The new law on the foreshore and seabed is not just about legal rules. Its a symbol, and that's what everyone is fighting about.
I see Tim has put in his 5 cents worth - see, he knows the true current value of his thoughts! - on this topic, but as I'd already typed a chunk of this post before his went up I'll carry on irregardless. Doesn't it seem like the foreshore and seabed matter gone from the stuff of high drama - tens-of-thousands marching on Parliament, the formation of a whole new political force - to a bit of a legislative farce?
We've got the Act Party, which doesn't actually want to see National's replacement legislation passed into law, nevertheless insisting that it contain a provision explicitly stopping one group of New Zealanders from charging the public a fee to access areas they have property rights over. Meanwhile, we've got the Maori Party, which claims the people it represents would never actually want to charge the public a fee to access this particular property, reacting with fury at the thought the law will expressly say they can't do so.
Just what is going on here?
Well, let's start with Act. It is possible to argue that its position on the foreshore and seabed issue has been consistent all the way through - at least, Rodney Hide made that claim on this Kiwiblog thread. (Is that really what he's reduced to now - communicating his party's policy to the world through the comments sections of a blog, even one as prestigious and well-respected as DPF's?) However, Graeme Edgeler pretty much takes him to school on that claim, pointing out not only the various inconsistent statements the Act Party has made on the issue over the years, but also how its basic claim to want to return Maori to the pre-Foreshore-and-Seabed-Act legal position whilst also denying them anything more than (undefined) "customary rights" over the land in question is pretty incoherent.
Then when you read David Garrett's first reading speech setting out why Act opposes the Government's proposed replacement for the Foreshore and Seabed Act 2004, you get another picture. The concern is not that the legislation is improperly depriving Maori of legal rights that the common law recognised, but rather that it might end up giving Maori too much in the way of control over the foreshore and seabed. This all seems predicated on a fairly basic error; that the Court of Appeal:"stated—and this is important—that the chances of gaining such title were not very high. The exact quote stated: '… any customary property in the areas vested seems unlikely to survive.'" While it is true that this quote appears in the judgment, it relates only to a very specific matter - the effect that various bits of local legislation might have on the particular claim in question in the Marlborough Sounds. The Court of Appeal simply did not say anything very much at all about what was needed to establish customary title in the general case, because that was not the question before it. So to say that Maori will get more rights and/or land under the Government's legislation than they would have got under the common law is (at best) purely speculatory and (at worst) malicious nonsense.
So Act's position is pretty simple, really. With this amendment they get to stand as the Party committed to keeping the beaches open to every Kiwi (unless the relevant foreshore and seabed is in private hands - then keep off!), all the while arguing that the right thing to do would be just to let the courts deal with any Maori claims under existing common law (albeit a bit tweaked to ensure it produces the right outcomes) ... a stance they can portray as unlikely to give Maori very much at all ... and an outcome they know actually is never going to happen in any case.
But what to make of the Maori Party? And in particular, why exactly is it threatening to toss all its toys from the cot over an amendment that simply tells Maori they can't do something they probably wouldn't have a right to do under common law (thanks again, Graeme!), almost certainly couldn't do under the Bill as written, and claim that they don't even want to do anyway? Clearly it can't be because of any concerns about how the legislation as rewritten will impact upon its real-world application. What's their problem, then?
One possibility is that the opaque-to-outsiders world of Maori politics is putting so much pressure on Maori Party MPs over their support for this legislation that they actually want a reason to abandon it. There's hints of this pressure emerging not only in Hone Harawira's posturing, but also in stories like this. However, unless you're immersed in that world, then you can but speculate on what is really going on. And you also have to ask whether the Maori Party really can afford to walk away from this legislation, given all that it has staked on it. I mean, if this deal dies, then surely that is it in terms of the Maori Party/National Party relationship ... and that then leaves the Maori Party with just Labour to deal with ... and that doesn't look too likely in the foreseeable future.
So it seems to me that the anger being expressed toward Act and its demanded amendment is about that most important of political considerations - saving face. The Maori Party needs to be seen to "own" this legislation, if it is to be able to sell it to its support base and justify its existence. That sales job already is difficult, as the reality of the proposed law falls far short of some of the inflated expectations that the Maori Party itself helped pump up. And having the Act Party score a victory with regard to its content - even a victory over something as inconsequential as making "free access" explicit rather than implied - makes that claim of ownership even more difficult.
So what we have here is a classic case of "legislation as symbol". The content of that legislation may not appreciably change the way the world works, or really alter the rights and obligations of the people who live in that world to any great degree. But its very creation and passage sends a message about whose will prevails and whose interests are considered important.
Not, I hasten to note, that calling this stoush "symbolic" in any way reduces its importance. That would be to assume that symbols don't matter, and that only "real rules" do. A foolish mistake.