Editorial: Government on tightrope over seabed

If anything casts a cloud over the Government's contemplation of a summer holiday, it will be a possibility of Maori beach protests against the frustration of claims to customary ownership of foreshore and seabed. Beach protests "could not be ruled out", according to the chairman of a group of iwi representatives which was briefed on the cabinet's latest proposals on Monday. If protests took the form of attempts to exclude the public from certain tidal areas, they would demonstrate the very consequences of customary claims that most people fear. It is hard to see how that would serve the interests of claimants, but it certainly presents ministers with a holiday nightmare.

The foreshore and seabed is fast becoming the defining issue for the Administration, the one subject so politically sensitive that it could bring the Clark Government down, but which also presents the Prime Minister with her particular historic challenge. So far, her Government is not handling it well.

When the Court of Appeal delivered its bombshell in June, the Government emphasised that the decision did not necessarily endorse a Maori claim to customary ownership of land below high water but merely ruled that customary ownership claims could be heard by the Maori Land Court. Within two months, however, the Cabinet had decided it could not allow such claims to be heard. It produced a document called "proposals for consultation" which did not in fact leave much room for consultation. It proposed to legislate against any possibility that land below high water could be regarded as other than "public domain".

The response of iwi was immediate and predictable. After a round of hostile hui ministers retreated to tend their wounds. Now the Government is said to be devising a new proposal - a roving commission which will travel the country assessing claims to foreshore and seabed. The idea seems to be that the commission would recommend to the Maori Land Court that an iwi or hapu might be awarded "mana whenua" title over a tidal area.

That designation would fall well short, it seems, of rights of ownership, which is why there is a suggestion of beach demonstrations now. We have only the iwi group's account of the Government's latest proposition. The detail is not scheduled for general release until next Wednesday. If the cabinet hoped the iwi group's opposition would be assuaged by an early briefing, it must be disappointed.

Iwi have consistently maintained that their interest in customary ownership would not amount to an exclusive right, at least as far as public leisure is concerned. They are mainly interested in commercial uses of the land below high water, particularly shellfish farming. But, in a conventional European sense, the term ownership has no meaning unless it conveys a right to exclude others from using the property and the right to sell it at will. If the Maori meaning of ownership falls short of exclusive rights of use and sale, then it should be possible to reach a historic agreement.

Customary ownership in the sense of guardianship recognises an iwi or hapu's hereditary association with an area and its particular care for its management. That form of recognition seems to work well for some of the national landmarks and there seems no reason that it could not work equally well for areas of sea. After all, the Government is equally determined to prevent any further privatisation of the foreshore, and to permit marine farming under comparatively short-term leases.

But in the effort to mollify customary claimants, the Government must be careful not to imply recognition of claims that have not even been tested in courts. To imply recognition while agreeing to something less, would merely create a grievance for a future generation. It is the Government's challenge to ensure that the coast remains sacrosanct, once and for all.