Foreshore and Seabed Bill

I raise a point of order, Madam Chairperson. I just want a clarification. I am looking through the redline copy, which I know is not official but is there to help us. I notice that clauses 38 to 40 seem to be struck out. In actual fact, it would appear that the sequential numbering will go from clause 37 straight to clause 41. Is that caused by hurried preparation, or do I have a copy with some bits missing? My pages are sequentially numbered, if that helps.

The CHAIRPERSON (Ann Hartley): Would the member please repeat that.

GERRY BROWNLEE: If you go to page 46 of that document, Madam Chairperson, you will see that the last clause there is clause 37, “Applications for orders”. There is a small clause remaining there, but virtually from there on, the clauses—38, 39, 40 and 41, 42, and 43—are all removed. When it comes to the content going back into the bill, on page 50 we start with clause 41, so it is just a question of what has happened to clauses 38, 39, and 40.

Dail Jones: I raise a point of order, Madam Chairperson. Whilst the Minister is perhaps getting some more information, I note, on just having a quick look at it, that that legislation relates to ancestral connection, does it not? That has been deleted, hence it is not in the bill any more.

The CHAIRPERSON (Ann Hartley): Yes, but I did not hear fully what the member said.

Dail Jones: I believe that those deletions relate principally to ancestral connection, and there have been some further matters tidied up, as well. Perhaps the Minister could take another call, because I was doing something else when the point of order was raised. But if we look at the redline version, we see that it is principally ancestral connection matter that has been deleted, I think, and matter linked to it, to some extent. The Minister can confirm whether I am right.

Hon Margaret Wilson: As I read it, both members are right. The numbers do not run sequentially, and that is because the ancestral connection clauses have been removed—those three—so the bill needs to be renumbered. As the member Mr Brownlee quite rightly noted, this redline version is here to assist; it is not the official version. It will be changed.

GERRY BROWNLEE: Well, I think that that just serves to show how difficult it is to deal with this bill. I am very pleased that the New Zealand First member Dail Jones is in the Chamber. He should be sitting in the Minister’s chair. That little explanation from him certainly confirms that this Supplementary Order Paper, which is effectively an amendment bill, by and large, is his work. The country will not thank him for that.

The interesting thing about this part, we would contend, is that in many ways clause 35 is what the Government should have done—or the essence of it is what it should have done—right from the start, to make it clear that the Te Ture Whenua Maori Act did not give jurisdiction to the Māori Land Court to deal with the foreshore and the seabed. That should have happened right upfront, and the rest of it should have been taken from there.

The fascinating thing about this whole part is that it will empower the Māori Land Court to decide who has customary rights and who does not. It would seem to me that if an iwi grouping, a hapū grouping, or even a whānau grouping has a customary right, then it has it. So why does it have to go to the Māori Land Court to have that right sorted out?

In the South Island—and Dover Samuels will be able to attest to this because he is a beneficiary—there are arrangements for a particular customary right on the Crown’s Tītī Islands, the mutton birding islands, that is a long established customary right. Not any Māori can go there; only certain families can go there. That right has been passed down from generation to generation, and I expect that it would not change if there were some application to have it further ratified by going to the Māori Land Court.

Our view quite simply, when it comes to customary rights, is that those recognitions should be made as part of treaty settlements—as they have been frequently up to now, as they were under the National Party, and as they will continue to be under the National Party. Those areas in question are not huge; they are relatively discrete areas around the country where undeniably there has been an exercise of a customary right for many, many generations.

What is, perhaps, most offensive about this piece of the bill is that it assumes, and works from the premise, that no customary right can be established post-1840. That has to be an utter nonsense. A good part of the country was completely desolate of human habitation in 1840. There have to be hundreds of thousands of people who have taken up residence around this country and engaged in activities that could be considered customary only for them. But this bill will not recognise that. I think particularly in the South Island, where it was so sparsely populated and where new communities have sprung up, that no matter whether people are Māori or non-Māori this legislation will be a denial of customary rights that they should be able to exercise. I think it is also amazing that where we can say there has been a customary practice—obviously in this case for more than 160-odd years, or whatever—suddenly the Minister of Conservation will be brought in on top of that, and he will make the determination, for example, of how many mutton birds Dover Samuels and his colleagues can take from the Crown’s Tītī Islands in any particular year—[Interruption] I only said Dover Samuels because he told me that he has access rights.

Hon Member: I would not believe him.

GERRY BROWNLEE: Oh, has he not? He has led me up the garden path. Well, why is that a surprise!

The point is that there are people who have had those access rights and who have been carrying out that activity for many, many years, and it does not appear that they have carried out that activity in a way that has destroyed the resource. But it would appear that we are still going to have the Māori Land Court ratify that. Then, despite treaty settlements we are going to have the Minister of Conservation inserted into the process as well. We know that the current Minister of Conservation is, in fact, more like a “Minister of Preservation”, because he just does not want anything to be touched, anywhere, so I wonder whether members on the other side of the House or the Minister considers that these provisions in actual fact do cut across and place unnecessary constraint on those who hold the customary right.

Mr Brownlee has raised a point that suggests he has not understood the importance of 1840, and Dr Mapp, in supporting Mr Brownlee in that comment indicates that he has not understood the importance of 1840 either, and neither have the Māori Land Court judges. As Dr McHugh said to us, and I refer to the Executive Summary—and I will quote just a small part of it, because this is only a 5-minute speech: He said: “In clarifying that, the High Court will have to develop a legal test and in doing so it will probably combine factual use and occupation (the Canadian factual-basis test) and the continuity of Maori custom (the Australian normative-basis test). Under both tests the crucial date is that of Crown sovereignty (1840).”

We have to have a fixed date. It is the common law, for goodness’ sake! How many times do we have to tell the National Party? It is the common law on which the Ngāti Apa decision was based, and which Dr McHugh spoke to us endlessly about. Dover Samuels understands. He is a practical man of the land and the sea. But these National Party people with PhDs and such like just do not get it. We have to have a fixed date. If one does not have a fixed date, the Māori Land Court can keep changing the date to suit whoever comes along to it in accordance with whatever their tikanga just might have to be on the day. We could have transfers from 1840 to 1850 to 1870 to 1910 to 1980 to 2000. There could be endless movement, and that is why there has to be a fixed time of 1840. That is what I proposed when the Labour Party made the suggestion in all good faith, because it was with departmental support. It has to be 1840.

I am appalled at the interference by the judiciary in this legislation, with particular reference to the Māori Land Court. There is a clear constitutional convention that Parliament and the judiciary do not mix. There has been a breach of that convention by the judges of the Māori Land Court. I am concerned that some of those Māori Land Court judges might have a personal interest in this matter, again, making that breach of the constitutional convention even greater. No judge should come before a select committee as having made submissions. That is understood by everybody but, it seems, the Māori Land Court. The Māori Land Court has tried to influence Parliament by making a submission to change the 1840 rule. I want to know, because I have been informed by a member sitting across there that one of those Māori Land Court judges’ tribes will benefit by a movable 1840 rule. Māori Land Court judges have no right to make a submission, and clearly, if they do, they should disclose their personal interest.

Hon Dr Nick Smith: What are you going to do about it?

DAIL JONES: We had it taken out. Those members want it in. We do not want a movable feast. We could not want Māori Land Court judges having a conflict of interest and influencing the decision. The National Party seems to want that. I will be writing to the Chief Justice and to the Attorney-General. I believe that there has to be clear investigation of the Māori Land Court and its view of having a movable 1840. It is like a computer programme, to put it in current terms. If one has a software programme, one must not have a virus. But to move the date from 1840 onwards, would be like a computer virus. At the end of the day, the programme would be corrupted and it could come to a halt. One must have a fixed date. That is the point I made. That is the point made by Dr McHugh. It has to be certain. Mr Fairbrother made that point earlier on, as well. There has to be a certain date, and that is the answer also to the member for the Tainui area, Nanaia Mahuta. There has to be a fixed date, otherwise all sorts of people will be going to their cuzzies in the Māori Land Court and saying: “Hey bro, we’ve done a deal with so and so and there’s a continuity.”, and it will just go on forever.

The whole idea of this is a certain date, 1840, and I am absolutely staggered that Māori Land Court judges, who also raised questions of judicial appointments, want more jobs for the boys and girls. I have never heard of a judicial officer saying to a select committee that they want more jobs, better conditions, better pay, and all those things that flow from it. That is unheard of. The matter should be considered at an executive level. Whoever is in charge of the Māori Land Court should be speaking to the Attorney-General or to the Chief Justice. He or she should not be coming to Parliament. He or she should not be talking about legal aid, for example. That is a separate, political matter. It is a policy matter, and not a matter for the Māori Land Court. It is suggested that it wants more work, to feather its own nest, and make sure that it continues forever and a day. This is an absolutely appalling and disgraceful situation. The Māori Land Court needs to be fully investigated.

The Green Party has a large number of amendments on Part 3 as well—[Interruption]—and we are looking forward to that, are we not! A number of amendments refer to the provisions about how applications for customary rights orders will be decided. One of our amendments deletes clause 42 and replaces it with something that is substantially simpler, easier to manage, and more accessible, but that also acknowledges that any customary rights have to be exercised in accordance with the law, and that the law does apply to those areas. So it does not give complete free rein.

Clause 42 as set out in Supplementary Order Paper 302 is a real concern. During the select committee hearings a lot of people were very worried about the possibility that resource consents could prevent Māori from getting a customary rights order, because of the way that the tests for getting them were structured. It still is a serious concern. Will a resource consent for a very short period of time—perhaps 5 years—or even for 30 years, disrupt, interfere, and effectively extinguish a customary right that has been in practice and in existence, effectively, for the last 500 or 800 years? The answer remains that, yes, a resource consent will do that, even though officials assured us that resource consents would be excluded, and that they would make sure that resource consents could not affect a customary rights order.

The way that the clause has been structured to allow that to happen is by providing a myriad of little tests that Māori will have to meet. First, they have to have been exercising the customary right since 1840; like Dail Jones said, that makes perfect sense given that we are talking about customary rights here. Also, the customary activity has to have been exercised on a particular piece of foreshore and seabed; of course, that makes sense, too.

One criterion is that the customary right is not to have been prohibited by any enactment or rule of law; that is in clause 42(1). Resource consents are specifically excluded from affecting that. That means that a resource consent is not an enactment or rule of law that would prohibit the exercise of a customary right. On the face of it, it looks like customary rights orders are protected from resource consents, but, in fact, the test that the customary right has to have been exercised substantially uninterrupted since 1840 will be subject to resource consents, and that means that resource consents can substantially interrupt the practice of that customary right. It does not matter whether the whānau, the hapū, or the iwi have been trying to exercise their right during the period that a resource consent has been in place, and it does not matter that they had no control at all as to whether the resource consent would be approved by the local council—they could have had no culpability at all in that resource consent having gone ahead, no responsibility for it, and no capacity to stop it—that resource consent, whether it be for 5, 10, or 20 years, can substantially interrupt their ability to carry out their customary right that they have been carrying out for 200 or 500 years, and can prevent them from ever being able to get a customary rights order.

It is an anomaly in the process. I do not know whether the Government intended it to be the case. The officials at the select committee clearly said that they did not want resource consents to interfere with customary rights orders, but the way that the bill is structured means that they can interfere if they have physically prevented the carrying out, in some form or another, of that customary right in the form that it was carried out in 1840. If there was the capacity for that customary right to be broadened in some way, or the rules around substantially the same exercise of that right, or if there was allowance for periods of time when there was a lacuna in the exercise of that right because of external events occurring to that land or to that hapū, then maybe this rule would not be such a problem. But with the way that it is structured now, if a resource consent has stopped a hapū from getting access—even if it is only access to that land; even if it is not a resource consent over the foreshore and seabed itself, but over access ways to it—they will not be able to get their customary rights order.

Resource consents are prolific in this country. They are a critical environmental management tool that is used in all sorts of ways in all sorts of places. Hundreds and hundreds of whānau and hapū will not be able to get their customary rights, because a resource consent has interrupted them. It is unjust.

With regard to Part 3, I make the following observations. I disagree quite vigorously with the New Zealand First member with regard to the criticism of the Māori Land Court bench. The jurisdiction of the Māori Land Court bench has increased somewhat in recent years. That bench, rightly or wrongly, has a very specific oversight requirement in terms of a totally different form of land tenure that is held in this country. As a consequence, it is a court of special character, and it does have some very special skills on board it. It has made a number of submissions in a number of areas, as judges often do. I did want to stand and say that it is a very fine bench. It works under some significant constraints, and I reject the way that it has been criticised in the Committee this afternoon.

I shall move on to the jurisdiction of the court. The jurisdiction of the court has been clearly constrained in Part 3, relevant to customary rights orders. As to the point made by the Green member who has just resumed her seat, I have struggled with the Green member’s contributions all the time in the Committee on this matter. The reason why I struggle is that I do not understand, by example, what she is actually talking about. Extant rights are protected—existing rights have to be protected. The reality is that if there are Resource Management Act consent issues in the foreshore and seabed domain, so be it. Two wrongs do not make a right. The reality is that this particular part of the bill goes directly to the recognition of customary rights orders by way of orders from the Māori Land Court. On that particular basis I want to indicate that the underpinning benchmark, if one likes, for the finding of a customary rights order is the tikanga test. The tikanga test folds back also into Part 2—the territorial customary rights orders. One cannot have a territorial customary rights order unless there is a tikanga test that underwrites it. Every piece of land in this country that was not confiscated and handed back by way of Crown grant has a whakapapa that goes back to the Native Land Court, and that whakapapa is determined solely on tikanga rights. What are some of those rights? They are: te take mātaotao, te take o te ahi kā, te take mārena, and te take raupatu, and so on and so forth. So Māori tikanga has actually founded the title system upon which many Kiwis hold their own land. The reality is that tikanga underwrites the customary rights orders.

The fact that we have not had the opportunity to explore customary rights because of the finding in the Court of Appeal case that led to this legislation is a worry and a regret. But, like all good Governments, we have to bring certainty and closure. We have to put a process in place that will achieve a fair and just outcome in the event that common law rights do exist. Where they do exist, this legislation puts in place a process that allows Māori to go to the Māori Land Court and to continue to explore whether their rights can be crystallised and whether they can provide the evidence to achieve that. So it is a very simple, very clear process, and it has a significant precedent base in the Māori Land Court. I support the Māori Land Court bench determining that matter. Because of its special character, its special institutional memory, and its special recording capability in respect of who holds mana in certain areas and how people actually achieved that mana, that is how we can find a faster way of identifying and crystallising whether indeed customary rights continue to exist, notwithstanding that the fall of law may have extinguished them. I do not know whether that is so, because we have not carried on with that inquiry. So I commend this part of the bill to the Committee, because it is a two-part process: territorial customary rights, and customary rights orders. Having customary rights orders is obviously a significant plank and a base that can lead one into a territorial customary rights regime. That is part of the evidential track that we have here.

I conclude by restating the points I wanted to make—that one cannot escape the tikanga test in asserting either a territorial customary right or, in this instance, a customary rights order. One cannot escape it. It actually underwrites the whole bedrock upon which Māori land law applies. I look forward to us asserting those rights as we continue to roll them out and evidence them.

I would like to take a brief call on proposed new clause 41, “Limits to jurisdiction of Māori Land Court under this Part”. Before I go on with my remarks, I would like to say that the wording under the proposed new clause 41 is identical to the wording in new Part 2A, except that in that context it refers to the High Court. The point I want to talk about is therefore not limited to the Māori Land Court but applies with equal force to the High Court itself. Subclause (2) of the proposed new clause states: “A customary rights order must not be made in respect of an activity, use, or practice on the basis of a spiritual or cultural association, unless that association is manifested by the relevant whānau, hapū, or iwi in a physical activity or use related to a natural or physical resource.”

I would like to compliment the Government on that particular clause. It is a model clause that, in my opinion, should also be reflected in the Resource Management Act. I have been putting that proposal to the Government for some time, and I understand that it may have a look at it. I hope the Government will choose to adopt it, because it is a very important clause and a very important take on what can otherwise lead to quite unacceptable legal outcomes. I believe that Simon Upton, the person who steered the Resource Management Act through the House, has admitted that that Act is quite defective in terms of the way it deals with spiritual matters. The reason it does not work is that if we say the court can decide something, taking into account a spiritual connotation, then we immediately go off into the metaphysical. The question I raised earlier was this: how can any court, any human jurisdiction, possibly decide whether the spiritual truths—the metaphysical matters—that are being presented to the court are true? By definition, they are totally subjective. They are personal to the beliefs of the particular applicants to the court. By the way, when it comes to Māori applicants let us be quite clear that whānau and Māori in this country belong to a variety of different religions, including some who adhere to traditional Māori beliefs. But Māori in their spirituality are by no means limited to those beliefs. Obviously, there are many, many Māori who are Christians, Islamic, and so on.

The issue just comes down to the absolutely common-sense conclusion that we must try to reflect adequately in law anything that relates to the spiritual. I am not denying the spiritual for one moment—to the contrary. I am saying that we can ask a court to take a spiritual matter into account only if it is manifested in some physical or natural way. I am very, very pleased to see that that wording has now been adopted. To give an example, we can talk about a place of worship. A place of worship, obviously, has a physical presence of some sort—it is on the ground—so it can be taken into account in establishing a customary right, and can therefore lead to a customary right order. If there is something physical—something natural—in existence, we can do that. I want to commend the Government for picking that up. As some other people have said earlier in this debate, in some ways in this bill we are amending the Resource Management Act, because essentially a lot of this issue is about the management of resources on the foreshore and the seabed. So I do express the hope that clause 41 will set a good precedent and that we will see the same wording picked up in the forthcoming review of the Resource Management Act.

I rise to support this part of the bill and also the amendments on the Supplementary Order Paper. I feel it may be useful to go over again the origins of this part of the legislation, which have already been touched on by my colleague John Tamihere. The essence of the action to the Court of Appeal was to establish a route whereby Māori customary rights could be determined and recognised formally by the court, and specifically by the Māori Land Court. Although those who have read the judgment know that there were eight or nine questions, the Court of Appeal really only addressed itself to the question of the appropriateness of the Māori Land Court to be the jurisdiction to determine Māori customary rights. On that question, it was quite clear. Therefore, the question as to why that is happening would seem to me to be obviously answered by the fact that the Court of Appeal directed that there should be an increase in the jurisdiction of the Māori Land Court in that respect.

Once that was to be actioned through legislation, the question became one of how one would express Māori customary rights. Proposed new clause 42, referred to by the member from the Green Party, sets out the test as it is understood and accepted in the common law world. I know there has been a tendency to try to change that test, and as such to move away from the origin of those rights, which are firmly based in common law customary rights. But the fact remains that their legitimacy and their recognition in the law has to go back to that origin.

It is true, as the members of the Fisheries and Other Sea-related Legislation Committee have indicated in their various contributions in the Committee, that there is some difference as to the exact criteria used in determining customary rights in the various jurisdictions, and particularly in Canada and Australia, from which we take our precedents. The reason why we do not have a strong jurisprudence on customary common law rights is, of course, due to the Treaty of Waitangi. In fact, most of the rights pursued have been founded upon breaches of the treaty. However, that has not meant that there have not always been in existence, as a residual right, the customary common law rights. This legislation is a recognition of those rights for the first time, as Māori colleagues have repeatedly said, within the context of legislation passed by this Parliament. In that context they do get an added recognition. They get a formality and a clarity, and they get a process for enforcement in way that is understood by all parties who will be affected by them.

The reason why there is the reference to 1840 is almost so obvious that one is embarrassed to actually restate it. I am constantly amazed—and I know I will apologise for this comment—as to how that member wishes to share his ignorance in this area with more people than perhaps is decent. It just seems that 1840 was, in fact, the significant time. It was at that time that the agreement was reached that did affect the nature of the customary common law rights. By definition, without the treaty the whole of the jurisprudence in this country for Māori, in terms of addressing breaches, would have been based on common law customary right. But because of the treaty and because of the process of extinguishment, that in fact is a residual, if one likes, category for legal action. However, it has been seen and is perfectly understood as being a whole new source of jurisprudence that we can recreate in our likeness, without any reference back to its common law roots. This legislation says no, its legitimacy must be founded in those roots, and that is why those criteria are set there, and the essence of those criteria is tikanga Māori. One cannot in fact establish the nature of a common law customary right without reference to tikanga Māori, and that is why that is explicitly stated within the bill.

On another matter that the member for the Greens raised I also am puzzled, because it seemed to me that clause 42A(3) would address her point.

That was the former dean of Waikato law school who was speaking. It has puzzled us that—we could not understand why—Hamilton law graduates could not get jobs outside the grievance industry, but now we understand it, given that legal reasoning. As I listened to Mr Copeland, I found myself in strange agreement with him. He was complaining about the fact that this bill puts the metaphysical dimension into legislation and that the law should not rule on that. I found that to be absolutely true. Of course, I found it interesting that that view came from Mr Copeland, who I understood was here in Parliament in order to put the metaphysical dimension into our legislation and into Government policy—as long as it is the right metaphysics, I guess.

I go back to Mr Tamihere’s speech. It is very, very clear that that member focused at university on tax law, rather than on any jurisprudence or constitutional principles, because how wrong could a man get? If the Government was proud of this legislation, why did it present the Supplementary Order Paper just yesterday? Why is the Government racing this legislation through under urgency in a couple of days? If the Government believes that this legislation will withstand scrutiny, why not take the time for that? It is because the Government knows it does not withstand scrutiny. I know that Nanaia Mahuta agrees with me on that; she is not going to vote for this bill at the third reading.

Rt Hon Winston Peters: She is.

RODNEY HIDE: No, no. She is a person of principle. We know that she will not vote for it. We know that John Tamihere does not agree with this bill. He is just voting for it—[Interruption] What does he say?

John Tamihere: I’m voting for it.

RODNEY HIDE: Oh, he says he is going to vote for it—just as he said he would not take the golden handshake.

We have not changed our view of this legislation, and what we need to do is to draw the dots together. Let us take all the dots, join them together, and see what is going on here. The reason that Māori people are upset over this bill is a sound one. They were going through a process, through the courts of New Zealand, to determine what their customary rights were. They were absolutely entitled to do that.

Hon Dover Samuels: They can do it under this bill.

RODNEY HIDE: No, they cannot do that. If they could still do that, why does it need legislation? They were denied the opportunity to do that, and the ACT party says that is wrong. We felt that the rights of Māori, as the Court of Appeal stated, were quite circumscribed—the odd reef, and the odd burial site. We see no objection to Māori exercising their rights. We see no reason why they should be denied that opportunity. So Māori are upset that the Government came along and denied them their right to have their day in court. [Interruption] Dover Samuels is yelling out, and New Zealand First is yelling out, that Māori do have those rights. Let us just see in this legislation what their rights are. Well, they can go to the Māori Land Court, and they can go to the High Court and the court can determine—what are they called—customary right orders. [Interruption] I have to tell that member—what is his name? Darren Hughes. I have to tell Darren Hughes that when people go off to the court to have their customary rights determined, they do not get a customary rights order. They get the customary rights they are entitled to.

Hon Dover Samuels: Did you get a customary rights order?

RODNEY HIDE: I know that Dover Samuels does not like to hear the truth about this bill. Māori can go to court, and the Māori Land Court and the High Court are to determine customary rights orders.

Hon Dover Samuels: Blowhard!

RODNEY HIDE: He says I am a blowhard. Let me ask Mr Samuels this: how much of the foreshore and seabed, in his view, will be subject to a customary rights order?

Hon Dover Samuels: It depends on how many whānau and hapū take their applications to the Māori Land Court and the High Court.

RODNEY HIDE: Oh! So that is the answer. And if Māori apply, do they automatically get a customary rights order? I am asking Mr Samuels. If a whānau, hapū, or iwi applies, does it automatically get one?

Hon Dover Samuels: It has to go to the court.

RODNEY HIDE: How much of the foreshore and seabed could that apply to?

Hon Dover Samuels: I can’t determine that. It has to go to the court.

RODNEY HIDE: He cannot determine that. Exactly! Is that not the point? We know Mr Tamihere is on record as saying it could be up to 10 percent of the foreshore and seabed of New Zealand. I say, and John Tamihere says, it could be a lot more. That is the problem with regard to this bill.

That was a most interesting exposition of one of ACT’s views on this bill. The other ACT view I quite like is contained on page 15 of the report of the Fisheries and Other Sea-related Legislation Committee, where it states: “It is our view that this bill insults the rule of law by failing to uphold the sanctity of property rights …”. Well, what is a customary rights order? It is bundle of rights. A customary right is a bundle of rights that varies from hapū to hapū, from use to use. It is a bundle of rights that is non-exclusive and not necessarily territorial, that does not require contiguous land, and that requires physical activity as well as, maybe, a spiritual connection.

The rights are, in fact, rights that exist and that have existed since at least 1870 in the case decided by Chief Judge Fenton in the Kauwaeranga case. Unfortunately, by a drafting accident, it seems, in 1909 they were removed from legislation, and in 1993 they were even further blocked by yet another drafting mistake.

Sitting suspended from 6 pm to 7 pm

RUSSELL FAIRBROTHER: On 4 November this year, which is almost 14 days ago, the National Party was, in effect, supporting this part. In case members opposite have forgotten, as one would expect from listening to the leaderless debate in this Chamber, I take them to page 12 of the select committee report, which states: “New Zealand National supports the recognition of customary rights. However, such rights should not be allowed to impinge unduly on other rights and activities in the foreshore and seabed.” That is exactly what a customary rights order is. It is non-territorial and non-exclusive. It is a bundle of rights—rights that have been in existence since before 1840, that are at present in existence, and that will continue to be in existence under this bill. So it is no wonder that National is without leadership on this issue, because 14 days ago that party put its position in writing and, of course, today no leader will speak in favour of that remote position.

Hon Dr Nick Smith: It has been completely changed.

RUSSELL FAIRBROTHER: They have completely changed, yes. They are worried about gates under the sea, when the issue here is really about a bundle of property rights.

ACT says that property rights are sacred. I have to say that “sanctity” is an unusual word to use in association with property rights. This bill absolutely delivers on property rights, because a customary rights order is precisely that. It is a bundle of rights that attaches to land, that is not exclusive, that is non-territorial, and that does not require contiguity but does require continuity. They are property rights that have been recognised by our courts from way back in 1870, but that by some omission were left out of the 1993 Act. That was pointed out to us by the judges in the Ngāti Apa case. We have now put them back in this bill, reinforced and accepted quite clearly by the National Party in their view on page 12 of the select committee report.

So we are wondering what this debate can really be about. Is it about ACT’s contention that the rights are Māori rights? But then again, how could a customary rights order that has been in existence since before 1840 be other than a Māori order, a Māori right? In case there is that possibility, the bill provides for it to be also for non-Māori. So, logically, there should not be any criticism from either the ACT party or from our leaderless friends across the Chamber in the National Party.

What this bill does do, of course, is to open the route for a conventional customary right to be easily investigated at less cost. It takes it back to the Māori Land Court, and that satisfies the constant plea from so many submitters who came before the committee saying: “No Parliament should tell us what our tikanga is.” Of course, no Parliament will tell iwi, hapū, or whānau what their tikanga is, because the Māori Land Court will decide that on the basis of the facts advanced by each individual iwi, hapū, or whānau. So this Parliament is not determining what a Māori tikanga is, in this instance. It is that very tikanga that determines the customary rights order that can now be determined in the Māori Land Court. This legislation puts the world back in order.

It is certainly true that National does recognise a place for customary rights. The deputy leader of the National Party set out the circumstances in which they should be granted. He said specifically that it should be through the process of treaty settlements. National has used that process in the past, in the Ngāi Tahu settlement.

I want to turn to a particular point, which is the provision in the bill that these customary rights are to be considered through the Māori Land Court. That is the vehicle that is supposed to determine whether customary rights are to be granted. I have to ask whether that is the right vehicle. The Māori Land Court was set up for very specific purposes. In fact, I am aware that members of the New Zealand First Party know that in detail. The Māori Land Court was set up specifically to deal with Māori land, thus, essentially, to deal with disputes between Māori and Māori as to who are landowners and who have various rights, and more recently, to deal with mandating issues under section 30. It is all well understood and accepted, and that is precisely the purpose of the Māori Land Court.

In this instance, however—and the Government would say this itself—we are talking about the public estate for all New Zealanders; the foreshore and seabed owned by the Crown on behalf of all New Zealanders. National does not have any dispute with that proposition. We support it. So the question is whether a court that is set up essentially to deal with Māori issues, as between Māori and Māori, should then be vested with a general power to deal with matters between the wider public—of which Māori are a subset—and specific Māori issues. I say, no, it should not. That is not the right vehicle.

If this is the intent of the Government in dealing with this issue, then the right vehicle would have been the High Court. The reason for choosing the High Court is that it is the court that acts for and is available to all New Zealanders. We can see this in the processes set up in the various schedules in relation to the Māori Land Court. Only persons who have specific interests—and that primarily will be Māori—will in fact be able to appear before it. I guess, realistically, that that will also include district and regional councils. The general public is effectively excluded.

So we say that at a fundamental and principled level—and this is not a comment about individual judges, or anything of that nature—the Māori Land Court is simply the wrong court. If the Government was determined to go down that path, it should have chosen the High Court. That is proven by the fact that only the High Court can deal with the territorial customary rights orders set out in Part 2, and there is a reason for that. It was recognised that the High Court had that broader general expertise and interest to deal with those issues. In some respects, I think that the chair of the select committee acknowledges that fact. Similarly, of course, in terms of general customary rights orders under clause 61—the only one we have an example of, apparently, is the Auckland anniversary regatta, as if that protection were actually needed—they would also be dealt with by the High Court. It seems to me that on a principled basis, we should have a seamless jurisdiction for that kind of thing. The High Court, as has been noted, with its inherent jurisdiction and interest for all New Zealanders, and with its particular expertise established in that regard, should be the court for dealing with these matters—if one is to choose a judicial approach to these issues. It has the right expertise. Issues have been raised by members on the other side of the Chamber. What about the issues of tikanga Māori?

I had not realised that during one of my very frequent absences from the Chamber today, the deputy leader of the National Party had unburdened himself of a legal opinion—that customary rights should be dealt with through the Treaty of Waitangi claims settlement process. I have to say that if that assertion were made, and it was certainly made on his behalf by his legal counsel Dr Wayne Mapp, then it is perhaps the most peculiar assertion made so far in this extraordinarily peculiar debate.

The treaty claims settlement process is, as its name suggests—even to members of the National Party—about the settlement of treaty claims.

Hon Member: No!

Hon Dr MICHAEL CULLEN: Yes! Treaty claims arise from treaty grievances. The treaty grievance that would arise in the instance of customary rights is that they had been abolished at some point in the past by improper action on the part of the Crown. If they have been abolished they are no longer customary rights, because an essential test of a customary right is that it endures to the present day reasonably uninterrupted.

It is certainly a potential treaty claim if the Crown has acted in an improper way that has interrupted people’s ability to claim customary rights—the member is absolutely right on that—but the process of the recognition of existing customary rights cannot possibly be via the treaty claims process. If that is what the National Party’s great cogitations about the legal basis of this has led to, then Dr Mapp should definitely stick to tax law and not get into those kinds of areas at all.

A customary right is a common law right that existed in 1840 at the time of the assumption of sovereignty and has continued reasonably uninterrupted down to the present day. That is the great issue of moment for the National Party, and we finally come down to what its core problem is: it believes that customary rights orders in relation to Māori should be applied for through the High Court rather than through the Māori Land Court. That is what the die-in-the-ditch fighting of this bill has all been about to this point.

The issue there is that in the previous part, the National Party opposed the fact that the High Court can go to the Māori Appellate Court for a ruling on tikanga matters. If the High Court cannot go to the Māori Appellate Court for a ruling on tikanga matters, it would be extraordinarily difficult for the High Court to have the expertise to deal with applications for Māori customary rights orders.

I suggest that the National Party goes back to the drawing board again and thinks about some kind of reasoned-principle objection to this bill. At least the ACT party has one: it is purely to allow current processes to run around the relationship to property rights. That at least is a reasoned process. I think it is wrong, but the National Party has yet in this entire debate over many, many hours to put up any sensible argument at all—not at any single point.

I agree with the Minister that the National Party’s attitude towards this bill has some inconsistencies, and that has come through in some of its speeches. However, it is the National Party’s problem—it is in Opposition.

Let me turn the Committee’s attention to what is really the heart of the difficulty with this bill. I could take as an example any one of the clauses that include the phrase “tikanga Māori”. For instance, new clause 42(1)(b)(ii) states: “has been carried on, exercised, or followed in accordance with tikanga Māori …”. We then have to ask what “tikanga Māori” means. To do this we have to go to different legislation, where we find that those words simply mean “Māori customary values and practices”.

The Committee should realise how uncertain that phrase is. I do not want to be politically incorrect, but let us point out that Māori customary values with regard to property in 1840, and for some time afterwards, meant that one could acquire property by conquest. Are we really passing a bill that says that is the way to decide on who has the foreshore? Under that argument, Māori could say that they went back and conquered Takapuna Beach last week. That is a Māori customary value, and that is what the law will now say—[Interruption]

They have done it since 1840. The member says “since 1840”. That is true, but the point I make is this—and I say it to Mr Dail Jones quite seriously: 4 years ago when Parliament was looking at different land legislation, some High Court judges appeared in front of the Māori Affairs Committee. They said they would interpret anything, but if Parliament put into legislation phrases like that one, difficulties arose. The particular example then had to do with the Otago Harbour Board, which had a foreshore problem because of a claimant who said that his ancestor had literally urinated over the area, and that had given him some cultural claim. The court said that the difficulty was that the legislation Parliament had given it was so vague that the case had cost hundreds of thousands of dollars.

Members have probably forgotten the case, but I now hear some members say that we cannot put into law what Māori customary values are. That is an arrogant piece of nonsense. Why do I say it is arrogant? We took the common law principles—members should go back and look at them; in fact, I quoted them to the Committee earlier with regard to clause 21—one of which is that one has to have exercised a customary activity continuously. If we as a Parliament are capable of doing that, we should be capable of setting out in law what the customary values will be. Why should we do that? The reason is that we cannot have certainty—we cannot have the rule of law—unless everyone knows what it is. We are now passing a law whereby no one knows what it is—no one. There are even Māori members getting up and boasting about the fact that no one knows what the law will be.

We also know—and I agree with Mr Dail Jones on this—that the Māori Land Court has become highly politicised. It is not really the court’s fault; I think it was a mistake to put those judges on to the Waitangi Tribunal. But Māori Land Court judges now make political speeches. They make speeches that make the Māori Party look moderate. We are handing to that group of activist judges, who make the word “activist” seem passive, a clause that will mean—and we all know this—whatever those judges decide it to mean. Then the judge will say that the right has to be exercised if the customary activity is “substantially” uninterrupted. What does that mean? I can hear somebody say: “Well, in Māori terms, 150 years is nothing.”

I will follow on in the same vein with the points made by Richard Prebble, but with regard to clause 43B. This is a completely new clause. In all the debate around the Foreshore and Seabed Bill, the whole issue of wāhi tapu has not yet been introduced. Clause 43B includes the capacity for the Māori Land Court to declare areas of the foreshore and seabed as wāhi tapu, and then—going back to an earlier part—to provide for the exclusion of the public from those areas, and for the appointment of wardens.

The first thing I say to the Committee is that it is a complete tragedy for this Parliament, and it shows the arrogance of this Government, that it would impose under urgency a provision that was tabled only last evening, which will be law before the end of the week. That is an absolute—

Dail Jones: That is not correct.

Hon Dr NICK SMITH: Clause 43B is a new clause, I say to Mr Jones, and it provides for wāhi tapu.

Wāhi tapu is defined in the Historic Places Act, which gives it a definition that we could drive a bus through. It is as broad as one would like. I think New Zealanders have a common-sense respect for burial grounds. But let us be realistic. Will there be burial grounds in the foreshore and the seabed? The seabed is a particularly difficult place in which to have burial grounds.

Hon Member: Not for whales.

Hon Dr NICK SMITH: Because those provisions are so riddled with politically correct phrases around Māori spiritual values, maybe whales can be imposed within them. However, where there are burial grounds—wāhi tapu—in the foreshore and seabed, it will enable the public to be excluded.

The leader of New Zealand First came down to the Chamber and said that there would be absolute right of access everywhere in respect of the foreshore and seabed. That is not true. There is very specific provision in the bill against it.

I would simply like the Minister in the chair to answer the question of how it is possible to have a wāhi tapu—based on the definition provided by Waikato University’s Māori affairs department that refers quite specifically to it being a burial ground of human remains—in the foreshore or seabed. There is absolute silence. He has no damn idea, at all. Yet, again, we are being asked—

Hon Dr Michael Cullen: Swearing, little man!

Hon Dr NICK SMITH: The Minister in the chair expects Parliament to ram through this legislation that will introduce wāhi tapu into the foreshore and seabed and will specifically exclude the public. [Interruption] I say to Mr Jones that it will exclude the public. The provisions are very clear about that.

With such a wide definition of wāhi tapu, how do we know what its extent is? How wide is it? We know from our experience with the Historic Places Act that there have been problems all over New Zealand with wāhi tapu. Areas of hundreds and hundreds of hectares have been set aside as wāhi tapu, so much so that the Government has announced a review. Yet the Government is relying on the definition of wāhi tapu on land that it has got itself in trouble over to be the definition in this Foreshore and Seabed Bill, which will see the public excluded.

I simply want some member of the Government to explain why the Māori Land Court will determine wāhi tapu in the foreshore and seabed. We already have a process whereby the Historic Places Trust is able to declare wāhi tapu. Why do we want a dual process?

Darren Hughes: We already know it’s wāhi tapu.

Hon Dr NICK SMITH: The chippy member from, I think, Otaki—I cannot remember his name—says that that is intended. He says that it was always the plan to have those two different forms of wāhi tapu: one through the Historic Places Trust and the other through the Māori Land Court. I do not see any logical reason for doing that. I think it will simply add to the confusion. I do not know why it was not in the original bill. It involves the specific exclusion of the public from areas. Certainly, the new wardens that will be involved will have the power to exclude the public. I say that there is no case that can be made for wāhi tapu in the foreshore and seabed.

To enlighten some of those members across the floor about wāhi tapu, perhaps I can share a couple of things with them. First of all, I have just finished watching what was the Holmes show. John Tamihere and Ken Shirley were on that show. I acknowledge my colleague John Tamihere, because he put the facts of the bill before the New Zealand public. Ken Shirley, who was somehow in his fantasy land, started talking about taniwha. He said that the New Zealand public could expect taniwha running up and down the beach without any clothes on. He said there would be taniwha all over the place, sitting on the rocks, and running up and down the beach. He said that that is included in the bill. I relay to the member Nick Smith that the clause protects, and gives Māori protection for, wāhi tapu that are already established on the foreshore and seabed.

Hon Dr Nick Smith: Where?

Hon DOVER SAMUELS: There are a number. If the member listens and wants to know, I make an offer that I can reserve a space for him in some of the wāhi tapu that I know. There are very old burial grounds that have been subject to accretion. They have been subject to the tide movement. The tide at the beaches has come on to many wāhi tapu right around this country. Those wāhi tapu need protection. They need recognition. The protection offered to them in this bill means that people cannot just run over them with their four-wheel drives. I know that that member would probably take a four-wheel drive bulldozer to dig some pipis or something like that.

Hon Dr Michael Cullen: Or take his tractor.

Hon DOVER SAMUELS: That will prohibit him from taking his tractor with a trench digger to dig up some pipis.

In my view, this is very practical and very simple. I cannot understand that when we start talking about wāhi tapu, every party starts frothing at the mouth. The member over there jumps up and down about it. I put it this way: if there were a Pākehā wāhi tapu, we would support that. [Interruption] I suggest that perhaps the member wants to go out and find the origins of his ancestors, instead of this jumping up and down about wāhi tapu and taniwha—having a kōrero and a fit about what Māori spiritual and cultural values mean. Good God! We are in New Zealand. We Māori respect some Pākehā spiritual values—Merry Christmas, Happy New Year, and Father Christmas. We respect that. I know that that member always sits at the bottom of the chimney waiting for Santa Claus to come down and fill his stocking. We acknowledge that.

But when we as Māori people ask members to think about the things we hold dear in terms of spiritual values, that is shocking! They talk about taniwha running up and down the beach, and all that type of stuff. Let us get real, if we are to have a debate about this bill. I know that, underneath it all, some of those members—at least, those who have been defrosted—actually support this bill.

I know that Georgina te Heuheu is very lonely sitting at the back of the Chamber. There is a word for that. It is called mokemoke—loneliness. “Loneliness is a time in your life.” I feel sorry for Georgina te Heuheu, because I see that she is lonely. Do members know why? It is because her people, Ngāti Tūwharetoa, support this bill. It gives them the right and the recognition. I say to the member across the floor that even Ngāti Tūwharetoa have wāhi tapu. We have to protect them, even though the wāhi tapu are beside their lakes. We give recognition to them. We go to the Māori Land Court. It is not a humbug wāhi tapu. It is not a Clayton’s wāhi tapu. We go to the Māori Land Court to prove that a place is a genuine wāhi tapu, so that it can be given the appropriate recognition under this bill. What is wrong with that?

When the tumult has died I will talk about Part 3 of the Foreshore and Seabed Bill. I will not join with others in expressing the justified outrage at the process that has been followed, but, wow, do we see it writ large in Part 3! Here is a part of 22 clauses; 15 of them have been repealed, and there has been no public process leading to that outcome. It is absolutely lamentable. It is a reflection on Dr Cullen, who sits in front of us now for interrogation.

I ask the Minister two things and invite him, if he can, to respond to them. There is nothing like a challenge, perhaps, to set the good doctor’s brain in action. The first issue I raise with him relates to new clause 35. Why does clause 35(1), which deals with the jurisdiction of the Māori Land Court, refer to the public foreshore and seabed? Should we not be talking about the public foreshore or the seabed? The Minister should surely be aware that when we are talking about the seabed, we are talking about areas that go way out to the very edge of the territorial sea, and maybe beyond. That is the first question.

My second question relates to new clause 41, “Limits to jurisdiction of Māori Land Court under this Part”. Clause 41(2) states, in respect of customary rights orders, that the physical activity or use must be related to “a natural or physical resource.” I was lucky enough to hear the comments Dr Cullen made tonight in the context of the launch of a new New Zealand dictionary. It would be helpful if we had some explanation as to why it is necessary to use the phrase “natural or physical resources”. Is it not the case that all physical resources are natural? These issues emerge in hurried drafting of legislation. In the Resource Management Act, where these concepts are well articulated, such foot faults do not occur to the same extent.

For those who listen on the radio to what is going on in relation to the foreshore and seabed, I say this legislation is convoluted and complex. The exact scope of the arguments that can be made in respect of it are probably not yet identified. An issue in Part 3 is who should own and control the foreshore and seabed. The foreshore, as others have explained, is that area of beach covered and uncovered by the tide. So owners who have riparian rights down to the tidemark are unaffected by what the Government proposes in this legislation.

But I believe—and I am certain I am right—that many in the community are now wholly confused about what the Government is trying to do. If they are concerned, then they certainly should be. It is estimated by others, including the honourable John Tamihere, that about 10 percent of the coastline will be affected by far-reaching proposals that could give management responsibilities to iwi and hapū groups.

In essence, it is proposed that the Crown own the foreshore and seabed, subject to Māori custom. There are two basic concepts. Māori can claim territorial customary rights. That is outside this part, so I do not take the issue further. The second concept, which is directly at issue in connection with Part 3, is that Māori can secure customary rights orders based on tangible activities on the seashore. I say to members of this House that all of this overlooks the reality of a community where Māori and non-Māori have substantially intermingled.

I want to make a few observations by way of edification, to teach the Opposition a few lessons about why wāhi tapu exist and how they exist in this country. It is a shame that, in 2004, members opposite have not taken the time to be respectful, tolerant, and knowledgable enough to identify with the Māori population.

I turn to wāhi tapu. Much ado was made, as usual, by the Hon Dr Nick Smith in regard to wāhi tapu, using an instrument called the Historic Places Trust. In this piece of legislation, we are, as usual, bringing certainty, stability, and closure. A very certain process has been put in place to investigate a whole range of these issues. Why wāhi tapu? In terms of the peoples whom I whakapapa to on the coast around this country, always before Christianity applied we buried our people in and around the coastline, particularly in the sands. Every one of us who whakapapa back to one of those beaches has a sacrosanct wāhi tapu. I would not go into a white community’s cemetery and walk over the headstones of its people. I would not do that, and I do not expect you to walk over the top of our people when I can actually identify where we buried them.

Dr Muriel Newman: I raise a point of order, Mr Chairperson. I think you were being brought into that debate in rather a negative manner.

The CHAIRPERSON (H V Ross Robertson): I thank the member for drawing it to my attention. I am sorry; I was otherwise engaged. If Mr Tamihere brought me into the debate, then he will desist.

Simon Power: I raise a point of order, Mr Chairperson. I say this because the debate has been interrupted. We had an incident earlier this evening when a long and protracted discussion occurred around interruptions and interjections whilst people were taking points of order. We have just seen a recurrence of that from Government members whilst Muriel Newman was on her feet taking a point of order. I ask you to make sure that the groans and yells from the Government when someone takes a legitimate point of order under Standing Orders are kept in check.

The CHAIRPERSON (H V Ross Robertson): If that is the case, then it is unacceptable. I caution members and ask them to desist.

JOHN TAMIHERE: Is it not a great statement in this Chamber, and is it not interesting, that Muriel Newman got to her feet and took a point of order while we are dealing with a very important issue on which her party continues not just to confuse but also to absolutely, consciously, and in a premeditated way, override Māori rights?

I turn now to conclude on wāhi tapu, which is a very important issue. Inland tribes have either caves, special trees, or special areas where they have interred their people. In our people’s way we have a hahunga, which is when we go and lift up the bones of our people and take them to another wāhi tapu area. That is the reality with the wāhi tapu of the coastland peoples, as with Tūwharetoa—it resonates around that lake, as it does around the coastline. The fact that Muriel Newman does not want to acknowledge them, tolerate them, or accept them is bad news for the ACT party. This legislation brings in a process of identification for the first time, if Māori desire to come before it. They are not being forced to if they do not want to.

I turn now to new clause 41, which puts it beyond all doubt. Subclause (2) states: “A customary rights order must not be made in respect of an activity, use, or practice on the basis of a spiritual or cultural association, unless that association is manifested by the relevant whānau, hapū, or iwi in a physical activity or use related to a natural or physical resource.” How much more constrained and defined do we Māori people have to be before we have to prove our rights? People rock up here every day and hear the Speaker give a wonderful karakia, a wonderful piece of Christianity. The fact that we might not be able to see, hear, or understand these things does not make us all animists, as we are blamed for being by the ACT party, and it does not make us lesser peoples.

It is about time we started to tolerate and respect one another. I just ask members opposite to start to do that. This is a great nationhood story and it should not be destroyed tonight by lack of tolerance of, lack of respect for, and lack of acknowledgment of members’ Māori brothers and sisters. I say to Muriel Newman that by the year 2080 there will be few full-blooded Pākehā left. All of the Pākehā will be beneficiaries of this legislation—and God bless them.

Part 3 deals with the jurisdiction of the Māori Land Court in relation to customary rights. It is part of the problem that I referred to in an earlier contribution. We could say that this is very simple legislation. It upholds the mana of Māori—which is the way Mr Winston Peters described it—and it also gives all New Zealanders unimpeded access to the foreshore and seabed. That is fine. It would be great if that was how the bill stood. But we see the reality once we get into the detail of the legislation.

We dealt with the High Court earlier, and now we are discussing the Māori Land Court. When I look at some of the detail, I have to ask—and perhaps Dr Cullen might answer this—how we can reconcile the issue extant in clause 6, which confirms people’s rights to come and go on the foreshore and seabed, with the fact that provision has been made in Part 3 for Māori to prove their customary use and customary rights. It looks good on paper—although, having said that, I do not think that is a correct assertion, anyway; it still looks complex and mangled on paper. But I ask Dr Cullen how we really reconcile those two overriding principles.

One or two people have already rung me this afternoon to comment on the provision that John Tamihere has just commented on. It looks as if Māori could get customary rights orders, but when we look at the limitations in the provision, we see that it is very questionable whether they would get them. When we consider the overriding principle of the bill, which is to give confirmation to New Zealanders that, through the Crown, they own the foreshore and seabed and have access to it, then I think it becomes very difficult to see how this will all work out on the ground. I just wonder whether the Government has thought clearly about that. We have already heard this afternoon about Māori up north, and no doubt it will happen in other places. They will say: “We have customary rights here. We might not have been to the court to get them proven yet, but we have them.” So maybe we will see some blocking of that access as time goes on.

I still have a real problem with how we reconcile the overriding principle set out in new clause 2A, clause 6, new clause12, and some of the other clauses in Part 2 with provisions that look as though they will freely recognise Māori customary rights, yet when we look at the limitations and the detail of them, we see that that will not be so. If the Hon Dover Samuels takes another call, which I hope he does, I want to ask him—as I asked before—about Matauri Bay. It is part of his whenua and is where, no doubt, a lot of customary activity, in accordance with the way he sees it, was carried on. Will access by the public be unimpeded in that area? I think that the provisions in Part 3 would apply specifically to that area. It does make me wonder whether there would be a proper reconciliation, so that when other New Zealanders go up to Matauri Bay, they will go into that lovely settlement and feel absolutely confident they can use the foreshore and seabed that adjoin the land that, I think, the honourable member owns.

I say to Dr Cullen that that is my difficulty. I think that the Minister in the chair should give some reassurance that the orders the Māori Land Court will be able to grant will not impede access for other New Zealanders.

One of the Green Party amendments is to insert a new clause 43AA into this part. That clause proposes that the rights are inalienable, and that no person can: “alienate or cancel any interest in an ancestral connection order, customary rights order, or territorial customary rights.” We were very concerned—and we raised this at the Fisheries and Other Sea-related Legislation Committee, as well—that customary rights orders can be very easily cancelled. The bill provides that once cancelled, they are extinguished forever.

Customary rights are very difficult to get, of course. One has to pass very high thresholds. One effectively has to have carried out an activity since 1840 that has not in any way been interrupted or interfered with by any enactment or rule of law, or interrupted by anything as simple and fleeting as a resource consent. Once one has passed those high thresholds to get the customary rights order, one can then go through a very easy process to cancel it. Basically, if the holder of the order is an authorised person—and that person’s name is on it—has given notice to the other people who are affected by that order, has held a hui about it, and there are no meritorious objections, that order can be cancelled very easily. The application the holder must make has to include the reasons for the cancellation, what process the holder wants to carry out for consultation, and some statement indicating how much support the holder may have from the community affected by the customary rights order. That is so easy to do with very, very few people in support. One has only to look at how few people can support and vote for treaty settlements and governance entities that are accepted by this Government, and one will see just how easily the numbers can be managed in such a way that very few people who are affected by and entitled to the exercise of that customary right need to be involved in order to cancel it forever.

A customary rights order sets out the customary rights that those people, their children, their grandchildren, and generations to come are entitled to exercise by right of their whakapapa, from their tipuna, from mai rāno. They have those rights, and it is not appropriate that they can then be so easily, on a simple application to the court, cancelled and extinguished forever. There are no provisions in this bill to protect that customary rights order. There are no provisions even to indicate whether anyone can object to its cancellation after it has happened and reinstate it—those processes would not work and would not be effective. I imagine that those people would have to take judicial review action in the High Court for that change to occur. The people who will get customary rights orders—if they can get them—will not be people who have the resources and who can spend money on a High Court action in order to reinstate the customary rights that they have already spent so much time, money, and effort getting.

There is a series of Green Party amendments. They delete the capacity to cancel customary rights orders in the bill entirely, and they make sure that none of those rights can be cancelled or extinguished once they have been identified. If John Tamihere is right that the Government’s intention in this bill is to protect customary rights, there is no justification for enabling their cancellation and extinguishment forever by a means as simple as a written application to the court—a process that does not even have a voting requirement in it. There are no numbers in the bill’s provisions to state that there would have to be more than 50 percent support for the cancellation. It could even be the case that those orders could be bought out.

That is not the whole point. If one wants to trust the Government on this bill, one can listen to its members, who say that the whole point of the bill is to protect those rights and to identify and keep them extant through common law provisions—but clearly that is not the case. The Government has made those rights exchangeable and tradable, and that goes directly to the heart of the bill. The whole point is to protect the foreshore and seabed from being tradable and saleable, and to protect customary rights from being extinguished, so as to enable Māori to continue their activities and engage with their customary activities over time, but this bill fails us.

With regard to my hapū in the Wairarapa, Ngāi Tūmapuhia Arangi, which is based on the Wairarapa coast, I believe that their time has come to be able to identify their customary rights to their coastline. Most Māori and most hapū on the coast do know their boundary lines. In the Wairarapa, quite clearly, Ngāi Tūmapuhia’s boundary line is from the Whareama River to the Awhea River, which is just south of Carterton on the coast.

Prior to this bill their rights in respect of their customary right was just an airy-fairy agreement, quite frankly. I am now endorsing this bill, which will be able to identify the hapū’s right to the coastline. It will be no different from the Scottish side of my ancestry, which can identify the clan side of my heritage. [Interruption] I am quite happy to tell the National Party members who are being disorderly, who endorsed the mess-up of this whole thing. I have a property at the beach, and last Christmas I put up a sign that said: “Return the foreshore and seabed to the Crown.” It was no different from what the National Party was saying. People were going past, honking their horns. Even tangata whenua were coming and saying: “Yes, Edwin, we agree with you because some of our people, if they got hold of it, would be selling it off.” This is no different from what happened to our tūpuna 100 to 150 years ago, who did sell off a lot of the land along the Wairarapa coast. Quite frankly I feel ashamed that from Castlepoint, right round to Turakirae Head here in Wellington, the Wairarapa Māori own very little of the land that runs down to the foreshore and seabed, because it has been sold off. I want to say to Māoridom that they are still doing it, and they will still do it.

Opposition Member: That is good!

EDWIN PERRY: Well, that is fine, but what happens now when they have nothing left? I have sat here all day, today, listening to the drivel from the National Party and the Green Party. I say to National members that their resource management legislation of 1991 caused this mess. I want to tell them that their party members are coming to see me, and ringing me, asking why the National Party is not supporting this bill. National members are not supporting it because it is not their bill—it is sour grapes. They have twisted the whole thing round to a racist issue around New Zealand First. That is the only thing they have done. Actually, it is a disgrace that National members have taken this angle. If it had been their bill, they would have been right with it. It is the sour grapes that have got those folks, and that is it.

I want to talk about access, because I am talking about my hapū here. I heard today that certain Māori people are going to stop people going to the beach this summer. I tell members that I have had more Pākehā come to see me in my office in the Wairarapa, saying they have been stopped going to the beach by their own people, but they have never ever been stopped by Māori. [Interruption] Yes, I agree that there will be some Māori who will do that, but in the Wairarapa, in my own area, it has not happened with Māori. I will give an example. There is a block of land, a prime beach site resort on the Wairarapa coast at Riversdale, and my local people, my hapū, were conned out of it because of collusion between the local farmer and the county council. The local hapū were told that they would never be able to build on that land and that they needed to sell it. As a result of collusion between the county and the farmer the land was bought off the hapū, and now there is a $500,000 home on that land.

Members talk about Māori people stopping people going to the beach, but Pākehā are just as bad in the Wairarapa. What did Mr Riddiford do? He was charging the cray fishermen a fee to cross Māori land to launch their boats. Members want to talk about access—I have given two good examples.

Hon Dr Michael Cullen: And he was a good Tory!

EDWIN PERRY: Yes, it is a good story. The member is dead right.

I want to address Part 3, and in particular clause 35, which is about the jurisdiction of the Māori Land Court in respect of Te Ture Whenua Maori Act. I would like to respond to some comments made by John Tamihere and Dover Samuels in this debate, because they claimed that ACT was saying that taniwha and tikanga Māori would be abused. I take the point that John Tamihere made. I would like to think that all New Zealanders were respectful of genuine urupā sites. They are real, they do exist; and it behoves us all to be respectful of them. I agree that many New Zealanders are not as respectful as they should be.

The difficulty is that when we pass general laws like this, which are essentially an amendment to the Resource Management Act and give wide powers, we should not be surprised when they become a moving feast. I ask members opposite how they explain the taniwha that held up Transit New Zealand on State Highway 1 at Meremere. How do they explain that? These same provisions of acknowledging Māori spiritualism etc., were abused, grossly abused, and how many people in the Chamber know how much Transit New Zealand had to pay to make that taniwha go away? The interesting thing about taniwha is that if one pays enough money they will go away. One pays a bit of money here and they go away, but then they pop up somewhere else. That is the problem with this sort of legislation.

I believe that spiritualism should be respected, and in a tolerant society everybody’s spiritualism should be protected. But it is not the role of the State to try to define and codify spiritualism, including tikanga Māori, and that is what this bill is all about. That is why every iwi that came to the Fisheries and other Sea-related Legislation Committee was so offended by the temerity and the arrogance of this controlling Government to define and set limits on tikanga Māori. We have Father Christmas, the Easter bunny, leprechauns, and hobgoblins, but we do not legislate for them. We do not legislate for the tooth fairy, nor should we, because they are moving feasts. That is the problem with the Resource Management Act today. It is meant to be the sustainable management of natural and physical resources, but all of a sudden we have all these unnatural and metaphysical nebulous things that we have to bear in mind.

Now we are setting up foreshore and seabed reserves, and the Labour Māori caucus members told us in the New Zealand Herald this morning that it will be 10 percent of our foreshore and seabed.

Brian Connell: How much?

Hon KEN SHIRLEY: Ten percent, and that is on day one—that is just for openers. Members should not be surprised when we have nonsense legislation like this, and provisions that are based on spiritualism, that some people—not all people—will abuse it. We had the wāhi tapu at Welcome Bay in Tauranga, which I am very familiar with. The matter involved private property, and a local group claiming guardianship, imposed a wahi tāpu through the Historic Places Trust. They claimed urupā. The urupā turned out to be an old 1920 fence line, but it was very convenient for that particular group to try to restrict and control the use of that private property. That is the sort of thing that this nonsense legislation invites.

The ACT party asks why Māori are denied due process through the courts to get a real property right, because that was what was really at stake. The Court of Appeal indicated that this situation would not be widespread, that it was rare. Māori should, at least, have retained the right to establish a full and proper property right, which the ACT party would have supported. But it is this nebulous, ill-defined property right that caused the problems. It is things like the Resource Management Act, which is socialist legislation for confiscation on nebulous concepts. No one knows what it means. It can mean whatever we want it to mean. However, property rights are clear and can be respected. If there were specific important urupā sites, then I would like to see them in a clear, protected property right. That is how they would be properly protected.

I say to the laird of Riversdale, Mr Edwin Perry, that his speech had passion in it, if nothing else. It was in stark contrast to the speech that I had to sit through and listen to when Mr Dail Jones took a call just prior to the dinner break. It was so dull that I now know why Rip van Winkle went to sleep for 100 years. This guy would have us believe that the only reason that 1840 is the date that everything must work off is because it is the law. I ask Mr Jones why we do not just think about having law that evolves to reflect the make-up of our society now. That is what we should be doing. I say to Mr Dover Samuels, while I am at it, that non-Māori New Zealanders do have some spiritual beliefs, but the difference between the way we want to practise those and the way he articulates the case for Māori is that he wants every day for Māori culture to be Christmas Day. We do not buy that.

I have to say, also, that when Dr Cullen was on his feet, he asserted that the problem with the National Party is that we do not know what our argument is. I respond to Dr Cullen by telling him that the real core problem is that he is rushing through this House legislation that has the potential to disenfranchise 90 percent of New Zealanders from their traditions.

Darren Hughes: How?

BRIAN CONNELL: Mr Hughes is calling out. I suggest he goes outside, puts on his first pair of long trousers, and then comes back. Then we will take him seriously.

Darren Hughes: Answer my question! How?

BRIAN CONNELL: The member should go away and come back, and then we will take him seriously.

Darren Hughes: How?

BRIAN CONNELL: The member is yelling out: “How?” He is telling us now, through this legislation, that ancestral connection will disappear, but on closer scrutiny—

Hon KEN SHIRLEY: Clause 31.

BRIAN CONNELL: —yes, clause 31, as one member has called out—it is not disappearing at all. All he has done is a sneaky, back-door deal with New Zealand First somewhere around Courtney Place. They certainly work—they might miss their meal breaks but they never miss their drink breaks. When they were working through that, they failed to tell us that they have put the ancestral connection through the Resource Management Act process. What it means is that they will be able to bring that provision in the back door any time they want. The Māori caucus has already accepted that premise, as recently as last night. The caucus said it “will provide stronger recognition of the traditional association of whānau, hapū and iwi with the coast than the ancestral connection orders initially provided for in the legislation.” It is coming from the Māori caucus.

The great pity of all of this is that I do not believe any of it had to happen. If cooler heads had prevailed and people had taken time to read the appeal decision, they would have seen that it did not state anywhere in that decision that Māori would get ownership of our foreshore and seabed. It never stated that anywhere. But rather than wait for due process, the poll-driven Government, which is now in cahoots with New Zealand First, decided to legislate because it thought it would get some cheap votes as a consequence. But boy, has that cost the Government dearly! The Māori caucus members know exactly what I am talking about. Their heads have gone down now and they are not so chipper. They know it has cost them dearly, and it will probably cost some of them their seats. I hope it does.

I move, That the question be now put.

First of all, I will make a few comments in regard to Mr Ken Shirley’s earlier speech, in which he clearly confused the Resource Management Act with this legislation. I do not disagree that there are still problems in the Resource Management Act regarding its application of the metaphysical—[Interruption] Yes, we understand that, but this is dealing with the problem the member raised, because the clauses that have been read out several times, for the member to pay attention to, state that customary rights orders must not be made in respect of an activity, use, or practice on the basis of spiritual or cultural association unless that association is manifested by the relevant hapū or iwi in a physical activity or use related to a natural physical resource. That has been read to Mr Shirley a number of times.

We are grateful that that provision is in there but it is ridiculous to take it too far. It is right that we respect the spiritual values of Māoridom in this country when it comes to their burial sites and the things that relate to physical resources. That point has been made very clearly. It is interesting that the Minister in the chair, David Benson-Pope, is the Minister responsible for the Resource Management Act reform, because United Future is concerned about the unresolved issues around the Resource Management Act when it deals with the metaphysical. But we will have that debate on another day.

I will address the rest of my comments to the points that have been raised by Metiria Turei from the Green Party in regard to clause 49, “Application to vary or cancel orders”. I challenge members of the Māori caucus to respond to the points she made, and the ones that I will raise, also, because they are good examples of the problems with the process. These are large alterations to the legislation. Quite frankly, I would rather have heard from submitters on the issues rather than having them debated in the Chamber in this manner, but since we are having the debate I think it behoves the Māori caucus members to respond to the concerns.

The Hon Dover Samuels will remember that when we were together in the select committee, we discussed these issues. We were concerned about how easy it was for a member of a hapū or iwi, or even a whānau, to be able to present themselves to the Māori Land Court and trade away customary rights orders without necessarily having the correct mandate. When we worked together on the previous legislation in the specially convened committee, in regard to the Māori Fisheries Act, it was the view of Mr Samuels—and I supported him in it—that we needed to make much tougher conditions on various mandated iwi organisations around the country before they could trade away their rights in terms of their allocation of fishery assets and so on. We made the conditions much more onerous, because we wanted to protect as much as possible for future generations.

I concur with and have sympathy with the points Metiria Turei raised. It still seems far too easy for someone to appear before the Māori Land Court and see those customary rights orders—which will take considerable effort to obtain—cancelled and traded away. I do not see why they need to be traded away, at all. I do not see why they cannot enter into an agreement with someone who wants to carry out an activity that may have an impact upon their customary rights order without necessarily trading the order away completely. Surely it would be possible for there to be a recognised legal agreement to enable an activity to carry on for the length of a consent period without necessarily removing it for all time. Therefore, if the activity ceased at some stage, or the resource consent that was granted for the activity expired, then the customary rights order would return to the hapū, the iwi, or the whānau, and they would be able to exercise it again. I ask a member from the Māori caucus to take a call in the debate—we are far from the end of the debate on this part, I hope—and respond to those concerns, because if there is a need for further amendments, I believe now is the time for us to address them.

I move, That the question be now put.

I have been attempting to take a call since 7 o’clock this evening. I want to take up the point raised earlier in regard to tikanga Māori. New clause 42, “Determination of applications for customary rights orders” states in subclause (1) that an order may be made “in accordance with the provisions of section 42A” if the activity, use, or practice: “(i) is, and has been, since 1840, integral to tikanga Māori; and (ii) has been carried on, exercised, or followed in accordance with tikanga Māori”, and “(iii) continues to be carried on, exercised, or followed in the same area of the public foreshore and seabed in accordance with tikanga Māori;”, and so on.

I share the same concerns that were expressed previously. I think it is inappropriate to have the words “tikanga Māori” here, because the definition of tikanga in the Historic Places Act, which is being referred to, is “Māori customary values and practices”. Those values can mean any number of things. We explored the definition of tikanga Māori during the passage of the Building Bill. In that legislation a building consent can be assessed in accordance with tikanga Māori if someone appeals and wants a redetermination of somebody else’s consent. In my view, that was absolutely inappropriate. Given the broad definition for tikanga Māori meaning “Māori customary values and practices”, which will have precedence? Will “tikanga Māori” have precedence over those matters referred to in new clause 41, given that if it is integral to tikanga Māori that is part of the determination for a customary rights order? Given the breadth of what that could mean, I firmly agree with the views expressed earlier that it is absolutely inappropriate for the term to be in a legislative document that the nation will be subjected to.

I also refer people to new clause 43, which talks about the effects of a customary rights order and identifies that a commercial benefit from carrying out a recognised customary activity under the order is able to be entered into. So a commercial benefit can be gained from that customary activity under the order. Perhaps the Minister would take a call and explain what that actually means, and how other people will be affected. Certainly, it is interesting to note that a commercial benefit can be undertaken.

In terms of the protection of wāhi tapu, I certainly agree that there needs to be respect for wāhi tapu in some instances. However, it is of concern when people in their largesse insist upon a wāhi tapu of metaphysical form and impose that cultural belief upon others in the exercise of their private property rights through a resource consent—and make claims against their private property rights in the exercise of a resource consent, costing those people thousands of dollars, with no real justification other than that a song may have been sung on that site. A private individual was just about bankrupted from going about his lawful business because of a song, claimed as a wāhi tapu. It is absolutely abhorrent to this nation that cultural beliefs are being imposed upon people who do not share those beliefs. It is an absolute travesty that is being perpetrated in law by this Government, and being constantly imposed on private property owners going about their lawful business. That has happened a number of times and has substantially affected people. I do not support having people’s cultural beliefs imposed on others. If people do not share them, they should not have them imposed on them.

In talking to new clause 43B with regard to wāhi tapu, I point out the provisions in subclause (3).

I raise a point of order, Mr Chairperson. I just wondered whether you had been able to see all the way to the back of the Chamber. Mrs Wong has been trying to take a call for quite some time. She does represent a specific constituency in this country, and I think her contribution on this part should be on the record. I know it is usual for the call to alternate from one side of the Committee to the other, but, given the make-up today, with all parties contributing, I do not think it would hurt to give two calls to this side, then perhaps conclude the debate on the part.

I think Mr Brownlee actually makes a very good point, and of course, this bill, in terms of its Supplementary Order Paper, is really a new bill. There is a solution, of course, and that is for the Chair to allow more speeches. I have to say, now that Mr Brownlee has raised the point, that Dr Muriel Newman has been in the Chamber all evening, as well. She also has a point of view to make and has not had an opportunity to speak. Of course, there is one solution that is quite obvious, and it would be a very parliamentary one—that this debate be allowed to continue and not cut off by the Government.

Mr Chairperson, you decide on who gets the call at the conclusion of a speech by a member standing up and seeking the call, and by you recognising that person. You do not determine who gets the call by way of points of orders from members who give an opinion on who they think you should call next. Members should now seek the call and you should decide on who gets it in that way, not by points of order.

Mr Chairperson, we have every faith in your ability to make decisions. Mr Hughes needs to recognise that yesterday, at a particular meeting that takes place around here, a very senior presiding officer indicated that extra time would be given on all these bills. So we are a little perplexed that the Government has decided to move to shut down the debate at such an early stage.

The CHAIRPERSON (H V Ross Robertson): I thank members for their contributions. I will decide when I take the closure motion. There are a number of guidelines I can use to make a judgment, and one of them is Standing Order 102.

I move, That the question be now put.

I would like to continue the theme that was brought up by my parliamentary colleague Sandra Goudie on the issue of customary values and practices. I guess, nowadays, a great number of New Zealanders do have respect for each other’s customary values and practices. But it does get difficult when it starts to form part of the legislative process. I was just reflecting on the Minister who is in charge of this bill, the Hon Michael Cullen, who, on the 150th anniversary of the New Zealand Parliament, criticised judicial activism. He was lamenting how Parliament passed legislation and the judges used their initiative to extend into areas that were beyond the intention—[Interruption] I suggest the Labour MPs will soon become Opposition members as soon as the election is held, and if they have something worthwhile to say they should take a call and explain that to the public.

I was just saying how the Hon Michael Cullen was concerned about judicial activism, and those who would not carry out the intention of the New Zealand Parliament after we pass legislation. But when we start to incorporate terms like “customary values and practices” that is when we actually start to relegate Parliament’s responsibility to the courts and let the courts make those decisions. Of course, customary values and practices are really difficult. I used to be in Canterbury, and I can assure members that Ngāi Tahu has certain perspectives of their values and practices, which will probably be different from some of the North Island Māori iwi or hāpu. So who, in effect, is going to determine that when it comes to incorporating terms such as “paying respect”, and “adhering to customary values and practices”? It is the courts. Is the judicial process going to be resourced to interpret that? What will happen if these customary values and practices change over time? We are raising very serious issues. Maybe the Minister in the chair, David Benson-Pope, would like to take a call and explain to the public whether the courts have developed enough common law cases to interpret and pay due respect. If we incorporate something in the law, can that be objectively implemented?

There may be grievances. When judges try to interpret the legislation, they may have more than one way of interpreting it. They may turn down a customary rights order and say: “That is not in accordance with that.” [Interruption] I suggest that the member take a call. I am not belittling Māori customary rights and practices. I am just commenting on how the law works when it is codified. Today we are incorporating that in our legislation, but what messages and what guidance will we give to our judges so that they will not interpret that contrary to the intention of the Parliament? How can anybody actually codify a set of customary values and practices? Do we have judges who are so learned? Do we have judges on the select committee?

Hon Dover Samuels: Why don’t you import some from China?

PANSY WONG: Here we go! Once again, whenever members cannot use the power of logic to debate the issues, they attack people by saying how recently they have come here.

I move, That the question—.

I raise a point of order, Mr Chairperson. I am not disputing in any way that decisions on closure are yours, but nothing in the Standing Orders states that members cannot draw things to your attention. I would like to have a reassurance from you that before you take a closure motion you will look at Speaker’s ruling 85/2, which is a ruling of our present Speaker and one I am sure you are aware of. Speaker Hunt states: “The form of drafting of a bill is a matter that the chairpersons should take into account in committee in deciding when to accept a closure motion.” The explanatory note states that a “Considerably longer debate would be permitted on a part with numerous subparts than would otherwise be the case.”

If you look at the literal meaning, Mr Chairperson, you will see that it is stating that chairpersons should take into account the drafting. I say to you that in my experience—and I have been here a little longer than most—I have never seen a bill that has been drafted in this way, where we have had a fundamentally new bill suddenly presented to us and then have been put into urgency. It would appear to me that Speaker Hunt’s ruling is a guide to the Chair that in this sort of circumstance there should be considerably longer time given than is usually given. I want an assurance from you, Mr Chairperson, that you accept that that is the way the Chair ought to deal with this debate.

I say that, partly to protect the rights of the minority, and partly to protect the rights of this Committee. It is undesirable that bills go through in this sort of way, and one way of making sure it does not happen again is by making sure that the Government does not save any time by cutting out the rights it otherwise would be able to.

The CHAIRPERSON (H V Ross Robertson): I thank the member for that consideration. I have looked at every issue. I have also considered the issue under Speaker’s ruling 58/8. I take the point; however, the ruling relates to a number of subparts.

I move, That the question be now put.

We now come to the amendments to the Minister’s amendments set out on Supplementary Order Paper 302.

I raise a point of order, Mr Chairperson. There are a number of amendments on the Green Party sheet that is available to members. Are the questions on those amendments to the amendments on the Supplementary Order Paper to be put before the question on the Minister’s amendments on the Supplementary Order Paper?

The CHAIRPERSON (Hon Clem Simich): That is exactly what we are doing. These are amendments to the Minister’s amendments set out on Supplementary Order Paper 302.

The question was put that the following amendment in the name of Metiria Turei to proposed new clause 35 set out on Supplementary Order Paper 302 in the name of the Hon Dr Michael Cullen be agreed to:

to omit proposed new subclause (2).

The next amendment is to clause 49 and is in the name of Metiria Turei. It is an amendment to omit words from the amendment to subclause (2), set out on Supplementary Order Paper 302 in the name of the Hon Michael Cullen. This amendment is out of order because a previous amendment was not agreed to. There is a further amendment to clause 49. It is also in the name of Metiria Turei. It is an amendment to omit words from the amendment to subclause (3), set out on Supplementary Order Paper 302 in the name of the Hon Michael Cullen. It is also out of order because a previous amendment was not agreed to.

The question was put that the following amendment in the name of Metiria Turei to the amendment to clause 50 set out on Supplementary Order Paper 302 in the name of the Hon Michael Cullen be agreed to:

to omit from proposed new paragraph (a) the words “or cancellation”.