A divisive veto

Maori tribes have been considering the Government's proposed replacement for the Foreshore and Seabed Act and it is fair to say most did not like it.

They were suspicious about the Government's apparent motives.

These were thought to be twofold at least: a further embrace of the Maori Party and its supporters into the arms of conservative coalition rule; and to lance an uncomfortable inherited political boil that was not healing.

Mr Key's party recently had a round of regional conferences of party members, too, where he and his colleagues were reminded that the National Party's coalition partners are very minor players in the main game and that party subscribers had the impression the caucus was bending its collective knee in tribute rather too often.

The knee has been bent again, in the announcement of the proposed final version of foreshore and seabed legislation.

While it is too soon to determine a conclusive outcome, it seems a new class of property owner is to be created with superior rights, as well as unlimited opportunities for the courts to create precedent exclusive to one ethnicity.

"One law for all" has thus been abandoned on the cusp of indigenity.

The Government had acknowledged four interested parties with a stake in the foreshore and seabed: recreational and conservation groups, Maori tribes, private business and development organisations; and local government.

Monday's proposal is dedicated to the second alone.

The rights of the others have been ignored - at this stage.

That may change when the legislation is eventually returned for parliamentary consideration and after the public have made submissions.

The rights that have been granted to Maori include, most significantly, a new property right: that "customary" title can be claimed over the foreshore and seabed, defined as the area between the line of mean high water springs and the outer limits of the territorial sea (12 nautical miles from shore), including the air and water space above the land, and the subsoil, bedrock and other matters below, such as minerals, for example ironsands and silica, that have not been nationalised.

Tribes will have to show continuous and exclusive occupation of the area claimed since 1840, a prospect subject either to determination by the courts or by negotiation with the Crown; and those who have already reached "full and final" Treaty of Waitangi settlements will be able to return to seek customary title.

A successful claim will result in a deed giving title to a coastal area - a property right - but it will prohibit any sale or the blocking of public access.

However, tribes will have considerable control, including the vetoing or initiating of developments, and the permitting of activities.

For example, existing rights of fishing and navigation, and existing use rights such as licences, leases, consents, will be retained - but only to the end of their terms.

Tribes will also have the right to create a planning document recognised and provided for by local government.

The legislation will also create something called "mana tukuiho" in law, which will mean Maori will have "mana" over the foreshore and seabed and that will grant them rights over conservation issues that must be recognised by local authorities and other statutory bodies.

Maori will have the right to obtain commercial benefit from its customary title, and, indeed, whatever else a tribe can negotiate with the Crown.

The much-touted creation of "public domain" merely consecrates the guaranteed right of public access and rights of navigation, but now subject to any conditions placed by tribes on recognised customary title land.

It is not all one-way, however.

There are some 12,500 private titles comprised of Maori and non-Maori owners of general land, and owners of Maori land, that include at least some foreshore and seabed.

They are not affected by the proposed legislation, meaning the land can be treated by their owners just like any other private title - an inconsistency that seems bound to be challenged.

The Government has had its way with its favoured plan, and despite contending otherwise, has made some concessions whose effective outcome may be determined not by elected Parliament but by unelected courts - hardly a desirable situation in a property-owning democracy headed by a Government which purports to have sought "balance" in its scheme.

The Maori Party can claim a long-term gain sufficient to cover any embarrassment about its short-term compromise.

There may yet be room for adjustment, or at least for some acknowledgement of the equal status - if it still exists - of the vast majority of New Zealanders, including urban non-tribal Maori, whose future connection with the foreshore and seabed is apparently to be legally classified as of inferior virtue.

Thus does grievance lie upon grievance.