Government asks for time on foreshore policy

By RUTH BERRY, political reporter

The Government yesterday admitted it has backed down on plans to rush through its foreshore and seabed policy.

Its lawyers now suggest the policy may take six months to complete.

The National Party accused the Government of a "massive retreat" and a cynical manipulation of the judicial process which abused foreshore and seabed claimants' legal rights.

Claimants and their lawyers expressed mixed views about the delay, but were critical of the confusion sparked by the Government's antics and its ongoing refusal to spell out what is going on.

The Waitangi Tribunal, which had scheduled an urgent hearing into the policy, also expressed frustration yesterday.

The Government initially signalled a desire to introduce legislation by Christmas, justifying its haste by claiming the need to guarantee certainty over the ownership of the foreshore and seabed.

It then supported applications by numerous whanau, hapu and iwi for the tribunal to inquire into whether the plans would constitute a treaty breach and agreed to present the tribunal with its confirmed policy last Friday.

Yesterday, at a judicial conference called by the tribunal and attended by about 20 lawyers, Crown Law said the Government had no policy finalised and wanted to do further consultation.

Crown counsel Mike Doogan asked that the urgent hearing, set down for next month, be delayed.

But he was unable to give a new timeframe or details of how the Government would consult further and with whom, or to confirm whether there were any changes in the Government's policy formulation.

"The Crown failure to notify a firm policy position last Friday has created a great deal of uncertainty. That is regretted," he said.

Mr Doogan told the judicial conference the Government wanted to ask the Maori Land Court, hopefully with the support of claimants, to adjourn foreshore and seabed cases before it for "somewhere in the order of six months".

This would remove the possibility of the court awarding a freehold title in the meantime, thus removing the need to rush the issue.

He said six months should be enough time to finalise the policy.

A Port of Marlborough application to appeal against the Court of Appeal decision to the Privy Council was at present operating as a "de facto stay" but could be dropped at any time, he said.

The Government had realised "a more considered policy timeframe" was more appropriate, hence the desire to slow things.

Tribunal presiding judge Carrie Wainwright asked if the Government was committed to maintaining its four principles and Mr Doogan said that while it remained guided by them, "I hesitate. I don't have clear instructions re maintenance".

"Why don't you have clear instructions?" he was asked.

"It simply reflects the fact that this is a complex and difficult issue for the Crown," he replied.

Judge Wainwright: "It is somewhat surprising that there is not more clarity as to how the Crown is going to go about that process."

Mr Doogan revealed that even the decision to seek a delay was last minute. "I accept that is a valid point. The decision to pause was taken fairly late last week."

Claimant lawyers said they had been placed in an "impossible" situation.

They had been asked to delay an urgent hearing, without any guarantees claimants' rights would be protected in the meantime.

Lawyer Tim Castle said if the urgent hearing was delayed and the land court declined the application for an adjournment the Government might rush legislation through. The opportunity for a tribunal hearing would then have been lost.

Lawyer Annette Sykes said attempts to encroach on foreshore and seabed were occurring now and a delay could erode claimant rights unless protections were in place.

Judge Wainwright said the tribunal would want guarantees it would be given time to conduct a proper hearing when the policy was finalised.

The tribunal did not want to delay further opportunities for engagement between the Crown and Maori and would give Crown Law and claimant lawyers until Thursday to decide whether they could reach agreement on both the urgent hearing and the proposed land court adjournment, she said.

National justice spokesman Richard Worth said "this is a massive retreat. It just seems incredible".

The delay might be designed to dampen Maori expectations, he said.

Acting Prime Minister Michael Cullen refused to comment yesterday.