Our courts have served us well over the years. They have given a degree of certainty in uncertain times, and they usually bolster sensible approaches to life. Occasionally, however, they have hurled decisions on racial matters into the public arena with all the delicacy of a hand-grenade into a busy market place. When that happens, the courts themselves, the politicians and government practices come under closer scrutiny. They don't always emerge unscathed.
Such was the case in 1982 when the Privy Council overturned our Court of Appeal on the issue of Samoan citizenship. That decision challenged government policies in force for 60 years. Politicians scrambled legislatively to return the status quo. Local judges were left looking slightly foolish. Five years later it was the politicians' turn. With little prior discussion, Geoffrey Palmer had inserted a clause in the State-Owned Enterprises Act 1986. It tied the Crown to behaving in accordance with "the principles" of the Treaty of Waitangi. But those principles weren't defined. An activist Court of Appeal under its then President, Sir Robin Cooke, had a field day filling in the legislative vacuum. Judges lifted the Treaty out of its 1840 context, overlooked the fact that the population balance between Maori and Pakeha had changed dramatically, and that the definition of a Maori had been heavily diluted in the interim. The decision was full of phrases that gave food to the burgeoning Treaty industry. Issued weeks before the 1987 election, it should have taught parliamentarians who sit in the highest court in the land about the dangers in leaving legislative loose ends.
In a narrow sense, the Court of Appeal's decision on the marine foreshore and seabed released on 19 June 2003 was something of an own goal. The judgement resurrected Maori customary property rights that the Appeal Court had disposed of in the 1870s, then cremated in 1963. The 2003 decision inferentially criticised the competence of preceding judges over a 125 year period. And like so many court decisions of recent times, it gave life to separatist ambitions amongst those who are mostly Pakeha, but in recent times have chosen to label themselves Maori.
Just as the 1982 Privy Council decision gave false hopes to many Samoan overstayers in New Zealand, the foreshore decision will eventually prove illusory for Maori. Prior to June this year 99 New Zealanders out of every 100 believed that the land below high water mark and seabed belonged to the Crown that held them in trust for everyone. I sat on Parliament's Local Bills Committee for many years and that was an article of faith; had there been any doubt, we would have removed it. The Government says in its consultation document that it intends to legislate to ensure "that the foreshore and seabed should not be subject to private rights of ownership". No new private titles to the foreshore or seabed will be created. The status quo that we all believed to exist, would therefore continue.
So far, so good. But as ministers traipse around hui, listening to the lamentations of people who as recently as three months ago had no idea the law on title to the foreshore was in doubt, will they keep their nerve, or be tempted into suicidal compromise on matters like rahui? And what about another issue? If Maori can argue long-standing customary ownership and compensation for extinguishment before the Maori Land Court, then that body will need a huge intellectual transfusion. Several of its judges seem recently to have joined the claimants. The practice of appointing to the Court mostly those with a claim to Maori ancestry will have to change, too. All Kiwis would have an interest in the Court's deliberations.
Handling the foreshore issue like the Samoan citizenship case looks the best solution. No one will be deprived of any title he/she possessed yesterday if the concept of "public domain" is spelled out unambiguously. All races would live with what they have understood to be the status of the foreshore and seabed for 125 years. Public ownership leaves room for recognising limited customary rights. But given the sensitive nature of this issue for the overwhelming majority of New Zealanders, ministers would be wise not to widen the concept. Nothing that can reasonably be done beyond the status quo will satisfy the 1% of "new Maori". Concessions will only inflame 99% of the population who have long understood the existing rules.