Mike Butler: Who’s pandering to whom?

Maori Party MP Hone Harawira said that Monday's agreement between the National Party and the Maori Party on the foreshore and seabed was “pandering to rednecks”, but closer inspection reveals the pandering goes the other way. The agreement aims to achieve an enduring solution to the seven-year wrangle but looks like another back-room deal done in the hope that most voters won’t notice.

Part of the constitutional arrangement between the National Party and the Maori Party, after the 2008 election, was an agreement to review the controversial Foreshore and Seabed Act 2004. This agreement was a backroom deal, but could have created an opportunity for the government to poll everybody on the way ahead for Crown-Maori negotiations.

For instance, if 51 percent of voters supported the 2004 Act, or wanted the Act repealed, any government could point to a clear mandate, and everyone would have to accept it. That’s open democracy.

However, what we got was a review of the 2004 Act by a panel was hardly impartial. That panel unsurprisingly issued a report in July last year that recommended repeal of the 2004 Act, proposed a one-off national settlement, and establishment of a bicultural body with oversight of the whole coastal marine area. It also proposed regional and national negotiations directly between Crown and Maori groups, with the Crown representing the public interest.

Attorney-General Chris Finlayson issued a consultation document on March 31 this year setting out options for a possible replacement of the 2004 Act. The consultation process, which ran until April 30, included public meetings and private hui throughout the nation. Submissions were invited, and a printed questionnaire was provided to elicit specific responses to aspects of the way Finlayson viewed the issue. That was the format to provide submissions.

Although Finlayson said: "We are very interested in hearing New Zealanders' views", (1) the consultation process was rushed, the 1500 submissions received were not released, and there was no acknowledgement of a 6533-signature petition seeking to retain the foreshore and seabed in Crown ownership.

The next development occurred while the news media was distracted by former Ministers’ credit card spending, and the football World Cup. Prime Minister John Key called a meeting with the Maori Party and the Iwi Leadership Group, and out of that meeting came an agreement to repeal the 2004 Act. A new Act, in place by the end of the year, would remove the foreshore and seabed from Crown ownership, making it a public space owned by no one. Maori would be able to seek customary rights and customary title through the courts or by negotiating with the Government.

That was backroom deal No 2.

Reaction to the agreement has been mixed: Maori Party MP Hone Harawira said Key was "pandering to the rednecks", left-wing blogger Chris Trotter said the Maori Party had caved in, while Labour leader Phil Goff said the repeal of the 2004 Act was "cynical ploy" by National and the Maori Party to save face. A spokesman for Ngati Apa, the group that sparked the controversy in 1997 in an effort to get a permit to farm mussels, adopted a wait-and-see approach. New Zealand First leader Winston Peters said it was a divisive decision that would lead to a flood of claims and years of tribal in-fighting.

Key stressed that non-Maori New Zealanders were welcome to be involved in consultations, he stressed that there were hui held and submissions received, and also stressed that there would also be a select committee process before the legislation was passed. He argued that it would be difficult for most tribes to prove exclusive use and occupation since 1840, which was necessary win customary title.

However, anyone who has tried to present a submission through the select committee process, especially regarding treaty settlements or Maori claims, will know that once the agreement is reached, and if the Government has the numbers, the select committee process is window dressing, since the outcome is already known.

Who represented the non-iwi sector in Monday’s foreshore-seabed negotiation? (Notice that I wrote “non-iwi”, because this includes the bulk of the Maori population.) Prime Minister John Key was there, of course, with Attorney General Chris Finlayson, who has spent a significant part of his stellar career suing the government on behalf of Ngai Tahu. (2) The Maori Party was there, of course, representing less than two percent of the party vote. The meeting included Mark Solomon, who is head of the Iwi Leadership Group and represents Ngai Tahu, the tribe that under the agreement could claim virtually the entire South Island foreshore and seabed.

And what is the Iwi Leader’s Group? Solomon described the formation of that group on the Q&A television programme two weeks ago. He said that after the Labour government passed the Foreshore and Seabed Act in 2004, and when the National Party was calling for the abolition of the Maori seats in the 2005 election, he concluded that parliament could extinguish the treaty, so visited the Maori Queen, and invited between 30 and 35 iwi chairmen to his marae to discuss a collaborative approach. That developed into an Iwi Chairs Forum that became the Iwi Leader’s Group.

Iwi Leader’s Group involvement in the 2004 Act repeal discussion began when Finlayson asked Solomon last August, to bring a representative grouping of iwi to meet with the government. (3)

The formulation of much of the government proposal emerged from discussions with the Iwi Leadership Group and the Maori Party. However, the Iwi Leadership Group later unanimously rejected the public domain proposal, after a meeting on Friday, June 4. Solomon said that if Maori were to forgo their rights to the foreshore and seabed, private land-owners, of 12,500 [freehold] titles, about 3000 of which are Maori-held, should be expected to do the same.

The iwi group knew that demand would have been unacceptable, allowing Key to appear tough and gain an apparent victory while opening the way for Maori ownership of the foreshore and seabed.

Harawira reinforced the charade by accusing Key of “pandering to rednecks”. Key further played the game when he asserted that it would be difficult for most iwi to prove exclusive use and occupation since 1840, which would be necessary to win customary title. A Maori legal expert echoed that view.

Under Monday’s agreement, according to a statement on the National Party web site, the 2004 Foreshore and Seabed Act will be repealed and replaced with new legislation, that will: Remove Crown ownership of the public foreshore and seabed, and replace it with a non-ownership model; ensure that the foreshore and seabed cannot be sold; protect public access, and existing navigation and fishing rights; restore the ability of iwi to test their customary rights to the foreshore and seabed through the courts; and exclude privately-owned land.

Finlayson has consistently said that that customary title was "an ownership title" - meaning that Maori groups awarded customary title in the foreshore and seabed will be the legal owners of it and the minerals beneath it.

“Under Labour's act, legal ownership of the foreshore and seabed was not possible under its equivalent of customary title, territorial customary rights”, he said. Public domain would provide "a staging post" in which some iwi or hapu would be able to investigate customary title, he said. (4)

The National Party’s foreshore and seabed policy in the 2008 election stated that a simple repeal of the Foreshore and Seabed Act was no longer a viable option. Since the Act was passed, Ngati Porou and Whanau a Apanui have in good faith negotiated agreements with the Crown. Other groups such as Te Rarawa have entered negotiations relating to the foreshore and seabed. Under these agreements, the Crown has made commitments and recognised certain rights – those agreements need to be honoured.

The new agreement extends that process and offers an ownership title to tribes that qualify.

The Iwi Leadership Group and the Maori Party understand that parliament has the power to remove the foreshore and seabed from Crown ownership, extinguish the treaty, disestablish the Maori seats, or dismantle the Waitangi Tribunal. The Maori Party is vulnerable on all those issues. If voters do not like the way successive governments enter into special deals with separate tribes, blame the politicians.

Key has said he is seeking an enduring solution to the foreshore and seabed wrangle. To do that, he needs to gain broad support, and could best achieve that by open government and genuine consultation. Instead, Finlayson appears to be trying to rush it through while hoping the wider population does not notice, and Key continuous the ignominious tradition of government by backroom deal.

The only possible reason Key and Finlayson are trying to slip the deal through is that they know very well that it is widely unpopular.

Sources
1. Foreshore and seabed consultation document released, 31 March, 2010. www.justice.govt.nz/policy-and-consultation/reviewing-the-foreshore-and-seabed-act-2004/
2 The man in the middle, Sunday Star-Times, 30/05/2010 http://www.stuff.co.nz/sunday-star-times/features/3752691/The-man-in-the-middle
3. Q&A
http://tvnz.co.nz/q-and-a-news/q-mark-solomon-interview-3580452
4. Foreshore agreement 'means ownership', New Zealand Herald, June 16, 2010. http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10652194