Wednesday, February 25, 2004

Should Wiser Heads Have Prevailed

You can't help but think that much of the current crisis facing the New Zealand Labour government is the result of the terrible mishandling of the Seabeds and Foreshore issue. Remember that? Back in June, the Court of Appeal ruled on the case brought forward by South Island iwi on the status of the seabeds and foreshores in the Marlborough Sound.

The Appeal Court found that the Maori Land Court had the jurisdiction to decide on the status of seabeds and foreshores in accordance with the Te Ture Whenua Maori Act of 1993. That is, the Court said that the Maori Land Court had the capacity to decide whether Maori claims to customary property rights along the seabeds and foreshores of the Marlborough Sounds were valid or not.

Reversing previous decisions, Justice Elias argued that the so-called transfer of sovereignty widely assumed to be the substance of the Treaty of Waitangi did not erase Maori rights to customary property in seabeds and foreshores:

The transfer of sovereignty did not affect customary property. They [customary property rights] are interests preserved by the common law until extinguished in accordance with the law. I agree that the legislation relied on in the High Court does not extinguish any Maori customary property in the seabed or the foreshore.

The Court also found that the entire question of who actually owns the seabeds and foreshores was up for debate.

Unfortunately, the Court's decision touched off a spiral of anxiety. Led by the New Zealand Herald New Zealanders were told to expect the worst: this country's sacred beaches could fall into the exclusive hands of Maori. In the face of widespread panic, Helen Clark decided to legislate away the rights of Maori to have their legal claims investigated by the Maori Land Court. How? By putting the seabeds and foreshores into what government called the 'public domain' and unilaterally limiting the definition of customary property rights. Somewhere at the Cabinet table, it must have seemed like a good idea.

The move caused a storm of controversy for the Labour ship. Maori were angry that their rights to due process were being taken away. National and the political right criticised the nebulousness of the concept of 'public domain.' The debate snowballed into arguments about Maori 'privilege' and opened up the psychological space for Don Brash's Orewa speech. Looking back, it appears as though Labour were stuck on the foreshore between a rock and a hard place.

But was it?

There was another option. The Clark government could have let South Island iwi take their case to the Maori Land Court. The Court of Appeal decision specified that Maori claims to customary property rights in the seabeds and foreshores would have to be based on rigorous standards of evidence. Justice Elias cautioned that the process would be difficult. Read: time consuming.

Hey! Did someone mention time? Now, there's a valuable political commodity!

Instead of pissing off Maori and exposing itself to right-wing and anti-Maori political fire, Labour could have simply allowed the South Island iwi to have their day in court. That day would have been many, many months into the future. Government could have deflected questions by saying that the matter was being decided by the courts, while at the same time it could have used the breathing space to negotiate with Maori groups in good faith. Clark could have used the time and goodwill from these negotiations to come up with legislation that would have vested ownership of seabeds and foreshores with the crown excepting those areas that could be proven in court to be subject to customary property rights.

And contrary to the alarmist hysteria perpetrated by the Herald, it's pretty clear that those areas would not have been overly large. Where Maori claims overlapped with subsequent freehold property owners or with popular beaches, Labour could have undertaken to negotiate and compensate in a process so complex it would have bored everyone to tears.

And maybe, just maybe, Don Brash's Orewa speech would have fallen on uninterested, mid-summer ears.

And if you think that this is all hindsight 20/20 stuff, read this.