Parker David: Marine and Coastal Area (Takutai Moana) Bill — In Committee Speaker Recalled In Committee 
Parker David: Marine and Coastal Area (Takutai Moana) Bill — In Committee Speaker Recalled In Committee 
[Volume:670;Page:17189] 
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.