UVic’s Proposed Bachelor of Indigenous Laws

The Faculty of Law at the University of Victoria (British Columbia) has been developing proposals for a Bachelor of Indigenous Laws.  A draft proposal paper was circulated recently which sets out the thinking behind this program and the considerable work that has gone into its development.  As stated in the draft proposal paper, the basic idea is as follows:

The program will teach Indigenous legal orders and the common law in parallel so that, at the end of four years, students attain professional degrees in both.  The program will work between the two sets of traditions, comparing them, using one to illuminate the other, exploring points of connection and possible relationship.  The program will explore the rich content and processes of Indigenous traditions, teaching them in collaboration with the communities themselves.

So, at the end of a four year program of study, students would graduate with two professional law degrees an LLB (in the common law traditions) and a BIL (Bachelor of Indigenous Laws).

I thought it might be useful to point to some of the key aspects of this very exciting project.

The draft proposal paper identifies four reasons why such a program is needed.  First, the paper notes that while many courts and legislatures have started to recognize the importance of Indigenous legal orders, engagement with Indigenous law is ad hoc and sporadic and, therefore, “those arguing for Indigenous norms carry a heavy burden, forced to fashion solutions from first principles in contexts that lack developed engagement with Indigenous orders.  Second, the paper notes the powers of self-government that Indigenous peoples exercise and the “clear trend towards dismantling paternalistic institutions, placing those institutions under Indigenous control” and the need for understanding of Indigenous forms of social ordering in the design and operation of governance structures.  Thirdly, the paper suggests there is a need for such a program to support the development of Indigenous solutions to the social and economic disadvantage faced by many Indigenous peoples.  The final reason that this program is needed that is noted in the draft proposal is the need to develop models for engagement across Indigenous and non-Indigenous legal traditions and structure the interface between them to achieve more fruitful and productive relationships.

One of the most impressive things about the proposal is that is draws on the long experience that the University of Victoria has in relation to Indigenous legal education.  The program builds on the expertise of the law school’s faculty members in relation to Indigenous legal issues and the emphasis on the provision of legal education to Indigenous students, but also the experience the university has gained through the Akitsiraq law school (which delivered a law degree to a single cohort of students in the Inuit territory of Nunavut - information about a second Akitsiraq program, to be offered by the University of Ottawa and the Akitsiraq Law School Society, can be found here), two intensive summer programs in Indigenous legal traditions, and community relationships built through initiatives such as the annual Aboriginal Awareness Camp and the Ethnohistory Field School run by the university’s Department of History in collaboration with the Sto:lo people.

There are also several important aspects of the structure of the proposed program that should be noted.  Several courses within the program will be taught “trans-systemically.” This is an approach which is used in teaching common law and civil law at McGill University in Montreal, Quebec.  The draft proposal paper explains the basic idea of teaching a course trans-systemically:

the subject matter of that course (e.g. Constitutional Law, Contract Law, Family Law, the law of Business Associations) will be taught across two traditions simultaneously, so that students will tack back and forth between them, comparing them, each illuminating the other.

One other extremely important aspect of the proposed program is the field school component.  Students in the program will participate in two field schools, “situated within the legal orders studied in their trans-systemic courses”, during the final two years of their degree.  The idea of the field schools is that they will combine “set instruction with experiential learning, including work of value to each community”.  During these field schools, some students will work with lawyers who serve Indigenous communities, some will work with elders (as the traditional keepers of the law), assisting with matters such as the development of appropriate legal structures, the operation of tribal courts, or other relevant projects. The experience gained through the field school will be shared with the community through various round-tables and community forums.

I think this is shaping up to be a very exciting program.

Māori and Treaty issues in NZ's report to the Human Rights Committee II

Following on from my previous post, the UN Human Rights Committee issued a press release following its meeting last week to consider New Zealand’s report on human rights protected by the International Covenant on Civil and Political Rights.  As was evident from their prior written questions, members of the Committee were interested in a number of specific areas of New Zealand’s performance in relation to human rights matters.  In particular, the Committee raised questions about criminal justice, domestic violence, asylum seekers and immigration issues, counter-terrorism measures, and issues relating to the Treaty of Waitangi and the status of Māori.  Though many of these areas have implications for Māori, it is this last set of issues that I would like to address in this post.

The Committee’s press release notes:

Several experts [that is, members of the Committee] took exception to the New Zealand delegation’s claim that consideration of the Waitangi Treaty of 1840 was built into the country’s law-making process, underlining that the Treaty’s translations – and, thus its very meaning – remained unsettled, even contentious.  To that end, Helen Keller, expert from Switzerland, stressed that a “consultation process” regarding land and water rights legislation was not the same as seriously integrating the views and concerns of the Māori in the decision-making process.

Ms Keller also asked whether New Zealand intended to accept the Declaration on the Rights of Indigenous Peoples.  Simon Power, responding on behalf of the New Zealand delegation indicated that work was ongoing on the issue of the Declaration and the New Zealand Government’s possible support for it.  He also noted that the rights recognized in the Declaration had been supported in New Zealand for many years.  If that is the case, one might wonder why the New Zealand Government has such difficulty with the idea of supporting the Declaration (as mentioned in my previous post, Claire Charters has provided a very useful consideration of the Government’s position).

Picking up on the question of uncertainty, another Committee member suggested that the divergent views on translations of the Treaty of Waitangi indicated that the Government might merely be paying “lip-service” to the participation of Māori in public decision-making.  This issue of certainty in relation to the meaning of the Treaty is a central concern of Matthew Palmer’s recent book, The Treaty of Waitangi in New Zealand’s Law and Constitution, which provides a very helpful analysis of the problems associated with different forms of uncertainty associated with the legal status and effect of the Treaty.

Another Committee member noted that, while he was encouraged by the Government’s attitude to the Treaty of Waitangi, he had some concerns about the Treaty settlement process.  These concerns appear to relate to the issue of agreeing settlements without sufficient regard to the claims of dissenting or opposing groups (aspects of which I have touched on in previous posts, here, here, and here).  The Committee member urged the Government to aim for truly negotiated solutions rather than merely “clinching the deal”.

The New Zealand delegation was also asked whether any of their ten members were themselves Māori.  I’m not sure what the response to that was, but that in itself might provide an interesting indication of how important the Government perceives the participation of Māori in public processes!

Māori and Treaty issues in NZ's report to the UN Human Rights Committee

As part of its monitoring role, the United Nations Human Rights Committee will this week be considering New Zealand’s performance in relation to the recognition of civil and political rights.  As a signatory to the International Covenant on Civil and Political Rights, New Zealand submits periodic reports to the Committee, setting out how it is addressing its obligations under the Covenant.  This process is focused specifically on the rights identified in the Covenant and so is not as broad an inquiry as last year’s Universal Periodic Review. That is a relatively new process, which covers all international human rights obligations of participating countries.  This week’s meeting is therefore unlikely to raise wider issues such as New Zealand’s position in relation to the Declaration on the Rights of Indigenous Peoples.  That was canvassed as part of the Universal Periodic Review and has also been noted by the Aotearoa Indigenous Rights Trust in their submission to the Committee [for a discussion of the issues relating to the Declaration, see this video, and the resources collected here, and especially this article by international law scholar Claire Charters].  However, the Committee has asked New Zealand to respond to a number of specific issues, several of which directly relate to Māori and/or the Treaty of Waitangi, and which will no doubt be the subject of further discussion at this week’s meeting.

In relation to the principle of non-discrimination set out in Articles 2 and 26 of the Covenant, the Committee asked New Zealand to provide information about the measures that have been taken to mitigate the discriminatory effects of the Foreshore and Seabed Act 2004.  In particular, the Committee was interested to know whether a consultation mechanism with Māori had been established.  In response, New Zealand has submitted information about the review of the Foreshore and Seabed Act and the review panel’s recommendations, ultimately noting that “On 2 November 2009, the Government announced that it is likely that the Foreshore and Seabed Act would be repealed.  No decisions have been made about what will replace it.”

The Committee was also concerned about the high levels of Māori incarceration and asked what measures New Zealand was taking to address that issue. New Zealand’s response acknowledges that “at this stage no specific targets or timelines have been set for reducing the relatively high proportion of Māori in prison” but goes on to note that “the Drivers of Crime work programme will involve development of measures of effectiveness of interventions for Māori including reducing recidivism and the prison population”.  The response also notes that the Department of Corrections now has a Māori Services Team and “provides a number of programmes and services specifically aimed at reducing re-offending through the use of tikanga Māori (customary Māori) concepts and values”.

In relation to the Treaty of Waitangi, the Committee asked the following:

What measures does the State party envisage taking to incorporate the Treaty of Waitangi in domestic law? Please indicate whether a mechanism to settle comprehensively land claims of indigenous peoples, consistent with the Treaty of Waitangi and with the Covenant rights, has been created. Please also indicate whether the Waitangi Tribunal has been provided with increased financial resources.

The response to that set of questions notes the incorporation of Treaty principles into specific pieces of legislation (such as the Conservation Act 1987, the Resource Management Act 1991, the Education Act 1989, and the Crown Minerals Act 1991).  The response also points to the role of the Waitangi Tribunal and sets out information about the progress of the settlement of claims made under the Treaty of Waitangi.  In order to address the particular question about the resourcing of the Waitangi Tribunal, the response states “The Waitangi Tribunal received an increase in funding in 2007 and its current total operating expenditure is $12.15 million.  The Government is satisfied that the current level of funding is sufficient for the Tribunal to carry out its functions”.

It will be interesting to see what further comment the Human Rights Committee will choose to make on these and other issues.  In any case, unlike Professor Paul Moon, I think it is extremely beneficial for the Committee to bring attention to these issues and to expect New Zealand to implement measures that give full effect to internationally recognized human rights.

Justice and 'special treatment'

At the recent ACT Party conference, Dr Muriel Newman delivered an address in which she suggested that the Party could help to heal “the racial divide” by opposing “Māori privilege”. It included the simplistic call for “one law for all” and explicitly recalled Don Brash’s 2004 Nationhood speech.  As media commentator Russell Brown has pointed out on his blog, we should not be surprised to hear extreme views from Dr Newman.  But there are strands of Dr Newman’s thinking that form part of the more mainstream discussion of Māori rights and Treaty of Waitangi issues that I think it would be helpful to address.

For example, there seems to be a broad consensus in New Zealand that it is fair to provide redress for historical breaches of the Treaty of Waitangi.  But this often comes with the qualification (implicit or explicit) that once historical claims are dealt with we can put all this Treaty business behind us.  Any continuing recognition of distinct Māori or Treaty rights would not be “one law for all” and would be, exactly as Drs Newman and Brash have articulated, an unacceptable “Māori privilege”. It was precisely this sentiment that led the previous Government to back away from its ‘Closing the Gaps’ policy.  The same sentiment was at the heart of the Prime Minister’s Waitangi Day speech.  That speech was entitled ‘Beyond Grievance’ and repeatedly referred to the theme of ‘moving on’, once fair settlements for historical claims have been concluded.  As I have noted previously, achieving just and durable settlements expeditiously is to everyone’s advantage.  But removing the sense of grievance associated with historical wrongs does not end the Treaty relationship nor remove the ongoing obligations of the Treaty partners to each other.   Yet according to the Prime Minister, only an extremist intent on division would suggest that the Treaty should play a continuing role in decision-making and the exercise of public power.

The difficulty with that approach is that it relies on a very narrow view of justice. In this context it is useful to consider the work of the feminist theorist, Nancy Fraser, who, in her 1997 book, Justice Interruptus, explored the connection and tension between the need to address different types of injustice in reparations and reconciliation processes. Fraser argues that justice requires both economic equality and cultural recognition and has considered ways in which these two objectives of justice can be integrated.  Fraser distinguishes between these two justice objectives, or, as she describes them, ‘socioeconomic’ justice and ‘cultural-symbolic’ justice.

Fraser conceptualizes socioeconomic injustice, in a general sense, as “informed by a commitment to egalitarianism”. It is injustice that derives from the “political economic structure of society” and includes all forms of economic exploitation, marginalization, and dispossession. On the other hand, cultural-symbolic injustice is more closely associated with identity-based claims.  Fraser identifies cultural-symbolic injustice as being rooted, not in political-economic structures, but rather in “social patterns of representation, interpretation, and communication”. This type of injustice is connected to cultural domination, disrespect, nonrecognition, misrecognition, and denial of recognition.

Fraser sees the distinction between socioeconomic injustice and cultural-symbolic injustice as vitally important because the strategies that are employed to address one type of injustice are often in conflict with strategies that address the other form of injustice. One form of injustice requires redistribution, a leveling of the playing field to achieve a kind of ‘sameness’, while the other form of injustice calls for measures that recognize difference.  This is particularly important to understand in the context of Indigenous Peoples’ justice claims because Indigenous Peoples tend to have simultaneously experienced both types of injustice.  For example, Māori communities have suffered socioeconomic injustice by being dispossessed of much of their lands and natural resources.  They have also suffered cultural-symbolic forms of injustice by the implementation of legislation and policies that have prohibited their cultural practices and had serious and detrimental effects on their language. 

In other words, dealing with historical Treaty breaches is only one part of the justice equation.  If the agreements which settle historical Treaty claims are to be just and durable and contribute to genuine reconciliation then they must be coupled with measures which address the ongoing role of the Treaty in New Zealand public life.  Which is why it would be unfortunate if such measures continue to be characterized as some form of ‘Māori privilege’ or ‘special treatment’.  Far from healing racial division, such a characterization seems more likely to undermine the reconciliation project.

           

Treaty Settlements in Tāmaki Makaurau

Over the past few weeks, there has been quite a bit of media coverage of agreements reached in relation to the settlement of Treaty of Waitangi claims in the Auckland region.  As might be expected, the New Zealand Herald has shown particular interest in these agreements and this weekend added some useful contextual detail about the process that has led to agreement being reached.  That process has negotiated some complex issues and has at times been somewhat fraught.  All those who have worked to reach these agreements ought to be applauded for their hard work and the immense good-will that has been demonstrated.

As has been mentioned in much of the coverage of these agreements, the Waitangi Tribunal’s Tāmaki Makaurau Settlement Process Report also played a role in shaping the process of settlement negotiation in Auckland.  I thought it might be useful to revisit some of the key findings of that report in light of the recent agreements.

The 2007 Tāmaki report was the result of claims made to the Waitangi Tribunal that the process which the Crown had undertaken to negotiate the settlement of Ngāti Whātua o Ōrākei’s claims were prejudicial to other Māori groups in the Auckland region.

A key theme of the Tribunal’s Tāmaki report is the importance of whanaungatanga (relationships).  The report begins by explaining the connection between whanaungatanga the Treaty guarantee of tino rangatiratanga and notes:

One of the most devastating consequences of the failure to give effect to the guarantee of te tino rangatiratanga has been the breakdown of Māori social structures  –  the structures that created and expressed whanaungatanga.

The Tribunal considered that, in achieving an agreement in principle with Ngāti Whātua o Ōrākei, the Crown had jeopardized relationships between other tangata whenua groups and the Crown, and between other tangata whenua groups and Ngāti Whātua o Ōrākei. This was despite previous reports where the Tribunal had addressed similar issues and expressed serious concerns about the Crown’s Treaty settlement process, even though, in those cases, the Tribunal had ultimately determined that it would be unfair to the groups in negotiation with the Crown to halt their settlements.

In the Tāmaki report, the Tribunal found that the Office of Treaty Settlements had misconceived its task by: focusing exclusively on its relationship with Ngāti Whātua o Ōrākei at the expense of other relationships; casting other tangata whenua groups in the role of only ‘interested parties’, and; viewing Treaty negotiations as analogous to any other commercial negotiation, rather than being a negotiation that is “quintessentially about restoring damaged relationships”.  The Tribunal further suggested that the Crown’s lack of engagement with other tangata whenua groups was contrary to tikanga Māori, yet the need for officials “to be aware of, and comply with, tikanga Māori in their dealings with Māori is another aspect of partnership under the Treaty”.

Though it was not only the Crown’s settlement process that was problematic.  The Tribunal expressed concern about the substance of the proposed settlement as well.  There are many examples of this that are cited in the report, but to take just one, the Tribunal noted:

The question that the Office of Treaty Settlements posed itself in order to decide whether to grant exclusive redress to Ngāti Whātua o Ōrākei with respect to maunga was whether Ngāti Whātua o Ōrākei’s were the predominant interests in the maunga. We think this is often the wrong question where cultural redress is concerned, but always the wrong question where there are multiple interests in maunga. That is because maunga are iconic landscape features for Māori. They are iconic not because of their scenic attributes, but because they represent an enduring symbolic connection between tangata whenua groups and distinctive land forms. Sometimes, these land forms are the physical embodiment of tūpuna.  Thus, associations with maunga are imbued with mana and wairua that occupy the spiritual as well as the terrestrial realm.  Maunga express a group’s mana and identity.

The recent settlement agreements suggest that the Crown have taken on board many of the Tribunals findings and recommendations relating to the process and the substance of Treaty settlements in Auckland.  But it is worth recalling the Tāmaki report because it is a reminder both that a narrow focus on achieving speedy settlement agreements can damage the wider project of reconciliation, and that the Waitangi Tribunal continues to play a crucial role in that project of reconciliation.

Inter-American Commission on Human Rights to consider indigenous land rights in BC

I’ve just recently caught up with an interesting decision from the Inter-American Commission on Human Rights (IACHR) that was delivered towards the end of last year and which relates to the British Columbia Treaty process.  The case was brought by the Hul’qumi’num Treaty Group who represent six First Nations in treaty negotiations with the provincial government of British Columbia and the federal government of Canada. The IACHR has not yet dealt with the substantive issues raised by the Hul’qumi’num Treaty Group.  This decision only deals with the question of the admissibility of the case, simply determining that the IACHR will hear the case.  But this, in itself, is an important step and the reasoning of the IACHR is significant.

The IACHR is an autonomous branch of the Organization of American States and receives cases (in the form of ‘petitions’) that allege violations of human rights that are protected in the American Declaration of the Rights and Duties of Man or the American Convention on Human Rights.  Canada is a member of the Organization of American States and, having ratified the Charter of the Organization, is subject to the jurisdiction of the IACHR.

The Hul’qumi’num Treaty Group allege that Canada is in breach of its human rights obligations, primarily, under various articles of the American Declaration of the Rights and Duties of Man.  Those articles are:  Article XXIII (right to property); Article XIII (right to culture), and Article II (equality before the law).  The petition alleges that the rights of the Hul’qumi’num Treaty Group have been breached because of “the absence of demarcation, established boundaries and recording of title deed to their ancestral lands; the lack of compensation for [the Hul’qumi’num Treaty Group] ancestral lands currently in the hands of private third parties; the granting of licenses, permits and concessions within ancestral lands without prior consultation; and the resulting destruction of the environment, the natural resources and of those sites the [Hul’qumi’num Treaty Group] consider sacred”. 

As noted above, the IACHR has yet to consider the substance of those allegations.  But its decision to admit this case is significant, in particular, because of the IACHR’s approach to the question of whether all domestic remedies have been exhausted. As is common with other international bodies, the IACHR will not admit cases if there issues can be reasonably addressed by the domestic courts or through some other process in place within the country’s own legal system.  In this case, the Canadian government argued that the Hul’qumi’num Treaty Group had not yet explored all possible avenues to address there concerns within the Canadian legal system.  Therefore, these issues could not yet be considered by an international body such as the IACHR.  However, the IACHR disagreed.

 

The Canadian government argued that the Hul’qumi’num Treaty Group’s ongoing engagement with the British Columbia Treaty process was the ideal process for addressing their claims in relation to territorial rights.  But the IACHR note that this process has not allowed negotiations on the subject of restitution or compensation for lands now in private ownership, and such lands make up 85% of the Hul’qumi’num Treaty Group’s traditional territory.  The Hul’qumi’num Treaty Group have been involved in the treaty negotiation process since 1994 and their central claims have not yet been resolved.  The IACHR, therefore, found that this process was demonstrably not an effective mechanism for protecting the rights at issue in this case.

The Canadian government also pointed to a range of proceedings that the Hul’qumi’num Treaty Group could pursue through the courts, including actions to obtain recognition of aboriginal title, actions under the provisions of the Canadian Charter of Rights and Freedoms, applications for judicial review, and petitions under heritage legislation demanding that the Crown fulfill its obligations to conduct prior consultation with indigenous peoples.  To support this argument, the Canadian government points to judgments from the Canadian courts which have recognized the existence of aboriginal title and the right to consultation. However, the IACHR notes that the experience of other indigenous groups has shown that none of those judgments has resulted in a specific order mandating the demarcation, recording of title deed, restitution or compensation of indigenous peoples with regard to ancestral lands in private hands.

Consequently, the IACHR found that there were no domestic remedies that provided the Hul’qumi’num Treaty Group with any reasonable expectation of successfully being able to protect the rights in question.  The IACHR will therefore proceed to consider the substance of the case.  The Hul’qumi’num Treaty Group is hoping for a decision on the substantive issues sometime this year.  That decision could have significant implications for the treaty process and I am sure that many people involved in the process will be awaiting the outcome with interest.

Framing the Foreshore and Seabed Issue

The foreshore and seabed issue has popped up in the media a few times over the last week.  The Prime Minister and Hone Harawira both commented on the issue at Waitangi. There has also been media comment relating to an analysis of the issue in a PR firm’s newsletter and a set of proposals that appear to have formed part of the discussions between iwi leaders and the Government, which were leaked last week.

Let’s consider the analysis in the widely-circulated newsletter first.  We should remember that this analysis is not a neutral and objective assessment of the issue.  It has been produced by a PR company that is run by Matthew Hooton, someone who is well-known for his close connections with the National Party.  So we should be aware that this newsletter has been produced with the intention of influencing the way this issue is framed.  We can certainly take with a grain of salt the commentary about how the National Party and the media shouldn’t be held accountable for the spread of misinformation, fear, and prejudice in the wake of the Ngāti Apa decision.  Those parties need to take responsibility for their own actions, just as the previous Government must take responsibility for passing the Foreshore and Seabed Act.  And the suggestion that Don Brash’s personal road to Damascus experience is due to the fact that he now has a better understanding of the issue, and is not instead due to changing political imperatives, is absurd.  But that assertion does assist with framing the issue as one that is confined to matters of process.  The problem is that there is more to the foreshore and seabed issue than that.

The denial of due process is certainly one of the most outrageous aspects of the Foreshore and Seabed Act.  But simply returning these matters to be addressed by the courts on a case by case basis will not necessarily provide the best, or a complete, resolution of all the relevant issues.  The Waitangi Tribunal found that maintaining the position that existed following the Ngāti Apa decision would certainly have been more consistent with Treaty principles than the policy that underlies the Foreshore and Seabed Act.  But the Tribunal also recognised that such an approach would inevitably leave some uncertainty around rights in the foreshore and seabed while cases worked their way through the courts.  The Tribunal did not consider this to be overly problematic, but the Crown argued that this was the primary reason why it considered that it was necessary to enact the foreshore and seabed legislation. The Tribunal also noted the strong preference of the claimants in that inquiry was for a negotiated solution, similar to the Sealord deal in relation to customary commercial fishing rights, and suggested that this would be the only approach that was fully compliant with Treaty principles:

In putting forward the options, we note up front that full compliance with the Treaty would require the Crown to negotiate with Maori and obtain their agreement to a settlement, as happened with respect to commercial fishing and Rotorua lakes. All the other options involve a compromise between Treaty principles, claimant preferences, and what the Government might regard as practicable. They are, to borrow Professor Mutu’s phrase, ‘least worst’ options.

The Ministerial Review Panel also noted that, along with the cost and uncertainty of leaving these issues to be resolved on a case by case basis a simple application of common law rules to Māori customary interests seems unlikely to assist with wider objectives in relation to the management of the foreshore and seabed:

But there would be disadvantages. It would mean that rights in the foreshore and seabed would have to be litigated on a case by case basis over a long period of time. Such a process is likely to be protracted, laborious and expensive and could result in an unmanageable patchwork of litigation. There is also the question of what legal rules should govern this process. We do not see that having rights in the foreshore and seabed decided by the Common Law rules of Native or Aboriginal or customary Title or by the precedents and approaches of the Māori Land Court would facilitate our overall goal of seeking a reconciliation between competing approaches to the foreshore and seabed.

If the problems with the Foreshore and Seabed Act are conceptualized as being only about due process, then it is certain that many problematic issues will remain unresolved.

While Matthew Hooton’s newsletter seems to have been adopted by the media as an unbiased explanation of the issues, the leaked proposals have been characterized as part of some Machiavellian scheme.  It seems as though the impression we are supposed to draw is that the extremists are trying to force these totally unacceptable ideas on the agenda.  But, I can’t quite work out why these suggestions are so unpalatable.  They are quite expressly premised on meeting, not only the interests of iwi and hapū, but also the Crown’s political imperatives.  The proposals are based on the idea that the replacement framework needs to:

• Be consistent with iwi/hapū world view that places taonga status of foreshore and seabed at the centre (i.e. environmental sustainability is the priority)
• Provide for tikanga to be an operative source of the law;
• Allow for flexibility for iwi/hapū specific aspirations/realities to be reflected;
• Increase the decision making role and autonomy of iwi and hapū;
• Not ‘look and feel’ like the 2004 Act;
• Satisfy the Crown’s political imperatives.

The leaked document identifies the Crown’s political imperatives as being:

• Rebalancing interests (a recognition that the 2004 Act struck an inequitable balance which should be redressed);
• Environmental sustainability
• Integration with existing statutory matrix
• Efficiency (not increasing overheads, costs or red tape)
• Appropriate economic development
• Certainty and clarity
• Protection of existing rights/interests (including access)

Now, I’m not saying that the proposals in the leaked document necessarily provide the most effective mechanism to address these interests, nor would I suggest that the current process for developing an alternative to the Foreshore and Seabed Act is ideal in the way that it seems to be centered around the Iwi Leadership Group’s concerns.  But, I am interested in the way that this document has been written off by the Government (and the media).  If the leaked document does not accurately reflect the Government’s interests, I’d like to know exactly what the Government’s interests really are.  And if the leaked document has captured the Government’s interests accurately, I’d like to know why the Government considers that its interests are not met by these proposals.