It Was Twenty Years Ago Today: More at Stake Than Sun and Sand.

In The Public Domain: The territory of New Zealand is the collective possession of all the people who inhabit it, and the question of how best to dispose of its resources the responsibility of their democratically elected representatives – or so argued Helen Clark’s Labour-led Government back in 2003.

“AN UNHAPPY SUMMER” is the prediction of at least one of the Maori leaders laying claim to the foreshore and seabed in response to the Government’s declaration that New Zealand’s beaches and coastal waters lie in the “public domain” - i.e. belong to all of us.

Maori nationalists have raised the prospect of fencing off public beaches and requiring non-Maori to apply for “visas” before being granted access. Titewhai Harawira has gone even further, denouncing the Government’s proposals as another “confiscation” of Maori property rights, and threatening to organise a nationwide march on Parliament in protest.

Cooler Maori heads have expressed their misgivings in less inflammatory language, but with an equal degree of concern at what they regard as the Government’s lack of respect for due process.

The Government’s parliamentary opponents are no less vociferous in their condemnation of its proposed resolution to the foreshore and seabed problem. The National Party, in particular, is highly critical of what it sees as the legally imprecise notion of a “public domain” and is urging the Government to legislate the foreshore and seabed back under Crown ownership immediately – and unequivocally.

“Crown ownership” is, however, a highly problematic expression in the context of Maori/Pakeha relations. Hard though it may be to believe, a great many Maori still construe “Crown ownership” to mean ownership by Queen Elizabeth II (who is deemed to have inherited the title to New Zealand from her Great-Great-Grandmother, Queen Victoria).

A recent example of this constitutional wrong-headedness occurred last month when a gathering of Taranaki Hapu calling themselves Te Puraranga met at Parihaka on 26 July to discuss the foreshore and seabed issue. The hui ended with a ringing declaration of “Maori sovereignty over land and sea”. Having effectively decided to tear up the Treaty of Waitangi, the group then thought it best to send a copy of their declaration to the Queen (along with other “state leaders” in the Pacific region) presumably to let her know that the Windsors’ antipodean real estate had come under new management.

It is precisely to reduce this sort of political naiveté that the Government has introduced the concept of “public domain”. Hopefully, by dispensing with the perennially misunderstood concept of Crown ownership, and replacing it with the new vocabulary of collective ownership, groups like Te Puraranga can be released from their peculiar constitutional delusions.

The territory of New Zealand is the collective possession of all the people who inhabit it, and the question of how best to dispose of its resources the responsibility of their democratically elected representatives.

In other words, sovereignty resides in the people – all the people – and is indivisible. It cannot be reposed anywhere other than in the House of Representatives - which is constructed out of the people’s electoral choices. Nor does it subsist in any ethnic group – no matter how elaborate its genealogy. And sovereignty certainly does not lie in the courts. The New Zealand judiciary exists to enforce the will of the people – as expressed in parliamentary legislation – and has absolutely no mandate to supplant it.

Those who reject these propositions must also repudiate the entire legacy of human civilisation since the Enlightenment. To invest the monarch with anything other than purely ceremonial significance; to elevate the Judiciary above the Legislature; to deny the Executive the right to govern in the people’s name; is to embrace a species of politics engendered by superstition, fed by prejudice, and disfigured by the vagaries of arbitrary power.

Regrettably, such people do exist. In a paper entitled “Some Core Values for Resolving the Foreshore and Seabed Issue” prepared by Te Hau Tikanga - the Maori Law Commission (some of whose members advise the Associate Minister of Maori Affairs, Tariana Turia) one may read the following: “The nature and extent of Iwi and Hapu title and rights to the foreshore are aspects of te tino rangatiratanga which only Iwi and Hapu have the right to define.”

In other words, 15 per cent of New Zealanders, by virtue of their bloodlines, arrogate unto themselves, exclusively, the power to define the “nature and extent’ of their legal rights vis-à-vis the remaining 85 per cent of the population. There is a name for this form of government; it is called Aristocracy: – rule according to genealogical or ethnic descent.

If that is the sort of society New Zealanders wish to live in, all they need to do is keep their heads down and their mouths shut. As an egalitarian democrat, however, I’m hoping that every Kiwi decides to spend this summer at the beach.

This essay was originally published in The Dominion Post of 22 August 2003.