Posts Tagged ‘Foreshore and Seabed Act’
Thus spake John Ansell, who’s back with another cracking demonstration that he’s the nation’s pre-eminent racial fearmonger. He really is peerless in this regard.
Incidentally, you can read Scott Hamilton’s (and others’) thorough and systematic destruction of Ansell’s rather slippery and Victorian views on race, ethnicity, culture and religion (yes, Virginia, ‘Māori’ is a religion) in the comments thread of this post at the excellent Reading The Maps.
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.
The Foreshore and Seabed deal is not over yet, at least not as far as Hone Harawira is concerned. He has come out swinging (audio) against the government, saying the consultation process which resulted in the agreement was “bullshit”, that Key has shown poor faith and “pandered to rednecks” with a Foreshore and Seabed repeal proposal which is all take and no give:
The two things are guaranteed public access and inalienability; the one thing is Māori title. Furthermore, he’s reaffirmed a commitment to ongoing struggle for a more equitable resolution:
This is good, and in my view it’s the position the party ought to be taking. But paradoxically, he supports the party’s decision to accept the agreement, saying it’s “a step in the right direction”. This can only make sense if whatever legislation which replaces the FSA is non-enduring; essentially, another step along that road laid down by the Good Intentions Paving Company, rather than the full-and-final settlement which will carve the proposal in legislative stone.
But I think if they follow this path, it will be all over. I don’t think they have a hope of being able to play this as an ongoing struggle, having consented to it. As Bright Red said at The Standard yesterday, both major parties will see this issue as settled and will suffer terribly if they bring it back to the table. The only reason the FSA was even up for debate is that even National could see the manifest injustice of legislation being rammed through against the vehement opposition of the group most subject to it; while many among National derided the FSA as being too generous, nevertheless the process of its passage was repugnant to them.
Hone Harawira and many others no doubt think that this process was similarly repugnant, but that view has little legitimacy since the Iwi Leadership Group and the māori party have willingly agreed to it. This is how liberal society works; this is tino rangatiratanga in action: you make your decisions and you live with their consequences. The only hope now, it seems, is that the eventual bill drawn up from the Agreement in Principle signed yesterday will provide some pretext for the party and the ILG to withdraw its support. This will come at an enormous cost in terms of goodwill, but I have no doubt that despite his protestations to the contrary, Hone Harawira is getting to work on setting the stage for such action already.
So the māori 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:
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 Māori title-holders whose potential rights have been largely circumscribed while the possessions of existing, mostly Pākehā, 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 Māori 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 Māori 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; Māori 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 māori 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 Māori; but regardless of that the māori 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 māori 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:
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 Ngāti 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 māori party. And nor should they.
John Key’s government is starting to play for keeps after a year and a bit warming up. There have been a few clear examples of this, including the aggressive tax and service cuts in Budget 2010, and signs pointing to privatisation in the not-too-distant future. Less orthodox is the recent hardening of the government’s position on take Māori.
Key was not punished for his calculated snub of Tūhoe, and it seems the success has emboldened him to flip the bird to an even larger Māori audience, saying two things: that Māori can take or leave the government’s public domain proposal for the Foreshore and Seabed; and that by “Māori” he means “the māori party”. It’s these things I want to discuss, and they need a bit of unpacking.
Pragmatism and principle
“One law for all”
There is another, economic, point in play: if land not presently in private ownership is placed in the public domain and declared inalienable, the increased value of those few freehold, fee-simple property rights which do exist at present will have a phenomenal distortive effect on the property market and on New Zealand’s social structure, with the inevitable result that almost every scrap of it will end up in foreign ownership. We will then have the perverse and incoherent result that most of the beaches will be owned in common — but those which aren’t will be the exclusive domains of ultra-wealthy foreigners. Whether this is a good or a bad thing is a fair point for debate, but I think this fact will grant Solomon’s proposal considerable appeal to the broader New Zealand public, especially among those who do not — and even at present prices, could never — own waterfront property.
Just who are these “Māori”, anyway?
If the government holds to its ultimatum, the māori party must turn around and walk back into the light. On this I agree with Rawiri Taonui (audio). The party will lose much more by abandoning its people and agreeing to a Faustian bargain than by simply failing to negotiate the repeal of the Foreshore and Seabed Act, which realistically was a nearly impossible task in any case. And even if the party did support the bill, it would not mean the end of the struggle. As Taonui says, although they might have the numbers to pass the legislation, the government’s solution will have no legitimacy or durability in practice without the support of the ILG and those it represents. Where there is injustice, resistance will seep out around the edges. If the issue of the takutai moana remains live, the party can continue to advocate for a just and enduring solution, and the ILG’s proposed solution opens a potential route for re-engagement with the Labour party. All is not lost.
The big question — as I asked in r0b’s excellent thread the other day is: what will Labour do?
The whole world’s watching. I have to say Shane Jones, who the party desperately needs if it is to have credibility on this issue, hasn’t helped dispel the predominant impression of Māori politicians held by the New Zealand public.
The latest proposal for the foreshore and seabed is PC gone mad — put it in the public domain, but not really the public domain per se, and everyone’s happy. Or not unhappy. Hopefully. And if they are, they’re just being unreasonable.
It’s blending half the kittens in order to avoid tackling the complex and painful political and historical problem which the issue represents. It’s the cop-out option which aims to offend nobody, but really only achieves that goal on the surface. It’s like a butchered mihi delivered by someone who’s not really well-meaning but wants to appear so, ignorant of the fact that wairua matters.
This has Peter Dunne’s fingerprints all over it, and he’s the one tying himself in verbal and conceptual knots: “no one owns it but we all own it and so therefore we all have an interest in it”. The unnamed sources are no better, arguing that since there are no rights, “everyone’s rights are protected.” You couldn’t make this up.
The trouble is that Māori — and the māori party in particular — don’t just want everyone to get along; they want their historical claims to the takutai moana tested and upheld, or negotiated to mutual satisfaction. This will necessarily include some positive determination as to the ownership status of those stretches of land and sea, from which will derive other rights — to development, to exercise kaitiakitanga, and so on — which can and should be negotiated on the merits of the original determination. This proposal commits a similar legal fallacy to the Foreshore and Seabed Act, in reversing the legal test as to customary title. Prior to the FSA all land was presumed to be in customary ownership unless alienation could be proven — the FSA reversed this, forcing claimants to prove that their rights to the foreshore and seabed had not been alienated. To be satisfactory to Māori, any resolution must address this change, and either provide recourse to that pre-existing legal framework, or a negotiated framework which satisfies all parties. Māori don’t want a Clayton’s solution in which they gain nothing except by losing slightly less than the Foreshore and Seabed Act took away, while things literally do not change for Pākehā.
Let me be clear, though: I don’t so much mind the function of the proposal as its justification. I prefer Hone Harawira’s proposal — full customary title, inalienable, with guaranteed access for all New Zealanders in perpetuity — but recognise that this is probably too ambitious in reality. A solution which mimics public domain in function while resolving the question of customary title could work. But this isn’t such a proposal. There is no short-cut, no easy way out of this. It’s time for both major parties to stop avoiding this fact, and face up to the responsibilities — and the opportunities — these historical times present.
Update: Yikes, even Marty G sort-of agrees with me!
Posted on 23:47, February 6th, 2010 by Lew
In January and February 2008 my wife and I did a road trip the length of the country, twice — from Wellington to Bluff, back to Wellington, up to Cape Reinga, and back to Wellington again. For most of the trip, we flew a small Tino Rangatiratanga flag, one of those small ones which clip onto a car window. It was partly a matter of literally “flying the flag” of my political views at this time of year — I must note, with some misgivings on her part — and partly an experiment to see what response it would get.
Most obviously, traffic seemed to treat us somewhat differently, though this might be down to regional and seasonal driving variations. Some cars honked, some flashed their lights or waved; others rode closer behind or seemed to overtake more aggressively. Many times I saw drivers staring or otherwise reacting with surprise at seeing a couple of Pākehā in a white station wagon flying such a flag. Truck drivers were particularly well-represented in all these reactions; the road is their territory, and visual vehicular statements of identity or loyalty mean a lot to them.
This was especially true when driving around Otago and Southland with my ZZ Top-bearded and bemulleted uncle in the car. Mostly in the South, though, people were cool but not hostile, and too polite to mention anything they might have thought. The response, both positive and negative, was strongest in the central North Island, Northland and the Bay of Plenty. In Taumarunui we got into town late and a group of local Māori were drinking and singing karaoke at the hotel where we stopped. They were intrigued and after a few friendly waves and “kia ora bro”s a couple of kuia came over to suss us out — asking us who we were, where we were from, and so on. Learning that we were from Whanganui, and that I have family connections to Jerusalem put it in context and they treated us with easy amiability. Their only mention of the flag was to remark that it was probably a pretty good guard against theft; said with warmth and irony and humour. There were several of these sort of encounters. Later, stopping for side-of-the-road hāngi on the road between Wellsford and Whangarei, the young guy gave us $2 off and claimed it was because it was the last, though I could see there was plenty left and it was only just lunch time. Especially in the Far North, and through the Bay of Plenty from Te Puke through Whakatane down to about Rotorua, Māori pedestrians and kids playing near the street would shout and point and wave. Usually, this was in run-down areas, and the people waving and shouting “chur bro!” often wore gang colours.
The “anti-theft device” line was replayed unbidden in Tauranga while visiting some in-laws, though this time in all seriousness, with none of the warmth of the Māori in Taumarunui. This was combined with a rather heated debate as to the relative merits of the Clark government, Foreshore and Seabed Act and general state of the bicultural nation. The two events were on consecutive days, and the contrast could not have been more stark.
In a couple of cases — once in Lyttelton in the carpark of the Wunderbar, and again outside a petrol station in Whitianga — we were asked by random strangers if we were Māori, and if not, why were we flying the flag. In Lyttelton this was good-natured and curious; in the other case, the question was asked with gruff suspicion, and the answer — an explanation of what the flag means and its origin — didn’t cut any ice with the chap who looked and seemed rather like Garth George. I’ve encountered that sort of reaction before — once a guy called me a “race traitor” in Molly Malone’s because I was wearing a Tino Rangatiratanga hoodie — and that one didn’t even have the flag, just the words.
But on a trip of 7,500km on the busiest roads in the country, passing through all the main population centres at the time of our national holiday, in an election year, not long after the Urewera Terra arrests and with issues of racial separatism and colonialism very squarely on the agenda, the thing which was most obvious was how little such a statement changed anything. It reiterated to me that New Zealand is a pretty tolerant and easy society, as long as that tolerance is not stretched too far. Another example of this was this evening’s “Great Debate” on Māori TV between celebrities and comedians and such folks on the moot “now is the time for Aotearoa to close the immigration gates”. I won’t spoil the result, because it really is worth watching (and I assume Māori TV will put up a video), but while the moot was robustly (and often very personally) contested, it was all done in wonderful good humour. The same good humour as of a Māori joking ruefully about Māori crime — and the opposing siege mentality the following day. Happily, I think the former predominates in this country, and provides a sound basis for the ongoing development of a bicultural — and eventually multicultural — society.
It’s a sound speech full of bread-and-butter Labour appeals, not too heavy on the wonkish details, and it doesn’t spare anyone who oughtn’t be spared, targeting a range of elites: Finance company sharks, big business shysters, benefit fraudsters, nearsighted property developers, the honours list, public sector CEOs. Also obligatory references to education, justice and community systems failing young people, which ties into a small serve for the māori party (not named) about the Foreshore and Seabed Act and Tino Rangatiratanga flag, although wisely appealing to Kelvin Davis’ mana rather than Phil’s own, which shows that while he still doesn’t really get tino rangatiratanga, he at least realises that it’s a topic to be treated carefully. Also the absence of a direct attack on the māori party or its principals themselves is a good sign for future reconciliation; an indication that Sharples’ hints of recent weeks that the two parties retain much in common have been understood.
It speaks to the continuing narrative that the government is coasting on a gradually improving economy which has turned out to be much less dire than predicted — a good choice given the same chord has been struck by people like Matthew Hooton in the past week, and playing into Key’s “relaxed” persona. This narrative will stick.
It’s a solid speech, but not a great one. I didn’t hear it, perhaps you had to be there, but this is largely pedestrian stuff, and while “the many, not the few” is an excellent platform for any social democratic leader, this needed to be a speech which burned bright, not one which smouldered. The biggest reason it didn’t, for me, was because it wasn’t clear about who its audience was.
The collective noun of choice, something over which important battles have been fought in recent years, was generally “all new Zealanders”; sometimes “(hard)working New Zealanders” or “working families”. I’ve argued before that the first (“all New Zealanders”) is too broad except as a rhetorical device, and this was an opportunity for Labour to drive home it’s “the many, not the few” focus by telling us who it stands for, to clearly frame of who “we” are to Labour, and to oppose it to who is meant by National’s “we”. You can’t win 100% of the electorate, and you shouldn’t try: if your position isn’t pissing a fair chunk of the polity off (your ideological enemies) then it’s probably not doing much for your friends, either. Mealy-mouthedness is the bane of effective political engagement.
If Labour represents “all New Zealanders” then, by definition, it represents the few as well as the many, and you can’t base a political appeal on that. You can’t represent both the interests of the minimum-wage workers and the stuggling middle classes and the disenfranchised urban poor and the sharks and speculators and fat cats you claim are leeching off them: you need to distinguish one from the other and say: “we work for you, not for those guys”.
This is implicit through the speech, but it must be explicit, and must be repeated over and over, forged as a bond of identity with a Labour party from whom the electorate feels disconnected. All the good policy initiatives in the world won’t save Labour unless it reconnects and re-engages its base, and it can’t do that until it sorts out who its base is, and lets them know. This speech could have done that, but it didn’t.
In the Insensitivity and hypersensitivity paper I referred to previously, Raymond Nairn and Timothy McCreanor studied submissions to the Human Rights Commission in response to the Haka Party Incident in which He Taua, including one Hone Harawira, broke up an offensive Auckland University engineering school mock-haka (this is poorly documented on the internets, but see here). They found that Pākehā responded by conceding that while the students may have been insensitive, He Taua were hypersensitive. This was and remains the default mode of rationalising race relations incidents in NZ: no matter whether it’s having their haka mocked or their Foreshore and Seabed nationalised, those Māoris are always complaining about something.
The insensitive-hypersensitive contrasting pair is a victim-blaming technique: the assertion that while we may have been insensitive, they are hypersensitive. This is presented as a concession but is in fact an attack which minimises the ‘insensitive’ party’s wrongdoing and magnifies the other party’s ‘hypersensitivity’ as a character flaw:
… and it’s ‘Warrior Gene’ all over again. Moreover, the common lexical root of the terms produces a false equivalence which amplifies this imbalance:
The sweet irony of this device is that, where there is a genuine imbalance of offence perpetrated by one group against another, it requires the offending group to be both insensitive to their own actions, and hypersensitive to the response of the group against whom the major offence was given. So it is with Hone Harawira’s deeply foolish, divisive and unhelpful comments of late: Pākehā New Zealand took hypersensitive umbrage at the terminology while insensitively ignoring the much greater offence caused by the repeated injustices visited upon Māori. I do not defend Harawira; the purpose is only to illustrate that this remains very much the standard means of reasoning around such incidents.
And so it is with Phil Goff, who played the insensitive/hypersensitive Pākehā role to the hilt in his response to Harawira, and has compounded that ill-considered reactionary stance by extending the narrative to the Foreshore and Seabed and the māori party’s decision to coalesce with National. This implies that Labour still thinks that Māori were unreasonable to object to the mass nationalisation of resources to which they had a legitimate claim in law, and that by cutting loose and forming another party they had somehow given greater offence to Labour than the original nationalisation had justified.
The message from Goff’s Labour party is loud and clear: we make no apologies for the decisions taken while being chased by the Brash Iwi/Kiwi monster, and are now prepared to do it all again if need be. This is a damned shame for the country, and for the party. Labour had a great opportunity to mend its bridges with Māori, as the māori party is burdened with an appalling ETS and its more and more fraught partnership with National — and instead of doing so they set another charge and detonated it. The Māori electorate will not support a Labour party which has declared itself the party of blue-collar Pākehā rednecks who are sick of ‘those Māoris’ and their complaining about things which happened the century before last. Where will they go? What will Labour do without them?
Perhaps this speech is an attempt by Phil Goff to reclaim the term and concept of “Nationhood” from the clutches of rampant colonialism. If so, it is an abject failure. It compounds Labour’s cynical appeasement of National’s race-war stance in 2003 with a reactionary, resentful re-assertion of the same principles before which Labour cowered in 2004. It is the very epitome of what Raymond Nairn and Timothy McCreanor called “insensitivity and hypersensitivity“. More on this here
I had an incandescent rant underway, but I’ve said it all before. If you refer to the tag archive under the terms “Chris Trotter” and “Michael Laws” you can read most of it — which should give you an idea of the company Goff’s speech deserves to keep. And in the mean time, Idiot/Savant has summed up my thoughts in several thousand fewer words than I would have. I can do no better than to quote him (and please excuse the transitory obscenity in this instance):
I’m trying very hard to find an image of that “white is the new black” All Whites poster/shirt with which to adorn this post — because that’s what Goff is driving at here: what you thought was colonial paternalism wasn’t, and what you thought was self-determination isn’t. It’s a disgrace.