Shirley Ken: Foreshore and Seabed Bill — In Committee Procedure 
Shirley Ken: Foreshore and Seabed Bill — In Committee Procedure 
[Volume:621;Page:17168] 
Hon KEN SHIRLEY (ACT) 
: 
 That was a very interesting speech from the Minister of Maori Affairs. I am very pleased that he is proud of what he sees as his achievements. That is important in Parliament. We as a nation want our Minister of Maori Affairs to do well but he cannot be the judge of the outcome. The people in our democracy will judge that outcome. His people will weigh up the merits of what they think he has delivered on the one hand and what he has cost them on the other hand. When every iwi that came to the Fisheries and Other Sea-related Legislation Committee gave a very clear position of what they expected when hui after hui around the country—I was at the first one the Hauraki declaration and the Minister was there too—gave a very clear message he did not listen. He and most of the Maori Labour caucus members did not listen. Their people will judge them for that. Their constituents will judge them for that. That is the great advantage of our open democracy. It is no good members coming here proclaiming their achievements beating their chests and saying how great they are. It is the people who will make that judgment. I believe they will judge the Minister of Maori Affairs very harshly because he has certainly been found wanting. 
 The comment has been made in this debate that the Government was between a rock and a hard place. Those members are trying to say that they had no choice. That is simply not so. The Government had numerous alternative options it could have proceeded with that would have delivered a far more harmonious outcome for this country. Let us review some of those options. Firstly if the Government was not happy with the Court of Appeal judgment it could have appealed. It was a very clear judgment that said in terms of Te Ture Whenua Maori Act which was passed by the National Government in 1993 the right for the Maori Land Court with extended jurisdiction to issue title over the foreshore and seabed to Maori applicants did exist—possibly in rare and remote instances. So it was not as if there was a great big threat. The judgment said that it may exist based on customary rights and customary title.  
What the Government could have done if it believed in due process—and there were two options actually with due process—was appeal that decision to the Privy Council. Did it? No it did not. Why? Because the Government was so determined to do away with the Privy Council—there was a lot of rhetoric about doing away with the Privy Council—it could not bear the shame and embarrassment of taking a case to the Privy Council. So it did not pursue that option. The Government claims that it was surprised by the Court of Appeal decision. That claim does not stand up to scrutiny either. Judge HetaHingston had made his decision on the Marlborough case—the NgatiApa case—some 5 or 6 years earlier. It had been running through all the court processes in the High Court and the Court of Appeal and the Government knew it was coming. Was it so arrogant that it just assumed it would win even though the initial decision clearly said that there was serious doubt? Yes the Government was that arrogant and when it received that decision what did it do? It just cancelled due process before our courts. That is a very serious issue. The Government did not even take it to the Privy Council. Perhaps it should at least have taken that step but it did not do that.  
So the Government could have taken the case to the Privy Council. Alternatively it could have just said: “Yes let’s look at this. What sorts of situations are we talking about where property rights might exist on the foreshore and seabed based on customary title?”. Those situations would be rare and remote. If the Government wanted to acknowledge that that was the due process but in the public good then chose to expropriate that that is always a Government’s right. Governments expropriate private property all the time and they always have. We have a Public Works Act mostly for good reason—not always but mostly—but of course the Government has to pay compensation. That would have been a due process. If the Government had gone through the courts and found that yes indeed based on customary title a very few clear Maori titles did exist the Government could have stumped up.