Friday, December 10, 2010

Foreshore & seabed: Premature

I do not like the government's Marine and Coastal Area (Takutai Moana) Bill. It discriminates against Māori, limiting their access to the courts and the redress they can win from them. And it sets too high a test for proving customary rights. Iwi after iwi have gone before the select committee to tell them this. The conclusion: the bill does not have the support of Māori in its present form. And that means that it is not acceptable as a de facto settlement. It should not pass in its present form.

But all that said, I think Labour's withdrawal of support for the bill and promise to repeal it if enacted is premature. The basic structure of the bill - cribbed from the original Foreshore and Seabed Act - is sound; as I've noted before, it is roughly where we would have ended up anyway had the government negotiated in good faith and reached a settlement. What's wrong is the details. And those can be amended. Given the importance of this bill, and the need for a lasting settlement, I think it would have been better to wait and see whether the select committee would make the necessary changes before withdrawing support.

But now its done, and this means the law is effectively doomed. Oh, it will probably pass - Tariana Turia has too much invested in it now to let it fail, and she will be judged on that by her voters next year. But its not going to be the lasting settlement Chris Finlayson had hoped for. Instead, it will be relitigated at the next election, and the one after that, until Māori get the deal they want.

As for Labour's preferred solution - preserving access and providing a framework for customary rights while throwing the real questions of thresholds back to the courts to depoliticise them - this is going to look almost identical the existing bill, with a few tweaks. If so, it raises the question: why repeal? Why not simply amend? It also invites the question of why they're objecting to Pita Sharples wanting to revisit the bill if it is passed, since its largely what he wants as well. And if it is what the Māori Party really wants, but couldn't get out of National, then it suggests that there's a Parliamentary majority right there, if Labour (or the Greens) put up the necessary amendments. They should try that first, before committing to repeal.