If no one owns the Foreshore and Seabed, then the question that needs to be asked is ‘Who now has final say over what happens on the Foreshore and Seabed?’
If it isn’t to be Maori, then in effect the Foreshore and Seabed is still ‘owned’ by the Crown.
The true test of whether the ‘repeal’ is real will be if, for example, the tidal turbines proposed for the Kaipara harbour which local iwi Te Uri o Hau don’t want, still go ahead.
If the two hundred tidal turbines each the size of a small apartment building are plonked on the Kaipara harbour seabed, then in effect Crest Energy will be granted a property right around the footprint of those turbines.
Why should they be allowed a property right to parts of the Foreshore and Seabed, while local Maori miss out?
This whole thing is creepy
And what other things might be done that could give property rights and maybe ruin the foreshore? 
90% plus of West coast snapper spawn in the Kaipara, don’t like the sound of that.
hmmm we could always force them to take a 49% share in them…
I should.
As a frequent visitor to the Sounds I am concerned that iwi can charge extra fees for moorings, jetties, fishing, and set up aquafarms and veto others.
Aren’t there some provisions to roll back RMA consent requirements for Maori when developing the F & S..?
If so, that is grossly unfair and irresponsible…
“”Exclusivity must have been continuous without substantial interruption since 1840.”
Some examples of interruption included selling the land, having a port built over it or, as in the case of Auckland beaches, having thousands of people passing through and using it and the local iwi not exercising any control over use or occupation.
Mr Finlayson confirmed in Parliament that the holders of customary title, while not able to sell the foreshore and seabed, would own the non-nationalised minerals beneath it – all except gold, silver, uranium and petroleum.”
The fish hook for Maori, in my opinion are several
My recollection of the Court of Appeal decision which started all this in 2003, is that Court said the Maori Court ought to be hearing these issues. That has now changed to High Court. What I find odd, is the High Court is bound to follow CofA decisions, so that would see the case reverted to the Maori Land Court (I suspect I have mis-recalled something).
Second, “continuous without substantial interuption” – will that include confiscation, shonky Crown dealings to obtain land, shonky NZ Company dealings? Having a Port built or people wandering over it?? Well, if Maori “lost, scammed out of, stolen or confiscated by Crown or others” that land which enabled Ports to be built, or people to walk over it was illegally obtained, or unfairly obtained and that is the only reason its use was interrupted? Finlayson knows the Courts will rule firmly in favour of interrupted use, or at least he thinks he does, which is why this rhetoric about “legal owners”.
How can Finlayson say on the one hand if Maori gain customary title they will be the legal owners, and on the other say they cannot sell seabed and foreshore or the mineral rights beneath it, when private land owners can?
So what have Maori gained as a result of the past 19 months of consultation? Will Ngati Apa get to own what they wanted to own when on 19 June 2003 New Zealand’s Court of Appeal ruled they can test their claims in court? Will Ngati Apa get to have the final say on areas of the Foreshore and Seabed in their patch. If not, what was the point of this whole charade? It is a joke to pretend the Foreshore and Seabed Act will be repealed in substance. Any replacement legislation will be identical but for a few changes. The biggest change will be in the Title. If the Maori Party were honest, a repeal isn’t necessary, just very minor amendments to the present Act.
“I am of the view that the appeal must be allowed and the applicants must be permitted to go to hearing in the Maori
Land Court. I am of the view that the judgment of Judge Hingston in the Maori Land Court was correct For the reasons given below, I consider that in starting with the English common law, unmodified by New Zealand conditions
(including Maori customary proprietary interests), and in assuming that the Crown acquired property in the land of New Zealand when it acquired sovereignty (as appears from the passage from the judgment…”
From the Court of Appeal judgment. To my knowledge this hasn’t been overturned, so any issue of customary title is surely going tot he Maori Land Court not the High Court – or is the Maori Land Court on a par and under the jurisdiction of the High Court.
Anyone interested in that decision can find it here
http://www.converge.org.nz/pma/fs190603.pdf
I would expect the Government to have a final say, Don’t they get a final say on everything?
TBH When I see the Government having ‘negotiations’ with Maori over political matters like this, it looks like they are stalling for time because you know the Maori interest is going to come second to the Governments, every interest in the country does. So if the Government is consulting someone over a matter, they are doing it for some other goal, for publicity or to look Democratic or to look friendly or something. They get the final say no matter that’s the very essence of what Government is about.
Fair comment Dylan. In this case ACT wanted the matter dealt with more firmly again Maori, so John Key had to go one way or the other. I;m wondering what the Maori Party got in return?
Is their full “payback” that they can say we fulfilled our stated set up purpose, to get the thing repealed, and whether it effectively remains the same doesnt matter because it is repealed? Surely they have not become that cynical? They must genuinely believe there is a way to get customary title and actual ownership as a result of this step?
“I would expect the Government to have a final say, Don’t they get a final say on everything?” – excellent question since the crown will no longer own it. Or will the people of the land get referendums? Scary
Kelvin once again you are right. What is really sad is that the Maori Party has sat silent and allowed National to instigate many other measures, to the detriment of Maori, e.g. National Standards, for this one issue. What have they achieved? Nothing. A pig is a pig, no matter what its called….
What? Who cares about who own’s it the Govt can do whatever they want you have state enterprises building power lines on private farms
Dylan, but they dont miraculously then own the farm.
Wish I was a lawyer and could get on the racially divisive gravy train on its way to infinity. All this crap aint going to end until the sun becomes a red dwarf.
No they don’t own the farm but it doesnt matter what they own to me weather the Govt, nobody or Maori own the F/S the Govt can build those Turbines. The Govt has law and policy behind them that can overwrite ownership anywhere anytime over any issue.
Well Dylan, my understanding is that it DOES matter to Maori that they legally own it, as part of recognition it is theirs, whether it has a government imposed pylon or not is irrelevant tot hat particular issue. Equally IF the Government can do what it likes, then granting customary rights ought not be a problem.
Hmm ok my bad I thought the Maori didn’t want Turbines in the F/S and that’s what the fuss was about and ownership was just a variable involved
Well Dylan I am only going by the rhetoric of some Maori leaders who say it’s not about commercially benefiting from the land or stopping people entering it, it’s about having their mana restored by acknowledging what was theirs was wrongly taken. I have NO idea if that is how it would work in reality, for some or all iwi.
Isn’t it more about the iwi making money out of the turbines with the project being some sort of cash cow if they can get ownership of the F/S and charge a rental just like farmers on land do with wind turbines?
At common law the Crown has radical title over all land in New Zealand a concept much akin to sovereignty. It is impossible for property under New Zealand law to be unowned without statutory wording very clearly on the point. The new act would have to say something along the line of “all common law principles in this area are repealed” for it to not be held because saying that no one has beneficial ownership would not be upheld. As the Crown has radical title when land is unowned this means it has beneficial ownership. Thus the legal effect of the land change is nil. Parliamentary Sovereignty is stronger than any other country worldwide and it is entirely up to the government of the day what happens to the foreshore and seabed which is unowned despite the new act.
Yes Rob which is exactly why I find talks with Maori over these things tedious. If what Arnold is saying is true though then that would make the most sense, that the Maori want some of the profit’s coming out of the turbines (unrealistic request IMO). What exactly is the issue Kelvin can you set it straight?
The issue is over the ‘public space’ concept. If the seabed belongs to no one but something such as a turbine is plonked on the seabed, in effect a property right is created around the footprint of that turbine, it becomes the property of the company that owns it. The turbine farm will basically be a huge subdivision. Maori have been told they don’t own the seabed, but someone else turns up, plonks their turbine subdivision down and in effect becomes the owner of all the seabed area it takes up.
This isn’t a discussion about the rights or wrongs of tidal power or who will make money from any turbine farm, I just used that as an example to say that it’s total crap that no one will own the seabed. The system allows for property rights to the F&S to be created through the backdoor.
Maori are prohibited from selling a square centimetre of foreshore and seabed and yet that turbine farm can one day be sold off and the seabed it sits on is part of the package.
I don’t want Maori to be able to sell the seabed, but I am highlighting an anomoly that in effect gives others an opportunity to sell it off indirectly.
The thinking, I think is public domain is similar to the concept of “village common”, The benefactors of the common or public domain is everybody.
http://en.wikipedia.org/wiki/Village_green
In the UK Customary right can be claimed only after twenty years if force, secrecy or permission is not required to maintain access or use.
Personally I think the debate should be widen to encompass more recent customary rights of all New Zealanders.
I’d be gutted if my favorite fishing spot that my Grandfather took me to over the last 30 years, all of a sudden became a marine farm or marina, and public access was denied.
Although I personally believe Maori should have first bite.
That’s fair enough Kelvin. As always want I want to know is weather the turbine will be privately owned or owned by the state. If it’s privately owned then this is pretty outrageous if it’s state owned then the idea of ‘public ownership’ is still in there and the profits are going to benefit all the NZ people. If it’s going to privateers, Then your right it’s no longer publicly owned.
I think it’s privately owned – Todd’s have a big chunk of it. I understand what you’re saying Kelvin but how is this different to an oyster farm or marina or any other private commercial activity in the coastal marine area?