Foreshore and Seabed issues aren't going away

So they're doing it again.

Anyone — anyone! — has the moral right to assert their ownership of something — and, under a common law system, they have the ability to go to court to try to prove that assertion. To make their claim. (Or try to.)

Common law recognises that not all legitimate claims to land or water use or ownership come as grants from a fictional entity called "the crown." Instead, it recognises the imperfection of that system, and allows claims to be made on occupation, on long use, on recognised practices.

Our common-law system however has been so buried by statute law that it's now hard to find it. And in recent years successive governments of both hues have been desperate to avoid anyone — anyone! — making any sort of common-law based claim of ownership.

That seems to go double for iwi.

The kerfuffle over foreshore and seabed began when Helen Clark rejected the right to Ngati Apa to go to court to try to assert its right to part of the Marlborough foreshore and seabed based on long use and occupation. She decided instead to nationalise it, trumping both court and claim. Ironically now, she sent out John Tamihere to sell the poisonous solution to unwilling Māori buyers.

Bear in mind Ngati Apa were simply arguing for the right to appear in court to try to make a claim. (As they and others of every hue were fully entitled to.) But that was enough for Clark.

The rights rort continued with the John Key Government's further politicisation of the foreshore and seabed, coming up with a bastardised replacement of the Clark Government's Foreshore and Seabed Act that tried to square an illegitimate circle.

Didn't work, said the Court of Appeal last year. Property rights remain legitimate even in the absence of government recognition, they suggested. And iwi, they agreed, are entitled the chance to claim legitimate rights in court (even if National's replacement Act bars full recognition).* And so the Luxon Government is now all a-scramble trying to keep the illegitimate cork in the bottle, acting to legislate away the court's decision.

It's not a good legal look.

Ironically (ironies abound here) the politician promoting the politically-expedient pre-emption, Paul Goldsmith, is a historian by profession. I can't help wondering how different New Zealand's history may have been if principled common law had won out over political expediency over the last one-hundred and eighty-five years.

We may be a different, and better. place for it.

* * * * 

* No Right Turn summarises the court decision, and National's (over) reaction: 

"The decision ... basically reinterpreted section 58 of National's Marine and Coastal Area (Takutai Moana) Act to make it consistent with its purpose clause and te Tiriti o Waitangi by allowing "shared exclusivity" according to tikanga. The upshot is that it would become significantly easier for iwi and hapū to gain customary marine title over their foresore and seabed - a fact confirmed in subsequent court decisions. National doesn't want that to happen - in fact, they don't want Māori to be able to gain customary title at all, despite what they promised Te Pāti Māori when they passed the law in 2011 - and so they plan to legislate it away (which they disguise as "restoring the intent of Parliament" - which is effectively an admission that they dealt in bad faith with their coalition partner in 2011). Of course, they're pitching this as being about beach access, like they always have, even though that is not and never was under threat. But they're quite open in the Herald about what its really about: protecting the aquaculture industry. So Māori rights are going to be sacrificed to protect National's donors and cronies. Which sounds just a little corrupt."

It does a bit, doesn't it.

As I've said before, when the Foreshore & Seabed Act was repealed, it should have just been left where it was at before.

And where it was at before was with Maori needing to prove to the courts that they possessed a common law property right in their portion of NZ’s foreshore & seabed. And if they could prove such a right to a legal standard of proof, then why on earth should anyone object?

What could possibly be wrong with recognising the right of people to claim the property in which they have a right? Everyone, including divers, miners, aquaculture owners, and iwi.

What could possibly be wrong with the protection of property in which people can prove that right, which is all that a repeal of the Foreshore and Seabed Act could have done.

And that’s all there really is to it. See how uncomplicated it really is? Or could still be.

The Fiction of Maori Ownership

Guest post by A. Mous.

In “Maori Land Law,” Sir Hugh Kawharu blatantly sets out to fabricate a universally recognised body of Maori property rights pre-dating the Treaty of Waitangi. By implication, these were rudely subsumed by white-settler governments, who substituted their own Eurocentric notions of property ownership. This now widely accepted thesis was explicitly created to fudge or remove the fact that “customary title” is in practical terms no title at all.

The functional social unit of pre-European Maori society was the hapu, or sub-tribe. Each hapu was in a Hobbesian state of nature (“War of every man against every man”) with every other hapu, thus rendering life “nasty, brutish and short.”

Within the hapu-controlled estate, whanau groups sometimes enjoyed exclusive rights of occupancy or usufruct as Kawharu has identified, but the only universally accepted concept of land ownership BETWEEN hapu was “Te rau o te patu” or “The Law of the Club.”

In the absence of a settled form of civil government, hapu used or occupied land only until someone else took it off them. This position was somewhat modified by Article II of the Treaty of Waitangi, which purported to change this temporary “customary” Maori use and occupation of land into permanent legal ownership.

It should be noted the Treaty was never meant to convey to Maori ownership of the entire land area of New Zealand.* It was intended to secure the various hapu in their “ownership” of land that they actually used or occupied as at February 1840.

In practice, this meant “ownership” of land identifiably occupied and cultivated. At a most generous assessment, such “ownership” might stretch to include a reasonable hunting and gathering range around a Maori settlement. At the time the Treaty was signed, even in the more populous North Island, such settlements were typically few and far between

In 1840, the North Island was home to an estimated 100, 000 Maori. Edward Dieffenbach, a German-born naturalist who travelled throughout the North Island in 1844, reported that “even in the areas of greatest Maori habitation, there are huge tracts of land, even up to hundreds of miles, between the various tribes [hapu].”

The South Island lay practically deserted. Edward Shortland’s 1846 census found some 2, 500 Ngai Tahu, resident at several coastal locations. To suggest that 2, 500 people [a] lived on; [b] cultivated; or [c] hunted and gathered over 13 million hectares of the South Island is sheer casuistry.

Even in the North Island, aside from the immediate areas around a Maori settlement, the “waste lands” were uninhabited, unimproved, uncultivated, and untrod by human feet, other than those of an occasional war party or traveller. The exclusion of other groups, whether by law or by force, was in practical terms impossible, meaning the “waste lands” had neither “customary” nor legal owners.

The mischievous notion that the property rights set out in Article II of the Treaty applied to the entire land area of New Zealand, including the “waste lands,” was implanted in the Maori mind by the missionaries over the decade following the signing of the Treaty. They were well aware the Crown had little money for land purchasing and a mere handful of troops to enforce its edicts. The missionary agenda was to keep secular, worldly Pakeha confined to areas already settled, thus ensuring missionaries remained the only European influence in the all-Maori hinterlands they wanted to Christianise.

By the mid-1840s, Maori had learned that the Crown would pay to acquire the “waste lands,” in order to avoid the trouble it had no military force to quell. Each hapu became an instant “owner” of huge tracts of “waste land” adjoining its settlement. This created multiple competing ownership claims.

To convey a clear title to subsequent purchasers and ensure incoming settlers remained unmolested, the Crown was obliged to extinguish this Maori “ownership” by paying all potential claimants. In many early land purchases the Crown paid out anyone asserting a right to be paid.

The Native [now Maori] Land Court was originally set up to deal with these competing claims to the “waste lands.” “Ownership” was typically awarded to whoever could spin the most convincing whakapapa about how his remote ancestor had travelled over the land 500 years before naming natural features after parts of his body.

Had the missionaries not queered the pitch for the Crown, the “waste lands” and appurtenant rights would have simply been assumed by everyone to be vested in the Crown, to be held, managed, onsold, or otherwise used for the benefit of ALL New Zealanders, irrespective of race.**

* * * * *

*Editor’s Note: And under common law, nor could it.

** Editor’s Note: Since the British Common Law still had legs at this time, I submit it is more likely these “waste lands” would have simply been considered “un-owned” until such time as it could be laid claim to by anyone, also irrespective of race, under common law’s various provisions for homesteading, for example, prescription, adverse possession or “lost grant.” 
          This, incidentally, is it the ground on which some iwi were arguing for rights to particular portions of foreshore and seabed—ground cut out from under them by Helen Clark’s Foreshore & Seabed legislation, and removed entirely under Chris Finlayson’s “negotiated giveaway” policy under his Marine and Coastal Area law – Ed.

This post first appeared at Breaking Views and 1Law4All.

Did you know … ?

Did you know that if you wish to build on, develop or improve your coastal land in some parts of the country, you first need to get permission from the local Maori tribal leader(s)?

Not everywhere in the country, you understand.

But you certainly will if you’ re in parts of the Hawkes Bay, where you’ll need the approval of Ngāti Pāhauwera; or in Matauri Bay of the Taotahi whānau; on Motiti Island of the Motiti Rohe Moana Trust and/or the Ngā Uri o ngā Tupuna whānau; in parts of Waihi of the Ngaruahine iwi; and around Waitara of the Te Atiawa Iwi Authority. In Onauku, Waikawa and Whatamango Bays and in parts of Cape Farewell you’ll need your projects approved by the Tahuaroa-Watson whānau; around Pakiri, Leigh and Goat Island you’ll need to suck up to the  Iris Cecilia ‘Timi’ Paraone whānau; around Cape Turnagain to the Poronia Hineana Te Rangi whānau; around the Waitahanui Stream to the Tangihia Hapū; and in Kennedy Bay, Mataora  Bay and Mercury Islands you’ll need the approval of some bloke called John Tamihere and the Ngāti Porou ki Hauraki iwi.

Just thought you’d like to know.

You can thank Chris Finlayson later.

What would Party X do about the environment? Part 2: A Nuisance and a BOR

    Imagine a ‘Party X’ that was actually committed to opposing statism ,and to advocating for free enterprise. Imagine such a party had a cabinet committing to rolling back the state, and an environment minister brimming over with ideas to do that.     Here, in several parts, are the sort of environmental policies such a party (and such a minister) could advocate. Seven simple policies using present-day political realities to roll back the state without introducing any new coercion along the way.
This morning, two proposals to propel property rights towards the heart of New Zealand life:
The newspapers this morning carry the news that  the world-famous famous penny-divers at Rotorua’s Whakarewarewa are being told by the authorities not to swim in the Puarenga River if they value their health. It seems the stream is being seriously polluted.

    Tests over the years have shown poor results for water quality and [authorities] says companies like the Red Stag Timber Mill could be doing much better.
    But Tim Charleson, the mill's environmental manager, says the company carries out regular chemical tests on its effluent and it's meeting the conditions of its resource consents.

I have no doubt Red Stag et al are indeed “meeting the conditions of [their] resource consents.” But as this story and others clearly demonstrate, resource consents are not a form of environmental protection. If you think they are, think again.

In cases like this one and all over the country, from the Tarawera River (into which the paper mill has a license to dump chlorine and worse) to Akaroa Harbour (where the council has given itself a license to dump nearly raw sewage), a resource consent is nothing more than a license to pollute.

The RMA, under which resource consents like this are issued, is hopeless at protecting the environment because it’s hopeless at protecting property rights. Contrast this common law, which has seven-hundred years of sophistication at protecting both, and you realise how far from ideal NZ’s so-called “environmental legislation” really is.

With strong property rights under common law, for example, the tourism operators along the Puarenga River—and the former fishermen at the head of the Tarawera River; and the aquaculture operators in Akaroa Harbour—would all have had legal standing to take action against polluters damaging their property right.

Historically and in principle that’s the best protection the environment ever had – both for the natural environment and for the human environment. Property rights in streams and rivers for example coupled with common law systems of protection would at a stroke solve the ‘dirty dairying’ problem about which so much is said, but so little achieved. Property rights in flora and fauna and land is the best means of ensuring a genuinely sustainable nation.

So how do we do that? Here’s two ways:

1. Putting Property Rights in the Bill of Rights Act

We know that common law protection of property rights has been buried by statute and regulation and the Foreshore and Seabed Act and its replacement--but it’s not too late to resurrect it. Placing property rights in the Bill of Rights Act would be a start—a politically possible start—repairing an omission that Bill of Rights architect Geoffrey Palmer has publicly conceded was a mistake, and that National's disgraceful about-turn three years ago overturned.

It should be simple enough to insert a new clause in the Bill of Rights adding property rights to the rights protected.  (But a responsible ‘Party X’  would know they would need to add pressure to make the Bill of Rights  superior to all other law, as it always should have been.)

After all, the principle of property rights simply promises the protection of the right to peacefully enjoy that in which one has property. What reasonable objection can be brought to a law that protects an individual’s right to peaceful enjoyment? (Let me stress the word "reasonable.")

Let’s place on the back foot those who object to that right by challenging them to say for what reasons the right to peaceful enjoyment should not be made superior to all other law. Why should that right not  be put beyond the vote? That is, beyond the power of politicians to tamper with.

Our putative ‘Party X’  may not be immediately successful in this goal, but it could at least flush out the bastards who oppose such peaceful rights, and expose the reasons they do.

In the meantime, you might like to consider what would happen if property rights ever actually were placed at the heart of the likes of the Resource Management Act . . . would it be something like the meeting of matter and anti-matter ?

2. Coming to the Nuisance

Planners like nothing more than than telling you where and how you may live.  The RMA gives them that power in spades, and the country is infested with the well-fed bastards writing and administering District Plans empowered by the RMA to boss you and your family around.

It wasn’t always that way. Back when common law was being invented, the English king was becoming increasingly frustrated at having to fix issues about the damage that someone’s chickens did to someone else’s crops.  Keen to stop his castles being overrun by defendants’ chickens, the king quickly realised the three important questions that could quickly solve these issues:

1. Whose chickens (and whose crops) are they?
2. What damage did they do? (And how to remedy it?)
3. Who was there first?

Such was the birth of common law—and right there in those three questions the English king had hit on the three ingredients that have been at the heart of common law ever since:

1. Property rights.
2. Damage.
3. Nuisance (and who came to it?).

Once these principles were established, the English king was able to solve these problems rapidly, to cleanse his castles of chickens, and to head north to invade Scotland—which is what the king known as “The Hammer of the Scots”  he’d been trying to do when he got bogged down in these disputes.

What I’m going to propose here is another simple modification to law that would allow New Zealanders to once again repair to the common law protections that “The Hammer” had made possible. In particular, the codification of the common law principle of Coming to the Nuisance (seen in palimpsest in point three above), which on its own would a powerful antidote to the zoning that the RMA has entrenched -- perhaps the strongest possible antidote to zoning there is. Supplementary to putting property rights in the Bill of Rights, then, ‘Party X’ could promote the reintroduction of the Coming to the Nuisance doctrine for use as an absolute in neighbourhood disputes.

The Coming to the Nuisance Doctrine is an enormously powerful principle protecting pre-existing rights, and quickly establishing rights in situations of apparent neighbourhood conflict. Move next door to a clean and well-run chicken farm or pig or mushroom farm for example (even if the place has been re-zoned since the farm opened), and under this doctrine you have no right to have them thrown out.

Move next door to a speedway track, for another well-known example, and you have no right to complain about excessive noise.

I assume you see the difference with how things presently work. If the farm or the speedway or whatever it is was there before you chose to buy next door, then that’s probably why you got your land so cheap.

And if the track (or farm) is well and properly run, then those pre-existing rights should and can be protected in law; and if they were you then have a strong incentive to either make a more careful choice in future (whereas now the incentive is there to move in and force them out), or to buy out the speedway or the farm, or buy easements or covenants over the neighbouring land.

Either way, when the coercion is removed from all parties and bargaining is all that’s allowed, the tendency is for property to end up in its highest value use. This is not something planners can ever claim to have achieved.

Furthermore, what this principle will demonstrate over long use is that zoning is not only coercive, but unnecessary. It will on its own provide a daily demonstration that sound property rights work for everybody except the grey ones and the looters.

Coming To The Nuisance then is THE pre-eminent antidote to zoning.

Not only that, at the same time as undercutting the zoning law established under the RMA, if  introduced it would ensure that if neighbours of Western Springs speedway aren’t prepared to stump up enough for the bikes and midget cars to go elsewhere, then the noise of fast cars and motorbikes will continue to annoy wankers like Peter Williams QC for some years to come. You can’t do better than that.

[Tune in tomorrow for policy proposal number three: Small Consents Tribunals.]
* * * * *
THE SERIES SO FAR:
INTRO: 'What Would 'Party X' Do About the Environment?' PART ONE: Un-taxes
THE SERIES IS BASED ON THE PRINCIPLE DEVELOPED HERE: 'Transitions to Freedom: Shall We Kill Them in Their Beds?'

Government profiteering on somebody else’s airwaves

The Government appears to have agreed to a deal to help bail out media company MediaWorks, reports the Royal NZ Herald.

MediaWorks’ latest accounts [says the Herald] show it has essentially received a $43.3 million loan from the Crown to enable it to renew its radio broadcasting licences for the next 20 years.

Except Media Works hasn’t received a loan from the Government at all. What it has received is an agreement to defer payment for the use of the Government’s radio airwaves for the next twenty years—for which the Government is charging MediaWorks $43.3 million plus penalties of 11.3%.

It’s nonetheless objected by commentators that this is capitalism. Or even crony capitalism. Or just regular old corruption with a bailout of the government's mates.

Frankly, this sounds like children talking. Because not one of the commentators on any side of the aisle has bothered to challenge the most absurd part of this story: that the government owns the airwaves in New Zealand, and not the private broadcasters—and that it charges the broadcasters handsomely for the “privilege” it grants them for using this nationalised property.

Something that is frankly as absurd with airwaves as it is with foreshore and seabed.

As if that sort of setup was capitalism.

Or right.

Yet virtually every commentator takes it for granted that airwaves (and seabeds) are "public." But they shouldn't be. And curiously, none of them sees the connection with the foreshore and seabed debate. But they should.

Alex Epstein from the Ayn Rand Center makes the case that airwaves (and by extension all natural resources) should be private property.

Sure, while the airwaves themselves have always existed in nature, the broadcast technology that gives them value did not. It’s here that property status properly begins.

When inventors and engineers first unlocked nature's potential to carry radio waves, and entrepreneurs began developing the commercial value of radio, the government had a responsibility to define property rights in this sphere--so that these innovators could own and utilize portions of the spectrum without interference by others.

But instead of defining property rights, the government usurped them.

There is an exact parallel here to property rights over [foreshore, seabed, and] newly available land. When the American frontier was opened in the 19th century, the government did not declare it public property. Rather, it parceled out the unowned land on a first-come, first-served basis, and then recognized a property right for those who made use of the land for five years. The same type of procedure—enabling pioneers to earn a property right to that which they render valuable--applies to any newly usable portion of spectrum.

Or should.

And, like land rights, once a property right to the use of a given frequency band in a given region is earned, it belongs to the owner unconditionally...

Meaning, among other things, that it doesn’t need to go cap in hand to its master every year pleading for another license—something some governments have oft-times used to shut down stations that criticise them too harshly.

Unfortunately, our government does not recognize airwaves as private property, and never has. In the 1920s, its response to the development of radio was not to define and protect property rights for the field's creators, but to nationalize them as "public property." Consider the injustice of this: the pioneers who envisioned the potential of radio technology, and took the risk of bringing it about, had no more right to their creation than we do, who created nothing.
    Under the "public" airwaves regime, businesses do not own but merely "license" portions of spectrum--which the government has total authority to control in the "public interest." The use of spectrum is determined, not by the business that has purchased and earned it, but by the [grey ones]--by whatever it feels is in the indefinable "public interest." In the realm of media, … bureaucrats can effectively censor viewpoints they dislike by revoking broadcast licenses or imposing huge fines. In the realm of wireless data, [bureaucrats and Government] can impose more onerous terms on a paying licensee anytime they wish--such as Google's proposal that licensees be forced to sell large portions of their bandwidth to competitors at FCC-dictated "reasonable" rates, no matter what it does to their business…
    [We] need to start recognizing airwaves as the private property they really are…

Yes. We do.

SUMMER SECONDS: Rolling, rolling, rolling: The Treaty gravy train is still rolling

This “Summer Seconds” series gives you a second chance to read classic posts from the NOT PC archives. This time, a piece from just a few months ago looking at the issue that might now get Hone expelled from his own party for writing this column.

As usurpation is the exercise of power, which another hath a right to; so tyranny is
the exercise of power beyond right, which no body can have a right to.”
            - John Locke

The Foreshore & Seabed deal is complicated enough already without Hone Harawira muddying its far from pellucid waters.  But bear in mind that when Hone complains the government has “pandered to rednecks” and he calls the agreement “bullshit” [audio] he’s just playing politics with you.  He just wants mainstream New Zealanders* to think his tribalists have been shafted so they won’t look too deeply into what’s just been given away.

Hone is obviously upset that the government has (quite properly) refused to make a gift to iwi of that which they were previously required to go to court to prove. From Lew at KiwiPolitico (who, it seems, agrees with Hone):

[The government, says Hone] took the two things which would make Pākehā happy and refused to give the one thing which would make Māori happy.
“The two things are guaranteed public access and inalienability [clarifies Lew]; the one thing is Māori title.”

I disagree.  I’d say the government got one thing right and several things wrong. But I’d go further. In opening the door for iwi to make a form of common law claim to property in specific tracts of foreshore or seabed, on that at least the government has done well. To put it in the famous terms of John Locke, this would be using power to recognise right. So too would have been recognising the right to alienate (sell) that to which title had been so proved. On that, the government has done poorly.  That too would have been using power to protect right.

What Hone wants “mainstream” New Zealand to overlook however is what has been given beyond right, which nobody can have a right to—no matter what their heritage or skin colour.

The devil seems to lie in that details that have been changed to allow this deal to happen between the government’s offer last month and what was announced yesterday. There appear to be two new things handed over:

1. A unjustified declaration in law that Maori have mana over the foreshore and seabed.
      The universal recognition or mana tukuiho--“recognition for all iwi with a coastal connection, whether or not they meet the test for customary title”—will “cite iwi and hapu with specific coastal areas,” says the Herald, spelling out out “to councils and other statutory organisations what rights the recognised iwi and hapu have on conservation issues in their area.”
   In other words, the door has been opened now to grant Maori leaders a “partnership” in law that the Treaty itself never promised, but which the myth-makers have been agitating for for at least two decades.
   A form of partnership that will make a gift to iwi of unspecified political power over aquaculture operations, minerals claims, harbours, ports, airports and more.
   A gift that has just opened the door to a world of trouble.
2. “The Government also agreed [says the Herald] that iwi which have already had a Treaty of Waitangi settlement can make a new claim for customary title in the foreshore and seabed.”
   So much for all those “full and final” settlements too, eh?

And so much for one law for all.

So the scorecard to me on yesterday’s agreement looks like one step forward, and three back.  And in every direction, these are big steps.

The gravy train is still rolling.

* * * *

* Yes, Virginia, it’s now Politically Correct to talk about “mainstream New Zealanders.”  You now have Aunty Tariana’s permission.

Tuku’s trough could fill a whole coastline

Those of us who remember Tukuroirangi Morgan's time in parliament, and at Aotearoa Television, remember with some enthusiasm for the entertainment it gave us all what a glutton he was for a perk. His sense of entitlement was so tangible it was something we mere mortals can only wonder at. (Q: Why did the chick cross the road? A: The chicken's mana entitled it to cross the road whenever  and wherever it wanted.) 

Those of you too young to remember it all need only a ribald sense of humour and the ability to Google Tuku+Morgan+underpants to catch up. And you should, because everyone but Tuku had a blast.

These trough-snout proclivities of the Tuku are so clearly innate with him that it's very easy to believe recent stories that he and the rest of the Tainui top table which he chairs are paying themselves an awful lot for doing very little—a revelation for which the woman who revealed it has just been sacked by the very head honcho of the trough, by the Tainui “king” himself. (A sacking that looks as petulant as it is irregular.)

This, ladies and gentlemen, is what a Browntable looks like—a table of top troughers who don’t give a fig either for the people who pay their way, or the people in whose name they they claim to speak.

It’s to scum like this, and to the rest of their similarly-placed Browntable brethren around the country, that the National Party now wants to make a gift of nearly two-thirds of the coastline—not to individual Maori, or to individual non-Maori, either of whom might be able to prove some sort of common-law property right in what is presently un-owned, but who will now have no forum win which to make a case; not even as some under-the-table kind of privatisation, which will pass these parcels of foreshore and seabed into individualised titles that could end up in the hands of those who value them the most.

No, the National Party just wants to put it all straight into the trough and (after a few short  pas des deux in Chris Finalyson’s office) to give it straight to tribal “leaders” like Tuku and his ilk, so these self-serving scum can keep themselves in pork and clover until such time as they come back to the taxpayer saying “More!”

This is what has many people feeling very aggrieved about National’s compromise arrangement on the Foreshore & Seabed Act: because it will simply add more coastline to the already overfull Browntable trough, without delivering even a schnapper’s worth of justice for anyone.

But this is not to say the opponents of National’s planned handover are correct in their own criticism.

Hone Harawira, for example, seems to think the whole coastline should simply be handed over as is where is to the Browntable, simply because they are who they are. (The Browntable’s mana entitles it to whatever and wherever it wants. So there.)

And the ACT Party & the Muriel Newman-led Coastal Coalition have been running an even more bizarre line. Instead of opposing crown ownership and arguing for real property rights—i.e., upholding the common law right for people’s day in court to argue for their rights in these areas to be recognised, which was precisely what the original Court of Appeal decision allowed—or arguing for a simple privatisation of coastline by the granting of individualised, transferable titles—they’re arguing instead that two-thirds of the country’s coastline should remain nationalised in perpetuity.

But since many of them also believe that “before Maori arrived in New Zealand settlements had already been established … by Chinese miners, and by the Celts,” it’s clear that logic plays no part in their campaigning.

QUOTE OF THE DAY: On property

Any material element or resource which, in order to become of use or value to men, requires the application of human knowledge and effort, should be private property--by the right of those who apply the knowledge and effort."
        - Ayn Rand, quoted by J. Brian Phillips & Alan Germani in
                                   “The Practicality of Private Waterways”

Rolling, rolling, rolling: The Treaty gravy train is still rolling

“As usurpation is the exercise of power, which another hath a right to; so tyranny is
the exercise of power beyond right, which no body can have a right to.”
            - John Locke

The Foreshore & Seabed deal is complicated enough already without Hone Harawira muddying its far from pellucid waters.  But bear in mind that when Hone complains the government has “pandered to rednecks” and he calls the agreement “bullshit” [audio] he’s just playing politics with you.  He just wants mainstream New Zealanders* to think his tribalists have been shafted so they won’t look too deeply into what’s just been given away.

Hone is obviously upset that the government has (quite properly) refused to make a gift to iwi of that which they were previously required to go to court to prove. From Lew at KiwiPolitico (who, it seems, agrees with Hone):

“‘[The government, says Hone] took the two things which would make Pākehā happy and refused to give the one thing which would make Māori happy.’
“The two things are guaranteed public access and inalienability [clarifies Lew]; the one thing is Māori title.”

I disagree.  I’d say the government got one thing right and several things wrong. But I’d go further. In opening the door for iwi to make a form of common law claim to property in specific tracts of foreshore or seabed, on that at least the government has done well. This would be using power to recognise right. So too would have been recognising the right to alienate (sell) that to which title had been proved. On that, the government has done poorly.  That too would have been using power to protect right.

What Hone wants “mainstream” New Zealand to overlook however is what has been given beyond right.

The devil seems to lie in what changed between yesterday and the government’s offer last month to allow this deal to happen. There appear to be two new things handed over:

1. A unjustified declaration in law that Maori have mana over the foreshore and seabed.
      The universal recognition or mana tukuiho--“recognition for all iwi with a coastal connection, whether or not they meet the test for customary title”—will “cite iwi and hapu with specific coastal areas,” says the Herald, spelling out out “to councils and other statutory organisations what rights the recognised iwi and hapu have on conservation issues in their area.”
   In other words, the door has been opened now to grant Maori leaders a “partnership” in law that the Treaty itself never promised, but which the myth-makers have been agitating for for at least two decades. 
   A form of partnership that will make a gift to iwi of unspecified political power over aquaculture operations, minerals claims, harbours, ports, airports and more.
   A gift that has just opened the door to a world of trouble.
2. “The Government also agreed [says the Herald] that iwi which have already had a Treaty of Waitangi settlement can make a new claim for customary title in the foreshore and seabed.”
   So much for all those “full and final” settlements too, eh?

And so much for one law for all.

So the scorecard to me on yesterday’s agreement looks like one step forward, and three back.  And in every direction, these are big steps.

The gravy train is still rolling.

* * * *

* Yes, Virginia, it’s now PC to use the “mainstream” word.  You now have Aunty Tariana’s permission.

UPDATE: Dim Post has a similar view of Hone’s politicking.

This is just cynical politics: Harawira’s censure is beneficial to National – it’s voters hate him and see his anger as an indication that their party has done the right thing. And it lets the Maori Party pretend it has at least one member who speaks for those who don’t like their coalition choices which is obviously not the case.”

Foreshore & Seabed agreement: One cheer please.

The government had essentially five choices how to deal with the foreshore & seabed around New Zealand.  It could be, in ascending order of superiority:

• Government-owned in perpetuity, i.e., nationalised
• Unowned in perpetuity, i.e., collectivised
• Iwi owned in perpetuity, i.e., tribalised
• Iwi-owned until sold, i.e., privatised by fiat
• Unowned until or unless right to title is established in court, i.e., privatised by right

It appears that today’s agreement moves it from being nationalised to being collectivised, i.e., from the lowest rung of hell to the second-lowest.

One cheer please, for that.

Ngai Tahu overlord’s private-property threat casts pall over foreshore debate [updated]

NOW THAT A NATIONAL hui of 100 iwi representatives has rejected the Attorney-General's proposal to replace Crown ownership of the coastal area with a public domain that nobody owns, it’s apparent the government’s uncertainty and vacillation over the Foreshore and Seabed issue has now led it, and us, to a dangerous place.

Ngai Tahu chairman Mark Solomon said after the hui, "We refuse to forgo all of our rights and put our rights to the foreshore under the public domain, as long as there are still 12,500 titles sitting there, private titles to the foreshore. If you put them into the public domain, then iwi will have the discussion about putting all of our rights into the public domain."

Translation: Solomon and his friends will refuse to accept National’s sullied compromise on the foreshore unless already-established coastal property is nationalised.

A dangerous place indeed. And an unnecessary one.

FIRST OF ALL, SOLOMON is labouring under an illusion.  He and his Browntable have no recognised rights in any part of the foreshore.  Never did. Recall that what was extinguished when Helen Clark had her brain explosion over the Ngati Apa Marlborough decision was not Maori rights in the foreshore. What was extinguished was the common law right to lay a claim to those rights. It was their right to a day in court.  A common law court. Some iwi have a case to make there; so do some individuals.  But to assume that the case has already been made, and to use Helen Clark’s high-handedness (and John Key’s inability to make a decision) in order to smuggle in a title that is not yet granted to a claim that is not yet proven would be an annexation of which Joachim von Ribbentrop would have been proud.

Now don’t get me wrong.  I think every New Zealander should be entitled to go to court to make a common law claim to what’s theirs, Maoris no less than anyone else. Always have done. (You know, one law for all, and all that.) But let’s not let Solomon get away with putting his gravy cart before his horse here—particularly when’s using it to foster fear in owners of existing coastal property as a means by which to pressure the government.  Fear-fostering as a negotiating tactic, in other words.

SECOND, SOLOMON’S CITED HISTORY is both wrong and self-serving. He talks about long outstanding claims to reserves in Kaikoura, for instance, which claims he is loath to see extinguished. Frankly, he must think the government is stupid (and I think perhaps he is right). As Alan Everton said in The Free Radical back when Ngai Tahu were handed $170million of taxpayers’ money back in 1997,

“Ngai Tahu have been in the grievance game for about 130 years.  Before  that they were in the land-sale game for about 30 years.”

The rorts they themselves perpetrated in those first thirty have served as fuel for their rorts of the last 140.  In that respect nothing has changed. Indeed, the 250,000 acres encompassing those reserves in Kaikoura, which Solomon erroneously claims were “taken” illegally in 1859, were in fact sold by Ngai Tahu two times already prior by that date (with Kaikoura’s Ngai Tahu leader Kaikoura Whakatau being present at one of them), when Whakatau agreed to sell it a third time. And the unjustified claims over these reserves were just part of what came to fuel four "full and final" settlements between Crown and Ngai Tahu over the next 140 years, with the taxpayer picking up the tab for all of them. (I recommend Alan Everton’s three part 1997 article on ‘Ngai Tahu’s Tangled Web’ for the full story and more: Part One, Part Two, Part Three.)

BUT ALL THAT ASIDE, it’s now apparent that the Clayton’s solution of “public domain” proffered by the Attorney General just three months ago has served only to further muddy the waters of foreshore and seabed, while pushing back even further any chance of sense or clarity at all in the now-troubled debate.

Time to bite the bullet and do what I’ve been advocating now for more than six years:

When the Foreshore & Seabed Act is repealed, just leave it where it was at before.
And where it was at before was with Maori needing to prove to the courts that they possessed a common law property right in their portion of NZ’s foreshore & seabed.  And if they could prove such a right to a legal standard of proof, then why on earth should anyone object?
    “What could possibly be wrong with recognising the right of people to claim the property in which they have a right?
    “What could possibly be wrong with the protection of property in which people can prove that right, which is all that a repeal of the Foreshore and Seabed Act will do.
    “And that’s all there really is to it.  See how uncomplicated it really is?”

Or needs to be.  Common law really is a beautifully uncomplicated thing.

UPDATE: Turns out that American Gardner said this all yesterday at the Roar Prawn blog.

GUEST POST: Whanau Ora, and The Seabed and Foreshore Act review

A guest post by Tim Wikiriwhi
“NO MAN’S LIFE, LIBERTY or property are safe while the legislature is in session,” said Mark Twain. With all the political wheeling and dealing now going on between the unscrupulous politicians of the National and Maori Parties, this observation is more true now than ever.

Two very important legislative changes are about to be implemented as part of this political bargaining and bribery: the Maori Party’s Whanau Ora scheme, and the review of the Seabed and Foreshore act.

Now it may be true that the Seabed and Foreshore act is bad legislation and in need of repeal, yet it does not automatically follow that what the shysters of National and the Maori Party are proposing is a step towards greater justice. I see it as just another grab by covetous racists for money, property and power at the expense of New Zealanders as a whole.

Unsure foreshore solutions

AFTER MUCH BEHIND-DOORS backing and filling and log-rolling, the government and its apartheid party coalition partner have finally come up with solutions to the foreshore and seabed dilemma that still simmers as a result of Labour’s nationalisation.

In 2004, if you recall, Helen Clark unilaterally extinguished Maori rights to claim ownership in foreshore and seabed under common law and gave effect to the nationalisation in a hastily passed law, the Foreshore & Seabed Act.  And at the time National talked about amendments to the Act that would virtually cement it in place for all time. This was considered to be opposition.

But things have moved on. Helen Clark’s “haters and wreckers” are now ministers in a National cabinet.  And their blancmange Prime Minister has come up with the perfect blancmange solution--- a semantic one.

Make it all crown land, said Labour’s law; no, no, says National’s kick for touch, let’s call it “public domain.” And get the Maoris on side by calling this new legal concept of non-ownership "takiwā iwi whānui"—and get the lawyers onside by making the “roles and responsibilities” of the non-owners sufficiently vague that only decades of court case will be able to define precisely what it means.

But you don’t like that solution? Don’t worry, they’ve got others.

That’s right. Unable and unwilling to make a firm or principled decision themselves, they’ve put out a “discussion document” containing four proposed “solutions’ to see which get people worked up least. You don’t like “public domain”? Why, sire, why not try these three other flavours, including Crown ownership of everything, Maori ownership of everything other than the minerals- or the status quo, if too many people throw too many toys out of their cots.

Observe that in all four “solutions” the government retains all the mineral rights to foreshore and seabed.  That “iwi authorities“ will have “roles and responsibilities” akin to those of regional councils, and veto rights that (as Shane Jones points out) will invites "brownmail," where tribes receive cash from developers in return for their support. That the likes of non-Maori aquaculture operations have essentially just been told to take a long walk off a small pier. And that the well-recognised tragedy-of-the-commons continues to hover over all the areas over which no clear ownership rights and ownership interests are established like an unwelcome elephant at an otherwise elegant cocktail party.

And observe too that while in some of the four options there’s talk of “allowing” access to courts to prove rights to foreshore or seabed under common law (a right all citizens enjoyed under British law for centuries, until extinguished here by Helen Clark) it really is only talk.  Even the option of granting Maori “absolute title” is not granting title by right, but by fiat--and the “absolute title” to be granted under this solution is not to specific portions of foreshore and seabed to which specific owners my lay claim, but to all the foreshore and seabed not presently under private title, meaning that non-Maori lose whatever rights in common law they may have once been able to assert.

And since the ownership “rights” in any of these proffered solutions will be neither transferrable nor divisible, this means that any “ownership” granted is largely notional in any case.

So not so much just kicking for touch as taking away the ball under cover of turning on the lights.

It’s a series of Clayton’s “solution” by an Attorney General obviously well versed in semantic tricks—a solution that retains the body of nationalisation of foreshore and seabed, while transferring the shadow of ownership to the government and whichever Browntable groups are making the most noise.

FOR WHAT IT’S WORTH, my own view on the foreshore and seabed issue has been consistent now for at least six years, and is based on the common law principle that everyone, no matter their colour, has a right to claim ownership rights to un-owned property if the requisite common law tests are met. 

I see no reason to change that view now.

Privatising the Foreshore & Seabed: Get on with it! [update 2]

Otago Daily Times: “Prime Minister John Key says the foreshore and seabed legislation will almost certainly be repealed, but no decision has been taken on what might replace it.”

WHY HAS NO DECISION YET been taken on what might replace it, I wonder?  Even though everyone and their kaumatua has been trying to complicate things, it’s not like it’s at all complicated.

When the Foreshore & Seabed Act is repealed, just leave it where it was at before.

And where it was at before was with Maori needing to prove to the courts that they possessed a common law property right in their portion of NZ’s foreshore & seabed.  And if they could prove such a right to a legal standard of proof, then why on earth should anyone object?

What could possibly be wrong with recognising the right of people to claim the property in which they have a right?

What could possibly be wrong with the protection of property in which people can prove that right, which is all that a repeal of the Foreshore and Seabed Act will do.

And that’s all there really is to it.  See how uncomplicated it really is?

There’s a few points to be made, however, just to round up the complications people see in this.

THERE’S TALK THAT REPEALING the Foreshore and Seabed Act will simply “give” Maori the beaches.  This is wrong in two respects.

First, repeal would (and should) simply mean that Maori have a right to make a claim to what is theirs, not to be given what is not.

Second, it doesn’t mean that all Maori are awarded a right to all beaches.  That’s like saying, if the roles were reversed somewhat, that all men should be awarded rights in all the country’s fishing spots, and all white women get to own the pavements outside all the clothes stores – which even my least favourite auntie would know was absurd. But it doesn’t mean that at all. In fact it’s more like saying that your favourite store might be able to have its rights in the pavement outside its own store recognised by the courts, should they be interested in such a thing.

In other words, repeal simply means (and should mean) that specific parties have to prove they possess specific rights in a specific piece of land, foreshore or seabed, which rights would then deserve to be recognised in law.

And like the rights in a High Street pavement, that needn’t preclude there being other rights and covenants attached that protect other rights, rights such as access and so on, so everyone’s rights in a piece of land, foreshore and seabed are protected.

Common law is a beautifully uncomplicated thing.

THERE’S TALK THAT RIGHTS should be made non-transferrable, and only awarded to iwi instead of individuals. Why?  Let’s put on our colour-blind spectacles for a moment and recognise that if Maori can prove they have genuine rights, then why should those rights be so circumscribed?  Why should individual Maori miss out?   Why shouldn’t rights be transferrable – which means they can be used as collateral to help the owners develop the resource -- and be saleable, so they can end up in the hands of those who value the resource the most?

THERE’S TALK THAT MAORI deserve the rights to foreshore and seabed as some sort of gift under the Treaty.  Nothing could be further from the truth.  They deserve the right to claim their rights  because, like every other New Zealander, they deserve to have their rights in property protected. But there’s the rub, isn’t it. There should be more than one race who has this right protected, shouldn’t there. You know, like One Law for All – which was what the Treaty actually brought to New Zealand.  Let’s use this as a call to arms for all property rights for all New Zealanders.

SO LET’S LOOK AT the real bright side here: If it’s done properly, repeal of the Foreshore & Seabed Act will be a fantastic step forward for property rights. Sure, if it’s done properly repeal will only take us back to how things were a few years ago, but there’s now so much more understanding of how a common law property right can be laid claim to than there was back then -- and there’s so much more support for the common law process by which it can be done. 

Crikey, even Green Party co-leader Metiria Turei thinks Maori should be given the right to seek common law title through the courts. Who would have thought we’d see the Greens supporting the privatisation of the commons.

UPDATE 1: Speaking of “better than they were before,” on this issue at least a simple repeal would be far better than what Don Brash was proposing back in the day, as I said the day after in one of my first posts here at NOT PC. Back then, both major parties were offering the false dichotomy summarised in the famous billboard:

As I said in that post, “both [the Clark] Government and the National opposition favoured nationalisation instead of common law recognition of property rights -- an unfortunate irony, and an unjust one.”

 

How things have changed in four years.

 

UPDATE 2: Russell Brown updates everyone on the he-said she-said shemozzle of what everyone was saying back in 2003, which was pretty much about-faces all round.

 

I’m pleased to say that by June 2004 at least the Libertarianz party was front and centre arguing that this was a clear property rights issue, and that Maori deserved the right to get their day in court. 

 

And, credit where it’s due, it was Russell Brown who persuaded me of that back in 2003 when we were chewing the fat in the ‘green room’ before an episode of ‘Off the Wire.’

Property rights for sure [update 3]

Now that the Foreshore & Seabed Act faces repeal, I don’t feel the need either to repeat what I’ve said over the last several years on the subject, or to change it.

What could possibly be wrong with recognising the right of people to claim the property in which they have a right?

What could possibly be wrong with the protection of property in which people can prove that right?

Isn’t that all that a repeal of the Foreshore and Seabed Act will do?

I think this is a fantastic step forward for property rights. I think it’s a great way by which to privatise the commons. I just think there should be more than one race who has this right protected. As an individual right. You know, like One Law for All?

How ‘bout you?

UPDATE: BK Drinkwater rounds up reactions to the repeal report.

UPDATE: Chris Trotter is continuing to repeat the big lie that Don Brash is somehow to blame for Labour’s panicked introduction of the Foreshore and Seabed Act.  Journos such as Radio Live’s James Coleman, who I just heard taken in by Chris’s self-serving myth-building, should avail themselves of David Farrar’s timeline on the subject.  As David points out, Don Brash wasn’t appointed National leader until some 127 days after Labour’s panicked announcement; and the Orewa Speech (which Trotter cites as proximate cause for the panic in an attempt to diminish what was said there) wasn’t delivered for a full 218 days after Clark and Wilson went for the “nuclear option.”

UPDATE 3: It always starts with common law.  Readers who’d like to get their heads around this issue would be well advised to get to grips with the concept of common law, and the process by which common law can recognise long established use as a means by which to recognise a property right.  Two of those methods, which you can read about in any book of tort law (or, no doubt, in any decent Google search) are acquisition by prescription, and by ‘the doctrine of lost modern grant.’

That’s the simple process which Ngati Apa had initiated in Marlborough, success in which caused the panic in Helen Clark’s private dressing room.

You would also do well to realise that this process of rights acquisition cuts both ways; that is, it’s eminently appropriate for both property owners and property users – which is to say, in this case, it’s an appropriate from by which the rights of both the owners of the foreshore and seabed and those who desire access to it can be registered and protected. If I may quote myself:

    Common law. Common law has hundreds of years of demonstrated success in protecting property rights, as well as being practical and cost effective. It's common sense. [And it’s what Maori are asking for here.]
    Under common law, the right of access is just one of many 'sticks' in the bundle of rights associated with your land. Groups (or individuals) can only acquire such rights by either purchase, or by long unchallenged use (as per 'prescription,' or the doctrine of 'lost modern grant'). Such groups might for example be tramping clubs, angling organisations, hunting clubs, skiing clubs, botanical societies, canoe clubs etc. Such rights, if they exist, would be specific, clearly defined and circumscribed, and would appear on title deeds as a specific easement in favour of specific groups, which property-owners would know about when property was purchased. Common law is clear, certain, and protects your property rights (the exact opposite of the RMA, for instance.) And best of all, common law is simple, and thus doesn't require hoards of bureaucrats to administer it.

I invite you to explore the concept.

Property rights are human rights: let’s protect them say NZ academics! [updated]

I’m astonished.  The last two decades have seen attack after attack on New Zealanders’ property rights.

• the imposition of the Resource Management Act, which gave planners full power over your land;
• the confiscation of crown pastoral leases;
• ‘right to roam’ laws attacking the sanctity of farmers’ land;
• the destruction of Maori land value by Crown pre-emption rights;
• the nationalisation of petroleum;
• the partial nationalisation of Telecom;
• the confiscation of the legal right to claim the foreshore and seabed under common law;
• the destruction of value of pre-1990 forests under the Emissions Trading Scheme;
• unwanted power pylons being imposed on Waikato farmers;
• the attack on the value of shares in Auckland International Airport Ltd.

And in the last Parliament, when offered the opportunity to place the protection of property rights in NZ’s Bill of Rights Act, MPs peremptorily voted it down –- with John Key’s National Party being prominent in the ‘Noes’ lobby when it finally came to the vote.

Despite abundant historical evidence of the many blessings of property rights, and cogent arguments defending these life-sustaining rights, both academics and politicians of all stripes have been on the front foot against property rights for years.

So how astonishing then to see National Party hack Matthew Hooton promoting the work of two academics from the state-worshipping climes of Victoria University, who argue in advance of next week’s Jobs Summit that “if the new Government moves to protect property rights, there will be more jobs in our economy than otherwise.” 

Professor Lewis Evans and Professor Neil Quigley of the Institute for the Study of Competition and Regulation at Victoria University of Wellington, along with NERA Economic Consulting, entitled ‘Protection of Private Property Rights and Just Compensation: An Economic Analysis of the Most Fundamental Human Right Not Provided in New Zealand.’

The paper compares New Zealand’s record on property rights with the rest of the OECD; finds our record to be among the worst in the developed world; details the economic harm being done to all New Zealanders as a result; and proposes a legislative solution involving an amendment to the Bill of Rights Act to ensure a canary in the mine exists to alert the public if and when future parliaments seek to confiscate property rights without compensation.  [The full paper can be found at  http://www.iscr.org.nz/n493.html and it was also previewed on page six of today’s National Business Review.]

There is much to be disappointed with in an argument made on practical grounds alone, without any statement of the moral grounds on which property rights must be protected –- and much to object to in the notion that property rights equates only to ‘compensation for takings’ instead of outright protection against theft of what you own –- but in these times seeing support for property rights from any local quarter is welcoming.

And they’re right, you know. If the new Government does move to protect property rights, then there will be more jobs in our economy than otherwise. 

An understanding of the vital role of property rights and lawfulness in creating wealth should be basic knowledge for every thinking person, shouldn’t it?  Even a politician.

Tibor Machans' authoritative piece on the Right to Private Property would be a good place for honest thinking persons to start their education: "The institution of the right to private property," says Tibor, "is perhaps the single most important condition for a society in which freedom, including free trade, is to flourish."

UPDATE: Quote corrected.

"Me too" and mendacity on Nats' Maori policy

Despite talk that National has formed an understanding with the Maori Party that will allow them to do a deal after the election should both have the votes (a deal putting National into government and Pita Sharples into the Maori Affairs ministry), National has just released a Maori Affairs policy suggesting either a few problems for the talked-about deal -- or a few problems with the honesty of National's policy commitments.

As Liberty Scott accurately characterises it, it is "me-too" all over again:

• "Me too" on continuing to support (read - use your taxes to spend money on) Maori broadcasting, Kohanga Reo, racially-based housing, racially-based "professional development," racially-based health provision and the like," despite this "support" having led to what Scott describes as "appalling violence, abuse and intergenerational criminal underachievement of the underclass of predominantly Maori families, failing again and again, and worst of all breeding children in a climate of fear, abuse and neglect." National is for more of the same.
• "Me too" on "recognising the Treaty of Waitangi as the founding document of New Zealand," despite it being too hastily written and lacking too much to bear the weight of such an accolade.
• "Me too" on "more support" i.e., taxpayers money, for the kangaroo court that is the Waitangi Tribunal. (National's David Farrar says "I especially like the commitment to speeding up the Treaty settlements by shifting the office to the Department of Prime Minister and Cabinet, having independent facilitators and greater resourcing for the Waitangi Tribunal."
• "Me too" on their backsliding on the deadline by which the Waitangi Gravy Train will be brought to a halt, and nothing at all about the fullness or finality of settlements. Scott has more on both these points.
• "Me too" on establishing "post-settlement governance entities that best meet [Maori's] multi-dimensional roles and responsibilities," which presumably includes even more veto powers for iwi under the Resource Management Act.
• "Me too" on the Foreshore and Seabed Act.

Yes, they do promise to "reform the Resource Management Act to facilitate growth and development in the aquaculture industry" -- and the prospect of giving some weight to property rights to achieve this is dangled -- and they do promise to abolish the Maori seats, but it's this last and their position on the Foreshore and Seabed Act that will, at least on paper, pose the greatest problem for any coalition with Hone and Pita and Tariana.

And a deal with National is on the cards. Since the notion of reducing state spending on racially based policies is alien to National's policy document, one has to wonder if, like the Treaty Settlement policy, it's primarily about keeping the Maori Party happy?

But what about the policies on the Maori Seats and the Foreshore & Seabed Act? Opposition to Labour's Foreshore and Seabed Act, which removed from Maori the right to go to court and prove in common law their ownership rights over foreshore and seabed, led directly to the formation of the Maori Party. As Hone Harawira said recently, why would they give support to the party that introduced what is the worst violation of Maori rights for one-hundred and fifty years? (On which he's correct, incidentally.)

Pita Sharples said after National's policy release that abolition of the Maori seats is for Maori to determine (not as long as it represents a racial gerrymander it isn't) and National's stated policy on foreshore and seabed is "problematic" for any coalition deal ... "but they expect to see changes."

Now, John Key refuses to either confirm or deny whether or not those specific, high-profile marquee policies, either of them, are negotiable, but yesterday morning on National Radio he explicitly refused to rule it out -- and we all know what that means in politics, don't we.

So this looks like talking out of both sides of the mouth, doesn't it. Promising something in public to the electorate that the electorate wants to hear, while in private promising the Maori Party precisely the opposite in order to keep them on side.

Which all suggests that National intends either to break their promise to the electorate by backtracking on one or both of these big ticket policy commitments, or to break an understanding with the Maori Party -- that they will go easy on abolishing the Maori seats, and work towards abolishing the Foreshore and Seabed Act.

Which do you think is most likely? And what does this say about National's honesty?

UPDATE:  Pita Sharples confirms the analysis in an interview to air tonight on Alt TV.

Dirty dairying and dodgy drafting

New Zealand's present and future prosperity is still based largely on agriculture, yet on the back of the recent report on the NZ environment by Parliamentary Commissioner of the Environment Jan Wright we're heard various fevered calls from water campaigners for a "moratorium" on agricultural development, from the Greens' Russel Norman for farmers to require resource consents for improving their productivy, and -- from this month's environment minister (the punch-drunk Trevor Mallard) -- a call for enforced "downsizing" of dairy farms and "limits on herd sizes." 

Enforced downsizing and limits on herd sizes!  Talk about shooting your prosperity right in the foot.

And following the weekend's fiasco over the alleged "deletion of a chapter critical of dairy farming"  the rhetoric has ramped up again, with the Greens' Russel Norman declaring  New Zealand's "clean green" image has been tweaked, that "industrial dairying" needs to pull its head in -- and this morning Federated Farmers president Charlie Pedersen appeared to concede the point, and National Party appeaser Nick Smith to embrace it.

Never underestimate the ability of politicians (and appeasement of them) to destroy your livelihood, while making a problem worse.

The problem they're mostly attempting to address is water -- how it's regulated, how dirty it is, and the role of agricultural intensification in the declining environmental standards.  Said Parliamentary Commissioner Jan Wright at the report's release, the report finds water quality is "declining" in areas used for farming, and "the Resource Management Act is causing fundamental problems for water management." In response, Murray Rogers of Canterbury's Water Rights Trust campaign group says "agricultural development needs to slow down while research and regulatory structures are put in place to manage water." 

Both Wright and Rogers are right, although not in the way they think they are. 

Since it looks like farmers could have their future prosperity limited on the back of what this report says about water, let's see first what it actually says.  (you can read the whole report here.) On inspection it turns out that the body of the report which contains the actual data  is less frightening than what the headlines and the deleted 'summary' chapter say about it.  (No surprise there -- it's on a par with the various summaries of the IPCC's global warming science.)  About water the body of the report says:

• By international standards, freshwater in New Zealand is both abundant and clean.
• Because New Zealand has a low population and high average rainfall, it has more total freshwater per person than more than 90 per cent of almost 200 other countries around the world. However, not all of this water is in the right place at the right time...
• With land-use practices becoming more intensive, particularly in farming, there is greater demand for water now than ever before, and evidence is building that its quality is declining in many water bodies.
• As the dominant land use in New Zealand, agriculture has the most widespread impact on water quality.
• Rivers in catchments that have little or no farming or urban development make up about half of the total length of New Zealand’s rivers and have good water quality. Water quality is generally poorest in rivers and streams in urban and farmed catchments. This reflects the impact of non-point-sources of pollution in these catchments...  The proportion of the total river length that is in farmed catchments is more than 40 times the proportion that is in urban catchments.
• In recent years, the impact of agricultural land use on water quality has grown as a result of increased stocking rates and use of nitrogen fertilisers. Within the agricultural sector, there has also been a move away from low-intensity to high-intensity land use (for example, converting from sheep farming to dairy or deer farming). The net effect of most intensified land use is to increase the amount of nutrients, sediment, and animal effluent dispersed into water bodies.
• The median levels of nitrogen and phosphorus have increased in rivers within the national monitoring network over the past two decades. More specifically, over 1989–2003, there was an average annual increase in levels of total nitrogen and dissolved reactive phosphorus of 0.5 per cent to 1 per cent. While this increase may seem small, and is difficult to detect from the slope of the median (dark blue) lines in Figure 10.3, it signals a long-term trend towards nutrient-enriched conditions that are likely to trigger undesirable changes to river ecosystems.  Furthermore, New Zealand rivers with relatively high levels of nitrogen are deteriorating – becoming more enriched – more rapidly than rivers with low levels of nitrogen. This is illustrated most clearly in Figure 10.3.
• Seventy-five of the 134 lakes in New Zealand for which nutrient data are available have high to very high levels of nutrients (see Figure 10.5, right). Thirteen per cent of these lakes are known as ‘hypertrophic’, meaning they are ‘saturated’ with nutrients and their water quality is extremely degraded. In such lakes, algal blooms are common and the health of aquatic animals is often at risk.
• Levels of nutrients (nitrogen and phosphorus) and algae are between two and six times higher in lakes in pastoral catchments than in lakes that are in natural catchments (see Figure 10.6).
• A large majority of the 3,820 lakes greater than 1 hectare in area in New Zealand are not monitored. By extrapolating the results for monitored lakes, it is estimated that the majority (about two-thirds) of all lakes are likely to have relatively low concentrations of nutrients and good to excellent water quality because they lie in natural, or only partially developed, catchments (Ministry for the Environment). The remaining third of lakes are likely to have high levels of nutrients and poor water quality.
• Pollution from organic waste in rivers has reduced since the late 1980s. This indicates improved management of point-source discharges of organic waste, that is, pollution from a single facility at a known location, such as discharges from wastewater treatment plants, meatworks, and farm effluent ponds.
• Two-thirds of New Zealand’s lakes are in natural or partially developed catchments, such as native bush, and are likely to have good to excellent water quality. Small, shallow lakes surrounded by farmland have the poorest water quality of all our lakes.
• Sixty-one per cent of the groundwaters in New Zealand that are monitored have normal nitrate levels; the remainder have nitrate levels that are higher than the natural background levels, and 5 per cent have nitrate levels that make the water unsafe for infants to drink.
• Fertilisers and stock effluent are major sources of the nitrogen and phosphorus in water bodies in agricultural catchments. The erosion of soil also contributes significant amounts of soil-bound phosphorus to waterways.

Now I don't know about you, but overall that looks like a pretty credible pass mark to me.  Says the report:  "By international standards, freshwater in New Zealand is both abundant and clean." So much for the blowhards.

But there do appear to be two main issues:

1. increased draw-offs for irrigation and resulting 'competition' for water in Canterbury and Southland, and
2. the effect of farming on water quality in lakes and rivers. 

You won't be surprised to hear I've got something to say about both, nor that what I've got to say involves property rights.

Competition for water is complicated by bureaucratic systems of allocation. Protection of water quality is stymied by bureaucratic systems of protection: which means there are no effective legal remedies against pollution, and no effective agent to argue on behalf of that which is being polluted.  Both problems are the direct result of what's known as the Tragedy of the Commons problem.  As long as a resource is either unowned or held in common ownership (which is the case with water in NZ), then the incentive for each resource user is to take as much now as they can, and whenever they can, no matter the consequences for the quality of that resource, and no matter the long-term effect on the quantity of that resource.  That's the tragedy: common ownership provides no incentive for genuine 'stewardship.'

The answer is clearer property rights, and greater common law protection of those rights.

As Jan Wright almost inadvertently pointed out in interviews yesterday, "the Resource Management Act is causing fundamental problems for water management."   She's right, but not in the manner she thinks she is. The fundamental problem caused by the RMA is insufficiently secure property rights. The cure for both problems is more secure property rights.  Let's me tell you how.

1. Competition for water
As water users realise every summer, competition exists for existing water resources.  Bureaucratic distribution of access to water does nothing to secure the resource, and nothing to give water users long-term security of supply.  By contrast, recognising secure property rights in water means that water users have a long-term interest in maintaining security of supply, and that rights to use water end up in the hands of those who are going to value it most. 

Instead of a bureaucratic system of allocating water use, a system of secure tradeable water rights give users of water the benefit of long-term time horizons to plan their use (discouraging the short-termism that generally stymies 'sustainable' resource use), and establishes for all users the real value of those rights.  With tradeable water rights, where and when water is in short supply price signals will communicate that information to users, indicating that more care should be taken with the valuable resource, and more attention paid to expanding the resource (by construction of greater collection capacity for example). 

There's nothing complicated about any of that: that's how the markets for all other resources function, and the long-term effect of such markets is that for all sorts of reasons -- including greater incentives for increased efficiencies -- resources become less and and less scarce, and of better and better quality. 

The key to swiftly effecting such a scheme is to immediately secure the rights of existing users, ensuring that such rights are tradeable so that they can be transferred to others who might value them more. A heavily politicised scheme for tradeable water rights was being discussed in 2006, but like all politicised schema the feet are still being dragged.  What's needed quickly to avert moratoria and meddling is a system of clear property rights by which water can be traded.  

As the Canadian Environment Probe organisation has said for a long time, a system of clear property rights and common law protections of property rights offers the best long-term security for water and those who rely on it. My colleague Craig Milmine has a dissertation from 2000 discussing the theory in detail, and showing how a water rights regime could function in the South Island's Kakanui district.

2. Water Quality
We're told by all the usual suspects that dirty dairying is destroying our clean green reputation, and that agricultural intensification is destroying water quality.  I suggest the answer to that is not more bureaucratic intensification, which is what has produced the problem, but less.

 Property rights under a common law regime provides superior environmental protection -- that is, a system of clear property rights as a means by which water can be protected in common law.  No question about that ( I invite you to follow those three preceding links to check that claim).    When the costs of one's own actions are one's responsibility, a change of behaviour is greatly encouraged.  When producers themselves have to pay for their own pollution, a change in methodology of production has to be considered.  When water users themselves have clear rights in common law to protect the water in which they have property, then looking at it as a long-term resource that merits looking after is going to happen.  And when neighbours' actions start to destroy that resource, then with their property rights secured rights' owners have the motivation to act in protection of that resource, and under common law they have simple and effective remedies with which to take action -- remedies that simply don't exist under the bureaucratically intense RMA. 

Under common law for example, those with recreational or water rights along the Waikato or with rights to fish the lakes of Rotorua or the headwaters of the Tarawera River would have recourse against farmers or pulp and paper mills who polluted the fishery -- whereas with the RMA the polluters get a license to pollute and the affected parties find they have no particular legal standing, and no particular protection in law to protect their resource, common law grants them solutions, standing, and the means by which to protect their resource long-term. 

What common law does in other words is give effective legal power to recognised resource users to protect their resource long-term.  If we genuinely want to rehabilitate NZ's clean green credentials, then I maintain the solution is better protection of property rights and the rehabilitation of common law remedies for environmental protection.  Simple.

But there’s a problem.  In fact, there's two problems -- and it's not dirty dairying, but dirty government . 

1. The Resource Management Act (RMA) has successfully buried almost all avenues for common law environmental protection.  Despite their proven effectiveness over eight-hundred years, common law measures to protect against pollution are buried under the statutory framework of bureaucratic control set up  by the RMA.  To bring back common law environmental protection requires the RMA to be scrapped, and replaced by a 'codification' of rational common law principles of environmental protection.
2. Even with the codification of common law, without clear ownership there is still no protection. To work effectively, property rights-based environmental protection needs an owner to stand up for his property, yet nearly half of this beautiful country and most of the seabed, foreshore and waterways still have no property rights attached. Most of it is essentially un-owned, leaving a government department as the conservator of record of much of the country's waterways.  The Environment Report should be regarded as a report card of how well they've carried out the role.

"Chapter 13 "
Whatever the real news about the release, non-release or pseudo-release of the last chapter of the five-yearly Environment Report, the fact remains that water quality in some places is going to get worse, and that it will be "non-point sources" such as agricultural runoff (those that command and control resource management can't so easily control) that will play a large part in that diminution.

The answer is to give greater power to those who value the resources under threat, and there is no greater power in law than the protection of property rights and the legacy of common law -- if only these were allowed to function as they should.

UPDATE:  Professor of  pastoral agriculture at Massey University Jacqueline Rowarth shows that there are no decent voices ranged on the side of farmers in this latest attack, (and, also, that the science side of Massey University is as infected with political correctness as the humanities side of the campus), and that top-down solutions are likely to be the only ones countenanced in the latest round for the dirty dairying debates.  

In this audio excerpt from Radio New Zealand she challenges none of the conclusions of either the actual or the bootleg report, and appears to implicitly regard any possible solution to necessarily involve more of the top down central-planning solutions that have led to the problems reported.  "We" need to stop pointing the finger; instead she says "we" clearly need to be "redesigning New Zealand's agricultural systems" -- on which the country's smartest brains need to be working -- and that playing the blame game will put off the smart brains.

Note both the brazen collectivism, the refusal to countenance evidence and -- instead of any suggestion of bottom-up solutions -- the overt reliance on central planning to solve the reported ills.