Monday, November 24, 2008

Foreshore and seabed: the initial reaction

One question which has intrigued me for a while is that of the government's initial reaction to the foreshore and seabed issue. How did they get it so wrong? Did they even consider letting the law take its course, or did they decide to legislate right from the start? Thanks to the Official Information Act - and more importantly, the Ombudsman's office, I finally have some answers on this. Not as many as I'd like - somehow, DPMC has managed to carve itself a sort of monarchical immunity to the OIA, while other Ministries managed to hide behind "free and frank advice" - but I have some. The most relevant document is a briefing from DPMC's Policy Advisory Group to then-Attorney General and Minister of Treaty Negotiations Margaret Wilson, dated 20 June 2003 (the day after the decision was announced). This began by reviewing the decision and history of litigation, then began to explore its possible effects on a number of policy areas. The main issue it identified was uncertainty:

The court process would be triggered by individual iwi applications, and can be expected to be slow as each application is likely to involve complex historical, factual and legal questions. It can be expected to take some years to reach decisions in individual cases. The result may therefore be uncertainty over the legal status of parts of the foreshore and seabed around New Zealand for many years as the process works through. If that process does produce a change in the legal status of the foreshore or seabed, there may then need to be further legal and/or policy processes to clarify the implications of that changed status for other users of the area.
The briefing also explored the consequences for specific policy areas:
  • The historical settlements process: No substantive implications, though some groups (e.g. Whanganui iwi) might withdraw from the process to seek redress through the courts instead;
  • Petroleum and economic development: Successful claims could "re-open the argument that Maori also have a customary interest in any resources in the substratum, e.g. petroleum" (which only the crown thinks is closed). Also some fear about access rights over privately-owned seabed for business, pipelines, telecommunications infrastructure, or mineral exploration;
  • Marine reserves: these assume the crown owns the underlying seabed, but the reserve status of the area over any successful claim could always be revoked.
  • Reclamations: A biggie - the crown couldn't award title in reclaimed land without possibly creating a contemporary breach of the Treaty of Waitangi, which would mean people wouldn't do it until the issue was settled (but would that be the end of the world?);
  • Aquaculture: The other biggie, primarily because the government at the time was attempting to find a way to incorporate Maori customary interests (identified by the Waitangi Tribunal) in its existing policy framework. Interestingly, on this issue DPMC thought continued exploration through the courts would help the process, and that it was consistent with the current approach (they even refer explicitly to the Marlborough Sounds litigation - which began because the local council was shutting Maori out of aquaculture);
  • Oceans policy: None; the proposed policy was based on serious consultation with Maori, and any changes could easily be incorporated.

DPMC also identified five possible responses: let the legal process take its course; see what happens after the first test case is resolved; appeal the issue to the privy council (delaying a decision for a year); legislate to override the ruling and clarify the issue on the government's terms; or start a settlement process. In the end, they chose the second to last option. None of their identified risks or consequences seem to justify that unilateral, dictatorial approach. unfortunately, without more documents, we'll never know why they chose to do things that way.