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False mean

datePosted on 18:24, February 11th, 2010 by Lew

I never get tired of this cartoon. It reminds me what being a Sensible Moderate™ is not at all about.

The latest proposal for the foreshore and seabed is PC gone mad — put it in the public domain, but not really the public domain per se, and everyone’s happy. Or not unhappy. Hopefully. And if they are, they’re just being unreasonable.

It’s blending half the kittens in order to avoid tackling the complex and painful political and historical problem which the issue represents. It’s the cop-out option which aims to offend nobody, but really only achieves that goal on the surface. It’s like a butchered mihi delivered by someone who’s not really well-meaning but wants to appear so, ignorant of the fact that wairua matters.

This has Peter Dunne’s fingerprints all over it, and he’s the one tying himself in verbal and conceptual knots: “no one owns it but we all own it and so therefore we all have an interest in it”. The unnamed sources are no better, arguing that since there are no rights, “everyone’s rights are protected.” You couldn’t make this up.

The trouble is that Māori — and the māori party in particular — don’t just want everyone to get along; they want their historical claims to the takutai moana tested and upheld, or negotiated to mutual satisfaction. This will necessarily include some positive determination as to the ownership status of those stretches of land and sea, from which will derive other rights — to development, to exercise kaitiakitanga, and so on — which can and should be negotiated on the merits of the original determination. This proposal commits a similar legal fallacy to the Foreshore and Seabed Act, in reversing the legal test as to customary title. Prior to the FSA all land was presumed to be in customary ownership unless alienation could be proven — the FSA reversed this, forcing claimants to prove that their rights to the foreshore and seabed had not been alienated. To be satisfactory to Māori, any resolution must address this change, and either provide recourse to that pre-existing legal framework, or a negotiated framework which satisfies all parties. Māori don’t want a Clayton’s solution in which they gain nothing except by losing slightly less than the Foreshore and Seabed Act took away, while things literally do not change for Pākehā.

Let me be clear, though: I don’t so much mind the function of the proposal as its justification. I prefer Hone Harawira’s proposal — full customary title, inalienable, with guaranteed access for all New Zealanders in perpetuity — but recognise that this is probably too ambitious in reality. A solution which mimics public domain in function while resolving the question of customary title could work. But this isn’t such a proposal. There is no short-cut, no easy way out of this. It’s time for both major parties to stop avoiding this fact, and face up to the responsibilities — and the opportunities — these historical times present.

Update: Yikes, even Marty G sort-of agrees with me!


31 Responses to “False mean”

  1. Pablo on February 11th, 2010 at 18:52

    Lew: You are on a roll, so keep it up.

  2. Tom Semmens on February 11th, 2010 at 21:22

    Pakeha New Zealand – you know, that 80% of the country you seem to think should be excluded from this conversation – will not tolerate Maori getting ownership of the foreshore and seabed. Access to the beach is perhaps the first natively “New Zealand” (as in the country of New Zealand that signed up to the Statute of Westminster in 1947) common law right.

    Hone’s proposal is the thin end of the wedge. Anyone with eyes to see now knows the Maori party is just a front for a reactionary, anti-democratic and grasping tribalism. Anyone with a half a brain knows that once full title is granted the access “guarantee” won’t be worth the paper it is written on.

    People will tolerate the government contolling the foreshore and seabed because they vote for them. In elections. I don’t recall voting for the local Iwi, and I’ll be buggered if I’m going to let anyone I can’t vote out having any say on access to the foreshore and seabed.

    The brown fat cats of this shadowy “Iwi Leadership Group” that the Maori Party represents want ownership so they can charge for it. Any fool should be able work that out. They won’t settle for anything less. Pakeha won’t tolerate that happening.

    Clark understood this. Key is about to work it out for himself.

  3. Lew on February 11th, 2010 at 23:24


    I’m not talking about excluding anyone. By defending the expropriation of resources or the denial of due process based on a majoritarian rationale, you’re the one taking an exclusionary position. I’m saying Pākehā and to a lesser extent other tau iwi groups must be party to any resolution if it is to be durable. You’re assuming that simply excluding Māori will make the problem go away. Look how well that’s worked so far.

    For another thing, your figures are faulty. You generalise about the views of Pākehā as if it is a homogeneous bloc. Perhaps this seems fair enough, since I’ve done the same about Māori, but there’s a crucial difference: the Māori population is identifying more strongly with tino rangatiratanga issues, while the Pākehā population is coming to more readily accept them. The type of distrust and race war mentality you describe among Pākehā is strongly correlated with advancing age, and as a consequence it is dying out. You appear to have been otherwise indoctrinated, but kids brought up during and since the Māori cultural renaissance are growing up with biculturalism as an aspirational norm. It is a matter of their identity, as much as bigotry of one kind or another is for many of their (grand)parents’s generations. Those generations — the Greatest Generation, as demographers termed them, and the Baby Boomers which followed — are in relative decline; the Greatest are now few in number and exercise little social influence, and the Baby Boomers are due to be outnumbered by Generations X and Y sometime in the next half-decade. Not only that, but the effect of the Māori strategy of resolving the historical problems of the nation in its bedrooms means that more and more New Zealanders will be Māori, or will consider themselves to be Māori. How do those odds look now?

    You have swallowed the “iwi/kiwi” argument hook, line and sinker — and swallowing a bait Don Brash cast is a perverse irony for someone who claims such strong socialist credentials as you do. If your paranoia about “brown fat cat” elites extended to Brash and Ansell you might have pause to reconsider this position. If you lack faith in the government’s ability to hammer out a binding and enforceable agreement which will guarantee access, then say so. That’s a different matter.

    Your appeal to being able to “vote them out” is hollow, because a democracy is founded not only on the ability of citizens to choose their parliament, but on the rule of law and the knowledge that citizens can expect to avail themselves of its institutions. Whether you like it or not, the Treaty is a document with genuine legal and constitutional weight, and it predates and tends to supercede the Statutes of Westminster where the two conflict. The question which you’re trying to answer is one of practicality and expedience: who should get the foreshore and seabed? The question which needs to be answered is one of principle and historical fact: whose was the foreshore and seabed, and has it been alienated? If you would substitute the first for the second, and enforce that by majoritarian rule, then you do not advocate a free and democratic society, but one where a powerful, elite majority subjugates a less numerous, weak minority in order to serve their own interests. Isn’t that what you socialists claim to fight against?

    I’ve warned the left before: don’t pick this fight; it can’t be won. And it certainly can’t be won with the left’s principles and historical loyalty intact. Anyone who takes the position you advocate, race war cultural majoritarianism, had better be prepared for it to be revisited upon them in future generations. Due to simple cultural and demographic reality, it is a losing battle. For my part, I’m trying to prevent it ever coming to that.


  4. SPC on February 11th, 2010 at 23:29

    The public domain line was the original Labour position before Winston vetoed this (and National’s hard-line) forcing them to the F and S Act outcome. It’s not a Dunne idea.

  5. Lew on February 11th, 2010 at 23:32

    SPC, it wasn’t a Dunne idea then. It looks like a Dunne idea now.


  6. SPC on February 11th, 2010 at 23:39

    Sure, it’s most likely Dunne’s attempt to remain relevant, and it relates to his self-appointed leadership role on and advocacy for debate constitutional issues.

    Though it’s possible he’s floating the old idea on behalf of National to see if Labour is prepared to “draw a line in the sand” and help them out of their “MP” problem.

  7. Hugh on February 12th, 2010 at 01:42

    The trouble is that Māori — and the māori party in particular — don’t just want everyone to get along; they want their historical claims … negotiated to mutual satisfaction.

    So they don’t want everyone to get along, they want mutual satisfaction? Thanks for clearing that one up, Lew!

  8. marty mars on February 12th, 2010 at 08:42

    the “let’s work as a team and do it my way” line from the powers that be won’t work with this issue IMO

  9. Lew on February 12th, 2010 at 09:16

    Hugh, “wanting everyone to get along” is a goal, but not an exclusive goal — hence “just”. Mutual satisfaction via negotiation is a means to achieving that goal, and (I would argue) a necessary condition of “everyone getting along”. Other means — such as the will of one group being wholly or predominantly imposed on another — are not means which will be acceptable.


  10. gitmo on February 12th, 2010 at 11:41

    Let people test their claim in court, if they can’t test their claim in court why aren’t we making the same decisions about all the foreshore and seabed that is currently in private ownership, or is there some ongoing paranoia about Maori ownership as compared to other races ownership rights ?

  11. Lew on February 12th, 2010 at 12:18

    Gitmo, in any reasonable proceeding, parties can agree to forego their day in court in exchange for a negotiated settlement. I think that would be an acceptable circumstance, as well. But to answer your question: yes, there is. Proof: absence of concern about those areas of the coastline already in private (ethnically-European, foreign and/or corporate) ownership — even when those owners physically and legally prevent the public from accessing those areas.


  12. Tim on February 12th, 2010 at 17:49

    Good posts and comments as usual Lew. I have a quick inquiry.

    those areas of the coastline already in private (ethnically-European, foreign and/or corporate) ownership — even when those owners physically and legally prevent the public from accessing those areas.

    I’m not disagreeing, but for my own knowledge and research: are there some solid examples or lists of such places?

  13. Hugh on February 12th, 2010 at 19:02

    I’m also interested that, according to Lew’s definition, if a non-ethnically European person owns the coastline it’s not counted as private ownership.

  14. Eddie C on February 12th, 2010 at 19:35

    Well, if its native title, Hugh, technically its not.

    Native title exists outside our system of property right derived from the Crown. Its a very old common law doctrine, where native peoples are held to have a right to use the land as they have for generations unless and until the Crown validly extinguishes or purchases that land. Its collective traditional ownership, not freehold private title. There is a serious argument (accepted by the Court of Appeal of New Zealand) that at least in some places title to the foreshore and seabed was not validly extinguised. (For completeness, I should note that this isn’t a treaty issue, its simply application of the ordinary law of real property).

    It really is helpful in situations like this if you actually know what you’re talking about.

  15. Hugh on February 12th, 2010 at 19:40

    Oh I know what I’m talking about, Eddie.

    Hence my understanding that it’s possible for indigenous people to own parts of the foreshore and seabed, not through native title, but through plain old fashioned western european legal system style property ownership.

    Probably not very widespread, but the possibility exists, and Lew’s post fairly strong implies that this wouldn’t be private ownership – since he pinpointed the ethnicity of the owner as decisive.

  16. Eddie C on February 12th, 2010 at 19:49

    Hugh – fair enough. I assume Lew was contrasting such ownership with the native title that was at issue in the whole “foreshore and seabed” issue as it was played out 5 or 6 years back. Could be wrong, and don’t want to speak for Lew – I assume he’ll reply given time.

  17. Lew on February 12th, 2010 at 23:04

    Hugh, that’s a fairly perverse reading. Eddie’s right — the example list was not supposed to exclude indigenous private owners so much as to emphasise who the existing owners predominantly are — and with whose ownership of coastal land the NZ public doesn’t have much of a problem.

    And customary title such as what is proposed isn’t really ownership in the sense most people understand, particularly with an inalienability condition. Customary title is a source of some concern, though, since people don’t understand it well, and it’s been propagandised by people like Tom Semmens as an arbitrary thing where the capricious natives can demand whatever they want.

    Tim, I’m not aware of a centralised list of coastal land in private ownership, but the obvious examples are the areas owned and secured by port companies and farmers. Regional councils will have a list for their own regions. It would make an interesting research project.

    Edit to add: Environment Waikato has a pretty good general survey of their area.


  18. cowbell on February 13th, 2010 at 04:30

    Very clear thinking Lew. Thanks

  19. ak on February 13th, 2010 at 11:28

    Here’s the thing: there’s a strong, almost a priori sense of automatic littoral access rights among all peoples. For decades, huntin’, fishin’, boatin’, and just good ole beachin’ folk of all hues have bristled at baches and flouted flimsy fences. “Private Beach” is a detested, oxymoronic term in the gut feelings of most.

    The pakeha aversion to mooted maori “ownership” (of whatever obtuse legal description) may not be so much racially based as concerned with an extension of current misgivings about ownership – by whomever. Furthermore, the pakeha “acceptance” of existing private holdings (that Lew and gitmo compare to current attitudes and thus ascribe to racism) doesn’t seem much different from the “maori” attitude over the decades. So why the furore now? Especially when Ngati Porou seem happy with the current set-up. By the same logic, is the MP guilty of “Labourism”?

    Which is why the present freeheld F&S deserves greater scrutiny: the farmers, wealthy owners and NACT are conspiciously quiet on the subject: fingers crossed with grips tightening on the titles.

    With most progressives, I applaud the formation and success of the Maori Party: divide and conquer can only be beaten by unity, but I can’t help thinking that F&S was a catalyst that is in danger of overwhelming and diverting from the larger goal.

    If the entire coast were handed over by magic tomorrow, would my foodbank clients and beneficiaries (predominantly maori) be any better off sometime soon? I know what Labour’s WFF and the improved DWI culture did for them: I wish the Maori Party and their supporters would concentrate more on what tory GST increases and benefit crackdowns will do, rather than symbolic legalistic wrangling laced with jibes at Labour.

    Ditto Labour: it takes two to kanikani. Brilliant, Lew:

    Don’t pick this fight; it can’t be won. And it certainly can’t be won with the left’s principles and historical loyalty intact.

    This should be cast in bronze and hung over every Labour office in the country.

  20. Tiger Mountain on February 13th, 2010 at 12:22

    @ Tim: A drive around the Bay of Islands in Northland will reveal numerous (in the low hundreds) security monitored gated properties that restrict or (usually) prohibit beach and coastal access. The vast majority are (often absentee) Euro/US/corporate owners, but there are a handful of iwi private owners too such as at Takou Bay, where there is restricted access. But in reality if you have local knowledge there is often no actual restriction.

    The rednecks in the North whinge as soon as local Maori point out the inequity of Pakeha sitting on most of the prime sites, as the Ngati Kahu Popata brothers did recently at Taipa, yet remain silent on the right of wealthy pakeha and overseas owners to restrict beach access. I Agree with Lew that this is partly a generational issue that will come closer to resolution over time.

    What I could do without is Lews apparently hefty ego…

    I’ve warned the left before: don’t pick this fight; it can’t be won. And it certainly can’t be won with the left’s principles and historical loyalty intact. Anyone who takes the position you advocate, race war cultural majoritarianism, had better be prepared for it to be revisited upon them in future generations. Due to simple cultural and demographic reality, it is a losing battle. For my part, I’m trying to prevent it ever coming to that.

    How many warnings does the ‘left’ get before a final warning and dismissal one might enquire?

  21. Lew on February 13th, 2010 at 19:41

    TM, it’s a warning, not a threat. Ultimately I’m not thinking that it’s me who’ll be “dismissing” the left; it’s the electorate. Aside from mine, there have been a few more concrete warnings already, largely unheeded.

    I’ve made my arguments at frankly ridiculous length over the past year, so I think the basis for the warning should be pretty clear. If you think I’m wrong, make your case.

    Thanks for the detail about the Northland coasts, by the way.


  22. Lew on February 13th, 2010 at 20:01

    Ak, I think one of the main policy challenges with the takutai moana (as opposed to the political challenges which I describe) is in making the eventual framework work economically as well as symbolically, culturally and spiritually for the tangata whenua concerned. This may mean some economic rights to exploitation (particularly in aquaculture, which is what Ngāti Apa went to court for), or it may mean something else (such as settlements in cash or other resources which can form an economic base for those iwi who are unable to utilise their customary resources as they might have otherwise been. This, I think, is a sticking point for many socialists and a few environmentalists, since they (or their more excitable members, anyway) oppose private economic ability as a general principle, and figure that one businessperson is as bad as another. Accustomed to an economically-weak Māori establishment, many of these folk have been labouring under the delusion that Māori are sort of brown socialists, and they feel betrayed that Māori have aspirations other than their own. A bit like those members of the green movement who think of Māori as kindred spirits who lived in harmony with the land and just want to preserve it — ignoring the fact that they wreaked plenty of environmental havoc in these lands before Europeans arrived, and gleefully used the tools and technologies the Europeans brought to extend their footprint. This, I think, is what has given rise to the vitriol we’ve seen from the non-progressive left against the māori party and the tino rangatiratanga movement: they’ve only just figured out that — like Baxter said — they’ve been living side-by-side for generations and come away with little more than “a few place-names and a great deal of plunder,” and little in the way of genuine understanding.

    I think the matter of whether the “larger goal” has been diverted from depends on what that goal really was. I’m not convinced the goals were ever really shared, and I think the response of ther left to tino rangatiratanga as it is now becoming manifest illustrates this. I don’t think this means there’s no basis for continued cooperations, though — only that the groups will need to learn to stand together on their common ground, and learn to stand apart when they need to. THis is why I keep carrying on about Labour needing to stop thinking of itself as the left and start thinking of itself as a central hub to support and coordinate and provide guidance and ideological structure to allied causes. But that’s a bigger project.


  23. ak on February 14th, 2010 at 03:03

    ..and they feel betrayed that Maori have aspirations other than their own

    Orrrrr, they might just feel peeved at having fought racism from the Right for decades, to now see the MP snuggle up to the party of Brash not five minutes after Orewa One. Yep, there’s racism on the left: but please don’t suggest it in any way compares with its volume, intensity and systemic pervasion through right-wing ideology that many of us have observed, fought and yet bear scars from over decades.

    …depends on what that goal really was. I’m not convinced the goals were ever really shared…

    I would’ve thought Helen’s “Closing the gaps” campaign might have given a clue. Scuttled by who else – the Right, with media support. (and now resurrected almost verbatim in Whanau Ora: lets see how that goes. Prediction: swimmingly till 2011, when funding disputes “provoke” another election-winning Orewa One-like pronouncement)

    Labour…..central hub to support and co-ordinate and provide guidance and ideological structure to allied causes

    Sorry Lew, but the left will never be subsumed into anything like a middling council manager’s latest rhetorical wank: it’s the living, weeping sighs of a billion souls – the defiant, courageous roar of the underdog down the ages, the blood-soaked heritage of our present comfort. Simple. Pure. And just sitting there waiting for Labour to re-discover, assume, and fearlessly promote.

  24. Lew on February 14th, 2010 at 08:39


    Orrrrr, they might just feel peeved at having fought racism from the Right for decades, to now see the MP snuggle up to the party of Brash not five minutes after Orewa One.

    … and not two minutes after actually enacting the biggest bit of policy racism in recent history. This is the problem: Labour and much of the wider left think Māori owe them, and that they should have just sucked the Foreshore and Seabed Act up and coped. I disagree; I see Labour winning very few elections and getting precious little of anything done without Māori (particularly the Rātana alliance).

    I would’ve thought Helen’s “Closing the gaps” campaign might have given a clue. Scuttled by who else – the Right, with media support. (and now resurrected almost verbatim in Whanau Ora: lets see how that goes. Prediction: swimmingly till 2011, when funding disputes “provoke” another election-winning Orewa One-like pronouncement)

    I think that’s what Labour are holding out hope for — Māori coming back to them on the rebound. I think this is a somewhat forlorn hope — if that’s the case, I think labour-loyal Māori will simply stay home on polling day, as they did after the FSA.

    Sorry Lew, but the left will never be subsumed into anything like a middling council manager’s latest rhetorical wank:

    Come off it, you know that’s not what I’m saying. If anything, that’s the sort of description best applied to Labour at present. What I’m advocating is a party which works with its allies rather than against them.


  25. Lew on February 14th, 2010 at 11:47

    And another thing about “closing the gaps” — the most vocal opponents of the scheme were a certain party led by Winston Peters, to whom you, ak, recently pledged some degree of conditional support. How’s that?


  26. ak on February 14th, 2010 at 16:02

    …you know that’s not what I’m saying

    True. Just allergic to this sort of phraseology (massive overexposure) and emphasising that basic principles must always retain precedence over “getting along” – despite the current urgency for Lab to improve on the latter. (Alliance experience – “hubs of co-ordination” tend to descend into “hububs of consternation” pretty quick and the big piccy is lost)


    (heh heh, gotcha as they say on the popular classic sites. Be a still day in Wellington…mindya, in the absence of substance, style has a certain attraction to it and if any leopard can genuinely change his spots I wouldn’t put it past that old rooster – especially after his 2008 treatment)

  27. peterquixote on February 14th, 2010 at 17:44

    The modern day Ghengis Khan will arrive here shortly, and that will be the end of all Maori racist tribal rights.

  28. Lew on February 14th, 2010 at 21:02

    ak, yes, all this urging is with the Alliance’s spectacular failure squarely in mind. Part of the problem even then was that Labour was working against them, rather than with them — such as by standing candidates against key Alliance people who could realistically have won with Labour’s endorsement. That having been said, I accept that the fractured activism of the Alliance was their main downfall. I don’t think that’s impossible to overcome.


    An intriguing and fantastical analysis. Perhaps you could elaborate and, err, make it [the world] fit in with reality?


  29. peterquixote on February 26th, 2010 at 19:24

    ok dude,

    here is an article from an idle fellow

    it says :

    Hidden away in the financial pages recently have been two small but telling news items. The first was the appointment to the post of Chief Economist in the World Bank of Justin Liu, former Economics don at Peking University. The second is the recent announcement of Zhu Min’s appointment as “Special Adviser” to the Managing Director of the IMF. Mr Zhu is Deputy Governor, People’s Bank of China.

    China is moving into positions of power in the global financial architecture, in part as a spearhead for the developing world, in part as a recognition of China’s status in the global economy. Deng Xiaoping must be smiling in his post-Mao heaven.

    here comes Genghis Khan,

    from peterquixote

  30. Lew on February 26th, 2010 at 21:04

    Peter, that’s what I figured you were alluding to. I’ve been thinking a fair bit about this sort of thing, given that Pablo’s also been posting on it.

    But I still don’t really get it. Do you mean to suggest that we just shouldn’t bother getting on with running our own country because, soon enough, the barbarian hordes will turn up and ruin it all? Or if not, what’s your point?


  31. […] its own immortal soul in 2004 and 2005. “One law for all” While I’m on record opposing a “public domain” resolution of the Foreshore and Seabed because it’s a solution […]

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