Wednesday, December 07, 2005

"One law for all" - except for Maori

The foreshore and seabed looks to be back on the agenda after a Nelson iwi issued tresspass notices against two boaties for driving on the foreshore at Delaware Bay. Nelson MP Nick Smith has issued a press release claiming that this violates Labour's assurances that "no one would be charged with trespassing for going onto the foreshore because of Maori claims". But there's a problem: this action has nothing to do with Maori claims to the foreshore and seabed under common law. It has nothing to do with the Foreshore and Seabed Act, or with the precedent of Ngati Apa v Attorny-General. The local iwi own the land, and have for 122 years. And they have title documents, issued by the (then-)Native Land Court, to prove it. Nick Smith refuses to recognise that title, and is currently engaged in court action to have it revoked - but until a decision is made, it stands, and the owners enjoy the full rights of any other property owner. Including the right to restrict access.

Rather than being about the foreshore and seabed, then, this case is about the ordinary rights of ordinary property owners. It is exactly the same in principle as rich white property owners on Waiheke keeping the public off their beaches. The only difference is that in this case, the owners are brown. That should not make a difference to either how they are treated by law, or our expectations of what they are allowed to do with their property. If Nick Smith is allowed to keep people out of his backyard, or refuse access to 4WDs and horses because they might damage it, so are the Huria Matenga Wakapuaka Trust.

Nick Smith and the National Party campaigned on a platform of "one law for all". But from the above, it's clear that Smith does not take this slogan seriously. Instead, it's "one law for all" - except when it benefits Maori. And this is not just inconsistent - it is racist.


I have no knowledge of New Zealand land law, but to the extent it is based on English law would not the iwi be able to claim possessory title if their court ordered title was invalidated?

Posted by Anonymous : 12/07/2005 11:59:00 PM

As in the doctrine of aboriginal title?

That's what the Native Land Court was established to recognise and normalise. Their current title is based on the facts on the ground, as investigated by the NLC, in 1883. it has since been confirmed twice in court, in 1988 and 1998. Unfortunately, some people don't seem to think that counts.

Posted by Idiot/Savant : 12/08/2005 12:26:00 AM

How can they own foreshore?

I thought we were pretty clear that you can't own foreshore you can only have customary rights to it (under current law - which is what the police should enforce). And that all people should have acess to that foreshore (although the public impresion could be diferent from the law - but if htat is the case we still have a problem).

The fact that white people and companies might be doing the same thing is irrelevant except in as far as they should just comply with the rules also.rrazyuwz

Posted by Genius : 12/08/2005 06:25:00 AM

As a Waiheke Islander I want to comment on the remark that "It is exactly the same in principle as rich white property owners on Waiheke keeping the public off their beaches."
No coastal land owners on Waiheke own their beach too, only the access to it. The beaches themselves are free to be used by locals, you just need a legal way to get there, and you can, usually by boat. The issue of access is contentious but under current law they are entitled to close off access to the beach adjoining their property. Which is a different issue from actual beach ownership.

Posted by Hans Versluys : 12/08/2005 09:36:00 AM

"I thought we were pretty clear that you can't own foreshore you can only have customary rights to it."

Um no, that's one of the things that prompted the Foreshore and Seabed bill. Many New Zealanders had believed (or like you, still do) that the Queen's Chain was real and more or less unbroken. But it's not. Some NZ landowners, including these people, have title all the way down to the sea.

The Queen's Chain is not enshrined in law, it's merely a historical practice in assigning title that hasn't always been adhered to.

Has this whole debate passed you by?

Posted by stephen : 12/08/2005 09:59:00 AM

I also know nothing about local laws or customs. I do know that on The Christian Prophet blog the Holy Spirit has given messages indicating that property rights are sacred and must be so respected. Eminent domain, for example, is called evil.

Posted by Christian Prophet : 12/08/2005 10:09:00 AM

That last post just shows how idiotic the Christian fundamentalist right is and how important it is to keep religion and state strictly separated.

Posted by Anonymous : 12/08/2005 12:11:00 PM

Uroskin: apologies. But there are property owners - usually rich and white - who do own their beaches and have a legal right to exclude people. One is just over the estuary from Delaware Bay, in fact. And I don't see the National Party making any sort of fuss about that - in fact, those are exactly the sort of private property rights they would die in a ditch (politically speaking) to defend.

(I think beach access is a legitimate issue - but any rules must be applied consistently and irrespective of race. One of the clear evils of the Foreshore and Seabed Act was that it disposessed Maori of their (potentially valid) claims, while leaving the rights of the aforementioned usually rich, usually white people who already owned their beaches completely intact. Which is one part of it that National fully supported. Again, this smacks of racism).

Posted by Idiot/Savant : 12/08/2005 12:43:00 PM

Genius: the Foreshore and Seabed Act left existing titles intact. The Huria Matenga Wakapuaka Trust's title to their beach and estuary was thus entirely unaffected.

Posted by Idiot/Savant : 12/08/2005 12:44:00 PM

> Some NZ landowners, including these people, have title all the way down to the sea.

Well as I said that is a problem in itself.
The phrasing of the law in parts seems to suggest it just reflects protection of the public sections of the foreshore but in other parts suggests the intent is to protect the foreshore in it's entirity.

It makes litle sense to say

"That decision recognised the possibility that Te Ture Whenua Maori Act 1993 would lead to private ownership of the foreshore and seabed"

and not want public ownership of private foreshore. the law basically states that the very idea of private ownership is justification for legislation.

the technical question I guess is were the maori ownership "registered under the Land Transfer Act 1952" if not they have nothing and their title was revoked with the law if so they still own it and the national spokesman is talking through a hole in his head.

This was presumably a technical way of avoiding too much resistance from people who own land (at the same time as maori who want to claim land). Otherwise since anything else goes against the purpose of the legislation anyway it is as stupid as excluding any other piece of land from the legislation.

> And I don't see the National Party making any sort of fuss about that.

They are exactly the ones YOU should be making a fuss about.

Posted by Genius : 12/08/2005 09:52:00 PM