Wilson Margaret: Foreshore and Seabed Bill Resource Management (Foreshore and Seabed) Amendment Bill — Third Readings 
Wilson Margaret: Foreshore and Seabed Bill Resource Management (Foreshore and Seabed) Amendment Bill — Third Readings 
[Volume:621;Page:17201] 
Hon MARGARET WILSON (Attorney-General) 
: 
 It would be an understatement to note that this legislation has provoked considerable debate both inside and outside this Parliament. However much of that debate has been about matters not in the legislation. Essentially the legislation recognises common law customary rights to the foreshore and seabed in the context of vesting full legal and beneficial ownership in the public foreshore and seabed in the Crown and guaranteeing general rights of access to all peoples.  
The Foreshore and Seabed Bill arose out of the decision of the Court of Appeal in the NgatiApa case—a decision that created considerable legal uncertainty while addressing the longstanding and important issue of the recognition and content of common law customary rights to the foreshore and seabed. In deciding that the Maori Land Court had jurisdiction to determine common law customary rights the court opened the opportunity for privatisation of title to the foreshore and seabed long assumed to have been held in the ownership of the Crown. Given the fundamental responsibility of any Government to provide good order and stability there was no choice for this Government but to do what it did—that is to clarify the law.  
The object and purpose of the Foreshore and Seabed Bill were set out clearly in clause 2A and clause 3. The object is to preserve the public foreshore and seabed in perpetuity for all New Zealanders including whanau hapu and iwi. The purpose is to vest the full legal and beneficial ownership in the Crown thus guaranteeing public access while recognising and protecting ongoing customary rights.  
Many in the Opposition have argued that the legislation is racist. That allegation comes from both extremes of the Maori and non-Maori opponents of the legislation. Listening to their arguments highlights for me the raison d’etre of the legislation—namely that it balances and reconciles the interests of all New Zealanders.  
When we step back and look at the legislation as a whole and in its context it is apparent that essential elements of it synthesise concepts integral to tikanga and to the values shared by other New Zealanders. For example the notion of a shared common space held in perpetuity in common to both Maori and non-Maori alike is not an unknown concept to all peoples. What Maori also seek however is recognition of their unique tangata whenua status as the guardians of the foreshore and seabed and that as guardians they have specific rights and interests. This legislation gives that recognition in a tangible way through the customary rights orders. It also goes a step further and recognises that if a whanau hapu or iwi group establish territorial rights in the High Court then the claimants are entitled to redress as set out in the bill. The legislation has then in effect incorporated the common law customary rights into statute. This legislation formalises the recognition of common law customary rights and provides a process to determine the nature and extent of those rights and if those rights are established provides a way to enforce them.  
Throughout the various stages of the legislation much has been made of the argument that due process has been denied Maori claimants. It has been argued that it should have been left to the Maori Land Court. Prior to this legislation such a process could have resulted in the privatisation of the foreshore and seabed which was not wanted by most Maori or non-Maori. However the legislation does not deny due process. It provides for both the Maori Land Court and the High Court to hear and determine claims brought under the legislation. It is true that the process cannot lead to privatisation of the foreshore and seabed but it does lead to remedies—those remedies in the form of customary rights orders and territorial customary rights orders.  
During the debate on the Foreshore and Seabed Bill there has been much discussion on the nature of territorial customary rights. This legislation codifies the common law in respect of aboriginal title or customary title. It replaces the current jurisdictions of the Maori Land Court and the High Court with new jurisdictions. The common law doctrine provides for a continuum of customary rights. At one end is uses activities and practices and at the other end of the continuum is full customary rights equating to exclusive occupation and possession. The legislation follows the common law in that respect. However it takes a more liberal position than Australian case law in that it actually recognises that a form of exclusive ownership rights may exist.  
It is important to note in this context that no common law jurisdiction has recognised exclusive customary ownership rights in the foreshore and seabed. In fact the  
Yarmirr 
 case in Australia concluded that there could be no such rights over the foreshore and seabed. It would have been interesting if the Court of Appeal had considered the  
Yarmirr 
 decision in its decision. It is admitted that this is a difficult area of the law and tribute must be paid to Dr Paul McHugh a leading international expert for giving his time and expertise to the Waitangi Tribunal and the select committee. Through his evidence it was possible to develop criteria for a territorial customary title that was consistent with the common law but relevant to the particular circumstances in New Zealand.  
Finally I note that the provision of reserves as a form of redress is based on the notion that in accordance with tikanga the customary interest that Maori had in the foreshore and seabed was one of control and management not ownership as Tariana Turia believes. This remedy then is consistent with common law notions of customary rights and with tikanga which is why the Maori members argued so strongly for its specific inclusion in the legislation. This legislation then is a balance between the interests to preserve customary rights and activities as exercised by both Maori and non-Maori. It grapples with an interest that has been around for a long time and which previous Governments have avoided. The fact that it provoked strong political reaction is not a surprise. However I trust that when the heat has settled and the remedies in the legislation are pursued the legislation will be seen for what it is—a reconciliation of differences through respect and tolerance of the interests and the rights of everyone in this country. 
Dr WAYNE MAPP (National—North Shore) 
: 
 There is only one flaw in the previous speaker’s argument and it is that it is not what she believed after the case. Two days after the case she said: “Legislate to confirm the fundamental understanding that has prevailed in this country for 100 years—Crown ownership on behalf of all New Zealanders Maori and non-Maori alike.” She was confirmed in that view by the Prime Minister and as we made clear at the time we would have supported a simple proposition and that is what the Attorney-General thought was the right answer at the time. What she has now ended up delivering is legislation that is essentially here at the behest of the Maori members of the Labour Party. That is their clear and deliberate intent. The Deputy Prime Minister knows the truth of it. That is why Nanaia Mahuta almost certainly I predict will be voting for this legislation. They have their private deals in this legislation and the clauses to protect them are buried deep within it.  
Let us just analyse what the bill actually does—because they have this global idea of Crown ownership on behalf of all and they want New Zealanders to believe that that in essence is what the legislation does. Certainly there is a clause to that effect but it is whittled away in the subsequent 100 clauses by a cheese-paring attack on the rights of all New Zealanders.  
So we do have a complex and difficult structure. Let us analyse that. Firstly we have territorial customary rights granted by application to the High Court. That will lead to Maori reserves up and down the country. We understand based on what the Maori members have said to the  
New Zealand Herald 
—they cannot deny this and they will not deny it—that the area will be 10 percent at an absolute minimum. We know where those places are already—Eastern Bay of Plenty East Cape the far north parts of Taranaki and no doubt other parts of the nation. That is the first point.  
The second point is that customary rights orders will come before the Maori Land Court. Is that the right court to be dealing with something in an area of general interest? This is a very important point. It is intended that the foreshore and seabed belong to all New Zealanders irrespective of their ethnicity. The Maori Land Court is specifically set up to deal with land disputes essentially as between Maori. There is a huge new jurisdiction where a court set up for essentially one group of the population will be resolving issues for all the population. The court simply does not have the experience the resources or the background for that role. Those are the sorts of things we would expect at the very minimum to be done by the courts of general jurisdiction—the High Court.  
The third point is the notional concept of customary rights for all New Zealanders which was inserted at the behest of New Zealand First. The only example of course is the Auckland Anniversary Regatta. I am not aware that there has been any problem that the Royal New Zealand Yacht Squadron has had for the last 163 years. Has it asked for this solution? The answer is no because frankly there is no particular problem. This is a fallacious approach to legislation.  
Then we have a whole range of amendments to the Resource Management Act the effect of which will mean that major strategic facilities that have to be built in places where they do not already exist—and I say that in particular—can now be vetoed. So a particular customary rights holder can veto something to the national benefit for all New Zealanders. That is wrong.  
Finally buried in clause 115 is the provision that enables the Crown and this Government—the Government has made it clear that this is its plan—to alienate the foreshore and seabed from the people of New Zealand to particular Maori claimants. The precedents are already there. They are the Lake Rotorua settlement—an area that was and is owned on behalf of all New Zealanders by the Crown since 1922 in a freely negotiated arrangement. This Government in the 21st century is reversing all of that. It is taking it away from the people of New Zealand and transferring it to particular groups. The Government intends to do that on the west coast harbours. Nanaia Mahuta said that in the select committee Government officials said that in the select committee the Prime Minister said that in the House and the New Zealand First Party has conspired in the process.  
At least the Government has been upfront. I can only assume that New Zealand First members have been duped—that I guess is being charitable to them—because they are betraying their principles. They say they believe in one law for all New Zealanders. Well the only “oneness” is the fact that it is contained in a single document but that document now has two laws—customary rights for Maori and no customary rights for anyone else other than the Auckland Anniversary Regatta. That is frankly absurd. They have betrayed their own principles. So Mr Winston Peters cannot claim and should not claim—because it is a falsehood—to have fixed it. What in fact he has done is to participate in the wrecking. He has now got the right appellation of a wrecker not a fixer.  
I want to talk about two other issues: first the matter of customary rights and second a matter important to North Shore City residents. National did say in its report that it supported customary rights and then it said that there must be a balancing between the interests of the general community and the holders of customary rights. Actually there are existing mechanisms to do precisely that. They are contained in the 1993 fisheries legislation and are known as the taiapure and the mataitai. They do have mechanisms of governance and controls over the use of fishery resources—shellfish and the like—and by and large they work. Similarly we have the example of the mutton birds in the Titi Islands. So we do understand our history and that was the way the issue needed to be dealt with.  
I now wish to turn to the issue of the North Shore city residents. I have to acknowledge that their position was finally protected. It took an enormous amount of work by me as the member of Parliament for North Shore to try to get that into the legislation. 
Dail Jones 
: You didn’t vote on it. 
Dr WAYNE MAPP 
: It finally came in on the very last day—and I want to address that particular point raised by Mr Jones. The National Party sought to vote on the relevant clause because there was only one clause on the relevant Supplementary Order Paper. We sought leave from Parliament to vote on that and we would have voted for that as a separate clause because we recognised the importance of those rights being protected for North Shore residents. Do members know what the Government’s reaction was?  
Peter Brown 
: Don’t tell me they voted against that? 
Dr WAYNE MAPP 
: The Government denied leave to vote separately on that important issue. On that Supplementary Order Paper was a whole range of other measures.  
Dail Jones 
: No no.  
Dr WAYNE MAPP 
: That is very clear. There was a whole range of other measures including— 
Dail Jones 
: Tell the truth for once. 
Dr WAYNE MAPP 
: I have read the Supplementary Order Paper in detail. There was another range of measures as well and the Government was expecting us to vote for all of them. So we sought the leave. We said in the purpose for the leave that we would vote for it. The Government in its usual arrogance—and this bill is an example—denied that leave. Having said that I do think that North Shore residents will be well pleased with that result because their rights have been protected.