Response to Phil Sage on the FSA

datePosted on 23:21, June 15th, 2010 by Lew

Phil at No Minister has written a long and pretty useful post on the background and consequences of the FSA and its coming repeal, titled Customary rights, free access and the beginning of the end for Socialism in New Zealand?

I have a couple of things to quibble about, and since I dare say there’s not a huge crossover between the readership of KP and No Minister, I’ve reproduced my comment below.

Customary title or rights are to be determined based on contiguous and continuous use or occupation. As I understand (not being a lawyer), this is to say that in terms of testing these claims, occupation of the bits of dryland abutting a disputed section of foreshore and seabed counts (presuming also that the foreshore and seabed were themselves used as part of that occupation).

The discussion about common-law rights, Cicero, Grotius and all them is interesting, and relevant as background, but since the necessary rights and methods to see this legislation through can be constructed more or less by government fiat (as they were with the FSA) I don’t think it’s directly relevant to the case. Which is to say, the solution is likely not going to rest all that much on the specifics of common law, though it might appeal to its principles.

Second, and this is really just a matter of balance, but since Phil emphasises it as being a bit of a big deal I’ll bring it up — Phil claims the following:

The Maori party chose to accept a deal that allows them to go to court to enforce their tribal rights to property rather than choosing to negotiate with the state to grant them those rights. For the last 80 odd years Maori have negotiated with the state directly for redress and the handouts following from the belief that the state would or should provide. The agreement by the Maori party and representatives of the wider Maori community in the form of the Iwi Leaders Group represents a return to the belief in the primacy of common law rights and a turn away from the primacy of the socialist state. This bodes extremely well for the future of market democracy in New Zealand.

This just simply isn’t so. While the proposal allows iwi recourse to the courts if they choose to exercise it, the preferred position (stated clearly as such by all parties) is for direct negotiations between claimants and the Crown, precisely as occurs presently in Treaty. Since the legal route will almost certainly be more expensive, slower, less effective and generate more public bad-will towards both parties, I expect few people would take it, all else being equal (but see below). Moreover, some recourse to the courts was also present in the FSA (though horribly neutered and even less appealing than in this proposal). So the assertion that it represents a privileging of the common law over “socialism” (for the record, I dispute that this even slightly resembles socialism, but we’ll save that for another day) doesn’t hold up to any scrutiny based on the facts as they stand now.

But it is interesting, because the presence of stronger legal mechanisms to effect settlements in this proposal (than in the FSA) may mean that some iwi choose this route in practice. More interestingly, one or more may choose to avail themselves of the legal route as a strategy. The ILG isn’t altogether happy with the proposal, but they must realise that once this deal is signed, there will be no further legislative negotiation. But they may try to exploit the cumbersome and bureaucratic nature of the legal system to their advantage. I speculated about this in comments to my post yesterday:

It does seem likely than any residual resentment regarding the FSA, and dissatisfaction with this agreement, will be played out via the Treaty settlements process. Since the Crown’s strong preference is for negotiated claims of rights and title (with the courts as a fallback position) it seems likely that this will begin to look like Treaty settlements all over again. I think the already hopelessly optimistic 2014 deadline for claims to be settled will be further extended by this. All it will take is for negotiations to break down with one runanga and it’s a long test-case while other negotiators drag their feet and hold their breath looking for the precedent. And it’s Te Urewera all over again.
Come to think of it, perhaps that was the ILG’s strategy.

Now, I have nothing to base this on, but I wouldn’t put it past those wily old heads, and — in a situation where the government feels empowered to negotiate by ultimatum — I reckon it’d be a legitimate strategy.

Right — now to watch the football. Cheers!

L

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