Waitangi Tribunal report “disappointing” - Cullen

Deputy Prime Minister Michael Cullen today described the Waitangi Tribunal report on foreshores and seabeds as "disappointing."

He said careful consideration would be given to a number of the matters raised by the Tribunal but rejected some of the central conclusions of the report.

"Those conclusions - particularly surrounding supposed breaches of the Treaty of Waitangi and the rule of law - depend upon dubious or incorrect assumptions by the Tribunal.

"The most important of these is an implicit rejection of the principle of parliamentary sovereignty. The Tribunal, in more than one place in the report, seems to assume that a clear statement of statute law - such as vesting of the title to foreshore and seabed in the Crown as is currently the case - can in effect be ignored.

“The report also seems to be asserting that if Parliament changes the law, as the government is proposing by removing the capacity of Maori to gain freehold title over the foreshore and seabed, it is somehow breaking the law itself.

"The power of Parliament to change the law is central to the exercise of sovereignty and therefore the contemporary exercise of Article One of the Treaty.

“This is particularly so when what the government is proposing is that the law should be changed to reflect the meaning that Parliament clearly intended it to have in the first place.

"The second serious error the Tribunal makes and which determines a great deal of its judgement is that the government's proposal does not include the recognition of customary rights as a form of property rights.

"That is simply not so. The government does recognise customary rights as property rights. We will make this clear in the introductory policy statement to the legislation.

“Much of the logic of the Tribunal’s report simply falls to the ground once that is made clear.

"The third assumption by the Tribunal, which is highly questionable at the least, is that the government is rushing the policy through and that there is no need for this.

"The first statement seems strange in the light of the fact that it is now already already nine months since the Court of Appeal made its decision. Legislation is not expected to be passed until near the end of this year.

“Dozens of consultation meetings have been held by government Ministers and backbenchers on the issue and considerable care has been taken working and reworking the details of the policy.

"With regard to the second part of the assumption the government does not agree that matters can be allowed to drift on, perhaps for many years, to an unknown conclusion.

“In the meantime great uncertainty will occur. There is a serious risk of injunctions to prevent any foreshore and seabed activity occurring. Already this is beginning to happen.

"The government does not agree with the suggestion that current proceedings should continue to the granting of freehold title to what could be substantial areas of foreshore and seabed and then legislate to take that title away even if in return for compensation. That is far more objectionable I would have thought in terms of interfering with due legal process.”

Dr Cullen said there were positive and constructive aspects to the report.

"The Tribunal does accept that what it calls the toolkit available to the Maori Land Court is inadequate to recognise customary rights short of granting customary land status. The government's policy also recognises that.

"The Tribunal also raises some important issues in relation to the proposed Commission, regional working groups, and the jurisdiction of the High Court. These and other matters will be taken into consideration in the government's final policy.

"The Tribunal has produced some very important analysis on tikanga and the general theory of customary rights. The government believes that a more balanced view of the government’s proposals would confirm that they are consistent with a great deal of these analyses.

"It is ironic that the major opposition parties are attacking the government for leaning too much towards Maori while some Maori and the Tribunal are saying the exact opposite. Perhaps that might suggest to a fair and independent observer that the government has it about right, “ Dr Cullen said.

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