Saturday, October 15, 2005

Dr Cullen and the tide of history

Deputy Prime Minister Dr Michael Cullen used the Michael King Memorial Lecture at Otago University on October 14 to set out his version of the history of the foreshore and seabed controversy.

He said right was on the side of the claimants, but the political cost was too high to let the original Court of Appeal decision stand. "In the intensely heated atmosphere of the time [letting the Ngati Apa case go on to the Maori Land Court] was not a real possibility and those who still argue so are refusing to recognise the depth of pakeha anger and alarm."

Dr Cullen's version of events may help other historians as they try to unravel political management from constitutional theory. "Already the facts have been substantially lost in a welter of ex post facto wisdom and rewriting of both history and the law, not least the legal decision which occasioned the need for a policy response."

To recap. In June 2003 the Court of Appeal granted an appeal by iwi from the top of the South Island which would have allowed them to ask the Maori Land Court to rule on whether they had customary rights to parts of the Marlborough Sounds which the local authority was busily leasing for mussel farms.

Existing case law, dating back to the 90 Mile Beach case in the early 1960s, was that Maori claims to customary rights had been extinguished by the assumption of sovereignty by the Crown, and subsequent legislation asserting Crown ownership of the foreshore and seabed.

In this New Zealand was at odds with comparable Commonwealth jurisdictions, which held that governments had to specifically extinguish such rights.

Each claim for customary rights still endured therefore needed to be tested in the courts.

"In arriving at this conclusion I am sure the Court of Appeal was correct and the seemingly settled case law wrong," Cullen said.

Where the problem arose for the Government was the way the Court of Appeal directed the case back to the Maori Land Court.

"If satisfied with those claims, [the Maori Land Court could] declare areas of foreshore and seabed to be customary land under the 1993 Te Ture Whenua Maori Act."

While the Government was confident proving title would be a hard ask in the High Court - "the tests to be applied would be the fairly rigorous and reasonably well established common law tests," is the way Cullen put it - it was not so clear how much leeway the Maori Land Court would have under the 1993 Act.

If such coastal areas were declared Maori customary land, it would be a relatively simple procedure to convert them to freehold ownership.

"For the Government, the situation was an impossible one. Already the Treaty settlement process was causing deep concern amongst many pakeha, despite the fact that it was proceeding in a largely smooth fashion and Maori claimants were usually showing remarkable moderation. Now the nation had all but convinced itself that very large chunks of the foreshore and seabed were about to pass into private ownership. Maori were pleased, by and large. Pakeha were in a state of incipient revolt, by and large," Cullen said.

"The issue was further complicated by the differing views of what ownership meant. For pakeha, it did imply the ability to buy and sell, to exclude and to exploit. It raised deep atavistic feelings about who we are as a people and what pakeha believed (rightly or wrongly) they had escaped from in the old world. It was like some new Norman yoke being imposed (even though it is Maori who in this case actually come closer to filling the historical role of the Anglo-Saxons).

"For Maori, ownership was more about a mutual relationship of belonging between the people and the land. What I found emotionally scarring about all of this was that the Government ended up trying to seek a way of crystallising the actual status quo, as it were, on the ground while many Maori considered that we were engaged in another raupatu or land confiscation.

"The Government could have left things to the Maori Land Court. But, in the intensely heated atmosphere of the time that was not a real possibility and those who still argue so are refusing to recognise the depth of pakeha anger and alarm.

"Moreover, such a process would have been dragged out over many years creating massive uncertainty about the legal status of foreshore and seabed. It certainly created an opportunity, but with no security."

Cullen said the political process was fraught, as the National Party "early on determined that its interests continued to lie in playing the race card and claiming the legislation gave everything to Maori. The Maori Party was formed and claimed it took everything away from Maori."

Cullen seemed to offer a hint the Foreshore and Seabed Act could be changed in future.

"Much will, I think, depend on the outcome of the current discussions and pending Maori Land Court cases," he said.

Those discussions are with the Ngati Porou from the East Coast and the neighbouring Te Whanau a Apanui, "which I believe will be successful. They will demonstrate that there can be real substance to the Crown’s recognition of areas where there are enduring and ongoing Maori interests in the foreshore and seabed while preserving the rights of the population at large (including it needs to be said, Maori who are not tangata whenua in those areas)."

An interesting read. Thanks to Te Karere Ipurangi for catching my old friend John Gibb's original Otago Daily Times story.


Blogger alexanderbisley said...

kia ora adam,

my name is alexander bisley, i am the chief film critic for the dominion post and a direct descendant of nga puhi's patuone.

am finding your blog excellent. keep it up.

10:24 AM  
Blogger t selwyn said...

That bloody Cullen is just unbelievable. Pakeha veto - loud and clear. You notice that there was never any alternative. It had to be confiscation no matter what - to protect Pakeha self-esteem? Norman yoke!? "they had escaped from in the old world."-? Ohh the oppression!

"For Maori, ownership was more about a mutual relationship of belonging between the people and the land." - That old gem! Yeah - Maori don't really own anything the sentimental natives merely have feelings for things. Whereas Pakeha have actionable expectations of government!? This is the racist sort of crap that is just typical of these ursurpers.

And then: "

And the government's lack of communication - they didn't even try - their first reaction was start Maori-bashing, start confiscating, start behaving as though only the red neck votes counted for anything. What an utter failure of leadership - failure to be a New Zealander. Pakeha first - New Zealander second.

What the government thinks, what the government interprets as being what a racist, paranoid, uninformed oik would want is what the government will do - is that leadership?

And refusing to acknowledge that he was playing the race card when he criticises National for it.

I'll have to read the whole thing. Thanks for the link.

1:20 AM  

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