Editorial: Review of foreshore law opens wound that had begun to heal

Opinion

On the face of it, the proposed review of the Foreshore and Seabed Act might be seen as symbol of a new era. National, whose relations with Maori in recent years have been troubled, plainly wanted to send a signal to Maori and to the electorate at large (not to mention to its pre-pledged coalition partners) when it signed a post-election deal with the Maori Party even though it did not need the extra votes to secure a Parliamentary majority.

A review of the controversial 2004 legislation was part of the price of the deal and it's time to pay up. Attorney-General Christopher Finlayson has appointed a panel headed by Justice Eddie Durie, a former chairman of the Waitangi Tribunal, and he has said he expects it to report by July.

For the Maori Party, the simple fact that the the review will proceed is a victory of sorts. Dr Pita Sharples, who, as Maori Party co-leader and Minister of Maori Affairs, is in a strange poacher-and-gamekeeper position in the matter, ended the announcement of the review by declaring that his party's supporters would "dance on the tables" in celebration. But they may feel less inclined to celebrate when they read the reviewers' report and - more important - when they see what change comes out of it.

Asked how he would react if the review found that no changes were needed, Dr Sharples replied that "we'll probably sack [the panel] and put another group in." It was a characteristic response from the old campaigner, apparently playful but carrying a hint of the iron in the soul of the act's opponents. But when all is said and done, the "we" is meaningless: Sharples does not sit at the Cabinet table and National does not need the party's five votes.

In any case, it is hard to see what either National or Maori has to gain from dragging the matter into the public arena again. In the five years since Labour's legislation was passed, the widespread disquiet on both sides has eased. A customary claim by East Coast iwi Ngati Porou has been agreed to - although its signing has been delayed pending the review - and other, similar claims are in the wings. Ngati Porou has given assurances that it makes the claim as kaitiaki or guardian of the coast in question and that - except to protect special sites and during rahui - it will not restrict public access to the beaches and foreshore. For all the unease and animosity that accompanied the law's passage, the stakeholders seem to have settled into a typically Kiwi process of getting on with it. What possible upside can there be for either National or the Maori Party in opening this giant can of worms?

There is a significant constitutional matter at stake, of course. The act was a response by the Labour-led Government to an Appeal Court finding, which did not, as is widely believed, grant Maori customary title to the seabed and foreshore but found that they had a right to seek it. Opponents argued that such pre-emptive lawmaking was a breach of fundamental rights and, since it applied only to Maori, discriminatory.

Labour might have argued that if Maori were losing anything at all, it was the right to a day in court to seek something no Government would allow it to have, but the ensuing five years have proven that wrong.

National has spelled out its bottom line - the preservation of public access - and Maori have made it plain, both in general and specific terms, that it was never under threat: it was never a question of ownership or access but of mana whenua, a notion alien to English law.

In the end, it is hard to see this not blowing up in the faces of both signatories. National will not want to risk alienating its (and its support parties') conservative hardcore by appearing to cave into Maori demands; the Maori Party will have a hard time arguing that anything other than complete victory is abject defeat. And unfortunately for Sharples, he won't be able to sack the panel.