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Kua Pakoa Te Tai: The tide of support for Labour’s foreshore proposal reaches new lows

Rochelle Francis



Our Deputy Prime Minister has a very high opinion of himself. He considers himself intellectually superior to the distinguished judges, lawyers, historians and academics that compose the Waitangi Tribunal. Obviously their many years of collective experience grappling with one of New Zealand’s key constitutional documents – the Treaty of Waitangi – has failed to elevate them to Dr Cullen’s level of enlightenment.
A few days after the release of a scathing Tribunal report on the government’s foreshore and seabed proposal Dr Cullen defended his party’s position the best way he knew how, offensively accusing the Tribunal members of failing to understand the government’s proposal and implicitly rejecting the principle of Parliamentary sovereignty. Ms Clark jumped on board the next day, alleging flaws in the Tribunal’s reasoning. Labour’s knee-jerk reactions only get uglier as one after another of their worst fears materialise. Clark and Cullen’s weak retorts carried the definite ring of an early adolescent “you’re-not-the-boss-of-me” temper tantrum, while the Tribunal’s report was based firmly in reason and on settled principles of domestic and international law.
Despite Cullen’s accusations, the Waitangi Tribunal seem very clear about their place in the order of things, acknowledging that their “jurisdiction is recommendatory only, and that the power to govern resides with the Government.” The Waitangi Tribunal’s decisions are not binding, and as they see it “part of our role in the present situation [is] to ensure that the Government has before it all the matters it needs to know in order that its decision-making is fair. In the Waitangi Tribunal, consideration of what is fair is always influenced by the agreements and understandings embodied in theTreaty, but fairness in Treaty terms is not the only relevant norm. … [W]e think that wider fairness has relevance in the present situation.”
Fairness has not been attributed much value in this scramble to monopolise on the unrest generated following the Marlborough Sounds case. Any sense of fair play would have seen the someone – anyone – inform the general public of what is actually going on.
The Court of Appeal did not “overturn 125 years of settled law” (per Don Brash), nor did it give Mäori ownership of our beaches. The decision was actually quite un-exceptional, merely stating that the Mäori Land Court had jurisdiction to inquire into possible claims to customary title in the foreshore and seabed. That customary title, if found to exist, can then be converted into freehold title under the Maori Land Act.
This is where the fear of restricted public access arises, because freehold title could enable Mäori to exclude public access or even sell the land into private hands. However, this fear is largely unsubstantiated. Mäori have stated repeatedly that they have no intention to restrict public access to any areas where customary title can be established (which, incidentally, will be very difficult to prove). Lake Taupo provides a perfect example: freehold title to the bed of the lake is held by Mäori, but public access is preserved. This arrangement was the result of a process of negotiation and co-operation between iwi and the Crown.
A similarly satisfying outcome is completely possible in the current situation if the government will simply enter into real dialogue with Mäori. In fact, this is the essence of the Waitangi Tribunal’s recommendation. “All [the claimants] … said that their most preferred option was for the Government to agree to go back to the drawing board, and engage with Mäori in proper negotiations about the way forward. We agree that this would be the best next step, and that is our strong recommendation to the Government.”
Do you think we were in the minds of the Parliamentarians that gave effect to the atrocities that now form the basis for historical grievances under the Treaty of Waitangi? Do you think they stopped to consider the possibility that their actions might create problems for the generations to come? The Waitangi Tribunal is sending a clear message to our government that to proceed with their current foreshore and seabed policy will be a clear breach of the Treaty. It is the stuff that historical grievances are made of.
Clark and Cullen would do well to consider the generations to come when reviewing the Tribunal’s recommendations. The issues involved are highly complex and require a concerted effort by the media and our elected representatives to enable the general public to reach a basic understanding. It’s only fair that we are all given a chance to pursue a solution based in fact and reason rather than bequeath the cost of our generation’s ignorance to those yet to come.