Government puts 'title' in its place

By AUDREY YOUNG political editor

The use of the phrase "customary title", a fundamental term in the foreshore and seabed plans, is believed to be under review in the Government's proposed legislation.

The legislation may confine itself to "customary rights".

The former term has been open to confusion, distortion, exploitation and controversy - most recently when Attorney-General Margaret Wilson told Parliament that Maori already held customary title over the entire coastline.

Prime Minister Helen Clark yesterday also warmed to a suggestion that a review clause be built into the legislation after, say, 10 years, which would force a statutory review to be held - as is the case with the fisheries settlement legislation before the House.

"Parliament is always the master or mistress of its own destiny so whatever resolution one arrives at, at any issue of public policy, then given time can be revisited," she said.

Deputy Prime Minister Michael Cullen has been turning proposals into legislation ever since a Court of Appeal decision extended the jurisdiction of the Maori Land Court to the foreshore and seabed and set out the possibility of it issuing private title over foreshore and seabed.

The decision was based on an original claim by a group of iwi for "customary title" in the Marlborough foreshore.

Common law recognises aboriginal title as held by an indigenous people who have exercised rights on a continous connection with a particular area - rights that survive sovereignty.

According to legal expert Dr Paul McHugh, there is no exclusive ownership under the common law.

But the term has been confusing because it includes the word "title", which often denotes formal ownership and has the potential to heighten expectation of Maori and increase Pakeha concerns about "ownership' of the foreshore.

The Government proposals include a law to stop the Maori Land Court from privatising the foreshore and seabed.

And it proposed a new statutory meaning of the common law "customary title" concept.

It would allow iwi, hapu and whanau to register with the Maori Land Court their customary title or an ancestral connection with a particular piece of coastline, which would then give them greater rights of consultation and management over the area with the relevant local authority.

It also gives the court new powers to identify and register customary use rights against a "title".

The Government's proposals also shut off the avenue of Maori pursuing customary title through the High Court under common law (it has been done in Australia and Canada but not in New Zealand).

National's Wayne Mapp said he would not be at all surprised if the Government was reviewing its use of the term customary title "because they did turn the concept completely on its head to use it in a way no other person has used it before in the field of human history".