Marine and Coastal Area (Takutai Moana) Bill — In Committee Speaker Recalled In Committee 
Marine and Coastal Area (Takutai Moana) Bill — In Committee Speaker Recalled In Committee 
[Volume:670;Page:17181] 
Marine and Coastal Area (Takutai Moana) Bill 
In Committee 
Preamble 
Hon CHRISTOPHER FINLAYSON (Attorney-General) 
: 
 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 Ngati 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 Maori 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. 
Hon PHIL GOFF (Leader of the Opposition) 
: 
 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 Maori 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 Maori 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 Maori Party are strongly opposed to the bill. And the reason the Maori 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 Maori 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 Maori Party did exactly the same thing. The Maori 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 Maori 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 Maori 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 Maori 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 Ngati 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 Maori 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 Ngati 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 Ngati 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 Ngati 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. 
METIRIA TUREI (Co-Leader—Green) 
: 
 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 whanau hapu 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 Maori 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 Maori 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 Maori land is still confiscated and Maori 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 Maori 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 12000 private freehold titles in the foreshore and seabed. That itself is an explicit act of racial discrimination against Maori and against the Maori 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 12500 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 Maori 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 Maori 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 hapu or whanau 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 whanau or hapu 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 Maori 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 Maori MPs from across the House particularly from the Maori Party and National will be supporting legislation that has at least two—and there will be more—clear examples of racial discrimination against Maori against customary title and against tikanga Maori and that this legislation will be put into law in just a few days’ time. 
Hon JOHN BOSCAWEN (Deputy Leader—ACT) 
: 
 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 Ngati Apa case in 2003. The name Ngati 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 Ngati 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 Ngati 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. Ngati 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 Maori 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 Ngati 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 Ngati 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 Ngati 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 Maori 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 Maori Party. The National Government agreed with the Maori 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 1500 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 Maori 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 4500 or was it 5000 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 4500 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. 
Hon DAVID PARKER (Labour) 
: 
 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 Maori 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 Maori or of non-Maori 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 Ngati 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 Maori that a lot of the titles that are being protected by those particular clauses in this legislation are in fact Maori titles. They are collective titles and they are sometimes Maori freehold titles that extend into the foreshore and seabed area. So rather than this aspect being discriminatory against Maori 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 Maori 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 Ngati Apa decision—who said that the effect of the Ngati Apa decision was that Maori 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 Ngati Apa decision found in respect of Maoridom 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 Ngati 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 Maori 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 Maori says is unfair to Maori and that some non-Maori say is unfair to non-Maori. 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 Maori 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 Maori 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 Maori 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. 
RAHUI KATENE (Maori Party—Te Tai Tonga) 
: 
 I am very proud to stand today as a daughter of Ngati Apa Ngati Kuia Ngati Koata Ngati Toa Ngati Tama Te Atiawa Rangitane and— 
Hon Mita Ririnui 
:Ngapuhi. 
RAHUI KATENE 
: —no not Ngapuhi thank you—and Ngati Rarua 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 Maori Land Court to seek clarification that the foreshore and seabed within the Marlborough Sounds is Maori customary land as defined in legislation. I remember the historic ruling by Judge Heta Hingston that the Maori Land Court does have jurisdiction to consider whether the foreshore and seabed is Maori 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 Maori 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 Maori 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 Maori to seek customary title in the High Court. 
The 2004 Act extinguished customary title; no whanau hapu 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 Maori in particular in its extinguishment of the possibility of establishing Maori customary title over the foreshore and seabed” was an indictment on the previous Labour Government and has provided a key source of concern for tangata whenua for 7 long years. 
Today we welcome a new approach: an approach that takes account of the intrinsic inherited rights of iwi hapu and whanau 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 whanau hapu 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 hapu and whanau. 
I want to also draw attention to the concept of manaakitanga which the Maori 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 whanau hapu and iwi and which gives credence to the principles of manaakitanga. But it does more than that: it recognises the mana tuku iho of whanau in relation to the takutai moana it recognises the right to participate in conservation processes and it provides greater certainty for iwi hapu and whanau. The bill restores the ability of Maori 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 Maori Party bill. We have delivered on our word to our members and we are pleased to stand here in support of the bill. 
Hon MITA RIRINUI (Labour) 
: 
 I find it very interesting that different members of the Maori 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 Maori 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 Maori 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 Maketu 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 Maori 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 Maori 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 Maori people. That misinformation is still out there and those people expect the Maori Party to deliver to them customary rights and customary title. 
Those members forgot to cover the complications Maori 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. Maori 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 Maori 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 Maori 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 Maori go to the Maori Land Court to have a settlement. The Maori 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 Maori 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 Maori 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 Maori in terms of the legal requirements around their customary interests or the nature and extent of their customary interests. Thank you. 
KELVIN DAVIS (Labour) 
: 
 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 Ngati 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 Ngati Apa some aquaculture space. Ngati 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 Ngati 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 Maori 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 Maori 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 whanau 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 Maori 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 hikoi 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 Maori Party could also well be its demise. We have seen what has happened to the Maori Party over the last few weeks. One of the key members in forming the Maori Party is now one of the key members in its falling apart. It is very interesting that the Maori 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 Maori 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 Maori 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. Maori 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 Maori and hearing what the issues were for Maori. 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 Maori 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 Maori Party bill because I have in my hand a letter from a Maori Party member who attended one of Te Ururoa Flavell’s sideshows when he went around the country trying to convince Maori 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 Maori 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 Maori Party member. He is saying this bill is not a Maori 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 Maori 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. 
PAUL QUINN (National) 
: 
 I move  
That the question be now put 
. 
HONE HARAWIRA (Independent—Te Tai Tokerau) 
: 
 Tena koe Mr Chairperson huri rauna kia ora tatou 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 Maori. The Minister does not support this bill because he would have dearly loved to provide the opportunity for Maori 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 Maori 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 Maori 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 Maori. When the Minister himself says Maori 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 whanau and no hapu 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 Maori 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 Maori 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 Maori 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 Pakeha population let alone the Maori 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 Maori people want. In fact of the 72 submissions that came in on the bill from Maori organisations whanau hapu iwi marae and Maori collectives only one supported this bill. We could hardly say that is broad-based Maori support. This legislation is not even what all of the Maori 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 Maori 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 Maori 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 Maori 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 korero. 
But when the Maori Party said this was its bill I could not understand why it would say that when the principle of tupuna title that the Maori Party wanted in the bill was summarily dismissed early in the process. I cannot understand why the Maori Party says this is its bill when even the Maori Party membership does not support this bill. When the Maori Party says this is its bill I ask whether it heard the submissions that were submitted to the Maori Affairs Committee that said this bill fails to properly recognise and provide for the mana of hapu 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 Maori and that it continues to breach Te Tiriti o Waitangi tikanga Maori 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 Maori 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 Maori in terms of mana in terms of tikanga Maori and in terms of kaupapa. E mihi atu ki a koe Mr Chairman. Thank you very much. Huri noa te Whare kia ora tatou katoa. 
JO GOODHEW (Junior Whip—National) 
: 
 I move  
That the question be now put 
. 
HILARY CALVERT (ACT) 
: 
 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 76000 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 Maori and non-Maori; 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 76000 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 hapu 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 Maori and non-Maori. 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 Maori. 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 whanau hapu 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. 
CRAIG FOSS (National—Tukituki) 
: 
 I move  
That the question be now put 
. 
Hon SHANE JONES (Labour) 
: 
 A kia ora ano tatou. Tena koe e te Kaihautu o te Whare mo tenei wahanga o a tatou whiriwhiri i tenei ahiahi. Ahakoa no te tonga noa atu koe ka nui taku hari i whakaritea kia tu ai ahau. He mohio noku me pehea te pukenga 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 Maori 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 Maori 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 Maori 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 Maori 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-Tohe / 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-Tohe / 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 Maori 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 Maori tupuna 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 Tipene’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 Maori Party at the next election. 
The Maori 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 Maori 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 Orewa. It is bizarre that the Maori Party would actually want to cuddle up to the Government and to bring the bill to pass.  
Hon TAU HENARE (National) 
: 
 I move  
That the question be now put 
. 
A party vote was called for on the question  
That the question be now put. 
Ayes 62 
New Zealand National 57; Maori Party 4; United Future 1. 
Noes 59 
New Zealand Labour 42; Green Party 9; ACT New Zealand 5; Progressive 1; Independents: Carter C Harawira. 
Motion agreed to. 
The question was put that the amendments set out on Supplementary Order Paper 207 in the name of the Hon Christopher Finlayson to the preamble be agreed to. 
A party vote was called for on the question  
That the amendments be agreed to. 
Ayes 62 
New Zealand National 57; Maori Party 4; United Future 1. 
Noes 59 
New Zealand Labour 42; Green Party 9; ACT New Zealand 5; Progressive 1; Independents: Carter C Harawira. 
Amendments agreed to. 
A party vote was called for on the question  
That the preamble as amended be agreed to. 
Ayes 62 
New Zealand National 57; Maori Party 4; United Future 1. 
Noes 59 
New Zealand Labour 42; Green Party 9; ACT New Zealand 5; Progressive 1; Independents: Carter C Harawira. 
Preamble as amended agreed to. 
Part 1 Preliminary provisions 
Hon CHRISTOPHER FINLAYSON (Attorney-General) 
: 
 I will make just a couple of preliminary comments about Part 1 of the Marine and Coastal Area (Takutai Moana) Bill. The part sets out—not surprisingly given its title—certain preliminary provisions. They outline the purpose of the bill. There is a very important and carefully defined Treaty clause and clauses that provide some definition of two terms: “accommodated activity” and “deemed accommodated activity”. They are activities that do not fall within the customary marine title permission rights. 
There are a number of amendments on the substantive Supplementary Order Paper 207. Clauses 8 and 9 will be moved from Part 1 and it is proposed that they be located within Part 3 before the resource management and conservation permission rights to which they relate. The terms “accommodated activity” and “deemed accommodated activity” have been very carefully refined to ensure that they better reflect the policy intent and to improve their workability. It is also proposed that the clauses that actually repeal the Foreshore and Seabed Act and restore customary interests—clauses 14 and 15—be moved to immediately after the purpose clause. That is what the Supplementary Order Paper proposes. 
There are a couple of other clauses I would not mind just briefly referring to. Clause 6 is an important clause. In the course of a number of submissions that were made to the Maori Affairs Committee as I understand it and also in the course of a number of written submissions hellfire and brimstone have been aired to the effect that if this legislation passes New Zealand’s sovereignty will somehow be diminished. Of course that is to address the very point that the Court of Appeal said was mistaken: to conflate the concepts of ownership and sovereignty. On 6 February 1840 when the Treaty of Waitangi was signed the British Crown assumed sovereignty of Aotearoa New Zealand. But at that time existing indigenous property rights continued to exist. In other words the assumption of sovereignty did not undermine those ownership rights. Time and time again when I have been speaking on this bill over the last period—more particularly in the last couple of weeks—people in the audience have got up and raised those matters with me. I have had to say to them that ownership and sovereignty are two different concepts. Clause 6 deals with that issue and the Supplementary Order Paper redrafts it not to alter anything substantively but to set it out more clearly. 
Clause 7 is the interpretation clause. A couple of points are worth making here. The first point deals with the definition of the “common marine and coastal area”. Paragraph (a) refers to those parts that are held in fee simple. Specified freehold land located in the area will not be included in the common marine and coastal area. I thought the position was very well articulated by the Hon David Parker in response to the Green Party member’s speech that nothing is to be gained by essentially indulging in a confiscation of land held in freehold title. It is important for the member of the Green Party Metiria Turei who says she adopts a beautiful pure approach to these matters to understand that the effect of what she is seeking would be to remove and put into the customary marine title area general land owned by Pakeha general land owned by Maori and also customary land. I do not think that is particularly wise and we will not go there. We will not confiscate Maori customary land from Maori nor will we confiscate general land that they may own. 
I will just say something about paragraph (c) of the definition of the “common marine and coastal area” which deals with the bed of Te Whaanga Lagoon in the Chatham Islands because there is some interesting background to that issue. The Waitangi Tribunal’s report of 2001 deals with the position of Ngati Mutunga and Moriori claims in the Chatham Islands. The tribunal found that the lagoon should be vested in a body that was representative both of Ngati Mutunga and of Moriori. In fact Ngati Mutunga had lodged a case in 1993 contesting the tribunal’s findings. They viewed the lagoon as their Maori customary land. The Maori Land Court adjourned the case for the tribunal’s hearing of the Ngati Apa case. So rather than put the lagoon into the common marine and coastal area we have specifically excluded it at this stage. If it is put into the common marine and coastal area it cannot be used in a Treaty settlement. It is my fervent hope that at a point in the not too distant future we will be able to enter into negotiations both with Ngati Mutunga and with Moriori and achieve a settlement that will deal with this lagoon. The lagoon should never have been put into Crown ownership in 2004. It is important that it not be moved across to the common marine and coastal area now so that it can be used in a Treaty settlement. 
The other definitions are very technical and I do not think that I need to take the time of the Committee in order to deal with them. 
METIRIA TUREI (Co-Leader—Green) 
: 
 It is really unfortunate that the Minister for Treaty of Waitangi Negotiations is prepared to deliberately misinterpret the issues particularly on the question of equitable treatment under the law for private title and customary title. The argument is—and it was upheld by the United Nations Committee on the Elimination of Racial Discrimination and by the ministerial review panel that looked at the issue—that there be equitable treatment of Maori forms of title and other forms of title. 
It is not a question of whether there should be confiscation of private title. The question is if we are going to have a principle of public access—I do not know how David Parker managed to completely misunderstand this point—then there is no justification for saying the principle should apply only to some forms of title and not to others. If we want to protect things like public safety for example or the environmental values of particularly sensitive areas or if there is some rational logical reason why public access to particular land should not be provided then one can set out criteria and ways of managing those decisions. But the title of the land should be irrelevant to whether the principle applies. The principle should apply in accordance with the needs of the public and issues pertaining to that particular land which are things like environmental sensibility rahui particular kinds of use and public safety. 
The issue for the Greens and for Maori—on this issue we have consistently spoken for Maori—is equitable treatment under the law and the right for customary title and Maori forms of tikanga title to be treated equitably by legislation. That was not the case with the 2004 law. It is not the case with this Marine and Coastal Area (Takutai Moana) Bill because the principles of for example public access apply differently to different forms of title. I wanted to clear that matter up. It does not matter how much other people try to misinterpret that issue; that is the clear principled position on the issue of public access for example. 
I have an amendment to delete clause 9 in Part 1. It is related to clause 8 but that is OK. As I said in an earlier call the issue is about accommodated activities which are activities of Government agencies and Crown entities public works and various kinds of things like that that could occur or are occurring on customary marine title land. The bill has all these definitions of people who can have these kinds of activities and the kinds of activities they can be and if they impact on customary marine title land the Minister effectively has the right to use take or acquire that land or to damage it if the Minister chooses and then to enter into negotiation with the holders of that customary marine title about what compensation might be available. I want to go through the legislation because it is a technical point but it is important. Again it is one of the discriminatory aspects of the bill that show that Maori title is being treated differently from other kinds of title and one of the reasons why the bill is considered to be discriminatory in ethnic terms. 
Clause 8 sets out the kinds of things that can be considered to be part of an accommodated activity. They include renewing an existing resource consent upgrading existing structures the replacement or relocation of existing structures or infrastructure and dredging which is a major issue for Maori in coastal areas. Dredging is one of those activities. That could mean things like using a coastal marine area as a dump for the discharge of sewage. If a council wanted to use a particular area of land as a discharge point for sewage for example in emergency situations then under this legislation there is a capacity for the council to make an application to use someone’s customary marine area as a dump for sewage. 
Clause 8 also describes who might be able to make such an application for a deemed activity an emergency activity an accommodated activity and the list is the Crown any Crown entity a network utility operator within the meaning of the Resource Management Act an electricity generator a port company Maritime New Zealand and the Auckland Regional Transport Authority. So the possible organisations that could seek to use the customary marine land of an iwi or hapu for this purpose are very broad and the powers are very significant. 
Clause 9 talks about a “deemed accommodated activity” which appears to be an extension. One of the activities listed in clause 9 is prospecting exploration mining operations or other forms of mining under the Crown Minerals Act. Of course mining in general is sensitive but marine mining is a particularly sensitive issue for Maori at the moment. There have been numerous claims to the Waitangi Tribunal dealing with the right of Maori to have some say over what happens in their coastal areas their rohe around mining applications. They have been upheld by the Waitangi Tribunal but denied consistently by the Crown. This bill again gives to others to Crown entities or their agents the right to make application to use Maori customary marine areas for the purposes of mining and mineral mining. 
Schedule 1 talks about what happens to an application to undertake that activity in a customary marine area. Clause 8 of Part 1 of schedule 1 states that the Minister must consider the application and any information provided by the customary marine title holders and must decide whether to waive the customary marine title holder’s permission right whether there are any other affected rights and whether to provide compensation—whether to provide compensation. So the Minister makes the ultimate decision. If a company wants to go on to Maori-held customary marine area land and undertake mining activities on that land contrary to the wishes of the holder of the title to that area then the Minister can provide for it and agree to it. Additionally the Minister can decide whether to provide compensation for loss of the use of or damage to that land. So the holders of a customary marine title are completely beholden to the intentions and desires of the Minister as to whether their land is able to be used by them freely whether some other group can use that land for something that it considers to be more important than the wishes of the iwi or hapu who hold that land and whether they are considered important enough to be given any kind of financial compensation for its loss. 
The Green Party again says that if we are to treat land equitably regardless of the title of the land then we must have the same laws apply. For freehold land that law is the Public Works Act which has a system for the provision of compensation. Compensation is not negotiable under the Public Works Act but it is negotiable when it comes to Maori tikanga title. It is negotiable because according to the Government—the Maori Party and National—if Maori hold title in an area of land it is not as important as anybody else’s title. That title can be taken from them for somebody else’s economic use or deliberate destruction for their own purposes and the Government can decide that it is not worth anything and not give Maori compensation. That is what these provisions in this bill do. That is how this bill is discriminatory against Maori and against Maori forms of title. It is grossly inappropriate that the process for the use of land that is in effect supposed to be treated like private land is so different from the process for other kinds of land. It is not appropriate to have such discriminatory racist provisions in this legislation. 
The Green Party is opposed to them and we have put forward our amendment to take them out. I understand that Labour has a similar amendment to remove those clauses. We will be supporting that amendment if it comes up first and we certainly hope Labour will support ours if it comes up first. There is no justification for treating these two different kinds of title differently. 
Hon DAVID PARKER (Labour) 
:  
I will just respond to Metiria Turei’s comments that I lacked an understanding as to why the Marine and Coastal Area (Takutai Moana) Bill is discriminatory in respect of protecting existing freehold title. The point I was making is that those areas that are in freehold title would not qualify as areas where there are unextinguished customary rights and therefore the issue does not arise. 
I do agree with the second point that Metiria Turei made. That is that if there are extant customary title interests in the foreshore and seabed and they are subsequently overridden in favour of some public project or some private project like mining then there ought to be fair compensation for the loss of the right that has been found to exist. That is one of the issues that we raised at the Maori Affairs Committee and on which the select committee because it ran such a poor process did not even report to the House. That issue was of concern to the Green Party Labour the Maori Party and others including ACT when they saw that effectively we could be saying there is an existing customary interest in the foreshore and seabed area that is properly recognised under this legislation and that it could be taken away at some future time and that the compensation if anything for taking away that right would be at the grace and favour of a future Government rather than a right at law as exists under the Public Works Act where a public work takes away some other property rights. That is an example of where I do agree with the Green Party that it is bad law. We have an amendment on the floor of the House to remove those provisions so that it is not of that effect. 
I raise another issue that relates to these Part 1 definitions. Part 1 sets out the outline of the Act and states amongst other things that we are to codify what is or is not an extant customary interest that should be recognised in a customary marine title. One of the problems that we get ourselves into here is that we have taken it upon ourselves in Parliament to try to codify things that the courts have never had the chance to properly interpret and say what it is that the common law provides for what is the range of rights that may be existing and the range of rights that may have used to exist—for example the right to mine for oil and gas which was clearly abrogated by the nationalisation of that resource back in 1948 I think although the Attorney-General might be able to correct me as to the date— 
Hon Shane Jones 
: 1937. 
Hon DAVID PARKER 
: I thank Mr Jones. It was nationalised in the Petroleum Act in 1937 so there is no longer an extant customary interest that would be able to be part of a customary title. 
The Government’s attempt to codify these provisions in Part 1 fails for a number of reasons. One is that National in Government and the Maori Party said that they were setting out to settle this issue yet we have the Maori Party through its co-leaders the Hon Tariana Turia and the Hon Pita Sharples and its whip Te Ururoa Flavell all saying that it is not accepted by them as settling the issue; it is just a first step along the way towards achieving a wider ambition. That shows that the primary ambition of the Government to settle this issue through the codification of the appropriate threshold test for the establishment of a customary title is not achieved and that is putting aside—and I do not mean to put aside as irrelevant—Hone Harawira’s concerns. His concerns are also relevant in so far as they show that this legislation does not settle the underlying dispute. 
What are some of the problems as far as ACT is concerned? ACT quite rightly makes the point of asking why it is necessarily correct that having a right of fishing or a right of navigation does not mean that one cannot get a customary title. Someone might want to put that argument in court and that person might be right because these issues have not been determined either in a New Zealand jurisdiction or in many overseas jurisdictions. ACT is right in saying that that argument might be relevant and that it ought to be listened to by the court. Conversely the arguments that some Maori submitters made that the requirement to prove exclusive use and control is too high a threshold test might be right too but they do not have the opportunity to claim that in court now. They are being stripped of the right to go to court and make those arguments because the codification of those issues puts them beyond the jurisdiction of the court. The court has to apply the codified tests rather than determine what the proper tests are for the establishment of a customary marine title. 
That I think is at the nub of where Labour got to on this. We freely acknowledge that the existing Foreshore and Seabed Act is wrong in that it does not allow people to get a court remedy but we also went further and said that Parliament has now had two cracks at codifying this and has not done it in a way that settles the issue for New Zealand because there is no compromise available that the parties from the different sides of the debate can accept. Therefore the whole thing should be referred back to the courts preserving public rights of fishing and access and the inalienability of customary interests and that is really all the legislation needs to do. That is why we have put forward amendments that amend the various provisions in this part to that effect. 
I also say in respect of the change to the threshold test that with the absence of legal advice as to the effect of the change of the test I remain ignorant as to what is the true effect. I will give an example of where this was being spun by the Government to different interest groups to different effect at the select committee. Te Ururoa Flavell was quite rightly concerned that land confiscations that were improper during the period post-colonisation should not mean that a claimant is disentitled from claiming a customary interest in adjacent foreshore and seabed in his view. He thought that if a claimant went to court and argued that then he or she might be able to convince the court that those customary interests are extant. 
The definition in this bill is changed from the original Act in that the requirement for continuous ownership of contiguous land has been removed. That is no longer a prerequisite to the establishment of a customary interest in adjacent foreshore and seabed. That was interpreted by National members who were trying to placate the Maori Party as saying that the very fact that claimants have had their land confiscated does not disentitle them from establishing a customary title but what those members did not say and what they never explored was what the effect was of the provision that one has to prove—I think the words are and the Minister in the chair the Attorney-General can correct me if I am wrong—continuous and exclusive occupation and control of the area of foreshore and seabed itself. 
The question then arises that if one does not control the adjacent land and therefore people have been free to wander down to the foreshore and seabed then how can a claimant show that they have exclusive control of the adjacent area of foreshore and seabed? None of these issues have been explored properly at the select committee because we did not have legal advice and because the National Government was determined to pull the wool over the eyes of the Maori Party— 
Paul Quinn 
: We explored it David. 
Hon DAVID PARKER 
: No those members did not explore that. They asked the question but then they blocked us from getting any legal advice so as to get the answer. That is not exploring it; that is very very poor process. So the poor old Maori Party is left ignorant of the fact that although it is true that the fact that adjacent land was confiscated is not an absolute bar to proving a foreshore and seabed interest in the adjacent foreshore and seabed it may well be a de facto bar given that one will not be able to show exclusive control of the adjacent area of foreshore. I know that because the Attorney-General has as much as confirmed that to me in discussions that I have had with him. But I have not been able to explore it in a way that gives me the benefit of either Crown legal advice or legal advice to the select committee because we were blocked from obtaining it. 
So we can see why at the end of this process there will be a sense of grievance on the part of Maoridom who will feel that they have been done over. I do not necessarily agree that their view that the common law test is a lot more generous than that is right but I can see why they will feel that they have had the effect of this legislation misrepresented to them and therefore they will have an ongoing sense of grievance and this issue will not be settled. That is why this bill fails the test that the Prime Minister laid out for it right at the start. He said the Government would not proceed with the bill if it did not settle the issue and it did not have broad support. That is but one instance as to why that is not the case. 
The consideration in the departmental report of this Part 1 of the bill is some 50 pages long. 
Hon MARYAN STREET (Labour) 
: 
 I am almost at a loss to know where to begin in making a contribution on Part 1 of the terribly flawed Marine and Coastal Area (Takutai Moana) Bill. Not only is the legislation flawed but the process around it is flawed. 
I begin with a bit of rebuttal to the earlier ACT speaker Hilary Calvert even though she was speaking on the preamble. It astonishes me how far the ACT Party can go in offending just about everybody. Its members used to refer to tikanga as mumbo-jumbo. In debate on previous legislation when we have been passing laws about Treaty settlements they have referred to tikanga as mumbo-jumbo. But today we have heard it called Alice-in-Wonderland stuff in relation to this legislation. I am just astonished at how far the ACT Party is prepared to go to offend as many people as possible. 
In this legislation—and I come to Part 1 which is the part under discussion at the moment—there is such a divergence of opinion united only in its opposition to this legislation. It must almost be unprecedented in this Committee. More people disagree with this legislation from a variety of positions around the country than agree with it. Sometimes National has wanted to characterise the opposition to this bill as being all ACT members. I dare say ACT wishes it had as many members as that. I have in my in-box filed under the title “Foreshore and Seabed” 250-odd emails that oppose this legislation for a variety of reasons. 
We come to clause 4 in Part 1 of this bill which states: “The purpose of this Act is to—(a) establish a durable scheme to ensure the protection of the legitimate interests of all New Zealanders in the marine and coastal area of New Zealand;”. This legislation palpably fails to do that. We have been given assurances that there will be a revisiting of this legislation. I am sorry that the Minister in charge of the bill the Attorney-General has been compelled—by others I suppose—to bring this legislation to the Chamber in this way at this time when the country’s interests are rightly diverted to Christchurch. He is being compelled to bring this legislation to the Chamber and to persist with it when it will clearly not satisfy a whole range of people and a whole range of interests. 
I draw attention to why this scheme will not be durable. I say to the Minister in the chair the Attorney-General that I wish this were going to be a durable scheme. Nobody wants a durable scheme more than we do. We got the last legislation wrong in respect of stripping the right to go to court to have claims tested. We got that wrong and we have said so and we have apologised. That remains on the record. We have also said that we want a durable scheme. We want to establish a durable outcome to ensure the protection of the legitimate interests of all New Zealanders. 
Hon Dr Wayne Mapp 
: A durable scheme on your terms however. 
Hon MARYAN STREET 
: Not on our terms I say to Mr Mapp but on mutually agreed terms. This Government will ram this bill through by a margin of 62 to 59. Those were the numbers in the last vote a few minutes ago. It does not augur well for clause 4 of Part 1. It does not augur well. It is being passed by a margin of three votes. For something as important as this bill—which should be durable testable able to withstand criticism and able to be justified to everybody across the country—three votes is not a sufficient margin by which this legislation should pass. It is too important. 
Hon Tau Henare 
: We’re not listening and we don’t care. 
Hon MARYAN STREET 
: Oh Mr Henare has just said the magic words “We don’t care.” Mr Henare has just said the magic words. The National Party does not care about the interests of all New Zealanders. 
Pita Sharples has said that the Maori Party is not entirely happy with the bill and neither are iwi leaders or the general public. I will pick up one part of that which also goes to the question of how durable this legislation or this scheme will be. Not one iwi—not one iwi—around the country supports this legislation. Mark Solomon and the iwi leaders have said that they oppose this legislation. He has said that to me personally. I have heard him say it. Not one iwi around the country supports this legislation. 
Let us go to the comments of Te Ururoa Flavell from the Maori Party. He has said that we will be going back. “We will … be looking at it again” he said publicly and he said there would be “another time for our people to come back and have another go in the future.” 
I say to the Minister that I wish this were a durable scheme. I wish this legislation acted in the interests of all people. But the opposition to this bill comes from right across the political spectrum from the offensive comments of ACT right through to iwi leaders. It comes from right across the political spectrum. That opposition makes this legislation faulty fragile and able to be undermined in a moment. That is what will happen to this bill. 
We have an opportunity to get this right. This bill does not need to be rushed. It certainly does not need to be rushed under cover of the Christchurch earthquake. It does not need to be taken at this pace. The select committee process did not need to be aborted in the way that it was. The select committee members did not need to have legal advice denied them. The fact that the Government has Simon Bridges on its side of the select committee does not constitute independent legal advice. It does not constitute independent legal advice. 
If one were to look at the departmental report one could see quite clearly from page 59 that a number of submitters— 
Hon Tau Henare 
: This member wasn’t even at the select committee. 
Hon MARYAN STREET 
: But I have looked at the report—which some of the members of the select committee might have done well to do—and I can see that a number of submitters were concerned that the bill as it had finally emerged was not the same as the Government’s proposals set out in its consultation document. More time needed to be taken on this for the integrity of the legislation and for the integrity of the process. 
The process is a travesty. The fact that Mr Henare does not care is a travesty. This legislation which could have had the complete support of this entire Parliament has been an opportunity lost. I am sorry that it is an opportunity lost I tell the Minister; it could have been better than this. I am sorry that the Minister has been rolled in this process. It did not need to happen like this and the select committee process did not need to be impaired and aborted in the way that it has been. What we have here will not deliver the purpose of this Act. 
Hon JOHN BOSCAWEN (Deputy Leader—ACT) 
: 
 Thank you Mr Chair for the opportunity to speak on this part. My colleagues the Hon Heather Roy and Hilary Calvert also wish to make a contribution. In a short time I will address certain definitions in the Marine and Coastal Area (Takutai Moana) Bill. In particular I will refer to the definition of “marine and coastal area” which is set out in clause 7 the definition of “planning document” which appears later in that clause the definition of “RMA permission right” and its implications also set out in clause 7 and the definition and significance of the meaning of “accommodated activity” which is at the beginning of that clause. But before addressing those very specific provisions of this part I need to make two general comments to put some of these issues in context. 
The first thing I will do is acknowledge the contribution earlier in this debate of Rahui Katene. She got up in this Chamber and said she was proud to be a daughter of Ngati Apa and went on to list a number of other iwi. And she should be proud—she should be absolutely proud. One has to look no further than the article that appeared in the  
New Zealand Herald  
last Wednesday penned by the Hon Pita Sharples and the Hon Tariana Turia in which they set out the details of this bill and its implications. One has only to read that article to realise how proud Rahui Katene should be and how proud the Maori Party should be. The passing of this bill will be the culmination of many years of activity. And the bill will pass; the Government has told us that it is committed to pushing it through. As Maryan Street has told us it will pass by the very very narrow margin of 62 votes to 59. This legislation is a major issue. I do not believe that its full implications are understood by the wider New Zealand population. In fact I am not even sure they are understood by the media. I urge all New Zealanders or certainly everyone listening to this debate to go to the online edition of the  
New Zealand Herald  
and read the article by Tariana Turia and Pita Sharples that was published last Wednesday. 
I will quote two sentences from it. They started by saying that “The new bill acknowledges that ALL coastal iwi have connections to the coast. Their mana tuku iho (inherent authority) entitles them to protect their wahi tapu and to be consulted on conservation and resource-management issues.” The interesting thing about that is it protects the rights of all coastal iwi. Does it protect the rights of all other New Zealanders who are not coastal iwi? Does it protect the rights of all other New Zealanders who have property on the coast? I have travelled up and down the country over the last 6 months trying to create awareness of this issue and when I spoke to the Taupo rotary club back in October I met a gentleman who told me that he can trace his ancestry back to the early 1800s certainly back to prior to 1840 when the Treaty of Waitangi was signed. His family owns freehold land and it can trace its ownership back to prior to the Treaty of Waitangi. The family still owns that land today. It has owned it for over 150 years. Under this bill his interests are not protected. His interests are not protected and his interests are not recognised. The National MPs sit there and shake their heads. All I can say to those National members is that they do not understand the provisions of this bill. Sadly the implications of not understanding those provisions and of not reading the many hundreds if not thousands of emails that have come in will dawn on them far too late. 
The second point I will raise before I get down to looking specifically at the implications of the definition of “common marine and coastal area” the implications of “planning document” and the implications of “RMA permission right” is about a reference made earlier this afternoon to the Coastal Coalition. Coalition members have been demonised in this debate. They have been accused by Mr Finlayson of spreading misinformation. Mr Finlayson has responded to the Coastal Coalition with a page set out on the Beehive website. All New Zealanders can go to the Beehive website. I imagine that Mr Finlayson is ashamed of what appears on that website. Under the heading “Setting the Record Straight” I read and New Zealanders will read: “You may have heard opponents of the Marine and Coastal Area Bill making inaccurate claims about the legislation. We want to set the record straight.” 
I encourage Amy Adams if she looks at nothing else to look at this single page. The Attorney-General recognises four specific issues. I could make some points on all four of them but in the interests of time I will make a point on just one which relates to Part 1 and the definition of “common marine and coastal area”. The article states that opponents claim that “The bar has been lowered on the qualifying criteria so anyone can apply”—“The bar has been lowered on the qualifying criteria so anyone can apply”. The Attorney-General says that “The most rigorous test is proving uninterrupted and exclusive use and occupation of an area of the common marine and coastal area from 1840 to the present day.” So “The most rigorous test is proving uninterrupted and exclusive use and occupation …” since 1840. “Many areas of New Zealand are not eligible because of this requirement.” 
Well most New Zealanders and I suspect most National members who will be voting for this bill would think that was a very tough test. It is a tough test but it is not actually the test. People do not have to prove that they have had continuous and exclusive occupation and the reason I say that is that under the very provisions of this bill it is acceptable for people who are not part of the claimant group to have fished in an area to have boated in an area and to have navigated through an area yet the claimant group can say that it has continuously and exclusively occupied that area. That is an absolute fiction; it is a charade to say that we are making the test continuous and exclusive occupation when in actual fact we are not. The tragedy is that members of the public will wake up to that fact. National is punting that they will not wake up to it until after the election on 26 November but that they will wake up I have no doubt. 
Let me turn now to the definition of “marine and coastal area”. As I said earlier the ACT Party has a number of amendments on this part that we want to speak to. We are proposing amendments for example to the definitions in clause 7 of “local authority” “mana tuku iho” “mineral” and “planning document”. Let us look at the definition of “marine and coastal area”. What is the definition of “marine and coastal area” set out in clause 7? The definition states “marine and costal area—(a) means the area that is bounded—(i) on the landward side by the line of mean high-water springs; and (ii) on the seaward side by the outer limits of the territorial sea;”. So the marine and coastal area goes from the high-tide mark to the outer limits of the territorial sea—it goes out 12 miles. 
The reason that is important is that the bill provides for a massive transfer of wealth from all New Zealanders to certain select iwi. Under the provisions of this bill it is assumed in the absence of information to the contrary that customary title is held in all seabed and foreshore in all areas of the marine and coastal area. The bill actually states that customary title lies with an iwi claimant and that it is up to the Government to prove that that is not that case—clause 105 is the significant clause. The reason I raise this issue is it has extreme significance. It has extreme significance for the definition of “marine and coastal area” and as a consequence for the definition of “common marine and coastal area” because under clause 105 it is up to the Crown to prove that customary title does not exist as opposed to the iwi proving that they have customary title. 
Another key definition is the definition of the Resource Management Act permission right. 
KELVIN DAVIS (Labour) 
: 
 The Marine and Coastal Area (Takutai Moana) Bill is an indictment on the Maori Party. In fact not only is it an indictment on the Maori Party but also I suspect it will be its epitaph. The Maori Party has focused its efforts exclusively on repealing the Foreshore and Seabed Act 2004 and clause 4(2)(a) provides for the repeal of the Foreshore and Seabed Act. That is the one thing on the Maori Party’s list that its members can tick off. It is the one thing on the Maori Party’s list that they can say they have achieved in the 5 years they have been in Parliament. 
The reality is that under the Maori Party and National outcomes for Maori have gone backwards not forwards. Members of the Maori Party have focused exclusively on the repeal of the Foreshore and Seabed Act to the detriment of issues that really matter to Maori. They do not have a plan for the Maori economy to move forward. We did not need a  
Native Affairs 
 survey last night to tell us that only 34 percent of Maori actually consider the Foreshore and Seabed Act to be an issue of any significance. The real issues that Maori are interested in are unemployment the cost of living the sale of assets and the rise in GST—things that the Maori Party voted for. 
The CHAIRPERSON (Lindsay Tisch) 
: Part 1. 
KELVIN DAVIS 
: I am saying Mr Chair that Maori Party members have focused solely on clause 4(2)(a) which repeals the Foreshore and Seabed Act to the detriment of all the other issues that really mean something to Maori such as unemployment and the rise in the cost of living. 
On clause 4 “Purpose” Maori Party members also say that they want to establish a durable scheme. This measure will not be durable. They have said already that this bill is just the start and that every 3 years come election time they will focus again on this issue—a bit at a time. This measure is not durable. It is about entrenching Maori in grievance. It is about making sure that Maori always have something to be upset about and always have something to complain about so that people will vote for the Maori Party because it is the party of grievance. Maori are better than that. We need to rise above the grievance mentality. We need to rise above it step above grievance and actually move on and make real changes in our lives. We need to address unemployment we need to address the Maori economy and we need to ease the cost of living for our people. 
I heard Hilary Calvert talk about tikanga. She obviously has a problem with the word “tikanga”. The trouble is that Maori do not have a problem with the word “tikanga”. We understand what it means. I get annoyed and I got annoyed during the Maori Affairs Committee hearings when people say that tikanga can end up meaning anything. Well it does not mean anything if one understands the Maori language. If people understand Maori customs and Maori culture then there is not an issue with the word “tikanga”. It is an issue only for those people who want to exclude themselves from the indigenous culture of New Zealand—they are the ones who have a problem with it. The word “tikanga” is pretty plain and clear to Maori. If the Coastal Coalition ACT Party members and anyone else has an issue with the word “tikanga” I suggest to them that they enrol at their local night classes if there are any in their community left standing and learn a little bit about Maori culture Maori language and Maori tikanga. 
Clause 7 defines the marine and coastal area. The marine and coastal area is “the area that is bounded—(i) on the landward side by the line of mean high-water springs;”. What we are talking about is the wet sand—the wet sand. That is what the Maori Party cares most about—wet sand. It does not care about issues that are really facing Maoridom but it cares about wet sand. We in the Labour Party care more about issues that are really affecting Maori people and as I have said those issues are unemployment the underachievement of Maori kids health and the longevity of Maori lives. As I said the marine and coastal area is defined in this bill and it is wet sand that we are talking about. 
There were a number of submitters who had not actually read the bill. They came in and they raved about the marine and coastal area. I remember one submitter in Whangarei who told us that this bill was the reason that coastal developments in Northland had basically finished and that there was no more building happening on the coast of Northland. I asked him whether he had read the bill and he said no. So I said: “Where in the ocean are you going to build your house?” He asked me what I meant and I told him that if he had read the bill he would know that the bill is about the wet sand—everything below the high tide mark. 
As I said earlier in the debate on the preamble there are two extreme polar opposites. A number of people from the Coastal Coalition and that ilk were put up to turn up and criticise this bill without actually having read it. I found that even though I opposed the bill I ended up having to defend the Minister in charge of the bill Chris Finlayson from some of the rabid ill-informed misinformation that was being put out by the members of the Coastal Coalition such as the fact that coastal developments in Northland had ceased because of this bill. That submitter had obviously misunderstood the issue. He did not understand that the lack of development was due to the lack of an economic plan from the National Government and was not due to this bill. 
Planning documents also caused a bit of anxiety for a number of people. They were worried about iwi and hapu planning documents that were going to “change the world as they knew it.” I have a planning document here. It is from Ngati Hine. It is all about working together cooperatively with regional councils and district councils and it is about working together for the good of everyone. I will read one part of the document. It states: “Te Rununga o Ngati Hine will promote and enhance partnerships between Ngati Hine central government and its agencies and regional and district councils.” This is not about being exclusive or about separate Maori development or apartheid. This is about integrating cooperating and establishing relationships. All Ngati Hine ask is that “the relationships of Ngati Hine need to be cognisant of our status as tangata whenua kaitiaki and Treaty partner.” I ask all those people who are so anti-Maori anti - planning documents and anti - everything else where the harm is in what Ngati Hine is asking. They want to work together with central government local government and regional government and I believe that that is an honourable and great thing for them to seek. 
I turn to the definition of “road”. There is the issue of Ninety Mile Beach. Ninety Mile Beach is deemed a road from what I understand. People cannot drive on Ninety Mile Beach at high tide unless they want to drive at about a 45-degree angle for 60 miles of sand dunes. But when the tide is out all and sundry use that road: tour buses people going fishing and people walking their dogs—everybody uses Ninety Mile Beach. I believe that it is deemed a road. So I wonder about the status of Ninety Mile Beach. It was not cleared up in my mind at the select committee whether Ninety Mile Beach is being used as a road but it is actually part of the coastal common marine area so I have that issue still wandering around. 
In terms of “warden” there is a lot of concern by members of the Coastal Coalition and their ilk that wardens are going to be standing guard over areas of the coast. The bill does not say “Maori wardens”. Maori wardens are normally elderly people in their 70s who stand at the gates of marae and direct people in cars to car-parking areas. I do not think that the word “warden” in this bill means a warden as set out in the Maori Community Development Act. However it is a big stretch for the Coastal Coalition and others to try to make a case that in the dunes of every beach there will be— 
JO GOODHEW (Junior Whip—National) 
: 
 I move  
That the question be now put 
. 
Hon SHANE JONES (Labour) 
: 
 Kia ora ano tatou. 
Hon Tau Henare 
: Tena koe. 
Hon SHANE JONES 
: Ae. I want to take on board the admonition offered by the Minister in the chair the Hon Christopher Finlayson that we focus on Part 1 of the Marine and Coastal Area (Takutai Moana) Bill. I want to direct our attention to pages 10 and 11. I see some complications and I would be interested to get a response from the Minister. I imagine that work is taking place in relation to how High Court judges and indeed lawyers representing the parties in the inevitable litigation will deal with the notion of mana tuku iho and tangata whenua. I am presuming that the High Court is exploring whether it will need additional expertise or whether some of the—dare I use the term—tikanga of the court need to be amended although I would note that Christian Whata certainly one of the most able young Maori lawyers of his generation is about to join that august company. 
Hon Christopher Finlayson 
: He has done. 
Hon SHANE JONES 
: Unfortunately Mr Ririnui a man of Waiariki origins did not extend a po’hiri when he went to the hakari the feast for Christian Whata to me and Kelvin Davis from Ngapuhi so that we could continue our peace-loving ways in that part of Aotearoa. However it is good that Maori High Court judges will be there but I hope that the Minister will take a call on that because although we are full of passion and are making various political points after this bill eventually finds its way permanently into the landscape of statutory law someone will actually have to pick it up in 2014 2015 2016 and 2017 and make decisions on behalf of groups as to whether they are hapu or iwi. 
I direct the Minister’s attention to purpose clause 4(1)(b) which goes to the heart of what this bill is about. The purpose is according to that paragraph to recognise an ill-defined mana tuku iho concept exercised by iwi and hapu as tangata whenua. I can assure the Minister having spent many years along with three other Maori MPs in this Chamber dealing with these issues in a different part of the coastal environment called the fishing industry that this will be hotly litigated. This will be hotly debated. I imagine that a judge will at the end of the day draw on what has been defined as an iwi in the fisheries settlement. If that proves to be the case—and the Minister in the chair is nodding in the right direction—then I think that that is a sensible way to go. But we should not for a moment imagine that that will bring litigation to an end—unfortunately. It is a further example in the bill and it might be said of any bill when we endeavour to bring our Maori terminology into the law. 
To that score I do not think it is a bad idea unlike our friends from the ACT Party. I will not let it pass that they can stand unchallenged and imagine that they will be rewarded for trying to deprecate Maori culture by analogising it to  
Alice in Wonderland 
. I want members to know that one of the figures in  
Alice in Wonderland 
 was a dodo and that party will go the way of the dodo if it continues to deprecate those members of Maori descent in this Chamber and the passion with which we seek to maintain culture and pass it on to the next generation. So I encourage members of that party and their supporters to think that perhaps the dodos are Muriel Newman and that gaggle of personalities who through viral means are trying to leave us with the impression that the country is overrun by angry rednecks hating Maori language coming into legislation. I cannot help it if they are actually Don Brash’s voters. They were on that side of the Chamber and now they are disappearing elsewhere but more about the Mad Hatters at a later stage. 
I come to clause 6. I have signalled that the High Court if measures have not been taken ought to ensure that its tikanga and rules are evolved to deal with these challenging issues but more important that we have the right level of expertise there because I am a great believer in the inherent jurisdiction of the High Court—and I see it. I have said earlier that it was a bleak day when we left that very vague and ambiguous in our time. I am on record as saying that so it would be good to know that that is the case. I want to move right along to clause 6. I imagine that the Minister is putting before the Committee a distillation of what will be the responsibilities in international law of the Crown given that we are going forward with an idea that the actual seabed and foreshore takutai moana coastal space and so on will not be vested in the Crown as such but will be an open space a public space—takiwa marea is off the top of my head my translation for open and public space. 
But I would caution us against providing any opportunity in this bill that allows quite frankly for a debate and a legal tussle as to what is the scope of the Crown’s sovereignty because the logical conclusion is that once we strip away the Crown as being the putative or exclusive owner on behalf of society and we introduce this other notion it will be challenged in the courts as to what is public space and so on how far private property rights stretch even if they are customary associations customary interests or perhaps enforceable rights and how far the notion of a dimension of an unfettered public space actually goes. So I ask for a bit of clarification around those issues because there is the notion that this bill will turn from a debate about historic associations and residual interests into a debate on whether any subsisting sovereignty elements are in the actual seabed and foreshore legislation other than the ability of a democratically elected Government to regulate. Unfortunately I was not on the Maori Affairs Committee save for one or two meetings and I am not actually apprised of how that was explored by submitters but it is an important point. 
Unlike the lucidity that is evident in my speech questions on the day from Paul Quinn who is hollering and who could also be a part of the  
Alice in Wonderland 
 fairytale generally bamboozled the submitters. Even when I was there people wanted to answer his questions but such was the ambiguity of his questions that he was consistently told by the chair to turituri to keep quiet. I do not know how well they get along with each other. 
I want to now come to the notion of the marine and coastal area. According to the ACT spokesman there is an assumption that because we have defined the area in question as being out there on the horizon te pae and on the mean high-water spring that somehow this represents an opportunity for muck and gouging. Ambiguity should be addressed. If there is ambiguity it is reasonable that the Minister should during the course of our deliberations say that it is just a simple physical description and that it does not represent an assignment of potential wealth or residual interests that will one day grow from being perhaps a rock or a defined discrete area that a hapu still has and that then somehow grows further into including all the ironsands off the west coast of Te Ika-a-Maui. Unfortunately that would be of no good to my iwi because we are on the east coast in the far north and as a consequence of iwi activists not the least of whom is Margaret Mutu our settlement gets further and further away. But that is another matter. I do not mean to be personal in any denigratory way or in any manner of form. I just want it known that I am not motivated when I mention ironsands. But I do think it is a reasonable point. I have my senior colleague here. He and I both have some concerns about these ambiguities because there is a host of changes. If what is at stake is a significant natural resource and is valuable to the overarching interests of the country then it is good for the Minister to say that no it will not actually be lost. 
Hon HEATHER ROY (ACT) 
: 
 It gives me great pleasure to rise and speak to Part 1 of the Marine and Coastal Area (Takutai Moana) Bill. I would like to concentrate on two clauses in this part of the bill. The first is the outline of the Act which is clause 3 in particular. I think this is also relevant to clause 7 which covers the definition of common marine and coastal area. 
Under this bill the assumption is that iwi and hapu have customary rights over all the common marine and coastal area unless the Crown can prove otherwise. Of course this is the new terminology for what we previously knew in the foreshore and seabed legislation which was debated under the previous Labour Government. Iwi and hapu have customary rights over all common marine and coastal area unless the Crown can prove otherwise. One of the things that ACT through all iterations of this debate since the 2004 legislation has talked about is that everybody who feels they have a genuine ownership bid should be able to have their day in court so that is relevant to that point. Also the bill contends that iwi have guardianship ahead of all others. To my mind the crux of the matter relates to property rights. There were a number of submissions to the Maori Affairs Committee that talked about property rights. That is always the yardstick that I use when we think about how we proceed how law is put in place how we deal with things particularly before the courts and when the courts should be the decider if you like of who has genuine ownership. 
I will probably run out of time in this call to talk about property rights but there are a number of issues that should be considered when we look at the detail of this bill. I think the bill is being justified to Pakeha and the public generally speaking largely on the basis of what will happen to the coastline in the future. Of course there are large areas of coastline that should be protected from development and exploitation. I do not think there would be any dissension in the Chamber from that view at all. Reserve status is justified for it for example but we should not forget that we have one of the largest coastlines in the world and alongside that one of the lowest population densities and a declining economic capacity to maintain First World health education and infrastructure systems. Stephen Franks submitted to the select committee that he deplores the absence of any proper defence of genuine property interests in coastal areas and I have to say that on that point I agree with him. 
The bill creates—some would say covertly—a form of exploitation right for some iwi and hapu. Those rights in areas where they can get marine titles can easily be supported but the circumstances of creation of those titles could simply discredit any kind of status other than reserve. They do not give their owners the true owner’s stake in preserving the long-term value of their interests. That is something that I think we in this Chamber should be genuinely concerned about. In that respect I welcome the debate that we are having today. 
I think the bill is promoted without any proper defence of true property interests for Maori. It might well surprise many of those on the Opposition ranks to hear me talk about that. But the bill removes such interests from local authorities and even from current lease or licence holders. The bill should have been I would have thought for a National Government an opportunity to strengthen true property rights for everybody all citizens of this country whether they be Maori or non-Maori. 
We should also consider as a general part of this debate why we have property rights why they are important and why they are a fundamental grounding of our legal system and what we stand for. Property rights protect minorities against majorities so that those who have the money the wealth and those who have the ability for whatever reason to wield a big stick are not able to do so to the detriment of those who have a genuine property right. 
Hon PAREKURA HOROMIA (Labour—Ikaroa-Rawhiti) 
: 
 E tu atu tenei e te Kaiwhakahaere o te Whare hei korero atu mo te ahua o te pire nei. E tautokotia atu nga whakaaro e puta a-waha a toku hoa nei a Rawiri Parker me Shane Jones e whakaaro atu mo te ahua o te tikanga mo te takutai moana e puta atu te whakaaro e waiho atu mo te Minita anake engari e whakaaro atu ra tatou mo te haerenga ki te koti. 
No reira he nui atu nga whakaaro mo te wahi tahi nei. E tu kaha atu e puta atu te whakaaro mo te ahua o te tikanga me te ture me te waihotia atu nga tupuna ki a tatou mo tatou a ngai Maori na te mea i roto i te tuhinga e ki atu wetahi waihotia atu ki nga koti na te mea i roto i a tatou i reira ke wetahi o nga iwi mai ra no e mau tata ana ki te takutai moana e ora ana te manaaki a nga hua o Tangaroa e nui atu te ahua pera tonu. E whakaaro atu he aha ai e ki tenei anake te ahua anake e mau ana mo tenei tino take. No reira e whakaaro atu mo nga nekeneke haere mo te ture nei. 
E timata atu te korero e puta a-waha atu a te Minita nei mo tana whakaaro mo te whakaae te kore whakaae mo te ture nei. Na te tuhinga nei e wehewehe atu mo nga whakaaro a wetahi e pirangi e waihotia atu ki te Minita e whakaaea kare e tae atu ki nga koti kare e tae atu i roto nei o te Whare Miere. No reira tera ano te mea i roto i a tatou i konei e wero ana mo tenei wahi. Na te mate hoki pera tonu atu te ahua mo wetahi o ratou e tae atu i te koti. E mau atu te matauranga mo nga kaiwhakahaere o te koti i roto i te ture. 
[ 
Mr Chairman I rise to speak about the nature of this bill. I support the views expressed by my colleague the Hon David Parker and those expressed by the Hon Shane Jones relating to tikanga—how it relates to the foreshore and whether it should be left solely to the Minister. We favour going to court.  
I have many comments to make about the foreshore—strong views about tikanga within the law and the legacy left by the ancestors for us the Maori people because in this bill it says that courts can make a ruling. But we are mindful too that some tribes have lived close to the foreshore for a long time—nurtured and looked after Tangaroa’s resources at the same time. There are many examples like that. I say leave it for the courts to determine. Why make this the only real reason for it? So we should really think about the implications of this legislation.  
When the Minister began his address he expressed his view in regard to agreeing or opposing this legislation. Now to some this bill is divisive because it is left to the discretion of the Minister. He determines whether a settlement goes before the courts or whether it goes through our parliamentary process. That is another reason why we on this side of the Chamber oppose this. However those who choose to go to court will also be confronted with a similar situation if their more knowledgable ones give advice to court officials 
.] 
Sitting suspended from 6 p.m. to 7.30 p.m. 
Hon Darren Hughes 
: I raise a point of order Mr Chairperson. I am sorry to interrupt my colleague; this should not take long. I have not had a chance to consult with the Opposition’s junior whip about the part of the Marine and Coastal Area (Takutai Moana) Bill that we are currently considering. My specific question is how many Minister’s amendments are there to this particular part? 
The CHAIRPERSON (Eric Roy) 
: They are on the Table. 
Hon Darren Hughes 
: Do you know how many there are? 
The CHAIRPERSON (Eric Roy) 
: I do not. I have just come here as you have. They are accessible on the Table. 
Hon Darren Hughes 
: So all the amendments that are available for debate and for the voting on this particular part have been tabled at this time by the Minister? 
The CHAIRPERSON (Eric Roy) 
: That is correct. I understand so. 
Hon PAREKURA HOROMIA 
: It is interesting to note that the High Court will have a fair bit of sanctioning power and what certainly needs to be ensured at this early stage is that the judges have the ability to cope with Maori tikanga and understand the nuances of hapu and iwi conflict important as it is. It is the issue that needs to be broken down. There can possibly be an agreement but what is more important is that we do not fuel or encourage more conflict amongst the whanau and the hapu. In some parts that wehewehe is something that certainly puts asunder a lot of hard work by people in this building by people outside and especially by the whanau hapu and iwi. That is of interest. 
I want to come back to this issue because I want to commend the Minister for ensuring clause (3)(2)(a) in Part 1 of the Marine and Coastal Area (Takutai Moana) Bill “sets out the purpose of the Act and acknowledges the importance of the marine and coastal area to all New Zealanders and the customary interests of whanau hapu and iwi in that area”. I really commend the Government and encourage it to hold that line because if one has been an activist and a collector and gatherer of the fruits of the takutai moana then it is important that there is a sequence that has been well driven and well trodden. 
First of all it starts off with the whanau the family who go to ruku pupu to gather seafood to make sure that they are replenished and that they feed their families well. The next is hapu who in a sense try to determine and define boundaries and those issues relevant to that hapu—the collection of those whanau. Last of all is the iwi who may in relation to representing the whanau and the hapu ensure that all those issues that are relevant to working there or to doing anything with the foreshore and seabed are recognised and managed well in accordance with the tikanga and with mana. There is inherent clarity in that. Certainly I commend the Minister on that. 
Hon DAVID PARKER (Labour) 
: 
 I will deal with a matter that arises from clause 7 that relates to the definition of “common marine and coastal area”. The importance of this definition is that parts of the marine and coastal area which is also defined in the bill are subject to claims for customary interests and they can be made only in areas that are common marine and coastal area within the definition of the bill. Of course the definition that came to the Maori Affairs Committee is the definition that is still set out in the bill. That is now being amended by Supplementary Order Paper 207 from the Minister in the chair the Attorney-General and it changes the definition substantially. 
In this regard I refer the House to a letter from the New Zealand Law Society dated 7 March. This letter was written on behalf of the Law Society by its president Jonathan Temm who is becoming increasingly concerned at the poor processes used by this Government not just in respect of this bill but also in respect of another bill. Indeed as we sit here in another part of this complex today similar poor process is being adopted in respect of a telecommunications bill. Increasingly the Law Society is concerned that the effect of this is that we can have bad law and we can make mistakes because we do not allow changes to proposed law to have proper scrutiny. The letter stated: “The Law Society has noted the Maori Affairs Committee by majority is recommending the passage of the Marine and Coastal Area (Takutai Moana) Bill without amendment. The appended list of possible amendments prepared by officials in light of submissions received”— 
Hon Tau Henare 
: What’s wrong with that? 
Hon DAVID PARKER 
: Mr Henare should listen to the rest of the letter from the Law Society because there is lots wrong with the process. Paragraph (c) of the letter continues: “Your subsequent public statement that you intend introducing amendments to the bill presumably by way of Supplementary Order Paper on its return to the House” and “One such amendment will be to require that negotiated agreements concerning customary marine title be given effect through legislation. The society is concerned that the foreshadowed process of introducing significant amendments by way of the SOP procedure will remove the opportunity for pre-legislative scrutiny of these amendments. There are two specific concerns” and then it notes them. I do not have time to go into them in full but essentially the letter states that there is not as much public scrutiny of proposed amendments. 
Paul Quinn 
: Is that all? 
Hon DAVID PARKER 
: “Is that all?” is pretty revealing of the attitude of the Government to using proper processes so that we do not make mistakes as to law. 
I will give members just one instance and I have time in this call to develop only the one instance although there are lots of others that I want the Minister to comment upon. The definition of “common marine and coastal area” in clause 7 as it came to the select committee stated that excluded from the definition of common marine and coastal area was “(b) any area that immediately before the commencement of Part 2 is both owned by the Crown and also has a status of any of the following kinds:” and then it listed conservation areas within the Conservation Act national parks reserves within the meaning of the Reserves Act and wildlife management reserves. The Minister has already talked about paragraph (c) of the definition relating to Te Whanga Lagoon in the Chatham Islands but he has made no reference to the changes being made to paragraph (b) and the reason therefore. I have some questions for the Minister because I am actually not sure what the import of this amendment is. 
I had a call today from someone who said that the effect of this amendment is to exclude from the exclusions areas such as the Hauraki Gulf Marine Park. The Hauraki Gulf Marine Park Act created a marine park that extends from the Firth of Thames out to Little Barrier Island and Great Barrier Island. Those islands no doubt include areas of foreshore and no doubt there are areas of seabed that are also affected by the Hauraki Gulf Marine Park Act. I would have thought given that preceding that Act those areas were vested in the Crown that those areas would be protected under the existing definition that came to the select committee and that those areas would be outside the areas for which there could be claims of customary marine title. Now this has been changed by Supplementary Order Paper 207 it seems so that those areas—and this is a big area; the whole of the Firth of Thames or a substantial part of it as I understand it out to Great Barrier Island and Little Barrier Island— 
Hon TAU HENARE (National) 
: 
 I move  
That the question be now put 
. 
CATHERINE DELAHUNTY (Green) 
: 
 Tena koe Mr Chair. Tena koutou e te Whare. I will address Part 1 of the Marine and Coastal Area (Takutai Moana) Bill but I would like to give some context. In 2004 my partner and I were the original token tauiwi who travelled from Tauranga to Wellington with Ngati Porou led by Tame Te Maro and with Ngati Kahungunu led by Moana Jackson Ngahiwi Tomoana and Mereana Pitman. This uplifting hikoi joined the rest of Aotearoa on the forecourt of this Parliament to do more than oppose the Labour Government’s legislation. The hikoi upheld the political and cultural strength of whanau hapu and iwi who had travelled together to remind the Government and the rest of the country that their mana whenua status and rights in the realm of the takutai moana had never been superseded given away or handed over and that they were therefore the last people who needed to prove their relationship. Raupatu was not acceptable that day and raupatu is not acceptable today. 
We sit here now in 2011 and later we will be arguing over the tests as another Government wishes to establish the recognition of a tangata whenua right to go to court. Regrettably the repeal of the original legislation is not the solution although it is being repealed in this bill tonight. Some are arguing that the bill is a step in the right direction but restoring due process in a manner that basically maintains basic inequality of access to justice cannot be celebrated. 
In terms of Part 1 the purpose of the bill is not in my view at least to provide true justice and equity under Te Tiriti o Waitangi let alone access to the beach for all New Zealanders. Access to the beach for all New Zealanders has never been the purpose of this or the previous legislation. The “haters and wreckers” have never been the hapu katoa asserting their mana whenua. Perhaps the Coastal Coalition might like to consider its responsibilities in the fostering of hate and the wrecking of local community and hapu relationships through its particular and perverse take on this bill. 
There are numerous issues to be addressed from the privileging of private title-holders in another part of this law to the unfair thresholds for establishing so-called customary rights within 6 years. Expressions such as “customary title” and “common space” have been given new and particular definitions and the courts will no doubt have a field day at others’ expense establishing those meanings. 
For me the underlying purpose of the bill is expressed in clause 9. The Crown under whatever name we choose wants control of the coastal resources so that it can bargain with multinationals. From Rio Tinto on the western coast to Petrobras in the east we have proposals for mineral exploration sand mining and oil drilling. The Crown does not want to bargain with iwi as well so it is much tidier for the Crown if it is the decision maker. 
The public thinks this bill is about their right to a picnic in the sand but really it is about the development of undersea and coastal wealth at the expense of the environment and future generations. While we fight over the mirage of public access the companies are busy working with our own Crown research entities assessing the opportunity to drill for oil and mine for sand. 
On the original hikoi in 2004 lots of people were acutely predicting the intensification of the coastal prospecting that we see today and which is being upheld by clause 9. But as has been said before we will fight on the beaches. If we go to the East Coast we will find hapu katoa fighting for the right to protect their area from oil drilling and those hapu see a direct relationship between Part 1 and their rights as mana whenua to protect their land from Petrobras a particularly unedifying multinational whose history includes many instances of oil-spills. Therefore the rights of the indigenous people of Aotearoa need no proof but their right to protect the environment alongside other citizens in terms of their relationship with Tangaroa and Papatuanuku is in need of our protection. 
If we want to look in detail at the way in which the coastal and economic zone has been expanded we will see a large increase in prospecting and mining rights which clause 9 absolutely establishes the Crown’s right to maintain its hold over. We will find that many citizens as well as tangata whenua are very concerned about that. We can keep talking about access and about the tests which we will talk about in the debate on Part 2 but in the end the tangata whenua do not have to prove anything. They were here first. 
What we do need to prove as a country is our capacity to look after our resources and respect people whose kaitiakitanga goes back through generations and who do not have to prove it. I think what we need to prove is our capability to look after our resources—our vulnerable coastal environment and our vulnerable communities who want to maintain their mana whenua rather than having to establish it through a court of law. I am very strongly in favour of the Green Party’s position on this bill. We oppose it. 
KELVIN DAVIS (Labour) 
: 
 Before the dinner break I was talking about the wardens and the definition of “warden” under clause 7 of the Marine and Coastal Area (Takutai Moana) Bill. I think it is important for the record that we differentiate between the wardens appointed for the purpose of this legislation and wardens appointed under the Maori Community Development Act. The wardens under that Act are good-natured normally elderly people who stand at the gates of marae to direct traffic. For the purposes of this legislation wardens basically— 
Paul Quinn 
: Discrimination Kelvin! That’s terrible! 
Hon Shane Jones 
: Rark the wardens up! 
KELVIN DAVIS 
: I am sorry but I am having trouble concentrating because of the interjections not so much from Mr Quinn this time but more from my own colleague. The wardens will be responsible to a customary marine title group for the following functions: to assist in implementing prohibitions or restrictions entering wahi tapu for the purpose of performing their functions and advising members of the public of any applicable prohibition or restriction. 
The question is about how those wardens are to be identified by members of the public and how the public will know that there will not be any old Tom Dick or Hori turning up and telling them they cannot be in a particular place. That question needs clarification in terms of this bill—exactly what “warden” means. There was hysteria again from the likes of the Coastal Coalition that we would have Maori in sunglasses and with baseball bats scaring people off the foreshore and seabed. When we think that this bill probably relates to only 2 3 or 5 percent of New Zealand’s coastline and that most of the areas that we are talking about will be relatively isolated such as around the North Cape it is pretty unlikely that—and this is just to settle the nerves of the ACT Party and the Coastal Coalition—there will be a big Maori in sunglasses and with a baseball bat standing on the edge of the beach to warn people off. 
Members might go to the North Cape but I doubt whether in the history of all of Aotearoa New Zealand more than 2000 people over the last two millenniums have set foot on those beaches. If we left our cars at the road and walked in it would probably take about 4 or 5 hours to get there. I would say that if any warden was dumb enough to be standing there waiting for somebody to turn up just so that he or she could turn them away the chances are that that warden would probably be more likely to give them a cup of tea and welcome them to go and have a swim at the beach just because he or she would want to have some company. 
The warden issue needs to be settled. People need to know that we will not have big burly Maori frightening off everybody. There was another guy obviously another Coastal Coalition person who said he was scared that his surf life-saving club would not be able to practise surf life-saving. He said it was the oldest surf life-saving club in the Tauranga area he had been a surf lifesaver there for 50 years and now it was ridiculous that when somebody needed to be rescued from the ocean the club would have to ring up and ask permission from a warden or somebody like that so that its members could cross over the sand and get to the water. We said: “Mate have you read the bill?”. The answer was that he had not or if he had he had totally misunderstood it because if his surf life-saving club had been there for 50 years there is no way that that beach could be deemed to have been exclusively used by Maori and he had nothing to worry about. 
I want to talk about the wahi tapu. Again this issue got the Coastal Coalition’s back up. I cannot think of many areas—in fact I can think of only one area—underneath the high-tide mark that may be deemed to be a wahi tapu. It is the resting place at Takou Bay of the  
Mataatua 
 waka. According to our traditions the Mataatua came over and settled down in the Whakatane area somewhere. There was a bit of a ding-dong between a couple of brothers who were the chiefs on the waka and our tupuna Puhi— 
JONATHAN YOUNG (National—New Plymouth) 
: 
 I move  
That the question be now put 
. 
HILARY CALVERT (ACT) 
: 
 I will talk about three things in relation to Part 1 of the Marine and Coastal Area (Takutai Moana) Bill. I want to talk about the seabed airspace and accommodated activities.  
I will start with the seabed. Historical use of the seabed any significant distance from the shore seems impossible to prove and allowing title to be granted to iwi allows for unjust and potentially divisive future claims. Historically no one has crawled about on the seabed miles from shore. 
Hon Tariana Turia 
: How do you know that? 
HILARY CALVERT 
: There is no chance of anybody holding their breath on the seabed from 1840 till now—that just cannot happen. From the 18th century to the 20th century the Commonwealth generally considered territorial waters to extend for 3 nautical miles. That distance was the length of a cannon shot and thus the distance of water a nation could defend from—[ 
Interruption 
]  
Hon John Boscawen 
: I raise a point of order Mr Chairperson. I am sorry to have to interrupt my colleague but I am hearing harangues from Labour Opposition members. I also have to listen to continued interjections from Tariana Turia. The reason I specifically object is that when I gave my speech in the first reading debate Tariana Turia lodged a point of order objection to me complaining— 
The CHAIRPERSON (Eric Roy) 
: The member must address those matters at the time. We do not deal with historical matters here. I will deal with the matter of noise in the Chamber. This is a reasonably impassioned debate and at times the noise levels have come up and gone down. Overall I think the noise levels are reasonably acceptable but from time to time I need to caution members and I think we need just a bit of decorum and a wee reminder of that. 
HILARY CALVERT 
: The Hon Turiana “Turei” seems to believe that— 
Hon Tariana Turia 
: I raise a point of order Mr Chairperson. If the member is going to use my name she can pronounce it correctly. I am offended that she does not. 
The CHAIRPERSON (Eric Roy) 
: That is correct. Members need to take a bit of care about these matters. 
HILARY CALVERT 
: My apologies. The member who interjected suggested that I do not know whether somebody could have held their breath on the seabed since 1840. Perhaps I do not know and perhaps she does not know either. 
As I was saying we have had territorial waters extending to 3 nautical miles. That distance is the length of a cannon shot and was what people could defend. Putting aside the distinct lack of cannons in 1840 and any ability for anyone living in New Zealand at that time to defend even that region it is quite clear that nobody has ever had the exclusive use and occupation of the seabed beyond that mark—let alone to the 12 nautical mile limit that came in only last century. It should therefore be near to impossible to grant any title to any iwi claiming such rights. That does not mean however that the courts do not know something I do not and that aspect of that legislation should not be tried by the courts. 
I turn to the airspace. The bill’s explanatory note states that the foreshore and seabed is “the area from the high-water mark at mean high-water spring tides extending seawards for 12 nautical miles. This area includes the subsoil and the waterspace and airspace above this area (but not the air or water itself).” What is the airspace? ACT wants the foreshore and seabed issue to be left to the courts where it belongs but in a perverse way we may get our wish. One can see the definition of airspace going to court time and time again as we are forced to deal with questions like whether paragliding businesses will have to pay whenever they take somebody paragliding in the airspace—or the air? How tall does a ship’s mast have to be before it is in the airspace? What about surfcasters who throw their lines across the air into the water? It may sound crazy but for those directly affected by this bill—those whose livelihoods are at stake—it is very serious indeed. 
The third point I would like to make— 
Hon Tau Henare 
: Tonight we are witnessing the discovery of a new planet. It’s time to go home. 
HILARY CALVERT 
: Certainly the honourable interjecting member can take a call any time he wants to if the Chair allows it. The definition of “accommodated activity” has been changed on Supplementary Order Paper 207 put forward by the Minister in the chair Chris Finlayson. The definition no longer includes activities that can be lawfully undertaken without resource consent. In practice this will mean that activities that never needed resource consent may be controlled by the holder of a customary marine title. The intention of the bill was to allow things that were already going on to continue and for anything that currently has resource consent to be able to continue. I am sure the Minister is a meticulous person so presumably he left out on purpose the definition that included— 
Dr PAUL HUTCHISON (National—Hunua) 
: 
 I move  
That the question be now put 
. 
DAVID SHEARER (Labour—Mt Albert) 
: 
 I would like to take a call on the Marine and Coastal Area (Takutai Moana) Bill particularly in respect of clause 8. Clause 8 is a rather long and large litany of the meaning of “accommodated activity”. The bill attempts to codify “accommodated activity” meaning one of those things that will be exempt from the bill. 
To start with I would like to explain very clearly and carefully why Labour supports abolishing clauses 8 and 9—and Labour has put up an amendment in the name of David Parker—so that we do not have to codify a rather ridiculous and long list of exemptions that should go to the court and have the High Court decide on those matters. I take into account also my colleague Parekura Horomia’s reservations about the High Court and the ability of the High Court—as has been seen in other cases—to understand and to weigh up Maori tikanga in terms of being able to make that particular decision. 
I want to look at a couple of issues around clause 8—in particular clause 8(1)(d): “an existing activity that is undertaken in accordance with a resource consent or other lawful approval granted under an enactment that was replaced by the Resource Management Act 1991:”. That brings an enormous amount of latitude to the interpretation of the bill rather than trying to codify every single possibility and it going to the High Court for it to be ruled on in that particular way. 
I will take a moment to compliment the officials—some of whom are here in the Chamber—for the extraordinary job they have done in putting together more than 5500 submissions and nearly 300 oral submissions for the departmental report from the Ministry of Justice. The really unfortunate side of this is that it will not be used to its full extent because we have not had the ability to debate the bill in the way we should have when it is of such vital importance to New Zealand. Instead it will be research for the enormous number of PhD and master’s degree students who will be looking through it to show where the Government went wrong when it tried to ram through legislation that was so divisive in this country. I remind members that this bill is legislation that John Key said he wanted to sort out and to resolve once and for all. Unfortunately that will not be the case. 
I come back to clause 8 because it is the area I particularly want to focus on. I will quote from the officials’ departmental report on clause 8(1)(i): “The purpose of this clause is to ensure that the existing marine mammal sanctuaries”—and as I was saying before here we get into the detail of the bill that is trying to codify every single aspect of a possible situation that might come up—“continue to operate as they have done prior to the enactment of this bill. Any substantial iwi and hapu rights over such areas should have already been considered and dealt with during the establishment phase of the reserve.” But of course the reserve might have already been in place and then a customary right might be established. The question then becomes which has sway over the other. It goes on to state that management activities will depend on the nature of each sanctuary but could involve activities such as monitoring and gathering information. In this situation in relation to clause 8(1)(i) the number of areas that the legislation attempts to codify were quite rightfully pointed out by a number of submitters. 
STUART NASH (Labour) 
: 
 My colleague David Shearer has spoken about clause 8 of the Marine and Coastal Area (Takutai Moana) Bill and I will talk about clause 9. It deals with the meaning of “deemed accommodated activity” as opposed to “accommodated activity”. I do not quite understand a few of the words. I hope the Minister in the chair the Attorney-General will provide me with a couple of definitions. 
In subclause (1) “deemed accommodated activity means … a nationally or regionally significant structure or infrastructure”. I am quite keen to understand what defines a “nationally significant structure or infrastructure” and a “regionally significant structure or infrastructure”. What does that mean? Is it a simple road or are we talking about a bridge or jetty? “Significant” is quite a wide term and everyone will be aware that what is significant to one person is not necessarily significant to someone else. Subclause (1)(a) introduces a word that is so subjective I would argue as to be almost meaningless. I can see this process being tied up in the courts for quite a long time arguing that very point: what is “significant”? 
I turn to schedule 1 “Process by which certain new activities in customary marine title area become deemed accommodated activities”. For example clause 1 of Part 1 of schedule 1 states: “Prior to the application under the Resource Management Act 1991 for any resource consents for new nationally or regionally significant structures or infrastructure in a customary marine title area the proposed structure or infrastructure may become a deemed accommodated matter in accordance with this Part.” 
Schedule 1 lists the process under which something becomes a deemed accommodated activity. It is quite complicated and clause 4 of Part 1 of schedule 1 goes from the ridiculous to the sublime. It states: “Upon receipt of an application under clause 3 … the Minister must consider and decide to—(a) seek more information from the applicant; or (b) decline the application on the basis that insufficient information has been provided or the proposed structure or infrastructure does not meet all or any of the requirements and criteria set out … ; or (c) make an initial decision on whether there is sufficient information to demonstrate that all of those requirements and criteria have been adequately addressed.” 
If one is applying for something to be a deemed accommodated activity one has to satisfy seven different tests. Even then the Minister may say that a little bit more information is needed or that not enough information has been provided. The Minister may just make an initial decision on whether there is enough information. I can see this process being tied up for a long time in the courts. 
Hon Shane Jones 
: Litigation. 
STUART NASH 
: Mr Jones has hit the nail on the head. Members know who will get wealthy from this legislation. An army of lawyers will argue the definition of “significant”. 
As I said clause 1 of Part 1 of schedule 1 talks about new nationally or regionally significant structure or infrastructure. What about a jetty that is falling down? I can think of several around the place that are unsafe. If they were done up they could become nationally or regionally significant structures or infrastructure. Does that mean if it is not new one does not need to go through this whole process? It is like doing up an old vintage car: all we need is the vehicle identification number. We can change the whole car yet the car is a vintage if it has that number. We could plant a 150-year-old bit of wood in the sand and say that we do not need to go through the whole process because the wood was not a new structure or infrastructure in terms of schedule 1. 
Again I come back to what is meant by “significant”. I cannot make that call and I do not think anyone can but I tell members who will be able to make that call. A District Court judge will make the call on what constitutes “significant”. 
MICHAEL WOODHOUSE (National) 
: 
 I move  
That the question be now put 
. 
The CHAIRPERSON (Eric Roy) 
: The question is— 
Hon John Boscawen 
: I raise a point of order Mr Chairperson. I understand that you are taking the vote that we stop debate on this part of the Marine and Coastal Area (Takutai Moana) Bill. 
The CHAIRPERSON (Eric Roy) 
: No let me correct the member. I am giving the Committee the opportunity to decide whether this is the termination of the debate. 
Hon John Boscawen 
: I raise a point of order Chairperson. This is very important legislation. It has far-reaching ramifications for all New Zealanders. There is a massive transfer of wealth from all New Zealanders to selected iwi and the ACT Party has already— 
The CHAIRPERSON (Eric Roy) 
: I have taken all those things into consideration— 
Hon John Boscawen 
: Point of order— 
The CHAIRPERSON (Eric Roy) 
: I am on my feet. I intend to put the motion. 
Stuart Nash 
: I raise a point of order Mr Chairperson. 
The CHAIRPERSON (Eric Roy) 
: I will hear the member. 
Stuart Nash 
: I ask for clarification Mr Chairperson as a new member because sometimes we are a little bit hazy on these rules. I understood that you cannot put the motion if new information in the bill had been brought forward. Am I wrong in that? 
The CHAIRPERSON (Eric Roy) 
: I make a judgment across a range of things as to when it is time for the closure. I take the matter very seriously and the member will be aware that I have been in Parliament for some time. It is not my intention to curtail debate for the sake of being obstreperous so I am going to put the motion. 
Hon John Boscawen 
: I raise a point of order Mr Chairperson. The ACT Party has given notice that we have suggested a number of amendments on this bill. You seem to be denying us the chance to put them and I ask that the Speaker be recalled. 
The CHAIRPERSON (Eric Roy) 
: The member is entitled to do that. I can forecast what the result will be; it has happened several times. If the member wants to do that that is his right. 
Hon John Boscawen 
: I move  
That the Speaker be recalled.  
Motion agreed to. 
House resumed. 
Speaker Recalled 
The CHAIRPERSON (Eric Roy) 
: Mr Speaker the Committee of the whole House has determined that you should be recalled to rule on my decision to take a closure on Part 1 of the Marine and Coastal Area (Takutai Moana) Bill. Debate on Part 1 has included clauses 3 to 10 and schedule 1. There have been a number of amendments to the bill but the debate has been going for just on 2½ hours. There have been 27 calls. Every single member in the Chamber who has been seeking a call has had an opportunity to have at least one call; some members have called three times. I considered that the debate had reached a conclusion so I accepted the call for the closure. 
Hon JOHN BOSCAWEN (Whip—ACT) 
: 
 I raise a point of order Mr Speaker. I wonder whether I could speak to the reasons I have asked for you to come back to the Chamber. It is hard to imagine a more important and wide-ranging bill before this House in this 3-year parliamentary term. The ACT Party has strong opposition to this bill. We have lodged hundreds of amendments; some are very substantial. We gave notice to the Chair that we wanted to debate those amendments and we gave notice to the Speaker of a number of issues that we wanted to raise. For example clause 4(1)(a) talks about protecting the legitimate interests of all New Zealanders. We think this bill protects the legitimate interests of only some New Zealanders. We are being denied the chance to put our arguments. We think that the closure has been put far too early and we ask that you rule that the ACT Party has the right to speak to its amendments and to oppose this bill in the vigorous way it deserves to be opposed. 
Hon DARREN HUGHES (Senior Whip—Labour) 
: 
 Mr Speaker I do not want to comment on the substance of the motion moved by Mr Boscawen to recall you; he has given his reasons to you for that. The only thing I would note—not by way of challenging the Chairman—is that we started the debate on Part 1 the part we are currently on at a quarter to 5. So we have spent about an hour and three-quarters on Part 1. I think the Chairman has added together the debate on the preamble and the debate on Part 1 to get to that figure he used of 2½ hours. It has certainly been a substantial debate and I think that has been because there have been so many amendments set out on the Minister’s Supplementary Order Paper. That might be of some help to you as you are reflecting on the ruling you will inevitably make. 
Hon JOHN BOSCAWEN (Whip—ACT) 
: 
 I will make one additional point Mr Speaker. One of the reasons we are having to debate the amendments in the Committee is as you may be aware the Maori Affairs Committee met to consider a 520-page report— 
Mr SPEAKER 
: I do not believe that is helpful to the House. The member made a perfectly fair point of order a moment ago but I do not think we need to get into that detail. The Speakers’ rulings on this issue have been in place for some time and in fact in our current Speakers’ rulings go back to 1931. There is good reason why Speakers’ rulings are the way they are and that is that the Chair of the Committee of the whole House is obviously in the best position to assess the state of the debate. The Chair has reported to me that there have been 27 calls on Part 1 and that some members have had up to three calls. The Chair of the Committee of the whole House is clearly in the best position to assess whether a closure motion when put should be accepted. Speakers’ ruling 65/3 is particularly clear on this matter: “The [chairperson] is the sole judge as to whether or not he ought to sanction the putting of the closure motion and it must be left entirely in his hands.” Excuse the sexist language but obviously it was a male Chair of the Committee back in those days. What is more Speaker’s ruling 65/4 goes on to state: “It is not for the Speaker to second-guess the Chair’s judgment [on the closure].” 
If the Committee of the whole House does not agree that the closure should be accepted then the Committee votes on the matter and is at liberty to vote down a closure motion. So I must I believe in all conscience stick with the existing Speakers’ rulings on this matter—that the Chair of the Committee must be the sole judge of whether the closure motion should be accepted and put to the Committee for the vote. I must on that basis return the matter to the Chair of the Committee. 
Stuart Nash 
: Point of order Mr Speaker— 
Mr SPEAKER 
: I will briefly hear a point of order from the member. 
STUART NASH (Labour) 
: 
 I raise a point of order Mr Speaker. Just very briefly. You mentioned there had been 27 calls on this debate and that some people had spoken three times. Speakers’ ruling 65/1 states: “The moving of a closure motion is treated as a speech.” I think you may find that a number of those 27 calls if not half were probably closure motions because at the end of every Labour Opposition ACT or other speech a closure motion was put by the Government. 
Mr SPEAKER 
: I have made a ruling and therefore the matter is now closed. I declare the House back in Committee. 
Hon John Boscawen 
: Point of order— 
Mr SPEAKER 
: I have declared the House back in Committee. I have made my ruling on the matter and declared the House back in Committee on the bill. 
In Committee 
Debate resumed. 
Part 1 Preliminary provisions ( 
continued 
)  
HONE HARAWIRA (Independent—Te Tai Tokerau) 
: 
 I raise a point of order Mr Chairperson. I tried to rise a couple of times during the debate but unfortunately these gentlemen over here were standing up quite frequently and speaking quite loudly and I never ever got the opportunity to speak. By the time you got to make your ruling you had already made it before I could get back up again. So I would appreciate having the opportunity to speak to this part. 
The CHAIRPERSON (Eric Roy) 
: I have to say to the member that I was being particularly attentive and I did not notice him. That is probably my mistake. His objection to my not giving him a call is noted and I will be more vigilant in the future. 
Hon JOHN BOSCAWEN (Deputy Leader—ACT) 
: 
 I raise a point of order Mr Chairperson. My understanding is that when you reported to the Speaker you said to the Speaker that all those members who sought the call had been given it. Surely Mr Hone Harawira— 
The CHAIRPERSON (Eric Roy) 
: The matter has been dealt with. Please sit down. 
A party vote was called for on the question  
That the question be now put. 
Ayes 62 
New Zealand National 57; Maori Party 4; United Future 1. 
Noes 58 
New Zealand Labour 42; Green Party 9; ACT New Zealand 5; Independents: Carter C Harawira. 
Motion agreed to. 
The question was put that the amendments set out on Supplementary Order Paper 209 in the name of Hilary Calvert to clause 4(1)(a) and (c) be agreed to. 
A party vote was called for on the question  
That the amendments be agreed to. 
Ayes 47 
New Zealand Labour 42; ACT New Zealand 5. 
Noes 73 
New Zealand National 57; Green Party 9; Maori Party 4; United Future 1; Independents: Carter C Harawira. 
Amendments not agreed to. 
The CHAIRPERSON (Eric Roy) 
: The next amendment in the name of Hilary Calvert on Supplementary Order Paper 209 to clause 4(1)(d) is ruled out of order as not being a serious amendment. Hilary Calvert’s next amendment to clause 4(2)— 
Hon John Boscawen 
: I raise a point of order Mr Chairperson. You have ruled out Hilary Calvert’s amendment to paragraph (d) of clause 4(1). You say that it is not a serious amendment. What we have done there is to substitute the words “Treaty of Waitangi” for “te Tiriti o Waitangi”. We noticed that the Hon Christopher Finlayson has changed the wording on his Supplementary Order Paper from “whanau hapu iwi.” to “iwi whanau hapu.” So if it is good enough for the Hon Christopher Finlayson to change around word order surely it is good enough for the ACT Party to move amendments that do the same. 
The CHAIRPERSON (Eric Roy) 
: There are a suite of Speakers’ rulings on page 111 to page 114. I have sought advice and I have given this matter some serious consideration. The amendment is ruled out of order. 
The question was put that the amendment set out on Supplementary Order Paper 209 in the name of Hilary Calvert to clause 4(2)(a) be agreed to. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 47 
New Zealand Labour 42; ACT New Zealand 5. 
Noes 73 
New Zealand National 57; Green Party 9; Maori Party 4; United Future 1; Independents: Carter C Harawira. 
Amendment not agreed to. 
The CHAIRPERSON (Eric Roy) 
: The amendments in the name of Hilary Calvert to clause 4(2)(b) to (e)(i) set out on Supplementary Order Paper 209 are also ruled out of order. 
The question was put that the amendment set out on Supplementary Order Paper 209 in the name of Hilary Calvert to clause 4(2)(e)(ii) be agreed to. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 47 
New Zealand Labour 42; ACT New Zealand 5. 
Noes 73 
New Zealand National 57; Green Party 9; Maori Party 4; United Future 1; Independents: Carter C Harawira. 
Amendment not agreed to. 
The question was put that the amendment set out on Supplementary Order Paper 209 in the name of Hilary Calvert to clause 5(b) be agreed to. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 47 
New Zealand Labour 42; ACT New Zealand 5. 
Noes 73 
New Zealand National 57; Green Party 9; Maori Party 4; United Future 1; Independents: Carter C Harawira. 
Amendment not agreed to. 
The CHAIRPERSON (Eric Roy) 
: We come to Hilary Calvert’s first amendment to clause 5(b) as set out on Supplementary Order Paper 209. The question is that the motion be agreed to. Those of that opinion will say Aye the contrary No. The Noes have it? [ 
Interruption 
] I think we might have just done that one. I am sorry. I am getting confused—I have amendments crossed out. I apologise to the Committee. So the next amendments which are to clause 5(b) and (c) set out on Supplementary Order Paper 209 are out of order as is the first amendment to clause 7. We then go to Hilary Calvert’s amendment to clause 7 to insert a definition— 
Hon David Parker 
: I raise a point of order Mr Chairperson. At the risk of disagreeing I am not sure that we did do the first amendment to clause 5(b). I do not think it had been put. 
The CHAIRPERSON (Eric Roy) 
: I will just consult as to what the Clerk has got on the top of the vote. I am a little confused myself but I thought we had. Yes we have. I neglected to cross one out that was ruled out of order. That was how I made that mistake. 
Hon David Parker 
: I raise a point of order Mr Chairperson. I am unclear. Which one did we pass and which one has been ruled out of order? 
The CHAIRPERSON (Eric Roy) 
: We have not passed any. They have all been voted down. 
Hon David Parker 
: Which one was voted down and which was ruled out of order? You have described them both as amendments to paragraph (b). 
The CHAIRPERSON (Eric Roy) 
: There are two amendments to clause 5(b). The first one we voted on and the second one is out of order as is the one to clause 7. 
Hon John Boscawen 
: I raise a point of order Mr Chairperson. You have just used the words “as is the one to clause 7.” There are actually several amendments to clause 7— 
The CHAIRPERSON (Eric Roy) 
: The first amendment to clause 7. If the member was listening before I started on the second clause 7 amendment which is in order. We are now going to vote on it—the one that inserts a definition of “directly affected” as set out on Supplementary Order Paper 209. That is the one we are now voting on. Is everybody clear? 
The question was put that the amendment set out on Supplementary Order Paper 209 in the name of Hilary Calvert to clause 7 to insert a definition of “directly affected” be agreed to. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 47 
New Zealand Labour 42; ACT New Zealand 5. 
Noes 73 
New Zealand National 57; Green Party 9; Maori Party 4; United Future 1; Independents: Carter C Harawira. 
Amendment not agreed to. 
The CHAIRPERSON (Eric Roy) 
: The next amendments to clause 7 to amend the definitions of “Director-General” “environment” etc. are out of order. 
Hon DAVID PARKER (Labour) 
: 
 I raise a point of order Mr Chairperson. With respect I would have thought that if that amendment passed the wording of the statute and the meaning would change. Why therefore is it out of order? The Government has the power to vote them down but I would have thought that it was within order. 
The CHAIRPERSON (Eric Roy) 
: If the Committee would show a bit of patience there are a few that I have dealt with. It is around omitting “Conservation” and substituting “Department of Conservation”. In Speakers’ ruling 114/1 although there is a somewhat subjective judgment on behalf of the Chair I am guided by minor word changes or alternative forms of words as in Speaker’s ruling 111/3. Those are the things taken into consideration. 
Hon DAVID PARKER (Labour) 
: 
 I ask for some consistency then because many of the Minister’s amendments in his lengthy Supplementary Order Paper make corrections to words that could be argued to be of similar effect. I ask the Chair to apply similar rulings to the Minister’s amendments when it comes to the consideration of them. 
The CHAIRPERSON (Eric Roy) 
: In this case I deem that “Conservation” and “Department of Conservation” are the same thing and under Speakers’ rulings 114/1 and 111/3 I have ruled it out. But I note what the member has said. So we move to Hilary Calvert’s amendment to clause 7 to amend the definition of “mana tuku iho” as set out on Supplementary Order Paper 209. The question is— 
Hon JOHN BOSCAWEN (Whip—ACT) 
: 
 I raise a point of order Mr Chairperson. I am not trying to waste your time; I really am very confused. If we go back to the beginning of clause 7—the Supplementary Order Paper I have is 209—the very first definition under clause 7 referring to “aquaculture activities” you ruled out of order. The next one on the definition of “Court” we voted on and it was lost. The next one— 
The CHAIRPERSON (Eric Roy) 
: Sorry slow down. The next amendment to clause 7 we did vote on and it was lost— 
Hon John Boscawen 
: That was the definition of “Court”. 
The CHAIRPERSON (Eric Roy) 
: The third amendment to clause 7 I have ruled out and now we are about to vote on the fourth one. 
Hon JOHN BOSCAWEN (Whip—ACT) 
: 
 I raise a point of order Mr Chairperson. You just mentioned “Conservation”; the fourth is to omit “given” from the definition of “Crown entity”. I am looking at my Supplementary Order Paper— 
The CHAIRPERSON (Eric Roy) 
: “Director-General”— 
Hon John Boscawen 
: “Director-General” is about the sixth or seventh amendment in. 
The CHAIRPERSON (Eric Roy) 
: The Hilary Calvert amendments to clause 7 that I have ruled out are to amend the definitions of “Director-General” “environment” “High Court Rules” and “local authority”. Those ones are not significantly different but the next one is so we are about to vote on it. 
The question was put that the amendment set out on Supplementary Order Paper 209 in the name of Hilary Calvert to clause 7 relating to the definition of “mana tuku iho” be agreed to. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 5 
ACT New Zealand 5. 
Noes 115 
New Zealand National 57; New Zealand Labour 42; Green Party 9; Maori Party 4; United Future 1; Independents: Carter C Harawira. 
Amendment not agreed to. 
The result corrected after originally being announced as Ayes 47 Noes 73. 
The question was put that the amendment set out on Supplementary Order Paper 214 in the name of Hilary Calvert to clause 7 relating to the definition of “marine and coastal area” be agreed to. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 47 
New Zealand Labour 42; ACT New Zealand 5. 
Noes 73 
New Zealand National 57; Green Party 9; Maori Party 4; United Future 1; Independents: Carter C Harawira. 
Amendment not agreed to. 
The CHAIRPERSON (Eric Roy) 
: The next amendments to amend the definitions in clause 7 of “mineral” and “plan” as set out on Supplementary Order Paper 209 are out of order. 
The question was put that the amendment set out on Supplementary Order Paper 209 in the name of Hilary Calvert to clause 7 relating to the definition of “planning document” be agreed to. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 5 
ACT New Zealand 5. 
Noes 115 
New Zealand National 57; New Zealand Labour 42; Green Party 9; Maori Party 4; United Future 1; Independents: Carter C Harawira. 
Amendment not agreed to. 
The result corrected after originally being announced as Ayes 47 Noes 73. 
The CHAIRPERSON (Eric Roy) 
: The next amendments in Hilary Calvert’s name again to clause 7 amending definitions about “privilege” “proposed plan” “public notice” “quota management system” etc. on Supplementary Order Paper 209 are out of order. 
The question was put that the amendments set out on Supplementary Order Paper 209 in the name of Hilary Calvert to clause 7 relating to the definition of “responsible Minister” be agreed to. 
A party vote was called for on the question  
That the amendments be agreed to. 
Ayes 5 
ACT New Zealand 5. 
Noes 115 
New Zealand National 57; New Zealand Labour 42; Green Party 9; Maori Party 4; United Future 1; Independents: Carter C Harawira. 
Amendments not agreed to. 
The result corrected after originally being announced as Ayes 47 Noes 73. 
The CHAIRPERSON (Eric Roy) 
: I am advised that I may have truncated the words around the amendments I ruled out of order previously so I will read the statement in its completion so there is no confusion. The amendments to amend the definitions of “privilege” “proposed plan” “public notice” “quota management system” “recognition order” “regional council” “regional document” “register” and “resource consent” are ruled out. Hilary Calvert’s six further amendments to clause 7 to amend the definition of “responsible Minister” as set out in Supplementary Order Paper 209 are out of order. Hilary Calvert’s amendments to clause 7 to amend the definitions of “road” “ship” and “structure” set out on Supplementary Order Paper 209 are out of order. 
The question was put that the amendment set out on Supplementary Order Paper 209 in the name of Hilary Calvert to clause 7 to insert a definition of “substantial interruption” be agreed to. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 5 
ACT New Zealand 5. 
Noes 115 
New Zealand National 57; New Zealand Labour 42; Green Party 9; Maori Party 4; United Future 1; Independents: Carter C Harawira. 
Amendment not agreed to. 
The result corrected after originally being announced as Ayes 47 Noes 73. 
CHRIS TREMAIN (Senior Whip—National) 
: 
 I raise a point of order Mr Chairperson. That vote cannot be right. If both National and— 
The CHAIRPERSON (Eric Roy) 
: Ayes 47 Noes 73—the amendment is not agreed to. 
CHRIS TREMAIN (Senior Whip—National) 
: 
 Yes. We are 57 they are 42. That has to be well over the numbers we are talking about. 
Hon DARREN HUGHES (Senior Whip—Labour) 
: 
 Labour has voted against the last two amendments. It voted 42 votes opposed. 
The CHAIRPERSON (Eric Roy) 
: So for the last two you voted against. Leave is sought to amend the record. Is there anyone opposed to that course of action? There is no one; we will do that. 
I also rule out of order Hilary Calvert’s amendments to clause 7 on Supplementary Order Paper 209 to “taonga tuturu” “territorial authority” “territorial sea” and “warden”. 
The question was put that the amendment set out on Supplementary Order Paper 207 in the name of the Hon Christopher Finlayson to omit clauses 8 and 9 be agreed to. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 62 
New Zealand National 57; Maori Party 4; United Future 1. 
Noes 58 
New Zealand Labour 42; Green Party 9; ACT New Zealand 5; Independents: Carter C Harawira. 
Amendment agreed to. 
The CHAIRPERSON (Eric Roy) 
: The Hon David Parker has a typescript amendment to omit clauses 8 and 9. That is now out of order as being the same in substance as the previous amendment. Metiria Turei’s amendment to omit clause 9 as set out on Supplementary Order Paper 206 is out of order for the same reason. 
The question was put that the amendment set out on Supplementary Order Paper 209 in the name of Hilary Calvert to omit clause 10 be agreed to. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 5 
ACT New Zealand 5. 
Noes 115 
New Zealand National 57; New Zealand Labour 42; Green Party 9; Maori Party 4; United Future 1; Independents: Carter C Harawira. 
Amendment not agreed to. 
The question was put that the amendment set out on Supplementary Order Paper 211 in the name of the Hon Christopher Finlayson to the proposed amendment to clause 7 set out on Supplementary Order Paper 207 in his name be agreed to. 
A party vote was called for on the question  
That the amendment to the amendment be agreed to. 
Ayes 62 
New Zealand National 57; Maori Party 4; United Future 1. 
Noes 58 
New Zealand Labour 42; Green Party 9; ACT New Zealand 5; Independents: Carter C Harawira. 
Amendment to the amendment agreed to. 
The CHAIRPERSON (Eric Roy) 
: We have the Minister’s remaining amendments as amended set out on Supplementary Order Paper 207 and Supplementary Order Paper 211. The question is— 
Hon David Parker 
: I raise a point of order Mr Chairperson. You might be able to correct me as to process here but it seems that in respect of the ACT Party’s amendments we had to take them clause by clause yet you are now proposing that we take all of these other ones which seem to include some individual amendments as one question. Is that in order? 
The CHAIRPERSON (Eric Roy) 
: Yes. That is the Minister’s prerogative. 
Hon David Parker 
: I raise a point of order Mr Chairperson. Can I have an assurance that we have had the Clerk of the House go through each of those amendments on the Supplementary Order Paper applying the same logic that was applied in respect of Hilary Calvert’s amendments and strike out those that are effectively inconsequential in terms of the change of meaning and therefore out of order on that same basis. When I read the Minister’s Supplementary Order Paper there are certainly some that would fit within that category. 
The CHAIRPERSON (Eric Roy) 
: Yes you have that assurance. 
Metiria Turei 
: I raise a point of order Mr Chairperson. Just to be clear is this a vote on all the Minister’s amendments to Part 1 and to Part 1 only? 
The CHAIRPERSON (Eric Roy) 
: Only to Part 1—the ones that have not been dealt with consequentially as we have moved through. 
The question was put that the remaining amendments to Part 1 as amended set out on Supplementary Order Papers 207 and 211 in the name of the Hon Christopher Finlayson be agreed to. 
A party vote was called for on the question  
That the amendments as amended be agreed to. 
Ayes 62 
New Zealand National 57; Maori Party 4; United Future 1. 
Noes 58 
New Zealand Labour 42; Green Party 9; ACT New Zealand 5; Independents: Carter C Harawira. 
Amendments as amended agreed to. 
A party vote was called for on the question  
That Part 1 as amended be agreed to. 
Ayes 62 
New Zealand National 57; Maori Party 4; United Future 1. 
Noes 59 
New Zealand Labour 42; Green Party 9; ACT New Zealand 5; Progressive 1; Independents: Carter C Harawira. 
Part 1 as amended agreed to. 
Part 2 Common marine and coastal area 
Hon CHRISTOPHER FINLAYSON (Attorney-General) 
: 
 Part 2 of the Marine and Coastal Area (Takutai Moana) Bill has three subparts. The first outlines the basic interests in the common marine and coastal area and this includes the important clause that provides for the special status of the common marine and coastal area as an area that cannot be sold. I do not intend to go through the way in which we reached the concept of a common marine and coastal area. 
Hon Darren Hughes 
: Why not? 
Hon CHRISTOPHER FINLAYSON 
: Because the Hon Peter Dunne I say to the senior Opposition whip gave an excellent second reading speech in which he explained how the concept of public domain had almost taken hold when Ms Clark needed to run to the New Zealand First Party for guidance and New Zealand First was adamant that there had to be absolute Crown ownership. That is the first subpart. 
Certainly the bill as introduced contains in this part provisions to repeal the 2004 Act and restore customary interests which were extinguished by it. It also contains provisions as to existing interests—for example resource consents. 
Subpart 2 outlines public rights and powers in the common marine and coastal area. It preserves the public right of access fishing rights and navigation rights—and I will say something about access in a minute. Subpart 3 provides a new regime for reclamations which is as a result of a great deal of consultation with organisations like the port companies. 
There are a couple of changes contained in the Government’s Supplementary Order Paper 207. As mentioned earlier it is proposed that clauses 14 and 15 which deal with the repeal of the 2004 Act and the restoration of customary interests be moved into Part 1. Clauses 16 and 16A change the status of roads so roads will no longer become part of the common marine and coastal area and will continue to be owned by their current owners. If an unformed road continues to be unformed for 15 years it will become part of the common marine and coast area. 
The Supplementary Order Paper also reframes clause 30 and I believe that that will better meet the policy intent that these functions held by the Minister of Conservation are residual only and it also moves these particular provisions to Part 4. The Supplementary Order Paper will also remove clause 31 which relates to notices regarding dangerous structures. The clause is no longer needed as the relevant agencies already have jurisdiction under existing legislation. 
I do want to say something about clause 27 because it has been the subject of lots of excited comment. It was the first stage of opposition to the bill for organisations like the Coastal Coalition and certainly questions have been asked in the House about it. Some of those questions could almost be regarded as offensive—questions about Maori wanting to block access to the foreshore and seabed which is a proposition that I find profoundly insulting. It is suggested that a Supplementary Order Paper will make it clear beyond peradventure that no one can charge. Indeed the explanatory note on Supplementary Order Paper 210 in the name of Hilary Calvert says her “for the avoidance of doubt” provision is based on a similar prohibition on charging contained in the existing Foreshore and Seabed Act. It seems that the opponents of this bill are like insatiable cormorants—we give them some guidance and we give them some help but it never satisfies them; they just want more and more. This Supplementary Order Paper reaches as it were the denouement because it is truly fantastical. 
But anyway I will say something about the existing regime in the 2004 Act because section 7 of that Act provides for certain rights of access. I particularly refer honourable members to section 7(2): “Every natural person has access rights in on over or across the public foreshore and seabed.” Those access rights can be limited for various reasons—for example use by port companies naval bases and places like that. In fact in section 7 there is no prohibition on charging; it is a statement of rights of access. Then one moves to section 40 which is said to be the non-charging section but one finds it relates only to the guardians of a foreshore and seabed reserve or an applicant group or a board not being entitled to charge or collect fees or other forms of payment. The point I am endeavouring to make is that the 2004 Act does not contain a general prohibition on charging and that to suggest otherwise is simply to misread the legislation. 
A number of submissions have been made some in good faith and some in bad faith about the scope of clause 27. As I have said all along one does not need to add the phrase “without charge” because a reading of the bill and in particular I refer to clauses 64 and 119 means that the cumulative effect of what we are dealing with here—a bundle of rights referred to in clause 64 when an applicant group succeeds in obtaining customary title—are just those rights and no more than that. But because some concerns were expressed by people—no doubt as I say some in good faith—we have added into clause 27 the phrase “without charge” to make that clear beyond any doubt whatsoever. 
But undeterred Ms Calvert has put forward a proposed amendment to avoid doubt; she wants to add in a subclause (5). I say to her that it does not even get to base one because there is no doubt whatsoever—there never was any doubt—and we are getting to an extreme stage where the member is proposing an amendment that can only be regarded as stating the obvious. I was trying to think whom she reminded me of the other day and then I came across it. Many years ago there was a very good programme called  
Fawlty Towers.  
One day when Sybil was in hospital for treatment of an ingrown toenail Basil suggested that she enter  
Mastermind 
 and that her topic could be the bleeding obvious. Really it is that kind of amendment that we have; it is a statement of the bleeding obvious. One finds that it is totally unnecessary when one looks at what the Supplementary Order Paper put forward by the Government provides and when a fair reading of the bill provides the combination of clauses 64 and 119. So I say to Ms Calvert that her proposed amendment is not as it were complicated by any vestige of merit. It is unmeritorious it is mischievous and quite frankly it is unpleasant. 
METIRIA TUREI (Co-Leader—Green) 
: 
 How typical it is of the Minister in the chair the Hon Christopher Finlayson to get as personal as that in this debate. I find it to be completely without dignity that he would speak about other members of the Committee like that. I disagree very strongly with Hilary Calvert and with much of the language that she has used today in this debate but I do not think there is any place for that kind of personal nasty attack. Not only is it undignified but it belittles the Minister to be engaged in that kind of behaviour in the Chamber over an issue that is as serious as the Marine and Coastal Area (Takutai Moana) Bill which there is no doubt that everyone has a very strong view about even if one disagrees with another member’s view. 
I will address Part 2 of the bill briefly. One of the issues is that in clause 11 a statement has come up which I think it is made later on in the bill as well. Clause 11(2) states: “Neither the Crown nor any other person owns or is capable of owning the common marine and coastal area”. I will repeat that: “Neither the Crown nor any other person owns or is capable of owning the common marine and coastal area”. That is a legal fallacy. That does not actually exist in New Zealand law. The process of colonisation was one whereby the two principles of imperium and dominion were brought to Aotearoa through colonisation by the British Crown imperium being the right to rule and dominion being the right of the Crown to have underlying ownership over all the land. Over time that right has been effectively passed on through various systems and constitutional niceties—and not quite such niceties—so that in effect it now belongs to the Government to exercise on behalf of the Crown as its ownership right. 
So when a law states that nobody owns the coastal and marine area that is not true; it is just factually incorrect. The ownership of Aotearoa through the colonisation process rests with the State and with the executive. Having that kind of rubbish in legislation is bad enough. That people are passing legislation that just does not tell the truth about the factual basis of landownership in this country is historical fallacy. But that also leads me to challenge the Maori Party. 
I ask that the Maori Party members be prepared to stand up to defend the statement they made earlier today that they are proud of this legislation and that this bill is a Maori Party bill. I ask them to say how they can argue that this bill is a Maori Party bill say they are proud of it and say they will vote for it when we have a legal fallacy here around ownership and when the whole basis of Maori issues around the foreshore and seabed is that there could still be areas of extant customary title as set out in the common law and that is ownership. That is ownership and that is what customary title tikanga title is about: it is about ownership. Now the tikanga way of describing and talking about the responsibilities of ownership is different and Maori have tried to get the message through to the Government to members and to the public that it is not as much about the right to do with the land as one chooses as it is about the responsibility to care for it for the future. The concepts of what ownership means might be quite different but it is hard to have to use the English language to describe these concepts when ownership is an issue. 
Maori have come to the Maori Affairs Committee to the panel and to select committees in years gone by to say they want their right to be restored to go to court to assert their customary title ownership in tikanga terms. If that is what Maori have said and if the premise on which the Maori Party was built was respect for that principle respect for that call by Maori to assert their customary title ownership in tikanga terms then how can the Maori Party members in any kind of conscience stand here to say they are proud of legislation that specifically strips Maori of that right? This bill says no person is capable of ownership of the customary marine area yet Maori have said over and over that they want to have the right to be able to test and to assert their customary title ownership in tikanga terms. The Maori Party members’ votes will determine whether this legislation proceeds and therefore whether the confiscation of this land and the extinguishment of that right will continue. I think that those members owe it to Maori who have supported them and whose call the Maori Party is here to respect to explain why they can now vote against the rights of Maori to assert their customary title ownership in tikanga terms and in the fullness of those tikanga terms. 
At the same time as we are debating this bill a hikoi is making its way through the country. A large number of Maori have made their way from the north. I understand that they are at Hato Petera College this evening and are making their way into Tamaki-makau-rau tomorrow. The premise of this hikoi and of the hikoi on which the establishment of the Maori Party was based—and Tariana Turia in previous years met the parent hikoi the mother hikoi of the present one if you like some years ago—is the same premise: that the foreshore and seabed should not be confiscated and that Maori rights should not be extinguished. “Not one more acre” is the call of this hikoi just as it was of the last hikoi. Those whanau who are making their way through the country to demonstrate their opposition to this bill deserve to be given an answer from their representatives in this Parliament. They deserve to be given an answer from those who have said in the past that they would stand up and fight for their right to have their rights recognised and to oppose the confiscation and extinguishment of those rights. Those people are entitled to an answer as to why the Maori Party is prepared to take those rights away. 
This issue is not easy. It is difficult particularly for Maori and for Maori MPs just as it was last time. This is a difficult debate and it is especially difficult to hear some of the very crass comments that we have heard in the debate tonight. There is no doubt about that. But our people deserve to get answers. Our people deserve to be told by their representatives here why they are voting for a confiscation and why the Maori Party members are voting to remove any capacity for the ownership that Maori have been asserting now since 2003 or before that through the Ngati Apa decision for many years now—for a decade or more. 
I ask the Maori Party to take a call and to answer the question— 
Hon Shane Jones 
: Good luck. 
METIRIA TUREI 
: Shane Jones is quite right. I am not holding out a lot of hope. I certainly will not be holding my breath as Hilary Calvert suggested we should do from 1840. I will not be holding my breath but I do think the Maori Party owes it to our people to give them an explanation. If it was genuinely proud of this legislation as Rahui Katene said it was it would stand up and defend its position and explain to our people who are marching through the country as we speak why they have to march at all. Why is the Maori Party supporting this legislation at this time when it knows and it has said publicly that this bill is bad? It has said this bill will not be effective and does not give justice to our people so why does the Maori Party support it? 
Hon Shane Jones 
: That’s why the rangatahi are changing their mind. 
METIRIA TUREI 
: It is also why our kuia and kaumatua are very disappointed in their political representation. 
We are getting down to the nub of this issue: that there is customary title which the courts have said could still exist in the foreshore and seabed that predates the colonisation of this country if you like that that title should be explored and that Maori who believe they may hold it are entitled to go to court to have their case heard. Yet the Maori Party is stripping them of that right. There is no doubt that this is very serious— 
Hon Shane Jones 
: The Labour Party? The National Party. 
METIRIA TUREI 
: The Maori Party is stripping that right from those hapu who came to us. It is personal to some extent as well. I sat with Tariana Turia on the foreshore and seabed select committee in 2004 and I remember us both weeping together over the harm that was being caused to our people. 
KELVIN DAVIS (Labour) 
: 
 Before I start I would like to acknowledge John Boscawen for his tenacity in his points of order earlier. I do not agree with his politics and where he is heading but I admire a new member a new Minister who stands up and is prepared to speak his mind regardless of how wrong it may be. 
I would like to carry on from what Metiria Turei said about neither the Crown nor any other person owning or being capable of owning the common marine and coastal area which is stated in clause 11. I bring up this point because as she said it is a fallacy that the Crown can say that nobody owns the common marine and coastal area yet the Government retains the final say in what happens on the seabed. The Government can still override what Maori want in terms of the common marine and coastal area. 
I want to raise an example—and there are members of my own caucus who disagree with my argument on this topic. There is a proposal for Crest Energy to build some turbines in the Kaipara Harbour for tidal power generation. There will be 200 of these turbines if the whole proposal goes through and each will be the size of a small apartment block. They will cover an area in the mouth of the Kaipara Harbour that is about 7 kilometres long and a couple of hundred metres wide so these electricity turbines will be plonked on a substantial area of seabed. 
Nobody is opposed to renewable energy generation. However the point is these turbines will create a massive footprint on the seabed. There will be no navigation rights over the top of these turbines obviously for safety reasons. So what is being created is a property right—if this proposal goes ahead—over a substantial area of the seabed. That is what the Maori Party has agreed to. It has agreed that nobody will own the seabed yet it agrees that the Government has the final say as to what can happen. The Maori Party is agreeing that the Government can create in effect a property right over a substantial area of the seabed in the Kaipara Harbour against the wishes of Te Uri o Hau the local hapu and against the wishes of Ngati Whatua. The Maori Party has agreed that it is OK for that to happen. So basically the tino rangatiratanga of that area of seabed is being gifted to the Government. 
I cannot believe that the Maori Party is agreeing to this. I cannot believe that the Maori Party is allowing the Government to take total control tino rangatiratanga of this area of seabed. Even if customary marine title to the Kaipara seabed is given to Ngati Whatua and Te Uri o Hau a process outlined in schedule 2A on Supplementary Order Paper 207 allows projects like this which would be an instance of significant national and regional infrastructure to be built. Crest Energy can bypass the wishes of Ngati Whatua and Te Uri o Hau and can go to the Minister for Land Information who at the end of the day has the final say and can decide that this project may go ahead. The Maori Party is legislating for tino rangatiratanga not to reside with the local hapu Te Uri o Hau or with Ngati Whatua but to reside with the Crown. That in my opinion goes against everything the Maori Party is meant to stand for. The Maori Party is going against its own values and its own principles by saying that the tino rangatiratanga of that particular part of the seabed is to rest with the Crown. 
That will not be the only example of a project that is— 
Hon DAVID PARKER (Labour) 
: 
 I begin by referring to clause 11 of the Marine and Coastal Area (Takutai Moana) Bill which is one of the issues that the Attorney-General Mr Finlayson referred to in his opening remarks on Part 2. He talked with some pride about the common marine and coastal area being accorded a special status which clause 11 achieves. In subclause (2) it states “Neither the Crown or any other person owns or is capable of owning the common marine and coastal area as in existence from time to time after the commencement of this Part.” This is really a discussion about words because what really determines what this means is the bundle of rights different people have in respect of that common marine and coastal area. If that does not change then whether it is called a Crown area or a space that is not capable of being owned by anyone does not matter—they are just words. 
In reality the Crown still regulates what occurs in respect of this area. So if there are environmental effects then those have to be assessed in terms of the legislation that controls development in those areas. In reality this legislation as does the current legislation protects people’s rights of free access over those areas so that does not change as a consequence of this legislation. All people have fishing rights in respect of these common marine and coastal areas so that does not change. All people have navigation rights so that does not change. No people have private rights to mine for oil and gas because those were nationalised back in 1937 so that does not change. 
As my colleague Shane Jones said in an earlier submission to the Committee there are very little changes as a consequence of this change of terminology from the area being vested in the Crown as the putative owner effectively holding it on behalf of the people of New Zealand subject to the different rights that different groups of people have. This change from the area being Crown land to being held by the Crown on behalf of New Zealand is subject to different rights in respect of different groups including the rights of Maori to have their customary interest recognised. This change from the Crown holding it to no one owning it is an illusory change—it makes no difference. 
Hon Member 
: Fiction. 
Hon DAVID PARKER 
: It is a legal fiction. It makes no difference in practice so it should be seen for that. It is not objectionable except to the extent that it is a pretence of a change when it is not a change and that is where our objection arises to this. For this to be accepted by the Maori Party as settling its grievance seems to me to be ridiculous because this is but a fiction. So I invite the Minister in the chair the Hon Chris Finlayson to acknowledge that really what one calls this area is less relevant than the bundle of rights that everyone has in respect of the area and to acknowledge that the change from this being held in the Crown’s name on behalf of New Zealanders subject to all of the different bundles of rights and responsibilities that I have earlier described makes no difference in practice. 
I want to raise another issue which is the access clause clause 27 and the clause that is being amended by the Minister. I note again that there are a large number of amendments in the Minister’s Supplementary Order Paper 207 that infringe the warning given by the New Zealand Law Society that these things should have been made public so that there was an opportunity for public scrutiny sufficiently in advance so people could raise any concerns they had. That would normally have been done following the Maori Affairs Committee report incorporating the amendments recommended by the Ministry of Justice in its 500-page departmental report but of course because that process was so improperly truncated by Government members we did not have the ability to do that. We did not have the ability to have that advice from the select committee to this House at Parliament or to the Committee of the whole House and we are reliant therefore on the Supplementary Order Paper which raises these new issues. 
In respect of the access clause I prefer the new wording “without charge” of the Minister to that proposed by Hilary Calvert in Supplementary Order Paper 210 for a number of reasons. Firstly I think it is easier to read but secondly I think that Hilary Calvert’s amendment goes too far. I would like to go into that in some detail. Hilary Calvert’s amendment proposes to add clause 27(5): “To avoid doubt neither a customary marine title group nor an applicant group is entitled to charge or collect fees or other form of payment from any person for body for the use”—I emphasise the word “use”—“or occupation of any part of the common marine and coastal area.” The Minister’s amendment makes it clear that one cannot be charged for access but Hilary Calvert’s amendment goes a lot further and says that one cannot charge for any use. That of course makes a nonsense of the ACT Party’s argument that if there are property rights to be recognised then those property rights are for the holder of those rights to use. If someone else were to come along and use the right that was the subject of a customary marine title without payment of charge to the person whose right that was it would make a mockery of the whole thing. 
I would like the ACT Party to take a call and explain how that would be right. I understand that its property rights logic is being applied to its opposition to the bill but it says that people who have an extant customary interest in the foreshore and seabed should have it recognised and should be able to utilise it for their personal benefit as anyone else can utilise their property right. I find it absolutely irreconcilable that the ACT Party could take that position and then say that anyone can use it for free. I raise the issue of a right to extract a mineral that has not been nationalised. For example there is some suggestion that there are areas of the foreshore and seabed where there may be customary title interests under seabed minerals be it ironsands or other minerals. By saying that I am not saying that the Taranaki iwi are correct to say that they have extant rights but somewhere in New Zealand there will be extant rights to minerals and it would be a nonsense if someone else could come along and have the right to use that part of the common marine and coastal area for his or her private benefit to the exclusion of the person who owned it. I think that the proposed subclause (5) goes too far on the part of the ACT Party. I agree with the Minister’s amendment to clause 27. I think that is fair to settle down concerns be they as he put it with good intent or mala fides but I do not agree with the amendment proposed in Supplementary Order Paper 210 by the ACT Party member Hilary Calvert for the reason that I have outlined. 
So in respect of that issue Labour will be voting against the ACT Party amendment. If we had the opportunity to vote separately in respect of that particular amendment from the Minister we would vote for it. But it is probably going to be put as is the Minister’s right along with all of the Minister’s other amendments many of which we disagree with. So we will be forced to vote against that as a part of a wider motion. But I note for the record that we approve of the change to that particular wording in that clause relating to access that is promoted by the Minister but oppose the change proposed by Hilary Calvert. 
There are many many other changes made to Part 2. The first of them is referred to in the Supplementary Order Paper 207 and records that in clause 11(2) we are omitting the word “Part” and changing it to “Act”. That changes the meaning so that the provision comes into effect from the commencement of this Act rather than from the commencement of this Part and that seems OK as do the changes to subclauses (3) and (4). In terms of subclause (5) I am not sure what the effect of this is. There is a deletion of clause 11(5) and a substitution of very similar wording. One of the difficulties we have when a Supplementary Order Paper that runs to 73 pages is produced as close to the next readings of this bill as this one has been is that it is difficult for us to get our heads around each and every one of these little changes. So I ask the Minister to explain what the difference is in effect for clause 11(5) which seems to be substantially reproduced in the Supplementary Order Paper but seems to differ in the addition of a paragraph (f) which is not in the original version of the bill that came to the select committee. 
Hon JOHN BOSCAWEN (Deputy Leader—ACT) 
: 
 The ACT Party has a number of amendments to Part 2 and a number of issues to raise. I start this first call by saying that I hope we have the opportunity to raise those points during the debate this evening and as it continues into tomorrow on this part. I will talk specifically about two clauses: clause 14 which runs to 1½ lines and clause 17. 
Before I address those two clauses in this call on Part 2 I need to quickly respond to a number of points. This debate on Part 2 started with an introduction by the Minister in the chair the Attorney-General. The Hon Chris Finlayson was at pains to point out that New Zealanders would have access to the common marine and coastal area and that it was never an issue and had never been an issue but notwithstanding that he was prepared to succumb if you like to the urgings and the pressure of the ACT Party to amend clause 27 so that access to the common marine and coastal area would be without charge. In making those comments Mr Finlayson took the opportunity to take aim at my colleague Hilary Calvert. It was a very personal direct and hurtful aim. I am very sad that the Minister felt he had to stoop to those levels and I acknowledge the comments of Metiria Turei who rose to her feet immediately after his remarks were made. 
I will also comment very quickly on the point that Kelvin Davis made during his speech in this debate. It was interesting that he was subject to interjections from Mr Quinn I think it was who taunted him by asking why he did not make his comments during the debate in the Maori Affairs Committee. Well I suspect that Mr Davis would have liked to make those comments in the select committee but this Parliament is ignoring the fact that the Government used its majority on the Maori Affairs Committee to ram this bill through. 
We have a report from the Maori Affairs Committee. The official report of the committee is simply one page and attached to that is— 
The CHAIRPERSON (Lindsay Tisch) 
: The cross-interjections are too loud. Calm it down. 
Hon JOHN BOSCAWEN 
: We then have the Labour Party Green Party and ACT Party minority reports followed by 40 pages of recommendations from the officials. Normally the select committee would expect to see those recommendations incorporated into the drafting an amended bill would come back before the select committee and members of the select committee would consider it and look at the various amendments and at what was best and what was not best. The reason this debate will go on for so long is that the Government used its majority on the select committee to shut down that debate and shut down people like Mr Davis who was a member of that select committee. We now have to debate those things in the Committee of the whole House. 
I now move to clause 14 of the Marine and Coastal Area (Takutai Moana) Bill because it is the essence of this bill. Clause 14 is in Part 2 which is the part we are debating right now. People watching this debate on television or listening on the radio might ask what clause 14 says. Very simply it states: “The Foreshore and Seabed Act 2004 … is repealed.” The Foreshore and Seabed Act is repealed and that is why we are here tonight. 
I will repeat a claim I made earlier this afternoon which was that the ACT Party has been entirely consistent on this issue the entire way. We are talking about property rights access to justice and access to the courts and on those things we absolutely support the Maori Party. We do not believe that this bill provides those things and we do not believe this bill is the right response but we absolutely support the Maori Party on the repeal of the Foreshore and Seabed Act 2004 and we absolutely stand up for the right of iwi and hapu to go to court. The ACT Party and I suspect the National Opposition at the time would have been the only members in Parliament who supported Tariana Turia when she first took her lone stand. I make it absolutely clear that our position on this bill is that we want to see that Act repealed. 
Having said that it is important to understand what the decision in the Ngati Apa case was. The decision was that iwi have the right to go to court. It stated that there might be unextinguished customary rights out there and that iwi have the right to go to court. I cannot emphasise enough that the Court of Appeal did not state that there were unextinguished customary rights or that there was customary title; it simply stated that there might be and that iwi and hapu had the right to go to court. 
One of the reasons we object so strongly to this bill and will fight against it so hard is that we believe it makes things so much worse. The Attorney-General constantly calls out “codification codification”. He says that we have to put rules in legislation so that judges will know what to do. In fact he is making it much harder for judges. If the Government had simply repealed the Foreshore and Seabed Act 2004 and that was all it had done then ACT could have supported that. Alternatively as Mr Parker has suggested if the Act had been repealed provision had been made for claims to be taken to the High Court and access to the common marine and coastal area had been guaranteed then the ACT Party could have also supported that. But the proposal is to repeal the Act and to put in place a series of tests for the granting of customary title. Those tests go beyond anything that has been provided for in any Commonwealth court in the world. There have been no successful cases in the United Kingdom Canada or Australia. It might interest members to know that the only claim that was brought for customary title or ownership of the seabed in Australia was lost. 
National has the gall to put it out there that this bill builds on common law precedent and decisions that have already been made in other countries around the world. Let me repeat that there has been no legal decision that passes customary title—or ownership because we are talking about something akin to ownership—to a customary title applicant. The reason the ACT Party opposes this bill so strongly is that the Government is assuming the courts will go and grant customary title over large areas of New Zealand’s coast. It is putting in place tests that in the eyes of the Government will reduce what is granted. In fact the effect will be to substantially increase the areas that may be transferred into customary title and when I say “transferred into customary title” I mean that the benefit will be transferred from all New Zealanders to a select iwi. 
That brings me to clause 17 “Continued Crown ownership of minerals”. This clause provides that notwithstanding the case where an applicant group might gain customary title all nationalised resources which means petroleum gold silver and uranium remain the property of the Crown. There are a couple of issues related to that. The first issue is the question of what does not—what has not been nationalised—and clearly one of New Zealand’s major resources that has not been nationalised is iron sands. The Ministry of Economic Development has estimated that this country has iron sands worth some $600 billion to $1000 billion—that is $1 trillion—off its coast. A large part of that resource lies off the coast of Taranaki and the Waikato. We might say that it belonged to iwi in 1840 but one of the fallacies of this bill is that the common marine and coastal area— 
Hon SHANE JONES (Labour) 
: 
 Kia ora ano tatou. I will focus on Part 2 of the Marine and Coastal Area (Takutai Moana) Bill as members would expect and I assure you Mr Chairperson that I will do so in a manner that does not offend either your rulings or those of the person who was in the seat you currently occupy until very recently. 
I want to take us initially to clause 26 in Part 2. There is an interesting irony here. We are being invited to contemplate—and I find it difficult to actually follow how in an administrative sense it is to take place—that by dint of the passage of this legislation we will have a situation where Crown and sub-national bodies of Government will have their assets with certain exceptions regarded as part of the great public space etc but there will be an opportunity for local government to seek redress. I think this is one of the reasons why a number of hapu and tangata whenua have been stirred up. The Attorney-General may say they are ill-informed although I would say they see a double standard here. A number of them will point out to us the original way in which local government and other public bodies acquired either the land for the roads or other interests in land adjoining the seabed and foreshore—the takutai moana I should say—and say that those original grievances have not been satisfactorily dealt with. They are going to complain—as they already have done to us—that there is a very circuitous process that they are expected to go through but there seems to be a very straightforward process for the local body organisations to go through. It is probably a case where a well-intentioned intervention has turned into an issue as to whether there is a double standard here.  
I note that the Minister of Conservation or his or her delegate—I think that is the term being used—will presumably speak with the authority of the Crown. But clause 26(4) states—and if I am not mistaken this provision has carried over from Labour’s legislation; the Attorney-General might care to confirm that—that “No court has jurisdiction to hear any claim in respect of any loss suffered by a local authority as a result of the operation of section 18.” If that part was carried over from Labour’s bill then it could be one of the few redeeming features of the current bill but that is another matter. As the Minister goes forward issues of this nature will have to be carefully explained to Maori applicants because if there is a case where there has been a great deal of pain and confusion it is in the area of local government.  
I just want to go back and direct our attention to clause 11. My colleague David Parker has pointed out that yes the nomenclature is different but when we unpick the interests that are at stake in the new takiwa marea—that is my brief attempt at translating “public space”—we see that the Crown has exclusive authority and is No. 1 in the allocation of entitlement to occupy space. The Crown will have exclusive authority to set conditions to manage the effects of interaction activity use etc. in the space. The Crown will have enormous if not exclusive authority in enjoying the ability to exclude. I accept that the Minister may say that once a title or a customary interest has been recognised there will be a certain level of ability within the hapu or tangata whenua group to exercise enough authority to ensure that they can exclude others from having an injurious effect on the interests that have been restored to them. In my view it makes a nonsense to suggest that what is being replaced here in terms of Crown title with this broad vacant kind of conception of the space championed by Mr Dunne—appropriately so—is somehow both novel and something significantly different from the Crown. I accept that it does overcome one issue which is that in the politics of polarisation the Crown is often seen as being the wrong side of the equation. I invite the Minister to take a call during the course of the evening or tomorrow or more than likely early next week and correct either me or David Parker on whether we are being a little too uncharitable or are misunderstanding the actual impact and effect of the law in relation to the way we are describing it.  
I go on to point out that clause 30 states: “The Minister of Conservation is the manager of the common marine and coastal area and exercises and performs in respect of the common marine and coastal area all those management and administrative powers duties and functions provided for by this Act or any other enactment…”. That only goes to show that nothing in this bill significantly changes in terms of the Crown having that exclusive level of authority. It is politics but at one level it is a symbolic fiction that has been promoted by our colleagues in the Maori Party. They are entitled to do that. It really depends on how well that message is picked up by our people because the Maori Party has assumed that our people do not have the sophistication to see that they are being hoodwinked. Therein lies one of the sad things about this bill. The Maori Party knows deep down that Hone Harawira’s concerns are largely accurate but it has taken a punt that iwi and hapu are tired of the whole affair or it has occurred that they will not get access to advice or that they will not put in the effort to uncover the fact that this bill is really an exercise in chicanery. This does not deliver the promise. This does not deliver the things that the Maori Party put in its manifesto but unfortunately for Labour we are incapable of stopping this legislation other than the fact we will remind Maori people how it has not been possible for them to enjoy the success they thought they were going to get through the Maori Party. 
I direct the Minister’s attention to clause 39 “Determination of application by Minister”. It is kind of extraordinary—and I should imagine there are some strong commercial applications here—but we are putting Maori applicants through an inordinately circuitous process in order to prove their interests. This clause and a clause slightly earlier deal with the ability of developers to acquire a level of interest in the land that is not being extended to hapu and iwi not being extended to tangata whenua. Indeed I direct our attention to clause 39(1)(a) which states: “whether the applicant is to be granted an interest in the reclaimed land and if so whether that interest should be a freehold interest…”. That is not what Labour agreed to and I am quite sure the Minister will agree. The first time round that is not what Labour agreed to. We preferred a leasehold interest. It could be said that a very long-term lease is akin to a freehold interest anyhow but it is rather bizarre that the legislation which is being promoted by Tariana Turia and her team as having actually expanded the prospects of Maori securing greater customary interests will actually provide developers and the private sector with something akin to inalienable title. But the Maori Party is unwilling through this legislation to extend it to its own supporters or to iwi Maori. 
It is just a small example of how No. 1 the Maori Party has been inattentive. They have surrendered a great deal of control and stewardship—dare I say the sovereignty of the pen—to the Attorney-General. In many respects that is necessary because he is the most senior legal official in terms of Cabinet’s make-up but they should not for a moment think that the irony will not escape Maori voters—dare I say Maori applicants—that somehow or other they have to go uphill down dale across the takutai moana through a very circuitous range of steps and at the same time this legislation crazily enough makes it arguably easier for large-scale commercial interests to secure a greater level of ownership of reclaimed land. The Minister may say that as the land is being reclaimed someone else had already lost out prior to that because it was presumably if not vacant dormant space. 
Hon PAREKURA HOROMIA (Labour—Ikaroa-Rawhiti) 
: 
 I will continue on the definition and the special status of the common marine and coastal area. The definition sounds like general gobbledygook in relation to the notion of the Minister in the chair the Hon Chris Finlayson that this is something brand new and that it is safe. It is not too different from how the Foreshore and Seabed Act 2004 defined the area. I think what is more important is that we have now subjected the nation to this notion that the common ground is there and the “commons” as defined by the British was something that was clearly owned by the Crown. At the end of the day that has been twisted to suggest that nobody owns the common ground: the Maoris do not own it the Crown does not own it; it just sits up there esoterically and there is no suggestion whatsoever of who should make decisions on it. But at the end of the day it comes back to the Crown to define it and to ensure that it is there. 
I come to how the Maori Party has suggested that there are limited gains in this bill. The reality is that this bill will not fix the problem. The Maori Party has said that this bill does not settle the issue for it but at the same time it is trying to claim a great victory. So it would be really interesting to understand where the victory is when really it is just a quick shuffle of the pack. It is like the magician who says: “Now I have the white glove” and the next minute “Now I have”— 
Hon Shane Jones 
: The white rabbit. 
Hon PAREKURA HOROMIA 
:—“pulled the white rabbit out of the hat.” 
Before this bill received even its first reading the acting co-leader of the Maori Party Te Ururoa Flavell publicly stated that the Maori Party would certainly look at it again and there would be another time for his people to come back and have another go at it in the future. But the Minister has been quite explicit about the finality that he sees in relation to this bill. So those are challenging questions and I ask the Minister to comment on them. If it were not for the symbolic value of the repeal and the desire to address the Crown ownership aspect of the Act then an amendment could have been an appropriate solution. 
Earlier in the day I commended the Minister for the sequential way the bill listed “whanau” who generally go to gather and ruku pupu and get the delicacies of the sea; then “hapu” who govern and continue to entertain and ensure that those mana tuku iho rights are covered; and then “iwi” who generally oversee and keep in mind what is important for them and of course the legislation and the Government. So I was fascinated to see in the Minister’s Supplementary Order Paper that he had adeptly moved things around and caused that sequential order to be reversed. Now we have “iwi hapu and whanau.” I ask the Minister why he did that for what reason what relevance it has in respect of the common marine and coastal area and what relationship it takes in respect of the functions of mana tuku iho. Mana tuku iho is quite explicit. It is that practice that being and that relevance that has been succeeded through the generations by the whanau the hapu and the iwi to supervise. I ask whether the reversal of the sequential order is some code that signifies this Government moving anything that is relevant to Maori up the command channel so it can have its negotiation point being between itself and just iwi never mind whanau and hapu. 
In June Hone Harawira said the proposal represented pandering to rednecks and I have to suggest that to my mind some of the Coastal Coalition’s stuff is just that. Harawira announced he would not be voting for the legislation and left the Maori Party because of it. That is all the theatrics we have seen over the last few days. 
JONATHAN YOUNG (National—New Plymouth) 
: 
 I move  
That the question be now put 
. 
DAVID SHEARER (Labour—Mt Albert) 
: 
 I will speak on two clauses in Part 2: clause 11 which a couple of my colleagues have already spoken to and then clause 14. Part 2 deals with the common marine and coastal area and clause 11—for those people who perhaps have just joined us—looks at the special status of the common marine and coastal area. I point to subclause (2) which is basically the crux of this part. It states that “Neither the Crown nor any other person owns or is capable of owning the common marine and coastal area as in existence from time to time from the commencement of this Part.” That is an extraordinary clause in this legislation. I think it confuses pretty much all of New Zealand and it certainly confused the many submitters who spoke on the Marine and Coastal Area (Takutai Moana) Bill. The clause is some sort of geographic twilight zone designed for a political purpose and not really designed both to be durable and to give satisfaction to all sides in trying to understand and come to terms with the property rights inherent in this bill. 
If we look at Part 2 for example we know that many of the submitters felt that this area of land this no-ownership land should have actually stayed in the keeping of the Crown. As my colleague David Parker said in his speech in many ways when we look at the interests the rights the obligations and the authority over this no man’s land we see that it is the Crown that holds all those rights—and I will go into some of those in a minute. Therefore the provision gives the pretence and the illusion that we have something that is quite different and something that is workable when in fact we have something that I do not think has ever existed in law before. As I say it quite patently will not be durable in the longer term. 
Many submitters said for example that the common heritage of New Zealanders should be kept in Crown ownership for the benefit of everybody and in many ways we see that that is exactly what this legislation does when we look at the rights and responsibilities that the Crown will exercise over this particular area of land. On the other hand a number of iwi and other submitters did not support the provision because they felt that the non-ownership regime was just symbolic. It was not actually real at all; it was simply symbolic. I would say that that is exactly the case; all it does is introduce a vagary into our legislation that was not there before. 
There are other reasons for not supporting this common marine and coastal area. It applies only to Maori where Maori have an interest as opposed to any other private title so in a sense it discriminates against Maori and what Maori are looking for. The proposal is also flawed because there are three exceptions to the no-ownership regime and this is what I was talking about in terms of its illusory nature: the exclusion of pre-existing freehold titles the ability of the Crown to deem or declare land in the common marine coastal area to have status under various conservation statutes—in other words conservation statutes will continue—and the administration of those statutes by the Minister of Conservation. Some submitters also argued that the bill breached the guarantees of exclusive possession under the Treaty of Waitangi which is another larger and bigger issue that I do not want to go into. 
One curious anomaly that arises because of this no-man’s land was brought up by the Dunedin City Council. The council basically said that it was unclear whether the common marine coastal area would in fact be rateable under the Local Government (Rating) Act 2002. That is quite an interesting concept because if that land were under Crown ownership of course the Crown would not be liable for rates. But actually this area is not in Crown ownership. The Crown effectively has an interest as I said before and the way it controls it is likened to an ownership right but it certainly will not be the owner. It is possible for the Crown to be considered liable for rates because section 10 of the Local Government (Rating) Act provides that “a ratepayer is the person who is named … in the rating information database and the district valuation roll.” In other words the Crown could be in fact liable for rates on land that is actually under no ownership. This provision as I say was a piece of legislative creativity that was set down to try to resolve a political matter. It did not try to address the real issue that was before us. 
I will go on to clause 14 which gets to some of the heart of what this bill seeks to do. As the Minister said clause 14 repeals the 2004 Foreshore and Seabed Act. What is interesting about this is the regulatory impact statement of May last year. It stated: “If it was not for the symbolic value of repeal and a desire to address the Crown ownership aspect of the Act then amendment could be an appropriate solution …”. In other words we could have amended the 2004 Act quite easily to give real impact and restore many of the issues that people have been objecting to. That would not have given the political outcome that the Government desired. It certainly was not the political outcome that the Maori Party desired. We now have an enormous bill with a 75-page Supplementary Order Paper that is being rushed through Parliament without the ability of the Maori Affairs Committee to give it really good solid consideration and without our having draft legislation to work from and to work studiously through. We now have a situation with legislation that is extraordinarily divisive and that will not be durable; the Prime Minister claimed that durability was his main goal in putting through this legislation. 
Moreover this legislation really underscores just how limited the gains have been for the Maori Party. What exactly has the Maori Party gained from this bill? Its members could have changed the 2004 Act sufficiently to give the impact and the outcome they desired. The reality is that this bill will not fix the problem. The Maori Party has said that the bill does not settle the issue for its members. The party has said that this is only the starting point. In many ways Hone Harawira’s position in this is the most honest; he has said: “I don’t agree with this.” 
Progress reported. 
Report adopted.