Hard News by Russell Brown


Right This Time?

Someone in the loop ticked me off yesterday for an unduly flip assessment of reform prospects for foreshore and seabed rights, based on the Maori Party's strike rate so far. Well, fair enough: I do want a lasting solution, and I believe that such a solution is more achievable now than it was first time around.

After reading IrishBill's post on The Standard this morning, hailing the restoration of "the right to a day in court" and musing that such a view "puts me in the odd position of agreeing with the Act party … at the time," I thought I'd remind myself what people did say in 2003.

I actually knew the answer, in Act's case: they were all over the place. Stephen Franks wanted Ngati Apa set aside, and urged his caucus colleagues to offer their votes to Labour if the government agreed to legislate over the decision. Richard Prebble implied that the government could simply declare that "no claim will be considered" for the foreshore and seabed (the following year, he told Parliament he was "upholding the rights of all citizens to go to court" and slated the government for passing "legislation that racially discriminates"). Ken Shirley had another take altogether.

On successive days, National issued statements declaring that "The Government must legislate to confirm Crown ownership of beaches foreshore and seabed. This is what National would do," then that it was campaigning "to ensure that the remaining foreshore and seabed was safeguarded for all, regardless of race, by means of legislation to preserve exclusive Crown title." Clearly, that word "remaining" was very significant.

I looked at the merry dance here at the time.

In July 2003, the Greens' Metiria Turei said this:

"One suggestion is that the Government is considering guaranteeing public access to the foreshore across Maori land, but with no change to the current limits on access across private land.

"If public access is the issue, the debate must also include access rights over private and crown-owned land. To exclude these properties from debate is to imply that Maori land is worth less than private or crown land.

"How can that be fair?

"Wide-ranging debate on the question of public access to beaches, involving all New Zealanders, is the only way to deal with the issue constructively.

The following month, this:

"The Greens support responsible access to the foreshore, which is compatible with Customary Ownership governed by tikanga Maori and the concept of public domain.

"The clearest example is Lake Taupo, where ownership of the lake bed rests with Maori but everyone enjoys recreational access.

"Customary ownership does not provide for the sale of land in the way that freehold title and western forms of property ownership do."

Yesterday, this:

"We have argued from the start that Te Ture Whenua Māori Act should be amended to make sure that the foreshore and seabed land can never be sold. This would address the public concern that this treasured land could be sold to private interests," said Mrs Turei.

You could certainly argue – as one Standard commenter already has – that any limit short of full alienable title for Maori claims is discriminatory, but Turei seems right to declare her party's consistency on the issue.

In August 2003, No Right Turn wrote this, under the headline 'A good start':

The government has released its response to the question of foreshore ownership, and predictably no one is happy. Maori who had their expectations raised by the Court of Appeal ruling are fuming at the thought of only getting those customary rights practised by their ancestors, rather than full alienable title. And the rednecks are unhappy because the government hasn't squelched those "bloody maaris" out of hand.

I had previously opined that any eventual solution was likely to be a damn sight more complicated than National's "beaches for all" rhetoric would suggest, and we're seeing it now. It seems that the government is planning to explicitly recognise usage rights as well as freehold title, and try and steer the Maori Land Court to granting the latter only in extremis. This seems fair enough, and it's not exactly an alien concept (well, at least not to those of us who have studied a bit of history... once upon a time usage rights were all people had, and often they had to give scutage or 40 days military service in exchange for them to boot). Meanwhile, Maori still get to pursue recognition of their rights through the courts (and, in extreme situations, get freehold title), and everyone still gets to go to the beach.

It didn't quite work out that way.

Meanwhile, on June 27, eight days after the Ngati Apa decision (I confess, I though there was an editorial on June 21 but there's no record of it) the New Zealand Herald began publishing a series of editorials that would eventually embrace more positions than a yoga manual. From Stealthy treaty extension had to be blocked.

The Appeal Court's decision was greeted with enthusiasm from iwi around the country. It is a declaration none will forget and its rejection by the Government will add one more grievance to the Waitangi litany. But the court's declaration could not be allowed to stand. It would have been yet another treaty extension by stealth.

The government promise to confirm the beaches in public ownership being hailed in the editorial did not, of course, stand for very long at all. But it was symptomatic of the panicky nature of the time.

I'm looking back at these not in search of a gotcha (for one, I don't think my own writing on the topic would fare very well under that sort of scrutiny) but to try and emphasise that the thinking was more complicated at the time – before all right-thinking people began simply declaring that Maori-should-have-their-day-in-court-end-of-story. As I/S notes above, some Maori interests were making some wild declarations back then too.

Steven Price's excellent August 2003 feature for The Listener captured the spirit of events:

But it's hard to believe that anyone did, such was the turmoil that erupted when the decision was delivered. Attorney General Margaret Wilson rushed to reassure everyone that legislation would be passed to “give clear expression of the Crown’s ownership of the foreshore and seabed”. Soon afterwards, at a hui at Paeroa, Maori declared that “the foreshore and seabed belong to the hapu and iwi”.

After an uproar from the Maori caucus, the government moved to a more consultative process, maintaining that it will find a way to recognise Maori customary interests and still preserve public access to the beaches, and insisting that this would not “extinguish” any rights. “Backdown!” howled National leader Bill English, and called for legislation to “confirm Crown ownership” of the beaches and seabed.

It's likely to get complicated again, and I still regard it as a possibility that the Maori Party will be undone or let down on the issue that led to its creation: a solution that satisfies Pita and Tariana will be a bloody hard sell to a section of National's core support. But this happened yesterday:

Indications the law will be axed comes after National's former leader, Don Brash, who revved up racial tension when it was passed, admitted mistakes were made under his watch.

"I think the National Party got it wrong. I think we should have in fact supported the right of iwi to go to the High Court," says Brash.

I'm even prepared to smile ruefully at David Farrar's airy declaration yesterday that "Labour did not need to panic and legislate," in 2003. Because we're all going to get together and make it work this time, right?

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