Reheating a fiery debate

The saying goes that those who forget history are condemned to repeat it, and the government is continuing apace with its rerun of decisions and policies from the past.

Hot on the heels of the second coming of charter schools and the rebooting of boot camps comes the reigniting of the foreshore and seabed bonfire.

Last week Justice Minister Paul Goldsmith announced that the government would legislate to overturn a Court of Appeal decision from last year which expanded the criteria by which claims to coastal waters could be assessed.

As things stood, Māori claimants had to prove they and their ancestors had exclusively used and occupied an area of coastal land from 1840 to the present day without substantial interruption, to have any prospect of success in a land claim.

The Court of Appeal thought that the "substantial interruption" test was too high a bar for claimants to clear and relaxed it.

There is some justification for such a change: there is a long history of coastal Māori being deprived of their land, for various reasons and often without redress.

However, both New Zealand First — which made overturning that ruling a coalition agreement condition — and National have made great political capital out of arguing that access to the coast had to be maintained for all, hence last week’s announcement.

Although there has not been any great erection of barricades on the coastline since National introduced the law as it stands in 2011 — and little indication that anyone intends to bar coastal access — the mere idea that it could potentially happen is enough to make Parliament’s more conservative parties jump.

Just as naturally, any suggestion that any law change which could restrict iwi and hapu from rightful Treaty of Waitangi redress has enraged the other side of the House.

Paul Goldsmith. Photo: Getty Images
Paul Goldsmith. Photo: Getty Images
"It’s a shameful stain on this government," Te Pāti Māori co-leader Rawiri Waititi said.

"It just creates more distrust between Māori and this government."

Before this is condemned as more inflammatory rhetoric from Mr Waititi, remember this.

The last great political row over the foreshore and seabed came about in very similar circumstances, when then Prime Minister Helen Clark — spooked by a highly-effective National Party billboard campaign — decided to legislate to repeal an earlier court decision on coastal land rights.

That led to mass protests by Māori and supporters, one of the largest hikoi ever seen to Parliament, and the formation of what is now known as Te Pāti Māori.

Mr Waititi and his party have assuredly not forgotten their history and will fiercely condemn any government which chooses to repeat it.

Quite why the government opted to progress this now is mystifying.

The relevant case has been appealed to the Supreme Court, which should have been left to form its own conclusion before the government reached for the legislative lever.

Quite apart from the signal that sends about the government’s expectation of the court, more broadly it raises fairness issues for any claimants with a case before the courts right now.

The not inconsiderable challenge Mr Goldsmith now faces is to find a test which, while higher, does not smack of impossibility, and achieve everyone’s acceptance.

He will also need to find universally acceptable definitions of "exclusive use", "occupation" and "substantial interruption".

Another famous quote suggests that insanity is doing the same thing over and over again and expecting different results.

We are not questioning Mr Goldsmith’s mental state, but given ample evidence from the past that restricting Māori legal rights — which is essentially what the government intends to do, despite its protestations — leads to nothing but trouble.

The system which was already in place did not appear to be broken, and legal avenues to address whatever cracks might have been emerging in it have yet to be exhausted.

While the government’s ultimate aim of free coastal access for all is laudable, the methods by which it hopes to maintain it are questionable.