Is the dream of a Kermadec marine sanctuary now dead? And if so, who killed it off? Or can a solution still be found?

The current battle over the Kermadec marine reserve sanctuary can be characterised as a struggle between the values of environmentalism and Treaty rights. With the National Government announcing that the sanctuary project is now on hold, it seems that the values of Treaty rights are winning the battle. This is particularly apparent from Nicholas Jones' article, PM John Key: Kermadec sanctuary will be put on ice if no agreement with Maori Party.

According to this, "Prime Minister John Key has now effectively confirmed the Kermadec Marine Sanctuary will be put on ice indefinitely if an agreement with the Maori Party over fishing rights cannot be reached." Key explains further that he'd prefer to put the project on the backburner than risk instability: "We are not about to go and do something that is going to cause the Maori Party to walk away. If we have to wait a while, we have to wait a while." As Jones says, "It is the clearest statement so far from the Government that it will put the sanctuary on ice at least until after the election over the fraught issue of Maori fishing rights."

At the centre of the dispute is the protest from the Maori Party and Te Ohu Kaimoana. They assert that by establishing a new marine reserve Maori will be banned from fishing there in the future, which would be a denial of previous Treaty fishing settlements.

Can a solution to the Kermadec stalemate be found?

Conservation Minister Nick Smith has spent months attempting to come to agreement with Maori fishing interests, but has clearly failed. So could another negotiator succeed? Bill English has taken over as the main representative of the Government on the issue (alongside denials that Smith has been demoted) - see Katie Bradford's Environment Minister denies being sidelined over Kermadec Ocean Sanctuary talks.


Can English find an elegant solution which adheres to both Treaty and environmental values and aims? There is reason to believe that the two goals are mutually exclusive - either the environmental values will win or Treaty rights will prevail. But many politicians and groups suggest otherwise.

Interestingly, one of the most optimistic voices about National's ability to find a solution is Labour leader Andrew Little, who said this week: "I do not believe when they have a Treaty Negotiations Minister as talented as Chris Finlayson that they cannot come up with a creative solution to the issue" - see Katie Bradford's Environment Minister denies being sidelined over Kermadec Ocean Sanctuary talks.

There seems to be some idea that the Maori concept of "Rahui" - or "self imposed fishing restriction" could be agreed to by Maori - see Felix Marwick's Rahui a possible way out of Kermadec impasse. Previously, Nick Smith has argued that such agreements would undermine the sanctuary's integrity.

In the end, it's likely that if a solution can be found it will involve money or some other compensation to iwi. And law professor Alexander Gillespie has argued that compensation must be given: "Strong caution is warranted if there is no co-operation. Property rights for all people must be respected and appropriate compensation offered if they are removed, whether they be in conservation areas or not. Given the legacy for why Maori were given these quota in the first place - for wrongful transgressions by the Crown in taking their property - the need to act appropriately is uppermost" - see his article, Co-operation key to making Kermadecs our Galapagos. In this piece, Gillespie also makes the case for the importance of the sanctuary, and explains why there's a global movement towards such reserves.

It is notable that even back in March the chair of Te Ohu Kaimoana, Jamie Tuuta thought it could be "highly likely" that compensation would resolve the grievance - see Rosanna Price's Kermadec ocean sanctuary: a 'dangerous' precedent for Maori rights?

Certainly Bill English appears to be more open to concessions being made. According to Nicholas Jones, English has softened the government's language around the dispute after fronting a media interview on the issue this morning. Environment Minister Nick Smith was more combative in his comments last week - saying he would not change how consultation on the sanctuary was carried out if he had the time again. This morning, English said the government likely would do things differently. "I think if you did it again, you might do it a bit differently," he told Radio New Zealand." - see: Concessions needed on Kermadec sanctuary - English.

Claire Trevett also emphasises that a solution is possible: "The possibility is an agreement that leaves the fishing rights intact but sets out an iwi agreement not to fish in the area until a review of the status of the sanctuary in 10 years, as Te Ohu Kaimoana wants, or 25 years. That puts the future of the sanctuary in the hands of a future Parliament. It is not ideal, but political reality suggests it is unlikely the sanctuary status would be lifted" - see: Key dodges Maori Party bullet over Kermadecs.

Trevett also points out that the Prime Minister has changed his tone considerably over the matter, and the bold language of not backing down had disappeared.

Is the Kermadec sanctuary just on hold, or actually now dead?

There's a good chance that the Kermadec proposal is effectively dead for the foreseeable future. The Government is already stressing how long it might take to find a compromise solution. Some are taking this to mean that the Government will hold negotiations over the next few weeks or months and come to agreement. But it's quite possible that the issue has actually been "kicked into touch" and effectively put off either well into future years, if not completely buried forever.

After all, it's not merely a question of the National Government carrying out better consultation. As Key has said, it's not a matter of lack of consultation holding back a solution and "he did not believe consultation with Te Ohu Kaimoana before announcing the sanctuary would have made much difference" - see Nicholas Jones' PM John Key: Kermadec sanctuary will be put on ice if no agreement with Maori Party.

Also, according to this article, Key "said Te Ohu Kaimoana fundamentally disagreed with ocean sanctuaries and believed the quota management system was the better way to manage fisheries, whereas the Government believed a mix of both was appropriate."

With the Kermadec sanctuary on ice indefinitely, would there be any strong public reaction if there is a realisation that the project has been abandoned? Chris Trotter sees "the potential for a devastating Pakeha backlash - see his column, In the Kermadecs stoush, some fish are best left uncaught.

Here's Trotter's main point: "Abandoning the Sanctuary would also inflame the already raw feelings of National Party's more conservative supporters. Not because they are the world's most strident environmentalists, but because they would interpret Key's 'surrender' as proof that the Treaty of Waitangi now constituted 'superior law' - i.e. capable of preventing the Crown from over-riding its provisions. Quite rightly, this would be viewed as a radical recasting of New Zealand's unwritten constitution."

Trotter therefore advises that Te Ohu Kaimoana should be more willing to compromise, thereby helping the Kermadec sanctuary be established. Otherwise, the potential for "a 'Kiwi versus Iwi' themed snap-election" could eventuate in which National and Pakeha hostility to "Treaty issues" might prevail. This could turn into New Zealand's Brexit moment.

It's for this reason that The Press newspaper urges that Talks about controversial Kermadec sanctuary must keep going. The editorial warns that a breakdown of agreeable progress "now threatens domestic harmony, nationwide political unity and our international reputation."

But do New Zealanders really care that much about conservation? The NBR's Rob Hosking isn't so sure: "Marine sanctuaries and strutting New Zealand's environmental credentials overseas get people very excited in the glades of Titirangi, the lifestyle blocks of Clevedon, and the fashionable, $2 million renovated villas of Grey Lynn. It tends to get them less excited in Te Teko or Murupara" - see: Kermadec row opens up fault lines on both sides of politics (paywalled).

Problems for National

Rightwing political commentator Matthew Hooton is most interested in blaming Nick Smith for the Kermadecs failure: "the truth is that everything Dr Smith touches is a disaster. He has survived in politics this long only because of Finance Minister Bill English's misplaced sense of loyalty to his friend from the 1990 parliamentary intake. Twenty-seven years later, it's time for Dr Smith to try something else" - see: Time's up for Nick Smith after Kermadec fiasco (paywalled).

But Hooton's problem with Smith aside, he actually has a more serious explanation for what has gone wrong - it's due to the obsession politicians have with the United Nations and the attempt to grandstand on the world stage. Hooton explains how the half-baked announcement of the Kermadec sanctuary came about last year: "With Mr Key keen to have something headline-grabbing to talk about at the 70th session of the UN General Assembly last October, the government's chief energiser bunny, Environment Minister Nick Smith, popped up with a 620,000 square kilometre marine sanctuary around the Kermadec Islands. As Mr Key then boasted to the UN, the sanctuary would be one of the world's largest, twice the size of New Zealand's land mass. The problem is that, in his enthusiasm to please his boss, Dr Smith forgot about the interests of those holding fishing quota, including that granted to iwi under the historic 1992 Sealord deal which kicked off the treaty settlement process, and about the government's relationship with the Maori Party."

Similarly, according to the Herald, there is reason to believe "that ministers bowed to foreign pressure to create the vast protected area" - see the editorial, Trouble over Kermadecs of Govt's own making. And in blaming National for a lack of consultation and planning, the editorial also points out that the Kermadec announcement was made "even before John Key informed his own caucus."

Vernon Small also suggests that the PM needs to learn a lesson: "before you grandstand on the world stage, make sure things are sorted at home" - see: Key must shoulder his share of the blame for Kermadec ship wreck. Small is amazed that Key didn't see the parallels with Labour's ill-fated Foreshore and Seabed legislation: "when it comes to Maori anger over the lack of consultation, the prime minister must shoulder his share of the blame. He must have known - or should have known - there was no consultation. Did he need reminding of the foreshore and seabed, the legal stoush over state assets sales and talks over fresh water?... Despite the Government's attempts to distinguish it from the Kermadecs question, there are clear parallels. Both over-ride an existing right."

Newshub's Lloyd Burr is even more incredulous: "It's unfathomable the Government thought it could get away with creating an ocean sanctuary in the Kermadec Islands without consulting Maori. I cannot get my head around how much of a botch-up this has been - see: Govt can blame itself for Kermadec botch-up. Burr adds that the process has been "insulting to the Treaty of Waitangi, with a reckless disregard to the settlement process. It is a disaster. And it's not going away. And the Government can only blame itself."

Finally, for some social media commentary on this environmental-Treaty issue, see my blog post aggregation of Top tweets about the Kermadecs sanctuary.