Fran O'Sullivan: Let law courts decide future of the foreshore and seabed

Sir Douglas Graham's forthright "Layman's guide to understanding customary title" should be read by all Kiwis.

Graham - a former National Minister of Treaty Negotiations - demystifies the legal babble that often makes it difficult to penetrate the complex issues involved in the Foreshore and Seabed debate.

In the gentlest terms he skewers the ministerial review panel for accepting the nostrum that "customary title if not extinguished, exists by default".

But it is not much use dipping into Graham's exposition without also reading in parallel the full report from former High Court judge and Waitangi Tribunal chairman Eddie Jurie's review team.

What really takes the cake in the Durie report is the notion that simply repealing the Seabed and Foreshore Act and reverting to the pre-2004 track - which would have allowed iwi to progress their cause in front of the Maori Land Court and High Court - would be "protracted, laborious and expensive and could result in an unmanageable patchwork of litigation."

If the Foreshore and Seabed legislation is a travesty of justice - it did extinguish iwi's putative property rights - then the rational step is to throw the whole issue back to the courts to decide.

So what if it is "protracted" and "laborious" and "expensive" - that is what goes with the territory. What is the Durie team frightened of?

If the property rights cases ultimately stack up then that is the time to talk compensation of individual iwi, or, making deals that will allow co-management by Crown and iwi of the contested areas of the foreshore and seabed. Or better still allow them to exercise any proven rights.

So what if it takes years, no one is going to run away with the foreshore and seabed meantime.

The whole issue has become overladen with political complexity. But the basic property rights issue is not really all that complex despite the Durie panel's demonisation of the legislation as the "single biggest land nationalisation statute enacted in New Zealand history."

If the Crown's actions were really the biggest land grab in New Zealand's history, Durie should be championing the rights of iwi to go to court and establish their customary titles.

Trouble is, the Court of Appeal's 2003 decision which cleared the way for iwi to progress cases by no means made it a fait accompli that all customary title claims would succeed. As Graham says "it would be very difficult for iwi to show that in 1840 they were in exclusive possession of the seabed, particularly as much of it was not under New Zealand's jurisdiction until long after that. Nor is it likely they could show they have maintained possession of the seabed close to shore since."

Graham says it is possible that there may be remote areas of foreshore from low to high watermark where it could be proved."

But it takes a gigantic leap of logic to marry up Graham's analysis with Durie's over-egged rhetoric.

In reality this issue is not just a simple one of Maori exercising customary rights to fish and gather food from the foreshore and seabed in the manner their forebears practised decades ago. Or Pakeha being denied their own "rights" to enjoy leisure pursuits through open access to the foreshore and seabed.

Real commercial interests are at stake. Durie touches on this with his statement that it is an "open question" whether customary interests should be treated as exclusive ownership, complete with rights to income from commercial activities such as mining.

No wonder opportunistic iwi have quickly climbed back on their compensation horse. Offshore mining interests have already talked with the previous Government about access to mine the West Coast iron sands and they are ready to pay big money.

If the stakes are so high, surely the Government would want to first make sure the property rights claims are sound, not simply move straight to negotiations between the Government, the public and affected iwi and potentially deprive the exchequer of revenue that the Crown is entitled to?

Prime Minister John Key and Maori Party co-leader Tariana Turia are just fooling themselves by claiming that taking the lid off the can of worms will enable a permanent solution.

That will only last until another Government - wanting to assure itself of electoral support from the Maori Party - dips into the cookie jar again. Or Pakeha start asking why they can't get title without proving their rights.