Parker David: Marine and Coastal Area (Takutai Moana) Bill — Third Reading 
Parker David: Marine and Coastal Area (Takutai Moana) Bill — Third Reading 
[Volume:671;Page:17642] 
Hon DAVID PARKER (Labour) 
: 
 I begin by saying it is a great sadness that the Marine and Coastal Area (Takutai Moana) Bill does not settle the issue. As I and other members on behalf of Labour have said previously it means that the objective that National and the Maori Party set for themselves has not been met. We were very close to being able to achieve a settlement that all sides could live with. If there had been an acknowledgment on the part of the Maori Party that this legislation when passed settled the framework for determination of foreshore and seabed in a fair way then I think that the rest of Parliament would have rallied round. We would have tried to deal with the detail of the threshold test we would have tried to take some of the ambiguity out of it and we would have tried to ensure that it was fair. But of course the Maori Party did not take that stance. It actually said that it did not accept it was fair. The co-leaders the Hon Tariana Turia and the Hon Pita Sharples and their chief whip Te Ururoa Flavell said the same thing. As a consequence this Parliament has been left with an assertion that this settles issues when we know both from the attitude of parliamentary parties including the Maori Party including the ACT Party and from Hone Harawira and others that it is but a fiction because they do not accept that this is a fair settlement. That is where for me there is a certain sadness because the issues have narrowed. 
I agree with the Hon Tau Henare that this legislation has never been about access to beaches and that people who use that language are being divisive and are endangering race relations. That is something Labour did not do during the first foreshore and seabed debate nor in this foreshore and seabed debate. I have to put on record in response to some of the criticisms that Tau Henare just made of us some of the comments made in respect of the last foreshore and seabed bill. Some of the worst of them came from current Ministers of the Government. Dr Mapp said: “What the Government is doing here is clearly preferring Maori above all other members of the community … So it is very very clear that we have two classes of citizenship. Maori are in the preferred position.” That was wrong. It is absolutely clear that if there are two classes of citizenship in New Zealand those at the bottom of the economic tree more often than not are Maori not non-Maori. 
Nick Smith said: “This bill is racist. This bill is flawed.” He said that 10 percent of the coastline was going to be vested in new foreshore and seabed reserves. He was replying to what Dover Samuels on behalf of Labour had said about how it would not make any difference to families wanting to go down to the beach and have a barbecue. Dover Samuels said that in this House because National members as senior as Don Brash Bill English and Gerry Brownlee had all been saying access was at risk. Dover Samuels was making the point that that was not the case with the legislation and indeed there was an explicit clause in that legislation that preserved public rights of access. What did Nick Smith say at the time? He said: “Well yes it does and I will tell members why. In relation to the 10 percent that his Maori caucus claims will now be foreshore and seabed reserves it will be for the management committee to decide who will be able to have a barbecue and where.” That is what  
Hansard 
 shows was being said at the time. It was irresponsible and it caused a real divisive hatred around this legislation which this country has yet to get over totally. There are still misunderstandings in respect of both ends of the spectrum of opinion as to what was the effect of the Ngati Apa decision what was the effect of the Foreshore and Seabed Act that we passed and what is the effect of this bill. 
I come back to the issue of whether there has been political leadership. I have quoted previously a column by John Armstrong which I thought summed this up. I know that I have referred to it a couple of times previously but it is worth repeating because I thought he hit it on the head. He said that at the start of this debate we had the Maori Party and their forerunners saying that the existing legislation the Foreshore and Seabed Act was far too rigid and did not fairly recognise Maori unextinguished customary interests in the foreshore and seabed. That was at one end of the spectrum. National at the other end of the spectrum was saying that yes it did far too much. In the middle we had Labour which was actually closer to the Maori Party end of the spectrum than it was to the National end of the spectrum. National moved past where we were on the Foreshore and Seabed Act and it did what we had recommended in our submission to the review tribunal which was to restore the right to get a remedy from the court. One always had the right to go to court to show that but for the Foreshore and Seabed Act one had an unextinguished interest. One did not have a right to get a remedy from the court and one had to go back and rely upon negotiation with the Crown—effectively the grace and favour of a future Government—and a future Government could do an injustice by refusing a remedy and that was wrong. We said that was wrong; we actually agreed with the Maori Party on that. That could have been achieved by way of an amendment to the legislation. The Government has chosen a repeal; we could have gone along with that too. 
Anyway we moved there and National moved there. We could have even been pushed a little bit further on some of those things if we had actually had certainty. But we could not because the Maori Party would not make that little movement from where they sat to actually being leaders and saying that the matter was settled for the sake of our country. We then put up another remedy and said that if we could not reach agreement about what the appropriate threshold tests are we could do what the Greens and the ACT Party suggested which was to put the whole thing back to the court including the threshold tests to let the court determine the threshold tests. In that way Maori rights would be fully recognised. There would no longer be any misapprehension at least in this House that access is at risk. That would have been a good solution. It would also have ensured that Maori customary interests were no more than fully recognised. Well that cannot cause an injustice because this is all about the common law right in the first place too. 
We represent the broad spectrum of opinion within the country. We have a very strong Maori caucus which is keen to protect the legitimate interests of Maori and to protect their unextinguished customary rights. We have representatives of other parts of society as well and we all agree that our Maori members are right. We should fully but no more than fully recognise unextinguished interests in the foreshore and seabed. We proposed that the whole thing be referred back to the court. There was general agreement that there needed to be legislation for the sake of settled race relations and that access was not a threat. There was general agreement that we had to make sure that customary interests could not be alienated because there was a theoretical risk under Te Ture Whenua Maori Act following the Ngati Apa decision that recognised that customary interests could be converted to freehold title and then sold. It was always necessary to have some legislation to close off that possibility and there is now agreement that it was appropriate to legislate re access. 
We are here not because of a failure on the part of the Opposition parties to show willingness to compromise and to get this issue settled. We are actually here because the Maori Party was not willing to make that little bit of movement. We are also here because the Prime Minister was not willing to pick up the phone and say to the Maori Party: “This is the deal guys. We said we were going to settle this and unless we settle it we’re not going to go through with this charade.” If he had done that—well we might have had a settlement also because the Maori Party might have backed down to that. Alternatively National could then have accepted that the issue could not be settled as the fresh codification of the threshold tests was not going to work. National could have accepted that that will not work to the satisfaction of the range of interests that showed up to the Maori Affairs Committee. Then it could have moved to our position and referred the whole thing to the court and that would have settled it too. It is sad that this is not settled. 
I turn to some of the problems we are left with in the process. We still do not know what the legal effect of the changes to the thresholds test is because Parliament has not had any legal— 
Simon Bridges 
: I do. 
Hon DAVID PARKER 
: We have heard Simon Bridges say he knows. It would have been helpful if he had told us at the select committee. We were blocked from obtaining legal advice. The Foreshore and Seabed Act had the benefit of advice from a professor who happened to be visiting New Zealand from Cambridge University who was an expert in matters of international common law rights relating to unextinguished customary interests. We had no such advice at the select committee. The Government blocked us from getting the advice it already had; it refused to let that advice come to the select committee. It was entitled to do that. It can claim privilege but if it claims privilege it shows that the select committee really should be getting its own legal advice. We are now left with both Maori submitters and some of the submitters such as the Coastal Coalition having completely different views about what the effect is of the test because it remains uncertain. Labour opposes the passage of this legislation.