Kiwiblog

The Herald welcomes the legal aid changes:

Criminal defence lawyers have escaped remarkably unscathed by the damning report they received from a ministerial inquiry into legal aid last year. Decisions announced by the Justice Minister, Simon Power, this week will impose requirements on publicly financed lawyers that are no more than reasonable and long overdue. …

It will be interesting to see how well a full-fledged Public Defender Service competes with the car-boot brigade. Mr Power has been advised that the costs of setting up the service can be recovered in lower operating costs. It is hard to believe lawyers working in public service conditions can match the efficiencies of those who work with low overheads and greater mobility, but we may see.

The difference may be in the remuneration lawyers at the PDS get, compared to the income a car boot lawyer can make from legal aid.

The Press is concerned over the proposed Fijian media controls:

The freedom of the media clearly remains a totally alien and undesirable concept for Fiji’s self-appointed leader, Commodore Frank Bainimarama. …

The decree, to be enforced by a media authority appointed by the regime, would provide for fines of NZ$344,000 for news organisations that failed to comply with it.

Individual journalists whose work was deemed to be critical of Bainimarama’s regime would face fines of up to NZ$69,000, which would be crippling in Fiji, and a possible five-year prison term. To ensure the authorities knew who had written a story, it would also be an offence not to identify the journalist concerned.

And

The regime claims its decree is intended to encourage responsible journalism, but nothing could be further from the truth. Rather, it aims to ensure the news media cannot perform its democratic role of holding Bainimarama’s unsavoury government to account and promoting free and frank debate on issues of public interest.

Absolutely. I want to believe that the Commodore has a plan to put in place a non race based constitution, and return to democratic elections in 2014. But his actions point towards an ongoing dictatorship.

The Dom Post focuses on the Princess Ashika ferry tragedy:

The report of the Tongan royal commission of inquiry into the sinking of the ferry Princess Ashika has laid bare a system of government as riddled with flaws as the ship was with rust – and just as dangerous. …

However, it is up to the king to deal with the systemic ones that allowed people such as Lord Dalgety QC (the title is Tongan), now resigned transport minister Paul Karalus and Prime Minister Feleti Sevele into pivotal roles in his kingdom. The report notes that Lord Dalgety, the Shipping Corporation of Polynesia company secretary, “clearly lacks integrity and honesty, even when giving evidence before a royal commission” and that “he was not a fit and proper person to be a company secretary of any company in Tonga”.

I have some friends who have lived in Tonga. They alerted me to the vileness of Lord Dalgety some time ago, and what I have seen of him on television reinforces their view that he is a deeply corrupt and racist individual. His arrest was a very good thing. While I don’t condone Wikipedia vandalism, I did have to laugh at the edit done to his Wikipedia profile which said:

On February 26 Lord Dalgety, the Secretary of the Shipping Corporation of Polynesia Ltd, gained an entry in the Guinness Book of Records as the world’s lowest form of life

Back to the editorial:

What must not be forgotten in all this is that 74 people drowned. No women or children survived. The impact in a country the size of Tonga is, as commentator Josephine Latu has pointed out, the equivalent of 3200 New Zealanders dying. The Princess Ashika tragedy was a scandal that cannot be repeated.

Absolutely. And may the tragedy bring about some democratic reform.

The ODT talks foreshore & seabed:

Just let us pause for a moment: if the legal status of the foreshore and seabed is to be “public domain”, then who owns it, and therefore can claim the rights and benefits of ownership?

Will Maori?

Will Mr and Mrs Joe Bloggs?

Will the Crown – the obvious choice?

On the basis of the options paper published by the Government last week, in which “public domain” is the Government’s preferred choice, the issue of ownership most likely will be determined in the long term by the courts, piece by piece, over time.

Well yes courts do determine rights. The ODT editorial writer (whom I suspect is the former Labour Government Press Secretary) presumably prefers the status quo where the right to test your rights in court was extinguished.

The Herald focuses on the SFO:

Helen Clark’s Government threatened to abolish the SFO and merge its functions with a police unit.

Having survived that, the SFO is now facing a renewed barrage of criticism and an overhaul that seems likely to comprehensively change its mode of operation.

Judith Collins, the Minister Responsible for the SFO, has talked of rebuilding “its capabilities after years of political neglect”. …

The upshot appears to be that five senior staff with more than 70 years of fraud investigation experience among them, including Gib Beattie, the present assistant director, are unlikely to reapply for new roles.

All have been involved in high-profile cases, including, most recently, that of ASB Bank fraudster Stephen Versalko. If they depart, the SFO will lose a huge fund of institutional knowledge.

It will surely face a greater struggle to combine with other regulators to ensure the “speedier, united response to cases of suspected fraud” demanded by Ms Collins.

Too much of the criticism of the SFO has been over the top. It should not be the whipping boy for the finance-company debacle and nor should it be restructured in such a way that valuable experience is driven away.

If a wiser approach is not adopted, white-collar criminals will be the only winners.

In the end, the SFO will be judged on its results.

The Press calls for goodwill on the foreshore & seabed issue:

In recent New Zealand political and social history, few issues have been as divisive as the foreshore and seabed. This controversial debate was triggered by the Court of Appeal ruling in the 2003 Ngati Apa legal action, which suggested that in some narrow cases iwi might be able to convert customary title into freehold title.

For the then-Labour Government, this raised the spectre that Maori could end up controlling sections of the coastline and limiting public access. Labour over-reacted by passing legislation that placed the foreshore and seabed in Crown ownership, albeit with a process for recognising customary rights, and this triggered the formation of the Maori Party.

Now, National has offered an olive branch to iwi and the Maori Party. It is, inevitably, a compromise solution but, with goodwill on all sides, it does have the potential to heal the lingering sore that has been the foreshore and seabed issue.

People should not be surprised that most Iwi will say they want more, than what is in the proposed solution. To some degrees, this is like any other commercial negotiation. You never have one party say “Oh well actually I think we have enough money/resource, so we won’t try and get any more”. Of course you do.

But this tension is not the only reason why the Maori Party has been circumspect in its reaction to National’s foreshore and seabed proposal. Maori leaders will want to be seen as pushing for the maximum concessions possible.

The party will be acutely conscious that within its ranks are those who would agree with its MP Hone Harawira’s view that Maori should have full ownership, rather than just customary title.

And that is a view some may have. But that is not what the Court of Appeal ruled. In fact, it is a million miles from what the Court of Appeal said.

But this would be totally unacceptable to National, and Prime Minister John Key has delivered a blunt warning that if he cannot forge a consensus around his party’s proposal, then the status quo will prevail.

Given that the Maori Party was originally formed to get rid of the hated foreshore and seabed legislation, the chance to achieve this and to get customary title through the courts is one which, while not ideal for all iwi, should still be firmly grasped.

And so far, there does seem to be goodwill.

The Dominion Post looks at Labour’s plans for Wellington City Council:

The Labour Party has announced it will relaunch itself into local body politics, and put up a slate of council candidates as well as, perhaps, someone for mayor.

So Labour want to take over the Council. I’m tempted to joke that at least it makes it easy to know who not to vote for, but in fact I don’t vote purely on ideological lines for local bodies. I regard (for example) that Ray Ahipene-Mercer does a good job as a Councillor, and he is left of centre. Celia Stephanie Cook also does a reasonable job, and she is Green.

Does Wellington want local body politics to return to tribal affiliations? Would that be good for the city?

The answer is “maybe”. Having a stance thrashed out at caucus meetings – which MPs hold regularly – before council meetings might mean that the fractious debate that so marks Wellington City Council disappears. Arguments would happen within the caucus instead.

That might improve the council’s public reputation.

On the other hand, councillors who represent a political party would be subject to the party whip – that is, be forced to toe the party line – or risk being dropped from the party ticket at the next election.

The same might be true, of course, of those who rely on Sir Robert’s patronage when or if they stand in October.

Party politics have their place. That might be around a council table. But cleaving to rigid ideologies is no substitute for considered thought, which is what ratepayers vote councillors into office to provide – especially when Wellington’s future is at stake in a post-Auckland super-city environment.

The over-riding concern of any councillor must surely be what is best for the city they have the honour to represent.

That is not possible for Labour Councillors. I agree a ticket can sometimes be of value, to get a coherent agenda through. But tickets are best as groupings of like minded people, but not as a party that bans Councillors from voting against the majority.

Labour has specific rules on local body elections.

• Rule 87 bans party members from standing as Independents if Labour contests the election
• Rule 91 requires candidates to sign a pledge that they will vote in line with the Caucus for that local body

So be aware, if you vote for a Labour candidate, you are voting for candidates who are forbidden freedom of opinion on any issue that comes before Council.

The ODT focuses on land in Africa and New Zealand:

During the past two or three years, as many as 20 million hectares of African land, an area equivalent to all the arable farming land in France and worth about $US20 billion-$US30 billion, have been acquired by countries such as Saudi Arabia, Kuwait and China.

These vast tracts have been either bought or leased to grow staple crops, or biofuels, which are then repatriated, says a 2009 Economist magazine article. …

It is partly against this background that attempts to buy up large parcels of New Zealand land should be considered.

The latest such move came to light on Wednesday when it was reported that a company, Southern Pastures, registered in Auckland, is seeking $500 million from local and offshore investors either to buy outright or controlling shares in farming concerns thoughout the southern hemisphere, but with a bias towards New Zealand. …

Leadership is required, and care needed, to devise policy on how New Zealand will play its part in the food supply chain over the next several decades.

On the one hand, the country requires inward investment to develop further aspects of food production infrastructure; on the other, once the land is gone, it is gone forever.

Measurable gains from such sales will need to be demonstrably substantial and long-lasting before they can be permitted.

If we ban Chinese firms from investing in NZ farms, then we can’t complain if China bans Fonterra from investing in Chinese dairy operations.

The Herald approves of the balance in the foreshore & seabed proposal:

Division over the foreshore and seabed sparked a political upheaval, with Maori finally becoming an independent force in Parliament. Five years on, the Government, as part of its post-election agreement with the Maori Party, has revisited the issue. The outcome is an elegant compromise that has more of the attributes of a continuum than a radical response to the much-maligned Foreshore and Seabed Act. The proposal, outlined in a consultation document, will now be the subject of public submissions. It should attract widespread support.

Let’s hope.

The nub of the Government’s plan guarantees recognition of Maori customary rights while safeguarding all New Zealanders’ access to beaches. Central to this is the proposition that no one owns or can own the foreshore and seabed. The area would be called a public domain. Maori would again have the right to go to court to establish customary title, but not freehold title. This differs markedly from the 2004 act, which extinguished claims for customary title by vesting ownership in the Crown.

And the right to go to court is what it is all about, for many.

The Dom Post zeroes in on perks:

Finding the trough too high to get your snout all the way in? Don’t worry, the Speaker will be along with a saw shortly.

Want to treat your electorate committee but don’t want to dip into your own pocket? Don’t worry, just make sure you use the right slush fund.

Want to take the family on the train to Kaikoura for a spot of whale watching but think you’ll need a car while you’re there? Don’t worry, the taxpayer will pay for a driver to bring the ministerial self-drive down from Blenheim – and for another car and driver to take the first driver back.

Just so long as you are a minister of the Crown.

Ouch, very scathing.

And the ODT opines on tasers:

Last weekend Tasers, otherwise known as as “stun guns”, made their debut in the South Island.

Not before time, many would say, given the alarming frequency with which police men and women have been assaulted in recent months. …

Nor does there appear to be any constructive advice forthcoming on how, precisely, police are supposed to deal with drunk, drugged or otherwise crazed individuals who pose an evident risk to the life and health of law enforcement officers, but also to members of the community.

As has been suggested, the committee’s thinking on such matters appears to be devoid of any of the context and harsh reality that faces the police every day in this country.

Which is why we will ignore them.

John Armstrong writes:

National’s long-awaited prescription for healing that weeping political sore otherwise known as the foreshore and seabed should be grabbed with both hands by the Maori Party.

It will not get a better deal than the one outlined in the discussion document released by Attorney-General Chris Finlayson yesterday. National has stretched beyond the normal limits of its flexibility to come up with a lasting solution.

A stark assessment.

The arrival (finally) of Finlayson’s discussion document heralds Decision Day for the party, however. It can no longer cling to the foreshore and seabed like some kind of comfort blanket.

It is now or never – or, at least, not for a long time to come.

That means swallowing National’s intention to make the the foreshore and seabed a “public domain” which no one owns, something which sticks in the craw of Maori who insist ownership of the foreshore and seabed is their inalienable right.

That can be insisted upon, but in no way is that what the Court of Appeal ruled.

The 65 page full consultation document is here.

The key aspects are:

• repeal the Foreshore & Seabed Act 2004
• no one to “own” the foreshore and seabed, placing it in the public domain
• guaranteed public access to all, subject to certain limitations in discrete areas (such as health and safety restrictions around ports, or restrictions around urupa/burial grounds)
• recognition of customary rights
• protection of existing use rights to the end of their term
• restore the right to go to Court to establish customary title, based on common law principles
• customary title will not be able to be made into freehold title
• no change to current private ownership of any parts of the foreshore & seabed
• two tiers of rights can be sought – customary title and customary rights

I think this is a significant improvement over the current law. It passes the two critical tests of guaranteeing public access, and of restoring the right to go to court to pursue common law and other rights.

I also like the idea of the foreshore and seabed being in public domain, with no ownership at all. That means it can’t be sold without special legislation. It also means that the 30% in private ownership won’t increase.

I’m all for private ownership of most things – but not the foreshore.

A key issue unresolved is whether any claims should go to the High Court or Maori Land Court or both.

This issue is hugely complex and Chris Finlayson has done very well to get this proposal out there. Maoridom does not speak with a single voice, so doubtless there will be varying degrees of support for it, but I hope most will see it as an improvement over the status quo.

I also hope most non-Maori will agree that it is a bad precedent to have the Government remove the right of any group of New Zealanders to test their legal rights in courts, and that repeal of the FSA will be a good thing.

This is stage three of a four part consultation process.

The first stage was people submitting their views to the expert panel.

The second stage was people submitting their views on the recommendations of the panel.

This third stage allows people to submit their views on the proposals in the paper.

And after this consultation, a draft law will be drawn up, and the fourth stage will allow people to submit on the proposed law.

The process of genuine consultation can be almost as important as the substance of the issue. It was partly the then Government’s high handed nature with the FSA and EFA that galvanised opposition to them. The EFA was drawn up in secret and the FSA started life by having Clark and Wilson declare they would legislate no matter what.

Matthew Hooton’s Exceltium has just put out a newsletter (EQ Summer 2010) focusing on the Foreshore & Seabed issue.It is a very interesting analysis of the extensive background to the issue, and some of the risks the Government faces. It is a complex area.

My firm, Curia, did some polling of New Zealanders on the issues around the Foreshore & Seabed, and Matthew talks about some of the interesting findings:

There is evidence of considerable public goodwill towards resolving the foreshore and seabed issue in a sensible way. According to the Curia polling carried out for Exceltium, 64% of the public support a reconsideration of the Act, including 54% of those who voted Labour in 2008, 69% of women and a massive 72% of those who voted National. This is despite 44% of the public saying they are happy with the ways things are now, with only 39% disagreeing with this proposition.

So most Labour and National voters support a reconsideration, but some also say they’re pretty happy with the status quo.

Neither main party’s handling of the issue in the mid 2000s now scores well among the public. There is strong agreement that Labour handled the issue poorly, with 46% saying its handling was “poor” or “very poor”, and only 16% prepared to say it was handled “well” or “very well”. In contrast to what polls suggested at the time, more people (36%) now claim to have disagreed with Dr Brash’s Orewa speech than those who say they agreed with it (25%). Remarkably, only 12% of National voters in 2008 now say they “strongly agreed” with their former leader’s speech. These figures suggest a degree of revisionism by voters about their own opinions in 2004.

I was surprised at how much opinion has changed over the five years. To some degree I think this is because of the media constantly referring to the Orewa speech in such negative terms.

As many as 70% of respondents to the Curia poll say they are “not at all informed” or only “a little informed” about the issues around the Act. Just 8% say they are “highly informed”. This is confirmed by the fact that 36% of New Zealanders believe that less than 10% of the coastline is currently owned privately and only 20% of people believe more than 20% of the coastline is in private hands. In fact, about 30% of the coastline is currently owned privately.

The unbroken Queens Chain is more myth than reality.

Of propositions tested by Curia, overwhelmingly the public agreed most strongly with the statement “the Government should ensure equal access to the foreshore and seabed for everyone”. As many as 59% of people strongly agreed with this proposition with another 27% somewhat agreeing. Just 6% disagreed. Access overwhelmed even ownership as an issue with 62% agreeing with the statement “I don’t mind who owns the foreshore and seabed, so long as I can access the beach whenever I want to.” Consistent with this, 59% say “private owners of coastal areas shouldn’t be allowed to exclude the public from using the area.”

Access is not the only issue, but for most Kiwis the biggest issue. They want more access, not less.

Second only to agreement with the proposition about equal access was agreement with the statement “the Government should not pass a law to remove the right of any group of New Zealanders to take a claim to court.” As many as 62% of New Zealanders agreed with that statement – 30% strongly agreeing – and only 21% disagreed. Half the population
agree with the statement “the courts are the right place to decide who owns the foreshore and seabed” with only 31% disagreeing.

That was 3:1 against the Government removing the right to take a claim to court.

“Special rights ” for Maori opposed but “custo mary rig hts ” ok

In contrast with the view that the courts are the best place to resolve the foreshore and seabed issue, 48% of respondents to the Curia poll agree the Act was “too generous” to Maori as it gave them “special rights”. It is not clear what the public defines as “special” because 53% of the population appears to agree the law should provide for local Maori to undertake customary activities on beaches where continuity of use since 1840 can be proved.

It is interesting how some people say they are against “special rights” but they are for “customary rights” when it is explained what these are.

What was also very interesting (to me anyway) is that some people said they both agreed the Foreshore & Seabed Act was unfair to Maori as it took away their right to go to court, but also that the FSA was too generous to Maori as it gave them special rights.

Now some of this may just be the way the questions are worded – they were designed to see how people respond to the issue being framed that way. But in fact, in my opinion, it is quite valid to have a view that the FSA was both unfair to Maori and too generous to Maori.

I’ve blogged on this before, but it comes down to the difference between depth and breadth.

In my opinion the FSA was unfair to Maori as it legislated away their chance to test in court their claims to foreshore usage, right down to the possibility of gaining title in some areas. This was unlikely, but it was possible. And if the law is that title exists, then that has to be negotiated away or compensated.

But while the FSA reduced the depth to which a claim could go, it increased the breadth. It made it much easier for a wider range of Iwi and Hapu to claim rights over a greater area of foreshore & seabed than the Court of Appeal decision would have probably allowed.

Now some in Labour claimed their FSA gave more to Maori than they would have got in court. Parekura Horomia said this in a debate with Derek Fox. Fox’s response was that may be the case, but they would the precedent of legislating away the right to go to court, in return for a unilateral “gifting” of rights is a bad one.

It will be interesting to see what proposals emerge from the Government. Exceltium strongly advocate that the matter should return to the courts. It is a pity that Labour in 2004 did not appeal to the Privy Council, rather than legislate, so we would have had the benefit of a definitive legal ruling from our (then) highest court.

This has the potential to get interesting. Firstly Goff does a further u-turn on the foreshore and seabed:

Opposition leader Phil Goff has indicated Labour is backing away from its stance of allowing customary title of the foreshore and seabed to be awarded to iwi that meet the criteria involved.

Labour’s submission to the review of the Foreshore and Seabed Act earlier this year recommended the legislation be amended to allow customary title, rather than simple redress and protection of customary rights. …

Asked to clarify whether that meant its position on customary title had changed, Mr Goff told the Herald he remained open to considering it but would first have to be convinced it was necessary.

So Phil Goff is advocating a position different to Labour’s own submission on the law. As expected, this is causing some tensions within Labour, according to Vernon Small:

Labour leader Phil Goff will be asked to explain his controversial “nationhood” speech at next week’s party caucus meeting.

Discontent, especially on the Left of the party, has centred around Mr Goff’s comments on the foreshore and seabed policy.

A Leader who has to “explain” a speech to Caucus has some problems.

Labour sources said Wellington Central MP Grant Robertson questioned the speech at last week’s caucus meeting. He was again expected to be prominent among those expressing concerns at next Tuesday’s caucus meeting.

It is significant that Grant is leading the charge, for several reasons.

The first is that Grant will just be doing his job as a local MP. Wellington Central is a very liberal seat, and Labour activists there are very liberal. I have no doubt Grant will have been bombarded by supporters asking what the fuck is going on.

The second is that Grant is often (correctly) described as a future Labour Party Leader. Despite being first term, he is a heavyweight in caucus. Having Grant criticise a speech by the Leader, is not the same as having George Hawkins criticise it.

The third is that Grant is clearly from the leftish faction in Caucus. Now under Helen Clark factional warfare almost ended, and the factions were informal and flexible. But Goff’s speech and the reaction to it, may be the start of the factions becoming a bit more significant.

Sources said the party’s ruling council had already asked Mr Goff to explain the speech on Saturday .

“There will be questions at caucus on Tuesday,” one senior MP said.

The party’s council is almost exclusively from the liberal left side, so this is no surprise.

But another discounted a move against Mr Goff’s leadership, saying the concern should not be read as a sign of “deep divisions” in the party.

Oh absolutely it is premature to start talking of moves against the leadership. Such a possibility would not be considered until late 2010 at the earliest, and even then only if the polls remain dire after the 2010 budget.

The Herald editorial:

John Key struck an optimistic note as he confirmed that the foreshore and seabed law would almost certainly be repealed and a replacement found. “I think this is not as difficult as everyone says. I’m not saying it’s not challenging. But it’s not impossible,” he said.

The challenge is what is in the replacement.

Mr Key has pointed out that there is still the option of repealing the law with no replacement. This would mean a return to the status quo and allow claimants to test cases in the Maori Land Court and the High Court.

While it is an unlikely option, it makes a big difference that it is not ruled out from the beginning. This means that any agreed solution is deemed preferable to simply repealing the law.

The Maori Party expects a replacement policy by the end of this term of government. Labour has pledged to act constructively. The bottom line for the Government will be New Zealanders’ continued unfettered access to the beach. The Maori Party will have ease of recognition of customary rights as its top priority.

That suggests claims will be kept out of the hands of judges, and this will be a process of tinkering, not transformation. The change will probably be minor. But tackling them in a wholly different atmosphere will be a major improvement.

I’m not sure how major or minor any changes will be, but a genuine negotiations does produce better outcomes that insisting from the beginning that retrospective legislation will apply.

Tim Watkin at Pundit looks at what to expect:

First, Maori will be wanting a single, national settlement, but one that can be negotiated hapu-by-hapu. It’s extended family units rather than whole iwi that have the strongest connections to this or that part of the coastline; that’s where the legal relationship should be defined.

I think Tim missed a not before “a single, national settlement.

A hapu based approach is sensible, as under the common law, you have to show customary use.

Next, there’s little chance of Maori winning simple fee title – at this stage at least – over the foreshore and seabed they say has belonged to them since humans first arrived on these islands. But then most Maori aren’t demanding that. Maori ‘ownership’ will be restricted to guardianship; they won’t be able to sell or buy the land. It will be held in some form of customary title that is inalienable.

And there was very little chance of a court granting simple fee title. One reason Labour did not need to panic and legislate.

How might they do that? One idea that I’m told has been part of negotiations – and I’ve had this from several sources – is ‘tipuna title’ (tipuna meaning ancestor). That is, the foreshore and seabed in question would be ‘owned’ not by anyone living, but by a hapu’s primary ancestor. That way it can never be sold. However it’s also been suggested to me that National may have ultimately poured cold water on the concept.

That could be interesting. Some may say this is all just symbolism – but symbolism can be incredibly important.

For one Maori friend I spoke to a few months ago spoke with real feeling about the relationship he and his family have had with an estuary for more than 600 years; they just want that relationship to continue. They would never sell. Indeed, rather than sell, they may exploit and develop. As I wrote a few months back, it’ll be interesting to see how the government deals with the issue of commercial development of these natural resources.

Commercial use is part of what drives this. Who gets to farm for mussels etc?

Which suggests that one of the most surprising things to stem from this ‘repeal’ could be just how little the law actually changes. While fundamental new interpretations will be needed, everyone involved will be keen to ensure as little political and legislative upheaval as possible.

It is possible the law changes will not be mammoth. But there is a difference between a law change negotiated in good faith between two parties, and a law change unilaterally announced three days after a court case has been lost by the Govt.

Sir Douglas does a very neat Q&A in the Herald. Extracts:

What are customary rights and a customary title?

The common law has always recognised the right of indigenous people to carry on practising their customs. These may be non-territorial customary rights such as fishing and hunting, or a territorial customary title where they actually lived.

These are common law rights. Not rights under the Treaty of Waitangi. Not rights due to signing a UN convention.

Is a customary title like my freehold title?

No. Customary title is unique and quite unlike freehold land. It is normally communally owned and exists to permit the indigenous people to practise their customary activities on it. My freehold title is a Crown grant.

So freehold title comes from the Crown, customary title from commnal indigenous customary use of the land.

Do Maori have to prove a customary title or is it theirs by default?

Maori have to prove it exists by demonstrating on the balance of probabilities that an iwi was in exclusive possession of the land at 1840 and have continued to practise customary activities on it ever since. In Australia a spiritual association may suffice.

And this was the stupid thing about Labour’s panic. Not that many areas would be able to have customary use proven.

How is a customary title lost?

Once proved to exist, a customary title can be lost by abandonment, by surrender to the Crown, or by extinguishment by Parliament. While it is a customary title it is inalienable.

Abandonment is similar to a failure to exercise ahi kaa. If extinguished by statute the intention to extinguish must be clear and usually some compensation is due.

So it can only be removed by explicit legislation, and up until Labour’s law this had not happened.

Is it possible iwi could establish a customary title to the foreshore or seabed?

It would be very difficult for any iwi to show that in 1840 they were in exclusive possession of the seabed, particularly as much of it was not under New Zealand’s jurisdiction until long after that. Nor is it likely they could show they have maintained possession of the seabed close to shore since.

It’s possible there may be remote areas of foreshore from low to high watermark where it could be proved.

Again there was no need for Labour to legislate.

John Roughan joins Chris Trotter (and most of the media) in blaming the foreshore & seabed legislation on Don Brash. He writes:

A backlash encouraged by Don Brash revived the National Party and unhinged Helen Clark’s government. Labour’s legislative cancellation of the court decision alienated one of its most loyal constituencies, giving birth to an independent Maori Party that bids to be a permanent force in our future.

The Court of Appeal decision was on the 19th of June 2003. Helen Clark said that she would legislate on the 20th of June – the next day as it was an issue for Government, not for Judges.

Don Brash was not Leader of the National Party until November 2003 – five months later.

So to write that a backlash encouraged by Don Brash unhinged Helen Clark’s Government in relation to the seabed and foreshore is simply false. Clark made the decision months before Brash was leader.

My weekly Dispatch from St Johnnysburg is online at NBR. It is on the Foreshore & Seabed Act review, and some of the history of it.

I had previously mentioned that Helen Clark announced just four days after the Court of Appeal decision she would legislate. It turned out I was wrong. A search of the NZPA database, when researching my column, found Helen said this the day after the decision:

Helen Clark says decisions on such things are the preserve of Government policy and not the courts. …

Miss Clark says the Government will legislate if necessary to preserve the status quo.

So Helen in fact decided to legislate within 24 hours of the decision. She chose not to appeal it to the Privy Council as it was a matter for “Government policy” and not the courts.

I also detail some of my involvement in National’s Beaches for All campaign:

This placed National in a bind. What do we do? The decision was made that if Labour were promising to legislate, then National’s job was to hold them to account for that promise, and make sure they do. Then was born the “Beaches For All” campaign. I think I was the one who actually came up with the slogan. I recall a debate with an MP that technically the ruling did not apply to beaches, but just the foreshore below high water mark. My response was that at low tide, that is a beach – just a damp one …

I mentioned my involvement in the Beaches For All campaign a couple of months ago to a 2005 MP who is now a Cabinet Minister. He quipped “So you were one of the guilty ones”. I admitted guilt and said that I was of course just doing my job. His response (with a smile) was “Oh, yes just like Nuremberg”.

Feedback and comments, as usual, can be made at NBR.

John Armstrong writes:

It is still early days and things could yet unravel over the detail.

But if politics is the art of the possible, then Finlayson’s and Sharples’ independent panel’s revisiting of the vexed question of ownership of the foreshore and seabed lays the foundations for achieving the seemingly impossible – an enduring cure for a longstanding political headache.

The panel’s review of the Foreshore and Seabed Act – required under National’s confidence and supply agreement with the Maori Party – has set solid benchmarks within which the two parties can negotiate the provisions of legislation to replace the law.

Good faith negotiations is preferable to unilateral retrospective legislation.

The NZ Herald editorial:

Six years does not seem a long time in the sweep of history yet it is time enough for a change in the political climate. The recommendation the Government received yesterday to repeal the Foreshore and Seabed Act seems unlikely to arouse the heat and fear that greeted the Court of Appeal’s 2003 ruling on Maori customary claims. Public opinion is probably no less committed now than it was then to the principle that public access to coastal attractions must not be compromised. But the constant assurances of claimants that access is not at risk appear to have become generally accepted.

And it is helpful the panel has stressed that at length.

Vernon Small writes in the Dom Post:

Politically, the report is a triumph for Tariana Turia and the Maori Party, and the involvement of National in any deal should help limit any Pakeha backlash.

(It is often easier for a party to make radical changes outside its traditional ideological envelope. Labour was able to go much further with privatisation and free-market reforms in the 1980s, before the public rebelled, than National ever could. National was able to get the Treaty settlement process steaming ahead under Sir Douglas Graham in a way that might have raised suspicion if Labour had been in the driving seat.)

Time – and other more pressing issues, such as the economic crisis – have helped put the debate into context.

It is just such a shame for us as a nation that a court ruling which found that, in some rare cases, iwi and hapu could have a set of residual customary rights amounting to freehold title could ever have been allowed to generate so much angst – and racial and political heat – as this one did. The two basic principles – that legal rights should not be unfairly seized and that access to the beaches and freedom of navigation would remain a general right – should have been indisputable.

Colin Espiner blogs:

I’ve just had a very quick read through the Ministerial Review of the Foreshore and Seabed Act 2004, which has been released under embargo until 3pm.

It’s three volumes long and runs to hundreds of pages, but in a nutshell what is says is this: the Foreshore and Seabed Act is discriminatory to Maori and should be repealed.

Hardly a surprise, given the panel was hand-picked to provide just such a judgment by the Maori Party – indeed, Pita Sharples threatened to sack it if it didn’t come back with such a finding.

The panel is savage about the Foreshore and Seabed Act, calling it “simply wrong in principle and approach”, discriminatory, and indeed so unfair to Maori that it considers that a Crown apology is necessary.

I have a smile on my face as I think of the look on all the Labour MPs faces as John Key gets up and apologises on behalf of the Crown to Maori – not for something done 150 years ago, but for the actions of Helen Clark’s Government earlier this decade.

The panel recommends a national settlement that gives Maori customary title to the foreshore and seabed, alongside specific usage and access rights to local iwi depending on their claim. It says some form of public right to access and navigation also needs to be written in.

It says that in the meantime, an interim act of Parliament should be passed repealing the legislation, setting up the process for the new system, recognising both Maori title and public access issues, and allowing the Crown to hold legal title until the whole thing is settled.

It’s not a bad compromise, I have to say, and I’m actually pleasantly surprised. I’ve said before that a return to court could be a nightmare for all sides, and the whole thing would drag on for years.

The Government’s response in August will be interesting. Also interesting will be Labour’s response. Phil Goff has, to his credit, been supportive. However I hear one of his senior colleagues has been around the gallery trying to whip up reaction against the report. I wonder if Goff knows of this?

The foreshore and seabed review panel has reported back. The report is 163 pages.

I blogged in March that I thought the appointment of the panel would lead to a recommendation the law be toasted, and I was right.

They make the point that the Government should have appealed the case to the Privy Council – something I have always said. Clark and Wilson ruled that out and decided to legislate (after just four days!) because they didn’t like the politics of appealing to a court they had said they would abolish.

They recommend the Act be repealed, and offer four options for consideration:

1. Do nothing further – leave the Court of Appeal decision intact and allow claims to be made to the Maori Land Court.  This option is not favoured.
2. Have a staged settlement with negotiations between Hapu/Iwi and the Crown – basically add this to the historic grievances to be settled. They say if this happens, there needs to be provision for public input to safeguard rights of access etc.
3. A national settlement along the lines of the fisheries and aquaculture settlements.
4. A mixed model that combines a number of discrete components: a national settlement, allocation of rights and interests, local co-management, and an ability to gain more specific access and use rights. This is preferred.

I’ve only skimmed the report but they seem to have gone to great lengths to stress that any settlement must guarantee access for all.

There are probably some considerable fish-hooks ahead, but at first glance the panel looks to have come up with a workable way forward. Legislating to remove property rights should be a last resort, not a first resort – as it was for Labour.

Chris Trotter repeats one of the great myths of the Labour left as he makes excuses for Labour legislating away the rights of Maori to go to court:

But, of course, your enemy’s enemy can just as easily be your enemy too – and in the case of the foreshore and seabed debacle this was especially true. Labour’s erstwhile deputy-leader, Michael Cullen, was telling no more than the truth when he pointed out that his government had no room to manoeuvre over the Foreshore & Seabed Bill.

From the moment the Court of Appeal’s decision was announced, Labour’s pollsters began to register a rising level of anti-Maori feeling in the Pakeha population. Clearly, it would require a strong, bi-partisan effort to withstand such political pressure. Of course, National’s pollsters were picking up the same racist vibes as Labour, but, rather than stand against them, the strategists surrounding National’s new leader, Don Brash, opted to exploit them.

The Orewa Speech delivered by Brash in January 2004, and the extraordinary shift in political allegiance from Labour to National that it accomplished, destroyed any hope of a bi-partisan approach to resolving the issues raised by the Court of Appeal.

I’ve seen Labour push this version of events often, and am disappointed that Chris has fallen for it. Quite simply it is a lie, and the dates prove it.

1. Thursday 19 June 2003 – Court of Appeal announces decision
2. Monday 23 June 2003 – Clark and Wilson announce they will legislate to prevent any applications for title

Yes Labour announced the legislation just four days (or two working days) after the court of appeal decision. I’m sick of the fucking lies about Labour backing down under a nasty Don Brash led campaign that finally forced Labour to legislate.

Labour announced legislation as their first reaction – not their last. They panicked – totally. Thursday they hear the decision, and within 24 – 48 hours they would have resolved to recommend to Cabinet they legislate.

Even more stupid is the attempts of the left to portray Labour’s decision as being linked to Brash’s leadership and his Orewa speech. The dates for those are:

1. Brash becomes Leader on 28 October 2003 – 127 days after Labour announced they would legislate.
2. Brash’s Orewa speech was on 27 January 2004 – 218 days after Labour announced they would legislate.

It is good that Labour has said it was wrong to legislate to remove the ability of Iwi to seek title in court for parts of the Foreshore & Seabed. Access to the courts should not be removed at whim by a panicked Government.

It is bad that once again they try to rewrite history about why they did so. Here is what Dr Cullen says:

“Labour believed at the time of the Ngati Apa decision that it would have been unacceptable not to respond to the Court of Appeal ruling in a definitive way. The finding created widespread uncertainty that a responsible Government needed to address.

“We responded with the best solution possible at the time. But I have always regretted the fact that National and other parties refused to enter into proper discussions on this issue, so that a broad political consensus – as has been established with the Treaty settlement process – could be reached.

Labour made their key decision before there was any attempt to get consensus. Within just a few days of the Court of Appeal ruling, Clark and Wilson announced they would legislate to over-turn the decision.

“The matter must be resolved once and for all. Now that National claims to have disavowed its previous ‘Iwi vs Kiwi’ stance and a review has been established, the potential for that broad consensus to be reached appears possible.

Labour are trying to rewrite history to portray their decision to legislate to remove access to the courts, as being the result of National’s Iwi/Kiwi campaign.  Again – the truth is Labour made the key decision to legislate within a few days of the Court decision – which was around two years or more before the Iwi/Kiwi billboard.

The sensible and principled thing to do would have been to appeal the Court of Appeal decision to the Privy Council. Labour did not want to do that as they had announced they wished to abolish such appeals, so rather than follow the law, they unilaterally changed it.

Chris Finlayson has resisted the urge to score cheap points at Labour’s expense (a lesson they could learn) and is reported as saying:

Treaty Negotiations Minister Chris Finlayson last night welcomed Labour’s move.

“I agree completely with Dr Cullen’s sentiment that the review of the Foreshore and Seabed Act needs to be approached in a non-partisan way, and that the issue should not be used as a political football.

“I welcome his assurance that the Labour Party will engage constructively with the review. Our goal is to reach the best possible outcome for Maori and all the people of New Zealand, and it is important that the voices of all parties in Parliament are heard.”

Of course the details of what the review panel proposes will be crucial.

I’ll start with Colin’s conclusion:

Key might think that we’ve entered a new age of multiracial harmony, and I’d like to think so too. But I’ll say this: National underestimates the depth of public feeling about ownership of the foreshore and seabed at its peril. If Key thinks that the public will be placated simply by being guaranteed access – and no longer having the beaches in public ownership – then I think he is, for the first time in his premiership so far, completely and utterly wrong.

First of all there is a difference between beaches and the foreshore. The foreshore is that part between low and high tide. Beaches tend to be the stuff above high tide.

Colin agrees with me that the outcome doesn’t look hard to guess:

Let’s be clear: the review of the act announced today is a jack-up. It has only one possible conclusion – repeal the Act. Why do I say that? Well, the panellists on the review are all sympathetic, to say the least, to the Maori Party’s cause: Judge Eddie Durie, a former chairman of the Waitangi Tribunal, which has slated the Foreshore and Seabed Act; Richard Boast, an academic specialising in Maori land alienation; and Hana O’Regan, daughter of Tipene O’Regan, a Treaty lawyer.

I think jack up is a harsh word, but make no mistake this is a panel that would regard the current law as the least favoured options. They still have to do the hard work of devising a more acceptable option.

There are a number of options that I can think of, if the law is repealed. First of all, it is worth remembering that the Court of Appeal set a high threshold for any claim to title. Something along the lines of continous customary use.  But what are the options for a Government if title was granted:

1. Do nothing – it is for an area that the public never use anyway
2. Offer to buy the title
3. Negotiate an access agreement
4. Offer a deal – title is exchanged in return for say some Landcorp land.

Now there are pros and cons of all those, and it isn’t quite that simple. But the point is there are several options that can be explored in good faith.

I await the work of the panel with interest.

I am also fascinated by how Labour will handle this. If Goff campaigns against any repeal, then they may lose significant Maori support – and any hope of getting some seats back. But equally it is a nightmare if John Key and Pita Sharples pull off a deal that works – that would just make Labour look so bad for not even trying to reach a deal before kneejerk announcing they will legislate.

Attorney-General Chris Finlayson has announced the members of the panel to review the Foreshore & Seabed Act. They are:

• former High Court judge and Waitangi Tribunal chair Justice Edward Taihakurei Durie
• barrister Richard Boast, an Associate Professor at Victoria University specialising in property law and Maori legal issues
• Hana O’Regan, an educationalist specialising in Maori culture and identity

The panel’s job TOR is to determine:

a) What were the nature and extent of the mana whenua and public interests in the coastal marine area prior to Attorney-General v Ngati Apa [2003] 3 NZLR 643

b) What options were available to the government to respond to the Court of Appeal decision in Attorney-General v Ngati Apa [2003] 3 NZLR 643

c) Whether the Foreshore and Seabed Act 2004 effectively recognises and provides for customary or aboriginal title and public interests (including Maori, local government and business) in the coastal marine area and maintains and allows for the enhancement of mana whenua

d) If the Panel has reservations that the Foreshore and Seabed Act does not provide for the above, outline options on what could be the most workable and efficient methods by which both customary and public interests in the coastal marine area could be recognised and provided for; and in particular,
how processes of recognising and providing for such interests could be streamlined

Now without in any way suggesting the three panelists will pre-judge the issue, and not do a thorough job, I would be amazed if a panel including Judge Durie and Hana O’Regan came back at the end of the day and said “Yes we agree the best thing for the Government to have done was to legislate away the rights of Maori to test claims to title in court”.  That is highly unlikely.

The panel is to report by 30 June 2009, and the Government has said they will make decisions by the 31 December 2009.

I will not be surprised if we see a Foreshore & Seabed Repeal Act in 2010, and a very happy Maori Party.

Of course agreeing to repeal it is the easy part. What you replace it with, is considerably harder.

Idiot/Savant looks at what would happen if the Foreshore and Seabed Act was repealed. I tend to favour repeal of the Act, but also would like the Court of Appeal ruling to have been tested by appeal to the Privy Council or the Supreme Court. Maybe one can repeal the Act, legislate to allow the Supreme Court to hear an appeal from the Court of Appeal ruling, and then whatever the Supreme Court decides, forms the basis of negotiations between Crown and Iwi.

Adam Smith at The Inquiring Mind links to an article in The Times on the huge number of subtitling mashups done of the bunker scene from Downfall. Over 150 mashups have been done, including three by Whale Oil. They are Winston’s Downfall, Helen’s Downfall and Judith’s Downfall.

Aaron Bhatnagar blogs on how Waiheke Island and Great Barrier Island residents will be polled on whetehr they want to remain part of Auckland City, or transfer to the Thames-Coromandel District Council. I don’t think many do want to change but as 10% o residents signed a petition, the Local Government Commission is obliged to run a poll.

Paul Walker retires from blogging. A real pity – I enjoy all the economist blogs, even though they are not high traffic. Maybe if they all combined together?

Bryce Edwards has done a series of posts on the party that shall not be named. They are a fascinating background read. One day he should publish them as children’s horror stories

Finally Adam Smith scans in and blogs every day a good Letter to the Editor. Have a look at this one from the Co-vice-president of the Maori Party responding to Chris Trotter.

Agenda hve the transcript up of their interview with Mairo Party MP Hone Harawira. First the good parts:

HONE Oh sure, I mean they have, to assume that they can simply sit there and pass an Electoral Finance Act when the whole world was saying this sucks and in fact it’s come back to bite them on the bum shows how disconnected they were with reality to try and ram through legislation at this late stage in the game is arrogant, it suggests that they are really only – and then to stack all of these quangos with their cronies suggests that they see themselves going out and they’re really just trying to maintain as much power as possible, that’s arrogant, that’s nothing to do with coalition building, and in fact the Labour Party has yet to come out clearly and say these are the sorts of things we’d like to do with the Maori Party.

Harawira is of course right with his analysis.

GUYON What about National then are you comfortable, could you actually work with National?

HONE Another difficult one there, but no more difficult than working with Labour as far as we’re concerned. People have this big fear of National and Maori in terms of oh they’d get rid of the Maori seats wouldn’t they, but my response constantly is always the greatest land theft of my generation has actually been the Foreshore and Seabed and that wasn’t stolen by National that was stolen by Labour, would you expect us to jump into bed with them happily.

That is a very different tune to a few years ago.

But some idea of the challenges ahead:

GUYON Let’s talk about a couple of the things that you said you want to do if you have influence over a government, you wrote recently in the Northland Age that you want to remove GST from food and abolish tax for people earning $25,000 and under, how much would that cost?

HONE Actually Guyon I couldn’t care less how much that costs, what I do know is this.

Guyon says Treasury worked the cost out for them:

GUYON Well we did something that you should have done, we asked Treasury how much this would cost, they said it would cost two billion to remove GST from food and three billion more to cut taxes for those earning less than $25,000. You want free health care for kaumatua and kuia too, where is the money coming from?

I have a figure of $2.4 billion for removing GST from food. The no tax on those earning less than $25,000 could be even more than $3 billion. That is the cost of zero tax for everyone who earns $25K or less. But if you read it as being zero tax on the first $25,000 of income (which you would need to do otherwise someone at $25k pays $0 and someone on $26K pays pays says $5k) then the fiscal cost is arouynd $11.4 billion (according to NZIER calculator).

HONE Well let’s say the tax off cigarettes for the last we’ll say five years, that’s five billion dollars. This isn’t very hard eh, this isn’t rocket science, the government is taking a billion dollars a year off tobacco tax, they could certainly spend it in this area.

Hone is correct that tobacco excise tax is around $1 billion a year. But that tax is already budgeted for.

Even if Hone was suggesting we double the excise tax on tobacco, that would bring in an additional billion a year at most. Probably quite a bit less as the amount of tobacco purchased would decline. But even if it was $1 billion that is not even close to the $5 billion to $13 billion cost of what he wants to do.