Why National should vote for the Foreshore Repeal Bill at first reading
January 30th, 2007 at 8:53 pm by David FarrarIt does not look likely, but I hope National do decide to vote for the Maori Party’s bill to repeal the foreshore and seabed legislation passed by Labour and NZ First. In doing so, they should make very clear that they are voting for it at first reading only, and do not at all pledge support for beyond that.
it is worth recalling this entire problem was caused by Labour’s knee-jerk reaction to the Court of Appeal ruling. What the Government should have done is appealed to the Privy Council. They were about to abolish it so put politics ahead of good policy and refused to appeal, opting instead to legislate.
The court of appeal ruling set very narrow criteria for claims, yet left open the possibility that such a claim could go all the way through to full title, which could lead to previously open beaches (well up to high tide) closing.
Labour’s legislation basically did two things. One is it made it much easier for claims to be made against sections of the foreshore. That is why National and others opposed it. But it also legislated so such claims could not end up with a grant of full title. So it did potentially deprive some Iwi of their legal right to pursue such title.
In other worlds the legislation increased the breadth of potential claims, but decreased the depth they could go to. This left all sides unhappy.
Now a simple repeal is no longer much of an option, as the ability to appeal the court ruling has now passed, and there are public policy issues around access to the foreshore.
But by voting for the legislation to go to first reading, one might be able to then negotiate some sort of compromise where perhaps the legislation is repealed, yet there is a commitment that in the event of any title being granted, access will be maintained for all of the public.
That would be a real win-win and a true partnership.
There are some precedents to this. In the Ngai Tahu settlement they had Mt Cook returned to them, and then in turn they gifted it back to the public.
The NZ Herald editorial believes that you look duplicitous if you vote for a bill at the first reading and then change your vote at a later reading. I disagree. I think the public are quite capable of understanding you support a bill initially to allow it to be considered, but only carry on supporting it if you are satisfied with the bill as amended.
Related posts:
- HoS on Foreshore Act repeal
- Review recommends repeal of Foreshore law
- National confirms support for VSM bill at first reading
- The Foreshore & Seabed proposals
January 31st, 2007 at 12:11 am
DPF – the ability to appeal the ruling has not passed.
Vote:January 31st, 2007 at 12:31 am
Sooner or later some govt will need the balls to simply state that there is only one Crown, and that it holds or grants title to all of NZ on behalf of all of the citizens of NZ. We dabble with notions of “aboriginal title” at our peril. There was never any such thing because prior to the establishment of the Crown all possession was merely a matter of conquest.
The main reason why the Maori signed the Treaty of Waitangi was simply this…that they had in the 40 years from 1800 onwards, managed by means of inter-tribal warfare to kill off over 40% of their own population. An astonishing genocide by any standard. That, combined with the unstoppable arrival of Americans and Europeans backed by a technically capable and dominant culture compelled the tribes to stop the blood-letting and face their future. It was in many ways a far-sighted and brave gesture to accept the British sovereignty as their own…not many peoples have ever willingly done that.
The chiefs who signed the Treaty knew what they were doing, they were stepping back from their purely tribal interests in order to stop the wars. What they retained was their “mana” and authority over their peoples. No sane social leader would have abdicated that responsibility to their people at such a turbulent and transitional time. What they gave away was to submit their unconstrained tribal sovereignty to that of a single Crown entity and the principle of one law applying to all peoples. For it’s day the Treaty of Waitangi was a remarkable document and stands as credit to all involved.
The simple fact is that the majority of people in this nation have long regarded the seabed, the beaches and the forests and alpine regions in the conservation estate as belonging to the Crown and held on behalf of ALL of us. We have been willing to acknowledge the special relationship some iwi have with some especially sacred areas such as the summit of Aorangi….but to most New Zealanders anything that approaches a claim of of full transferable title is going to always be out of bounds. All the major parties understand the political reality of this. Any govt that permitted any iwi to gain full legal title to the beaches would be crucified in the next election. Voting to support this Repeal Bill would be rightly seen as a cycnical and duplicitous bit of political chicanery. By all means…go ahead and do it.
Vote:January 31st, 2007 at 5:57 am
Redrag says: “Sooner or later some govt will need the balls to simply state that there is only one Crown, and that it holds or grants title to all of NZ on behalf of all of the citizens of NZ.” What are you, some kind of communist?
Vote:January 31st, 2007 at 7:39 am
Redrag: The majority of people might believe in the tooth fairy. That doesn’t make him real, or right. This issue was quite capable of being dealt with by the courts, and should have been.
Maybe Hapu and Iwi would have had their claims recognised, and maybe they wouldn’t. But to short circuit the legal process and confiscate putative land rights was outrageous.
But I don’t blame H1 for this. The fault rests with Don Brash who dog-whislted up a climate of hysteria. Labour then panicked.
I say repeal the legisliation and let the courts sort it out. We shouldn’t be afraid of the courts, just as we shouldn’t be afraid of the market.
Vote:January 31st, 2007 at 8:02 am
I hope National allow repeal the Act and then allow the courts to establish the legal position, though I can see it going all the way to the Supreme Court. The National Party should reserve its position that free public access is guaranteed and reserve the right to legislate. I trust Chris Finlayson will lead the National Party’s policy on this issue and I look forward to his intelligent contribution on this important issue.
Vote:January 31st, 2007 at 8:02 am
National would go up greatly in my estimation if this happened. I would have expected protecting private property rights against expropriation by the state would have been a no-brainer.
And yes, this is ultimately Brash’s fault.
Oh, and weren’t you defending the iwi/kiwi billboards, David? That’s a bit hypocritical I reckon.
Vote:January 31st, 2007 at 8:19 am
Isn’t it funny how everything suddenly is painted as being ‘Brash’s fault.’ If you try really hard you might be able to pin the current spate of murders on him as well.
In case you missed it, it is the opposition’s job to make the gummint of the day panic. Idiots.
Vote:January 31st, 2007 at 9:18 am
so..how’s it going then adolf..?
that “..making the gummint of the day panic..’ job/campaign…?
(didn’t you hear the collective yawn after that mound of tired rhetoric was pushed out by yet another national party pollie…?..that ‘key-speech’..?..)
populist/churchillian vows of support for beseiged postal workers issued in a thundering tone..and from under a darkened brow..and all..
(that one nearly had me on the floor..!..heh-heh..!..)
since muldoon..any national party pollie trying on righteous thunder/anger..has been but a pale parody..eh..?
key did nothing to challenge that ‘given’..
and as for ‘panic’..i think labour are barely awake..adolf..
and keys’ recent little squeak from the sidelines certainly hasn’t disturbed them from their somnambulist state…
and key has had a sweet (albeit short) run..eh..?
when parliament opens again…clark and cullen are going to monster him..eh..?
i reckon i’ll live-blog questiontime this year..
fans of blood-sports should tune in…
for the forseeable future..john key will be on the menu..
will be ‘it’…
phil(whoar.co.nz)
Vote:January 31st, 2007 at 9:24 am
I agree with Tim – I believe the original claim warranted the opportunity of due process.
This is now a golden opportunity to turn a very ugly episode in our history into a positive and hopefully final conclusion.
Vote:January 31st, 2007 at 9:32 am
David, I’m curious about your assertion that the new legislation makes claims easier than the Court of Appeal’s decision. The hurdles for claimants set out in the legislation strike me as pretty damned tall – possibly taller even than those the courts would have imposed. What’s your reasoning?
Vote:January 31st, 2007 at 10:00 am
The kiwi donkey has it:
“Maybe Hapu and Iwi would have had their claims recognised [via the courts], and maybe they wouldn’t. But to short circuit the legal process and confiscate putative land rights was outrageous.”
Last night I saw “Last Resort” at the Paramount in Wgtn. Its an amazing look at the foreshore act, the OIO, and rights to private ownership. go and see it tonight PLEASE – its last screening in Wgtn. It heads south for February – check http://www.cutcutcut.com for details.
This film is a must see for some depth on issues for which most kiwis relied on MSM stirred largely by Brash’s chest thumping.
as you were…
Vote:January 31st, 2007 at 10:13 am
Redrag says: “Sooner or later some govt will need the balls to simply state that there is only one Crown, and that it holds or grants title to all of NZ on behalf of all of the citizens of NZ.” What are you, some kind of communist?
ALL title whether freehold or leasehold is issued by the Crown, and ultimately rests with the Crown. When you purchase a freehold title, you obtain certain “property rights” to occupy and use the land, subject to many legal limitations…but you have by NO stretch of the imagination procured your own little sovereign micro-kingdom over which you exercise unlimited power.
We do rather tend to forget that it is the Crown that in fact exercises ultimate “ownership” over every square mm of all of NZ (including the surrounding economic zone), and that ALL title is merely devolved from that. This is how it has always been and there is nothing “communist” about it.
The issue at stake here is, should “aboriginal title” take precendence over the Crown? If we allow the answer to be yes, even over the smallest parcel, then we set the precendent that opens the door to ALL of NZ being returned to the iwi’s…without exception. We must keep that door firmly closed.
The scondary question arising is; should the Crown issue freehold title in recognition of “aboriginal occupation”? The answer here is yes, but subject to what is politically acceptable. In general the Seabed and Foreshore is NOT available to be sold as freehold title to all and sundry, and most NZ’ers would be very resistant to the idea that any more of it should be alienated from the Crown than already is….regardless of who is making the claim.
Vote:January 31st, 2007 at 10:28 am
> This issue was quite capable of being dealt with by the courts, and should have been.
Really? Like the Courts have dealt with the Arthur Thomas and Peter Ellis cases, to name but two?
The Courts don’t have the expertise to handle such a complex issue. At Ellis’s second appeal hearing, a number of affidavits were supplied from 4 experts, 3 for Ellis and one for the Crown. The court said it didn’t have the expertise to evaluate the experts’ opinions and said a commission of inquiry was the best forum to address such matters. Have we had such an inquiry into the case? No.
The Courts should stay well clear of the F&S issue. Besides, do you really think Maori would accept the Court’s decision if it told Maori to take a hike?
Vote:January 31st, 2007 at 10:30 am
“set the precendent that opens the door to ALL of NZ being returned to the iwi’s…without exception”
Any chance you could stop scaremongering mate, there is no chance of that happening and no-one serious is even asking for it.
Also what is this fixation over the rights of the “crown” this is not the 17th century and there is no divine right of kings any more. We are a democracy (albeit with some feudal hangovers) the “crown” is our servant not our master.
Vote:January 31st, 2007 at 10:42 am
Err… Ross, are you on smack?
“The Courts don’t have the expertise to handle such a complex issue”
You mean deal with property rights, something common law courts have been dealing with basically since their inception?
Courts are precisely the right places to thrash these things out. Knee-jerk, discriminatory, confiscatory law is not.
Vote:January 31st, 2007 at 10:44 am
Err… Ross, are you on smack?
“The Courts don’t have the expertise to handle such a complex issue”
You mean deal with property rights, something common law courts have been dealing with basically since their inception?
Courts are precisely the right places to thrash these things out. Knee-jerk, discriminatory, confiscatory law is not.
Vote:January 31st, 2007 at 10:45 am
I’m sure Labour would be careful to respect that distinction during the next election campaign – you know, the same way National did with it’s Iwi/Kiwi billboards?
Vote:January 31st, 2007 at 10:48 am
DPF, much as I agree with you sentiment, I would so look forward to National having their words and proposals from the legislation debate (“Why does this allow ANY claims?”) and prior flung back in their faces.
I know it’s in the interest of rational government for people to be allowed to change their mind. But it would still be funny.
Vote:January 31st, 2007 at 10:50 am
> Err… Ross, are you on smack?
Try addressing the issue, there’s a good chap.
Vote:January 31st, 2007 at 11:01 am
I did. How about responding?
Vote:January 31st, 2007 at 12:14 pm
> Courts are precisely the right places to thrash these things out. Knee-jerk, discriminatory, confiscatory law is not
Often the Courts don’t agree on issues. Often the Court of Appeal overrules the High Court. Sometimes there are miscarriages of justice, which I’ve highlighted. Sometimes the Courts will say that it has no role in developing policy, which is the preserve of lawmakers. So to rely on the Courts to address this issue seems somewhat naive.
Can you name one piece of land confiscated by the government under the F&S legislation? Or put another way, can you name one piece of land granted to Maori by the Courts that has been confiscated under the legislation?
Vote:January 31st, 2007 at 12:20 pm
BTW, Bill, you didn’t answer my question. If the Courts tell Maori to take a hike over the F&S issue, will Maori do the honourable thing and abide by the Courts’ decision?
Vote:January 31st, 2007 at 12:38 pm
I disagree. I have to give Cullen some credit on this: he did put the F&S issue to rest, even if he did so by running roughshod over Maori claims. Labour did so at its peril, by giving birth to the Maori Party, in order to retain middle New Zealand.
Strategically, I don’t think it makes any sense to open up this wound again. The Nats shouldn’t be sending the signal to middle New Zealand that it wants many more years of wrangling over the foreshore and seabed to entangle itself in the Courts for much longer.
Far better to let the law stand, and give Chris Finlayson a brief to negotiate an additional settlement as Treaty Negotiations Minister, along with all the other settlements he will need to conclude in a short time-frame.
This is a settlement issue. It is primarily a legal one. As long as you allow the Courts to make political decisions, for no other reason than that Parliament has decided not to provide clarity because it’s too politically hot, that is a recipe for disaster.
Vote:January 31st, 2007 at 1:25 pm
Ross:
It’s a little facile to say that Courts don’t agree on issues. That is why we have a three tiered appellate system (High Court, Court of Appeal, and now Supreme Court) to ensure the maximum possible chance of getting things right.
I don’t think your “miscarriages of justice” (I note one is only an allegation) in the criminal context add much weight. I might also note that it was hardly the courts’ fault that Thomas was convicted – the police planted evidence, it was admitted (the court didn’t know it was planted), and the jury convicted. Nothing in court can protect against that.
In terms of the Ellis case, again it doesn’t help you much because that case is really about the admissibility of evidence and expert witnesses (from my limited understanding). Not really relevant to detailed analyses of arcane common law and property rights.
No I can’t name a piece of land that was confiscated, because none were. What I can say, though, is that _rights_ were confiscated, arbitrarily, with no guarantee of compensation. The government’s reaction went disturbingly against the rule of law and the concept of a government under law.
In response to your latter question, about Maori reactions if the courts’ told them to “take a hike” (in your words), would they be happy? Probably not. However that anger is nothing compared to what was unleashed by the government’s legislative sledgehammer. The government’s response made things worse, not better.
Vote:January 31st, 2007 at 1:37 pm
The credibility of the witness is always a valid point of discussion.
You don’t get to shut people down because the question you on you ability to address the subject.
Especially here where 95% of the commenter’s are politically polarised and everything they say is based on their position.
The other 5% being people who got lost looking for the diaper fetish site.
Next time someone asks if you’re on smack just say no, I’m on P.
Vote:January 31st, 2007 at 3:15 pm
> What I can say, though, is that _rights_ were confiscated, arbitrarily, with no guarantee of compensation.
You might like to muse on the illogic of that statement. You’ve just agreed that no land has been confiscated yet you are wanting compensation. You come across as money-hungry. How are you going to cope when the gravy train comes to a stop? Try thinking about the future rather than the now.
The question that should be asked is: why would Maori want to own the F&S? I’m a Pakeha and even I don’t want to own the F&S. Why can’t you simply use the natural resources without attaching $$$ signs to it?
Vote:January 31st, 2007 at 4:31 pm
It is very big of Ngai Tahu to allow open access to Mt. Cook free of charge for the few who can climb it, unlike their cuzzies in the Rotorua area who on apon having Mt Tarawera returned to them immediately slapped an admissiion charge on the many who would be capable of climbing it.They set the charge so high that neither the underclass or the middle class could afford the admission.
Vote:January 31st, 2007 at 4:45 pm
When will the Herald employ someone to write their editorials who actually understands Parliamentary traditions, procedure and practice?
Better yet, just shut the hell up and let Audrey Young deal with the issues in her columns. Or at least consult with her before producing this nonsense.
Unless a party is vehemently opposed to the entire tenor of a Bill and has pledged publicly during an election to oppose even the raising of the particular issue (I can think of a handful of examples, all of them conscience matters like abortion, where this might apply) or it truly feels that the Bill is frivilous waste of time and money, it’s virtually anti-democratic to oppose the First Reading of a Bill.
Allowing a First Reading means the issue gets to be debated and the public (usually) get to have input via a Select Committee. It also allows, as DPF rightly points out, the party itself to have some input which it would otherwise be denied. Voting it down on introduction kills debate.
The Herald has a responsibility to educate the public on matters relating to democracy, not continue the process of dumbing them down on it.
Vote:January 31st, 2007 at 4:57 pm
…here where 95% of the commenter’s are politically polarised and everything they say is based on their position.
The other 5% being people who got lost looking for the diaper fetish site.
Bloody hell Murray, as was empirically proven by my score on the Australian Political quiz I “have significant areas of disagreement with each of the parties”. Same with NZ.
You’ve therefore just suggested I come here to indulge my diaper fetish. You couldn’t be more wrong. Actually Kiwiblog offers appalling coverage of diaper fetish news, and I’m still waiting for a reply to my email to Benson Pope asking for better URLs.
Vote:January 31st, 2007 at 6:54 pm
By the way, in response to some comments above …
I’m not sure that voting for this bill will *help* the National party. I just think it is the right thing to do.
Vote:February 1st, 2007 at 10:36 am
David, you were a little quick off the mark. National has apparently no intention of supporting the bill at its first reading.
Vote: