Just let us pause for a moment: if the legal status of the
foreshore and seabed is to be "public domain", then who owns
it, and therefore can claim the rights and benefits of
Will Mr and Mrs Joe Bloggs?
Will the Crown - the obvious choice?
On the basis of the options paper published by the Government
last week, in which "public domain" is the Government's
preferred choice, the issue of ownership most likely will be
determined in the long term by the courts, piece by piece,
Remember that the Clark government's law placed the disputed
foreshore and seabed in Crown ownership, while guaranteeing
Maori customary rights, but removing the right of Maori to
test its property rights (if they existed) in the courts.
Now the preferred option creates a "public domain" which,
according to the Government, no-one can own, while granting
to Maori the right to seek customary use (but not freehold
title) through the courts.
This, presumably, is the Prime Minister's "elegant solution".
Nobody yet knows quite what customary title might actually be
under the proposed regime, let alone who might qualify for it
(such as urban, non-tribal Maori), or whether it will even be
That touchstone is to be the subject of "consultation" over
the next month or so, although there seems regrettably to be
little apparent interest from the other major stakeholder in
the "public domain" - namely non-Maori - who would do well to
witness the recent act (since reversed) by the Port Nicholson
Block Treaty Settlement Trust to ban duck shooting at the
Some tribes have established such customary rights with the
Crown as part of Treaty of Waitangi settlements, but most
Some have sought it from the courts - notably Ngati Apa,
whose claim raised the possibility, in some narrow instances,
for Maori customary title to convert into freehold title -
which led to the Clark government's law, since it raised the
possibility of Maori control of parts of the coastline.
John Key is being misleading in suggesting no-one will notice
much difference if his Government's "public domain" proposal
As it stands, the preferred proposal claims to continue to
extinguish the possibility that Maori could still convert
customary title into freehold title.
Yet the Maori Party owes its foundation to the Labour
government's Act which cancelled that very prospect.
Customary title, it is proposed, might include rights
to conservation and historic artefact management as well as
traditional use, but it cannot be "ownership" in the private
Public access to the coast remains assured, so the Government