Thursday, December 18, 2003

Labour's Big Stick in the Sand

Labour’s new seabed and foreshore policy is a fine example of using a rather blunt tool for a very delicate job. While there are many positive elements in the package, the government has resorted to moving unilaterally when it comes to the definition of what Maori rights to the seabed and foreshore might mean. The “proposal” on offer in some respects resembles a very big, clumsy stick, when maybe what we all need right now is a table and two chairs. Oh, and that spirit of partnership that everyone talks about.

I really can't see how Maori could accept this latest government proposal. And as far as I am concerned, anyone in the pakeha community who is serious about fair treatment under the law should make it clear to government that this proposal represents an unilateral dimunition of Maori rights.

The plan government has hatched is controversial enough that Labour may not be able to muster enough votes to get the necessary legislation through Parliament. And considering the relative strength of Labour in the polls to date, it makes you wonder why Clark would risk the ignomy of having to withdraw a very, very important government initiative. Unless government is prepared to move some considerable distance, there is no way that this proposal is going to make it through the house. Either that, or Labour feels that it can ram this through despite the opposition of Maoridom. That could be a big mistake.

Some clues to Labour’s heavy-handedness were revealed by Michael Cullen’s interview this morning on Nine to Noon. Cullen underlined the substance of the government’s approach when he said that the decision of the Court of Appeal in the Marlborough Sound case did not recognise in any way the concept of Maori sovereignty. Now, while this is true, it is also true that the case put before the Court of Appeal was not about sovereignty. It was about customary property.

By subtly defining the debate over the seabed and foreshores as a struggle over sovereignty, government is allowing itself to use a very heavy hand to deal with an issue that should really be treated with a bit more delicacy. The judgement of the Court of Appeal found that under common law and subsequent legislation, Maori customary title remains to be disposed of and may or may not give rise to rights in such areas as seabeds and foreshores. As a result, the question of customary rights to the seabed and foreshore is a matter for the Maori Land Court to decide. But the proposal actually predetermines the scope of the rights to be decided upon by the Maori Land Court.

In effect the government “proposal” unilaterally defines what those rights to customary property are. I don't think that is a respectful way of dealing with a treaty partner. There are some pretty narrow definitions in the government proposal. For example, the continuity provision makes it clear that any Maori claims must be for activities that are practised continously until the present time. But that means that Maori groups that have been excluded from customary activities for whatever reason are out of luck.

While I applaud the decision to put seabeds and foreshores in the public domain, the unilateral nature of the government’s response is a little frightening. If the legal basis of New Zealand really is founded upon a partnership between Maori and Pakeha, the question of customary property and rights should be arrived at through a process of negotiation. And by the same token, Maori participation in regulatory processes should move toward a model of effective co-management rather than in the nebulous “veto” that is being offered.