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Te Ururoa Flavell - Private Property Rights Bill

New Zealand Bill of Rights (Private Property Rights)
Wednesday 21 November 2007
Te Ururoa Flavell, Treaty of Waitangi Negotiations Spokesperson

The Maori 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 which has been extended to Maori under the Treaty of Waitangi.

But of course it goes even further back.

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 simply reaffirmed those rights.

We in the Maori Party support the basic proposition of the Bill, that tangata whenua have the right to own property and to be compensated in the event of deprivation of property.

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 this legislation may well have prevented the passage of the Foreshore and Seabed Act 2004 – a suggestion we felt we had better examine.

And it is of course a matter of huge and ongoing concern to us in the Maori Party – as we think of the Bill just a few places down on the Order Paper now: the Bill in the name of my colleague, Tariana Turia, the Bill to repeal the Foreshore and Seabed Act 2004.

And 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 tiriti alike.

Foreshore and Seabed

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, both in terms of Article II (which guarantees certain fundamental Maori rights) and Article III (which protects rights of Maori as British subjects).

The Tribunal concluded that in legislating away existing Maori property rights, the Crown lacked the necessary moral and legal grounds for overriding the guarantees made to Maori in article 2 of the Treaty. The Tribunal was quite specific, and I quote:

“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 Maori and non-Maori citizens equally.

The only private property rights abolished by the policy are those of Maori. All other classes of rights are protected by the policy. This breaches article three of the Treaty.”

The Tribunal thereby considered that the Crown’s proposed legislation was, in essence and effect, discriminatory, given it abolished property rights of Maori and no-one else.

They 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 Maori in article three.

The customary rights were described asdiscriminatory because the Bill placed no restrictions on non-Maori whose property rights were able to be developed.

This was a 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”.

A point well made – although we do make exception for the ACT Party which had strongly endorsed the right for Maori 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, of discrimination, that the Maori Party has therefore taken considerable pains to consider the Bill before the House tonight.

We absolutely believe that property rights need to be protected and also that Maori should receive just and fair compensation if their property rights are confiscated by the state.

And we have no doubt that the support of the Treaty Tribes Coalition in the select committee stage of this Bill, emerges from their commitment to the long-term and enduring defence of property rights of Maori and all New Zealanders.

These rights are absolutely encumbent upon any interpretation of the common law, as derived from the Magna Carta.

We see such rights as not merely flowing through from Article three of the Treaty of Waitangi, as this Bill suggests, but as a pre-existing right guaranteed continuance in Article two of the Treaty.

And it is here that we in the Maori Party have to raise concerns around the general intention of this Bill.

We believe, that unless this Bill specifically recognises Maori 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 Maori 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 any rights which may accrue to Maori 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.

So this is where our dilemma was most profound. Whilst 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, of foundation values for Aotearoa?

We commend Gordon Copeland for his initiative in raising the issues around private property rights as fundamental rights for all New Zealanders.

But we believe 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 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 Maori Party believes it is vital to engage the nation in 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 Waitangiis 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 which will grow from the land from which it belongs; which will derive from the whakapapa of this place.

We look forward to a constitution which will be unique to this place and express the aspirations and values of this place; a constitution which would best give expression to the articles of Te Tiriti o Waitangi.

We cannot support this Bill going further, but we have certainly appreciated the vision that the Member has shown in initiating such a prime opportunity for debate.


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