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Friday, December 03, 2010

FSA 2004 repeal bill - notes

Some of my concerns with the bill:Clause 1: Titles
The dual language titles of the bill are tokenism as it is merely the title. The whole bill should be in both languages for the dual aspects of cultural inheritance to mean anything substantial.

Confiscation and retrospective validation of extinguishment and transfer to private interests through prejudicial definitions are the same in this bill as it was with the FSA 2004:Clause 7: Interpretation
common marine and coastal area means the marine and coastal area other than—
(a) specified freehold land located in that area; and
(b) any area that, immediately before the commencement of Part 2, is both owned by the Crown and also has a status of any of the following kinds:
(i) a conservation area within the meaning of section 2(1) of the Conservation Act 1987:
(ii) a national park within the meaning of section 2 of the National Parks Act 1980:
(iii) a reserve within the meaning of section 2(1) of the Reserves Act 1977:
(iv) a wildlife management reserve, wildlife refuge, or wildlife sanctuary within the meaning of section 2(1) of the Wildlife Act 1953; and
(c) the bed of Te Whaanga Lagoon in the Chatham Islands

customary marine title area means the part of the common marine and coastal area where

It's the same weasal words as "public" was in the FSA - which is conceded at Clause 121. So now with this bill under (a) it does not include private land - bits already in Crown freehold - just like FSA - and under (b) DoC looks like it gets carte blanche to do whatever it likes over the Crown conservation estate. Maori have forfeited those areas under this bill? Nonsense. It is those areas that must be tested and the Crown's granting of concessions and titles - including to itself and its agencies - investigated as to their validity. Why and how were they issued? One option may be to have the 6 year time window for customary interests in Clause 93 apply to all titles - incl. freehold - with any freehold title or other interest that is not claimed after 6 years from the commencement of the Act lapsing back to it's original holder (either Crown or Maori).

The unfair exclusivity test for Maori is in stark contrast to free pass all the other Crown-granted private interests get under the bill. It is the Crown that should have a test. Has the Crown and its title/permit holders had undisturbed exclusive possession to the respective areas over which their title/permits refer? If what is good for the goose is good for the gander then why can't the same hurdles to recognition be erected for non-Maori on the same basis as it is for Maori? The clause 20 abandonment provision extinguishes private/Pakeha property rights, but not on an exclusivity of use basis, but on a continuity basis - more favourable than the test for Maori interests.

The whole foreshore and seabed regardless of title needs to be investigated properly to establish the facts in each particular area or rohe.

Clause 27, 28 and 29 (the corresponding sections 7, 8 and 9 of the FSA 2004) relating respectively to access, navigation and fishing - must apply across all the unenclosed foreshore and seabed regardless of title or non-title status. That means that access and navigation - at least - is a public right across freehold/private title as well. So long as the area is not: physically enclosed according to law (including aquaculture areas and other marked areas), or a lawfully erected private structure in use (ie. not "abandoned"), or an area lawfully prohibited by defence, customs or other government activity, or subject to a waahi tapu then the public should have a right to access and navigation. Certain Clause 30 DoC powers for wildlife protection and public safety hazards would also be appropriate. This is the neutral option - that presumes open access - rather than this bill and the FSA which keeps all private title as tresspassable.

The best solution for these clauses and what should have happened with the FSA 2004 is the separation of this sub-part as its own bill - to be passed before the other legislation - that states the public rights of access and navigation and the extent of recreational/fishing activity regarded as a right. Passing this law by itself would have diffused most of the racial animosity harboured against Maori and would have underscored the Maori declaration upholding public access. It has been political and business interests that have stopped this happening and trying to roll everything together - the result may have been comprehensive, but not fair, durable or clean.

The priority for the big port and airport companies under Clause 40 is at odds with treating all fairly.

Clause 46 and 47 regards Crown and iwi rights of refusal is sensible. But "encourage development" means whoring out and privatising what was once open to the public. Is it a good thing to make it so easy to take?

As for the prejudicial test definitions:I have mentioned in the previous post that the definition section has already circumvented the recognition. Section/Clause 60 and 61 is the crux of the "white man's touch" as it has been replicated from the FSA 2004 and is where the SOP fits in:

s.60 Meaning of customary marine title

(1) Customary marine title exists in a particular part of the common
marine and coastal area if the applicant group—
(a) holds the specified area in accordance with tikanga; and
(b) has exclusively used and occupied the specified area
from 1840 to the present day without substantial interruption.

(2) For the purpose of subsection (1)(b), there is no substantial
interruption to the exclusive use and occupation of a particular
part of the common marine and coastal area if, in relation to
that part, a resource consent for an activity to be carried out
wholly or partly in that area is granted at any time between—
(a) the commencement of Part 2; and
(b) the effective date.

(3) Without limiting subsection (2), customary marine title does
not exist if that title is extinguished as a matter of law.

A matter of law? Specific legislation does this mean? or subsequent Acts to this bill?

s.61 Factors relevant to whether customary marine title exists

(1) Factors that may be taken into account in determining whether
customary marine title exists in a specified part of the common
marine and coastal area include—
(a) whether the applicant group or any of its members—
(i) own land abutting all or part of the specified area
and have done so, without substantial interruption,
from 1840 to the present day:
(ii) exercise non-commercial customary fishing
rights in the specified area, and have done so
from 1840 to the present day; and
(b) if paragraph (a) applies, the extent to which there has
been such ownership or exercise of fishing rights in the
specified area.
(3) For the purpose of subsection (1)(a)(i), land abutting all or
part of the specified area means—
(a) land that directly abuts the specified area; or
(b) land that does not directly abut the specified area, but
does directly abut any of the following:

Exclusivity. Hard to prove when the policy of Maori has been to not restrict the public. That openess is now being held against Maori.

There is nothing more I can put in a submission that will be allocated 5 or 10 minutes, but I would add that further management changes could occur through the establishment of waterways authorities along same legislation as Waikato for specific in-shore waterways like harbours and estuaries. The Hauraki Gulf Forum/Tikapa Moana could be constituted as one also. The Waitemata, Tamaki River and Manukau could be administered with the new Auckland Council as a single body composing three separate titles. The issue of the public use of the Tamaki portages has been neglected and should also be addressed. The surveying and Iwi collaboration in defining their own boundaries in regards to one another will set the scene for a global settlement with the Crown that will endure, rather than unilateral and pre-emptive action which unfortunately mark most of this bill.


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