Scoop has an Ethical Paywall
The Foreshore and Seabed Act - Analysis
PRESS RELEASE
Hone Harawira
For Immediate Release
17 September 2010
10.30am
The Foreshore and Seabed Act (2004) V The Marine and Coastal (Takutai Moana) Act (2010)
A Comparative Analysis
| QUESTION | FSSA | MCA | WHAT’S THE DIFFERENCE |
| What entity is the FSSB vested in? | “Crown ownership” | A new legal entity - “common space” | NONE – Under the “common space” of the MCA, the Crown retains statutory authority over the fssb, and determines who gets what rights to the fssb |
| What rights are Māori offered? | “Customary Rights Orders” allow Maori to fish, gather, and visit significant sites | “Customary Rights” which are the same as the FSSA 2004 | NONE – No Customary Rights Orders were issued under the FSSA. Hapu and Iwi are expected to find it difficult to prove “continuous” relationship to the fssb under the MCA, due in large part to the actions of the Crown since 1840. |
| When do Māori have to lodge an interest? | None given | 6 years | If Māori do not lodge a customary right claim under the MCA within six years, then they will miss out all together. |
| Do Māori have the right of access to the Courts? | Yes, but the threshold for a successful case is too high | Yes, but the threshold for a successful case is too high | NONE – Under both bills, Maori have to show that they held “exclusive use and occupation of the area since 1840 without substantial interruption, and that the area in question was held in accordance with tikanga”. The Prime Minister himself has said that the threshold of the test under the MCA is so high that most Maori will not be able to meet it. |
| Does the bill discriminate against Maori? | Yes | Yes | NONE – Under both the FSSA and the MCA, Maori who can prove it, will have their title registered as “Customary Title” and be required to adhere to regulations that foreign owners, and private owners of the fssb do not. |
| Does this bill confiscate Maori rights? | Yes | Yes | NONE – The FSSA was a direct confiscation. Under the “common space” of the MCA, the Crown retains statutory authority over the fssb, and determines who gets what rights to the fssb. Maori rights are still confiscated |
| Do rights granted under the bill amount to much? | No | No | Under the FSSA, Māori rights were stuck in 1840. Under the MCA, Māori rights are extended to include participating in more decisions, and a claim to certain non-Crown minerals. But rights granted under both pieces of legislation are at the whim of the government of the day |
| Are Māori happy with the legislation? | No | No | NONE – In 2004 40,000 Māori marched on parliament to protest the FSSA. In 2010, Māori commentators, iwi leaders, political activists and both Maori Party co-leaders have all expressed their concern with the MCA. No Maori leader has come out in support of the bill. Maori are happy with neither bill. |
ENDS
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