Six years does not seem a long time in the sweep of history yet it is time enough for a change in the political climate. The recommendation the Government received yesterday to repeal the Foreshore and Seabed Act seems unlikely to arouse the heat and fear that greeted the Court of Appeal's 2003 ruling on Maori customary claims. Public opinion is probably no less committed now than it was then to the principle that public access to coastal attractions must not be compromised. But the constant assurances of claimants that access is not at risk appear to have become generally accepted.
Once that fear is assuaged, the Foreshore and Seabed Act fails on every point of principle. The ministerial review panel has agreed with most submissions it received that the act failed to recognise Maori property rights and advanced the general interest at their expense. It nullified a ruling that iwi had successfully sought from what was then the country's highest domestic court, and denied them the due process of applications to the Maori Land Court for customary ownership of areas of foreshore and seabed to be recognised with a freehold title.
The panel suggests the Government should replace the act with legislation acknowledging that Maori with traditional interests in the coastal area have some form of customary title to it and that the public has a legitimate interest in access and navigation.
These interests could be reconciled, it suggests, through the courts or in negotiated settlements within iwi and hapu, or in negotiations at regional and national levels.
The Government says it will make its decision by the end of August but it seems bound to repeal the act if it wishes to retain the support of the Maori Party. The party that was founded on opposition to the previous Government's legislative solution cannot settle for anything less than complete repeal, even if the heat has gone from its cause.
But it will be interesting to see whether the act is replaced by legislation that is little different in effect. If the solution is to give iwi the option of direct negotiation with the Crown instead of court proceedings, it will be a vindication of Labour's act. One iwi, Ngati Porou, has already taken advantage of the supposedly detested act to negotiate a coastal guardianship agreement. It is unlikely the tribe would have won such recognition as easily or as quickly from the courts.
It is often forgotten that the Court of Appeal, in recognising the possibility of customary claims giving rise to freehold title, also postulated some conditions that it believed would be hard to meet. Primarily, the iwi or hapu would need to establish a continuous customary use of the foreshore and seabed area since pre-colonial times.
The act that overruled the court's decision provides for the Crown to recognise customary rights where it is satisfied a claim would have succeeded in the courts but for the act. Possibly Government officials are as rigorous as judges would be in assessing claims, but it seems unlikely. Negotiations invite compromise on the nature of claims as well as settlements.
If claimants were as aggrieved as they appeared at the passage of Labour's legislation, they should have been pressing the review panel to recommend nothing more or less than the restoration of their access to the courts. The option of direct negotiations would not be a respectable response and it might not be fair to the public interest.
Negotiations are conducted in private, without an advocate for keeping coastal property in the public domain. It is better that conflicting interests are resolved openly in courts where all parties can see what is proposed, present their case and have rights of appeal. Had the foreshore and seabed been left in the courts six year ago, the law might be clearer now.