Marine and Coastal Area (Takutai Moana) Bill

I will make just a couple of preliminary comments about Part 1 of the Marine and Coastal Area (Takutai Moana) Bill. The part sets out—not surprisingly, given its title—certain preliminary provisions. They outline the purpose of the bill. There is a very important and carefully defined Treaty clause, and clauses that provide some definition of two terms: “accommodated activity” and “deemed accommodated activity”. They are activities that do not fall within the customary marine title permission rights.

There are a number of amendments on the substantive Supplementary Order Paper 207. Clauses 8 and 9 will be moved from Part 1, and it is proposed that they be located within Part 3 before the resource management and conservation permission rights to which they relate. The terms “accommodated activity” and “deemed accommodated activity” have been very carefully refined to ensure that they better reflect the policy intent, and to improve their workability. It is also proposed that the clauses that actually repeal the Foreshore and Seabed Act and restore customary interests—clauses 14 and 15—be moved to immediately after the purpose clause. That is what the Supplementary Order Paper proposes.

There are a couple of other clauses I would not mind just briefly referring to. Clause 6 is an important clause. In the course of a number of submissions that were made to the Māori Affairs Committee, as I understand it, and also in the course of a number of written submissions, hellfire and brimstone have been aired to the effect that if this legislation passes, New Zealand’s sovereignty will somehow be diminished. Of course, that is to address the very point that the Court of Appeal said was mistaken: to conflate the concepts of ownership and sovereignty. On 6 February 1840, when the Treaty of Waitangi was signed, the British Crown assumed sovereignty of Aotearoa New Zealand. But at that time existing indigenous property rights continued to exist. In other words, the assumption of sovereignty did not undermine those ownership rights. Time and time again, when I have been speaking on this bill over the last period—more particularly, in the last couple of weeks—people in the audience have got up and raised those matters with me. I have had to say to them that ownership and sovereignty are two different concepts. Clause 6 deals with that issue, and the Supplementary Order Paper redrafts it, not to alter anything substantively but to set it out more clearly.

Clause 7 is the interpretation clause. A couple of points are worth making here. The first point deals with the definition of the “common marine and coastal area”. Paragraph (a) refers to those parts that are held in fee simple. Specified freehold land located in the area will not be included in the common marine and coastal area. I thought the position was very well articulated by the Hon David Parker, in response to the Green Party member’s speech that nothing is to be gained by essentially indulging in a confiscation of land held in freehold title. It is important for the member of the Green Party Metiria Turei, who says she adopts a beautiful, pure approach to these matters, to understand that the effect of what she is seeking would be to remove and put into the customary marine title area general land owned by Pākehā, general land owned by Māori, and also customary land. I do not think that is particularly wise, and we will not go there. We will not confiscate Māori customary land from Māori, nor will we confiscate general land that they may own.

I will just say something about paragraph (c) of the definition of the “common marine and coastal area”, which deals with the bed of Te Whaanga Lagoon in the Chatham Islands, because there is some interesting background to that issue. The Waitangi Tribunal’s report of 2001 deals with the position of Ngāti Mutunga and Moriori claims in the Chatham Islands. The tribunal found that the lagoon should be vested in a body that was representative both of Ngāti Mutunga and of Moriori. In fact, Ngāti Mutunga had lodged a case in 1993, contesting the tribunal’s findings. They viewed the lagoon as their Māori customary land. The Māori Land Court adjourned the case for the tribunal’s hearing of the Ngāti Apa case. So rather than put the lagoon into the common marine and coastal area, we have specifically excluded it at this stage. If it is put into the common marine and coastal area, it cannot be used in a Treaty settlement. It is my fervent hope that, at a point in the not too distant future, we will be able to enter into negotiations both with Ngāti Mutunga and with Moriori, and achieve a settlement that will deal with this lagoon. The lagoon should never have been put into Crown ownership in 2004. It is important that it not be moved across to the common marine and coastal area now, so that it can be used in a Treaty settlement.

The other definitions are very technical, and I do not think that I need to take the time of the Committee in order to deal with them.

It is really unfortunate that the Minister for Treaty of Waitangi Negotiations is prepared to deliberately misinterpret the issues, particularly on the question of equitable treatment under the law for private title and customary title. The argument is—and it was upheld by the United Nations Committee on the Elimination of Racial Discrimination and by the ministerial review panel that looked at the issue—that there be equitable treatment of Māori forms of title and other forms of title.

It is not a question of whether there should be confiscation of private title. The question is if we are going to have a principle of public access—I do not know how David Parker managed to completely misunderstand this point—then there is no justification for saying the principle should apply only to some forms of title and not to others. If we want to protect things like public safety, for example, or the environmental values of particularly sensitive areas, or if there is some rational, logical reason why public access to particular land should not be provided, then one can set out criteria and ways of managing those decisions. But the title of the land should be irrelevant to whether the principle applies. The principle should apply in accordance with the needs of the public and issues pertaining to that particular land, which are things like environmental sensibility, rāhui, particular kinds of use, and public safety.

The issue for the Greens and for Māori—on this issue we have consistently spoken for Māori—is equitable treatment under the law, and the right for customary title and Māori forms of tikanga title to be treated equitably by legislation. That was not the case with the 2004 law. It is not the case with this Marine and Coastal Area (Takutai Moana) Bill, because the principles of, for example, public access apply differently to different forms of title. I wanted to clear that matter up. It does not matter how much other people try to misinterpret that issue; that is the clear, principled position on the issue of public access, for example.

I have an amendment to delete clause 9 in Part 1. It is related to clause 8 but that is OK. As I said in an earlier call, the issue is about accommodated activities, which are activities of Government agencies and Crown entities, public works, and various kinds of things like that that could occur, or are occurring, on customary marine title land. The bill has all these definitions of people who can have these kinds of activities and the kinds of activities they can be, and if they impact on customary marine title land, the Minister effectively has the right to use, take, or acquire that land, or to damage it, if the Minister chooses, and then to enter into negotiation with the holders of that customary marine title about what compensation might be available. I want to go through the legislation, because it is a technical point but it is important. Again, it is one of the discriminatory aspects of the bill that show that Māori title is being treated differently from other kinds of title, and one of the reasons why the bill is considered to be discriminatory in ethnic terms.

Clause 8 sets out the kinds of things that can be considered to be part of an accommodated activity. They include renewing an existing resource consent, upgrading existing structures, the replacement or relocation of existing structures or infrastructure, and dredging, which is a major issue for Māori in coastal areas. Dredging is one of those activities. That could mean things like using a coastal marine area as a dump for the discharge of sewage. If a council wanted to use a particular area of land as a discharge point for sewage, for example, in emergency situations, then under this legislation there is a capacity for the council to make an application to use someone’s customary marine area as a dump for sewage.

Clause 8 also describes who might be able to make such an application for a deemed activity, an emergency activity, an accommodated activity, and the list is the Crown, any Crown entity, a network utility operator within the meaning of the Resource Management Act, an electricity generator, a port company, Maritime New Zealand, and the Auckland Regional Transport Authority. So the possible organisations that could seek to use the customary marine land of an iwi or hapū for this purpose are very broad and the powers are very significant.

Clause 9 talks about a “deemed accommodated activity”, which appears to be an extension. One of the activities listed in clause 9 is prospecting, exploration, mining operations, or other forms of mining under the Crown Minerals Act. Of course, mining in general is sensitive, but marine mining is a particularly sensitive issue for Māori at the moment. There have been numerous claims to the Waitangi Tribunal dealing with the right of Māori to have some say over what happens in their coastal areas, their rohe, around mining applications. They have been upheld by the Waitangi Tribunal but denied consistently by the Crown. This bill again gives to others, to Crown entities or their agents, the right to make application to use Māori customary marine areas for the purposes of mining and mineral mining.

Schedule 1 talks about what happens to an application to undertake that activity in a customary marine area. Clause 8 of Part 1 of schedule 1 states that the Minister must consider the application and any information provided by the customary marine title holders, and must decide whether to waive the customary marine title holder’s permission right, whether there are any other affected rights, and whether to provide compensation—whether to provide compensation. So the Minister makes the ultimate decision. If a company wants to go on to Māori-held customary marine area land and undertake mining activities on that land contrary to the wishes of the holder of the title to that area, then the Minister can provide for it and agree to it. Additionally, the Minister can decide whether to provide compensation for loss of the use of, or damage to, that land. So the holders of a customary marine title are completely beholden to the intentions and desires of the Minister as to whether their land is able to be used by them freely, whether some other group can use that land for something that it considers to be more important than the wishes of the iwi or hapū who hold that land, and whether they are considered important enough to be given any kind of financial compensation for its loss.

The Green Party again says that if we are to treat land equitably, regardless of the title of the land, then we must have the same laws apply. For freehold land, that law is the Public Works Act, which has a system for the provision of compensation. Compensation is not negotiable under the Public Works Act, but it is negotiable when it comes to Māori tikanga title. It is negotiable, because, according to the Government—the Māori Party and National—if Māori hold title in an area of land, it is not as important as anybody else’s title. That title can be taken from them for somebody else’s economic use or deliberate destruction for their own purposes, and the Government can decide that it is not worth anything and not give Māori compensation. That is what these provisions in this bill do. That is how this bill is discriminatory against Māori and against Māori forms of title. It is grossly inappropriate that the process for the use of land that is, in effect, supposed to be treated like private land is so different from the process for other kinds of land. It is not appropriate to have such discriminatory, racist provisions in this legislation.

The Green Party is opposed to them and we have put forward our amendment to take them out. I understand that Labour has a similar amendment to remove those clauses. We will be supporting that amendment if it comes up first, and we certainly hope Labour will support ours if it comes up first. There is no justification for treating these two different kinds of title differently.

I will just respond to Metiria Turei’s comments that I lacked an understanding as to why the Marine and Coastal Area (Takutai Moana) Bill is discriminatory in respect of protecting existing freehold title. The point I was making is that those areas that are in freehold title would not qualify as areas where there are unextinguished customary rights, and therefore the issue does not arise.

I do agree with the second point that Metiria Turei made. That is that if there are extant customary title interests in the foreshore and seabed, and they are subsequently overridden in favour of some public project or some private project like mining, then there ought to be fair compensation for the loss of the right that has been found to exist. That is one of the issues that we raised at the Māori Affairs Committee and on which the select committee, because it ran such a poor process, did not even report to the House. That issue was of concern to the Green Party, Labour, the Māori Party, and others, including ACT, when they saw that effectively we could be saying there is an existing customary interest in the foreshore and seabed area that is properly recognised under this legislation, and that it could be taken away at some future time, and that the compensation, if anything, for taking away that right would be at the grace and favour of a future Government, rather than a right at law as exists under the Public Works Act where a public work takes away some other property rights. That is an example of where I do agree with the Green Party that it is bad law. We have an amendment on the floor of the House to remove those provisions so that it is not of that effect.

I raise another issue that relates to these Part 1 definitions. Part 1 sets out the outline of the Act and states, amongst other things, that we are to codify what is or is not an extant customary interest that should be recognised in a customary marine title. One of the problems that we get ourselves into here is that we have taken it upon ourselves in Parliament to try to codify things that the courts have never had the chance to properly interpret and say what it is that the common law provides for, what is the range of rights that may be existing and the range of rights that may have used to exist—for example, the right to mine for oil and gas, which was clearly abrogated by the nationalisation of that resource back in 1948, I think, although the Attorney-General might be able to correct me as to the date—

💬 Hon Shane Jones: 1937.

I thank Mr Jones. It was nationalised in the Petroleum Act in 1937, so there is no longer an extant customary interest that would be able to be part of a customary title.

The Government’s attempt to codify these provisions in Part 1 fails for a number of reasons. One is that National in Government, and the Māori Party, said that they were setting out to settle this issue, yet we have the Māori Party through its co-leaders, the Hon Tariana Turia and the Hon Pita Sharples, and its whip, Te Ururoa Flavell, all saying that it is not accepted by them as settling the issue; it is just a first step along the way towards achieving a wider ambition. That shows that the primary ambition of the Government to settle this issue through the codification of the appropriate threshold test for the establishment of a customary title is not achieved, and that is putting aside—and I do not mean to put aside as irrelevant—Hone Harawira’s concerns. His concerns are also relevant in so far as they show that this legislation does not settle the underlying dispute.

What are some of the problems as far as ACT is concerned? ACT, quite rightly, makes the point of asking why it is necessarily correct that having a right of fishing or a right of navigation does not mean that one cannot get a customary title. Someone might want to put that argument in court and that person might be right, because these issues have not been determined either in a New Zealand jurisdiction or in many overseas jurisdictions. ACT is right in saying that that argument might be relevant and that it ought to be listened to by the court. Conversely, the arguments that some Māori submitters made that the requirement to prove exclusive use and control is too high a threshold test might be right too, but they do not have the opportunity to claim that in court now. They are being stripped of the right to go to court and make those arguments, because the codification of those issues puts them beyond the jurisdiction of the court. The court has to apply the codified tests, rather than determine what the proper tests are for the establishment of a customary marine title.

That, I think, is at the nub of where Labour got to on this. We freely acknowledge that the existing Foreshore and Seabed Act is wrong in that it does not allow people to get a court remedy, but we also went further and said that Parliament has now had two cracks at codifying this and has not done it in a way that settles the issue for New Zealand, because there is no compromise available that the parties from the different sides of the debate can accept. Therefore, the whole thing should be referred back to the courts, preserving public rights of fishing and access and the inalienability of customary interests, and that is really all the legislation needs to do. That is why we have put forward amendments that amend the various provisions in this part to that effect.

I also say in respect of the change to the threshold test that with the absence of legal advice as to the effect of the change of the test, I remain ignorant as to what is the true effect. I will give an example of where this was being spun by the Government to different interest groups to different effect at the select committee. Te Ururoa Flavell was quite rightly concerned that land confiscations that were improper during the period post-colonisation should not mean that a claimant is disentitled from claiming a customary interest in adjacent foreshore and seabed, in his view. He thought that if a claimant went to court and argued that, then he or she might be able to convince the court that those customary interests are extant.

The definition in this bill is changed from the original Act in that the requirement for continuous ownership of contiguous land has been removed. That is no longer a prerequisite to the establishment of a customary interest in adjacent foreshore and seabed. That was interpreted by National members, who were trying to placate the Māori Party, as saying that the very fact that claimants have had their land confiscated does not disentitle them from establishing a customary title, but what those members did not say, and what they never explored, was what the effect was of the provision that one has to prove—I think the words are, and the Minister in the chair, the Attorney-General, can correct me if I am wrong—continuous and exclusive occupation and control of the area of foreshore and seabed itself.

The question then arises that if one does not control the adjacent land and, therefore, people have been free to wander down to the foreshore and seabed, then how can a claimant show that they have exclusive control of the adjacent area of foreshore and seabed? None of these issues have been explored properly at the select committee, because we did not have legal advice, and because the National Government was determined to pull the wool over the eyes of the Māori Party—

💬 Paul Quinn: We explored it, David.

No, those members did not explore that. They asked the question but then they blocked us from getting any legal advice so as to get the answer. That is not exploring it; that is very, very poor process. So the poor old Māori Party is left ignorant of the fact that although it is true that the fact that adjacent land was confiscated is not an absolute bar to proving a foreshore and seabed interest in the adjacent foreshore and seabed, it may well be a de facto bar, given that one will not be able to show exclusive control of the adjacent area of foreshore. I know that, because the Attorney-General has as much as confirmed that to me in discussions that I have had with him. But I have not been able to explore it in a way that gives me the benefit of either Crown legal advice or legal advice to the select committee, because we were blocked from obtaining it.

So we can see why at the end of this process there will be a sense of grievance on the part of Māoridom, who will feel that they have been done over. I do not necessarily agree that their view that the common law test is a lot more generous than that is right, but I can see why they will feel that they have had the effect of this legislation misrepresented to them, and therefore they will have an ongoing sense of grievance and this issue will not be settled. That is why this bill fails the test that the Prime Minister laid out for it right at the start. He said the Government would not proceed with the bill if it did not settle the issue and it did not have broad support. That is but one instance as to why that is not the case.

The consideration in the departmental report of this Part 1 of the bill is some 50 pages long.

I am almost at a loss to know where to begin in making a contribution on Part 1 of the terribly flawed Marine and Coastal Area (Takutai Moana) Bill. Not only is the legislation flawed but the process around it is flawed.

I begin with a bit of rebuttal to the earlier ACT speaker Hilary Calvert, even though she was speaking on the preamble. It astonishes me how far the ACT Party can go in offending just about everybody. Its members used to refer to tikanga as mumbo-jumbo. In debate on previous legislation when we have been passing laws about Treaty settlements they have referred to tikanga as mumbo-jumbo. But today we have heard it called Alice-in-Wonderland stuff in relation to this legislation. I am just astonished at how far the ACT Party is prepared to go to offend as many people as possible.

In this legislation—and I come to Part 1, which is the part under discussion at the moment—there is such a divergence of opinion, united only in its opposition to this legislation. It must almost be unprecedented in this Committee. More people disagree with this legislation, from a variety of positions around the country, than agree with it. Sometimes National has wanted to characterise the opposition to this bill as being all ACT members. I dare say ACT wishes it had as many members as that. I have in my in-box, filed under the title “Foreshore and Seabed”, 250-odd emails that oppose this legislation for a variety of reasons.

We come to clause 4 in Part 1 of this bill, which states: “The purpose of this Act is to—(a) establish a durable scheme to ensure the protection of the legitimate interests of all New Zealanders in the marine and coastal area of New Zealand;”. This legislation palpably fails to do that. We have been given assurances that there will be a revisiting of this legislation. I am sorry that the Minister in charge of the bill, the Attorney-General, has been compelled—by others, I suppose—to bring this legislation to the Chamber in this way at this time, when the country’s interests are rightly diverted to Christchurch. He is being compelled to bring this legislation to the Chamber and to persist with it when it will clearly not satisfy a whole range of people and a whole range of interests.

I draw attention to why this scheme will not be durable. I say to the Minister in the chair, the Attorney-General, that I wish this were going to be a durable scheme. Nobody wants a durable scheme more than we do. We got the last legislation wrong in respect of stripping the right to go to court to have claims tested. We got that wrong and we have said so, and we have apologised. That remains on the record. We have also said that we want a durable scheme. We want to establish a durable outcome to ensure the protection of the legitimate interests of all New Zealanders.

💬 Hon Dr Wayne Mapp: A durable scheme on your terms, however.

Not on our terms, I say to Mr Mapp, but on mutually agreed terms. This Government will ram this bill through by a margin of 62 to 59. Those were the numbers in the last vote, a few minutes ago. It does not augur well for clause 4 of Part 1. It does not augur well. It is being passed by a margin of three votes. For something as important as this bill—which should be durable, testable, able to withstand criticism, and able to be justified to everybody across the country—three votes is not a sufficient margin by which this legislation should pass. It is too important.

💬 Hon Tau Henare: We’re not listening and we don’t care.

Oh, Mr Henare has just said the magic words “We don’t care.” Mr Henare has just said the magic words. The National Party does not care about the interests of all New Zealanders.

Pita Sharples has said that the Māori Party is not entirely happy with the bill, and neither are iwi leaders or the general public. I will pick up one part of that, which also goes to the question of how durable this legislation or this scheme will be. Not one iwi—not one iwi—around the country supports this legislation. Mark Solomon and the iwi leaders have said that they oppose this legislation. He has said that to me personally. I have heard him say it. Not one iwi around the country supports this legislation.

Let us go to the comments of Te Ururoa Flavell from the Māori Party. He has said that we will be going back. “We will … be looking at it again,” he said publicly, and he said there would be “another time for our people to come back and have another go in the future.”

I say to the Minister that I wish this were a durable scheme. I wish this legislation acted in the interests of all people. But the opposition to this bill comes from right across the political spectrum, from the offensive comments of ACT right through to iwi leaders. It comes from right across the political spectrum. That opposition makes this legislation faulty, fragile, and able to be undermined in a moment. That is what will happen to this bill.

We have an opportunity to get this right. This bill does not need to be rushed. It certainly does not need to be rushed under cover of the Christchurch earthquake. It does not need to be taken at this pace. The select committee process did not need to be aborted in the way that it was. The select committee members did not need to have legal advice denied them. The fact that the Government has Simon Bridges on its side of the select committee does not constitute independent legal advice. It does not constitute independent legal advice.

If one were to look at the departmental report, one could see quite clearly, from page 59, that a number of submitters—

💬 Hon Tau Henare: This member wasn’t even at the select committee.

But I have looked at the report—which some of the members of the select committee might have done well to do—and I can see that a number of submitters were concerned that the bill as it had finally emerged was not the same as the Government’s proposals set out in its consultation document. More time needed to be taken on this, for the integrity of the legislation and for the integrity of the process.

The process is a travesty. The fact that Mr Henare does not care is a travesty. This legislation, which could have had the complete support of this entire Parliament, has been an opportunity lost. I am sorry that it is an opportunity lost, I tell the Minister; it could have been better than this. I am sorry that the Minister has been rolled in this process. It did not need to happen like this, and the select committee process did not need to be impaired and aborted in the way that it has been. What we have here will not deliver the purpose of this Act.

Thank you, Mr Chair, for the opportunity to speak on this part. My colleagues the Hon Heather Roy and Hilary Calvert also wish to make a contribution. In a short time I will address certain definitions in the Marine and Coastal Area (Takutai Moana) Bill. In particular, I will refer to the definition of “marine and coastal area”, which is set out in clause 7, the definition of “planning document”, which appears later in that clause, the definition of “RMA permission right” and its implications, also set out in clause 7, and the definition and significance of the meaning of “accommodated activity”, which is at the beginning of that clause. But before addressing those very specific provisions of this part I need to make two general comments to put some of these issues in context.

The first thing I will do is acknowledge the contribution earlier in this debate of Rahui Katene. She got up in this Chamber and said she was proud to be a daughter of Ngāti Apa, and went on to list a number of other iwi. And she should be proud—she should be absolutely proud. One has to look no further than the article that appeared in the New Zealand Herald last Wednesday penned by the Hon Pita Sharples and the Hon Tariana Turia, in which they set out the details of this bill and its implications. One has only to read that article to realise how proud Rahui Katene should be and how proud the Māori Party should be. The passing of this bill will be the culmination of many years of activity. And the bill will pass; the Government has told us that it is committed to pushing it through. As Maryan Street has told us, it will pass by the very, very narrow margin of 62 votes to 59. This legislation is a major issue. I do not believe that its full implications are understood by the wider New Zealand population. In fact, I am not even sure they are understood by the media. I urge all New Zealanders, or, certainly, everyone listening to this debate, to go to the online edition of the New Zealand Herald and read the article by Tariana Turia and Pita Sharples that was published last Wednesday.

I will quote two sentences from it. They started by saying that “The new bill acknowledges that ALL coastal iwi have connections to the coast. Their mana tuku iho (inherent authority) entitles them to protect their wahi tapu and to be consulted on conservation and resource-management issues.” The interesting thing about that is it protects the rights of all coastal iwi. Does it protect the rights of all other New Zealanders who are not coastal iwi? Does it protect the rights of all other New Zealanders who have property on the coast? I have travelled up and down the country over the last 6 months, trying to create awareness of this issue, and when I spoke to the Taupō rotary club back in October, I met a gentleman who told me that he can trace his ancestry back to the early 1800s, certainly back to prior to 1840, when the Treaty of Waitangi was signed. His family owns freehold land, and it can trace its ownership back to prior to the Treaty of Waitangi. The family still owns that land today. It has owned it for over 150 years. Under this bill, his interests are not protected. His interests are not protected and his interests are not recognised. The National MPs sit there and shake their heads. All I can say to those National members is that they do not understand the provisions of this bill. Sadly, the implications of not understanding those provisions, and of not reading the many hundreds if not thousands of emails that have come in, will dawn on them far too late.

The second point I will raise before I get down to looking specifically at the implications of the definition of “common marine and coastal area”, the implications of “planning document”, and the implications of “RMA permission right” is about a reference made earlier this afternoon to the Coastal Coalition. Coalition members have been demonised in this debate. They have been accused by Mr Finlayson of spreading misinformation. Mr Finlayson has responded to the Coastal Coalition with a page set out on the Beehive website. All New Zealanders can go to the Beehive website. I imagine that Mr Finlayson is ashamed of what appears on that website. Under the heading “Setting the Record Straight” I read and New Zealanders will read: “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.”

I encourage Amy Adams, if she looks at nothing else, to look at this single page. The Attorney-General recognises four specific issues. I could make some points on all four of them, but in the interests of time I will make a point on just one, which relates to Part 1 and the definition of “common marine and coastal area”. The article states that opponents claim that “The bar has been lowered on the qualifying criteria so anyone can apply”—“The bar has been lowered on the qualifying criteria so anyone can apply”. The Attorney-General says that “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.” So “The most rigorous test is proving uninterrupted and exclusive use and occupation …” since 1840. “Many areas of New Zealand are not eligible because of this requirement.”

Well, most New Zealanders and, I suspect most National members who will be voting for this bill, would think that was a very tough test. It is a tough test, but it is not actually the test. People do not have to prove that they have had continuous and exclusive occupation, and the reason I say that is that under the very provisions of this bill it is acceptable for people who are not part of the claimant group to have fished in an area, to have boated in an area, and to have navigated through an area, yet the claimant group can say that it has continuously and exclusively occupied that area. That is an absolute fiction; it is a charade to say that we are making the test continuous and exclusive occupation when in actual fact we are not. The tragedy is that members of the public will wake up to that fact. National is punting that they will not wake up to it until after the election on 26 November, but that they will wake up I have no doubt.

Let me turn now to the definition of “marine and coastal area”. As I said earlier, the ACT Party has a number of amendments on this part that we want to speak to. We are proposing amendments, for example, to the definitions in clause 7 of “local authority”, “mana tuku iho”, “mineral”, and “planning document”. Let us look at the definition of “marine and coastal area”. What is the definition of “marine and coastal area” set out in clause 7? The definition states “marine and costal area—(a) means the area that is bounded,—(i) on the landward side, by the line of mean high-water springs; and (ii) on the seaward side, by the outer limits of the territorial sea;”. So the marine and coastal area goes from the high-tide mark to the outer limits of the territorial sea—it goes out 12 miles.

The reason that is important is that the bill provides for a massive transfer of wealth from all New Zealanders to certain select iwi. Under the provisions of this bill it is assumed, in the absence of information to the contrary, that customary title is held in all seabed and foreshore, in all areas of the marine and coastal area. The bill actually states that customary title lies with an iwi claimant, and that it is up to the Government to prove that that is not that case—clause 105 is the significant clause. The reason I raise this issue is it has extreme significance. It has extreme significance for the definition of “marine and coastal area” and, as a consequence, for the definition of “common marine and coastal area”, because under clause 105 it is up to the Crown to prove that customary title does not exist, as opposed to the iwi proving that they have customary title.

Another key definition is the definition of the Resource Management Act permission right.

The Marine and Coastal Area (Takutai Moana) Bill is an indictment on the Māori Party. In fact, not only is it an indictment on the Māori Party but also, I suspect, it will be its epitaph. The Māori Party has focused its efforts exclusively on repealing the Foreshore and Seabed Act 2004, and clause 4(2)(a) provides for the repeal of the Foreshore and Seabed Act. That is the one thing on the Māori Party’s list that its members can tick off. It is the one thing on the Māori Party’s list that they can say they have achieved in the 5 years they have been in Parliament.

The reality is that under the Māori Party and National, outcomes for Māori have gone backwards, not forwards. Members of the Māori Party have focused exclusively on the repeal of the Foreshore and Seabed Act to the detriment of issues that really matter to Māori. They do not have a plan for the Māori economy to move forward. We did not need a Native Affairs survey last night to tell us that only 34 percent of Māori actually consider the Foreshore and Seabed Act to be an issue of any significance. The real issues that Māori are interested in are unemployment, the cost of living, the sale of assets, and the rise in GST—things that the Māori Party voted for.

The CHAIRPERSON (Lindsay Tisch): Part 1.

I am saying, Mr Chair, that Māori Party members have focused solely on clause 4(2)(a), which repeals the Foreshore and Seabed Act, to the detriment of all the other issues that really mean something to Māori, such as unemployment and the rise in the cost of living.

On clause 4, “Purpose”, Māori Party members also say that they want to establish a durable scheme. This measure will not be durable. They have said already that this bill is just the start, and that every 3 years, come election time, they will focus again on this issue—a bit at a time. This measure is not durable. It is about entrenching Māori in grievance. It is about making sure that Māori always have something to be upset about, and always have something to complain about, so that people will vote for the Māori Party because it is the party of grievance. Māori are better than that. We need to rise above the grievance mentality. We need to rise above it, step above grievance, and actually move on and make real changes in our lives. We need to address unemployment, we need to address the Māori economy, and we need to ease the cost of living for our people.

I heard Hilary Calvert talk about tikanga. She obviously has a problem with the word “tikanga”. The trouble is that Māori do not have a problem with the word “tikanga”. We understand what it means. I get annoyed, and I got annoyed during the Māori Affairs Committee hearings, when people say that tikanga can end up meaning anything. Well, it does not mean anything if one understands the Māori language. If people understand Māori customs and Māori culture, then there is not an issue with the word “tikanga”. It is an issue only for those people who want to exclude themselves from the indigenous culture of New Zealand—they are the ones who have a problem with it. The word “tikanga” is pretty plain and clear to Māori. If the Coastal Coalition, ACT Party members, and anyone else has an issue with the word “tikanga”, I suggest to them that they enrol at their local night classes, if there are any in their community left standing, and learn a little bit about Māori culture, Māori language, and Māori tikanga.

Clause 7 defines the marine and coastal area. The marine and coastal area is “the area that is bounded,—(i) on the landward side, by the line of mean high-water springs;”. What we are talking about is the wet sand—the wet sand. That is what the Māori Party cares most about—wet sand. It does not care about issues that are really facing Māoridom, but it cares about wet sand. We in the Labour Party care more about issues that are really affecting Māori people, and, as I have said, those issues are unemployment, the underachievement of Māori kids, health, and the longevity of Māori lives. As I said, the marine and coastal area is defined in this bill, and it is wet sand that we are talking about.

There were a number of submitters who had not actually read the bill. They came in and they raved about the marine and coastal area. I remember one submitter in Whangarei who told us that this bill was the reason that coastal developments in Northland had basically finished and that there was no more building happening on the coast of Northland. I asked him whether he had read the bill, and he said no. So I said: “Where in the ocean are you going to build your house?” He asked me what I meant and I told him that if he had read the bill he would know that the bill is about the wet sand—everything below the high tide mark.

As I said earlier in the debate on the preamble, there are two extreme polar opposites. A number of people from the Coastal Coalition and that ilk were put up to turn up and criticise this bill without actually having read it. I found that even though I opposed the bill I ended up having to defend the Minister in charge of the bill, Chris Finlayson, from some of the rabid, ill-informed misinformation that was being put out by the members of the Coastal Coalition, such as the fact that coastal developments in Northland had ceased because of this bill. That submitter had obviously misunderstood the issue. He did not understand that the lack of development was due to the lack of an economic plan from the National Government and was not due to this bill.

Planning documents also caused a bit of anxiety for a number of people. They were worried about iwi and hapū planning documents that were going to “change the world as they knew it.” I have a planning document here. It is from Ngāti Hine. It is all about working together cooperatively with regional councils and district councils and it is about working together for the good of everyone. I will read one part of the document. It states: “Te Rūnunga o Ngāti Hine will promote and enhance partnerships between Ngāti Hine, central government and its agencies, and regional and district councils.” This is not about being exclusive or about separate Māori development or apartheid. This is about integrating, cooperating, and establishing relationships. All Ngāti Hine ask is that “the relationships of Ngāti Hine need to be cognisant of our status as tangata whenua, kaitiaki, and Treaty partner.” I ask all those people who are so anti-Māori, anti - planning documents, and anti - everything else where the harm is in what Ngāti Hine is asking. They want to work together with central government, local government, and regional government, and I believe that that is an honourable and great thing for them to seek.

I turn to the definition of “road”. There is the issue of Ninety Mile Beach. Ninety Mile Beach is deemed a road, from what I understand. People cannot drive on Ninety Mile Beach at high tide unless they want to drive at about a 45-degree angle for 60 miles of sand dunes. But when the tide is out all and sundry use that road: tour buses, people going fishing, and people walking their dogs—everybody uses Ninety Mile Beach. I believe that it is deemed a road. So I wonder about the status of Ninety Mile Beach. It was not cleared up in my mind at the select committee whether Ninety Mile Beach is being used as a road, but it is actually part of the coastal common marine area, so I have that issue still wandering around.

In terms of “warden” there is a lot of concern by members of the Coastal Coalition and their ilk that wardens are going to be standing guard over areas of the coast. The bill does not say “Māori wardens”. Māori wardens are normally elderly people in their 70s who stand at the gates of marae and direct people in cars to car-parking areas. I do not think that the word “warden” in this bill means a warden as set out in the Maori Community Development Act. However it is a big stretch for the Coastal Coalition and others to try to make a case that in the dunes of every beach there will be—

I move, That the question be now put.

Kia ora anō tātou.

💬 Hon Tau Henare: Tēnā koe.

Āe. I want to take on board the admonition offered by the Minister in the chair, the Hon Christopher Finlayson, that we focus on Part 1 of the Marine and Coastal Area (Takutai Moana) Bill. I want to direct our attention to pages 10 and 11. I see some complications and I would be interested to get a response from the Minister. I imagine that work is taking place in relation to how High Court judges and indeed lawyers representing the parties in the inevitable litigation will deal with the notion of mana tuku iho and tangata whenua. I am presuming that the High Court is exploring whether it will need additional expertise or whether some of the—dare I use the term—tikanga of the court need to be amended, although I would note that Christian Whata, certainly one of the most able young Māori lawyers of his generation, is about to join that august company.

💬 Hon Christopher Finlayson: He has done.

Unfortunately Mr Ririnui, a man of Waiariki origins, did not extend a pō’hiri when he went to the hākari, the feast, for Christian Whata, to me and Kelvin Davis from Ngāpuhi, so that we could continue our peace-loving ways in that part of Aotearoa. However, it is good that Māori High Court judges will be there but I hope that the Minister will take a call on that because although we are full of passion and are making various political points, after this bill eventually finds its way permanently into the landscape of statutory law, someone will actually have to pick it up in 2014, 2015, 2016, and 2017 and make decisions on behalf of groups as to whether they are hapū or iwi.

I direct the Minister’s attention to purpose clause 4(1)(b), which goes to the heart of what this bill is about. The purpose is, according to that paragraph, to recognise an ill-defined mana tuku iho concept exercised by iwi and hapū as tangata whenua. I can assure the Minister, having spent many years along with three other Māori MPs in this Chamber dealing with these issues in a different part of the coastal environment called the fishing industry, that this will be hotly litigated. This will be hotly debated. I imagine that a judge will, at the end of the day, draw on what has been defined as an iwi in the fisheries settlement. If that proves to be the case—and the Minister in the chair is nodding in the right direction—then I think that that is a sensible way to go. But we should not for a moment imagine that that will bring litigation to an end—unfortunately. It is a further example in the bill, and it might be said of any bill, when we endeavour to bring our Māori terminology into the law.

To that score, I do not think it is a bad idea, unlike our friends from the ACT Party. I will not let it pass that they can stand unchallenged and imagine that they will be rewarded for trying to deprecate Māori culture by analogising it to Alice in Wonderland. I want members to know that one of the figures in Alice in Wonderland was a dodo, and that party will go the way of the dodo if it continues to deprecate those members of Māori descent in this Chamber and the passion with which we seek to maintain culture and pass it on to the next generation. So I encourage members of that party and their supporters to think that perhaps the dodos are Muriel Newman and that gaggle of personalities who through viral means are trying to leave us with the impression that the country is overrun by angry rednecks hating Māori language coming into legislation. I cannot help it if they are actually Don Brash’s voters. They were on that side of the Chamber and now they are disappearing elsewhere, but more about the Mad Hatters at a later stage.

I come to clause 6. I have signalled that the High Court, if measures have not been taken, ought to ensure that its tikanga and rules are evolved to deal with these challenging issues, but, more important, that we have the right level of expertise there, because I am a great believer in the inherent jurisdiction of the High Court—and I see it. I have said earlier that it was a bleak day when we left that very vague and ambiguous in our time. I am on record as saying that, so it would be good to know that that is the case. I want to move right along to clause 6. I imagine that the Minister is putting before the Committee a distillation of what will be the responsibilities in international law of the Crown, given that we are going forward with an idea that the actual seabed and foreshore, takutai moana, coastal space, and so on, will not be vested in the Crown as such but will be an open space, a public space—takiwā marea is, off the top of my head, my translation for open and public space.

But I would caution us against providing any opportunity in this bill that allows, quite frankly, for a debate and a legal tussle as to what is the scope of the Crown’s sovereignty, because the logical conclusion is that once we strip away the Crown as being the putative or exclusive owner on behalf of society and we introduce this other notion, it will be challenged in the courts as to what is public space and so on, how far private property rights stretch, even if they are customary associations, customary interests, or perhaps enforceable rights, and how far the notion of a dimension of an unfettered public space actually goes. So I ask for a bit of clarification around those issues, because there is the notion that this bill will turn from a debate about historic associations and residual interests into a debate on whether any subsisting sovereignty elements are in the actual seabed and foreshore legislation other than the ability of a democratically elected Government to regulate. Unfortunately I was not on the Māori Affairs Committee save for one or two meetings and I am not actually apprised of how that was explored by submitters, but it is an important point.

Unlike the lucidity that is evident in my speech, questions on the day from Paul Quinn, who is hollering and who could also be a part of the Alice in Wonderland fairytale, generally bamboozled the submitters. Even when I was there, people wanted to answer his questions, but such was the ambiguity of his questions that he was consistently told by the chair to turituri, to keep quiet. I do not know how well they get along with each other.

I want to now come to the notion of the marine and coastal area. According to the ACT spokesman, there is an assumption that because we have defined the area in question as being out there on the horizon, te pae, and on the mean high-water spring, that somehow this represents an opportunity for muck and gouging. Ambiguity should be addressed. If there is ambiguity, it is reasonable that the Minister should, during the course of our deliberations, say that it is just a simple physical description and that it does not represent an assignment of potential wealth or residual interests that will one day grow from being perhaps a rock or a defined discrete area that a hapū still has, and that then somehow grows further into including all the ironsands off the west coast of Te Ika-a-Māui. Unfortunately, that would be of no good to my iwi because we are on the east coast in the far north, and as a consequence of iwi activists, not the least of whom is Margaret Mutu, our settlement gets further and further away. But that is another matter. I do not mean to be personal in any denigratory way or in any manner of form. I just want it known that I am not motivated when I mention ironsands. But I do think it is a reasonable point. I have my senior colleague here. He and I both have some concerns about these ambiguities because there is a host of changes. If what is at stake is a significant natural resource and is valuable to the overarching interests of the country, then it is good for the Minister to say that, no, it will not actually be lost.

It gives me great pleasure to rise and speak to Part 1 of the Marine and Coastal Area (Takutai Moana) Bill. I would like to concentrate on two clauses in this part of the bill. The first is the outline of the Act, which is clause 3 in particular. I think this is also relevant to clause 7, which covers the definition of common marine and coastal area.

Under this bill, the assumption is that iwi and hapū have customary rights over all the common marine and coastal area, unless the Crown can prove otherwise. Of course, this is the new terminology for what we previously knew in the foreshore and seabed legislation, which was debated under the previous Labour Government. Iwi and hapū have customary rights over all common marine and coastal area, unless the Crown can prove otherwise. One of the things that ACT, through all iterations of this debate since the 2004 legislation, has talked about is that everybody who feels they have a genuine ownership bid should be able to have their day in court, so that is relevant to that point. Also, the bill contends that iwi have guardianship ahead of all others. To my mind, the crux of the matter relates to property rights. There were a number of submissions to the Māori Affairs Committee that talked about property rights. That is always the yardstick that I use when we think about how we proceed, how law is put in place, how we deal with things, particularly before the courts, and when the courts should be the decider, if you like, of who has genuine ownership.

I will probably run out of time in this call to talk about property rights, but there are a number of issues that should be considered when we look at the detail of this bill. I think the bill is being justified to Pākehā and the public, generally speaking, largely on the basis of what will happen to the coastline in the future. Of course there are large areas of coastline that should be protected from development and exploitation. I do not think there would be any dissension in the Chamber from that view at all. Reserve status is justified for it, for example, but we should not forget that we have one of the largest coastlines in the world and, alongside that, one of the lowest population densities and a declining economic capacity to maintain First World health, education, and infrastructure systems. Stephen Franks submitted to the select committee that he deplores the absence of any proper defence of genuine property interests in coastal areas, and I have to say that on that point I agree with him.

The bill creates—some would say covertly—a form of exploitation right for some iwi and hapū. Those rights in areas where they can get marine titles can easily be supported, but the circumstances of creation of those titles could simply discredit any kind of status, other than reserve. They do not give their owners the true owner’s stake in preserving the long-term value of their interests. That is something that I think we in this Chamber should be genuinely concerned about. In that respect I welcome the debate that we are having today.

I think the bill is promoted without any proper defence of true property interests for Māori. It might well surprise many of those on the Opposition ranks to hear me talk about that. But the bill removes such interests from local authorities, and even from current lease or licence holders. The bill should have been, I would have thought, for a National Government an opportunity to strengthen true property rights for everybody, all citizens of this country, whether they be Māori or non-Māori.

We should also consider as a general part of this debate why we have property rights, why they are important, and why they are a fundamental grounding of our legal system and what we stand for. Property rights protect minorities against majorities, so that those who have the money, the wealth, and those who have the ability for whatever reason to wield a big stick are not able to do so to the detriment of those who have a genuine property right.

E tū atu tēnei e te Kaiwhakahaere o te Whare, hei kōrero atu mō te āhua o te pire nei. E tautokotia atu ngā whakaaro e puta ā-waha a toku hoa nei a Rāwiri Parker me Shane Jones e whakaaro atu mō te āhua o te tikanga mō te takutai moana, e puta atu te whakaaro, e waiho atu mō te Minita anake engari, e whakaaro atu rā tātou mō te haerenga ki te kōti.

Nō reira, he nui atu ngā whakaaro mō te wāhi tahi nei. E tū kaha atu, e puta atu te whakaaro mō te āhua o te tikanga me te ture me te waihotia atu ngā tupuna ki a tātou mō tātou a ngāi Māori nā te mea, i roto i te tuhinga e kī atu wētahi waihotia atu ki ngā kōti nā te mea i roto i a tātou, i reira kē wētahi o ngā iwi mai rā nō e mau tata ana ki te takutai moana, e ora ana te manaaki a ngā hua o Tangaroa, e nui atu te āhua pērā tonu. E whakaaro atu, he aha ai e kī tēnei anake te āhua anake e mau ana mō tēnei tino take. Nō reira, e whakaaro atu mō ngā nekeneke haere mō te ture nei.

E tīmata atu te kōrero e puta ā-waha atu a te Minita nei mō tana whakaaro, mō te whakaae, te kore whakaae mō te ture nei. Nā te tuhinga nei, e wehewehe atu mō ngā whakaaro a wētahi e pīrangi e waihotia atu ki te Minita e whakaaea, kāre e tae atu ki ngā kōti, kāre e tae atu i roto nei o te Whare Miēre. Nō reira, tērā anō te mea i roto i a tātou i konei e wero ana mō tēnei wāhi. Nā, te mate hoki pērā tonu atu te āhua mō wētahi o rātou e tae atu i te kōti. E mau atu te mātauranga mō ngā kaiwhakahaere o te kōti i roto i te ture.

[Mr Chairman, I rise to speak about the nature of this bill. I support the views expressed by my colleague the Hon David Parker, and those expressed by the Hon Shane Jones, relating to tikanga—how it relates to the foreshore, and whether it should be left solely to the Minister. We favour going to court.

I have many comments to make about the foreshore—strong views about tikanga within the law and the legacy left by the ancestors for us, the Māori people, because in this bill, it says that courts can make a ruling. But we are mindful, too, that some tribes have lived close to the foreshore for a long time—nurtured and looked after Tangaroa’s resources at the same time. There are many examples like that. I say, leave it for the courts to determine. Why make this the only real reason for it? So we should really think about the implications of this legislation.

When the Minister began his address, he expressed his view in regard to agreeing or opposing this legislation. Now to some, this bill is divisive because it is left to the discretion of the Minister. He determines whether a settlement goes before the courts, or whether it goes through our parliamentary process. That is another reason why we on this side of the Chamber oppose this. However, those who choose to go to court will also be confronted with a similar situation if their more knowledgable ones give advice to court officials.]

Sitting suspended from 6 p.m. to 7.30 p.m.

💬 Hon Darren Hughes: I raise a point of order, Mr Chairperson. I am sorry to interrupt my colleague; this should not take long. I have not had a chance to consult with the Opposition’s junior whip about the part of the Marine and Coastal Area (Takutai Moana) Bill that we are currently considering. My specific question is, how many Minister’s amendments are there to this particular part?

The CHAIRPERSON (Eric Roy): They are on the Table.

💬 Hon Darren Hughes: Do you know how many there are?

The CHAIRPERSON (Eric Roy): I do not. I have just come here, as you have. They are accessible on the Table.

💬 Hon Darren Hughes: So all the amendments that are available for debate and for the voting on this particular part have been tabled at this time by the Minister?

The CHAIRPERSON (Eric Roy): That is correct. I understand so.

It is interesting to note that the High Court will have a fair bit of sanctioning power, and what certainly needs to be ensured at this early stage is that the judges have the ability to cope with Māori tikanga and understand the nuances of hapū and iwi conflict, important as it is. It is the issue that needs to be broken down. There can possibly be an agreement, but what is more important is that we do not fuel or encourage more conflict amongst the whānau and the hapū. In some parts that wehewehe is something that certainly puts asunder a lot of hard work by people in this building, by people outside, and especially by the whānau, hapū, and iwi. That is of interest.

I want to come back to this issue, because I want to commend the Minister for ensuring clause (3)(2)(a) in Part 1 of the Marine and Coastal Area (Takutai Moana) Bill “sets out the purpose of the Act and acknowledges the importance of the marine and coastal area to all New Zealanders and the customary interests of whānau, hapū, and iwi in that area”. I really commend the Government and encourage it to hold that line, because if one has been an activist and a collector and gatherer of the fruits of the takutai moana, then it is important that there is a sequence that has been well driven and well trodden.

First of all, it starts off with the whānau, the family who go to ruku pūpū, to gather seafood, to make sure that they are replenished and that they feed their families well. The next is hapū, who in a sense try to determine and define boundaries and those issues relevant to that hapū—the collection of those whānau. Last of all is the iwi, who may, in relation to representing the whānau and the hapū, ensure that all those issues that are relevant to working there, or to doing anything with the foreshore and seabed, are recognised and managed well in accordance with the tikanga and with mana. There is inherent clarity in that. Certainly, I commend the Minister on that.

I will deal with a matter that arises from clause 7 that relates to the definition of “common marine and coastal area”. The importance of this definition is that parts of the marine and coastal area, which is also defined in the bill, are subject to claims for customary interests, and they can be made only in areas that are common marine and coastal area within the definition of the bill. Of course, the definition that came to the Māori Affairs Committee is the definition that is still set out in the bill. That is now being amended by Supplementary Order Paper 207 from the Minister in the chair, the Attorney-General, and it changes the definition substantially.

In this regard, I refer the House to a letter from the New Zealand Law Society, dated 7 March. This letter was written on behalf of the Law Society by its president, Jonathan Temm, who is becoming increasingly concerned at the poor processes used by this Government, not just in respect of this bill but also in respect of another bill. Indeed, as we sit here, in another part of this complex today, similar poor process is being adopted in respect of a telecommunications bill. Increasingly, the Law Society is concerned that the effect of this is that we can have bad law and we can make mistakes because we do not allow changes to proposed law to have proper scrutiny. The letter stated: “The Law Society has noted the Māori Affairs Committee by majority is recommending the passage of the Marine and Coastal Area (Takutai Moana) Bill without amendment. The appended list of possible amendments prepared by officials in light of submissions received”—

💬 Hon Tau Henare: What’s wrong with that?

Mr Henare should listen to the rest of the letter from the Law Society, because there is lots wrong with the process. Paragraph (c) of the letter continues: “Your subsequent public statement that you intend introducing amendments to the bill presumably by way of Supplementary Order Paper on its return to the House”, and “One such amendment will be to require that negotiated agreements concerning customary marine title be given effect through legislation. The society is concerned that the foreshadowed process of introducing significant amendments by way of the SOP procedure will remove the opportunity for pre-legislative scrutiny of these amendments. There are two specific concerns”, and then it notes them. I do not have time to go into them in full, but essentially the letter states that there is not as much public scrutiny of proposed amendments.

💬 Paul Quinn: Is that all?

“Is that all?” is pretty revealing of the attitude of the Government to using proper processes so that we do not make mistakes as to law.

I will give members just one instance, and I have time in this call to develop only the one instance, although there are lots of others that I want the Minister to comment upon. The definition of “common marine and coastal area” in clause 7 as it came to the select committee stated that excluded from the definition of common marine and coastal area was “(b) any area that, immediately before the commencement of Part 2, is both owned by the Crown and also has a status of any of the following kinds:”, and then it listed conservation areas within the Conservation Act, national parks, reserves within the meaning of the Reserves Act, and wildlife management reserves. The Minister has already talked about paragraph (c) of the definition relating to Te Whanga Lagoon in the Chatham Islands, but he has made no reference to the changes being made to paragraph (b) and the reason therefore. I have some questions for the Minister, because I am actually not sure what the import of this amendment is.

I had a call today from someone who said that the effect of this amendment is to exclude from the exclusions areas such as the Hauraki Gulf Marine Park. The Hauraki Gulf Marine Park Act created a marine park that extends from the Firth of Thames out to Little Barrier Island and Great Barrier Island. Those islands no doubt include areas of foreshore, and no doubt there are areas of seabed that are also affected by the Hauraki Gulf Marine Park Act. I would have thought, given that preceding that Act those areas were vested in the Crown, that those areas would be protected under the existing definition that came to the select committee and that those areas would be outside the areas for which there could be claims of customary marine title. Now this has been changed by Supplementary Order Paper 207, it seems, so that those areas—and this is a big area; the whole of the Firth of Thames or a substantial part of it, as I understand it, out to Great Barrier Island and Little Barrier Island—

I move, That the question be now put.

Tēnā koe, Mr Chair. Tēnā koutou e te Whare. I will address Part 1 of the Marine and Coastal Area (Takutai Moana) Bill, but I would like to give some context. In 2004 my partner and I were the original, token tauiwi who travelled from Tauranga to Wellington with Ngāti Porou led by Tāme Te Maro, and with Ngāti Kahungunu led by Moana Jackson, Ngāhiwi Tomoana, and Mereana Pitman. This uplifting hīkoi joined the rest of Aotearoa on the forecourt of this Parliament to do more than oppose the Labour Government’s legislation. The hīkoi upheld the political and cultural strength of whānau, hapū, and iwi who had travelled together to remind the Government and the rest of the country that their mana whenua status and rights in the realm of the takutai moana had never been superseded, given away, or handed over and that they were, therefore, the last people who needed to prove their relationship. Raupatu was not acceptable that day, and raupatu is not acceptable today.

We sit here now, in 2011, and later we will be arguing over the tests, as another Government wishes to establish the recognition of a tangata whenua right to go to court. Regrettably, the repeal of the original legislation is not the solution, although it is being repealed in this bill tonight. Some are arguing that the bill is a step in the right direction, but restoring due process in a manner that basically maintains basic inequality of access to justice cannot be celebrated.

In terms of Part 1, the purpose of the bill is not, in my view at least, to provide true justice and equity under Te Tiriti o Waitangi, let alone access to the beach for all New Zealanders. Access to the beach for all New Zealanders has never been the purpose of this or the previous legislation. The “haters and wreckers” have never been the hapū katoa asserting their mana whenua. Perhaps the Coastal Coalition might like to consider its responsibilities in the fostering of hate and the wrecking of local community and hapū relationships through its particular and perverse take on this bill.

There are numerous issues to be addressed, from the privileging of private title-holders in another part of this law to the unfair thresholds for establishing so-called customary rights within 6 years. Expressions such as “customary title” and “common space” have been given new and particular definitions, and the courts will no doubt have a field day, at others’ expense, establishing those meanings.

For me, the underlying purpose of the bill is expressed in clause 9. The Crown, under whatever name we choose, wants control of the coastal resources so that it can bargain with multinationals. From Rio Tinto on the western coast to Petrobras in the east, we have proposals for mineral exploration, sand mining, and oil drilling. The Crown does not want to bargain with iwi as well, so it is much tidier for the Crown if it is the decision maker.

The public thinks this bill is about their right to a picnic in the sand, but really it is about the development of undersea and coastal wealth at the expense of the environment and future generations. While we fight over the mirage of public access, the companies are busy working with our own Crown research entities, assessing the opportunity to drill for oil and mine for sand.

On the original hīkoi in 2004 lots of people were acutely predicting the intensification of the coastal prospecting that we see today, and which is being upheld by clause 9. But, as has been said before, we will fight on the beaches. If we go to the East Coast we will find hapū katoa fighting for the right to protect their area from oil drilling, and those hapū see a direct relationship between Part 1 and their rights as mana whenua to protect their land from Petrobras, a particularly unedifying multinational whose history includes many instances of oil-spills. Therefore the rights of the indigenous people of Aotearoa need no proof, but their right to protect the environment alongside other citizens, in terms of their relationship with Tangaroa and Papatūānuku, is in need of our protection.

If we want to look in detail at the way in which the coastal and economic zone has been expanded, we will see a large increase in prospecting and mining rights, which clause 9 absolutely establishes the Crown’s right to maintain its hold over. We will find that many citizens, as well as tangata whenua, are very concerned about that. We can keep talking about access and about the tests, which we will talk about in the debate on Part 2, but, in the end, the tangata whenua do not have to prove anything. They were here first.

What we do need to prove as a country is our capacity to look after our resources and respect people whose kaitiakitanga goes back through generations, and who do not have to prove it. I think what we need to prove is our capability to look after our resources—our vulnerable coastal environment, and our vulnerable communities who want to maintain their mana whenua, rather than having to establish it through a court of law. I am very strongly in favour of the Green Party’s position on this bill. We oppose it.

Before the dinner break I was talking about the wardens and the definition of “warden” under clause 7 of the Marine and Coastal Area (Takutai Moana) Bill. I think it is important for the record that we differentiate between the wardens appointed for the purpose of this legislation and wardens appointed under the Maori Community Development Act. The wardens under that Act are good-natured, normally elderly people who stand at the gates of marae to direct traffic. For the purposes of this legislation, wardens basically—

💬 Paul Quinn: Discrimination, Kelvin! That’s terrible!

💬 Hon Shane Jones: Rark the wardens up!

I am sorry, but I am having trouble concentrating because of the interjections, not so much from Mr Quinn this time, but more from my own colleague. The wardens will be responsible to a customary marine title group for the following functions: to assist in implementing prohibitions or restrictions, entering wāhi tapu for the purpose of performing their functions, and advising members of the public of any applicable prohibition or restriction.

The question is about how those wardens are to be identified by members of the public, and how the public will know that there will not be any old Tom, Dick, or Hōri turning up and telling them they cannot be in a particular place. That question needs clarification in terms of this bill—exactly what “warden” means. There was hysteria, again from the likes of the Coastal Coalition, that we would have Māori in sunglasses and with baseball bats scaring people off the foreshore and seabed. When we think that this bill probably relates to only 2, 3, or 5 percent of New Zealand’s coastline, and that most of the areas that we are talking about will be relatively isolated, such as around the North Cape, it is pretty unlikely that—and this is just to settle the nerves of the ACT Party and the Coastal Coalition—there will be a big Māori in sunglasses and with a baseball bat standing on the edge of the beach to warn people off.

Members might go to the North Cape, but I doubt whether, in the history of all of Aotearoa New Zealand, more than 2,000 people, over the last two millenniums, have set foot on those beaches. If we left our cars at the road and walked in, it would probably take about 4 or 5 hours to get there. I would say that if any warden was dumb enough to be standing there waiting for somebody to turn up just so that he or she could turn them away, the chances are that that warden would probably be more likely to give them a cup of tea and welcome them to go and have a swim at the beach, just because he or she would want to have some company.

The warden issue needs to be settled. People need to know that we will not have big, burly Māori frightening off everybody. There was another guy, obviously another Coastal Coalition person, who said he was scared that his surf life-saving club would not be able to practise surf life-saving. He said it was the oldest surf life-saving club in the Tauranga area, he had been a surf lifesaver there for 50 years, and now it was ridiculous that, when somebody needed to be rescued from the ocean, the club would have to ring up and ask permission from a warden or somebody like that so that its members could cross over the sand and get to the water. We said: “Mate, have you read the bill?”. The answer was that he had not, or, if he had, he had totally misunderstood it, because if his surf life-saving club had been there for 50 years, there is no way that that beach could be deemed to have been exclusively used by Māori, and he had nothing to worry about.

I want to talk about the wāhi tapu. Again, this issue got the Coastal Coalition’s back up. I cannot think of many areas—in fact, I can think of only one area—underneath the high-tide mark that may be deemed to be a wāhi tapu. It is the resting place at Tākou Bay of the Mātaatua waka. According to our traditions, the Mātaatua came over and settled down in the Whakatāne area somewhere. There was a bit of a ding-dong between a couple of brothers, who were the chiefs on the waka, and our tupuna Puhi—

I move, That the question be now put.

I will talk about three things in relation to Part 1 of the Marine and Coastal Area (Takutai Moana) Bill. I want to talk about the seabed, airspace, and accommodated activities.

I will start with the seabed. Historical use of the seabed any significant distance from the shore seems impossible to prove, and allowing title to be granted to iwi allows for unjust and potentially divisive future claims. Historically, no one has crawled about on the seabed miles from shore.

💬 Hon Tariana Turia: How do you know that?

There is no chance of anybody holding their breath on the seabed from 1840 till now—that just cannot happen. From the 18th century to the 20th century, the Commonwealth generally considered territorial waters to extend for 3 nautical miles. That distance was the length of a cannon shot, and thus the distance of water a nation could defend from—[Interruption]

💬 Hon John Boscawen: I raise a point of order, Mr Chairperson. I am sorry to have to interrupt my colleague, but I am hearing harangues from Labour Opposition members. I also have to listen to continued interjections from Tariana Turia. The reason I specifically object is that when I gave my speech in the first reading debate, Tariana Turia lodged a point of order objection to me, complaining—

The CHAIRPERSON (Eric Roy): The member must address those matters at the time. We do not deal with historical matters here. I will deal with the matter of noise in the Chamber. This is a reasonably impassioned debate, and at times the noise levels have come up and gone down. Overall, I think the noise levels are reasonably acceptable, but from time to time I need to caution members, and I think we need just a bit of decorum and a wee reminder of that.

The Hon Turiana “Turei” seems to believe that—

💬 Hon Tariana Turia: I raise a point of order, Mr Chairperson. If the member is going to use my name, she can pronounce it correctly. I am offended that she does not.

The CHAIRPERSON (Eric Roy): That is correct. Members need to take a bit of care about these matters.

My apologies. The member who interjected suggested that I do not know whether somebody could have held their breath on the seabed since 1840. Perhaps I do not know, and perhaps she does not know either.

As I was saying, we have had territorial waters extending to 3 nautical miles. That distance is the length of a cannon shot, and was what people could defend. Putting aside the distinct lack of cannons in 1840, and any ability for anyone living in New Zealand at that time to defend even that region, it is quite clear that nobody has ever had the exclusive use and occupation of the seabed beyond that mark—let alone to the 12 nautical mile limit that came in only last century. It should therefore be near to impossible to grant any title to any iwi claiming such rights. That does not mean, however, that the courts do not know something I do not, and that aspect of that legislation should not be tried by the courts.

I turn to the airspace. The bill’s explanatory note states that the foreshore and seabed is “the area from the high-water mark at mean high-water spring tides extending seawards for 12 nautical miles. This area includes the subsoil and the waterspace and airspace above this area (but not the air or water itself).” What is the airspace? ACT wants the foreshore and seabed issue to be left to the courts where it belongs, but in a perverse way we may get our wish. One can see the definition of airspace going to court time and time again, as we are forced to deal with questions like whether paragliding businesses will have to pay whenever they take somebody paragliding in the airspace—or the air? How tall does a ship’s mast have to be before it is in the airspace? What about surfcasters who throw their lines across the air into the water? It may sound crazy, but for those directly affected by this bill—those whose livelihoods are at stake—it is very serious indeed.

The third point I would like to make—

💬 Hon Tau Henare: Tonight we are witnessing the discovery of a new planet. It’s time to go home.

Certainly, the honourable, interjecting member can take a call any time he wants to, if the Chair allows it. The definition of “accommodated activity” has been changed on Supplementary Order Paper 207, put forward by the Minister in the chair, Chris Finlayson. The definition no longer includes activities that can be lawfully undertaken without resource consent. In practice, this will mean that activities that never needed resource consent may be controlled by the holder of a customary marine title. The intention of the bill was to allow things that were already going on to continue, and for anything that currently has resource consent to be able to continue. I am sure the Minister is a meticulous person, so presumably he left out on purpose the definition that included—

I move, That the question be now put.

I would like to take a call on the Marine and Coastal Area (Takutai Moana) Bill, particularly in respect of clause 8. Clause 8 is a rather long and large litany of the meaning of “accommodated activity”. The bill attempts to codify “accommodated activity” meaning one of those things that will be exempt from the bill.

To start with I would like to explain very clearly and carefully why Labour supports abolishing clauses 8 and 9—and Labour has put up an amendment in the name of David Parker—so that we do not have to codify a rather ridiculous and long list of exemptions that should go to the court and have the High Court decide on those matters. I take into account also my colleague Parekura Horomia’s reservations about the High Court and the ability of the High Court—as has been seen in other cases—to understand and to weigh up Māori tikanga, in terms of being able to make that particular decision.

I want to look at a couple of issues around clause 8—in particular, clause 8(1)(d): “an existing activity that is undertaken in accordance with a resource consent or other lawful approval granted under an enactment that was replaced by the Resource Management Act 1991:”. That brings an enormous amount of latitude to the interpretation of the bill, rather than trying to codify every single possibility and it going to the High Court for it to be ruled on in that particular way.

I will take a moment to compliment the officials—some of whom are here in the Chamber—for the extraordinary job they have done in putting together more than 5,500 submissions and nearly 300 oral submissions for the departmental report from the Ministry of Justice. The really unfortunate side of this is that it will not be used to its full extent, because we have not had the ability to debate the bill in the way we should have when it is of such vital importance to New Zealand. Instead, it will be research for the enormous number of PhD and master’s degree students who will be looking through it to show where the Government went wrong when it tried to ram through legislation that was so divisive in this country. I remind members that this bill is legislation that John Key said he wanted to sort out and to resolve once and for all. Unfortunately, that will not be the case.

I come back to clause 8, because it is the area I particularly want to focus on. I will quote from the officials’ departmental report on clause 8(1)(i): “The purpose of this clause is to ensure that the existing marine mammal sanctuaries”—and as I was saying before, here we get into the detail of the bill that is trying to codify every single aspect of a possible situation that might come up—“continue to operate as they have done prior to the enactment of this bill. Any substantial iwi and hapū rights over such areas should have already been considered and dealt with during the establishment phase of the reserve.” But of course the reserve might have already been in place, and then a customary right might be established. The question then becomes which has sway over the other. It goes on to state that management activities will depend on the nature of each sanctuary but could involve activities such as monitoring and gathering information. In this situation, in relation to clause 8(1)(i), the number of areas that the legislation attempts to codify were quite rightfully pointed out by a number of submitters.

My colleague David Shearer has spoken about clause 8 of the Marine and Coastal Area (Takutai Moana) Bill, and I will talk about clause 9. It deals with the meaning of “deemed accommodated activity”, as opposed to “accommodated activity”. I do not quite understand a few of the words. I hope the Minister in the chair, the Attorney-General, will provide me with a couple of definitions.

In subclause (1), “deemed accommodated activity means … a nationally or regionally significant structure or infrastructure”. I am quite keen to understand what defines a “nationally significant structure or infrastructure” and a “regionally significant structure or infrastructure”. What does that mean? Is it a simple road, or are we talking about a bridge or jetty? “Significant” is quite a wide term, and everyone will be aware that what is significant to one person is not necessarily significant to someone else. Subclause (1)(a) introduces a word that is so subjective, I would argue, as to be almost meaningless. I can see this process being tied up in the courts for quite a long time arguing that very point: what is “significant”?

I turn to schedule 1, “Process by which certain new activities in customary marine title area become deemed accommodated activities”. For example, clause 1 of Part 1 of schedule 1 states: “Prior to the application under the Resource Management Act 1991 for any resource consents for new nationally or regionally significant structures or infrastructure in a customary marine title area, the proposed structure or infrastructure may become a deemed accommodated matter in accordance with this Part.”

Schedule 1 lists the process under which something becomes a deemed accommodated activity. It is quite complicated, and clause 4 of Part 1 of schedule 1 goes from the ridiculous to the sublime. It states: “Upon receipt of an application under clause 3 … the Minister must consider and decide to—(a) seek more information from the applicant; or (b) decline the application on the basis that insufficient information has been provided, or the proposed structure or infrastructure does not meet all or any of the requirements and criteria set out … ; or (c) make an initial decision on whether there is sufficient information to demonstrate that all of those requirements and criteria have been adequately addressed.”

If one is applying for something to be a deemed accommodated activity, one has to satisfy seven different tests. Even then, the Minister may say that a little bit more information is needed or that not enough information has been provided. The Minister may just make an initial decision on whether there is enough information. I can see this process being tied up for a long time in the courts.

💬 Hon Shane Jones: Litigation.

Mr Jones has hit the nail on the head. Members know who will get wealthy from this legislation. An army of lawyers will argue the definition of “significant”.

As I said, clause 1 of Part 1 of schedule 1 talks about new nationally or regionally significant structure or infrastructure. What about a jetty that is falling down? I can think of several around the place that are unsafe. If they were done up, they could become nationally or regionally significant structures or infrastructure. Does that mean if it is not new one does not need to go through this whole process? It is like doing up an old vintage car: all we need is the vehicle identification number. We can change the whole car, yet the car is a vintage if it has that number. We could plant a 150-year-old bit of wood in the sand and say that we do not need to go through the whole process, because the wood was not a new structure or infrastructure in terms of schedule 1.

Again, I come back to what is meant by “significant”. I cannot make that call and I do not think anyone can, but I tell members who will be able to make that call. A District Court judge will make the call on what constitutes “significant”.

I move, That the question be now put.

The CHAIRPERSON (Eric Roy): The question is—

💬 Hon John Boscawen: I raise a point of order, Mr Chairperson. I understand that you are taking the vote that we stop debate on this part of the Marine and Coastal Area (Takutai Moana) Bill.

The CHAIRPERSON (Eric Roy): No, let me correct the member. I am giving the Committee the opportunity to decide whether this is the termination of the debate.

💬 Hon John Boscawen: I raise a point of order, Chairperson. This is very important legislation. It has far-reaching ramifications for all New Zealanders. There is a massive transfer of wealth from all New Zealanders to selected iwi, and the ACT Party has already—

The CHAIRPERSON (Eric Roy): I have taken all those things into consideration—

💬 Hon John Boscawen: Point of order—

The CHAIRPERSON (Eric Roy): I am on my feet. I intend to put the motion.

💬 Stuart Nash: I raise a point of order, Mr Chairperson.

The CHAIRPERSON (Eric Roy): I will hear the member.

💬 Stuart Nash: I ask for clarification, Mr Chairperson, as a new member because sometimes we are a little bit hazy on these rules. I understood that you cannot put the motion if new information in the bill had been brought forward. Am I wrong in that?

The CHAIRPERSON (Eric Roy): I make a judgment across a range of things as to when it is time for the closure. I take the matter very seriously, and the member will be aware that I have been in Parliament for some time. It is not my intention to curtail debate for the sake of being obstreperous, so I am going to put the motion.

💬 Hon John Boscawen: I raise a point of order, Mr Chairperson. The ACT Party has given notice that we have suggested a number of amendments on this bill. You seem to be denying us the chance to put them, and I ask that the Speaker be recalled.

The CHAIRPERSON (Eric Roy): The member is entitled to do that. I can forecast what the result will be; it has happened several times. If the member wants to do that, that is his right.

💬 Hon John Boscawen: I move, That the Speaker be recalled.

Motion agreed to.

House resumed.

Speaker Recalled