Property Law Bill

Mr Speaker, Clause 8 of this Bill explicitly states that: “The Bill does not apply to Maori customary land”.

And so one may be forgiven in thinking the Bill has general application only; and may therefore escape the rigorous scrutiny of analysis this House has come to associate with the Maori Party.

What we all know, is that the specific rules and regulations pertaining to Maori land are contained within the Te Ture Whenua Maori Act 1993. And so in effect these provisions prevail over provisions in the Property Law Bill.

Because as every good bush lawyer knows, a fundamental protocol of statutory interpretation is that the ‘specific overrides the general’; and as such any particular changes to better protect Maori land need to be done through amendments to Te Ture Whenua Maori Act.

But this is where we need to have another good look Mr Speaker.

Because of course, the Maori Party is not just here to pursue the specific – or the general provisions for that matter – pertaining to Maori land.

We are here to defend Maori rights, and to uphold Maori aspirations and to do so for the benefit of all in this great land of Aotearoa.

So as a logical outcome of our reason for being, we are as interested in the effective management of the law relating to real and personal property as in keeping with even the most basic application of Te Tiriti o Waitangi.

And it is this, Mr Speaker, that gives us reason for great concern in relation to this Bill – and to many others.

And I remind the House of the rulings of Justice Chilwell in Huakina Development Trust v Waikato Valley Authority, some twenty years ago this year.

When he said, and I quote:

“the authorities….show that the Treaty was essential to the foundation of New Zealand and since then there has been considerable direct and indirect recognition by statute of the obligations of the Crown to the Maori people…..There can be no doubt that the Treaty is part of the fabric of New Zealand society”.

Having had such mandate established in the Courts, one would, therefore, have expected to see some recognition – whether direct or indirect – in this new Bill which replaces the Property Law Act of 1952 and restates certain aspects.

And yet, hello, hardly a great start to learn that there was no Maori involvement in the Law Commission report and no Maori involvement in the Bill drafting process.

So much for the principles of participation, partnership and protection.

It is of course fascinating to think that the 1952 Act being replaced by this Bill, is largely a compilation of provisions introduced many years before, some dating from one of this nation’s earliest pieces of legislation: the Conveyancing Ordinance 1842.

Which was the first legislation in New Zealand – and probably deserves mention tonight in looking at the context of this new Bill.

The Conveyancing Ordinance, was to “facilitate the Transfer of Real Property” from Maori to settlers and missionaries by specifying protocols around the buying, selling, leasing and mortgaging of land.

We cannot therefore, look at the context of this Bill without recognising and acknowledging the denial of Maori property rights, and the systematic imposition of a private property rights (individual land title) regime that has occurred over the subsequent centuries.

And just for the record, some of the other background pieces of legislation that create the policy foundation for this Bill, are as follows:

The Native Lands Act 1862 – which established Native Land Court to individualise Maori land title, and convert such lands into ‘transferable paper’

Suppression of Rebellion Act 1863 – to crush Maori resistance to colonisation, and land grabs which permitted trial by court martial and suspended the right to be protected from illegal imprisonment or be released from illegal restraint); 

The New Zealand Settlements Act 1863 – authorising land confiscations;

Provincial Compulsory Land Taking Act 1863 – which authorised Provincial Councils to take any land for public works,

Thermal Springs Act 1881 – which expressed the principle of the Crown auctioning land publicly as agent for Maori;

and the Native Lands (Validation of Titles) Act 1893 – which was essentially the validation of invalid land sales; the we will make right the lands that we have ripped off Act.

And of course the most recent in this whakapapa of legislation, the
Foreshore and Seabed Act 2004


Mr Speaker, these are but a taste of the huge range of Acts of Parliament with the intent or effect of taking Maori land – which the Parliament should be aware, forms the broader context of any legislative proposals introduced in this House.

The justification for the Property Law Bill is that the 1952 Act contains outdated, piecemeal provisions, is not user friendly, lacks clarity and does not interact well with other more modern Acts.

But we felt it important to raise in this second reading debate, that there is always a history to any law made in this land, which would benefit from both Maori involvement and the Maori worldview.

On the other hand, we think it is important to note that when making the law clearer and more accessible to a wider audience, that the law talks to each other.

And so we do just want to raise some questions around the capacity of Te Ture Whenua Maori Act 1993 in relation to mortgages, leases, the needs of property owners and mortgagees, and general property rights.

Some of the questions we hope may permeate through the remaining stages of debate for this Bill – and perhaps in further aspects of legislation, include:

Are the provisions in the Ture Whenua Maori Act relating to mortgages, leases, etc, sufficient to protect Maori land and Maori land owners?

(ii) Are there any changes needed to Te Ture Whenua Maori Act to better protect Maori land and Maori land owners?

(iii) Will the changes to general property laws proposed in the Property Law Bill have an impact on how the law is interpreted in terms of the Te Ture Whenua Maori Act and Maori land and Maori land-owners?

(iv) Is this the possibility of ‘repealing’ the current land title system?

Mr Speaker, this Bill is described as providing a ‘one stop shop’ law setting out the general rules relating to property law.

The whole thrust of the legislation is to bring together into one Act - the 1952 Act and its eighteen amendments; relevant property law rules from the common law, developed through case law; and some process-based reforms.

We absolutely endorse the intention of clarifying and reforming the law relating to mortgagee sales, leases, sales of land; purchaser agreements; deeds and other minor reforms of the law.

That’s all well and good, but I bring the House back to the words of Justice Chilwell:

“There can be no doubt that the Treaty is part of the fabric of New Zealand society”.

We did expect to see the impact and contribution of Maori participation throughout this Property Law Bill – and we did expect to see the relevance of Te Tiriti o Waitangi to the statutory interpretation of this Bill.

It has not happened – but there may still be an opportunity at both the committee stage of the House and the third reading, to remedy this appalling oversight, and we look forward to seeing that happen.