Marine and Coastal Area (Takutai Moana) Bill

Part 3 is a very important part of the Marine and Coastal Area (Takutai Moana) Bill. It sets up the legal rights and interests that give expression to the customary interests in the common marine and coastal area. It has three subparts. Subpart 1 provides for affected iwi and hapū to participate in certain conservation processes, subpart 2 sets out the test for, and rights associated with, protected customary rights, and subpart 3 sets out the test for, and rights associated with, customary marine title. I will be very interested in the debate on subpart 3, because those are very important questions.

It seems to me that, putting aside all the noise and sometimes the imbecility, this legislation really boils down to a couple of key issues. The first—and I think we are all agreed—is whether the Foreshore and Seabed Act 2004 should be repealed. The answer unanimously around this Chamber seems to be yes. The next issue is whether iwi, hapū, and whānau should have the right to go to court. The answer overwhelmingly is yes. So the debate really is all about whether the tests for determining customary title should be codified or should be simply left to the courts. With the greatest of respect to Mr Parker, who I think has made a very positive, substantive contribution to this debate, and I mean that genuinely, he and I are apart on that issue. I firmly believe, as I think Dr Cullen did, that statutory codification of the common law tests does need to be retained. I really think that to wait upon protracted legal arguments while we spend years in the courts determining these issues defeats the purpose of what many are seeking—namely, certainty and equity.

There are a couple of other points that Dr Cullen made in his excellent submission on behalf of the Labour Party to the Boast, Durie, and O’Regan panel. One point was that provisions should be made for the recognition of customary transfer for some period after 1840, and I think of iwi like Ngāti Porou ki Hauraki. He also said—and this leads on to the next point—that some thought needs to be given to just what powers the possession of customary title would involve. He said in his submission that the current provisions relating to a foreshore and seabed reserve form a useful starting point, but that consideration would need to be given to the relationship to other legislation such as the Resource Management Act, and he then pointed everyone in the direction of the Ngāti Porou agreement.

So that is the second big issue that the Committee needs to determine tonight. Do we leave it to the courts to determine not only the tests for customary title but also what customary title involves, or do we go with the formulation in the bill about the rights conferred by customary title? I am in the camp that says we need to set out what customary marine title involves. The Court of Appeal on the Ngāti Apa case was not exactly sure. It said the burden could extend from usufructuary rights to exclusive ownership equivalent to fee simple. There is a big range there, so the issue really becomes whether the rights that are set out in clause 64 are appropriate, or whether there should be something more or something less. In spite of all the noise, I think those are the key issues, and I think it would be in the interests of everyone to have a good, solid, and focused debate on those points.

Now that we have returned from a break and had some kai and whakakī te kōpū, I imagine Mr Tau Henare will resume his more restful self. I want to take up the invitation of the Minister who was in the chair, the Attorney-General, and go straight to clause 64, and indeed the attendant explanatory clauses 65 to 91 in the Marine and Coastal Area (Takutai Moana) Bill. This debate was always going to turn on how one conceives the extent, the character, and the depth of any residual Māori proprietorial interest in the seabed and foreshore.

This debate was rehearsed in the late 1980s, because there used to be a similar provision in the Fisheries Act—section 88(2). It was a savings clause that came from earlier bouts of legislation that gave status to Māori fishing interests. The prevailing view of the Crown at that stage was that these interests, to the extent that they subsisted into the 20th century, were to be found in discrete areas—rocks and reefs. But the Waitangi Tribunal, the High Court, and inevitably our greatest jurist of all, Lord Cooke, found that these rights were dynamic, and that as the circumstances of the people changed, so the character of their rights changed. They were not to be locked or fossilised into the type of economy or the type of society that existed in 1840. Māori asked why it was reasonable for the Crown’s entitlements in the natural estate to be evolutionary and dynamic but the entitlements of Māori as the Treaty partner continued to exist as if it is still 1840. That has been one of the deep, unresolved issues over the last 25 to 30 years of the Treaty-based renaissance.

That is what the Māori Land Court was faced with in the papatipu investigations. In those investigations the Māori Land Court tried to determine, firstly, how powerful the rights were that a given community had in the landscape. It looked at such things as trapping, occupation, fishing, harvesting of trees, and issues to do with general reliance on that part of the economy. From there it framed what would be the nature and extent of, largely speaking, a Māori collective property right in their natural environment. This is in many respects what we are now asking the High Court to do. Last night I asked whether the High Court will have the necessary expertise in terms of additional resources and rules. I was assured by the Minister, as I recall, that that work is under way, it has already happened, etc.

Hone Harawira made a very useful and accurate point about the extent to which the actual rights of the successful applicants will be far short when we consider that if there is a residual proprietorial interest in a given part of the takutai moana, much of it has been hollowed out through accommodated activities, and the override entitlement associated with accommodated activities. I think a lot of applicants will find that what they have is a very poor and, dare I say it, pale imitation of what they believe they are getting back, because much has been carved out in order to satisfy other stakeholders. There lies a deep problem if we use exclusively a political process, when people probably need to have these things teased out in court if they do not think the political process is the solution. The political process will be dominated from time to time by colleagues of ours from the ACT Party, and in other times by far more reasonable characters, who will inevitably come from this side of the Chamber. The meaning of “deemed accommodated activities” and accommodated associations, etc., will crimp those solutions.

The Minister is asking us whether the rights we are discussing are static or dynamic. If the society that modern Māori find themselves in has nothing to do with what subsisted in the 1840s or 1850s, how do we give expression to those rights? What institutional forms should they take? Can a codified approach, which in my view is really designed to prevent wild and unmanageable litigation, give a better result than if we leave the issue ill-defined and invite the Waitangi Tribunal to be involved—no doubt having been unfortunately dragooned into action in some manner or form—or if we take it back to the courts? When we use the expression “the threshold test”, that is really what we are talking about.

The answer, unfortunately, has already been given in this bill. There may be a narrow range of minerals where there is perceived to be a prevailing Māori ownership interest, but other minerals have been carved out. The difficulty and the irreconcilable tension is that we may give some tangata whenua group a right and a title, and they may have the ability to block someone wanting to engage in economic development activities in their area, but at the end of the day the Minister of Conservation will have the overarching yea or nay power. That is why the Māori Party, although it agrees this bill is an improvement, has overlooked the fact that only minor and modest authority is attached to those tangata whenua groups. At the end of the day the power to allocate, to administer, and, indeed, to even regulate the takutai moana titleholders will rest with the Minister of Conservation. Is that necessarily a bad thing? Well, someone has to be in power and in control, but to suggest that it will provide a basis to restore the rights that romantically exist in the minds of our friends from the Māori Party is wrong. It is also quite misleading to continue to leave our people with the impression that they will be satisfied by the passage of this legislation.

I will go to clause 61. All of this will be a debate about what is justiciable: what factors a judge or Minister can take into account when we form the final shape, depth, and value of those rights. Applicants and statutory decision-makers will be able to take into account whether there has been a non-commercial fishing interest, and I would caution anyone against reopening that debate, and I hope this legislation goes nowhere near to doing that. A lot of the customary fishing rights depend on access, and it will not so much be about whether applicant groups have enjoyed unfettered access to the land abutting the takutai moana, but whether any of their members have also had that right. As day follows night, we can rest assured that there is a vast difference between the applicant tangata whenua group and its members. Without a doubt, a number of those members will have certain land rights, but those organisations and members will not be congruent with the group that is making the application. Many of those groups will be political in character; they will not be specific or identifiable landowners. Indeed they will create—through, I think, unwise drafting—situations not unlike the current Maungatautari dispute, which involves private individual Māori landowners and individuals in a hapū claimant group. The drafting is unwise—the Minister has gone now, and we are unlikely to learn anything from the current Minister in the chair, the Minister of Police.

I congratulate the prior speaker, Shane Jones, because I thought that was a very erudite contribution to the debate as to the difficulty Parliament faces in respect of these issues. I want to say why I think this Parliament is missing an opportunity to properly settle this issue. The Labour Party, through the Hon Dr Michael Cullen, made a submission to the ministerial review panel that said, amongst other things, that we should settle this issue, and that an appropriate settlement could include codification of the common law tests. At the time a very good opinion piece by John Armstrong was published in the New Zealand Herald. He said this was a difficult issue for New Zealand, and that Parliament had had one crack at it. At that time we had the National Party being, I would say, irresponsible, rarking up race relations and making it an almost impossible issue to settle properly at the time. We also had some pretty intemperate comments at the other end of the spectrum.

By the time of the ministerial review panel, we had at least the major parties in Parliament trying to find a way forward that was fair to minority interests, and that the country could live with. On that basis Labour said we supported statutory codification of the tests. At the time John Armstrong made the point that if we looked at the spectrum of opinion when the Foreshore and Seabed Act was passed we had the Māori Party, or the precursors to the Māori Party, saying the legislation was far too tough, Labour, closer to the Māori Party precursors than to the National, in the middle, and we had National at another extreme of the debate, saying that the legislation was far too permissive in terms of its recognition of unextinguished customary rights. John Armstrong made the point that since that time National had moved very substantially. It had moved past its position at the time of the Foreshore and Seabed Act to say it wanted something that restored to Māori, for example, the right to go to court. National moved to that position, and we moved to that point too, and we were willing to move a bit further than National was willing to move.

All that it would have taken to settle this issue was an agreement from the Māori Party to move from where it sat to where National had got to, in respect of agreeing that the solution proposed by National was a fair settlement of the issue. If we had that, it may well be that this Parliament would now be expressing unity on this issue, and that would be good for our country. Unfortunately, I have to say that the Māori Party and National have failed in their duty to the country. They said they would settle this issue. Rather than John Key ringing up the Māori Party and saying “Hey, this is the deal, can you live with it?”, he has not done that.

I do not want to be paternalistic or maternalistic towards the Māori Party, but rather than the Māori Party offering up to say it accepted that this was a fair settlement of the issue, the Māori Party said the opposite. It said this was a first step. It said that at the level of the Hon Tariana Turia, and the Hon Dr Pita Sharples said the same thing. Those are the co-leaders of the Māori Party, and their senior whip said exactly the same thing. He also said this bill was not a settlement. On that basis, National asked us to accept the pretence that this was a settlement, and that was where we bailed, because we said we would not put up with that fiction—because it is a fiction, for the reasons I have outlined. On that basis we got to the point where we said Parliament had had two cracks at fixing it, and Parliament could not fix it.

It is obvious Parliament cannot fix what is the appropriate threshold test to the satisfaction of the range of interests involved. As a consequence, we say Part 3, which has the threshold test in it, is wrong. We say we ought not to be pretending that this settles it, and we ought to let these issues play out over time through the courts. I heard the Minister in charge of the bill, the Hon Christopher Finlayson, say that would be a bad thing, because it would take time and it would create uncertainty. The first thing I would say is that presumes this legislation creates certainty. How can that be, when the Māori Party and various other sectors in society for different reasons are saying it does not settle the issue? We are kidding ourselves if we think that by saying it is settled, it will be. The reality is that it is not. So that is the first problem with the Attorney-General’s argument.

The second problem with his arguments in favour of codification, given where we have got to, relates to the suggestion that somehow this will be better because it is simpler and therefore more cost-effective. This legislation enables agreements to be progressed through legislation in Parliament. According to the Parliamentary Library—I asked it to give me some advice on this—the average cost of a piece of legislation in 2010, including the full costs of running Parliament, was $2.8 million per piece of legislation.

💬 Hon Member: Can you say that again.

It was $2.8 million per piece of legislation. I am not saying that that is the full cost of every piece of legislation, because the marginal cost of legislation is probably not $2.8 million, but I tell members that it is a lot, lot more than the cost of a court action. A court action for people to explore their customary interests and for the court to determine them does not cost millions of dollars; a piece of legislation does. So the idea that through this new process the Government is introducing we will have a more cost-effective approach is just wrong. It would be far more cost-effective for taxpayers to fund appropriate contributions to legal aid than it would be to proceed by way of Acts of Parliament in respect of these agreements that are going to come forward.

The codification of these tests is highly problematic. A lot of people in New Zealand will be left dissatisfied. People such as Hone Harawira and the Māori Party say this codification of the test acts as a confiscation of rights. We can never win that argument in this Parliament, because the people who believe that never had the ability to test that as we are removing from the jurisdiction of the court their ability to test it. Through codification we are putting the issue as to what should be the proper threshold test beyond the jurisdiction of the court, and therefore the sense of injustice from some of the Māori Party’s supporters will always be there. Conversely, the people at the other end of the debate who say the test is far too lax—and they might be right—are also prevented from having their day in court to argue what they think.

Having had two attempts in this Parliament to settle this matter we have not achieved it, and it is time to acknowledge that reality. There is an amendment in my name to that effect. Let us put this back to the courts. The Māori Party could vote for that amendment tonight and that would be the outcome. That is what they say they wanted originally. The Greens support that, Progressive supports that, the ACT Party supports that, and I think that Hone Harawira would even support it going back to the courts. All it takes is for the Māori Party or, indeed, a few people in National—and they are under pressure—if they were not whipped, to vote in favour of that amendment and we could have that solution in this Chamber tonight.

We could have this issue settled fairly, setting out a process for everyone to have their day in court. The framework would be settled, taxpayers would be better off, Māori interests would feel justly treated, and other interests who feel aggrieved by this legislation would feel justly treated. We tested that at the Māori Affairs Committee across a wide range of submitters, and although it is true that it was not universally accepted, the vast majority of people thought it was the way forward. That is why Labour does not support this most crucial part of the bill, Part 3, in its current form. That is why we have an amendment to that effect.

Tēnā koutou te Whare. The Green Party has a strong interest in both the detail and the intent of the Marine and Coastal Area (Takutai Moana) Bill in all parts, but especially in Part 3. We agree with a number of comments about the right to go to court, although having spent a bit of time in some courts as a layperson, I have a very unromantic view of a court where the tests are too difficult for people to pass.

Of all the Green MPs, Metiria Turei has lived the issue through the parliamentary process in depth and detail. However, if we do not obsess over the detail but actually look at the intent of the bill, we realise that all of us in this country have a contribution to make. People out there are emailing me and using Facebook all day saying: “What on earth are these people in Parliament talking about? Can you please make this comprehensible.” People do not understand why the debate has become so esoteric. I will attempt to be slightly less esoteric, which should be quite easy for me as a non-lawyer.

Part 3 is focused on the rights and tests, and of particular importance is the definition of “customary marine title”. This does not really sound like a tikanga-based definition, but it definitely has a strong marine flavour and many fishhooks. One of the most fundamental issues is the test for a marine customary title. Clause 60(1)(b) requires tangata whenua to show that they have “exclusively used and occupied the specified area from 1840 to the present day without substantial interruption.” It is necessary to ask who benefits from the inclusion of that provision. In my limited experience, a limited list of hapū—perhaps Te Tairāwhiti—may be able to pass this test, but I ask who else and where. And even within that rohe, where I was privileged to live for 8 years, I can think of numerous examples where mana whenua hapū simply could not pass that test, as a result of colonisation.

I want to cite two examples where the mana whenua hapū who live on the coast cannot have confidence in this test. Would the people of Rongomaiwahine and Ōpoutama who lost by various means their access to the foreshore to the local authority, which then sold it to a camping ground that then sold it to a developer to make a wealthy subdivision right on the foreshore, be able to claim unbroken title without substantial interruption? They probably would not. Nevertheless it is they who maintain passionate kaitiakitanga and responsibility for that part of the coast, and welcome people to come as manuhiri and have holidays there. But it is they who were marginalised from the decision making, continue to be marginalised, and may not be able to pass the test.

Then there is the interesting saga of Te Kurī o Paoa—Young Nicks Head—and the customary relationships of mana whenua to that piece of coast where tangata whenua first saw Young Nick on the bowsprit of the Endeavour. Ngāi Tamanuhiri had uninterrupted access until the land was alienated and became a farm owned by a local family, who then put the maunga on the market. The marine area around Te Kurī o Paoa was put at a price that the tangata whenua could not afford to buy back. So Te Kurī o Paoa was bought by an American stockbroker called John Griffin, who offered the family a lot more money. The possibility of regaining land title to their sacred maunga and their customary marine coastal rights was lost. If the stockbroker is in the mood or chooses to invite them, they may have access to their coastal and marine area. That is not a customary right and that is not an exercise in justice. That ancestral relationship is substantially interrupted, and therefore I ask how they will pass the test. The right in both cases to be the decision maker is seriously undermined by clause 60(1)(b).

It may be, however, that proving that a protected customary right exists is a lot simpler than that, because, for example, gathering kai moana or launching waka are activities that can be maintained without substantial interruption, despite colonisation. So some people in the coastal area can go and gather kai even though they have lost access, but they cannot necessarily exercise any decision making over their ancestral whenua or over the foreshore and seabed in their area.

It is the Green Party’s view that this test has been deliberately set up to create a failure, even in places like Te Tai Rāwhiti, where some believe they will have no problem in proving their situation. The Green Party believes that the tests in the legislation have been chosen by the Government because they meet the Government’s political objective to make the process as difficult as possible for hapū and iwi.

I rise to speak to Part 3 of the Marine and Coastal Area (Takutai Moana) Bill, and I recognise that I do not have the legal training that the Minister, Chris Finlayson, who is sponsoring the bill has. So I confess readily, as a humble arts graduate, that I need to go back to principles that simply make sense to me. I find Part 3 of this legislation quite challenging, and I think that is because it is genuinely difficult. I do not think I am as illiterate as other members may class me as being, but it seems to me that if we go back to what this legislation is about, we get to the heart of it in Part 3.

In Subpart 1 we have the participation and conservation processes in the common marine and coastal area, in Subpart 2 we have protected customary rights, and in Subpart 3 we have the customary marine title. I will go back to basics and say right from the start of the debate on this part that Labour’s basic position has been, firstly, to guarantee public access; secondly, to recognise Māori customary rights; and, thirdly, to allow Māori to take all aspects of their claims to the court. Those three things are simple principles that I can understand and I can describe to other people. That is always the test for me—whether I can describe what the legislation means to other people. I have worked quite hard at this.

I will start at perhaps the most contentious bit, and that is the customary marine title in Subpart 3. Some of the earlier subparts of this section of the legislation are reasonably OK. For example, there is now widespread agreement that rights of free public access to the foreshore and seabed and so on are not at legal risk, and the prevention of the alienation of customary interest is widely supported. Therefore, I will not traverse those things so much. But when we get to this bit in Subpart 3, then suddenly I begin to get suspicious, because what we have here is the meaning of customary marine title and an attempt at codification of it, to which the Minister referred in his opening remarks.

My experience of codification in past lives has been that it is an extremely complex, difficult, and exhausting process. The codification of a right often requires a level of detail that is needed to address every issue that one can reasonably expect to arise where a right might be applied or might be sought to be applied. Codification is a very complicated process, but this effort in Subpart 3 puzzles me most. Our position is that we are happy to lay out general principles and have the court determine, on application, how those principles might be applied in determining whether customary marine title exists. Two things are important in clause 60(1) in Subpart 3. It states: “Customary marine title exists in a particular part of the common marine and coastal area if the applicant group—(a) holds the specified area in accordance with tikanga; and (b) has exclusively used and occupied the specified area from 1840 to the present day without substantial interruption.” That is problematic for many iwi. It is extremely difficult for iwi to prove, and it is extremely difficult for—

💬 Hon Dr Wayne Mapp: No, it’s not difficult at all. It’s one of the easiest things to prove.

Well, the ones I have talked to who are represented by the Iwi Leadership Group, which is most of them, said that this threshold is unfair.

The issue is that the Māori Party was founded on the basis of what it considered to be flawed legislation passed by our Government in the white heat of the racist opposition that the National Party had been drumming up over a number of years, and Don Brash owns his part—

💬 Hon Members: Point of order—

The CHAIRPERSON (Eric Roy): I think I know what the point of order is, and I have just been reflecting on the way in which the member used a certain word. The test is whether the Committee itself is offended by a word like this one. With regard to the context in which the member used it, I know that she did not personalise it, but it does bring offence to the Committee. I ask the member to desist.

Thank you, Mr Chairperson; I will desist. In the white heat that the National Party generated at the time of the passage of our legislation, the Māori Party said we were taking away the right to go to court. The Labour Party has said since then—and I said it yesterday in this very debate—that we got that wrong, and we have apologised for that. Now this codification part of this legislation is trying to do much the same thing. I go back to simple principles. The concern that we in the Labour Party have is that this provision appears opaque—it is not transparent. I would rather provide guidelines and principles in legislation in this House and have the courts—people whom the Minister in the chair, the Hon Judith Collins, trained with in her previous occupation, and who are now judges—look at this and see how to apply it. Let us build up some case law and practice in this area.

The independence of the judiciary is extremely important to our democracy, and for the life of me I cannot understand why the Māori Party finds this bill fit to support when it continues the denial of access to the courts that provoked the establishment of that party. So this is a real puzzle to me: that the Māori Party, on whose votes this legislation depends, are violently opposed to a restriction of access to the courts in 2004, yet come 2011, when this Parliament is having a second go at addressing this issue in the interests of all New Zealanders, it thinks it is now OK to have something codified in legislation and not able to be taken to the courts for testing.

I will just comment on what Maryan Street had to say. She summarised part of the basis of the ACT Party’s objection to the Marine and Coastal Area (Takutai Moana) Bill. We believe that iwi and hapū should have access to courts. We do not believe that the law should be codified in the way that it has been, which denies the right of iwi and hapū to go to court and to fight for their common law rights.

This is a debate on Part 3 of the bill. I will focus in particular on the clauses relating to customary title, which have been identified by the Hon Christopher Finlayson: clauses 60, 61, and 64. I will refer also to mana tuku iho.

Before I do that I feel as though I need to respond to some of the comments that Hone Harawira made earlier this afternoon. I had hoped to make this contribution during the debate on the last part, before the vote was taken, but I was prevented from doing that. But the points I will make are still just as relevant. The ACT Party totally agrees with Hone Harawira that this bill needs to be opposed, and opposed at every step. We will be fighting to the bitter end.

One of the points we make is in respect of what Hone said this afternoon: that this was a confiscation of Māori rights. I think Hone and some of his supporters are of the view that iwi and hapū have customary title to, have ownership of, the entire seabed and foreshore out to the end of the territorial sea, to the extent of the 12-mile limit. It is important to come back to the decision in the Ngāti Apa case. Once again, the Attorney-General quoted that case this afternoon. The view that Māori own the seabed and foreshore is a common view amongst some Māori. It is interesting that a hīkoi is marching to Wellington as we speak. But I suggest that the reason the hīkoi has been formed and is marching on this occasion is a lot different from what it was in 2004. In 2004 the hīkoi was marching for access to the courts; it was acting for access to the courts and for justice. My colleague the Hon Rodney Hide joined that hīkoi when it arrived in Wellington.

I will comment on some of the observations made by Dame Sian Elias, the Chief Justice. She said in the Ngāti Apa case: “This appeal deals only with the initial question of whether the Maori Land Court can enter into the substantive inquiry.” The appeal dealt only with whether the issue could legally go before the Māori Land Court. It did not deal with whether iwi and hapū have customary title. She went on to say: “The significance of the determinations this Court is asked to make should not be exaggerated. The outcome of the appeal cannot establish that there is Maori customary land below the high water mark.” There you have it. She said that the outcome of the Ngāti Apa case cannot be exaggerated. It did not establish that there was Māori customary land below the high-water mark.

Ever since that judgment, despite her observations that it did not determine whether there was Māori customary land below the high-water mark, a group of New Zealanders has believed that is the case—that Māori own the seabed and foreshore. In this case we have seen the National Government take fright, as the Labour Government took fright in 2004 with the passing of the Foreshore and Seabed Act. Both National and Labour have sought to restrict the rights of iwi and hapū to go to court to claim their customary title, I guess under a belief that they would win large amounts of New Zealand.

In this case they have set a codification—a series of tests—that the Attorney-General says will lead to certainty and to equity. I will explain in my call why that will do exactly the opposite, why it will not lead to certainty, and why it will not lead to equity. Interestingly, Dame Sian Elias goes on to say: “Nor will the appeal resolve questions of the nature of any property interest in land (whether it approximates a fee simple interest or whether it is lesser property).”

I will focus most of my remaining time on the issue of customary title, but before doing so I will comment very briefly on the concept of mana tuku iho. Essentially, mana tuku iho creates a universal right of consultation. Pita Sharples and Tariana Turia wrote in the New Zealand Herald last week: “The new bill acknowledges that ALL coastal iwi have connections to the coast. Their mana tuku iho (inherent authority) entitles them to protect their wāhi tapu and to be consulted on conservation and resource-management issues.” One of the reasons this bill is a racist bill is that that right is given only to coastal iwi. What about other people living on the coast who are not iwi? What about non-Māori New Zealanders who also live on the coast, whose families have lived on the coast for over 100 years? They do not have the same rights as provided for in this bill. If that is not a racist provision, I do not know what is.

The issue comes to the tests of marine title and the rights that derive from it. National has perpetuated the myth, the fiction, that only very small areas of New Zealand will be opened up to claims of customary title. Its members have said in their publications, for example, that “The test”—for customary title—“requires continuous, exclusive use and occupation of an area since 1840. As you can imagine, that is not an easy test to meet.” Well, it is not an easy test to meet, but that is not actually the test. One does not actually have to prove continuous and exclusive occupation; one has to prove exclusive and continuous occupation without substantial interruption. What is the effect of that proviso? We do not know, Christopher Finlayson does not know, and the Court of Appeal does not know. To suggest that this bill will lead to certainty is a load of hogwash.

If when I look at the Minister’s Supplementary Order Paper 207, I see the addition of new clause 61(2A), which states: “The use at any time, by persons who are not members of an applicant group, of a specified area of the common marine and coastal area for fishing or navigation does not, of itself, preclude the applicant group from establishing the existence of customary marine title.” So iwi can make a claim for customary title, iwi can say they have occupied the land exclusively, but the fact that other people come and fish, boat, and navigate through that land does not preclude iwi from making a claim, it does not preclude the court from awarding iwi customary title, and it does not preclude the Government from entering into an agreement to grant customary title.

To perpetuate the fiction, the myth, and to mislead New Zealanders that the right to apply for customary title will apply to only a very small part of New Zealand is, I think, deceptive in the extreme. I think National is relying on the fact that New Zealanders are not taking an interest in this issue, but I think in time that they will, and they will take an interest in ever-bigger numbers.

I turn to clause 64, and to the benefits that flow from being granted customary marine title. The first thing we know is that with a grant of customary marine title comes the ownership of minerals, other than those deemed to be owned by the Crown under the Crown Minerals Act: basically, all minerals and resources other than oil, gold, silver, and natural resources. That right is granted specifically in this bill out to the 12-mile limit—out to the limits of the territorial sea. Well, in 1840 the limit of the territorial sea was recognised as being 3 miles, so in this bill we are setting ourselves up to transfer ownership of resources from all New Zealanders to a small, select group of iwi who can meet these tests. The Government suggests that that is equity, but how does that protect the rights of all New Zealanders?

Let me go on. There is also the right to protect wāhi tapu. I would be the first to recognise Māori custom; I would be the first to recognise sacred areas. But New Zealanders probably do not appreciate that when a claim is lodged for customary title, areas can be designated as wāhi tapu. They are designated as sacred, and that gives iwi the right, if customary title is subsequently granted, to say that is a sacred area and they do not want other New Zealanders to enter.

I will start off by disagreeing with my colleague Nanaia Mahuta, when she said the Māori Party had trouble in justifying the Marine and Coastal Area (Takutai Moana) Bill. That party does not have trouble in justifying this bill; it is absolutely proud of it. In the hīkoi of 2004 people marched against the Foreshore and Seabed Bill. But they are not being led on a hīkoi with this bill; they are being led down the garden path, because the legislation that they have ended up with is little different from the 2004 Act.

I take issue with what the Hon John Boscawen said—that in 1840 the territorial limit was 3 miles out to sea. Tau Henare, for all of his bluster, raised a good point in his interjection when he asked who had set that 3-mile limit. It certainly was not Māori. We are talking here about Māori customary rights and so on, but the Hon John Boscawen is referring to a totally European concept, and in 1840 Māori were in charge of the country.

Moving on to the bill, and to the definitions there of hapū, I tell the Committee that the bill originally stated in clause 49(2) that “hapū means a hapū listed in the constitutional documents of an iwi or as advised to the Director-General by the iwi”. In the select committee process in the Maori Affairs Committee a number of hapū were concerned about that, because their hapū were not necessarily listed in the constitutional documents of the iwi. The Māhurehure tribe in Waimā in the Hokianga were a tribe who were concerned that they might be missed out. Instead, the clause has now been changed on Supplementary Order Paper 207 in the name of the Hon Christopher Finlayson—and I believe rightly so. Clause 49(1) on that Supplementary Order Paper states: “In this section and sections 50 to 52, affected iwi, hapū, or whānau means iwi, hapū, or whānau that exercise kaitiakitanga in a part of the common marine and coastal area where a conservation process is being considered.” Māhurehure are an inland iwi, but the Waimā River goes right through to the Hokianga Harbour, and I tell the Committee that they will be glad now that they will be included, most definitely, in this provision.

Clause 53 describes the meaning of “protected customary rights”, and we have heard already that under subclause (1) “A protected customary right is a right that—(a) has been exercised since 1840; and (b) continues to be exercised in a particular part of the common marine and coastal area in accordance with tikanga by the applicant group, whether it continues to be exercised in exactly the same or a similar way, or evolves over time;”. The bill does not actually give any examples of what a customary right may be, other than the collection of hāngi stones, I believe, and the launching of waka. From what I can read, there is no real description of what such a right might be, and I think that just tells us, as Māori, that we have the right to go and do what we have always done—for example, gather pipis, go diving for kinas, pāuas, scallops, or whatever else. To me, this whole part about protected customary rights really just says Māori have the right to go and do what we have always done on the foreshore and seabed, anyway. To me, it is almost extraneous to the whole issue.

Then we move on to clause 58, “Controls on exercise of protected customary rights”. Basically, it says at the end of subclause (1) that “the Minister may impose controls, including any terms, conditions, or restrictions that the Minister thinks fit, on the exercise of the [customary] rights.” But from the way that I read that, that means that tino rangatiratanga again ends up in the hands of the Minister. I wonder whether that is what the Māori Party set out to achieve with its support of this bill: that the Minister, at the end of the day, has the final say about the exercising of customary rights by Māori. I am pretty sure that when the members who are now Māori Party MPs led the hīkoi back in 2004, that is not what they were marching for—not just to have the Minister, at the end of the day, have the final say on the exercise of those customary rights.

There were submitters to the select committee who asked, when it came down to customary marine title and the exclusivity side of it, what will happen when they, through their generosity as a hapū or an iwi, have allowed people to go over their land to use the beach. Angeline Greensill, who was a candidate for the Māori Party in Tainui, said there was an area of land in Raglan that her tribe had opened up, out of generosity. It had started out as a bit of a track, and then I think the local council came along and made the road a bit tidier. Members of the community were able, through the tribe’s generosity, to cross over their tribal land to go and use the beach. But now this exclusivity clause means that because of their generosity, that foreshore and seabed land was not exclusively used by Māori, so they will be disadvantaged through their own generosity.

In a similar vein, in Blenheim the select committee heard a hapū and iwi there ask about what happens when the Crown has bulldozed a road across their land and through to an area that would otherwise be totally isolated. Through an act, basically of confiscation, by the Crown, their foreshore and seabed has been opened up, and all and sundry can go there and make use of it. So is it fair to them that through an act of the Crown—a confiscation, for want of a better word—the seabed and foreshore has not been exclusively used by the hapū and tribe? They have been disadvantaged in that aspect.

There is a whole concept about wāhi tapu. There are wāhi tapu areas and wāhi tapu. I spoke last night about the Mātaatua waka, which is our ancestral waka in Tākou Bay. That site, I consider, is a wāhi tapu, but it is not necessarily in an area with customary marine title.

💬 Paul Quinn: Just give our waka back—is that what they say?

Yes—Tūhoe say they want their waka back, and we say that if their karakia are strong enough to refloat the Mātaatua waka, then they should come and get it. But the point of the matter is that the Mātaatua waka may not necessarily be resting in an area with customary marine title, so does that mean that that waka could still be designated as a wāhi tapu when it will not necessarily be in a customary marine title area? That is just a question I have about that.

I turn now to clause 62, “Customary transfers”. Subclause (3) states that “customary transfer means a transfer of a customary interest in a specified part of the common marine and coastal area after 1840 if—(a) the transfer was—(i) between or among members of the applicant group;”. I am not sure of the purpose of that. I am not sure why an applicant group would then transfer their own customary title area amongst themselves. Let us say that was possible, and let us say that Ngāpuhi, which spans from the east coast of Northland through to the west coast, was an applicant group. Would that mean that a customary area on the east coast could actually be transferred to our whanaunga on the west coast? And how would that actually happen? The other question is whether those transfers can be made at a cost. Could a customary interest or customary rights actually be transferred at a cost? If so, it would be like selling off the customary rights, albeit to another group within one’s own applicant group.

I move, That the question be now put.

I thought I would take up some cutting remarks made in relation to the Marine and Coastal Area (Takutai Moana) Bill. Certainly, as Dr Cullen said, and as I have heard the Minister in the chair, the Attorney-General, say earlier in the debate, Labour did want to get to a better place, and we can concede in all humility that maybe we could have done better in our time. But we have got to the stage now where we need to confront those issues that are relevant to taking this issue forward, and Part 3 suggests a whole lot of matters and issues that need to be clarified.

It has worried me at times that some people have let rip with extremes, and have tested people’s minds and manners by making extreme statements. Some people say that this bill is about Alice-in-Wonderland practices, that Māori do not know anything about customary rights, and that they would have had to hold their noses underwater. They are the sorts of outrageous statements we can do without.

I also get a bit perturbed. Sitting outside in front of the hīkoi that day is etched on my mind, especially as some of my whānau were on the other side. The challenges that were tossed at Labour in relation to our denying Māori access to court are now being fudged. The Māori Party members who at that time professed that Labour’s Foreshore and Seabed Bill was totally wrong because of that denial of access are now supporting the same sort of stance. I am really interested in the fact that they are saying this bill is not National’s bill but theirs and they are proud of it. I really wonder at the end of the day what there is to be proud about in relation to this bill, in the sense of where it is at the moment.

The Minister’s Supplementary Order Papers have been very interesting. He has been telling tales on me to my uncle Api on what I am saying, and whatever else. He is a real nark at times, and I take umbrage at that, too.

The purpose of Part 3 is to set out the full extent—

💬 Hon Tau Henare: But you support Te Rōpū Ripa. Come on! You support Mallard.

What I did not support was the 500-page report being rushed through the Māori Affairs Committee by its chair, allowing no legal advice, or legal content, or direction by members. That is what I object to.

The purpose of Subpart 1 of Part 3 is in relation to participation in conservation processes. I say to the Minister that one of the issues in Part 3 that really does concern me is the mixture and the composition of the decision making. There seems to be an illogical matrix of points of decision. The Minister of Conservation, the Minister for the Environment, the Māoris sometimes, the court authorities, and some of the ideology of the Resource Management Act are crammed together. I hope that by the time we get to the end of the debate we can decipher some of that, and that the bill is more specific than Part 3 is starting to be.

There are a whole lot of issues. In relation to Subpart 2, “Protected customary rights”, those rights are described in clause 53 as rights that have been exercised since 1840. I would like to know how we are going to exercise that definition. Is it about Māori kids running and jumping in the water like their ancestors did in 1840, and having continuously swum there, dived underneath to see what is in the water, and gathered food there? Is that enough? Clause 53(1)(b) states that a protected customary right is a right that “continues to be exercised in a particular part of the common marine and coastal area in accordance with tikanga by the applicant group,”, and clause 53(1)(c) states that it “is not extinguished as a matter of law.” All through the provisions, including in Part 3, there is a real push about tikanga. It is interesting, as we read the parts, to see how tikanga is defined and who defines it. Some clauses of Part 3 suggest that tikanga can be defined by the applicant group, by the hapū or the iwi involved, or it can be determined by the sanction of the Director-General of Conservation, and so on and so forth.

To push that further, if we look at clause 53(3) we see that it states that “An applicant group”—[Interruption] Mr Chair!

The CHAIRPERSON (Eric Roy): You want another call?

Yes, thanks. Another two, if you do not mind. Is that all right?

The CHAIRPERSON (Eric Roy): I will judge that. One at a time.

It states that “An applicant group does not need to have an interest in land in or abutting the specified part of the common marine and coastal area in order to establish protected customary rights.” What my learned colleague from Te Tai Tokerau Kelvin Davis said was interesting. There are learned members from Te Tai Tokerau here who know where their waka came from and have a sincere sense of belonging to Te Tai Tokerau. I mihi to him. [Interruption] He is not like Paul Quinn sitting in that far-away land over there, and he is not like Tau Henare over there, who rushed the report through the Māori Affairs Committee. My mokopuna are from Te Tai Tokerau, and I am thankful that there are decent members of this House from Te Tai Tokerau. Kelvin Davis knows where his waka came from; he is not inventing it like that member over there.

If we look at clause 53(3) we see that it states that “An applicant group does not need to have an interest in land in or abutting”—

The CHAIRPERSON (Eric Roy): Can I just caution the member. The nature of the exchange that has gone on was such that the member was implying that some people in this Chamber are not decent. All members are honourable members.

I stand corrected, Mr Chair. Thank you. I want to tell members about the waka Mātaatua. The member with his fist raised in the air believes that the waka Mātaatua stayed in Tai Tokerau—that it lived there. The member on his left—

💬 Hon Simon Power: Where’s this in the bill?

This is very important to Part 3, I say to Simon Power. I want him to listen to this. When we define tikanga and we define aspirations, and we determine what is right or wrong in Māoridom, we have to understand that there may be four or five different versions and they are all right. How will the court manage that? The bloke up there on the left would say that the Mātaatua waka rested in Tai Tokerau, in the Hokianga, and sits there. The bloke on his left would say that, no, it rests down by Whakatāne or Ōpōtiki. They are both right. How does one recognise that?

I want to get on to this land business in the sense of supporting the test. The contiguousness that was a really strong reference in the 2004 legislation is, I hope, still important, because there is some shifty shaking in this bill. It is saying that the customary right does not necessarily have to be where one is living, by the seashore or thereabouts. It can be somewhere else. But one of the real key drivers in relation to recognising or simplifying people’s rights and tuku iho is the contiguousness of the dry land that they may have lived on or controlled over generations. What they have done on that land is a different issue. They have inherited it, and they have inherited it for one reason: through their whakapapa, or their genealogical tie. How is the court or anybody else going to test that? The strength to recognise a lot of that tuku iho, or those rights, is in that contiguousness, if those people have had that whenua.

Clause 53(1) states that a protected customary right is a right exercised in accordance with tikanga. I want to make the point that tikanga takes all sorts of forms and shapes, and that there are alignments, like the contiguousness of land to the right to the water that is trying to be defined here. So those iwi who have a lot of land there should be recognised for that.

The other thing is that clause 54(3) states that a protected customary rights order or an agreement that applies to the customary rights group can be subject to a control imposed by the Minister of Conservation under section 59. Clause 54(4) states: “A protected customary rights group may do any of the following: (a) delegate the rights conferred by a protected customary rights order or an agreement in accordance with tikanga:”. I am not too sure what that means. Does it mean where the Mātaatua waka might have gone or could be? And I say that with a whole lot of respect. Clause 54(4)(b) states: “transfer a protected customary rights order or an agreement in accordance with tikanga:”. Again, I ask the Minister who is defining tikanga in relation to those limitations, and how. Clause 56, “Limitations on exercise of protected customary rights”, states: “(1) A protected customary right does not include any right or title over the part of the common marine and coastal area where the protected customary right is exercised,”. So we have this no-people’s park, which nobody owns but everybody reckons that is OK, and then the bill is saying that nobody can define or determine—

Tēnā koe, Mr Chairman. Tēnā koutou katoa e te Whare. As I turn to Part 3 of this Marine and Coastal Area (Takutai Moana) Bill, I cannot help but notice how much has been made of the Māori Party statement yesterday—and I quote Rahui Katene, the speaker from the Māori Party—“This bill is in the House on our initiative. Make no bones about it, this is a Māori Party bill. … and we are pleased to stand here in support …”. As I turn to aspects outlined in Part 3, I cannot help but focus Māori people’s attention on clauses that will impact dramatically and adversely on Māori rights to the foreshore and seabed, and ask why on earth the Māori Party is saying now this is a Māori Party bill, when just a few days ago Te Ururoa Flavell, when asked who was running the timetable, said National was. When he was asked who wrote the bill, he said National did. When he was asked whose bill it was, he said it was National’s.

💬 Te Ururoa Flavell: I raise a point of order, Mr Chairperson. This afternoon I accommodated the member from the north’s wish to speak to the Chamber, as he had limited opportunities or had not necessarily taken those opportunities. If you are listening to the discussion at the moment, Mr Chairperson, you will hear that it is centred very much on the discussion that has already been put out on the part prior to this one—namely, Part 2. Similar statements have been made, and there has been no discussion in respect of this particular part. I ask whether you could draw us back. Although we have had a reference to Part 3, the substance of the discussion has been nothing to do with Part 3. I ask whether you would take some care to listen out for that.

The CHAIRPERSON (Eric Roy): In relation to relevance, it is the prerogative of the Chair to rule. I have heard salient parts of this speech at least twice before. But the member has taken the call and whether he gets a second call will depend on his performance through his first call.

Thank you, Mr Chair. As I highlight just some of the clauses in Part 3 of this bill, and the Māori Party support for those clauses, I want Māori people to be constantly asking themselves why on earth the Māori Party would say “Make no bones about it, this is a Māori Party bill. … and we are pleased to stand here in support …”.

💬 Te Ururoa Flavell: I raise a point of order, Mr Chairperson. I am aware that there has been a change of delegation, but a Chairperson is still here. I have just made a point of order in respect of the issue of relevance to this particular part of the bill. There has been no reference back to Part 3, other than to mention Part 3 with no reference to the substance. Mr Chair, I am not sure how you will refer to this, but the Chair who held the position previously said he would keep note of the relevance to this particular part, and unfortunately the situation has not changed too much. Can I ask whether you can give some clarity around that, please?

💬 Hon David Parker: I suggest that that complaint is hardly fair. The speaker, Hone Harawira, effectively has just repeated the sentence he was delivering before he was interrupted, and he has not yet had the opportunity to make reference to a specific clause in the bill—which I have no doubt he will eventually do.

The CHAIRPERSON (Hon Rick Barker): I tell members that I am delighted to hear the word “fairness” used in this Chamber; I am not sure that fairness has always been the rule. But I heard the point of order made by the previous Chair, who said he was listening to the presentation with interest—as I am—and the Chair would make a judgment on whether the member got a second call based on the relevance of the first call. Therefore the sanction was clearly laid out to the member speaking, and to all members in the debate, that if members were not relevant to the section, then they might get the blind stare from the Chair—in other words, no further calls. In the interests of debate I think that the honourable member Hone Harawira is entitled to continue with his presentation, and at the end of it we will make a judgment as to whether the member has been relevant. That will then determine whether a second call is given, should the member wish to take one.

Does the Māori Party know that under Part 3 of this bill, a protected customary right is a right that has been exercised since 1840, continues to be exercised in a particular part of the common marine and coastal area in accordance with tikanga, and is not already extinguished as a matter of law? If the Māori Party does in fact know this, is it because this clause was either included at that party’s request, or perhaps even written by the party? Is that why the Māori Party is saying: “Make no bones about it, this is a Māori Party bill. … and we are pleased to stand here in support …”?

Does the Māori Party know that under Part 3 of this bill, the scope, effect, and limitations of protected Māori customary rights are defined and overseen entirely by Government, Government statutes, and the courts, and that whānau, hapū, and iwi have no role in that process? Is that what the Māori Party means when it talks about rangatiratanga?

Does the Māori Party know that under Part 3 of this bill, the Minister of Conservation has the right to impose controls, including any terms, conditions, or restrictions that the Minister sees fit, on the exercise of protected Māori customary rights? If the Māori Party does in fact know this, is it because this clause was included at the party’s request, or perhaps even written by the party, and is that why the Māori Party is happy to say: “Make no bones about it, this is a Māori Party bill. … and we are pleased to stand here in support …”?

Does the Māori Party know that under Part 3 of this bill, Māori must hold the specified area in accordance with tikanga, and must have exclusively used and occupied the specified area from 1840 to the present day without substantial interruption? If the Māori Party does in fact know this, is it because this clause was included at the party’s request or was perhaps even written by the party, or did it simply transfer the clause from Labour’s hated 2004 Foreshore and Seabed Act across to this hated 2011 bill?

Does the Māori Party know that under clause 49(2) in Part 3 of this bill, supposedly, “hapū means a hapū listed in the constitutional documents of an iwi …”, and “iwi means an iwi listed in schedule 4 of the Māori Fisheries Act 2004.”? Is the granting of authority to the Crown to determine Māori entities what the Māori Party means when it talks about rangatiratanga?

Does the Māori Party know that under Part 3 of this bill, a protected customary right does not affect the granting of a coastal permit under the resource—

I move, That the question be now put.

There are some interesting things in Part 3. I have been trying to deduce why the Attorney-General has moved, with some flourish, from the sequencing of whānau, hapū, and iwi in clause 3. He has turned it round quietly on his Supplementary Order Paper 207 to iwi, hapū, and whānau. That is one thing Hone Harawira has said right tonight. He has deduced that the Minister is trying to set it up in a single area, for it to be controlled and manifested, in the sense of direction, by the group he is comfortable with.

I turn to clause 81, which is about newly found taonga tūturu. I wonder whether I can jog the Minister’s support by suggesting that this is quite a powerful part for Māoridom. I wonder how he defines and determines taonga tūturu, which in my translation is the gift or sub-property that has been there for ever and ever. Clause 81(1) states: “Any taonga tūturu found in a customary marine title area on or after the effective date is prima facie the property of the relevant customary marine title group.”

💬 Paul Quinn: What’s wrong with that?

It is very good. It is suggesting that all new-found minerals there belong to the title holders. I ask the Minister to make quite clear whether that is what it means. I suppose the other part is the controls. Clause 58(1) states that “If, at any time, the Minister of Conservation determines’’. We have talked about all these issues that are relevant and strong for Māori and will benefit them, but then we come down to this quite cutting, exact, not too dissimilar legislation that defines—

💬 Hon Shane Jones: Dodgy.

It could be dodgy, but it defines, in that great litigious way, that “If, at any time, the Minister of Conservation determines that the exercise of protected customary rights under a protected customary rights order, or agreement has, or is likely to have, a significant adverse effect on the environment, the Minister may impose controls, including any terms, conditions, or restrictions that the Minister thinks fit, on the exercise of the rights.” That is really fascinating. We are trying to push this up to include statements of freedom, but what that provision really says is that, bang, all over, the Minister decides. And where does everything else sit in the sense of sequencing? What are the Māori Party members thinking when they boast that this bill is their bill, in relation to what could easily be put asunder by what some may perceive as general bureaucratic rhetoric but most think is, at the end of the day, a slippery, slimy way of controlling things?

Clause 58(2) states: “Any person may apply to the Minister of Conservation for controls to be imposed on the exercise of a protected customary right, stating the reasons for the application.” I hope that in a late Supplementary Order Paper the Minister will withdraw “any person”. One thing that is becoming starkly evident is a return to the old practice of divide and rule, with everybody setting to on everybody else, as they did, as Mr Jones would say, in the summaries of the schedules for the fisheries allocation. That is something nobody wants, and we tire of it. I hope that is not what the Māori Party is trying to ensure happens. At the end of the day, it is something that Labour members would not support.

I come back to the taonga tūturu. Clause 81(3) states: “Any person finding a taonga tūturu in a customary marine title area has a duty to notify the finding within 28 days,”—and then it gets quite specific. Subclause (4) states: “The obligations of the chief executive”—whoever that may be—“under section 11(4) of the Protected Objects Act 1975 apply, but with the following modifications:”, which are listed in paragraphs (a) and (b). Are we talking about singular objects, in the sense of art and craft? Are we talking about the paddle that fell off the waka, or whatever else? Or are we talking about a collective group of taonga, like minerals and whatever else? Hangi stones are minerals. They seem to be OK. What about something more minute—molecules, or whatever we call them, the clusters—

I start by commending the honourable member on the other side of the Chamber who has spent much time this evening talking about tikanga and making it clear to all of us that tikanga is not something we all know means a particular thing; it has different meanings to different people and therefore should not be, in our opinion, a word defined in the Marine and Coastal Area (Takutai Moana) Bill.

I will talk about special resource management rights, which are not available to other landowners under this bill. We have an example of how muddled this whole issue is. National and the Māori Party have invented a whole new property right. They had available to them freehold title, and they had available to them the courts to determine whether people had common law property rights and to grant freehold title. They could have done that, but instead they chose to produce a whole new property right. On the one hand, it is less than freehold; it does not allow owners to do a lot of things that owners of a freehold title are usually able to do, and that somebody who owns something is usually able to do. On the other hand, it gives customary titleholders a lot more than private landowners.

The Resource Management Act denies those who have scrimped and saved to buy their own property the right to use their land as they wish. Meanwhile, those with customary title—which it is clear may arise in the future as a political gift, rather than by a process of law—are given special rights to do what they like, and undue influence to veto much-needed economic development. Of course, we expect that many developments could be allowed to go ahead, at a price. Most submitters who expressed a view on these special rights believe that there is a strong likelihood that title holders will charge for the granting of these rights. This will make many possible commercial activities too expensive to undertake. When an otherwise economic activity becomes uneconomic, everybody is worse off. All this is on land that title holders, according to the Government, do not own freehold.

In short, these clauses allow a customary title holder the right to give or withhold permission for activities that resource consent is required for, on any grounds, with no right of appeal or objection; to demand fees from any and all comers for permissions without limit; and to define wāhi tapu areas, to control not merely the use of a wāhi tapu site but the possibility of the use of such areas by the payment of koha.

💬 Hon Shane Jones: Koha hōhā?

Excuse me—koha. These rights are not available to any other New Zealanders. We should not have special laws based on race in New Zealand.

The bill still allows iwi to have special conservation permission rights that can be declined or given for special conservation activities. The Environmental Defence Society, which came along to the submission process—in good faith I might add—did a very good job of summing up the argument against this. It, like many, objects to the gifting of far stronger rights than those of private landowners. There is also a huge conflict of interest for many iwi here. Those with financial interests in aquaculture and commercial fishing cannot be expected to make impartial or rational decisions on the extension of marine reserves.

In Subpart 3 there is a right for customary marine title holders to prepare their own planning documents, and the preparation of these planning documents is a serious issue. They can include all areas where the customary marine title holder—

Kia ora koutou katoa. I am pleased to take a call on the Marine and Coastal Area (Takutai Moana) Bill. It is the first call I have had the opportunity to take, having been out of the House for the last several days doing work elsewhere. Although I have not had the opportunity to speak in the House, I have had ample opportunity to speak outside of the House. As this bill is being debated here—in particular tonight the question of the test of proving customary right—so too is it being debated around this country. I have been around the country quite extensively in the last week or so. At every turn people have been focusing on this debate. This debate is being watched; it is being participated in. It is an important debate for that reason alone.

I was asked yesterday whether there is anything good about this legislation. Could I find a positive thing to say about it? The best I could come up with was that this bill is likely to be the low point of this term of Parliament. It is unlikely that we will see a more offensive piece of legislation come into this House any time soon. It is a low point. It is an offensive piece of legislation. It manages to offend liberals. It manages to offend conservatives. It manages to offend Māori and non-Māori. At every point on the political spectrum there is opposition to this bill. The only difference about the debate within the House and the debate that is occurring outside of the House is that within the House it is still possible to find a few people who will stand and support the bill. In my experience that is almost impossible to find outside.

Much of the debate revolves round this test, this so-called test, which actually is an exclusionary statement. It seeks to exclude Māori from proving customary right and, therefore, having their rights respected. At the time of the signing of the Treaty a number of our tūpuna were persuaded to sign that document because it was put to them that signing the Treaty gave the shadow of the land to the Crown but the substance remained with ngā iwi, with the hapū, and with the whānau. This bill very effectively reverses that. At best, Māori will have the shadow of a right. They will have the reflection, the memory, of a right. They will not have the substance of that right. This legal fiction, this nonsense of non-ownership puts ownership control—real control— firmly in the hands of the Crown and denies it to Māori.

This bill joins a shameful list. It may be instructive, for even members within this House, and certainly for people outside, to go to the Treaty Resource Centre website, which has a very well-collated list of legislative transgressions of Te Tiriti. This bill most certainly will join that list if it is, in fact, passed into law. Since the early 1840s, very shortly after the signing of the Treaty, legislation has been passed that has transgressed the spirit, the letter, the principles, and whatever of the Treaty, and this bill will add to that list.

The notion of exclusive undisturbed use and occupation is foreign to Māori in the sense that Māori are a generous people, a hospitable people. Hospitality and the display of generosity is respected and adds mana to individuals, to hapū, and to iwi. The notion of exclusivity and the demand that exclusive use must be demonstrated is anathema to that notion of hospitality, of generosity of sharing, and, indeed, of cooperation Māori share resources routinely within and between hapū and iwi, and share access to resources at given times of year—

💬 Hon Tau Henare: Come on this is 2010, not 1845!

This is indeed 2010, 2011. The principle of reciprocity, of generosity has not gone away, at least for the Māori I know and respect. My whakapapa, my interests, and my preference take me to Tai Tokerau—take me to that place. From my discussions and my interactions in the north, everywhere I go I hear opposition to this bill from Māori and non-Māori alike. Those who suggest Hone Harawira is representing his own view or the view of a small bunch of radical activists are 110 percent wrong. Everywhere and anywhere, from the most moderate Māori through to the most radical non-Māori, this bill is being opposed in Tai Tokerau.

I move, That the question be now put.

The CHAIRPERSON (Hon Rick Barker): No, I will take some more calls because this is the most substantive part of the bill.

That’s what they said about Part 2, Mr Chairperson.

The CHAIRPERSON (Hon Rick Barker): I was not here for the debate on Part 2. I have had a look and it is quite a substantive part. People are on task, and there has been no repetition.

It is notable that National has taken no calls this evening on the Marine and Coastal Area (Takutai Moana) Bill, except for calls to call closures—

💬 Hon Simon Power: I just took a call.

Except to call closures. There has not been one substantive contribution from National, nor from the Māori Party. They are just trying to put this through—no, the Minister in the chair, the Hon Christopher Finlayson, made an initial contribution, but there has been no contribution from any member on the opposite side of the Chamber except for the Minister in the chair.

The last time I spoke I explained to the Committee why the Labour Party moved from preferring codification of the tests in legislation, and I dealt, I thought, with the issue that the Attorney-General raised in his initial contribution. I want to now refer to two issues where there are problems with the statutory codification. The first is that I do not understand why in clause 60(2), as set out on Supplementary Order Paper 207 in the name of the Hon Christopher Finlayson—but in this respect it is not much different from the form that was in the original bill—there is no substantial interruption of the exclusive use and occupation of a specified area by virtue of the fact of a resource consent for an activity being granted between the commencement of the Act and the effective date. That is a strange thing for me, because it almost implies that if there was a resource consent granted outside that period, it does undermine exclusive use and occupation since 1840. So what is the case in respect of resource consents granted, for example, between the Ngāti Apa decision and the date of this bill? That is one example of a situation where I think there will be a sense of injustice amongst Māoridom as to the effect of this legislation.

Another one where we have problems is that the Government decided early on that it would stick with exclusive use and occupation, and then it decided that it could envisage times when there could be more than one party with a customary right that could have co-existed back in 1840. It came up with the concept that more than one party could have exclusive use and control; in effect, one could say that someone did it jointly. So the Government thought that it needed to accommodate that somehow. The Government has a mechanism in the bill that allows more than one party to come forward and to effectively have customary title rights that overlap each other. I have no problem with that. But what I have a problem with is that the Government then came out and said that if one person applies for recognition of rights, someone else has to put up their hand at the same time. By the time it gets through the process in respect of that first right—and it might have the second party involved—anyone else who was ignorant of the process, or who did not at that time have the resources to pursue recognition of their extant right, loses their right if they do not put their hand up within that period.

I cannot see how that is fair. I do not think a court would do that. I do not think a court would say: “Look, I’m sorry. You may have had rights, but because we’ve recognised somebody else’s rights we will not recognise yours.” We can have rights that coexist. Why are we codifying this legislation in a way that makes people lose their rights just because they did not take part in the process? The issue is made even worse given the fact that some of those processes will not be through court processes. I have great trust in the processes run by the courts to protect the various interests involved when there are competing private interests within those terms—

💬 Paul Quinn: Why didn’t you write that into the Foreshore and Seabed Act, David?

Oh, look. Here we go. We have National crowing again about why did we not do this, and why did we not do that in the 2004 Act. We did that because people like the man who is sitting next to that member rarked up race relations—

💬 Hon Shane Jones: With Don Brash!

Hon DAVID PARKER:—with Don Brash on talkback radio, and brought out the racism in New Zealand that is oh, so close to the surface whenever we scratch these itches. That is one of the reasons that we did not get that legislation perfect.

I also say that although the 2004 Act was not perfect, it was not nearly as bad as it has been characterised by its critics. We have said, though, there was an important impediment in the Act that we passed—we acknowledge that we got that wrong—and that is that a person should be able to get a court remedy. A person should be able to get a court remedy if they have an extant interest that had not been extinguished.

The Green Party has a number of amendments on the table to the Marine and Coastal Area (Takutai Moana) Bill. Just for those who maybe cannot hear what is going on in the Chamber, Tau Henare is very grumpy because his party will not let him speak on the legislation, because National and the Māori Party want it to proceed very quickly. So instead of speaking and taking the call like the mature, responsible members of Parliament who want to debate the issue, he is shouting at all of the members as they speak. It is a sad indictment on the way National and the Māori Party have whipped their members such that their people who are knowledgable about the issue, such as Tau Henare, who was on the select committee, are not able to speak on it, and it is a real shame. It leads to a great deal of shouting, which I am sure members of the public can hear through their radios and televisions.

However, the Green Party has a number of amendments to the bill, and we would like to discuss those in a rational, mature way, as opposed to shouting a lot. The amendments deal mostly with the test, because this part of the legislation deals with the tests for customary marine title and for the protected customary rights. In Labour’s Act these were called territorial customary rights and customary rights, I think. So they are effectively the same two sets of rights that Labour had but they just have a different name. The protected customary right is the right to engage in an activity on the land. The customary marine title is a greater set of rights based around the idea that the iwi might have had proper customary title determined by the court. So those are the two sets of rights in this part that Māori can access if they go to the courts, and if they do their negotiations with the Government.

The amendment the Green Party has put up is essentially to delete those tests. We do not believe that it is right for the Government to set the tests for how Māori should be able to claim or prove either their customary rights or their customary title. It is our view, and has always been our view, that the courts are the ones who should be setting those tests. The reason for that is that the Crown has an interest in keeping the bar for those tests very, very high. It was certainly the case under the previous Labour Government, and is under the National Government, that Governments tend to look first at their economic interests in the retention of their political power before they look at issues such as justice and what is right. I think we have seen that, over this issue, with both kinds of Governments we have had. The economic interest of Government has been in keeping the ownership in control of the mineral resources of the marine and coastal area. We saw that last time, when applications for mining came to a halt during the foreshore and seabed debate and deliberations, and were then ramped up massively after the bill was passed, when the Crown had acquired ownership of these areas for itself in legislation. Since then, there have been a great number of applications for marine and coastal mining in this area, and that continues. Again, in this bill we have the Government doing the same thing—acquiring for itself using a legal fiction to make sure it retains control of those areas.

That is one of the interests that has gone into the nature of these tests—how high the bar should be set for Māori to prove their customary title, if it interferes then with the Government’s economic interests. On the other side are the political considerations, as well. We do not believe that the Government should be setting those tests, because they have an interest in keeping that land for themselves for political and economic reasons. It is actually fairer and more just for the courts to determine these tests, in our view. The reason we considered that—and I know that my colleague Catherine Delahunty spoke about this earlier—is that the courts do not have those same political and economic interests. Courts do not do things perfectly, either; we have seen lots of examples of problems. But their primary concern—at least structurally—is stability of justice, making sure that justice is met. They will also have the ability to look wider than the Government is prepared to. One of those areas, for example, is looking at the history of colonisation in this country. The Waitangi Tribunal reports have set out year after year how land has been unlawfully taken by the Crown, been utilised, had structures built on it, had things done to it, and been kept out of Māori hands.

Tēnā koe, Mr Chairman, kia ora tātou e te Whare. Kua tū ake mō te wā poto, kaua mō te wā roa. Nā runga i te aha? Nā runga i te mea, he hiahia nōku ki te whaiwhai haere i te kōrero o ngā mātua, o ngā tūpuna, whakatikahia te hē ki te pono. Nā runga i tērā kōrero, koi nei au i tū ake. Kua rongo ake i te āhuatanga o ngā kōrero mō tēnei wāhanga, me te kī atu, ā, ā ngā tau kei mua i te aroaro, ko ngā kōrero ka kōrerohia i roto i te Whare nei, ā, ka tuhia ki roto i te Hansard mō ake, ake, ake tonu atu. Nō reira kua tū ake, kei pōhēhē ētahi, kāore te mema o te nōta i reira i te wā i whiriwhirihia ēnei take nui, whakaharahara.

Mō te roanga o te tau kua hipa ake, i a mātou o te Pāti Māori me te Nāhinara e titiro ana ki tēnei wāhanga, te wāhanga tuatoru; i a mātou e titiro ana ki ngā customary interests, ki ngā protected customary rights, ki ngā controls, i tono mai te Minita i ngā kōrero katoa ki roto i te Pāti Māori, ki reira wetewetengia ai. I a mātou e kōrero ana mō te determination of customary marine title, the rights under customary marine title, accommodated activities, i tae mai te Minita ia wiki, ia wiki, ki te whakamārama mai ki te kāhui Māori ki te hōhonutanga o ērā take, me tā mātou kōrero, pātai ki a ia. I a mātou e titiro ana ki ngā Resource Management Act permission rights, ki ngā conservation rights, i reira te mema o te nōta, i roto i tō mātou kāhui, e whakarongo ana ki ngā kōrero mō te hōhonutanga o ēnei kōrero. Ka mutu, i a mātou e āta wetewete ana i ngā protection purposes, tēnei wāhanga o te mea nei, i āhei tonu te mema ki te pātai i te Minita, ki te āta pātai ki ngā kaiāwhina o te Pāti Māori, mō te hōhonutanga o ēnei take, tae atu ki ngā taonga tūturu, ki te status of minerals, mō te āhuatanga o ngā planning documents, o roto i tēnei wāhanga, ka mutu, ko te katoa. I te wātea mātou katoa, tae atu ki tērā mema, te pātai i ngā pātai, te whiu atu i te pātai ki te tangata, kia taea ai e mātou te ruku ki roto i te hōhonutanga o te take nei.

Engari, karekau he paku pātai i puta, karekau. Karekau he paku kōrero i puta, kei pōhēhē, ā, nō mātou anake tēnei whiriwhiringa, karekau, kāo. Mātou katoa i titiro ki te hōhonutanga o te protection purposes, ēnei āhuatanga katoa. Nō reira ko tāku noa ake ko te kī atu, tae rā anō ki te pō whakamutunga mō te wā ka tae mai tēnei pire ki konei, mātou tokorima, i reira. Mātou tokorima i reira. I pā te ringa ki te pire nei, tokorima ngā ringa i pā ki te pire nei. Nō reira ko tāku noa ake he whakamārama mō te pukapuka ā ngā tau kei mua i te aroaro.

Āe, ko te Pāti Māori e noho nei i te taha o te Kāwanatanga ki te āta whiriwhiri, te whakatikatika i ngā kupu katoa, i ngā kōrero katoa, ki te whakahē i te mahi tūkino a te Rōpū Reipa i te wā i a rātou, ā, ki te whakatikatika i te hē i tau mai ki runga i te iwi Māori, ki te whakatikatika i tērā hē. Koi nei te hua o ēnā kōrero. Okorima te hunga i wetewete i te take nei, ā, tokowhā i tōna mutunga mai i whaiwhai haere ki tōna mutunga. He whakamārama ake tēnei ki te Whare, mō ake nei.

[Thank you, Mr Chairman, and greetings to the House. I rise for a brief moment, not a long one. And for what purpose? It is because I want to follow up advice of the elders and ancestors, which is to correct a mistruth, with the truth. So I rise. I have heard the contributions made to this part of the bill, and remind members that what is stated in this House is recorded in the Hansard for the future, and for ever. Therefore, I rise in case some members get the impression that the member from the far north was not present at the time when these very important matters were discussed and considered.

For most of the past year, we, the Māori Party and National, have examined this Part 3. As we looked at customary interests, protected customary rights, and various controls, the Minister sent all the information to the Māori Party caucus for us to analyse. And while we discussed the determination of customary marine title, the rights under customary marine title, and accommodated activities, the Minister came every week to explain the depth of those matters to the Māori Party. We questioned him then. While we were looking at the permission rights and conservation rights in the Resource Management Act, the member from the far north was present in our caucus meetings, listening to the details. And while we analysed the protection purposes in this part, the member had the opportunity to ask questions of the Minister, and to ask Māori Party staff about the complex nature of these issues. That included the status of minerals, planning documents within this part, everything. All of us, including that member, were able to ask questions so that we could delve into the complexity of this issue.

However, no questions were asked—none at all. Nothing was said then, lest some assume that we made this decision on our own—no. We all looked into the deeper details about protection purposes, all of these aspects. So I want to simply state that the five of us were present right up to the final night when this bill was to come before the House. All five of us were there. All five had a hand in this bill. I just want to make an explanation for the official record.

Yes, the Māori Party sits alongside the Government to carefully consider and amend any wording and statement in the bill, and condemn the harmful actions of the Labour Party when it was in Government; to rectify the wrongdoing that befell the Māori people, and put it right. What you have before you is the outcome. Five members analysed this matter, but at the end of it four members are following it through to its conclusion. This is an explanation to the House, for the record.]

I move, That the question be now put.

First of all, I need to take issue with what the ACT Party keeps on saying about Māori being gifted or given special rights, because that is not true. What we are talking about here with regard to the Marine and Coastal Area (Takutai Moana) Bill are the rights that Māori have always had. Māori have been here since way before 1840. Our way of life and what we have done has not changed; we are just pursuing the rights that we have always had. I really take issue with the misconception that Māori have been plonked here recently and given special rights. Māori are pursuing the rights that we have always believed we had.

Having thrown that brickbat, this is not a bouquet for the ACT Party but more of an acknowledgment of an issue that the Hon John Boscawen has raised about wāhi tapu, and the concern that we as Māori will claim every single square kilometre of the foreshore and seabed as a wāhi tapu, in order to exclude people. I think we need to be careful as Māori that we do not try to make out that every single area where we can launch a waka, for example, is some sort of sacred area. I could say that the boat ramp at Waitangi is a wāhi tapu, because I could tell my children that their tupuna launched his waka there, when in fact I am just referring to their grandfather launching a 9-foot tinny. We have to be careful that we do not try to make areas tapu that are not tapu. In fact if something is being regularly and commonly used, it is actually noa, which is the opposite of tapu.

That is a word of caution, I believe, to Māori that we do not fuel the arguments that the ACT Party is dishing out there, stating that Māori will make every area of the takutai moana a wāhi tapu because our tūpuna might have walked there—our tūpuna being our fathers, say, and our grandfathers. That is just a word of caution.

I also think we need to acknowledge the Moriori contribution in the select committee stage on this bill in the Māori Affairs Committee. Moriori were not happy with the clause that states that the foreshore and seabed has to have been exclusively used and occupied since 1840, because in 1835 they were invaded, and a lot of their rights were taken away 5 years before the date that we have written in here of 1840. Moriori believe that their rights will be denied if that provision regarding exclusive use and occupation since 1840 is put through. I think it is important that we acknowledge the contribution from the Moriori of the Chatham Islands / Rēkohu.

I also want to bring up a point about the wardens that are mentioned in clause 79. I really think it is important, because hapū and iwi are able to appoint wardens, that there is some way for those wardens to be identified if people come along to the beach and find there is a warden guarding a wahi tapū. Although I find it hard to believe that someone will be standing around in a wāhi tapu, just waiting to tell people to go away, I think there needs to be some sort of mechanism for recognising wardens. We do not want to have a situation whereby a Māori person who is just a standing there, enjoying the beach, and minding their own business is accused of intimidating people. We do not want that to be used as an excuse by people to say wardens are there to scare people off. The whole issue of the wardens, I think, needs to be examined and thought through really carefully, so that Māori are not mistaken for somebody whom they are not. Again, I say there might be confusion between the definitions of “warden” in this bill and in the Maori Community Development Act.

Tēnā koe, Mr Chairperson. I will not respond by talking about other people’s relationships with Ministers of the National Party, or about the National Government at all. I will talk about the bill.

Part 3 of the Marine and Coastal Area (Takutai Moana) Bill, which includes a whole host of clauses that will do huge damage to the Māori world, cause great pain to the Māori people, set down some truly appalling benchmarks in respect of Māori rights, and turn the clock backwards on Māori self-determination. Māori people for many generations to come will wonder how on earth the Māori Party, which rode into power on a wave of discontent over the confiscation of Māori rights to the foreshore and seabed, claimed the bill as its own, when the only other party in this House that supports it is the party that gave us Don Brash, tax breaks for the rich, cuts in social spending, an increase in GST, and the “three-strikes” legislation.

Although I have the energy to challenge this bill in the House, given the shortness of time we have had to study it, it is difficult to find the time, the space, or the capacity to properly detail all of the clauses in Part 3—and in all other parts of this bill—and to provide the in-depth examination that is properly required to show just how much this bill will hurt Māori. I stand against not only Part 3 of this bill—

💬 Hon Trevor Mallard: I raise a point of order, Mr Chairperson. As part of a little exchange an extremely offensive comment was made to me, about me, by Tau Henare. I require that he apologises.

The CHAIRPERSON (Hon Rick Barker): I am sorry. There was a bit of a din in the Chamber; I did not hear it. If the member made an offensive remark, he will withdraw and apologise.

💬 Hon Tau Henare: I withdraw and apologise.

I stand against not only Part 3 and all of its clauses but every other part, clause, subclause, and word in this bill. I do so because Māori people have declared their opposition to this bill, every part of this bill, through the submission process, through the iwi leadership walking away from this bill, through the hīkoi on the road right now to oppose the bill, and through the hundreds of emails, texts, Facebook messages, voicemails, and comments that I have received from Māori Party members telling me they are gutted by what their caucus is doing in supporting Part 3 and all other parts of this bill. They intend to leave the Māori Party over what they perceive to be the Māori Party caucus’ betrayal of the very birthright of the party. When the Māori Party caucus says that make no bones, it is a Māori Party bill and they are pleased to stand here and support it, I remind the Committee that it is not true to say the Māori Party is proud to support this bill. The caucus does, but the membership does not. I urge all those Māori Party members who are watching the debate on Part 3 of this heinous bill on Parliament TV or are listening to it on the radio to contact the Māori Party MPs and beg them to wake up, smell the shellfish, and realise that supporting this bill is not what either the party or the people want.

Tū te Ao Māori, tū te rangatiratanga, tū motuhake. Tēnā tātou katoa.

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

I was speaking earlier about the Green Party’s amendments to Part 3 of the Marine and Coastal Area (Takutai Moana) Bill. Our amendments would omit the two sets of tests, and I explained why that was the case. I talked about the Green Party’s belief that Māori should have the right to go to the courts and that that right should be restored in full, not in the Clayton’s version that is set out in this bill. We say the right to go to the courts should be restored in full, and the courts should determine the tests required to prove that Māori have customary title. The courts should work out what customary title might mean.

The reason we think the courts are in a better position to do this than the Government is that the courts do not have the same political and economic interests that Governments do in setting the bar high. I say “Governments” because both the National Government and the previous Labour Government have exercised their choice to set the bar too high for Māori to be able to prove that they had customary title. Notwithstanding that the courts do not do everything perfectly, they do not have the same political and economic interests as a Government has in the outcome. They have greater flexibility regarding the different tests that they could use.

The 2004 legislation referred to, I think, “continuous ownership” or “continuous title”, but I cannot even remember the language that was used. There was basically a requirement that Māori had to own the land that sat alongside the foreshore and seabed area, and that would enable them to prove ownership. That was impossible for Māori practically everywhere, because the colonisation process in this country has been such that that land has been taken from practically every Māori iwi, hapū, and whānau in the country. That land was taken by force, it was taken unlawfully, and it was taken in accordance with promises that were never met. Yet that would still be sufficient to extinguish Māori customary title under the 2004 legislation.

This bill does not have quite the same test as that in the 2004 Act, but it does require Māori to have exercised their customary rights or their rights to exclusive use and occupation in a manner that has been substantially uninterrupted since 1840. That is an impossible test. In a colonised country where the vast majority of what was Māori-owned land has been taken by the Crown, by Governments, there is no way that iwi can legitimately meet a test of exclusive use and occupation that has been substantially uninterrupted since 1840. It simply does not exist in the way that has been set out in this bill. So the bar has been set too high by the National Government and the Māori Party. I do not know why the Māori Party would set as high a test as this, a test that by far and away iwi and hapū would not be able to meet. I do not know why the Māori Party would decide that it was OK to set a test as hard as that. The Māori Party readily understands that because this is a colonised country, most of that land has been taken.

Not only have we proposed an amendment on Supplementary Order Paper 206 in my name to remove the tests from the legislation but also, if that is not what the Committee wants to do, we have proposed an additional amendment to alter the test in the amended version of clause 61 as set out on Supplementary Order Paper 207 in the name of the Minister, the Hon Chris Finlayson. Our amendment says a customary marine title will not be considered to be extinguished if somebody has been using the land for access and recreation, if somebody who has been using it has placed a structure or some other thing on that land, if someone has used it for an unlawful or unauthorised occupation, or if someone in the exercise of that unlawful or unauthorised occupation has then placed a thing, a structure, or a building on that land.

This amendment just opens up more space for iwi, whanui, and hapū to be able to meet the test. It means that if that area has been used as a recreational area or an access way by some people, without recourse at all to the iwi and hapū who are claiming the customary title, then that is not enough to extinguish it.

Tēnā koe, Mr Chairperson. I direct the attention of the Committee to clause 50, which is on pages 17 and 18, in the Minister’s Supplementary Order Paper 207 to the Marine and Coastal Area (Takutai Moana) Bill. I have a modest and very helpful contribution in the form of an amendment to clause 50(3)(c)(i). As a reflection of the very shoddy process, rushed drafting, and deprived opportunity for people to have their democratic chance fully exploited, I invite the Government of the day to support this small change. It may come to pass that I am the only Māori member who will effect a small change to this legislation. If that be the case, I want Hansard to note that I did not need to leave my party to enjoy this status.

I want to tell Tau Henare and Paul Quinn, the man who injudiciously and unwisely boasted that he read 500 pages, that Mr Quinn did not spot that error in subclause (3)(c)(i) where the Crown seeks to weaken and further make the Māori position in the seabed and foreshore more marginal, unknown to the member from Waiariki, Te Ururoa. On that point, I must say that the term “muru” means to plunder and thieve. “Muru roa” will be a name that will always—not Ururoa—be associated with this bill.

💬 Te Ururoa Flavell: I raise a point of order, Mr Chairperson. Kei te whakahē au i tērā momo kōrero e whakaiti nei te āhuatanga o taku ingoa. Ko māua kei te mōhio ki a māua. Kāre au i pērā rawa ki a ia. Kāre au i hiahia kia pērā rawa a ia ki tōku ingoa, tōku whakapapa. Me tuku whakapāha tonu a ia ki a au, otirā, ki ōku tūpuna.

[I object to that kind of talk, which belittles my name. We know each other really well. I do not behave like that towards him. I do not want him to belittle my name and my genealogy. He must apologise to me and my ancestors forthwith.]

The CHAIRPERSON (Hon Rick Barker): The member makes a fair point. We should use each other’s names in this House respectfully. I invite the member to withdraw the comment he has made and continue.

Whakapāha ana au. I raise a point of order, Mr Chairperson. There is an equally well-known Māori saying—and indeed it is repeated in the Bible—“Do unto others as you would have them do unto you”. That rhythm and pattern of behaviour started with that member in his description of one of my new-found colleagues, Mr Harawira. However, let me come back—

The CHAIRPERSON (Hon Rick Barker): I entertained the member’s point of order not for him to make a further one. If the member who was offended at the time took offence, then it was for that member to raise the point of order and seek a withdrawal. The fact that the member did not raise it does not leave it open to the Hon Shane Jones then to make the point on his behalf. The fact is that Te Ururoa Flavell has taken offence at the misuse of his name. It is a fair point, and I have asked the member to withdraw the comment.

I withdraw and apologise. I direct our attention, and the attention of the member from the Māori Party, back to the contribution that I am making, which whether or not he likes it he will be voting for. It involves the change of the word “of” for the word “by”. Mr Quinn has called out “Whereabouts?”. It is on page 18 of Supplementary Order Paper 207, which he has not read, in new clause 50(3)(c)(i): “to inform iwi, hapū”—[Interruption] I want the House to note when we move from the word “of”, which is probably a possessive particle—unlike Tau Henare, not possessed by Beelzebub—to the word “by”, the introduction of the word “by” enables the readers, and the leaders of the hapū, to understand that the obligations of the Crown will impact them. It will potentially have an inimical impact on them, or it could be irrelevant.

I am inviting Tau Henare, Paul Quinn, and Te Ururoa Flavell to support this simple, modest, very helpful, and pro-democratic contribution this evening to bring lucidity to what, in many respects, is very dense and largely incomprehensible legislation, which is not unlike the contributions blurted out from that member who lives in Te Atatū but who will never represent Te Atatū.

I should go on. I do not want to overplay the importance of this amendment, but I will bring it to the attention of the Attorney-General in the spirit of reasonableness. Not unlike a number of members on this side of the Chamber, he is no stranger to the finer points of the English language. So not for us these coarse contributions, not for us these banal outbursts; we leave that to that portion of the rump of National, which is soon to disappear when the party vote declines. It will be rather sad but rough justice that the member who fled from Winston Peters will watch that portion of the vote for the National Party bring Winston Peters back in and him out. He will go like the takutai moana—the ebbing of the tide.

I need to come back and be relevant. A tremendous level of importance is attached to ensuring that when notice is given to our Treaty partners the Māori Party ensures that it does not look as if the Māori Treaty partner is being possessed by the Crown in the way in which the Māori Party is now possessed by National. No, this has to do with a likely impact.

I move, That the question be now put.

A party vote was called for on the question that the question be now put.

While the Clerk is doing the count, let us start as we intend to continue. The kawa of this place is that votes are heard in silence. There are to be no interjections, oohs, ahs, or grumbles. It is difficult enough for the Clerk; it is getting late at night and we do not want to have any mistakes. When the voting is being called, members will be silent and give the Clerk a fair go.

The next is an amendment in the name of Hilary Calvert to clause 48, set out on Supplementary Order Paper 217. It is ruled out of order as it is inconsistent with the previous decision. The next amendments are in the name of Hilary Calvert to clause 49. They are set out on Supplementary Order Paper 217, and they are also ruled out of order by the Chair as not being serious amendments.

The question was put that the following amendment in the name of the Hon Shane Jones to the proposed amendment set out on Supplementary Order Paper 207 in the name of the Hon Christopher Finlayson to omit clauses 49 to 51 and substitute new clauses 49 to 51 be agreed to:

to omit from new clause 50(3)(c)(i) “of” and substitute “by”.

Amendment to the amendment agreed to.

The question was put that the following amendments in the name of the Hon Christopher Finlayson to clause 52 be agreed to:

to insert the following new subclause before subclause (1):

(1AA) In this section, marine mammal has the same meaning as in section 2 of the Marine Mammals Protection Act 1978.; and

to omit from subclause (2)(b) “iwi or hapū” and substitute “iwi, hapū, or whānau”.

The next amendments are in the name of Hilary Calvert. They are amendments to clause 52 to insert new subclause (1A) and to amend clause 52(2)(b), and they are set out on Supplementary Order Paper 217. These are ruled out of order as they are inconsistent with the previous decision. The next amendment is Hilary Calvert’s amendment to clause 52(3)(a). This is set out on Supplementary Order Paper 217. The Chair is also ruling this out as not being a serious amendment.

The question was put that the amendment set out on Supplementary Order Paper 206 in the name of Metiria Turei to omit clause 53 be agreed to.

The next amendment is in the name of Hilary Calvert. It is an amendment to clause 53(2)(b)(i). This is set out on Supplementary Order Paper 217. The Chair is ruling this one out of order as it is not a serious amendment.

The question was put that the amendment set out on Supplementary Order Paper 217 in the name of Hilary Calvert to omit clause 53(2)(d) be agreed to.

Amendment not agreed to.

The next question is in the name of Hilary Calvert. It is an amendment to clause 53(3). This is set out on Supplementary Order Paper 217. This is ruled out of order as being inconsistent with the principles and objectives of the bill.

The question was put that the amendment set out on Supplementary Order Paper 206 in the name of Metiria Turei to omit clause 54 be agreed to.

The next amendment is the name of Hilary Calvert. It is an amendment to omit clause 54(2). It is on Supplementary Order Paper 217. It is ruled out of order as being inconsistent with the previous decision.

The question was put that the amendments set out on Supplementary Order Paper 217 in the name of Hilary Calvert to omit clause 54(3) and (4) be agreed to.

The next amendment is in the name of Hilary Calvert. It is an amendment to omit clause 55(3). This is on Supplementary Order Paper 217. It is ruled is out of order as being inconsistent with a previous decision.

The question was put that the amendment set out on Supplementary Order Paper 217 in the name of Hilary Calvert to clause 56 be agreed to.

The next amendment in the name of Hilary Calvert to omit clause 57, as set out on Supplementary Order Paper 217, is out of order as being inconsistent with a previous decision of the Committee.

The question was put that the amendment set out on Supplementary Order Paper 217 in the name of Hilary Calvert to clause 58(1) to omit “impose controls, including any terms, conditions, or restrictions that the Minister thinks fit, on the exercise of the rights.” and substitute “revoke the protected customary right” be agreed to.

The next amendment in the name of Hilary Calvert is to clause 58(1) to omit “the Minister” and substitute “the Minister of Conservation”. This is out of order. The following amendment in the name of Hilary Calvert is to clause 58(2), to omit “person” and substitute “person or group”. This is also out of order.

The question was put that the amendment set out on Supplementary Order Paper 217 in the name of Hilary Calvert to clause 58(2) to omit “right” and substitute “right, or have a protected customary right revoked” be agreed to.

The next amendments in the name of Hilary Calvert are to clause 58(3). These are out of order as being inconsistent with a previous decision of the Committee. The amendments in the name of Hilary Calvert to clause 58(4) to omit “Minister” and substitute “Minister of Conservation” and to omit “applicant” and substitute “applicant and protected customary rights group” are out of order.

The question was put that the amendment set out on Supplementary Order Paper 217 in the name of Hilary Calvert to clause 58(4) to omit “accordingly” and substitute “within five days of making a decision” be agreed to.

The next amendments in the name of Hilary Calvert are to clause 59(1), (2)(c), and (2)(e). These are out of order as being inconsistent with a previous decision of the Committee.

The question was put that the amendment set out on Supplementary Order Paper 217 in the name of Hilary Calvert to clause 59(3)(b) be agreed to.

The next amendment in the name of Hilary Calvert is to clause 59(5), as set out on Supplementary Order Paper 217. This is out of order as being inconsistent with a previous decision of the Committee.

The question was put that the amendment set out on Supplementary Order Paper 207 in the name of the Hon Christopher Finlayson to omit clause 60 and substitute new clause 60 be agreed to.

The next amendment is in the name of Metiria Turei to omit clause 60, set out on Supplementary Order Paper 206. This is now out of order as being inconsistent with a previous decision of the Committee. We have an amendment in the name of Hilary Calvert to clause 60(1)(b). This is out of order as also being inconsistent with a previous decision of the Committee.

The question was put that the amendment set out on Supplementary Order Paper 206 in the name of Metiria Turei to omit clause 61 be agreed to.

The next amendment in the name of Hilary Calvert is to clause 61(1), to omit “whether customary title exists” and substitute “determine existence of customary marine title”, is out of order.

The question was put that the amendment set out on Supplementary Order Paper 217 in the name of Hilary Calvert to clause 61(1) to omit “may” and substitute “must” be agreed to.

The next amendment in the name of Hilary Calvert is to clause 61(1)(a)(i) to omit “substantial interruption” and substitute “interruption of 366 consecutive days or longer”, as set out Supplementary Order Paper 217. This is now out of order as being inconsistent with a previous decision of the Committee.

The question was put that the amendment set out on Supplementary Order Paper 217 in the name of Hilary Calvert to clause 61(1)(a)(i) to omit “1840” and substitute “6 February 1840” be agreed to.

We have amendments in the name of Hilary Calvert to clause 61(1)(a)(i) and (ii) to omit “1840” and substitute other dates. These are out of order as being inconsistent with a previous decision of the Committee. A further amendment in the name of Hilary Calvert is to omit clause 62. This is also out of order as being inconsistent with a previous decision of the Committee.

The question was put that the amendments set out on Supplementary Order Paper 217 in the name of Hilary Calvert to clause 63(2)(a) and (b) be agreed to.

The next amendment in the name of Hilary Calvert is to clause 63(2)(c). This is out of order because it is inconsistent with a previous decision of the Committee.

The question was put that the amendment set out on Supplementary Order Paper 207 in the name of the Hon Christopher Finlayson to insert new clause 63A be agreed to.

I seek leave to amend the ACT Party vote from 4 votes to 5 votes for the last four votes that were taken, the four different votes that were before the Committee of the whole House. I ask for them to be amended from 4 to 5.

Leave is sought for that purpose. Is there any objection? There is no objection. The record will be corrected.

The next amendment set out on Supplementary Order Paper 217 in the name of Hilary Calvert is to omit new clause 63A. This is out of order as being inconsistent with a previous decision of the Committee.

The question was put that the amendments set out on Supplementary Order Paper 217 in the name of Hilary Calvert to omit clause 64(1)(a) to (e) and (2) be agreed to.

The next amendment in the name of Hilary Calvert is to clause 64(3). This is out of order as being inconsistent with a previous decision of the Committee.

The question was put that the amendment set out on Supplementary Order Paper 213 in the name of Metiria Turei to omit new clause 64C set out on Supplementary Order Paper 207 in the name of the Hon Christopher Finlayson be agreed to.

The next amendment in the name of Hilary Calvert is to clause 65, to omit subclauses (3) and (4), as set out on Supplementary Order Paper 217. This is out of order as being inconsistent with a previous decision of the Committee.

The question was put that the amendment set out on Supplementary Order Paper 217 in the name of Hilary Calvert to omit clause 65(5) and (6) be agreed to.

The next amendment in the name of Hilary Calvert to clause 66(2) is out of order as being inconsistent with a previous decision.

The question was put that the amendment set out on Supplementary Order Paper 217 in the name of Hilary Calvert to clause 66(3) to omit “40” and substitute “7” be agreed to.

The next amendment in the name of Hilary Calvert is to clause 68(1), to omit “is” and substitute “is not”. This is out of order as being inconsistent with the principles and objects of the bill.

The question was put that the amendment set out on Supplementary Order Paper 217 in the name of Hilary Calvert to clause 68(1) to omit “unless the relevant customary marine title group has given permission under section 65(2)” be agreed to.

The next amendment in the name of Hilary Calvert is to clause 68(2)(a) to omit $300,000” and substitute “$50,000”. This is out of order as being inconsistent with a previous decision.

The question was put that the amendment set out on Supplementary Order Paper 217 in the name of Hilary Calvert to clause 68(2)(b) to omit “$600,000” and substitute “$3.50” be agreed to.

The next amendment in Hilary Calvert’s name is to clause 68(2)(b) to omit “$600,000” and substitute “$60,000”. This is out of order as being inconsistent with a previous decision.

The question was put that the amendments set out on Supplementary Order Paper 217 in the name of Hilary Calvert to clause 68(3) and (3)(a), (b), and (c) be agreed to.

The next amendment in Hilary Calvert’s name to omit clause 69 is out of order as being inconsistent with a previous decision.

The question was put that the amendment set out on Supplementary Order Paper 207 in the name of the Hon Christopher Finlayson to omit clause 70(1) and substitute new clause 70(1) be agreed to.

The next amendments in Hilary Calvert’s name to clause 70(1) as set out on Supplementary Order Paper 217 are out of order as being inconsistent with a previous decision.

The question was put that the amendments set out on Supplementary Order Paper 217 in the name of Hilary Calvert to clause 70(2) to (6) be agreed to.

The next amendment in the name of Hilary Calvert is to clause 71 as set out on Supplementary Order Paper 217. The question is that the amendment be agreed to. Those of that opinion will say Aye—

💬 Hon John Boscawen: I raise a point of order, Mr Chairperson. You said “the amendment to clause 71”. There are a number of amendments to clause 71. Are you referring to all of the amendments proposed? Are you referring to just the first one? I could not understand from your call which amendment or amendments you were referring to.

The CHAIRPERSON (Lindsay Tisch): I am advised that there is only one amendment to clause 71, so that is what I am putting.

💬 Hon John Boscawen: I am looking at page 14 of Supplementary Order Paper 217. I can see under clause 71 “Subclause (1): to omit ‘of Conservation’ ”, “Subclause (1)(a): to omit ‘, unless the person …’ ”, “Subclause (1)(b): to omit ‘not’ ”, “Subclause (1)(b): to omit ‘until the’ …”. There are a number of amendments at the bottom of page 14 of Supplementary Order Paper 217.

The CHAIRPERSON (Lindsay Tisch): As I have advised previously with other clauses, there is only one question on clause 71, which covers all those subclauses that you have mentioned. That is how we have previously done it during the course of the votes.

The question was put that the amendments set out on Supplementary Order Paper 217 in the name of Hilary Calvert to clause 71 be agreed to.

The following amendment in Hilary Calvert’s name is to clause 72(1) to omit “40” and substitute “30” as set out on Supplementary Order Paper 217. This is out of order as being inconsistent with a previous decision.

The question was put that the amendment set out on Supplementary Order Paper 217 in the name of Hilary Calvert to clause 72(1) to omit “working days” and substitute “hours” be agreed to.

The next amendment in the name of Hilary Calvert is to clause 72(1), to omit “working days” and substitute “minutes”, set out on Supplementary Order Paper 217. It is out of order as being inconsistent with a previous decision. The next amendments in Hilary Calvert’s name to clause 72(1)(a) and (b) are out of order as being inconsistent with a previous decision.

The question was put that the amendments set out on Supplementary Order Paper 217 in the name of Hilary Calvert to omit clause 72(3)(a) and (b) and substitute new clause 72(3)(b) be agreed to.

I raise a point of order, Mr Chairperson. I realise that voting has to continue until we finish this part, but the ACT Party would have no objection if the Committee wanted to rise early and come back and consider voting tomorrow afternoon.

The CHAIRPERSON (Eric Roy): That is not anything that the member has said except an expression.

The question was put that the amendments set out on Supplementary Order Paper 217 in the name of Hilary Calvert to clause 73 be agreed to.

Hilary Calvert’s amendment to clause 74 to omit “of Conservation” and substitute “for Land Information” is out of order.

The question was put that the amendment set out on Supplementary Order Paper 217 in the name of Hilary Calvert to clause 74 to omit “have regard to” and substitute “be advised of” be agreed to.

Hilary Calvert’s amendments to clause 74(a) and (b) to omit “group” and substitute “customary marine title group and wider iwi, whānau or hapū” are out of order.

The question was put that the amendments set out on Supplementary Order Paper 217 in the name of Hilary Calvert to clause 74(c) and (d) be agreed to.

Hilary Calvert has an amendment to clause 75(1) to omit “grants” and substitute “or Minister for the Environment grants”. That is on Supplementary Order Paper 217. That is out of order as being inconsistent with a previous decision.

The question was put that the following amendment set out on Supplementary Order Paper 217 in the name of Hilary Calvert to clause 75(1)(a)(ii) to omit “40” and substitute “5” be agreed to.

Hilary Calvert has an amendment to clause 75(1)(a)(ii) to omit “40” and substitute “30”, set out on Supplementary Order Paper 217. That is now out of order.

The question was put that the following amendment set out on Supplementary Order Paper 217 in the name of Hilary Calvert to clause 75(1)(a)(ii) to omit “working days” and substitute “hours” be agreed to.

Hilary Calvert’s amendment to clause 75(1)(a)(ii) to omit “working days” and substitute “minutes” is now out of order.

The question was put that the remaining amendments set out on Supplementary Order Paper 217 in the name of Hilary Calvert to clause 75 be agreed to.

Hilary Calvert’s amendment to clause 77(4) to omit “responsible Minister” and substitute “Minister for Land Information” as set out on Supplementary Order Paper 218 is out of order.

The question was put that the remaining amendments set out on Supplementary Order Paper 218 in the name of Hilary Calvert to clause 77(4) be agreed to.

Hilary Calvert’s amendment to clause 78(1)(a) to omit “boundaries” and substitute “boundaries and any significant features” is a duplicate and out of order.

The question was put that the amendment set out on Supplementary Order Paper 218 in the name of Hilary Calvert to clause 78(1)(b) be agreed to.

Hilary Calvert’s amendment to clause 78(1)(c) to omit “individuals” and substitute “individuals and groups”, as set out on Supplementary Order Paper 218, is out of order.

The question was put that the amendment set out on Supplementary Order Paper 218 in the name of Hilary Calvert to clause 78(1)(c) to omit “in relation to” and substitute “within the boundaries of” be agreed to.

Hilary Calvert’s amendment to clause 78(2), as set out in Supplementary Order Paper 218, is now inconsistent and out of order.

The question was put that the amendment set out on Supplementary Order Paper 218 in the name of Hilary Calvert to omit clause 78(3) and (4) be agreed to.

Hilary Calvert’s next amendment to clause 80(2) to omit “$5,000” and substitute “$2,500” is inconsistent and is now out of order.

The question was put that the amendments set out on Supplementary Order Paper 218 in the name of Hilary Calvert to omit clause 80(2) and (3) be agreed to.

Hilary Calvert’s amendment to omit clauses 80(3)(a) and (b) is ruled out of order as being inconsistent and the amendment to clause 80(4) to omit “if—”, was not presented in a proper form and is out of order.

The question was put that the amendments set out on Supplementary Order Paper 218 in the name of Hilary Calvert to clause 80(4)(a) and (b) be agreed to.

Hilary Calvert has an amendment to clause 81(3) to omit “person” and substitute “person or group”. This is now inconsistent with a previous decision and is out of order.

The question was put that the amendment set out on Supplementary Order Paper 218 in the name of Hilary Calvert to clause 81(3) to omit “area” and substitute “area or wāhi tapu area” be agreed to.

Hilary Calvert has an amendment to clause 81(3) to omit “28” and substitute “20”. That is now ruled out of order as being inconsistent with a previous decision.

The question was put that the amendment set out on Supplementary Order Paper 218 in the name of Hilary Calvert to clause 81(3) to omit “days” and substitute “weeks” be agreed to.

Hilary Calvert’s next amendment to clause 81(3) to omit “days” and substitute “months” is now out of order as it is inconsistent with a previous decision.

The question was put that the amendments set out on Supplementary Order Paper 218 in the name of Hilary Calvert to omit clause 81(4) and (4)(a) be agreed to.

Hilary Calvert’s amendment to clause 81(4)(b) to omit “6” and substitute “10” is now out of order as it is inconsistent with a previous decision.

The question was put that the amendment set out on Supplementary Order Paper 218 in the name of Hilary Calvert to clause 81(4)(b) to omit “months” and substitute “weeks” be agreed to.

Hilary Calvert’s amendment to clause 81(4)(b) to omit “months” and substitute “years” is now out of order as it is inconsistent with a previous decision.

The question was put that the amendment set out on Supplementary Order Paper 218 in the name of Hilary Calvert to clause 81(4)(b) to omit “notice” and substitute “discovery” be agreed to.

Hilary Calvert’s amendment to omit clause 81(5), set out on Supplementary Order Paper 218, is now out of order.

The question was put that the amendment set out on Supplementary Order Paper 218 in the name of Hilary Calvert to clause 81(6) to omit “6” and substitute “7” be agreed to.

Hilary Calvert’s amendment to clause 81(6) to omit “6” and substitute “10” is now out of order because it is inconsistent with the previous decision.

The question was put that the amendment set out on Supplementary Order Paper 218 in the name of Hilary Calvert to clause 81(6) to omit “months” and substitute “weeks” be agreed to.

Hilary Calvert’s amendment to clause 81(6) to omit “months” and substitute “years”, set out on Supplementary Order Paper 218, is now inconsistent with the previous decision and out of order.

The question was put that the amendment set out on Supplementary Order Paper 218 in the name of Hilary Calvert to clause 81(7) to omit “the specified time” and substitute “6 months” be agreed to.

Hilary Calvert’s amendment to clause 81(7) to omit “the specified time” and substitute “12 months” is inconsistent with the previous decision and out of order.

The question was put that the amendments set out on Supplementary Order Paper 218 in the name of Hilary Calvert to omit clause 81(7)(a) and (b) and clause 81(8) be agreed to.

Hilary Calvert’s amendment to clause 82(1) to omit “the effective date” and substitute “31 December 2020” is now out of order as being inconsistent with the previous decision.

The question was put that the amendment set out on Supplementary Order Paper 218 in the name of Hilary Calvert to omit clause 82(2) to (4) be agreed to.

Hilary Calvert’s amendments to omit clauses 83 and 84, set out on Supplementary Order Paper 218, are now out of order as being inconsistent with the previous decision.

The question was put that the amendment set out on Supplementary Order Paper 207 in the name of the Hon Christopher Finlayson to the heading to clause 85 be agreed to.

Hilary Calvert’s amendment to omit the heading to clause 85, set out on Supplementary Order Paper 218, is now out of order as being inconsistent.

The question was put that the amendment set out on Supplementary Order Paper 218 in the name of Hilary Calvert to omit clause 85(1) be agreed to.

Hilary Calvert’s amendment to clause 85(2) to omit “on the day” and substitute “48 hours” is now out of order as being inconsistent with the previous decision.

The question was put that the amendment set out on Supplementary Order Paper 207 in the name of the Hon Christopher Finlayson to omit clause 86 and substitute new clause 86 be agreed to.

Hilary Calvert’s amendment to omit clause 86, set out on Supplementary Order Paper 218, is now out of order.

The question was put that the amendment set out on Supplementary Order Paper 207 in the name of the Hon Christopher Finlayson to the heading to clause 87 be agreed to.

Hilary Calvert’s amendment to omit the heading to clause 87 set out on Supplementary Order Paper 218 is now out of order.

The question was put that the amendment set out on Supplementary Order Paper 218 in the name of Hilary Calvert to omit clause 87(1) be agreed to.

Hilary Calvert’s amendments to clause 87(2), set out on Supplementary Order Paper 218, are now out of order.

The question was put that the amendment set out on Supplementary Order Paper 207 in the name of the Hon Christopher Finlayson to the heading to clause 88 be agreed to.

Hilary Calvert’s amendment to omit the heading to clause 88, as set out on Supplementary Order Paper 218, is now out of order.

The question was put that the amendment set out on Supplementary Order Paper 218 in the name of Hilary Calvert to clause 88 to omit “group” and substitute “group or wāhi tapu group” be agreed to.

Hilary Calvert’s amendment to clause 88(a) to omit “on and” and substitute “two months” is now out of order.

The question was put that the amendments set out on Supplementary Order Paper 218 in the name of Hilary Calvert to clause 88(a) to omit “registered” and substitute “received” and to omit “must” and substitute “may” be agreed to.

Hilary Calvert’s amendment to clause 88(a) to omit “have particular regard to” and substitute “consider” as set out on Supplementary Order Paper 218 is now out of order. Hilary Calvert’s amendments to clause 88(a) to omit “area” and substitute “area or wāhi tapu area”, and to omit “group” and substitute “group or wāhi tapu group” set out on Supplementary Order Paper 218 are now out of order.

The question was put that the amendment set out on Supplementary Order Paper 218 in the name of Hilary Calvert to omit clause 88(b) be agreed to.

Hilary Calvert’s amendment to omit the heading to clause 89, set out on Supplementary Order Paper 218, is now out of order. Hilary Calvert’s amendment to clause 89(1) to omit “group and substitute “group or wāhi tapu group” is now out of order as being inconsistent with a previous decision.

The question was put that the amendment set out on Supplementary Order Paper 218 in the name of Hilary Calvert to clause 89(1) to omit “must” and substitute “may” be agreed to.

Hilary Calvert’s amendment to clause 89(1) to omit “on and” and substitute “two months” is now out of order.

The question was put that the amendment set out on Supplementary Order Paper 218 in the name of Hilary Calvert to clause 89(1) to omit “registered” and substitute “received” be agreed to.

Hilary Calvert’s amendment to clause 89(1) to omit “take into account” and substitute “consider”, set out on Supplementary Order Paper 218, is now out of order. Hilary Calvert’s amendment to clause 89(1) to omit “area” and substitute “area or wāhi tapu area” is now inconsistent and out of order. Hilary Calvert’s amendment to clause 89(1) to omit “group” and substitute “group or wāhi tapu group” is now out of order.

The question was put that the amendment set out on Supplementary Order Paper 218 in the name of Hilary Calvert to omit subclause 89(2) be agreed to.

Hilary Calvert’s amendment to the heading to clause 90, set out on Supplementary Order Paper 218, is now out of order as being inconsistent. Hilary Calvert’s amendment to clause 90(1) to omit “group” and substitute “group or wāhi tapu group” is now out of order for the same reason. Hilary Calvert’s amendment to clause 90(1) to omit “of Fisheries” and substitute “of Conservation” is also out of order for the same reason.

The question was put that the amendment set out on Supplementary Order Paper 218 in the name of Hilary Calvert to clause 90(1) to omit “must” and substitute “may” be agreed to.

Hilary Calvert’s amendment to clause 90(1) to omit “on and” and substitute “two months”, set out on Supplementary Order Paper 218, is now out of order.

The question was put that the amendment set out on Supplementary Order Paper 218 in the name of Hilary Calvert to clause 90(1) to omit “registered” and substitute “received” be agreed to.

Hilary Calvert’s amendment to clause 90(1) to omit “have regard to” and substitute “consider”, set out on Supplementary Order Paper 218, is out of order. Hilary Calvert’s amendment to clause 90(1) to omit “area” and substitute “area or wāhi tapu area”, set out on Supplementary Order Paper 218, is now out of order. Hilary Calvert’s amendment to clause 90(1) to omit “group” and substitute “group or wāhi tapu group”, set out on Supplementary Order Paper 218, is now out of order as being inconsistent.

The question was put that the amendment set out on Supplementary Order Paper 207 in the name of the Hon Christopher Finlayson to omit clause 90(2) and substitute new clause 90(2) be agreed to.

Hilary Calvert’s amendment to omit and substitute clause 90(2) is out of order as being inconsistent with a previous decision.

The question was put that the amendment set out on Supplementary Order Paper 207 in the name of the Hon Christopher Finlayson to omit clause 91 and substitute new clauses 91AA and 91 be agreed to.

Hilary Calvert’s amendment to omit clause 91 is out of order as being inconsistent with a previous decision. The Hon David Parker’s typescript amendment to omit clauses 48 to 91 is out of order as a direct negative.

The question was put that the amendments set out on Supplementary Order Paper 211 in the name of the Hon Christopher Finlayson to the proposed amendments to clauses 84 and 91(8) set out on Supplementary Order Paper 207 in his name be agreed to.

I raise a point of order, Mr Chairperson. I had been waiting until the voting on the amendments had finished. I have a query relating to the first page of Supplementary Order Paper 218. You moved pretty quickly through the amendments, but if I am not mistaken you put all four of Hilary Calvert’s amendments to clause 77(4) together. The second and third amendments are contradictory. The second amendment calls for the omission of “as soon as practicable after” and substituting “within 40 working days of”. The next amendment calls for it to be substituted with “within 20 working days of”. Those two amendments are totally contradictory to each other, and I just wondered how we could vote on those amendments together. Surely they would have to be put separately, because they are totally different concepts.

I am not sure I was in the Chair at the time. Advice had been sought in regard to these matters. I say to the member that at the start of each vote quite clearly what was happening has been called. It might have been mentioned quite rapidly, but each amendment was quite clearly set out as to what was being voted on. The exact typescript of every single amendment or amendments was read out, and it was at that time that the member should have objected.