Foreshore and Seabed: Can the symbolism of repeal lead to real change?

So, we now have agreement between the Māori Party and the National Party as to the broad shape of the regime that will replace the Foreshore and Seabed Act 2004.

The proposed regime is essentially the Government’s preferred option, which was flagged in its recent consultation document.  It is certainly welcome news to see progress being made on repealing the Foreshore and Seabed Act, though, as I noted in a previous post, some of the fundamental problems with that act remain in the proposed new regime.  The basic conceptual and practical subordination of Māori property rights still sits at the heart of the proposed regime. 

There are a couple of notable changes from the preferred option in the consultation document that are reflected in the agreement announced this week.  The ‘public domain’ concept will be called something else; and the proposed regime will also include universal recognition of a Māori group's continuing mana in respect of the foreshore and seabed.  It is not clear that either of these changes will have any immediate practical effect, but they are important nonetheless.  

I previously suggested that the change from Crown ownership to public domain was primarily symbolic, but that such a change was extremely important to remove the perception of a brazen confiscation of Māori property rights by the Crown.  Similarly, it will be important that in moving away from the language of ‘Crown ownership’, the new regime does not import, through the language of ‘the public domain’, connotations of terra nullius, the concept of ‘empty land’ that European colonisers used throughout the world to justify the taking of land from Indigenous peoples.  Specific rights and obligations exist and will continue to be exercised in relation to the foreshore and seabed and to mask that fact with the suggestion that it is owned by everybody and nobody is not helpful.

The ‘universal recognition’ of mana in relation to the foreshore and seabed may also appear to be largely symbolic, but I think represents a significant, though tentative, step forward in the way that this issue is conceptualised.  This recognition strikes me as hinting at a change in the parameters of the discussion of foreshore and seabed issues.  It suggests, albeit cautiously, that the rights, responsibilities, and relationships that iwi and hapū have with areas of the foreshore and seabed within their rohe is determined by tikanga Māori and continues to exist distinct from property rights defined by common law or legislation.  Now, this symbolic recognition is not supported in the government’s proposed regime by measures that would provide for its practical implementation, outside of an extension of participation in conservation processes.  However, it does, perhaps, open up the possibility of framing this issue differently.

As I noted in my earlier post, the proposed regime marks an improvement on the Foreshore and Seabed Act 2004, but it maintains a subordinate position for Māori rights and as such cannot hope to provide just or fair outcomes.  Although, it may be that some of the symbolic changes to the regime may open up the space for a longer, more productive, conversation about the expression of Māori rights and obligations in relation to the foreshore and seabed within a tikanga framework.

Haronga v Waitangi Tribunal (Court of Appeal)

Back in January, I wrote a brief post on the High Court decision Haronga v Waitangi Tribunal.  That decision has since been appealed and the Court of Appeal last month dismissed that appeal, confirming the decision of Justice Clifford in the High Court.

As I noted in my earlier post, the facts of the case are essentially as follows:

In Haronga, the application for an urgent hearing was made in September 2009 in light of Crown advice that the Crown and Te Manu Whiriwhiri (a body comprised of several mandated groups from throughout the Gisborne region) intended to initial a deed of settlement in December 2009.  Mr Haronga sought an urgent hearing before the Waitangi Tribunal to address remedies for Treaty breaches specifically in relation to the Mangatu State Forest.  Mr Haronga argued that redress in relation to these breaches should be addressed through the Mangatu Incorporation and that none of the groups within Te Manu Whiriwhiri had the mandate to agree a settlement in relation to those specific issues.

Judge Clark, in the Waitangi Tribunal, declined the application for an urgent hearing.  Mr Haronga then applied to the High Court for judicial review of Judge Clark’s determination.  Justice Clifford heard the application in the High Court:

In his judgment, Justice Clifford dismissed the application for judicial review, finding that the Tribunal’s determination was lawful.  The Tribunal, when determining whether to grant a remedies hearing, is entitled to consider whether settlement negotiations are ongoing or stalled and whether or not a remedies hearing will assist with the resolution of the claim in question.  It was not unlawful for Judge Clark to consider these matters in this particular case.  Furthermore, it was found to be artificial to completely separate the remedies claim from the substantive claims in relation to the Mangatu forest and there was no evidence to indicate that the mandate in relation to the Mangatu forest claims had been withdrawn from the group within Te Manu Whiriwhiri that was proposing to settle those claims.

As noted above, the Court of Appeal has confirmed Justice Clifford’s decision.  It is, however, interesting to note the way that the Court has characterised the issues raised as being about more than simply the procedural processes that the Waitangi Tribunal utilises in order to manage its caseload.  Referring to the decision in Attorney-General v Mair, (on which I have also posted recently) the Court of Appeal is careful to note “it is unlikely that an appellate court will second-guess a tribunal’s decision as to its priorities”.  Nevertheless, the Court agreed with the appellant’s view that there are substantive issues involved that relate to the right of successful claimants to seek a particular form of remedy in a meaningful way.

While the Court accepted that “a blanket refusal to consider making resumption orders because broader settlement discussions are underway may be problematic.” and stated that “an inflexible “circuit breaker only” approach to the granting of remedies hearings may be objectionable”, ultimately, it was the Court’s view that this as not the approach that had been taken by Judge Clark in the Tribunal.  The Court of Appeal agreed with the decision of the High Court, which had found that Judge Clark had appropriately considered the particular merits of the application for an urgent remedies hearing and exercised his discretion to refuse such an application accordingly.