Speech to the ARENA Forum on the Seabed and Foreshore
Tonight I want
to begin with a challenge to our supposed leaders who claim we are now mature
enough to become a republic, a post-colonial society, but whose actions over
the seabed and foreshore reflect the most crude and instrumentalist practices
of an old colonial state.
You don’t become
a post-colonial society by pretending that colonization didn’t happen.
You make that
transition by facing the demons of the past, you take responsibility for its
enduring legacy, you recognize the mana and rangatiratanga of those you have
dispossessed and you work out new ways forward that are constructive and just.
I want to focus
on three practices in relation to the seabed and foreshore that show just how
far we have to go:
First, the use
of Pakeha law to confiscate resources and deny authority of iwi and hapu, in
the same way it has been used for the past 164 years.
Second, the
hypocrisy of claiming the te Tiriti o Waitangi confers no binding rights on
Maori, while claiming that private property rights are sacrosanct and
negotiating international treaties that require the government to protect the
rights of foreign investors and corporations over those same resources in the
form of beachfront sections, ports, mussel farms or marinas.
Third, the
appeals by government and opposition politicians to a form of nationhood that
fuels white settler prejudices without trying to educate, inform or foster a
reasoned debate.
Those who
believe we can simply pass a law and that will make Maori assertions of tino
rangatiratanga go away, need to look past the next opinion poll, read a bit of
history, learn a bit about their country, reflect on the turmoil they are in
process of fomenting and ask what responsibility they are prepared to take for
the mess they are creating for the future.
First, the law.
As my poor
students learn by the end of their first year, Maori have been stripped of what
is theirs not primarily through war, but through law. Today, when that
authority has literally been forced to the margins - a strip of wet patch -
that ground is being confiscated too.
All in the name
of the ‘rule of law’. Francis Fenton, land speculator and magistrate, described
it most aptly when asked by Governor Gore Browne to write an explanation of the
laws of England for Maori back in 1852. He
noted that the Englishman had to carve for himself a path through the forest.
Maori were more fortunate:
A wise and generous people have settled in
his land; and this people are willing to teach him and to guide him in the
well-made road which themselves have travelled for so many generations; that
is, in the path of the perfected law - in the path by which themselves have
attained to all the good things which they now possess; wisdom, prosperity,
quietness, peace, wealth, power, glory and all the other good things which the
pakeha possesses. Let there now be no doubt nor hesitation, but be patient and
earnest and follow the direction of those who have been to shew them the right
and the finished path.
There was also a
warning - should Maori seek to carve out their own path through the forest,
before long they would see the error of their ways.
These ‘perfected
laws’ legitimated the raupatu, the imprisonment without trial of the fencers,
ploughers and prophets of Parihaka, banned tohunga, and subjected Maori to
different voting rules for a century.
They also
legitimated the seizure and redistribution of the best resources to our
forebears from which many of us still benefit today, leaving only the scraps.
Of course this
is not just old history. Many of remember, or were part of, the occupations led
by Eva Rickard at Raglan, by Waatara Black and Nganeko Minhinnick at Awhitu,
the Hawke’s and others at Takaparawha. The perfected law was used to charge
them with trespass and to confer ‘legal title’ on those were in illegal
occupation.
When the
pressure built to boiling point in the early 1980s, with protests at Waitangi,
during the Springbok Tour, the He Taua attack on the engineering students, the
law took sides again.
Then, as the
Hikoi descended on Waitangi in 1984 - when there was a real risk of wide spread
Maori rebellion that included the seemingly conservative kaumatua - we were
told, the colonial leopard had changed its spots.
The Waitangi
Tribunal would provide redress. The Treaty would be recognized as a
constitutional document. The state sector would become bicultural. Long
standing grievances would be addressed. We would mature into a post-colonial
nation proud of our bicultural heritage.
I have described
this as a classical example of passive revolution. Dissent on the streets that
threatens and is beyond the control of the state is seduced by promises of
redress into the arenas that the state can control, and thereby defused.
Accompanying
this, of course, was the next round of confiscations – corporatization,
privatization, creating property rights in fish. Those battles were fought out
mainly in the legal arena.
Something interesting
happened. The courts were facing their own challenges. Their old crude
hostility to Maori changed subtly in what Sir Robin Cooke called ‘a subtle
cultural repositioning’. Their findings on the fish, forests, coal,
broadcasting appeared to favour Maori only for the Labour, then National,
governments to take away those gains through legislation.
But appearances
are deceptive. It’s true that the judges created more space for Maori than had
existed previously. But these were still the Queen’s judges. Their
interpretations of te Tiriti affirmed the Crown’s sovereignty and the right of
Parliament to pass whatever laws it will.
When the price
became too high, and the personnel and climate changed in the early 1990s, they
‘repositioned’ again, and the courts and the government came back into line.
We have seen
this relationship diverge again over the seabed and foreshore. The Ngati Apa decision was creative. It only
occurred because judges in the Maori Land Court and the Court of Appeal were
prepared to take the risk and challenge the prevailing precedents.
But in doing so
it still relied solely on the tools of colonial law, arguing that more recent
precedents were inconsistent with much older common law and the Maori Land
Court did have the right to determine title to the wet patch separately from
the adjoining dry land.
True, it said
that title to the foreshore and seabed should be determined according to
tikanga. But it also said that any such
rights would exist only until the Crown extinguished them. While in places it
said that required consent, the reality is that the courts will not interfere
with and overturn any law passed by the Parliament that confiscates any rights
that are seen to exist according to tikanga.
What does this
tell us? Two things.
First, even
though the system is rigged and the government knows it has the power to
legislate away any entitlements the court might grant, it has decided to
intervene before that court has the chance to decide. This has to be a
strategic judgment call. Presumably it believes that anti-Maori hostility will
increase if the court upholds any right to the foreshore and seabed, whipped up
successfully by opposition parties. And that Maori opposition will be even
greater if a right has actually been conferred, then taken away.
Second, the
solution for Maori is not simply to let the legal system run its course. There
are no guarantees of what the courts will find - or that the government will
not legislate away the outcome as it has done so many times before.
There might be
some tactical advantages. A more explicit definition of the relationship of
those with mana whenua to the foreshore and seabed could pacify concerns about
public access and provide a much more constructive basis for resolving the
issue. It might even prompt the government into negotiating a new framework.
But why should a
court hearing be necessary to achieve that? And why should the burden of proof
fall on those whose mana whenua the Crown is disputing? There is, in this, the
germ of a way forward - if there is a political will to go there.
The second
practice I want to highlight relates to treaties. In the 1980s and 1990s the
Crown’s attitude to te Tiriti also underwent a subtle cultural repositioning.
It moved from being a historical relic and a simply nullity to a constitutional
foundation stone. The rhetoric changed. But the commitments made in 1840 were
considered to be no more binding on the Crown than they had been before, except
if they were included in statute - and then they were redefined to ensure the
Crown retained power.
The assertion of
sovereignty remained unqualified. This included the power to define what te
Tiriti meant and the extent to which any authority over resources that were
confirmed to iwi and hapu would be recognised.
Contrast that to
the private property rights that are conferred under colonial law. Those are
sacrosanct. Not only for legal reasons, but because interfering with them would
provoke a crisis of investor confidence. And not just any investors. Security
of property rights – conferred under the rule of law – is essential to maintain
international investor confidence.
To deepen the
paradox, the government seems quite prepared to negotiate international trade
treaties that guarantee the rights of foreign firms to ‘establish a presence’
in the country. That includes, for example, in the tourism sector - a rather
important context when we are talking about the seabed and foreshore.
International
investment treaties guarantee foreign investors that governments won’t take
measures that reduce the value or profitability of their venture. Investments
might include ports, licences to run mussel farms, marinas, water sports
resorts on the coastline.
And these treaties have teeth. They are
internationally enforceable. The government is bound. So recently negotiated treaties confer enforceable rights on
international investors while te Tiriti remains unenforceable. When the two
conflict, the international investors will win.
The more of
these treaties the government signs, the less room there is to undo the
injustices of the past - or take any other measure that might breach the rights
they guarantee to foreign investors either. Moreover, the interests of
international capital come to pose a potent threat to the rights of everyone to
access and enjoy the foreshore and seabed. That threat is conveniently being
ignored - as Brian Rudman keeps pointing out in the Herald in relation to the
pending sale of Auckland’s marinas.
Defeating these
agreements is therefore in all our interests.
The THIRD
feature relates to ‘nationhood’. It’s an interesting concept. Don Brash’s
vision is quite explicit - New Zealand is a nation that has no place for Maori.
I only want to say three things about his speech.
First, by
showing such utter contempt for all Maori he is likely to strengthen the
determination of even the most conservative to defend their mana - posing a
much more defiant Maori challenge to his one-nation vision, as they did through
the Hikoi in 1984.
Second, I trust
that he will take personal responsibility for whatever social carnage results
if he continues this provocation, as do those of his MPs who - unlike Georgina
te Heu Heu - are too self-interested or gutless to disown their National Party’s
policy.
Third, if that’s
what Brash is doing to Maori, we can expect a renewed assault of new right
extremism directed towards unions, women and any public entity, including the
universities.
Labour is more
subtle. Their MPs have a role to play, so long as they know their place - which
is at most abstaining, which effectively means allowing the confiscation to
proceed.
It is equally
disturbing that, when it comes to international precedent, Labour align
themselves on the foreshore and seabed with those other paragons of colonial
sensitivity - Australia and Canada - and condemn Fiji.
Fiji has its problems. But rather than
peremptorily dismissing its proposal to recognize indigenous rights to the
foreshore and seabed, it might be useful to debate the approach they have taken
there. Any ideas on how to provide some commercial benefits to the traditional
owners, while ensuring rights of access to the foreshores, would be a useful
contribution.
The Fiji model
may not be appropriate. But exploring the details would at least help us to
engage with the issues.
That includes
the potential for Maori economic development initiatives involving the seabed
and foreshore to occur within a framework that is culturally appropriate - and
to avoid the debacle of market-driven commercial models such as those imposed
when Labour, then National, confiscated the fisheries.
On the one hand
Maori are condemned for ongoing dependency and dissension over how to divide up
the commercial rents when they are forced into the market model. On the other
they are denied access to the resources to engage in genuine development
projects that can provide a source of economic and spiritual sustenance.
I wonder how
many of the Labour caucus consider themselves supporters of the Palestinian
struggle to reclaim their homeland, and whether they understand the parallels
to Aotearoa. It is a connection that I suspect would never have occurred to
them, and which others prefer not to think about.
Are we, as
Tauiwi, really so immature that we cannot discuss these issues? And if we
don’t, but Maori do, how will be cope with being left behind in the wake of
responses that we have been left ill equipped to understand? It bodes ill that
the only mainstream programme that presents these views, Mana Report, has been
shortened and put back to 6.20 a.m. (In passing, I’d encourage you all to
complain to the CEO of Radio New Zealand demanding that the time slot and
length of Mana Report are restored.)
In this
environment, the government’s proposed Treaty information process seems
destined to fulfil a propaganda role, rather than a constructive contribution
to informed debate.
We have a
government whose policies are guided by opinion polls and focus groups - an
intrinsically bankrupt approach to nation building. Indeed, all the major
political parties seem addicted to it and none shows any inclination to break
that addiction.
So what to do?
In the short term, it is essential to campaign against the current proposals.
For ARENA’s
part, we are running a post card campaign. The first 5000 have all but gone -
the remainder are there for you to fill in and take with you. There will be
plenty at Waitangi, and you can order more from Leigh Cookson at the ARENA
office in Christchurch.
We have organized
meetings in Christchurch and Wellington where Moana Jackson has spoken.
And the website
has a great collection of articles and information - although it’s a bit
outdated at present thanks to a hacker who crashed it, and we’re in the process
of rebuilding.
Others have been
organizing action and education too. It was really good to hear the Human Rights
Commission making an intervention, and raising the concern that the mana of the
Tiriti relationship must lie at the heart of whatever happens next on this
issue.
There needs to
be some thinking about appropriate responses once the legislation is
introduced.
But we also need
to think about the longer term challenges that face us. The ‘subtle cultural
repositionings’ of the 1980s occurred because of a mass campaign of activism
and education involving Maori and Tauiwi.
Together, we
have to create that environment again, and not let it get sucked into a passive
revolution.
Creating a
genuinely post-colonial society is not simply a struggle to be waged by tangata
whenua alone. It is also the responsibility for others of us who call this
country ‘home’.