Franks Stephen: Debate on Prime Minister’s Statement 
Franks Stephen: Debate on Prime Minister’s Statement 
[Volume:615;Page:10960] 
STEPHEN FRANKS (ACT) 
: 
 On Tuesday I waited for the Prime Minister’s answer to New Zealand’s most burning questions. Are we working towards a State where power is parcelled out and haggled over by the anointed of two tribes: Maori and Pakeha? Is the goal a land where ethnic quotas—instead of need merit or the votes of one’s fellow New Zealanders—decide what power people have over their neighbours or what they can take from them? Or are we instead working towards the kind of humanity I marched for more than 30 years ago as a student urging the All Blacks not to play in South Africa? 
I thought the struggle was for a land where people would be free to live work marry and associate with whomever they liked and where the State was colour-blind. I thought it would be a land where people could express their culture and religion without interference from the police their neighbours or anyone else—provided they were respecting the same rights of others. I thought in particular we wanted a land where politicians could not use the levers of the State to shower State patronage on groups one has to be born into—a land where the State could offer opportunity to all without regard to their origins. 
I thought we wanted a land where there would be no respecting of skin colour by the State but where all would be equal before the law—a land where one person one vote democracy decided who ruled not a land where elected representatives could be trumped by special “involvement in decision making” as the Local Government Act archly calls it or by nepotism race class entitlement or any other perversion. I thought we wanted a land where words would keep meanings they have earned over centuries of honourable use and where sincerity would be a virtue—not something to be mocked in floods of Orwellian personal abuse. 
I ask the Prime Minister exactly when racism ceased to be a determination to discriminate on the grounds of race and became instead a refusal to discriminate on the grounds of race. When did racism flip its meaning? What does the Prime Minister now think of the ideals that I believe I shared with her? Are they just quaint to her? Are they just naive and too unsophisticated for her world of spin and of deals for votes? Should we just move on? 
Her address veered and wove to duck the most important issues for her Government this year. Her Cabinet is desperately peddling the idea that the courts the common law and the treaty force all the generous and idealistic people who live in this country to bind themselves in a kind of feudal subjection to fewer than one in 10 who will get brand new and unprecedented ancestral privileges over the coastline. 
Mahara Okeroa 
: A common law. 
STEPHEN FRANKS 
: That is not true. Neither the common law nor the activist judges required any such thing. The judges said there would be few if any areas subject to customary interests because the common law required continuous and exclusive use of those rights. It is not true that this is a worldwide movement. The Crown’s expert witness to the Waitangi Tribunal confirmed that the common law courts in Australia and the US have said there could not be any aboriginal title over foreshore and seabed. 
The common law would not give claimants anything remotely resembling what Labour is now bribing its Maori insiders with. Group veto powers exclusive development rights and immunities from local authority control and Resource Management Act processes are unprecedented and Dr Cullen is not believed by anyone on this issue. The highest law officer for the Crown told the truth on the issue. He said that the new rights go well beyond anything the courts could have given Maori—even if they had proved customary rights. 
So of course Ms Clark wants to move on. She started out swimming strongly—although in the wrong direction—by announcing she would simply reverse the judges in the legislation but by mid-August she was gasping and treading water. Her venal supporters watched her knowing she could not swim sideways out of that rip and they were not throwing any lifebelts—no they wanted to see just how much she would pay to be rescued. The lifeguards will not come to her rescue because she has always pretended to be the top swimmer around. Now she cannot swim back to the beach because everyone on the beach realises she had been planning to steal their belongings and hand them over to the gang she relies on to stay in power. Now of course they might have to do a bit of swimming themselves because the people on the beach have all started to yell: “Stop thief! Don’t steal a culture and a law that was colour-blind. Don’t take our property and hand it over for ancestral privileges.” 
It was interesting that when the Prime Minister delivered her speech on Tuesday she could not meet the eye of Dr Don Brash of Richard Prebble or of anyone else on this side of the House as she babbled about the common law and the difference between customary titles. Dr Cullen was whispering in her ear but he could not keep her safe. 
The real story is coming out. These new ancestral overseers will get power to block uses proposed by their neighbours. Of course envelopes full of rustling dollars might charm away a few of the spiritual and cultural wounds but Maori will be entitled to develop commercial activities on their beaches and elected local government will be able to object only if that damages the environment. In other words Maori will be exempt from most of the Resource Management Act in that area. 
The treaty requires none of that. It was not required by common law or by the Court of Appeal; it is required only to secure the re-election of Labour’s Maori MPs. Would the Solicitor-General have lied to the Waitangi Tribunal? Would Dr McHugh have been duplicitous? No it was someone else’s duplicity being exposed. 
I ask also whether Judge Heta Hingston and his two associates on the Maori Land Court were lying when in 1994 they rejected the notion that mana moana was any part of tikanga Maori. Let me read to the House the  
New Zealand Law Review 
 summary of the issue. A L Mikaere stated in the 1995  
New Zealand Law Review 
 when referring to Judge Hingston’s decision: “The court was particularly scathing as to the arguments about mana moana a principle which asserts that where an iwi exercised customary authority over a stretch of coastline its mana extended out from the coastline to include the sea as well. ‘We find there is no such and never has been until very recently a Maori concept: ‘mana moana’. It has become the vogue probably since the fisheries settlements began. We are of the view that it is rooted in greed and ignorance not tikanga Maori. It has no place in the matter before us.’ ” That was Judge Hingston—the judge who later set the foreshore and seabed case on its way to appeal. Here is a judge who held that the fundamental principle on which Dr Cullen wants to allocate these new feudal privileges is born of greed and ignorance not tikanga Maori. The court emphasised that. 
This was drawn to my attention by one of New Zealand’s foremost Maori land lawyers—a wise old man named Marcus Poole. Does Dr Cullen or the Prime Minister think that it is Marcus Poole who is lying? Is it Marcus Poole who has one story for elite Maori another story for ordinary Maori another story for Pakeha and another story for the Waitangi Tribunal? 
Those titles are not in the interests of Maori. They are precisely calculated to benefit that small elite—that political elite of tribal leaders who will exercise the feudal rights. For all others the titles will simply breed contempt frustration and corruption. The people who do the work on the foreshore and seabed—the people on the mussel farms; the people who take the risks and endure the risks of trying to run businesses on the coastline—will come to hate their incompetent lazy corrupt ignorant and careless overlords. 
 The only powers those overlords will have will be negative—to say “No” and to block things—because the Government is taking from them any positive property right. They do not have the property right that was guaranteed by article 2 of the Treaty of Waitangi. Instead all they get is a right to interfere with their neighbours. Without the true property right they cannot be positive and they cannot propose; they can only block hold up irritate and take blackmail fees. 
In the long run this will be a perpetual blight for the neighbours who have to live in all the towns and villages around the sea coast of New Zealand and who have to accept these feudal rights. It cannot advance hapu other than in chances to extract blackmail fees. To be given a customary title that points them straight towards obstructing their neighbours is not building the kind of country that we all sought.