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(en) New Zealand, Dissident Voice* #7 - The Wet Pa-tch: No confiscation in our time!

From Worker <a-infos-en@ainfos.ca>
Date Fri, 24 Dec 2004 12:23:01 +0100 (CET)


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On 18th November the government passed the Foreshore and Seabed
Bill. Legislation of this kind comes from a colonial mindset that was
unacceptable in the nineteenth century and is utterly repulsive in 2004.
The Foreshore and Seabed Bill is unjust and oppressive, and we must fight it.
This article will examine the Bill and the need to prevent it from being enforced.
The government has stepped in and halted a legal process, taking away the
right of Maori to go to the Native Land Court regarding ownership of the
foreshore and seabed. The debate started with the disputed right of
Marlborough Maori to have economic enterprise. They wanted to
establish a mussel farm, but were constantly put off by the local council.
‘In June 2003, the Court of Appeal ruled that Maori customary title to
foreshore and seabed had never been legally extinguished and could be
investigated by the Maori Land Court.' 1 However the government, in a
colonial mindset largely unchanged since the 19 th Century, stepped in
and broke the legal process. They said they would ‘introduce
legislation to make the foreshore and seabed ‘public domain.'' 2
Immediately, the government engaged in a campaign of socially divisive
misinformation. Helen Clark started talking about keeping ‘the
beach,' trying to instigate a swell of objection from Pakeha New Zealand.
The government carefully moved the discussion of this issue from the crux
– the obligation to abide by the treaty of Waitangi – to the
non-issue of public access to beaches. This contestation is not over the
sandy beach but ‘the wet pa-tch.' The foreshore is the area between
the high tide mark and the low tide mark; the seabed is from low tide out
to sea. This is not something that Maori were trying to take; the wet
pa-tch belongs to them. The Treaty of Waitangi re-affirmed this in 1840
(Article 2, both versions). The Bill that was passed on the 18th takes the
foreshore and seabed and places it under Crown ownership: an act of
raupatu.

Raupatu/confiscation is theft; theft akin to that which occurred in the
mid-nineteenth century. Legislation around the New Zealand Wars led to
huge land losses for Maori. The 1863 New Zealand Settlements Act
enabled military courts to confiscate land. 3 Approximately 800,000
hectares were taken from Iwi such as Taranaki, Ngati Awa and some of
Waikato. 4 In 1865, the Native Lands Act established the Native Land
Court. 5 Maori had to prove ownership of their land, in order to be
granted a certificate of title. Claudia Orange explains that the ‘costs
of taking claims to court, of getting land surveyed, and other expenses
often got Maori leaders heavily into debt. To repay loans they had to sell
land.' 6 This also had huge significance in the dispossession of Maori
land. By 1892, Maori ‘owned only a little over a third of the North
Island, about 4.5 million hectares.' 7

Not only does the Bill break the Treaty and constitute outright theft, but it
is also racist, and does not guarantee local ownership or public access.
The legislation discriminates against Maori. While they will have their
land confiscated, the part of the foreshore already owned by a small
number of individuals (including off-shore owners) will not be touched.
The foreshore and seabed is at risk once taken from Maori. For example,
there is the possibility that the government will sell parts of the foreshore
and seabed off to international investors. This would require an Act of
Parliament, but this had not been a hindrance in the past. According to
Moana Jackson, ‘land could never be sold or alienated under a
customary rights regime based upon and properly exercised through
tikanga. That prohibition has been one of the few effective barriers to the
large scale privatisation of assets undertaken by the Crown since the
1980's.' 8

There are other important reasons Maori and Non-Maori fight this
legislation. The Bill leaves Maori with overwhelmingly meaningless
‘rights', and the concepts have been framed from the Crown's
perspective. The Foreshore and Seabed Bill extinguishes Maori
Customary title and instead replaces it with what Jackson has called a
‘mirage of recognition'. ‘It replaces them with a court hearing
that actually mocks due process by stating that Maori will effectively only
get the rights they would have had if the Crown hadn't taken them away.'
9 This talk of ‘rights' has been framed from only one side. Ideas
such as ‘customary title' and ‘customary use' were not developed
from traditional Maori concepts. 10 Rather they have been imposed by
the Crown. There has even been an arbitrary date set, of 31 December
2015, beyond which even these ‘rights' will be denied. To prove these
‘rights' will be almost impossible.

The Bill is incredibly restrictive in its ‘provision' of ‘rights'.
Despite the government's propaganda that would make it appear
otherwise, the Amendments have made the Bill even more draconian. 11
Only specific use rights will be accepted. Spiritual connections or
customary authority will not be recognised. 12 Even if it is the case that
these are manifested in physical activity, the practice must be ‘integral'
to tikanga Maori, and not have been ‘substantially interrupted'. 13
Likewise, if the iwi/hapu/whanau does not own the adjacent land, then the
land right is also extinguished. This is removing the jurisdiction of the
High Court and Native Land Court to investigate claims to the foreshore
and seabed. 14 The government has acted to nullify the High Court
decision of June 2003. Indeed, they are reasserting the Ninety Mile
Beach decision. In 1963, the Court of Appeal ruled that Maori rights to
the foreshore were extinguished when the land adjacent to the high-tide
mark was under English title. 15 This decision was legally incorrect.
Further, as explained in the Te Ope Mana a Tai Analysis, the Bill pretends
that Maori never really owned the foreshore and seabed. Had the Bill not
been passed, then Maori should have been entitled to transfer their
ownership into fee simple title through the Native Land Court. However,
now the High Court can only find that Maori would have had
‘exclusive occupation and possession of a particular area' at the level
of common law. 16 No compensation for stealing this land is
mentioned. Even if negotiations are entered into with the
Attorney-General and the Minister of Maori Affairs, there is ‘no
sanction against the Crown if the Crown refuses to provide redress or
compensation satisfactory to the application group'. 17

Such worsening of the Bill proves the government's decision to utterly
disregard the legal struggle of Maori and Non-Maori. There have been
hui/meetings and letters to MPs and government ministers. There were
submissions. Ninety-four percent of those who gave submissions to the
Select Committee opposed the Bill. Maori have also taken complaints to
the United Nations. This rights-based channel was available and has
been used by those who oppose the Bill. There has also been a huge
protest movement.

Thousands have protested against this unjust Bill. The Hikoi 2004
marched down the roads of Te Ika a Maui (the North Island). Begun by
Ngati Kahungunu, and added to by the Far North, the Hikoi was joined by
thousands on the way down Te Ika a Maui. More than 15,000 marchers
arrived in Wellington on May 5 th to go to Parliament. Hikoi Tuarua,
held in Auckland on October 16 also drew a large crowd. The crowds
have chanted: No confiscation in our time!

Obviously this is an injustice that Pakeha need to fight too. As well as all
the other previously mentioned reasons, Pakeha anarchists should support
this kaupapa. Here is an existing battle against state oppression. By
joining this, it helps to build the movement of those fighting the state. If
the Bill is halted, then the possibility of further private ownership of the
foreshore and seabed is destroyed. Perhaps to join this struggle with
actual action, it is necessary to be ‘little-a anarchists'; rather than
being caught by labels, we must join this struggle against oppression.

What can be done to support this fight? The recent axe attack is an
example of a solidarity action taken by Pakeha. An axe was thrown
through the window of the Auckland electorate office of Prime Minister
Helen Clark – ‘believed to be a protest against the Government's
Foreshore and Seabed legislation'. A note left at the office ‘was
believed to claim the broken glass symbolised broken faith, broken trust
and shattered justice and the axe represented the steadfastness of their
determination'. (Posted on www.indymedia.org.nz on 18 November
2004). This was direct action against oppression.

Pakeha must involve themselves in this struggle. Right now, Maori are
being done over by colonial legislation reminiscent of the mid-nineteenth
century. The Bill is confiscation. It breaks the Treaty of Waitangi, is
racist and does not guarantee public access. The whole thing is
shameful. The Amendments have made it more draconian, despite all the
opposition that has been voiced. Before the passing of the Bill, there was
legal struggle and a protest movement. Now, we must join any actions
that oppose this Bill. This is injustice and we must fight it.

Francie Mountier
=====================================
# Aotearoa Dissident Voice - New Zealand's most unrespectable
revolutionary rag. Aotearoa Dissident Voice is a free volunteer-run
magazine that aims to provide an open space for the free flow of
anarchist and libertarian left news, analysis and creativity.
www.dissidentvoice.org.nz edcollective@dissidentvoice.org.nz


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