Foreshore and Seabed Bill

I move, That the Foreshore and Seabed Bill be now read a second time. I would never be so cruel to Mr Brownlee as to insist that he speak at length on this bill—10 minutes will no doubt be an extension of time!

To repeat a point I made in the debate on the first reading, this bill gives effect to the four principles we set out at the start: access, regulation, protection, and certainty. The bill provides a clear unified system for recognising and protecting rights in the foreshore and seabed. It creates a fair and reasonable framework for working through individual cases, in the context of a settled concept of Crown ownership on behalf of all New Zealanders.

I said in my first reading speech that this bill would not satisfy everyone. I doubted that that would be possible, given the contentious and complex nature of the issues. But I emphasised that the bill did go a long way to addressing the concerns that have been raised. I expressed the hope that people would take time to examine and discuss the bill, and suggest improvements. The select committee report shows that people certainly exercised their democratic rights, with nearly 4,000 written submissions and over 200 oral presentations. It is disappointing that the committee could not agree on amendments to the bill, many of which are simply of a technical nature, that would have assisted members, and we shall hear a great deal of huffing and puffing about that later, ignoring the fact that the parties responsible are those that actually opposed the bill, not those that supported the bill. But that has not detracted from the integrity of the legislative process, as Mr Russell Fairbrother, chair of the Fisheries and Other Sea-related Legislation Committee, pointed out.

I turn to the select committee’s report. I would like first of all to express my gratitude to Government members of the committee for their contribution to the work of the committee and for their report. Their advocacy of a reserve status for areas of the foreshore and seabed, expressed both in the report and directly, has been influential and is reflected in the Government’s proposals for changes to the bill. I shall say more on those later.

I am not able to compliment National members of the committee on their report. They restate their earlier position, that Parliament simply needs to legislate to remove the Māori Land Court jurisdiction that was the subject of the Ngāti Apa judgment. The bill does a great deal more than that, because it has to. Recognising and protecting rights in the foreshore and seabed is a complex matter, not one amenable to simple solutions, yet National says it supports recognising and protecting those customary rights.

National tells us that it does not accept the claim that non-Māori New Zealanders can never have the same feeling, love, and care for, or connection with, the coastline of this country as someone who is Māori. The Government and New Zealand First reject that, too. If National members think that that is what the bill does, they have simply not read it through. What they have to consider is whether particular Māori interests in the foreshore and seabed can be acknowledged, consistent with the general interests of all New Zealanders, and that is what the bill has set out to do.

Mr Dail Jones made a thoughtful and constructive contribution to the report, repeating the position that the bill does ensure the ownership of the public foreshore and seabed by the Crown, and the protection of customary rights. That dialogue is continued, and the Supplementary Order Paper represents the outcome of that dialogue.

ACT simply said we were precipitate, inconsistent, and wrong, but never said at all clearly what should have been done. [Interruption] Apparently the ACT position was that we should have allowed the law to run as it was, and foreshore and seabed should have passed into private hands. We know ACT favours privatisation but we did not realise it actually went as far as that, in this respect.

The Green members’ report is extensive and considered, but does not provide a basis for reaching an accommodation with the Government on the issues in the bill, because it adopts this notion that in the meantime the Crown has some kind of trusteeship before ownership is transferred to Māori under the current jurisdiction.

The United Future member made many constructive suggestions, and I think probably United Future’s disagreements with the bill are less substantive than those of some other parties in the House. Theirs is more about process, rather than the substance of the bill.

The Supplementary Order Paper incorporates a very large number of the amendments suggested in the departmental report and could have been done at the select committee stage. Other amendments reflect discussions with Government members and with New Zealand First. They cover the following. First of all, there is the objective of the bill. The objective is to preserve the public foreshore and seabed in perpetuity as the common heritage of all New Zealanders in a way that enables the protection by the Crown of the public foreshore and seabed on behalf of all the people of New Zealand, including the protection of the association of whānau, hapū, and iwi with areas of the public foreshore and seabed. That seemed to be consistent with the National Party’s position.

Secondly, right of access: the powers in the bill are to restrict access only to protect activities that are the subject of a customary rights order, and relate to sites of special significance. Thirdly, statutory criteria, for the new jurisdiction of the High Court to consider claims of territorial customary rights, that is, continuity, contiguity, and exclusive use and occupation: so far the National Party has shown no sign of recognising that the issue of the inherent jurisdiction of the High Court is on the table right now, and unless the law is changed there is nothing to prevent the High Court from issuing customary title to foreshore and seabed. The National Party seems to pretend that somehow that can be completely ignored in the legislation. Such folly on its part I think is extraordinary.

The tests that are applied are arguably more liberal than in the common law of other jurisdictions. They certainly reflect the kind of common law test the courts should have applied, should any application be made under customary title procedures. The redress for territorial customary rights covers a couple of possibilities. The first is that a successful applicant group, where there is redress to be available, can apply for the establishment of a foreshore and seabed reserve. That is held for the common use and benefit for the people of New Zealand, but acknowledges the guardianship status of the applicant group. The board operates within the statutory framework of the Resource Management Act. Its task will include the preparation of a management plan for the reserve, which councils will recognise and provide for in preparing or changing regional policy statements or plans.

Regional councils will be required to review relevant regional policies and plans within 6 months of a management plan for the reserve being lodged with them. This is so unscary that it is remarkably similar to provisions in the Resource Management Act, which the National Government itself passed in 1991. But we will hear vast huffing and puffing for many hours about the supposed effects of that, in relation to special privileges.

The Supplementary Order Paper removes ancestral connection orders. They were widely criticised on the grounds of cost and ineffectiveness, and will not proceed. The National Party called for the removal of ancestral connection orders, and it will be interesting to see what it says on that part of the bill in the Supplementary Order Paper.

The new customary rights orders clarify that these must be based on actual activities, and cannot be issued simply in response to cultural or spiritual associations, and cannot be described as a right to the exclusive use of an area unless it can be justified by evidence of exclusive use.

Changes in existing infrastructure clarify that the maintenance of, and new consents for, existing infrastructure will not be subject to the new restrictions on consent applications that would have a significant adverse effect on a recognised customary activity, and provided that the effects are temporary or the same as those that existed before the application was made.

The vesting of reclaimed land: limited exemptions will apply if a resource consent for a reclamation has been granted before the enactment of this bill, or if there is specific statute or legal agreement, and new provisions will give port companies an automatic right of renewal on leases. They will reclaim the land necessary for port infrastructure, while other holders of a lease over reclaimed land that is due to expire will have a right to have an application for a new lease considered. Existing rights are protected, and the situation going forward provides adequate protection for reclamations.

These are significant changes to aspects of the bill. I would have preferred that they be considered on their merits by the select committee and reported on in full to the House. That would have assisted us in taking this bill through its remaining stages. But the obstructiveness of Opposition parties is no reason to prevent the bill from being taken through its remaining stages. That would have assisted in terms of the later debate. The changes strengthen, clarify, and take account of practical concerns. They do not affect the bill’s basic purpose and direction, which centres on those four principles.

Lastly, let me dwell upon a particular point. Ever since the Court of Appeal decision, there has been a heroic overstatement of the implications of that decision on the part of many people throughout the country. Many Māori have claimed that there would be automatic ownership of the foreshore and seabed, or that already there was effective legal and beneficial ownership of the foreshore and seabed, and therefore this legislation takes that away. That is nonsense. Legal ownership is vested in the Crown under existing legislation, and existing legislation such as the Resource Management Act is incomprehensible without that assertion of ownership, because under it the Crown contracts further ownership on reclamations. But on the other hand, people got the notion that somehow or other the legislation was going to hand everything over to the full control and the full benefit of Māori. [Interruption] Yes, says Mr Richard Worth. Neither position represents the reality at all, except of course the National Party is trying to argue both of them simultaneously, which only it is ever capable of doing on these kinds of issues.

The bill represents a delicate balance. It represents a balance that reflects the actual common law rights position, codified into statute—no more and no less than that. We shall hear a great deal more over the next 20 hours or so but it will be a great deal of noise signifying very little from the National and ACT parties.

💬 Mr SPEAKER: I have organised the list of the parties I will call in order. It is on the Table, and people can come and consult if they wish. I have already consulted some of the parties.

A Government that is confident about a bill as important as this would not spend so much of its introductory speech-time pre-empting what the Opposition might say. The Government would not so quickly put itself into defence mode unless it knew that the bill was incredibly divisive and was going to be a problem for it.

Now, some 18 months after the Court of Appeal decision on Ngāti Apa, very little has changed. Government members went around the countryside consulting, so-called, with Māori and holding hui here, there, and everywhere. Then, just before Christmas last year, the Government introduced the Foreshore and Seabed Bill into the House—an appalling bill that now lies in tatters on the Table of the House. The Government has come up with a very substantial Supplementary Order Paper, which makes the bill a very different bill. This bill was not put together by the Government; it was put together by the Government’s white knight in this case—namely, Winston Peters and the New Zealand First Party.

I will explain what is so significant about this Supplementary Order Paper. The Court of Appeal decision on Ngāti Apa upheld the premise that the Māori Land Court could issue title to foreshore and seabed to some Māori applicants. In terms of the bill now before us, those same Māori applicants can go to the High Court to seek territorial customary rights, which lead to co-management or a cheque for compensation. It is clear that Dr Cullen has not read his own press release, so for his benefit I will quote from it: “Where a territorial customary rights finding is made, and the group does not seek the establishment of a reserve”—that is, the co-management bit—“the High Court shall refer the finding to Ministers to discuss other redress options.” Everyone knows “other redress” means a cheque. John Tamihere certainly knows that “other redress” means a cheque. So there is very little change from exactly what was the case 18 months ago.

The select committee process was a disgrace. However, in saying that, I do want to pay tribute to the chairman, Russell Fairbrother. He is a very able fellow, and he must wonder what the heck he is doing in Parliament, after his previous illustrious career. He was under an incredibly hard drive, all the time, from the Prime Minister and Michael Cullen. He knew that he could not listen to people, that he could not allow the committee to listen to people, and that he could not take on board their views, because the Government was always going to do what suited it best. Sadly, because the numbers fell over, the Government had to go to Dail Jones to write the Supplementary Order Paper, and to Winston Peters to help them out, in order to get the legislation through. Members of the select committee were fascinated with the goodwill—by and large—that was exhibited by many of the Māori submitters who felt aggrieved and were very uncertain. It was interesting to note that the uncertainty felt by Māori submitters was paralleled just as strongly in the non-Māori community. This bill does nothing to allay those fears—on the part of either party.

Dr Cullen suggested that somehow there was something wrong with National’s suggestion that the Government should have considered Te Ture Whenua Maori Act when looking to sort this problem out. That legislation came before the House only 11 years ago, so that is in living memory of many members here. For the benefit of those of us who were not in Parliament then, we went back through all the submissions received on that bill and we went back through all the speeches in Hansard. We found that not one submitter, MP, or Māori MP at the time, mentioned that the foreshore or the seabed was land. Not one! It was never ever suggested, despite what Government members might think, that the foreshore or the seabed was land. That was the view of 11 years ago. What has happened within the Māori community that makes them suddenly decide that the foreshore or seabed is land? The Government is in this pickle because Helen Clark overreacted to the appeal court decision. She was caught on the hop when she was asked what the Government was going to do about it. She immediately said that the Government would legislate to fix it. So about 18 months later we have this bill before the House, but it will do nothing to change those circumstances—not a thing.

Māori will be able to make a claim to the High Court to get a declaration of customary rights over an area, and a reserve will be created, which, apparently, everybody can walk over, everybody can stomp up and down on, and everybody can use a boat on, but there will be a management committee that somehow will administer that reserve. Dr Cullen knows, and everybody in the Labour Party knows, that when one sets up committees—and Labour is good at that—then inevitably there will be rules, there will be charges, and there will be restrictions on use. No matter what this bill says, that is what they will do. The bill contains plenty of clauses—[Interruption] and the member for Taupo ought to read them—that will allow the access issue to be parked up. How can anybody in this country be confident with the bold claim made by Dr Cullen today that this bill has no more in it to fear than the Resource Management Act? Well, I can tell members opposite that their votes, their seats, are being undone on a daily basis because of their insistence that the Resource Management Act is all fine and dandy and nothing needs to be done about it.

Dr Cullen challenged National to give a position on the Government’s decision to take the ancestral connection provision out of the bill. Well, the Government has not done that. It will argue that it has gone—because those words are not there—but if anyone looks at the purpose of the bill, and at clause 2A, “Object”, it is patently clear that ancestral connection is now very much embedded in the bill. So if one is a Māori, one has an opportunity to claim a special connection to specific parts of the coastline.

💬 Rt Hon Winston Peters: No. It’s gone.

Mr Winston Peters sits there and says it is gone. I ask him to tell us what it means where it states that a Māori group can go to the High Court to have a customary rights finding in their favour.

💬 Rt Hon Winston Peters: It doesn’t say that.

That is exactly what it says. If that is somehow not something special that those of us who are non-Māori cannot claim, then what is it? If it is not saying that those groups have a preference in our society, what is it saying?

💬 John Tamihere: Ask Georgina.

I wish John Tamihere would shut his mouth, because when it comes to dishing out cheques, no one in this House knows more than he does. That is what this bill does. This bill is designed to placate Māori with a cheque and convince other New Zealanders that everything is OK when it is not.

“A little learning is a dang’rous thing; drink deep or touch not the Pierian Spring”. That member knows nothing about this bill, and he demonstrated that with everything he said tonight, which would be his leader’s position and the position of his party. In a democracy like ours, an issue arises now and again that requires us to put aside our differences and act in the best interests of the nation.

💬 Gerry Brownlee: Refute everything I’ve said.

I can refute, rebut, and debunk everything the member has said. June last year was such an occasion, when the Court of Appeal released its ruling on the Ngāti Apa case, regarding the foreshore and seabed. It came from left field and caught all who were involved by surprise. There was a judicial inference that the understandings we always had regarding the ownership of the foreshore and seabed needed greater clarity. The issue seemed straightforward enough. We had all assumed that the Crown owned the foreshore and seabed. But with this in judicial doubt we were required to clarify the issue; and that is what New Zealand First has done from day one. What we have secured is the following: Crown ownership in perpetuity for all New Zealanders; guaranteed public access; customary rights for all New Zealanders, regardless of race; one law for all in access to the courts; and certainty, particularly in respect of business activities linked to the seabed and foreshore, like port companies.

The issue required a non-partisan approach to clarify what we had assumed to be law. It could have been resolved quickly. Instead, many parties in this House chose to play petty politics. They saw it as a chance to promote themselves and to promote different agendas, even the legal nonsense of a public domain. If these people thought that the Court of Appeal had made a strange decision in respect of the Ngāti Apa case, just imagine what sort of interpretation a court would have come up with in respect of an alien, inappropriate doctrine such as public domain. This had to be stopped, and it was stopped.

We also had some Māori who became obsessed with an aspect of the court’s rulings related to the process of securing customary rights. Some, including lawyers who knew better, and lawyers should know better, helped create the hoax that some people owned the foreshore and seabed because of their ancestry. There is no Māori in this country with a closer connection to the sea than, for example, myself, or Dover Samuels. We, and our ancestors, have lived smack on the sea for thousands of years. No Māori can contest that, so let us put a few facts out there. We must remember that many of those lawyers have been on the treaty gravy train for years. They have been cynical and manipulative, and they saw a chance to add to the grievance industry themselves—all division, all confusion, all disharmony.

Māori and other New Zealanders deserve better and they have got better. They deserve the truth and they have got it. For a time we were drowned by a media frenzy and all sorts of myths and shibboleths, but the truth is now emerging. We have stayed the course on this matter, and we have seen off the mischief-makers. The Court of Appeal never did say that Māori owned the seabed and foreshore. It simply said there was a process of procuring customary rights through the Māori Land Court, and then it doubted that any such process would ever succeed. Those are the facts—an abbreviated version—and the rest is bunkum. The court never said that Māori owned the seabed and foreshore.

💬 Hon Richard Prebble: You’ve got the wrong notes.

If my party was going through the floor, I would keep quiet. In fact, I would retire. Oh, I am sorry; the member is retiring. This issue needs clarity and there will be clarity. I have a warning for those in the Māori Party who believe that their hoax over the seabed and foreshore will sustain them into the next campaign. There will be no mass dissatisfaction. Māori, like all New Zealanders, will see they have a stake in the ownership of the foreshore and seabed through the Crown, and, more important, for the first time their customary rights are now secure. That is the truth. That is the reality. I have to say they have New Zealand First to thank for that. The next hīkoi will be to the ballot box, and we will see who is right and who is wrong.

But it was not just Māori who were engaged in spreading confusion. We had from the National Party the most confused and the most blatant politicking of them all. Sadly, that is one more sign of its weak and confused leadership. Where is the leader—the great debater—on this issue tonight? Where is the man who would bore the Rotary club silly on the issue? Where are the words of wisdom from this new clarion-call leader who calls himself the new voice? There is not a mutter, not a murmur, not a sound, not a syllable—gone. That leadership lives and thrives in a perverse time warp. They believe there is no legitimate place for Māori, except as subservient workers for their colonial masters. The tea planter strikes again!

Tonight in the name of Māoridom, Gerry Brownlee rises to put a defence. I feel sorry for Māori if the new white man’s burden becomes a cloak laid on the shoulders of the National Party. National members could have acted in the national interest. They could have done what their name suggests, but they have long since stopped believing in anything to do with the nation. They are about short-term, opportunist opportunity. In that respect, they are unparalleled in this Parliament. Even the ACT party cannot beat them at doing that. The ACT party does not know whether it is Arthur or Martha. They are opposed to this legislation, but they are going to join the constitutional conference. I say to them: “Would you guys make up your minds!”.

The whole country is looking for an alternative Government. We know there is leadership here that is an alternative. We know there is a party that is an alternative. There are only 13 of us. We need more who are prepared to get up and put the issues of the day, but not like the National Party and the ACT party. They are hopelessly divided with no idea where they are going. They have no principles and no policy; just objection. Why could the National Party not have done its duty? They said the foreshore and seabed must be in Crown ownership. The bill does all of that. But they will not support it. The National Party stated in its report that customary rights must be protected. The bill does that, but they will not support it. Why not? “Beaches for all” was what Don Brash proclaimed. Well, they will be—but National will not support it. But at Christmas time this year everybody will know who secured the beaches for all of us in New Zealand. They will remember who did it. The National Party could have been part of the solution but instead it decided to become part of the problem.

Let me just say this: although we do not see eye to eye with the Government on many, many things, when there is a threat to our common heritage and our birthright, we have to act together, just like we do in times of war. Nobody should read any more than that into it. But the issue threatened to shake the foundations of this nation, and New Zealand First is proud to have fixed it. We said we would fix it, and we have—unlike the rest on my right and my left.

There is an old Māori saying, which I will put in English, which epitomises our position: “Not like the seagull tossing and turning its head at every wave, but like a rock, steadfast against the surging sea”.

Tihei mauri ora! Ki a koutou katoa e tae ake anō i te rongo, e Paora, koutou katoa, e mihi kau ana, tēnā koutou. E ngā mātāwaka ā-iwi, ā-whānau, ā-hapū hoki tēnā koutou. Kaua koutou e māharahara, e āwangawanga rānei mō ō koutou mana, nā rangatiratanga hoki nō te mea, kāre ēnei e murua i raro i te Pire o te Takutai Moana. Ka mau tonu ēnei mana mō ake tonu. Mā tēnei pire inā ka whakamanatia e tiaki ō tātau mana tipuna ki ngā takutai moana. Ahakoa noa tēnei pire kei te wātea te huarahi ki te kōrero tahi mai te Karauna. Kia ora tātou katoa.

[Behold the breath of life! To all of you, Paora, who have arrived to listen, your presence is acknowledged. Greetings to you all. Greetings as well to the ethnic groups, tribes, families, and subtribes. Do not be anxious or uneasy about your authority or independence as well, because these will not be confiscated under the Foreshore and Seabed Bill but will be retained forever. This bill, should it be passed into law, will protect our ancestral rights to the foreshore. Despite this bill, the pathway is clear to dialogue alongside of the Crown. Greetings to us all.]

Greetings to the many tribal waka, inclusive of whānau and hapū, and to those who have turned up here tonight. I say to them not to be fearful or concerned about the protection of their mana and sovereignty, because they will not be affected under the provisions of the Foreshore and Seabed Bill. Such rights will endure in perpetuity. This bill, when enacted, will protect our ancestral associations and mana to the foreshore and seabed. Under this bill, the way is still available for iwi to negotiate with the Crown. That is the norm.

💬 Gerry Brownlee: Oh!

Greetings to Mr Brownlee! I am pleased to speak in support of the second reading of the Foreshore and Seabed Bill. It has been a long journey getting here. We had to sit in front of the hīkoi, and we had to go around the marae when everybody else went away. We went there.

The bill is a product of extensive discussion and consideration. It has generated considerable comment from Māori and non-Māori, sector groups, local government, and recreational groups.

💬 Rodney Hide: Who wrote this?

Before I go any further, it is important for that person who is yelling to understand—and I stress, yet again, the need for this House and for all New Zealanders to understand—from the outset that there is a tangata whenua in this country, and that is Māori. That factor is most relevant to this bill, and it has been at the forefront of the Government’s Māori caucus’s journey in trying to defend that and ensure that we get there. In line with the Government’s view, the perspective in this bill is about protecting what was tuku-ed to us. It is about passing on those inherited rights, privileges, and interests that were passed on to us. It is quite clearly about kaitiakitanga and guardianship o Tangaroa, and not about the pervasive, perverted speechmaking sessions such as we heard in Ōrewa.

This Government has not swayed or moved away from recognising the customary rights of the people who are tangata whenua in this country. We are a Government that is prepared to do the hard work. We confront the issues in this bill. As Māori members in the Government, we need to understand some things in the sense of what is relevant to Māori, and in the sense of being a mokopuna. As a mokopuna I went around the rocks with my nan to ruku pūpū—to get kai moana—two or three times a month, every month, through most of my childhood. I appreciate what the takutai moana has in store for us. It is clearly something that has been passed on to us by our tupuna, and we want it to last.

The way things were heading, our kai moana would have lasted but a few years. Our fridge and our covenant are being ravaged, pillaged, and sold on the black market even as I speak. There are people in this country who want to forget about the tangata whenua; who want to leave things as they are. The great leader from New Zealand First alluded to that—to those on the gravy train and to the great Government contracts with the elite, the privileged, and the cunning. Most of the members behind that were from that Opposition party over there. We do not want that carry-on.

In 1992 the customary right was put in a regulated framework. That is where the fishing right went. It was done without consultation. It was done in the dark. It was done in Wellington. It was done by that person and that Opposition. At least we have brought the issue out into the public arena. We stand by what we have done.

The Government has consulted widely on this bill. I am pleased that by the end of the week, traditional Māori rights and interests will be protected, guaranteed, and enhanced in perpetuity with the passing of this legislation.

💬 Rodney Hide: Who says that?

I say that as a Māori and as a member of the tangata whenua of this great country. I am confident that this bill will preserve the rights of all New Zealanders, Māori and non-Māori, over the foreshore and seabed. The foreshore is that strip of land between the high-water mark and the low-water mark that people boogie board on, that Pākehā go to to make themselves look darker like me, that people walk the dog on, and that we get kai from. We want to look after that and respect it. When people go to the beach at Christmas—like my former party member friend over there—they will appreciate the serenity and the right that everybody has to that area.

When this issue first arose, the Government developed principles to guide the development of this bill: access, regulation, protection, and certainty. This bill must proceed if we are to have a lasting and certain solution to this issue. The bill will be a lasting solution, because it lives up to those four principles. It protects what all New Zealanders want to see protected: public rights of access and navigation on the one hand, and Māori customary rights on the other. Māori have nothing to fear with the passing of this legislation. Customary rights and the interests of whānau, hapū, and iwi are acknowledged and protected. There are those who say we should leave things as they are. I disagree.

There are those who are muscling up to create fee simple, which, quite simply, is about purchase and sale. If one buys someone’s house or car and sells it, kei te pai—that is OK. But some are selling tuku-ed whenua. At the moment there are Māori who are selling whenua that was tuku-ed to them, that they inherited, that they never paid a cent for, and that was a lifetime interest gifted to them due to their genealogical whakapapa connection. Other races are encouraging them to pillage the kai moana and sell it in Auckland in the dark. I want to make sure that my mokopuna—and Mr Brownlee’s, if he has any—can go to the beach and get kai when they grow up; that they can go there and get suntanned if they want. If the status quo were to remain, they would be denied all those simple niceties that New Zealand people want to participate in.

This bill will vest the full and legal benefits of the public to the seabed and foreshore in the Crown, and will provide for the recognition and protection of ongoing customary rights. It will also prevent the creation of new private foreshore and seabed titles that could be sold off, which that person on the Opposition benches helped to organise.

This bill makes the public foreshore and seabed inalienable, except by special Act of Parliament. It gives protection to Māori as much as to everyone else. I thank the members of the Fisheries and Other Sea-related Legislation Committee and Russell Fairbrother. I especially thank our Māori caucus members on that committee and the other members for the effort they put in and for the heavy flak they had to take. It is regrettable that the select committee was not able to reach agreement on the bill—that is Parliament; that is MMP—despite the effort it made to consider a vast number of written submissions. Even though the committee was not able to reach agreement, the Government has heard what submitters were saying. It was not realistic to do away with the bill altogether, as some suggested, but amongst the raruraru—the concern we heard from a few—many of the submitters made useful, constructive suggestions on how to improve the bill. That is what this Supplementary Order Paper is about.

I will not comment on the amendments because the bell has gone, but I will say a couple of other things. If Māori groups get a territorial customary right finding, this amendment will give whānau, hapū, and iwi the powers to manage the foreshore. The foreshore and seabed reserves have been designed especially for this bill. It is not too different from marae—the hundreds and thousands of them around this country are reserved. My learned pakeke Dover Samuels alluded to that. On those reserves, our connection to those marae and those meeting houses is through our genealogical and hapū connection. That is a reserve. We can do all those things. We do not pay rates, but we certainly cannot build an ablution block without the consent of the local authority. We certainly cannot do all of those things. The reserves are not a new thing in that sense. It is well practised in Māori. We manage them well as Māori. We are respected generally when people go to them.

There are different tribal cultures and tikanga, even with the foreshore. There are no generic models, generic aspirations, or generic rights that will put everything right. Māori, like the National Party at times, put things asunder amongst themselves. Māori are familiar with marae reserves. Like those guardians of the foreshore, we will continue. We want this to be flexible. I want to remind Opposition members about retention. Quite simply, that is what this bill is about. Most of the Māori land that is still intact now was put into a regulated framework by Tā Apirana Ngata, and it has stood the test of time. Whether it has been used or has been lying idle, it has stood the test of time, and we Māori still have it. It is still in our possession.

That is what this bill is about. It is about looking forward with our young population, which does not have all the tikanga skills that people have said. Much of the land that was left out of the regulated framework was pillaged by people who came as visitors to this country.

It was ransacked. We were haemorrhaged by it. It was disgraceful. It was not only the visitors who sold our land.

💬 Hon Ken Shirley: Oh, so it wasn’t only them?

No, it was not only them. Our own people have sold on in recent times whenua that was tuku-ed to them—whenua that was gifted to them through their ancestral connection and their genealogical ties. It was given to them by our ancestors. As I said, we have to ensure that we have documents and policies like this that will protect all New Zealanders, especially the tangata whenua’s right in this country. I have no hesitation in supporting the second reading of the Foreshore and Seabed Bill. I want to thank New Zealand First, especially Winston Peters—like me, a seafaring person—for coming along at this late stage and helping us to get on with it.

Already this debate has been utterly sickening, and I stand with the thousands of other New Zealanders who, over the next few days, will likewise be sickened by listening to Māori justify the taking of Māori land. So much has been said in the last 18 months about the Government’s abject failure to manage the issue of the foreshore and seabed properly; from Helen Clark’s ridiculous over-reaction after the Ngāti Apa decision, to the arrogant disregard of Michael Cullen and Trevor Mallard for Māori analysis and experience during the consultation hui, and to the creation of this legislation, which extinguishes customary rights, confiscates land, and is nothing if not entirely deceptive.

This litany of failures has cost Labour one of its best members of Parliament and a significant chunk of its traditional Māori and Pākehā support, and it has set back Māori and Pākehā relationships by more than 30 years. What a sick achievement for this Government! At one point it looked as if the Government seriously wanted to give New Zealanders the opportunity to be heard on the issue through the select committee process, but even that turned into one of this Parliament’s greatest disgraces. Labour and New Zealand First refused to give enough time for the select committee to consider the bill properly, and the committee could not hear the thousands of submitters who wanted to be heard. Nor could committee members properly consider the major issues that arose from those submissions; nor in the end did they have even enough time to discuss and recommend any changes to the bill. Of course, the submitters themselves were treated with an extraordinary level of contempt and abuse by some committee members.

The community that we are here to serve is rightly outraged. Submitters were not even permitted the basic dignity of being written to by the committee and thanked for their efforts to make submissions. At least the Green Party wrote to those who sought an oral hearing, to thank them for their effort and contribution to the democratic process. Despite the abuse suffered by those submitters who came to the committee, many presented their views with compassion and respect. Some certainly expressed frustration and anger. Many brought stories about their ongoing commitment to the coast and their continued efforts to protect the coast from unsustainable development and the damage made by 4-wheel drive vehicles and other destructive human activities. They told of their efforts to protect the planting of indigenous species that are under threat, their efforts to protect the nesting sites of rare and threatened birds and, of course, their efforts to protect their own wāhi tapu. Those stories came from the people, Māori and Pākehā, who live on the coast and are the most affected by any changes to the legal status of the coast itself.

I have described this bill as deceptive, and I say that because for all the rhetoric about the protection of public access, the bill turns the foreshore and seabed into a saleable commodity and repeals one of the few requirements for public access. This bill hides a myriad of hidden agendas. Some are just pure opportunism—for example, the taking of Te Whanga Lagoon on the Chatham Islands. The ownership of Te Whanga Lagoon is the subject of current litigation—litigation that has been very difficult for everyone involved—but the courts are the legitimate forum for that dispute. This Government is using the Foreshore and Seabed Bill to take ownership of the lagoon for itself, even though the lagoon is not within the coastal marine area. It wants to do that just because it can. There is no justification. It is a simple theft.

One serious deception is the removal of mandatory marginal strips under the Conservation Act. That clause is hidden in the bill and kept quiet by the Government so that no one will notice. Currently, the law states that when reclaimed land is vested as fee simple—for example, in a marina—a marginal strip must be set aside for public use and access. That marginal strip can be exchanged for similar coastal-access land, but it remains one of the few legal provisions for guaranteed public access over private coastal foreshore land. This Government—Labour along with the complicit New Zealand First—will repeal that law with this bill. They will replace the mandatory public access provisions with an optional one. For the residents of the North Shore in Auckland who have been fighting through the North Shore City Council to have Bayswater Marina provide a marginal strip, this bill is a direct kick in the guts, denying them the public access over reclaimed land they that are legally entitled to and have been fighting for for so long. In a letter, the Mayor of North Shore City, George Wood, pleaded with the Minister of Conservation to remove that clause from the bill, but that call has fallen on deaf ears.

This bill will strip away existing public access provisions, and, of course, any reclaimed land that is in the process of becoming private freehold title is allowed to proceed under the bill. Applications for private fee simple title and reclaimed foreshore land will proceed, creating a number of further freehold titles in the foreshore and seabed. That is exactly what New Zealanders, Māori and Pākehā, have been saying they do not want. Not only does this bill take away guaranteed public access along reclaimed land and create further freehold titles in the foreshore but it also creates saleable customary rights. For Māori that is the ultimate deception, and it cuts directly to the bone. For 18 months now, Māori have said that they do not want freehold title; they want collective customary title that recognises their full kaitiakitanga rights and responsibilities.

Māori acknowledge that there is a public interest in the beaches, and they want to find a way to share them that does not undermine their tikanga. They want what the law says they are entitled to—just as any Pākehā New Zealander would want. But the Government has been spreading the vicious untruth that Māori cannot be trusted. In fact, it is the Government that cannot be trusted, along with New Zealand First, as evidenced in the sneaky provisions of the bill and the 67 pages of ill-considered amendments that the public will not have the chance to see before the law is passed. This bill provides for the privatisation of the foreshore, and it sets up an easy process for customary rights orders to be sold off and extinguished forever. The foreshore becomes a commodity, and Māori lose forever their customary rights that come to them as taonga tuku iho.

Māori pose no threat to the foreshore. The Government, however, hides its real agenda of commodification. With the easy cancellation of customary rights orders, along with the repeal of the marginal strip provisions and the existing freehold reclamation applications being allowed to proceed, Labour and New Zealand First are creating saleable, tradable fee simple titles in the foreshore and seabed—the exact opposite of everything they say they are trying to do. So much for New Zealand First’s supposed campaign for public ownership! In supporting this bill, that party supports the trade in New Zealand’s coast.

The Greens support access to the courts for Māori, for a declaration of customary land status and the development of collaborative management in the coastal marine area. We believe that there should be no saleable, private, and exclusive title granted over the foreshore and seabed to anyone—to New Zealanders in general, to tangata whenua, or to overseas interests. Te Ture Whenua Maori Act must be amended so that Māori customary foreshore and seabed land has to remain in Māori ownership. Collective customary title to the foreshore and seabed should be upheld and not extinguished by legislation, and public access should be protected, except for those areas where environmental protection or historical, cultural, and spiritual significance make that inappropriate.

We have also suggested that the Government consider the Brookfield model as a potentially politically unifying alternative, but practical, effective, and just solutions will not satisfy this Government. The rights of Māori and of all the citizens of this country are being trampled. The cost of that will be borne for generations to come. The Greens have consistently proposed solutions that meet the needs of all New Zealanders and do not make our community complicit in a 19th century confiscation.

The ACT party is certainly opposing this legislation. The Government has been lurching from panic to panic from the moment the Court of Appeal brought down its decision last June. The Government has been precipitous, inconsistent, and wrong at every turn of this legislation, and the way in which Winston Peters and his party have at this late stage allowed the legislation to proceed through Parliament, is an indictment on them.

It is bad legislation, and I believe that the future generations who will have to live with it will regret its passage. It fails to protect property rights, and it is a gross breach of due process, which is an aspect of this legislation ACT is particularly upset about.

We were promised that the bill was based on the principles of access, regulation, protection and certainty. It certainly will not deliver certainty. It will deliver incredible uncertainty, by the very fact that it amends the Resource Management Act—the tool by which this legislation is to be implemented. Who thinks we have certainty under the Resource Management Act? What we will do here is extend the principle of the Resource Management Act—codified tikanga—over the whole management of our foreshore and seabed. That is a recipe for ongoing uncertainty, not certainty.

The select committee process was an absolute and utter disgrace. The committee had 4,000 submissions from concerned New Zealanders, most of whom wanted to be heard. The Government screened them out, and we were able to hear from only 200. Only 5 percent of the submitters were heard by the select committee.

The Government did not have the numbers on the select committee. In fact, Government members themselves opposed this legislation. Do members remember John Tamihere’s public comments the week before the report back? He was going to bring down all sorts of changes, because he was opposed to it. That is why the select committee was unable to report back fully.

To carry on the insult of ramming bad legislation through Parliament, only today did the Government show Parliament the whites of its eyes. We saw the detail of this legislation only about 5.30 this evening, immediately prior to this debate commencing. That is a disgrace.

The Ngāti Apa decision of 23 June last year did not actually say very much at all. All it said was that pursuant to the Te Ture Whenua Maori Act, there might in some cases be rare and remote instances—and it even stressed that they would be rare and remote—by which some iwi could go to court and establish that they did indeed have title based on customary rights. The Government totally overreacted to that situation.

People blame the courts and say what a bad decision that was, but the more I read the judges’ decision, the more I do not blame them. I blame the legislators and the Government of the day—the previous National Party Government—for passing the Te Ture Whenua Maori Act in 1993, because it was vague, it was uncertain, and it extended by default the jurisdiction of the Māori Land Court. As Mr Brownlee has already pointed out, not one submitter in the lengthy legislative process in 1993 even referred to the foreshore and seabed.

That aside, the previous Government let through bad drafting that made it quite specific that the Māori Land Court had extended jurisdiction, and that it could indeed issue title over the foreshore and seabed. Prior to 1993, no such right existed and it was not an issue, so that was the genesis of the problem.

The ACT party asks why we do not go directly to the problem, directly to the mischief—if, indeed, it is a mischief—and address that issue, rather than create a whole new regime of complicated mechanisms codifying tikanga, amending the Resource Management Act, and introducing all manner of new concepts to manage the foreshore and seabed that are untried, unproven, and untested, and that will certainly create mass uncertainty.

The Government is saying that it will codify Māori tikanga. Let us remind ourselves that every iwi in the country, every iwi that came to the select committee, was horrified at that—and so they should have been. What right has a Government to codify spiritual belief? That is what is upsetting Māori, as I learnt from the select committee. How dare the Government give itself the right to put bounds and limits on, and to codify, Māori spiritual beliefs! They are not asking the Government to do that.

Not only is the Government codifying those beliefs but it is also making an instrument for the Resource Management Act, which of course upsets the rest of society—all the non-Māori—in relation to how that will be applied. Somehow it will be used as a tool in resource consents—in whether someone wants to build a marina, engage in aquaculture, or carry out any development. Any activity on the foreshore and seabed will be subject to that codified tikanga.

We have had enough problems with the Resource Management Act. It was meant to be for the sustainable management of natural and physical resources. The fact that previous Governments have imported all sorts of ill-defined, nebulous spiritual and metaphysical references into it is a key reason why the Resource Management Act is in such chaos. What we are doing here, in part, is importing those same principles into the total management of our foreshore and seabed.

But it gets worse. Can members guess what agency will be the Government’s holder of all the foreshore and seabed? It will be an old friend of ours: the Department of Conservation. All reclamations, all management of coastal waters, and all applications to do anything with the foreshore and seabed will be controlled and managed on behalf of the Crown by the Department of Conservation. So we have the Department of Conservation having this great big new tool: the amended Resource Management Act.

That is what Winston Peters is supporting; that is what Dail Jones is supporting—and they say it is good legislation! It is appalling legislation, and future generations are going to regret it, absolutely. The ACT party will continue to oppose it.

Now I come to the issue of reclamations. The ACT party says, and I say, that we should be issuing title to a reclamation. A reclamation creates a block of land. But, no, it all has to be vested in the Department of Conservation. Let us look back in history. The foreshore used to be right outside the door of this building; there is a little plaque about it on the footpath. Lambton Quay was Lambton Quay because it was the foreshore, so all of that land in Wellington is reclaimed land. Henceforth, moving on in our history, all such land will be vested in the Department of Conservation. Who thinks that that is a good idea? I do not think it is a good idea. Winston does, though; Winston thinks it is a good idea. He supported that measure, and it is an appalling measure.

💬 Rt Hon Winston Peters: I raise a point of order, Mr Speaker. I was prepared to indulge the member for a while, but he cannot go on referring to me by my Christian name.

The ASSISTANT SPEAKER (Hon Clem Simich): The member is absolutely right.

Mr Peters supports having all future reclaimed lands under the control of the Department of Conservation. He supports a position where all the spiritual and metaphysical amendments to the Resource Management Act are applied to all future management of the foreshore and seabed. That will not work; it will be a disaster. I am prepared to stand here tonight and predict that it will be a disaster. Just as the Resource Management Act has frustrated all development in this country, this amendment to it—this so-called foreshore and seabed legislation—will certainly be a disaster. The ACT party will oppose it at every stage.

I begin my comments on the second reading of this legislation by acknowledging the hard work done by Russell Fairbrother, the chairperson of the Fisheries and Other Sea-related Legislation Committee, under very difficult circumstances, and also by other members of the committee, who worked hard in the best interests of the people of New Zealand. It has been a very interesting year in this specially convened committee.

I also express my thanks to the committee staff, who worked long and hard to try to accommodate the submitters in this process and give them the opportunity, within the constraints set by the Government, to be heard by the committee. A special note of thanks is also due to the committee’s independent adviser, who provided invaluable guidance and assistance throughout the process. My thanks go, too, to the officials who worked hard to provide advice on concerns raised by submitters—advice that was taken seriously by the committee.

The submission process at the select committee is a very important part of our democracy, and it is something that disturbs us a great deal with regard to this particular bill. Of course, it has to be balanced and kept in perspective, because one submission is only a part of the total picture, but it is a vital part of perfecting legislation in this country, so it is important to thank those who made submissions on this legislation. Some were very good submissions and many were very impassioned arguments, and that is the strength of our democracy. I only hope that no one is tempted after their experience with this bill to take the view that making submissions is a waste of time.

With all due respect to the Deputy Prime Minister, I feel that it is a bit rich for him to have sought leave earlier in the House to table a Clayton’s redline version of the bill, and then to say that that was done in a similar manner to what the committee would have done, had it been allowed to do its job. He said: “had the committee been allowed to do its job” when we all know that it was not allowed to do its job, because of the refusal of the Government to allow any extension to the 5 November deadline on reporting back to the House.

Being given a short space of time to deal with this bill, with all its submissions and controversy, was hardly fair to the committee. On many occasions we worked 4 days a week to try to do our best, from the date of the closing of submissions on 12 July to the report-back date of 5 November, which is not much time to deal with 3,946 submissions on such a controversial and passionate issue.

The political goal of the Government and New Zealand First to pass this legislation before Christmas is the real reason we are here today with such a large Supplementary Order Paper before us. I want to say to the Deputy Prime Minister that process does matter, and it is something that United Future has been concerned about throughout the select committee stage. Any leadership that does not understand the importance of process will find after a short period of time that it no longer has the loyal followers it used to have. It is in no one’s interest to see the process shafted somewhat by a rush to pass a bill with indecent haste, for no reason other than a political one, because when that happens, the possibility is that it can cause people to lose confidence in the process and then we all suffer from the apathy of lack of participation. That weakens our democracy.

I think there are times when urgency is needed to pass legislation. There are times when urgency is legitimately needed, there are times when deadlines have to be met, and there are times when haste is justified on some occasions—but this is not one of those times. This is definitely not one of them.

United Future called for an interim report to be given by the select committee to this House, so that the people of New Zealand would have an opportunity for more dialogue over the summer months before the committee made its final report early next year. The tabling of a 69-page Supplementary Order Paper by the Minister in charge of the bill indicates how many changes are being made to the legislation, and the fact that it has been completed only this morning further underscores the fact that the committee could not have completed a final report back to the House by the deadline of 5 November, anyway.

Changes continue to be made and further changes will be made, I am sure, as members debate the bill this week. How much better it would have been if the majority of the thousands of submitters had been able to have time to look at those changes before the bill was rushed through the House into law. Many of those changes may well be changes for the good—changes the committee actually recommended rather than changes that New Zealand First demanded, as its leader arrogantly claims. However, even if the changes are good, that does not excuse or negate the affront to the integrity of the process, or the frustration and disappointment felt by submitters who engaged in good faith in the process.

United Future’s position—that of engaging with the Government in the process of addressing the consequence of the Court of Appeal decision in the Ngāti Apa case—has been clear from the start. It was not an option to do nothing, as Peter Dunne made clear on a number of occasions. Despite initial attacks from other parties, we took the principled position of ensuring that the foreshore and seabed would be available for all New Zealanders to enjoy. This was implied in the concept of public domain, but to suggest that our support for the legislation or engagement in the process could be reduced to a simple discussion about the semantics of a few words, is to miss the point entirely, along with the commitment we showed during the select committee process to resolving a host of issues raised by the legislation as first introduced into the House and supported by the Government and New Zealand First.

Because the wording of the bill is now amended to include the concept of public domain and is not simply about Crown ownership, the Prime Minister suggested on the radio this morning that somehow we in United Future should now lend our support to the bill—even when the Government has introduced a Supplementary Order Paper of 67 pages with a myriad of changes. That just shows that she underestimates our commitment to supporting only good legislation that is truly in the interests of the people of New Zealand—both Pākehā and Māori, and all who have chosen to make this country their home.

We will not support or oppose legislation based on some gimmick, political trickery, or political expediency. Certainly, we cannot support the second reading of this legislation, because it is being reported back to the House by the select committee in the same form in which it was presented at its first reading—and that did not have to happen. After reading hundreds of submissions and listening to submitters, I am convinced that of course there is need for substantial change in this bill, and we will be engaging in the debate in this Chamber in the next few days. The fact that there is a need for substantial change can reflect only on the measure of how well the Government and New Zealand First did their consultation, or listened during their consultation, prior to the tabling of the bill on 8 April this year.

In our report to the select committee, I expressed our concern regarding a number of issues in the bill: the rights of access; the removal of common law fishing rights; the Crown claiming reclamations—as was pointed out by the speaker before me, Ken Shirley—and ancestral connection orders. It is pleasing to see from analysis of the Supplementary Order Paper that some of those issues are being addressed now as we move into the Committee stage of this bill.

Another consistent claim from submitters to the select committee surrounded the issue that their concerns about the Crown being trusted not to sell any part of the foreshore or seabed in the future has not been addressed in this legislation. For that reason, I will introduce a Supplementary Order Paper myself during the Committee stage, which seeks an entrenchment of clause 12(2)(a) by this Parliament, so that it will be more difficult for any future Parliament to be able to sell off or transfer the ownership of the foreshore and seabed to any other entity.

💬 Hon Ken Shirley: Double entrenchment?

I would certainly welcome a double entrenchment if the member, with his party, would give us support for that. It would be a very substantive and clear signal to send to the submitters who have that concern, particularly in light of ACT’s reputation in the House of selling off important assets considered necessary for the people of New Zealand.

United Future will not be supporting the second reading of this bill for those reasons, but we look forward to ongoing debate through the Committee stage.

The last time that I was granted leave to speak on the Foreshore and Seabed Bill, it was on a defining day in the history of this nation. The nation will not forget the 45,000 who marched to Parliament to describe their utter outrage and grief at the introduction of the bill. And the Prime Minister chose to talk to a sheep. The one thing we have in common with Shrek is that we were both fleeced. We were fleeced by a bill that will extinguish another Māori inheritance, this time to the foreshore and seabed—an inheritance that is recognised in tikanga.

Today is another such defining day in our history—a day when a travesty of justice is being supported into law. Whatever “rights” or “redress” it purports to offer, the fact remains that the Foreshore and Seabed Bill takes away the foreshore and seabed from tangata whenua. After 1840, most of the other whenua was, of course, confiscated under various laws, but Māori rights in the foreshore and seabed were never actually extinguished. The bill confiscates what little Māori have left by default. The colonising heritage took from our people their land, their whenua, their moana, with overt violence in the 19th century. Over the last century, and more, the alienation has become more insidious through the influence of lawmakers.

The court has found that the assumption of sovereignty in Aotearoa in 1840 means that, in accordance with long-established common law, title was subject to the pre-existing property rights of tangata whenua. Māori customary title is no different from that of any other common law title, which continues to exist until it is extinguished. That is why we have this bill—because it can be extinguished only by an Act of Parliament. What the Waitangi Tribunal found was that the indigenous customary title has always existed. Indigenous customary title is recognised by common law and affirmed by the Treaty of Waitangi. Both the Māori Land Court and the Court of Appeal agreed that the concerns and claims of tangata whenua concerning the seabed and foreshore should be heard. Instead, what we have seen over these last 18 months is a whirlwind ride whereby the Government is acting in a reactionary manner, attempting to change and override common law, the Treaty of Waitangi, and the decisions of our nation’s courts, and, most important of all, attempting by proclamation to override the interests of our people.

I was interested to hear the word “integrity” being floated by the first speaker in this debate. The Deputy Prime Minister should be aware of the definition of “integrity”: the quality of having strong moral principles; the state of being whole; the condition of being unified or sound in construction; and internal consistency or lack of corruption. Our contention today is that this Government, in this bill, fails to achieve any of these qualities.

If we had a Government with strong moral principles, we would see demonstrated the paramount principle—the principle of justice. That is what we are being denied. Instead, the Government tried to mislead the nation by plucking four concepts out of the air and calling them principles. It talked of the principle of access. Our people have always been clear in stating that there has never been any intention to deny people access to the beaches or those areas. It talked of the principle of regulation, yet the authority for regulation has been with local councils, regional councils, and the Department of Conservation; the question of the Crown’s role in regulation has never been questioned. It talked of the principle of protection, and what it really meant was that the protection of private property rights would be sacrosanct—protection of private investors, of harbour companies, of ports, but not of the guardians, those who for centuries have safeguarded and cared for the takutai moana. It talked of the principle of certainty, and the one certainty we have is that there is no way that the Crown is acting in the interests of whānau, hapū and iwi. The certainty is a racially divisive bill, because in fact the only groups that have certainty are the private property owners.

Integrity, it would seem, is also about the state of being whole. The state of being whole is not to pit one group of people against another. I was fascinated to hear Mr Peters say tonight that tangata whenua have New Zealand First to thank for this bill tonight. He spoke also of his belief that this bill was in the interests of all of the nation. Let me be clear: Mr Peters’ interests are purely and simply for the New Zealand First constituency, and it was a very clever strategy of Labour to get someone of Winston Peters’ calibre to take responsibility for aspects of the bill that Labour knew were behind the great flight of support for it from the Māori seats. In doing so Labour is trying to move the outrage of the people on to the Māori members of the New Zealand First Party, who, of course, do not stand in the Māori seats. In taking out ancestral rights, in limiting customary right to an activity, Mr Peters can delude himself into thinking he will be thanked by tangata whenua, but we know better. Customary right is not an activity. It is not about being limited to collecting hāngi stones and launching waka. It is a development right. It is a property right. The foreshore and seabed have always been open to use and enjoyment for all New Zealanders. Our rights are longstanding. Any extinguishment of those rights is raupatu.

The third aspect of integrity is the condition of being unified or sound in construction, and as we have seen in Mr Horomia’s press release and in his speech tonight, this Government is far from being unified. Mr Horomia used the word “fear”. The Minister protests too much. His plaintive plea that Māori have nothing to fear with the passing of this legislation recognises that he knows too well the reality of what our people think of this bill. The reality is that our people have almost universally rejected both the policy and the bill. And these are all of our people, including the so-called “haters and wreckers”, or the academic elite, those on the gravy train, the cunning, Pākehā, mainstream churches—however much the Government tries to dismiss us. The Waitangi Tribunal found the bill was inconsistent with the text in the principles of the Treaty of Waitangi. The United Nations Committee on the Elimination of Racial Discrimination requested that the Government respond to the allegations that the bill racially discriminates. The United Nations Universal Declaration of Human Rights sets the benchmark against which the actions of Governments may be judged. Article 17 of the declaration states that “no one shall be arbitrarily deprived of his property”, and it is clear that unilateral extinguishment of Māori property rights, as envisaged in the bill, is an arbitrary deprivation of our property interests.

The final component of the definition of integrity is the question of internal consistency or lack of corruption. Much has been made of the amendments that are supposedly about creating a day in court. Under the proposed legislation, territorial customary rights will be established through the High Court—a compromise position that is meant to placate tangata whenua. A day in court is almost an impossible dream for most Māori, as the costs of taking this case through the court are exorbitant—tens of thousands of dollars. So most of our people will be excluded. The Māori Party is adamant that this Government should have treated tangata whenua in the same way as it does all other New Zealanders, and allowed due process. The courts must be allowed to do their job and reach a decision based on the law of the land. The nation tonight knows that the Government chose to interfere in the due process of law when it chose to legislate this issue. And we know that as soon as the legislation is implemented, our people will lose all that they have lived off for the past 1,000 years.

It could have been so different. The Government could have considered amendments to Te Ture Whenua Maori Act. Amendment of one section in the Act could have rendered customary land inalienable, and would therefore have provided the Crown with security in terms of the foreshore and seabed remaining in New Zealand ownership. The Government could have chosen a conversation, a meaningful and honest conversation, a conversation based on listening to each other, on integrity, on the principle of justice—not one squashed into a 20-minute submission that could be ignored or not heard.

Tonight we have an arrogant Government. It is a Government that has tabled a 67-page Supplementary Order Paper, as it calls it. In effect, it is a complete amendment Act. It is a document that no one in the public has seen yet—no submitter, no media outlet, no one. The public will not have the opportunity to think about it, to talk about it, or to write or telephone their members of Parliament about it. Instead, the Government intends to ram it through over the next 20 hours or so, essentially without debate—without public input. There was an opportunity for the Government—it was given a quite reasonable proposition, I thought—to table that Supplementary Order Paper today, and to have us deal with this issue in a week’s time. Anyone would think that would be a reasonable way to do it in the circumstances. Even then, the Government simply refused. It does not want to debate it, and the reason it does not want to debate it is that it is scared. The Government is scared of the debate.

Let me be clear: National is committed to the foreshore and the seabed belonging to all of the people of New Zealand, in Crown ownership. That is our birthright, and that should be guaranteed. The initial statements of the Prime Minister and the Minister of Justice 18 months ago were correct, because they proposed a simple bill—a bill of no more than two pages, a bill that would have, in fact, guaranteed Crown ownership on behalf of all New Zealanders. That is our birthright. What we have seen in the last 18 months is this: raised expectations, false hui, and a distortion of reality by those members in the Government as to how they would protect people’s interests and rights. They were false hopes. They will be seen to be such.

The simpler and fairer way was Crown ownership, by way of a simple bill. National had made a clear undertaking: if that had been presented 18 months ago, we would have supported it. New Zealand First members—and I have heard their interjections—say that there is guaranteed Crown ownership. That is what they say. In fact, what they have done is strip the substance out of that—totally strip the substance. I say that because we have these kinds of concepts: customary rights orders for Māori, which under clause 35 are to be determined by the Māori Land Court; territorial customary orders, to be determined by the High Court—and the Government goes around boasting that they have been strengthened—and, finally, customary rights orders under clause 61. Each and every one of those measures adds up to denying the general public their rights, because what they do is deliver particular rights to particular people. That is wrong. We will see, in fact, over time, a steady erosion of the public interest, and nothing that the New Zealand First people say can deny that fundamental reality.

I wish to make a prediction. Within a few years some parts of the foreshore and the seabed—the fee simple—will be transferred to Māori claimants. The Government might like to deny that, and I wonder whether it will take the opportunity to deny it. I guarantee that it will not. The Fisheries and Other Sea-related Legislation Committee was told by Government officials that the whole purpose of absolute Crown ownership, as set out in clause 11, is to enable the transfer of that fee simple title to Māori as part of settlements. The officials said that they had to do that—and I assume it was on instruction from the Minister—to undertake those settlements. In short, unless one owns it one cannot transfer it. It is a simple proposition. That is the Government’s secret agenda, and that is, in fact, precisely how it has gained the support of the Māori members. It is absolutely clear that the foreshore and seabed of the West Coast harbours, Te Araroa on the East Coast, other parts of the northern part of the East Coast, and the Karikari Peninsula in the far north, will be transferred to Māori as part of settlements.

The precedent is the Rotorua lakes settlements. For a long period of time, almost the entire last century, those lakes clearly were in Crown ownership on behalf of all New Zealanders. In fact, Te Arawa voluntarily transferred that as part of the settlement—

💬 Hon Ken Shirley: And received valuable consideration.

—and received valuable consideration. What the Government is doing now is transferring the fee simple—and let us be clear that it is not customary rights, and not territorial customary orders; it is the fee simple—to the Te Arawa people. That is the intended precedent for the West Coast harbours, much of the East Coast, and parts of the far north. The Minister might deny it; we heard in this Parliament the Prime Minister say that is what the Government intended to do.

Do members know what the protection is? The protection is: “Oh well, it will take a special Act of Parliament.” Well, no doubt that is true, but that is precisely what is provided for in the bill. There is provision for special Acts of Parliament. Each and every settlement of Māori claims has always been preceded by a special Act of Parliament. So we know the real agenda of this Government. We know, on this side of the House, just how the Government gained the support of its Māori members. It intends to transfer to the Māori claimants parts of New Zealanders’ birthright.

I would say this. The Government has totally and completely ignored the interests of the people of the North Shore. I just want to recite the history of this matter. I see the member for Northcote over there. She knows about it, because I have spoken to her at length about it. She is, in fact, a former mayor of the city. The city of North Shore actually won a High Court decision that a marginal strip be provided at the Bayswater Marina. That strip was supported by the vast majority of residents. That case went to the Court of Appeal. That appeal is now stayed pending this decision. Would it not be a reasonable thing to allow that case to proceed, and, whoever wins—be it North Shore City or the Bayswater Marina—that would be the outcome? That is what people mean by fair justice.

Why do I draw a distinction between that case and Ngāti Apa? The Government at least claims that this bill is a sort of reflection of the Ngāti Apa case. In the North Shore City case, all that the Government has done is simply strip away the decision and leave nothing in its place. In fact, what the Government has done is this. It has said that the Bayswater Marina is the winner, by legislative fiat. We have had the Prime Minister go to the North Shore, to the Takapuna point—Fort Cautley. She said that it should be public land. She campaigned in North Shore on that. Ann Hartley campaigned on it. It was transferred to the public. We see the complete opposite for Bayswater Marina; the Government has said that it shall not be public land, that it shall belong to the Bayswater Marina by way of a lease. That was the result. I will be putting up an amendment to allow that Court of Appeal case to proceed. In the way that our courts work, a decision will come. People have a right to have their cases heard and decided—and that decision will be accepted, either way—rather than this running over the top of the interests of the residents. It is a travesty, and the only answer that the Government gives to the people of the North Shore is to rely on the Resource Management Act, which shall be their protection. It is simply not good enough.

I acknowledge, in this particular instance, the member for the Green Party who has also been dealing with this issue. I have to say this issue was brought to the attention of the Government and the New Zealand First party some weeks ago, and they have ignored the residents of the North Shore.

The Foreshore and Seabed Bill is, indeed, an important bill for the consideration of this House. It addresses an area of the law that has long been uncertain: the application of common law customary rights and title in the New Zealand context. The bill clarifies that although the foreshore and seabed of New Zealand is to be held in perpetuity for the benefit of all New Zealanders, the customary rights of Māori in the foreshore and seabed are also to be recognised. Furthermore the bill provides a procedure for Māori to follow in order to establish whether, in a particular situation, those customary rights still exist or have been extinguished. The bill therefore recognises and balances competing rights and interests. It achieves a balance through an application of the principles of access, regulation, protection, and certainty, as outlined by Dr Cullen.

This bill has generated much heat, but little light, on occasions. Much has been made of the need for more consultation and more time, to delay a decision. It is important to state that this bill has been through an extensive process of public and parliamentary debate. Before the bill was even introduced, a discussion paper was debated at 10 hui around the country with Ministers and members of Parliament. A total of over 4,000 written submissions was received, read, and listened to. There was also an urgent Waitangi Tribunal hearing, which was supported by the Crown’s petition for urgency in that hearing. At that hearing it is interesting to note that the claimants were represented by 35 lawyers, so that their case could be fully heard. The Crown, of course, was represented by four. The report of the tribunal did lead to changes in the bill that was eventually introduced into the House, the most important of which was the statutory recognition of the High Court’s jurisdiction to hear claims relating to territorial customary rights.

The bill, when introduced to the House, received, as we have heard, 4,000 submissions. I think that it is important, however, to place that in context. Although as I have said it is an extremely important bill, it is useful to be reminded in this context that the Civil Union Bill received 6,419 submissions, the Employment Relations Bill 17,000 submissions, and the Smoke-free Environments Amendment Bill 8,053 submissions. Although this is an important issue, Parliament is the place where such issues are heard, determined, debated, and clarified, and where laws are made. It was therefore disappointing that the Fisheries and Other Sea-related Legislation Committee could not bring itself to include in its report back a consideration of those submissions, thereby showing respect to those who had made them by having recommendations for amendments to the bill that were based on the thoughts of those who had appeared before the committee. However, that was a decision for the committee to make. Therefore, it became the responsibility of the Government to introduce Supplementary Order Paper 302 in the name of the Hon Dr Michael Cullen, recommending changes that reflected the decisions made. The assistance and response of New Zealand First must be acknowledged in that context, and in particular, the contribution that has been made to the Supplementary Order Paper by Mr Dail Jones.

It is my pleasure, then, to speak this evening in the second reading debate on this bill, and to refer to some of the most important changes that are recommended in the Supplementary Order Paper, since it is apparent from the speeches already that it has not been read. The changes include, first, a clarification of the objective and purpose of the bill, making it completely clear that the foreshore and seabed is preserved for all New Zealanders, as well as preserving existing customary law rights.

Secondly, ancestral connection orders have been removed, as they were widely criticised by many submitters as imposing unnecessary cost—not only financial cost but cost in terms of the mana of those who felt that they should not have to come before a committee, a court, or another body to establish their connection to the foreshore and seabed. That was acknowledged by the Government, but because the select committee could not bring itself to agree on that issue, the Supplementary Order Paper reflects the fact that the Government, having listened to those submitters, has removed the ancestral connection orders.

Thirdly, the new criteria for the exercise of the jurisdiction of the High Court are also clarified in the light of the submissions that were made. Such criteria now include the need for applicants to demonstrate that the claimed rights existed in 1840, that they have continued to exist in a substantially uninterrupted manner, that they have involved the exclusive use and occupation of a particular area of the public foreshore and seabed, consistent, of course, with public rights of navigation, and that the applicants have had continuous title to a significant part of the dry land contiguous to the area.

Fourthly, the Supplementary Order Paper acknowledges the concerns of submitters on the nature of redress, and that important point was made by many submitters. It provides, therefore, new provisions for redress of territorial customary rights. Successful applicant groups are now able either to enter into discussions with the Crown for the purpose of negotiating an agreement as to the nature and extent of the redress to be given by the Crown, or to apply for an order from the court that gives effect to the establishment of a foreshore and seabed reserve. Such a reserve will be held in common use and benefit for the people of New Zealand, and will acknowledge, of course, the important role of the exercise of guardianship by the applicant group. It is important also to acknowledge in this context that it is for the claimants to decide which route they wish to take in terms of gaining redress that is appropriate for them.

This legislation is very much the result of New Zealand’s particular historical circumstances. It has been constructed after a lot of engagement and discussion, both within the Government and between the Government and the wider public. The story of its making tells us much about the constitutional architecture of this country. In the end, however, the bill expressly balances the various rights of all New Zealanders. It balances the rights to continue long-established customary practices relating to proportions of the public foreshore and seabed with rights of access to public foreshore and seabed for recreational purposes and, under appropriate controls, for commercial purposes. I commend this bill and the Supplementary Order Paper to the House, and I look forward to the debate on them.

It is at times like this, when Parliament behaves at its worst, that New Zealanders like us the least. The Foreshore and Seabed Bill is one of the most significant pieces of legislation to come before this House in recent times, but from the way that the Government has behaved, one would not think that. That is an insult to New Zealanders. Even the way that the Government has ignored most of the submissions in the select committee process, and has ignored a lot of what Māori have said, is an insult. In terms of the way the Government has handled the issue, it has ignored not just Māori but a lot of other New Zealanders, as well. To put this House into urgency for such significant legislation and to ram this bill through in 2 days, tabling Supplementary Order Paper 302 in the name of the Hon Dr Michael Cullen at about 5.30 this afternoon, a Supplementary Paper that is as substantial as the bill itself, without so much as having subjected it to any sort of scrutiny by people outside this place—it is all very well that we in this House have it—is symptomatic of the cynical way that the Government has handled this issue. Having reacted in an entirely inappropriate manner when the matter first burst on to the scene with the Court of Appeal decision in June last year—a knee-jerk reaction, I would say—this Government will pass this bill into law some 17 months later, in a similar knee-jerk fashion.

Something needs to be said about the Government’s reaction when the Court of Appeal issued its decision last year. Winston Peters said that that decision came from left field. It did not come from left field. Any Government worth its salt would have been prepared for a decision that went against what it wanted. The Government ought to have been prepared for that. Any competent and careful Minister or Government would have prepared for that outcome to the case that had started to wend its way through the courts—the Ngāti Apa case—from 1996 onwards, when National was still in Government, starting with a judgment stated in the Māori Land Court by Judge Hingston and eventually reaching the Court of Appeal. Any competent Government should have been prepared for a decision that might go the other way—against what it expected.

This Government was not prepared for that. People may have felt that the law was settled. They may have assumed that the Crown owned the foreshore and seabed, but as I say the very fact that the case had wound its way up through the tiers of our courts should have been a warning that maybe someone ought to be properly prepared for it. The Attorney-General was not prepared; neither was the Prime Minister. So what we had on the day after was politics at its worst. It was a knee-jerk reaction that raised the heat—raised the bogey—by saying that Māori could not own the foreshore and seabed because they would bar New Zealanders from going to the beach. From that point on, it was all downhill.

Winston Peters makes reference to and chides those political parties that are not supporting the bill. He is scathing of us, and says we are playing politics. He should talk! What does he think he is playing? Principle? I do not think so; he is not. The Court of Appeal decision did not raise any bogeys. Basically, the Court of Appeal decision stated that the Māori Land Court had jurisdiction to entertain claims. That is all it stated. On the basis of what it had seen, the court thought it was unlikely that Māori would succeed—they might succeed, but in very few cases. So there was no need for the Government to raise the heat in the way it did—no need at all. But, of course, the Government did that because it wanted to reach out and assure New Zealanders that Māori would not get their way, and wanted to tell people not to worry, because it would do the right thing.

The Attorney-General, who spoke just before me, went through the legislation in the way that she does, as if it is all nice and tidy. Well, it is not nice and tidy. I had Māori people ringing me from outside this afternoon, and they were saying I was the one ramming this legislation through the House. [Interruption]

💬 Hon Ken Shirley: I raise a point of order, Mr Speaker. I apologise for interrupting the member’s speech. I was very interested in what she was saying, but we are getting a barrage of sustained and noisy interjections from the Government benches. Government members obviously do not like what they are hearing from the Opposition in this debate. I would ask you that interjections be rare and reasonable, and preferably witty.

I am very grateful to Mr Shirley As I say, politics has been the order of the day. Nobody in this House should deny that this place is all about politics. Let us not pretend that it is about anything else. The Government, as I was saying, has played politics on this issue right from day one, and Winston Peters now, on the eve of supporting the passage of this bill into law, is playing politics to the nth degree as well, so he cannot point the finger either.

I want to say something to Māori people. I hope the New Zealanders who are listening to this debate will not take that to mean that I am necessarily on the side of their arguments. There is no doubt that the foreshore and seabed belong to all of us. We are all New Zealanders. Most certainly a way had to be found to balance the interests of all. This bill does not do that. [Interruption] I raise a point of order, Mr Speaker. I do not mind a barrage of interjections from the Government side of the House, but those members are not sitting in their proper seats—certainly, John Tamihere is not. If he wants to sing out, he should go back to his own seat. [Interruption] I say to Government members they do not have to be kind to me, but they should be kind to New Zealanders. We ask for what we get in this House, but New Zealanders out there do not. They deserve something better than this. They deserve something better than a bill that on the one hand states to Māori they should not worry because their mana is protected, yet on the other hand states to New Zealanders at large that they should not worry because they will have public access. The Government cannot have it both ways. This bill does not deliver either of those things to either group of people, and does not make either of them feel that their mana is protected or that they can have confidence in anything this Government has done.

I want to send a message to Māori people. That should not be taken to mean that I take their side. I hope I am here for the good of New Zealand, like everybody else. But I want to say that during the select committee process some angry words were spoken to the Fisheries and Other Sea-Related Legislation Committee at some of the hearings, and there was talk of civil action being taken. I want to say to Māori that they should not go in that way. They should keep their dignity. The one thing Māori people asked for and did not get was due process of law. It is very ironic that Māori should seek to have the rule of law upheld, and this Government should step right over it. That is absolutely ironic. But Māori can go down in history as seeking only to have the rule of law upheld. They should be proud of that. I want Māori people to think about this. They should not let this setback intrude upon the momentum of development that is clearly coming through. Māori are everywhere in business—they are everywhere in enterprise. They are earning export dollars for this country and are running innovative businesses, both here and overseas. So Māori should not let this Government step on their dignity. They should just keep on rolling through, and there will always be another day.

I believe that this debate highlights one major issue, and that is the question of leadership. The only leader of the Opposition in this House is the Rt Hon Winston Peters. He was here tonight, to front up to this issue. Where was the leader of the National Party tonight, to speak in this House? When will he speak in the House tonight?

💬 Gerry Brownlee: I raise a point of order, Mr Speaker. Might I say that this will be the first of many, if that line continues. I understood that it was inappropriate to mention the absence of members from the House. Dr Brash, of course, is engaged in important work of—[Interruption] It is about as important as that useless Prime Minister, Helen Clark, who has not bothered to come to the House tonight to explain why her Government is stripping New Zealanders of their rights.

💬 Hon Dr Michael Cullen: I raise a point of order, Mr Speaker. I listened to what Mr Dail Jones said. He did not refer to the absence of a member; he said that he did not front up on the issue. He may well be sitting there, for all I can see, and not fronting up on the issue.

💬 Gerry Brownlee: I raise a point of order, Mr Speaker. Just for the record I want to make it absolutely clear that Helen Clark is not here as this is a bill that terrifies her.

💬 Hon Dr Michael Cullen: That is doubly out of order. Both parts of that statement are out of order. The member should learn what the Standing Orders are on the reference to members being absent from the Chamber.

The ASSISTANT SPEAKER (Hon Clem Simich): The member is quite right.

I will continue my speech, and I would like to thank the honourable Gerry Brownlee for letting everybody know that the leader of the National Party is not here tonight, which is not the point I was making.

💬 Gerry Brownlee: I raise a point of order, Mr Speaker. Where is Winston Peters? I take it that he is in the bar. Call him down here immediately.

The ASSISTANT SPEAKER (Hon Clem Simich): That is not a point of order.

The Rt Hon Winston Peters, the leader of the Opposition as far as the Opposition parties are concerned, has spoken in this House tonight and made a contribution to this debate. We have heard nothing of any worth from the other Opposition parties in this House. I say that this is a question of leadership. When New Zealand First was confronted with this issue in the Ngāti Apa case, the Rt Hon Winston Peters said in this House on 25 June 2003, within days of the decision in the Ngāti Apa case, in Hansard, Volume 609, at page 6566: “New Zealand First will support any move to ensure that the Crown has legal title to the foreshore and seabed.” That is not a political speech; that is what we said, and that is what we are doing tonight. We are making sure the Crown has legal title to the foreshore and seabed.

Again we said, in the same speech: “Māori traditional rights of use must be protected, but those rights cannot be extended to property ownership on the basis of race.”

That is what we are doing tonight. We are not politicking on this issue. We are giving leadership—something the National Party and other Opposition parties are not capable of doing. We said it, on 25 June 2003, and we are doing it—unlike the speeches that we have heard before.

Again we said, in that particular speech: “All Governments must be fair and neutral in matters of race.” When we look at the customary rights orders in the High Court we are making it clear that they can be obtained, regardless of race. I look forward to the Auckland Anniversary regatta—which Mr Baldock seemed to think was not an important issue, when he mentioned it in the select committee—being able to get a customary rights order, as the Hon Wayne Mapp of the National Party established could be the case in his questioning of the officials. I look forward to that as a sign of the equality that is available under this legislation.

New Zealand First has shown leadership in this matter. We have set out what our principles were, and we are now giving effect to them. We have heard nothing like that from the National Party. We heard a speech made at Ōrewa, which could only be described as divisive. We have heard, in the last few days, that the National Party supports customary rights, but when it is faced with a bill that does put up customary rights, it opposes it. What sort of leadership is that on the part of the National Party?

We have heard a speech from Mr Brownlee tonight, which suggests that he has not even understood all the submissions he heard and has no grasp of what is contained in this bill. If he has any aspirations for leadership, he has shown tonight that he is really at sea on the whole issue. He has no idea of what he is doing, and even tonight he has let us know the whereabouts of his leader. That is not the sort of thing that any aspiring leader should undertake.

It is really a privilege and a pleasure for me to be taking part in the debate on this bill. I must say that as a New Zealand First member of Parliament—I am delighted that I am a New Zealand First member of Parliament tonight—I think National Party members should be ashamed of the way in which they are behaving on this legislation. When I was in the House previously we had a problem with Samoan legislation and we had to take some action, and the National Party did. I remember certain Labour Party members being dragged—kicking and screaming—into the Ayes lobby, or voting unanimously, on that issue. I reread that debate a little while ago and I read the speeches made by some people—who occupy a very high office today—who protested against the issue. But, at the end of the day, it was a national issue. Something had to be done. The National Party did it, and the Labour Party supported it—unanimously. That showed a degree of leadership on the part of the Labour Party, and perhaps it was no great surprise that it went on to win the next election.

This National Party has no regard for the welfare of New Zealand, in the types of speeches we have heard here tonight. New Zealand First has set out what leadership should be. We have seen our leader, the Rt Hon Winston Peters, act in terms of what he said he would do in June 2003, and that is what the bill does.

It is a fairly lengthy piece of legislation, one way and another, but, essentially, I will read out a couple of things to the honourable Gerry Brownlee, whom I have tried to help from time to time. For example, new clause 2A, “Object”, states: “The object of this Act is to preserve the public foreshore and seabed in perpetuity as the common heritage of all New Zealanders in a way that enables the protection by the Crown of the public foreshore and seabed on behalf of all the people of New Zealand,”—including the Māori people of New Zealand, if I can summarise the end of it.

So all New Zealanders are protected under this bill and all New Zealanders have the right to use the public foreshore and seabed. That was a clause that was suggested at the select committee, in part, because the current purpose clause was not adequate enough, and the members of the committee, from all sides of the debate, said that we need to make this clearer and say that it is on behalf of all the people of New Zealand. That was put to the committee, and, in consideration between the Labour Party and New Zealand First, clause 2A was accepted, because that is what the committee seemed to think was needed.

Something had to be done, of course, because this particular area is in two strands: the first under Te Ture Whenua Maori Act and the second under the common law. Provisions under Te Ture Whenua Maori Act are tidied up here, and, hopefully, the Court of Appeal will now have no difficulty in understanding that the term “foreshore and seabed” means just that, and does not mean “land”. We have got a pretty good definition of foreshore and seabed, and I am sure there will be no difficulty in that respect, and, of course, that is important because currently there are 80 applications before the Māori Land Court. If all those 80 applications are successful, Māori would own the entire coastline of New Zealand. So something had to be done, and this bill does it, while still protecting customary rights.

The second leg is the common law. The Ngāti Apa decision is based on common law, not on the Treaty of Waitangi, as some other members have said. Something had to be done to codify the common law situation to make it clearer to everybody, and that is what this bill does. I am a lawyer, and when people go to court I really feel that after they have gone through the tests set out in this legislation—and the hurdle in this legislation is like Everest and a half, with no oxygen; it is a pretty tough test—and they have won, they should get something at the end of the day, and they ought to have some idea of what it is they might get. It seemed to me to be common sense and fair that we should agree to some sort of clear redress.

I was delighted to take part in creating a bill in which we tried to specify what it should be. I was a wee bit disappointed that we had phrases like “Māori reservation” and “trustees”, although I can understand where the idea for trustees came from, and there is a Māori word that means beachside, but that I cannot repeat; it was just a bit too much for me. All the witnesses we heard suggested kaitiakitanga, or guardianship. They wanted that to be made very clear. That was what they all felt was their way of life, and it was a great pleasure to suggest that the phraseology in the bill should relate to guardianship, and that we should have a foreshore and seabed reserve.

But, again, I am a lawyer, and I am a suspicious sort of bloke, and I felt we ought to make it clear in the bill that people going on to these foreshore and seabed reserves—the ownership of which is still vested in the Crown, and in which there is free access and navigation—do not have to pay to go on them. I can just imagine some bloke with a pickup sitting on the side of the beach saying: “Hey, this is ours. You’ve got to pay a few dollars.”, and all sorts of problems arise. We have seen what happened at Mount Tarawera. We saw it happen at Lake Taupo—and who gave away Lake Taupo? So this bill makes it quite clear that all New Zealanders have access to the foreshore and the seabed.

I am reminded of the song, which Mr Gerry Brownlee perhaps sang in his day: “This foreshore and seabed is your foreshore and seabed, it’s my foreshore and seabed, from Stewart Island to Cape Reinga and the Chatham Islands. This foreshore and seabed is here for you and for me and for all of us.”

Kia ora huihui mai rā tātau katoa. E te kaihautū me te whakaruruhau ki a mātau tēnā rā koe, Clem.

[Greetings to us all who are gathered here. Greetings indeed to you, Mr Speaker, Clem, the one who shelters us.]

Dobra vecher, dobra vecher.

This is a further mighty step on the road to fulfilling a nationhood manual.

💬 Hon Ken Shirley: I raise a point of order, Mr Speaker. You may not have picked it up, but the member, in addressing you, used your Christian name. That is certainly not appropriate. It is grossly disorderly to call another member by his or her Christian name but to actually address you, the Assistant Speaker, as “Clem” is certainly out of order.

The ASSISTANT SPEAKER (Hon Clem Simich): Not in the context he used it in. The member may interpret for the House—his first sentences—if he wishes.

This bill is a further mighty step on the road to fulfilling our nationhood manual. We continue to write it. We continue to persevere, and we continue to be stoic, but above all, we must continue to be fair in continuing to write this most important document. We support the foreshore and seabed legislation as part of the continuing and evolving journey of nationhood. We do not care what Tariana Turia says or what Pita Sharples says. We do not much care what Gerry Brownlee, Don Brash, or Rodney Hide might say. What we care about is building our nationhood. It is easy to oppose. It is easy to walk over justifiable rights that are deeply ingrained in the bedrock of our constitution in terms of our nationhood. They may well walk over them; this legislation does not. This bill would not be here were it not for the finding of the New Zealand Court of Appeal. It ruled that Māori may have a range of existing rights awaiting exploration and crystallisation.

I am grateful to be a part of the Labour Party. This party represents all New Zealanders’ interests, not just the vested interests of a few people in the National Party or ACT. Our parliamentary make-up is the face of the future. It reflects the face of a dynamic, go-forward New Zealand, but, above all, it reflects social justice. It reflects an acknowledgment of private property rights. It reflects the ability to bring our races together in this country and to forge them in a way that no other party in this Parliament can. Parties in the Opposition could never forge the continuity that this Labour Party can.

I acknowledge the leadership of Dr Michael Cullen. I acknowledge the integrity of our leader, the Prime Minister, in this very fraught and difficult process. But, most of all, I acknowledge my Māori colleagues, who have had to undergo a daily baptism of fire in their electorates on this most important issue.

We support the Supplementary Order Paper for the following reasons. The first is protection. When our ancestors signed the treaty, which is now entrenched and embedded in the constitution and the consciousness of this nation, they signed up to three major articles. We acknowledged the first principle, of governorship—kāwanatanga. In turn, the Government acknowledged our rights of rangatiratanga over matters Māori. In the third article, our ancestors acknowledged that we would be treated with equality as citizens of this country. In allowing the Crown to assert legal and beneficial ownership over the foreshore and seabed, we acknowledge the Crown’s right to govern.

In governing, the Crown has a significant fiduciary responsibility to Māori in terms of the principle of protection. It is well known that common law rights can be extinguished only if they are freely alienated by the holders—the Māori people. We demand the right of equality before the law granted to us under article 3 of the treaty. Just because our rights are different and have a different genesis—Mr Brownlee has to get his limited mind around that—that does not mean they are special and preferential. They are embedded in the bedrock of our constitution. We walk over those rights, we take them away, at our peril.

Our ancestors fought—as they did in every battle that is respected around this Chamber—and died for the rights that have been justly obtained under this legislation. The National Party can talk about preference and special rights, but they are not. The rights are different because we have a different genesis. We therefore support the legislation. This legislation attempts to codify and explain those rights.

What about due process? Under no circumstances has the Crown moved to extinguish the right of due process. Māori can and, I would argue, must proceed to the Māori Land Court and the High Court to assert their rights. This legislation guarantees that. There is now a clear process for doing that, and the possible results are now codified.

Regarding the definition of customary territorial rights, we have been somewhat constrained by our colleagues in New Zealand First. I acknowledge that. I leave it at that. That will come out at the Committee stage.

It has often been said that we have stopped redress. Once the territorial customary right—aboriginal title, if one likes—has been found by the High Court, the High Court then directs the applicants to negotiate, as they must under the legislation.

The ASSISTANT SPEAKER (Hon Clem Simich): This call was split by arrangement to give each speaker 5 minutes each.

All Pākehā must approach this bill with hesitant steps. It was the forebears of we Pākehā who, with good intentions, may have contributed to the tragic marginalisation that has been the past and real experience of Māori, at the expense of accepted Pākehā culture. As a Pākehā, I ask myself what my mokopuna—my grandchildren—will say of my endorsement of this bill. I approach the concepts in this bill, which are grounded in tikanga, and I know I can intellectualise tikanga but I can never live it.

I also approach the contents of this bill with 30 years of intense and daily experience in litigation—advocacy, in the first instance, and at appellate level, including the Privy Council. I thus believe this is legislation that will become recognised as a law that all New Zealand will be proud of, and that this Labour Party will develop as a flag-bearer. The pride will stem from the sound legal and moral basis of the bill. This bill is a reflection of inspired, thoughtful, intelligent, and principled leadership of both Pākehā and Māori leaders of this country. That is also the leadership that truly reflects the face of 21st century New Zealand.

The work of Dr Cullen, Margaret Wilson, Dover Samuels, Parekura Horomia, Mita Ririnui, John Tamihere, Mahara Okeroa, Dave Hereora, and Moana Mackey on this bill has been considerable and ongoing. It has not been done in the isolation of some extreme theory or some political, petty agenda. We see that in the approach taken in this House by the parties that lament receiving a Supplementary Order Paper today. They had an opportunity of contributing to the development of this bill, but they abrogated that responsibility by playing politics at the select committee and by refusing to debate the amendments that would be available. But if one reads the report, which, surprisingly, the members of the select committee agreed would go forward, and the report of the independent legal adviser that they unanimously endorsed—the adviser who endorsed the concept of this bill—we can take from that endorsement that the concepts of inalienability, of guardianship, and of public access are all inherent concepts of our foreshore and seabed, and they are reflected in this bill.

Not once did those lions in this House tackle the concepts articulated by Dr Paul McHugh in his 2½-hour contribution to the select committee.

💬 Gerry Brownlee: You are a waste of space.

Not once did that man even open his mouth for fear that he would be put in his place.

Not once did Dr Wayne Mapp, who shared the same university background, challenge the concepts of Dr McHugh. But when it comes time to politicise and to advocate in the public arena, to grab the airways and to inflame, boy, they are very brave then! But they avoided pitting their wits against the best mind behind the development of this bill. That is why I stand proud. This is a moral bill, because it balances—

💬 Gerry Brownlee: I raise a point of order, Mr Speaker. I ask you to keep your ears open for some of the comments that are coming from the other side of the House. We appreciate that this is a vigorous debate, and we realise that someone like Russell Fairbrother is going to be somewhat reckless with the truth when he gives a speech like this, but it is inappropriate that Mr Tamihere—of all people—makes the comments he has been making. In the same vein as the Prime Minister, might I say that I am offended by his comments and ask that he withdraw and apologise.

The ASSISTANT SPEAKER (Hon Clem Simich): I am afraid that I missed the comments. I apologise for that. I do not know what they were, but I accept that the member heard something that offended him.

💬 John Tamihere: In the event that people were offended, I withdraw and apologise.

What we have seen in the reports of the various members of the select committee demonstrates that this is a moral bill because it is balanced. It is balanced because it reflects the different perception, use, and understanding of property in the Pākehā world—the very refined sense of that—and the different view in the Māori world. This bill successfully brings these two together, and no party, in any of its reports, has undermined the basis of that. This is a legally sound bill. It is legally sound because it codifies a difficult area of common law. It codifies the common law in a New Zealand sense. It reflects the plea of all submitters that what is special to New Zealand goes forward in our legislation. This bill lays a road map for future litigation, so that the road map is not developed on the haphazard status of how the case is pleaded—by the inadequacies of a particular lawyer or the over-exuberance of another lawyer.

Debate interrupted.

Sitting suspended from 10 p.m. to 9 a.m. (Wednesday)