HoS on Foreshore Act repeal
September 19th, 2010 at 11:00 am by David FarrarThe HoS editorial:
Attorney-General Chris Finlayson stayed away from the House as the first-reading debate began on the bill repealing the Foreshore and Seabed Act.
It was a gracious gesture: although the Marine and Coastal Area (Takutai Moana) Bill is in his name, he wanted Maori Party co-leader Tariana Turia to be first to speak to it.
It was a fitting acknowledgement of the role she played in wrenching the 2004 legislation from the jaws of history.
Which shows that one MP can make a difference.
Unfortunately, some try to depict the repeal as an act of surrender to Maori demands that ancient entitlements be honoured in modern law. But that is very far from being the case.
The 2004 act was a sledgehammer response to a Court of Appeal decision that had not “given” Maori anything: it had suggested that Maori might be able to seek customary title in the Maori Land Court to parts of the foreshore and seabed.
The Clark Government pre-empted that right; the act now before the House restores it. To quote Turia, it reopens a door that was slammed shut.
That is for me the key aspect – that Maori New Zealanders have had restored their right to go to court.
In any case, for those seeking customary title, the bar is set high: applicant iwi must demonstrate virtually uninterrupted exclusive use and occupation of the areas since 1840; areas to which title is granted cannot be sold; and free public access must be preserved.
Which is one reason why Hone Harawira is not supporting it. He thinks that the entire foreshore and seabed should be in Maori title. I believe the correct test is what the Court of Appeal set down – uninterrupted exclusive use and occupation since 1840.
Related posts:
- Agreement reached on Foreshore & Seabed
- Harawira on FSA
- Iwi on Marine and Coastal Area Bill
- Iwi now argue against property rights
September 19th, 2010 at 11:06 am
The 2004 act was one of the single most anti-democratic acts in our history and the refusal of Clark to negotiate, or even discuss the issue followed by her vicious smearing of anyone who dared oppose her were aspects of her personality that will forever be associated with her autoractic reign.
Vote:September 19th, 2010 at 11:20 am
Like that other piece of shameful legislation, the anti-smacking bill!!
Vote:September 19th, 2010 at 11:44 am
Another of our politicians most shameful efforts Dazz.
They long ago forgot that they wor for us, not the other way round.
Vote:September 19th, 2010 at 11:47 am
……..so Maori belligerantly seized land in 1839 is OK then…….I forgot that justice is a one way street
Vote:……..1840 is so important because you can point a finger at honky and scream “injustice”
……..1840 is the cheque book watershed year……..
……..anything before that doesn’t count…….
……..only Colonialists are culpable
September 19th, 2010 at 11:57 am
“Which is one reason why Hone Harawira is not supporting it. He thinks that the entire foreshore and seabed should be in Maori title. I believe the correct test is what the Court of Appeal set down – uninterrupted exclusive use and occupation since 1840.”
I think there a step before this that everyone has forgotten and where even I think Hone has a point!
Pre 2004 had indigenous/customary/native title ever been extinguished? Yes, it was assumed that this had happened. But, had it? We will never know because that point is not going to be tested in the right place – the courts.
Unless I’ve missed something no one has ever proven that native title was ever extinguished and that the Crown ever actually had title to it. That is the nub of the whole issue.
I think you will find the key aspect for many Maori is that this fundamental question remains unanswered. If native title has been extinguished then all that needs to happen to quiet Hone, is to show in our statutes where this happened. Game over.
Yes the 2004 Act created an unholy mess for the current Government to deal with, but the lack of fortitude by successive Governments to allow the courts to answer the question is disturbing and dangerous.
Vote:September 19th, 2010 at 12:19 pm
Yeah Kowtow, its like looking at Europe with 1940 as a base point.
Vote:September 19th, 2010 at 12:28 pm
Nota: Customary or native title has not been extinguished – that is what the Court of Appeal found. But they also found that it only still exists where there has been uninterrupted exclusive use and occupation.
You can argue that Maoridom as a whole “owned” the entire foreshore, but there is no legal basis for this. There were parts of the foreshore that had no Maori living even close to it (esp in the South Island). Property rights in the foreshore can be foudn to belong to individual Iwi or Hapu, but there is no legal entity that can claim the entire foreshore. If there was a Maori Government before 1840, then perhaps, but the reality is there was no national Government.
Vote:September 19th, 2010 at 12:33 pm
“Pre 2004 had indigenous/customary/native title ever been extinguished?”
In reality there has never been any such thing. A people who do not even have a written language cannot subscribe to concepts like title. The term “native title” is just a sop to political correctness and it is a travesty that this is a concept granted legal standing.
Furthermore, there should be no discrimination in laws as they relate to race. This is a fascist concept that has no business in a civilised society.
Native title is a concept that needs to be put aside along with the equally offensive and politically correct concept “tangata whenua”. Both of these issues are racially divisive claptrap and if we had a political party with spine and common sense “native title” and “tangata whenua” are phrases that would have been expunged from legislation years ago.
Vote:September 19th, 2010 at 12:59 pm
The repeal would be fine if the Maori Land Courts were fair. But I somehow doubt that.
All those marae (and gang headquarters) by the beach will be claiming miles of coast up and down from where they stay, because they like to get pipis from the foreshore, and overharvest kina from the seabed to sell to F&C shops. Because they’ve done this for ages, they will gain title of the beach. So tourists will be charged by some random prospect when they stop their car to take a walk down our deserted coastline. And amateur fishermen will be confronted and forced to hand over their catch because they’re on private land.
Beaches should not be owned, and they should not be gated and charged for – even if they have been used for 170 years.
Vote:September 19th, 2010 at 1:12 pm
What Red said at 12.33pm
Further, the Maoris’ ‘title’ was simply which tgribe had the biggest clubs at the time. There was never any concept of ‘title’. There never is in any primitive tribal society.
The sea shore has actually been PROTECTED by the crown for EVERYBODY including maoris to use and enjoy.
Vote:September 19th, 2010 at 2:59 pm
Here’s Hone’s rant on Garrett.
The Maori party is a dangerous beast, we need to call for the abolition of the Maori seats as being undemocratic, without merit and racist.
What a hypocrite, Harawira is, what about his assault convictions? Where is the scrutiny of the Maori party & their motives?
Harawira scathing of Garrett and Act
By NEIL REID – Sunday Star Times 09:43 19/09/2010
Firebrand Maori Party MP Hone Harawira has labelled disgraced MP David Garrett a “bastard”.
He says revelations of an undisclosed assault conviction, possible perjury and the theft of a dead child’s identity are the final nail in Act’s coffin.
Harawira is no stranger to controversy himself but he told the Sunday Star-Times he wasn’t wasting any tears on Garrett.
“Good riddance to that bastard,” Harawira said. “I swore last year [in emails] and if you had have been able to crucify somebody, I would have been crucified, burnt at the stake, and really, the condemnation on this guy is mild in comparison.
“I knew it [the controversy] would build and I knew there was more to it. Anybody who can be so scumbag as to do something like that has surely done a lot more in his life.”
Garrett quit Act on Friday after it emerged he lied to keep an assault conviction secret from the judge who discharged him without conviction for stealing a dead toddler’s identity, something Garrett dismissed as a prank.
Harawira said Act was “dead and buried” because of its own foolishness.
“Rodney Hide thought he could slide in a guy like Garrett, and there was the boorish and idiotic and testosterone way in which they dumped Heather Roy, an intelligent, hardworking MP and from all accounts a good associate minister of defence. Tariana [Maori Party co-leader Tariana Turia] had high regard for Roy and her ministerial portfolios. And she doesn’t necessarily have high regard for many.
“By showing how disdainfully they can wipe away a woman who dares to show a bit of strength, it signals to all intelligent and strong women that Act is a waste of time. They are goners. Act is not going to be an influence at the next election.”
Act has been a crucial member of the coalition government, which also includes the Maori Party, but Harawira believed the coalition was safe.
He said the Maori Party could gain the most as National looked to lock in support before next year’s election. “The coalition has a future. The Greens – and I love nine out of 10 of their policies – have staked their flag with Labour. Phil Goff is a nice man but he isn’t going to win – that is the truth of it.
“With Act gone, that means we are again a pivotal player.”
Harawira is at odds with his own party over the Marine and Coastal Area Bill. Harawira opposes it, saying it would mean foreigners – including Osama bin Laden – had more rights over the coastline than Maori.
“The fact is that if he got off the plane today and bought some foreshore or seabed, he would have more rights than I would under this bill. That’s just wrong. It doesn’t fit the Kiwi sense of rightness.”
Be afraid. Remember there are more Maori MP’s than any other group.
Vote:September 19th, 2010 at 3:06 pm
3 things about that editorial which are wrong. 1. The bar has been lowered and 2. Maori don’t have to go to court, they can go directly to Finlayson leaving the door open to corruption. 3. The word free is not in the bill. This editorial is deceptive.
Vote:September 19th, 2010 at 6:07 pm
Quite right jackp.
Finlayson would also prefer they came to him on all treaty claims and do backdoor deals rather than go through the courts. Free access is not in the bill, and Maoris can also kick people off the beach if they declare an area to be “wahi tapu” whatever that means. We’re also paying for historical research so Maoris can claim rights over us.
Vote:September 19th, 2010 at 6:16 pm
Also agree with RB.
“Native title” and “Tangata Whenua” are just words politicians and Maoris use to manipulate the masses and justify racist legislation.
Vote:September 19th, 2010 at 7:19 pm
Interesting rights, if one is pakeha and long dead rellies bought land from the local iwi one has the right to throw hories off your foreshore.
But, the iwi who sold the land have no right to throw pakehas off their foreshore.
Equal law for all ?
iwi never owned the foreshore ? whoops some pakeha have a problem then, because they bought land from hori who did not own it.
Vote:Should they surrender it to the crown ?
September 19th, 2010 at 8:24 pm
At least the Seabed and Foreshore s being discussed this time, and isnt being shoved down Maori throats by the Palangi this time. Hone is purely representing the interests of his constituents. Maori are grateful they are actually allowed to vote these days. Maori are more concerned about the environmental and ecological management of the Foreshore and the Seabed rather than the pure ownership which is Palangi terminology. The Government’s and Council’s track record in this area is very poor, just look at the list of polluted waterways in NZ, maori’s traditional food basket forcing them to McDonalds and KFC.
Vote:September 19th, 2010 at 8:43 pm
@rakurau
Bullshit
Vote:September 19th, 2010 at 8:44 pm
“At least the Seabed and Foreshore s being discussed this time, and isnt being shoved down Maori throats by the Palangi this time.”
Say, who is shoving what down “Maori” throats, given that many so called Maori support Labour and or National?
“Maori are grateful they are actually allowed to vote these days.”
They ought to be, they’re far ahead of any other NZer in that they have race based seats allocated to them. Seats that should have been abandoned years ago.
“Maori are more concerned about the environmental and ecological management of the Foreshore and the Seabed rather than the pure ownership which is Palangi terminology.”
Yeah sure they are, which is why they killed off many NZ birds and were in the process of wiping themselves out through cannibalism before Europeans arrived and brought them the protection of law. The claim that Maoris are environmental managers is bullshit. You can see them wiping out our natural resources just by tuning to any reality show on TV that features Fisheries and Wildlife management.
“maori’s traditional food basket forcing them to McDonalds and KFC.”
You don’t know what force is you propagandising fascist fool. You should ask a few Prisoners of War what they were “forced” to eat when imprisoned by the Japanese while fighting for your damn freedom. The freedom you abuse with idiotic claims such as the above.
Vote:September 19th, 2010 at 10:21 pm
Yes, yes that’s called apartheid. Not a proud period in any nation’s history. Yet there are plenty of people here in NZ who promote it, and plenty do don’t resist it. The rest are labeled racists. It’s an odd place .. this progressive/liberal/white-guilt infested world in which we live.
Vote:September 19th, 2010 at 11:08 pm
Odd, it’s sick.
Vote:If it wasn’t so sick it would be funny, so called people standing up for freedom and rights but allowing racism and apartheid in NZ.
September 20th, 2010 at 8:03 am
MikeNZ, I find it sick too, but more than that I am absolutely stunned that this national Socialist government has had the downright gall to give in to the Racist party.
OK, obviously this is a simplification, but the racists basically say:
- “We want the right to claim all or parts of the coastline and seabed under the Treaty process which has worked so well for us in levering huge slices of land, resources and money out of the people of NZ. So far the crown owned coastline has been out of the equation but we want it included.”
And John Fucking Cunt Key has replied:
- “OK guys. I’ll take all this coastline away from the crown for you so that you can start claiming it. We’ll just say that it is owned by nobody and it will be up for grabs. How does this sound, fellas?”
And Asshole racist activist prick Harawira says:
- “That’s not good enough. I don’t want it just up for grabs… I want it all and I want it now, you white honky colonialist bastards!!!”
To which almost the WHOLE bloody parliament responds:
- “Oh don’t listen to Hone…. he’s just being silly Hone as usual. Lets just strip all this land away from the crown and open up the process for years and years of legal claims. Hone will get what he wants anyway in time so what’s the big deal, but we’ll make him work for it and the lawyers will thank us.”
And the rest of New Zealand, all the Whites, Indians, Chinese, Pacific Islanders, Koreans, South Asians, etc just yawn and look the other way!
I frankly cannot believe it. Its like living in a dream.
Vote:September 20th, 2010 at 8:18 am
Retraction… John Key is absolutely not a cunt. I didn’t mean to imply this at all. I’m sorry I accidentally typed the word above. He’s not a cunt. He is a traitorous slimy untrustworthy white-guilt-infested bland no-hoper who has no idea of the havoc he is wreaking on our country. He is a quisling in the pocket of racists, but he is not a cunt. Not at all. Just to be clear about this. Not a cunt.
Vote:September 20th, 2010 at 8:39 am
MikeNZ too be blunt, what the fuck has it to do with a visitor whose first loyalty is to the USA ?
You are far better off fucking off back to the USA and supporting that strange anti masturbation creature.
If you are going to stay here just be a good boy and hand over your koha to use my beach.
Vote:September 20th, 2010 at 8:49 am
… and that comment from grumpyoldhori, dear readers, sums it all up in a nutshell, doesn’t it? Thank you, grumpy, for illustrating it so well for us.
Vote:September 20th, 2010 at 9:02 am
The problem we have in this debate is we have the theif setting the agenda and making the decisions.
Some good healthy debate is good for everyone including M*****baiter.
Vote:September 20th, 2010 at 9:05 am
Don’t mind Grumpy Dave. He suspects there might one day be a law against masturbation and this suspicion, as crazy as it is, terrifies the shit out of him.
Vote:September 20th, 2010 at 9:12 am
@rakuraku
“At least the Seabed and Foreshore is being discussed this time, and isnt being shoved down Maori throats”
I don’t think anyone on Kiwiblog approves of what Labour did, which I assume is what you’re talking about.
“Hone is purely representing the interests of his constituents”
Hmmm, I live in his electorate – I wonder if he would represent my interests? Answer – NO F***ING WAY. Why? Because I’m the wrong colour.
Vote:September 20th, 2010 at 9:17 am
Does that mean you are not on the Maori roll Graham? If not you won’t be one of his constituents, you’ll have a different MP not representing your interests.
Dave Mann – you’ve done some illuminating illustrating as well.
Vote:September 20th, 2010 at 9:32 am
“the correct test is what the Court of Appeal set down – uninterrupted exclusive use and occupation since 1840″
No such test was layed down for the seabed and foreshore. All the CA did was say that seabed and foreshore was land for the purposes of the TWA. And obiter that such claims would be limited. It then refered the case back to the Maori Land Court.
That fact that National is legislating this older common law test suggests that their concern was that the Courts would apply different tests (say those developed in the common law of Canada) to the issue of land under sea water or periodically covered.
I dont know that its logically possible to occupy the seabed in any physical sense. It might be possible to occupy the land surrounding this (say a habour or Bay). However if Parliament passes a law saying it is possible then its likely the what is meant by occupation might evolve in the Courts to something akin to virtual occupation.
Thus in order to avoid a injustice (i.e. Parliament never intended to deprive Maori of their ownership interests in the seabed and foreshore) the narrow statutory test will be stretched and molded.
Vote:October 31st, 2010 at 6:50 pm
Chris
Uninterrupted exclusive use is not an older common law test, it is a Pakeha interpretation of Maori custom. One thing the common law is absolutely crystal clear on is that Pakeha law has no place at all being involved in the business of laying down native custom (That is a major finding in Oyekan.)
This is the best summation around on this issue, which hasn’t changed since labour first brought in that definition of ownership, from Jim Evans, Professor of law at Auckland. http://publicaddress.net/default,1248.sm#post
Vote:October 31st, 2010 at 6:51 pm
To be clear – the test in the ACT is a higher bar than the simple common law test.
Vote: