Editorial: Repeal bill is a new first step

Maori Party co-leader Tariana Turia. Photo / Mark Mitchell

Attorney-General Chris Finlayson stayed away from the House as the first-reading debate began on the bill repealing the Foreshore and Seabed Act.

It was a gracious gesture: although the Marine and Coastal Area (Takutai Moana) Bill is in his name, he wanted Maori Party co-leader Tariana Turia to be first to speak to it.

It was a fitting acknowledgement of the role she played in wrenching the 2004 legislation from the jaws of history.

It is something of an irony that National administrations have given us the two most respected Ministers of Treaty Negotiations - Doug (now Sir Douglas) Graham in the 1990s and Finlayson.

After the 1936 agreement at Ratana, Labour enjoyed a relationship with Maori that amounted to an informal alliance. But it sustained serious damage during the Clark premiership, from the Foreshore and Seabed Act and from Clark's now-legendary dismissal as "haters and wreckers" of those who led the subsequent hikoi of protest .

Her intransigence spawned the Maori Party, whose founding commitments included the repeal of the act, and this week's events - in sharp contrast to the spiteful divisiveness of the Brash era - suggest that National's agreement with the Maori Party is more than just political strategy.

Unfortunately, some try to depict the repeal as an act of surrender to Maori demands that ancient entitlements be honoured in modern law. But that is very far from being the case.

The 2004 act was a sledgehammer response to a Court of Appeal decision that had not "given" Maori anything: it had suggested that Maori might be able to seek customary title in the Maori Land Court to parts of the foreshore and seabed.

The Clark Government pre-empted that right; the act now before the House restores it. To quote Turia, it reopens a door that was slammed shut.

It allows tangata whenua to negotiate and, where negotiation fails, seek a court decision in their favour. These are rights we should not countenance being denied to any of us.

In any case, for those seeking customary title, the bar is set high: applicant iwi must demonstrate virtually uninterrupted exclusive use and occupation of the areas since 1840; areas to which title is granted cannot be sold; and free public access must be preserved.

Those who seek for political reasons to foment public anxiety about treaty settlements are fond of fudging history. And sensitive politicians pander to voters' fears. Thus John Key betrayed Tuhoe when he pre-emptively removed Te Urewera from treaty claim discussions.

Tuhoe was not asking to be given anything but to have restored to them entitlements guaranteed under statute and systematically reneged on. These are not mystical ancestral rights that iwi seek in Tuhoe and on the water's edge: they seek a fair go, and the right to be treated equally under the law.

The way ahead is not clear. Te Tai Tokerau MP Hone Harawira, who broke ranks with his colleagues to vote against the bill, foreshadows continuing discussion when he says that few iwi will pass the exclusive use and occupation test. The new law does not answer the questions about the foreshore and seabed; it simply allows them to be asked.

That's all right. Few pakeha - and most Maori - know that the relationship between them is an endless work in progress. And it is in the way we conduct the process - not in its outcome - that we can learn what poet Allen Curnow called "the trick of standing upright here".