From Don Brash to Helen Clark to the latest media spiel, the ‘debate’ is one of the great bogeymen of NZ politics. And it needs to get in the sea, writes Ben Thomas.

It’s probably a little too cute to observe that the foreshore and seabed “debate” in New Zealand is built almost entirely on a foundation of sand. But few political bogeymen are quite so illusory as the ones between high tide and low tide.

Former chair of the New Zealand Māori Council Maanu Paul grabbed headlines this week by announcing a High Court application for the entire foreshore and seabed of New Zealand – that is, the coast from high tide to 12km from shore – on behalf of “all Māori”. Last month was the cut-off point for applications to the court or government for customary title to be lodged, and Paul said he wanted to represent all Māori who had not been able to get an application in on time. By coincidence, former PM Helen Clark, who nationalised the whole foreshore and barred Māori from seeking customary title in 2004, popped up on RNZ’s 9th Floor series to defend her actions.

To call Paul’s application a stunt, as Bill English did, would only be an insult were it not for the fact that the stunt worked. Although the right to seek customary title was restored by the National government with the Māori Party in 2011, the reality is Maanu Paul can’t claim the whole foreshore on behalf of all Māori – any more than he could claim Auckland Airport’s whole lost property room if he went in to retrieve his misplaced wallet.

But the announcement achieved its purpose of media coverage to draw attention to his belief that the six-year deadline for applications was too short for some claimants. It also washed up the flotsam and jetsam of a decade-and-a-half-old controversy, as reliably as the tides.

What if, Don Brash howled from the 1840s, Māori succeed in getting customary title to the foreshore? And what if, those eager to avoid the mistakes of the past tweeted, the government were to overreact in 2004 fashion? Both may be surprised that Māori already have, at least sort of, and the government didn’t, respectively.

A few days before Christmas last year the High Court issued a short decision, Re: Tipene (PDF), signalling the first award of customary title in the marine and coastal area.

Customary marine title will be awarded in part of the marine and coastal area (as the foreshore and seabed was rebranded in 2011’s Act) around the small rocky outcrops of Pohowaitai and Tamaitemioka, two of the isolated group of Titi islands where Māori from Rakiura (Stewart Island) traditionally harvested muttonbirds for food and trade.

The Tipene decision is important for the owners of Pohowaitai and Tamaitemioka. It will give formal recognition of their uninterrupted exclusive use and occupation of the area in front of the landing to the two neighbouring islands, slightly bigger than a seventh of a square kilometre, since 1840 (and before). The court’s judgment tells a concise and fascinating history of a remote part of the country, as well as a few useful tips on catching muttonbirds, but there’s not much else that might excite alarm – which could be why it was largely ignored by the media and politicians.

Which is a shame. Reading the court’s judgment, it’s impossible to come to any conclusion except that the group would have its customary title recognised. Because what so often gets lost in media, and wilfully obscured by the fear-merchants, is that the law in question was not about “the beaches” or “Māori”. It was about particular whānau, hapū and iwi. It was about recognising claims over their specific land, which they had exercised control over and use of since 1840 to the present day. It was about property rights.

The Court of Appeal’s Ngati Apa decision in 2003, which started the furore, was an orthodox application of the common law, albeit overturning a previous case which was wrongly decided, that Māori had the right to go to court to have claims for customary title in the foreshore (the area between high and low tide marks) and seabed investigated. In a way, nothing could have been less revolutionary. It promised no special rights by virtue of being Māori; or a guarantee that any customary title still existed. Only that the courts could hear claims for the recognition of customary rights particular Māori groups had held in any specific part of the foreshore and seabed since before 1840 (when sovereignty passed to the Crown) to determine whether they continued or had been extinguished.

Whether customary title still existed was an intensely factual matter that depended on the specific history of the people and the area involved.

What made it a national issue was the panicked Labour government declaring by press release two days later it would legislate to overturn the court’s decision, snuffing out any such cases before they could be brought. They were urged on by National MP Nick Smith, who started a petition to “save our beaches” and paraded with Peter Dunne down the streets of Nelson, with protesters holding signs like “Whites have rights too”.

It was a despicable display by all involved. Clark’s Foreshore and Seabed Act pre-emptively extinguished any claims and gave ownership of the whole foreshore and seabed to the Crown – except, gallingly, the foreshore and seabed that was already owned by private individuals. It was a racist law that ignored the rights of individual families and groups and subsumed them into a blanket attack on all Māori by denying them a day in court.

Clark argued it allowed Māori to have some customary rights recognised, but the Act was essentially a charade. It outlined a complex administrative procedure for proving a group’s historical association with an area, complete with some arbitrary new hurdles. If the applicant was successful, they got … nothing. Instead, the court would issue a direction that they could begin negotiations with the Crown, with no guaranteed outcome.

And what was the panic for? The Foreshore and Seabed Act has been repealed and now groups can seek recognition of customary marine title through the courts or by direct negotiation with government (which has engaged former High Court judges to review applications). And with Tipene, the first award has been signalled and the sky hasn’t fallen.

There will be more awards in the future, and probably more than just a handful. Some will be small, like the Titi islands. Some will be able to prove larger claims. Ngati Porou owns much of the coastal land on the East Coast and has done since time immemorial: it would be impossible for most people to have ever reached its adjoining foreshore without the owners’ permission or by trespassing. And the fact there will be more awards is a good thing, because the courts and the government will be recognising rights that already exist.

Of course, many families and groups lost those customary connections because of their own actions or the actions of the Crown. The Marine and Coastal Area Act doesn’t do anything for them, just as the Ngati Apa decision in 2003 didn’t. There are many swirling, interconnected injustices in New Zealand history, and they have to be addressed one by one.

Could it all go wrong from here? It’s unlikely. It’s worth noting the Crown was a party in the proceedings and opposed Mr Tipene’s application in Titi. Crown lawyers agreed the Māori owners of the island as a whole were entitled to customary title. But they queried whether Mr Tipene adequately represented that group. Experts in the particular tikanga of Rakiura Māori gave evidence about how decisions were traditionally made about the isand’s management. The Court was satisfied Mr Tipene had enough support from the key families to bring an application for customary marine title on behalf of the whole group. (Mr Tipene won’t be named on the title though – all parties agreed it should be a representative office rather than just Mr Tipene himself).

The Crown chose not to appeal. Even if it had, that’s entirely consistent with the rule of law. But there was no rushed press release declaring the court would be overruled, no frenetic scaremongering and chest beating about the “New Zealand dream” being under attack.

While an illusory controversy is conducted through the media, everyone else carries on as they should. Whānau, hapū and iwi can seek to have their rights recognised. The beaches are as free as they ever were. And the people trying to inflame division and dissent can get in the sea.

Ben Thomas is a public affairs consultant with Exceltium and a former political editor of the National Business Review. He was press secretary for Attorney-General Chris Finlayson when the latter was responsible for the review and repeal of the Foreshore and Seabed Act 2004.

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