Beyond the rocky shore

The controversial hui over the foreshore issue have ended. Political reporter RUTH BERRY looks at what happens next and explains why the problem is so complex.

When Wira Gardiner told people at the Government's first consultation hui in Whangara that time was short and they should ease up on the waiata, the tiny wharenui almost burst with song.

The following day in Maketu during the powhiri, a speaker for the Government played on the word Whangara to comment on the four-hour limit the Government had placed on each hui.

They didn't want four hours in Gisborne, they wanted "e wha nga ra" - four days, he joked pointedly.

Such humorous moments were also symbols of the tensions between Maori and the Government over its foreshore and seabed plans.

It was not that those gathered at the Gisborne marae necessarily wanted each speech followed by a waiata. Rather it was a reminder that the marae, not the Government-appointed co-chair of the hui, should determine tikanga (protocol).

No one wanted to talk to ministers for four days either - but the quip served as a metaphor for how far apart the groups have been on the consultation.

The wall of opposition that confronted the Government during its month-long hui roadshow, which finished yesterday, has hardly been surprising.

Prime Minister Helen Clark made a calculated decision to give priority to what she said were the fears of the Pakeha electorate when she and Attorney General Margaret Wilson outlined their plan of action at a post-Cabinet press conference on June 23, only four days after the Court of Appeal decision was released.

When Wilson asserted Government ownership of the foreshore and seabed to circumvent the court's finding that Maori could be able - in a limited number of cases - to assert freehold title, the Government had weighed one backlash against another and opted to weather the Maori one.

Only months beforehand, the Government had taken a similar path by brushing aside a Waitangi Tribunal finding that Maori retained an interest in oil and gas nationalised in 1937. It acted then before the report was even officially released.

Launching pre-emptive strikes before the ink was dry to counter Opposition attempts to ratchet up fears in the void after the release of the decisions was, in both cases, foremost on the Government's mind.

In both cases Maori were placed in the invidious position of watching the findings of serious inquiries - not dissimilar to others about indigenous rights occurring across the international community - being quashed in a seemingly cavalier fashion without due consideration.

In the foreshore and seabed case, the Government's plan to remove a right the Appeal Court's judges had unanimously said existed ensured that the dominant tone of the discourse, from a Maori perspective, was "loss".

The banners were already being wearily hauled out of the cupboards by the time the Government attempted to redefine the issue as a win-win one.

Particularly galling to Maori was the perception that the Government was exaggerating fears Maori would move to exclude the public if their cases succeeded.

Either it revealed how poorly the Government understood how Maori viewed the issue or suggested it was deliberately blowing up the "hypothetical" threat to justify extinguishment of freehold title.

It fed into stereotypical perceptions of "greedy" Maori, which caused further consternation and hurt.

Moana Jackson, in a submission delivered to the Government in Hastings on behalf of Ngati Kahungunu, summed up a widespread feeling when he said having "erected the bogey that Maori might deny access, the Crown now seeks to rationalise why it should act to prevent it happening" thus portraying itself as the defender of public rights.

Having argued the exigencies of realpolitik, the Government then argued against developing its proposals formally with Maori - saying it needed to develop its own position before engaging in talks.

Maori countered that their customary rights were the subjects under discussion, and as only they could define their nature and extent, they should be involved in the process.

That they were not - beyond the closed-doors discussions - caused further irritation.

Inseparable from the immediate debate and echoed at hui after hui is the long and painful history of land confiscation and loss, and repeated experiences of not being heard by successive governments.

Colin Bidois, the convener of Te Runanganui o Tauranga Moana, summed up the disappointment expressed at many hui that the Crown's handling of such issues appeared not to have matured.

He told ministers at Maketu: "We could have been standing here in a spirit of genuine co-operation and partnership to jointly evolve solutions - as was envisaged by the Treaty of Waitangi."

Prime Minister Helen Clark said with frustration this week, "I think what we've run into is a sort of knee-jerk reaction against anything that the Government suggests."

It has been clear that some speakers at the hui - like most of the public - have little idea of the details of the Government's proposals.

The hui have primarily functioned as a vehicle to condemn what many believe was a kneejerk Government action in the first place - and that was a key message iwi wanted to send.

"Ownership" of the foreshore and seabed was important, but the need to maintain at least a degree of ownership over decisions made about such valued taonga had to come first.

The Government's Maori MPs fought in caucus for the consultation hui, well aware that vociferous condemnation of the process - a process with which several were privately horrified - would be part of any healing process.

There have been the practical problems. The Government's discussion document came out three weeks before the first hui.

The issue is complex and the document is deliberately vague. As one Beehive source said, "you could drive a bus through it".

That makes it useful for the Government to explore all sorts of compromises down the track without being accused of backing down - which may ultimately benefit Maori, too - but an oleaginous beast to deal with in the first instance. To expect groups to come up with considered and representative responses in such a short timeframe was ambitious.

Many iwi and hapu are struggling, lack adequate governance structures and resources to react quickly to what suddenly appeared on the horizon as an issue of huge cultural significance.

Treaty claims typically take years to research and more to negotiate. While some groups, such as Hauraki, have completed in-depth research relating to their customary rights in relation to the foreshore and seabed, others have not.

While many New Zealanders are increasingly aware of treaty jurisprudence, customary or common law rights are a somewhat foreign concept, even if you've been exercising them. The Government has struggled with the concepts. Wilson is believed to have privately moaned that it would be much cleaner if New Zealand's indigenous rights debate were confined within the treaty framework.

Suspicions that the Government's proposals were little more than the product of a few creative huddles appeared borne out this week.

The Waitangi Tribunal is holding an urgent hearing into the Crown's proposals in early November and Crown Law, in a memorandum to claimant lawyers, said there were no significant briefing papers held by the Government that led to the development of its discussion document worth releasing.

Why the haste?

Associate Maori Affairs Minister John Tamihere says the Government is worried the Maori Land Court may simply decide to begin hearing applications before it and issue a freehold title. "It could and it might. There's a lot of pressure on the chief judge."

But as Te Ope Mana a Tai chairman Matiu Rei said on Thursday, the court cannot begin hearing applications while Port of Marlborough Ltd's application to lodge an appeal with the Privy Council is still before the courts.

A spokesman for the company told the Weekend Herald this week that there were no plans to remove the application, although he wouldn't elaborate on whether the appeal would still go ahead.

Another senior Beehive source was more frank. "There's a bit of a view we'd like to get it cleared away. The general feeling is that the issue will take as long as you give it. If you said three years, it would take that long."

So where to from here?

Submissions are due in by next Friday and Cabinet will then make decisions.

It appears most likely that although various iwi leaders and other players will be in and out the door again, there are no plans for further formal consultation with Maori.

So the select committee process may provide the next big opportunity for input.

Most hui have supported the work done by Te Ope Mana a Tai, a group established by the Te Tau Ihu iwi, which took the Court of Appeal case, and the Waitangi Fisheries Commission that funded it.

It is drawing together a sizeable submission bringing together solutions mooted at the hui, from which many common themes emerged.

Its members, now including representatives from a number of iwi, have been at all the hui, providing regular updates and analyses of the Government's actions and proposals - activities which the Government has at times found frustrating.

When the Whangarei hui was called off, sources said at least one senior Government minister - Michael Cullen - turned on the group, accusing it - particularly former New Zealand First MP Tutekawa Wyllie - of stoking anger as part of an orchestrated campaign against the Government.

Questions were also fired at the commission around its involvement.

But lingering concern about the fisheries settlement - signed off by a handful of negotiators - and bitter years of wrangling over how it should be divided, has created considerable reluctance around allowing any group to purport to speak for all Maori.

Commission chairman Shane Jones unsuccessfully tried to convince fellow commissioners that the organisation should step in and take a lead role, arguing that a vacuum would benefit the Government.

Adding to the difficulties is the fact that customary rights are exercised at a whanau or hapu level, and many of those groups may not want their iwi negotiating on their behalf. In other cases many of the issues may be addressed through treaty settlements.

But given the concerns over inadequate consultation to date, the Government will have to move extremely carefully to avoid accusations of continuing to act unilaterally.

It faces major problems if the tribunal finds that its proposals constitute a modern-day treaty breach.

The creation of a new grievance, especially as a result of hasty and poorly researched actions, could leave a nasty scar.

There is room for common ground, as Clark has pointed out, although as many say the devil will be in the detail of the legislation.

Maori have made it clear during the hui that they are not wedded to the concept of freehold title, as it does not embody their understanding of their relationship with the coast.

Jackson noted the irony in the fact that it was the land court's predecessor, the Native Land Court (charged with stripping Maori of their land), that had developed a process to turn Maori collective land interests into freehold title in the first place.

Increasingly it appears likely the title issue will be resolved by the creation of a new type of title recognising significant Maori interests and rights over particular bays.

The rights would be held in trust for future generations and access would be guaranteed in all bar a few non-controversial circumstances.

Tamihere says "belts and braces" will be needed to change the RMA and the Local Government Act, to increase the obligation on local governments to recognise and respect distinct customary practices and rights.

Maori will get a greater say in the management of the coastal environment. Commercial development rights remain tricky and are likely to be negotiated down the track, as the nature of customary rights are further explored - and as ventures to commercially exploit coastal areas are proposed.

Local and central governments already benefit financially through regulation of such business ventures. Hapu and iwi, as emerging regional polities with recognised property interests, may seek similar revenue.

Maori are expected to get a slice of the action in the aquaculture legislation, creating a framework for the multimillion-dollar industry carving up marine space, to be unveiled in the not too distant future.

Essentially, however, the customary rights the Government has promised to protect are those already being exercised today.

The average beach user - Pakeha or Maori - is therefore unlikely to have much of a different experience this summer or next summer.

The lens through which people look at the coast may have changed, however, raising questions about whether their own turf warfare propelled politicians to draw much deeper lines in the sand than were actually there.


What is at stake

* Customary Right: A common law right recognised in international law and domestic law of some countries. Includes recognition of interests and associations of indigenous people with particular places. Includes on-going exercise of mana and authority (rangatiratanga) over an area and the customary practices (such as fishing, gathering) exercised within it. Key debate is over extent of right: does it equate to full ownership, does it include commercial development rights?

* Customary title, customary land. Legally means land which has traditionally been and is still used by indigenous people. No formal title attached. Usually converted to a freehold title.

* Freehold title, fee simple title. Owned by specified people. Can be bought or sold.


Timeline

June

* The Court of Appeal rules eight South Island iwi can pursue claim to customary and freehold title to the foreshore and seabed in the Maori Land Court, although it signals "real reservations" about the claim's ability to succeed.

* The Government, which had argued the Crown already assumed ownership, says it will now legislate to assert it, also promising to protect customary rights.

* Maori widely condemn the plan and accuse the Government of another land grab. It says its actions are designed to protect public access.

August

* Government issues discussion document proposing to place foreshore and seabed in public domain with four principles designed to protect public access and customary rights. Drops "ownership" word.

September

* Plans resoundingly rejected during a month of consultation hui with Maori. Thirty electorate meetings held by Labour MPs.

October

* Public submissions due October 3. Government to provide revised proposals to Waitangi Tribunal claimant lawyers by October 17.

November

* Waitangi Tribunal to investigate whether Government plans breach the treaty.

December

* Government plans to introduce legislation.


Treaty rights

What other agreements have been reached in treaty settlements which protect customary/treaty rights around waterways and associated resources?

* Ownership of lakes and riverbeds (not water) can be vested in iwi; involving protection of existing property, use and public access rights - although provision for control over access to some waterway space can be negotiated.

* Camping entitlements (nohoanga). Exclusive camping rights for fixed periods of time each year on Crown-owned land near lakes or rivers for food (often fish) or resource gathering purposes.

* Statutory acknowledgments - recognise sites of high significance including rivers, mountains and the coast. Strengthens notification requirements under the RMA, imposing extra conditions on decision-makers.

* Customary fishing rights were mostly addressed in the 1992 Fisheries Settlement. It secured Maori fishing quota and assets to participate in commercial fishing, a set of regulations for the non-commercial take and measures to enhance input by Maori in fisheries management processes.


Consultation

Legislative acknowledgment of whanau, hapu and iwi

* The RMA, the Local Government Act and the Conservation Act place requirements on local and central government to consult or take account of iwi and other groups when it comes to coastal and environmental protection issues, protection of sites of significance and resource management. Maori widely consider many of the provisions inadequate.

* Co-management or joint management occurs in some places, as a result of treaty settlements or enactment of legislative provisions. What it means in practice is varied.