Friday, February 20, 2004


I've talked about legislation, I've talked about property rights, but its clear that the most important factor in the whole foreshore and seabed debate is fear - in particular, fear that people won't be able to go to the beach. National have done their best to feed this fear, and engaged in what can only be described as a divisive campaign of scaremongering designed to win them votes. But having taken the time to actually look at the government's proposals, I don't actually see anything there for pakeha to be afraid of.

Why not? Because nothing like an ordinary everyday title, of the sort you might have over a house and with the right to exclude others, is being talked about here. Instead, its all about "customary title" and "customary rights". What do those terms mean? Well, here's what I could cull from the last few days Parliamentary questions:

Customary title is simply a recognition of an ancestral connection; "this tribe used to live around here". It grants no management rights. It cannot be sold. The only significant effect is to recognise the relationship - local authorities have been required to consult Maori ever since National passed the RMA; now they'll know which ones to consult with (at least when it comes to the foreshore).

From the Pakeha point of view, this affects nothing. It does not privilege the opinions of Maori in any way, and it does not stop you from going to the beach. So what is there to be afraid of?

Customary rights are usage rights, granting the right to do a specific thing in a specific place. Yes, they grant "real power" - specifically a power to veto competing uses which interfere with the right; that veto will not be universal, and there will be no power over activities which do not interfere with the usage the right protects. They can not be sold. And from the sound of it, they will not be widespread (the government seems to be following the Court of Appeal in suggesting that the barriers to proving a customary right are quite high).

Exactly what this means depends very much on what usages are recognised - but so far the talk is of things like launching waka and gathering hangi stones. I don't see how either of these examples is going to impact the average recreational user. So what is there to be afraid of?

(For people who don't understand the veto power, I think the best example is of a shared driveway. All users have a right of access up it. No user can build a wall across it and forbid access to the others; if they want to, you get to say "no".)

So, nothing is going to stop us from going to the beach. So why all the fear?