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Dr Muriel Newman

In Pursuit of the National Interest

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Over the last few years the information revolution has transformed the way we communicate and access knowledge. The New Zealand Centre for Political Research is a product of this. Every week New Zealand’s largest weekly electronic newsletter – the NZCPR Weekly – is delivered directly into your home and office. If you like what you read, you can forward it on to people around the country and the world. Our website, enables you to share your opinion, read our commentaries, use our research, or, through our new petition facility, add your voice to thousands of others who are demanding change.

This revolution has created an explosion in the number of on-line news outlets, blogs and information websites that are available to the browsing public. While some are run part-time by enthusiasts, others are fulltime operations facing the very real challenge of developing business models that can provide sufficient financial returns.

Just last week The Times newspaper has admitted defeat by radically changing its free Times-On-Line format to subscriber only. It explained that on-line advertising just doesn’t pay and it is hoping that subscriber-only content will. In making this change, the Times follows the lead of other publications including the Wall Street Journal, the Financial Times, and our own New Zealand Business Review – although most other news sites continue to offer free as well as premium content.

For five years now, the NZCPR has been able to operate on a free content model because enough of our readers have believed that our contribution to public affairs and the democratic process is worth supporting. The problem is that since the recession things have become so tough that I worry that I may be forced to review the model. However, I strongly believe that the best antidote to poor government decision-making is an informed public, so today I am launching a mid-year appeal to all who find value in these newsletters to please send in a donation.

These newsletters often focus on public policies that are being pushed by governments, but that no longer appear consistent with the pursuit of the national interest. A case in point is the National Party’s foolish decision to press ahead with the next phase of the emissions trading scheme (ETS) even though it was specifically designed to align with Australia’s ETS, which has been suspended until 2013! Due to overwhelming public demand I have now re-opened our petition to suspend the ETS. As you know a letter on behalf of 4,400 petitioners, was sent to the Prime Minister just before the budget requesting that he suspend the ETS. Since he didn’t listen, we are renewing our efforts by asking anyone who believes the country can’t afford this new tax to sign the ETS petition so we can really show the Prime Minister that he has made the wrong call.

Many of you have asked what is driving the Prime Minister’s commitment to the ETS, given his more pragmatic approach to many other policy matters. I believe he explained it in an interview with Leighton Smith on Newstalk ZB back in February when he stated: “Those that wanted a focus on climate change and nothing else, such as Greenpeace, were winning public opinion. And there was a big push in that direction. And we were out of sync with them.”

In other words, the Prime Minister is desperate to retain his popularity with celebrity environmentalists like Lucy Lawless – who are a key part of the women’s demographic that the National Party is actively striving to retain. That demographic is more important to him than the interests of struggling families and businesses. So, if you haven’t signed the petition, please do so by clicking this ETS Petition icon. If you know others who believe National has done the wrong thing by extending the ETS, please ask them to sign too. Further, please keep your eyes peeled for examples of cost-price rises, business relocations, or other adverse impacts of the ETS, and visit the petition website to share those with us too.

Another public policy issue that the government is pushing that puts the rights of a small racial minority ahead of the majority public interest is their proposals for the privatisation of the foreshore and seabed. This week’s NZCPR Guest Commentator, Dr Roger Bowden, a Visiting Research Fellow at Ulm University in Germany and the former Professor of Economics and Finance at Victoria University, shares this concern in his article The foreshore smell has become deafening – not only about the direction that National is taking, but at the underhand way that they are forcing through major constitutional change:

“Just in case you hadn’t heard, it’s now official; under the coalition Government’s proposed Foreshore and Seabed Act Mark II, customary title is recognised as ownership. This is a change of constitutional character. It advances by Crown proclamation the economic interests of one specific group of New Zealanders at the expense of the remainder. Constitutional changes, official or unofficial, are not to be taken lightly. To be sure, the present government has muddled enough on other fronts, notably the emissions trading scheme, a good enough idea in principle but an operational disaster in practice. The difference is that the ETS can be suspended with a stroke of the pen by whatever government succeeds the present one. It does not take too much political or behavioural insight to realise that Foreshore and Seabed Mark II will be irreversible. That is why it is constitutional in character. To be sure, so was the Seabed and Foreshore Mark I from the previous Labour government. But that simply recognised a long standing convention with well established legal precedent.

“For make no mistake, Mark II creates a valuable property right. It will allow qualifying iwi or hapu to build marinas, fish and mussel farms, or wave platforms for generating electricity, in practice with little control or recourse on the part of local authorities. Iwi business interests will be able to mine iron sands, coltan, or whatever else is revealed in the fullness of time. And it will endow iwi or hapu with a moral case for access fees or cultural deprival compensation for the nationalised minerals (gold, silver, uranium, and above all, oil in prospective provinces like the East Cape). If that doesn’t work, then under the proposed power of veto, they can hold to effective ransom any party that does want to do such things. Money for jam. Or as an economist might put it, deadweight economic rent.” To read Roger’s full article, , please click here .

The National Party is planning to deliver effective sovereignty of New Zealand’s foreshore and seabed – including our territorial sea out to the 12 mile limit – to Maori. While they have stated that only 10 percent of the coastline – 2,000 km – is expected to be privatised to Maori at this stage, as we all know, once this process starts, Maori sovereignty activists will not be satisfied until the 10 percent becomes 100 percent. That National is to take the country down this path without public mandate demonstrates an astonishing arrogance given that only a few short years ago they promised voters an end to race-based laws. In his review document the Attorney General stated that the rights of all New Zealanders would be taken into account when considering the future of the foreshore and seabed, including recreational and conservation interest, business and development interests, and local government – as well Maori. However, the only group to have been consulted is Maori – and all of the protestations by self-interested Maori that National has not gone far enough on the deal, has undoubtedly been orchestrated to make the public think that the new bill will be reasonable. Unfortunately, the reality is very different from the spin.

Just as the National Party acted without a mandate when it signed the United Nations Declaration on the Rights of Indigenous Peoples, now it appears they are pushing New Zealand further down the indigenous rights path – towards Article 26 in fact. Article 26 of the Declaration states, “Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired”. If the government’s foreshore and seabed plan succeeds and Maori are given control over our territorial sea and all of the resources within the foreshore and seabed, this will effectively satisfy parts of this article even though the Prime Minister stated categorically that the Declaration was only symbolic!

The legal history surrounding the foreshore and seabed is very clear. Up until 2003 the public and the government all believed that the foreshore and seabed was owned by the Crown. Had that not been the case, Treaty of Waitangi claims would have included the foreshore and seabed as a matter of course. Then in 2003, the Court of Appeal’s activist judges controversially ruled that some Maori with land contiguous to the foreshore and seabed (in other words adjoining it) might have customary title. However, they also pointed out that the test – having to prove in a court of law continuous and uninterrupted use of the area since 1840 – was very high and they believed that few would succeed. So with Labour’s Foreshore and Seabed Act being passed in November 2004 to reaffirm Crown ownership, Maori customary title might have existed for just over a year.

In spite of those facts, National is intending to significantly lower the bar for Maori who are planning to claim “customary title” or ownership of the foreshore and seabed. First they intend to drop the “contiguous” land requirement, which will have the effect of massively expanding the number of iwi around the country who will be able to lodge claims – instead of it being restricted to the small number envisioned by the Court of Appeal. Secondly, National intends dropping the requirement for Maori to have to prove in a Court of law that they have had “continuous and uninterrupted use of the foreshore and seabed since 1840”, instead enabling them to negotiate directly with a Minister. The option to go to court will still be available – no doubt for those who fail to successfully negotiate with a Minister – with taxpayers being required to fund much of the costs of preparing their case.

Those Maori who cannot claim ownership but can argue a “customary right” to the foreshore and seabed, will gain protected status under the Resource Management Act, priority status in planning processes, the right to restrict public access to any part of the beach they deem to be areas of special significance to Maori, as well as the right to obtain “commercial benefit” from the area. These can be negotiated with a Minister, or proven in court.

National also intends to create a third property right to the foreshore and seabed, to ensure that other Maori do not miss out. “Mana tuku iho” is a ‘universal acknowledgment’, a blanket provision that will allocate the foreshore and seabed area all around the country not only to coastal iwi, but also to any others who can claim a connection with the area. There will be no need for negotiation or court application – Mana tuku iho will essentially be available on demand and will provide for the co-management of the area in addition to other rights.

If you are concerned about all of this, then join the Coastal Coalition – an umbrella group that wants to keep the foreshore and seabed in Crown ownership by retaining the present 2004 Foreshore and Seabed Act. That Act gives Maori the opportunity to have their day in court to establish their customary rights. To find out more, click the Coastal Coalition icon. Time is running out – the new bill is expected within a few weeks. At least the Labour Government had the decency to release a policy document outlining their proposed foreshore and seabed law before the legislation was tabled in Parliament so that the public could provide feedback. However, National is clearly desperate to rush this through by Christmas – before the public realises what’s going on – so the next thing we will see is the bill.

The Attorney General has stated that National’s proposed law, which will undoubtedly open the floodgates to a new Maori grievance industry, will rely heavily on the concept of “tikanga” Maori. To help to clarify what that means, I will leave you with the definition of “tikanga” used by the Waitangi Tribunal in its report on the Crown’s foreshore and seabed policy:

“…everything is about tikanga, and tikanga is about everything. In the traditional Maori world view there is no matter that does not have tikanga attached to it, and the foreshore and seabed are quintessentially bound up with tikanga. Tikanga imbues consideration of every aspect of the elements themselves, and how humans interact with them.”