Thursday, June 17, 2010

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.