Saturday, May 22, 2010
David Round: Questions and Answers About the Foreshore and Seabed
Q. If the government’s proposal is that the foreshore and seabed be held as ‘public domain’, and not as the property of the Crown, then what is the Attorney-General, a Minister of the Crown, doing handing out rights to it in private consultation with Maori?
A. A very good question. Next.
Q. The Attorney-General condemns the present Foreshore and Seabed Act on the ground that it takes away the right of one class of subject (Maori would-be claimants to foreshore and seabed) to seek their remedy in the courts. Yet the very same government of which he is a member, and indeed principal adviser on constitutional issues, has just made a statute, the Environment Canterbury (Temporary Commissioners and Improved Water Management) Act 2010, which (among other things) takes away the right of Canterbury communities to appeal to the Environment Court in relation to an application already under way for a water conservation order, and even allows the government to, in effect, suspend the Resource Management Act. This statute has been described by Professor Philip Joseph, author of Constitutional and Administrative Law in New Zealand, as ‘constitutionally repugnant’ and a ‘constitutional affront’. Would you detect an element of hypocrisy here?
A. I myself would not use the word hypocrisy. I would prefer something more like ’brazen perfidy’. But suit yourself.
Q. But surely the basic point is that Maori have lost their right to go to court to have their claims heard.
A. Two answers. First, that right to go to court, such as it was, had not existed since some time in the nineteenth century. It had been long extinguished, and that extinction was confirmed by the 1963 Ninety Mile Beach case. In 2003 an irresponsible and politically-inspired Court of Appeal decision summoned up this right from the dead, and it therefore existed for a year or so until the 2004 Act was made. But all the 2004 Act did was to restore a very long-standing status quo.
Second, it is a complete lie to say that after the 2004 act Maori do not have the right to go to court. If you take the trouble to read the Act, you will see that it makes ample and detailed provision for Maori now to go to the Maori Land Court and the High Court to have several sorts of customary right recognised.
Q. The Attorney-General has also claimed to be concerned about democracy. He points out that of the almost 4,000 submissions to the Select Committee hearing Labour’s Foreshore and Seabed Bill (now Act) opposed the legislation.
A. And I suppose he might add that about 40,000 marched against it. But then, when about 50,000 marched against the government’s mining-in-national-parks proposals just the other day, the government was able to dismiss that as just a vocal unrepresentative minority. And the government has no difficulty in depriving Cantabrians of their elected regional council completely. Cantabrians simply will not be able to vote for regional councillors at all in this year’s local body elections. So democracy really cannot be the reason. Recall the petition against the anti-smacking law; as I recall, more people voted against the anti-smacking law than voted National at the last election…
Q. Ngai Tahu, certainly, and I daresay other tribes also, were organising ~ orchestrating, one might even say ~ responses to the government’s proposals.
A. As they have every right to do. One has to admire their organisation, while at the same time regretting that most non-Maori New Zealanders appear to be permanently under the influence of some incredibly strong stupefying drug which deprives them of the ability to think or notice what is going on. Usually, however, whenever submissions to anyone on any topic are being considered, a distinction is drawn between carefully considered individual submissions and mere repetitive form letters. I doubt that the government will be drawing that distinction here, though; it will be only too eager to consider all submissions in favour as unprompted individual original thoughts.
Q. It would have to do the same to submissions against the proposals also.
A. True, but they actually will be individual thoughts, because there was no organised apparatus for generating huge numbers of submissions. On the contrary.
Q. How many submissions were made on the matter, actually?
A. Do you know, I don’t know. I’ve not seen the figure mentioned anywhere, and my Google search has not revealed any figure. Wouldn’t it be funny if a majority of submissions opposed the proposals? What would poor Chris do then? He placed so much faith in the number of submissions on the 2004 Bill. Someone should inquire under the Official Information Act. Muriel?
Q. Perhaps the figures are not out yet because the submissions have not been analysed yet.
A. Always a possibility. And what point is there in analysing them when the Prime Minister announced, just eight days after the closing date, well before submissions could be analysed, that the government was going ahead with its proposals?
Q. I thought I was asking the questions.
A. Sorry. Ask me a hard one.
Q. The Attorney-General, leading these proposals, is also the very same man who, in his capacity as Minister for Treaty Negotiations, will be negotiating with the tribes coming to his door to claim customary title. Is that evidence of a conflict of interest?
A. Well, Ministers of the Crown often hold more than one portfolio, and other things being equal those two are not necessarily incompatible. What is really worrying, though, is his very obvious partiality. As a barrister he acted for Ngai Tahu, and has described their settlement with the Crown as one of the highlights of his life. He is still very obviously on their side. He has said that it would be preferable if Maori negotiated directly with him for customary title, and has shown every willingness to be prepared to grant it. He does not come across as an impartial appraiser.
Q. Maori would still have to prove customary title, though, wouldn’t they?
A. Well in one sense yes, but Chris will not be demanding very much proof ~ and his negotiations with claimants will not be subject to any form of public scrutiny, there will just be a deal struck in private. Moreover, a substantial element of the required proof will be ‘tikanga Maori’ and there will be no prizes for guessing what that will hold. I see that Ngai Tahu maintain that ‘mana is inherent and enduring’, and that iwi and hapu should not have to prove that their rights exist. Their rights should be presumed to exist, and it should be for the Crown to show that they have been extinguished. It is a reasonable conclusion, then, that Ngai Tahu may well claim that it still possesses a customary title, according to its own ‘tikanga’; and that being so, there will be an end of the matter.
Q. But there will still be public access.
A. For the time being, certainly. But I wouldn’t be surprised if at some later stage even that were to go. We should not necessarily see this proposal as the last step. It is only one stage in a long process. This customary title could well develop into a fuller ownership, especially as the phrases ‘public domain/takiwa iwi whanui’ have not yet been defined. But customary title holders will at once be able, under an amended Resource Management Act to have very substantial influence on developments in the entire coastal area. They will be able to approve or refuse approval to all applications for coastal permits, and will not even have to give reasons. Nothing will be able to be done without their permission, for which, of course, payment might well have to be made…..
Q. Shouldn’t we just trust the government?
A. In my great-great uncle’s immortal words, still quoted in the family, ‘if you trust anyone, you’re simple’. Most particularly you should not trust governments. Sacred Scripture, as I recall, also tells us ’Put not your trust in princes’. All democratic constitutional arrangements are based precisely on the principle that we cannot trust our rulers. If we could trust them, we would not need democratic elections and accountability. Don’t be a fool.
at 9:44 AM