Sunday, May 9, 2010

David Round: National plans to sacrifice the Foreshore & Seabed for long term power

For a man who claims that ‘the government is genuinely interested in the feedback of all New Zealanders’ on the foreshore and seabed issue, the Attorney-General does not strike the casual observer as someone with an open mind. Someone criticises the proposals; instantly he leaps to defend them. He displays absolutely no interest in listening. As you know, I have criticised the proposals; one of the two columns of mine already published here was first published in the Christchurch Press and the Otago Daily Times. Mr Finlayson has replied to me in the ODT, although not, for some reason, in the Press, but his reply, in between the personal sneers, is based on so ludicrous a travesty of my objections that they are clearly the work of someone with a completely closed mind who is determined not to understand or to listen.

Such an attitude is, in the immortal words of our Deputy Prime Minister, ‘not a good look’. From time to time I have sympathy with politicians; their lives are exhausting and unhealthy, they have no time to think properly about anything; the stressful lifestyle leads inevitably to marital break-up, fat, high blood pressure and early death. They lead ghastly lives. And there is no public sympathy for them. They are all too easily looked upon as overpaid venal unprincipled liars. Public resentment of politicians does sometimes seem to be pathological. One thinks that the public may have an anger management problem.

But on numerous occasions the public’s contempt for politicians seems to be entirely justified. Here is such an occasion. The foreshore and seabed issue is not a minor one. Treaty claims and relations between the races have been a major and growing issue for two decades. They are an aspect, indeed, of the great issue; whether New Zealand’s future is to be as one nation, where Maori work with the rest of us, or whether we are to be two nations, a working white one and a parasitic Maori one, half landlord and half criminal. This issue has long been looming. The people see it clearly. Only the politician class fails to see it. There are some honourable exceptions, Dr Don Brash foremost among them. His Orewa speech single-handedly brought National back from what might well have been electoral oblivion and extinction. Yet, from stupidity and shortsightedness, the National Party already prefers to forget this, and forms an alliance and behaves with absurd unnecessary generosity to a racist party which is motivated, at least in part, by hatred of other New Zealanders, and which is working solely for the benefit of its own race and the disadvantage of the rest of us.

I have raised this point with several National party people. I receive only one reply ~ that National must cement a relationship with the Maori party in order to establish it in power for a long time to come. That will suffice as an explanation, doubtless, but it is quite inadequate as a defence. The National party at the last election was the party which, more than any other, was avowedly opposed to racial separatism. In a quiet way it still echoed the Orewa speech. It even had a policy of abolishing the Maori seats. This approach of National’s was a significant part of its electoral appeal. The foreshore and seabed issue is not just a little detail which may be abandoned in the business of necessary compromise; it is a major part of a major policy issue. The National Party is now proposing a complete reversal of a major part of its election stand. We all know that compromises are necessary in politics. We showed our maturity on that point when we accepted without complaint the shelving of the promise to abolish the Maori seats. But there comes a point at which compromises come at too great a cost. When a major principle with the most far-reaching consequences is being scrapped, it is no reply simply to say that National has to do it to stay in power. Is that its only purpose, to stay in power? What is it staying in power for?

That attitude is short-sighted as well, for at the rate National is going it will not even have the opportunity to stay in power after the next election. It will have been thrown out by a disgusted electorate. The Maori Party might or might not still be there, but National will not be in a position to enter into a coalition with it.

At this point let us be absolutely fair and say some good things about Helen Clark and the last Labour government. This is something I am not accustomed to doing often, but we will rise above petty party politics and give them their due. They refused to sign the United Nations Declaration on the Rights of Indigenous Peoples. They refused to allow the Maori sovereignty flag to be flown on our national day. And they gave us the Foreshore and Seabed Act 2004, which is looking more sensible by the minute. Well done Labour. Stick to policies like that, and you may be back on the Treasury benches sooner than you expect. Don’t give up hope; well before the next election world wide economic catastrophe will be biting deep here as elsewhere, and although it may not be the fault of any New Zealand government nevertheless the government will very soon be being blamed for it. If Labour gets its act together ~ that, of course, is the test ~ it could well get back in. Why Labour would want to preside over the looming chaos and misery I couldn’t say, but it is perfectly possible~ I put it no higher at this stage ~ that our present government could last only one term. If it should, its betrayal of its promises and the non-Maori population of this country for the sake of a little short-sighted political advantage will be part of the reason.

I shall not repeat here the substance of my earlier columns, but I shall have to remind you of one or two things in order to reply to Mr Finlayson. With a personal touch he begins by casting doubt on my competence as a teacher of law. “With respect”, he says, “I hope this is not the version of the rule of law [Mr Round] teaches his students”. (All lawyers of course will be aware that the phrase ‘with respect’ very often means ‘with no respect at all’) You may not believe this, readers, but before the election Mr Finlayson had rather more respect for me. He once even sought my permission to quote in the House from an article I had written on Maori issues in the Otago University Law Review. My sentiments in that article expressed the same doubts about the Treaty industry that I express now. Mr Finlayson thought I was very wise. He was quite another kettle of fish then. But now he is a powerful man. What is his real opinion? Which is the real Chris? Is there one at all, I wonder?

Mr Finlayson sneered at me because he says that I believe that judicial ‘mistakes’ should not be corrected. In 1963 (he says ‘the 1950s’, but with respect Chris I think you mean 1963) the Court of Appeal decided the Ninety Mile Beach Case. I condemned the 2003 Court of Appeal for overturning this. Chris says that this means that I consider that judicial mistakes ( i.e Ninety Mile Beach) should be adopted and retained simply because they have been around for a while, whereas he, noble pure soul that he is, ‘was under the impression that the higher courts had a duty to correctly state the law’.

Now this is nonsense. The 1963 decision of the Court of Appeal was regarded by everyone for forty years as good law. Acts of Parliament had been made which assumed it was good law. No-one considered it a ‘mistake’. It had entered into our law and become an integral part of it. Its reversal in 2003 was not the mere correction of some error; it was an utter overthrow of long-established principle. Not just I, but all lawyers, were ‘under the impression’ that the Court of Appeal would reverse its earlier decisions only in pretty exceptional cases, of which this was not one. The overthrow was perpetrated by judges behaving not as judges but as politicians, which is something that we were ‘under the impression’ judges were not supposed to do.

Chris quite misrepresents the entire situation. He says that Labour’s 2004 Act took away the right to go to court and test their title to foreshore and seabed. But what he does not say is that that ‘right’ had, for a very long time, not existed at all. The ‘right’ was only created by the 2003 decision. All Labour’s 2004 Act did was to restore the long-standing legal situation, one that was confirmed by the 1963 case but which had in fact prevailed since the nineteenth century.

I worried about the terms ‘public domain’ and ‘takiwa iwi whanui’. I pointed out that these terms were undefined, and that the undefined Maori term, in particular, might well be used in future as an opportunity for undesirable interpretation. Chris’s reply to this is merely to say that these terms will of course be defined in the statute when it is eventually made. Well that is not good enough. We want to know the meaning of these terms now. Does Chris have definitions for them now? If he is just going to make up the definitions in future, how do we know they will be satisfactory ones? To agree to something not yet defined is to sign a blank cheque. If, on the other hand, Chris has definitions for them now, why were they not put in the discussion document?

As a matter of principle it is very unsatisfactory to have any property defined as ownerless. In a hundred ways people will want to deal with someone who is responsible for it. With whom will a local council deal, for example, in a matter to do with beaches? The law will inevitably have to find someone like an owner ~ and if there is no ‘owner’ then it may well be that the law is forced to find the next best thing to an owner. Who will that be? Why, it will be the person with customary title. Who else is there? In the absence of the Crown as owner, customary title, as the next best thing, may well develop into a quasi-ownership. Rest assured, this proposal, if it goes ahead, will not be the end of the ownership question; especially as many Maori (sensing the government’s weakness) are now insisting that public domain is not enough.

I pointed out that under this proposal Maori would have veto rights over coastal permits and a very great power to influence decisions on whether coastal developments went ahead. Chris claims that this is a contradiction. He says: ‘Mr Round suggests that grants of customary title…would mean simultaneously that no-one will ever be able to put a marina on the foreshore ever again, but that all beaches will be covered in private hotels. These two scenarios are obviously contradictory.’ This misunderstanding of my argument must be deliberate. I made one point here, which was that henceforward any development in the whole coastal area, as well as any grant of a ‘coastal permit’ under the Resource Management Act, would require the consent of whomever had Chris’s ‘customary title’. Those Maori could refuse their permission; they could grant it, and doubtless would if they were offered a sufficient financial sweetener. We have seen sufficient sweeteners recently to disabuse us of any notion of Maori generally being high-minded spiritual environmental guardians. It is perfectly possible to imagine that any number of big resorts will be built on the coast (not actually on the foreshore, Chris, I never said that) with the purchased permission of the tangata whenua.

Chris goes on to say resort development will be impeded, because the Resource Management Act (and the Overseas Investment Office) will continue to act as guardians of the public interest. Really, he should have been on the stage. The Resource Management Act? The RMA, as we often call it, has been a great disappointment in terms of the environmental protection it offers, and Chris’s government is working now to weaken it further. And as for that well-known rubber-stamp the Overseas Investment Office..well, pull the other one.

It is Chris’s argument, indeed, which is riddled with dishonesties and internal contradictions. He says that the possibility that Maori might obtain customary title to all of the coast is ’in the realm of fantasy’ implying that title will be recognised only to a little bit here and there. But he has stated elsewhere that Maori may well seek title to much more; indeed, he gives the impression elsewhere that he is actually keen that Maori should have title to practically everywhere. He cannot be unaware that Maori are keenly investigating the possibility that they should obtain such title. He speaks of customary title as being part of the common law; in that case, why is it necessary for a statute to create it? He speaks of Maori seeking customary title in court, and very carefully avoids admitting that under his proposals Maori will not have to go to court at all. They may if they want to, but his proposal is that Maori may also obtain title by private negotiations with him and his successors, signed off by the Cabinet, but with no judicial scrutiny or public input whatsoever. If he cannot even be honest about that, what confidence can we have that he will defend our interests when a claim to title is made?

The last twenty years have seen another long round, almost completed, of full and final settlements of Treaty claims. In these claims the foreshore and seabed never came up. This proposal is not one of righting some ancient injustice and satisfying a longstanding claim. It is a proposal to give Maori something they have never claimed before and never, until that disastrous 2003 decision, considered themselves entitled to. It is not even as if Maori now are still a separate people, living distinctively different lives in their own parts of the country. Nearly all Maori ~ not 100%, certainly ~ are people living like the rest of us. The ‘tikanga Maori’ which will be produced to ‘prove’ customary title will be a modern invention. The only title recognised by ancient Maori was occupation, obviously impossible in the case of the ocean; and that occupation, in any case, was based on nothing more sophisticated than brute force. The only ‘right’ was that of the stronger.

Chris ends his reply to me with a lovely little touch, showing how generous and loving Maori are and how we have nothing to fear. He quotes ‘a local man at a public meeting in Gisborne [who] told the audience what a wise man of his tribe had said to him in 2003: “I don’t want to stop people coming to my beach, he said. I want my grandchildren to be able to walk along the Ninety Mile Beach, and I want the families from the north to come and walk on my beach.”’ Well, that’s lovely. But note one word ~ ‘my’. It is his beach, this wise old man’s ~ not ours, his. And although he may well want others on ‘his’ beach, it is still to be ‘his’; and Chris can hardly be unaware that many Maori, like many Europeans, do not consider themselves under any obligation to share their property with the public. Why should they? Yet Chris is proposing that, one step at a time, our beaches, once ours, will become ‘his’.

If this unprincipled, dimwitted and short-sighted proposal goes through it will cause serious damage to the National Party and will set the seal on a divided New Zealand where future racial strife is a virtual certainty. No-one who supports it deserves to be in charge of our country.


Mike Butler said...

Couldn't agree more . .
One fundamental problem with treaty-related policy over the last 25 years is that no government has sought or obtained a clear mandate to go down this path. Therefore, lacking clear public support, initiatives such as the current proposal on the foreshore and seabed always provoke hostility. Finlayson described this hostility as from "mean-spirited people".
When I put this question to the select committee on the so-called Treelords settlement a couple of years ago, Tau Henare spluttered that parties of every political hue have had a policy on the treaty, and the election of any government should provide sufficient mandate.
That still does not give a clear mandate, since at election time parties have policies on a whole raft of issues, and treaty policy can be far down the list when getting rid of the government of the day, may be the key issue.
And what if voters don't like it? "Well I guess they could move to Australia, he said.
That's what thousands of people have been doing.
Another problem revolves around the nature of the negotiation between the Crown and Maori claimants. The treaty negotiations minister is supposed the be representing all the people of New Zealand, but often takes a position that has absolutely no consideration for the people of New Zealand, preferring instead to push his or her agenda.
For instance, if the minister believes that it is appropriate to give away customary title to large areas of the foreshore and seabed, his only consideration is whether he can get away with it without being hammered too severely at the next election.

Anonymous said...

The National Government's unauthorised and self serving accommodations with the Maori party already appear to be reaping the consequences of what can only be described as electoral fraud.

The NZ Herald 7 May 2010:

'Maori groups may have been making all the public noise about the proposed changes to the Foreshore and Seabed Act, but some powerful lobby groups are making even louder noises behind closed doors. Local councils are telling ministers that some of their proposals are unworkable and will create years of tension and legal argument over coastal management. Will the goodwill of the Maori Party be worth it?

Ross said...

Hi, David makes many valid and perceptive points. As he is discovering, Emperor Finlayson doesn't like having it pointed out that he is wearing no clothes! How easy political parties find it to spout fine principle when vying for votes but ditch all principle just to "do a deal" when in office!
The concept of 'crown estate' is fiercely complicated and a debate not exclusive to NZ. Yes, National are rushing this important constitutional issue and deserve the same criticism given to Labour when they ditched the Privy Council on a simple majority vote.
New Zealanders deserve better.
However, let's not lurch from this hasty proposal to one based on some emotional Kiwi idea of a "right' of access to the foreshore and seabed.
The subject is complicated and one needs to review the Codex Justinianus (AD 529) which established a set of clear principles with respect to "the commons". One also needs to note the tortuous machinations of the Kings of old who believed that crown lands were their personal property. And I think many landowners have discovered the problems associated with current bureaucratic attitudes arising from the 1991 Resource Management Act.
David worries about the idea that "nobody will 'own' the foreshore and seabed". He thinks "people will want to deal with someone who is responsible for it". Quite correct, but there is a difference between 'ownership' and a simple responsibility to 'administer' a resource.
I see no problem with declaring the foreshore and seabed, "public domain" and also requiring appropriate agencies of the state to 'administer' it.
What we saw, as a matter of everday actions of bureaucrats of various levels during implimentation of the RMA, was firstly, an unseemly scramble for control of various parts of the crown estate by competing agencies, and then a growing belief that the area under their particular 'control' was in fact "theirs" have and to hold and to become a nice little earner... a valued new 'revenue stream'.
In reality Joe public cannot roam freely over all parts of the foreshore and seabed. Much is held in legitimate private title down to (usually) Mean High Water... a significant difference to the legal inland limit of the area termed 'foreshore and seabed'...i.e. Mean High Water Spring. Significant portions of the remainder are legitimately granted occupancy rights...bridges, wharves, marine farms, marinas etc.. And although I too share many folk's horror at the antics of the "Treaty Industry", I believe Iwi should have legal opportunity to restore (in some objective and transparent manner) specific ancient property rights to use of the S & F.
In summary, I suggest the problem is not with the Government's proposal to rename the S & F, nor with its suggestion Iwi should be able to re-establish their usage rights.
The real problem is with the speed and lack of transparent debate of National's path; of their unwillingness to provide more precise definitions of proposed legislative terminology; and particularly of their suggestion that usage rights will be developed behind closed doors and without reference to our independent and (yes, imperfectly) objective judiciary.
By all means flay the government for its poorly thought out legislative proposals, but don't just swap one hasty statute based on mainly emotional reactions with another equally based!

Anonymous said...

We talk in euphemisms and that is part of the problem. To say "The Crown" we mean the New Zealand people, do we not? The Queen herself would not be unduly bothered either way. So our representatives are/is the government and so is the crown.To say a Maori/Crown partnership, is not helpfull to real understanding as it allows us to talk about ourselves as a distant far off entity and somehow separate from ordinary New Zealanders. If we say Moari and the rest of us want to form a partnership , well we already have one - it's called citezenship. All citezens should have the same rights, so to give more rights to one grouop is outright racism. That is why the seabed and foreshore treaty is a nonsense. Why should we have a treaty to give ownership from all of us to a small community of our fellow citizens. It is a divisive move which would be out of it's disguise if we stopped referring to "the Crown".

Graeme said...

There is a further dimension to all of this. By definition the Maori Party serves, and is only interested in, one segment of our society. Thus, like a union, to remain in being they must continue to find selective causes/demand ("for their people") to fight. Accordingly, from the National (Party that is) perspective where is the end game. Surely if National is to continue negotiating and conceding here and there where do they intend to stop? If they cannot answer this question now then I suggest great caution should be exercised before given them another term in the front office.

Anonymous said...

I totally agree with David and like minded people that beleive that we are/should be one people, however talking about it seems to be getting us no where fast. the Government refuses to listern to the view of anyone that does not support the Maori extemist. I am 6th generation New Zealander, My ancestors have fought hard and spilled their blood for this great country and for what? to have it given away to a minority who beleive they should have more rights and priviledge than the rest of us...I for one say NO not on my watch. There has been too much talk over the past 2 -3 decades and it has made things worse not better. The time for talk is coming to an end and the time for action is nearing, I for one will fight for this country I love and pay the ultimate price if necessary to ensure the my children and their chidren can live in a place where they are valued and not treated by the traitors we have in power now as second class citizens.

I voted National at the last election but will have to think hard before I do that again, the problem is there are no real alternatives.