Shirley Ken: Urgent Debates — Government Proposals for Seabed and Foreshore 
Shirley Ken: Urgent Debates — Government Proposals for Seabed and Foreshore 
[Volume:611;Page:8048] 
Hon KEN SHIRLEY (Deputy Leader—ACT NZ) 
: 
 Last Monday the Government announcement on the proposed ownership of the foreshore and seabed of New Zealand created a political vacuum. Nature and politics hate a vacuum. We now have massive uncertainty and anxiety and confusion reigns. Rather than make matters clearer the Government’s announcement on Monday added to the confusion. 
In considering this issue the ACT party has two guiding principles. Firstly ACT supports the sanctity of property rights—all property rights and all forms of property rights—and secondly ACT believes in one law for all. We all have common rights and responsibilities before the law. I and the ACT party call upon the Government to explain certain things. I ask the next Government speaker in the debate to answer some of the questions that have been raised. First why did the Government change its mind? We have just had a very spirited speech from the proxy Prime Minister Dr Cullen but his position was totally opposite that of the Prime Minister and the Attorney-General just a few weeks earlier. 
Following the Court of Appeal decision in June the Government moved very swiftly and a lot of New Zealanders said: “Thank goodness. Hurrah for that.” The Government—the Prime Minister and the Attorney-General—came out immediately on the Monday after that court decision which was delivered on Thursday 24 June and asserted Crown ownership of the foreshore and seabed. The Hon Nick Smith tried to table that very statement in the House earlier today and was denied leave by Government members. The Deputy Prime Minister has just claimed that the Crown and the Prime Minister had not asserted ownership. They certainly did assert it and then what happened? They changed their minds. Why did they change their minds? It was because the Maori Labour caucus went into revolt. The Maori Labour members issued a statement. There were all sorts of extremes within it. Tariana Turia claimed absolute Maori sovereignty and ownership while at the other end of the spectrum the more sensible member John Tamihere called for reason and caution and tried to hose it all down. 
Essentially the Maori Labour members were whipped up by and responded to the expectations of Maoridom and those expectations are still quite dramatic. I draw the House’s attention to the comments of Matiu Rei. He is a rational and a very reasonable man; I would not call him particularly radical. He is a fine upstanding gentleman. Matiu Rei is a spokesman for a number of iwi on the foreshore issue. His expectation was published in the  
Dominion Post  
last Saturday. It read: “Our customary rights in respect of the coastal marine area include but are not limited to self-governance (control regulate manage and allocate) development (both in a cultural and economic sense) exclusivity (being able to exclude in accordance with tikanga ie rahui) use (in its many forms) and access.” That is absolute ownership and it cannot be called anything other than that. It is an example of the confusion that reigns on this issue. 
The Crown initially took a strong position and asserted Crown ownership but then backed down almost immediately and issued a statement last Monday that the Government will now legislate to provide that no one owns the foreshore and seabed and it is what we call the public domain. I ask a Government member to rise to his or her feet in this debate and to explain to us the difference between “public domain” and “Crown ownership”. We are all part of the Crown. This is the nonsense of partnership. In 1840 two parties came together: Maori represented by their individual chiefs and the Crown. But from the day that the treaty was signed we were all one before the Crown. That was what Hobson told every chief as those chiefs signed the treaty. He said we were all now one under the common Crown. The Crown is us and we are the Crown. That is the nature of sovereignty. 
We have dug ourselves into an incredible situation and the foreshore and seabed debate almost epitomises the confused path that one goes down when saying that one has somehow a partnership of governance. Split sovereignty is not possible. No society has succeeded on the basis of split sovereignty. It is sophistry. What the proxy Prime Minister Dr Cullen is telling us is absolute sophistry and he knows it. He cannot explain the difference between “public domain” and “Crown ownership”. Who will regulate and control the use of the beaches and foreshore? Who will issue the permits for moorings harbour boards boat ramps or aquaculture? The Crown must do that and in order to do that it must assert ownership—ultimate title—otherwise it has no basis to do that. The challenge for this Government is to stop trying to have a bob each way to quit the sophistry—it is clear and evident to the whole country that it is sophistry—and to come clean and tell us what “public domain” actually means. 
There are a number of other issues that need addressing. One is the anomaly with regard to the Rotorua lakes. The Attorney-General Margaret Wilson representing the Crown is right at the point of transferring the ownership of the lake beds and the lake foreshores of 14 Rotorua lakes to Te Arawa. The Government is right at the point of signing that; it is a done deal. What is the difference between those lake beds and foreshore and the coastal seabed and foreshore? The public has the same right and expectations of public access over that domain for a wide range of recreational and other pursuits—it is no different from the coastal foreshore and seabed. So can a Government member explain how the Government can say that no one owns the coastal foreshore and seabed but somehow ownership of lake beds and foreshores can be transferred when essentially the issues are the same? That is the challenge for this Government to address. 
The other aspect that ACT feels very strongly about is the issue that anybody should have the right to test define and determine his or her property rights in a court of law. I uphold that right. Possibly there is some form of customary use right. That is what Heta Hingston determined and what the Court of Appeal has upheld. Maori should have the right to determine and to better define what those customary use rights might be in terms of the foreshore and seabed. I am not frightened by that and I do not think any New Zealander should be—I think customary use rights will be much more limited than some people may think. But that raises the issue of whether we have a balanced an impartial and a competent Maori Land Court or whether it has become an imbalanced court that is stacked with a particular agenda. I offer that as a question. If the latter case applies we have a bigger problem in this country. If we cannot trust the integrity of the courts and the judiciary and cannot trust them to be balanced and impartial that is a much deeper problem that should concern us all. 
I ask Government members whether they have faith in the impartiality balance and integrity of the Maori Land Court—yes or no? If they do not have faith in it they had better do something about that as they are the Government of the day and if they have faith in it we should trust the courts. That is really what this issue comes down to. A political vacuum has been created confusion reigns throughout the country and the Government must explain the vacuum that it has created.