Hard News by Russell Brown


So the movement associated with the hikoi has genuine momentum: that's clear. What's less clear is exactly what the marchers want, and whether they all want the same thing.

If the belief regarding the key issue (the government's response to the Appeal Court decision on the foreshore and seabed) is something like that of the Treaty Tribes Coalition - accepting that freehold title is unacceptable to the majority of New Zealanders, and thus politically undeliverable, but that any government intervention in the public interest should take place after due process in the courts and not before - then the gulf in expectations might be manageable.

After all, Maori will have the right to explore their rights in the Maori Land Court and, if desired, the High Court. The government has explicitly left open the potential for compensation in such cases as the courts find that the customary right of a particular group would have amounted to freehold title - had not the government already legislated to remove that possibility by taking the foreshore and seabed into Crown title. (The scary T-word - "title" - has disappeared from the current version of the legislation, replaced by more soothing talk of "ancestral connection" and "customary rights".)

The problem for any Maori claimants is that in taking their cases, they'll be laying out a great deal of money to, probably, gain relatively little that they don't already have. It may or may not prove the case, as Stephen Franks says, that they will gain customary rights with which they can do little other than annoy their neighbours.

But if the predominant belief is that of the Tainui representative of the hikoi who appeared on Holmes earlier this week and declared - I hope I'm paraphrasing appropriately - that all Maori, as an ethnic group, had "tipuna rights" to the whole coastline, and that the rest of us could only venture there with their permission, than I can't see a chance in hell of resolution.

Ironically, this kind of talk resembles the National Party's unfortunate caricature of the situation (and they're still wilfully misrepresenting it - check out this week's press release from Nick Smith, which, on my understanding of the proposed law, is flat-out baseless fear-mongering) more than it does what the Appeal Court actually said. There is simply no sense in which Maori as a group have sweeping rights to the coastline.

For a start we're not talking about the coastline itself, or even the beach above the high tide mark, but as John Tamihere puts it, "the bit that gets wet at high tide, and the bit that stays wet."

Customary title, if it was found to exist at all by the courts, could be claimed not by Maori as a whole, and not even by iwi, but by small local groups - right down to the whanau level - who can show continuous use of a particular area of foreshore since before 1840, when the Treaty of Waitangi was signed. (The proposed legislation also allows Pakeha to explore their rights on the same basis, but it's far from clear whether anyone will actually qualify in that respect.) It seems that Maori around the East Cape have most to lose from the legislation, although Tainui has a strong interest in a harbour claim.

On a case by case basis, this might have been managed in a way acceptable to the bulk of New Zealanders: if we got a look at customary title in practice in one or two cases, all sides of the debate might be a little calmer about the implications. It could have been worked through.

But the Appeal Court decision suddenly made the issue national, urgent, and, to many people, quite frightening. It upset understandings that had pertained for decades. Access to the coastline is part of our culture. With all manner of alarm being sounded by the political right, the government felt itself with little option but to explicitly guarantee two things: no freehold title, and no exclusive right of access.

Would it have been better to seek the same safeguards at the other end of the process? Yes. But hindsight is a wonderful thing.

Meanwhile, I think nothing has damaged the image of the Maori land Court so much as the appalling speech by one of its former judges Ken Hingston, who not only compared the Labour government to that of Robert Mugabe (isn't it odd the way Zimbabwe is conjured up at both extremes of the debate?), but slammed the government for legalising prostitution, banning smoking in workplaces, and preparing the Civil Union Bill. It was nutty: and I know he is, fortunately, retired, but my immediate, emotional response was that I was glad that not too much would be at stake if Hingston was any indication of the calibre of the court.

I have no idea what the response of New Zealanders will be to this week's events, but I find myself gloomy about the extent to which people are talking past each other. Perhaps it is time for a Maori political party, but it will probably fail if it's just a Tariana Turia personality cult. And it will certainly stumble if it comes to Parliament toting all the many and varied expectations expressed by the hikoi.