Tuesday, February 15, 2011

Maori Party panui - keeping our promise

I dislike being negative about the maori party - hell I voted for them and have supported them and specifically Pita and Tariana from nasty attacks - on The Standard for instance.

I have recieved a panui from them about their position on the alternative to the Foreshore and Seabed Act.

In the interests of fairness I'm going to put most of it up, and in the interests of brevity I'm pulling all the bullet points into paragraghs
Keeping our Promise - Marine and Coastal Areas (Takutai Moana) Bill
Tena koe marty, nga mihi nui ki a koe - We made a promise during the 2008 elections to repeal the 2004 Foreshore and Seabed Act and restore access to the courts. When we entered into a relationship with the National Party, our promise became a milestone in that agreement. That milestone has been a key priority of our work in Parliament over the last 18 months. The Bill, which delivers on our promise, is at a crucial stage and the public has been bombarded with negative messaging that has gained traction. marty, we hope you will be able to take the time to read through the points we make below. It is imperative that our constituents get information directly from the Maori Party that is not skewed with misinformation but instead focuses on what the Bill is trying to achieve and what outcomes there will be for tangata whenua and all New Zealanders.
Kia ora.
Abolishes Crown title and recognises customary interests (mana tuku iho) of all coastal iwi. Customary interests include a right to protect wahi tapu; and a right to be consulted on conservation and resource management. Allows iwi to claim customary title. Customary title is a property right that includes customary interests plus all minerals except gold, silver, uranium and petroleum; all newly found taonga tuturu, development rights, and a right to develop a plan which regional councils must recognise and provide for. Restores the right of access to court. If negotiations with Ministers do not reach agreement, tangata whenua can take their title claims to court. The Crown has to prove customary rights were extinguished, not iwi.
To turn our back on this Bill, would be to break the promise we made to our people in 2005. If the Bill isn't passed, the law that deprived our people of their day in court, of their mana moana will remain in force. Is this what the people want? Is this why we marched? The Bill does not give us everything we wanted, but it is a step forward. If others have a better plan for repealing the FSSB Act, let's see it. The Bill reopens the door that was slammed shut in 2004, and allows tangata whenua to have a longer discussion on customary rights. The Bill does not settle the issues, but it keeps them alive. The Maori Party can advocate for customary rights and tikanga, in the Bill, but only tangata whenua can negotiate and settle matters of mana tuku iho. The decision to support or oppose the Bill is a matter of strategy: do we take a step forward, knowing we still have a long way to go? Or do we retire from the battlefield, and try to rejoin the fray some time in the future? That is the choice facing Maori people, and we will be guided by them.
The Attorney General will be recommending the House amends the Bill to require any recognition of customary title through negotiated agreement be given effect through legislation. This means that every such agreement will be subject to full Parliamentary and public scrutiny. This will dispel any concerns about future governments doing shoddy deals.
There are some frequently asked questions and answers like these ones
Can the Government decline customary title over lands that have been confiscated?
If an iwi is declined title, it will not be because their land was confiscated, so no the Government and Court can not decline title solely on the basis of confiscation. Iwi who have had their land confiscated are still eligible to claim customary title.
Why can't we just repeal the Seabed and Foreshore 2004 Act and create a Marine and Coastal Bill to replace the 2004 Act with conditions that are more acceptable to Maori?
Repealing the Act but not replacing it will cause uncertainty and the law cannot allow uncertainty. Therefore Parliament cannot repeal the Act without replacing it with legislation.
Can a moratorium be placed on mining licences that affect the foreshore and seabed?
The Maori Party asked for this but the Government declined it.
I'm not going to fisk this but let it stand as is.

It is interesting to read their framing of the debate - accept what we can and fight for more another day, if you've got any better ideas then lets hear them and so on. Unfortunately my opinion has not changed and I am opposed to this Bill and amongst my reasons for opposing it are the impossible (see good comment from BB in comments) hurdle of actually getting awarded customary title, and the legislation solidifies maori rights as inferior to private owner rights.

The maori party have said they will abide by the wishes of the people "we will be guided by them" (the people) - now the battle for those wishes is engaged in earnest.

Aroha mai for all the crossing out but I decided when I started the blog that I would stand by what I write and not delete.


euminedes said...

here is a clear and unequivocal example of where the test will be easy - the titi islands and Ruapuke. thats for starters and Rabbit Island and probably the Neck on Stewart Island. A very well known Ngai Porou lawyer suggested that there would be absolutely no probs with the titi islands passing the test.

Marty Mars said...

That's great news - I hope there are many more.

Anonymous said...

oh dear,

what BB describes as a clear and unequivocable example (as relayed to her by the well known Ngati Porou lawyer) is exactly why those who both understand the proposed legislation and the history of the titi islands know this law to be a crock of sh#t and it is getting worse by the day.

the titi islands fail the uninterupted title test as all transferred to Crown ownership at the time of the Rakiura purchase. notwithstanding that, they may scrape and scratch and make it over the hurdle at which point the Crown will work out what rights might be granted (very limited and much less than pre-2004 options) and then Parliament is now to ratify the agreement

BB's mokopuna may live to see the sham through to its conclusion if they have the motivation to spend their time and energy on it.

however, BB should also know that it is the view of the current attorney general that because of the Ngai Tahu settlement that we, presumably along with all other settled iwi, will be totally disqualified from even running the argument.

I note that Ngati Porou were happy with the 2004 Act - this Bill is not materially better and in some instances is materially worse - being allowed to go to Court under this Bill is an expensive meaningless farce for the majority of iwi - I also note, that despite the Ngati Porou happiness they were simply run down by the government when a drilling permit was issued in their space - but that is another story

Ngai Tahu has the longest coastline of any iwi and, if we can set aside the attorney generals argument that the settlement prevents us from being eligible to start the process, there will be a very few discrete instances our whanau may be able to make it over the threshold (if they can afford the process to get there) however the benefits of doing so make the whole thing a farce

this is the modern day version of shiny plastic beads and smallpox ridden blankets and the maori party and the well known lawyer from ngati porou should be ashamed of trying to get our people to sign up

Morgan Godfery said...

Kia ora Marty,

Thanks for writing about this.

On the surface it all appears fairly mundane, typical political material really. However, there appear to be a number of misleading statements, mistruths if you will, that I have addressed at Maui St.


I initially intended to address them here in the comments section but it got a little out of hand.

For me, and most Maori for that matter, the primary problem with the MCA bill is the test to determine whether customary title exists. The notion of continuous and uninterrupted use is anathema to Maori values. For Maori it is culturally unacceptable to just exclude people because you 'own' something. That is such a foul Pakeha notion.

This bill is a joke.

Anonymous said...

Dear Anon, Feb 16, 2011, 10:12AM

There is no "uninterupted title test" in the Marine and Coastal Area Bill. The test is exclusive use and occupation. It will be a difficult test to meet, but let's not pretend that, if the 2004 Act wasn't imposed, customary title would be easy to obtain through the Courts or that anything other than "a few discrete areas" would be customary title. If the Titi Islands and Ruapuke have been exclusively used and occupied by Maori, then these are examples of the test being satisfied.

As to the Crown working out "what rights might be granted", in contrast to the 2004 Act, the Bill actually sets out these rights (or will, if enacted).

Do you have a reference for the Attorney-General saying "settled iwi" are to be excluded from negotiations or from applying to the High Court for customary marine title?

Your comment that Ngati Porou were "happy" with the 2004 Act is, at best and most favourable, wrong. You should probably do some reading, for example the Ngati Porou Foreshore and Seabed Deed records Ngati Porou's continued opposition to the 2004 Act. Given Ngati Porou's likely successes in obtaining customary title following Ngati Apa, the 2004 Act probably bit harder on them than almost any other iwi.

Anonymous said...

Factors relevant to whether customary marine title exists
(1) Factors that may be taken into account in determining whether customary marine title exists in a specified part of the common marine and coastal area include—

(a) whether the applicant group or any of its members—

(i) own land abutting all or part of the specified area and have done so, without substantial interruption, from 1840 to the present day:

(ii) exercise non-commercial customary fishing rights in the specified area, and have done so from 1840 to the present day; and

(b) if paragraph (a) applies, the extent to which there has been such ownership or exercise of fishing rights in the specified area.

This is in essence what is known as the continuous contiguous title test that was set aside by the Ngati Apa decision but which has come back somewhat modified and we are told "don't worry" because the Crown is so well known for acting in good faith as far as Maori are concerned.

Read the Bill - the first half is decicated to protecting this interest and that interest and this right and that right - all very clear - pakaha interests and rights are sacrosanct - then we get to the Maori bits - and it is if you pass this test - jump though this hoop we might get to a place where we might be able to agree you have some interests and we might allow you to have a bit of a say on some things

it is a farce and maori will be no better off than under the 2004 Act and still worse off than pre-2004 Act.

takutaimoana4sure said...

Oppose the Marine & Coastal Bill

click on to this link


(as the saying goes -Beware - a wolf in sheep's clothing )