Turei Metiria: Questions for Oral Answer — Questions to Ministers 
Turei Metiria: Questions for Oral Answer — Questions to Ministers 
[Volume:666;Page:13837] 
4. 
METIRIA TUREI (Co-Leader—Green) 
 to the  
Attorney-General 
: Does he stand by his statement that the Marine and Coastal Area (Takutai Moana) Bill “treats all New Zealanders including Maori without discrimination”? 
Hon CHRISTOPHER FINLAYSON (Attorney-General) 
: 
 Yes. 
Metiria Turei 
: Does he agree with the then Acting Attorney-General that this bill creates discrimination on the basis of race because Maori customary title is weakened by a range of conditions but freehold title is not? 
Hon CHRISTOPHER FINLAYSON 
: I acknowledge the Acting Attorney-General’s report. He said that such limitations as existed on customary title in comparison with other forms of title were reasonable and he referred to issues relating to access and alienability which are the very points that I have been discussing with iwi and hapu around the country. Iwi and hapu do not want customary title to be alienated and they accept the need for public access. 
Metiria Turei 
: How is treating title differently on the basis of race not discrimination on the basis of race? 
Hon CHRISTOPHER FINLAYSON 
: Customary title is different from freehold title but the fact that it is different does not mean there is discrimination. It is a very valuable form of statutory title which has been developed. As the member would know in the Ngati Apa case the Court of Appeal held that the scope of customary title could range from what it called usufructuary rights to something approaching fee simple. We have looked at the incidence of ownership and we have brought together various incidents in this new form of customary title. That is not discriminatory and it reflects what iwi and hapu have been asking for. 
Metiria Turei 
: Does he think it is fair that Maori customary rights can be overruled by mining concessions but the 12500 private titles in the foreshore and seabed cannot? 
Hon CHRISTOPHER FINLAYSON 
: With mining interests we are trying to deal with transitional arrangements as we transition from a form of Crown absolute ownership to a no-ownership regime and one has to have transitional arrangements in those circumstances. As to the 12500 private titles I remind the member of what I said yesterday which was that two wrongs do not make a right and that removing the rights of landowners including Maori and Pakeha who have freehold title simply creates another injustice. 
Metiria Turei 
: Will there be any restrictions on those 12500 private titles in the foreshore and seabed being sold into foreign ownership? 
Hon CHRISTOPHER FINLAYSON 
: There will be restrictions so that if for example there is a proposal to sell a farm then presumably that will have to go through the approval processes and appropriate channels. What we are dealing with is the proposition that there will be no new freehold title in the area we are talking about. 
David Garrett 
: Would it be an offence for iwi holders of customary title to charge or attempt to charge for access to the beach; if so which specific clause in the bill would that offend against or does he not know? 
Hon CHRISTOPHER FINLAYSON 
: Yesterday I took the member through the various parts of the bill that make it clear that it is not possible to charge for access to the common marine and coastal area. I said to the member yesterday that if someone tried to do that there are regulation-making powers that will enable the Minister of Conservation to deal with the issue. I do not know what more I can say. 
Hon Rodney Hide 
: I raise a point of order Mr Speaker. I am listening to the member most carefully and I think it is very interesting to hear what he said yesterday. But the question specifically asked whether it was an offence and nowhere did the Attorney-General address that. 
Mr SPEAKER 
: The member has got me a bit there. The member’s party has one more supplementary question and I will listen carefully if it is used on this question. I believe that the Attorney-General has pointed out where it is contrary to the bill and assuming the bill becomes law then I presume that it would be against the law to do so. I presume that is what the Minister was saying. But if the member believes that greater specificity is needed I will listen very carefully to any further supplementary question. 
David Garrett 
: Would it be an offence for iwi holders of customary title to charge or attempt to charge for access to the beach; if so which specific clause in the bill would that offend against or does he not know? 
Hon CHRISTOPHER FINLAYSON 
: As I have said yesterday I pointed out to the member the provisions that make it quite impossible for iwi or hapu to charge. I also referred the member and I can point out the various parts to clauses 118 119 and 120 which enable regulations to be made and regulations could be made to deal with those issues as well. 
Hon Rodney Hide 
: I raise a point of order Mr Speaker. You gave us the opportunity to ask a second supplementary question in order to have the issue addressed. We have used two supplementary questions. The question asked whether it would be an offence to charge for access to the beach. The Attorney-General has gone on to say that there are clauses that set out the rights. The question asked whether it would be an offence to charge. I think we can take it from the Attorney-General’s answer that it would not be an offence but it is very hard to know because he did not address the question. 
Mr SPEAKER 
: With respect to the honourable member—it may be that the honourable member has a deeper knowledge than I do and I apologise for my deficiencies if that is the case—the dilemma I perceive is one of debate around the answer given. The question was commendably direct; I absolutely agree. The Minister has answered it in so far as he interpreted it and I do not perceive the Minister is trying to dodge the question but I might be wrong. It seems to me that it is more a matter of debate around the meaning of the Minister’s answer. I am not sure that that can be seen as refusing to answer the question. With some of these issues maybe the answer is not quite as clear as the member would like but it seemed to me that the Minister established which clauses make it illegal to block access to the beach. He established which clauses provide for regulations to be made that could cover matters relating to charging for beach access. As Speaker I do not have sufficient knowledge to know whether that is an absolutely perfect answer to the member’s question but it seems to me that it is not an attempt to evade the question. I am happy to hear the member if he feels that I have totally misunderstood this. 
David Garrett 
: I raise a point of order Mr Speaker. With respect in my view it is an attempt to avoid the question and for this reason: the question has been very carefully worded as you have noted and it refers to an offence. You have said correctly that you cannot know because you have not looked at clause 64 but we have. I can assure the House that nothing in the clauses cited by the Minister yesterday refers to an offence. That is the first point. 
Mr SPEAKER 
: The dilemma now is that the member is debating the answer that the Minister has given and I cannot allow that. I am not a lawyer and I accept my deficiencies but I recognise the honourable member is a lawyer as is the Attorney-General. I think the Attorney-General has listened carefully to the question asked and I think he believes that he has answered it. I cannot judge the quality of his answer. It would be a big call for me to disagree with the Attorney-General. It does not seem to me that he tried to dodge the question. Whether or not that satisfies the member this matter will be around for a while. If the Minister’s answer is deficient then it will be possible to devise a question in the future to test it still further. 
Hon Rodney Hide 
: I raise a point of order Mr Speaker. I do not want to delay question time but this is quite important. The ACT Party has only two supplementary questions a day. The issue is not what a particular clause states or whether a particular clause allows charging for access to the beach which is the Attorney-General’s point. The issue is whether it is an offence to charge. That was the question. Does this legislation set out that it is an offence to charge? There is no way that the Attorney-General addressed that point. 
Mr SPEAKER 
: I hear the honourable member and I fully accept the inadequacy of my knowledge. This is a serious issue where there is a genuine public interest. The question asked whether it was an offence to charge for use of the beach; certainly if access to the beach goes over private land then people can charge for that. I presume in fact the question was deficient in that regard but the Attorney-General chose not to use that as an out. The Attorney-General has listened to the question and I ask him in the interest of good faith whether he could help the House. My dilemma is that I am not a lawyer and I cannot judge the adequacy of the Attorney-General’s answer. There is a public interest in this. The question was very direct as to whether it was an offence. I invite the Attorney-General to assist the House. 
Hon CHRISTOPHER FINLAYSON 
: I am pleased to; I am here to help. I referred to Subpart 3 of the bill which relates to regulations that may be made. The Governor-General may by Order in Council on the recommendation of the Minister of Conservation make regulations for example for the safety and protection of members of the public who exercise rights of access or for prescribing offences. So it could be an offence. It depends on the circumstances and whether the regulations are made. 
Mr SPEAKER 
: This time we have had an answer. 
Metiria Turei 
: Does the Attorney-General understand that if approved by the Overseas Investment Office foreshore and seabed held in private title can be sold into foreign ownership? 
Hon CHRISTOPHER FINLAYSON 
: Yes I do. 
Metiria Turei 
: So why then does he think it is fair to restrict the customary rights of Maori in the foreshore and seabed but to continue to allow the possibility for New Zealand’s beaches to be sold into foreign ownership? 
Hon CHRISTOPHER FINLAYSON 
: As I have already said two wrongs do not make a right. These titles exist now and unilaterally taking away from Maori and Pakeha who have freehold titles in areas that encompass the foreshore and seabed is discrimination. 
Te Ururoa Flavell 
: Tena koe Mr Speaker. What evidence did the ministerial review panel chaired by Chief Judge Taihakurei Durie rely on in concluding that the Foreshore and Seabed Act 2004 failed to balance the interests of all New Zealanders in the foreshore and seabed and that it was discriminatory and unfair; and how does he think the 2010 bill will fare under the same scrutiny? 
Hon CHRISTOPHER FINLAYSON 
: The ministerial review panel relied on a wide range of evidence both national and international that was submitted to the panel. The submitters included business interests local government iwi hapu and various other groups. The panel also looked at New Zealand case law including the Ngati Apa decision. I cannot predict how the ministerial review panel will necessarily respond to what has been proposed but I think it will acknowledge that those fundamental rights of access to justice have been restored and that the ability of iwi and hapu called applicant groups to apply to the court to have those rights tested has been restored. Those two things were removed under the 2004 Act.