Whether like Labour you believe the foreshore is everybody's or like National you think it's nobody's, this impasse was always coming. We need to debate ownership of the coastline as a whole
Those long summers of my childhood taught me to be careful of sharp rocks and rips when I was playing on the foreshore or being dumped by waves onto the seabed. National and the Maori Party are learning the same lesson at the moment, quite possibly at their electoral expense.
And y'know what? The meanest rock once again is property rights, the very same rock that caused Labour so much trouble.
The message coming from the hui held around the country in April didn't signal much hope for National's "public domain" concept, which would have seen all the foreshore and seabed not already held in private hands not owned by anyone.
As Hone Harawira said on Q+A in May:
"I don't think public domain does it for anybody. It's really just the option that the Crown thinks it might be acceptable, but I really don't think that that's where Maori want... well I know that it's not where Maori want to be. And I think it's kinda wishy washy for the rest of the country."
That line of thinking was reinforced by Ngai Tahi Chair Mark Solomon this past Sunday:
"To be blunt there are two areas that Iwi Katoa [all iwi together] who met on Friday have again unanimously rejected. One is the issue with the public domain. We refuse to forego all of our rights and put our rights to the foreshore under the public domain, as long as there are still 12 and a half thousand titles sitting there, private titles to the foreshore. If you put them into the public domain, then Iwi will have the discussion about putting all of our rights into the public domain."
After yesterday's Cabinet meeting, John Key laid it out: public domain is the government's only offer. If Maori don't want that, the current law will remain.
That has potentially opened a damaging wedge between the Maori Party and National. What's more, it's opened a division between the Maori Party, which was founded to change the law and needs it repealed to justify itself politically, and many hapu and iwi, which want change, but not at this price.
In fact, the division could go deeper, between iwi. For example, Solomon represents Ngai Tahu, where many hapu can't show "continuous usage" of their coast, and so can't claim customary rights without a law change. Other hapu can show continuous usage, so won't die in a ditch over that point.
Maori are likely to be more united, however, behind Solomon's argument that the public domain concept should be applied to all New Zealanders, not just Maori. The same principle drove Maori opposition to Labour's legislation back in 2004.
The argument then was that if pakeha could have their day in court to prove ownership of the foreshore and seabed, so why couldn't Maori? This time the question is why Maori should be asked to put their foreshore and seabed in public domain when pakeha owners aren't.
In essence, Maori are arguing 'one law for all', to quote the National party under Don Brash. Now, National is arguing for what could mischeviously be called a 'race-based' solution. (Isn't it bizarre how politics twists in on itself?)
Solomon is bang on... whether you start from the first principle that the foreshore is either everybody's (Labour) or nobody's (National), at some point you have to ask about the rest of the foreshore and seabed, the stuff hapu and iwi don't claim title over. If Maori have to give up the chance to fee-simple title, don't we have to ask what should happen to those who have fee-simple title now? And if the chief political concern is access to the beach (and royalties from the seabed), why do iwi and hapu have to share while others get to shut their gates on the rest of us.
Problem is, neither major party had the gumption to deal with this issue; they both tried to shut their eyes to this sharpest of rocks. Labour understood the principle, because they were driven by the idea of collective ownership, of beaches that belonged to everyone. But they bottled it. National never got it, because they were only driven by the sanctity of property rights.
Really, this rock was always waiting between the ocean and the beach. So what's to be done?
The only fair way round it I can see if to go back to Labour's initial instinct and say 'the coast belongs to everyone'. Or, if the public domain idea sticks, it belongs to no-one. Either way, the debate needs to encompass the entire coastline. (If you have another solution, I'd love to hear it.)
Customary rights and title would have to be dealt with by the courts. Iwi and hapu and 12,500 private owners would have to be compensated. I'm sure there are many other implications that I can't bring to mind now.
But for now we look most likely to stick with the status quo. National can shrug it off with a wink to its base. For now. Iwi and hapu can wait for another government.
The loser for now looks to be the Maori Party. This is hardly "mana enchancing". The question becomes how its leaders handle this slap down by Key, the second in a month. And what damage this does to the coalition.