Colin James: Defining moment in the building of NZ nationhood

COMMENT

Not the best place to build a nation: on the sand. But Helen Clark has no choice of ground. This is a defining moment for the nation.

For the most vociferous Maori, Clark's foreshore-seabed proposal is the last great land grab. For large numbers of non-Maori, the Maori claim for title is a beach too far.

For Clark, making the foreshore and seabed "public domain" is "building a nation".

A nation is built on agreed foundations and the shared experiences of many generations.

In the 1970s this was easily stated: we were building a European nation with Pacific tack-ons. The law was derived from the common law. The institutions were English. The ethic was Judaeo-Christian. Reason and scientific inquiry were the bases of knowledge.

That is where Bill English still is - and Richard Prebble, Winston Peters and Peter Dunne. And large numbers of European-descended folk, especially older ones.

But there has always been another foundation and another set of experiences here. That other nation is animist, its knowledge spiritual as much as experiential. The institutions are tribal. The law is derived, so Annette Sykes told the Conferenz Maori legal forum last week, from relationships.

Those relationships are not just with people or even just with other living things but with everything.

"Pakeha law is sterile and devoid of connection to spiritual relationships," Sykes said.

A lawyer like Stephen Franks, of Act, can't operate by such law. He needs the impersonal certainty of written words: black letters on the page, dispassionately and logically given force by remote and magisterial judges.

In such a law, the law of the European-descended nation, property is private and total, subject only to properly legislated regulatory constraints. Ownership is precise, exclusive and transferable.

If the Crown is owner, it may open or not its property to public use. And it may sell.

In Sykes' law, in the Maori-descended nation, ownership is a relationship, for a particular purpose.

Those in a whanau, hapu or iwi who share the connection share the ownership. The exclusion is of other whanau, hapu and iwi (including tau iwi, non-Maori) and is exclusion from the particular use, not title in the English sense. Across this gulf of understanding, mountaineer Clark has slung a rope bridge, the "public domain".

To hardline Maori and aspiring Maori entrepreneurs, making the foreshore and seabed "public domain" is "confiscation", no different from taking it into Crown ownership.

And, despite Michael Cullen's promise of negotiated compensation for those who establish customary use (or "title") before the Maori Land Court, it is confiscation - of the right to seek exclusive English-style ownership, saleable freehold title.

Freehold title has often ended in Maori land being sold. Clark and Cullen argue that the difference between "public domain" and Crown title is that "public domain" can't be sold and Crown land can.

Franks finds another difference. Citing legal authorities and 19th-century United States Supreme Court cases, he says "public domain" may not prevail over Maori claims. "Perhaps the term 'public domain' is designed to confuse the dumb Pakeha more than the dumb native," he says, with his habitual delicate choice of language.

" 'Public domain' may be more facilitative than Crown ownership of the creation of Maori privileges."

Sykes at one end of the rope bridge, Franks at the other, hacking at the guy ropes. What chance has Clark to "build a nation" when that is going on?

Clark has always been hazy about nation-building. As Minister of Culture and Heritage she has been more arts patron than national consciousness-raiser.

And she is running the foreshore-seabed issue via the third way, between the extremes of Sykes and English. Avoiding extremes is a trademark of her prime ministership and is a necessary condition of nation-building. But it is not sufficient.

More important, on the foreshore and seabed Clark is stating that Maori claims and Government concessions to claims have reached high tide. Most citizens would not stand for any more freehold titles to foreshore and seabed.

Ministers began to recognise last year that they needed pegs in the ground. This year they gingerly began to identify some peg-holes. The foreshore-seabed is one and Clark is now banking on behind-the-scenes backing from senior traditional Maori leaders. Within her ministry, Tariana Turia, echoing Sykes, has no purchase.

So this is a defining moment for Maori.

But for non-Maori from the one-nation 1970s, it is a long trek to those pegs.

Clark's mission, should she accept it, is actively to use her high office to promote nationwide commitment to the boundary she is now drawing, not just non-extremist acquiescence. Such commitment would be a crucial step to nationhood.

Without commitment, her pegs might dissolve into a line in the sand, to be obliterated by the next breeze, taking with it her prime ministership and her place in history. The stakes are high.

* Email Colin James