John Roughan: Hidden danger in sacred sand

We take it for granted that access to the beach is free for all, but that may be about to change. Photo / Martin Sykes

We are about to do something fairly dangerous. Which is not to say we shouldn't do it, but we should have our eyes open.

It is hard to imagine anything more important than the freedom of the coast.

We take it for granted that we can stop at any beautiful spot, walk on the sand, sprawl in the sun, have a swim and lie on the beach for as long as we like, anywhere we like.

That goes even for the odd bay made inaccessible by someone's ownership of the surrounding land.

The English "Queen's chain" might not exist in New Zealand law, but it has a powerful place in the national psyche. Nobody, we believe, owns a beach.

That may be about to change.

Legislation negotiated between the National and Maori parties on the foreshore and seabed, is now in front of Parliament's Maori affairs select committee. It bears careful reading.

The Marine and Coastal Area (Takutai Moana) Bill first declares the land from the high tide mark to the territorial limits, to have a special status, "common marine and coastal area (cmca)" ... "which neither the Crown nor any other person owns or is capable of owning".

It "confers on every individual the right to enter, stay in or on, and leave the cmca, to pass and repass in, on, and over and across the cmca and to engage in recreational activities in the cmca".

That probably covers everything we want to do on the beach or in boats although, as the Act Party has pointed out, it does not state we can do them for free.

The negotiating minister, Chris Finlayson, has grudgingly agreed to put this in the bill.

It had better be there.

For the real point of the bill is to recognise the mana of Maori whose ancestors effectively owned the tidal zone and, by a ruling of the Court of Appeal, may still own it.

The bill offers them recognition in the form of something called customary marine title. Since areas under that title would remain in the "cmca", the aforementioned freedoms would not be affected - with one exception.

Customary marine title holders will have the power to exclude the public from places of "wahi tapu".

That term covers much more than ancient burial grounds, although heaven knows there will be plenty of those wherever war parties landed.

The bill invokes the definition of wahi tapu in the Historic Places Act: "A place sacred to Maori in the traditional, spiritual, religious, ritual, or mythological sense."

Getting nervous?

The titles will have to specify the boundaries of any wahi tapu, the prohibitions or restrictions placed on it and the reasons for them. Let us hope they do, clearly, because the title-holders can appoint wardens with powers to tell people of the prohibitions and restrictions and report wilful breaches to the police.

The local council will be obliged to enforce the tapu, and offenders may be convicted and fined up to $5000.

Venturing on to an unknown beach could be fraught. The freedom we take for granted now could no longer be assumed. Something priceless will be lost.

There would be plenty of mana in customary marine title without the power to exclude the public from sacred sand.

The title-holding group's permission would be needed for resource consents in the area and for marine reserves or activities licensed by the Department of Conservation, including watching marine mammals.

The group would have to be consulted on official coastal policy statements and it would draw up a planning document that must be recognised by its regional council and the Historic Places Trust.

It would become the owner of any unclaimed Maori artefacts found there and of minerals, apart from petroleum, gold, silver and uranium, that may be under the seabed.

All of this, including wahi tapu, is evidently not enough for Hone Harawira, and even his party leaders sound apologetic that they couldn't get more. Tariana Turia has reserved the party's position on the bill until it assesses the Maori response.

I wonder if, deep down, Maori, too, sense that something important could be lost. They too enjoy the freedom of the coast and not many may meet the criteria for a customary marine title to any part of it.

And even if they do, is it worth it if they can no longer venture confidently anywhere else?

Mana lies as much in procedure as property. Maori outrage at Labour's solution to the foreshore and seabed had much to do with the way Labour went about it.

This time, Maori have been partners from the outset. The fate of the bill is in their hands. If they are getting cold feet, no wonder. They have made their point.