'New' policy: unfair, unjust and unnecessary
7 April 2004
The government's 'new' framework for its foreshore and seabed legislation was released today; the legislation is be introduced tomorrow. It is a continuation of the government's approach to the Court of Appeal ruling last June - unfair, unjust and unnecessary.
The substance remains the same as that outlined in the December Policy Framework - it is confiscatory, it denies access to the due process of law for Maori, and it is racially discriminatory in that only one group are to have their property and rights taken away. The rights of private landowners are preserved. The government retains the right to sell the foreshore and seabed through an Act of Parliament.
The framework continues the misleading myth making the government has been engaged in since last June - the first of the government’s guiding principles is again stated as: "the principle of access: the foreshore and seabed should be public domain, with open access and use for all New Zealanders". This is a total denial of reality - private landowners, commercial enterprise, and government agencies have restricted 'open' public access to, and use of, the foreshore and seabed for the past hundred years or more. It reinforces the deception that only Crown ownership will permit access. And again Maori are apparently excluded from "all New Zealanders" - clearly they are not to have 'open access' to what is rightfully theirs.
Selected quotes from the Waitangi Tribunal WAI 1071 Report are used to justify the Framework - a particularly perverted use of the Report as the Tribunal's "primary and strong" recommendation to the government was that they should "go back to the drawing board and engage in proper negotiations about the way forward" with Maori. The Tribunal found that the policy breaches the Treaty of Waitangi in "fundamental and serious" ways which give rise to "serious prejudice".
Further ... "beyond the Treaty, the policy fails in terms of wider norms of domestic and international law that underpin good government in a modern, democratic state. These include the rule of law, and the principles of fairness and non-discrimination." The Tribunal did not seek "to suggest changes to the details of the policy, as we think changes to details would not redeem it." It is difficult to imagine how anyone who has actually read the WAI 1071 Report could find anything within it to justify the 'new' Framework - were the Report quotes used as a continuation of the government's deceptive and dishonest response to Court of Appeal ruling? or in petty revenge because the Tribunal maintained its statutory independence in assessing the policy?
What is new about the Framework are some of its more bizarre aspects, including newly manufactured (and essentially meaningless) phrases such as "full territorial customary right" ... and of course the rather surreal and definitely absurd new concept (previously unheard of in law) - "An applicant group may seek a declaration by the Court that the cumulative bundle of rights to which they would have been entitled over an area of the foreshore and seabed would have amounted to a full territorial customary right had the legislation not vested the full beneficial ownership in the Crown."!
For preliminary comment, see 'The Crown Baselines for Legislation on the Foreshore and Seabed' by Moana Jackson. If you would like a copy of this paper, please email and include a note as to whether you would prefer it as a Word document or in paper form. Further analysis by Moana Jackson will be available in the next couple of days.
Also available is 'Analysis of April Foreshore and Seabed Framework' by Te Ope Mana a Tai and 'A few personal comments on the "new" foreshore/seabed policy' by David Williams.