Prebble Richard: Foreshore and Seabed Bill — First Reading 
Prebble Richard: Foreshore and Seabed Bill — First Reading 
[Volume:617;Page:12729] 
Hon RICHARD PREBBLE (Leader—ACT) 
: 
 I rise on behalf of the ACT party to oppose the foreshore and seabed legislation. ACT is a party that believes in private property rights the rule of law the citizen’s right to go to court and one law for all. This bill violates all of those principles. Today Parliament is doing great and lasting damage to racial harmony by introducing legislation that racially discriminates. The bill discriminates against Maori. It removes the right that the Court of Appeal found that Maori have to seek a declaration from the courts that the seabed and foreshore is Maori land. The bill discriminates against non-Maori by allowing Maori to go to the Maori Land Court to seek a declaration that a particular group of Maori have this new legal concept ancestral connection with the coastline. Such status will be forever and according to the Solicitor-General it will give Maori virtual veto rights over the use of that part of the foreshore by the rest of the community. Non-Maori are discriminated against because they have no right of standing in the Maori Land Court. 
The bill is bad law. Where to start? First with a provision giving exclusive jurisdiction to the Maori Land Court on what is ancestral connection. There is no right of appeal and Maori Land Court judges are being invited to create new law. I mean no disrespect to the Maori Land Court when I say that it is not a court. The Maori Land Court is a specialist tribunal for resolving disputes between Maori landowners. Communal land ownership leads to disputes—for example when there are many owners who can build a property on the land. Those disputes by definition are disputes between Maori. 
The Maori Land Court was never set up to adjudicate on the ownership of non-Maori land and it was never set up to adjudicate in disputes between citizens at large. Those are matters for the general courts. General land issues have always been adjudicated by the High Court and there has always been a right of appeal to the High Court from the Maori Land Court. It is simply wrong that this bill gives the Maori Land Court adjudication over land that today is not Maori land and adjudication over disputes that affect non-Maori. 
 Let me make it quite clear that in opposing this bill I am upholding the rights of all citizens to go to court but I am not lending my support to claims that Maori under the treaty own all the foreshore and seabed around New Zealand. As a lawyer it is very clear to me that in law whether it be legislation the British common law or Maori customary law Maori do not own the vast majority of the foreshore and seabed of New Zealand. Legislation passed by this House implies that the foreshore and seabed are Crown land. Both Maori and British common law require continuous occupation and control for common law ownership. If Maori controlled and occupied Takapuna Beach I think we would have noticed. But it does not follow that it is not possible that there are parts of the foreshore and seabed still owned by Maori. Indeed I think it is likely that Maori do own some parts of the foreshore and seabed of New Zealand. 
I do not see any reason for panic or legislation. If this continuous ownership and occupation has caused no problems for the last 160 years it is probably going to cause no problems for the next 160 years. The fact that some of the foreshore areas are now owned by people who have riparian rights causes no problems—except to those who are ideologically opposed to private ownership. It is ACT’s view that the Court of Appeal decision in respect of Marlborough should have been appealed to the Privy Council—if only because courts should not overturn 40-year-old precedents. I do hope that even though the Court of Appeal I note was built with no windows at least one judge did notice the huge civil disruption caused by judges not following well-established precedents. 
It is for Parliament not the courts to make law. But this Government for ideological reasons decided not to appeal to the Privy Council. Having decided not to appeal the Government should have simply allowed this matter to proceed through the courts. All that the Crown had to do was to say that it is Government policy that there be public access to the beaches and the seabed. That statement would have been non-controversial. I know of no iwi that has said it would seek to limit public access. Public access will be a problem only if in the future it is somewhere limited. In that eventuality any Government could come to this House legitimately and ask for legislation and I think the House would give it. 
There is only one matter that requires legislative amendment. We all know that when Parliament gave the Maori Land Court the power to freehold Maori land it was never intended that that power would enable that court to declare non-Maori land—such as the foreshore—to be Maori land. Any claim by anyone to the foreshore and the seabed should be brought in a proper court—the High Court. 
I hope I have made it clear I do not actually support the National Party’s position. I think there are some inconsistencies. New Zealand First’s position appears to be that it is saving the Auckland Regatta which will come as a shock to them. The Green Party’s position is somewhat emotional. The reason I am speaking out is that New Zealand has no written constitution. The only protection that the public have to their rights for their private land for their rights to go to court is the 120 MPs. It may not be a populist position to stand for that but that is the ACT party’s position. 
I also say to members opposite they would be far better off to let this bill drop. This bill may well mean that the Labour Party loses its support from Maori. That may well help parties in the short term on this side of the House but long term I see that leading to political instability. I say to members opposite that racial harmony is something that every member should know is something we should be aiming for. This bill is the worst attack on it in my time in the House. I say that the best thing the Labour Party can do for its own interests but even more for the country is to drop this bill.