Editorial: Positive mood for talks on foreshore law

Opinion

John Key struck an optimistic note as he confirmed that the foreshore and seabed law would almost certainly be repealed and a replacement found. "I think this is not as difficult as everyone says. I'm not saying it's not challenging. But it's not impossible," he said. The Prime Minister has some reason for his confidence. Much of the sting has gone out of the coastal ownership issue since a pressured Clark Government trampled on a customary right recognised by a Court of Appeal ruling in 2003. Assurances by claimants that access to the coast is not at risk have had time to register with the public, and there appears no political appetite to rekindle antipathies. That creates an environment where there is no need for undue haste and, no matter the undoubted complexity of the task, a reasonable prospect of success.

This week's Cabinet discussion involved the review of the Foreshore and Seabed Act by a panel set up as part of National's post-election deal with the Maori Party. It suggested four options and favoured resolution of ownership and rights by negotiations between iwi and the Crown, nationally for overall policy and locally for particular hapu and areas of coastline. Mr Key has given little away, but this seems the logical thrust of talks orchestrated by the Attorney-General. A crucial factor in this will be the emphasis placed on settlements hapu by hapu, as opposed to overall policy.

There are other conundrums, not least for the Maori Party. One is whether the negotiation of claims will be directly with the Crown or the subject of court proceedings. Negotiating claims with the Crown was the upshot of the previous Government's legislation. It appeals as being somewhat less taxing than litigation and more open to compromise. Yet the Maori Party's antagonism to the act, the very reason for the party's creation, suggests it should be keen to resurrect access to the courts. This would also serve the public interest. An open forum is preferable to the negotiation of claims behind closed doors.

Mr Key has pointed out that there is still the option of repealing the law with no replacement. This would mean a return to the status quo and allow claimants to test cases in the Maori Land Court and the High Court. But that seems an unlikely outcome. The panel found it would be "protracted, laborious and expensive and could result in an unmanageable patchwork of litigation".

Pragmatism is likely to guide the Maori Party to the same conclusion, despite its distaste for the ingredients of the Foreshore and Seabed Act.

It will have noted, particularly, that a customary claim to foreshore and seabed was granted to Ngati Porou after negotiations under that act. The iwi received as much authority as it could have hoped for from the court process. In turn, it reassured people that, as guardian of the coastline from the eastern Bay of Plenty to Gisborne, it would not restrict access to beaches except for burial sites and reserves. The whole process proceeded quite smoothly, and other claims were suspended by the review process.

The Maori Party expects a replacement policy by the end of this term of government. Labour has pledged to act constructively. The bottom line for the Government will be New Zealanders' continued unfettered access to the beach. The Maori Party will have ease of recognition of customary rights as its top priority.

That suggests claims will be kept out of the hands of judges, and this will be a process of tinkering, not transformation. The change will probably be minor. But tackling them in a wholly different atmosphere will be a major improvement.