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Wednesday, February 09, 2011

Sinking feeling over Marine bill

Alerted by NRT to the early reporting of the select committee.Crucially, no change to Finlayson's amendment to get this bill having the same confiscatory customary title test as the FSA. This sets the threshold by narrowly defining what isn't to create what is. What is going to be able to extinguish title is left open so that even building a sandcastle on the beach is arguable. So much for the Minister's self-congratulatory little story about sandcastles that so impressed everyone in the House. And it is quite deliberate.

For Maori if it's a high jump the Crown (acting in the interests of Pakeha) will put the bar at 10 metres, and if it's a limbo bar they will put it at 10 millimetres, and all the time say that it's a fair competition. And oh, by the way they, the Crown (and the Pakeha interests they represent) don't need a test they have all assumed to have passed.

That's right: what else is "the 10 year rule" in section 38 I see in there but a free pass to annex reclaimed land from the foreshore and seabed carte blanche after 10 years. Maori can be there for 1000 years and still have no rights in the eyes of the Crown. Maori have less rights than a foreigner who decided to bulldoze into the estuary so he can have a tennis court in 2001.

Maori have to go through a statute now to get recognition - according to Ben's excellent political bullshittery:First class stuff, but bullshit no less. It takes away the short-cut to avoid the costs and hassle and humiliation of the Court process. Because an order-in-council and ministerial nods are so bad...

But for Pakeha it's still only a Minister or an RMA peice of paperwork away from privatisation.

It is a shame that the Maori Party have connived: firstly, in agreeing to the draft as is with all the racism inherent in what is a confiscation/raupatu that looks to substantially legitimise the FSA; and secondly because they have done it through unfair bully tactics and tricks such as holding things back (like officials' advice) and then ramming everything through and cutting everyone off with preposterously short notice to avoid discussion and pre-empt a contrary view to National. Is that Maori Party kaupapa in action? Te Ururoa has questions to answer in how this has been handled and is intended to be handled.The minority reports lament the ridiculous rush - a couple of days to consider the official's 500 page report, one day to write their own reports - and the unseemly stampede by National and the Maori Party to get this re-hashed Foreshore and Seabed dog through the house.

Despite the semblence of balance the above recommendation on clause 105 will not be what it seems given how the rest of it looks.

Maori don't have to prove anything to anyone about what is theirs because they owned everything before the imposition of the Crown. The NZ government can't tell the story of their case by saying the mere act of signing the Treaty of Waitangi means Maori have consented to losing all their foreshore and seabed. We've had all the silly colonial arguments for presumptive Crown title chucked out via the Ngati Apa case that sparked all this.

The Crown pretends their warped, prejudicial and prescriptive statutes and regulations - interpreted through tikanga Pakeha in their own Courts - is an appropriate form of resolution to the confusion that exists on the part of the Crown and their clients as to what they own. It is the Crown that is claiming parts of the foreshore and seabed on behalf of non-Maori interests - and against Maori interests - that is what this is about. Once all the sweeping provisions the Crown has given to itself and its clients has peeled off, it is exposed for what it is: it comes down to a case by case basis - not for Maori - but for the non-Maori Crown-backed interests as to how they can prove their descrete claims are legitimate. But the NZ government can never contemplate doing anything like acknowledging it's own limitations, especially if that involves unlimiting Maori.

It's about the NZ government giving a free hand to the oil companies, to the mining companies, to the big utility and infrastructure companies, this bill is about trying to lock in the 80% confiscation of acquaculture space from Iwi, it is about speeding up the reclamation and privatisation of the coastline by developers. This is what it has always been about - not who can or can't have a fucking picnic on a beach.

When I read the thing in whole I will post again, but it does not look good. From the minority reports:

Labour Party minority view:

We are dismayed that the Government has now adopted a process which has
1 blocked any legal advice being obtained by the committee on the effect of the changes
to the threshold test for establishment of a customary marine title
2 forced through hasty consideration of the 500 page departmental report on
submissions which is dated Friday 4 February 2011 and was received and physically
delivered to committee members offices on Monday 7 February 2011 and received by
the Labour members on Tuesday 8 February. It was then dealt with by the committee
on 8 February 2011 inside two hours. This process gave Labour and other members no
time to properly deal with the many issues raised, some of which are technically
3 not included any revision track review of the bill in respect of any of the many
amendments recommended by officials, which also made proper consideration and
deliberation impossible. Government members blocked a resolution that a revision
tracked version be prepared prior to deliberation.
4 ignored the submissions of hundreds of submitters, whose submissions have had no
substantive analysis by the committee as evidenced by the fact that the select
committee is reporting back without comment on most issues and without a single
amendment, be it technical or substantive.
5 left many important technical issues unresolved.
Labour previously submitted to the review panel that the right to seek a remedy from the
Court should be restored, and remain of that view.
For the reasons we set out below, the bill ought not to proceed.

The Green Party is the closest to my submission:

Green Party minority view
The Green Party is opposed to this legislation in its entirety. We believe that this bill is
simply a blend of the Foreshore and Seabed Act 2004 and the Labour Government’s
negotiated agreement with Ngāti Porou. As a result the inherent injustices of the 2004 Act are not remedied at all with this new legislation.
The Green Party considers
* that the common law tests for customary title should not be codified
* the 2004 Act should be repealed and full and access to the Court restored
* Te Ture Whenua Maori Act 1993 should be amended to prevent foreshore and
seabed Māori customary land from being vested in any other form of title.
It is also our view that
1 there should be no saleable private and exclusive title granted over the foreshore and seabed to anyone, New Zealanders in general, tangata whenua, or overseas interests
2 Te Ture Whenua Maori Act be amended so that Māori customary foreshore and
seabed land must remain in Māori ownership
3 collective customary title to the foreshore and seabed is not to be extinguished by
4 public access should be protected, except for very special areas where environmental
protection, historical, cultural, or spiritual significance makes this inappropriate.
This bill extinguishes customary rights by operation of law, without the consent of the customary owners. This constitutes a confiscation. This bill simply replaces one unjust law with an equally unjust law.

An extract from Marine and Coastal Area (Takutai Moana) departmental report from the Ministry of Justice:

The following key issues were raised by submitters and are addressed, along with other issues, in this report:
General Issues
* submitters wanted more time to consider the issues
* there was little consensus on whether Foreshore and Seabed Act (the 2004 Act) should be
retained or repealed (and if repealed, what should replace the 2004 Act)
* how customary interests should be recognised, if at all

The fact is this bill just does the same as what the FSA 2004 did - confirms every bit of freehold "European" title in the foreshore and seabed as private, exclusive and tresspassable with no right of public access; and reiterates the NZ Crown's racist position that the traditional land owners in their own territory ought to have less rights in their own estate than a holder of a piece of paper which the government of the day may have granted to Europeans in the past and the sort which they will continue to grant to non-Maori in the future. It's called confiscation. Maori call it raupatu. There is no way this bill - as it is - can be durable because it continues an injustice. If it contains a confiscation it will never be accepted, it will have no validity, it will be unconstitutional.


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