No one will own the seabed and foreshore

The Gisborne Herald has reported that the Government has proposed that, instead of identifying an owner of the foreshore and seabed, new legislation would provide that no one owns, or can own, the foreshore and seabed. This area would be called a public domain, which should greatly please Peter Dunne. The proposal would recognise New Zealanders' rights and interests rather than being concerned with ownership.

Coastal Maori will be able to go to court or negotiate with government to have customary title and rights recognised if new government proposals are adopted. More here

NB discussion document is here and here [PDF]

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Goff’s Nationhood speech

Rather than do an immediate post on Goff’s Nationhood speech, I thought I’d wait rather than attack Goff for a racist speech that Shane Jones vetted before delivery.

What Goff appeared to want to do is open up a split within the Māori Party at the same time as divide a wedge between the Māori Party and National. He wanted to play the race card, but in a non-racist way. His speech was not racist like Brash’s 2004 Nationhood speech, but Goff pulls on the same strings, articulating a latent belief that Māori were getting special treatment at the expense of other New Zealanders.

Goff may be correct in calling the emissions trading scheme a “shabby “political deal, (twice), but it is a bit rich saying that it will harm New Zealanders for generations to come when he has said that Labour will repeal the ETS when in power, thus minimising that harm.

Goff attacked John Keys leadership, saying it would lead to a country with "one New Zealander turned against another, Maori against Pakeha". Yet Labour has led the way on this. In addition, it has now withdrawn an offer to create enduring consensus over the Foreshore and Seabed legislation.

Perhaps Goff wants to see the Māori Party destroyed - hence the hope of engineering that destruction - as he sees it as the only way Labour can form a government in 2011. Like Helen Clark before him, he could well be willing to reopen wounds in race relations to gain power, and use the race card to expose any rifts between National the Māori Party as they appear, in the hope that NZ First will come back in 2011. And that is a real pity.

Sure, the Treaty of Waitangi settlement process should not be used as a basis for privileged treatment of certain iwi, thus causing disagreement among Māori - but Goff’s speech was not exactly about kotahitanga either. His unsubstantiated implication was that Key’s lack of criticism of Harawira’s mofo comments was because he wanted to get this “shabby political deal” enacted.

Goff’s comments that the Foreshore and Seabed legislation that deprived Māori to go to court was ‘working well’ is contrary to Labour’s submission to the Foreshore and Seabed Ministerial review. It’s a U-turn in Labour policy. Warning that repeal would make ‘wounds fester’ was a politically irresponsible statement to make, given that it was Labour who did the wounding that initiated the formation of the Māori Party.

Labour still sees the Māori Party as the last cab off the rank. Now that the party is bleeding supporters who are looking for another cab; will they go to a party that is happy to exercise wedge politics to open up a boiling pot in race relations, ask questions and demand change in Māori Party leadership, or be politically apathetic.

Goff, in trying to articulate concerns about emerging problems seems unable to offer practical solutions to problems in race relations and unfair treatment.

But that’s what is needed now. Extending a narrative to touch a nerve for short –term exposure is not going to do much. Labour needs a new leader - and quickly.

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Indigeneity and the Foreshore and Seabed

One thing I, perhaps like Lew at Kiwipolitico, realised when reading bits of the the ministerial review of the Foreshore and Seabed legislation, was that the review was conducted within principles of indigeneity with an explicit Treaty-based approach. Indigeneity is not exactly the hot topic within the National Party, but course having Maori academics as panelists on the ministerial review would have certainly pleased the Māori Party, as a panel that operates under the politics of indigeneity would recommend repeal of the legislation.

Indigeneity is greater than a bicultural partnership or a minority status: Indigenous rights predate citizenship and are often articulated by Māori to enhance a greater control over their lives and resources, including in the case of the foreshore and seabed. Māori don’t desire exclusive access to the beaches, but they do desire to have the same property rights as everyone else. This doesn’t mean the desire better ones, but you certainly wouldn’t blame them if they complain when they get lesser ones, particularly when a government enacts these lesser rights.

So, should the Māori Land Court have jurisdiction to consider title to the Foreshore and Seabed? And if it does, should customary (or even freehold) title be granted? That depends on whether you think "one law for all" means that all have the same rights. It depends whether you think the Treaty of Waitangi is a "legal nullity" or part of our unwritten constitution. To some extent, it depends on whether you think customary rights are inherent because of Māori first occupancy, rights that were not explicitly extinguished. And it’s clear what the report writers thought. In just 20 or so words into the report they said:

We consider the whole coastal marine area is subject to customary interests unless expressly extinguished by some specific act.

But customary interests were not extinguished by some specific act. As the Foreshore and Seabed Act legislates Māori as lesser citizens, it is to be repealed. At least that should be the reason for repeal. But according to this media report, some National Cabinet members want a clear explanation of Maori customary rights, or title, and how that might be interpreted by the courts.

They could start by reading something Doug Graham wrote a few years ago, or even the the Ministerial review, starting at page 151. And if they have read the review, then this "clear explanation" that is sought is either a good out to do nothing any time soon, they are seeking a solution that is not in the ministerial review, they don’t think the report is clear enough, or they want to avoid making a decision on customary title. No doubt John Key is "relaxed" about it all.

The ministerial review's first recommendation is to immediately repeal the Foreshore and Seabed Act. The second is to form a policy based on premise that the whole of the coastal marine area (the foreshore and the seabed) is subject to customary title unless it can be clearly shown that such title was not wrongfully extinguished. The third is to draft interim legislation recognising customary title. The rest flow on from that. National wants to please everyone. It remains to be seen how it will recognise iwi and hapu customary rights and do so. In other words, how it would promote equal rights for all.

Policies and legislation recognising indigenous rights do not have a habit of pleasing everyone.Perhaps this is why Attorney General Margaret Wilson said in parliament that although the Foreshore and Seabed legislation breached the Bill of Rights, due to it being blatantly discriminatory, this was "demonstrably justified in a free and democratic society".

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Brash admits Foreshore and Seabed law was a mistake

The man who brought you the " one law for all" and the Nationhood speech [PDF] that sparked a great deal of anger has has said that he believed National got it wrong when it opposed iwi being able to test their claim to ownership of the foreshore and seabed in court.

That inability for Maori to go to court was the injustice in the Foreshore and Seabed Act. Contrary to some opinions, Maori did not have ownership rights extinguished under the Act.

The 2004 Nationhood speech led to what Shane Jones describes as "inflammatory, divisive and extremely hurtful" debate around race relations and the foreshore and seabed legislation. The Foreshore and Seabed Act was written in response to a Court of Appeal case that suggested iwi able to prove continuous customary use of the foreshore and seabed might have a claim to freehold title.The act stopped Maori seeking title through the courts. even National screamed Maori Gain Control of the Beaches.

Now, it appears the Act will be scrapped.

Brash rejected the Treaty. Therefore, any person who rejects an important part of our constitution is never fit to be a leader of a major political party in New Zealand in this day and age, as they may end up leading the country.

It was a real mistake placing Don Brash fifth on the 2002 National party list to secure his entry into parliament.
update
So what next for the Foreshore and Seabed? Read Tim Watkin from Pundit. He has some good thoughts on this.

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Why it happened: The Foreshore and Seabed Act and subsequent ministerial review

Well I’ve still to finish reading the ministerial review of the Foreshore and Seabed Act 2004. But what is lost on many is how the Act and the subsequent review occurred and its relevance to Labour getting turfed out of office in 2008.

Firstly, the Foreshore and Seabed Act is not just about the Treaty of Waitangi, although Treaty principles and Articles were breached. It is more about the doctrine of Aboriginal Title.In a nutshell, this is simply is that indigenous peoples have some form of property rights, which are not affected by a transfer or acquisition of sovereignty. Such property rights are recognised by Article II of the Treaty of Waitangi. So when people say that the Foreshore and Seabed Act breached Article II of the Treaty (it breached Article III as well), that is reflected in the doctrine of Aboriginal Title.

Coastal marine areas were subject to this Aboriginal or customary title unless it could clearly be shown that it had been extinguished. Prior to the Ngāti Apa case that eventually led to the Foreshore and Seabed Act, Government policy was that Māori customary title had indeed been extinguished, whereas Māori asserted their ownership from first contact

The whole litigation started back in the mid 1990’s. The Marlborough District Council refused to give Ngāti Apa a mussel-farming licence to farm in their traditional area. The iwi eventually appealed through the courts, which ruled against a contention that statutes affecting the foreshore and seabed extinguished Māori customary title.

The Te Ture Whenua Maori Act 1993 gave the Māori Land Court jurisdiction to determine whether the foreshore and seabed was Māori customary land. The Court of Appeal in Ngati Apa said it could determine title, which led the Government to claim that Maori could take over the beaches to the exclusion of everyone else. It decided that allowing public access to the beaches would be better even if the Treaty is breached in the process. In reality, the worst case scenario is that a small number of iwi may have successfully tested their claim to customary title in court. However, rather than let that process run its course [and it is most unlikely that the Maori Land Court would have declared large areas of the foreshore be turned into freehold land, anyway] the government kneejerked, deciding to legislate to nationalise property rights to public areas of the foreshore and seabed just four days after the court decision.It intended to deny Maori the right to explore their common-law property rights in court – supposedly indissoluable rights - while allowing other New Zealanders to secure private ownership.

The Waitangi Tribunal found the Crown, in choosing to legislate, seriously breached the principles of the Treaty by failing to respect tino rangatiratanga, partnership, active protection.

Instead of amending the Te Ture Whenua Māori Act and the Resource Management Act, the Government incorporated other changes to those Acts into the Foreshore and Seabed legislation - despite select committee disagreement. The Act ignored the doctrine of Aboriginal Title as it failed to properly balance customary and public interests. It denied Māori options to pursue due legal process. It was discriminatory against Maori. Note: Don Brash was not the National Party leader when Labour decided to legislate.

The Maori Party was formed in the backlash of this Act. The ministerial review was part of the agreement between the Maori Party and National. The issue in the review was essentially whether the government unjustly expropriated Māori customary interests in the foreshore and seabed by vesting it public areas in the Crown, and by imposing restrictions on recognition of customary interest. It found that the government did just that and recommended the Act be repealed.

We have the Maori seats to thank for this review as without them, the Maori Party would never have been formed and the ministerial review would most likely not have occurred. We can also thank the Marlborough District Council for a National Government, as without its decision, subsequent events leading to the formation and rise of the Maori Party would also not have occurred,and we'd probably have a Labour-led Government with Labour holding most of the Maori seats.

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Foreshore and seabed law should be scrapped

No surprise. The ministerial review of the Foreshore and Seabed Act found the legislation to be deficient in that it was biased against Maori and failed to recognise property rights. The report is 160-odd pages and I`ll comment on it after I have read it. The Government will take a couple of months to formally respond, no doubt, but Minister Findlayson has said that public access to the beaches is not going to be an issue. Never should have been. Even if Maori customary title was to convert into freehold title, parts of the Foreshore and Seabed would not have to come under Maori control, and public access to beaches would never be restricted. As Tariana Turia has said:

Public access could have been protected previous to this legislation though using the Te Ture Whenua Maori Act and the RMA. We didn’t need to have a piece of legislation that took away the customary rights of hapu to enable people to have those access rights – they are there in law and New Zealanders have right of navigation and access to all areas of the beach.

The press conference with leaders of the Maori Party is here.

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