Troubled waters and hidden obstacles

By RUTH BERRY


This weekend, two East Coast tribes will hold hui which will unveil a key piece of what has become of the giant foreshore puzzle.

Ngati Porou and Te Whanau a Apanui have spent the past year negotiating with the Government, and are keen to reach a deal to protect customary interests before the foreshore legislation is passed.

The negotiations are direct but the outcome will have to be consistent with the framework outlined in the bill.

At the heart of it is one of the crucial difficulties over a controversial and emotionally loaded piece of legislation.

The Government has not said what it will do to recognise the interests of a group with claims strong enough to entitle it to an aboriginal title, or what the Government calls a territorial title.

Definitions of what such a title mean vary, but in this context it would be as weighty, or almost so, as a freehold title.

It would recognise the right of an iwi, hapu or whanau to exclude people or activities from their property - as could, for example, a homeowner.

But like a homeowner's title, it would not confer absolute power.

Other rights and interests - protected by laws and bylaws - also determine what can and cannot happen on the property.

In the public mind, the proposed legislation vests the "full legal and beneficial ownership" of the foreshore and seabed in the Crown - end of story.

But the bill does a number of other things which mean Crown ownership is not as clear-cut as it sounds.

It legislates for the first time to protect public rights of access and navigation to the public foreshore and seabed - with room for justified exceptions.

And it also says the High Court can award a territorial customary rights order to a group if it believes that but for the bill vesting ownership in the Crown, that group would have held territorial rights.

If the court reaches this finding, ministers "must enter into discussions with the group ... to discuss the nature and extent of any redress the Crown must give".

Alternately, such groups can bypass the court to negotiate, as Ngati Porou and several others are doing, directly with the Government.

Submitter after submitter appearing before the select committee on the bill has complained that the bill is silent on what redress means.

Does it mean the Government just says sorry, that it will pay compensation, or that it may recognise, through statute, an aboriginal title which it has extinguished at common law?

Customary rights expert Professor Paul McHugh, an independent adviser to the Government, told the committee that the insertion of the reference to territorial customary rights in the bill means the Government accepted such a right could exist.

Once redress talks were entered into the Crown would, generally, be obliged to create new statutes acknowledging its title was burdened by a territorial customary right, a title conferring "modified exclusivity", or qualified ownership. The qualification flows from the band of public rights recognised in the bill - public rights to access, navigation and fishing.

Recognition of title would flow from the Crown's responsibility to protect common law aboriginal title, which it was extinguishing to create a statute-based regulatory regime.

McHugh asserts that if a regime recognising such rights were set up, it could not be said that the rights, while differently recognised, had been in fact extinguished.

Although McHugh also called for strengthened and more detailed redress provisions, critics suggest his reading is far too optimistic.

Iwi lobby group Te Ope Mana a Tai told the committee the bill was radically rewriting the law to create a "grossly restrictive" customary rights regime.

It would not recognise ownership rights, and the "extremely narrow" range of customary use rights it would recognise would be vulnerable to legislative change.

It said territorial customary rights orders were "essentially pointless as they gave rise to no tangible relief" and turned Maori into supplicants to the Crown.

Further, the High Court test bore no resemblance to the "held in accordance with the tikanga Maori test" which the Maori Land Court would have used to determine claims to freehold title had the Appeal Court's Ngati Apa decision been allowed to stand.

Most Maori groups would not have territorial customary rights orders granted by a court because sale, theft or confiscation of land adjoining the foreshore meant that over time they had lost "ownership" control of the coast.

But as the debate has focused on "ownership" and the rhetoric from many political leaders, inside and outside Parliament, has left many with an impression of an all-or-nothing ownership scenario, the treatment of territorial customary rights redress will reveal how far along the customary rights recognition path the Government is prepared to go.

Hence the significance of next week's hui. Te Runanga o Ngati Porou and Te Whanau a Apanu, have been meeting Government officials weekly since last year.

The iwi have some of the strongest customary title claims, as they own about 90 per cent of land adjoining the foreshore in their territory.

The weekend's hui is the first of about 14, where the two tribes will give members the details of the terms of negotiation they have established with the Government.

Ngati Porou runanga lawyer Matanuku Mahuika won't reveal details before the hui, but it appears inevitable that the deal will involve some type of ownership recognition, probably in title form, and coastal co-management rights.

The breadth and scope of these rights will provide a critical benchmark for other iwi. For example, will the deal enable the runanga - instead of councils - to collect fees in the event of it approving a tourist venture on the coast?

The Government is hoping the tentative deal will reduce Maori opposition before the select committee delivers its report - which will offer some compromises - on November 5.

Maori Party co-leader Tariana Turia believes the negotiations, and those with Tainui, amount to typical Government "divide and rule tactics".

She is worried that other iwi with claims as strong as Ngati Kahu, whose opposition has been vociferous, will not get the same treatment.

Was it correct, she asked Tainui Labour MP Nanaia Mahuta disapprovingly before the last committee hearing on Monday, that she would vote for the legislation if Tainui's West Coast harbours were excluded from it?

Despite comments afterwards suggesting Labour could not consider her support guaranteed, Mahuta did not assert she would vote against the legislation, although she has been given leeway.

Mahuta also called for a new measure providing for recognition of a custodial title in the bill.

Select committee chairman Russell Fairbrother believes the redress provisions should provide "greater certainty" and specificity.

So do the Government's other Maori MPs, who will also want an explicit provision for custodial title.

The issue is not only confusing to the public. It appears that even within the Government there is confusion.

Fairbrother believes "full and beneficial" Crown ownership is nothing more than formalising the Crown's underlying title on which other titles can sit.

Attorney-General Margaret Wilson and Deputy Prime Minister Michael Cullen would not comment while the committee was writing its report.

But Wilson's spokeswoman said the minister believed the bill's vesting in the Crown conferred more than underlying title.

Fairbrother wants the purpose clause in the bill strengthened to better explain its intent and the jurisprudence around it.

He also believes there will be movement on the reclamation clause, which has angered ports and local government.

Clearer indications of what a customary rights order - which protects use rights - might entail are also possible, he says.

Turia says proceeding with the bill could seriously damage race relations and the concern of many submitters when she adds "it's not for the state to codify tikanga".

It appears unlikely the select committee will be able to report a majority finding on what should be changed.

The committee of 10 has four Labour MPs and one from NZ First, the only other party aside from the Progressives - with no committee vote - supporting the bill.

The other parties are supporting United Future's proposal for an interim report and more time for consultation, but also don't have the majority to put this into effect.

Dr Cullen, who has just returned from the United States, is preparing for another tumultuous period of intense manoeuvring.

He not only has to be seen to respond to at least some submitters' concerns, but to ensure he retains the votes to pass the bill.

There is Government concern about NZ First leader Winston Peters' potential brinkmanship - and then there are the Government's own Maori MPs.

The Government could afford to lose Peters only if it gained Mahuta's vote.

With that vote, and that of United Future, it would have 61 votes - a majority of one.