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:17044] 
Hon RICHARD PREBBLE (ACT) 
: 
 I want to raise a matter with the Minister. I concede immediately that I am not sure about the matters I am raising. The reason is that the Supplementary Order Paper has come in so late and there is no explanatory note. Let me say what I think the situation is. When I am looking at the position for the granting of a territorial customary right I see that it appears that the test to the High Court is a high one and is the test that the Court of Appeal would have applied but for this bill. New clause 28(2)(a) states: “that area was used and occupied to the exclusion of all persons who did not belong to the group by members of the group without substantial interruption in the period that commenced in 1840 and ended with the commencement of this Part;”. When we look at that provision we can see that there are very few parts of the foreshore of New Zealand that Maori can say they have occupied to the exclusion of all others. That is what the common law is. That is the nature of a customary right. If one does not use it one loses it. The Government could say that it is reinstating the law.  
I have no difficulty with that except when I come to new clause 34A “If no finding made application may in appropriate cases be considered under Part 3 or Part 4”. It states: “If the High Court does not make a finding under section 29 but considers that any rights identified in the application are rights of a kind that are more appropriately considered under Part 3 or Part 4 the High Court may do whichever of the following is appropriate: (a) treat the application as an application under Part 4: (b) refer the application to the Maori Land Court for consideration under Part 3.”  
The point I make to the Government is that this is an example of why the Parliament is saying that Maori are both losing and gaining. On the face of it the provision appears to be tough but it then states that even if a group does not have a customary right it can send its application off to the Maori Land Court to create one. I cannot go into Part 3—[ 
Interruption 
] No in the debate on Part 3 I will say that Maori are most certainly given that right. If I have interpreted it correctly firstly it explains why the bill is so complicated and secondly the bill is an outrage. This Parliament should not be taking away citizens’ property rights but it should not be creating them either. Here is a situation whereby the Government is taking away property rights from Maori—and that makes it racist—and it appears to me it is creating some other possibly inferior property rights for Maori and only Maori which is also racist.  
I would like the Minister to explain firstly whether I am right in my explanation and secondly what possible justification there is to say to people who no longer have a customary right and no longer own the foreshore that presumably because they once did—and because they feel affectionate towards it—they will have special rights under the Resource Management Act. I ask the Minister where the justification for that is. What possible legal principle is behind that? It seems to me to explain why this bill is so complicated. The Government wants to hide from ordinary New Zealanders that this is what it is doing. It seems to me to be stuck in the swamp of the politics it has got itself into. This is what happens when a Government moves away from clear statements of principle.  
As I read the first part of the provision it seems to me to be a clear statement of the law. Some people may not like it but that is the statement of the law. If one has a customary right and has not exercised it one loses it. One must use it or lose it. Now the Government is saying that even when the High Court finds that the parties have not used the customary right and that usage has not been exclusive it will refer them to the Maori Land Court to find new rights. I ask the Minister where the justification for that is. How can the Government possibly justify new clause 34A where if the court does not find that there is a customary right—where a group has lost the property—the application should be considered under Part 3?