Shoring up the facts

Those Who Call Out Misinformation Must Hold Themselves to the Same Standard

The recent Hobson’s Pledge advertisement published in the New Zealand Herald on 7 August ignited a furious controversy, particularly over its claims regarding customary marine titles and their impact on public access to New Zealand’s beaches.

The advertisement has drawn sharp criticism from a large number of mostly left-leaning lawyers, scholars, and legal organisations, who have issued an open letter denouncing the ad. They claim that it "is likely to mislead, deceive or confuse consumers both explicitly and by implication, ambiguity, exaggeration and false representation. It is also likely to also fuel racism against Māori."

Hobson’s Pledge, however, has stood by its advertisement, responding that its critics had offered no “evidence or even specifics of what exactly we have got wrong.”

Who is right? Are there legitimate differences of opinion here? Or is one side lying? Is there is a mix of truth, opinion and mischaracterisation across the board?

I think the only way we can look at this is by breaking down the claims in the advertisement and the claims in the open letter (including its claims about the advertisement).

Important but futile note.

We will not here delve into whether the substance of Hobson’s Pledge's view is correct. However, to the extent that it matters, my position is that it is not, and that issues with judicial overreach in the interpretation of the customary marine title legislation can be addressed prudently and discreetly without breaking faith with the original compromise underpinning the existing framework.

Additionally, this article will not address whether it is wise for the Herald to accept this and other advocacy advertising and place it on the front page. Again, for what it’s worth, my view is that this is not wise.

Not all columns have to be all things to all people. What we are looking here is the content of the advertisement and the response to it.

“Restoration” of Public Ownership

The open letter claims that the advertisement called for the “restoration” of public ownership of the foreshore, which is misleading because, the letter says, the foreshore has never “historically” been in public ownership, except for areas currently in private hands.

It is true that the advertisement advocates for the "restoration" of the foreshore and seabed to public ownership. This does imply that the areas were once public but are no longer.

Even if we accept that the foreshore was not in public ownership for most of New Zealand’s history, this was changed by the Foreshore and Seabed Act 2004. This statute said the foreshore and seabed were under Crown ownership, effectively making them public property. This law was, of course, repealed in 2011 and we now have the Marine and Coastal Area (Takutai Moana) Act 2011.

Hobson’s Pledge has long campaigned against the new law. Therefore, the term "restoration" in the ad likely refers to the restoration of the 2004 legal framework. Even if you don’t support that, it’s hard to see how any misinformation is involved in simply calling for it.