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 â€˜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.