Editorial: Guardianship for beaches, not ownership

The opening gambit in any negotiation usually involves a fair degree of rainbow-chasing. Positions can be relaxed but rarely strengthened as deals are agreed. Thus it is hardly surprising that the Paeroa declaration of principles, to be sent to the Government on behalf of "the hapu and iwi of Aotearoa", is worded strongly. Nor should too much be read into statements from activist quarters that there must be "no compromise, no deals". Reasoned consideration, and the application of less extreme minds, can ensure a middle path is found.

That path cannot include the vesting with Maori of any form of proprietary ownership of the seabed and foreshore. Consequently, there will have to be pliability on two points of the Paeroa hui's declaration. The first is point five, which states: "The Government must disclose its proposals to whanau, hapu and iwi immediately, whose decision to accept or reject will be final." This appears directed at legislation that might yet be used to resolve the doubt hanging over common rights to the foreshore and seabed. If so, it clearly bestows an unacceptable authority.

Point six is even more all-embracing. It proclaims: "The final decision on the foreshore and seabed rests exclusively with whanau, hapu and iwi." This not only endows a proprietary ownership - and a potential threat to public access - but puts Maori a step ahead of themselves. The Court of Appeal decision which sparked this issue does not necessarily indicate Maori have customary ownership of the land below high water. It means only that Te Tau Ihu can take a case to the Maori Land Court claiming customary title to the Marlborough Sounds foreshore and seabed.

The hui also told Labour's Maori MPs that they must vote against any legislation which proposed "to extinguish or redefine Maori customary title or rights". Effectively, those MPs were put on notice and told they would suffer the electoral consequences if they caved in on the issue. That, equally, is a position that ignores reality. Any attempt to pressure Labour's Maori MPs must be tempered by the likely scenario should the party lose power.

The National Party's weekend conference was told that a National government would legislate to ensure public ownership of the foreshore and seabed. There would, said Bill English, be one rule for all, "where rights come from a common citizenship, not from ethnic identity". The National leader also pledged that a government under his stewardship would close the books on new historical treaty claims within a year, and scrap the Maori parliamentary seats.

Such policies, and the prospect that the seabed could become a pivotal issue at the next election if allowed to fester, will concentrate the minds of all bar those on the fringes. In some cases, it has already. The Maori Affairs Minister has said he will not be pushed into a corner and will fight for a fair solution, with access rights guaranteed for everyone.

That solution will acknowledge customary title - not a European concept of ownership - without impeding anyone's rights. The path forward lies in the concept of Maori guardianship, but not ownership or the ability to restrict public access to the sea. It is not a novel or radical idea. Guardianship acknowledges the pre-colonial form of land ownership which did not involve permanent exclusive possession as European buyers understood it. It has already been used for Lake Taupo and on reserve land in other treaty settlements. As the status and the sway of the original guardians are acknowledged, so goodwill sponsors the recognition of long-standing practice.

Guardianship lies some distance from the unequivocal sentiment of the Paeroa declaration. But only the open salvo has been fired. With common sense on both sides, and an eye on the consequences of failure, a fair solution can be found.