Kōtuitui
New Zealand Journal of Social Sciences Online
Changing the game plan: the Foreshore and Seabed Act and
constitutional change
Maria Bargh
Maori Studies
Victoria University of Wellington
PO Box 600
Wellington, New Zealand
Abstract The Foreshore and Seabed Act 2004 caused
many
New Zealanders grave concern. In this article I suggest that a number
of the Government’s actions since the passing of the Foreshore and
Seabed Act bring into question several of its central claims for
legislating and the subsequent overriding of Tiriti o Waitangi and
human rights laws. As a result, I argue that the inadequacy in our
constitutional arrangements requires a change of approach—a new game
plan: constitutional change.
The second part of the article examines the work of the Maori
Party. Its actions in encouraging an increasing level of Maori
politicisation away from expression outside the State and towards the
electoral process, arising out of opposition to the Foreshore and
Seabed Act, constitute another changing of game plans.
The article concludes by emphasising how the Foreshore and
Seabed Act has encouraged us to take a longer term vision in order to
foster more positive relations, a vision that encompasses the need for
genuine constitutional change based on respect for human rights and Te
Tiriti o Waitangi.
Keywords Foreshore and Seabed Act 2004; Maori politics;
constitutional change
INTRODUCTION
In June 2003, when the Government announced its intention to
legislate regarding the foreshore and seabed, two of the Government’s
central claims were that they sought to protect the foreshore and
seabed for “all New Zealanders” and that they were treating all New
Zealanders in a fair and equal manner within the legislation and
according to the procedures of parliament. In this article, I will
firstly examine a number of events which have occurred since the
passing of the Foreshore and Seabed Act 2004 and which I argue bring
into question the Government’s claims surrounding the foreshore and
seabed legislation.1 Having the
Government’s actions characterised as breaching Te Tiriti o Waitangi
and national and international human rights laws and standards suggests
a level of inadequacy in our constitutional arrangements. It is in
respect of this inadequacy that a change in game plan appears now to be
required. When players change the game plan in rugby they completely
change the tactics of their play. I suggest that given the inadequacies
of our current constitutional arrangements, a change is needed to
provide for constitutional development and to adequately protect Te
Tiriti, human rights law, and subsequently Maori.
The second part of this article discusses the Maori Party. In
particular, I will examine the ways in which the Maori Party is
supporting and directing an increasing politicisation of Maori
communities away from strategies based outside the State towards those
associated with the electoral process. And it is these efforts which
constitute the second change of game plan emphasised in this article. I
argue that the Maori Party is encouraging a change in game plan both to
Maori (to redirect politicisation away from activities outside the
State to the electoral process) and to non-Maori politicians to halt
actions which continue to normalise racism and injustice.
This article concludes by suggesting that the Government’s
breaches of Te Tiriti and human rights, and the Maori Party’s
encouragement of a change of game plan for Maori, offer ample and
persuasive reasons of the need for constitutional change (as well as
some forms which such change might reasonably be expected to take).
THE FORESHORE AND SEABED ACT
In the months after the Foreshore and Seabed Act came into effect in
2005, there were a series of events which raised doubts about two of
the Government’s claims surrounding the legislation: first, the claim
of protection for all New Zealanders, and second, that of fair and
equal treatment. The claim to be seeking to protect the foreshore and
seabed was articulated quite specifically and is included in the
introduction to the Act itself (Foreshore and Seabed Act 2004, 1: 3).
The second claim of fair and equal treatment was a broader assertion
regarding the conduct of the Government and was embodied in key
statements made by the Prime Minister (Helen Clark), the Deputy Prime
Minister (Michael Cullen), and the then Attorney-General (Margaret
Wilson).2 This broader claim to be treating
everyone fairly and equally also tied back to the argument in other
ways, including reinforcing insinuations made by the National Party
leader Don Brash that Maori are somehow receiving “special privileged
treatment”.3 There are, of course, many
other events and inconsistencies regarding, for example, certainty and
public access, which we could investigate in relation to the foreshore
and seabed legislation.4 However, due to
space constraints, this study limits itself to the claims of protection
and fair and equal treatment.
The path to the Foreshore and Seabed Act itself began in June
2003 when the Court of Appeal ruled that the Maori Land Court had the
jurisdiction to hear claims related to the foreshore and seabed.
Shortly thereafter, the Government announced that it needed to
legislate to protect the foreshore and seabed for all New Zealanders.
The Act was passed in November 2004 and came into effect in January
2005. The Act vested the foreshore and seabed in the Crown and
established a system under which Maori could take claims regarding
customary rights to the Maori Land Court and territorial rights to the
High Court. However, under the Act, these rights and remedies are of a
radically lesser kind than would have been possible previously.5
The following series of events draw into question and make
problematic the Government’s claims of legislating in order to
“protect” the foreshore and seabed. It is important to note that they
are part of a broader and long-standing government approach which seeks
to continue privatisation and corporatisation, while encouraging a
greater role for the market mechanism in areas of the community
previously governed in other ways (Bargh 2002; Hindess 2002). These
particular examples, provided below, highlight the precise difficulties
regarding the extent and limits of kawanatanga with regard to resource
management and development, which I argue require addressing.
In early March 2005, information began to circulate about
applications from national and international companies for licenses to
explore and mine the ironsands from Raglan to Kaipara Harbour (Thompson
2005). Some mining had taken place in small sections of those areas,
but the new applications were far more extensive and would involve
mining and exporting huge quantities of ironsands. A number of
environmental groups have argued that this kind of mining would have
potentially devastating consequences for many species, including the
Maui dolphin which lives in those waters and whose population now
hovers at 100 (Thompson 2005).6
Also in March 2005, Steve Maharey (Minister of Research,
Science and Technology) and Pete Hodgson (Minister for Land
Information) announced a project to survey the ocean within our
Exclusive Economic Zone and out to the edge of the continental shelf,
which the Government has now submitted to the United Nations for
inclusion in New Zealand’s Exclusive Economic Zone (Torbit 2006). The
survey, they announced, was for scientific and economic purposes
(Maharey & Hodgson 2005). Steve Maharey stated that:
There has been a huge increase in
the income New Zealand generates from the oceans over the last decades
… [and] there is potential for much greater increases in wealth … in
the future … Future possibilities for new wealth that could be derived
from the oceans are diverse. These opportunities could be in the
biotechnology area; new species yet to be discovered could provide
routes to novel substances. Or the microbiological community under the
sea could provide new opportunities for a range of industrial and
pharmaceutical processes. The mineral wealth could also provide
considerable opportunities. (Maharey & Hodgson 2005)
In April 2005, it became public that the New Zealand Treasury
was considering how the foreshore and seabed should appear in financial
statements, and therefore how it was to be valued for the purposes of
tendering out sections (for oyster farms or other exploitation)
(Crewdson & Milne 2005).
In July 2005, Crown Minerals made public its decision to allow
Seafield Resources Ltd to conduct gold exploration of the seabed on the
West Coast of Te Waipounamu (South Island). The exploration is not
simply of the seabed, as defined from the low-water mark to the edge of
New Zealand’s Exclusive Economic Zone, but also beyond towards the edge
of the continental shelf (Madgwick 2005).
With these events in mind, it is appropriate to consider the
Government’s specific claim that it needed to legislate to “protect”
the foreshore and seabed for all New Zealanders. It is difficult to
imagine how creating a system to exploit the foreshore and seabed for
monetary gain, including increasing mining of the foreshore and seabed
(activity which is generally destructive of the environment and of
ecosystems), might contribute to a concept of “protection”. It is clear
from these projects that the exploitation of the foreshore and seabed
in this way is not a random and unexpected development but rather part
of a broader agenda of privatisation, commercialisation, and extension
of the market mechanism, consistent with policies which the Government
has pursued for some time and which played a key role in its unwavering
intention to legislate.7 It also continues
a much longer series of tensions between the Crown and Maori regarding
the ownership of resources and how the benefits are to be distributed,
highlighting the need for constitutional clarity on these points.
The second set of events, as noted at the outset, brings into
question the broader government claim that the Foreshore and Seabed Act
treated everyone fairly and equally. Margaret Wilson, while serving as
Attorney-General, analysed the Foreshore and Seabed Bill to assess
whether it was consistent with the Bill of Rights Act 1990. She argued
that while it appeared that the Act discriminated against Maori, this
was justified and therefore acceptable under section 5 of the Act,
which allowed for discrimination if it can be “demonstrably justified
in a free and democratic society” (Bill of Rights Act 1990).8
Prime Minister Helen Clark also clearly stated her view that the
legislation was in her mind fair and equitable. In a letter to members
of the community, Helen Clark explicitly stated: “the legislation is
fair” (Clark 2004).
By contrast, however, after eight months of processing an
application filed by Te Runanga o Ngai Tahu, the Treaty Tribes
Coalition, and the Taranaki Maori Trust Board, the United Nations
Committee on the Elimination of Racial Discrimination (CERD) released
its report in March 2005, finding that the Foreshore and Seabed Act
2004 “appears … on balance to contain discriminatory aspects against
the Maori” (United Nations Committee on the Elimination of Racial
Discrimination 2005). In the kind of diplomatic language that is
expected of the United Nations committees, which includes acknowledging
the New Zealand Government’s efforts, CERD urged the Government to
resume a dialogue with Maori to reduce the discriminatory effects,
including thorough legislative amendment (United Nations Committee on
the Elimination of Racial Discrimination 2005). In response, Helen
Clark and Michael Cullen made statements suggesting that those on the
Committee were not qualified to make such a ruling, and dismissed the
tribes who took the case (cited in Erueti & Charters 2005). Such
behaviour from the leading representatives of the New Zealand
Government does not assist in strengthening what could be viewed as the
New Zealand Government’s somewhat declining compliance with
international human rights requirements.9
In June 2005, the Federated Farmers launched a campaign during
a protest outside Parliament against proposals to introduce a Bill on
public access to waterways. Cabinet had been considering a Land Access
Strategy since mid-2004 and had been expecting to introduce legislation
prior to the election (Sutton 2004). A week after the small Federated
Farmers protest at Parliament and the blocking of access across their
land, Associate Rural Affairs Minister Hon. Jim Sutton announced that
introduction of the Bill was to be postponed. In a press statement,
Sutton argued that given the protests against the proposal, the
Government was persuaded that it should pause the introduction of
legislation and re-enter negotiations with “major stakeholders in
search of greater consensus” (Sutton 2005). It was also revealed that
the Government had agreed in principle to pay compensation for any
public access arrangements (Berry 2005).
This treatment of protesting farmers stands in sharp contrast
with the treatment of those opposed to the Foreshore and Seabed Act,
who participated in numerous protests including the Hikoi to
Parliament; who wrote and presented submissions; and who attempted
peacefully through various events to halt the foreshore and seabed
legislation. At no point did the Government consider not legislating on
the foreshore and seabed issue, despite overwhelming opposition
throughout their supposed “consultation” hui around the country,
opposition in the streets, and also opposition in the form of 94% of
the approximately 4000 submissions to the select committee considering
the Bill (Fisheries and Other Sea Related Legislation Committee 2004).
The alternatives put forward by hapu and iwi representatives—that is,
covenants to guarantee public access and non-saleability—were never
given due consideration by the Government.
In addition, it may be noted that at no point did the
Government agree to pay compensation for the effective expropriation of
the foreshore and seabed or for denying Maori the legal capacity to
bring particular cases to court. Under the Foreshore and Seabed Act, if
Maori groups achieve a favourable ruling regarding territorial
customary rights in the High Court, they can enter into negotiations
with the Attorney-General and the Minister of Maori Affairs, including
discussions on possible compensation, but there are no guarantees and
no mechanisms for appeal if negotiations break down (Foreshore and
Seabed Act 2004). Given the huge power inequalities in current
Crown-devised Treaty of Waitangi settlements between iwi and the Crown,
it can reasonably be assumed that negotiations regarding the foreshore
and seabed would experience those same inequalities.
It is important to acknowledge the very different
circumstances in each of these cases. Arguably, in the foreshore and
seabed case, the Government was under pressure from a large proportion
of the Pakeha public to resolve quickly the question of foreshore and
seabed rights, including property rights. In the public access to
waterways case, however, the Government may not have felt the same
sense of urgency. Nevertheless, the Government’s treatment of those
opposing the foreshore and seabed legislation, and those opposing the
public access to waterways proposals, proved inconsistent.10
The treatment of Maori within the Foreshore and Seabed Act itself has
also been inconsistent to that afforded to other New Zealanders: the
Act is inherently racially discriminatory.
The different treatment of peoples within the legislation and
in the legislative process aptly demonstrates the inadequacy of New
Zealand’s current constitutional arrangements. In particular, it
highlights the way in which Maori are not adequately protected from
racial and other forms of discrimination. Specifically, I am here
referring to the notion of absolute parliamentary supremacy and the
idea that Parliament has the right to legislate without being overly
constrained by human rights law, the Bill of Rights Act 1990,11 the Human Rights Act 1991, and by the
Courts, as in the case of the Ngati Apa ruling (Attorney-General
v Ngati Apa 2003)
on the foreshore and seabed issue. In a democratic polity in which the
majority rules, it is difficult to see how absolute parliamentary
supremacy can be capable of protecting minority rights, in this case
Maori rights, when these are in jeopardy. The discrimination against
Maori surrounding the Foreshore and Seabed Act specifically highlights
this inadequacy. It is for this reason that a change of game plan seems
appropriate, indeed overdue, an issue to which I will return shortly.
It is also important to note at this point that under the Bill
of Rights Act (section 7) the Attorney-General is required to report to
the House of Representatives on any provision of a Bill which is
introduced which appears inconsistent with the Bill of Rights (Thomas
2002). Despite the generally unproblematic operation of this function,
in the case of the Foreshore and Seabed Bill the tension within this
provision was unmistakeable and constitutionally questionable, given
that the Attorney-General had been overseeing the drafting of the very
Bill—the Foreshore and Seabed Bill—on which, acting as
Attorney-General, it was necessary to advise the House with respect to
its compliance with (or breach of) the Bill of Rights Act. The extent
of this tension can be seen in the Attorney-General’s acknowledgement
that there might appear to be discrimination but that on the whole it
was justified—a view problematic in itself, and in contrast to the view
taken by a UN body, CERD, which emphasised that the Act had
discriminatory features.12 What occurred
was a clear conflict of interest for the Attorney-General, one which
casts a shadow over the legislative process and the degree of
protection given to New Zealanders’ rights as intended by the section 7
provision.
Despite numerous human rights breaches, such as the right to
freedom from racial discrimination, the right of access to and
protection from the law, the right to own property, individually or
collectively, and not to be arbitrarily deprived of it, the right to
enjoy one’s own culture, and the right to self-determination, the
post-foreshore and seabed political environment can perhaps be seen as
an example of the almost tragically hopeful persistence of Maori.
Throughout the past 160 years, despite the Crown constantly breaching
the Treaty of Waitangi, Maori have continually regrouped, creating new
political formations and testing new and established avenues to achieve
change. In the face of blatant racism and other breaches of human
rights, Maori have continually used non-violent means to achieve the
goals of tino rangatiratanga.
It is in this context that the formation and experience of the
Maori Party can be considered. It is quite a feat to be politicising
and mobilising so many Maori who have previously been unconvinced of
the efficacy of participating in this particular form of governance—the
formal electoral process—as it can not, of course, be assumed that
Maori are not participating in other forms of decision-making in the
community.
THE MAORI PARTY AND THE POLITICISATION OF MAORI
The increased politicisation taking place in Maori communities can
not be solely attributed to the Maori Party. For many Maori it was the
foreshore and seabed issue, and the meetings and educational campaigns
of people such as Moana Jackson and Mereana Pitman, surrounding and
during the Hikoi, which reminded people of the legitimacy of Maori
perspectives and the crucial need for constitutional change. This
increased politicisation was strengthened and facilitated by the
participation of Whare Wananga and Maori Television. It needs also to
be acknowledged that the impact and heightened level of public displays
of racism following Don Brash’s 2004 Orewa speech may have highlighted
for many people the stakes involved: that is, what a country can be
reduced to in a climate of human rights abuses.
By directing this politicisation into the electoral process,
the Maori Party is encouraging Maori to continue pursuing avenues for
change within the State system. Politicisation within the electoral
process represents a distinct departure from the politicisation which
surrounded the initial reactions to the Government’s unrelenting
intention to legislate on the foreshore and seabed. At that time there
was a great deal of disillusionment amongst Maori and Pakeha regarding
the process, and the very legitimacy of government, when the Government
was seen to be pursuing legislation despite overwhelming opposition and
in defiance of criticisms of the legislation as blatantly breaching
national and international human rights laws and standards as well as
the Treaty of Waitangi.13 There were
numerous groups questioning how long Maori could and would continue to
respond in a non-violent manner to such human rights and Treaty
breaches. Professor Margaret Mutu suggested that the Government’s
actions could be interpreted as a “declaration of war” (Mutu 2004),
while Maori Language Commission CEO Haami Piripi warned that civil war
could potentially ensue from the legislation given that it “destroys
any confidence we might have in Parliament and in Government to govern
fairly” (Haami Piripi cited in Milne 2004). Direct action and other
forms of protest further demonstrated the level of frustration and
anger which existed in various communities. The New Brighton Pier was
occupied in Christchurch and numerous other protests took place at bays
around the country including Matauri Bay. There was also an axe attack
on the Prime Minister’s Auckland electoral office as well as various
non-violent street protests.14 These kinds
of reactions can not be perceived as totally unexpected and are
certainly not without precedent here or internationally in cases where
human rights are violated and/or where historical injustices are not
addressed and in fact continue to be committed.
It is the actions of the Maori Party, directed at increasing
politicisation in the electoral process, which can be described as
encouraging a change in the game plan. In the face of blatant
discrimination against Maori, it is not unexpected that various groups
would feel compelled to deploy civil disobedience and direct action to
achieve goals which appeared to be unachievable through the courts and
the legislative process, as in the case of the foreshore and seabed.
The Maori Party’s encouragement of a change in the game plan therefore
can be understood as in part a message to the Maori community, to focus
that frustration and despair away from resistance outside the State to
the electoral process, and also, I would suggest, towards non-Maori
politicians, some of whom are normalising public and overt displays of
racism and injustice.
As a strategy of resistance, or as part of the quest for
achieving tino rangatiratanga, Maori have a long history of involvement
in the electoral process and Parliament. Since 1868, there have been 79
Maori MPs in Parliament at various times and in various combinations.15
In the early 1900s, the Young Maori Party also had ideas about working
within the parliamentary system to improve the status of Maori. More
recently we have seen Mana Motuhake, Mana Maori, and arguably the
“tight five” in New Zealand First representing themselves as
specifically pro-Maori and part of a broader set of goals for Maori
development.16 The idea therefore of
attempting political change within Parliament is far from an untested
one for Maori.
What may perhaps differentiate the Maori Party from other Maori
individuals, parties, and representatives who have been in Parliament
could be its claims to be representing the Maori component of the
Treaty of Waitangi, that is, as the “Treaty partner of the Crown in
parliament” (Maori Party 2005). For instance, election material for the
Maori Party’s Te Tai Tonga candidate, Monte Ohia, states: “Maori Party:
your vote for the Treaty Partner” (Maori Party 2005).
There are three issues which might make problematic the notion
of the Maori Party as the Treaty partner in Parliament. Firstly, it is
almost certain that party votes for the Maori Party will come from both
Maori and non-Maori, meaning that the party’s support base is not
exclusively Maori. Those who signed te Tiriti, however, represented
whanau, hapu, and iwi exclusively. This creates a tension, therefore,
if the Maori Party seeks to represent itself as literally the Treaty
partner, if that is to mean only Maori, when its support base is not
exclusively Maori. Secondly, votes for Members of Parliament come from
individuals representing themselves, whereas again those who signed te
Tiriti signed on behalf whanau, hapu, and iwi or on behalf of
themselves as part of these larger social units. The third issue which
might make problematic the notion of the Maori Party being the Treaty
partner in Parliament is the question of whether those who enter
Parliament and particularly those who form Government consequently
comprise the Crown. Definitions of the Crown generally emphasise the
executive or Cabinet as fulfilling that role (Office of Treaty
Settlements 1999: 22). However, if we understand the Crown as those
authorities which engage in the functions of governing, then government
departments, local government, and Parliament can all be seen as the
Crown in a broader sense (Potaka 1999).
The Maori Party’s suggestion that it will represent the Maori
Treaty partner in Parliament also has significant implications for how
New Zealand’s constitutional arrangements are to be considered or
conceptualised. If we utilise a “Maori Party as Treaty partner”
framework, then our parliamentary democracy begins to lean more towards
a dual house model, with political representation and decision-making
divided in new ways. This is in fact consistent with a model of
governance explicated by Professor Whatarangi Winiata, the president of
the Maori Party, which envisages a Tikanga Maori House, a Tikanga
Pakeha House, and a senate or Treaty of Waitangi House (Durie 2005b).
Recently, Winiata has indicated that this framework is consistent with
the Maori Party’s goals in Parliament (Winiata 2005). He argues that
the two lower houses could effectively be placed “into the one house
that we know as parliament”. Winiata appears to see no inconsistency
with the Maori Party as the Treaty partner potentially involved in the
exercise of Crown duties and those of tino rangatiratanga. He argues
that “the Maori Party, jointly with all other parties, would be
responsible for kawanatanga and rangatiratanga ...”
The third house referred to in Winiata’s proposal could
presumably be the Waitangi Tribunal, which currently has the function
of investigating claims brought to it by Maori regarding breaches of
the Treaty and consistency of legislation with the principles of the
Treaty. Amendments to the Tribunal’s funding arrangements and powers
would presumably need to be made to provide the capacity to deal with
any broader tasks. In his report, the United Nations Special Rapporteur
on the human rights and fundamental freedoms of indigenous peoples,
Rudolfo Stavenhagen, made a number of recommendations which would
complement a strengthening of the powers of the Tribunal. The Special
Rapporteur was in New Zealand in November 2005 to investigate the human
rights situation of Maori, in large part as a consequence of the CERD
decision. In addition to recommending that the funding and powers of
the Tribunal be expanded, he also recognised the need for
constitutional reform to “clearly regulate the relationship between the
Government and Maori on the basis of the Treaty of Waitangi and the
internationally recognized right of all peoples to self-determination”
(Stavenhagen 2006).
There have also been suggestions that the Maori Party would
seek to caucus all Maori MPs to foster a sense of common Maori kaupapa
which might have the potential to destabilise the adversarial nature of
party politics within Parliament. While the Maori Party might have
intended to foster this manner of cooperation with Maori in other
parties, this might prove difficult given the extent to which the Maori
Party continues to highlight the foreshore and seabed issue and thus
the complicity of the Maori Labour MPs, in particular, in the passing
of that Act.17
It remains to be seen whether directing energy to a political
party is the best way to achieve constitutional change. However, in the
interim, the experience and outlook of the Maori Party raises some
interesting issues to consider.
CONCLUSION
While the intensity of the issues surrounding the post-foreshore and
seabed climate may well have appeared in 2005 to be election year
posturing, there remains a continuing sense of Tiriti and human rights
breaches and a sense of injustice stemming from the Foreshore and
Seabed Act. There is a clear sense that once again in the history of
our nation-state, those who hold particular positions of
decision-making power have failed to be convinced by a calm and longer
term vision of the great potential of fostering positive race
relations. Some hope is provided, however, by the extensive
mobilisation going on in Maori communities, where a non-violent
response continues despite intense provocation.
In summary, it has been noted that the Government’s actions
post-Foreshore and Seabed Act have brought into question its claims for
legislating in the first place. With that legislation breaching Te
Tiriti o Waitangi as well as national and international human rights
laws and standards, the flaws in our current constitutional
arrangements are once again apparent. The foreshore and seabed
legislation is not the only statute aimed specifically at removing
Maori culture, rights, and property. This episode is part of a sad and
sorry history and it is essential now that we change the game plan so
that legislation is not used in such a manner in the future.
The use of absolute parliamentary supremacy to enable these
human rights breaches to be committed is a reminder of the inherently
problematic nature of this notion, and the system which arises from it,
one that fails to adequately protect Maori (and indeed other New
Zealanders). This country does not simply require constitutional change
if, by that, we are considering merely matters of institutional
arrangements and legislative procedure. There is also a need for
constitutional change to be grounded in a memory and a vision of who
and where we are and where we come from. This should also be premised
on Maori tino rangatiratanga and Te Tiriti o Waitangi. It is not too
late to repeal the Foreshore and Seabed Act and to conduct ourselves in
a manner which is respectful of human rights and which fosters positive
race relations.
This article has been entitled “changing the game plan” as
this is what the Maori Party is attempting to do—change the playing
tactics. But the game plan needs to be changed to bring to an end the
human rights and Te Tiriti o Waitangi breaches, and instead to
encourage the pursuit of constitutional change and positive race
relations.
As one avenue for exploring game plans and remaining within
the sporting metaphor with which this article began, I would like to
turn for a moment to the rugby game between the Maori and Lions teams
that took place in June 2005. Let us think of what it means to have a
national Maori rugby team which plays in a game with other nations,
nation versus nation. This situation—which some might call
separatism—has not destroyed the nation-state: indeed, it is seen as
positive. Consider also the way in which on the night of that
Maori-Lions game the definition of Maori often stood in for New
Zealanders or the way that people conceived of the Maori team as being
in some ways a partner to the All Blacks, another national team. It
reminds us that we do have a number of polities existing and
flourishing in this country at the flax-roots and grassroots. It is
well past time for us to extend this to our national constitutional
arrangements.
ACKNOWLEDGMENTS
I express my thanks to Stephen Levine for inspiration regarding,
amongst other things, the title, and to Edwina Hughes, Tere Harrison,
and Alice Te Punga Somerville for reading drafts and perpetually
discussing the future of this country.
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1This article is a revised version of
a paper originally presented in the “Maori Politics” series organised
by Victoria University of Wellington’s Centre for Continuing Education,
held at the Victoria University School of Law in 2005. The paper,
entitled “Calling an Audible: The Political Climate Post-Foreshore and
Seabed Act”, drew on an expression used in the game of gridiron in the
United States, in which leadership is sometimes displayed on the
playing field by the quarterback surveying the situation and opting to
change tactics.
2See, for example: Clark (2004), Cullen
(2004), and Wilson (2004).
3The notion of “special privileged
treatment” for Maori has been critiqued by numerous sources. See, for
example, Durie (2005a).
4See, for example, the Waitangi
Tribunal (2004) Report on the Foreshore and Seabed Act for a critique
of certainty, arguing it could easily be conducted on a case by case
basis. Regarding access, see the Land Access Strategy where the Office
of the Minister of Rural Affairs (2004) admits that access to the
“beach” (which the Government kept claiming the issue was about) is not
covered by the Foreshore and Seabed Act 2004. Or see the Orakei Act
1991 for an example of legislation where Maori are trustees of land,
and access is ensured without confiscation.
5See the Foreshore and Seabed Act 2004;
and Jackson (2004).
6See also Kiwis Against Seabed Mining,
www.blacksands.org.nz.
7For literature on neoliberal policies of
privatisation in New Zealand see Kelsey (1993, 2002) and Jesson (1999).
8However, as highlighted by the Peace
Movement Aotearoa (2004) submission on the issue, the test of whether
or not a less discriminatory or non-discriminatory means by which the
Government’s objectives could be achieved was not satisfactorily
applied in her report. It is clear that the Government did not consider
any less discriminatory alternatives to this legislation, having
announced directly after the Court of Appeal ruling that it would
extinguish customary title, and moving inexorably in that direction
from that point on.
9Other breaches include those noted
by UN committees monitoring compliance with conventions regarding the
rights of the child, and against torture, which have also made
criticisms of New Zealand policy in recent years. The Waitangi Tribunal
in its report on the Foreshore and Seabed proposals, as well other
commentators, had already warned the Government, prior to legislating,
that it breached human rights and the Treaty by doing so; however,
these concerns were dismissed.
10Let us put to the side for the
moment the fact that some of these people may be the same and recognise
that the majority of people who comprise the Federated Farmers
Association are non-Maori.
11There is no provision under the
Bill of Rights Act 1990 for judges to declare inconsistent legislation
invalid. See McHugh (2002) and Thomas (2002).
12Ex-Judge of the Court of Appeal
E. W. Thomas has argued that there are procedures available
if it is thought inappropriate to entrust the Attorney-General of the
day with the responsibility of assessing the inconsistency of
legislation with the Bill of Rights Act; however, these procedures were
not invoked in this case. See Thomas (2002).
13See, for example, Takutai Moana Poneke
Collective (2004).
14See, for example Mair (undated); The
New Zealand Herald (2004); and Takutai Moana Poneke Collective (2005).
15For a list of all see Maori
Members of Parliament.
16Mana Motuhake and Mana Maori were
small parties seeking to represent Maori interests. The “tight five”
refers to five Maori MPs elected to Parliament for New Zealand First at
the 1996 election, winning all of the then five Maori seats
(traditionally held by Labour).
17Lindsay Te Ata o Tu MacDonald has
suggested that the Maori Party needs to “build on the numbers of Maori
in Parliament, rather than replacing those already there” (MacDonald
2004: 10).
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