Response from Ngai Tahu
December 8th, 2010 at 3:30 pm by David FarrarMark Solomon, the Kaiwhakahaere (Chair) of Ngai Tahu has sent in a response to my blog post of 1 December.
I over-stated things in that blog post when I said the Court of Appeal has determined the test for customary title to be exclusive use and occupation. A number of commenters and bloggers pointed this out, and I was planning to do a clarifying post. Mark Solomon’s response does that for me. His response:
Tēnā koe David
I read with interest your comments on the 1st December Herald coverage of the Ngāi Tahu submission to the Māori Affairs Select Committee, posted on Kiwiblog on the same day, and would like to offer alternative perspectives on a couple of the points you made.
You suggested “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”. This is not my understanding of the 2003 Court of Appeal decision in the Ngāti Apa case. That decision dealt with a preliminary issue as to whether the Māori Land Court had jurisdiction to hear claims of continuing customary title in respect of foreshore and seabed. The Court’s deliberations focused on two main issues: whether foreshore and seabed was “land” for the purposes of Te Ture Whenua Māori (the Māori Land Act) and whether any historical Acts of Parliament or other legal principles had effected a blanket extinguishment of customary title to foreshore and seabed. The Court answered the first of these questions ‘yes’ and the second ‘no’.
While the Court went on to speculate as to the difficulties iwi and hapū might have in establishing customary title, it made it clear that only factual enquiries by the Māori Land Court in relation to specific areas of foreshore and seabed could resolve the matter. The only statutory test that the Court could apply to such enquiries was whether the land in question was held by iwi/hapū “in accordance with tikanga Māori” (s129(2)(a) Te Ture Whenua Māori). Had such enquiries been allowed to occur, case law would no doubt have developed in relation to the application of that test, but the Foreshore and Seabed Act 2004 (and the current Bill, if it becomes law), effectively barred the development of such case law, in favour of tests prescribed by Parliament.
The Ngāi Tahu position – that tests for customary title should be based on tikanga Māori (and not include concepts foreign to that tikanga, such as exclusion) – is therefore consistent with the legal position prior to the 2004 Act. It is also consistent with the general principle of the common law that the customary rights of indigenous peoples should be determined in accordance with the customs and norms of those peoples.
I was also concerned by your suggestion that Ngāi Tahu’s withdrawal of support for the Bill (unless the tests it contains are substantially amended) is inconsistent with earlier support for the developing Crown Policy that I expressed as Chair of the Iwi Leaders’ Group. After meeting with the Prime Minister, Attorney-General and other senior Ministers immediately prior to final Cabinet decisions on the Crown policy in mid-June, the Iwi Leaders’ Group was encouraged that the Government was moving in the right direction. In the wake of that meeting, we issued a media release in which Tukoroirangi Morgan said “We have reached agreements on important matters of principle, that provide a strong foundation for further work,” and I recorded “We still need to see further detail before being able to report back to our people, and make a final determination on the proposal.”
Sadly, when we saw the detail of the Bill (several weeks later), Ngāi Tahu was unable to continue to support the Crown proposal.
I trust that this has clarified matters. I would be happy for you to post this letter in full on Kiwiblog.
Ngā mihi
Mark Solomon
Kaiwhakahaere
Te Rūnanga o Ngāi Tahu
It’s great to get a response focusing on the policy issues around the proposed law, and I stand corrected on the Court of Appeal decision.
At times I wonder whether the easier thing to do would be to simply repeal the Foreshore & Seabed Act, and not replace it with anything – ie let Iwi have their day in court. That would run the risk of Iwi gaining fee simple title, and I also note that the Ministerial Review Group recommended against it stating:
Such a process is likely to be protracted, laborious and expensive and could result in an unmanageable patchwork of litigation. We do not see that having rights in the foreshore and seabed decided by the Common Law rules of Native or Aboriginal or customary Title or by the precedents and approaches of the Maori Land Court would facilitate our overall goal of seeking a reconciliation between competing approaches to the foreshore and seabed.
I do wonder if a reconciliation is possible? The Coastal Coalition claims that the proposed replacement law gives Iwi too much in terms of access to resources. Some Iwi are saying the barrier for proving customary title has been set too high. Is a reconciliation of those positions possible?
As far as I can see, there are four potential outcomes:
- The Maori Party remain supportive of the new law as an improvement on the old law, and it passes pretty much in its current form.
- The proposed law is changed to take account of concerns from Coastal Coalition. Impossible to imagine the Maori Party would remain supportive of such a law, which means it won’t pass.
- The proposed law is changed to make it easier for Iwi to claim customary title. My understanding is that the Government is 1000% immovable on this issue, and has communicated that at every opportunity.
- The proposed law is dropped, and the Foreshore & Seabed Act remains in force.
No 2 and No 3 are both highly highly unlikely in my opinion. No 2 is a suicide note for the Maori Party and No 3 could be a suicide note for National.
So in reality it may be a binary choice between No 1 and No 4.
Related posts:
- Iwi on Marine and Coastal Area Bill
- Ngai Tahu v Maori Council
- Iwi now argue against property rights
- Ngai Tahu infighting
December 8th, 2010 at 3:45 pm
Why? It is quite likely ACT would support such a law.
Vote:December 8th, 2010 at 4:25 pm
“I wonder whether the easier thing to do would be to simply repeal the Foreshore & Seabed Act, and not replace it with anything”
YES!!
Finally some sense over this stupid law which seems explicitly designed to upset both sides equally so as not to show any favouritism.
Vote:December 8th, 2010 at 4:36 pm
“At times I wonder whether the easier thing to do would be to simply repeal the Foreshore & Seabed Act, and not replace it with anything – ie let Iwi have their day in court.”
There are two things National is squeamish on. First it’s which forum. The Maori Land Court is a statutory creation operating under Te Ture Whenua Maori Act 1993 (it has two statutory titles it can award), it simply does not have the broad jurisdiction of the High Court nor the calibre of judge.
Second. National is simply squeamish over the general principle that this matter of what they see as public policy (i.e. a property dispute) is decided in the High Court.
The Ministerial review panel report was pretty poor regarding this issue. They largely mirrored Maori concerns about litigation costs and uncertainty of outcome in the Courts (Maori too are gaming they don’t know for certain what the Courts will determine). Frankly nor did the Ministerial Review Panel define the problem correctly (it wasn’t reconciling completing views of the law). They were outright wrong on the “patchwork issue” which we are likely to get anyway with Nationals approach which permits political deals to be done to create statutory title.
The benefit to Maori is that the Court says what the law is regarding any property interest in the seabed and foreshore held by Maori. It isn’t “reconciling different views of the law”: its determining what the law is.
Now Maori are getting an example of how politicians respond to issues – i.e. politically. They have been sucked into the notion that dealing with politicians on their assertions of property interests in the seabed and foreshore is an easier run than fusty old middle class (immune from political pressure) judges.
One should also note that restoring the right of Maori to test their assertions of property interests in the seabed and foreshore under the common law would not rule out later statutory codification of the law. This was the approach in Australia.
Vote:December 8th, 2010 at 4:56 pm
Just remember this is an advocacy piece not from a disinterested spectator.
Vote:December 8th, 2010 at 5:01 pm
I thought Solomon was ousted from that job .. still holding in there then.
Vote:December 8th, 2010 at 5:21 pm
Interesting statement this,( other legal principles had effected a blanket extinguishment of customary title to foreshore and the answer was no)
Amusing how the ACT party go on about property rights but,when push comes to shove they seem to believe in property rights for pakeha but not fot Maori.
ACT and the Nats are not thinking this through, it could cause real problems in NZ for one damn good reason, too many Maori believe the fee simple title for Foreshore is for the use of pakeha only.
A Maori, Labour government unless people can get over the perception that ACT MPs are prepared to have criminals among them as an MP, must be a good chance.
Vote:December 8th, 2010 at 6:49 pm
“Amusing how the ACT party go on about property rights but,when push comes to shove they seem to believe in property rights for pakeha but not fot Maori.”
Quite the contrary Grumpy. ACT’s position has always been we should let the courts decide: i.e. repeal the F&S Act and leave nothing in its place. That has been its position from day one in 2004. This is one of the very few areas which both ACT and the Greens agree on.
So you see, ACT really does walk its talk re: property rights. I’m surprised that as someone who obviously bothers to inform themselves, you didn’t know this particular policy already particularly since it coincides with what most Maori obviously want.
Vote:December 8th, 2010 at 6:50 pm
Actually there is a fifth option:
Have the Crown directly negotiate with Maori. Have the Waitangi Tribunal or a body like it determine the scope of the interest and offer a non-binding recommendation to the Crown who can then negotiate with Iwi to ensure an appropriately balanced settlement.
Vote:December 8th, 2010 at 8:14 pm
Or. Nothing is up for grabs. Its all belongs to the state as belonging to NZ. Remove the state funding for litigants and watch them pack their bags and go home. Just another gravy train being put in place.
Vote:December 8th, 2010 at 8:21 pm
I agree with the idea proposed above just to repeal the Foreshore Act.
It is hard to believe we have a smiling pragmatic PM who thinks he can take title of foreshore away from New Zealanders and offer it to nobody, maybe Maori, maybe lets see how the cards turn over.
The existing shambles will result in a return to Parliament of Winston Peters, who will screw Goff into oblivion.
Continuation of existing policy will result in a Labour NZ First Government next term.
The numbers of middle aged New Zealanders who are turning to Winston Peters is unprecedented.
Don’t believe me Farrar, suck Ngai Tahu arrogance and die.
How much wealth sharing among Maori have Ngai Tahu supremicists completed,
nil.
zero
Vote:December 8th, 2010 at 8:48 pm
Wasn’t the John Key position, that they would draft the new one and if it couldn’t be agreed on then the status quo (ie 2004 Labour act) would stand. I am sure that is almost a quote. What we are now seeing is more backpedaling to pretend it wasn’t said.
Also. “It is also consistent with the general principle of the common law that the customary rights of indigenous peoples should be determined in accordance with the customs and norms of those peoples”.
Now that we have signed that thing about indigenous peoples would somebody like to check the definition so that we can determine exactly who we are talking about.
And finally, since we seem to have some experts around here, can somebody give a brief history of how we come to be in this position, was the foreshore confiscated at some point, or was it sold, or what?
By the way GrumpyOldHori. “Amusing how the ACT party go on about property rights but,when push comes to shove they seem to believe in property rights for pakeha but not fot Maori”. I know plenty of Maori who own fee simple title to waterfront land or is there some other ownership at work here (ie the Riparian right stuff and if so why do only whites own that land)?
Vote:December 8th, 2010 at 8:52 pm
In the absense of anything better a repeal with restitution of the law to that immediately prior the FSSB act would be preferrable to the current socialist nationalisation of Maori title (other title is excluded). However, if such a repeal act had additional clauses proscribing rights of ownership and legal redress then it would simply be a further cynical move to circumvent natural justice.
Vote:December 8th, 2010 at 9:27 pm
better to have as much public participation in this as possible, the longer it goes on, the more that is said the more people will understand what it is really about and what these Greedy Old Horis are really after>>>>>
“With the recent announcement of the Fijian Government to give ownership of its coastal areas to indigenous tribes, it would be ideal to hope that this could offer some support to Maori arguments by is unlikely to have any effect here.
“I completely support and endorse what the Fijian Government has done. They’ve taken an initiative that this Government needs to follow. That unfortunately is not the case with the Government here; the indigenous Fijians are the majority and are in Government where as we are not,” Hingston said.
Vote:http://www.kahungunu.iwi.nz/…/FIGHTINGTALKONFORESHOREHingstonTalk.doc
FIGHTING TALK ON FORESHORE
By Kui Paki – Tu Mai February 04 – An interview with Judge Ken Heta Hingston
December 8th, 2010 at 9:53 pm
grumpyoldhori (1,506) Says:
ACT and the Nats are not thinking this through, it could cause real problems in NZ for one damn good reason, too many Maori believe the fee simple title for Foreshore is for the use of pakeha only.
………………..
Perhaps because that’s what they are being told by the likes of you who should know better and if not are a liar:
Summary of the parcels that adjoin the foreshore
Vote:owned by the Crown 7,455km 37.64%
owned by territorial authorities 6,239km 31.42%
General land 3,979km 20.05%
Maori land 2,053km 10.35% *
Unresolved 107km 0.54%
December 8th, 2010 at 10:03 pm
Amusing how the ACT party go on about property rights but,when push comes to shove they seem to believe in property rights for pakeha but not fot Maori.
Vote:………………..
An appeal to fair play which is rather canceled out when at present we have a perception that it is every citizens freedom to enjoy the foreshore and seabed, whereas you however are advocating for decendants of the indigenous people as outright owners. Your trying to soften that by claiming to have a superior culture so liberals can get on board (Tuku Morgan’s underpants aside).
December 8th, 2010 at 10:27 pm
This is consistent with Ngai Tahu’s standover approach that took place during the fisheries settlement. Small West Coast iwi that were previously of no importance to the Canterbury mob had the greatest tonnage of NZ fish quota on the doorstep of their marae. All of a sudden it was important that the continuous use and habitation of these coastal areas became subsumed to the wishes of the body corporate. Councils were set up from all round the rohe and the hapless Coast hapu’s were outvoted.
Again now it’s important that continuous tribal use not be a proof requirement for another grab.
Vote:December 9th, 2010 at 4:41 pm
The heart of the matter. People who don’t like the idea of Maori retaining orignal ownership of their property as gauranteed want ownership to be alienated from Maori by law, which was always the purpose of the Foreshore Bill and continues to be the objective of new legislation.
It’s wrong and immoral and will never quiet Maori objections because this theft will never be right no matter how many laws (trying to pre-empt the proper resolution of questions of prior fact and law) pretend it is so.
Vote: