National’s rock and hard place

Written By: - Date published: 11:31 am, April 12th, 2010 - 23 comments
Categories: business, capitalism, foreshore and seabed, maori party, Mining, national - Tags:

National’s proposed reform of the foreshore and seabed legislation is no ‘elegant solution’. Instead, it is being criticised in the business press as an undemocratic favouring of Maori business interests over Pakeha ones, while iwi are saying that it doesn’t give them what they want.

I’m not endorsing either standpoint because I think the business and corporate iwi elites are pretty much as bad as each other – rent-seeking capitalists all – but I think it’s important we look at where the sides stand and why National is in danger of falling behind two stools as it seeks to do enough to win Maori Party support while not pissing off business too much (and why it’s just silly to think National can magic up an ‘elegant solution’ that eluded everyone else).

The business perspective was articulated in last week’s NBR under the headline Business beware Maori sovereignty landing on a beach near you (needs subscription):

…To suit its own electoral purposes in 2011, National in its present guise as the Crown is prepared to sell down the river New Zealand’s businesses and citizens who are not its Treaty partners…

…Business submitters on the RFSA should be aware of the Trojan horse represented by non-territorial customary rights as rent-seeking and veto-wielding rorts, but the greatest potential evil rests with territorial customary rights…

Coastal Maori tribes would be empowered as unelected bodies to write their own self-interested planning documents (as they would also for non-territorial customary rights) that would be compulsorily included in elected local authority regional policy and planning.

Bound by these Maori plans would be not only local authorities but also the New Zealand Historic Places Trust, the Department of Conservation, and the Ministry of Fisheries.

Included would be a right to permit activities the veto-wielding power that underpins legalized extortion in rent-seeking without legal recourse to challenge denial of permission.

Local authorities, the Minister of Conservation, the Director-General of Conservation, and requests for foreshore and seabed use or development consents by business interests could be vetoed or simply consigned to limbo by coastal Maori with customary title without any legal redress proposed in the RFSA.

Indeed, coastal Maori tribes endowed with customary title will be allowed to make things up as they go along:

‘When giving, or refusing to give, consent there would be no obligation on the coastal hapu/iwi to make a decision based on criteria or restrictions set out in the relevant legislation.’

‘As with the ‘right to permit activities’ award, the decision of the coastal hapu/iwi to give or refuse consent could be made according to a Maori world view, on grounds which are not covered by the relevant legislation’ (p. 41).

New Zealand’s businesses can hardly be expected to derive much benefit from National setting up a regime of unelected, unaccountable coastal Maori tribal sovereignty for this is what the RFSA’s customary title really proposes.

In practice, it is likely that the veto power will be welded so as to make iwi de facto landlords. They will stay their veto and allow others to operate on sections of foreshore and seabed over which they have customary title only in return for money. Business isn’t keen on that.

On the other hand, iwi believe they own the foreshore and seabed and they want to be able to use the resources there as owners, not only after going cap in hand to the government or the council for licences on the same basis as any non-Maori organisation would have to.

National’s proposal does not allow iwi to side-step the consenting process, their customary title, as laid out in the Nats discussion document, will not give them any right to mine or undertake aquaculture superior to that of any other organisation (apart from their power to veto everyone else).

That’s why iwi want full, unalienable ownership, or some stronger form of customary title. The latest suggestion from iwi seems to be that iwi’s customary title should be presumed, rather than awarded by court or won by negotiation, and it will be for the Crown to challenge it if it wants. This would need to be a stronger version of customary rights than laid out in the Nats’ discussion document, it would have to include rights for mining and aquaculture. That’s lightyears from what National is proposing.

As it stands, there is such negligible difference between the rights iwi can be awarded under National’s proposals and under the current scheme that Ngati Porou has indicated it will stick with the deal it negotiated with the Crown under the current law – it cannot get anything more from National’s new law.

Of course, the Maori Party has always said that the existing foreshore and seabed law isn’t good enough (is racist, in fact). So, if National’s proposals don’t make any real difference, it’s hard to see how they can be acceptable to the Maori Party or iwi like Ngati Apa.

Now, Chris Finlayson has thrown two more cats among the pigeons.

On The Nation he encouraged iwi to negotiate with him rather than go through the courts. That’s ironic, after all, a week or so ago Finlayson was arguing the importance of the proposed reforms was that they gave back to iwi the right to go to court. And it suggests National might be aiming to leave the definition of ‘customary title’ loose enough to get the Maori Party to vote for it.

If the legal definitions are left loose enough for the Maori Party to support the reforms without losing face it runs the risk for National of court decisions that award customary title that is for all intents and purposes freehold. So, National will want to avoid court cases and negotiate directly.

Finlayson is also leaving open the possibility that iwi will be able to win ownership of minerals under the foreshore and seabed as part of their customary rights. That would be a major change. Just as the Crown owns all gold in the ground no matter who digs it up and charges the extractor a royalty, iwi would own whatever minerals are under their foreshore and seabed and be able to prevent others mining or charge a royalty. A gold mine (or, more accurately, a phosphates mine) for iwi but something more that will displease non-Maori business who want a crack at those resources themselves. The devil will be in the detail when it comes to mineral rights.

There is no simple solution here. That’s why Labour didn’t find one and why National’s ‘solution’ is essentially a rehash of Labour’s one. It’s also why National is remaining fuzzy on the key points like mineral rights.

Will National give iwi the rights to minerals and aquaculture that they want and alienate business in the process?

Or will they stick to the position they’ve offered? And if they do, will the Maori Party come on board and abandon the cause it was founded to fight?

Either the Nats will have to seriously annoy one of two key allies or the Maori party will have to desert its base.

Interesting times.

23 comments on “National’s rock and hard place ”

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  1. ianmac 1
    12 April 2010 at 12:30 pm

    A minor point but Finlayson’s response to a question was that Iwi would for example, be able to set up a hotel as long as it was within Consent process. But this is the Seabed and Foreshore, not dry land. Spurious?

  2. Graeme Edgeler 2
    12 April 2010 at 12:32 pm

    How can National’s solution effectively be a rehash of Labour’s, if only National’s gives the veto rights you write about?

    • Bright Red 2.1
      12 April 2010 at 12:46 pm

      The intersting thing about the veto power is it doesn’t give iwi what they want and it is seriously bad news for non-Maori business.

      From the persepctive of ‘does this give iwi what they set up the Maori Party to get’ – you would have to say there is not enough difference from what Labour passed.

  3. Zaphod Beeblebrox 3
    12 April 2010 at 1:32 pm

    How can you build something on land/foreshore that no-body owns? If there is no ownership who would be the applicant for resource consent? Who pays the rates, who pays for the rubbish collection and council services?

  4. tc 4
    12 April 2010 at 1:37 pm

    It seems to be part of the strategy to make it look like all is fixed and yet nothing is fixed all at the same time so where’s there’s confusion and an ability to negotiate they can spin as a win-win and mop up the red neck votes in the process.

    Unless labour get some very clear messages (short understandable ones not Goff speak) and keep the theme running through till next election……the nat’s will defacto look like solving an issue when they’ve done nothing of the sort.

  5. Jim Nald 5
    12 April 2010 at 2:28 pm

    re tc: “solving an issue when they’ve done nothing of the sort”

    That reminds me a friend, a staunch National voter, who was trying to work through the policy madness and saying National could be setting up a booby trap for when Labour gets in.

    To which I replied, National can then resurrect their iwi/kiwi billboards and revive that campaign!

  6. tsmithfield 6
    12 April 2010 at 4:02 pm

    Maybe this is smart politics by National.

    Firstly, although some conservative National supporters may not be happy with the arrangement, where else have they got to go? They would perceive Labour to be more liberal towards Maori than National. Hence, if this was an important issue to these voters they would probably tend to move further right (towards ACT) rather than left towards Labour. Hence, weakening of National support on this score is likely to strengthen its natural ally.
    Secondly, National may well pick up support from more liberal and Maori voters who see National as doing the best they can to rectify a perceived injustice against Maori.
    Thirdly, Labour doesn’t have the moral capital to try and benefit from this. For instance, if they complain the bill doesn’t go far enough, their own record with respect to the FS act will trip them up every time. Also, Labour is in no position to mount an IWI/KIWI type of campain without further alienating themselves from Maori.

    Thus, I don’t really see how National can lose from this.

    • Pascal's bookie 6.1
      12 April 2010 at 4:25 pm

      National can lose from this if they start to lose those ‘right wingers’.

      The iwi/kiwi mob aren’t huge and I think you are right that they won’t go to labour. If they go to ACT, and that shows up in the polls, then centrists and liberals will think pretty hard about what that means about what the next NACT govt will look like. Esp if the maori party make signals that they may not necessarily support the National Party after the next election. There are also various promises that were made that were specific to this term. National’s right wing will want that spelt out just as much as their opponents will. though for different reasons.

      National got centrist voters by being Labour lite and promising to keep Roger Douglas sidelined. They need to hold on to the centrists to retain power. It’s not about them gaining more centrists and liberals. The right wingers in the KB comments are all outraged and feel betrayed that Key hasn’t gone far enough in breaking his election promises. They are deluded.

      Another point to bear in mnd is that once the F&S act is done, the mP gains quite a bit of strategic freedom to differentiate themselves from their current colleagues in government.

    • Bright Red 6.2
      12 April 2010 at 4:29 pm

      “Firstly, although some conservative National supporters may not be happy with the arrangement, where else have they got to go?”

      Winston. Peters.

      captcha: literally

      • tsmithfield 6.2.1
        12 April 2010 at 4:45 pm

        Yeh, you could be right on that one.

        Having said that, though, if NZ First is seeking to rebuild its base around red-necks then NZ First will probably end up as another right-wing ally for National as well. Perish the thought though.

        • tsmithfield 6.2.1.1
          12 April 2010 at 4:52 pm

          Another thing, BR, do you think either of the major parties will want to cut a deal with Winston?
          Aferall, he has been the kiss of death to political parties in recent times.

          • felix 6.2.1.1.1
            12 April 2010 at 6:01 pm

            do you think either of the major parties will want to cut a deal with Winston?

            If it meant the difference between govt. and opposition? Both of them would. In a heartbeat. No matter what they say.

            • tsmithfield 6.2.1.1.1.1
              12 April 2010 at 6:23 pm

              Perhaps.

              On the other hand, JK has already taken a stance of not being prepared to deal with WP.
              If he takes the same stance next election, he will probably be believed by voters (given it is consistent with his previous position). This could have the effect of pulling the rug out from under WP’s feet. Right-wing leaning voters will probably decide not to go with NZ First because they would see the only option for NZ First would be a coalition with Labour. This being the case, it could “rescue” National votes potentially lost to NZ First, and at the same time, make it very difficult for NZ First to reach the 5% barrier.

              • felix …
                12 April 2010 at 7:57 pm

                I think you just like the clack clack sound the keys make when you type.

              • tsmithfield …
                12 April 2010 at 8:20 pm

                So, the problem with my logic is? Your problem is when you run out of logical responses you start mindless slanging.

                If National took the approach I am suggesting, then it would make it virtually impossible for Labour to go into a coalition relationship with NZ First. This is because the memory of the previous Labour NZ First fiasco will still be alive and well with most people, including potential Labour voters. Thus, a move by Key to distance National from NZ First would almost certainly be mirrored by Labour. If this is the case, then I doubt NZ First will have much of a future.

              • felix …
                13 April 2010 at 2:08 am

                Nah, I just get bored with pointless speculation very quickly.

                Everything you’ve suggested makes perfect sense as long as each of your predictions is accepted as a certainty. Sorry, but that just ignores too many variables to make it interesting.

  7. tc 7
    12 April 2010 at 4:18 pm

    Yup agree, it’s brilliant politics with the MP not needing to see beyond it as they’d be more then happy with using this as proof of their right to exist politically….job done.

    F&S was way too intellectual and backfired electorally from day 1 for labour…..a sword they’ll continue to be jabbed with by nat’s/MP.

    JK will smile and wave his arm of on this issue…….new game, new players with a rather tired opposition looking out of ideas.

  8. Adrian 8
    13 April 2010 at 5:14 am

    Remember Winston, even with all the bullshit swirling around him at the last election was only 3 people in 1000 away from Parliament. Add in this debacle, a couple of great televised debates where he makes Key look bewildered ( not a big ask ), sticking to his 3 messages ad infinitum and you have a repeat of the Peter Dunne ” commonsense ” momentum and ” keep the bastards honest ” Winnie is looking at 10% with a scary coterie of coat-tailers. God, he could get that 3 in a 1000 two days after the Epsomites get their revised rates bill.

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