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Marine and Coastal Area (Takutai Moana) Bill

In Committee

Tuesday 15 March 2011 Hansard source (external site)


FinlaysonHon CHRISTOPHER FINLAYSON (Attorney-General) Link to this

The preamble is a reasonably brief part of the Marine and Coastal Area (Takutai Moana) Bill, but it sets out quite a lot of history. Recital (1) states that the starting point of the debate over the foreshore and seabed, which has gone on for many years, was the decision of the Court of Appeal in Attorney-General v Ngāti Apa. The response of the Government of the day was the Foreshore and Seabed Act of 2004.

It is worth recalling a little of the parliamentary history of that legislation. The bill was introduced and referred to a special select committee, the Fisheries and Other Sea-related Legislation Committee, then reported back to Parliament, whereupon the bill proceeded under urgency: its second reading, Committee stage, and third reading occurred within one sitting day. It is interesting to observe, when one considers the legislative history of the matter, that during that period of urgency the Government tabled numerous Supplementary Order Papers, making significant changes to the bill, including the 67-page Supplementary Order Paper 302, which Opposition MPs were given to digest during their 1-hour dinner break.

The legislation was—I believe, in good faith—aimed at securing an enduring resolution of this vexed issue, but that did not prove to be the case. Indeed, there has been both national and international criticism of the legislation. I refer, for example, to recital (2), which sets out the report of the United Nations Committee on the Elimination of Racial Discrimination and the report of the special rapporteur, Mr Stavenhagen, who came to New Zealand and expressed his concerns about the legislation.

It is notable that last year another special rapporteur, Mr James Anaya of the University of Arizona, came to New Zealand. He recently produced a report that stated he was “pleased to hear of recent legislative developments aimed at addressing the concerns raised by Māori regarding the Foreshore and Seabed Act of 2004.”, and that the bill that is now before the Committee represented “a notable effort to reverse some of the principal areas of concern of the 2004 Foreshore and Seabed Act.”

Recital (3) recounts the history of the matter since this Government came into power, and refers to the report of the ministerial review panel and to the work undertaken to achieve an enduring solution. Recital (4) talks about what the proposed Act will take into account. A couple of minor amendments to the preamble are proposed: reordering words and so on, and introducing the concept of manaakitanga.

The preamble, as I say, sets out the history of the matter, and represents the endeavours by this Government to find an enduring solution to what I acknowledge has been a vexed problem for many years.

GoffHon PHIL GOFF (Leader of the Opposition) Link to this

The Labour Party is opposed to the Marine and Coastal Area (Takutai Moana) Bill. The bill does not achieve the purposes that are set out in Part 1. I recall very clearly the Prime Minister saying that he wanted to settle this issue; this bill does not settle the issue. The bill states that it provides a durable solution; this bill does not provide a durable solution. The Māori Party itself says the bill does not provide a durable solution. It says that it is simply a temporary stopgap.

TremainChris Tremain Link to this

I raise a point of order, Mr Chairperson. This is a tight debate. It deals with the preamble. I ask you to call the Leader of the Opposition to account on this issue.

TischThe CHAIRPERSON (Lindsay Tisch) Link to this

I will determine the relevancy.

GoffHon PHIL GOFF Link to this

The purpose clause states that the purpose of the bill is to establish a durable scheme. Tariana Turia and Pita Sharples are both on record saying that it is simply a stopgap, a stopgap until they can get more. If that is all that this bill is, the Minister in the chair, the Minister for Treaty of Waitangi Negotiations, is wasting the time of this House in bringing it in.

I remember very clearly the Prime Minister saying that if there was not broad support for the bill, then he would withdraw it. Was there broad support for the bill? Four and a half thousand submissions to the Māori Affairs Committee from a cross-section of New Zealanders were, overwhelmingly, opposed to this legislation. They were strongly opposed to this legislation. Supporters of the National Party are strongly opposed to the bill. Supporters of the Māori Party are strongly opposed to the bill. And the reason the Māori Party has been split asunder is that its members themselves could not reach agreement on the bill.

We should not be surprised at that, when we consider the history of the bill. The bill is a response to the foreshore and seabed legislation. National members when in Opposition said that the foreshore and seabed legislation went too far and bent over backwards to give the Māori people more than they should get. National ran the campaigns of iwi versus Kiwi and dog whistling, and the race-based card was played time and again. I can tell members that hundreds of letters that have been sent to the Prime Minister and copied to me, from every electorate represented by the National members opposite, state that the Prime Minister—[Interruption]

TischThe CHAIRPERSON (Lindsay Tisch) Link to this

The member interjecting cannot bring the Chair into this debate. I ask the member—and all members—to remember that the Chair is not part of this debate.

GoffHon PHIL GOFF Link to this

The truth is National promised one thing before the election and betrayed its own supporters by not delivering what it had promised. And the Māori Party did exactly the same thing. The Māori Party said that the foreshore and seabed legislation was a disgrace and a disaster, but it has ended up supporting what National has put in this legislation, which most of the Māori Party’s supporters cannot differentiate from what was in the foreshore and seabed legislation.

The reason this bill fails is that it is simply a fig leaf. It is a fig leaf for National to hide the fact that it promised one thing and delivered something totally different through the Attorney-General, and it is a fig leaf for the Māori Party because it promised something that even two-thirds of its own supporters say it has failed to deliver. No wonder there is embarrassment. No wonder there is the determination to pass this legislation under the cover of the Christchurch earthquake. The National-led Government said to Parliament that this is a time to avoid bitter, partisan dispute. That is what Government members said, but what did they do? They brought in this legislation, hoping that nobody would notice because we were all focused on the needs of the people in Christchurch.

If that was all that National did, it would have been bad enough, but National went through the 4½ thousand submissions—and the department spent hours and hours of time analysing those submissions—it went back to the select committee, which was chaired by Tau Henare, and after hours of people giving submissions and after countless hours of the department compiling a report, how long did the select committee give to the consideration of this bill?

TischThe CHAIRPERSON (Lindsay Tisch) Link to this

Before we carry on—and I will give the member the call—I remind the member that we are on the preamble, and I ask that from now on we stick to the preamble. That is what we are debating.

GoffHon PHIL GOFF Link to this

The preamble sets out the history of this legislation. This legislation was introduced and referred to the select committee in the pretence that people’s voices would be heard. It makes a farce of the democratic process for people not to have been heard and for Tau Henare to have forced this legislation through the select committee in 2 hours. The select committee had 2 hours to consider thousands of submissions and to consider a 500-page report. The chairman of the select committee might be a speed-reader but I do not believe that he—

TremainChris Tremain Link to this

I raise a point of order, Mr Chairperson. Following your previous ruling—

TischThe CHAIRPERSON (Lindsay Tisch) Link to this

Thank you. I will determine relevancy. I ask the member to stick to the preamble.

GoffHon PHIL GOFF Link to this

As the preamble sets out, what the House should be trying to do is find common ground. We had division over the foreshore and seabed legislation. Everyone in this House now agrees that it was right to legislate for public access. Every party agrees on that. Every party in this House agrees that customary title is something that should not be alienated. What we are seeking to resolve is how to determine customary title. What the bill does—and the preamble sets out the history of it—from the way that it is constructed is provide that customary title can be determined not impartially and independently by the judiciary, but, rather, by a political deal between the National Government and the Māori Party. We saw such political deals on the emissions trading scheme—

TischThe CHAIRPERSON (Lindsay Tisch) Link to this

I have mentioned—and I will not say it again—that we are on the preamble. The preamble is on page 7. I ask the member to come back to the preamble.

MallardHon Trevor Mallard Link to this

I raise a point of order, Mr Chairperson. The preamble does set out the history of this legislation.

TischThe CHAIRPERSON (Lindsay Tisch) Link to this

I know what the preamble does, thank you. The member has just talked about the emissions trading scheme. Let us focus on the preamble. It is very clear what it is. I ask the member to continue.

MallardHon Trevor Mallard Link to this

I raise a point of order, Mr Chairperson. The Minister in the chair made some very broad comments about this agreement. All that the Leader of the Opposition said was that it was, effectively, a dirty little deal like the emissions trading scheme.

TischThe CHAIRPERSON (Lindsay Tisch) Link to this

I gave some latitude in the first 5-minute speech and I am now asking the member, and other members when they come to speak, to focus on the preamble.

GoffHon PHIL GOFF Link to this

The key issue, as set out in the preamble in reference to the Ngāti Apa decision, is how one determines claims of customary ownership. Labour got certain things right in the Foreshore and Seabed Act. It got it right about statutory protection of public access. It got it right about non-alienation of customary titled land. We freely acknowledge that we did not get right the denial of access to the court. We stand ready in the Chamber today to work with every other party to find common ground for a durable solution to this problem, if there is a will on the part of the National Government and the Māori Party to do so. I regret that there is no will. If there was a will, the democratic process would not have been aborted in the way that it has been by the lack of select committee consideration of the bill. It would not have been transgressed by the refusal to give advice on what the grounds for customary title are. Why has the Attorney-General not been prepared to make available to the House the legal advice that he has received on this issue? If he made it available we could have a properly democratic and transparent process. Why has this bill been rushed back without proper select committee examination? Why is it now being rammed through under the cover of the Christchurch earthquake?

TremainChris Tremain Link to this

I raise a point of order, Mr Chairperson. I just cite clause (2) of Standing Order 107, “Relevancy”—

TischThe CHAIRPERSON (Lindsay Tisch) Link to this

Sit down. I have made clear what we are on, and I will determine whether the member goes overboard. He has a minute 20 remaining

GoffHon PHIL GOFF Link to this

What we are trying to do—and as set out in the Ngāti Apa decision—is to find a solution that is durable, fair, open, and transparent. We can see that the answer in this bill does not address the dilemmas set out in the Ngāti Apa decision. It does not provide for durability. It does not provide a process for transparency or democratic input. It does not settle the issue of Ngāti Apa, because it leaves this House and this country more bitterly divided than they were before. It does not settle the issue. John Key has reneged on his undertaking that unless there was broad support for this bill, it would not go through. Every member of the National Party opposite buries their head in shame because they have received letters that have been copied to me that accuse National of a total sell-out, a betrayal of its promises, of being totally misleading, and of not achieving something that Labour set out to achieve in addressing this bill, which was to bring the country together, which was to bring Parliament together, and which was to consider a way of properly addressing these issues.

TureiMETIRIA TUREI (Co-Leader—Green) Link to this

What is it with all the men screaming today, especially when we are hearing it from members of the House who were responsible for putting in place the Foreshore and Seabed Act 2004? That legislation created, in the first place, the discrimination, the inherent injustice, and the confiscation that the Marine and Coastal Area (Takutai Moana) Bill is supposed to protect us from but dismally fails to. I note that other male members of the House who are part of this whole “man screaming” thing were also opposed to the 2004 legislation and had quite a different view in those early years from the one they have now. None the less, we have this bill before us. It is a disgrace.

The preamble is very interesting in the way it sets out the history of the process by which this bill has come about. I will briefly address a couple of issues. The preamble raises the question of discrimination. It states that concern was raised about the discriminatory effect of the 2004 Act on whānau, hapū, and iwi. That was highlighted by the United Nations Committee on the Elimination of Racial Discrimination and the United Nations special rapporteur. That is quite right. The committee and the special rapporteur, who visited here and produced a report, highlighted the discrimination, particularly around the unequal treatment of Māori and the unequal treatment of the different kinds of title. The Greens have raised this issue before, and we will be dealing with it later on in the Committee stage.

The issue raised is about the different treatment of the different kinds of title. On the one hand there is freehold title, and on the other hand there is customary title. The different treatment of these kinds of title comprised a large part of the criticism of the United Nations committee. That issue was also raised by the ministerial review panel that was set up by the Māori Party to have another go at looking at this issue. Members should not forget that we have had three major rounds of public submissions on this legislation, only to find ourselves dealing with exactly the same bill that we dealt with in 2004. Under the bill Māori land is still confiscated and Māori are still treated in a discriminatory way. The ministerial review panel was also clear that that principle of equal treatment had to be a core part of any further framework on how to deal with the foreshore and seabed issue. It said there should be equal and consistent treatment for similar cases in respect of Māori and other property rights.

We know from this legislation that there are two areas of discrimination, which I will briefly mention. The first is that the proposal to put in place public access applies only to those areas where there is, or could be, customary title. It does not apply to the more than 12,000 private freehold titles in the foreshore and seabed. That itself is an explicit act of racial discrimination against Māori and against the Māori forms of title and land management.

HodgsonHon Pete Hodgson Link to this

Which way would you fix it, Metiria?

TureiMETIRIA TUREI Link to this

The member asks whether that should be the case. If there is to be a principle of public access to the foreshore and seabed, then, yes, it should apply equally, regardless of the title. If there is to be some other consideration of the treatment of public access, then let us consider that, but if the principle is—

HodgsonHon Pete Hodgson Link to this

Including Port Otago?

TureiMETIRIA TUREI Link to this

Well, that raises the question, does it not? It raises the question of what we do then with the kinds of titles that councils might have, or ports might have, or other forms of industry. It might be that we could have a process that considers things like the safety of the public in those areas and the particular use of those areas. But if we do not have the basic principle that public access to the foreshore and seabed should apply equally everywhere, and then look more carefully at only those areas where it should not, for particular reasons, what we have is discrimination in law—racial discrimination in law. That is what this bill is doing. It is putting racial discrimination into law, because it does not consider issues of safety, and it does not look at the kinds of ownership of the 12,500 freehold titles that there are on the foreshore and seabed; it is very blunt and very broad. It applies only to whether there are freehold titles. Freehold titles are protected from the principle of public access, which does not have to be provided, but customary title held by Māori is treated as a secondary form, as a lesser form, of title and is therefore subject to public access considerations. That is discrimination.

Another area of discrimination was raised in the Māori Affairs Committee, which is referred to obliquely in the preamble. It is related to when the Government can remove the rights of a person over his or her land. In normal circumstances, if one has freehold title and the Government wants to take that land for some form of infrastructure that it considers important, the process is worked through under the Public Works Act. There is a process for looking at the value of that land and it is a fairly straightforward, clear process for those who have freehold title. But if iwi, hapū, or whānau were to have customary title in a piece of land and the Government decided that it needed that land to build a road or a water pipeline through it, the Public Works Act would not apply. In fact, they would have to negotiate with the Crown and the Crown gets to decide, on its own, effectively, whether any compensation would be paid at all for the acquisition of that land and, therefore, for the interruption of the rights of that whānau or hapū or iwi over that land.

Again, we have here the treatment of customary title as a secondary, lesser form of title that does not have the same rights as private title and is not treated or valued the same by the Crown or by other agencies. If the Crown wants our customary title land, it can go and get it, and it does not have to give us compensation. It is entirely up to the Crown to decide whether it will do it. That is not the case if one has freehold title. It is another form of racial discrimination in this legislation for no reason, for no justification, at all. There is no reason why we cannot have the same principles for the use of land for important Government infrastructure to apply to freehold titles and to customary title, as well.

These are details beyond the principle, and Parliament is well aware of the Green Party’s opposition to this legislation on principle, but if we also look through the details we see that it just gets worse and worse. It is these details of discrimination that show how much of a failure the Māori Party - National negotiations have been over trying to resolve the inherent injustices that were put in place by New Zealand First and Labour in 2004. Those inherent injustices remain. The failed principles are still in place in this legislation, and the failed details are still in place in this legislation, just as they were in 2004. It is a great disappointment.

The preamble sets out the history. The history is a lot dirtier, in my view, than these four recitals make clear. The preamble is very broad in the way that it discusses the issues. It tries to give the 2004 legislation a worse record than this one, which of course is not true, because they are effectively exactly the same. They effectively do exactly the same thing; they have simply been negotiated between different parties.

It is a real disappointment to know that Māori MPs from across the House, particularly from the Māori Party and National, will be supporting legislation that has at least two—and there will be more—clear examples of racial discrimination against Māori, against customary title, and against tikanga Māori, and that this legislation will be put into law in just a few days’ time.

BoscawenHon JOHN BOSCAWEN (Deputy Leader—ACT) Link to this

The ACT Party strongly opposes this legislation in the same way that the ACT Party opposed the Foreshore and Seabed Act 2004. In fact, the ACT Party is the only party that has had a consistent policy, a policy based entirely on principle, in its opposition to the provisions of this bill. The ACT Party over the next 2 or 3 days, with your support, Mr Chairperson, will take the opportunity to put its arguments out into the public domain and to repeat those arguments, because they are powerful arguments. They are arguments that have been ignored by the Government and they need to be understood by all New Zealanders.

Let me comment very briefly on the speech made by the Leader of the Opposition, who commented on the preamble. He said that the Prime Minister promised that this bill would not proceed unless it had widespread support. We in this Chamber know today that this bill does not have widespread support. The suggestion that it has widespread support is an absolute fiction. The preamble sets out the history of this bill and of how we got to this stage. As the Attorney-General, the Hon Chris Finlayson, points out, it started with the decision in the Ngāti Apa case in 2003. The name Ngāti Apa is bandied around the Chamber. Most of the members of this House would know some of the background, but probably few members of the New Zealand public would know it. In the Ngāti Apa decision we had nine iwi from the upper South Island—

BoscawenHon JOHN BOSCAWEN Link to this

I am told it was eight. I am happy to be corrected on points of fact, but it was more than just one iwi. It was more than just Ngāti Apa iwi; there were eight iwi. The eight brought a case asking for recognition of what they said their customary rights were to parts of the seabed of the Marlborough Sounds. Ngāti Apa was just one of those iwi—just one of those eight iwi. If you like, they have lent their name to this case, which is now etched in the memories and the history of the debate on this bill.

They brought a case that went all the way to the Court of Appeal. The Court of Appeal accepted their claim to the extent that they were seeking to have their case heard in the Māori Land Court, which had previously been denied to them. The right to bring their claim had been denied to them in the High Court. The High Court acted on a decision of the Court of Appeal in 1963—the Ninety Mile Beach decision. It was expected that the Court of Appeal, when it heard this case in 2002, would follow the decision in 1963, but it did not, to the surprise of all, including, I suspect, the Prime Minister and the deputy leader of the Government of the time. The Court of Appeal decided that Ngāti Apa and the other seven iwi were entitled to go to court.

It is very important to understand what the court decided and what it did not decide. That is the crux of this issue. The court did not decide that Ngāti Apa and the other seven iwi had customary title to the seabed and foreshore—it did not say that. There was a widespread misrepresentation or misunderstanding of that decision. The decision did not say that. What the Court of Appeal said was that Ngāti Apa had the right to go to court—the right to go to court. That is a right that the ACT Party has consistently spoken up for and defended ever since the decision was brought down by Justice Sian Elias and her four colleagues in 2003—the right to go to court.

When the previous Labour Government announced within 36 hours of that decision that it would pass legislation to take away that right, or, certainly, to severely restrict it, the ACT Party opposed it. We know the background. We know that Tariana Turia gave up her ministerial position in the Labour Government, stood in a by-election, and formed the Māori Party. It is important to understand that that decision said that iwi have the right to go to court and nothing more. In fact, if it did say anything more, what the judges said was that it was a very, very high test—a very, very high test to award customary title.

I carry on to the next recital of the preamble, recital (2). It talks about the bitterness and the difficulty that the passing of that legislation in 2003 created. As a consequence, when National was elected into Government it formed a confidence and supply agreement with the Māori Party. The National Government agreed with the Māori Party to review the Foreshore and Seabed Act. As the Attorney-General says, and as is laid out in recital (3) of the preamble, the ministerial review panel recommended that the Act should be scrapped and replaced. Following that we had this document here, which was produced by the office of the Hon Christopher Finlayson. It is called “Reviewing the Foreshore and Seabed Act”. It is a very concise document. I recommend to anyone who has followed this issue to read what this document says. I am sure it can be downloaded from the internet—I presume it can be.

The interesting thing about this document is that the Attorney-General announced his decision to call this review, to publish this review, the week before Easter 2009, and he announced that he was closing submissions on 30 April. That allowed only 4 weeks for the people of New Zealand to digest this document, to understand the history, and to make their submissions. What we now know is that 1,500 organisations made a submission on it. I say that we now know that, but we did not know that in May, we did not know that in June of last year, we did not know it even in July or in August, because when the Attorney-General was asked to release the submissions that were made on the document he refused to do so, he continually refused to do so, and it was not until an Official Information Act request was lodged that he reluctantly released those submissions late last year. What do we know? We know that 90 percent of the people who made submissions on this document oppose what the Government proposes. The Government set out four options. It was very clear from reading this document that option four, the Government’s proposed option, was opposed by 90 percent of submitters.

We come now to recital (3) of preamble, which refers to the bill. The process of the bill passing through this Parliament has been an absolute disgrace—an absolute disgrace. I sat as a member of the Māori Affairs Committee, which travelled around New Zealand hearing submissions on this bill. I was supported by my colleague Hilary Calvert. The select committee heard submissions on this bill in Whangarei, in Auckland, in Tauranga, in Wellington, in Blenheim, and in Christchurch.

HenareHon Tau Henare Link to this

Hilary Calvert was there most of the time, not John Boscawen.

BoscawenHon JOHN BOSCAWEN Link to this

I am very happy to respond to the taunts of Mr Tau Henare. He was the chair of that committee, and, clearly, he has a very bad memory. I attended the sittings in Whangarei, in Auckland, in Wellington, and in Blenheim. Hilary Calvert also attended hearings in Tauranga, in Christchurch, and in Auckland. The ACT Party was represented. We listened to the people. I say on behalf of my colleague Hilary Calvert, who will speak on the preamble later in this debate if the Chair gives her the call, that we were absolutely shocked at the way that some of the submitters were treated by the select committee. They were treated discourteously. People of New Zealand come along, they get involved in the parliamentary process, they make submissions, but they do not come along expecting to be abused, to be spoken down to, and to be called liars.

What came out of that select committee? There were 4,500, or was it 5,000, submissions. What we do know is that an overwhelming number of submissions on the bill strongly opposed it. Now we come to the farce—the absolute farce—with which the members of the select committee considered those 4,500 submissions. They met together on the first afternoon that Parliament sat this year and considered a 520-page report—520 pages—in less than 2 hours. They wrote a report the following day, the report of the majority, which was one page—one page. They summarised this issue in one page. Attached to that page were 40 pages of recommended changes.

ParkerHon DAVID PARKER (Labour) Link to this

I would say that the most noticeable thing about the preamble is what it does not include in the selected history that it chooses to include, but before I go into some of those omissions in the preamble, I will respond to something Metiria Turei said, which was that the bill is discriminatory because it protects existing Māori and freehold titles. I disagree with this bill, I do not think it should proceed, and I do not think that it will provide an enduring settlement, but I disagree with her assertion that it is discriminatory of Māori or of non-Māori in that way. I also disagree with her implied assertion that the common law right to a customary title would prevail over an existing freehold title that has been established.

It is absolutely clear from a reading of the Ngāti Apa decision—in my opinion, anyway—that a customary interest would not have been found in an area that was already subject to a freehold title. The tests of control that have been applied in overseas jurisdictions to establish a customary marine title, as it is called in this legislation, are quite high tests and they would be obviated by an instance where someone else has been conferred a title. So we ought to remember that what is in debate here is a common law interest that is unextinguished. There are many actions that can extinguish customary interests, and the conferring on someone of a collective or freehold title would have extinguished customary interests that were inconsistent with that freehold title. I do not think there is any doubt in law about that.

I also note, in respect of the assertion that that is somehow discriminatory against Māori, that a lot of the titles that are being protected by those particular clauses in this legislation are, in fact, Māori titles. They are collective titles, and they are sometimes Māori freehold titles, that extend into the foreshore and seabed area. So rather than this aspect being discriminatory against Māori, or discriminatory against some other group, that same rule actually applies to everyone. In any event, I suggest to Metiria Turei that those areas would not qualify, in any jurisdiction around the world that has looked at these issues, as still having extant unextinguished customary title interests.

I will return to some of the other problems with the preamble. The first recital of the preamble states that the Foreshore and Seabed Act 2004 was enacted partly in response to the Court of Appeal decision. But it does not say that, at the time, the exaggerated rhetoric coming from both sides of the dispute was saying things that were wrong, and was rarking up race relations. I have said in prior parts of this debate—and I do not shirk from saying it again—that that time was a septic time politically, and that race relations were being irresponsibly rarked up by, amongst others, Don Brash, the then leader of the National Party. Bill English was also saying to people that they would not be able to have a barbecue at the beach. When the legislation protected rights of public access, Bill English was saying that people would not be able to have a barbecue at the beach. Gerry Brownlee was the third person who was a leader of those intolerant and incorrect things that were being pushed by the National.

They were three very senior people in the National Party at the time. Don Brash was leader. Was Bill English deputy at the time? I cannot recall. He was National’s finance spokesperson at the time, anyway, I think, and Gerry Brownlee was also in a senior role and had the spokesmanship role for Māori affairs at the time, on behalf of the National Party then in Opposition. They rarked up that legislation, and they said inaccurate things about the effect of the Foreshore and Seabed Act. There was also Hone Harawira—and I have said this previously to Hone Harawira, who in my opinion also misrepresented the Ngāti Apa decision—who said that the effect of the Ngāti Apa decision was that Māori owned the foreshore and seabed around New Zealand. At times he gave the impression to New Zealanders that that was true in respect of the foreshore and seabed around the whole of New Zealand, and that the rights that the Ngāti Apa decision found in respect of Māoridom were tantamount to freehold property rights. But that was wrong too and it was one of the things that drove the fearful response from some of the red-necked reactionaries in New Zealand, who thought “Hell! I can’t live with that.” Well, they did not need to live with that, because that was never true, either.

Those two things are omitted from the preamble, but they ought to be there because they are very relevant to where we got to in that Act. The Act was not perfect, and I agree with the special rapporteur from the United Nations that the greatest problem with the Foreshore and Seabed Act was not that it declined a right of people to go to court to prove they had an unextinguished customary interest, which is what we are now calling a customary marine title, but what we called under the Act a territorial customary right. It was not that people could not go to court to establish that that right existed prior to the Foreshore and Seabed Act, the problem was that people could not get recognition of it at court, and they were flicked back to a negotiation with the Crown. That effectively left people—and I agree with John Boscawen on this—at risk of grace-and-favour agreements with a future Government to have their property rights recognised. They should not be reliant upon a future negotiation with the Crown for that. If the right exists, and the court finds that it exists, then it should be recognised. It should not be a matter of negotiation with the Crown.

It is on that fundamental point that Labour has said that it agrees that the existing Act needs to be changed. That could easily be done by way of amendment. It could have been done by way of amendment to the existing Act, and we would have preferred that. We could go along with repeal and replacement legislation if it were of that limited effect. But, of course, that is not the effect of this legislation.

In the short time I have for the remainder of this turn, I will take up the issue of the process that has been adopted. We heard the Attorney-General, who is in the chair, say that the prior process for the Foreshore and Seabed Act 2004 had been rushed. In fact, the legislation received the Royal assent a year and a half after the Court of Appeal decision in the Ngāti Apa case. There were hearings up and down the country. There were thousands of submissions. The big difference in process was that the Fisheries and Other Sea-related Legislation Committee did its job properly; it was allowed to finish its job properly. It was allowed to properly report to Parliament about what the effect of the legislation was. In aid of that, it had had legal advice from Paul McHugh, a Cambridge professor learned in international common law property rights—customary rights. That select committee had the benefit of that advice, and it reported back to Parliament about the legal effect of the Foreshore and Seabed Act compared with the common law right. In this legislation we do not have the benefit of the Crown’s advice—the advice received from Crown Law—because access to that has been blocked by the Attorney-General. The Attorney-General is entitled to claim privilege and not release that advice, but it was improper of the Māori Affairs Committee to block select committee members from getting legal advice.

We, to this day, do not know how to compare the legal tests with what would have been found at common law if this issue had been back in the courts. That is wrong—that is very, very poor process. We are codifying this test in a way that Māori says is unfair to Māori, and that some non-Māori say is unfair to non-Māori. We have this enduring sore left for New Zealand because we have not properly dealt with the issue in the absence of legal advice. But it is abundantly clear that this matter will not be settled by Parliament. The co-leaders and whip of the Māori Party are saying that the legislation is but a step and that they do not accept that it settles the issue fairly. Hone Harawira, having left the Māori Party, is saying that he does not accept that the settlement is a fair settlement. So for the Government to pretend that this is a full and final settlement of the framework to determine foreshore and seabed claims is wishful thinking and wrong.

The issue about the process was also touched on by Mr Boscawen. There was a 500-page departmental report that raised lots of technical issues—500 pages. I was one of the members of that select committee. I actually like to think I am a reasonably thorough member of select committees, and I try to read my papers. This report was circulated by email on the Friday; it was received in our offices on the Monday—which was the Monday after Waitangi Day—after the weekend, and it was considered by the select committee on that Tuesday afternoon. I, like most members of the committee, received it on the Tuesday morning. I went along to the select committee on the Tuesday afternoon, and the report was pushed through consideration by the National and Māori Party members without any member having read the whole of it. Paul Quinn says that he read the whole of the report; he did not, because even he on that afternoon acknowledged that he had got through only two-thirds of it. I had not had a chance to read it properly.

KateneRAHUI KATENE (Māori Party—Te Tai Tonga) Link to this

I am very proud to stand today as a daughter of Ngāti Apa, Ngāti Kuia, Ngāti Kōata, Ngāti Toa, Ngāti Tama, Te Ātiawa, Rangitāne, and—

KateneRAHUI KATENE Link to this

—no, not Ngāpuhi, thank you—and Ngāti Rārua, all eight iwi of Te Tau Ihu. I am very proud to stand to speak on the preamble of this very significant legislation, the Marine and Coastal Area (Takutai Moana) Bill. I cannot help but to be taken back to 1997, and to think of the courage and vision of all eight iwi from the top of the South Island, from Te Tau Ihu, who went before the Māori Land Court to seek clarification that the foreshore and seabed within the Marlborough Sounds is Māori customary land, as defined in legislation. I remember the historic ruling by Judge Heta Hingston that the Māori Land Court does have jurisdiction to consider whether the foreshore and seabed is Māori customary land.

Today we are proud to have come full circle. It is a history that has taken many dramatic turns. Following Judge Hingston’s ruling, the decision was appealed to the Māori Appellate Court by the Crown and certain other parties, and, as the preamble makes clear, in June 2003 another twist appeared when the Court of Appeal held that the Māori Land Court did indeed have jurisdiction to determine claims of customary ownership. Enter from stage left the previous Labour Government, which, led by Margaret Wilson and Helen Clark, moved in rapid fashion to thrust the Foreshore and Seabed Act 2004 on the nation. We totally endorse the opening comments in this bill’s preamble, which establish the history we all know of the 2004 Act: the condemnation of the Waitangi Tribunal; the United Nations Committee on the Elimination of Racial Discrimination; and the special visit of the United Nations special rapporteur, Rodolfo Stavenhagen. The 2004 Act removed the long-held common law right of Māori to seek customary title in the High Court.

The 2004 Act extinguished customary title; no whānau, hapū, or iwi could seek customary title. The 2004 Act did not make provision for traditional practices or recognise the evolving nature of customary rights. The finding from the Committee on the Elimination of Racial Discrimination that the legislation contained “discriminatory aspects against the Māori, in particular in its extinguishment of the possibility of establishing Māori customary title over the foreshore and seabed” was an indictment on the previous Labour Government, and has provided a key source of concern for tāngata whenua for 7 long years.

Today we welcome a new approach: an approach that takes account of the intrinsic, inherited rights of iwi, hapū, and whānau, derived in accordance with tikanga, and based on their connections with the foreshore and seabed and on the principle of manaakitanga. This key statement in recital (4) of the preamble says so much, and it bears some further explanation. The 2004 Act did not incorporate tikanga in its tests. This bill incorporates tikanga as a key element in the test for customary title, and allows for differences in tikanga from group to group. The 2004 Act extinguished customary title; no whānau, hapū, or iwi could seek customary title. The bill restores the ability for customary title to be recognised, and it does so in a way that honours the intrinsic, inherited rights of iwi, hapū, and whānau.

I want to also draw attention to the concept of manaakitanga, which the Māori Party is very proud of introducing in this bill. The inclusion of manaakitanga as an example of tikanga, which this bill is most concerned with extending protection to, is a very significant achievement of this bill. The only other legislation in which the concept of manaakitanga features is the Central North Island Forests Land Collective Settlement Act 2008 and the Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010. So we are pleased with the important progress that has been achieved with this legislation, and, in particular, with this preamble, which recognises and provides for the interests of whānau, hapū, and iwi, and which gives credence to the principles of manaakitanga. But it does more than that: it recognises the mana tuku iho of whānau in relation to the takutai moana, it recognises the right to participate in conservation processes, and it provides greater certainty for iwi, hapū, and whānau. The bill restores the ability of Māori to seek customary property rights in the High Court. Most important of all, it honours the agreement we have made with our people to repeal the 2004 Act.

This bill is in the House on our initiative. Make no bones about it, this is a Māori Party bill. We have delivered on our word to our members, and we are pleased to stand here in support of the bill.

RirinuiHon MITA RIRINUI (Labour) Link to this

I find it very interesting that different members of the Māori Party have different versions of the history of the Marine and Coastal Area (Takutai Moana) Bill. I have to congratulate my colleague the Hon David Parker—

HenareHon Tau Henare Link to this

That’s not what you called him last week.

RirinuiHon MITA RIRINUI Link to this

—on his speech to the Committee this afternoon.

We are talking about the preamble to the bill, in terms of its history, but in doing that we have to be mindful of matters that were raised throughout the select committee process but are not actually covered in the preamble. I heard the interjection from the Hon Tau Henare, and I wonder at what point he will take a call and explain to the Committee what instructions he had to drive this legislation through the Māori Affairs Committee and to not take into account the views of the submitters. I was part of the process, as I was part of the process in 2003 and 2004, and I have to say that it was an absolute shambles.

HenareHon Tau Henare Link to this

Just like you. You did nothing as well.

RirinuiHon MITA RIRINUI Link to this

I am actually disgusted with the interjections I am hearing from the member across the Chamber in terms of his understanding of the process. If he thinks it was a transparent and open process, he should go back and read the select committee’s report. A lot of the issues raised by the submitters were not actually included in the report. That was because that member went out of his way to shut down any open debate on certain matters. But I am sure he was acting under orders, so I will leave that matter as it rests.

We heard some valuable contributions this afternoon for and against this bill, but it is important that we take into account what the common people were saying about it. They were not interested in the high-flying legal arguments around the customary rights issue. I remind the member from the South Island that any codification of customary rights, as this bill is attempting to do, is actually an extinguishment of those customary rights. Get it clear—the member is a lawyer, I hear.

When we talk to people on the street, the first question they ask is what the bill will deliver in terms of recognition of the customary rights that they have enjoyed since 1840. I have to say that there is a lot of uncertainty around that. There is a lot of uncertainty around it, because a lot of the areas that the Government claims this bill covers are customary rights that they enjoy already. I am quite offended when I hear the member Rahui Katene refer to the collection of shellfish, and the manaakitanga that Māori have for other people. Those principles have never been compromised at any time, in my recollection, apart from the 1991 amendment to the Fisheries Act. So if she wants to talk about the history of this bill, I tell her to go back and look at when customary rights, in terms of shellfish collection or fisheries, were actually extinguished. They were extinguished back then. But that was to our benefit, because the codification of our customary rights in terms of kai moana was very, very clear in that we still have in place certain rights that allow us to practise manaakitanga.

Another thing that annoys me is the way we put up arguments and put the issues before our people. Our people think they will look out the window one day and the takutai moana will be gone. I will give members an example. I visited a group on the weekend at Maketū, and the issue around this particular bill came up. A certain person, out of genuine concern, got to her feet and asked me what was happening about the takutai moana and our kai moana. I told her we were standing on the takutai moana and that it was still here and still ours, and I said we had just had lunch and we had kai moana on the table. I asked what her issue actually was. Her concern was that there was a lot of hype and emotion around this bill, as there was in 2003 and 2004. The concerns raised amongst Māori people were that those rights in terms of customary practices would be extinguished for ever. That is not the case. That was not the case in 2003 and 2004 and it is not the case now.

I make the accusation here in the Chamber that the problem in 2003 and 2004 was that certain people in this House raised expectations about what they could deliver if they formed the Māori Party. They raised expectations about what was possible in terms of taking their issues to the High Court. They raised expectations in terms of what enjoyment they would have in the future in respect of customary practices. In other words, a lot of hypocrisy and misinformation was being flaunted out there amongst Māori people. That misinformation is still out there, and those people expect the Māori Party to deliver to them customary rights and customary title.

Those members forgot to cover the complications Māori will face in the High Court. My colleague David Parker said earlier on that the benchmark is very high in terms of qualifying for the recognition of customary rights under this bill. That may be all very well for the legal fraternity, because, let us face it, they will be involved with litigation for some time to come, and they will be handling applications on behalf of many iwi around the country.

Members are not saying to those iwi that once we get this bill through, the issue is not over. It will never be over; it is just beginning. There are difficulties for iwi who apply for customary title over the takutai moana: they will have to meet the legal costs, and they will have to provide strong evidence about those interests. Māori have never ever had to do that—ever. Since 1840 and pre-1840 they have never had to do that. I want the members to think about that and the sort of situation created for Māori in terms of arguing their case before the High Court. It has never ever had to be done in the past.

The previous Labour Government gave Māori the opportunity to enter into direct negotiations to clarify the nature and extent of their customary rights on the foreshore and seabed, and many of them have taken up the offer. That opportunity has been removed. Neither can Māori go to the Māori Land Court to have a settlement. The Māori Land Court is probably the best court in the land to consider these types of applications for customary interests, because their people are more intricately involved with Māori on a day-to-day basis; a lot of them are community-based people themselves.

It is a shame that we did not have a lot of debate around this particular issue. I concur with my colleagues that the select committee process was rushed. We made that known at the time but there seemed to be little consideration for a longer debate. The Māori Party will have to explain that to our people in the future.

An interesting submission was presented in Tauranga that stated that the select committee process provided the opportunity for us to have a longer debate. Little did the submitter know that it was the opportunity for the Government to shut down the debate. Once this bill came into the House and started to go through the second reading process, that was the end of it. There is no debate after that. That is why the Hon Tau Henare acted on instruction, because the Government wanted to shut down the debate for ever. There is no ongoing debate for Māori in terms of the legal requirements around their customary interests or the nature and extent of their customary interests. Thank you.

DavisKELVIN DAVIS (Labour) Link to this

The preamble of the Marine Coastal Area (Takutai Moana) Bill sets out, basically, its whakapapa. It is important to remember that this all started when Ngāti Apa sought some aquaculture areas way back in the time of the last National Government. The Marlborough Sounds council at the time would not guarantee Ngāti Apa some aquaculture space. Ngāti Apa said that was not fair and it would take the issue to court. It went to court and finally the Court of Appeal in 2003 said that, yes, Ngāti Apa had a case, and might go to court to test for customary title.

Before I move on to other parts of the whakapapa, I want to say that when Māori go to court to test that they have a case they have to be really, really careful. If the court decision is that they do not have any interest in customary title in a particular area, then they basically lose everything. That is a point we all need to realise when we say that Māori are chasing the right to go to court to test for customary title—which I agree with. The point of the matter is we may lose everything if the court says that, no, we do not have a right to customary title in a particular area.

During the select committee process I asked submitters whether they were after the right to go to court. They said yes. I asked whether they would accept the court’s decision if it said they did not have a case for customary title. They said: “Heck no. We’ll fight that. We’ll never lie down. We’ll never give up another inch of seabed.”

DavisKELVIN DAVIS Link to this

The member over there says “Rhetoric!”. That is fine, but I know that the mentality amongst our whānau is that they will not accept the court’s decision if the court says they do not have a case. That is something we as Māori have to be very mindful of—that we may in fact lost everything. That is the risk we take by following this path.

After the Court of Appeal decision the Foreshore and Seabed Bill was drafted. We know that it was controversial, and recital (2) of the preamble to this bill talks about the criticism. The hīkoi led by Hone Harawira was born. It started off up north and marched down to Parliament.

RoyThe CHAIRPERSON (Eric Roy) Link to this

We will permit interjections as long as they are rare and reasonable. We are not going to have yelling contests between other members that are dissociated from the member on his feet. One at a time.

DavisKELVIN DAVIS Link to this

It is interesting that the very issue that gave birth to the Māori Party could also well be its demise. We have seen what has happened to the Māori Party over the last few weeks. One of the key members in forming the Māori Party is now one of the key members in its falling apart. It is very interesting that the Māori Party is in dire straits over this bill. Its members are embarrassed by this whole bill—and I will get on to a few things Rahui Katene said earlier on. The Māori Party formed a coalition with National, and the coalition agreement said that they would address the whole issue of the foreshore and seabed. They had a ministerial review, which was fine, and this new bill was produced.

I and the other members of the Māori Affairs Committee traversed the length and breadth of the country. I think we had 14 hearings in various places around the country and we heard from over 200 submitters. In those submissions there were polar opposite views. Māori in particular said this issue was a property rights and justice issue. On the other hand a number of people, mainly from the Coastal Coalition, said it was a race issue. It was really unfortunate. The truth lies somewhere in between the two extremes, the polar opposite views.

I want to bring up the matter of the select committee process. It is unfair that on the Friday before Waitangi Day we received an email on our BlackBerries containing the 500-page departmental report. But those of us up north for Waitangi Day were meeting, talking, and listening to Māori, and hearing what the issues were for Māori. We spent the whole weekend at Waitangi, and on Monday we had meetings in our electorates. We then travelled down here to Wellington to find the 500-page review on our desks on Tuesday morning. There it is; the Hon Shane Jones is holding one up. We had a couple of hours to read it. It was impossible in that time to read it, to compare it with the bill, to make comparisons, and to really get our heads round it. It was wrong of the Hon Tau Henare, the chair of the select committee, to rush the process through without due deliberation.

It was also unfair and wrong for us to be denied access to legal advice.

HenareHon Tau Henare Link to this

What a cry-baby!

DavisKELVIN DAVIS Link to this

We hear the Hon Tau Henare over there telling me not to be a cry-baby. He says that because he knows that he led—or misled—the process of the select committee. He is embarrassed about that.

I want to go on to something that Rahui Katene brought up. She said this bill is a Māori Party bill. The reason that party was formed was to repeal the Foreshore and Seabed Act, and she is very proud of what she has here. It is interesting that she says it is a Māori Party bill, because I have in my hand a letter from a Māori Party member who attended one of Te Ururoa Flavell’s sideshows when he went around the country trying to convince Māori Party members that the bill was a good thing. He no doubt told them what he wanted them to hear. Te Ururoa was asked who was running the timetable and he said it was National. He was asked who wrote the bill and he said it was National. He was asked whose bill it was and he said it was National’s. The letter says: “It’s not the Māori Party’s bill at all so why the hell vote for it.” This is what—

HenareHon Tau Henare Link to this

What’s his name?

DavisKELVIN DAVIS Link to this

I will scroll to the end. It is Tim Selwyn. He was, I assume, a Māori Party member. He is saying this bill is not a Māori Party bill; it is a National bill. Somewhere between Rahui Katene and Te Ururoa Flavell, that party needs to sort out exactly whose bill it is. Rahui Katene says it is a Māori Party bill and its members are very proud of it. Te Ururoa Flavell turns up to a public meeting and washes his hands of the bill. He is doing a Pontius Pilate. He does not want any part of it. He is saying it is a National bill. I tell those members to sort it out between them, because more confusion is arising from this whole episode.

That is the bones of the whakapapa regarding this bill. It was well explained and well set out by John Boscawen from the ACT Party.

HenareHon Tau Henare Link to this

Oh, you support the ACT Party now.

DavisKELVIN DAVIS Link to this

I agree that it is a bit hard when a Labour Party member and an ACT Party member end up agreeing with each other. I also agree that there were times when I thought the chairperson of the select committee was a bit rough with a number of submitters. I agree with the Hon John Boscawen that when members of the public come to a select committee to express their ideas, they should not be put down, harangued, or harassed in any way. It was a shame that that happened, even though I was blown away by some of the extreme views of a number of the people from the Coastal Coalition who say that this bill is about separatism and apartheid.

JonesHon Shane Jones Link to this

They’re nuts, forget them—National voters.

DavisKELVIN DAVIS Link to this

They are nuts, and I think they need to pull their heads in. Basically, they are so extreme that they are not helpful at all to any part of this debate. Kia ora.

QuinnPAUL QUINN (National) Link to this

I move, That the question be now put.

HarawiraHONE HARAWIRA (Independent—Te Tai Tokerau) Link to this

Tēnā koe, Mr Chairperson, huri rauna kia ora tātou te Whare. First of all, I think we need to put to bed the ridiculous story from the Labour Party that the reason why Labour passed the Foreshore and Seabed Act was that it thought National would do something racist. That would have to be the biggest joke, if it were not so tragic, that I have heard in a long, long time. It was not National that said it would take away the foreshore and seabed; it was Labour. Labour said it would do that, and it went ahead and did it. I think we need to clear that up straight away.

I also thank the Labour Party for allowing me the opportunity to speak on the Marine and Coastal Area (Takutai Moana) Bill during the second reading and, hopefully, for granting me the opportunity to speak on it again in the third reading.

I congratulate the Minister for Treaty of Waitangi Negotiations, Chris Finlayson, on doing a good job on this bill. He has been very enthusiastic and very open. I think he has been willing to travel and willing to listen to people’s views. But I think the real problem for the Minister is that he does not support this bill. He does not support it, because he knows that it does not lead to justice for Māori. The Minister does not support this bill, because he would have dearly loved to provide the opportunity for Māori to gain tupuna title, in terms of the foreshore and seabed. The Minister does not support this bill, because he went around and said to Māori groups, and to the iwi leadership in particular, that if they could not get their foreshore and seabed back through the courts, he would leave the door open for them to come and see him and negotiate the possibility to get their foreshore and seabed back by discussion with him.

Now, something else has happened. That deal was changed, and that was the deal that the Māori Party supported: going to court, and, if not being successful in court, negotiation with the Minister. That deal with the Minister morphed into a deal in Parliament. I understand today that that deal has morphed into nothing. That deal is now completely off the table, and the only deal left is the court deal. The problem here is that the court deal is no deal. Just because the door has been opened to the courtroom, it does not mean to say justice is available to Māori. When the Minister himself says Māori must prove full and exclusive use and occupation of the foreshore and seabed without substantial interruption and according to tikanga, he is setting a test that is so high that no whānau and no hapū can even afford to contemplate going to court. It is as difficult as that to prove. I think Mr Parker raised the notion of local body involvement on the foreshore and seabed, which would negate that ability. Others have mentioned the fact that land was taken illegally, but that does not apply in this situation. It still means that Māori do not have the ability to get the foreshore and seabed back.

I pick up on the comments made by Metiria Turei about the racism implicit in this bill. I understand that people have been concerned about my mentioning the fact that the bill is racist legislation only 15 times in my second reading speech. That is because it is. Unfortunately, it is also because the Minister thinks the bill is racist. The Minister himself does not agree that things should be imposed upon Māori that are not imposed upon others in this country, in terms of the way in which the foreshore and seabed is managed. In terms of the issue about mana—and I see that the word “mana” is used freely in the bill, and in particular in the preamble—I note that in terms of sovereignty, in terms of control of primary minerals, in terms of control of access, and in terms of access to resources, all of those statutory authorities still remain with the Crown. So there is no mana, because those issues are elements of mana. They are still wrapped up in Crown ownership, and that of course is the issue that Māori were fighting against. Although the title has been changed nominally, from Crown ownership to no title, in fact the statutory authority in relation to all of those matters still remains with the Crown.

I have heard often that issues of this nature should have broad support. Clearly, Labour’s Act did not have broad support, but neither does this legislation from the National Government. In fact, this bill does not even have the support of the general Pākehā population, let alone the Māori population in this country. I think that is a concern, or it should be a concern, to the Minister. I know, for example, that this bill is not what Māori people want. In fact, of the 72 submissions that came in on the bill from Māori organisations, whānau, hapū, iwi, marae, and Māori collectives, only one supported this bill. We could hardly say that is broad-based Māori support. This legislation is not even what all of the Māori MPs in this Chamber want. I know that Mr Quinn, for example, does not believe that this bill will achieve what his people would like to see happen in relation to the foreshore and seabed.

QuinnPaul Quinn Link to this

How do you know that?

HarawiraHONE HARAWIRA Link to this

Because the member told me so, just outside the Chamber a few minutes ago. I say thank you very much to Mr Quinn.

I also say this bill is not even what the Māori Party wants. I will quote from one of the co-leaders on this legislation: “If the negotiations had been just, fair, and moral, the outcome would have been different.” I will repeat that, in terms of whether the Māori Party supports this bill. One of the co-leaders said, in her question and answer video on this legislation: “If the negotiations had been just, fair, and moral, the outcome would have been different.” Clearly this bill is unjust, unfair, and immoral. How the Māori Party can say this is its bill, when it is unjust, unfair, and immoral, is beyond me.

For all of those reasons I think we need to consider the proposal that was made by one Moana Jackson. It was a simple proposal that I know the Minister also liked, and I will come to that at the end of my kōrero.

But when the Māori Party said this was its bill, I could not understand why it would say that, when the principle of tupuna title that the Māori Party wanted in the bill was summarily dismissed early in the process. I cannot understand why the Māori Party says this is its bill, when even the Māori Party membership does not support this bill. When the Māori Party says this is its bill, I ask whether it heard the submissions that were submitted to the Māori Affairs Committee that said this bill fails to properly recognise and provide for the mana of hapū and iwi, that it continues the original confiscation via investing in the common space, that it sets the use and occupation tests too high, that it limits the contents of a customary marine title, that it introduces a costly, adversarial, and complicated court process, that it remains discriminatory to Māori, and that it continues to breach Te Tiriti o Waitangi, tikanga Māori, common law principles, and international human rights standards, including the United Nations Declaration on the Rights of Indigenous Peoples.

Moana Jackson suggested a very simple solution to this problem, and it was this: repeal the 2004 Foreshore and Seabed Act, because everybody wants that to occur, including Labour. So if the Minister wants broad support, then there is the answer. We should repeal the 2004 Act and then put a moratorium on the foreshore and seabed, so that Māori can take 2 years to discuss the way that will lead to a solution that achieves broad-based support and still achieves the kinds of principles that are important to Māori in terms of mana, in terms of tikanga Māori, and in terms of kaupapa. E mihi atu ki a koe, Mr Chairman. Thank you very much. Huri noa te Whare, kia ora tātou katoa.

GoodhewJO GOODHEW (Junior Whip—National) Link to this

I move, That the question be now put.

CalvertHILARY CALVERT (ACT) Link to this

Tau Henare was right when he said that I was at many of the select committee hearings on the foreshore and seabed legislation. One of the submissions that I particularly noticed was one made by Business New Zealand on behalf of 76,000 employers and business groups. It talked, in particular, about the preamble. It talked about what the Marine and Coastal Area (Takutai Moana) Bill is all about, and it said that it was there for six reasons: to uphold and protect property rights; to be consistent with the Treaty of Waitangi and relevant common law; to bring legal clarity and certainty; to facilitate economic development for Māori and non-Māori; to integrate with other relevant legislation, including the Resource Management Act; and to satisfy overall justice and fairness, including appeal rights and remedies.

As has been mentioned earlier, the Prime Minister has said that unless this bill had widespread support he would not be supporting it. Those 76,000 businesses and organisations looked at these six criteria, thinking that these were the six things that this bill should be doing, and said that this bill breaches all six of them. The first reason for the proposed legislation was to uphold and protect property rights, and Business New Zealand said a variety of things, but at the end it said that the substitute rights that the proposed legislation would create bear no comparison to the property rights assured by the Treaty of Waitangi, and even the highest category proposed, the customary marine title, would restrict iwi and hapū to blocking the proposal of others as the main way to extract tangible returns, rather than allowing them to gain full benefit of recognised orthodox property rights.

When Business New Zealand talked about whether the proposed legislation would be consistent with the Treaty of Waitangi and relevant common law, it said: “The Bill is inconsistent with common law in promoting a special status of common marine and coastal area that is contrary to the common law doctrine of eminent domain under which the absolute ownership of all land lies with the Crown.” It said: “Giving away the common law doctrine of eminent domain in relation to the marine and coastal area would leave nowhere for any currently freehold land to revert to should it not be possible to find someone to whom private ownership could pass. This could result in neglected, decaying and dangerous structures for which there would be no-one to take responsibility. The Bill expressly denies exclusivity of use of areas under the interests created for iwi, except where reclamations are completed”.

When looking at whether the bill creates legal clarity and certainty, Business New Zealand said that the exclusion of freehold land in defined areas would mean that land can become part of the common area by, for example, erosion, and by contrast land that moves beyond the line of mean high-water springs reverts to Crown ownership. “Crown ownership of minerals (other than those designated as the property of the Crown) continues until any such are found within a customary marine title group area. At that point Crown ownership ceases and ownership moves to the relevant iwi group.” Importantly, Business New Zealand said: “Rather than promoting legal clarity and certainty, the exceptions cited above demonstrate the uncertainty and complexity contained in the proposed legislation.” That is uncertainty and complexity in so far as it could facilitate economic development for Māori and non-Māōri. It said: “This approach would also take no account of the time effect of transactions and the ongoing refinement of terms and conditions to suit particular prospective buyers and sellers. For example, a falling market might mean the owner had to start afresh when a price moved above market, to ensure a sale was not ‘more favourable’; on a rising market the opposite would prevail. This level of complexity for what should be a straightforward transaction illustrates the difficulties for economic development that could result from the proposed legislation.”

So it does not satisfy the supporting economic development for Māori. The submission then asked whether the proposed legislation would integrate with other relevant legislation, including the Resource Management Act 1991. Clearly, we will hear a lot more about this later in the bill, but it is Business New Zealand’s view that the bill should integrate with other relevant legislation and it fails to integrate with the Resource Management Act.

As for whether it would satisfy overall justice and fairness, including appeal rights and remedies, legislation of this kind must be balanced, but there must be concern about the differences of interpretation this bill has received, doubtless fostering public confusion. If it became law, many people could perceive the legislation as unfair, particularly in light of the kinds of issues raised in the submission.

On the question of appeal rights, the relationship between applications for recognition by agreement and for recognition by order of the High Court is unclear. With the responsible Minister able to enter into an agreement to recognise a protected customary right, it is not apparent why any group would apply to the High Court for a recognition order. The only reason would seem to be uncertainty whether the Minister would be prepared to grant recognition. And although there can be little concern that favouritism would be a feature of ministerial decision-making, grants of recognition left to the Minister’s discretion would invite accusations of this sort. If recognition was not granted, the further question would arise whether the group involved might then apply to the High Court.

The preamble also describes this legislation as taking into account the intrinsic and inherited rights of whānau, hapū, and iwi derived in accordance with tikanga. Tikanga is an Alice in Wonderland word. It means whatever the Queen—I think it was the Red or White Queen—said it would mean, no more and no less. The preamble goes on to state that “It translates those inherited rights into legal rights and interests”. So we are to believe that this Alice in Wonderland word, a word that can be defined by the person claiming some property in our coastal land, creates legal rights based entirely on the say-so of the claimant. We might just as well ask iwi for a list of what they want and put through a legal transfer. Thank you.

FossCRAIG FOSS (National—Tukituki) Link to this

I move, That the question be now put.

JonesHon SHANE JONES (Labour) Link to this

Ā, kia ora anō tātou. Tēnā koe e te Kaihautū o te Whare mō tēnei wāhanga o ā tātou whiriwhiri i tēnei ahiahi. Ahakoa nō te tonga noa atu koe, ka nui taku hari i whakaritea kia tū ai ahau. He mōhio nōku me pēhea te pūkenga ka puta.

[Salutations once again to us. Thank you for allowing me to speak in this part of our deliberations this afternoon, Mr Chairman. Although you are from the very southern part of the country, I am absolutely pleased that you allowed me to stand. Mind you, I know how eloquent I am.]

Thank you very much, Mr Chair, for providing me with an opportunity to stand and make a contribution on the Marine and Coastal Area (Takutai Moana) Bill. Unfortunately the public thinks that the reasons we are marshalling on why we do not agree with this bill—and I will come to the preamble very soon—are consistent with what the last speaker, Hilary Calvert, just said. No one on this side of the Chamber believes that such an important bundle of rights, traditions, habits, and usages as those caught up in the words tikanga Māori comes from Alice in Wonderland. That was a disgraceful description of the bicultural traditions of this Parliament, and it showed why ACT, after, unfortunately, the passage of this bill, and as we get closer to 26 November, will be written right out of the script. Not a single person will shed a tear when that happens to someone who could make such a provocative, ill-conceived, and very nasty remark about nigh on 15 percent, soon to be 20 percent, of the population. But that will soon pass into history.

The preamble is a rather tight and somewhat parsimonious description of what has happened on this issue. We need to bear in mind that it was hardship that brought this issue to the attention of the former Māori Fisheries Commission, which then became the Treaty of Waitangi Fisheries Commission. Having extended the preamble and given it a greater degree of heritage, the Minister in the chair, the Attorney-General, ought to have included the pivotal role that was played by the Treaty of Waitangi Fisheries Commission, which was, for a short time—a mercifully short period of time—dominated by influences in the south, until it was liberated by those of us in the north. What happened was that marine farming interests were dashed. They will be extinguished, and they would probably be non-existent, if one was to listen to the previous speaker from ACT. That was a very, very jaundiced and uncharitable description of recent Māori history and New Zealand’s economic development history.

The Court of Appeal decision was reflective of a knee-jerk reaction from a High Court judge who took a very narrow and arid approach. That in itself was a reaction against Judge Ken Hingston’s decision, which was called, and is known, amongst the iwi as the Tau Ihu decision. That, in turn, was a reflection of how difficult and unwilling the people who were manning the seats in Tasman and the Tau Ihu area were to the applicants from the Māori tribes of that area towards establishing marine farming interests.

This preamble, unfortunately, does not identify the fact that Labour, when it passed its bill, allocated, in a very sensible fashion, 20 percent of the marine farming interests to ensure that that portion of the grievance was addressed. Of course, as befits parliamentarians such as Phil Heatley, he has just carried on that very good work. The origin of that original deal goes back to Labour, and I think it is very disappointing that between recitals (1) and (2) of the preamble no reference is made to those very useful interventions delivered by our side of the Chamber.

The other thing this preamble ought to have included was reference to the ill-fated decision in the Te Oneroa-a-Tōhe / Ninety Mile Beach case. [Interruption] I am speaking about the preamble. I am endeavouring to educate the member opposite who looks like a kina, and the one who behaves like a hedgehog. If they prove to be disinterested in receiving a brief history lesson, let it to be to the detriment of their descendants and their families, many of whom may need to go to see Ms Bennett, unless they pay more attention. The Te Oneroa-a-Tōhe / Ninety Mile Beach case ought to have been mentioned in the preamble, because had our matua from the very far north had more resources to challenge that decision, the outcome may have been substantially different.

We do not and will not support this bill. We are more than willing to provide Hone Harawira with a suitable level of opportunity to make—[Interruption] I apologise for mistaking a kina and a hedgehog, but after that contribution I do not feel those descriptions were incorrect. I come back to the contributions that our colleague Hone Harawira has made. Unwisely, he attacks Labour, without giving credit for the very sensible ideas that we brought forward to address some of the interests that motivated the claimants. I just hope that he is in the Chamber to cast his vote. Whatever he does, he needs to sort it out with the Green Party, so that the people of Te Tai Tokerau know that, although he has a loud voice, he will actually cast his vote. He needs to bear in mind that the vote that will really count for him will be on 26 November, and it will have a red tinge—but that is another matter.

I come back to the contribution made by the ministerial review panel, which was led by that peerless personage of Te Ao Māori otherwise known as Judge Eddie Durie. However, I did not agree with the interpretations that came out from that review panel. There was one absurd section, and I want it read into Hansard in my abbreviated form, because it shows that perhaps this preamble is lacking an additional bit of history. It had a photo and a ridiculous statement that it was only after the 1940s and 1950s that New Zealanders enjoyed recreating, swimming, cavorting, and doing other things on the seabed and foreshore. That was an absolutely ridiculous statement. From the beginning of the time that families have come here to live, and quite apart from our Māori tūpuna, people have taken for granted that that was their birthright. This bill—unfortunately it is an inescapable outcome—will lead to drama, aggro, and a definite prospect that people thinking they can go ahead and enjoy those interests will be challenged and drawn into drama. The report suggested that such interests in the foreshore and seabed were a very recent innovation. Although that report by Richard Boast, Sir Tīpene’s daughter, Judge Eddie Durie, and I forget whoever else was on the panel, is referred to in the bill, it did not advance matters to such a stage that this bill is demonstrably superior to the contribution that Dr Cullen and Helen Clark made. We will fight that issue, along with the Māori Party, at the next election.

The Māori Party is entitled to say that this is its bill. It is entitled to say that this bill is its remedy, etc. In one sense, it needs to say that, because it promised it would address the dramas associated with our contribution. But it has not described satisfactorily to our people the facts about, when we have our day in court, the narrow and largely unsatisfactory criteria that its people—its supporters—will have to meet. Its supporters are diminishing by the day, and by the hour—not that I want to wish too much ill will towards the Māori Party, because as fate would have it, one or three of its members might survive, and we will address that after 26 November. It is important that those people bear in mind that the threshold and the test that has been established will not satisfy their aspirations. It will lead to a set of expectations inversely related to what this bill can produce, and statute ought not to do that, which is why we will not be agreeing with this bill.

The preamble contains a very sparse and uncharitable description of the role that Labour played and the more positive aspects of that role, but in particular it completely avoids the very ugly, divisive, and quite extraordinarily angry reaction from Don Brash and a host of other National members who are now wildly passing the bill. That has been left out of it, as well. A balanced history would show that prejudice and bigotry flowed from that side of the Chamber. The attempt on this side of the Chamber was to combine notions of fairness and customary rights and to bring balance. That is what we sought to do, but it was a reaction to an almost fascist outburst in the speech at Ōrewa. It is bizarre that the Māori Party would actually want to cuddle up to the Government and to bring the bill to pass.

HenareHon TAU HENARE (National) Link to this

I move, That the question be now put.

Link to this

A party vote was called for on the question,

That the question be now put.

Ayes 62

Noes 59

Motion agreed to.

The question was put that the amendments set out on Supplementary Order Paper 207 in the name of the Hon Christopher Finlayson to the preamble be agreed to.

A party vote was called for on the question,

That the amendments be agreed to.

Ayes 62

Noes 59

Amendments agreed to.

Link to this

A party vote was called for on the question,

That the preamble as amended be agreed to.

Ayes 62

Noes 59

Preamble as amended agreed to.

Part 1 Preliminary provisions

FinlaysonHon CHRISTOPHER FINLAYSON (Attorney-General) Link to this

I will make just a couple of preliminary comments about Part 1 of the Marine and Coastal Area (Takutai Moana) Bill. The part sets out—not surprisingly, given its title—certain preliminary provisions. They outline the purpose of the bill. There is a very important and carefully defined Treaty clause, and clauses that provide some definition of two terms: “accommodated activity” and “deemed accommodated activity”. They are activities that do not fall within the customary marine title permission rights.

There are a number of amendments on the substantive Supplementary Order Paper 207. Clauses 8 and 9 will be moved from Part 1, and it is proposed that they be located within Part 3 before the resource management and conservation permission rights to which they relate. The terms “accommodated activity” and “deemed accommodated activity” have been very carefully refined to ensure that they better reflect the policy intent, and to improve their workability. It is also proposed that the clauses that actually repeal the Foreshore and Seabed Act and restore customary interests—clauses 14 and 15—be moved to immediately after the purpose clause. That is what the Supplementary Order Paper proposes.

There are a couple of other clauses I would not mind just briefly referring to. Clause 6 is an important clause. In the course of a number of submissions that were made to the Māori Affairs Committee, as I understand it, and also in the course of a number of written submissions, hellfire and brimstone have been aired to the effect that if this legislation passes, New Zealand’s sovereignty will somehow be diminished. Of course, that is to address the very point that the Court of Appeal said was mistaken: to conflate the concepts of ownership and sovereignty. On 6 February 1840, when the Treaty of Waitangi was signed, the British Crown assumed sovereignty of Aotearoa New Zealand. But at that time existing indigenous property rights continued to exist. In other words, the assumption of sovereignty did not undermine those ownership rights. Time and time again, when I have been speaking on this bill over the last period—more particularly, in the last couple of weeks—people in the audience have got up and raised those matters with me. I have had to say to them that ownership and sovereignty are two different concepts. Clause 6 deals with that issue, and the Supplementary Order Paper redrafts it, not to alter anything substantively but to set it out more clearly.

Clause 7 is the interpretation clause. A couple of points are worth making here. The first point deals with the definition of the “common marine and coastal area”. Paragraph (a) refers to those parts that are held in fee simple. Specified freehold land located in the area will not be included in the common marine and coastal area. I thought the position was very well articulated by the Hon David Parker, in response to the Green Party member’s speech that nothing is to be gained by essentially indulging in a confiscation of land held in freehold title. It is important for the member of the Green Party Metiria Turei, who says she adopts a beautiful, pure approach to these matters, to understand that the effect of what she is seeking would be to remove and put into the customary marine title area general land owned by Pākehā, general land owned by Māori, and also customary land. I do not think that is particularly wise, and we will not go there. We will not confiscate Māori customary land from Māori, nor will we confiscate general land that they may own.

I will just say something about paragraph (c) of the definition of the “common marine and coastal area”, which deals with the bed of Te Whaanga Lagoon in the Chatham Islands, because there is some interesting background to that issue. The Waitangi Tribunal’s report of 2001 deals with the position of Ngāti Mutunga and Moriori claims in the Chatham Islands. The tribunal found that the lagoon should be vested in a body that was representative both of Ngāti Mutunga and of Moriori. In fact, Ngāti Mutunga had lodged a case in 1993, contesting the tribunal’s findings. They viewed the lagoon as their Māori customary land. The Māori Land Court adjourned the case for the tribunal’s hearing of the Ngāti Apa case. So rather than put the lagoon into the common marine and coastal area, we have specifically excluded it at this stage. If it is put into the common marine and coastal area, it cannot be used in a Treaty settlement. It is my fervent hope that, at a point in the not too distant future, we will be able to enter into negotiations both with Ngāti Mutunga and with Moriori, and achieve a settlement that will deal with this lagoon. The lagoon should never have been put into Crown ownership in 2004. It is important that it not be moved across to the common marine and coastal area now, so that it can be used in a Treaty settlement.

The other definitions are very technical, and I do not think that I need to take the time of the Committee in order to deal with them.

TureiMETIRIA TUREI (Co-Leader—Green) Link to this

It is really unfortunate that the Minister for Treaty of Waitangi Negotiations is prepared to deliberately misinterpret the issues, particularly on the question of equitable treatment under the law for private title and customary title. The argument is—and it was upheld by the United Nations Committee on the Elimination of Racial Discrimination and by the ministerial review panel that looked at the issue—that there be equitable treatment of Māori forms of title and other forms of title.

It is not a question of whether there should be confiscation of private title. The question is if we are going to have a principle of public access—I do not know how David Parker managed to completely misunderstand this point—then there is no justification for saying the principle should apply only to some forms of title and not to others. If we want to protect things like public safety, for example, or the environmental values of particularly sensitive areas, or if there is some rational, logical reason why public access to particular land should not be provided, then one can set out criteria and ways of managing those decisions. But the title of the land should be irrelevant to whether the principle applies. The principle should apply in accordance with the needs of the public and issues pertaining to that particular land, which are things like environmental sensibility, rāhui, particular kinds of use, and public safety.

The issue for the Greens and for Māori—on this issue we have consistently spoken for Māori—is equitable treatment under the law, and the right for customary title and Māori forms of tikanga title to be treated equitably by legislation. That was not the case with the 2004 law. It is not the case with this Marine and Coastal Area (Takutai Moana) Bill, because the principles of, for example, public access apply differently to different forms of title. I wanted to clear that matter up. It does not matter how much other people try to misinterpret that issue; that is the clear, principled position on the issue of public access, for example.

I have an amendment to delete clause 9 in Part 1. It is related to clause 8 but that is OK. As I said in an earlier call, the issue is about accommodated activities, which are activities of Government agencies and Crown entities, public works, and various kinds of things like that that could occur, or are occurring, on customary marine title land. The bill has all these definitions of people who can have these kinds of activities and the kinds of activities they can be, and if they impact on customary marine title land, the Minister effectively has the right to use, take, or acquire that land, or to damage it, if the Minister chooses, and then to enter into negotiation with the holders of that customary marine title about what compensation might be available. I want to go through the legislation, because it is a technical point but it is important. Again, it is one of the discriminatory aspects of the bill that show that Māori title is being treated differently from other kinds of title, and one of the reasons why the bill is considered to be discriminatory in ethnic terms.

Clause 8 sets out the kinds of things that can be considered to be part of an accommodated activity. They include renewing an existing resource consent, upgrading existing structures, the replacement or relocation of existing structures or infrastructure, and dredging, which is a major issue for Māori in coastal areas. Dredging is one of those activities. That could mean things like using a coastal marine area as a dump for the discharge of sewage. If a council wanted to use a particular area of land as a discharge point for sewage, for example, in emergency situations, then under this legislation there is a capacity for the council to make an application to use someone’s customary marine area as a dump for sewage.

Clause 8 also describes who might be able to make such an application for a deemed activity, an emergency activity, an accommodated activity, and the list is the Crown, any Crown entity, a network utility operator within the meaning of the Resource Management Act, an electricity generator, a port company, Maritime New Zealand, and the Auckland Regional Transport Authority. So the possible organisations that could seek to use the customary marine land of an iwi or hapū for this purpose are very broad and the powers are very significant.

Clause 9 talks about a “deemed accommodated activity”, which appears to be an extension. One of the activities listed in clause 9 is prospecting, exploration, mining operations, or other forms of mining under the Crown Minerals Act. Of course, mining in general is sensitive, but marine mining is a particularly sensitive issue for Māori at the moment. There have been numerous claims to the Waitangi Tribunal dealing with the right of Māori to have some say over what happens in their coastal areas, their rohe, around mining applications. They have been upheld by the Waitangi Tribunal but denied consistently by the Crown. This bill again gives to others, to Crown entities or their agents, the right to make application to use Māori customary marine areas for the purposes of mining and mineral mining.

Schedule 1 talks about what happens to an application to undertake that activity in a customary marine area. Clause 8 of Part 1 of schedule 1 states that the Minister must consider the application and any information provided by the customary marine title holders, and must decide whether to waive the customary marine title holder’s permission right, whether there are any other affected rights, and whether to provide compensation—whether to provide compensation. So the Minister makes the ultimate decision. If a company wants to go on to Māori-held customary marine area land and undertake mining activities on that land contrary to the wishes of the holder of the title to that area, then the Minister can provide for it and agree to it. Additionally, the Minister can decide whether to provide compensation for loss of the use of, or damage to, that land. So the holders of a customary marine title are completely beholden to the intentions and desires of the Minister as to whether their land is able to be used by them freely, whether some other group can use that land for something that it considers to be more important than the wishes of the iwi or hapū who hold that land, and whether they are considered important enough to be given any kind of financial compensation for its loss.

The Green Party again says that if we are to treat land equitably, regardless of the title of the land, then we must have the same laws apply. For freehold land, that law is the Public Works Act, which has a system for the provision of compensation. Compensation is not negotiable under the Public Works Act, but it is negotiable when it comes to Māori tikanga title. It is negotiable, because, according to the Government—the Māori Party and National—if Māori hold title in an area of land, it is not as important as anybody else’s title. That title can be taken from them for somebody else’s economic use or deliberate destruction for their own purposes, and the Government can decide that it is not worth anything and not give Māori compensation. That is what these provisions in this bill do. That is how this bill is discriminatory against Māori and against Māori forms of title. It is grossly inappropriate that the process for the use of land that is, in effect, supposed to be treated like private land is so different from the process for other kinds of land. It is not appropriate to have such discriminatory, racist provisions in this legislation.

The Green Party is opposed to them and we have put forward our amendment to take them out. I understand that Labour has a similar amendment to remove those clauses. We will be supporting that amendment if it comes up first, and we certainly hope Labour will support ours if it comes up first. There is no justification for treating these two different kinds of title differently.

ParkerHon DAVID PARKER (Labour) Link to this

I will just respond to Metiria Turei’s comments that I lacked an understanding as to why the Marine and Coastal Area (Takutai Moana) Bill is discriminatory in respect of protecting existing freehold title. The point I was making is that those areas that are in freehold title would not qualify as areas where there are unextinguished customary rights, and therefore the issue does not arise.

I do agree with the second point that Metiria Turei made. That is that if there are extant customary title interests in the foreshore and seabed, and they are subsequently overridden in favour of some public project or some private project like mining, then there ought to be fair compensation for the loss of the right that has been found to exist. That is one of the issues that we raised at the Māori Affairs Committee and on which the select committee, because it ran such a poor process, did not even report to the House. That issue was of concern to the Green Party, Labour, the Māori Party, and others, including ACT, when they saw that effectively we could be saying there is an existing customary interest in the foreshore and seabed area that is properly recognised under this legislation, and that it could be taken away at some future time, and that the compensation, if anything, for taking away that right would be at the grace and favour of a future Government, rather than a right at law as exists under the Public Works Act where a public work takes away some other property rights. That is an example of where I do agree with the Green Party that it is bad law. We have an amendment on the floor of the House to remove those provisions so that it is not of that effect.

I raise another issue that relates to these Part 1 definitions. Part 1 sets out the outline of the Act and states, amongst other things, that we are to codify what is or is not an extant customary interest that should be recognised in a customary marine title. One of the problems that we get ourselves into here is that we have taken it upon ourselves in Parliament to try to codify things that the courts have never had the chance to properly interpret and say what it is that the common law provides for, what is the range of rights that may be existing and the range of rights that may have used to exist—for example, the right to mine for oil and gas, which was clearly abrogated by the nationalisation of that resource back in 1948, I think, although the Attorney-General might be able to correct me as to the date—

ParkerHon DAVID PARKER Link to this

I thank Mr Jones. It was nationalised in the Petroleum Act in 1937, so there is no longer an extant customary interest that would be able to be part of a customary title.

The Government’s attempt to codify these provisions in Part 1 fails for a number of reasons. One is that National in Government, and the Māori Party, said that they were setting out to settle this issue, yet we have the Māori Party through its co-leaders, the Hon Tariana Turia and the Hon Pita Sharples, and its whip, Te Ururoa Flavell, all saying that it is not accepted by them as settling the issue; it is just a first step along the way towards achieving a wider ambition. That shows that the primary ambition of the Government to settle this issue through the codification of the appropriate threshold test for the establishment of a customary title is not achieved, and that is putting aside—and I do not mean to put aside as irrelevant—Hone Harawira’s concerns. His concerns are also relevant in so far as they show that this legislation does not settle the underlying dispute.

What are some of the problems as far as ACT is concerned? ACT, quite rightly, makes the point of asking why it is necessarily correct that having a right of fishing or a right of navigation does not mean that one cannot get a customary title. Someone might want to put that argument in court and that person might be right, because these issues have not been determined either in a New Zealand jurisdiction or in many overseas jurisdictions. ACT is right in saying that that argument might be relevant and that it ought to be listened to by the court. Conversely, the arguments that some Māori submitters made that the requirement to prove exclusive use and control is too high a threshold test might be right too, but they do not have the opportunity to claim that in court now. They are being stripped of the right to go to court and make those arguments, because the codification of those issues puts them beyond the jurisdiction of the court. The court has to apply the codified tests, rather than determine what the proper tests are for the establishment of a customary marine title.

That, I think, is at the nub of where Labour got to on this. We freely acknowledge that the existing Foreshore and Seabed Act is wrong in that it does not allow people to get a court remedy, but we also went further and said that Parliament has now had two cracks at codifying this and has not done it in a way that settles the issue for New Zealand, because there is no compromise available that the parties from the different sides of the debate can accept. Therefore, the whole thing should be referred back to the courts, preserving public rights of fishing and access and the inalienability of customary interests, and that is really all the legislation needs to do. That is why we have put forward amendments that amend the various provisions in this part to that effect.

I also say in respect of the change to the threshold test that with the absence of legal advice as to the effect of the change of the test, I remain ignorant as to what is the true effect. I will give an example of where this was being spun by the Government to different interest groups to different effect at the select committee. Te Ururoa Flavell was quite rightly concerned that land confiscations that were improper during the period post-colonisation should not mean that a claimant is disentitled from claiming a customary interest in adjacent foreshore and seabed, in his view. He thought that if a claimant went to court and argued that, then he or she might be able to convince the court that those customary interests are extant.

The definition in this bill is changed from the original Act in that the requirement for continuous ownership of contiguous land has been removed. That is no longer a prerequisite to the establishment of a customary interest in adjacent foreshore and seabed. That was interpreted by National members, who were trying to placate the Māori Party, as saying that the very fact that claimants have had their land confiscated does not disentitle them from establishing a customary title, but what those members did not say, and what they never explored, was what the effect was of the provision that one has to prove—I think the words are, and the Minister in the chair, the Attorney-General, can correct me if I am wrong—continuous and exclusive occupation and control of the area of foreshore and seabed itself.

The question then arises that if one does not control the adjacent land and, therefore, people have been free to wander down to the foreshore and seabed, then how can a claimant show that they have exclusive control of the adjacent area of foreshore and seabed? None of these issues have been explored properly at the select committee, because we did not have legal advice, and because the National Government was determined to pull the wool over the eyes of the Māori Party—

QuinnPaul Quinn Link to this

We explored it, David.

ParkerHon DAVID PARKER Link to this

No, those members did not explore that. They asked the question but then they blocked us from getting any legal advice so as to get the answer. That is not exploring it; that is very, very poor process. So the poor old Māori Party is left ignorant of the fact that although it is true that the fact that adjacent land was confiscated is not an absolute bar to proving a foreshore and seabed interest in the adjacent foreshore and seabed, it may well be a de facto bar, given that one will not be able to show exclusive control of the adjacent area of foreshore. I know that, because the Attorney-General has as much as confirmed that to me in discussions that I have had with him. But I have not been able to explore it in a way that gives me the benefit of either Crown legal advice or legal advice to the select committee, because we were blocked from obtaining it.

So we can see why at the end of this process there will be a sense of grievance on the part of Māoridom, who will feel that they have been done over. I do not necessarily agree that their view that the common law test is a lot more generous than that is right, but I can see why they will feel that they have had the effect of this legislation misrepresented to them, and therefore they will have an ongoing sense of grievance and this issue will not be settled. That is why this bill fails the test that the Prime Minister laid out for it right at the start. He said the Government would not proceed with the bill if it did not settle the issue and it did not have broad support. That is but one instance as to why that is not the case.

The consideration in the departmental report of this Part 1 of the bill is some 50 pages long.

StreetHon MARYAN STREET (Labour) Link to this

I am almost at a loss to know where to begin in making a contribution on Part 1 of the terribly flawed Marine and Coastal Area (Takutai Moana) Bill. Not only is the legislation flawed but the process around it is flawed.

I begin with a bit of rebuttal to the earlier ACT speaker Hilary Calvert, even though she was speaking on the preamble. It astonishes me how far the ACT Party can go in offending just about everybody. Its members used to refer to tikanga as mumbo-jumbo. In debate on previous legislation when we have been passing laws about Treaty settlements they have referred to tikanga as mumbo-jumbo. But today we have heard it called Alice-in-Wonderland stuff in relation to this legislation. I am just astonished at how far the ACT Party is prepared to go to offend as many people as possible.

In this legislation—and I come to Part 1, which is the part under discussion at the moment—there is such a divergence of opinion, united only in its opposition to this legislation. It must almost be unprecedented in this Committee. More people disagree with this legislation, from a variety of positions around the country, than agree with it. Sometimes National has wanted to characterise the opposition to this bill as being all ACT members. I dare say ACT wishes it had as many members as that. I have in my in-box, filed under the title “Foreshore and Seabed”, 250-odd emails that oppose this legislation for a variety of reasons.

We come to clause 4 in Part 1 of this bill, which states: “The purpose of this Act is to—(a) establish a durable scheme to ensure the protection of the legitimate interests of all New Zealanders in the marine and coastal area of New Zealand;”. This legislation palpably fails to do that. We have been given assurances that there will be a revisiting of this legislation. I am sorry that the Minister in charge of the bill, the Attorney-General, has been compelled—by others, I suppose—to bring this legislation to the Chamber in this way at this time, when the country’s interests are rightly diverted to Christchurch. He is being compelled to bring this legislation to the Chamber and to persist with it when it will clearly not satisfy a whole range of people and a whole range of interests.

I draw attention to why this scheme will not be durable. I say to the Minister in the chair, the Attorney-General, that I wish this were going to be a durable scheme. Nobody wants a durable scheme more than we do. We got the last legislation wrong in respect of stripping the right to go to court to have claims tested. We got that wrong and we have said so, and we have apologised. That remains on the record. We have also said that we want a durable scheme. We want to establish a durable outcome to ensure the protection of the legitimate interests of all New Zealanders.

MappHon Dr Wayne Mapp Link to this

A durable scheme on your terms, however.

StreetHon MARYAN STREET Link to this

Not on our terms, I say to Mr Mapp, but on mutually agreed terms. This Government will ram this bill through by a margin of 62 to 59. Those were the numbers in the last vote, a few minutes ago. It does not augur well for clause 4 of Part 1. It does not augur well. It is being passed by a margin of three votes. For something as important as this bill—which should be durable, testable, able to withstand criticism, and able to be justified to everybody across the country—three votes is not a sufficient margin by which this legislation should pass. It is too important.

HenareHon Tau Henare Link to this

We’re not listening and we don’t care.

StreetHon MARYAN STREET Link to this

Oh, Mr Henare has just said the magic words “We don’t care.” Mr Henare has just said the magic words. The National Party does not care about the interests of all New Zealanders.

Pita Sharples has said that the Māori Party is not entirely happy with the bill, and neither are iwi leaders or the general public. I will pick up one part of that, which also goes to the question of how durable this legislation or this scheme will be. Not one iwi—not one iwi—around the country supports this legislation. Mark Solomon and the iwi leaders have said that they oppose this legislation. He has said that to me personally. I have heard him say it. Not one iwi around the country supports this legislation.

Let us go to the comments of Te Ururoa Flavell from the Māori Party. He has said that we will be going back. “We will … be looking at it again,” he said publicly, and he said there would be “another time for our people to come back and have another go in the future.”

I say to the Minister that I wish this were a durable scheme. I wish this legislation acted in the interests of all people. But the opposition to this bill comes from right across the political spectrum, from the offensive comments of ACT right through to iwi leaders. It comes from right across the political spectrum. That opposition makes this legislation faulty, fragile, and able to be undermined in a moment. That is what will happen to this bill.

We have an opportunity to get this right. This bill does not need to be rushed. It certainly does not need to be rushed under cover of the Christchurch earthquake. It does not need to be taken at this pace. The select committee process did not need to be aborted in the way that it was. The select committee members did not need to have legal advice denied them. The fact that the Government has Simon Bridges on its side of the select committee does not constitute independent legal advice. It does not constitute independent legal advice.

If one were to look at the departmental report, one could see quite clearly, from page 59, that a number of submitters—

HenareHon Tau Henare Link to this

This member wasn’t even at the select committee.

StreetHon MARYAN STREET Link to this

But I have looked at the report—which some of the members of the select committee might have done well to do—and I can see that a number of submitters were concerned that the bill as it had finally emerged was not the same as the Government’s proposals set out in its consultation document. More time needed to be taken on this, for the integrity of the legislation and for the integrity of the process.

The process is a travesty. The fact that Mr Henare does not care is a travesty. This legislation, which could have had the complete support of this entire Parliament, has been an opportunity lost. I am sorry that it is an opportunity lost, I tell the Minister; it could have been better than this. I am sorry that the Minister has been rolled in this process. It did not need to happen like this, and the select committee process did not need to be impaired and aborted in the way that it has been. What we have here will not deliver the purpose of this Act.

BoscawenHon JOHN BOSCAWEN (Deputy Leader—ACT) Link to this

Thank you, Mr Chair, for the opportunity to speak on this part. My colleagues the Hon Heather Roy and Hilary Calvert also wish to make a contribution. In a short time I will address certain definitions in the Marine and Coastal Area (Takutai Moana) Bill. In particular, I will refer to the definition of “marine and coastal area”, which is set out in clause 7, the definition of “planning document”, which appears later in that clause, the definition of “RMA permission right” and its implications, also set out in clause 7, and the definition and significance of the meaning of “accommodated activity”, which is at the beginning of that clause. But before addressing those very specific provisions of this part I need to make two general comments to put some of these issues in context.

The first thing I will do is acknowledge the contribution earlier in this debate of Rahui Katene. She got up in this Chamber and said she was proud to be a daughter of Ngāti Apa, and went on to list a number of other iwi. And she should be proud—she should be absolutely proud. One has to look no further than the article that appeared in the New Zealand Herald last Wednesday penned by the Hon Pita Sharples and the Hon Tariana Turia, in which they set out the details of this bill and its implications. One has only to read that article to realise how proud Rahui Katene should be and how proud the Māori Party should be. The passing of this bill will be the culmination of many years of activity. And the bill will pass; the Government has told us that it is committed to pushing it through. As Maryan Street has told us, it will pass by the very, very narrow margin of 62 votes to 59. This legislation is a major issue. I do not believe that its full implications are understood by the wider New Zealand population. In fact, I am not even sure they are understood by the media. I urge all New Zealanders, or, certainly, everyone listening to this debate, to go to the online edition of the New Zealand Herald and read the article by Tariana Turia and Pita Sharples that was published last Wednesday.

I will quote two sentences from it. They started by saying that “The new bill acknowledges that ALL coastal iwi have connections to the coast. Their mana tuku iho (inherent authority) entitles them to protect their wahi tapu and to be consulted on conservation and resource-management issues.” The interesting thing about that is it protects the rights of all coastal iwi. Does it protect the rights of all other New Zealanders who are not coastal iwi? Does it protect the rights of all other New Zealanders who have property on the coast? I have travelled up and down the country over the last 6 months, trying to create awareness of this issue, and when I spoke to the Taupō rotary club back in October, I met a gentleman who told me that he can trace his ancestry back to the early 1800s, certainly back to prior to 1840, when the Treaty of Waitangi was signed. His family owns freehold land, and it can trace its ownership back to prior to the Treaty of Waitangi. The family still owns that land today. It has owned it for over 150 years. Under this bill, his interests are not protected. His interests are not protected and his interests are not recognised. The National MPs sit there and shake their heads. All I can say to those National members is that they do not understand the provisions of this bill. Sadly, the implications of not understanding those provisions, and of not reading the many hundreds if not thousands of emails that have come in, will dawn on them far too late.

The second point I will raise before I get down to looking specifically at the implications of the definition of “common marine and coastal area”, the implications of “planning document”, and the implications of “RMA permission right” is about a reference made earlier this afternoon to the Coastal Coalition. Coalition members have been demonised in this debate. They have been accused by Mr Finlayson of spreading misinformation. Mr Finlayson has responded to the Coastal Coalition with a page set out on the Beehive website. All New Zealanders can go to the Beehive website. I imagine that Mr Finlayson is ashamed of what appears on that website. Under the heading “Setting the Record Straight” I read and New Zealanders will read: “You may have heard opponents of the Marine and Coastal Area Bill making inaccurate claims about the legislation. We want to set the record straight.”

I encourage Amy Adams, if she looks at nothing else, to look at this single page. The Attorney-General recognises four specific issues. I could make some points on all four of them, but in the interests of time I will make a point on just one, which relates to Part 1 and the definition of “common marine and coastal area”. The article states that opponents claim that “The bar has been lowered on the qualifying criteria so anyone can apply”—“The bar has been lowered on the qualifying criteria so anyone can apply”. The Attorney-General says that “The most rigorous test is proving uninterrupted and exclusive use and occupation of an area of the common marine and coastal area from 1840 to the present day.” So “The most rigorous test is proving uninterrupted and exclusive use and occupation …” since 1840. “Many areas of New Zealand are not eligible because of this requirement.”

Well, most New Zealanders and, I suspect most National members who will be voting for this bill, would think that was a very tough test. It is a tough test, but it is not actually the test. People do not have to prove that they have had continuous and exclusive occupation, and the reason I say that is that under the very provisions of this bill it is acceptable for people who are not part of the claimant group to have fished in an area, to have boated in an area, and to have navigated through an area, yet the claimant group can say that it has continuously and exclusively occupied that area. That is an absolute fiction; it is a charade to say that we are making the test continuous and exclusive occupation when in actual fact we are not. The tragedy is that members of the public will wake up to that fact. National is punting that they will not wake up to it until after the election on 26 November, but that they will wake up I have no doubt.

Let me turn now to the definition of “marine and coastal area”. As I said earlier, the ACT Party has a number of amendments on this part that we want to speak to. We are proposing amendments, for example, to the definitions in clause 7 of “local authority”, “mana tuku iho”, “mineral”, and “planning document”. Let us look at the definition of “marine and coastal area”. What is the definition of “marine and coastal area” set out in clause 7? The definition states “marine and costal area—(a) means the area that is bounded,—(i) on the landward side, by the line of mean high-water springs; and (ii) on the seaward side, by the outer limits of the territorial sea;”. So the marine and coastal area goes from the high-tide mark to the outer limits of the territorial sea—it goes out 12 miles.

The reason that is important is that the bill provides for a massive transfer of wealth from all New Zealanders to certain select iwi. Under the provisions of this bill it is assumed, in the absence of information to the contrary, that customary title is held in all seabed and foreshore, in all areas of the marine and coastal area. The bill actually states that customary title lies with an iwi claimant, and that it is up to the Government to prove that that is not that case—clause 105 is the significant clause. The reason I raise this issue is it has extreme significance. It has extreme significance for the definition of “marine and coastal area” and, as a consequence, for the definition of “common marine and coastal area”, because under clause 105 it is up to the Crown to prove that customary title does not exist, as opposed to the iwi proving that they have customary title.

Another key definition is the definition of the Resource Management Act permission right.

DavisKELVIN DAVIS (Labour) Link to this

The Marine and Coastal Area (Takutai Moana) Bill is an indictment on the Māori Party. In fact, not only is it an indictment on the Māori Party but also, I suspect, it will be its epitaph. The Māori Party has focused its efforts exclusively on repealing the Foreshore and Seabed Act 2004, and clause 4(2)(a) provides for the repeal of the Foreshore and Seabed Act. That is the one thing on the Māori Party’s list that its members can tick off. It is the one thing on the Māori Party’s list that they can say they have achieved in the 5 years they have been in Parliament.

The reality is that under the Māori Party and National, outcomes for Māori have gone backwards, not forwards. Members of the Māori Party have focused exclusively on the repeal of the Foreshore and Seabed Act to the detriment of issues that really matter to Māori. They do not have a plan for the Māori economy to move forward. We did not need a Native Affairs survey last night to tell us that only 34 percent of Māori actually consider the Foreshore and Seabed Act to be an issue of any significance. The real issues that Māori are interested in are unemployment, the cost of living, the sale of assets, and the rise in GST—things that the Māori Party voted for.

TischThe CHAIRPERSON (Lindsay Tisch) Link to this

Part 1.

DavisKELVIN DAVIS Link to this

I am saying, Mr Chair, that Māori Party members have focused solely on clause 4(2)(a), which repeals the Foreshore and Seabed Act, to the detriment of all the other issues that really mean something to Māori, such as unemployment and the rise in the cost of living.

On clause 4, “Purpose”, Māori Party members also say that they want to establish a durable scheme. This measure will not be durable. They have said already that this bill is just the start, and that every 3 years, come election time, they will focus again on this issue—a bit at a time. This measure is not durable. It is about entrenching Māori in grievance. It is about making sure that Māori always have something to be upset about, and always have something to complain about, so that people will vote for the Māori Party because it is the party of grievance. Māori are better than that. We need to rise above the grievance mentality. We need to rise above it, step above grievance, and actually move on and make real changes in our lives. We need to address unemployment, we need to address the Māori economy, and we need to ease the cost of living for our people.

I heard Hilary Calvert talk about tikanga. She obviously has a problem with the word “tikanga”. The trouble is that Māori do not have a problem with the word “tikanga”. We understand what it means. I get annoyed, and I got annoyed during the Māori Affairs Committee hearings, when people say that tikanga can end up meaning anything. Well, it does not mean anything if one understands the Māori language. If people understand Māori customs and Māori culture, then there is not an issue with the word “tikanga”. It is an issue only for those people who want to exclude themselves from the indigenous culture of New Zealand—they are the ones who have a problem with it. The word “tikanga” is pretty plain and clear to Māori. If the Coastal Coalition, ACT Party members, and anyone else has an issue with the word “tikanga”, I suggest to them that they enrol at their local night classes, if there are any in their community left standing, and learn a little bit about Māori culture, Māori language, and Māori tikanga.

Clause 7 defines the marine and coastal area. The marine and coastal area is “the area that is bounded,—(i) on the landward side, by the line of mean high-water springs;”. What we are talking about is the wet sand—the wet sand. That is what the Māori Party cares most about—wet sand. It does not care about issues that are really facing Māoridom, but it cares about wet sand. We in the Labour Party care more about issues that are really affecting Māori people, and, as I have said, those issues are unemployment, the underachievement of Māori kids, health, and the longevity of Māori lives. As I said, the marine and coastal area is defined in this bill, and it is wet sand that we are talking about.

There were a number of submitters who had not actually read the bill. They came in and they raved about the marine and coastal area. I remember one submitter in Whangarei who told us that this bill was the reason that coastal developments in Northland had basically finished and that there was no more building happening on the coast of Northland. I asked him whether he had read the bill, and he said no. So I said: “Where in the ocean are you going to build your house?” He asked me what I meant and I told him that if he had read the bill he would know that the bill is about the wet sand—everything below the high tide mark.

As I said earlier in the debate on the preamble, there are two extreme polar opposites. A number of people from the Coastal Coalition and that ilk were put up to turn up and criticise this bill without actually having read it. I found that even though I opposed the bill I ended up having to defend the Minister in charge of the bill, Chris Finlayson, from some of the rabid, ill-informed misinformation that was being put out by the members of the Coastal Coalition, such as the fact that coastal developments in Northland had ceased because of this bill. That submitter had obviously misunderstood the issue. He did not understand that the lack of development was due to the lack of an economic plan from the National Government and was not due to this bill.

Planning documents also caused a bit of anxiety for a number of people. They were worried about iwi and hapū planning documents that were going to “change the world as they knew it.” I have a planning document here. It is from Ngāti Hine. It is all about working together cooperatively with regional councils and district councils and it is about working together for the good of everyone. I will read one part of the document. It states: “Te Rūnunga o Ngāti Hine will promote and enhance partnerships between Ngāti Hine, central government and its agencies, and regional and district councils.” This is not about being exclusive or about separate Māori development or apartheid. This is about integrating, cooperating, and establishing relationships. All Ngāti Hine ask is that “the relationships of Ngāti Hine need to be cognisant of our status as tangata whenua, kaitiaki, and Treaty partner.” I ask all those people who are so anti-Māori, anti - planning documents, and anti - everything else where the harm is in what Ngāti Hine is asking. They want to work together with central government, local government, and regional government, and I believe that that is an honourable and great thing for them to seek.

I turn to the definition of “road”. There is the issue of Ninety Mile Beach. Ninety Mile Beach is deemed a road, from what I understand. People cannot drive on Ninety Mile Beach at high tide unless they want to drive at about a 45-degree angle for 60 miles of sand dunes. But when the tide is out all and sundry use that road: tour buses, people going fishing, and people walking their dogs—everybody uses Ninety Mile Beach. I believe that it is deemed a road. So I wonder about the status of Ninety Mile Beach. It was not cleared up in my mind at the select committee whether Ninety Mile Beach is being used as a road, but it is actually part of the coastal common marine area, so I have that issue still wandering around.

In terms of “warden” there is a lot of concern by members of the Coastal Coalition and their ilk that wardens are going to be standing guard over areas of the coast. The bill does not say “Māori wardens”. Māori wardens are normally elderly people in their 70s who stand at the gates of marae and direct people in cars to car-parking areas. I do not think that the word “warden” in this bill means a warden as set out in the Maori Community Development Act. However it is a big stretch for the Coastal Coalition and others to try to make a case that in the dunes of every beach there will be—

GoodhewJO GOODHEW (Junior Whip—National) Link to this

I move, That the question be now put.

JonesHon SHANE JONES (Labour) Link to this

Kia ora anō tātou.

JonesHon SHANE JONES Link to this

Āe. I want to take on board the admonition offered by the Minister in the chair, the Hon Christopher Finlayson, that we focus on Part 1 of the Marine and Coastal Area (Takutai Moana) Bill. I want to direct our attention to pages 10 and 11. I see some complications and I would be interested to get a response from the Minister. I imagine that work is taking place in relation to how High Court judges and indeed lawyers representing the parties in the inevitable litigation will deal with the notion of mana tuku iho and tangata whenua. I am presuming that the High Court is exploring whether it will need additional expertise or whether some of the—dare I use the term—tikanga of the court need to be amended, although I would note that Christian Whata, certainly one of the most able young Māori lawyers of his generation, is about to join that august company.

JonesHon SHANE JONES Link to this

Unfortunately Mr Ririnui, a man of Waiariki origins, did not extend a pō’hiri when he went to the hākari, the feast, for Christian Whata, to me and Kelvin Davis from Ngāpuhi, so that we could continue our peace-loving ways in that part of Aotearoa. However, it is good that Māori High Court judges will be there but I hope that the Minister will take a call on that because although we are full of passion and are making various political points, after this bill eventually finds its way permanently into the landscape of statutory law, someone will actually have to pick it up in 2014, 2015, 2016, and 2017 and make decisions on behalf of groups as to whether they are hapū or iwi.

I direct the Minister’s attention to purpose clause 4(1)(b), which goes to the heart of what this bill is about. The purpose is, according to that paragraph, to recognise an ill-defined mana tuku iho concept exercised by iwi and hapū as tangata whenua. I can assure the Minister, having spent many years along with three other Māori MPs in this Chamber dealing with these issues in a different part of the coastal environment called the fishing industry, that this will be hotly litigated. This will be hotly debated. I imagine that a judge will, at the end of the day, draw on what has been defined as an iwi in the fisheries settlement. If that proves to be the case—and the Minister in the chair is nodding in the right direction—then I think that that is a sensible way to go. But we should not for a moment imagine that that will bring litigation to an end—unfortunately. It is a further example in the bill, and it might be said of any bill, when we endeavour to bring our Māori terminology into the law.

To that score, I do not think it is a bad idea, unlike our friends from the ACT Party. I will not let it pass that they can stand unchallenged and imagine that they will be rewarded for trying to deprecate Māori culture by analogising it to Alice in Wonderland. I want members to know that one of the figures in Alice in Wonderland was a dodo, and that party will go the way of the dodo if it continues to deprecate those members of Māori descent in this Chamber and the passion with which we seek to maintain culture and pass it on to the next generation. So I encourage members of that party and their supporters to think that perhaps the dodos are Muriel Newman and that gaggle of personalities who through viral means are trying to leave us with the impression that the country is overrun by angry rednecks hating Māori language coming into legislation. I cannot help it if they are actually Don Brash’s voters. They were on that side of the Chamber and now they are disappearing elsewhere, but more about the Mad Hatters at a later stage.

I come to clause 6. I have signalled that the High Court, if measures have not been taken, ought to ensure that its tikanga and rules are evolved to deal with these challenging issues, but, more important, that we have the right level of expertise there, because I am a great believer in the inherent jurisdiction of the High Court—and I see it. I have said earlier that it was a bleak day when we left that very vague and ambiguous in our time. I am on record as saying that, so it would be good to know that that is the case. I want to move right along to clause 6. I imagine that the Minister is putting before the Committee a distillation of what will be the responsibilities in international law of the Crown, given that we are going forward with an idea that the actual seabed and foreshore, takutai moana, coastal space, and so on, will not be vested in the Crown as such but will be an open space, a public space—takiwā marea is, off the top of my head, my translation for open and public space.

But I would caution us against providing any opportunity in this bill that allows, quite frankly, for a debate and a legal tussle as to what is the scope of the Crown’s sovereignty, because the logical conclusion is that once we strip away the Crown as being the putative or exclusive owner on behalf of society and we introduce this other notion, it will be challenged in the courts as to what is public space and so on, how far private property rights stretch, even if they are customary associations, customary interests, or perhaps enforceable rights, and how far the notion of a dimension of an unfettered public space actually goes. So I ask for a bit of clarification around those issues, because there is the notion that this bill will turn from a debate about historic associations and residual interests into a debate on whether any subsisting sovereignty elements are in the actual seabed and foreshore legislation other than the ability of a democratically elected Government to regulate. Unfortunately I was not on the Māori Affairs Committee save for one or two meetings and I am not actually apprised of how that was explored by submitters, but it is an important point.

Unlike the lucidity that is evident in my speech, questions on the day from Paul Quinn, who is hollering and who could also be a part of the Alice in Wonderland fairytale, generally bamboozled the submitters. Even when I was there, people wanted to answer his questions, but such was the ambiguity of his questions that he was consistently told by the chair to turituri, to keep quiet. I do not know how well they get along with each other.

I want to now come to the notion of the marine and coastal area. According to the ACT spokesman, there is an assumption that because we have defined the area in question as being out there on the horizon, te pae, and on the mean high-water spring, that somehow this represents an opportunity for muck and gouging. Ambiguity should be addressed. If there is ambiguity, it is reasonable that the Minister should, during the course of our deliberations, say that it is just a simple physical description and that it does not represent an assignment of potential wealth or residual interests that will one day grow from being perhaps a rock or a defined discrete area that a hapū still has, and that then somehow grows further into including all the ironsands off the west coast of Te Ika-a-Māui. Unfortunately, that would be of no good to my iwi because we are on the east coast in the far north, and as a consequence of iwi activists, not the least of whom is Margaret Mutu, our settlement gets further and further away. But that is another matter. I do not mean to be personal in any denigratory way or in any manner of form. I just want it known that I am not motivated when I mention ironsands. But I do think it is a reasonable point. I have my senior colleague here. He and I both have some concerns about these ambiguities because there is a host of changes. If what is at stake is a significant natural resource and is valuable to the overarching interests of the country, then it is good for the Minister to say that, no, it will not actually be lost.

RoyHon HEATHER ROY (ACT) Link to this

It gives me great pleasure to rise and speak to Part 1 of the Marine and Coastal Area (Takutai Moana) Bill. I would like to concentrate on two clauses in this part of the bill. The first is the outline of the Act, which is clause 3 in particular. I think this is also relevant to clause 7, which covers the definition of common marine and coastal area.

Under this bill, the assumption is that iwi and hapū have customary rights over all the common marine and coastal area, unless the Crown can prove otherwise. Of course, this is the new terminology for what we previously knew in the foreshore and seabed legislation, which was debated under the previous Labour Government. Iwi and hapū have customary rights over all common marine and coastal area, unless the Crown can prove otherwise. One of the things that ACT, through all iterations of this debate since the 2004 legislation, has talked about is that everybody who feels they have a genuine ownership bid should be able to have their day in court, so that is relevant to that point. Also, the bill contends that iwi have guardianship ahead of all others. To my mind, the crux of the matter relates to property rights. There were a number of submissions to the Māori Affairs Committee that talked about property rights. That is always the yardstick that I use when we think about how we proceed, how law is put in place, how we deal with things, particularly before the courts, and when the courts should be the decider, if you like, of who has genuine ownership.

I will probably run out of time in this call to talk about property rights, but there are a number of issues that should be considered when we look at the detail of this bill. I think the bill is being justified to Pākehā and the public, generally speaking, largely on the basis of what will happen to the coastline in the future. Of course there are large areas of coastline that should be protected from development and exploitation. I do not think there would be any dissension in the Chamber from that view at all. Reserve status is justified for it, for example, but we should not forget that we have one of the largest coastlines in the world and, alongside that, one of the lowest population densities and a declining economic capacity to maintain First World health, education, and infrastructure systems. Stephen Franks submitted to the select committee that he deplores the absence of any proper defence of genuine property interests in coastal areas, and I have to say that on that point I agree with him.

The bill creates—some would say covertly—a form of exploitation right for some iwi and hapū. Those rights in areas where they can get marine titles can easily be supported, but the circumstances of creation of those titles could simply discredit any kind of status, other than reserve. They do not give their owners the true owner’s stake in preserving the long-term value of their interests. That is something that I think we in this Chamber should be genuinely concerned about. In that respect I welcome the debate that we are having today.

I think the bill is promoted without any proper defence of true property interests for Māori. It might well surprise many of those on the Opposition ranks to hear me talk about that. But the bill removes such interests from local authorities, and even from current lease or licence holders. The bill should have been, I would have thought, for a National Government an opportunity to strengthen true property rights for everybody, all citizens of this country, whether they be Māori or non-Māori.

We should also consider as a general part of this debate why we have property rights, why they are important, and why they are a fundamental grounding of our legal system and what we stand for. Property rights protect minorities against majorities, so that those who have the money, the wealth, and those who have the ability for whatever reason to wield a big stick are not able to do so to the detriment of those who have a genuine property right.

HoromiaHon PAREKURA HOROMIA (Labour—Ikaroa-Rāwhiti) Link to this

E tū atu tēnei e te Kaiwhakahaere o te Whare, hei kōrero atu mō te āhua o te pire nei. E tautokotia atu ngā whakaaro e puta ā-waha a toku hoa nei a Rāwiri Parker me Shane Jones e whakaaro atu mō te āhua o te tikanga mō te takutai moana, e puta atu te whakaaro, e waiho atu mō te Minita anake engari, e whakaaro atu rā tātou mō te haerenga ki te kōti.

Nō reira, he nui atu ngā whakaaro mō te wāhi tahi nei. E tū kaha atu, e puta atu te whakaaro mō te āhua o te tikanga me te ture me te waihotia atu ngā tupuna ki a tātou mō tātou a ngāi Māori nā te mea, i roto i te tuhinga e kī atu wētahi waihotia atu ki ngā kōti nā te mea i roto i a tātou, i reira kē wētahi o ngā iwi mai rā nō e mau tata ana ki te takutai moana, e ora ana te manaaki a ngā hua o Tangaroa, e nui atu te āhua pērā tonu. E whakaaro atu, he aha ai e kī tēnei anake te āhua anake e mau ana mō tēnei tino take. Nō reira, e whakaaro atu mō ngā nekeneke haere mō te ture nei.

E tīmata atu te kōrero e puta ā-waha atu a te Minita nei mō tana whakaaro, mō te whakaae, te kore whakaae mō te ture nei. Nā te tuhinga nei, e wehewehe atu mō ngā whakaaro a wētahi e pīrangi e waihotia atu ki te Minita e whakaaea, kāre e tae atu ki ngā kōti, kāre e tae atu i roto nei o te Whare Miēre. Nō reira, tērā anō te mea i roto i a tātou i konei e wero ana mō tēnei wāhi. Nā, te mate hoki pērā tonu atu te āhua mō wētahi o rātou e tae atu i te kōti. E mau atu te mātauranga mō ngā kaiwhakahaere o te kōti i roto i te ture.

[Mr Chairman, I rise to speak about the nature of this bill. I support the views expressed by my colleague the Hon David Parker, and those expressed by the Hon Shane Jones, relating to tikanga—how it relates to the foreshore, and whether it should be left solely to the Minister. We favour going to court.

I have many comments to make about the foreshore—strong views about tikanga within the law and the legacy left by the ancestors for us, the Māori people, because in this bill, it says that courts can make a ruling. But we are mindful, too, that some tribes have lived close to the foreshore for a long time—nurtured and looked after Tangaroa’s resources at the same time. There are many examples like that. I say, leave it for the courts to determine. Why make this the only real reason for it? So we should really think about the implications of this legislation.

When the Minister began his address, he expressed his view in regard to agreeing or opposing this legislation. Now to some, this bill is divisive because it is left to the discretion of the Minister. He determines whether a settlement goes before the courts, or whether it goes through our parliamentary process. That is another reason why we on this side of the Chamber oppose this. However, those who choose to go to court will also be confronted with a similar situation if their more knowledgable ones give advice to court officials .]

Sitting suspended from 6 p.m. to 7.30 p.m.

HughesHon Darren Hughes Link to this

I raise a point of order, Mr Chairperson. I am sorry to interrupt my colleague; this should not take long. I have not had a chance to consult with the Opposition’s junior whip about the part of the Marine and Coastal Area (Takutai Moana) Bill that we are currently considering. My specific question is, how many Minister’s amendments are there to this particular part?

RoyThe CHAIRPERSON (Eric Roy) Link to this

They are on the Table.

HughesHon Darren Hughes Link to this

Do you know how many there are?

RoyThe CHAIRPERSON (Eric Roy) Link to this

I do not. I have just come here, as you have. They are accessible on the Table.

HughesHon Darren Hughes Link to this

So all the amendments that are available for debate and for the voting on this particular part have been tabled at this time by the Minister?

RoyThe CHAIRPERSON (Eric Roy) Link to this

That is correct. I understand so.

HoromiaHon PAREKURA HOROMIA Link to this

It is interesting to note that the High Court will have a fair bit of sanctioning power, and what certainly needs to be ensured at this early stage is that the judges have the ability to cope with Māori tikanga and understand the nuances of hapū and iwi conflict, important as it is. It is the issue that needs to be broken down. There can possibly be an agreement, but what is more important is that we do not fuel or encourage more conflict amongst the whānau and the hapū. In some parts that wehewehe is something that certainly puts asunder a lot of hard work by people in this building, by people outside, and especially by the whānau, hapū, and iwi. That is of interest.

I want to come back to this issue, because I want to commend the Minister for ensuring clause (3)(2)(a) in Part 1 of the Marine and Coastal Area (Takutai Moana) Bill “sets out the purpose of the Act and acknowledges the importance of the marine and coastal area to all New Zealanders and the customary interests of whānau, hapū, and iwi in that area”. I really commend the Government and encourage it to hold that line, because if one has been an activist and a collector and gatherer of the fruits of the takutai moana, then it is important that there is a sequence that has been well driven and well trodden.

First of all, it starts off with the whānau, the family who go to ruku pūpū, to gather seafood, to make sure that they are replenished and that they feed their families well. The next is hapū, who in a sense try to determine and define boundaries and those issues relevant to that hapū—the collection of those whānau. Last of all is the iwi, who may, in relation to representing the whānau and the hapū, ensure that all those issues that are relevant to working there, or to doing anything with the foreshore and seabed, are recognised and managed well in accordance with the tikanga and with mana. There is inherent clarity in that. Certainly, I commend the Minister on that.

ParkerHon DAVID PARKER (Labour) Link to this

I will deal with a matter that arises from clause 7 that relates to the definition of “common marine and coastal area”. The importance of this definition is that parts of the marine and coastal area, which is also defined in the bill, are subject to claims for customary interests, and they can be made only in areas that are common marine and coastal area within the definition of the bill. Of course, the definition that came to the Māori Affairs Committee is the definition that is still set out in the bill. That is now being amended by Supplementary Order Paper 207 from the Minister in the chair, the Attorney-General, and it changes the definition substantially.

In this regard, I refer the House to a letter from the New Zealand Law Society, dated 7 March. This letter was written on behalf of the Law Society by its president, Jonathan Temm, who is becoming increasingly concerned at the poor processes used by this Government, not just in respect of this bill but also in respect of another bill. Indeed, as we sit here, in another part of this complex today, similar poor process is being adopted in respect of a telecommunications bill. Increasingly, the Law Society is concerned that the effect of this is that we can have bad law and we can make mistakes because we do not allow changes to proposed law to have proper scrutiny. The letter stated: “The Law Society has noted the Māori Affairs Committee by majority is recommending the passage of the Marine and Coastal Area (Takutai Moana) Bill without amendment. The appended list of possible amendments prepared by officials in light of submissions received”—

HenareHon Tau Henare Link to this

What’s wrong with that?

ParkerHon DAVID PARKER Link to this

Mr Henare should listen to the rest of the letter from the Law Society, because there is lots wrong with the process. Paragraph (c) of the letter continues: “Your subsequent public statement that you intend introducing amendments to the bill presumably by way of Supplementary Order Paper on its return to the House”, and “One such amendment will be to require that negotiated agreements concerning customary marine title be given effect through legislation. The society is concerned that the foreshadowed process of introducing significant amendments by way of the SOP procedure will remove the opportunity for pre-legislative scrutiny of these amendments. There are two specific concerns”, and then it notes them. I do not have time to go into them in full, but essentially the letter states that there is not as much public scrutiny of proposed amendments.

QuinnPaul Quinn Link to this

Is that all?

ParkerHon DAVID PARKER Link to this

“Is that all?” is pretty revealing of the attitude of the Government to using proper processes so that we do not make mistakes as to law.

I will give members just one instance, and I have time in this call to develop only the one instance, although there are lots of others that I want the Minister to comment upon. The definition of “common marine and coastal area” in clause 7 as it came to the select committee stated that excluded from the definition of common marine and coastal area was “(b) any area that, immediately before the commencement of Part 2, is both owned by the Crown and also has a status of any of the following kinds:”, and then it listed conservation areas within the Conservation Act, national parks, reserves within the meaning of the Reserves Act, and wildlife management reserves. The Minister has already talked about paragraph (c) of the definition relating to Te Whanga Lagoon in the Chatham Islands, but he has made no reference to the changes being made to paragraph (b) and the reason therefore. I have some questions for the Minister, because I am actually not sure what the import of this amendment is.

I had a call today from someone who said that the effect of this amendment is to exclude from the exclusions areas such as the Hauraki Gulf Marine Park. The Hauraki Gulf Marine Park Act created a marine park that extends from the Firth of Thames out to Little Barrier Island and Great Barrier Island. Those islands no doubt include areas of foreshore, and no doubt there are areas of seabed that are also affected by the Hauraki Gulf Marine Park Act. I would have thought, given that preceding that Act those areas were vested in the Crown, that those areas would be protected under the existing definition that came to the select committee and that those areas would be outside the areas for which there could be claims of customary marine title. Now this has been changed by Supplementary Order Paper 207, it seems, so that those areas—and this is a big area; the whole of the Firth of Thames or a substantial part of it, as I understand it, out to Great Barrier Island and Little Barrier Island—

HenareHon TAU HENARE (National) Link to this

I move, That the question be now put.

DelahuntyCATHERINE DELAHUNTY (Green) Link to this

Tēnā koe, Mr Chair. Tēnā koutou e te Whare. I will address Part 1 of the Marine and Coastal Area (Takutai Moana) Bill, but I would like to give some context. In 2004 my partner and I were the original, token tauiwi who travelled from Tauranga to Wellington with Ngāti Porou led by Tāme Te Maro, and with Ngāti Kahungunu led by Moana Jackson, Ngāhiwi Tomoana, and Mereana Pitman. This uplifting hīkoi joined the rest of Aotearoa on the forecourt of this Parliament to do more than oppose the Labour Government’s legislation. The hīkoi upheld the political and cultural strength of whānau, hapū, and iwi who had travelled together to remind the Government and the rest of the country that their mana whenua status and rights in the realm of the takutai moana had never been superseded, given away, or handed over and that they were, therefore, the last people who needed to prove their relationship. Raupatu was not acceptable that day, and raupatu is not acceptable today.

We sit here now, in 2011, and later we will be arguing over the tests, as another Government wishes to establish the recognition of a tangata whenua right to go to court. Regrettably, the repeal of the original legislation is not the solution, although it is being repealed in this bill tonight. Some are arguing that the bill is a step in the right direction, but restoring due process in a manner that basically maintains basic inequality of access to justice cannot be celebrated.

In terms of Part 1, the purpose of the bill is not, in my view at least, to provide true justice and equity under Te Tiriti o Waitangi, let alone access to the beach for all New Zealanders. Access to the beach for all New Zealanders has never been the purpose of this or the previous legislation. The “haters and wreckers” have never been the hapū katoa asserting their mana whenua. Perhaps the Coastal Coalition might like to consider its responsibilities in the fostering of hate and the wrecking of local community and hapū relationships through its particular and perverse take on this bill.

There are numerous issues to be addressed, from the privileging of private title-holders in another part of this law to the unfair thresholds for establishing so-called customary rights within 6 years. Expressions such as “customary title” and “common space” have been given new and particular definitions, and the courts will no doubt have a field day, at others’ expense, establishing those meanings.

For me, the underlying purpose of the bill is expressed in clause 9. The Crown, under whatever name we choose, wants control of the coastal resources so that it can bargain with multinationals. From Rio Tinto on the western coast to Petrobras in the east, we have proposals for mineral exploration, sand mining, and oil drilling. The Crown does not want to bargain with iwi as well, so it is much tidier for the Crown if it is the decision maker.

The public thinks this bill is about their right to a picnic in the sand, but really it is about the development of undersea and coastal wealth at the expense of the environment and future generations. While we fight over the mirage of public access, the companies are busy working with our own Crown research entities, assessing the opportunity to drill for oil and mine for sand.

On the original hīkoi in 2004 lots of people were acutely predicting the intensification of the coastal prospecting that we see today, and which is being upheld by clause 9. But, as has been said before, we will fight on the beaches. If we go to the East Coast we will find hapū katoa fighting for the right to protect their area from oil drilling, and those hapū see a direct relationship between Part 1 and their rights as mana whenua to protect their land from Petrobras, a particularly unedifying multinational whose history includes many instances of oil-spills. Therefore the rights of the indigenous people of Aotearoa need no proof, but their right to protect the environment alongside other citizens, in terms of their relationship with Tangaroa and Papatūānuku, is in need of our protection.

If we want to look in detail at the way in which the coastal and economic zone has been expanded, we will see a large increase in prospecting and mining rights, which clause 9 absolutely establishes the Crown’s right to maintain its hold over. We will find that many citizens, as well as tangata whenua, are very concerned about that. We can keep talking about access and about the tests, which we will talk about in the debate on Part 2, but, in the end, the tangata whenua do not have to prove anything. They were here first.

What we do need to prove as a country is our capacity to look after our resources and respect people whose kaitiakitanga goes back through generations, and who do not have to prove it. I think what we need to prove is our capability to look after our resources—our vulnerable coastal environment, and our vulnerable communities who want to maintain their mana whenua, rather than having to establish it through a court of law. I am very strongly in favour of the Green Party’s position on this bill. We oppose it.

DavisKELVIN DAVIS (Labour) Link to this

Before the dinner break I was talking about the wardens and the definition of “warden” under clause 7 of the Marine and Coastal Area (Takutai Moana) Bill. I think it is important for the record that we differentiate between the wardens appointed for the purpose of this legislation and wardens appointed under the Maori Community Development Act. The wardens under that Act are good-natured, normally elderly people who stand at the gates of marae to direct traffic. For the purposes of this legislation, wardens basically—

QuinnPaul Quinn Link to this

Discrimination, Kelvin! That’s terrible!

JonesHon Shane Jones Link to this

Rark the wardens up!

DavisKELVIN DAVIS Link to this

I am sorry, but I am having trouble concentrating because of the interjections, not so much from Mr Quinn this time, but more from my own colleague. The wardens will be responsible to a customary marine title group for the following functions: to assist in implementing prohibitions or restrictions, entering wāhi tapu for the purpose of performing their functions, and advising members of the public of any applicable prohibition or restriction.

The question is about how those wardens are to be identified by members of the public, and how the public will know that there will not be any old Tom, Dick, or Hōri turning up and telling them they cannot be in a particular place. That question needs clarification in terms of this bill—exactly what “warden” means. There was hysteria, again from the likes of the Coastal Coalition, that we would have Māori in sunglasses and with baseball bats scaring people off the foreshore and seabed. When we think that this bill probably relates to only 2, 3, or 5 percent of New Zealand’s coastline, and that most of the areas that we are talking about will be relatively isolated, such as around the North Cape, it is pretty unlikely that—and this is just to settle the nerves of the ACT Party and the Coastal Coalition—there will be a big Māori in sunglasses and with a baseball bat standing on the edge of the beach to warn people off.

Members might go to the North Cape, but I doubt whether, in the history of all of Aotearoa New Zealand, more than 2,000 people, over the last two millenniums, have set foot on those beaches. If we left our cars at the road and walked in, it would probably take about 4 or 5 hours to get there. I would say that if any warden was dumb enough to be standing there waiting for somebody to turn up just so that he or she could turn them away, the chances are that that warden would probably be more likely to give them a cup of tea and welcome them to go and have a swim at the beach, just because he or she would want to have some company.

The warden issue needs to be settled. People need to know that we will not have big, burly Māori frightening off everybody. There was another guy, obviously another Coastal Coalition person, who said he was scared that his surf life-saving club would not be able to practise surf life-saving. He said it was the oldest surf life-saving club in the Tauranga area, he had been a surf lifesaver there for 50 years, and now it was ridiculous that, when somebody needed to be rescued from the ocean, the club would have to ring up and ask permission from a warden or somebody like that so that its members could cross over the sand and get to the water. We said: “Mate, have you read the bill?”. The answer was that he had not, or, if he had, he had totally misunderstood it, because if his surf life-saving club had been there for 50 years, there is no way that that beach could be deemed to have been exclusively used by Māori, and he had nothing to worry about.

I want to talk about the wāhi tapu. Again, this issue got the Coastal Coalition’s back up. I cannot think of many areas—in fact, I can think of only one area—underneath the high-tide mark that may be deemed to be a wāhi tapu. It is the resting place at Tākou Bay of the Mātaatua waka. According to our traditions, the Mātaatua came over and settled down in the Whakatāne area somewhere. There was a bit of a ding-dong between a couple of brothers, who were the chiefs on the waka, and our tupuna Puhi—

YoungJONATHAN YOUNG (National—New Plymouth) Link to this

I move, That the question be now put.

CalvertHILARY CALVERT (ACT) Link to this

I will talk about three things in relation to Part 1 of the Marine and Coastal Area (Takutai Moana) Bill. I want to talk about the seabed, airspace, and accommodated activities.

I will start with the seabed. Historical use of the seabed any significant distance from the shore seems impossible to prove, and allowing title to be granted to iwi allows for unjust and potentially divisive future claims. Historically, no one has crawled about on the seabed miles from shore.

TuriaHon Tariana Turia Link to this

How do you know that?

CalvertHILARY CALVERT Link to this

There is no chance of anybody holding their breath on the seabed from 1840 till now—that just cannot happen. From the 18th century to the 20th century, the Commonwealth generally considered territorial waters to extend for 3 nautical miles. That distance was the length of a cannon shot, and thus the distance of water a nation could defend from—[ Interruption]

BoscawenHon John Boscawen Link to this

I raise a point of order, Mr Chairperson. I am sorry to have to interrupt my colleague, but I am hearing harangues from Labour Opposition members. I also have to listen to continued interjections from Tariana Turia. The reason I specifically object is that when I gave my speech in the first reading debate, Tariana Turia lodged a point of order objection to me, complaining—

RoyThe CHAIRPERSON (Eric Roy) Link to this

The member must address those matters at the time. We do not deal with historical matters here. I will deal with the matter of noise in the Chamber. This is a reasonably impassioned debate, and at times the noise levels have come up and gone down. Overall, I think the noise levels are reasonably acceptable, but from time to time I need to caution members, and I think we need just a bit of decorum and a wee reminder of that.

CalvertHILARY CALVERT Link to this

The Hon Turiana “Turei” seems to believe that—

TuriaHon Tariana Turia Link to this

I raise a point of order, Mr Chairperson. If the member is going to use my name, she can pronounce it correctly. I am offended that she does not.

[... plus a further 147 contributions not shown here]


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