Iwi on Marine and Coastal Area Bill
December 1st, 2010 at 8:58 am by David FarrarAssistant Deputy Vice-Chief Political Editor Claire Trevett reports in the Herald:
Maori opposition to the new foreshore and seabed bill is increasing, with South Island iwi Ngai Tahu saying it would rather keep the 2004 act than give Maori support to a 2011 version which was equally unjust.
Ngai Tahu representatives spoke before the Maori Affairs select committee in Christchurch yesterday, saying that while the Marine and Coastal Area bill was an improvement on the Foreshore and Seabed Act, it would leave most iwi and hapu no better off because the tests required to have customary title and rights recognised were unfair and too high.
The test required for customary title is not designed by politicians – it is the test that the Court of Appeal said was required under the law.
Ngai Tahu are right that under that test, they would gain little, if any, customary title.
But they are now arguing not for having their legal rights restored, but for Parliament to give them greater rights than the Court of Appeal said they had.
Ngai Tahu’s submission quotes the iwi’s kaiwhakahaere, Mark Solomon, as saying it would be better to leave it to future generations to take up the battle of fixing the injustices caused by the 2004 Act “rather than shouldering the burden of a history that alleges Maori support for a 2011 Act that is equally as unjust”.
They may have a very very long wait. I can not imagine either major party ever wanting to go beyond what the Court of Appeal found, in terms of eligibility for customary title.
The iwi’s stance is a turnaround from initial support for the bill from Mr Solomon as part of the Iwi Leaders Forum which was consulted when the bill was developed.
Not exactly good faith it appears to me.
Ngai Tahu said the test for title and rights should be based on Maori custom and the intensity of each iwi’s relationship with the coastline, rather than on exclusive use and occupation of the coastline.
That is a valid view. But it is not the law of the land, as decided by the Court of Appeal.
Ngati Tama and Te Atiawa were among the Te Tau Ihu iwi which applied to the Maori Land Court seeking title of the foreshore and seabed in 1997 – a move which led to the Court of Appeal’s Ngati Apa decision that iwi could test their title in court, and, as a result, the 2004 Act vesting the foreshore in Crown ownership which iwi were so opposed to.
Yesterday, Te Atiawa rejected the bill that was supposed to rectify that, saying the tests were “unreasonably high” and if they were not changed, it should not go ahead.
Again the tests were set by the Court of Appeal. No Government would dare go beyond what the Court of Appeal found in relation to customary title.They want the rules changed to favour them – understandable, but unjustified from a public policy viewpoint.
Related posts:
- Maori views on Marine & Coastal Area Bill
- Agreement reached on Foreshore & Seabed
- Harawira on FSA
- Iwi now argue against property rights
December 1st, 2010 at 9:10 am
It is as if there is an alternative universe existing here in godzone. It is populated by a small army of “experts” in law and superstition with a perfect memory exceeding several lifetimes and the bulk of NZ is totally unaware of what happens during its operation.
The Waitangi Tribunal has established mountains of process and procedure unseen by the bulk of the population but in every case, the hand goes into the pocket of every kiwi to support the thing.
Even the requirements of the process acquisition and distribution of property are almost invisible, only coming to light when a (full and final – yeah right) settlement is signed with much ceremony, puha and koha.
The sad thing is that the activists have worn us down to the extent that the vast bulk of NZers (many Maori included) just can’t be bothered either getting upset or making an effort to understand it all.
sad – very sad
Vote:December 1st, 2010 at 9:24 am
I wouldn’t be too trusting of the courts in this either.
It’s judicial activism that has given us the undefined “principles ” of the treaty!
Why are Ngai Tahu involved? I thought they had their full and final settlement off the taxpayer some years ago………. Yeah right.
And that’s part of the trouble with the “process”,it’s never ending and never will! There’ll always be another hand sticking out and another politician with taxpayers money to give away! And another judge to say it’s OK.
When will the electorate have a say by way of referendum……….
Vote:December 1st, 2010 at 9:29 am
If Clark and Cullen hadn’t panicked back in 2004, we wouldn’t be having all this trouble. But Labour has lost support and when the dust settles we should see that the Government has the M&C bill about right, maybe a win all round.
Vote:December 1st, 2010 at 9:32 am
Assistant Deputy Vice-Chief Political Editor ? ? Claire Trevett
Vote:December 1st, 2010 at 9:36 am
..what david said at 9.10. Absolutely spot on.
Vote:December 1st, 2010 at 9:36 am
And who would determine the “intensity” of the relationship? One assumes the iwi themselves.
Maori don’t want the new bill. Those kiwis who have bothered to educate themselves on the new bill don’t want it (the rest don’t deserve to have a say). John Key and Chris Finlayson should heed the message and withdraw this shameless travesty before the heritage of all New Zealanders (who are all immigrants, BTW) is given away to one particular band of immigrants.
Vote:December 1st, 2010 at 9:45 am
What IH Stewart (85) said.
Vote:December 1st, 2010 at 9:52 am
“Ngai Tahu said the test for title and rights should be based on Maori custom “… or bascially whatever the hell we say is law and we don’t want to be put to the trouble of providing any proof for our claims.
My Scots ancestors we the subject of a fairly good attempt at genocide and suffered injustices that make New Zealand look like a saturday bbq. But I can’t weasle anything out of the crwon for that. Why is it that my Maori ancestors get this perpetual industry of being “victims” with the history defing claims?
Vote:December 1st, 2010 at 10:00 am
DPF is being disingenuous. The key issue here is that the Marine and Coastal Area (Takutai Moana) Bill (MACATMB) statutorily codifies the tests. If that codification represents the certain common law position why codify why not simply rely on the common law and leave it to the Courts?
The answer is of course that National does trust the Courts to determine this property dispute under the common law. It’s attempting to talk from both sides of its mouth: yes Maori can go to Court but only within the framework of the MACATMB.
The advantage of statutory codification of the tests for the Crown is that it reduces the risk. The disadvantage is the inflexibility (inflexibility in the face of a wrong can be percieved as an injustice)
In essence what National has done is attempt to stop an organic evolution of the common law here.
However even with codification there are risks. For example, National’s test essentially says (because the statute asserts this) that it’s possible for Maori to “occupy” the seabed. We know this because Parliament would not impose a ridiculous test. Therefore it leaves it up to Judges to determine what “occupancy” means in terms of the seabed particularly that permanently covered by water.
The hugely dangerous part of the MACATMB is having tried to queer the pitch in the Courts, statutory grants of title can be negotiated with politicians. The Nats have essentially incentivised this dispute resolution mechanism.
Vote:December 1st, 2010 at 10:08 am
Again I have to point the finger at John Key and his lack of leadership of the issue
He has let Maori leadership run up and down the country telling the rank and file that they lost and had stolen from them the foreshore and seabed.
Please point to all the statements from National that Maori never had ownership of the foreshore and seabed to start off with.
They have not lost or had anything stolen from them
National should have front footed this issue and not let aspirations rise to an unrealistic level
Now there is growing discontent amongst Maori that they have been diddled by John Key and should reject the proposed law
Vote:December 1st, 2010 at 10:18 am
Ngai Tahu said the test for title and rights should be based on Maori custom and the intensity of each iwi’s relationship with the coastline, rather than on exclusive use and occupation of the coastline.
And who would determine the “intensity” of the relationship? One assumes the iwi themselves.
Well it seems that the Attourney General will be able to hui in his office and make the decision. Thats the dangerous part.
Vote:December 1st, 2010 at 11:24 am
“Well it seems that the Attourney General will be able to hui in his office and make the decision. Thats the dangerous part……”
This is the most dangerous part of the bill. I heard him speak last tuesday night in Napier. He said he will have to get other ministers approval if Maori were to get customary title to the foreshore and seabed….leaving room for corruption. He never went into the “test” that would qualify for customary title. Finlayson is a list mp and a previous lawyer for iwi in the treaty disputes and won. Next year the minister could very well be Peter Sharples. After all, Hone Harawira was the deputy leader for the select committee for this foreshore and seabed bill up until two weeks before the deadline for submissions November 19th. Why was such a racist be on such an important committee which designs the wording for the bill????? And why did the news keep it so quiet?? Too much conflict of interest with this bill, this is more of a conspiracy to get it passed rather through a legitimate democratic process. That is why I despise this bill.
Vote:December 1st, 2010 at 12:10 pm
DPF: “The test required for customary title is not designed by politicians – it is the test that the Court of Appeal said was required under the law.”
Perhaps you’d care to give a citation for this proposition? Because it sure ain’t what the Court of Appeal said in the Ngati Apa decision back in 2003. And here’s what the Ministerial Review Panel on the Foreshore and Seabed Act said about the judicial approach that would be taken to determining if customary title could be claimed in any particular case (at pp 111-112):
“In any Native Title case the key issues confronting the Courts are whether the Native Title exists and, if it does exist, whether or not it has been extinguished in some manner. The real uncertainties after Ngāti Apa revolved around these two components. What would need to be shown before the High Court could find that Native Title existed? The New Zealand Courts could have been guided by Australian precedent on this, in particular the High Court of Australia decision in Mabo v Queensland. This held that the crucial test was the continued exercise of customary law with respect to a particular place. But this is only a guess: the New Zealand Courts might possibly have preferred somewhat different approaches to this key question developed in the Canadian Courts. There was also the issue as to whether the Common Law could recognise an exclusive Native Title to the foreshore and seabed. It is very possible that the New Zealand Courts may have been influenced to a significant extent by the majority in the High Court of Australia in Commonwealth v Yarmirr, which took a restricted approach towards the scope of Native Title that could be recognised in
coastal waters. Alternatively, they might have preferred Justice Kirby’s dissenting judgment in Yarmirr. There is just not enough New Zealand case law in existence to allow us to make a reliable prediction.”
Point being – there was a choice at common law as to which approach to take in NZ (the quite restrictive Aussie one or the comparatively more liberal Canadian one). The Court of Appeal had NOT determined one approach was the “right” one for NZ. Instead, the Government has chosen to legislate one particular approach – that adopted in Australia – into effect. That may or may not be a good choice to take, but to claim the Government has “just done what the courts said” is, I am afraid, plain wrong.
Vote:December 1st, 2010 at 12:29 pm
The maoris will be infinitely digging for more and more.
I understand that there is some deadline for claims – whatever, this deadline is just for the current round.
There will be many more rounds.
Just wait until unobtanium is discovered within the NZ economic zone – the tribes will be demanding rights to that also.
Vote:December 1st, 2010 at 1:03 pm
“Just wait until unobtanium is discovered within the NZ economic zone”
If unobtanium were to be discovered in our EEZ, we’d be invaded so fast that internal squabbles over who “owns” it would be irrelevant. Did you not actually see Avatar? And, if you did see it, you do realise it is a pretty unsubtle critique of colonialism … right?
Vote:December 1st, 2010 at 1:04 pm
Maori believe that they did not cede the foreshore and seabed to the Crown in the Treaty and have retained continuous ownership of what is part of their estates.
Vote:The belief is that the Crown is stealing this asset from Maori, a raupatu or confiscation.
If you examine the Treaty in detail you will find that Maori are correct and the Crown wrong. That is why this government and previous govt’s have not declared this to the nation.
Whatever the outcome of the latest select committee hearings Maori will not back down on pursuing legal ownership of the Foreshore and seabed.
December 1st, 2010 at 1:15 pm
Kevin when the treaty was signed no one including the crown had any claim on the seabed past 3 miles. Show the exact part of the treaty that states Maori own any of the seabed let alone out to 12 miles and have a claim on a 200 nautical mile economic zone.
Vote:December 1st, 2010 at 1:39 pm
And the 3 miles was based on the distance of cannon ball!
Vote:December 1st, 2010 at 5:30 pm
Mark Solomon, as saying it would be better to leave it to future generations to take up the battle of fixing the injustices caused by the 2004 Act “rather than shouldering the burden of a history that alleges Maori support for a 2011 Act that is equally as unjust”.
In other words, this issue will never go away until they get what they want .. it will never end
Vote:December 1st, 2010 at 9:20 pm
DPF said:
But isn’t this how the whole thing blew up in the first place? The courts said that Maori were entitled to have the extent of customary rights tested in court and the then government overruled the courts.
We are still intent on exercising the power of the coloniser, and I applaud all Maori efforts to remedy this injustice.
As I have said before, a much better treaty settlement process is to vest ownership of everything to Maori, then go through a settlement process for what really belongs to us.
Screams of horror are permitted at this point.
Vote:December 1st, 2010 at 9:24 pm
I think you will look pretty good with a greenstone club buried in your head when you resist handing over your computer to the bro that wants it Luc.
Vote:December 1st, 2010 at 9:59 pm
Three words come to mind.
What a mess.
Vote:December 1st, 2010 at 10:04 pm
Are you referring to the state of Luc’s skull after he has been relieved of his stuff under the provisions of the anticolonial oppression bill there Robbie?
Vote:December 2nd, 2010 at 2:22 pm
Having studied the new act somewhat and the issues around this from a legal perspective I have three points:
1. This test is not the same one as the court of appeal it is slightly higher although it is lower than Labour’s version.
2. This will not account for breaches of the Treaty of Waitangi/causing use to be disturbed e.g. we have legislation requiring owners of beaches to allow boats to dock this is inconsistent with exclusive occupation.
3. Maori probably don’t want full title in the Western sense. What they want is the native title they would have understood it by. This means if this does not need exclusive possession to gain it they cannot claim exclusive possession as a right from it so people have nothing to fear from their “ownership” it would be mere titular to regular beach goers with maybe some requirements on the council to keep beaches clear which they should already do. Fishing right etc has already been dealt with so there wouldn’t be any issues over that. Leaves the only major resource issue mining and I am sure there could be fairly easy partnership with Crown agreements set up around that.
Vote:December 2nd, 2010 at 10:01 pm
Perhaps both Chris Diack and DPF are being disingenuous given that:
A. The Court of Appeal never said anything at all about this test actually.
B. And anything it did say about Maori rights was, as Chris frequently points out, simply obiter dicta, not part of any ruling
(The reason for that is because the court case was not about whether Maori owned the FS&SB, it was to judge whether the Crown did. The court found, in the ruling, that the crown did NOT.)
C. “The test required for customary title is not designed by politicians – it is the test that the Court of Appeal said was required under the law.”
The above statement is just plain wrong. the test is indeed one designed by Politicians and it is justified as being an interpretation of Maori customary law.
This from Emeritus Professor of Law at Auckland, Jim Evans completely rebutts the assertion made:
Vote:“What, then, must be proved to establish such a title? This is not entirely clear, but a rough statement is: enjoyment in 1840 of effective control held as of right under customary understandings. Nothing in the [common law] doctrine of native title requires that the holders of such a title must have maintained a continuous presence since that time, although Maori notions of territorial right seem themselves to have contained such an element. In any event, there is no good reason why Maori who subsequently failed to maintain a presence because the law failed to support their rights should lose them as a consequence.”