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Friday, November 18, 2005

18 November - Confiscation Day

This is the anniversary of the passing by Parliament of the Foreshore and Seabed Act.

I was not the only person, by any means, who protested against it - but to this day I am the only person to be arrested, charged and set to stand trial (June next year) in relation to actions in opposition to this Act. More a reflection on the pathetic, degraded nature of every single other person in New Zealand than it is of any radicalism on my part. If you let them they will take it - that is the nature of governments as it is the nature of men.

No need to emphasise that when I know something is unjust and of a significant magnitude I will endeavour to help rectify the problem. After participating and then being marginalised from the select committee process and watching the Government make a terrible mistake for all the wrong reasons and impotently witnessing the Parliament choose the evil version of history over right it became apparent that some sort of warning had to be issued. Being nice doesn't get you anywhere when you are up against a racist bully. Those sorts of people rely on getting their way through lies and intimidation - and usually the apathetic public will acquiesce because they want to believe the lie or are convinced it has nothing to do with them. This Act is an assault against the rights of New Zealanders and I'm thankful that many people have enough wits to understand that just because it is against a minority of which they may not be part, it is nevertheless an assault against the rights of us all. After viewing blogs, comments etc. over the past year there are a great deal of people who remain in affectionate attachment to the distortions, fallacies and out-right lies peddled by the current government - it is these ignorant people in whose name the government has acted. (Why here's a "Maori privilege" one already.)

The documents regarded as seditious by the Crown are available elsewhere, but it is appropriate to recall the petition I dispatched to as many people as I could email in a last ditch effort to stop it being enacted immediately after the 18th.

Many people understood the issues and in solidarity, as New Zealanders, emailed and faxed it to Government House. I thank them for taking the time to do that. Alas, I later learned that the Governor-General was on holiday and signed the Act after having it in her hands for less than one hour. I take it she did not read it even though her Official Secretary informed me she was aware of many petitions coming in pleading for her not to sign it. Such is our wholly inadequate system. Those interested in the Head of State and our constitution should note the course of action that is recommended to the G-G as an option instead of just refusing to sign.

This petition is the only one I believe I have ever made to central government. It's long, but it could not be more clear. Note the quotes in the Cabinet manual from Sir Kenneth Keith who last week was appointed to the International Court and note also the United Nations Special Rapporteur for ending racial discrimination is also visiting this country to investigate the issue. And let me say just once more: that "law" is contrary to our constitution and is invalid, inoperative and should be resisted.

-URGENT----------PETITION----------URGENT---------PETITION---------URGENT---------PETITION--------URGENT----------PETITION----------URGENT---------PETITION-

FAX: 04 389 5536
EMAIL Stefan.Wolf@govthouse.govt.nz

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Would the Official Secretary or other servant urgently print out this email onto large-sized paper and dispatch this petition forthwith to Her Excellency, The Governor-General, praying that it be read by her.
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From: The Citizen(s) whose email address is at the head of this page and who can be contacted at that email address for our full details if so desired.

To:
The Governor-General and Commander-in-Chief, Her Excellency Dame Silvia Cartwright PCNZM, DBE, The Representative of our Head of State, Elizabeth II, Queen of New Zealand.
Government House, Wellington

Your Excellency,

We, the undersigned have the grim duty to cause this, our petition, to be presented to you for your perusal, consideration and action.

This is an urgent matter regarding the Foreshore and Seabed Bill that is being rushed to you for your assent. Before signing the Bill we implore you to please read this petition.

We hereby request the following three things.

Firstly:

That you fully read the entire Bill before exercising your prerogative Reserve Powers to decline assent, or, having read it and satisfied yourself that this petition is without merit, assenting to it.

Secondly:

That you fully appraise yourself of the extraordinary circumstances by which someone would petition you to use your royal powers by making (under XVI of your Letters Patent, 1983) a request for your Ministers to properly furnish yourself with information that would satisfy you that your assent is appropriate, or not, as the case may be. Your options to warn or counsel Ministers after assent, we fear, will be ineffective.

Thirdly:

That you decline assent to the Foreshore and Seabed Bill. We note that such an action has no New Zealand precedent, but also note that such an overt and discriminatory confiscation outside of war-time also has no such precedent and is contrary to the common law doctrine of confiscation at the very least. The power to decline assent is implied in sections 4 and 16 of the Constitution Act 1986; part IV of your Letters Patent, 1983; is accepted as part of the common law by our constitutional conventions and made explicit in other constitutional documents, inter alia the Preamble and 1.10 of the Cabinet Manual.

Indeed the term assent itself comes from the Latin sentio: to think. Declining to assent would cause a constitutional crisis if the Prime Minister insisted upon it. We would not be pleased should you be forced to resign, or should you feel the need to offer your resignation - we would rather the Prime Minister resign in that case. However you may consider the following option:

It may be possible for you to request permission of your advisors to formally decline assent, giving your grounds for doing so in writing, and then awaiting whether that permission has been granted or not - as a token of your concern, and our distress. If your advisors then direct you, similarly in writing, not to use your prerogative to decline, then you could act on their advice and then sign the Bill. That alone may be enough to both signal the necessary gravity of the situation to your advisors and yet (by not actually finally declining to assent) you would not reasonably be causing any constitutional crisis as far as the Government or the public was concerned. This method of requesting to decline assent, if publicised, should also ensure you were not targeted as any part of civil disorder, and would enhance your mana in the role of a diligent national symbol of unity.

On the First matter:

The public needs assurance, the aggrieved parties need the knowledge, the Members of Parliament who did not give their consent to the Bill would benefit, and those unhappy elements in the community ready to initiate violent action may be dissuaded: that if Her Excellency made every effort available to ensure she gave her assent (if she is to give it) on the basis of a wide range of relevant information then that assent will be more properly and satisfactorily legitimised. A full reading of the Bill and its constitutional import may be considered a minimum requirement under the circumstances.

On the Second matter:

As Part XVI of your Letters Patent require you and your Ministers to be "fully informed" so Part XVII requires us, members of the public, to "aid and assist our Governor-General in the performance of the functions of the office of Governor-General." It is in that capacity and under those duties incumbent upon us that we here offer our aid and assistance to you in the form of this petition.

The Bill is injurious to the public welfare, peace and good order of the nation. In exercising your duty of care to the peace and good order of the Realm we note that the Bill, already divisive, has begun to result in acts of civil disorder, threats of escalating violent disorder, the sworn non-acceptance of the Bill by many people and general scepticism that any good will come of it. In short, this Bill is not in the best interests of the nation.

The public have not had an adequate input into the Bill. Passage of this Bill was marked at every turn by haste and the curtailing of public input. For your information: 94% of the almost 6000 submissions by the public to the select committee were against the Bill, less than 10% of submissioners were ever heard in person, the committee only visited three locations and cut their planned hearings short, and the choice of who was heard was decided by an advisor to the committee and not even by an M.P. Then the Bill was put through in urgency last week at which point the Government put in a 65 page amendment brokered in a "back-room deal" at the last minute which no other M.Ps had read.

We therefore wish to note the procedural problems with the Bill and also wish that you do not similarly rush to assent or decline the Bill without first making yourself aware of all the ramifications of so doing.

Without the need to recall the harrowing trauma of our recent past and its on-going effects, confiscation of Maori land rights without compensation is contrary to the Treaty (Second and Third Articles) and is generally regarded as an injustice.

Governors of New Zealand signing instruments of confiscation ought to be a colonial anathema not something you are contemplating having to do.

On the Third matter:

We draw to your attention the following laws and conventions pertinent to this petition and your authority:

Regarding the Treaty of Waitangi:
"Article the Second
Her Majesty the Queen of England confirms and guarantees to the Chiefs and Tribes of New Zealand and to the respective families and individuals thereof the full exclusive and undisturbed possession of their Lands and Estates Forests Fisheries and other properties which they may collectively or individually possess so long as it is their wish and desire to retain the same in their possession; but the Chiefs of the United Tribes and the individual Chiefs yield to Her Majesty the exclusive right of Pre-emption over such lands as the proprietors thereof may be disposed to alienate at such prices as may be agreed upon between the respective Proprietors and persons appointed by Her Majesty to treat with them in that behalf."


Regarding the Constitution Act 1986:
"16. A Bill passed by the House of Representatives shall become law when the Sovereign or the Governor-General assents to it and signs it in token of such assent."

Regarding the Letters Patent Constituting the Office of Governor-General of New Zealand, 1983:
"XVI. Our Ministers of the Crown* shall furnish Our Governor-General with such information as he may request with respect to any particular matter relating to the Government of Our said Realm."
"XVII. Our Ministers of the Crown and other Officers, civil and military, and all other inhabitants of Our Realm of New Zealand, shall obey, aid, and assist Our Governor-General in the performance of the functions of the office of Governor-General."


Regarding the Cabinet Manual (latest edition, 2001):
"ON THE CONSTITUTION OF NEW ZEALAND: AN INTRODUCTION TO THE FOUNDATIONS OF THE CURRENT FORM OF GOVERNMENT" By The Rt Hon Sir Kenneth Keith:
"The New Zealand constitution* increasingly reflects the fact that the Treaty of Waitangi is regarded as a founding document of government in New Zealand...
"The prerogative powers of the Governor-General are part of the common law. They exist independently of statutes...
"The Treaty of Waitangi, which may indicate limits in our polity on majority decision making. The law may sometimes accord a special recognition to Maori rights and interests such as those covered by Article 2 of the Treaty. And in many other cases the law and its processes should be determined by the general recognition in Article 3 of the Treaty that Maori belong, as citizens, to the whole community...
"Policy and procedure in this area is still evolving...
"Governor-General may assent - or not - to Bills passed through the House...
"The Letters Patent indicate that the role includes being informed and consulted, and advising and warning Ministers. The office has central symbolic, unifying, and representative roles...
"There is for instance much emphasis in law and in practice on those exercising public power giving fair hearings to and consulting those affected by the exercise of that power...
"A balance has to be struck between majority power and minority right, between the sovereignty of the people exercised through Parliament and the rule of the law, and between the right of elected governments to have their policies enacted into law and the protection of fundamental social and constitutional values. The answer cannot always lie with simple majority decision making. Indeed, those with the authority to make majority decisions often themselves recognise that their authority is limited by understandings of what is basic in our society, by convention, by the Treaty of Waitangi, by international obligations and by ideas of fairness and justice..."
"1.10 Only in a very few cases may the Governor-General exercise a degree of personal discretion, under what are known as the "reserve powers."


Conclusion:

Upon reading the Bill, examining your conscience and weighing the facts of the nature, implications and consequences of the Bill we hope that you will look favourably upon this petition as the options laid out in it constitute our last peaceful, legal recourse in this matter.

We are, for the time being, your loyal servants,

Name, address etc. of petitioner(s) to be supplied upon request at
the email of the sender.

-URGENT----------PETITION----------URGENT---------PETITION---------URGENT---------PETITION--------URGENT-------PETITION----------URGENT---------PETITION-

I wish I could tell you I was on the way to destroy something precious to the government and by the time you read this it would have been done. But I'm tired. Very tired.

4 Comments:

At 18/11/05 11:24 pm, Blogger Graham Watson said...

I suspect this ACT will go down in our history as one of the most shocking confiscations oif property and removal of property rights and legal rights.

Labour were just redneck kneejerking, it will come to haunt them far more than the loss of the Maori seats.

 
At 20/11/05 10:44 pm, Blogger peterquixote said...

good start TJ you have
Graham Watson on the line, now me, I will study this,

question one,
is the meaning of "fisheries, and other properties" established as having included the forshore,
and if so
question two,
how would you the state perform the duty of entrance exit control to the land general if it do not own that shoreline,

 
At 21/11/05 12:34 pm, Blogger t selwyn said...

PQ:
Q1. Yes
Q2. State can patrol beyond that and/or Iwi can perform those functions (as Tasman discovered). Once land is sold then an implied easement (at the very least) is established in order to access property from the sea.

The confiscation Act says that navigation rights go over private property but public access rights do not. This is one of the many inconsistencies in the Act. I think a general right to navigation and traverse by foot should affect all areas that are unfenced or unenclosed - whether private or public.

 
At 8/4/06 4:59 pm, Anonymous Anonymous said...

We have seen Iwi control in action on the East Coast N.I.
Come clean TJ tell the truth about how Iwi control things,or don't you know ? I may yet come back and write some stories for your readers to ingest.
Image what would happen if Iwi had ownership!!!!!!!!!!!!

 

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