Friday, April 08, 2005



An interesting question

An interesting question arises from Don Brash's denial that Maori possessed property rights - namely, how that denial can be reconciled with his past support for the Treaty settlements process. In his infamous Orewa speech, Dr Brash declared that

Where there has been a clear breach of the Treaty - where land has been stolen, for example - then it is right that attempts to make amends should be made

and

Let me make it quite clear. National is absolutely committed to completing the settlement of historical grievances. We will ensure that the process is accelerated and brought to a conclusion

These are admirable sentiments - but strikingly at odds with the view he expressed today. Implicit in the idea of the stealing of land being "a clear breach of the treaty" is a recognition of ownership. But Brash has effectively denied that Maori owned anything. Which is it? Dr Brash owes us an explanation - which of these two incompatible positions he really believes, or, if he believes they can be reconciled, exactly how the rangatiratanga and kaitiakitanga exercised over (say) some forested hills can lead to ownership, while that exercised over the foreshore cannot.

20 comments:

Which is it? Whichever one gets him the most votes of course.

Posted by Anonymous : 4/08/2005 11:19:00 AM

> how that denial can be reconciled

pretty simple its the same logic that says the maori (or the english) dont own the water. And the americans dont own the moon. Sure each of them may have discovered various bits of it but it is unownable. Surely you must accept some things are unownable and as soon as you do that then naming hte foreshore asone of those things no longer creates any problem (unless you have some reason why the foreshore must be ownable).

Posted by Genius : 4/08/2005 12:56:00 PM

I surf. I've been kicked off the foreshore 3 times in 2 separate locations. Each time by Maori, two times weilding a shotgun, one time demanding money.

Peter Sharples stated categorically on a National Radio Programme interview that given the opportunity as guardians, Maori will deny access to the foreshore in certain instances.

Is this fair?

Posted by MERC : 4/08/2005 01:41:00 PM

Genius: there is indeed a consistent position there - but Don Brash isn't in it. He accepts that foreshore is ownable, and the National Party has categorically stated that they will protect the titles of present owners. Though given their attitude towards the Nelson iwi who do have fee simple to their patch of foreshore, that might have a caveat of "provided they are white".

I would be quite happy if the beaches were held in trust by the state for all New Zealanders. But because we allow them to be owned, we cannot deny some ownership on the basis of the colour of their skin.

Posted by Idiot/Savant : 4/08/2005 01:58:00 PM

Merc: Jesus. Have you talked to the police about the shotgun incidents? I'm sure they'd be interested to hear about people threatening people with guns on public land...

Posted by Idiot/Savant : 4/08/2005 04:18:00 PM

No, I cut my own way. It really didn't bother me, I cite these as examples of denial of access by Maori. Maybe they had a point, I seem to remember a pakeha fella on Waiheke not wanting to give access to his bit of coast, he was rich and used bulldozers.

I would rather rely on the Crown to sort the bigger picture out, as for shotguns, well, this country is the way it is due to shotguns...

Posted by MERC : 4/08/2005 05:05:00 PM

> I would be quite happy if the beaches were held in trust by the state for all New Zealanders.

Doesnt the current law put the foreshore in the hands of the state? (and allow customary title) I Dont remember anyone saying the foreshore will be controled by the state, except those bits currently owned by rich people. If thats the case then People should jsut make that argument not the "brash is racist" one. It should easily get a majority of NZders in favour of it.

Posted by Genius : 4/08/2005 09:32:00 PM

Merc: When did these incidents occur? Where exactly did they occur? Who was involved? What were you doing at the time? What justification was there? and did these incidents occur on the seabed or foreshore or on land? If you can't answer these questions we will have to draw our own conclusions.


Genius: Of course people own the water, etc. The government claims to own the forehore and seabed so it can lease it out for mining, farming etc. and gain revenue. Without the Aquaculture Bill the confiscation may not have taken place.

Don Brash says "attempts" to make amends should be made. Not actual amends. This is a perculiar Pakeha sentiment that lip service alone will cure the ills. Like a burglar standing there with your TV and insisting that it is his and you can't have it back but he will offer to apologise for stealing it. What fool would ever put up with that state of affairs?

Posted by t selwyn : 4/10/2005 02:22:00 AM

Genius: the current foreshore does indeed put most of the foreshore in the hands of the state. The problem is that it leaves the rights of present owners intact.

If we're going to say "people can't own the beaches", then it means that people can't own the beaches, regardless of how rich they are. But if we permit any ownership at all, then denying it to Maori simply smacks of racism.

Posted by Idiot/Savant : 4/10/2005 09:32:00 AM

T Selwyn. Of course you can draw your own conclusions, seems like you already have.

I was entering the beach to go surfing. I always ask for permission if it is sign posted as private property, even if it's not, if I'm unsure. Respect to locals is a surfer credo.

One time was at Raglan. The guy raced up on me and actually threatened to kill me...I was 12 at the time and alone walking over the rocks to Indicators.

The others were at Newdicks beach and welding a shotgun, money was demanded. I was 16 or so at the time and I was driving on public land to the shore.

And in the case of Newdicks, I am actually born of the area, but hey, who cares, not me. I choose not to claim by birthright. It is actions that speak to me, not blood.

I didn't worry about the incidents. I have surfed all over the world, it's the ocean that I love. If you've got an issue over the land, take it to the Land Court. Raglan golf course was given back and Mount Maunganui (my birthplace) too. I'm happy if you're happy, you know? But use the Law, you seem good at asking questions, ask them of the Government. Poking at me isn't going to go anywhere

Otherwise Kiwi's are just going to be at each others throats for ever until someone else comes along and takes the land away from us while we carp at each other.

Kia kaha.

Posted by merc : 4/10/2005 03:49:00 PM

T/S

> Genius: Of course people own the water, etc.

you mean the government? thats a whole different affair.

> The government claims to own the forehore and seabed so it can lease it out for mining, farming etc. and gain revenue.

In what odd world would anyone have a problem with that? Resenting your own government for making rational choices in regard to its own assets is just stupid.

> This is a perculiar Pakeha sentiment that lip service alone will cure the ills.

Sounds racist to me.
It is part of a funny thing I noticed when talking to a friend. We were talking about the unacceptability of dating white people and I was told it was because they were racist... hmmm anyone see a problem with that line of logic?

I/S,

> Genius: the current foreshore does indeed put most of the foreshore in the hands of the state. The problem is that it leaves the rights of present owners intact.

Well it should be fixed. The interesting thing as I said is that I think the majority of NZders would agree with you on this. But instead you seem to be arguing for the other position even though as far as i can tell THIS is the one that is both widely supported and the one you philosophically agree with...

Why is it that people do that sort of thing?

Posted by Genius : 4/10/2005 04:11:00 PM

Merc: Thanks for the info. It all sounds pretty heavy to go threatening kids with guns. Where is Newdicks? - I can't find it on my map. Maybe too close to a crop or something? I have been told that Dover Samuels (the kupapa who voted for the confiscation) is the first to go charging up to people with shot guns if they try to get to the beach through his property in Matauri Bay. What a hypocrite (assuming it's true). The problem is that "taking it to the Land Court" is often not an option, and in the case of sebed and foreshore is now barred, thus the resentment etc. Waving guns at kids however isn't going to solve anything (I take it for granted you weren't damaging anything or annoying anyone apart from the lone ranger).

Genius: "Resenting your own government for making rational choices in regard to its own assets is just stupid." - It's not all the government's property in the first place. It is an arbitrary confiscation. Like declaring that everything over 1000m is a mountain and is therefore the government's, or that everywhere that is sometimes covered in water like a swamp, lake or creek is now the government's. The government's "rational choices" are to give to Pakeha what is Maori. Is that fair for Maori? Can it be rational to be unjust? - Yes if it is a democracy and majority rules. It doesn't make it right, or even sustainable.

Take the High Country pastoral lease "freehold conversion" policy. Pakeha farmers are to be freeholded 7% of the South Island in exchange for surrendering all the useless and uneconomic parts of their leases to DoC. They will reap a huge windfall profit out of this privatisation of the Crown estate. No-one says anything. Imagine if Maori farmers were to freehold 7% of the South Island. We would never hear the bloody end of it from the red necks and the government would halt it because it was "rational" not to lose the red neck vote.

Extrapolating from that policy and the history of our governments the people who get leases over seabed and foreshore just have to sit tight for a few years until there is a National government (although Labour is almost transformed itself into them already) and then the leasees with their ultra-long or perpetual leases will be freeholded in the same way - surrender the uneconomic bits of their mussel farm to DoC as a marine reserve and they can freehold the balance. How can it be that Maori cannot own it but everyone else can apply to the government to lease it? That was the genisis of the Ngati Apa case.

I urge you to read some of the info surrounding these issues. It is just so blatantly racist - the Attorney-General (Margret Wilson)'s own report to cabinet took 10,000 words to say that it WAS discrimination BUT it had to be "clarified" (not clarified in a non-discriminatory way of course because the whole purpose was to confiscate Maori property as if it were a Victorian colonial government at war with the natives). Why do you think the UN condemned it?

As for the racism comment: It is true, is it not, that a person arguing that tokenism and not fixing the problems of the past and trying to get away with lip service to injustice to Maori is almost always a Pakeha. Sad reality, yes - racism? Eye of the beholder territory.

Posted by t selwyn : 4/10/2005 05:43:00 PM

Newdicks is at Maketu. I know the history and I respect it. No, in order to do my passion and travel peacefully I have not the luxury of being anything other than respectful. The old fella at Newdicks was demanding money for the upkeep of the road, the shotgun was symbolic I'm guessing. I wasn't afraid or intimidated in either case, I think we know deep in our hearts in NZ that Maori are fervent for the land and it's not about greed. Now, a greedy man with a shotgun, I would avoid, LOL.

I did not cite these instances with judgement, I just wanted to point out that access denial is a very Kiwi thing. My great grandfather, my grandfathers, they could not abide by the No Trespassing signs.

Times have changed. The ARC put forward a proposal to charge admission to Maori Bay. Ownership and use need to be clarified, you are right.

What this Government have done with the F&S is confiscation and undermines our Courts. Ideally there would be a partnership between Maori and Crown as to the guardianship issue.

Having been in and around the sea in NZ for 41 years, I can tell you the Crown has NO IDEA when it comes to preserving, protecting and maintaining our F&S for future generations.

Maori must be part of the F&S if only because they know it's preservation better. Really. If necessary I can recite concrete evidence.

Posted by merc : 4/10/2005 06:25:00 PM

> "It's not all the government's property in the first place."

the government doesn't "own" the income you earn but it still arbitrarily confiscates a portion of it ("unfair" on the rich). I see no problem as long as it does so with the greater good / the will of the people, in mind.

> It is an arbitrary confiscation.

Laws are arbitrary - except in as far as they are supported by the will of the people.

> The government's "rational choices" are to give to Pakeha what is Maori.

I can just imagine a bunch of old white men running around complaining about how they constantly have their money stolen by the government to give it to young polynesian females (oh wait they sort of do do that.. oh well stupid anyway).
Anyway the smart people which is the majority dont look at such things as race issues.
You win some you loose some. It is the conceptualization of it as a race based issue (by either side) that is the problem.

> Is that fair for Maori?

I think this is rather like "is it fair on people with the name 'john'?". (I think philosophy ectera made a similar example on this issue)

> Pakeha farmers are to be freeholded 7% of the South Island

Are you telling me the law says "if you are white and a farmer you can get a chunk of this 7% of the land? If you are not white and not a farmer you can kiss my proverbial" If so - lest get out there and protest!! Frankly I dont really want to give them much at all (particularly now that I know the legislation specifically excludes maori people!) but no one has organized any protests about it or given me much information. It only seems to be being used as suporting evidence for other things.

You see you like I/S seem to be atacking it from the wrong angle jsut because one person does somthing that seems unfair (which doesnt get headlines) doesnt mean we should change the law to make that the "fair thing"
What we should do is protest the first problem!!!

It is surprising how many times people say somthign basically the same as "person X is evil, you didnt stop him, so why cant I be evil !" and for some odd reason expect that that argument holds any more water than a sieve.

> How can it be that Maori cannot own it but everyone else can apply to the government to lease it?

Maori are not allowed to lease land? is that another part of the law? "brown people cannot lease any land" hmm I dont remember reading that but again lets get out on the street and protest it!

I suggest we all register as europeans now that they have these laws in place.

Posted by Genius : 4/10/2005 06:50:00 PM

Genius: You are far too concerned about what you think the majority think and not about what is right, good, just or fair. If you think that majority = right then the simplicity of that argument is very limiting in terms of debate. But consider this: If a majority of Maori on the Eastern Bay of Plenty and East coast areas abutting the foreshore think they own it does that mean they do? Or are you aggregating your majority to people who are outside of the relevant area? There are many difficulties in these lines of arguments.

And because I know that you have researched the Ngati Apa case I am puzzled why you say "Maori are not allowed to lease land? is that another part of the law? "brown people cannot lease any land" hmm I dont remember reading that but again lets get out on the street and protest it!"

The Malborough District Council (run by a Pom) refused to grant leases to Ngati Apa, but Pakeha who used the exact same forms and submissions etc. were granted leases. The Act Party, no less, is the source of that information on the foreshore and seabed committee findings. It is clear cut discrimination, and I am glad that you will be on the next hikoi. The problem is that most state institutions are in reality Pakeha institutions with all the problems that that causes for Maori.

The South Island freehold conversions: You know what I mean. The old US "Jim Crow" laws are a good example of what we are discussing here. You don't have to state that Black people can't vote (and thus be accused of racism) you just say that people whose parents or grandparents couldn't vote can't vote either. You don't even have to say "were slaves" you just say "were ineligible to vote." Same thing with South Africa and apartheid: you don't have to ban blacks from voting you just make them all citizens of a notional "homeland" and not of the Republic of South Africa. Thus the Foreshore and Seabed Act conforms every property owner's rights except Maori.

Law is carried out and enacted by imperfect people with conflicting interests, histories etc. Quite apart from standing up to defend the victims of human law is it too much to ask that you at least acknowledge that injustice has taken place?

Posted by t selwyn : 4/10/2005 08:36:00 PM

Genius: again, it is because we accept private ownership, and people don't seem to have a problem with it. I see no mass protests demanding that privately-owned foreshore be compulsorily acquired or that the present owners be stripped of their rights in the courts. Instead, debate on this issue is firmly focused on Maori.

I care about consistency and fairness. I dislike it intensely when people are forbidden access to the courts essentially because their case is too strong. And as I said above, if we accept any private ownership, then we can't deny it to some on racial grounds.

But partly though, it is also because so much bullshit is being spread about Maori claims.
The current shitstorm has been sparked by a claim for customary rights of 50km of coast. The way the rednecks are talking, you'd think the local Iwi were claiming ownership, the right to set up tollgates and charge everyone who wants to go for a swim. But they're not - they're claiming the right to gather shells, and to bathe ceremonially in the ocean. How the fuck is this a threat to anyone? And how is this different from how anybody else uses the beach?

There's an extraordinary amount of fear and ignorance out there. And too many political parties are pandering to it.

Posted by Idiot/Savant : 4/10/2005 10:13:00 PM

Merc: the tragedy of the foreshore & seabed is that if the government had acted in good faith and resisted the urge to pander to rednecks, we would probably have come out with an arrangement very similar to what we have - property limited to customary rights and comanagement, with aquaculture as a quid pro quo - consensually and without so much bitterness.

But of course, there wouldn't have been any votes in that.

Posted by Idiot/Savant : 4/10/2005 10:16:00 PM

I/S: "they're claiming the right to gather shells, and to bathe ceremonially in the ocean." - No, it is actually more than that. That is the patronising Pakeha conception of it and consequently the notions behind the wording in the Act. But the judges will rule on all the details.

I had a chat with the kaumatua who is leading that claim who intends to push it as far as it will go. They are very angry down there about the Act. Full guardianship is implicitly - though not exactly - ruled out by the Act but the hope is it can be reconstituted to as close as they can get. Not everyone in the rohe support him however as mandating is unweildly with six hapu, personalities, politics, and overlapping claims with Ngati Awa in Ohope beach and probably Tuhoe in Ohiwa Harbour. There are the usual issues down there about vehicle access, litter, poaching, development etc. but relations seem pretty good between Whakatohea and local Pakeha (half and half population-wise). After Don Brash visited - who knows? The only way those sorts of politicians can win is to breed distrust and antagonism. I hope he failed.

The recent history of Whakatohea is one of heavy land confiscation after invasion in September 1865 where the first Whakatohea recorded killed was an old man who met the invasion force of 500 on the beach with a prolonged tirade of abuse - during which he was shot.
(nominally the invasion force was sent to arrest someone for the hanging of a missionary and resisting arrest would be one of the official reasons that the land was confiscated). So a lot has happened on that particular piece of foreshore.

The issue is this IMO not being acquanted with the details but of the overall concepts: will a judge accept that a "customary right" which is a "physical activity" can be construed as the active role of guardianship responsibilities such as monitoring, surviellence, patrolling, inspection, works, fixture maintenance and construction etc. All of which have been intergral to Maori rights before 1840 and after, but have been swamped and made very difficult to excercise by the central and local governments over the years. These activities do not exclude people from access or most reasonable recreational activities however.

The Opape boatramp at the end of Waiotahi beach is open almost all the time to everyone for free even though it is on tribal land - the council co-manages these things by providing the gate. There is active co-operation - much of which is a physical activity like signage and gate erection, even meetings might be. I would say the components are "physical" in nature and are customary. I think there is a case. On appeal however... who knows.

Posted by t selwyn : 4/11/2005 02:55:00 AM

Bad coastal management 1.

http://www.nzherald.co.nz/index.cfm?c_id=1&ObjectID=10119747

Posted by MERC : 4/11/2005 09:08:00 AM

Bad coastal management 2.
http://www.stuff.co.nz/stuff/0,2106,3253648a10,00.html

Posted by MERC : 4/19/2005 03:38:00 PM