Recommendations on how to deal with the contentious Foreshore and Seabed Act go to Cabinet today and are due to be announced on Wednesday. Can the government both clear the hapu hurdle and pass the talkback test? And what is tipuna title?

'Repeal and replace', is the phrase most people are using to describe what will happen to the Foreshore and Seabed Act this week. And while the parties involved are staying mum on exactly what  the Act will be replaced with, several Maori leaders I've spoken to seem to have a pretty good idea.

In political terms, this repeal is the riskiest decision the National-led government has faced so far. The Maori Party was formed on this issue; it's the party's grand passion and core promise. There's simply no way the Maori Party would have offered its support to National unless there was a nudge and a wink about a repeal to go with the publicly promised review announced after the coalition negotiations.

Maoridom expects. But Pakeha also demands. While most pakeha New Zealanders struggle with the ins and outs of customary rights, they understand with perfect clarity access to the country's coastline and any suggestion of "special treatment" for Maori. Whatever the government proposes will have to clear the hapu hurdle and pass the talkback test.

One thing we of which we can be fairly confident – the original Ngati Apa case won't go back to court. The Maori Party's initial complaint was that their people were denied their day in court and those people needed that right re-instated. Now, that's the last thing they want. Why leave this issue to the variables of the court, when they can come up with a political solution?

Any number of legislative techniques could be used to make a replacement bill acceptable, and I can't begin to know what they all may be. But here are my insights based on what I've heard in recent weeks.

First, Maori will be wanting a single, national settlement, but one that can be negotiated hapu-by-hapu. It's extended family units rather than whole iwi that have the strongest connections to this or that part of the coastline; that's where the legal relationship should be defined.

Next, there's little chance of Maori winning simple fee title – at this stage at least – over the foreshore and seabed they say has belonged to them since humans first arrived on these islands. But then most Maori aren't demanding that. Maori 'ownership' will be restricted to guardianship; they won't be able to sell or buy the land. It will be held in some form of customary title that is inalienable.

How might they do that? One idea that I'm told has been part of negotiations – and I've had this from several sources – is 'tipuna title' (tipuna meaning ancestor). That is, the foreshore and seabed in question would be 'owned' not by anyone living, but by a hapu's primary ancestor. That way it can never be sold. However it's also been suggested to me that National may have ultimately poured cold water on the concept.

For one Maori friend I spoke to a few months ago spoke with real feeling about the relationship he and his family have had with an estuary for more than 600 years; they just want that relationship to continue. They would never sell. Indeed, rather than sell, they may exploit and develop. As I wrote a few months back, it'll be interesting to see how the government deals with the issue of commercial development of these natural resources.

Another suggestion has been that the threshold to establish customary rights could be lowered; having to have had undisturbed communal title to a piece of foreshore and seabed for something like 170 years is a hard test for any hapu to pass. Many have moved at some time to try to put their holdings into fee simple title. One iwi leader I've spoken to said that should be "softened".

Many Maori have been negotiating territorial rights since the previous Labour government past its act, so it's also important to many that they don't have to start again from scratch. They've been assured by officials that they won't have to.

Which suggests that one of the most surprising things to stem from this 'repeal' could be just how little the law actually changes. While fundamental new interpretations will be needed, everyone involved will be keen to ensure as little political and legislative upheaval as possible.

Two other quick thoughts. First, we can only hope that this re-ignites the aquaculture industry that has stalled since that Ngati Apa case back in the '90s. Second, will the government have the guts and vision to address private pakeha ownership of the foreshore and seabed at the same time as they re-define customary rights.

As one who believes that the coastline belongs to everyone and no-one, it would be nice to think that was made clear all in one go.

Comments (10)

by stuart munro on November 02, 2009
stuart munro

It's a hell of a contentious issue.

It would be nice to see more aquaculture - though mussel farms are not the most profitable venture, and NZ has perhaps the world's lowest per kilo returns on aquaculture because our industry concentrates on such a low value product. Although there is some hope in the longline and box oyster cultures, the real money will come when paua farming becomes more established, a development more likely to be landbased than it is to run in the near offshore.

Another matter is that pakeha, like maori, also have a spiritual relationship with the land and waters, which needs to be recognised.

The rise of iwi corporations such as Ngai Tahu has not been an umixed blessing to the communities that have to deal with them, and a proliferation of such groups, even if it is ultimately constructive, will not occur without creating or intensifying resentments.

Most cities in New Zealand are still pumping un or semi-treated sewage into the sea too, a bad habit that will be expensive to remedy.

I don't see much evidence of National preparation to confront these issues - so we may anticipate that they will get worse.

by Ian MacKay on November 02, 2009
Ian MacKay

One of the concerns here in the Sounds was the belief that once Customary Rights were established, fees would be due for anchoring, mooring, boatsheds, and jetties. The seabed would "belong" to hapu. This would of course create considerable resentment.

by Luc Hansen on November 02, 2009
Luc Hansen

Hi Tim.

Over at Kiwiblog DPF thinks you forgot a "not" before "single"in this sentence:

First, Maori will be wanting a single, national settlement, but one that can be negotiated hapu-by-hapu.

Reads OK to me the way it is, but is he correct?

by stuart munro on November 03, 2009
stuart munro

One of the problems of the previous administration was their desire to gift nascent iwi groups with new revenue streams (a noble enough design) along the lines of the US natives' casinos, a project so successful they they call them 'the new buffalo'.

Unhappily, they hit upon fisheries as their preferred zone of gift, and this resulted in an extraordinary pattern of rorts, mismanagements and derogations of longstanding rights.

The QMS was very probably the worst conceived and worst executed piece of legal and administrative folly New Zealand has entertained in the last three decades, and adventures such as the Sealord deal are ignoble chapters in a narrative of reckless exploitation and alienation of indigenous assets. For all the fanfare surronding this cumbersome and administratively burdensome system, the tangible results have not been credible: the Orange Roughy is essentially commercially extinct, the West Coast Hake fishery is severely reduced, even short lifecycle gadoids like the hoki have undergone massive reductions.

Fisheries is too biologically critical to be a political football. The US example was wiser, if more cynical - gambling is an industry that may fail without critical national losses. The same might be true of tourism. Fisheries are rather more important,  especially to a small and seagirt nation.

by Tim Watkin on November 03, 2009
Tim Watkin

Luc, you're quite right. I didn't intend a 'not'. People I've spoken to want a national settlement - they don't want iwi or hapu queueing up outside parliament or the high court one by one. But a national agreement can accommodate each hapu having rights over its local bit of waterfront.

Ian, there's definitely a question around what customary rights will mean. Even if Maori can't sell the foreshore and seabed, will customary rights allow them to develop it with fees... aquaculture... mining? You're right about some resentment, but remember pakeha who own the foreshore and seabed at the moment enjoy that right already.

by Graeme Edgeler on November 03, 2009
Graeme Edgeler

but remember pakeha who own the foreshore and seabed at the moment enjoy that right already.

Pakeha and Maori. At least I imagine there are some Maori who actually own bits of the foreshore.

by stuart munro on November 03, 2009
stuart munro

The fees issue is likely to be especially hard fought - given that existing councils are already charging for moorings and the like. Bad enough to be paying a local government rort, but at least we have the power to vote the bounders out.

Granting a like power to Maori (or any other unelected group) crosses a constitutional line that will rankle.

by Tim Watkin on November 04, 2009
Tim Watkin

Quite right Graeme. My point is that Maori and Pakeha are today alike under fee simple ownership, so politically it's going to be as hard as ever to explain why Maori should enjoy extra customary rights. Whoever it was who said that the job of politics is explanation, well, their words are bang on in this case. It'll be a matter of explaining that activities carried out pre-1840 – such as fishing, where this all began – may well still exist in law.

by dave on November 05, 2009
dave

The only way that I can see how this can be explained is through an indigeneous argument. Given that the ministerial review said that customary rights exist unless specifically and lawfully extinguished, these rights still exist. It remains to be see how the Government will recognise these rights, and in what form.

by stuart munro on November 06, 2009
stuart munro

I'd actually want something more than a rendering of those parts of traditional usage that are easily construed as property, though they should surely be part of the mix.

The % of new application space reserved for Maori goes part of the way, but perhaps two conditions should attach to all fishing or aquaculture permits: i) some proportion of the benefit should be devoted to a public good, and ii) some proportion of the benefit should be devoted to preserving or developing the resource. My understanding of traditional Maori practice is that these were part of the indigenous law, and perhaps we should respect that, especially since the Treaty gave Maori the fisheries in their entirety.

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