We know that the foreshore and seabed deal does not do what the Maori Party was established to achieve but, almost paradoxically, it may end up giving iwi some powers that will seriously anger non-iwi business.
The foreshore and seabed will remain in Crown ownership, taken without having being purchased from its previous owners. Those former owners, the iwi, will not be able to got to court and win back full title. Instead, they will be able to win customary title, if they can prove continuous exclusive use of the territory since 1840 – a tough standard that National doesn’t think many iwi will be able to achieve over much of the foreshore and seabed.
But the Maori Party is trying to convince its backers that large swathes of the foreshore and seabed will be won back and the rights that will be won are meaningful. Of concern to business are the development veto right and mineral rights. Here’s the NBR’s take under the title ‘Business beware Maori sovereignty landing on a beach near you’:
…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.
Now, I say fair enough. It’s really their land, so they should have the right to exclude development on it if they want. And the same goes for mineral rights. But business is deeply worried. The realisation is dawning that wherever iwi can get their customary rights recognised they’ll be able to act as landlords. The veto power and mineral rights will be used to extract rents from businesses. From the business perspective, a new layer of taxation has been imposed based on ancient history… and we know how much the buggers hate tax.
It’s all a bit confusing, the foreshore and seabed deal both doesn’t give iwi what they are after and is seen by businesses wanting to undertake activities like aquaculture, tourism, and undersea mining as imposing an unknown and possibly very large tax from an unaccountable power. This isn’t helped by Chris Finlayson talking out both sides of his mouth – saying that the new deal is symbolic on one hand, and saying customary title is ownership on the other.
Also of concern for business will be the ‘universal recognition’ awards announced earlier this week. These are the second ‘concession’ to the Maori Party that Eddie predicted. There are no details but we’re told that iwi will be able to have their mana over tracts of the foreshore and seabed recognised by court order without needing to meet the same tough standards required to get customary title. It’s an ambiguous concept. National will want its base to see recognition of mana as mere symbolism but to Maori mana is not just a nebulous idea of ‘respect’ and ‘dignity’ it is power, the ability to control the real world. It’ll be interesting to see which definition wins out, but business will be very worried about the implications.
More fuel for the Country Party?
[I wrote this the other day. Since then, the Herald’s editorial has given an account of the rightwing concerns]