Harawira Hone: Property Law Bill — Second Reading 
Text is incorporated into the Bound Volume 
Harawira Hone: Property Law Bill — Second Reading 
[Sitting date: 11 September 2007. Volume:642;Page:11766. Text is incorporated into the Bound Volume.] 
HONE HARAWIRA (Maori Party—Te Tai Tokerau) 
: 
 Kia ora Mr Deputy Speaker. Tena tatou katoa e te Whare. Clause 8 of the Property Law Bill explicitly states that “This Act does not apply to Maori customary land…”. So one may be forgiven for thinking that the bill has general application only and may therefore escape the rigorous scrutiny of analysis that this House has come to associate with the Maori Party. We all know that the specific rules and regulations pertaining to Maori land are contained within Te Ture Whenua Maori Act of 1993. In effect those provisions prevail over provisions in the Property Law Bill. 
Of course as every good bush lawyer knows a fundamental protocol of statutory interpretation is that the specific overrides the general and as such any particular changes to better protect Maori land needs to be done through amendments to Te Ture Whenua Maori Act. But that is where we need to have another good look because of course the Maori Party is not here just to pursue the specific—or the general for that matter—provisions pertaining to Maori land. We are here to defend Maori rights and to uphold Maori aspirations and to do so for the benefit of all who live in this great land of Aotearoa. It is a logical outcome of our reason for being that we are as interested in the effective management of the law relating to real and personal property as we are in keeping with even the most basic application of Te Tiriti o Waitangi. It is this that gives us reason for great concern in relation to this bill and to many other bills. 
I remind the House of the rulings of Justice Chilwell in  
Huakina Development Trust v Waikato Valley Authority 
 some 20 years ago when he said: “the authorities … show that the Treaty was essential to the foundation of New Zealand and since then there has been considerable direct and indirect recognition by statute of the obligations of the Crown to the Maori people. … There can be no doubt that the Treaty is part of the fabric of New Zealand society.” Such a mandate having been established in the courts one would therefore have expected to see some recognition—whether direct or indirect—in this new bill which replaces the Property Law Act of 1952 and restates certain aspects. Yet hello it was hardly a great start to learn that there was no Maori involvement in the Law Commission report and no Maori involvement in the bill drafting process. So much for the principles of participation partnership and protection! 
It is of course fascinating to think that the 1952 Act being replaced by this bill is largely a compilation of provisions introduced many years before—some dating from one of this nation’s earliest pieces of legislation the Conveyancing Ordinance of 1842. That was the first legislation in this country and probably deserves mention tonight in looking at the context of this new bill. The Conveyancing Ordinance was to “facilitate the Transfer of Real Property” from Maori to settlers and missionaries by specifying protocols around the buying selling leasing and mortgaging of land. We cannot therefore look at the context of this bill without recognising and acknowledging the denial of Maori property rights and the systematic imposition of a private property rights—individual land title—regime that have occurred over subsequent centuries. 
Just for the record I tell members that some of the other background legislation that created the policy foundation for this bill are the Native Lands Act of 1862 which established the Native Land Court to individualise Maori land title and convert such lands into “transferable paper”; the Suppression of Rebellion Act of 1863 which crushed Maori resistance to colonisation and land-grabs permitted trial by court martial and suspended the right to be protected from illegal imprisonment or to be released from illegal restraint; the New Zealand Settlements Act of 1863 which authorised land confiscation; the Provincial Compulsory Land Taking Act of 1863 which authorised Provincial Councils to take any land for public works; the Thermal Springs Districts Act of 1881 which expressed the principle of the Crown auctioning land publicly as an agent for Maori; the Native Lands (Validation of Titles) Act of 1893 which was essentially the validation of invalid land sales—the “We Will Make Right the Land We Have Ripped Off Act”—and right through to the Foreshore and Seabed Act 2004. These Acts are but a taste of the huge range of Acts of Parliament that have the intent or the effect of taking Maori land—which as Parliament should be aware forms the broader context of any legislative proposals introduced in this House. 
The justification for the Property Law Bill is that the 1952 Act contains outdated piecemeal provisions is not user-friendly lacks clarity and does not interact well with other more modern Acts. But we felt it important to raise in this second reading debate that there is always a history to any law made in this land and that any law would benefit from both Maori involvement and the Maori world view. On the other hand we think it is important to note when making the law clearer and more accessible to a wider audience that laws talk to each other. 
So we want to raise some questions around the capacity of Te Ture Whenua Maori Act of 1993 in relation to mortgages leases the needs of property owners and mortgagees and general property rights. Some of the questions we hope may permeate the remaining stages of debate on this bill—and perhaps further aspects of legislation. Firstly are the provisions in Te Ture Whenua Maori Act relating to mortgages leases etc. sufficient to protect Maori land and Maori landowners? Secondly are any changes needed to Te Ture Whenua Maori Act to better protect Maori land and Maori landowners? Thirdly will the changes to the general property laws proposed in the Property Law Bill have an impact on how the law is interpreted in terms of Te Ture Whenua Maori Act and Maori land and Maori landowners? Fourthly is there the possibility of repealing the current land title system? 
The Property Law Bill is described as providing a one-stop shop law setting out the general rules relating to property law. The whole thrust of the legislation is to bring together into one Act the 1952 Act and its 18 amendments; relevant property law rules from common law that have developed through case law; and some process-based reforms. We absolutely endorse the intention of clarifying and reforming the law relating to mortgagee sales leases sales of land purchaser agreements and deeds and other minor reforms of the law. 
That is all well and good but I bring the House back to the words of Justice Chilwell: “There can be no doubt that the Treaty is part of the fabric of New Zealand society.” We did expect to see the impact and contribution of Maori participation throughout this Property Law Bill and we did expect to see the relevance of Te Tiriti o Waitangi to the statutory interpretation of this bill. They have not happened but there may still be an opportunity at both the Committee stage of the House and the third reading to remedy this appalling oversight and we look forward to seeing that happen. Tena koe e te Whare. Tena tatou katoa.