As far as numbers go, the hikoi that arrived at Parliament in the icy wind and rain to protest against the Marine and Coastal Area Bill was a faint shadow of the huge outpouring of emotion against the law it will replace.
In 2004, more than 20,000 people marched to oppose the Foreshore and Seabed Act amid angry scenes that culminated with activist Tame Iti spitting at the feet of deputy prime minister at the time Michael Cullen. By the time the crowd reached Parliament, the momentum had fuelled an unstoppable grassroots movement that gave birth to the Maori Party and, a year later, its dominance of four of the seven Maori seats.
Yesterday's protest, by comparison, was a sedate affair, with a little over 300 people marching in silence before staging a mock tangi on Parliament's lawn.
Although the sentiment was the same, with banners branding the Marine and Coastal Area (Takutai Moana) Bill as "racist", "theft", and "confiscation" – just as those used to protest the Foreshore and Seabed Act seven years before – the small number of protesters appeared to back Government claims that the heat has mostly gone out of the issue.
Attorney-General Chris Finlayson referred to the "very small" crowd and was dismissive when asked what he got out of the protest. "I got wet."
He also dismissed the group as malcontents who had repeatedly changed their position on the bill, which is expected to be passed this week.
"I have to say that I've gone out of my way to consult that particular group. What I find is expectations keep mutating, and so the original clarion call was for access to justice, and when that was provided, the ground moved, and so it's very hard to keep up with the various expectations."
Maori Party co-leader Tariana Turia said that though she agreed with the hikoi's political message, many of those who were on it were radicals who did not believe the Government had the right to rule New Zealand in the first place.
Both Mr Finlayson and Mrs Turia insist that the bill has been broadly welcomed by iwi and hapu during hui around the country, and that opposition to it has been overstated.
But Maori political commentator and academic Rawiri Taonui said the low turnout for the hikoi did not mean there was not significant opposition to National and the Maori Party's law.
Writing in yesterday's Dominion Post, he said the low numbers had as much to do with the fact that the issue today had pitted Maori against Maori – that was, those who opposed the bill against the Maori Party and iwi who supported it – compared to 2004, when the marchers spilled out against what they saw as Pakeha racism.
He said Maori Party support for the bill had "stunned Maori into silence" rather than rallied them to opposition.
It is an argument also advanced by independent MP Hone Harawira, who was a prominent leader of the 2004 hikoi and who left the Maori Party over its support for the present bill. "In 2004 there was a clearly identifiable Pakeha enemy. When the enemy is part of your own, it's very hard for Maori to march."
Mr Harawira said a truer indication of the opposition to the bill was the many select committee submissions from iwi and hapu that opposed it. All but one of the 72 submissions from these groups were against the bill, with about three-quarters wanting either substantial changes or a delay till a better deal could be struck.
The main complaint is that the test for Maori to claim customary title under the bill is too tough for all but a very small number of iwi and hapu in localised areas to qualify.
Labour foreshore and seabed spokesman David Parker said the whole issue should be sent back to the courts with no legislative code for the tests for customary title. "All you need in the law is protection of public access, protection of fishing rights, a provision that says you can't sell a customary interest, and then leave all the rest to the courts. Parliament should just acknowledge this is one of those issues that Parliament can't fix through codification, and with those protections in place should just refer it all back to the court."
Mr Finlayson said the tests in the bill were no more than what the courts would have applied in 2003, when the whole issue blew up after the Court of Appeal overturned years of judgments and ruled that Maori could seek customary title to the foreshore and seabed.
He said the issue would not be revisited by National in future parliaments as it enshrined cornerstone principles the Maori Party sought – repeal of the Foreshore and Seabed Act and recourse to the courts – and provided an "enduring solution".
The Maori Party has also made clear it is keen to see the issue put to rest for once and for all, though Mrs Turia has promised all along that a new deal could be sought if the replacement law does not prove satisfactory for iwi and hapu.
It was a door she was still holding open as the bill entered its final stages last night.
"When you consider it, every piece of legislation can be revisited. I think that we'll take our advice from our people and see what they have to say about that going forward."
KEY POINTS OF NEW LEGISLATION
Q: What does the Marine and Coastal Area (Takutai Moana) Bill do?
A: It repeals the Foreshore and Seabed Act and restores the right of Maori to claim marine and coastal areas in the courts or through direct negotiation with the Government.
Q: What is the marine and coastal area/foreshore and seabed?
A: The area from the high-water mark at mean high-water spring tides out to 12 nautical miles.
Q: What does customary title mean?
A: Customary title is not the same as freehold title, but in many respects confers the same rights. Under the bill, it will include the ownership of minerals except petroleum, gold, silver and uranium (which are nationalised), the right to permit Resource Management Act applications and the right to create planning documents which can impose obligations on local authorities.
Q: What is the test for customary title?
A: The law will require applicants to show exclusive use and occupation of a marine and coastal area in accordance with Maori custom and without "substantial interruption" since 1840.
Q: How many iwi and hapu are likely to qualify?
A: Former Maori Party MP Hone Harawira says the bar is too high and few claimants will qualify, but ACT says the bill is too vague and customary titles could be widespread. Prime Minister John Key has said he expects successful claims will be rare.
Q: Can land granted customary title be sold?
A: No – any customary title is inalienable.
Q: What about the issue of public access?
A: This is protected for areas given customary title.
Q: Why is the bill being passed?
A: National and the Maori Party agreed to review the Foreshore and Seabed Act as part of their confidence and supply deal. The review recommended the act be repealed and National agreed.
Q: How is the bill different from the present law?
A: The Foreshore and Seabed Act vested ownership of beaches and coastal areas in the Crown and ended the right of Maori to seek customary title in the courts. The bill ends Crown ownership, creating a "common marine and coastal area"; meaning effectively that nobody owns the foreshore and seabed. It also restores the right to take customary title claims to the courts. The 12,500 titles presently in private ownership will be unaffected.
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