Foreshore campaign mainly smoke and mirrors

By RUTH BERRY, political reporter

The public has struggled to understand the foreshore debate and this is probably somewhat fortuitous for the Government.

Because after nine tortuous months, full of sound and fury, it has really done just one thing - that which it said it would do within days of the release of the Court of Appeal's decision.

It has vested the foreshore and seabed in Crown ownership, thus preventing Maori from realising claims to it.

Everything else is and has been largely smoke and mirrors, aimed at suggesting Maori will get something in exchange for losing that opportunity. They won't, under the legislation unveiled last week.

Iwi representatives could not be blamed for concluding the endless negotiations were about nothing more than satisfying the Crown's obligation to consult.

The foreshore plan essentially provides alternative avenues to protect use rights already - through other legislation - supposed to be protected.

Treaty settlements have also long been a vehicle to enshrine protection of such rights.

Stronger protection is being offered, but given that the activities and practices under question have survived since at least 1840 - and importantly that there are not many of them - it is questionable whether many groups will bother to go through the process at all.

Ngati Tama claims negotiator Greg White now laughs over the Taranaki iwi's lengthy negotiations with the Crown over how to legally protect, in its treaty settlement, its ability to gather hangi stones.

In the end they gave up on legalities, with iwi members deciding nothing appeared to be stopping them from going to the river and putting the stones in the boots of their cars anyway.

The proper protection of wahi tapu - particularly burial grounds - has been more problematic.

But the legislation does not guarantee wahi tapu will necessarily gain greater protection, as it directs the Maori Land Court to refer the issue to the Government where public access conflicts arise.

The "ancestral connection" system for groups to register their mana whenua over traditional tribal areas is also just a different way of recognising their kaitiakitanga or guardianship status - already requiring recognition under the Resource Management Act.

Helen Clark said this was nothing more than a way of formalising who held mana whenua over what area, although in some places that has already been formalised.

It would place "no additional" requirements on local authorities, she said.

This is a significant backdown by the Government, spooked recently into a review of the RMA and its iwi consultation provisions in particular, as a result of attacks by National.

The opening up of the High Court's ability to investigate common law claims to "territorial" or ownership rights was sold as a response to concerns Maori were being denied the right to due process.

The court can find, but for the move to vest Crown ownership, Maori would have to prove ownership rights and then direct the Government to negotiate redress.

But as claimants rightly point out, it is not due process as the legislation will expropriate the right to uphold ownership interests that the Government now acknowledges would, in some cases, have been proven.

But the key reason the High Court avenue is likely to have been opened is to sideline the Maori Land Court.

Just what the Government will offer to top-tier claimants - those who have always owned communal land abutting the foreshore - remains uncertain.

Deputy Prime Minister and bill architect Dr Michael Cullen has been engaged in extensive negotiations with Ngati Porou, who own much of that land on the East Coast, and they appear close to nutting out a basic agreement.

It will include what will be described as a formalisation of Ngati Porou's right - already being exercised - to manage its coastal area.

There will be formal recognition of its status, which the Government will say technically means "once were owners" and Ngati Porou will say means "we are still the owners".

If everything goes according to the master plan, the Government won't then have to compensate the iwi (or not much) as it won't have "lost" anything.

In all likelihood Ngati Porou will have an agreement similar to the ones Te Arawa negotiated over the Rotorua Lakes and Tuwharetoa over Lake Taupo, even though they have actual ownership titles ... the final irony.

But this is the way successive Governments tend to do their "treaty" business.

Key elements

* Foreshore, seabed vested in Crown.

* Public access guaranteed.

* Customary rights claims can go to High Court.