Foreshore and Seabed issues aren't going away

So they're doing it again.

Anyone — anyone! — has the moral right to assert their ownership of something — and, under a common law system, they have the ability to go to court to try to prove that assertion. To make their claim. (Or try to.)

Common law recognises that not all legitimate claims to land or water use or ownership come as grants from a fictional entity called "the crown." Instead, it recognises the imperfection of that system, and allows claims to be made on occupation, on long use, on recognised practices.

Our common-law system however has been so buried by statute law that it's now hard to find it. And in recent years successive governments of both hues have been desperate to avoid anyone — anyone! — making any sort of common-law based claim of ownership.

That seems to go double for iwi.

The kerfuffle over foreshore and seabed began when Helen Clark rejected the right to Ngati Apa to go to court to try to assert its right to part of the Marlborough foreshore and seabed based on long use and occupation. She decided instead to nationalise it, trumping both court and claim. Ironically now, she sent out John Tamihere to sell the poisonous solution to unwilling Māori buyers.

Bear in mind Ngati Apa were simply arguing for the right to appear in court to try to make a claim. (As they and others of every hue were fully entitled to.) But that was enough for Clark.

The rights rort continued with the John Key Government's further politicisation of the foreshore and seabed, coming up with a bastardised replacement of the Clark Government's Foreshore and Seabed Act that tried to square an illegitimate circle.

Didn't work, said the Court of Appeal last year. Property rights remain legitimate even in the absence of government recognition, they suggested. And iwi, they agreed, are entitled the chance to claim legitimate rights in court (even if National's replacement Act bars full recognition).* And so the Luxon Government is now all a-scramble trying to keep the illegitimate cork in the bottle, acting to legislate away the court's decision.

It's not a good legal look.

Ironically (ironies abound here) the politician promoting the politically-expedient pre-emption, Paul Goldsmith, is a historian by profession. I can't help wondering how different New Zealand's history may have been if principled common law had won out over political expediency over the last one-hundred and eighty-five years.

We may be a different, and better. place for it.

* * * * 

* No Right Turn summarises the court decision, and National's (over) reaction: 

"The decision ... basically reinterpreted section 58 of National's Marine and Coastal Area (Takutai Moana) Act to make it consistent with its purpose clause and te Tiriti o Waitangi by allowing "shared exclusivity" according to tikanga. The upshot is that it would become significantly easier for iwi and hapū to gain customary marine title over their foresore and seabed - a fact confirmed in subsequent court decisions. National doesn't want that to happen - in fact, they don't want Māori to be able to gain customary title at all, despite what they promised Te Pāti Māori when they passed the law in 2011 - and so they plan to legislate it away (which they disguise as "restoring the intent of Parliament" - which is effectively an admission that they dealt in bad faith with their coalition partner in 2011). Of course, they're pitching this as being about beach access, like they always have, even though that is not and never was under threat. But they're quite open in the Herald about what its really about: protecting the aquaculture industry. So Māori rights are going to be sacrificed to protect National's donors and cronies. Which sounds just a little corrupt."

It does a bit, doesn't it.

As I've said before, when the Foreshore & Seabed Act was repealed, it should have just been left 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? Everyone, including divers, miners, aquaculture owners, and iwi.

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 could have done.

And that’s all there really is to it. See how uncomplicated it really is? Or could still be.