Fairbrother Russell: Foreshore and Seabed Bill — In Committee Speaker Recalled In Committee 
Fairbrother Russell: Foreshore and Seabed Bill — In Committee Speaker Recalled In Committee 
[Volume:621;Page:17016] 
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.