Foreshore and Seabed Bill

I shall make a very brief extension to what I was saying last night, just to indicate to the Committee that, on Supplementary Order Paper 306, my colleague Helen Duncan in particular, Metiria Turei, and also Dr Wayne Mapp have raised with me the issue in relation to the Bayswater Marina. The Supplementary Order Paper in that respect deals with that particular issue. It is narrowly cast to make sure it does not get a lot of other things into the net that I think the select committee itself was clear should not be brought into the net in that case.

I shall deal with two issues in this part. The first issue I will deal with is in relation to North Shore City.

It became evident in the select committee some weeks ago that there was an enormous risk that North Shore City would be denied the fruits of the results of the High Court decision. The facts are these. Bayswater Marina was established 10 years ago. At that time, access provisions were done by Resource Management Act consents. In recent years there has been an ongoing battle, I guess, between the city and the marina over a whole range of things. That culminated in litigation over the marginal strip. North Shore City, acting on behalf of the residents, particularly the Ngātaringa Bay Society, won a case that, yes, there shall be a marginal strip 20 metres wide, and there was a very, very fully argued judgment in the High Court to that effect. That went on appeal to the Court of Appeal.

Then the Government puts out its Foreshore and Seabed Bill, and that decision has stayed. But the legislation would have had the effect of cutting right across the decision of the High Court, with no other remedy. The whole case of the Government in relation to this bill is that it is the alternative remedy to the Ngāti Apa case. Whether or not people accept that, that is the Government’s argument. In the North Shore instance, however, the bill would simply cut across the decision and there would be no remedy. Effectively, the Government was saying that the Bayswater Marina had won by legislative fiat. Public access would not have been as certain, because Resource Management Act consents are not the same as marginal strips.

That seemed to me to be wrong. I dealt with that issue extensively at the select committee, and Dail Jones in particular would know that. I have spoken at length to the North Shore City Council, and I know that it has made long and urgent representations. So I do want to acknowledge that finally that issue has been recognised—only yesterday, I might add—by Supplementary Order Paper 306. Unfortunately, of course, that would have been completely unnecessary if this matter had been dealt with properly at the outset. Alternatively, if this bill had never existed, this issue would never have arisen. So in many ways the Supplementary Order Paper is there because of the Government’s own negligence in relation to this matter. At best, it is fixing up its own negligence.

Frankly, I am not sure whether I need to give any credit to New Zealand First in relation to this issue. Its members will have their own views. Certainly, I know that the mayor of North Shore City, acting on behalf of the residents, and the deputy mayor, and Councillor Darby in particular, have gone to enormous efforts with the Government to have what would have been an enormously serious anomaly removed. What will happen now, as I understand it, is that the cases will proceed and, one way or the other, one of the two parties will win. The Court of Appeal will decide whether the North Shore City Council or Bayswater Marina will win. That is, of course, a reasonable outcome. As I say, unlike the rest of the bill, which is the Government’s alleged response to the Ngāti Apa case, this aspect of it would simply have had a nugatory effect without the Supplementary Order Paper. So I do acknowledge that point.

The second, broader point in Part 6 is, of course, about Tainui. We all know that, and I know that in particular, as some people may well imagine. Clause 115A allows those treaty settlements. This is the whole point, I say to New Zealand First. It says it has guaranteed Crown ownership on behalf of all New Zealanders. Right at the very time this bill is in the House, the Government is negotiating with Tainui and others up and down this country. I predict that it will transfer, in the same manner as with the Rotorua lakes, to those claimants the fee simple—and I want to be very clear about that—to the West Coast harbours and perhaps other parts of New Zealand.

The whole idea of Crown ownership being guaranteed is shot through with that exception. We on this side of the House know that that is the deal the Government has struck with its own Māori caucus. That is why those members are coming down here and meekly voting for the legislation. We will be very interested indeed to see what Nanaia Mahuta’s vote on this legislation is. One wonders whether that was how her vote was procured, as well.

This is a very important issue. The trouble is that it is double-dealing. At the very time that the Government says it is guaranteeing Crown ownership, it is doing that deal behind closed doors to sell off Government ownership. Its claim will be, of course, that it is a separate Act of Parliament. We know that it will just trot across to the Green Party, the Māori Party, and possibly even New Zealand First, to get support for that kind of deal. National has drawn a line in the sand.

It is refreshing that the National Party will support this bill. The National Party will be supporting the Government’s and New Zealand First’s amendment to clause 117, so we will be getting National Party support for this legislation—at least, for part of it. It is unfortunate that the National Party did not support the moves to protect reclamations and suchlike. It is unfortunate that the National Party could not support the clause that vested ownership of the foreshore and seabed in the Crown. What is the difference between supporting the Bayswater Marina situation and opposing the foreshore and seabed belonging to the Crown? The logic fails me entirely. The National Party could have voted for the clauses that did away with the amendment to Te Ture Whenua Maori Act and the 1991 legislation, but, no, it voted against all those clauses. It is good to see that we are getting the National Party to have some slight degree of sense.

New Zealand First is delighted with this provision. We were informed on only 16 November by the North Shore City Council that something needed to be done, and today, 18 November, amending legislation is being passed through the House, with the initial support of New Zealand First to make sure it happened. Up until now the National Party has voted against every provision of this bill, and we are only too delighted to help out the court process, which is being allowed to continue in this case.

Of course, the major aspect of this bill for New Zealand First is clause 112. It never occurred to the National Party at any stage that if clause 112 went through in its initial form, it would have allowed the Government secretly to enter into any type of agreement with anyone, and no one would ever have known what had happened in that decision. There could have been an arrangement between the Government and any person, any Māori tribe or whatever, whānau, hapū, or iwi, with regard to the foreshore and seabed, and no one would have known the outcome of it. Fortunately, the New Zealand Law Society’s submission indicated that that issue needed to be resolved, and New Zealand First has taken up that suggestion, which we would expect the National Party to support. Will the National Party support the New Zealand First amendment, or new clause 112, which makes it clear that any agreement entered into between the Government and whānau, hapū, or tribe must be registered in the High Court? There must be an application and affidavits in support, and the High Court is required to check off the requirements of section 28 to make sure that they have been fulfilled, so that the matter is open and above board, for the protection of, shall we say, European New Zealanders but also Māori New Zealanders, who then can see what other tribes have been doing.

As far as Dr Wayne Mapp’s comment about clause 115A is concerned, the effect of this legislation is that in any treaty settlement there will be two pieces of legislation—one for the treaty settlement, and one for any transfer of the foreshore and seabed. Of course, nothing at law, or in parliamentary practice, or in constitutional practice prevents a Government from passing a bill that allows the Government to do anything it likes, including transferring ownership of land. [Interruption] The previous National Government did that time and time again for Taupō. National members just do not understand the constitutional requirements and the situation in New Zealand. At any time a Government can sell anything. The National Government did that in the 1990s, the Labour Government did it in the 1980s, and New Zealand First is making sure by means of clause 12 that such issues must come before Parliament for a decision to be made, rather than a Nick Smith hocking off and flogging off parts of the country, as his National Party did when it was in office in the 1990s. This bill, clause 12 in particular, makes it clear that any sale of foreshore and seabed land must come before Parliament—as Larry Baldock has indicated, as well. In terms of clause 12, Parliament must enact a special separate Act on anything to do with the foreshore and seabed—including any settlement provision. That is an extra requirement of this legislation—two pieces of legislation. There will not be the secret type of deal that the National Party Government used to get up to, then rush one set of legislation through the House.

I thought Dr Wayne Mapp understood this matter. It was told to him time and time again in the Fisheries and Other Sea-related Legislation Committee that a Government—

💬 Brent Catchpole: It’s too difficult for him.

It is too difficult for Dr Wayne Mapp to understand. He was informed time and time again that this bill requires two sets of legislation to give effect to a treaty settlement that involves the foreshore and seabed. At law, constitutionally, a Government can do anything it likes, provided that it passes the measure through Parliament. That is the right of a Government. No Act can bind a subsequent Government. That is why one has to vote for New Zealand First—to make sure that what used to happen does not happen in the future.

We have just seen another expression of why the New Zealand First Party should be thoroughly ashamed of itself. This legislation is being passed through Parliament today only because of the support of that party. I think Michael Cullen is chuckling to himself because he knows he has duped New Zealand First. We heard yesterday in the debate on Part 5 that United Future had been duped. Larry Baldock made the point that he had had an undertaking from the Government that the review of the Resource Management Act would not intrude into Part 2, and he was somewhat aghast when he found that this measure is intruding into a review of Part 2. He felt duped, and so he should. The funny thing is that Winston Peters and his merry band have not realised they have been duped. They are complicit in having this bad legislation rammed through Parliament, and do not realise what they have agreed to. That has been obvious from all the contributions we have had from the members of that party.

I acknowledge the efforts of “Captain Wayne Mapp” in the Fisheries and Other Sea-related Legislation Committee. Certainly, with regard to the Bayswater Marina he put up a valiant argument on behalf of his constituents. But, of course, that is just one small example of where due process has been utterly denied by this arrogant legislation. The whole of the legislation is all about riding roughshod over due process. That is one of the worst aspects of it. Indeed, it will be the basis of a new round of grievance that we will see within Māoridom, triggered from this legislation. From the day it is passed and gets its royal assent, be it today or tomorrow, there will be a legitimate new grievance in this country, because of this Government’s failure to follow due process. That is what we have seen in respect of the Bayswater Marina. With one stroke this bill effectively takes away rights that were won in court—strips them away from the party that was to benefit.

But when we look at Part 6 we see that it is where all the regulations are. With all legislation, we have to appreciate that the devil is in the detail. We are going to have all these new regimes. We will have public foreshore and seabed reserves, and, of course, they will all come with their own little management plans. We will have Department of Conservation officers up and down the country preparing little management plans.

💬 Hon Richard Prebble: They will love it.

They will. It will be like the Department of Conservation is on steroids. Its staff love these new activities where they can fiddle. It is just unbelievable. Of course, the Minister of Conservation is becoming tsar-like in his powers in this country. It is quite extraordinary. He assumes the sorts of absolute powers of the tsar as he takes over more and more of this country. As well as being tsarist, the department is also Stalinist, with its heavy emphasis on rules, regulations, and control. It is extraordinarily bad legislation.

I draw the Committee’s attention to clause 114, where we see some of the detail of the new regulations and rules—another layer that we can expect. What has not been mentioned in this debate to date is the impost that this legislation will be on local government. It is crumbling under the burden of all these additional tasks, and the demands for endless consultation. It is under incredible strain. The Government blithely legislates, but where is the rubber going to hit the road? It will be at the local government level. It has responsibility for administering the Resource Management Act. We have another layer of these sorts of nebulous spiritual references, which local government—with hearings and consultations—will be drawn into and involved with. Communities up and down the country will realise very soon that this legislation is an absolute crock of the proverbial.

Michael Cullen sits there and smiles and smirks. He is quite self-assured that he has duped United Future and New Zealand First. He will get this legislation through Parliament, it seems, but that does not make it good legislation.

I would like to address some comments to clause 112, which is the clause that allows for agreements directly between the Minister and claimants—we assume, Māori groups—who are seeking a territorial customary right under the court process.

The bill in the form it was introduced and referred to the Fisheries and Other Sea-related Legislation Committee contained a clause 112 of about five or six lines that provided quite wide scope for Ministers—it did not identify which ones—to “enter into an agreement with a group to recognise that, but for the vesting of the full legal and beneficial ownership of the public foreshore and seabed in the Crown by section 11, that group would have held territorial customary rights over a specified area of the public foreshore and seabed.” Understandably, this provision caused a great deal of concern because it raised the issue of backroom deals whereby the Government, in order to try to calm down many of the objections to this legislation, might dish out lollipops, to some extent, to try to gain back favour amongst, particularly, the Māori community.

I think many people have called for Māori to have their day in court over this issue. Although many people in the land do not necessarily believe that Māori should have the right to foreshore and seabed title, they have been upset by the cutting across of due process, which would have enabled Māori to go to court to check it out. Clause 112 was a complete contradiction to that. Rather than their being given the right to go to court, they would have the right to go to the Minister and perhaps seek a backroom deal. It is good to see that there is an amendment that makes it a lot more transparent. I do not think it goes the whole way to answer some of the critics, but it makes some improvement.

But I want to say first of all that although many have called for Māori to have their day in court, I believe that what ought to have happened in the very beginning was that the Crown should have had its day in court. When the Court of Appeal made its decision, it ought to have been the Crown, first of all, that went off to the Privy Council to have that decision tested thoroughly at the highest court in the land at that particular time. The ruling of the Court of Appeal that overturned the long-held understanding under the Ninety Mile Beach case would have been tested out thoroughly, and then the Government, having established that fact clearly in law, could have proceeded to introduce legislation if it needed, based upon the fact that everyone had had his or her day in court. Really, the Crown was the one that should have led that case.

Many of us were under the impression, or at least I was, that the appeal by Port Marlborough to the Privy Council was going to give some satisfaction in that regard, until during the select committee I learnt that its basis for appeal to the Privy Council was not as clear as many had understood it to be, and that it would test only a small part of the Court of Appeal decision. Had that appeal gone to the Privy Council and a decision been made, it still would have left some unanswered questions. Many submitters to the select committee urged the committee to wait until 15 or 16 November, when the first hearing was to be held—and it possibly would have been 6 weeks after that before any ruling was given—but then we found, even before we got to 15 or 16 November, that Port Marlborough had withdrawn its application to the Privy Council.

So these questions will never be answered. I think one of the concerns about the legislation is that there are some unresolved questions around the country that people will not get satisfaction over, and they will, therefore, make up their own minds and draw their own conclusions about the justice of this issue. I think that is regrettable. This issue is important. We are seeing already, as was mentioned in the news this morning, that people are taking crazy action over this legislation. United Future is very concerned that, because of the process, some people may do some very foolish things around this country that cause all of us to suffer as a result. The only way to have really dealt with this issue was to have taken some more time to make sure that everybody—or, at least, as many people as possible—was on board with the real facts. I think that the case going to the Privy Council would have helped that process.

However, we are faced with this legislation today. We see that the Minister’s amendments that have been put before us make some improvement to clause 112 whereby at least there will be some transparency.

I want to expose some of the real hidden agenda in Part 6.

💬 Hon Richard Prebble: You will need an extension of time—there’s so much of it.

There is so much of it, as Richard Prebble quite rightly says; there is a huge amount. The first issue I want to draw attention to is the cunning little exercise from Dr Cullen in respect of the Resource Management Act and the issue of ancestral connection orders. The New Zealand First Party quite rightly has sympathised with this side of the House in respect of reform of the Resource Management Act, and therefore it was not prepared to be part of the nonsense provisions in the original bill that would have given even more leverage to iwi. So those provisions have been dropped, except we are now told they are to be rolled out in a resource management amendment bill to be introduced next month—and no doubt to be supported by the United Future Party. This is the sort of “a-b” game that is going on in this Parliament between New Zealand First, the Greens, and United Future, by which Labour is able to get its wicked way in terms of legislation that will take New Zealand backwards.

We also had the contribution from Dail Jones, and he was quite correct when he said we cannot bind a future Parliament. The Government can, quite rightly, enter into any treaty settlement it seeks, and it must come back and legislate.

💬 Darren Hughes: Is that right or wrong?

That is quite correct. But then why on earth, I ask the member for Otaki, do we need these provisions, which are an invitation to the Government to go down this road? I will say why. It is because this Government has done a sneaky deal. On the one hand it is able to put hand on heart and say all the foreshore and seabed are going to be vested in the Crown, but there are these sneaky little invitation clauses that will—

💬 Darren Hughes: We’re not like that.

Well, Government members are not like that! I guess we have to take their word, like we take John Tamihere’s word about his not taking golden handshakes. That is the full integrity that we have from members of the Labour Party! They have a track record of saying one thing and doing the opposite, and we see so much of it in this bill. I simply ask Mr Darren Hughes whether he can give me an absolute reassurance that there will be no deals with Tainui in respect of the harbours on the west coast of the North Island.

💬 Hon Dr Michael Cullen: We have scarcely begun negotiations yet.

💬 Darren Hughes: What did the High Court judge say about this man?

Mr Darren Hughes simply gets into some completely irrelevant issue, and Dr Cullen is even more revealing in his out of order interjection. But he is even more revealing when he says it is all subject to negotiation. Does that give New Zealanders great reassurance that the foreshore and seabed will be vested in the Crown? All we get from Dr Cullen is that it is all open to negotiation. We know, indeed, the route that we are heading down in that respect, because these provisions are the entrée for the transfer to respective iwi of those harbours and significant areas of foreshore and seabed.

I also want to deal with the issues around the bureaucratic nonsense. My greatest frustration in this debate is the lack of speeches that have been focused on what is a really sensible set of legislation under which New Zealand manages its foreshore and seabed in the interests of all New Zealanders. We have not had anything of that sort from this Government. All we have had is slick political deals that are designed to solve a political problem. In fact, what we see in this Part 6—and it really does come into focus in it—is the absolute mess we are creating in the law in respect of the management of the foreshore and seabed. We will have these new foreshore reserves. They were publicly announced on only Tuesday of this week, but they will be law by the end of today. Then we are to have, under the Resource Management Act, a different set of plans. I simply ask why, for goodness’ sake, we would want to have a foreshore reserve alongside marine reserves, alongside taiāpure reserves, and alongside mātaitai reserves, as well as having another set of plans under the Resource Management Act that are required by law. What sort of mishmash mess are we creating in terms of sensible management of our foreshore and seabed? This part will create a huge challenge for a future Government to clean up the confused laws we have created for the management of our foreshore.

I want to take a call on Part 6 and comment on a couple of points—firstly, in respect of some issues raised by the member who has just spoken. There has been some concern throughout the whole debate that a foreshore and seabed reserve, in itself, could prevent a marine reserve or a mātaitai, but in fact if a management committee, within its management plan, decided it wanted a marine reserve or a mātaitai, then under this part of the legislation it could indeed provide for and apply for these.

I say to the speaker before me that after the whole process of establishing our foreshore and seabed reserves has been gone through, a management committee that wanted a marine reserve could itself make an application under the Marine Reserves Act to redesignate its reserve as a marine reserve. I think it could achieve aims that are not too different from those of all New Zealanders in terms of protecting the marine biodiversity of our foreshores and seas. So it is all possible. The point here is that it is a decision that can be made entirely within the foreshore and seabed reservations provided for in this bill. I think it is a bit of game-playing to say it cannot happen, because it can. It is all within the possibility of the decision making of the management board and the management plan. We should embrace the kind of ability that restores decision making back to local peoples and their communities—local decisions made by local peoples and their communities. That is important.

The clause in Part 6 that I want to talk to in particular is clause 115, which will be no surprise to members. It is worth reading. The proposed new heading is “Provision saving Māori reservations”. The clause has some direct relevance to areas along the Manukau Harbour and, in particular, to Whatapaka Marae. Subclause (1) states: “This section applies if, before the commencement of this section, any land that is in the public foreshore and seabed has been set apart as Māori reservation—(a) by the Chief Executive of Te Puni Kōkiri under section 338 of Te Ture Whenua Maori Act 1993: (b) on application of the Minister of Māori Affairs under section 339 of Te Ture Whenua Maori Act 1993: (c) upon the express recommendation of the Māori Land Court under section 340. (1A) A Māori reservation referred to in subsection (1) must be treated as if it were a specified freehold interest for so long as it is set apart under section 338, or section 339 or section 340 of Te Ture Whenua Maori Act 1993.”

Within the clarification of that, there is a place along the Manukau Harbour—a place called Whatapaka Marae. Prior to the introduction of this bill that marae was able to extend its reservation out into the Manukau Harbour. That happened after quite an extensive tribunal hearing for the Manukau Harbour following the Foreshore and Seabed Endowment Revesting Act. It enabled the marae to extend its reservation in order to look after its flounder and oyster beds. Kaitiaki from the marae ensure—they do not patrol—that the resources there are continually replenishing, and that there are enough to feed the marae. All types of fishermen go into the reserve—Māori, Pākehā, whoever. The point is that when it comes to regulating to ensure that the resources are continually replenishing and that people are respecting the values of the marae, a couple of the marae kaitiaki go out and say: “Not today, mate.” , and everybody knows why—it is not a good time; there are not enough flounders around just then. It is pretty well respected. If people would like to go out to that marae and have a look at how it actually happens, they will see that a lot of cooperation exists amongst all peoples in the area, Māori and Pākehā alike, and that they are able to manage what is happening in the reserve. The reserve goes into the Manukau Harbour quite well, in fact.

So again I think that clause 115 is a clause that will be embraced, certainly in terms of the particular example I have cited. I would like to comment on the origin of that because there has been some lack of historical recollection in the Committee about these types of issues.

The real purpose of this bill is finally revealed in clause 112. This is the clause that accepts there will be cases where this bill confiscates title and rights from Māori. It acknowledges that this bill is a confiscation, and then it attempts to provide some redress for that confiscation. Subclause (1) states: “but for the vesting of the full legal and beneficial ownership of the public foreshore and seabed in the Crown … that group … would have had a claim for territorial customary rights over a specified area …”. The redress that it provides is a negotiation process, at the discretion of the Crown, with no requirement for any outcome, no requirement for any redress, but there is a negotiation process.

But, worse than that, there is no requirement for any public notification of who is being negotiated with, so the Crown can simply talk to the largest group in the area, conduct a private negotiation with them, and reach a conclusion. There are to be no ancestral connection orders to identify which iwi and hapū have an interest in particular areas of coast. We have seen already from the treaty settlement process that there are often smaller hapū who are left out of the process, and the agreements are made without their participation or inclusion. These negotiations may go on without involving all possible claimants. People may wake up the next morning to find that an area of the coast in which they believe they have a very strong interest is subject to a territorial customary rights agreement between somebody else and the Crown. It is particularly likely in areas of—[Interruption]

💬 Hon Richard Prebble: I raise a point of order, Mr Chairperson. I was trying to listen to the member and there was a very loud—

💬 Rt Hon Winston Peters: Why would you want to?

💬 Hon Richard Prebble: I think it is very offensive for the leader of the New Zealand First Party to come over and stand just behind me, and then hold a loud conversation with Mr—

💬 Rt Hon Winston Peters: I did not.

💬 Hon Richard Prebble: Yes, the member did.

The CHAIRPERSON (H V Ross Robertson): I can deal with this. It is a longstanding convention in the Chamber—Speaker’s ruling 57/5—and [Interruption] I say to Mr Jones that I am on my feet.

💬 Dail Jones: I wanted to apologise. It was me who was doing the talking.

The CHAIRPERSON (H V Ross Robertson): It is understood that there is no comment in that part of the Chamber because of the muffling effect it has on the microphones. I notice that the member has desisted, and I thank him for that.

The Green Party amendment to this clause tries to address this situation. It is in the name of Metiria Turei, and it requires notification to and consultation with other potentially interested parties that these negotiations are going on, so that they may register their interest, and I commend the amendment to the Committee.

The second amendment removes the requirement to go back to the court in order to have these agreements ordered by the court. There is no particular reason to add this requirement. It causes delay and cost after the agreement has been reached, when there has already been a negotiated process, and there is already requirement elsewhere that a copy of the agreement should be served on other interested parties, Ministers, and local authorities. There is no particular reason why the applicant should have to go back to the court to get it all ordered there. All of this, of course, could have been—

💬 Rt Hon Winston Peters: Why go to court? Why have the costs of going to court?

This is an entirely different situation from an applicant going to court under the original situation—to the Māori Land Court. This is after the Crown has taken away that right and reached a negotiated agreement for something else. One does not, at that stage, apply to the court to settle something that has already been settled. All of that, of course, could have been avoided had the Greens’ policy of recognising Māori underlying customary ownership been adopted with an amendment to Te Ture Whenua Maori Act, that where customary title was found, it could not be turned into freehold saleable title, and that public access would be negotiated on that title. Every Māori leader whom I have spoken to about this bill was in favour of that outcome and was prepared to accept it.

💬 Rt Hon Winston Peters: Name one.

I can name lots of them.

I want to make some comments on this part. To start with, I will make a couple of observations on the comments made by Dail Jones. He raved on about the National Government selling things off in the 1990s, but, of course, he failed to say that quite a lot of New Zealand assets started being sold off in the 1980s when Labour was in power. But having said that, I just do not know how any of that is relevant to now, because, quite frankly, at that point there was not a Government saying to the public of New Zealand: “Don’t you worry. You’ve got ownership of the foreshore and seabed through Crown ownership, and you have it in perpetuity.” That provision was not around at that earlier time, so I do not see the relevance of the member’s remarks.

I refer now to clause 112. Despite the comments of Larry Baldock and the fact that he felt heartened because there have been some amendments to that clause, it is clearly still open to the kind of negotiation that the public of New Zealand have grown weary of—the backroom stuff, and deals going on. It is still open to the charge of backroom dealing. Quite frankly, I am surprised that Mr Peters supports this. I thought that he did not like this kind of carry-on either, where things are done behind closed doors. If that is not the case, maybe he will explain it to me but, on the face of it, that is how it looks to me. Under clause 112, the Attorney-General—whoever that might be; I have to hope it will be someone else—and the Minister of Māori Affairs may enter into an agreement. So all that kind of carry-on goes on behind closed doors. If they come to some agreement that, but for the vesting of the foreshore and seabed in the Crown, Māori would have had, basically, a freehold title, then that shall be confirmed by the High Court.

There are two points to be made. The first point, which Jeanette Fitzsimons referred to, is an acknowledgment, of course, that Māori would probably have had freehold title issued to them. That also flies in the face of all of those who were going along nicely and thinking, wrongly, that the Crown already owned the foreshore and seabed. So it is no wonder Māori were up in arms—and still are.

The other part of this is that this backroom talking having gone on, and the Ministers having reached some agreement with a Māori grouping, they will then have to go to the High Court. That raises for me the issue that this bill—this framework being set up—is not only complex but also has built into it the capacity for endless court applications to be made. I want to ask whether the courts will be properly resourced to deal with all that additional work. In particular, how will the applicants be expected to have their customary rights recognised? Will there be legal aid? Is that another cost that will be piled on top of this legislation? I would like Dr Cullen, the Minister in the chair, or Dail Jones to tell me how people are to file their applications in the High Court without incurring cost. [Interruption] OK. So this is just building up expectations without giving the proper means for people to get their customary rights recognised?

💬 Dail Jones: This is not a National Party gravy train.

OK. It is a New Zealand First gravy train. Right, great! It is not a National Party gravy train; it is a New Zealand First gravy train. I turn to clause 115A—

💬 Rt Hon Winston Peters: No gravy train!

I tell the member that there will be a gravy train. I am sorry but this will create another gravy train—it will. As long as people have to go to the courts, there will be a gravy train.

I rise to speak to Part 6 of the Foreshore and Seabed Bill, and I would like to reiterate what my colleague Ken Shirley said. This part really is about regulation and, of course, the devil is in the detail. It warrants very close reading. There is any number of things that I could talk about, but I want to draw the Committee’s attention, in the first instance, to clause 114, “Regulations”, which in particular talks about the role in the regulations surrounding wardens. Clause 114 states: “The Governor-General may, by Order in Council, make regulations for any of the following purposes:”. So there will be no discussion about that, and no parliamentary debate. The clause provides for the appointment of wardens, it prescribes additional functions of wardens, and it prescribes any duties or powers to be exercised by wardens. Clause 114(bd) prescribes “the means, (including, without limitation, identity cards or badges, or both) …”. So here there is in legislation regulations that prescribe identity cards and badges for the wardens who will patrol the beaches, up and down, up and down—

💬 Rt Hon Winston Peters: They’ve got them now.

But I tell the member that they will be very different, will they not? Those will be wardens, the legislation implies, of the Minister and Department of Conservation, not of local bodies.

If we look back to Part 2, we see that it gives us the detail for that. I say to people like Mr Peters, who are sitting here and saying that I am wrong, that it does not concern just the Minister of Conservation. There will be conversations all over the place. There will be consultation, because this Government believes so fervently in listening to people—and then completely ignoring what they think and say. But this is actually a case of “the Minister and the Department of Confiscation”.

When I put my children in the car this summer and take them to the beach, just like the other hundreds of thousands of families in New Zealand who are used to hopping in the car and taking their children to the beach—[Interruption] Ms Dyson is laughing away over there, but I tell her that my children actually like going to the beach. In fact, in the recent 150-year celebrations earlier this year, when every MP was given a camera to take photos of constituents, and so on, I took my children to the beach at Lyall Bay. They had a wonderful afternoon, and I am pleased I took a photo of them. It was hanging in the portrait gallery before the poor old gallery had to leave the temporary debating chamber. Mr Cullen might well hold his head in his hands, but my children like going to the beach. Hundreds of thousands of families this year will arrive at the beach to find that they can no longer go on to and be on the beach, because there will be wardens patrolling up and down with their identity cards and badges and saying that they are sorry but they are going to limit people’s access, or, worse still, prohibit access. They will say: “If you don’t leave, we’re going to fine you $5,000.” Well, New Zealanders do not appreciate that.

💬 Rt Hon Winston Peters: Where does it say that?

Has that member not read it? Mr Peters has not even read the bill! He does not know about that $5,000 fine. Yet he is happy to subject New Zealanders to those fines and to having their access to beaches limited. He is supporting this bill without even knowing the detail. I suggest to that member that he go away to the lobby, sit down, and carefully read this bill, because it is not too late to withdraw his support. We are not finished. We have the third reading to come, and Mr Peters can change his mind so that the provisions New Zealanders currently enjoy, the hundreds of thousands—[Interruption] That is right. He is thinking of withdrawing. He is signalling to Dr Cullen now that he has changed his mind because he had not read the detail and did not realise what this bill would actually mean for New Zealand families. Well, I say to Mr Peters: “Shame on you for making such a very ill-informed decision.” Mr Jones is now having to rush over to Mr Peters to advise him about what to say next, and to him also I say: “Shame on you.” Hundreds of thousands of New Zealand families will be affected by this legislation and they will not appreciate it.

I have been listening to ACT party members this morning, and I have come to the conclusion that they are a miserable, sad lot. There they are. They put up one of their junior members, who said she would not be able to go to the beach this Christmas. That is an extraordinary claim. Then she started to talk about a group called the Māori wardens, whom she clearly understands nothing about—nothing whatsoever. [Interruption] Yes, she did. They say that the malady of the ignorant is to be ignorant without knowing it. But there they are, knowing full well that there has to be somebody who is policing the law. That is the way the law works. [Interruption] No, no. Some will be Māori and some will not be Māori—OK? Members should just relax.

That party’s members are getting up and making extraordinary claims, not one of which is true. I will recap—

💬 Hon Dr Nick Smith: They must have learnt a few.

Young Nick Smith is at it again. He cannot keep his mouth shut. He has a penchant for saying the most idiotic things and not being able to handle issues when he is under pressure.

💬 Stephen Franks: Tell us about the $5,000.

💬 Opposition Member: Caught out!

No, no. What was said by the member was that, whereas in the past she used to be able to go to the beach, this year she will not be able to.

💬 Mita Ririnui: Rubbish!

It is worse than rubbish; it is disingenuous nonsense, it is deceit, it is misleading people, and it is designed to get a vote that it will not get. That is why that party is going to the floor. It will not be back in 2005—it will be gone.

💬 Hon Richard Prebble: Will you resign if anyone is denied access this summer?

How can anybody be denied access to public property?

💬 Hon Richard Prebble: Why don’t you read the bill, then?

I have the read the bill. In fact, New Zealand First was largely responsible for drafting many parts of it. That is why the country can have enormous confidence that this will be right—because we have been involved in the drafting of the bill.

A previous speaker said that there will be a gravy train. Quite the converse is true. Georgina te Heuheu must know that we deliberately did not allow for the provision for legal aid in this bill. So how can there be a gravy train? These are not the bad old days of National. These are not the bad old days of the Labour Party—ACT in the old days. There is no gravy train at all. But here is the most amazing thing. Which one of the members from ACT raised any concern about the sale of Westhaven Marina by the former National Minister John Banks? Did we hear a murmur or mutter from National? No. Did we hear a murmur or mutter from the ACT party? No. The Westhaven Marina was being offered to the whole world and neither ACT nor National would say a word about that when their old mate John Banks was about to flog it off to foreigners. The Government had to intervene and buy it in order to keep it in New Zealand ownership. The ACT party did not say a word about Westhaven Marina. The National Party would not say a word at all. It should have because it might have saved John Banks’ skin. He might still be the mayor had he not been so foolish. So when we talk about preserving these assets and resources in the name of New Zealanders, parties should have a care for their own record. In the case of the National Party, it ain’t got one—it has an appalling record.

💬 Hon Dr Nick Smith: What about the member’s policy on Auckland airport?

New Zealand First’s policy is not to sell our resources to foreigners. When the Auckland airport was sold, 82 percent of it was sold to New Zealanders. That is way above the 24.9 percent rule. But Nick Smith sold Paraparaumu Airport to one of his mates. That is what he did. Why does he bring out an example that makes him look stupid? One would not use an example that makes one look stupid, unless one’s name is Nick Smith. The Auckland airport went to New Zealanders, without debt to New Zealanders. At 82 percent, it could be said that it was the only privatisation that ever worked, and I was responsible for it.

💬 Hon Dr Nick Smith: In favour of privatisation.

But I did not sell it to foreigners.

Part 6, “Provisions relating to public foreshore and seabed register, recognition agreements, and other matters”, absolutely depicts the point that Heather Roy was making about the uncertainty this bill creates for all New Zealanders. I was very interested to hear Nanaia Mahuta talk about the sort of decision making that is being given back to local communities, and that is no more poignant than in the case of the fate of the west coast harbours Whāingaroa harbour—or Raglan Harbour, as many people know it—Aotea Harbour, and Kāwhia Harbour. What is the fate of those harbours? We just do not know what backroom deals the Labour Government is doing with Tainui. One moment Nanaia Mahuta is leaving for the Māori Party. and the next moment she is back in the fold. There is no doubt that one way or another this Labour Government is conniving to do a deal behind the backs of ordinary New Zealanders.

Only 2 or 3 years ago I wrote to the then Minister of Fisheries, Pete Hodgson, asking how we could sensibly organise an arrangement whereby those with interests in Whāingaroa harbour—the local commercial and amateur fisheries, local Māori, and the local people in that area—could come to an agreement and a sensible plan. He said that all we had to do was write to him and he would organise it. We did that, but there has been stalling year after year, month after month, because, as we know, the Labour Government is conniving behind closed doors with Tainui to do a special deal. There is absolutely no doubt about that.

I see Dr Cullen shaking his head. I ask him this: is this bill making things simpler, less confusing, less complex, or less costly than would have been the case had the Court of Appeal ruling been upheld?

💬 Hon Dr Michael Cullen: Now you’re getting on to that.

Too right I am getting on to that, because National would have produced a certain, simple, and elegant bill. Instead, Labour has come out with one of the most confusing, complex, uncertain, and costly bills this nation has ever seen. That is really the ultimate test of this legislation before us. It engenders uncertainty, cost, and complexity in every aspect and every part of it, including Part 6, which is before us.

What happened this morning, for instance, when the Prime Minister’s electorate office was stoned? I have just had reports back from the Port Waikato electorate office that staff there are concerned, because there have been threats against that office and, I understand, against offices up and down the country. This is the sort of reaction that this legislation—legislation that Dr Cullen and his merry crew from Labour are forcing upon the people of New Zealand—is engendering. There is utter confusion, utter uncertainty, and utter complexity, and we have no idea how high the costs may be.

After all, local government, the Resource Management Act, and regional councils are all brought into this through this most uncertain and complex planning, which we still do not know about in terms of the legislation.

💬 Hon Dr Michael Cullen: Read the bill.

I have read the bill many times and, again, I ask what the costs will be—as my colleague Georgina te Heuheu has asked. How will some of the costs in the High Court be paid for? What is the limit? We hear that New Zealand First has said that there will be no legal aid. Thank goodness for that, because we know that whatever happens, this will be another gravy train.

I move, That the question be now put.

I will follow on from my comments earlier about how I was heartened by the Minister’s amendments to clause 112. I take the gentle rebuke from the National member, Georgina te Heuheu, that that might indicate United Future is now satisfied with it, but that would not be the case. When something is black and one sees it lightening a little, it is possible to be heartened by it. That would explain why, throughout the voting in the Committee stage, members will find that United Future members have been supporting the Minister’s amendments, because they do make improvements to the bill. However, we have been voting against the parts, because they are not yet perfect. There are still things that we are concerned about within each part.

We are pleased to see that there is a little more openness with regard to this negotiation process for agreements to recognise territorial customary rights, but it is not enough. The Green member, Jeannette Fitzsimons, has made a good point, that we would like to see more openness with regard to whom the Government is negotiating with. I think it would be fair for everybody to know. We do not want to see things going on in backroom deals in this country. We will be looking at what results from clause 113, when we see the list finally published of who has received a deal from the Government. We assume that that will be prior to the election next year. We will see who has been given what, in order to take the heat out of this situation.

💬 Stephen Franks: What about 115A?

Yes, I will come to new clause 115A in a moment. I mentioned earlier that at the beginning of this process the Crown really should have had its day in court at the Privy Council, so that the decision of the Court of Appeal could have been tested properly. I think, though, that most New Zealanders could assume that because the Crown did not go there, the legal advice was that it would have not have been able to overturn the Court of Appeal decision, and we probably would have found that the Privy Council upheld the overturning of the Ninety Mile Beach case. Although we do not have that certainty from having seen that case have its day in court, I think that is probably the reality of the situation. That law had been changed, therefore something needed to be done about New Zealanders’ rights to public access across our foreshore and seabed.

With regard to new clause 115A, “Status of existing and future agreements between Crown and claimant groups”, we have heard lots of claims about what that is. I accept the Minister’s explanation yesterday that it is a very simple clarification, and that it does not change anything with regard to what is taking place in treaty negotiations. I think that is what the clause is intended to do. It does raise the issue as to why, when National has made so much about this clause, it did not support my amendment yesterday to entrench clause 12(2)(b), in order to make it more difficult for a future Parliament to transfer the title of the foreshore and seabed to any other entity. It just does not make sense. National has been going on and on about what could happen, and then when it had a chance to do something about it, it completely backed down and did not support it.

I understand the reason for the Government not supporting my amendment. It has made it very clear that it just does not see it as being an issue of constitutional significance. But we never heard that from the National Party. All we heard from it was that nothing should happen that could alienate the foreshore and seabed in the future. New Zealand First’s position is even more confusing. Even this morning Mr Dail Jones came in and said that his party would make sure that alienation could never happen in the future. Yet it did not vote for the entrenching amendment, either. It did not even consider the fact that we could have doubly entrenched it, so that it was not able to be overturned by a simple majority in the future. That is the kind of doublespeak we get used to on this issue.

As a result of all that, New Zealanders have no assurance that, in the future, Parliament could not by a simple majority transfer the title of the public foreshore and seabed either to foreign ownership or to a Māori tribal group who claim for that under the treaty clauses. We continue to get doublespeak from New Zealand First and we continue to get a lack of action from the National Party, when we could have taken some steps in this debate to achieve something.

I move, That the question be now put.

I speak in relation to the amendment to clause 117(3) on Supplementary Order Paper 306 in the name of the Hon Dr Michael Cullen. Although it is not mentioned specifically there, it is a clause inserted by the Deputy Prime Minister to deal, in particular, with the difficulty, or the situation that has arisen, around the Bayswater Marina on the North Shore. I seek the leave of the Committee to have that subclause voted on separately from the whole Supplementary Order Paper.

The CHAIRPERSON (H V Ross Robertson): The member is quite entitled to seek leave for that. Is there any objection to that course of action? There is.

The question was put that the following amendment in the name of Metiria Turei to clause 111 be agreed to:

to insert, after subclause (1), the following new subclauses:

(1A) Upon beginning discussions with a view to an agreement under subsection(1), the Ministers must, as soon as practicable, advise any—

(a) holders of ancestral connection orders; and

(b) holders of customary rights orders; and

(c) holders of territorial customary rights orders; and

(d) iwi; and

(e) hapu—

who may have an interest in the specified area that an agreement is under discussion.

(1B) Before an agreement is entered into under subsection (1), the Ministers must take into account any issues raised by the interested parties specified in subsection (1A).

There is an amendment in the name of the honourable member Larry Baldock to insert new clause 114AA. Briefly, the proposal does not specify a majority by which the entrenchment provision must be carried. That provision will be dealt with as an ordinary amendment.

The question was put that the following amendment in the name of Larry Baldock to insert new clause 114AA be agreed to:

to insert, after clause 114, the following new clause:

114AA Restriction on amendment or repeal of certain provisions

(1) Subject to subsection (3), this section applies to the following provisions (the reserved provisions):

(a) section 12(2)(a), which provides that no part of the public foreshore or seabed may be alienated except by a special Act of Parliament:

(b) this section.

(2) No reserved provision may be repealed or amended unless the proposal for the amendment or repeal—

(a) is passed by a majority of votes proportional to the number of votes cast for the Ayes at the third reading of the Bill that became this Act; or

(b) has been carried by a majority of the valid votes cast at a poll of the electors of the General and Maori electoral districts:

(3) This section does not apply to the repeal of any reserved provision by a consolidating Act in which that provision is re-enacted without amendment and this section is re-enacted without amendment so as to apply to that provision as re-enacted.

We now move to clause 113, with an amendment in the name of the honourable member Metiria Turei to subclause (2)(b)(iii) set out on Supplementary Order Paper 302 in the name of the Hon Dr Michael Cullen. I have just been instructed that that amendment is out of order as it is inconsistent with the previous decision on the amendment.

The question was put that the amendments in the name of the Hon Dr Michael Cullen set out on Supplementary Order Paper 304 to the amendments to clause 107 set out on Supplementary Order Paper 302 in his name be agreed to.