ACT's position on the Foreshore and Seabed

I think I'll stick to welfare. Trying to sift through the arguments and counter arguments put by National and ACT regarding the Coastal and Marine Bill has defeated me. But my claim that ACT has reversed its position since 2005 is apparently wrong. Fair enough. I was still distracted by their insistence that Maori shouldn't be able to block, or charge for, access to private property (as proven under customary title).

Here is what Rodney Hide said a while back on Kiwiblog;

ACT is the only party never to have flip-flopped on the foreshore and seabed. Our position has never changed.

ACT opposed Labour’s discriminatory Foreshore and Seabed Bill 2004. I joined the Hikoi in Wellington. We argued that iwi — like every NZer — were entitled to their day in court.

In our discussions with both the Maori Party and National Parties, ACT’s position has always been the same:

1. Repeal the Foreshore and Seabed Act;
2. Return iwi and hapu to their pre-2004 legal position with respect to the Foreshore and Seabed;
3. Enable claims for customary title to be heard by the High Court, not the Maori Land Court. As I understand it the Maori Land Court is not equipped either to (a) hear claims for customary title; or, (b) recognise customary title. Their only redress is to award fee-simple title;
4. Legislate public access.

Instead the Maori Party and National Party have agreed to a confusing and confused legislative solution. It is to be Parliament, i.e. politicians and politics, determining the extent of customary title (of course, it is to be no longer customary title, but statutory title), and the test for granting title. It won’t be the Courts determining customary title based on the law and the facts, but politics.

Worse, National’s new Bill gives the Attorney-General the power to negotiate deals carving up the coast with iwi in his office in secret. It’s a disgrace. Politics will determine which iwi get in the door — and what they get.

The objection to ACT’s position from both parties is that the courts would take too long and may determine that iwi and hapu claims are without merit, i.e. that the courts would not award title. That’s certainly what the Court of Appeal judgement suggested and that would be consistent with the 1963 90-mile beach claim. The test under customary law is a high one. Perhaps an impossibly high one.

But that’s not an argument for lowering the test and extending the extent of the rights that can be awarded.

ACT is the only party that has stuck to its principles throughout.

Both the National and Maori Parties promised that iwi would not charge the public for access to the foreshore and seabed in statutory title. But, of course, the Bill as drafted doesn’t preclude that.

ACT is attempting to make sure the government delivers on that promise by proposing an amendment accordingly.

Commentators referring the situation of land held in fee simple or rights granted by the courts are making a straw man. The title being granted under the proposed Marine and Coastal Area (Takutai Moana) Bill is not fee simple, and is not customary title being granted by the courts under customary law; but rather is title granted by politicians in parliament and the Attorney-General in his office.

ACT will oppose this law for the reasons outlined above but in the meantime will propse amendments to ensure it does what the politicians promise it does!

Rodney Hide