Undoing The State

Nation Building?: If a state is merely the institutional expression of territorial seizure, then the law is merely the state's way of justifying and entrenching the land-grab which gave it birth. By this reckoning, any State which recognises (let alone responds to) the claims of those who inhabited the territory prior to its seizure (viz The Marine & Coastal Area Bill) is committing an act of pure folly.

WHAT IS THE DEBATE over the foreshore and seabed really about? Is it simply an argument over who has the best claim to ownership (and, therefore, right-of-access) to New Zealand’s beaches? A dispute over the precise nature of "Customary Title" – driven by a dispossessed indigenous minority desperate to retain this last, vestigial margin of their patrimony? Or is it about something altogether more profound? Is the debate over the foreshore and seabed really about the nature of law, and the future of the state which enforces it?

Let’s not forget that this whole debate began when the Court of Appeal, overturning decades of what was believed to be "settled law", ruled that the customary rights of Maori to the resources of the foreshore and seabed had not been extinguished by the Crown. If those rights could be legally established, said the Court, full ownership of the designated land and resources could pass to the claimants.

The rest of the story is well known to us all, so let’s pause here and ask ourselves what, exactly, the Court of Appeal thought it was doing – or more accurately undoing.

A majority of the judges of the Court were clearly of the view that the New Zealand State was conceived in law and remains subordinate to legal principles and precedents. According to this view, the ownership rights of a country’s aboriginal inhabitants, if not formally and explicitly extinguished, remain in force.

But, as the excellent docudrama, Waitangi: What Really Happened, broadcast on Waitangi Day makes hilariously clear, New Zealand wasn’t conceived in anything except utter confusion. Such law as there was existed only where there was both the will and the means to enforce it. Hone Heke’s axe spoke eloquently and repeatedly on this subject.

Indeed, one could argue that the law – as a tangible and enforceable set of rules – only acquired a purposeful existence after the concrete foundations of the New Zealand State had already been laid.

That didn’t happen at Waitangi – or even at the inaugural meeting of the first New Zealand Parliament in 1854. New Zealand, in the sense of a related and co-ordinated set of institutions operating beyond the effective challenge of any other entity organised within the same territorial space, only came into existence when the settlers, assisted by several thousand imperial troops, invaded the lands and extinguished the authority of the Maori King.

That moment has been described by the legal historian, Professor Jock Brookfield, as "a revolutionary seizure of power" by the Settler State. Professor Brookfield’s description is consistent with the school of jurisprudence which holds that only when there is no other source of legitimate authority to challenge the means of its enforcement does law become real. In other words, law is a consequence – not a precondition – of state creation.

According to this view, the state is born out of what is essentially an act of territorial seizure: not to put too finer point upon it – a land grab. The whole state-building process being nothing more than an elaboration of the means required to hold onto and then manage the territory seized. The mechanisms we construct to do this are dignified by the name of "law". It is, however, dangerous to construe a legal system as anything other than the State’s creature. The law is only ever accidentally about justice. It’s always about politics.

Helen Clark understood all this very well. Her Foreshore & Seabed Act, which Maori quite accurately described as another raupatu – forcible seizure of territory - not only reiterated the "legitimacy precedes legality" formula for the benefit of the Court of Appeal, but also reaffirmed the brute historical reality that "New Zealand" was made by Pakeha, for Pakeha. If Maori were willing to become Pakeha, they could belong. If not – there’d be trouble.

I wonder if the Prime Minister fully appreciates what his Attorney General is undoing with the Marine & Coastal Area Bill – and how difficult it will be to refasten.

This essay was originally published in The Dominion Post, The Timaru Herald, The Taranaki Daily News, The Otago Daily Times and The Greymouth Star of Friday, 18 February 2010.