So the mÄori party has accepted the government’s Foreshore and Seabed Act repeal proposal.
As I posted the other day, the Iwi Leadership Group, chaired by Mark Solomon, was dead-set against the proposal, with Solomon speaking in very strong terms against it. But now, while residual concerns remain, the ILG has now issued an admittedly grudging and vague endorsement. But there is a lot of daylight between Solomon’s words previously and the content of this acceptance. So my question is: what’s changed? While writing this, I was pleased to hear that Brent Edwards and Barry Soper asked the same thing during the PM’s presser. According to Turia, what changed is that:
In terms of customary title and customary rights, we have been given an assurance that those rights will be as sacrosanct as any other rights to title.
That’s very squishy. The problem hasn’t really been the veracity of the rights in question; it’s been the barriers to their acquisition and the limitations on their extent. Neither of those problems have been addressed. The matter of ownership isn’t trivial, and in particular the glaring difference between nascent MÄori title-holders whose potential rights have been largely circumscribed while the possessions of existing, mostly PÄkehÄ, title-holders are retained, was of particular concern to Mark Solomon — has not been addressed. More than that, the requirement that claimants not be disadvantaged in their claims by a prior Treaty breach is nowhere to be seen. This is particularly crucial, since it distinguishes to an extent between legitimate and illegitimate alienation. Under such a proposal (as I understand it, and in general) a claimant would be able to claim rights to privately-owned raupatu land and resources, whereas under the present scheme any land in private ownership — no matter whether it was originally confiscated at gunpoint — cannot be subject to a claim. That’s a big deal.
There are some positives in this scheme. As I’ve said, I dislike the “public domain” aspect of it; but I think the recognition of two distinct levels of customary title is good (particularly when set against the FSA’s draconian all-or-nothing approach in which all would get nothing). I generally approve of the mechanisms by which those claims can be tested. But it’s my view that this proposal grants little to MÄori that they didn’t already have under the FSA, and although the barriers to test a claim are lower, and the mechanisms are more robust, and there’s generally better faith between the crown and MÄori now than there was in 2004, it’s fundamentally the same sort of beast: iwi petition the Crown for rights that, according to the common law of the land, were never extinguished and ought never have been abridged; MÄori debased as supplicants, begging the very agent of the crimes perpetrated against them for recompense.
Anyway, my initial position of criticism in the former post was that the mÄori party would be acting against their mandate if they accepted the government’s offer, it having first been unanimously rejected by the ILF. But the ILF having turned on a dime leaves me in two minds: I don’t like this proposal and I don’t think it has sufficient merit to be acceptable to MÄori; but regardless of that the mÄori party is fulfilling its mandate by accepting it, acting in accordance with the guidance given it by the Iwi Leadership Forum as representatives of the iwi groups with claims to test. What puzzles me is not why the mÄori party have agreed to it — although the blame will no doubt be laid at their feet more than anyone else’s, and I agree that they ought to have done better — but why the ILF changed so rapidly and so completely. I’m left feeling much like I did when Michael Laws claimed victory about the h when the result of the government’s decision would be to establish Whanganui as a new orthodoxy, and relegate those wanting to use Wanganui to quirky outsider status:
Who knew that all Michael Laws wanted for his cause was an emasculating partial endorsement and a prolonged death sentence? He could have saved everyone (and his own reputation) a great deal of trouble by making this plain at the beginning.
There are a few possible explanations. One is that Solomon’s position as articulated on the Sunday politics shows and later on NatRad was not truly representative of the ILG’s position, and he has since been hauled back into step. DPF favours this line of argument and reproduces a NgÄti Porou press release in evidence. Another is that Solomon’s remarks were an aggressive negotiating position. But he’s not usually the sort to play brinksmanship games, and this government, with its solid parliamentary majority and two-winged coalition structure, is a poor choice of target for such a strategy. Another possibility is that something really did change, and they’ve received more than just assurances. A fourth, and no doubt very popular possibility is that Turia, Sharples, Solomon, Mahuika and all the other Hori Tory tribal elites have been bought off with baubles of office, beads, blankets and limousines.
I guess we’ll see when the final bill is drafted and introduced. And, of course, the response from the flaxroots will be important, because if they feel like they’ve been sold down the river, no amount of baubles will keep them from abandoning the mÄori party. And nor should they.
L
Solomon’s very aggressive negotiating position, not endorsed by ILG leadership, was quickly and agressively rebutted by Key. If repeal and the right to go to court is not acceptable the FSA stays. Like many I felt Solomon was well out of step with both his remit and natural justice.
What changed is the recognition that Solomon’s position was the next step and that was a step too far. So the more sensible ILG leaders had implicit ratification they had achieved as much as they were going to and what they had achieved was in accordance with their original aims.
Phil, do you have a source, or are you reading tea-leaves? Part of this rings true for me, but I’m only reading tea-leaves as well. Part doesn’t, though — such as why the ILG would be against leaving the FSA in place and pursuing repeal and a better option with a future government. As I’ve argued, Solomon’s proposal has Labour written all over it.
L
Me??? source??? Don’t be silly ;^)
Key did state in the media that FSA stayed if the proposal was not acceptable. Otherwise a sensible reading of tea leaves. There was not time for any kind of formal negotiation, but I could see that National would have affirmed key principles of repeal and access to court.
Frankly I don’t understand why Labour would back the Solomon proposal having been responsible for FSA in the first place. That proposal seems to involve granting legal title to Maori in priority to New Zealand common law rights of access. Far in excess of any remit or natural justice.
The murmurings about right to develop are of concern. I have no problem with the common law or customary rights that exist for access, tapu or taking seafood. But as a New Zealander that has always been balanced against my free right of access. Development would potentially boost the rights of one at the cost of another.
Sure the right of legal redress was the main objective and the salient point here is the “area” between customary rights and customary title – the government has prevented the extent to which the latter can become a form of land ownership title by maintaining public access. And also protected the rights of existing private land while doing this.
The government has thus successfully limited the claim of the public good to existing private land, while appearing to provide equivalent legal rights to Maori iwi. Iwi have to prove customary title to exercise it, so the idea of simply being granted a settlement in negotiation with the Crown, as some iwi did with Cullen, is not an option – this limits Crown involvement in the awarding of any customary title (de-politicises outcomes).
One wonders to what extent iwi Treaty settlement issues, which have been on the back-burner of late, will become an issue. The claim of a connection between concluding the settlement process and review of the continuance of the Maori seats is also likely to be re-stated for the consumption of voters in 2011 – so National is still seen as the champion of Pakeha New Zealand against liberals and their appeasement of Maori Aotearoa.
PS What’s in a name – Whanganui or Wanganui, public space or public domain … brand symbolism?
Phil, Solomon’s proposal doesn’t grant legal title to MÄori over PÄkehÄ common law rights; it ensures that all of the FSA is treated the same, and effectively that MÄori claimants do not suffer as a consequence of being denied access to those same common law rights, while preventing existing rightsholders profiting from Treaty breaches.
SPC,
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.
As for the question about Whanganui — it’s not really comparable (or I don’t get what you’re asking). It’s a simple matter of competing usage, resolvable (and now resolved) by recourse to historical facts and norms of cultural possession.
L
I think the most positive aspect for all concerned is that is a negotiated settlement. The MP don’t get all the wanted but then that’s what happens under MMP. But it takes some of the heat out of the issue.
And they’ve said it isn’t the end of the story which leaves them with a negotiating position going into the next election. And once this deal has settled down and the general public see that it hasn’t been the end of the world, no one is getting kicked off beaches then there may very well be scope for further movement.
The MP will have a very good platform for the next election.
I agree that negotiated, political settlements are preferable to court settlements for reasons that I’ve described elsewhere: essentially, they’re havily moderated and if done right will tend to be more durable than settlements made by a court which can be criticised as activist, etc. But I disagree that there’s a hope of further change if they accept this proposal. Labour won’t touch it with a barge pole — it’ll just be relitigating an issue the NZ electorate wants well rid of, and after all, they passed the FSA and still don’t see anything wrong with it.
Whether the mÄori party has a good platform or not will depend on the extent to which their position — and that of the ILG — matches the views of the people at the flaxroots. If it does, good on them. But I don’t think it does.
L
Both the Maori Party and the ILG would appear to have opted for a bird in the hand, Lew. It’s a reasonable position, I suppose, given the likely political consequences of their walking away from National.
They, and especially the ILG lawyers, will now use the time required for the legislation to be drafted and introduced to secure the maximum possible in behind-the-scenes negotiations and lobbying. They have some heavy-hitters in this regard and we may be surprised at the results.
From the Pakeha side, the really interesting thing to watch for will be the rise (or failure to rise) of some sort of pressure group to contest the repeal legislation.
If such a group emerges it will be an important test of how far NZ has come since 2004. If it fails to attract mass support then the Government will breathe a huge sigh of relief, pass the legislation, and move on.
If, however, it turns out that the sleeping dogs kicked awake at Orewa have lost none of their bite, Key will face some very hard decisions. Will he dismiss a Pakeha “hikoi” as the work of “haters and wreckers” and refuse to meet its organisers?
We shall see.
Lew, my point on public domain and public space was in reference to Labour’s original preference to have the 2004 Act specify the F and S as public domain (until NZF imposed Crown status). As to why the term public space is used as to being free of such associations …
As to the Crown preference for negotiation of customary title, one wonders how well that will go in practice if there is court alternative for one party – one case of an iwi going that way will set precedence impacting on all subsequent iwi negotiations. I bet they are glad the tuhoe don’t have a F and S claim to make.
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