I understand that the Foreshore and Seabed Act does make provision for judicial determination of customary rights to the foreshore and seabed.
Stephen is right; the FSA 'foreclosed any further exploration on that front.' It removed the common law rights of Maori to seek declarations of customary title to the foreshore and seabed in the Maori Land court, providing a different system to seek “territorial customary rights” and “customary rights orders”, which are about customary use of land, which are not equal to property rights. Customary title implies ownership.
Hey Manakura, Stephen
I should have started by saying that I enjoyed the post. If I had to say just one thing, it would be that the second part of this quote need not be limited by the first:
Instead Maori should get real and focus on rebuilding strategic political and economic alliances with workers, urban liberals, and with building new alliances with ethnic minorities, especially with the Austronesian and Asian diaspora in Aotearoa [...]
What is needed is a foundation of shared social, cultural and political-economic objectives. What I'm talking about is a kaupapa that is specific, practical and pragmatic.
I suppose my own worldview looks something more like this, even if our world renders it little more than a work in progress/idealistic fantasy.
Stephen, my point was a limited one. I can't say whether the customary rights orders allowed by the legislation are illusory or are tantamount to confiscation. I note only s.13(1), 13(2) and 13(3).
13.3 is quite clear: "3) Subsection (1) does not affect customary rights that are able to be recognised and protected under Part 3 or Part 4."
And then Parts 3 and 4 go on to enumerate what may and may not be recognised and protected in some detail. So first, there may be rights still alive other than customary ones. And second, common law may or may not provide for customary ones in ways other than the wording of the statute.
Cullen's summary -- "All the legislation does is codify into statute existing common law rights. Nothing more, nothing less" -- is mendacious. It is the classic political ploy of claiming that a law's effect will be something other than its actual wording.
I am not sure why you quoted him, but his statement is at best a higly partisan opinion.
If your point is that the FSA provides a mechanism for the judicial recognition of certain customary rights but gives title to the Crown (and therefore precludes the direct judicial recognition of customary title), I accept it.
Kia ora Anjum,
the few notable exceptions are willie jackson on tv & derek fox on national radio
Eye to Eye is easily the best current affairs/interview show on the box. That Willie Jackon has not replaced Suzanne Wood on Close Up shows Bill Ralston is [insert unchariatble comments here about Ralston's programming nous]
and i wonder if you have any ideas of how we can actually make it happen...
It's a difficiult proposition, especially because Maori can be terribly racist. That is the major problem to be solved really - all the Maori-Chinese research projects and Muslim-Maori prayer groups in the world won't help if attitudes are not changed substantially among Maori people.
The obvious starting place for this is within the political, academic, and community leadership of te ao Maori (the Maori world). But, as Tze Ming has pointed out in her post today, there is a lack of that. And when some kind of hand of friendship/co-operation is extended it tends to be vague and ill-defined vis a vis the shared whakapapa argument.
Tangata whenua need to step up to the plate and not just exhibit good manaakitanga towards 'recent' arrivals, but to identify specifc political and economic reasons for co-operation between our people/groups and other oppressed minorities. Basically our community represntatives need to engage in a dialogue first, hui, hui, hui. Some non-Maori representation in the Maori Party would be a good move too.
You, like I can put pressure on our leaders to get them thinking of this issue. I for example fully intend on sending emails to Whaea Tariana about her comments on Maori seats and migration. Learning more about our fellow ethnic minorities is obviously a step in the right direction too - something I somewhat ashamedly admit to is that I have little idea about the dynamics of the Asian/Austronesian diaspora in Aotearoa.
That's the macro level top-down stuff, but there's also a micro level flaxroots aspect to it that is so important. One should never discount the importance of checking your friends and family, or even just people in the street. I have managed to talk around at least 4 Maori/Pasifika people that have exhibited some pretty savage (no pun intended!) xenophobia toward 'bloody Asians'.
It all counts, and this personal stuff is immportant for making sure what happens at the macro level is real and not just rhetorical.
Unfortunately I can't really be more specific than that at this stage - as I've said earlier this is only something I have recently become interested in - but once my thesis is done and dusted I can easily envisage spending much more time thinking and doing something about it. I'd love to say, "hey well actually we're organising this hui/conference on the kaupapa of building alliances between Asian and Maori youth, you should come along" but of course i'd be lying or engaging in some sort of 'If you book them they will come' folly.
Maybe next year.
Great post, thanks!
The Treaty is, no doubt, a collection of old musty rat-eaten parchments. No people should or can be bound to words on paper that are not somehow relevant to their collective self-government. The big 'but' is that the Treaty does have some pretty important and widely-subscribed to principles of collective self-government relevant to a nation that is the result of colonisation. Many people act like the Treaty is no longer relevant, and the upshot is that we can now live in a colour-blind liberal democracy. That might work if the people who entered into the political relationship under the Treaty consent to this, or no longer exist. If not, then what Tully would say is that an intercultural dialogue must take place from equal bargaining positions to create a new political relationship. If you don't think that's ever going to happen, you might be a little reluctant to abandon you're old political bargain.
People reading this may be interested in this article by Paul McHugh on some of these issues.
(All from the good ol' Victoria University of Wellington Law Review, I might add).
For more background on the legal position prior to Foreshore and Seabed Act, the Waitangi Tribunal Report is a good (free, online) start. Also, while you're there you might want to take a look at some of the other classic reports, for example Orakei (esp Chp 11) and the generic claims.
The government's analysis of the submissions it received about the effect of the F&S Act is here.
Funny how quickly this fell of most people's radar. Well, most people whose rights weren't affected, eg people who were scared that the great New Zealand beach lifestyle was at threat. But if you want a(nother) nice example of a majority acting to ensure it's interests aren't threatened, here it is. I would have thought that asking for consent before further divestment of the few remaining vestiges of the rights retained by Maori - stemming from English common law and political practice - would be the just thing to do. I hope that such a principle (requiring consent) might be applied to the other vestiges of this political relationship... eg the Maori seats.
[...] the upshot is that we can now live in a colour-blind liberal democracy. That might work if the people who entered into the political relationship under the Treaty consent to this, or no longer exist. If not, then what Tully would say is that an intercultural dialogue must take place from equal bargaining positions to create a new political relationship.
In principle, I believe that our governmental structures should not politically or economically discriminate between cultures. I tend to think of this as a moral imperative.
But history defies theory in a number of ways. The Treaty is one, the breaches of the Treaty a second, the disadvantaged socio-economic position of Maori a third. So when Manakura says he wants to create an alliance of minority groups (to presumably set against other groups), the part of me that cares about principle cringes, and the part of me that looks at our country the way it actually is (and the way it actually happened) understands why such a mobilisation might be necessary.
Funny how quickly this fell of most people's radar
It is foolish to defend the indefensible, and what follows should not be read as an attempt to try. You are right to say, I think, that legislating away rights to customary title is not a very nice thing to do. That said, is the answer to your question that the FSA affects relatively few Maori in mostly insignificant ways? No doubt there will be exceptions.
Firstly, the difference between (territorial rights orders and customary rights orders) and (customary title amounting to fee simple) is easily exaggerated. This is particularly true when you consider what the foreshore actually is. Not being an expert, I can think of only a few rights, other than "ownership" itself, the right to exclude others (I'll come back to this) and commercial aquaculture that cannot be protected under the legislation.
Where customary title could have been proven, the groups affected by the FSA are entitled to territorial customary rights orders and may negotiate compensation from the Crown. So while the FSA is in some ways a forced taking, its not an entirely unmitigated one.
You are right to say that the FSA is an example of the tyranny of the majority. The political threat of customary title holders using their fee simple titles to exclude the public was too great - one of the FSA's stated objectives was to ensure public access to the beach.
The Ngati Apa decision reversed a 40 year old Supreme Court precedent and wreaked havoc with the interpretation of previous legislation that otherwise would have been taken to vest the foreshore in the Crown. This is reflected in s.13(2) of the Act. The decision was a direct cause of Orewa I which in turn almost led to a National government. Had Don Brash been elected I am sure we would be having a very different kind of conversation this Waitangi Day.
I could be wrong about all of this.
I pretty much agree. A couple of thoughts.
(i) Culture and politics:
In principle, I believe that our governmental structures should not politically or economically discriminate between cultures. I tend to think of this as a moral imperative.
We do this already. Our laws discriminate in favor of the 'Pakeha culture' to everyone who lives here. Ok, it is equal treatment - 'one law for all', but the point is whose law is it? It is simply not the case that all cultures embrace the same political (eg democracy, rights, responsibility, criminal, family) and economic ideals. Unless we deny that culture has any impact on one's preferred economic and political order, then we have to accept that 'one law for all' privileges some culture's norms over others'. That's why we have states that have different laws, and not a liberal boilerplate.
You may have already read them, but if not, Will Kymlicka's Liberalism, Community and Culture or Multicultural Citizenship have the best 'liberal' arguments for why culture might be important in a liberal democracy. There is a summary of his position in these books here.
(ii) Ngati Apa
I agree that politics explains the reaction to Ngati Apa. A huge counterfactual fear arose, based on the possibility that exclusive use would have been recognized in areas that were publicly used for generations, and that this exclusivity would have been exercised. We could have easily dealt with any problem after the decisions came out. Yes, fear drove Labour to do what it did. But, like you, I like my politics to appeal to principle, not fear.
Incidentally, the Ninety Mile Beach decision on which the orthodoxy rested was the only case that I remember my property law professor treating with incredulity. The government should have seen the reversal coming, as was pointed out on Public Address at the time. If the government had made clear, say in the 80s when the legal questions were being raised, that recreational use of the foreshore and seabed was protected, we could have been spared the fear-mongering and the iwi/kiwi billboards... but that might have been taken as a nod to customary rights... they can't win...
So when Manakura says he wants to create an alliance of minority groups (to presumably set against other groups)
Hmm.... no. The empowerment of a group that is oppressed and marginalised does not necessarily require the disempowerment of another group (although that is one possibility and probably not a desirable one). In fact it is quite the opposite. Do we not all pay (in not only a monetary sense) to keep a disproportionate number of Maori in prison, hospital, mental healthcare, etc, etc? Politically and economically empowering marginalised sections of a society ultimately benefits everyone.
I would have no interest in 'setting against other groups', if for no other reason because I am, in part and by association (e.g. whakapapa), other groups.
Thank you for posting that Kymlicka link. Although I have not read the books you mentioned I enjoyed reading the summary. I am not able to address the points raised with any sophistication, but I understood the primary thesis to be that liberal societies must specifically protect minority cultural rights in order to ensure that any given individual's right to participate in their culture is equally protected.
I suppose I have tended to simplistically assume that diverse cultures arise from contingent historical forces plus common economic, social and political imperatives, and assumed that cultures will evolve and tend to converge over time as the commonalities comes to the fore. I will have to think about it some more.
Manakura, I didn't mean that as a criticism and I admire your desire to improve the world you see around you. I was just saying that the mere existence of a political force implies conflict with its opposite. While in theory I am not a fan of interest group politics, in practice its the only way of getting anything done.
i wrote my thesis criticising kymlicka (and kymlicka was my external examiner).
after arguing in favour of group rights, he goes on to state that the practice of those rights is best maintained 'in the vernacular' (it's a book called, unsurprisingly, "politics in the vernacular"). he even goes as far as to suggest that some minorities need their own homelands within larger nation-states to practice their own rights, and speak their own language. the obvious case study is canada.
i agreed with kymlicka, but argued that his example only works in specific countries, and went on to argue that NZL (and australia) is a case where his model would not work. there is no way that separate, federal, states could be maintained in a society as small as new zealand.
however, the core of his argument, that minorities need specific rights, and to speak their 'vernacular' i fundamentally agreed with, and argued that new zealand is a mature enough society to allow the same national politics to be spoken in two languages.
time will tell if i am right.
there is no way that separate, federal, states could be maintained in a society as small as new zealand
I would have to agree with this, NZL is too small to take the easy path of creating iwi federal states-within-The State, and furthermore the iwi rohe would be far too small to have any kind of economic autonomy. I say its the easy path because what is really needed is a fundamental change to the structure of Aotearoa to ensure all peoples (and the land) prosper. This I think is much harder than just partitioning a bit of (probably marginal and unproductive) land for the savages to 'go native' on.
Of course this is all based on the NZL being, and remaining, a western style liberal democracy with a market orientated industrial economy. If all that collapses like a Rotorua lake ecosystem then who knows what would become viable.
Che, have you had a chance to read that Jeff Sissons book (First Peoples). The 'Indigenous Citizens' chapter has some interesting whakaaro on indigenous sovereignty, devolution and standards of citizenship.
Weston, no offence taken, I always feel the need to overstress that my position on such things is not based on conflict or violence.
The revolution will not be televised, but if it was it'd be a sitcom, or more likely something funny, such as http://en.wikipedia.org/wiki/Dario_Fo
manakura, kao. i'm going to have to come clean and admit to very recently purging all my old articles, and swearing to return to academic only under duress (i kept all the old books, mostly because they seem to impress people).
just too little money for too much workload. in my current job i'm in a position it would have taken me at least 5 years to reach in a university, and with substantially less sniping, back-biting, and general nastiness.
the good news is that i'm developing my research skills twice as fast, working in a role that's satisfying, and i don't have to deal with students or marking!
there is the whole 'sending things to ministers' vibe, but... meh.
yeah, research and evaluation isn't a bad gig.
swearing to return to academic only under duress
Its a vipers nest alright, although I enjoy that aspect somewhat because I quite simply can't seems to care about career advancement (not in a large bureaucratic organisation anyway).
But Sissons is like good bedtime reading for (former) academics. Very easy to digest.
I hope that such a principle (requiring consent) might be applied to the other vestiges of this political relationship... eg the Maori seats.
You'd think so, but alas no if National under John Key gets its way:
The National Party says if it is elected to power, it will begin work to abolish Maori parliamentary seats in 2014. Leader John Key says abolition will not be dependent on consultation with Maori, which was one of the party's earlier positions. Mr Key says the year 2014 was chosen, as it marks the deadline for the final settlement of historical treaty claims.
The deadline for historical settlements is itself a decison made with no consultation and it mirrors the recent legislation passed by Labour on historical claim deadlines. It's all just more of the same really.
Here a link to Aotearoa's e-panui (newsletter) with the widest circulation. The current issue, put out today, has constitutional reform in Aotearoa as its lead story.
just to get an additional and different Maori perspective than mine.