Hikoi #2

March 23rd, 2011 at 11:27 am by David Farrar

Martin Kay at Stuff reports:

As far as numbers go, the hikoi that arrived at Parliament in the icy wind and rain to protest against the Marine and Coastal Area Bill was a faint shadow of the huge outpouring of emotion against the law it will replace.

In 2004, more than 20,000 people marched to oppose the Foreshore and Seabed Act amid angry scenes that culminated with activist Tame Iti spitting at the feet of deputy prime minister at the time Michael Cullen. By the time the crowd reached Parliament, the momentum had fuelled an unstoppable grassroots movement that gave birth to the Maori Party and, a year later, its dominance of four of the seven Maori seats.

Yesterday’s protest, by comparison, was a sedate affair, with a little over 300 people marching in silence before staging a mock tangi on Parliament’s lawn.

The hikoi was around 1.5% the size of the original hikoi.

But regardless of size, those marching have every right to protest that this law doesn’t give them what they want. They think Iwi and Hapu should have customary title to the entire foreshore and seabed, rather than only the areas where there has been exclusive and unbroken use since 1840.

Must have been nice for a hokoi to turn up to Parliament and not be called haters and wreckers and have the PM declare she’d rather meet with a sheep.

The worst “abuse” they got was Chris Finlayson who was asked what he got out fo the hikoi, and he answered “I got wet” 🙂

Bob’s testicles are back

March 21st, 2011 at 11:29 am by David Farrar

The BoP Times reports:

A war of words has erupted between former and current local National Party MPs over a controversial potential new law.

Former MP Bob Clarkson has accused current Tauranga MP Simon Bridges of toeing the party line over the Marine and Coastal Area (Takutai Moana) Bill, while Mr Bridges has said Mr Clarkson “doesn’t much like dealing with complicated issues like this”.

Mr Clarkson also said he tried regaining National’s Tauranga candidacy this year partly to stop the controversial foreshore legislation reaching law.

Bob is only one year older than Jim Anderton, so must be inspired by him.

I’m pretty confident that Simon’s majority will remain in the five figure range. He is extremely popular in Tauranga.

The Marine and Coastal Areas Bill is generating a significant level of angst – especially in provincial cities and towns.

The fact that Hone and others are campaigning against it, because they thinks the test for customary title are far too tough, indicates to me that the balance is about right.

As the NZ Herald reported, the actual difference in positions between National, ACT and Labour are not in fact great – they agree on a lot more than they disagree.

One major point of difference is that ACT believe the courts should set the test for customary title. This is an entirely legitimate view. What isn’t mentioned is that it is quite possible the courts (and it would probable y eventually be a decision of the Supreme Court lead by Chief Justice Elias) would set an easier test for customary title.

A useful article

March 11th, 2011 at 9:36 am by David Farrar

Audrey Young has done an article in the Herald, which includes this graphic above. You can click on it for a slightly larger version. We learn how similiar the positions of the six parties plus to a degree even Hone is. Here’s the summary:

  1. Repeal Labour’s 2004 Act – all 7 parties support
  2. Allow Iwi to claim customary title through the courts – 6 parties support. Hone’s stance is court not necessary as Maori already have customary title to 100% of coastline
  3. That the proposed test for customary title should be continous use and occupation since 1840 – National and UFNZ support. Maori Party say it should be easier and Hone says there should be no test. Labour, ACT & Greens say leave it to the courts to set the test
  4. Allow for negotiated settlements with Iwi, and ratified by Parliament – National, UFNZ, Maori, Greens and Labour all yes but Labour wants a court to ratify. ACT against and Hone says Maori own it all anyway
  5. A ban of selling customary title – all seven parties support
  6. Guaranteed public access to areas under customary title – all seven parties support
  7. Any change to the 12,500 private titles to the foreshore which have been purchased – no change from National, Maori, UFNZ, Laboru & ACT. Greens want private title to also be unable to be sold and guaranteed public access. Hone says it should all be put in Maori title.

I found this very helpful, because it shows that the areas of dispute are not in fact large – primarily just about what the tests should be, and whether the courts should be further involved.

Hone did a Gordon Copeland

March 8th, 2011 at 6:12 pm by David Farrar

Oh how embarassing.

The House just had the second reading of the Marine and Coastal Area Bill (which it passed). Labour gave one of their spots to Hone Harawira so he could rail against it on the grounds it doesn’t give Maori title to the entire foreshore & seabed.

Then they had the vote – and Hone didn’t vote. So the issue on which he effectively left the Maori Party, he failed to vote on.

This has happened before. Gordon Copeland left United Future over the anti-smacking law. And then he forgot to vote on the actual bill and become a political laughing stock.

Hone is finding out the hard way there is more to being an MP than just mouthing off. Sometimes you need to actually do shit such as vote.

I understand at least one member of the press gallery joked this morning how hilarious it would be if Hone did a Copeland and forgot to vote. From reports, the entire gallery almost hit the floor in laughter.

Lamest ad yet

December 22nd, 2010 at 12:53 pm by David Farrar

This ad is so cringeworthy, it deserves to be seen by a wider audience.

No wonder the creators of the video are anonymous.

Also by chance just had a coastal coalition leaflet in my letterbox. I count five factual errors in it, the largest being that the current law requires Iwi to test their claims in court.

Labour flip-flops again

December 10th, 2010 at 7:35 am by David Farrar

Audrey Young in the NZ Herald reports:

Labour has again changed its position on the foreshore and seabed, withdrawing its support for the bill repealing the current law while it is part-way through the select committee process. …

And they note the multiple flip-flops:

* 2004: Labour Govt passes Foreshore and Seabed Act asserting Crown ownership, preventing Maori from claiming customary title in court, but setting up alternative regime of rights.

* 2009 April: Labour in Opposition renounces F&S Act saying it would support law restoring right to go to court.

* 2009 Nov: Leader Phil Goff says there is nothing wrong with the way F&S Act is working and repeal would be cynical.

* 2010 Sept: Labour supports new bill designed to repeal F&S Act.

* 2010 Dec: Labour withdraws its support for the bill.

If we wait long enough, I’m sure we’ll get position No 6.

Response from Ngai Tahu

December 8th, 2010 at 3:30 pm by David Farrar

Mark 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
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:

  1. 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.
  2. 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.
  3. 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.
  4. 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.

Finlayson answers Coastal Coalition Q+A

December 3rd, 2010 at 8:36 am by David Farrar

This is a useful feature. The Coastal Coalition has a Q+A  on the Marine and Coastal Area Bill, and Chris Finlayson has responded to it with answers of his own.

For those who want to learn more about the issue, worth a read.

Iwi on Marine and Coastal Area Bill

December 1st, 2010 at 8:58 am by David Farrar

Assistant 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.

Hone v Rodney

October 20th, 2010 at 8:39 am by David Farrar

Claire Trevett at the Herald reports:

Asked about the issue on his way into Parliament yesterday, Mr Harawira refused to answer any questions asked in English and spoke only in te reo before walking away.

He earlier told Radio Waatea that if the Government agreed to Act’s request then the Maori Party should walk away from the coalition.

“I don’t see why we should sit back and let a little fat redneck like Rodney Hide put in an amendment at the last minute.”

Two ironies here.

The first is that Rodney is fitter than Hone I would say, and would probably kick his arse in a swimming race.

The second is that I am pretty sure that Rodney doesn’t care what the skin colour is of any girls who want to date his son. So Hone calling someone else a redneck is ironic.

But as Michael Laws had to apologise for calling the GG fat, will Hone be made to apologise for his comments?

If the Maori Party does pull support, it could mean the current 2004 act would stay in place. Mr Key has previously said he would not make any changes if there was not a reasonable level of consensus and the Labour Party has not yet decided whether to support it further.

Would be rather embarrassing for the Maori Party if the status quo ends up remaining.

Mr Harawira has urged Maori to make submissions opposing the bill, saying it stops short of ownership for Maori and the threshold for customary title is too high, meaning most hapu would get nothing.

Most hapu will not get customary title indeed – because that is what the Court of Appeal found. The test was for uninterrupted exclusive use. The Court of Appeal never said the foreshore belongs to all Maori.

Herald praises ACT

October 18th, 2010 at 10:00 am by David Farrar

The 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.

HoS on Foreshore Act repeal

September 19th, 2010 at 11:00 am by David Farrar

The 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.

Hone’s comparison

September 17th, 2010 at 4:00 pm by David Farrar

Stuff reports:

Osama bin Laden would have more rights to own New Zealand’s coastland under new laws than Maori according to MP Hone Harawira.

The Marine and Coastal Area (Takitai Moana) Bill, which replaces the foreshore and seabed legislation, passed its first reading on Wednesday, and while four Maori Party MPs supported it, Harawira didn’t.

At a press conference at the marae at Auckland University today Harawira said: “If Osama Bin Laden was to come into the country – and that would be easy given the sort of people running our defence forces [a reference to the Stephen Wilce saga] – and buy a piece of the foreshore and seabed he would have more rights than Maori.

No he would not. He would have exactly the same rights as any other person (including Maori) who had purchased a parcel of land which includes a portion of the foreshore or seabed.

Hone is comparing the rights of Maori to the “common marine and coastal area” to the rights of owner or private land.  Again – he misses the core difference – people have purchased private title (including many Maori).

What Hone has done is like comparing the rights of Maori over a local public playground to the rights of a private owner of a section, and he is complaining that you can do stuff on private land, which you can’t do on the playground. He misses the point again that there is a difference between land you pay for and purchase, and land you do not.

As it happens, if an Iwi does gain customary title to part of the foreshore, they can do pretty much anything on it a private owner (who has paid for the title) can do – except two things. They can’t sell it, and they can’t exclude people from it. Both things that Iwi have said they don’t want to do.

Praise, before I forget

September 15th, 2010 at 8:51 pm by David Farrar

Meant to blog this a few days ago, but kudos to Labour for voting for the repeal of the Foreshore & Seabed Act. Never easy to admit you were wrong, and that your successors have handled it better.

But more important than point scoring, is that this should be durable – with both major parties supporting it.

Why Hone is a good activist but a lousy politician

September 15th, 2010 at 9:42 am by David Farrar

The Dom Post reports:

The Maori Party co-leaders have been forced into damage control to defend their decision to support new foreshore and seabed legislation after party MP Hone Harawira pulled his vote.

The Marine and Coastal Area Bill will have its first reading today and although the Maori Party had agreed to cast all five votes in support of it, yesterday Mr Harawira said he would not allow his vote to be used.

Most politicians do not decide whether or not to vote for a bill, based on whether they are absolutely happy with it. Otherwise, no bills would ever get passed.

The usual test that MPs apply, is “does this bill improve the status quo” or will New Zealand be a better place if the bill passes, rather than not passes.

So by this test, Hone Harawira’s decision not to support the Marine and Coastal Area Bill, is politically inept – it is effectively saying he prefers Labour’s Foreshore & Seabed Act.

Now of course he does not. So why is he voting against – well basically because he can. It allows him to remain “pure”. He says he wants the entire foreshore and seabed held in Maori title.

Ironically Hone’s stance probably helps National. They can point to it, as showing they did not go too far.

But Hone’s stance is very unfair to his colleagues. Hone knows the bill can pass without him, so he has the luxury of voting against. But his colleagues are forced to deal with real  politik, and support the bill.

In terms of representing those with similar views to him, Hone is a very effective activist. But in terms of being able to achieve outcomes in Parliament, he is a pretty lousy MP. He puts his personal brand ahead of actually achieving things.

The Coastal Coalition

August 18th, 2010 at 2:00 pm by David Farrar

The Dom Post reports:

The Government is about to be hit by an advertising campaign modelled on the iwi/Kiwi National Party billboards that stirred racial tensions in the 2005 election.

Now Prime Minister John Key and the National Party are the butt of the campaign being mounted by the Coastal Coalition, a group formed out of concern the Government’s move to change the Foreshore and Seabed Act may give control of beaches to Maori.

Coalition organiser Hugh Barr, secretary of the Outdoor Recreation Association, said the campaign was set to be launched with its first six-metre-wide billboard going up in Wellington today.

The association was going to put up as many billboards as it could afford with money raised from the 8000 people who had signed up to the coalition’s website, he said. Supporters included former ACT deputy leader Muriel Newman and former National Party members, chambers of commerce and boating, fishing and marine charter groups..

The signs were designed by advertising executive John Ansell, who produced the hard-hitting billboards for National Party leader Don Brash in the 2005 election campaign.

Somehow I suspect these billboards will not be condemned by most of the left, as the Iwi/Kiwi ones were.

I’m not sure which billboard designs they finally went with, but John Ansell blogged the designs under consideration, such as:

They will certainly be noticed.

National and Maori

June 20th, 2010 at 11:00 am by David Farrar

The HoS editorial:

One of the more bracing ironies of political life in 2010 is that a National Government has developed a relationship with Maori that its Labour predecessor never managed in nine years.

The last administration was hampered by Helen Clark’s tin ear for Maori issues.

In dismissing marchers in the Foreshore and Seabed hikoi as “haters and wreckers”, she destroyed a relationship that had delivered Labour most Maori votes for almost all of the previous 70 years. That led directly to the formation of the Maori Party.

And also called the Maori Party the last cab off the rank – preferred Winston instead.

And John Armstrong writes in the Weekend Herald:

But the contrast between Labour’s turmoil after Goff’s demotion of Carter and subsequent decision to send the MP home on stress leave and National’s success in healing what the Prime Minister calls a “weeping sore” was testimony to the vast gulf in performance between the two parties and a brutal indication of the size of the mountain Labour has to climb between now and next year’s election.

While Goff was nailing Carter to the cross, John Key was nailing down a deal with the Maori Party which is a huge stride toward National retaining the Government benches after the 2011 election. …

The other question is whether Labour will carry on being so hostile to the Maori Party now that Shane Jones, one of the leading protagonists, has been sidelined.

That strategy has proved to be largely counter-productive – succeeding only in driving the Maori Party closer to National.

As this week’s deal shows, Key has no compunction about making compromises to keep it there.

While I have always thought the chances of Phil Goff becoming Prime Minister was remote, I think this last week may go down in history as the week when they became non-existent.

Without the Maori Party, Labour and the Greens need to win 62 seats to be able to govern, and on current polls they look to be a dozen seats short of that.

Editorials 18 June 2010

June 18th, 2010 at 9:09 am by David Farrar

The Herald looks for details around the foreshore law:

Unease has been generated by Attorney-General Chris Finlayson’s statement that customary title is “an ownership title”.

This creates a considerable breach with the existing 2004 legislation, which vested the foreshore and seabed in the Crown.

Iwi and hapu whose claims succeed will receive a deed giving title to a coastal area.

They will not be able to sell the property or block public access, but they will have considerable control, including the ability to veto or initiate development, permit activities, and exploit non-nationalised minerals.

He says the compromise reached between the Government, the Maori Party and the Iwi Leadership Group means that, from the staging post of the public domain, there will be few awards of customary title by the courts or as a result of negotiation with the Crown.

That, says John Key, is because the threshold for the granting of such title is high.

Iwi and hapu applicants will have to show continuous and exclusive occupation of the area claimed since 1840.

A test the Court of Appeal said would be hard to meet.

The Dom Post focuses on health issues:

Decisions on health spending are among the most difficult of all those that governments face. They can literally be a matter of life and death.

There are no easy options. Though the public purse is not bottomless, the demand for health services is. There is always a new drug that can be bought or an extra treatment that can be added, always a demand for extra dollars to be spent.

In health, the issue is always where the line is to be drawn, the line that divides patients between those who get to have the state pick up the bill and those who are told that their health needs are their fiscal responsibility.

The line being debated at the moment is who should get bariatric surgery and who should not. The operation costs between $17,000 and $35,000, but has been shown to have dramatic effects on the morbidly obese, with patients halving their weight and with weight-related health problems vanishing along with the kilos.

There are those who will say that the obese have brought it on themselves, and because of that should not be a priority for health spending.

That is not an approach that is applied elsewhere in the health system. Smokers are not told their lung cancer will not be treated because they knew the risks and continued to smoke anyway. Those who spent their summers acquiring a deep mahogany tan are not told that the skin cancer that resulted will be left untreated. And drunk drivers and the thousands of others who injure themselves because they drank too much are not turned away from the hospital doors because they made the wrong choices.

But maybe they should be, to some degree. If you protect people from the consequences of their choices, then they may continue to make bad choices.

If a smoker is told their health insurance premiums will be an extra $1,500 a year because they smoke, that could result in many quitting.

The Press drills into the oil spill:

For BP, the scale of the disaster is such that it looks as though it will bring about the end of the company in its present form. Some estimates suggest that the rapidly mounting costs for the company from the fines and damages it will have to pay could reach $40 billion. Even for a company with annual sales of a quarter of a trillion dollars and profits last year of $17 billion, that is a huge sum to absorb. Already BP has lost half of its value on the sharemarket (incidentally hitting pension funds hard) and it is possible it will have to file for bankruptcy protection and reorganise itself in order to survive. Yesterday it cancelled its dividend (further hitting pensioners and others who are invested in it) in order to pay for a $20 billion fund to meet its present estimated liabilities. The costs are clearly going to spread far beyond the Gulf of Mexico.

The environmental scope of the disaster will not be known for some time. But if the Exxon Valdez could be described as the worst oil-spill disaster in the world, then this one is catastrophically larger. Exxon Valdez was in a remote, sparsely populated part of the world and while wildlife was devastated, the human impact was small. The Gulf of Mexico is just as rich in wildlife and is also, of course, heavily populated. Those people are now seeing their livelihoods, resorts and living areas destroyed.

They have been infuriated by what they saw as a somewhat insouciant response to the calamity by President Barack Obama. It was not helped by a speech he made on Wednesday, which although it gave a pledge that BP would be made to pay for all the damage it was responsible for, also told Americans a truth they have been unwilling to hear – that part of the problem is their addiction to oil-based fuels.

But the president is correct and his remarks apply as much to New Zealanders and others as they do to Americans. Consumers’ continuing addiction to oil have driven prospecting companies to take ever greater risks to meet that continuing demand. The demand itself remains high because those risks are not factored into the price they pay for petrol and other oil products. The Gulf of Mexico disaster emphatically shows that that cannot continue. Markets are already adjusting to this new reality. Consumers will have to do so too.

As oil becomes more expensive, other technologies will become more viable.

Editorials 16 June 2010

June 16th, 2010 at 10:00 am by David Farrar

The Herald says the reshuffle is only the start for Labour:

Probably the most notable aspect of the Labour Party’s reshuffle was Phil Goff’s acknowledgment that further change is needed.

Halfway through the electoral term, his party is struggling to dent the Government’s popularity, despite the helping hand provided by policies such as the mining of the conservation estate and an increase in GST.

Clearly, Mr Goff will need to place more figures with vigour and political appeal around him before the end of the year. Yesterday’s reshuffle of positions and responsibilities should have been merely the starting point. …

Mr Goff has acted decisively against those exposed for their misuse of credit cards. A tougher test will be orchestrating a thorough Labour renewal this year.

The party’s failure to gain traction leaves Labour that option or one other – a resuffle from the bottom, in which Mr Goff and deputy Annette King are moved by their colleagues rather than the other way around.

I believe Goff is safe until the election.

The other three editorials are on the foreshore and seabed announcement. First The Press:

The 2004 Foreshore and Seabed Act was one of the most contentious and deeply flawed pieces of legislation passed by the previous government.

The act stripped Maori of the basic right to have the courts test foreshore and seabed claims and led to the split in Labour ranks which produced the Maori Party. Labour was subsequently unable to find an acceptable alternative to its legislation but now Prime Minister John Key has achieved just this, with a solution that is fairer for all New Zealanders. …

For Key and Attorney-General Chris Finlayson, the agreement brokered this week is one of the most significant achievements of their first term in the Beehive. It offers the prospect of a balanced and lasting settlement to a divisive issue which has for six years been, as Key aptly noted, a “weeping sore” in New Zealand.

And the Dom Post:

A last-minute pre-Cabinet meeting on Monday, involving Mr Key, Treaty Negotiations Minister Chris Finlayson, the Maori Party and the Iwi Leadership Group, came up trumps. In a deal that is too timid for some Maori and too bold for some Pakeha, the hated 2004 legislation will go, foreshore and seabed now vested in the Crown will become “public space”, which cannot be sold, and customary title and customary rights will be recognised by way of a new court process or direct negotiations with the Crown.

Mr Key seemed genuinely to want this agreement. He has increasingly grasped the uncomfortable fact that the country cannot move forward unless and until Maori grievances are honourably settled. With that at least partially achieved thanks to Monday’s deal, the prime minister, Maori Party MPs and iwi leaders, however, must do more than pat each other on the back. That many Kiwis are unhappy almost goes without saying.

And finally the ODT:

The Government has had its way with its favoured plan, and despite contending otherwise, has made some concessions whose effective outcome may be determined not by elected Parliament but by unelected courts – hardly a desirable situation in a property-owning democracy headed by a Government which purports to have sought “balance” in its scheme.

The Maori Party can claim a long-term gain sufficient to cover any embarrassment about its short-term compromise.

There may yet be room for adjustment, or at least for some acknowledgement of the equal status – if it still exists – of the vast majority of New Zealanders, including urban non-tribal Maori, whose future connection with the foreshore and seabed is apparently to be legally classified as of inferior virtue.

Thus does grievance lie upon grievance.

The ODT very unhappy it seems.

Harawira on FSA

June 15th, 2010 at 9:10 am by David Farrar

NZPA reported:

As Maori Party leaders hail the new foreshore and seabed legislation as a victory for their party, one of their MPs says justice hasn’t been delivered.

Hone Harawira said tonight he was “gutted” because the Government didn’t agree to give Maori title to the foreshore and seabed. …

“I’m disappointed, but not surprised, that the prime minister wasn’t bold enough to do the right thing and I’m disappointed he chose to pander to the rednecks rather than give Maori the justice we deserve.”

Mr Harawira said two Maori demands had been met — repeal of the 2004 Foreshore and Seabed Act and restoration of Maori access to the courts to test claims to customary rights and title.

“But what Maori were really after was Maori title,” he said.

This indicates very well how difficult the Government’s job was, and the gulf of expectations between what some Maori wanted, and what the Government was offering.

Hone Harawira has a world view that Maori own the foreshore and seabed – always have and always will, and the only problem is the Crown turned up and took it off them.

This is a long long way from what the Court of Appeal found. The Court of Appeal found that an iwi or hapu could make a claim for a discrete portion of the foreshore and seabed if they could prove unbroken customary usage from 1840 to the present day. They stressed this was a high threshold to meet.

So getting an agreement in the face of such diverging views, is no small achievement. It’s one Labour tried to do, but failed at.

Agreement reached on Foreshore & Seabed

June 14th, 2010 at 4:50 pm by David Farrar

It was looking wobbly, but the howls of victory from Labour were premature. John Key has just announced an agreement in principle with Iwi leaders and the Maori Party. Key details are:

  • The 2004 Act will be repealed and replaced with new legislation
  • The foreshore and seabed area currently vested in Crown ownership will be replaced by a public space which is incapable of being owned in a fee simple sense (ie can never be sold)
  • Existing Maori and Pakeha private titles would continue unaffected
  • Customary title and customary rights will be recognised through access to justice in a new High Court process or through direct negotiations with the Crown
  • The test for customary rights and for customary title under a replacement regime will be the same as in the consultation document, and reflects the position the Govt thinks the Courts would have come to if the previous government had not imposed the Foreshore and Seabed Act 2004

A bill will be introduced in August, which will be open to public submissions.

The devil may be in the detail, but on what we know so far I have to say I think it is a considerable improvement on the status quo:

  • Property rights of existing title holders are protected
  • Iwi and hapu have their right to go to court restored
  • The public foreshore will remain with a right of access to all, and can never be sold into private hands
  • The test for customary rights and title will broadly reflect the test the courts would have probably applied

Just as there is no one universal view of women, or youth, there will be no universal view of Maori on thsi deal, but I suspect it will be welcomed by the majority.

And I think many non Maori will welcome a package that restores the right of a group of New Zealanders to test their claims in court.

Editorials 11 June 2010

June 11th, 2010 at 3:00 pm by David Farrar

The Herald talks OCR:

Money markets expect this tightening by way of small steps to prompt an official rate of 4 or 4.25 per cent by this time next year, and further increases to about 5 per cent by the end of 2011.

We should not, says Governor Alan Bollard, expect the rate to rise as far as the 8.25 per cent peak of the previous cycle.

Hopefully not, but several things could knock the ship off course. One is rising inflation, the central bank’s core concern.

I think the OCR will increase beyond 5%.

The Press also talks OCR:

Now, however, as recovery begins to look more robust here and among New Zealand’s main trading partners, the central bank must consider again the prospect that inflation will spike outside its target 1 to 3 per cent range. The move yesterday was modest – only a quarter of a percentage point – but it is an indication that the bank is determined to keep inflation expectations under control.

Some manufacturers and exporters have suggested that moving now on interest rates is premature. Manufacturers and exporters, like politicians and indeed all borrowers, never welcome interest rate rises, but the criticism in this case is unwarranted. The Reserve Bank under Alan Bollard has hardly been hawkish on inflation. A sign of this is the fact that, in an effort to balance competing forces during the boom years, the bank allowed inflation to nudge outside its prescribed limits three times in the space of six years. At the moment, inflation in the future is a possibility.

I still think the range should be 0% to 2%, so a midpoint of 1% is targeted.

The Press focuses on the Foreshore & Seabed negotiations:

Last year, the Government announced it wanted to restore the right of Maori to seek customary title in court, and acknowledge the foreshore and seabed not already in private title as public domain. It held nationwide hui, with Treaty Negotiations Minister Chris Finlayson at each one. Though that impressed Maori, they did not like the “public domain” concept. They want ownership in iwi hands, the foreshore and seabed being inalienable.

Again I remind people that the Court of Appeal merely said that an Iwi could try and claim title in court, not that they would get it. They also said one would have to show unbroken usage since 1840. That is a world of difference away from saying Iwi own the entire foreshore & seabed.

What the Maori Party thinks at this point is not clear – it definitely wants the Foreshore and Seabed Act repealed but might be having to weigh up pleasing the ILG against pleasing an increasingly implacable prime minister.

As Mr Key found over the Tuhoe/Urewera matter, it is hard to placate Maori without upsetting many Pakeha or to ameliorate Pakeha fears without upsetting many Maori. He might have to reluctantly accept that the Foreshore and Seabed Act has to stay on the books.

That is an option. Another is to simply repeal the FSA and let Iwi test their claims in court.

And the ODT chides North Korea:

The jury appears to be out on the exact state of mind of the North Korean dictator Kim Jong-il, variously regarded when healthy as either cunning like a fox, borderline mad or just pathologically nasty.

It is rumoured that he suffered a destabilising stroke some 18 months ago and, at 68, is ailing. Consequently, the world’s only hereditary communist dictatorship seems to be gearing up for succession to the “Dear Leader”.

Cuba is looking hereditary also. Ironic that communism was meant to be a fight against inherited privilege.

Had there been serious evidence anywhere else in the world that a submarine of one sovereign nation had arbitrarily sunk a warship of another, in what appears to be an entirely unprovoked incident, the clamour for retaliation or justice would have been deafening.

This is my concern. You reward North Korea for being well mad.

Ngati Porou on FSA

June 11th, 2010 at 9:00 am by David Farrar

I blogged on Monday the statement by the Ngai Tahu Chairman:

Maori will refuse to forgo their rights to the foreshore and seabed and see it vested in the public domain unless private owners do the same, says Mark Solomon, Ngai Tahu chairman and member of a Maori iwi leadership group.

I labelled this as unprincipled and unacceptable.

It seems the statements of Ngai Tahi were not the agreed position of the iwi leadership group. I’ve been sent a copy of a press release from Ngati Porou:

The Chairman of Te Runanga o Ngati Porou, Dr Apirana Mahuika, said today that more dialogue between the Crown and iwi was the way to resolve the foreshore and seabed issue.

Dr Mahuika said he was dismayed by reports over the last few days that the Iwi Leadership Group and the Government have reached an impasse over the issue of private title and the proposal to putthe foreshore and seabed into the so called Public Domain.

“Media reports that the concept of Public Domain was being rejected outright by the Iwi Leadership Group are incorrect.

“At the Iwi Leadership Group hui last Friday there was no resolution passed rejecting the idea of public domain and there was no resolution passed mentioning any challenge to private title,” he said.

Dr Mahuika said that discussion on these issues had been counter productive and unhelpful when in fact the resolutions passed by the ILG were much more conciliatory than what had been reported over the last few days.

This included:

  • Recognition that what is currently on the table is an improvement on the 2004 position.
  • Support for aspects of the Government’s proposal – such as the removal of Crown ownership
    and ensuring the foreshore and seabed is inalienable.
  • Recommendation that there be further discussion and negotiation with the Crown.

I am glad to see that the suggestion that existing holders of title should have it removed from them, is not a formal position from the iwi leadership group.

Iwi now argue against property rights

June 7th, 2010 at 1:00 pm by David Farrar

The Herald reports:

Maori will refuse to forgo their rights to the foreshore and seabed and see it vested in the public domain unless private owners do the same, says Mark Solomon, Ngai Tahu chairman and member of a Maori iwi leadership group.

If this really is the position of Iwi, then I say the Government should simply repeal the FSA and let courts decide, rather than have a negotiated package.

There is a fundamental difference between existing private owners of parts of the foreshore & seabed, and the Iwi’s claims.

Existing private owners already have title, which is not in dispute. That title has generally been paid for incidentally.

Iwi do not hold title to any parts of the foreshore & seabed. All they had was a Court of Appeal decision that said they could argue for title in court if they could prove continuous usage of a discrete area of the foreshore and/or seabed since 1840.

Now I accept Iwi may have a sincere belief that they do have title, based on them being here before 1840. But that is not the law of the land, and is not what the Court of Appeal found. All the Court of Appeal found was a right to make a claim for discrete areas.

What is especially disappointing in the position of the Iwi, is how unprincipled their stance is. Many groups opposed the FSA (such as ACT and the Business Roundtable0 because it removed their rights to go to court, and supported Iwi as a matter of principle in upholding property rights. Now Iwi are arguing that the Government should confiscate fee simple titles off 12,000 persons, while giving Iwi the right to gain customary title. It is an entirely unprincipled position to take, and risks burning off support for an alternative to the Foreshore & Seabed Act.

Finlayson on The Nation

April 12th, 2010 at 1:00 pm by David Farrar

A very interesting interview of Chris Finlayson on The Nation at the weekend.

DUNCAN Well what is actually wrong with Mr Harawira’s idea of effectively Maori title, inalienable, you can’t sell it, absolute public access to all New Zealanders, what is wrong with it, is it just that it’s not politically viable for you?

CHRIS Well I think we agree on a lot of things, we agree on inalienability, we agree on public access, what I’m simply saying is that public domain provides a useful starting point, if you were to say absolute Maori ownership, I think the question that would inevitably arise Duncan is, well which Maori, which iwi, which hapu, and I think there could be a lot of cross claims, so I think that the proposal that we’ve put forward is a more sensible way of dealing with it, but look I’m out listening to folk and I’ll see what they’ve got to say.

A nice rebuttal pointing out why the idea of outright Maori Title is a bad one. I also think it is bad because there it would also take us massively beyond what the Court of Appeal said.

DUNCAN I just want to drill down into the report which came out last week about customary title, clearly the government wants to award customary title, let the courts have a look at it at least. What is customary title?

CHRIS There is absolutely no law on customary title in New Zealand, it’s a very vague concept, so what we’re saying is it’s a constrained form of property right, it doesn’t inhibit public access, it’s unable to be sold, there could be a title issue but not under the Land Transfer Act which deals with land, and so we’re not talking about that type of title, but a title could be issued under this legislation, and there’ll be rights to develop and so on, so it’s if you like a constrained property right, which will be available to those who can establish that they’re entitled to it.

Again a nice way of describing customary title – a constrained property right.

DUNCAN So would it allow for instance an iwi with a customary title say in the Bay of Plenty to do a partnership deal with if you like the Chinese government who come forward with a 100 million dollars and say we want to build a number of resorts on your land, lease it to us over 100 years, would Maori with customary title and iwi be able to get away with that?

CHRIS Oh yes but they’d be subject to the Resource Management Act and subject to the other if you like general pieces of legislation, it’s not proposed that this would be a sort of a self governing entity once it was established, so any kind of development would be subject to the usual RMA principles.

This part has got a few people talking, but people should note a number of key things. The first is any development could not be done on beaches – only on the foreshore which is the area between high and low tide.

The second is that as there is no right to block access, building a resort would be very very difficult. And thirdly one would still have to pass the RMA hurdle which would be massive if it was proposed for an area of popular frequenting.

The key thing Chris made clear is that Iwi can use customary title for commercial purposes, subject to the RMA. And this is no surprise to those who have followed the issue, as it has always been about commercial development to some degree – back to the original court case.

CHRIS Well there are two classes of minerals I think we have to talk about, because pre 2004 petroleum had been nationalised, in fact was nationalised by the Labour government in 1937, silver and gold and uranium have always been nationalised minerals, so then there are the other minerals, you’re quite right that that is an issue that I imagine folk are going to want to raise with me, and I’m listening to what they say, and I’m also talking with Gerry Brownlee about that issue.

DUNCAN So are you effectively saying here this morning that you perhaps are willing to compromise around that minerals issue because it’s quite important to Maori, well certainly the Maori I’ve spoken to.

CHRIS Oh I think the socalled traditional reserved ones, Gerry’s already said are off the table, I’m prepared to hear what folk have to say in the course of my hui and public meetings, and then I’ll report back to the Cabinet.

DUNCAN So you’re not ruling out a possible compromise there are you, because right now as we look at your proposal it basically repeals and holds on to that, so you’re not ruling out a compromise with iwi after this series of hui?

CHRIS Oh I’m saying that I can rule out petroleum, uranium, silver and gold, I’m prepared to listen to other people on those other minerals.

Ruling things out in advance of consultation tends to be counter-productive. That does not mean the Government has agreed to them. Also worth noting that this is not about minerals in the entire seabed – only in areas where a claim to customary title is accepted.

What would be interesting is what minerals, outside the four excluded ones, are in the seabed?