Foreshore and seabed: reporting back

The Fisheries and Other Sea-related Legislation committee has reported back - or rather, failed to report back - on the Foreshore and Seabed Bill. Their reports can be found here.

The Labour-Progressive section centres on the ability to create "Maori Reservations" under the Te Ture Whenua Maori Act 1993, and suggests that this is a form of trusteeship solution. I'll need to look at the law a little more closely before making any judgement on that.

National's section is predictable, calling the bill "divisive" and expressing the opinion that Parliament had not intended the Te Ture Whenua Maori Act 1993 to apply to the foreshore and seabed. Which misses the point that Maori claims do not rest on that act, but on the long-standing common-law doctrine of aboriginal title. They also oppose customary rights as they encourage "rent seeking behaviour", while insisting that the rights of existing property owners (including, presumably, their right to charge or impose conditions on those wanting to impinge on their property) be protected. Their overall thrust is one of property rights for all - except brown people.

ACT opposes the bill as an infringement on private property rights - but also on the basis that government should not be attempting to define Tikanga Maori with respect to coastal land ownership. Of course, if the government doesn't define it, the courts will - but I suspect that they'd object to that too (and have in the case of the Wanganui headwaters case). So their "respect for private property" essentially boils down to a denial of any recognition of the basis of that property, no different from the racism of Justice Prendergast.

ACT also opposes customary usage rights, on the contradictory grounds that they "fail to provide the holder with any meaningful or clear property right" while at the same time "invite application as instruments of leverage for obtaining blackmail payments". But the ability to make such side deals (or "blackmail payments" as ACT calls them) was one of the chief purposes of the RMA - it freed people up to decide for themselves the value of their property rights, without involving the state. ACT's real complaint, as with all of their whining about the RMA, is about the distribution of property rights, not with the ability to make deals. And in this case, they're objecting to the thought that anyone brown (or rather, anyone other than a developer?) might posses such rights.

The Greens have a constructive report which favours the crown granting only inalienable title, negotiated co-management, and protection of public rights of access. They seem to favour a trusteeship model, with the sole difference of which party the underlying title is vested in. Frankly, if public access and recreational use is guaranteed, it doesn't matter who owns it, and if this sort of solution is acceptable to Maori, the government should adjust the bill to suit.

United Future is also constructive, and suggest both further consultation and a number of technical amendments. One interesting one (which is also supported by the Greens) is a requirement for a supermajority to alienate any foreshore or seabed in the future. While I sympathise with the sentiment, such a clause would (for example) prevent any grant of foreshore or seabed as part of a Treaty settlement. Given the desire of right-wing parties to play politics over righting the injustices of the past, I think that this would be a bad idea.

The independent specialist advisor's report has a lot of interesting material about customary rights and aboriginal title and integrating these with the common law. The ISA favours ancestral connection as a "given", requiring proof only for its boundaries, and given the cultural context of maori as tangata whenua, this is fair enough. However, they separate this sort of ancestral connection (granting a general right to participate in the planning process) from guardianship or co-management, which should still require some form of court order.

The ISA also calls for the redress provision (which currently calls for negotiations) to be modified to state that redress will consist of the recognition of some form of qualified title, to be exercised subject to certain conditions: in other words, co-management or trusteeship. Which again is a solution I can support. The core problem with the bill is that it threatens to rob Maori of aboriginal title; specifying redress in this fashion makes it clear that aboriginal title is being codified and protected, rather than extinguished.

So, there's a lot of good stuff in the report, and far more agreement than you'd get simply from reading the press releases. There's probably a way forward here, and I look forward to seeing the government's proposed amendments.