The Foreshore and Seabed Debate: Contrasting Visions of Equality and Rights

Abstract

This thesis will show that the important Foreshore and Seabed Debate that took place in Aotearoa/New Zealand from 2003 to 2006 was at its heart a conceptual and jurisprudential dispute between contrasting ideas of equality and rights. It will demonstrate that peoples’ arguments were based on deeper presumptions that are not easily identified in their public statements but reflect the foundations for their positions. It will show that different perspectives on equality and rights were found amongst a range of people, both Māori and Pākehā, from all sides of the Debate, and that it is possible to extract from their public remarks competing visions on matters of equality and rights, even if these were expressed in very similar terms.

The thesis is framed within an orthodox legal approach, which incorporates Māori Studies methodologies, to extract the major equality claims made during the Debate. It critically analyses these claims to determine whether or not they support the notion of separate Māori rights to the foreshore and seabed. Where such claims are supported, the sources of those rights are assessed, and this in turn involves some reassessment of the country’s sources of law. This thesis is therefore a specific study of the different perspectives New Zealanders hold concerning the legitimacy of Māori rights, and the proper sources of such rights.

Finally, this thesis will propose a way to settle the Debate. It will show that while the various theories behind the equality and rights arguments possess different dynamics, they also enjoy shared correlates and foundations. In exposing the different claims, a zone of potential compromise can be identified within which a suitable solution could be found. Such a solution is the product of substantive compromise, where the different equality and rights arguments are sufficiently close to allow the outlines of a potential solution to be drawn, wherein participants could trade off less essential equality and rights positions, but retain what is most essential to them. This possible solution is then used as a political yardstick against which to measure the likely success of the National-led Coalition Government’s Marine and Coastal Area (Takutai Moana) Bill 2010 that is currently before Parliament, whose passage seems likely, but at the time of writing is not assured.