Foreshore and Seabed Bill

This part includes debate on schedule 2.

This is the part that, no doubt, New Zealand First members will claim as their triumph. This is the part that supposedly allows those New Zealanders who hold some property contiguous to a sea space and who have held that property continuously since 1840, and have undertaken activities within that foreshore and sea space of the same nature, pretty much without change, since 1840, the opportunity to go to the High Court and have a customary use right registered. There will be, perhaps, one or two families in New Zealand who might meet the criteria of still holding in 2004 the land that they held in 1840 or before that time. There will be, perhaps, one or two, maybe a few more, but certainly not hundreds, not thousands, and not tens of thousands—just a few.

Very few, and perhaps none, of those groups of natural persons—an interesting way in which to be described—will be able to demonstrate continuous use since that time. I have no doubt that Mr Jones will say that that will enable the committee that organises the Auckland regatta to go to the High Court to have that activity registered as a customary use of the area. But unfortunately for Mr Jones, the fact is that one cannot make application to the High Court for a customary right, or be granted such a right, under the bill as he has restructured it, if there is an aspect of commercial gain or activity inside what is claimed as a customary right. So the Auckland regatta, with its various sponsorships and attempts to recover costs, would in our view be caught by that restriction.

But if that does not catch them, the other clause in this part talks about having exclusive use for an activity in an area, and the right to deny others access for that purpose. Well, they cannot do that. Everyone knows that sailing on the Auckland harbour is a free-for-all. If Mr Jones is going to stand up and tell us that the High Court is about to change that, he is a much bolder man than I am. So what we have here is a very large number of clauses that in fact will probably achieve absolutely nothing for anyone.

I invite the Minister in the chair, Dr Cullen, to give us some practical examples of groups of New Zealanders, by name—we can go around the countryside and name the Māori groupings who will be able to go to the Māori Land Court and get their rights granted. I will guarantee that the Government does not have a clue who others might be, but in these conditions it has simply made sure that there will be very, very few of them.

So this is really just a “placate the white folks” series of clauses here. It does not set out to give any rights whatsoever, because the reality is that the vast majority of people in this country have ancestors who arrived post-1840. When we look at the general processes that have to be gone through under the legislation, I think that it would be difficult for any group to assert that it was a group of natural persons for the purposes of representing themselves under the conditions of this bill.

I have to say, though, that it is difficult to follow the process. We notice that the numbering in the so-called redline document does not follow the numbering we have in the Supplementary Order Paper, and that we have to search very hard through the bill itself to find the relevance of the Supplementary Order Paper, given the very considerable number of additional bits and pieces that have been added on. I cannot help thinking that the Government might have got its members together in a back room somewhere, and said: “Heck, if we don’t tighten this thing up, goodness knows who might try whatever on with the courts.” So they went to Mr Jones, who is a naturally cautious and suspicious man, and they asked him what he would recommend. He came up with just putting in a clause 65A, B, and C, etc.

New Zealand First has made it clear that there should be one law for all. This bill is an effort to provide for one law for all, and the party that went to Ōrewa and talked about one law for all, is going to oppose a clause that provides that. To put it very, very simply, that is what this clause is all about—one law for all New Zealanders. It does not matter whether a person is white, brown, recently arrived Asian, or, like myself, of American parentage on one side—and like Tariana Turia; we both have American fathers—it is one law for all, and the National Party opposes it. What a bunch of sour grapes from that party! Its members are really whingeing and whining on a clause that gives one law for all.

The Rt Hon Winston Peters, in his first statement on this issue in June last year, made it clear that we would have a law on this bill, irrespective of race. Here we have the clause that provides that provision—irrespective of race there is one law for all—and the National Party just cannot come to grips with the fact that New Zealand First has not only talked about one law for all but has acted and got a result.

I would like to thank the Labour Party for taking us on board. It might have upset one or two of them to think that they had to do that, but in an MMP environment we all have to realise that sometimes we have to work with one another. It has been very good working with Dr Cullen and other Labour members of Parliament. Of course, we in New Zealand First know from our experience with the National Party that that party is extremely difficult to work with, and at the end of the day we had to walk out on the National Party, because it wanted to sell off New Zealand’s assets. But this is a “one law for all” bill.

The first point about the Auckland anniversary regatta that Mr Brownlee raised—whether it could make a profit—is a matter of sour grapes. I presume that the anniversary regatta organisation is an incorporated society. Therefore, as a non-profitmaking organisation, that particular bunch of sour grapes on the part of Mr Brownlee is dead—drowned and buried at the bottom of Davy Jones’ locker.

As far as the other provisions of this bill are concerned, the bill is a first for New Zealand, I think, and New Zealand First is proud to be part of it. We know that this is not a common law right; it is a statutory right. So we can forget about McHugh and the rest. This is a statutory right—perhaps the first in the world. It may not be absolutely perfect, because it is the first ever in the world. One does not actually need to have contiguous land, in the way I read the bill. That, again, is something Mr Brownlee is unaware of and has not grasped. He should “read it and weep”, as we used to say in the old days in the men’s common room when playing cards.

Mr Brownlee is just not aware of the situation, at all. I accept that he has had trouble reading it, and I will give him another helping hand. Schedule 2 has been incorporated in these particular clauses, so that is why schedule 2 has been deleted. That will help him understand why there are so many clauses about contents of applications and directions for service. But it gets down to Dr Mapp at the select committee. He thought he would be very clever and prove to officials that this type of provision could not work for the anniversary regatta. He must have spent about 5 or 10 minutes grilling the officials on this particular provision, and all an official could say, based on the wording in the legislation, was: “Yes, there is a possibility, I would not say a probability,”—officials are very cautious—“that the Auckland anniversary regatta could go ahead.”

Of course one could say that they do not need it. They do not have to do that if they do not want to, but the option is there. That is what life is about—the option for equality for all New Zealanders is in this bill. The Weymouth boating club came to us as a submitter. That club is going to apply for a customary rights order. A very smart young man, who turned out to be a Labour supporter, gave Dr Wayne Mapp and Ken Shirley a real telling off. But that boating club is going to go for that order. As far as this legislation is concerned, it is a very simple test put out by the committee: the order applies to a group of natural persons whose members share a distinctive community of interest, and they have to have been carrying out the practice since 1840. The Auckland anniversary regatta has been going since at least September 1840, and probably since before that. It has to be a practice that is integral to the distinctive cultural practices of a group, and in those days, sailing was how one got to New Zealand—one sailed here. There is nothing more integral to the British settlers of New Zealand than the fact that they sailed here.

The Greens are opposed to this whole provision and we have put forward a number of amendments to the bill to get rid of it. It is not that we do not acknowledge and understand that the community as a whole has practices and activities in place that it considers are really, really important and wants to enable those to be protected. The fact is that there are already mechanisms to enable protection of those sorts of activities. We do not need to abuse and redefine in this deceptive way the customary rights of the indigenous people to whom this bill is supposed to be directing itself. It is a misconception and a complete deception to say that those who have come here after the process of colonisation and who are not indigenous to this land are entitled to customary rights. A customary right is a legal concept that applies to the indigenous people. It means the rights that they held in their customs, the rights that they exercised, and the things that they did before colonisation occurred. The customary rights provisions in the common law are a protection mechanism for those practices, once colonisation has occurred.

To then say that all people in the country are entitled to those rights, is wrong. It is wrong in law and it is wrong as a concept. In fact, it distorts things for the community, which wants to have its special activities protected. It gives the community false hope. There has already been enough palaver coming from New Zealand First and Labour about the undue expectations Māori have of what they could get in the courts. Clearly the officials have said, and even the bill itself acknowledged when it first came to the House, that no one will get these. No one will qualify for them, because they are so ridiculous. People will think they can get access to the courts. They will spend money trying to do this and it will be a waste of time because, in effect, the customary rights are useless. No one will be able to get them.

This part is a smokescreen of equality in order to hide New Zealand First’s complicity in the theft of Māori land. It unjustly raises the expectations of the community, which does want to have its needs met. But there are existing forms for this. For example, the Historic Places Trust will purchase, and assist people in purchasing, property that is considered to be significant for the community as a whole. There is no structured Māori form of the Historic Places Trust. No organisation is provided for, in the way that the Historic Places Trust is, to purchase and protect sites of historic or cultural significance for Māori in this country. The Historic Places Trust forms a really important part of the structure of protection and is there for the community as a whole.

In this bill there is some—slightly corrupted, in my opinion—form of protection for Māori customary rights. But New Zealand First wants to further corrupt those and steal the protections to make them apply to everyone when, in fact, those protections already exist.

Another clear example in terms of the importance of these things is the white crosses on highways. The Greens were the first to come out and defend those crosses on the highways and to say that Transit had no right to take them down. It was unjustified and incredibly mean because those areas were significant to the people who placed those crosses there. They were spiritually significant. Those areas do not have a physical manifestation for the people who placed the crosses there. They are spiritual for them and it is important that they are recognised, accepted, acknowledged, and understood by the whole community. They form an important tool for the community as a whole and they need to be protected. We have been the first to say that they should be.

But these are not things that customary rights can be claimed for. There are other forms of protection that Parliament and other structures can provide to enable those kinds of values to be enshrined in our culture. The provisions that are set out in this part, which New Zealand First has been so intent on making sure are there, are symbolic at best. New Zealand First recognises that it will be very difficult for people to get these rights. It recognises, at least in some part, that the provisions are likely to be symbolic and provide the veneer of equality. Yet when asked to support the entrenchment clauses to protect the foreshore and seabed from sale into foreign hands, New Zealand First refused. It refused because it did not want to support something that it considered to be only symbolic. Yet it has spent important and scarce negotiating time with the Government to put forward provisions in law that are nothing if not symbolic and useless.

Customary rights orders are not defined, as people who listened to the last speaker would believe, by the existence of other customary rights orders; customary rights orders are defined by the practice of a group. Under this part a group is a group that shares a distinct community of interest. This area of customary rights is not a development of aboriginal customary rights, but a natural consequence of the codification of the law as a whole. This Parliament cannot try to guess who may have that distinctive community of interest, who may have held it since 1840, and what practices are integral to the distinctive cultural practice of the group. That is not the point. The point is that when we codify the common law we seek to bring consistency.

The applicants under this issue need not be Pākehā. They could be Māori, if they wanted to align themselves in that way. This measure provides an alternate, and a logical extension, in a multicultural society, to the aboriginal customary rights that this bill codifies. No one at all needs to feel threatened by it, because if there are no groups that seek to be included, there is no problem; if there are groups that seek to be included, then, of course, there will be no problem because they can be so accommodated. It would be totally unfair to present this bill as one that panders to just one race. The aim of this bill is to codify the law in respect of customary practices and rights as they relate to the foreshore and seabed.

So it is not appropriate to say that because this measure may not apply to Māori, it should not be in the bill. It is in the bill in order to achieve a consistent codification, a logical examination of all options, so that when an option is put to the court that reflects the growing diversity of culture in this community, and the recognition of those practices, then any group, no matter what its racial background, will find a space within the bill to give expression to that laudable aim of a maintained, historic customary right—not a new one, but one that is currently in existence; not a recent invention but one that has been in existence since 1840. So the tests that apply to customary rights orders under this part of the bill are similar in many regards to those taken from the aboriginal rights that give rise to the customary rights orders that we have dealt with in Part 3.

This simple measure gives completeness to the bill. It makes it a bill, and, ultimately, an Act, that applies to the face of New Zealand as we all know it—a multifaceted, multicultural, varied face that no one in Parliament should endeavour to prescribe or exclude. It is as simple as that. It is a nice, elegant addition to the common law. It will present no complications and all speakers in this Chamber should endorse it.

This is the part of the bill that is designed to protect the Auckland regatta. It was not until Mr Peters made his statement that the organisers of the Auckland regatta realised that it was in any way under threat. There is no evidence that the Auckland regatta organisers will apply, despite Mr Peters having provided this whole part for their benefit. What on earth would they apply for, and who, apart from Mr Peters, thinks the Auckland regatta is under threat?

This part brings MMP into disrepute, because New Zealand First has said: “Let’s go back far enough, then say that we’re applying the law to everyone.”, and it picked on 1840. I ask Mr Dail Jones why 1840. If he was to look at the Canadian experience, he would see that the Canadians have gone back to first contact. The reason they did that was that they said that once two cultures clash, each culture changes. We know that—

💬 Dail Jones: Ask me. I have given you the answer.

I listened to Mr Dail Jones properly; now he does not want to hear me. We know that when Captain Cook first arrived he had considerable impact. But the Australians have gone the other way. They have said it should date from the point of sovereignty. Mr Dail Jones, if he had been in New Zealand a bit longer, would know that New Zealand did not get sovereignty in 1840. I tell Mr Jones that New Zealand did not get sovereignty until 1948, when we signed the Statute of Westminster. That is when we got full sovereignty. If Mr Jones’ logic was to be followed, if he really wanted the same law to apply to all New Zealanders, he would change the year from 1840 to 1948. No one believes that he will do that, because Mr Jones is not actually interested in providing protection to every New Zealander; he just wants to make a simple slogan statement that New Zealand First is applying the same law to everyone. He has admitted that that is all he is doing. Why not be safe and date it from first contact—go back to 1642, when Abel Tasman turned up? That would be a good date. Then Mr Jones could really say that he was acting on behalf of every New Zealander, and that this is one law for all. It is a nonsense.

I draw the Committee’s attention to another matter, and invite Mrs Donna Awatere Huata to take a call. I was in the High Court of New Zealand when I heard her lawyer say that she would vote with the ACT party. Because she has now discovered that she will hear the court’s decision tomorrow, I heard her decide to start to vote with the Green Party. On the political spectrum, we could not get two parties that were further apart. I would like her to explain to us how a person elected on the ACT party list can suddenly decide tonight that she is a Green MP. I would like her to take a call and explain that. It would be her valedictory. She could get up and explain how a person can tell the High Court that she is an ACT MP and that she will vote with the ACT party, then, when she finds out that tomorrow she will be going out of Parliament, votes with the Greens, the socialists in this Parliament. She could not vote more differently.

There is a word for that; it begins with “h”, but we are not allowed to use it. However, I am perfectly entitled to invite Mrs Donna Awatere Huata to explain her vote to this Committee and to the 160,000 people who voted for ACT and put her into Parliament. They voted for property rights and one law for all, only to find that tonight, at 9 o’clock, she has suddenly discovered that she is a Green MP. I think that is such an extraordinary conversion that the whole Committee should hear about it. Let us have an explanation of the amazing voting that we are now getting from the member.

💬 Tariana Turia: I raise a point of order, Mr Chairperson. I ask what relevance this speech has to the bill.

Speaking to the point of order—which I am quite happy to speak to—I say that the relevance is that one can ask any member to explain his or her vote. Perhaps the member who made the interjection might be able to explain it, because Mrs Huata is also now voting with the Māori Party. That is quite an extraordinary conversion, 24 hours before she will probably be told she is no longer a member.

💬 Hon Parekura Horomia: Good on them.

The member says “Good on them.” The Government has been telling us that people will behave honourably, under this bill. Where is the evidence for that?

I will talk about new clause 61, “Determination of applications for customary rights orders”. This clause is, as Mr Jones is wont to tell members and the media whenever he has the opportunity, the Auckland Anniversary Regatta clause—as if the Auckland Anniversary Regatta needs it. For the last 164 years, I guess the organisers have been in doubt in about November of each year, wondering: “Are we going to be able to hold this regatta? Will people stop us having our races on the harbour?”. In reality, the member well knows that that simply is a nonsense.

Yes, it is true that I asked officials of the Fisheries and Other Sea-related Legislation Committee whether the regatta met the criteria, and we went through them. Had it been going before 1840? Yes, it had. Did it involve particular people with cultural practices? Yes, it did—they all wore white flannel, and so forth. Were the people in clubs? Yes, they were. Yes, it meets the criteria. The question is what is the point. Why are we passing law to allow that group to go to the High Court, at the cost of tens of thousands of dollars, to get an order to do something that that group always could do, and always will be able to do? That group does not need the assistance of the New Zealand First - Labour cabal; it does not need it to deliver some sort of benefit that is completely unnecessary. I concede the point that the regatta fits the criteria; I ask the question: so what? This truly is an example of the time of Parliament being wasted to provide rights that are completely—[Interruption] On this particular part, we are wasting the time of Parliament. The Government, with its New Zealand First allies, is trying to put in place something that is unnecessary.

It had other choices, and Mr Brownlee has put those extremely well. There are a large number of New Zealand families who are not Māori and who have had long-established relationships with the coastline over many generations, but they will get no advantage from this bill. Yet surely they have established customary rights. The Government’s answer will be that 1840 is a magical date, but what that does, in practice, is provide a benefit to Māori only. It has come up with this, in essence, fiction about the Auckland Anniversary Regatta, to justify that principle. That is what it is all about. It is a fiction to justify separatist and sectional law.

If the Government were honest, it would provide a more realistic date that recognised the true history of our country. That date would, obviously, be quite a long time ago, because it is the nature of customary rights to be established by families over generations, but it would recognise the reality of this country. By and large, the modern country of New Zealand was settled by Māori prior to 1840, and by those from Britain post-1840, by and large, with the great core of that settlement occurring in the 19th century. That is the fundamental core of our nation. Those peoples have been added to in more recent times—and, indeed, were added to in the 19th century—by peoples from all over the world. For all I know, the Chinese community may well be able to establish customary rights in parts of Dunedin, for instance. We have to have a date that truly and realistically accommodates the breadth of New Zealanders, if these kinds of clauses are to have real life, force, and meaning.

Surely the Government, which says it wants to reach out to all New Zealanders and embrace them in some kind of inclusive law, should have a proposition that actually does that. This provision totally fails. When Mr Jones uses the example of the regatta, he actually brings these proposals into some kind of disrepute. He knows that it is not an issue. He knows that the Auckland Anniversary Regatta did not ask for it, because it did not need it.

The debate on this part shows the arrant nonsense that the National Party has been speaking for weeks. Only last week, Mr Brownlee showed his misunderstanding of these issues by denying the need to deal with the High Court jurisdiction if we were dealing with the Māori Land Court jurisdiction. The National Party agrees that the foreshore and seabed should be Crown land. The National Party says it agrees that the jurisdiction of the Māori Land Court had to be truncated so that alienable title could not be created; freehold title could not be created and sold. It failed to realise, and fails even now to acknowledge, that closing that particular door and not dealing with the High Court jurisdiction would be to deal with only one side of a two-sided coin. The inherent jurisdiction of the High Court also includes the power to award, in some situations, alienable title, and to exclude the public from parts of customary title that could otherwise be granted by the High Court.

That also exposes the Greens’ lack of logic. The Greens in their report back on the bill say that access to the foreshore and seabed should be provided for all people. The Green Party recommends that: “there should be no saleable private and exclusive title granted over the foreshore and seabed to anyone, New Zealanders in general, tangata whenua, or overseas interests.” Yet it opposes the limitation of the jurisdiction of the High Court. That is effected by clause 62C, which provides that the High Court cannot make customary rights orders that restrict access rights. If that provision was not in the legislation, the 80 or so applications presently before the Māori Land Court, covering just about the whole foreshore of New Zealand, would very quickly migrate to the High Court forum. That avenue would be open, that divisive issue would be out there for years to come, and it would not be fixed.

Only through addressing the inherent jurisdiction of the High Court as well as the jurisdiction of the Māori Land Court can this be fixed. The ignorance of the National Party was shown by Mr Brownlee during question time last week. Even after 19 months National does not understand that simple point. Mr Mapp has just shown his ignorance by saying that the defining date at which customary rights are assessed should be later than 1840, when the very basis of the court’s common law jurisdiction to find customary rights relates to the date of the assumption of sovereignty by the Queen. That, again, shows how poor the National Party’s understanding of these issues is, even after 19 months. If we deal only with the Māori Land Court, which National and the Greens say should be the case, but disregard the jurisdiction of the High Court, then we do not cure the underlying mischief, which is the risk of freehold title, alienable title, being sold off or created and used to prevent other people from getting access.

I want to deal with one more point. The Greens say that Crown ownership does not protect the foreshore and seabed from being sold off and that there is some hidden agenda to sell off the foreshore. What arrant nonsense! Who owns New Zealand’s national parks? The Crown owns them. Does anyone feel that the national parks are at risk of being flogged off? I certainly do not. The foreshore and seabed will be in exactly the same situation. Indeed, they will have even greater protection, because the provisions in this legislation say that they should be held for all the public and should be inalienable. This debate on Part 4 shows that the National Party does not understand the issue. This legislation is needed. Part 4 is as important as the limitations on the Māori Land Court jurisdiction, and it should be passed.

I would like to put on record a thankyou from the National Party to the member from Otago. That is another thousand votes for Jackie Deans, to add to the thousand she got today door-knocking in Otago while the member spent 8 hours writing that 5-minute speech, so we thank the member for Otago.

Part 4, as the deputy leader of the National Party, Gerry Brownlee, said, is all about placating the white folks. I can tell the House what happened in relation to that. Part 3, which we debated earlier, deals with the customary rights orders the Māori Land Court gives to Māori when they come to that court, cap in hand. Part 4 is supposed to mirror that for the white folks, and to give the High Court a jurisdiction similar to that of the Māori Land Court in giving those customary rights orders.

I know what happened. There was a big stir in New Zealand because Māori were getting something for free—arguably, something they were not entitled to—in such a blanket way across the country, and the New Zealand public got quite upset. Dr Cullen went to see Winston Peters and said: “Winston, with about 10 percent—no, 7 percent; no, 5 percent—of voters, you seem to cross the great divide. Granted, they are all over 67 but you have crossed the great divide between Māori and Pākehā. What shall we do to fix this?”. In his wisdom Winston Peters said: “Dr Cullen, throw the white folks a bone.”, and here we see it in Part 4.

I want to bring members’ attention to clause 56A, because that clause gives a definition to the white folks they are throwing the bone to: “group of natural persons with a distinctive community of interest …”. That is who the group is. The definition goes on to state that the group does not include “persons whose only connection to the group is as successors in title …”. In other words, succession through the family line is not included for the white folks. How can that be?

When it comes to Māori customary rights, an association with a coastal marae generally means a customary right through whakapapa and relationships. But a non-Māori with an ancestral line through succession, through relationships, is not included. In other words, if grandad owns a place by the beach and has had undisturbed customary use of that beach for a period of decades, his daughter is not included, his grandson is not included, and his grandson’s daughter is not included. But for Māori, whakapapa is included for generations upon generations.

Why is relationship succession, which generally leads to inherited title, and which is generally passed on through family lines, generation after generation, not included in clause 56A for white folks but is included for Māori? There is a huge distinction between Part 3, where the Māori Land Court grants customary rights, and Part 4, which we are debating, where the High Court gives much more limited customary rights for everyone else.

I rise to support Part 4 of the bill, and to make the following observations, particularly in light of some of the comments made by the member who just resumed his seat. The member reflected on clause 56A: “In this Part, group of natural persons with a distinctive community of interest and group does not include persons whose only connection to the group is as successors in title to any land.”

He went on to talk about “the white folks”; I am sure I heard that terminology. Does Pansy Wong have anything to say about what that member just said about her? Is she excluded? Are the Chinese populations that came to this country to mine in Otago and the South Island, and to work in this country, excluded just because they are in the National Party? Is that what that member said to Pansy Wong?

I ask him about Georgina te Heuheu, who is another member of the National Party. Is she a white folk? Has she been classified in that regard by the member from the National Party who just resumed his seat?

But there is an even worse aspect. A “community of interest” is what the National Party used to be, but it is all over the place now. Those members are all rising to take a call in this debate. There is no discipline, no argument, and no substance—it is outrageous!

I rise to support this part, which is actually the New Zealand First part. It is the “We love all Kiwis” part. It means that under this legislation there is one rule for all Kiwis—for everyone. It is called the 1840 rule. If one cannot hit the 1840 rule, and if one cannot ensure succession and assignation through the 1840 rule, one gets nowt. It does not matter whether one is white folk, brown folk, yellow folk, or any folk. The reality is that under Part 4, by care of New Zealand First, 1840 is the deadline. It is the cut-off point.

Gerry Brownlee stands up in this Chamber as a fifth generation Kiwi and says: “Oh, I don’t make the cut because of the 1840 rule, and I don’t like it.” That is what Gerry Brownlee says. He says: “I’m a greedy little fellow and I want a part of the action.” But New Zealand First says: “Sorry, Gerry. You haven’t made the cut-off date.”

The CHAIRPERSON (H V Ross Robertson): The member’s full name is to be used.

Of course. He is the honourable Gerry Brownlee, and Gerry Brownlee cannot make the cut-off date. Why? Because New Zealand First has said that 1840 is the date. If one does not make the date, it does not matter whether one is black, white, or brindled, or whether one is white folk or brown folk. If one does not make the cut-off, one does not make the cut-off.

Part 4 is for all those folk over on the Opposition benches, and for most of my colleagues on the Government benches, and I say that that is great. I say that it is one rule for everyone.

I have to acknowledge Dail Jones and his colleagues from New Zealand First. There are six Māoris in New Zealand First and they have all lined up and accepted it. We Māoris are real Māoris, too. [Interruption] Yes, that is right.

💬 Opposition Member: We will watch them.

There are a few of them around, even though Georgina te Heuheu has been made an honorary white folk by the member for Whangarei—but he is good at handing out honorary titles and degrees. I came down to the Committee today to honour and accept the New Zealand First position, even if for no other fact than they have thirteen votes—and we need them!

However, putting that to one side, I acknowledge that we now have those rights, and as we move forward as a disciplined, wonderful nation, forging ourselves together with great tolerance and respect towards one another, I say to Mr Brownlee that this is the “Save Gerry Brownlee” provision. The reality is that Mr Gerry Brownlee cannot make the 1840 rule—[Interruption] Well, he should not sit here with a vested interest in an attempt to blackguard everybody else and the justifiable rights that have been expressed in this document within this particular legislation.

I put it to members of the Opposition that the safeguard is here as one rule for all people. There is no doubt about that—absolutely no doubt about that—but we all have to hit the 1840 rule. If one cannot hit that 1840 rule, it will not matter whether one has five generations of succession. Now, Gerry Brownlee is getting very upset. We can save the whale and save Gerry Brownlee, but this bill does not do that.

I also wanted to indicate a couple of other matters that are very important to do with the jurisdiction of the whole bill.

I raise a point of order, Mr Chairperson. No, there is no point of order. The member is running out of steam and I thought that I would give him a break.

The CHAIRPERSON (H V Ross Robertson): That is not a point of order.

This is easily the most cynical part of this legislation, and the fact that we are debating it does an injustice to this Committee. This whole business of the foreshore and seabed is being taken seriously by everybody in New Zealand who knows that it is going on. Fifteen thousand Māori appeared on the front lawn of Parliament because they took the issue so seriously. But in Part 4 there is the ultimate expression of political cynicism, in a deal that has been cooked up between Dr Cullen and Mr Peters. This part is no more than playground politics. We all know that, as we sit here in the Chamber and read through it in order to try to understand why there is a jurisdiction of the High Court in respect of customary rights, and when members have just finished the debate about the jurisdiction of the Māori Land Court. It is for the very simple reason that our favourite political show pony, Mr Peters, will be able to stand up in front of his Grey Power audiences and say: “One law for all.” That is the only reason for this part. There is no other reason. As the ACT MP Mr Prebble pointed out, the Auckland regatta does not need this part; it never has needed it, and it never will need it. Dr Cullen put this part in as a show of the desperation that the Government had about getting the numbers for this legislation, did he not? He must have been really pushed if he had to introduce a whole new jurisdiction that, to all intents and purposes, will never be used.

I did, though, wonder about one opportunity to use it with regard to sites of significance. There are any number of burial places around New Zealand that have been used consistently by communities since 1840. I would be interested in whether the Minister in the chair, Dr Michael Cullen, can tell us whether, for the purpose of protecting such a site, a community could go to the High Court for a customary rights order equivalent to what would apply to wāhi tapu. My guess is that one can do that, so that is one way in which the part could possibly be used. However, we are casting around and trying to find ways to use this part to do things that we have always done without any question over their legality or probity.

There is another aspect of this part that I think is worth commenting on. The clauses in this part outline the conditions under which a customary rights order may be issued. As I looked through and checked it out, I found that they match pretty much the clauses under the Māori Land Court jurisdiction and that the hurdles in the part are fairly high. In order to get one of those orders, one has to demonstrate continuous activity, and that will be difficult. When I listened to Mr John Tamihere’s jocular explanation of the whole thing, I wondered whether he was underestimating the seriousness of his position, because there is absolutely no doubt that the Māori MPs in Labour have utterly failed to meet the expectations of the 15,000 people who turned up at the hīkoi. I do not think that there is any doubt about that. As I read through this part, it struck me pretty forcefully that that is the reason Dr Cullen did the deal. He wants Winston Peters, as well as John Tamihere, to go out there and sell this legislation,.

There is no doubt that Labour let the genie out of the bottle over Māori expectations on ancestral connection. Those expectations have been running wild for the last 6 or 9 months among Māoridom, and the Labour Māori MPs have delivered nothing like the expectations of their supporters. That is why Tariana Turia does not have to take a call tonight. She knows that she is winning huge ground over this legislation. [Interruption] That member should know, if he did not know this already, that he is losing huge amounts of ground over it. I challenge the Māori MPs to get up in the Chamber and say the same things that they said in front of the hīkoi.

I move, That the question be now put.

This legislation must surely be politically correct madness. Part 4 is all about that. I guess it is a pathway, one might unkindly say, for “white honkies”. I listened to what the honourable John Tamihere said when he seriously suggested that different ethnic groups may take advantage of Part 4, and I thought he must be dreaming. We did not have Chinese settlement in New Zealand until 1860. The only possible ethnic groups that may be considered as coming under this umbrella are Māori and, I guess we would say, European or Caucasian interests. It seems to me that this debate is rapidly developing into a farce. It is a farce created by the Government, driven by political correctness and an apparent desire for all New Zealanders to be seen to be equal, when the reality of that desire is wholly illusory.

What is implicit in Part 4 is that a concurrent jurisdiction is given to the High Court to make customary rights orders under Part 4, and that is underscored by provisions in the part. It is a jurisdiction that is shared with the Māori Land Court. Under Part 3 it is quite clear, by dint of clause 60, that the Māori Land Court is to have primacy in determining issues of customary rights. I just note that there are subtle wording differences between Part 3 and Part 4. That will, in the result, doubtless cause confusion and assertions of injustice and inequality of treatment. That could all have been avoided. Did the Government seek to do that? No! Why not? Maybe it was pressure of time; maybe it was just simple ineptitude.

I would like to draw two points to members’ attention, before I make the substantive point that I seek to make. The first concerns clause 62(1). Under the heading “Effects of customary rights order”, that clause makes the point that a customary rights order may entitle a group on whose behalf the order is made to derive a commercial benefit from carrying out a recognised customary activity. It was never intended in the context of the common law that customary rights should be exploited for commercial gain. The same provision occurs, of course, in Part 3. It shows a misunderstanding of what the whole concept of customary rights was about, is about, and will be about. The second point I note is that, in a fit of generosity or perhaps foolishness, under clause 58 we all have until 31 December 2015—yes, 10 years—to make application to the High Court for one of those orders.

I have said that there is an air of unreality about this part. In fact, there is an air of unreality about the bill. It overlooks the simple fact that in the New Zealand community today Māori and non-Māori have substantially intermingled. The legislation assumes that Māori tribal groupings are substantially untouched by civilisation. It is a throwback to the idea of the “noble savage”—the romantic iwi groupings on the coast, and the idea of flesh pots and cooking pots. That is absolutely ridiculous, because Māori and non-Māori have moved on from that. Let us just say we have a New Zealand community. [Interruption] I would just like to say to the members who are shouting across the Chamber the stupid comments that they are so inclined make that it is appropriate in the context of this bill—if for just a moment they would listen—to reflect on the whole issue of what it means to be a Māori in 2004 and what it means to be a non-Māori. Mr Maharey, even with the flights of imagination that he is given to, could not cross that intellectual gap, but some members may be able to.

I move, That the question be now put.

We are debating Part 4, and in particular the Winston Peters clause. I ask the Minister in the chair, Dr Michael Cullen, to name just one activity—he is yawning because he cannot—that this clause will apply to. Can he call one out? Can anyone hear the Minister calling out one activity that will be protected by Part 4? Not one! This is the most useless legislation that we have seen in this Parliament for years and years. We hear Mahara Okeroa calling out. This just shows a Government—

The CHAIRPERSON (H V Ross Robertson): I am sorry to interrupt the member. I know it is a robust debate, and I enjoy passionate and vigorous debate. But I have to say to members on my right that I have difficulty in hearing even Mr Hide. I caution the members now: whakarongo; turituri.

What is clear is that the Government wants the legislation to go through Parliament as quickly as possible. Why? Because the Government is embarrassed by it, and even when Opposition members get up to speak about it, Government members try to drown us out. They do not want New Zealanders to know the truth.

Part 4 achieves nothing. It is race-based legislation on speed—that is what we have. Michael Cullen looks confused—and well he may be. How do Māori go about getting their customary rights orders? How do they do it? They go off to the Māori Land Court, and they get—

💬 Dail Jones: They can use this process.

Well, why would they use this process and not the other one?

💬 Dail Jones: Why not?

The point is that Māori were here before 1840. I know that Mr Jones is a recent immigrant and that he is embarrassed about that fact, being a New Zealand First member. Māori were here before 1840, and they can use the other process. What advantage does that give them? That gives them the Māori Land Court. Let us remember that this Government did not trust the Māori Land Court to deal with the original case. The Government did not trust it, nor did Parekura Horomia and John Tamihere. So the Māori Land Court will decide Māori claims for customary rights, but everyone else will go to the High Court. Here is another difference: Māori can claim spiritual connection—tikanga Māori. I ask Mr Jones where that is for everyone else. Where is the spiritual connection in this part? [Interruption] Oh, it does not have one. That is the point. We have legislation that in the other part deals with spiritual connection, but in this part does not. Why? Because there are two separate processes in here: one for Māori, and one for non-Māori.

The solution was quite simple.

💬 Hon Parekura Horomia: Merry Christmas.

Well, even Parekura Horomia has woken up. That is a first. It is past his bedtime, and Parekura Horomia is awake. He normally nods off at question time, and does not come round until lunchtime the following day. We should do the obvious thing, and let Māori simply have their day in court. I ask Mr Horomia and Mr Tamihere what was wrong with that. What is wrong with letting Māori have their day in court? Then Mr Horomia could say that everyone is equal before the law, because Māori and non-Māori could go to court and have that tested. [Interruption] Parekura Horomia, the Minister of Māori Affairs, is calling out that Māori should not be able to have their day in court. That is why that Minister will be toast at the next election. He is voting tonight for two laws for New Zealanders, one for Māori and one for non-Māori, and he is saying to Māori that they cannot have their day in court. That is what Mr Horomia is saying. He is saying that Māori cannot have their day in court. They are second-rate citizens—[Interruption] Parekura Horomia says we should read Hansard.

Tariana Turia says I am right. I may check my assumptions, but I think she is right about that. [Interruption]

Members should take a big, deep breath, and then breathe through their noses.

I seek leave for Rodney Hide to have an extension of time of another 5 minutes, on the basis that New Zealanders love a joke.

No, the member knows—

💬 Rt Hon WINSTON PETERS: I am seeking leave.

The member cannot seek leave on behalf of someone else.

On the basis of Mr Peters’ kind invitation, I seek leave for another 5-minute call.

The Committee is the master of its own destiny. Is there any objection? There is objection.

I raise a point of order, Mr Chairperson. You have just asked members to calm down and take a deep breath. All that members are doing—and there are considerable numbers of them—is trying to get a call. They sense that the Government, eager to get off this very embarrassing part, is about to start bombarding the Committee with closure motions, and that at some point, no doubt, you will refer to a bit of paper, see that the clock has reached a particular point, and accept a closure motion. That is just not fair.

Mr Brownlee has made his point. The Chairperson is the sole judge as to whether the closure will be taken, as per Speakers’ ruling 58/8.

I raise a point of order, Mr Chairperson.

I have already ruled. It had better be something new.

💬 GERRY BROWNLEE: It is. I just want to let you know that while we accept—[Interruption]

Points of order are to be heard in silence. I now ask the member, who is a longstanding member, to withdraw and apologise

💬 Rt Hon Winston Peters: I withdraw and apologise for that outrageous comment.

💬 GERRY BROWNLEE: If anyone wanted to have proof that there are two standards of citizenship in this country, I am a living example of that. What I want to say to you is this. [Interruption]

The member over there will take down the visual aid. That is outside the Standing Orders. The member will remove it. He has his first yellow card. He knows what that means.

💬 GERRY BROWNLEE: I am on a point of order. It happens to be an Opposition point of order, so the rules change. We noticed that the last time the closure was taken the Government whip, Mr Hughes, got himself in quite a flap. He was running around the Chamber, saying that we had spent 2 hours on a part and that it was time we shut it down. We noticed that immediately after that, the debate ceased. That worries us, because this, as has been pointed out numerous times, is a very complex bill. The substantial Supplementary Order Paper, which is effectively an amendment bill and will soon be titled as such, was seen by us for the first time yesterday. It deserves a little more scrutiny than is usually the case.

I thank the member. I understand the point that is being made.

I raise a point of order, Mr Chairperson. I suggest that we are starting to get back to a habit we had for some time previously in this Parliament, when continual points of order were taken by members of the National Party to try to influence you on the issue of the acceptance or otherwise of a closure motion. The Speakers’ rulings on that are very clear, and had to be re-emphasised at one point in the past in order to cease that practice. Mr Brownlee is clearly now beginning to re-enter that practice. He knows very well the indications given at the Business Committee yesterday. So far today, in nearly 11 hours of debate, we have completed only three questions, which is an unusually long debate by the standards of the Committee. I do not make that point in order to try to influence you at all. I merely say that you make the final decision, and there is no question that your decision, in my view, is one that sometimes upsets members on the Government side of the Chamber, as well as on the Opposition side. That is the nature of being a referee in this place.

Thank you. I have heard what the member said.

I move, That the question be now put.

I urge the Committee to support the Green Party’s amendments to Part 4. A number of the Opposition parties have joined the Greens in criticising it for being unnecessary, a smokescreen, raising expectations on the part of the community that will not be able to be met, and, in effect, a fallacy. I hope those other parties will support the amendments of the Green Party to delete the provisions in Part 4 from the bill.

In an earlier call I raised the issue of the white crosses on the highways, which have recently come into the news because of Transit New Zealand wanting to take them down. Of course, the Greens joined the community in expressing outrage about that, because we recognise the significance of those crosses. We understand why it is important for people to have a physical manifestation to remind them of what happened in those places; we understand that those manifestations—those crosses—are an emotional and spiritual expression of what happened there. They are significant to the community. The practice of placing crosses on the highway has become common in the whole of our country, by the whole of our community. That common practice needs to be acknowledged and protected, and there need to be ways of making sure that the needs of the people are protected in some form. It needs to be recognised that those crosses on the highway form an important community function in terms of safety, in terms of reminding us, as we drive around, that lives are put at risk. That is extremely important.

If New Zealand First’s clauses made a difference to those white crosses—if they protected them—then this part might be useful. But there is no way that Part 4 will protect those white crosses, because unless something has been a common practice since 1840 it has no protection under the bill. Part 4 provides nothing for the community, because Dail Jones has the very strange idea that the best way to protect the values that people place on things like those white crosses is to apply some strange, blanket rule across everything. He thinks that everything will then fall into its place and be protected equally.

He has failed to come up with any examples other than the Auckland regatta. Even in the select committee, when he and the officials were asked for other examples he was never able to come up with a single other example of what these clauses would protect, yet on something as significant, as valued, as spiritual, and as emotional as the white crosses, Dail Jones’ amendments fail. They fail the community. They raise expectations that things like that will be protected, but we know that, in fact, they will not be. So these clauses are a fallacy. They are deceptive. They distort the beliefs, the understandings, and the values that are held by our community. They raise expectations; the community thinks its values will be protected, but they will not be. They are absolutely unnecessary.

Some of us here who try to be good lawmakers take the point of view that we are in a privileged position here in this House, and that we are required, as part of our service to the community, to make sure that when we enact law it is good law, it has a good effect for the people of our communities, and it makes a positive contribution to their lives. None of us should be supporting this ridiculous part. It is just one of a number of fallacies in the bill, but none of us should support it. It is not good law. Even Labour members, including Russell Fairbrother, have made it very clear that Labour acknowledges that it has no use whatsoever. It is so simplistic that it will have no effect whatsoever, anyway. I guess, in part, that is why those members do not mind putting it in the bill—because it has no effect. But this is law, and one does not mess around with it. It is a privilege to be in this House. We need to make sure that what we pass here is good law, that it does protect our citizens, and that it does provide them with some positive outcomes. Yet here we are debating a whole part of a bill that is meaningless.

I move, That the question be now put.

I am very grateful for the opportunity to take a call, because I want to say I am very pleased to see people sitting in the gallery, and they ought to know and be aware that this part purportedly gives all other New Zealanders—who perhaps have not had the opportunity under previous parts—the opportunity to apply to the High Court for various orders. But, as previous speakers have said, it is a sham.

I would like to ask the Minister in the chair, first of all, what a natural person is. Is that meant to distinguish people who are unnatural? Is it some cunning attempt to bar or block out, say, my colleague Maurice Williamson? Because I really take umbrage at that. I have not been present in the Chamber the whole of the evening, but if the Minister has not explained the meaning of a natural person as opposed to an unnatural one, then I think he should. If one is a person, surely one is a natural person, and, presumably, one has the right to apply for these customary orders. But to whom, and in what circumstances, does this provision apply? I do not think anybody—certainly not anybody on this side of the Chamber, and I do not think anybody on the other side of the Chamber, either—actually understands whom it applies to, and in what circumstances. I think John Tamihere implied that I can apply under this part. Well, thank you very much, but why would I go to the court, expend precious money, then spend more money giving public notice of my application to do something that I probably could do anyway, and that probably most New Zealanders could do? It is just a sop. It is a sham.

In contrast to others who say that this part is a Winston Peters’ part, I say that in reality the whole bill is a Winston Peters’ bill, because without him that side could not put it into effect. It is no credit to him or his band of 13 happy people, I might say. But the whole thing is so that Winston Peters can go up and down the country saying to Māori: “Your mana is protected.”, and saying to all other people: “Your mana is protected, too.” It is meant to be protected in this part. How can that be? This part is absolutely complex. Nobody knows whom it is meant to apply to, and in what circumstances. The Minister will not tell us. He should at least take notice of the fact that there are people sitting in the gallery who have a right to know whether they can go to the court and have their customary practices recognised. The Minister is nodding to the group sitting up in the centre of the gallery, but, despite his having given them a sign, I do not know whether those people are any the wiser.

The CHAIRPERSON (H V Ross Robertson): The debate is inside the Chamber.

I am speaking on this part of the bill, Mr Chairperson. What activity might those fine gentlemen sitting up there—those great New Zealanders—apply to the court for recognition of, and why would they bother?

The member must address the Chamber.

💬 Hon GEORGINA TE HEUHEU: And at what cost are they meant to do that? This is a cynical provision from this Government to allow Winston Peters to go up and down the country saying: “There is one law for all. We are all equal. Here you are, Māori; you can apply under these parts. Here you are, all the rest of you, you go under these parts.” I think that, in any event, no matter what John Tamihere says, the limitations clause in this part probably blocks Māori out anyway. I cannot imagine the Government would give them two bites out of the cherry, no matter what my colleagues might say.

I move, That the question be now put.

I raise a point of order, Mr Chairperson. It is relevant to the vote. Can you just clarify for us this relatively minor point, perhaps, as far as the results are concerned. With regard to the Progressives, I thought the Progressive Party had to have one member in the Chamber in order for its vote to be cast.

💬 Hon Dr Michael Cullen: In the precincts.

Precincts of Parliament. Well, that does immediately present a little bit of a problem, I might say, given our intelligence on this particular issue, and it is not one, perhaps, that we want to be pushed too far. I know that the matter was brought to the Business Committee. However, I do recall that our view was that if the Progressives wanted to cast its two votes it had to have one member here—certainly, in the precincts of Parliament, and we do not have a problem with that. Perhaps the whip casting the vote could stand on the floor of the House and give us that assurance.

The CHAIRPERSON (H V Ross Robertson): All I can say to that is that all members are honourable members.

I raise a point of order, Mr Chairperson. It has been ruled on a number of occasions by previous Speakers and Chairs that the integrity of the voting cannot be questioned in the House.

The CHAIRPERSON (H V Ross Robertson): Can I just say that all members are honourable members. Their word is their bond, and if it is found to be otherwise, they will suffer the consequences.

The question was put that the following amendment in the name of Metiria Turei to proposed new clause 61 set out on Supplementary Order Paper 302 in the name of the Hon Dr Michael Cullen be agreed to:

to omit this clause.