Fairbrother Russell: New Zealand Bill of Rights (Private Property Rights) Amendment Bill — Second Reading 
Fairbrother Russell: New Zealand Bill of Rights (Private Property Rights) Amendment Bill — Second Reading 
[Volume:643;Page:13350] 
RUSSELL FAIRBROTHER (Labour) 
: 
 It is a privilege to take part in a debate in which every speaker addresses the issue seriously and from a different perspective. I hope I can add in a similar vein— though perhaps not of the same quality that we have heard tonight—some ideas on the New Zealand Bill of Rights (Private Property Rights) Amendment Bill and why Labour opposes it. 
I think the terminology of the previous speaker Nicky Wagner demonstrates one of the fundamental difficulties of the bill because when speaking of the British experience in 1998—when the British encapsulated a property right—she said that everyone had a right to retain his or her possessions. Of course “property” and “possessions” are similar words but they are two different concepts. 
Taxation is a property right. Taxation relates to some of one’s possessions and assets. This bill that we are discussing tonight offers no definition whatsoever of the term “property”. For that reason alone this bill must fail. We commonly think of property as real estate or we can sometimes think of it as motor vehicles or furniture but it also includes intellectual property copyright and other intangibles which I do not need to deal with tonight. 
The difficulty with a bill that has such an open-ended definition is that the unintended consequences will be tremendous. Our courts will be clogged for the next 10 or 15 years—as will this Parliament—as everyone tries to set right the cat that would be let among the legal pigeons if a bill with such a wide definition were allowed to go through this House. So for that reason alone—the lack of a definition of “property”—I must oppose this bill. It is one of the reasons why Labour opposes the bill. Of course there are other reasons as well. 
The previous speaker Nicky Wagner touched upon one of the key issues which is that what this bill seeks to protect is already protected in our common law. In a common law jurisdiction such as we have the common law exists by default when there is no statutory provision. There is no limit to the common law except what the judges perceive it to be at the time they apply precedent and consider principles. As a country that has a common law tradition such as we have—unlike the United States and Canada although common law applies in those places—New Zealand perhaps uniquely these days is one of the last true bastions of common law. For that reason alone the protections that are sought in this bill are already in existence. Therefore to vary the very wide-ranging protections that our common law does offer to those concerned about retaining any possessions or their rights to property requires very careful consideration indeed. 
That takes me to my friend Te Ururoa Flavell from the Maori Party and his argument about the Treaty of Waitangi. If one is going to support a bill such as this then one must ask why there has been no argument to lift the Treaty of Waitangi into statute form because article 2 of the Treaty makes specific reference to properties held collectively or individually. Article 2 makes very clear reference to the right of Maori to retain their property interests. But since 1840 the Treaty of Waitangi has sat in various stages of neglect and activism. Nobody has brought it on to the floor of the House to make it a binding statute of this Parliament. When the Constitutional Arrangements Committee of which I was a member last session considered these elements it also considered the issue of property rights—whatever they may be—and decided that that was a lesser issue than determining the major constitutional factors in our present constitutional arrangements. 
Of course the New Zealand Bill of Rights Act 1990 is an important constitutional document and it forms one of the integral assets in our constitutional basket as it stands at present. I suggest that what Gordon Copeland is trying to achieve with this bill is already provided in section 27 of our New Zealand Bill of Rights Act. If we look at the three subsections we see that anybody has the right to protect—particularly from the State—their property however it may be defined. Section 27 of the New Zealand Bill of Rights Act gives everybody “the right to the observance of the principles of natural justice by any tribunal or other public authority”. If we read that against the background of our common law tradition we see that natural justice applies to all aspects of life including disputes as to property. As the New Zealand Bill of Rights Act applies to actions by the State and the executive it replicates what Gordon Copeland is trying to achieve via this bill. 
The New Zealand Bill of Rights Act avoids opening up a plethora of new definitions. It avoids using the word “property” with its many many different forms and uses. There is no clear legal definition of “property” just as there is no clear natural use of the term. The use of the term “property” in this bill—as I have said—is its fundamental weakness. 
To demonstrate the power of the New Zealand Bill of Rights Act we find in section 27(2) the mandating of the right to judicial review of any decision where the elements of natural justice may have been lost. We saw that just recently when my friend Chris Carter as the then Minister of Conservation made a decision in relation to the Whangamata marina. On an application for judicial review the High Court ruled that there were elements that the Minister should have further considered. Ultimately the marina went through to the regret of many conservationists. But that demonstrates more loudly than ever that there is a clear path already in our constitutional arrangements for property rights to be upheld. 
I want to touch briefly on my friend Te Ururoa Flavell’s comments on the Foreshore and Seabed Act. With respect to him I thought it was regrettable that he brought the Act into this discussion. I accept that there is an argument either way in this matter but I think that those who criticise the Foreshore and Seabed Act as trenchantly as they do have good grounds in some aspects but certainly not when it comes to claims for property. If one reads the Foreshore and Seabed Act with care against the common law that existed at the time one sees that the rights given by that Act are in fact potentially more expansive than the common law could allow. I know that the Maori Party will never agree with what I say here. I respect its position on most things relating to Maori sovereignty issues but I do not accept the criticism that the Foreshore and Seabed Act diminishes property rights. 
Because the Foreshore and Seabed Act has been raised in this debate and I do not think that having been raised it should be left without a response I wish briefly to recap what the Foreshore and Seabed Act does to protect property rights. The Foreshore and Seabed Act seeks merely to codify the existing common law on aboriginal rights which in part is what Gordon Copeland is trying to do with this bill. The Foreshore and Seabed Act broke the common law down into two aspects: customary rights and customary title. Customary title gives the claimants the right either to negotiate directly with the Government or to go to the High Court for a declaration. On customary rights customary usage the claimants can argue the matter through the Maori Land Court because those are restricted rights. 
The Waitangi Tribunal reflected in its report the difficulty of this concept because it is so different from European concepts of ownership. A large part of the tribunal report was dedicated to a description of tikanga. The tribunal itself felt that unless tikanga was understood one could not understand the aboriginal property rights that existed in common law. The Foreshore and Seabed Act codified the common law at the time in a form that one of the great scholars in aboriginal rights—a NgaiTahu scholar at Oxford University—said was a more generous and certain codification than the state of the common law at this time. When we talk about the Foreshore and Seabed Act we should be careful to separate the angst that exists among many from the reality which is the legal construct that it reflects and which does give certainty and breadth of claim to Maori claimants who can establish either a use right or a potential title right. 
In conclusion that takes me to the question of whether property can ever be a human right. That is basically a Lockean argument. John Locke in his second treatise of Government argued that property was an important aspect of the legal construct. A New Zealand scholar Jeremy Waldron who I think is currently professor of law and philosophy at the New York University School of Law has taken quite a different view. He is a youngish man and says that to claim that property is a fundamental human right is disingenuous and reflects a view of the capitalist State that does not aid those who do not enjoy the fruits of extreme capitalism.