Hard News by Russell Brown


KIlling it will be the easy part

I've been trying, without any great success, to determine the precise implications of the Ministerial Review of the Foreshore and Seabed Act 2004. And I can't help but notice that I'm not the only one not quite getting a fix on it.

Even this slightly odd press release from Maori Party co-leader Tariana Turia, which manages to say that it's not about money, but "if Maori hapu and iwi lose their property to the government, should they not … be entitled to compensation?"

It was a few days before John Key declared that financial compensation was essentially off the table.

The review is also remarkably lukewarm on what many people thought was the key issue to emerge from the Ngati Apa decision in 2003: the right of iwi and hapu to test their customary rights to stretches of the foreshore and seabed in court. It canvasses the "judicial model" but declares that "[s]uch a process is likely to be protracted, laborious and expensive and could result in an unmanageable patchwork of litigation."

It favours a "mixed model" solution, that "takes as its starting point that entitled Māori do have some form of customary or tikanga title to all of the foreshore and seabed and that the public also have interests in access and navigation over this key area."

Does this, er, sound a bit like the Foreshore and Seabed Act, at least in principle? Why, yes it does:

We observe that the support shown for a new statutory regime implies general agreement with the government’s decision made in 2004 to introduce a new statutory regime."


One key problem in 2003–4, however, was not the concept of a new model as such but rather the timing and process chosen to implement it. To us the process of how a final settlement of this matter might be achieved from now on is almost as important as the substantive shape and content of that settlement."

I think this is an uncontroversial observation. Labour's panicky response deeply offended many Maori. But is simply playing nice going to settle the issue?

One of the two structures the review proposes is the creation of a "bicultural body" to sort things out by proposing "a legislative framework by which national and local solutions may be found to accommodate customary ownership, use and control, respectively." That'll be a barrel of laughs -- and some distance from that precious day in court promised by Ngati Apa.

The second suggested structure "focuses on achieving the same objective by regional and national negotiations directly between Crown and Iwi. To speed the process there are provisions for early district identification, early entity formation and direct reference of particular issues to the Māori Land Court (or to arbitration) if the parties so elect."

It seems entirely possible that Maori will end up with a lesser recourse to the courts than they currently have under the Foreshore & Seabed Act. But, as the authors say:

We observe at the outset however that those who spoke with us were so focused on establishing that the Act should be repealed that there was comparatively little debate on what should be done if it were.

It seems to me that this is a long, long way from over, and that John Roughan's happy conclusion that because the review panel recognises (if in a somewhat sniffy fashion -- would it have killed them to acknowledge that Pakeha may have developed feelings about our shoreline that run deeper than simply splashing about in the summertime?) non-Maori feelings about the beach as a recreational area, "A law can be written now with mutual respect," is optimistic.

On one hand, Maori may well be deprived of the thing they ostensibly desired -- a day in court. On the other, National's base is already rumbling.

I respect Chris Finlayson's ability and desire to bring, in the best possible sense, conservative values to bear on the issue of property rights. But the fact is that National's stance has previously been that the entire Ngati Apa decision should be legislated over without consultation or compensation, and that customary rights should be thus extinguished. You need only read any number of internet forums to conclude that many of its voters still believe that to be the correct course of action.

Doug Graham, whose judgement I also respect, has made soothing noises about the limits of customary title, and yet the review states that Maori "do have some form of customary or tikanga title to all of the foreshore and seabed."

Exactly what the Maori Party does will be interesting. Will its leaders feel under pressure to hail the Key government's solution as a victory -- even if it's not really what they want -- because victory provides the rationale not only for going into partnership with National, but for the formation of the party itself?

One thing's for sure. Killing the Foreshore and Seabed Act 2004 will be the easy part.

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