It's not so long ago that former US President George Bush said whoops, Saddam Hussein didn't have weapons of mass destruction hidden under every date palm after all. But it ain't my fault, he deliberately fooled us.

That was after the President had unleashed the deadliest invasion of one country against another in recent history.

On Sunday morning television, former National Party leader Don Brash did his own little whoops confession. He admitted he was wrong to have opposed Maori having their day in court over customary use of the foreshore and seabed, and conceded that if the iwi involved had been allowed to test their case before a judge in 2004, "we might have avoided a great deal of subsequent history".

He said: "A number of legal experts have suggested ... the ability to prove customary right would actually have been quite limited and we might have avoided much of the controversy that occurred."

This from the man who deliberately stirred up an anti-Maori tsunami amongst Pakeha voters to boost his flagging poll results, and scratched the racist itch so successfully, he all but took power in the 2005 election - doubling National's voting support in the process.

And all he says now is whoops, we got it wrong.

Dr Brash's comments were by way of a curtain-raiser for his successor, Prime Minister, John Key, who on after Monday's Cabinet meeting, said the Foreshore and Seabed Act would almost certainly be repealed, but that no decision had yet been made on what would replace it. As the new boy on the block and the arch-pragmatist, Mr Key is not burdened by past baggage on this issue.

But bringing his party colleagues with him could be problematic. Many were fellow sword wavers, in Dr Brash's crusade, and know how electorally popular, racist scare-mongering can be.

The mass hysteria erupted in 2003 when the Court of Appeal ruled that the Ngati Apa tribes in Marlborough may - only may - have a customary right to farm fish, dating back to before 1840. Parliamentarians from across the political spectrum competed to predict the scariest of outcomes.

To its shame, the Labour Government got so spooked it introduced the Foreshore and Seabed Act which sparked off the biggest Maori protests since the 1975 land march, and resulted in the creation of Maori's most successful political vehicle, the Maori Party.

Whether Maori have any residual customary rights over seabed and foreshore had been argued, on occasion, in the courts, since 1840 with inconclusive results.

Labour's solution, in 2003, was to pre-empt any possibility that a court might decide, not judge, that a Maori group had customary title to fish, but also, that it had the right to convert this to freehold title. The Crown, in effect, confiscated all foreshore and seabed not already in private ownership, with the proviso that anyone considering they had a customary right to use a piece of land, could make a case to the Crown.