Hard News 19/08/03 - On The Beaches

So the foreshores are to be in the public domain, but not owned by the Crown. It's an interesting solution to a really nasty problem - and apart from anything else, one would think a few libertarians would be excited by the idea of a public commons that isn't vested in the state.

But, of course, there is politics to be played out. National has tried to work the politics of resentment for all it's worth - and succeeded only, according to the latest One News poll, in delivering votes to New Zealand First, which does resentment better than anyone else and always will.

Some out-and-out racists - like the no-neck from Nelson on 3 News last night - are getting air, the most irritating activist in the country, Ken Mair, has been reactivated, and almost everyone seems, or claims, to be angry, apart from the government, which claims to be fairly levitating with the spirit of nation-building.

Frankly, we want to be careful here. This issue is important, and, thrown to the wolves of populism, it has the potential for to be deeply socially corrosive.

Basically, IANAL (I Am Not A Lawyer, for those of you who don't speak Usenet), but the idea of land being in the public domain, although new here, is not unknown in other jurisdictions. In California, where various undesirable titles were acquired in the settlement rush, it has been used to reclaim stretches of foreshore for public use, providing inalienable access rights, without actually extinguishing title.

("California" - http://www.stoel.com/resources/articles/realestate/real_01.shtm )

The government has been variously accused of both dangerous dithering and rushing the issue - sometimes in the same programme. On The Last Word last night, the news bulletin began with the words "The government finally came up with its solution to a problem that's been dividing the country for months." Well, given that the Court of Appeal handed down its decision on June 19, and the government outlined its approach to the issue on June 26, it's more than one month and just shy of two. A few minutes later, Pam was demanding to know of John Tamihere why the planned consultation period of six weeks was so short.

("Appeal court decision" - http://www.brookers.co.nz/legal/judgments/Default.asp?doc=2001/ca173.htm
"Govt approach to the issue" - http://www.scoop.co.nz/mason/stories/PA0306/S00512.htm)

So now we're in the endurance phase: that is, enduring the shouting of the odds from various usual suspects. Like Titewhai Harawira, who claimed on Morning Report today that that all the beaches belong to "the Maori nation". No they don't, and that's not what the Appeal Court said.

The court allowed that specific groups who believed they could prove a continuous customary use of the foreshore and seabed in a certain area could go to the Maori Land Court to seek a vesting order, the effect of which would be "to change the status of land from Maori customary land (held according to tikanga Maori) to Maori freehold land." That is, plain old European-style private property.

Maori groups still have the right to go to the Maori Land Court to assert and explore customary rights which may, in the end nearly amount to title, in which case the government will enter discussions which could lead to some compensation. It seems a reasonable middle path to me; less overtly a land grab or confiscation than declaring the land Crown property would have been, but equally protective of public access.

One problem for the government is that in the week after the Appeal Court decision, the attorney general Margaret Wilson actually did say that Crown ownership would be asserted. For both practical and political reasons, that is not to be the case.

Anyway, the Herald has a very good editorial on the topic this morning, but it has not, for some reason, been posted to the paper's website. It declares, correctly, that:

The government's dilemma is clear: while there was never much doubting the state of public opinion, this is a society based on law and property rights. When no less an authority than the Court of Appeal finds a property right exists, the Government should not simply expunge it. The proposals the government announced yesterday steer a delicate middle course.

And it concludes:

If these proposals seem to Maori to expunge a potential property right, it should be remembered that the claimants were a long way from establishing the case in the Maori Land Court. Ironically, they might find it easier to do so if customary ownership does not amount to exclusive title. If the mana of iwi and hapu can be recognised without alienating ownership of the coast, the foreshore and seabed saga will have a happy conclusion.

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