Editorial: Foreshore and seabed back on the agenda

A section of the Whakatohea tribe in the Eastern Bay of Plenty clearly have the Government worried about their claim to 50km of the coast, which the Maori Land Court has agreed to consider under the new Foreshore and Seabed Act. Deputy Prime Minister Michael Cullen's extraordinary accusation that the court's chief judge, Joe Williams, took steps to publicise the case demonstrates the extent of its concern. The Government and its ally in the foreshore legislation, New Zealand First, are more rattled by the court's acceptance of the claim than the claim itself, and well they might be.

To accept the case, they say, the court has had to read the act more broadly than the legislators intended. They had in mind when they passed the act that any customary rights it would recognise would relate to specified activities at a fixed spot. But the Whakatohea claimants are seeking declaration of rangatiratanga and kaitiakitanga - tribal authority and guardianship - over the entire coast of their pre-colonial territory. The court's decision that the act does not preclude such a claim undermines the Government's legislative solution to the foreshore and seabed.

Rangatiratanga and kaitiakitanga might fall well short of freehold title to the beaches, which almost all parties in Parliament were anxious to prevent in the wake of the potent decision of the Court of Appeal. But tribal authority and guardianship over the beaches could go much further than the rest of the country is willing to accept. It implies at the very least the tribe would have a say over what others can do on the tidal zone and seabed.

It will be years before the claimants' rights are finally defined, probably by the Supreme Court, but the mere acceptance of the case could make life difficult for Labour and its allies in the months ahead to the election. The National Party and Act already have begun to point out that the court has made nonsense of Labour's legislative solution and any attempt to close off the court's interpretation by further legislation between now and the election would revitalise the Maori Party's founding cause. As Maori Party co-leader Pita Sharples told the Herald on Sunday, "I don't think they would dare [legislate again] unless they have completely given up on the Maori seats."

Labour has made this problem for itself by settling upon a typically fuzzy solution to the foreshore problem. It has neither permitted customary title nor precluded it entirely. It has provided a kind of academic recognition of customary property, allowing the courts to declare that claimants would have been able to establish a right but for the Foreshore and Seabed Act. In those cases the legislation obliges the Crown to negotiate compensation, but the value of such a declaration to the claimants probably exceeds any monetary consolation they might receive.

The declaration might be merely academic to those who drafted the legislation, but to Maori it would be a powerful encouragement and endorsement of the claim. Maori regard the Foreshore and Seabed Act as a setback, but perhaps not to the extent their leaders pretend. Labour's Maori MPs are not alone among their people in believing claims to the coast were politically unrealistic. The act gives the claims greater credibility than they might have expected.

The act also makes it easier for the courts to find in claimants' favour than it might have been if the decision was going to have troublesome consequences. Would the Maori Land Court have entertained this claim, for example, if it had the power to award Whakatohea ownership of the coast? The court has the power to award something less - though more, it believes, than the legislators say they intended. Judge Williams will not be the only judge to read the act more liberally. His decision has put the subject back on the judicial agenda. Legally and politically the foreshore and seabed is far from settled.