Welcome to the cultural battleground... Resolving the foreshore and seabed could yet fall to the Supreme Court, in what would be a case of Roe v Wade proportions
It was a court case that started the foreshore and seabed debate and it could yet be a court case that ends it. The Ngati Apa group of tribes found themselves in the Court of Appeal in 2003 as they tried to figure out whether they could get into the marine farm business.
For all the political and legal machinations in the years since, the government must be sorely tempted to simply kick the matter back to the courts and let the chips fall where they may. Winston Peters appearance on Q+A yesterday reminds us that, whatever declarations of sweetness and light greeted last week's review panel report, this is still the hottest of political hot potatoes. National wants to keep the Maori Party on side, but do they really want to spend the amount of capital required to do it? Doing a deal with the Maori Party will antagonise their base no end.
Let's consider some of the differing viewpoints that need to be reconciled here.
I was talking to a Maori friend last week who spoke of a slice of estuary that his family has lived beside for 600 years. They had customary title over it, awarded by the Maori Land Court in the 1870s and he grew up assuming it was his responsibility. It was to be protected for at least another 600 years; he felt obliged to care for it in the interests of his wider kin, but this wasn't a matter of iwi ownership. This 'belonged' to his whanau.
So to him, the government's decision to nationalise the foreshore and seabed of that estuary was, as Tariana Turia has said, an act of theft. He doesn't want compensation though, and nor does he want some national settlement or the wider iwi speaking on his whanau's behalf. He just wants the law put right and his family to have a guaranteed say in what happens to that stretch of water. He agrees that he doesn't have the right to stop anyone else from using and enjoying the estuary; access for all is fine by him.
If it ended there, a resolution wouldn't be so hard. But ask whether it might be in the "interests of his wider kin" to one day, say, develop or mine the estuary, and he won't rule that out, even though he adds it wouldn't happen for a few generations yet.
And so the question becomes, if his family has a customary title but not a fee simple title, do they have the right to do as they wish with that estuary? And what rights does the Crown have, on behalf of all New Zealanders, to tell them what to do?
The Court of Appeal in 2003 ruled that some Maori – although not many – may have the right to claim a property right over their bit of foreshore and seabed and do as they wish with it. The review panel last week also seemed to suggest that a customary right could become a full-blown property right.
But talking to Sir Douglas Graham last week, he described a customary right as the right to do something that your people were doing back in 1840. If you were hunting and fishing then, you can hunt and fish now. No one can stop you exercising that custom. But if you were building holiday resorts and mining for minerals then, you can do that now. As you can see, that view is at odds with my Maori friend, who thinks those customary rights can be extended into a modern context.
Which is a hefty legal debate.
One other point often overlooked in this debate is that about 30 percent of the land adjoining bodies of water is already in private hands; presumably, mostly pakeha private hands. There are already a huge number of beaches that New Zealanders can't get to. Fact is, for all the anguish about Maori cutting off access to our beaches, my guess is that pakeha farmers are probably denying you and me access to more beaches than Maori.
If farming families have right of denial and development and Maori whanau don't, is that fair?
The Maori Party, and indeed National, would rather do a quick, quiet backroom deal on this. National doesn't want to have to manage the political fallout of this "weeping sore". The Maori Party started this campaign fighting for its day in court. The irony now is that they'd rather sort this out within government, rather than risk the uncertainties of a court ruling.
There's virtue in that approach. If MPs could forge a political consensus on this, any resolution would be long-lasting. I can't imagine what compromise would be acceptable to all, but I'd admire any politicians willing to try to find one.
If the courts decide, the ruling could be a political football for years, even decades.
Attorney-General Chris Finlayson, who seems to want to sort this, may not be able to convince his cabinet colleagues to risk a political settlement that they have to take responsibility for, and the Maori Party can hardly argue publicly against sending this issue back to court. They're boxed in.
If this issue does go to the Supreme Court, it would be that court's first real test. It would have to wrestle with competing world views and would have to fit legal definitions around our cultural relationships, our relationship with the land and sea, and the rights that tradition hands down to us all. It could be to New Zealand what the abortion ruling Roe v Wade has become to America – a decision that defines the national soul and a major battleground in the culture wars.