Sunday, January 3, 2010

Year 170: Foreshore and Seabed Act Review

It is no exaggeration to say that the Foreshore and Seabed Act 2004 has been a hugely controversial piece of legislation.  It sparked a massive protest march finishing with one of the biggest rallies seen at Parliament in recent times.  It led to Tariana Turia resigning from Cabinet and the Labour Party, and, eventually, it led to the Māori Party forming around her.  Tariana Turia is, of course, now a minister again, this time in a National-led administration.  As part of the deal under which the Māori Party agreed to vote with the National-led government on confidence and supply matters, the government appointed a panel to review the Foreshore and Seabed Act.  The panel reported in June 2009 and the handling of this whole issue provides some interesting pointers for assessing the current health of the Treaty relationship.
The review panel’s report provides a helpful summary of the background to this issue:
Public interest in the issue of the foreshore and seabed was triggered by the June 2003 decision of the Court of Appeal in Attorney-General v Ngāti Apa (the Ngāti Apa case). In summary, the Court ruled that:

  • the Crown was wrong to contend that certain statutes affecting the foreshore and seabed had had the effect of extinguishing such Māori customary title as might exist; and
  • the Māori Land Court has jurisdiction, under Te Ture Whenua Māori/Māori Land Act 1993, to determine whether any part of the foreshore and seabed is still Māori customary land.

While the decision gave rise to uncertainty regarding the “ownership” status of the foreshore and seabed, it also confirmed that this could be tested in the Māori Land Court. However, rather than let that process run its course, the government decided to legislate. The Act vested in the Crown title to all foreshore and seabed land not already in private ownership. It also made some provision for Māori customary interests to be recognised in limited circumstances.

There was considerable opposition to the government’s decision to legislate, to the speed with which it did so, and to the provisions of the Foreshore and Seabed Bill.

In the aftermath of the Ngāti Apa decision, the Crown’s actions in relation to this issue were criticized by the Waitangi Tribunal, the UN Special Rapporteur on Indigenous Peoples, and the UN Committee on the Elimination on all forms of Racial Discrimination.  Therefore, it came as little surprise that the ministerial review panel found that the Act was discriminatory, that it severely restricted customary rights, and that it was “simply wrong in principle and approach”.  Anyone interested in these issues should take a look at the review panel’s report itself.

The Government’s response to the review panel’s report seems to be taking longer to develop than initially anticipated.  The Attorney-General issued a press statement on 1 July 2009 acknowledging the receipt of the panel’s report and indicating that the Government would likely indicate its response in late August.  August came and went, as did September and October.  Eventually, on 2 November 2009, the Prime Minister announced that the Government would almost certainly move to repeal the Foreshore and Seabed Act, though, as at the time of writing, we are still no wiser as to what the Act will be replaced with.

The fact that the ministerial review panel was established to report on the Act must be seen as a sign of a healthy Treaty of Waitangi relationship.  It suggests a willingness on the part of the Crown to reconsider restrictions placed on Māori rights and it sought to engage Māori and Pākehā in a conversation about a significant public policy matter.  As the review panel itself notes:

We believe also that this Review provides an ideal opportunity for reflection on how to better develop policy in areas where significant Māori interests are concerned. That could be one positive and fruitful outcome of a reconsideration of foreshore and seabed policy. By initiating this review process the government has already indicated a willingness to revise processes of policy formation in order to ensure that issues such as that which arose over the foreshore and seabed in 2003–4 do not recur.

But, let’s not forget that we do still not know what the Government’s response to this review will be.  Repealing the Act is certainly a step in the right direction, and will be an important symbolic act.  However, the key question remains as to what will replace the Act.  It would be difficult to say that the Treaty relationship is in good heart if, in the wake of the ministerial review panel’s report, supported by the weight of submissions by Māori and others, the Government still refuses to recognise Māori rights in the foreshore and seabed.  

The repeal of the Act is one thing, establishing a framework that provides for the appropriate recognition of Māori rights is quite another.  It seems to me that the Māori Party will have a tough time getting some substantial, positive reform from this Government.  After all, the Government MPs are essentially the same group of people who backed Bill English’s ‘demand’ in 2003 for the then Labour Government to legislate to ‘confirm’ exclusive Crown title in the foreshore and seabed, and then supported Don Brash’s infamous Orewa Speech which suggested the policy proposals on which the Foreshore and Seabed Act was based were too generous to Māori, going well-beyond a recognition of customary rights.  So, if these people can agree to genuine recognition of Māori customary rights in relation to the foreshore and seabed, then that really will speak of progress in the Treaty relationship.  But I don’t think it’s time to celebrate just yet.