The Way Forward
Friday 3 Oct 2003 Richard Prebble Speeches -- Treaty of Waitangi & Maori Affairs
Foreshore, Law and Politics Conference, Saturday 4 October 2003 Grand Hall, Beehive Parliament Buildings, Wellington,
NZ Saturday 4 October 2003 Grand Hall, Beehive Parliament Buildings, Wellington, NZ
Who owns our foreshore is a tipping point.
American author, Malcolm Gladwell, in his pop business psychology book "The Tipping Point", says there occurs in
society what appears to be a spontaneous moment - a social epidemic. He points out that quite independent of opinion
leaders, the media and the establishment, the community can suddenly decide its mind on an issue. This can vary from
something as inane as young people right around the world deciding it's cool to wear their shoelaces untied, or
filmgoers discovering "My Big Fat Greek Wedding", or the community deciding that enough is enough on a never-ending
The community appears to have literally drawn a line in the sand on the foreshore and seabed. The limit to the
community's tolerance on ever increasing treaty claims has been reached.
We elect our representatives with the expectation that they will protect and preserve our nation. Due to the 200-mile
economic zone, half of our nation is either seabed or foreshore. And here is a minority government believing it has a
mandate to give away the guardianship of the asset to less than 15 percent of the population.
Until the Court of Appeal decision in the Marlborough case this year, the government and the nation believed that the
Crown owned the seabed on behalf of us all.
Then unelected judges decided to overturn law first established in the Supreme Court in 1877 and upheld by the Court of
Appeal itself in 1963 in the Ninety Mile beach case.
Our Minister of Justice, Margaret Wilson decided not to appeal the case to the Privy Council. To do so would have been
to admit to how dangerous her plan is to abolish the right of appeal to the Privy Council.
So that's the first step in the way forward on this issue. The Supreme Court Bill should be scrapped.
Labour has put out a discussion document that fails to honestly address the issues surrounding the foreshore and
Labour claims that its policy is based on four principles. The so-called four principles are on closer analysis found
not to be principles but statements of intended policy.
Principle One, the assertion that the foreshore and seabed should be public domain with open access is just a slogan.
You try walking across the Wellington container terminal. A new vague concept of public domain does not need to be
created to uphold the proposition that public access to the beaches is highly desirable.
Then the second so-called principle of regulation. The government has many powers, not just regulation.
The third is the principle that the processes should exist to recognise the customary rights of iwi. Nowhere does the
government acknowledge that other sectors of society also have legitimate interests in the foreshore and seabed. A true
principle would be to recognize all legitimate interests, Maori and non-Maori alike.
And then there is the contradictory claim that government seeks certainty.
Nothing is guaranteed to create more uncertainty than overriding existing private property rights, refusing to
reinstate the law, and creating a new undefined concept - the public domain. All these actions contradict certainty. An
honest government would just say that the Court of Appeal is mistaken and legislate to overturn the Marlborough
Helen Clark can recite on TV the focus group sound bites - "governing on behalf of all New Zealander's... protecting
New Zealander's heritage... the right to walk along the beach." These are sentiments that we all agree with. The problem
is that the Prime Minister's actions deny her words.
We know that Labour's policy is not based on principles but political deals.
The Labour Maori caucus has advanced the proposition that ownership is a Pakeha concept. That's interesting. I attended
one of the government's hui. None of the Maori there said - ownership is a Pakeha concept. Every one of the speakers
claimed that they owned the foreshore.
Another answer to the Maori caucus is to say that when Maori signed the Treaty of Waitangi they were signing up to the
real principles of the Treaty - the undivided sovereignty of the Crown, property rights, and that we are all equal under
the rule of law.
What is clear is that the government has no mandate to allow seven Maori MP's to dictate to the nation. All ten hui
also rejected their proposals.
Let me say this. These claims for resources are not the solution to the very real issues that face Maori.
All thoughtful New Zealander's do want Maori to succeed. In a multi-racial nation disparities of achievement that
follow race are a recipe for discord.
The solution to close the gaps is not a cargo cult grab for national resources.
The solution to Maori economic achievement is not to re-create tribalism in the 21^st century. Socialism has not worked
to lift living standards anywhere, ever. Iwi tribal socialism will be just as big a failure.
In making this criticism we are not disparaging Maori aspirations. We are all aware that Maori are over represented in
the misery statistics, our prisons, our hospitals, welfare and in poverty.
I spoke to one of the financial sponsors of that wonderful film "Whale Rider" that is now dazzling big audiences
overseas. She had returned from the film's premiere showing in Berlin. The film wowed the Germans but what they were
shocked by was the people's poverty.
The film's story may be mystical but the reality of East Cape poverty is real.
Twenty-five years of Waitangi settlements have made no difference to the lives of working Maori. Nor will co-management
of the nation's beaches.
The solutions for Maori are in the recipes for success that are universal - education, entrepreneurship and personal
It is also necessary to say that Maori can succeed, and are succeeding.
There are for every misery statistic just as impressive success stories. There is a Maori renaissance. Maori artists
are re-interpreting what it means to be Maori, what it means to be a New Zealander.
There are more Maori today at University than ever before, more Maori professionals, and they are not getting their
money from the grievance industry. There are record numbers of Maori in business. Hundreds of Maori, the majority women,
have gone into business and are making a go of it. The businesses are succeeding despite attempts by government to
legislate to corale them into socialism.
When we make a stand against iwi tribal socialism we do so, not because we want Maori to fail, but because we want
Maori to succeed.
So what should the parties of the centre-right's response be? The first is to say to government, why do anything?
In a free society, all citizens, regardless of race have the right to go to court and assert a property claim.
If it is correct, as every Court of Appeal judge indicated, the Marlborough iwi's case will fail. So what is all the
If the Maori Land Court applies what is both British and Maori common law, very few, claims by iwi and hapü to the
foreshore and seabed can succeed.
Customary title is a very poor form of ownership. It's use it or lose it.
The Australian courts have rejected Aboriginal exclusive claims to the foreshore.
The government's real concern may be that activist judges, the ones they have appointed to the courts, may invent new
legal doctrines. This is not an idle fear. Maori Land Court judges who have also been appointed to the Waitangi Tribunal
have invented new legal doctrine to uphold claims to oil, minerals and fishing - where in law no claim was justified.
Our Westminster system of democracy with no written constitution becomes an arbitrary dictatorship where unelected
judges can make up law.
Parliament does need to reassert its authority. Where there is need for new law it is for the elected representatives
to pass legislation. It is the duty of judges to interpret the law, not to rewrite the law. Parliament needs to do its
task and not pass legislation that is so vague that it requires judges not to interpret but to legislate.
It is irresponsible of parliament to put into legislation phrases so vague that they invite judges to become lawmakers.
A phrase such as "the principles of the Treaty" is such a phrase. The phrase the "Public Domain" is another.
Often the most straightforward solution is the best. I propose that the parties of the centre-right endorse the
following five principles.
First: The government should appeal the Marlborough decision to the Privy Council - it can do so by joining the
Marlborough Harbour Board appeal.
Second: Government should abandon its plan to abolish an important part of our constitution - the Privy Council.
Keeping the Privy Council would send a very strong signal to our unelected judges that it is their duty to interpret the
law not invent the law.
Third: We reject the republican concept of public domain. The concept of the Crown is our New Zealand heritage. Today
the Crown is all of us; there are not two parties. There are in this country four million equal parties, all equal
before the law. We stand for undivided sovereignty.
Fourth: We uphold property rights. There is and has been for years legitimate private property claims to both the
foreshore and seabed. Developments like Marine farming require title that allows exclusive secure ownership. Public
access to our beaches does not require that those private property rights be extinguished. Crown ownership of the seabed
and foreshore does not exclude Maori from exercising their customary title, should they be able to prove that they do
own and have continuously exercised such title.
Five: We absolutely reject race-based law.
Race is the issue. Labour is promoting race-based policies and race based law.
Nowhere in the Treaty is there such a principle. Under the Treaty Article III we are all British subjects equal before
Nations that base their laws and their policies on race cannot survive.
I came away from the Hastings hui deeply concerned. Twenty-five years of the Treaty grievance industry has not united
this country, it has created two nations.
It's time to make a stand. To paraphrase Churchill - to fight them on the beaches.
Only the centre-right can make a stand for one sovereign nation, indivisible. A stand for a colour-blind nation. A
stand for a New Zealand where we are one people.
That is ACT's policy. That's where we stand. It is the only way forward.
For more information visit ACT online at http://www.act.org.nz or contact the ACT Parliamentary Office at