Foreshore and Seabed Bill

Can I start again? That is the fourth interruption. [Interruption]

💬 Hon Dr Nick Smith: I raise a point of order, Madam Chairperson. I just heard an interjection made by Mr Paul Swain, in which he referred to the deputy leader of the National Party by using a totally unparliamentary phrase. I ask that he be asked to withdraw it. [Interruption] Whoever it was directed at, it was totally unparliamentary.

The CHAIRPERSON (Ann Hartley): The member will stand, withdraw, and apologise.

💬 Hon Paul Swain: I withdraw and apologise.

Can I start again?

💬 Hon Bill English: I raise a point of order, Madam Chairperson. This is with no reference to the member who wants to speak. Two things have happened at once. One was the use of unparliamentary language by Mr Swain, and I presume your request for a withdrawal and an apology was for that. The other thing that occurred was that Mr Swain continued to talk while you were on your feet and dealing with the point of order. That is the matter that the Speaker has just backed up your previous ruling on, and I suggest that you deal with that situation, as well.

The CHAIRPERSON (Ann Hartley): The member has withdrawn and apologised. I would say to all members that during the time that I am speaking, there must be silence.

Can I start again?

The CHAIRPERSON (Ann Hartley): Yes.

As I was saying before I was so rudely interrupted, never has the National Party been such a mindless—

💬 Hon Ken Shirley: I raise a point of order, Madam Chairperson. This is a procedural matter. When you said the member could start again, does that mean he can start his content from the beginning, or does the clock start again?

The CHAIRPERSON (Ann Hartley): It is at the Chairperson’s discretion to rule on that. I have ruled that the member will start again.

After six interruptions, I want to say that the National Party is a mindless, leaderless rabble—and that demonstrates it. A famous American jurist said that it was an offence to cry fire in the theatre when there was no fire. Today and yesterday the National Party has been making all sorts of allegations, and not one of them is remotely correct. Nick Smith, of all people, puts up a gate that is apparently underwater, and it stops people from gaining access to the water. That is really appalling.

I say to the Greens that for the first 6 years they were here in Parliament, they had no Māori member. That is how much they thought of the Māori people, and what occurs to me is that they still have not got one. Up got that member, and she said that she wants to add an entrenchment clause to clause 12, “Public foreshore and seabed not to be alienated”—the non-alienation clause. That is illusory. It is a mirage, and it is hallucinatory. It is ersatz law. It is Clayton’s legislation. It is placebo politics—that is what it is. It is the kind of thing that one has when one does not have anything. The Green member wants to have an entrenchment clause, so she proposed an entrenchment clause to make it two-thirds or three-quarters of Parliament. Everybody will feel very safe, will they not? All of Māoridom and all of New Zealand will feel very safe. She said that the area would not be able to be alienated if there was an entrenchment clause—except that any fool knows that one first of all attacks the entrenchment clause with a bare majority of Parliament, which is 50 percent plus one. Out it goes, and there goes one’s protection—it is all over in the space of an hour. That is the kind of assurance that she gives to Māori—those who are on the dope, of course; the ones who are not working. But the Māori who think and work, and who have slaved in this country for a long time, will not be fooled by that. It is of no comfort to them whatsoever to argue for an entrenchment clause, and I am ashamed to think that a lawyer would put it up as a proposal.

💬 Hon David Benson-Pope: Didn’t go to Otago.

No, I think she was at Waikato University. I could not help but comment, when I saw the protest during the speech of the Hon Margaret Wilson, that another European was flying a flag up there in protest, in support of Māori. It is a sort of modern style of the white man’s burden in 2004. The sign that the protestor had stated: “Another colonial land grab.” So sea is now land, and land is sea—members should try sailing on that! This country needs to be given better than that. It does not need to have stupid people out there misleading Māoridom or, for that matter, the rest of the country. The National Party is on one side, scaremongering and making all sorts of allegations, not one of which is true, and on the other side are Māori radicals who are making extremist plans, not one of which is true, either. So where were they at lunchtime? I wanted those two groups of people—the Green Party and the Māori Party, and the National Party—to get together, because they cannot go on arguing around New Zealand. On the one hand, National argues that Māori have everything, and on the other hand the Māori Party says that they have nothing. We are bigger than that, surely. Surely, when we were at the battle of Monte Cassino, not one veteran would have ever thought that we were dying for exclusive rights in our own country. That is the reality.

I am sick and tired of Māori who have a record of selling land in their background coming along to those of us who do not, and preaching to us about keeping our whenua and our rights to our property. It is an outrage that those people get away with it because there are journalists who know no better. It can only be out of ignorance that those people get so much coverage—because journalists do not understand their background. Well, we are not taking it—not from them. New Zealand First is a party that produced six of 13 members of Parliament, not because they are Māori or anything else but because we believe in one law for everyone. We believe in fair representation. We do not just talk about it; we do it—unlike the Green Party, which could not find a Māori for 6 years, and then found that member. I mean, that is the point. Does she stand up for Māori? No. The most grievous thing that is upsetting the Māori people today is drugs, and what does the Green Party have to say about drugs? Well, the Greens are for them. They are for the legalisation of drugs.

I will endeavour to bring this debate back to Part 2, which we are intended to be debating. Part 2, which includes clauses 6 to 27, concerns the rights of access. Clause 6 itself provides for a very qualified access, and states that: “ ‘access rights’ means—” etc., but then it goes on to state in subclause (3) that: “The access rights conferred by subsection (2) may be exercised subject to any authorised limits, including prohibitions, on access that are imposed by or under an enactment, including a notice in the Gazette” issued under these provisions.

So what we have is the illusion of access. Of course, that is what the Labour Government has been selling this legislation on. It has been saying that it is all about certainty and access. There is no certainty, there is a lot of uncertainty, and access is not guaranteed.

Again, the new clause 7A, “Existing fishing rights preserved”, provides that: “Nothing in this Act affects any rights of fishing recognised, immediately before the commencement of this section, …”. But, as every Kiwi knows, it is not just the action of fishing; one has to gain access to one’s fishing spot. If one cannot get on to the beach because a wāhi tapu has been declared, or one cannot go to a particular rock, then one cannot fish. So access is denied, and it is quite wrong to imply in clause 7A that all existing fishing rights are preserved, because they are not. Under this bill, they are not preserved.

On the front page of this morning’s New Zealand Herald, the Labour Māori caucus tells us that up to 10 percent of the coastline—and that is just their first bid—will be in those foreshore and seabed reserves, with committees of guardians and wardens guarding spiritual beliefs on our foreshore and seabed. Who believes for a moment that ordinary New Zealanders will have unrestricted access to go fishing in their preferred spot under that sort of regime? They will certainly not, and 10 percent is just the first bid on day one.

We then turn to clause 13C, which states that all lands reclaimed are to be vested in the Crown. I would like the Minister in the chair to tell us the logic of that. Land is reclaimed for only one purpose, and let us be quite clear that there is a very difficult statutory process to go through to get permission to reclaim land. One does not get it just like that. One would have to apply for a resource consent and get all sorts of dispensations. It takes several years, and some people take up to 10 years, to get consent to do a reclamation. So one runs the gauntlet. Reclamation is done for a specific purpose, whether permission is sought for a marina, for a port company, or for some other legitimate use. But once reclamation has been approved, it is land. So why, henceforth, vest that title in the Crown? What is the point of that? There is just no sense in it at all.

Equally, I would like to see our port companies with their own clear title. They are commercial businesses. As a trading nation, they are the access to our nation for our imports and also the exit point for our exports. We want good commercial businesses running our ports. We do not want them run by the Department of Conservation, but that is really what this bill is proposing. Of course, the Greens were arguing that we should have free access round our ports. What a load of nonsense! We would be in breach of international covenants following 9/11, where we must specifically exclude free access and fence our ports so that we can guarantee the security of our containers.

So there are very good commercial reasons why we need clear title, clear property rights, and to be able to exclude access in the foreshore and seabed for specific areas. But, no, this legislation states that it will all be vested in the Crown, and that the Department of Conservation can look after that. What absolute nonsense! So it is not just Māori rights that have been trampled here. There are other clear commercial property rights that are being denied and stripped away.

I would also like the Minister in the chair to explain the bit about accretion, because it is not clear what the intention is there.

I want the Committee to reflect on this. The Minister in charge of the bill, Michael Cullen, has said that this is a very simple issue. He said that members should read clause 11(1), and he quoted part of it, which provides that: “the full legal and beneficial ownership of the public foreshore and seabed is vested in the Crown, …”. The Minister said: “It’s as simple as that, folks. That’s what we are doing here today.” Winston Peters then got on to his feet and said: “We have saved the country. We have brought everybody together, and what we have done is we have vested the foreshore and seabed in the Crown.”

Well, I ask Parliament and the people who are listening to this debate today to reflect on this: if it is that simple and takes just those few words, then why are we dealing with a bill that was initially 69 pages, another 67 pages of a Supplementary Order Paper, another eight pages of another Supplementary Order Paper, some notes that go for 138 pages, and then also some explanatory notes that take up a further 59 pages? Why does it take that much paper, that many words, that many clauses, and that many issues in order to vest the foreshore and seabed in the people? If it were just that simple, I would have thought it would be only one clause.

The problem we have is that, again, this Parliament is doing to itself and the country what it never should have done. It has written a whole lot of legal jargon to put in place something that is simple but will become so complicated, that we will spend years and years unravelling what this Government, the Labour Party, and New Zealand First are doing to this country today. I say to the people to look at this legislation and at all the clauses in this bill, and worry about how complicated it is. The bill is seriously complicated and divisive.

It is not just a simple vesting of the foreshore and seabed in the people. If it were only that, we certainly would not be here today opposing this bill. It is all the add-ons and the hidden stuff in the Supplementary Order Papers—the 67 pages of add-ons that have come back from the Fisheries and Other Sea-related Legislation Committee—that the Labour Party, Winston Peters, and New Zealand First are foisting on this country that we need to be worried about today. They have created such a complicated law around such a simple issue that we will be fighting this all over the place—in the courts, out in the public, in the pubs, and on the beaches—for years to come.

Let me say this to my colleague from the north Dover Samuels. He knows—as I do—that there are already some people up in the north who want to exclude people from the beaches. Already we have seen it happen, and I bet members and wager that this summer there will be more instances where non-Māori people are excluded from the beaches, because—

💬 Dr Wayne Mapp: Karikari.

At Karikari Peninsula, it is happening right now. White people—non-Māori people—cannot drive up to Karikari Peninsula. They are excluded from it. It is a public beach and they are not able to go on it. They are shunted off, bullied off, and railroaded off. Believe me, that will happen more and more as this issue starts getting debated over Christmas and as Māori people’s expectations start getting more and more heightened. When they look at this bill they know that the Government is giving them something extra over and above non-Māori.

I say to the public, to the Labour Party particularly, and to Winston Peters and his caucus that they should not be doing this to New Zealand. It is wrong. I know a number of the New Zealand First members will have genuinely tried to get it right. I accept that. Unfortunately, they have missed the bus, they will cause strife across the country, and they will cause us to have issues whereby non-Māori people will be excluded from their luxuries.

I heard my name mentioned by my colleague John Carter, in terms of some of his concerns that perhaps somebody, foolishly, would seek to block access to the beaches when, in fact, public access is provided for. He knows very well that if there is public access to the beach, anybody who blocks that access breaks the law and could be, in the case of Northland, one of the first invitees to the Ngāwhā prison. Let me make it quite clear. This bill provides for public access for all New Zealanders, Māori, Pākehā, or whoever, to go down to the beach at Christmas time with their families and do the things they have been doing for the last 140 years. That member knows that if there is public access, then any clown—and I have a few of them up there in Northland—who wants to block public access to the beach will be removed by the police, as they should be. I warn them of that. My colleague John Carter used to be the clerk of the Hokianga County Council and we go back a long way in terms of by-laws. We know that if anybody blocks access along a public road, it will be pōkarekare ana for them.

I want to bring up a couple of things. Ken Shirley talked about 10 percent. I am glad he knows his figures. I say to Mr Shirley that determination of territorial customary rights will be done by the High Court. The High Court will determine whether a Māori whānau or hapū is entitled to an aboriginal title that may reflect territorial customary rights, and the negotiations that go on from there are spelt out in terms of the redress in the bill. It is not for anyone to say whether they will get 10 percent, five percent, or two percent.

💬 Hon Dr Nick Smith: What do you say about this in the newspapers?

Perhaps the member should read the births and deaths column instead of reading the front page. He might understand a little bit more. There is a births and deaths column on the back page of the New Zealand Herald. He should read that and he will find out a little bit more; he will be educated.

Members of the National Party who have been defrosted on coming out of the mortuary always froth a bit at the mouth when it comes to things to do with Māori, especially when it is to do with recognition of Māori customary rights. All of a sudden their gums begin to froth up. Some people begin to defrost and some do not; some are probably there forever.

When one is talking about Māori customary rights, one is actually recognising a covenant—something that has been recognised right around the country. Members are jumping up and down, and I hear members of the Green Party complaining about thresholds and benchmarks in terms of being able to obtain a customary rights order. I tell them that the issue is one that relates to whānau and hapū who have had a traditional and customary relationship with the foreshore and seabed for a long, long time. It does not relate to Māori who have been sleeping under the marijuana plants and smoking a bit of hooch, and who do not know what they are talking about.

💬 Metiria Turei: I raise a point of order, Mr Chairperson—

I am not referring to anybody in this Chamber.

💬 Metiria Turei: I take personal offence to the reference about people sleeping under marijuana trees, which was a reference to the Greens. I ask that the member be required to withdraw and apologise for that unnecessary and very derogatory slur, both against us and against those who may be homeless and sleeping under trees. It shows his clear disregard for the people of this country.

The CHAIRPERSON (Hon Clem Simich): I thank the member for raising that. I did not take it that that was a reference to anyone in the Chamber, or to any group in the Chamber.

I can assure the member that if I had referred to the Greens, it would have been clear. I was not referring to the Greens. If they have a conscience about that, it is their problem.

Those who live beside the sea have a genuine right of application to the Māori Land Court and the High Court to have their territorial customary rights recognised. Someone living in Australia who has become Ngāti Rānana—“Ngāti Australian”—has no right at all. They have no basis for rights. I make that point loud and clear. Those rights are not de facto territorial customary rights. There are people who are genuine, the whānau and the hapū who have held those customary rights mai rā anō. They have to be given opportunities under this legislation—and the opportunities are there.

The legislation gives access, and that is not only to the Māori Land Court. I hear some of these bush lawyers saying that there is no judicial process open to Māori. What is the Māori Land Court? That is part of the judicial process. Genuine people have to be given access not just to the Māori Land Court, but also to the High Court. They also have that avenue for obtaining territorial customary rights.

I say again to those who think they can go along with a bus ticket and get a territorial customary rights order, to forget it. People have to be genuine; they have to have ties to the land. There are benchmarks and thresholds they have to prove, and if they prove them they will get their territorial customary rights.

This debate is on Part 2—which is something we may or may not know from the rhetoric coming from on the other side of the Chamber—and it deals with rights of access. First, I will comment on something that Russell Fairbrother said earlier in the day. He said that everybody believed that the foreshore and seabed was vested in the Crown. I do not know whether a significant number of Māori would support him on that contention, because their reaction to the Government’s response to the Court of Appeal decision suggests they had always thought otherwise. However, as I have said, this part deals with rights of access, and it is the part in which the minority Labour Government and New Zealand First are trying to convince New Zealanders that their rights to our beaches are confirmed, now and into the future. I ask the Hon Dover Samuels whether that will apply to the beach up at Matauri Bay, and the Rt Hon Winston Peters whether it also applies to his beach at Whananaki. Perhaps those members will give their answer in their contributions further along the way.

As I said yesterday, the Government cannot have this both ways. It cannot on the one hand say to Māori people that they should not worry and that their mana is protected, then on the other hand say to all other New Zealanders that their access to beaches will be free and unimpeded. That cannot hold. That is not a sustainable proposition. If it is, then I would like Mr Peters to explain—because I do not think the Minister in the chair, the Hon Paul Swain, will tell me—how that position or postulation can be sustained. I do not see how it can be. As further evidence of that—

💬 Rt Hon Winston Peters: What about Lake Taupō?

Everybody can go to the beach. The bed is vested in Tuwharetoa, but everybody has access to the beach. There is no problem whatsoever. But we are not talking about Taupō, we are talking about Whananaki and Matauri Bay.

However, I do have a question that revolves round the assurance that the access that the Government and New Zealand First are trying to give New Zealanders will be unimpeded. I ask how that lines up with new clause 115A set out on Supplementary Order Paper 302—a clause that I think could equally be called the “Tainui clause”. It states: “(1) To avoid doubt, nothing in this Act (a) limits or otherwise affects the validity of an agreement entered into between the Crown and a claimant group to settle an historical Treaty of Waitangi claim; or (b) fetters the ability of the Crown to enter into any agreement with a claimant group in the future to settle an historical Treaty of Waitangi claim.”

In new clause 2A, “Object”, the Government is saying to New Zealanders that they should not worry and everything will be OK, mate. Clause 6 states something similar, and new clause 12 states: “(1) Despite any enactment to the contrary, no part of the public foreshore and seabed may be alienated or otherwise disposed of.” What do those provisions mean in the context of new clause 115A? On the face of it, it looks from this clause as though there are instances where the foreshore and seabed will be disposed of, and will be disposed of in this instance in pursuance of the settlement of claims. That in itself may be OK, but it shows the cynicism of this Government and of New Zealand First, when they say: “Everything will be OK, mate.” What is it Mr Peters says? “We fixed it.”? Is that what he says? Well, actually, it has not been fixed. When the Court of Appeal decision came out, the public reaction was that it expects the foreshore and the seabed to be vested in the Crown.

All I can say to the member preceding me is that she should read the fine print. If she goes on to read clause 6, “Right of access”, she will see the specified limits in new subclauses (3) and (4). She has raised a whole lot of issues about hidden, secret, access agreements. The limits are not secret. They are upfront in those subclauses. If she reads the clause, she will see that access is granted to all New Zealanders to be able to go to the beaches. However, the fine print in the subclauses sets out justified limitations in terms of that access. So it is no secret. It is right there in the bill. Clauses 6 and 7 are really the points of agreement that all New Zealanders, Māori and Pākehā, came to: that we should all have access to our beaches and that navigational rights should be protected. That is what clauses 6 and 7 are about.

One of the members spoke earlier about new clause 7A, “Existing fishing rights preserved”. The point about new clause 7A is that it makes it absolutely clear that all the issues concerning fish, under other bits of legislation, still stand. Nothing in this bill affects that.

The substantial part of my small contribution on this part relates to clause 11—and the point was made by John Carter under subclause (1). Clause 11 is the clause that, for many submitters, provided a bit of tension. It is worth reading out: “On and from the commencement of this Act, the full legal and beneficial ownership of the public foreshore and seabed is vested in the Crown, so that the public foreshore and seabed is held by the Crown as its absolute property.” The submissions contain views that this should not be the case. However, again—I made the point earlier in the debate——the natural extension of that argument is that the Crown would not be able to uphold any fiduciary obligation to any citizen in New Zealand, including Māori. It follows, therefore, that this is a necessary part.

This is not the first time Parliament has addressed the issue. In fact, in the first reading debate Dail Jones raised the issue that the Foreshore and Seabed Endowment Revesting Act actually attempted to do this, but it did not do it properly. He said at the time that no Māori member participated in that debate. I went through the contributions, referring also to the submissions on the bill. Notably, three Māori groups made a submission on the Foreshore and Seabed Endowment Revesting Bill: the New Zealand Māori Council, Awaroa ki Manuka, and the Huakina Development Trust. All the submissions from those Māori groups actually agreed with Crown ownership. However, they said that then sets up the opportunity for Māori to legitimately argue their treaty claims or treaty issues. There was some reflection in their submissions on the hope that at some point an opportunity would arise whereby the Government would recognise their customary interests in full, and see the return, perhaps, of parts of their tribal domain where they exercised their customary interests. Notably, Awaroa ki Manuka and the Huakina Development Trust raised those types of issues.

So clause 11 is an important clause. It is probably the most lucid part of this bill. We all need to be clear about why there is provision for other parts in recognition of customary rights. Basically, subclauses (2) and (3) make it important to ensure that if one is going to have full, legal, and beneficial ownership in the Crown, one must make provision for Māori customary rights. It has long been my view that vesting ownership in the Crown would enable the radical title of the Crown to coexist with a native customary title in accordance with tikanga Māori. That has long been my view. Since this debate has emerged, my thinking on that has developed further. This part contains a number of important clauses that affect Māori,

In finishing my small contribution, I refer to new clause 12, “Public foreshore and seabed not to be alienated”. I think that is a clear affirmation of the Government’s intent, and it is a good part of the legislation.

The Greens have proposed two major amendments to Part 2, the first being to clause 12, the entrenchment clause. New Zealand First will not be supporting this clause, because it is not that concerned with the potential sale of land—in particular, the sale of seabed and foreshore land. One of the criticisms that Winston Peters has made of the entrenchment clause is that it will not have any effect. I say to him that it may be that entrenchment is largely symbolic in the minds of New Zealanders—that it is a symbolic gesture showing that this Parliament takes the restriction on the sale of foreshore land seriously, and that it is prepared to use all its mechanisms to make sure that it cannot happen. I have no doubt that we cannot stop a Government in the future from doing whatever it wants, but even if, at worst, it is a symbolic gesture, it is critical for New Zealanders to know that this Parliament will not sell-on any of the foreshore and seabed. New Zealand First’s refusal to support this clause clearly demonstrates that it is not prepared to support even a symbolic act that will enable New Zealanders to feel confident that this Parliament, including New Zealand First, does not want the foreshore and seabed to go into foreign ownership.

The Greens, of course, have been very clear to follow their principle with practice. We have petitions in place at this very moment to stop the sale of land to foreign interests, because we believe that our land is finite and that it needs to be protected and kept in New Zealand hands for New Zealand people. This entrenchment clause will make that clear to the public of New Zealand. Clearly, New Zealand First is simply not prepared to put its money where its mouth is and support the absolutely best possible protection that this Parliament can provide in order to make sure that our foreshore and seabed cannot go into private hands.

The other major amendment we are proposing is to clause 28. Margaret Wilson said that the contiguous land test in clause 28 is when one can get a territorial customary rights order only if one has ownership of the land that borders the foreshore and seabed, as is part of the common law. She knows she is wrong about that. It is not in the common law. Paul McHugh, who gave evidence for the Crown at the Waitangi Tribunal, said at the Fisheries and Other Sea-related Legislation Committee that it is something the court should take into account and that it is a consideration it will have regard to, but that it is not necessary to make it a condition of providing a territorial customary rights order. He never said at all in the select committee that it was part of the common law. He never said it was absolute that one had to own the land bordering the foreshore and seabed before one could make a claim of customary exclusive use and possession over the foreshore and seabed itself.

This provision is a clear deception. It is not right that it is in this bill; it is absolutely unnecessary. This bill could make the court give consideration to contiguous land ownership. It does not need to make it a condition. Making it a condition means that very few—perhaps two or three—iwi throughout this whole country will be able to get a territorial customary rights order. It will be virtually impossible for iwi, whānau, and hapū across this country to meet those tests, because they are so stringent and unnecessary. It is unbelievable that that clause could have been put forward by Dail Jones, who himself has some legal knowledge, who heard and understood the submissions from Paul McHugh in the select committee, and who recognised that contiguous land ownership might be a factor to take into account, but that it certainly should not, and did not, have to be an absolute.

There is a whole list of other real problems with the way that clause 28 has been reconstructed after the negotiations between Labour and New Zealand First. The real difficulty is around the proof needed to show that one can exclude others and could exclude others. It was argued in the select committee, as well, that one did not need proof that one did exclude people, but proof that one had the right to exclude. Those are two different things. We live in a colonised land. Māori will find it extremely difficult to show that they have had any control over other people using their land—particularly the foreshore and seabed—over time, when the whole of the country has been under the misapprehension that it has been open ground, owned by the Crown, for so long.

In listening to the debate—

💬 Larry Baldock: I raise a point of order, Mr Chairperson. I just respectfully point out that this debate is a bit like watching a ping-pong game, with the calls going from one side of the Chamber to the other and back. As a member of the Fisheries and Other Sea-related Legislation Committee—and I also represent our party, which is small in number—I do want to make a number of calls on this important part of the bill. I would just ask for your consideration in that.

The CHAIRPERSON (Hon Clem Simich): I am quite aware of that. Proportionately, if I had called the member, United Future would have been way ahead of any other party. The member’s time will come.

💬 Ron Mark: I raise a point of order, Mr Chairperson. I thought I would take this point of order now, so that I would not interrupt the member’s speech. I also respectfully inform you that some members who have been seeking the call have not had the opportunity to speak on this bill at all, yet other members have had numerous calls.

The CHAIRPERSON (Hon Clem Simich): I am quite aware of that. I thank the member for raising it. There will be opportunities to seek the call. Just to put the member in the picture, if I had taken his call, then I would have needed to give National the next five calls.

I was in my office listening to the debate, and I was very interested in the comments raised by the Hon Georgina Te Heuheu, my very esteemed colleague. I also raise the points she referred to about access, and of course I endorse the comments made by the honourable John Carter. If this was simply a matter of the Crown preserving the right of access of all New Zealanders, then why is there so much paper and so many clauses? We have so much to contend with. This legislation is not simple. I find it incredible that the Government, with the support of New Zealand First, is trying to whitewash the New Zealand public into thinking that this legislation is simple, when it certainly is not.

There is absolutely no way that access is guaranteed through this bill. I ask members to look at new clause 115A, and then refer that back to clause 6, “Rights of access”. I recall Nanaia Mahuta saying we should read the fine print. Well, have I read the fine print. Clause 6(4) states: “Unless the enactment or other instrument that authorises a limit of the kind described in subsection (3) otherwise provides, the limit may be applied—”. So I would strongly recommend that those guys read the fine print. If we relate that to new clause 115A, “Status of existing and future agreements between Crown and claimant groups”, we find there is every chance that so-called Māori reserve areas in the foreshore and seabed can accrue freehold title and access can be denied. I take great exception to the New Zealand public being misled on that score. That is an absolute tragedy, when the New Zealand public relies on this Parliament to have representation. I absolutely abhor that.

The New Zealand public relies on this Parliament to represent its interests. There is also the Waitangi Tribunal to represent the interests of some other members of the New Zealand public called Māori, but New Zealanders, generally, do not have the opportunity to take their grievances to the Waitangi Tribunal. They are denied that opportunity, so where else would they go for the settlement of the grievances that are established? The foreshore and the seabed has been vested in the Crown since the 1890s, and that is the understanding that many New Zealanders have had—that that has been their common law right established for over 100 years, and that access is part of their common law right to the foreshore and seabed. So who is actually representing their right? I absolutely abhor the way that this Government, supported by New Zealand First, thinks it represents the rights of all New Zealanders. In my view, this bill quite categorically does not do that. If members do refer to clause 6(4), they will see that access can be denied once any other interest for Māori has been established over special reserves made under new clause 115A. The Government needs to look very, very closely at that.

Even with regard to access, the precedent given to Māori in legislation is chronically out of control in this country. That is an absolute disgrace to the representation that this Parliament is supposed to provide to the New Zealanders of this great nation. Certainly, they are not getting that representation here today from either the Government or New Zealand First. That is a disgrace. I have had family who have been fishing off the beaches and who have been jostled by people who think that they have a greater claim to this country than my family has, in spite of the many, many generations of our presence here in this country.

Once again, I reiterate that this bill is an absolute disgrace. We are meant to be protecting New Zealanders’ rights in respect of the foreshore and seabed, and this legislation in no way does that, in spite of all the work and all the claims made by the Government, supported by New Zealand First. Then, on top of that, to add insult to injury, after reading the document, we have a substantial Supplementary Order Paper tabled that no one had previously seen.

Thank you, Mr Chairperson. I appreciate your understanding. Perhaps I was a little hasty in taking a point of order earlier. However, this is an important debate, and I am keen to make a contribution on behalf of United Future. In my last call I was making concluding remarks about—

💬 Rt Hon Winston Peters: I raise a point of order, Mr Chairperson. I apologise to Larry Baldock for interrupting him, but my point is this. Mr Baldock is voting against the legislation, and so was the last speaker. On the breakdown of the speaking time that is going this way, I point out that one side will get far more time than the other side, and that is not fair. I thought the debate went from the pro argument to the anti argument. There are plenty of people on the pro side. We are not short of people to speak for the bill.

The CHAIRPERSON (Hon Clem Simich): I thank the member for raising that.

Speaking to the point of order, Mr Chairperson—

The CHAIRPERSON (Hon Clem Simich): No, I do not need any assistance on that. Quite frankly, I cannot read people’s minds as to whether they are pro or against this legislation. They may change their minds during the course of this Committee.

💬 Hon Richard Prebble: I raise a point of order, Mr Chairperson. I do want to draw your attention to this disturbing fact. Prior to the last call you drew it to our attention that if you had called Mr Baldock, that would have meant that the United Future party was getting more calls than any other party. Presumably, that is now the situation. I just say—without criticising people who are not here—to those members who are in the Chamber that one can tell the amount of attention the United Future party gives to this matter by the fact that Mr Baldock is the only member of that party who is here. The ACT party has nearly half its membership here in the Chamber. We have a member who has been calling right since this matter started, who has an amendment down—she has taken sufficient care about this matter to put an amendment down. Yet Deborah Coddington has been unable to get a call. In fairness to Mr Baldock and in reply to Mr Peters, I note the United Future party has voted both for and against this legislation, as it has on other matters. We now learn that Mr Baldock, even though he is the only representative of the United Future party here in the Chamber, has the call. Why should he be entitled to extra calls, just because he complained? When you are looking around the Chamber for members who are calling, I hope you will bear in mind the fact that Deborah Coddington has put an amendment down, has gone for the call, and has not had a call. I hope that will be taken into consideration.

The CHAIRPERSON (Hon Clem Simich): I thank the member for raising that. I will certainly give those matters consideration.

We were discussing the issue of entrenchment, which is part of the amendment I have on the Table, and which has been dismissed by some members of the Committee as being irrelevant or only symbolic. That may be the case in terms of single entrenchment, but I ask the Rt Hon Winston Peters to look more seriously at the amendment that provides for double entrenchment, which would make it impossible to alter the clause 12 provision by a simple majority. If his party and other members of the Committee supported that, a clear signal would be sent and the measure would be more than just symbolic, in terms of making it more difficult for future Parliaments to alienate the foreshore and seabed. I appreciated Metiria Turei’s offer to support my amendment if I reciprocated by supporting hers, but I am sorry to disappoint her by not being able to do that. One of the reasons we want the entrenchment provision is to ensure there is no opportunity to transfer title of the foreshore and seabed as part of any treaty settlement. We believe that the area ought to remain in the ownership of the Crown, for and on behalf of all New Zealanders, as we discussed earlier.

That brings me to clause 15, which gives the Crown the right to “purchase or otherwise acquire the whole or part of a specified freehold interest in any land that is wholly or partly within the foreshore and seabed.” This is something that I believe many New Zealanders are concerned about, because we as a country do not take to double standards very easily. Although there has been an intervention by the Government to ensure that there is no future alienation of the foreshore and seabed, we all know that there are parcels of land in private title that involve the foreshore of our coastline. I want to read from the Land Information New Zealand report that was given to the Minister for Land Information in December, just to put on the record of our debate how many parcels of land are involved, and in whose ownership they are. If the report is correct, there are 16 parcels, in total, that are surveyed to below the mean high-water mark. Eleven of those parcels are general land, and five parcels are Māori land. There are 32 parcels of seabed in private title that are covered by the sea. Of those, 27 parcels are general seabed parcels, and five parcels are Māori-owned seabed parcels. There are 12,243 parcels surveyed to the mean high-water mark, 9,403 of which are general land parcels and 2,840 Māori land parcels.

What is important, I believe, is that the Government is silent about what steps it will take to recover those parts of the foreshore that are in private title. The bill clearly gives it the power to do so, but United Future would have been much more encouraged to hear from the Government a strategy it would engage in to recover those titles. We firmly believe that once those titles have been issued they are property rights, and there should be no confiscation without compensation. We believe that negotiation needs to be undertaken between the Government and private property owners who now have title that goes into the foreshore. But we would like to know how that would be done, so that in the near future New Zealanders can have the satisfaction of knowing that the public foreshore and seabed encompasses the complete coastline of our country, and that there is no inconsistency and injustice whereby some people hold a title simply because they got it through erosion in the past, because the survey marks were not accurately done in the beginning, or because under different legislation 50 to 100 years ago they were able to secure a title that they would not be able to acquire today. That is an issue I would like the Minister to take a call on, so that he can give us an understanding of what the Government plans to do—because it is of interest. Many, many submitters came before the Fisheries and Other Sea-related Legislation Committee and complained about the inconsistency and the seeming injustice of some people being allowed to own freehold title to the foreshore and seabed, while in the future others will be denied that opportunity.

When it comes to local government holding freehold title, the Crown makes it very clear that it will simply take that. I am pleased to see that the Minister’s amendment will now allow not just relief for that but redress. It is acceptable that if a title is in the foreshore area that area would simply become Crown-owned under the legislation, because it is the foreshore. But it is unclear to me—and I ask the Minister to explain this to us all—what the case is with regard to reclaimed land that is not yet in title.

We have come to a pretty pass when territorial customary rights are referred to as “TCRs”. What an insult it is to reduce them to what is not even an acronym. Winston Peters should get his quotes right. The American jurist did not say it was an offence to shout “Fire!” in a crowded theatre; he said that freedom of speech does not mean one can shout “Fire!” in a crowded theatre.

When we look at new clause 9A, we see that this is very much racist legislation. It directs that when customary rights claims are lodged in the High Court, the High Court is to take only one of three courses of action—that is, kill all the claims. We know that all of those 80 cases are Māori cases.

I now refer to the Minister’s amendment on Supplementary Order Paper 302 to clause 15, “Extension of public foreshore and seabed by acquisition of land in private title”, and say that I have tabled an amendment to this amendment. The Minister’s amendment omits subclause (1) and substitutes a new subclause (1), which states: “The Crown may purchase or otherwise acquire the whole or part of a specified freehold interest in any land that is wholly or partly within the foreshore and seabed.” My amendment adds the words “by agreement” after the word “acquire”.

As the Minister’s amendment stands at the moment, this is simply a land grab. We do not know what it means. No agreement is stated. It means that the Government can go out and just take whatever it likes. It does not state that it would do that under the Public Works Act; it just states “or otherwise acquire”. No mention is made of compensation.

If we look at the situation, we see that this provision has been drawn up by people who have never studied, lived, or been by the foreshore for any number of years. If they had, they would see that the foreshore—the land between the high-water mark and the low-water mark—does change over the years. It goes up and it goes down. Sometimes the change is very dramatic, such as in the case of the Napier earthquake. If we look at the Napier airport, we see that hectares and hectares of land were created by the sea retreating. Under this legislation, that land could be privately owned. But as the legislation is worded at the moment, the Government would be able to acquire that land without paying any compensation at all.

Where I live in the Marlborough Sounds, the foreshore area changes considerably, not just from decade to decade but from year to year. New land is created, not by reclamation but by the shifting of the tides and by the foreshore changing every year. The way the legislation is worded at the moment gives the Government the right to go and just take it away.

It concerns me that this clause is a sweetener to further land grabs. My colleague the Hon Ken Shirley had a slip of the tongue when he referred to the Department of Conservation as the “Department of Confiscation”. It was more than just a Freudian slip. As I said, it concerns me that this clause is a sweetener to a further land grab. First, it is the foreshore and seabed. What will be next? Will it be the riverbeds? Will the Government be able to just acquire freehold title of private land without there being any compensation at all? The Minister is shaking his head. Does that mean he will agree to my amendment? Does it mean he will get up and explain what this clause means? The way it is drafted at the moment shows that it is clearly just a land grab, and it is a way for the Crown, the Government, to just go in and take whatever it likes—not just from Māori but from all New Zealanders. All New Zealanders will be disadvantaged by this clause. As I said, I would like the Minister to take a call and explain what he means. He is indicating that he might. Is that a yes, or is it a no?

💬 Hon Dr Michael Cullen: It’s Delphic.

It is Delphic.

💬 Hon Richard Prebble: He doesn’t know himself.

Well, maybe he will support the amendment I have tabled.

Is this it? It is all over. The debate on the Opposition side of the Chamber has died. If we listen to the arguments from National members now, we hear them say they are so concerned about the bill that their biggest objection is that it has too many pages, has too many words, and is hard to read. That is the truth. The essence of the objection to this bill by Sandra Goudie and John Carter was that the bill has too many words—it is too long—and that they do not understand it. Gerry Brownlee got it right. He was smart. He could see National was going nowhere. How could he argue against Crown ownership? Sandra Goudie said she would vote against the bill because it puts the area into Crown ownership, and she has always believed it was in Crown ownership—therefore, she will vote against it. Does that make sense? It does not make sense. But, no, the National members are to vote against this legislation.

💬 Hon Dr Nick Smith: What about these new foreshore reserves?

I will get to Nick Smith in a minute, because there is a beauty in two-talk. Sandra Goudie is voting against the bill because it puts the foreshore and seabed in Crown ownership and she has always believed it was in Crown ownership. But now that this legislation puts it there, she is voting against it because she had always thought it was there. I am confused; so is she. Gerry Brownlee could see the writing on the wall, so he deliberately got himself thrown out of the Chamber.

I come back to the arguments that were put up. Nick Smith is really good on the access clause. He is the same Nick Smith who was on television over the Christmas period, bleating on about Māori locking a gate and stopping people from going across their own land in order to go fishing. Excuse me? It seems to me that the National Party, which reveres the philosophy of one law for all, wants one law for all—except when Māori get in the way. Nick Smith now wants access across everybody’s private land. But what does David Carter say? He is out there saying that the “freedom to roam” bill is an intrusion on property rights, and that farmers like him will not stand for it. I guess that means farmers like him will not stand for it unless those brown fellas get in the way, and then they will stand for it. Nick Smith says that every Māori should open the gate on his or her private property, to give access across that land to the foreshore.

💬 Hon Dr Nick Smith: On the foreshore!

Mr Smith is very confused, and we have all known that for quite some time.

💬 Hon Dr Nick Smith: Point of order—

He always does it. When we hit him, he takes a point of order.

💬 Hon Dr Nick Smith: I seek leave to table a document showing the gate on the foreshore at Wakapuaka estuary, so that I can solve the member’s confusion.

The CHAIRPERSON (Hon Clem Simich): The member can seek leave for that, but he should not interrupt the member’s speech to do so.

💬 Rt Hon Winston Peters: I raise a point of order, Mr Chairperson. This is a disgraceful further interruption by a member who, frankly, should go away and take a pill.

The CHAIRPERSON (Hon Clem Simich): We will not have any of that. I have noted it. The member would have been pleased with the way—

💬 Dr Wayne Mapp: Point of order—

The CHAIRPERSON (Hon Clem Simich): Is this a new point of order, Dr Mapp?

💬 Dr Wayne Mapp: Yes, it is a new point of order, Mr Chairperson. There was an imputation and a reflection, in what was said to be a point of order, that was completely out of order. Frankly, I take offence at that kind of implication about members. It is outrageous that points of order are used as a means of abuse and division.

The CHAIRPERSON (Hon Clem Simich): It did not pass by me. I thank Dr Mapp.

💬 Rt Hon Winston Peters: I will withdraw and apologise, but let me tell the Committee that the National Party did that last night. I warn the National members that if they do that one more time, I will nail one of them—not physically; verbally. They have one last chance. They are being too smart.

💬 Hon Dr Nick Smith: Just take another bribe, Winston.

💬 Rt Hon Winston Peters: I raise a point of order, Mr Chairperson. I will not withdraw this one. The member has just made an allegation. He said: “Just take another bribe, Winston.” The member should withdraw and apologise, and if he does not do that he should be thrown out of the Chamber.

💬 Hon Dr Nick Smith: The Committee will be aware that in court proceedings between Mr Winston Peters and my colleague Mr Carter on this very issue, Winston Peters was cleaned out. He lost, and the case was thrown out. I cannot see how the interjection in respect of Mr Simunovich and the allegations of him receiving a large amount of money in an envelope is in any way different from the interjections that Mr Peters has made.

The CHAIRPERSON (Hon Clem Simich): That is not a point of order. What was the matter that you raised before, Mr Peters?

💬 Rt Hon Winston Peters: He accused me of taking a bribe. He has now compounded that by saying that I was cleaned out in court. That, of course, is not true. My lawyer was invited by the judge to set up a new chain of pleadings. That is the fact, and every lawyer knows it—and the member should take a pill.

The CHAIRPERSON (Hon Clem Simich): You have already apologised for that, Mr Peters. If that is what Dr Smith said, and if that implication was in respect of Mr Peters, I ask him to withdraw, please.

💬 Hon Dr Nick Smith: I withdraw, just to be kind.

💬 Hon Dr Michael Cullen: I raise a point of order, Mr Chairperson. It is not good enough to withdraw and then to add further words afterwards. It really is time for members to withdraw and apologise properly, and to move on. This is not doing the Committee any good, at all.

The CHAIRPERSON (Hon Clem Simich): I thank Dr Cullen, and I ask the member to do a succinct withdrawal.

💬 Hon Dr Nick Smith: I withdraw.

New Zealand First said it would fix this issue. Our leader, the Rt Hon Winston Peters, said right at the start of this debate that at the end of the day the situation will be what people always believed it to be, and that ownership will return to the Crown. That is precisely where the foreshore and seabed will be vested, as everybody believed it was in the first place.

It is interesting that the National Party, in trying to deal with the debate right now, is showing all the signs of a party that is in total disarray. Its members are very confused, and have to resort to being smart alec little schoolboys to make points. That is interesting, because when the National members have to resort to those sorts of tactics it proves that they have no basis for their argument, and nothing valid to say. I notice that Don Brash has not made one speech in the many long hours we have been here. Gerry Brownlee rightly thought that if Don Brash was not going to be here, nor would he. So he got himself thrown out of the Chamber, and he is not here either. We are left with schoolboy drivel. Parliament deserves better than that, and the country deserves better than that.

New Zealand First said that it would fix this problem, and it has. We will fix the leadership of the National Party, too. We will make sure that it has a complete restructuring at the next election and, when National members come back, they may ask whether they can be a junior coalition partner in some form of Government.

The member Ron Mark had the cheek to ask the Committee what we were doing debating a 135-page Supplementary Order Paper introduced only this very day.

💬 Hon Dr Michael Cullen: It was yesterday.

What is the date on the wall of the Chamber? On the same parliamentary day that a Supplementary Order Paper is being introduced that is 135 pages long, the members from New Zealand First say that this legislation will not affect access and that public access is guaranteed. I want to go right back to the core of this issue, because it started in my electorate of Nelson. It started with the erection of a sign on the foreshore that stated “No access” and that one needed to get the consent of the local iwi in order to be able to go into those areas. The effect of that gate is to control public access for boating along about a 60-kilometre area of coastline. Who has the key to that gate is critical to access. [Interruption] A moment ago Ron Mark told me to make a contribution, and to talk about the issues. When I then talk about the issues, he tries to shout me down. I want to know whether this bill will guarantee my constituents access to that 60 kilometres of coastline. The answer is no, it does anything but that.

This bill sets up an idea that just came into the public arena in the last 24 hours, which is the provision for foreshore and seabed reserve.

💬 John Tamihere: It’s not about the coastline.

We should not believe anything that Mr Tamihere says. He is the member who told the public one thing, and was sacked for doing the opposite of that. He was the Minister for Land Information who said that there were thousands of kilometres of privately owned foreshore, and was then found to be fibbing. He was saying the exact opposite of what the department had said. That is an absolute fact.

💬 Rt Hon Winston Peters: I raise a point of order, Mr Chairperson. The member may say that another member is mistaken, has misrepresented the facts, or does not have the facts right, but he cannot say that a member is fibbing or lying. Dr Smith needs to take a good, long look at himself.

The CHAIRPERSON (Hon Clem Simich): The member has made his point.

💬 Rt Hon Winston Peters: Well, I am worried about him.

The CHAIRPERSON (Hon Clem Simich): Yes, I can see the concern there. “Fibbing” means the same as “lying”, albeit at a lower level.

I withdraw and apologise. It is a matter of public record that John Tamihere, as Minister for Land Information, said that there were thousands of kilometres of privately owned foreshore in the very week that his own department had written a report that stated there were only a few kilometres. It is little wonder that he was fired or had to resign as a Minister, because he has difficulty with the truth.

I also want to come back to the issue of public access. New Zealand First says that it is all guaranteed. It is not, at all. In the new amendments this bill provides for wāhi tapu to be created, for wardens to be appointed, and for those wardens to have the power to exclude people from those areas. Does that guarantee public access to the foreshore? Of course it does not. We know that in areas such as Tauranga, where wāhi tapu have been broadly described as areas of hundreds of hectares, we will now be opening up the wāhi tapu industry and extending it into the foreshore and seabed, with new instruments to remove public access. So how can Winston Peters and his crew of fools from New Zealand First stand up in this Chamber and pretend that public access will be guaranteed?

💬 Ron Mark: I raise a point of order, Mr Chairperson. I have seen about three or four people stand up in this Chamber and describe how mortally wounded and offended they were by some of the statements that were made. I have also suffered endless interjections from Dr Nick Smith on points of order. Being called a fool has mortally wounded me; it has offended me most sincerely. I would like him to withdraw that. Otherwise, I will just think he is a bigger idiot than we already know he is.

I raise a point of order, Mr Chairperson. My colleague Gerry Brownlee was thrown out of the House for raising spurious points of order. Can you explain to me the specific point of order Ron Mark has made that means he should not suffer the same fate as Gerry Brownlee?

The CHAIRPERSON (Hon Clem Simich): He was trying to explain to me why he thought he was offended. I did not accept that.

It is an absolute disgrace that a 135-page-long Supplementary Order Paper, which is very complex and concerns very important legislation, has been dropped on this Committee, and that we are expected to ram this legislation straight through under urgency. It is a disgrace that New Zealand First is part of that con job. It is a disgrace that members of the Labour Party are prepared to do that in this Parliament. We see in this part of the bill, and from New Zealand First—[Interruption] Well, it will be a damned good job.

💬 Rt Hon Winston Peters: When will you retire?

We will not have to retire Winston Peters, because we know from the polls that the new National candidate, Bob Clarkson, will take him out in Tauranga.

The CHAIRPERSON (Hon Clem Simich): There should be fewer interjections, please.

The issue for Mr Peters is how he can possibly justify saying to the public of New Zealand that this bill guarantees public access, when we know that there is nothing in it that will take away the sort of gates that I have seen erected to remove public access on the foreshore of my electorate. Furthermore, the provisions for special foreshore reserves, for wāhi tapu, and for people to be excluded from that area of foreshore mean that the guarantees of access are not worth a grain of salt. I challenge Winston Peters to resign when the first person is excluded from the beach and the foreshore in my electorate.

I rise to make a contribution to the debate on clause 28 and the meaning of territorial customary rights. I think that this is a part of the bill that may cause a lot of difficulty in terms of defining customary property rights. In itself the title should be quite clear—territorial customary rights should state that it is a customary title. However, that is not achievable in this bill and I do not think that the clause goes far enough. The issue arose from one of the comments that Dr Paul McHugh raised. He emphasised that tikanga would undoubtedly play a part in the development of the common law of New Zealand. It seems to me that if territorial customary rights or customary titles are to be provided for, it is important that the contiguous land test is one that takes into account tikanga, the 1840 principle, and contiguous land ownership. But the way in which the bill has been written puts too much weight on the contiguous land issue. That may be something that may be revisited.

It is important, throughout the initial clauses of the bill, that tikanga should be an upfront consideration of how to determine a territorial customary right, because then all the considerations about how land transactions occurred along the coast could be better taken account of. I brought a submission to the select committee. I am from one of those groups that are not coastal tribal dwellers. In fact, I have more of an association with a river, so I make no secret about that and I am not an expert in this area. However, I recognise that under tikanga the transference of land to kin network groups so that they are able to exercise a right along the coast is something that is well established over a long period of time. So when we are looking at the evidence that will be considered to determine whether a territorial customary right could be awarded, those types of issues need to be taken into account if there is to be a real attempt to try to address this issue.

What happens if the test is so high that no territorial customary right can be awarded? How long do we wait? We have already seen, under the fisheries legislation, that getting the issue of mātaitai reserves through has quite a long gestation period. The legislative process has not really applied its thinking to trying to improve that. I do not really think that we should let that happen in this instance. It seems to me that clause 28 is problematic, but we will never know until we try it, and we have to start somewhere. I accept that. However, it does not go far enough.

There were points within this issue that I think were raised before the select committee, and during the discussions by many Māori submitters who said that if we were to have a test it must take into account their own tikanga. I do not know how this can be reflected in law, but I think that the way in which it is written in clause 28 is a bit convoluted and we should simplify it a bit more.

In fact, the Māori Land Court really has the expertise in this area and has already made provision for determining issues of tikanga. Perhaps that may be an avenue that may assist the High Court in its determination.

The other point about the tikanga test is this: will it be clear, when evidence is presented to the High Court, that those matters can be considered before the court? I am not sure. I hope that it can be, and if it cannot it should be fixed at some later date.

Clause 28 is a bit convoluted, as I have already said. The contiguous land issue, although it seems that the clause is written as a determining factor, should be balanced off against other interests. The points were raised with the select committee, I understand, that other considerations should be taken into account. We hope that when Māori take the path of determining their territorial customary right to gain a customary title, the test applied will achieve that. I am not sure that it will.

I want to raise a matter with the Minister. I concede immediately that I am not sure about the matters I am raising. The reason is that the Supplementary Order Paper has come in so late, and there is no explanatory note. Let me say what I think the situation is. When I am looking at the position for the granting of a territorial customary right, I see that it appears that the test to the High Court is a high one, and is the test that the Court of Appeal would have applied but for this bill. New clause 28(2)(a) states: “that area was used and occupied, to the exclusion of all persons who did not belong to the group, by members of the group without substantial interruption in the period that commenced in 1840 and ended with the commencement of this Part;”. When we look at that provision, we can see that there are very few parts of the foreshore of New Zealand that Māori can say they have occupied to the exclusion of all others. That is what the common law is. That is the nature of a customary right. If one does not use it, one loses it. The Government could say that it is reinstating the law.

I have no difficulty with that, except when I come to new clause 34A, “If no finding made, application may in appropriate cases be considered under Part 3 or Part 4”. It states: “If the High Court does not make a finding under section 29 but considers that any rights identified in the application are rights of a kind that are more appropriately considered under Part 3 or Part 4, the High Court may do whichever of the following is appropriate: (a) treat the application as an application under Part 4: (b) refer the application to the Māori Land Court for consideration under Part 3.”

The point I make to the Government is that this is an example of why the Parliament is saying that Māori are both losing and gaining. On the face of it, the provision appears to be tough, but it then states that even if a group does not have a customary right, it can send its application off to the Māori Land Court to create one. I cannot go into Part 3—[Interruption] No, in the debate on Part 3 I will say that Māori are most certainly given that right. If I have interpreted it correctly, firstly, it explains why the bill is so complicated, and secondly, the bill is an outrage. This Parliament should not be taking away citizens’ property rights, but it should not be creating them, either. Here is a situation whereby the Government is taking away property rights from Māori—and that makes it racist—and, it appears to me, it is creating some other, possibly inferior, property rights for Māori, and only Māori, which is also racist.

I would like the Minister to explain, firstly, whether I am right in my explanation, and, secondly, what possible justification there is to say to people who no longer have a customary right and no longer own the foreshore that, presumably because they once did—and because they feel affectionate towards it—they will have special rights under the Resource Management Act. I ask the Minister where the justification for that is. What possible legal principle is behind that? It seems to me to explain why this bill is so complicated. The Government wants to hide from ordinary New Zealanders that this is what it is doing. It seems to me to be stuck in the swamp of the politics it has got itself into. This is what happens when a Government moves away from clear statements of principle.

As I read the first part of the provision, it seems to me to be a clear statement of the law. Some people may not like it, but that is the statement of the law. If one has a customary right and has not exercised it, one loses it. One must use it or lose it. Now the Government is saying that even when the High Court finds that the parties have not used the customary right, and that usage has not been exclusive, it will refer them to the Māori Land Court to find new rights. I ask the Minister where the justification for that is. How can the Government possibly justify new clause 34A, where, if the court does not find that there is a customary right—where a group has lost the property—the application should be considered under Part 3?

I move, That the question be now put.

The points that Mr Prebble made—

💬 Clayton Cosgrove: Old Lazarus!

It is interesting to hear Mr Cosgrove quoting the Gospel. It must be the influence of sitting next to Mr Tamihere. The point that Mr Prebble made was, to say the least, an interesting one. It takes us back to new clause 29, “High Court may find that a group held territorial customary rights”, which refers to groups that, had it not been for the passing of this bill or for the foreshore and seabed having passed into Crown ownership, might have been able to claim a territorial right. The Minister in the chair, Michael Cullen, may want to tell us what are the limits and constraints on that. Surely, most Māori communities around the countryside would, at some time, have been on land contiguous with the foreshore and seabed—certainly, some inland, we know that. Many around the coastline have not been there for many, many years. In my own city of Christchurch, I can think of those sorts of communities, but, when the Canterbury Association ships arrived in 1850 and the Deans’ lease was renegotiated and became a lease deal, many of those communities moved. Had they not moved, then clearly they would have held, according to this bill, the territorial right to those seas. I simply ask what the constraint is that the court is under when considering applications under clause 29.

💬 Hon Dr Michael Cullen: Contiguous now.

Although Dr Cullen says: “Contiguous now.”, the point is that the bill is saying that had those groups held the land, they would not have lost the territorial title. Surely there has to be some better answer than that it applies only now. It may well mean that those iwi groupings and small hapū around the country are able to go back many, many years to a time when they were in possession of those properties.

I need to make a few comments about new clause 12, because when I last spoke on this bill, we were debating up to that clause. There has been a lot of discussion this afternoon—

💬 Hon Dr Michael Cullen: It’s called reasonable continuity.

It indicates that we have a long way to go in debating this part. It has taken about an hour to get from clause 12 to clause 34, and we have some considerable distance to go before we get to Part 3.

My real point is that a number of people have asked this afternoon what clause 12 is all about. Essentially, it is about empowering the Government to do deals in treaty settlements, in order to see the transfer of foreshore and seabed ownership passed to Māori. We might well decide that this is the Tainui clause, or the Hauraki clause—two groupings that the Government is currently negotiating with. [Interruption] The Minister of Māori Affairs has confirmed across the Chamber that that is exactly what the purpose is. The Minister is able to tell his people to go along with this bill, because, where it counts, the Government will do a deal with them and will pass over the ownership of those seabed and foreshore areas in the rohe. It is quite a simple thing, in actual fact.

I do not think the other parts of this bill are really adequate enough to fully distinguish in the public’s mind the difference between a territorial customary title and a customary right. It seems to me that the two have been confused, not only by commentators but particularly by the Government throughout the passage of this bill. Indeed, I think it was around the issue of customary rights that ancestral connection hit the rocks. It has been moved out of this bill, and the proposal has come forward that it be placed into resource management legislation.

I move, That the question be now put.

I will continue on from where I left off in my last call, by asking the Minister to give an explanation to the Committee—and I think it would be beneficial to people in local government around the country—of the loss of title by local government to the foreshore and seabed. We understand the reason for that if it concerns the wet part of the foreshore and seabed, but can the Minister explain whether compensation will be paid if it is reclaimed land that has not yet gone into private title? In fact, can he explain what the bill states about that particular part of the former foreshore and seabed? There is a weird bit of policy running through the bill that has nothing to do with the Ngāti Apa issue, whereby land that is no longer foreshore and seabed will now be claimed by the Crown, and the issuing of private title to it will be prevented. Could the Minister give an explanation of how that will affect local government—even if just for my sake, in order to give me an understanding of that?

In this call I want to speak mostly on clause 34B, “Purposes and status of foreshore and seabed reserve”. That is a very interesting and late development in the whole process. It may become contentious in the future, not for any negative reason in terms of Māori being able to establish foreshore and seabed reserves in areas where territorial customary rights are established but because other New Zealanders will become pretty jealous of that model. That model seems like a pretty good idea to many people who are concerned about the management of the inshore area—the foreshore and seabed—particularly out to the 4-mile or the 12-mile area. They too would like to be involved in management committees or guardianship roles in that area. We have the precedent of the Guardians of Fiordland’s Fisheries and Marine Environment, an excellent model established over the last 3 or 4 years. I know that many people, particularly recreational fishers, are interested in seeing that model expanded around the country. Here we find it expanded under the provisions of this bill, and I think that is good.

I would just like to mention a couple of points. It is reassuring that clause 34B(2) states very clearly: “Neither the guardians of a foreshore and seabed reserve nor the applicant group nor the board is entitled to charge or collect fees or other form of payment from any person or body for the use or occupation of the reserve.” I think that is wonderful; that is the way it ought to be. But then, when we go to clause 34C(1)(c), we find that when a board is being set up, the persons or bodies to be represented on it must determine “the resources required for the operation of the board and how its costs will be met.” It is very clear that the boards are prohibited from charging people. That is good and reassuring, but clearly costs will be involved in the setting-up and ongoing operation of the guardian boards. In fact, if we go to clause 34D(1)(v) we see that there is a requirement to set up a policy outlining “the remuneration of members and the payment of members’ out of pocket expenses;”. That begs the question of who will be paying for that.

I think local government will be interested in that issue. It seems to be made the responsibility of regional councils, as under clause 34C(2) it is “the regional council with responsibility under the Resource Management Act 1991 for the area to which the High Court finding relates;” that will have the guiding role in it all. I am sure regional councils will be interested to know whether they will have to pay for the costs, which will then come from the ratepayers. While I understand the need for flexibility, it is not clear who will pay those costs. I do not see why, if we are to give Māori the opportunity to establish those reserves at their request, the costs ought not to be borne by Māori. If the policy here is intended to state that Māori must make it clear how they will pay those costs, I think that will be acceptable to most New Zealanders. But if, in fact, the costs are to be paid by ratepayers—if the costs are to be shared by all the residents of the area—then I think local government will be looking very carefully at the make-up of the boards or the guardian entities, in order to see that there is fair and equal representation.

I do not make these comments to suggest that the foreshore and seabed reserves are in any way a bad thing. I think they are a very positive step, particularly if that model enables more local control over the establishment of marine reserves. Those reserves are causing huge contention around New Zealand, and I think the answer is to allow local people to have local management of such areas.

I raise a point of order, Madam Chairperson. I note that the Government is moving closure motions on a very important part of this bill, Part 2. We have now been going for 3 hours on this part, and 25 calls have been taken. I ask you to compare that with Part 1, on which we spent over 3½ hours and had 36 calls. Some National spokespeople want to speak, and they have been seeking the call. Dr Wayne Mapp, who was on the Fisheries and Other Sea-related Legislation Committee, has been seeking a second and a third call for the last couple of hours. I ask that you take that into consideration before you consider the closure motion.

Madam Chairperson, I will not try to influence you one way or the other; I simply point out that it is totally improper, by way of point of order or otherwise, to try to influence the Chair on the taking of a closure motion. It should not be done.

I thank the member. We have spoken about this a couple of times during the debate and say to Mr Tisch that points of order on this have been answered.

I move, That the question be now put.

I want to talk—[Interruption]

💬 Gerry Brownlee: I raise a point of order, Madam Chairperson. I do hope that Dr Mapp’s time has not commenced.

The CHAIRPERSON (Ann Hartley): No.

💬 Gerry Brownlee: I also suggest that had such behaviour occurred on this side of the Chamber, we might have ended up with someone being ejected from the Chamber. But I suppose you have to make exceptions when people are as remedial as Mr Cosgrove.

The CHAIRPERSON (Ann Hartley): That was not a point of order; it only leads to disorder. I had called for order.

I want to talk about two issues. The first is the claim that New Zealand First members have been making, which is that they believe in one law for all. Their leader said that in his contribution. In fact, he has been going around the whole country making that claim, and he gets a certain number of votes for it. Today he is doing precisely the opposite. He is not just voting for the legislation; he actually participated in its drafting. Mr Dail Jones and Mr Winston Peters have been working together with the Government to build separatist law. That is what has happened. I see headlines alleging that New Zealand First believes in one law for all. In reality they provide divisive law.

If we look at the territorial customary rights rules, we see they can be claimed only by Māori. That is the first point. No one can reasonably dispute that fact. How can that possibly fit within the rubric of one law for all? There are two separate bodies of law; there is simply no doubt about that fact. The second point is that New Zealand First claims to be providing Crown law and Crown ownership for all New Zealanders.

💬 Dave Hereora: That’s right.

The member says: “That’s right.” Territorial customary rights cut right across that. They will restrict the ability of the owner, the Crown—on behalf of all New Zealanders—to freely exercise its ownership. Why do I say that? We have only to look at clause 6, the purported access provision, to see why. Such provisions are typically drafted so that the first part of the clause is a general proposition—in this case it is that there shall be a complete right of access across the public foreshore—and then the devil is in the detail. We have only to go to clause 6(3) to see all the provisos. [Interruption] In that instance, access rights can be restricted and limited, and that is exactly what has happened. So right through this legislation, one gets the general proposition, then the provisos.

I want to provide another example for members of New Zealand First, who clearly do not understand this, and they have only to look at clause 11, “Public foreshore and seabed vested in the Crown”. Again, in subclause (1), is the general proposition that ownership is vested in the Crown absolutely. Almost immediately below that, subclause (3) provides: “Subsection (1) does not affect customary rights that are able to be recognised and protected under Part 3 and Part 4.” Those parts, of course, are the very areas where we get the territorial customary rights and the customary rights orders, which then provide limitations to the general ownership provisions.

So there are general, grand-sounding principles that are then shot through with all sorts of exceptions that serve to limit the public interest. New Zealand First claims to protect the public interest, but I will not ascribe even that to the Labour Government. Those Labour members know what they are doing. They know they are setting up separatist law and are proud of it. In the New Zealand Herald today we read that the Māori members expect 10 percent of the coastline to be subject to those territorial customary rights orders.

💬 Government Member: Ah!

Those members might groan, but I believe what I read in the papers—[Interruption] When journalists quote or refer to the views of the Māori caucus, it is because they have spoken to its members. Those members know that reality. Those members opposite spoke to the journalist and told her that it was exactly their expectation. They told the New Zealand Herald that they expect the percentage to be 10 percent, and that is what they will demand. Dover Samuels cannot possibly deny that.

I move, That the question be now put.

The next amendment is to clause 12 in the name of Larry Baldock. I ask members to note that this proposal for entrenchment requires the agreement of 90 members.

The question was put that the following amendment in the name of Larry Baldock to proposed new clause 12 set out on Supplementary Order Paper 302 in the name of the Hon Dr Michael Cullen be agreed to:

to omit paragraph (a) of subclause (2) and substitute the following new paragraph:

(a) by a special Act of Parliament:

(i) passed by a majority of 75% of all the members of the House of Representatives; and

(ii) enacted after the commencement of this Act; or.

The next amendment is to clause 12 in the name of Metiria Turei. It is an entrenchment clause and was different in element from the previous amendment, and that is why it was allowed.

The question was put that the following amendment in the name of Metiria Turei to proposed new clause 12 set out on Supplementary Order Paper 302 in the name of the Hon Dr Michael Cullen be agreed to:

to add the following new subclauses:

(3) No special Act of Parliament to which subsection (2)(a) applies may be passed unless the proposal for the Act—

(a) is passed by a majority of 75% of all the members of the House of Representatives; or

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

provided that this subsection does not apply to the repeal of subsection (1) or (2) by a consolidating Act in which that provision is, or those provisions are, re-enacted without amendment and this subsection is re-enacted without amendment so as to apply to that provision or those provisions as re-enacted.

(4) Subsection 3 does not apply where special legislation is proposed for the alienation of the foreshore and seabed for the purposes of any treaty settlement legislation.