Calvert Hilary Jane: Marine and Coastal Area (Takutai Moana) Bill — In Committee Speaker Recalled In Committee 
Calvert Hilary Jane: Marine and Coastal Area (Takutai Moana) Bill — In Committee Speaker Recalled In Committee 
[Volume:670;Page:17198] 
HILARY CALVERT (ACT) 
: 
 Tau Henare was right when he said that I was at many of the select committee hearings on the foreshore and seabed legislation. One of the submissions that I particularly noticed was one made by Business New Zealand on behalf of 76000 employers and business groups. It talked in particular about the preamble. It talked about what the Marine and Coastal Area (Takutai Moana) Bill is all about and it said that it was there for six reasons: to uphold and protect property rights; to be consistent with the Treaty of Waitangi and relevant common law; to bring legal clarity and certainty; to facilitate economic development for Maori and non-Maori; to integrate with other relevant legislation including the Resource Management Act; and to satisfy overall justice and fairness including appeal rights and remedies. 
As has been mentioned earlier the Prime Minister has said that unless this bill had widespread support he would not be supporting it. Those 76000 businesses and organisations looked at these six criteria thinking that these were the six things that this bill should be doing and said that this bill breaches all six of them. The first reason for the proposed legislation was to uphold and protect property rights and Business New Zealand said a variety of things but at the end it said that the substitute rights that the proposed legislation would create bear no comparison to the property rights assured by the Treaty of Waitangi and even the highest category proposed the customary marine title would restrict iwi and hapu to blocking the proposal of others as the main way to extract tangible returns rather than allowing them to gain full benefit of recognised orthodox property rights. 
When Business New Zealand talked about whether the proposed legislation would be consistent with the Treaty of Waitangi and relevant common law it said: “The Bill is inconsistent with common law in promoting a special status of common marine and coastal area that is contrary to the common law doctrine of eminent domain under which the absolute ownership of all land lies with the Crown.” It said: “Giving away the common law doctrine of eminent domain in relation to the marine and coastal area would leave nowhere for any currently freehold land to revert to should it not be possible to find someone to whom private ownership could pass. This could result in neglected decaying and dangerous structures for which there would be no-one to take responsibility. The Bill expressly denies exclusivity of use of areas under the interests created for iwi except where reclamations are completed”. 
When looking at whether the bill creates legal clarity and certainty Business New Zealand said that the exclusion of freehold land in defined areas would mean that land can become part of the common area by for example erosion and by contrast land that moves beyond the line of mean high-water springs reverts to Crown ownership. “Crown ownership of minerals (other than those designated as the property of the Crown) continues until any such are found within a customary marine title group area. At that point Crown ownership ceases and ownership moves to the relevant iwi group.” Importantly Business New Zealand said: “Rather than promoting legal clarity and certainty the exceptions cited above demonstrate the uncertainty and complexity contained in the proposed legislation.” That is uncertainty and complexity in so far as it could facilitate economic development for Maori and non-Maori. It said: “This approach would also take no account of the time effect of transactions and the ongoing refinement of terms and conditions to suit particular prospective buyers and sellers. For example a falling market might mean the owner had to start afresh when a price moved above market to ensure a sale was not ‘more favourable’; on a rising market the opposite would prevail. This level of complexity for what should be a straightforward transaction illustrates the difficulties for economic development that could result from the proposed legislation.” 
So it does not satisfy the supporting economic development for Maori. The submission then asked whether the proposed legislation would integrate with other relevant legislation including the Resource Management Act 1991. Clearly we will hear a lot more about this later in the bill but it is Business New Zealand’s view that the bill should integrate with other relevant legislation and it fails to integrate with the Resource Management Act. 
As for whether it would satisfy overall justice and fairness including appeal rights and remedies legislation of this kind must be balanced but there must be concern about the differences of interpretation this bill has received doubtless fostering public confusion. If it became law many people could perceive the legislation as unfair particularly in light of the kinds of issues raised in the submission. 
On the question of appeal rights the relationship between applications for recognition by agreement and for recognition by order of the High Court is unclear. With the responsible Minister able to enter into an agreement to recognise a protected customary right it is not apparent why any group would apply to the High Court for a recognition order. The only reason would seem to be uncertainty whether the Minister would be prepared to grant recognition. And although there can be little concern that favouritism would be a feature of ministerial decision-making grants of recognition left to the Minister’s discretion would invite accusations of this sort. If recognition was not granted the further question would arise whether the group involved might then apply to the High Court. 
The preamble also describes this legislation as taking into account the intrinsic and inherited rights of whanau hapu and iwi derived in accordance with tikanga. Tikanga is an  
Alice in Wonderland 
 word. It means whatever the Queen—I think it was the Red or White Queen—said it would mean no more and no less. The preamble goes on to state that “It translates those inherited rights into legal rights and interests”. So we are to believe that this  
Alice in Wonderland 
 word a word that can be defined by the person claiming some property in our coastal land creates legal rights based entirely on the say-so of the claimant. We might just as well ask iwi for a list of what they want and put through a legal transfer. Thank you.