Seabed, Foreshore And Politics -- Ken Shirley
Address to ACT Central Regional Conference, Awatea Conference Centre, Palmerston North, Sunday 9 November 2003
Good morning and welcome.
It is always a pleasure to address an ACT conference. We have had a series of very successful regional conferences this
year and I am sure today's conference here in Palmerston North will continue that success.
They say a week is a long time in politics and certainly this past week has proven to be extremely eventful.
Last Tuesday was Don Brash's first day in Parliament as the leader of the National Party. He has made a good start. We
are hopeful that under Don Brash's leadership the National Party will become invigorated and gain momentum. Don Brash
has always championed ACT values and principles. He shares our passionate view on the paramount importance of freedom
and choice. He shares our belief in more market and less government. He supports lower taxes, reduced welfare dependency
together with choice and excellence in education.
I believe the Parliamentary ACT team can work very closely with a Brash led National Party and expand electoral support
for centre-right policies. The country is waking up to the long-term damage that Labour's polices of big government and
state dependency brings. It is the private sector and not government that creates wealth and prosperity.
Some have said that ACT will become less relevant with a Brash led National Party. In fact the reverse is true.
Politics is not a nil sum game. ACT's role as a strategic apex in New Zealand's right of centre-politics is enhanced by
a vibrant and effective National Party. We look forward to further developing that relationship.
Also last Tuesday former ACT MP Donna Awatere Huata was arrested and charged following a nine-month investigation by
the Serious Fraud Office. The charges relate to the misuse of monies belonging to the Pipi Foundation and the attempted
cover-up of that misuse.
Mrs Awatere Huata was suspended from the ACT Caucus last February when she could not satisfactorily explain her
activities and involvement to the ACT caucus and because of the lies that she told us. It was the leadership of ACT that
first called for the Auditor Generals inquiry into these activities.
The Auditor-General's report was tabled in Parliament on Thursday. It is a damming report revealing the sum of $1.98
million was paid by six government agencies to a variety of trusts that Mrs Awatere Huata has been associated with since
her election to Parliament in 1996. We were shocked to hear of the extent of her interest and involvement.
In 1999 when I learnt that she was applying for government monies for the Pipi trust,
I wrote to her formally as Party Whip. I instructed her to maintain full transparency and accountability at all times
and told her to ensure that at no stage could there be any suggestion that she, her family or close associates would
derive any pecuniary benefit from the taxpayers money paid to the trust. Assurances were given but regrettably they were
false assurances.
The lack of transparent tender processes, minimal controls and audits by Government departments is a scandal in itself.
Far too much of taxpayers hard earnings are being misdirected and wasted.
Mrs Awatere Huata is no longer a member of the ACT Party or the Parliamentary Caucus. The question of criminal charges
against her will be determined by the Courts.
The ACT Caucus is working very hard and is in good heart. We have a fantastic staff in Wellington and all work closely
with officers of the Party. Two weeks ago we had a very successful Caucus retreat and have confirmed our strategic
direction and programme.
Our crime survey has proven very successful with over 22,000 responses. The education survey, another core policy area
for ACT, is underway and we are anticipating a comparable response.
The Labour Government has no clear programme. It is progressively alienating sector group after sector group. The fart
tax fiasco reminded those in the farming community who needed reminding that big government socialists are not their
friends. The health sector is in a much worse state than when Labour came to power four years ago. The only thing we
have more of is bureaucracy and waiting times.
One issue which highlights this governments muddling is the foreshore and seabed conflict.
On the 19^th of June this year the New Zealand Court of Appeal released the long awaited decision declaring that Iwi in
the Marlborough Sounds are entitled to go to the Maori Land Court with their claim for customary title over areas of
foreshore and seabed in the Marlborough Sounds and extending to the limits of New Zealand's territorial sea.
On Monday 23 June 2003 two working days after the Court of Appeal decision, the Prime Minister Helen Clark and Attorney
General Margaret Wilson both publicly asserted that the foreshore and seabed is indeed owned by the Crown and if
necessary the government would legislate to remove doubt.
The country sighed with relief. That mood was a reflection of the relief felt when a month earlier, the Prime Minister
asserted Crown ownership over oil and gas reserves based on the 1937 legislation, following a recommendation of the
Waitangi Tribunal that Maori had a legitimate claim.
Any feeling of relief was short lived. The government buckled to political pressure from Maori, rapidly abandoning its
initial assertion of Crown ownership and floating a nebulous concept of "Public Domain" owned by no one. This creates a
political, social and economic vacuum. Nature and politics hates a vacuum.
Following the initial impasse some extreme Maori, including cabinet minister Tariana Turia have asserted absolute and
exclusive Maori title over the foreshore and seabed with a promise to share with non-Maori. Some even went so far as to
declare Maori sovereignty over the seabed stretching to the ancestral lands of Hawaiki. If nothing else, that claim
confirmed that like all New Zealanders, Maori too are immigrants to this land.
During this period the government attempted to obfuscate the issues and in particular conveniently seized upon the
report of the Land Access Ministerial Reference Group chaired by John Acland.
This report proposes the affirmation of the Queen's Chain to ensure access to our beaches and waterways. The issue
surrounding access through and over private property are however quite distinct from ownership of the foreshore and
seabed itself. After all, if the Crown does not own the foreshore and seabed on behalf of us all and Maori do have
exclusive and extensive title as some claim, then the concept of public access to the commons is out the window because
it is no longer "commons".
In other words the very concept of the Queen's Chain as a 20 metre esplanade reserve above the foreshore implies that
the inter tidal foreshore and coastal waters beyond are vested in the Crown for the enjoyment of us all. There are a few
existing fee simple freehold titles extending into these inter-tidal zones and seabed but these comprise a very small
proportion of the New Zealand coastline.
In the two months following the Appeal Court decision the Government engaged in a series of consultative Hui with
Maori, several of which had to be abandoned, and all resulted in an absolute rejection of the Government's proposals.
Most New Zealanders are wary and increasingly intolerant of the self-perpetuating treaty of Waitangi grievance
industry. We do however not blame the treaty but rather the politicians and judges who have spent the last two decades
redefining it in a climate of PC guilt.
The three articles of the Treaty of Waitangi are clear and simple.
ARTICLE ONE establishes sovereignty over New Zealand in the name of the British Crown with the various signatory tribal
chiefs accepting that sovereignty.
ARTICLE TWO is all about the establishment, maintenance and protection of property rights. It must be remembered that
under tribal chieftainship property rights were not well defined or secure. They were frequently seized in battle with
the vanquished often being enslaved or eaten.
ARTICLE THREE promises the natives of New Zealand and their descendants equal rights and responsibilities before the
law as British subjects.
I will proudly defend those broad principles in any forum and uphold the Treaty of Waitangi as our nation's founding
document. Regrettably we have allowed those principles to be twisted and reinterpreted by activists with a determined
agenda.
The concept of "treaty partnership" was invented by the judiciary in the 1980's and seized upon by the Treaty
activists. It is a fundamentally flawed concept as are the government's ill-conceived treaty principles based on the
notion of protection, partnership and participation.
While various parties came together on the 6^th February 1840, from that day forward sovereignty lay with the Crown and
all citizens enjoyed equal rights. The Crown is we and we are the Crown through our democratically elected parliament.
How can you possibly be in partnership with yourself? It was no accident that Governor Hobson said in Maori to each
chief as they signed the treaty "He iwi tahi tatou - Now we are all one people".'
The court did not find that there was any customary title to the foreshore and seabed, only that it was possible that
customary title does exist in some instances. All citizens must have the right to go to court seeking determination of
property rights disputes. Our democracy is based on the appropriate division of powers between the Legislature
(Parliament), the Executive and the Judiciary. For a healthy democracy it is essential that we have faith in the
integrity and independence of all three.
There is an issue of our Court structure that worries me deeply. The Waitangi Tribunal is not a Court and only has the
powers of recommendation. All of the Judges on the Maori Land Court are members of the Waitangi Tribunal and the Chief
Judge of the Maori Land Court, Joe Williams, is the acting Chairman of the Waitangi Tribunal. The Maori Land Court was
established with the prime purpose of adjudicating the extent of customary land title held by various Maori groups and
where appropriate converting that customary title to fee-simple freehold title under our much acclaimed Torrens system
of land registration and transfer.
In making those determinations non-sworn testimony is often accepted without cross-examination or challenge. We have
had a recent history of judicial activism on Treaty matters and the Maori Land Court is demonstrably aligned. It is
therefore not the appropriate judicial body to determine the validity of any customary title that may exist over the
foreshore and seabed.
In addition the Te Turi Whenua Maori Act 1993 is defective because it wrongly equates non-exclusive use rights with
property ownership and title.
The Labour Government has no idea on where it is going with this issue and is squeezed between the interests of two
conflicting constituencies. The government backed down from asserting sovereignty and ownership in fear of alienating
its Maori constituency. Instead we have had a series of nebulous and even meaningless statements about access, certainty
and customary title that are somehow are bundled into a public domain owned by no one. This is a recipe for uncertainty,
endless litigation and escalating social tension.
In examining this issue the ACT party has been guided by two broad principles.
The sanctity of property rights
One law for all - common rights and responsibilities of all citizens before the law - in other words, one class of
citizenship.
The ACT party has a very simple, clear and principled policy on the foreshore and seabed issue:
1. The Crown must assert sovereignty retaining powers to act as the regulator as and when necessary.
2. Property rights are important.
(a) All users of the foreshore and seabed need clear and transferable property rights particularly those associated
with activities such as aquaculture, prospecting, mining and marinas. Parliament, not the Courts, must determine the
type and extent of such property rights.
(b) Where any established property right is appropriated by the Government in the public interest then compensation
must be paid.
(c) To the extent that some limited customary use rights may still exist then those claiming such rights must, as
necessary, be able to test those rights in Court and resolve disputes.
3. No law should confer privilege or prejudice on the basis of race - One law for all.