The big quake was in 2003. There was an after-tremor last week but nothing broke. But lying under the silt is another faultline, ready to facture.
This is not about Canterbury. Last week’s column had to be filed before Saturday’s massive shock. Nothing can be added that hasn’t been said. Wellington dwellers have been reminded how precarious their perch is and have seen the huge cost in money, assets and personal wellbeing.
Humans have no power over the planet’s geology or weather. Humans have power only over what they can do. Engineers can mitigate the effects of earthquakes: none dead in Canterbury; around 230,000 dead in Haiti.
The 2003 quake was in human affairs, an Appeal Court decision ruling that iwi and hapu could go to court to seek title to foreshore and seabed. The National party, led by Bill English, ran brutal billboards saying other New Zealanders would not be able to barbecue on beaches. The Labour-led government legislated away the court ruling. The Maori party was born of the fury at yet another confiscation.
There was another aftershock last week: the replacement law reached Parliament. It will pass. The Maori party wants to revisit the issue later. So do iwi leaders. But for now — for a decade or two — this is the end of that 2003 disturbance.
The Greens say Maori have been short-changed, that the Maori party got only what it asked for, repeal of the offending law and a right to go to court to get “customary title” — a common law concept, not a Treaty of Waitangi one. But the conditions are essentially those the Appeal Court laid down and will be very difficult to meet.
A more promising route will be through direct negotiation, which was what Ngati Porou did, to good effect, under Labour’s law. Through negotiation the envelope is constantly being stretched: since Michael Cullen’s 2008 Waikato river deal claimants expect co-governance or co-management of waterways, which amounts to minor constitutional change. Farmers are seething about that.
Will a government 10 years hence baulk at a 50-year transfer to Tuhoe of Te Urewera? That bothers farmers far less.
The next earth-mover is WAI262, the faultline lying under two decades of silt.
WAI262 is the file name for the 262nd claim to the Waitangi Tribunal. It seeks hapu and whanau control over native flora and fauna, uses to which they are put and traditional practices and knowledge around them.
Joe Williams was chief judge of the tribunal in the latter stages of hearings which took from 1991, when the claim was lodged, to 2007. It took so long because these issues go to the heart of this nation’s identity and to what it is to be Maori.
Williams, now on the High Court, has yet to finish his report. He hopes to publish it this year. It would help John Key if he did because this is a bigger quake than the foreshore and seabed and Key won’t want aftershocks running through next year’s election.
There are two main dimensions.
One is intellectual property — stopping companies copyrighting or patenting plants and other “life-forms” and using Maori images and artworks in trademarks and the like. This has widespread implications for the food, beauty and medicine industries, here and abroad. It has implications for free trade agreements which typically now include intellectual property.
The other dimension, as James Matenga, a master of business student, put it at a seminar last Thursday, is “to re-establish our own values and law that works for us”, not to “be successful according to pakeha values and laws”. The “us” are not New Zealanders, nor even Maori. The “us”, according to fellow student Patrick Hape are whanau and hapu, each with unique knowledge and practices (matauranga maori) which are their property alone.
The government argued to the tribunal, Mataanuku Mahuika of Kahui Legal said, that exclusive rights to such knowledge could not be established because knowledge is in the public domain, that it was impossible to protect such knowledge (not to mention “practices”), that foreign countries were outside New Zealand’s control and might repudiate existing international agreements, that setting up a separate legal regime was too complex and that it was unclear what remedies were available.
Senior lecturer Aroha Mead asked: “Is it the Crown’s business or is it better to be in Maori hands? Is it even the government’s business to have a view on this?” She wanted “high-level policy negotiation with Maori.”
This is beyond the Treaty of Waitangi, to pick up the theme of Williams’ speech at the constitutional conference on September 2. WAI262 is a matter of indigenous rights, of which the Treaty is just one expression.
That was in fact where the Appeal Court took us in 2003. So, too, the Declaration of the Rights of Indigenous Peoples, which will have a longterm effect. The ground on which these issues sit has been shifting. Williams will shift it some more with his report. Watch to see what the political engineers will do.