What next for the foreshore & seabed?

Recommendations on how to deal with the contentious Foreshore and Seabed Act go to Cabinet today and are due to be announced on Wednesday. Can the government both clear the hapu hurdle and pass the talkback test? And what is tipuna title?

'Repeal and replace', is the phrase most people are using to describe what will happen to the Foreshore and Seabed Act this week. And while the parties involved are staying mum on exactly what  the Act will be replaced with, several Maori leaders I've spoken to seem to have a pretty good idea.

In political terms, this repeal is the riskiest decision the National-led government has faced so far. The Maori Party was formed on this issue; it's the party's grand passion and core promise. There's simply no way the Maori Party would have offered its support to National unless there was a nudge and a wink about a repeal to go with the publicly promised review announced after the coalition negotiations.

Maoridom expects. But Pakeha also demands. While most pakeha New Zealanders struggle with the ins and outs of customary rights, they understand with perfect clarity access to the country's coastline and any suggestion of "special treatment" for Maori. Whatever the government proposes will have to clear the hapu hurdle and pass the talkback test.

One thing we of which we can be fairly confident – the original Ngati Apa case won't go back to court. The Maori Party's initial complaint was that their people were denied their day in court and those people needed that right re-instated. Now, that's the last thing they want. Why leave this issue to the variables of the court, when they can come up with a political solution?

Any number of legislative techniques could be used to make a replacement bill acceptable, and I can't begin to know what they all may be. But here are my insights based on what I've heard in recent weeks.

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.

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.

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.

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.

Another suggestion has been that the threshold to establish customary rights could be lowered; having to have had undisturbed communal title to a piece of foreshore and seabed for something like 170 years is a hard test for any hapu to pass. Many have moved at some time to try to put their holdings into fee simple title. One iwi leader I've spoken to said that should be "softened".

Many Maori have been negotiating territorial rights since the previous Labour government past its act, so it's also important to many that they don't have to start again from scratch. They've been assured by officials that they won't have to.

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.

Two other quick thoughts. First, we can only hope that this re-ignites the aquaculture industry that has stalled since that Ngati Apa case back in the '90s. Second, will the government have the guts and vision to address private pakeha ownership of the foreshore and seabed at the same time as they re-define customary rights.

As one who believes that the coastline belongs to everyone and no-one, it would be nice to think that was made clear all in one go.