Division over the foreshore and seabed sparked a political upheaval, with Maori finally becoming an independent force in Parliament. Five years on, the Government, as part of its post-election agreement with the Maori Party, has revisited the issue. The outcome is an elegant compromise that has more of the attributes of a continuum than a radical response to the much-maligned Foreshore and Seabed Act. The proposal, outlined in a consultation document, will now be the subject of public submissions. It should attract widespread support.
The nub of the Government's plan guarantees recognition of Maori customary rights while safeguarding all New Zealanders' access to beaches. Central to this is the proposition that no one owns or can own the foreshore and seabed. The area would be called a public domain. Maori would again have the right to go to court to establish customary title, but not freehold title. This differs markedly from the 2004 act, which extinguished claims for customary title by vesting ownership in the Crown.
It is reasonable to anticipate that such a change would prompt nothing too dramatic on a practical level. Negotiation over customary interests will, in the first instance, be between coastal iwi and hapu and the Crown. This is the path employed by the Foreshore and Seabed Act. It has resulted in Ngati Porou striking a coastal guardianship deal setting out its customary rights. Only if such negotiations are unsuccessful will hapu and iwi take their claims to court.
To ensure that such proceedings are as quick and inexpensive as possible, the Government plans a non-adversarial approach and legislation that will set out how customary interests and title are to be determined and recognised. Broadly, these embrace the use of the marine area since 1840 and exclusive occupation of territory without substantial interruption.
The upshot will be the greater involvement of hapu and iwi in decision-making. Customary interests, where recognised, will bestow a combination of property rights, such as the right to permit activities, and the right to input into environmental management. Customary title-holders will have a right to permit activities and to achieve commercial benefit. Their award, however, is unable to be sold and is subject to public access and existing-use rights.
The test proposed for customary interests is less stringent than that in the 2004 act. That is a considerable plus for Maori. Doubtless, it will be underlined by the Maori Party, whose supporters surely expect more than a simple repeal of the act. Co-leader Tariana Turia has suggested some may struggle with the proposal. If so, they probably cling to the unrealistic hope that customary interest can somehow be recognised with exclusive ownership.
Such critics would do well to acknowledge that the 2003 Court of Appeal ruling, which prompted the Foreshore and Seabed Act, raised the possibility only in extremely narrow instances of customary title converting to freehold title. A better focus would be the renewed right to test iwi and hapu claims to the foreshore and seabed in court. That open forum will, in fact, be in the best interests of all parties.
This is a pragmatic solution. Often, such compromises can be unloved. That fate should not befall this one. If the approach is unusual, it is not unique, having been incorporated in the 1964 Continental Shelf Act. Equally, much of the heat over the issue has dissipated, thanks in large part to constant assurances that access to the coast is not at risk. That, to a large degree, has rendered redundant the 2004 act's emphasis on the public interest. It also enables this proposal to strike a compelling balance.
Kahu
