Marine and Coastal Area (Takutai Moana) Bill

The preamble is a reasonably brief part of the Marine and Coastal Area (Takutai Moana) Bill, but it sets out quite a lot of history. Recital (1) states that the starting point of the debate over the foreshore and seabed, which has gone on for many years, was the decision of the Court of Appeal in Attorney-General v Ngāti Apa. The response of the Government of the day was the Foreshore and Seabed Act of 2004.

It is worth recalling a little of the parliamentary history of that legislation. The bill was introduced and referred to a special select committee, the Fisheries and Other Sea-related Legislation Committee, then reported back to Parliament, whereupon the bill proceeded under urgency: its second reading, Committee stage, and third reading occurred within one sitting day. It is interesting to observe, when one considers the legislative history of the matter, that during that period of urgency the Government tabled numerous Supplementary Order Papers, making significant changes to the bill, including the 67-page Supplementary Order Paper 302, which Opposition MPs were given to digest during their 1-hour dinner break.

The legislation was—I believe, in good faith—aimed at securing an enduring resolution of this vexed issue, but that did not prove to be the case. Indeed, there has been both national and international criticism of the legislation. I refer, for example, to recital (2), which sets out the report of the United Nations Committee on the Elimination of Racial Discrimination and the report of the special rapporteur, Mr Stavenhagen, who came to New Zealand and expressed his concerns about the legislation.

It is notable that last year another special rapporteur, Mr James Anaya of the University of Arizona, came to New Zealand. He recently produced a report that stated he was “pleased to hear of recent legislative developments aimed at addressing the concerns raised by Māori regarding the Foreshore and Seabed Act of 2004.”, and that the bill that is now before the Committee represented “a notable effort to reverse some of the principal areas of concern of the 2004 Foreshore and Seabed Act.”

Recital (3) recounts the history of the matter since this Government came into power, and refers to the report of the ministerial review panel and to the work undertaken to achieve an enduring solution. Recital (4) talks about what the proposed Act will take into account. A couple of minor amendments to the preamble are proposed: reordering words and so on, and introducing the concept of manaakitanga.

The preamble, as I say, sets out the history of the matter, and represents the endeavours by this Government to find an enduring solution to what I acknowledge has been a vexed problem for many years.

The Labour Party is opposed to the Marine and Coastal Area (Takutai Moana) Bill. The bill does not achieve the purposes that are set out in Part 1. I recall very clearly the Prime Minister saying that he wanted to settle this issue; this bill does not settle the issue. The bill states that it provides a durable solution; this bill does not provide a durable solution. The Māori Party itself says the bill does not provide a durable solution. It says that it is simply a temporary stopgap.

Chris Tremain: I raise a point of order, Mr Chairperson. This is a tight debate. It deals with the preamble. I ask you to call the Leader of the Opposition to account on this issue.

The CHAIRPERSON (Lindsay Tisch): I will determine the relevancy.

Hon PHIL GOFF: The purpose clause states that the purpose of the bill is to establish a durable scheme. Tariana Turia and Pita Sharples are both on record saying that it is simply a stopgap, a stopgap until they can get more. If that is all that this bill is, the Minister in the chair, the Minister for Treaty of Waitangi Negotiations, is wasting the time of this House in bringing it in.

I remember very clearly the Prime Minister saying that if there was not broad support for the bill, then he would withdraw it. Was there broad support for the bill? Four and a half thousand submissions to the Māori Affairs Committee from a cross-section of New Zealanders were, overwhelmingly, opposed to this legislation. They were strongly opposed to this legislation. Supporters of the National Party are strongly opposed to the bill. Supporters of the Māori Party are strongly opposed to the bill. And the reason the Māori Party has been split asunder is that its members themselves could not reach agreement on the bill.

We should not be surprised at that, when we consider the history of the bill. The bill is a response to the foreshore and seabed legislation. National members when in Opposition said that the foreshore and seabed legislation went too far and bent over backwards to give the Māori people more than they should get. National ran the campaigns of iwi versus Kiwi and dog whistling, and the race-based card was played time and again. I can tell members that hundreds of letters that have been sent to the Prime Minister and copied to me, from every electorate represented by the National members opposite, state that the Prime Minister—[Interruption]

The CHAIRPERSON (Lindsay Tisch): The member interjecting cannot bring the Chair into this debate. I ask the member—and all members—to remember that the Chair is not part of this debate.

Hon PHIL GOFF: The truth is National promised one thing before the election and betrayed its own supporters by not delivering what it had promised. And the Māori Party did exactly the same thing. The Māori Party said that the foreshore and seabed legislation was a disgrace and a disaster, but it has ended up supporting what National has put in this legislation, which most of the Māori Party’s supporters cannot differentiate from what was in the foreshore and seabed legislation.

The reason this bill fails is that it is simply a fig leaf. It is a fig leaf for National to hide the fact that it promised one thing and delivered something totally different through the Attorney-General, and it is a fig leaf for the Māori Party because it promised something that even two-thirds of its own supporters say it has failed to deliver. No wonder there is embarrassment. No wonder there is the determination to pass this legislation under the cover of the Christchurch earthquake. The National-led Government said to Parliament that this is a time to avoid bitter, partisan dispute. That is what Government members said, but what did they do? They brought in this legislation, hoping that nobody would notice because we were all focused on the needs of the people in Christchurch.

If that was all that National did, it would have been bad enough, but National went through the 4½ thousand submissions—and the department spent hours and hours of time analysing those submissions—it went back to the select committee, which was chaired by Tau Henare, and after hours of people giving submissions and after countless hours of the department compiling a report, how long did the select committee give to the consideration of this bill?

The CHAIRPERSON (Lindsay Tisch): Before we carry on—and I will give the member the call—I remind the member that we are on the preamble, and I ask that from now on we stick to the preamble. That is what we are debating.

Hon PHIL GOFF: The preamble sets out the history of this legislation. This legislation was introduced and referred to the select committee in the pretence that people’s voices would be heard. It makes a farce of the democratic process for people not to have been heard and for Tau Henare to have forced this legislation through the select committee in 2 hours. The select committee had 2 hours to consider thousands of submissions and to consider a 500-page report. The chairman of the select committee might be a speed-reader but I do not believe that he—

Chris Tremain: I raise a point of order, Mr Chairperson. Following your previous ruling—

The CHAIRPERSON (Lindsay Tisch): Thank you. I will determine relevancy. I ask the member to stick to the preamble.

Hon PHIL GOFF: As the preamble sets out, what the House should be trying to do is find common ground. We had division over the foreshore and seabed legislation. Everyone in this House now agrees that it was right to legislate for public access. Every party agrees on that. Every party in this House agrees that customary title is something that should not be alienated. What we are seeking to resolve is how to determine customary title. What the bill does—and the preamble sets out the history of it—from the way that it is constructed is provide that customary title can be determined not impartially and independently by the judiciary, but, rather, by a political deal between the National Government and the Māori Party. We saw such political deals on the emissions trading scheme—

The CHAIRPERSON (Lindsay Tisch): I have mentioned—and I will not say it again—that we are on the preamble. The preamble is on page 7. I ask the member to come back to the preamble.

Hon Trevor Mallard: I raise a point of order, Mr Chairperson. The preamble does set out the history of this legislation.

The CHAIRPERSON (Lindsay Tisch): I know what the preamble does, thank you. The member has just talked about the emissions trading scheme. Let us focus on the preamble. It is very clear what it is. I ask the member to continue.

Hon Trevor Mallard: I raise a point of order, Mr Chairperson. The Minister in the chair made some very broad comments about this agreement. All that the Leader of the Opposition said was that it was, effectively, a dirty little deal like the emissions trading scheme.

The CHAIRPERSON (Lindsay Tisch): I gave some latitude in the first 5-minute speech and I am now asking the member, and other members when they come to speak, to focus on the preamble.

Hon PHIL GOFF: The key issue, as set out in the preamble in reference to the Ngāti Apa decision, is how one determines claims of customary ownership. Labour got certain things right in the Foreshore and Seabed Act. It got it right about statutory protection of public access. It got it right about non-alienation of customary titled land. We freely acknowledge that we did not get right the denial of access to the court. We stand ready in the Chamber today to work with every other party to find common ground for a durable solution to this problem, if there is a will on the part of the National Government and the Māori Party to do so. I regret that there is no will. If there was a will, the democratic process would not have been aborted in the way that it has been by the lack of select committee consideration of the bill. It would not have been transgressed by the refusal to give advice on what the grounds for customary title are. Why has the Attorney-General not been prepared to make available to the House the legal advice that he has received on this issue? If he made it available we could have a properly democratic and transparent process. Why has this bill been rushed back without proper select committee examination? Why is it now being rammed through under the cover of the Christchurch earthquake?

Chris Tremain: I raise a point of order, Mr Chairperson. I just cite clause (2) of Standing Order 107, “Relevancy”—

The CHAIRPERSON (Lindsay Tisch): Sit down. I have made clear what we are on, and I will determine whether the member goes overboard. He has a minute 20 remaining

Hon PHIL GOFF: What we are trying to do—and as set out in the Ngāti Apa decision—is to find a solution that is durable, fair, open, and transparent. We can see that the answer in this bill does not address the dilemmas set out in the Ngāti Apa decision. It does not provide for durability. It does not provide a process for transparency or democratic input. It does not settle the issue of Ngāti Apa, because it leaves this House and this country more bitterly divided than they were before. It does not settle the issue. John Key has reneged on his undertaking that unless there was broad support for this bill, it would not go through. Every member of the National Party opposite buries their head in shame because they have received letters that have been copied to me that accuse National of a total sell-out, a betrayal of its promises, of being totally misleading, and of not achieving something that Labour set out to achieve in addressing this bill, which was to bring the country together, which was to bring Parliament together, and which was to consider a way of properly addressing these issues.

What is it with all the men screaming today, especially when we are hearing it from members of the House who were responsible for putting in place the Foreshore and Seabed Act 2004? That legislation created, in the first place, the discrimination, the inherent injustice, and the confiscation that the Marine and Coastal Area (Takutai Moana) Bill is supposed to protect us from but dismally fails to. I note that other male members of the House who are part of this whole “man screaming” thing were also opposed to the 2004 legislation and had quite a different view in those early years from the one they have now. None the less, we have this bill before us. It is a disgrace.

The preamble is very interesting in the way it sets out the history of the process by which this bill has come about. I will briefly address a couple of issues. The preamble raises the question of discrimination. It states that concern was raised about the discriminatory effect of the 2004 Act on whānau, hapū, and iwi. That was highlighted by the United Nations Committee on the Elimination of Racial Discrimination and the United Nations special rapporteur. That is quite right. The committee and the special rapporteur, who visited here and produced a report, highlighted the discrimination, particularly around the unequal treatment of Māori and the unequal treatment of the different kinds of title. The Greens have raised this issue before, and we will be dealing with it later on in the Committee stage.

The issue raised is about the different treatment of the different kinds of title. On the one hand there is freehold title, and on the other hand there is customary title. The different treatment of these kinds of title comprised a large part of the criticism of the United Nations committee. That issue was also raised by the ministerial review panel that was set up by the Māori Party to have another go at looking at this issue. Members should not forget that we have had three major rounds of public submissions on this legislation, only to find ourselves dealing with exactly the same bill that we dealt with in 2004. Under the bill Māori land is still confiscated and Māori are still treated in a discriminatory way. The ministerial review panel was also clear that that principle of equal treatment had to be a core part of any further framework on how to deal with the foreshore and seabed issue. It said there should be equal and consistent treatment for similar cases in respect of Māori and other property rights.

We know from this legislation that there are two areas of discrimination, which I will briefly mention. The first is that the proposal to put in place public access applies only to those areas where there is, or could be, customary title. It does not apply to the more than 12,000 private freehold titles in the foreshore and seabed. That itself is an explicit act of racial discrimination against Māori and against the Māori forms of title and land management.

Hon Pete Hodgson: Which way would you fix it, Metiria?

METIRIA TUREI: The member asks whether that should be the case. If there is to be a principle of public access to the foreshore and seabed, then, yes, it should apply equally, regardless of the title. If there is to be some other consideration of the treatment of public access, then let us consider that, but if the principle is—

Hon Pete Hodgson: Including Port Otago?

METIRIA TUREI: Well, that raises the question, does it not? It raises the question of what we do then with the kinds of titles that councils might have, or ports might have, or other forms of industry. It might be that we could have a process that considers things like the safety of the public in those areas and the particular use of those areas. But if we do not have the basic principle that public access to the foreshore and seabed should apply equally everywhere, and then look more carefully at only those areas where it should not, for particular reasons, what we have is discrimination in law—racial discrimination in law. That is what this bill is doing. It is putting racial discrimination into law, because it does not consider issues of safety, and it does not look at the kinds of ownership of the 12,500 freehold titles that there are on the foreshore and seabed; it is very blunt and very broad. It applies only to whether there are freehold titles. Freehold titles are protected from the principle of public access, which does not have to be provided, but customary title held by Māori is treated as a secondary form, as a lesser form, of title and is therefore subject to public access considerations. That is discrimination.

Another area of discrimination was raised in the Māori Affairs Committee, which is referred to obliquely in the preamble. It is related to when the Government can remove the rights of a person over his or her land. In normal circumstances, if one has freehold title and the Government wants to take that land for some form of infrastructure that it considers important, the process is worked through under the Public Works Act. There is a process for looking at the value of that land and it is a fairly straightforward, clear process for those who have freehold title. But if iwi, hapū, or whānau were to have customary title in a piece of land and the Government decided that it needed that land to build a road or a water pipeline through it, the Public Works Act would not apply. In fact, they would have to negotiate with the Crown and the Crown gets to decide, on its own, effectively, whether any compensation would be paid at all for the acquisition of that land and, therefore, for the interruption of the rights of that whānau or hapū or iwi over that land.

Again, we have here the treatment of customary title as a secondary, lesser form of title that does not have the same rights as private title and is not treated or valued the same by the Crown or by other agencies. If the Crown wants our customary title land, it can go and get it, and it does not have to give us compensation. It is entirely up to the Crown to decide whether it will do it. That is not the case if one has freehold title. It is another form of racial discrimination in this legislation for no reason, for no justification, at all. There is no reason why we cannot have the same principles for the use of land for important Government infrastructure to apply to freehold titles and to customary title, as well.

These are details beyond the principle, and Parliament is well aware of the Green Party’s opposition to this legislation on principle, but if we also look through the details we see that it just gets worse and worse. It is these details of discrimination that show how much of a failure the Māori Party - National negotiations have been over trying to resolve the inherent injustices that were put in place by New Zealand First and Labour in 2004. Those inherent injustices remain. The failed principles are still in place in this legislation, and the failed details are still in place in this legislation, just as they were in 2004. It is a great disappointment.

The preamble sets out the history. The history is a lot dirtier, in my view, than these four recitals make clear. The preamble is very broad in the way that it discusses the issues. It tries to give the 2004 legislation a worse record than this one, which of course is not true, because they are effectively exactly the same. They effectively do exactly the same thing; they have simply been negotiated between different parties.

It is a real disappointment to know that Māori MPs from across the House, particularly from the Māori Party and National, will be supporting legislation that has at least two—and there will be more—clear examples of racial discrimination against Māori, against customary title, and against tikanga Māori, and that this legislation will be put into law in just a few days’ time.

The ACT Party strongly opposes this legislation in the same way that the ACT Party opposed the Foreshore and Seabed Act 2004. In fact, the ACT Party is the only party that has had a consistent policy, a policy based entirely on principle, in its opposition to the provisions of this bill. The ACT Party over the next 2 or 3 days, with your support, Mr Chairperson, will take the opportunity to put its arguments out into the public domain and to repeat those arguments, because they are powerful arguments. They are arguments that have been ignored by the Government and they need to be understood by all New Zealanders.

Let me comment very briefly on the speech made by the Leader of the Opposition, who commented on the preamble. He said that the Prime Minister promised that this bill would not proceed unless it had widespread support. We in this Chamber know today that this bill does not have widespread support. The suggestion that it has widespread support is an absolute fiction. The preamble sets out the history of this bill and of how we got to this stage. As the Attorney-General, the Hon Chris Finlayson, points out, it started with the decision in the Ngāti Apa case in 2003. The name Ngāti Apa is bandied around the Chamber. Most of the members of this House would know some of the background, but probably few members of the New Zealand public would know it. In the Ngāti Apa decision we had nine iwi from the upper South Island—

Rahui Katene: Eight.

Hon JOHN BOSCAWEN: I am told it was eight. I am happy to be corrected on points of fact, but it was more than just one iwi. It was more than just Ngāti Apa iwi; there were eight iwi. The eight brought a case asking for recognition of what they said their customary rights were to parts of the seabed of the Marlborough Sounds. Ngāti Apa was just one of those iwi—just one of those eight iwi. If you like, they have lent their name to this case, which is now etched in the memories and the history of the debate on this bill.

They brought a case that went all the way to the Court of Appeal. The Court of Appeal accepted their claim to the extent that they were seeking to have their case heard in the Māori Land Court, which had previously been denied to them. The right to bring their claim had been denied to them in the High Court. The High Court acted on a decision of the Court of Appeal in 1963—the Ninety Mile Beach decision. It was expected that the Court of Appeal, when it heard this case in 2002, would follow the decision in 1963, but it did not, to the surprise of all, including, I suspect, the Prime Minister and the deputy leader of the Government of the time. The Court of Appeal decided that Ngāti Apa and the other seven iwi were entitled to go to court.

It is very important to understand what the court decided and what it did not decide. That is the crux of this issue. The court did not decide that Ngāti Apa and the other seven iwi had customary title to the seabed and foreshore—it did not say that. There was a widespread misrepresentation or misunderstanding of that decision. The decision did not say that. What the Court of Appeal said was that Ngāti Apa had the right to go to court—the right to go to court. That is a right that the ACT Party has consistently spoken up for and defended ever since the decision was brought down by Justice Sian Elias and her four colleagues in 2003—the right to go to court.

When the previous Labour Government announced within 36 hours of that decision that it would pass legislation to take away that right, or, certainly, to severely restrict it, the ACT Party opposed it. We know the background. We know that Tariana Turia gave up her ministerial position in the Labour Government, stood in a by-election, and formed the Māori Party. It is important to understand that that decision said that iwi have the right to go to court and nothing more. In fact, if it did say anything more, what the judges said was that it was a very, very high test—a very, very high test to award customary title.

I carry on to the next recital of the preamble, recital (2). It talks about the bitterness and the difficulty that the passing of that legislation in 2003 created. As a consequence, when National was elected into Government it formed a confidence and supply agreement with the Māori Party. The National Government agreed with the Māori Party to review the Foreshore and Seabed Act. As the Attorney-General says, and as is laid out in recital (3) of the preamble, the ministerial review panel recommended that the Act should be scrapped and replaced. Following that we had this document here, which was produced by the office of the Hon Christopher Finlayson. It is called “Reviewing the Foreshore and Seabed Act”. It is a very concise document. I recommend to anyone who has followed this issue to read what this document says. I am sure it can be downloaded from the internet—I presume it can be.

The interesting thing about this document is that the Attorney-General announced his decision to call this review, to publish this review, the week before Easter 2009, and he announced that he was closing submissions on 30 April. That allowed only 4 weeks for the people of New Zealand to digest this document, to understand the history, and to make their submissions. What we now know is that 1,500 organisations made a submission on it. I say that we now know that, but we did not know that in May, we did not know that in June of last year, we did not know it even in July or in August, because when the Attorney-General was asked to release the submissions that were made on the document he refused to do so, he continually refused to do so, and it was not until an Official Information Act request was lodged that he reluctantly released those submissions late last year. What do we know? We know that 90 percent of the people who made submissions on this document oppose what the Government proposes. The Government set out four options. It was very clear from reading this document that option four, the Government’s proposed option, was opposed by 90 percent of submitters.

We come now to recital (3) of preamble, which refers to the bill. The process of the bill passing through this Parliament has been an absolute disgrace—an absolute disgrace. I sat as a member of the Māori Affairs Committee, which travelled around New Zealand hearing submissions on this bill. I was supported by my colleague Hilary Calvert. The select committee heard submissions on this bill in Whangarei, in Auckland, in Tauranga, in Wellington, in Blenheim, and in Christchurch.

Hon Tau Henare: Hilary Calvert was there most of the time, not John Boscawen.

Hon JOHN BOSCAWEN: I am very happy to respond to the taunts of Mr Tau Henare. He was the chair of that committee, and, clearly, he has a very bad memory. I attended the sittings in Whangarei, in Auckland, in Wellington, and in Blenheim. Hilary Calvert also attended hearings in Tauranga, in Christchurch, and in Auckland. The ACT Party was represented. We listened to the people. I say on behalf of my colleague Hilary Calvert, who will speak on the preamble later in this debate if the Chair gives her the call, that we were absolutely shocked at the way that some of the submitters were treated by the select committee. They were treated discourteously. People of New Zealand come along, they get involved in the parliamentary process, they make submissions, but they do not come along expecting to be abused, to be spoken down to, and to be called liars.

What came out of that select committee? There were 4,500, or was it 5,000, submissions. What we do know is that an overwhelming number of submissions on the bill strongly opposed it. Now we come to the farce—the absolute farce—with which the members of the select committee considered those 4,500 submissions. They met together on the first afternoon that Parliament sat this year and considered a 520-page report—520 pages—in less than 2 hours. They wrote a report the following day, the report of the majority, which was one page—one page. They summarised this issue in one page. Attached to that page were 40 pages of recommended changes.

I would say that the most noticeable thing about the preamble is what it does not include in the selected history that it chooses to include, but before I go into some of those omissions in the preamble, I will respond to something Metiria Turei said, which was that the bill is discriminatory because it protects existing Māori and freehold titles. I disagree with this bill, I do not think it should proceed, and I do not think that it will provide an enduring settlement, but I disagree with her assertion that it is discriminatory of Māori or of non-Māori in that way. I also disagree with her implied assertion that the common law right to a customary title would prevail over an existing freehold title that has been established.

It is absolutely clear from a reading of the Ngāti Apa decision—in my opinion, anyway—that a customary interest would not have been found in an area that was already subject to a freehold title. The tests of control that have been applied in overseas jurisdictions to establish a customary marine title, as it is called in this legislation, are quite high tests and they would be obviated by an instance where someone else has been conferred a title. So we ought to remember that what is in debate here is a common law interest that is unextinguished. There are many actions that can extinguish customary interests, and the conferring on someone of a collective or freehold title would have extinguished customary interests that were inconsistent with that freehold title. I do not think there is any doubt in law about that.

I also note, in respect of the assertion that that is somehow discriminatory against Māori, that a lot of the titles that are being protected by those particular clauses in this legislation are, in fact, Māori titles. They are collective titles, and they are sometimes Māori freehold titles, that extend into the foreshore and seabed area. So rather than this aspect being discriminatory against Māori, or discriminatory against some other group, that same rule actually applies to everyone. In any event, I suggest to Metiria Turei that those areas would not qualify, in any jurisdiction around the world that has looked at these issues, as still having extant unextinguished customary title interests.

I will return to some of the other problems with the preamble. The first recital of the preamble states that the Foreshore and Seabed Act 2004 was enacted partly in response to the Court of Appeal decision. But it does not say that, at the time, the exaggerated rhetoric coming from both sides of the dispute was saying things that were wrong, and was rarking up race relations. I have said in prior parts of this debate—and I do not shirk from saying it again—that that time was a septic time politically, and that race relations were being irresponsibly rarked up by, amongst others, Don Brash, the then leader of the National Party. Bill English was also saying to people that they would not be able to have a barbecue at the beach. When the legislation protected rights of public access, Bill English was saying that people would not be able to have a barbecue at the beach. Gerry Brownlee was the third person who was a leader of those intolerant and incorrect things that were being pushed by the National.

They were three very senior people in the National Party at the time. Don Brash was leader. Was Bill English deputy at the time? I cannot recall. He was National’s finance spokesperson at the time, anyway, I think, and Gerry Brownlee was also in a senior role and had the spokesmanship role for Māori affairs at the time, on behalf of the National Party then in Opposition. They rarked up that legislation, and they said inaccurate things about the effect of the Foreshore and Seabed Act. There was also Hone Harawira—and I have said this previously to Hone Harawira, who in my opinion also misrepresented the Ngāti Apa decision—who said that the effect of the Ngāti Apa decision was that Māori owned the foreshore and seabed around New Zealand. At times he gave the impression to New Zealanders that that was true in respect of the foreshore and seabed around the whole of New Zealand, and that the rights that the Ngāti Apa decision found in respect of Māoridom were tantamount to freehold property rights. But that was wrong too and it was one of the things that drove the fearful response from some of the red-necked reactionaries in New Zealand, who thought “Hell! I can’t live with that.” Well, they did not need to live with that, because that was never true, either.

Those two things are omitted from the preamble, but they ought to be there because they are very relevant to where we got to in that Act. The Act was not perfect, and I agree with the special rapporteur from the United Nations that the greatest problem with the Foreshore and Seabed Act was not that it declined a right of people to go to court to prove they had an unextinguished customary interest, which is what we are now calling a customary marine title, but what we called under the Act a territorial customary right. It was not that people could not go to court to establish that that right existed prior to the Foreshore and Seabed Act, the problem was that people could not get recognition of it at court, and they were flicked back to a negotiation with the Crown. That effectively left people—and I agree with John Boscawen on this—at risk of grace-and-favour agreements with a future Government to have their property rights recognised. They should not be reliant upon a future negotiation with the Crown for that. If the right exists, and the court finds that it exists, then it should be recognised. It should not be a matter of negotiation with the Crown.

It is on that fundamental point that Labour has said that it agrees that the existing Act needs to be changed. That could easily be done by way of amendment. It could have been done by way of amendment to the existing Act, and we would have preferred that. We could go along with repeal and replacement legislation if it were of that limited effect. But, of course, that is not the effect of this legislation.

In the short time I have for the remainder of this turn, I will take up the issue of the process that has been adopted. We heard the Attorney-General, who is in the chair, say that the prior process for the Foreshore and Seabed Act 2004 had been rushed. In fact, the legislation received the Royal assent a year and a half after the Court of Appeal decision in the Ngāti Apa case. There were hearings up and down the country. There were thousands of submissions. The big difference in process was that the Fisheries and Other Sea-related Legislation Committee did its job properly; it was allowed to finish its job properly. It was allowed to properly report to Parliament about what the effect of the legislation was. In aid of that, it had had legal advice from Paul McHugh, a Cambridge professor learned in international common law property rights—customary rights. That select committee had the benefit of that advice, and it reported back to Parliament about the legal effect of the Foreshore and Seabed Act compared with the common law right. In this legislation we do not have the benefit of the Crown’s advice—the advice received from Crown Law—because access to that has been blocked by the Attorney-General. The Attorney-General is entitled to claim privilege and not release that advice, but it was improper of the Māori Affairs Committee to block select committee members from getting legal advice.

We, to this day, do not know how to compare the legal tests with what would have been found at common law if this issue had been back in the courts. That is wrong—that is very, very poor process. We are codifying this test in a way that Māori says is unfair to Māori, and that some non-Māori say is unfair to non-Māori. We have this enduring sore left for New Zealand because we have not properly dealt with the issue in the absence of legal advice. But it is abundantly clear that this matter will not be settled by Parliament. The co-leaders and whip of the Māori Party are saying that the legislation is but a step and that they do not accept that it settles the issue fairly. Hone Harawira, having left the Māori Party, is saying that he does not accept that the settlement is a fair settlement. So for the Government to pretend that this is a full and final settlement of the framework to determine foreshore and seabed claims is wishful thinking and wrong.

The issue about the process was also touched on by Mr Boscawen. There was a 500-page departmental report that raised lots of technical issues—500 pages. I was one of the members of that select committee. I actually like to think I am a reasonably thorough member of select committees, and I try to read my papers. This report was circulated by email on the Friday; it was received in our offices on the Monday—which was the Monday after Waitangi Day—after the weekend, and it was considered by the select committee on that Tuesday afternoon. I, like most members of the committee, received it on the Tuesday morning. I went along to the select committee on the Tuesday afternoon, and the report was pushed through consideration by the National and Māori Party members without any member having read the whole of it. Paul Quinn says that he read the whole of the report; he did not, because even he on that afternoon acknowledged that he had got through only two-thirds of it. I had not had a chance to read it properly.

I am very proud to stand today as a daughter of Ngāti Apa, Ngāti Kuia, Ngāti Kōata, Ngāti Toa, Ngāti Tama, Te Ātiawa, Rangitāne, and—

Hon Mita Ririnui:Ngāpuhi.

RAHUI KATENE: —no, not Ngāpuhi, thank you—and Ngāti Rārua, all eight iwi of Te Tau Ihu. I am very proud to stand to speak on the preamble of this very significant legislation, the Marine and Coastal Area (Takutai Moana) Bill. I cannot help but to be taken back to 1997, and to think of the courage and vision of all eight iwi from the top of the South Island, from Te Tau Ihu, who went before the Māori Land Court to seek clarification that the foreshore and seabed within the Marlborough Sounds is Māori customary land, as defined in legislation. I remember the historic ruling by Judge Heta Hingston that the Māori Land Court does have jurisdiction to consider whether the foreshore and seabed is Māori customary land.

Today we are proud to have come full circle. It is a history that has taken many dramatic turns. Following Judge Hingston’s ruling, the decision was appealed to the Māori Appellate Court by the Crown and certain other parties, and, as the preamble makes clear, in June 2003 another twist appeared when the Court of Appeal held that the Māori Land Court did indeed have jurisdiction to determine claims of customary ownership. Enter from stage left the previous Labour Government, which, led by Margaret Wilson and Helen Clark, moved in rapid fashion to thrust the Foreshore and Seabed Act 2004 on the nation. We totally endorse the opening comments in this bill’s preamble, which establish the history we all know of the 2004 Act: the condemnation of the Waitangi Tribunal; the United Nations Committee on the Elimination of Racial Discrimination; and the special visit of the United Nations special rapporteur, Rodolfo Stavenhagen. The 2004 Act removed the long-held common law right of Māori to seek customary title in the High Court.

The 2004 Act extinguished customary title; no whānau, hapū, or iwi could seek customary title. The 2004 Act did not make provision for traditional practices or recognise the evolving nature of customary rights. The finding from the Committee on the Elimination of Racial Discrimination that the legislation contained “discriminatory aspects against the Māori, in particular in its extinguishment of the possibility of establishing Māori customary title over the foreshore and seabed” was an indictment on the previous Labour Government, and has provided a key source of concern for tāngata whenua for 7 long years.

Today we welcome a new approach: an approach that takes account of the intrinsic, inherited rights of iwi, hapū, and whānau, derived in accordance with tikanga, and based on their connections with the foreshore and seabed and on the principle of manaakitanga. This key statement in recital (4) of the preamble says so much, and it bears some further explanation. The 2004 Act did not incorporate tikanga in its tests. This bill incorporates tikanga as a key element in the test for customary title, and allows for differences in tikanga from group to group. The 2004 Act extinguished customary title; no whānau, hapū, or iwi could seek customary title. The bill restores the ability for customary title to be recognised, and it does so in a way that honours the intrinsic, inherited rights of iwi, hapū, and whānau.

I want to also draw attention to the concept of manaakitanga, which the Māori Party is very proud of introducing in this bill. The inclusion of manaakitanga as an example of tikanga, which this bill is most concerned with extending protection to, is a very significant achievement of this bill. The only other legislation in which the concept of manaakitanga features is the Central North Island Forests Land Collective Settlement Act 2008 and the Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010. So we are pleased with the important progress that has been achieved with this legislation, and, in particular, with this preamble, which recognises and provides for the interests of whānau, hapū, and iwi, and which gives credence to the principles of manaakitanga. But it does more than that: it recognises the mana tuku iho of whānau in relation to the takutai moana, it recognises the right to participate in conservation processes, and it provides greater certainty for iwi, hapū, and whānau. The bill restores the ability of Māori to seek customary property rights in the High Court. Most important of all, it honours the agreement we have made with our people to repeal the 2004 Act.

This bill is in the House on our initiative. Make no bones about it, this is a Māori Party bill. We have delivered on our word to our members, and we are pleased to stand here in support of the bill.

I find it very interesting that different members of the Māori Party have different versions of the history of the Marine and Coastal Area (Takutai Moana) Bill. I have to congratulate my colleague the Hon David Parker—

Hon Tau Henare: That’s not what you called him last week.

Hon MITA RIRINUI: —on his speech to the Committee this afternoon.

We are talking about the preamble to the bill, in terms of its history, but in doing that we have to be mindful of matters that were raised throughout the select committee process but are not actually covered in the preamble. I heard the interjection from the Hon Tau Henare, and I wonder at what point he will take a call and explain to the Committee what instructions he had to drive this legislation through the Māori Affairs Committee and to not take into account the views of the submitters. I was part of the process, as I was part of the process in 2003 and 2004, and I have to say that it was an absolute shambles.

Hon Tau Henare: Just like you. You did nothing as well.

Hon MITA RIRINUI: I am actually disgusted with the interjections I am hearing from the member across the Chamber in terms of his understanding of the process. If he thinks it was a transparent and open process, he should go back and read the select committee’s report. A lot of the issues raised by the submitters were not actually included in the report. That was because that member went out of his way to shut down any open debate on certain matters. But I am sure he was acting under orders, so I will leave that matter as it rests.

We heard some valuable contributions this afternoon for and against this bill, but it is important that we take into account what the common people were saying about it. They were not interested in the high-flying legal arguments around the customary rights issue. I remind the member from the South Island that any codification of customary rights, as this bill is attempting to do, is actually an extinguishment of those customary rights. Get it clear—the member is a lawyer, I hear.

When we talk to people on the street, the first question they ask is what the bill will deliver in terms of recognition of the customary rights that they have enjoyed since 1840. I have to say that there is a lot of uncertainty around that. There is a lot of uncertainty around it, because a lot of the areas that the Government claims this bill covers are customary rights that they enjoy already. I am quite offended when I hear the member Rahui Katene refer to the collection of shellfish, and the manaakitanga that Māori have for other people. Those principles have never been compromised at any time, in my recollection, apart from the 1991 amendment to the Fisheries Act. So if she wants to talk about the history of this bill, I tell her to go back and look at when customary rights, in terms of shellfish collection or fisheries, were actually extinguished. They were extinguished back then. But that was to our benefit, because the codification of our customary rights in terms of kai moana was very, very clear in that we still have in place certain rights that allow us to practise manaakitanga.

Another thing that annoys me is the way we put up arguments and put the issues before our people. Our people think they will look out the window one day and the takutai moana will be gone. I will give members an example. I visited a group on the weekend at Maketū, and the issue around this particular bill came up. A certain person, out of genuine concern, got to her feet and asked me what was happening about the takutai moana and our kai moana. I told her we were standing on the takutai moana and that it was still here and still ours, and I said we had just had lunch and we had kai moana on the table. I asked what her issue actually was. Her concern was that there was a lot of hype and emotion around this bill, as there was in 2003 and 2004. The concerns raised amongst Māori people were that those rights in terms of customary practices would be extinguished for ever. That is not the case. That was not the case in 2003 and 2004 and it is not the case now.

I make the accusation here in the Chamber that the problem in 2003 and 2004 was that certain people in this House raised expectations about what they could deliver if they formed the Māori Party. They raised expectations about what was possible in terms of taking their issues to the High Court. They raised expectations in terms of what enjoyment they would have in the future in respect of customary practices. In other words, a lot of hypocrisy and misinformation was being flaunted out there amongst Māori people. That misinformation is still out there, and those people expect the Māori Party to deliver to them customary rights and customary title.

Those members forgot to cover the complications Māori will face in the High Court. My colleague David Parker said earlier on that the benchmark is very high in terms of qualifying for the recognition of customary rights under this bill. That may be all very well for the legal fraternity, because, let us face it, they will be involved with litigation for some time to come, and they will be handling applications on behalf of many iwi around the country.

Members are not saying to those iwi that once we get this bill through, the issue is not over. It will never be over; it is just beginning. There are difficulties for iwi who apply for customary title over the takutai moana: they will have to meet the legal costs, and they will have to provide strong evidence about those interests. Māori have never ever had to do that—ever. Since 1840 and pre-1840 they have never had to do that. I want the members to think about that and the sort of situation created for Māori in terms of arguing their case before the High Court. It has never ever had to be done in the past.

The previous Labour Government gave Māori the opportunity to enter into direct negotiations to clarify the nature and extent of their customary rights on the foreshore and seabed, and many of them have taken up the offer. That opportunity has been removed. Neither can Māori go to the Māori Land Court to have a settlement. The Māori Land Court is probably the best court in the land to consider these types of applications for customary interests, because their people are more intricately involved with Māori on a day-to-day basis; a lot of them are community-based people themselves.

It is a shame that we did not have a lot of debate around this particular issue. I concur with my colleagues that the select committee process was rushed. We made that known at the time but there seemed to be little consideration for a longer debate. The Māori Party will have to explain that to our people in the future.

An interesting submission was presented in Tauranga that stated that the select committee process provided the opportunity for us to have a longer debate. Little did the submitter know that it was the opportunity for the Government to shut down the debate. Once this bill came into the House and started to go through the second reading process, that was the end of it. There is no debate after that. That is why the Hon Tau Henare acted on instruction, because the Government wanted to shut down the debate for ever. There is no ongoing debate for Māori in terms of the legal requirements around their customary interests or the nature and extent of their customary interests. Thank you.

The preamble of the Marine Coastal Area (Takutai Moana) Bill sets out, basically, its whakapapa. It is important to remember that this all started when Ngāti Apa sought some aquaculture areas way back in the time of the last National Government. The Marlborough Sounds council at the time would not guarantee Ngāti Apa some aquaculture space. Ngāti Apa said that was not fair and it would take the issue to court. It went to court and finally the Court of Appeal in 2003 said that, yes, Ngāti Apa had a case, and might go to court to test for customary title.

Before I move on to other parts of the whakapapa, I want to say that when Māori go to court to test that they have a case they have to be really, really careful. If the court decision is that they do not have any interest in customary title in a particular area, then they basically lose everything. That is a point we all need to realise when we say that Māori are chasing the right to go to court to test for customary title—which I agree with. The point of the matter is we may lose everything if the court says that, no, we do not have a right to customary title in a particular area.

During the select committee process I asked submitters whether they were after the right to go to court. They said yes. I asked whether they would accept the court’s decision if it said they did not have a case for customary title. They said: “Heck no. We’ll fight that. We’ll never lie down. We’ll never give up another inch of seabed.”

Paul Quinn: Rhetoric!

KELVIN DAVIS: The member over there says “Rhetoric!”. That is fine, but I know that the mentality amongst our whānau is that they will not accept the court’s decision if the court says they do not have a case. That is something we as Māori have to be very mindful of—that we may in fact lost everything. That is the risk we take by following this path.

After the Court of Appeal decision the Foreshore and Seabed Bill was drafted. We know that it was controversial, and recital (2) of the preamble to this bill talks about the criticism. The hīkoi led by Hone Harawira was born. It started off up north and marched down to Parliament.

The CHAIRPERSON (Eric Roy): We will permit interjections as long as they are rare and reasonable. We are not going to have yelling contests between other members that are dissociated from the member on his feet. One at a time.

KELVIN DAVIS: It is interesting that the very issue that gave birth to the Māori Party could also well be its demise. We have seen what has happened to the Māori Party over the last few weeks. One of the key members in forming the Māori Party is now one of the key members in its falling apart. It is very interesting that the Māori Party is in dire straits over this bill. Its members are embarrassed by this whole bill—and I will get on to a few things Rahui Katene said earlier on. The Māori Party formed a coalition with National, and the coalition agreement said that they would address the whole issue of the foreshore and seabed. They had a ministerial review, which was fine, and this new bill was produced.

I and the other members of the Māori Affairs Committee traversed the length and breadth of the country. I think we had 14 hearings in various places around the country and we heard from over 200 submitters. In those submissions there were polar opposite views. Māori in particular said this issue was a property rights and justice issue. On the other hand a number of people, mainly from the Coastal Coalition, said it was a race issue. It was really unfortunate. The truth lies somewhere in between the two extremes, the polar opposite views.

I want to bring up the matter of the select committee process. It is unfair that on the Friday before Waitangi Day we received an email on our BlackBerries containing the 500-page departmental report. But those of us up north for Waitangi Day were meeting, talking, and listening to Māori, and hearing what the issues were for Māori. We spent the whole weekend at Waitangi, and on Monday we had meetings in our electorates. We then travelled down here to Wellington to find the 500-page review on our desks on Tuesday morning. There it is; the Hon Shane Jones is holding one up. We had a couple of hours to read it. It was impossible in that time to read it, to compare it with the bill, to make comparisons, and to really get our heads round it. It was wrong of the Hon Tau Henare, the chair of the select committee, to rush the process through without due deliberation.

It was also unfair and wrong for us to be denied access to legal advice.

Hon Tau Henare: What a cry-baby!

KELVIN DAVIS: We hear the Hon Tau Henare over there telling me not to be a cry-baby. He says that because he knows that he led—or misled—the process of the select committee. He is embarrassed about that.

I want to go on to something that Rahui Katene brought up. She said this bill is a Māori Party bill. The reason that party was formed was to repeal the Foreshore and Seabed Act, and she is very proud of what she has here. It is interesting that she says it is a Māori Party bill, because I have in my hand a letter from a Māori Party member who attended one of Te Ururoa Flavell’s sideshows when he went around the country trying to convince Māori Party members that the bill was a good thing. He no doubt told them what he wanted them to hear. Te Ururoa was asked who was running the timetable and he said it was National. He was asked who wrote the bill and he said it was National. He was asked whose bill it was and he said it was National’s. The letter says: “It’s not the Māori Party’s bill at all so why the hell vote for it.” This is what—

Hon Tau Henare: What’s his name?

KELVIN DAVIS: I will scroll to the end. It is Tim Selwyn. He was, I assume, a Māori Party member. He is saying this bill is not a Māori Party bill; it is a National bill. Somewhere between Rahui Katene and Te Ururoa Flavell, that party needs to sort out exactly whose bill it is. Rahui Katene says it is a Māori Party bill and its members are very proud of it. Te Ururoa Flavell turns up to a public meeting and washes his hands of the bill. He is doing a Pontius Pilate. He does not want any part of it. He is saying it is a National bill. I tell those members to sort it out between them, because more confusion is arising from this whole episode.

That is the bones of the whakapapa regarding this bill. It was well explained and well set out by John Boscawen from the ACT Party.

Hon Tau Henare: Oh, you support the ACT Party now.

KELVIN DAVIS: I agree that it is a bit hard when a Labour Party member and an ACT Party member end up agreeing with each other. I also agree that there were times when I thought the chairperson of the select committee was a bit rough with a number of submitters. I agree with the Hon John Boscawen that when members of the public come to a select committee to express their ideas, they should not be put down, harangued, or harassed in any way. It was a shame that that happened, even though I was blown away by some of the extreme views of a number of the people from the Coastal Coalition who say that this bill is about separatism and apartheid.

Hon Shane Jones: They’re nuts, forget them—National voters.

KELVIN DAVIS: They are nuts, and I think they need to pull their heads in. Basically, they are so extreme that they are not helpful at all to any part of this debate. Kia ora.

I move, That the question be now put.

Tēnā koe, Mr Chairperson, huri rauna kia ora tātou te Whare. First of all, I think we need to put to bed the ridiculous story from the Labour Party that the reason why Labour passed the Foreshore and Seabed Act was that it thought National would do something racist. That would have to be the biggest joke, if it were not so tragic, that I have heard in a long, long time. It was not National that said it would take away the foreshore and seabed; it was Labour. Labour said it would do that, and it went ahead and did it. I think we need to clear that up straight away.

I also thank the Labour Party for allowing me the opportunity to speak on the Marine and Coastal Area (Takutai Moana) Bill during the second reading and, hopefully, for granting me the opportunity to speak on it again in the third reading.

I congratulate the Minister for Treaty of Waitangi Negotiations, Chris Finlayson, on doing a good job on this bill. He has been very enthusiastic and very open. I think he has been willing to travel and willing to listen to people’s views. But I think the real problem for the Minister is that he does not support this bill. He does not support it, because he knows that it does not lead to justice for Māori. The Minister does not support this bill, because he would have dearly loved to provide the opportunity for Māori to gain tupuna title, in terms of the foreshore and seabed. The Minister does not support this bill, because he went around and said to Māori groups, and to the iwi leadership in particular, that if they could not get their foreshore and seabed back through the courts, he would leave the door open for them to come and see him and negotiate the possibility to get their foreshore and seabed back by discussion with him.

Now, something else has happened. That deal was changed, and that was the deal that the Māori Party supported: going to court, and, if not being successful in court, negotiation with the Minister. That deal with the Minister morphed into a deal in Parliament. I understand today that that deal has morphed into nothing. That deal is now completely off the table, and the only deal left is the court deal. The problem here is that the court deal is no deal. Just because the door has been opened to the courtroom, it does not mean to say justice is available to Māori. When the Minister himself says Māori must prove full and exclusive use and occupation of the foreshore and seabed without substantial interruption and according to tikanga, he is setting a test that is so high that no whānau and no hapū can even afford to contemplate going to court. It is as difficult as that to prove. I think Mr Parker raised the notion of local body involvement on the foreshore and seabed, which would negate that ability. Others have mentioned the fact that land was taken illegally, but that does not apply in this situation. It still means that Māori do not have the ability to get the foreshore and seabed back.

I pick up on the comments made by Metiria Turei about the racism implicit in this bill. I understand that people have been concerned about my mentioning the fact that the bill is racist legislation only 15 times in my second reading speech. That is because it is. Unfortunately, it is also because the Minister thinks the bill is racist. The Minister himself does not agree that things should be imposed upon Māori that are not imposed upon others in this country, in terms of the way in which the foreshore and seabed is managed. In terms of the issue about mana—and I see that the word “mana” is used freely in the bill, and in particular in the preamble—I note that in terms of sovereignty, in terms of control of primary minerals, in terms of control of access, and in terms of access to resources, all of those statutory authorities still remain with the Crown. So there is no mana, because those issues are elements of mana. They are still wrapped up in Crown ownership, and that of course is the issue that Māori were fighting against. Although the title has been changed nominally, from Crown ownership to no title, in fact the statutory authority in relation to all of those matters still remains with the Crown.

I have heard often that issues of this nature should have broad support. Clearly, Labour’s Act did not have broad support, but neither does this legislation from the National Government. In fact, this bill does not even have the support of the general Pākehā population, let alone the Māori population in this country. I think that is a concern, or it should be a concern, to the Minister. I know, for example, that this bill is not what Māori people want. In fact, of the 72 submissions that came in on the bill from Māori organisations, whānau, hapū, iwi, marae, and Māori collectives, only one supported this bill. We could hardly say that is broad-based Māori support. This legislation is not even what all of the Māori MPs in this Chamber want. I know that Mr Quinn, for example, does not believe that this bill will achieve what his people would like to see happen in relation to the foreshore and seabed.

Paul Quinn: How do you know that?

HONE HARAWIRA: Because the member told me so, just outside the Chamber a few minutes ago. I say thank you very much to Mr Quinn.

I also say this bill is not even what the Māori Party wants. I will quote from one of the co-leaders on this legislation: “If the negotiations had been just, fair, and moral, the outcome would have been different.” I will repeat that, in terms of whether the Māori Party supports this bill. One of the co-leaders said, in her question and answer video on this legislation: “If the negotiations had been just, fair, and moral, the outcome would have been different.” Clearly this bill is unjust, unfair, and immoral. How the Māori Party can say this is its bill, when it is unjust, unfair, and immoral, is beyond me.

For all of those reasons I think we need to consider the proposal that was made by one Moana Jackson. It was a simple proposal that I know the Minister also liked, and I will come to that at the end of my kōrero.

But when the Māori Party said this was its bill, I could not understand why it would say that, when the principle of tupuna title that the Māori Party wanted in the bill was summarily dismissed early in the process. I cannot understand why the Māori Party says this is its bill, when even the Māori Party membership does not support this bill. When the Māori Party says this is its bill, I ask whether it heard the submissions that were submitted to the Māori Affairs Committee that said this bill fails to properly recognise and provide for the mana of hapū and iwi, that it continues the original confiscation via investing in the common space, that it sets the use and occupation tests too high, that it limits the contents of a customary marine title, that it introduces a costly, adversarial, and complicated court process, that it remains discriminatory to Māori, and that it continues to breach Te Tiriti o Waitangi, tikanga Māori, common law principles, and international human rights standards, including the United Nations Declaration on the Rights of Indigenous Peoples.

Moana Jackson suggested a very simple solution to this problem, and it was this: repeal the 2004 Foreshore and Seabed Act, because everybody wants that to occur, including Labour. So if the Minister wants broad support, then there is the answer. We should repeal the 2004 Act and then put a moratorium on the foreshore and seabed, so that Māori can take 2 years to discuss the way that will lead to a solution that achieves broad-based support and still achieves the kinds of principles that are important to Māori in terms of mana, in terms of tikanga Māori, and in terms of kaupapa. E mihi atu ki a koe, Mr Chairman. Thank you very much. Huri noa te Whare, kia ora tātou katoa.

I move, That the question be now put.

Tau Henare was right when he said that I was at many of the select committee hearings on the foreshore and seabed legislation. One of the submissions that I particularly noticed was one made by Business New Zealand on behalf of 76,000 employers and business groups. It talked, in particular, about the preamble. It talked about what the Marine and Coastal Area (Takutai Moana) Bill is all about, and it said that it was there for six reasons: to uphold and protect property rights; to be consistent with the Treaty of Waitangi and relevant common law; to bring legal clarity and certainty; to facilitate economic development for Māori and non-Māori; to integrate with other relevant legislation, including the Resource Management Act; and to satisfy overall justice and fairness, including appeal rights and remedies.

As has been mentioned earlier, the Prime Minister has said that unless this bill had widespread support he would not be supporting it. Those 76,000 businesses and organisations looked at these six criteria, thinking that these were the six things that this bill should be doing, and said that this bill breaches all six of them. The first reason for the proposed legislation was to uphold and protect property rights, and Business New Zealand said a variety of things, but at the end it said that the substitute rights that the proposed legislation would create bear no comparison to the property rights assured by the Treaty of Waitangi, and even the highest category proposed, the customary marine title, would restrict iwi and hapū to blocking the proposal of others as the main way to extract tangible returns, rather than allowing them to gain full benefit of recognised orthodox property rights.

When Business New Zealand talked about whether the proposed legislation would be consistent with the Treaty of Waitangi and relevant common law, it said: “The Bill is inconsistent with common law in promoting a special status of common marine and coastal area that is contrary to the common law doctrine of eminent domain under which the absolute ownership of all land lies with the Crown.” It said: “Giving away the common law doctrine of eminent domain in relation to the marine and coastal area would leave nowhere for any currently freehold land to revert to should it not be possible to find someone to whom private ownership could pass. This could result in neglected, decaying and dangerous structures for which there would be no-one to take responsibility. The Bill expressly denies exclusivity of use of areas under the interests created for iwi, except where reclamations are completed”.

When looking at whether the bill creates legal clarity and certainty, Business New Zealand said that the exclusion of freehold land in defined areas would mean that land can become part of the common area by, for example, erosion, and by contrast land that moves beyond the line of mean high-water springs reverts to Crown ownership. “Crown ownership of minerals (other than those designated as the property of the Crown) continues until any such are found within a customary marine title group area. At that point Crown ownership ceases and ownership moves to the relevant iwi group.” Importantly, Business New Zealand said: “Rather than promoting legal clarity and certainty, the exceptions cited above demonstrate the uncertainty and complexity contained in the proposed legislation.” That is uncertainty and complexity in so far as it could facilitate economic development for Māori and non-Māōri. It said: “This approach would also take no account of the time effect of transactions and the ongoing refinement of terms and conditions to suit particular prospective buyers and sellers. For example, a falling market might mean the owner had to start afresh when a price moved above market, to ensure a sale was not ‘more favourable’; on a rising market the opposite would prevail. This level of complexity for what should be a straightforward transaction illustrates the difficulties for economic development that could result from the proposed legislation.”

So it does not satisfy the supporting economic development for Māori. The submission then asked whether the proposed legislation would integrate with other relevant legislation, including the Resource Management Act 1991. Clearly, we will hear a lot more about this later in the bill, but it is Business New Zealand’s view that the bill should integrate with other relevant legislation and it fails to integrate with the Resource Management Act.

As for whether it would satisfy overall justice and fairness, including appeal rights and remedies, legislation of this kind must be balanced, but there must be concern about the differences of interpretation this bill has received, doubtless fostering public confusion. If it became law, many people could perceive the legislation as unfair, particularly in light of the kinds of issues raised in the submission.

On the question of appeal rights, the relationship between applications for recognition by agreement and for recognition by order of the High Court is unclear. With the responsible Minister able to enter into an agreement to recognise a protected customary right, it is not apparent why any group would apply to the High Court for a recognition order. The only reason would seem to be uncertainty whether the Minister would be prepared to grant recognition. And although there can be little concern that favouritism would be a feature of ministerial decision-making, grants of recognition left to the Minister’s discretion would invite accusations of this sort. If recognition was not granted, the further question would arise whether the group involved might then apply to the High Court.

The preamble also describes this legislation as taking into account the intrinsic and inherited rights of whānau, hapū, and iwi derived in accordance with tikanga. Tikanga is an Alice in Wonderland word. It means whatever the Queen—I think it was the Red or White Queen—said it would mean, no more and no less. The preamble goes on to state that “It translates those inherited rights into legal rights and interests”. So we are to believe that this Alice in Wonderland word, a word that can be defined by the person claiming some property in our coastal land, creates legal rights based entirely on the say-so of the claimant. We might just as well ask iwi for a list of what they want and put through a legal transfer. Thank you.

I move, That the question be now put.

Ā, kia ora anō tātou. Tēnā koe e te Kaihautū o te Whare mō tēnei wāhanga o ā tātou whiriwhiri i tēnei ahiahi. Ahakoa nō te tonga noa atu koe, ka nui taku hari i whakaritea kia tū ai ahau. He mōhio nōku me pēhea te pūkenga ka puta.

[Salutations once again to us. Thank you for allowing me to speak in this part of our deliberations this afternoon, Mr Chairman. Although you are from the very southern part of the country, I am absolutely pleased that you allowed me to stand. Mind you, I know how eloquent I am.]

Thank you very much, Mr Chair, for providing me with an opportunity to stand and make a contribution on the Marine and Coastal Area (Takutai Moana) Bill. Unfortunately the public thinks that the reasons we are marshalling on why we do not agree with this bill—and I will come to the preamble very soon—are consistent with what the last speaker, Hilary Calvert, just said. No one on this side of the Chamber believes that such an important bundle of rights, traditions, habits, and usages as those caught up in the words tikanga Māori comes from Alice in Wonderland. That was a disgraceful description of the bicultural traditions of this Parliament, and it showed why ACT, after, unfortunately, the passage of this bill, and as we get closer to 26 November, will be written right out of the script. Not a single person will shed a tear when that happens to someone who could make such a provocative, ill-conceived, and very nasty remark about nigh on 15 percent, soon to be 20 percent, of the population. But that will soon pass into history.

The preamble is a rather tight and somewhat parsimonious description of what has happened on this issue. We need to bear in mind that it was hardship that brought this issue to the attention of the former Māori Fisheries Commission, which then became the Treaty of Waitangi Fisheries Commission. Having extended the preamble and given it a greater degree of heritage, the Minister in the chair, the Attorney-General, ought to have included the pivotal role that was played by the Treaty of Waitangi Fisheries Commission, which was, for a short time—a mercifully short period of time—dominated by influences in the south, until it was liberated by those of us in the north. What happened was that marine farming interests were dashed. They will be extinguished, and they would probably be non-existent, if one was to listen to the previous speaker from ACT. That was a very, very jaundiced and uncharitable description of recent Māori history and New Zealand’s economic development history.

The Court of Appeal decision was reflective of a knee-jerk reaction from a High Court judge who took a very narrow and arid approach. That in itself was a reaction against Judge Ken Hingston’s decision, which was called, and is known, amongst the iwi as the Tau Ihu decision. That, in turn, was a reflection of how difficult and unwilling the people who were manning the seats in Tasman and the Tau Ihu area were to the applicants from the Māori tribes of that area towards establishing marine farming interests.

This preamble, unfortunately, does not identify the fact that Labour, when it passed its bill, allocated, in a very sensible fashion, 20 percent of the marine farming interests to ensure that that portion of the grievance was addressed. Of course, as befits parliamentarians such as Phil Heatley, he has just carried on that very good work. The origin of that original deal goes back to Labour, and I think it is very disappointing that between recitals (1) and (2) of the preamble no reference is made to those very useful interventions delivered by our side of the Chamber.

The other thing this preamble ought to have included was reference to the ill-fated decision in the Te Oneroa-a-Tōhe / Ninety Mile Beach case. [Interruption] I am speaking about the preamble. I am endeavouring to educate the member opposite who looks like a kina, and the one who behaves like a hedgehog. If they prove to be disinterested in receiving a brief history lesson, let it to be to the detriment of their descendants and their families, many of whom may need to go to see Ms Bennett, unless they pay more attention. The Te Oneroa-a-Tōhe / Ninety Mile Beach case ought to have been mentioned in the preamble, because had our matua from the very far north had more resources to challenge that decision, the outcome may have been substantially different.

We do not and will not support this bill. We are more than willing to provide Hone Harawira with a suitable level of opportunity to make—[Interruption] I apologise for mistaking a kina and a hedgehog, but after that contribution I do not feel those descriptions were incorrect. I come back to the contributions that our colleague Hone Harawira has made. Unwisely, he attacks Labour, without giving credit for the very sensible ideas that we brought forward to address some of the interests that motivated the claimants. I just hope that he is in the Chamber to cast his vote. Whatever he does, he needs to sort it out with the Green Party, so that the people of Te Tai Tokerau know that, although he has a loud voice, he will actually cast his vote. He needs to bear in mind that the vote that will really count for him will be on 26 November, and it will have a red tinge—but that is another matter.

I come back to the contribution made by the ministerial review panel, which was led by that peerless personage of Te Ao Māori otherwise known as Judge Eddie Durie. However, I did not agree with the interpretations that came out from that review panel. There was one absurd section, and I want it read into Hansard in my abbreviated form, because it shows that perhaps this preamble is lacking an additional bit of history. It had a photo and a ridiculous statement that it was only after the 1940s and 1950s that New Zealanders enjoyed recreating, swimming, cavorting, and doing other things on the seabed and foreshore. That was an absolutely ridiculous statement. From the beginning of the time that families have come here to live, and quite apart from our Māori tūpuna, people have taken for granted that that was their birthright. This bill—unfortunately it is an inescapable outcome—will lead to drama, aggro, and a definite prospect that people thinking they can go ahead and enjoy those interests will be challenged and drawn into drama. The report suggested that such interests in the foreshore and seabed were a very recent innovation. Although that report by Richard Boast, Sir Tīpene’s daughter, Judge Eddie Durie, and I forget whoever else was on the panel, is referred to in the bill, it did not advance matters to such a stage that this bill is demonstrably superior to the contribution that Dr Cullen and Helen Clark made. We will fight that issue, along with the Māori Party, at the next election.

The Māori Party is entitled to say that this is its bill. It is entitled to say that this bill is its remedy, etc. In one sense, it needs to say that, because it promised it would address the dramas associated with our contribution. But it has not described satisfactorily to our people the facts about, when we have our day in court, the narrow and largely unsatisfactory criteria that its people—its supporters—will have to meet. Its supporters are diminishing by the day, and by the hour—not that I want to wish too much ill will towards the Māori Party, because as fate would have it, one or three of its members might survive, and we will address that after 26 November. It is important that those people bear in mind that the threshold and the test that has been established will not satisfy their aspirations. It will lead to a set of expectations inversely related to what this bill can produce, and statute ought not to do that, which is why we will not be agreeing with this bill.

The preamble contains a very sparse and uncharitable description of the role that Labour played and the more positive aspects of that role, but in particular it completely avoids the very ugly, divisive, and quite extraordinarily angry reaction from Don Brash and a host of other National members who are now wildly passing the bill. That has been left out of it, as well. A balanced history would show that prejudice and bigotry flowed from that side of the Chamber. The attempt on this side of the Chamber was to combine notions of fairness and customary rights and to bring balance. That is what we sought to do, but it was a reaction to an almost fascist outburst in the speech at Ōrewa. It is bizarre that the Māori Party would actually want to cuddle up to the Government and to bring the bill to pass.

I move, That the question be now put.