Why the Maori party can take heart

The big news last week was not Darren Hughes’s dalliance. It was the passing of the Marine and Coastal Area (Takutai Moana) Bill. Hughes is ephemeral. The indigenous rights push has a way to go yet. Iwi are here to stay.

The big buzz around Hughes last week was how ephemeral Phil Goff is. The real 2011 worry for Labour is whether its vote goes down or up on November 26 and whether changing to someone — anyone — else makes it less likely to go down or at least likely to go down by less. That anyone else has to be prepared to be expendable if the result is still bad.

This is much the same calculation Labour did close to the 1990 election, dumping Sir Geoffrey Palmer for Mike Moore. Labour decided (according to then Deputy Prime Minister Helen Clark) Moore would lose fewer seats (actually, it probably made little difference). Moore was left as leader to fight a second election but dumped smartly after that second loss.

Bill English foolishly fielded National’s 2002 hospital pass, presided over a bad result (though it looked much worse than it really was in fundamental terms) and locked himself out as leader.

But, aside from entertainment value and the fact that most people relate to politics by way of personalities, who leads Labour and who is education spokesperson pro tem will not divert the deep currents of history. And that is where Tariana Turia and Pita Sharples have been swimming.

Turia said, moving the contentious bill’s third reading: “It is, after all, about our struggle for survival; the reconciliation of kawanatanga with rangatiratanga; the long-term plan 100 years from now.”

Turia will then be gone except in memory, Clark will be an item of history and Darren’s dalliance lost in the mist.

Turia claimed differences among Maori over the new law is “not about the what (but) about the how”. Included in the “how” is “how long”. Opposition to the bill is of two main intermingling sorts: impatience, a characteristic of activists which often puts them at odds with iwi and hapu leaders; and the belief that colonisation and colonial law did not extinguish customary “ownership” and the foreshore/seabed remains the property of iwi and hapu (some add whanau) and the new law still amounts to confiscation.

Add the fact that the bill passed by the barest of majorities. That would normally guarantee a future government revisits it, as was the case with the 2004 act.

But both major parties are relieved to see the back of the issue, even if for National — and the Maori party — some grumpy supporters might detach their votes and ACT, New Zealand First and Hone Harawira are pitching for those votes. To head that off, expect National to heavily emphasise that the new law doesn’t change the old law much and the Maori party to emphasise that it does make substantive changes.

Beyond the election — maybe starting before — will come bids for talks with the government for deals for customary marine titles. National is likely to operate by the new law’s narrow principles, which in effect disqualify nearly every iwi, hapu and whanau. Then some will take their bids to the courts. It could be some time before the letter of the new law is inked in.

But even then, this matter will not be laid to rest. In Turia’s longer term, though well before her 100 years is up, it is likely to come back on to the political and legal tables.

Look at the past 30 years history of responses by the government and courts to indigenous rights. Governments have gradually become more accommodating to Treaty of Waitangi-based requests and wider claims, to a degree near-unimaginable in 1985. Courts have also, case by case, given more weight to the Treaty and indigenous rights.

The logic of this is that the tough conditions for customary title in the new legislation will be softened or chipped away over time, with reference to particular facts or to other parts of the act or other acts or the Treaty or natural justice or the evolution of public attitudes and custom.

The same applies to the Declaration of the Rights of Indigenous Peoples. The government heavily qualified its accession to that United Nations instrument to the point, in effect, of nearly nullifying major elements. But a future government might well de facto soften the caveats.

And the courts, in interpreting domestic law and deciding difficult cases, have paid attention to international treaties and United Nations instruments the government has recognised or signed up to and imported elements into New Zealand law.

Over time, if history proves a guide to the next 30 years, expect the qualifications to be qualified.

So the Maori party has got both less than it asked for and more than its Maori critics allow. For those iwi, like Tuwharetoa, who have long played the long game, even a small plus is a plus. (The Chinese, also long-game players, would agree.)

The rest of us live much more in the moment. Which is why Darren’s dalliance was far bigger news last week.