This week, the review into the Foreshore and Seabed Act 2004 reported back to Government and recommended the repeal of this inequitable and racist legislation.

I say it is racist and inequitable because Maori, under the 2004 legislation, were denied the right to test the claims of various iwi and hapu to the seabed and foreshore in open court, a right open to all other New Zealanders in regards to determining matters of land ownership.

Under Article Three of the Treaty of Waitangi/Te Tiriti O Waitangi, Maori were afforded the right as British subjects to the full protection of the law and implicitly this included access to the courts on all questions of land and resource ownership. This article (as with all else in the Treaty) has been continually violated by successive governments and none moreso than by the Labour-led Government in 2004.

Under former PM Helen Clark's rule, the largest raupatu (confiscation) of land was undertaken in New Zealand's history with the passage of the foreshore and seabed legislation in 2004 which saw that part of New Zealand's natural boundary vested in Crown ownership. This law effectively terminated the right of Maori iwi and hapu to test claims regarding customary rights they may have had under the Treaty of Waitangi either through the Waitangi Tribunal or in court. Furthermore, the law's passage violated the first two articles of the Treaty of Waitangi which hold that land and other resources can only be ceded by Maori to the Crown in a fair and just negotiation and through the nationalisation process, this obligation on the part of the Crown to act in good faith was unilaterally broken. The legislation also overlooked a critical double standard in that many wealthy New Zealand and overseas owners either already owned or leased tracts of the foreshore and seabed and yet a great deal of fuss was made by mainly Pakeha New Zealanders about Maori wanting to exercise their right to collectively hold customary or other title over it.

We must remember though that the legislation was enacted by Labour in mere panic as it walked a tightrope between a Pakeha electorate which is typically dismissive of Maori grievances and its Maori constituency which largely holds that Te Tiriti is both a sacred covenant and a legal document to be honoured. This panic on the part of Labour had been largely induced by Don Brash's infamous Orewa speech delivered in January 2004 to a crowd of most white, middle-aged, middle class Rotarians. Brash was urged to make the speech by a number of key people both inside and outside of the National Party in order to, firstly, provide Brash with an easy publicity platform after his coup against Bill English in late 2003, and secondly, to give National a hoped for boost in the polls given that it was still performing poorly at that stage following its poor showing in the 2002 election. In other words, as Nicky Hager's excellent book 'The Hollow Men' notes, it was a classic use by National of 'wedge politics' designed to detach one critical component of Labour's constituency (working class and middle class Pakeha voters) so that it would begin swinging National's way.

On both counts the speech worked and both Brash and National's support was boosted in the first opinion polls taken in 2004 where they overtook Labour for the first time in nearly four years. Labour panicked about the implications of the 2003 court decision holding that Marlborough iwi could potentially test their claim to the foreshore and seabed within a fishing zone used by other local fishing companies and both Brash and National cleverly exploited the Pakeha electorate's somewhat racist fear of where would this all end?

At the same time, Labour in passing the legislation lost a considerable portion of its Maori constituency. Many within Maoridom, who had supported Labour since the time of the Ratana Church's alliance with the First Labour Government in the late 1930s (apart from a dalliance with New Zealand First in the 1990s) began to turn away from Labour as their preferred electoral vehicle. As we all know, this led to the resignation of Tariana Turia from the Labour caucas to form the Maori Party alongside respected Maori academic Dr Pita Sharples in 2004.

Fast forward to the present day and after National's victory last year, the Maori Party won an extended confidence and supply agreement with the new National Government with PM John Key making both Sharples and Turia ministers outside cabinet with Sharples being the big winner of the two in claiming the Maori Affairs portfolio. A critical component of the National-Maori Party agreement was that the Government appoint a review into the foreshore and seabed legislation and now it has come back and recommended to Attorney General Chris Finlayson that the law be repealed in its entirety. In its place, a number of ideas have been mooted including joint Crown-Maori ownership of the foreshore and seabed and the inclusion within legislation of the right of all New Zealanders to have access to the beach, irrespective of who owns it. Compensation has also been suggested as an alternative.

The recommendations have been welcomed by the Maori Party who will no doubt be pushing the law's removal from the statute books vigorously. Inevitably this will meet with resistance from within the National caucas, many of whose members believe in the 'one law for all' mantra of the right. Act, surprisingly, may be a key ally in all this as they took a similar stance to their backers in the Business Roundtable whom saw the 2004 legislation as being an attack on private property rights. Labour, the party responsible for the law's passage, will probably see opinion within its caucas become more divided again on this issue with its Maori list members urging support for the review's recommendations while others from predominantly Pakeha based electorate seats will want to stick with the existing status quo but with more proviso for customary rights to be better recognised and protected as a concession to their Maori colleagues. The Greens, being a party which has always had a strong Treaty plank in its policy platform, has already declared its support for any repeal.

Overall the biggest winners (and possible losers) from all this are the Maori Party. The party was born out of the foreshore and seabed hikoi that descended on Wellington and the events that transpired after that which culminated in the passing of the foreshore and seabed law. If the repeal were to go ahead, there are two possible scenarios ahead for the party's future. One is that the Maori Party could enjoy an upward swing in its support, both within the Maori electorate and overall party vote standings placing the remaining two Maori Labour-held electorate seats (those of Parekura Horomia and Nanaia Mahuta) at greater risk of falling to the Maori Party. Two is that the Maori Party could see the raison d'etre for its existence melt away as with the repeal of the law, the original reason for its coming into being would no longer be an issue, hence, potentially paving the way for Labour to reclaim the Maori seats and overall political dominance of the Maori political scene once again (a possibility I have raised in a previous blog) especially if unemployment continues to rise in the current recession's wake.

I believe that it's only right that the National Government takes the brave step of repealing the law as it is the only way to go. It has to be as Maori iwi and hapu should have their rights to contest claims within the legal system upheld. This issue is one of rights and justice for our indigenous people and as a nation built supposedly on the notion of a fair go for all, we should extend that concept to Maori and other societally disadvantaged groups seeking redress for past wrongs.