Watkin on Foreshore & Seabed
Tim Watkin at Pundit looks at what to expect:
First, Maori will be wanting a single, national settlement, but one that can be negotiated hapu-by-hapu. It’s extended family units rather than whole iwi that have the strongest connections to this or that part of the coastline; that’s where the legal relationship should be defined.
I think Tim missed a not before “a single, national settlement.
A hapu based approach is sensible, as under the common law, you have to show customary use.
Next, there’s little chance of Maori winning simple fee title – at this stage at least – over the foreshore and seabed they say has belonged to them since humans first arrived on these islands. But then most Maori aren’t demanding that. Maori ‘ownership’ will be restricted to guardianship; they won’t be able to sell or buy the land. It will be held in some form of customary title that is inalienable.
And there was very little chance of a court granting simple fee title. One reason Labour did not need to panic and legislate.
How might they do that? One idea that I’m told has been part of negotiations – and I’ve had this from several sources – is ‘tipuna title’ (tipuna meaning ancestor). That is, the foreshore and seabed in question would be ‘owned’ not by anyone living, but by a hapu’s primary ancestor. That way it can never be sold. However it’s also been suggested to me that National may have ultimately poured cold water on the concept.
That could be interesting. Some may say this is all just symbolism – but symbolism can be incredibly important.
For one Maori friend I spoke to a few months ago spoke with real feeling about the relationship he and his family have had with an estuary for more than 600 years; they just want that relationship to continue. They would never sell. Indeed, rather than sell, they may exploit and develop. As I wrote a few months back, it’ll be interesting to see how the government deals with the issue of commercial development of these natural resources.
Commercial use is part of what drives this. Who gets to farm for mussels etc?
Which suggests that one of the most surprising things to stem from this ‘repeal’ could be just how little the law actually changes. While fundamental new interpretations will be needed, everyone involved will be keen to ensure as little political and legislative upheaval as possible.
It is possible the law changes will not be mammoth. But there is a difference between a law change negotiated in good faith between two parties, and a law change unilaterally announced three days after a court case has been lost by the Govt.
November 2nd, 2009 at 10:34 pm
Expecting red neck knee jerk comments to appear criticising you for supporting the very idea of coming to a reasoned position.
However hopeful this will be done well, would be fantastic if National could be responsible for undoing the huge wrong which Labour did when it panicked, would be great.
Here is to hope.
November 2nd, 2009 at 10:41 pm
DPF: “And there was very little chance of a court granting simple fee title.”
Ummm… wasn’t that a bullshit Labour line you’re recycling. For a little clearer perspective:
Tribunal Report on the Crown’s F & S Policy: “The policy underestimates the number and quality of the rights that we think are likely to be declared by, in particular, the Maori Land Court under its Act. We think that the Maori Land Court would declare that customary rights exist, and at least sometimes these would be vested as a fee simple title.”
Joe Williams, Chairman and now High Court Judge specialising in Maori issues in the High Court.
[DPF: Well we will never know now, but the hurdle set by the Court of Appeal was considerable]
November 2nd, 2009 at 10:43 pm
We are walking into new territory here. Perhaps with destiny also, and maybe National will forge a new relationship with Maori based on giving maori an economic base instead of access to welfare which is the settlement Labour reached with Maori. I think John Key senses this but it is an evolving concept that started with Jim Bolger and Doug Graham.
November 2nd, 2009 at 10:57 pm
[DPF: Well we will never know now, but the hurdle set by the Court of Appeal was considerable]
That may be so, but my post shows how much you (and probably much of National) underestimate what Maori feel they have lost, far more than one or two fee simple titles to a couple of stretches of beach. Muriwhenua, for example, suggest most of their Coastline could be converted into fee simple title, including 90 Mile Beach.
November 2nd, 2009 at 11:01 pm
DPF: “It is possible the law changes will not be mammoth.”
Only if Maori get shafted again.
November 2nd, 2009 at 11:23 pm
Personally My message to John Key is that he has got it totally wrong as I am not after guaranteed access to the beaches as I own the beaches with all my fellow New Zealanders.
We don’t need guaranteed access as we all equally own them and the foreshore. As long as we carry the NZ passport we all are equal. You try to change that at your peril.
In fact if you do that, I as a New Zealander want you and all your caucus to resign.
You are not able to give any thing of ours away without our permission (contrary to what TVB and others may think).
This isn’t about making deals but is time to live out the phrase One law for all.
[DPF: One law for all means you do not pass a law to stop Maori from being able to go to court]
November 2nd, 2009 at 11:33 pm
I don’t think Tim forgot a “not.” It reads logically the way it is. But we better ask him
November 2nd, 2009 at 11:49 pm
We could always recognise the wrongs of the past, invest Maoridom with “fee simple” over the whole country, and renegotiate
November 3rd, 2009 at 2:05 am
MIkeNZ – You are aware that a large proportion of the foreshore and seabed is privately owned?
November 3rd, 2009 at 6:17 am
Nero fiddles while Rome goes up in flames.
Key’s government should be concentrating in making fundamental changes to our welfare system, limiting the DBP, making bludgers work for their benefit, opening up ACC, reforming taxation, fostering the creation of small business, and so on. Instead, Key is offering an olive branch (and the possibility of pecuniary gains) to the racists (of course, the National Party depends on the Maori Party for political survival.
In summary, another victory for the riders of the gravy train.
Neville Chamberlain would be proud of John Key.
November 3rd, 2009 at 6:59 am
..what Manolo said..
November 3rd, 2009 at 7:53 am
I’ve said it before and I’ll say it again, the best course of action New Zealand is that in 2012 every person in this country enrolls onto the Maori electoral roll.
November 3rd, 2009 at 8:04 am
How nice of Neville to say that I (as a non mowree) will not have to beg some local elder to visit the beach.
How nice of Neville to say that he and he alone will make sure that I have access to my birthright.
As MikeNZ said at 11.23pm it is not Key’s to guarantee, I was born here, nobody is going to tell me or my family when I can and cannot go to the beach, how dare Neville take this “heroic” stance, how dare he cast himself as the ‘saviour” of non Mowree beach access.
It is now clear that Key will stop and nothing to ensure he retains the reigns of power, the man is a disgrace.
November 3rd, 2009 at 8:08 am
yes Dave
Thanks I am aware of the complications of the position, which in no way detracts from nor ameliorates the post in any way.
As that wasn’t the purpose of my post
What’s it like in your part of the woods today?
November 3rd, 2009 at 8:14 am
I think the idea of giving title (or whatever) to “the ancestors” is crazy. Every time anyone in officialdom gives credence to belief systems (whether it is placating a taniwha for a resource consent or worrying about how close a business operates to some god botherers) its bad for reason.
November 3rd, 2009 at 8:20 am
Coastwatch will get pretty boring then.
November 3rd, 2009 at 8:44 am
Claimants are going to go too far and then there will be a backlash and from then on they will get nothing, wonder if they have got the brains to work that out?
November 3rd, 2009 at 8:49 am
If only ACT were as good as getting their manifesto implemented as the Maoris.
By my count the Maoris have 29 of their policies implemented and ACT has 0
http://www.nightcitytrader.blogspot.com
[DPF: ACT in fact opposed the Foreshore & Seabed law on the grounds that it was a trampling of property rights]
November 3rd, 2009 at 8:52 am
My concern is that we’ll go with very small change to the law, and some obscure new construct like “ancestor title.” And that in 5 years time the courts will decide that actually means ownership, because the law will be carefully drafted to be as woolly as possible. And clearly the govt wouldn’t pass a law that actually granted no rights at all.
Far better that we pass a very clear law that provides for very specific rights. If those rights include the right to commercially exploit, so be it. And any right that we provide absolutely should be allowed to be sold. A large amount of the pollution around Lake Taupo comes from intensively farming land that would be better put to other uses. The ownership structure prevents sale, so the iwi go with the next best thing, which is intensive and polluting farming. These kinds of constructs create perverse incentives.
November 3rd, 2009 at 10:03 am
Ernesto misunderstands.
The MLC is a statutory creation its remedies are statutory it has no original jurisdiction; its purpose to make certain the owners of Maori customary land and convert that to title. Originally this was to facilitate alienation of that land.
The HC has a range of options for common law rights less that title.
The problem with the MLC is the limited range of remedies which involve concerting whatever the customary rights are into very high quality title.
It seems likely the Maori processed rights in the SB & FS that were less in quality than fee simple the essence of which is exclusive possession.
The common law equivalent of whatever existed at the TofW and prior to its extinguishment in the SB & FS Act and assuming it will be statutorily resuscitated on the repeal of the SB and FS Act, will therefore be less than fee simple. It will be based on the usufructary rights Maori had and updated to the modern context. But an updating will not be an increase in the basic quality of the rights (exclusive possession)
It will involve the right to exploit mineral wealth (not already precluded by statute) probably aquaculture (where it is not already subject to other statutory arrangements) but probably not fish over and above the rights already established as this has already be the subject of settlement.
November 3rd, 2009 at 11:18 am
Do you realise that about 30% of New Zealand’s coastline is in private ownership already? There are already beaches you cannot visit.
Here’s the source of my 30% claim: ARC
And here’s a brief account of the Far North mayor getting ordered off a beach: When is a beach not a public beach
November 3rd, 2009 at 11:47 am
“Do you realise that about 30% of New Zealand’s coastline is in private ownership already?”
And why would we want to put all of it into private ownership? Does white capitalist = bad and brown capitalist = good?
November 3rd, 2009 at 4:59 pm
Why no fee simple for Maori ? or is that reserved for foreshore owned by the Pakeha only ?
I have no problem with the crown owning the foreshore, but I would want to see all the foreshore go into crown ownership with no exceptions at all.
Would we hear bleatings from some about property rights ?
November 3rd, 2009 at 8:14 pm
“Do you realise that about 30% of New Zealand’s coastline is in private ownership already?”
Most of that 30% is land where the erosion has meant the foreshore and seabed has crept onto land held in fee simple estate. Over time then, if Maori own the land up to the foreshore, they can expect erosion to reclaim the title for them too over time.