Awright, awright, that was pretty humourless of me on a Friday.

L

Ohhhhhh! Where lolz cat when you need one?

“No I iz not snarkeez!”

A bit like me talking about the two Swiss arseholes that ripped off my rent money many years ago – absolutely factually correct, and only like to give offence to a wider Swiss public in the event that it were already primed with an underlying anti-kiwi racism itching for an excuse to lash out.

L

Why does it necessarily have to be this way?

I see this dispute as an opportunity to rectify an idiotic system of property rights on behalf of all people. I don’t see why customary use rights should not exist for everyone, and tribal rights be recognized as a particular case of those.

Who doesn’t hate some corporation buying up a swathe of property and wrecking the local community’s favourite fishing spot?

Customary rights should be available to anyone.

Just to complicate things (or maybe gain a fresh perspective), does anyone know exactly how much foreshore and/or seabed is currently owned – lock stock and barrel – by non-Maori?

I recall from many moons ago private property signs as I pulled up to moor at Durville Isand for example, and know of other areas – albeit caused by erosion, reportedly.

Did any of these owners face any problems and/or public/media angst?

I have always defended the position we are a multi-cultural society in a bi-cultural nation.

The problem with your entire argument is it does not take into account the evolving nature of what constitutes indigenous, preferring a static model that fails to recognise the dynamic nature of society.

This is an interesting postmodernist position from one who usually scorns such things. The model I use doesn’t exclude evolving definitions of indigeneity, but it does insist that customary definitions of indigeneity are properly recognised and accounted for before new definitions are introduced. The reason for this is that expansion of the definition to include, for example, Trevor Mallard’s ‘I was born in Wainuiomata, so I’m indigenous” (and his unspoken “and therefore I deserve all the same rights as tangata whenua”) ignores the simple facts of NZ’s colonisation and stretches the definition beyond usefulness. This is what postcolonialism is about: resolve the existing problems between colonisers and colonised so that colonisers can become indigenous.

But beyond that, my point is that the claims by tangata whenua to the foreshore and seabed and other treasures do not solely rest on indigeneity, but also rests upon the Treaty and its provisions. We, each of us, live with the consequences of our ancestors’ actions, and the actions of the governments which represented them. That means all tau iwi coming to this country are bound by the Crown’s undertakings in the Treaty, whether they think they should be or not.

MikeNZ, that last bit is to you as well. You might think things belong to ‘all New Zealanders’ but in fact there’s very little which does, and all of that — every square inch of ground, every gallon of water — has been alientated from tangata whenua in some way. They had rights to it before the Crown did, and before you or I did. If you have rights to something those rights don’t just disappear — they’re traded away willingly or taken by force or both. ‘Both’ is the case in NZ. That doesn’t mean that what the Crown does own is illegitimate — plenty of resources were sold fair and square, plenty was gifted, or possession lapsed for other reasons. The Waitangi Tribunal process is a programme of legitimising alienation of resources and providing redress such that those whose resources were alienated are satisfied with the final outcome.

I can’t just turn up to your family farm and claim a stake in it just by being there or on the grounds that I’m a Kiwi too — you’d chase me away with a shotgun and you’d be justified in doing so. That’s precisely what you’re trying to do by claiming the Stephenses and the Chins have rights to the Rawiri’s rights and resources secured in the name of their ancestors before either of the other groups arrived. The signatories to the Treaty made an agreement that, instead of chasing each other around with muskets, they’d compromise and try to live peaceably together. It didn’t work out that way and there was a lot of musket-play in any case, but the agreement was not nullified as a result, and remains in force. You might not like that, but it is a principle which has been repeatedly reaffirmed in law, a foundational tenet of NZ’s constitutional practice.

L

The post-colonial issues are so much like NZ but different enough to challange. I think it’s one of the few countries whose experience is similar enough to ours to provide a useful mirror and yet it hardly gets a mention.

Not a cheap place to visit but it really does help to shed some light on what’s happening here.

I can’t accept that.
We are a multi-cutural society not bi-cultural and all who are citizens own the crown.
The Maori are not separate from the crown any more than you and I as they are Kiwis.

So much to do with the history of the British Isles is about land and the appropriation there of via colonialism that maybe the histories of communties that were more to do with the foreshore have been overlooked.

Both the Irish and my the Scotts talk about the “land” clearances and that became a focus here on NZ.

My instinct is that you’re right — we’ll get something which looks very much like the FSA but which contains key concessions agreed between tangata whenua and the general tau iwi public. And that’s as it should be — the critical thing is that the solution be arrived at by consultation and good-faith negotiation; by consent, rather than by legislative fiat.

L

Ultimately what will happen will be primarily an upholding of this public domain, but with some areas recognised as operating with a continuing tradition – both predating (indigenous) the Treaty AND also accounted for within it (cultural taonga). The co-existence of public domain with this “other” factor meant the Crown being specified in the the F and S (the Crown is merely representative of the management of the public domain, the people equal before the law of the nation) was the mistake (Winston was wrong and Labour was forced into the choice of dependence on this wrong man by National’s politics). For of course some rights (such as property and taonga) are privately held.

It should be clear that I don’t think Labour’s claim to being the party of Māori has much merit (although it once did); my comment is really a critique of Labour’s assumption that because lots of Māori voted for them and they had an ongoing agreement with Ratana, they could do as they pleased.

MikeNZ,

We all own the Seabed and foreshore (who are citizens) equally together and the govt administers it on our behalf.
That they can instruct someone to do so other than a ministry is within their power assuming we agreed.
That doesn’t change the position that all Kiwi citizens own it equally collectively.

This roughly describes the status of the takutai moana post-FSA — although, I might add, not entirely, since there are some parts of it owned and controlled exclusively by private interests. You’re right in saying that the government of the day can assign the task of managing that resource to anyone and that that doesn’t change the ownership, but what you’re missing is that the government can also change the ownership with the simple passage of a bill. The foreshore and seabed came to be in public ownership after the Crown expropriated it from people who had a legitimate legal claim to test because the risk of them succeeding in that claim was politically untenable. This was unacceptable to a large enough proportion of the electorate that we now have a new government with a mandate to rectify the situation. That’s the deal with government ownership. But the strategic purpose of all those who have a genuine concern about the status of the foreshore and seabed isn’t to play capture the flag with it, changing the scheme every three years on whim, but to forge an enduring accord as to its status. This looks increasingly likely to be a mutual-second-best solution.

I reject completely the concept of indigenous people having superior rights before other peoples or ethnos.
Hence the Tangata Whenua that so many espouse.

They don’t have superior rights by dint of being indigenous: they have pre-eminence guaranteed by a Treaty between sovereign powers as a consideration for other rights granted and guaranteed in exchange. Put very plainly, the Treaty of Waitangi was the only thing between Hobson’s settlers and twenty times their number of well-armed, well-supplied, ruthless warriors who controlled every inch of the place. It was the only legal instrument which gave settlers any rights at all. If the crown hadn’t wanted to guarantee tangata whenua the rights accorded by the Treaty of Waitangi, they needn’t have offered it. But they did, and those groups to whom those rights were guaranteed are now entitled to insist on their due. Hobson didn’t write an expiry clause in, after all.

We are all equal citizens no matter how our forebears (if any) got here or the manner that they did.

This is true. Again: rights don’t accrue to tangata whenua because they’re tangata whenua; they accrue because of a quite specific agreement which guaranteed them, among other things, rights to ‘tāonga katoa’, translated in English as ‘lands and possessions’ and basically meaning ‘all that you value’. The claim iwi and hapū make to the foreshore and seabed now isn’t some airy idea of special privileges; it’s access to resources of value passed down through generations. This is why it accrues at the hapū (family) level, not at the iwi (tribe) level. Do you really think that people shouldn’t be able to pass on their lands and possessions (not to mention their family traditions and language and so on) to their descendants?

My position is that Mr and Mrs Chin from China who’ve been here 4 yrs and the Stephens who’ve been here since 1928 and the Rawiti’s who’s family were on the 3rd Waka are all equal citizens as long as they carry the NZ passport.

Indeed. But do Mr and Mrs Chin gain an entitlement to the lands and possessions of Mr and Mrs Stephens or Mr and Mrs Rawiri by virtue of that equality? Do they get to share in the benefits of an agreement which favours the Rawiris before they arrived just because ‘we’re all equal now’? Does the agreement made by the Rawiris suddenly lapse because some new people are in the picture, or because it’s now somewhat tricky to maintain? And if so, what consideration is due the Rawiris for that agreement lapsing?

If you believe in standing by one’s agreements you can’t just unilaterally decide one has no currency — you can’t just decide to stop paying your mortgage and expect your house to not be sold from under you; you can’t just cheat on your spouse and expect them to not leave you. I say to you, as I’ve said to plenty of others: if you find the terms of the treaty too onerous, your recourse is to offer the signatories’ descendants whatever inducements you can to abandon those terms and adopt new ones.

And it looks like that’s what the government has in mind: offering tangata whenua something in exchange for their right to test their claim of ownership in the courts.

The Treaty of Waitangi does not negate that

You’ve got it around the wrong way: The Treaty precedes the rights of citizens. Their right to equality does not negate the Treaty of Waitangi.

Neil,

Absolutely. Their discourse reeks of entitlement.

Eoipso,

If I can muddy the waters even more for you Lew.

Heh, I see what you did there.

The idea of Foreshore and Seabed ownership arrived much later, for both parties.

You’re right about there not being a colonial concept of foreshore and seabed ownership, but quite wrong that such concepts weren’t in use by tangata whenua. In the Muriwhenua claim (Wai 22) the Waitangi Tribunal found that

The Tribunal, which heard detailed evidence on that particular district, concluded that there was an ‘inner’ zone related to the continental shelf, stretching 12 miles out from shore. The hapū and tribes of Muriwhenua had full control over fishing and passage inside that zone. They claimed the same rights further out, but only insofar as they could be enforced against challengers. In
the ‘Māori idiom the hapū and tribes of Muriwhenua held the “mana” or “authority” of the whole of the Muriwhenua seas’ within a minimum of the 12-mile zone. The nearest British cultural equivalent, the Tribunal found, ‘is to consider that they exercised “dominion” over that part, or “owned” it as part of their territorial waters’. We accept this view that Māori tribes had dominion over their territorial waters as at 1840, and that in the particular circumstances of the Muriwhenua district, it extended for at least 12 miles out to sea.

There’s also a very great deal of contemporary evidence that particular pipi beds, reefs and other undersea resources were considered the possessions of particular hapū.

L

“I remember when Labour was on 14% and if NZ First did what it promised then five months later we would have been in government.”

http://blog.labour.org.nz/index.php/2009/11/03/chopper-for-the-chop-tolley-to-go/comment-page-1/#comment-16312

Indeed. How Labour longs for the good old days when that racist Peters kept them in power.

The initial land purchase of Auckland by George Clarke from Ngatiwhatua in 1840, was a triangular block, extending along the foreshore from Hobson Bay to Cox’s Creek and inland to Mt Eden. At the time, the English officials had no cultural recognition of foreshore and seabed ownership.

The idea of Foreshore and Seabed ownership arrived much later, for both parties.