Calvert Hilary Jane: Marine and Coastal Area (Takutai Moana) Bill — In Committee Speaker Recalled In Committee 
Calvert Hilary Jane: Marine and Coastal Area (Takutai Moana) Bill — In Committee Speaker Recalled In Committee 
[Volume:670;Page:17289] 
HILARY CALVERT (ACT) 
: 
 In Part 2 of the Marine and Coastal Area (Takutai Moana) Bill I will speak about clauses 11 24 and 27. I will start with clause 11 which we have heard a bit about already as members have been talking about the special status of the common marine and coastal area. Clause 11(2) states: “Neither the Crown nor any other person owns or is capable of owning the common marine and coastal area”. My question—and I would like the Minister in the chair the Attorney-General to take a call as clearly we would like other questions to be answered tonight too—is whether if the Government does not own and is not even capable of owning an area that area is still part of New Zealand at that point. Although the bill seeks to clarify this issue by stating that this legislation does not affect the sovereignty of New Zealand it is certainly unclear how an area of some hundreds of thousands of square kilometres which has been owned by the Crown since the territorial waters limit has been 12 nautical miles can become an area that the Crown neither owns nor is capable of owning. 
Clause 24 talks about land in the common marine and coastal area and land above the line of mean high water springs. During the hearing of submissions in the Maori Affairs Committee much was made of the idea that 12243 private land titles exist in the foreshore and seabed. That figure is correct but it is quite misleading. It has been argued quite reasonably that if we are happy to give freehold titles to many other people in the foreshore and seabed then why should we not allow freehold title to go to Maori. ACT believes that it is for the courts to decide on the basis of common law property rights the extent of any property rights granted whether they be freehold title or otherwise. 
In dealing with this bill however it is important to understand that only 48 freehold titles have been issued in the foreshore and seabed. The rest of those 12243 titles have been created by legislation and the forces of nature. Freehold title abutting the edge of the foreshore has for many years been defined as ending on the seaward side at the mean high-tide mark. When a definition was made of the foreshore and seabed the landward edge was defined as the “mean high-water springs” which is a tad further away from the sea than the mean high-tide mark. As a result this definition captured a sliver of land in about 11000 titles and redefined those titles as part of the foreshore and seabed. Another thousand or so titles have become part of the foreshore and seabed as a result of erosion. The edge of the land in those freehold titles has been taken by the sea leaving a part of the title under the sea and therefore part of the foreshore and seabed. 
So apart from the titles that the Government has redefined into the foreshore and seabed and the titles that nature has taken into the sea there are only 48 titles that have been granted to the foreshore and seabed in the whole of New Zealand. Those titles cover a tiny 2.6 square kilometres of our hundreds of thousands of square kilometres of territorial seas. 
I come to clause 27. After ACT pushed the Government into accepting free access it was not guaranteed in the original draft of the bill. The Attorney-General’s proposed amendment guarantees free access only for the individual an expression that typically has a limited legal definition. When my colleague John Boscawen asked the Attorney-General whether this guaranteed everyone free access he true to form could not do so. Any member of the public would look at this clause and wonder why only the individual is protected. Why not insert the word “group”? Can we imagine a group going to the beach and being told that they must pay for access? I can because the people who threaten and cajole the public now will continue to do so once this bill is law. The Attorney-General has just made it a whole lot easier for them to do so. ACT has heard accounts of people who while having picnics taking wedding photos or just going for a walk have been threatened or told to pay up. Nothing in this clause will discourage that from happening in the future. ACT has put forward a Supplementary Order Paper that makes it clear that anyone and everyone should be able to enjoy our foreshore and seabed free of charge. 
The Hon David Parker made a comment yesterday about this clause as did the Minister. Part of the confusion that the Minister may have had seems to come from the unfortunate use of the word “access”. For most people the idea of access encompasses the idea of movement across something or to something. But this bill is not about providing access to the foreshore and seabed. The entire clause concerns what may be done by those who are on the foreshore and seabed. 
I come now to the ACT Party—and this is where the Hon David Parker was going yesterday when he asked us a question. He asked us why if we are the party that wants to support property rights we would deny the holder of a customary marine title the ability to charge. The ACT Party supports the right for anyone to go to court— 
Kelvin Davis 
: No he said “use”. He said: “use the foreshore.” 
HILARY CALVERT 
: Sorry I am corrected. The Hon David Parker said that we were against people charging to use the foreshore. We support the right of anyone to go to the High Court to have a determination of their common law rights. This bill takes away those rights. It allows for the possibility of a very different and novel sort of property right one that does not need to be tested by the courts. It takes away the right to go to court for the establishment of common law rights and it replaces that with the right to go to court in a limited and very different way. The novel sort of property right that the Minister seems determined to create is one that does not need to be tested by the courts and one that gives rights that override the resource management rights of others. 
We in the ACT Party support and defend the rights that the court provides including the right to charge and the right to deny access to others if the court so determines. We do not support the ability to go to the Maori Land Court which was mentioned earlier as being the appropriate place to go to. For the ACT Party the High Court is the right place. These rights are common to everybody; they are common law rights. They are not rights that are specifically to do with Maori in New Zealand. The property that we are discussing—the whole purpose of the bill—is the total property in New Zealand— 
Hon Georgina te Heuheu 
: What’s wrong with that? They’re still rights. They’re still legal rights. 
HILARY CALVERT 
: They are legal rights but they are not rights that are in some way only the interests of Maori. Those rights are the interests of everybody in New Zealand. They are appropriately transferred if the courts decide on that. The Treaty of Waitangi gave everyone in New Zealand the ability to go to the courts in the same way that British subjects could. The courts that we go to—the whole lot of British subjects in New Zealand—are the courts that the High Court system is part of. If we go only to the Maori courts for those rights then we are talking about a huge chunk of land that despite the fact that the Government has disowned it and for some reason does not feel comfortable about owning any longer New Zealanders still consider they have an interest in. That is not just Maori New Zealanders but all New Zealanders. It is a strange thing that the Government wants to—