11.45am
Government foreshore and seabed proposals have the country headed for a new series of Treaty of Waitangi grievances, National Party Maori Affairs spokesman Gerry Brownlee said today.
A Waitangi Tribunal report has said the proposals are in breach of the treaty, as they deny Maori the right to test the extent of their customary ownership of the foreshore and seabed.
The Government says
, released this morning, is based on incorrect assumptions about the law and the role of Parliament.
Deputy Prime Minister Michael Cullen said the report was "disappointing", though consideration would be given to some parts of it.
The Government rejected some of the central conclusions that were based on "dubious or incorrect assumptions", he said.
His blunt appraisal of the report predictably angered some Maori.
Mr Brownlee told National Radio the Government was opening the way to countless new treaty claims.
"While the seabed and foreshore is not technically a historic grievance the potential for it to become so as the years progress is extraordinary," he said.
"The Government are walking directly into that, and they are condemning successive generations of New Zealanders to dealing with that."
The Government should abandon the concept of dual title and keep foreshore and seabed in Crown ownership, Mr Brownlee said.
Prime Minister Helen Clark told TVNZ today the tribunal appeared to think that if Parliament tried to change a law, then it was breaking the law.
Parliament was sovereign, she said.
New Zealand First leader Winston Peters said the Government should abandon the dual title concept and put the foreshore and seabed into crown ownership.
Maori academic Professor Margaret Mutu, a lobbyist, told National Radio that the Government would invite a backlash if it rejected the report.
She said Dr Cullen should read the report more carefully.
"The tribunal is quite clear that parliamentary sovereignty does exist, they don't anywhere indicate otherwise," she said.
"What the tribunal is saying is that Maori do have property rights in the foreshore and seabed.
"The Government is trying to understate them -- understate them grossly -- and recognise only severely diminished property rights for Maori."
The tribunal said the Government proposals could lead to the removal of a property right without compensation.
That would only allow Maori to take part in the "administrative process" of land below the high tide mark.
"If, as we fear, the process does not deliver for Maori, they will get very little (and possibly nothing) in return for the lost property rights," the tribunal wrote in its report.
The tribunal essentially recommended that the Government start again, hold a "longer conversation" with Maori and allow the claims to be heard by the courts before taking any action.
It did not appear to recognise that Parliament was sovereign and instead believed laws could be ignored.
"The report also seems to be asserting that if Parliament changes the law, as the Government is proposing by removing the capacity of Maori to gain freehold title over the foreshore and seabed, it is somehow breaking the law itself," Dr Cullen said.
"The power of Parliament to change the law is central to the exercise of sovereignty and therefore the contemporary exercise of article one of the treaty."
The tribunal was also wrong to say the Government did not recognise customary rights as a form of property right, Dr Cullen said.
Under the policy released in December, the Maori Land Court would decide on customary title claims and whether a specific customary right should be recorded on that title.
The Government has said the customary title will run alongside a public domain title that will make clear no one can privately own the foreshore and seabed or block access.
Holders of customary title will not hold a property right beyond the right of consultation.
Holders of a customary right will have greater protections to ensure the specific long-held practice -- such as gathering sand -- cannot be eroded by developments.
Dr Cullen said the tribunal was also wrong to say the Government was rushing through the policy.
Nine months had passed since the Court of Appeal said the Maori Land Court had jurisdiction to hear customary claims to the foreshore and seabed and it was not beyond the law for those claims to convert into a private title.
The Government's proposals would not become law until near the end of the year, Dr Cullen said.
The Government would not allow customary claims to go through an extended legal process without knowing how it would conclude.
"In the meantime great uncertainty will occur. There is a serious risk of injunctions to prevent any foreshore and seabed activity occurring. Already this is beginning to happen," Dr Cullen said.
The legal process, if allowed to take place, could see "substantial areas" being covered by freehold title and it would be "objectionable" to then legislate to take that title away even with compensation.
Dr Cullen said there were positive aspects to the report.
Some of the technical, legal and cultural advice about the Government's proposals were valuable and would be taken into consideration.
"The Government believes that a more balanced view on the Government's proposals would confirm that they are consistent with a great deal of these analyses," Dr Cullen said.
"It is ironic that the major opposition parties are attacking the Government for leaning too much towards Maori while some Maori and the tribunal are saying the exact opposite. Perhaps that might suggest to a fair and independent observer that the Government has it about right."
Green co-leader Jeanette Fitzsimons said the Government should take heed of the report and begin negotiations with Maori while allowing claims to proceed through the courts.
- NZPA
Waitangi Tribunal:
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