Brian Rudman: That's it? Sorry Dr Brash, it's not enough

It's not so long ago that former US President George Bush said whoops, Saddam Hussein didn't have weapons of mass destruction hidden under every date palm after all. But it ain't my fault, he deliberately fooled us.

That was after the President had unleashed the deadliest invasion of one country against another in recent history.

On Sunday morning television, former National Party leader Don Brash did his own little whoops confession. He admitted he was wrong to have opposed Maori having their day in court over customary use of the foreshore and seabed, and conceded that if the iwi involved had been allowed to test their case before a judge in 2004, "we might have avoided a great deal of subsequent history".

He said: "A number of legal experts have suggested ... the ability to prove customary right would actually have been quite limited and we might have avoided much of the controversy that occurred."

This from the man who deliberately stirred up an anti-Maori tsunami amongst Pakeha voters to boost his flagging poll results, and scratched the racist itch so successfully, he all but took power in the 2005 election - doubling National's voting support in the process. And all he says now is whoops, we got it wrong.

Dr Brash's comments were by way of a curtain-raiser for his successor, Prime Minister, John Key, who on after Monday's Cabinet meeting, said the Foreshore and Seabed Act would almost certainly be repealed, but that no decision had yet been made on what would replace it. As the new boy on the block and the arch-pragmatist, Mr Key is not burdened by past baggage on this issue.

But bringing his party colleagues with him could be problematic. Many were fellow sword wavers, in Dr Brash's crusade, and know how electorally popular, racist scare-mongering can be.

The mass hysteria erupted in 2003 when the Court of Appeal ruled that the Ngati Apa tribes in Marlborough may - only may - have a customary right to farm fish, dating back to before 1840. Parliamentarians from across the political spectrum competed to predict the scariest of outcomes.

To its shame, the Labour Government got so spooked it introduced the Foreshore and Seabed Act which sparked off the biggest Maori protests since the 1975 land march, and resulted in the creation of Maori's most successful political vehicle, the Maori Party.

Whether Maori have any residual customary rights over seabed and foreshore had been argued, on occasion, in the courts, since 1840 with inconclusive results.

Labour's solution, in 2003, was to pre-empt any possibility that a court might decide, not judge, that a Maori group had customary title to fish, but also, that it had the right to convert this to freehold title. The Crown, in effect, confiscated all foreshore and seabed not already in private ownership, with the proviso that anyone considering they had a customary right to use a piece of land, could make a case to the Crown.

It's easy to forget that National, now playing the Maori's best mate, opposed Labour's legislation, not because it was unjust, but because it was too soft.

In September 2003, National Environment spokesman Nick Smith talked of Labour "feeding the grievance gravy train" and declared "National would legislate for continued public ownership in the name of the Crown".

On December 18, 2003, as New Zealanders were preparing to head off to the beach for the summer holidays, National's Constitutional and Treaty of Waitangi Issues spokesman, Dr Wayne Mapp released a hysterical press statement entitled "Maori Gain Control of the Beaches". It was in reaction to Labour's draft foreshore bill. He talked of a time bomb's ticking and declared it "likely most of the coastline will now end up subject to customary title claims". He said "the Government has sold the birthright of all New Zealanders".

A few days later, Dr Brash added to this scaremongering on these pages, putting his name to a piece claiming "Maori will have the right to build boat ramps, jetties, reclamations for tourist hotels and buildings over the water ..." and will have "veto power over anyone else's development, whether commercial or recreational".

He said customary title would, over time, "erode public access" and enrich "small sections of the Maori aristocracy".

That Christmas Eve article turned out to be a dry run for his Orewa speech a month later. Nicky Hager reveals in The Hollow Men, the expose based on leaked Brash emails, that the speech was drafted by his chief strategist and adviser, economist Peter Keenan.

It was then massaged by one-time Labour minister and Waitangi Tribunal member Dr Michael Bassett. National's resident Svengali, Murray McCully, "also reportedly had input".

Mr Keenan had recommended in a December 13 email to Dr Brash that he make "a big splash" at Orewa on race relations.

"It will come after a summer with demonstrations on beaches, so that should set it up well." Dr Brash agreed, ignoring warnings from another adviser of the dangers of Maori-bashing.

On the foreshore issue, he told his Orewa audience: "National will return to the position where, for the most part, the Crown owns the foreshore."

He attacked the "dangerous drift towards racial separatism" and attacked a situation "where the minority has a birthright to the upper hand".

National would remove divisive race-based features from legislation, scrap special privileges "for any race" and remove the obligation for local authorities to consult Maori. It would remove Maori seats from Parliament.

After pushing all the racist buttons, National saw its poll results rocket from a long stay in the low 20s, to 45 per cent. Nicky Hager noted that exultant Brash staffers celebrated by using, "facetious kia oras to each other in their emails".

Five years on, Dr Brash slips almost unnoticed on to Sunday morning television, to confess he got it wrong.

What an inadequate non-apology that is, after the hatred and divisiveness he stirred up.

If he really means it, he should be shaking down the rich moneybags that financed his bid for power, so he can pay for a few billboards of the iwi/kiwi style, to show he really is sorry.

Meanwhile, his successor John Key, is attempting the impossible. Trying to keep his Maori Party allies happy by scrapping the hated act, while at the same time, trying to find a solution that Dr Brash's fellow alarmists, the likes of Nick Smith and Murray McCully, will agree with.

Speaking after the Cabinet meeting, he said "it is in New Zealand's interests to ultimately get to the point where there is very wide cross-party support".

Given the history, convincing his own MPs and supporters of the justice of the Maori case, and the errors of National's earlier stance, could well be Mr Key's most difficult task.