Ruth Berry: Muddying the waters

COMMENT

Solicitor-General Terence Arnold sparked a flurry of excitement among the Opposition when he told the Waitangi Tribunal the Government's foreshore policy gave Maori "real power".

The comment, and his assertion that "those who have a customary right do have a right to stop activities that will have a significant impact on that customary right", were this week used as the basis for a National advertising campaign claiming the policy is separatist.

National leader Don Brash believes the proposed customary title would allow the development of commercial activity arising from customary use.

"This 'development right' will mean an expansion of traditional customary rights," he said in his Orewa speech.

"Customary title also gives Maori a veto power over anyone else's development ... Anyone wanting to build a small jetty on a coastal property where customary title has been established will need iwi consent.

"And what we know from this experience is that it is likely to require a substantial payment to smooth the path for consent."

Deputy Prime Minister Michael Cullen accuses Brash of grossly misrepresenting the policy.

And an iwi lawyer, Grant Powell, who says Arnold's claims provoked more amusement than anything else among claimants, said National was "fundamentally distorting" the Government's proposal.

The potential development of commercial activities and the exercise of veto powers were explicitly tied to customary rights, Cullen said.

Customary title, contrary to Brash's claims which were also repeated on National's foreshore website, conferred none of those rights.

The distinction between title and rights is important because the titles, as defined in the Government's policy document, could be successfully claimed over the bulk of the coastline.

They will recognise "mana and ancestral connections" and confer "enhanced participation" in decision-making. Iwi lawyers argued for a much stronger type of aboriginal title which would have carried ownership rights to marine space rather than rights to particular practices within that space.

But they have been unsuccessful.

In evaluating how powerful the so-called veto and commercial rights will be, some key questions about customary rights must be answered.

Although the policy document refers to veto and commercial rights, the references are opaque - allowing iwi to claim there are no veto rights or commercial opportunities and Brash to assert, albeit with some errors, the opposite.

The questions are:

* What is the nature and extent of the customary rights that will be recognised?

* What terms would have to be met for a commercial opportunity, not available to non-customary-right holders, to arise?

* What does the Government mean by "veto"?

* To what extent do existing laws already recognise any of the rights or opportunities in question - that is, what's new?

Officials are still working on the statutory criteria the Maori Land Court will use to determine a customary right.

The less specific the legislation, the greater the court's ability to define the rights - but the Government has indicated the criteria will be fairly specific to prevent the court taking an "expansive" approach.

The customary rights will exclude the biggest marine resource, fish, because the earlier fisheries settlement extinguished those common law commercial and non-commercial rights. (The non-commercial customary fishing regime gives tangata whenua significant control over the harvesting of fish in some bays.)

The Government now plans to allocate iwi a share of marine farming licences under a separate regime, claiming it is an unresolved part of the fisheries deal.

What other customary rights, then, are the Government talking about?

Examples used so far are hardly extensive. In fact, it has been a joke within Government circles that some ministers have been forced to cite the collection of hangi stones (usually gathered from rivers instead) as a good example.

Other examples have included the extraction of sand, shingle and other minerals; use of space for undertaking customary activities (such as waka-launching) and specific rocks or reefs; erection of cultural amenities, and protection of historic features, places and existing burial sites.

Treaty Negotiations Minister Margaret Wilson says the Government, copying the Australian High Court, has taken "quite a narrow interpretation of what is meant by customary use rights".

While a use right will be determined by the land court - restricted by the statutory criteria - Wilson believes there are not many more that could be added to the list.

Iwi lawyers are frequently evasive on this point.

Tim Castle, a lawyer representing seven iwi, says "claimants are not going to engage in this debate because it misses the point".

In that view, the Government's approach fragments and fails to recognise the holistic Maori view of their relationship with the sea and the coast, which essentially includes significant ownership interests.

Castle, nevertheless, maintains "there will be a wide range of use rights".

But Herald inquiries have so far revealed few other significant examples that would fit into the definitions to be applied.

Under the "continuity test" which must be met, groups will have to prove they continue to exercise the rights, based in traditional practice, today.

Allowances will be made for changes in practice so that maintaining the right to a space from which to launch a dinghy would be a modern-day equivalent of a waka-launching practice.

Wilson is unclear whether a resource would have had to have been traded traditionally for it to be commercially exploitable today.

A submission to the tribunal from customary rights expert Paul McHugh, which forms the basis of the Government's approach, suggests there would have to be traditional evidence of trade.

But Government officials said last year that if a resource had been traditionally used by groups in some form it could be differently used - that is, traded - in the future. But here the huge qualifier applies.

As Cullen puts it: "Any commercial development will be restricted to the volume of resource used for the customary usage and will be subject to normal regulatory control."

If a group traditionally took sand from the beach for some purpose then it could now theoretically sell it, provided it met resource management requirements.

But it could take only an amount similar to what it has always taken.

To develop any significant selling sand business, a group would have to prove it had always "used" the substantial quantities of sand it wanted to commercially exploit.

While the policy refers to potential for commercial opportunities to flow from customary rights, the (two) references appear to have been inserted to keep some of Labour's Maori MPs and their constituents happy - providing some justification for Brash's claims that the Government has positioned itself to sell different messages to different audiences.

Negotiations continue over this issue but significant changes appear unlikely.

Wilson says she can see few commercial opportunities of any significance flowing from use rights.

As Cullen said last August, referring also to the fact that the Crown Minerals Act guarantees Crown ownership and management of petroleum, silver, gold and uranium: "You have got to try and imagine something which is on foreshore and seabed, which is not covered by existing law like minerals or fisheries, which might involve customary rights from which there might be a commercial development.

"Well, maybe there are such things but I find it hard to imagine them."

Finally, and again contrary to Brash's claims, the policy specifically precludes "development rights" which would enable groups to exploit a resource (such as a valuable mineral) which they had not traditionally used.

This would be possible only if the Government recognised that the groups had an "ownership interest", which much to claimants' anger it refused to do.

If there are some commercial opportunities they could result from what the Government calls the "veto" power.

Local Government New Zealand president Basil Morrison says there are significant concerns and confusion within the community and councils about what this means.

Cullen says groups will be able to veto future resource consent applications for a jetty, for example, which would prevent a customary right, such as waka-launching, being exercised.

Associate Maori Affairs Minister John Tamihere argues a joint-venture opportunity could arise from, for example, an existing application for a marina in Okahu Bay, in exchange for Ngati Whatua waiving customary ingress and egress rights they hold there.

The nature of the joint venture arrangement then becomes subject to negotiation.

But given Cullen's assertion the rights will be "small and discreet" and therefore will not be asserted over whole bays, and given that we may be talking about the recognition of only a small number of "rights", the veto issue appears unlikely to arise often.

Castle and Powell refute claims the policy gives customary right-holders a veto.

The policy document says the decision-maker - either the Minister of Conservation or the relevant local authority - "would decline" an application if it were to have a "significant impact on a customary right" unless the right-holders agreed.

Castle points out the power to assess what is meant by "significant impact" will be up to others, not the right-holders, to determine.

What then is new? Not much, say iwi lawyers and Wilson. She says the regime is primarily aimed at taking a stick to existing legislation, adding clarity and enforcing protection of the rights they already promise to protect. "A lot of this really isn't new at all but it isn't working the way people wanted it to work."