Monday, March 21, 2016

If the government wants Treaty settlements to stick, it needs to obey them II

Two weeks ago the government introduced legislation to establish the Kermadec Ocean Sanctuary, banning mining and fishing in the entire EEZ around the Kermadec Islands. Its a good move, but there's a problem: they failed to consult Maori, who are now taking them to court:

Maori have launched legal action that could sink one of the world's largest ocean sanctuaries.

Te Ohu Kaimoana, the Maori Fisheries Trust, has filed proceedings at the High Court in Wellington to prevent the Government establishing the Kermadec ocean sanctuary, north-east of New Zealand.


The trust wanted the Crown's 1992 Sealord fisheries settlement with Maori to be considered, however. Tuuta said it provided Maori with customary fishing rights and guaranteed the trust would be fully consulted "on matters relating to the management of fisheries and ecosystems".

That had not occurred with the Kermadec sanctuary proposal, he said.

John Key's response: pout and stamp his feet and say that he can pass whatever laws he likes. Which is true - Parliament is sovereign, and no court is going to say that it can't legislate (it might however injunct the government from issuing orders in council or other decisions required to perform key acts under a law). But the core issue here isn't the sovereignty of Parliament, but whether the government will keep its word to Maori.

In 1992, the government promised Maori it would consult them on fisheries decisions as part of a final and binding Treaty settlement. They haven't done that, so they're in breach. And while they haven't breached any of the specific consultation requirements under the Fisheries Act 1996 (because they're doing this by legislation), they've certainly breached its spirit, and their fiduciary duty to actively protect the interests of their Treaty partners. And this is a very stupid and dangerous thing to do. To point out the obvious, Treaty settlements return only a tiny fraction of what was stolen, and are "final" only by Maori goodwill. Breaking them undermines the entire Treaty settlement process and invites Maori to re-open their claims. And that's something that I don't think anybody wants to see.

I want to see a Kermadec Ocean Sanctuary (in fact, I want there to be other ocean sanctuaries too). But I want the government to obey the Treaty, keep its word, and treat its Treaty partners with respect. These are not inherently incompatible goals, and the only reason we are in this mess is because National has behaved arrogantly and with contempt for Maori. They need to fix this quickly; otherwise they're going to create a bigger problem which will haunt us for generations.