Sir Humphery's Antarctic Lemur starts us off:The Whakatohea tribe is attempting to grab 50km worth of Bay of Plenty coastline near Whakatane by filing a claim in the Maori Land Court. Obviously if this tribe succeeds in its efforts, the precedent is set for many other such claims.
The claim was filed by a lawyer who helped Labour write the
Foreshore and Seabed Act, and it goes against the very spirit of the Act as sold to New Zealanders by Helen Clark.
This is either clear duplicity on the part of Labour, or incompetence in drafting the Act in the first place.
I realise some people associate the entire issue with private property rights. Correct me if I'm wrong, but you cannot benefit from such land claims unless (1) you're part of a tribe, iwi or hapu and (2) you're therefore Maori. The customary rights awarded are unlikely to be tradeable so therefore its not 'private' property...
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T Selwyn said...
Whakatohea aren't grabbing anything - the Crown has done all the grabbing. That sort of talk is both ignorant and impertanent.
Claude Edwards (whom I have spoken to about this) and others are using the Act to try to gain some sort of status for the Iwi over that stretch of coast. I said he should boycott the whole humiliating process but he seemed to think that using the precedents of the past there could be some possibility of recognition based on the nothing-to-lose principle. Good luck, I say.
AL: "Correct me if I'm wrong, but you cannot benefit from such land claims unless (1) you're part of a tribe, iwi or hapu and (2) you're therefore Maori." You are wrong so let me correct you: They are property rights and not owned by the State therefore they are private property rights - simple as that. But semantics isn't the issue is it. Pakeha have had their claims validated by the Act and Maori have not. Is that fair?
Section 32 is an abomination dreamt up by Englishmen (Cullen and Dale Jones) and if anything could be described as being "anti-New Zealand" then it would be this. Like the ugliness of past racist legislation they first had to acknowledge the property right in order to extinguish it, and they then had to tell us how that came about. They have created a history where Maori should have put barbed wire around every bay and beach and had armed patrols along the coast right up until six months ago in order to even qualify for the pathetic "reserve" status. That's not our history.
As the law stands currently the Crown can claim that the invasion and massacre of Whakatohea on their beach in September 1865 means all claims are void. But this conflicts with the Crown's apology and acknowledgement that that event was illegal - unless they are saying that it wasn't. You see the problem and inherent contradictions in the Crown's position? Do Maori have to suffer the idignities of some Pakeha standing up in court and saying that when the Crown soldier/settler raped a Maori child on the beach it extinguished the tribe's rights over it (for example)?
The only thing ruled out (sec.32(4)) in Pakeha/Crown claiming that Maori have absolutely no territorial rights in the area is that navigation over the area may have been carried out! The law states they have to actually make an effort to touch it in some way as opposed to just sailing or floating over it or anchoring on it. That is why I call it "The White Man's Touch" rule. I get displeased at having to explain these things to people and I get similarly displeased when I see lies peddled by political parties and politicians in this regard. It disgraces the nation and undermines the credibility of the entire system quite frankly.
How can we reverse this law? I would like to know the peaceful alternatives because the November 18 anniversary of the confiscation will not be marked by some namby-pamby exercise in hand-wringing and quiet reflection by me (regardless of whether I'm at Her Majesty's pleasure or not). Pleading on an intellectual level with NZ white people not to be treated like an Abo has only had limited success in the past for Maori - and judging by the F&S Act is not working currently - so what are we to do?
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Antarctic Lemur said:
Tim Selwyn: customary rights are effectively leased rights to various components or resources on an area of land, handed out based on continued residence in that area since the Treaty of Waitangi. The land still technically remains owned by the Crown, and the rights to use those resources may not (as far as I'm aware) be traded with other entities.
Therefore it is not private property.
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Reid said:
Tim Selwyn: -
Why is Stephen Franks wrong when he makes comments such as:
"Maori leaders have ignited ridiculous expectations of beach ownership out of court judgements that said they probably owned little – if any – foreshore, but should be able to test the evidence in court. ACT thinks the court’s decision was wrong, but we uphold property rights and the rule of law by supporting Maori rights to proceed in court."
You're obviously a lawyer, care to explain why Maori had a claim at all? All you've used above is emotive bs.
I might add it's obviously dangerous for leaders (I assume you're respected in your community) such as yourself to inflame passions based on nothing.
It would be a shame after all, if a whole lot of expectations and protests and energy were expended when the actual substance of the Maori claim to prior ownership was in fact like this 1994 Maori Land Court decision that included the statement ‘We find there is no such and never has been until very recently a Maori concept mana moana; it has become the vogue probably since the fisheries settlements began. We are of the view that it is rooted in greed and ignorance not tikanga Maori. It has no place in the matter before us.’
Not being expert in the field Tim, I wouldn't know where the truth is. Care to enlighten us (without the emotional bs)
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T Selwyn said:
AL:
Your definition of private property seems to be that if you don't have a chance to own it it is not private property for the preson who cannot transfer it. You are incorrect. But now I realise you are talking about the rights being property under the F&S Act - then yes the property right has been watered down to something less than property rights and therefore a confiscation.
Reid:
Maori shouldn't be treated like Abo's: where to begin?
At this point I'm going to start using the terms "Pakeha" as an ethnic group and "Crown" as the government and State of New Zealand sometimes interchangeably because with this issue they are the same thing and represent each other's interests.
Steven Franks is a racist, let me first make that absolutely clear. He is a vile racist bursting with the worst prejudices which he attempts to turn into legalese and through completely inaccurate and offensive generalisations tries to make his race-hate seem as dinkum Kiwi as Maori-bashing. I have met the man and read his writings and seen his comments on a variety of issues concerning Maori and I do not make the above observation lightly.
Now let's analyse what Franks has to say:
"Maori leaders have ignited ridiculous expectations of beach ownership out of court judgements that said they probably owned little – if any – foreshore, but should be able to test the evidence in court." - No, Maori have always held that they have property interests in the F&S. Because Pakeha can stop Maori claims to validate their holding while getting through their own (often against Maori wishes) this process of confiscation by a thousand cuts is viewed by Pakeha as evidence that Maori have never cared about the issue - wrong! Maybe the Crown never tried to confiscate the F&S before because there would be open conflict? Issues about policing Maori so they don't have "expectations" are a well-worn Pakeha preoccupation. It is akin to "uppity" as far as an argument goes. Is it time for Maori to say that Pakeha have to stop having ridiculous expectations that their culture and language should dominate this country forever or perhaps that their ridiculous expectations that they can just keep confiscating Maori property forever is dangerous? No doubt Pakeha said that about giving Maori votes. And why? Because the Maori might reach the ultimate expectation: All the property that you didn't pay for now has to be fully paid for or returned. Has he ever said other property owners should have low expectations? What Franks says is that Maori are not allowed to have expectations of equality.
"ACT thinks the court’s decision was wrong, but we uphold property rights and the rule of law by supporting Maori rights to proceed in court." - Apart from the patronising tone why does he think it's wrong? What reasons does he give? He just asserts that it is. What he is saying is that he automatically assumes the Crown owns it all, every square millimetre, and wants this property to be in State hands.
You state "emotive bs" is my reasoning. But I suppose the white rights march in Nelson and the ridiculous "Kiwis" carping and access restriction bogeymen are not emotive bs? Yes, and that bloody Ghandi and Mandela and human rights lawyers and their "emotive bs" about equal rights and everyone should have a vote etc. And Kate Sheppard's emotive bs about women's worth...
You ask me "to explain why Maori had a claim at all?"
I ask you: explain why the Crown had a claim at all. Why do Maori have to answer that question? If the Crown doesn't own it there is only one group or class of people in this country that can - isn't there? The default setting for territorial property in this country should obviously be Maori not the Crown. The only way the Crown can own something is if they either buy it or steal it. Correct? Is that correct or not? Even without the Treaty it still holds. Is there any other way that it occurs?
But three possibilities exist - they are both laughable.
Abandonment: Doug Graham likes to think that Maori just chose to abandon things and then it automatically becomes the Crown's - like if the Crown said that you haven't moved your car for three days therefore it now belongs to them. However the Hikoi at the very least proves that the rights and property in question is anything but abandoned. I will rule out the abandonment argument, not just because it is patently insulting to say that people who walk the beach every single day and their family have owned it under their own terms since time immomorial could have possibly abandoned it, but the establishment of new regimes are imposed by the Crown against Maori wishes - if things were abandoned then by definition there would surely not be any problems let alone widespread horror from the effected people. If the Crown tried to retrospectively make an abandonment rule so that it cuts off the claimant group so they couldn't make it "unabandoned" then that rather puts a lie that the item was ever abandoned - without first giving notice to the known owner how could that rule have any credibility?
Swapping: This usually occurs under duress from the Crown and there are many examples. Once again if the "swap" occurs only on government terms then it is hardly a legitimate swap. The Crown may like to believe that they have "swapped" freehold pursuit by Maori for customary rights orders and reserves and 20% of the aggregate aquacultural marine space - but even they aren't seriously running this line. Some swaps through history have been legitimate of course but they may be realistically be put in the "purchase" category as items of value were exchanged on definite terms.
Gifting: The Maori just give it up as a present with no strings attached. Rather rare. But even if you look at National Park and other properties they were transferred for a reason or as part of a swap/duress. So this too may be put into the purchase category.
So, from purchase or theft the property is transfered (usually at a huge profit) to the Pakeha - and that is exactly what has happened in the past and what is currently occuring around the coast. The F&S Act was the enabling legislation for the Aquaculture Act that divvied everything up the way the Crown wanted it, including restricting Maori to a notional percentage of space and totally Europeanised (I can't think of a better term) and commercialised lease scenarios, ie. Maori are more supplicants rather than owners. That is the also the basic process of European settlement as practised here. Now, given that the Crown can either buy or steal it what have they done to the F&S? Have they purchased it? Have they stolen it?
If you think they have purchased it then what are the terms and for how much?
If you think they have stolen it then how much compensation should they recieve? Surely you would have to be consistent and follow the principles applying to property and say a fair market value. The F&S Act says that if the Crown end up owning local body property because of the Act then the local body gets compensated at market value - why should it be different for Maori?
Maori utilise their territory according to their own rules until the Crown can somehow stop them and get them to follow the Crown's rules. The Court rulings leading to the F&S Act were not based on the Treaty - and if they were it would obviously not favour the Crown on any reading you could possibly make of it. So, without being emotive: How generations of whanau, hapu and iwi have used their F&S as part of their property and that if not a single European or non-group member had even seen let alone touched that space how could it possibly belong to anyone other than it's owners? What does the Crown have to do with it?
The Crown's rules are not for the benefit of all "kiwis" they are for the benefit of Pakeha. Without the rule Pakeha have to go directly to Maori to access the resources. Maori lose their rights and Pakeha now have 80% of the marine space of which Maori may have had 100%.
Here's where the Aborigines fit in.
The argument that Maori have no ownership rights to the F&S is the same one for everything else. The Crown/Pakeha conception of Maori property is that Maori don't really "own" their property they just use it. Maori can occupy an area but they don't really "own" it as such. Only the Crown and Pakeha can do that. So the mountains aren't used by Maori very much so the Crown can take them. Ditto swamps, lakes, rivers, beaches, coastal marine areas etc. Then Maori don't own their forests either they just have a right to fell a few trees and catch a few birds and seasonally cultivate a few things but only what they were doing in 1840 and only in the method used in 1840 and of course a Pakeha can be appointed to oversee and regulate all this. That is the thinking that led to Crown seizures of land including the coast. What is the confiscation if not the extension of that doctrine?
Pakeha can own the coast, they can have their holding recognised because they hold Crown-issued pieces of paper saying they own it. No one says that these have been issued in fault because the Crown owns everything below high water mark. They not only refused for years to issue it to Maori, once one group and the Courts said the Crown had to at least look at it they then banned all Maori from ever claiming it. Not only that but the good white citizens of Nelson have protested and Nick Smith (the local National MP) even went so far as having the government try to overturn a local Iwi's Crown-issued piece of paper which says they own their coastal area. So even when Maori own it the Pakeha way that is not good enough because they are still Maori. Do Pakeha owners get that treatment?
Look at it if Pakeha had got the treatment: Would they accept Maori coming along and saying the Crown owns everything that Maori consider to be important to them regardless of how perfect the Pakeha provenance.
As far as your land court quotation and idea that Maori leaders are dangerous: firstly, as I have pointed out there are most definitely property rights at stake and selective quoting from supposed judgements doesn't change that, and secondly, how can the locals standing up for their rights be dangerous? Maori have had to put up with dangerous Pakeha leaders who have stolen and defaced their possessions and culture for many a decade and must suffer the blatant and crude innuendo, invective and lies of many Pakeha politicians. The media is rife with the most horrendous anti-Maori slander. If you read and saw the news and public discourse through Maori eyes then you may be depressed and exasperated.
I, for one, would not want to inflame people based on a lie or misinterpretation over this issue. Do you think this is fun? Do you think being treated like an Abo in your own country is tolerable?
There is another theory out there in Pakehaland and it is one adopted by many immigrants who, like most locally-born New Zealanders, are utterly ignorant of our history. It underpins thinking at many levels not just the uneducated masses. It is this: Maori as a people have lost a war, or series of conflicts and have been defeated at arms and therefore their properties are rightly war spoils to be disposed of by the Crown as such. The Crown has violated the Treaty so many times and so consistently that even without Chief Justice Prendergast's "simple nullity" ruling of 1877 any argument that the Treaty holds validity and weight is obviously untrue. The fact that the government has not formerly revoked it by way of legislation is irrelevant. Now since the Treaty does not hold, all of the guarantees to Maori also do not hold either, including inter alia equality with Pakeha and Maori property rights. The Crown rules not because it is right or just but because it can and Maori can't stop it (might is right).
Which means Maori are a subject people and not inherently equal as their rights are still beholden and secondary to others. Their access to the courts etc. are to be handled in ad hoc ways where the Crown can maintain their advantage. The point of the Crown is to make sure that Maoris are neutralised and that every action against them in the past must be upheld by the present. If the Crown has to act now in the interests of those Pakeha and the governments of the distant past to relegitimise every confiscation, land-grab etc. then so be it. Any step to acknowledge Maori rights is one less Pakeha right.
Maori should be told that the Pakeha way of doing things - through the courts - is where they should place their faith so they don't adopt violent means. But if the courts ever rule in their favour then they should be reminded that parliament is sovereign and is the highest law. At this point Maori have to be told to be good and behave themselves and maybe they may get a certificate of apology eventually or a token seat on a committee somewhere to shut them up.
If the Maori don't like it then they should overthrow the regime and put different rules in place. But of course if they try that then they'll be imprisoned and have their property confiscated. To paraphrase Dr Cullen: "You lost, we won - get over it."
It is that colonial and authoritarian philosophy of governance that permeates Pakeha thinking and is what it all boils down to when all the other theories and reasons are left resolved. It is a brutal and simplistic insecurity. The US, the UK and Canada all have many measures of autonomy for indigenous peoples and tribes that Pakeha think would be an apocolyptic Maori separtism if applied here - but in other jurisdictions there seems to be few problems. We are still slaves to all the worst aspects of our history in many ways.
People should be made aware of our history, the motivations of the Crown and Maori and all the options we have to remedy totally unsatisfactory situations - that is what I will continue to do. My responsibility is to do what I can to get results; not necessarily lead anyone. Since I am not prepared to instruct others to do anything that I, myself would not do I do not consider my stance to be irresponsible.
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Because the debate isn't really one for pithy one-liners it is difficult to cut through the ingrained racism that most Pakeha consider to be common sense. If you have any ideas or have uttered anything regarding the Foreshore and Seabed issue and disagree with me then this comments section is the place to debate it, because I really can't be fucked having to recycle abbreviated content on every blog to put you ignorant red necks in place individually.
