The Foreshore and Seabed Act:
19 November 2004
It should not be surprising that it has ended like this: that the government’s inept response to last year’s Court of Appeal decision on the foreshore and seabed should have ended with the ramming through under urgency of one of the most controversial Bills of recent times. No reasonable person could conclude that it was anything other than a travesty of democracy for such an important piece of legislation to be given such inadequate consideration by Parliament, with MPs having to digest and vote on 67 pages of amendments in the space of just two days.
This abuse of democratic process is of a piece with the way in which the government has acted ever since the Court of Appeal decision in June last year. All New Zealanders, regardless of their views about Maori foreshore and seabed rights, should feel sad about this. Michael Cullen is right when he says that this issue has been a test of New Zealand’s nationhood. Unfortunately, it is a test that we have largely failed. We have failed because we have been unable to have a genuine conversation aimed at finding a solution that both Maori and non-Maori can live with.
I am not going to revisit here the reasons why the Foreshore and Seabed Act is unjust. Instead, I want to review briefly the government’s mishandling of the foreshore and seabed issue over the past year and a half. It is hard to know why the government was so ill-prepared for the Court of Appeal decision in the Marlborough Sounds case, but whatever the reason, the government panicked when the Court’s decision was released. Instead of reacting calmly, taking the time to consider the implications and talk to those who might be affected, and reassuring the people of New Zealand that there was nothing to fear, the government immediately declared that it would legislate to reassert Crown ownership. Ill-advised comments from government ministers were reinforced by blatantly biased and ignorant reporting in the Pakeha media.
The government then embarked on a process of ‘consultation’ about a set of principles and proposals that it had developed. This so-called consultation was nothing of the sort. The consultation period was too short, and the government did not come to the consultation with an open mind or a genuine intention to listen. Maori overwhelmingly rejected the government’s proposals, but the government did not shift at all from its proposed approach to the issue. The government showed similar disregard for the carefully-argued report of the Waitangi Tribunal. Rather than giving proper consideration to the Tribunal’s very reasonable and sensible recommendations, senior members of the government dismissed them with arguments that were demonstrably false.
Next, the government was confronted by the massive hikoi to Parliament, an amazing display of Maori resistance to the government’s foreshore and seabed policy. The Prime Minister dismissed the hikoi as a bunch of ‘haters and wreckers’. Having marched with the hikoi from Te Papa to Parliament, I can assure her that I saw no hatred and no wreckers, but the atmosphere was certainly reka (sweet or pleasant). Helen Clark would probably have enjoyed being part of a march like this in her younger days before she started preferring the company of sheep.
Finally, the Foreshore and Seabed Bill went to the Select Committee. This, we were told, was our opportunity to use the democratic process to have our say. Almost 4,000 people took the time to make written submissions, and almost all were opposed to the Bill. The committee allowed fewer than 250 of these people to make oral submissions. For their trouble, submitters were dismissed and disrespected by members of the Select Committee, including the Chair, Russell Fairbrother, whose statements to the media characterised submitters as ignorant and misinformed. When the Labour and New Zealand First members of the Committee blocked United Future’s proposal that the Committee take more time to consult and report back, the Committee became deadlocked. Consequently, the Committee was unable to report back on the Bill with proposed amendments, leading to the unedifying spectacle of the Bill being amended and passed under urgency this week.
Michael Cullen says of the foreshore and seabed debate that ‘Few issues in our time have caused so much division about so little of substance.’ Even if we accept, for argument’s sake, that there is little of substance at stake (whatever that means), the government should not be allowed to evade responsibility for stirring up division. If, when the Court of Appeal decision came out, the government had taken a deep breath and begun a process of genuine consultation, it is unlikely that we would be facing the deep discontent that now exists about the Foreshore and Seabed Act.
The government claims that it has consulted extensively and that the issue has now been under discussion for some 18 months. But this ignores the important difference between a process in which the government says ‘This is what we are going to do, let us know if there are ways in which it can be made slightly less objectionable’ and one in which it says ‘This is the problem, let’s sit down and talk about what we can do about it’. The Waitangi Tribunal report, and many submitters to the Select Committee, called for a ‘longer conversation’ about the issue. The government rejected this recommendation. The government is now proposing to establish a national dialogue about the place of the Treaty of Waitangi in our society and constitution. It is unclear why we are considered mature enough to engage in such a dialogue, but not to have a genuine conversation about options for resolving the foreshore and seabed issue.
I am not unsympathetic to the difficult political position the government has found itself in since the Court of Appeal decision. Any government would have found this decision challenging, and would have struggled to balance the rights of the Maori minority against the anxieties of the non-Maori majority. I have no doubt that the government sincerely believes that it has tried to strike this balance. But in doing so it has followed a deeply flawed process and produced an unjust outcome. It would be nice to think that the government might be able to acknowledge that, under severe pressure, it has made some serious misjudgements. Of course, this will not happen governments rarely admit that they were wrong, let alone say sorry.
The passage of the Foreshore and Seabed Act is not really the end of this saga. The legacy of the last 18 months will no doubt be a lingering sense of injustice among many New Zealanders, both Maori and non-Maori. It has never been the case, as Helen Clark and Michael Cullen have repeatedly claimed, that only small groups of extremists on either side are unhappy with the government’s policy. Now, however, the genuine extremists may start coming out of the woodwork, fuelling dissension and bitterness. We must not allow that to happen. It is time now to learn from the mistakes of the past year and a half, and to start thinking about how the injustices that have just been enacted can be put right.