On the foreshore

Seems like the Maori Party conference is off to a rocky start. Likely to get even rockier as they move on to the main event, the vexed foreshore and seabed situation.

The Maori Party, even within its parliamentary wing, is divided on the issue. It certainly hasn’t helped that ACT has been sticking its oar in to ratchet up the tension. Is the Maori Party going to put up with meddling by the “little fat redneck” Rodney Hide? For a while it was looking like the final straw. But currently Pita Sharples at least seems to have fallen back in to line:

National has said it will scrap the Marine and Coastal Areas Bill if the Maori Party pulls support for it, Maori Party co-leader Pita Sharples has warned members.

Speaking at the party’s annual conference in Hastings, Dr Sharples said he agreed the bill did not go far enough to give Maori right over coastal land, but opposing it would mean the existing law would remain for years.

The bill replaces the Foreshore and Seabed Act, which removed the right of Maori to seek customary title to beaches and seaside areas.

There’s the central claim of the whole dispute over the Foreshore and Seabed Act — that it “removed the right of Maori to seek customary title to beaches and seaside areas”. This claim is repeated as fact by almost every protagonist and commentator involved in the debate. Apart from mickysavage here I can’t recall ever seeing it challenged. But as I have said before and I will say again, it seems to be nothing more than bogus semantics.

The existing Foreshore and Seabed Act uses the language of “customary territorial rights”. The Act (here or here) 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)).

The proposed replacement Marine and Coastal Areas Bill uses the language of “customary title”. How is this different from “customary territorial rights”? The difference appears to be whatever you want it to be. It’s pure semantics. Ex National Minister in Charge of Treaty Negotiations Doug Grahamn, in his “A layman’s guide to understanding customary title”, completely conflates the two concepts:

What are customary rights and a customary title?

The common law has always recognised the right of indigenous people to carry on practising their customs. These may be non-territorial customary rights such as fishing and hunting, or a territorial customary title where they actually lived. …

Is a customary title like my freehold title?

No. Customary title is unique and quite unlike freehold land. It is normally communally owned and exists to permit the indigenous people to practise their customary activities on it. My freehold title is a Crown grant.

Spot the difference between customary territorial rights and customary title? Me neither. Neither, apparently, do some iwi. Ngati Porou secured rights under the existing Act that created a precedent that other Iwi now hope to be able to match under the new legislation:

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. … Mr Curtis says what iwi want is the sort of coastal management powers which Ngati Porou secured through negotiations with the previous government…

Naturally the current minister, Chris Finlayson, would have us believe that there is a difference, but the extent of “ownership” conferred by customary title appears to be so restricted that it amounts to the same thing as customary rights (the newly included mineral rights could just as easily have been included within the scope of either Act). No one else much sees a difference. Key said (and stands by) “I don’t think people will notice a lot of change.” Tariana Turia calls the new Bill “a small step along the way”. And Hone Harawira told reporters: “Comparing the 2004 and current bill showed that very little had changed. Except for maybe the “spelling” of the laws’ names”.

In short, the differences between customary territorial rights and customary title, and therefore between the defining characteristics of the existing Act and the new Bill, seem to be pretty much whatever we want them to be. It’s all about symbols. As legal expert Andrew Geddis put it:

So what we have here is a classic case of “legislation as symbol”. The content of that legislation may not appreciably change the way the world works, or really alter the rights and obligations of the people who live in that world to any great degree. But its very creation and passage sends a message about whose will prevails and whose interests are considered important.

So what does the symbol of the new legislation mean? And is the symbol alone enough for the Maori Party? I guess that this weekend we get to find out…