No party except National is content with the foreshore and seabed legislation now rapidly moving though its final stages in Parliament. The Maori Party, which supports the Marine and Coastal Area (Takutai Moana) Bill, believes it is better than the Labour Government's act of 2004 but far from satisfactory. Discontent centres mainly on the "test" of customary claims.
A group seeking a customary marine title to a coastal area will have to establish that it has occupied and used the area in accordance with tikanga (Maori custom) without substantial interruption since 1840. Labour, the Greens and the Maori Party would prefer that the legislation left the test entirely for courts to work out. They say judges would be able to consider criteria used in similar jurisdictions such as Canada, and the findings of the Waitangi Tribunal, to develop a test that takes colonial land loss into account. They believe few iwi or hapu will be able to establish uninterrupted customary use of a coastal area for the past 170 years.
That may be so, but the Court of Appeal judges who issued the decision that opened the possibility of customary claims in law were far from confident claims would succeed on a factual basis. Chief Justice Dame Sian Elias wrote, "Whether or not the appellants will succeed [in the Maori Land Court] remains conjectural." Justice Sir Thomas Gault said, "I have real reservations about the ability for the appellants to establish that which they claim." Justice Sir Kenneth Keith: "... it is not, for instance, known whether related coastal land has been sold, has been the subject of Native or Maori Land Court investigation, or has been otherwise disposed of ..."
Clearly, the country's senior judges envisaged a test every bit as tough as that in National's bill, and possibly tougher. The bill does not insist that a group must have owned land abutting the claimed coastal area since 1840. That is merely one of two "factors that may be taken into account in determining whether customary marine title exists". The other is an exercise of customary fishing rights in the area since 1840.
The legislation may give the courts less latitude than Maori would like, but it restores their right to argue a case in the proper forum. Judges will not be as readily swayed as politicians by public opinion, although they cannot be insensitive to it. They will know they are being asked to recognise claims that carry significant privileges in places that all New Zealanders regard as rightful public property.
Parliament is the proper forum for the public interest to be expressed and it is only fair to judges and claimants that legislation clearly states what the public will accept. National has assessed that most voters are ready to acknowledge particular Maori proprietary interests at a beach or seabed area, so long as the iwi or hapu has been quietly exercising its interests since time immemorial.
The Maori Party, the Greens and possibly Labour think most voters would go further, restoring those proprietary rights to iwi and hapu that have long since been deprived of the opportunity to enjoy them. If they dare, they could test that idea at the election in November.
More likely, they will leave well enough alone. The country has come a long way since the court ruling of 2003 and the Brash backlash the following year. Not all New Zealanders have come as far. The Act Party thinks too much has been conceded. National and the Maori Party are putting the bill through its remaining stages quickly. They do not want it to be a live issue at the election.
Nor, probably, do most voters. After seven years, they want a solution. In this bill they have one that might not be perfect, might not last long, but is worth trying. Chances are that mutual respect for customary uses and public rights will put the subject to rest forever.