OPINION
Dr Muriel Newman
It is now 100 days since Christopher Luxon’s new Government was formed. Significant progress has been made in fulfilling Coalition pledges to wind back co-governance and race-based privilege.
The Three Waters legislation, introduced by Labour to give iwi leaders control of freshwater, has been scrapped. Councils are now back in charge of their water services and infrastructure.
The Maori Health Authority, established by Labour to give iwi leaders control of the health system, has also been scrapped, ending the appalling culture of race-based entitlement in health care – and thwarting an attempt by iwi leaders to use the Waitangi Tribunal to prevent the repeal.
The fact that the taxpayer-funded Waitangi Tribunal even agreed to an ‘urgent’ inquiry to stop the new Government from carrying out an election pledge, shows only too clearly how the Tribunal has been ‘captured’ by radical Maori attempting to usurp our democracy.
For a government looking for cost savings, disestablishing the $14 million a year Tribunal – with 65 staff, a Chairman, and 20 members – should be considered.
Another important election promise specified in the 100-day plan was to “Stop all work on He Puapua”. While Three Waters and the Maori Health Authority were high profile He Puapua policies, they were only the tip of the iceberg.
He Puapua was, of course, Labour’s ‘secret’ plan to replace democracy with tribal rule by 2040 – the 200th anniversary of the Treaty of Waitangi.
It was developed in 2019 by former Labour Minister Nania Mahuta – in collaboration with iwi leaders – under the guise of implementing the United Nations Declaration on the Rights of Indigenous Peoples.
Fearing a public backlash if the plan was revealed, Labour kept He Puapua hidden from their New Zealand First coalition partner and from voters during the 2020 general election.
Despite having no public mandate, once Labour won the right to govern alone, He Puapua was rolled out at pace.
The main mechanism used to transfer power to iwi was 50:50 ‘co-governance’. While it sounds democratic, by ensuring iwi had the power of veto, co-governance was totalitarian in effect.
Labour’s justification for co-governance was their claim that Maori are Treaty ‘partners’ with the Crown. But that is a fiction, as this week’s NZCPR Guest Commentator the former Judge and Law Lecturer Anthony Willy explains:
“The plain fact is that it is constitutionally impossible for the Crown to enter into a partnership with her subjects. She can as she did in 1840 make promises to them but by definition, the Crown is supreme, and the people are subject to her laws. The Constitution Act 1986 provides that:
S.2 The Sovereign in right of New Zealand is the head of State of New Zealand, and shall be known by the royal style and titles proclaimed from time to time.
“Currently the Sovereign of New Zealand is King Charles III. By definition it is impossible for him to share that Sovereignty with any other person or body of persons. To do so would mean he was no longer the Sovereign in terms of s.2 above. The position and status of our Sovereign has been so well understood for the better part of the last two hundred years, that it is demeaning to have to explain it. But then there are none so blind as those who will not see.”
Even though it is constitutionally impossible for Maori to be ‘partners’ with the Crown, that inconvenient truth did not stop Labour from using it to justify He Puapua.
Labour established the Office for Maori Crown Relations – in collaboration with iwi leaders – in 2019 to drive the Treaty partnership agenda. With a budget of $450 million and the responsibility for managing Treaty settlements and the Marine and Coastal Area Act claims process, its 189 staff are also tasked with embedding Maori-Crown partnerships within the public and private sectors.
Their latest 2023 Annual Report outlined their goal: “Guide the Crown, as a Treaty partner, across the bridge into te ao Maori and facilitate Maori interactions with the Crown”. In other words, undermine democracy by embedding Treaty ‘partnership’ principles throughout the state sector and beyond.
They reported on progress: 37 Public Service Chief Executives and staff had undergone cultural indoctrination; State Sector guidelines had been developed for incorporating the Treaty into legislation; and direct Treaty advice had been provided on 22 Bills and 214 Cabinet papers.
While last year’s Annual Report contained 37 references in total to a Treaty “partnership” or “partner”, the briefing papers prepared for incoming Ministers contained none.
But removing references to Treaty partnerships and other core values underpinning He Puapua is not the same as removing the agenda.
In reality, He Puapua will never be stopped as long as the Office for Maori Crown Relations remains operational.
This agency needs to be disestablished by the Coalition Government if it is to uphold its election promise of ‘stopping all work on He Puapua’. Not only that, but all of the He Puapua changes instigated over the last four years by the agency, need to be reversed.
These include a requirement to ‘demonstrate a commitment to the Treaty’ by groups like the Real Estate Authority and hundreds of other private sector organisations that are associated with the Government though registration or funding.
In fact, such is the success of the Office for Maori Crown Relations in promoting the partnership fiction since 2019, that it infects virtually every aspect of our society. Nothing short of a Government instruction to remove references to the Treaty from all legislation and regulation – apart from those associated with tribal settlements – will be sufficient to eradicate this cancer on our democracy.
However, there’s a far more pressing problem looming. It’s a matter that was addressed in the coalition agreement between National and New Zealand First, but not included in their 100-day plan of action, despite its urgency.
It’s their pledge to ‘fix’ the Marine and Coastal Area Act: “Amend section 58 of the Marine and Coastal Area Act to make clear Parliament’s original intent.”
If this is not done, Maori will become the legal owners of virtually all of the entire coastline and Territorial Sea of New Zealand. This includes 10 million hectares of the richest natural resources in the country – including vast reserves of invaluable minerals such as rare earths, which Maori will own to the exclusion of all other New Zealanders.
Right now, claims for the coast are progressing at pace. Literally, hundreds of cases are being readied for Court, with dozens of hearings already underway – see HERE. And with a recent Court of Appeal decision effectively lowering the bar for claimants, not only are most claims likely to succeed, but new claimants are now attempting to join the process.
Many claimants are also planning applications for wahi tapu areas that would exclude the public. If these are approved by the Court, iwi will have the right to appoint wardens to police their areas and issue trespass fines of up to $5,000.
The need to “fix” the Marine and Coastal Area Act has arisen because the legislation, which was introduced in 2011 by John Key’s National Government to satisfy the demands of their Maori Party coalition partner, is fundamentally flawed and poorly drafted.
This misguided law replaced the 2004 Foreshore and Seabed Act, which Helen Clark’s Labour Government had introduced to re-affirm Crown ownership of the foreshore and seabed following a tsunami of claims triggered by activist Judges controversially declaring that Maori customary title might still exist in the coastal marine area.
Before changing the law, National launched a public review of their proposal: Instead of the country’s foreshore and seabed being vested in the Crown on behalf of all New Zealanders, it would become ‘public domain’ so Maori could seek title through the courts. Crucially, Prime Minister Key re-assured New Zealanders that “if there was not wide support then the current law could remain in place.”
In spite of 91 per cent of submissions opposing the law change, National rammed it through anyway, creating the debacle we face today.
There was huge outrage over the fact that applicants were to be taxpayer-funded – up to $458,000 a claim – while those opposing the claims had to fund themselves. That’s why almost 600 opportunistic claims for the coast flooded in just before the 7-year deadline – with virtually no opposition at all.
Taxpayer funding has created another massive gravy train for Treaty lawyers, which is costing taxpayers hundreds of millions of dollars. For a government under pressure to cut costs, why is this racket not being addressed?
Taxpayer funding has also led to the corruption of justice itself as the adversarial process which underpins High Court hearings has been fatally compromised, since there is virtually no opposition to the mountain of claims. The Attorney General, who could have assumed the role of ‘contradictor’, has instead opted to ‘assist’ the Court. This means that the whole coastal claims process is no longer delivering justice – instead it’s delivering whatever Maori want.
There was also huge criticism over the new law establishing two pathways for lodging claims – the High Court which has 202 claims and direct negotiation with the Crown with 385 claims.
But the system is unworkable as Justice Churchman explained last year: “A situation that remains unresolved is the existence of two separate pathways for the obtaining of recognition orders. Some applicants have both High Court proceedings and direct engagement applications. Other Crown engagement only applicants are potentially seriously disadvantaged in that, if the Court makes CMT orders in favour of High Court applicants, that effectively excludes the opportunity for direct engagement applicants to subsequently obtain CMT orders in respect of the same area. This would appear to be a problem that can only be resolved by legislative means.”
However, the fatal flaw in the legislation is the requirement that applicants must have held their claimed area according to “tikanga” or custom. Controversially, this is not determined by Judges, but by Maori advisers. As a result, hearsay oral history is accepted as evidence, and claimants end up arguing that their tikanga has precedence over others so they can gain a greater slice of the pie.
In what surely amounts to another miscarriage of justice, the courts have determined that tikanga is a dominant consideration that overrides the stringent property rights tests included in Section 58 of the law, that require applicants to have held their claimed area “exclusively” and “continuously” since 1840.
Compounding the problem, Judges have introduced the new legal concept of “shared exclusivity” – to accommodate the fact that virtually all of the claims overlap. Instead of interpreting the law according to the wishes of Parliament and ruling out competing claims that breach the ‘exclusively’ held requirement, they made new law to ensure that most of the claims succeed.
What all of this means is that National’s assurance that no more than 10 per cent of New Zealand’s 20,000 km coastline would end up being controlled by Maori, could not have been more wrong. If the law is not changed, virtually the entire New Zealand coastline out to the edge of the Territorial Sea, will be transferred into the ownership of competing tribal groups.
In effect, the Marine and Coastal Area Act has perverted the course of justice, delivering the exact opposite of what the Government of the day promised.
This is such a gross breach of trust that it cannot be allowed to continue. The Marine and Coastal Area Act is a total mess. It is so fatally flawed, that the only remedy is repeal – cancelling the claims and restoring the 2004 Foreshore and Seabed Act.
In 2002, when Helen Clark’s Government faced an escalation in marine farming applications at a time when an urgent law change was needed, she introduced a moratorium to provide the breathing space the Government needed to change the law.
Christopher Luxon should do the same – declare a moratorium to halt the claims process, while the necessary law changes are enacted.
https://preview.apester.com/media/65e8ec950650a91d38194c8f?src=link
Please note:
If you feel strongly about this matter, why not contact Coalition MPs and share your views. All MP email addresses can be found through the “Parliament” tab at the top of our NZCPR website HERE. Key MPs are:
National Leader and Prime Minister Christopher Luxon – [email protected];
New Zealand First Leader and Deputy PM Winston Peters – [email protected]
ACT Leader David Seymour – [email protected]
Attorney General Judith Collins – [email protected]
Minister of Justice and Treaty Negotiations Paul Goldsmith – [email protected];
Minister for Courts Nicole McKee – [email protected]