Hard News: Right This Time?
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its all very well to say the foreshore belongs to the sea, but then who owns the sea. does the right of might rule apply ?
hmmm...now where was i reading the chinese are sending out armed boats to protect their fishing fleets as they poach in foreign waters
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I'd see this as a step to having a general "right-to-roam" on uncultivated land and forest, similar to the Swedish concept of Allemansrätt.
Now that is something even Brother Cavill could believe in.
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so do they teach new immigrants any 'real' history?
Speaking as a new immigrant, I can say with some certainty that the answer to that is 'no'.
Now, if you'll be so kind as to point me in the direction of the nearest welfare office, I'll be on my way.
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Last time I looked Parliament was the highest court, and for better or for worse I prefer decisions with deep real world political implications to be made by that institution than by elite experts informed only from within the narrow blinkers of the law.
I agree to some extent with this. I don't have any problem with the advice of these elite experts figuring extremely highly, but this kind of dispute is deeply constitutional, and the final backing should come from the legislature, preferably supported by the judiciary (having been involved). To leave it entirely to the judiciary is a ridiculous way to manage a matter of such political import.
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Where you run into a wall of Pakeha hostility is the idea of bi-culturalism and the relevance of the treaty as a living document. The treaty is between Maori and the British crown and its successor.
The elephant in that room are four million people who now simply call themselves New Zealanders, and who are not addressed in the treaty.So, it's a contention between different ideas of history. I'm going to be simplistic here and boil it down to two viewpoints: the "it was all such a long time ago and has no relevance to us now" school, and the "we're in a partnership; we owe responsibilities to each other as neighbours and partners; and those responsibilities are reborn with each generation" group. It seems to me the second has a lot more going for it. Especially considering that a lot of the grievances currently before the Tribunal didn't take place in some distant, Victorian past. Most of the Maori land alienated through the Land Court was taken in the twentieth century.
A lot of the most cynical seizures of the kind Danielle was referring to -- "we need this land urgently for a school! Sorry, we meant a golf course! LOL" -- happened in the '50s, '60s, and '70s. To claim that these kinds of injustices "have no relevance" to us now is pretty hypocritical, it seems to me.
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Is learning about this at school completely beyond our education system, or something?
so do they teach new immigrants any 'real' history?
Don't be silly. History does not start with an "R" not like Riteing or Rithmatic.
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Of course, back in July 2003 DPF was supporting Bill English's call for immediate legislation, and urging exactly what he is now decrying...
Indeed. He was bragging about how many people had signed the petition calling for same at National's "Beaches for All" website.
You may be interested to know that beachesforall.co.nz is now available for registration, having clearly outlived its usefulness for its former owners.
Damn. I said I wasn't going to be bitchy ...
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A question I've always meant to ask ...
Could the Crown and its fellow signatories have extinguished existing title in the foreshore and seabed when the Treaty of Waitangi was signed and its various rights were granted?
If so, were they in error not to have done so?
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You may be interested to know that beachesforall.co.nz is now available for registration, having clearly outlived its usefulness for its former owners.
That seems a little short-sighted.
After all, they’ll be back in opposition one day.
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Don't be silly. History does not start with an "R" not like Riteing or Rithmatic.
heh...reality starts with an R or should that be realty and so does errr... racialism ?
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Gordon Campbell on Scoop:
So far, the only consensus from the hui consultative process this year has been about the easy part – scrapping the status quo.
All the divisive, contradictory parts remain. Any solution has to recognize customary rights for iwi and hapu, while not making access for everyone else in any way conditional. Good luck with that. In all likelihood, the government’s ‘solution’ will be to do nothing – and let the issue go back to the courts for the judges to make a ruling, based on the pre-foreshore and seabed legal framework. The gist of any such ruling will not be whether customary rights exist so much, as to define their scope – and whether they include the equivalent of ordinary property rights.
In truth, it would be helpful – as well as politically expedient – for the Key government to have that legal landscape clarified by someone else before it acts. Yet act it must, ultimately– if only because it is unlikely that the courts will have been able to tidily square the circle. Looking ahead, it seems clear that neither customary rights nor free access can continue to have their current meaning, not if a workable compromise is to be achieved. That will mean political headaches all around.
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I am going to be deeply un-politically correct here and say I have sympathy for the idea the treaty is the original basis for de jure government. But the realities of New Zealand 170 years on from 1840 makes the current New Zealand state de jure and de facto without need for recourse to the treaty of Waitangi. To my mind, most of the treaty is now relevant only to academics.
OK. But remember that "de facto rights" boil down to rights assumed by force, or the threat of force. And these aren't really sound foundations on which to base any claim to a rule of law that binds us all. If your ancestors were quelled by force alone, surely it behooves you to resist the state by applying a countervailing force of your own?
Remember also that one of the reasons that the Treaty came to be regarded as an unfortunate mistake was because of a change in intellectual climate in Britain in the mid- to late nineteenth century. And the writings in favour of obtaining an empire by force that accompanied that change of opinion were pretty nasty. I've got a copy of the The Nineteenth Century 42 (April 1897) here on the desk beside me, and here's what one of its contributors has to say about the "Ethics of Empire"
What is the moral justification for the conquest of the nations of India by England? The best way of answering that query is to put another. What was it that enabled the English to effect that conquest? Evidently it was their inherent superiority. How, then, did that superiority arise? It arose because through many centuries the ancestors of the Englishmen ... had made a better use of their opportunities than had the ancestors of the various nations in India whom they subdued. That section of mankind which dwelt in Britain had acquired, doubtless through the compulsion of heredity and environment, a far stronger and more energetic temperament than that which obtained on the Indian peninsula. As a result, they were the stronger people .... This is precisely the process which has taken place in the world at large.
That there is the essence of the "de facto" argument. And we see where that led. No good comes of it.
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Could the Crown and its fellow signatories have extinguished existing title in the foreshore and seabed when the Treaty of Waitangi was signed and its various rights were granted?
By mutual agreement between crown and iwi? Of course - just as they could have not guaranteed the rights of iwi to their taonga, or to the rights of British citizens. But it would have been a very different Treaty had they done so.
If so, were they in error not to have done so?
No, at least not in the historical context of the actual Treaty. Regardless of your view on kawanatanga vs te tino rangitiratanga, what the Treaty primarily did was transfer some kind of sovereignty. Property rights remained intact, both as a clause in the Treaty, and (more important in a strict legal sense) as an underlying doctrine of common law. If it was owned by Maori, that ownership was unaffected by the Treaty, just as the ownership of houses in New Orleans was unaffected by the Louisiana Purchase - something the courts were willing to enforce, at least until Prendergast.
In 1840, no-one cared about the beaches. The absence of a clause giving them to the crown is thus entirely unremarkable, and not any sort of "mistake".
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dubmugga@
I do think we have a kiwi culture, it's vital, evident in our stories, music & Art; Rugby & 4% Draught Beer.
A culture lived in the vanacular, eh bro?Russell@ The Treaty was set to establish rather than extinguish any title of any sort, including European Blue Water Title that still exists today. There is no error, it was always the intent of Tiriti o Waitangi.
English
The Second
The Queen of England agrees to protect the chiefs, the subtribes and all the people of New Zealand in the unqualified exercise of their chieftainship over their lands, villages and all their treasures. But on the other hand the chiefs of the Confederation and all the chiefs will sell land to the Queen at a price agreed to by the person owning it and by the person buying it (the latter being) appointed by the Queen as her purchase agent.Maori translation into English.
Article the second
Her Majesty the Queen of England confirms and guarantees to the Chiefs and Tribes of New Zealand and to the respective families and individuals thereof the full exclusive 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 the Chiefs of the United Tribes and the individual Chiefs yield to Her Majesty the exclusive right of Preemption over such lands as the proprietors thereof may be disposed to alienate at such prices as may be agreed upon between the respective Proprietors and persons appointed by Her Majesty to treat with them in that behalf.
As for legislation forbiding going to court over it. That is covered in Article 3English version
The Third
For this agreed arrangement therefore concerning the government of the Queen, the Queen of England will protect all the ordinary people of New Zealand and will give them the same rights and duties of citizenship as the people of England.Maori translation into English
Article the third
In consideration thereof Her Majesty the Queen of England extends to the Natives of New Zealand Her royal protection and imparts to them all the Rights and Privileges of British Subjects.’ -
Could the Crown and its fellow signatories have extinguished existing title in the foreshore and seabed when the Treaty of Waitangi was signed and its various rights were granted?
Aboriginal title is common law, and not an artefact of Te Tiriti. In order to use Te Tiriti to extinguish aboriginal title, they have had to have argued in favour of Maori submitting themselves to English law, except for those bits that might actually be useful in protecting their taonga.
If so, were they in error not to have done so?
I'm not sure what the big problem is. Sure, there is extreme rhetoric coming from a minority on both sides, but the moderate Maori position has been clear all along: no fee simple title (i.e. can't be alienated) and general public access for all (except for designated areas e.g. wahi tapu and special occaisions such e.g. a rahui is being place on the beach because someone drowned there).
Sounds like a reasonable position to me, and a good point from which to extend discussion. Discussion in good faith can be very constructive. One of the problems from the last attempt to deal with this issue is that the Government and National were more about ramming through legislation that pandered to whipped-up, ill-informed public opinion than engaging in meaningful dialogue.
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Russell - the Ngati Apa case was never a Treaty case. It's about the common law of aboriginal title.
This is off the top of my head, but I was tutoring propert law at Vic the year the decision came out, and I think I can still remember what we were told about all of this (by Richard Boast, no less).
Basically, aboriginal title is held collectively by the (non-european) natives of the country that has the bad fortune not to have developed a legal system that looks complicated to whities. The natives retain that until the title is extinguised by the Crown. This doesn't happen until that land is purchased by the Crown, at which point the land is 'converted' to regular title and can be flogged off to settlers who jump off the boats from the UK.
The issue with Ngati Apa was that a lot of the Crown purchase deeds were mighty unclear about the exact boundaries. Specifically, they didn't say whether the purchase went down to the low tide mark or the high tide mark. So its this inter-tidal area that is at issue. The Court in Ngati Apa (completely consistently with overseas authorities, I understand) found that title to that area hadn't been acquired by the Crown, and therefore that aboriginal title hadn't been extinguished.
To prove that it continued to apply, though, Maori tribes would have needed to show continuous traditional use of that area. This is very difficult to prove, given the intervening time, lack of written records in some cases, and quite often Maori simply being blocked from using the tidal areas in question. This is what comforted Gault J, one of the most socially reactionary judges we've ever had inflicted on us, to side with the majority in Ngati Apa - the thought that even if they got the right in Court, Maori were unlikely to ultimately get anything.
None of this - NONE of it - was acknowledged by Labour, or reported in the media. Its what turned me off the last Labour govt - vile, racist, legally illiterate populism. The FS&S Act is, essentially, indifensible.
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Mikaere - snap.
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Edit: I see your snap and add my own.
And, in a slightly different form: Prendergast is dead. Get over it.
(Yes, I have a hate on for Prendergast. He ranks high on my shitlist of worst ever New Zealanders)
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OK. But remember that "de facto rights" boil down to rights assumed by force, or the threat of force. And these aren't really sound foundations on which to base any claim to a rule of law that binds us all. If your ancestors were quelled by force alone, surely it behooves you to resist the state by applying a countervailing force of your own?
Which is why I was careful to say I believe the DE JURE basis of the government of this land no longer needs, because of the passage of time, the validation of the treaty. But the best way to be sure would be to simply for us to do the right thing snd create another, absolutely valid state entity - the REPUBLIC of New Zealand.
I was playing with my ten year old nephew the other week and it occured to me that if, as I fervently hope, he lives to a great age in his home town then I could conceivably be gazing fondly upon the representative of a quarter of a millenia of the recorded presence of our family name in that place.
The idea that the specific articles of the treaty of Waitangi could still apply to him and - hopefully - his descendants at that time would be a functional absurdity.
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@Mikaere:
Aboriginal title is common law, and not an artefact of Te Tiriti. In order to use Te Tiriti to extinguish aboriginal title, they have had to have argued in favour of Maori submitting themselves to English law, except for those bits that might actually be useful in protecting their taonga.
Thanks. I realise that it's not a Treaty issue, but I wondered whether either the Crown or iwi signatories intended to (or even could) extinguish this particular aboriginal title in the process of signing their Treaty, which granted new, explicit rights.
@Idiot/Savant:
What is aboriginal title?
You win the chocolate fish. That's both concise and lucid.
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The idea that the specific articles of the treaty of Waitangi could still apply to him and - hopefully - his descendants at that time would be a functional absurdity.
I'm inclined to agree with Thomas Paine that the right of the dead to dictate the lives of the living is one of the most absurd things humans have ever come up with. It's a form of ghost worship.
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But the best way to be sure would be to simply for us to do the right thing snd create another, absolutely valid state entity - the REPUBLIC of New Zealand.
Sounds great, we could enshrine Te Tiriti in a written constitution - would that make you happy ?
Or do you actually cleave to this quaintly colonial notion that it's OK for the state to embody Pakeha culture, but not OK for it to embody Maori culture ? IOW, Pakeha good, Maori bad ?
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I'm inclined to agree with Thomas Paine that the right of the dead to dictate the lives of the living is one of the most absurd things humans have ever come up with. It's a form of ghost worship.
Well, yeah, but one of the direct consequences of that line of thinking was Robespierre. I'd prefer to stick to worshipping ghosts, quite frankly, because they're less likely to chop my head off.
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The idea that the specific articles of the treaty of Waitangi could still apply to him and - hopefully - his descendants at that time would be a functional absurdity.
I'm inclined to agree with Thomas Paine that the right of the dead to dictate the lives of the living is one of the most absurd things humans have ever come up with. It's a form of ghost worship.
So anything we may have once deemed legally/socially/ethically useful as a society needs to be ignored once it passes some nebulous, agreed-upon* use-by date? Like yoghurt?
Seriously, who *are* you people? You are freaking my historian ass the hell out. :)
ETA: *And the question of who does the agreeing-upon the use-by date is also a thorny one. I don't hear too many Maori talking about the 'functional absurdity' of their descendants having the Treaty apply to them. I wonder why that is?
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The idea that the specific articles of the treaty of Waitangi could still apply to him and - hopefully - his descendants at that time would be a functional absurdity.
Why?
People are quite happy to live under the shadow of old documents. The US Constitution was written in 1789; they're still happy with it. We still recognise the Magna Carta, signed in 1215 (though the version in our law is a later re-enactment), plus of course the Bill of Rights 1688.
If you hate the Treaty, you should at least have the guts to say so openly and honestly. But this idea that "in the future it will be irrelevant" fools no-one.
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