Brian Rudman: No reason for foreshore angst

Mass hysteria can be a bit like flu. With luck, the majority of sufferers become inoculated against the disease, remaining calm and rational when the next wave comes through.

So far at least, this has been the case following the reappearance of Maori demands for customary rights to the foreshore and seabed.

Back in 2003, when the Court of Appeal ruled that the Ngati Apa tribes in Marlborough may have a customary right to farm fish, dating back to before 1840, it was as though Che Guevara had been sighted lurking in the surrounding vineyards waiting to strike.

Parliamentarians from the left and the right outdid each other in predicting the scariest of outcomes.

The outcome, to the Labour Government's shame, was the Foreshore and Seabed Act, which resulted in the biggest mass Maori protests since the 1975 land march, and the creation of the Maori's most successful political vehicle ever, the Maori Party.

Contrast that 2003 rush of blood to the head of the body politic, with the present group grope that party leaders have been engaged in since the release of the ministerial panel's review of the act a few days ago.

The panel is, in effect, repeating the 2003 Court of Appeal opinion that some Maori may have customary rights over some parts of the foreshore.

It even raises the possibility of compensation. Yet the only signs of hysteria this time come from a couple of National's yesterday's men, Whanganui mayor Michael Laws and New Zealand First leader Winston Peters.

After seven months of post-election sulking, Mr Peters popped up calling it a "can of worms" - an intriguing metaphor to toss into a row over fish farming - which would be "disastrous" for the country's future.

Mr Laws, in his Sunday Star Times column, said that admitting Maori might have customary rights was "ridiculous and racist" and thundered "there has already been too much liberal bending on this matter". This from a man who thinks spelling his city's name correctly is "liberal bending".

The ministerial report traverses the long debate between Maori and the Crown over foreshore rights. It's not the latest secret weapon invented by Maori separatists that Messrs Peters and Laws would have us believe. It's more the "weeping sore" that Prime Minister John Key referred to on Monday.

Back in 1872, the government even suspended the Native Land Court's right to issue titles to land below high water "within the Province of Auckland" because of indecision over the self-same issue. Both parliamentarians and the courts at the time were divided over whether local Maori could lease foreshore mining rights to the gold-bearing sands at Thames.

Violence between miners and Maori threatened. The report quotes Crown counsel Cormack, in a case following the "suspension", telling the court it may be an issue for Parliament to decide in consultation with "the natives", adding: "I am instructed to impress upon the natives that the hearings of these claims is only deferred, not refused; and that the government have not the wish, as they certainly have not the power, to deprive the natives of any just rights they may have to the foreshore."

More than a century on, the issue remains unresolved. Labour's solution, in 2003, was to pre-empt any possibility that a court might decide not just that a Maori group had customary title to fish and the like, but also the right to convert this to freehold title.

The Crown, in effect, confiscated all foreshore and seabed, adding the proviso that if any group considered they had a customary right to a piece of land, then they could make a case to the Crown.

Since the act was passed, no such applications have been made. The focus instead, has been on getting the law repealed.

The problem facing the politicians now is what happens when - as seems inevitable - the Foreshore and Seabed Act is repealed. The do-nothing solution is to return to the post-2003 Ngati Apa Court of Appeal decision and leave it to each tribe or iwi to make a separate case before the courts.

The time, expense and uncertainties of such a process seems unnecessarily obstructive and politically divisive, especially if a settlement based on a parliamentary consensus can be arrived at.

Already, the Maori Party has downplayed talk of monetary compensation and emphasised mana as the driving force. Preserving free access to beaches for all New Zealanders appears to be accepted as a given by all sides. Given that, and with the hysteria now behind us, what have New Zealanders to fear by acknowledging Maori customary rights over a few parts of the foreshore?

As the report also notes, we've done it with lake beds for a century and the sky hasn't fallen in. In 1912, the Court of Appeal upheld Arawa claims to the beds of the Rotorua lakes. "Today the Crown accepts that lakes are simply land and as such can be investigated by the Maori Land Court, as shown by recent settlements relating to Lake Taupo and the Rotorua lakes."

Acknowledging similar rights to certain pieces of foreshore hardly seems a revolutionary step forward.