The wrongs and rights over new access to the foreshores

Adriana Edwards is pictured with Maria Melvin at Opotiki Beach. Photo / Doug Sherring

Public access to the foreshore and seabed is no longer a "bottom line" for government policy-makers. Matt Nippert visits the first piece of coastline to be claimed by Maori under the controversial law.

Opotiki is a small settlement, barely 10,000 people strong. It climbs from the low-rise, predominantly Maori township, set back from the sprawling beaches, to the hilltop houses with ocean views owned by the better off, mostly Pakeha, residents.

Despite the small population, the area is vast. More than two-thirds of land is conservation estate, and the coastline stretches a full 150km. And it is this coastline, comprising sandy beaches and mangrove-sprouting wetlands, that thrust this small community into the public eye.

In 2005 Whakatohea, the local iwi, made the first claim under the contentious Foreshore and Seabed Act for customary rights to 47km of coastline. Claimant Adriana Edwards, a grandmother sitting in her modest Opotiki home, says the claim has historic roots. "We've had unbroken occupation going back hundreds of years."

Ranginui Walker, emeritus professor of Maori studies at the University of Auckland and a Whakatohea kaumatua, foreshadowed the debate that was to come in an open letter to the Crown published in 2003 in the Listener.

Writing of the military action that followed the murder of missionary Sylvius Volkner in March 1865, Walker wrote: "You made war on me, executed one of my chiefs, notwithstanding his protestations of innocence, and confiscated most of my land.

"You, like the Indians of America, put me on a reservation, known as the Opape reserve. The land that you confiscated for the military settlers of your tribe took away 30km of my coastline from Ohope to the Waiaua River."

In words that proved prescient, Walker asserted his tribe's rights to use the legal system and attempted to head off criticism at the pass: "I reserve the right to apply to the Maori Land Court for title to that bequeathed to me by my ancestors. I will not sell one millimetre of my coastline, and I will continue to share it, as I always have done, with those who love kaimoana as I do."

Edwards says the tribe is seeking kaimoana and kingitanga rights - in essence, the right to collect seafood and manage the water environment.

"For all of us along the beach it's very much part of our lives. Our hapu, we've actually managed the resource, especially through the summer months where it's pretty much trashed."

The beach and foreshore is one of the main food sources of the iwi, she says. Mussels, kina, paua and fish are collected for occasions ranging from everyday kai to funeral and marriage feasts.

Of course, concerns were raised over access, but they tended to come from outside the district. "One of the fears is about access," says Edwards. "We've never said we're going to deny access."

Opotiki district mayor John Forbes, too, says fears about restriction of access are overblown. "I've never had any issue being anywhere," he says from his ridgeline home.

"Most of the abuse comes the other way, from Pakeha, and often out-of-towners. For instance, say a dive club comes along with a couple of deep freezers, and spends a week cleaning out all the crayfish."

Under the Foreshore and Seabed Act, Forbes says Whakatohea had a mountain to climb to succeed.

"The hurdles of that law are really high. To prove cultural use, and exclusive cultural rights, they have to prove ongoing use since 1840. That's like picking the bloody Lotto numbers three weeks in a row," he says.

Forbes wishes the claimants all the best, and he says the parlous state of local Maori wellbeing is at least partly due to the historic injustice Walker sketched out in his open letter.

"We spent nine months hunting down and killing Maori. Scorched earth. That's why they're still munted. That's some of the background with the seabed and foreshore."

DESPITE THEIR amicable relationship with the mayor, the road walked by Whakatohea hasn't been easy. The original claimant, Claude Edwards, passed away. And initially Ken Kameta, the chair of the Whakatohea Maori Trust Board, distanced himself from the Maori Land Court proceedings.

"I have my reservations," Kameta said in 2005. "We have had no input into the initiative."

Then Prime Minister Helen Clark attacked the claim as being "wider than the law will allow for", and Attorney-General Michael Cullen attacked the presiding judge for even hearing the case.

How times change. Edwards, Claude's daughter, has inherited the title of claimant; her uncle Robert Edwards succeeded Kameta as chair of the Trust Board; Clark and Cullen resigned after last year's election.

And now, after a deal struck between the Maori and National parties to repeal the Foreshore and Seabed Act, Edwards' claim - with many subsequent cases filed with the Maori Land Court - is stuck in limbo.

Four years on, Edwards is willing to discuss criticism that the claim was worded in such a way as to subvert the intention of the Foreshore and Seabed Act, by claiming broad customary rights that were identical to title.

"We were saying: 'If the courts won't acknowledge our customary role, we'll have to find a way around it'."

Half of this subversion was through the claim. The other was poured into the Maori Party. Edwards says she was "quite active" in the formation of the party, and served as fundraiser for Te Uroroa Flavell.

This bore fruit last year, when the Maori Party struck a governance deal with National that required a review of the Act.

Victoria University associate law professor Richard Boast sat on the Ministerial Review panel and he says the crux of the issue was finding a way to simultaneously satisfy concerns over public access as well as claims for customary rights.

"It would be idle to pretend the two can be balanced easily and without any thought - but to say they're mutually contradictory is wrong. Otherwise it's just a matter of two sides shouting at each other," says Boast.

The odd marriage of the Maori Party and National seems to have lowered the volume and now respectful conversation is taking place. "There seems to have been an outbreak of sweetness and light," says Boast. "How long that will last, who knows?"

IT SEEMS, no one wants a repeat of the 2005 furore. Shadow attorney general David Parker certainly doesn't. "The Labour Party are absolutely sure we're not going to rark it up and scratch racist scabs and cause fear in people that they won't be able to go to the beaches."

Parker says that as long as there is a legislated right of public access, Labour is sanguine about what the Government proposes. Parker says the debate now is several degrees cooler than that which took place earlier. "It's a more responsible and benign attitude now, which has given the country space to work out a solution."

Even Don Brash, the frontman for the divisive Iwi/Kiwi billboards that put the foreshore issue centre-stage in the 2005 election, has made a belated mea culpa - which Labour MP Shane Jones says was equivalent to being "mugged on the way to Damascus".

But the former National Party leader told Q+A last week that Labour letting the issue lie - and not enacting the Foreshore and Seabed Act in the first place - would probably have short-circuited any racial antagonism.

"I suspect that, had the iwi concerned been allowed to test their case, we might have avoided a great deal of subsequent history," Brash said. "The ability to prove customary rights would actually have been quite limited. And we might have avoided much of the controversy that occurred."

There is no timetable for what comes next. Prime Minister John Key has said the law will almost certainly be repealed, but not until what replaces it has been worked out.

A spokesman for Attorney General Chris Finlayson, whose office is drafting the replacement, says: "Work continues apace to generate a satisfactory conclusion to balance the interests of all New Zealanders - of families to enjoy the beaches, and recognition of customary interests."

Interestingly, in perhaps a signal of a change, the right of public access and the acknowledgement of customary rights have become "guiding principles" rather than "bottom lines" in this drafting process, a Beehive official says.

Politically, the Maori Party requires change to come before the 2011, but this still leaves a possible two more years of limbo for claimants such as Whakatohea, and the communities abutting the coastline.

Not that Edwards is complaining - the repeal of the Act was always more important than their claim under it.

But is the delay disappointing? "Yes. But it's a good thing National's doing," she says.

Edwards wants to be able to submit the Whakatohea claims to the Maori Land Court and seek title.

Failing that, negotiate directly with the Crown for a settlement that includes putting the foreshore and seabed on the table, as the East Coast's big Ngati Porou iwi has done.

Public access won't be an issue in Opotiki, she says, but it might possibly be elsewhere.

"It's not about denying anyone access, but the law needs to recognise access can be negotiated," Edwards says.

WHILE THE CLAIM for Opotiki's beach awaits the conclusion of the Attorney-General's work, a parallel development off the coast is also slowly taking shape.

Trust Board chairman Robert Edwards says an eight-year campaign to develop New Zealand's largest mussel farm is nearing its culmination. Test lines are to be dropped early in the New Year, and the plans excite both the iwi and the local council.

The development promises to generate millions in income for the region, and employ 500 people in a district that suffers chronic unemployment.

The council and iwi have also started talks with Chinese seafood company Oriental Ocean, with a view to leveraging New Zealand's free trade agreement to generate access to one of the largest seafood markets in the world.

It is fair to say that access to the mussel farm waters will be shut off to locals - Maori or Pakeha - who might at present take out a dinghy and drop a fishing line over the side.

The aquaculture industry has sailed along unimpeded by the ructions of the legal status over the seabed and foreshore. Indeed, a 2004 decision has flagged 20 per cent of all marine farming space established since 1991 to be given to iwi authorities. Submissions to a Government technical advisory group on aquaculture policy and the 20 per cent allocation close next month.

Boast says the development of aquaculture is somewhat ironic, given that the original Ngati Apa decision that sparked the Foreshore and Seabed Act was about the allocation of coastal space for marine farming.

"The whole Resource Management Act is predicated on the assumption that the Crown does in fact own the foreshore and has the right to allocate it; the Ngati Apa decision said that was completely wrong," he says.

"That's one of the reasons we recommended that - at least for the time being - the foreshore should remain in Crown hands."