Why Chris Finlayson needs a blogsite ...

If you find yourself calling people "clowns" or "paranoids" in the course of your day job, it's a good sign that you need to join the blogosphere.

At the risk of generalising, and without wishing to offend my fellow Punditeers, I think those of us who participate in this blogging malarky share a number of characteristics. One is a (possibly overinflated) sense of self-worth and confidence in the import of what we write. A second is an enjoyment of intellectual cut-and-thrust, even though this rapidly can descend to a less-admirable swapping of insults.

I suspect a third is having a family or group of friends who have to suffer more than their fair share of "let me tell you what I think about ..."-type statements over the dinner table or pub leaner. At some point they invariably snap and, whether gently or with robust firmness, suggest that they don't really care to hear anymore about the matter and would the speaker please stfu.

So for those of us made like that, this interweb blogging thing is perfect. We get to sit in front of a screen, carefully (or not so carefully) craft our opinions into glittering (or not so glittering) prose, before sending them out for the entire world to enjoy (or endure). Then, if anyone wishes to join in debate with us, we can argue, nit-pick and deride ... at least until we decide that they are not really worth trying to engage with, at which point we can summarily dismiss them from the field.

All of which is a long-winded way of saying: blogging lets you blow off as much steam as you like without having to suffer any real personal consequences as a result. Hell, you can even do it under a nom-de-guerre if you really want to avoid any fallout.

For this reason, I think the Attorney-General Chris Finlayson could well do with starting up a blogsite of his own to vent a bit of the frustration he must be feeling over how debate on the Marine and Coastal Area (Takutai Moana) Bill is developing. Last week he delivered a pretty startling public slap-down of the Coastal Coalition - the Muriel Newman-fronted group trying to stop Maori (but not anyone else) from getting any property rights over the Foreshore and Seabed.

Describing the group as "clowns", "paranoids" and "people who think the Phoenicians and Vikings were here first", Finlayson proclaimed "They can't beat me on the intellectual argument. They are not going to beat me on this other front either."

Let me say upfront that in this particular case I agree wholeheartedly with both Finlayson's sentiments and his chosen means of putting them. But don't his words read more like they came from a particularly strongly expressed, albeit well crafted, blog post on the topic - maybe one written here or here - than from the mouth of Minister of the Crown? Remember also that they come just a couple of weeks after he told a group of Maori protestors in Taipa to "go to hell" with their (non-foreshore and seabed related) demands.

Which leads me to think that the stresses of having to deal with on the one side the steadily inflating claims of Hone Harawira and some Iwi, whilst on the other former allies such as John Ansell and Don Brash rage against you as a virtual race-traitor, are beginning to tell. As a scholar of the classics, perhaps Finlayson might take succor in imagining himself as Odysseus seeking to navigate his way between Charybdis and Scylla - although he'll also remember that that feat came at the cost of six good men lost.

What, though, of the course he has chosen (albeit after a quite protracted and seemingly genuine process of wide consultation) to try and reach safety on this issue?

Well, its not exactly my area of expertise - I didn't feel qualified or up-to-speed enough to put in a submission to the Maori Affairs Committee on the Bill, for example -  but there do seem to me to be two pretty important matters that need some hard thought by that Committee.

The first is the test that will be applied to determine whether any group of Maori can get "Customary Marine Title" recognised over an area of the foreshore and seabed. The proposed test is contained at clause 60 of the Bill:

Customary marine title exists in a particular part of the common marine and coastal area if the applicant group—

  • (a) holds the specified area in accordance with tikanga; and

  • (b) has exclusively used and occupied the specified area from 1840 to the present day without substantial interruption.

Given that "Customary Marine Title" is the closest Maori can get to "owning" the land in question - there are other, lesser ways Maori interests can be recognised and protected in the Bill - this test really is the big one for Maori. Some Iwi, like Ngai Tahu, have decided that it is so stringent that they won't be able to meet it at all - and so it would be better not to have the Bill pass and to revisit the issue on another, later, more propitious day.

That's a pretty major call to make, given that it would mean the existing Foreshore and Seabed Act 2004 continues as law for the foreseeable future. So how justified are Ngai Tahu in making it? Well, that rather depends on what you think the law would have looked like if Parliament had never started messing with this issue in the first place.

Remember, back in 2003 the Court of Appeal simply said that Maori could go to court and claim that they had property rights over the foreshore and seabed that the common law recognised. What the Court didn't say anything much about, despite DPF's repeated claims here and here, was the common law test that would have to be met in any particular case before those property rights would be established. The Ministerial Review Panel on the Foreshore and Seabed Act had this to say on that particular matter (at pp 111-112):

In any Native Title case the key issues confronting the Courts are whether the Native Title exists and, if it does exist, whether or not it has been extinguished in some manner. The real uncertainties after Ngāti Apa revolved around these two components. What would need to be shown before the High Court could find that Native Title existed? The New Zealand Courts could have been guided by Australian precedent on this, in particular the High Court of Australia decision in Mabo v Queensland. This held that the crucial test was the continued exercise of customary law with respect to a particular place. But this is only a guess: the New Zealand Courts might possibly have preferred somewhat different approaches to this key question developed in the Canadian Courts. ... . There is just not enough New Zealand case law in existence to allow us to make a reliable prediction.

The point being that we simply don't know what Maori would have had to demonstrate in order to establish they enjoyed property rights at common law. Consequently, the test set out in clause 60 may be "too tough" (i.e. harder to meet than the common law otherwise would have demanded) or may be "just right" (i.e. the same as the common law would have required).

Therefore, because the Government is legislating in an area of legal uncertainty, it may be acting appropriately in deciding to make it quite difficult to establish Customary Marine Title, or it may be acting inappropriately by doing so. That's a policy question that, in the final analysis, boils down to asking "how much, or how little, of the coastline should fall under such title?" And that's about as politically fraught a question as you can ask right now - but that doesn't mean it isn't very, very important to do so.

The second matter that needs some hard thought is the way in which any particular rights that Maori might enjoy over the foreshore and seabed will be recognised. Under the Bill, there's a two-track process proposed.

The first is through the good old courts: an Iwi or hapu makes a claim, the court assesses it against the criteria in the legislation, and provided it qualifies the appropriate orders are made. That's the time-honoured way of establishing the existence and extent of property rights.

But it does have the drawbacks of being pretty expensive, slow and potentially burdensome to an already overworked judicial process. So the Bill proposes an alternative route for dealing with this matter.

Under this avenue, an Iwi or hapu can go direct to the "responsible Minister" - that is, whomsoever the PM puts in charge of the legislation - and negotiate for recognition of their rights. Provided the Minister is satisfied the claimants meet the criteria set out in the legislation, the Minister can (not must) agree that they have the concomitant rights. These are then certified through an Order in Council, without the matter going anywhere near the courts.

I get why this approach appeals. In many cases, claims under the legislation likely will be worked out between the Crown and claimants before going to Court, so why not just cut that step out altogether? And if the Minister properly applies the criteria in the legislation, then you'll just get the same outcome in any case.

First of all, that last "if" is a bit, well, iffy. We give over to the courts the role of interpreting and applying the law because we want such decisions taken by people who don't have a direct skin in the game. Having elected members of the executive branch, who may suffer direct political consequences for their decision, in charge of applying the legislative criteria risks getting decisions that are overtly politically driven.

Of course, Iwi or hapu who find that a Minister refuses to reach an agreement with them can always head off to court to have it declare their rights under the legislation. But what of the opposite case - where an agreement is made between an Iwi/hapu and the Crown? In that case, anyone who thinks the agreement was wrong - that the criteria in the legislation haven't been met by the claimant Iwi/hapu - will have to seek a full judicial review of the Minister's decision to enter into it. See above for comments on expense, delay and overburdened courts.

Note also the differences between the judicial and the negotiated agreement routes under the Bill. If an Iwi or hapu goes to court to get their rights declared, there are all sorts of requirements to specifically notify affected local authorities and "any other person who the Court considers is likely to be directly affected by the application", as well as generally notify the public that the application has been lodged.

With the negotiated agreement route, the Minister needs to notify ... nobody at all. He or she may do so, and there may be general natural justice requirements that will lead him or her to do so in order to protect any resultant agreement from future judicial review, but the Bill does not specifically require any sort of direct or general public notification.

It seems to me that while it is understandable why establishing a quicker, less-costly way to put all this to bed is so desirable, the prospect of a Minister being able to make agreements to confer (or, rather, recognise previously existing but since overridden) rights over particular areas of the foreshore and seabed without any mandated requirement for publicity or ability for affected individuals or groups to participate is a tad problematic. I also think that those problems mean it won't work particularly well.

Look at all the negotiation required to get this legislation to where it is today. Is there any reason to think that things will just go quiet once it is passed into force? And if that controversy continues, trying to make agreements between the Crown and Iwi/hapu without ensuring that everyone has had a say on the matter is not likely to be particularly effective.

Given all of the this, I'm pretty sure that if I was in Chris Finlayson's shoes, I'd be a basket-case by now. And that's without being forced to deal with nonsense like this. So I hope this post doesn't make his job any harder - I genuinely admire what he is trying to do on this matter.

I just think a blog would help him release some of the tension it's causing him.