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Wednesday, May 29, 2013

Ikaroa-Rawhiti by-election: Foreshore and seabed test

Part of the reason Parekura Horomia was able to hang on to his seat after he backed the Labour leadership's shameful and unconstitutional foreshore and seabed confiscation in 2004 was that his Ngati Porou supporters trusted him to work around the legislation for them. That was done by way of a bill to recognise the tribe's rights over their East Cape stretch of the coast. The tribe have supported the NZ government - often against other tribes - and could expect more than other Iwi. The government could be expected to give that support because the Iwi's territory is isolated, the Tangata Whenua are in the majority of the population, and the area is of limited economic value - in other words they do not pose a threat to the Crown. Fair for Ngati Porou, but unfair to every other tribe not in that advantageous geo-political circumstance.

In the spending frenzy that marked the last days of the fifth Labour government the Crown signed off on a settlement with them and also for the introduction of a bill: Ngā Rohe Moana o Ngā Hapū o Ngāti Porou Bill. The Bill is yet to be read a first time.

In between then and now the National government passed the Marine and Coastal Area (Takutai Moana) Act 2011 with the Maori Party having the bill hijacked off them and basically letting the National Party and the Pakeha officials write the law they wanted it - which effectively just re-stated the Foreshore and Seabed Act, but this time the wording opens up the court to decide that Maori have no customary rights. This is incredibly dangerous and the Maori Party should never have acquiesced to this possibility. Today's announcement from Finlayson will be in some ways a part of Horomia's legacy as it is part of the Maori Party's legacy.

NZ government:
Public information sought for East Coast customary marine title enquiry 

The Office of Treaty Settlements is seeking information from the public on their use of parts of the common marine and coastal area (CMCA) on the East Coast, to assist with an enquiry into the existence of customary marine title under the Marine and Coastal Area Act, Treaty of Waitangi Negotiations Minister Christopher Finlayson said today.
The Office is collecting information from the recreational users, commercial operators and the general public, and public records of occupancy and use back to 1840. Te Runanganui O Ngāti Porou is also gathering information about its members’ traditional use of the coastal and marine area.
The Marine and Coastal Area Act sets out a process for determining customary marine title. Customary marine title recognises rights and interests which have existed since 1840 in parts of the marine and coastal area, and does not affect public access, fishing or navigation.
It is a factual enquiry, and is not a negotiation between the Crown and iwi.
The Minister has appointed former High Court Judge, Dame Justice Judith Potter, as an Independent Assessor. The Independent Assessor will provide a non-binding, independent, expert view as to whether the Crown may be satisfied the applicant group meets the requirements in the Act based on the evidence provided to her.
Under the Act, the Minister makes a determination on whether customary marine title or protected customary rights exist in an application area based on whether the evidence demonstrates an applicant group meets the tests laid out in the Act.
The Office of Treaty Settlements would like to hear from members of the public who use any parts of the common marine and coastal area along the East Coast from Potikirua (West of Lottin Point) to the Pouawa Stream, out to three nautical miles offshore.

There will be up to two open days in Gisborne to discuss the enquiry:
Monday 10 June, 12-7pm at the Emerald Hotel; and
Monday 24 June (subject to demand), 12-7pm at the Emerald Hotel.

The problem with the Marine and Confiscation Area Act is that it sets arbitrarily created criteria for customary rights (and lets open the possibility there aren't any at all) and lets in any Tom, Dick, or Harry to cut across those rights and supposedly allows them to extinguish the pre-existing customary rights just on the mere fact they may have also used the same area. This is the white man's law in action. This is why Judge Potter's role is so important and will set a precedent.

With the Iwi having the strongest "claim" under the Act going first it provides the best platform for having Maori rights recognised, but at what thresholds? The process may be judicial in this aspect, however the process is defined by the legislation, so whatever the outcome it may not be satisfactory. As you can see by the public hearings this falls right in the heat of the by-election campaign, so it inevitably will become an issue.


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