Foreshore and Seabed Bill

Let me just try to respond as best I can to that sort of farrago of paranoid nonsense, because that is what it actually was.

💬 Dr Wayne Mapp: The Prime Minister said so.

No, the Prime Minister did not say that. The member really has got to stop misquoting people in the House in that way. Clause 11 says that the public foreshore and seabed is vested in the Crown. That then has to be judged against another constitutional fact in New Zealand, which is that Parliament is sovereign, and no Parliament can bind its successor. [Interruption]

I do not see much point in laughing about that. Some of us believe it is a fairly important principle of our constitution. I invite the member to shut up for a minute—if he does not listen at home, he at least should listen here—and listen to what would happen if clause 12 did not say that alienation cannot occur except by a special Act of Parliament or under section 355 of the Resource Management Act. What does the member think would happen? Under this bill, if there was no mention in clause 12 of that, the Crown could alienate public foreshore and seabed by means simply of agreement or sale. All that subclause (2) of clause 12 says is that the only mechanism by which that can be done is under section 355—and, as the member will note, that is subsequently actually amended in a very significant manner so that the only alienation that can occur is in terms of a perpetual leasehold, as opposed to a freehold title—or by Act of Parliament.

But our saying that actually does not change the fact that an Act of Parliament could change that provision in clause 11, in any case. If clause 12 did not exist—and this is where it is a paranoid farrago of nonsense—the reality would be that there would be less protection for Crown ownership. The law is as simple as that on this point. Why members of the National Party keep going into these issues in that form, I do not know. They are actually making fools of themselves amongst the general public who understand some of these things.

Two members are moving entrenching clauses. The point I would make first of all is that this Parliament has only ever passed entrenching clauses on matters where it is actually determining the interests of its own members, and the reason for the entrenching clause is to prevent a simple majority affecting the rights of the minority in that respect in certain parts of the Electoral Act. They are very specific, and they themselves, of course, have been there for a long time, and have acquired a strong conventional status in that respect. We have done it nowhere else, and I do not believe we should start going down the route of entrenching clauses in general. I think they are bad law and should be confined to cases such as the Electoral Act.

In the case of the Green amendment, I am particularly opposed because it distinguishes between a super majority required for an alienation generally, and a simple majority required for an alienation in the context of a Treaty of Waitangi settlement. It does seem to me that that would open up the bill to very strong accusations of having, effectively, an ethnic-based or racist-based element within it. It would have to be across the board, as Mr Baldock’s amendment is across the board. But the Government cannot support that amendment, and, of course, as I am sure the member realises, to pass a 75 percent entrenching clause requires 90 members of the House to vote for it, and therefore, of course, that amendment will actually fail.

Tēnā anō tātou katoa i huihui mai nei i roto i tēnei o ō tātou whare. Greetings to all of us who are gathered here today.

💬 Simon Power: I raise a point of order, Madam Chairperson. Just as a matter of clarification as we head into Part 2, I ask whether it is your intention to have two calls in a row for parties that support the bill, or do you intend to follow the convention of having a speaker who opposes the bill following one from a party that supports it. I would be interested in your view on that.

The CHAIRPERSON (Ann Hartley): The member is quite correct. I did make a mistake. The speaker should have been from the opposing side. I will certainly make sure that that will happen.

💬 Dail Jones: I raise a point of order, Madam Chairperson. I am sorry to interrupt the New Zealand First member. When the Rt Hon Winston Peters was speaking, he was interrupted five times on points of order by the National Party and the ACT party. I would ask that if National members wish to raise a point of order on a matter of procedure, they do that either before a speech begins or after a speech ends. It is simply a matter of courtesy, and I hope that those members would bear that in mind in future, rather than interrupting us all the time.

The CHAIRPERSON (Ann Hartley): The point of order was a correct point of order and it was correctly called at the time. It was also my error.

For the Committee, I would like to go back a little in history. It might refresh the minds of some of us who are in the older age bracket, and some of those in the younger age bracket might learn something today. To an almost purely Māori audience at Whangara on 25 April 1946, Anzac Day, Ngata stated in plain terms his loyal attitude, and also Māori indebtedness, to the British Crown and Commonwealth of Nations. In a speech considered by many to have been one of the most significantly effective of his career, he declared and maintained that although the Māori people had suffered from many injustices inflicted in the past, they as an indigenous race were fortunate indeed to have come into the membership of the British Commonwealth. Although insistent upon the recognition of rights as British subjects that were guaranteed to his race by the Treaty of Waitangi, he never spurned cooperation with the Pākehā. His life was, and had been, devoted to the preparation of his people for full responsibility as citizens. British authority was accepted by our forefathers, and it has given Māori the rights they would not have been accorded under any other.

New Zealanders will own the foreshore and seabed. If we are building a road to somewhere, let us build it together. The road to nowhere is achieved by divisive tactics, choices, and policies. New Zealand First has advocated, and will continue to advocate, policies for one law for all, in order to build nationhood rather than no good. Is that really too much to hope for? The question was asked in this Chamber on 10 November 2004 by New Zealand First leader, Winston Peters.

The beach will not, cannot, and never will be sold to foreign interests. Customary rights for New Zealanders will be protected. Policies of irreversible damage over the past two decades have led us to a constitutional crisis as to who owns our foreshores, seabed, and all their other resources. Those policies were created by former Governments. If we follow along those lines, it will support and confirm the ideological thinking of the leader of the National Party, Dr Brash, that racism exists.

On 27 March 1995 the New Zealand Herald reported Dame Whina Cooper’s concerns about Aotearoa. The view that Dame Whina Cooper had campaigned for all her life, was to bring New Zealand together. All this talk of sovereignty and separatism is contrary to her vision for New Zealand.

The object of this act is to preserve the public foreshore and seabed in perpetuity as the common heritage of all New Zealanders, in a way that enables the protection by the Crown of the public foreshore and seabed on behalf of all the people of New Zealand, including the protection of whānau, hapū, and iwi. It amazes me that as soon as the words whānau, hapū, and iwi are brought out, we are accused in this Chamber of being racist. If I said family, extended family, and the greater extended family, would that change the issue? Would that say that we are not racist?

Port companies will get certainty of tenure. We are confident that with the outcome we have secured, that provision will go ahead. I am confused about where the National Party is coming from. One minute they are telling us of divisiveness that exists, and now that New Zealand First is promoting the law, National is opposing it.

I rise to speak on Part 2, and in my first call on the part to address the issue of my amendment on the table with regard to the entrenchment of clause 12(2)(a). After the speech of Dr Wayne Mapp, I am almost certain that we will have National Party support for that amendment, because he made it very clear that National wants to prevent any future alienation of the foreshore and seabed. So we shall look forward to National’s vote when the vote is taken at the end of this debate.

After the presentation by the member from New Zealand First, I am almost certain that that party, too, will be supportive of the amendment, because its members are known to have been going around the country for some time talking about not selling off the silver in New Zealand. The Rt Hon Winston Peters already said in his speech: “We can’t, we won’t, we will not sell the beach in New Zealand.” So we look forward to New Zealand First’s support, also.

My amendment is simply to alter clause 12(2)(a), so that instead of the clause saying that any part of the public foreshore and seabed can be sold only by a special Act of Parliament, it will require that that special Act is passed by a majority of 75 percent of all members of the House of Representatives. Although it is true—and I agree with the Hon Dr Michael Cullen—that no Parliament can bind a future Parliament, a Parliament can make it more difficult for a future Parliament to alienate the foreshore and seabed.

That is something that many submitters throughout the submission process asked the committee to look into. There was a great deal of suspicion for different reasons on different sides of the issue, and a great deal of suspicion about the Crown’s intentions in taking ownership—suspicion that in future the Crown may be tempted to flog it off for short-term gain. I believe that the amendment I am proposing is clearly in response to that request, and is a reasonable one. I was hopeful that the Government might have seen that also, because the suspicion still remains. If the Government doesn’t support this amendment, then people will be wondering whether it intends to do some backroom deals in terms of treaty settlements.

United Future has no problem with what is now emerging in the bill—the opportunity for a foreshore and seabed reserve to be placed on top of Crown title in order to give a recognition to a territorial customary right—but we would have a concern if a freehold title were being given to Māori, because we have made it very clear that no one is to own the foreshore and seabed. So it would certainly send a very clear signal to New Zealanders if the Government supported this amendment and entrenched that particular clause.

Another part of my amendment would create new clause 114(aa), which concerns the issue of double entrenchment. We would like to get really tough on a future Parliament by not only stating in the Act that the provision has to have 75 percent support, which we all know can be amended by simple majority, but by also supporting clause 114(aa). That would mean that whatever the majority was passing that clause—and I tell Dr Cullen that I understand from my advice from the Clerk it does not have to be 75 percent—the initial clause of 12(2)(a) would be entrenched to that level. The majority could be 60 percent, 70 percent, 90 percent, or perhaps in this Parliament it could be as much as 100 percent, because we have all been hearing speeches—except, perhaps, from the ACT party—that here there is no intention ever to see the foreshore and seabed alienated.

So as this amendment is put on the Table, I hope the Government might reconsider its position. I am confident of the support of National and New Zealand First, and also the Green Party. The Green Party certainly would not want to see the foreshore and seabed sold off, in any shape or form. In fact, it has a similar amendment although, as Dr Cullen pointed out, it allows for a treatment different to mine under the treaty clauses.

I am hopeful we may see my amendment pass. It will mean a great deal. I do not think we need to be hung up on the fact that we are setting a precedent, because this Parliament sets precedents all the time. In fact, we do that any time we really want to; it is just a question of whether we see the matter as being important enough to do so. If we do not pass the amendment, then that raises issues with clause 15, which I will deal with in my next call.

I rise to speak against the last speaker’s proposal that we entrench clause 12 by requiring a different level of voting in this Parliament. That argument has to be opposed for two reasons. The first is that it misunderstands parliamentary sovereignty and the fact that the Government is answerable to the electorate every 3 years. This Government knows that by election time the electorate will appreciate the wisdom of this legislation, and the fact that it is an effective and elegant resolution of a difficulty raised in the Court of Appeal last year.

The second reason why I oppose any such amendment is that traditionally in our Parliament, entrenchment provisions are left for matters of high constitutional significance. The fact that the member suggests this matter is of high constitutional significance reveals a basic misunderstanding of the purpose of the legislation. This is not legislation that deals with deep-seated constitutional principle; it is legislation that clears up the uncertainties in the queries created as a result of the Ngāti Apa decision. That decision, simply, was the expression by the Court of Appeal of the confluence or intersection of the developing aboriginal customary rights law in international common law with our own common law, and with the failure of the Te Ture Whenua Maori Act to provide adequately for where that intersection should occur. This bill is no more than that and no less than that. It clears up those uncertainties in a very fine form, without addressing basic constitutional principle.

Therefore, to entrench clause 12 would be to perpetuate the myth and mistake that many make—that this is major legislation that overturns many constitutional rights and freedoms. We saw that time and time again at the select committee, where many submitters spoke of the Crown not as being the collective body of leadership in this country—the administrative, executive, and political will embodiment of this country—but as being a partisan party to the treaty, as one part in a two or more party debate. So many submitters came to the select committee with the Crown as the other side of the debate. In terms of some discussions, and in litigation, that is correct: the Crown is a multifaceted thing, and in this legislation, as in much legislation, it means more than the bipartisan debate of a court room. The Crown is all of us—all New Zealanders.

That takes to me to clause 11(1), which is perhaps the fundamental premise of the whole bill. Dr Mapp spoke about this clause in his speech. The clause is there to resolve the uncertainty discovered by the Court of Appeal judges in the Ngāti Apa case. They pointed to legislation and referred to the eight or so Acts whereby previously it had been understood that the foreshore was vested in the Crown. But because the terms were not precise and absolute enough, the Court of Appeal considered there was an ambiguity as to the effect of the legislation, which did not relieve the Crown of the burden of aboriginal customary rights.

So clause 11(1) answers the concern expressed by the Court of Appeal. It reinforces what every person in this country knows is the law, except those who are trying to gain an unfair advantage over others. It is what every person last Christmas would have said was the position, and what every person 10 Christmases ago would have said was the position, as they walked along the foreshore. It is a simple statement of understood fact; it is now a legal clarity; and it is a legal, simplistic statement of what the position was always intended to be, and will be hereafter. So it is a statement, not radical in nature but confirming the understandings of lay people, lawyers, and judges.

If I were thought to be wrong on that, one would have to ask where the argument and debate was before June of last year when the Court of Appeal decision was released. No one discussed this matter then, because we all understood what the law was to be. We all understood what the eight Acts referred to in the Court of Appeal decision intended to achieve. We all understood what the Te Ture Whenua Maori Act meant to achieve when it referred to land. We all understand that that legislation referred to land and not to seabed and foreshore—otherwise, it would have been the “Te Ture Whenua and Moana Act”, perhaps. So this bill sets right that which the Court of Appeal discovered was wrong.

This part of the bill that the chairman of the Fisheries and Other Sea-related Legislation Committee has just been explaining does, to some extent, reflect existing law. But it goes further. Indeed, Dr Cullen’s intervention, when he tried to explain why a provision stated not only the obvious but in fact cast doubt on the obvious, I think exaggerated the problem that has been created. Some poor judge some day will probably pour through that contribution to this debate in an attempt to work out whether in fact there was an assumption by the drafters or by this Committee that clause 12(1) did prevent, or tried to affect, a subsequent Parliament and that we wanted to make it clear, or whether there was some sort of developing doctrine that Parliament could bind future Parliaments. I am sure that Dr Cullen’s address on the matter will have helped.

But what is not clear is why this part then goes on and tries to trample all over the idea that the Crown’s ownership is normal, full, absolute ownership by cancelling the Crown’s computer-generated titles. The Minister in the chair, the Hon Dr Michael Cullen, could, I am sure, explain just what is intended by that. Is it some kind of vandal’s assurance—some notion that if we cancel the computer entries that show the boundaries of what the Crown owns, which is just what a title is—that it is a deeply emphatic statement that the Crown never intends to do anything with it? If that is the case, then New Zealand as well as Māori are losing badly by this move.

There is a great temptation in this House to make bold statements about the seabed and foreshore never being available for any kind of alienation. In fact, every community in this country will have projects that will require them to come to this House and get a special Act of Parliament to allow them to finance and achieve outcomes on what is currently public foreshore. The reason is that most of New Zealand’s coast is not the kind of iconic beach that this debate focuses on. It does not provide great fishing spots. Much of it is land that is eroding. Much of it is land where people will want to protect existing boundaries. They will have works that are not just breastworks for marinas or ports; there will be roads to quarry and all kinds of works to undertake that this will complicate—

💬 Hon Pete Hodgson: Below the low-tide mark?

Below the mean height—of course there are. I can think of an area very close to my place in the Wairarapa where the legal road has disappeared into the sea but the actual road being used gets moved probably every 3 or 4 years.

This bill states that even legal roads will disappear if they are not used. It does not state for how long. A road could be blocked for a week. According to this, the Crown could say: “Sorry, you’re trumped—off you go.” Why does the bill not define how long the period of disuse is—because this is a great, fat confiscation to make a political statement?

The Minister in the chair, Dr Cullen, is leaning back looking amused by this—probably because he is thinking: “These are the arguments I made to my colleagues but they were too stupid to listen.” He is probably thinking that this sounds very similar—[Interruption] I see we have stirred Mr Peters into action. He is saying: “These are the arguments that Dr Cullen was making to me but I was too politically cunning to pay any attention because they are simply rhetorical.”

Part 2 is going to be very expensive for communities all over New Zealand. Part 2 states that not only does the Crown own it absolutely but, in response to Nanaia Mahuta, it does not have to have regard to any fiduciary interests. I could not understand Nanaia Mahuta’s speech earlier today when she said that the Crown held as a fiduciary. This bill expressly states that it does not hold as a fiduciary. It holds absolutely as the Crown—in fact, the old-fashioned imperial Crown from the look of it, because I cannot imagine what other purposes it would have held for other than as a fiduciary for the people of New Zealand, but this bill states that it does not.

That will make it much easier for the Crown in defeating opportunistic claims, but why is it that the Crown has to grab all of the existing property interests other than those that are expressly private? Why do local authorities have to turn up, cap in hand, and go to the Minister of Conservation? He is not required to pay them proper compensation.

I have been seeking the call for some time and it is an honour to be given one.

💬 Hon Maurice Williamson: Well don’t waste it.

I certainly will not be wasting it because I have a question for the Minister in the chair, the Hon Dr Cullen, and for the chair of the select committee. Why did they not allow this measure to go through the Māori Land Court process? The only answer that I can conclude is that they did not trust the lefty activists that they themselves put into that court. Why else was it not allowed to go through the full court process? The chair himself said that this is a very simple amendment and it is not as big as people make it out to be. If that is the case, then why not trust the court process to sort it out? Why are we here today under urgency with this kind of process?

💬 Hon Dr Michael Cullen: Is that the National Party position? It’s position No. 5 for today.

The Minister can criticise the National Party, but he has not answered that basic question. Why is it that Māori in New Zealand, who have blindly followed this Labour Government and other Labour Governments for the last 100 years, were not given a simple answer to that question? The Minister in the chair will not answer, but we know what the answer is. It is because it was politically too difficult for them to handle. I remind those members of the old saying: “You can please some of the people some of the time, but you can’t please all the people all the time.”

The Labour Government has tried to have a bob both ways and it has failed. If it were not for Winston Peters and the New Zealand First Party, this legislation would have fallen over because the Māori members of the Labour caucus have been jumping out of the waka so quick it has tipped over, as well. If it had not been for the support of New Zealand First, this bill would not have proceeded.

I say to the Minister and to those other members, if it is a very simple amendment, why is it that we had hui up and down New Zealand for months and months, then we had a select committee process that went on for months and months, then a 67-page Supplementary Order Paper that was introduced yesterday afternoon at 5.30 p.m.—[Interruption] The Minister is disputing what I am saying about the Supplementary Order Paper but I have a copy here and there are exactly 67 pages. I was absolutely right. The Minister does note even know how many pages there are in his own Supplementary Order Paper. Why was that Supplementary Order Paper introduced at 5.30 yesterday afternoon without Parliament being given the proper chance to go through it in the way that it should?

I say to the members of the Māori caucus that they have been duped and their electorates will point that out to them. It will not happen for a while—probably not for a couple of years. I forecast that the real problems hidden in this divisive legislation will not surface for a couple of years, but, when they do, they will remember who it was who allowed this to go through Parliament. I say to them that they still have a chance. One of their colleagues has jumped out of the waka and there is still time for the rest of them. They can jump out of this waka, tip it over, sink it, and finish it. This legislation is not in the best interests of their own people and I appeal to their better judgment to do what is right and hang out for their own people. They sent them here, they elected them, and those Māori members should not let themselves be swept along with the rest of the socialists who are trying to sweep them under the carpet with this legislation.

There are 18,000 kilometres of coastline in New Zealand. As the chair of the select committee said, everybody in New Zealand had an expectation in mind as to who had access. It came about as a result of Queen Victoria saying to Governor Hobson in 1843 that the people of New Zealand, whether they be Māori or European, should have access to the seabed, foreshore, and coastlines, and that has been the case ever since. There is no dispute about where that started; it is absolutely well and truly recorded in the history of New Zealand. Why is it then that at this point in time, because of an oversight in the Resource Management Act—it was not a deliberate misleading of Parliament or of the people of New Zealand—we are here today in urgency debating what the chair of the select committee himself says is a very minor, technical amendment, when really it is just an amendment to the Resource Management Act to prohibit Māori from having what they always thought they had? Why are we doing that? Perhaps the Minister or any other Government member could take a call and clear this up. Why was there not just a simple amendment to the Resource Management Act to stop that from happening?

I will endeavour to help out the member who has just resumed his seat, Shane Ardern, because he has asked a number of questions that I thought would be self-explanatory. If he looks at clause 11, “Public foreshore and seabed vested in the Crown”, it will tell him, if he is not already aware, that the vast majority of New Zealanders—I would say almost 99.9 percent; obviously there will be one exception—want the foreshore and seabed to be in public Crown ownership. [Interruption] The member is contesting that, but I can tell the Committee that if one goes out and talks to New Zealanders they say they want the seabed and foreshore in Crown ownership. This bill delivers that, and that makes common sense to most New Zealanders, who are supportive of that position.

Part 2 determines the rights of access. I ask honourable members whether they disagree with the right to be on the public foreshore and seabed and the right to enter, remain in, and leave the public foreshore and seabed; the right to pass and re-pass in, on, over, and across the public foreshore and seabed; the right to engage in recreational activities in or on the public foreshore and seabed; and that every natural person has access rights in, over, or across the public foreshore and seabed. That is what this bill is endeavouring to deliver, and will deliver by the time it is passed through the House under urgency.

It is regrettable that the select committee could not find the time to overcome the difficulties and report the bill back.

💬 Hon Ken Shirley: The member obviously wasn’t there.

I was not on the select committee—

💬 Hon Ken Shirley: You don’t know what you are talking about.

I know what I am talking about. I think the select committee members should have got their heads around this bill in a far better way than they did. I am well informed on this bill. I have to compliment my colleague Dail Jones, who has done an awful lot to put common sense into it. On top of that, Dail Jones has done an awful lot to appraise his colleagues of the concerns related to it. Maybe I should use the word “awesome” as that is the modern language. I personally compliment my colleague.

I have to dwell on clause 7A, “Existing fishing rights preserved” because at least one member is confused. It means that any individual can go along and fish to his or her heart’s content.

💬 Tariana Turia: Can’t they do that now? What’s changed?

Exactly! What has changed? So why are members standing up and saying that this will not occur? This protects it in legislation. This bill also outlines the rights of navigation over the seabed—[Interruption] My colleague asked about navigation. How ridiculous would it be if we had a ship that could not navigate over a piece of—

💬 Hon Dr Michael Cullen: Seabed—not foreshore.

—seabed and water? I do not think any members in this Chamber would claim ownership of the water, would they?

💬 Dail Jones: Yes.

They might, yes. Effectively, one could not claim ownership of the water because it is ever-changing. It is logical that ownership cannot be claimed of the land that is beneath the water, which is there for the common good. I am surprised that National members have not got their heads around this bill and are not supporting it. I really am. One has only to look—

💬 Hon Dr Nick Smith: We only got it yesterday.

The member is indicating that he needs a little bit more time and then he would support it. Am I taking that from the member’s words?

💬 Hon Dr Nick Smith: Answer our questions.

I think he is getting umpteen answers. I suggest to honourable members that they go and read this bill and get their heads around it. I can tell them that it sits very comfortably with some of the statements that they have been making about Crown ownership of the seabed and foreshore.

💬 Hon Dr Nick Smith: It’s a parliamentary outrage.

The member says that it is a parliamentary outrage. I suggest that he reads this a little bit more thoroughly than he has done thus far.

💬 Gerry Brownlee: We only got it yesterday.

I can only conclude that we have some part-time MPs sitting alongside us, on the National Party benches.

The Green Party also has a number of amendments to Part 2. One amendment is to alter clause 12 and, like United Future, to put in place an entrenchment clause. We will be supporting United Future’s amendment, and hope that if that fails, United Future will support our amendment. However, our amendment has a significant difference, in that it excludes any agreements or special legislation for the transfer of title for treaty settlements. The whole point of this bill has been to completely reconfigure the way that customary rights and potential title in the spectrum of title are available to Māori. Treaty settlements may be appropriate in this area, and therefore we have an exclusion in our entrenchment clause for that.

Another of our amendments is to clause 28. Clause 28 has been changed by Supplementary Order Paper 304. The changes that have been negotiated to that clause—we understand by New Zealand First—have meant that the territorial customary rights for Māori will be virtually impossible to get. The changes have significantly confined the criteria that Māori will have to meet in order to get a territorial customary right. There are two criteria that render this clause effectively useless. The first is that the exclusive use and occupation has to have happened substantially without interruption between 1840 and now. It would be almost impossible to show that those uses and occupations have occurred to the exclusion of all others.

If everyone in the whole country has been working on the basis that they can go anywhere, anytime they want, then it will have been impossible for anyone to have kept people from general access to those areas of land. Yet Māori have to prove that not only have they continued to use and occupy that same area for the same purposes since 1840, but that they have been able to exclude others from it. It is an extremely high test. There is no justification for that, and it will be virtually impossible to prove. So it is making it very, very difficult for Māori to get through that particular hurdle.

Then, of course, that same little subclause restricts the activity to what was happening in 1840. The select committee heard evidence from iwi and hapū who talked about the kinds of sharing, manaaki, processes that have happened over time where coastal iwi would grant certain rights to inland iwi for the purposes of customary activity on the foreshore and seabed. If, under tikanga Māori, those processes have happened since 1840, then the people who have those customary Māori tikanga rights will not be able to exercise them because New Zealand First wants to keep Māori static as they were in 1840. New Zealand First and its Māori MPs want to keep Māori as savages—as natives—in their own land. Tikanga Māori is entitled to as much development and progression as any other culture in this country. New Zealand First is keeping us from being able to develop our customary rights, to develop our tikanga Māori, to engage in the customary tikanga processes that we have been engaging in since mai rāno, yet it continues to keep us down. New Zealand First wants us still in grass skirts and in the museum.

If the concern is to make sure that those customary rights are legitimate, there are other ways of making sure. Māori do not need to be continually confined to the existence we had in 1840. What is the point? We are continually told that we have to be modern people in this new technological age. We are doing that all the time. We are meeting those expectations. We are managing ourselves in those ways. We are achieving and excelling in the modern world, yet New Zealand First and the Labour Government want to keep us static and stuck in 1840. This clause is an absolute disgrace. It is fundamentally racist. New Zealand First and the Labour Government are complicit in keeping us stuck in 1840. The Green Party will ask for the removal of that clause.

I rise to address the point raised by the previous speaker from the Greens relating to proposed new clause 28 and territorial customary rights. Her presentation of the issue expressed a common, fundamental misunderstanding about what issue this bill addresses. The bill, in fact, addresses the issue that was before the Court of Appeal: the nature of common law customary rights. The basis on which the Ngāti Apa people brought their application to the Court of Appeal was common law customary rights. The Court of Appeal addressed those common law customary rights, not treaty rights.

The difficulty has been that most people do not understand the nature of common law customary rights. That is why the Court of Appeal said that it felt that, in the circumstances of New Zealand—even though it called into question whether the foreshore and seabed had been vested in the Crown, and therefore quite legitimately there was a right to pursue whether the common law customary title still prevailed—there would be few cases where, under the common law test, there would be proof that customary title still prevailed. In most instances under that test, it had been extinguished by events since 1840. The way in which those issues of extinguishment have been dealt with in this country—if they were not done in the correct way of redress—has been through the Treaty of Waitangi. That is why the 1840 date becomes of such significance.

I perfectly accept that sovereigntists on all sides of the argument wish that we did not have the Treaty of Waitangi, because their argument would then prevail. But the fact and reality with which we deal is that we do have the Treaty of Waitangi, and this issue cannot be considered without putting it into the context of the treaty.

💬 Dr Lynda Scott: Why not?

Because the common law customary rights have been addressed by the Treaty of Waitangi. Where they have not been addressed by the Treaty of Waitangi, then the common law test prevails. It is a misunderstanding as to what the common law test for customary title is that has been an obscuring factor throughout this entire debate.

For those who have bothered to read new clause 28—and I say as an aside to those who think there is no explanatory note that there is, and members should read it if they cannot be bothered to read the whole provision—the important point to note is that the definition of the criteria to establish a territorial customary right is founded in the common law jurisprudence. The clause reflects an analysis of both the Canadian and Australian jurisprudence, and also takes into account the local context since the 1840 date. If we look through the provisions relating to exclusive use and occupation, we see that they are the essence of the common law test. The fact that we have contiguity is an essence of a common law test. It has been, if one likes, widened and broadened through the inclusion of words like “significant”, which means that the contiguous area does not have to be made up of exactly the same amount of land. We have tried to take account of the local circumstances so that we get a law that can work.

The people who bring claims under this provision will know precisely what the criteria are and what factors they have to address to be able to go to court to get an order that a territorial customary right exists. Once that order is made—if it is—on the facts set out in the claim, then the provisions provide for redress. I know that members will discuss that redress in the debate on another part.

That was an extraordinary contribution from Margaret Wilson, a person who used to give law lectures about unbridled power—[Interruption] Old Winston Peters here changes his tune to suit himself. He gets to his feet and cries constitutional outrage when it suits him, but suddenly he is in the club. He is in bed with Margaret Wilson, trying to push this legislation on to New Zealanders without any sort of proper public process.

I refer, in particular, to proposed new clause 7A, which shows how this Government talks with a forked tongue. On the one hand—

The CHAIRPERSON (Ann Hartley): I ask the member to please be seated. We had a ruling on that this morning. “The Government” and “a member” mean the same thing. I ask the member not to use that phrase.

I wish to say that there are two different songs being sung. The Māori caucus is telling its constituency not to worry, because 10 percent of New Zealand’s coastline will be set up in special foreshore and seabed reserves. That is what it is saying. That means that the control of 2,000 kilometres will be transferred from democratically elected local and regional councils to iwi. Iwi will be running it. On the other hand, others are saying that it will be so difficult to get a foreshore and seabed reserve through the legal tests that Local Government New Zealand and other New Zealanders should not worry, because there will be a negligible number of reserves. Which view is correct?

💬 Hon Dover Samuels: So what?

I ask Dover Samuels whether he has been given a reassurance that 10 percent of the coastline will be in foreshore and seabed reserves. Could some other Labour member tell me whether what is on the front page of the New Zealand Herald, which states that 10 percent of the coast will be in foreshore and seabed reserves, is correct? Is what Labour’s Māori caucus saying correct?

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

Let us read it, then. It states: “The Māori caucus believes …” that the foreshore and seabed reserves “… could yet cover more than 10 percent of the coastline.” Is that what New Zealand First members understand? There is silence. They do not know. We are, under urgency, being asked to introduce a completely new concept—foreshore and seabed reserves—and we have been told by the Māori caucus that they will make up 10 percent of our coastline. That is hugely significant.

💬 Hon David Benson-Pope: The member has been drinking that V stuff again.

Can Mr Benson-Pope answer me? Can he simply answer the question? Will those areas make up 10 percent?

💬 Hon David Benson-Pope: Calm down.

He simply will not answer the question. He wants to make all sorts of personal accusations and irrelevancies, but he is not prepared to debate the bill. The Labour Party is delivering a con job. It is telling Māori one thing and the rest of New Zealand something different. That will not do. I will give a very practical example. This bill states that, somehow, fishing rights will not be affected. Let me give members a practical example. In my area, Nelson, Māori who claim ownership of the Wakapuaka estuary have erected a gate. That is perfectly possible under these new provisions for foreshore and seabed reserves. It is quite possible.

💬 Rt Hon Winston Peters: Under the water?

The member here is chipping in. He would not know. As a consequence of stopping people from being able to launch their boats at that site, those Māori effectively stop fishing rights.

💬 Rt Hon Winston Peters: So it’s on land?

Winston Peters does not know where Wakapuaka is, and he does not know about the erection of the gate. The issue has been on TV and is the subject of a petition. If the member cannot sort that out, I cannot solve his problems. The fact is that if one can erect a gate and stop people from launching their boats, that will control their fishing rights.

So this new clause 7A, which states that nothing in this legislation will affect people’s recreational fishing rights, is not worth the paper it is written on. Of course, people will be able to erect gates, control who gets the key, and indirectly control the fishery.

💬 Government Member: That’s not correct.

Why is that not correct? Members opposite cannot explain, because they are wrong.

What a sad, mindless, leaderless rabble the National Party has become. Right there, we heard Nick Smith and the National Party supporting the “Freedom to Roam Bill”. One can walk on anybody’s land—

💬 Hon Dr Nick Smith: Foreshore!

No, that gate is not underwater. That gate is on riparian land. [Interruption] I ask him to sit down. Madam Chairperson, he cannot do that. Can I start again? I started, and the member stood there and shouted at me.

The CHAIRPERSON (Ann Hartley): Carry on.

What a mindless, leaderless rabble the National Party has become. Nick Smith got up. He would not tell us whether the gate was underwater.

💬 Hon Dr Nick Smith: It’s on the foreshore.

Oh, it is on the foreshore. No, it is not. It is on riparian land; it is not part of this bill. I tell members not to trust the National Party when it comes to land.

💬 Gerry Brownlee: I think the speech is ridiculous, but my point is that we are not able to stand up in the Chamber and say that a member is lying. That would be unparliamentary and out of order. How can it be in order for a member to so distort the contents of this bill to make his points?

The CHAIRPERSON (Ann Hartley): The member will be seated.

💬 Gerry Brownlee: Mr Peters knows full well that the foreshore goes to the mean high-tide mark—

The CHAIRPERSON (Ann Hartley): The member will be seated.

Gerry Brownlee:—and there are months in the year when it is dry land.

The CHAIRPERSON (Ann Hartley): The member will be seated.

💬 Gerry Brownlee: There are thousands of kilometres on the foreshore, and if he has not worked that out, he should get out of the Chamber and read the bill he is supporting.

The CHAIRPERSON (Ann Hartley): The member will now leave the Chamber. He was told to sit down three times. He will leave the Chamber now. He was ordered to resume his seat. I was ruling on that.

Gerry Brownlee withdrew from the Chamber.

💬 Simon Power: I raise a point of order, Madam Chairperson. We find ourselves in a difficult position at this point, for this reason: during the course of Mr Brownlee’s point of order—and I am not disputing your ruling—prior to you asking the member to resume his seat, Mr Brownlee was met with a number of comments from New Zealand First members. You have ruled on several occasions since the Committee stage commenced that points of order are to be heard in silence. When Mr Brownlee was interjected upon during his point of order, he retaliated in sort. He has now been asked to leave the Chamber. We do not dispute that ruling, but we now find ourselves in difficulty as to what members who take points of order are to do in future if they are interjected upon by other members of Parliament contrary to your initial ruling. I seek your advice on that matter.

💬 Dail Jones: Madam Chairperson, I have raised this issue before, and it is appropriate to this case. The last time the Rt Hon Winston Peters was speaking, just before 1 o’clock, he was interrupted five times by National and ACT members. This time he got up to take a call and had barely started when he was interjected upon by a member, Nick Smith, who was at the Table. He had barely continued his speech when Gerry Brownlee interrupted him.

Madam Chairperson, Gerry Brownlee was on at least his fourth card from you today when he was finally sent out. He should not be allowed to vote on this legislation if this sort of thing continues. I ask you to get the National Party under control. They are leaderless in this House, they are clearly a rabble, and they should not be allowed to continue in this way. That is why we have disorder—[Interruption] The member Ken Shirley is interjecting on me as I am speaking on a point of order.

I warn members again about speaking during points of order. Mr Brownlee was warned several times to sit down. He never raised a point of order. He was being brought to order by the Chair. It was nothing to do with a point of order; that is why he was sent from the Chamber.

I will also rule on Mr Jones’ contribution. I warn all members about interrupting members’ speeches with points of order that are not points of order. That was a debatable point. I warn members again about that. Dail Jones is quite correct in his point of order—that has happened throughout this debate.

I move, That the Speaker be recalled.