The Ministerial Review of the Foreshore and Seabed Act 2004 points to a new way forward. Who are the winners from it, and who are the losers?

There is no doubt about what is the greatest casualty of the just released Ministerial Review of the Foreshore and Seabed Act 2004. The reputations of Helen Clark and Michael Cullen will forevermore have an asterix placed next them, as the architects of a piece of legislation now officially labelled as discriminatory on the grounds of race, in breach of the Treaty of Waitangi and international human rights law, as well as representing an unjustified taking of property rights.

Given Helen Clark's current role as the head of the United Nations Development Programme, an organisation purportedly committed to the promotion of human rights norms around the globe, that is a somewhat unhappy legacy. In his valedictory speech in the House, Michael Cullen tacitly acknowledged that the legislation was not his finest hour, noting "the lack of a consensus around the foreshore and seabed issue" as one of his failures while in office. What makes that failure even worse is that it was entirely one of Labour's own making. As David Farrar makes clear, Labour leapt to legislate long before Don Brash started stirring the racial pot at Orewa and put up those "Iwi/Kiwi" billboards.

However, the other big loser from the Review is New Zealand's parliamentary democracy. Don't forget that the only parties to genuinely oppose the passage of the Foreshore and Seabed Bill on principled grounds were Act and the Greens  (along with Tariana Turia and Nanaia Mahuta, who crossed the floor to do so). National voted against it, but only because they believed it gave too much to Maori. United Future also opposed it on the third reading, but only because of an abstruse dispute over whether the land at issue should be in "Crown ownership" or "public domain". So the great majority of MPs in the House actually supported a course of legislative action that the Review now says "was not a realistic option in ethical terms", using a lawmaking process that "left much to be desired."

So much for the losers. The big winner is obvious. When Tariana Turia left Labour  and joined with Pita Sharples to form the Maori Party, they took a gamble. Having made the Foreshore and Seabed this new movement's primary raison d'etre, they knew its success largely would be judged on its ability to deliver change on the issue. With the release of this Review that gamble has paid off handsomely, almost irrespective of what the National government does next. Because from now on, in any debate with Labour, the Maori Party simply needs to say: "you gave us the racist Foreshore and Seabed Act. We won a compete review of it. Who really delivers for Maori?"

The second winners are the Maori seats that put the Maori Party into the House. Although these have been criticised as unnecessary and discriminatory, the role that they have played in enabling Maori grievances to be channeled into the parliamentary realm has been fully vindicated. Without such guaranteed access of Maori, elected by Maori as Maori, these grievances can explode into violence. Following this Review, I don't think the seats are going away anytime soon.

The third potential winner, although the one still facing the greatest danger of making a sow's ear out of a silk purse, is National. If it can pull off a lasting settlement of this issue that satisfactorily balances Maori and public access interests, then it can take Don Brash's skeleton from its closet and bury him deep, deep in the ground. Indeed, it could well mark a long-term political rapprochement between the Maori and National parties. That is still, of course, a pretty big "if". A quick review of chapter 7 of the Review's report indicates just how complicated and loaded this project will be. Furthermore, the ongoing recession and National's cuts to public spending (which likely will impact more heavily on Maori than non-Maori) may yet drive a wedge between the two parties. But the opportunity is there for National to do something quite special in political terms.

The final winner is, oddly enough, New Zealand's parliamentary democracy. Yes, Parliament (and most of our political parties) failed a test in 2003/04. But this Review proves that our political system is self-correcting, as is the case with Labour's other ill-considered enactment, the Electoral Finance Act 2007. Opponents of these policies have agitated within the electoral process for change. They have mobilised their supporters, marshalled their arguments, and kept the matter on the public agenda. And despite the fact that Maori are a minority in electoral terms, the dynamics of MMP have allowed them to achieve their ends.

So yes, the Foreshore and Seabed Act 2004 was a stain on New Zealand's Parliament and system of lawmaking. But it is a stain that New Zealand's Parliament and system of lawmaking looks set to erase all by itself. Which is a good thing, and something to bear in mind when considering what our constitution should look like in the future.

Comments (16)

by Tim Watkin on July 02, 2009
Tim Watkin

Brilliant summation Andrew. I suspect there's some devil in the detail yet, though. Beach access was the beat-up issue, but there are still questions about the monetarisation of customary rights, what happens to the rest of the privately owne foreshore and seabed and the commercial and mineral potential that lies there...

And is there potential for a precedent being set here that gives Maori wider customary rights (wider than just the odd muttonbird) that pakeha New Zealanders don't have? Most pakeha aren't fussed about muttonbirds, but land, well there they might have issues...

by Andrew Geddis on July 02, 2009
Andrew Geddis

Tim,

On the precedent point ... possibly, or possibly not. Most Maori customary rights have been legislated out of existence (either deliberately, or incidentally through legislative regulation of some particular issue ... for instance, any claim to a "customary right" to take kereru has been extinguished by the Wildlife Act 1953).

No Right Turn has a good post on why customary title to the foreshore and seabed still exists (or, existed up 'till 2004).

One interesting area for future development, however, is freshwater. Who owns the water in the rivers, lakes and streams of NZ? The Crown has never legislated this into its (or private) ownership. So do Maori have a customary claim to property in this? Something to watch, as NZ struggles to work out how to allocate this resource in the future ...

by Raymond A Francis on July 03, 2009
Raymond A Francis

Good coverage Andrew

 I have to say I have been uncomfortable with the Maori seats for some time

Reason being a lot of New Zealanders have Maori blood and the percentage increases steadily with Maori gaining seats on their merit

But I have to say this whole thing will give the special seats credibility for quite some time

by dave on July 03, 2009
dave

Andrew, Excellent post.

One of your links ( to the nzbr) is not working - I assume that is a link to Philip Joseph's paper?

 

by Andrew Geddis on July 03, 2009
Andrew Geddis

Raymond,

A valid point. However, the number of MPs of Maori descent elected in 2008 is 17 ... or about 14% of the 122 seat House ... which is pretty much the same as the Maori population. (In 2005-2008 there actually were more Maori in Parliament than at present, mainly 'cause of NZ First's presence (somewhat ironically!)).

Of course, abolishing the 7 Maori seats might result in more Maori being promoted up party lists, etc. Or it might not. But for the present, these seats don't seem to be resulting in numerical overrepresentation.

 

Dave,

Hmmm ... strange. But yes - it is meant to link to Phil Joseph's paper.

by Chris Diack on July 03, 2009
Chris Diack

I find the ‘ethnically allocated parliamentary seats or the threat of Maori violence' argument to be odd and if it is the constitutional justification for continuing with the seats then it's a good reason to abolish them.  If the threat of violence be the rationale for a parliamentary seat then we are in big trouble.

 

The fact is that Labour held all the Maori Seats in the first place.  It did not prevent Labour passing the Seabed and Foreshore legislation.  The Maori Seats were and have been almost totally irrelevant to most of the big constitutional issues facing Maori.  Over their history particularly since the 1930's they have been an electoral backwater.

 

Even now it isn't the existence of the Seats that actually gives Maori influence over this issue.  It is the nature of the issue itself and secondly it is what we know about all groups of voters and electoral systems.  When those voters are ‘in play' (as opposed to mostly voting for one party) they have influence.

 

To my mind the Maori Party actually represents a willingness of Maori to think beyond Labour.  They had briefly flirted with NZ1 and then returned to Labour but haven't really been "in play" as voters since the 1930's.  Some Maori voters are acting in the manner that incentivises competitive responses from politicians and political parties.  If most Maori returned to Labour or most went to the Maori Party then this behaviour would not illicit the competitive response any more.

 

Of course one does not need the Maori seats to be ‘in play'.  Arguably Maori would be even more influential without them over our history. Under FPP Maori electorates gave National victories in marginal provincial seats in the North Island that they would not have otherwise held.   Over the 12 yr history of MMP this is the first such case where MP's from Maori seats have influence and that has a much to do with the quality of the MPs and their leadership and the nature of the issue as it does with the Seats themselves.

 

While the seabed and foreshore legislation might have been the moment of conception for the Maori Party the circumstances of one's conception does not necessarily lead to political relevance.  It is Maori voters and Maori Party politicians that are doing that.

 

I do love the left having to rhapsodise over private property rights however and having to concede that an uncompensated legislative taking by a leftwing Government was wrong.... we are making progress.

 

by Chris Trotter on July 03, 2009
Chris Trotter

I strongly disagree with your assessment of the Ministerial Review, Andrew. I believe the report to be self-serving and riddled with bad faith.

And, as for your own analysis, well, just try this counterfactual.

Labour doesn't pass the legislation. National's "Save Our Beaches" campaign (launched within days of the Court of Appeal decision by Nick Smith BTW) galvanises Pakeha New Zealand. National wins 2005 election by landslide. Maori seats abolished. All Treaty references removed from NZ statutes. Affirmative action programmes abolished. Massive civil strife.

Still think the F&S Act was a bad move?

If the answer is "Yes", then I hope you can explain in what ways the counterfactual alternative would have been preferable.

 

by Graeme Edgeler on July 03, 2009
Graeme Edgeler

Over the 12yr history of MMP this is the first such case where MP's from Maori seats have influence and that has a much to do with the quality of the MP's and their leadership and the nature of the issue as it does with the Seats themselves.

I've always liked pointing out that were we to now adopt a first-past-the-post electoral system, we'd have at least 12 - and probably 13 - Māori seats.

[so I'm doing at again :-) ]

Phillip Joseph's rationale for ditching them goes away if we abandon MMP, and there is no way we'd go back to the gerrymandered "must be four seats - no matter the electoral population" system we used to have.

by Andrew Geddis on July 03, 2009
Andrew Geddis

Chris D,

"I find the ‘ethnically allocated parliamentary seats or the threat of Maori violence' argument to be odd and if it is the constitutional justification for continuing with the seats then it's a good reason to abolish them"

I think the "better inside the tent pissing out than outside the tent pissing in" rationale actually is a great argument! Insofar as the Maori seats allow for a measure of "separateness" within a unified system of lawmaking and governance, they work to mediate conflicting end-goals that, in other places, have proven to have had a lot worse consequences. The fact neither Maori sovereignty proponents nor strict "one law for all" proponents don't like them makes me think that they probably are a pretty good compromise.

"Even now it isn't the existence of the Seats that actually gives Maori influence over this issue.  It is the nature of the issue itself and secondly it is what we know about all groups of voters and electoral systems.  When those voters are ‘in play' (as opposed to mostly voting for one party) they have influence."

Yes ... but the seats allow Maori voters to be "in play" in a way that is quite different to how they would be if the seats didn't exist. In other words, the nature of the debate/election contest amongst the electorate in those seven seats is quite different (in terms of issues/tone/method of debate/etc) to the nature of the debate/election contest in the "general" election. So yes ... obviously they "work" when fought over - but they also mean the nature of that fight is different to what it otherwise would be. (BTW: what of NZ First's sweep of the seats in 1996 (and subsequent collapse into various factions, with some of the Maori MPs propping up National) ... is this not relevant to your analysis of the seats' place in recent times?)

 

Chris T,

Not quite sure that things are quite that black and white (if you'll excuse the phrase) as you suggest. What about this counterfactual: Helen Clark comes out two days after Ngati Apa and, in her best stateswomen/great leader mode, announces that as the case raises potentially far-reaching questions of law it requries the opinion of NZ's top court (the Privy Council) and so an appeal will immediately be filed. (This is what the Ministerial Review says should have happened.) Using the temporal window provided by this appeal process (and batting back Nick Smith with stern injunctions to respect the outcome of the judicial process), she lays the groundword for a Royal Commission that will (if native title is confirmed by the P.C. (which it almost certainly would be)) immediately begin an inquiry into how best to regulate this area so as to (1) ensure full public access for recreational users (a non-negotiable bottom line) and (2) recognise Iwi/Hapu property rights. With the issue safely cabined off into judicial/quasi-judicial forums, it loses much of its political heat long before Don Brash hits the stage at Orewa.

Still think a panicked rush to legislate was such a good move?

by Chris Trotter on July 03, 2009
Chris Trotter

Well Andrew, that might be the way political life appears to work from the perspective of the majestic towers of the University of Otago, but, let me assure you, it's not the way it works anywhere else.

The rest of the political world doesn't just sit back and allow a government to kick such a juicy chunk of raw meat into touch.

None of the solutions you proffer would have protected Clark's government from the sort of Pakeha backlash that Brash's Orewa speech unleashed.

Not all debates are conducted with the decorum of the University Common Room.

Clark knew this only too well. She also knew that, on this issue, she had as much to fear from her own supporters as she did from National's.

The Court of Appeal's decision struck at the very heart of the ordinary Pakeha New Zealander's understanding of how their country worked. No amount of lofty legal argument was going to reassure them. They needed to hear that, having proved it was unwilling to uphold the popular understanding of who "owned" the foreshore and seabed, the Court of Appeal would be put in its place by the nation's highest court - Parliament.

And that is precisely what Clark did.

by Andrew Geddis on July 03, 2009
Andrew Geddis

"None of the solutions you proffer would have protected Clark's government from the sort of Pakeha backlash that Brash's Orewa speech unleashed."

What could some real leadership on this issue have achieved? We'll never know, will we. I'd suggest that great political figures are defined by how they respond to challenges such as this - do they try and shape the future and guide people toward their better angels, or do they passively accept "how things are" and react accordingly?

Labour made a snap decision - they gambled that the quick announcement of legislative action would dampen down the issue enough to "move on" from it. But it actually inflamed the situation further, lost them a substantial chunk of Maori support (possibly forever) and helped pave the way for Brash and Orewa. You can paint this as a "There Was No Alternative" situation if you want, but that argument didn't wash for Douglas in the 80's, and it doesn't wash now.

" They needed to hear that, having proved it was unwilling to uphold the popular understanding of who "owned" the foreshore and seabed, the Court of Appeal would be put in its place by the nation's highest court - Parliament.

And that is precisely what Clark did."

At the risk of being accused of being a denizen of a majestic tower (shock, horror ... academic dares argue politics with Chris Trotter, man of the streets!), Parliament isn't a court (cf Westminster, which is). NZ's Parliament is purely a lawmaking institution. The nation's highest court was the Privy Council. If the government needed breathing room to work out how to react, that was the place to send the issue. In the year (minimum) it would take for that body to hand down a decision, Labour would have had a pat response to every question on the topic ("The Court of Appeal's judgment isn't final, and it's important to let the judicial process take its full course"). And they could plan for what to do next.

In my opinion, National has had the chance to see how Labour screwed this one up. They've used that knowledge to (so far) handle it better and smarter than Labour did. I suspect if you weren't so tribally Labour, you might actually admit the same.

by Chris Diack on July 04, 2009
Chris Diack
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So if Maori Seats keep Maori inside the tent what of the around half of Maori with the Maori option that are not on the Maori Roll; are they either not represented in Parliament or not "real" Maori.

In practice for most of their history the Maori Seats have mostly been inside the "Maori Tent" at the political jamboree nowhere near the real action.

My view is that it would be a mistake to assume that with a more competitive electoral system like MMP that the variety of views of Maori would not find representation in Parliament, it would probably be a different parliament in a positive sense.  And you are also discounting the possibility that Maori could form a party under MMP if sufficient numbers of Maori voters want to reward such a party.

If the nature of the contest in Maori seats is so significant to Maori it's a pity that there is a low turn out.  On the other hand the turnout might be related to the fact that in most cases there has been no real competition in the seats - the campaigns that you speak of actually don't exist that much - politicians only campaign when there is a risk of loss; when Labour lost them all the first time around to NZ1 their Maori MP's were the last to know what was happening.    I suspect if the Maori seats all go the Maori Party then Maori Seat voters who don't identify with the Maori Party will drift off that roll and the turn out will continue to trend down..

As to the beneficial effect of ethnically allocated parliamentary representatives actually the track record of parliaments with these seats is not hot.  We only have to look at Sir Paul Reeves' latest racially PC Fijian activities to prove that.

As for Mr Trotter, of course every tail end Government runs out the Après moi, le deluge, and in truth Clark's Government was actually looking "tail end" in 2005.  The 2005 to 2008 term proved it.  What really galls about Brash (which is why the left demonise him so) is not that he forced Helen Clark to do over Maori (while she held all the Maori Seats) but rather that Brash represented a part of New Zealand history that the left had declared officially closed; irrevocably off the political menu with all its leading figures totally unelectable.   Helen Clark had declared that the whole Nation had "moved on" she had conquered not only the left but had tamed the right as well not even a centrist like English was acceptable.   And then up springs the unelectable unacceptable Brash, moving so fast he cannot be polled in order to craft her response and nearly wiping her Government out - neutering it in its last term.  He upset the official history.

Clark could have spent political capital on working up a deal on the Seabed and Forshore issue but instead she personally chose not too.   That wasn't National's fault it was her own conservativeness; a timidity born of the comforts of power.

by Andrew Geddis on July 04, 2009
Andrew Geddis

Chris D,

I don't think a person's decision whether or not to go on the Maori roll says anything about their "Maoriness" in general - it simply reflects their decision as to how they wish to engage/be represented in one confined part of their lives. So there's no contradiction in a person saying "in my private life I proudly embrace my Maori identity and take full part in Marae life/cultural activities, but when it comes to voting/electoral engagement I don't see this as being particularly relevant." In fact, I think the fact of choice as to roll is crucial (in contradiction to how things were up until the 1970s). However, the fact is that (1) a majority of people identifying as Maori have chosen to go on the Maori roll, and (2) an even larger majority of first-time enrollees choose the Maori roll (hence the proportion of Maori on the Maori roll looks set to continue growing). I should have thought this demonstration of individual choice/preference would be relevant to decisions about the Maori seats' future - and certainly something that those on the libertarian right would think twice about overriding in the name of general social welfare?

As for the possibility of a Maori Party contesting MMP elections even without Maori seats, this is always on the cards - although I suspect you'd also oppose racially-based/oriented political parties? (FYI - the 1986 Royal Commission which recommended an end to the Maori seats also recommended that there be a radically lowered party vote threshold for political parties representing "Maori interests" ... a suggestion I think completely unworkable, but an aspect of the Commission's report that tends to get ignored by opponents of the seats (like Phil Joseph).) But (1) there is more to the Maori seats than simply giving an avenue into Parliament (this is the Treaty/recognition of constitutional partnership aspect we haven't really discussed, and I suspect we'd thoroughly disagree on), and (2) the Maori seats (as I mentioned above) as an institutional mechanism foster a different kind of debate/politics amongst those running in them/voting for them than would occur without them. You think an end to this kind of debate/politics would be positive. I disagree.

As for voter turnout in the seats, I don't think lack of competition can be the sole driver here. At the 2008 election, the seats were undoubtedly contested (and everyone knew that they would be contested) - yet turnout in the Maori seats remained a good 20% lower than in the general seats. There's some research on why this might be the case here.

Finally, if Fiji is a valid example of what happens if we keep Maori seats, then my earlier example of what happens without them (ie native violence in Canada) is a valid example of what happens without them. In which case, we're damned if we do, damned if we don't. Alternatively, we might say that Fiji is a dumb way of doing things (giving guaranteed levels of representation irrespective of actual populations; forcing people to vote in one kind of seat or another), recognise NZ isn't like that, and then move on.

 

by Craig Ranapia on July 06, 2009
Craig Ranapia

Chris:

Let me try another perfectly pragmatic counterfactual: In 1986, Fran Wilde is convinced to withdraw the Homosexual Law Reform Bill by the school of thought that said she was simply whipping up a backlash that would cost Labour the '87 general election.  Clark had the courage of her convictions then, and history proves that the passive homophobes were wrong.

What's changed?

by Chris Trotter on July 06, 2009
Chris Trotter

The differences, Craig, are substantial. To begin with, the amount of agitation and education undertaken by the advocates of homosexual law reform was sufficient to have created a large and well-informed minority to carry the argument within the wider community. Maori nationalist rhetoric, far from building community support, has alienated it. With the exception of a handful of Pakeha (usually located within the universities and/or the civil service) backing for tino rangatiratanga is pretty thin on the ground.

Another difference is that the number of people directly affected by the issue (i.e.  those who are, or are related to, gay people) is relatively small. Contrast this with that other big social reform that got the Right on its hind legs, the anti-smacking bill. Precisely because this struck a nerve in just about every household with kids, Labour's role in allowing its passage was one of the key contributing factors to its 2008 defeat.

Access to the F&S is much the same. It is an issue which goes to the heart of the Pakeha understanding of what it means to be a citizen of this country. Anything, or anyone, who threatens that understanding will be seen as an enemy - and treated accordingly.

Clark understood this (growing up in one of the prime areas of Crown confiscation - the Waikato - would have helped in this regard). Tragically for this country, Key does not understand this.

Clark's course of action was the only one that she could follow without unleashing hell.

by Tim Watkin on July 06, 2009
Tim Watkin

Chris, thanks for your comments. I must say – and I mean this in a piss-taking way, my friend – you're the only man I know who could put up a 'counterfactual' and then criticise the reply as too ivory tower!

The problem with your counterfactual is that you don't say what Labour would have done instead of legislating. Clark and Cullen wouldn't have just let it drift. Andrew gives on alternative - the Privy Council. What else might they have done?

And I wonder just how deep this pakeha sense of how the country worked really went. Clark was quick to say that the ruling went against the pakeha understanding that the beach belonged to everyone. But it doesn't. Look at the fact that 30% of the land bordering waterways is privately owned. If pakeha are as deeply moved on this issue as we all assume, why isn't their class anger over that? Yet the open access crowd have never really been able to get any political traction, (outside of United Future, anyway!). Yes, it would have left an opening for National. But Clark had a certain amount of political capital in 2003 and perhaps could have relied on a number of leading Maori to make assurances about beach access, so I'm dubious as to whether National could have turned it into a landslide.

What's more, the right to do whatever you bloody well like on your own land and to have your day in court is also pretty close to the pakeha heart.

(It's interesting to consider the difference this time round, given the presence of the Maori Party. They hardly speak on behalf of all Maori. But a number of people seem to see it that way, so when Tariana and Hone say 'we guarantee beach access', they seem to be somewhat reassured).

The interesting thing about the 2003 debate was that Winston would have presumably turned on Clark, while ACT would have rallied behind her (although probably quietly). That might have made a difference too. Aren't 'what ifs' intriguing?

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