Government aims for win-win solution to seabed row

By AUDREY YOUNG, political editor

The Government tried to clarify its position on the foreshore and seabed issue yesterday after growing confusion over its intentions and the terms customary title and customary rights.

Deputy Prime Minister Michael Cullen, who is in charge of the committee - which includes the Maori caucus - charged with finding a settlement to the highly charged problem, issued a summary of the Government's approach to the political minefield.

It follows a landmark Court of Appeal decision last week in which a full bench of five judges unanimously held that the Maori Land Court had jurisdiction to hear a claim of ownership by eight iwi to the Marlborough foreshore and seabed.

That prompted Prime Minister Helen Clark to say on Monday that the Government would pass a law asserting the Crown's ownership over the country's foreshores and seabeds.

It is now backing away from that position, without saying so.

It is widely accepted that such an ownership law would override the Court of Appeal decision and its effect would be to extinguish any claim Maori might have to customary title - and that possible outcome has outraged Maori.

Customary title is a concept akin to ownership rights for a hapu or iwi derived from either's customary use.

It is not a legal term, but the Maori Land Court is able to investigate particular parcels of land - which the Court of Appeal says now includes the foreshore and seabed - as "Maori customary land".

Dr Cullen said the essential elements of the Government's position were:

* The Government would uphold rights of public access to the foreshore and seabed.

* It would protect Maori customary rights "to the extent they are not already" protected.

* Senior ministers would discuss with the Maori caucus how to reconcile the interests of Maori and the public.

* It was looking for a win-win situation where both sides felt justice had been done.

* Resolving the issue would require legislation, the exact form of which had yet to be determined.

* Work was being done on a statutory framework that ensured private, exclusive titles were not created over what had always been regarded as the public domain.

* Customary rights would be provided within that framework.

Dr Cullen also sought to boost the status of the Maori MPs in the solution process, describing them as "the only fully mandated body in New Zealand with full electoral representation".

Dr Cullen infuriated the Opposition in the House when he said National Party leader Bill English's question about what customary rights were was "silly".

"What the Court of Appeal ruled, if the member cared to think about it, is that Maori could apply to have those customary rights recognised through the Maori Land Court.

"It is up to individual iwi and hapu to make a claim what those rights are in their case. It was a silly question," Dr Cullen said.

Stephen Franks (Act) asked if Dr Cullen could guarantee that customary rights would not mean "a Pakeha might be stopped from throwing a fishing line off a beach while his Maori neighbour carries on".

Dr Cullen: "Customary rights may exist for some groups, as they do in many societies, and they are establish by legal processes that we hope legislation will help to clarify.

"General rights of access and usage will be ensured by legislation."

Dr Cullen also said: "Customary title can only arise out of customary use."

Later, in response to New Zealand First leader Winston Peters referring to "customary title rights of Maori to the seabed", Dr Cullen said: "Members keep asking a question about something that does not exist - customary title. Customary rights exist in New Zealand."

But the judgment last week is full of references to customary title.

Dr Cullen was answering questions on behalf of Prime Minister Helen Clark, who was in Dunedin yesterday.