AGENDA - DR MICHAEL CULLEN
Interviewed by SIMON DALLOW
PART 1
SIMON
Dr Cullen why the rush to legislate why not let courts determine the applications by due process?
MICHAEL
Well certainly I don't think there's a rush I mean the court decision was June of last year, the legislation's going to get its first reading in May of this year and be passed probably in November or December of this year so something like 18 months from the court decision to passage. The difficulty that we were left with was that the court came to the conclusion on the basis of a 1993 act that the Maori Land Court could determine that foreshore and seabed was customary land and which then would be translated into freehold land for registration purposes, that was not the intention of the 93 legislation, it was not an intended consequence of the act, and it left us with the position where people were immediately concerned that substantial areas of foreshore and seabed could pass into private ownership, collective ownership in this case and there was a clear demand that traditional rights of access and public ownership should be asserted. Now ….has gone on since then is trying to reconcile those demands from the great majority of the population whether legitimate demands from Maori that customary rights are protected and a process to enable some consideration of if you like the day in court to be held and if necessary therefore redress to occur in discussions between the government and affected Maori.
SIMON
You mentioned the Court of Appeal decision, the Court of Appeal went to great pains to emphasise the difficulty for claimants to establish customary title to the foreshore and seabed, isn't the socalled threat to public access being overstated, I mean isn't there an element of panic and scare mongering in here?
MICHAEL
I don't think so completely, I mean obviously as always in these sorts of areas people over react and the irony was the Court of Appeal decision was read by both many Maori and many Pakeha in the same way and both incorrectly, both seemed to draw the conclusion that the court have said that Maori owned the foreshore and seabed, well of course it's not what the court said as you rightly say, they simply ruled that the Maori Land Court had jurisdiction, but I think the Court of Appeal probably underestimated the amount of land which would be recognised with the Maori Land Court and Waitangi Tribunal itself made that comment in its decisions or its recommendations in relation to the government's original policy proposals, and I suspect the Tribunal was closer to the truth in that case than the Court of Appeal.
SIMON
The experience we've had so far is that granting title to foreshore and seabed hadn't turned into a cataclysmic affair, I mean we have the very positive experience of Tuwharetoa's custodianship over Lake Taupo, why not pursue the negotiated settlements particularly as it would have accorded Maori the respect they crave.
MICHAEL
Because what we were left with was something rather different, we we're left with the prospect of people applying to the Maori Land Court for customary land status, becoming freehold title, and then effectively presume the government's going to negotiate from that position about either access or repurchase or whatever it may be, and as I say that was an unintended consequence of the law, there's nothing unusual in parliament and government's through parliament legislating to change the law when the courts have ruled what parliament intended in fact is not the meaning of the law, in fact I mean speaking as Minister of Revenue we would probably do this almost every year at least once in that respect. I think in a way the notion of overturning court decisions in relation to title is almost worse than saying well in fact the framework isn't right, and to some extent both the Tribunal and the Court of Appeal accepted the framework wasn't right, they both said in fact that what was needed was a wider range of options than was available under the 1993 act which was referred to.
SIMON
But you can understand of course that removing the opportunity to even claim that customary title leaves Maori feeling aggrieved.
MICHAEL
I understand that and it's simply one of the reasons why in the final version of the policy which is in the bill we've provided that Maori can go to the High Court which has the inherent jurisdiction in these areas to get a declaration that but for the passage of the legislation they would have been able to assert territorial customary rights, not customary usage rights but territorial customary rights and if that is found to be the case we have to enter into discussions around redress then, so people will get that day in court but within perhaps a more appropriate context than an act which was not designed for that purpose.
SIMON
Why did you then take the option of pursuing other legislation amendments to the resource management acts and say removing foreshore and title from the scope of the Te Turawhenua Act.
MICHAEL
Well if we'd if we'd simply removed foreshore and seabed from the scope of Te Turawhenua Maori Act of course that would have completely overturned the Court of Appeal decision and left Maori with nothing in effect other than the potential to go back through the High Court route which nobody had done in New Zealand up to this point, but certainly no capacity for better protection for customary usage rights and still some fuzziness around who actually is supposed to be talked to in the RMA in relation to consultation etc over resource planning issues. The advantages from local government's perspective of the government's proposals is that it provides a mechanism to sort out who actually ought to be consulted under current legislation in the RMA.
SIMON
What advice has the government received whether the legislation breaches the Bill of Rights?
MICHAEL
There's been a good deal of discussion around that and the final version of that advice is yet to be given to the government I understand, it comes through Margaret Wilson.
SIMON
What is the interim advice?
MICHAEL
There are questions around that, particularly if we'd not provided for the High Court's jurisdiction, if we'd not provided for that then I think it's quite likely that the legislation would have failed quite clearly a Bill of Rights test. I think on balance now it will, not least because of course now there is if you like an even handed approach Maori and Pakeha are on the same footing in terms of applications for customary rights and contrary to what's been said recently Maori and Pakeha are on the same footing in relation to objections to applications for customary rights.
SIMON
I think there's been some confusion over the legislation itself and explain for us if you would what the difference between Crown ownership and public domain are in essence.
MICHAEL
Well in fact those were not seen by the government as it developed the last stage of the policy as alternatives, the formulation of the bill as we had it a couple of weeks ago was that there was Crown ownership in order to ensure that the foreshore and seabed remained within the public domain, and public domain's a concept if you like of the public's involvement in ownership thereof and the Crown, the government's the mechanism to achieve that. Mr Peters saw that as potentially creating uncertainty and insisted on its removal as a condition of his support and we had no choice given the numbers to accede to that. What I would hope is that through the Select Committee process some way of expressing that concept which is strongly backed by groups like Fish & Game and other groups is able to be included in all legislation form which is acceptable to New Zealand First and also perhaps therefore gives United Future the opportunity to once again support the legislation because I deeply regret that they've been unable to do that at this late stage.
SIMON
We'll come back to that a little bit later, but at the moment with Crown ownership as it stands what's to stop future governments selling off beaches, is there any guarantees?
MICHAEL
The government requires as it does under current legislation statutory approval for any sale of foreshore and seabed, that's not actually new that's in the current law. That is a great deal greater protection than a private owner would have in that respect and as you'll be aware from your own legal background at the end of the day nothing can stop any future parliament legislating anything and any attempt to do so by a current parliament is able to be rendered null and void quite easily by future parliaments.
SIMON
Asserting the rights of parliament. What are recognised customary activities, I mean if fish and shellfish have already been excluded by fisheries legislation what's left?
MICHAEL Well in fact I wouldn't say exclude, include is more accurate. The customary fishery rights are pretty much covered under the current legislation but there are some real issues around there in terms of implementation and effectiveness thereof and we've given undertaking to improve that, in the South Island not so much of an issue over most of it, but in the North Island it's still a very big issue.
SIMON
So what activities are there?
MICHAEL
But then there are the other forms of activities for example…
SIMON
Gathering of hangi stones?
MICHAEL
Well hangi stones is probably not a good one, I'm told that's not a very sensitive issue to raise but certainly there are active wahitapu sites on foreshore, there are certainly examples where for example there's waka launching rights across particular areas of foreshore and seabed regarded as a customary right continue to be exercised since 1840 down to the present day. We effectively will explore through the court process what those are but I think it is fair to say and I've heard no Maori disagree with this that the majority of those rights are in fact the customary fishing ones which are already included within legislation so people shouldn't imagine there's going to be a whole host of these things appearing out of nowhere they've never seen, because by definition if it's a customary right they should probably have been seeing it being operated at some point within the recent past.
SIMON
Let's have a look at the concept of ancestral connection, this gives Maori the right to consultation how is that different or extra to the rights conferred by the RMA?
MICHAEL
Well the RMA actually provides a floor if you like and even in the RMA there's a wide range of rights which are capable of being exercised, for example under Section 33 the Regional Councils have the power to devolve management to other bodies, and that's potentially a solution in cases like that of Ngati Porou where there is a high level of ongoing connection activity and management by Ngati Porou of much of the East Coast. So the RMA is the basis on which we move, what we said is that we'd also look at the current RMA provisions to see how we make them work more effectively, I think it's less - the law itself and making sure that the law can be implemented effectively for the satisfaction of all concerned both Maori and Pakeha, but what it does do with the ancestral connection is make it clear who it is holds the mana in terms of being consulted and that sometimes has been an issue in the past.
SIMON
We're gonna take a short break now, when we come back more questions for Dr Cullen.
PART 2
SIMON Before the break we were talking about ancestral connection and the consultation rights that gives, does the consultation requirement effectively mean that Maori will have the power of veto over proposed activities?
MICHAEL
No it doesn't. Where the issue of a veto arises in relation to a customary usage right, if the Regional Council determines that a particular proposal has a severe adverse impact on the ability to exercise that right and naturally enough therefore the right holder has primacy in that regard.
SIMON
Who determines that ….whether it's significant or not.
MICHAEL
Yes the Regional Council determines that but the consultation right via the RMA is not a veto right at all, it is precisely that a consultation right.
SIMON
Won't veto powers effectively allow Maori to refuse consent unless they're reimbursed thereby creating a charging regime?
MICHAEL
If we're talking about a customary usage right that could be the case and we've been quite clear about that from the beginning. I mean let's take the example of launching the waka where clearly a local group has had that right doing it in a particular place and somebody wants a second jetty in precisely that place and the sensible thing is for them to perhaps stick the jetty somewhere else in the same bay if possible, but if that's the proposal then it's legitimate for them to have to negotiate that with the holder of that right in the same way that any other property holder right holder, and this is the property right we're talking about, the property right holder has the capacity to exercise that kind of power when somebody else can do something which has a severe adverse impact.
SIMON
And with regard to ancestral connection?
MICHAEL
Ancestral connection no, that is not a veto power it's a consultative power. Now of course when we get to issues around redress if there's a High Court case then there might be a higher level of involvement at that point but I would still be very reluctant to concede that people have veto powers because that's contrary to the overall responsibilities of the Regional Council.
SIMON
So a negative reaction from Maori in that instance with ancestral connection can still be overcome?
MICHAEL
Yes it can it's not a veto power it's a right to be consulted, be involved in the process.
SIMON
With regard then to the customary rights where the veto power exists how do you avoid another North Waikato Prison situation whereby you know you've got millions of dollars of consultation fees being paid?
MICHAEL
Well I think we've gotta be clear about what we're talking about, although we don't know the exact nature of all customary usage rights, what we can say is they're going to be limited in the extent and area, they're going to be specific to certain people in certain places doing certain things, often at certain times not continuously but at certain times. In that case I don't think that kind of possibility really arises, what does arise is the possibility as I said that where somebody wants to do something which is really completely contrary to the exercise of that right has a severe adverse impact, then naturally enough the right holder - right holders will be able to enter into negotiations if they want to and monetary payment may be part of the that or equally the proponents of the development may have to think of somewhere else they want to do it, and perhaps not choose that particular place to do that particular thing.
SIMON
Assuming as is intended the Crown does get ownership of the seabed will it therefore as landlord effectively look to earn revenue from activities like marine farming?
MICHAEL
The aquaculture issue is a separate one which is being worked on at the present time.
SIMON
What about the Crown's intention to get revenue from its Crown ownership though?
MICHAEL
It's not seen as a mechanism for raising revenue, there are certain aspects of laws at the moment where the government can extract resource rentals and don't forget that the Crown is already in law the owner of the foreshore and seabed, the question's whether it's the full beneficial owner of the foreshore and seabed and the bill does clarify that point, but we're not doing this as a means of raising revenue, we're doing this to provide greater certainty and assurance to all New Zealanders about the legal status surrounding foreshore and seabed while recognising that there are specific rights there plus that longstanding ancestral connection which gives status to particular Maori. What I'd add to that what's often forgotten it is to particular Maori, I mean if we're talking about a customary right that's say a group of Ngati Porou have in a particular place and Ngai Tahu Maori has no more rights or position in relation to that than an English born New Zealander like me. It's not a right for Maori in general it's a right for particular Maori.
SIMON
Let's look forward to the introduction of the bill itself, who at the current moment do you understand in the Labour caucus will not support the government on this?
MICHAEL
I think it is likely I mean we have to have final confirmation on this but likely that both Tariana Turia and Ana Mahuta will not be supporting the bill. It's not entirely clear whether they'll be seeking to abstain or to cross the floor and that's a matter that they'll come back to the caucus and discuss, and Georgina Beyer seems not to be supporting the legislation.
SIMON
Aren't you in a sense being politically blackmailed can we expect to see more of cosying up to Winston Peters?
MICHAEL
Well the reality of MMP speaking as one who didn't vote for MMP on the referendum some ten odd years ago is that governments don't have absolute majorities as they used to for a single party, so everything in legislation these days is a matter of negotiation between Labour in the first instance with the Progressive Party our coalition partners and then with other parties and normally that's been primarily with the United Future and the Greens, but on occasions with other parties, New Zealand First for example was crucial to the introduction of the New Zealand Superannuation Fund.
SIMON
That MMP reality you referred to saw Peter Dunn dumped in favour of New Zealand First, how stable is United Future's support for you now?
MICHAEL
On confidence and supply that is stable, I mean Peters is a man of honour is not going to backtrack on that agreement. I think it is regrettable that we got to that point because we'd had good faith negotiations and discussions for a period of months, United Future had been staunch in support of the general concepts, it's unfortunate it broke down on a couple of words with no particular legal meaning in the government's view, so as I said the hope is that the Select Committee can find a formulation that both New Zealand First and United Future can live with and I'm sure that Peter Dunn would be very happy if that was the case.
SIMON
Let's look at the political ramification of the Maori vote. The nationwide hui were fairly unanimous in rejecting the proposals what are you planning now to shore up that Maori vote?
MICHAEL
Well in fact it hasn't seem to have affected our support amongst Maori.
SIMON
So you polling is high?
MICHAEL
Polling is still high I mean we're still clearly the largest party amongst Maori in terms of support and New Zealand First which is supporting the bill is clearly the second largest party in terms of support amongst Maori. There is I think a large silent grouping, I wouldn't necessarily say majority amongst Maori who actually are generally supportive of the thrust of the legislation and as I think we talk it through it becomes clear we're talking about the foreshore and seabed only, does not affect Maori owned land that runs down to the foreshore, does provide avenues for Maori to explore both customary usage rights ancestral connection and in the case of some people the capacity to explore whether they would have been able to get territorial customary rights and the government had to engage in redress around that, and I think there maybe some shift in opinion but this is a deeply emotional issue for many Maori.
SIMON
It is a deeply emotional issue I mean it's sparked emotional and often hostile reactions from Maori and non Maori alike, I mean how delicate are race relations right now?
MICHAEL
Well this issue has not made race relations easier, because it is an issue which has tended to pitch many Maori against and many Pakeha in terms of the fundamental assumptions and where they're coming from but to some extent we're talking about different concepts and different concepts of ownership and as Lady Rahamahuta said at a meeting we had during the week with the Tainui executive the Maori view is the land is me and we Pakeha tend to say the land is mine, and really what the government's trying to do in this legislation to the best extent possible is recognise those two quite different concepts of ownership.
SIMON And that is the key to the difference isn't it I mean it's understanding.
MICHAEL
Yes it's partly around understanding and partly also being mature enough as a country to be able to encompass those different concepts within a workable and working relationship.
SIMON
On both sides.
MICHAEL
On both sides and that's not easy as you say it's deep emotions on both sides.
SIMON
What opportunities for redress will there be for Maori who find their previous entitlements have now been removed?
MICHAEL
Right and of course that one is in relation to the ability to go to the High Court for a declaration territorial customary rights or on the technical legal language aboriginal title. The redress is open for negotiation and we don't want to put prior limits on that because it's not appropriate if you're going to negotiations in good faith, but I would see most of the solutions being around issues of how the area is managed, strengthening consultation processes in that case, recognition of mana and status and other matters which may come into play. I don't see money as the sort of first port of call, I don't think most Maori would see that as the first port of call either, I think many would see that as to some extent trivialising the issue of that connection.
SIMON
How important then with all this in mind is the Treaty of Waitangi with two versions isn't it always going to be an impediment to harmony?
MICHAEL
It may be an impediment in some respects it's also a mechanism for achieving harmony in other respects, it depends how much people are prepared to act in good faith. There are some Maori who take what's called a sovereigntist position, it's not only was sovereignty not conceded by the Treaty, I actually think there's some justification for that view but it also never has really been properly acquired if you like since and that Maori still retain if you like sovereignty, the government - no government in New Zealand's going to be able to accept that view, in our view sovereignty has been a reality since 1840.
SIMON
That's the tinorangatiratanga argument, do you believe that gives Maori a special status within New Zealand though?
MICHAEL
Does the Treaty give Maori special status.
SIMON
To tinorangatiratanga in particular,
MICHAEL
Well I think the Treaty gives special status in terms of certain rights and interests which the Treaty guarantees are protected and the government cannot unilaterally abrogate that treaty and say well we're not any longer interested in this.
SIMON
Dr Cullen thank you very much for your time today.
MICHAEL
Thank you.
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