Brash Don: Foreshore and Seabed Bill — First Reading 
Brash Don: Foreshore and Seabed Bill — First Reading 
[Volume:617;Page:12720] 
Dr DON BRASH (Leader of the Opposition) 
: 
 I very much wish that I could rise to speak in favour of this bill because it is probably one of the most important pieces of legislation to come before the House this year. Over some years we have had a tradition of getting broad parliamentary consensus on treaty settlements and that is something I strongly welcome. But alas I cannot support this bill and the National Party will be voting against it. We oppose the bill because it creates confusion and uncertainty. It will increase not decrease racial tension and it will compromise the effective management of the coastline and the seabed. New Zealand is at a time in its history when we should be looking forward and not backward. We should be looking forward as one country—certainly of many peoples—and not looking back. The risk we face is that this law will not unite us; it will in fact create further division. We want to have a nation where we can go to the beach where we can catch fish from a dinghy and where we can establish a mussel farm without regard to ethnicity. 
This issue is a mess because the Government has mucked about for nearly a year. It has had no fewer than five different policies over that period. As a consequence the Government has raised the expectations of Maori people and the result of that we saw outside Parliament yesterday—and indeed we see it outside today. Having had their expectations raised Maori people feel understandably upset because they perceive those expectations are being dashed. We needed decisive leadership but that was lamentably absent. 
The Minister pointed out that the bill provides for the Crown ownership of the seabed and the foreshore— 
Hon Dover Samuels 
: You would support that? 
Dr DON BRASH 
: —and if that was all that it did we would be voting for it. That is quite right. We would be voting for it because that is consistently the position we have taken on this issue since the Court of Appeal decision last year. Indeed ever since the 1860s it has been clear to New Zealanders that the Crown owned the foreshore and the seabed and that those areas could not be alienated from the Crown without a specific Act of Parliament. That was widely understood by both Maori and other New Zealanders. The issue we debate today arises because of an inadvertent legislative slip-up in a bill that was initially drafted by the Labour Government of the 1980s and passed when National was the Government in the 1990s. That inadvertent error has come back to bite us and it has led to the Court of Appeal’s decision last year. It was never the intention of this Parliament to have the seabed and foreshore in any ownership other than the Crown’s except where fee simple title existed—and that of course is clear in the notes the Minister issued on this bill on 7 April. 
National opposes this bill because far from simply correcting that inadvertent error it creates a whole new raft of radical new legal instruments. Let us consider the new jurisdiction of ancestral connection and the new jurisdiction of customary rights. If any Minister or any Government had proposed those measures before the Court of Appeal decision they would have been dismissed out of hand. This legislation will make existing problems a lot worse and it will give scope for a whole new era of the treaty grievance industry. It will make the Resource Management Act even more bureaucratic and even more costly with regard to the 2500 coastal consents processed each year. It will create another area of law where we have different standards for New Zealanders depending on their race. 
The ancestral connection provisions are quite bizarre and it is inevitable that they will end up covering a substantial part of the total coastline. In the Government’s own notes on this bill issued on 7 April it stated that recognition of ancestral connection would bring with it a strengthened ability to participate in decision-making processes over the relevant coastal area. If that is not an invitation to iwi who have such ancestral connection to demand some form of compensation from anyone who wants to access or use the seabed and the foreshore I do not know what is. Ancestral connection is to be determined by the Maori Land Court where there will be no right for non-Maori New Zealanders to have their say. 
The new customary rights orders are also riddled with problems. Ostensibly those rights are given to both Maori and other New Zealanders but again I read from the notes issued by the Government that to qualify to have a customary right recognised the court must be satisfied “the application is made on behalf of an established and identifiable group and the activity use or practice has to be integral to the culture of the group has been exercised substantially uninterrupted since 1840 and continues to be exercised …”. Not a lot of non-Maori groups will qualify under those criteria. While the Government pretends this is an issue open to both Maori and non-Maori the reality is quite different from that. Dr Bill Hodge the constitutional law expert at Auckland University said in relation to this bill that Maori have had a complete victory. Before the Waitangi Tribunal in January the Solicitor-General talked about essentially the same issues and not very differently at all from Dr Hodge—using different terminology but basically saying the same thing. The Solicitor-General said that basically this bill would give Maori groups a substantial power of veto over the use of the coastline. 
I turn to the High Court orders for compensation. The bill provides that the High Court can not only investigate a claim but award compensation. All other treaty grievance models provide that Cabinet and Ministers and not the courts are responsible for settling any treaty grievance. 
We oppose this bill because in essence it provides for a confused management of the seabed and the foreshore. Councils will not be responsible the Government will not be responsible and not even iwi will be fully responsible. The Crown may own the foreshore and the seabed but de facto control will be with iwi. This bill gives Maori a poison pill they will get value from by interfering with the rights of other New Zealanders. That is a tragedy because it tells Maori that their path to prosperity is by clipping the ticket. That is not the way to long-term prosperity. Worse still the bill does that in a way that exacerbates and does not improve race relations in New Zealand. I wish I could support this bill. Sadly we cannot.