Fairbrother Russell: Maori Purposes Bill — Second Reading 
Fairbrother Russell: Maori Purposes Bill — Second Reading 
[Volume:636;Page:6896] 
RUSSELL FAIRBROTHER (Labour) 
: 
 It is my pleasure to follow Pita Paraone in speaking to this Maori Purposes Bill that member having been on the Fisheries and Other Sea-related Legislation Committee that considered the Maori Fisheries Bill. As members well know that committee was consumed with pressure and careful deliberation which allowed two further iwi to be adopted into the model—namely Ngati Hine in which Pita Paraone has some interest and Rongomaiwahine which separated to that extent from Ngati Kahungunu. As chair of that committee I confirm that we focused on the model and that the amending of detail by this bill simply follows sequentially from the fishing quota in the Fisheries Act which the Maori Fisheries Act also coordinates. 
I move to the second aspect of the Maori Purposes Bill and that is the historic Treaty of Waitangi claims. I enjoyed listening to the previous speaker Te Ururoa Flavell and one cannot disagree with many of the lofty principles to which he referred. But that ignores one thing which is that the Waitangi Tribunal sits as a court. It has judges and it has a process and a procedure akin to a court—a court of inquiry. Every court in this country has time limits. Every court in this country is bound by limitations. There is the statute of limitations and there are common law limitations. In the Crimes Act whether or not there are statutory limitations there is the limitation of the life of the offender. So when we look at the necessity to bring in a limitation on historical claims we must look at it in the reality of legal practice. 
I speak as someone with some limited experience of the Waitangi Tribunal having been the solicitor who lodged Wai 55 one of the very early claims in the mid-1980s. That was at a stage when solicitors acted pro bono for Treaty claims because there were absolutely no resources to lodge claims and working on them required love and dedication. In contrast these days claimants generally are very well funded and are able to research their matters. The Wai 55 claim was eventually resolved some 12 years later but not before the original statement of claim had been amended so many times such that it bore very little resemblance to the original statement of claim because of the better resources of successive counsel and their widening knowledge of the Treaty process. 
Clause 18 of the Maori Purposes Bill which amends the Treaty of Waitangi Act introduces new section 6AA and subsection (2) states that the limit “does not prevent a historical Treaty claim submitted to the Tribunal on or before 1 September 2008 from being amended in any way after 1 September 2008.” That is a very wide provision. All it requires is for potential claimants to identify in a general way the area of their claim and to give notice of that by lodging a pro forma claim before the tribunal. Thereafter they have all the time in the world to put their claim into an order that can make it be strongly and soundly argued. That is the history of many successful claims before the tribunal and it will continue in that way. 
It is common sense that there should be some time limit. All the kaumatua who originated the claim with which I was connected Wai 55 died within a short period of its being lodged. Those who eventually argued the claim did so by retelling stories that had been retold by three four and perhaps five generations. It was only the ability to find some objective evidence—such as middens which verified some of the oral recollection—that gave the claim the power it eventually had. It is not an unusual precept of law to have time limits and this one is very generous in the extreme because the claim can be amended in any way after the cut-off date. 
I move now to the work of Judge Norman Smith and the provision of the bill that validates the cases on which he sat. The previous spokesperson on Maori affairs for the National Party Gerry Brownlee in June of this year said that he wanted a damn good reason why this bill should be passed. Well there are 85 good reasons 83 of them being the cases that Judge Smith dealt with. Another good reason is that they are cases of some meaning to many people who have acted pursuant to those arrangements and those people should not be required because of a technicality to revisit them with the cost the stress and the difficulties accompanying them thereto. 
But picking up the 85th reason I tell members that it relates to the point that Tau Henare tried to make previously which was that Judge Smith was not a judge when he was sitting because he did not have his ticket due to a technical error. Tau Henare ignores the practice in the courts and the Court of Appeal approval of solicitors appearing in court who do not hold practising certificates. They frown upon it they object to it they comment strenuously about it being a bad practice but the litigants unknowingly involved are not subject to a rehearing. The lawyer concerned is remonstrated with but the litigants are not penalised for that oversight. To criticise this oversight is implicitly to criticise Judge Smith himself—a judge of extremely high standing a man whose reputation is large. To say that he was acting improperly is to reflect adversely on his standing as a judge. It does not do the National Party—a party that claims to uphold the rule of law—any merit whatsoever to take these cheap sideswipes at a person with such a substantial reputation who acted in good faith as he himself was unaware that the technicalities as to his temporary appointment had not been adequately completed. 
Before I conclude I want to make some comments on my good friend MetiriaTurei’s contribution. It is always a pleasure to hear her speak on matters taha Maori when she is at full steam. But I must say that her claim in relation to the foreshore and seabed conveniently forgets the work of Professor Paul McHugh who allows that the foreshore and seabed legislation that went through in fact gives more rights to Maori than they could have received under aboriginal law. Those rights arise simply from the fact that there is no right of alienation or exclusivity to land held under aboriginal title and the key concept of European freehold title is the ability to exclude or alienate. Both those factors are at best qualified in aboriginal law but under the Foreshore and Seabed Act one has the right to obtain a better title than one could obtain under aboriginal law. 
So it is an invalid argument. It is emotionally very strong but it is invalid to wind oneself up by saying that the Foreshore and Seabed Act is a continuation of the deceitful Orewa I speech and the message behind it and to run that at the Labour Government which is endeavouring in good faith to address the issues arising from the Treaty of Waitangi and to ensure that as we bring into legislation the various rights relating to customary matters that is done in a morally and legally sound way. 
I commend the Maori Purposes Bill. The errors it endeavours to rectify are errors that should be properly addressed and are addressed in this very good legislation.