Yesterday's release of the review of the Foreshore and Seabed Act [PDF], with its recommendation that the Act be scrapped and that the government work towards a settlement with iwi and hapu, has caused predictable outrage on the right. Down in the sewer, National's carefully cultivated following of rednecks is going feral, while in the comments on Colin Espiner's blog, the ignorance has reached toxic levels, with claims of racism, threats of race war, and the usual allegations of cannibalism forming a poisonous brew of Pakeha entitlement. In the process of course the actual facts underlying the foreshore and seabed debate are completely ignored. What follows is an (almost certainly futile) attempt to reintroduce them.
Firstly, and most importantly: this is not about race, it is about property rights. And those property rights are not "race-based" except in an accidental sense that the rightsholders happen to be Māori; they are the same damn property rights that everyone else has. The best analogy is to think of it this way: you own a house, and so your descendents or appointed heirs and successors continue to own it unless either someone sells it or the government legislates those rights away. And that is exactly what is going on with the foreshore and seabed.
The key point, which a lot of rednecks seem to want to deny, is that Māori had a system of land ownership. It was based on custom, rather than written statute (much like the Anglo-Saxon system before someone bothered to write it down), but iwi and hapu owned land and recognised each other's claims to it. These claims were based on widely recognised principles, chief among which was ahi kā - occupation or "keeping the home fires burning" - but was also possible through discovery and ancestral rights (take tupuna), gifting (take tuku) or conquest (take raupatu). Importantly, if occupation and use was not sustained - if the fire was not kept burning - rights could lapse and be appropriated by others.
The second point, which a lot of rednecks have similar trouble understanding, is that that system survived the Treaty. It is a well-established fact of common law that changes in sovereignty do not affect property rights. Where the change is between two "civilised" powers - e.g. England's occupation of Quebec in the 18th century - this is uncontentious; everyone understands that just because the rulers have changed, people do not lose their property. If the government signed a treaty ceding Auckland to Australia, people wouldn't lose their houses. But the same applies when a government acquires sovereignty from an "uncivilised" (to use the language of the C18th) people - whatever system of property rights, customary or otherwise, which prevailed at the time continues, and rights held under that system continue until they are explicitly extinguished or transferred onto a new legal basis (this is known as the doctrine of aboriginal title).
This has been recognised in New Zealand law since the earliest days of settlement, for example in the 1847 case R v Symonds ("Whatever may be the opinion of jurists as to the strength or weakness of the Native title... it cannot be too solemnly asserted that it is entitled to be respected, that it cannot be extinguished (at least in times of peace) otherwise than by the free consent of the native occupiers"). However, it was brutally denied by the racist Chief Justice James Prendergast in his 1877 ruling on Wi Parata v Bishop of Wellington, in which he declared that Māori were "primitive barbarians" with no system of customary property, and that the Treaty of Waitangi was "a simple nullity". Despite being rejected by the Privy Council as early as 1901 in Nireaha Tamaki v Baker, and repeatedly since then, the Prendergastian view has continued to hold sway in both the courts and public mind. It was finally put to bed by Ngati Apa v Attorney-General - the foreshore and seabed case.
The question then becomes a factual one: whether Māori (or rather, individual iwi and hapu) held such property rights over the foreshore and seabed, and if so, whether they had been extinguished. In Ngati Apa, the Court of Appeal rightly ignored the first question as a factual matter for lower courts (specifically, the Māori Land Court). But - partly because increased respect for the Treaty meant that any law must be very explicit - it found that there had been no general extinguishment. Meaning that if an iwi or hapu owned a patch of foreshore or seabed in the past according to Māori customary law, it still owned it, unless there had been a specific extinguishment in that area (for example, due to a sale which included the foreshore and seabed, or an Act of Parliament which asserted crown ownership). The Foreshore and Seabed Act 2004 changed that, of course - but what was done can be undone. And if the government has any sense of justice, it will.
Update: clarified final paragraph to make clear the possibility of local extinguishment. This will certainly have happened in some places, as the government has passed various Acts e.g. harbour board legislation asserting ownership and placing it in the hands of a specific body. But whether it has or has not over a specific piece of coast is a question of fact which can be investigated by a court.
