Ngai Tahu overlord’s private-property threat casts pall over foreshore debate [updated]

NOW THAT A NATIONAL hui of 100 iwi representatives has rejected the Attorney-General's proposal to replace Crown ownership of the coastal area with a public domain that nobody owns, it’s apparent the government’s uncertainty and vacillation over the Foreshore and Seabed issue has now led it, and us, to a dangerous place.

Ngai Tahu chairman Mark Solomon said after the hui, "We refuse to forgo all of our rights and put our rights to the foreshore under the public domain, as long as there are still 12,500 titles sitting there, private titles to the foreshore. If you put them into the public domain, then iwi will have the discussion about putting all of our rights into the public domain."

Translation: Solomon and his friends will refuse to accept National’s sullied compromise on the foreshore unless already-established coastal property is nationalised.

A dangerous place indeed. And an unnecessary one.

FIRST OF ALL, SOLOMON is labouring under an illusion.  He and his Browntable have no recognised rights in any part of the foreshore.  Never did. Recall that what was extinguished when Helen Clark had her brain explosion over the Ngati Apa Marlborough decision was not Maori rights in the foreshore. What was extinguished was the common law right to lay a claim to those rights. It was their right to a day in court.  A common law court. Some iwi have a case to make there; so do some individuals.  But to assume that the case has already been made, and to use Helen Clark’s high-handedness (and John Key’s inability to make a decision) in order to smuggle in a title that is not yet granted to a claim that is not yet proven would be an annexation of which Joachim von Ribbentrop would have been proud.

Now don’t get me wrong.  I think every New Zealander should be entitled to go to court to make a common law claim to what’s theirs, Maoris no less than anyone else. Always have done. (You know, one law for all, and all that.) But let’s not let Solomon get away with putting his gravy cart before his horse here—particularly when’s using it to foster fear in owners of existing coastal property as a means by which to pressure the government.  Fear-fostering as a negotiating tactic, in other words.

SECOND, SOLOMON’S CITED HISTORY is both wrong and self-serving. He talks about long outstanding claims to reserves in Kaikoura, for instance, which claims he is loath to see extinguished. Frankly, he must think the government is stupid (and I think perhaps he is right). As Alan Everton said in The Free Radical back when Ngai Tahu were handed $170million of taxpayers’ money back in 1997,

“Ngai Tahu have been in the grievance game for about 130 years.  Before  that they were in the land-sale game for about 30 years.”

The rorts they themselves perpetrated in those first thirty have served as fuel for their rorts of the last 140.  In that respect nothing has changed. Indeed, the 250,000 acres encompassing those reserves in Kaikoura, which Solomon erroneously claims were “taken” illegally in 1859, were in fact sold by Ngai Tahu two times already prior by that date (with Kaikoura’s Ngai Tahu leader Kaikoura Whakatau being present at one of them), when Whakatau agreed to sell it a third time. And the unjustified claims over these reserves were just part of what came to fuel four "full and final" settlements between Crown and Ngai Tahu over the next 140 years, with the taxpayer picking up the tab for all of them. (I recommend Alan Everton’s three part 1997 article on ‘Ngai Tahu’s Tangled Web’ for the full story and more: Part One, Part Two, Part Three.)

BUT ALL THAT ASIDE, it’s now apparent that the Clayton’s solution of “public domain” proffered by the Attorney General just three months ago has served only to further muddy the waters of foreshore and seabed, while pushing back even further any chance of sense or clarity at all in the now-troubled debate.

Time to bite the bullet and do what I’ve been advocating now for more than six years:

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?”

Or needs to be.  Common law really is a beautifully uncomplicated thing.

UPDATE: Turns out that American Gardner said this all yesterday at the Roar Prawn blog.