Foreshore and Seabed Bill

Part 5 is where Mr Dail Jones of New Zealand First has truly excelled himself in the subterfuge he has attempted to put around the real meanings of this part. Essentially, this is the part that imposes various aspects of the bill on to the Resource Management Act. In every sense, the veto powers that National members spoke of right from the time the bill was first read in the House are back and reinforced.

What do we mean by that? We mean that where a group of natural New Zealanders—most likely Māori—have a customary use right, then that group will be able to exercise that right in a way that will be very, very restrictive on district plans and on the interpretations the Environment Court can put on consent applications, should they get that far. In fact, it seems to us that if one of those reservations that New Zealand First wants to set up for Māori is established, then that reservation will have its governance board, and the board will produce a plan for how the various rights they have in that area are to be dealt with. That plan will end up being lodged with the local environment council or the district authority—whichever the case may be—and those provisions will then, by default, be required to be considered when it comes to any consent applications on adjacent land. It will not be hard for people to have those various rights. We should remember that we are talking about 10 percent of the coastline of this country being covered by this. John Tamihere, the previous Minister for Land Information, has been able to confirm how much of the coastline is involved. Those areas will be subject effectively to Māori veto when it comes to resource consent applications.

We would have thought that this Government might listen to the many thousands of New Zealanders who are saying already that the Resource Management Act is difficult to deal with, and that it is a massive brake on the capacity for the New Zealand economy to move even faster than it is at the moment. One might have thought that the Government would learn from its own experience in trying to deal with the issue of roading in Auckland—something, frankly, that in our view it has paid a little bit of lip service to and has no intention of doing anything serious about. But one would have thought that Government members might have learnt that the Resource Management Act is a very difficult process as it exists. They might have been saying: “Well, let’s see if we can get some streamlined approaches to the way in which resource consents are dealt with in this country.” But, no, a Resource Management (Foreshore and Seabed) Amendment Bill is being split out of this bill, somewhere. At some point in the debate we might find out what the intentions are—

💬 Hon Dr Michael Cullen: In the dead of morning.

No doubt it will be in the dead of morning, in the middle of the night, the day before yesterday.

The point is that the provisions in these clauses will simply make it more difficult for anyone to undertake reasonable activity in the areas that are covered either by those reservations or perhaps separately by the customary rights orders issued by the High Court or the Māori Land Court. What is the necessity of that? Surely the Resource Management Act currently protects those areas from adverse effects. Is that not its purpose? Why do we have to have particular provisions for Māori in that Act? I think it goes right to the nub of the problem when it comes to dealing with this bill.

On a number of occasions during the select committee process I asked submitters who were making pleadings on behalf of Māori groups whether they considered themselves to be part of the Crown in this country. Repeatedly, the answer was: “No. The Crown is something else. Māori is us. We are separate from the Crown, and the Crown is something that owes us an obligation.” As long as that is the thinking, and as long as we have a Government that allows that thinking to be perpetuated through this sort of legislation, we are in trouble.

The amendments in this part very largely reflect the departmental report to the select committee. Very little in this is a reflection of any subsequent negotiations, other than the usual governmental machinery processes that occur after a select committee report back. I think we ought to put it in context, and it is important to remember that when we are dealing with the foreshore and seabed reserves, we have to start from the fact that there is a high test for entry into those reserves. There is a test of continuity—[Interruption] I ask the member whether we can just speak for a bit on what I was talking about first—in fact, two things one after the other.

With a foreshore and seabed reserve there is a high test. There is a test of continuity, a test of contiguity, and a test of exclusive use and occupation. A moment’s deliberation around that will immediately suggest to members, if they care to think about it, that these are not areas where there are likely to be a very large number of developmental proposals occurring. Almost by definition that is not likely to be the case. So members’ concerns around there being heaps of developmental issues occurring within them are actually not well placed.

Secondly, of course, when the reserve is set up, the reserve board is not the consenting authority. The board must draw up a management plan, and that management plan is, in effect, incorporated into the coastal plan, but the district regional authority, and in some cases the unitary council, remains the body that is responsible for the Resource Management Act procedures within that, in terms of consenting procedures. So it is not a veto power at all. In so far as there is some consideration of veto power, it is where there is a question of a severe adverse impact upon the ability to continue to operate a customary right. That is perfectly appropriate. A customary right is a property right. It is perfectly appropriate, if somebody proposes to do something that has a severe adverse impact upon a property right, for the holder of that property right to be entitled to say no unless there is some form of agreement between that holder and the person making the proposal.

If parties on the right say they stand for property rights, they cannot then turn round and say that somebody else can trample over those property rights without due regard for the interests of the people who hold those property rights. This, I think, comes back to the sneakiness of the Opposition. Their real position with this—as they know, and we know in the Government—is that the vast majority of people who will hold these customary rights in terms of usage, which are likely to be quite limited in addition to the fishing rights already protected, will be Māori. The main objection from National and ACT is that we are actually protecting rights that will largely be held by Māori. Their view is actually quite clear. Their view is that if that is the case, then for some peculiar reason that I do not understand, to protect those rights is racist, whereas to override rights that are overwhelmingly held by Māori is not racist.

I think that is just about PC in reverse. It is about as silly as one could go, in terms of logic around those kinds of issues. I think that emphasises once again the shallowness of the arguments put forward by National and ACT right the way throughout this debate.

The Minister in the chair, the Hon Dr Michael Cullen, is one who has been part of a Government making a commitment to simplify the Resource Management Act, because even in the Government’s own commissioned reports that Act has been identified as a major bureaucratic cost for business and a major difficulty for addressing New Zealand’s infrastructure problems. The difficulty with the contribution we just heard from the Minister is that it is completely divorced from reality.

Let me advise the Minister of the sort of nonsense that is going on in my area. Port Nelson Ltd reclaimed an area of just 4 hectares. Local iwi objected, and because they could hold up a port company that is so critical to the wealth of my district, that company was forced into doing a deal with iwi whereby 49 percent of the shares in the reclaimed land was vested in a company with themselves—that is, there was a transfer of wealth, estimated to be worth $2 million, from the general public of Nelson to iwi. That was on the basis of a claim of customary rights in an area that is only 1 percent of the Nelson haven.

This is exactly the sort of consequence that will come out of the provisions of this Government in this part, and let me set out why. Iwi have a veto right over resource consents in those areas, even though their right may be only as big as: “We launched the waka in that bay 150 years ago.”, “We might have collected some hangi stones in that area.”, or “We might have collected the odd pipi.” But suddenly iwi are able to use that right and expand it into a multimillion-dollar right.

If members think the situation in Nelson is unique, they need look only at the situation of Fergusson Wharf in Auckland. That concerns a reclamation that is worth over $100 million where, equally so, those customary rights and powers that are being transferred into the Resource Management Act will result in a huge transfer of wealth.

It is interesting that the new Minister in the chair, Damien O’Connor, is one of the people whose constituents have been deprived of value through this very measure. He has been able to avoid questions in the local media, but let me put them to him again today: is it fair that his Tasman constituents have wealth worth over a million dollars transferred to 920 people who affiliate to eight iwi? Is that fair, and is that what he stands for? He indicates that his answer is “No.” Well, why in heck is he supporting the provisions in this bill that will give that sort of leverage to the John Mitchells of the world who advance those sorts of arguments?

Neither the Minister in the chair nor members opposite can pretend for a moment that they are going to sort out the problems of the Resource Management Act—all the spiritual nonsense and all the ways in which Māori are able to use the Act to gain huge commercial advantage. They cannot say that to their business audiences, and in the next moment pass provisions like the ones in this part that give such enormous leverage to those who gain customary rights.

If I were iwi, I would be in there, boots and all. I would be claiming those very customary rights in every nook and cranny of New Zealand as would iwi—not because they want to launch the waka, not because they want to pick up the odd hangi stone, and not because they want to take the odd pipi, but because by gaining those customary rights they will be able to hold the wider community to ransom and make a fortune.

It is a very sad situation indeed. This is a country that should be proud of its lack of corruption. We have long sat right up in the top ranks of countries, yet what we see in this part is nothing less than a vehicle for corruption in terms of the way in which resource consents are granted. We will have iwi, with their hands out, saying to companies that are trying to do reclamations, like supports, and to Transit that is trying to build roads: “There will be no resource consent unless you pay us off.” I want to hear from members opposite why on earth we would want to make worse the already serious problems we have with the Resource Management Act.

I rise to support the comments made by the Hon Dr Nick Smith. This is the part for graft and corruption in New Zealand. I want the record to show that New Zealand First voted for this bill, which will see large parts of the foreshore and seabed in New Zealand being contested by Māori groups who can then demand money. We heard that from the Minister in the chair a little while ago, Dr Cullen. He said that once they have that, it is “a property right” and it is only fair and reasonable that hapū, whānau, and iwi get paid for any diminishing of that right. This is the part that will see large chunks of the foreshore and seabed with Māori having a veto right over any development.

💬 Hon Rick Barker: Rubbish!

Mr Barker calls out that it is rubbish, but that is exactly what the Minister, Michael Cullen, said.

💬 Hon Ken Shirley: But he’s right; it is rubbish.

It is rubbish. The whole bill is rubbish, but Michael Cullen just said that. And we know this: the honourable John Tamihere, when he was Minister for Land Information, said he felt that something like 10 percent of the foreshore and seabed would be subject to this. He went on TV tonight and said: “Well, who knows? It could be a lot more.” And this is what New Zealand First is voting for, and this is what this Government is voting for. Rick Barker calls that “rubbish”. Well, hang on! Once there is a customary right in the Resource Management Act and someone wants to create an aquaculture farm and someone else to have a development on the foreshore and seabed, whose permission do they have to get? They have to get the permission of the council—the territorial authority—and the permission of the iwi, hapū, or whānau who have that customary title. That is what the Minister said, I tell Mr Barker, who would have heard that if he had been paying attention. Then Michael Cullen said that it was only right and proper that money changed hands as a consequence. That is what he said. But that is extortion; that is graft; that is what this bill opens up the foreshore and seabed to.

I say that Michael Cullen stood up in this Parliament and said that it was about property rights. Members should ask themselves what possible property rights are protected or enshrined by the Resource Management Act. That Act is all about undermining people’s property rights. That is what the Resource Management Act is about—and about setting up a political process to control and dictate, with interest groups being able to lobby and extort money from legitimate property-right holders. It is not about property rights, and I again ask the Government what was wrong with letting Māori have their day in court and stopping all this nonsense of opening up the foreshore and seabed to graft and corruption.

I want to draw members’ attention to clause 74, “Matters of national importance”. It states: “Section 6 of the principal Act”—that means the Resource Management Act—“is amended by adding, after paragraph (f), the following paragraph: (g) the protection of recognised customary activities.” That is a stand-alone clause in the very important Resource Management Act section that deals with matters of national importance. I ask the Minister in the chair, Damien O’Connor, whether that provision is confined to the foreshore and seabed. I ask the Minister to wake up. I know that it is late for the member, but I ask whether clause 74, “Matters of national importance”—by which “the protection of recognised customary activities” is inserted into the Resource Management Act—applies solely to the foreshore and seabed, or is generic. “Yes” or “No”? The answer is “Yes”.

I want to pick up on a point that was dealt with by the Hon Dr Nick Smith. He noted the circumstances at Port Nelson. As a result of the use of the Resource Management Act, the local iwi got 49 percent of the shares within a reclamation. That happened under the existing Resource Management Act. The money was paid because the port simply could not tolerate the problems of delay. It was cheaper, in fact, to pay the money and get the consent. What this bill will do is expand that tenfold. There are vastly greater prospects of that happening now under clause 93, which inserts new section 107A—hugely more prospects. In fact, the Minister, for the first time in this Parliament, had the decency to admit it. There is actually a veto right contained in that clause. It is not a question of balancing interests; it is an actual veto right. The customary rights holder can simply say: “No”, and that is it—no resource consent can be granted. Well, of course, we all know that a “Yes” can be obtained. A “Yes” will cost money. We know that it will cost a great deal more than the sort of thing that has happened at Port Nelson. It will happen many, many more times.

I particularly noted that Mr Hide spoke of 10 percent of the coastline. A minimum of 10 percent of the coastline, according to the Māori caucus, will be subject to customary rights orders. That will include ports. It will also include pipelines, cables, and all sorts of developments like marinas, crossing points for launching ramps, and jetties—we can name them, and they will be caught. In each and every case where there are customary rights holders, those holders could have the right to say no. When they have that right, the only way it can be changed is by the exchange of money. That is the reality. Now, at the select committee—and the chair of the committee knows this to be true—Transpower and Telecom, companies that had spent a large sum of money with their lawyers because their submissions were legally presented, were deeply concerned. There is no exemption for them in this clause, and that was the point that was reasonably asked for. There is no exemption for strategic works. I know there have been some minor amendments to the legislation, but at the end of the day under new section 107A, there is still that veto. So what we have the spectre of now is—

💬 Jim Peters: Where is the veto?

New section 107A, dealing with customary rights. And I add for the benefit of members of New Zealand First, that a previous Minister in the chair, Dr Cullen, who no doubt has been dictating the terms of the deal with those fellows in New Zealand First, said so in the Chamber. Those are the words he used, so I do not want to hear any cant from his allies.

In strategic works, companies could be totally paralysed. This country already has problems around infrastructure—serious problems. We cannot afford to have those kinds of hold-ups imposed on an already complicated and difficult statute, the Resource Management Act, by this Government. On the one hand, the Government says it supports the development of the country and says it is business-friendly, and so on and so forth—I have heard that many times—but on the other hand, at the same time, it is passing legislation that works right against that.

At the absolute minimum, we would expect that there would have been an exemption for nationally important strategic works. Actually, what the Government did was the complete opposite, because in clause 74, under the Resource Management Act customary rights orders are noted as being the issues of national importance. It is kind of like putting the thing on its head—rather than the strategic works being of national importance to the benefit of all the people of New Zealand, Māori and non-Māori alike, we have elevated the position of the customary rights orders as the items of strategic importance. The Prime Minister said that it was just about hangi stones and things of that nature, but it is a lot more.

I have listened with increasing incredulity to the last three submissions from the other side, and it can be only the lateness of the hour that is compounding an ill-informed view of the bill now before us. Essential to the concern of Mr Rodney Hide and Dr Wayne Mapp is the fact that a customary right order is extant at this moment. It was in existence last year, the year before, and right back to 1840. So we are talking about existing rights that pre-date the Resource Management Act. What this part of the bill does is simply create the provision for an adverse effects report if those existing customary rights undermine the national interest. So, in a funny sort of way, if we invert what Dr Wayne Mapp and Mr Rodney Hide were saying, they are effectively agreeing with the bill. The “Alice in Wonderland” argument being put up by the Opposition is surely a reflection of the late hour, dinner time, and a lack of sustenance since, because there is no logic or sense to their provisions.

But they may be explainable for a more simple reason, other than the lateness of the hour. Take, for example, the challenge issued by Mr Rodney Hide. In his normal bullying manner, he went for a Minister in the chair who is not primarily responsible for this bill, and demanded a yes or no answer, when the answer itself was contained not in clause 74, which he spoke about, but in clause 73(1). If he had bothered to read that, he would not have wasted the time of the Committee for 5 minutes by bellowing in the eardrums of all those people at home trying to get to sleep by listening to this beautiful soporific voice and the lulling tones that most of us bring to this Chamber. He was bellowing them awake with great horror and shock at the tone of voice of someone in a debating chamber, demanding an answer from the Minister when all the member had to do was cast his eyes over the bill in front of him. I guess that might be asking too much, as it is asking too much of members opposite to get their heads around a concept, which is essentially very, very—

💬 Sandra Goudie: Concept?

I said “concept”, not “conception”. The member should not prick up her ears. I am not offering anything. I am talking about a simple fact of the matter; a concept of something that has been in existence since before any Pākehā were here, since 1840; something that has been practised continuously on a very, very small area of New Zealand—the foreshore and seabed. It is something that is happening right now, before the bill passes. When the bill is passed, it will continue to happen. If it does clash with the principles of national interest and the Resource Management Act, then the adverse effects provisions arise and they protect the aims of that Act and the national interest. It is simple, and perhaps that is what is so deceptive. It is not complicated, and that is why people cannot understand it. If members opposite read the bill and spent less time sounding off, we would all get home much earlier, and this bill would be passed. This is a commendable part of the bill. The amendments to the Resource Management Act make entire sense, and are deceptively simple, and that is why members opposite cannot get their heads around it. I commend it to the Committee.

The member says that the bill is deceptively simple. Well, I most certainty agree with the “deceptive” part, and I think I agree with the “simple” part. The reality of this bill is that it is fundamentally racist. What is being proposed is that the Resource Management Act be changed so that all councils are required to protect recognised customary activities. We know from having read through the bill and having gone through the bogusness of “one law for all” that in fact they will all be Māori customary activities. The point I would like to make to our provincial lawyer is that he ought to know that under the common law, before the Resource Management Act and before its previous planning Acts, every New Zealander had the right to do any activity, providing it did not cause a nuisance to his or her neighbour. That was the fundamental right of every New Zealander. Now, I would not mind if the chairman of that select committee had stood up and said: “Let’s have an amendment to the Resource Management Act so that everybody’s customary activities can be protected, providing they do not cause nuisance to others.”

💬 Russell Fairbrother: It does.

The member says it does—for everybody. Well, that is sophistry, because we have already established that the only customary activity is one that goes back to 1840, and, apart from one regatta, we have not yet discovered a single activity—

💬 Russell Fairbrother: On the foreshore.

—on the foreshore, or anywhere else—that is non-Māori that is actually going to be covered by this clause. That is why it is fundamentally racist. That is a simple proposition, and it is deceptive because the honourable member is not prepared to stand up and admit it. He would be a better member if he was prepared to get up and say, as the chairman of that select committee: “Well, we have got racial seats. We hold them all, and we have decided to introduce a racial bill so that we can go on holding them.” That is why we have these amendments to the Resource Management Act.

I make this statement, as well. I repeat that ordinary Māori will not see as much as pipi out of this foreshore bill. They will not get a grain of sand. But this clause will enable the honourable member’s legal friends to get many, many grains of gold from this bill. This is a gold-digger’s bill.

💬 Hon Parekura Horomia: Pipis!

Now the Minister of Māori Affairs interjects. I just say to him that in a year’s time, when ordinary Māori discover that they have received nothing from this bill—no benefits whatsoever—that will be one of the reasons they—[Interruption] Well, they all had a vote, and that is one of the reasons why he is toast. He is absolutely toast. He is not like our friend Dover Samuels, who is already looking at his place in Surfers—he knows he is going. I think that the Minister of Māori Affairs is still under some sort of illusion that he might be able to recover his position in a year. There is not a chance because this bill is deceptively simple, as the chairman of the select committee explained. It is deceptive all right, and it is simple racism. He will discover that even his constituents are not in favour of that.

This bill is an absolute disgrace. The only people who will benefit are the only people who have benefited from the Waitangi grievance industry—the lawyers, the accountants, the white shoes brigade, or as Mr Peters likes to call it, the “Browntable”. They will all benefit from this bill. They think it is wonderful. Maybe they will give him a campaign contribution, but how many votes will they deliver to the member in 12 months’ time? I say to the Minister that he deserves to go. He should have made a stand against this bill. He should have said to his colleagues that a real Labour Government would not introduce a racist bill, a real Labour Government would have allowed Māori their day in court, and a real Labour Government would not introduce to the Resource Management Act a provision for the protection of recognised customary activities.

It is unfortunate that Part 5 has not already been incorporated into the Resource Management Act, as it will be. If it had been, then some of the erroneous comments that have already been made by various members of the Committee would have been seen in context. In that regard we should think about the comments made by Mr Fairbrother, which place Part 5 in the straight Resource Management Act framework. If we do that, the first thing that Opposition members ought to realise is that this so-called important provision in clause 74, which adds a paragraph to section 6 of the principal Act : “(g) the protection of recognised customary activities.”, is only one matter of national importance under section 6 in Part 2. There is no hierarchy. There is no ranking order under Part 2. They are all matters of national importance. Case law will say that over and over again, and it has said so. Regional plans, district plans, and other plans say just that, and to imply that part of this bill selectively elevates this matter to a height that the other matters of national importance do not have is misleading. It is mischievous to make that assumption.

If one does that, then one can move very, very quickly to the matter of the so-called veto, which has been mentioned by various Opposition members. If those members present had read the bill and carefully read the so-called veto clause, clause 93, which inserts new sections 107A to 107D, they would see, as Local Government New Zealand said, a good set of criteria to guide decision making.

Secondly, that final decision does not constitute a veto, because that decision does the following. First of all, it goes through, provision by provision. If we look very carefully at section 107A(2), we see the matters that the relevant authority must look at. It must consider the effects, the area, the degree to which the recognised customary activity must be carried out to the exclusion of other activities, whether that customary activity can be exercised only in a particular area, and whether it can be mitigated. In other words, at the end of those considerable paragraphs, (a) to (g), an authority considering the percentage—

💬 Phil Heatley: This man was a regional councillor.

JIM PETERS:—that is right—and a regional council hearings committee or a district council committee would be doing just that. They would make a decision that, if there were no longer any significant adverse effect—[Interruption] After consideration of each of the items listed there, a final decision would be made by the consent authority. Where is the veto that has been mentioned by Mr Hide? Where is the veto that has been mentioned by other members? In actual fact, there is no such veto there, implied, or in any other way.

💬 Hon Dr Nick Smith: Of course, there’s subsection (1).

I say to the Hon Dr Smith that when one reads it, one takes in the context of the provision relating to matters of national importance, and one then takes the application that is before the hearings committee, and carefully and selectively works through the criteria set there. That committee, exhibiting balance, will finally consider and make a decision. There is no implied veto. There is no alternative, other than a proper and considerate decision being made. [Interruption] If Mr Heatley were the applicant, it could be made on his behalf, the same as it could on anyone else’s behalf. It ill behoves members to come to this Chamber, to go through the National Party’s 1991 Resource Management Act, and to say otherwise.

The other part of this bill that is highly significant is this: the select committee heard representations made by various national concerns and bodies, particularly with regard to the vision of certain infrastructure and related operations. I am very pleased to say that the alarmist fears that were heard around the country and retailed over and over again about reclamations, port operation, and utilities not being able to go about their tasks were never ever realised.

In actual fact, if members concerned look very carefully at the whole of proposed new section 107B, they will see the guidance, the direction, and the clarity. What does it say? It says, contrary to the alarmist fears that were aired by certain members of this Committee, that whether in Northland or Southland, Timaru or Bluff, this applies: “(2) In this section, infrastructure work and its associated operations is limited to any infrastructure works and associated operations that are owned, operated, or carried out by 1 or more of the following:”. And who are they? They include the Crown, a local authority, a network utility operator, and an electricity generator. I can recall numerous comments made by members of the National Party about Transpower and other utilities that would be severely compromised by this bill. In actual fact, they even implied that wholesale government would stop.

What does this provision state? It includes a port company or a port operator as defined by section 65OJ, which covers one or two, such as Northport, and the Maritime Safety Authority. All those bodies will be able to carry on exactly as they did yesterday. If they have a work that has been planned and that has gone to the first consent stage, they will be able to carry on as they did yesterday. In other words, as the Rt Hon Winston Peters has already said very clearly, what was there yesterday will be there tomorrow, just as we knew it would be. The limitations are those that are considerably exercised in law, and which are clearly outlined here.

So my advice to members of the Opposition is please to read, if only for the first time, the language of the bill, and then come to the Chamber and make their statements in the full light of the bill. They will be able to talk not about the past, the present, or something imagined, but about the strict and express language that this bill uses. That strict, express language will enable development to take place as it did yesterday. It will enable each one of those bodies to carry through. I am very pleased to acknowledge that New Zealand First has helped to make that possible. In other words, this party supports commercial development. It supports the development of an infrastructure. This express provision allows just that to continue as it did yesterday, and as it will do today and tomorrow.

I am grateful for the opportunity to speak on Part 5, “Amendments to the Resource Management Act 1991”. To think that the Hon Michael Cullen and his Government said that they would simplify the Resource Management Act! Fortunately, the member from the West Coast is here. His electorate has one of the longest stretches of coastline. The Resource Management Act has to be one of the most difficult processes, as it stands, particularly after the amendments of the Labour Government. What has the Government done to the people of New Zealand? It has put this Part 5 in the bill.

The really basic test behind this bill is whether it would be simpler just to stick with the Court of Appeal’s Ngāti Apa decision or to go down the line that the Labour Government has gone down. On just about every criterion—confusion, complexity, cost, and many others—there is absolutely no doubt that it would have been much simpler to stick with the Court of Appeal’s decision. After all, yesterday this document that I am holding—which is the redline edition, according to Michael Cullen—was red-hot off the press.

💬 Hon Dr Nick Smith: He’s gone home to sleep.

He probably has gone home to sleep. Yesterday, it was red-hot off the press. We notice in this redline edition that huge parts of the bill have already been deleted. I will speak on clauses 85 and 86. In the redline edition, there is indeed a clause 85 and 86. But if we look at the Supplementary Order Paper, we see that there is no clause 86. Where is it? I hope the Minister in the chair, the Hon Damien O’Connor, can explain to us where the missing clause 86 is. That clause happens to be, of all things, about the imposition of coastal occupation charges. I hope the Minister will take a call to tell us where clause 86 of the redline edition has gone to in the definitive Supplementary Order Paper, because we do not see it there. Maybe the Government is just trying to deny the existence of the imposition of coastal occupation charges, which, to most New Zealanders, is hugely important. Judging by those criteria of whether this bill of the Labour Government is more complex, more confusing, and more costly than if the Ngāti Apa decision had been upheld, here we have, again—as it looks in the redline edition supplied to us yesterday by Michael Cullen—a complete cover-up. It is an absolutely classic example of why the Labour Government should not be passing this bill under urgency.

The Labour Government has, in the secret of the night, one of the most important bills on the parliamentary calendar, which is being done under urgency, and it gets it wrong. It gets it absolutely wrong.

Let us just have a look at clause 84, “Matters to be considered by regional council”. Once again—[Interruption] Well, the Māori members opposite might be looking jocular, but it was they who suggested that 10 percent of the coastline is likely to be involved in these reserves. What else is the Labour Government doing? It is putting 10 percent of the coastline in marine reserves by 2010. That is 20 percent of the coastline. Now those members have suddenly gone quiet. Dover Samuels has suddenly gone quiet. [Interruption] It is up to 50 percent now. Whatever the figure is, there is no doubt that the Labour Government is imposing on New Zealand complexity, confusion, and considerable cost.

Let us just look at matters to be considered by the regional council. “A regional council, when preparing or changing a regional policy statement, must … take into account any relevant planning document …”.

Two speakers previously, we saw the Hon Richard Prebble get to his feet and say that prior to the passage of the Resource Management Act “anyone could do anything so long as it did not cause a nuisance to others.”

💬 Hon Richard Prebble: Prior to any planning law.

Oh, the member is saying now “prior to any planning law”, because he actually said “prior to the Resource Management Act”. He obviously forgot about the Town and Country Planning Act. He obviously forgot about the Water and Soil Conservation Act. What nonsense! The reality is that customary use rights that are protected under this legislation have existed since 1840. What this provision says is that those rights ought not to be undermined by new Resource Management Act consents. That is no different from the principle that applies to existing uses under the Resource Management Act.

When the Act came into effect, some people already had rights to do things. Those things were called existing uses. No one could get a Resource Management Act consent if I had an existing use to do something that would be rendered nugatory by that Resource Management Act consent. Part 5 of the bill does no more than protect the existing use rights of those customary uses under the Resource Management Act. Indeed, it does not actually afford them quite as much protection as is afforded to existing use rights, because there are limited circumstances where the Minister can say: “This adverse effect, this undermining of the customary use right, because of national considerations, ought to be permitted.” But the general proposition here is that Part 5 does not add lots of complexity—

💬 Dr Wayne Mapp: The member has misinterpreted the law. He is a lawyer who doesn’t know the law.

Yes, I am a lawyer and I have appeared in the Planning Tribunal, the Environment Court, the High Court, and the Court of Appeal on Resource Management Act matters, so I do claim to have some understanding of these matters. It is true that all this is doing is effectively giving customary use rights, existing use rights, under the Resource Management Act.

In my comments on Part 5 I will talk, first of all, about the Resource Management Act review process that is under way. Most members will know that United Future is working closely with the Government, the Minister for the Environment, and the Associate Minister for the Environment on a review of the Resource Management Act. Most members of the business community and Resource Management Act practitioners are aware of it, because the Minister has been going around the country saying that we are focusing in this review mostly on process and not on substance.

We have been very careful to tell people that we are not touching Part 2 of the Resource Management Act, because it would be difficult if we did. So members can imagine my surprise when I found that, through clause 74, “Matters of national importance”, we are actually putting into Part 2 of the Act the issue of customary rights orders. We have to ask why we are doing that when we find already under section 6, “Matters of national importance”, reference to “The relationship of Maori and their culture and traditions with their ancestral lands, water, sites, waahi tapu, and other taonga.”

Why is it necessary to add another category of ancestral connection orders? The answer is very simple. It is because New Zealand First and the Government are playing the game of trying to make out that these customary rights orders are for everybody, when everyone knows they will actually be only for Māori. The idea that the Auckland regatta could get one, which was debated a lot in the debate on Part 4, is absolutely ridiculous. We believe that it would be better if the Government and New Zealand First were simply honest—because honesty is always the best policy—and just told everyone that only Māori will get customary rights orders. That is OK with us in United Future, because Māori are entitled to them where customary rights are legitimately proved to have been in existence from 1840. We are quite comfortable with that. But the sham of trying to pretend that customary rights orders will be applicable to Pākehā New Zealanders is totally dishonest. It leads to having to insert this extra category under “Matters of national importance”, which could lead to some complications in the implementation of the Resource Management Act. We are trying to avoid that; we are trying to get it simplified. I make the point that the Government and New Zealand First would do best just to admit tonight in all honesty that this provision is only for Māori and remove it from the legislation, so that we do not have any complications with the Resource Management Act. Then we could all get on with recognising genuine rights. I believe that most good New Zealanders would be happy to do so.

I will make some comments about the new clause 100, “Vesting of reclaimed land”. When the original version of the clause first appeared in the bill, representatives from ports all around the country queued up before the Fisheries and Other Sea-related Legislation Committee, because they were obviously very concerned about what was being taken away from them. A strange policy was emerging—a policy that had nothing at all to do with the Ngāti Apa case—whereby henceforth the Government would not allow anybody who had reclaimed land, raised it from the foreshore and seabed, and made it into dry land that could be walked on, driven on, and built on to have private title to it any more. Yet it has been fine in all previous years for that title to be issued.

In fact, it is just and right for it to be issued. If someone applies for a resource consent and pays all the costs of reclaiming the land, building the retaining walls, filling it all in, and everything else, why ought that person not then be able to claim private title to it? If the resource consent has been given, it would seem entirely logical that a fee simple title to that land should be allowed. But, no, in the initial bill along came the land-grabbing Department of Conservation, which thought that this legislation was a way in which it could hang on to some more land and only allow for 50-year leases in the future. That was totally unacceptable to the port companies. They all appeared before the select committee. The Timaru port people, who have their own Act—a very good Act, which they are very lucky to have—complained because they were going to see this removed.

It is good to see that many of those issues are being addressed in the amendments the Minister is now proposing, except that there will be only a small window of opportunity for someone to sneak through and still get, perhaps, a title or at least a protectoral lease.

I too would like to address these amendments to the Resource Management Act. I do so because I am intrigued by the changes—the extreme amendments, I have to say—the Government wants to make on behalf of Māori in order to appease them in some way. I do so also because I am on the Primary Production Committee considering the Aquaculture Reform Bill.

Members will recall that that bill also deals with amendments to the Resource Management Act. The Labour Government has given Māori 20 percent of marine space as some sort of horse-trading action for silence on the foreshore and seabed legislation. It is interesting to me because we see, particularly in these amendments to the Resource Management Act, as has been pointed out by Richard Prebble of ACT, that the only winners in Part 5 are the lawyers, the accountants, and that industry—that gravy train. That gravy train is pushed on by the Resource Management Act, at present. It is also fed by the Treaty of Waitangi industry, and is now being given an extra boost through this legislation, particularly Part 5.

We know that the quid pro quo deal—the 20 percent of aquaculture space given to Māori—has not shut them up. They are not satisfied with that deal. They have horse-traded, and have come back and said: “No, 20 percent isn’t enough, and we’re not going to be silent.” They are not happy with this bill, Part 5, and these Resource Management Act amendments.

Clause 100, “Vesting of reclaimed land”, for a start, deals with an issue that our port companies around the country are having to grapple with. Māori are not satisfied with even that side of it. They will find themselves in court seeking their justice, and so will everyone else. Every New Zealander is dissatisfied with this legislation, because when it comes to deciding customary rights, ownership, access, and issues to do with the Resource Management Act, no one in the courts or outside the courts will get any satisfaction, at all.

I would particularly like to bring to members’ attention the restrictiveness of clause 100 and the clauses following it that deal with the issue of reclaimed land. There has been a lessening of some restrictive provisions that originally related to the reclamation issue. We know that representatives from port after port filed into the select committee, and they also put their case forward as a group. They were concerned that they needed a right in perpetuity, or at least to have some sort of right of renewal or right of first refusal process, to have certainty for the future. They have put in extreme expenditure and effort, through years of going through the Resource Management Act process, to get original consents to reclaimed land.

Marsden Point port is a case in point. I was interested to listen to the member Jim Peters, who is a shareholder on my behalf and on Dover Samuels’ behalf, as Northland MPs, because he draws a salary from the regional council. He draws a salary from the taxpayer and from the ratepayer, and he is sitting in this Chamber, as a shareholder, putting forward the case that will undermine his port. That reclamation at Marsden Point will undermine Dover Samuels’ port and it will undermine my port. So there we have it. The member paid by the Northland ratepayer is fighting the Northland ratepayer.

I move, That the question be now put.

What a great choice and a privilege it is to be able, at 11.20 p.m. on 17 November, to talk about this really critical part. As I look across a crowded debating chamber to the Māori members on the Government benches, I can so easily reflect that some members have made no contribution at all to this debate. I would like to hear from Mahara Okeroa. He has strong views on these issues. What has Dave Hereora, who is with me on the Justice and Electoral Committee, said on these issues? Absolutely nothing! What can he contribute? It may be the same answer—absolutely nothing. But he should be given the opportunity to contribute. That is why I encourage those who are present in the debating chamber to make a contribution. In this call, which I hope may be one of many that I make as this debate runs on into late tomorrow afternoon, I would like to comment on two particular things. Those two particular things concern clause 83.

Clause 83 is concerned with the contents of New Zealand coastal policy statements. It is a sadness about the Resource Management Act that we have a great plan for national policy statements, but what has happened to them? They were reduced to only one, which was a New Zealand coastal policy statement full of fudge and waffle. So in clause 83 there are provisions that add further statutory criteria relating to the protection of recognised customary activities. But worse still is an old issue that bedevils the Resource Management Act—which has, in my view, unnecessarily delayed the Local Government and Environment Committee—concerning iwi planning documents. I am sure that members of the committee will be very much aware that there are iwi planning documents of incredible variety, ranging from the sophistication of Ngāi Tahu to the poor work that Tainui has done recently. There should be an opportunity taken in this legislation to correct those issues, so that iwi planning documents have a credibility and a power that enable them to have a real role in the context of the issues that regional councils and territorial authorities have to deal with. I look at the young Minister David Benson-Pope who is seated opposite me, and who has some great charge from the present Government to revamp the Resource Management Act. I ask what he is doing about that. We know the answer to that. Sadly, it is nothing much.

In the course of this debate, I have touched on an issue that I think members need to reflect more fully on. It is that although issues of Māoriness were very relevant in 1840 and remained relevant for many years, they are of much less significance now. They are of much less significance for a number of reasons, but maybe the most significant of those reasons is the fact that Māori and non-Māori have intermingled. Whereas it was possible at one stage to talk in New Zealand of Māori and Pākehā, there is an uneasiness about using those classification tags now. A happier way to describe those issues in a country that is now blessed with a strong ethnic and cultural diversity is perhaps to talk about Māori and non-Māori. It is appropriate in the context of this part particularly, with the emphasis on the Resource Management Act and the issues in that significant statute that touch on iwi consultation, iwi planning documents, and those things, to talk for a moment about what a Māori may be. I raised this in the debate on an earlier part, and I think that I attracted a good deal of interest from members like Mahara Okeroa, who are the new philosophers who are leading Māoridom through 2004. It certainly will not be into the new Government that will sit in Parliament in 2005, because those who currently sit on the Government benches will be sitting over here in Opposition, and those who are on the Opposition benches will be sitting quite determinedly over there in Government.

I move, That the question be now put.

I am very pleased that we have managed to get a call on Part 5, since the Greens have a large number of amendments to it—and I am sure members are all pleased to hear that. I want to describe those amendments to members, so that they can be clear about the changes the Greens want to see in Part 5. We are making an amendment to the new clause 79, which concerns section 33 of the Resource Management Act. That deals with the transfer of powers, and effectively it allows local government to delegate decision-making authority to a variety of organisations, including iwi authorities. The power contained in section 33 to delegate authority has never in the history of the Resource Management Act ever been used to delegate any authority of any description to any Māori organisation—not one single local authority has ever used that provision to delegate decision-making authority to Māori. That is an absolute disgrace. There are many Māori organisations that have expertise, and that know and understand the locality, to which a variety of decisions could be delegated, but never has a local authority used that delegating power.

We have made amendments to make sure that not just iwi authorities but the holders of customary rights orders, the holders of territorial customary rights orders, iwi, and hapū, are able to have any delegated authority given to them from the local authority. Really, it is about trying to encourage a cultural change in local government in order to recognise that Māori can be trusted—although, of course, this Government fails to provide any kind of good model for that, because this whole bill is about how Māori cannot be trusted. The Māori MPs in Labour and in New Zealand First, clearly understand that this bill is about the failure to trust Māori to do the right thing, and to share their resources with the rest of the country. Even given the fact that Māori have been sharing their resources with the whole of the country for the last 150 years—so many of our national parks, our national heritage of maunga and lakes, directly benefit the community and the nation as a whole because of Māori generosity—this Government fails to provide any kind of model of trust. Local authorities, I guess, can be excused to a very minor extent for not having any guidance, certainly from central government, as to how to trust Māori to make decisions about those issues for themselves.

We have suggested an amendment to clause 86, which concerns the coastal occupation charges. Our amendment would ensure that a territorial customary rights holder would take a share of any coastal occupation charges over any area to which that order applies. It is perfectly reasonable for customary rights holders to have a share in those resources, given the limited capacity that any Māori will have to exercise any kind of control over those areas under the new provisions for a territorial customary rights order. Our amendments to clause 89 through to clause 104 will ensure that the holders of customary rights orders and territorial customary rights orders will be taken into account if, for example, there is a plan change or a resource consent application. Our amendments remove the requirement that it is the council that has the discretion to determine whether a resource consent or plan change will have a significant adverse effect on customary rights. We have taken out that discretion, and made it a matter of fact. We have taken out the requirement that it be a significant adverse effect; rather it can simply be an adverse effect. That will ensure that the apparent protection in this bill for customary rights—which are being traded for the customary rights that Māori will get in the courts—actually do have some kind of effect in the Resource Management Act, and that councils have to advise the holders of those customary rights orders.

They should have to tell them if things are happening in the areas to which those orders apply, and that does not have to be a significant effect. A significant adverse effect is actually a very high threshold, especially if it is left to the local authority to make that decision. If councils are failing to transfer powers under section 33—

I move, That the question be now put.