Foreshore issue politician's toughest test

By AUDREY YOUNG, political editor

A look of self-annoyance fell across Michael Cullen's face in Parliament on Wednesday. The Opposition's taunts over the foreshore and seabed had riled him into responding in a way a little unbecoming of an Acting Prime Minister, especially one grappling with the biggest issue to face the Government in its four years.

"I have the microphone so I can go louder," he shouted over the bellowing opposite.

His outburst could perhaps have been forgiven, as it was the toughest week of the toughest problem that, as one minister put it, "arrived like an Exocet missile from nowhere".

Prime Minister Helen Clark has now returned from Nigeria, where she attended the Commonwealth Heads of Government Meeting, and Dr Cullen is back to plain old Deputy Prime Minister, Finance Minister and Fixit Minister, who will unveil his solution to the foreshore and seabed dilemma next Wednesday.

Though "solution" may be stretching it.

The neatly spun prose of press releases around the Government's proposals in August was that it had come up with a "win-win" solution.

The reality is closer to a "no-win" with the ultimate goal of minimising the criticism.

As another MP put it, "coming up with the best for Maori that middle New Zealand can stomach".

Or as one Maori player put it, "how to extinguish the right to claim customary title, without calling it extinguishment and without compensation".

Cullen himself noted earlier this week that at the starting point were fundamental, irreconcilable differences.

Many Maori have believed their relationship with their patch of foreshore and seabed is akin to an ownership relationship, and that the Court of Appeal has recognised what they have always known.

Most Pakeha believed otherwise, were hugely surprised by the decision and heartened that the Government moved swiftly to overturn the decision and assert Crown ownership.

The passion of belief in each side shocked the other.

Prime Minister Helen Clark called on Cullen, the only logical choice to handle the problem.

He represents solidity in the Government, a valuable commodity for a problem of such latent volatility. He is also practised in the art of pragmatism.

After stumbling in the so-called winter of discontent in 2000, when he got offside with business, his stature has grown with each bundle of trouble handed his way: Maori Television Service, rotting homes, Air New Zealand, the energy crisis and Tranz Rail.

But the foreshore and seabed conundrum is a different league altogether, having the capacity to alienate two precious constituencies that give Labour power: Maori and middle New Zealand.

If the policy is not finely balanced, it could be "outski" for Labour.

Colleagues universally praise Cullen's brain power and capacity for work.

He has applied a mixture of logic, law, politics and cultural understanding to try to find an answer with least resistance.

Such are the sensitivities, few are willing to speak publicly, even in praise of him, although Associate Maori Affairs Minister John Tamihere said it was "a privilege to work with him".

"The busier he is, the better he operates. It's amazing.

"We will not satisfy the screaming meemees at either end of this debate. And so therefore, so long as he's fair, and that's all I ask, that's my standard, you can ask for no better - and he's a fair bloke.

"He will always be able to meet you somewhere, not right to nth degree that you want. But he will always be able to mitigate your worst problems and get a result."

The issue has been Cullen's priority for the past two months.

After the flogging he and other ministers received at consultation hui in September, he went "underground" to run two streams of meetings.

First was the policy development involving officials and political colleagues. The lead official working with Cullen has been Mary Anne Thompson, director of the policy advisory group in the Department of Prime Minister and Cabinet. This is the group that has been developing and fine-tuning the August proposals.

Alongside it have been the meetings with interest groups such as local government, port companies, the key foreshore Maori group Te Ope Mana a Tai, and other Maori groups and tribes.

After their respective inputs, the 60-plus page policy paper has been adjusted.

Federated Farmers complained this week that some groups had received preferential treatment from Dr Cullen, and after an acid-tongued response, he invited them to his office.

Saunders Unsworth, the PR firm representing the 13 main port companies, has nothing but praise for Cullen's role. Partner Barrie Saunders had three meetings, two with Cullen and one with officials on the issue.

"I find it truly amazing that he is as accessible, from my point of view, given the extraordinary load that he has got."

The meetings were remarkably frank, with he and his clients being told exactly where the thinking was firm and where there was room to move.

But the number and heat of internal Government meetings has risen as the self-imposed deadline for a policy position has neared.

The temperature has risen. Cabinet ministers have met late into the night to thrash out some of the detail. The phones ran hot between Wellington and Nigeria last week where Clark was accompanied by her chief political adviser, Heather Simpson.

Clark and Simpson are said to be focused on the potential backlash of middle New Zealand and were more than annoyed that officials had developed a proposition that Maori who gain mana whenua title might have co-management (or veto) rights over the foreshore, one of the proposals knocked by the Cabinet.

Cullen and Thompson are said to have more regard to the property right argument and Maori expectation that they should get something for the planned legislation to block their legal rights to pursue customary title.

There can be no doubt that the issue is putting strains on relationships within the Government, and that, no doubt, will apply to Clark and Cullen to some degree.

The stakes are too high for that to be lasting.

Tamihere has no doubt about the stakes of Wednesday's announcement.

"It has the opportunity to divide us at a very special moment in time in our nationhood story - and we can't allow that to happen."

The story so far

* The Court of Appeal rules on June 20 that Maori could take a case to the Maori Land Court for customary title over parts of the foreshore and seabed - which could then have been converted to freehold title.

* Government's response No 1, June 21:

"Ownership of the foreshore and seabed has long been considered to lie with the Crown, and the Crown has made provision for regulation of its use in the national interest.

"The Government respects attempts to explore legal rights through the courts, but also acknowledges that issues of ownership and use affect all New Zealanders.

"The Government will be giving consideration to how these issues are best resolved." - Prime Minister Helen Clark and Attorney-General Margaret Wilson in a joint statement.

* Government's response No 2, June 23:

"The Crown is going to clarify in fact that the seabed and the foreshore is owned by all New Zealanders in the form of the Crown."- Margaret Wilson at a press conference.

* Government response No 3:

"We are very outcome-focused. The Government will act to uphold rights of public access. The most obvious way of doing that would be legislation to assert Crown ownership, but it may not be the only way of doing it. The deeper we get into it, hour by hour and day by day, there are a whole range of possibilities." - Helen Clark to the Herald, June 24.

* Government proposals issued August 18:

- The foreshore and seabed will be in "the public domain" with general right of access and not subject to private rights of ownership.

- New process by which Maori whanau, hapu and iwi can define and protect Maori customary rights through the Maori Land Court. Powers to identify cases of customary title for case-by-case negotiation with Crown, but not to award it legally.

* Government ministers start a series of 11 hui around the country in October to overwhelming rejection of the proposals.

* Officials begin collating the hui feedback and other submissions, and Michael Cullen begins private meetings with interested groups to finalise policy position.

* Final policy announcement due for release next Wednesday, December 17, to include a provision for Maori to establish a "mana whenua" title in the Maori Land Court. The rights that would flow from a group gaining this status are the heart of the debate and range from exclusive co-management rights with local bodies, to others being required to simply "have regard to" their title.