Saturday, February 19, 2011

Māori Affairs Select Committee Report on Marine and Coastal Area Bill

The Māori Affairs Select Committee reported back on the Marine and Coastal Area (Takutai Moana) Bill on 9 February 2011.  The committee wasn’t due to report back until 25 February, so the early report back was something of a surprise.  Also, as some commentators have pointed out, the report itself is unusual in that it recommends that the bill be passed without amendment but then attaches a list of amendments (some technical and some substantive), which had been recommended in the Ministry of Justice’s departmental report on the bill.  One might have expected that the select committee would at least indicate which of those amendments, if any, that it supported. Opposition members of the committee have also indicated that they are unhappy with the final stages of the committee’s process, which allowed one two-hour meeting to discuss a 500 page departmental report on the bill (in some cases the report was received by committee members only on the day of the meeting), and less than a day to prepare minority reports.  Along with the fact that opposition members were denied access to the government’s legal advice on the effect of changes to the threshold test for establishing customary marine title, it would hardly be surprising if this unnecessarily rushed process further undermined the possibility that this bill might provide a durable solution to matters relating to the foreshore and seabed.

It is a shame that the select committee didn’t allow time for a more thorough analysis of the departmental report, because it contains some interesting material, upon much of which it would have been useful to hear the committee’s view.  For example, the departmental report notes that “[i]n the Government’s view, the 2004 Act should be repealed because of its discriminatory effect on Māori and it should be replaced with legislation that remedies that discrimination and unequivocally protects existing public rights such as access and use rights.”  I understand how the bill provides for public rights.  That is indeed unequivocal.  But I fail to see how a bill that removes Māori property rights in the foreshore and seabed while allowing other forms of title to continue unaffected is anything but discriminatory.  If the committee, or a majority of its members think that this bill will remove the basic discrimination at the heart of the Foreshore and Seabed Act, then I would like to hear their reasoning.  If they consider that the bill maintains the discrimination between the property rights of Māori and those of other New Zealanders, then this ought to be highlighted in the report as something that is at odds with the purpose of the bill, as it is described in the departmental report.

The departmental report repeats the Government’s preference for a public domain ownership option.  The report notes that the Government considers ownership to be a “blunt (and potentially divisive tool” for recognizing all the rights and interests in the foreshore and seabed.  Ownership, by itself, might not provide for all the rights and interests in the foreshore and seabed.  But whoever said that if the foreshore and seabed was held in Māori ownership that it would not be subject to any mechanisms of regulation that could provide for “the wide range of rights and interests in the foreshore and seabed”? I am sure the members of the select committee could have developed a number of creative ways of combining ownership and regulation to give effect to both public and private rights and interests, as we see in most areas of our law.  Or, at least, it would have been useful to hear whether the select committee was persuaded, by the submissions that it heard, that the majority of Māori would like to swap their ownership of areas of the foreshore and seabed for the prescribed list of rights set out in the bill.

Instead of any detailed engagement with these important, and sometimes complex, issues, we have a one-page majority report that addresses the issues raised by over 5,000 submissions in seven sentences, and attaches material from the departmental report without analysis or comment.  Setting aside the content of the bill, the report of the majority members of the select committee is an absolute disgrace.