Finlayson on The Nation

A very interesting interview of Chris Finlayson on The Nation at the weekend.

DUNCAN Well what is actually wrong with Mr Harawira’s idea of effectively Maori title, inalienable, you can’t sell it, absolute public access to all New Zealanders, what is wrong with it, is it just that it’s not politically viable for you?

CHRIS Well I think we agree on a lot of things, we agree on inalienability, we agree on public access, what I’m simply saying is that public domain provides a useful starting point, if you were to say absolute Maori ownership, I think the question that would inevitably arise Duncan is, well which Maori, which iwi, which hapu, and I think there could be a lot of cross claims, so I think that the proposal that we’ve put forward is a more sensible way of dealing with it, but look I’m out listening to folk and I’ll see what they’ve got to say.

A nice rebuttal pointing out why the idea of outright Maori Title is a bad one. I also think it is bad because there it would also take us massively beyond what the Court of Appeal said.

DUNCAN I just want to drill down into the report which came out last week about customary title, clearly the government wants to award customary title, let the courts have a look at it at least. What is customary title?

CHRIS There is absolutely no law on customary title in New Zealand, it’s a very vague concept, so what we’re saying is it’s a constrained form of property right, it doesn’t inhibit public access, it’s unable to be sold, there could be a title issue but not under the Land Transfer Act which deals with land, and so we’re not talking about that type of title, but a title could be issued under this legislation, and there’ll be rights to develop and so on, so it’s if you like a constrained property right, which will be available to those who can establish that they’re entitled to it.

Again a nice way of describing customary title – a constrained property right.

DUNCAN So would it allow for instance an iwi with a customary title say in the Bay of Plenty to do a partnership deal with if you like the Chinese government who come forward with a 100 million dollars and say we want to build a number of resorts on your land, lease it to us over 100 years, would Maori with customary title and iwi be able to get away with that?

CHRIS Oh yes but they’d be subject to the Resource Management Act and subject to the other if you like general pieces of legislation, it’s not proposed that this would be a sort of a self governing entity once it was established, so any kind of development would be subject to the usual RMA principles.

This part has got a few people talking, but people should note a number of key things. The first is any development could not be done on beaches – only on the foreshore which is the area between high and low tide.

The second is that as there is no right to block access, building a resort would be very very difficult. And thirdly one would still have to pass the RMA hurdle which would be massive if it was proposed for an area of popular frequenting.

The key thing Chris made clear is that Iwi can use customary title for commercial purposes, subject to the RMA. And this is no surprise to those who have followed the issue, as it has always been about commercial development to some degree – back to the original court case.

CHRIS Well there are two classes of minerals I think we have to talk about, because pre 2004 petroleum had been nationalised, in fact was nationalised by the Labour government in 1937, silver and gold and uranium have always been nationalised minerals, so then there are the other minerals, you’re quite right that that is an issue that I imagine folk are going to want to raise with me, and I’m listening to what they say, and I’m also talking with Gerry Brownlee about that issue.

DUNCAN So are you effectively saying here this morning that you perhaps are willing to compromise around that minerals issue because it’s quite important to Maori, well certainly the Maori I’ve spoken to.

CHRIS Oh I think the socalled traditional reserved ones, Gerry’s already said are off the table, I’m prepared to hear what folk have to say in the course of my hui and public meetings, and then I’ll report back to the Cabinet.

DUNCAN So you’re not ruling out a possible compromise there are you, because right now as we look at your proposal it basically repeals and holds on to that, so you’re not ruling out a compromise with iwi after this series of hui?

CHRIS Oh I’m saying that I can rule out petroleum, uranium, silver and gold, I’m prepared to listen to other people on those other minerals.

Ruling things out in advance of consultation tends to be counter-productive. That does not mean the Government has agreed to them. Also worth noting that this is not about minerals in the entire seabed – only in areas where a claim to customary title is accepted.

What would be interesting is what minerals, outside the four excluded ones, are in the seabed?