Marty Mars has reproduced an interesting panui he received from The Maori Party. Taken at face value the piece appears to be standard political material, nothing controversial or new, just restating what is already in the public domain. However, a few points caught my attention, specifically;
(The Bill) 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.
The MCA bill does allow iwi to claim customary title; however s33 of the Foreshore and Seabed Act 2004 (FSA 2004) allows iwi to claim territorial customary rights (TCR). s32(1) defines TCR as “customary title or an aboriginal title that could be recognised at common law”. So what is the difference between the FSA 2004 and the MCA bill? As far as I know, not much. TCR and customary title, or customary marine title (CMT), are basically the same thing under the common law. The key difference I suppose is the MCA bill clearly defines the rights associated with CMT under s64(1) while the FSA does not define any rights associated with TCR rather under s37(1) a successful applicant group must enter into negotiations with the Attorney-General and Minister of Maori Affairs “for the purpose of negotiating an agreement as to the nature and extent” of TCR. So under the FSA 2004 customary rights are conferred via order-in-council, after negotiation with the relevant ministers, whereas under the MCA bill rights are conferred via legislation once the relevant criteria are met. In sum, not much difference, but I personally think the MCA bill approach is superior.
The peice also claims;
Restores the right of access to court. If negotiations with Ministers do not reach agreement, tangata whenua can take their title claims to court.
First of all – right of access to the courts was not extinguished. s33 of the FSA 2004 reads;
High Court may find that a group held territorial customary rights
The High Court may, on the application of a group, or on the application of a person authorised by the court to represent the group, make a finding that the group (or any members of that group) would, but for the vesting of the full legal and beneficial ownership of the public foreshore and seabed in the Crown by section 13(1), have held territorial customary rights to a particular area of the public foreshore and seabed at common law.
Forgive me if I have misinterpreted this, and I do not think I have, does this section not grant The High Court power to determine whether iwi posses customary title? Why then is The Maori Party claiming to have restored access to the Courts? Bizarre.
I also want to address this point;
The Crown has to prove customary rights were extinguished, not iwi.
While s105(1) of the MCA bill reads;
Burden of proof
The applicant group must prove that it is entitled to the customary interest that is the subject of the application.
This section clearly sets out that it is the responsibility of iwi to prove customary rights were not extinguished. It does not fall upon the Crown to prove otherwise. Why has The Maori Party made such a wild claim when the bill clearly states that the opposite is true. Is The Maori Party deliberately misleading Maori? Have I missed something? I am leaning towards the former.
I also took issue with this statement;
The Bill does not settle the issues, but it keeps them alive.
I disagree - the bill definitely settles the issue. No party will revisit such a toxic electoral issue unless they are moved by the majority to repeal it. Debate around Maori property rights always breeds controversy and discord. No government will reopen a can of worms as unpredictable as the foreshore and seabed. Labour will not go anywhere near the issue because National will savage them. While a second or third term National government will lack the political capital required to revisit the issue without alienating their support base.
I have run out of time so I will quickly conclude. It appears The Maori Party are engaging in some good old fashioned political propaganda. Well done to them for recognising the power of the blogsphere and reaching out to Marty Mars. However; if the party is going to put stuff out in the public domain it should make a greater effort to ensure the material is accurate. I hesitate to say the party is making a deliberate effort to mislead people, maybe I missed something,. Either way, The Maori Party should tread carefully.
Kia ora Morgan,ReplyDelete
I am on the maori party email list so a few people may have received it. I'm not a member of the party.
You have identifed interesting issues with the communication - I found the answers to these questions weird too...
"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."
Kia ora Marty,ReplyDelete
That's right the answers, and even the questions, are rather strange. Especially the one re repealing the FSA 2004 and replacing the act with a more favourable bill. I understand what they are trying to get across but the question and answer are so poorly worded that prima facie they are totally unrelated.
I do take issue with the reasoning that the law will not allow uncertainty. Well I think it will. The law will allow uncertainly until such time that that uncertainty is tested. The situation pre-2004 is totally acceptable under the law. The FSA 2004 was not about legal clarification it was merely a (populist) response to misguided sentiments among the majority.
Forgive me if I have misinterpreted this, and I do not think I have, does this section not grant The High Court power to determine whether iwi posses customary title?ReplyDelete
It does not. It grants the High Court the power to say: "You do not have customary title, because the FSS Act says no-one does, but if that law hadn't been passed, then you would just have proved you had customary title."
This section clearly sets out that it is the responsibility of iwi to prove customary rights were not extinguished.
Iwi must prove they have a customary right. But if they prove that, and the Crown wants to argue "they had that right, but it has been extinguished [for example, by an Act of Parliament]" then that is for the Crown to prove.
e.g. an iwi goes to Court and proves that they have customarily taken gold from an area of the foreshore. The obligation then goes on the Crown to prove that their customary right to take gold was extinguished (for example, by pointing to the Crown Minerals Act 1991)
Thanks for providing some clarity on the issue. With this in mind it appears no misinformation was provided in the panui. A misinterpretation on my part rather.