Editorial: Foreshore saga is far from over

OPINION: Four months after a ministerial review panel recommended the repeal of the Foreshore and Seabed Act, the future of the controversial law remains up in the air.

A Government response, first due in August, then this month, has been delayed again. It is now not expected until some time next year – at the earliest.

John Key's Government is clearly finding the issue as difficult to deal with as its Labour predecessor.

That is hardly surprising. Despite the reassuring utterances of Maori Affairs Minister Pita Sharples, who welcomed the review's findings with the words, "Yay, we have won access for Pakeha to the beach," the issue pits the interests of Maori and Pakeha against each other in ways that cannot be resolved without winners and losers.

The interests of Pakeha are in retaining free, unimpeded access to beaches and coastal waters, something non-Maori, as well as Maori, regard as a New Zealand birthright. The interests of Maori are in securing title to the coastline and seafloor and the ownership privileges that come with that title.

With the benefit of hindsight, it is now apparent that Helen Clark's government was wrong to strip Maori of the right to test their claims in court. Its panicked response to a Court of Appeal finding that Maori might be able to establish title to discrete parts of the coastline and the ocean floor was wrong in principle and wrong in practice.

It gave rise to a widely held view in Maoridom that, but for the passage of the act, Maori would be able to prove title to the entire foreshore and seabed. That is not the case, and never was. In its landmark judgment, the Court of Appeal indicated that Maori claimants would have to demonstrate continuous use of the foreshore and seabed stretching back to the 1840 signing of the Treaty of Waitangi, an extremely high hurdle to clear.

But the recommendations of the review team, chaired by former High Court judge Edward Durie, are equally flawed.

It recommends that a possible right for a few be deemed a certain right for many and that negotiations between the Government and Maori start from the basis that hapu and iwi with traditional interests in coastal waters be deemed to have "some form of customary or tikanga title to all of the foreshore and seabed".

That does not reflect the Court of Appeal findings and, regardless of the soothing words that accompanied it, is a recipe for division and another round of Treaty claims.

The Government should go back to first principles. Its predecessor was wrong to strip Maori of their right to test their claims in court. That right should be restored. If any claims are successful, the Government should enter into negotiations with the successful claimants to uphold Maori mana and secure continuing public access to the coastline. There is no need to start at shadows.

Alternatively, Dr Sharples could be given the opportunity to try to build support among Maori and Pakeha for a solution, something that he appears to believe is achievable with goodwill on both sides.

If he is able to succeed, he will have earned the thanks of Pakeha as well as Maori.

- © Fairfax NZ News