Foreshore Tsunami Subsides, but After-Shocks Will Follow

Summary

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THE LABOUR GOVERNMENT'S foreshore and seabed legislation has become law without anyone much the wiser about what all the fuss was about. For more than a year and a half, the huge block of what is loosely known as middle New Zealand -- of all ethnicities -- watched with rising alarm as Maori sovereignty activists tried to split the country over an issue no one knew anything about until June 2003. For more than 100 years before that date, common law had treated ancient Maori customary usage, and what might have once been something akin to ownership, below the high-tide line as having been superseded by Crown title. This did not impede traditional Maori seafood-gathering: indeed, laws specifically favoured Maori in the right to take as much as was required, rather than the limited numbers imposed on everyone else. It was just that the prior century of coastal development, of the harbours and facilities on which the country's vital export wealth was founded to just about everyone's benefit, required certainty under the law on who owned what.

Then the Appeal Court -- which was about to be promoted into Attorney-General Margaret Wilson's Supreme Court -- anticipated its looming new role by lurching into legislative moralising, rather than merely solidly applying the law as it had been interpreted throughout the 20th century. In seeking a more fashionable interpretation of indigenous rights, the Appeal Court judges even upended a 1963 decision by their own court concerning Ninety Mile Beach that had clearly viewed customary links as having been severed in favour of Crown ownership. The judges, lead by Chief Justice Sian Elias, who had long advocated Maori title during her years as hired counsel, decided that those earlier generations of New Zealanders had got it wrong. There might be a few tribes -- not many, they conceded -- with coastal occupation unbroken since before the 1840 Treaty of Waitangi ceded sovereignty to Britain, which might be able to claim foreshore and seabed title.

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Foreshore Tsunami Subsides, but After-Shocks Will Follow

Both Prime Minister Helen Clark and Ms Wilson immediately...

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