Marine and Coastal Area (Takutai Moana) Bill

Part 2 of the Marine and Coastal Area (Takutai Moana) Bill has three subparts. The first outlines the basic interests in the common marine and coastal area, and this includes the important clause that provides for the special status of the common marine and coastal area as an area that cannot be sold. I do not intend to go through the way in which we reached the concept of a common marine and coastal area.

💬 Hon Darren Hughes: Why not?

Because the Hon Peter Dunne, I say to the senior Opposition whip, gave an excellent second reading speech in which he explained how the concept of public domain had almost taken hold when Ms Clark needed to run to the New Zealand First Party for guidance, and New Zealand First was adamant that there had to be absolute Crown ownership. That is the first subpart.

Certainly, the bill as introduced contains in this part provisions to repeal the 2004 Act and restore customary interests, which were extinguished by it. It also contains provisions as to existing interests—for example, resource consents.

Subpart 2 outlines public rights and powers in the common marine and coastal area. It preserves the public right of access, fishing rights, and navigation rights—and I will say something about access in a minute. Subpart 3 provides a new regime for reclamations, which is as a result of a great deal of consultation with organisations like the port companies.

There are a couple of changes contained in the Government’s Supplementary Order Paper 207. As mentioned earlier, it is proposed that clauses 14 and 15, which deal with the repeal of the 2004 Act and the restoration of customary interests, be moved into Part 1. Clauses 16 and 16A change the status of roads, so roads will no longer become part of the common marine and coastal area and will continue to be owned by their current owners. If an unformed road continues to be unformed for 15 years, it will become part of the common marine and coast area.

The Supplementary Order Paper also reframes clause 30, and I believe that that will better meet the policy intent that these functions held by the Minister of Conservation are residual only, and it also moves these particular provisions to Part 4. The Supplementary Order Paper will also remove clause 31, which relates to notices regarding dangerous structures. The clause is no longer needed, as the relevant agencies already have jurisdiction under existing legislation.

I do want to say something about clause 27, because it has been the subject of lots of excited comment. It was the first stage of opposition to the bill for organisations like the Coastal Coalition, and certainly questions have been asked in the House about it. Some of those questions could almost be regarded as offensive—questions about Māori wanting to block access to the foreshore and seabed, which is a proposition that I find profoundly insulting. It is suggested that a Supplementary Order Paper will make it clear beyond peradventure that no one can charge. Indeed, the explanatory note on Supplementary Order Paper 210 in the name of Hilary Calvert says her “for the avoidance of doubt” provision is based on a similar prohibition on charging contained in the existing Foreshore and Seabed Act. It seems that the opponents of this bill are like insatiable cormorants—we give them some guidance, and we give them some help, but it never satisfies them; they just want more and more. This Supplementary Order Paper reaches, as it were, the denouement, because it is truly fantastical.

But anyway, I will say something about the existing regime in the 2004 Act, because section 7 of that Act provides for certain rights of access. I particularly refer honourable members to section 7(2): “Every natural person has access rights in, on, over, or across the public foreshore and seabed.” Those access rights can be limited for various reasons—for example, use by port companies, naval bases, and places like that. In fact, in section 7 there is no prohibition on charging; it is a statement of rights of access. Then one moves to section 40, which is said to be the non-charging section, but one finds it relates only to the guardians of a foreshore and seabed reserve, or an applicant group, or a board not being entitled to charge or collect fees or other forms of payment. The point I am endeavouring to make is that the 2004 Act does not contain a general prohibition on charging, and that to suggest otherwise is simply to misread the legislation.

A number of submissions have been made, some in good faith and some in bad faith, about the scope of clause 27. As I have said all along, one does not need to add the phrase “without charge” because a reading of the bill, and in particular I refer to clauses 64 and 119, means that the cumulative effect of what we are dealing with here—a bundle of rights referred to in clause 64 when an applicant group succeeds in obtaining customary title—are just those rights, and no more than that. But because some concerns were expressed by people—no doubt, as I say, some in good faith—we have added into clause 27 the phrase “without charge” to make that clear beyond any doubt whatsoever.

But undeterred, Ms Calvert has put forward a proposed amendment to avoid doubt; she wants to add in a subclause (5). I say to her that it does not even get to base one, because there is no doubt whatsoever—there never was any doubt—and we are getting to an extreme stage where the member is proposing an amendment that can only be regarded as stating the obvious. I was trying to think whom she reminded me of the other day, and then I came across it. Many years ago there was a very good programme called Fawlty Towers. One day when Sybil was in hospital for treatment of an ingrown toenail, Basil suggested that she enter Mastermind and that her topic could be the bleeding obvious. Really, it is that kind of amendment that we have; it is a statement of the bleeding obvious. One finds that it is totally unnecessary when one looks at what the Supplementary Order Paper put forward by the Government provides, and when a fair reading of the bill provides the combination of clauses 64 and 119. So I say to Ms Calvert that her proposed amendment is not, as it were, complicated by any vestige of merit. It is unmeritorious, it is mischievous, and, quite frankly, it is unpleasant.

How typical it is of the Minister in the chair, the Hon Christopher Finlayson, to get as personal as that in this debate. I find it to be completely without dignity that he would speak about other members of the Committee like that. I disagree very strongly with Hilary Calvert and with much of the language that she has used today in this debate, but I do not think there is any place for that kind of personal, nasty attack. Not only is it undignified but it belittles the Minister to be engaged in that kind of behaviour in the Chamber over an issue that is as serious as the Marine and Coastal Area (Takutai Moana) Bill, which there is no doubt that everyone has a very strong view about, even if one disagrees with another member’s view.

I will address Part 2 of the bill briefly. One of the issues is that in clause 11 a statement has come up, which I think it is made later on in the bill, as well. Clause 11(2) states: “Neither the Crown nor any other person owns, or is capable of owning, the common marine and coastal area,”. I will repeat that: “Neither the Crown nor any other person owns, or is capable of owning, the common marine and coastal area,”. That is a legal fallacy. That does not actually exist in New Zealand law. The process of colonisation was one whereby the two principles of imperium and dominion were brought to Aotearoa through colonisation by the British Crown, imperium being the right to rule, and dominion being the right of the Crown to have underlying ownership over all the land. Over time that right has been effectively passed on, through various systems and constitutional niceties—and not quite such niceties—so that in effect it now belongs to the Government to exercise on behalf of the Crown as its ownership right.

So when a law states that nobody owns the coastal and marine area, that is not true; it is just factually incorrect. The ownership of Aotearoa, through the colonisation process, rests with the State and with the executive. Having that kind of rubbish in legislation is bad enough. That people are passing legislation that just does not tell the truth about the factual basis of landownership in this country is historical fallacy. But that also leads me to challenge the Māori Party.

I ask that the Māori Party members be prepared to stand up to defend the statement they made earlier today that they are proud of this legislation and that this bill is a Māori Party bill. I ask them to say how they can argue that this bill is a Māori Party bill, say they are proud of it, and say they will vote for it, when we have a legal fallacy here around ownership, and when the whole basis of Māori issues around the foreshore and seabed is that there could still be areas of extant customary title as set out in the common law, and that is ownership. That is ownership, and that is what customary title, tikanga title, is about: it is about ownership. Now the tikanga way of describing and talking about the responsibilities of ownership is different, and Māori have tried to get the message through to the Government, to members, and to the public that it is not as much about the right to do with the land as one chooses as it is about the responsibility to care for it for the future. The concepts of what ownership means might be quite different, but it is hard to have to use the English language to describe these concepts when ownership is an issue.

Māori have come to the Māori Affairs Committee, to the panel, and to select committees in years gone by to say they want their right to be restored to go to court to assert their customary title ownership in tikanga terms. If that is what Māori have said, and if the premise on which the Māori Party was built was respect for that principle, respect for that call by Māori to assert their customary title ownership in tikanga terms, then how can the Māori Party members in any kind of conscience stand here to say they are proud of legislation that specifically strips Māori of that right? This bill says no person is capable of ownership of the customary marine area, yet Māori have said over and over that they want to have the right to be able to test, and to assert, their customary title ownership in tikanga terms. The Māori Party members’ votes will determine whether this legislation proceeds, and therefore whether the confiscation of this land and the extinguishment of that right will continue. I think that those members owe it to Māori who have supported them, and whose call the Māori Party is here to respect, to explain why they can now vote against the rights of Māori to assert their customary title ownership in tikanga terms, and in the fullness of those tikanga terms.

At the same time as we are debating this bill, a hīkoi is making its way through the country. A large number of Māori have made their way from the north. I understand that they are at Hato Petera College this evening, and are making their way into Tāmaki-makau-rau tomorrow. The premise of this hīkoi and of the hīkoi on which the establishment of the Māori Party was based—and Tariana Turia in previous years met the parent hīkoi, the mother hīkoi of the present one, if you like, some years ago—is the same premise: that the foreshore and seabed should not be confiscated, and that Māori rights should not be extinguished. “Not one more acre” is the call of this hīkoi, just as it was of the last hīkoi. Those whānau who are making their way through the country to demonstrate their opposition to this bill deserve to be given an answer from their representatives in this Parliament. They deserve to be given an answer from those who have said in the past that they would stand up and fight for their right to have their rights recognised, and to oppose the confiscation and extinguishment of those rights. Those people are entitled to an answer as to why the Māori Party is prepared to take those rights away.

This issue is not easy. It is difficult, particularly for Māori and for Māori MPs, just as it was last time. This is a difficult debate, and it is especially difficult to hear some of the very crass comments that we have heard in the debate tonight. There is no doubt about that. But our people deserve to get answers. Our people deserve to be told by their representatives here why they are voting for a confiscation, and why the Māori Party members are voting to remove any capacity for the ownership that Māori have been asserting now since 2003, or before that, through the Ngāti Apa decision, for many years now—for a decade or more.

I ask the Māori Party to take a call and to answer the question—

💬 Hon Shane Jones: Good luck.

Shane Jones is quite right. I am not holding out a lot of hope. I certainly will not be holding my breath, as Hilary Calvert suggested we should do from 1840. I will not be holding my breath, but I do think the Māori Party owes it to our people to give them an explanation. If it was genuinely proud of this legislation, as Rahui Katene said it was, it would stand up and defend its position and explain to our people, who are marching through the country as we speak, why they have to march at all. Why is the Māori Party supporting this legislation at this time, when it knows, and it has said publicly, that this bill is bad? It has said this bill will not be effective and does not give justice to our people, so why does the Māori Party support it?

💬 Hon Shane Jones: That’s why the rangatahi are changing their mind.

It is also why our kuia and kaumātua are very disappointed in their political representation.

We are getting down to the nub of this issue: that there is customary title, which the courts have said could still exist in the foreshore and seabed, that predates the colonisation of this country, if you like, that that title should be explored, and that Māori who believe they may hold it are entitled to go to court to have their case heard. Yet the Māori Party is stripping them of that right. There is no doubt that this is very serious—

💬 Hon Shane Jones: The Labour Party? The National Party.

The Māori Party is stripping that right from those hapū who came to us. It is personal to some extent, as well. I sat with Tariana Turia on the foreshore and seabed select committee in 2004, and I remember us both weeping together over the harm that was being caused to our people.

Before I start, I would like to acknowledge John Boscawen for his tenacity in his points of order earlier. I do not agree with his politics and where he is heading, but I admire a new member, a new Minister, who stands up and is prepared to speak his mind, regardless of how wrong it may be.

I would like to carry on from what Metiria Turei said about neither the Crown nor any other person owning, or being capable of owning, the common marine and coastal area, which is stated in clause 11. I bring up this point because, as she said, it is a fallacy that the Crown can say that nobody owns the common marine and coastal area yet the Government retains the final say in what happens on the seabed. The Government can still override what Māori want in terms of the common marine and coastal area.

I want to raise an example—and there are members of my own caucus who disagree with my argument on this topic. There is a proposal for Crest Energy to build some turbines in the Kaipara Harbour for tidal power generation. There will be 200 of these turbines, if the whole proposal goes through, and each will be the size of a small apartment block. They will cover an area in the mouth of the Kaipara Harbour that is about 7 kilometres long and a couple of hundred metres wide, so these electricity turbines will be plonked on a substantial area of seabed.

Nobody is opposed to renewable energy generation. However, the point is these turbines will create a massive footprint on the seabed. There will be no navigation rights over the top of these turbines, obviously, for safety reasons. So what is being created is a property right—if this proposal goes ahead—over a substantial area of the seabed. That is what the Māori Party has agreed to. It has agreed that nobody will own the seabed, yet it agrees that the Government has the final say as to what can happen. The Māori Party is agreeing that the Government can create, in effect, a property right over a substantial area of the seabed in the Kaipara Harbour, against the wishes of Te Uri o Hau, the local hapū, and against the wishes of Ngāti Whātua. The Māori Party has agreed that it is OK for that to happen. So, basically, the tino rangatiratanga of that area of seabed is being gifted to the Government.

I cannot believe that the Māori Party is agreeing to this. I cannot believe that the Māori Party is allowing the Government to take total control, tino rangatiratanga, of this area of seabed. Even if customary marine title to the Kaipara seabed is given to Ngāti Whātua and Te Uri o Hau, a process outlined in schedule 2A on Supplementary Order Paper 207 allows projects like this, which would be an instance of significant national and regional infrastructure, to be built. Crest Energy can bypass the wishes of Ngāti Whātua and Te Uri o Hau, and can go to the Minister for Land Information, who, at the end of the day, has the final say and can decide that this project may go ahead. The Māori Party is legislating for tino rangatiratanga not to reside with the local hapū, Te Uri o Hau, or with Ngāti Whātua, but to reside with the Crown. That, in my opinion, goes against everything the Māori Party is meant to stand for. The Māori Party is going against its own values and its own principles by saying that the tino rangatiratanga of that particular part of the seabed is to rest with the Crown.

That will not be the only example of a project that is—

I begin by referring to clause 11 of the Marine and Coastal Area (Takutai Moana) Bill, which is one of the issues that the Attorney-General, Mr Finlayson, referred to in his opening remarks on Part 2. He talked with some pride about the common marine and coastal area being accorded a special status, which clause 11 achieves. In subclause (2) it states “Neither the Crown or any other person owns, or is capable of owning, the common marine and coastal area, as in existence from time to time after the commencement of this Part.” This is really a discussion about words, because what really determines what this means is the bundle of rights different people have in respect of that common marine and coastal area. If that does not change, then whether it is called a Crown area or a space that is not capable of being owned by anyone does not matter—they are just words.

In reality, the Crown still regulates what occurs in respect of this area. So if there are environmental effects, then those have to be assessed in terms of the legislation that controls development in those areas. In reality, this legislation, as does the current legislation, protects people’s rights of free access over those areas, so that does not change as a consequence of this legislation. All people have fishing rights in respect of these common marine and coastal areas, so that does not change. All people have navigation rights, so that does not change. No people have private rights to mine for oil and gas, because those were nationalised back in 1937, so that does not change.

As my colleague Shane Jones said in an earlier submission to the Committee, there are very little changes as a consequence of this change of terminology from the area being vested in the Crown, as the putative owner, effectively holding it on behalf of the people of New Zealand, subject to the different rights that different groups of people have. This change from the area being Crown land to being held by the Crown on behalf of New Zealand is subject to different rights in respect of different groups, including the rights of Māori to have their customary interest recognised. This change from the Crown holding it to no one owning it is an illusory change—it makes no difference.

💬 Hon Member: Fiction.

It is a legal fiction. It makes no difference in practice, so it should be seen for that. It is not objectionable, except to the extent that it is a pretence of a change when it is not a change, and that is where our objection arises to this. For this to be accepted by the Māori Party as settling its grievance seems to me to be ridiculous, because this is but a fiction. So I invite the Minister in the chair, the Hon Chris Finlayson, to acknowledge that, really, what one calls this area is less relevant than the bundle of rights that everyone has in respect of the area, and to acknowledge that the change from this being held in the Crown’s name on behalf of New Zealanders, subject to all of the different bundles of rights and responsibilities that I have earlier described, makes no difference in practice.

I want to raise another issue, which is the access clause, clause 27, and the clause that is being amended by the Minister. I note, again, that there are a large number of amendments in the Minister’s Supplementary Order Paper 207 that infringe the warning given by the New Zealand Law Society that these things should have been made public so that there was an opportunity for public scrutiny sufficiently in advance, so people could raise any concerns they had. That would normally have been done following the Māori Affairs Committee report, incorporating the amendments recommended by the Ministry of Justice in its 500-page departmental report, but, of course, because that process was so improperly truncated by Government members we did not have the ability to do that. We did not have the ability to have that advice from the select committee to this House at Parliament or to the Committee of the whole House, and we are reliant, therefore, on the Supplementary Order Paper, which raises these new issues.

In respect of the access clause, I prefer the new wording “without charge” of the Minister to that proposed by Hilary Calvert in Supplementary Order Paper 210, for a number of reasons. Firstly, I think it is easier to read, but, secondly, I think that Hilary Calvert’s amendment goes too far. I would like to go into that in some detail. Hilary Calvert’s amendment proposes to add clause 27(5): “To avoid doubt, neither a customary marine title group nor an applicant group is entitled to charge or collect fees or other form of payment from any person for body for the use”—I emphasise the word “use”—“or occupation of any part of the common marine and coastal area.” The Minister’s amendment makes it clear that one cannot be charged for access, but Hilary Calvert’s amendment goes a lot further and says that one cannot charge for any use. That, of course, makes a nonsense of the ACT Party’s argument that if there are property rights to be recognised, then those property rights are for the holder of those rights to use. If someone else were to come along and use the right that was the subject of a customary marine title, without payment of charge to the person whose right that was, it would make a mockery of the whole thing.

I would like the ACT Party to take a call and explain how that would be right. I understand that its property rights logic is being applied to its opposition to the bill, but it says that people who have an extant customary interest in the foreshore and seabed should have it recognised and should be able to utilise it for their personal benefit, as anyone else can utilise their property right. I find it absolutely irreconcilable that the ACT Party could take that position and then say that anyone can use it for free. I raise the issue of a right to extract a mineral that has not been nationalised. For example, there is some suggestion that there are areas of the foreshore and seabed where there may be customary title interests under seabed minerals, be it ironsands or other minerals. By saying that I am not saying that the Taranaki iwi are correct to say that they have extant rights, but somewhere in New Zealand there will be extant rights to minerals, and it would be a nonsense if someone else could come along and have the right to use that part of the common marine and coastal area for his or her private benefit to the exclusion of the person who owned it. I think that the proposed subclause (5) goes too far on the part of the ACT Party. I agree with the Minister’s amendment to clause 27. I think that is fair to settle down concerns, be they as he put it, with good intent or mala fides, but I do not agree with the amendment proposed in Supplementary Order Paper 210 by the ACT Party member Hilary Calvert for the reason that I have outlined.

So, in respect of that issue, Labour will be voting against the ACT Party amendment. If we had the opportunity to vote separately in respect of that particular amendment from the Minister we would vote for it. But it is probably going to be put, as is the Minister’s right, along with all of the Minister’s other amendments, many of which we disagree with. So we will be forced to vote against that as a part of a wider motion. But I note for the record that we approve of the change to that particular wording in that clause relating to access that is promoted by the Minister but oppose the change proposed by Hilary Calvert.

There are many, many other changes made to Part 2. The first of them is referred to in the Supplementary Order Paper 207 and records that in clause 11(2) we are omitting the word “Part” and changing it to “Act”. That changes the meaning so that the provision comes into effect from the commencement of this Act rather than from the commencement of this Part, and that seems OK, as do the changes to subclauses (3) and (4). In terms of subclause (5), I am not sure what the effect of this is. There is a deletion of clause 11(5) and a substitution of very similar wording. One of the difficulties we have when a Supplementary Order Paper that runs to 73 pages is produced as close to the next readings of this bill as this one has been is that it is difficult for us to get our heads around each and every one of these little changes. So I ask the Minister to explain what the difference is in effect for clause 11(5), which seems to be substantially reproduced in the Supplementary Order Paper, but seems to differ in the addition of a paragraph (f), which is not in the original version of the bill that came to the select committee.

The ACT Party has a number of amendments to Part 2, and a number of issues to raise. I start this first call by saying that I hope we have the opportunity to raise those points during the debate this evening and as it continues into tomorrow on this part. I will talk specifically about two clauses: clause 14, which runs to 1½ lines, and clause 17.

Before I address those two clauses in this call on Part 2, I need to quickly respond to a number of points. This debate on Part 2 started with an introduction by the Minister in the chair, the Attorney-General. The Hon Chris Finlayson was at pains to point out that New Zealanders would have access to the common marine and coastal area, and that it was never an issue and had never been an issue, but, notwithstanding that, he was prepared to succumb, if you like, to the urgings and the pressure of the ACT Party to amend clause 27 so that access to the common marine and coastal area would be without charge. In making those comments Mr Finlayson took the opportunity to take aim at my colleague Hilary Calvert. It was a very personal, direct, and hurtful aim. I am very sad that the Minister felt he had to stoop to those levels, and I acknowledge the comments of Metiria Turei, who rose to her feet immediately after his remarks were made.

I will also comment very quickly on the point that Kelvin Davis made during his speech in this debate. It was interesting that he was subject to interjections from Mr Quinn, I think it was, who taunted him by asking why he did not make his comments during the debate in the Māori Affairs Committee. Well, I suspect that Mr Davis would have liked to make those comments in the select committee, but this Parliament is ignoring the fact that the Government used its majority on the Māori Affairs Committee to ram this bill through.

We have a report from the Māori Affairs Committee. The official report of the committee is simply one page, and attached to that is—

The CHAIRPERSON (Lindsay Tisch): The cross-interjections are too loud. Calm it down.

We then have the Labour Party, Green Party, and ACT Party minority reports, followed by 40 pages of recommendations from the officials. Normally the select committee would expect to see those recommendations incorporated into the drafting, an amended bill would come back before the select committee, and members of the select committee would consider it and look at the various amendments and at what was best and what was not best. The reason this debate will go on for so long is that the Government used its majority on the select committee to shut down that debate and shut down people like Mr Davis, who was a member of that select committee. We now have to debate those things in the Committee of the whole House.

I now move to clause 14 of the Marine and Coastal Area (Takutai Moana) Bill, because it is the essence of this bill. Clause 14 is in Part 2, which is the part we are debating right now. People watching this debate on television or listening on the radio might ask what clause 14 says. Very simply, it states: “The Foreshore and Seabed Act 2004 … is repealed.” The Foreshore and Seabed Act is repealed, and that is why we are here tonight.

I will repeat a claim I made earlier this afternoon, which was that the ACT Party has been entirely consistent on this issue the entire way. We are talking about property rights, access to justice, and access to the courts, and on those things we absolutely support the Māori Party. We do not believe that this bill provides those things, and we do not believe this bill is the right response, but we absolutely support the Māori Party on the repeal of the Foreshore and Seabed Act 2004 and we absolutely stand up for the right of iwi and hapū to go to court. The ACT Party, and, I suspect, the National Opposition at the time, would have been the only members in Parliament who supported Tariana Turia when she first took her lone stand. I make it absolutely clear that our position on this bill is that we want to see that Act repealed.

Having said that, it is important to understand what the decision in the Ngāti Apa case was. The decision was that iwi have the right to go to court. It stated that there might be unextinguished customary rights out there, and that iwi have the right to go to court. I cannot emphasise enough that the Court of Appeal did not state that there were unextinguished customary rights, or that there was customary title; it simply stated that there might be, and that iwi and hapū had the right to go to court.

One of the reasons we object so strongly to this bill and will fight against it so hard is that we believe it makes things so much worse. The Attorney-General constantly calls out “codification, codification”. He says that we have to put rules in legislation so that judges will know what to do. In fact, he is making it much harder for judges. If the Government had simply repealed the Foreshore and Seabed Act 2004 and that was all it had done, then ACT could have supported that. Alternatively, as Mr Parker has suggested, if the Act had been repealed, provision had been made for claims to be taken to the High Court, and access to the common marine and coastal area had been guaranteed, then the ACT Party could have also supported that. But the proposal is to repeal the Act and to put in place a series of tests for the granting of customary title. Those tests go beyond anything that has been provided for in any Commonwealth court in the world. There have been no successful cases in the United Kingdom, Canada, or Australia. It might interest members to know that the only claim that was brought for customary title or ownership of the seabed in Australia was lost.

National has the gall to put it out there that this bill builds on common law, precedent, and decisions that have already been made in other countries around the world. Let me repeat that there has been no legal decision that passes customary title—or ownership, because we are talking about something akin to ownership—to a customary title applicant. The reason the ACT Party opposes this bill so strongly is that the Government is assuming the courts will go and grant customary title over large areas of New Zealand’s coast. It is putting in place tests that, in the eyes of the Government, will reduce what is granted. In fact, the effect will be to substantially increase the areas that may be transferred into customary title, and when I say “transferred into customary title”, I mean that the benefit will be transferred from all New Zealanders to a select iwi.

That brings me to clause 17, “Continued Crown ownership of minerals”. This clause provides that, notwithstanding the case where an applicant group might gain customary title, all nationalised resources, which means petroleum, gold, silver, and uranium, remain the property of the Crown. There are a couple of issues related to that. The first issue is the question of what does not—what has not been nationalised—and clearly one of New Zealand’s major resources that has not been nationalised is iron sands. The Ministry of Economic Development has estimated that this country has iron sands worth some $600 billion to $1,000 billion—that is $1 trillion—off its coast. A large part of that resource lies off the coast of Taranaki and the Waikato. We might say that it belonged to iwi in 1840, but one of the fallacies of this bill is that the common marine and coastal area—

Kia ora anō tātou. I will focus on Part 2 of the Marine and Coastal Area (Takutai Moana) Bill, as members would expect, and I assure you, Mr Chairperson, that I will do so in a manner that does not offend either your rulings or those of the person who was in the seat you currently occupy until very recently.

I want to take us initially to clause 26 in Part 2. There is an interesting irony here. We are being invited to contemplate—and I find it difficult to actually follow how in an administrative sense it is to take place—that by dint of the passage of this legislation, we will have a situation where Crown and sub-national bodies of Government will have their assets, with certain exceptions, regarded as part of the great public space, etc, but there will be an opportunity for local government to seek redress. I think this is one of the reasons why a number of hapū and tangata whenua have been stirred up. The Attorney-General may say they are ill-informed, although I would say they see a double standard here. A number of them will point out to us the original way in which local government and other public bodies acquired either the land for the roads or other interests in land adjoining the seabed and foreshore—the takutai moana, I should say—and say that those original grievances have not been satisfactorily dealt with. They are going to complain—as they already have done to us—that there is a very circuitous process that they are expected to go through, but there seems to be a very straightforward process for the local body organisations to go through. It is probably a case where a well-intentioned intervention has turned into an issue as to whether there is a double standard here.

I note that the Minister of Conservation or his or her delegate—I think that is the term being used—will presumably speak with the authority of the Crown. But clause 26(4) states—and if I am not mistaken, this provision has carried over from Labour’s legislation; the Attorney-General might care to confirm that—that “No court has jurisdiction to hear any claim in respect of any loss suffered by a local authority as a result of the operation of section 18.” If that part was carried over from Labour’s bill, then it could be one of the few redeeming features of the current bill, but that is another matter. As the Minister goes forward, issues of this nature will have to be carefully explained to Māori applicants, because if there is a case where there has been a great deal of pain and confusion, it is in the area of local government.

I just want to go back and direct our attention to clause 11. My colleague David Parker has pointed out that, yes, the nomenclature is different, but when we unpick the interests that are at stake in the new takiwā marea—that is my brief attempt at translating “public space”—we see that the Crown has exclusive authority, and is No. 1 in the allocation of entitlement to occupy space. The Crown will have exclusive authority to set conditions to manage the effects of interaction, activity, use, etc., in the space. The Crown will have enormous, if not exclusive, authority in enjoying the ability to exclude. I accept that the Minister may say that once a title or a customary interest has been recognised there will be a certain level of ability within the hapū or tangata whenua group to exercise enough authority to ensure that they can exclude others from having an injurious effect on the interests that have been restored to them. In my view, it makes a nonsense to suggest that what is being replaced here in terms of Crown title with this broad, vacant kind of conception of the space championed by Mr Dunne—appropriately so—is somehow both novel and something significantly different from the Crown. I accept that it does overcome one issue, which is that in the politics of polarisation the Crown is often seen as being the wrong side of the equation. I invite the Minister to take a call during the course of the evening or tomorrow or, more than likely, early next week and correct either me or David Parker on whether we are being a little too uncharitable or are misunderstanding the actual impact and effect of the law in relation to the way we are describing it.

I go on to point out that clause 30 states: “The Minister of Conservation is the manager of the common marine and coastal area and exercises and performs, in respect of the common marine and coastal area, all those management and administrative powers, duties, and functions provided for by this Act or any other enactment…”. That only goes to show that nothing in this bill significantly changes in terms of the Crown having that exclusive level of authority. It is politics, but at one level it is a symbolic fiction that has been promoted by our colleagues in the Māori Party. They are entitled to do that. It really depends on how well that message is picked up by our people, because the Māori Party has assumed that our people do not have the sophistication to see that they are being hoodwinked. Therein lies one of the sad things about this bill. The Māori Party knows deep down that Hone Harawira’s concerns are largely accurate, but it has taken a punt that iwi and hapū are tired of the whole affair, or it has occurred that they will not get access to advice, or that they will not put in the effort to uncover the fact that this bill is really an exercise in chicanery. This does not deliver the promise. This does not deliver the things that the Māori Party put in its manifesto, but, unfortunately for Labour, we are incapable of stopping this legislation, other than the fact we will remind Māori people how it has not been possible for them to enjoy the success they thought they were going to get through the Māori Party.

I direct the Minister’s attention to clause 39, “Determination of application by Minister”. It is kind of extraordinary—and I should imagine there are some strong commercial applications here—but we are putting Māori applicants through an inordinately circuitous process in order to prove their interests. This clause and a clause slightly earlier deal with the ability of developers to acquire a level of interest in the land that is not being extended to hapū and iwi, not being extended to tangata whenua. Indeed, I direct our attention to clause 39(1)(a), which states: “whether the applicant is to be granted an interest in the reclaimed land and, if so, whether that interest should be a freehold interest…”. That is not what Labour agreed to, and I am quite sure the Minister will agree. The first time round that is not what Labour agreed to. We preferred a leasehold interest. It could be said that a very long-term lease is akin to a freehold interest anyhow, but it is rather bizarre that the legislation, which is being promoted by Tariana Turia and her team as having actually expanded the prospects of Māori securing greater customary interests, will actually provide developers and the private sector with something akin to inalienable title. But the Māori Party is unwilling, through this legislation, to extend it to its own supporters or to iwi Māori.

It is just a small example of how, No. 1, the Māori Party has been inattentive. They have surrendered a great deal of control and stewardship—dare I say the sovereignty of the pen—to the Attorney-General. In many respects that is necessary because he is the most senior legal official in terms of Cabinet’s make-up, but they should not for a moment think that the irony will not escape Māori voters—dare I say Māori applicants—that somehow or other they have to go uphill, down dale, across the takutai moana through a very circuitous range of steps, and at the same time this legislation, crazily enough, makes it arguably easier for large-scale commercial interests to secure a greater level of ownership of reclaimed land. The Minister may say that as the land is being reclaimed, someone else had already lost out prior to that, because it was presumably, if not vacant, dormant space.

I will continue on the definition and the special status of the common marine and coastal area. The definition sounds like general gobbledygook in relation to the notion of the Minister in the chair, the Hon Chris Finlayson, that this is something brand new and that it is safe. It is not too different from how the Foreshore and Seabed Act 2004 defined the area. I think what is more important is that we have now subjected the nation to this notion that the common ground is there and the “commons” as defined by the British was something that was clearly owned by the Crown. At the end of the day, that has been twisted to suggest that nobody owns the common ground: the Māoris do not own it, the Crown does not own it; it just sits up there esoterically and there is no suggestion whatsoever of who should make decisions on it. But, at the end of the day, it comes back to the Crown to define it and to ensure that it is there.

I come to how the Māori Party has suggested that there are limited gains in this bill. The reality is that this bill will not fix the problem. The Māori Party has said that this bill does not settle the issue for it, but at the same time it is trying to claim a great victory. So it would be really interesting to understand where the victory is when really it is just a quick shuffle of the pack. It is like the magician who says: “Now I have the white glove”, and the next minute, “Now I have”—

💬 Hon Shane Jones: The white rabbit.

Hon PAREKURA HOROMIA:—“pulled the white rabbit out of the hat.”

Before this bill received even its first reading the acting co-leader of the Māori Party Te Ururoa Flavell publicly stated that the Māori Party would certainly look at it again and there would be another time for his people to come back and have another go at it in the future. But the Minister has been quite explicit about the finality that he sees in relation to this bill. So those are challenging questions, and I ask the Minister to comment on them. If it were not for the symbolic value of the repeal and the desire to address the Crown ownership aspect of the Act, then an amendment could have been an appropriate solution.

Earlier in the day I commended the Minister for the sequential way the bill listed “whānau”, who generally go to gather and ruku pūpū, and get the delicacies of the sea; then “hapū”, who govern and continue to entertain and ensure that those mana tuku iho rights are covered; and then “iwi”, who generally oversee and keep in mind what is important for them, and, of course the legislation and the Government. So I was fascinated to see in the Minister’s Supplementary Order Paper that he had adeptly moved things around and caused that sequential order to be reversed. Now we have “iwi, hapū, and whānau.” I ask the Minister why he did that, for what reason, what relevance it has in respect of the common marine and coastal area, and what relationship it takes in respect of the functions of mana tuku iho. Mana tuku iho is quite explicit. It is that practice, that being, and that relevance that has been succeeded through the generations by the whānau, the hapū, and the iwi to supervise. I ask whether the reversal of the sequential order is some code that signifies this Government moving anything that is relevant to Māori up the command channel, so it can have its negotiation point being between itself and just iwi, never mind whānau and hapū.

In June Hone Harawira said the proposal represented pandering to rednecks, and I have to suggest that, to my mind, some of the Coastal Coalition’s stuff is just that. Harawira announced he would not be voting for the legislation and left the Māori Party because of it. That is all the theatrics we have seen over the last few days.

I move, That the question be now put.

I will speak on two clauses in Part 2: clause 11, which a couple of my colleagues have already spoken to, and then clause 14. Part 2 deals with the common marine and coastal area, and clause 11—for those people who perhaps have just joined us—looks at the special status of the common marine and coastal area. I point to subclause (2), which is basically the crux of this part. It states that “Neither the Crown nor any other person owns, or is capable of owning, the common marine and coastal area, as in existence from time to time from the commencement of this Part.” That is an extraordinary clause in this legislation. I think it confuses pretty much all of New Zealand, and it certainly confused the many submitters who spoke on the Marine and Coastal Area (Takutai Moana) Bill. The clause is some sort of geographic twilight zone designed for a political purpose, and not really designed both to be durable and to give satisfaction to all sides in trying to understand and come to terms with the property rights inherent in this bill.

If we look at Part 2, for example, we know that many of the submitters felt that this area of land, this no-ownership land, should have actually stayed in the keeping of the Crown. As my colleague David Parker said in his speech, in many ways when we look at the interests, the rights, the obligations, and the authority over this no man’s land, we see that it is the Crown that holds all those rights—and I will go into some of those in a minute. Therefore, the provision gives the pretence and the illusion that we have something that is quite different and something that is workable, when in fact we have something that I do not think has ever existed in law before. As I say, it quite patently will not be durable in the longer term.

Many submitters said, for example, that the common heritage of New Zealanders should be kept in Crown ownership for the benefit of everybody, and in many ways we see that that is exactly what this legislation does when we look at the rights and responsibilities that the Crown will exercise over this particular area of land. On the other hand, a number of iwi and other submitters did not support the provision, because they felt that the non-ownership regime was just symbolic. It was not actually real, at all; it was simply symbolic. I would say that that is exactly the case; all it does is introduce a vagary into our legislation that was not there before.

There are other reasons for not supporting this common marine and coastal area. It applies only to Māori where Māori have an interest, as opposed to any other private title, so in a sense it discriminates against Māori and what Māori are looking for. The proposal is also flawed because there are three exceptions to the no-ownership regime, and this is what I was talking about in terms of its illusory nature: the exclusion of pre-existing freehold titles, the ability of the Crown to deem or declare land in the common marine coastal area to have status under various conservation statutes—in other words, conservation statutes will continue—and the administration of those statutes by the Minister of Conservation. Some submitters also argued that the bill breached the guarantees of exclusive possession under the Treaty of Waitangi, which is another larger and bigger issue that I do not want to go into.

One curious anomaly that arises because of this no-man’s land was brought up by the Dunedin City Council. The council basically said that it was unclear whether the common marine coastal area would in fact be rateable under the Local Government (Rating) Act 2002. That is quite an interesting concept, because if that land were under Crown ownership, of course the Crown would not be liable for rates. But actually this area is not in Crown ownership. The Crown effectively has an interest, as I said before, and the way it controls it is likened to an ownership right, but it certainly will not be the owner. It is possible for the Crown to be considered liable for rates because section 10 of the Local Government (Rating) Act provides that “a ratepayer is the person who is named … in the rating information database and the district valuation roll.” In other words, the Crown could be, in fact, liable for rates on land that is actually under no ownership. This provision, as I say, was a piece of legislative creativity that was set down to try to resolve a political matter. It did not try to address the real issue that was before us.

I will go on to clause 14, which gets to some of the heart of what this bill seeks to do. As the Minister said, clause 14 repeals the 2004 Foreshore and Seabed Act. What is interesting about this is the regulatory impact statement of May last year. It stated: “If it was not for the symbolic value of repeal and a desire to address the Crown ownership aspect of the Act, then amendment could be an appropriate solution …”. In other words, we could have amended the 2004 Act quite easily to give real impact and restore many of the issues that people have been objecting to. That would not have given the political outcome that the Government desired. It certainly was not the political outcome that the Māori Party desired. We now have an enormous bill, with a 75-page Supplementary Order Paper that is being rushed through Parliament without the ability of the Māori Affairs Committee to give it really good solid consideration, and without our having draft legislation to work from and to work studiously through. We now have a situation with legislation that is extraordinarily divisive and that will not be durable; the Prime Minister claimed that durability was his main goal in putting through this legislation.

Moreover, this legislation really underscores just how limited the gains have been for the Māori Party. What exactly has the Māori Party gained from this bill? Its members could have changed the 2004 Act sufficiently to give the impact and the outcome they desired. The reality is that this bill will not fix the problem. The Māori Party has said that the bill does not settle the issue for its members. The party has said that this is only the starting point. In many ways, Hone Harawira’s position in this is the most honest; he has said: “I don’t agree with this.”

Progress reported.

Report adopted.

The House adjourned at 9.55 p.m.