Another meteorite

In 2003, the Court of Appeal delivered a bombshell ruling in Ngati Apa v Attorney-General: the crown had not generally extinguished Maori customary rights over the foreshore and seabed, and ownership of particular areas of the foreshore and seabed was a question of fact to be determined by the Maori Land Court in accordance with the facts and history of the area. The resulting Pakeha outrage at the idea that Maori might still have property rights led to the passage of an unjust raupatu law, the formation of the Maori Party, and its subsequent alliance with National to pass pretty much the same law under a different name.

Now the Supreme Court has delivered a similarly explosive ruling in Paki and Others v Attorney-General (No. 2).

The ruling is the result of a fifteen-year long case over ownership (and compensation for its loss) of a significant stretch of the Waikato River. The Pouakani people used to own it, but by the usual practice of theft through the Maori Land Court and acquisition under the Public Works Act, it was stolen from them. So they went to court, arguing (due to a prior case, Re the Bed of the Wanganui River) that the government at the time hadn't informed them of the conveyancing presumption that the river would be transferred along with its banks, and that it therefore owed them a fiduciary duty over the river. The crown argued that it owned it outright thanks to the Coal-Mines Act Amendment Act 1903 (which asserted crown ownership of the bed of navigable rivers), but in 2012 the Supreme Court ruled that that was not the case. And now they've gone one better, ruling that the crown may not have acquired title at all, and explicitly overturning Re the Bed of the Wanganui River as a general precedent. Instead, they've applied the core principle of Ngati Apa that aboriginal title continues until lawfully extinguished, and that absent a general extinguishment, it needs to be determined according to the facts of local custom and history. In the case of the Pouakani people, it means they may or may not own the riverbed, depending on Maori custom at the time.

There are two things which make this ruling explosive:

• the same principle applies to other significant non-navigable rivers, which could lead to a flood of litigation;
  
• but more importantly: the particular land in question holds three major hydroelectric dams (Arapuni, Maraetai and Whakamaru) operated by Mighty River Power. Mighty River may now owe the Pouakani damages, not to mention rent. Or the land may be resumed under sections 27A - 27D of the State Owned Enterprises Act (which still apply to mixed-ownership model companies)
  

Which means that no doubt we'll soon see Pakeha banging their racist drum about the prospect of Maori "owning the rivers" (even though such ownership has been a feature of several Treaty settlements already) - possibly aided by a partly government-owned company's PR machine (which would surely be a breach of the government's Treaty obligations). I've already seen people arguing that the government will not allow the ruling to stand. Which is going to put the rump Maori Party in a very unpleasant position, and is likely to further aid Internet-Mana. But the big problem here is that legislating over it directly undermines the settlement in New Zealand Maori Council v Attorney-General (1987) (the lands / SOE case). The core promise there was that land (and subsequently, water) subject to Maori claims could be transferred to SOEs, and even privatised, as long as the rights of those potential claimants were protected. The case is the foundation of modern Treaty jurisprudence (it established the idea that the Treaty was a partnership and the crown owed Maori a duty of good faith), and the Supreme Court relied on it just last year to overturn a challenge to the sale of Mighty River Power, on the basis of that protection of rights and "the proven willingness and ability of the Crown to provide such redress". Tearing that up would call every other settlement - and the good faith of the crown - into question. No sane government should want to go there.

Iwi and rivers

Last week, the Supreme Court decided a significant case. Paki and Others v Attorney-General of New Zealand [PDF] was officially about a very tight legal question: whether the Coal-Mines Act Amendment Act 1903 (which asserted crown ownership of the bed of navigable rivers) applied to a particular stretch of the Waikato River. The Supreme Court found by a 4-1 majority that it did not, as navigability had to be assessed as a question of fact according to how it applied to particular stretches of river in 1903.

The court did not find that the Pouakani people owned the bed of that part of the Waikato River (they agreed they did not). It did not find that the crown held the riverbed in trust (which is what the case is actually about). Those questions will be decided by lower courts now that this appeal has been resolved. But like the Ngati Apa decision on the foreshore and seabed, this opens an incredible can of worms, and is likely to lead to other cases. Most obviously, where the crown asserts ownership of a riverbed merely on the basis of navigability rather than purchase, that can be disputed as a question of historical fact, and the original customary ownership restored (if indeed it was ever ousted; both the Supreme Court and Court of Appeal are doubtful about that). As with the foreshore, assumed crown ownership on the basis of English customary law won't stand against aboriginal title.

But the most significant implication is for the government's planned sale of Mighty River Power. Three of Mighty River's dams are built on land covered by the decision - land which may yet be found to be held in trust for the Pouakani people, and other iwi may yet file their own cases. That means at the least that some provision needs to be made for compensation or transfer if the courts uphold the trust, and the sale should not proceed until such provision is made. To do otherwise would be a Treaty breach, of exactly the type that New Zealand Māori Council v. Attorney-General (1987) (and the subsequent amendments to the State-Owned Enterprises Act) was supposed to prevent.

Foreshore and seabed: This isn't over II

Yesterday, I pointed out that the passing of the Marine and Coastal Area (Takutai Moana) Act by Parliament did not mean that the matter was settled, no matter how many times Chris Finlayson stamped his foot and said "over!" In that post, I'd focused on those groups pushing for a better deal for Māori - Hone Harawira, the Iwi leadership Group, and to some extent Labour. But of course there's the racists as well, and they don't seem to be willing to let the matter go either. The redneck Coastal Coalition has announced they will be campaigning for a Citizen's Initiated Referendum on the issue. Meanwhile, Winston Peters is promising repeal and a restoration of crown ownership (i.e. further raupatu). The former will be good for a laugh, and is another reminder (alongside last year's pro child-beating referendum) of the problems with referenda unchecked by protections for fundamental human rights. Winston, OTOH, is more interesting. If he makes it back into Parliament, then it could be a very interesting coalition formation process. And if a multi-party coalition is required, then the result will likely be three years of stasis, keeping the issue live for the next election...

Foreshore and seabed: This isn't over

The Marine and Coastal Area (Takutai Moana) Bill has just passed its third reading, 63 - 56. The bill is an improvement on its predecessor, but only a slight one. While it restores the right to test claims of aboriginal title in the courts, it subjects them to such a high test as to make them virtually impossible. And in the unlikely case that those tests are met, it denies real redress. This is not just; it is not right; and it is not in accordance with our obligations under the Treaty of Waitangi.

The good news is that it will not last. The bill has been rejected by Maori. And this means that it will be relitigated through the courts, Parliament, the UN, and ultimately the electoral system until a just solution is arrived at - just as the original Foreshore and Seabed Act was. Labour has already promised repeal. The Māori Party have made it clear that they will seek amendments when the political balance of power changes. The upshot is that we will be debating this in three years' time, and three years after that, and three years after that, until we get it right.

As for the Māori Party, the Greens' Metiria Turei made it clear: they were the real decision-makers on this bill, with the power to pass it or not. Their votes were the key. People thought that if Māori had the power, they would get a just result. They've been betrayed. And the Māori Party will be judged on that at the ballot box in November.

An ignorant redneck

That's the only way to describe ACT MP Hilary Calvert. Quite apart from her simply strange claim that Maori couldn't have any rights in the foreshore and seabed because no-one could hold their breath for 170 years (yes, really), there's her view of tikanga:

"Tikanga is an 'Alice in Wonderland' word. It means whatever the Queen - I think it was the Red or White Queen - said it would mean, no more and no less."

Under the bill tikanga covered inherited rights and interests, she said.

"So we are to believe that this Alice in Wonderland word, a word that can be defined by the person claiming some property in our coastal land, creates legal rights based entirely on the say-so of the claimant. We might just as well ask iwi for a list of what they want and put through a legal transfer."

In fact, tikanga over land ownership and customary rights is well understood, and has been recognised in New Zealand law in one way or another for almost 150 years (first through the Native Land Court in translating titles, then more recently through the Treaty settlement process). But Calvert and the rest of her party subscribe to the Prendergastian view that Maori were "savages" and "barbarians" with no body of customary law and therefore no system of property rights. Its as ignorant as it is racist - but its absolutely par for the course for ACT.

Hypocritical and racist

The High Court has confirmed Ngati Tama's title over the Wakapuaka estuary near Nelson. National MP Nick Smith is livid, claiming that this shows that the government's promise that Maori would not be able to gain freehold title to the foreshore and seabed was worthless. Except that this case has nothing to do with the Foreshore and Seabed Act, or with the precedent of Ngati Apa v Attorney-General. Ngati Tama's claim of ownership is not based on customary title, but on freehold title awarded in the 1880's and upheld three (now four) times by the courts since then. Some of the original documents have now apparently been lost, but this doesn't mean they don't own it, anymore than the government losing the original survey data would undermine title to your house.

Smith's longstanding refusal to accept to this fact and his repeated attempts to have the title revoked (he has been pushing it since he was Conservation Minister back in 1999) reveal the true attitudes behind National's stance on the foreshore and seabed issue. Rich, white people are allowed to own beaches. Brown people are not. This is not about equality under the law; rather it is about enforced inequality on the basis of race. There's no other way to say it: National's position on the foreshore and seabed is hypocritical and racist.

Recalling Prendergast

In his latest piece of pandering to the redneck vote, Don Brash is promising amendments to the Foreshore and Seabed Act to ensure that "the beaches belong to everyone". One change would be to "remove the jurisdiction of the Maori Land Court to hear claims for the foreshore and seabed". Given that the Maori Land Court is a specialist jurisdiction and claims of aboriginal title are precisely its area of competence, this is tantamount to an admission that the law is not on the government's side. It also displays a rather disturbing view (shared by many on the right) that the High Court would be less sympathetic to Maori claims - which given that the two courts interpret exactly the same law, says something about their views on judicial impartiality. But it's the second part which is the worst bit: removing rangatiratanga (authority) and kaitiakitanga (guardianship) as a basis for a customary rights claim.

To see why this is a Bad Thing, we have to unpack it a little. According to the doctrine of aboriginal title, indigenous peoples have property rights which survive a transfer of sovereignty. Such property rights are determined by whatever law or custom prevails at the time of settlement. In the case of Maori, that basically boils down to occupation and usage - or rangatiratanga and kaitiakitanga. In other words, what Don Brash is saying is that Maori never had property rights.

This is a staggering view, both in its sheer ignorance and implicit racism, and one which is more characteristic of the nineteenth century than the modern era. In fact, what it most recalls is the ruling of Justice Prendergast in Wi Parata v Bishop of Wellington. In that case, Prendergast famously declared the Treaty to be "a simple nullity", as deals with "savages" and "barbarians" were not binding. However, he also argued that Maori could not possibly have property rights, because

[h]ad any body of law or custom, capable of being understood and administered by the Courts of a civilised country, been known to exist, the British Government would surely have provided for its recognition

- a proposition which nowdays would be treated with the scorn it deserves. But Prendergast wasn't serious in his assertion of government infalliability, as his treatment of the Native Rights Act 1865 shows. When faced with an explicit provision recognising "property, whether real or personal, of the Maori people" and "land held under Maori custom and usage", he airily declared that "a phrase in a statute cannot call what is non-existent into being". Maori could not own property, unless it had been granted to them by the crown.

New Zealand has moved on since then, but as with so many other things, Brash seems to remain firmly mired in the past.

Appalling ignorance II

Tristan objects to being called ignorant for "not being fully briefed on the The Kauwaeranga case of 1870". Except that it's not just about the Kauwaeranga case, and his ignorance goes well beyond "not being fully briefed" - I'd call it "total unawareness". And it has consequences - a strong subtext of Tristan's post was that foreshore claims were a scam and that Maori had made the whole thing up. It is only through ignorance of continuous assertions of ownership in numerous cases over a period of 130 years that such beliefs can be maintained.

(This is not to say that claims are justified - it's perfectly possible to regard the case for Maori ownership as weak. Maori have after all lost almost all of those cases. But it is impossible to argue that modern claims are automatically brought in bad faith in light of the historical background).

There's no implication that ignorance disqualifies anyone from having an opinion. However, it may result in that ignorance being corrected, or the opinion not being taken seriously. These are the risks you bear when you venture into the marketplace of ideas...

However, beyond his huffiness over having his ignorance pointed out, Tristan makes a good point as well:

many if not all claims to the foreshore and seabed before our current state were in regards to fishing and collecting shellfish. Now those rights are already safe guarded under the fisheries act. In fact even the case that brought this all to a head was in fact about who could build a mussel farm and where.

Yes - and both the fisheries and aquaculture settlements undoubtably weaken the strength of territorial claims. The most important rights in the bundle have been dealt with, leaving little else to support a claim of exclusive ownership.

An appalling ignorance

Tristan of About Town has some thoughts on the passing of the Foreshore and Seabed Act 2004. However, in pointing out that the Court of Appeal decision in Ngati Apa v Attorney-General did not mean that Maori owned the foreshore, only that there was no law which automatically said that they did not, he says

They came out and said we knew we owned it all along…. That is after being silent for 160 years, and allowing dozens of mariners, ports and boardwalks over land which apparently, they knew they owned.

(My emphasis). He later repeats this claim, saying

Maori never owned it (you would think there would be some kind fuss in the last 160 years if they did)

All I can say is that this shows an appalling ignorance of the history of Maori claims to the foreshore and seabed. No matter what you think of the merits of those claims (which are now almost certainly a dead issue, at least as far as the courts are concerned), it cannot possibly be said that Maori have never raised the issue until last year. The ownership of the foreshore has been contested in the courts by Maori since the 1860's. A 1996 report [PDF] to the Waitangi tribunal by Richard Boast lays out some of the history. According to Boast, the earliest cases date from the 1860's, and at that stage the Native Land Court sometimes granted title to parcels of foreshore. However, following the discovery of gold under mudflats near Thames, the government acted to exclude that area of the foreshore (and that area alone) from the Court's jurisdiction, resulting in an end to cases in the area. This was presented as a deferment, rather than a denial of claims, and the exclusion lapsed in 1873, by which time the Crown had purchased most of the land in contention.

The Kauwaeranga case in 1870 resulted in a different solution. Rather than grant exclusive title to the foreshore, Chief Judge Fenton instead granted an exclusive fishing right, on the basis that that had been the extent of Maori interests. The Native Land Court followed this practice until 1909, when the present "freehold title or nothing" system was instituted.

The early part of the twentieth century saw several cases over the ownership of the Awapuni Lagoon near Gisborne and Te Whanganui-a-Orotu (the inner harbour, later raised in the earthquake) near Napier. The latter case dragged on for thirty years, but was inconclusive. The matter has since been revisited by the Waitangi Tribunal. It also saw the beginning of a protracted series of cases in Northland, which involved direct action as well as appeal to the courts (Whina Cooper was involved in destroying the stop-banks of a farmer trying to reclaim contested mudflats in 1922). The final case in this series was the oft-mentioned In re Ninety Mile Beach (1962), which ended Maori claims for a generation but kept legal academics (including Boast) in papers for forty years arguing over whether it was correctly decided; in Ngati Apa, the Court of Appeal decided that it was not.

An examination of the history shows that Maori have not been silent on the issue of the foreshore; they have, in fact, made "a fuss", asserting their rights by protest, petition, legal and direct action, in the face of continuous denial by the Crown. Why is Tristan unaware of this? I can only speculate that he has never bothered to look. Sadly, that explains the views of far too many on the foreshore and seabed issue...

What is aboriginal title?

Maori claims to the foreshore and seabed rest on the common-law doctrine of "aboriginal title". But what is it?

Put simply, the doctrine of aboriginal or customary title boils down to two points: firstly, that indigenous peoples have some form of property rights, according to their own laws and customs; and secondly, that these property rights are not affected by a transfer or acquisition of sovereignty. The first is a matter of fact at the time an area is acquired. The second is a matter of long-standing precedents in English common law. According to these precedents, local property rights survive until they are relinquished or explicitly extinguished through purchase or statute. The common law also recognises that customary conceptions of property may not map to English conceptions, and therefore recognises lesser usage rights (such as hunting or fishing rights) as well as full ownership.

While the idea that property rights survive a change in sovereignty - that when Britain claimed New Zealand, it did not in fact end up owning it - may seem a little strange, it's common sense really. If New Zealand voluntarily joined Australia, it would not mean that the Australian government would suddenly acquire legal title to your house. The same principle applied to Maori in New Zealand in 1840. The fact that they signed a treaty surrendering sovereignty did not mean that they gave up their property.

In New Zealand, aboriginal title has been recognised since the early days of settlement. Article Two of the Treaty of Waitangi, which guarantees the chiefs continued possession of their "lands and estates forests fisheries and other properties" (or treasures, depending on which version you prefer), is an explicit recognition of existing property rights. The right of pre-emption or exclusive purchase in the same article was used by the Crown to lawfully extinguish Maori customary title and thereby allow alienation. Later, this was replaced by explicit legal mechanisms, such as the Native (now Maori) Land Court.

Aboriginal title has been recognised in New Zealand courts since the 1847 decision of R v Symonds, in which Justice Chapman said:

Whatever may be the opinion of jurists as to the strength or weakness of the Native title, whatsoever may have been the past vague notions of the Natives of this country, whatever may be their present clearer and still growing conception of their own dominion over land, it cannot be too solemnly asserted that it is entitled to be respected, that it cannot be extinguished (at least in times of peace) otherwise than by the free consent of the native occupiers.

(My emphasis).

Unfortunately, this approach was overturned in 1877 with Wi Parata v Bishop of Wellington, which denied that Maori possessed enforceable property rights on the basis that they were "barbarians" with no body of customary law. Despite higher precedent from the Privy Council (in Nireaha Tamaki v Baker (1901) and Wallis v Solicitor-General (1902-3)), Wi Parata held sway in New Zealand for the next century. However, Symonds and aboriginal title have recently been resurrected: Te Weehi v Regional Fisheries Officer (1986) resurrected the concept of usage rights (in this case to fish), while other cases have gradually reaffirmed the idea of customary title amounting to full ownership. The foreshore and seabed case, Ngati Apa v Attorney-General, simply follows in this tradition.