Foreshore and Seabed Bill

This is where Parliament will start to untangle the extraordinary spin that the Deputy Prime Minister has put about in the last couple of days, suggesting that this amended bill—because Supplementary Order Paper 302 is not really a Supplementary Order Paper; it is a fully amended bill—will solve and salve all the problems and concerns that many New Zealanders have.

We see in it this tricky little idea of inserting a new clause 2A, “Object”. That is a Dail Jones initiative, and in it there is a paragraph that almost contradicts itself.

💬 Darren Hughes: It must have been written by the National Party.

Mr Hughes, the confused member on the other side of the Chamber, is saying that it must have been written by a party other than Labour. It was; it was written by New Zealand First, and, frankly, the New Zealand First member should be sitting in the Minister’s chair, because this amended bill is his work.

We have here a problem insomuch as whereas the object is, supposedly, to put the foreshore and seabed into Crown ownership for the people of New Zealand, the Government equally wants to say that the foreshore and seabed can be dealt away in deals with Māori, provided that the High Court of New Zealand agrees with that. That seems to me to be a very weak protection, given the sort of judicial activism in this area that we have seen in the last few years. Is it not extraordinary that, on a bill that is a result of just that sort of judicial activism, we end up seeing an old lawyer, Dail Jones, trying to solve the problem by once again creating the opportunity for these things to go back before a court?

It is a problem insomuch as this is the part of the bill that also makes it very clear to non-Māori New Zealanders that they have fewer rights to undertake activity on the foreshore and seabed of this country than Māori do. That is undeniable. That is quite undeniable, because unless one is Māori one cannot go to the High Court to talk about a customary right or a customary use.

💬 Dail Jones: That’s not true.

That is true. The bill excludes it particularly. [Interruption] Here is a question for “Minister” Dail Jones to stand up and answer. This is his cunning out; this is his out on this argument. He is saying that I am wrong because if non-Māori were here before 1840, and they had established some sort of activity that continues today, they could get a customary right, but if one came after 1840, one can forget about it. The fact is the vast majority of people in this country arrived here after 1840—or their ancestors did—and their activities commenced after that time. These people think they are very clever by saying that anyone can go for a customary right, provided that it happened before 1840. Well, that is the divisive aspect of this bill that will do damage to this Government. I tell Mr Samuels that it is quite inappropriate, in the year 2004, to tell New Zealanders that they cannot be considered equal to Māori in their love of the coastline of this country, because their ancestors were not here before 1840. That is a nonsense.

It is as big a nonsense as saying that Māori can claim the seabed out to the territorial limit, which did not exist prior to 1967. That is another little piece that has been put in place by Winston Peters. Last night he was claiming that New Zealanders will thank him for his great work on this measure. Although we know that Mr Jones has done the work, we know that Mr Jones would not breathe without Mr Peters telling him he can, and the reality is that this measure very much will be sheeted home to him. He is the man who has decided that this Parliament will pass a bill that separates Māori and non-Māori when it comes to consideration of activities on the coastline of this country.

What a thoroughly confused piece of extended piffle that was from the deputy leader of the National Party! First of all, let me make it clear to him that new clause 2A was drafted in consultation with my colleagues in the Māori caucus committee and with—

💬 Gerry Brownlee: Oh!

It is even worse, my goodness me! A brown face has had something to do with drafting the bill, and that makes it totally bad according to the deputy leader of the National Party. Horror show! It is a nightmare and Friday the 13th all in one go for the poor old deputy leader of the National Party that Māori have had something to do with the bill. Of course, National members are not racist on this bill, at all! No, no, no! They just do not want anything to do with Māori being involved in it—that is all.

Clause 2A was put to the New Zealand First members and they agreed to it. They agreed as part of another set of arrangements that were entered into the bill. So let us absolve Mr Jones of the blame for new clause 2A; the Government accepts full responsibility.

💬 Gerry Brownlee: We don’t believe you!

I do not care what the member believes. The member’s brain is something I do not want to explore for more than a few seconds.

What the member does not seem to understand is that common law rights are those rights that existed at the time that the Crown assumed sovereignty. The Court of Appeal found that common law rights had not been removed by the Crown’s assertion of legal ownership of the foreshore and seabed. That was not judicial activism; that followed any number of overseas judgments in that area. That member needs to front up and say whether he believes there are common law rights, or not. What he is really saying is that if those rights are held by Māori, they should not be allowed to exist. That is what he is actually saying.

He is totally wrong when he says that this bill enables only Māori to go to the court. Pākehā can go to the High Court for a declaration of customary usage rights. The only difference is Māori go to the Māori Land Court in relation to customary usage rights, and the reason is that there are tikanga issues that the Māori Land Court has expertise in. Both Māori and Pākehā have the right to go to the High Court on an equal basis in terms of the issue of territorial customary rights.

💬 Gerry Brownlee: What is the cut-off?

The cut-off is what the law itself determines: the point at which the Crown assumed sovereignty. If those members do not like that, then they are simply rejecting the entire jurisprudence on these matters, not just here but in any other number of jurisdictions as well.

This really emphasises how stupid the National Party is on this bill. It does not have an argument. National members are simply trying to wind up an issue around race to frighten people. And what confusion and contradiction there is! Other parties in the House claim we are taking everything away from Māori. The National Party claims we are giving everything to Māori. Georgina te Heuheu says we are taking everything away from Māori. The ACT party says it thinks there should be property rights, but it does not think Māori should have any of them, so it will oppose the bill on both grounds. And Metiria Turei exists in some kind of ethereal stratosphere; I have yet to understand what she is saying at all on the issue at this particular point.

The Government’s position is clear: the Court of Appeal left us with a legal framework that would have led to results that were divisive and untenable from a public policy perspective—that is, the transfer into private ownership of public foreshore and seabed. Firstly, we reaffirm the Crown’s ownership of the public foreshore and seabed. Secondly, we provide the mechanisms for the consideration of customary usage rights. Thirdly, we provide the mechanism for redress where there might have been territorial customary rights established, and, to deal with the issue the member raises, we place in statute the test that has to be applied by the court in the consideration of those applications.

What bit of that can those members actually oppose in principle at all, as opposed to trying to do an Ōrewa speech, scratch-scratch job, hoping somehow or other that people will think there is something in it? We need just listen to the media reports, and just read the editorials; already, they have nothing to say of any interest. Those members will bash their gums uselessly for some 15 to 20 hours to come, saying nothing of any importance at all throughout this debate. They have nothing to contribute on this issue, and they have not contributed to this issue at any stage. They have no argument of any substance, do not understand the law, do not understand the Court of Appeal judgment, and do not understand the bill, but that will not stop the National Party, because it never has stopped it when it comes to issues of complexity.

What an arrant bit of nonsense we have heard from the Deputy Prime Minister! It is typical of his arrogance in this place. It is a testament, is it not, that he himself has not read new clause 2A. It has to be read out, because Mr Jones, as usual, has tried to deny the public the truth. What does this clause state?

💬 Dail Jones: I raise a point of order, Madam Chairperson. The member cannot say that I am in any way trying to deny anyone the truth, as if I am involved in a lie. I take personal offence at that, and I ask the member to withdraw.

The CHAIRPERSON (Ann Hartley): The member is right, and he has taken offence at the comment. I ask the member to withdraw.

Speaking to the point of order, I appreciate that—

The CHAIRPERSON (Ann Hartley): I have ruled on the point of order.

I withdraw and apologise.

💬 Hon Richard Prebble: I raise a point of order, Madam Chairperson. Perhaps I should have risen earlier, but I expected you to appreciate that to say that someone is trying to deny the truth of something is not to accuse that person of being a liar. In fact, the rule cannot be that any member of Parliament can interrupt debate just by deciding that that person does not happen to like vigorous discussion. I say to you that you are setting a very bad precedent. I realise that the Speaker made a ruling yesterday, which I think he now regrets, but that is not in the rulings, and I suggest that you consult with the Clerk, and get on with the matter. Otherwise, we will find that this debate will not be a robust exchange of views; it will be just a series of points of order breaking up speeches. I think the member ought to be allowed to start again.

The CHAIRPERSON (Ann Hartley): The member certainly does make a valid point, but what I counsel members against is making imputations against other members. The member certainly did take offence at that. But the Hon Richard Prebble does make a point about robust debate.

💬 Gerry Brownlee: I raise a point of order, Madam Chairperson. Do I take it that what you have just said is another ruling?

The CHAIRPERSON (Ann Hartley): No.

💬 Gerry Brownlee: Well, I ask you whether it means we cannot have robust debate. Does it mean that if the reality is that the truth, as one party might see it, is being put in a way quite contrary to the way it is being put by another party, we are not able to suggest that is what is happening? Everybody knows—and Dr Cullen has alluded to the fact that editorials and other articles in the papers have attested to this fact—that New Zealand First has been intrinsically involved in the development of the amendment bill that we now see before us, and that Mr Jones himself has been very instrumental in putting together a number of the clauses here. In fact, yesterday I overheard the Deputy Prime Minister congratulating Mr Jones on the fine work he had done on this bill.

The CHAIRPERSON (Ann Hartley): The member has made his point. I say to members that casting aspersions and attacking the member, as against the point of view, is what this is about, and the member has clearly said he took offence. That is the end of the matter.

When a Supplementary Order Paper of 67 pages, an amendment bill, is denied to the public until the beginning of the debate, how are members to know the truth of the contents of the material? They have almost no time to read it, and that is the point I was making.

The Government claims that new clause 2A will protect the Crown ownership of the foreshore and seabed. Then it goes on to state: “including the protection of the association of whānau, hapū, and iwi with areas of the public foreshore and seabed.” What the Government is doing here is clearly preferring Māori above all other members of the community. The Minister in the chair, Michael Cullen, might deny it, but that is what clause 2A actually states. Clause 2A, for the benefit of Government members, sets out the object of the bill itself. So it is very, very clear that we have two classes of citizenship. Māori are in a preferred position. That is why the clause refers to protection of the association of whānau, hapū, and iwi. I do not believe that those terms are intended to apply to all New Zealanders. Maybe they are—maybe the junior whip will tell us that they are terms for all New Zealanders—but I believe that they are intended for Māori alone. So that is a compromise.

It is a derogation of the general right, and the whole of the rest of the bill is intended to achieve precisely that. I am sure we will see Dail Jones get up and say that it is wonderful that the Auckland regatta is now protected, and that one can apply to the High Court for a customary rights order. Well, I ask Mr Jones whether there actually was a problem. Were the organisers of the regatta seriously troubled that they might not be able to hold the regatta in January 2005—the first time in 165 years that the organisers really feared they would not be able to hold it? We know that that is a nonsense proposition. The reality is that that customary rights order, said by the Deputy Prime Minister and by Mr Dail Jones to be available for the general public, is in fact of no value whatsoever. The only case that is ever mentioned is that of the regatta, which does not need the protection. Frankly, it is a tissue and a fabrication.

On the other hand, Mr Dover Samuels is correct. He says that Māori will get all sorts of rights and protections. Those will be deep, and they will compromise the public interest.

I rise at the beginning of the Committee stage on the Foreshore and Seabed Bill to say to the Committee that I realise I have been here only 26 years, but I have never seen the House doing what we are now doing. We are now debating what is regarded by everyone, I think, as one of the most important pieces of legislation introduced by the Government, and one of the more important pieces of legislation introduced by any Government. It is one of the few pieces of legislation that has caused a by-election, so we can see it is important. This version of the bill was given to the Opposition only yesterday—

💬 Hon Ken Shirley: At 5.30.

—at 5.30 p.m., with the so-called redline amendments that we are now working from, and there is no explanatory note—none whatsoever.

💬 Hon Dr Michael Cullen: There is on the Supplementary Order Paper. Look at the back.

The Minister says so, but perhaps he can refer me to the explanatory note on new clause 2A, because when I read it, I say to the Committee that it is incomprehensible. I realise I am just a mere lawyer, but I do not understand what on earth it means. It 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 people of New Zealand,”. I think I understand that. But then it states: “including the protection of the association of whānau, hapū, and iwi with areas of the public foreshore and seabed.” What does that mean?

💬 Hon Ken Shirley: Gobbledygook.

Perhaps it is gobbledygook. What it appears to me to state is that we are protecting the whole of the foreshore but we are also protecting it all for Māori. Those two statements are in contradiction. A court is supposed to know what that means. I say to the Minister in the chair, Michael Cullen, that perhaps it is just flannel. I once said to Geoffrey Palmer, when he said to me “It’s just window dressing”, that the problem with window dressing is that a court will give it a meaning.

It appears to me to be racist legislation. The Government is saying that “all New Zealanders” and “whānau, hapū, and iwi” are different. That is what that clause states. I would have said that “all New Zealanders” includes both Māori and non-Māori, but not this Government. That is the heart of the problem in the bill. It is deeply racist legislation. I say to the Minister again that the ACT party would have left the matter to the courts. We have said that consistently. We are a party that believes in the rule of law and I took great exception, although I did not raise a point of order, to the member saying that we protect non-Māori property rights only. This party is in favour of property rights, and we accept that there are some parts of New Zealand—not many, but some—where Māori do have property rights on the foreshore. The ACT party stands for that. We do not get upset about that, because they have had them since 1840 and it has not caused any trouble up until now, and we would not have panicked. We would have said that they should go ahead with court cases. Let me make that clear.

I object very strongly to Parliament passing provisions like clause 2A that no member opposite can explain. We tried to be parliamentarians. We said to the Minister that he could have unlimited time to explain the bill—a gift that most parliamentarians would accept. What did Dr Cullen do? He said no. He was the first person to say no, and that was because he is not a fool. He realises that he cannot explain clause 2A. But on the face of it, it is a deeply racist provision, because it states that there will be protection on behalf of all people and then states that Māori are not all people—they are somehow different. I say to the Minister that “all people” ought to mean both Māori and non-Māori, but that is not so under this deeply racist Government. As a parliamentarian, I am appalled that we should be considering legislation like this.

The CHAIRPERSON (Ann Hartley): The member will be seated. He cannot say that.

I most certainly can!

The CHAIRPERSON (Ann Hartley): The member knows that under the Speaker’s ruling by Doug Kidd, he certainly cannot call the Government or a member “racist”.

I withdraw saying that the Government is racist. This is deeply racist legislation, introduced by members who, apparently, are not racist. It has been introduced by members who say they would never be racist, but it is deeply racist. We know it is. It is apartheid legislation.

There is no surprise in new clause 2A for those who understand the principles on which the bill comes about. There is no surprise in it for those who have read any part of the Ngāti Apa Court of Appeal decision. There is no surprise in it for those who have read anything about Mabo or the international law on aboriginal rights. There is no surprise in it for anybody who has read the Treaty of Waitangi. There is no surprise in it for anybody who understands the common law principles on which the House is built. The only surprise in clause 2A is that those who use the term racist to describe the legislation have that word in the forefront of their imagination.

The bill will “preserve the public foreshore and seabed in perpetuity as the common heritage of all New Zealanders”, and that is the position that has prevailed in New Zealand for 160 years and that has been assumed by everybody to be the actuality. The Court of Appeal pointed out that riding upon that also, as a burden on the Crown’s radical title, is an obligation by the Crown to recognise the aboriginal title that the common law recognised, whereby indigenous people had rights until they were clearly taken away by statute.

New clause 2A does precisely that. The object is to preserve the public foreshore and seabed in perpetuity as the common heritage of all New Zealanders, but it includes the burden that has always been on the Crown, for the common law right of aboriginal title. To describe that as racist legislation is to describe a skateboard as a motorcycle. The House deals with the facts, and the Opposition appears to be trivialising the matter, because it is not prepared to recognise the intelligence and principled nature of this bill. The clause includes the protection of the association of whānau, hapū, and iwi with areas of the public foreshore and seabed. That simply means that hapū, whānau, and iwi who have customary relationships that have continued since the assumption of sovereignty in 1840 can be recognised, and will be recognised, under this bill. There is nothing new about that, nothing radical about that, and nothing racist about that. But, of course, one cannot read clause 2A in isolation.

💬 Hon Richard Prebble: Why not?

The purposes clause elaborates on that. It is very convenient for Mr Prebble not to have read as far as clause 3, “Purposes”. The bill has been around only since July! It may not be an illustrated version—

💬 Hon Dr Nick Smith: How long has clause 3 been around?

About 140 years, if one reads the common law and reads about Ngāti Apa. It has been here for a long, long time; since the signing of the treaty, in fact. If one bothered to read the treaty and recognised that it was bringing into this country the common law of England, then one would not be asking that question. One would not be thinking in terms of “racist”. One would be saying that clause 2A is self-evident and not even worthy of debate, because it is a simple fact on which this country is built, a simple fact on which this Parliament is run, and a simple fact that all people in this country, be they Māori, Pākehā, or more recent immigrants, are prepared to concede, when one talks to them out in the street. If the member interviews his mirror, he may see a different picture.

Clause 3 vests the full legal and beneficial ownership of the public foreshore and seabed in the Crown. That is the clause that the Court of Appeal required to be stated clearly so that the assumption of sovereignty and the Acts of this Parliament could express that principle. Then it gives rise to the burden, which is then dealt with in paragraphs (b), (c), and (d) of clause 3. It follows, as night follows day, that if we recognise that this country is founded on the common law—the treaty recognises those common law principles and the right of Parliament to make laws arising therefrom—then any objection one can take to clause 2A is illusory, and brings into intellectual argument what Richard Loe brought to forward play in the All Blacks. This part of the bill really sets the parameters for the rest of the understanding. We will have an interesting debate over the next few hours if clause 2A causes as much difficulty, to those who consider themselves worthy to take part in this debate.

We move on to clause 4, “Interpretation”, but nobody from the Opposition has bothered to mention it. Interpretations are fine—

💬 Gerry Brownlee: It’s early days yet!

It has been around since July. Mr Brownlee should have gone to the Fisheries and Other Sea-related Legislation Committee and would have heard the submissions on the clause.

💬 Simon Power: I raise a point of order, Madam Chairperson. The Standing Orders and Speakers’ Rulings state that members should not refer to anyone’s absence from the House or a select committee. Mr Fairbrother made a direct reference, and you did not pull him up.

I was saying what he would have heard in the select committee. Whether he was there, I do not know—[Interruption]

The CHAIRPERSON (Ann Hartley): I give Mr Power one warning. When I am on my feet making a ruling, I do not expect comment. I was about to rule in his favour. He is right; the same rules apply to the select committee and the House. I give all members another warning: when I am ruling on a point of order, or when a member is speaking to a point of order, there will be silence.

As my colleague has already pointed out in this debate, Part 1 is racist legislation. But it is not only racist, it is actually socialist, as well. It is actually racist and socialist. Those members do not mind me calling them socialists—they actually smile and rejoice as I call them socialists. I am not allowed to call them racist, we have established that, but this Government is bringing both racist and socialist legislation to this Committee, and I will explain why.

This part essentially takes away the right of a group of New Zealanders even to pursue a possible property right through the courts. It takes away the right, and strips them of due process. The ACT party defends all property rights, and we say that if there are parts of New Zealand where people can establish that they hold a customary title, then those people should have the right to pursue that. The point has been made that if they have held it since 1840 and there has not been any problem, then what should we be fearful of. How can they answer that question?

On the one hand this part strips away the rights of some people to pursue that property right, but on the other hand it actually creates a tool that is very fearsome. Dr McHugh, who was a key adviser to the Fisheries and Other Sea-related Legislation Committee, made the point that this bill actually gives a lot more to Māori than they would have likely got through the courts. It creates a whole new regime across all the foreshore and seabed that is not confined to any basis of property right, but which is race-based law. On the basis of skin colour, or ethnicity, a group of New Zealanders will have rights, through the Resource Management Act, to wield powers and controls through the back-door, as already we see with land under the Resource Management Act, now extended over the whole of the foreshore and seabed.

To that extent this is lose-lose legislation. It breaches due process. It denies iwi the rights to pursue whether they do hold property rights. That is all the Court of Appeal said in the Ngāti Apa case. It said that in some rare and remote instances it may be that they can establish customary title based on having held that land continuously—no more and no less than that. McHugh emphasised that point. He predicted it would be extremely rare. He doubted whether there would be even one or two instances in the country where the High Court would uphold that. But this Government panicked because it was looking at the politics of it, not the substance of it.

There is the Deputy Prime Minister, with hands clenched behind his head. He knows that he has the tiger by the tail. He is digging himself deeper and deeper. He knows that he has messed it up. Rather than front up to the country and admit that the Government went down the wrong path, the Government is trying to ram it through under urgency and impose this racist and socialist legislation on the whole country.

The socialists just love it. Here is a way for the Crown to have everything. They would like the Crown to own all the land as well, not just all the sea. I have a colleague out on the highways and byways of New Zealand who is fighting this Government, because it is trying to find a back-door way to take over all farmers’ land, calling it access, and taking away property rights on the land. Here we see the Government stripping away potential property rights on the one hand, and then creating a new regime that we should all be fearful of, and that is this amendment to the Resource Management Act. That is essentially what it is. We are calling it the Foreshore and Seabed Bill. It is actually the “Resource Management Act Amendment (Foreshore and Seabed) Bill.” That is what we should be concentrating on because this mechanism is a disaster.

There are expanded powers on the foreshore and seabed, in a nebulous form. Spiritualism has been introduced into the management of the foreshore and seabed. There will be taniwha running along the beach in all directions—and who will control it? The Department of Conservation will. We will have all that extra foreshore and seabed, all reclamations, with that wonderful, balanced Department of Conservation controlling it! Can members imagine any developer, anyone with a proposal, whether it be for a marina or whatever, going to the Department of Conservation and getting a fair hearing?

I want to speak entirely on clause 2A, which, of course, is the object clause of the bill, and therefore is an overarching clause that is reflected right through the rest of the text of the bill.

On 18 August 2003 our Prime Minister, Helen Clark, was interviewed on the Holmes show. On that evening she announced to the nation that the Government’s proposal was to put the foreshore and seabed into “public domain”, so that no one would own it. Paul Holmes then asked her: “Why on earth are you doing that? Why don’t you just do the straightforward thing and put the ownership of those assets with the Crown?”. I found the Prime Minister’s response on that evening very, very interesting indeed. She said: “Well, Paul, you know that if I were to do that, then from a Māori perspective they would have lost and the Crown would have won.” She made it quite clear, therefore, that the concept of public domain was an attempt to seek a kind of a neutral position in the hope that both the Crown and Māori, who are the two partners to the treaty, would be able to come to some common understanding and say: “Yes, we together can go forward on this issue as a nation.”

I say to Dover Samuels that I too grew up on the beach. I walked on the beach, used the beach, swam in the water, took mussels from the water, ate them on the beach, and so forth for all of my boyhood. I frazzled my fair skin almost to obliteration in the process, but I say, as I think any New Zealander would, that each of us desires to have full, unfettered access to the beach. The bill achieves that but I do, more in sorrow than in anger, regret the fact that the Government lost its nerve and moved away from the concept of public domain. I thought it was a very useful concept. I think it could have contributed very positively to this debate and helped us to find a way forward.

This is the way that I would have worded clause 2A: “The object of this Act is to provide for the guardianship”—and I use the word “guardianship”, of course, because that term will resonate with the concept of kaitiakitanga—“of the public seabed and foreshore, in perpetuity, as the common heritage of all New Zealanders, for themselves and all future generations, by vesting in the public domain the public foreshore and seabed, and recognising as appropriate the association of whānau, hapū and iwi with the areas of the public foreshore and seabed.”

United Future really does regret that the concept of public domain was ditched so quickly, after the good start the Prime Minister and the Government made, in favour of going back to Crown ownership. I think it will, therefore, continue to be viewed by Māori as a win for the Crown and a loss for them. That is because, of course, for generations now Māori have regarded the word “Crown” as symbolising not the people of New Zealand but the sovereign of the United Kingdom. We see in treaty settlements, for example, the Crown even apologising for the confiscation of land and so forth. So that is embedded in Māori thinking, and rightly and understandably so. I regret very much that the Government so quickly gave away the concept of public domain.

My colleague Larry Baldock told me there would have been some legal difficulties. OK, there might have been, but the bottom line is that where there is a will there is also a way. I think that if the will had been there in the Government to stick with that concept, a way could have been found to express the concept that is involved in the term “public domain”. One has only to look at, say, the Auckland Domain or, down the road from where I grew up, to the Mapua Domain, to know that all New Zealanders understand that a public domain is something that all of us own, that all of us have access to, and that all of us enjoy egress from and travel across. It is something we can all use for recreation; to carry out our swimming, our fishing, our sandcastle building, and all the other activities that all New Zealanders associate with the beach and with the foreshore and, of course, the seabed itself as we go out and fish and enjoy other activities of that kind.

Really, if that had been changed, then, of course, all of the rest of the bill would be changed. When we read the bill now, it is like a tattoo: a repetition of the word “Crown”.

It has been very interesting listening to the claptrap coming from the other side of the Chamber. I would have thought that Opposition members would realise that this is an important issue, and they would put a bit of intellectual horsepower into it, but I guess when one’s leader is in the deep freeze, it is very difficult to defrost him overnight and have him take part in the debate. We have heard all the kōrero from the members of the National Party who are members of the Fisheries and Other Sea-related Legislation Committee. We have heard them all blah-blahing about not receiving the Supplementary Order Paper at the appropriate time. I just want to say that they began playing games in terms of the process of reporting back to the House. They are the architects of their own destiny, yet yesterday we heard enough whingeing and whining because they did not get the Supplementary Order Paper in time. I say to them: “You play your games and that is what you get.” It is called cause and effect.

💬 Hon Dr Nick Smith: Outrageous.

I know that Nick Smith does not understand what cause and effect is all about. He may have to go to court to find out. But, anyway, I just want to say that I am interested in the comments about racism that are coming from Richard Prebble and the ACT party. They have been talking about how racist this legislation is. I am reminded of the debate we had here in this House, relating to Māori reserve land. ACT members opposed the legislation because they thought it was racist, because the rights of Māori, in their view, overrode the rights of their farmer mates, so they organised a hīkoi of tractors down to Parliament. They did not think about racism then. They did not call the legislation racist. In fact, they actually promoted it. Is it not a bit—I will not say that word, because I know it is unparliamentary. But is it not speaking with forked tongue to call this piece of legislation racist? All of a sudden they suffer from some sort of amnesia about their position in terms of their performance during the debate on Māori reserve lands.

Let me say that I am very clear on the objects of this legislation. All Māori are clear on the objects of this legislation. I say again that in all my lifetime and the lifetime of my tipuna, my kaumātua, my grandparents, my great grandparents, we lived beside the sea. Their whole being, their wairua was part and parcel of the takutai moana, foreshore and seabed. There has never been any recognition in law, at all, over that period of time of the rights of my people. I want to reiterate that, time and time again, because somehow, somewhere there is a blockage in some people’s thoughts and interpretation of this matter.

For the first time in the history of this nation there will be some recognition in statute. It is not all that we wanted and not all we fought for, but at least, at this particular time in the history of this nation, this Parliament, this Government will recognise the tangata whenua, Māori, the indigenous people of this country. It is consistent with the world view. It is consistent with international covenants that in fact the customary activities of the indigenous people of this country are recognised.

I do not know how much more clearly it can be spelt out in terms of the objectives. The objectives quite clearly reconfirm what has already, in the last 150 years, been the understanding of all New Zealanders, including Māori. We never saw a hīkoi 20 or 30 years ago in relation to some people’s warped understanding that Māori own all the foreshore and seabed out to Hawaiki nui, Rapanui, and out to the Cook Islands and everywhere. Those are some of the untruths that have been permeated throughout the Māori community.

I say to members that if the other party—the under-party, the Green Party—can deliver the foreshore and seabed into the ownership of Māoridom, then its members should put their signatures on the line. They know very well that they were not able to deliver. They know very well that they cannot deliver, and they know very well that the only party in this Parliament that will deliver is the Labour Party, with the assistance of New Zealand First.

I raise a point of order, Madam Chairperson. I did not interrupt the previous speaker, because I do not believe in raising points of order to break up people’s speeches, but I do think we now need a consistent ruling from the Chair. Earlier, a National member suggested that the Government had not told the full truth about the bill, and his speech was broken up. He was required to withdraw his statement, which I would have said was parliamentary, but the previous speaker was allowed to say that I had given a forked-tongue speech. Everybody knows that speaking with a forked tongue is saying that a person is lying. I would have said that that was an outrageous statement and was out of order. I drew the matter to your attention, Madam Chair, but you did nothing. I decided that perhaps we were having another think about this matter and we would have a vigorous debate. However, I would not want us to have a situation whereby people can say whatever they like, while the Chair waits for members of the Committee to establish order. Left to myself, I am in favour of a vigorous debate. I have to say that although I was not greatly upset by the speaker’s comments, I think we need some consistent rules during the debate. When you have ruled on this, Madam Chair, I want to raise a different point of order.

I thank the member for his point of order but just remind him that it was not the same as the one ruled on previously. However, the member is correct. I did not quite hear the context, and that is why I discussed it with the Clerk at the Table. We clarified that what Mr Prebble said about the use of the term “forked tongue” was absolutely correct. It is after the event, and I know that the member would prefer that the debate was more robust, but it is quite clear now we have discussed the context that the matter should be ruled on and that the member be required to withdraw his remark. I ask him to stand and withdraw the remark.

💬 Hon Dover Samuels: I withdraw and apologise.

I raise a point of order, Madam Chairperson. Having broken up the debate, it seems to me to be an appropriate time to raise this matter, which I want to do very early with the Chair. As I mentioned in my own contribution, I have never seen a Government introduce what is actually a completely new bill, with no explanatory note, as this Government has done, and then put it into urgency. I want to suggest to you, and have it discussed with the other Chairpersons, that the appropriate response from the chairmanship to such a ruling is to allow proper and adequate debate.

I also draw it to your attention, Madam Chairperson, that on this bill there was no clause by clause analysis by the select committee. Again, when I was first a member of Parliament we would have taken this bill clause by clause, which would probably have taken a couple of weeks. All I am saying to you, Madam Chair, is that I notice that the Committee has not even managed to get past proposed new clause 2A, because we do not have an explanatory note, and I hope that adequate time will be given. Following the usual rules, I will get one contribution on one clause—and I was actually criticised because I had not got on to talking about clause 3. I am happy to give the Committee my views on clause 3, but I can do so only if the Chair takes that into account when the inevitable closure motions come. I just raise this matter now so that you can consider it.

I thank the member for his contribution. I assure him that this has been discussed and that there will be plenty of time for debate.

The Green Party has a number of amendments to Part 1. The first one I want to talk about proposes to omit new clauses 2A and 3 from Supplementary Order Paper 302. This legislation is racist. I know that is uncomfortable for people to hear; none the less, it is the truth. If there is one thing about the whole process of the foreshore and seabed it is that the truth, the facts, have been continually denied and fallacies put in their place. There has been purposeful deception of the community and the public, which is not the way any good Government, in any circumstances, can be expected to behave and proceed in a democracy.

One of the fallacies that have been relied on by this Government and New Zealand First is set out very clearly in new clause 2A. There is a fundamental flaw in its reasoning. I will read out this clause for those who may not have had the opportunity to read it: “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”—and here is the problem—“the protection of the association of whānau, hapū, and iwi with areas of the public foreshore and seabed.”

The Ngāti Apa Court of Appeal decision last year clearly dispelled the myth that the Crown has absolute ownership of the foreshore and seabed. There is no such thing as public foreshore and seabed—it is a myth, a deception, that is being used to drum up support from the public, who do not have the full information about the nature of the law and of the common law rights that Māori have had before and since 1840 and that are actually still extant. They may still exist, and they are due to be explored in law, and rightfully so. The fallacy that the foreshore and seabed are owned by the Crown has been continually challenged by Māori for well over 100 years in all the various forums we have had available to us. We have been pursuing those interests continually—hence, the Ngāti Apa decision.

Jim Evans, a highly esteemed legal professor from Auckland University law school, has also clearly articulated that the Crown must first acknowledge that it and the public have been operating on a false premise. Just because one thinks the foreshore and seabed are in Crown ownership does not make them in Crown ownership. Just because one wants them to be so does not make them so. One has to deal first with the actual realities and truths of the situation, which is that the customary rights to the foreshore and seabed have not necessarily been extinguished. Māori customary rights may still be extant, and they are entitled to be explored in law. The underlying title is still up for discussion and negotiation in the courts. Those rights may still continue to exist, and all citizens of our country are entitled to explore fully their rights in the courts. Māori are citizens of this country, too, and they are entitled to explore the full extent of their rights in law in the courts. Yet this Government, operating on the false premise, on the fallacy, that the customary rights to the foreshore and seabed have been extinguished are denying Māori the opportunity to go to the courts, as other citizens are entitled to do, to explore their full rights.

New clause 2A makes this false presumption that there is such a thing as a public foreshore and seabed, but, as I have said, Māori still have unexplored rights in that foreshore and seabed. Therefore, it is not public. The underlying title is still in dispute. It is a deception; it is a redefinition of those areas in order to extinguish Māori rights and to confiscate those areas where the courts may find customary rights are still in existence.

Our amendment to omit clauses 2A and 3 on the Supplementary Order Paper is an attempt to eliminate the fallacies that the Government and New Zealand First are operating on and restore some status of truth to the situation, so that at least members of the public clearly understand what is going on for them. One of the other amendments we have proposed is to omit clause 3, which vests the full ownership of the foreshore and seabed to the Crown, making what has been untrue to this point legally true but morally wrong—ethically wrong. It is an unnecessary clause. There is no need for Crown ownership to be vested in this full way in the bill.

Other options have been proposed by submitters and various people since this issue has come up for discussion. Those options include allowing Māori to proceed to the courts to have their rights explored, like other citizens are entitled to do. That exploration would not be confined only to the legal principles from overseas jurisdictions like Canada and Australia. In fact, those explorations would occur within the treaty jurisprudence that has already been developed in this country over the last 30 or 40 years. We have a different situation here. Government members continue to argue that this bill will give Māori more than what they would get in the courts.

After that legal dissertation I want to say that I am going to organise a lunchtime meeting between “Tariana Turei”—[Interruption]

The CHAIRPERSON (Ann Hartley): I am sorry to interrupt the member but Mr Brownlee will not contest rulings like that.

Particularly when I am his senior.

💬 Metiria Turei: I raise a point of order, Madam Chairperson. I suspect that the member may have been referring to me; if so, he mispronounced my name completely. I ask that he pronounce my name properly.

The CHAIRPERSON (Ann Hartley): It is always best to—

Who cares!

The CHAIRPERSON (Ann Hartley): No, for order in the Chamber members should always be referred to by their correct name.

Madam Chairperson, I have had three interruptions before I have even got going. Can I start now?

The CHAIRPERSON (Ann Hartley): It is not off the member’s time.

💬 Gerry Brownlee: I raise a point of order, Mr Chairperson. We have been repeatedly assured that there will be a significant amount of time for debate. The expectation is that a number of members will take more than one call on this debate. That matter has been discussed, as you are aware. Can I ask whether it is correct that this is the second call from New Zealand First. I understood that Dail Jones spoke.

The CHAIRPERSON (Ann Hartley): To interrupt a member’s speech for that point of order, when the member had already been corrected by the Clerk—

💬 Gerry Brownlee: Not on that point.

The CHAIRPERSON (Ann Hartley): I have already warned members this morning that when I am on my feet giving a ruling, there will be silence. I now give another warning on that. I have already indicated quite clearly, when ruling on Mr Prebble’s point of order—and I assure the member as I assured Mr Prebble when we discussed this—that plenty of time will be given.

This is the first contribution from New Zealand First in this debate. We want to bring some sanity to this side of the Chamber. I am offering to organise, at lunchtime today, a meeting between Tariana Turia, Metiria Turei of the Greens, and the National Party. It is a very important meeting that I have to organise, and I will tell members why. It is because the first two say that Māori are getting nothing, and the National members on my right say they are getting everything. So I am going to organise this public meeting in the Beehive so that they can sort this out then come back to the Chamber this afternoon and talk some sense for the first time. I have never heard such a ridiculous debate.

The second point I want to signal is that I want to know from Dr Cullen where his secret bill is—the covert, clandestine bill that the National Party keeps addressing. We have never seen it. It may exist. It may be somewhere out there in the ether. After hearing National members talk last night and today, I know that there has to be another bill. It is not this one. There has to be a secret bill somewhere else that Dr Mapp keeps addressing. He said that Māori can get all these things by private arrangement and by private deal, but he never admitted that they could not get a thing under this bill in the way that he described. It is not that Māori are not going to get a fair go, but he knows demonstrably, because he is a law lecturer, that they cannot get the things that he is talking about under this legislation. So why on earth does he keep on saying it? Why on earth do the Greens act that way? Why does Tariana Turia keep making those speeches? Why is the National Party doing the same at the other extreme? I hate to say it, but I think it is about politics. I think it is about raw, venal, selfish politics. At a time when the country calls out for a sense of unity on an important matter, all they can do is play petty, shallow politics. Would they do us a favour—

💬 Hon Dr Nick Smith: Here’s the expert.

The expert is Dr Nick Smith. He is a real expert. Do members remember when he was head of the Department of Conservation? He was up there taking land off Māori everywhere.

💬 Hon Dr Nick Smith: Name one.

Rawhiti 2B. These members know full well about the prime paradise of Ngāti Wai on the southern reaches of the Bay of Islands, and he was going to take the whole lot off them. He said: “Look, I’ll give you a deal. I’ll look after the possums and the pests, but you give me the land.” That was his idea of a deal. Every fifth acre there would be worth $1 million, and there are thousands of acres, and he wanted to take the whole lot on behalf of the socialist State that he was then the head of. Talk about—I cannot use the word, but it starts with “h”. Where did this mess start? It started with an Act passed by those geniuses after they had thrown me out of the National Party, between 1991 and 1993. I remember it. I warned them about their stupidity, but, no, they knew better. They gave Doug Graham a knighthood for it. They all signed up and said: “Yes, Doug, yes, Doug, three bags full.” Yet here they come today, as some sort of Pontius Pilate, saying “We come with clean hands.”

I am glad that people are not hearing that from New Zealand First. I am glad that they are not hearing that shallowness and banality from New Zealand First. Can I ask the Committee a question? Why would a party that calls itself conservative oppose the Crown having the foreshore and seabed reposed unto it?

Why would a party that says it believes in one law for everyone oppose this bill?

💬 Hon Dr Nick Smith: Because it doesn’t have one law for everyone.

There we go. Here is the genius on law. He is so good on law that he was recently in court and he got done over like a dinner, yet he still thinks he is right. The poor guy was told by his colleagues: “Dr Smith, don’t say that. It’s illegal. Don’t do it.” But, no, he knew better.

💬 Hon Dr Nick Smith: That’s not true. He’s making it up.

No, I am not. The member’s colleagues told me.

This bill is racist. This bill is flawed. The tragedy is that for all those in this Chamber who claim to care about our 18,000 kilometres of coastline and beaches, this is a bill about politics, not a bill about doing the very best for the management of our coast. I want to start by quoting from a former Labour Prime Minister whose words Margaret Wilson likes to regularly trot out. He said this: “The Labour Party opposes the approach that laws are introduced one day and passed the next.” That is what Geoffrey Palmer said. But this is even worse. The Government is introducing and passing a law on exactly the same day. These 135 pages of law were tabled only last night. It is a disgrace that the New Zealand media are not exposing the Government for that sort of abuse of this Parliament. It is an abuse because of what we see in this bill.

Dover Samuels said earlier that it is OK for the Government to pass 135 pages of law without it ever being debated, without it being tabled in the House, and without it being distributed to local government and any of the groups that have a substantive interest. He says that that is somehow OK because people have opposed it. He says: “Oh, National members on the select committee expressed the opposite view.” So somehow he thinks that makes it OK to abuse Parliament. The member is wrong.

This part introduces a concept of foreshore and seabed reserves. We have never heard of them before. The concept was introduced only yesterday. I have some questions for the Minister in the chair, Margaret Wilson. Can there be marine reserves over the top of areas that are foreshore and seabed reserves? Does the Minister know? I will ask Dover Samuels. I ask any member of the Labour Party to answer this question: can there be a marine reserve and a foreshore and seabed reserve in the same area? It is an important question. Can Winston Peters tell me? Nobody knows! Here we are being asked to pass legislation to create a new form of reserve—

💬 Rt Hon Winston Peters: Of course not, you fool.

Sorry?

💬 Rt Hon Winston Peters: Of course not. You’re an idiot.

Where does it say that there cannot be a foreshore and seabed reserve where one of our 14 reserves has been created? Can the member answer this question: can there be a mātaitai reserve in the same area that there is a foreshore and seabed reserve? What does Dover Samuels say?

💬 Hon Dover Samuels: We can reserve a plot just for that member.

I asked a serious question. The Minister in the chair has given lectures about unbridled power and about Parliament introducing and passing bills on the same day. That is what she said at the election. What does she do in Parliament? She has not taken a single call to explain any of the 135 pages of law that is being rammed through this Parliament under urgency. Can somebody answer me as to whether there can be an aquaculture management area in the same area in which a foreshore and seabed reserve has been created? Dail Jones says that he has been involved in this bill’s drafting. Can he answer that question? No, he cannot. Can Mr Fairbrother?

💬 Russell Fairbrother: Clause 28 is your answer.

He says it is explained in clause 28. Clause 28 does not exclude any area from being a foreshore and seabed reserve. My point is that this bill will make a diabolical mess of the management of the most precious areas of New Zealand. This is not a sensible way of managing these areas. This bill is solely political. I ask members opposite how they can sign up to this. When they were in Opposition I often heard their bleating about bills being passed under urgency—bills that had been around for weeks or months. Now we have 135 pages of law that was tabled only last night being rammed through Parliament. The Minister in the chair has the cheek to say to the deputy leader of the National Party that he might not understand it all. That is not surprising.

I have been moved to rise by the previous speaker’s statements that this bill is racist. Let me remind this House that as a Minister that member, Nick Smith, took an action against Wakapuaka reserve, which already had an existing blue-water title that had been enshrined by the Māori Land Court a number of times and which enabled the Ngāti Tama people of that area to get on with their business as the tangata whenua. Oh no! He prefers to lead a charge, which I shall call racist, amongst the community of Nelson against the inherent tangata whenua rights of the Ngāti Tama people, which were enshrined in law, on the basis that they somehow exclude access to their estuary.

This is private Māori land, and the estuary has a blue-water title. The only reason that Ngāti Tama—and I hope Dr Mitchell is listening to this—has put a gate across the access is to ensure that people who want to visit treat the estuary and the foreshore and seabed with respect. It is there so that people do not drive their four-wheel drive vehicles up and down, unfettered, and leave their rubbish around this estuary that has a blue-water title that is in the ownership of Ngāti Tama ki Wakapuaka. The member wonders why, under clause 2A, we have included the statement “including the protection of the association of whānau, hapū, and iwi with areas of the public foreshore and seabed.” One of the reasons that is included is that misguided influence and ministerial authority leave those tangata whenua in a difficult position. That case is still before the courts.

💬 Hon Dr Nick Smith: Because your Government is appealing it.

So what do the people do? Because he was the Minister of Conservation. So not only he suffered, but so did a certain section of tangata whenua ki Te Tau Ihu o te Waka. I am appalled that some members of the Opposition who are not supporting this bill view clause 2A as being deeply racist. I am absolutely appalled that we started the discussion this morning on that level. It demonstrates for us that there is nothing to fear about this. Māori have for many, many years insisted on a right, as Māori, so that they can protect themselves—

💬 Hon Dr Nick Smith: A special right.

So that they can protect themselves, I say to Mr Smith, into the future from the misguided views and visions of people of his ilk. One submitter from Nelson came to a submission hearing we had in Christchurch. I must endorse her courage. She stayed, even though her message was obviously totally unpopular, given the context. She was carrying a message that was very similar to the messages we are hearing this morning about this law being deeply racist. She appended that with her experience of Wakapuaka. How can this law be deeply racist? I fail to understand that when we are discussing whether Māori—whānau, hapū, and iwi—can be included in clause 2A. To exclude that is racist. So what National left in its wake is a diabolical mess.

It is not surprising that when the Hon Nick Smith, a former Minister of Conservation, leaps to his feet to give his first speech in this debate, the first question out of his mouth is: “What about marine reserves?”. It seems that whenever people get anywhere near the Department of Conservation, they start thinking about grab, grab, grabbing marine reserves and more estate for the department from all around the country. So that was the first question out of his mouth.

The answer to his question, from my reading of the bill, is that it would probably be up to the guardians of the new reserves to determine whether there would be marine reserves within the new reserves. I think that is a jolly good idea. A lot of New Zealanders would like to see more control over their inshore area, rather than see the Department of Conservation slapping marine reserves all over the place, wherever it thinks it can protect this wonderful environment. So I do not see that it is a bad thing at all that this bill gives more control back to the people of New Zealand.

In fact, that is largely what clause 2A is all about. United Future welcomes the amendment from the Deputy Prime Minister to introduce clause 2A, “Object”, which 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,”. We could almost have taken that statement and put it under the interpretation clause, clause 4, with the heading “Public domain”. I think it is a pretty good definition of the concept of public domain that we were talking about in the very beginning.

So United Future will be supporting this amendment, because we think it goes a long way towards calming the people of New Zealand down about what is going on in this legislation and this debate. It is not just about Crown ownership, as has been claimed by Winston Peters and New Zealand First. I think the definition has broadened out considerably, and that is a good thing. As my colleague Gordon Copeland said earlier, the idea of Crown ownership has carried with it some negative connotations. It is important for us to speak about it being for the benefit of all New Zealanders—the common heritage of all New Zealanders. Those are very good words.

The amendment further provides that the object of the bill is to protect or preserve the foreshore and seabed in perpetuity, which is why I have tabled this morning an amendment to entrench clause 12(2)(a), when we come to debate Part 2 later on, so that this Parliament does all we can to make sure that it is very difficult for any future Parliament to sell off or transfer the title of the foreshore and seabed to anybody else. It will be held in perpetuity as the common heritage of all New Zealanders. I think that will be a very, very good thing. I will be asking all the parties in the Committee to support that Supplementary Order Paper when we vote on Part 2 later on.

Clause 2A also includes the concept that the Crown is to protect the public foreshore. Crown ownership is for the protection of the public foreshore on behalf of all New Zealanders. I think it is time to begin to discuss that in our debate. There is not enough going on to protect the foreshore and seabed in New Zealand. We are prepared to march to Wellington about the ownership of it, but the crucial issue is what is going on there. Pollution is still occurring. Siltation is still occurring from run-off from the land. There is pollution in all sorts of forms. Raw sewage is still going into our sea, and siltation occurs every year in the construction season. We create siltation ponds that are not adequately monitored, then when we get a bit of extra rain one summer—as happened this year—the entire Tauranga harbour turns brown because suddenly a huge amount of clay goes into it and destroys that pristine foreshore that we all like to walk on and enjoy. Instead of having sand to walk on, we have mudflats all over the place. It is a disgrace.

Instead of having such a huge fight about the title and the ownership, we should be having a big debate about doing more to protect these areas. Our regional councils are not monitoring those issues, and are not imposing fines on the people who are polluters of the foreshore and seabed area. I hope that when the bill finally becomes law, the Crown will take up its responsibility to do a lot more about protection. Protection is not just about imposing marine reserves, because there is no point in having marine reserves for the protection of our seabed and marine environment if we have pollution flowing off the land. It is even coming out of the Department of Conservation estate, and nothing is being done about it.

I have sought a call although it seems almost superfluous for me to speak in this debate, my having been mentioned so many times in despatches by members all around the Chamber! It has been a great honour to take part in the work on this legislation to ensure the protection of the national interest, and to have the foreshore and seabed in the ownership of all New Zealanders. New Zealand First is prepared to show leadership in this matter among the Opposition, and that is embodied in no better form than that of our leader, the Rt Hon Winston Peters.

I particularly wanted to follow on from Larry Baldock, because of what he said. He referred to the discussions in the Fisheries and Other Sea-related Legislation Committee on, effectively, clause 2A. We in the committee said—and I am sure that Dr Mapp will remember—that we wanted a clause in the bill that would state something along the lines of what is in clause 2A: “The object of this Act is to preserve the public foreshore and seabed in perpetuity as the common heritage of all New Zealanders …”. That was a point we wanted to emphasise. We asked the officials whether they could put something together to reflect that view, as that was what the members of the select committee wanted. When clause 2A came forward I could see exactly what the officials were getting at. It reflects the views and wishes of the select committee as a whole—including, at that time, the National Party members on it. But, of course, National members are always ready to oppose anything, even if they might have supported the concept of common heritage and of having something extra in the purpose clause, which is what clause 2A achieves.

Many people might be interested in what the bill actually says. I know that various Kawau Island groups, including the Kawau Island ratepayers, were concerned—as were others—about, for example, the definition of “foreshore and seabed”. They may not be able to get a copy of the amended bill immediately, but I tell them that we have made an alteration to the meaning of foreshore and seabed. It now: “(a) means the marine area that is bounded,—(i) on the landward side by the line of mean high water springs;”. That is the meaning that is now in the bill. We have removed the reference to “high water line at mean high water spring tides”. As I understand it, some people were concerned that the previous definition effectively took it too far. We now have a more reasonable definition of what the high-water mark is, and what the marine area is on the landward side. On the landward side, it will be bounded by the line of mean high-water springs. People who are interested in the bill should perhaps take more note of that. [Interruption]

Mr Mapp keeps chirping away. I was disappointed that he tried to make a personal reflection on me when he spoke. That was quite unusual for him. He had become quite excited by this legislation, and I regret that I had to raise a point of order on him about it. Obviously, he is concerned that he has been totally unsuccessful on behalf of the people of the North Shore. I can tell him that I am trying to do something about that matter with the Minister now, and there might be some improvement in that area before the day is out. The North Shore City Council did not get hold of New Zealand First to deal with that particular issue, but I think it has realised its mistake, and now we are trying to do something about it. We will see what might happen later on, and whether we can achieve something in the meantime.

There are various new definitions in the bill, such as “guardians” and “kaitiakitanga”. [Interruption] I thank members; I admit to being an absolute novice, but I am prepared to learn, even if Georgina te Heuheu’s National Party members are not prepared to learn about Māori matters. That is why they have dismissed her from the National Party altogether. I, as a member of New Zealand First, a recent immigrant, am prepared to learn about Māori things, even if—

💬 Hon Ken Shirley: What does it mean?

It means guardianship. Mr Shirley does not know what it means, so I will help him. The use of that word is extremely important, because time and time again Māori submitters to the select committee said they wanted to retain guardianship. It really impressed me, and that is why New Zealand First has made sure that any foreshore and seabed reserve is protected by guardians. It is so much common sense, really. It is good to see that New Zealand First has been able to achieve that in the legislation. Simply put, this bill protects—[Interruption] I have to put it simply for some members of the National Party, whom I am always willing to help on this legislation—as I did when it was first introduced.

I start by saying that probably the best proposal put to the Committee this morning was the proposition by the Rt Hon Winston Peters that he convene a meeting at lunchtime today of the Opposition parties, for their benefit, so that they can get their lines right—for that simple reason.

Most of them oppose this bill, but for different reasons. National Party members have described this bill as racist. At the same time, its members on the Fisheries and Other Sea-related Legislation Committee supported Crown ownership. They also acknowledged that Māori had customary rights over the foreshore and seabed. If National members did not have that view, they would never have passed Tainui’s settlement Act and the Ngāi Tahu Claims Settlement Act. Both those Acts refer to the customary rights of those iwi. National Party members also support the concept of public access being protected. Given all of that, and given that they still oppose this bill, one wonders how they determine their position.

I shall also comment on the contribution made by the Hon Richard Prebble earlier today. He referred to the object of the bill as being racist. He read out that clause, and he seemed to have an issue with that two-part statement. The first part of it acknowledges the common heritage of all New Zealanders, and the second part acknowledges the association of whānau, hapū, and iwi with the foreshore and seabed. Which part of that does he consider racist? Is he suggesting that we take out the first part—the common heritage of all New Zealanders? He did not make that very clear. He did not understand the second part, which I find very interesting, given that he belongs to a party that acknowledges property rights. Really, this matter is about Māori property rights, and that is reflected throughout this bill.

I also want to touch on a matter raised by the United Future speaker Gordon Copeland. Obviously, like the Rt Hon Winston Peters, the Hon Dover Samuels, myself, and many other people in this House, he has a strong association with the foreshore. Many of us experienced an upbringing in which we enjoyed the leisure time we spent at the beach. Mr Copeland believes that this bill will stop him from doing all those kinds of things that he has done in his life. That is absolute rubbish. He needs to go back to the bill and read it very, very carefully. He will find that nothing will change following its enactment.

I have tried to get a fix on the Greens’ position. I am afraid I am still trying. It seems they share the view of ACT that the bill is racist, but ACT believes that any acknowledgment of Māori customary rights is racist because they are rights peculiar to Māori. What is racist about that? Those members also believe that the bill threatens the rights of access of the general public. That is also not true. It is stated quite clearly in the purpose clause of the bill that public access is guaranteed. Throughout the select committee hearings process, all the Māori submitters made it very clear that it was not their intention at any time to inhibit public access to the foreshore and seabed.

💬 Dr Wayne Mapp: Actually, that is not true. Margaret Mutu said she should deny access.

I think Mr Mapp is doing Margaret Mutu a disservice. Although she has some very strong views about the bill, one thing she was adamant about was that there was not a threat to public access. Mr Mapp needs to get his statements correct. I recall his misquoting a number of the submitters who came to the select committee, and suggesting that they were threatening the rights of all New Zealanders, when, in fact, all that they were doing was spelling out their rights very clearly to the select committee. Those rights have been taken into consideration. If we had been given the opportunity to report back in the way that we would have liked, with amendments to the bill, those points would have been made very clear in the report. But we were denied that opportunity, and here we are with a very, very lengthy Supplementary Order Paper.

A lot of attention was given throughout the hearings process to Māori development rights. Like many iwi around the country, my people, Mataatua and Te Arawa, have very, very strong links with the foreshore and seabed. We have always been very active in the fishing industry—although this bill is not about fishing or mahinga mātaitai; it is in fact about other areas of customary rights. In particular, my people, Ngāti Whakaue, have an ancestral connection, for want of better words, to a particular area on our coast. We have used that area in the past for commercial gain for the benefit of our people.

That member’s days as the electorate MP for Waiariki are numbered. However, it was good to see him on his feet. I am pleased to rise in the debate on Part 1. I want to make some comments about other comments that have been made by members, particularly members from the Government side of the Chamber. Dover Samuels showed the arrogance of a Labour Government member when he commented about the Opposition “blah-blahing” on about the late introduction of a significant Supplementary Order Paper. It does not matter whether we got Supplementary Order Paper 302 in the name of the Hon Dr Michael Cullen only yesterday; it matters to the New Zealand public that that Supplementary Order Paper was not open for scrutiny by people outside this House. The only reason we are here is to represent the interests of people outside this House, so we need to get it right.

Dr Cullen had a bit of fun, directed at the National Party, when he talked about a brown face on the Opposition side of the House having a part in drafting this law. He and the Māori members on the Government side should get with the plot. It is a brown face that will ensure this legislation passes into law—and no credit goes to that person.

💬 Hon Dover Samuels: Where is the brown face in the National Party?

The brown face I refer to does not sit on the Government side of the House. So, no matter how much the Labour Māori MPs puff out their chests, and pretend that this is their bill and that they have delivered a lot for Māori, it is not a brown face over there on the Government benches that has done that. In fact, it is Mr Peters. If Government members look in the mirror, they will see his image staring back at them. But of course it is no credit to Mr Peters that he has supported this bill. If this bill is good for Māori, why is it that Tariana Turia walked, and why is it that Nanaia Mahuta is still hedging her bets? She voted against the bill in the first reading, and she is still hedging her bets. So Government members should not puff up their chests and say this legislation is great for Māori. In fact, they should not even puff up their chests and say it is great for all New Zealanders, because there are uncertainties in it, and that is where the rub comes.

Dr Cullen also wrongly stated that I have said that Māori are not getting enough. That is not a statement of mine. What I have commented on is that Māori are not getting the thing they wanted the most, which is due process of law and the right of all New Zealanders to go to the courts—and that comes from a Government that for all but 3 of the last 70 years has enjoyed the overwhelming support of Māori, excluding me, of course. I am as keen as anyone to ensure that the rights of all New Zealanders to our foreshore and seabed are protected. Of course, balances have to be found. That is where we come to the object clause, clause 2A, which, on the face of it, sounds good. It states the object 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.”

On the face of it that it sounds good, but when we look into the detail of the bill we see that uncertainties remain. If the Minister in the chair will not clarify some of those uncertainties, then perhaps Winston Peters, who is actually the main person who is getting this bill through Parliament, should be sitting in the chair. The uncertainties are issues like these. When Māori go and get their customary territorial rights, what rights will they actually get? When the Labour Government says to New Zealanders that their rights of public access will be protected, how will those rights be balanced on the ground? How will they be balanced on the ground, when Māori have certain customary rights that will be defined, and then the Government also says public access will be guaranteed?

Whatever Ngāti Wai had 2 years ago they have got today, and they will still have it this Friday when the Foreshore and Seabed Bill is passed. But does anybody remember the surplus land at Paraparaumu Airport, which was taken from the Māori people and then sold under a National Government? Did that Government offer the land back to the Māori people, who had a legal right of first option? No. What did the Government do? It sold the land for a pittance to one of its mates, denying the Māori people everything in that case. [Interruption] The member asks what that has to do with the bill. What it has to do with the bill is that National members should not come and tell us about the National Party’s tutelage in so far as the Māori people are concerned. What has happened up north? All the Poor Knights Islands reserve was taken by a National Government off the Māori people.

💬 Hon Dr Nick Smith: Good reserve.

The member says it is a good reserve. Right now, promoted by him as well, is a proposal for 16 times that area at Mimiwhangata—and he would defend that. That area, which belongs to the Māori people there in terms of ancestral use, he would walk all over. But all of a sudden, the Māori people are meant to find some sanctuary in the National Party!

I remember that in 1993, and this is very apposite to the bill, at 11.30 one day—I was not in the National Party caucus then, but I remember the circumstances very well—in came Bill Birch and Jim Bolger, and they were going to give the Māori wardens in the tribal zones the right of arrest. There was no notice given of that to any other party, or even to the National Party. They were going to hijack the whole organisation. Now, somebody here in the Chamber must remember that. Oh, the National members are very quiet now. So what happened? That night on the Holmes show at 7 o’clock, one National Party guy blew the whole thing wide open. And on the show later that night Jim Bolger came on and said the proposal had been dropped. That is the National Party. Those members rant and rave about Māori getting everything, when their whole background is to have done things for Māori that Māori should not have done for them, and not to do things for Māori that they should have done for them.

I can recall National winding up with $92 million of debt on Māori kiwifruit orchards, and when I said I would sue that Government for a failure to exercise a duty of care, the National members ran around the gallery, saying that I favoured Māoris. I had a whole lot of legal opinions, and I said to Ruth Richardson we would sue that Government for the appalling way it had built that debt up over Māori kiwifruit farms. Did the National members say I was right? Oh, no! Did they say that the legal opinion I had was irrefutable? Oh, no! They just went around and tried to bag me.

💬 Hon Member: What’s that got to do with the bill?

What it has to do with the bill is this. The National members have never understood this bill. They have never understood the select committee process. They have never understood the fundamentals that they claim to preach—one law, and Crown ownership. Oh, yes—and here is the rub. They get up, talk about clause 2A, and want to know why whānau, hapū, and iwi appear in that object clause. Well, that is obvious. It is because Māori have a different perspective from the rest of the country, and it differs iwi by iwi.

💬 Hon Member: It’s not obvious, at all.

That is obvious to anybody who understands Māori. But then again, if one goes to Ōrewa and makes a speech in which one says that Māori have no culture at all, then one will make the kind of fallacious mistake that those members keep on making.

Clause 2A is in the bill because there are some people in this world who recognise that cultures are different in the way that they see things. People from different cultures can operate under the same law, but the standards by which they may approach a problem or an issue could be, in terms of their perspective, different. It is as simple as that. So why is the ACT party doing a triple somersault and a side twist, and trying to land on its feet? I heard Mr Prebble. He made much of that clause this morning, did he not, as if it was something incomprehensible that he could not understand. That is what he said—he said that no court would understand it. Well, I tell members something. One could leave out the words “including the protection of the association of whānau, hapū, and iwi”, but if one adds them in, it just demonstrates that one may understand that different people see things in different ways.

However, whilst I am at it, I will talk to the Māori Party and ask how many of its leadership have sold Māori land? What is the record on the sale of Māori land by the leadership of the Māori Party? Can that party say, like I can, that it has never sold an inch, ever? The Māori Party should not come here with a whole lot of people and preach about the Māori people and their heritage, when its background is ridden with people who have sold Māori land and, worse still, the people in its leadership have never been off the State’s teat since they left school. They have never been privately employed; they have been on the State’s teat since they left school. [Interruption]

The CHAIRPERSON (Hon Clem Simich): I warn Mr Samuels for the last time.

I raise a point of order, Mr Chairperson. That is his third warning. I just want to know what the process is. We notice that Mr Peters has had two calls, New Zealand First has had, I think, four—

💬 Opposition Members: Three!

I am sorry; I thought that that party had had more than that. I thought that party had more competent members. With no disrespect intended to Mr Prebble, I notice that he is now getting a second call. A number of our members want to make contributions on this part. After all, unlike the ACT party, we do represent constituencies and have a direct association with voters. Further, I would like to say that I intend to take a second call. I would like to have an assurance that the Committee, as we approach the second hour of debate on this particular part, will not suddenly be bombarded by requests for closure motions.

The CHAIRPERSON (Hon Clem Simich): Thank you for raising that issue. I am quite conscious of it. All parties will have their opportunity to take part.

Let me make it quite clear to Gerry Brownlee that, as a list member, I represent constituents—every New Zealander, both Māori and non-Māori—and I intend speaking in that way.

I have to say to Mr Peters that his last contribution really sounded like that of an old man going back and talking about his past grievances. He is stuck in history, telling us all about what happened to him in the National Party caucus. He lost. He should get over it and start again. He was booted out, and he should move on.

Let me take up the matter that Mr Peters raised with the Committee: how can people say this bill is racist, and how can people say that Māori have lost everything and they have gained everything? I will take him through that.

Let me first explain why the bill is racist, because Mr Peters’ claim that Māori will next week have everything they had last week is simply not true.

💬 Rt Hon Winston Peters: It is.

In this bill, I say to Mr Peters, no non-Māori lose any freehold right that they have over the foreshore; no non-Māori lose that. But the Court of Appeal said there may well be iwi in New Zealand who actually do own freehold foreshore. They lose that.

💬 Rt Hon Winston Peters: No, they don’t.

Yes, they do. Under this bill, Māori—and Māori alone—lose that title, which they now have. The court does not create it; it just recognises it. The court does not create it; it says: “No, Māori own it.” That is why the bill is racist—because only Māori lose that property right under the bill.

💬 Hon Member: Tell that to the people of Matauri Bay.

Thank you very much. The next point that I want to make is why people can say that Māori gain enormously under the bill. One has to look to Supplementary Order Paper 303, which came in so late that it is not even in the redline copy. It says that the actual title of the bill will be changed; part of the legislation will be called the Resource Management (Foreshore and Seabed) Amendment Act. Why is that? Because when we look through the bill we discover that under the Resource Management Act a whole lot of new rights have been created for Māori—and only for Māori. They are not for anyone else; they are only for Māori. Yes, there will be some Māori who do well. If I might use Mr Peters’ own colourful phrase when criticising the Treaty of Waitangi fisheries settlement—he said that no ordinary Māori had seen a snapper, which was true—under this Resource Management (Foreshore and Seabed) Amendment Bill, no ordinary Māori will get a pipi, but the “Browntable”, to use another of his colourful phrases, will do well under it. For the people who have made a fortune out of the grievance industry, this bill is a new gold mine. The lawyers, the accountants, and the white-shoe brigade will do well.

That is why there is the irony that Māori lose under this bill; they alone lose their property rights. That is why the bill is deeply racist and a disgrace to this Parliament. How on earth can we be starting this century with racist legislation that removes property rights, but only from one race in this nation? That is a disgrace! I cannot understand how the great Labour Government could possibly be introducing such a bill.

Then it goes and introduces something that my friend Mr Shirley calls socialism, and that is what it is. There is a new saying of socialists: one does not have to actually own it—just regulate it.

💬 Hon Ken Shirley: Control it.

This bill does hand over control, but not to all Māori—only to those Māori whose activities we have already seen on the Treaty of Waitangi settlements, on the Treaty of Waitangi gravy train. The gravy train has just been turned into an express by this bill. This bill will cause legal uncertainty, and there will be case after case. This bill actually solves nothing; it makes things far worse.

I rise to make a clarification, in the light of the previous member’s presentation of the bill as being racist on the grounds that no non-Māori loses private property rights. It is true that no Māori, or non-Māori, who has private property rights loses them under the bill, so it is not discriminatory in that sense.

💬 Hon Richard Prebble: Rubbish!

If the member would just bear with me for one second, so that we can go through—as he has been kind enough to raise it—what the Court of Appeal actually said, and what it was deciding. The Court of Appeal was deciding whether there should be a process for determination by the Māori Land Court of a common law customary title. At common law, those titles are not alienable; they are not fee simple titles. It is true, however, that the only jurisdiction that the Māori Land Court has is under the Te Ture Whenua Maori Act, which does provide for fee simple title, but not for a customary common law title. Therein lay the dilemma, because when that Act was enacted, there was no intention that it should cover wetland—only dry land.

I would like to speak to the various purposes of this bill, and just observe that there are many, many contradictions, confusions, and conundrums in this bill, which will be causing never-ending problems for Parliament in the years to come.

The issue with the legislation is this: the problems will not be seen next week, they will not be seen before Christmas, and they will not be seen next year; but, 2 or 3 years later, the problems caused by this legislation will be seen at Mount Maunganui, Papamoa, Maketū, and throughout the rest of this country. New Zealanders will ask why Winston Peters travelled up and down the country telling the people of New Zealand that this legislation was OK. Government members must be laughing all the way back to their offices. They have brought in this legislation and Winston Peters is going to sell it for them. He is going to lose whatever shreds of credibility he has left, when he has to go around New Zealand defending this legislation. He is the man the Government is looking to to sell this legislation.

💬 Marc Alexander: The poodle.

No, Winston Peters could never be described as a poodle. This bill will haunt Parliament in generations to come. Only a few of us in this Chamber will still be here when Parliament has to wipe this legislation and start again. This legislation is going to be a weeping sore in this country in generations to come, because it lays nothing but confusion and division before the people of this country.

This Government cannot answer basic questions like this: if we can have a foreshore and seabed reserve, and a marine reserve, and an aquamarine management area, and a mātaitai and a taiāpure, how do they all fit with each other? If we have a foreshore and seabed reserve, can we also have a marine reserve? Mr Peters said that we cannot. The officials say that we can. That tells us we will have no end of confusion over who runs these things. It is fine for a few city members to come down to the Chamber and argue why we should have this divisive legislation, but for those of us who represent coastal New Zealand, who are at the forefront of where the conflicts will be, I want to tell this Government that this bill is a recipe for disaster and division. And the problems will not be seen in the next couple of years. It is in the next few years that people will see them. It is in 2, 3, or 4 years’ time that the conflicts and the division will come forward.

They will come forward for this reason: when people are given rights to exercise control, they will eventually want to exercise those rights. It may not happen tomorrow, but it will happen. What that will mean is that regardless—[Interruption] Government members may laugh, but I say to Mr Fairbrother that he will not be here when Parliament has to deal with the mess that this Government and the New Zealand First Party are leaving this country. Mr Peters is being used by this Government to try to sell to this country what is a divisive and ineffective policy. If Mr Peters has read this bill as well as he read his Cabinet papers, then I am worried.

I am ashamed to be witnessing what is happening in this Parliament today. What we are seeing is a new raupatu—a new confiscation—in this Parliament, in the year 2004. Government members can argue about it, trying to convince themselves and the rest of the country that that is not what is going on, but this bill is nothing other than a confiscation of Māori property rights. I find it curious that at a time when we are spending hundreds of millions of dollars trying to patch up injustices from the past, trying to address ongoing suffering and grievance arising from confiscations of the past, we are about to perpetuate the same thing in Parliament today. I am ashamed to see that.

I do not doubt that there are members on the Government side who also feel shame at what is going on. I find it curious when I hear intelligent members of the Government talking about this measure—people like John Tamihere, who has fronted the Government campaign on this issue—and saying it is not taking away rights from Māori. I fail to understand how the member can say that. I heard Russell Fairbrother, who chaired the Fisheries and Other Sea-related Legislation Committee, talking about his mokopuna last night, and I challenge him to think about the legacy he is leaving for his descendants when it comes to this bill—the legacy that he and this Government are leaving.

I know that this bill is passing with the support of New Zealand First. I do not doubt that some New Zealand First members also feel ashamed of what is happening today, although we would not know it, because most of them, clearly, are not allowed to speak on this bill, and are leaving it to only Winston Peters and Dail Jones to do so. I debated on Marae with Winston Peters on this very issue, and I challenged his position on this—

💬 Rt Hon Winston Peters: Where?

On the Marae programme. Maybe Mr Peters does not remember, but if he checks the video he will see it there.

💬 Rt Hon Winston Peters: Which one?

He tried to deny it on Māori television, but his own website showed that the New Zealand First position was to confiscate not only foreshore and seabed but waterways, mountains, and forests, as well. Of course he tried to deny it on Māori television, but his own website showed it.

It is telling that New Zealand First put Dail Jones in charge of negotiating this issue. Dail Jones is a man who follows the Justice Prendergast interpretation of the treaty. He believes that the treaty is a nullity. How could New Zealand First put him in charge of negotiating the New Zealand First position on this bill?

The Government has ended up relying on New Zealand First because it has got itself in a very difficult position with its knee-jerk overreaction to the finding of the Court of Appeal. It is true, as Dover Samuels has said, that there has been a lot of misinformation about what the Court of Appeal said. It did not say that Māori own all the foreshore and seabed, but that does not take away from the power of what it actually did say. What it said was that the Government, the Crown in general, did not own the foreshore and seabed, and that Māori could go to court to prove their customary ownership. The Court of Appeal stated that that would be difficult to prove, and it implied that there would not be many places in the country that would be affected, but it recognised that Māori had that right. But the Government, for its political advantage, chose to rark up Pākehā fear about Māori closing off access to the beaches. It knew that was wrong and false, but it chose to do it for political advantage.

The really interesting thing is that since the introduction of the bill I have come across at least one example of a Māori landowner who previously, from goodwill, had been totally happy to allow general access to the beach that that person’s land adjoined, but who is now closing it off because of anger and disgust at what the Government is doing with this bill. That is a shame on the House, and it shows that the Government is setting back relationships between Māori and Pākehā, and other New Zealanders, considerably by the passage of the bill.

It is not about going to the beach, or access for a beach barbecue. The areas that those kinds of things are concerned with are very unlikely to be covered by court recognition of customary ownership, because of the conditions of exclusive and uninterrupted use. It is not about Māori denying Pākehā access to the beach for a barbecue; it is about the fact that the Government does not want Māori to have control. This bill is about putting control back into the hands of local councils. The Government does not want Māori to have real power in relation to these issues, particularly when it comes to commercial activity. It especially does not want Māori to have any kind of veto right, because it knows that one of the strongest voices for environmental protection is tangata whenua.

I have listened with interest to a number of contributions in the Committee today. The difficulty that a number of members have in getting their minds round this legislation comes from their inability to understand the key cultural drivers behind Māori thinking, so I want to express those in regard to their application to Part 1.

At no time have Māori ever wanted ownership in the sense of freehold title, fee simple title. When we talk about rangatiratanga, kaiwhakahaeretanga, and matters of kaitiakitanga and the like, we do not talk about the type of fee simple, freehold title system that has been implemented under this and a whole range of Governments. We do not talk of that. At no time have our people ever wanted the level of ownership expressed here. This legislation acknowledges and recognises that. It recognises the fact that we are stewards and guardians. It recognises the fact that those rights have been tuku to us from our ancestors. It recognises the fact that in no circumstances should we be able to alienate those and lose our customary heritage that has been handed to us.

We were faced with the challenge of having to encapsulate our cultural requirements, for the very first time, in a piece of legislation. I say to the Committee that I commend the legislation to it, because it is the first attempt at writing that manual—in actually evidencing Māori customary rights. It is the first attempt on this scale ever conducted by a Parliament in this country. We are doing the best we possibly can in that regard.

The next point is about the way in which the law must work. Much ado has been made about the legislation being racist. It is not racist legislation, on the basis of—solely—the law. One cannot rock up to Parliament, as the Hon Ken Shirley or Gerry Brownlee have said, and say that this legislation is racist because it deals only with Māori. It is legislation that deals with Māori because Māori solely have the rights. If we take away those rights and walk across them, we destroy the whole constitution. We would not have law; we would not have order. There is a difference between law, order, and justice, and Māori have the right of equality of opportunity before the law, under article 3 of the Treaty of Waitangi. Māori have a right to good governance, under article 1 of the treaty. Māori have a right to the retention of our cultural processes, as endorsed and encompassed within this legislation, under article 2 of the treaty. So for the very first time in this country we are starting to see the merging and the converging of our great Waitangi Tribunal jurisprudence, on the one hand, and our constitutional bedrock, on the other, based on the common law. We walk across those at our own peril.

The Opposition does that. Opposition members confuse this very simple process, and in trying to confuse it are confusing the rights that Māori have—which are different rights, just as the Fens people in Great Britain, and a whole range of other indigenous folk, have different rights—which are bonded in our constitution of the common law. The fact that Māori have those rights in a larger sense of the word is just a fact of history. It is a fact of the settlement and it is a fact of the law. We either uphold the law in this country, or we do not. The foreshore and the seabed—[Interruption] It is a quote from hell, I tell the member; the stench on him will be pungent in the next few months, I can assure him—particularly from the allegations he has made. I move to more important matters on the foreshore and seabed.

💬 Gerry Brownlee: I raise a point of order, Mr Chairperson. I am not sure whether you were listening to that tract of the former Minister’s speech, but I believe that what he actually did was issue a threat across the Chamber, which is quite unparliamentary, and he should be required to either explain himself or withdraw and apologise.

💬 Darren Hughes: I did not take that inference from what the member for Tamaki Makaurau said, at all. He talked about the future, in the same way the Hon Tony Ryall talked in his address about the future political fortunes of people in this House. Mr Tamihere was doing the same. There is a lot of sensitivity on the other side of the Chamber.

💬 Gerry Brownlee: There should be recognition that when a member makes those sorts of comments there is clearly a sinister aspect behind them. I am sorry but there is. It does not matter how much the gender-confused Labour junior whip wants to titter away there; that remains a fact.

The CHAIRPERSON (Hon Clem Simich): The member should stick to the point of order.

💬 Gerry Brownlee: I think Mr Tamihere should be required to explain himself, or to withdraw. He will not apologise—that would be too much to expect of him—but perhaps he could at least withdraw the remark.

The CHAIRPERSON (Hon Clem Simich): I thank the member for all the options he offered me. I heard what Mr Tamihere said. He moved on very quickly from it, but if you object to it, I ask Mr Tamihere to withdraw only.

I withdraw. I bring the Committee’s attention back to new clause 2A, “Object”. More particularly, I indicate that the Government has actually affirmed the “protection of the association of whānau, hapū, and iwi with areas of the public foreshore and seabed.”, which is to be cemented into the object of the bill. Secondly, as a reinforcement of that, new clause 3(b) provides for the “recognition and protection of ongoing customary rights to undertake or engage in activities, uses, or practices in areas of the public foreshore and seabed;”.

The previous speaker made a great plea on behalf of Māori for their rights to be recognised. We teased a lot of those issues out with Mr McHugh, who is recognised as an expert on those matters.

💬 Tariana Turia: Is he a Māori expert?

There was an interjection there that was worth recording, but I did not hear it. Mr McHugh claims to be an expert on those matters. He was brought before the Fisheries and Other Sea-related Legislation Committee to give us the benefit of his expertise, and one of the most interesting things, I think, that we got out of him in the 3-odd hours that we listened to his interesting view on how those things are constructed within the law was the acceptance that anything to do with a customary law title is understood by us only in the context of the British common law.

One of the things that fascinates me about all of this is that if Māori have those rights and claim them, why do they need to have them affirmed in the law in this way if, in fact, there is not some intention to constrain those rights? That is the contradiction in the Labour Party’s argument. Māori member after Māori member stands up and says what a great thing they have done for their people. Well, that is just not right.

On the other side of it is my strong objection that, as somebody who is from the fifth generation of his family in this country, I continue to be told that I will never be the same in this country as someone who is Māori. So I ask myself what the purpose is of this particular bill. It does not satisfy Māori, it does not satisfy the people I represent, and it does not show much direction for the future. Mr Prebble is absolutely right when he says that in new clause 2A, as soon as the qualification is expressed that is put in there in the words “including the protection of the association of whānau, hapū, and iwi with areas of the public foreshore and seabed.”, it separates out—

💬 Russell Fairbrother: It is inclusive.

It would be inclusive if that sentence stopped at the words “the common heritage of all New Zealanders”. That would be the end of it.

A whole lot of questions are raised in this newly renamed bill, and they will not get the sort of scrutiny or public attention that they deserve. For example, if we get very practical, some of them would be the questions that the Hon Dr Nick Smith asked. How can we create new reserves inside reserves and over areas where other arrangements are in place? What will be the relationship between the Minister of Fisheries, the Minister of Conservation, and the Minister of Māori Affairs under the new arrangements? The beneficial owner—if one likes, the nominal owner—of the foreshore and seabed under this bill will be the Hon Chris Carter. What will happen when it comes to fisheries legislation or regulation? Will he negotiate with Parekura Horomia, or will he negotiate with the Minister of Fisheries, the Hon David Benson-Pope?

💬 Russell Fairbrother: What’s this got to do with it?

That is exactly the sort of confusion that has been put in this bill—there is total confusion in the bill. I do not think anybody on the Government benches has worked out at this stage how difficult it will be to achieve the reserves for Māori. That will be very difficult. That is why we know that there is a clause in the first part that talks about the requirement, when a reserve is not able to be put in place, that the Government must then engage in looking for redress. That means getting out the chequebook.

Once again I say this is certainly an interesting debate. It is interesting to hear the deputy leader of the National Party say very clearly to the people of this nation why the National Party does not support this bill. Now we are getting to the nitty-gritty. All the rain-dancing around the bill is peripheral to the real crux of the matter. Now we have a bit of horsepower in terms of the bill when National asks why it should support the bill and why it should have to recognise Māori customary right. Therein lies the issue. Why do we have to recognise Māori customary right? I want to repeat again—

💬 Gerry Brownlee: Mr Chairperson. I seek leave of the Committee to repeat my speech, because quite clearly Dover Samuels was not listening to it.

The CHAIRPERSON (Hon Clem Simich): Leave has been sought for that course of action. Is there any objection? There is objection.

I just want to repeat again what my experience, and the experience of my people, has been. The fact is that over years and years—over generations—the customary rights of my people have never been recognised in the law. It is as simple as that.

It is absurd to suggest that Māori customary right does not need to recognised. To those people who say that when they get back into power they will repeal this legislation, I say God help the nation if they ever do. I tell those people that legislation will not repeal what is inherently that of Māori, the indigenous people of this nation. Māori are entitled to have their customary rights recognised, and this legislation spells that out very clearly. Let me say very clearly to the Opposition members that I have had no access, and neither have the generations of my forebears, to actually even go to the court to have our customary rights recognised. This bill provides access for our people not only to obtain a customary right order but to go to the High Court and get recognition of a territorial customary right—in fact, an aboriginal title. That is unprecedented in the history of this nation.

I say again to the people of this country, both Māori and Pākehā, that my mokopuna and their mokopuna will stand side by side on the foreshore of this nation—our mokupuna, both Māori and Pākehā—and look towards the future. Under this legislation future generations of our people will stand side by side, proud to be New Zealanders. They will recognise their different origins, but will be proud to stand together on the beach. I say “Merry Christmas” to the people of this nation; it is not too far away. Māori and Pākehā will be able to go down to the beach, and nothing will be changed. They will be able to have their barbecues. Even Gerry Brownlee will be able to go down there with his bikini and try to get a suntan. Even the deputy leader of the National Party will be able to put on his swimming togs, go down to the beach, put a bit of slip-slop on—a bit of oil—and try to turn the same colour as my colleague Parekura Horomia. Nothing will change, but God help them if they have any observers.

I am here to tell the truth, not to tell a bunch of lies. New Zealanders will be able to go down to the beach and do the things that they have always done.

💬 Hon Dr Nick Smith: Not true.

Who is the apparition who made a comment? I cannot understand who he is. Māori will be able to go down to the beach and, I repeat, pick their pipis, dive for their tuatuas, go to their favourite rock, go snapper fishing, and do all the things that they have been doing in the past. The members who have got up and said that people will not be able to do so are a bunch of liars. They have not told the truth outside this Parliament, because this bill does not change anything, except by recognising the rights of our people. I come back and say again that I have heard claptrap from the parties on the Opposition side of the Chamber. I can understand the Green members talking like that. They are hallucinating; they cannot help it. They smoke too much psychedelic pūhā, so I can understand that.

💬 Metiria Turei: I raise a point of order, Mr Chairperson. I take personal offence to the description of the Green members as hallucinating. I ask the member to withdraw and apologise.

The CHAIRPERSON (H V Ross Robertson): I heard that ruling this morning. The member will withdraw and apologise.

I withdraw and apologise. I am just trying to make the point that groups of people out there spin untruths to our people. I appreciate what the Rt Hon Winston Peters said. That is politics, but sometimes one actually has to tell the truth. I go out there and tell the truth.

I have been seeking this call since about 10 past 9, so I intend to use my 5 minutes very wisely. At the outset when MMP was introduced I could see only one good thing about it, which was that for the first time it brought to this Parliament about the right number of Māori, in terms of the population represented. I think that is very good, and it should be upheld. That is the only good thing I can see about MMP, and here are the bad things.

Today the Government, aided and abetted by New Zealand First, is passing legislation that has tried to please all the people. There is an old cliché that goes: “You can please some of the people some of the time, but you can’t please all the people all the time.” This socialist Government has done that, helped by New Zealand First—which, I hasten to add, brought more Māori members into Parliament than the Labour Party did. Labour has had a proud history of association with the Māori people through the Rātana Church. That proud record was broken by the New Zealand First members, who swept it to one side.

Today New Zealand First is aiding and abetting a socialist Government to pass legislation that is divisive. This legislation will bring about only divisive outcomes. There is no other way of looking at it. The Māori members over there on the Government benches have made some fine contributions to the debate, but they are muddled. If any more of them jump out of the waka, it will tip over. That is what will happen here. A Cabinet Minister and one well-known Māori family have already jumped out of the waka. If any more people jump out, the waka will tip over. Even New Zealand First will not be able to help them. We have here today something that is very divisive.

This legislation has been described as racist. That is a very strong word—it is an awful word. Racism is awful. It is up there with hate, and I hate it. I hate racism. I have seen it, I have experienced it, and it is awful. It is something we should never ever tolerate—not for a moment. But racism is what is being inflicted by those who would normally oppose it—that is what is happening. I say to the Minister in the chair, Damien O’Connor, that he should get the Attorney-General to explain to the Māori members of the Labour caucus why she did not let the issue of the foreshore and seabed go through the due court process. Why did the Attorney-General step in and say to Māori that although we have laws in this land and allow things to go through the court process, that is not the case for Māori. Because of Margaret Wilson’s loony-left activists in the Māori Land Court—her hand-chosen loony-left activists—she would not let Māori take the issue through the court process. Why not? That is what I ask Government members. I ask Mr Fairbrother, the chairperson of the Fisheries and Other Sea-related Legislation Committee, a lawyer who understands the detail of that, to explain why the issue was not allowed to go through the court process.

I can understand the reasons that would have been given, and the debates and the arguments that would have gone on in the caucus, but I will not and cannot understand how the Labour Party, with its proud history of association with the Rātana Church and with the support from Māori that it has always enjoyed, could do that to its own voters. That is beyond comprehension, and no Minister has stood in this Chamber so far and told us why the Government would not let that process take place—other than, of course, the fact that the court is stacked with Labour’s own loony-left activists. That is the only explanation we can see. I say to the members who have stood up and said this legislation will be good for Māori that it will not be. There is a well-documented history that Māori have not been well served by Labour. That is the reality. More has been done for Māori by National, and over a very long period of time, than by Labour. All that this legislation really is about is a back-door amendment to the Resource Management Act. This whole problem came about, as Mr Fairbrother well knows, when that Act overlooked what had been prescribed in law under previous Acts like the harbour boards Act, and other such Acts. That is all it is—and what does it do? This legislation brings about a opportunity for Māori and non-Māori to stand apart in the eyes of the law. That is what it does, and it does not matter how much the Hon Dover Samuels and others stand up and talk about Māori culture.

I remind Shane Ardern that there is an old saying that goes like this: “You can fool some of the people most of the time, and you can fool most of the people some of the time, but you can’t fool all the people all the time.” He raised the issue of the Resource Management Act. Who passed the Resource Management Act? It was his predecessor when he was an electorate chairman.

💬 Hon Ken Shirley: And when you were in Cabinet.

No, no. It is like striking a nerve. The National Party ought to be reminded that noise and bombast is no substitute for debate and analysis. Gerry Brownlee wanted to know why there were two bills. He was on the select committee, yet he got up and asked everyone else why there were two bills. There have been since day one, but he does not know. So it gets worse. The real issue with regard to this debate today and yesterday, is this: where on earth is the great communicator? This should have been the day he had a field day. This is his issue. This is his time. This is his chance. So where is the great communicator? Where is the great debater?

The CHAIRPERSON (H V Ross Robertson): The member will speak to the bill.

💬 Gerry Brownlee: I raise a point of order, Mr Chairperson.

The CHAIRPERSON (H V Ross Robertson): The matter has been dealt with.

💬 Gerry Brownlee: I just want to make it clear that the great communicator, the Prime Minister, Helen Clark, is swanning around the country looking for another photo opportunity.

The CHAIRPERSON (H V Ross Robertson): The member has been here a long time. I suggest that he look at Speaker’s ruling 23/7.

I have to admit that if I were out there in radioland or if I were in the gallery, I would be saying to myself: “Surely this has to be the day when the great communicator sheets home his point.” But, of course, all he does is copy New Zealand First. That is why we do not understand why he is not backing us on this bill.

The CHAIRPERSON (H V Ross Robertson): The member will speak to the bill.

I am getting to it.

💬 Dail Jones: I raise a point of order, Mr Chairperson. This debate is wide ranging. The purpose clause includes ownership of the foreshore and the seabed, and everything that is in the bill. So the member is perfectly entitled to make the comments he is making. They are consistent with the bill.

The CHAIRPERSON (H V Ross Robertson): The member said he is getting to the bill.

I am getting to it, but I should make this point. On Saturday he did not know whether National would be part of the committee that will consider the constitution, but he followed our lead, and now he is out. So will Rodney Hide be, shortly. They do not know what they are doing. They just go around copying another party that does know what it is doing. I ask the National Party this: which port authority is complaining now?

💬 Hon Dr Nick Smith: Port Nelson.

Oh, I see.

💬 Hon Ken Shirley: Ports of Nelson.

Oh, ports of Nelson are complaining. About what? In Whangarei, Auckland, the Bay of Plenty, Napier, Gisborne, New Plymouth, and everywhere, they are happy because we said that whatever they had they will go on having. There will be no imposition or attack on any rights they might have. But, of course, Nick Smith has probably gone down there and misinformed the local ports of Nelson. What port authority is complaining? Nick Smith’s port authority is complaining.

I heard Nandor Tanczos talking about confiscation, and I want to ask him this: why would it be right, as his party advocates, to have every foreigner come to this country yet not try to preserve what is here for ourselves in the form of this law? He said he knew of an example of a Māori closing off access to the beach. He was asked which one, and he could not say. He did not know. He does not understand that when we talk about riparian rights, we are not talking about the foreshore and seabed. He should go away and see his colleague Metiria Turei, and get her to get somebody who knows something about the law to tell him, because he is talking absolute humbug.

There is just one last thing I want to say, and it is in reply to Richard Prebble. Why was the Māori wardens case important, when the National Party wanted to give them rights of arrest?

💬 Gerry Brownlee: Get back on the wicket!

It is to do with fishing law. That is why it is relevant. That is why I get sick and tired of that party over there that has lost every semblance of principle and consistency. They stand for nothing anymore. They cannot even hold an argument together for one day, let alone one year or one decade. They are just riddled with contradiction and dispute amongst themselves, scrapping as they do to try to gain power.

I raise a point of order, Mr Chairperson. I did not want to interrupt the member who has just resumed his seat. He said there had always been two bills, and I raise this as a matter of procedure, not as a matter of debate. We have before us Supplementary Order Paper 303, which was tabled yesterday and is titled “Foreshore and Seabed Bill”. It is a proposal only—a motion—to divide the bill into two bills. I seek clarification on whether there have always been two bills, or whether there has been one bill and there is now a proposal to divide it. I would hate the Committee to be misled by the claim made by Winston Peters that there have always been two bills. I seek clarification that my understanding is correct: that there is one bill and a proposal has been made to divide it.

The CHAIRPERSON (H V Ross Robertson): The member has made his point.

I think that even someone like Mike Ward, a member of this House, would know that it was always intended to have two Acts of Parliament—

💬 Metiria Turei: Point of order—

The CHAIRPERSON (H V Ross Robertson): There is a point of order already on the floor.

I am responding to a point, but I apologise to the member: I did not mean what I said to be so harsh. I meant that any first-term member, as opposed to Mr Shirley who has been in Parliament for about six or seven terms, would know that when a bill contains amendments to the Resource Management Act—as this one contains in Part 5—a procedural motion would always be moved later on in the debate to have two bills. In this case, one would be a Foreshore and Seabed Bill and the other would be a bill to amend the Resource Management Act. That has always been the case. Mr Shirley has also been a member of the select committee, and, if he does not know that, then we can understand what a hopeless case he and the National Party have been presenting today.

The CHAIRPERSON (H V Ross Robertson): That is not a debating issue. The member has made his point well.

I just want to say that a comment was directed at me, which was designed to cast a bit of an aspersion. It was a derogatory comment. Of course, technically, Mr Jones is always right. I asked questions about “a bill” in front of the select committee, and quite reasonably so. The thing is, we should move on. We all know that the New Zealand First Party cannot make any points without getting personal. We know that Mr Peters is going through some sort of a reminiscence of past grievances this morning, demonstrating exactly the problem with Māori in this country, and I just want to say that I forgive him.

The CHAIRPERSON (H V Ross Robertson): We have all had our fun. It is time we moved on.

This morning I was appalled at notions of racism. I am now absolutely amazed. So I have moved from being appalled to being amazed.

💬 Mark Peck: Not a bad start.

No, not bad. I am amazed at a comment made by the shadow Minister of Māori Affairs, who asked why Māori would want to include their customary rights in legislation.

💬 Gerry Brownlee: I didn’t say that.

Yes, the member did—why would Māori want to go through that process to enshrine it in legislation? That demonstrates to me quite clearly that as a shadow Minister of Māori Affairs the member has very little knowledge of the historical reality. If nothing else, one of the driving motivations for Māori members to be here is to make a difference in terms of legislation that affects the constituency—in spite of what Shane Ardern says about divisiveness. He should know about divisiveness. He comes out of Taranaki. That demonstrates to me, as well, that he does not know anything about the history of Taranaki. Who drove the divisiveness in Taranaki?

💬 Hon Ken Shirley: Tainui.

No, not at all. What I am saying in the context of this discussion [Interruption]—and we do not want any interruptions from that member from Ngāti Raukawa, because we know what happened to those people, as well. That member demonstrates very clearly that he does not understand the notion of divisiveness and the forces of early legislation that caused that divisiveness in the community of Taranaki.

I will give here a bouquet, which is overdue, to New Zealand First. Mr Ardern said that we had made a lot of progress with legislation for Māori. The biggest piece of legislation I will mention in that regard is the legislation on the reserve lands issue. Who was in coalition? It was not the National Party but in fact New Zealand First where the initiative came from. So I would not be about claiming kudos for one party; I am about to give a bouquet to the most effective leader of the Opposition.

When we get asked why we are here, I tire of listening to speeches that continue to serve the marginalisation of our people. If these things are not enshrined in legislation, and apparent there, then iwi, hapū, and Māori in general will continue to be marginalised. That is a lesson of history. It is a lesson that we have learnt at our own cost.

In conclusion, it is my view that this bill, supported by New Zealand First, will put an end to any further marginalisation, because it also protects—and it takes vision and courage. I have not heard yet what the shadow Minister of Māori Affairs may promote as his party’s policy for a solution, rather than it creating a problem. So it is my absolute honour to stand here today and give my—

💬 Gerry Brownlee: I raise a point of order, Mr Chairperson. Yesterday the Prime Minister became very upset because a member suggested she had pleaded the Nuremburg defence when it came to the incident of her speeding from Waimate to Christchurch and to the subsequent charging of five policemen and one civilian, while she, it would seem, is escaping any question. I have just heard Mr Tamihere suggest, in response to Mr Mahara Okeroa’s suggestion that he had not heard what the shadow Minister of Māori Affairs might offer as his solution, that that would be “the final solution”. That is even more offensive than suggesting that someone is pleading a Nuremburg defence. It think it is a waste of time asking that man to withdraw and apologise. It is evident that he does not have much sense of what is right and wrong. But I do ask, Mr Chairperson, that you keep your ears open and make sure that that sort of thing does not occur again.

The CHAIRPERSON (H V Ross Robertson): The member has made his point. One unparliamentary remark does not justify another. I call the member to order.

I was attempting to bring a conclusion to what I had to say. We need to avoid any suggestion of the interpretation by the shadow Minister of Māori Affairs, because in fact I doubt whether the member on my right was being negative about what he was saying. We need to bring this issue to a positive end. We need to be a reflection of the community as it is today, not as it was in the 19th century. So I applaud this bill.

Let us remind ourselves of the sort of parliamentary skulduggery that is going on this morning, with Parliament under urgency and passing major legislation that will impact hugely on this nation and with that member who has spoken somehow believing that that will resolve this issue. I want to highlight the major provision included in this part—that is, the creation of a new legal instrument: a foreshore and seabed reserve. On the front page of this morning’s New Zealand Herald the Māori caucus is quoted as saying that they expect 10 percent of New Zealand will be set aside as foreshore and seabed reserves. I would be interested to know from the Minister in the chair, the Hon Dr Michael Cullen, whether he thinks that is a fair estimate. I ask again of the Minister in the chair: is it a fair estimate, as recorded on the front page of the New Zealand Herald, that 10 percent of our coast will be set aside as foreshore and seabed reserves? That is attributed to the Māori caucus. Is that correct?

💬 Hon Dr Michael Cullen: They did not say that.

Is the expectation, the report, reasonable?

💬 Hon Dr Michael Cullen: They didn’t say that.

Well, do the people of New Zealand have any idea as to the proportion of our coast—our precious beaches and our precious coastline—that will be set up in the new legal instrument provided in these amendments? Does the Minister have any idea at all as to what area of New Zealand will be set aside in these new foreshore and seabed reserves? The Minister in the chair, Dr Cullen, shakes his head and says he has no idea. So am I to draw the conclusion that we are being asked to pass legislation that will set aside, according to the Māori caucus—that is the promise he has obviously made in secret to the Māori members—10 percent of New Zealand’s coastline, which is 2,000 kilometres or 4 million hectares, to be vested in new foreshore and seabed reserves? I heard the last Māori member who spoke say that this will not change anything. Members can bet it changes things! It changes and moves the control of 4 million hectares—2,000 kilometres—from locally elected councils to a new special committee appointed exclusively by Māori. We are to expect—

💬 Hon Dr Michael Cullen: It doesn’t say that, either.

Well, what does it say?

💬 Hon Dr Michael Cullen: The court directs people to go and discuss the composition of the board. Read the bill.

Registers it with the court! Parliament does not get a say. It is to be registered by the Minister. This is a Trojan Horse for transferring the say—

💬 Hon Dr Michael Cullen: No, wrong again.

Would the Minister like to take a call?

The CHAIRPERSON (H V Ross Robertson): I say to the Minister that it is generally accepted that when Ministers are in the chair they do not use the live microphone.

The Minister cannot expect to table legislation on this very day, introduce a whole new concept of foreshore and seabed reserves, and say that the Government is not allowed to answer any questions and that it cannot tell us how much the area is. If we take the equivalent, marine reserves were first introduced in 1974. They make up only 0.3 percent, not 10 percent as the Māori caucus says the figure will be. Those marine reserves have been debated over years and years and years. They were first introduced in 1974 and they have been debated extensively, yet the Minister in the chair thinks it is kosher to introduce a new concept of foreshore and seabed reserves today and pass it all in 1 parliamentary day. Dover Samuels said that it would not make any difference to families wanting to go down to the beach and have a barbecue. Well, yes, it does, and I will tell members why. In relation to the 10 percent that his Māori caucus claims will now be foreshore and seabed reserves, it will be for the management committee to decide who will be able to have a barbecue and where.

💬 Hon Dr Michael Cullen: No, that’s nonsense.

It is true. Can the Minister in the chair explain why it is that the management committee of the foreshore and seabed reserves will be guardians. The guardians will be able to have those controls.

💬 Stephen Franks: If they can’t, why are they guardians?

Exactly. As my colleague Stephen Franks says, if the guardians who are going to manage 10 percent of our foreshore and seabed cannot decide whether a barbecue is allowed, or whether there will be a gate or boat access, what the heck are the guardians? Is it just a big fraud on Māoridom? I suggest that it is not, that it is real. It is a Trojan Horse for taking control away from councils and passing it over to these guardians.

I begin my comments by thanking the honourable member Dail Jones, who in his speech some time ago gave us an explanation of why the new clause 2A had appeared in the Supplementary Order Paper 302 proposed by the Deputy Prime Minister. He took ownership of the fact that it was New Zealand First members who went to the officials and discussed broadening the definition of Crown ownership to be what we now read there, which is a pretty good description of what was conveyed by the term “public domain”. I thank the member for that, and I thank New Zealand First and the Rt Hon Winston Peters for doing so.

But it does the beg the question of the Rt Hon Winston Peters as to who is copying whom, which he raised earlier. It seems very clear that the concept of public domain has been copied by New Zealand First. While United Future is happy that that is occurring, because it is a useful concept, we believe that there should be some recognition of it. It is not only the concept that is being copied but also the behaviour. I do not know whether anyone has noticed in the House, but New Zealand First is becoming very reasonable, very constructive, and very cooperative with the Government. I think Winston Peters must be becoming very worried, because he is morphing into United Future. Progressively, week by week and month by month, New Zealand First is morphing into United Future, and that must be of concern to Winston Peters. He has sat here for 2 years and watched the way that we have operated constructively with the Government, and I am sure that on many occasions he has thought: “Gee, I wish we had done that in 1996 when we were in a relationship with the National Party. We would not have got into so much trouble.” But many people are still holding their breath as to how long that attitude will last. Time will tell whether New Zealand First can truly morph into a party that is able to work constructively on behalf of all New Zealanders.

I want to make some comments about clause 3, the purpose clause, because it is, of course, a crucial part of the bill. It gives effect to the object stated in clause 2A, which has been discussed quite a bit already, then goes on to establish the purpose of this legislation. It is important that we debate this matter in the Committee today and, possibly, into tomorrow, but I believe that it is even more important that after the debate has occurred here it goes out into the community. I want to put forward a suggestion to the Minister and the Government this morning, which I hope they will take up, and that is that they take steps to ensure that communication is carried out from this Chamber. Not everybody tunes into the radio and listens to the debate—for obvious reasons, if anybody listens to it for any length of time! But it is important that this bill, in its new form with this huge Supplementary Order Paper, be communicated through hui throughout the country, and to Pākehā New Zealanders, so that everyone is brought up to speed. It is not enough to rely upon what is reported in the newspapers and in 60-second or 30-second sound bites on television and radio to convey information about this important legislation, which is now being improved in many ways by the Minister’s proposed amendments.

So I offer that suggestion to the Government. It is important that it find some independent people who are not affiliated with any particular political party, and who can go around the country and give a good explanation of what this legislation now means. A number of Government members who have spoken in the debate have said that there was a long consultation process, and have asked why everyone is complaining about the House taking urgency this week. It seems that they have completely missed the point. The fact that they went around the country talking to people does not necessarily mean that they were heard. It does not necessarily mean that they conveyed anything through all the hui that they held. The fact that 4,000 submitters came to the select committee is fairly clear evidence that those members were not heard as well as the Government thought they were.

It somewhat reminds me of the trouble that parents sometimes get into with their teenagers when they tell them everything, then wonder why the teenagers go off and do the complete opposite. They scratch their heads and say: “Well, we told them. Weren’t they listening?”. No, they were not listening; often teenagers do not listen to parents, because parents are not listening to teenagers. The Government needs to understand that it was not enough to go around the country and simply tell everybody what its policy was going to be and how it was going to solve this problem. It also needed to be listening. That is why we attempted to have the select committee produce an interim report; we wanted more opportunity for some dialogue, which may have resulted—we hope it still will, if it is initiated by the Government—in the bringing together of people in New Zealand over this legislation.

I want to speak on Part 1 and to highlight a couple of clauses that I believe provide some clarification in terms of the intention of Supplementary Order Paper 302.

There has been a lot of talk today about the objects clause, clause 2A. Implicit in that clause is the fiduciary obligation of the Crown to look after the foreshore and seabed for all New Zealanders, after it having first recognised that it has a role to protect the association of whānau, hapū, and iwi with the public foreshore and seabed. That implicit obligation will, in time, help to develop the thinking and the context of how the common law has been provided for in this bill. It is a good clause and a good addition in the Government’s Supplementary Order Paper.

The member before me made a couple of comments on the purposes clause. It sets out quite clearly the intention of the bill. Rightly or wrongly—whatever people may think about the content of the rest of the bill—the purposes clause gives a very good description of what is provided for in the legislation. I will highlight clause 3(c), which enables “applications to be made to the High Court to investigate the full extent of the rights that may have been held at common law, and, if those rights are not able to be fully expressed as a result of this Act, enabling a successful applicant group—(i) to participate in the administration of a foreshore and seabed reserve; or (ii) to enter into formal discussions on redress;”. I think that sets out very clearly that there are provisions within the bill that enable the full extent to be explored.

There were some issues raised within the debate about whether the common law rights applied to all New Zealanders. My friends in the Opposition will know that in the interpretation clause the devil is in the detail. The definition of “applicant group” could apply to anybody. Anyone who can pass the threshold test that is provided for later on in the bill has the opportunity to go to the High Court to find out whether he or she has a territorial customary right. So it is not race-specific, as members in the Opposition would have people believe; the way in which “applicant group” has been defined in the interpretation clause opens it up.

There are other points about Part 1 that I would like to comment on—notably, what is not there, and that is ancestral connection. All members will recognise that ancestral connection has been removed from Part 1 because a lot of submissions, as I understand it, had asked what it achieved. In effect, because of the way in which the ancestral connection has been provided for throughout the rest of the bill, it is a given that Māori have a very strong association with the takutai moana. Implicitly, within the other parts of the bill the ancestral connection becomes very relevant and is a given. That is a credit to some progressive thinking on both sides of the House about the nature of the relationship of Māori to the takutai moana.

There were also comments, and I think they were quite wide ranging, about whether a marine reserve would be affected—whether a mātaitai would be prohibited by this bill. Well, if the test is passed in the High Court, and a takutai moana reserve, or foreshore and seabed reserve, is created, then it is up to the management committee to determine that. Through its management plan, it may determine whether it wants a mātaitai within a marine reserve—it is up to it. Under the laws of this land, which apply to all citizens of New Zealand, it will follow the due process of law to lodge a marine reserve application. It is all up to it. I think that shows the depth of thinking that has gone into the possibilities that can be created within this bill that also uphold some of the interests that Māori have promoted in this area.

In times to come there will be some extensive thinking about what another part of this bill means. I am happy to see that the recognition of kaitiakitanga is the same as that referred to in the Resource Management Act. Why? Because it is consistent, it is something that people already have an understanding of, and it is not departing from some of the principles of resource management that we are all concerned about.

There has been a mishmash of understanding about what is not protected. I want to say in my contribution that the existing private property rights of all New Zealanders will be protected. The definition of “specified freehold interest” applies to all New Zealanders, including Māori.

I raise a point of order, Mr Chairperson. I do not know what rule is governing the debate on this part. I am aware that normally there are tight limits, but I have now been here for nearly an hour and a half and have seen the call go to National members and to Winston Peters. The National members have all had a round, and Mr Peters has had two speeches while I have been here. I do not raise this point of order only for myself; there are two members of Mr Peters’ party who have been calling throughout the time I have been here and who have not had a go. As I understand it, the Standing Orders suggest that the call should be available at least once to each member for a debate of this nature.

The format of the debate is that the contrary side of the argument is given first, and the supporting side second, or vice versa. It goes from side to side. In respect of the defence of my colleagues’ rights being put by another party’s member, let me say that my colleagues will get a chance to speak in this debate and they will do so shortly. It is not for Mr Franks to decide what their rights are. We have organised that, because I cannot be here all day, I will speak at the appropriate time. That is a fact. The second part of his argument was nebulous and nonsense.

The CHAIRPERSON (H V Ross Robertson): I thank all the members for their contributions. I say to Mr Franks that I look at proportionality within the House. He is within my radar at the present stage.

I have also been waiting for a long time to take a call on this bill, and I wish to do so because I am the MP for Kaikoura, which includes all of Marlborough and North Canterbury, and this whole debate began with the decision about the foreshore in the Marlborough Sounds. The drawing of that line in the sand was what led us to the discussions we have had in the select committee, and to our debating today in the Chamber a Supplementary Order Paper that nobody had a chance to see and digest until very, very recently.

I listened to the speeches that have gone before me. John Tamihere said that Māori have not wanted freehold title. That is certainly not my understanding of what was happening with the Marlborough Sounds seabed. Māori definitely wanted freehold title. I had people come into my office and say that when there was no land and no fish, no one cared, but now they did care, they did want that land, and they did want title—it was not just about guardianship. People have now moved to the concept of guardianship for about 10 percent of the foreshore and seabed, but there was definitely an intention to have freehold title. When the Attorney-General v Ngāti Apa decision provided that there was a possibility that private ownership of the foreshore and seabed could be granted—that it could go to the Māori Land Court—action had to be taken. That had never been the intention in the past, in our history. Until the Resource Management Act came in, most New Zealanders had supposed that the foreshore and seabed were in Crown ownership. It had not been an issue until that time.

I heard Mahara Okeroa talking about people being denied access to a certain area of Māori land in Nelson because, he said, people were not treating it correctly. When my own parents-in-law were down in the Arahura Valley, on the West Coast, where pounamu is gathered, they were denied access one time, when they were just wanting to take a stroll along the river. That is what has been beginning to happen around New Zealand. People have been denied access. I was in the Chatham Islands and went out for a run on the beach, and was told I was on private property. I and all other New Zealanders have grown up with the concept of the Queen’s Chain, the concept that we can walk down a beach without restriction, so it was a huge surprise to me to be told in the Chatham Islands that someone else owned the foreshore and seabed.

When one travels overseas, one realises that a lot of the foreshore and seabed is privately owned. It brings us back to what it means to be a New Zealander. What it means to be a New Zealander, for all the people I talk to in my electorate, is to have that access and not be denied it. A huge amount of consternation was generated by the decision to allow Ngāti Apa to go to the Māori Land Court, because it definitely would have led to a possibility of private, individual ownership of, and title to, that land—or even collective title to that land, but one that would deny others access.

The select committee process did not manage to return a new bill to this House, and we now have Supplementary Order Paper 302, which creates, in Part 1, a new legal scheme. A new system is being created. The amendment states that legal ownership is in the Crown—preserved in perpetuity for the people of New Zealand—but it is very uncertain about what will happen with the guardianship that can be given if Māori can show continuous rights. That is uncertain. It will be a reserve, but will Māori be able to deny access? I ask members to consider the Department of Conservation. Does it allow open access? No, it often shuts up areas of land. We will not know.

I was quite distressed to hear Nanaia Mahuta’s speech in which she lauded clause 3, “Purposes”, as providing Māori with access to the courts to get territorial customary rights orders. I wonder whether she is aware—we will talk about this later, in the debate on Part 2—that New Zealand First has negotiated a clause that means that contiguous land ownership is a condition of being able to get a territorial customary rights order. That is, in effect, the reinstatement of the 90 Mile Beach decision, which legal academics have known and continually said, since that decision was made, was wrongly decided. The Ngāti Apa decision overturned it because it was wrongly decided. Clause 3 will mean that those South Island iwi who took the Ngāti Apa case to court will not qualify for a territorial customary rights order. That is the effect of clause 3. It is not about providing access to the court; it is about denying, specifically and directly, those iwi who might well be able to establish some form of exclusive use and possession the right to attend court.

Mr Tamihere talked earlier about how the challenge for the Māori Labour MPs was to find ways to incorporate Māori rights into the bill. Their challenge was not to find ways to integrate Māori into this bill. Their challenge was not to find ways to assimilate Māori rights into this bill. Their challenge was to protect Māori customary rights, to protect the common law rights of iwi, whānau, and hapū in this country, and to protect tipuna title. By supporting this bill, the Māori Labour MPs and Māori New Zealand First MPs have failed in that challenge. They have failed to protect Māori rights. They are allowing the continual confiscation and extinguishment of those rights, and the further taking of land.

Those MPs try to justify this bill by saying it will give Māori more rights than they would get in the courts. That is a completely wrong justification. It is not true. They try to say that this bill incorporates the common law tests from other jurisdictions, such as Canada and Australia, and that Māori would be subject to those tests in the courts. But, in fact, Māori would be subject to tests in the courts that include our own treaty jurisprudence, which has been in development now for 30, 40, or more years. That treaty jurisprudence acknowledges that the common law rights of Māori are in a form set out in the Treaty of Waitangi—that that document has force, and is relevant to these decisions. Of course, the Canadian tests do not have that issue, and the Australian tests do not take it into account. But the New Zealand courts would, enabling Māori to have better access to justice, and enabling the formation in our own country of our own jurisprudence about what common law rights might actually be. By putting forward this bill, this Government is preventing the courts from exploring those issues, and preventing Māori from being able to explore the full scope and spectrum of what their common law rights might be in accordance with international jurisprudence and our own treaty jurisprudence here.

One of the real failures of this bill and of the whole process—including the select committee process—was the fact that so many alternative options were not explored. The most obvious of those would be to allow Māori to proceed to the courts to have the full scope of their common law rights determined. Yes, there would be some uncertainty for the Government, but it would leave an opportunity for that exploration and development of the law to continue. There were no problems last summer, when this issue had not been decided. The esoteric kinds of academic questions that go on in the courts do not have a huge impact at all on New Zealanders’ ability to enjoy the beach in the summertime. There is no urgency. There is no need to rush this decision. We could allow the courts to proceed and develop the law in accordance with New Zealand jurisprudence.

It is urgent only for Labour and New Zealand First. They want this bill dealt with before the election, because they see votes in it. They do not see the injustice of it. They do not see and understand the extinguishment and confiscation of Māori rights. They do not see that they are undertaking a return to the 19th century.

In my previous contribution I outlined that in new clause 2A there is an implicit fiduciary obligation on the Crown. I want to pick up on a point in clause 3, “Purposes”, relating to subclause (a): “vesting the full legal and beneficial ownership of the public foreshore and seabed in the Crown;”. As the debate has progressed over time, I see that people have misconstrued the concerns of Māori as an issue of sovereignty. Although at the extreme end of the debate there is a strong view about the sovereignty interests of Māori, it is irreconcilable, to some extent, with the treaty arguments that are then put up. If we move towards the middle ground, in order for the Crown to exercise its fiduciary obligation, it has to be quite clear on what basis it does that. New clause 2A provides that level of clarity and does that.

For the extreme ends of this debate, I think that new clause 2A will make very clear that there is an ongoing fiduciary obligation, and will bring people more towards the middle of where this argument sits. The Crown will have a full expression of its ability to be able to assert, on the one hand, the common law interests of Māori within the context of this bill, and, outside of this bill, another pathway that is more fitting and aligned to the Treaty of Waitangi settlements process. That understanding has been missed quite a bit in the debate, probably because people like to play around on the edges of it.

On the issues that were raised by the previous speaker with regard to the common law, I think those are more apt for the Part 2 debate. That is the context for them. In saying that, I point out in response that Dr Paul McHugh said that for the development of common law within New Zealand, we cannot get away from the issues of tikanga and the Treaty of Waitangi. I think there is a debate to be had that can probably be extended in Part 2. My contribution is very brief in this respect, but I highlight that there has been a lot of game-playing on the edges of this debate around the question of sovereignty.

Coming from a tribe that signed the Declaration of Independence only—from a group of people who can say that they did not sign the treaty but have been treated as though they were signatories, and have suffered the most—I will say that it is our responsibility as parliamentarians in this country to try to bring people together, notwithstanding the historical facts that have occurred over time. It requires a lot of effort and commitment to act in good faith as responsible parliamentarians and leaders of this country. Although I accept that there is a lot of emotion around this issue, I also accept that if we are to have a nation that works together and commits to that, we basically have to look at the realities of what we can achieve here today, and move from that point. I look forward to more cooperation within the Government on this question. I think it is important that we really put to rest some ridiculous expectations that are out there.

The member from Marlborough, who will not be with us next year, made the point that there are interests amongst Māori who want to go for freehold title. The reality is that, under the Māori Land Court and Te Ture Whenua Maori Act, that is all they could have been awarded had they gone along that track. So when that presented itself, I guess it presented the real question of us all in the domain of Tangaroa, or the foreshore and seabed, which is what it was that we were really trying to achieve here. Yes, interests exist—customary property rights, I believe—but was there a general view amongst New Zealanders that anyone owned the foreshore and seabed? I do not think that had been contemplated very clearly within any statute. In so far as it affects Māori, there was general agreement throughout the submission process that Māori accepted that access to the foreshore and seabed, the inalienability of title, and the rights of navigation are public rights for all New Zealanders.

I think, balancing up where the meeting-point was, those were the three clear points we had in working out how to find a way through this. Clearly the laws that could affirm title presented some difficulties. We may not be there yet. However, those difficulties have forced us into a situation where we have had to reconsider just what are the customary property interests and rights of Māori to the foreshore and seabed. That is what this bill is moving towards.

I wish to point out that Nanaia Mahuta has in fact voted against this. The comments made earlier about New Zealand First speakers still apply. I would like to know just what their reasons are. The Rt Hon Winston Peters has spoken many times and has given us no substantive reasons. He goes into history but gives us no substantive reasons for his support of this bill. We have had the benefit, however, of Government contributions—unusually in a debate of this kind.

In particular, the contribution from John Tamihere was interesting. He assured us that at no time have Māori ever wanted ownership of the seabed and foreshore. What were the 80 or so cases filed—which this bill cancels without replacement—about? I think John Tamihere has become accustomed to dealing with his colleagues, those people who exhibit the bigotry of false expectations and allow Māori claimants to spout pure racism—the notion that Māori are somehow different from everyone else in the world in the sense that if they are offered an opportunity they will not take it.

The opportunity this bill offers them is very clear. They can become guardians of public land, and nothing in this bill will stop the guardians from becoming beach trolls. That is what this bill will justify. It will generate expectations among Māori—and it has already, as we can tell by the agitation that has made the life of the Hon Michael Cullen so miserable for the last year. The expectation is that this is a soft substitute for genuine ownership. When they are given guardianship with no definition of what a guardian is or does, they will treat guardianship as equivalent to ownership. If it is not, they will think they have been robbed. And if they think they have been robbed they will feel justified in slashing car tyres and doing the other kinds of things we have already seen people do when they do not accept that the rights they have been given are the rights they are entitled to.

I have looked for evidence that what is really intended here is a consolidation of proper legal rights. As a lawyer, of course, I note that in this part we have the definitions. The definitions show just how racist this bill is. It is racist because they are not law; they are a set of slogans and duplicitous words designed just to postpone definition until later.

Let us look at a few. Clause 4 says “tikanga Māori” has the meaning it is given in section 4 of Te Ture Whenua Māori Act. When we go there and see what tikanga Māori means we see that it means “Māori customary values and practices”. That is not law. Any people can expect their customary values and practices to move as they want them to. Law is something you can know in advance. Law is something by which people can order their lives, by looking at it and saying: “Here is the boundary.” A custom or practice does not have a boundary. Māori are not going to forgo the right to shift, to move, and to develop. We have heard that in this Chamber. So the definition of tikanga Māori is not a legal one.

What else do we have? We have a definition of “recognised customary activity”. This bill tells me to look at the Resource Management Act, where it is “an activity, use or practice carried on, exercised, or followed under a customary rights order”. Where is “customary rights order” defined? It is defined in this Act. So we are deliberately sent in a circle, because they do not want us to know that there is actually no definition. There is no statement anywhere of what a customary activity is, so people can invent it and, with the collusion of the Māori Land Court, make it up as they go along.

Because there is so much agitation from Tariana Turia, the Greens, and Māori about not getting real ownership, New Zealanders are being encouraged to think that this settles it—that the Crown ownership in this bill is what it says. It is not; it is simply a platform for the assertion of completely undefined rights and interests that will enable kaitiakitanga—guardianship—to be set up with all the rights of beach trolls. The Government anticipates now that this will apply to 10 percent of the coastline. I venture to say that it will be all of the coastline. Why would it not be when this bill, which looks as if it defines the terms, does not even do so? One of the drafting conventions is that one does not define—

From the outset of the debate today I have wondered whether I was actually sitting in the Parliament of New Zealand, given some of the vitriolic expressions in this Chamber towards the intent of the bill. As a New Zealander I reflect the face of our country, in the sense that one part of me is Māori and the other part of me is of Irish and Scottish descent. This bill is all about New Zealanders. It ensures that the ownership of the seabed and foreshore, that part of our country that lies between the high-water mark and the low-water mark, is vested in the Crown for everybody—for Māori and Pākehā New Zealanders. The previous speaker wondered why New Zealand First was giving its support to this bill. That is the very reason we support the bill—because it is for everybody. It ensures that the ownership of that part of our country is vested in the Crown for and on behalf of every New Zealander, Māori or non-Māori.

We have heard in the debate this morning about the various descriptions the bill has introduced. I noticed that the speakers from ACT made particular reference to the last part of new clause 2A, “Object”, which states: “… including the protection of the association of whānau, hapū, and iwi with areas of the public foreshore and seabed.” I wonder whether, in order to minimise that source of criticism, we should have included “families, extended families, and clans” to describe the non-Māori make-up of our community. All that the wording in the bill does is to ensure that we recognise the connection Māori had with that part of our country before we were colonised. As I have used that word, some of our Māori critics may feel that we have been colonised. But if it means that all New Zealanders can be assured of having access to that part of our country and of knowing that its ownership is vested in the Crown on their behalf, then I am quite happy to say that I am colonised.

I just want to refer to the definition in clause 4 of “foreshore and seabed reserve”. In the discussions leading up to Supplementary Order Paper 302 in the name of the Hon Dr Michael Cullen, it was suggested to us that we should include the phrase takutai moana, in recognition of the belief that Māori had over that issue. New Zealand First, and particularly its Māori members, suggested that phrase should not be included, and I will tell members why that was. I suggest to the Minister of Māori Affairs that when we talk to our relations about takutai moana, 99.9 percent of my relatives and his relatives talk about where the sand begins and where the seabed ends on someone else’s coastline. By saying foreshore and seabed reserve, we are quite clear as to the part we are talking about.

The question was also asked of why New Zealand First supports this bill. One reason is that the legislation ensures the public foreshore and seabed is vested in the Crown. It ensures the rights of access and navigation of the public.

I move, That the question be now put.

In speaking to Part 1 of the Foreshore and Seabed Bill, I must observe that I just know what the Minister’s former colleague Sir Geoffrey Palmer would think of what is going on in this Parliament. He would consider this, I suspect, to be a constitutional outrage—and that is what it is. As we look at this bill, we see at least 50 percent of it has been amended, and that amendment was dumped on this Committee when the debate started. The consultation with the public of New Zealand on this legislation has been almost non-existent. Sure, Māori have had a lot of say, but the ordinary people who are members of the public in Rodney—where there is a huge coastline and foreshore in the Kaipara Harbour—have had no say on it.

Today I have heard members of this Parliament refer to this bill as being deeply racist legislation. Members of the Government have denied that, but when I look at the wording in Part 1, I see there is no way to escape that conclusion. Members of the Government have suggested that the bill is not racist because in applying to be involved in the administration of a foreshore and seabed reserve, the applicant group is open to anyone under clause 4. Sure, the definition of “applicant group” does not specify that the applicant group has to be Māori, but the courts will have to try to interpret this law, and that is why I think what we are doing today is so serious.

This is new, complex law, and the way that the courts interpret it could have huge implications for New Zealand. How are they to interpret what an applicant group is? As I understand it, a court would look back to the object of the legislation. Let us look back at clause 2A, “Object”. We see nothing in that clause to suggest that anyone other than Māori can have any specific interests, because what is protected under the object is “the association of whānau, hapū, and iwi with areas of the public foreshore and seabed”. How is a court to interpret that that means anything other than Māori? My family is not whānau or hapū. Those terms relate to Māori families and extended families. So clearly, as we look at the object of this bill—even though it does not state this, because the Government is trying to make it look as though this is not deeply racist legislation—we see an applicant group will have to be Māori.

I look further in clause 4 at the issue of who is to administer those foreshore and seabed reserves. I think I even heard the Minister in the chair say that the High Court will be involved in the appointment of the members of the boards—the governors. When I look at clause 4, I see it states the members “are appointed in accordance with section 34E”. Does clause 34E spell out how the members of those boards are to be appointed? No, it does not. All that clause states is that the High Court confirms appointments. This kind of law, I believe, is quite new for New Zealand, and to be ramming it through under urgency, even though it will provide huge opportunity for the courts to interpret what this Parliament is saying, is a new kind of arrogance that surpasses even that of Dr Cullen, who was certainly not dealt a short suit when it came to arrogance. This surpasses anything that I have seen.

I come back to the fundamental concern I have with this bill, which is that it is a new kind of law, because the object makes it very clear that some of these measures are designed for Māori, yet some of the specific clauses try to pretend that that is not the case. How the courts will balance up the conflicting elements of this legislation and sort that out in the future is something that this Parliament clearly cannot know. For us to be passing legislation under urgency, when we have no idea how a court will interpret what we are doing, is dangerous for the future of our country, and it should be opposed.

I move, That the question be now put.