Back to drawing board on foreshore and seabed

Last updated 14:00 01/07/2009

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of pages, but in a nutshell what is says is this: the Foreshore and Seabed Act is discriminatory to Maori and should be repealed.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 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.



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Clint   #1   02:09 pm Jul 01 2009

Maori deserve equal access to the courts. This one is a no-brainer. All those who call for one set of rules for all New Zealanders must support this.

Andre   #2   02:13 pm Jul 01 2009

About time, though I'm not sure I agree that taking individual cases to the court would be less than ideal.

This has always been a property rights issue, not a "Maori issue", which was why ACT and the Business Round Table opposed the original legislation. Those property rights need to be established by claimants on a case by case basis, the same with any other property ownership issue, and with the same standards for property rights that the original Court of Appeal case established.

Anything else will turn this into yet another excuse for talkback radio to go nuts about "bloody maaries", ignoring the fact that this is something that affects all New Zealanders equally.

Alan Wilkinson   #3   02:28 pm Jul 01 2009

These are the fish-hooks as I see it.

If the questions are resolved by national negotiations then inevitably only the most politically-powerful groups will win.

If the questions are resolved by the courts then the smallest groups or individuals can in principle receive justice but in practice may be unable to afford the cost.

The problems involve usage, ownership and access - past, present and future in all cases. They are not simple. No simple solution will suffice unless many are prepared or forced to forgo their rights and claims.

Bea   #4   02:41 pm Jul 01 2009

Out of interest, is there a reason why you posted at 2pm - one hour before the lifting of the embargo?

David Nathan   #5   02:42 pm Jul 01 2009

Sorry - not trying to be a pedant - but you say it is embargoed until 3pm, but you released at 2pm and MPs are being quoted on the radio about it. What's the status of the embargo?

Brett   #6   03:05 pm Jul 01 2009

Its all a bit hypothetical at this point though, isn't it? The controversy will start when Key announces how the Govt. intends to handle the outcomes of the Ministerial review. What irks me is that the current Govt is spending so much time and money dealing with issues created by the crap legislation that the previous pack of monkeys passed (next will be Electoral Finance Act reforms) that current important issues are not being given the right amount of attention. Once again, Clark, Cullen, Mallard and co - thanks for nothing. Did your report cards at school all say "could do better"?

Roscoe   #7   03:18 pm Jul 01 2009

Customary title to Maori? Which iwi? I can't see the Pakeha majority accepting that. Even if a document was prepared beforehand that spells out exactly which beaches throughout the country would have open public access, I still can't see the Pakeha majority buying it. And would that solution be any different anyway to the "patchwork" result of going to court?

Two ethnic principles are in irreconcilable conflict: the Maori principle that this part of the land is theirs; & the Pakeha principle that this part of the land is for everyone. Our leaders will need the wisdom of Solomon, & more.

Alan Wilkinson #3

You'll almost make me a Marxist, Alan! Hasn't it always been the case that "justice" is limited by who can afford their day in court? It wouldn't matter, though, if it was a politicised negotiation process instead of a court solution. It still takes money to get anything like what you want.

Andrew Welsh   #8   03:30 pm Jul 01 2009

I agree with your comment that it is unlikely the Act is 'unpopular with most New Zealanders' as most Kiwis see Treaty negotiations as a 'gravy train' that has sucked large amounts of tax dollars from the general population to the privileged few, one only has to see how local runanga are being shafted by the big Iwi corporations (up to 100 families are being excluded from the Titi islands around Stewart Island). There is no doubt that some will see this as an opportunity to argue for compensation, exclusive property rights and anyone who disagrees will be a racist. As Erik Rush once said on the old Sports Cafe, 'you can swim in our sea, just don't put your feet on the bottom'.

BDI   #9   03:39 pm Jul 01 2009

Brett #6 - I think they said "deferred success" - although some of the names you mentioned are getting a little long in the tooth, so deferred until when is anyone's guess.

As for the Act and the Report... the situation is causing no end of waste and burden to the NZ taxpayer. Why equal access for all New Zealander's isn't good enough I have no idea.

Dave   #10   03:44 pm Jul 01 2009

As I've mentioned before, I reckon it's disgusting that the review process was manipulated to such an extent by the maori party. The review board should have been representative of the country, and it wasn't even close. That's in the past though. The cynic in me would say that the reason the review doesn't recommend going to court with this is because under the courts, ownership wouldn't likely be proven. Personally, I think they've taken a shortcut to ensure maori ownership is recognised, and more pertinently, that it can't be tested in the courts. Everyone has the right to their day in court if they've been wronged, but that's not the case here. The precedents of land that the maori were living on being 'taken' don't apply, they may as well be trying to claim the air above where their ancestors used to live. (Acutally, that's been tried, and thankfully, got thrown out).

The seabed and foreshore act was simply the government (as the body responsible for setting the laws) saying that noone has customary right to those assets not covered under the treaty, and a lawsuit would be frivolous and detrimental to the country as a whole, and writing the ownership of those assets into law so as to not be disputed in the future. It's about the one thing that labour did get right.

I do not now, nor will I ever, believe that ownership of the foreshore and seabed of this country should be assigned to one group on the basis of race. And the review, for all that it asserts that "some form of public right to access and navigation also needs to be written in" (But doesnt appear to recommend what form that may take, specifically, not unrestricted access) still makes that distinction. I'd like to see the government biff the review and stick with the act as written.

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