Te Papa took a beating for suggesting Maori cultural values are a reason to treat genders differently. So what happens when Parliament legislates that Maori must be treated differently?

Seeing as the topic de jour is the invidiousness of discriminatory treatment based on characteristics such as gender or race, I assume we have universal condemnation of a law change solely designed to prevent Maori doing something non-Maori are entitled to do?

And am I alone in being somewhat confused at Rodney Hide delightedly announcing that Act has won this law change, whilst also proclaiming "ACT is the only Party that has consistently stood for the rule of law and one law for all"?

Discuss, with or without reference to Te Papa.

Comments (49)

by Deborah Coddington on October 14, 2010
Deborah Coddington

No you are not alone. But why are we surprised, Andrew? This is the Act Party, which once stood up for the defence of property rights, which now might, if it were true to itself, stand for hypocrisy. After all, there would be enough constituents in the country for it to reach five per cent.

by Mark Wilson on October 14, 2010
Mark Wilson

Andrew, I don't believe that is a fair assessment or that you are comparing apples to apples.

Maori are being given special treatment i.e. they are being given access to land that was taken from them by force or dishonesty. They are also being given compensation including vast sums of money because they say, correctly, that they could not cope with colonization. No problem there.

However there is almost certainly not a race or culture present in NZ who could not claim the same. Certainly my ancestors the Irish could claim every bit as much unfairness as Maori can. And Irish Catholics were treated appallingly by the Protestant majority in NZ since colonisation. Or what about Chinese immigrants etc? There was never a tax on being Maori.

Maori are the only ones being compensated, purely on the basis they were here first. Very tenuous grounds. This means that some wrongs should be redressed but not other wrongs. In fact the whole process is incredibly patronising of Maori, because it says they cannot recover without special treatment but other races and cultures can.

If the wrongs done to Maori are to be redressed, and I have no problem with that, but no other wrongs are to be redressed, then the rest of our society, who are paying for it, are entitled to put limits on that compensation.

There will be an argument that the damage done to Maori was particularly egregious. Maori inability to cope with unfair disadvantage has, is and will in the future cost the rest of society huge amounts of money, trouble (crime etc) and other societal costs such as health costs so the rest of us have already compensated them on a huge scale and will go on doing so for an indefinite period of time.

Where Maori own land or other assets they have the same rights as all of us. If the decision is made to compensate say the Chinese for the wrong done to them, I have no doubt that they will have no problems with some restrictions put on that compensation.

For those who will jump on me without comprehending what I have actually said, I have no problem with Maori being compensated for the wrongs done to them.

What I am saying is that given the massive cost of that compensation to the rest of society in the past, present and future  and the massive cost to the rest of society in the negative results to society of that disadvantage then we are entitled to preserve our rights as well.

 

by Andrew Geddis on October 14, 2010
Andrew Geddis

Mark,

Does common law give Irish Catholics or Chinese a claim to land under the doctrine of native title? If not, then however badly they were treated, they are irrelevant to this discussion. Point being, you are mixing up the political process of Treaty of Waitangi redress with recognition of property rights under the law we inherited from the United Kingdom.

Here are the relevant apples.

In law, those with property rights in the foreshore and seabed recognised through individual title can exclude anyone they like, or charge as much as they like for access.

In law, those with property rights in the foreshore and seabed recognised through customary title cannot exclude anyone, nor charge anything for access.

Even Chris Finlayson admits this is "an anomoly" in the law. But seeing as we're all jumping up and down about discrimination, I thought we might call it something different.

by Mark Bennett on October 14, 2010
Mark Bennett

@Mark - Andrew is right that your other reasoning is irrelevant. There are also strong reasons to resist it.

"Maori are being given special treatment i.e. they are being given access to land that was taken from them by force or dishonesty." So you actually mean that they are not being given special treatment - we usully recompense against force and fraud.

"They are also being given compensation including vast sums of money because they say, correctly, that they could not cope with colonization" I'm not sure that 'we couldn't cope with colonization' is really the basis for Maori claims.

"However there is almost certainly not a race or culture present in NZ who could not claim the same". Which other culture lost almost all of their land, and their rights of political self-government?

"Maori are the only ones being compensated, purely on the basis they were here first." Really. I would of thought that there were relevant differences (eg huge loss of land and political self-government, the guarantees in the Treaty of Waitangi, the common law) that warrant redress, rather than just 'we were here first'.

And who way saying that we should give compensation equal to the actual value of loss sustained. Treaty settlements are a tiny speck in comparison with that figure.

by stuart munro on October 14, 2010
stuart munro

In law, those with property rights in the foreshore and seabed recognised through individual title can exclude anyone they like, or charge as much as they like for access.

Does that mean that the Queen's chain is entirely extinct? Because access to waterways has been something like a customary right in contemporary New Zealand.

by Andrew Geddis on October 14, 2010
Andrew Geddis

Stuart,

Different things - the "Queen's chain" refers to a strip of land above the highwater mark. The foreshore and seabed is land between the high-and-low tide marks and permanently under the sea.

As for the existence of the Queen's chain, this might prove interesting:

"Equally mythological is the so-called ‘Queen’s chain’, said to be a 20-metre (or one chain) strip along the edge of waterways and coasts (and therefore above the high water mark or foreshore). This is believed to give a universal right of public access. Queen Victoria’s instructions to Governor William Hobson in 1840 certainly asked that places along the sea coast and navigable streams be reserved ‘for the recreation and amusement of the inhabitants’. But neither statute nor common law consistently established this as a universal right."

by Graeme Edgeler on October 14, 2010
Graeme Edgeler

I assume we have universal condemnation of a law change solely designed to prevent Maori doing something non-Maori are entitled to do?

Non-Maori with customary title are allowed to charge people for access, but Maori with such title are not? You're right - this is completely appalling and discriminatory.

If I understand the law 'change', all people with fee simple title to the foreshore and seabed will be able to charge for access, and all people with customary title to the foreshore and seabed will not be able to charge for access. So far, no discrimination :-)

Moreover, both Maori and non-Maori face the same conditions to getting fee simple title to the foreshore and seabed. Still good :-)

But only Maori will be able to go to court to establish customary title, and only Maori will be able to negotiate with the Attorney-General to get customary title. Ahh, this must be what you're getting at...

by Justin Maloney on October 14, 2010
Justin Maloney

Isn't the whole underlying concept behind customary title the fact that the court simple recognises it, not that it really grants it.

If I understand it right the common law doctrine just recognises that the land was actually owned prior to the establishment of the modern system of recording ownership. A 'native' who owned the land could then go to court to get their existing title recognised under the new system. Its nothing to do with a grant of land to Maori.

So if you take the view that customary title is a recognition of existing title, equivalent to fee simple, then it is discriminatory. The alternative is that the law extinguishes all customary title to certain land (which in itself is arguably discriminatory) and replaces it with a technically non-discriminatory system as Graeme aptly highlights :-).

Out of interest does the law really limit it to only Maori claims? If I acquired land according to Tikanga prior to 14 January 1840 and could prove the necessary requirements were met could I not make a claim with the court? Sure no such land probably exists... but in principle...

by The Falcon on October 14, 2010
The Falcon

The Maori Party has been bleating on for ages, promising that iwi won't charge for access to beaches. ACT is just making them back up their talk with some actual statute law.

Certainty is always good in the law.

by Mark Bennett on October 14, 2010
Mark Bennett

@ Graeme,

Your 'lack of discrimination' arguments depend on showing a relevant difference between customary title and fee simple title. What is that difference?

"But only Maori will be able to go to court to establish customary title, and only Maori will be able to negotiate with the Attorney-General to get customary title. Ahh, this must be what you're getting at..."

So in effect you're saying that a common law doctrine that says that when the Crown acquires territory it respects the property rights of the pre-existing inhabitants is discriminatory against others. Well, I guess, if there is no relevant difference between categories of 'people with property rights pre-existing Crown sovereignty' and 'people without such rights'. But I would say that is a pretty relevant difference.

by Andrew Geddis on October 14, 2010
Andrew Geddis

Falcon,

So if, for instance, telecommunications companies tell a select committee "we will keep our future price increases to the level of inflation", you'd be quite happy to see Parliament pass a law to hold them to their word? I'm surprised someone of your ideological bent is so cavalier with respect to property rights and freedom of contract. Because isn't there a world of difference between a property owner saying "I voluntarily will do X" and the State saying "you must do X"?

Graeme,

Hmmm ... different tune to the one you were playing yesterday. But I'll play it, too - Te Papa also didn't discriminate as any pregnant or menstruating men also would be invited to view the taonga at a more convenient time. Glad we've sorted that issue, then.

by stuart munro on October 14, 2010
stuart munro

Thanks Andrew,

My hope would be that the 70% partial access would not be steeply eroded by any change. It is probably reasonable to expect some loss of access with consolidation of Maori title.

Access to the Moeraki boulders, for example, changed under the new administration of the area, with a (not outrageous) fee for use walkway. Free access remains by taking a longer way than used to be normal - a small erosion to be sure - but significant to a pair of elderly friends, for whom the longer walk would not have been so easy.

As for the bill, I understand the motive, I wonder if it could not be broadened to resolve the problem: Formalise the access to the foreshore & waterways as a customary right, which may be suspended by the freeholder, (which Maori might want to do for Rāhui) but not charged for. Some kind of fudge factor for car parking or boat ramps might need to be permitted.

Of course, ACT would hate it.

by Graeme Edgeler on October 14, 2010
Graeme Edgeler

After yesterday's heat, today I tried for humour...

However, obviously the types of title are different, just as fee simple and fee tail were different.

Historically, a holder of entailed property could not sell it. What is the historical position with respect to customaryily-owned property?

Has customary title customarily (or ever) allowed the holders of that title to charge for simple access? I suspect it hasn't. If that is correct is there any problem in codifying the common law position?

by Andrew Geddis on October 14, 2010
Andrew Geddis

Stuart,

I, too, am a big believer in public access. In fact, I really like the Swedish "right to public access" approach. But I think you'll find here in NZ that it ain't Maori who are the biggest opponents to such access!

by The Falcon on October 14, 2010
The Falcon

Andrew

The foreshore bill is only being passed because of strong assurances that the public will still be able to access beaches for free. The people pushing for the bill are quite aware that guaranteeing free access is the price they must pay for the bill's passage.

I believe it's known as the doctrine of equitable estoppel? Promise + reasonable reliance on the promise = person who promised cannot renege on the promise, even if it was not a formal contract. But to simplify things, ACT is ensuring that the statute clearly states that the promisors must not break their word. There's nothing involuntary about it - the promisors are the ones who want the bill to pass in the first place!

Here is a quote from John Ansell from a Kiwiblog comment:

"For some weeks, Chris Finlayson has been misleading the nation by claiming in Parliament that his Marine and Coastal Areas (Takutai Moana) Bill contains the provision that no iwi may charge for beach access.

He has known all along that it most certainly does not.

Only thanks to various ACT MPs exposing his deception, most recently Rodney Hide on last night’s Close Up, do we now know that there is no such provision in the bill, though he has now been forced to agree to put one in (though with Finlayson, one needs to be VERY careful to monitor his precise wording)...

...

Pita Sharples pretends to be unconcerned that ACT has now forced Finlayson to include the clause (the one Finlayson pretended for weeks was already included), and pretends that ACT’s impertinence is more of an insult to Maori than any major policy loss.

But I don’t believe that. I suspect what ACT has done is remove a core plank of Maori Party policy: the one where they wanted iwi to have the right to exclude non-iwi from 2000km of beaches."

You should know that when there is big money involved, you can't just rely on honesty. Better to have some certainty in the law.

by Dean Knight on October 14, 2010
Dean Knight

Loving this thread.  Just saying. 

Equality - and its various different conceptions - is dreadfully hard. 

by Andrew Geddis on October 14, 2010
Andrew Geddis

"But to simplify things, ACT is ensuring that the statute clearly states that the promisors must not break their word."

So - in order to be absolutely certain that property owners won't exercise their rights of access-at-a-price (assuming they have such legal rights at all - not enough of an expert on this issue to answer Graeme's question, except to note that it is odd to go to all the effort to pass a law saying "the legal rule in place is the law"), the Act Party is championing a provision that applies to property owners of one race but not any other. And this is consistent with Act's core principles ... how?

Point being - why exactly does a Party committed to the idea of individual rights and private contracts between consenting adults care if Maori owners should happen to charge? Because there's been a lot of delighted crowing about "the Left's" hypocrisy in the last few days. Now let's see what happens when the shoe gets fitted to the other foot.

by Deborah Coddington on October 14, 2010
Deborah Coddington

Falcon: The Bill is not being passed "only because of strong assurances the public" get free access to the beaches. National and Labour both came to their senses and realised an appalling breach of property rights had taken place. Not only that, the Labour Govt had no right to usurp the judicial process. That was why Act took the unpopular stance, when Prebble was leader, of opposing the Foreshore& Seabed Act. We, and the Greens, were the only party to meet the hikoi when it arrived at Parliament.

Rodney Hide is behaving abominably. First he says  the new Bill is discriminatory because only Maori can apply for customary title. Not true:

"the Bill provides for the right to seek customary marine title to a specific part of the common marine and coastal area if an area has been used and occupied by a group according to tikanga and to the exclusion of others without substantial interruption from 1840 to the present day."

True, only Maori will probably qualify, but the Bill does not spell out that only Maori can try.

Secondly, I have had a QC cast his eye over clause27:

"confers on every individual the right to enter, stay in or on, and leave the cmca, to pass and repass in on, over and across the cmca, and to engage in recreational activities in the cmca. These rights are subject to restrictions imposed under enactments, such as the imposition, under clause 78, of restrictions for the purpose of recognising wahi tapu."

Inhis opinion, that clearly sets out free access, no charging.

Hide is being hypocritical. He's also trampling all over the graciousness and trustworthiness of his fellow human beings. It says a lot about his own trustworthiness.

by stuart munro on October 14, 2010
stuart munro

I notice that the Allemansratten is also the principle behind the Swedish position on the internet piracy.

...why exactly does a Party committed to the idea of individual rights and private contracts...

It's called a log rolling alliance. Traditional political partners unite against their traditional opponents irrespective of their notional principles, in expectation of later quids for their current pro quo. It is a species of corrosion of the representive function.

by Mark Wilson on October 14, 2010
Mark Wilson

I am sorry Andrew but your response indicates why academics don't get to make the decisions. Your argument is based on the Treaty of Waitangi on the basis that wrongs do not need to be righted unless it is covered by the Treaty. 

There are thousands of treaties signed since the Waitangi Treaty that are consigned to history's dustbin.

Regardless of the rights and wrongs of the argument the Waitangi Treaty only has effect if the majority of New Zealanders agree that it does. The UN's World Health Organisation's population studies indicate that Maori will never be anywhere near a majority and that their numbers as a percentage of total population will fall from 2040 on. Their actual numbers will fall from 2050.

Therefore matters that bring the treaty into disrepute such as the instances of the Tuhoe intimidation and "taxing" of hunters in the Ureweras ultimately hurt Maori, and the possibility of the closure of thousands of miles of beaches unless payment is made would be very damaging. 

Two wrongs don't make a right and allowing Maori to block access to thousands of kilometers of coast that is currently accessible for free is not only wrong but will ultimately hurt them. Wherever Maori have been able to charge for access they have, so why would this be different?      

There is a very large difference between what some consider by some the "correct" view and what can be made to work. The concept that the law or judges are in anyway the final arbitrator is manifestly wrong, particularly as in a global world they become increasingly more irrelevant.

Is there anyone who seriously believes that the new law concerning name suppression will work against the might of the Internet?  Or that New Zealand's financial affairs are decided in NZ? Or that Parliament can make laws that are unacceptable to our trading partners?

There can be no doubt that neither politicians nor Judges can make or enforce laws that are not supported by the majority.

Act has done us all a favour by clarifying the law and preventing arguments later. Hide has done himself further damage by his comments.  

by Andrew Geddis on October 14, 2010
Andrew Geddis

Gee, Mark ... that's an awful lot of words to say very, very little.

Let's start with your dismissal of "academics" (you seem very hung up on Universities, I must say ... but whatever). One of the benefits of being such is actually knowing what I'm talking about. And, as you've been told, this issue isn't based on Treaty rights at all - it's an issue of common law property rights. You don't know the difference, but that's OK - you just have to stop talking about it.

Second, the issue isn't about "blocking access to the coast". It's about rights of use below the highwater mark. And the claim that "wherever Maori have been able to charge for access they have" is flatly, patently, demonstrably false. Look here. Yes, some Maori have charged for letting others go accross their land, because it is their property ... just like Rainbows End charges you when you go there to play on the rollercoasters. Now, if you want to argue that Maori shouldn't be able to exercise the same rights as any other property owner in New Zealand, say so right here. Go on. Dare you.

As for the rest of your comment - well, maybe I understand now why your usual modus operandi is the single sentence insult/troll. Doesn't make a lick of sense, that I can make out anyway. Others might see different.

by Mark Wilson on October 14, 2010
Mark Wilson

Andrew if the reasoning is too complex for you to understand I cannot see that's my problem.

Of course it is a Treaty issue - no Treaty - no land is returned so no common law rights. I am sorry but that is so obvious!!!!! 

As to the rest of your "argument" as usual you play the man not the argument.

by Mark Wilson on October 14, 2010
Mark Wilson

PS - "One of the benefits of being such is actually knowing what I am talking about"

You have actually said that the two are automatically  related!

That doesn't strike you as a tad arrogant and narcissistic? It will everyone else.

by Andrew Geddis on October 14, 2010
Andrew Geddis

Mark,

If you mean that without the Treaty, there would be no basis for the common law to apply in New Zealand, then that's an arguable (but by no means universally accepted) position. But I don't think that is what you mean. I think you think this land is somehow being returned because of "the Treaty" and that the common law rights then apply. And this is, once again, plain wrong. The land at issue always was Maori owned according to the common law - a form of law that originates in the United Kingdom - and so isn't being "returned" at all. Simply put, the always existing (if not recognised) legal rights of Maori are being affirmed, and they would be so affirmed no matter how common law came to be recognised in New Zealand. Which is why in Australia, with no treaty between the Aboriginal peoples and the Crown, as well as Canada, which has some treaties but nothing equivalent to our version, the same legal rights have been affirmed by the courts.

Now, if it sounds "arrogant and narcissistic" of me to claim greater expertise in this area than you, well, sorry. But like I say - I know what I'm talking about.

Finally, it's hard to "play the ball" with you ... or, rather, it's like trying to play the Golden Snitch. And if you think I'm "playing the man" instead, go back here and revisit how you first came to this blogsite. You really have no cause for complaint - and you are free to leave it at any time.

by The Falcon on October 14, 2010
The Falcon

Andrew:

As Don Brash said at Orewa, the treaty should be honoured, but vested interests/judicial activists are increasingly pushing for a very dodgy interpretation of the treaty giving all sorts of special rights and privileges to Maori. Sure I guess the claims to the foreshore are technically "property rights", but in a very woolly, fuzzy sense.

Perhaps ACT sees foreshore claims as venal opportunism rather than based on genuine, solid property rights, and as such does not feel a need to promote them?

Deborah:

Same argument. I suppose to be completely squeaky-clean on upholding principles, ACT should support all property right claims, no matter how shady. Personally I think the line has to be drawn somewhere when judicial activists and do-gooders are creating "property rights" out of thin air, but I can understand why you would prefer ACT to take a rigidly principled line.

by Andrew Geddis on October 14, 2010
Andrew Geddis

"Sure I guess the claims to the foreshore are technically "property rights", but in a very woolly, fuzzy sense."

Ummm ... no. They are "property rights" in the same way that copyright is a property right. The application of those rights - where and when they apply, and what use is permitted under them - may raise tricky issues, but it doesn't change their fundamental nature.

Now, you can say it's all because of a shady conspiracy of "judicial activists and do-gooders" if you want, but isn't that coming dangerously close to saying "I'll defend legally recognised property rights when held by people I like, but if they go to people I don't then they have no value." Which is fine - but you'd better not start bleating when we nationalise the farms the day after the revolution!

by The Falcon on October 14, 2010
The Falcon

It's not about not liking people, it's about not liking the way the judges totally ignore the law in favour of political activism. If a maverick judge suddenly decided The Falcon had property rights to all NZ's mountains, based on some weak, flimsy notion or other, should right-wingers support it?

Surely you believe a line has to be drawn somewhere when deciding whether to recognise crazy court decisions made based on politics not law. I recognise there are problems if the government of the day makes the decision... some sort of neutral judicial activism committee may be the answer?

by Andrew Geddis on October 14, 2010
Andrew Geddis

Falcon,

Of course, if a maverick judge were to do that I would be concerned. But that's why we have a system of appeals, to undo such off-beam outcomes. And you need to recognise that the Ngati Apa decision (which recognised that some Maori groups can claim native title to very limited areas of the foreshore and seabed) was a unanimous decision of a 5-member bench of the NZ Court of Appeal. And the members of that bench just weren't the raving, PC "activists" you make out ... they just weren't.

Furthermore, the basis for their decision is a common law principle that has been recognised in the highest courts of Canada and Australia. So unless you think that somehow the top judges of three different countries all have been infected with some sort of left-wing political virus that caused them all to think the same thing, then you might need to accept that there's a pretty firm jurisprudential basis for the rights at issue.

Look - I'm fully aware that "law" and "politics" are intertwined beasts. But I also don't think you can collapse law into politics, or explain everything about judicial decisions in terms of the ideology of the judge. Politics may help set the social conditions in which the law operates, but the law also has an internal logic that operates irrespective of the political beliefs of the person applying it. Which is why a judge like this can issue a ruling like this.

Alternatively, if you do think that law is all about the politics of the person applying it, then what is the status of (say) Contract Law? Isn't it just the "politically activist" preferences of a bunch of long-dead right-wingers who happened to sit on the bench in the past, thus something that can be ignored 'cause the outcomes uphold capitalism? And if not - if it is "real law" - could you spell out the relevant test so that the rest of us can tell the difference?

by stuart munro on October 14, 2010
stuart munro

The Treaty makes clear and specific references to fisheries, which are granted to Maori in their entirety. But a fishery exists within an ecological and geographical area, and control of this area may in some cases need to be included - and may be included expressly in the Maori version, if they did not follow the European perspective of considering everything in isolation.

Treaty claims to the likes of radio frequencies might be considered dodgy, but the foreshore is on pretty solid ground -the moreso given that the Lockean notion of ownership (productive use) so often used to dispossess native peoples in this case works against the colonial English, who were not seafood aficionados, and did nothing to protect, develop, or exploit them. In fact, given the parlous history of fisheries management in NZ, Maori should probably dispossess the crown of its fisheries management role, arguing incapacity.

The Crown was not, nor should it ever have been in the habit of disregarding foundational treaties like Waitangi. It was a fairly standard form deal by the British Representative - and you can find an account of an essentially similar process in Hikayut Abdullah, which describes the treaty made by Raffles for the possession of Singapore.

by The Falcon on October 14, 2010
The Falcon

The left-wing political virus actually does seem to have spread throughout the Western world (e.g. in the USA,  judges have been increasingly willing to allow legislation that violates the constitution, since the "virus" began nearly 100 years ago)...

But I accept that not all the judges in the Ngati Apa case were activist types, and that law =/= politics. So perhaps I should be less critical of the court's decision. I appreciate your thought-provoking comments.

by Andrew Geddis on October 15, 2010
Andrew Geddis

Falcon,

I think it's a mistake to say that all decisions that a piece of legislation violates the constitution are "left wing". For example, the Supreme Court has struck down laws designed to protect coastal lands from development, laws prohibiting the possession of handguns and restrictions on corporate spending on elections - none of which are remotely "left-wing" decisions.

So, yes - the US court has become more "activist". But the political valence of this development changes over time ... and at present that "activism" has a distinctly right-wing bent.

by Mark Wilson on October 15, 2010
Mark Wilson

Andrew a number of my points went over your head so I will try to elucidate them for you ("that's an awful lot of words to say very, very little"). I am not insulting you here, it is just a statement of fact.

In the wealth creating part of society, where I am, robust and at times very forceful debate is the norm. Those who are too fragile to deal with it fall by the wayside. That is a fact of life. They go away and find something to do outside that arena. 

I apologize for failing to realise quite how much in the wealth consuming part of the economy, (including academia,) fragility is the norm. Again, I am not insulting you, I accept that your world has different standards. It is a given that academics generally have poor records in the cut and trust world of business (and yes I can give you examples such as the two Noble Prize winning academics who have made complete idiots of themselves in the business world recently.)

I am not in the slightest phased by your insults. Bring it on. As I am not allowed to mock you directly, as is the honest and normal way in the real world, I was mocking you indirectly. I have no problem with you mocking me directly.

In particular I was bringing to your attention your touching belief that the treaty, the law (as in common law) or the judiciary have any power over the citizens if they decide otherwise. As partial evidence of this I was pointing out just a few of the many areas today where NZ law (common or otherwise) has no influence. The concept that the "the highest courts of Canada and Australia" have any influence in the real world of New Zealand is incorrect. Surely even you accept that the laws are made by parliament and that no law or court has any ability to actually enforce anything and their influence is waning as the world (and NZ) globalizes.

NZ politicians are continually making law that are routinely ignored by the wealth creators. I am not saying it is right, but it certainly is the reality. To believe otherwise is naive.  

My point remains the same, if Maori or those acting on their behalf alienate the majority then changes will be made and common law, the treaty et al will be irrelevant. You obviously disagree.

You are wrong to say i am hung up on Universities. However most academics should be mocked because too many of them fail to realize that their students are fully aware that the way to get the best marks is simply to pander to their teachers prejudices. This creates a cocoon where many academics think that their point of view is the only rational one of "intelligent" people.

In truly great universities such as Harvard and Oxford they welcome alternative and even forceful views and just reinforcing their teachers views  does not get the best marks.

If you are right that common law means that the area in question here is only being returned to it's proper owners then clearly you must also believe that all of NZ must be returned to Maori. What difference is there between the seabed and foreshore and the rest of NZ? They are all covered by common law. The two issues otherwise contradict each other.

I was also trying to point out to you that the debate over how the treaty and common law covers Maori rights to the seabed and foreshore is irrelevant. What is relevant is whether hair splitting arguments attempting to justify different treatment for different racial groups will ultimately end in failure. You don't agree that it will. Time will tell.

Your comment was that being an academic meant that you know what you are talking about. No reference was made to knowing more than me. Please check what you wrote. I would argue that merely being an academic does not in any way guarentee that an academic knows what they are talking about.

Philosophy 101 includes illogical arguing techniques, of which two are arguing from authority and ad hominem arguments. Just thought you should know.

I have an honest and serious question and I and no doubt your readers would like you to give an honest and serious answer. Do you think that it is at least theoretically possible that someone could have views that are diametrically opposed to yours and be more intelligent that you?

 

by Andrew Geddis on October 15, 2010
Andrew Geddis

"Do you think that it is at least theoretically possible that someone could have views that are diametrically opposed to yours and be more intelligent that you?"

Yes. Not just theoretically, but in practice I suspect this state of affairs is reasonably common. My comments in this thread have been specifically related to the topic at hand, and your misunderstanding of it. Hence my claim that I know more about it than you - I think I've demonstrated that to be a fact.

However, this says nothing at all about any other discussion with any other persons on any other topic whatsoever.

Do you feel better now?

(BTW: When you say, "In truly great universities such as Harvard and Oxford they welcome alternative and even forceful views and just reinforcing their teachers views  does not get the best marks", I know this to be true from first hand experience. I also know from first hand experience that your account of New Zealand Universities - "their students are fully aware that the way to get the best marks is simply to pander to their teachers prejudices" - is flat-out false. That's a view usually held by people who haven't got very good grades, think they "deserved" better, and so look for a convenient excuse as to why this didn't happen. Just sayin'.)

by The Falcon on October 15, 2010
The Falcon

Andrew

You misunderstood what I said, I said the opposite of that. To put it another way, if you look at the US constitution as a paragon of right-wing ideals, every time a left-leaning judge does not strike down questionable legislation (e.g. the "new deal"), the constitution is eroded slightly.

Yes there are still judges who are prepared to strike down left-wing gun control laws, but generally the US courts have allowed a lot more left-wing legislation over the years since the "virus" began.

I would say the "virus" has affected all other Western countries too, to an extent. But yes I doubt the entire NZ court of appeal could be called 'activists'.

by Andrew Geddis on October 15, 2010
Andrew Geddis

Sorry, Falcon ... I did misread your comments. Point taken.

It's an interesting question, what does the US Constitution "mean"? We could get into the originalist vs. living document debate, but it's almost the weekend and I'm tired.

by Mark Wilson on October 15, 2010
Mark Wilson

Andrew, I tip my hat to you for not throwing the toys out of the cot.

by stuart munro on October 15, 2010
stuart munro

While there is something in what you say Andrew,

...is simply to pander to their teachers prejudices" - is flat-out false. is putting it a little strongly. Not buying a lecturer's cherished line is sure to be uncomfortable.

Try running head on into a contemporary humanities course if you happen to have run across the law of the excluded middle and so stand your ground against the 'discourses' - feminism, postcol, postmod, etc.

You will get called everything under the sun.

by Richard James McIntosh on October 15, 2010
Richard James McIntosh

Great thread, but I think some of you are confusing the current process about who has Crown title for the land between Mean High Water Springs (MHWS) and the 12-mile limit, with the idea that holders of Crown title for land above that mark may block access to the sea.

Firstly, It's simple! In NZ if it's not your land you need permission to cross it, and you might have to pay for it! You lot who are so hot on property rights ought to understand that. That's how we have set things up in this country. No 'right to roam' exists. Public access takes the form of incrementally negotiated, legally binding land transfers, such as through the RMA, or the old Sale of Land Acts.

Check out what Wayne Brown, mayor of the Far North and fulltome right-winger, has to say: http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10662936

Secondly, and to the point, the law which strips rights to charge from Maori owners of Crown title is simply another shafting of these people by the Legislature.

The Courts and the Legislature have worked well enough for the benefit of the Pakeha since the time of direct rule from Britain, but the minute, no the second, that the process was percieved to be useful to Maori, fast moves were pulled, and a person's day in Court blocked.

It adds up to a tremendous amount of hypocrisy, and it's wrong, dammit!

p.s. remember that Legislative and Judicial interference in the affairs of Maori holders of Crown title has been the norm in NZ.

"The Maori Affairs Amendment Act 1967 introduced compulsory conversion of Maori freehold land with four or fewer owners into general land. It increased the powers of the Maori Trustee to compulsorily acquire and sell so-called uneconomic interests in Maori land." (www.nzhistory.net.nz)

My last word: British, and then NZ Governments (for those who are Pakeha: our ancestors) have fought long and hard to achieve the state of things as they are. Why continue to focus all this fury on other New Zealanders, when we've clearly dropped the ball with regard to foreign absentee landlordism in our own land. Mark Wilson, I believe your Irish ancestors would agree?

by Richard James McIntosh on October 15, 2010
Richard James McIntosh

And one more thing. The Maori holders of Crown title around the Parengarenga Harbour in the Far North have some title to land down to Mean Low Water Springs, i.e. the entire beach.

If the heroic - and if we are to believe the hype, last minute - ACT amendment strips their existing right to charge for access, what do you say to that?

Nit-picking, surely :-)

by Andrew Geddis on October 15, 2010
Andrew Geddis

First up, thanks for your comments, Richard. Nicely written.

Second - Stuart: "Not buying a lecturer's cherished line is sure to be uncomfortable."

It depends what you mean. If a student in my public law course asserts that a Supreme Court ruling is not valid law in New Zealand because it goes against the will of Allah or is not what Justinian said, then yes ... they will be in an uncomfortable situation. That is because in that class, according to the tenants of the discipline of law as an academic subject, their position is an invalid one. No matter how fervently they may believe Allah's will is the truth, or that Justinian's legal code is the sole basis for contemporary law, their views are plain incompatible with "what
we teach" (i.e. the practice and understandings common to lawyers).

Now, that's a quite different issue to someone who, in my public law class, argues that Don Brash was correct in his arguments about the place of the Treaty in NZ and how our public institutions should be structured. I may (and do) disagree with that claim, but it is one that accords with the standards and practices of the discipline of law. Consequently, provided the student can back up their views in terms of providing arguments derived from the corpus of legal material and argument (in the same way as a student who thinks the Treaty ought to be an integral part of NZ's legal order would need to defend hers or his), then my personal agreement or disagreement with the political nature of the claim is irrelevant to how it is assessed and graded.

Of course, students often don't "get" how the discipline they are studying actually works. So they assume it's all about "telling the teacher what the teacher thinks and wants to know". To an extent that is true - I want students to tell me legal arguments, backed up by reason and evidence (as those are understood from an academic legal perspective). But it's not true with respect to the actual substantive content of their arguments ... what really will be successful is evidence the student has internalised the practices of the discipline and applied them in his or her own, independent fashion, irrespective of what position they are arguing.

You then make some claims about the nature of "contemporary humanities course[s]", claiming that these have no room for arguments that are not "discourse" related. I have may doubts that things really are as you make out ... the old trope of the humanities as stuffed full of zealous and doctrinaire neo-Marxis/Feminist/Post-colonialists strikes me as a bit tired these days. But let's imagine there is a lecturer who is, for example, teaching "Post-colonial literature", and in that class she makes it clear she will view with a hostile eye anyone who argues that post-colonialism as a discourse is a load of tosh. So what? Isn't that  like the student in my public law class who wants to dismiss the reasoning of the judges in a case on the basis that Allah says different? You just can't expect to, in a classroom that is teaching a subject from a particular disciplinary perspective, be able to say "I reject this basic disciplinary perspective". That's not an issue of political bias (or, it ought not to be such), rather its an issue of what it means to engage in academic study in the first place.

Point being - academic disciplines are not places where "anything goes", in that they are not unbounded free-speech zones where students can make any old claim they wish to and try to argue for it. Instead, they are just what they say - disciplines - in which certain methodologies and truth-claims are/are not accepted and particular arguments are/are not considered valid. Now, you can always say that certain subjects shouldn't be recognised as such - for example, that post-colonialism shouldn't be taught in Universities - but that is, with respect, not your call. It is, instead, a matter for the relevant discipline itself to determine in terms of its own internal standards and practices.

Put simply - if the humanities departments have now become stifling institutions of PC thought and "discourse" reasoning, then that is what the humanities now are as academic disciplines - and people who disagree with the basic tenants of those disciplines just shouldn't expect to find a place within them. For the moment, anyway.

(Incidentally, these aren't really my ideas (or, at least, I didn't invent them out of whole-cloth). I pretty much agree with the US theorist Stanley Fish on the issue. He's discussed it (and related topics) here and here.)

by Justin Maloney on October 15, 2010
Justin Maloney

Perhaps treading on dangerous ground here, but Mark I think made an interesting point which I am not sure anyone has actually responded to... As a non-academic let me try to play devils advocate and rephrase...

It doesn't matter what the "law" is if the people don't agree with it (so Andrew, your superior legal knowledge is hereby neutralised). The only power law has is of peoples acceptance of it, in particular those in positions of power or control (which 'academics' aren't so please accept your inferior position as a mere commentator on others actions).

What constitutes a right is ultimately determined by the people, not by academics, lawyers, or even politicians.

Parliaments legitimacy relies on Acting on the majorities wishes, the only "law" that exists is the will of the people. When Parliament Acts it is simply codifying that will.

Maori have no right to "customary title" because despite what an ancient "law" might say the majority of people in New Zealand say they have no right, so Maori have no right. It doesn't matter what some academic or lawyer might say.

Anyone who disagrees is a bleeding heart lefty who probably eagerly pandered to the delusions of grandeur entertained by their jumped up university lecturer in order to pass with better marks than real thinkers and knows nothing about the real world so should just shut up and go home.

...at least I think that's the crux of what he was saying, might have made that last part up myself... and to ask the question I think was fairly, if very indirectly, being asked...

If the common law doctrine could rightly be called a 'simple nullity', then why should someone whose only qualification is having an ancestor who went fishing somewhere 150 years ago have a right in property to the land under that water?

How can that person have more rights to the land than me who has lived here all their lives, whose ancestors arrived here over 100 years ago? Whose people have successfully run the country for the last 150 years?

Surely this is discriminatory and the only thing Parliament is trying to do is represent the will of the people and remove the discrimination, while still being forced to pander to some of the aforementioned bleeding heart lefties because some idiot voted for MMP nearly 20 years ago.

by Graeme Edgeler on October 15, 2010
Graeme Edgeler

If the common law doctrine could rightly be called a 'simple nullity', then why should someone whose only qualification is having an ancestor who went fishing somewhere 150 years ago have a right in property to the land under that water?

That's not a basis for customary title. To establish a customary title it must be proved that the use is continuing since 1840. If 40 generations of your hapu or iwi fished somewhere, and they stopped five years ago, then you're out of luck.

by stuart munro on October 16, 2010
stuart munro

@Andrew,

It is at least a better argument than I heard at the time. But the public have standing in issues like the movement from enlightenment value based theories of racism, feminism, and the like to discourse based models - because they are affected.

The enlightenment based models derive their moral authority from principles like equality and liberty. The discourse models are not properly normative; they must be alive to the possibility of counter narratives. This tolerance is not everywhere apparent.

I managed to avoid post col because it was clearly labelled - but ran across rather too much postmodernism elsewhere - doing literature - all I wanted to see was the canon.

And our little stoush about what constitutes racism - this too, I believe, springs from different definitions -mine being the conventional one of the preceding period. Which might give you a less uncharitable explanation for the levels of support for some parts of Henry's position.

But thank you for the explanation.

by Mark Wilson on October 16, 2010
Mark Wilson

Andrew you are absolutely right that academic disciplines are not intellectual free for alls and that if you don't agree with certain basic premises then you don't qualify for that course.

However is is incredibly sad for New Zealand that "Put simply - if the humanities departments have now become stifling institutions of PC thought and "discourse" reasoning, then that is what the humanities now are as academic disciplines - and people who disagree with the basic tenants of those disciplines just shouldn't expect to find a place within them. For the moment, anyway."

Go listen to humanities or law lectures at Waikato where they operate on the simple premise that everything must be seen and referenced to in the terms that whitey is bad and Maori is good.

I could care less personally but it is sad for their law gradutes who are unaware that they are seen by  the legal professsion as suitable employees only for either Maori organisations or as fodder as bottom of the heap fileing clerks. 

Their humanities graduates are unemployable other than as Labour MPs, teachers or employees of the teacher unions. 

 

by Andrew Geddis on October 16, 2010
Andrew Geddis

Justin,

There are the questions of "what is indigeneity" and "why should indigineity matter"? These are tough questions that would take a lot of words to deal with, and it's a sunny Saturday here in Dunedin ...

However, those questions aren't directly implicated in the debate over the foreshore and seabed. It proceeds according to this logic:

(1) When the Crown arrived in NZ, it recognised that Maori had property rights in their lands (see the Treaty Article 2, plus the common law doctrine of native title).

(2) That property right continues until such time as it is either removed (voluntarily or not) or the basis for the legal right is lost (i.e. Maori no longer engage in the customary practices that are the basis for title at common law).

(3) In the case of the foreshore and seabed, the common law was never replaced by statute (i.e. the property right was not extinguished) and some (but only some - probably very few) Iwi continue to meet the basis for establishing the right.

(4) Hence, in law, there is nothing to stop Maori having their property rights recognised in law with respect to the foreshore and seabed only (any claim to any other land has been extinguished by statute).

Now, I get your point that "the public" may dislike this state of affairs - either because they misunderstand it ("The Maoris are going to get the beaches!") or because they have concerns about events 170 years ago determining the present. Hence the Foreshore and Seabed Act (and its current formulation). And of course, in NZ Parliament is sovereign, so it can do this. However;

(1) People need to be aware of what they are doing - they are changing the law to remove what are validly established legal rights from one (and only one) group in society. No amount of tap-dancing can get you away from that point.

(2) In Europe, it is not uncommon to hear farmers boast of how the family farm has been in the family for (say) 300 years. Is our response to that claim: "But that's ridiculous! Why should what happened 300 years ago allow you to continue to possess and use that land! We need to legislate immediately to undo that sillyness!" No, it isn't ... instead we spend several thousand dollars to buy tickets and hotel rooms, so we can go on tours and revel in "the history and culture" of the place.

by stuart munro on October 16, 2010
stuart munro

Agreed. The legislation stinks, it is as fundamentally flawed as the fishing industry union coverage act was.

by Justin Maloney on October 16, 2010
Justin Maloney

So my ancestors legally acquired some land under the laws in place at the time, then some years later there was a change in power and a new legal system introduced.

The new rulers affirmed that my ancestors rights to the land they owned was protected. If I chose I could go to one of their new courts and they'd give me a piece of paper to affirm it. But this was optional and my ancestors chose not to go to the trouble. The new system was flawed as it required one owner, whereas my lands were communally held which made things tricky. Also unless we wanted to sell it there wasnt any point, and we didnt want to sell.

Anyway, my ancestors keep on using the land they own for the last 160 years and everyone is pretty much happy for generations. I, along with my extended family, end up inheriting the land.

Then all of a sudden these relatively new rulers decide that my ownership should not be equal with other peoples. That restrictions on normal their normal property rights are required to protect citizens interests.

People are scared I will stop them exercising their right to access my lands. Although I am a little confused about where they got this right over my land from I am even more confused about why I would stop them now? My family have granted them free access for generations, often to the detriment of my lands and people.

In fact I understand it is the 'new property owners' who recently purchased land that have been restricting access. Yet there seems to be no call to stop them doing this, just to prevent me from joining them?

I understand I have no rights to land that was not owned, and continued to be wholly owned by my family. This is logical. But for land where I meet all the very strict requirements of ownership, requirements that are already stricter than those for other people, why do I need to have my rights removed?

No need to answer, the sun is shining and I had no intention of exercising this right that other people have anyway. But in principle at least, I struggle to see how I am not being unfairly discriminated against.

by The Falcon on October 18, 2010
The Falcon

http://www.kiwiblog.co.nz/2010/10/herald_praises_act.html#comment-754247

A comment from Rodney Hide at Kiwiblog. It helps to clear up ACT's position, everyone who has been commenting in this thread should read it, to hear ACT's side of the story.

by Mark Bennett on October 21, 2010
Mark Bennett

Andrew,

"Point being - academic disciplines are not places where "anything goes", in that they are not unbounded free-speech zones where students can make any old claim they wish to and try to argue for it. Instead, they are just what they say - disciplines - in which certain methodologies and truth-claims are/are not accepted and particular arguments are/are not considered valid. Now, you can always say that certain subjects shouldn't be recognised as such - for example, that post-colonialism shouldn't be taught in Universities - but that is, with respect, not your call. It is, instead, a matter for the relevant discipline itself to determine in terms of its own internal standards and practices.

Put simply - if the humanities departments have now become stifling institutions of PC thought and "discourse" reasoning, then that is what the humanities now are as academic disciplines - and people who disagree with the basic tenants of those disciplines just shouldn't expect to find a place within them. For the moment, anyway."

I am not sure that this gets to the heart of what academia is all about, which (in my view, and if such a purpose or aim can be attributed to every department of a university) is a place where the only authority is that of the better argument.

If there are university departments that stifle argument about and criticism of their dominant methods, that is a problem for those departments. It is fine for people within a department to believe that one argument, method etc is the one that has the best reasons and justification behind it. But it is not fine for that person to evaluate arguments otherwise than on the basis of the research and thought that has gone into them.

 So I agree with Mark Wilson that academics must "welcome alternative and even forceful views" and that "just reinforcing their teachers views [should] not get the best marks." A good critique of the orthodoxy -note that this presumes understanding of that orthodoxy - is a wonderful thing.

However I disagree with Mark Wilson's assessment of the present state of universities in NZ in this respect.

Also, I found this amusing: "It is a given that academics generally have poor records in the cut and trust world of business". Lucky that the education they invested many years in is going to be used in academia then, rather than in the business world...

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