Submission on Marine and Coastal Area (Takutai Moana) Bill
I, Stephen Franks, offer this submission and ask to be heard by the Committee.
My contact details are as follows:
Postal address: PO Box 10388, The Terrace, Wellington 6143
Work Phone: 04 815 8033
Email: stephen.franks@franksogilvie.co.nz
Why submit?
1 I submit on this bill reluctantly. I am driven partly by the personal responsibility I feel for some of the pressure that lead to a perceived political need to repeal the Seabed and Foreshore Act 2004.
· I campaigned against that Act because it deprived Maori of the right to go to court.
· I campaigned in support of their Treaty property rights even though I considered their cause in relation to most of the coast to be misconceived in law.
· I campaigned for their rights even though the Treaty itself has become the subject of myth and falsehoods in an attempt to create political race privilege, when its simple terms promised a colour-blind equality before the law.
· I campaigned for the law to be applied by the courts even though I considered (and said in Parliament) that the Court of Appeal was naive and wrong and usurping the role of Parliament in changing what had been settled law in New Zealand for many years.
· I campaigned because I believe that integrity in adherence to law and constitutional conventions is more important than the outcome of a particular issue.
2 And now I submit because what this Bill proposes is worse. It is unprincipled, dishonest and damaging. It is the translation to law of misleading political slogans. It flouts values that are critical to maintaining respect for the rule of law, and property rights. It is bad for Maori, and worse for the rest of us.
· In 2003 and 2004 I committed hundreds of hours to helping to ensure that my then party adopted a principled position on the Court of Appeal Ngati Apa decision, consistent with the rule of law, and the Treaty;
· That position, opposing the Seabed and Foreshore Bill, was at considerable political cost. I was my then party’s spokesman on the Treaty and law and Maori matters. Many of my party’s members, and many of my personal supporters were more inclined to the National Party position. They saw any intrusion on the generally accepted underlying Crown ownership of the coast as a threat to access, and to the treatment of all New Zealanders as equal before the law.
· We organised a multi-party conference at Parliament, and invited experts to educate us on the legal principles at stake. I was greatly assisted by that. Among the experts was Marcus Poole the practitioner I knew as the foremost Maori land lawyer in New Zealand who told me that Judge Hingston’s propositions (effectively adopted by the Chief Justice) were preposterous.
3 I am concerned that if this Bill becomes law it will accelerate a disrespect for the rule of law and for integrity in our constitution. It trashes genuine property rights. It claims to respect the Treaty but actually perverts the Treaty.
4 A Bill purporting to foster respect for the rule of law, and to express goodwill and tolerance in fact seems calculated to exploit good will. It will write inherited privilege into law. Exploitation of the rights it would grant will foster the naked exercise of political advantage for profit. It will say to a new generation that cynical manipulation of political threat is more successful than adherence to legal principles.
5 I am now concerned that this Bill will prove right those I opposed 7 years ago. They may have sensed that any concessions in the area would be abused, that they would be seized upon and interpreted as vindication of the extremist position (not advanced by the Court) that Maori had a permanent underlying ownership of common land irrespective of the common law and irrespective of the limits applied in tikanga Maori. Perhaps they instinctively recognised that giving credence to the limited prospects of success seen by the Court of Appeal would encourage occupations like that at Taipa, and a pusillanimous response from those ducking their duty to uphold law and make sure that bullying can not win.
6 As it turned out Michael Cullen did a good job in codifying the common law in the Seabed and Foreshore Act. It respects the law and our constitution better than this Bill.
What should happen
7 If there are political reasons why the existing law can not be retained, if the 2004 Act must be repealed the repeal should provide that the 2004 Act’s codification of the common law should be applied by the Courts in dealing with claims to customary interests.
8 I urge that the Select Committee:
(a) Restore the clarity and simplicity of underlying Crown and local authority ownership by omitting clauses 11(2) and 11(3). The political pretence of non-ownership will disfigure our law
Walks like a duck, quacks like a duck – It is a legal nonsense to declare something incapable of ownership. Ownership is a description, not a status. Parliament is capable of declaring that there shall be no fee simple title, or leasehold title or other legally defined status, but ownership is a term that describes in summary the nature of a property right – the result of a relationship determined by a bundle of rights and powers in relation to land (or other assets). Whether land is owned or not is determined by those rights, not a political declaration dressed up as law.
In Yanner v Eaton [1999] HCA 53 the High Court of Australia defined a property right. The case involved an aboriginal challenge to law prohibiting the hunting of crocodiles, where the defendant argued after Mabo and the Native Title Act 1993 that crocodiles were aboriginal and not state property. The Court held that a property right is simply “a legally endorsed concentration of power over things and resources”.
This Bill maintains that level of power. It purports to remove ownership, then proceeds to reaffirm Crown rights that sum up to a level of ultimate control that is ownership. Repudiating ownership in these circumstances is no more effective than a law forbidding someone to be respected, when respect describes the judgement of others, not within the power of the state to control. A declaration like this demeans our law, declaring a political slogan to be true when it is not;
(b) Amend clause 63 to make it clear whether delegation or transfer “in accordance with tikanga” is a disguised way of permitting leasing and sale respectively and amend clauses 64 to 91 accordingly. As the Bill currently reads, it appears not to match the claim in the preamble that the interests will be inalienable, or other claims that holders of customary title cannot “sell” it;
(c) Protect the rule of law (that people can know in advance what is lawful and what is not) by removing or defining precisely vital terms that appear to have no settled and readily discovered meaning: (like mana tuku iho, hapu, customary interests, customary authority and tikanga).
(d) Omit clauses 93 to 95 allowing the Minister to create customary marine title and protected customary rights. Those powers will generate continual perceptions (or the reality) of political corruption, especially if the Maori Party hold the balance of power. In light of that likelihood it is constitutional recklessness to leave the temptation of the creation of valuable mineral rights in the hands of politicians, when they should instead be dealt with only by the courts under clauses 96 to 112, applying clear legal tests. [perhaps include here other options if the reason is costs or access to the Courts. Those options would be better to avoid any perception (even if misconceived) of political horse trading]
(e) Omit clause 97(1)(a) obliging the Court to accept the views of the Maori Appellate Court on tikanga. Instead provide for the Court to have regard to an advisory opinion of that Court, in line with the corresponding provisions of the Seabed and Foreshore Act. As explained later that Court is not permitted to be impartial and it is offensive to give a racial trump card under the pretence of judicial impartiality.
(f) Remove rights to transfer protected customary rights to, or their exercise by, persons who do not principally reside in the neighborhood of the areas subject to them, if protected customary rights are not so rare as to be redundant once established common law tests are required to create them. Customary rights were a reflection of control of resources by the people with the greatest stake in how they were administered. Shorn of that connection they are the worst of all forms of power – rights with no responsibility for costs or consequence.
(g) Provide for local authorities to apply to the court for the surrender of protected customary rights, to help protect communities from corrupt or venal outsider exercise of the veto powers under protected customary rights, and the negligent or improper local exercise of those powers. True customary rights had a natural expiry mechanism. They should not last for all time if those holding them are incapable of reflecting their local community.
9 If the above recommendations are not accepted, then clarify and correct or omit the references in the Bill to the Treaty of Waitangi that wrongly claim or imply that this Bill is a reflection of or in fulfillment of the Treaty. Even if it was, the uncertainty of the processes created by this Bill run counter to the Government’s stated policy of bringing Treaty grievance processes to a close.
What does the Bill do?
10 Breach of the Treaty – The Bill does the exact opposite of what its promoters no doubt set out to do. It is a fresh breach of the Treaty. The Treaty in Article 2 promises classical property rights – “the full and undisturbed possession of their Lands and Estates Forests Fisheries and other properties which they may collectively or individually possess so long as it is their wish and desire to retain the same in their possession but [with the right to sell at an agreed price, subject to Crown pre-emption]”. The Bill does not offer to anyone the exclusive use possession and enjoyment and right to sell promised by that affirmation of property rights.
11 Replaces one inequality before the law with a fresh and bigger one – Nor does the Bill respect the Third Article’s promise, in Sir Hugh Kawharu’s translation of the Maori version to “…protect all the ordinary people of New Zealand and … give them the same rights and duties of citizenship as the people of England”.
12 Democracy as elite ethnic negotiation – The Bill sets out on a new constitutional course for New Zealand, departing from the promise of equality before the law (Hobson’s “He iwi tahi tatou” (now we are one people). It expressly says that some genes will in perpetuity confer on some New Zealanders political rights to rule their neighbours’ use of land until now held for all in common.
13 Though claiming to respect the Treaty of Waitangi it in fact negates its express promise of equality before the law. Instead it establishes a poorly defined inherited privilege to give trumping power over resource management decisions of democratically elected local government.
14 Fresh derogation from the power of courts to apply the law – Though claiming to reverse a deprival of access to the courts determine property rights it takes the determination of these matters further out of reach of the courts and the application of known law.
15 Damaging to understanding of property rights – Though claiming to respect property rights it abolishes the simplicity and honesty of ownership in the marine area. It creates instead rights that have purposes which are the opposite of the purposes of property rights. For most of the areas concerned they will tend to prevent improvement. They remove clarity about who has the rights to control uses and to benefit from development. Political processes of negotiation and pay-off or trade-off are to replace the normal property right powers that assume most owners have incentives to protect values and to turn to assets to good account as the best way to maximise the long term value of the asset.
16 The new protected customary rights bear no comparison with the positive property rights assured by the Treaty. They will condemn hapu and iwi holding them to continually blocking the proposals of others as the only way to extract tangible returns.
17 Deliberate uncertainty – Though claiming to give certainty where there is presently uncertainty it deliberately introduces vague and undefined terms, and leaves irresistible incentives for hapu, iwi and citizens to spend years litigating to determine the boundaries of new and undefined privileges, and who may claim entitlement to them.
18 Distorts and abandons longstanding legal understanding – Though claiming to recognise or restore customary rights and privileges, it does not apply the well developed common law tests for customary title or customary rights. Instead it omits vital elements of continuity and adverse possession shared by both common law and Maori custom (ahi kaa).
Positive features of the Bill
19 On the positive side, I welcome:
(a) The recognitions that Maori land rights are iwi and hapu, and rohe based, derived from property occupancy and not attributable to a general entitlement from Maoriness. That contrasts with most references to the Treaty in legislation of the past 20 years. To be fair that was already, however, reflected in the Seabed and Foreshore Act.
(b) The likelihood that many holders of the new rights may find ways to generate commercial uses of benefit to the community generally, by establishing that businesses are modern analogues of historical uses (for example, a restaurant may be the modern development of a place where shellfish were commonly consumed).
(c) The prospect that some at least of the coastline that is presently underused may pass into hands empowered to improve it and make more valuable use of it.
(d) The power for Maori to dispose of interests in accordance with tikanga. Given the well established tikanga around trade that should eventually enable transfers. The creation of a useful market in parts of the marine and coastal area could unblock a logjam on beneficial development and use of areas at present sterilised in low value uses by RMA consent issues
(e) The power for Maori to exploit minerals in relevant areas. Though it is sad that it must be pioneered as an ethnically based privilege, there is a material compensation for all of us if it advances the possibility of effective use of minerals that would otherwise be permanently out of reach because of democratic deadlock between conservation and development interests.
Despite the positives – a bad combination – (unwarranted) ‘admission’ of wrong doing without adequate compensation
20 In combination, the Bill’s purported acknowledgement of Maori rights (presumably or by implication wrongly taken) gives a spurious substance to the grievances expressed by Maori in 2004. Wildly exaggerated expectations were generated by people that had no foundation in the Court’s Ngati Apa decision.
21 Having given substance to grievances the Bill then fails to remedy them. It purports to ‘restore’ or to ‘recognise’ rights taken without applying the tests anticipated by the Court of Appeal in (which thought that there would be few areas of coast that would satisfy the requirements of custom or common law). Instead of granting Treaty property rights that should flow if the acknowledgements were justified, confers deeply impaired rights to be a perpetual overlord with limited and uncertain rights of exploitation but few normal powers of improvement.
Nothing in return for concession
22 When the Police and courts are already unwilling or unable to assure adherence to the rule of law by Maori who occupy land, what will assure New Zealanders generally that this Bill should not be taken for what the Maori Party have assured their supporters it is – a first instalment, or start, with the sequel to be the obtaining of much more when there is enough political power to do so.
Noble purpose not enough
23 I understand the desire to redress the sense of grievance generated by the 2004 Act’s interference with the progress of the claims to customary title through the courts. There are times when a large and liberal approach to an issue may be in the long term interests of New Zealand, even if it results in wealth transfers that are not objectively justifiable on the basis of legal principle. I listen to the protests of Maori spokespersons, that they have no intention to ‘exploit’ the opportunities offered by uncertainties or apparently generous provision in the law.
24 Most New Zealanders would like to support a Bill to right any genuine wrongs perceived by Maori in what happened in 2004. But that spirit of generosity will last only if it is clear that it was received in the same spirit.
Not reciprocated
25 Instead the political environment has resulted in a very clear position from Maori that is anything but “full and final settlement”.
26 Quite apart from the determination of the dissidents among Maori, the mainstream of the Maori Party has made it clear that this Bill is seen as simply a down-payment. In those circumstances, there is no point in generous concessions and sacrifices of principle and constitutional barbarisms.
27 Transactions often involve compromise. But compromise that could seriously damage foundation principles is not sound practice. Even more so when it is not for an enduring contract. If compromise is taken instead as the concessions of weakness nothing has been solved or gained.
28 The Bill operates on the theory that politics and law in this country can now be negotiated output of the elite of two peoples, not the decisions of democratic institutions. On that theory this Bill is foolish for non-Maori. The public statements of Maoridom show that this Bill is not in settlement of grievance so that it can be put behind us to move on. It clearly falls into the category of worthless appeasement from a pakeha perspective, and matchless bargaining enhancement, and a funding base, for Maori.
Wrong Decision Making Forum
29 Clause 97 should not give the Maori Appellate Court a binding authority to steer the High Court on tikanga. That Appellate Court is not permitted by its constituting Act (Te Ture Whenua Maori Act 1993) to be impartial as between Maori and the rest of us.
30 They are charged to advance the interests of Maori – that is their primary duty. They have a duty to be judicial as between Maori and Maori, but no duty to be impartial or fair as between Maori and pakeha or Maori and the Crown. That may be why the Seabed and Foreshore Act gave them only an advisory role. See the highlighted sections of the Te Ture Whenua Maori Act 1993, and the Seabed and Foreshore Act appended.
What should happen – set out the purposes of genuine property rights
A replacement Bill should show respect for the rule of law – being:
(a) Certainty (predictability of meaning in advance).
(b) Integrity ( that it is intended to mean what it says and is not simply a disguised transfer of power to rulers discretion (including judges as rulers) .
(c) Equality before the law.
Respect for classical property rights
31 The Bill is being justified to pakeha largely on the basis that it will effectively sterilise the coastline as is. Of course there are large areas of coast that should be protected from development and exploitation. Reserve status is justified for it. But we have one of the longest coastlines in the world, and one of the lowest population densities, and a declining economic capacity to maintain first world health, education and infrastructure. Accordingly I deplore the absence of any proper defence of genuine property interests in coastal areas.
32 The Bill covertly creates a form of exploitation right for iwi and hapu. I support them having those rights in areas for which they get marine titles. But the circumstances of creation of those titles could simply discredit any kind of status other than reserve. They do not give their owners the true owner’s stake in preserving the long term value of their interests.
33 The Bill is promoted without any proper defence of true property interests for Maori. It removes such interests from local authorities and even from current lease or licence holders. The Bill should have been for a National government an opportunity to strengthen true property rights, for Maori and pakeha:
(a) Property rights protect minorities against majorities.
(b) Property rights save environments. Hardin’s “tragedy of the commons” explains why communal fisheries are generally in decline, whereas our ITQ fisheries are among the healthiest in the world.
(c) Property rights create incentives to plan and work for the long term. Where occupiers do not get, or are not responsible for the residual value, or have such a negligible share interest in it, they have incentives to exploit without replenishing or developing.
(d) Property rights shield innovators. Collectively exercised authority is generally driven to maintain the status quo. Property rights take decisions over limited parts of the area out of the scope of politics, and authorise peaceable experimentation.
(e) Non-communal property rights allow the persistent accumulation of capital. This is more rare over the longer term in communal societies. The price for having decisions on property use made politically is the distribution of some or all of any surplus to those who 'toil not'. It is needed to secure and maintain their political consent. Treating property as “an enshrined right of selfishness” (Karl Max) or as “theft” (Proudhon) results in societies that focus on taking not making.
(f) Property rights assure workers on land that they can enjoy the fruits of their labour. It is harder for free riders to bludge.
(g) Property rights support markets and pricing systems which tend to move the control of assets into the hands of those with the most valuable potential uses for them.
(h) Political resource allocation allows the expropriation of surpluses by the people who can keep their hands on the levers of power. Sometimes the route is assertion of 'public resource' status, then diversion of the benefit to the powerful.
Appendix:
Te Ture Whenua Maori Act
Whereas the Treaty of Waitangi established the special relationship between the Maori people and the Crown: And whereas it is desirable that the spirit of the exchange of kawanatanga for the protection of rangatiratanga embodied in the Treaty of Waitangi be reaffirmed: And whereas it is desirable to recognise that land is a taonga tuku iho of special significance to Maori people and, for that reason, to promote the retention of that land in the hands of its owners, their whanau, and their hapu[, and to protect wahi tapu]: and to facilitate the occupation, development, and utilisation of that land for the benefit of its owners, their whanau, and their hapu : And whereas it is desirable to maintain a Court and to establish mechanisms to assist the Maori people to achieve the implementation of these principles
General objectives
(1)
In exercising its jurisdiction and powers under this Act, the primary objective of the Court shall be to promote and assist in—
(a)
The retention of Maori land and General land owned by Maori in the hands of the owners; and
(b)
….The effective use, management, and development, by or on behalf of the owners, of Maori land and General land owned by Maori.
(2)
In applying subsection (1) of this section, the Court shall seek to achieve the following further objectives:
(a)
To ascertain and give effect to the wishes of the owners of any land to which the proceedings relate:
(b) …
(d)
To protect minority interests in any land against an oppressive majority, and to protect majority interests in the land against an unreasonable minority:
(e)
69
Evidence in proceedings
(1)
The Court may act on any testimony, sworn or unsworn, and may receive as evidence any statement, document, information, or matter that, in the opinion of the Court, may assist it to deal effectively with the matters before it, whether the same would, apart from this section, be legally admissible in evidence or not.
(2)
The Court may itself cause such inquiries to be made, call such witnesses (including expert witnesses), and seek and receive such evidence, as it considers may assist it to deal effectively with the matters before it, but shall ensure that the parties are kept fully informed of all such matters and, where appropriate, given an opportunity to reply.
(3)
Subject to the foregoing provisions of this section, the [Evidence Act 2006] shall apply to the Court, and to the Judges of the Court, and to all proceedings in the Court, in the same manner as if the Court were a Court within the meaning of that Act.
Seabed and Foreshore Act 2004
Further rights of appeal
(1)
A party who is dissatisfied with a decision of the High Court made under section 63(2) may appeal to the Court of Appeal by leave of the Court of Appeal on a matter of fact or law.
(2)
An opinion of the Maori Appellate Court on a question of tikanga Maori referred to it by the High Court under section 64(1) is not binding on the Court of Appeal.
(3)
Section 66 of the Judicature Act 1908 applies to appeals to the Court of Appeal under this section.
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