KEY POINTS:
In its own interests, the Maori Party may be forced to rethink its hard-line response to the ground-breaking agreement under the Foreshore and Seabed Act that gives Ngati Porou much greater autonomy over its tribal area than it has at present.
Tariana Turia was scathing and called it
paternalistic. But her hostility towards the agreement, and those who made it, boomeranged on the party with tribal leader Api Mahuika questioning the wisdom of voting for the Maori Party.
The last thing the Maori Party needs in election year is to put Maori voters in the middle of a stand-off between the party and iwi groups, effectively forcing them to choose between divided loyalties. That is bad politics.
And we are not talking about one isolated agreement on the East Coast, which is largely out of sight and out of mind to the general population.
Prime Minister Helen Clark said in Northland on Wednesday that as many as 13 iwi had expressed interest in pursuing a similar negotiation.
Among them is the powerful and highly visible Tainui. And if Tainui in the heart of the Waikato gets the same degree of autonomy that the heads of agreement will give Ngati Porou, it will be of a lot more relevance to a lot more people, including Pakeha.
It is little wonder that the Government arranged for the agreement to be announced on the eve of Waitangi Day when it could guarantee to be overshadowed.
It would be a little like arranging for one of the biggest financial announcements of the year to be made on Budget Day.
The Government wanted low impact and it got it.
For Maori it is hugely controversial because it revives issues around the Foreshore and Seabed Act. For Pakeha, it could be controversial because it gives the tribe much greater autonomy - dare I say sovereignty - to a degree never seen in modern New Zealand.
It includes veto rights over activities that might affect a hapu's relationship with the environment, the right to make customary fishing bylaws, the right to name places, and it establishes a statutory relationship between the iwi and the Gisborne Regional Council and a number of Cabinet ministers.
If it weren't for the fact that the agreement is born of the Foreshore and Seabed Act so despised by the Maori Party, it would almost certainly embrace such advances.
This is why the agreement poses a dilemma for the Maori Party.
Turia says that the Ngati Porou agreement reinstates something that existed before the Foreshore and Seabed Act 2004 took it away.
Maybe in her mind, in lore, but not in law. This agreement is bedded in a legally specific common-law concept called customary title which is different to customary rights practised by all iwi. A tribal claim to customary title was never tested in the New Zealand High Court before the Foreshore and Seabed Act closed down the established right to have a case heard and set up this alternative negotiated "remedy".
And it should not be confused with the part of the act that shut down the newly identified right in the Court of Appeal judgment for iwi to explore freehold title of the foreshore and seabed at the Maori Land Court.
We are not talking about customary rights exercised by all iwi.
Under common law, the conditions that need to be satisfied before customary title (or territorial customary rights as the Government now calls it) are recognised are narrow - exclusive and continuous occupation of land next to the foreshore and seabed.
That will necessarily limit the number of iwi that may be able to negotiate such agreements.
That points to one of the downsides for the Government - that the Ngati Porou agreement may raise the hopes of other iwi of a similar agreement but who go nowhere near to qualifying.
The result is that some iwi will have a large amount of autonomy in their role and others won't - which would seem to be pretty undesirable and divisive.
There may be many legitimate reasons for the Maori Party to oppose the agreement but it may need to take a little more care in deciding how to approach this thorny issue.
