The sore festers

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 ownership?

Will Maori?

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, over time.

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 granted.

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 Pencarrow lakes.

Some tribes have established such customary rights with the Crown as part of Treaty of Waitangi settlements, but most have not.

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 is implemented.

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 property sense.

Public access to the coast remains assured, so the Government says.

Mr Key has accepted that unanimity will not be possible on the matter, a remark which has been interpreted as meaning tribal Maori will not accept the preferred option.

He has said he is prepared to leave the Act effectively unchanged if agreement - meaning Maori compromise - cannot be reached.

Quite what this really means is moot.

It is also certain to foment Maori anger.

After all, if "public domain" is simply semantics for ownership by the Crown, then nothing has changed.

If the Government cannot reach an acceptable agreement with the wider constituency and with the Maori Party, then the latter - which joined the coalition precisely to obtain the repeal of Labour's Act - will have achieved nothing if a substitute Act repeats the prohibitions of the existing legislation.

The right to test a claim of customary preference in the courts may, indeed, be its only success.

On the basis of their public statements, some Maori MPs will find this unacceptable, especially if, as is claimed, the Maori Party caucus wants ownership of all the foreshore and seabed vested in Maori, with the condition that it cannot be sold.

One of the options proposed, but not preferred by the Government, is to vest ownership of the foreshore and seabed in Maori, determining who would hold ownership in a given area, while recognising others' rights.

It is more than likely the Maori Party will seek to negotiate on this basis.

None of the options would threaten parts of the foreshore and seabed currently in private ownership or an existing property right (such as a fishing quota), but whether Maori should be granted veto rights over developments in an area over which they have been granted customary title is likely still to be a step too far for the wider community.

The concessions the Government has proposed seem to be excessively one-sided: it has lowered the test for the granting of customary title and it has granted tribes many more hypothetical legal rights, including rights not secured under the Resource Management Act.

The Government claims this is a "balanced proposal", but on the basis of this document there is still plenty of room for both the Crown and Maori to act unreasonably.


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