EDITOR'S NOTE: The following is a paraphrased transcript of this morning's Radio New Zealand interview of political commentator Colin James by Nine To Noon host Linda Clark. It concerns the Government's proposals on Maori customary rights in the Foreshore and Seabeds. The full interview, which was preceded by an equally fascinating and illuminating exchange with John Tamihere can be listened to at XTRA.
COLIN JAMES AND LINDA CLARK TALK ABOUT THE FORESHORE AND SEABED
Q: Helen Clark promises a win-win? Is this a win-win?
A: I think at the moment it is more a lose-lose, but it could turn into a win-win. And if this doesn't turn into a win-win what kind of nation will be left with. We are all in the same Waka the PM says and ethnic cleansing is presumably not an option.
This is a defining moment in the redefinition of whanau, Hapu and Iwi rights in NZ society. That is why it has been some time to get to this point and why there is still a long way to go. This is not a race issue it is a sub-tribal issue and a family issue and many people do not understand this yet.
Q: What is this idea of "Public Domain"
A: This sounds more liberal than crown ownership. More inclusive. It sounds like a way of getting away from the sharp end of crown ownership.
Q: Does Bill English have a point?
A: Yes. 85% of NZers thought that their representative the crown owned the foreshore and the seabed. I thought I had that right. Too. Everybody thought that. The Appeal court said differently though. And That leaves some people outside the Waka.
Q: What about the legal decision?
A: It overturned doctrine going back to the 19th Century in finding as it did. The decision is very interesting and refers to conservative law from the United States in the early 19th Century. It holds that the ownership remains with the colonised people unless it has been taken away. The ownership of foreshore and seabed has not been taken away. Therefore it can be claimed.
Q: This is a backdown from the PM?
A: Yes it is. Margaret Wilson's press conference after the decision definitely talked about legislating for Crown Ownership of the foreshore and seabed. And the PM did not disagree.
Q: Where is Margaret Wilson now?
A: She wasn't on the platform yesterday. But she will have to conduct negotiations in the future. This may become something akin to a Treaty Issue after people establish Customary Title through the Maori Land Court.
Q: Will this become another fiscal envelope for settlements?
A: This could go on and on. Yes it could. Nobody has any idea how many claims might be out there. This is a new bit of the envelope it seems. A bulge in the envelope.
The new court is going to create a new kind of title, "Customary Title". Linguistically this is getting very tricky. Effectively there is going to be the extinction of the right to gain freehold title, replaced with a right to a new kind of title. But what is the use that the title is for? Is it for dragging the Waka into the sea as the PM has said? Or is it for extensive gathering of shellfish? How wide is it? How narrow is it? We don't know.
Q: What would it have been if the law is not changed?
A: If anyone had successfully established full title then they would have had clear rights concerning trading and exploitation. Including rights to all minerals except for oil gas gold and silver. They would have still been subject to the RMA though, which is the Government's principle of regulation.
Q: Is this confiscation?
A: Hypothetical compensation. Yes it is. In the hypothetical case that you could prove use before 1840 and continual use since, and that is a high test. This is not all the coastline we are talking about here but bits of it.
Q: This is a defining moment, what will Maori do?
A: Maori are in a difficult position. This will be sold as a do you want a decent deal with us now, or do a harder deal with National. And National have said they will confiscate. They are clear about that. That is the 85% political reality of this issue.
Q: Where is Tariana Turia left?
A: She feels about it very deeply. There is always an issue for people inside the tent fighting for a difficult cause. The leadership believes it won't lose any MPs through this. But it might. The thing is. Who is going to represent the people Tariana Turia represents in Government if she goes. Turia is valuable to this government because she represents these people – i.e. because through her they have a say. And so the Government is going to try and keep her if possible.
Q: And Maori Affairs Minister Parekura Horomia?
A: I don't know where he is on this. His value to the government is his links to traditional Maori. Which are very strong.
Q: And John Tamihere?
A: Tamihere is doing the fronting on this. There is going to be a lot of weight on these MPs to take the Government's message to Maori at the hui in Nelson and elsewhere.
Q: How much is open for negotiation?
A: There are two major areas…
1. Whether to have a new division of Land Court, or keep the existing. The government clearly wants a new one.
2. What to do with people who already own bits of seabed and foreshore. Whether to compensate or not.
Q: Has Helen Clark done enough to remain at 40% in the polls?
A: The Dominion Post headline "Beaches for all" is very good. The NZ Herald has something similar I believe. If that is the message that is taken away by the 85% from all this then Clark may even rise above 40% Govt. Though she may still lose some Maori votes she will remain solid enough.
That said. There is a lot of water to run under the waka yet ("and over the wet bits in the beach" – Linda Clark) on this issue yet.