Marine and Coastal Area (Takutai Moana) Bill

on behalf of the Attorney-General: I move, That the Marine and Coastal Area (Takutai Moana) Bill be now read a second time. I am proud to lead the debate on this important bill—a bill that will remove for ever the 2004 Foreshore and Seabed Act from the statutes of our land. The call to repeal the 2004 Act has been heard many times in this House, including on the forecourt outside, which witnessed the largest Māori protest since the Māori Land March in 1975. Te Ope Mana a Tai articulated that call, and I repeat their words for the record: “the Foreshore and Seabed Act will never be viewed by iwi/hapū as anything other than an instrument of confiscation”.

The 2004 Act extinguished existing Māori customary title. It then went further and removed access to the courts for Māori to seek recognition of customary title, in one swift turn of the pen denying one group of New Zealanders the opportunity for due process to occur. That Act conferred ownership of the foreshore and seabed on the Crown. In its totality the 2004 Act—

💬 Mr SPEAKER: I apologise to the honourable Minister. I ask members, please—members have indicated that this bill is of great concern and interest to them. This is the commencement of the second reading of perhaps one of the most important bills to be debated in this House this year. Members are standing around talking, and it is not good enough. I ask them to extend some courtesy. If they wish to have conversations, I ask them to please go to the lobbies. Thank you.

In its totality, the 2004 Act became synonymous with a Government that was unacceptably interventionist, acting with undue haste to override the judicial process.

In one of the most damning reports ever written by the Waitangi Tribunal, the tribunal concluded that the Crown had seriously breached the principles of the Treaty of Waitangi. It did this by failing to respect tino rangatiratanga and the good-faith obligations of partnership, denying active protection to Māori, and expropriating Māori property through actively assuming ownership without either consent or compensation.

This context has been well rehearsed over successive years at marae, in university lectures, across the kitchen table, and in this debating chamber. There has been a lengthy and frequently painful debate since 2003, when the Court of Appeal first agreed that Ngāti Apa could have customary title investigated by the courts. Yet, through the rage and dismay, there have been many milestones along the way. On 10 June 2004 we established the Māori Party, with one of our key goals being to repeal the Act. On 12 October 2006 I introduced our very first Māori Party member’s bill, the Foreshore and Seabed Act (Repeal) Bill. After the general election in November 2008 the Māori Party signed a relationship agreement with National, with one of the most critical targets being to review the 2004 Act. And almost 2 years ago to the day—on 4 March 2009—the Government announced a ministerial review to be chaired by Justice Taihākūrei Edward Durie, with Hana O’Regan and Richard Boast. Many, many thousands of New Zealanders have taken part over the last 8 years in an intensive and exhaustive consultation process that has led us to the pathway that we embark upon today.

What are the hallmark features of the Marine and Coastal Area (Takutai Moana) Bill? Inevitably, the essential legacy of this bill will be in repealing the discriminatory Foreshore and Seabed Act 2004. But in repealing that Act the new legislation also takes a step forward by creating what a former tribunal lawyer has called a real incentive for w’ānau, hapū, or iwi who claim rights to seek those rights before the courts. Tom Bennion, the editor of the Māori Law Review, has described the Marine and Coastal Area (Takutai Moana) Bill as “an ambitious reworking of the issue to provide some real rights to Māori”, rather than the careful and cautious adjustment of interest that a cynic might have expected. There is no better description of the potential of this bill than that in the preamble: “This Act takes account of the intrinsic, inherited rights of whānau, hapū, and iwi, derived in accordance with tikanga and based on their connection with the foreshore and seabed. It translates those inherited rights into legal rights and interests that are inalienable, enduring, and able to be exercised so as to sustain all the people of New Zealand and the coastal marine environment for future generations:”.

Tikanga Māori will play an essential role in determining such titles. The Māori Party has been very clear that we expect tikanga Māori to be observed and upheld at every stage of the process in the implementation of this legislation. A number of rights will come with the recognition of customary marine title, such as the right to permit or veto applications under the Resource Management Act, or applications relating to conservation activity; the ability to protect wāhi tapu within a customary marine title area; rights in relation to marine mammal - watching permits and New Zealand coastal policy statements; the ownership of new-found taonga tūturu; and the ownership of non-Crown minerals—that is, minerals except for gold, silver, uranium, and petroleum.

There is also a very interesting provision tucked away in clause 105, “Burden of proof”, which states explicitly: “It is presumed, in the absence of proof to the contrary, that a customary interest has not been extinguished.” In other words, it will be up to the Crown to prove that any interest has been extinguished, rather than the onus for proof being placed on w’ānau, hapū, and iwi.

Is this legislation a panacea for all ills? I think not. We have vigorously fought the case against too high a threshold being applied to the tests for customary marine titles, which was a concern that w’ānau, hapū, and iwi have consistently raised with us. We appreciate also the concern of those Māori who seek a new Treaty-based, “longer conversation” to safeguard the mana of hapū and iwi. That was a resounding theme of the 72 submissions received by the Māori Affairs Committee from marae, hapū, iwi, Māori landowners, organisations, and collectives. It is a theme that we have certainly heard and that we will continue to give voice to in every sphere of political activity that we are engaged in.

Some statements have been made in public about the overwhelming opposition to the bill demonstrated in the select committee process. I think that comment should be balanced by the fact that fewer than 2 percent of the 5,700 submissions received were in fact from Māori. The great majority of submitters came from lobby groups such as the Coastal Coalition. There is no question that this issue has given life to some powerful advocates who have drawn on considerable resources to sell their message.

Our challenge was always to ensure we looked forward while, at the same time, getting rid of the legislation that created such division between New Zealanders. So we have listened carefully to the guidance of kaumātua, who have recommended a series of smaller, discrete cases to be taken to the courts to establish comparative precedent. We have attended hui across the motu to supplement the information received by the select committee, and we know that there has been a rigorous schedule of meetings throughout electorates. All this input has been vital. I particularly acknowledge the dedicated commitment and vision of the Iwi Leaders Forum in making every effort possible to carve out a better future for our mokopuna.

Finally, we mihi to Chris Finlayson, the Minister for Treaty of Waitangi Negotiations, who has willingly taken on what at times has seemed to be an impossible exercise. The fact that he has persevered despite all will be forever acknowledged and known. This is our bill, a bill that National has been prepared to back. We will not resile from the promise that we gave to our people to keep our word: to repeal the 2004 Act, to restore access to the courts, and in every step of the journey to have the courage and the commitment to ensure that this legislation recognises and provides for the enduring mana-based relationship of w’ānau, hapū, and iwi to their takutai moana. Tēna tātou katoa.

Before speaking to the reasons why Labour believes the Marine and Coastal Area (Takutai Moana) Bill ought not to proceed, I record that Labour intends to allow one of our speaking slots to be used by Hone Harawira. I emphasise this not because we agree with Hone Harawira’s views on the foreshore and seabed. We most plainly do not. I outlined some of my criticisms of Hone Harawira’s views on the foreshore and seabed in the first reading of the bill, and I do not propose to restate those. Hone Harawira is a member of Parliament. He clearly has a strong interest in this issue, and though it might be inconvenient for the Māori Party and National to hear from him, we think this Parliament and this country should hear from him—not because we agree with him but because, apart from anything else, it absolutely emphasises the fact that this bill does not settle this vexed issue. This bill does not settle this vexed issue.

💬 Hon Steve Chadwick: I raise a point of order, Mr Speaker. I am sorry to break in on my colleague, but members on this side of the House when urged by the Speaker to give due consideration to Minister Tariana did just that. I would like that approach to be accorded to our speaker in return.

The ASSISTANT SPEAKER (Eric Roy): I will manage the situation.

I will not recount the history of the existing Act. But I agree that this Parliament should restore the right of iwi and hapū to make claims to the court to recognise customary interests that were extinguished by the Act, including customary marine titles. We do not resile from that position, but there are a number of reasons why this bill does not achieve its stated purpose, and why it should not proceed in its form. If the bill achieved its purpose and did it properly then we would not be here opposing it, but it does not.

All that is needed now is simple legislation that protects in a statutory way public rights of access. There is agreement on all sides of the House—the Māori Party, Labour, National, and others—that that is now appropriate. The legislation should make it clear in statute that customary title interests cannot be onsold—that they are inalienable—and that does not seem to be an issue now. Then we can put all other issues back to the court.

This Parliament cannot agree in a way that settles it—to the satisfaction of the various interests that appeared before the Māori Affairs Committee, and to the satisfaction of the varied interests at large in society—on the threshold test to determine whether customary title exists. There is considerable disagreement from different parties about the appropriate threshold test. The Hon Tariana Turia said that in her own speech today, and I acknowledge that she said that. There are differing views; this Parliament has had two cracks at it, and we have not settled it. It is time to acknowledge that this is one of those issues that Parliament should not try to codify; it should be put back to the courts.

We are not scared of that in Labour. Indeed, we tried to explore that issue through the select committee process and I tried to explore it in my own dealings with the Attorney-General as to what legal advice the Crown had received about the effect of the change to the threshold test. Prior to the bill being introduced, and after the bill was introduced, I asked the Attorney-General to release the legal advice to Labour that the Crown had undoubtedly received about the change to the threshold test. He said he would consider it. It is within his discretion to release that advice, and he is quite within his rights not to release that advice. I do not say that he is not within his rights to withhold that Crown legal advice. But in the absence of us having access to that Crown legal advice, it was all the more important that the select committee got its own legal advice. Again, throughout the select committee, Labour members sought that advice from the Government, because there is no sense in paying for a second lot of legal advice if it is already around. In the end, the Government, through the Attorney-General’s advice to officials, refused to release that legal advice, so the select committee said that we needed other legal advice—we needed legal advice from a legal expert so that we could advise Parliament of the effect of the change to the threshold test. But we were blocked by some members of the select committee from being able to offer that advice. The previous foreshore and seabed committee had had good, detailed advice from Professor Paul McHugh, and this Parliament benefited from transparent advice about the effect of the threshold test.

But that is one of a number of procedural abuses that we suffered at the select committee. Not only did we have that but a 500-page departmental report came to us by email on a Friday afternoon. No one reads a 500-page report properly on a computer.

💬 Paul Quinn: I did.

No, the member did not. He read the start of it. The member did not read the whole report. It was patently clear that neither he nor anyone else—

The ASSISTANT SPEAKER (Eric Roy): I am sorry to interrupt the member. We had a plea earlier from this side of the House to have a bit of decorum, because I understand that the speakers are not working very well. This is a debate where there is some passion. There is no problem with interjections as long as they are rare and reasonable, but let us not have a yelling barrage.

It is clear that no one had the time to read that report properly. On the Monday, the hard copy was circulated to members—on the Monday. Most members were like me and got it on the Tuesday morning, which was the same day that the committee was to conduct—at least in a pretend way—consideration of that 500-page report. After less than 2 hours of consideration of the 500-page report, the committee forced through the deliberation. That was quite improper. I put a motion that we go through the report on a page-by-page basis, which is the normal process, but that motion was blocked by Government members, supported by the Māori Party, as was my motion on notice that we get legal advice about the effect of the changes to the threshold test, and as was my motion on notice that we at least provide the House with a new version of the bill that showed the changes being proposed by the Government. But that, too, was blocked by the Government. Why? Because in the end this is an act of politics. It is an unpopular act of politics amongst many National supporters, which is why National wants to ram this legislation through Parliament as quickly as it can in the hope the legislation is forgotten before the election. If anyone has a doubt of that, they have only to reflect on the fact that the Government is doing this in the shadow of the earthquake, when it has been asking the Opposition to put aside politics in the wider interest of a settled nation.

💬 Hon Member: What’s the rush?

What is the rush? What is the first thing the Government is doing now that we have resumed after the earthquake? It is progressing this foreshore and seabed legislation.

One of the other problems is that this bill allows agreements between Māori and Ministers. The Attorney-General has said that he will change that, though, and that some form of supervision by Parliament will be required. But I suggest to the House that that is a poor substitute. We are dealing here with the proper and fulsome—but no more than fulsome—recognition of Māori customary interests. The idea that Parliament will do that as assiduously, having regard to all of the different private and public interests at large, is, in my opinion, wrong. It is much better if that is done through the courts, whose officials are the normal people to whom we go to protect our property rights, who will see that proper recognition of rights, and who will guard against the improper erosion of other people’s rights as a result of inappropriate recognition of rights that do not exist.

The original legislation was flawed. Although it was possible to take a claim to the court for what is now being called a customary title—what was then called a territorial customary right—it was not possible for the courts to give a remedy. People were reliant on the grace and favour of a future Government to get a remedy, and that was wrong. Labour has conceded that that was wrong, which is why we have said that the existing legislation needs to be changed. But this substituted legislation is wrong too. This substitute goes the other way and says there can be agreements, which are tantamount in my view to Treaty-type agreements, when what is at large here is recognition of an existing property right that ought to be properly and fully recognised, but no more than fully recognised.

There are some other glaring mistakes in the bill. The effect of this bill—and we heard from Māori submitters as well as from non-Māori—is to undermine the full and final nature of the settlements in respect of commercial aquaculture. Under that settlement, Māori rightly receive 20 percent of the marine areas allocated for aquaculture, and they have the right to apply for more—for additional space over and above the 20 percent allocation. There is no problem with that; that was the agreed settlement. Indeed, that settled the underlying injustice that was the cause of the Ngāti Apa dispute in the first place. But this bill goes further and allows holders of customary marine title to use their right of veto, in addition to those two rights I have talked about, to effectively give them an improved negotiating position to get even more than their entitlement under the commercial aquaculture settlement.

There are other problems. A severe criticism of the bill is that we are setting up an alternative planning regime. The Law Society and the Planning Institute both noticed that we are requiring regional councils to give effect to these plans. There are a lot of other problems with this bill; it will not settle them. At the first reading we called for the Māori Party to accept this as a full and final settlement. But it has not done that, and we oppose the bill.

As is always the case with the member David Parker, that speech was a very useful contribution. It seems that this is the first time we have heard from a Labour member in this place an acknowledgment that the 2004 Foreshore and Seabed Act is discriminatory because it unilaterally extinguished the uninvestigated customary property rights of Māori, and, more important, in the early 21st century denied a significant section of the population the right of access to the courts. So that was a very important admission on the part of that honourable member. It seems to me that one issue of principle—and I am looking forward to the debate in the Committee of the whole House, because the member has raised some very important issues—is whether we should codify or simply send the matter back to the courts and enable the courts to work it out. I think that is a very important question, and it is a very fair question; I thank the member for raising it.

My preference is to go along with the submission of Dr Michael Cullen, on behalf of Labour, to the review panel that Mrs Turia mentioned, which was set up in March 2009. I quote, for the member’s benefit, exactly what Dr Cullen said: “statutory codification of the common law tests should be retained subject to the panel making any suggestions for changes. To wait upon protracted legal arguments developing a New Zealand jurisprudence in this respect would defeat the purpose of what many are seeking: both certainty and equity.” And in a fair and objective manner, I have taken the comments made by the Court of Appeal in the Ngāti Apa decision, looked at international developments—as I was urged to do by the UN special rapporteur, James Anaya, who put that in his report—particularly in reference to Canada, and come up with tests that I believe create an enduring situation in this area. I use as an example something Dr Cullen also mentioned: “provision should be made for recognition of customary transfer for some period after 1840.”, and that is exactly what we have picked up in order to recognise, for example, the situation with Ngāti Porou ki Hauraki.

Then the second major issue of principle that the honourable member David Parker has raised—and we can go into this in some detail in the Committee stage—concerns the issue of agreements. A Supplementary Order Paper that I will introduce will directly address the concern that many people have, in good faith, raised about agreements. It has been expressed sometimes somewhat pejoratively as “shoddy deals done with Māori and Ministers”. But I refer the honourable member to the Order Paper for today, and particularly to item 46, which deals with the Ngā Rohe Moana o Ngāti Hapū o Ngāti Porou Bill. For the benefit of Mr Horomia, I say that bill gives effect to an agreement that was entered into between representatives of Mr Horomia’s iwi and Dr Cullen in late 2008, and in a spirit of great generosity that iwi has agreed that it could languish, as it were, at the bottom of the Order Paper until this review is completed. These are important matters of principle, and I am certainly looking forward to debating these matters with the member, David Parker, for whom I have great respect, in the course of the Committee stage.

Today we are taking another step towards repealing the 2004 Act and replacing it with a non-discriminatory regime that recognises and protects the rights of all New Zealanders in the area between the high-water mark at mean high water spring tides, and to the extent of the territorial sea. I say to Mr Boscawen that his question this afternoon was fundamentally flawed. He should not confuse the marine and coastal area with beaches, as he always seems to do, because they are two different things. This space will be known as the New Zealand common marine and coastal area. The bill acknowledges that it is an area in which all New Zealanders have interests. As the previous Government acknowledged—and I acknowledge that it was right to do so—there are private interests around the coastline. There are 12,500 private titles. There is general land owned by Pākehā, there is general land owned by Māori, and there is Māori customary land. We will not interfere with those rights because, contrary to what the Greens would suggest, two wrongs do not make a right and one has to respect those private property interests.

This bill recognises the importance to New Zealanders of the common marine and coastal area, and no one can enter on it for the purposes set out in clause 27 and then charge for it—charging is not on. The interests of Māori are recognised in three ways. The bill recognises the longstanding connection of all iwi, hapū, and whānau to a specific part of the marine and coastal area, and that part of the bill builds on what the previous Labour Government did in 2000 when it passed the Hauraki Gulf Marine Park Act. This bill builds on the concept of mana tuku iho. That was done, particularly, to try to incorporate some of the concerns of Mr Harawira, who told a newspaper reporter that he had not read the bill.

The bill allows iwi, hapū, and whānau to take part in statutory conservation processes within the area, including the establishment of marine reserves and conservation areas and the management of stranded whales. What it does, effectively, is to formalise existing practice, because the Department of Conservation has normally been very good at dealing with the right people on these issues. Secondly, customary rights exercised since 1840 in accordance with tikanga Māori can be formally recognised, and the future exercise of those rights can be protected. Finally, as Mrs Turia said, there will be the right to go to court to seek to establish customary title.

The bill is the result of extensive consultation. That consultation started on the day that I became Attorney-General. The debate within Māoridom has gone on for much longer than that, as Mrs Turia said. Essentially, it has gone on since 2003. It started because of what happened at the top of the South Island, where, if there had been a different approach, the issue would never have even gone to court, and I acknowledge that. I refer to the progress of the reform—and Mrs Turia has set it out very carefully—from the time of setting up the review panel under Justice Durie and his team, and then the extensive consultations with a wide variety of interests, from local government to recreational, commercial, and customary interests, to try to see whether we could obtain a good result.

The bill was introduced in September 2010. It had 6 months of hearings in the Māori Affairs Committee. I note with interest that the Foreshore and Seabed Bill had 3 months before the select committee. The report on that bill came back to the House on 4 November, 2004. The second reading, the Committee stage, and the third reading were on one sitting day: 16 November 2004. So no one can say that we have been doing what the previous Government did.

💬 Hon David Parker: At least they considered the submissions.

The submissions have been taken into account. I say to the honourable member—because he raises an important point—that bona fide, decent submissions were carefully considered and incorporated by me.

I want to read into Hansard several excerpts of material I have received, which are representative of the views expressed by some people. I have been told that Māori should feel lucky not to have been wiped off the planet. One correspondent told me that because Māori want the right to go to court, they are covetous, and in breach of the Ten Commandments. The letter that best sums up much of the unfortunate tone of some of the correspondents—and some of the submissions—is this response: “Nowhere else in the world is a small section of the population encouraged to have ideas of ownership and possession above their station.” No member of this House would endorse that kind of garbage. It is totally inappropriate, and I will not entertain that kind of submission. That is why I say to the honourable Mr Parker that it is a very dangerous proposition to determine the quality of submissions by the bulk of them. We have looked very carefully at the select committee—

💬 Hon David Parker: Two hours.

Well, as has been said, he had ample opportunity. The report was available on the Friday. The Supplementary Order Paper will address a number of issues and should alleviate people’s concerns.

I thank my colleagues in the Māori Party for taking part in this longer conversation since November 2008. This is a good-faith endeavour to create an enduring solution, and it is very interesting that when one hears from the lead speaker for the Labour Party, one realises what the issues are. Basically, it boils down to the issue of agreements and to the issue of codification versus non-codification. I am in Dr Cullen’s camp: certainty and equity require codification. Let us have that principle debated in the Committee of the whole House, and then we can move on.

Tēnā tātau. Nā te mea i roto i ahau te whakaaro atu mai i te wā e tipu atu au i te taha o taku nanny, mōhio atu au te mahi kakī whero pērā i te mahi o te tangata rā nā te mea, e haere tahi atu tātau i te takutai moana ki te ruku pūpū, ki te tiki kina, ki te hī kōura, ngā mahi pērā tonu. E mōhio atu tātau mai i te poipoiā ngā pakeke ki a tātau, kaua koe e haere ki reira e kai ana i te kai i roto i te wai. Kaua koe e haere ki reira e ngatia te kai, haere atu ki te tiki tētahi pēke mō tō whānau anake. Nā te mea kite atu au, kei te ngati hoki ngā tāngata o Aotearoa, ngā Māori, ngā tāngata Hāmoa me ngā Pākehā. E ngatia hoki. Kei te ngarongaro haere ngā hua o Tangaroa. E rapurapu atu ngā Māori mō tērā kai kei te ngarongaro atu.

Nā te mea i rongo atu i te wero o wētāhi e tuhi atu ki te Komiti Māori, i a rātau ngā kakī whero e wero atu mō te e take e pā ana ki te pai mō tātau ngā Māori, me wētahi o tātau e haere pērā tonu i te hakahaka haere mō tō rātau whakaaro, kāre e pīrangi e oti atu te pire nei. E rongo atu i te kōrero o te tangata nei a Hōnore Chris Finlayson. E pai ana tērā, e whakaae atu tērā engari, nā te mea i roto i a koe, tae kaha atu mō te oti mō tēnei take anake, nā te mea, e mōhio atu tātau e kī atu wētahi, nōku te takutai moana. Wētahi o te Kāwanatanga, pērā anō tō tātou kōrero i ngā tau ā muri rā engari nā tātau ngāi Māori, kotahi anō te tangata e manaaki, e tū kaha atu mō te takutai moana, ko Tangaroa. Nō reira, e mihi kau ana ki a Tangaroa. E mihi kau ana ki ngā take e pā ana ki te pire nei. Kia ora tātau.

[Greetings to us. I was just pondering about the time when I was growing up as a youngster with my nanny, and how I had already become aware of what rednecks like that member over there are on about, because we all used to go to the foreshore to dive for molluscs, collect sea eggs, dive for crayfish, and all that. The elders were constantly at us, saying “Don’t you go in the sea and eat the catch in there. Don’t you go there and exhaust the supply of seafood; just get enough in the bag for the family.” But I see how everybody in New Zealand—Māori, Samoan, and Pākehā included—has plundered stocks. Tangaroa’s resources are disappearing. Māoridom is trying to resolve this.

But I heard the challenge by some who wrote to the Māori Affairs Committee that they, the rednecks, took issue with the matter relating to the benefits for us, the Māori people, and how some of us carry on about how we do not want this bill passed. I heard what the member the Hon Christopher Finlayson said. That is fine; I agree with it, but only for this matter. We know that some have stated that the foreshore really belongs to them. Some in the Government share that view, just as we did years ago. To us, the Māori people, there is only one person who is able to take care of the foreshore and sustain it, and that is Tangaroa. So I acknowledge Tangaroa and matters relating to this bill. Greetings to us.]

I go back to the delivery of the 500-page bill on Waitangi weekend, when most Māoris were doing everything relevant to Māori. If one were a cynic, one would wonder why it came out that weekend. Then, on the first sitting day of Parliament in 2011, the bill got shot through in 2 hours. There are a host of reasons for that. That there was a denial in relation to getting legal advice is something that is quite brand new in terms of this House and its practice. Everybody has talked about 2004, and I must note, before I forget, that I was interested in one of the key points in relation to what Minister Finlayson said about the test. He aligned it, and said it was akin, to the examples in Canada. I do understand about customary property in Canada. A whole lot of it is out on the icebergs and out in the tundra, and I am interested to see how he correlates those tests with whatever he is copying from Canada.

💬 Hon Christopher Finlayson: Don’t diminish this debate with rubbish.

I do not intend to diminish this debate with rubbish, because I have some respect for Minister Finlayson. I sat on the hill with him on Saturday, I think it was, and that was great. However, I will not stand for the other rubbish about rushing through this bill, dishing it out on Waitangi weekend, and then blaming everything on 2004. Let me tell members this. We could have done better, we went too fast—

💬 Hon Member: Talk to Ngāti Porou. They want it through as fast as possible.

That is right; we went too fast, in my mind, but there was a fascinating response to that by National. This country was plastered with “Iwi/Kiwi” billboards. It was plastered with “Barbecues on the beach only by Māoris”, and all of that rubbish. I say to members that yes, we could have done better in 2004, but what we did do was learn from it. We learnt from it.

Before National took command of the Government benches it promised to repeal the legislation and was quite definitive about the framework and how it would look. This bill has ended up nowhere near that—nowhere at all. It has not ended up like that—

💬 Paul Quinn: So why was the Electoral Finance Act rammed through?

—and Mr Quinn knows that. Labour will be opposing this bill, and I hope during that period of time the Māoris over there will understand the same issues that we understand.

💬 Paul Quinn: Of course, Ngāti Porou have got a deal, haven’t they?

Certainly they have had a deal, and some iwi, hapū, and whānau have lived by the takutai moana for generations. As I said, I was a tamariki, a youngster, who went with my nan and my family to the takutai moana. The kai in the takutai moana was plentiful.

I sit here and wonder and ponder about the debate around ownership. Māoridom in lore understands that there is only one person who guides and owns the takutai moana, and that is Tangaroa. Nobody mentions that here. We have skewed off centre on to tenure that is not necessarily, and especially in this bill, going to advance or be of benefit to Māoridom. I am pleased to hear the Minister say that the private titles will not be touched. That is something to start off with; there are a whole lot of those private titles.

We have always maintained that we are willing to work responsibly to achieve an enduring solution to the foreshore and seabed issue. We have always maintained that, but we were short-changed in the sense of what finally came out in the legislation and in the unprecedented rushing to get it up and through within 2 hours. Everybody said that it was Tau Henare. That is what the Government said. It was not Tau. I know Tau pretty well. He was pushed and shoved to rush it through. He was under instruction to make sure of that. We have been willing to consider alternatives to the current Act, including its repeal. We have not stoked race-based fears, which seem to have come in too fast, and there were too many from both ends of the spectrum.

We are dismayed that the Government has now adopted a process that has blocked any legal advice on the effect of the changes to the threshold test for establishment of a customary marine title. That is outrageous.

💬 Hon Christopher Finlayson: Crocodile tears! What did Auntie Helen do in 2004?

That was 2004; we are talking about now. We are not denying that. We are not denying that, but when the Minister came in there was a promise that he would make it better. Ignoring the 5,000 submissions is unprecedented in this House. I found it very interesting that the Minister said that it was not the bulk or the content of the submissions that should count. That is how we get voted into this place—by the majority. That is why we as Māori, as a minority, understand what happens when the majority run ragged around us.

I assure members that what Minister Turia said was very, very interesting. I recognise Minister Turia and John Tamihere for their part in the 2004 bill right up to the last minute. We woke up one morning and she was gone.

This bill should have been postponed because of the Canterbury earthquake. It should have been strung out. There are a lot more important things going on that are putting Māori at risk right now in this country. The cost of living has skyrocketed through the roof. What do the Māori Party and the Government care about that? As for jobs under National, this is the highest unemployment rate for Māori since the Second World War. What is the Government going to do about this? This is the highest Māori unemployment rate since the Second World War.

💬 Paul Quinn: Stick to the bill!

I am sticking to the bill, but I am trying to say why it should be important, in the sense of what we should be talking through in this House. This member kept the unemployment rate down at 6 percent; that is what this member did. This member made sure that food prices were down. This member made sure that there were 14 settlements lined up and made it very easy for the current Minister when he got in to finish off. That is what this member did. This member made sure about that. This member made sure that Māori Television started and that the second channel started so that we could watch it, so that all members of this House could be on it, and so that all members of this House could be seen by the public.

This bill is a disgrace. It was rushed through unnecessarily. It is being rushed through now unnecessarily when we should be looking for and creating a better space. It is important that we get the best solution that makes it better for everyone. The red-necked people sending in submissions need to be chastised and those who are into extreme benefits for one class of people need to be not recognised. Thank you.

This is one of the more surreal debates, if not the most surreal debate, I have heard in my just about 9 years in this Parliament. The arguments made by one side are now being made by the other, over an issue that would in other circumstances be quite amusing, but actually is not, because, although there is a great deal of shouting going on here, at the end of the day it is Māori who will be the ones who pay for this utter disgrace and this fallacy that is being repeated just a few short years after the first iteration.

The Green Party has fought this legislation in all its various forms in the last 8 years and we will continue to fight it, because the Green Party will never put its name to a confiscation of Māori land. We will never put our name to that. It is with enormous distress that I stand here listening to colleagues who stood with me in 2004 to say the same thing, and who now agree to put their name to exactly the same confiscation of Māori land. Members should not get me wrong; I am talking here about Tariana Turia in particular, and the Māori Party, which was born out of the opposition to the confiscation that this bill undertakes. It is not an argument to simply say the legislation is good because it replaces old discrimination, old confiscation, if all it does is replace it with exactly the same thing. That is what is happening with this legislation. It is a repeal and replace, with effectively the same bill that Labour put up, mixed with the Ngāti Porou negotiations that occurred a few years later. Anybody who looks at it can see that that is the case. No amount of intellectual “pretzelism” from Māori MPs in this place will change that fact.

Just as last time the Green Party held the Labour Māori MPs to account, today I need to hold Tariana Turia and the Māori Party MPs to account for their complicity in the confiscation of Māori land. Let me set out for the record what the Green Party position is, and has been since 2003, when the Court of Appeal first made its decision. In our view, collective customary title is to be upheld, and is not to be extinguished by legislation. Public access to all parts of the foreshore, whether held in customary title or in private, freehold title should be—and can be—protected. In our view we can protect the transfer to freehold title of customary land by a simple amendment to Te Ture Whenua Maori Act and that will ensure that no customary title in the foreshore and seabed land could ever then be onsold.

It is a fairly straightforward position. It is one I put to Michael Cullen, as did Jeannette Fitzsimons, in 2003 and 2004. It was rejected by Labour then, but it is accepted by Labour now. I heard David Parker setting out precisely that solution to that issue in this bill. I am pleased that Labour has changed its position, but this should never have had to happen in the first place. The solution was obvious then, and it is obvious now. A confiscation of Māori land is not necessary to resolve this issue.

In a second reading debate it is traditional for MPs to talk about the select committee process, and I will talk about that briefly, and draw some parallels. The select committee process was also simply a Groundhog Day—a repeat of what had happened last time, but with different characters playing the same parts. It distressed me a great deal to see that the Māori Party representative on the Māori Affairs Committee played exactly the same role that Māori Labour MPs did the first time around. One of the ways it was most obvious was when Māori came to the select committee and talked about their issues, their concerns, and their opposition to the legislation—just as they did last time, and just as they did to the panel. Te Ururoa Flavell would then ask them whether they had read the bill. If they had not read the bill all the way through, he would deny their ability to understand the impact of the legislation on them, their whānau, and their land. He denigrated their tikanga, their right to put forward their view on what this legislation would do to them, their whānau, and their customary rights—their tikanga Māori.

That is exactly what Michael Cullen did when we toured around in 2003, talking about the previous legislation. Michael Cullen told Māori that they did not like the bill because they did not understand it, and we heard that through the select committee process in 2004, as well. What did we hear from the Māori Party representative on the select committee this time? We heard the same thing: “I’m sorry, Māori people, but you do not like it because you do not understand it. If you just understood it better, you’d be OK.” That denies entirely the Māori experience of what confiscation looks like and what it means. Māori people have watched the confiscation of their land for generations, and they have fought it for generation after generation. They have fought it everywhere: on the land itself, in protests, in the courts, and in Parliament, decade after decade. Māori know a confiscation when they see one, and they saw it in this legislation. That is what they told us. But the Māori Party told those submitters they were wrong, just as Michael Cullen and Labour did last time.

Labour now complains about the process. It complains that we did not get the chance to discuss or make changes to the bill after receiving the 500-page report on the bill, and Labour is right about that. We did not get a chance to discuss it. We had 2 hours.

💬 Paul Quinn: You weren’t even there that day.

Some will say that they read it word for word, and we can believe them if we like. Some will say that, but I sat there and watched National and the Māori Party agree that we would not look at the report, and, not only that, that we would also not consider it. [Interruption]

💬 Hon Nanaia Mahuta: I raise a point of order, Mr Speaker.

The ASSISTANT SPEAKER (Eric Roy): I think I can anticipate what it is. The member will desist from being quite so boisterous.

💬 Paul Quinn: Speaking to the point of order—

The ASSISTANT SPEAKER (Eric Roy): I have ruled. The member is being too boisterous. I have ruled. You are too boisterous.

Thank you, Mr Assistant Speaker, and I thank my colleague. I sat there and watched as the Māori Party and National members agreed that they would not discuss this legislation. I watched them do that, because I was there at the time. Not only was that the case but the Māori Party and National members decided that not one change would be made to the bill. What that means is that for every single Māori person, every single whānau, hapū, and iwi who came to that select committee, not a single word they said made any difference to National or the Māori Party about what this bill would do. It was a waste of their time. They need not have bothered coming. The whole idea of the process being one in which Māori could have a say was rubbished because the Māori Party and National denied them the right to have any changes made in this legislation.

That is exactly what Labour did in 2004; in 2004 no amendments were made to the legislation in the select committee either. At the end of the day, I agree with David Parker that this legislation on the confiscation of Māori land is about a political decision on where votes will come from. For some reason the Māori Party has decided that its political future lies with those who agree with confiscation of Māori land. The Green Party does not, and we will never support confiscations such as are provided for in this bill. We refuse to put our name to this travesty, and we ask, as we have before, that the Māori Party refuse to put its name to a confiscation of Māori land.

I rise on behalf of the ACT Party to speak on the second reading of the Marine and Coastal Area (Takutai Moana) Bill, and I rise on behalf of New Zealanders throughout the country who oppose this bill, just as one of my predecessors, former ACT deputy leader Ken Shirley, rose in this House in 2004 to oppose the Foreshore and Seabed Bill, which was being rammed through by the Labour Government. ACT opposed that legislation because it was a travesty. It was a law that removed from iwi their fundamental right to have their day in court, left Māori feeling like second-class citizens, and led us to a path of fury, frustration, and division.

ACT’s stance on the foreshore and seabed has always been consistent. In 2004 ACT argued that claims to customary title over the area of the foreshore and seabed should be left to the courts to decide. Today I reiterate that stance. ACT believes that the courts should decide this issue. I reiterate the stance of the ACT Party by saying that we support the repeal of the 2004 Act, and oppose the passage of the Marine and Coastal Area (Takutai Moana) Bill. Although National and Labour members claim that the bill restores the right of iwi to have their day in court when claiming customary title over an area of foreshore and seabed, the fact is that it does not.

💬 Hon Christopher Finlayson: Codification or no codification?

At this stage I acknowledge Mr Finlayson, who has just referred to codification. I will come back to codification very shortly. I acknowledge Mr Finlayson’s acknowledgment of the speech and contribution by David Parker, because it seems that Mr Finlayson, alone in this House, is prepared to acknowledge the contribution of an opposite number.

When the Prime Minister delivered his statement on the first sitting day of Parliament this year, we heard responses from the party leaders. Tariana Turia got up and said that she almost felt ashamed to be a Minister in the Government and to be supporting the Government, given the level of unemployment among young Māori. Earlier this afternoon, when I listened to David Parker, whom Mr Finlayson generously acknowledged, I felt the same shame that Tariana Turia referred to on the first sitting day of this year. I felt the shame of listening to the interjections and contributions of Tau Henare, Paul Quinn, and, more recently, Simon Bridges. Although the leader of the Green Party does not want to record and acknowledge those contributions so that they are written into the record of Hansard, I am prepared to record them.

This is an issue about two things. It is an issue about tests over customary title, and about the benefits that come from those tests. In essence, we have two views. One view states that the tests for granting customary title and all that comes from it are far too loose, and that far greater areas of customary marine title will be awarded as a consequence of the loose tests laid down in this bill. The contrary position is the one espoused by people like a number of Māori Party supporters who came and opposed this bill and a number of iwi who said that the tests are far too tough. In fact, Ngāi Tahu came to the select committee hearing in Christchurch and presented a map of the South Island with the 200-mile economic zone marked on it and said, essentially, that everything within that 200-mile zone was theirs.

Tariana Turia referred earlier this afternoon to the contribution of the Coastal Coalition. I acknowledge the work that the Coastal Coalition has done, and in particular the work of Hugh Barr and Muriel Newman. The position of the Coastal Coalition is not the ACT position. Unlike the Coastal Coalition, the ACT Party firmly believes that iwi should have their right to go to court. They should be able to bring a claim for customary title.

I felt ashamed when I saw some of the material put out by National on this bill.

💬 Hon Tau Henare: Give up your warrant; go on. Give up your warrant.

I am looking at an extract from the Beehive website, which is headed “Setting the Record Straight”, and states: “You may have heard opponents of the Marine and Coastal Area Bill making inaccurate”—

💬 Hon Tau Henare: No you wouldn’t, would you, because you like the cars.

Let me interrupt my speech and acknowledge Tau Henare. I say to Mr Henare that I felt ashamed at the way he treated the New Zealanders who appeared before that select committee.

Hon Tau Henare Is that right?

Yes, it is. I felt ashamed, and I feel ashamed, that I am supporting a Government that plays the ACT members off against the Māori Party members. I felt ashamed to see the way some New Zealanders who appeared before that select committee were treated. Yes, there may have been members who had eccentric views, and there may have been members who had racist views, but the role of a select committee is to listen to what the public of New Zealand have to say and to treat them with respect. People who make a submission on law do it out of the goodness of their heart and what they believe within them.

Let us look at the Government’s website and an extract headed “Setting the Record Straight”. It states: “You may have heard opponents of the Marine and Coastal Area Bill making inaccurate claims about the legislation. We want to set the record straight:”. The Beehive website goes on to summarise a few of the key issues. As Mr Finlayson said, it is about codification; it is about the tests. The website states that the opponents claim that “The bar has been lowered on the qualifying criteria so anyone can apply.” It further states: “The criteria to apply for customary title is extensive. The most rigorous test is proving uninterrupted and exclusive use and occupation of an area of the common marine and coastal area, from 1840 to the present day. Many areas of New Zealand are not eligible because of this requirement.” That is interesting, because that is a very tough test. I note that the Prime Minister, in reply to comments by Jim Matson, who is a long-time National Party supporter, in the Sunday Star-Times 2 weeks ago, made the same comment. Although the article appears under the name of John Key, I suspect it was written for him by the office of Mr Finlayson. It states: “The test for customary title requires continuous exclusive use and occupation of an area since 1840, and as you can imagine, this is not an easy test to meet.”

Well, no, it is not an easy test to meet, but it is not actually the test. The test is not requiring continuous exclusive use and occupation of an area since 1840. No sooner had the Attorney-General finished his first reading speech back in September, he said that he intended to lodge a Supplementary Order Paper to change the bill that he was presenting. He said: “We’re not going to have a test that requires you to show exclusive use. We’re going to allow people who have used it, we’re going to allow people who have boated through the area, we’re going to allow people to fish through an area, and the mere fact that they have done that does not preclude an iwi or hapū coming along, making a claim, and saying that they have had continuous and exclusive use.”

The Government has tried to reassure New Zealanders, it has tried to put New Zealanders at ease, and it has tried to say that there is not an issue—the Government is popular; back the Government. The ramifications of this will come back to make New Zealanders rue it for many, many years to come.

Another key issue here is that the Prime Minister says that, put simply, the bill is a new approach to the ownership of the common marine and coastal area. It guarantees free public access to New Zealanders. It also protects fishing rights. If someone is using the marine and coastal area for something at the moment, then the bill guarantees that person will be able to continue to do so. It guarantees it. We are told we are allowed to access an area, but we have no guarantee of use and occupation.

We are told there will be some 385 changes to the bill. Has the Government had the courtesy of discussing with the people of New Zealand what those changes are? No, it has not. We have heard this afternoon that a Supplementary Order Paper will be lodged in the House tomorrow, and we will be debating it on Thursday.

The ACT Party is bitterly opposed to this bill. It will deny rights to some who have them, and give rights to others who do not have them. It will take from some, and give to others. The ACT Party strongly opposes this bill, and we will fight it to the bitter end. I hope that the other speakers in this House are given greater courtesy than Mr Parker had shown to him this afternoon. Thank you.

I have listened to various interpretations of what is happening around the Marine and Coastal Area (Takutai Moana) Bill. I want to speak about the bill, and about the Māori Party’s activity in getting support for it.

I stand today, driven by the support of the wider Māori Party, to speak on the second reading of the Marine and Coastal Area (Takutai Moana) Bill. Two months after submissions closed on the bill, Te Karere carried out a poll of 1,002 Māori voters from the Māori and general rolls, who were interviewed during the month of January. There was only one percentage point difference between those who thought the Māori Party should support the bill and those who thought the Māori Party should not support it. But by far the greatest result was a massive 37.2 percent of voters who did not know whether to support it. This points out to me the insignificant role, in terms of the life of New Zealand and day-to-day needs and issues, that this bill plays in their lives.

Minister Turia and I attended a number of iwi leaders’ hui. At one hui we attended in Wellington, 70 tribal and hapū representatives were present. In the discussion on this bill, some opposed it and some supported it, and they gave their reasons for doing so. But at the end of our discussions the entire group expressed their support for the Māori Party’s stand in repealing the 2004 Act as we had promised. Once again, on Waitangi weekend—just last month—a similar hui was held and a similar number of leaders were there. Once again, they voted their thanks and their support for the Māori Party’s activity around this bill. So any talk of 95 percent of Māori opposing this bill is not only fabrication, it is mischievous.

The Māori Party cannot afford to walk away. We could not face our future giving away the best opportunity we have to make a difference. We knew that neither of the larger parties on its own, red or blue, would touch this legislation with a bargepole if it was not to achieve progress this term. Yet not one Māori has come to me and said: “Please, do what you can to entrench the 2004 foreshore and seabed bill for the rest of time.” In fact, my electorate, Tāmaki Makaurau, told me forcefully in the media yesterday to “hurry up and repeal the Foreshore and Seabed Act”, and that was after a number of hui that I had held this month, but also earlier hui.

Of the close to 4,000 submissions received on the 2004 Act, 94 percent opposed it. Five years later, in the 2009 ministerial review of that Act, the bitter opposition to the 2004 Act was still profoundly evident. The first recommendation of the ministerial review to the Government was as follows: “First of all, the 2004 Act should be repealed. That Act is built on such shaky foundations that it should be repealed rather than amended. It is necessary to start again. It also gave Māori such umbrage that many of them will not buy into an alternative statutory regime unless the old Act is seen to be repealed.”

And so what have we the Māori Party done? Very simply, started again. We have started again by restoring the ability for customary title to be recognised. This bill explicitly recognises the enduring mana-based relationship of whānau, hapū, and iwi to the marine and coastal area of their rohe. The automatic award of mana tuku iho demonstrates that. Māori do not have to prove anything in order to achieve that recognition; it is theirs by right as tangata whenua. But what is important is that this bill starts again by establishing the fundamental and, indeed, pivotal importance of tikanga in determining title. The 2004 Act did not incorporate tikanga in its tests. This bill, the takutai moana bill, encompasses tikanga as a key element in the test for customary title, and allows for differences in tikanga from group to group.

The tests, of course, have been a major concern for whānau, hapū, and iwi and a key point of negotiation for us in the duration of this bill. We have argued for recognition of different ways that Māori have continued to exercise kaitiakitanga over foreshore and seabed areas. We acknowledge, too, the very real need to ensure that raupatu claimants are not excluded through the requirement to satisfy the court or Crown officials that raupatu did not cause a substantial interruption to their exclusive use and occupation of the takutai moana.

We welcome the initiative taken by hapū of Ngāti Ranginui iwi, who provided the wording that would exempt iwi and hapū from having to do that, and would give raupatu iwi the certainty they seek that raupatu will not be deemed a substantial interruption when they make claims for title. And we acknowledge the very significant contribution made by Ngāi Tahu to this aspect of the debate. Mark Solomon spoke passionately to the Māori Affairs Committee about Ngāi Tahu being disqualified from the bill by reason of their generosity. He was speaking about the practice of manaakitanga—of hospitality, of sharing—which was demonstrated in their sharing the bounty of the sea and the bounty of the foreshore. We believe that consideration of manaakitanga is vital to a successful understanding of the framework around this bill, and we are pleased that through our intervention it now forms part of the preamble to the bill.

I think it is important to note that a historical breach of the Treaty does not automatically break the chain of continuity necessary to prove exclusive use and occupation. It is possible that customary title could exist in an area where breaches of the Treaty have occurred. It all depends on the facts and circumstances of each case.

Everyone in this House knows that this bill is not the perfect bill; it will not please everyone. But it provides recognition and protection of customary rights, and that is why Ngāti Apa took a case to the Māori Land Court all those years ago—to have those rights recognised. It has not happened overnight. Many thousands of submissions, of hui, of legal papers, of frameworks, of polls and surveys have been undertaken since 2003, when the Court of Appeal agreed that Ngāti Apa could have customary title investigated by the courts. This bill restores the ability of Māori to seek customary property rights in the High Court. Customary interests extinguished by the 2004 Act are restored. And as Minister Turia said earlier, this bill places the burden of proof on the Crown to prove that extinguishment of customary title had occurred.

I concur with the thinking of our leaders who have encouraged hapū and iwi to start preparing for the negotiations process and to establish a precedent. We have worked hard to ensure that there is funding in place to be made available to iwi in a manner similar to how claimant funding is provided for the Treaty settlement negotiations process.

We do, of course, recognise that the bill does not settle all the issues, but it does keep them alive. There was a very strong message from the submissions made by whānau, hapū, and iwi that we must apply every effort to ensure the momentum is maintained in creating a new, Treaty-based, longer conversation to recognise and give effect to the mana of hapū and iwi. The Māori Party pledges our support and our ongoing commitment to that call, a call we will take up with passion in the constitutional review, and, indeed, a call that will continue to motivate us in every policy outcome we seek. And if there is one key challenge that we must adhere to in every successive stage of this bill, and every bill before the House, it will be the message of the 2004 hīkoi.

I am pleased to take this opportunity to support those who have worked so hard to bring the Marine and Coastal Area (Takutai Moana) Bill to this point of the legislative process. They are my colleagues the Hon Chris Finlayson, Pita Sharples, and Tariana Turia, and the Māori Affairs Committee, which has heard so many strong views so often over such a long period of time. I think it has done a very good job in that respect.

There is no doubt that strong views may well continue to be expressed on this legislation. But, in a sense, it is just another step that this Parliament and Governments in New Zealand over the last 20 or 30 years have taken, following a long process of balancing and incorporating different views of history, justice, and property rights into the legislative and constitutional structure of New Zealand, and each time those steps have been taken similar anxieties have been expressed. They are anxieties that are understandable and, on occasions, including this process, they have led to an improved balance of rights and recognition. I can think of two examples where similar anxieties have been expressed—by both Māori and others—one was around the fisheries settlement. My electorate has about 3,000 miles of coastline, so the fisheries settlement mattered. Many of the anxieties that were expressed at that time have not come to pass.

Another step taken by Parliament and Government in New Zealand was when the first large-scale Treaty settlements occurred in the mid 1990s. Again, those decisions were surrounded by a good deal of anxiety. But I say that in each of those cases progress was made. It was made because people had a sense of fairness about the way the dealings were done, and those dealings led to certainty. There is no doubt that when people have certainty about their rights, particularly their property rights, it enables them to take a forward-looking view based on enterprise and progress, rather than a backward-looking view based on injustice or uncertainty. It allows them to get on with making a positive use of those rights, as a liberal capitalist economy allows them to do. This has certainly been the case in the follow-on from the settlement of fishing claims and the follow-on from Treaty settlements where those who have settled, almost without exception, have found it to be a positive experience. In the case of fishing rights, it has allowed the development of one of the better fishing management systems in the world and the development of a strong base of wealth and expertise around this certainty—not just certainty for Māori, but certainty for everyone else who has an interest in fishing in New Zealand.

That is the context in which I think we should see the Marine and Coastal Area (Takutai Moana) Bill. It is based on three important principles. The first principle is that the courts should be open to all citizens. The second principle is that all property rights should be respected, and this includes common law rights—that is, rights established by use and custom. The third principle is that we should maintain public access to beaches.

It may be that some people are not aware that common law rights exist, but they have existed for hundreds of years in British-type systems, and they exist now. Existing property rights have to be respected. I suspect that a lot of this debate has boiled down, as I think David Parker said, to a debate over whether to codify the tests for customary and other rights. The Government, along with the Māori Party, has made a decision to codify the tests. The reasons relate to the points I made earlier. Firstly, codifying the tests properly makes this debate one that is conducted by Parliament rather than by just the courts alone. Secondly, codifying the tests will give us more certainty, which enables people to feel that these issues are settled in their sense of fairness and justice, but also more certainty in the sense of the economic use of the property rights. Experience in other jurisdictions has shown that where the courts are left to determine common law rights held by indigenous peoples it is a lengthy, complex, and inconclusive process—

💬 Hon Christopher Finlayson: And expensive.

—and very expensive, whereby the lawyers win more than anyone else. Maybe in Canada or Australia they can afford to do that where these rights are pretty peripheral to the mainstream economic activity, but in New Zealand we need as much certainty as we can get. It is best to get on and do it.

We should accept that there are strong views on the bill. Both National and the Māori Party have worked hard to incorporate what might reasonably deal with the anxieties that have been expressed on both sides of the argument. The fact that Māori believe they will get nothing and the Coastal Coalition believes that Māori will get everything tells us that we are probably about right. In our pragmatic approach to these constitutional-type issues in New Zealand, that is not a bad measure of success. It is clearly not the case that this legislation—

💬 Hon Trevor Mallard: Everyone thinks you’re wrong.

Everyone thinks you are wrong. I could not have put it better myself. It amounts to the same thing.

💬 Hon Trevor Mallard: I’ve been in that position often.

Mr Mallard has achieved a bit in his time, too. If everyone thinks we are wrong, we are about in the middle. It is probably the next most pragmatic step we can take.

I particularly acknowledge today the way in which the Māori Party has dealt with this issue. It is always difficult for a small party in Government. If it was not this issue that put pressure on both the Māori Party and the ACT Party, it would have been other issues. They have articulated strong views. We have heard those views from both the ACT Party and the Māori Party. We have the choice as a Parliament to just drop the issue because it is too difficult, and hope that in the future it will be solved or that someone else will solve it. That would be quite an unacceptable outcome. It is the proper role of smaller parties to take strong positions, as long as they respect the need for the Government and Parliament to take a position that can actually be implemented, because those are not the same thing. In both cases here, the smaller parties—certainly the ones the Government has dealt with—respect the role of the Government in coming to a conclusion to a debate that would otherwise go on endlessly and, in my view, destructively. That is why the Government is taking a step, and particularly wants to acknowledge the Māori Party with the pressures that have come to bear on it in making the very difficult but right decision to back progress, rather than to have continued argument. That always takes a certain amount of courage, and finding that courage is admirable. It is much harder for a smaller party to do that, so I acknowledge today the Māori Party’s effort.

The bill will be subject to vigorous debate—we expect that. We know there are strong views about the bill, but it is important for New Zealand to take pragmatic decisions in order to move forward and build the basis for the kind of economic and social progress that comes when old injustices are settled, recent injustices are dealt with—as the legislation we are repealing created—and we can look ahead. There may be further arguments about this issue in the future.

Tēnā koe, Mr Deputy Speaker. Tēnā nō tātou katoa e te Whare. I begin my first formal speech in Parliament as Te Reo Motuhake o Te Tai Tokerau by extending my gratitude, firstly, to my immediate whānau, my wider whānau, and all the people of the north for their continued and unwavering support over the years. I also extend my gratitude to the tino rangatiratanga movement for always reminding me of the importance of refusing to back down on matters of principle; to all those who have contacted me over the past few weeks offering their support for the principles I stand by and for my commitment to justice and equality for Māori, wherever they may be; and, finally, to Labour and my whanaunga Shane Jones for allowing me the opportunity to speak on the second reading of the Marine and Coastal Area (Takutai Moana) Bill.

I note how right David Parker was in recognising the clear differences between me and Labour over the 2004 Foreshore and Seabed Act—differences that still exist in the positions we take today on this new bill to confiscate Māori rights. I have said it before and I will say it again here: whether or not I am a member of the Māori Party and whether or not I am a member of Parliament does not change the fact that when Māori rights are under threat, somebody needs to speak up and challenge that threat. If the Māori Party will not speak up—indeed, if the Māori Party chooses to be party to that threat to Māori rights—then be assured that I will not shirk from speaking up and challenging that threat.

When the Minister for Treaty of Waitangi Negotiations says that “Māori will have to show that they held exclusive use and occupation of the area since 1840, without substantial interruption, and that the area in question was held in accordance with tikanga”, he is saying that the National - Māori Party Government intends to use exactly the same test in 2011 that 50,000 Māori marched against in 2004. When the Prime Minister says that customary title will not be easier to achieve but it is not the Government’s job to make the tests easier, then he is spitting in the eye of the Māori Party for backing a deal that is likely to break its back at the next election. When the Māori Party actually says in its video “If we were negotiating on what is fair, just, and moral, then we would have a very different outcome.”, please let it be known to all who care to take notice that I am glad that I am no longer a member of a caucus that has finally realised that the price of its coalition with National is its support for a bill that is unfair, unjust, and immoral.

When the Māori Party says that that is the choice facing Māori people and that it will be guided by them, then I have to ask which people they are talking about. Is it the iwi leadership whom the Māori Party went out of its way to promote during this process and who refused to support the bill and subsequently refused to attend the first reading of this racist piece of legislation, even though the Māori Party begged them to come and show their support, and who are again conspicuous by their absence at this second reading because they simply do not accept that this bill will achieve anything for Māori? Or is it the people behind the thousands of emails, phone calls, texts, Facebook messages, and tautoko that I have been getting from Māori wherever I go in Aotearoa, who support the same principles that I do and say they will walk away from the Māori Party if it supports this racist legislation? When the Māori Party says that saying that 95 percent of Māori are opposed to the bill is wrong and mischievous, then I have to ask what about the 72 submissions that the Māori Affairs Committee received from marae, hapū, iwi, and Māori landowners’ organisations and collectives. Of those 72 submissions, only one—only one out of 72—supported the bill. Twenty submissions said it should be put aside or withdrawn, 33 said it was not much different from the 2004 Act, 34 said the bill needed significant amendment, and 37 either did not support it or outright opposed it.

If I can, please let me quote from some of those submissions, because it is important to remind the Māori Party of the issue that got us into Parliament in the first place. “The facade of saying no one owns the foreshore and seabed equates to ongoing extinguishment of our ownership rights and interests.”; “The bill is so flawed it should be withdrawn.”; “The country has not learnt from past injustices and continues to see extinguishment of Māori rights as a legitimate problem-solving process.”; “The bill knowingly breaches Crown obligations under the Treaty.”; “No real enduring resolution can occur as long as one Treaty partner continues to dictate to the other the nature and extent of their rights, and the process by which those rights are recognised and upheld, or not.” And the final quote: “Māori should not support an equally unjust law.”

When the leadership of the Māori Party moved to force me out so that they could say that the Māori Party unanimously supports this racist legislation, did they seriously think that the 50,000 who marched against the confiscation of their rights in 2004 will accept the ongoing confiscation of those rights in 2011? Do they seriously think that all those who joined the Māori Party will stay, if the party sells out its people on the very issue that gave birth to the party, and that those same people are likely to vote for the Māori Party, which supports the ongoing confiscation of those rights? This I know: all four Māori Party MPs who voted for this racist legislation did so without going back to ask their constituents what they thought about it. All four Māori Party MPs who voted for this racist legislation have publicly expressed grave doubts about the bill itself. All four Māori Party MPs who voted for this racist legislation have been told, in no uncertain terms, by their constituents that they do not support it. All four Māori Party MPs who voted for this racist legislation have been called upon by iwi in their electorates to withdraw their support for this bill.

The analysis of the submissions makes it quite clear why Māori do not support this bill. It fails to properly recognise and provide for the mana of hapū and iwi. It continues the original confiscation by vesting in the common space. It sets the use and occupation test too high. It limits the content of customary marine title. It introduces a costly adversarial and complicated court process. It remains discriminatory to Māori. It continues to breach Te Tiriti o Waitangi, tikanga Māori, common law principles, and international human rights standards, including the United Nations Declaration on the Rights of Indigenous Peoples.

This bill is deserving of nothing more than contempt and dismissal for it preys on the desperation of the Māori Party to be seen to be doing something about the issue from which it was born, while highlighting the determination of the National Party to ensure that Māori will actually get nothing from that same piece of legislation.

💬 Hon Christopher Finlayson: Third-rate slogans.

With all my heart and all my soul—and all quotes too, I say to Mr Finlayson, his included—I urge the Māori Party, indeed, I beg the Māori Party, first, to recognise the fact that it has been sold down the river by its National Party coalition partners on this bill; second, to accept the reality that it occupies a cold and lonely place in the hearts and minds of its people for supporting this bill; and, third, to do the honourable thing by its people by withdrawing its support for this bill. Without the support of the Māori Party caucus this bill will die the death it truly deserves.

Tū te Ao Māori, tū te rangatiratanga, tū motuhake; tēnā tātou katoa.

[Long live Māoridom, sovereignty, and independence; greetings to us all.]

When the High Court ruled in mid-2003 on the Ngāti Apa case, it set off a chain of events that has vexed successive Governments ever since. I recall back in 2003 a very strong public mood emerging that said very clearly that the foreshore and seabed belonged to every New Zealander, and that it was part of our inalienable birthright. I led a public march in Nelson to that effect at the time, and I said then—and some have tried to throw this quote back at me—that if we legislated for differential rights for differing groups of the New Zealand population we were starting down the path to separatism and anarchy. I hold to that view today.

It is interesting that the previous Government, in its response to the court’s decision at that time, in good faith started the development of legislation that would recognise the foreshore and seabed as public domain held for all New Zealanders. United Future worked closely with Dr Michael Cullen and Prime Minister Clark to develop that legislation in the 2003-04 period. Somewhere along the way, to quote Harold Macmillan, Labour ran into “a little local difficulty” and effectively lost its numbers, which meant that the combination of the United Future members of Parliament and the Labour members of Parliament were no longer a majority in this House.

In March 2004, having put before both its own caucus and our caucus a bill that vested the foreshore and seabed into public domain, Labour suddenly found, for reasons that were internal to it, that it needed to bring on board some others to get the numbers. Those others were in the form of New Zealand First. The white knight from Tauranga, as he then was, came charging over the horizon. Do members remember the advertisements in the newspapers featuring Winston Peters standing coyly on the beaches having saved them? The price of his intervention was to remove any reference to public domain from the legislation, and United Future pulled our support at that point. That intervention of New Zealand First set in place the tension that has been there ever since, which this bill today finally repeals.

The concept of Crown ownership was an assertion of something that was never there before. It created the possibility of the Crown as landlord. The Crown could privatise the foreshore and seabed. The Crown could limit access. The Crown could sell it. The concept of public domain, which saw every one of us having an equal, unalienable, and indivisible right of ownership, mitigated against that happening. But thanks to New Zealand First we ended up at the end of 2004 with legislation that asserted, for the first time ever, explicit, specific, and sole Crown ownership of the foreshore and seabed. That gave birth to the Māori Party and set in place an issue that has festered ever since.

When that legislation was passed, many claims were made similar to those being made now—that is, any form of settlement or recognition of customary title would see people excluded from the beaches, and the traditional access that we all assumed we enjoyed done away with. It is a bit like Chicken Licken, in that the sky has not fallen in subsequently. We have learnt to live collaboratively, constructively, and positively alongside each other. New Zealanders still go to the beach in throngs every summer, and their rights have not been impeded. The festering sore was the issue of Crown ownership.

When the matter came back on to the agenda in 2009, the Attorney-General, the Māori Party, and others started to look at options for resolving that issue that would not diminish those rights that had hitherto been enjoyed by all New Zealanders. That is where the modern version, if you like, of public domain—shared space—comes into play. The Minister recognises the point that Helen Clark recognised way back in 2003, which Michael Cullen recognised then and would have loved to have legislated for. That old English notion of the commons is still relevant today and still provides the solution to this issue in an enduring and permanent way and relieves a lot of the tension that has been associated with it.

I listened to the Deputy Prime Minister and he made a point that I think is interesting in terms of the opposition to this bill. There has been a lot of it. I have received hundreds, if not thousands, of emails. Many are well meant; most are, dare I say it, misinformed; some are downright malicious; and others, particularly those emanating from the Coastal Coalition, are simple, racist lies. The issue here is that New Zealanders want some settlement and some finality to this issue. By reasserting the concept of shared space, we are giving the certainty and determination that we all thought was there in 2003—it would have been there in 2004 were it not for Mr Peters once again saving the nation. What a legacy that man has to look back on. New Zealand over the last 15 to 20 years has spent most of its time fixing up messes that he has been party to creating, and this is another one of those.

I say to New Zealanders that the traditional view we have always had about every one of us having that right of access is secured in this bill. The traditional view we have always had about the ease with which we can achieve those rights of access—that ability to go to the beach, in colloquial terms—is secured in this bill, because those provisions are not substantially different from what is in the current legislation. What has been removed is a concept that was inserted very late in 2004 and has subsequently been the cause of most of the division associated with this legislation. The foreshore and seabed belongs to all of us. This bill finally puts that in place.

When one reviews the scope of the last 7 or 8 years, we see in retrospect that it might have been easier simply to let the courts resolve this matter way back in 2003, but there was no great confidence at the time in their ability to do so in a way that was fair to the interests of all New Zealanders. There was no great confidence that that would achieve a fair and reasonable outcome.

💬 Metiria Turei: Ha, ha!

The member opposite laughs. She was probably still at school at that time. But the reality is that the interests of New Zealanders were protected by the Government seeking to act. The problem was that external intervention caused a situation where its legislation was derailed.

This bill today effectively picks up from where we all thought we were in 2004, puts in place a durable solution, and ensures that all of the views that the disparate interests have had are heard. Incidentally, I find it very interesting that the coalition of the opposition stretches from those who say that the foreshore and seabed should be exclusively the preserve of Māori right through to those who say that this is simply handing everything over to Māori. This is a coalition of extremes. Middle ground New Zealand opinion simply wants to be able to get on with life in the way it always thought it could. This bill and the concept of shared space achieve that goal. That is why I am supporting it.

Kia ora anō tātou. I te tuatahi e te Kaihautū o te Whare, tēnā koe i tēnei pō i a tātou e whakawhitiwhiti, e whiriwhiri nei i ngā toenga o tēnei pire me te mōhio, arā, noa atu te āritarita, te pōuri, ngā whakaaro e puhia ana e te hau i waenga tonu i a tātou, arā, mātou ngā mema Māori i runga i ō mātou marae. Ēngari, kua tae mai te pire ki te aroaro o tēnei Whare. Hei konei, ka whakaturengia, ka whakaritea hei ngaungau, hei takahi, hei aha rānei mā ngā uri whakatupu. Koia tāku e whēke nei kia tū ki te whakahē i tēnei pire. Nā reira, tēnā koutou, tēnā tātou, kia ora tātou katoa.

[Greetings to us once again. Greetings to you, Mr Deputy Speaker of the House in the first instance this evening, as we exchange views and debate the remaining parts of this bill, knowing full well that there are still so many other irascible, gloomy thoughts being cast about by the wind immediately amongst ourselves, the Māori members, and then on to our marae. Nevertheless, the bill has now arrived before this House, and will eventually be passed into law for future generations to chew over, criticise, or whatever—hence the reason I rise to oppose this bill. Greetings to you collectively, to us, and to everyone.]

An earlier version of this bill led to Tariana Turia turning her back on the people who provided her with the opportunity to establish a parliamentary career. When she took that fateful step, Labour provided Tariana Turia with an opportunity to speak in the debate related to the first version of the takutai moana legislative foray. She did not extend that courtesy, and she did not extend that constitutional nicety, to a member of her own party recently departed, and therein lies the untold story about this bill. It has led to the fracturing and the demise of what was in many respects a powerful concept—that Māori tribes and other backers could have their own party in Parliament. Speaking for myself, I say that it is not my preferred political trajectory, but I have to acknowledge that a number of our people are in the House and they came on the back of Tariana Turia’s removal of herself from Labour and her standing against our legislation.

It is bizarre that this legislation is akin to some sort of poroporoaki—farewell speech—for a significant number of members of the Māori Party. In an indiscriminate way, they have followed their rhetoric and fallen into the trap of surrendering to the Attorney-General, whose skill at manipulating legislative language has no peer. They have, unfortunately, signed their own death warrant by moving too close to National.

Hone Harawira made a number of very thoughtful remarks. He basically said that this is the kaupapa—this is the life force—that enabled the Māori Party to come into being and, as a consequence of its literally defecating on that life force, it is about to depart in the ballot boxes. That is what Hone Harawira has said. That is fantastic, given that Hone Harawira has said he will not be attacking the Māori Party and will not indulge in any personal unparliamentary treatment of the Māori Party. Unfortunately, those members’ vision, their goals, are now inversely related to the day-to-day interests of their voters, and that verdict will be delivered upon later in the year.

Let us come back to the bill. Quite a treacherous decision has been made under the dust, under the misery, of Ōtautahi—the calamity otherwise known as the visitation of Rūaumoko, the earthquake—by the Government. This decision was largely driven by the senior members of National. Cuckolded our Māori Party friends were. National is sneaking this legislation through against a wide chorus of disdain, disappointment, and anger.

I agree with the Attorney-General on one small point in relation to the bill, in relation to a number of the submissions and to the viral campaign—an organised campaign by Mr Peter Dunne, who is, fortunately, soon to disappear along with the low-tide mark, as this legislation gets further and further into trouble. Mr Dunne is a man associated with the Coastal Coalition group, and that group has disgraced its underlying purpose. It pretends that it protects the interests of all New Zealanders, but that group has no place in this debate, because they have been so extreme that they have actually ended up empowering Bill English. In addition to that, they have been so extreme that they have turned off many parliamentarians.

Our disagreement with this bill is not because of our desire to ally ourselves with Muriel Newman or similar miscreants, such as the ACT Party, wanting to spread discord against our Māori people. We do not agree with this bill because it does not settle the issue. We do not agree with the process; we do not like it because of the very surreptitious manner with which this bill, in a week of misery, is being rammed through Parliament. Secondly, we do not want to see legislation that causes these grievances to fester on and on. We were willing to work with a whole variety of political interests in the spectrum. Unfortunately, the opportunity to do so was dashed. There was very little opportunity.

We share a number of the concerns that have been talked about in the House, but this legislation is not the remedy to this particular problem. This constitutional process reflects an undermining of people’s ability to participate, and of people’s ability to have confidence that what small influence they can bring to the constitutional process will be dealt with in a legitimate and caring fashion.

Tau Henare and the Māori Affairs Committee actually delivered a very poor result in terms of how they engaged with the submitters. I know that Tau Henare has a new reputation as a bit of a headbanger. I think personal political reputations ought to be eclipsed by the integrity of the process and the legitimacy of the constitutional role that this House has. I hope Tau Henare bears that in mind in the future, although I fear his future may be pitifully short. However, that is another matter.

There is another resident near Te Atatū: the co-leader of the Māori Party. Dr Pita Sharples has to be acknowledged as the Renaissance man of Te Ao Māori. He has walked many of the huarahi, or pathways, leading to the flowering of Māori identity and how we see it. But this is a very, very retrograde and egregious error with which he is now to be permanently associated. His people, unfortunately, will remember it because the concerns they have are no longer about the high-tide mark, the mauri stone, and the pōhutukawa tree. They are actually to do with the day-to-day woes of the cost of living and the more mundane burdens that Māori families have to bear. It is very unfortunate that he has lost his way on this rather romantic flight, his believing that this legislation represents an improvement on the Helen Clark and Michael Cullen version. It does not.

Dr Cullen wisely made a contribution, and it corrected an error that Labour made. I have said this on numerous occasions: Labour ought not to have denied the inherent jurisdiction of the High Court. That was a very, very bleak day, although I could go on to blame other people not in the House, but, unlike Peter Dunne, I will not do that. Peter Dunne is a man capable of acting like an inhabitant of the takutai moana low tide - high tide mark. A crab can move sideways whilst giving the impression of going forwards. In a jellyfish one never, ever knows where the backbone is. That is why this bill will not settle the issue.

This bill will lead to a fatal fracturing of the Māori Party. This bill leads to a fresh opportunity for Hone Harawira; whether that is good for Māori only time will tell. Hopefully, they will exercise some judgment that has a very red tinge to it come 26 November, or whatever the day of the election is. This bill has cost a great deal of support for National. We do not think it is a solution, and we will not be voting for it.

Mr Deputy Speaker, nei te mihi aroha ki ngā mōrehu o te rū whenua ki Ōtautahi me ō rātou nawe, āwangawanga, mamae.

[I make a sorrow-filled acknowledgment of the survivors of the Christchurch earthquake, and their concerns, distress, and pain.]

I want to turn my eyes to the passing some weeks back of a lady I held in great regard, Professor Judith Binney. I wanted to take the first opportunity I had to mihi ki a ia me tōna mahi i roto i a Ngāi Tūhoe.

[acknowledge her and her work within the Tūhoe people]

I thank Tariana Turia for sticking to her guns, and for disagreeing with her party by going out on a limb for one particular kaupapa. I have a whole lot of notes here, and a whole lot of speeches to make that will not fit into the measly little 10 minutes we get for a speech.

When we ask ourselves whether this legislation should go through, should we not ask the party or the person who actually laid it on the line, who gave up her seat for that particular kaupapa—the repeal of the 2004 Foreshore and Seabed Act? Would we not ask ourselves on our travels where the 50,000 people are who congregated outside these halls back in the day against the 2004 Foreshore and Seabed Act? Where is the apology? Not one of the Labour members has got up and apologised on behalf of the Labour caucus for what it did to Māori.

Labour members have had the temerity to get up in the House and talk as if from some sort of sanctimonious, pixie-dust position, saying they want to engage in a political process. The fact is they are not the Government any more. The fact is we are the majority. That is how things work. Why are they so opposed to that when they are the minority? But they use those tactics when they are in the majority.

I start by reading something from the report by the special rapporteur to the United Nations. It states: “The new Marine and Coastal Area Bill that is currently being considered within Parliament represents a notable effort to reverse some of the principal areas of concern of the 2004 Foreshore and Seabed Act.” Where else should we start? There was a complaint about our nation that went to the United Nations. The special rapporteur came out here and wrote a report, and nowhere in the report does it say that there is anything wrong with this bill. What it sets out to do is exactly why the Māori Party came to fruition: it was for the repeal of that nasty legislation.

I turn first to my colleague, my whanaunga—taku tuakana—Hone Harawira, who says it is a racist bill. If he says it often enough he will start to believe it, he and his five or six friends. There is nothing racist about this bill. Do members know why? Because it actually returns a human right—a civil right—to a group of people. But that right was taken away from a people because of who they were—because of some fear that judges might say they agreed with those people. The 2004 legislation was based around a fear of what might or might not have happened, and Labour members were responsible for that.

I turn now to my mate, Mr Deputy Speaker’s mate, everybody’s mate: Winston Peters. He was a consummate leader at garnering racial tension, but I tell the House that he has nothing on John Boscawen and the members of ACT. They have not only lied but lied through their teeth over this issue. They have gone around the country and they have asserted that the Māori Affairs Committee is a racist committee, a committee that should not hear submissions on a piece of legislation about Māori—or Pākehā, actually, or Europeans, or anybody else. They assert that we committee members are not good enough to hear submissions. So I say to that member over there, who creates racial tension out in our communities, that it is time that extremists on both sides of the argument went away. It is time they took a slow boat to China, or to wherever else they wanted to go, because 90 percent of us in this country, black and white, want to get on with our lives, and want to get on with each other. That is what this issue is all about; that is what this foreshore and seabed, Marine and Coastal Area (Takutai Moana) Bill is all about.

Parekura Horomia said that this bill was nothing more than a disgrace. Well, people need to look in the mirror—or two mirrors, depending on who they are. Metiria Turei got up in this House and said that this bill was about the confiscation of Māori land. I do not know what sort of planet that lady is on, but I can tell members that it is not Earth. This legislation is about nothing more than returning a people’s right to take an issue to court and to ask the judge whether they own something. It is as simple as that—as simple as that. There are other things that this bill does. It guarantees access to the beach, access to the foreshore and seabed, access to the coastal and marine area—access to the takutai moana.

You know, John Boscawen gets up in this House and rabbits on about the Coastal Coalition. I have been inundated with emails from the so-called Coastal Coalition. It is nothing more than the membership list of ACT. That is all it is. We in National are not afraid of making progressive legislation with a very, very progressive party—the Māori Party. I have to tell my whanaunga Shane Jones, and his mate Hone Harawira, that the days of smart alec slogans on behalf of our people are gone. This Government is about moving forward together, not some smart-ass—

💬 Mr DEPUTY SPEAKER: Order!

—sorry, smart alec—[Interruption] Oh, goodness me! For goodness’ sake, the member comes from Rotorua. Smart alec slogans will not win Mr Jones, or Phil Goff, the Treasury benches in a few months’ time. What will win the Treasury benches is hard work, and having the nose to the grindstone as we go about repairing the damage of 9 years of that Labour Government.

I say thank you to Paul Quinn, who was the only member to read 500 pages in 4 days. It beggars what Mr Parker said—that he did not have enough time. Mr Parker said that he did not have enough time; well, Mr Quinn did, and we have had the benefits of his reading capabilities.