Franks Stephen: General Debates 
Franks Stephen: General Debates 
[Volume:612;Page:8977] 
STEPHEN FRANKS (ACT NZ) 
: 
 The ACT party had a conference on the foreshore and seabed issue on Saturday. We believe that we should ask experts to come and talk and that lots of New Zealanders wanted to participate and that these hui should not only be organised by members of Parliament for Maori. The two most experienced lawyers participating at that conference Paul Cavanagh QC and Marcus Poole emphatically agreed with a concern I had raised—that is that the Maori Land Court is not the appropriate body to decide as between Maori and other New Zealanders. Racism is infused into the law under which it operates. That court cannot be committed to justice that treats all New Zealanders equally because its statute states that it cannot. It is told to discriminate. 
For the Government of course it is now routine strategy to move political disaster areas to the courts. Firstly of course the courts take ages; secondly people get accustomed to the worst; and thirdly they forget which politician sent it there and they blame the judges for the result. 
We have been told that this Government wants to send the definition of customary interests and customary property rights to the Maori Land Court and then we are supposed to be gagged by constitutional convention from questioning or criticising the result even if it has been coolly engineered to process it through the courts. It may be and so I have been told that it could even be punishable as a contempt of court to ask about the motives and the ideologies of the judges who are left to do the dirty work. 
Pakeha of course have ignored the injustice under the Te Ture Whenua Maori Act because until now it has largely been confined to disputes among Maori. The spotlight will now go on to this little black hole in our justice system. These judges cannot be seen to be impartial how ever well and honestly they try to perform. Firstly in their ex officio role as Waitangi Tribunal members they have been clearly partisan. The notorious “holocaust” report is just the most well known example. 
 The recent oil and gas report embarked on pure legal invention—a so-called treaty interest in property that Maori claim to have lost wrongly. The Wellington Tenths Trust report addressed the seabed and foreshore issue and invited claimants to come to the tribunal if they did not get the result they wanted from the Court of Appeal. Of course they have recently been openly drumming up support for their own hearing process on the seabed and foreshore issue and it is clear that they are not concerned that they are seen to be influencing the political process. 
The Maori Land Court need not apply principles of law known in advance. It is told that it must apply tikanga Maori and as members of the Justice and Electoral Committee heard during the Supreme Court Bill hearings tikanga Maori does not even treat all Maori alike; it varies from iwi to iwi. So how can that treat all New Zealanders alike? 
The judges are not selected on the same criteria as in other courts; they are appointed by the Minister of Maori Affairs; and of course that Minister says that he is there for Maori. Labour Maori Cabinet Ministers have rejected the normal “conflict of interest” rules and principles and the Westminster rules and principles against the misuse of power for preferment of their kin. We have no evidence that these judges are appointed by a Minister who wants them to act in the best interests of all New Zealanders if there is a conflict between Maori and other New Zealanders’ interests. 
Very few of these judges have wide experience in the law outside the Maori sphere and things that affect Maori and some of them have expressed views about property rights and the rule of law that simply make them unsuitable for adjudicating between Maori and other New Zealanders. They tend to be appointed young and few have much obvious experience of commerce. The court routinely accepts unsworn statements as evidence and commonly does not cross-examine. It is quite unsuitable for deciding property rights as between Maori claimants and other New Zealanders. 
I believe that the Government indeed has its own reservations. I do not take that just from the silence of the Ministers and other Maori members present.