The foreshore and seabed is much more a political than a legal issue. That’s why the government will take its time.
Of course, there is much law involved. The issue became political because the Appeal Court in effect laid down new law in 2003 by overturning a longstanding High Court decision.
There is also the common law, Maori customary law, Te Ture Whenua Act, which deals with Maori land, and complex coastal and marine law. And there is the Foreshore and Seabed Act, which the ministerial review committee, itself reinterpreting the law, wants repealed and replaced.
There is also a body of legal opinion which has evolved from the revival of the Treaty of Waitangi and Waitangi Tribunal decisions and has informed some court decisions.
And there was the fact that in 2003 the government had in effect barred itself from appealing the Appeal Court decision to the British Privy Council because it was promoting legislation to ban such appeals and set up the Supreme Court.
The government must tease all that law through as it seeks to settle the row that gave birth to the Maori party — and as National seeks to build a lasting relationship with the Maori party.
The review committee’s composition pointed toward its findings: two Maori with strong tino rangatiratanga credentials and, in Richard Boast, a 1970s path-breaker in academic law circles in taking the Treaty seriously.
National ministers’ task now is to sell a replacement for the 2004 act to the sort of people its current deputy leader inflamed in 2003 with billboards declaring the Labour-led government was endangering their customary right to “barbies on the beach”.
But that task is not as hard as it would have been even two years ago. That is for three reasons.
One is John Key. He was a new MP when Bill English, then leader, was ramping up angst in middle New Zealand in 2003 and then when Don Brash decided to wind up Maori “advantage” as his central line of attack in early 2004.
Immediately Key became leader he junked the Brash “iwi-Kiwi” divisiveness. Immediately after winning last year’s election he opened talks with the Maori party which led to an adventurous support agreement.
Add in his easy acceptability to a wide span of people, many in milieus where a National leader is usually tolerated at most. And add his huge popularity within his party which (for now at least) neuters the party reactionaries.
If any Prime Minister can sell a foreshore and seabed settlement, it is Key.
The second reason the task is easier now is that ordinary folk are not as inflammable as in 2003. A quarter-century of Treaty deals and changing custom has acculturated New Zealanders to biculturalism to a degree near-unimaginable 25 years ago. And it is now five years since the Foreshore and Seabed Act was passed.
There remains a wariness — and a weariness with (in Helen Clark’s phrase) “haters and wreckers”. And there is irritation. But there is also growing accommodation.
In part that stems from the Maori party’s conduct in Parliament. While Hone Harawira likes to blow off steam and writes a fiery column in the Northland Age, the party has comported itself with dignity. Pita Sharples (who underneath is every bit as fiery as his northern colleague) is a cuddly bear in the popular imagination.
The third reason the task is not as hard as three years ago is Michael Cullen.
It fell to Cullen to front the fury in 2004 and devise and sell the Foreshore and Seabed Act as the government’s way out of the public opinion furnace Brash was stoking.
In 2008, after eight years of sluggishness on Treaty claims, it was Cullen who picked up the wero and began to drive through settlements. That included a landmark deal on the foreshore and seabed with Ngati Porou which was arguably better than it would have got under the law as it stood before the Foreshore and Seabed Act. The Appeal Court’s view was that few claims to customary title would meet its criterion of continuous use.
He also pointed a way forward in a submission to the review committee in April. The subliminal message in that was that Labour in opposition will likely go along with a settlement.
That settlement will be political. It will be complex, involving the reconciliation of customary title and the tino rangatiratanga that goes with that and common law general rights to foreshore and seabed which underlie the popular view that beaches belong to all.
It will be expensive if the government takes the review committee’s point that customary title should not be regarded as having been extinguished if that happened through a breach of the Treaty. That could be a very large can of worms and could take quite a while to fix.
So it is no surprise that the government will take until the end of August to craft a response. Don’t expect that to be the end of the debate. This is a bicultural issue. For all that the Maori party was “really, really happy” (in Sharples’ words) on Wednesday, it has some hard bargaining ahead.