Editorial: Stealthy treaty extension had to be blocked

The coast is precious to just about everyone in this country. Whenever a private coastal property is put up for sale it is easy to drum up support for its purchase at public expense, and the idea that any part of the actual foreshore and seabed might be alienated from public use is simply anathema. Yet that possibility had arisen from a decision of the Court of Appeal on a claim brought by Maori tribes in Marlborough. The Government has decided that it will not risk the creation of judges' legislation giving the Maori Land Court jurisdiction over the seabed.

The litigants and many other Maori who have been following the case are naturally aggrieved that the Government will nullify, as they see it, the work of seven years. What is the point, they ask, of investing time and effort to seek recognition of customary rights in the courts, and tapping the collective wisdom of appellate judges, if Parliament can override the result?

The legislation the Government seems to have in mind will prevent any recognition of customary ownership of the foreshore and seabed though it will recognise "customary use". The distinction will be interesting. If customary use is to mean anything more than the common right of all New Zealanders to use beaches and coastal water, it will need to entail an element of exclusion. That might be no less anathema than customary iwi ownership to most people.

The right to use beaches and coastline is sacrosanct in this country. The iwi claimants say it was never their intention to restrict recreational access - their main interest is in marine farming. That is as may be; once customary ownership of the seabed is legally recognised for any purpose, it is only a matter of time before it will be invoked for other purposes.

Defenders of the Appeal Court's decision were at pains to emphasise that its ruling was on a technical point of jurisdiction, and that the substantial issue was to be decided by the Maori Land Court. Whatever that court's decision, it too would likely have been taken higher. The claim to the seabed would have been years yet away from a conclusion - which would be cold comfort to the public in general and marine farmers in particular.

Even the preliminary "technical" issue has taken years to reach a decision. It dates from 1997, the year after eight iwi from the top of the South Island lodged a claim against consents for marine farms in the Marlborough Sounds. The Crown, under the National Government, challenged the Maori Land Court's jurisdiction to hear claims to the seabed and won the case in the High Court.

In fact it is hard to see that the principle was not given away in that "technicality" decided by the Court of Appeal. In ruling that the Maori Land Court's jurisdiction extends to the foreshore and seabed the Appeal Court surely made the fateful decision. The Cabinet obviously believed so, hence its haste on Monday to announce corrective legislation.

The Treaty of Waitangi promised iwi continued ownership of their lands, forests and fisheries but the definition of land and fisheries did not, until now, extend to land beneath the sea. The boundaries are being pushed now, says Waitangi Fisheries Commissioner Maui Solomon, because "we want to participate in marine farming development". But what is to stop them doing so, unless "participate" does not mean investing in marine farms but simply collecting rent from those who do? e

The Appeal Court's decision was greeted with enthusiasm from iwi around the country. It is a declaration none will forget and its rejection by the Government will add one more grievance to the Waitangi litany. But the court's declaration could not be allowed to stand. It would have been yet another treaty extension by stealth.