CHRIS AUCHINVOLE (National) Link to this
Thank you, Madam Assistant Speaker, and thank you for the acclamation from the other side of the House, as well as from my colleagues here.
Hon Darren HughesI notice that I am already being interrupted by Darren Hughes, who is interjecting not from his own seat in the House, I note. But never mind—he applies that rule to others but not to himself.
The first reading of this bill was on 11 May 2005, a couple of years ago. Members from all sides of the House, of all political flavours, on that particular occasion seemed to be very much in favour of the bill’s introduction, with the noted exception of the Green Party. Dr Wayne Mapp, Dr Michael Cullen, Dail Jones, Stephen Franks, David Parker, the Hon Georgina te Heuheu, and Peter Dunne were all very supportive in their comments at the bill’s introduction, and even though the party representation was diverse, a common thread in many of the speeches was the link between the rights of private property and democracy itself—albeit that was qualified, particularly during Dr Cullen’s speech. There were, though, a couple of warning shots across the bows of the bill, and I mention this for Gordon Copeland’s benefit, or memory. A couple of warning shots were fired across the bill during its first reading. There was a call for a definition of “property” and of the word “deprived”. I guess it was hoped that these things would be taken into account during the select committee considerations.
I suggest that this bill fails not in the submissions we received and not necessarily in debate, but in reality, because for all it expresses currently, it is an emotional response to a yet-to-be-determined and yet-to-be-defined reality. I can understand the apprehension associated with the thought processes that went into putting the bill together. If one has property, then one has the right to use it and to enjoy it, without being deprived of it without compensation. I guess that is a natural thing to feel. It is written into the constitutions of other legislation, so why is it missing from ours?
However, it is not a simple matter to produce legislation just to fit a whim or an emotion. For instance, my wife and I own property in what must be one of the most tranquil and beautiful parts of the South Island, Lake Brunner, the largest lake on the West Coast and a heavenly place to live. We use it—
Kate WilkinsonWould the member like to know more about it? We can do that. Are we deprived of our enjoyment of it at any stage? Well, not during a normal week, or during a normal weekend. There is a village population of 52. We all know one another; it is a very nice place to live.
Bob ClarksonWell, no, there is not a corner dairy. It has a service station, a garage, and a fire brigade. It is a honey of a community. But what about on the weekends, especially the long weekends, when we get visits from a couple of thousand to 3,000 “bachees”, who come to take full advantage of the lake? Actually, we do not object, at all, my wife and I. We are not offended by it, and we find it great that more and more people seize the opportunity to share our perceptions of the West Coast, the place we consider to be the stuff of good living. But there are those, I can assure members, having been the chair of the local community association—particularly those who suffer from the “last settler” syndrome—who feel they have been deprived of the use and enjoyment of their property by such activities as those involving jet boats, jet skis, helicopters, and the wonderful wild parties that occur often at weekends. They feel deprived.
How would the bill fit those circumstances? Well, the bill, in fact, would trap those circumstances, and it does. I could be told, no doubt—and I think we were told at the select committee—that those things would not apply. We were told—and I urge my colleagues to listen to this one carefully—that common sense would prevail. Have we heard that lately? Have we heard that from the other side of the House? “Never mind what the law says—common sense will prevail.” We can tell that to a clever lawyer, then watch to see what he or she can do with it.
Dr Richard WorthOh, no. How can I say that sort of thing, speaking as I am from my colleague Chris Finlayson’s desk? He would be very deeply upset and offended.
Colin KingDeeply wounded. But they do say that when—no, I digress; I will get back to the bill.
National, though, strongly supports property rights, and I can imagine the bill’s author, Gordon Copeland, being disappointed that the bill has not received a more natural fit with National thinking. What I can say for it, Gordon, is that I have rapidly come to realise, being a member of the National caucus, that we think through legislation very, very carefully, unlike those on the other side of the House. It is not the intention of the bill that presents the problem; it is the areas of uncertainty, the areas that are not defined, the areas of the bill that leave questions hanging, unanswered—a bit like questions directed to Ministers on the other side of the House at question time, really. It is those areas that cause caution.
The reach of the bill, as it is, is extraordinarily unrestricted. It could be used as an instrument for a great deal of litigation—indeed, for mischief—against the Crown and heaps of other entities, simply because it is available as a legal instrument. Lord knows, we have a surfeit of directional regulation at the moment that purposely penetrates private, personal, and public life without lighting another firework to go on a random damaging journey.
Just looking at my notes, which I wrote a couple of weeks ago, I realise now the error of my ways. I said in them that this bill would benefit from being a Government bill. I thought that if the bill were a Government bill it would enable the Crown to bring the full extent of advice on the issues to all that is encompassed in the bill. But that was before I went through the structural charade of the Justice and Electoral Committee considering the Electoral Finance Bill—and what a charade it was! That is the only word for it. I never thought when I came to this august, distinguished House that I would be obliged to sit through the low-level procedures that were engaged in during the consideration of that bill—but more on that later.
I notice that National also considers there should be a statutory basis for compensation, and that it should not simply be left to the courts. Perhaps the greatest benefit of this bill—and the thing that Gordon Copeland can be pleased about—is its alerting the rest of us to the need for a review of the Public Works Act 1981 and the Resource Management Act 1991. I know that National will fix the Resource Management Act.
Finally, there is the potential of this amendment to affect the New Zealand Bill of Rights Act. The New Zealand Bill of Rights Act is something that was completely ignored in the consideration of the Electoral Finance Bill, and this bill, I say to Mr Copeland, would affect that Act. It really requires an exhaustive consideration before the putting of it could occur, and the exhaustive consideration has not occurred. One of the committee’s major concerns is that further work was required to ensure that the terms can be properly understood and interpreted correctly without confusion before any amendment is passed. We doubt that that work is within the scope of a member’s bill. The member simply does not have the resources to achieve that, in our view. Thank you, Madam Assistant Speaker.
TE URUROA FLAVELL (Māori Party—Waiariki) Link to this
Tēnā koe, Madam Speaker. Kia ora tātou. Me mihi rā ki a koe, Mr Copeland, mō te āhuatanga o tō kōrero i te pō nei.
[Thank you, Madam Speaker. Greetings to us. I particularly acknowledge Mr Copeland, for the tenor of his address tonight.]
I pass on my acknowledgment to Mr Copeland for his bill, the New Zealand Bill of Rights (Private Property Rights) Amendment Bill, this evening.
The Māori Party has a strong interest in the central concept underpinning this bill—namely, the protection of private property rights in Aotearoa. It is, as the bill itself states, protection that has been extended to Māori under the Treaty of Waitangi. But, of course, it goes back even further. Indigenous peoples across the world recognise property rights as having arisen in Western legal thought following the colonisation of Mexico and Peru in the 16th and 17th centuries. That obligation developed into the doctrine of aboriginal title and became part of English common law. As it was, the Treaty simple reaffirmed those rights.
We in the Māori Party support the basic proposition of this bill: that tangata whenua have the right to own property and to be compensated in the event of deprivation of property. The concept of property rights as they relate to tangata whenua have, of course, taken on particular significance since the dreaded Foreshore and Seabed Act hit our shores. We note in the advice from the Justice and Electoral Committee that some submitters had suggested—[Interruption] I raise a point of order, Madam Speaker—
The ASSISTANT SPEAKER (Ann Hartley) Link to this
Members should not be standing, let alone talking and interrupting other people’s speeches. If members want to speak, they can go outside.
TE URUROA FLAVELL Link to this
I was talking about the fact that the concept of private property rights as they relate to tangata whenua have, of course, taken on particular significance since the dreaded Foreshore and Seabed Act hit our shores. We note in the advice from the Justice and Electoral Committee that some submitters had suggested that this legislation may well have prevented the passage of the Foreshore and Seabed Act 2004—a suggestion we felt we had better examine. It is, of course, a matter of huge and ongoing concern to us in the Māori Party as we think of the bill—just a few places down on the Order Paper now—in the name of my colleague Tariana Turia to repeal the Foreshore and Seabed Act. As I say to us all, this is an issue that will never subside. It will remain an issue of persistent anger and grief for tangata whenua and tangata Te Tiriti alike.
We well remember the Waitangi Tribunal report of 3 March 2004, which concluded that the Crown’s foreshore and seabed policy breached the principles of the Treaty of Waitangi, in terms of both article 2, which guarantees certain fundamental Māori rights, and article 3, which protects rights of Māori as British subjects. The tribunal concluded that in legislating away existing Māori property rights, the Crown lacked the necessary moral and legal grounds for overriding the guarantees made in Māori in article 2 of the Treaty. The tribunal was quite specific. Its report stated: “The removal of the means whereby property rights can be declared is in effect a removal of the property rights themselves. The owners of the property rights do not consent to their removal. In pursuing its proposed course under these circumstances, the Crown is failing to treat Māori and non-Māori citizens equally. The only private property rights abolished by the policy are those of Māori. All other classes of rights are protected by the policy. This breaches article 3 of the Treaty.”
The tribunal thereby considered that the Crown’s proposed legislation was, in essence and in effect, discriminatory, given it abolished private property rights of Māori and no one else. It saw the removal of the ability of the courts to further define, articulate, and award property rights to the foreshore and seabed as a violation of the rule of law, the protection of which was guaranteed to Māori in article 3. The customary rights were described as discriminatory because the bill placed no restriction on non-Māori, whose property rights were able to be developed. This was the point that economist Brian Easton raised at the time of the introduction of the foreshore law, stating his surprise at what he calls “the silence of the political right on this central issue of the protection of private property rights.” We believe this is a point well made, although we do make exception for the ACT party, which had strongly endorsed the right for Māori to fight for ownership in court, describing Government proposals as amounting to property seizure.
It is in light of this background—this background of expropriation, and of discrimination—that the Māori Party has therefore taken considerable pains to consider the bill of Mr Copeland before the House tonight. We absolutely believe that property rights need to be protected and also that Māori should receive just and fair compensation if their property rights are confiscated by the State. We have no doubt that the support of the Treaty Tribes Coalition in the select committee hearing of this bill emerges from its commitment to the long-term and enduring defence of property rights of Māori and all New Zealanders. These rights are absolutely incumbent upon any interpretation of the common law as derived from the Magna Carta. We see such rights not merely as flowing through from article 3 of the Treaty of Waitangi, as this bill suggests, but as a pre-existing right guaranteed continuance in article 2 of the Treaty.
It is here that we in the Māori Party have to raise concerns around the general intention of the bill. We believe that unless this bill specifically recognises Māori customary property rights, our experience shows us that such rights would not be protected but more properly would be subordinated to the individual property rights of New Zealanders other than Māori New Zealanders. It is irrefutable that the rights inherent in citizenship of a democracy have been, and continue to be, done away with in respect of Māori and other minority races in New Zealand.
We note with some irony and scepticism the absolute reverence with which individual private property rights are held to be sacrosanct, but that any rights that may accrue to Māori, the indigenous people of Aotearoa, are absolutely and totally seen to be of no consequence. The most cynical demonstration of how indigenous property rights do not matter, of course, rests in the ulcer of the foreshore and seabed legislation of 2004. This is where our dilemma was most profound. Although we strongly support the protection of private property rights, we believe that there are already well-established principles that protect such rights as recognised in common law.
So what would this bill add to the overall framework of human rights, and of foundation values for Aotearoa? We commend Gordon Copeland for his initiative on raising the issues around private property rights as fundamental rights for all New Zealanders, but we believe that the wider context in which such rights sit is appropriately the place for such a debate. We support the move to discuss the values and concepts that all people living in this land can debate around constitutional change. We note the advice of the Human Rights Commission that any amendment to the New Zealand Bill of Rights Act would be best achieved through a wide, participatory process, as we would expect in the process of constitutional review. There is a great need for a more substantive discussion on changing our constitutional arrangements, specifically to consider the implications of which constitutional arrangements would give best expression to the articles of Te Tiriti o Waitangi.
The Māori Party believes that it is vital to engage the nation in the discussion on Te Tiriti o Waitangi and whether its current constitutional and legislative status allows a full expression of its intent and purpose. We want to ensure that Te Tiriti o Waitangi is fairly represented in the constitutional and legislative framework, and in the minds and actions of all people of Aotearoa. We look forward to being part of an evolving and mature debate around a constitution that will grow from the land to which it belongs, and that will derive from the whakapapa of this place. We look forward to a constitution that will be unique to this place and expresses the aspirations and values of this place. We look forward to a constitution that would best give expression to the articles of the Treaty of Waitangi / Te Tiriti o Waitangi.
In closing, I say the Māori Party cannot support this bill going further, but we certainly have appreciated the vision that the member has shown in initiating such a prime opportunity for debate.
HEATHER ROY (Deputy Leader—ACT) Link to this
I rise on behalf of ACT New Zealand to support the second reading of the New Zealand Bill of Rights (Private Property Rights) Amendment Bill. Like other members, I congratulate the member whose name is attached to this bill, Gordon Copeland. I congratulate him on bringing this issue to Parliament, and I congratulate him on his stand on property rights. I am sorry that tonight we will not be seeing this bill go further.
ACT New Zealand has a very strong commitment to property rights, and therefore we will be supporting this second reading. This bill’s progress through the House has been long and, as Mr Copeland might say, tortuous. It was first introduced in May 2005, and I note that the person who gave the first reading speech for ACT on this bill was Stephen Franks, who spoke strongly at that time in favour of the bill, as I will do tonight. He noted in that first reading speech something that most members of this House are probably unaware of—that 7 years prior to that point ACT MP Owen Jennings had submitted an almost identical bill to this House. So this issue of the importance of property rights has been around for some time, and has been discussed. I say to the member Gordon Copeland “Good on you for raising this issue again so that it could be debated, as it should be, in this House.”
The purpose of the bill, of course, is to protect private property rights in New Zealand within the New Zealand Bill of Rights Act, and it is long overdue that this should happen. I will make a comment about that before I go on. This bill, as Mr Gordon Copeland noted in his second reading speech, simply aligns the position in New Zealand with the position adopted by a majority of the world’s nations. It should be emphasised, as he emphasised, that the continued omission of property rights from the New Zealand Bill of Rights Act actually puts New Zealand well and truly out of step with most of the developed world. He noted in his speech that even China today has private property rights in its constitution, and it is a sad indictment on this Parliament, particularly in respect of the two large parties, that it has not taken note of this and will not be supporting this bill tonight.
I raise a point of order, Mr Speaker. It is actually very difficult to concentrate on my speech—and I note that the previous speaker had to raise the same point of order—and be heard when many members are standing and talking amongst themselves while we have empty lobbies.
Mr DEPUTY SPEAKER Link to this
You are quite right, although the leader of a party is entitled to wander around the Chamber as much as he or she likes, to consult with members. But I note that there were more members involved than just the leader. I am sorry you were interrupted.
Thank you, Mr Deputy Speaker. It is a sad indictment on this Parliament tonight that this bill is not being pursued further. It took some time for this bill to go through the Justice and Electoral Committee, and very strong submissions were given by many groups that are widely regarded and respected in this country. The Property Council of New Zealand had strong things to say. Federated Farmers launched quite a campaign, and its members, I know, are very disappointed, too, that this bill will not proceed tonight. The Treaty Tribes Coalition also made a submission, so we had submissions from a wide range of groups. We heard from Business New Zealand and from the Human Rights Commission. We had a few quotes from them. The Human Rights Commission spoke very strongly in favour of property rights and their importance in this country.
The select committee also had input from the Law Commission. The Rt Hon Sir Geoffrey Palmer made a presentation to the committee. He put forward a speech in which he made some strong comments. He, of course, was responsible for the New Zealand Bill of Rights Act 1990. He said, in commenting much further down the track about that Act, that he had taken a deliberate action in the 1980s to exclude property rights from that bill, but on reflection today he believes they should have been included.
Mr Copeland, as I have already said, should be congratulated on bringing this matter to the attention of the House, but I do not think that this discussion should be finished tonight. It should be pursued; although, sadly, that will perhaps have to be done in a different forum.
I want to make a few comments on the issue of individual property rights. Individual property rights and the rule of law together were England’s greatest gift to this country. Article 2 of the Treaty should have been embodied in the New Zealand Bill of Rights Act. Property rights, not democracy, actually protect the weak against the strong in our society.
Mr Fairbrother might like to listen, because he might learn something here. Democracy, if we think about it logically, actually puts power in the hands of the majority, but property rights—individual property rights or private property rights—are fundamental to the liberty of the individual. People who cannot hold their property inviolate against their neighbours or the State simply do not have the practical security to exercise any liberty such as free speech, freedom of religion, freedom of association, or the like. My Māori Party colleague who spoke before me explored this issue in a great deal of detail, and I agree with the comments he made.
Individual property rights actually save environments. In the “tragedy of the commons” we have seen so many instances of communally owned assets simply being destroyed, and at some points being turned into deserts. How often have we seen that in this country with regard to fishing? Property rights create incentives that allow people to plan and to work towards the long term, towards the future. When occupiers cannot expect to get the residual, they do not have any incentive to stop the property being degraded, and they do not have any incentive to improve it. The concept of ownership—because this is what this is about—is extraordinarily important in any free society. Tonight this concept of property rights that are consistent with a society that works hard for the long term is being largely ignored by the parties voting against this bill.
I proudly stand here tonight on behalf of the ACT party and support this bill. I congratulate the member once more on bringing the issue to the attention of this House. It is an important issue, one that our society is founded on, and one that I, personally, and the ACT party, will continue to campaign for, not just in this election but well into the future. It is a fundamental on which our society is based but something that, sadly, the National Party will vote against tonight. I thought that National members, like others supporting this bill, were champions of property rights, but sadly New Zealanders are being let down in this regard tonight. ACT will be supporting this bill. Our two votes will go towards it, and we will not let this matter rest here.
NICKY WAGNER (National) Link to this
I rise to oppose the New Zealand Bill of Rights (Private Property Rights) Amendment Bill.
Gordon Copeland said he sponsored this bill because he believes that New Zealanders firmly support private property rights. Without a doubt, they do. He said that New Zealanders identified with the idea that a man’s or a woman’s house and home is his or her castle, and that there should be no confiscation without compensation. Mr Copeland went on to add that the right to peaceful ownership and enjoyment of property rights is a foundation value of our legal tradition, but he also said that common law has, therefore, always protected property rights carefully.
National agrees with all that he said. But although we very firmly support the principle behind this bill, we do not believe that it is the right way to go about protecting property rights or the right way to establish an equitable compensation regime for loss of property. The bill looks straightforward enough—there are only two clauses—but it is fraught with difficulty. We in National are troubled that its passage may have huge implications, many of which have not been fully appreciated.
The bill is a good example of a member’s bill that looks simple on the surface but amends important legislation in a way that could have far-ranging consequences. As a member’s bill, it has not been subjected to the rigorous analysis we expect of a Government bill—although I must say that my colleague Chris Auchinvole was concerned about the rigorousness applied to some of the latest Government bills that have come forward. There has been no in-depth consideration of the possible impacts that this bill could have on existing legislation, or even an estimate—not even an estimate—of the potential costs of passing this legislation. Without this work being done and a full understanding of the consequences of this amendment, it would be foolish indeed to pass this bill.
Mr Copeland argued that this bill takes its lead from article 17 of the Universal Declaration of Human Rights 1948, and that many other countries, such as the US, Canada, and the UK, have similar legislation. He said he was disappointed that property rights were not included in the New Zealand Bill of Rights Act, passed in 1990. Interestingly enough, property rights had been included in the early drafting of that bill, along with some other clauses involving other economic and social rights, but they were dropped during the select committee process with the comment: “This does not mean that those rights are of lesser importance, but, rather, that they should be protected in a different way.” Our Justice and Electoral Committee, once again debating this legislation, agrees.
Other countries also seem to agree, because although some have included property rights in their bills of rights, protection is often limited. In the United States, the Fifth Amendment prohibits the deprivation of property without due process of law, and the taking of private property for public lease without just compensation. The provisions are limited to the taking or deprivation of property, and do not protect the right of private property as such. Property is not treated as a fundamental right in US constitutional law. In the UK, until 1998 the protection of property rights was left to common law—a similar position to where New Zealand is at present—but in 1998 the UK Human Rights Act was passed, and it does include private property rights. But it also incorporates the European Convention on Human Rights, which includes an article that provides: “No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law”. The article goes on to say that these provisions “shall not, however, in any way impair the right of the State to enforce such laws as it deems necessary to control the use of the property in accordance with general interest or to secure the payment of taxes or other contributions or penalties.” In Canada, property rights are included in the Canadian Bill of Rights, but it is not part of the Canadian constitutions. Its powers are mitigated by a due process clause, and have been overshadowed by new legislation passed in 1982 called the Canadian Charter of Rights and Freedoms. The charter deliberately makes no mention of property rights or the deprivation of property, apparently as a result of further consideration of United States experiences.
Even the New Zealand Human Rights Commission, which was in favour of including property rights into legislation, recommends that amendments be made to this bill. The commission is particularly concerned that the drafting of the bill might give rise to unnecessary legal argument.
National does not support this bill. It is poorly drafted and it has not had sufficient or robust analysis. Furthermore, we believe that New Zealand property rights are sufficiently protected under common law, without the need for the express protection of New Zealand constitutional documents.
RUSSELL FAIRBROTHER (Labour) Link to this
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 Māori 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 Māori 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 Māori Party will never agree with what I say here. I respect its position on most things relating to Māori 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 Māori 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 Ngāi Tahu 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 Māori 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.
A party vote was called for on the question,
That the Bill of Rights (Private Property Rights) Amendment Bill be now read a second time.
Ayes 12
- New Zealand First 7
- United Future 2
- ACT New Zealand 2
- Independent 1 (Copeland)
Noes 107
- New Zealand Labour 49
- New Zealand National 48
- Green Party 6
- Māori Party 2
- Progressive 1
- Independent 1 (Field)
Motion not agreed to.