Franks Stephen: General Debates 
Franks Stephen: General Debates 
[Volume:611;Page:8765] 
STEPHEN FRANKS (ACT NZ) 
: 
 I respect the courts; I respect our constitution. I believe the separation of powers is a vital part of it. I believe that the Law Society and the Bar Association in expressing concern about the points I have been raising have been upholding their part in our constitution. But I believe our constitution is being eroded without people recognising it. It started a decade and a half ago when with no guidance the courts were left to decide what the principles of the Treaty of Waitangi meant. There was no room for the court to duck that—they have to make the law mean something and so they had to invent something called the principles of the Treaty of Waitangi. 
But we have now got to a stage where leaving to the courts things that are too hot to handle politically is a routine strategy. If our courts are deeply embroiled in unresolved political matters our conventions have to be recast. Politicians—elected representatives—cannot be snookered out of leading political debate. The people must be able to elect and sack someone who takes responsibility for deeply political decisions. Our constitution will not continue to work if the people cannot look and say that there is someone making those decisions that they have a right to get rid of. In a country where there is sovereignty of Parliament for the people the people should have the right to get rid of those who are making decisions that are politically contentious. The consensus that enabled Labour and National to do that for two decades is going but the heritage is still there. 
I am finding that more people around New Zealand are blaming the courts and Maori for their current unease and worry about the seabed the foreshore and other issues than are blaming this Parliament and the Government. That is not fair to Maori or to the courts. But for as long as a Government can send those issues to the courts and then hide behind the convention that elected representatives cannot examine the pressures the influences the politics the factions the beliefs and the biases that might be brought to bear then the constitution is being suborned. 
 For the last 2 weeks we have been trying to find out exactly what task this Government proposes to give the Maori Land Court. The Maori Land Court we have been told will be able to do what it will with customary property claims—anything other than grant fee simple title. That is nearly no restriction. That is nearly no prescription. How will New Zealanders trust the Maori Land Court to deal with these matters impartially when it has been set up as an inquisitorial body primarily to decide disputes between or among Maori? When it is turned into a constitutional body to decide claims between the Crown—for all New Zealanders—and perhaps 15 percent of the population that is an entirely different matter. 
Despite the soothing words of the Court of Appeal about few cases succeeding the Maori Land Court has already made its views known on this issue at Ohiwa. The counsel in that case who are now both influential Maori Land Court judges made their views clear. In the Wellington Tenths Trust decision the Waitangi Tribunal made its view clear about what should happen with seabed and foreshore claims. At the moment a division of the Waitangi Tribunal is drumming up opposition to the Government and urging claimants to hurry and get their piece in so as to influence the issue here. It is acting as a participant in the political game. 
When the Maori Land Court does not insist on evidence on oath does not generally pursue perjury does not usually allow cross-examination and accepts as evidence tales that the rest of us—indeed any other court—would never accept it is not an appropriate body to be deciding constitutional and property issues. Maori Land Court judges are appointed by the Minister of Maori Affairs who sees his role as being an advocate for Maori pumping Maori—in some cases at the expense of the rest of New Zealand. In comparison with others Maori Land Court judges are generally young and inexperienced and are often appointed to give regional tribal or even gender balance and not for their knowledge of property rights.