Debate this week on the Marine and Coastal Area (Takutai Moana) Bill showed the parties are a lot closer in some respects than their speeches would suggest.

All parties support repeal of the Foreshore and Seabed Act 2004, but vary in their stances on what it should be replaced with.

They all agree that the right to claim customary title in the courts should be restored.

National, the Maori Party and United Future also support an alternative mechanism whereby the Government and iwi can negotiate customary title as long as any such title is passed by law.

Labour does not oppose the right to negotiate but believes the title should be ratified by the courts, not Parliament.

After eight years of debate, Labour, Act and the Greens have arrived at similar positions. They all place paramountcy on giving the courts back power to determine not only which applicants should be awarded customary title, but also on what criteria.

The Maori and the Greens want the test relaxed, especially where confiscation of Maori land prevented continuous use and occupation of the area, whereas Act wants a tougher test, limiting claims to iwi that own adjoining land.

Debate on the bill is expected to stretch over the next two weeks and possibly into April.

THE THREE AGES OF FORESHORE AND SEABED
1. Before the Court of Appeal's 2003 Ngati Apa decision:

There had been no claim in New Zealand courts for customary title though there had been in overseas courts and so there are precedents. The Crown assumed it owned the foreshore and seabed and that any right to claim customary title over them had been extinguished. The Court of Appeal said Maori still had the right to However, where it was gained under common law tests, it could become freehold title.

2. Labour's law after the Court of Appeal decision:

The Foreshore and Seabed Act 2004 asserted the Crown ownership. It extinguished the right to claim customary title but provided for negotiated redress where the court held that customary title(termed territorial customary rights in the act) would have existed if it weren't for the extinguishment.

3. National's bill after the review of Labour's law:

Repeals Labour's Act and restores the right to claim customary title
in court. But rather than courts relying on overseas guidelines, the bill sets out criteria for the courts to follow. It also allows Governments to negotiate with iwi using the same criteria (including continuous use and occupation since 1840) and customary title to be passed in law. Customary title holders can't sell their titles and must allow public access but have other rights of ownership, including development rights subject to the Resource Management Act.