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  For example, the departmental report notes that “[i]n the Government’s view, the 2004 Act should be repealed because of its discriminatory effect on Māori and it should be replaced with legislation that remedies that discrimination and unequivocally protects existing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.

Marine and Coastal Area (Takutai Moana) Bill

The legislation to repeal and replace the Foreshore and Seabed Act is due to have its first reading this week.  The new Marine and Coastal Area (Takutai Moana) Bill will essentially give effect to the government’s preferred option for addressing foreshore and seabed issues, as signalled in the discussion document released at the end of March this year.

I have argued in previous posts that the recent proposals indicate that there has been no change in the Government’s attitude to Maori interests in the foreshore and seabed since the enactment of the Foreshore and Seabed Act.  Neither does this Bill indicate any such change.  Unfortunately, the Bill maintains many of the discriminatory aspects of the Foreshore and Seabed Act.  It still, explicitly, treats Maori interests as a lesser form of title than freehold title.  Until the Government’s attitude to Maori customary interests changes, it is going to be difficult to achieve a durable resolution of these issues and impossible to achieve one that is just.

Moana Jackson has pointed out many of the discriminatory aspects of the Bill in his latest primer on the subject.  There are other, often connected, aspects of the Bill which appear to me to be extremely problematic. For example, I find it strange that the new, statutory, “customary marine title” only exists where a particular part of the foreshore and seabed has been exclusively used and occupied, and yet the title itself does not provide for such exclusive rights.  Surely, if the exercise of customary rights is demonstrated by exclusive use and occupation, then exclusive use and occupation ought to be able to be recognised under this new form of customary title.  Alternatively, if exclusive use and occupation is not part of customary title, why would you need to prove exclusive use and occupation to have that title recognised?  If nothing else, this suggests that the legislative “customary marine title” is to be quite different from common law customary or aboriginal title, as applied in places such as the United States and Canada, where the general principle has long been to give legal recognition to the customary rights and activities that can be identified and demonstrated.  The Foreshore and Seabed Act may have already taken us down that road, but this is another indication that the general direction of that Act is being maintained by the Marine and Coastal Area (Takutai Moana) Bill.

I am also pretty under-whelmed by the way that mana tuku iho has been recognised.  The explanatory note states that “the mana tuku iho of iwi and hapū is explicitly recognised in the Bill”, though the only reference to mana tuku iho in the Bill is contained in Clause 4, which sets out the purpose of the legislation.  This may be symbolically important, which is not to say that this inclusion in the purpose provision has no teeth whatsoever.  In any case, as I have previously suggested, even primarily symbolic changes may help to open up a more productive discussion of Maori interests in the foreshore and seabed, However, the fact that this reference is not supported by more specific provisions, laying out some of the practical effects of the recognition of mana tuku iho suggests that the Government is not yet ready to engage in that more productive discussion.