Urgent Debates — Government Proposals for Seabed and Foreshore

I have received letters from the Hon Bill English, the Hon Peter Dunne, the Hon Ken Shirley, the Hon Richard Prebble, and Jeanette Fitzsimons to debate, under Standing Order 376, the announcement of the Government’s proposals for the seabed and foreshore. This is a particular case of recent occurrence, and given its importance I consider that it does require the immediate attention of the House. As the first application was received from the Hon Bill English, I call upon him to move the motion.

I move, That the House take note of a matter of urgent public importance. I suspect that the foreshore debate will go on the way it has begun, and that is without the leadership or guidance of our Prime Minister. In fact, the photo of the Prime Minister at the top of the mountain showed just exactly how much distance she intends to put between herself and this debate. In fact, it shows how much distance there is between her approach to treaty and Māori issues, and that of the wider New Zealand community.

When the Government talks about nation building, we have to wonder why it is that of all the Prime Ministers I can recall, Helen Clark has had by far the least to say about any issue to do with the treaty and Māori. I believe that the controversy that has arisen around the issue of the seabed and the beaches is in large part due to a failure of leadership by Helen Clark on these issues. I am getting more common sense out of the public meetings I am holding in Levin and Whakatane, and in Timaru tomorrow, than I have ever had listening to Helen Clark on these issues. Do members know why? It is because she just never talks about them.

Every leader of New Zealand has an obligation to talk to the wider public about what the Government story is on the relationship between the Crown and Māori, and Helen Clark has not done that. I will tell members what she has done instead. Instead, she has spent the last 6 or 7 years winding up Māori expectations about a partnership with Labour. What were they talking about all those years, if Māori are now angry and surprised at the stance Labour has taken? They certainly were not talking about the reality of New Zealand; they were talking about partnership. Labour and Helen Clark were creating expectations that in fact the relationship between Māori and Labour would be one of partnership whereby they would make joint decisions.

That bore no connection at all to the reality of New Zealand opinion, and in the last couple of months Helen Clark has finally figured that out. So I put the responsibility for the controversy, for the divisiveness, at her feet. Even now, she has really nothing to say. She has driven the bus up a dead-end, hopped off, gone mountain climbing, and left Dr Cullen to find reverse gear. He is the man who has to back out. He is the man who has to get together the formula to find a way back out of the cul-de-sac that Helen Clark put Labour in on the day that she panicked.

Within a week of the Court of Appeal decision, because there was a total vacuum of Government policy around these kinds of issues, as well as around the treaty, Helen Clark jumped the gun, and, without taking advice, came out and said that the title to the foreshore and the seabed lay with the Crown. That is what we always thought had been the case. Then what did she do? She backed off. She said nothing. She went overseas. She left an enormous vacuum. We picked up that concept that she had enunciated, and turned it into something that people could understand—beaches for all.

Well, then we got the usual Labour response—that was racist, that was divisive! Then the Government made an announcement, and that was the headline the newspapers used. Then Labour decided that it was great that 58 percent of the public supported it. That is the kind of two-faced approach to these issues that the New Zealand public is tiring of.

I want to come to the Government’s announcements themselves. As I pointed out, the Government labelled our position as racist and then tried to adopt it. The Government labelled our position as extreme and then tried to say that it was the middle road. Well, let us look at some of the details of this announcement. Why do we think ownership matters? Ownership of itself, as a term, is not what is vital. What is vital is what “ownership” means. In this case it must mean these things: that ultimate title lies with the Crown—it must mean that—and then it must mean that any rights and interests that are granted, are granted by the Crown. That is what it must mean.

It is still not clear whether that is what the Government means. I invite Government members to get up today and explain it. Does public domain mean, first, that ultimate ownership—ultimate title—lies with the Crown; and second, that it will be the Crown that decides what rights and interests then flow to anyone else? I invite Dr Cullen to answer that question.

Today I asked Dr Cullen a simple question based on the Court of Appeal decision. I know that I will be labelled racist for quoting Dame Sian Elias, or it may have been Justice Tipping, because it does not suit the Government. I ask whether the Government is going to extinguish indigenous title. Because most of the legal advice seems, to a layman like me, to say that it should be extinguished, and that to remove all doubt as to who does have ultimate title, and who does have control over the rights and interests, then indigenous title or the suggestion of it should be legislated away. The Government avoided that question.

I tell Dr Cullen that that is why there is uncertainty. That is why there will be continuing controversy—because Labour cannot answer a straight question in a straight, honest way. So here is a question: will ultimate title lie with the Crown; will the Crown control the grant of any rights and interests; and, for the removal of all doubt, will the Labour Government legislate away any suggestion of indigenous title? I want the answer to those questions.

💬 Hon Dr Michael Cullen: You don’t even phrase it correctly.

Well, we are all brand-new experts in the jurisprudence of sovereignty and the international law of the sea! The Minister should just answer the questions.

Here is the second thing the Government needs to do. It needs to ensure that Māori know what to expect with real certainty. The Government needs to do that, because up until now it has not succeeded in doing that. The Government raised Māori expectations, then dashed them, then got upset because there is some anger, and then tried to manipulate Māori opinion. I say that, out of good faith to New Zealand citizens who are trying to go through the due process with the 38 or 40 claims that cover most of New Zealand’s foreshore, the Government should be very clear, upfront about what Māori can expect.

It has done that in one respect. We know, because we believe at face value what the Government has said—that private title will not be issued to Māori as the result of a pursuit of customary rights and customary title. That is a good thing. We support that. Apparently, when we say it though, it is extremist and racist, but when Government members say it, it is a reasonable solution to the problem! That is how is works; we know that. But what about the rest of it? What about the scope of customary rights? What is happening here is that a whole new front of claims has been opened up—a whole Pandora’s box.

This is not like treaty claims, because the Māori Land Court will have teeth and power in a way that the Waitangi Tribunal does not. The court will recognise the right, and that right will be enforceable as against any other public or private interest in a way that the Waitangi Tribunal has virtually no capacity, except in one respect. The Government should define what the scope of those customary rights could be. It should not include development rights, it should not include commercial rights; and I want to make this point to the Government: neither should it include governance rights, because I can see the deals that are coming. Ngāti Whātua will almost certainly be able to assert a customary right of some sort over the harbour areas of Auckland. Under the Government’s proposal, there is a principle to regulate. I bet that the Government will seek to do deals with iwi by saying: “We will go into partnership to regulate. Between the two of us we will make the rules.” That will be tantamount to sharing ownership, and that is why the good doctor is smiling. He always smiles when his cleverness is uncovered, because he always wanted us to find it in the first place.

That is the cleverness. He will say: “You can assert whatever rights you like through the Māori Land Court, but don’t worry, Labour will do a deal with you over the regulating role, and that will be a partnership role.” Given the rhetoric that Labour has given to Māori for the last 6 or 7 years it will almost certainly have to go down that track. It will be extremely difficult for the Labour Party not to do that.

These issues can be resolved in the interests of New Zealand. I have been involved in a series of public meetings around New Zealand. I notice that the Government is not going to do any public meetings on this—it will do meetings with Māori, but it will leave everybody else out. People are speaking up in those meetings with passion for New Zealand, and not prejudice. They are speaking up in those meetings as fair-minded and forceful citizens of this country who want progress and unity. They are speaking up against a Government that has a philosophy of separating out the interests of Māori from everyone else. Members should bear in mind that the controversy over the beaches and seabed is just one part of the vast array of problems the Government is creating because it will not follow the guideline of one standard of citizenship.

If Government members hold public meetings in their electorates around New Zealand, as I am doing, that is what they will hear. They will not hear rabid racism, nor out-of-control red-neckery, but they will hear New Zealanders who are passionate about New Zealand, who know that we need to solve the problems, because we need to live together, and who want to do that in a practical and equal way that respects the rights and obligations of all New Zealand citizens, without creating special rights and special regard for one group.

The Government has a real challenge to bring this issue to a close, and the best way it can do that is to be honest with Māori and with the rest of New Zealand. When the Government talks to Māori it must be straight. There will be no more cash for votes. The underpinning principle of Labour’s policy has been cash for votes. It has not been honesty. The Government knows that the great majority of New Zealanders will not wear the philosophy of the Labour Party over treaty and Māori issues in New Zealand. They will not wear it. As soon as that is exposed to the light of day, the public will revolt against it. I am saying that Labour let Māori down when it misled them so much over the last 4 or 5 years about what it could deliver.

If the Prime Minister had the courage of her convictions she would say to the public what she says on the marae, but she never does. The other way Labour can take this issue forward is for Helen Clark, for the first time properly in her prime ministerial term, to have the courage to explain to New Zealanders where she thinks we are going and why she is taking us down a path of separatism, when the hundreds of people who are coming to my meetings and who talk to me in my constituent office want unity.

Of course, if the member ever had his constituency office open, perhaps he would speak to some people within it, but he is busy closing all the constituency offices around his electorate so he can listen to the sound of his own voice as the voice of New Zealand. That is the man who says that the public does not back the Government on those issues and the public is in revolt. There has been only one poll, and 58 percent public support. Those three parties over there are sharing 20 percent of the vote and that is even less than the miserable rump of the National Party manages to score in opinion polls these days.

That member is obsessed with the Prime Minister. It is tough for him that she is attending a police-cum-Māori collection of meetings in Rotorua today fronting up on difficult issues. This issue is about this nation and its destiny. Mr English’s adolescent slogans will not contribute to any solution in those areas. I have no objection to one standard of citizenship, but it does not have to be as low as his standard is for us all to participate in. At least if one could get the questions right, one might get some of the answers right, but that member cannot even get the questions right.

Like a true Tory, he is obsessed with ownership. He has to own something. That is what life is about for a Tory. It is about owning things that other people cannot own. It is not about sharing things. I ask him a question. If it is so important for somebody to own the seabed, how does he manage with nobody owning the sea? Nobody owns the sea, but we regulate it. But somehow we have discovered that we have to own the seabed to regulate it. Why? There is no legislation—I say for the man who is to appear in court soon—there is no legislation on our books that says the Crown owns the seabed. I want Mr English to find that statute for me.

💬 Hon Bill English: There isn’t one.

We have managed with a Parliament for nearly 150 years without the Crown owning the seabed. We have legislation that deems it to be vested in the Crown. If the member knows anything about legal language, that is not the same thing exactly as saying that we own it. It is not the same thing. It is not necessary. I do not own that member’s car. I would not want to own that member’s car. However, as part of the Government, I regulate how he can use it. I regulate all sorts of things about it. The Government can regulate the use of the foreshore and the seabed without the necessity for ownership.

It is a usage that is in people’s interests. Members opposite may not get this point. What average Kiwis want to know is whether they can go to the beach, which is not the foreshore, and when they get to the bit that is sometimes wet, which is the foreshore, they can use it. When they swim in the sea, they will not be hauled out by somebody saying that they are not allowed to swim in the sea. They are not worried about something called the Crown, and whether that is perhaps represented by some rather elderly lady in London, or represented by the executive of this country, or represented by the Crown in Parliament—which I think the member was trying to refer to when he talked about regulation, when he meant the Crown in Parliament itself, Parliament as a whole—they are not worried about who owns it. They want to know that they can use it. They probably have not really been worried in the past about who owns it, but the issue has been thrown up by the prospect of private title being granted as a consequence of the Court of Appeal decision.

This Government says, quite bluntly: “There will be no more private ownership of seabed and foreshore.” Simple! Who in this House disagrees with that? Well, that was pretty good. We have 100 percent vote in support of that proposition—for a start. Secondly, that we should all continue to have the access rights that we have had in the past. Who disagrees with that? Who disagrees that this is an area of public domain for the use of all New Zealanders, subject to regulation and control under Parliament? Who disagrees with that? Well, there are a few outside who do disagree with that. Some people say there is Māori sovereignty and that Māori own the seabed and foreshore, and should have the right to regulate that, irrespective of what Parliament says or does. The Crown rejects that proposition. The Government rejects that proposition, because the Government holds that Parliament is sovereign, not anybody else in New Zealand. That is a principle that needs to be asserted very, very clearly indeed.

The member tells us that he goes to these public meetings, which are full of “passion”. He is the only man who goes into a full room and stands alone by himself, on every possible occasion. The fact is that when he went to Levin they had to move from the main hall to a side room, and then claimed it was full up, when they had moved to that small side room. At the end of the speech a local Nat stood up and complained about Mr English’s leadership being all at sea, not about the issue of the foreshore.

The member makes another extraordinary claim. He says that partnership bears no relationship to the reality of New Zealand. Is the member really saying—as someone who has pretensions to be Prime Minister of a sort of odds and sods collection of everything that is not Labour in New Zealand politics, which is what he aims to be at some future date—that there is no form of partnership in New Zealand; that New Zealand Governments cannot work in partnership with Māori on certain issues—

💬 Hon Dr Nick Smith: It’s just a con.

If it is a con, why did that member, in Government, legislate for it in the Treaty of Waitangi (Fisheries Claims) Settlement Act of 1992? Why did his Government legislate for it in the Ngai Tahu Claims Settlement Act?

💬 Hon Dr Nick Smith: It doesn’t say much about that.

It does, indeed. The member had better read that legislation again. There are areas where there is partnership between the Crown and Ngāi Tahu in terms of management. That is clearly central to parts of the Ngāi Tahu settlement—as it indeed is to other settlement Acts within New Zealand. Now Mr English nods his head in agreement. The problem with Mr English is that he is more intelligent than he pretends to be, most of the time. He actually knows that New Zealand Governments do believe that they should practise partnership, have done so for a long time, and will continue to do so. To state that partnership is not part of the reality of New Zealand, is a highly dangerous assertion.

Then he says that rights and interests should be granted by the Crown. So he says the Crown should own the seabed and foreshore, and the Crown should grant those rights and interests. He is saying that it is not for the courts to decide what customary rights are; it is for the Crown to decide what customary rights are. So he has bought one big fight on ownership; he has now bought a second huge fight with Māori on that particular issue. Why? It will not achieve any purpose. It is not necessary for a satisfactory outcome of the issue, at all. He is doing it—and he may not like words I cannot use in this House—and he is deliberately being divisive on this issue. He is trying to leverage 20 percent of the vote upwards by appealing to divisive instincts in New Zealanders, rather than trying to bring them together.

Government member: Why?

Because he is simply not a big enough man—or for that matter a big enough woman—to bring New Zealanders together on these kinds of issues. He is a small man struggling with a big issue. Then he says that Māori need certainty about what they can expect.

💬 Hon Roger Sowry: You’re a nasty man.

When I am called “nasty” by that member, it is like being called a “murderer” by Jack the Ripper. The member now says we should limit what customary rights are, in advance of any—

💬 Hon Bill English: You said that.

No, I did not. I said the customary rights should not lead to the granting of freehold title. That is not the same thing as limiting what those customary rights are. The member, again, cannot understand some pretty important issues in this. So what is he going to limit? How is he going to define what those customary rights are, in advance of particular claims being made by particular iwi, particular hapū, by the Māori Land Court? He cannot do it. It is impossible to list exclusively what those rights may be. But if the court goes beyond what is reasonable, then they will be subject to legal challenge.

💬 Hon Bill English: Tell us how.

Because that is how judicial systems work. One takes one’s case to court, and if the court finds that one has proved it, it says yes. But if somebody else disagrees, he or she can appeal to a higher court—and there are higher courts than the Māori Land Court. There is the Māori Appellate Court, for a start. Māori know that. They know that, very clearly. They know, roughly, what sorts of things are going to be included within customary rights, but they say, absolutely properly, that they are particular to particular places, particular iwi, particular hapū, and particular whānau. It is up to them to demonstrate that to the Māori Land Court.

We further say, which is new, that the Māori Land Court should be able to declare ancestral connection for particular iwi, hapū, and whānau in terms of areas of foreshore and seabed. That is important in terms of who has to be talked to. If the Marlborough regional council had talked properly in the first place to the iwi with interest—if it had not had a racist mayor, and I will say that bluntly, because his comments, since this issue came up, proved that very clearly; and who was a New Zealand First candidate, and who has now been disowned by his own regional council on these issues—it is very doubtful that this issue would have happened this way. If there had been proper talking to at the local authority level in Marlborough it is very doubtful this issue would ever have arisen in the way it has. The lesson there is not to try to exclude people’s rights, right from the start, but to get into a position where one talks with them about what those rights are.

I remind Mr English that his position does not have support from the majority of New Zealanders. He has barely more support than the proportion who thought there should be private title over foreshore and seabed—20 to 18. He just beats out that option, which no one in this House wants to vote for or should vote for. We are engaged in a process of consultation. We will talk through these issues. The more we are talking, the more Māori are coming out saying that within what the Government is saying is a set of sensible ideas. As soon as Dover Samuels was attacked from the extreme—I was wondering at one point whether Titewhai Harawira was going to be the next leader of the National Party—the more key leaders in the far north came out in support of Dover Samuels. There is, I believe, a silent majority amongst Māori for a sensible solution in this area, which brings all New Zealanders together. But do not shove Crown ownership up people’s noses, as a means of provoking them. Do not—

💬 Hon Dr Nick Smith: Why did the Prime Minister say that?

She did not, actually. The member had better read the press conference transcript again. Do not, unnecessarily, indicate that customary rights are going to be trammelled in advance of consideration by the Māori Land Court. Recognise that these issues are common to all New Zealanders.

Do, in my view, reject those who say that only a proportion of this population are true New Zealanders and the rest of us are guests in our own land. I do not accept that, as a first-generation New Zealander, and I do not believe that any others of us in this House should accept that notion at all. If we talk through these issues properly, then I believe we can arrive at sensible solutions, and will do so. But it will not be done by putting up large billboards and sticking five-word slogans across them, and hoping that somehow or other that is an answer to a historical challenge, which that member opposite has failed—yet again.

During the course of Dr Cullen’s contribution he denied that the Prime Minister had said that the Government would legislate for Crown ownership. I seek the leave of the House to table an article in the New Zealand Herald of 24 June.

💬 Mr SPEAKER: Leave is sought to table that article. Is there any objection? There is.

This is a case of Huka Mā me ngā whena e whitu, or Snow White and her seven dwarfs. Do members know who the seven dwarfs are? The seven dwarfs are absolute lions on the marae and lambs in caucus. They are the ones who told Māoridom that they were going to close the gaps, and that when they had the support of the Māori people again—having had that since the 1930s—they could be trusted. Of course, we all know who Snow White is. She handles only those issues that make her look good, and on any issue that requires prime ministership, direction, leadership, or statesmanship she wins by a hundred yards—she is gone, and one cannot see her for dust and small pebbles.

I want to remind people of what the historical perception has been since 6 February 1840, when it comes to the issue that we are speaking about today. I am amazed by the level of passion that seems to be arising in this debate today—as it has arisen around the country—from certain politicians. I can see why they have so much passion about it. Their fingerprints are all over this growing mess, and it has been that way for the last 18 years. They know that they are to blame for it, but they hope that the public has no memory of that. I am referring to the leadership of all the political parties except one. I am talking about all those who run the political parties, with the exception of New Zealand First, which has a consistent record on this issue. As Māoridom sees that unfold, it will come back to us at the next election.

💬 Clayton Cosgrove: Ha, ha!

Members can laugh now, but it will be kāo, kāo, ka awatea—it will be morning time again. They will wake up in 2005, wipe the sleep from their eyes, and realise how they have been let down by the seven dwarfs and by the Labour Party itself.

The Labour Party is just like a used car salesman—there is plenty of pre-sales talk, but no after-sales service, and Māoridom knows that. Let me ask those Māori who are here in the House today whether they have heard about closing the gaps lately. Oh, no, the Government has dropped that like a hot kumara, because in making that much-vaunted boast it was required to pass the test of Māori examination, and it has failed abysmally. Instead of Government members saying they had to fix that, the Government has just dropped the slogan.

The perception from 1840 all the way to June 2003 was that the ownership of the foreshore and seabed lay with the Crown in this country—and members should note that I use the words “the Crown”. The Crown is beloved of Māoridom; it is something that Māoridom understands.

Māoridom has never heard the creeping socialist, republican words “public domain”. Today the Deputy Prime Minister described the Queen of this country as a little old lady in London. Where is he from? [Interruption] Well, I cannot possibly repeat that phrase. We do not need an import to start dancing all over the constitutional provisions of this country. Helen Clark is anti-monarchist; she is a republican. She cannot get her way, so she does it by stealth, and now she is trying to ram the phrase “public domain” down the throats of the public and of Māoridom.

Let me say this, also. As a consequence of our international treaty arrangements, we have gone from being a country that owns up to three miles off shore to one that owns 12 miles, and then to one that owns 200 miles, which has all been conferred by an international treaty. On whom was that conferred? It was conferred on the Crown and the people in this country who are under the Crown. That is what we thought the arrangement was. I know that that was the arrangement when other countries conferred that upon us. Then, in 1993, we had the Te Ture Whenua Maori Act, which was supported by Labour and National—their fingerprints are all over it.

The Hingston decision is worth reading, because of the critical issue that the judge raised. In essence, he stated that despite the case not being a Treaty of Waitangi matter, and despite it being about British law and rights and origins going back to before 6 February 1840, the key issue was the successive policies of Labour and National Governments. So there we have it. Their fingerprints are all over the issue, but they want to deny that. Labour and National are out there trying to say to the public that they should trust them to fix it. Any Māori who believes that must be a very generous person, with a very beneficent soul, because Māoridom has known for decade after decade that Labour promises the world and offers nothing. I ask members to name just one thing that the Labour Party has done for Māori recently.

💬 Hon Dr Nick Smith: Māori television.

Māori television. I ask members to name one Māori who has got a snapper or a job from Labour—and I do not mean those people who are working in the treaty industry; I am talking about the mass majority of beneficiaries for whom those claims were made in the name of all Māori. I have never seen such a generous people as the Māori people. Māori have gone out and backed Labour members, even though they have been such appalling representatives.

What did Heta Hingston state? He stated that the key issue was the view and policies of successive Governments, and he is wrong right there, because in the court of law one judges the law, and not Government policy. Where does one find Government policy when it comes to this issue? On the day that this issue broke, on 24 June, Helen Clark said that the Government would pass legislation to give clear expression to the Crown’s ownership of the seabed and foreshore for the benefit of all New Zealanders. Did members hear the words “Crown’s ownership”? Then, of course, it all hit the fan. Where is Helen Clark? She has gone. She has done a vanishing act and disappeared. Last Monday she said nobody owns the seabed and foreshore—how is that? Then she said it was a matter of public domain. Who is this Blackstone of New Zealand law whom we have just heard about? The Blackstone of New Zealand law, from the “pol science” department at Auckland University, is Helen Clark, who is backed up by her history teacher from Otago University, Dr Cullen. This is not leadership. It is not direction, and it is not prime ministership.

New Zealand First intends to go out and consult widely with Māoridom. We will not have a jack-up meeting in a hotel; rather, we will consult widely with Māoridom. We know that Māori will come out in their thousands because we can be trusted.

💬 Government Members: Ha, ha!

I can see the Government is nervous, because the last polls showed us rise 8 percent in the Māori vote alone, and we will have risen another 8 percent next time, and 8 percent more after that. The Government will be history. We will go out there and consult Māoridom, and we will have our answer ready, as we have it ready now. We will ensure that Māoridom supports this paper, and we bet that every right-thinking, sane-thinking New Zealander will support it, as well. When we have done that, all that will remain will be for the Māori people, along with the rest of New Zealand, to come out and restore to Government a party that does keep its word on these issues.

Last Monday, the Government announcement on the proposed ownership of the foreshore and seabed of New Zealand created a political vacuum. Nature and politics hate a vacuum. We now have massive uncertainty and anxiety, and confusion reigns. Rather than make matters clearer, the Government’s announcement on Monday added to the confusion.

In considering this issue, the ACT party has two guiding principles. Firstly, ACT supports the sanctity of property rights—all property rights and all forms of property rights—and, secondly, ACT believes in one law for all. We all have common rights and responsibilities before the law. I, and the ACT party, call upon the Government to explain certain things. I ask the next Government speaker in the debate to answer some of the questions that have been raised. First, why did the Government change its mind? We have just had a very spirited speech from the proxy Prime Minister, Dr Cullen, but his position was totally opposite that of the Prime Minister and the Attorney-General just a few weeks earlier.

Following the Court of Appeal decision in June the Government moved very swiftly, and a lot of New Zealanders said: “Thank goodness. Hurrah for that.” The Government—the Prime Minister and the Attorney-General—came out immediately, on the Monday after that court decision, which was delivered on Thursday, 24 June, and asserted Crown ownership of the foreshore and seabed. The Hon Nick Smith tried to table that very statement in the House earlier today, and was denied leave by Government members. The Deputy Prime Minister has just claimed that the Crown and the Prime Minister had not asserted ownership. They certainly did assert it, and then what happened? They changed their minds. Why did they change their minds? It was because the Māori Labour caucus went into revolt. The Māori Labour members issued a statement. There were all sorts of extremes within it. Tariana Turia claimed absolute Māori sovereignty and ownership, while at the other end of the spectrum the more sensible member, John Tamihere, called for reason and caution, and tried to hose it all down.

Essentially, the Māori Labour members were whipped up by, and responded to, the expectations of Māoridom, and those expectations are still quite dramatic. I draw the House’s attention to the comments of Matiu Rei. He is a rational and a very reasonable man; I would not call him particularly radical. He is a fine, upstanding gentleman. Matiu Rei is a spokesman for a number of iwi on the foreshore issue. His expectation was published in the Dominion Post last Saturday. It read: “Our customary rights in respect of the coastal marine area include, but are not limited to, self-governance (control, regulate, manage, and allocate), development (both in a cultural and economic sense), exclusivity (being able to exclude in accordance with tikanga, ie rahui), use (in its many forms) and access.” That is absolute ownership, and it cannot be called anything other than that. It is an example of the confusion that reigns on this issue.

The Crown initially took a strong position and asserted Crown ownership, but then backed down almost immediately and issued a statement last Monday that the Government will now legislate to provide that no one owns the foreshore and seabed, and it is what we call the public domain. I ask a Government member to rise to his or her feet in this debate and to explain to us the difference between “public domain” and “Crown ownership”. We are all part of the Crown. This is the nonsense of partnership. In 1840 two parties came together: Māori, represented by their individual chiefs, and the Crown. But from the day that the treaty was signed, we were all one before the Crown. That was what Hobson told every chief as those chiefs signed the treaty. He said we were all now one under the common Crown. The Crown is us, and we are the Crown. That is the nature of sovereignty.

We have dug ourselves into an incredible situation, and the foreshore and seabed debate almost epitomises the confused path that one goes down, when saying that one has, somehow, a partnership of governance. Split sovereignty is not possible. No society has succeeded on the basis of split sovereignty. It is sophistry. What the proxy Prime Minister, Dr Cullen, is telling us is absolute sophistry, and he knows it. He cannot explain the difference between “public domain” and “Crown ownership”. Who will regulate and control the use of the beaches and foreshore? Who will issue the permits for moorings, harbour boards, boat ramps, or aquaculture? The Crown must do that, and in order to do that it must assert ownership—ultimate title—otherwise it has no basis to do that. The challenge for this Government is to stop trying to have a bob each way, to quit the sophistry—it is clear and evident to the whole country that it is sophistry—and to come clean and tell us what “public domain” actually means.

There are a number of other issues that need addressing. One is the anomaly with regard to the Rotorua lakes. The Attorney-General, Margaret Wilson, representing the Crown, is right at the point of transferring the ownership of the lake beds and the lake foreshores of 14 Rotorua lakes to Te Arawa. The Government is right at the point of signing that; it is a done deal. What is the difference between those lake beds and foreshore and the coastal seabed and foreshore? The public has the same right and expectations of public access over that domain for a wide range of recreational and other pursuits—it is no different from the coastal foreshore and seabed. So can a Government member explain how the Government can say that no one owns the coastal foreshore and seabed but, somehow, ownership of lake beds and foreshores can be transferred, when, essentially, the issues are the same? That is the challenge for this Government to address.

The other aspect that ACT feels very strongly about is the issue that anybody should have the right to test, define, and determine his or her property rights in a court of law. I uphold that right. Possibly, there is some form of customary use right. That is what Heta Hingston determined and what the Court of Appeal has upheld. Māori should have the right to determine and to better define what those customary use rights might be, in terms of the foreshore and seabed. I am not frightened by that, and I do not think any New Zealander should be—I think customary use rights will be much more limited than some people may think. But that raises the issue of whether we have a balanced, an impartial, and a competent Māori Land Court, or whether it has become an imbalanced court that is stacked with a particular agenda. I offer that as a question. If the latter case applies, we have a bigger problem in this country. If we cannot trust the integrity of the courts and the judiciary, and cannot trust them to be balanced and impartial, that is a much deeper problem that should concern us all.

I ask Government members whether they have faith in the impartiality, balance, and integrity of the Māori Land Court—yes or no? If they do not have faith in it they had better do something about that, as they are the Government of the day, and if they have faith in it we should trust the courts. That is really what this issue comes down to. A political vacuum has been created, confusion reigns throughout the country, and the Government must explain the vacuum that it has created.

The last few weeks have seen the biggest political beat-up on Māori that I can remember. Fear has been whipped up out on the streets by Opposition parties—and indeed by the Government’s own support party—as a political weapon in a calculated and despicable campaign to spread misinformation and hatred. That has done immeasurable damage to our evolution as a nation.

The Greens believe we must bring out into the light the shadows of racial distrust and fear that have been magnified by this debate. Only by shining a light into those dark corners, and by naming and facing those fears, will we be able to move past them. Which New Zealander would not feel rage if he or she is provoked by the thought of losing the chance to walk on the beach or to go for a swim? What easier way is there to make all New Zealanders afraid of their neighbours, and angry to defend their rights? How easy, then, it is to pose as the defender of those rights. Political campaigns are always easily built on the manipulation of fear and the construction of a common enemy. So we have been confronted with imaginary images of Māori blocking our way to the beach, charging us for access, and fencing the beach off with barbed wire. That complete and utter fabrication has taken hold in vulnerable people, who have begun to hate their neighbours.

But there is not a shred of evidence that that will occur. Not a single politician has offered any evidence of that, and tangata whenua have said again and again that open access is within customary law. In fact, we all enjoy access to the shores of Lake Taupo and to Tokomaru Bay, where tangata whenua do have recognised legal title. The Ngāi Tahu settlement recognised mana and recognised title to reserves and lake beds, while providing for public access and for good conservation management.

As a nation New Zealand was founded on the notion of coexistence, not conquest. Over the years we have not lived up to that. There are many hopeful initiatives going on to try to recover that dream of the two-hulled waka, but there is deep-seated suspicion to overcome, and those initiatives have been set back seriously by this stupid campaign. With the publication of the Government paper, the talk now is all of legal solutions, court determination of title, and negotiation of rights, but there is no point in talking about outcomes and solutions until we have a relationship to build them on. If the quality of the relationship between Māori and Pākehā, and between the Crown and iwi, is so soured that there is no trust but only fear and suspicion, then no good outcomes are possible.

The Greens do not believe that recognition of customary title needs to undermine recreational access to the beaches, and that is what Māori have said, too. We have two different cultural traditions here, which can coexist side by side if the relationship is right and there is goodwill. If the relationship is bad, no amount of legislating will fix it. People of European descent have a long tradition of the commons—what the Government paper calls “public domain”—meaning land that was owned collectively for the benefit of all. It was available for economic use, like food gathering, and for the enjoyment of the whole group, but no one could break it up and sell it. That is how we have seen the beach throughout our history. Māori customary title was not very different from that. It was, and is, a collective right, held under the principles of tikanga, with an emphasis on use that preserves the gifts of the sea and shore for children and grandchildren. It conveys mana and the obligation of kaitiakitanga, but it could not be individualised or sold—and nor should it be now.

It is important to realise that Māori customary title could only become alienated when Pākehā law interfered and imposed Pākehā forms of ownership on top of it. The Māori Land Court was designed to separate Māori from their land, by changing their customary collective title into freehold title for sale. That should not happen to the foreshore and seabed. Those who are clamouring for legislation to establish Crown ownership had better reflect on this: do they really think that that would protect the commons better than Māori customary title? We have had nearly 20 years’ experience of what can happen under Crown ownership. We used to think we collectively owned the railways, the BNZ, the leasehold land in the high country, and the plantation forests. Māori customary title is arguably less threatening to Pākehā access to the beach than Crown title, which, under a future Government, could be sold to private owners who really would exclude others. So there is no reason that two sets of customs and two sets of rights—complementary, but overlapping—should not coexist. But first, we have to step back from our fear and build a relationship. That means listening, and understanding what is important to each other.

The Greens are very relieved that the Crown has stepped back from its initial proposal to legislate to establish Crown ownership. Establishing exclusive Crown title would, in our view, have been a confiscation and a treaty breach. I am appalled that some members of this House still advocate that. We do support the legal establishment of public access, provided it sits alongside the recognition of Māori customary rights. We are glad to see the resurrection of the concept of the commons, which has been largely denied in our individualistic society, but we are concerned at the downgrading of customary rights to merely “interests”. That does not adequately express the strong identification between a hapū and its coastal area. We are concerned at the suggestion that tangata whenua will have to go to the Māori Land Court to codify their interests and to have rights awarded to them. Where customary rights exist, they exist now. They do not exist by virtue of a court decision, but by aboriginal title. If every use claimed by a hapū has to be codified by recourse to the court, we will have a legalistic nightmare. We do support recourse to the court where necessary to resolve disputes about customary title, but not to establish every use right that goes with it.

Perhaps the hardest principle for many New Zealanders to accept is that customary rights include a role in the decision making. If tangata whenua establish that their customary rights have been exercised since 1840 and still exist, it is just not good enough for the Government to take for itself all the decision-making power about the management of that piece of the coastal area and to subject the local hapū to consultation. The only long-term future for a bicultural nation is to develop models of co-management. Shared decision-making, which will not exist everywhere, will be based on different models in different places and will take time to build, but it will be an exciting journey. A few models are starting to emerge. Some regional councils are starting to involve tangata whenua inside the decision-making process, rather than just treating them as another interest group to be consulted. We need more of those models.

Customary rights also include rights to commercial development, as the fisheries settlement has already recognised and provided for. In some ways that is easier to resolve, because commercial rights operate under the same legal system for both Māori and Pākehā, and can be resolved by an agreement on how to share the resource. Why should there not be a sharing of coastal space within aquaculture management areas for marine farming, just as there is a sharing of fish quota?

It should not alarm us that the outcomes are still not clear, as long as we have the starting principles right, but what puts the hope of building the two-hulled waka at risk is a 6-week consultation process. Building a robust building platform will need longer than that. The eagerness to row hastily and to tie things up in the ropes of legal security is of less enduring value than making provision for the selection of the right planks for the agreement.

On Saturday I farewelled a very loved old friend, who had died far too young of cancer. It was the first tangi for a Pākehā ever held on the Kaiaua Marae. It challenged both sides. It challenged Ngāti Paoa whanaunga to accommodate some Pākehā custom on their marae, including some people who did not understand tikanga, and it challenged Stella’s friends and family, who found a marae to be an unfamiliar place where they did not feel entirely comfortable. But I think that was deliberate, because much of Stella’s life had been about challenging us to get outside our comfort zone and to listen to each other. Maniapoto had come the day before to pay tribute, because Stella had been instrumental in the return of the Waitomo Caves to the iwi, and she had also helped and challenged the iwi to manage them in a sustainable way. So there we have another example that everyone accepts of Māori title, public access, Māori economic development, and environmental protection all working together because people had built trust and goodwill.

Around 300 people gathered from both islands at Kaiaua Marae for Stella’s tangi. Te reo and English mingled in the ceremony. A few metres away were the foreshore, and then the seabed, of Tikapa Moana—the Firth of Thames. It is centrally important to Hauraki for kai moana, to Pākehā for many kinds of recreation, and to the godwits that fly there every year from Siberia. That marae is the place where, in 1874, the chiefs of Hauraki gathered to discuss issues around the foreshore and seabed.

The debate about the future of New Zealand’s foreshore and seabed is probably one of the most important debates that we will have in this Parliament. It is important for two reasons. The first relates to the particular resolution of the issue before us, and is secondary to the second reason—secondary both in order and in importance—which is that the way we address and resolve this issue will say much about the way that we will move ahead as a nation.

This country stands very much at a crossroads. It is a crossroads forged by this country’s having to look at its history, and now, to contemplate its future. It seems to me that over the last couple of decades we have become quite adept at looking at our history and drawing every conceivable lesson imaginable from it. But we are far less adept at considering the implications of that history for our future. While the process of fronting up to events in our past that we may not be proud of, or that have been divisive or confiscatory, has been important, it is equally important that we do not now become trapped in a frame of mind to the extent that this country becomes simply about “us” and “them”—whoever “us” and “them” may be.

There is no future for New Zealand in a nation that is divided. There is no future in this country for a people who feel that different standards apply to different groups—geographic, ethnic, age-related, or whatever those groups are. That is the true significance of this issue. If we accept the proposition now being advanced by the Government by way of a resolution of the issue—a good starting point, I think—which is that the foreshore and seabed are, depending on the terminology used, “the public domain”, or the property, in that loose sense, of us all, and that the new concept of “we, the people” is becoming important, then we need to start to think through the implications of that.

I reject the comments made by the previous speaker that any attempt to debate these issues openly and fearlessly is somehow engaging in—and I am not sure whether this is the term she used; it was certainly the inference I drew from her speech—racial hysteria or racial division. If we have become so frightened in our country of talking openly about issues that affect us all and the futures of us all, then we are in a very sad state. One of the things that have been quite useful as this debate has proceeded over the last few weeks—and I have experienced discussions with a large number of New Zealanders in every walk of life about it—has been the tone of the debate. The tone has not been one of bitterness or of anger; it has been one of sadness. How has this country got itself into this position, in which we are on the verge of starting to tear ourselves apart? Part of the reason we are on that verge is that we have been too unwilling for a long period of time to confront these issues, for fear of the sort of label that was imposed upon us by the previous speaker. We have to break out of that. Whatever our particular viewpoint, we have to break out of the straightjacket that means there are certain taboo subjects we cannot dare venture into, for fear of treading upon a racial landmine. That is not the spirit of New Zealand. It is not the way forward, and it is not the way that we will resolve this issue.

Let me come back to the concept of the public domain. As I said, I think it is a useful starting point. I say that a little tentatively, because that is exactly the way I feel. But the notion that it tries to capture, in my view, is that every single one of us in this country has some indefinable part of our birthright recognised on the foreshore and seabed. Every single one of us has an equality of right of access to, and enjoyment of, those particular areas, and, if that is so, then it follows that every single one of us, in an indefinable way, has a sense of ownership of the foreshore and seabed. We may choose to define ownership in different ways, but the reality is there: we all have a stake in their ownership.

For 163 years that ownership stake has been represented by the entity we know as “the Crown”. In the absence of anything else, it is very difficult to move on from there. I accept the point the Deputy Prime Minister makes about the sensitivity of the meaning of that word. That is absolutely true, but it does not remove the reality. Things do not exist in a vacuum. There are sensitivities and they need to be addressed, recognised, and accommodated, but they are not accommodated by pretending they are simply not there.

That is why I come back to the phrase “the public domain”. Maybe what we are starting to do in New Zealand—and I think it will be a good thing if we are—is to recognise that one or two of our concepts are a little outmoded. The irony of referring to the Crown is, as my colleague Gordon Copeland points out, really that until the late 1980s and the financial reforms underway at that time we did not talk about the Crown. Instead, we talked about the public sector—the Public Finance Act and the public balance sheet. Now, the notion of “the Crown” has been imposed upon us to try to reflect our statehood. So the notion of “the public domain”, “we, the people”, or “the people of New Zealand” is equally relevant.

My point about where-to-from-here is that, if we are to start down the path that the Government solution proposes, we must recognise that whether we call it “the Crown”, the “people of New Zealand”, or “the public domain”, or whatever other term we use, we, the people—all of us—have a stake in the solution, because all of us have a stake in the ownership of the territory that we call New Zealand. I say “ownership” in the broad sense, because it does mean different things to different people. If we accept that proposition, then I believe we are part of the way towards a solution. But there is still quite a gulf to get over before we even get to that point, and I want to bring up a couple of other matters that get in the way of getting there.

We are talking about providing for the Māori Land Court to give some flesh to the bones of customary title, customary use—although that is probably secondary, now that the fishing settlement has been made—and customary access. My concern about that is that the absence of a specific definition potentially creates a situation whereby the Māori Land Court, ruling in the way that courts do, could rule in a way that completely subverts the process we are attempting to undertake by means of the first part of the solution. So when we talk about the public domain, we could well find definitions applied by the court to title, to use, and to access that cut across the concept of the public domain as something indefinable that is held by us all. That is why I say we need to have far more work done on clarifying those definitions—preferably by this Parliament—before we can proceed further down the path that is being embarked upon at present.

This is the start of a journey. It is an important journey, and over the next few weeks New Zealanders of good will from every political flavour, and from every other flavour in New Zealand, must come together to work for the common good—the common weal, which, again, is a variation of the term “the public domain”. If we do not do so, then not only will this issue fester but, contrary to the previous speaker’s assertion, we will send a message far and wide that the great New Zealand dream shared by all of us—of being a nation in which people of different backgrounds, different cultures, and different histories can come together and live in peace, harmony, and common spirit—will have been shattered. That is not the future I want for New Zealand, and it is not the future that I can see this country going down.

The reason we have such a mess over this issue of foreshore and seabed is because there is a vacuum of public policy from the Government about how we deal with treaty and other issues with regard to the sort of nation we are going to be. The responsibility for this mess rests firmly and squarely with the Prime Minister, who consistently refuses to engage with this particular issue.

If we are to make progress, we need to start with the principle of straight talking. One of the most telling parts of this debate was when we asked the Government the difference between “public domain” and “Crown ownership”. It did not know, it could not answer—it almost implied that they were exactly the same. The honest truth is that we do not know. This document put out by the Government last Monday is not a policy document; it is a public relations strategy. The Government has a political problem, so it puts out a load of spin rather than tell people what they want to know. [Interruption] Would Mr David Benson-Pope please explain the difference between “Crown ownership” and “public domain”?

💬 David Benson-Pope: Read the document.

I have, Mr Benson-Pope. I have read the document from absolute back to front. The answer is that there is no difference.

💬 Darren Hughes: Did the member need legal aid?

It is interesting that the member opposite takes pleasure in me standing up for a Māori mum and dad having custody of their own child. He thinks it is funny that I stand up for that. It is so typical of Government members’ approach to anybody that questions them.

For the last 7 weeks, the Mayor of Marlborough has been expressing concern about the foreshore and seabed issue that started in his district. For weeks, the Prime Minister said that was perfectly responsible, and she understood what the Mayor of Marlborough meant and said. But when the Mayor of Marlborough criticised the Government’s sloppy document, what do we get from the Deputy Prime Minister—“He’s racist!” Do members see the pattern? If anyone dares question the Government, then it will adopt nasty bullying tactics. What the Mayor of Marlborough said prior to that was all right, but the moment he said that this was a sloppy, unacceptable package, suddenly the Deputy Prime Minister of New Zealand labelled him a racist. That is an interesting approach, is it not? Whatever happened to the close partnership between the Government and local government? If local government questions it, suddenly, it ends—as we have seen with the appalling attack today by the Deputy Prime Minister on the Mayor of Marlborough.

Let me come to the substantive point. If there is no difference between “Crown ownership” and “public domain”, then why the change in language? It is because the Government wants to con Māori. It is so dishonest with Māori that it is not prepared to say it the way it is. “Public domain” is just a piece of sophistry and a euphemism for “Crown ownership”. The Government cannot point out to anybody the difference between “Crown ownership” and “public domain”.

We in the National Party are not prepared to play those sorts of games of sophistry with the tangata whenua. If we are to grow up as a nation, we need straight talk. We do not need word games; we need to say what we mean to the people of New Zealand, and mean what we say. If “public domain” simply means “Crown ownership”, why does the Government not have the courage to say what it means?

The ASSISTANT SPEAKER (H V Ross Robertson): The member cannot challenge the Government’s courage.

I would like to know from the Government whether “public domain” means “Crown ownership”. If it is no different, let us say it the way it is. Why do we want to play silly word games, if legally they mean exactly the same thing?

It is interesting that when the Mayor of Marlborough says that the Government should legislate for Crown ownership, he is called a racist. What about when Margaret Wilson told this Parliament on 24 June: “The intention of the proposed legislation is to give clear expression to the Crown’s ownership of foreshore and seabed for the benefit of all New Zealanders.”

💬 Darren Hughes: Read the proposal.

Do the members opposite stand by that? It is interesting. Can we no longer rely on the word of the Attorney-General when she says in this House that Government policy is Crown ownership? What has changed?

💬 Clayton Cosgrove: Read the document.

I have read it all the way through, Mr Clayton. It is a Clayton’s document—I suspect you probably wrote it.

The ASSISTANT SPEAKER (H V Ross Robertson): The member must not bring the Speaker into the debate.

The member opposite says that I should read the document. I have read it from page to page, and it does not answer the question.

💬 Clayton Cosgrove: Read it again.

I ask the member this question: what is the difference between “public domain” and “Crown ownership”?

💬 Clayton Cosgrove: Read the document.

But the answer is not anywhere in the document. The member opposite should get up and answer those questions.

Week after week we had: “Next week the Government will announce its policy.” Finally, we get a document that does not answer any of the key questions. Let me put some of them to the Minister for Land Information. I know he has a problem with statistics and facts, but maybe he might be able to help us. In Nelson, we have 4 hectares of reclaimed land. It is sitting vacant because no one can get title. Under this proposal, will the Ports of Nelson be able to get title to that area of reclaimed land? Can any Government member answer that question?

💬 Hon John Tamihere: More legal advice. We get plenty of it now.

Oh, I see. Mr Tamihere, the Minister for Land Information, who no doubt has had a big input into this policy, cannot answer me that question. [Interruption] It matters a huge amount because companies in Nelson want to be able to build buildings and create jobs. There is a smell-reduction factory owned by Sealord's—a Māori-owned company—that wants to do that. Even after 7 weeks the Government cannot provide an answer to that fundamental issue. Over 1,000 buildings exist on areas of foreshore, such as the Boatshed Restaurant—very well known in Nelson—so who will get the rent? Can the Government answer me that?

💬 Hon Member: No one.

No one will get the rent! The Boatshed will be delighted to know that it does not have to pay any rent. Is that right?

💬 Hon Brian Donnelly: Yes.

Can the bright young member for Kapiti Coast tell me whether the Boatshed will still have to pay rent? [Interruption] What about the other thousand people who have leases and licences to occupy areas of foreshore and seabed? Do they pay rent? [Interruption] After 7 weeks the Government distributes a discussion document and cannot answer even those fundamental questions. That gives us some idea of the farce the Government has produced with respect to this issue.

If the Government cannot explain the difference between “public domain” and “Crown ownership”, it is exploiting Māori in some of the worst ways I have ever seen in this Parliament. It is producing a con. It is saying: “Oh no, we will not have “Crown ownership”; we will have “public domain”, but there is no difference.” That is not the way to treat any group of New Zealanders, let alone the Māori people. I say to Government members opposite—what a disgrace! They have to do better than that; they have to be able to answer those questions. We need a clear policy, not a public relations exercise. The foreshore and seabed of New Zealand is what makes this country great. It is our greatest recreational asset, and the source of huge wealth.

The last question I want to put to the Government is what specific rights will the Māori Land Court be able to give exclusively? We need answers to those questions, because the issue does not stand up to National’s one standard of citizenship for all New Zealanders.

E te Kaihautū, e te whakaruruhau ki a mātau, Ross, tēnā rā koe. E tū ake au ki te mihi nunui ki a koe e te rangatira Russell, nō reira, i tua o te ārai kua whetūrangitia, tēnei i mihi atu mō te tamaiti kōrua. Ā, moe mai, moe mai i te moenga roa, te uri a Russell. Nō reira, aroha ki a koutou. Mō te whānau pani, kia kaha, kia toa, kia manawa nui.

[To you, Mr Speaker, Ross Robertson, the one who shelters us, greetings indeed to you. I rise to extend respectful condolences to you, Russell, in the tragic loss of your twin granddaughters. To the descendants of Russell, sleep and slumber there. Sleep the long sleep. Therefore, much sorrow to you all. To the grieving family, be strong, be brave and stout of heart.]

Before I commence my contribution to the debate, it is very important that we acknowledge those who have gone before us. Today I make a special acknowledgement of one of our dear colleagues, who is at home in Napier today. I acknowledge Mr Fairbrother’s loss, and that of his family. We wish them all the love and strength we can over the next wee while as he and his family handle their difficulties.

In debates like this we look around this hallowed Chamber and see carved into its walls the names of many battles in which many of our ancestors fell as underwriters of this nation’s greatest attributes. We are proud of them, and of the loss they bequeathed to us, but, more importantly, we must always remember the chapter in the nationhood story for which they paid the ultimate sacrifice. I entreat members to read a pamphlet written by Sir Apirana Ngata, a member of this House in 1943. It is called The Price of Citizenship, and it was written off the back of the number of times he had to tell his nieces that his nephews would not be coming home. The reality of our nationhood story is that much has happened that we should be proud of. Obviously, things have happened that we should not be proud of, but notwithstanding that, on behalf of the people I represent, I say that we have given much and contributed much. On the way forward, we must be factored into the equation.

At the end of the day, all title in this country traces itself to Māori customary title. That is a fact. No one can obtain a title in this country unless he or she can trace back to a title investigation case under the Maori Land Act and out of the Native Land Court of 1865 onwards. The whole title system in this country is founded on customary rights. That is a legal fact, and it was laid down in a number of pieces of legislation out of this House. Customary rights underpin Kiwi nationhood, and they are customary Māori rights, not customary Westminster rights. If we understand our history, we will not be bequeathed its mistakes. The reality is that there is a huge bevy of precedent and law based on customary rights. In 2003 the Court of Appeal made a very important decision. For the first time it did not declare the extent or scope of our customary rights, but it founded Aboriginal title. This is not about a treaty-founded right. This right and these ranges of usages go to the heart of our constitution. It is about our common law rights.

Members opposite refuse to know what our constitution is about. They do it in a mischievous fashion. They have sat for years in this House and have known about it, but when they are on the Opposition benches they want to know not about developing a nation but about dividing it—like the member for Coromandel over there, the redhead who runs up and down maliciously driving divisions into the communities of the Coromandel, my own ancestral homeland. She is the type of member whom the National Party just loves to have in its ranks at the moment. She is redhead and rednecked. It is disgraceful what that member gets up to in the Coromandel.

As we move forward, do we as Māori communities acknowledge that there is treaty fatigue? Of course we acknowledge that. Do we acknowledge that in a number of circumstances “iwi” stands for “I want it. I want it”? Of course we acknowledge that. Are we far away from the end of nationhood? Not too far. The proposal that the Government laid on the table last week goes a long way to address a number of things. It states four major principles. The first is the principle of access. From the time of the Court of Appeal decision onward we said that extant rights, both private and public, would be protected. The Prime Minister and the Attorney-General said that, we say it, and we repeat it. We are sick of the mischief-making on the Opposition benches for cheap political polling requirements. Will Opposition members get it into their heads that it is not working? We will protect the existing private and public rights of access of all Kiwis to the foreshore and seabed. That answers the Hon Nick Smith’s mischief-making four-square.

The next step is the right to regulate. As the Deputy Prime Minister said in this debate, we have the right to regulate. There is a “public domain”, and us Kiwis have a right in 2003 to write our constitution. That is what this Parliament is about, and that is what this debate should be about. We have a right to write “public domain” into our legislature. In determining that to be the case, we do not have to accept Westminster precedent all the time—we have a right to shape and design our own destiny. The right of the Government to regulate goes to the heart of our sovereignty and our constitution. That is the safeguard in this whole proposal. It is the safeguard for all Kiwis.

That is why I am grateful to be under this leadership, in this Government, and in this party, driving this particular nationhood chapter forward. When our grandchildren look back on it, they will say that we were blessed by privileged statesmanship and leadership. Thank the Lord that we are here and Opposition members are over there. From the leader of the Opposition to the leader of “Dad’s army” over there—the member for Tauranga—all they want to do is to divide and rule. They know how to burn but not how to build. They know all about smarminess, but nothing about how smart and creative we can be.

The third principle is protection. Under no circumstances can one override a common law right founded 5-0 by a Court of Appeal. To override it would be the highest form of injustice. Nick Smith, Bill English, and Winston Peters want that to happen, but our constitution cannot allow that. It would be a beacon call to Māori to revolt. That is not the type of nationhood we want to hand on to our grandchildren.

The fourth issue is the right to certainty. Kiwis need to know that there is a Government that can regulate and define the issues for them. We will do that for them, but we will not override the right of protection. As I have indicated, the Māori Land Court will be resourced to explore the extent of customary rights.

I want to conclude by saying that I do not agree with ownership or title. They are attributes and values of the judaeo-Christian, Western European, Westminster legal system, and bear no resemblance to Māori rights. Our rights are about the right to bequeath, to protect, and to hand on. They have nothing to do with the monetary value that the Opposition wants to apply. I am grateful that we have a Government that has put a proposal on the table. I look forward to Kiwi communities engaging in it and coming back to us fruitfully. We will legislate for it.

The debate having concluded, the motion lapsed.