Foreshore & Seabed Act repeal - Maori Party optimistic

The Maori Party hope to repeal the Act. I hope they can get it drawn out of the private members ballot and I hope the opposition parties and United Future support a change. At that point they could do what I have always recommended - split the bill into two: The Foreshore and Seabed (Rights of Public Access) Act and the Foreshore and Seabed (Maori Land Confiscation) Act.

The first will give rights to people to access on foot the foreshore and seabed (everywhere below high water mark) if unenclosed or unfenced regardless of what title the property was on (similar to the anomalous navigation provisions in the current Act). It would also clean up the sloppy draftsmanship that leaves things like "recreational activity" as a totally undefined right (4WD? Shooting?) The second is self-explanatory and will force the parties' real intent out since if they vote for the first there is no question of public access being an issue. If title is given to Maori in the area they would have to comply with RMA and district plans as everyone else does which may limit what fencing or enclosures or other works are permitted in that area. The Crown or local government may enclose certain areas - but there are procedures for that too - often the same ones as everyone else.

If calling the residue untitled area of forehore and seabed the "public domain" instead of "Crown estate" must occur to ease the semantic sensibilities of Peter bloody Dunne, then so be it. A small price to pay.

You want to know what stealing Maori Land looks like? You don't have to go to the Foreshore and Seabed Act 2004 to find an example - that's too blatant. Just as the Act gave them an excuse to confiscate the Te Whaanga Lagoon on the Chatham Islands despite it not meeting even their own definition so other Acts of the past mask other general land-grabs. Search for it the most obscure places:

ROTOITI VALIDATION ACT 1909

5.Similar Orders in Council declared valid—
No Order in Council heretofore made under section ninety of the Public Works Act 1908, or under the corresponding provisions of any former Act relating to the compulsory acquisition of [Maori] land, shall, in any proceedings or in any Court, be questioned or held invalid on the ground that the land purporting to be thereby taken was not [Maori] land within the meaning of the Act under which the Order in Council was made; and every such Order in Council shall take effect and be deemed at all times to have taken effect according to its tenor, notwithstanding any error, defect, or irregularity whatsoever in the procedure by which the land was so taken.

Just, you know, if it was dodge back then but the government did it anyway, now it's all legal - end of story. Most of the really dodgy stuff however like the NZ Settlements Act 1863 (which was the primary instrument allowing wholesale confiscation) have expired leaving everything changed but with no dirty fingerprints because the legislation is no longer "in force" as such - despite the current state of affairs being obviously the direct result of the law.

That is the fear and the hope: that if all of the legislative provisions still in existence that validated all of the dodgy dealings and presumptions and transgressions of the Crown can be repealed then the way is clear for judicial action to recover what was lost.

The Treasury have told the government that working out the value of what they have confiscated last year is going to be difficult - but they haven't ruled it out.

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UPDATE:

A Privy Council ruling undermined the NZ Government's dodgy theft of Maori land by criticising the 1877 "Treaty as a nullity" decision in 1901. So the government began trying to legislatively curtail the implications of it. Speaking of dodgy 1909 laws I found this:

Chief Justice Prendergast also held that customary title could not be recognised by the Courts in the absence of statutory recognition, and that "native proprietary rights" could be disposed of by the Crown whenever it chose by simply acquiring the land, with no need for a sale, or for extinguishing legislation. The Wi Parata decision was followed by New Zealand Courts for many decades. The Privy Council, however, took a different view on a number of occasions.

HE TIROHANGA Ö KAWA KI TE TIRITI O WAITANGI

In the case of Nireaha Tamaki v Baker (1901)the Privy Council disagreed with parts of the Courts findings in the Wi Parata case, holding that Mäori customary title to land was recognised by both common law and statute, and that executive action such as a Crown grant could not by itself extinguish native title to land. The Privy Council, commenting on the finding in Wi Parata that unextinguished customary title could not be recognised by a Court, noted that: "this argument goes too far, and ... it is rather late in the day for such an argument to be addressed to a New Zealand Courts."

The New Zealand Courts, however, disregarded the Councils findings, and continued to apply the principles expressed by Chief Justice Prendergast in the Wi Parata case.

In a second case several years later, Wallis v Solicitor-General (1903), the Privy Council again asserted the existence of Maori customary rights to land as part of the common law of New Zealand. The Judges of the colonial Courts responded to the case with outrage, and after much heated discussion the colonial government enacted section 84 of the Native Land Act 1909, barring the enforcement of customary title to land against the Crown. This bar survives today via Te Ture Whenua Maori Act 1993 as an amendment to the Limitations Act 1950, with the effect that claims for the recovery of customary rights to land are only valid if asserted against the Crown within 12 years of the breach. This effectively bars most potential claims dating back to 1840
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