Herald praises ACT
October 18th, 2010 at 10:00 am by David FarrarThe NZ Herald editorial:
The Act Party has suffered more than its share of self-inflicted wounds lately but it deserves credit for a valuable legislative intervention last week. At Act’s behest, the Government has agreed to write a clause into the foreshore and seabed bill now before Parliament that will expressly make it unlawful to charge for access to a beach.
The Government was previously content with Attorney- General Chris Finlayson’s view that charging would be illegal because the bill would not give iwi any power to do so. Act pressed for a specific prohibition that would leave no room for uncertainty among members of the public and members of tribes awarded customary title.
And having the requirement explicit rather than implicit is a good thing.
Related posts:
- Harawira on FSA
- Armstrong on Foreshore & Seabed
- Foreshore & Seabed Act may be toast
- Herald praises Brown
October 18th, 2010 at 10:03 am
Will this apply to all land in the Coastal and Marine Area, or just Maori land?
Vote:October 18th, 2010 at 10:05 am
Yes, good on ACT for supporting a one law for some change and getting the boot in to their coalition partner in the process.
Vote:Someone pass the popcorn.
October 18th, 2010 at 10:22 am
I think they’ll need to be a little more specific.
I know of the Newdick family at Maketu, where the only access to the beach – a very popular surfing and mussell-diving area and fishing spot – is accessable only across the Newdick farm, via a private road which requires a fair level of maintenance.
Vote:The Newdick family have charged acces to the beach via their road for longer than I can remember, and there has never been an issue.
So even though the charge is really a token for maintaining the road, many may see it as charging for use of the beach, which is the reason why people use the road.
So the bill will need some clarification WRT charging.
October 18th, 2010 at 10:25 am
Will this apply to all land in the Coastal and Marine Area, or just Maori land?
Oh, I think we all know the answer to this one, at least as far as ACT’s intentions are concerned. It would nice if they had the integrity to come out and say it, but don’t hold your breath.
Vote:October 18th, 2010 at 10:26 am
Don the Kiwi – it is clear that that will still be permitted.
Vote:October 18th, 2010 at 10:27 am
Yeah – but whom should someone who supports property rights and “one law for all” vote now?
Vote:October 18th, 2010 at 10:32 am
ACT once prided itself on being the only party that supported property rights 100 percent.
I recall Gerry Eckhoff staunchly defending the rights of farmers to stop strangers trampling all over their land (though in practice most do allow access to rivers).
http://act.org.nz/news/this-land-is-your-land-not-labours
Someone from ACT needs to explain exactly what principle they are now upholding.
Vote:October 18th, 2010 at 10:43 am
Yeah…as an ACT supporter Im not thrilled with this…..if Maori own land, be it a beach or whatever then they should be able to charge for access just like anyone else. Whats so special about a beach that people feel they have some kind of “right” to go there against the wishes of the owner? That “right to wander” shit died when we became an (alledged) civilised society…which means upholding private property rights.
Beachs should be like going to the movies…you pay a market price at the gate to the owner to use it…..and like the movies you aren’t rated or taxed for its up keep the rest of the time….
Vote:October 18th, 2010 at 10:44 am
According to the opponents of this amendment, the bill already prevents charging for access. So all this does is make it nice and easy for “ordinary kiwis” to read and understand the law – no harm done.
Vote:October 18th, 2010 at 10:54 am
Whether it goes in or not, that remains to be seen. I know Chris Finlayson is strongly against this and I wouldn’t put it past this LIST mp to do something like that. There is another point. Why can Maori go behind closed doors and settle with Chris Finlayson directly? This guy has defended Maori in treaty of whaitangi settlements for years and now he is writing the law? Act is against this because chris finlayson will “carve up the beaches”. I am with Act, take it to the courts the way it was before 2003. Finlayson will lower the bar for customary title.
Vote:October 18th, 2010 at 10:55 am
Opps, sorry, meant I wouldn’t put it past Finlayson to pull the “free” clause out at the last minute.
Vote:October 18th, 2010 at 11:05 am
Why oppose an amendment that clearly says what is implied in it elsewhere?
I’d sugest there’s a bit of being economical with the truth going on qtf.
Vote:October 18th, 2010 at 11:05 am
“The Government was previously content with Attorney- General Chris Finlayson’s view that charging would be illegal because the bill would not give iwi any power to do so.”
And why would that be? What made Finlayson so credulous (or malleable) to Maori’s intentions? The words “Trojan horse” and “fifth-columnist” come to mind.
Vote:October 18th, 2010 at 11:13 am
@Lindsay – You’re right. This looks more like NZ First than ACT. ACT opposed Labour’s Foreshore & Seabed Act on the grounds that it interfered with private rights in respect of property and access to justice. That was a principled stand – and quite a brave one in some respects. Now they are limiting rights in respect of land – which may or may not exist in the first place – but still not a good look for them.
Vote:October 18th, 2010 at 11:14 am
Graeme Edgeler & Lindsay Mitchell:
Existing property rights are unaffected. Those 12,500 freehold titles in the seabed and foreshore are protected. Other than these titles there are no other recognised title in the seabed and foreshore, other then the Crown’s radical or notional title.
The issue with the Marine and Coastal Area (Takutai Moana) Bill (M&CMTMB) is that it is creating a statutory based property right the incidences of which are less than freehold title. This isn’t a process of legal discovery by the Courts through the evolution of the common law. Recourse to the Courts on this issue will now be under the framework of M&CATMB. The pre Seabed and Foreshore Act law is not re-established. An organic development of the Common law is now impossible. Furthermore the process of established this new statutory property right will primarily be by political negotiation (possibly within Parliament) not legal discovery in the Courts.
If you are going to create a statutory right in the seabed and foreshore which is less than freehold title, Parliament determines all the aspects of that right. The Maori Party and various Iwi leaders have publicly said they do not want the right to charge for public access (rent seeking behaviour) – why not make this inability to engage in rent seeking behaviour explicit. Any rights they exercise over the seabed and foreshore after all will be founded in the M&CATMB.
Regarding the one law for all, ACT position has been entirely consistent. It has tested the Attorney General to do “a compare and contrast” exercise between the ownership interests he is creating verses the basket of rights under freehold title. ACT has never had a problem with the owners of freehold exercising their rights include charging for public access. The point is Maori won’t be getting the same quality of title under the M&CATMB.
Vote:October 18th, 2010 at 11:17 am
“Someone from ACT needs to explain exactly what principle they are now upholding.”
The principle of getting the Bauble loving leader re-elected.
I will never vote for ACT again while that fraud is the leader.
Vote:October 18th, 2010 at 11:18 am
Give Maori their day in court but they need to get rid of the aspects of the bill which allow negotiations ‘behind closed doors’ cause we all know what is going to happen
Vote:October 18th, 2010 at 11:20 am
NickR:
“ACT opposed Labour’s Foreshore & Seabed Act on the grounds that it interfered with private rights in respect of property and access to justice.”
Wrong.
ACT never granted or acknowledged Maori having private property rights (freehold title?) in the seabed and foreshore. What ACT said was that matters regarding the assertion of property rights are best resolved in the Courts.
Vote:October 18th, 2010 at 11:20 am
“Will this apply to all land in the Coastal and Marine Area, or just Maori land?”
I am not a lawyer but I would expect that ports and marinas would be able to continue to charge for use of land. The same would apply to land which was purchased riparian rights. There are a lot of different type of titles. When a farmer buys land he does not own the minerals. He cannot stop powerline going over his land.
in any case your question is getting a little off the topic. The Maori Party and Chris Finlayson tried to claim that an amendment was unnecessary when it was. The old legislation said the was to be no charge. The proposed legislation left that out. If it was left like that and the matter when to court the judge would say the bit about not charging in the old legislation was left out for a reason. So Finlayson was being deceptive at best.
Vote:October 18th, 2010 at 11:31 am
ACT has never had a problem with the owners of freehold exercising their rights include charging for public access. The point is Maori won’t be getting the same quality of title under the M&CATMB.
At least, not if ACT have anything to do with it…
Vote:October 18th, 2010 at 11:40 am
Having the requirement AT ALL is NOT a good thing. It creates two sorts of property rights, the inferior ones that apply to foreshore and seabed that is established through negotiation or through the courts as being customary Maori property rights, and the ordinary ones that everyone else has.
That is discriminatory. If ACT were true to the position Chris Diack espouses above of “the assertion of property rights are best resolved in the Courts” they would have done just that – left it to the courts – not tinker with this legislation to create an inferior type of property rights for Maori.
So much for the “One Law For All” ACT used to advocate.
Vote:October 18th, 2010 at 12:08 pm
You’re not very bright are you toad. This Bill is what’s creating two different sorts of property rights, not ACT. And no doubt if ACT had the final say if would be left to the courts – but in case you hadn’t noticed, five seats do not equate to a Parliamentary majority.
If it was left to the courts to decide, and they gave what equated to freehold ownership of parts of the foreshore and seabed then I would have zero problem with them charging. Of course they would not get anywhere near the 2000km of F&S that National’s offering them, which is why I suspect the Maori Party and friends don’t want a simple court-related outcome. Then again, ‘one law for all’ was never the Maori Party’s thing.
Vote:October 18th, 2010 at 12:09 pm
My understanding of how the government sold this bill was that it was giving a limited property right over the foreshore to iwi (arguably a property right they already had, or some subset thereof – so I don’t mean “giving” in a perjorative sense). This is not the same as the property right that someone who owns a bit of land has.
What ACT have done is forced the issue. The govt had said that Maori wouldn’t be able to charge for access, but that wasn’t clear in the bill. They’ve made it clear.
There are therefore two options:
1. People actually wanted the guarantee of no charges under this “reduced property right.” If so, then they should be happy, and ACT have done a good thing by making this crystal clear. I believe this is what most NZers were comfortable with – the bill was sold to them as providing a kind of notional title to Maori, but it wouldn’t impact them personally in any way
2. People actually thought Maori would have full property rights over the foreshore. Including the ability to exclude people and to charge. In that case, the government was telling everyone that wasn’t happening, so it would be dishonest to allow Maori to have this right without having a proper national debate about it. Stealth introduction of laws is always bad. So again, ACT have done a good thing by forcing a proper debate about this.
Those of you commenting on here with dismay presumably thought that Maori were getting ownership of the foreshore without anybody complaining. It was never plausible that that would happen.
Vote:October 18th, 2010 at 12:13 pm
Act is quite right on this. Much as I support Chris politically and personally, I do not think he is being up front with the public on many provisions in this Bill.
Vote:October 18th, 2010 at 12:16 pm
Toad:
Oh dear where does one start to try and educate a Green on property rights.
First. There are different qualities or strengths of ownership in New Zealand’s legal system. You are assuming that the High Court would find in favour of Maori that they had freehold title in the seabed and foreshore. We will never know the extent (geographical and strength/quality) of Maori interests in the seabed and foreshore under the common law.
Second: M&CATMB and Labour’s Seabed and Foreshore Act has little to do with customary title (or aboriginal or native title) or customary rights over the seabed and foreshore. The only relevance to these two concepts (customary rights and customary title) is to eliminate common law claims founded in customary rights which are then converted or recognised in customary title.
The M&CATMB and the legislation it replaces establish a statutory interest in the seabed and foreshore not a common law one. Even Maori do not argue that they had freehold title in the seabed and foreshore – by their reasoning it must be a lesser right than that since it excludes the right to alienate.
Third. Given it seems to be the will of the majority of Parliament to pass the M&CATMB the responsible thing to do is to attempt to ensure the legislation achieves the stated objectives. If Maori say they don’t want rents for access and are not behaving in a rent seeking manner and the Attorney General’s view is that there is no explicit statutory power to claim such rents for access why not make it crystal clear. ACT has a duty to behave construstively in the legislative process even if it does not support the will of the majority of Parliament.
Forth: I would have thought that Greens would be more concerned about the M&CATMB removing the statutory interests its creates from the existing legal framework of resource management in New Zealand. While Maori are getting an interest which they cannot sell and cannot exclude or charge for mere public access, they are getting a right the exercise of which is outside the RMA.
Vote:October 18th, 2010 at 12:23 pm
# big bruv (7,065) Says:
October 18th, 2010 at 11:17 am
“Someone from ACT needs to explain exactly what principle they are now upholding.”
The principle of getting the Bauble loving leader re-elected.
I will never vote for ACT again while that fraud is the leader.
Bruv; you really are getting monotonous with your posturing. As bas as Toad and Phil.
If you don’t understand how effective ACT are then follow the thread from Diacks post above yours.
Vote:I doubt that you really are that thick, but time will tell.
October 18th, 2010 at 12:26 pm
Chris,
Toadie and the Greens are ‘sackcloth & ashes’ apologists, hence the argument about property rights. They will thank you for raising the point about RMA as they had clearly overlooked that one.
As far as they are concerned, as tangata whenua, the RMA provisions should never have applied to the indigenous population and now that you have highlighted it to them, they can give a proper, formal apology for the unfair treatment of the people of the land by forcing them to operate within the confines of that Act (they will also apolgosie for not realising it, for the rest of New Zealand not relaising it, and for future generations having had ancestors that never realised it.)
Vote:October 18th, 2010 at 12:30 pm
Chris, I would have expected that Maori were getting something from this – else why all the pain. What I can’t work out as yet is what Maori can actually do with this right. Nobody has adequately explained it – if I just listened to the National party I’d expect it to be the equivalent of blankets and beads – we’ve given the Maori Party nothing of value, and in return they’ve given up all rights to go to court. That makes no sense.
The things I can see that they may have received of value:
1. A legal recognition of their “right”. This is a feel-good factor that cannot be turned into food on the table, history tells me that many Maori settlements include some element of feel-good. My concern is that over time this feel-good sometimes turns into something that can put food on the table – witness the rent applied to one of the Canterbury lakes (something to do with eels?)
2. A right to exploit the resources in a way that others cannot. I have a gut feel this is there somewhere, but I don’t know where and what. Perhaps this just means Maori aren’t subject to catch limits. Perhaps it means they can build fish farms and other people cannot. I don’t really know, but once you start thinking about this, it raises some real questions.
3. A right to be consulted. As you say, this isn’t embodied in the RMA, but I’d bet the courts would find this right exists. This right to be consulted can be converted into rent seeking behaviour – hire the right consultants (Maori consultants I presume), make the right donation/koha, all your problems go away. I’m not being rude about this – if I had a right to be consulted, and that was the only right I was actually granted, you can be damn sure I’d find a way to charge for my time. But the govt is pretending that this right doesn’t exist.
4. Something else? A right to develop property? A right to run tourism ventures/commercial ventures that others cannot? A right to getting their people involved in tourism ventures – a way to create employment? There must be something.
In short, I distrust this process because at the moment it makes no sense. There must logically be something hidden, and I think what ACT have done is to close down the most obvious thing that could be hidden – the right to charge for access. But there are still plenty of other places for things to hide.
Vote:October 18th, 2010 at 1:00 pm
Chris, Thanks for the additional info. ACT’s position is to restrict a property right granted by parliament but uphold a property right granted by the court?
PaulL, “…..we’ve given the Maori Party nothing of value, and in return they’ve given up all rights to go to court.” No. They can still go to court. I linked to the PM saying exactly that last week.
http://lindsaymitchell.blogspot.com/2010/10/pm-says-coastal-coalition-misleading.html
I don’t mind confessing ignorance over these highly legalistic matters but I am not on my own. If a law is well beyond Joe Average’s ability to comprehend then it is probably bad law.
Vote:October 18th, 2010 at 1:16 pm
Lindsay – I think ACT’s position is that:
a) the two property rights aren’t comparable – one is a common law ownership right (that granted by the court), the other is a new property right that isn’t ownership, isn’t currently recognised by common law, and only exists because of this law
b) those involved believe the bill has an implicit restriction on the property right that prevents charging for access, and have been telling everyone that is the case (so as to hose down any public opposition)
c) ACT believe that, if that is really the case, then it would be easier to just write that in the law so there is no uncertainty
So far as I can tell, the outcry over this is simply because a segment of the elite thought they’d pulled a swifty on the general population by saying one thing and writing another in the legislation, and they’re now caught out and have to either admit that Maori can charge for access, or put this in the legislation making it clear that they cannot.
I realise that in politics saying different things to different audiences is often desirable, I find it quite admirable that ACT is trying to stop this particular instance.
Vote:October 18th, 2010 at 1:18 pm
ACT is the only party never to have flip-flopped on the foreshore and seabed. Our position has never changed.
ACT opposed Labour’s discriminatory Foreshore and Seabed Bill 2004. I joined the Hikoi in Wellington. We argued that iwi — like every NZer — were entitled to their day in court.
In our discussions with both the Maori Party and National Parties, ACT’s position has always been the same:
1. Repeal the Foreshore and Seabed Act;
2. Return iwi and hapu to their pre-2004 legal position with respect to the Foreshore and Seabed;
3. Enable claims for customary title to be heard by the High Court, not the Maori Land Court. As I understand it the Maori Land Court is not equipped either to (a) hear claims for customary title; or, (b) recognise customary title. Their only redress is to award fee-simple title;
4. Legislate public access.
Instead the Maori Party and National Party have agreed to a confusing and confused legislative solution. It is to be Parliament, i.e. politicians and politics, determining the extent of customary title (of course, it is to be no longer customary title, but statutory title), and the test for granting title. It won’t be the Courts determining customary title based on the law and the facts, but politics.
Worse, National’s new Bill gives the Attorney-General the power to negotiate deals carving up the coast with iwi in his office in secret. It’s a disgrace. Politics will determine which iwi get in the door — and what they get.
The objection to ACT’s position from both parties is that the courts would take too long and may determine that iwi and hapu claims are without merit, i.e. that the courts would not award title. That’s certainly what the Court of Appeal judgement suggested and that would be consistent with the 1963 90-mile beach claim. The test under customary law is a high one. Perhaps an impossibly high one.
But that’s not an argument for lowering the test and extending the extent of the rights that can be awarded.
ACT is the only party that has stuck to its principles throughout.
Both the National and Maori Parties promised that iwi would not charge the public for access to the foreshore and seabed in statutory title. But, of course, the Bill as drafted doesn’t preclude that.
ACT is attempting to make sure the government delivers on that promise by proposing an amendment accordingly.
Commentators referring the situation of land held in fee simple or rights granted by the courts are making a straw man. The title being granted under the proposed Marine and Coastal Area (Takutai Moana) Bill is not fee simple, and is not customary title being granted by the courts under customary law; but rather is title granted by politicians in parliament and the Attorney-General in his office.
ACT will oppose this law for the reasons outlined above but in the meantime will propse amendments to ensure it does what the politicians promise it does!
Rodney Hide
[DPF: Rodney - so under ACT's policy Iwi could potentially gain fee simple title from the courts - which would allow them to sell the title to others?
Also fee simple title would allow them to stop the public from access. You say you would legislate for public access - would this legislation apply to all fee simple title holders?]
Vote:October 18th, 2010 at 1:18 pm
@Lindsay – that’s how I see it. Property rights shouldn’t be created by politicians. I’m sure you’d agree. Peetah Sharples should be denouncing the government’s plans and demanding their day in court.
What would happen if the Act Party didn’t ask for the change? Would all the purists from the internet then jump on their back screaming from the rooftops “where was the Act Party on this?”.
I think so.
Damned if you do……etc
Vote:October 18th, 2010 at 1:59 pm
What Rodney said is my main objection. This is the biggest deception by smiling John Key. You can always submit your concerns to the submission committee. They close November 19th.. I am sure they will weight your concerns heavily since Hone Harawira is leading it, yeah right.
Vote:October 18th, 2010 at 2:14 pm
@Radman. Read the blog. Maori can get a second bit at the cherry. If Maori are not happy with a secret deal with the Attorney-General they can go to court and vice a versa.
Vote:October 18th, 2010 at 2:19 pm
Thanks Chuck!
That’s terrible!
They should put in the law that this is a full and final deal etc and cannot be taken to court over.
Vote:October 18th, 2010 at 2:20 pm
“You can always submit your concerns to the submission committee.”
Better still you can join ACT – the only party opposed to backroom deals to sell New Zealand beaches for votes. However, if you choose to make a submission you might like to include the fact that the value of the iron sands on New Zealand beaches is one trillion dollars. Not all of that would go to iwi under the proposed legislation but possibly in excess of 100 billion dollars could.
Vote:October 18th, 2010 at 2:23 pm
Never let it be forgotten what Finlayson did before entering the Parliament. The only just and equitable solution to this issue is the repeal of Liarbore’s law. No new law is needed. And given this government’s form on shady deals with corporate Iwi and the apartheid party, they sure can’t be trusted to look after all New Zealanders when “negotiating” deals of the foreshore & seabed.
Vote:October 18th, 2010 at 2:35 pm
Why was National so unwilling to do this?
Vote:October 18th, 2010 at 2:48 pm
Once the clause is ratified in legislation it will become a criminal offence to charge for access to beaches.
Vote:Penalties for this offence have yet to be decided upon but may include substantial fines and possibly imprisonment.
Setting aside the ethics of this proposed clause both Act and it’s partners will be well pleased with this victory which will play a role in cementing Acts’campaign in next years elections.
Clearly Act are travelling done the path of least resistance in campaigning on percieved Maori privilege and in their desperation are going to run with it next year.The Treaty, the constitution, all will be in Acts basket of policies.
October 18th, 2010 at 3:01 pm
“What Rodney said is my main objection. This is the biggest deception by smiling John Key. You can always submit your concerns to the submission committee. They close November 19th.. I am sure they will weight your concerns heavily since Hone Harawira is leading it, yeah right.”
Sorry, I met Select Committee.
Kevin H, the path of least resistence? I think in New Zealand no one wants to oppose this bill openly for fear of being called a racist. Act had the guts to do it. Do you think the timing was coincidental with David Garrett’s fiasco? He was exposing Finlayson’s deception. I don’t think this is the path of least resistence.
Vote:October 18th, 2010 at 3:16 pm
Now all we need is an explicit clause that allows pregnant and menstruating women to be allowed on the beaches as well.
Vote:October 18th, 2010 at 3:32 pm
Lucia, that is an excellent idea. Why not ask that question on John Boscawen or Rodney’s facebook?
Vote:October 18th, 2010 at 4:50 pm
DPF: You ask the following above:
But the courts could not have granted fee simple. The claim was for customary rights. These are traditional use rights. The right to continue to gather shellfish, launch waka in traditional ways, and protect and access sacred sites etc. A Maori customary right is not fee simple.
However, the rights to be granted by the National Party through Parliament and the Attorney General in his office are close to fee simple except for the right to alienate and to preclude tresspassers. The right also applies not to tradtional uses but to great chunks of the coastline from the foreshore out to the 12-mile limit. The Attorney-General suggests about 2,000 km of coast will be granted but quite why he expects it to stop at 2,000 kms given this legislation is a mystery to me.
It’s got nothing to do with customary claims. It’s about politicians doing deals with favoured iwi carving up the coast and the resources therein. I got better faith in individual iwi and the courts making the determination based on the law and the facts, not politics.
Vote:October 18th, 2010 at 5:40 pm
So you still believe, as then ACT Leader Richard Prebble announced in a media release of June 27 2003 that Labour should have legislated the foreshore and seabed into the Queen’s chain and that it belongs to us all and no claim should be considered.
And your party position also remains that espoused in the June 23 statement of then ACT MP Stephen Franks that Labour should pass a law to confirm that foreshore and seabed are the Crown’s, or held on grant from the Crown.
Good to know.
Vote:October 18th, 2010 at 6:05 pm
Under Te Ture Whenua Maori Act 1993/Maori Land Act 1993 “Maori customary land” can be vested as “Maori freehold land” by the Maori Land Court.
The Maori Land Court also has the power to change land that is Maori customary land, or Maori freehold land into general land.
These are fee simple titles.
Vote:October 18th, 2010 at 6:55 pm
Forbidding someone from charging access to a beach is a violation of property rights. Plain and simple.
Rodney’s claim that ACT have never changed their position is bullshit. ACT has previously supported property rights, and now it does not.
If I bother voting next time, it will be for Labour – the only honest socialist party in Parliament.
Vote:October 18th, 2010 at 7:14 pm
Graeme, Under Prebble ACT opposed customary right claims being heard in the Maori Land Court.
Vote:October 18th, 2010 at 10:32 pm
Rodney said:
I thought it might be useful to clarify a few matters, explaining my earlier comment:
The Maori Land Court has power to determine the status of land (Te Ture Whenua Maori Act 1993, s 18(1)(h)). It can declare whether any specified land “is or is not Maori customary land or Maori freehold land or General land owned by Maori or General land or Crown land”.
The Maori Land Court has exclusive jurisdiction to investigate the title to such land and to grant an order vesting it in those found on investigation to be entitled to it (TTWMA s 132).
When the Maori Land Court makes a vesting order in respect of land it has determined to be Maori customary land, the status of that land changes from Maori customary land (i.e. land held according to tikanga Maori) to Maori freehold land (TTWMA s 132).
Under TTWMA sections 139-141 once land has vested as Maori freehold land, the appropriate District Land Registrar must issue a fee simple title under the Land Transfer Act 1952.
The decision of the Chief Justice in the Ngati Apa case carries the salient facts:
In short, the matter that the Court of Appeal found was legally arguable was that certain bits of the Marlborough seabed and foreshore were Maori customary land. If it was Maori customary land, the Maori Land Court could make it Maori freehold land. Maori freehold land is a fee simple title. Maori freehold title can also be made general land. General land is also a fee simple title.
The Ngati Apa case was not about – as Rodney suggests – Maori customary rights/traditional use rights. It was the first step in establishing that the land in various bits of seabed and foreshore was Maori customary land. If it was factually determined to be so by the Maori Land Court the Courts could absolutely have granted a fee simple title.
Vote:October 18th, 2010 at 11:02 pm
Canterbury University law lecturer David Round (and recently-resigned Nat) tells you all you need to know about the government’s attempted deception:
http://breakingviewsnz.blogspot.com/2010/10/david-round-truth-about-free-beach.html
If you’ve got limited time, just read this next bit. David is talking about how National has seen fit not to transfer the explicit prohibition on charging that was in Labour’s Foreshore and Seabed Act:
“…there is a well-established and perfectly sensible rule of statutory interpretation which says that where one statute replaces another, and where the new statute does not repeat a particular provision in the previous one, then it is to be presumed that Parliament has omitted that earlier provision deliberately, and therefore the legal situation is different from what it was under the previous law.
“After all, this is a situation where the new statute is similar to the one it is replacing. Why has this particular provision been left out? The only obvious answer is, because Parliament intended that it no longer apply.
“So here, therefore, where in the government’s new bill there is no equivalent of the previous prohibition of charging ~ nor any statement that the area is to be held for, inter alia, the benefit of all New Zealanders ~ the conclusion to which this points is that Parliament in this new bill does intend to allow charging.
“It is simply impossible to believe that the new bill left out these provisions simply by accident. It must have been deliberate. And why?”
Why indeed?
The Nats and their supporters who huffed and puffed about free access being guaranteed in the bill were clearly hoping people would take their word for it and not check.
I believe New Zealanders have more to be grateful to Rodney Hide for than they will probably ever realise.
The next time you go to the beach, perhaps you should send a portion of the koha you might otherwise have been charged (not necessarily by all or even most iwi, but certainly by those that charge illegally now) to the ACT campaign fund
Vote:October 18th, 2010 at 11:07 pm
Thank you for that clarification, Rodney. You confirm that your motives are, in fact, to diminish the prospects of Maori attaining the return of that which was taken by confiscation and other means.
Following that, in my opinion, all cases should be heard in the Maori Land Court, their decision should be full and final, and then we Europeans and other immigrants can negotiate access with the rightful owners.
That is upholding property rights without fear or prejudice and enabling true “One Law For All’!
Vote:October 18th, 2010 at 11:11 pm
Hey John, maybe Chris will make access free, but perhaps Iwi can charge for dwell time?
Vote:October 18th, 2010 at 11:51 pm
Given that in his comment above, Rodney Hide wants to “Return iwi and hapu to their pre-2004 legal position with respect to the Foreshore and Seabed”, which was a position which enabled them to seek fee simple property in the foreshore and seabed, I wouldn’t be so fast.
Vote:October 18th, 2010 at 11:53 pm
Graeme, why not?
Vote:October 19th, 2010 at 8:46 am
Graeme,
From my read of Rodney’s comments, ACT supports the designation of some coastal/foreshore land (decided by the Courts) as Maori customary land to provide a title that supports customary/traditional use rights, but which is not a level of ownership equivalent to fee simple.
His statement that ACT did not want claims heard in the Maori Land Court was due to that court only being able, if finding in favour of iwi, to award fee simple title and NOT able to issue a title that would offer customary/traditional use rights but not be equivalent to fee simple.
His statement as to “But the courts could not have granted fee simple. The claim was for customary rights…” was a statement that the courts outside of Maori Land Court could not have granted freehold (fee simple) because the claim was not made on a specific basis to seek that – Rodney’s claim is the legal claim was around customary use. On that basis, a ‘general’ court could not grant fee simple in that specific case as it was not the basis for the claim. But the Maori Land Court could only have awarded freehold as that is the only saward of title it can make.
That is my read of his position – wants all decisions to be determined by the courts, supports customary use rights (customary land title?) but not freehold/fee simple. Because of that the Maori Land Court is not the court to hear the cases, but the High Court is. [One would imagine another option could be to change the legislation to enable the Maori Land Court to award title other than only freehold/fee simple.]
Vote:October 19th, 2010 at 8:50 am
Luc,
If you truly wanted “one law for all” you wouldn’t support Maori claims for coastal/forshare/seabed to be heard in the Maori Land Court.
But you don’t. Get back into your sackcloth and make your own personal donation.
Vote:October 19th, 2010 at 8:57 am
I think Rodney’s main concern is whether granting customary title should be left with the courts or left with Chris Finlayson to make the decision himself. In other words, whether customary title should be a political decision or the high courts decision. Does anyone know anything about Chris Finlayson?
Vote:October 19th, 2010 at 9:05 am
No doubt the pre-2004 position was one of fee simple. In fact the court in Ngati Apa were pretty clear:
However as for charging for access I am not sure its as clear as ACT has made out, sounds more like politicing than any real concern. Had there been no legislative interference wouldn’t s 6(d) of the RMA apply, which states that “the maintenance and enhancement of public access to and along the coastal marine area” is a matter of “National Importance”. Surely the court would be hard pressed to find that the lack of any express reference to not charging in the new act would impliedly repeal the RMA and allow for restrictions on access to coastal marine areas.
I also fail to see how private negotiation with the crown for title is really that much different to the current Treaty settlement process. Maybe I am missing something there or perhaps Rodney is more in favour of the legal test put up by the Court in Ngati Apa which would be much, much higher than any imposed through any private negotiation with the crown…
Vote:October 19th, 2010 at 9:17 am
JayMal,
Your quote above – Hence why ACT doesn’t want the Maori Land Court to hear the cases.
On charging for access – My view (speculation) is that Findlayson and advisers did not put any explicit wording in about charging as they feel that to do so might/would require amendments to all legislation around land ownership to ensure the same explicit rule is in place for all – maintaining a “one law for all” approach.
I don’t think it was so they could allow some dodgy later shift for Maori to charge for beach access. It was about consistency across legislation and avoiding time and cost of have to review all potentially relevant legislation to maintain “one law for all.”
I agree with you on the negotiation piece – far less time and cost for the nation to have these dealt with as negotiations between iwi and the crown. I would support a process which mandated that said agreement had to be approved by vote in Parliament – perhaps even by a ‘super majority’, but I think it is best that the govt negotiate rather than leaving it all up to the Courts. This is what we actually elect them for – to govern and to manage the country (actually to manage the managers of the country, but close enough.) This chills me a little when I think of what a Labour/Greens govt might negotiate away, but I still believe it is the most sensible and pragmatic approach.
Aside form pragmatism, previous govts have shown that they are prepared to legislate to overturn a Curt decisions they don’t like anyway, so this would skip a step so to speak.
Vote:October 19th, 2010 at 12:04 pm
bhudson, the no charge was specifically put in the foreshore and seabed act of 2004 and it was specifically made so iwi could not charge for the use of the water. Foreshore and seabed is what is in the water out to a specific distance. That means iwi could charge for surfers using the waves, fisherman, divers, marinas, boaters, the list goes on. There were no supplemental legislation about ownership of land, as far as I know, as the result of the foreshore and seabed act of 2004. You are a trusting soul if you think politics is that honest as to think we elected these people to do the business of government. You are saying there are no back room deals. I for one can’t agree with you. I have seen back room deals ruin countries, leaving the hard working families who financially support the government left out on the major decisions that affect our lives.
Vote:October 19th, 2010 at 1:42 pm
jackp,
Thanks. I was referring to other legislation for property – not related to FS&SB or any other Maori land – general free simple property title and an explicit obligaiton not to charge.
I think under exsiting (non FS&SB specific) laws this is an untested area. Access ways (drives for instance0 have been tested and founfd that private oweners could charge for upkeep, but charging to access the beach itself I don’t think has been tested.
Remaining silent on it in this legislation would have maintained consistency. Any attempt to charge would then be subject to the decision of the court and would also present a precedence for all fee simple land. The supposition is that it wouldn’t happen and it wouldn’t be tested – as per our freehold titles – but that if it was, the court was the best place to decide.
That is the interpretation (speculation) I choose to hold. I accept that this is no evidence to prove that it wasn’t a dodgy set up to sweep it under the carpet so that charging could happen later. I don’t think that was Findlayson’s or National’s agenda, but Harawira’s response today seems to suggest that he thought it was.
On the trusting bit, its more a case that I acknowledge that the govt of the day can always legislate the decision they want, so why waste time & effort debating it in court when we can skip straight to the deal?
As long as govts have the power to enact retrospective legislation and are preapred to do so, then back room deals can always happen
Vote:October 19th, 2010 at 5:59 pm
bhudson, I agree, there is no stopping dodgy deals behind back rooms. Politics makes for strange bedfellows. I think in this particular instance customary title needs to go through the courts and not through Chris Finlayson. I asked my local mp why is this new legislation giving the Finlayson so much power and is it open for corruption? He winced when I asked this and grimmaced… and just said it was a political decision, not claiming about saving this government money by not going through the courts. Two different answers from two different sources. What I know of Chris Finlayson, this is would not benefit new zealanders. .We should thank Rodney Hide but there is still more room with improvement on F&S.
Vote:October 19th, 2010 at 8:34 pm
Regardless of this bill passing or not Iwi have always had the right to negotiate for FS&SB rights, and have title awarded to them. All from behind closed doors. I guess this law explicitly puts that all on the negotiating table, but its always been within the power of the Government to award to any Iwi who successfully argued for it as part of the treaty settlement process. Still not really clear on how this bill makes it any different…
Vote:October 31st, 2010 at 7:01 pm
Rodney is completely wrong.
The bill is not about customary rights, it is about customary ownership.
The common law position on Native property rights is the exact opposite of what he claims. Native title is NOT subservient to fee simple, it is the other way around.
That is precisely what the court of appeal found in Ngati Apa. The argument that Hide is arguing is the the argument from Parata v Bishop of Wellington 1877. This ruling was applied in NZ for over 100 years in spite of privy council rulings to the contrary.
Finally in Ngati apa, the CoA overturned the concepts ruled in parata, and ruled that native title in not extinguished unless it has been specifically extinguished. Clue: Fee simple title must have a identifiable provence, i.e. it is subservient to native title.
The problem with Hide is that Muriel Newman and the CCC don’t agree with that ruling, and he is too stupid to realise what bases he is arguing on.
Atthe end of the day it is simple:
Why is it OK under this amendment to take away property rights without compensation? Rodney makes some kind of confused muttering about the common law, but here is the ruling from the Privy council that applies in terms of the common law:
“In inquiring … what rights are recognised there is one
guiding principle. It is this: The courts will assume that the
British Crown intends that the rights of property of the
inhabitants are to be fully respected. Whilst, therefore, the
British Crown, as Sovereign, can make laws enabling it
compulsorily to acquire land for public purposes, it will see
that proper compensation is awarded to every one of the
inhabitants who has by native law an interest in it …”
(Adeyinka Oyekan v Musendiku Adele [1957])
The second question is, that if we believe that access to beaches is some kind of inalienable human right, then why does the amendment apply only to Maori owned land? There are 12,500 parcels of beach front owned by individuals and corporations that will not be affected by this amendment. The Spencer family for instance own several beaches on Hauraki gulf islands and people are warned off them.
Bluntly put – why it is OK to remove property rights from Brown people without compensation, while white people are allowed the full enjoyment of their property rights?
Vote:October 31st, 2010 at 7:04 pm
*provenance
Vote: