the review report points that out,” says Mrs Turia. “It has never been about money and compensation.”

“The report points out how prejudicial the Foreshore and Seabed Act has been towards Maori, how it amounted to the biggest legalised ‘land grab’ the country has ever known. It talks about the need to recognise the customary rights of hapu and iwi in the coastal marine area, which amount to a property right. It also talks about the ‘interests of the general public’ in the coastal marine area and the need to respect that.”

“And yes it does talk about the potential for compensation. But let me ask the people who are criticising the report because of that aspect. Do they expect that the people who will lose their homes in the path of the new motorway in Auckland will be entitled to compensation?”

“So if Maori hapu and iwi lose their property to the government, should they not also be entitled to compensation?”

“But as I said at the beginning of this statement, this issue has never been about money and compensation. The forty thousand people who marched on Parliament weren’t looking for money or compensation. They were marching for their rights and that is why we in the Maori Party and they, will welcome the repeal of that awful law and we look forward to participating in the discussion to find a fair, logical and lasting way ahead.”

I don’t like the idea of anyone but the public owning the F&S but if Maori have been dispossessed of it they should be compensated.

My problem is I can’t tell if the Maori Party agrees with this or not. I may be missing some clever postmodern synthesis of paradox here but it seems that in Tariana’s view the matter both is and is not about compensation. Simultaneously. Can someone please clarify this for me?

Hattip: Maggie

55 comments on “The compensation that is and the compensation that is not”

  1. Zetetic 1

    With all the chaff taken out:

    “I am astounded and disappointed that some critics of and commentators on the report of the ministerial review panel have chosen to highlight the possibility that compensation may become liable under some circumstances… From its very beginnings the foreshore and seabed debate has been about rights… It has never been about money and compensation … yes [the report] does talk about the potential for compensation… if Maori hapu and iwi lose their property to the government, should they not also be entitled to compensation? …But as I said at the beginning of this statement, this issue has never been about money and compensation.”

    Unbelievable.

  2. toad 2

    IB said: I don’t like the idea of anyone but the public owning the F&S but if Maori have been dispossessed of it they should be compensated.

    I actually like the idea of iwi/hapu owning it, where it can be demonstrated their customary title has not been extinguished. Because that would be the just solution – the Crown never acquired it by any legitimate Treaty-based means – they did it only becasue they has the numbers in Parliament.

    But if it does revert to iwi/hapu ownership, we need to ensure that the customary title cannot be converted to fee simple title with the inevitable privatisation that would follow that as financial pressures are exerted on iwi/hapu.

    And if there is a good reason that a particular parcel of foreshore or seabed should be in public ownership, then I agree with you IB that those from whom it is nationalised should be entitled to compensation.

    • IrishBill 2.1

      Agreed. However I want to know what the Maori Party’s position is. Any thoughts?

      • Ari 2.1.1

        I imagine the Maori Party sees rights as far more useful in the long-term than compensation and would rather retain any rights it can for Maori than settle for compensation, even if it were on offer.

        I can’t say I’d feel any differently about any right of mine, so despite not really being able to empathise I think I’m generally supportive of their position.

    • ak 2.2

      But if it does revert to iwi/hapu ownership, we need to ensure that the customary title cannot be converted to fee simple title with the inevitable privatisation…

      Say he aha? Am I missing something or isn’t this an incredible and atypically patronising statement for you to make toady? Who’s “we”, palegreenface?

    • Toad

      I agree that the rights of iwi over the foreshore and seabed ought to be able to be recognised. If however these rights can be converted to exclusive rights to access of parts of the coastline then it ought to be able to be “nationalised”. If this happens then compensation should follow.

      This is a conventional situation, all land is subject to the power of state purchase. Why should the foreshore or seabed be different?

      I agree also that the “right” should not be able to be converted to title. Title is a European concept that is inappropriate in this situation.

      Funny thing is that the current Act arguably achieves this. The recognition of “rights” is a bit weak, negotiations were ordered rather than a legally binding decision but it was not that bad.

      National bitterly opposed it. Their current about face is interesting to watch.

      • Lew 2.3.1

        micky, the only people who think the FSA was ‘a bit weak’ are those who wanted the whole issue swept under the carpet in the name of a Labour electoral victory in 2005, or the whole thing thrown out for a National victory. It does as close to nothing to protect indigenous rights as it is possible to do without declaring alienation by conquest.

        As to the question of title: whether it’s an ‘European concept that is inappropriate in this situation’ is for Mãori to decide. It seems they’ve decided that way, but the point remains: the problem with the FSA, beyond its egregiously expropriative nature, is the impression that it is for the Crown, of Labour, or some other bunch of well-meaning but morally hazardous honkeys to decide what is best or most appropriate for Mãori. It ain’t so. History has shown it never was.

        L

        • mickysavage 2.3.1.1

          Lew

          I have been reading parliamentary debates this evening. This from Michael Cullen at the third reading of the FS Bill,

          “What is in this legislation is not an invention of the common law test for territorial customary rights or aboriginal title; it is a codification in statute of the best expert advice we have had as to what those tests should be. In other words, they are the very tests that the High Court should have had to apply if somebody had applied to that court under its inherent jurisdiction, and the very tests, in combination with the tikanga test, that the Māori Land Court should have had to apply if there had been an application for customary land status.”

          The debate really calls out for technical analysis and understanding. I agree that the impression is the problem but I struggle to know what to do about this.

          • Lew 2.3.1.1.1

            micky,

            they are the very tests that the High Court should have had to apply if somebody had applied to that court under its inherent jurisdiction

            Except that this isn’t the case. The onus was always on the crown to prove alienation (by sale, gift, conquest, ‘abandonment’, or whatever). In any case, Cullen was simply gainsaying the Court of Appeal’s judgement, which had already been made to the contrary.

            L

            • mickysavage 2.3.1.1.1.1

              Lew

              When you get expert advise that the law is x what right do you have to ignore that advice and say the law is y?

              This really is the nub of the problem. The disgruntled had a clear view of what the law was, the Labour Government had clear advice that was contrary to this.

              They tried to work out a middle position. The nats at the time lambasted them for it.

              Current (ill informed) statements suggest they got it wrong, if so the Nats under Brash got it doubly wrong.

            • Lew 2.3.1.1.1.2

              micky,

              When you get expert advise that the law is x what right do you have to ignore that advice and say the law is y?

              Do you really, genuinely think Labour got advice which said “legislate now to overrule the Court of Appeal”? No, they decided to legislate and then asked “since we’re legislating to overrule the Court of Appeal, how would we best go about doing this?”. You asks your stupid questions and you gets your stupid answers. Also contrary to Labour’s protestations, the law didn’t break any new ground; as the FSA review panel stated:

              The main point is that the Ngāti Apa decision did not introduce anything radical or new. Rather, it restored the law to what it had been until an aberrant court decision in 1960 confused the legal landscape.

              So, we’ve got duelling expert advice. I’m picking the advice of a panel of eminent indigenous rights, land law and tikanga Mãori scholars over anonymous advice from a ministry given to a government already intent on legislating away jurisdiction.

              Current (ill informed) statements suggest they got it wrong

              If you consider almost everyone outside the Clark government who knows the second thing about this issue to be “ill informed”, then I guess you’re right.

              if so the Nats under Brash got it doubly wrong.

              No objection here, but if “we weren’t as wrong as the Nats under their most divisive leader in modern memory” is your only defence, I have to ask: why are you defending that position?

              L

  3. toad 3

    Sorry, IB – don’t rally know.

    Hone has been a good mate of mine for many years (going back to Auckland University student days, He Taua, and the engineering students’ racist “haka party”). I think I know what his position would be – same as mine.

    Tariana, by contrast, is still trying to get over the way despicable way she was treated by the Labour Party, And she’s not doing it very well. I think it’s well past time she should put that in her past and move on.

    Mind you, Trevor Mallard is far from extending the olive branch, but seems to be trying to further alienate the Maori Party from the prospects of forming an alliance that could create a progressive left-wing anti-racist Government of Labour/Green/Maori parties after the next election.

    • Toad

      Agreed again (wow I should not make this a habit).

      Tariana ought to build a bridge.

      Also her intellectual firepower is not extraordinary.

      Hone Harawira has performed well. I never thought I would say this.

      • Nick 3.1.1

        How beautifully put “her intellectual firepower is not extraordinary”, beggars belief Turiana gets an audience.

      • Ari 3.1.2

        I’d say the Labour Party should start building a bridge too if they want Tariana to do anything. There’s no such thing as a one-sided reconciliation.

  4. Pascal's bookie 4

    Toad, re the concerns about conversion to fee simple and sale…

    is article two of the treaty no longer applicable:

    …but the Chiefs of the United Tribes and the individual Chiefs yield to Her Majesty the exclusive right of Preemption over such lands as the proprietors thereof may be disposed to alienate at such prices as may be agreed upon between the respective Proprietors and persons appointed by Her Majesty to treat with them in that behalf.

    Wouldn’t that mean that if they wanted to sell, crown gets first dibs?

    • toad 4.1

      That’s exactly where I was going PB.

    • But are the foreshore and seabed “lands”?

      Hence the problem.

      • Anita 4.2.1

        I think you’ll find the answer in the Māori version of the treaty. Quibbling over the meaning of the English version is pointless.

        • mickysavage 4.2.1.1

          Good point Anita.

          Article 2 of the treaty preserves to Maori “control and enjoyment of those resources and taonga that it is their wish to retain”.

          This is much wider than “land”.

          • Lew 4.2.1.1.1

            micky,

            Well, that’s still the English version. I think the custom Anita is referring to is the rule of contra proferentem, which holds that ambiguities be interpreted against the party who drafted them. Choice of language is the largest (and ugliest) such source of ambiguity possible; it is on this basis that the English version is generally subordinate to the Mãori version.

            L

            • Draco T Bastard 4.2.1.1.1.1

              Actually, under international law, which is based upon the same English laws that our laws are based upon, the English version doesn’t even exist.

              But, it still comes down to the question – did they actually hold the seabed and foreshore when the treaty was signed?

            • Anita 4.2.1.1.1.2

              Lew,

              Years ago I was told that there’s an established principle than in treaties between colonisers and indigenous people the indigenous language version takes precedent. I’ve always guessed it’s simply an extension of contra proferentem, but it may come from somewhere else.

            • mickysavage 4.2.1.1.1.3

              Agreed Lew and Anita that the indigenous version ought to overrule the English version, especially when (Henry Williams I think) told Hobson about the difficulty with the treaty and especially Article 2.

              The English version states that the Crown guaranteed to Maori “the full exclusive and undisturbed possession of their Lands and Estates Forests Fisheries and other properties”.

              Even the English version appears to stretch to cover foreshore and seabed.

              Lew

              “I’m picking the advice of a panel of eminent indigenous rights, land law and tikanga Mãori scholars over anonymous advice from a ministry given to a government already intent on legislating away jurisdiction.”

              Fine but I do not know how many times I have said this but the Act did not legislate away jurisdiction.

              Section 33 states:

              “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.”

              Sorry Lew this reads like a codification. Do you have any analysis to show that it is not?

              The Ngati Apa decision was not legislated away. It was affected in that public access to the foreshore was guaranteed. Compensation would then be payable. Claims of “theft” and “doing away with rights” are, with respect, over the top.

            • Lew 4.2.1.1.1.4

              micky,

              Section 33 doesn’t convey anything like the same rights as native title. It’s very weak, access to it is unreasonably difficult, and it doesn’t grant any/many useful rights in any case. See my more fulsome comment here.

              L

            • Lew 4.2.1.1.1.5

              Dtb,

              But, it still comes down to the question did they actually hold the seabed and foreshore when the treaty was signed?

              No, this question has been settled for decades by the Waitangi Tribunal. See here You might consider reading Wai 22 if you want to sound credible on this matter; it’s quite significant.

              L

            • mickysavage 4.2.1.1.1.6

              “Lew

              “Section 33 doesn’t convey anything like the same rights as native title. It’s very weak, access to it is unreasonably difficult, and it doesn’t grant any/many useful rights in any case. See my more fulsome comment here.”

              Well with all due respect the major problem with the debate is the that the phraseology used by most is somewhat sloppy.

              You previously said it “legislat[ed] away jurisdiction”. It did not. The jurisdiction remained to consider such cases. The remedy was affected but the intent was that breaches would result in compensation rather than rights being able to be enforced.

              And I am not surprised that there have been no applications to date. It seems that very few people know about section 33. Besides that is completely irrelevant. Whether or not a right exists does not depend on people exercising that right in Court.

            • Lew 4.2.1.1.1.7

              micky,

              I agree that the complex issue is made more complex by poor understanding, but the simple fact is that s33 (and the other ‘out’ clauses in the FSA) come nowhere near the rights of full native title, which is what the Court of Appeal found was potentially up for grabs. No matter how you slice it, no matter how you equivocate, the gap between the rights and remedies provided by native title and the rights and remedies provided for in the FSA were legislated away. That’s the bottom line.

              As for your last comment, arguing that the reason few groups have applied for recognition under the FSA because they don’t understand it – that’s delusional. The problem is that they understood well enough that the clauses were drafted such as to make it bloody hard to prove a case (by reversing the burden of proof), and to grant nothing but the most scanty rights to redress even in the unlikely event a claim was successful, and that such redress was to be enforced by a government who had shown such bad faith in drafting and passing the act that it wasn’t worth them bothering, and in most cases the path of least resistance was campaigning for full repeal of the act. That has since been proven true.

              This isn’t just some shit I’m making up – these are (some of) the findings of the FSA review panel.

              L

      • Nick 4.2.2

        My forebears owned water front property in UK, fished the sea out front, by Turianas logic we should lay claim to that seabed. Im in favour of it extending as far as Antarctica including NZ becoming my exclusive family property

  5. Pascal's bookie 5

    Not that for a second I imagine sale is on the agenda.

  6. CJ 6

    It doesn’t seem to me as though there is anything mysterious about the Maori Party’s position from Turia’s statement. She has said that the issue isn’t about money, it is about the recognition of Maori rights. But, if those rights are taken away, then compensation should follow. That’s pretty clear to me and seems to follow quite logically. What is not to understand about that position?

    • Draco T Bastard 6.1

      Of course it’s about money – as soon as the rights, if there are any, are up held they’ll be looking at ways to commercially exploit them.

  7. deemac 7

    I heard Turia and Sharples make contradictory statements on this issue – but that is hardly a new situation. Clarity would be helpful to the public but perhaps not in the political interests of the Maori Party. Just when it looks as if a mutually agreeable solution is in reach, politicians just can’t resist point-scoring – it’s a habit.

  8. gingercrush 8

    Seems to me the left just wish to play politics over this issue. Of course that is their right and its not like the right didn’t play politics in 2004 or 2005. But the idea that the Maori Party and the National Party are contradicting themselves is in my belief wish-making by the left. I don’t think many of you wish to settle this properly. You’re just wanting things to get stuffed up in some belief that will make it easier for you lot to get back into power. Speaks volumes about the desperation of the left at the moment.

    • Pascal's bookie 8.1

      No, it only speaks to what you reckon. Your entitled to your reckonings of course, but seeing your knowledge of what goes on in lefties heads is close to zip, and that’s all your reckonings are based on, the rest of us needn’t pay them much mind.

      JFTR though, are you saying that it is your belief that National’s position in 04 05 was purely politics; that they did not in fact believe what they were saying and were deliberately and willfully stirring up racial conflict, and denying Maori property rights that they knew in fact existed, and that you voted for them regardless of that fact?

      Oh my.

  9. ak 9

    Overheard on a bus:

    “But mind you, they are saying that anyone can still go there….and that they don’t want any money out of it or anythink – ”

    “So what the heck do they want then?”

    “Weeellllllll……just the right to go to court and all that, I think…..”

    “What the heck for?”

    “Ahhhh………weeeellllll, so they can prove that they don’t want anythink I suppose! heh heh heh……..heh”

    “Heh. heh heh heh”

    “Mmmmmmmmm………”

  10. Tom Semmens 10

    Lew said:
    “…As to the question of title: whether it’s an ‘European concept that is inappropriate in this situation’ is for Mãori to decide…”

    And therein lies the your consistent error and usual flaw – your refusal to recognise the demographic facts of New Zealand in 2009.

    To paraphrase Stalin “The Maori? How many votes have they got?”

    • lprent 10.1

      Ummm doesn’t sound like the man at all. Wasn’t it something like how many guns or armies ??

      • Lew 10.1.1

        Lynn,

        Yeah, armies. But the principle remains: might makes right.

        Except it doesn’t – it just makes ability.

        L

    • Lew 10.2

      Tom,

      To paraphrase Stalin “The Maori? How many votes have they got?’

      Nice to see a Marxist who’s honest about their principles.

      L

  11. burt 11

    IrishBill

    When you take away all the bluster and BS, any stance appears to be better than Labour’s was. I don’t get where you think you can claim some high ground on this. Key could flip flop and pontificate for months and that would be better than Labour’s angry elephant in the room.

    • IrishBill 11.1

      You seem to be confusing me for the Labour Party. For the record I never supported the disgraceful legislation (and behaviour) Labour answered the foreshore and seabed issue with.

      I was however a supporter of the Maori Party and want to know what their answer on this issue is. I’m hoping it is either that iwi get customary title or that they are compensated if it is lost. However they have made no clear statement of what they want.

  12. Tom Semmens 12

    lprent – do you not know what to “paraphrase” means? It seems one would struggle to imagine the authors of the Standard sitting about smoking Gitanes and drinking cheap vin ordinaire. The Standard needs to do something about the quality of it’s intellectual underpinnings.

    The actual quote was in relation to some complaint from the Pope, to which the ever-charming Mr. Stalin replied “The Pope? How many divisions has he got?” The point is that Lew can can sit in his bath in the morning and enjoy thinking through purity of his system, But relevance of his arguments to the real debate beyond his front door is a big fat zero.

    • lprent 12.1

      Paraphrase usually involves similar situations.

      There is a major difference between peaceful voting and spreading peoples guts all over the landscape, not to mention S’s other political habits. I was surprised to see you use it in the context of the local iwi/kiwi context.

      Perhaps you don’t understand the concept of paraphrasing?

    • Spectator 12.2

      That was a misquotation, not a paraphrase.

  13. Maggie 13

    I don’t think it matters finally what the Maori Party says or what it wants.

    We pakeha seem to have the strange belief that a political party can speak on behalf of an entire race. We would never believe the Nats or Labour can speak on behalf of all non-Maori but seem to be believe the Maori Party represents all Maori.

    The Maori Party can do a deal with the government that individual iwi could then ignore if they wanted.’

    As much as I dislike saying it I am rapidly coming to the position that a settlement imposed by legislation is the only solution and that maybe Labour got it right from the beginning.

  14. John 14

    When the foreshore and seabed was nationalised – lets say in 1840 – every little hapu lost something but they gained something of much more value – an equal share in every other little hapu’s foreshore and seabed. This was especially important given that foreshores were the main roads all over the country.

    Do we really want to reverse this decision now?

    What customary rights have been forbidden on the foreshore and seabed?

    I am voting NZ First over this outrageous attempt on the public estate.

    • Lew 14.1

      John,

      When the foreshore and seabed was nationalised lets say in 1840

      When the Germans won the Great War … oh, wait, they didn’t. Nor was the Foreshore nationalised. Nobody argues this. Not even NZ First.

      But hey, it’s a democracy. You can vote for whomever you like, no matter how misguided.

      L

  15. John 15

    The effect of bringing in British law was nationalisation.

    Everyone believed that the foreshore and seabed belonged to the country. Going back as far as I can remember and having lived and worked as a fisherman in a remote Maori area, no-one ever asserted anything different. Two statutes asserted crown ownership.

    No living Maori has lost anything on the foreshore and seabed. And I am arguing that whenever in the 19th century these vital transport arteries were nationalised the former owners gained as much as they lost.

    By the way, what “customary activities” are the proponents of hapu and iwi ownership interested in pursuing – and why aren’t they defined.

    Ethnic Maori nationalism is about as deplorable as other ethnic nationalisms – Sudetenlanders maybe. Lowest common denominator stuff but an easy way to set up politically.

    • Lew 15.1

      John, funny, I haven’t heard one single constitutional expert arguing this case. Not one. Not since Prendergast, anyhow, and his analysis has been thoroughly discredited for a very long time indeed.

      L

  16. John 16

    And after 100 years of Crown ownership, surely “customary” now means public ownership!

  17. Lew 17

    John,

    Not unless the crown can demonstrate that the land was alienated from its customary owners. That’s what the Court of Appeal found.

    L

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