20 years on from the Foreshore and Seabed confiscation: Treaty itself at risk of being taken.
Twenty years ago I, unwittingly, left a portion of my fingerprint on a corner of one of the fliers condemning the Labour Party’s Foreshore and Seabed Bill which were strewn outside then Prime Minister Helen Clark’s electorate office opposite Eden Park. There was also an axe attached to her office window – I should really mention that too. Later that day, 18 November 2004, the New Zealand Parliament had the third reading of that Bill and it passed into law. That was exactly twenty years ago today. Following a police investigation I was later charged with – and subsequently convicted of – sedition for my clumsy communications work on that flier headed “Confiscation Day.”
Two decades later Helen Clark posts concerned messages to Twitter about the Act Party’s ‘Principles of the Treaty of Waitangi Bill.’ One could be forgiven – if they were not history buffs – for believing that she actually cares. A rat that chews around the edges but doesn’t touch the middle is no less a rat however. It has been fascinating to watch the covert eroders of Treaty rights come out as defenders when Act is the one perpetrating the constitutional offending in the open. The truth is the former Labour Ministers just like the current National Ministers can harangue Act, but they are responsible for undermining the Treaty with their pernicious legislation – a Bill to re-confiscate the foreshore and seabed (now called the marine and coastal area) is before the House as part of the coalition agreement.
More intellectually honest has been Shane Jones who recalls his reticence at the extension of Treaty Principles into a wide range of legislation when Helen Clark and Tariana Turia were pushing Bills through the House before the Foreshore and Seabed fractured Labour and birthed the Maori Party. Jones has sympathies in both directions straddling Pakeha bigotry and Maori economic aspirations within NZ First along with competition with Act for the redneck vote. Jones has said, generously, that David Seymour himself doesn’t want to end Maori rights but his backers do. He attributes quite a degree of unwittingness to Seymour that stretches credibility. It seems very obvious Seymour not just understands but also embraces the inevitable racial antagonism his Bill will and has already produced. His backers are primarily animated with the money they derive from access to natural resources and property development (rather than ‘culture war’ distractions) so the RMA is what they really want amended to remove Maori rights. Raw racism though is still a major factor with these goons as they link it intrinsically to moral claims affecting land rights… which is just a fancy way of saying ‘white supremacy’ I suppose.
A six-month select committee process for a Bill that neither coalition partner intends to vote for at second reading is political masochism without any possibility of a happy ending. The political mismanagement by National to have agreed to such a timeframe speaks of a weakness in that party that has been evident throughout the coalition talks and not so much speaks but screams out the incompetence of not just Christopher Luxon but also Chris Bishop and Nicola Willis especially. Jim Bolger, Jenny Shipley, Christopher Finlayson and more Nats to come have denounced the intent of the Bill and criticised the handling of it.
The trolling Act performs for a percentage point or two at the next general election is not of the white liberals it is of the indigenous people and their guaranteed rights which necessarily elevates the Bill to an existential affront. The logical trajectory for Act will be to further escalate the Bill into an actual threat by launching a Citizens’ Initiated Referendum off the back of it in six months. Willie Jackson in his blistering evisceration of the Bill at last week’s first reading assumed that was where Seymour would take it. Te Pati Maori’s eviscerating blisteration that ended in an epic haka on the floor of the chamber foretold where Maoridom would take it. So, when Shipley said a civil war was a potential result was it just hyperbole?
Seymour was asked directly by the Editor of this blog when he was moderating the “Iwi versus Peewee” debate on the Bill whether Seymour was planning a CIR following the defeat at second reading. Seymour said no, claiming there were other ways of curtailing Treaty rights and, he reasoned, getting the 10% threshhold of signatures was too onerous. Who believes this?
It makes political sense for Act to pursue a CIR and it will be practically achievable to piggyback a CIR signature gathering onto a pre-election campaign without incurring major costs using the MPs and their parliamentary resources along with the parallel affiliates of ‘Hobson’s Choice’ and the usual suspects of Don Brash, Muriel Newman, David Farrar et al and Steven Franks (as Keyser Söze). The legislation wording is already sitting there right now on the legislation.govt.nz website. Most of the work from officials at least has already been done – a CIR is to be expected.
So, let us say a CIR is generated with the same scenario as the Bill and Seymour uses his influence within Government to have it run concurrent with the general election. What will the 2026 campaign resemble if the Treaty is the dominating topic? How combustible will the electorate be at this point having been polarised over the whole three year term? Seymour doesn’t even care about the result (which is not binding on the Government because a CIR is indicative) he cares about increasing the Act party vote and the attention and friction will most likely achieve a lift on the current number. Seymour could get thumped on the referendum and it might fail by a double digit margin… but Act would still pick up at least a couple of points and more MPs. (The flip side – as opinion polling has shown over this last year – is that Te Pati Maori will likely attract as many additional party votes as Act because of this issue.)
However what if the referendum goes Seymour’s way and gains 50%+? This would be Shipley’s civil war genie-out-of-the-bottle scenario. It is not my intention to catastrophise in a Trotterian vein but it should be laid out what shape things could take.
The first effect would be a heart-breaking certainty of Maori that the white majority are racist towards them and wish them ill, but the reaction from Maori will not be dispair it will be anger. Like John Key’s flag referendum the Maori Electorate voting results will be heavily opposed and it will be transparent just how unconsenting the Maori electorate is to it. It will be seen – maybe by both Maori and Pakeha – not as a clarification of a marriage contract, but as the initiation of a divorce proceeding. But who gets what from the split? How can we continue to co-habit?
The second effect would be on the coalition talks if National need Act again. If Act make it a bottom line then National are in an extremely difficult situation, perhaps even an impossible situation given the anger. Make it binding, enact the result, and civil disturbance would break out: Iwi, Hapu, every Maori organisation would do their bit co-ordinated or not to boycott or disrupt as much government activity as possible at every level. Allied Pakeha institutions, unions etc would join the resistance. Ungovernable would not be unthinkable. The leverage Act would have under the spectre of this would be overwhelming – in exchange for not enacting it Act would be able to extract a haul of outrageous concessions from National that would make Versailles look modest. Go ahead with enactment and how would the coalition weather the storm? – or would it be politically and administratively suicidal? – an impossibility to even consider attempting to endure that force 11 cyclone?
The other spectre is judicial interpretation, or activism as it’s usually referred to. The Bill is supposed to cure that, but I have reason to doubt it. The politicians write the words, but the judges have to make sense of it and it is not always as straightforward as it seems. Older laws may affect it, newer laws may affect it, other rules and notions may affect it, circumstances and situations may affect how it applies – even if the statute declares that it is something it maybe that it is after all the other effects not exactly what it said it exactly was. Even the Bill, drafted as tightly as it is in economic wording, might still be subject to some form of ‘activist’ interpretation.
I am reminded of the judiciary riding to the rescue precisely because it is why the Bill has in large part been put forward. Treaty won’t go away – as Moana Maniapoto sings – and neither will those pesky judges.
Not long after being charged with sedition I visited Opotiki to see whanau and while there got to meet (for the first and, unfortunately also, the last time) Claude Edwards, the long-serving chair of the Whakatohea Maori Trust Board who had lodged a claim for the tribe to our Taku Taimoana (coastal marine territory). I asked him why? What was the point? The Foreshore and Seabed Act would give us nothing. But he was old, and wiley, and wise. He said the judiciary would have to go on what Maori understand our property rights to be, that they would have to rely on previous judgments, would have to rely on the Treaty and that this would overcome the abominable and confiscatory restrictions of the Act. The extreme intent of the Act would be its undoing. I admit that I was highly sceptical of his reasoning: that no judge in their right mind could accept something so unjust. He appeared to be quite certain about it, but it seemed quite far-fetched to me.
Well, twenty years later the Edwards case is about to go before the Supreme Court. Justice Churchman in the High Court has already awarded the marine area – basically all of it out to the 12 nautical mile territorial limit – to the collective six Hapu of Whakatohea and it has been through the Court of Appeal and stood up and is now to go to the top court on a few refined matters. Claude has already been vindicated – Churchman gave the broadest interpretation he could and reasoned as Claude had foreseen.
The battle seems endless however. The Government and their coalition agreement have taken umbrage at the Edwards ruling and an amending Bill has been lodged to harden the test to make it near impossible to meet leaving Whakatohea the King tide mark, as it were, with all future claims of other Iwi and Hapu looking to be significantly curtailed. Our struggle continues, as the flier concluded, “Ake! Ake! Ake!”
Tim Selwyn was the last New Zealander to be convicted of Sedition
Luxon needs to step up and be a man and save NZ from all of this racist shit .He needs to go into the house and stand up and tell ACT the deal is off and the bill is dead today .HE also needs to remind his own four eyed monster that the treaty and all its sections are here to stay as in the 1840 treaty that was signed so his sea bed grab bill is also dead in the water .
There goes that flying pig again
Yes…Seymour’s a baby…he’s like the annoying kid at school who constantly indulged in attention seeking behaviour to boost his self esteem that most people, most of the time , ignored…
Finally somebody would have had
enough and flick his ear or clout him
and off he’d run….
And off he did run.. to all his right wing lacky podcasters and the 1ZB loonies.
Seymour , Mr. 8%, is a naive little chappy and has only got to have his
little say on the back of a corrupt Epsom Electorate and a handful of multi millionaires .
His hubris is something to behold …
he’s not clever…he’s not insightful..he’s not smart…
He’s just a stupid dweeb with a grudge who is about to get a hiding…
Will he learn…er…no!!…some people never do.
He won’t because it is his ‘closet’ agenda too. He has to pretend ACT are the fringe coalition loonies. Don’t be food by Worm Tongue Seymour’s false rhetoric.
Luxon won’t do that gordon he is weak. I am hoping for a big crowd in my hometown tomorrow I will take a leave, and the weather is going to be nice.
Treaty means different things to different people, some see it as a way to protect our country from capitalism, and some see it as a partnership model where tangata whenua and tiriti jointly co- govern this land, and many more views in between.
Hence, at a helicopter level a discussion of treaty principles makes good sense, to eliminate this ambiguity.
You may be right, but David should have had this chat before going hard on a vile bill .Had he sat down and educated his self and got into hui with educated and run of the mill population he may have negated the need to stir shit at the behest of his rich white owners .
A Tiriti partner came to parliament today, lead by the Rangitira, Queen and tangata whenua. The other Treaty partner stayed inside. Such disrespect won’t build our nation.
Very good points .
David Seymour is anything but an open operator and to call Shane Jones intellectually honest has got to be a joke. Your Act slip is showing again. I agree that Act are doing this for the attention, which this is clearly getting them, they are cynical operators. However the size of the protest puts paid to the idea of a split N Z along white and Maori lines. Too many people feel exactly as Jenny Shipley (of all people) said. Nobody but nobody supports this bill, it should be killed forthwith as Luxon has been advised to do by all the National grandees. He is an idiot. It’s too bad Chippy can’t be replaced with Willy Jackson so Labour can capture the majority vote that will swing left if Willy was leader.
Hi Tim and bomber, just for the records sake I am back in the land of the landlord.