Ruth Berry: Failure to cut through the rhetoric leaves a scar

COMMENT

The foreshore and seabed bill was put to bed yesterday with a similar level of emotion to that which marked its birth.

The protests had dwindled to 100 or so people outside Parliament and few critics bothered to grace the public gallery.

But the tense and occasionally tearful parliamentary debate revealed how much the issue has plagued politicians.

Discomfort emanated from MPs across the House as they continued to grapple with an issue which has become symbolic of how we view, today, ourselves and our rights as New Zealand citizens.

Some political leaders - inside and outside Parliament, Maori and Pakeha - have painted the debate as a black and white one. Maori rights are either being confiscated or given undue power, end of story.

That might be politics, but the ultimate failure to cut through the rhetoric and engage in a more honest conversation leaves a scar.

The Government must take responsibility for setting up the tired old Maori vs Pakeha polemic in the first place.

When Helen Clark and Margaret Wilson responded to the Court of Appeal's bombshell by announcing within days that the the Government would move swiftly to assert its ownership of the foreshore and seabed, they did two things.

They made it clear to Maori that consultation between Treaty partners might be a requirement they expect of others, but not of themselves.

They also imprinted in the minds of Maori that in some cases groups would have won freehold title, which they were hellbent on preventing.

The furious reaction was inevitable and set in train a perception - fuelled by other actions such as the decision to ram the bill through this week - that the process was dishonest and designed to disenfranchise. That impression has proved impossible to shake. It should have been handled differently.

Despite this, there has been a genuine desire on the part of least some Government MPs to try to come up with a fair response to what would have been an extremely difficult issue for any Government.

Michael Cullen and the Maori caucus MPs have been under enormous pressure and the latter, despite accusations to the contrary, fought many internal battles.

Did the Government have to legislate?

Given the political storm it helped whip up, realpolitik dictates it probably then had little option.

Despite the calls for due process, the introduction of a decent statutory rights recognition regime would have reduced uncertainty and court costs.

Arguing that previous failures to assert Crown ownership were an accident, the Government says the Court of Appeal's ruling that freehold title might have been issued was therefore "unintended".

Hence it says the loss of that avenue can't be taken into the equation when weighing up what the new regime offers.

Many Maori will reject that proposition.

The Government says it is codifying in law what would have happened had a common law inquiry, taking Crown ownership into account, been conducted. It has drawn on findings in overseas jurisdictions.

The Waitangi Tribunal said this year that it believed a common law inquiry here would probably not result in recognition of qualified ownership and would instead result in recognition of a "bundle of rights" approach.

It said a "declaration coupled with a trust of the customary land could be a convenient means of implementing the right-holders' obligation to protect the land".

The law will enable some groups to establish reserves over their customary land, but the bar will be high.

There is little in the bill for other groups and the Appeal Court finding offered them nothing more.

The Government has not prescribed what powers the reserve boards will get. They don't appear to be extensive, but the legislation is imprecise. Although Te Arawa can collect rents for jetties built on lakes, foreshore and seabed reserve boards will not be able to do the same.

This is a double standard.

The Government yesterday bemoaned the misunderstanding that it claims has meant that many Maori mistakenly believe the Appeal Court said they owned the foreshore and seabed.

There is misunderstanding among some. But at a deeper level the finding and the Government's own reaction to it served as a launching pad for Maori to re-explore and assert their views on their overall political status.

The lengthy debate between officials and MPs over what language to use in the bill - how much power each word such as "title" confers - symbolises the ongoing difficulties and sensitivity around defining that status.

Those language "barriers" also arose in talks between iwi and the Crown.

The Government continues to downplay the role the Treaty will have in the constitutional inquiry being established.

But as evidenced by this bill, that conversation - the longer conversation called for by the tribunal but in another forum - will be unavoidable.