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:17317] 
Hon DAVID PARKER (Labour) 
: 
 I congratulate the prior speaker Shane Jones because I thought that was a very erudite contribution to the debate as to the difficulty Parliament faces in respect of these issues. I want to say why I think this Parliament is missing an opportunity to properly settle this issue. The Labour Party through the Hon Dr Michael Cullen made a submission to the ministerial review panel that said amongst other things that we should settle this issue and that an appropriate settlement could include codification of the common law tests. At the time a very good opinion piece by John Armstrong was published in the  
New Zealand Herald 
. He said this was a difficult issue for New Zealand and that Parliament had had one crack at it. At that time we had the National Party being I would say irresponsible rarking up race relations and making it an almost impossible issue to settle properly at the time. We also had some pretty intemperate comments at the other end of the spectrum. 
By the time of the ministerial review panel we had at least the major parties in Parliament trying to find a way forward that was fair to minority interests and that the country could live with. On that basis Labour said we supported statutory codification of the tests. At the time John Armstrong made the point that if we looked at the spectrum of opinion when the Foreshore and Seabed Act was passed we had the Maori Party or the precursors to the Maori Party saying the legislation was far too tough Labour closer to the Maori Party precursors than to the National in the middle and we had National at another extreme of the debate saying that the legislation was far too permissive in terms of its recognition of unextinguished customary rights. John Armstrong made the point that since that time National had moved very substantially. It had moved past its position at the time of the Foreshore and Seabed Act to say it wanted something that restored to Maori for example the right to go to court. National moved to that position and we moved to that point too and we were willing to move a bit further than National was willing to move. 
All that it would have taken to settle this issue was an agreement from the Maori Party to move from where it sat to where National had got to in respect of agreeing that the solution proposed by National was a fair settlement of the issue. If we had that it may well be that this Parliament would now be expressing unity on this issue and that would be good for our country. Unfortunately I have to say that the Maori Party and National have failed in their duty to the country. They said they would settle this issue. Rather than John Key ringing up the Maori Party and saying “Hey this is the deal can you live with it?” he has not done that. 
I do not want to be paternalistic or maternalistic towards the Maori Party but rather than the Maori Party offering up to say it accepted that this was a fair settlement of the issue the Maori Party said the opposite. It said this was a first step. It said that at the level of the Hon Tariana Turia and the Hon Dr Pita Sharples said the same thing. Those are the co-leaders of the Maori Party and their senior whip said exactly the same thing. He also said this bill was not a settlement. On that basis National asked us to accept the pretence that this was a settlement and that was where we bailed because we said we would not put up with that fiction—because it is a fiction for the reasons I have outlined. On that basis we got to the point where we said Parliament had had two cracks at fixing it and Parliament could not fix it. 
It is obvious Parliament cannot fix what is the appropriate threshold test to the satisfaction of the range of interests involved. As a consequence we say Part 3 which has the threshold test in it is wrong. We say we ought not to be pretending that this settles it and we ought to let these issues play out over time through the courts. I heard the Minister in charge of the bill the Hon Christopher Finlayson say that would be a bad thing because it would take time and it would create uncertainty. The first thing I would say is that presumes this legislation creates certainty. How can that be when the Maori Party and various other sectors in society for different reasons are saying it does not settle the issue? We are kidding ourselves if we think that by saying it is settled it will be. The reality is that it is not. So that is the first problem with the Attorney-General’s argument. 
The second problem with his arguments in favour of codification given where we have got to relates to the suggestion that somehow this will be better because it is simpler and therefore more cost-effective. This legislation enables agreements to be progressed through legislation in Parliament. According to the Parliamentary Library—I asked it to give me some advice on this—the average cost of a piece of legislation in 2010 including the full costs of running Parliament was $2.8 million per piece of legislation. 
Hon Member 
: Can you say that again. 
Hon DAVID PARKER 
: It was $2.8 million per piece of legislation. I am not saying that that is the full cost of every piece of legislation because the marginal cost of legislation is probably not $2.8 million but I tell members that it is a lot lot more than the cost of a court action. A court action for people to explore their customary interests and for the court to determine them does not cost millions of dollars; a piece of legislation does. So the idea that through this new process the Government is introducing we will have a more cost-effective approach is just wrong. It would be far more cost-effective for taxpayers to fund appropriate contributions to legal aid than it would be to proceed by way of Acts of Parliament in respect of these agreements that are going to come forward. 
The codification of these tests is highly problematic. A lot of people in New Zealand will be left dissatisfied. People such as Hone Harawira and the Maori Party say this codification of the test acts as a confiscation of rights. We can never win that argument in this Parliament because the people who believe that never had the ability to test that as we are removing from the jurisdiction of the court their ability to test it. Through codification we are putting the issue as to what should be the proper threshold test beyond the jurisdiction of the court and therefore the sense of injustice from some of the Maori Party’s supporters will always be there. Conversely the people at the other end of the debate who say the test is far too lax—and they might be right—are also prevented from having their day in court to argue what they think. 
Having had two attempts in this Parliament to settle this matter we have not achieved it and it is time to acknowledge that reality. There is an amendment in my name to that effect. Let us put this back to the courts. The Maori Party could vote for that amendment tonight and that would be the outcome. That is what they say they wanted originally. The Greens support that Progressive supports that the ACT Party supports that and I think that Hone Harawira would even support it going back to the courts. All it takes is for the Maori Party or indeed a few people in National—and they are under pressure—if they were not whipped to vote in favour of that amendment and we could have that solution in this Chamber tonight. 
We could have this issue settled fairly setting out a process for everyone to have their day in court. The framework would be settled taxpayers would be better off Maori interests would feel justly treated and other interests who feel aggrieved by this legislation would feel justly treated. We tested that at the Maori Affairs Committee across a wide range of submitters and although it is true that it was not universally accepted the vast majority of people thought it was the way forward. That is why Labour does not support this most crucial part of the bill Part 3 in its current form. That is why we have an amendment to that effect.