Raupatu

That is the only way to describe last night's passage of the Marine and Coastal Area (Takutai Moana) (Customary Marine Title) Amendment Bill. Drafted in a response to a Māori court victory over the foreshore and seabed, the bill changes the rules, making successful claims all but impossible, and forces already determined cases to be reheard under the new test. It is simply a confiscation. it is a violation of te Tiriti o Waitangi, the ultimate law of this land. It is immoral and it is wrong.

Like all raupatu, it must also be reversed. To their credit, the opposition are making the right noises about this, and you would hope that they will make it (and the reversal of National's other odious, Tiriti-violating legislation on Māori wards, section 7AA, the elimination of Treaty clauses, and the "de-Māorification" of the health and education systems) a high priority. Of course, mere reversal will not be enough: any cases reheard under National's racist new rules will need to be reheard under the proper ones. But that waste of judicial resources is squarely on the present regime, who apparently could not tolerate Māori winning in court even once.

Meanwhile, in another test of how racist the colonial parliament is, Speaker Gerry Brownlee is again threatening Te Pāti Māori for burning a copy of his regime's racist bill on Parliament steps. Which is interesting, because when Rimmer drove a land-rover up those same steps, Brownlee said he could do nothing. It simply was not a violation of Parliament's rules. Those rules have not been changed, so either Brownlee is going to have to invent some in order to punish his enemies in a nakedly arbitrary and racist way, or he will have to admit that what goes for the white supremacist also applies to Māori representatives.

Sadly, the former path can't be ruled out under this Speaker. But if Brownlee wants to set fire to Parliament's legitimacy and social licence, then I guess he can. And all future governments will pay the price for that.

Foreshore and seabed 3.0?

Back in 2003, in Ngati Apa v Attorney-General, the Supreme Court recognised that the settler government had not actually stolen all the beaches, and that (depending on the specific history of specific areas) some of them still might belong to iwi and hapu.

Naturally, the government went apeshit, passing a law to confiscate any remaining Māori property, with consequences we are still living with today.

Fast forward 22 years, and, in a case about rights over a specific part of the foreshore, the Supreme Court has recognised that the settler government hasn't actually stolen all the riverbeds either. The law the government relied upon to claim that it had - section 261 of the Coal Mines Act 1979 - didn't mean what they claimed it did, and in fact had essentially the same wording as the law the government relied upon to claim it had stolen the foreshore and seabed (section 7 of the Territorial Sea, Contiguous Zone, and Exclusive Economic Zone Act 1977). The interpretation of that sort of law as not expropriating existing customary rights was settled by Ngati Apa, and it applies to purported expropriations of riverbeds just as it did to the foreshore and seabed.

Of course, whether any particular iwi or hapu still owns any particular riverbed is a matter of fact. But the government can no longer simply deny it as a question of law. I wonder how long it will be before they go apeshit and use it to open another front in their racist hate campaign against Māori? And will ACT, who back in 2003 claimed to be the "party of property rights" and opposed retrospective expropriation, support or oppose a racist law change?

"An illegitimate exercise of kāwanatanga"

That was the Waitangi Tribunal's assessment of the National regime's plans to gut the Marine and Coastal Area Act and steal the foreshore and seabed for its greedy fishing-industry donors. It found that the regime had violated te Tiriti of Waitangi by failing to consult iwi and hapu, and failed to identify any actual policy problem requiring the changes, and warned that continuing would "significantly endanger the Māori–Crown relationship".

So of course racist National are doing it anyway:

The government is forging ahead with plans to change the law governing New Zealand's foreshore and seabed, despite a Supreme Court ruling last year that appeared to undercut the rationale for the change.

The proposed legislation stems from a clause in National's coalition deal with NZ First, which promised to revisit the Marine and Coastal Area (Takutai Moana) Act.

That commitment was driven by fears that a 2023 Court of Appeal decision could have made it significantly easier for Māori groups to win recognition of customary rights over parts of the coastline.

[...]

On Tuesday, Goldsmith confirmed to RNZ that Cabinet had agreed to press ahead with the law change regardless and to pass it before October.

Let's be clear: the underlying motive here is racism, pure and simple. Māori were having their rights over the foreshore upheld by the courts, and the white supremacist government did not like that. Neither did their donors and cronies in the aquaculture and commercial fishing industries, who did not want to pay iwi and hapu rent for the coastal space they want to use, or face an iwi veto over that use (because apparently property owners shouldn't get to decide what happens on their property if they're brown). So, they're overturning the law, and forcing the courts to revisit and overturn their decisions (rather than letting settled decisions stand as usual).

I do not expect Māori to take this lying down. We've already seen one hikoi which outnumbered the entire NZ police force five to one; I expect there'll be another. And it won't just be Māori. Modern Aotearoa recognises that Te Tiriti is the foundation of our constitution. It gives the government its right to exist. If the regime wants to rip that up, they will effectively be ripping up their own legitimacy and undermining their own foundations. And that seems like a very stupid and dangerous thing to do.

One thing is clear: if we are allowed to have a free and fair election next year - something the regime has also put in doubt - then this government must go. Whatever it does must be reversed by the next, with the courts required to revisit (again) any decisions they have been forced to revisit in the meantime. Racism and corruption cannot be permitted to stand.

The Supreme Court stands up for fairness

National is planning to breach te Tiriti o Waitangi by amending the Marine and Coastal Area Act to effectively make it impossible for the courts to recognise Māori rights over the foreshore and seabed. But its also been playing dirty in other ways. Earlier in the year it announced changes to the funding regime for Marine and Coastal Area Act cases, cutting their funding in an obvious attempt to limit both claims and their success. A side-effect of this change - a total coincidence, I'm sure - was to cut funding for the claimants in the Edwards case (which had made it easier to recognise rights over the foreshore), who were attempting to defend their victory against the government in the Supreme Court. This is obviously an unjust abuse of power to strap the legal chicken - and now the Supreme Court has recognised it as such, issuing a rare prospective costs order against the government:

In a rare decision, heavy with judicial and political implications, the country’s top court has told the Crown it must give advance financial support to a group of hapū challenging it over the Marine and Coastal Areas Act.

[...]

The five-judge panel of the Supreme Court observed the Crown had previously been an interested party in the case.

Now it had become a direct party by appealing the Court of Appeal’s findings on customary marine title, raising the prospect of one party to the argument taking funding away from the other.

“This alteration represents a substantial disadvantage in effect now imposed by one litigant upon another, at the final stage of proceedings,” the Supreme Court found, “despite that litigant having previously recognised the responsibility to ensure all sides of the argument before the courts could be advanced with full and adequate funding.”

Effectively this restores the status quo ante of government funding for the case, undoing the harm of the government's cuts and allowing the case to be decided on its merits, rather than who has the biggest wallet. And despite the Court's disclaimers, its difficult to see this as anything other than a strong criticism of unfair behaviour and abuse of power by the government.

National has of course already pledged to overturn the judgement no matter what the court decides. Which shows what they really think of Māori rights and the rule of law. They may very well pass such legislation. But if they do, the next government will simply undo it. Which raise the obvious question: wouldn't it be better to avoid all that civil disorder and damage to both the Crown-Māori relationship and the legitimacy of the state, and simply let the court decide the case on its merits? Or would they rather destroy our society in order to cling to an outdated colonial mindset for a few more years?

Dangerous ground

The Waitangi Tribunal has reported back on National's proposed changes to gut the Marine and Coastal Area Act and steal the foreshore and seabed for its greedy fishing-industry donors, and declared it to be another huge violation of ti Tiriti:

The Waitangi Tribunal has found government changes to the Marine and Coastal Area Act are characterised by a blind adherence to pre-existing political commitments at the expense of whānau, hapū, and iwi.

[...]

The tribunal found the government dismissed official advice, failed to consult with Māori and breached the principle of active protection and good government by failing to properly demonstrate "Parliament's original intent" and seeking to amend the act before the Supreme Court could hear the matter.

The report said the Crown's consultation with commercial fishing interests, while failing to consult with Māori, was a breach of the principle of good government

The Crown exercised kāwanatanga over Māori rights and interests without providing any evidence for one of its key justifications - namely that the public's rights and interests require more protection beyond what is already in the act - the report said.

They recommend killing the bill and engaging with Māori in an effort to identify and address an actual policy problem, rather than unilaterally attempting to eradicate their rights.

Combined with similar reports on Oranga Tamariki, Māori wards, and the Treaty Principles, and you're left wondering if there's any significant national policy regarding Māori which isn't a flagrant breach of te Tiriti. And looking back at those reports, they all identify the same underlying problems: National putting its obligations under its coalition agreements above the state's obligations under te Tiriti; a refusal to consult; and the systematic abandonment of good government practice and ignoring of evidence in order to ram through its policy. it seems that the government no longer recognises its Tiriti obligations, particularly the principles of active protection and partnership, and is actively reneging on our founding agreement, with all that that entails.

...And the Tribunal recognises this. It ends its letter of transmittal with a clear warning:

At present, the Crown’s actions are such a gross breach of the Treaty that, if it proceeds, these amendments would be an illegitimate exercise of kāwanatanga. We caution the Crown that, on the strength of the evidence we have received, to proceed now on its current course will significantly endanger the Māori–Crown relationship.

[Emphasis added]

Which is as clear a warning as you can get that the government is on very dangerous ground here. Te Tiriti is the foundation of our constitution. It effectively gives the government its right to exist. The government messes with that at its peril.

Foreshore and seabed 2.0

In 2003, the Court of Appeal delivered its decision in Ngati Apa v Attorney-General, ruling that Māori customary title over the foreshore and seabed had not been universally extinguished, and that the Māori Land Court could determine claims and confirm title if the facts supported it. This kicked off the foreshore and seabed controversy, resulting in some of the largest protests ever seen in Aotearoa, an outright racist campaign from National, the poisoning of crown-Māori relations, and the formation of Te Pāti Māori. And now, in response to another Court of Appeal decision, the government seems to want to do it all over again.

The decision is Whakatōhea Kotahitanga Waka (Edwards) & Ors v Te Kāhui and Whakatōhea Māori Trust Board & Ors, and it basically reinterpreted section 58 of National's Marine and Coastal Area (Takutai Moana) Act to make it consistent with its purpose clause and te Tiriti o Waitangi by allowing "shared exclusivity" according to tikanga. The upshot is that it would become significantly easier for iwi and hapū to gain customary marine title over their foresore and seabed - a fact confirmed in subsequent court decisions. National doesn't want that to happen - in fact, they don't want Māori to be able to gain customary title at all, despite what they promised Te Pāti Māori when they passed the law in 2011 - and so they plan to legislate it away (which they disguise as "restoring the intent of Parliament" - which is effectively an admission that they dealt in bad faith with their coalition partner in 2011). Of course, they're pitching this as being about beach access, like they always have, even though that is not and never was under threat. But they're quite open in the Herald about what its really about: protecting the aquaculture industry. So Māori rights are going to be sacrificed to protect National's donors and cronies. Which sounds just a little corrupt.

As with the 2004 law, no-one should expect Māori to take this lying down. And in the context of National's other attacks on Māori - the repeal of s7AA of the Oranga Tamariki Act, the attempted eradication of te reo from government, their plans to repeal / "reinterpret" te Tiriti - it is likely to lead to significant protest. And as with those other issues, no matter what "solution" National comes up with, it will be reversed by the next government, in the same way that Labour's Foreshore and Seabed Act was. The question then is how many aquaculture consents they will have corruptly given out in the meantime, and what will be done about them and the corporate scum who have corruptly instigated this mess.

The law rhymes

Everyone is paying attention today to the Supreme Court ruling that the President is not above the law and that Trump's tax returns can be given to a New York grand jury investigating him. But the Supreme Court decided another, far more important case yesterday, and effectively restored Native American sovereignty over half of Oklahoma.

Oklahoma used to be "Indian Territory". In the 1830s the USA ethnicly cleansed the eastern US of indigenous people and death-marched them to the west, dumping the survivors on the (then) border. Naturally, it signed treaties, promising that they would be left free to govern themselves, particularly in matters of criminal law. Then, in the early twentieth century, white people decided they wanted that land too, so they turned Oklahoma into a state. A bit over a century later, that state arrested, prosecuted, and purportedly convicted a child molester and a murderer. Naturally, they challenged their convictions. Their ultimate challenge was to assert that the state lacked jurisdiction, because they were members of a particular Native American tribe and their crimes had been committed on tribal land: when Congress turned Oklahoma into a state, it didn't extinguish tribal sovereignty over criminal law. And the Supreme Court looked at the law, and said "yep":

Today we are asked whether the land these treaties promised remains an Indian reservation for purposes of federal criminal law. Because Congress has not said otherwise, we hold the government to its word.

(If this sounds familiar, its because we've seen it before, in a different context, in Ngati Apa v Attorney-General, AKA the foreshore and seabed case. Like history, the law rhymes).

But while its ostensibly about criminal law and a particular tribe - the Muscogee (Creek) Nation - the decision goes wider. Because the Muscogee aren't the only nation covered by this particular set of treaties, and it raises the question of what else Congress didn't extinguish when it forced statehood upon them. And this affects the entire eastern half of Oklahoma.

Unlike New Zealand, the US has a long history of overlapping jurisdictions and tribal law. Even if their treaties have mostly been repeatedly broken and over-ridden and ignored by the federal government, there's enough of a remnant that they actually have the tools to deal with this in a just and respectful manner if they want to. The question now is whether they will, or whether they'll lose their shit at the idea that a indigenous person somewhere has some rights, and legislate to take them away like we did.

A referendum on the foreshore?

The Coastal Coalition - Muriel Newman's collection of cranks rejected by ACT - has launched a petition for a referendum on the foreshore. Unlike previous citizen's initiated referendum campaigns - for example, that in favour of child beating - the question isn't loaded. Instead, its a straight

Should the Marine and Coastal Area (Takutai Moana) Act 2011 be replaced by legislation that restores Crown ownership of the foreshore and seabed?

They now have a year to get the signatures of 10% of eligible voters, roughly 350,000. If they get them, then we're looking at a postal referendum on the issue sometime in 2013 (which the government will then ignore in order to avoid further breaching the Treaty of Waitangi).

The Gazette notice is here.

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.

Foreshore and seabed: Earthquake cover

Parliament is back tomorrow, and according to the Order Paper, the Marine and Coastal Area (Takutai Moana) Bill - AKA Foreshore and Seabed Act, v2 - is up for its second reading tomorrow. The timing is unfortunate - it looks like the government is trying to pass this hugely controversial legislation under the cover of the Christchurch earthquake.

That may not be the government's intention - but they have only themselves to blame for this interpretation. The bill was well down the Order Paper when the House adjourned two weeks ago [PDF]. They have, post-earthquake, consciously decided to prioritise it. If its not their intention to use the earthquake as cover, they're doing a bloody good impression of it.

On the one hand, I expect Parliament to continue to do its job no matter what disasters beset us - that's the sign of a strong democracy. On the other, I also expect politicians to refrain from exploiting those disasters for political gain. This looks just a bit too much like the latter to be comfortable.

(As for whether it is passed under urgency, now that Brownlee has been replaced as Leader of the House, I'm hoping there will be a change from his abusive House management polices. Simon Power's a decent guy, and I don't expect him to be nearly as thuggish).

Reported back

The Māori Affairs Committee has reported back [PDF] on the Marine and Coastal Area (Takutai Moana) Bill, and recommended that it be passed without amendment. That's right, nothing - not even the usual technical amendments to clarify intent. Reading Labour's minority report shows why: the government has rammed this bill through, prevented the committee from taking advice from the department on proposed amendments, and ignored all submissions. The 500 page summary of submissions was only made available to Labour Members yesterday, and the bill approved without amendment that same day. This is the same mockery of a legislative process we have grown to expect from National with its headline legislation - it was also used for Three Strikes and the government's prisoner disenfranchisement legislation - and quite apart from the obvious democratic problems, it does not lead to good legislation. But National wants this rammed through, and if this means squashing democracy and ignoring submissions, tough.

Its worth noting that the Māori Party colluded in this, providing National with the majority to do all this. So much for their commitment to the democratic process, or for "listening to their people". Their people submitted on the bill in good faith. Te Ururoa Flavell helped shut them down and shut them out to aid his National Party masters.

We can now expect this bill to be rammed through under urgency in the next fortnight. It will pass on Tariana Turia and Pita Sharples' votes. And they will be held accountable for that in November.

Foreshore & seabed: Myth busted

The debate around the government's Marine and Coastal Area (Takutai Moana) Bill has been pretty toxic, with Pakeha rednecks claiming that the law will mean ordinary kiwis will be barred from using the beaches by Maori. So, in the interests of introducing some facts into the debate, the Herald today looks at who is really stopping people from using the beaches. Their finding? The problem isn't Maori, but millionaires. The people putting up gates and shutting the public out are farmers and the residents of exclusive gated communities, both of whom effectively privatise public space by restricting access.

If we think this is a problem - and I agree, it is - then the answer is not to restrict justice to Maori, but instead to legislate for free access regardless of who owns the adjacent land. But a solution where Pakeha are allowed to privatise public space while Maori are denied justice and have lesser property rights is not acceptable, and can only be regarded as racist.

Foreshore & seabed: Premature

I do not like the government's Marine and Coastal Area (Takutai Moana) Bill. It discriminates against Māori, limiting their access to the courts and the redress they can win from them. And it sets too high a test for proving customary rights. Iwi after iwi have gone before the select committee to tell them this. The conclusion: the bill does not have the support of Māori in its present form. And that means that it is not acceptable as a de facto settlement. It should not pass in its present form.

But all that said, I think Labour's withdrawal of support for the bill and promise to repeal it if enacted is premature. The basic structure of the bill - cribbed from the original Foreshore and Seabed Act - is sound; as I've noted before, it is roughly where we would have ended up anyway had the government negotiated in good faith and reached a settlement. What's wrong is the details. And those can be amended. Given the importance of this bill, and the need for a lasting settlement, I think it would have been better to wait and see whether the select committee would make the necessary changes before withdrawing support.

But now its done, and this means the law is effectively doomed. Oh, it will probably pass - Tariana Turia has too much invested in it now to let it fail, and she will be judged on that by her voters next year. But its not going to be the lasting settlement Chris Finlayson had hoped for. Instead, it will be relitigated at the next election, and the one after that, until Māori get the deal they want.

As for Labour's preferred solution - preserving access and providing a framework for customary rights while throwing the real questions of thresholds back to the courts to depoliticise them - this is going to look almost identical the existing bill, with a few tweaks. If so, it raises the question: why repeal? Why not simply amend? It also invites the question of why they're objecting to Pita Sharples wanting to revisit the bill if it is passed, since its largely what he wants as well. And if it is what the Māori Party really wants, but couldn't get out of National, then it suggests that there's a Parliamentary majority right there, if Labour (or the Greens) put up the necessary amendments. They should try that first, before committing to repeal.

The chickens come home to roost

Between 2003 and 2006, the National Party waged a divisive, racist campaign against the then-Labour government's attempts to settle the foreshore and seabed issue. That campaign ended the moment John Key toppled Don Brash to become party leader. But it energised National's base in addition to polarising the nation. And now those chickens are coming home to roost:

National MP Allan Peachey is warning the Government that the foreshore and seabed saga is polarising the party's support, and many core voters feel betrayed and will never vote for National again.

A draft report, obtained by the Herald and written by the Tamaki MP, warns that the Act Party's campaign against the Marine and Coastal Area (Takutai Moana) Bill is "gaining traction".

[...]

"Many of the people in touch with me are threatening to resign from the party and to never vote for National again. We kid ourselves if we don't think we have a major issue on our hands among some of our core and loyal supporters," the report says.

National has no-one but itself to blame for this. They whipped their base into a racist frenzy, without thinking of how they'd have to govern the country (and make deals with Maori) in the future. Now, they're reaping what they sowed.

But amusement at National's self-inflicted suffering aside, this is not actually a good thing. One way or another, we are going to have to reach a settlement over the foreshore and seabed. National's descent into electoral racism under Brash has made that job much harder.

Foreshore & seabed: Sinking...

It looks like prospects for the government's Marine and Coastal Area (Takutai Moana) Bill are sinking fast, with the Iwi Leadership Group - a clique of powerful iwi leaders - rejecting it:

There is increasing division among Maori about it, with the leader of one of the most powerful tribes in the country saying it doesn't go far enough, and the pressure's starting to tell on the Maori Party which admits the bill may not pass.

Ngai Tahu leader Mark Solomon steers the waka for one of the biggest tribes in the country and he has delivered a message on the Government's new foreshore and seabed law: it's not going to work.

Mr Solomon's word carries serious weight; he spearheads the powerful Iwi Leadership Group which represents over 50 tribes.

The problem? The bill's test to gain customary rights is too difficult to meet. Iwi and hapu will have to prove not just that they owned and used an area or foreshore in 1840, but that they have continued to do so ever since. There's an obvious flaw in this test, and that is that if the crown has prevented the iwi or hapu from exercising their rights - for example, by stealing their land - then they are gone forever. In other words, the test stacks the deck in favour of the crown, allowing them to embed and legitimise past Treaty of Waitangi violations. You don't have to be Hone Harawira to recognise that this is unjust and wrong.

As for what this means, with the Iwi Leadership Group opposed the Māori Party are going to have a very tough time supporting the bill. Which means that if National sticks to its rhetoric on refusing to change it in any way, then it will likely fail.

The rednecks will no doubt cheer at that. But they shouldn't cheer too soon. The failure of this bill will not mean the issue goes away. Like the broader Treaty debate, it will never go away until Māori get justice. Instead, it will just mean that it gets relitigated through the coalition process at the next election. And with the expected demise of ACT, the Māori Party are likely to have a much stronger hand then, not to mention be much more willing to play hardball after the failure of their "doormat" strategy. Which will likely mean a much better bill for them.

In other words, Māori seem to have very little to lose by holding out for a fairer deal. As for the rednecks, this may be the best deal they can ever get. They should be careful what they wish for, because they might very well get it.

Foreshore & seabed: Sinking the bill?

The Māori Party has announced that it may not support the government's Marine and Coastal Area (Takutai Moana) Bill:

However Mrs Turia said yesterday that the party would take its lead from its people and the submissions during the select committee process.

"If people round the country, if our constituency says it is not worth our while progressing this, of course we wouldn't [support it]."

The reason for this is of course ACT's amendment requiring free access. While requiring people to do something they were offering to do anyway doesn't sound like so much, the fact that it is being forced on them by ACT is going to stick in a lot of craws. In many ways, its a microcosm of the whole foreshore and seabed debacle - the problem with the original act isn't so much where it ended up (you have only to look at the current bill, which is nearly identical, to see that) as how it was passed. And sadly, ACT seems to be driving the government to make the same mistake, imposing a settlement on Māori without, rather than with, their consent.

Ultimately this could sink the bill. ACT won't vote for it. The Greens won't vote for it. And Labour would be fools to vote for it if the Māori Party opposes it (Peter Dunne is irrelevant, as always). Even if it does pass, it will have lost all legitimacy. Any legislation on the foreshore and seabed is only legitimate insofar as it has the support and consent of Māori - and the Māori Party's votes are key signs of that support (especially given their practice of consulting iwi first). The result will be to perpetuate the problem rather than solve it.

So what happens if the bill fails? The current Act stays in place, and we go round again, with the Māori Party pushing for change through the coalition process. The difference will be that attitudes will have hardened, and they will be pushing for a better deal - which they will be well-placed to demand. The cost of Hide's redneckery may very well be the very thing he ostensibly wants to avoid: Māori gaining outright ownership of the foreshore as a default, and being able to charge people who use it, just like Alan Gibbs.

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.

ACT: Property rights for all, except for Maori

There have been appalling scenes in Parliament this week, as new ACT MP Hilary Calvert takes up her predecessor David Garrett's cause of whipping up racism over the foreshore for political profit. The focus of ACT's ire is the spectre of Māori charging people to go to the beach - something the bill doesn't really let them do, and something they've consistently said they're not interested in doing anyway. But through this fearmongering, ACT has now managed to get the government to agree to amend the bill to prohibit charging for public access. And so now they're turning to their real target: access for business:

Hilary Calvert: Does the Attorney-General agree that iwi customary marine title holders will be able to charge a fee for new mussel farms over the foreshore and seabed for which they have title, via a veto that his bill gives them through the planning process?

Note that a mussel farm by its nature restricts public access. So, ACT's position is that marine farmers should be able to restrict access, but that iwi and hapu shouldn't be able to, and certainly shouldn't be able to ask for consideration from those farmers as compensation for them not being able to exercise their customary uses. Māori should just surrender their property rights, however defined, to Pakeha, for free. Which is a pretty toxic attitude for ACT to take. Such attitudes in the past are one reason why we're having to go through a Treaty settlements process today.

On the face of it, an amendment which prohibits Māori from doing something they didn't want to do anyway shouldn't matter much. But the danger here is that such racist pandering will undermine Māori consent for the bill, and hence its legitimacy. This bill is effectively an informal settlement, and thus depends crucially on the consent of the iwi and hapu whose rights are being affected. If it comes to be seen by them as just another redneck dispossession, then it will fail. That may suit ACT very well. But its bad for the rest of us, who want a fair, just and durable solution.