Thursday, 1 April 2010

Unsure foreshore solutions

AFTER MUCH BEHIND-DOORS backing and filling and log-rolling, the government and its apartheid party coalition partner have finally come up with solutions to the foreshore and seabed dilemma that still simmers as a result of Labour’s nationalisation.

In 2004, if you recall, Helen Clark unilaterally extinguished Maori rights to claim ownership in foreshore and seabed under common law and gave effect to the nationalisation in a hastily passed law, the Foreshore & Seabed Act.  And at the time National talked about amendments to the Act that would virtually cement it in place for all time. This was considered to be opposition.

But things have moved on. Helen Clark’s “haters and wreckers” are now ministers in a National cabinet.  And their blancmange Prime Minister has come up with the perfect blancmange solution--- a semantic one.

Make it all crown land, said Labour’s law; no, no, says National’s kick for touch, let’s call it “public domain.” And get the Maoris on side by calling this new legal concept of non-ownership "takiwā iwi whānui"—and get the lawyers onside by making the “roles and responsibilities” of the non-owners sufficiently vague that only decades of court case will be able to define precisely what it means.

But you don’t like that solution? Don’t worry, they’ve got others.

That’s right. Unable and unwilling to make a firm or principled decision themselves, they’ve put out a “discussion document” containing four proposed “solutions’ to see which get people worked up least. You don’t like “public domain”? Why, sire, why not try these three other flavours, including Crown ownership of everything, Maori ownership of everything other than the minerals- or the status quo, if too many people throw too many toys out of their cots.

Observe that in all four “solutions” the government retains all the mineral rights to foreshore and seabed.  That “iwi authorities“ will have “roles and responsibilities” akin to those of regional councils, and veto rights that (as Shane Jones points out) will invites "brownmail," where tribes receive cash from developers in return for their support. That the likes of non-Maori aquaculture operations have essentially just been told to take a long walk off a small pier. And that the well-recognised tragedy-of-the-commons continues to hover over all the areas over which no clear ownership rights and ownership interests are established like an unwelcome elephant at an otherwise elegant cocktail party.

And observe too that while in some of the four options there’s talk of “allowing” access to courts to prove rights to foreshore or seabed under common law (a right all citizens enjoyed under British law for centuries, until extinguished here by Helen Clark) it really is only talk.  Even the option of granting Maori “absolute title” is not granting title by right, but by fiat--and the “absolute title” to be granted under this solution is not to specific portions of foreshore and seabed to which specific owners my lay claim, but to all the foreshore and seabed not presently under private title, meaning that non-Maori lose whatever rights in common law they may have once been able to assert.

And since the ownership “rights” in any of these proffered solutions will be neither transferrable nor divisible, this means that any “ownership” granted is largely notional in any case.

So not so much just kicking for touch as taking away the ball under cover of turning on the lights.

It’s a series of Clayton’s “solution” by an Attorney General obviously well versed in semantic tricks—a solution that retains the body of nationalisation of foreshore and seabed, while transferring the shadow of ownership to the government and whichever Browntable groups are making the most noise.

FOR WHAT IT’S WORTH, my own view on the foreshore and seabed issue has been consistent now for at least six years, and is based on the common law principle that everyone, no matter their colour, has a right to claim ownership rights to un-owned property if the requisite common law tests are met. 

I see no reason to change that view now.

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