Posts Tagged ‘Foreshore and Seabed Act’

In the first few days of July I began writing a post about the report of the Foreshore and Seabed Review Panel. Due to absurd busi-ness* I never got it finished. Since the government has this week responded to the review panel’s findings, two months after it undertook to do so, by kicking the issue to touch, I figure now is as good a time as any to examine the issue again.

First, let me begin by clarifying my position on the issue and the government’s handling of it. I have been vocal in my support of the māori party’s willingness to work with National in government, and their willingness to accept a range of lesser policy concessions in service of the repeal of the Foreshore and Seabed Act — not so much on the basis that it (the repeal) will necessarily result in a greater quantum of economic or social benefit than those other concessions might have, but on the basis that the decision is for Māori to make. The māori party, (it is often repeated, mostly by disgruntled Labour supporters) does not represent all Māori, and this is true — but inasmuch as it has kaupapa Māori foundations, it has a stronger philosophical claim to representat those māori who share that kaupapa basis than any other party in parliament; and on this issue in particular, a stronger mandate than the Labour party.

Indigenism

The striking thing about the review, and perhaps the reason for the tardy and incomplete response from the government, is that it is grounded in indigenist principles. It’s not the only indigenist policy document the government has kicked to touch in recent months: the NZGB recommendation that the spelling of Wanganui be corrected to Whanganui is another such thing. Indigenism, here used, is not so much ethnic nationalism (as it is usually given to mean) as a non-eurocentric philosophical basis; one which does not presuppose a Pākehā worldview or rules of engagement — a necessary quality in that sort of political action, but not in itself a sufficient quality. Linda Tuhiwai Smith’s book Decolonising Methodologies provides a clear explication of the practice of indigenist and indigenising research in the Aotearoa-New Zealand context.

The indigenist position derives largely from the choice of panellists (two of whom are Māori scholars) and from the scope of the inquiry, which explicitly gave the panel a mandate to assess the extent to which the FSA “effectively recognises and provides for customary or aboriginal title and public interests” in the foreshore and seabed. This accepted the facts of NZ’s constitutional and legal history and jurisprudence from the Treaty of Waitangi, the Native Land Court and more recently the Māori Land Court, the Waitangi Tribunal, and the Court of Appeal in the Ngāti Apa case: that there are customary rights; they are not a legal fiction or a ‘simple nullity’ as Prendergast had it. These were facts which Labour, claiming to be the natural party of Māori representation, needed a court to tell them — and they reached for the nuclear option of legislation when the court did so. This change is important because it lays the tracks for future legislative and legal events: because the review was conducted from an indigenist basis, the resultant action must necessarily take on an indigenist hue. This was the complaint levelled by all of the usual suspects when the panel was named — as if the job of assessing a dispute over historical rights and legal process could shomehow be neutrally conducted by those whose institutions were responsible for its ongoing rancour.

More than ‘One Nation’

The indigenist perspective embedded in the review process and its frame has resulted in the forthright rejection of “all New Zealanders” rhetoric and the homogenisation which that discourse implies. Diversity exists; different groups have different rights in custom and culture and in law; that reality needs to be carefully managed, not ignored or subsumed by a system which says “we all have the rights I think we should have, and not those which you value”. This is the central foundation on whcih the report and its recommendations stands. In the words of the panel:

the very real problem that arises from the populist notion of “one people” under one law is quite simply that it does not recognise – indeed denies – the fact of the ethnic, cultural and social diversity of our population, which we would argue considerably enriches rather than divides our society. […] We are acutely aware that the notion of “one people” is, in the main, rejected by Māori. Māori say that we are simply two peoples comprising one nation. They see the notion of “one people” emboldened within a western paradigm that is constructed upon those premises and values which underpin the majority culture, the effect of which is to deny their existence. Māori collective property rights have rarely been treated in law in the same way as have non-Māori property rights.

Indeed they haven’t. And there are different conceptions of property rights issues in play here — rights of heredity and customary usage. Submitter Edward Ellison on behalf of Te Rūnanga o Otakau:

What we’re talking about is the mana or rangatiratanga rather than what we might term title or ownership as in the narrow European concept. It just doesn’t do it justice and it can be easily turned against us.

It’s the same issue which resulted in widespread alienation of land in the half-century following the Treaty’s signature: Western legal paradigms of ownership didn’t recognise collective landholdings, so they assumed that lands were the possessions of a given rangatira (or just someone who claimed to be rangatira) to dispose of. The panel, again:

More importantly, throughout this country’s history Māori advocacy and claims have not been made on the basis of ethnicity but of inherited rights – just as non-Māori have made claims and had them met on the basis of inherited rights. Indeed, property and customary rights are not argued on the basis that people are ethnically Māori, but because they have historically inherited rights to specific areas and resources – in the same way as a non-Māori landowner is able to pass down his or her land and associated resources to their children, and so forth.”

This illustrates a point of framing which has shot clear through the discourse around the issue: most discussion is about entitlement or claims under the Treaty of Waitangi, underlined by the fact that tangata whenua have had to go cap-in-hand to the Crown and its authorities. This isn’t a matter of claims or entitlements: it’s about securing rights to resource access and exploitation which never lapsed. The ‘troughing modies’ argument simply ignores the fact that parts of the coast owned by private concerns can and frequently are passed undisturbed down through successive generations of landowners. Just because the resources in question have been handed down collectively in accordance with tikanga, and just because the holders of rights to those resources refuse to accept a Western paradigm of property rights, the claim should be no less valid. This is not to say, however, that the matter is strictly one of property rights. Fundamentally it’s a matter of adherence to the Treaty, which guaranteed tangata whenua the right to their cultural practices (part of ‘tāonga katoa’ from Article 2) which permit them to consider the issue in ways not limited to a strict property-rights interpretation imposed from without.

The excerpts above demonstrate a strong critique of the ‘one nation’ rhetoric, and the falsity of that discourse, in which a culture which is dominant both in terms of numbers and of power draws artificial and appropriative distinctions between transfer of rights and property which are deemed legitimate and those which are deemed illegitimate. This is the discourse which gave rise to Iwi/Kiwi and to the Foreshore and Seabed Act; they are cut from the same cloth. It is the discourse, and the self-serving assimilationism it represents against which the critique is levelled; not against the Pākehā establishment except inasmuch as the two are indistinguishable. Those Pākehā taking umbrage at the critique should, therefore, examine their own role in and allegiance to that discourse and the system which bred it; those who reject it and what it stands for have no cause for alarm from the review process.

Divisions within

But what’s curious is that indigenism, and indigeneity, were central to the review, and to the issue and its future solutions, but ethnicity was not itself a determinant of position among submitters to the review. The panel found that

It was not possible to categorise the submissions by ethnicity in a reliable manner. While provision was made for submitters to specify their ethnicity, this option was not always used, or people elected more than one ethnicity. In any case, ethnicity is not necessarily determinative of viewpoint; some Māori submitters tended towards what might be termed a “Pākehā world view”.

The Foreshore and Seabed dispute is not just a dispute between Māori and Pākehā, as Don Brash and Michael Laws and Chris Trotter would have you believe: the divisions are as much within Pākehā society and Māori society as between them. A ‘clash of civilisations’ paradigm here obscures what’s really happening, it does not illuminate it.

I’ll look more closely at this point, and its cultural and constitutional ramifications, in a future post (when I get time). To be continued.

L

* The same busi-ness which has rendered my posts rare and largely prevented me from participating in the frequently-excellent discussions which have emerged in response to them. Please read my absence as an interested ‘points noted’, and please don’t let my scarceness dissuade you from continuing as you have been.

Hōiho trading

datePosted on 11:26, September 15th, 2009 by Lew

So much of Labour and the economic left’s criticism of the māori party and its conduct in government with National is little more than the howling of self-interested Pākehā angry that the natives aren’t comporting themselves in the approved fashion. But in this case, criticism of the māori party’s support for National’s amended ETS is entirely justified — not because it goes against the principles of the labour and environmentalist movements, but because it goes against the māori party’s own stated principles and demonstrated political strategy. Idiot/Savant has a thorough fisking of the differences.

Whereas previous criticisms have mostly been leveled at the māori party for trading away tactical gains against strategic gains (going into government with National; refusing to quit any time National capitalised on its majority; etc), this decision sacrifices the strategic for the tactical, swapping a few relatively token benefits to some industry sectors in which Māori have strong interests and to low-income people among whom Māori are strongly represented, against a huge intergenerational moral hazard by which the general populace will subsidise emitters, robbing the general tax fund of revenue which could otherwise have been channeled into targeted poverty relief and social services, of which Māori are among the most significant consumers. The upshot must surely be the Foreshore and Seabed; but this seems to me a very heavy price to pay for a concession which seemed likely to go ahead in any case.

While the māori party is not — and Māori are not — ‘environmentalists’ in the western conservation-for-conservation’s-own-sake sense, a core plank of their political and cultural identity is rooted in their own kind of environmentalism, and by acceding to an ETS which does not enforce carbon limitations on industry and society, they have put this role in jeopardy and severely weakened their brand and alliances.

There is a silver lining in this for Labour and the Greens, however. The māori party’s deal has prevented Labour from succumbing to a similarly tempting compromise on the ETS, and it can retain its relatively high moral ground. Labour and the Greens now have a clear path on which they can campaign for the 2011 and future elections, a definite identity around which to orient their policies, and the real possibility of significant strengthening of the ETS in the future. Where this leaves the māori party I’m not sure; no doubt those who shout ‘kupapa!’ will be keen to consign them to the annals of history, but I don’t think redemption is impossible — especially if the māori party shepherds the FSA review through to its desired conclusion, it will remain a political force too significant to be ignored.

L

Brogressives and fauxgressives

datePosted on 14:51, June 27th, 2009 by Lew

Chris Trotter doesn’t want to debate, which is good, because there’s really no point to it – his arguments and mine are at cross purposes because we differ on a key point: whether support for independent self-determination for power minorities is necessary to call oneself a ‘progressive’. Chris doesn’t think so. As far as he’s concerned, Māori self-determination is a nice idea, so long as it doesn’t try to take a different line to the honkey Marxist agenda which he misdefines as ‘progressivism’. If that were the case, then this “well-meaning but misguided political naïf” would need to turn in his cloth cap. But progressivism hasn’t ever just been about the white working classes dictating the political agenda to other power minorities; it’s never held that the needs of all power minorities be crushed by the worker solidarity agenda. That’s why my previous post was directed at the “Marxist left”, not at the progressive movement. I’m ok with not being part of that clique – comfortable, as Danyl Mclauchlan said, having no ideological flaws that a few decades digging canals in Fiordland wouldn’t set straight.

The progressive movement has been about power minorities supporting each others’ political agendas against those who would keep political power in the hands of patrician elites. Diversity is a political strategy. You should support peoples’ right to make their own political decisions, even if you disagree with those decisions, because if you don’t you could find support for the right to make your own political decisions to be somewhat lacking. So while Chris is playing the No True Scotsman game, I can play, too: if you don’t support the rights of indigenous people to determine their own political destiny, you’re not a progressive. More in the nature of a slogan: if you’re not a brogressive, you’re a fauxgressive.*

Until we can come to some sort of sense on this matter there’s no point in continuing the discussion. Chris, by his repeated denial and denigration of indigenous rights to political self-determination, criticising the independence of the Greens from Labour, and in denying that women ought to be free from sexual predation as of right, seems well on his way to becoming one of those conservative baby-boomers which are the subject of his latest column. For shame.

Edit: I withdraw and apologise for the redacted paragraph above, as a response to Chris’ justified complaints about my conduct here. This wasn’t up to the KP standard, and I’m sorry for that. I’ve replied to Chris in the comments of his thread on the hope of more meaningful engagement.


Meanwhile, Relic and Imperial Zeppelin have posted good responses to my last post on this matter, which are worth responding to and which I think neatly illustrate the problems I have with this sell-out / kupapa / brown tories / haters & wreckers line of argument.

Imperial Zeppelin, first:

Where do the Maori and Labour Parties come into the equation? Both these political entities may well claim to advocate on class and/or race issues, but do they?
[…]
It would appear reasonable to expand on Marty Mars’ statement and contend simply that race and class issues (along with all the others) will not be resolved as long as you leave the resolution to others; never mind others who are beholden to interests inimical to class, race, gender and environmental interests.

I both agree and disagree, but this gets to the nub of the matter: power minorities need to drive their own political agendas. My view is that while neither the Labour party nor the māori party perfectly represent their nominal constituencies, they are nevertheless best-placed to advocate for those constituencies. Nobody else can do it for them; the degree of their success or failure will or ought to be be reflected in their electoral support.

Relic:

how about a quote from V.I. Lenin to back up the bus a little-“politics are the concentrated expression of economics”

This is precisely what’s wrong with the Marxist approach. Going back to a higher authority than Lenin, I consider politics to be the ‘master science’ – the discipline which governs which other disciplines are considered worthwhile. Far from being just economics, it encompasses religion, morality, ethics, war, epistemology, identity, history, actual science and more to boot. Politics is how people organise themselves in society. There are many referents of political identity, and it is for each individual to choose their own primary identity. Marxists who say it’s only economics tend to be those who, ironically, care mostly about money and the power which it brings.

The Maori Party is led by the likes of Prof. Winiata and embodies the hierarchical inclinations of certain tribal elites.

And the Labour party doesn’t embody the hierarchical inclinations of academic and public servant elites? Let’s not pretend that any party in parliament is actually a workers’ party – in the democratic systems we have, credible political vehicles are by necessity elite-dominated. So all you’re saying is that you prefer elites of one flavour to those of another.

The capitalists via their primary parliamentary representatives National/ACT recognise the need to embrace the large and growing Maori economic sector, unlikely to be sold off overseas at this stage, and needing to be diverted from potential co-operative (socialistic) forms asap. Yes, there is the parliamentary numbers game but it is not the main prize as I see it. Getting Maori to embrace the colonisers kaupapa-private property relations, is.

This is a much better point, but (like other criticisms of the māori party, it rests on two false premises: first, that Māori don’t know what’s best for Māori; and second, that Labour are substantially better.

Second issue first. With the Foreshore and Seabed Act, Labour did more damage to Māori access to resources, mana whenua status, equality before the law and collective resource control than any government of any colour had done for the better part of a century. The passage of that act was the most recent shot fired in the war of colonialism, which told Māori that they were not entitled to due process and redress in law, as other citizens were; that they had no right to even try to assert mana whenua rights to historic resources no matter how strong their claim; and that hapū-level ownership was not an option. And all this from their historic allies, whom Māori had supported without fail for generations.

It’s not that Labour had no choice, as they and their apologists claim – they had the choice of losing and retaining their principles and the loyalty of Māori, or winning without either. They chose the former, before the gauntlet was properly thrown down at Orewa, and subjugated tino rangatiratanga to political expedience, forcing Māori to once again lie back and think of Ingarangi in service of the ‘greater good’ which served the Pākehā majority. That was Labour’s decision to make, but the expectation that there would be no consequences was simply absurd, and speaks to the level of entitlement Labour felt it had to Māori loyalty. The māori party, more than anything else, was founded to demonstrate that government needs to earn the support of Māori, rather than enjoy it as of right, use it, and abuse it as convenience dicatates. So far it is doing that, though whether it will do so in the long term remains to be seen.

Many objections to the māori party decision to side with National focus solely on the losses, ignoring the possibility of gains or arguing that National have no intention of fulfilling any of their undertakings. It is true that National’s policies will probably inflict more acute economic harm on Māori in the short term, but there’s more to intergenerational indigenous politics than small-scale tactical gains and losses in economics, and the calculus is that short-term losses may be worth it for long-term gains.

The integrity of the tino rangatiratanga movement is just such a strategic gain. The first big test of the māori party’s strategy comes this Tuesday, when the Foreshore and Seabed Act review panel reports its recommendations to Chris Finlayson. Further tests will come in the next year as National and Labour begin to bid in earnest for the brown vote, supposing Labour begins to campaign at all. Even if the māori party is turfed out off parliament in 2011, if they have raised the importance and profile of kaupapa Māori politics such that no party in the future believes they can act as Labour did in 2004, they will have succeeded.

As for the argument that Labour policies help Māori because most Māori are working class and Labour policies help working class people, therefore all Māori should. This is simply a reverse ‘rising tide lifts all boats’ argument. The point is that Māori have different needs and, under the Treaty framework, different entitlements to the rest of the working class. A political movement which treats Māori simply as brown proles ignores this historical reality, and is an insult to all those who have fought for recognition and redress.

On to the first issue. After generations of relying on Pākehā elites to redress the abuses of the land wars and following, a group of Māori leaders have taken it upon themselves to develop a principled strategy to find redress by their own means. Some Māori have supported them, and if they fail to make progress toward that redress, or do so by sacrificing other, more important things (such as the kaupapa of collective ownership) then the party will (or should) lose that support. This is fundamentally the point: the decision as to whether the calculus described above is worthwhile for Māori is for Māori to make, not for “well-meaning but misguided” honkeys who want to co-opt the politics of tino rangatiratanga as part of their worker solidarity movement.

Self-determination is a fundamental component of liberty. If you approve of political self-determination only for those movements which serve your own political ends, you’re little better than the Iranian clerics, for whom any political candidate is acceptable, as long as they’re a Shi’a fundamentalist. Let a thousand political agendas bloom; that is the liberal way.

L

* With thanks to Melissa McEwan, whose blog is well and truly open for business again.

Identity is more than class

datePosted on 17:49, June 24th, 2009 by Lew

Marty mars, commenting at The Standard, nails down the problem with Eddie’s and IrishBill’s latest bit of anti-māori party propaganda in one brief sentence:

You cannot fix any class issue until the race issue is sorted and that won’t be sorted while you are still working everything from the class angle.

Until the Marxist left realises that Māori have their own political identity and generally don’t (won’t and shouldn’t) identify en bloc with non-Māori political movements which require their Māori identity to be subsumed by a transnational class identity, it can’t reliably count on Māori support, and can’t really consider itself an inclusive movement.

Substitute ‘Māori’ for other political minorities if you like – the internationalist movement will only be successful when it learns to accommodate diversity and turn it to political advantage, rather than trying to squash it.

The Clark Labour government’s fundamental inability to realise this (by passing the Foreshore and Seabed Act, most notably) is why the māori party is trying other options. They and their people have had seventeen decades worth of out-of-touch honkeys telling them how to achieve the sort of political and economic progress they want, and at the same time largely denying them the resources with which to achieve such progress. Time for a new strategy, and creating a bidding war between the two main ideological blocs doesn’t look like a bad one, to me.

Hone is right, though – the party is going to have to get a lot more than they have if they want to retain their people’s loyalty and not be seen, come 2011, as the Brown Tories.

L

Symbolic bidding war?

datePosted on 10:47, May 8th, 2009 by Lew

I have long defended the māori party’s decision to enter government with National on two grounds;

  • The decision is theirs to make on behalf of those Māori who form their constituency, not the decision of well-meaning Pākehā, or Māori who vote for other parties. They made clear before the election that it might happen; there is no credible argument for bait-and-switch.
  • By emphasising that the relationship of Māori with Labour is at arm’s length, they send the signal that no party can afford to disregard Māori as Labour did with the Foreshore and Seabed Act. Furthermore, if they can make the relationship with National work (and admittedly that’s a pretty big if) then it puts the māori party in a strong strategic position to promote a bidding war for the Māori policy agenda come the 2011 election and beyond.

The Key government’s record on Māori policy so far has been patchy at best, with the decision to exclude mana whenua seats from Auckland governance, and a distinct lack of targeted recession relief for māori who are especially hard-hit by the recession, showing that there’s still a lot of work to do on that relationship.

So it was with some surprise and pleasure that I heard National Radio’s report this morning that Justice Minister Simon Power has announced that the refusal to sign the UN Declaration on the Rights of Indigenous Peoples will be reviewed, thereby possibly withdrawing us from the other axis of evil of four countries who refused to do so. That can of worms wouldn’t have been re-opened unless there was a very good chance indeed of movement on the issue, since National would severely endanger its relationship with the māori party by ratifying Labour’s decision. So, this looks to me like the first symbolic shot in the bidding war for Māori favour. Or perhaps the second – with the first being Mita Ririnui’s private member’s bill to entrench the Māori seats.

The common objection from ideologues who opposed the māori party’s decision to work with National is that symbolic things are meaningless – a view taken directly from the subaltern Māori Affairs Minister Parekura Horomia, who oversaw the Foreshore and Seabed debacle. In defence of the then-government’s decision to join that other axis of evil, he said:

I’m actually more than a little surprised the Mâori Party is prepared to back something which effectively offers indigenous peoples no more than aspirational statements.

The trouble is, unless preceded by banners bearing symbolic aspirational statements declaring a society’s position in principle, progress marches slowly. The Labour government recognised this in its grounds for refusing to sign the UNDRIP, viz, that it was possibly incompatible with our current laws. That’s the point best illustrated by another non-binding UN declaration, on Human Rights, whose most significant principle was that rights were not dependent upon local legislation but were declared to be universal, with the consequence that local legislation must change to meet the declaration where a conflict exists. By and large, local legislation in many signatory states has duly changed to meet the declaration, in spite of its non-binding nature. That is because its symbolic value is more than its practical value. (Amartya Sen is among those who makes this point, for example here). So it is with the UNDRIP – it presents an aspirational position toward which NZ may strive, along with practically everyone else.

Now, Power’s statement is carefully hedged with the words “as long as New Zealand’s current framework for indigenous rights cannot be compromised” – so actual policy change is still a long way off. But symbolic matters like this are a necessary condition for real progress, and the decision to review indicates that the government intends to take Māori issues seriously.

L

FSA review: strong panel, broad terms, quick

datePosted on 13:54, March 4th, 2009 by Lew

The government has appointed three very eminent and well-respected persons to the panel which will review the Foreshore and Seabed Act 2004, has granted them broad terms of reference, and has imposed a short deadline of 30 June by which they must report back to the Attorney-General. The press release, FAQ and linked ToR document is here.

This seems very positive. The three appointees – Justice Eddie Durie, Professor Richard Boast and Hana O’Regan – are highly-regarded, and none are enemies of tino rangatiratanga or friends of blanket expropriation. The terms of reference give this panel the authority to cover a wide scope of issues, including the prejudicial nature of the FSA (which scotched due process via the courts), to take new submissions, to hold hui and meetings on the matter, and to reconsider historical submissions to the FSA, and `other public documents’ which must surely include the report of UN Special Rapporteur on the Rights of Indigenous Peoples Dr Rodolfo Stavenhagen, which the Clark government dismissed with scorn.

I have two reservations: first, the short deadline, and second, the lack of commitment to following through on the recommendations of the panel. The short deadline is both a blessing and a curse – it will mean the issue doesn’t drag on, but this could be at the expense of full consultation. The second issue is more serious – there seems to be no indication that the government is under obligation to act on the recommendations, and that means we must take them on their word. The government response to the panel’s report will be a defining issue in NZ political history.

L

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