Editorial: Foreshore law changes likely to be cosmetic

A collective groan is the most likely greeting for the Government-announced review of the Foreshore and Seabed Act. The sentiment may be shared by Maori, who have "moved on" most successfully since the act was passed in 2004. The issue gave rise to an independent political party which, two elections later, sits in partnership with a National-led Government. Maori and the rest of the country have come a long way.

The fears of five years ago have abated on both sides of the coastal ownership issue. The first recognition of a customary claim to foreshore and seabed under Labour's legislation is soon to be granted to Ngati Porou. The tribe has assured the public that as kaitiaki (guardian) of the east coast from Gisborne to the Eastern Bay of Plenty, it will not restrict access to the beaches and foreshore except for burial sites and rahui, and no protests have been
heard.

Similar claims are in train but have been suspended while the act is reviewed as part of National's agreement with the Maori Party. The exercise will be conducted by a panel headed by Justice Eddie Durie, a former chairman of the Waitangi Tribunal, and Attorney-General Christopher Finlayson wants the task completed by July.

The Maori Party will be just as keen to see the subject settled. Owing its founding to the foreshore and seabed, it could not now leave well enough alone. And at the end of the review it probably cannot leave Labour's legislation as it is. Something will have to change, if only to justify the new party's existence.

In Parliament yesterday, the party's newest MP, Rahui Katene, hoped the review would give Maori "access to the due process of law, nothing more, nothing less". Yet the terms of reference do not seem to invite a simple restoration of the 2003 ruling of the Court of Appeal that would have allowed customary claims to the coast to be adjudicated.

The panel has been asked to look into the nature of mana whenua and public interests in the coast before the 2003 ruling, and whether the 2004 legislation that over-ruled the Court of Appeal decision effectively provides for customary title and public interests in the marine area.

It has also been asked to review the options for responding to the Appeal Court's decision and, if it decides Labour's legislation was not the best response, to recommend a better one. None of these terms of reference appears to contemplate the possibility that the law, as stated by the Appeal Court, should be left to take its course.

It needs to be recalled that the court was not ruling on the merits of a case but on the general question of whether such customary rights still existed in New Zealand law. It ruled that they did, reversing a century of case law. But it foresaw some fairly rigorous criteria that claims would have to satisfy, mainly continuous ownership of adjoining land and a particular customary use of the marine area since pre-colonial times.

It would be interesting to see whether any claims would have succeeded in the Maori Land Court and survived appeal to the High Court. But we may never know because Parliament has taken the decision out of the hands of judges. The terms of the review announced yesterday suggests it will be kept out of their hands.

Ironically, the 2004 legislation has probably made it easier for Maori to establish customary rights than the court's decision did. The act provides for recognition of a claim that would exist but for the legislation. And since the claim is notional rather than proprietary, it is likely to be granted more readily.

Certainly the first, Ngati Porou's, seems to have struck little difficulty. And it gives the tribe as much authority as it could have hoped for from the courts. All sides might quietly prefer to leave the law as it is now. The most likely changes will be cosmetic.