The Right and the foreshore and seabed deal

Written By: - Date published: 1:33 am, June 19th, 2010 - 14 comments
Categories: business, foreshore and seabed - Tags:

We know that the foreshore and seabed deal does not do what the Maori Party was established to achieve but, almost paradoxically, it may end up giving iwi some powers that will seriously anger non-iwi business.

The foreshore and seabed will remain in Crown ownership, taken without having being purchased from its previous owners. Those former owners, the iwi, will not be able to got to court and win back full title. Instead, they will be able to win customary title, if they can prove continuous exclusive use of the territory since 1840 – a tough standard that National doesn’t think many iwi will be able to achieve over much of the foreshore and seabed.

But the Maori Party is trying to convince its backers that large swathes of the foreshore and seabed will be won back and the rights that will be won are meaningful. Of concern to business are the development veto right and mineral rights. Here’s the NBR’s take under the title ‘Business beware Maori sovereignty landing on a beach near you’:

…Included would be a right to permit activities the veto-wielding power that underpins legalized extortion in rent-seeking without legal recourse to challenge denial of permission.

Local authorities, the Minister of Conservation, the Director-General of Conservation, and requests for foreshore and seabed use or development consents by business interests could be vetoed or simply consigned to limbo by coastal Maori with customary title without any legal redress proposed in the RFSA.

Indeed, coastal Maori tribes endowed with customary title will be allowed to make things up as they go along:

‘When giving, or refusing to give, consent there would be no obligation on the coastal hapu/iwi to make a decision based on criteria or restrictions set out in the relevant legislation.’

‘As with the ‘right to permit activities’ award, the decision of the coastal hapu/iwi to give or refuse consent could be made according to a Maori world view, on grounds which are not covered by the relevant legislation’ (p. 41).

New Zealand’s businesses can hardly be expected to derive much benefit from National setting up a regime of unelected, unaccountable coastal Maori tribal sovereignty for this is what the RFSA’s customary title really proposes.

Now, I say fair enough. It’s really their land, so they should have the right to exclude development on it if they want. And the same goes for mineral rights. But business is deeply worried. The realisation is dawning that wherever iwi can get their customary rights recognised they’ll be able to act as landlords. The veto power and mineral rights will be used to extract rents from businesses. From the business perspective, a new layer of taxation has been imposed based on ancient history… and we know how much the buggers hate tax.

It’s all a bit confusing, the foreshore and seabed deal both doesn’t give iwi what they are after and is seen by businesses wanting to undertake activities like aquaculture, tourism, and undersea mining as imposing an unknown and possibly very large tax from an unaccountable power. This isn’t helped by Chris Finlayson talking out both sides of his mouth – saying that the new deal is symbolic on one hand, and saying customary title is ownership on the other.

Also of concern for business will be the ‘universal recognition’ awards announced earlier this week. These are the second ‘concession’ to the Maori Party that Eddie predicted. There are no details but we’re told that iwi will be able to have their mana over tracts of the foreshore and seabed recognised by court order without needing to meet the same tough standards required to get customary title. It’s an ambiguous concept. National will want its base to see recognition of mana as mere symbolism but to Maori mana is not just a nebulous idea of ‘respect’ and ‘dignity’ it is power, the ability to control the real world. It’ll be interesting to see which definition wins out, but business will be very worried about the implications.

More fuel for the Country Party?

[I wrote this the other day. Since then, the Herald’s editorial has given an account of the rightwing concerns]

14 comments on “The Right and the foreshore and seabed deal ”

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  1. ghostwhowalksnz 1
    19 June 2010 at 5:56 am

    Just been to a property on the North Shore, where its obvious that about one third of the water front edge has been taken from the estuary. Probably in late 50s or so. There may have been sand or mangroves but the ground was built up with topsoil with mud underneath. The tide would have covered it had there not been a low wall at the front.
    Customary rights pakeha style: we want it we take it.
    Theres another feature to the MPs obsequious to Key and national. The threat to abolish the Maori party seats, its out of sight but could come back at any time. Would Key have the velvet glove over the fist of the reactionaries ? You bet.
    So any time Harawira or Sharples make waves or threaten to walk, then Key would say we would indroduce legislation and go into the next election to get a mandate to pass it.
    Sharples and Turia are modern day ropa for the Key Government

  2. tsmithfield 2
    19 June 2010 at 8:18 am

    You seem to be contradicting yourself here Marty.

    On one hand you’re arguing that Maori have only gained token rights with the scrapping of the FSA, so the whole thing is a crock and Maori have been conned.

    On the other hand you’re arguing that they have gained immense power and will be able to extort large sums from businesses wanting to utilize those areas where Maori gain customary title.

    • Marty G 2.1
      19 June 2010 at 10:49 am

      I’m arguing that the Maori Party and iwi didn’t get what they set out to get but what they did get will be very worrying for business.

  3. vto 3
    19 June 2010 at 9:16 am

    Yes well it will be interesting to see how it pans out. Business people will simply walk away if the standard margins are not available due to excessive ‘rents or taxes’. It’s very simple.

    I would suspect also that you may simply see all of those business / capitalist tendencies so decried on here leaking out through the pores of iwi when they start getting into it.

    I hope it doesn’t become a problem. I suspect it wont. One good thing about such rights is that it will tend to keep the capital and income in NZ rather than drifting away across the seas….

  4. Jenny 4
    19 June 2010 at 11:19 am

    Weirdly VOR a conservative Labour Party supporter on this site, agreeing with an earlier post from Marty G. that the Labour Party will probably support this legislation on the grounds that it is hardly different from Labour’s legislation. Is now saying that it should be opposed if it gives veto power over the exploitation of the Seabed and Foreshore to Maori.

    I seriously doubt that this right wing motive for opposing this legislation would go down to well with Maori members of the Labour Party caucus.

    Typically, in his current post Marty G. also seems to be taking the same negative line, unquestioningly assuming that Maori will use their new power to fill their bank accounts, rather than to protect the environment.

    I agree that big business will try and bribe Maori to get their way over exploitation of the Marine environment, but to automatically think that Maori, who after all claim a special relationship with the land and the environment, will automatically turn this into an income stream or “tax” as Marty G. claims, exposes more how Marty regards Maori than anything else.

    • vto 4.1
      19 June 2010 at 11:27 am

      ” Maori, who after all claim a special relationship with the land and the environment,”

      That may well be claimed by us/them, but does anyone give it any more credence than most everyone else born to these islands???? Surely a more mature approach to this particular claim is rising.

    • Marty G 4.2
      19 June 2010 at 11:28 am

      “Typically, in his current post Marty G. also seems to be taking the same negative line, unquestioningly assuming that Maori will use their new power to fill their bank accounts, rather than to protect the environment.”

      No.I’m saying that business will fear that. Are you watching The Nation right now? Two business commentators talking about exactly these fears.

      • Jenny 4.2.1
        21 June 2010 at 6:04 pm

        Marty in answer to your question. No I’m afraid I wasn’t watching The Nation. But at your suggestion I have since, here.

        I thought the comment by Te Ururoa Flavell near the end of this piece, that the Coalition Agreement with National, was only up until the elections, was telling.

        It seems to me that the Maori Party are signalling that, were they ever given the choice, they would rather support a left leaning administration than a right leaning one.

        This bodes well for a Labour led administration replacing a National one, next year.

        Hoo ray!

    • The Voice of Reason 4.3
      19 June 2010 at 11:49 am

      “VOR a conservative Labour Party supporter”.

      You clearly know fuck all about me, Jenny. I’m actually on the left, as my many comments here amply demonstrate. Don’t let the name fool ya.

      I’ve tried to be ‘above the line’ in my exchanges with you. I’ve done my best to talk to the topic, not the person and while I admire your tenacity over the GST on Food debate, which actually changed my opinion, you leave me cold in the impossible task of spinning a conservative, nationalist and occasionally racist party as part of the left.

      “Is now saying that it should be opposed if it gives veto power over the exploitation of the Seabed and Foreshore to Maori.”

      Nope, never said that. But I’m not going to lower myself to calling you a liar, Jenny. You are simply reading too much into what I did say, which is this:

      “I’m in favour of iwi getting a fair share of the riches, but it does concern me that there appears to be no framework to how deals might be done. I suspect that might be recipe for conflict or corruption, and, at least, will require further legislation.

      So, I can see the left in parliament proposing amendments to new F&S bill to clarify how business can and should be done in areas such as mining or oil exploration. And what an appeals process might look like if a proposal is turned down by Iwi. Potentially, that could mean the left votes against the sections of the legislation or maybe the whole thing. Or just go ‘meh’ and vote for it and wait to see how it turns out.”

      I do not say that F&S mk2 ‘should’ be opposed by the Parliamentary left, merely that it ‘potentially’ might be in part or in whole, because of the ‘veto’, which is vague, open to challenge and likely to make a lot of lawyers very, very rich in the foreseeable future.

      Ma te wa.

      • Jenny 4.3.1
        19 June 2010 at 5:53 pm

        So VOR you think the Maori Party is only “occasionally racist” now.

        Whether you admit it, you have moved your position after all.

    • Zorr 4.4
      19 June 2010 at 12:03 pm

      To say that Maori have “a special relationship with the land and the environment” would be right as long as you are remembering that they made a concerted effort to make the Haasts eagle extinct as it was competing with them while they were driving the moa to extinction.

      I am not about to say that Pakeha have any better record – but Maori claiming they are better stewards of the land still needs to be proven.

  5. ianmac 5
    19 June 2010 at 12:34 pm

    It is very interesting that the Agreement is so full of varied interpretations. Is that deliberate do you think? The general population (me) just know that an Agreement has been reached which cancels the 2004 S&F Act, and replaces it with one which may give more control to some iwi which may include veto and rights to develop commercial operations, like aquaculture. It was aquaculture which started the whole problem in the first place pre 2004.
    Devil in the detail?

    • Marty G 5.1
      19 June 2010 at 1:29 pm

      definitely. Ambiguity suits both National and the Maori Party. Let’s them promise contradictory things to their bases. But good politics is not always good policy. At some point this will have to resolve.

  6. Jum 6
    19 June 2010 at 7:46 pm

    Maori don’t nor ever did, own the foreshore and sea bed. Nor does any other sex, creed or colour. But greed will always triumph no matter what sex, creed or colour you are by the sound of it.