Thursday, February 28, 2008

Another foreshore and seabed deal

The government has signed another foreshore and seabed deal, this time with East Cape iwi Te Whanau a Apanui. An overview of the agreement is here [DOC]. Like the previous agreement with Ngati Porou, it will grant substantial control over specified areas of foreshore and seabed to the iwi, including management rights, an environmental covenant, and the power to block resource consents which adversely impact on recognised customary rights.

Left unspecified at this stage is the geographic extent of the settlement, but the government appears to be relying on the same test used in the now-discredited 90-Mile Beach case: uninterrupted occupation and use of the land adjacent to the foreshore. But while such a test would have been perfectly appropriate in the 1840's, I'm not sure that it works so well now, when most iwi have been almost entirely dispossessed by the crown, and occupation and customary use have been disrupted by land seizures. Instead, it seems to legitimise and reinforce past Treaty breaches (OTOH, so would the alternative of "was it owned and used in 1840? Was it subsequently sold or the rights legally extinguished?", because while despicable, most of the government's dispossession of Maori was entirely legal).

Still, it is good that they can get agreement and a long-term way of resolving the issue. But again, this reinforces the tragedy of the foreshore and seabed: that we'd likely be seeing the same deals if the government hadn't legislated, only without the bitterness and mistrust that the law has created.