Prebble Richard: Foreshore and Seabed Bill — In Committee Speaker Recalled In Committee 
Prebble Richard: Foreshore and Seabed Bill — In Committee Speaker Recalled In Committee 
[Volume:621;Page:17066] 
Hon RICHARD PREBBLE (ACT) 
: 
 I agree with the Minister that the National Party’s attitude towards this bill has some inconsistencies and that has come through in some of its speeches. However it is the National Party’s problem—it is in Opposition.  
Let me turn the Committee’s attention to what is really the heart of the difficulty with this bill. I could take as an example any one of the clauses that include the phrase “tikanga Maori”. For instance new clause 42(1)(b)(ii) states: “has been carried on exercised or followed in accordance with tikanga Maori …”. We then have to ask what “tikanga Maori” means. To do this we have to go to different legislation where we find that those words simply mean “Maori customary values and practices”.  
The Committee should realise how uncertain that phrase is. I do not want to be politically incorrect but let us point out that Maori customary values with regard to property in 1840 and for some time afterwards meant that one could acquire property by conquest. Are we really passing a bill that says that is the way to decide on who has the foreshore? Under that argument Maori could say that they went back and conquered Takapuna Beach last week. That is a Maori customary value and that is what the law will now say—[ 
Interruption 
]  
They have done it since 1840. The member says “since 1840”. That is true but the point I make is this—and I say it to Mr Dail Jones quite seriously: 4 years ago when Parliament was looking at different land legislation some High Court judges appeared in front of the Maori Affairs Committee. They said they would interpret anything but if Parliament put into legislation phrases like that one difficulties arose. The particular example then had to do with the Otago Harbour Board which had a foreshore problem because of a claimant who said that his ancestor had literally urinated over the area and that had given him some cultural claim. The court said that the difficulty was that the legislation Parliament had given it was so vague that the case had cost hundreds of thousands of dollars.  
Members have probably forgotten the case but I now hear some members say that we cannot put into law what Maori customary values are. That is an arrogant piece of nonsense. Why do I say it is arrogant? We took the common law principles—members should go back and look at them; in fact I quoted them to the Committee earlier with regard to clause 21—one of which is that one has to have exercised a customary activity continuously. If we as a Parliament are capable of doing that we should be capable of setting out in law what the customary values will be. Why should we do that? The reason is that we cannot have certainty—we cannot have the rule of law—unless everyone knows what it is. We are now passing a law whereby no one knows what it is—no one. There are even Maori members getting up and boasting about the fact that no one knows what the law will be.  
We also know—and I agree with Mr Dail Jones on this—that the Maori Land Court has become highly politicised. It is not really the court’s fault; I think it was a mistake to put those judges on to the Waitangi Tribunal. But Maori Land Court judges now make political speeches. They make speeches that make the Maori Party look moderate. We are handing to that group of activist judges who make the word “activist” seem passive a clause that will mean—and we all know this—whatever those judges decide it to mean. Then the judge will say that the right has to be exercised if the customary activity is “substantially” uninterrupted. What does that mean? I can hear somebody say: “Well in Maori terms 150 years is nothing.”