Thursday, October 14, 2010

Discrimination on the foreshore

Meanwhile, over on Pundit, Andrew Geddis asks whether ACT's proposed amendment to the Marine and Coastal Area (Takutai Moana) Bill is discriminatory. No. Customary rights aren't freehold title, and its invidious to directly compare the two. What matters is whether the rights accurately reflect those held in 1840. And insofar as they do, and that free public access does not interfere with them, then ACT's amendment isn't discriminatory (though as pointed out in my previous post, it does seem motivated by an underlying racist mindset).

The bill as a whole OTOH is another story. It suffers from the same problem as the original: that no matter how strong a claimant's case, usage-based customary rights are all they can ever get. If an iwi or hapu in practice exercised full ownership over a patch of foreshore and seabed in 1840, the law does not permit that ownership to be recognised. Except if they sold it to Pakeha, where the private property rights of "established" (meaning white) landowners suddenly reign supreme.

That is discriminatory. Its also irrational. Either the property rights exercised in 1840 amounted to freehold title, or they didn't. If they did, then the court should be able to award that title. If they didn't, then the claims of Pakeha landholders to exercise it over the foreshore should be ignored, as the rights they thought they were buying never existed. But the current position - that Māori can never own foreshore, but Pakeha can - is discriminatory and wrong.

As for the solution, obviously I'd like to see the bill amended to permit Māori to receive full freehold title from the courts. And if this does not happen, and a specific case strong enough to support freehold title presents itself, then we will see the law relitigated through the coalition process until the discrimination is removed.