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Michael Coote

A question of trust – The government and the Marine & Coastal (Takutai Moana) Bill

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In the cop spoof comedy “Sledgehammer”, the policeman hero Mike Hammer used to pull out a huge silver gun in the presence of frightened women and children and say, “Trust me, I know what I’m doing.”

The National-led government is in the same position with attempting to force the Marine and Coastal (Takutai Moana) Bill through Parliament as soon as it can get away with it.

The electorate is being asked to trust the National-led government – more particularly prime minister John Key and Treaty negotiations minister and Attorney-General Christopher Finlayson – to know what they are doing with this dangerously flawed, divisively racist, powderkeg piece of legislation they are sponsoring.

In fact, there are many tens of thousands of New Zealanders – Maori or otherwise – who don’t trust the government on this matter and don’t want the bill passed, and the government is delusional if it seriously believes it has the widespread support for it that John Key has said is a necessary precondition for the bill to become law.

Mr Key need only open his eyes to see that the support is not there, and that it is really only the Parliamentary wings of the National Party and the Maori Party (minus Hone Harawira) who are determined to ram the bill down the throats of all New Zealanders regardless of what the public has been saying in thousands of verbal and written submissions in opposition.

The political isolation of National and the Maori Party on this issue is palpable and National in particular should realise that it is stepping off a cliff if it passes the bill under urgency or otherwise.

Even National and the Maori Party are at loggerheads over the bill (setting aside Mr Harawira).

National says the bill is a full and final legislative settlement of the foreshore and seabed issues that Maori have been complaining about since a previous Labour-led government passed the Foreshore and Seabed Act 2004, and that once the replacement Marine and Coastal (Takutai Moana) Bill is enacted, then that is the end of the matter, period.

The Parliamentary Maori Party – or the rump that’s left of it since Mr Harawira became an independent MP in all but name – says enacting the bill is only a temporary waystation in producing a “new, improved” version down the track, and that rather than being the end of the matter, is only just the beginning.

Thus National and the Maori Party are in reality poles apart, and if Mr Key can’t recognise an out for National supporting the bill in all the opposition right across New Zealand, he has one in the disagreement with the Maori Party over whether the enacted bill would be a permanent or a temporary solution.

Mr Key has always maintained that if the Maori Party rejected the bill, then National would not proceed further with it.

In stating that the bill is only a temporary solution, the Maori Party has implicitly rejected it.

Accordingly, Mr Key should publicly challenge the Maori Party to put up or shut up – that is to say, to accept the bill as the final and permanent solution, or to reject it, and say further that he will not accept any weasel words in return about revisiting the newly enacted bill later on.

A simple “Yes” or “No” Mr Key is what you should demand from Maori Party MPs right now as to whether they accept the Marine and Coastal (Takutai Moana) Bill as it stands (subject to any last minute amendments) or reject it outright.

Odds are, put like that, the Maori Party would reject the bill, and National would be off the hook, but even if – against all odds – the Maori Party said instead it accepted the bill as a permanent, not to be revisited resolution of the foreshore and seabed conflict, Mr Key then has widespread public reaction against it to fall back on in saying he is not convinced the support is there as per his original necessary precondition for replacing the Foreshore and Seabed Act 2004.

There is, thus, more than one way out, and one that oddly enough suits the Maori Party.

Remember that the whole reason the Maori Party exists is the Foreshore and Seabed Act 2004, because its co-leader – former Labour Party MP Tariana Turia – resigned from Labour and Parliament in protest at the Act, forced a by-election in her Maori electorate, and returned to Parliament as the then sole Maori Party MP.

The rest, of course, is history, in that all the other Maori Party MPs entered Parliament on Ms Turia’s coat-tails.

In all reality the Maori Party would most likely prefer that the foreshore and seabed issue is not resolved permanently and any time soon, as otherwise what is the reason for the party’s continued existence?

What else has the party to stand for or represent as its one, over-arching pan-Maori (as opposed to balkanised tribal-specific) issue that it can get Maori electorate voters to coalesce around?

So from a political calculus point of view, the Maori Party surely wants to go into the 2011 general election with the foreshore and seabed matter unresolved, and this can be achieved either by way of passing the Marine and Coastal (Takutai Moana) Bill with the proviso that it is an inadequate temporary solution to be revisited later on, or because the bill has been rejected and so the Foreshore and Seabed Act 2004 still stands in law.

Either way, surely the Maori Party would get what it wants in being able to continue feasting heartily on the foreshore and seabed conflict after the 2011 general election.

Without that particular juicy item served up on the political gravy train menu, the Maori Party is faced with some pretty lean fare to keep its conspicuously overweight MPs dining in the style to which they have become accustomed.

How far can you trust a Treaty lawyer?

The head cheerleader for the Marine and Coastal (Takutai Moana) Bill has been its dogged – some would say dogmatic – sponsor, Treaty negotiations minister and Attorney-General Christopher Finlayson, who has put his political reputation on the line in demanding that all New Zealanders trust him absolutely in accepting that he alone has squared the circle and resolved the foreshore and seabed conflict, the thousands of objections against his position notwithstanding.

This lone individual is asking all of us to trust him because he knows what he’s doing.

Those who do not trust Mr Finlayson presently fall into two camps – Maori, whom he fawns upon and insists he’s all ears for, versus the rest, whom he curtly dismisses as despicable imbeciles beneath his unbounded contempt.

Mr Finlayson has kept reassuring an increasingly alarmed public that there won’t be all that many claims succeeding under the enacted bill, and that hardly anyone will notice the difference when these claims do succeed.

That, however, somewhat misleads with respect to the realities of the Treaty legal industry, within which Mr Finlayson distinguished himself in the past as a foremost ruthless practitioner on the side of Maori seeking realisation of maximalist Treaty claims.

If we look at what Mr Finlayson did in the past as a Treaty lawyer, and what lawyers will be doing in the future with Maori foreshore and seabed claims if his pet bill gets enacted, we have ample room for doubt as to whether we should trust him at all when he insists he has got it as right as it can ever be with his bill.

In his maiden speech to Parliament, Mr Finlayson stated, “For many years I was involved in Treaty litigation. In particular I acted for Ngai Tahu in its claim against the Crown. The proudest moment of my professional career was being at Kaikoura on 21 November 1997 when the former Prime Minister, Jim Bolger, and Sir Tipene O’Regan for Ngai Tahu signed the Deed of Settlement. Since then, Ngai Tahu has gone from strength to strength and is now a major economic and social force in the South Island.”

In the Sunday Star-Times of May 30, 2010, Mr Finlayson was reported as saying of his work acting for Ngai Tahu, “I used to love going to the office in the morning when we were suing the Crown … Ngai Tahu mastered the art of aggressive litigation, whether it was suing the Waitangi Tribunal and Doug Graham (a former National government minister of Treaty negotiations) or the Director-General of Conservation. It was ‘take no prisoners’.”

No doubt Ngai Tahu mastered the art of aggressive, no-prisoners Treaty claims litigation because it followed Mr Finlayson’s advice to the letter, earning him some very handsome legal fees in the process while he was suing all around him.

However, as poacher turned gamekeeper, Mr Finlayson – now reinvented as a National government minister of Treaty negotiations, the new Doug Graham – has a different song to sing.

In a cribsheet circulated around National Party members to help them argue against the claims of the Coastal Coalition that the Marine and Coastal (Takutai Moana) Bill was fatally flawed, he proffered the following gem:

“Under Common Law, native (customary) title exists wherever it has not been extinguished (see Attorney General v Ngati Apa [2003] 3 NZLR 643 at lines 27-29). It could well have covered an area beyond three nautical miles in 1840, but within 12 nautical miles of the shore. The Crown can only recognise native title in that area where the Crown has sovereignty.”

“Today, that includes to an outer limit of 12 nautical miles (the extent of New Zealand’s territorial waters). However, when an iwi seeks recognition of customary title within that area it must prove its exclusive use and occupation since 1840 of the whole part of the area it is seeking title to. This may or may not be as far as 12 Nautical miles, depending on the facts of each case. It will obviously be harder to prove exclusive use and occupation the further out to sea a claimed area is. For example, if an iwi customarily only ventured 1km out to sea, that is as far as their customary title could extend.”

So let’s get this straight – when he was a Treaty lawyer, Mr Finlayson advised Maori tribal clients to go for the jugular and sue anything that moved in their ruthlessly greedy pursuit of maximalist Treaty claims.

But now he is a minister of Treaty negotiations trying to lull all New Zealanders into a false sense of security over his Marine and Coastal (Takutai Moana) Bill, Mr Finlayson advocates minimalist claims for Maori tribes when it comes to the foreshore and seabed – say, as far out as a mere 1 km from shore when Mr Finlayson’s own proposed law says such a claim could go out as far as 22.5 km (12 nautical miles).

Certainly the Maori tribes who have publicly indicated what they intend to claim for under “Finlayson’s law” have stated that they will go after the maximum entitlement extending 22.5 km out to sea.

Mr Finlayson is surely trying to lead the unwary astray with his modest one kilometre figleaf.

Supposing Mr Finlayson left Parliament and went back to his oldest profession in working as a Treaty lawyer with the newly added sideline of marine and coastal work courtesy of Finlayson’s law.

Wouldn’t Maori tribes with foreshore and seabed claims be beating a path to his door, because with his proven track record both inside and outside Parliament, he would be “The Man”.

And what would Mr Finlayson advise these would-be tribal claimants, say, over how far out towards the 12 nautical mile limit their claim should extend for?

Let’s imagine a Maori tribe XYZ who comes to see Mr Finlayson in his posh new legal chambers.

XYZ’s people have read Mr Finlayson’s cribsheet for National Party members who didn’t know what to say in reply to legion critics of Finlayson’s law.

“In your cribsheet,” says Hopeful Claimant, one of the tribe’s spokesmen, “you say we shouldn’t go for more than 1 km out to sea because getting 22.5 km could be a bit tricky to prove.”

“So we wondered if you could get us our kilometre back with a claim.”

“Oh don’t be such a silly sausage,” chortles Mr Finlayson.

“That was then and this is now, and I only wrote that to get Finlayson’s law past those pathetic morons who were objecting to it.”

“Of course tribe XYZ shouldn’t sell itself short going for just a kilometre!”

“As your legal counsel I would be acting in your best interests as my profession obliges me to do, and my advice would be to go for the max – the full 22.5 km – and stuff anyone who doesn’t like it.”

“Bugger them! – we’ll sue them into the ground like I used to do for Ngai Tahu!”

“Think of the mineral rights for Maori under customary title that I promoted so vigorously back in the days when Finlayson’s law was just a twinkle in my eye.”

“Do you know how much it could be worth to tribe XYZ to own those mineral rights and the veto, wahi tapu, and management plan powers that come packaged with a customary title that ran all the way out to the 12 nautical mile limit?”

“If I was your lawyer acting in this case, I simply couldn’t in all good conscience stand idly by watching you sell yourselves down the foreshore and seabed, when I know full well you should put in the biggest claim you can under Finlayson’s law, concede one or two minor things if you have to along the way, and come out the other end of the process with one great big fat hairy motherfo’ (I know how to talk to the bros) of a customary title area added to your tribe’s asset base!”

“Golly, Mr Finlayson, you really do speak our language,” burst out an amazed and suddenly enlightened Hopeful Claimant and his fellow spokesmen in unison, “You’re hired!”

“Not so fast, dear boys,” responds Mr Finlayson, warming already to the tribe’s obviously tragic and pressing need for justice long denied to be restored to the fullest extent of Finlayson’s law, “First we must discuss my fee.”

And of course, there are plenty of other Mr Finlaysons out there in Lawyerland just waiting for the claims to roll in under the Marine and Coastal (Takutai Moana) Act 2011, and – yes – they will be giving the sort of aggressively litigious, maximalist claims advice Mr Finlayson gave to Ngai Tahu and still boasts about at every opportunity.

Trust Mr Finlayson? At least rest assured he knows only too well from his past as a take-no-prisoners, “sue first, ask questions later” Treaty lawyer what he’s doing now.

What can you do if the Marine and Coastal (Takutai Moana) Act 2011 becomes a reality?

You can boycott National at the 2011 general election.


Make no donations of money or in kind to National’s election campaign.

Withhold your all-important party vote from National, either abstaining from casting it or casting it for a Parliamentary political party that voted against the bill at its final reading.