Parker David: Marine and Coastal Area (Takutai Moana) Bill — First Reading 
Parker David: Marine and Coastal Area (Takutai Moana) Bill — First Reading 
[Volume:666;Page:14000] 
Hon DAVID PARKER (Labour) 
: 
 I rise on behalf of Labour to support the first reading of the replacement foreshore and seabed legislation the Marine and Coastal Area (Takutai Moana) Bill and I acknowledge Tariana Turia who has just taken her seat. I want to make comments on three areas. First I want to talk about the history of the foreshore and seabed controversy then I want to talk about the main changes that are brought about by the bill compared with the current Foreshore and Seabed Act and if I have time I want to end by talking about the need for a clear acknowledgment which I think is necessary from the Maori Party that it accepts it is proper that this be dealt with as a full and final settlement of the framework for determining customary interests in the foreshore and seabed so that we as a nation can move forward without rancour. 
On 19 June 2003 the Court of Appeal announced its decision in the Ngati Apa case. It found that unextinguished Maori customary interests existed in the foreshore and seabed. We should recall that the case arose from unfair treatment of Ngati Apa in relation to aquaculture in the Marlborough Sounds area. The underlying issues in respect of that injustice have been cured in separate legislation. Aquaculture settlement legislation from the previous Labour Government conferred rights upon Maori in respect of aquaculture which settled the underlying injustice. The Court of Appeal decision in the Ngati Apa case did not define what the threshold test was for customary interests nor which of the rights were unextinguished. The Court of Appeal decision was a surprise to many. It overruled a line of cases that went back to the 1877 decision in  
Wi Parata v The Bishop of Wellington and the Attorney-General. 
 That had been affirmed by the Court of Appeal itself in 1963 in the Ninety Mile Beach case. 
Controversy soon erupted after the Ngati Apa decision and the reaction was not all about customary rights. There were two other significant factors that in my opinion were involved. The first was a septic political environment. There was divisive exaggeration and rhetoric some from Opposition parties at that time. It was not from the Greens; it was not from ACT which took a property rights position; it was not from New Zealand First or United Future; it was from some National members. It is a matter of record which we should not shrink from recalling that Don Brash Bill English and Gerry Brownlee all made repeated inaccurate exaggerated and divisive statements. They preyed upon the intolerance that lies so close to the surface of just about any country they rarked up concerns in an irresponsible manner that pitted Maori against non-Maori and made settlement of these issues very difficult. Their task was made easier by some of the exaggerated statements that were coming from the other side of the debate. In this I do not shrink from saying that Hone Harawira was making assertions that were wrong in suggesting that the Ngati Apa decision effectively gave ownership rights tantamount to freehold title rights to virtually the whole of the foreshore and seabed around New Zealand. That was wrong too. 
There was a second factor in play in my opinion. That was that there was a widespread reaction against the Treaty of Waitangi being used as justification for policies that did not need a Treaty-based justification. At the time there was social policy being advanced that was good just social policy to help people who needed a hand and it did not need the Treaty-based justification. I know and all of us in this House know that the foreshore and seabed rights are not Treaty-based; they are common law - based. But that technical truth is lost on many. It was especially lost at the time of that political climate. Colin James noted at the time that what we were seeing was a high-water mark for Treaty-based political justification of policy. History shows that he was right. I ask members to remember that at the time we had somewhat silly advertisements from the Ministry of Social Development that advertised for even junior positions—receptionists and the like—to require an understanding of the principles of the Treaty of Waitangi. A lot of people in New Zealand thought that it had gone just too far. That is not to deny the fundamental constitutional importance of the Treaty of Waitangi in our country but there was a backlash against that. 
In any event on one side we had National saying that the Foreshore and Seabed Act was too generous; on the other side we had Tariana Turia and others saying it was too restrictive. Some have asserted that the 2004 Act was rushed but I do not accept that. The Court of Appeal decision was on 19 June 2003 and the Foreshore and Seabed Act received Royal assent on 24 November 2004 a year and a half later. There was a full select committee process thousands of submissions as Tariana Turia has acknowledged public meetings and protest marches across the country. Some say the Crown ought to have appealed to the Privy Council at the time. I accept that that is arguable. It was complicated politically at the time by the replacement of the Privy Council with the Supreme Court. In my opinion appeal would have been likely to overrule the Court of Appeal in finding that the Maori Land Court a court of statutory jurisdiction had jurisdiction over the foreshore and seabed given that nothing in the empowering Act talks about anything other than land and in fact land that is dry. I personally was disappointed that the courts which have given themselves the power to have regard to  
Hansard 
 in areas of ambiguity or uncertainty declined to do so in that case because the  
Hansard 
 debate does not show any reference. I for one thought that that would have been overturned. Although that may have been the case legislation would still have been necessary to protect rights of public access because the underlying thesis of the court was right—that is that there were properly-to-be-recognised unextinguished customary interests in the foreshore and seabed. That need for legislation to protect public rights of access and recreation was denied by the Maori Party until after the review panel concluded that it was necessary. It is now clear that legislation was always necessary. We know therefore that appealing the decision would not have cured things and that legislation was necessary. 
The 2004 Act was passed. It is clear that criticisms from both ends of the spectrum were exaggerated but it was not perfect. Labour has engaged constructively to improve it. Changes to the name—and it is mainly a change of name from vesting the foreshore and seabed in the Crown to creating a common marine and coastal area—do not change things in substance if the bundle of rights held by different groups are the same. Essentially that is what is happening here: the bundle of rights does not change and public access is protected. It was never about fisheries and it still is not. Other customary interests are still being recognised as they ought to be. The main difference between this legislation and the Foreshore and Seabed Act is that Labour and other parties have agreed that it is appropriate also that the court has the power to award customary title which under the current legislation is called a territorial customary right. We said that in our submission to the review panel. 
This is an important change. I accept that. It has to be said that it is an important process change; it does not change the substance of an outcome it is a process change. Previously a claim to a territorial customary right could be considered by the court. If the court found an unextinguished right remained prior to the Foreshore and Seabed Act the court could not confer that right but rather had to refer the matter back to the Crown for a negotiated settlement. That carried with it a risk that a future Government could frustrate fair claims which is why we agreed that giving the power back to the court is appropriate despite the fact that the prior regime enabled a fair outcome in respect of Ngati Porou. 
It is clear that the changes being made could have been achieved by amending the existing Act rather than repealing it but we have said we can go along with that. Repeal is important to the Maori Party so we will agree to that as part of our offer to get this settled. 
Hon Tau Henare 
: Greaser. 
Hon DAVID PARKER 
: “Greaser” was the comment we had from Tao Henare. 
Hon Tau Henare 
: “Tao”? 
Hon DAVID PARKER 
: Tau Henare. That is the same sort of unhelpful rhetoric that we do not need in order to settle this dispute. 
Legitimate issues have been raised about whether the new legislation will settle the protracted controversy. The stated objective of the Government which includes both National and Maori Party members is to fairly settle the issue. It is perfectly reasonable to expect that John Key on behalf of National will obtain an acknowledgment from the Maori Party or that the Maori Party will offer that the proposed legislation fairly settles the framework for foreshore and seabed claims. Failure to achieve that will represent a failure by both the Maori Party and the National Party in their duties to the country to reach a fair and enduring outcome. 
Labour has given the Government a benign political environment in which to do this. We have not scaremongered we did not run “Kiwi not iwi” billboard campaigns like National ran when the first legislation was proposed. We have been public in our criticisms of those who are running a billboard campaign against National at the moment. It is ironic though; we see that. We have actually done the right thing in criticising that as wrong. We agree that achieving full and final settlement of the legal framework for the foreshore and seabed is important for our country. If it will not be achieved in the benign political climate that we have helped create around this then when will it ever be created? If we as a country cannot deal with these issues and move forward in a fair and durable way it does not say a very good thing about our country. If the acknowledgment that this new legislation settles the framework fully and finally is not forthcoming then I believe that the Maori Party will have failed in its duty to the country and National will not have achieved its purpose. We need to move forward as a country without rancour. The time has come to settle this.