Fairbrother Russell: Address in Reply 
Fairbrother Russell: Address in Reply 
[Volume:628;Page:422] 
RUSSELL FAIRBROTHER (Labour) 
: 
 Mr Assistant Speaker I congratulate you along with the Hon Margaret Wilson Clem Simich and Ann Hartley on your re-election as Speakers in this Parliament. I am sure that you led by the Hon Margaret Wilson are already putting your stamp on Parliament by showing leadership and precision in the rulings. I think that this collection of Speakers led by the Hon Margaret Wilson will go down on the record as being a very successful leadership of the affairs of the House. 
I thank the 14000-odd people of Napier who voted for me this time—in fact that is about the same number of people as voted for me last time when I was successful. 
Dr Wayne Mapp 
: I raise a point of order Mr Speaker. I do not wish to interrupt the member but it is customary to allow a minute or so whilst members congratulate a member particularly one who has made a maiden speech before another member starts. Mr Fairbrother started straight into his speech and I think he would have done the House a courtesy if he had waited at least a brief moment of time. 
The ASSISTANT SPEAKER (H V Ross Robertson) 
: I thank Dr Mapp. I accept responsibility for that. 
RUSSELL FAIRBROTHER 
: I say to Dr Mapp that I in fact waited for the indication from the Speaker. 
I thank my campaign team who worked very hard and were led by Joan Coppell. I thank the two staff members Raewyn Barry and Jason Smith who ran a very busy electorate office. They worked very hard for the last 3 years—far and above the hours required by the Parliamentary Service. It was indeed a busy electorate office. One of the first realisations I had after the tragedy of the loss of the Napier seat for this next 3 years was that I would be free of constituency work. That ambition however failed in the first few weeks. The workload is increasing as people realise that the only way to get accurate and successful representation is with a Government member of Parliament and particularly one with experience in advocacy. 
That takes me to my friends the members of the Maori Party. I sought this speaking slot because following the speech of Dr Pita Sharples— 
Hon Bill English 
: How could you lose Napier? 
RUSSELL FAIRBROTHER 
: I know where Napier is; I did not lose any votes. I enjoyed the passion of Dr Sharples’ maiden speech. I share some of his identification as tangata whenua although I do not claim that status—as a lawyer I believe I cannot lay claim to that status. However I take issue with the part of his speech that referred to the Foreshore and Seabed Act. Although he made an assertion that he no doubt believes and he gets support from some academic quarters—as shown particularly in the latest issue of the  
Victoria University of Wellington Law Review 
 which has a 30-page article on the process before the United Nations Committee on the Elimination of Racial Discrimination—his speech contained as did the article written by the learned authors in that law review a fundamental misconception about why the Foreshore and Seabed Act was so necessary. 
I take issue with Dr Sharples’ comments that the legislation produced the single greatest act of confiscation against all tribes since the formation of this Westminster Parliament. That assumes that Maori title whatever it would have been is the same as European freehold title. The long 30-page article in the  
Victoria University of Wellington Law Review 
 that I referred to touches on and deals with the difference but in about 25 words. The learned authors state: “In fact Maori do have a strong legal relationship with land under Maori customary law it is only that the term ‘ownership’ as understood in an English-sense is an inappropriate word to describe that relationship.” 
Of course that is the heart of the debate. The English construct of ownership and the Maori law - based construct of ownership are at the heart of the difference. That was recognised by the Waitangi Tribunal which stated in paragraph 4.3.1(3) of its  
Report on the Crown’s Foreshore and Seabed Policy 
: “It appears that the undesirability of titles being created that may be sold is a matter on which Maori and the Government agree.” Then the tribunal wrote: “Would it not be possible to introduce by legislation a simple limitation on any title that might be issued to effect this common objective?”. 
Once we prevent the ability to sell then we no longer have freehold title. The true elements of the English construct of freehold title are the ability to alienate that title and the right of exclusivity. The irony of the tribunal’s statement is that if it wanted to tag a freehold title that would have resulted from claims on the foreshore and seabed made by successful Maori applicants so that it became inalienable then that would be an act of discrimination because European title does not have that tag so would have had lesser status than the freehold title that would have been the outcome of any claim should Maori have gone to the tribunal. 
Of course the Court of Appeal in the Ngati Apa case did not state that Maori owned the foreshore and seabed. It merely stated that the Ninety Mile Beach case which was previously understood to be the law for 40-odd years was no longer a barrier to claims being made for the foreshore and seabed. The Court of Appeal noted that the prospect of any such claim being successful was very remote. It was stating there was no common law in New Zealand to interpret indigenous rights so that any applicant had to interpret the developing law from overseas. 
The Fisheries and Other Sea-related Legislation Committee was much assisted by the work of the Ngai Tahu fellow at Cambridge University Professor Paul McHugh. He interpreted the common law interpretation in New Zealand of indigenous rights as being one that is a bundle of rights rather than a right to exclusive title and the right to alienate that title. He acknowledged as is true that the indigenous title is in fact a burden on the Crown but that the Crown in assuming sovereignty under the Treaty could not sell or give better title than what it held. The title the Crown assumed in the face of a customary rights claim was less than exclusive title. Professor McHugh’s thesis generally accepted by many was that the Foreshore and Seabed Act offered a clearer route to a greater right of title than aboriginal law would deliver through jurisprudence. 
So it is possible under the redress provisions of the legislation for an iwi to negotiate directly with the Government with the good-faith provisions that surround that for a form of title that is considerably more exclusive—and even perhaps alienable—and one that could not be granted under the application of indigenous rights. When it is argued in this House as it is argued elsewhere—and it is being argued while the rapporteur is in the country at present—that the legislation produces the single greatest act of confiscation against all tribes since the formation of this Westminster Government then that proposition just cannot stand the scrutiny of the law. Just as the 4000 submitters to the committee expressed their anger that the Government had to move quickly on the issue it may well be that there is a feeling that the right to take the time to consider the issue had been taken from them. But of course the exigencies of the Resource Management Act which is presaged on the fact that the Crown has sovereignty over the foreshore and seabed required an early decision. There seems to be very little factual or even academic debate about that aspect. 
My argument for Dr Pita Sharples whom I respect considerably—and he is one of eight members of Parliament who can call Hawke’s Bay home—is that there is much to argue for tangata whenua to claim a separate status and a right to a separate consideration in our law. But to argue that case as I think it is important to do—from a legal sense at least—one must not make exaggerated statements that are populist but legally incorrect and untrue. It is particularly important since the United Nations representative is touring the country at present that his attention be drawn to the distinct difference between aboriginal title—the title that could be given from that—and the English construct of freehold title. I note that the Ngai Tahu submission to the United Nations Committee on the Elimination of Racial Discrimination—and one of the advocates there was one of the authors of the  
Victoria University of Wellington Law Review  
article—also appears to gloss over that difference by noting correctly that under indigenous law there is no better class of title or inferior class of title. But that is different from saying that the concepts are the same. 
In the submission to the United Nations Committee on the Elimination of Racial Discrimination as I have read the Ngai Tahu submission that point again is glossed over which no doubt is the explanation for the tentative response from the committee. One hopes that the rapporteur will look at the essential characteristics will read carefully the tribunal decision will look at the redress provisions and will look at the ability for claimants to negotiate a better deal with the Government than may have been possible through the jurisprudence of our court system. But of course the other aspect that will give most encouragement to the rapporteur is that there is certainty now. Any claimant can approach this issue with the certainty of legal concepts knowing the outcomes that they can negotiate for at no great expense.