Editorial: Foreshore deal good for everyone

The Government's revised proposal for the foreshore and seabed looks much better than its first. This one contains the potential for recognition of Maori customary ownership without restricting public access, without conferring a claim to commercial developments that were no part of customary practice and, perhaps most important, without giving tribes a customary title they might not have established in the courts. That last-stated risk has not been widely discussed in the heat and fury of debate since the Court of Appeal brought down its decision six months ago. Maori voices have been loath to acknowledge that the decision fell far short of upholding a customary claim. The Court of Appeal ruled merely that the principle of customary ownership had never been expunged by law and that therefore it was open to the Maori Land Court to hear particular claims.

But the five judges did not believe claims would easily succeed. The English common law recognition of customary property rights, they pointed out, required that the claimants' use of the property must be "certain, reasonable and continuous". It must have existed "from time immemorial". It must have existed "as of right, and therefore neither by violence, nor by stealth, nor by leave asked from time to time".

Considering the inter-tribal warfare, migrations and upheaval in the 50 years before 1840, let alone the previous 500 years, it is easy to appreciate the difficulties iwi would face in establishing reasonably continuous exclusive use of any stretch of coastal seabed since time immemorial. If the Government now simply legislated to expunge customary title - as the Court of Appeal decision implies it has a right to do - it would invest the present claims with a quite unwarranted presumption of success.

It would, in effect, create a powerful new grievance that could haunt future generations as much as the colonial land confiscations haunt ours. But this latest proposal leaves iwi and hapu with the opportunity to press claims for customary title before the Maori Land Court where they will need to establish continuous use in Maori terms.

It may be argued that the proposal does not leave claimants much incentive to proceed. If they are awarded a customary title it will not carry exclusive ownership rights or development rights for resources on or under the foreshore and seabed. It will merely increase protection for customary uses and give the iwi or hapu a voice in the management of the marine area.

It is hard to see how a customary title could give them a stronger voice than they enjoy under the Resource Management Act, the Historic Places Act and the like. Public authorities are obliged these days to locate and consult tangata whenua, which is often a vexed exercise where two or more tribes claim that status. Presumably where more than one group lays claim to a tidal area, a customary title is most unlikely to be awarded.

But if, as we often hear, the Maori concept of ownership is not the same as European property rights, the Government's proposed solution should satisfy both sides. Iwi and hapu have the opportunity to receive a title that acknowledges a special sense of guardianship, kaitiakitanga, and a right to have a say in how that tidal area is used. The rest of the population can be assured a customary title will never carry a right to exclude the public from ordinary recreational use of any foreshore or any area of sea. All such territory will be legally vested as "public domain".

As usual where Maori assert historic claims, recognition of tribal mana is more important to most than the opportunities to exact rent from public resources. Only rent-seekers will be disappointed with this proposal; those simply with ancestral territory at heart will have an opportunity to secure a form of legal recognition for all time.