Foreshore and Seabed Bill — In Committee Speaker Recalled In Committee 
Foreshore and Seabed Bill — In Committee Speaker Recalled In Committee 
[Volume:621;Page:17013] 
Foreshore and Seabed Bill 
In Committee 
Debate resumed. 
Part 2 Public foreshore and seabed  ( 
continued 
)  
Hon Dr MICHAEL CULLEN (Deputy Prime Minister) 
: 
 Let me just try to respond as best I can to that sort of farrago of paranoid nonsense because that is what it actually was. 
Dr Wayne Mapp 
: The Prime Minister said so. 
Hon Dr MICHAEL CULLEN 
: No the Prime Minister did not say that. The member really has got to stop misquoting people in the House in that way. Clause 11 says that the public foreshore and seabed is vested in the Crown. That then has to be judged against another constitutional fact in New Zealand which is that Parliament is sovereign and no Parliament can bind its successor. [ 
Interruption 
] 
I do not see much point in laughing about that. Some of us believe it is a fairly important principle of our constitution. I invite the member to shut up for a minute—if he does not listen at home he at least should listen here—and listen to what would happen if clause 12 did not say that alienation cannot occur except by a special Act of Parliament or under section 355 of the Resource Management Act. What does the member think would happen? Under this bill if there was no mention in clause 12 of that the Crown could alienate public foreshore and seabed by means simply of agreement or sale. All that subclause (2) of clause 12 says is that the only mechanism by which that can be done is under section 355—and as the member will note that is subsequently actually amended in a very significant manner so that the only alienation that can occur is in terms of a perpetual leasehold as opposed to a freehold title—or by Act of Parliament. 
But our saying that actually does not change the fact that an Act of Parliament could change that provision in clause 11 in any case. If clause 12 did not exist—and this is where it is a paranoid farrago of nonsense—the reality would be that there would be less protection for Crown ownership. The law is as simple as that on this point. Why members of the National Party keep going into these issues in that form I do not know. They are actually making fools of themselves amongst the general public who understand some of these things. 
Two members are moving entrenching clauses. The point I would make first of all is that this Parliament has only ever passed entrenching clauses on matters where it is actually determining the interests of its own members and the reason for the entrenching clause is to prevent a simple majority affecting the rights of the minority in that respect in certain parts of the Electoral Act. They are very specific and they themselves of course have been there for a long time and have acquired a strong conventional status in that respect. We have done it nowhere else and I do not believe we should start going down the route of entrenching clauses in general. I think they are bad law and should be confined to cases such as the Electoral Act. 
In the case of the Green amendment I am particularly opposed because it distinguishes between a super majority required for an alienation generally and a simple majority required for an alienation in the context of a Treaty of Waitangi settlement. It does seem to me that that would open up the bill to very strong accusations of having effectively an ethnic-based or racist-based element within it. It would have to be across the board as Mr Baldock’s amendment is across the board. But the Government cannot support that amendment and of course as I am sure the member realises to pass a 75 percent entrenching clause requires 90 members of the House to vote for it and therefore of course that amendment will actually fail. 
BILL GUDGEON (NZ First) 
: 
 Tena ano tatou katoa i huihui mai nei i roto i tenei o o tatou whare. Greetings to all of us who are gathered here today. 
Simon Power 
: I raise a point of order Madam Chairperson. Just as a matter of clarification as we head into Part 2 I ask whether it is your intention to have two calls in a row for parties that support the bill or do you intend to follow the convention of having a speaker who opposes the bill following one from a party that supports it. I would be interested in your view on that. 
The CHAIRPERSON (Ann Hartley) 
: The member is quite correct. I did make a mistake. The speaker should have been from the opposing side. I will certainly make sure that that will happen. 
Dail Jones 
: I raise a point of order Madam Chairperson. I am sorry to interrupt the New Zealand First member. When the Rt Hon Winston Peters was speaking he was interrupted five times on points of order by the National Party and the ACT party. I would ask that if National members wish to raise a point of order on a matter of procedure they do that either before a speech begins or after a speech ends. It is simply a matter of courtesy and I hope that those members would bear that in mind in future rather than interrupting us all the time. 
The CHAIRPERSON (Ann Hartley) 
: The point of order was a correct point of order and it was correctly called at the time. It was also my error. 
BILL GUDGEON 
: For the Committee I would like to go back a little in history. It might refresh the minds of some of us who are in the older age bracket and some of those in the younger age bracket might learn something today. To an almost purely Maori audience at Whangara on 25 April 1946 Anzac Day Ngata stated in plain terms his loyal attitude and also Maori indebtedness to the British Crown and Commonwealth of Nations. In a speech considered by many to have been one of the most significantly effective of his career he declared and maintained that although the Maori people had suffered from many injustices inflicted in the past they as an indigenous race were fortunate indeed to have come into the membership of the British Commonwealth. Although insistent upon the recognition of rights as British subjects that were guaranteed to his race by the Treaty of Waitangi he never spurned cooperation with the Pakeha. His life was and had been devoted to the preparation of his people for full responsibility as citizens. British authority was accepted by our forefathers and it has given Maori the rights they would not have been accorded under any other. 
New Zealanders will own the foreshore and seabed. If we are building a road to somewhere let us build it together. The road to nowhere is achieved by divisive tactics choices and policies. New Zealand First has advocated and will continue to advocate policies for one law for all in order to build nationhood rather than no good. Is that really too much to hope for? The question was asked in this Chamber on 10 November 2004 by New Zealand First leader Winston Peters.  
The beach will not cannot and never will be sold to foreign interests. Customary rights for New Zealanders will be protected. Policies of irreversible damage over the past two decades have led us to a constitutional crisis as to who owns our foreshores seabed and all their other resources. Those policies were created by former Governments. If we follow along those lines it will support and confirm the ideological thinking of the leader of the National Party Dr Brash that racism exists.  
On 27 March 1995 the  
New Zealand Herald 
 reported Dame Whina Cooper’s concerns about Aotearoa. The view that Dame Whina Cooper had campaigned for all her life was to bring New Zealand together. All this talk of sovereignty and separatism is contrary to her vision for New Zealand.  
The object of this act is to preserve the public foreshore and seabed in perpetuity as the common heritage of all New Zealanders in a way that enables the protection by the Crown of the public foreshore and seabed on behalf of all the people of New Zealand including the protection of whanau hapu and iwi. It amazes me that as soon as the words whanau hapu and iwi are brought out we are accused in this Chamber of being racist. If I said family extended family and the greater extended family would that change the issue? Would that say that we are not racist? 
Port companies will get certainty of tenure. We are confident that with the outcome we have secured that provision will go ahead. I am confused about where the National Party is coming from. One minute they are telling us of divisiveness that exists and now that New Zealand First is promoting the law National is opposing it. 
LARRY BALDOCK (United Future) 
: 
 I rise to speak on Part 2 and in my first call on the part to address the issue of my amendment on the table with regard to the entrenchment of clause 12(2)(a). After the speech of Dr Wayne Mapp I am almost certain that we will have National Party support for that amendment because he made it very clear that National wants to prevent any future alienation of the foreshore and seabed. So we shall look forward to National’s vote when the vote is taken at the end of this debate.  
After the presentation by the member from New Zealand First I am almost certain that that party too will be supportive of the amendment because its members are known to have been going around the country for some time talking about not selling off the silver in New Zealand. The Rt Hon Winston Peters already said in his speech: “We can’t we won’t we will not sell the beach in New Zealand.” So we look forward to New Zealand First’s support also.  
My amendment is simply to alter clause 12(2)(a) so that instead of the clause saying that any part of the public foreshore and seabed can be sold only by a special Act of Parliament it will require that that special Act is passed by a majority of 75 percent of all members of the House of Representatives. Although it is true—and I agree with the Hon Dr Michael Cullen—that no Parliament can bind a future Parliament a Parliament can make it more difficult for a future Parliament to alienate the foreshore and seabed.  
That is something that many submitters throughout the submission process asked the committee to look into. There was a great deal of suspicion for different reasons on different sides of the issue and a great deal of suspicion about the Crown’s intentions in taking ownership—suspicion that in future the Crown may be tempted to flog it off for short-term gain. I believe that the amendment I am proposing is clearly in response to that request and is a reasonable one. I was hopeful that the Government might have seen that also because the suspicion still remains. If the Government doesn’t support this amendment then people will be wondering whether it intends to do some backroom deals in terms of treaty settlements. 
United Future has no problem with what is now emerging in the bill—the opportunity for a foreshore and seabed reserve to be placed on top of Crown title in order to give a recognition to a territorial customary right—but we would have a concern if a freehold title were being given to Maori because we have made it very clear that no one is to own the foreshore and seabed. So it would certainly send a very clear signal to New Zealanders if the Government supported this amendment and entrenched that particular clause.  
Another part of my amendment would create new clause 114(aa) which concerns the issue of double entrenchment. We would like to get really tough on a future Parliament by not only stating in the Act that the provision has to have 75 percent support which we all know can be amended by simple majority but by also supporting clause 114(aa). That would mean that whatever the majority was passing that clause—and I tell Dr Cullen that I understand from my advice from the Clerk it does not have to be 75 percent—the initial clause of 12(2)(a) would be entrenched to that level. The majority could be 60 percent 70 percent 90 percent or perhaps in this Parliament it could be as much as 100 percent because we have all been hearing speeches—except perhaps from the ACT party—that here there is no intention ever to see the foreshore and seabed alienated. 
So as this amendment is put on the Table I hope the Government might reconsider its position. I am confident of the support of National and New Zealand First and also the Green Party. The Green Party certainly would not want to see the foreshore and seabed sold off in any shape or form. In fact it has a similar amendment although as Dr Cullen pointed out it allows for a treatment different to mine under the treaty clauses. 
I am hopeful we may see my amendment pass. It will mean a great deal. I do not think we need to be hung up on the fact that we are setting a precedent because this Parliament sets precedents all the time. In fact we do that any time we really want to; it is just a question of whether we see the matter as being important enough to do so. If we do not pass the amendment then that raises issues with clause 15 which I will deal with in my next call. 
RUSSELL FAIRBROTHER (Labour—Napier) 
: 
 I rise to speak against the last speaker’s proposal that we entrench clause 12 by requiring a different level of voting in this Parliament. That argument has to be opposed for two reasons. The first is that it misunderstands parliamentary sovereignty and the fact that the Government is answerable to the electorate every 3 years. This Government knows that by election time the electorate will appreciate the wisdom of this legislation and the fact that it is an effective and elegant resolution of a difficulty raised in the Court of Appeal last year. 
The second reason why I oppose any such amendment is that traditionally in our Parliament entrenchment provisions are left for matters of high constitutional significance. The fact that the member suggests this matter is of high constitutional significance reveals a basic misunderstanding of the purpose of the legislation. This is not legislation that deals with deep-seated constitutional principle; it is legislation that clears up the uncertainties in the queries created as a result of the Ngati Apa decision. That decision simply was the expression by the Court of Appeal of the confluence or intersection of the developing aboriginal customary rights law in international common law with our own common law and with the failure of the Te Ture Whenua Maori Act to provide adequately for where that intersection should occur. This bill is no more than that and no less than that. It clears up those uncertainties in a very fine form without addressing basic constitutional principle. 
Therefore to entrench clause 12 would be to perpetuate the myth and mistake that many make—that this is major legislation that overturns many constitutional rights and freedoms. We saw that time and time again at the select committee where many submitters spoke of the Crown not as being the collective body of leadership in this country—the administrative executive and political will embodiment of this country—but as being a partisan party to the treaty as one part in a two or more party debate. So many submitters came to the select committee with the Crown as the other side of the debate. In terms of some discussions and in litigation that is correct: the Crown is a multifaceted thing and in this legislation as in much legislation it means more than the bipartisan debate of a court room. The Crown is all of us—all New Zealanders. 
That takes to me to clause 11(1) which is perhaps the fundamental premise of the whole bill. Dr Mapp spoke about this clause in his speech. The clause is there to resolve the uncertainty discovered by the Court of Appeal judges in the Ngati Apa case. They pointed to legislation and referred to the eight or so Acts whereby previously it had been understood that the foreshore was vested in the Crown. But because the terms were not precise and absolute enough the Court of Appeal considered there was an ambiguity as to the effect of the legislation which did not relieve the Crown of the burden of aboriginal customary rights. 
So clause 11(1) answers the concern expressed by the Court of Appeal. It reinforces what every person in this country knows is the law except those who are trying to gain an unfair advantage over others. It is what every person last Christmas would have said was the position and what every person 10 Christmases ago would have said was the position as they walked along the foreshore. It is a simple statement of understood fact; it is now a legal clarity; and it is a legal simplistic statement of what the position was always intended to be and will be hereafter. So it is a statement not radical in nature but confirming the understandings of lay people lawyers and judges. 
If I were thought to be wrong on that one would have to ask where the argument and debate was before June of last year when the Court of Appeal decision was released. No one discussed this matter then because we all understood what the law was to be. We all understood what the eight Acts referred to in the Court of Appeal decision intended to achieve. We all understood what the Te Ture Whenua Maori Act meant to achieve when it referred to land. We all understand that that legislation referred to land and not to seabed and foreshore—otherwise it would have been the “Te Ture Whenua and Moana Act” perhaps. So this bill sets right that which the Court of Appeal discovered was wrong. 
STEPHEN FRANKS (ACT) 
: 
 This part of the bill that the chairman of the Fisheries and Other Sea-related Legislation Committee has just been explaining does to some extent reflect existing law. But it goes further. Indeed Dr Cullen’s intervention when he tried to explain why a provision stated not only the obvious but in fact cast doubt on the obvious I think exaggerated the problem that has been created. Some poor judge some day will probably pour through that contribution to this debate in an attempt to work out whether in fact there was an assumption by the drafters or by this Committee that clause 12(1) did prevent or tried to affect a subsequent Parliament and that we wanted to make it clear or whether there was some sort of developing doctrine that Parliament could bind future Parliaments. I am sure that Dr Cullen’s address on the matter will have helped.  
But what is not clear is why this part then goes on and tries to trample all over the idea that the Crown’s ownership is normal full absolute ownership by cancelling the Crown’s computer-generated titles. The Minister in the chair the Hon Dr Michael Cullen could I am sure explain just what is intended by that. Is it some kind of vandal’s assurance—some notion that if we cancel the computer entries that show the boundaries of what the Crown owns which is just what a title is—that it is a deeply emphatic statement that the Crown never intends to do anything with it? If that is the case then New Zealand as well as Maori are losing badly by this move.  
There is a great temptation in this House to make bold statements about the seabed and foreshore never being available for any kind of alienation. In fact every community in this country will have projects that will require them to come to this House and get a special Act of Parliament to allow them to finance and achieve outcomes on what is currently public foreshore. The reason is that most of New Zealand’s coast is not the kind of iconic beach that this debate focuses on. It does not provide great fishing spots. Much of it is land that is eroding. Much of it is land where people will want to protect existing boundaries. They will have works that are not just breastworks for marinas or ports; there will be roads to quarry and all kinds of works to undertake that this will complicate— 
Hon Pete Hodgson 
: Below the low-tide mark? 
STEPHEN FRANKS 
: Below the mean height—of course there are. I can think of an area very close to my place in the Wairarapa where the legal road has disappeared into the sea but the actual road being used gets moved probably every 3 or 4 years.  
This bill states that even legal roads will disappear if they are not used. It does not state for how long. A road could be blocked for a week. According to this the Crown could say: “Sorry you’re trumped—off you go.” Why does the bill not define how long the period of disuse is—because this is a great fat confiscation to make a political statement? 
 The Minister in the chair Dr Cullen is leaning back looking amused by this—probably because he is thinking: “These are the arguments I made to my colleagues but they were too stupid to listen.” He is probably thinking that this sounds very similar—[ 
Interruption 
] I see we have stirred Mr Peters into action. He is saying: “These are the arguments that Dr Cullen was making to me but I was too politically cunning to pay any attention because they are simply rhetorical.”  
Part 2 is going to be very expensive for communities all over New Zealand. Part 2 states that not only does the Crown own it absolutely but in response to Nanaia Mahuta it does not have to have regard to any fiduciary interests. I could not understand Nanaia Mahuta’s speech earlier today when she said that the Crown held as a fiduciary. This bill expressly states that it does not hold as a fiduciary. It holds absolutely as the Crown—in fact the old-fashioned imperial Crown from the look of it because I cannot imagine what other purposes it would have held for other than as a fiduciary for the people of New Zealand but this bill states that it does not.  
That will make it much easier for the Crown in defeating opportunistic claims but why is it that the Crown has to grab all of the existing property interests other than those that are expressly private? Why do local authorities have to turn up cap in hand and go to the Minister of Conservation? He is not required to pay them proper compensation.  
SHANE ARDERN (National—Taranaki-King Country) 
: 
 I have been seeking the call for some time and it is an honour to be given one. 
Hon Maurice Williamson 
: Well don’t waste it. 
SHANE ARDERN 
: I certainly will not be wasting it because I have a question for the Minister in the chair the Hon Dr Cullen and for the chair of the select committee. Why did they not allow this measure to go through the Maori Land Court process? The only answer that I can conclude is that they did not trust the lefty activists that they themselves put into that court. Why else was it not allowed to go through the full court process? The chair himself said that this is a very simple amendment and it is not as big as people make it out to be. If that is the case then why not trust the court process to sort it out? Why are we here today under urgency with this kind of process? 
Hon Dr Michael Cullen 
: Is that the National Party position? It’s position No. 5 for today. 
SHANE ARDERN 
: The Minister can criticise the National Party but he has not answered that basic question. Why is it that Maori in New Zealand who have blindly followed this Labour Government and other Labour Governments for the last 100 years were not given a simple answer to that question? The Minister in the chair will not answer but we know what the answer is. It is because it was politically too difficult for them to handle. I remind those members of the old saying: “You can please some of the people some of the time but you can’t please all the people all the time.”  
The Labour Government has tried to have a bob both ways and it has failed. If it were not for Winston Peters and the New Zealand First Party this legislation would have fallen over because the Maori members of the Labour caucus have been jumping out of the waka so quick it has tipped over as well. If it had not been for the support of New Zealand First this bill would not have proceeded.  
I say to the Minister and to those other members if it is a very simple amendment why is it that we had hui up and down New Zealand for months and months then we had a select committee process that went on for months and months then a 67-page Supplementary Order Paper that was introduced yesterday afternoon at 5.30 p.m.—[ 
Interruption 
] The Minister is disputing what I am saying about the Supplementary Order Paper but I have a copy here and there are exactly 67 pages. I was absolutely right. The Minister does note even know how many pages there are in his own Supplementary Order Paper. Why was that Supplementary Order Paper introduced at 5.30 yesterday afternoon without Parliament being given the proper chance to go through it in the way that it should?  
I say to the members of the Maori caucus that they have been duped and their electorates will point that out to them. It will not happen for a while—probably not for a couple of years. I forecast that the real problems hidden in this divisive legislation will not surface for a couple of years but when they do they will remember who it was who allowed this to go through Parliament. I say to them that they still have a chance. One of their colleagues has jumped out of the waka and there is still time for the rest of them. They can jump out of this waka tip it over sink it and finish it. This legislation is not in the best interests of their own people and I appeal to their better judgment to do what is right and hang out for their own people. They sent them here they elected them and those Maori members should not let themselves be swept along with the rest of the socialists who are trying to sweep them under the carpet with this legislation.  
There are 18000 kilometres of coastline in New Zealand. As the chair of the select committee said everybody in New Zealand had an expectation in mind as to who had access. It came about as a result of Queen Victoria saying to Governor Hobson in 1843 that the people of New Zealand whether they be Maori or European should have access to the seabed foreshore and coastlines and that has been the case ever since. There is no dispute about where that started; it is absolutely well and truly recorded in the history of New Zealand. Why is it then that at this point in time because of an oversight in the Resource Management Act—it was not a deliberate misleading of Parliament or of the people of New Zealand—we are here today in urgency debating what the chair of the select committee himself says is a very minor technical amendment when really it is just an amendment to the Resource Management Act to prohibit Maori from having what they always thought they had? Why are we doing that? Perhaps the Minister or any other Government member could take a call and clear this up. Why was there not just a simple amendment to the Resource Management Act to stop that from happening? 
PETER BROWN (Deputy Leader—NZ First) 
: 
 I will endeavour to help out the member who has just resumed his seat Shane Ardern because he has asked a number of questions that I thought would be self-explanatory. If he looks at clause 11 “Public foreshore and seabed vested in the Crown” it will tell him if he is not already aware that the vast majority of New Zealanders—I would say almost 99.9 percent; obviously there will be one exception—want the foreshore and seabed to be in public Crown ownership. [ 
Interruption 
] The member is contesting that but I can tell the Committee that if one goes out and talks to New Zealanders they say they want the seabed and foreshore in Crown ownership. This bill delivers that and that makes common sense to most New Zealanders who are supportive of that position.  
Part 2 determines the rights of access. I ask honourable members whether they disagree with the right to be on the public foreshore and seabed and the right to enter remain in and leave the public foreshore and seabed; the right to pass and re-pass in on over and across the public foreshore and seabed; the right to engage in recreational activities in or on the public foreshore and seabed; and that every natural person has access rights in over or across the public foreshore and seabed. That is what this bill is endeavouring to deliver and will deliver by the time it is passed through the House under urgency.  
It is regrettable that the select committee could not find the time to overcome the difficulties and report the bill back.  
Hon Ken Shirley 
: The member obviously wasn’t there. 
PETER BROWN 
: I was not on the select committee— 
Hon Ken Shirley 
: You don’t know what you are talking about. 
PETER BROWN 
: I know what I am talking about. I think the select committee members should have got their heads around this bill in a far better way than they did. I am well informed on this bill. I have to compliment my colleague Dail Jones who has done an awful lot to put common sense into it. On top of that Dail Jones has done an awful lot to appraise his colleagues of the concerns related to it. Maybe I should use the word “awesome” as that is the modern language. I personally compliment my colleague.  
I have to dwell on clause 7A “Existing fishing rights preserved” because at least one member is confused. It means that any individual can go along and fish to his or her heart’s content.  
Tariana Turia 
: Can’t they do that now? What’s changed? 
PETER BROWN 
: Exactly! What has changed? So why are members standing up and saying that this will not occur? This protects it in legislation. This bill also outlines the rights of navigation over the seabed—[ 
Interruption 
] My colleague asked about navigation. How ridiculous would it be if we had a ship that could not navigate over a piece of— 
Hon Dr Michael Cullen 
: Seabed—not foreshore. 
PETER BROWN 
: —seabed and water? I do not think any members in this Chamber would claim ownership of the water would they?  
Dail Jones 
: Yes. 
PETER BROWN 
: They might yes. Effectively one could not claim ownership of the water because it is ever-changing. It is logical that ownership cannot be claimed of the land that is beneath the water which is there for the common good. I am surprised that National members have not got their heads around this bill and are not supporting it. I really am. One has only to look— 
Hon Dr Nick Smith 
: We only got it yesterday. 
PETER BROWN 
: The member is indicating that he needs a little bit more time and then he would support it. Am I taking that from the member’s words? 
Hon Dr Nick Smith 
: Answer our questions. 
PETER BROWN 
: I think he is getting umpteen answers. I suggest to honourable members that they go and read this bill and get their heads around it. I can tell them that it sits very comfortably with some of the statements that they have been making about Crown ownership of the seabed and foreshore. 
Hon Dr Nick Smith 
: It’s a parliamentary outrage. 
PETER BROWN 
: The member says that it is a parliamentary outrage. I suggest that he reads this a little bit more thoroughly than he has done thus far.  
Gerry Brownlee 
: We only got it yesterday. 
PETER BROWN 
: I can only conclude that we have some part-time MPs sitting alongside us on the National Party benches. 
METIRIA TUREI (Green) 
: 
 The Green Party also has a number of amendments to Part 2. One amendment is to alter clause 12 and like United Future to put in place an entrenchment clause. We will be supporting United Future’s amendment and hope that if that fails United Future will support our amendment. However our amendment has a significant difference in that it excludes any agreements or special legislation for the transfer of title for treaty settlements. The whole point of this bill has been to completely reconfigure the way that customary rights and potential title in the spectrum of title are available to Maori. Treaty settlements may be appropriate in this area and therefore we have an exclusion in our entrenchment clause for that.  
Another of our amendments is to clause 28. Clause 28 has been changed by Supplementary Order Paper 304. The changes that have been negotiated to that clause—we understand by New Zealand First—have meant that the territorial customary rights for Maori will be virtually impossible to get. The changes have significantly confined the criteria that Maori will have to meet in order to get a territorial customary right. There are two criteria that render this clause effectively useless. The first is that the exclusive use and occupation has to have happened substantially without interruption between 1840 and now. It would be almost impossible to show that those uses and occupations have occurred to the exclusion of all others.  
If everyone in the whole country has been working on the basis that they can go anywhere anytime they want then it will have been impossible for anyone to have kept people from general access to those areas of land. Yet Maori have to prove that not only have they continued to use and occupy that same area for the same purposes since 1840 but that they have been able to exclude others from it. It is an extremely high test. There is no justification for that and it will be virtually impossible to prove. So it is making it very very difficult for Maori to get through that particular hurdle.  
Then of course that same little subclause restricts the activity to what was happening in 1840. The select committee heard evidence from iwi and hapu who talked about the kinds of sharing manaaki processes that have happened over time where coastal iwi would grant certain rights to inland iwi for the purposes of customary activity on the foreshore and seabed. If under tikanga Maori those processes have happened since 1840 then the people who have those customary Maori tikanga rights will not be able to exercise them because New Zealand First wants to keep Maori static as they were in 1840. New Zealand First and its Maori MPs want to keep Maori as savages—as natives—in their own land. Tikanga Maori is entitled to as much development and progression as any other culture in this country. New Zealand First is keeping us from being able to develop our customary rights to develop our tikanga Maori to engage in the customary tikanga processes that we have been engaging in since mai rano yet it continues to keep us down. New Zealand First wants us still in grass skirts and in the museum.  
If the concern is to make sure that those customary rights are legitimate there are other ways of making sure. Maori do not need to be continually confined to the existence we had in 1840. What is the point? We are continually told that we have to be modern people in this new technological age. We are doing that all the time. We are meeting those expectations. We are managing ourselves in those ways. We are achieving and excelling in the modern world yet New Zealand First and the Labour Government want to keep us static and stuck in 1840. This clause is an absolute disgrace. It is fundamentally racist. New Zealand First and the Labour Government are complicit in keeping us stuck in 1840. The Green Party will ask for the removal of that clause. 
Hon MARGARET WILSON (Attorney-General) 
: 
 I rise to address the point raised by the previous speaker from the Greens relating to proposed new clause 28 and territorial customary rights. Her presentation of the issue expressed a common fundamental misunderstanding about what issue this bill addresses. The bill in fact addresses the issue that was before the Court of Appeal: the nature of common law customary rights. The basis on which the Ngati Apa people brought their application to the Court of Appeal was common law customary rights. The Court of Appeal addressed those common law customary rights not treaty rights.  
The difficulty has been that most people do not understand the nature of common law customary rights. That is why the Court of Appeal said that it felt that in the circumstances of New Zealand—even though it called into question whether the foreshore and seabed had been vested in the Crown and therefore quite legitimately there was a right to pursue whether the common law customary title still prevailed—there would be few cases where under the common law test there would be proof that customary title still prevailed. In most instances under that test it had been extinguished by events since 1840. The way in which those issues of extinguishment have been dealt with in this country—if they were not done in the correct way of redress—has been through the Treaty of Waitangi. That is why the 1840 date becomes of such significance.  
I perfectly accept that sovereigntists on all sides of the argument wish that we did not have the Treaty of Waitangi because their argument would then prevail. But the fact and reality with which we deal is that we do have the Treaty of Waitangi and this issue cannot be considered without putting it into the context of the treaty. 
Dr Lynda Scott 
: Why not? 
Hon MARGARET WILSON 
: Because the common law customary rights have been addressed by the Treaty of Waitangi. Where they have not been addressed by the Treaty of Waitangi then the common law test prevails. It is a misunderstanding as to what the common law test for customary title is that has been an obscuring factor throughout this entire debate.  
 For those who have bothered to read new clause 28—and I say as an aside to those who think there is no explanatory note that there is and members should read it if they cannot be bothered to read the whole provision—the important point to note is that the definition of the criteria to establish a territorial customary right is founded in the common law jurisprudence. The clause reflects an analysis of both the Canadian and Australian jurisprudence and also takes into account the local context since the 1840 date. If we look through the provisions relating to exclusive use and occupation we see that they are the essence of the common law test. The fact that we have contiguity is an essence of a common law test. It has been if one likes widened and broadened through the inclusion of words like “significant” which means that the contiguous area does not have to be made up of exactly the same amount of land. We have tried to take account of the local circumstances so that we get a law that can work.  
The people who bring claims under this provision will know precisely what the criteria are and what factors they have to address to be able to go to court to get an order that a territorial customary right exists. Once that order is made—if it is—on the facts set out in the claim then the provisions provide for redress. I know that members will discuss that redress in the debate on another part.  
Hon Dr NICK SMITH (National—Nelson) 
: 
 That was an extraordinary contribution from Margaret Wilson a person who used to give law lectures about unbridled power—[ 
Interruption 
] Old Winston Peters here changes his tune to suit himself. He gets to his feet and cries constitutional outrage when it suits him but suddenly he is in the club. He is in bed with Margaret Wilson trying to push this legislation on to New Zealanders without any sort of proper public process.  
I refer in particular to proposed new clause 7A which shows how this Government talks with a forked tongue. On the one hand— 
The CHAIRPERSON (Ann Hartley) 
: I ask the member to please be seated. We had a ruling on that this morning. “The Government” and “a member” mean the same thing. I ask the member not to use that phrase. 
Hon Dr NICK SMITH 
: I wish to say that there are two different songs being sung. The Maori caucus is telling its constituency not to worry because 10 percent of New Zealand’s coastline will be set up in special foreshore and seabed reserves. That is what it is saying. That means that the control of 2000 kilometres will be transferred from democratically elected local and regional councils to iwi. Iwi will be running it. On the other hand others are saying that it will be so difficult to get a foreshore and seabed reserve through the legal tests that Local Government New Zealand and other New Zealanders should not worry because there will be a negligible number of reserves. Which view is correct? 
Hon Dover Samuels 
: So what? 
Hon Dr NICK SMITH 
: I ask Dover Samuels whether he has been given a reassurance that 10 percent of the coastline will be in foreshore and seabed reserves. Could some other Labour member tell me whether what is on the front page of the  
New Zealand Herald 
 which states that 10 percent of the coast will be in foreshore and seabed reserves is correct? Is what Labour’s Maori caucus saying correct? 
Hon Dr Michael Cullen 
: They did not say that. 
Hon Dr NICK SMITH 
: Let us read it then. It states: “The Maori caucus believes …” that the foreshore and seabed reserves “… could yet cover more than 10 percent of the coastline.” Is that what New Zealand First members understand? There is silence. They do not know. We are under urgency being asked to introduce a completely new concept—foreshore and seabed reserves—and we have been told by the Maori caucus that they will make up 10 percent of our coastline. That is hugely significant.  
Hon David Benson-Pope 
: The member has been drinking that V stuff again. 
Hon Dr NICK SMITH 
: Can Mr Benson-Pope answer me? Can he simply answer the question? Will those areas make up 10 percent?  
Hon David Benson-Pope 
: Calm down. 
Hon Dr NICK SMITH 
: He simply will not answer the question. He wants to make all sorts of personal accusations and irrelevancies but he is not prepared to debate the bill. The Labour Party is delivering a con job. It is telling Maori one thing and the rest of New Zealand something different. That will not do. I will give a very practical example. This bill states that somehow fishing rights will not be affected. Let me give members a practical example. In my area Nelson Maori who claim ownership of the Wakapuaka estuary have erected a gate. That is perfectly possible under these new provisions for foreshore and seabed reserves. It is quite possible. 
Rt Hon Winston Peters 
: Under the water? 
Hon Dr NICK SMITH 
: The member here is chipping in. He would not know. As a consequence of stopping people from being able to launch their boats at that site those Maori effectively stop fishing rights.  
Rt Hon Winston Peters 
: So it’s on land? 
Hon Dr NICK SMITH 
: Winston Peters does not know where Wakapuaka is and he does not know about the erection of the gate. The issue has been on TV and is the subject of a petition. If the member cannot sort that out I cannot solve his problems. The fact is that if one can erect a gate and stop people from launching their boats that will control their fishing rights.  
So this new clause 7A which states that nothing in this legislation will affect people’s recreational fishing rights is not worth the paper it is written on. Of course people will be able to erect gates control who gets the key and indirectly control the fishery.  
Government Member 
: That’s not correct. 
Hon Dr NICK SMITH 
: Why is that not correct? Members opposite cannot explain because they are wrong. 
Rt Hon WINSTON PETERS (Leader—NZ First) 
: 
 What a sad mindless leaderless rabble the National Party has become. Right there we heard Nick Smith and the National Party supporting the “Freedom to Roam Bill”. One can walk on anybody’s land— 
Hon Dr Nick Smith 
: Foreshore! 
Rt Hon WINSTON PETERS 
: No that gate is not underwater. That gate is on riparian land. [ 
Interruption 
] I ask him to sit down. Madam Chairperson he cannot do that. Can I start again? I started and the member stood there and shouted at me.  
The CHAIRPERSON (Ann Hartley) 
: Carry on. 
Rt Hon WINSTON PETERS 
: What a mindless leaderless rabble the National Party has become. Nick Smith got up. He would not tell us whether the gate was underwater. 
Hon Dr Nick Smith 
: It’s on the foreshore. 
Rt Hon WINSTON PETERS 
: Oh it is on the foreshore. No it is not. It is on riparian land; it is not part of this bill. I tell members not to trust the National Party when it comes to land. 
Gerry Brownlee 
: I think the speech is ridiculous but my point is that we are not able to stand up in the Chamber and say that a member is lying. That would be unparliamentary and out of order. How can it be in order for a member to so distort the contents of this bill to make his points?  
The CHAIRPERSON (Ann Hartley) 
: The member will be seated. 
Gerry Brownlee 
: Mr Peters knows full well that the foreshore goes to the mean high-tide mark— 
The CHAIRPERSON (Ann Hartley) 
: The member will be seated. 
Gerry Brownlee 
:—and there are months in the year when it is dry land.  
The CHAIRPERSON (Ann Hartley) 
: The member will be seated. 
Gerry Brownlee 
: There are thousands of kilometres on the foreshore and if he has not worked that out he should get out of the Chamber and read the bill he is supporting.  
The CHAIRPERSON (Ann Hartley) 
: The member will now leave the Chamber. He was told to sit down three times. He will leave the Chamber now. He was ordered to resume his seat. I was ruling on that. 
Gerry Brownlee withdrew from the Chamber. 
Simon Power 
: I raise a point of order Madam Chairperson. We find ourselves in a difficult position at this point for this reason: during the course of Mr Brownlee’s point of order—and I am not disputing your ruling—prior to you asking the member to resume his seat Mr Brownlee was met with a number of comments from New Zealand First members. You have ruled on several occasions since the Committee stage commenced that points of order are to be heard in silence. When Mr Brownlee was interjected upon during his point of order he retaliated in sort. He has now been asked to leave the Chamber. We do not dispute that ruling but we now find ourselves in difficulty as to what members who take points of order are to do in future if they are interjected upon by other members of Parliament contrary to your initial ruling. I seek your advice on that matter. 
Dail Jones 
: Madam Chairperson I have raised this issue before and it is appropriate to this case. The last time the Rt Hon Winston Peters was speaking just before 1 o’clock he was interrupted five times by National and ACT members. This time he got up to take a call and had barely started when he was interjected upon by a member Nick Smith who was at the Table. He had barely continued his speech when Gerry Brownlee interrupted him.  
Madam Chairperson Gerry Brownlee was on at least his fourth card from you today when he was finally sent out. He should not be allowed to vote on this legislation if this sort of thing continues. I ask you to get the National Party under control. They are leaderless in this House they are clearly a rabble and they should not be allowed to continue in this way. That is why we have disorder—[ 
Interruption 
] The member Ken Shirley is interjecting on me as I am speaking on a point of order. 
The CHAIRPERSON (Ann Hartley) 
: I warn members again about speaking during points of order. Mr Brownlee was warned several times to sit down. He never raised a point of order. He was being brought to order by the Chair. It was nothing to do with a point of order; that is why he was sent from the Chamber.  
I will also rule on Mr Jones’ contribution. I warn all members about interrupting members’ speeches with points of order that are not points of order. That was a debatable point. I warn members again about that. Dail Jones is quite correct in his point of order—that has happened throughout this debate. 
Hon Dr NICK SMITH (National—Nelson) 
: 
 I move  
That the Speaker be recalled. 
A party vote was called for on the question  
That the Speaker be recalled 
. 
Ayes 107 
New Zealand Labour 51; New Zealand National 27; Green Party 9; ACT New Zealand 8; United Future 8; Progressive 2; Maori Party 1; Independent: Awatere Huata. 
Noes 13 
New Zealand First 13. 
Motion agreed to and House resumed. 
Speaker Recalled 
The CHAIRPERSON (Ann Hartley) 
: Mr Speaker you have been recalled to rule on a matter regarding points of order and the Chairpersonship. I sent Mr Brownlee from the Chamber because of his continual disobedience of the Chair’s ruling. He had been asked to sit down several times. He raised a point of order that was not a point of order. He interrupted a member’s speech with a point of order that again was not a point of order and he continued to disobey my instruction to be seated. 
Hon Dr NICK SMITH (National—Nelson) 
: 
 The debate in respect of the bill has been contentious. The deputy leader of the National Party Gerry Brownlee raised a point of order. During the course of his point of order there was a whole series of quite loud interjections on which no action was taken. When Mr Brownlee eventually saw that the Chair was standing he resumed his seat. It seems to me that the action taken by the Chair of the Committee to eject the lead spokesperson for the National Party on a bill that is being considered under urgency is quite an extreme measure.  
I note that the speaker who was interrupted—which gave rise to this incident—was the leader of New Zealand First Winston Peters. I could list at least 10 instances in recent weeks in which Mr Peters himself raised points of order that were no more than political points that interrupted the flow of speeches or questions and you have tolerated those. I think that the judgment to exclude the deputy leader of the National Party our lead spokesperson is excessively harsh in the circumstances and that for that reason he should be allowed to return and continue to participate in this debate. 
Rt Hon WINSTON PETERS (Leader—NZ First) 
: 
 The true facts are these. In my last speech before the lunch break I was interrupted five times. In my latest speech I was interrupted three times in the first 20 seconds—once by Nick Smith who was standing at the Table and shouting a barrage of statements from there. I do not know what they meant but he was doing that and he knows it.  
Then a further point of order came from Mr Brownlee. There was no interruption of his point of order until having been asked—for the longest time that I think I can remember—by the Chair of the Committee to sit down he refused to do so. He just went on and on. The members on that side know it; we all saw it. At that point yes there was interruption from our side but Mr Brownlee invited it upon himself in an outrageous act of contempt towards the Chair. 
DARREN HUGHES (Junior Whip—Labour) 
: 
 Mr Speaker you have been recalled on the motion of Dr Nick Smith. With respect to the Rt Hon Winston Peters I do not think that the Chair took the action because it was Mr Peters speaking. All through the Committee stage on this bill Mr Brownlee has raised points of order—at least half a dozen that I can think of—that were not points of order; they were points of debate. They were not terse points of order either. The Chair had warned Mr Brownlee about that. Mr Brownlee saw that the Chair was on her feet calling for order. He turned his back on the Chair and started addressing New Zealand First members in a way that was clearly going to incite their response.  
The senior Opposition whip accepted the decision of the Chair to eject Mr Brownlee. The senior Opposition whip did say though that New Zealand First members should not have been interjecting on a point of order. That is probably correct. With no explanation to the Committee Dr Smith then took it upon himself to move that you be recalled. The Government supported that as is parliamentary convention but I am at a loss to know exactly what the National Party is opposing given that Mr Brownlee was warned several times. The Chair acted on that and I think the action she took was entirely appropriate. 
SIMON POWER (Senior Whip—National) 
: 
 I rise to add further to the explanation offered by the junior Government whip in respect of the incident currently before us. Mr Brownlee’s reaction to the comments made by New Zealand First interjectors came about from a series of interjections that were from my recollection directed towards Mr Brownlee prior to the Chair ruling on whether he had correctly raised a point of order in the terms laid out in the Standing Orders. It was those interjections that then created an unruly atmosphere in which Mr Brownlee strongly responded.  
Mr Speaker if you are ruling on conduct in the Chamber I would also urge you to make clear to the Committee what is expected when a point of order is initially taken and prior to the point where the Chair has ruled on whether it is a point of order that interjections are not allowed at that point as well. 
Hon RICHARD PREBBLE (ACT) 
: 
 Mr Speaker I think that we all know what your ruling has to be but I want to make the point to you that Mr Peters’ suggestions with regard to Mr Brownlee’s conduct are not fair. It is correct that before the lunch break he had three points of order but two of them were from me and the Chair upheld me both times. I will not go into what Mr Peters was saying but for him to suggest that Mr Brownlee was interrupting his speech is just not correct. Those points of order were raised by me. 
Having said that I do not quite know why you have been called back because obviously you have to support the Chair. But I suggest to you—and perhaps through you it will go back to the Chair—that it would be most unfortunate to have a debate on a major matter when the deputy leader of the National Party who has been the Opposition’s senior spokesperson on this matter and who was on the Fisheries and Other Sea-related Legislation Committee is not in the Chamber. My suggestion to the Chair is that perhaps after we have the vote on this part Mr Brownlee might return because without him we cannot hold a proper debate. 
Mr SPEAKER 
: I thank the member for his contribution nearly all of which I agree with absolutely except for the last point. Members make their own decisions on what they do and they have to live by the results of them. I was listening to the incident and I thought that the Chairperson was incredibly generous in allowing the member to continue four or five times when he would not sit down when she was on her feet.  
Members cannot challenge the Chair. It is a frivolous use of the right to move to recall the Speaker unless there is a genuine matter of order on which the Speaker can rule. Members cannot criticise the Chair. They can ask the Speaker to review an interpretation of the Standing Orders—that is what this procedure is all about. The Chair is the sole judge on matters of keeping order and the Speaker will not review such a decision. As far I am concerned I abhor the thought that when a presiding officer is ruling anybody else is interjecting. I heard it quite clearly. It was for that reason that the member was asked to leave and it was a decision that I absolutely uphold. I declare the House in Committee. 
In Committee 
Debate resumed. 
Part 2 Public foreshore and seabed  ( 
continued 
)  
Rt Hon WINSTON PETERS (Leader—NZ First) 
: 
 Can I start again? That is the fourth interruption. [ 
Interruption 
] 
Hon Dr Nick Smith 
: I raise a point of order Madam Chairperson. I just heard an interjection made by Mr Paul Swain in which he referred to the deputy leader of the National Party by using a totally unparliamentary phrase. I ask that he be asked to withdraw it. [ 
Interruption 
] Whoever it was directed at it was totally unparliamentary. 
The CHAIRPERSON (Ann Hartley) 
: The member will stand withdraw and apologise. 
Hon Paul Swain 
: I withdraw and apologise. 
Rt Hon WINSTON PETERS 
: Can I start again? 
Hon Bill English 
: I raise a point of order Madam Chairperson. This is with no reference to the member who wants to speak. Two things have happened at once. One was the use of unparliamentary language by Mr Swain and I presume your request for a withdrawal and an apology was for that. The other thing that occurred was that Mr Swain continued to talk while you were on your feet and dealing with the point of order. That is the matter that the Speaker has just backed up your previous ruling on and I suggest that you deal with that situation as well. 
The CHAIRPERSON (Ann Hartley) 
: The member has withdrawn and apologised. I would say to all members that during the time that I am speaking there must be silence. 
Rt Hon WINSTON PETERS 
: Can I start again? 
The CHAIRPERSON (Ann Hartley) 
: Yes. 
Rt Hon WINSTON PETERS 
: As I was saying before I was so rudely interrupted never has the National Party been such a mindless— 
Hon Ken Shirley 
: I raise a point of order Madam Chairperson. This is a procedural matter. When you said the member could start again does that mean he can start his content from the beginning or does the clock start again? 
The CHAIRPERSON (Ann Hartley) 
: It is at the Chairperson’s discretion to rule on that. I have ruled that the member will start again. 
Rt Hon WINSTON PETERS 
: After six interruptions I want to say that the National Party is a mindless leaderless rabble—and that demonstrates it. A famous American jurist said that it was an offence to cry fire in the theatre when there was no fire. Today and yesterday the National Party has been making all sorts of allegations and not one of them is remotely correct. Nick Smith of all people puts up a gate that is apparently underwater and it stops people from gaining access to the water. That is really appalling.  
I say to the Greens that for the first 6 years they were here in Parliament they had no Maori member. That is how much they thought of the Maori people and what occurs to me is that they still have not got one. Up got that member and she said that she wants to add an entrenchment clause to clause 12 “Public foreshore and seabed not to be alienated”—the non-alienation clause. That is illusory. It is a mirage and it is hallucinatory. It is ersatz law. It is Clayton’s legislation. It is placebo politics—that is what it is. It is the kind of thing that one has when one does not have anything. The Green member wants to have an entrenchment clause so she proposed an entrenchment clause to make it two-thirds or three-quarters of Parliament. Everybody will feel very safe will they not? All of Maoridom and all of New Zealand will feel very safe. She said that the area would not be able to be alienated if there was an entrenchment clause—except that any fool knows that one first of all attacks the entrenchment clause with a bare majority of Parliament which is 50 percent plus one. Out it goes and there goes one’s protection—it is all over in the space of an hour. That is the kind of assurance that she gives to Maori—those who are on the dope of course; the ones who are not working. But the Maori who think and work and who have slaved in this country for a long time will not be fooled by that. It is of no comfort to them whatsoever to argue for an entrenchment clause and I am ashamed to think that a lawyer would put it up as a proposal. 
Hon David Benson-Pope 
: Didn’t go to Otago. 
Rt Hon WINSTON PETERS 
: No I think she was at Waikato University. I could not help but comment when I saw the protest during the speech of the Hon Margaret Wilson that another European was flying a flag up there in protest in support of Maori. It is a sort of modern style of the white man’s burden in 2004. The sign that the protestor had stated: “Another colonial land grab.” So sea is now land and land is sea—members should try sailing on that! This country needs to be given better than that. It does not need to have stupid people out there misleading Maoridom or for that matter the rest of the country. The National Party is on one side scaremongering and making all sorts of allegations not one of which is true and on the other side are Maori radicals who are making extremist plans not one of which is true either. So where were they at lunchtime? I wanted those two groups of people—the Green Party and the Maori Party and the National Party—to get together because they cannot go on arguing around New Zealand. On the one hand National argues that Maori have everything and on the other hand the Maori Party says that they have nothing. We are bigger than that surely. Surely when we were at the battle of Monte Cassino not one veteran would have ever thought that we were dying for exclusive rights in our own country. That is the reality.  
I am sick and tired of Maori who have a record of selling land in their background coming along to those of us who do not and preaching to us about keeping our whenua and our rights to our property. It is an outrage that those people get away with it because there are journalists who know no better. It can only be out of ignorance that those people get so much coverage—because journalists do not understand their background. Well we are not taking it—not from them. New Zealand First is a party that produced six of 13 members of Parliament not because they are Maori or anything else but because we believe in one law for everyone. We believe in fair representation. We do not just talk about it; we do it—unlike the Green Party which could not find a Maori for 6 years and then found that member. I mean that is the point. Does she stand up for Maori? No. The most grievous thing that is upsetting the Maori people today is drugs and what does the Green Party have to say about drugs? Well the Greens are for them. They are for the legalisation of drugs. 
Hon KEN SHIRLEY (ACT) 
: 
 I will endeavour to bring this debate back to Part 2 which we are intended to be debating. Part 2 which includes clauses 6 to 27 concerns the rights of access. Clause 6 itself provides for a very qualified access and states that: “ ‘access rights’ means—” etc. but then it goes on to state in subclause (3) that: “The access rights conferred by subsection (2) may be exercised subject to any authorised limits including prohibitions on access that are imposed by or under an enactment including a notice in the  
Gazette 
” issued under these provisions.  
So what we have is the illusion of access. Of course that is what the Labour Government has been selling this legislation on. It has been saying that it is all about certainty and access. There is no certainty there is a lot of uncertainty and access is not guaranteed.  
Again the new clause 7A “Existing fishing rights preserved” provides that: “Nothing in this Act affects any rights of fishing recognised immediately before the commencement of this section …”. But as every Kiwi knows it is not just the action of fishing; one has to gain access to one’s fishing spot. If one cannot get on to the beach because a wahi tapu has been declared or one cannot go to a particular rock then one cannot fish. So access is denied and it is quite wrong to imply in clause 7A that all existing fishing rights are preserved because they are not. Under this bill they are not preserved. 
On the front page of this morning’s  
New Zealand Herald 
 the Labour Maori caucus tells us that up to 10 percent of the coastline—and that is just their first bid—will be in those foreshore and seabed reserves with committees of guardians and wardens guarding spiritual beliefs on our foreshore and seabed. Who believes for a moment that ordinary New Zealanders will have unrestricted access to go fishing in their preferred spot under that sort of regime? They will certainly not and 10 percent is just the first bid on day one. 
We then turn to clause 13C which states that all lands reclaimed are to be vested in the Crown. I would like the Minister in the chair to tell us the logic of that. Land is reclaimed for only one purpose and let us be quite clear that there is a very difficult statutory process to go through to get permission to reclaim land. One does not get it just like that. One would have to apply for a resource consent and get all sorts of dispensations. It takes several years and some people take up to 10 years to get consent to do a reclamation. So one runs the gauntlet. Reclamation is done for a specific purpose whether permission is sought for a marina for a port company or for some other legitimate use. But once reclamation has been approved it is land. So why henceforth vest that title in the Crown? What is the point of that? There is just no sense in it at all.  
Equally I would like to see our port companies with their own clear title. They are commercial businesses. As a trading nation they are the access to our nation for our imports and also the exit point for our exports. We want good commercial businesses running our ports. We do not want them run by the Department of Conservation but that is really what this bill is proposing. Of course the Greens were arguing that we should have free access round our ports. What a load of nonsense! We would be in breach of international covenants following 9/11 where we must specifically exclude free access and fence our ports so that we can guarantee the security of our containers.  
So there are very good commercial reasons why we need clear title clear property rights and to be able to exclude access in the foreshore and seabed for specific areas. But no this legislation states that it will all be vested in the Crown and that the Department of Conservation can look after that. What absolute nonsense! So it is not just Maori rights that have been trampled here. There are other clear commercial property rights that are being denied and stripped away.  
I would also like the Minister in the chair to explain the bit about accretion because it is not clear what the intention is there.  
JOHN CARTER (National—Northland) 
: 
 I want the Committee to reflect on this. The Minister in charge of the bill Michael Cullen has said that this is a very simple issue. He said that members should read clause 11(1) and he quoted part of it which provides that: “the full legal and beneficial ownership of the public foreshore and seabed is vested in the Crown …”. The Minister said: “It’s as simple as that folks. That’s what we are doing here today.” Winston Peters then got on to his feet and said: “We have saved the country. We have brought everybody together and what we have done is we have vested the foreshore and seabed in the Crown.”  
Well I ask Parliament and the people who are listening to this debate today to reflect on this: if it is that simple and takes just those few words then why are we dealing with a bill that was initially 69 pages another 67 pages of a Supplementary Order Paper another eight pages of another Supplementary Order Paper some notes that go for 138 pages and then also some explanatory notes that take up a further 59 pages? Why does it take that much paper that many words that many clauses and that many issues in order to vest the foreshore and seabed in the people? If it were just that simple I would have thought it would be only one clause.  
The problem we have is that again this Parliament is doing to itself and the country what it never should have done. It has written a whole lot of legal jargon to put in place something that is simple but will become so complicated that we will spend years and years unravelling what this Government the Labour Party and New Zealand First are doing to this country today. I say to the people to look at this legislation and at all the clauses in this bill and worry about how complicated it is. The bill is seriously complicated and divisive.  
It is not just a simple vesting of the foreshore and seabed in the people. If it were only that we certainly would not be here today opposing this bill. It is all the add-ons and the hidden stuff in the Supplementary Order Papers—the 67 pages of add-ons that have come back from the Fisheries and Other Sea-related Legislation Committee—that the Labour Party Winston Peters and New Zealand First are foisting on this country that we need to be worried about today. They have created such a complicated law around such a simple issue that we will be fighting this all over the place—in the courts out in the public in the pubs and on the beaches—for years to come.  
Let me say this to my colleague from the north Dover Samuels. He knows—as I do—that there are already some people up in the north who want to exclude people from the beaches. Already we have seen it happen and I bet members and wager that this summer there will be more instances where non-Maori people are excluded from the beaches because— 
Dr Wayne Mapp 
: Karikari. 
JOHN CARTER 
: At Karikari Peninsula it is happening right now. White people—non-Maori people—cannot drive up to Karikari Peninsula. They are excluded from it. It is a public beach and they are not able to go on it. They are shunted off bullied off and railroaded off. Believe me that will happen more and more as this issue starts getting debated over Christmas and as Maori people’s expectations start getting more and more heightened. When they look at this bill they know that the Government is giving them something extra over and above non-Maori.  
 I say to the public to the Labour Party particularly and to Winston Peters and his caucus that they should not be doing this to New Zealand. It is wrong. I know a number of the New Zealand First members will have genuinely tried to get it right. I accept that. Unfortunately they have missed the bus they will cause strife across the country and they will cause us to have issues whereby non-Maori people will be excluded from their luxuries. 
Hon DOVER SAMUELS (Minister of State) 
: 
 I heard my name mentioned by my colleague John Carter in terms of some of his concerns that perhaps somebody foolishly would seek to block access to the beaches when in fact public access is provided for. He knows very well that if there is public access to the beach anybody who blocks that access breaks the law and could be in the case of Northland one of the first invitees to the Ngawha prison. Let me make it quite clear. This bill provides for public access for all New Zealanders Maori Pakeha or whoever to go down to the beach at Christmas time with their families and do the things they have been doing for the last 140 years. That member knows that if there is public access then any clown—and I have a few of them up there in Northland—who wants to block public access to the beach will be removed by the police as they should be. I warn them of that. My colleague John Carter used to be the clerk of the Hokianga County Council and we go back a long way in terms of by-laws. We know that if anybody blocks access along a public road it will be pokarekare ana for them. 
I want to bring up a couple of things. Ken Shirley talked about 10 percent. I am glad he knows his figures. I say to Mr Shirley that determination of territorial customary rights will be done by the High Court. The High Court will determine whether a Maori whanau or hapu is entitled to an aboriginal title that may reflect territorial customary rights and the negotiations that go on from there are spelt out in terms of the redress in the bill. It is not for anyone to say whether they will get 10 percent five percent or two percent.  
Hon Dr Nick Smith 
: What do you say about this in the newspapers? 
Hon DOVER SAMUELS 
: Perhaps the member should read the births and deaths column instead of reading the front page. He might understand a little bit more. There is a births and deaths column on the back page of the  
New Zealand Herald 
. He should read that and he will find out a little bit more; he will be educated. 
Members of the National Party who have been defrosted on coming out of the mortuary always froth a bit at the mouth when it comes to things to do with Maori especially when it is to do with recognition of Maori customary rights. All of a sudden their gums begin to froth up. Some people begin to defrost and some do not; some are probably there forever. 
When one is talking about Maori customary rights one is actually recognising a covenant—something that has been recognised right around the country. Members are jumping up and down and I hear members of the Green Party complaining about thresholds and benchmarks in terms of being able to obtain a customary rights order. I tell them that the issue is one that relates to whanau and hapu who have had a traditional and customary relationship with the foreshore and seabed for a long long time. It does not relate to Maori who have been sleeping under the marijuana plants and smoking a bit of hooch and who do not know what they are talking about.  
Metiria Turei 
: I raise a point of order Mr Chairperson— 
Hon DOVER SAMUELS 
: I am not referring to anybody in this Chamber. 
Metiria Turei 
: I take personal offence to the reference about people sleeping under marijuana trees which was a reference to the Greens. I ask that the member be required to withdraw and apologise for that unnecessary and very derogatory slur both against us and against those who may be homeless and sleeping under trees. It shows his clear disregard for the people of this country. 
The CHAIRPERSON (Hon Clem Simich) 
: I thank the member for raising that. I did not take it that that was a reference to anyone in the Chamber or to any group in the Chamber. 
Hon DOVER SAMUELS 
: I can assure the member that if I had referred to the Greens it would have been clear. I was not referring to the Greens. If they have a conscience about that it is their problem. 
Those who live beside the sea have a genuine right of application to the Maori Land Court and the High Court to have their territorial customary rights recognised. Someone living in Australia who has become Ngati Ranana—“Ngati Australian”—has no right at all. They have no basis for rights. I make that point loud and clear. Those rights are not de facto territorial customary rights. There are people who are genuine the whanau and the hapu who have held those customary rights mai ra ano. They have to be given opportunities under this legislation—and the opportunities are there. 
The legislation gives access and that is not only to the Maori Land Court. I hear some of these bush lawyers saying that there is no judicial process open to Maori. What is the Maori Land Court? That is part of the judicial process. Genuine people have to be given access not just to the Maori Land Court but also to the High Court. They also have that avenue for obtaining territorial customary rights. 
I say again to those who think they can go along with a bus ticket and get a territorial customary rights order to forget it. People have to be genuine; they have to have ties to the land. There are benchmarks and thresholds they have to prove and if they prove them they will get their territorial customary rights. 
Hon GEORGINA TE HEUHEU (National) 
: 
 This debate is on Part 2—which is something we may or may not know from the rhetoric coming from on the other side of the Chamber—and it deals with rights of access. First I will comment on something that Russell Fairbrother said earlier in the day. He said that everybody believed that the foreshore and seabed was vested in the Crown. I do not know whether a significant number of Maori would support him on that contention because their reaction to the Government’s response to the Court of Appeal decision suggests they had always thought otherwise. However as I have said this part deals with rights of access and it is the part in which the minority Labour Government and New Zealand First are trying to convince New Zealanders that their rights to our beaches are confirmed now and into the future. I ask the Hon Dover Samuels whether that will apply to the beach up at Matauri Bay and the Rt Hon Winston Peters whether it also applies to his beach at Whananaki. Perhaps those members will give their answer in their contributions further along the way.  
As I said yesterday the Government cannot have this both ways. It cannot on the one hand say to Maori people that they should not worry and that their mana is protected then on the other hand say to all other New Zealanders that their access to beaches will be free and unimpeded. That cannot hold. That is not a sustainable proposition. If it is then I would like Mr Peters to explain—because I do not think the Minister in the chair the Hon Paul Swain will tell me—how that position or postulation can be sustained. I do not see how it can be. As further evidence of that— 
Rt Hon Winston Peters 
: What about Lake Taupo? 
Hon GEORGINA TE HEUHEU 
: Everybody can go to the beach. The bed is vested in Tuwharetoa but everybody has access to the beach. There is no problem whatsoever. But we are not talking about Taupo we are talking about Whananaki and Matauri Bay.  
However I do have a question that revolves round the assurance that the access that the Government and New Zealand First are trying to give New Zealanders will be unimpeded. I ask how that lines up with new clause 115A set out on Supplementary Order Paper 302—a clause that I think could equally be called the “Tainui clause”. It states: “(1) To avoid doubt nothing in this Act (a) limits or otherwise affects the validity of an agreement entered into between the Crown and a claimant group to settle an historical Treaty of Waitangi claim; or (b) fetters the ability of the Crown to enter into any agreement with a claimant group in the future to settle an historical Treaty of Waitangi claim.”  
In new clause 2A “Object” the Government is saying to New Zealanders that they should not worry and everything will be OK mate. Clause 6 states something similar and new clause 12 states: “(1) Despite any enactment to the contrary no part of the public foreshore and seabed may be alienated or otherwise disposed of.” What do those provisions mean in the context of new clause 115A? On the face of it it looks from this clause as though there are instances where the foreshore and seabed will be disposed of and will be disposed of in this instance in pursuance of the settlement of claims. That in itself may be OK but it shows the cynicism of this Government and of New Zealand First when they say: “Everything will be OK mate.” What is it Mr Peters says? “We fixed it.”? Is that what he says? Well actually it has not been fixed. When the Court of Appeal decision came out the public reaction was that it expects the foreshore and the seabed to be vested in the Crown. 
NANAIA MAHUTA (Labour—Tainui) 
: 
 All I can say to the member preceding me is that she should read the fine print. If she goes on to read clause 6 “Right of access” she will see the specified limits in new subclauses (3) and (4). She has raised a whole lot of issues about hidden secret access agreements. The limits are not secret. They are upfront in those subclauses. If she reads the clause she will see that access is granted to all New Zealanders to be able to go to the beaches. However the fine print in the subclauses sets out justified limitations in terms of that access. So it is no secret. It is right there in the bill. Clauses 6 and 7 are really the points of agreement that all New Zealanders Maori and Pakeha came to: that we should all have access to our beaches and that navigational rights should be protected. That is what clauses 6 and 7 are about.  
One of the members spoke earlier about new clause 7A “Existing fishing rights preserved”. The point about new clause 7A is that it makes it absolutely clear that all the issues concerning fish under other bits of legislation still stand. Nothing in this bill affects that.  
The substantial part of my small contribution on this part relates to clause 11—and the point was made by John Carter under subclause (1). Clause 11 is the clause that for many submitters provided a bit of tension. It is worth reading out: “On and from the commencement of this Act the full legal and beneficial ownership of the public foreshore and seabed is vested in the Crown so that the public foreshore and seabed is held by the Crown as its absolute property.” The submissions contain views that this should not be the case. However again—I made the point earlier in the debate——the natural extension of that argument is that the Crown would not be able to uphold any fiduciary obligation to any citizen in New Zealand including Maori. It follows therefore that this is a necessary part.  
This is not the first time Parliament has addressed the issue. In fact in the first reading debate Dail Jones raised the issue that the Foreshore and Seabed Endowment Revesting Act actually attempted to do this but it did not do it properly. He said at the time that no Maori member participated in that debate. I went through the contributions referring also to the submissions on the bill. Notably three Maori groups made a submission on the Foreshore and Seabed Endowment Revesting Bill: the New Zealand Maori Council Awaroa ki Manuka and the Huakina Development Trust. All the submissions from those Maori groups actually agreed with Crown ownership. However they said that then sets up the opportunity for Maori to legitimately argue their treaty claims or treaty issues. There was some reflection in their submissions on the hope that at some point an opportunity would arise whereby the Government would recognise their customary interests in full and see the return perhaps of parts of their tribal domain where they exercised their customary interests. Notably Awaroa ki Manuka and the Huakina Development Trust raised those types of issues.  
So clause 11 is an important clause. It is probably the most lucid part of this bill. We all need to be clear about why there is provision for other parts in recognition of customary rights. Basically subclauses (2) and (3) make it important to ensure that if one is going to have full legal and beneficial ownership in the Crown one must make provision for Maori customary rights. It has long been my view that vesting ownership in the Crown would enable the radical title of the Crown to coexist with a native customary title in accordance with tikanga Maori. That has long been my view. Since this debate has emerged my thinking on that has developed further. This part contains a number of important clauses that affect Maori  
In finishing my small contribution I refer to new clause 12 “Public foreshore and seabed not to be alienated”. I think that is a clear affirmation of the Government’s intent and it is a good part of the legislation. 
METIRIA TUREI (Green) 
: 
 The Greens have proposed two major amendments to Part 2 the first being to clause 12 the entrenchment clause. New Zealand First will not be supporting this clause because it is not that concerned with the potential sale of land—in particular the sale of seabed and foreshore land. One of the criticisms that Winston Peters has made of the entrenchment clause is that it will not have any effect. I say to him that it may be that entrenchment is largely symbolic in the minds of New Zealanders—that it is a symbolic gesture showing that this Parliament takes the restriction on the sale of foreshore land seriously and that it is prepared to use all its mechanisms to make sure that it cannot happen. I have no doubt that we cannot stop a Government in the future from doing whatever it wants but even if at worst it is a symbolic gesture it is critical for New Zealanders to know that this Parliament will not sell-on any of the foreshore and seabed. New Zealand First’s refusal to support this clause clearly demonstrates that it is not prepared to support even a symbolic act that will enable New Zealanders to feel confident that this Parliament including New Zealand First does not want the foreshore and seabed to go into foreign ownership.  
The Greens of course have been very clear to follow their principle with practice. We have petitions in place at this very moment to stop the sale of land to foreign interests because we believe that our land is finite and that it needs to be protected and kept in New Zealand hands for New Zealand people. This entrenchment clause will make that clear to the public of New Zealand. Clearly New Zealand First is simply not prepared to put its money where its mouth is and support the absolutely best possible protection that this Parliament can provide in order to make sure that our foreshore and seabed cannot go into private hands.  
The other major amendment we are proposing is to clause 28. Margaret Wilson said that the contiguous land test in clause 28 is when one can get a territorial customary rights order only if one has ownership of the land that borders the foreshore and seabed as is part of the common law. She knows she is wrong about that. It is not in the common law. Paul McHugh who gave evidence for the Crown at the Waitangi Tribunal said at the Fisheries and Other Sea-related Legislation Committee that it is something the court should take into account and that it is a consideration it will have regard to but that it is not necessary to make it a condition of providing a territorial customary rights order. He never said at all in the select committee that it was part of the common law. He never said it was absolute that one had to own the land bordering the foreshore and seabed before one could make a claim of customary exclusive use and possession over the foreshore and seabed itself.  
This provision is a clear deception. It is not right that it is in this bill; it is absolutely unnecessary. This bill could make the court give consideration to contiguous land ownership. It does not need to make it a condition. Making it a condition means that very few—perhaps two or three—iwi throughout this whole country will be able to get a territorial customary rights order. It will be virtually impossible for iwi whanau and hapu across this country to meet those tests because they are so stringent and unnecessary. It is unbelievable that that clause could have been put forward by Dail Jones who himself has some legal knowledge who heard and understood the submissions from Paul McHugh in the select committee and who recognised that contiguous land ownership might be a factor to take into account but that it certainly should not and did not have to be an absolute.  
There is a whole list of other real problems with the way that clause 28 has been reconstructed after the negotiations between Labour and New Zealand First. The real difficulty is around the proof needed to show that one can exclude others and could exclude others. It was argued in the select committee as well that one did not need proof that one did exclude people but proof that one had the right to exclude. Those are two different things. We live in a colonised land. Maori will find it extremely difficult to show that they have had any control over other people using their land—particularly the foreshore and seabed—over time when the whole of the country has been under the misapprehension that it has been open ground owned by the Crown for so long. 
SANDRA GOUDIE (National—Coromandel) 
: 
 In listening to the debate— 
Larry Baldock 
: I raise a point of order Mr Chairperson. I just respectfully point out that this debate is a bit like watching a ping-pong game with the calls going from one side of the Chamber to the other and back. As a member of the Fisheries and Other Sea-related Legislation Committee—and I also represent our party which is small in number—I do want to make a number of calls on this important part of the bill. I would just ask for your consideration in that. 
The CHAIRPERSON (Hon Clem Simich) 
: I am quite aware of that. Proportionately if I had called the member United Future would have been way ahead of any other party. The member’s time will come. 
Ron Mark 
: I raise a point of order Mr Chairperson. I thought I would take this point of order now so that I would not interrupt the member’s speech. I also respectfully inform you that some members who have been seeking the call have not had the opportunity to speak on this bill at all yet other members have had numerous calls. 
The CHAIRPERSON (Hon Clem Simich) 
: I am quite aware of that. I thank the member for raising it. There will be opportunities to seek the call. Just to put the member in the picture if I had taken his call then I would have needed to give National the next five calls. 
SANDRA GOUDIE 
: I was in my office listening to the debate and I was very interested in the comments raised by the Hon Georgina Te Heuheu my very esteemed colleague. I also raise the points she referred to about access and of course I endorse the comments made by the honourable John Carter. If this was simply a matter of the Crown preserving the right of access of all New Zealanders then why is there so much paper and so many clauses? We have so much to contend with. This legislation is not simple. I find it incredible that the Government with the support of New Zealand First is trying to whitewash the New Zealand public into thinking that this legislation is simple when it certainly is not.  
There is absolutely no way that access is guaranteed through this bill. I ask members to look at new clause 115A and then refer that back to clause 6 “Rights of access”. I recall Nanaia Mahuta saying we should read the fine print. Well have I read the fine print. Clause 6(4) states: “Unless the enactment or other instrument that authorises a limit of the kind described in subsection (3) otherwise provides the limit may be applied—”. So I would strongly recommend that those guys read the fine print. If we relate that to new clause 115A “Status of existing and future agreements between Crown and claimant groups” we find there is every chance that so-called Maori reserve areas in the foreshore and seabed can accrue freehold title and access can be denied. I take great exception to the New Zealand public being misled on that score. That is an absolute tragedy when the New Zealand public relies on this Parliament to have representation. I absolutely abhor that.  
The New Zealand public relies on this Parliament to represent its interests. There is also the Waitangi Tribunal to represent the interests of some other members of the New Zealand public called Maori but New Zealanders generally do not have the opportunity to take their grievances to the Waitangi Tribunal. They are denied that opportunity so where else would they go for the settlement of the grievances that are established? The foreshore and the seabed has been vested in the Crown since the 1890s and that is the understanding that many New Zealanders have had—that that has been their common law right established for over 100 years and that access is part of their common law right to the foreshore and seabed. So who is actually representing their right? I absolutely abhor the way that this Government supported by New Zealand First thinks it represents the rights of all New Zealanders. In my view this bill quite categorically does not do that. If members do refer to clause 6(4) they will see that access can be denied once any other interest for Maori has been established over special reserves made under new clause 115A. The Government needs to look very very closely at that.  
Even with regard to access the precedent given to Maori in legislation is chronically out of control in this country. That is an absolute disgrace to the representation that this Parliament is supposed to provide to the New Zealanders of this great nation. Certainly they are not getting that representation here today from either the Government or New Zealand First. That is a disgrace. I have had family who have been fishing off the beaches and who have been jostled by people who think that they have a greater claim to this country than my family has in spite of the many many generations of our presence here in this country.  
Once again I reiterate that this bill is an absolute disgrace. We are meant to be protecting New Zealanders’ rights in respect of the foreshore and seabed and this legislation in no way does that in spite of all the work and all the claims made by the Government supported by New Zealand First. Then on top of that to add insult to injury after reading the document we have a substantial Supplementary Order Paper tabled that no one had previously seen. 
LARRY BALDOCK (United Future) 
: 
 Thank you Mr Chairperson. I appreciate your understanding. Perhaps I was a little hasty in taking a point of order earlier. However this is an important debate and I am keen to make a contribution on behalf of United Future. In my last call I was making concluding remarks about— 
Rt Hon Winston Peters 
: I raise a point of order Mr Chairperson. I apologise to Larry Baldock for interrupting him but my point is this. Mr Baldock is voting against the legislation and so was the last speaker. On the breakdown of the speaking time that is going this way I point out that one side will get far more time than the other side and that is not fair. I thought the debate went from the pro argument to the anti argument. There are plenty of people on the pro side. We are not short of people to speak for the bill. 
The CHAIRPERSON (Hon Clem Simich) 
: I thank the member for raising that. 
LARRY BALDOCK 
: Speaking to the point of order Mr Chairperson— 
The CHAIRPERSON (Hon Clem Simich) 
: No I do not need any assistance on that. Quite frankly I cannot read people’s minds as to whether they are pro or against this legislation. They may change their minds during the course of this Committee. 
Hon Richard Prebble 
: I raise a point of order Mr Chairperson. I do want to draw your attention to this disturbing fact. Prior to the last call you drew it to our attention that if you had called Mr Baldock that would have meant that the United Future party was getting more calls than any other party. Presumably that is now the situation. I just say—without criticising people who are not here—to those members who are in the Chamber that one can tell the amount of attention the United Future party gives to this matter by the fact that Mr Baldock is the only member of that party who is here. The ACT party has nearly half its membership here in the Chamber. We have a member who has been calling right since this matter started who has an amendment down—she has taken sufficient care about this matter to put an amendment down. Yet Deborah Coddington has been unable to get a call. In fairness to Mr Baldock and in reply to Mr Peters I note the United Future party has voted both for and against this legislation as it has on other matters. We now learn that Mr Baldock even though he is the only representative of the United Future party here in the Chamber has the call. Why should he be entitled to extra calls just because he complained? When you are looking around the Chamber for members who are calling I hope you will bear in mind the fact that Deborah Coddington has put an amendment down has gone for the call and has not had a call. I hope that will be taken into consideration. 
The CHAIRPERSON (Hon Clem Simich) 
: I thank the member for raising that. I will certainly give those matters consideration. 
LARRY BALDOCK 
: We were discussing the issue of entrenchment which is part of the amendment I have on the Table and which has been dismissed by some members of the Committee as being irrelevant or only symbolic. That may be the case in terms of single entrenchment but I ask the Rt Hon Winston Peters to look more seriously at the amendment that provides for double entrenchment which would make it impossible to alter the clause 12 provision by a simple majority. If his party and other members of the Committee supported that a clear signal would be sent and the measure would be more than just symbolic in terms of making it more difficult for future Parliaments to alienate the foreshore and seabed. I appreciated Metiria Turei’s offer to support my amendment if I reciprocated by supporting hers but I am sorry to disappoint her by not being able to do that. One of the reasons we want the entrenchment provision is to ensure there is no opportunity to transfer title of the foreshore and seabed as part of any treaty settlement. We believe that the area ought to remain in the ownership of the Crown for and on behalf of all New Zealanders as we discussed earlier.  
That brings me to clause 15 which gives the Crown the right to “purchase or otherwise acquire the whole or part of a specified freehold interest in any land that is wholly or partly within the foreshore and seabed.” This is something that I believe many New Zealanders are concerned about because we as a country do not take to double standards very easily. Although there has been an intervention by the Government to ensure that there is no future alienation of the foreshore and seabed we all know that there are parcels of land in private title that involve the foreshore of our coastline. I want to read from the Land Information New Zealand report that was given to the Minister for Land Information in December just to put on the record of our debate how many parcels of land are involved and in whose ownership they are. If the report is correct there are 16 parcels in total that are surveyed to below the mean high-water mark. Eleven of those parcels are general land and five parcels are Maori land. There are 32 parcels of seabed in private title that are covered by the sea. Of those 27 parcels are general seabed parcels and five parcels are Maori-owned seabed parcels. There are 12243 parcels surveyed to the mean high-water mark 9403 of which are general land parcels and 2840 Maori land parcels.  
What is important I believe is that the Government is silent about what steps it will take to recover those parts of the foreshore that are in private title. The bill clearly gives it the power to do so but United Future would have been much more encouraged to hear from the Government a strategy it would engage in to recover those titles. We firmly believe that once those titles have been issued they are property rights and there should be no confiscation without compensation. We believe that negotiation needs to be undertaken between the Government and private property owners who now have title that goes into the foreshore. But we would like to know how that would be done so that in the near future New Zealanders can have the satisfaction of knowing that the public foreshore and seabed encompasses the complete coastline of our country and that there is no inconsistency and injustice whereby some people hold a title simply because they got it through erosion in the past because the survey marks were not accurately done in the beginning or because under different legislation 50 to 100 years ago they were able to secure a title that they would not be able to acquire today. That is an issue I would like the Minister to take a call on so that he can give us an understanding of what the Government plans to do—because it is of interest. Many many submitters came before the Fisheries and Other Sea-related Legislation Committee and complained about the inconsistency and the seeming injustice of some people being allowed to own freehold title to the foreshore and seabed while in the future others will be denied that opportunity.  
When it comes to local government holding freehold title the Crown makes it very clear that it will simply take that. I am pleased to see that the Minister’s amendment will now allow not just relief for that but redress. It is acceptable that if a title is in the foreshore area that area would simply become Crown-owned under the legislation because it is the foreshore. But it is unclear to me—and I ask the Minister to explain this to us all—what the case is with regard to reclaimed land that is not yet in title. 
DEBORAH CODDINGTON (ACT) 
: 
 We have come to a pretty pass when territorial customary rights are referred to as “TCRs”. What an insult it is to reduce them to what is not even an acronym. Winston Peters should get his quotes right. The American jurist did not say it was an offence to shout “Fire!” in a crowded theatre; he said that freedom of speech does not mean one can shout “Fire!” in a crowded theatre. 
When we look at new clause 9A we see that this is very much racist legislation. It directs that when customary rights claims are lodged in the High Court the High Court is to take only one of three courses of action—that is kill all the claims. We know that all of those 80 cases are Maori cases.  
I now refer to the Minister’s amendment on Supplementary Order Paper 302 to clause 15 “Extension of public foreshore and seabed by acquisition of land in private title” and say that I have tabled an amendment to this amendment. The Minister’s amendment omits subclause (1) and substitutes a new subclause (1) which states: “The Crown may purchase or otherwise acquire the whole or part of a specified freehold interest in any land that is wholly or partly within the foreshore and seabed.” My amendment adds the words “by agreement” after the word “acquire”.  
As the Minister’s amendment stands at the moment this is simply a land grab. We do not know what it means. No agreement is stated. It means that the Government can go out and just take whatever it likes. It does not state that it would do that under the Public Works Act; it just states “or otherwise acquire”. No mention is made of compensation.  
If we look at the situation we see that this provision has been drawn up by people who have never studied lived or been by the foreshore for any number of years. If they had they would see that the foreshore—the land between the high-water mark and the low-water mark—does change over the years. It goes up and it goes down. Sometimes the change is very dramatic such as in the case of the Napier earthquake. If we look at the Napier airport we see that hectares and hectares of land were created by the sea retreating. Under this legislation that land could be privately owned. But as the legislation is worded at the moment the Government would be able to acquire that land without paying any compensation at all.  
Where I live in the Marlborough Sounds the foreshore area changes considerably not just from decade to decade but from year to year. New land is created not by reclamation but by the shifting of the tides and by the foreshore changing every year. The way the legislation is worded at the moment gives the Government the right to go and just take it away.  
It concerns me that this clause is a sweetener to further land grabs. My colleague the Hon Ken Shirley had a slip of the tongue when he referred to the Department of Conservation as the “Department of Confiscation”. It was more than just a Freudian slip. As I said it concerns me that this clause is a sweetener to a further land grab. First it is the foreshore and seabed. What will be next? Will it be the riverbeds? Will the Government be able to just acquire freehold title of private land without there being any compensation at all? The Minister is shaking his head. Does that mean he will agree to my amendment? Does it mean he will get up and explain what this clause means? The way it is drafted at the moment shows that it is clearly just a land grab and it is a way for the Crown the Government to just go in and take whatever it likes—not just from Maori but from all New Zealanders. All New Zealanders will be disadvantaged by this clause. As I said I would like the Minister to take a call and explain what he means. He is indicating that he might. Is that a yes or is it a no? 
Hon Dr Michael Cullen 
: It’s Delphic. 
DEBORAH CODDINGTON 
: It is Delphic. 
Hon Richard Prebble 
: He doesn’t know himself. 
DEBORAH CODDINGTON 
: Well maybe he will support the amendment I have tabled. 
RON MARK (NZ First) 
: 
 Is this it? It is all over. The debate on the Opposition side of the Chamber has died. If we listen to the arguments from National members now we hear them say they are so concerned about the bill that their biggest objection is that it has too many pages has too many words and is hard to read. That is the truth. The essence of the objection to this bill by Sandra Goudie and John Carter was that the bill has too many words—it is too long—and that they do not understand it. Gerry Brownlee got it right. He was smart. He could see National was going nowhere. How could he argue against Crown ownership? Sandra Goudie said she would vote against the bill because it puts the area into Crown ownership and she has always believed it was in Crown ownership—therefore she will vote against it. Does that make sense? It does not make sense. But no the National members are to vote against this legislation.  
Hon Dr Nick Smith 
: What about these new foreshore reserves? 
RON MARK 
: I will get to Nick Smith in a minute because there is a beauty in two-talk. Sandra Goudie is voting against the bill because it puts the foreshore and seabed in Crown ownership and she has always believed it was in Crown ownership. But now that this legislation puts it there she is voting against it because she had always thought it was there. I am confused; so is she. Gerry Brownlee could see the writing on the wall so he deliberately got himself thrown out of the Chamber.  
I come back to the arguments that were put up. Nick Smith is really good on the access clause. He is the same Nick Smith who was on television over the Christmas period bleating on about Maori locking a gate and stopping people from going across their own land in order to go fishing. Excuse me? It seems to me that the National Party which reveres the philosophy of one law for all wants one law for all—except when Maori get in the way. Nick Smith now wants access across everybody’s private land. But what does David Carter say? He is out there saying that the “freedom to roam” bill is an intrusion on property rights and that farmers like him will not stand for it. I guess that means farmers like him will not stand for it unless those brown fellas get in the way and then they will stand for it. Nick Smith says that every Maori should open the gate on his or her private property to give access across that land to the foreshore. 
Hon Dr Nick Smith 
: On the foreshore! 
RON MARK 
: Mr Smith is very confused and we have all known that for quite some time. 
Hon Dr Nick Smith 
: Point of order— 
RON MARK 
: He always does it. When we hit him he takes a point of order. 
Hon Dr Nick Smith 
: I seek leave to table a document showing the gate on the foreshore at Wakapuaka estuary so that I can solve the member’s confusion. 
The CHAIRPERSON (Hon Clem Simich) 
: The member can seek leave for that but he should not interrupt the member’s speech to do so.  
Rt Hon Winston Peters 
: I raise a point of order Mr Chairperson. This is a disgraceful further interruption by a member who frankly should go away and take a pill. 
The CHAIRPERSON (Hon Clem Simich) 
: We will not have any of that. I have noted it. The member would have been pleased with the way— 
Dr Wayne Mapp 
: Point of order— 
The CHAIRPERSON (Hon Clem Simich) 
: Is this a new point of order Dr Mapp? 
Dr Wayne Mapp 
: Yes it is a new point of order Mr Chairperson. There was an imputation and a reflection in what was said to be a point of order that was completely out of order. Frankly I take offence at that kind of implication about members. It is outrageous that points of order are used as a means of abuse and division.  
The CHAIRPERSON (Hon Clem Simich) 
: It did not pass by me. I thank Dr Mapp. 
Rt Hon Winston Peters 
: I will withdraw and apologise but let me tell the Committee that the National Party did that last night. I warn the National members that if they do that one more time I will nail one of them—not physically; verbally. They have one last chance. They are being too smart.  
Hon Dr Nick Smith 
: Just take another bribe Winston. 
Rt Hon Winston Peters 
: I raise a point of order Mr Chairperson. I will not withdraw this one. The member has just made an allegation. He said: “Just take another bribe Winston.” The member should withdraw and apologise and if he does not do that he should be thrown out of the Chamber.  
Hon Dr Nick Smith 
: The Committee will be aware that in court proceedings between Mr Winston Peters and my colleague Mr Carter on this very issue Winston Peters was cleaned out. He lost and the case was thrown out. I cannot see how the interjection in respect of Mr Simunovich and the allegations of him receiving a large amount of money in an envelope is in any way different from the interjections that Mr Peters has made.  
The CHAIRPERSON (Hon Clem Simich) 
: That is not a point of order. What was the matter that you raised before Mr Peters? 
Rt Hon Winston Peters 
: He accused me of taking a bribe. He has now compounded that by saying that I was cleaned out in court. That of course is not true. My lawyer was invited by the judge to set up a new chain of pleadings. That is the fact and every lawyer knows it—and the member should take a pill.  
The CHAIRPERSON (Hon Clem Simich) 
: You have already apologised for that Mr Peters. If that is what Dr Smith said and if that implication was in respect of Mr Peters I ask him to withdraw please. 
Hon Dr Nick Smith 
: I withdraw just to be kind.  
Hon Dr Michael Cullen 
: I raise a point of order Mr Chairperson. It is not good enough to withdraw and then to add further words afterwards. It really is time for members to withdraw and apologise properly and to move on. This is not doing the Committee any good at all.  
The CHAIRPERSON (Hon Clem Simich) 
: I thank Dr Cullen and I ask the member to do a succinct withdrawal. 
Hon Dr Nick Smith 
: I withdraw. 
RON MARK 
: New Zealand First said it would fix this issue. Our leader the Rt Hon Winston Peters said right at the start of this debate that at the end of the day the situation will be what people always believed it to be and that ownership will return to the Crown. That is precisely where the foreshore and seabed will be vested as everybody believed it was in the first place.  
It is interesting that the National Party in trying to deal with the debate right now is showing all the signs of a party that is in total disarray. Its members are very confused and have to resort to being smart alec little schoolboys to make points. That is interesting because when the National members have to resort to those sorts of tactics it proves that they have no basis for their argument and nothing valid to say. I notice that Don Brash has not made one speech in the many long hours we have been here. Gerry Brownlee rightly thought that if Don Brash was not going to be here nor would he. So he got himself thrown out of the Chamber and he is not here either. We are left with schoolboy drivel. Parliament deserves better than that and the country deserves better than that.  
New Zealand First said that it would fix this problem and it has. We will fix the leadership of the National Party too. We will make sure that it has a complete restructuring at the next election and when National members come back they may ask whether they can be a junior coalition partner in some form of Government. 
Hon Dr NICK SMITH (National—Nelson) 
: 
 The member Ron Mark had the cheek to ask the Committee what we were doing debating a 135-page Supplementary Order Paper introduced only this very day. 
Hon Dr Michael Cullen 
: It was yesterday. 
Hon Dr NICK SMITH 
: What is the date on the wall of the Chamber? On the same parliamentary day that a Supplementary Order Paper is being introduced that is 135 pages long the members from New Zealand First say that this legislation will not affect access and that public access is guaranteed. I want to go right back to the core of this issue because it started in my electorate of Nelson. It started with the erection of a sign on the foreshore that stated “No access” and that one needed to get the consent of the local iwi in order to be able to go into those areas. The effect of that gate is to control public access for boating along about a 60-kilometre area of coastline. Who has the key to that gate is critical to access. [ 
Interruption 
] A moment ago Ron Mark told me to make a contribution and to talk about the issues. When I then talk about the issues he tries to shout me down. I want to know whether this bill will guarantee my constituents access to that 60 kilometres of coastline. The answer is no it does anything but that.  
This bill sets up an idea that just came into the public arena in the last 24 hours which is the provision for foreshore and seabed reserve. 
John Tamihere 
: It’s not about the coastline. 
Hon Dr NICK SMITH 
: We should not believe anything that Mr Tamihere says. He is the member who told the public one thing and was sacked for doing the opposite of that. He was the Minister for Land Information who said that there were thousands of kilometres of privately owned foreshore and was then found to be fibbing. He was saying the exact opposite of what the department had said. That is an absolute fact. 
Rt Hon Winston Peters 
: I raise a point of order Mr Chairperson. The member may say that another member is mistaken has misrepresented the facts or does not have the facts right but he cannot say that a member is fibbing or lying. Dr Smith needs to take a good long look at himself. 
The CHAIRPERSON (Hon Clem Simich) 
: The member has made his point. 
Rt Hon Winston Peters 
: Well I am worried about him. 
The CHAIRPERSON (Hon Clem Simich) 
: Yes I can see the concern there. “Fibbing” means the same as “lying” albeit at a lower level. 
Hon Dr NICK SMITH 
: I withdraw and apologise. It is a matter of public record that John Tamihere as Minister for Land Information said that there were thousands of kilometres of privately owned foreshore in the very week that his own department had written a report that stated there were only a few kilometres. It is little wonder that he was fired or had to resign as a Minister because he has difficulty with the truth.  
I also want to come back to the issue of public access. New Zealand First says that it is all guaranteed. It is not at all. In the new amendments this bill provides for wahi tapu to be created for wardens to be appointed and for those wardens to have the power to exclude people from those areas. Does that guarantee public access to the foreshore? Of course it does not. We know that in areas such as Tauranga where wahi tapu have been broadly described as areas of hundreds of hectares we will now be opening up the wahi tapu industry and extending it into the foreshore and seabed with new instruments to remove public access. So how can Winston Peters and his crew of fools from New Zealand First stand up in this Chamber and pretend that public access will be guaranteed? 
Ron Mark 
: I raise a point of order Mr Chairperson. I have seen about three or four people stand up in this Chamber and describe how mortally wounded and offended they were by some of the statements that were made. I have also suffered endless interjections from Dr Nick Smith on points of order. Being called a fool has mortally wounded me; it has offended me most sincerely. I would like him to withdraw that. Otherwise I will just think he is a bigger idiot than we already know he is. 
Hon Dr NICK SMITH 
: I raise a point of order Mr Chairperson. My colleague Gerry Brownlee was thrown out of the House for raising spurious points of order. Can you explain to me the specific point of order Ron Mark has made that means he should not suffer the same fate as Gerry Brownlee? 
The CHAIRPERSON (Hon Clem Simich) 
: He was trying to explain to me why he thought he was offended. I did not accept that. 
Hon Dr NICK SMITH 
: It is an absolute disgrace that a 135-page-long Supplementary Order Paper which is very complex and concerns very important legislation has been dropped on this Committee and that we are expected to ram this legislation straight through under urgency. It is a disgrace that New Zealand First is part of that con job. It is a disgrace that members of the Labour Party are prepared to do that in this Parliament. We see in this part of the bill and from New Zealand First—[ 
Interruption 
] Well it will be a damned good job.  
Rt Hon Winston Peters 
: When will you retire? 
Hon Dr NICK SMITH 
: We will not have to retire Winston Peters because we know from the polls that the new National candidate Bob Clarkson will take him out in Tauranga.  
The CHAIRPERSON (Hon Clem Simich) 
: There should be fewer interjections please. 
Hon Dr NICK SMITH 
: The issue for Mr Peters is how he can possibly justify saying to the public of New Zealand that this bill guarantees public access when we know that there is nothing in it that will take away the sort of gates that I have seen erected to remove public access on the foreshore of my electorate. Furthermore the provisions for special foreshore reserves for wahi tapu and for people to be excluded from that area of foreshore mean that the guarantees of access are not worth a grain of salt. I challenge Winston Peters to resign when the first person is excluded from the beach and the foreshore in my electorate. 
NANAIA MAHUTA (Labour—Tainui) 
: 
 I rise to make a contribution to the debate on clause 28 and the meaning of territorial customary rights. I think that this is a part of the bill that may cause a lot of difficulty in terms of defining customary property rights. In itself the title should be quite clear—territorial customary rights should state that it is a customary title. However that is not achievable in this bill and I do not think that the clause goes far enough. The issue arose from one of the comments that Dr Paul McHugh raised. He emphasised that tikanga would undoubtedly play a part in the development of the common law of New Zealand. It seems to me that if territorial customary rights or customary titles are to be provided for it is important that the contiguous land test is one that takes into account tikanga the 1840 principle and contiguous land ownership. But the way in which the bill has been written puts too much weight on the contiguous land issue. That may be something that may be revisited.  
It is important throughout the initial clauses of the bill that tikanga should be an upfront consideration of how to determine a territorial customary right because then all the considerations about how land transactions occurred along the coast could be better taken account of. I brought a submission to the select committee. I am from one of those groups that are not coastal tribal dwellers. In fact I have more of an association with a river so I make no secret about that and I am not an expert in this area. However I recognise that under tikanga the transference of land to kin network groups so that they are able to exercise a right along the coast is something that is well established over a long period of time. So when we are looking at the evidence that will be considered to determine whether a territorial customary right could be awarded those types of issues need to be taken into account if there is to be a real attempt to try to address this issue.  
What happens if the test is so high that no territorial customary right can be awarded? How long do we wait? We have already seen under the fisheries legislation that getting the issue of mataitai reserves through has quite a long gestation period. The legislative process has not really applied its thinking to trying to improve that. I do not really think that we should let that happen in this instance. It seems to me that clause 28 is problematic but we will never know until we try it and we have to start somewhere. I accept that. However it does not go far enough.  
There were points within this issue that I think were raised before the select committee and during the discussions by many Maori submitters who said that if we were to have a test it must take into account their own tikanga. I do not know how this can be reflected in law but I think that the way in which it is written in clause 28 is a bit convoluted and we should simplify it a bit more.  
In fact the Maori Land Court really has the expertise in this area and has already made provision for determining issues of tikanga. Perhaps that may be an avenue that may assist the High Court in its determination.  
The other point about the tikanga test is this: will it be clear when evidence is presented to the High Court that those matters can be considered before the court? I am not sure. I hope that it can be and if it cannot it should be fixed at some later date.  
Clause 28 is a bit convoluted as I have already said. The contiguous land issue although it seems that the clause is written as a determining factor should be balanced off against other interests. The points were raised with the select committee I understand that other considerations should be taken into account. We hope that when Maori take the path of determining their territorial customary right to gain a customary title the test applied will achieve that. I am not sure that it will. 
Hon RICHARD PREBBLE (ACT) 
: 
 I want to raise a matter with the Minister. I concede immediately that I am not sure about the matters I am raising. The reason is that the Supplementary Order Paper has come in so late and there is no explanatory note. Let me say what I think the situation is. When I am looking at the position for the granting of a territorial customary right I see that it appears that the test to the High Court is a high one and is the test that the Court of Appeal would have applied but for this bill. New clause 28(2)(a) states: “that area was used and occupied to the exclusion of all persons who did not belong to the group by members of the group without substantial interruption in the period that commenced in 1840 and ended with the commencement of this Part;”. When we look at that provision we can see that there are very few parts of the foreshore of New Zealand that Maori can say they have occupied to the exclusion of all others. That is what the common law is. That is the nature of a customary right. If one does not use it one loses it. The Government could say that it is reinstating the law.  
I have no difficulty with that except when I come to new clause 34A “If no finding made application may in appropriate cases be considered under Part 3 or Part 4”. It states: “If the High Court does not make a finding under section 29 but considers that any rights identified in the application are rights of a kind that are more appropriately considered under Part 3 or Part 4 the High Court may do whichever of the following is appropriate: (a) treat the application as an application under Part 4: (b) refer the application to the Maori Land Court for consideration under Part 3.”  
The point I make to the Government is that this is an example of why the Parliament is saying that Maori are both losing and gaining. On the face of it the provision appears to be tough but it then states that even if a group does not have a customary right it can send its application off to the Maori Land Court to create one. I cannot go into Part 3—[ 
Interruption 
] No in the debate on Part 3 I will say that Maori are most certainly given that right. If I have interpreted it correctly firstly it explains why the bill is so complicated and secondly the bill is an outrage. This Parliament should not be taking away citizens’ property rights but it should not be creating them either. Here is a situation whereby the Government is taking away property rights from Maori—and that makes it racist—and it appears to me it is creating some other possibly inferior property rights for Maori and only Maori which is also racist.  
I would like the Minister to explain firstly whether I am right in my explanation and secondly what possible justification there is to say to people who no longer have a customary right and no longer own the foreshore that presumably because they once did—and because they feel affectionate towards it—they will have special rights under the Resource Management Act. I ask the Minister where the justification for that is. What possible legal principle is behind that? It seems to me to explain why this bill is so complicated. The Government wants to hide from ordinary New Zealanders that this is what it is doing. It seems to me to be stuck in the swamp of the politics it has got itself into. This is what happens when a Government moves away from clear statements of principle.  
As I read the first part of the provision it seems to me to be a clear statement of the law. Some people may not like it but that is the statement of the law. If one has a customary right and has not exercised it one loses it. One must use it or lose it. Now the Government is saying that even when the High Court finds that the parties have not used the customary right and that usage has not been exclusive it will refer them to the Maori Land Court to find new rights. I ask the Minister where the justification for that is. How can the Government possibly justify new clause 34A where if the court does not find that there is a customary right—where a group has lost the property—the application should be considered under Part 3? 
LYNNE PILLAY (Labour—Waitakere) 
: 
 I move  
That the question be now put 
. 
GERRY BROWNLEE (Deputy Leader—National) 
: 
 The points that Mr Prebble made— 
Clayton Cosgrove 
: Old Lazarus! 
GERRY BROWNLEE 
: It is interesting to hear Mr Cosgrove quoting the Gospel. It must be the influence of sitting next to Mr Tamihere. The point that Mr Prebble made was to say the least an interesting one. It takes us back to new clause 29 “High Court may find that a group held territorial customary rights” which refers to groups that had it not been for the passing of this bill or for the foreshore and seabed having passed into Crown ownership might have been able to claim a territorial right. The Minister in the chair Michael Cullen may want to tell us what are the limits and constraints on that. Surely most Maori communities around the countryside would at some time have been on land contiguous with the foreshore and seabed—certainly some inland we know that. Many around the coastline have not been there for many many years. In my own city of Christchurch I can think of those sorts of communities but when the Canterbury Association ships arrived in 1850 and the Deans’ lease was renegotiated and became a lease deal many of those communities moved. Had they not moved then clearly they would have held according to this bill the territorial right to those seas. I simply ask what the constraint is that the court is under when considering applications under clause 29.  
Hon Dr Michael Cullen 
: Contiguous now. 
GERRY BROWNLEE 
: Although Dr Cullen says: “Contiguous now.” the point is that the bill is saying that had those groups held the land they would not have lost the territorial title. Surely there has to be some better answer than that it applies only now. It may well mean that those iwi groupings and small hapu around the country are able to go back many many years to a time when they were in possession of those properties.  
I need to make a few comments about new clause 12 because when I last spoke on this bill we were debating up to that clause. There has been a lot of discussion this afternoon— 
Hon Dr Michael Cullen 
: It’s called reasonable continuity. 
GERRY BROWNLEE 
: It indicates that we have a long way to go in debating this part. It has taken about an hour to get from clause 12 to clause 34 and we have some considerable distance to go before we get to Part 3.  
My real point is that a number of people have asked this afternoon what clause 12 is all about. Essentially it is about empowering the Government to do deals in treaty settlements in order to see the transfer of foreshore and seabed ownership passed to Maori. We might well decide that this is the Tainui clause or the Hauraki clause—two groupings that the Government is currently negotiating with. [ 
Interruption 
] The Minister of Maori Affairs has confirmed across the Chamber that that is exactly what the purpose is. The Minister is able to tell his people to go along with this bill because where it counts the Government will do a deal with them and will pass over the ownership of those seabed and foreshore areas in the rohe. It is quite a simple thing in actual fact.  
I do not think the other parts of this bill are really adequate enough to fully distinguish in the public’s mind the difference between a territorial customary title and a customary right. It seems to me that the two have been confused not only by commentators but particularly by the Government throughout the passage of this bill. Indeed I think it was around the issue of customary rights that ancestral connection hit the rocks. It has been moved out of this bill and the proposal has come forward that it be placed into resource management legislation.  
MARK PECK (Labour—Invercargill) 
: 
 I move  
That the question be now put 
. 
LARRY BALDOCK (United Future) 
: 
 I will continue on from where I left off in my last call by asking the Minister to give an explanation to the Committee—and I think it would be beneficial to people in local government around the country—of the loss of title by local government to the foreshore and seabed. We understand the reason for that if it concerns the wet part of the foreshore and seabed but can the Minister explain whether compensation will be paid if it is reclaimed land that has not yet gone into private title? In fact can he explain what the bill states about that particular part of the former foreshore and seabed? There is a weird bit of policy running through the bill that has nothing to do with the Ngati Apa issue whereby land that is no longer foreshore and seabed will now be claimed by the Crown and the issuing of private title to it will be prevented. Could the Minister give an explanation of how that will affect local government—even if just for my sake in order to give me an understanding of that?  
In this call I want to speak mostly on clause 34B “Purposes and status of foreshore and seabed reserve”. That is a very interesting and late development in the whole process. It may become contentious in the future not for any negative reason in terms of Maori being able to establish foreshore and seabed reserves in areas where territorial customary rights are established but because other New Zealanders will become pretty jealous of that model. That model seems like a pretty good idea to many people who are concerned about the management of the inshore area—the foreshore and seabed—particularly out to the 4-mile or the 12-mile area. They too would like to be involved in management committees or guardianship roles in that area. We have the precedent of the Guardians of Fiordland’s Fisheries and Marine Environment an excellent model established over the last 3 or 4 years. I know that many people particularly recreational fishers are interested in seeing that model expanded around the country. Here we find it expanded under the provisions of this bill and I think that is good.  
I would just like to mention a couple of points. It is reassuring that clause 34B(2) states very clearly: “Neither the guardians of a foreshore and seabed reserve nor the applicant group nor the board is entitled to charge or collect fees or other form of payment from any person or body for the use or occupation of the reserve.” I think that is wonderful; that is the way it ought to be. But then when we go to clause 34C(1)(c) we find that when a board is being set up the persons or bodies to be represented on it must determine “the resources required for the operation of the board and how its costs will be met.” It is very clear that the boards are prohibited from charging people. That is good and reassuring but clearly costs will be involved in the setting-up and ongoing operation of the guardian boards. In fact if we go to clause 34D(1)(v) we see that there is a requirement to set up a policy outlining “the remuneration of members and the payment of members’ out of pocket expenses;”. That begs the question of who will be paying for that.  
I think local government will be interested in that issue. It seems to be made the responsibility of regional councils as under clause 34C(2) it is “the regional council with responsibility under the Resource Management Act 1991 for the area to which the High Court finding relates;” that will have the guiding role in it all. I am sure regional councils will be interested to know whether they will have to pay for the costs which will then come from the ratepayers. While I understand the need for flexibility it is not clear who will pay those costs. I do not see why if we are to give Maori the opportunity to establish those reserves at their request the costs ought not to be borne by Maori. If the policy here is intended to state that Maori must make it clear how they will pay those costs I think that will be acceptable to most New Zealanders. But if in fact the costs are to be paid by ratepayers—if the costs are to be shared by all the residents of the area—then I think local government will be looking very carefully at the make-up of the boards or the guardian entities in order to see that there is fair and equal representation.  
I do not make these comments to suggest that the foreshore and seabed reserves are in any way a bad thing. I think they are a very positive step particularly if that model enables more local control over the establishment of marine reserves. Those reserves are causing huge contention around New Zealand and I think the answer is to allow local people to have local management of such areas. 
LINDSAY TISCH (Junior Whip—National) 
: 
 I raise a point of order Madam Chairperson. I note that the Government is moving closure motions on a very important part of this bill Part 2. We have now been going for 3 hours on this part and 25 calls have been taken. I ask you to compare that with Part 1 on which we spent over 3½ hours and had 36 calls. Some National spokespeople want to speak and they have been seeking the call. Dr Wayne Mapp who was on the Fisheries and Other Sea-related Legislation Committee has been seeking a second and a third call for the last couple of hours. I ask that you take that into consideration before you consider the closure motion. 
Hon Dr MICHAEL CULLEN (Leader of the House) 
: 
 Madam Chairperson I will not try to influence you one way or the other; I simply point out that it is totally improper by way of point of order or otherwise to try to influence the Chair on the taking of a closure motion. It should not be done. 
The CHAIRPERSON (Ann Hartley) 
: I thank the member. We have spoken about this a couple of times during the debate and say to Mr Tisch that points of order on this have been answered. 
CLAYTON COSGROVE (Labour—Waimakariri) 
: 
 I move  
That the question be now put 
. 
Dr WAYNE MAPP (National—North Shore) 
: 
 I want to talk—[ 
Interruption 
] 
Gerry Brownlee 
: I raise a point of order Madam Chairperson. I do hope that Dr Mapp’s time has not commenced. 
The CHAIRPERSON (Ann Hartley) 
: No. 
Gerry Brownlee 
: I also suggest that had such behaviour occurred on this side of the Chamber we might have ended up with someone being ejected from the Chamber. But I suppose you have to make exceptions when people are as remedial as Mr Cosgrove. 
The CHAIRPERSON (Ann Hartley) 
: That was not a point of order; it only leads to disorder. I had called for order. 
Dr WAYNE MAPP 
: I want to talk about two issues. The first is the claim that New Zealand First members have been making which is that they believe in one law for all. Their leader said that in his contribution. In fact he has been going around the whole country making that claim and he gets a certain number of votes for it. Today he is doing precisely the opposite. He is not just voting for the legislation; he actually participated in its drafting. Mr Dail Jones and Mr Winston Peters have been working together with the Government to build separatist law. That is what has happened. I see headlines alleging that New Zealand First believes in one law for all. In reality they provide divisive law.  
If we look at the territorial customary rights rules we see they can be claimed only by Maori. That is the first point. No one can reasonably dispute that fact. How can that possibly fit within the rubric of one law for all? There are two separate bodies of law; there is simply no doubt about that fact. The second point is that New Zealand First claims to be providing Crown law and Crown ownership for all New Zealanders. 
Dave Hereora 
: That’s right. 
Dr WAYNE MAPP 
: The member says: “That’s right.” Territorial customary rights cut right across that. They will restrict the ability of the owner the Crown—on behalf of all New Zealanders—to freely exercise its ownership. Why do I say that? We have only to look at clause 6 the purported access provision to see why. Such provisions are typically drafted so that the first part of the clause is a general proposition—in this case it is that there shall be a complete right of access across the public foreshore—and then the devil is in the detail. We have only to go to clause 6(3) to see all the provisos. [ 
Interruption 
] In that instance access rights can be restricted and limited and that is exactly what has happened. So right through this legislation one gets the general proposition then the provisos.  
I want to provide another example for members of New Zealand First who clearly do not understand this and they have only to look at clause 11 “Public foreshore and seabed vested in the Crown”. Again in subclause (1) is the general proposition that ownership is vested in the Crown absolutely. Almost immediately below that subclause (3) provides: “Subsection (1) does not affect customary rights that are able to be recognised and protected under Part 3 and Part 4.” Those parts of course are the very areas where we get the territorial customary rights and the customary rights orders which then provide limitations to the general ownership provisions.  
So there are general grand-sounding principles that are then shot through with all sorts of exceptions that serve to limit the public interest. New Zealand First claims to protect the public interest but I will not ascribe even that to the Labour Government. Those Labour members know what they are doing. They know they are setting up separatist law and are proud of it. In the  
New Zealand Herald  
today we read that the Maori members expect 10 percent of the coastline to be subject to those territorial customary rights orders.  
Government Member 
: Ah! 
Dr WAYNE MAPP 
: Those members might groan but I believe what I read in the papers—[ 
Interruption 
] When journalists quote or refer to the views of the Maori caucus it is because they have spoken to its members. Those members know that reality. Those members opposite spoke to the journalist and told her that it was exactly their expectation. They told the  
New Zealand Herald  
that they expect the percentage to be 10 percent and that is what they will demand. Dover Samuels cannot possibly deny that. 
Hon MARK GOSCHE (Labour—Maungakiekie) 
: 
 I move  
That the question be now put 
. 
A party vote was called for on the question  
That the question be now put. 
Ayes 66 
New Zealand Labour 51; New Zealand First 13; Progressive 2. 
Noes 52 
New Zealand National 27; Green Party 9; ACT New Zealand 8; United Future 8. 
Motion agreed to. 
The question was put that the following amendment in the name of Metiria Turei to clause 10 be agreed to: 
to omit this clause. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 10 
Green Party 9; Maori Party 1. 
Noes 109 
New Zealand Labour 51; New Zealand National 27; New Zealand First 13; ACT New Zealand 8; United Future 8; Progressive 2. 
Amendment not agreed to. 
The question was put that the following amendment in the name of Metiria Turei to clause 11 be agreed to: 
to omit subclause (1). 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 10 
Green Party 9; Maori Party 1. 
Noes 109 
New Zealand Labour 51; New Zealand National 27; New Zealand First 13; ACT New Zealand 8; United Future 8; Progressive 2. 
Amendment not agreed to. 
The question was put that the following amendment in the name of Metiria Turei to clause 11 be agreed to: 
to omit from subclause (2) the expression “Subsection (1)”. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 10 
Green Party 9; Maori Party 1. 
Noes 109 
New Zealand Labour 51; New Zealand National 27; New Zealand First 13; ACT New Zealand 8; United Future 8; Progressive 2. 
Amendment not agreed to. 
The question was put that the following amendment in the name of Metiria Turei to clause 11 be agreed to: 
to omit from subclause (3) the expression “Subsection (1)”. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 10 
Green Party 9; Maori Party 1. 
Noes 109 
New Zealand Labour 51; New Zealand National 27; New Zealand First 13; ACT New Zealand 8; United Future 8; Progressive 2. 
Amendment not agreed to. 
The question was put that the following amendment in the name of Metiria Turei to clause 21 be agreed to: 
to insert in subclause (2) after the words “or subclause (1A)”; the words “or subclause (1B)”. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 10 
Green Party 9; Maori Party 1. 
Noes 109 
New Zealand Labour 51; New Zealand National 27; New Zealand First 13; ACT New Zealand 8; United Future 8; Progressive 2. 
Amendment not agreed to. 
The question was put that the following amendment in the name of Metiria Turei to clause 29 be agreed to: 
to omit the words “ but for the vesting of the full legal and beneficial ownership of the public foreshore and seabed in the Crown by section 11 have held” and substitute the word “hold”. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 10 
Green Party 9; Maori Party 1. 
Noes 109 
New Zealand Labour 51; New Zealand National 27; New Zealand First 13; ACT New Zealand 8; United Future 8; Progressive 2. 
Amendment not agreed to. 
The question was put that the amendment in the name of Metiria Turei to clause 9 set out on Supplementary Order Paper 302 in the name of the Hon Dr Michael Cullen be agreed to: 
to omit proposed new subclause (1). 
A party vote was called for on the question  
That the amendment to the amendment be agreed to. 
Ayes 10 
Green Party 9; Maori Party 1. 
Noes 109 
New Zealand Labour 51; New Zealand National 27; New Zealand First 13; ACT New Zealand 8; United Future 8; Progressive 2. 
Amendment to the amendment not agreed to. 
The question was put that the following amendment in the name of Metiria Turei to proposed new clause 9A set out on Supplementary Order Paper 302 in the name of the Hon Dr Michael Cullen be agreed to: 
to omit the words “must not take any action other than one of” and substitute the words “may take any action it sees fit including but not restricted to”. 
A party vote was called for on the question  
That the amendment to the amendment be agreed to. 
Ayes 10 
Green Party 9; Maori Party 1. 
Noes 109 
New Zealand Labour 51; New Zealand National 27; New Zealand First 13; ACT New Zealand 8; United Future 8; Progressive 2;  
Amendment to the amendment not agreed to. 
The CHAIRPERSON (Ann Hartley) 
: The next amendment is to clause 12 in the name of Larry Baldock. I ask members to note that this proposal for entrenchment requires the agreement of 90 members. 
The question was put that the following amendment in the name of Larry Baldock to proposed new clause 12 set out on Supplementary Order Paper 302 in the name of the Hon Dr Michael Cullen be agreed to: 
to omit paragraph (a) of subclause (2) and substitute the following new paragraph: 
(a)by a special Act of Parliament: 
(i) passed by a majority of 75% of all the members of the House of Representatives; and 
(ii) enacted after the commencement of this Act; or. 
A party vote was called for on the question  
That the amendment to the amendment be agreed to. 
Ayes 17 
Green Party 9; United Future 8. 
Noes 102 
New Zealand Labour 51; New Zealand National 27; New Zealand First 13; ACT New Zealand 8; Progressive 2; Maori Party 1. 
Amendment to the amendment not agreed to. 
The CHAIRPERSON (Ann Hartley) 
: The next amendment is to clause 12 in the name of Metiria Turei. It is an entrenchment clause and was different in element from the previous amendment and that is why it was allowed. 
The question was put that the following amendment in the name of Metiria Turei to proposed new clause 12 set out on Supplementary Order Paper 302 in the name of the Hon Dr Michael Cullen be agreed to: 
to add the following new subclauses: 
(3)No special Act of Parliament to which subsection (2)(a) applies may be passed unless the proposal for the Act— 
(a)is passed by a majority of 75% of all the members of the House of Representatives; or 
(b)has been carried by a majority of the valid votes cast at a poll of the electors of the general and Maori electoral districts: 
provided that this subsection does not apply to the repeal of subsection (1) or (2) by a consolidating Act in which that provision is or those provisions are re-enacted without amendment and this subsection is re-enacted without amendment so as to apply to that provision or those provisions as re-enacted. 
(4)Subsection 3 does not apply where special legislation is proposed for the alienation of the foreshore and seabed for the purposes of any treaty settlement legislation. 
A party vote was called for on the question  
That the amendment to the amendment be agreed to. 
Ayes 10 
Green Party 9; Maori Party 1. 
Noes 101 
New Zealand Labour 51; New Zealand National 27; New Zealand First 13; ACT New Zealand 8; Progressive 2. 
Abstentions 8 
United Future 8. 
Amendment to the amendment not agreed to. 
The question was put that the following amendment in the name of Metiria Turei to proposed new clause 14 set out on Supplementary Order Paper 302 in the name of the Hon Dr Michael Cullen be agreed to: 
to omit proposed new paragraph (a) of subclause (2). 
A party vote was called for on the question  
That the amendment to the amendment be agreed to. 
Ayes 10 
Green Party 9; Maori Party 1. 
Noes 109 
New Zealand Labour 51; New Zealand National 27; New Zealand First 13; ACT New Zealand 8; United Future 8; Progressive 2. 
Amendment to the amendment not agreed to. 
The question was put that the following amendment in the name of Deborah Coddington to clause 15(1) be agreed to: 
to insert after the words “acquire” the words “by agreement”. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 43 
New Zealand National 27; ACT New Zealand 8; United Future 8. 
Noes 76 
New Zealand Labour 51; New Zealand First 13; Green Party 9; Progressive 2; Maori Party 1. 
Amendment not agreed to. 
The question was put that the amendment in the name of Metiria Turei to proposed new clause 19 set out on Supplementary Order Paper 302 in the name of the Hon Dr Michael Cullen be agreed to: 
to omit this clause. 
A party vote was called for on the question  
That the amendment to the amendment be agreed to. 
Ayes 10 
Green Party 9; Maori Party 1. 
Noes 109 
New Zealand Labour 51; New Zealand National 27; New Zealand First 13; ACT New Zealand 8; United Future 8; Progressive 2. 
Amendment to the amendment not agreed to. 
The question was put that the following amendment in the name of Metiria Turei to the amendment to clause 21 set out on Supplementary Order Paper 302 in the name of the Hon Dr Michael Cullen be agreed to: 
to add the following new subclause: 
(1B) If a holder of customary rights order or a territorial customary rights order makes a written application to the Minister of Conservation and to the Minister of Maori Affairs those Ministers may to the extent that they consider it necessary to protect the relevant wahi tapu by notice in the  
Gazette 
 prohibit or restrict access over any area of the public foreshore and seabed. 
A party vote was called for on the question  
That the amendment to the amendment be agreed to. 
Ayes 18 
Green Party 9; ACT New Zealand 8; Maori Party 1. 
Noes 101 
New Zealand Labour 51; New Zealand National 27; New Zealand First 13; United Future 8; Progressive 2. 
Amendment to the amendment not agreed to. 
The question was put that the following amendment in the name of Metiria Turei to proposed new clause 28 set out on Supplementary Order Paper 302 in the name of the Hon Dr Michael Cullen be agreed to: 
to omit this clause. 
A party vote was called for on the question  
That the amendment to the amendment be agreed to. 
Ayes 11 
Green Party 9; Maori Party 1; Other: Nanaia Mahuta. 
Noes 108 
New Zealand Labour 50; New Zealand National 27; New Zealand First 13; ACT New Zealand 8; United Future 8; Progressive 2. 
Amendment to the amendment not agreed to. 
The question was put that the following amendment in the name of Metiria Turei to the amendment to clause 33(1) set out on Supplementary Order Paper 302 in the name of the Hon Dr Michael Cullen be agreed to: 
to omit the word “either” and to substitute the word “any”. 
A party vote was called for on the question  
That the amendment to the amendment be agreed to. 
Ayes 10 
Green Party 9; Maori Party 1. 
Noes 109 
New Zealand Labour 51; New Zealand National 27; New Zealand First 13; ACT New Zealand 8; United Future 8; Progressive 2. 
Amendment to the amendment not agreed to. 
The question was put that the following amendment in the name of Metiria Turei to proposed new clause 33 set out on Supplementary Order Paper 302 in the name of the Hon Dr Michael Cullen be agreed to: 
to add the following new paragraph: 
(c)any other orders or findings as it considers appropriate under its inherent jurisdiction. 
A party vote was called for on the question  
That the amendment to the amendment be agreed to. 
Ayes 10 
Green Party 9; Maori Party 1. 
Noes 109 
New Zealand Labour 51; New Zealand National 27; New Zealand First 13; ACT New Zealand 8; United Future 8; Progressive 2. 
Amendment to the amendment not agreed to. 
The question was put that the following amendment in the name of Metiria Turei to proposed new clause 33A set out on Supplementary Order Paper 302 in the name of the Hon Dr Michael Cullen be agreed to: 
to add to subclause (4) the words “or (c)”. 
A party vote was called for on the question  
That the amendment to the amendment be agreed to. 
Ayes 10 
Green Party 9; Maori Party 1. 
Noes 109 
New Zealand Labour 51; New Zealand National 27; New Zealand First 13; ACT New Zealand 8; United Future 8; Progressive 2. 
Amendment to the amendment not agreed to. 
The question was put that the following amendment in the name of Metiria Turei to proposed new clause 34 set out on Supplementary Order Paper 302 in the name of the Hon Dr Michael Cullen be agreed to: 
to omit this clause. 
A party vote was called for on the question  
That the amendment to the amendment be agreed to. 
Ayes 10 
Green Party 9; Maori Party 1. 
Noes 109 
New Zealand Labour 51; New Zealand National 27; New Zealand First 13; ACT New Zealand 8; United Future 8; Progressive 2. 
Amendment to the amendment not agreed to. 
The question was put that the amendments set out on Supplementary Order Paper 302 and Supplementary Order Paper 304 in the name of the Hon Dr Michael Cullen to Part 2 be agreed to. 
A party vote was called for on the question  
That the amendments be agreed to. 
Ayes 74 
New Zealand Labour 51; New Zealand First 13; United Future 8; Progressive 2. 
Noes 45 
New Zealand National 27; Green Party 9; ACT New Zealand 8; Maori Party 1. 
Amendments agreed to. 
A party vote was called for on the question  
That Part 2 as amended be agreed to. 
Ayes 66 
New Zealand Labour 51; New Zealand First 13; Progressive 2. 
Noes 53 
New Zealand National 27; Green Party 9; ACT New Zealand 8; United Future 8; Maori Party 1. 
Part 2 as amended agreed to. 
Part 3 Provisions relating to Maori Land Court and orders it may make  
The CHAIRPERSON (Ann Hartley) 
: The debate on Part 3 clause 35 to 56 includes debate on schedule 1.  
GERRY BROWNLEE (Deputy Leader—National) 
: 
 I raise a point of order Madam Chairperson. I just want a clarification. I am looking through the redline copy which I know is not official but is there to help us. I notice that clauses 38 to 40 seem to be struck out. In actual fact it would appear that the sequential numbering will go from clause 37 straight to clause 41. Is that caused by hurried preparation or do I have a copy with some bits missing? My pages are sequentially numbered if that helps.  
The CHAIRPERSON (Ann Hartley) 
: Would the member please repeat that. 
GERRY BROWNLEE 
: If you go to page 46 of that document Madam Chairperson you will see that the last clause there is clause 37 “Applications for orders”. There is a small clause remaining there but virtually from there on the clauses—38 39 40 and 41 42 and 43—are all removed. When it comes to the content going back into the bill on page 50 we start with clause 41 so it is just a question of what has happened to clauses 38 39 and 40. 
Dail Jones 
: I raise a point of order Madam Chairperson. Whilst the Minister is perhaps getting some more information I note on just having a quick look at it that that legislation relates to ancestral connection does it not? That has been deleted hence it is not in the bill any more. 
The CHAIRPERSON (Ann Hartley) 
: Yes but I did not hear fully what the member said. 
Dail Jones 
: I believe that those deletions relate principally to ancestral connection and there have been some further matters tidied up as well. Perhaps the Minister could take another call because I was doing something else when the point of order was raised. But if we look at the redline version we see that it is principally ancestral connection matter that has been deleted I think and matter linked to it to some extent. The Minister can confirm whether I am right. 
Hon Margaret Wilson 
: As I read it both members are right. The numbers do not run sequentially and that is because the ancestral connection clauses have been removed—those three—so the bill needs to be renumbered. As the member Mr Brownlee quite rightly noted this redline version is here to assist; it is not the official version. It will be changed. 
GERRY BROWNLEE 
: Well I think that that just serves to show how difficult it is to deal with this bill. I am very pleased that the New Zealand First member Dail Jones is in the Chamber. He should be sitting in the Minister’s chair. That little explanation from him certainly confirms that this Supplementary Order Paper which is effectively an amendment bill by and large is his work. The country will not thank him for that.  
The interesting thing about this part we would contend is that in many ways clause 35 is what the Government should have done—or the essence of it is what it should have done—right from the start to make it clear that the Te Ture Whenua Maori Act did not give jurisdiction to the Maori Land Court to deal with the foreshore and the seabed. That should have happened right upfront and the rest of it should have been taken from there. 
The fascinating thing about this whole part is that it will empower the Maori Land Court to decide who has customary rights and who does not. It would seem to me that if an iwi grouping a hapu grouping or even a whanau grouping has a customary right then it has it. So why does it have to go to the Maori Land Court to have that right sorted out? 
In the South Island—and Dover Samuels will be able to attest to this because he is a beneficiary—there are arrangements for a particular customary right on the Crown’s Titi Islands the mutton birding islands that is a long established customary right. Not any Maori can go there; only certain families can go there. That right has been passed down from generation to generation and I expect that it would not change if there were some application to have it further ratified by going to the Maori Land Court. 
Our view quite simply when it comes to customary rights is that those recognitions should be made as part of treaty settlements—as they have been frequently up to now as they were under the National Party and as they will continue to be under the National Party. Those areas in question are not huge; they are relatively discrete areas around the country where undeniably there has been an exercise of a customary right for many many generations. 
What is perhaps most offensive about this piece of the bill is that it assumes and works from the premise that no customary right can be established post-1840. That has to be an utter nonsense. A good part of the country was completely desolate of human habitation in 1840. There have to be hundreds of thousands of people who have taken up residence around this country and engaged in activities that could be considered customary only for them. But this bill will not recognise that. I think particularly in the South Island where it was so sparsely populated and where new communities have sprung up that no matter whether people are Maori or non-Maori this legislation will be a denial of customary rights that they should be able to exercise. I think it is also amazing that where we can say there has been a customary practice—obviously in this case for more than 160-odd years or whatever—suddenly the Minister of Conservation will be brought in on top of that and he will make the determination for example of how many mutton birds Dover Samuels and his colleagues can take from the Crown’s Titi Islands in any particular year—[ 
Interruption 
] I only said Dover Samuels because he told me that he has access rights. 
Hon Member 
: I would not believe him. 
GERRY BROWNLEE 
: Oh has he not? He has led me up the garden path. Well why is that a surprise!  
The point is that there are people who have had those access rights and who have been carrying out that activity for many many years and it does not appear that they have carried out that activity in a way that has destroyed the resource. But it would appear that we are still going to have the Maori Land Court ratify that. Then despite treaty settlements we are going to have the Minister of Conservation inserted into the process as well. We know that the current Minister of Conservation is in fact more like a “Minister of Preservation” because he just does not want anything to be touched anywhere so I wonder whether members on the other side of the House or the Minister considers that these provisions in actual fact do cut across and place unnecessary constraint on those who hold the customary right. 
DAIL JONES (NZ First) 
: 
 Mr Brownlee has raised a point that suggests he has not understood the importance of 1840 and Dr Mapp in supporting Mr Brownlee in that comment indicates that he has not understood the importance of 1840 either and neither have the Maori Land Court judges. As Dr McHugh said to us and I refer to the Executive Summary 
— 
and I will quote just a small part of it because this is only a 5-minute speech: He said: “In clarifying that the High Court will have to develop a legal test and in doing so it will probably combine factual use and occupation (the Canadian factual-basis test) and the continuity of Maori custom (the Australian normative-basis test). Under both tests the crucial date is that of Crown sovereignty (1840).”  
We have to have a fixed date. It is the common law for goodness’ sake! How many times do we have to tell the National Party? It is the common law on which the Ngati Apa decision was based and which Dr McHugh spoke to us endlessly about. Dover Samuels understands. He is a practical man of the land and the sea. But these National Party people with PhDs and such like just do not get it. We have to have a fixed date. If one does not have a fixed date the Maori Land Court can keep changing the date to suit whoever comes along to it in accordance with whatever their tikanga just might have to be on the day. We could have transfers from 1840 to 1850 to 1870 to 1910 to 1980 to 2000. There could be endless movement and that is why there has to be a fixed time of 1840. That is what I proposed when the Labour Party made the suggestion in all good faith because it was with departmental support. It has to be 1840.  
I am appalled at the interference by the judiciary in this legislation with particular reference to the Maori Land Court. There is a clear constitutional convention that Parliament and the judiciary do not mix. There has been a breach of that convention by the judges of the Maori Land Court. I am concerned that some of those Maori Land Court judges might have a personal interest in this matter again making that breach of the constitutional convention even greater. No judge should come before a select committee as having made submissions. That is understood by everybody but it seems the Maori Land Court. The Maori Land Court has tried to influence Parliament by making a submission to change the 1840 rule. I want to know because I have been informed by a member sitting across there that one of those Maori Land Court judges’ tribes will benefit by a movable 1840 rule. Maori Land Court judges have no right to make a submission and clearly if they do they should disclose their personal interest. 
Hon Dr Nick Smith 
: What are you going to do about it? 
DAIL JONES 
: We had it taken out. Those members want it in. We do not want a movable feast. We could not want Maori Land Court judges having a conflict of interest and influencing the decision. The National Party seems to want that. I will be writing to the Chief Justice and to the Attorney-General. I believe that there has to be clear investigation of the Maori Land Court and its view of having a movable 1840. It is like a computer programme to put it in current terms. If one has a software programme one must not have a virus. But to move the date from 1840 onwards would be like a computer virus. At the end of the day the programme would be corrupted and it could come to a halt. One must have a fixed date. That is the point I made. That is the point made by Dr McHugh. It has to be certain. Mr Fairbrother made that point earlier on as well. There has to be a certain date and that is the answer also to the member for the Tainui area Nanaia Mahuta. There has to be a fixed date otherwise all sorts of people will be going to their cuzzies in the Maori Land Court and saying: “Hey bro we’ve done a deal with so and so and there’s a continuity.” and it will just go on forever.  
The whole idea of this is a certain date 1840 and I am absolutely staggered that Maori Land Court judges who also raised questions of judicial appointments want more jobs for the boys and girls. I have never heard of a judicial officer saying to a select committee that they want more jobs better conditions better pay and all those things that flow from it. That is unheard of. The matter should be considered at an executive level. Whoever is in charge of the Maori Land Court should be speaking to the Attorney-General or to the Chief Justice. He or she should not be coming to Parliament. He or she should not be talking about legal aid for example. That is a separate political matter. It is a policy matter and not a matter for the Maori Land Court. It is suggested that it wants more work to feather its own nest and make sure that it continues forever and a day. This is an absolutely appalling and disgraceful situation. The Maori Land Court needs to be fully investigated. 
METIRIA TUREI (Green) 
: 
 The Green Party has a large number of amendments on Part 3 as well—[ 
Interruption 
]—and we are looking forward to that are we not! A number of amendments refer to the provisions about how applications for customary rights orders will be decided. One of our amendments deletes clause 42 and replaces it with something that is substantially simpler easier to manage and more accessible but that also acknowledges that any customary rights have to be exercised in accordance with the law and that the law does apply to those areas. So it does not give complete free rein. 
Clause 42 as set out in Supplementary Order Paper 302 is a real concern. During the select committee hearings a lot of people were very worried about the possibility that resource consents could prevent Maori from getting a customary rights order because of the way that the tests for getting them were structured. It still is a serious concern. Will a resource consent for a very short period of time—perhaps 5 years—or even for 30 years disrupt interfere and effectively extinguish a customary right that has been in practice and in existence effectively for the last 500 or 800 years? The answer remains that yes a resource consent will do that even though officials assured us that resource consents would be excluded and that they would make sure that resource consents could not affect a customary rights order. 
The way that the clause has been structured to allow that to happen is by providing a myriad of little tests that Maori will have to meet. First they have to have been exercising the customary right since 1840; like Dail Jones said that makes perfect sense given that we are talking about customary rights here. Also the customary activity has to have been exercised on a particular piece of foreshore and seabed; of course that makes sense too. 
One criterion is that the customary right is not to have been prohibited by any enactment or rule of law; that is in clause 42(1). Resource consents are specifically excluded from affecting that. That means that a resource consent is not an enactment or rule of law that would prohibit the exercise of a customary right. On the face of it it looks like customary rights orders are protected from resource consents but in fact the test that the customary right has to have been exercised substantially uninterrupted since 1840 will be subject to resource consents and that means that resource consents can substantially interrupt the practice of that customary right. It does not matter whether the whanau the hapu or the iwi have been trying to exercise their right during the period that a resource consent has been in place and it does not matter that they had no control at all as to whether the resource consent would be approved by the local council—they could have had no culpability at all in that resource consent having gone ahead no responsibility for it and no capacity to stop it—that resource consent whether it be for 5 10 or 20 years can substantially interrupt their ability to carry out their customary right that they have been carrying out for 200 or 500 years and can prevent them from ever being able to get a customary rights order. 
It is an anomaly in the process. I do not know whether the Government intended it to be the case. The officials at the select committee clearly said that they did not want resource consents to interfere with customary rights orders but the way that the bill is structured means that they can interfere if they have physically prevented the carrying out in some form or another of that customary right in the form that it was carried out in 1840. If there was the capacity for that customary right to be broadened in some way or the rules around substantially the same exercise of that right or if there was allowance for periods of time when there was a lacuna in the exercise of that right because of external events occurring to that land or to that hapu then maybe this rule would not be such a problem. But with the way that it is structured now if a resource consent has stopped a hapu from getting access—even if it is only access to that land; even if it is not a resource consent over the foreshore and seabed itself but over access ways to it—they will not be able to get their customary rights order. 
Resource consents are prolific in this country. They are a critical environmental management tool that is used in all sorts of ways in all sorts of places. Hundreds and hundreds of whanau and hapu will not be able to get their customary rights because a resource consent has interrupted them. It is unjust. 
JOHN TAMIHERE (Labour—Tamaki Makaurau) 
: 
 With regard to Part 3 I make the following observations. I disagree quite vigorously with the New Zealand First member with regard to the criticism of the Maori Land Court bench. The jurisdiction of the Maori Land Court bench has increased somewhat in recent years. That bench rightly or wrongly has a very specific oversight requirement in terms of a totally different form of land tenure that is held in this country. As a consequence it is a court of special character and it does have some very special skills on board it. It has made a number of submissions in a number of areas as judges often do. I did want to stand and say that it is a very fine bench. It works under some significant constraints and I reject the way that it has been criticised in the Committee this afternoon.  
I shall move on to the jurisdiction of the court. The jurisdiction of the court has been clearly constrained in Part 3 relevant to customary rights orders. As to the point made by the Green member who has just resumed her seat I have struggled with the Green member’s contributions all the time in the Committee on this matter. The reason why I struggle is that I do not understand by example what she is actually talking about. Extant rights are protected—existing rights have to be protected. The reality is that if there are Resource Management Act consent issues in the foreshore and seabed domain so be it. Two wrongs do not make a right. The reality is that this particular part of the bill goes directly to the recognition of customary rights orders by way of orders from the Maori Land Court. On that particular basis I want to indicate that the underpinning benchmark if one likes for the finding of a customary rights order is the tikanga test. The tikanga test folds back also into Part 2—the territorial customary rights orders. One cannot have a territorial customary rights order unless there is a tikanga test that underwrites it. Every piece of land in this country that was not confiscated and handed back by way of Crown grant has a whakapapa that goes back to the Native Land Court and that whakapapa is determined solely on tikanga rights. What are some of those rights? They are: te take mataotao te take o te ahi ka te take marena and te take raupatu and so on and so forth. So Maori tikanga has actually founded the title system upon which many Kiwis hold their own land. The reality is that tikanga underwrites the customary rights orders.  
The fact that we have not had the opportunity to explore customary rights because of the finding in the Court of Appeal case that led to this legislation is a worry and a regret. But like all good Governments we have to bring certainty and closure. We have to put a process in place that will achieve a fair and just outcome in the event that common law rights do exist. Where they do exist this legislation puts in place a process that allows Maori to go to the Maori Land Court and to continue to explore whether their rights can be crystallised and whether they can provide the evidence to achieve that. So it is a very simple very clear process and it has a significant precedent base in the Maori Land Court. I support the Maori Land Court bench determining that matter. Because of its special character its special institutional memory and its special recording capability in respect of who holds mana in certain areas and how people actually achieved that mana that is how we can find a faster way of identifying and crystallising whether indeed customary rights continue to exist notwithstanding that the fall of law may have extinguished them. I do not know whether that is so because we have not carried on with that inquiry. So I commend this part of the bill to the Committee because it is a two-part process: territorial customary rights and customary rights orders. Having customary rights orders is obviously a significant plank and a base that can lead one into a territorial customary rights regime. That is part of the evidential track that we have here.  
I conclude by restating the points I wanted to make—that one cannot escape the tikanga test in asserting either a territorial customary right or in this instance a customary rights order. One cannot escape it. It actually underwrites the whole bedrock upon which Maori land law applies. I look forward to us asserting those rights as we continue to roll them out and evidence them. 
GORDON COPELAND (United Future) 
: 
 I would like to take a brief call on proposed new clause 41 “Limits to jurisdiction of Maori Land Court under this Part”. Before I go on with my remarks I would like to say that the wording under the proposed new clause 41 is identical to the wording in new Part 2A except that in that context it refers to the High Court. The point I want to talk about is therefore not limited to the Maori Land Court but applies with equal force to the High Court itself. Subclause (2) of the proposed new clause states: “A customary rights order must not be made in respect of an activity use or practice on the basis of a spiritual or cultural association unless that association is manifested by the relevant whanau hapu or iwi in a physical activity or use related to a natural or physical resource.”  
I would like to compliment the Government on that particular clause. It is a model clause that in my opinion should also be reflected in the Resource Management Act. I have been putting that proposal to the Government for some time and I understand that it may have a look at it. I hope the Government will choose to adopt it because it is a very important clause and a very important take on what can otherwise lead to quite unacceptable legal outcomes. I believe that Simon Upton the person who steered the Resource Management Act through the House has admitted that that Act is quite defective in terms of the way it deals with spiritual matters. The reason it does not work is that if we say the court can decide something taking into account a spiritual connotation then we immediately go off into the metaphysical. The question I raised earlier was this: how can any court any human jurisdiction possibly decide whether the spiritual truths—the metaphysical matters—that are being presented to the court are true? By definition they are totally subjective. They are personal to the beliefs of the particular applicants to the court. By the way when it comes to Maori applicants let us be quite clear that whanau and Maori in this country belong to a variety of different religions including some who adhere to traditional Maori beliefs. But Maori in their spirituality are by no means limited to those beliefs. Obviously there are many many Maori who are Christians Islamic and so on.  
The issue just comes down to the absolutely common-sense conclusion that we must try to reflect adequately in law anything that relates to the spiritual. I am not denying the spiritual for one moment—to the contrary. I am saying that we can ask a court to take a spiritual matter into account only if it is manifested in some physical or natural way. I am very very pleased to see that that wording has now been adopted. To give an example we can talk about a place of worship. A place of worship obviously has a physical presence of some sort—it is on the ground—so it can be taken into account in establishing a customary right and can therefore lead to a customary right order. If there is something physical—something natural—in existence we can do that. I want to commend the Government for picking that up. As some other people have said earlier in this debate in some ways in this bill we are amending the Resource Management Act because essentially a lot of this issue is about the management of resources on the foreshore and the seabed. So I do express the hope that clause 41 will set a good precedent and that we will see the same wording picked up in the forthcoming review of the Resource Management Act. 
Hon MARGARET WILSON (Minister in charge of Treaty of Waitangi Negotiations) 
: 
 I rise to support this part of the bill and also the amendments on the Supplementary Order Paper. I feel it may be useful to go over again the origins of this part of the legislation which have already been touched on by my colleague John Tamihere. The essence of the action to the Court of Appeal was to establish a route whereby Maori customary rights could be determined and recognised formally by the court and specifically by the Maori Land Court. Although those who have read the judgment know that there were eight or nine questions the Court of Appeal really only addressed itself to the question of the appropriateness of the Maori Land Court to be the jurisdiction to determine Maori customary rights. On that question it was quite clear. Therefore the question as to why that is happening would seem to me to be obviously answered by the fact that the Court of Appeal directed that there should be an increase in the jurisdiction of the Maori Land Court in that respect.  
Once that was to be actioned through legislation the question became one of how one would express Maori customary rights. Proposed new clause 42 referred to by the member from the Green Party sets out the test as it is understood and accepted in the common law world. I know there has been a tendency to try to change that test and as such to move away from the origin of those rights which are firmly based in common law customary rights. But the fact remains that their legitimacy and their recognition in the law has to go back to that origin.  
It is true as the members of the Fisheries and Other Sea-related Legislation Committee have indicated in their various contributions in the Committee that there is some difference as to the exact criteria used in determining customary rights in the various jurisdictions and particularly in Canada and Australia from which we take our precedents. The reason why we do not have a strong jurisprudence on customary common law rights is of course due to the Treaty of Waitangi. In fact most of the rights pursued have been founded upon breaches of the treaty. However that has not meant that there have not always been in existence as a residual right the customary common law rights. This legislation is a recognition of those rights for the first time as Maori colleagues have repeatedly said within the context of legislation passed by this Parliament. In that context they do get an added recognition. They get a formality and a clarity and they get a process for enforcement in way that is understood by all parties who will be affected by them.  
The reason why there is the reference to 1840 is almost so obvious that one is embarrassed to actually restate it. I am constantly amazed—and I know I will apologise for this comment—as to how that member wishes to share his ignorance in this area with more people than perhaps is decent. It just seems that 1840 was in fact the significant time. It was at that time that the agreement was reached that did affect the nature of the customary common law rights. By definition without the treaty the whole of the jurisprudence in this country for Maori in terms of addressing breaches would have been based on common law customary right. But because of the treaty and because of the process of extinguishment that in fact is a residual if one likes category for legal action. However it has been seen and is perfectly understood as being a whole new source of jurisprudence that we can recreate in our likeness without any reference back to its common law roots. This legislation says no its legitimacy must be founded in those roots and that is why those criteria are set there and the essence of those criteria is tikanga Maori. One cannot in fact establish the nature of a common law customary right without reference to tikanga Maori and that is why that is explicitly stated within the bill.  
On another matter that the member for the Greens raised I also am puzzled because it seemed to me that clause 42A(3) would address her point. 
RODNEY HIDE (Leader—ACT) 
: 
 That was the former dean of Waikato law school who was speaking. It has puzzled us that—we could not understand why—Hamilton law graduates could not get jobs outside the grievance industry but now we understand it given that legal reasoning. As I listened to Mr Copeland I found myself in strange agreement with him. He was complaining about the fact that this bill puts the metaphysical dimension into legislation and that the law should not rule on that. I found that to be absolutely true. Of course I found it interesting that that view came from Mr Copeland who I understood was here in Parliament in order to put the metaphysical dimension into our legislation and into Government policy—as long as it is the right metaphysics I guess.  
I go back to Mr Tamihere’s speech. It is very very clear that that member focused at university on tax law rather than on any jurisprudence or constitutional principles because how wrong could a man get? If the Government was proud of this legislation why did it present the Supplementary Order Paper just yesterday? Why is the Government racing this legislation through under urgency in a couple of days? If the Government believes that this legislation will withstand scrutiny why not take the time for that? It is because the Government knows it does not withstand scrutiny. I know that Nanaia Mahuta agrees with me on that; she is not going to vote for this bill at the third reading. 
Rt Hon Winston Peters 
: She is. 
RODNEY HIDE 
: No no. She is a person of principle. We know that she will not vote for it. We know that John Tamihere does not agree with this bill. He is just voting for it—[ 
Interruption 
] What does he say? 
John Tamihere 
: I’m voting for it. 
RODNEY HIDE 
: Oh he says he is going to vote for it—just as he said he would not take the golden handshake.  
We have not changed our view of this legislation and what we need to do is to draw the dots together. Let us take all the dots join them together and see what is going on here. The reason that Maori people are upset over this bill is a sound one. They were going through a process through the courts of New Zealand to determine what their customary rights were. They were absolutely entitled to do that. 
Hon Dover Samuels 
: They can do it under this bill. 
RODNEY HIDE 
: No they cannot do that. If they could still do that why does it need legislation? They were denied the opportunity to do that and the ACT party says that is wrong. We felt that the rights of Maori as the Court of Appeal stated were quite circumscribed—the odd reef and the odd burial site. We see no objection to Maori exercising their rights. We see no reason why they should be denied that opportunity. So Maori are upset that the Government came along and denied them their right to have their day in court. [ 
Interruption 
] Dover Samuels is yelling out and New Zealand First is yelling out that Maori do have those rights. Let us just see in this legislation what their rights are. Well they can go to the Maori Land Court and they can go to the High Court and the court can determine—what are they called—customary right orders. [ 
Interruption 
] I have to tell that member—what is his name? Darren Hughes. I have to tell Darren Hughes that when people go off to the court to have their customary rights determined they do not get a customary rights order. They get the customary rights they are entitled to.  
Hon Dover Samuels 
: Did you get a customary rights order? 
RODNEY HIDE 
: I know that Dover Samuels does not like to hear the truth about this bill. Maori can go to court and the Maori Land Court and the High Court are to determine customary rights orders. 
Hon Dover Samuels 
: Blowhard! 
RODNEY HIDE 
: He says I am a blowhard. Let me ask Mr Samuels this: how much of the foreshore and seabed in his view will be subject to a customary rights order? 
Hon Dover Samuels 
: It depends on how many whanau and hapu take their applications to the Maori Land Court and the High Court. 
RODNEY HIDE 
: Oh! So that is the answer. And if Maori apply do they automatically get a customary rights order? I am asking Mr Samuels. If a whanau hapu or iwi applies does it automatically get one?  
Hon Dover Samuels 
: It has to go to the court. 
RODNEY HIDE 
: How much of the foreshore and seabed could that apply to? 
Hon Dover Samuels 
: I can’t determine that. It has to go to the court. 
RODNEY HIDE 
: He cannot determine that. Exactly! Is that not the point? We know Mr Tamihere is on record as saying it could be up to 10 percent of the foreshore and seabed of New Zealand. I say and John Tamihere says it could be a lot more. That is the problem with regard to this bill. 
RUSSELL FAIRBROTHER (Labour—Napier) 
: 
 That was a most interesting exposition of one of ACT’s views on this bill. The other ACT view I quite like is contained on page 15 of the report of the Fisheries and Other Sea-related Legislation Committee where it states: “It is our view that this bill insults the rule of law by failing to uphold the sanctity of property rights …”. Well what is a customary rights order? It is bundle of rights. A customary right is a bundle of rights that varies from hapu to hapu from use to use. It is a bundle of rights that is non-exclusive and not necessarily territorial that does not require contiguous land and that requires physical activity as well as maybe a spiritual connection.  
The rights are in fact rights that exist and that have existed since at least 1870 in the case decided by Chief Judge Fenton in the Kauwaeranga case. Unfortunately by a drafting accident it seems in 1909 they were removed from legislation and in 1993 they were even further blocked by yet another drafting mistake.