Colin James: Beneath the upside-down politics of indigenous rights

If the Treaty of Waitangi hadn't been around, would we be bothering about the foreshore and seabed? Yes.

This is not a matter driven by the treaty. It is a matter of indigenous rights. Indeed, the very fact that the treaty has become a hot topic over the past 20 years is at least partly because of a rise to prominence of indigenous rights in former colonial countries, Australia, Canada and the United States among them.

The treaty has been a convenient vehicle for demanding recognition of those rights in this country, especially since it recorded and protected some of those rights in article II, the one that respects tino rangatiratanga of iwi and hapu, including over taonga.

But the treaty has been only part of the story. The foreshore-seabed issue now on the agenda is a claim for recognition of title - customary title - pre-dating and not extinguished by the treaty.

Indeed, some Maori see the treaty as a potential brake on the recognition of indigenous rights.

One: the treaty process set up in the 1980s has focused attention on historical and resources claims, instead of building a relationship in which knotty disputes can be resolved in "partnership" (the word the Appeal Court bequeathed to us) and not in confrontation.

Two: the treaty might limit indigenous rights through its explicit acceptance of the British as cohabitants and governors in article I and its extension of British citizenship to Maori in article III.

Three: to carry legal weight the treaty must first be incorporated in relevant legislation. This has now been widely done, but that is far short of the treaty being enforceable in the courts in its own right.

So some Maori are wary of incorporating the treaty in legislation because that reduces it to a subordinate document - far short of "the founding document of the nation" all parties declared it to be in the late 1980s - and not a compact between two supposed equals.

The same thinking apparently prompted Maori not to seek resource management consents for aquaculture farms in the Marlborough Sounds.

That would concede their indigenous rights were dependent on an act of Parliament (the Resource Management Act) and not derived from customary title - that is, from long custom pre-dating the British arrival and imposition of British rule.

This is not what past generations of non-Maori lawyers thought and present generations of ordinary folk think: that the British assumption (and subsequent enforcement through war) of sovereignty transplanted British custom and common law into this land.

That custom was that the Crown held all the land and individuals' freehold was - and is - in fact tenure from the Crown, even if in perpetuity.

On that assumption the Crown owned the foreshore and the seabed, except where it had granted title to others.

A New Zealand custom has grown up assuming a right of access to and use of the foreshore and sea. (Though this custom has been circumscribed by ports' ownership of some land, by marine farms and by private - mostly non-Maori - ownership of land blocking access to some beaches, lakes and rivers.)

What the Appeal Court did was to turn on its head the assumption about Crown ownership. To do that, it drew on practice and court pronouncements in other ex-colonial countries.

It found that except where the Crown explicitly expropriated land (including the foreshore and the seabed), the residual title lay - and still lies - with indigenous people who could prove customary occupation and use.

Strictly speaking, that was a conservative decision, not the radical decision some have taken it to be. The present Appeal Court is not radical. The radical response now would be legislation imposing Crown title.

What is the ordinary non-Maori to make of this? The historical grievances have been broadly accepted as just. But there is growing unease that claims are proliferating far beyond historical redress and leading to "special" treatment.

Politically, the foreshore-seabed issue is dynamite.

Also important, what are rank-and-file Maori to make of it?

Indigenous Maori society was hierarchical. The reassertion of indigenous practices, reinforced by the law, runs counter to the general spread of democratic practice.

As John Tamihere and Winston Peters, from different perspectives, point out, there is a gulf between those in charge of iwi and hapu, with their professional advisers, and rank-and-file Maori.

Labour's primal instincts are with the rank-and-file - better housing, health, education and jobs, and a place in the sun for all in this once-egalitarian society. In dealings with Maori, however, Labour's practice and political connections have been with the chiefly classes.

That upside-down place is where indigenous rights take Labour. They take National, whose Maori connections are now negligible, to the precise reverse: "a hand up to a job is worth a lot more to those [poor] Maori than putting them on a committee," Bill English said on Saturday.

It is a nice conundrum.

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