Editorial: As long as we can all go to the beach

Maori who gather to discuss the seabed ruling at a hui this weekend will know that justice is on their side. Since the Court of Appeal last month overturned the long-standing assumption that foreshore and seabed were beyond the boundaries of customary land, the ruling has not been seriously disputed on legal grounds.

The Government has virtually conceded the judicial contest with the Cabinet's decision this week not to take the case to the Privy Council, which politically it could hardly do in any case. Those who are anxious to repatriate our final court of appeal could hardly now submit an issue of such particular indigenous sensitivity to the body they regard as a vestige of colonialism.

The Marlborough District Council, whose seabed is at stake, might still go to London but it would seem a waste of time. The Court of Appeal has invoked previous Privy Council statements to support its unanimous conclusion that the longstanding legal assumption was simply wrong.

English law enshrining common ownership of the foreshore and seabed did not necessarily apply in colonial circumstances. Pre-existing customary rights had to be taken into account. Though the Crown secured sovereignty over New Zealand with the Treaty of Waitangi, courts have been wrong to treat sovereignty as a proprietary right.

The best that critics of the decision can argue, as Act MP Stephen Franks did in the Herald yesterday, is that courts should not change erroneous law if it is long-standing because people might have ordered their affairs on the basis of it.

For the sake of certainty, he seems to suggest, the courts should uphold the status quo even if they think it wrong in law. If radical change is warranted it should be made by Parliament, he argues, not judges.

Parliament may yet legislate to resolve the doubt that now hangs over common rights to foreshore and seabed, But the response of Maori to the Government's initial intention leaves no doubt that the Court of Appeal ruling will have to be acknowledged. That ruling does not necessarily mean Maori have customary ownership of the land below high water, only that the Maori Land Court can hear such a claim.

The claimants in the Marlborough case are determined to proceed to the Maori Land Court. Their intention, they say, is not to restrict access but to establish an interest in marine farming. Nevertheless, the reaction from the Government and others demonstrates the dire implications for public access.

Today's hui probably will hear from Maori who are as concerned as any other citizens at the possibility that foreshore and seabed might become the property of adjoining iwi. If common sense is heard, a way will be sought to acknowledge customary ownership without impeding anyone's rights.

Guardianship is a principle that seems to work satisfactorily for certain mountains and other highly valued areas in the heritage of Maori and European settlers. Guardianship acknowledges the pre-colonial form of land ownership which, as the Waitangi Tribunal is often told, did not involve permanent exclusive possession as European purchasers understood it.

If Maori customary land ownership did not mean exclusive use then it need not pose too great a problem now. Indeed its meaning seems closer to the notion of territorial sovereignty than the proprietary right which courts long assumed - wrongly it turns out - sovereignty had involved.

With acknowledgement of the original guardians and goodwill on all sides, the Government and Maori can find a satisfactory solution. Whatever it may be, it must preserve unfettered public access to sea. To all New Zealanders that remains sacred.