If that is the foreshore and seabed debate effectively resolved we should all take a moment to celebrate. It will be good to have the issue behind us as a country and move on. It is John Key’s good fortune to be in office when the Maori Party finally ran out of steam on the issue, but for us lefties, them’s the breaks.
What was it all about? During this long debate there was lots of fuss about property rights and freehold title. But (according to Audrey Young in 2008) this was never a serious issue, even for the Maori Party:
The Court of Appeal allowed for the possibility of the Maori Land Court issuing freehold title in the foreshore and seabed. ie legal ownership, by dint, among other things, of Te Ture Whenua Maori Act 1993. No Government had ever intended this to be a possibility and Turia herself went to great lengths to say Maori did not want freehold title. This avenue was rightly shut down.
As the dust settles it’s starting to look like the fight was over little more than semantics and symbols, particularly the meaning of the phrase “customary title”. It is often claimed, even by Maori Party leaders, that the Foreshore and Seabed act took away the right to seek customary title in the courts:
Maori Party co-leaders Pita Sharples and Tariana Turia said they had fulfilled a long-standing promise to repeal the Foreshore and Seabed Act, which did not permit iwi to seek customary title through the courts.
Now, I am not a lawyer, but that claim appears to be almost pure semantics. The Act uses the language of “customary rights” instead of “customary title” (essentially the same thing – see here for “What are customary rights and a customary title?”). The Act (here or here, hat tip mickysavage) says:
33 High Court may find that a group held territorial customary rights
The High Court may, on the application of a group, or on the application of a person authorised by the court to represent the group, make a finding that the group (or any members of that group) would, but for the vesting of the full legal and beneficial ownership of the public foreshore and seabed in the Crown by section 13(1), have held territorial customary rights to a particular area of the public foreshore and seabed at common law.
If you’re feeling keen, trace from Clause 33 through to 36, 40 – 44. The Act lays out a mechanism for Maori to establish territorial customary rights, set up a Board to act as “guardians” and administer a “Foreshore and Seabed Reserve” the purpose of which is: “to acknowledge the exercise of kaitiakitanga by the applicant group over the specified area of the public foreshore and seabed in respect of which a finding is made by the High Court under section 33” (40(1)(a)). Or if you don’t feel like wading through legalise, just consider the outcome when Ngati Porou exercised their rights under the Act:
At Parliament yesterday, Attorney-General Michael Cullen signed the Government’s first foreshore and seabed deed of agreement with 48 hapu from the East Coast iwi Ngati Porou. … The agreement is intended to protect the customary rights of local iwi using coastal areas, while wider public access rights also remain intact. It means Maori in areas covered by the agreement will have a greater hand in environmental decisions made by the Government.
So while opponents claim that the Act “did not permit iwi to seek customary title through the courts”, what they fail to mention is that it does allow them to seek territorial customary rights through the courts, and these are effectively the same thing.
OK, so what changes as a result of the National / Maori party agreement? Not a lot. For a start, very few people are affected:
Mr Key has previously said he thought very few iwi would be able to meet the criteria for seeking customary title. He said today he still held that view.
Dr Sharples said that for those who had not been directly affected by the 2004 Act, nothing would change.
Despite all the sound and fury, the only people ever affected by the original court of appeal decision, the Foreshore and Seabed Act, or the National / Maori Party agreement to repeal the Act, are a very small number of iwi who meet some very strict criteria regarding continuous customary use.
And for this very small group of people – what exactly has changed? I’ll leave it to commentators better qualified than I to sort through the fine print, but the short answer seems to be – not a lot. Essentially a re-branding exercise, the foreshore to be administered by the Crown instead of owned by it. Iwi will still be able to seek customary rights through the courts, just as under the current Act. Which turns out – surprise! – to be just what they want:
FORESHORE MANAGEMENT MODEL HARD TO MATCH
Te Arawa leader Toby Curtis says there is a lot of hard work ahead for iwi if they want to make today’s deal on the Foreshore and Seabed Act reform work for them. The Maori Party is claiming victory after its meeting with the Prime Minister, alongside the Iwi Leaders Group, resulted in the government agreeing to go ahead with repealing of the Act. Its replacement will give the foreshore and seabed public domain status rather than being in Crown ownership, and Maori can go to court to pursue claims to customary ownership.
Mr Curtis says what iwi want is the sort of coastal management powers which Ngati Porou secured through negotiations with the previous government, but they might struggle politically to put up as strong a case as the East Coast tribe.
Got that campers? What iwi want is the sort of powers that Ngati Porou secured. Secured under the last government and the (soon to be repealed) Foreshore and Seabed Act (2004). Funny old world eh?