Back to drawing board on foreshore and seabed

01:50, Aug 27 2009

I've just had a very quick read through the Ministerial Review of the Foreshore and Seabed Act 2004, which has been released under embargo until 3pm.

It's three volumes long and runs to hundreds of pages, but in a nutshell what is says is this: the Foreshore and Seabed Act is discriminatory to Maori and should be repealed.

Hardly a surprise, given the panel was hand-picked to provide just such a judgment by the Maori Party - indeed, Pita Sharples threatened to sack it if it didn't come back with such a finding.

The panel is savage about the Foreshore and Seabed Act, calling it "simply wrong in principle and approach'', discriminatory, and indeed so unfair to Maori that it considers that a Crown apology is necessary.

From the 600-odd submissions, almost all opposed the act, the panel deduces that it is "unpopular with most New Zealanders''. Personally I think that's unlikely, since those driven to send in a submission are unlikely to represent majority public opinion.

I've just had a very quick read through the Ministerial Review of the Foreshore and Seabed Act 2004, which has been released under embargo until 3pm.

It's three volumes long and runs to hundreds of pages, but in a nutshell what is says is this: the Foreshore and Seabed Act is discriminatory to Maori and should be repealed.

Hardly a surprise, given the panel was hand-picked to provide just such a judgment by the Maori Party - indeed, Pita Sharples threatened to sack it if it didn't come back with such a finding.

The panel is savage about the Foreshore and Seabed Act, calling it "simply wrong in principle and approach'', discriminatory, and indeed so unfair to Maori that it considers that a Crown apology is necessary.

From the 600-odd submissions, almost all opposed the act, the panel deduces that it is "unpopular with most New Zealanders''. Personally I think that's unlikely, since those driven to send in a submission are unlikely to represent majority public opinion.

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I actually think the vast majority of New Zealanders have ceased caring about this one way or the other, but I accept it is a big issue for some Maori.

Of more interest, though, is what the panel proposes now, and I have to say they've done a reasonably good job of laying out the options.

Basically, they range from allowing Maori their day in court through to a nationally negotiated settlement.

But interestingly, the panel does not favour going back to the situation before the act existed - i.e. allowing Maori to test their customary rights in court. That was what many opponents of the act wanted. But the panel says this is likely to be "protracted, laborious, and expensive'' and could result in "an unmanageable patchwork of legislation''.

I agree with them on that.

The panel recommends a national settlement that gives Maori customary title to the foreshore and seabed, alongside specific usage and access rights to local iwi depending on their claim. It says some form of public right to access and navigation also needs to be written in.

It says that in the meantime, an interim act of Parliament should be passed repealing the legislation, setting up the process for the new system, recognising both Maori title and public access issues, and allowing the Crown to hold legal title until the whole thing is settled.

It's not a bad compromise, I have to say, and I'm actually pleasantly surprised. I've said before that a return to court could be a nightmare for all sides, and the whole thing would drag on for years.

The big question is what the Government - and specifically the Maori Party - will do. I reckon John Key will be only too happy to accept the panel's recommendation that court be avoided, but I'm not so sure about Pita Sharples and Co.

Agreeing to that option would mean that a legal right to go to court was extinguished, which I thought was one of the major complaints about what Labour did in the first place.

Key will also be relieved that the panel has recommended specific provisions for public access and usage rights to the foreshore and seabed, although I expect the devil will be in the detail.

There are still huge issues to be sorted out around coastal marine law, physical access to the coast, acquaculture, and any monetary gains that flow from exclusive title.

The panel doesn't try to give an answer to the vexed question of whether customary title amounts to exclusive ownership rights, kicking that one for touch. Presumably, that would be one thing that the courts would be best-placed to decide.

So what does it all mean? What have Maori got in return for their huge opposition to the Foreshore and Seabed Act?

Well, unless the Government completely throws the whole review out - which is highly unlikely - they will get the contentious law repealed.

But they may still lose their right to take this issue to court. Instead, they'll get a different settlement process from the one that is in place currently.

Whether it will be better or worse in the end is yet to be seen. But one thing's clear. By suggesting a return to the drawing board, this whole issue is going to be around for a while yet.