Foreshore law review produces backdown

Maori took to the streets in protest when Labour passed its foreshore and seabed legislation. Photo / Kenny Rodger

Labour is extending an olive branch to Maori and the National-led Government by offering a bipartisan approach to the review of the Foreshore and Seabed Act.

It is a conciliatory move by Labour MP - and former deputy Prime Minister - Michael Cullen, who is retiring from Parliament next week, and an acceptance that the present law is unacceptable to most Maori.

Labour's new position is a shift from the law it passed, as it would allow iwi and hapu to claim customary title.

This right was extinguished in Labour's Foreshore and Seabed Act.

But under its new proposal, foreshore and seabed under customary title could not be converted to freehold title, which could then be sold.

Access rights for New Zealanders would be maintained.

Yesterday Dr Cullen released Labour's submission to the review.

"The review provides a chance to revisit the act and Labour won't use the issue as a political football," said Dr Cullen, who was the architect of the act.

He believed that "an enduring consensus" needed to be achieved on the issue and suggested that that had not been possible under some of the previous positions National took under previous leaders.

"Now that National claims to have disavowed its previous 'Iwi vs Kiwi' stance and a review has been established, the potential for that broad consensus to be reached appears possible."

The review is being conducted by Maori educationalist Hana O'Regan, lawyer Richard Boast and former High Court Judge Eddie Durie as part of the confidence and supply agreement between the National Government and the Maori Party.

The Foreshore and Seabed Act was the previous government's response to a 2003 Court of Appeal decision in the Ngati Apa case.

The court said Maori could explore customary title through the Maori Land Court - meaning it could then be converted to freehold title and sold.

Dr Cullen said yesterday that the court decision had been "far from all-embracing or conclusive".

But it had created significant problems as many Maori believed it had confirmed ownership in the foreshore and seabed.

"Many Maori misinterpreted it to mean that all that was required was to go to the Maori land Court to get the assumed right ownership, not to find out whether there were any such rights," he said.

Many Pakeha had also assumed that Maori could do that.

Labour would not seek to restore the right to pursue common law customary title through the High Court - although no iwi ever did - but through a statutory process in the Maori Land Court.

Exactly what customary title would mean would be up to the review panel to decide, said Dr Cullen.

But he has suggested that it should not include the right to convert customary title to freehold title - which could then be sold.

Public access rights for all New Zealanders should be retained and charging of access fees should be banned.

Rather than completely repeal the Foreshore and Seabed Act, Labour would change it to use some of the criteria it already set out to claim a territorial rights order in the High Court as a test for customary title.

The agreement the Government reached with the East Coast tribe Ngati Porou under the territorial rights order was an example of the sort of case in which customary title could be granted.

It would not be common, and frequently used beaches such as Oriental Bay in Wellington would not meet the criteria.

Treaty Negotiations Minister Chris Finlayson last night welcomed Labour's move.

"I agree completely with Dr Cullen's sentiment that the review of the Foreshore and Seabed Act needs to be approached in a non-partisan way, and that the issue should not be used as a political football.

"I welcome his assurance that the Labour Party will engage constructively with the review. Our goal is to reach the best possible outcome for Maori and all the people of New Zealand, and it is important that the voices of all parties in Parliament are heard."

Mr Finlayson would not comment on the substance of Dr Cullen's submission, saying the panel was conducting an independent inquiry.