Watkin on Foreshore & Seabed

Tim Watkin at Pundit looks at what to expect:

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.

I think Tim missed a not before “a single, national settlement.

A hapu based approach is sensible, as under the common law, you have to show customary use.

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.

And there was very little chance of a court granting simple fee title. One reason Labour did not need to panic and legislate.

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.

That could be interesting. Some may say this is all just symbolism – but symbolism can be incredibly important.

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.

Commercial use is part of what drives this. Who gets to farm for mussels etc?

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.

It is possible the law changes will not be mammoth. But there is a difference between a law change negotiated in good faith between two parties, and a law change unilaterally announced three days after a court case has been lost by the Govt.

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