Richard Prebble Speech: Foreshore and Seabed Bill 2004 Debate

I rise on behalf of the ACT party to oppose the foreshore and seabed legislation.

ACT is a party that believes in private property rights, the rule of law, the citizens' right to go to court for justice, and one law for all. This bill violates all these principles.

Today parliament is doing great and lasting damage to racial harmony by introducing legislation that racially discriminates.

The bill discriminates against Maori, by removing the right that the Court of Appeal has found, that Maori have to seek a declaration from the courts that the seabed and foreshore is Maori land.

The bill discriminates against non-Maori by allowing Maori to go to the Maori Land Court to seek a declaration that a particular group of Maori have this new legal concept "ancestral connection" with the coastline. Such a status will be forever and will in effect give Maori veto rights over the use of that part of the foreshore by the rest of the community. Non-Maori are discriminated against because they have no right of standing in Maori land Court.

The bill is bad law.

The bill is based on political expediency and electoral politics and not on clear principles.

Where to start?

Firstly, with the provision giving exclusive jurisdiction to the Maori Land Court, on what is "ancestral connection". There is no right of appeal and Maori Land Court judges are invited to create new law.

Meaning no disrespect to the Maori Land Court, it is not a Court. The Maori Land Court is a specialist tribunal for resolving disputes between Maori land owners. Communal land ownership leads to disputes, for example, who of the many owners can build on the land?

These disputes are by definition between Maori. The Maori Land Court was never set up to adjudicate on the ownership of non-Maori land or to adjudicate between the citizens at large. Those are matters for the general courts.

The general land issues have always been adjudicated in the High Court and there has always been a right of appeal from the Maori Land Court to the High Court.

It is simply wrong that this bill gives the Maori Land Court jurisdiction over land, which today is not Maori land, and over disputes that will affect non-Maori.

Let me make it clear that in upholding the rights of all citizens to go to court I am not lending support to claims that Maori under the Treaty own all the foreshore and seabed around New Zealand. As a lawyer it is very clear that in law, whether it be legislation or British common law or Maori customary law, it is very clear that Maori do not own the vast majority of the foreshore or seabed of New Zealand.

Legislation passed by this house implies that the foreshore and seabed is crown land.

Both Maori and British common law require continuous occupation and control for common law ownership. If Maori controlled and occupied Takapuna beach I am sure we would have noticed.

But it does not follow that it is not possible there are some parts of the foreshore and the seabed that is still owned by Maori, and indeed I think it is likely that Maori do own some parts of the foreshore and seabed.

I don't see that as a reason for panic or for legislation. If this continuous ownership and occupation has caused no problems in the last 160 years why is it likely to cause any problems in the next 160 years. The fact that some of the foreshore areas are now owned by those having riparian rights causes no problems except to those who are ideologically opposed to private ownership.

It is ACT's view that the Marlborough Court of Appeal decision should have been appealed to the Privy Council. If only because courts should not over-rule 40-year-old precedents. I hope, even though the Court of Appeal is a windowless building, at least one judge noticed the huge civil disruption that is caused by judges not following well-established precedent. It is for parliament, not the courts, to make law.

But the government, for ideological reasons, decided not to appeal to the Privy Council. Having decided not to appeal, the government should have simply allowed this matter to proceed through the courts.

All the Crown had to do was to say that it was government policy that there be public access to the beaches and the seabed.

Such a statement would have been non-controversial. I know of no Iwi that has said they would seek to limit public access.

Public access is only a problem if it is ever denied. In that eventuality, government could legitimately ask this house for assistance.

There is only one matter that does require a legislative amendment. We all know that when parliament gave the Maori Land Court the power to freehold Maori land it was never intended that this power would enable the Maori Land Court to declare non-Maori land, such as the foreshore, to be Maori land.

Any claim by anyone to the foreshore and seabed should be brought in a proper court, and the appropriate court is the High Court.

It will be clear, I hope, that I do not support the position of the National party who wish to declare that all foreshore is crown land except the foreshore owned by those who have riparian rights. For a party that says it favours private property rights, and one that says that it favours the rule of law, I respectfully point out there does appear to be an inconsistency in National's position.

I realise that the position the ACT party takes is not a populist one. In this country we have no written constitution. Our Bill of Rights is a totally inadequate piece of legislation that contains no property protections.

It is this parliament, and we 120 MPs, who are the guardians of citizens' rights. A society that doesn't uphold the right of citizens to own property and the right of all citizens to go to court cannot be described as being free.

Simply withdraw this bill. Have a cup of tea. Send the Solicitor-General to argue the case in court that since the Treaty, British common law has applied in this country. Wait and see the outcome of the court cases, and we may conclude this was never a problem. Should that be wrong, and should the courts make decisions that clearly affect the public interest, then and only then, should the government act. I think that if the government proceeds it could well be that Labour loses its historic support from the Maori people. Such a change may, in the short term, assist parties on the centre-right, but in the long-term it may lead to continuing political instability.

I think this bill is a calamity, not just for the Labour Party, but the nation. Parliament is doing long-term damage to the country's race relations. You do not need to be a statesman to know that good race relations is vital for our future.

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