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Thursday, December 02, 2010

Notes for select committee: FSA repeal bill

I will be at the select committee tomorrow to discuss
the bill. Here is the start of my notes:

The SOP for clause 61 (2A) re: "fishing or navigation" by others not precluding customary title is almost the same pathetic rationale that effected the confiscation in the 2004 Act. It only adds fishing whereas the original - sec.32 (4) - is just about navigation: "not lost merely because rights of navigation have from time to time been exercised in respect of the area." What these provisions really mean is that everything else - like building a sand castle in Finlayson's own example - is not precluded from extinguishing customary title. That is the racist injustuce of it. Navigation and fishing is not the building of a sandcastle, therefore the judges cannot automatically exclude that as a mechanism whereby customary rights have been extinguished.

It is terra nullius in all but name and at it's very base assumption - or assertion - is that the white man only has to lay his hand upon something of the native and all of a sudden there is according to his government now a right he has over that thing and that his interests in it (no matter how transient and regardless of any native right) will always trump the native interest. It assumes the native has no title worth upholding and no property rights worth enforcing. That is what this clause 61 (2A) is doing and that is what sec.32 (4) of the FSA 2004 did. It is a default superiority complex and is racism at its most gross.

The Lockian property creation notion of mixing one's labour with the land is probably the stem of the concept here, but it is an intellectual ruse. It infers in the way it is applied in colonial situations that the natives haven't been using anything, and prejudicially punishes those natives who have not exploited or despoiled their territory to the satisfaction of the outsider. The inescapable fact that the FSA presumes to deny is that the whole of these islands have been occupied and used by Maori for hundreds of years before either the European or the Maori knew of the other's existence.

In many blog posts about this I have described this as "the white man's touch" - because merely navigating does not involve touching. The white man at least has to climb down from his vessel and touch the shore or seabed for him to wipe out a native land right. Fishing, particulary from a vessel is in the same class and to that extent the white man's touch is still embodied in the bill.

A successful system of property rights is about mutual recognition rather than one party unilaterally taking, occupying and purporting to divvy up finite, fixed resources against the wishes and interests of the other party. That is what the Crown has done - for its colonising population that it serves - and it is theft and they are acts of aggression.

The problem of conflict over property and rights and territorial jurisdiction isn't that Maori rights are undefined in relation to certain areas it is that the Crown refuses to recognise what Maori recognise are their own property rights and territorial jurisdiction. Maori recognise each other's rights and extent of jurisdiction to a very large degree - it is only the Pakeha and the later immigrant population and their agent, the Crown, that does not recognise Maori rights and extent of jurisdiction. Sometimes this is from ignorance - albeit willful; sometimes because their own property rights (esp.Crown/"European" title) in some instances are at the direct expense of Maori (viz: those living and derriving income from confiscated lands). The Crown does not recognise the full extent of Maori rights and jurisdiction because it will be more difficult and expensive to go about the NZ Crown's primary business of converting Maori property (via the Crown's own laws) to private property for the benefit of the non-Maori if they did so.

In the current situation that conversion is of the aquaculture space.

The pre-emptive attempts to push through laws that will carve up the marine space on a basis that Maori will only get 20% - and therefore others 80% - is confiscation also. Cutting Maori out further by implanting foreign bodies in their waterways is a deliberate strategy. It's called confiscation. To game the government the aquaculture/marine developers play the part of the supposedly injured party that the government has to pay out if the trick doesn't work too - the rule is the white man will always be paid out at government valuation or market valuation, it's only ever the Maori that will be getting a token compensation. Desperate Iwi who can only receive payments for their 20% cut if they agree that it is only 20% - and to let others take up to four times their space in their own rohe - are also being played here.

The legislation has to be in concert - with one having to be ahead of the other - but the government on behalf of business interests ensures the parallel aquaculture legislation will predetermine Maori claims. This is what the Ngati Apa case was about and why the government had to pass the FSA first in 2004 - to give the Aquaculture Reform (Repeals and Transitional Provisions) Act a clear run to carve it up with investors certain that all Maori title had been extinguished and that the leases "coastal permits" and "aquaculture management areas" would be valid and not over-turned in court by an under-cutting Maori form of title. And in return the parallel Maori Commercial Aquaculture Claims Settlement Act was also passed (with the 20% deal). The same thing is happening now with this bill and the Aquaculture Legislation Amendment Bill before the House. From the explanatory note:

The Bill will make changes to regional coastal plans in regions where current plan provisions present the greatest barriers to aquaculture growth or the opportunities are greatest. Those changes will enable applications to be made for the farming of a wider range of species, including finfish, and some expansion of existing farms.
The Bill contains a range of measures to bring existing marine farms into the new regime with minimal disturbance, and to enable the processing of outstanding applications including those “frozen” under the current law. In most cases, the Bill will allow processing of those applications to proceed on commencement of the new law, subject to the provisions of the relevant regional coastal plan. The scope of the UAE test for applications lodged before the 2001 aquaculture moratorium will be narrowed to align it with the current law. The 2 interim aquaculture management areas (in Tasman and Waikato) will be concluded under the current law, since both are at a late stage in the process. This will include the allocation of settlement space in accordance with the Maori Commercial Aquaculture Claims Settlement Act 2004.
The Maori Commercial Aquaculture Claims Settlement Act 2004 provides for the full and final settlement of contemporary Maori claims to commercial aquaculture space in the coastal marine area, and for the transfer, allocation, and management of aquaculture settlement assets.
A new mechanism for delivering the Crown's obligations in respect of new space is, however, needed as a consequence of removing the requirement that aquaculture activities must be located within aquaculture management areas.
The Bill retains the core components of the aquaculture settlement, including all rights associated with 20% of new space created for aquaculture from 1 January 2005. The Bill is focussed on ensuring that the Crown's obligations under the settlement are maintained under the new regime by essentially retaining the mechanism already in place under the Maori Commercial Aquaculture Claims Settlement Act 2004.
Pending development of an alternative mechanism that might better fit the new aquaculture regime, the Bill’s current formulation of the mechanism delivers on the Crown's obligations.

The bill "contains measures to provide a minimum 20-year term for aquaculture consents" as well - not maximum, minimum!


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