Marine and Coastal Area (Takutai Moana) Bill

Members, I feel that someone should say “groundhog day”. I need to advise members of a vote correction. The result of the vote on Wednesday, on the question of Hilary Calvert’s amendment to clause 37(2), to omit “38 to 44” and to substitute “38 to 44, or to local authorities.”, was incorrectly announced as Ayes 4 and Noes 114. The correct result is Ayes 5 and Noes 114. The record will be so corrected.

I raise a point of order, Mr Chairperson. Could I have clarification as to whether that is because a vote has been corrected or whether there was an addition error, which meant that an adding error got four votes, rather than five?

The CHAIRPERSON (Hon Rick Barker): I cannot tell the member precisely how the error occurred, but the Clerk’s Office has advised me that there was an error. The advice is that the vote was incorrect and needs to be corrected. It has been corrected.

I raise a point of order, Mr Chairperson. I should have thought the Committee was entitled to know whether it was a party correcting its vote or whether it was an addition error.

The CHAIRPERSON (Hon Rick Barker): I can advise the member that if a party had called its voting numbers incorrectly, it would have then been the responsibility of the party to seek the leave of the Committee to correct the vote. That was not the case. So, by deduction, the member is entitled to come to the conclusion that it was an arithmetical error. No leave was so sought.

As you say, Mr Chairperson, we are back on groundhog day, debating the last debatable question in the Committee stage of the Marine and Coastal Area (Takutai Moana) Bill. Of course, we are debating clauses 1 and 2, dealing with the title and the commencement date. I would like to speak on the amendment in the name of my colleague Hilary Calvert, who suggests that this bill might be renamed the “Marine and Coastal Area (Secret Deals Behind Closed Doors Without Public Scrutiny) Bill”, or simply the “Removal of Public Scrutiny Bill 2011”, or the “Secret Deals Bill 2011”.

Alternatively, perhaps Hilary Calvert could have chosen to move another amendment to the title: the “Marine and Coastal Area (Lost Opportunities) Bill”. The reason I say “lost opportunities” is that I am amazed by the number of Government members who have said over the last 6 months that Labour made a mistake. Within hours of the Court of Appeal making its decision known in 2003, Helen Clark walked in where angels feared to tread and decided she would legislate. As a consequence, ever since that time iwi and hapū have felt that they have had their rights taken from them and that they have been denied their day in court.

What have the National and Māori Party responses been to that? It seems to me that the most basic response, and the correct response, would have been to correct Helen Clark’s mistake and simply repeal the Foreshore and Seabed Act. The Māori Party campaigned at the 2005 and 2008 general elections on repealing the 2004 Act. It seems to me that if that repeal had happened, we would not have had the hīkoi marching on Wellington today. Although the Attorney-General thinks he is doing what is best for New Zealanders, the problem with this solution is that we still have a group of New Zealanders who feel as though their property has been confiscated, and that they have been denied the right to have their day in court. The only way to correct that was to ensure that the 2004 Act was repealed, full stop.

But this bill takes fright. National is taking fright, just as Labour took fright in 2003. National was not happy for iwi and hapū to have their day in court. It wanted to set down a number of tests; it wanted to set down the rules, if you like. The Attorney-General has talked about the importance of British common law and of the courts interpreting common law, but in this bill he is actually denying the courts the right to do that. He is actually setting down the tests. In setting down those tests, the ACT Party believes that the Attorney-General is lowering the bar. We believe that large areas of New Zealand that would otherwise not be transferred are likely to be transferred to iwi and hapū, at the expense of other New Zealanders. Equally, we believe that some iwi and hapū may well be denied the right to have their day in court, and denied the right to get what would lawfully be theirs. This bill is not the correct solution. The Government has taken fright.

Not only has the Government taken fright but it has actually misled New Zealanders. I was at a debate last night at the Remuera Rotary Club with the gentleman who sits alongside Mr Chair, the Hon Chris Finlayson. The members of the Remuera Rotary Club invited us to debate this particular issue. It is a tragedy that some of the misinformation that is coming from National was repeated last night at that function. I refer to the continual reference to the need to prove continuous and exclusive occupation. National members have said time and time again that one would need to show continuous and exclusive occupation of an area in order to gain customary title. That is not the case. The Attorney-General knows that there are provisions in this very bill that say it is quite acceptable for other New Zealanders to have fished in a particular area, for other New Zealanders to have boated through a particular area, and for iwi and hapū not to have had exclusive occupation since 1840, but that, nevertheless, we will continue to maintain the charade that they have.

I raised with the Attorney-General at question time today the issue of access to beaches. When the Attorney-General was asked a question about access to beaches at the Rotary Club last night, he said he did not believe that the presence of wāhi tapu would prevent people from walking over an area of the common marine and coastal area—what the members of the Rotary Club would regard as a beach. I actually had to stand up and point out to the members of the Rotary Club that despite the assurance of the Attorney-General, they had only to look to clause 27(2) to see it makes it absolutely clear that the rights of free access are subject to the rights of wāhi tapu. It is there in black and white.

But I also said to the members of the Rotary Club, when I was asked, that the reason this bill is being passed is that most New Zealanders do not understand it. Most New Zealanders have had a gutsful of debating this issue over the last 7 years. It has gone over their heads. National is pushing the bill through the House, and I suspect it will pass its final Committee stage tonight because most New Zealanders have not taken the trouble to find out the provisions of the bill, or because they have been happy to accept what, in our view, are the incorrect assurances of National. I think that is a tragedy, because eventually those New Zealanders will wake up and understand the full provisions of the bill. It is as simple an issue as that. If more people had become aware of the provisions of the bill, and if those provisions had not been misrepresented, I believe we would have a much bigger uproar, and I do not believe that this bill would be passed through the House. One has only to go to the document on the Beehive website that a member of the Rotary Club referred to last night, Setting the Record Straight. As I have said before in this Committee stage, down at the bottom of the page the Government accuses a group such as the Coastal Coalition of spreading misleading information, when in fact the Government is doing that.

When debating the title and commencement clauses of the Marine and Coastal Area (Takutai Moana) Bill there is really only one alternative title that should be considered, and that is the “Foreshore and Seabed Act (Mark II) Bill”, because there is no substantial difference between this bill and the previous Act, the Foreshore and Seabed Act of 2004. The only real difference is that Māori will have access to the courts. But the Māori Party is confusing access to the courts with access to justice, and Māori do not feel that they have access to justice. That is why today a hīkoi turned up in the grounds of Parliament. There is a significant number of Māori who do not feel that they have access to justice because of this bill. It is a Clayton’s repeal—it is the repeal we have when we are not really repealing anything.

Access to the courts and access to justice are two totally different things. This bill is the best the Māori Party could do. This is the best they could do—they can get Māori to go to court but they cannot guarantee justice, because the hurdles Māori have to jump over are too difficult, and will not actually get them what they believe they deserve. This bill is a Clayton’s bill; it is the “Foreshore and Seabed Act (Mark II) Bill”.

Now that the Māori Party members have ticked this off their list, what is next for them? They have put all of their energy into this bill. It is a bill that has basically torn them asunder. What is next? Our people out there have more issues. We do not want to be relitigating this issue every 3 years. I will read out what was reported on 8 September 2010: “The Māori Party will not rule out using post-election negotiations to try to get a better deal on the foreshore and seabed despite agreeing to support the National Party’s new law.” So what they are saying is that post-election, they will be dredging this up again, dredging it up over and over again, every 3 years. Māori have had enough of relitigating these types of issues. It is time for us as Māori to move forward, not to keep bringing up this type of issue over and over again. John Key said he believed it was “a lasting solution to the matter, and would not be revisited.” We heard Te Ururoa Flavell say that this bill was the best that the party could negotiate in the circumstances, and that it was possible that there would be “another time for our people to come back and have another go in the future”. We have missed an opportunity; we have missed an opportunity to settle this issue once and for all. Instead, we have the prospect of coming back every 3 years to relitigate it, to raise it over and over again, when we cannot afford, as Māori, to do that.

💬 Hon Tau Henare: Are you going to make the test easy? No.

We need to focus on the issues that are really hurting Māori, such as Māori unemployment. Under the National Government, of which Tau Henare is so proud, Māori unemployment has gone backwards and New Zealand has gone backwards. What will the Māori Party and National do about Māori teenage pregnancy rates, or Māori suicide rates, or Māori incarceration rates? These are the issues that we need to be debating and making decisions about, so that our people can rise up from the bottom of the pile and get to the top of the pile, where we deserve to be.

I ask the Māori Party what is next, now that it has ticked this issue off the “to do” list. What is it that will really move us forward as a people? We have heard about Whānau Ora. In the Māori Affairs Committee I asked these questions: what exactly would Whānau Ora change or improve, what was the current baseline data, and in 5 years’ time what would show us that Whānau Ora was making a difference? The officials could not answer those questions. They do not know exactly what Whānau Ora will address.

💬 Hon Shane Jones: No idea.

They have no idea. They do not know by how much it will improve. All they know is that this undefined problem will be improved by an undefined amount. They do not know who will do it and who will do what. All they know is that it will cost $134 million over 4 years. It is a bit like Tariana Turia announcing that she is going to build a bridge. She does not know where the bridge will start, where it will end, how long it will be, how many lanes wide it needs to be, and what it will be constructed of. All she knows is that it will cost $134 million.

I ask the Māori Party, now that they have ticked this legislation off their “to do” list—for now—what the next item on their “to do” list is, how they will help lift Māori off the bottom of the pile, and how we will move ahead as a people. We deserve better from this House. We should not be relitigating this type of issue over and over again. We need to focus on those issues that are hurting Māori. Those are my questions for the Māori Party.

This bill should have only one name, and that is the “Foreshore and Seabed Act (Mark II) Bill”. It is the bill that just repeats what has happened in the past. It does not give Māori access to justice, which is what the crowd today was marching for. All it does is give them access to the courts, but it means that the hurdles that they jump are no different; the result is no different.

I want to bring up again the issue about wāhi tapu. John Boscawen mentioned wāhi tapu once more, and I struggle to see how many wāhi tapu have the potential to be excavated, as we heard today, when these wāhi tapu that we are talking about are all below the high-tide mark. There may be wāhi tapu that have eroded into, and become part of, the common marine and coastal area, but I can really think of only one wāhi tapu that would not be eroded and that is the example I raised of the Mātaatua waka sitting somewhere out in Tākou Bay. That I would consider to be wāhi tapu. Who will ever drive their digger out there and excavate it? Who will ever have a picnic there?

💬 Hon Tau Henare: This is 2011, not 1611.

I do not understand what the concerns are with this bill—

💬 Hon Tau Henare: For goodness’ sake.

—preventing people from walking along the coast, walking along the beach, or walking to wāhi tapu. [Interruption] If the Hon Tau Henare were listening, he would know I am backing up his party’s line.

💬 Hon Tau Henare: Sit down and vote for the bill.

I tell the Hon Tau Henare that I am backing up this part of the bill. I do not understand the hysteria of the likes of the Coastal Coalition. They say that as there will be so many wāhi tapu along the coastline, people will be prevented from accessing the beach. We are talking here about the area below the high-tide mark, and it is suggested that wāhi tapu will all be in the sand dunes and that people will be prevented from walking across the sand dunes. To me it is nonsense; it is a bit of a red herring. It is just one of those issues that have been raised throughout New Zealand to generate fear and loathing about Māori.

I also take issue with the point that Mr Boscawen made, that it has not been exclusive as people have been able to fish in particular areas and swim in particular areas. It sounds like what he is wanting is for Māori to have excluded people since 1840 from areas of the coast, in which case Māori would be bagged by all and sundry if we had been exclusive, if we had blocked areas off. We would have been hammered by mainstream New Zealand for not allowing people on to the beach. Now, because of our generosity, we are being slammed and the argument has been undermined, that because of Māori generosity—Māori allowing people access to the foreshore and seabed—somehow we should not now be allowed to have that exclusivity clause in the bill. I think that what the Hon John Boscawen said is at odds with what he wants in the future. He has said that if in the past Māori had been exclusive and prohibited people from accessing the foreshore and seabed for fishing and swimming in particular places, then we would have a right to now exclude people. I do not see the logic of that argument. I think that Māori have been handicapped in this argument through our generosity in allowing people to have rights to the foreshore and seabed.

I thank the honourable member Kelvin Davis for the latter part of that contribution, which I thought hit the nail on the head. I think the confusion that comes out of the ACT Party on this issue is because they do not know the difference between the marine and coastal area and the beach, so all the scaremongering, which was so evident tonight, comes because they presume that we are talking about the beach.

The only example I could give at the great celebrated Rotary Club of Remuera debate last night was about Kāingaroa at the very northern tip of the Chatham Islands, because I think there was an urupā that was very much part of what is called the foreshore and seabed, the common marine and coastal area. The example that the member gave about the waka is another example. So I think it is simply scaremongering. What I find surprising is that when the honourable member John Boscawen was at the debate last night—and maybe we should have more debates at the Rotary Club of Remuera—he was on his best behaviour, but when he comes down to Parliament, I am afraid the honourable member goes feral.

I will say something about clause 77. Let us just go back to basics when we are dealing with wāhi tapu areas. Clause 77(2) states: “A wāhi tapu protection right may be recognised if there is evidence to establish … (b) that the group requires the proposed prohibitions or restrictions on access to protect the wāhi tapu or wāhi tapu area.” It is not carte blanche to stand at the top of a cliff and decide that all before me is wāhi tapu. So, yes, there can be restrictions on the right of access, but the first point is that they have to get to establishing a wāhi tapu area. As I said earlier today in question time, the conditions that may be imposed may be of a temporal kind for one or more defined periods, an indefinite period, a recurring period of a stated kind, or directed to a specified area.

So my advice to the ACT Party is that the wāhi tapu question is a very interesting one but, as Mr Davis so accurately said, it will not be a massive issue in the practical world, simply because we are dealing with wāhi tapu areas in the common marine and coastal area. So stop trying to scare people and, at the same time, diminish the concept of wāhi tapu. Let us concentrate on the issues that divide the parties in this Parliament, and they are codification versus no codification or agreements being permitted. They are the big issues that divide us. The scaremongering and the imbecility have to stop.

Kia ora, Mr Chairperson. Kia ora tātou katoa e te Whare. In talking about the title of the Marine and Coastal Area (Takutai Moana) Bill, I recommend that “Takutai Moana” be removed, because its inclusion insults the notion that the marine and coastal area bill will do anything to help Māori restore their rights to the takutai moana, when in fact all of Māoridom—apart from the four members of the Māori Party caucus, of course—know that it will not do anything of the sort at all.

I also recommend that “Takutai Moana” be removed from the bill because Māoridom has shown clearly that it does not support this bill. In fact, of the 72 submissions that came before the Māori Affairs Committee from organisations such as whānau, hapū, iwi, marae, and other Māori organisations, only one supported the bill, which is a strike rate of about 1.5 percent support. I also suggest that “Takutai Moana” should be removed from the title because the iwi leadership, which was widely touted to be supportive of this bill, withdrew its support from this bill before it even got to this Parliament, and has been notable by its absence in the gallery at every reading of this legislation because it does not want to be seen, in any way, shape, or form, to be supporting this bill.

I also suggest that perhaps the bill might be renamed the “Taku Tāhae Moana Bill”—“My Stolen Seabed Bill”—as in my seabed has been stolen by the Government. It has, no doubt, already mapped out all the seabed around our country and has, no doubt, already identified the kind of corporate entities it intends to do business with, including corporate pirates such as BP and Exxon Mobil, which have demonstrated a ruthless commitment to profit at the expense of the environmental destruction that their industry is noted for.

I suggest that the bill be renamed the “Taku Tāhae Moana Bill” to also reflect the fact that my seabed has stolen by this Government, which plans to ram through the Trans-Pacific Partnership agreement, which will open up all our resources, including our foreshore and seabed, to the international rape and pillage brigade, which will in turn repay the good turn that we are doing it by suing our Government in secret international courts should Māori and other environmentally conscious New Zealanders take positive and concrete steps to protect our seas from the destructive activities of the petroleum industry. Perhaps the bill might be renamed the “Taku Tāhae Moana Bill” to reflect the fact that my seabed is being stolen by the Government, which has already entered into dodgy relationships with petroleum companies that have a record of disaster and mayhem in the oceans of the world, without any formal record of corporate accountability that most other countries would demand of such resource-exploiting agencies.

Renaming the bill the “Taku Tāhae Moana Bill” would also reflect the fact that my seabed has been stolen by this Government, which sees the foreshore and seabed as a commodity from which it can maximise profits to repay overseas debt, all the while ignoring the crippling debt that ordinary New Zealanders are facing up and down the country. Perhaps the bill should be renamed the “Taku Tāhae Moana Bill” to reflect the fact that my seabed has been stolen by this Government, which is committed to entering into contractual relationships with foreign companies that have demonstrated no interest in the needs of indigenous peoples anywhere in the world, or, for that matter, in the needs and aspirations of Māori people or, indeed, of New Zealanders generally.

This bill might rightfully be renamed the “Taku Tāhae Moana Bill” to reflect the fact that my seabed is being stolen by this Government, which has already decided that genuine consultation with Māori is no longer a requirement for the passage of legislation aimed at exploiting resources that are rightfully the domain of whānau, hapū, and iwi. Thank you.

I move, That the question be now put.

I am sure people have been looking forward, since Thursday, to hearing me take a call on the Marine and Coastal Area (Takutai Moana) Bill. It is probably confusing that the Attorney-General sometimes says that access can be restricted in the wāhi tapu area, and sometimes says it cannot. That may be why he is concerned enough to feel the need to be rude about my colleague. It would be helpful if that stopped.

This bill should have been called the “Marine and Coastal Area (Different Rules for Different Races) Bill”. Not only is this one of the worst bills to come before the Committee in living memory, but the entire process has made a mockery of our democracy. The select committee process, at its best, is an example of democracy in action. It listens to the people and recommends changes to legislation according to what the public says. With this bill we have seen the select committee process at its worst. Despite spending month after month travelling round the country, listening to and reading thousands and thousands of submissions vehemently opposed to the bill, the select committee reported back the bill without even one amendment. It was as if there had been no consultation at all. Members of the select committee might as well have stayed at home. Accordingly, the title should be changed to the “Marine and Coastal Area (Abuse of Process) Bill”.

More important, in the end, the substance of this bill flies in the face of the basic principle of equality before the law. The idea that all citizens are equal before the law is integral to all New Zealanders. This bill, however, legislates for the opposite, which is why it should be called the “Marine and Coastal Area (Different Laws for Different Races) Bill”.

The first hīkoi marched for Māori to have the same access to the law as other New Zealanders. We supported that then, and we support it now. Instead, this bill creates undefined and unclear tests, such as “substantial interruption” and “more than minor”, against which Māori have to test their claims for customary title. No other New Zealander has to do that. Māori, like all New Zealanders, should have the right to take grievances to the courts and, most important, to have those grievances measured against common law tests, not vague, ambiguous tests invented by politicians.

Yet another reason to call this bill the “Marine and Coastal Area (Different Laws for Different Races) Bill” is that it provides for a new set of property rights available only to Māori, and will allow some iwi to override the laws of the land in respect of resource management around the coast of New Zealand. The Auckland District Law Society said as much in its submission on the bill, when it stated that the bill gave Māori unjustifiable legal privilege. That is especially the case, as Māori who already own freehold land do not have the right to circumvent the Resource Management Act, nor do they have permission rights that will be granted to them under the bill. The whole idea of the bill undermines the principle of one law for all—a fundamental idea of democracy.

This bill should equally be called the “Marine and Coastal Area (Ignore Public Opinion) Bill”. Early in the process the Prime Minister said that he would proceed only if the bill had widespread support. He promised he would listen to the people. Well, the Government did not listen to the review, it did not listen to the 5,000-plus submitters who wrote in against the bill, and it did not listen to the more than 500 submitters, speaking for hundreds and thousands of others, who came to the hearings. It has not listened to its constituents, and it will not listen to the hīkoi that arrived at Parliament today. The Government just will not listen.

One thing this bill cannot be called is the “Marine and Coastal Area (One Law for All) Bill”. As a country we need to keep talking about what one law for all New Zealanders means. One law is clearly set out in the Treaty of Waitangi. To ignore one part of the Treaty is to disrespect the rest. Successive Governments have strayed from that principle, and this bill is no exception. ACT is the only party that has always argued for equal rights, not special rights. Other parties may not like it, but one law for all is one of the fundamental principles that should guide this Committee in everything we do. This bill breaches that principle. In doing so it disrespects the Treaty.

Tēnā tātou katoa. Today we saw an assemblage of kaumātua and rangatahi, predominantly from the north, bringing their nawe about the seabed and foreshore to Te Upoko-o-te-Ika. In that group today—and this does relate to the title of the Marine and Coastal Area (Takutai Moana) Bill—was Selwyn Murupaenga. It is extraordinary that Selwyn Murupaenga was here in 1975 accompanying Dame Whina Cooper in the Matakite march and that he should find it necessary to come back many years later and repeat his message. Unfortunately, the bill does not settle the issue.

The name of the bill is rather interesting. I will not steal any more of the thunder that Hone Harawira characteristically laces his speeches with. Unfortunately, his loudness of voice is inversely related to his impact on policy, process, and legislation, which voters will note and make a very sensible decision about on 26 November.

The Takutai Moana Bill uses the word “marine”. I want it noted that the original Marines were soldiers. They were sent on vessels at a time when the sailors and other people working on those vessels were press-ganged. What was necessary because of this level of authoritarianism and eventual type of slavery was that the Marines needed soldiers to keep them disciplined. The fact that the bill unwisely uses the word “marine” in the title has little to do with the vegetation that grows in that part of the world’s environment but everything to do with the absolute loss of autonomy, free thinking, and personal sovereignty on the part of the Māori Party.

The Māori Party has had visited upon it the effect of the National Government in the form of some sort of Marine Corps, insisting that it votes, toes the line, and passes this foul legislation. Another thing about the word “marine” is the quality of navigation that is necessary to sail through treacherous seas, avoid the shoals, and keep away from the reefs, etc. The Māori Party’s navigational abilities have failed it. It has unwisely sailed blindly behind Captain Bligh, otherwise known as the Attorney-General. He has unleashed his whip, and today in that somewhat waspish sense that he generally addresses people with, he said he got wet. Of course, we say he is wet behind the ears. The Attorney-General has actually demeaned and weakened the position of the Māori Party permanently and fatally. All will be revealed after the World Cup delivers a result to the Golden Oldies rugby team and the All Blacks.

I come back to the bill. An element about being successful as a Marine is the ability to be amphibious. During the course of the debate, as I dwell upon the full meaning of the title of the bill, I see we have had amphibious-like behaviour from one or three members of National. They have managed to sink themselves into the surf. Now and again they pop up, and then, as they take a gulp of oxygen and are allowed to actually offer their views about Māori politics and legislation, they are quickly pulled down by an undercurrent emanating from the top of the National Government. You see, the Māoris in National are not allowed to speak. They were given 10, 15, or 20 minutes to debate the bill last Thursday, at a time when most people were thinking about the next day in Ōtautahi.

H V Ross Robertson: Going to sleep.

When Tau Henare speaks, no one goes to sleep, because they are reminded of what it is like at 1.30 in the morning when children who have earache, or are teething, are bawling. Those memories are very threatening, which is why when Tau Henare speaks, no one, unfortunately, is able to sleep.

There is a Supplementary Order Paper that deals with the commencement clause. To the best of my knowledge it represents an opportunity to bring the law into full legal effect in a far less circuitous fashion. It was the subject of some debate during the course of the Māori Affairs Committee’s deliberations, so in that sense there is not an inordinate amount of criticism that we can ladle upon the Attorney-General for that, other than for Hilary Calvert’s names and titles. Not only is she worsening her own cause but she is wrong to come to this Chamber and be a parrot for the Coastal Coalition and Muriel Newman. There is an underlying current of banality, hurtfulness, and open, plain bigotry, and ACT members are wrong to be parrots and amplifiers for it. That quality of contribution has no place in this debate.

This debate is about whether a person’s right ought to be determined by having the ability to argue in court in a broad, unfettered fashion or whether they should be constrained and strait-jacketed. That is a decent public policy issue to argue. It ought not to be clouded or undermined by the very sad and, quite frankly, un-Kiwi views that have been expressed by ACT members. Fortunately, 26 November will wash them away in the ebb of the tide, and we will be free of their contributions for the foreseeable future.

Labour members do not agree with the title of the bill. Hone Harawira aptly named it. I want my friend and distant relative from the other side of the Chamber, Tau Henare, to bear in mind that he was press-ganged along with Rahui Katene. They witnessed mutiny in the form of our whanaunga Hone Harawira, the Fletcher Christian of Māoridom. Kia ora tātou.

I move, That the question be now put.