16 Sep 2016

Govt seeks safe harbour over Kermadecs controversy

11:18 am on 16 September 2016

Power Play - The row over the Kermadec Ocean Sanctuary is not about getting the legislation over the line, it is about National allowing the Māori Party to save face and keep the two parties' confidence and supply agreement in place.

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Photo: NIWA

Negotiations between the government and Māori fisheries interests have broken down, with the next step action from the Māori fisheries agency, Te Ohu Kaimoana (TOKM).

A call from Ken Mair, as a director of TOKM, for the Māori Party to "walk away" from its deal with the National Party, and likening disagreement over the Kermadec sanctuary to "National's foreshore and seabed" put the cat among the political pigeons.

Mr Mair is a former Māori Party vice-president, and there is more than a little skepticism from some politicians about his comments, who suspect mischief-making as part of his motivation.

Regardless, the pressure is now on the Māori Party and National to come to a solution; retaining the sanctuary but delivering the Māori Party a "win", against accusations the government is extinguishing a Treaty of Waitangi right.

The Māori Party itself says it would equate to a Treaty right being taken away if the right of TOKM to fish in the Kermadec is removed, and furthermore that could set a precedent for the future.

There is also talk about this being a repeat of the Seabed and Foreshore debate, which wrought massive political upheaval, including the creation of the Māori Party itself.

09082016. Photo Rebekah Parsons-King. Caucas run. John Key.

John Key's government only has itself to blame for a lack of consultation over the Kermadec sanctuary proposal. Photo: RNZ / Rebekah Parsons-King

The last thing National would want is to enter into such a controversy, a year out from a general election with race relations still a delicate balance, and the Māori Party a present and potentially future support partner.

But it only has itself to blame for the lack of true consultation.

Prime Minister John Key announced the Kermadec Ocean Sanctuary with great flourish at the United Nations last year.

But a September 2015 Cabinet Paper from the Environment Minister Nick Smith,

pays mere lip service to the treaty issues; it describes the fishing quota held by the Crown and TOKM (effectively set at zero percent) as "an administrative quirk", and states no compensation should be given because with no fishing activity, there is no loss.

The paper goes on to say options would need to be "carefully considered" with TOKM, to ensure there is no "perceived or actual undermining" of the 1992 settlement.

It is obvious from the paper the government had no intention of consulting either TOKM, or the two far north iwi recognised as tangata whenua, before the Prime Minister's announcement in New York - it also came out of the blue for the Māori Party.

After ten months of subsequent negotiations between the Environment Minister Nick Smith and TOKM, agreement could not be reached about how to deal with the treaty issues.

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Nick Smith says if there are exemptions in place, it means the Kermadecs aren't really a sanctuary. Photo: RNZ / Alexander Robertson

Dr Smith, the most environmentally active member of the National Party caucus, takes a pure view of the sanctuary - if you start making exemptions it ceases to be a sanctuary.

He also says he was given "absolute assurances" by officials and treaty negotiators in 1992 when the fisheries settlement was passed that would not prevent the government from creating marine protected areas in the future.

He is willing to consider any plan, as long as the practical effect is there is no fishing in the Kermadec waters, and that is clearly spelt out in the law.

For its part, TOKM says even if it is not actively using its right to fish, it is still a Treaty, and property, right - a stance backed by one of National's other support partners, ACT.

The Māori Party has now been brought in as a broker at the request of the Prime Minister, which in itself shows National recognises the political risk in letting this spiral out of control.

It has already suggested a model used overseas where the rights of the indigenous people are maintained, but a "no-take" agreement exists.

Coral in part of the area that would be covered by the Kermadec Ocean Sanctuary.

The Greens will vote for the sanctuary even if that causes some tensions with its Māori MPs. Photo: Malcolm Clarke / NIWA

Compensation for the loss of the right to fish may also be a sticking point, with Dr Smith already having expressed his opposition.

The negotiations are likely to be led by a senior minister, someone like Bill English, because, in the interests of both parties, a solution will have to be found.

The government has the support of the Greens to pass the legislation. Even with that party's strong position on treaty issues in the last ten years in particular, it is, at heart, an environmental party.

The Greens will vote for the sanctuary even if that causes some tensions with its Māori MPs or supporters.

Labour, as a supporter of the sanctuary, is in a similar position and will manage any internal tensions with its Māori caucus - the last thing it needs in the lead-up to the election is to become embroiled in a racially charged debate and alienate its Māori vote.

National needs the Māori Party to give it a stable majority and voting options other than United Future and ACT.

The Māori Party would prefer not to walk away as it sees issues such as homelessness and poverty as driving reasons to stay in government, rather than championing the cause of - what some would see as - corporate Māori with commercial interests.