Takutai Moana Bill: final reading

The Takutai Moana/Common Marine and Coastal Area Bill will be read a third time this afternoon I understand. In the NZ parliamentary system there is just ten or so speeches to the final vote. If passed it will go to the G-G to sign. Then it will be the law.

A law, but one inconsistent and in breach of the letter and spirit of the Treaty. A law inconsistent with constitutional and human rights laws, and - in the words of Tariana Turia who has strapped them as a suicide vest to her Party's body - isn't 'fair just or moral' either.

It will be the law because it will be a statute with the signature of the NZ Governor-General. It won't be a law with Britain that signed the Treaty - it will never be part of British law. It won't be a law with the Iwi and Hapu who signed the Treaty either - it will never be a part of Maori law.

This law will end in a decision of Pakeha lawyers in a multi-million dollar egg shell in Wellington, not the Privy Council in London. This law is an instrument of the NZ government and is an act of hostility toward Maori by the NZ government in the same way that the original Foreshore and Seabed Act of 2004 was an act of hostility, in the same way every piece of legislation of this type is an act of hostility.

In English it is "confiscation" a term for the seizure of something valued off another by someone asserting authority or right to do so. In Te Reo Maori it is "raupatu," acquiring a territory by conquest. It seems that Maori gave up their raupatu rights, only to have it practised henceforth by a predatory colonial government down to the present day.

This law will be barely more than a restatement of the 2004 Act - the Prime Minister is comfortable describing it as such, as Michael Cullen v2.0, which is what it is: still an Englishman's view of what a Maori might expect to get out of English common law, ie. nothing or whatever is next to nothing. That is the agreement amongst the elders of the white folk, the people who operate the NZ government and its justice system. The same as all the other white folk in colonial regimes who use their own rules to strip native territory off their own supposed "citizens." Nowadays land rights are part of 'developing common law' and are manipulated by statute and other orders of the respective governments in an attempt to read down all notions of the inherent equality and worth and faculties of the indigenous people and attempt to twist and thwart native populations and their forms of authority.

It comes down to this: If a white man touches it, he has a cause of action under common law to claim it is his by way of use and that in itself ought to be enough to extinguish all Maori rights to it. That is what this bill is about (sec. 60 and 61) and that is why Maori are aghast appalled and angry, and why non-Maori are uninterested, ambivalent or in agreement. The effect is to cancel Maori ownership and upon that non-property the NZ government (on behalf of the white folk in whose interests the NZ government was established) can then create their own property out of it according to their own rules. Maori in the meantime get the rights only a patronising Englishman could come up with - a right to launch waka and gather hangi stones.

New Zealand is a white man's country for the white man. When the Prime Minister and seemingly every other politician says the test for Maori customary title should be high and tough and difficult to establish what they mean is that extinguishing Maori property rights should have a low test and be an easy thing to do. Maori are not accepted for being Maori in their own land. This bill is nothing more than Pakeha making Maori jump through their hoops and perform their tricks before they can get a fraction of what they already had. It is a sickening position.

This bill and the 2004 Act is the same type as all the other acts of the Crown and NZ government from this bill to the first land claims commissions of the 1840s that used outside claims lodged against Maori land as a cause to seize that land without consent or compensation. Every confiscation scheme of the NZ government and their instruments are the same. If they want to steal Maori land on any scale (and sell it off and take for itself under any number of guises) then they have to define a general area (on an arbitrary basis), and then define a confiscation area within the general area (on a more specific basis). All confiscation follows the same administrative pattern: The confiscation/evacuation/declaration of War from Gov. Grey in 1863 defined the general area to "the waters of the Waitemata" for example and then defined the confiscation areas within that. This bill - as the 2004 Act did - defines the general area as the high water to the territorial sea, then defines the confiscation area as the general area minus private freehold interests and Crown interests. The confiscated parts are available for immediate issuance of title to private individuals/Pakeha who have full rights of title and rights to compensation and recourse to justice; the Maori parts reserved or claimed are given a lesser status and subject to other private and Crown interests and indeed all of the public, and will be subject to further confiscation without consent or compensation. This is the pattern with all the big confiscations.

When Don Brash snuck down to the beaches with his NZ flag to reclaim them, will that count toward extinguishment of Maori customary title? Will John Banks' frollicking on his Jet Ski in Hobson Bay extinguish Ngati Whatua title? Under the bill it's a moot point, at the part to exclude these activities from consideration they do not, nor do they exclude unlawful activities as being an act of extinguishment of Maori rights either. That's quite deliberate - they want everything to count against Maori so the government's court case of extinguishing the rights is massively stacked in the government's favour. The bill says it is to be determined in the High Court, not the Maori Land Court, so already the rigging has begun by the Crown. And then there are the obstacles on the ground.

Does the Auckland Harbour Board Act 1875 that vested large sections of the bed of the Waitemata Harbour in the board (which itself is extinguished) of itself extinguish a customary title? Does the title persist? The Crown's titles certainly seem to persist don't they. Just keep going, still on the statute books all these vesting orders, even if they don't need to, its just convenience and the preservation of the government's full control. They also act to cut off and keep in abayance Maori claims.

The concept of customary title is governed by this bill. So when it says at section 60 in the third and last part of the description of what defines this "customary marine title" - this shadow of a land interest prone to the rapine of government and private seizure - that it may not exist at all "in fact of law", then the bill is more Russian roulette than legal remedy. Meaning if the prohibitive tests they have thrown up in the bill negate the possibility of exclusivity - and pending the outcome of other colonial jurisdictions hostile to native rights with their white judiciaries like Canada and Australia informing the NZ courts' thinking - then customary title as a concept is still very much in doubt. The concept that Maori may have any claim or right of title is in doubt. Rather than affirm customary title the Crown has done the exact opposite: built a self-destruct button into the bill and are leading the courts to it. And then there will be nothing.