Indigeneity and the Foreshore and Seabed

One thing I, perhaps like Lew at Kiwipolitico, realised when reading bits of the the ministerial review of the Foreshore and Seabed legislation, was that the review was conducted within principles of indigeneity with an explicit Treaty-based approach. Indigeneity is not exactly the hot topic within the National Party, but course having Maori academics as panelists on the ministerial review would have certainly pleased the Māori Party, as a panel that operates under the politics of indigeneity would recommend repeal of the legislation.

Indigeneity is greater than a bicultural partnership or a minority status: Indigenous rights predate citizenship and are often articulated by Māori to enhance a greater control over their lives and resources, including in the case of the foreshore and seabed. Māori don’t desire exclusive access to the beaches, but they do desire to have the same property rights as everyone else. This doesn’t mean the desire better ones, but you certainly wouldn’t blame them if they complain when they get lesser ones, particularly when a government enacts these lesser rights.

So, should the Māori Land Court have jurisdiction to consider title to the Foreshore and Seabed? And if it does, should customary (or even freehold) title be granted? That depends on whether you think "one law for all" means that all have the same rights. It depends whether you think the Treaty of Waitangi is a "legal nullity" or part of our unwritten constitution. To some extent, it depends on whether you think customary rights are inherent because of Māori first occupancy, rights that were not explicitly extinguished. And it’s clear what the report writers thought. In just 20 or so words into the report they said:

We consider the whole coastal marine area is subject to customary interests unless expressly extinguished by some specific act.

But customary interests were not extinguished by some specific act. As the Foreshore and Seabed Act legislates Māori as lesser citizens, it is to be repealed. At least that should be the reason for repeal. But according to this media report, some National Cabinet members want a clear explanation of Maori customary rights, or title, and how that might be interpreted by the courts.

They could start by reading something Doug Graham wrote a few years ago, or even the the Ministerial review, starting at page 151. And if they have read the review, then this "clear explanation" that is sought is either a good out to do nothing any time soon, they are seeking a solution that is not in the ministerial review, they don’t think the report is clear enough, or they want to avoid making a decision on customary title. No doubt John Key is "relaxed" about it all.

The ministerial review's first recommendation is to immediately repeal the Foreshore and Seabed Act. The second is to form a policy based on premise that the whole of the coastal marine area (the foreshore and the seabed) is subject to customary title unless it can be clearly shown that such title was not wrongfully extinguished. The third is to draft interim legislation recognising customary title. The rest flow on from that. National wants to please everyone. It remains to be seen how it will recognise iwi and hapu customary rights and do so. In other words, how it would promote equal rights for all.

Policies and legislation recognising indigenous rights do not have a habit of pleasing everyone.Perhaps this is why Attorney General Margaret Wilson said in parliament that although the Foreshore and Seabed legislation breached the Bill of Rights, due to it being blatantly discriminatory, this was "demonstrably justified in a free and democratic society".