National and the Maori party have portrayed the Auckland supercity Maori seats as a spat. It is a fundamental difference. v Hone Harawira will lead a hikoi. Pita Sharples will grump that it is a matter of mana.
Then, logically, there might be a select committee manoeuvre to make it look as if the National had to give in to other parties. There will not be bad blood between Sharples and John Key.
There will be bad blood still between Tariana Turia and Labour. The foreshore and seabed law will not be forgiven.
Michael Cullen, whose stint as Treaty Negotiations Minister will be writ large on his political epitaph, last week in a submission to the ministerial review of that law said “customary title” should be granted under an amended act. That was left out of the original.
Actually, Cullen’s line of argument hasn’t changed. His speech to a Chapman Tripp occasion five years ago explaining his proposed foreshore and seabed law could have been repeated nearly word for word this month.
He argued then that no one could “own” the foreshore and seabed in the same sense as owning a piece of land. Under the common law it was common land and the Crown held it for everyone’s use.
The Appeal Court, he said, asserted that the Maori Land Court had jurisdiction over the foreshore and seabed but it “would have had to apply Te Ture Whenua Act 1993” and that act “was intended to apply to dry land only and is incapable of recognising a property right which does not lead to fee simple title”.
Nevertheless, continuous use established a “customary title”, which amounted to a property right, though not to fee simple which confers “ownership”. So “customary title” was in the legislation at the time of the Chapman Tripp speech — and referred to in that speech — but fell victim to the bargaining with small parties for a majority, National voting against. Small parties also insisted the Crown have absolute title, not just a vesting for common use, which Cullen wants reversed now. His major change since 2004 is that he would now have the initial hearing in the Maori Land Court and not the High Court.
Recall National’s reaction in 2003. Bill English, then leader, told non-Maori New Zealanders they were at risk of losing their right to “barbie on the beach”. National even put up billboards to turn apprehension into fear and anger.
That was the party Sharples, Turia and Harawira are now in league with.
In theory the government could have appealed the Appeal Court ruling to the Privy Council. The Chief Justice thought as much. But the government was running a bill to abolish appeals to the Privy Council (against opposition from National and commercial lawyers) and could hardly give it credence on a crucial case.
National, by 2004 under Don Brash, proposed to overturn the Appeal Court decision. That, Cullen said in 2004, would have extinguished a property right (customary title as a result of customary use) without compensation.
That is then. Now is now. Sure, barbie-on-the-beach English is Deputy Prime Minister. But Key, a rookie MP in 2004, is Prime Minister. And Key, as we see over tax and much else, is flexible and wants to smooch Sharples, Turia and Harawira into an enduring relationship.
Moreover, some MPs who came into Parliament in 2005, notably Attorney-General Chris Finlayson, who knows a thing or two about iwi, want National to attend more to property rights. Property rights are, after all, supposed to be a core National principle, extinguishable only on compelling public interest grounds, with appropriate compensation. Only ACT argued a strict property rights line in 2004.
But when it comes to cultural rights, and particularly indigenous cultural rights, and especially when those rights touch power, National’s instincts are to park them in a side street. Key was suitably cautious when challenged on the United Nations declaration on indigenous rights.
There are good reasons for New Zealand not to sign. They centre in part on New Zealand courts’ practice of giving weight to international treaties on the presumption that if the government signs up to a treaty it must intend to implement it.
Most signatory countries treat indigenous populations poorly. China is a standout example. But it is not alone. Ask the Ainu in Japan or any of the multitudinous “Indians” in the Americas or the Basques whether their governments take indigenous rights half as seriously as New Zealand does.
So Key was cautious, as was Helen Clark before him. His party rank and file likes having the Maori party onboard but would rather it had left some of its baggage ashore. Their interest in Maori is more in their development as citizens than in their rights as mana whenua.
That is a fundamental difference. To the National party Maori seats on the Auckland supercouncil strike at the citizenship — one-person-one-vote — principle. Rights go only so far.
* Last week I wrongly added an “e” to former Treasury Secretary Murray Horn’s surname.