The Foreshore & Seabed review: winners and losers

The Ministerial Review of the Foreshore and Seabed Act 2004 points to a new way forward. Who are the winners from it, and who are the losers?

There is no doubt about what is the greatest casualty of the just released Ministerial Review of the Foreshore and Seabed Act 2004. The reputations of Helen Clark and Michael Cullen will forevermore have an asterix placed next them, as the architects of a piece of legislation now officially labelled as discriminatory on the grounds of race, in breach of the Treaty of Waitangi and international human rights law, as well as representing an unjustified taking of property rights.

Given Helen Clark's current role as the head of the United Nations Development Programme, an organisation purportedly committed to the promotion of human rights norms around the globe, that is a somewhat unhappy legacy. In his valedictory speech in the House, Michael Cullen tacitly acknowledged that the legislation was not his finest hour, noting "the lack of a consensus around the foreshore and seabed issue" as one of his failures while in office. What makes that failure even worse is that it was entirely one of Labour's own making. As David Farrar makes clear, Labour leapt to legislate long before Don Brash started stirring the racial pot at Orewa and put up those "Iwi/Kiwi" billboards.

However, the other big loser from the Review is New Zealand's parliamentary democracy. Don't forget that the only parties to genuinely oppose the passage of the Foreshore and Seabed Bill on principled grounds were Act and the Greens  (along with Tariana Turia and Nanaia Mahuta, who crossed the floor to do so). National voted against it, but only because they believed it gave too much to Maori. United Future also opposed it on the third reading, but only because of an abstruse dispute over whether the land at issue should be in "Crown ownership" or "public domain". So the great majority of MPs in the House actually supported a course of legislative action that the Review now says "was not a realistic option in ethical terms", using a lawmaking process that "left much to be desired."

So much for the losers. The big winner is obvious. When Tariana Turia left Labour  and joined with Pita Sharples to form the Maori Party, they took a gamble. Having made the Foreshore and Seabed this new movement's primary raison d'etre, they knew its success largely would be judged on its ability to deliver change on the issue. With the release of this Review that gamble has paid off handsomely, almost irrespective of what the National government does next. Because from now on, in any debate with Labour, the Maori Party simply needs to say: "you gave us the racist Foreshore and Seabed Act. We won a compete review of it. Who really delivers for Maori?"

The second winners are the Maori seats that put the Maori Party into the House. Although these have been criticised as unnecessary and discriminatory, the role that they have played in enabling Maori grievances to be channeled into the parliamentary realm has been fully vindicated. Without such guaranteed access of Maori, elected by Maori as Maori, these grievances can explode into violence. Following this Review, I don't think the seats are going away anytime soon.

The third potential winner, although the one still facing the greatest danger of making a sow's ear out of a silk purse, is National. If it can pull off a lasting settlement of this issue that satisfactorily balances Maori and public access interests, then it can take Don Brash's skeleton from its closet and bury him deep, deep in the ground. Indeed, it could well mark a long-term political rapprochement between the Maori and National parties. That is still, of course, a pretty big "if". A quick review of chapter 7 of the Review's report indicates just how complicated and loaded this project will be. Furthermore, the ongoing recession and National's cuts to public spending (which likely will impact more heavily on Maori than non-Maori) may yet drive a wedge between the two parties. But the opportunity is there for National to do something quite special in political terms.

The final winner is, oddly enough, New Zealand's parliamentary democracy. Yes, Parliament (and most of our political parties) failed a test in 2003/04. But this Review proves that our political system is self-correcting, as is the case with Labour's other ill-considered enactment, the Electoral Finance Act 2007. Opponents of these policies have agitated within the electoral process for change. They have mobilised their supporters, marshalled their arguments, and kept the matter on the public agenda. And despite the fact that Maori are a minority in electoral terms, the dynamics of MMP have allowed them to achieve their ends.

So yes, the Foreshore and Seabed Act 2004 was a stain on New Zealand's Parliament and system of lawmaking. But it is a stain that New Zealand's Parliament and system of lawmaking looks set to erase all by itself. Which is a good thing, and something to bear in mind when considering what our constitution should look like in the future.