Tuesday, November 03, 2009

Privatising the Foreshore & Seabed: Get on with it! [update 2]

Otago Daily Times: “Prime Minister John Key says the foreshore and seabed legislation will almost certainly be repealed, but no decision has been taken on what might replace it.”

WHY HAS NO DECISION YET been taken on what might replace it, I wonder?  Even though everyone and their kaumatua has been trying to complicate things, it’s not like it’s at all complicated.

When the Foreshore & Seabed Act is repealed, just leave it where it was at before.

And where it was at before was with Maori needing to prove to the courts that they possessed a common law property right in their portion of NZ’s foreshore & seabed.  And if they could prove such a right to a legal standard of proof, then why on earth should anyone object?

What could possibly be wrong with recognising the right of people to claim the property in which they have a right?

What could possibly be wrong with the protection of property in which people can prove that right, which is all that a repeal of the Foreshore and Seabed Act will do.

And that’s all there really is to it.  See how uncomplicated it really is?

There’s a few points to be made, however, just to round up the complications people see in this.

THERE’S TALK THAT REPEALING the Foreshore and Seabed Act will simply “give” Maori the beaches.  This is wrong in two respects.

First, repeal would (and should) simply mean that Maori have a right to make a claim to what is theirs, not to be given what is not.

Second, it doesn’t mean that all Maori are awarded a right to all beaches.  That’s like saying, if the roles were reversed somewhat, that all men should be awarded rights in all the country’s fishing spots, and all white women get to own the pavements outside all the clothes stores – which even my least favourite auntie would know was absurd. But it doesn’t mean that at all. In fact it’s more like saying that your favourite store might be able to have its rights in the pavement outside its own store recognised by the courts, should they be interested in such a thing.

In other words, repeal simply means (and should mean) that specific parties have to prove they possess specific rights in a specific piece of land, foreshore or seabed, which rights would then deserve to be recognised in law.

And like the rights in a High Street pavement, that needn’t preclude there being other rights and covenants attached that protect other rights, rights such as access and so on, so everyone’s rights in a piece of land, foreshore and seabed are protected.

Common law is a beautifully uncomplicated thing.

THERE’S TALK THAT RIGHTS should be made non-transferrable, and only awarded to iwi instead of individuals. Why?  Let’s put on our colour-blind spectacles for a moment and recognise that if Maori can prove they have genuine rights, then why should those rights be so circumscribed?  Why should individual Maori miss out?   Why shouldn’t rights be transferrable – which means they can be used as collateral to help the owners develop the resource -- and be saleable, so they can end up in the hands of those who value the resource the most?

THERE’S TALK THAT MAORI deserve the rights to foreshore and seabed as some sort of gift under the Treaty.  Nothing could be further from the truth.  They deserve the right to claim their rights  because, like every other New Zealander, they deserve to have their rights in property protected. But there’s the rub, isn’t it. There should be more than one race who has this right protected, shouldn’t there. You know, like One Law for All – which was what the Treaty actually brought to New Zealand.  Let’s use this as a call to arms for all property rights for all New Zealanders.

SO LET’S LOOK AT the real bright side here: If it’s done properly, repeal of the Foreshore & Seabed Act will be a fantastic step forward for property rights. Sure, if it’s done properly repeal will only take us back to how things were a few years ago, but there’s now so much more understanding of how a common law property right can be laid claim to than there was back then -- and there’s so much more support for the common law process by which it can be done. 

Crikey, even Green Party co-leader Metiria Turei thinks Maori should be given the right to seek common law title through the courts. Who would have thought we’d see the Greens supporting the privatisation of the commons.

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11 Comments:

Blogger Kiwiwit said...

Hallelujah! And while we're at it, let's do the same thing (revert to common law rights) for resource usage (i.e. abolish the RMA) and accident compensation, that would be great!

11/03/2009 01:31:00 pm  
Anonymous Anonymous said...

NotPC Look mate - the locals are not too enthusiastic about another 30 years of the likes of Scribble Face from To Hoi running amok claiming we own the seabed. There is one elephant in the room here, any oil reserves mineral deposits that "might be found" will be unfound much to the detriment of all New Zeland citizens, as all the troughies will be lining up with their fucking hands out again. We are going to all get screwed again, and again. I have brother-in-law troughies in Mouldie dum that are bloody pissing themselves laughing at the possiblities that this will unravel. It will not be to any benefit of NZ'ers at all, the likes of Shane Kawenata Bradbrook will be the benefactors of this rort!

11/03/2009 02:29:00 pm  
Blogger Owen McShane said...

One of the issues is what court shall determine the right.
The original decision which put the cat among the pigeons said that Maori should be able to take their claim to the Maori Land Court.
But given that this will be a claim with conflicting evidence and conflicting claims I believe it should go through the regular courts so that all affected parties can be represented. There could be provision for Maori Land Court judge to sit on the bench.

11/03/2009 03:43:00 pm  
Blogger PC said...

@Owen: "I believe it should go through the regular courts so that all affected parties can be represented."

Agreed.

Given the all round general agreement, I guess this isn't the time to say I think it's long past time that the Maori Land Court should be disbanded . . .

11/03/2009 03:49:00 pm  
Anonymous Barry said...

cannot see any major problems with Maori owning the foreshore and seabeds. If anything, they would probably be better owners and more environmentally conscious than the current system.

11/03/2009 05:29:00 pm  
Blogger KG said...

"SO LET’S LOOK AT the real bright side here: If it’s done properly, repeal of the Foreshore & Seabed Act will be a fantastic step forward for property rights."
For Maori.
It's naive to think the principle will be extended to whitey. And it's another nail in the coffin of "one law for all".

11/03/2009 06:34:00 pm  
Blogger PM of NZ said...

Not PC, With your analogy, what gives the shop owner any more rights to the publicly owned pavement?

11/03/2009 06:40:00 pm  
Anonymous mawm said...

Wouldn't it be wonderful if Maori were mature enough to realise how devisive the ownership of the foreshore and seabed is going to be and that for the development of a truely democratic New Zealand where the law applies equally to all, they were to signal that they seek a moral victory but would hand over the ownership to all New Zealanders.

11/03/2009 07:18:00 pm  
Anonymous Elijah Lineberry said...

I think the Maoris should get their day in Court, too; it would be hilarious if they won....

11/03/2009 08:26:00 pm  
Anonymous LGM said...

PM of NZ

"Publically owned pavement"?

You mean unowned. No-one in the public owns it.


LGM

11/04/2009 06:49:00 am  
Anonymous Sinner said...

they were to signal that they seek a moral victory but would hand over the ownership to all New Zealanders.

Of course not. Where they have done this (e.g. Mt Egmont, Mt Cook) it has generally been a disaster. Much better they were simply granted freehold title like everyone else, that they could actually exploit for their own economic benefit!

No-one in the public owns it.

Technically owned by the council, I think you'll find.
Certainly should be vested freehold in the council, then the council privatised as straightforward company, shares going to those who pay for them.

11/04/2009 12:28:00 pm  

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