Imposing the market on Maori land

Neoconservatism is a dirty word. Conservatism isn’t inherently bad, but the addition of neo loans a sinister quality. The same principle applies to neoliberalism: yuck in name and wrong in practice. The sinister impression is well suited. Neoliberalism is more than an economic ideology, it’s a political theory too. Shrinking the state, imposing market imperatives and disciple on intellectualism, and supressing unions and other proletariat movements is as economic as it is political.

In poetic irony at its finest, neoliberalism best demonstrates Marx’ law of increasing poverty (the rich get richer and the poor get poorer). A 2006 report found that the neoliberal American economy “consistently affords a lower level of economic mobility than all the continental European countries for which data is available” and a comparative report from Victoria University highlights “persistent and widening inequality and increasing concentration of wealth” in New Zealand. With this and more in mind, Maori must exercise caution when applying neoliberal values to Maori land.*

The Minister of Maori Affairs and the Associate Minister of Maori Affairs (Chris Finlayson) have released an expert discussion document on Te Ture Whenua Maori Act 1993 – the Maori Land Act. There’s a lot to like: proposition 1 will transfer more power to engaged owners and reduce the need for the Maori Land Court and proposition 4 recommends that disputes are referred to mediation (in the first instance) rather than the Court.

However, proposition 2 would allow the appointment of an external manager to “administer and develop” underutilised land where the owners are disengaged or unable to be located. That’s not wrong in itself, but shouldn’t the first priority of an external manager be to attempt to engage or locate the proper owners? Isn’t it wrong in principle to have an external manager “utilise” land that she or he has no cultural right to and might be unsure of its purpose? Land might sit idle for a reason (Wahi Tapu, Rahui etc). It seems wrong, in the first instance at least, to blithely assume that idle land must generate an economic return.

The last proposition suggests that only engaged owners with a minimum threshold interest can make decisions in their land. The rationale is to prevent fragmentation of Maori land and streamline decisions. Well, that might make utilisation easier, but it seems wrong in principle. Owners have a whakapapa right to the land, no matter the size of their shareholding. After all, some owners can possess more shares than others through accidents of history rather than legitimate claim to the land. In an effort to encourage utilisation, the proposal could throw legitimate owners out with the bath water.

On the whole, the report speaks a lot of sense. I’d like to see most of it implemented, but I’m wary of the emphasis placed on increased utilisation without a proper discussion about the reasons for idle land and the consequences of utilising it. There’s a careful line between imposing market imperatives on Maori land and destroying the mauri of the land:

"Neoliberalism encourages the privatisation of Maori communal assets, the commodification of Maori land (and) the extension of market forces into Maori areas previously untouched"

Link
 

*For further reading here is a semi-recent discussion on neoliberalism from Paul Buchanan. Also see the Wikipedia entry for a neutral (albeit undercooked) outline. 

Foreshore and seabed claims rolling in

I think it’s a non-story, but reaction will be strong in the usual quarters:

Inquiries by 3 News show Maori are now claiming customary title to more than 20 beaches, and three Maori groups are making claims on one small island - Motiti Island, in the Bay of Plenty.

The three different groups are competing against each other for effective ownership - customary title of the coast.

The Motiti claims are among 21 different areas of coastline now under 24 claims for title under the Marine and Coastal Area Bill.

Well, this isn’t surprising is it? The intention of the act is to “provide for” and “recognise” customary interests. In other words, the act invites applications. The bigger question is, I think, how many of these claims are going to be successful. Scanning the various claims I would argue very few.

There are claims lodged with the court and claims lodged with the government. A claimant can apply for, or negotiate which may be the more appropriate word, for a recognition agreement with the government or apply for a recognition order from the court. In my opinion, applying for a recognition agreement with the government offers the higher chance of success. The court must follow what is, and authorities agree, a rigid legal test. On the other hand the government avenue offers more flexibility. The government is not constrained by precedent, legal principles and so on. The government is, it should be noted, constrained by politics though. Politics may, you can argue, be more restrictive than the law. On balance, however, politics is more flexible than the law and, as a result, offers a greater chance of success.

There are 12 claims lodged with the Court and 12 lodged with the government. Most of the latter have transferred from applications under the Foreshore and Seabed Act 2004. Of those claims before the court, the only ones I can see succeeding are in the Eastern Bay of Plenty where Whakatohea and Te Whanau-a-Apanui exercise undisturbed rangatiratanga and wrapping around the coast where Ngati Porou are in a similar position. In other words their rangatiratanga has – arguably of course – never been extinguished. It can also be argued isolated parts of the Northland and Stewart Island remain under Maori control.

However, applications from the Taranaki and Hawkes Bay will face significant hurdles as will applications in the Bay of Plenty from Ohope tracking north through to the Coromandel. In these areas the non-Maori population is significant and, as a result, Maori rangatiratanga has probably been extinguished in the eyes of the court and the government. Having mentioned the Bay of Plenty I should note that, as mentioned, claims in the Eastern Bay of Plenty (east of Tirohanga) are strong as are the claims to Motiti Island. Motiti remains an almost exclusive Maori community.

It’s interesting to note that there are applications from whanau and hapu as well as iwi. In the case of Motiti Island there are three competing claims.

Interestingly Patrick Gower also notes that:

But it is not just more of the coast under claim, it is now the delicacy on your plate too - the great Kiwi pastime whitebaiting.

Under the claims lodged, three groups want customary rights to whitebaiting in southern Taranaki near Hawera.

But the Government says other law overrides the new foreshore law and they will not get it.

“If they wanted to claim for whitebait under the Marine and Coastal Area Bill they would literally be pushing whitebait up a river,” says Chris Finlayson.

Tariana Turia disagrees and thinks the claim may have some substance. She may be right. Although whitebaiting is a customary right, it occurs outside of the area considered part of the common marine and coastal area. However, it can be argued that whitebaiting falls within s62 – rights conferred by customary marine title. But - to point out the bleeding obvious - Chris Finlayson has already denied the claim (see the above quote). The chances of Finlayson going against the above statement and approving the claim are, I think it is fair to assume, minimal.

Essentially, these are questions for the court or the government to decide; whatever way they fall there will be political consequences, but that's not going to worry Maori and the more success we have the better.

Len Brown: a scab and a racist?

These sorts of stories really annoy me:

A $30-million plus block of prime Auckland waterfront land will lose its marine park designation when it is sold cheaply to Maori as part of a big Treaty deal.

The 3.2ha Takapuna Head site, used by the New Zealand Navy as an officer training school, is being sold back to Ngati Whatua for $13.8m - but the iwi has been given freedom to do what it likes with the land.

At the same time, the Government is close to finalising a settlement with Ngati Ranginui in the Bay of Plenty on the land under two primary schools and Tauranga's new police station.

But local elected officials say they were never properly consulted: Auckland mayor Len Brown has written to Treaty Negotiations Minister Chris Finlayson asking for a meeting. He said the settlement would "potentially alienate future public access to the property".

"What is more concerning is that this change is being introduced without any formal consultation with the local board and/or community and the Auckland Council," he added.

Firstly, there is no obligation on the government and Maori to consult the Council. Secondly, the status quo will barely change. Ownership will change, but the Navy school will remain and in Tauranga the two primary schools and police station will remain.

What underlies objections to land transfers, or in this case land purchases, is racism. Many New Zealanders have an unfounded fear that Maori will restrict access, develop the land in ways that will negatively affect the community and so on. I’d challenge anyone who operates under this mind set to point to more than one example where Maori have blocked access to previously public land, urupa (cemeteries) and other wahi tapu (sacred) sites excluded. Restricting access runs contrary to Maori values. After all, there is no such thing as private property in Te Ao Maori.

In this particular case, the government and iwi have obtained approval from the Hauraki Gulf Forum. It was the Gulf Forum that secured the areas marine park designation so surely they are the most appropriate group to consult and seek approval from – the Council is secondary.

It's disappointing, but understandable I suppose, to see Len Brown objecting. If the Mayor continues to oppose the proposed deal then he risks perpetuating the current grievance. If iwi do purchase the land, new grievances will not be created. This is rubbish. Will the people of Takapuna be that sore about the navy school site being sold. 90% of the good residents won't even notice and 95% won't even care. 

Basically, this is a non-story. The story should focus on Len Brown's opposition to treaty settlements and his continued drift to the right.  

Williams CJ?

Apparently one or two appointments will be made to the Supreme Court within the next year. I have no idea who will be appointed but I would like to see Justice Joe Williams considered. Williams is Maori, but that is not the sole reason why he should be appointed. Appointments should be based on merit and merit alone. However, were a situation to arise where one has two equally qualified candidates, one of whom happens to be Maori, then a compelling case exists to appoint the Maori. As far as I am aware Williams is a well respected legal mind. As former Chief Judge of the Maori Land, former head of the Waitangi Tribunal, the first Maori law lecturer at Victoria and current High Court Justice, Williams is most certainly qualified.

From my quick research into William’s background I think it is fair to say he is undeniably Maori in outlook, yet conscious and accepting of the fact that Maori must operate under a Pakeha framework. He is realistic. I would classify Williams as something of a tino rangatiratanga advocate, however not in an ideological sense. He does not believe in Maori self government and all those other unrealistic expectations and desires. Rather he believes in the pragmatic notion of tino rangatiratanga – enhanced wellbeing as opposed to self rule.

Ultimately, the decision on who to appoint sits with the Attorney-General. I am fairly confident Justice Williams will not be overlooked by either Chris Finlayson or, if Labour is in power, David Parker. It is something of an anomaly that in New Zealand, in 2011 might I add, that Maori are absent in both the Court of Appeal and the Supreme Court.