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Otago Daily Times: “Prime Minister John Key says the foreshore and seabed legislation will almost certainly be repealed, but no decision has been taken on what might replace it.”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When the Foreshore & Seabed Act is repealed, just leave it where it was at before.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.

UPDATE 1: Speaking of “better than they were before,” on this issue at least a simple repeal would be far better than what Don Brash was proposing back in the day, as I said the day after in one of my first posts here at NOT PC. Back then, both major parties were offering the false dichotomy summarised in the famous billboard:

As I said in that post, “both [the Clark] Government and the National opposition favoured nationalisation instead of common law recognition of property rights -- an unfortunate irony, and an unjust one.”

 

How things have changed in four years.

 

UPDATE 2: Russell Brown updates everyone on the he-said she-said shemozzle of what everyone was saying back in 2003, which was pretty much about-faces all round.

 

I’m pleased to say that by June 2004 at least the Libertarianz party was front and centre arguing that this was a clear property rights issue, and that Maori deserved the right to get their day in court. 

 

And, credit where it’s due, it was Russell Brown who persuaded me of that back in 2003 when we were chewing the fat in the ‘green room’ before an episode of ‘Off the Wire.’