Category: Constitutional Reform
For the last couple of weeks we have been expecting the appearance of the government’s draft foreshore and seabed bill. Usually reliable rumours told us that it would be going to the Cabinet in the last week or two, and would then be introduced to the House. For some reason there has been a delay, and rumour has it that it may be another couple of weeks at least before it is introduced. I know not what the reason may be. It would be nice to think that the government is actually coming to its senses, that the Prime Minister and Attorney-General are actually beginning to realise what a monstrous crime they are proposing to commit, and what the public reaction will be to this theft of our common heritage and solemn recognition that New Zealand is henceforward and increasingly an apartheid state[1].
New Zealand is at a crossroad between tribalism and democracy. The Maori tribal elite, backed by the Maori Party - and now the National Party - are gaining momentum, pushing the country towards a future where corporate iwi will control our key institutions and resources.
Almost without a ripple, John Key’s administration is about to table a bill in Parliament that will have far reaching consequences that few can imagine. I am of course referring to the Government’s proposed changes to the foreshore and seabed.
The National-led government’s attempts to sanitize its controversial “remedy” to the Foreshore and Seabed Act (2004) grow ever more curious and contradictory by the day. It is quite clear that the government and Maori interests already do not see eye-to-eye over what the proposed replacement legislation will mean in practice, and that the government cannot hold a consistent line when explaining to the wider public what will happen when Maori tribes lay claims to title over the foreshore and seabed.
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Just in case you hadn’t heard, it’s now official; under the coalition Government’s proposed Foreshore and Seabed Act Mark II, customary title is recognised as ownership. No longer is ‘nobody is to own’ the foreshore and seabed, the way it was sold in the consultation document. Instead, iwi and hapu will have the right to claim a new form of title , which will sit over and above the residual public domain ‘in much the same way that fee simple title sits over the Crown’s radical title to land’, in the words of the Attorney General. From the economic point of view, that amounts to ownership. I am sceptical that it can even be reconciled with the weaker notion of public domain, which is left as an undefined residual and as such, subject to constant encroachment from activities and exclusions possible under the new title. So much for the reassuring words about an undefined ‘public access’ right.
It has now been confirmed that under the new constitutional arrangements National and the Maori Party are planning to push through before Christmas, Maori will become the legal owners of large tracts of New Zealand’s foreshore and seabed.
Whatever the outcome of coastal iwi quests for customary title to the foreshore and seabed, under Mark2 of the foreshore and seabed agreement, two lessons stand out. Firstly the National Party is only too happy for power and political expediency, to racially privatise public property such as the foreshore and seabed to iwi.
Five years ago, the United Nations Special Rapporteur on the Rights of Indigenous People, Rodolfo Stavenhagen, visited New Zealand to consult with Maori. In the report he subsequently produced, he urged the then Labour Government to recognise Maori rights to self determination. In particular, he recommended that the government support the UN Declaration on the Rights of Indigenous Peoples, that they repeal Crown ownership of the foreshore and seabed, and that they undertake a constitutional review in order to entrench the Treaty of Waitangi.[1]
There is, in the United Nations Declaration on the Rights of Indigenous Peoples, one very surprising omission. Nowhere is there any definition of who or what exactly an indigenous person is. It would surely not be unreasonable to expect a definition. One is not needed in the 1948 Universal Declaration on Human Rights, because it deals with all human beings, and we know what they are. But who is indigenous?
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