Marine and Coastal Area (Takutai Moana) Bill

When the House rose last night I was speaking on clause 11 and clause 14. Clause 11 is the definition of the common marine and coastal area itself. It refers to that as a no man’s land, in effect, that belongs to nobody. Although it is largely managed and will be regulated by the Crown, it is a political twilight zone, the like of which we have never seen before. It is a political piece of legislation and is not in any way designed to make this, as Mr Key said, “a durable solution”.

I then spoke on clause 14. Clause 14, as members will recall, repeals the Foreshore and Seabed Act 2004. I remind members of what was said about this Act by the regulatory impact statement of May 2010. It stated that “If it was not for the symbolic value of repeal and a desire to address the Crown ownership aspect of the Act, then amendment could be an appropriate solution …”. In other words, the extraordinary divisiveness this legislation has caused would have been unnecessary.

Tēnā koe, Mr Chairman. Kia ora tātou katoa e te Whare. I think it is important for all Māori people who are listening to this debate all around the country and who are watching on Parliament TV to be very, very clear in their understanding of where the Marine and Coastal Area (Takutai Moana) Bill is at and what it will take for it to become legislation. We are currently going through the Committee of the whole House, which is one of the last chances to convince the Māori Party of the error of its ways. Then after that there will be the final reading, after which this bill will become law. I want all Māori to know this because the votes in this Committee of the whole House make it glaringly obvious that if the Māori Party were to withdraw its support for this bill during this stage it would die the death it deserves. This bill is no longer about National; it is about the Māori Party. If Māoridom wants to see this bill end here, then I urge them to contact the Māori Party MPs by email or by comment to the website at www.maoriparty.com.

Hon Trevor Mallard: I raise a point of order, Mr Chairperson. I think this member has one of the loudest voices in Parliament, excepting mine and Mr Quinn’s. But I am having trouble hearing him because of the interjections from Mr Henare and Mr Quinn. It is not as if there is healthy interaction happening; they are just yelling right over the top of him. Can I ask that you take some care of that so we can hear him? This is quite important.

Paul Quinn: Speaking to the point of order, Mr Chairperson.

The CHAIRPERSON (Eric Roy): No, there is no need for the member to speak. I will monitor the matter. Members who have been here through this debate will know that I have kept a fairly cautionary eye on interjections. They should be rare and reasonable.

Paul Quinn: I raise a point of order, Mr Chairperson. I have listened carefully to the first minute of this member’s speech. He is meant to be addressing Part 2. He has not mentioned Part 2 yet.

The CHAIRPERSON (Eric Roy): That is not a point of order.

HONE HARAWIRA: This bill is about the Māori Party. If Māoridom wants to see this bill end here during our discussion on Part 2, then I urge them to contact the Māori Party MPs by email or by comment to their website at www.maoriparty.com, calling on them to withdraw their support and to let this bill lapse.

In speaking to Part 2 of the Marine and Coastal Area (Takutai Moana) Bill, I note that although the bill says it takes away Crown ownership and replaces it with a no-ownership regime called common space, in fact it still leaves statutory authority with the Crown. Thus it continues the confiscation of Māori rights to the foreshore and seabed first established by the Foreshore and Seabed Act in 2004 by simply changing the title of the legislation in 2011 to the Marine and Coastal Area (Takutai Moana) Bill. As my whanaunga Shane Jones rightly pointed out, it is nothing but a legal fiction, a play on words to calm the fears of Māori people. But it is still a confiscation of Māori rights to the foreshore and seabed.

The bill we are discussing tonight raises issues such as those in Part 2, as well as in every other part of the bill that less than 1 percent of Māoridom have seen, leaving hundreds of thousands of Māori people to ask why Māori Party members have not bothered to come back to explain what is actually in the bill, to thank me for opposing it, and to ask why on earth Māori Party members are saying they are so proud to support it. Then, after all the changes made in the Committee of the whole House, including here, where we are discussing Part 2 of the bill, we will end up with a bill that less than 0.01 percent of Māoridom will have even seen before it comes back to the House for its third and final reading. This will happen not just because National wants it to be that way but because the Māori Party has given its full support to the final version of this bill being rammed through the House without Māori people being given any opportunity whatsoever to consider the consequences of a bill that will have long-lasting and probably devastating implications for Māori land rights. That is why Māori people are telling me how angry they are. They are desperately asking me why on earth Māori Party members are saying they are so proud to support this bill. It is a question I simply cannot answer.

The bill ensures under Part 2 that the Government will always have the final say in determining what customary title will be, which is not what we marched for in 2004. So of course Māori people are asking why on earth Māori Party members are saying they are so proud to support this bill, and they are telling me how grateful they are that I am opposing it. Then, after going through Part 1, Part 2, Part 3, Part 4, etc., when they finally get to see the bill—

Hon Tau Henare: I raise a point of order, Mr Chairperson. You ruled earlier on that relevancy was not a point of order. I suggest to you that under Standing Order 107 it is an issue of order. We have been told in this Chamber many a time that we need to concentrate on what is before us—clause, part, or whatever. This is a general debate speech.

The CHAIRPERSON (Eric Roy): The point is a fair point, and I probably did not explain myself particularly well. The member who raised the original point of order got up and made a statement, and never asked a question regarding a point of order. With regard to relevancy, it is an issue that is of importance, but it is one I believe the Chair is monitoring at this stage.

Hon Trevor Mallard: I raise a point of order, Mr Chairperson. Just to be of some further assistance, I say that if members are bringing up points of order it would probably help if they referred to either the Standing Order or the issue. Mr Quinn did not refer to relevancy, nor did he refer to a particular Standing Order. I am sure next time he will get it right.

The CHAIRPERSON (Eric Roy): I am not sure that was helpful. I know the member might have thought it was helpful but I am not sure it was.

Hon David Parker: I raise a point of order, Mr Chairperson. It is of course open to the Chair to determine when there is repetition or irrelevancy, which is relevant to the Chair’s decision as to when he accepts a closure motion. I ask that the Chair observe that there are new matters being raised by the Opposition parties—Labour and some other parties—and that if one particular party is straying from the Standing Orders it does not mean that there are no relevant matters still being raised by Opposition parties.

The CHAIRPERSON (Eric Roy): I am almost offended that the member has to raise that matter with me. I take great care about closures.

HONE HARAWIRA: Tēnā koe, Mr Chair. Tēnā tātou katoa e te Whare. When they finally get to see the bill, Māori will see that under Part 2 of the bill local authorities can apply for compensation at full market value for the loss of any foreshore and seabed they may have under their control. Of course Māori will be asking themselves how come local bodies will get compensation just by asking for it but Māori, before they even get a look in, will have to prove that they have held exclusive use and occupation of the area since 1840, without substantial interruption, and that the area in question was held in accordance with tikanga. They will no doubt be asking again why on earth Māori Party members are saying they are so proud to support the bill, and again they will be telling me how grateful they are that I am opposing it. Māori will know that their own iwi leadership has withdrawn their support for the bill, including for Part 2, raising again the question of why on earth Māori Party members are saying they are so proud to support the bill, and again Māori are telling me how grateful they are that I am opposing it. When Māori realise that of the 70 submissions on this bill—including those on Part 2—from whānau, hapū, iwi, marae, and Māori organisations, only one supported this bill, it is no wonder they are asking why on earth Māori Party members say they are so proud to support this bill when 95 percent of Māori submissions are in support of the position I have taken in opposing it.

That is I why I need to also ask whether the Māori Party knows that under Part 2 of the Marine and Coastal Area (Takutai Moana) Bill roads owned by the Government or anyone else will still be owned by the Government or anyone else, but not by Māori, even if they win their claim. If Māori Party members know that, why on earth are they telling everyone that it is their bill and that they are proud to be supporting it? Do Māori Party members know that under Part 2 of the Marine and Coastal Area (Takutai Moana) Bill any piece of the foreshore and seabed that Māori cannot afford to go to court to get back will no longer be common space, nor will it be held for Māori, but it will go back to the Crown? If Māori Party members do in fact know that, why on earth are they telling everyone that it is their bill and that they are proud to be supporting it? Do Māori Party members know that under Part 2 of the Marine and Coastal Area (Takutai Moana) Bill the Minister of Conservation will be the manager of the common space, and that the Minister of Māori Affairs will not have a role in that management activity at all? If Māori Party members do in fact know that, why on earth are they telling everyone that it is their bill and that they are proud to be supporting it?

Because of those issues I note, too, that Māori are asking some pretty basic questions right now, such as whether this is what Māori people marched for in 2004. The answer is no. Is this what they voted for the Māori Party for in 2005? The answer is no. Is this what Māori wanted out of the coalition with National in 2008? The answer is also no. Is this what Māori expected out of new legislation in 2011? The answer to that is also no.

Yet the Māori Party is saying that this is not National’s bill, it is the Māori Party’s bill, and that it is proud to be supporting it, even though, when Te Ururoa Flavell was asked who was running the timetable, he said it was National, when he was asked who wrote the bill, he said it was National, and when he was asked whose bill it was, he said it was National’s—and even though Tariana Turia said that if we were negotiating on what was fair, just, and moral, then we would have a very different outcome. This bill is not the Māori Party’s bill. Neither is this Part 2 of this particular bill. It is National’s Part 2, and it is National’s bill. It is not true to say that the Māori Party is proud to support this bill, because it does not. The Māori Party caucus supports it—that is obvious—but the members do not. I know that, because I received hundreds of emails, texts, Facebook messages, voicemails, and comments from Māori Party members telling me they were gutted by what their caucus was doing, and they were leaving the party in droves over the Māori Party caucus’s betrayal of this cornerstone issue for the party. Thank you. Kia ora tātou katoa.

I move, That the question be now put.

Before I talk about particular aspects of the Marine and Coastal Area (Takutai Moana) Bill, and, in particular, clause 11, I want to acknowledge the comments made by the previous speaker, Hone Harawira. A lot of what he said was true.

Hon Tau Henare: A new coalition partner?

Hon MITA RIRINUI: I do not have to be a coalition partner with anyone to recognise the truth, I say to Mr Henare. It is interesting—I have a very long memory, and Mr Harawira identified some of the issues that the Māori Party campaigned on in 2005.

As I said, I have a very long memory, and part of my memory is a particular hui in Tauranga, at which the Hon Georgina te Heuheu was present, the Hon Nanaia Mahuta was present, I was present, and the candidate—now the member—for Waiariki was present. We talked a lot about the technical issues of the 2004 legislation.

It is interesting that the very issues on which we were challenged as incumbent MPs are the very issues that are covered in clause 11. One of those issues was that of partnership. As incumbent Labour members at that time, we had to admit that we were struggling for answers. There was an issue associated with partnership. People in our communities could not quite understand why we had accepted legislation that was not very clear about the partnership between Māori and the Crown. I have to say that this bill is even less clear, because it transfers the relationship between Māori and the Crown, established in the 2004 legislation, to a relationship between Māori and an unidentified, undefined group of people called the New Zealand public.

My argument at this time supports that of Hone Harawira. When Māori signed the Treaty in 1840 it was directly with the Crown. Although it has taken some time for us to accept and understand the nature and extent of the relationship, we have, by and large, developed a level of confidence and trust in it. For Māori the question is who we are dealing with now. Who are we dealing with when we sit down with Crown officials and representatives, and Government Ministers, to talk about our customary rights? We are not really sure. We might say that we are right back to where we were in February 1840—there is a lack of trust, a lack of confidence, and a lack of understanding. That is exactly what clause 11 achieves.

At the Māori Affairs Committee it was clear that the vast majority of the submitters—most of them, if not all of them—were totally opposed to the removal of the takutai moana from Crown ownership, because it created an environment of uncertainty for Māori. I am wondering how the member for Waiariki can go out on the hustings to promote this particular bill—which contains the issue that was of concern to him and his colleagues, including Hone Harawira, in 2005—and take ownership of it. That is a very, very unusual move, and Māori, particularly in the central North Island, will not accept it.

I am sure the Hon Georgina te Heuheu is aware of the meeting I mentioned, because she was quite vocal at that meeting, and she condemned particular parts of the 2004 legislation. That being what it is, I have a long memory as a politician, but others have very short memories. In fact, they hate to be reminded of statements they made at any time during their political careers.

Paul Quinn: The worm turns.

Hon MITA RIRINUI: It is interesting that the two people who have interjected the most in this debate are the very two people who were not present at any of those meetings, including the great hīkoi that came down the country, although they have a lot to say about it. I will forgive them for that. One of them just happens to be related to me.

We can understand why the member from Te Tai Tokerau, Hone Harawira, has issues with his former colleagues from the Māori Party. I wonder whether the Minister in the chair, the Attorney-General, will take a call very soon and explain, not only for the members of this Committee but also for the Māori community in general, how this new relationship will work. We have parts of the takutai moana, meaning the dry land, which in Māori terms is part of the takutai moana. Where that is common, it is in Crown ownership, whereas the land that is below the high-water mark—in other words, the wet areas of the takutai moana—is in public ownership. That is how the bill describes the situation to us. This part of the bill is for many Māori communities the area that really requires some clarification, and I hope the Minister takes the opportunity to clarify those points.

The other point that came up at the Māori Affairs Committee was the issue of the extinguishment of customary rights under the 2004 legislation. Given that many Māori were led to believe that customary rights, in terms of their customary rights, are abstract, and did not exist in law prior to 2004—apart from the fisheries settlement, which was pretty clear and defined—exactly which rights were extinguished? That was not very clear, and it is not very clear in Part 2 what rights are being restored as a result of the repeal of the 2004 legislation. I invite the Minister to take the opportunity to clarify that, because I am very interested.

Part 1 discussed codification of customary rights, but it also raised a whole lot of issues to do with the role of iwi in terms of applications to the High Court. Unfortunately, when we go to that level of the judicial system, everything else becomes codified in law. Tikanga becomes codified. Manaakitanga becomes codified—[Interruption]. Yes, it does, I say to the Minister in the chair. When the High Court makes a decision on what tikanga and other customary practices are, it codifies them in law, and that is why Māori were determined that direct negotiations with the Crown were necessary, because in rangatira ki te rangitira there is an understanding about what each other’s values mean.

Unfortunately, Māori see that codification through the High Court process will be a one-size-fits-all approach. If we codify something in law, that is what it is. I give members an example. Te Arawa will have a different definition of tikanga from Mātaatua, and that is good; it is the diversity of the people we deal with and live with every day. Te Ātiawa will have a different definition of what tikanga means to them from that of Ngāti Toa, even though they live in the same geographic area, so that becomes a huge problem, particularly when the High Court, or any court, makes a decision on what those terms mean. For Māori that locks us into an understanding of our own world that we are not comfortable with, and I am sure the Minister will have thought about that.

My whanaunga Paul Quinn will be aware that Ngāti Awa are very, very rigid in terms of their definitions, and no law in the land will tell them any different. [Interruption] If he supports this bill, he will have to explain to them why he supported the codification of their practices for the sake of political expediency. That will be very difficult for him to explain to them. Tau Henare will have to do the same to his Ngāti Hine, Ngāti Wai people. That is the difficulty we have here, and that is the value, as Apirana Māhuika would have said in direct negotiations with Crown Ministers over the customary interests of Ngāti Porou on the East Coast. He sat down with Crown officials and Ministers and told them what it meant for Ngāti Porou, and that was accepted. There was no argument about it. The Crown, however, said: “This is our tikanga.”, and Ngāti Porou accepted that. By mutual agreement a deal was done and an outcome was achieved. It was signed off, and the Minister in the chair, the Hon Chris Finlayson, was fortunate to have been able to sign it off.

But the value of that relationship has now gone, because we are talking about codification. Everything that Māori once believed in will be codified in law, particularly where takutai moana is concerned. That in itself is an extinguishment of our practices. Kia ora.

I move, That the question be now put.

I am pleased to speak to Part 2. Having listened to earlier contributions, I think the member for Te Tai Tokerau got it just about right when he highlighted where Māori opinion is with regard to this takutai moana legislation. He wrapped it up in eight succinct words: “This isn’t what we marched for in 2004.” The then aspirants and candidates for the Māori Party went out across the country to promote exactly what was wrong with the 2004 legislation and did so in many forums. With regard to Part 2, and specifically clause 11(2), when the concept of public domain was initially raised by Labour, Māori did not like it and National did not like it, so it went out. When the issue of Crown ownership was raised, Māori did not like it, yet all of a sudden the Māori Party is going out and promoting common space as if, for some great and glorious reason or miracle, Māori have all of a sudden changed their minds.

I think the member for Te Tai Tokerau had it right: Māori did not like it then, they do not like it now, yet the Māori Party has changed its stripes. One thing we can always say about the member for Te Tai Tokerau in terms of where the Māori Party is at on this issue is that the member is absolutely telling the truth. Those members are finding it difficult to promote a bill that, in their heart of hearts, they know Māori do not want. There are inherently wrong concepts in this legislation that people did not like then and do not like now. The Māori Party should vote against the bill if it is being true to its word of having the moral mandate to represent the opinion of Māori in this Chamber. Those members campaigned long and hard in 2004 on the principles that they are now changing their stripes on, and that is inherently wrong.

There are specific issues in clause 11 that we should be debating. Subclause (2) states: “Neither the Crown nor any other person owns, or is capable of owning, the common marine and coastal area, as in existence from time to time after the commencement of this Part.” I ask the Minister in the chair, the Attorney-General, a question in relation to his negotiations with the Māori Party in that respect. I ask what he was able to convince them of that was so much better than Crown ownership, because every submission, and certainly in the brief that we have had from officials, highlights—

Paul Quinn: Nanaia, where does Tainui stand?

Hon NANAIA MAHUTA: Tainui stands where it has always stood, and it will preserve its interests on much of the coastal area through the Treaty claims settlement process. That was the case in 2004 and that is the case now.

Paul Quinn: They support it.

Hon NANAIA MAHUTA: I will debate that at any time, anywhere, with that member in my electorate.

Coming back to clause 11(2), I ask the Minister how he was able to convince the Māori Party that common space was so beneficial to the interests of Māori when they assert their customary title interests. My reading of Part 2—and I stand to be corrected, if the Minister would take a call—is that any customary title is secondary to the interests represented in the common space. For example, none of the submitters highlighted that they were comfortable with the idea of common title. They said that it is largely symbolic, and the fact that the Crown retains much of its authority over that space clearly highlights that customary title will be secondary to the intention of this bill. I would be grateful if the Minister took a call, because the submissions highlighted those matters. There was not enough time in the Māori Affairs Committee to go through these matters in some detail with officials. I think that is the height of arrogance when submissions raise matters that are not responded to in the fullness of time to ensure a full, lengthy, and thorough debate.

Paul Quinn: We had plenty of time. Some of us actually read it, Nanaia.

Hon NANAIA MAHUTA: The member may call across the Chamber to try to shout me down, but that same member will not debate these issues in my electorate, which I challenge him to do at any time, any place, anywhere. I ask him to be there, because I will be.

Moana Mackey: It’d help if he would do some work-outs in this place.

Hon NANAIA MAHUTA: It would. It certainly would, but that is not going to happen.

Having had my speech interrupted because of Mr Quinn, I will now highlight some of the issues related to the points made by Local Government New Zealand. I will cut straight to the questions, because I think they hit at the nub of undertakings on divestment in clause 11(3). I ask the Minister what guarantee he will give to local authorities that land in the takutai moana area that was acquired after 2004 will be compensated for. I also ask how that compensation level will be set, because my understanding of subclause (5) is that the takutai moana area is not a rateable area. I ask how the level of compensation will be set. When we have an opportunity for the Minister to respond on this matter, I certainly think that Local Government New Zealand and a couple of local councils will be quite interested in his response.

I also ask the Minister what happens to unformed roads in the coastal marine area and whether they will be included in terms of the divestment provisions of clause 11. I would appreciate it if the Minister would take a call and provide some clarity on this issue. For a number of local authorities, the way to treat unformed legal roads is a vexed issue. I would appreciate it if the Minister would take a call on this matter. I know that submitters raised it as an issue. It would be helpful to get that clarification to provide a level of certainty to Local Government New Zealand on the matters it highlighted in its submission on the bill.

I continue to say that one of the things I find absolutely incredible is the Māori Party’s changing of its stripes on the issue of common space. It is the one key point that I want to make in my first contribution to this debate. At the time when the issue of public domain was raised initially, the then aspirants to the Māori Party were absolutely opposed to that concept. They were also absolutely opposed to the concept of Crown ownership, but somehow or other, somebody has said something to persuade them to say that common space is of far greater benefit to Māori than anything else.

Māori Party members should stand in the Chamber and explain their position to at least the members of the House. It is all well and good to hold hui outside this place and try to promote something while everybody is saying: “Hang on, you have changed your stripes.”, but they are unable to present to the House as a coalition partner to the Government the principled basis on which they now support the idea of common space, as contained in clause 11(2) in Part 2. They will not explain it to members. They are treating members with disregard and disrespect. That is the height of arrogance on a bill so important to the nation of New Zealand and so important in terms of ensuring what we had hoped would be a common opportunity for members across the House to find some common ground. Clearly, there is not that opportunity, and the Government will continue to ram this bill through.

The Minister has those questions on the record. I hope that in the course of this debate he is able to respond to those questions. I believe that it is also beholden on Māori Party members to respond. Having the moral weight of Māori opinion on their shoulders, they should demonstrate that they are true to their word, will walk their talk, and will make good on the commitments that they say are being supported by a number of Māori throughout the country. Clearly, the member for Te Tai Tokerau has got it just about right: everybody has been duped by the Māori Party.

I move, That the question be now put.

I am pleased to take a call—

Hon Tau Henare: I raise a point of order, Mr Chairperson. That member was sitting on his behind; he did not even call and you called him.

The CHAIRPERSON (Eric Roy): The member called at the same time as the member who took the call. I did not look up, but I registered him as a member who had not had a call at that point, so I have given him the call.

Hon DARREN HUGHES: Thank you, Mr Chairman; there is no one as angry as a former talkback radio host.

Hon Trevor Mallard: I raise a point of order, Mr Chairperson. I apologise to my colleague for making him sit down. Given the ongoing flouting of your ruling by Tau Henare, who was calling across the Chamber after my colleague was invited to speak and had started speaking, which is when that member should have sat down, I think it might be time for you to educate him on the rule that when the presiding officer is ruling, a member does have to sit down.

The CHAIRPERSON (Eric Roy): Points of order will be heard in silence. I will manage the Committee. I am fully aware that there is quite a bit of passion over this bill. I am endeavouring to give a fair call for both sides.

Hon DARREN HUGHES: It is a pleasure to take a call on Part 2 of the Marine and Coastal Area (Takutai Moana) Bill. I have listened to the member opposite, the former member of Parliament for Te Tai Tokerau, interject wildly on all the members who are speaking in this debate.

One of the questions he has put to members on this side of the Chamber is what the position was of certain members in 2004. We never need to ask what the position of Tau Henare was in 2004, because we know what it was. He was on talkback radio, as a Newstalk ZB host, praising Don Brash’s position on this legislation. If members opposite want to raise the question of his position, I say that he was in favour of Don Brash’s position. Remember, Don Brash’s position was that the existing Foreshore and Seabed Act gave Māori too many rights. The Māori Party’s position on the Foreshore and Seabed Act was that it gave Māori too few rights. This is the great reconciliation of the position on Part 2 today: trying to marry together the position of the old National Party—when Tau Henare was in talkback radio land making sure that the supporters who put him into Parliament on the National Party list were against the bill—and lining up the interests of the Māori Party on Part 2.

Paul Quinn: What has radio got to do with Part 2?

Hon DARREN HUGHES: I say to Paul Quinn that we are on Part 2 of the bill. The reason Paul Quinn will not know about Part 2 of the bill is that he has not made a single contribution to the debate. He is sitting here in Parliament with the other National MPs taking a pause from proceedings, only to clear their BlackBerrys of the emails from their supporters opposing Part 2. The only time those members take a break from interjecting is when they are deleting like crazy the hundreds of emails they are getting from people—their own supporters—who think this is bad legislation, and none of them has the gumption to get up on their pins to speak about why Part 2 is important.

I will ask the Committee some questions about Part 2, particularly clauses 11 and 17. They are the parts I want to focus on this afternoon. I ask the Minister in the chair, the Attorney-General—

Hon Trevor Mallard: I raise a point of order, Mr Chairperson. Again I apologise. This member is not a quiet member, but there appear to be two members opposite who can yell and stand, but not do both at the same time. I ask you to keep them a bit quieter.

The CHAIRPERSON (Eric Roy): The member raises a valid point of order in this respect. I have constantly asked the Committee that interjections be rare and reasonable, and that there be no barraging. At the same time, the member who raised the point of order should not say disparaging things about another member, so I caution him on that as well. Remember that interjections should be rare and reasonable.

Hon DARREN HUGHES: I will take my time now to discuss clauses 11 and 17 in Part 2, particularly as they affect the mining sector. The departmental report, which I know was not considered in any enormous detail by the Māori Affairs Committee, sets up a lot of what the issues are in this part of the bill. I will go through what some of those issues are and seek a response from the Attorney-General to see whether the Committee of the whole House can get a sense of what direction the Government is heading in with them. We have heard from Māori Party speakers that this bill advances the position of Māori, yet the departmental report raises a number of issues about ownership and the ability for minerals to be explored and extracted from the coastal and marine area. It is not entirely clear why New Zealand Steel and the New Zealand Minerals Industry Association have expressed such enormous concern for the ability of their industries to participate if these clauses are passed. I note that New Zealand Steel submitted that the bill would have “a significant dampening effect on investment in the minerals and mining sector, because it insufficiently protects existing rights and consented activities, and also thwarts future development.”

I would like to know from the Minister in the chair, the Attorney-General, whether in regard to his bill—either the bill he has presented, which has not been amended by the Māori Affairs Committee, but certainly the bill and his, I think, 75-page Supplementary Order Paper of amendments—he is satisfied that the amendments he is pushing forward do answer those concerns about those clauses. If we go particularly to clauses 77 and 78, dealing with the protection of wāhi tapu, it is clear from the position of other speakers in the Committee that somehow these are enhanced for Māori interests or groups who are seeking customary and marine title, yet when the departmental report gets to the commentary of the Government’s position, it states that the Government’s intent is for the existing use rights to be protected until the end of their term. At the point when they come up for renewal, I ask the Minister in the chair whether this part of the bill kicks in to provide for differing rights for iwi, hapū, and whānau groups who are seeking customary and marine title, than would otherwise be the case if they did not need to use this vehicle or these clauses. I think that is a tension within the bill that—

Hon Tau Henare: So what does Ngāti Porou say?

Hon DARREN HUGHES: Well, Ngāti Porou, of course, negotiated a deal under the existing Foreshore and Seabed Act. Ngāti Porou did not need to have the coastal and marine bill, as many of National’s supporters are saying to those members in their email.

But I want to come back, and not be interrupted or taken astride by those members opposite, to say that Ngāti Porou were able to use the existing legislation to do that. I am trying to get some indication from the Minister—

I move, That the question be now put.

In Part 2 of the Marine and Coastal Area (Takutai Moana) Bill I will speak about clauses 11, 24, and 27. I will start with clause 11, which we have heard a bit about already, as members have been talking about the special status of the common marine and coastal area. Clause 11(2) states: “Neither the Crown nor any other person owns, or is capable of owning, the common marine and coastal area,”. My question—and I would like the Minister in the chair, the Attorney-General, to take a call, as clearly we would like other questions to be answered tonight, too—is whether, if the Government does not own and is not even capable of owning an area, that area is still part of New Zealand at that point. Although the bill seeks to clarify this issue by stating that this legislation does not affect the sovereignty of New Zealand, it is certainly unclear how an area of some hundreds of thousands of square kilometres, which has been owned by the Crown since the territorial waters limit has been 12 nautical miles, can become an area that the Crown neither owns nor is capable of owning.

Clause 24 talks about land in the common marine and coastal area, and land above the line of mean high water springs. During the hearing of submissions in the Māori Affairs Committee much was made of the idea that 12,243 private land titles exist in the foreshore and seabed. That figure is correct, but it is quite misleading. It has been argued, quite reasonably, that if we are happy to give freehold titles to many other people in the foreshore and seabed, then why should we not allow freehold title to go to Māori. ACT believes that it is for the courts to decide, on the basis of common law property rights, the extent of any property rights granted, whether they be freehold title or otherwise.

In dealing with this bill, however, it is important to understand that only 48 freehold titles have been issued in the foreshore and seabed. The rest of those 12,243 titles have been created by legislation and the forces of nature. Freehold title abutting the edge of the foreshore has, for many years, been defined as ending on the seaward side at the mean high-tide mark. When a definition was made of the foreshore and seabed the landward edge was defined as the “mean high-water springs”, which is a tad further away from the sea than the mean high-tide mark. As a result, this definition captured a sliver of land in about 11,000 titles, and redefined those titles as part of the foreshore and seabed. Another thousand or so titles have become part of the foreshore and seabed as a result of erosion. The edge of the land in those freehold titles has been taken by the sea, leaving a part of the title under the sea and therefore part of the foreshore and seabed.

So, apart from the titles that the Government has redefined into the foreshore and seabed, and the titles that nature has taken into the sea, there are only 48 titles that have been granted to the foreshore and seabed in the whole of New Zealand. Those titles cover a tiny 2.6 square kilometres of our hundreds of thousands of square kilometres of territorial seas.

I come to clause 27. After ACT pushed the Government into accepting free access, it was not guaranteed in the original draft of the bill. The Attorney-General’s proposed amendment guarantees free access only for the individual, an expression that, typically, has a limited legal definition. When my colleague John Boscawen asked the Attorney-General whether this guaranteed everyone free access he, true to form, could not do so. Any member of the public would look at this clause and wonder why only the individual is protected. Why not insert the word “group”? Can we imagine a group going to the beach and being told that they must pay for access? I can, because the people who threaten and cajole the public now will continue to do so once this bill is law. The Attorney-General has just made it a whole lot easier for them to do so. ACT has heard accounts of people who, while having picnics, taking wedding photos, or just going for a walk, have been threatened or told to pay up. Nothing in this clause will discourage that from happening in the future. ACT has put forward a Supplementary Order Paper that makes it clear that anyone and everyone should be able to enjoy our foreshore and seabed, free of charge.

The Hon David Parker made a comment yesterday about this clause, as did the Minister. Part of the confusion that the Minister may have had seems to come from the unfortunate use of the word “access”. For most people the idea of access encompasses the idea of movement across something or to something. But this bill is not about providing access to the foreshore and seabed. The entire clause concerns what may be done by those who are on the foreshore and seabed.

I come now to the ACT Party—and this is where the Hon David Parker was going yesterday, when he asked us a question. He asked us why, if we are the party that wants to support property rights, we would deny the holder of a customary marine title the ability to charge. The ACT Party supports the right for anyone to go to court—

Kelvin Davis: No, he said “use”. He said: “use the foreshore.”

HILARY CALVERT: Sorry, I am corrected. The Hon David Parker said that we were against people charging to use the foreshore. We support the right of anyone to go to the High Court to have a determination of their common law rights. This bill takes away those rights. It allows for the possibility of a very different and novel sort of property right, one that does not need to be tested by the courts. It takes away the right to go to court for the establishment of common law rights, and it replaces that with the right to go to court in a limited and very different way. The novel sort of property right that the Minister seems determined to create is one that does not need to be tested by the courts, and one that gives rights that override the resource management rights of others.

We in the ACT Party support and defend the rights that the court provides, including the right to charge and the right to deny access to others if the court so determines. We do not support the ability to go to the Māori Land Court, which was mentioned earlier as being the appropriate place to go to. For the ACT Party the High Court is the right place. These rights are common to everybody; they are common law rights. They are not rights that are specifically to do with Māori in New Zealand. The property that we are discussing—the whole purpose of the bill—is the total property in New Zealand—

Hon Georgina te Heuheu: What’s wrong with that? They’re still rights. They’re still legal rights.

HILARY CALVERT: They are legal rights, but they are not rights that are in some way only the interests of Māori. Those rights are the interests of everybody in New Zealand. They are appropriately transferred if the courts decide on that. The Treaty of Waitangi gave everyone in New Zealand the ability to go to the courts in the same way that British subjects could. The courts that we go to—the whole lot of British subjects in New Zealand—are the courts that the High Court system is part of. If we go only to the Māori courts for those rights, then we are talking about a huge chunk of land that, despite the fact that the Government has disowned it and for some reason does not feel comfortable about owning any longer, New Zealanders still consider they have an interest in. That is not just Māori New Zealanders but all New Zealanders. It is a strange thing that the Government wants to—

I move, That the question be now put.

I think there is a bit of inconsistency in ACT’s position. Hilary Calvert said there is not really much private land in the foreshore and seabed; there is just a bit as a result of erosion. She talked about how to define the high-tide mark and about how 48 other grants of title amounted to not much land, so we should not worry about it, at all. Well, why then in Part 2 of the Marine and Coastal Area (Takutai Moana) Bill exclude—and I think ACT probably supports this position—private title land from the application of the common marine and coastal area, all the access provisions, and all the rest of it?

It is inconsistent that Māori customary title land should be subject to full access. The legislation states that every individual has the right “to pass and repass in, on, over, and across the common marine and coastal area; and to engage in recreational activities”, etc., yet, for private foreshore and seabed land, that right does not apply under clause 19. Surely, if we are to be a fair society, that inconsistency should be redressed, and the private title should not be sacrosanct in terms of public access.

Hilary Calvert says that that provision does not relate to general access to the area. In fact, I think what Parliament should address and develop—and, unfortunately, this bill does not do so; attempts have been made with committees and all kinds of things, but they really have got nowhere—greater access to the seashore for all New Zealanders.

There have been some big fights over this issue. On Waiheke Island John Spencer prevented public access for people on Waiheke Island to the beaches his land surrounded. If one looks around the world one sees other examples—for instance, in Britain. I was over in Britain a few years ago when my brother used to live there. He lives in Wellington now. We went for a walk. They had not only all sorts of alleyways that people could use everywhere in the countryside but also what was called a right to roam, whereby one could—

Hon Tau Henare: Over private property?

KEITH LOCKE: Yes, over private property. The right to roam was well established and supported by the people of Great Britain. We should have something similar to that system in New Zealand, so that all the pristine beaches we have are accessible instead of being shut off from ordinary people who cannot get to those beaches. Sometimes boaties can get to them; they are usually the richer section of the population.

The right to roam relates to another project, the great project by Geoff Chapple of Te Araroa, “the long pathway” around New Zealand. A lot of that pathway is around the coast, and having provisions for greater access to the coastal area would help with the continuity of those paths, in order for people to be able to enjoy the scenery along the waterfront around this country.

It is important that we try to redress this access issue in the Committee stage. Unfortunately, clause 19, which excludes private property, contrasts with clause 27, which gives all of the rights of access to every individual in relation to what could be Māori customary title, and that just does not wash. The Green Party is very much against that contradiction and would like greater rights for New Zealand people as a whole and greater rights for Māori people—greater rights than exist under the bill.

I move, That the question be now put.

I raise a point of order, Mr Chairperson. Kua rongo ake i te āhuatanga o te kōrero o te mema o Te Tai Tokerau. Ko tana kōrero, kei te whakaae te whānau. Ko te whānau anō te whānau, ko te mema Pāremata anō te mema Pāremata. Ko te tikanga, ka riro māna tonu e pōti mōna ana. Nō reira, koi nei te tikanga o taku kōrero, hei wānanga māu.

[I heard what the member for Te Tai Tokerau said. He said that the family agrees. “Whānau” is family, and “mema Pāremata” is member of Parliament. According to procedure, he must cast his vote for himself alone, as he is a member of Parliament. So that is the nub of my point of order for you to rule on.]

Although I was not wearing the earpiece I was getting a translation of the speech, which, I think, could well have been different from the interpreter’s translation that was coming through the earpiece to the Clerk. There is in my mind no doubt that not only that vote but at least one earlier vote was cast in a way that could only be considered irregular. I waited until the end because we know we are not allowed to interrupt during the declaring of votes, but now that a point of order has been raised I think it is appropriate to agree with the member. I think that now we probably have to clarify the earlier votes of the member, because, as Mr Flavell has pretty clearly put it, he has not voted Aye or No; he has basically said what his mother thinks.

I hear the member. Certainly the interpretation that came through to the Clerk was a vote against. In answer to the member’s question about whether someone casting a vote can do so in a manner that is not necessarily the way we normally do it, I would say that if the intent is clear, then the intent is the guiding factor—one can determine what the intent is. As to what the member’s view was in this matter, I am seeking advice at this time, because I do not—

Hon Trevor Mallard: Can I say something?

The CHAIRPERSON (Lindsay Tisch): I invite the member to state a position.

I think I can understand the second time the member did it; it was, I think, slightly different from the first. What he effectively said, in a rough translation, was “This is the view of my family.”, rather than indicating a specific vote in a particular direction. As to your comments, Mr Chairman, that as long as you know the intent then that is OK, I think if you look at that you will find that it would not work very well. I could make a speech about how my friends—I am an old member of the engineers union and the Wainuiomata rugby club, and I have friends on Facebook—all have a particular view on this legislation. But I do not think you would be any wiser about which way I was voting, and I think that if members were making speeches instead of voting it would take a long time.

I hear the member. I have sought advice on this matter. Nothing in the Standing Orders or in Speakers’ rulings describes the way in which members should cast their votes. As I said, if the intent is clear and the number is mentioned as being opposed—which it was—then that is acceptable to the Chair. The matter rests there. I take on board the point of order the member Te Ururoa Flavell raised, but in the absence of any Standing Order or any Speaker’s ruling I have ruled that if the intent is clear, and if one knows exactly what the member is saying in casting a vote, the Chair will accept it.

He take whakatau, e te Heamana. Pai tērā whakamārama. He āhua rere kē te kōrero a te Hon Trevor Mallard. Kāre ōku raruraru ki te kōrero o te mema o te Nōta me tana kī mai kei te whakaae tōku wairua, kei te whakahē rānei tōku wairua. Kāre au i te whakahē i te kōrero, kei te whakaae tōku mana, kei te whakahē rānei tōku mana. Ēngari, ko te rerekētanga i tērā pōti, ko te kōrero whānau. Ka kī mai te mema, kāre tōku whānau i te tautoko. Nō reira, ehara i te mea nōna tērā whakaaro, nō tōna whānau kē. Koi nā te tikanga o taku whakahē.

[I raise a point of order, Mr Chairperson. The point made by the Hon Trevor Mallard is slightly different. I do not have a problem when the member for Te Tai Tokerau says he is in favour spiritually, or opposes it spiritually. Or if he says that his integrity is in favour, or against it. But where that vote differs is when it refers to family. The member said to us “My family opposes it.” But that is not his point of view; it is actually theirs. And that is the reason for my point of order.]

I thank the member for those comments. We have not come across this situation before. I am saying that in the absence of any Standing Order or Speaker’s ruling, if the intent is clear and we know the number of votes being cast, then that is acceptable to the Chair, and we will leave it at that at this point.

I raise a point of order, Mr Chairperson. The problem I have is that although the general direction is probably clear, I do not think that it is absolute. Again, I have colleagues translating for me on both sides, and they are saying that effectively the member said that his family is opposed to this particular measure. Is that roughly it? Yes. Mr Flavell was offended by the inclusion of the word “family”; he brought up the issue on that basis. My view is that there are occasions on which I, as a member of Parliament, cast votes in ways that are different from what my family thinks on particular issues. I think it is important—in fact, it is vital—that we get a clear indication from the member of what his view is.

I apologise to the Committee. There is, in fact, a Speaker’s ruling. I refer members to Speaker’s ruling 67/7: “On a party vote, the Clerk names the party by its official name and the whip responsible for voting then gives the vote. No other comment at all is allowed.” That is the ruling. I trust that it satisfies the member who brought the matter to our attention. There is a Speaker’s ruling and I refer to it again: it is Speaker’s ruling 67/7. I ask the member that in casting future votes he complies with the Speaker’s ruling that I have outlined.

I raise a point of order, Mr Chairperson. It is a relatively short one. It is to seek an assurance through you, Mr Chairperson, that the member involved had his vote recorded in the way that he wished.

The CHAIRPERSON (Lindsay Tisch): The translation is coming through very clear. I have no doubt—

Hon TREVOR MALLARD: But he did not hear the translation.

No, but we cast the votes here; we know what the votes were. I hear what you are saying. My position, as I said earlier, is that the intent was known, and that is what I ruled on earlier. The member, if he wishes, has the opportunity to hear what the translation is; it is a matter of his discretion whether he wishes to avail himself of it. At this stage that is where the matter lies. Did the Hon John Boscawen have a point of order?

Can I finish this one? You have indicated that the member has the ability to listen to the translation. It is in fact very hard to stand up with these earpieces in; the earpieces are set up so that people sitting down can hear them.

Right. I will ask the member to confirm that he was voting against, with one vote. Is he confirming that?

Hone Harawira: I do confirm.

The CHAIRPERSON (Lindsay Tisch): On both occasions?

Hone Harawira: On all occasions.

I raise a point of order, Mr Chairperson. I would like to raise two separate issues. Members may wish to speak on either one or both of the issues, and you may need to rule on both of the issues. For the sake of convenience I will speak on both issues at the same time. My understanding from listening to the discussion of the last 10 minutes is that Mr Mallard stood up to say that he has been getting a literal translation, presumably from Mr Parekura—

The CHAIRPERSON (Lindsay Tisch): Come to the point of order. This is not a debate. I want to hear the point of order specifically, not a debate.

Hon JOHN BOSCAWEN: It seems to me that what has happened in this Chamber is that Mr Horomia has been providing a translation that is different from the official translation—

The CHAIRPERSON (Lindsay Tisch): That is not a point of order. We get an interpretation here. That is what the Clerks at the Table do. I have asked the member to confirm the vote he was given and he has confirmed it—end of story. We are moving on.

I raise a point of order, Mr Chairperson. With the deepest of respect, you say you are getting a translation, but is it a correct translation?

The CHAIRPERSON (Lindsay Tisch): I have just asked the member to confirm the vote he cast. He confirmed it to the Committee—end of story. I put that question to him. It is all over. He said that what he cast was the correct vote, and that is the interpretation we got. We are now moving on. I do not want to enter on any further discussion on this matter.

I raise a point of order, Mr Chairperson. I am very sorry, but it seems to me that Hone Harawira was using the word “family” or “whānau”, but the official translation did not say that. How can we be satisfied that the official translation is actually correct?

Sit down! I have just quoted the Speaker’s ruling on what the member should do. I said earlier that if his intentions were known, then, from my point of view, that was satisfactory. I asked the member to confirm quite clearly what his intent was, and he said he voted against. That was very clear as far as I am concerned.

But let me draw your attention to Speaker’s ruling 37/2 on the interpreter’s role: “The process of interpretation is not merely a matter of transliterating word for word from one language into another. Especially with languages as different in their origins as English and Māori, this is not possible.” Speakers’ ruling 37/3 states: “The object of interpreting into English is to enable members listening to the member’s speech to have a reasonable, but not necessarily total, understanding of what is said. As all members have good facility in English it not necessary to interpret English into Māori. Interpretation is undertaken only when there is a practical need to do so.” I am very satisfied that the answer we got satisfies all—[Interruption] We are not carrying on with this. I have made the points.

I raise a point of order, Mr Chairperson. I think we have what could become a serious issue. That Speakers’ ruling is well known. I think it relates to interpretation of long passages. Hansard reporters are very kind and do some tidying up for us; they put down what we meant to say if there are minor errors in our speeches. I am nearly at the point.

The CHAIRPERSON (Lindsay Tisch): Please come to the point of order.

Hon TREVOR MALLARD: The point is that it appears that the interpreter is tidying up for, and bringing within the Standing Orders, the comments of a member who is clearly outside of the Standing Orders.

The CHAIRPERSON (Lindsay Tisch): I asked the member in all good faith. The member’s word was taken that he voted against. I put that question to him, and he said he voted against. I have taken the member at his word. That is the end of the matter. Let us move on.

The question was put that the amendment set out on Supplementary Order Paper 214 in the name of Hilary Calvert to clause 18(2) be agreed to.

I raise a point of order, Mr Chairperson. On that occasion, to test our system I voted with additional material. I just wanted to check whether the interpretation included that additional material. If it did, it should have been corrected at the time.

The CHAIRPERSON (Lindsay Tisch): The interpreter’s job is to tell us what the vote is. I got the vote, and that is what was recorded. We have announced the votes.

I raise a point of order, Mr Chairperson.

The CHAIRPERSON (Lindsay Tisch): You are trifling with the Chair.

Hon TREVOR MALLARD: No, Mr Chairperson.

The CHAIRPERSON (Lindsay Tisch): You are trifling with the Chair. I have already ruled.

Hon TREVOR MALLARD: This is a new point of order. Are you indicating to the Committee that it is permissible to be out of order in Māori, but not in English?

The CHAIRPERSON (Lindsay Tisch): The interpreter’s role here is just to announce the result. We got the result: it was 42 votes opposed for Labour. That is what has been recorded, and that is what was announced. We will now move on to Hilary Calvert’s amendment to clause 18(3) as set out on Supplementary Order Paper—

Hon Trevor Mallard: Point of order—

The CHAIRPERSON (Lindsay Tisch): I am not entertaining any further—

I move, That the Speaker be recalled in order to make a considered ruling on whether it is the role of the interpreter to interpret or to give a vote.

Motion agreed to.

House resumed.

Speaker Recalled