The Foreshore and Seabed; Democracy and opening up the Debate

I had occasion this week, to read a definition of democracy, from Otilia Lux de Cojti, of Maya Kiche ancestry, and the former Minister of Culture in the Guatemala Government. She said:

We, indigenous men and women, are peaceful and respectful and seek harmony not only between human beings but also with other forms of life and elements of nature. For indigenous peoples, consultation, participation and consensus are of the greatest importance in relation to decision-making - in order that the decision of the majority will prevail as a democratic principle. Indigenous peoples pin their hopes on the future. They would like democracy to be inclusive, representative and inter-cultural, in other words, respectful of differences.

I contrast that definition with the reaction in April 2006, from Government, to the critical report from the United Nations Special Rapporteur for Indigenous Issues.

That report from Professor Rodolfo Stavenhagen highlighted the fact that neither the inherent rights of Maori or traditional governance bodies have ever received constitutional recognition. It recommended further, that the Foreshore and Seabed Act should be repealed or amended by Parliament.

In response the Labour Government let rip with a stream of comments rejecting the report, describing the UN committee as having an “ill-odour”; the report as being ‘Ghost-written’, ‘error ridden and fundamentally wrong’; the people that contributed to the report were "entrenched in a grievance mentality”; the Rapporteur himself had a ‘pre-conceived agenda’, choosing only “to listen to the disgruntled, resulting in negativity” and so on.

Fast-forward to August 2007; when another report from the United Nations is issued, this time from the Committee on the Elimination of Racial Discrimination (CERD).

The CERD committee identified a discrepancy between what the Government says the situation is and what the people say in relation to the Foreshore and Seabed Act, reiterating that committee’s original 2005 recommendation that :

“a renewed dialogue between the State party and the Maori community take place with regard to the Foreshore and Seabed Act 2004, in order to seek ways of mitigating its discriminatory effects, including through legislative amendment where necessary”.

For the second time, a United Nations organisation has faulted New Zealand on the Foreshore and Seabed law.

And just as with the earlier report of March 2005; the Government’s response in August 2007 was equally dismissive. The Prime Minister rejected the validity of the criticism saying it came from a body which didn’t have the status of the Security Council of General Assembly, a Committee which “is not populated by ambassadors or even representatives of countries”.

Third strike unlucky. Scratch the record through to less than a month ago, when New Zealand was one of four countries, that isolated ourselves from the 143 countries that signed the United Nations Declaration on the Rights of the Indigenous peoples – a document that took twenty-four years to get through to a final mandate.

The Labour spin machine issued lines, as voiced by Nanaia Mahuta and Parekura Horomia, that the vote against indigenous rights was because the international declaration, was “incompatible with New Zealand democratic processes and domestic legislation”.

I have travelled down this tedious path of “he said, she said, about the foreshore” for a particular reason.

In three consecutive years, the Government has repudiated the claims, and attacked the credibility of three separate international procedures for defending indigenous rights.

Their affront against the international human rights framework, provoked by the Court of Appeal decision of Ngati Apa, has resulted in a wholesale abuse of spokespersons, iwi leaders, indigenous rights campaigners, United Nations expert committee members; political parties particularly the Maori Party, the judiciary, academics, social scientists, and in fact any New Zealander who has challenged the democratic status of our nation.

I want to make it quite clear – that in seeking the expertise of the international observer, Maori have been following a tradition which began even before the land wars of the 1860s.

Maori have sought to give primacy to Te Tiriti o Waitangi in an incredible array of parliamentary petitions, court cases, and numerous pilgrimages and pleas to Buckingham Palace and Westminster, both this century and the last; including travelling to Geneva to the League of Nations, which was the forerunner of the United Nations.

The question is, what do we do about this ongoing denial, the pervasive and rigid resistance to indigenous, international reason?

One lawyer, Robert Kirkness, suggested in a paper last month, that Maori should take advantage of Section 20L of the Human Rights Act in this country, to seek relief through the Act, for a declaration that the Foreshore and Seabed Act is inconsistent with the right to freedom from discrimination affirmed in the Bill of Rights.

Such inconsistency has been confirmed by the former Attorney General, Margaret Wilson, who declared that the discrimination evident in the Foreshore and Seabed Act was "justified". In other words, the fact that Maori owners should be legislatively forbidden to benefit from their own foreshores and seabed was justified - while "other owners" are able to benefit, without any such restriction laid upon them.

We in the Maori Party, have been committed to our Private Members Bill which seeks to repeal the Foreshore and Seabed Act. Yet, our Bill is currently languishing on the order paper, waiting for the day to come when the debate can happen.

We believe that the very principle of stone-walling a High Court Decision to allow Maori to legally test their claims to ownership provides fertile ground for wide-ranging debate around property rights, the rule of law, access to justice and the very nature of rights, responsibilities and freedoms.

The Federation of Maori Authorities has pointed out that the inevitable and intractable opposition of Labour to even entertain the possibility of debate is in stark contrast to their support for two other Bills, which FOMA suggested “have the potential to damage race relations and Maori potential”.

These Bills, which have been supported by Labour, are the infamous Bill to delete Treaty principles from legislation; and another NZ First doozy, the bill to supposedly remove conflict of interest from the dual jurisdictions of the Maori Land Court and the Waitangi Tribunal – a Bill which applies a separate standard to Māori judges, to Māori courts, and, therefore, to tangata whenua, from the standard it applies to the rest of the population.

If it was not exactly rocket science to know that the Government would abstain from its democratic and Treaty driven responsibilities to act in good faith with Maori – and enable the debate to take place; there was always a real possibility that perhaps any opposition parties would show courage in at least allowing the Foreshore and Sebaed Repeal Bill to progress to the Select Committee stage.

But as the Dominion Post editorial of 20 July concluded, John Key took a “political misstep” in failing to show leadership in encouraging participation in the very nature of democratic debate.

It is somewhat fascinating to think of National’s failure to act independently in the Foreshore and Seabed Bill, when one considers their stated advocacy for freedom of association and speech as the key planks of democracy in the context of the Electoral Finance Bill.

In a speech to the National Press Club in August, John Key stated:

“a healthy democracy requires the active participation of citizens in public life and in public debates. Without this participation, democracy begins to wither and becomes the preserve of a small, select political elite”.

The National Leader even went as far to use the reaction to the Foreshore and Seabed Act as an example of one of the most powerful examples of freedom of political expression, going further to suggest that:

“Politics is a contest of ideas, and ideas should be publically discussed. Ideas should be tested and ideas should be criticized”.

Fighting words indeed, but National – like Labour – has already gone on the public record, preventing the option of even opening the door to let the korero happen.

The Foreshore and Seabed Act was one of the most controversial and traumatic events in the area of Maori rights, that we have seen in preceding decades.

What would have been so wrong in allowing an opportunity for open, healthy dialogue to occur, to consider the implications of the Ngati Apa decision, the consideration of customary rights in law; the threshold that would need to be attained to establish the maximum potential right; the human rights dimensions of the legislation?

What would have been so wrong in holding up to critical scrutiny, the charge of discrimination; that Maori will be deprived of any customary rights anticipated at common law following the Ngati Apa case – while other owners of specified freehold interests do not lose any beneficial interest in their property?

What would have been so wrong in allowing contestable opinions to be heard, including analysis of what Paul McHugh suggested was the likely outcome of the Foreshore Act, that it would, and I quote:

“deliver coastal Maori into an intense and probably debilitating legalism”?

What would have been so wrong in contrasting the fortunes of Ngati Porou, Te Whanau a Apanui and Ngati Porou ki Hauraki as they have become involved with the Foreshore and Seabed Act 2004, and being able to assess whether they have, as Dr Cullen suggested in questions in the House, achieved an outcome “which will ensure there is fairness and justice for all?”

What would have been so wrong in asking the questions – is it discriminatory to remove the ability of Maori to obtain the remedy available for the expropriation of private property rights under the Public Works Act, by only giving Maori an opportunity to negotiate for “redress” from the Crown – while that same Act continues to apply to other owners of a specified freehold interest?

I have deliberately focused on the aspects of legislative interest in this address given the focus that the Auckland University School of Law has allocated to the foreshore and seabed throughout this entire week.

And I want to place on record, my congratulations to the Law Faculty, for opening up your doors, your eyes and ears, to the possibility for meaningful and positive debate around such a contentious time in our nation’s history.

The abuse of the democratic process led by Labour and supported by National has failed to respect what indigenous peoples seek - consultation, participation and consensus as being of the greatest importance in relation to decision-making.

It has failed to enable a genuine conversation that Maori and non-Maori can engage in to demonstrate our special relationships with the coastal environment.

Angeline Greensill, in the New Zealand Geographer, captures this expression in her advice that:

“The Foreshore and Seabed Act disrupts the wairua or spirit of place, clutters the pathway and impacts upon relationships that have been nurtured by whanau and hapu over time”.

This act of disruption has not, however, succeeded in suppressing the spirit of defiance that New Zealanders from all walks of life continue to uphold in challenging what we all know to be wrong.

We in the Maori Party encourage the belief, as Otilia Lux de Cojti expressed so well, that democracy can be inclusive, representative and inter-cultural, in other words, respectful of differences.

We must all work together, in protecting more vigilantly the opportunity for the debate to take place, for political views to be expressed, for the chance to restore pride in the New Zealand democracy. It is an investment in the very future of our nationhood, the hope for Aotearoa.