John Roughan: After six years, the tide has turned

It is six years since Chief Justice Sian Elias and fellow judges of the Court of Appeal sent a cold shiver down white spines with a revelation that the beaches and sea, from high tide to the horizon, could still be Maori land.

In cheerful academic reasoning they had decided that since British common law recognised pre-existing property rights in colonised countries, and New Zealand parliaments had thought property rights went no further than dry land, the foreshore and seabed remained fair game for iwi and hapu to claim.

It is remarkable how much that single ruling has changed the political landscape.

A backlash encouraged by Don Brash revived the National Party and unhinged Helen Clark's government. Labour's legislative cancellation of the court decision alienated one of its most loyal constituencies, giving birth to an independent Maori Party that bids to be a permanent force in our future.

With at least one eye on that future, a younger and more flexible National leader has brought the Maori Party into his Government and anything seems possible.

To read this week's report from the ministerial review panel on the foreshore and seabed is to realise that much more than the landscape has changed. Six years on, the controversy has cooled to leave two strands of our national life stronger.

One is the recognition of a pre-colonial customary law, the other is the degree to which we hold dear the right to freely wander the coast, land on a beach, lie on the sand and swim in the sea.

We have always assumed that right, but the review panel points out that public rights of access to the coast and seabed in common law have been limited to navigation and fishing. Even the fabled Queen's chain is a relic of British heritage never instituted here.

The recreational rights we have claimed as a "sacred birthright" were not cemented in law until Labour's much maligned Foreshore and Seabed Act 2004.

The review panel appointed by National's Attorney General Chris Finlayson and Maori Affairs Minister Pita Sharples was led by a former head of the Waitangi Tribunal, Judge Eddie Jurie. Its report could not be more sympathetic to Maori outrage, which it finds to have been more about the manner of the "confiscation" than the fact of it.

Maori who made submissions to the review wanted open access to the coast as much as anyone, and despite an overwhelming demand for the Act's repeal, which the panel supports, nobody is suggesting a solution much different.

The panel has a terrible suggestion: a long series of local and national negotiating forums aimed at reaching some sort of bicultural resolution of conflicting Maori and European attitudes to the sea, which it describes in an interesting chapter on different "world views".

For Maori, it says, the sea is a private food storehouse. Fish and birds from the sea, rivers, lakes and swamps were the primary food of pre-colonial Maori. Water was much more important than land for their sustenance.

Their protection of those resources gave rise to what the panel describes as "a complex lattice of rights running the full length of many tribal coastlines [and] extending from there to the high seas".

In fact, the complexity of sea rights probably exceeded that of land rights, since sea rights frequently made allowance for hapu from the interior.

Pakeha, by contrast, "came to this country with a view to farming the land and holding it according to defined parcels in individual ownership. There was no comparable attempt to capture sea rights. The sea was simply a means of getting here and then of getting about."

The idea of a beach as public recreation ground came much later, the panel concludes from photographs in the archives of the Auckland Weekly News. There are not many shots of people at the beach before the 1920s.

"But arguably," it asserts, "the concept of free access to the country's beaches, rivers and lakes as a birthright of all New Zealanders, was not entrenched in the national psyche until the late 1940s when there were better roads, more people owned cars and petrol was cheaper."

The mass discovery of this country's coastal attractions has caused some tension, according to the panel. Maori operate by "a code of conduct based upon respect, deference and humility towards the natural order" which is often offended, it says, "by the way non-Maori behave on the foreshore or at sea - cavorting, gutting fish, creating waste or intruding on areas that have been reserved for special use for centuries".

Bicultural negotiations could be interesting, though probably unnecessary. After six years we have worked this one out. The coast is sacred for public access and customary rights. A law can be written now with mutual respect.