Editorial: Two strands continue to bind us

Seldom has this country struck a problem that goes to the heart of its constitution in the way the foreshore and seabed claim has done. The constitutional tension is evident in the Waitangi Tribunal's report, which finds the Government proposals to be a breach of the rule of law, and in the response of the Deputy Prime Minister, who sees in the tribunal's conclusions an implied rejection of the principle of parliamentary sovereignty.

They are both wrong. The Government proposes to override a common law property right that has been recognised in principle by the Court of Appeal, but the law under which we live gives Parliament the right to do so. The tribunal does not say otherwise. It appeals to higher principles than parliamentary sovereignty. It says: "We proceed in the expectation that governments of New Zealand want to be good governments, whose actions although carried by power are mitigated by fairness."

Few would disagree with that statement, though there may be wide disagreement about what is fair. The Waitangi Tribunal naturally considers that fairness in New Zealand terms "is always influenced by the agreements and understandings embodied in the Treaty". Few, we hope, would disagree with that statement too, though there is debate about what those "agreements and understandings" might be.

This, in a nutshell, is New Zealand's constitutional dilemma. We owe dual allegiance to a Westminster tradition in which a parliamentary majority rules supreme and which recognises no ethnic distinctions, and to a treaty which sought to safeguard certain Maori interests. The tension in that dual allegiance has become starkly apparent now that the National Party under Don Brash proposes to take treaty references out of statute law.

Most people, though not most Maori, appear to agree with Dr Brash that the treaty is purely a historic artefact, leaving some genuine colonial injustices still to be resolved but otherwise with nothing valid to say about how rights and benefits are distributed in New Zealand today.

In response to Dr Brash, the leader of United Future, Peter Dunne, has proposed a constitutional commission to consider public views on the future of the treaty and perhaps replace it with "a new founding document". The Prime Minister does not go that far but she is open to the idea of a parliamentary select committee inquiry into the role of the treaty and other constitutional issues. National says no to any such exercise.

Constitutional arrangements in the Westminster tradition are not normally established by theoretical discussion; they grow, like the common law, from the resolution of real conflicts. The foreshore and seabed case offers just such a conflict.

The Court of Appeal has allowed the possibility of tribal ownership of land below high water on the basis of English common law recognition of native custom in colonial territories. Customary property rights persisted unless they were expressly expunged by statute and the Court of Appeal found that New Zealand statute law had not done so.

Of course it is therefore open to Parliament to do so now and that is what the Government proposes, though it hopes to mollify Maori claimants with a form of property title that will carry certain rights of use but not confer exclusive ownership. The Waitangi Tribunal has concluded that Maori would be losing a great deal and gaining very little.

But it finds the claimants realistic and recommends the Government make another attempt to reach a genuine agreement. To proceed regardless of the tribunal's view will merely create another grievance for the future. Parliament of course has that power but, for a minority at least, the treaty is still the measure of fair dealing. They will demand that in any constitutional discussion it is not abandoned.