Wednesday, March 31, 2010

Foreshore & Seabed v2.0

Last year, a Ministerial Review into the Foreshore and Seabed Act 2004 concluded that the Act was "simply wrong in principle and approach", that it had discriminated against Maori by stripping them of their right to their day in court, that it was based on foreign legal principles and that the thresholds it set for proving customary ownership were too high. Today, the government released its proposal [PDF] in response to that review. The headline is that the Act will be repealed. But the regime which replaces it looks a lot like... the Foreshore and Seabed Act!

There are changes. Rather than being owned by the crown, the foreshore and seabed will be placed in the public domain. Unexplored customary title extinguished in 2004 will be restored. Iwi and hapu will be able to go to court to prove their customary title.

But there's a big similarity: the courts will not be able to award ownership. Instead, claimants who prove their customary title will be given a package of rights, rather than fee simple. Its a much better package, including an absolute veto power over coastal activities in the relevant area, just as a landowner would have. But its not ownership. This isn't really a surprise - as I've noted before, the original Act was likely where we would have ended up anyway if a solution had been negotiated in good faith rather than imposed unilaterally to pander to a backlash by entitled Pakeha rednecks. But presenting Maori with essentially the same solution with a few symbolic cosmetic changes may not be enough to satisfy those like Hone Harawira to whom legislated Maori ownership has become a touchstone.

But Hone Harawira isn't the whole of Maoridom, and if the majority of iwi (and the Maori Party) are happy with this framework and satisfied with the symbolic repeal of the insult of 2004, Parliament should pass the bill. And that includes Labour. While people like Chris Trotter have been urging them to pull a Brash and cynically pander to racists to win power, its worth remembering the response of Jim Bolger to such suggestions: that he'd have to govern the country in the morning.