Fairbrother Russell: Foreshore and Seabed Bill — Second Reading Instruction to Committee In Committee 
Fairbrother Russell: Foreshore and Seabed Bill — Second Reading Instruction to Committee In Committee 
[Volume:621;Page:16969] 
RUSSELL FAIRBROTHER (Labour—Napier) 
: 
 There is no surprise in new clause 2A for those who understand the principles on which the bill comes about. There is no surprise in it for those who have read any part of the Ngati Apa Court of Appeal decision. There is no surprise in it for those who have read anything about Mabo or the international law on aboriginal rights. There is no surprise in it for anybody who has read the Treaty of Waitangi. There is no surprise in it for anybody who understands the common law principles on which the House is built. The only surprise in clause 2A is that those who use the term racist to describe the legislation have that word in the forefront of their imagination.  
The bill will “preserve the public foreshore and seabed in perpetuity as the common heritage of all New Zealanders” and that is the position that has prevailed in New Zealand for 160 years and that has been assumed by everybody to be the actuality. The Court of Appeal pointed out that riding upon that also as a burden on the Crown’s radical title is an obligation by the Crown to recognise the aboriginal title that the common law recognised whereby indigenous people had rights until they were clearly taken away by statute.  
 New clause 2A does precisely that. The object is to preserve the public foreshore and seabed in perpetuity as the common heritage of all New Zealanders but it includes the burden that has always been on the Crown for the common law right of aboriginal title. To describe that as racist legislation is to describe a skateboard as a motorcycle. The House deals with the facts and the Opposition appears to be trivialising the matter because it is not prepared to recognise the intelligence and principled nature of this bill. The clause includes the protection of the association of whanau hapu and iwi with areas of the public foreshore and seabed. That simply means that hapu whanau and iwi who have customary relationships that have continued since the assumption of sovereignty in 1840 can be recognised and will be recognised under this bill. There is nothing new about that nothing radical about that and nothing racist about that. But of course one cannot read clause 2A in isolation. 
Hon Richard Prebble 
: Why not? 
RUSSELL FAIRBROTHER 
: The purposes clause elaborates on that. It is very convenient for Mr Prebble not to have read as far as clause 3 “Purposes”. The bill has been around only since July! It may not be an illustrated version— 
Hon Dr Nick Smith 
: How long has clause 3 been around? 
RUSSELL FAIRBROTHER 
: About 140 years if one reads the common law and reads about Ngati Apa. It has been here for a long long time; since the signing of the treaty in fact. If one bothered to read the treaty and recognised that it was bringing into this country the common law of England then one would not be asking that question. One would not be thinking in terms of “racist”. One would be saying that clause 2A is self-evident and not even worthy of debate because it is a simple fact on which this country is built a simple fact on which this Parliament is run and a simple fact that all people in this country be they Maori Pakeha or more recent immigrants are prepared to concede when one talks to them out in the street. If the member interviews his mirror he may see a different picture. 
Clause 3 vests the full legal and beneficial ownership of the public foreshore and seabed in the Crown. That is the clause that the Court of Appeal required to be stated clearly so that the assumption of sovereignty and the Acts of this Parliament could express that principle. Then it gives rise to the burden which is then dealt with in paragraphs (b) (c) and (d) of clause 3. It follows as night follows day that if we recognise that this country is founded on the common law—the treaty recognises those common law principles and the right of Parliament to make laws arising therefrom—then any objection one can take to clause 2A is illusory and brings into intellectual argument what Richard Loe brought to forward play in the All Blacks. This part of the bill really sets the parameters for the rest of the understanding. We will have an interesting debate over the next few hours if clause 2A causes as much difficulty to those who consider themselves worthy to take part in this debate.  
We move on to clause 4 “Interpretation” but nobody from the Opposition has bothered to mention it. Interpretations are fine— 
Gerry Brownlee 
: It’s early days yet! 
RUSSELL FAIRBROTHER 
: It has been around since July. Mr Brownlee should have gone to the Fisheries and Other Sea-related Legislation Committee and would have heard the submissions on the clause. 
Simon Power 
: I raise a point of order Madam Chairperson. The Standing Orders and  
Speakers’ Rulings 
 state that members should not refer to anyone’s absence from the House or a select committee. Mr Fairbrother made a direct reference and you did not pull him up.  
RUSSELL FAIRBROTHER 
: I was saying what he would have heard in the select committee. Whether he was there I do not know—[ 
Interruption 
] 
The CHAIRPERSON (Ann Hartley) 
: I give Mr Power one warning. When I am on my feet making a ruling I do not expect comment. I was about to rule in his favour. He is right; the same rules apply to the select committee and the House. I give all members another warning: when I am ruling on a point of order or when a member is speaking to a point of order there will be silence.