Here’s my take on the Foreshore and Seabed Consultation Document that was released last week.
There are four Options on offer.
Option 1 – Crown Notional Title – this option is pretty close to what the hikoi was demanding. Customary title would be restored, but when customary interests are investigated and found not to amount to customary title, the Crown’s notional title becomes absolute title. Maori get to have our customary interests tested, as we demanded during the hikoi, but if they find against Maori, we lose everything.
Option 2 – Crown Absolute Title – which is what the present situation is. If Maori are honest, the world hasn’t caved in, and Ngati Porou directly negotiated a deal that pretty much works for them. Other iwi can do the same.
Option 3 – Maori Absolute Title – what many Maori want now, which is more than what we wanted at the time of the hikoi. If all New Zealanders are honest, the world wouldn’t cave in. There would be a process for determining who holds ownership in any given area, access to the beach for all New Zealanders would be guaranteed and it wouldn’t be able to be sold on.
Option 4 – “Public Domain/ takiwa iwi whanui” – what the government want. If the government are honest it offers Clayton’s ownership – The ownership Maori have when we won’t really be owners. No one get to own the Foreshore and Seabed. Maori could go to court to test for territorial interests, which are property interests in land generally akin to ownership rights, but not actual ownership rights.
Personally any of the options would be okay by me. As long as hapu and iwi get to have a say over what happens on their own areas of the Foreshore and Seabed and their interests aren’t overridden by local government, central government or big business, then I’m happy.
I’ll still be able to head out to Ninety Mile Beach to go floundering, get some tuatua or put my long line out regardless of which option is implemented.
My concern is that when it’s all settled, the real issues that are weighing Maori down – unemployment, poverty, under achievement, poor health outcomes, teen pregnancy, substance abuse, incarceration rates and lower life expectancy will still prevail for Maori.
So let’s settle this once and for all, and then get on to dealing with the issues that will improve outcomes for all Maori.
Happy Easter Kelvin
INteresting to note, per my understanding, the favoured Govtoption has maori able to go to the High Court to test customary title. This is in opposition to the Court of Appeal case in 2003 which referred the issue to the Maori Court. Is hat correct Kelvin. I ask, because with an existing cour tof appeal decision saying the correct place to go is Maori Court, then wouldn’t that decision be a precedent needing to be applied by the High Court, and thus reverting cases tot he Maori Court?
My preference is public domain as a “non private ownership” standard (the original Labour position).
The only question about customary title, as distinct from mere customary rights, is what development could occur. Some developments (no more than now, so the absolute guarantees about access are being overstated) can restrict public access (possibly even private resorts) to the beachfront.
Section 32 (1a) of the current F&S Act says Maori territorial customary rights is “founded on the exclusive use and occupation of a particular area of the public foreshore and seabed” – under National’s preferred Option 4, this will still be the case.
So in court Maori will still have to argue they had exclusive use and occupation of a particular area of the F&S between 1840 and 2004.
That word “exclusive” is going to be really hard to prove.
The National/ Maori Party/ Act preferred option to the Foreshore and Seabed Act barely changes a thing.
Under public domain does this mean I can go and grab as much shellfish from this area as possible, as crown no longer has rights (ie to tell me there is a limit)?
No, section 3.2 of the discussion document says “the new legislation would specify roles and responsibilities. The Crown and local government, for example would continue to have regulatory responsibility.”
So, like I said it’s Clayton’s ownership. The ownership you have when you don’t really own something because,(in the glossary on P49 it says, “customary title refers only to territorial interests, (ie, property interests in land generally akin to ownership rights).”
“Akin” being the operative word.
Kelvin, how do you interpret the High Court suggestion in light of the 2003 Court of Appeal decision?
“So in court Maori will still have to argue they had exclusive use and occupation of a particular area of the F&S between 1840 and 2004.” Which is why the Court of Appeal said it must go to the Maori Court to determine.
“No, as they are 2 completely different CMSs. Unless someone made a version for Joomla your out of luck.”…
“simply no .”…