Turia Tariana: Foreshore and Seabed Bill — Procedure Second Reading 
Turia Tariana: Foreshore and Seabed Bill — Procedure Second Reading 
[Volume:621;Page:16946] 
TARIANA TURIA (Leader—Maori Party) 
: 
 The last time that I was granted leave to speak on the Foreshore and Seabed Bill it was on a defining day in the history of this nation. The nation will not forget the 45000 who marched to Parliament to describe their utter outrage and grief at the introduction of the bill. And the Prime Minister chose to talk to a sheep. The one thing we have in common with Shrek is that we were both fleeced. We were fleeced by a bill that will extinguish another Maori inheritance this time to the foreshore and seabed—an inheritance that is recognised in tikanga.  
 Today is another such defining day in our history—a day when a travesty of justice is being supported into law. Whatever “rights” or “redress” it purports to offer the fact remains that the Foreshore and Seabed Bill takes away the foreshore and seabed from tangata whenua. After 1840 most of the other whenua was of course confiscated under various laws but Maori rights in the foreshore and seabed were never actually extinguished. The bill confiscates what little Maori have left by default. The colonising heritage took from our people their land their whenua their moana with overt violence in the 19th century. Over the last century and more the alienation has become more insidious through the influence of lawmakers. 
The court has found that the assumption of sovereignty in Aotearoa in 1840 means that in accordance with long-established common law title was subject to the pre-existing property rights of tangata whenua. Maori customary title is no different from that of any other common law title which continues to exist until it is extinguished. That is why we have this bill—because it can be extinguished only by an Act of Parliament. What the Waitangi Tribunal found was that the indigenous customary title has always existed. Indigenous customary title is recognised by common law and affirmed by the Treaty of Waitangi. Both the Maori Land Court and the Court of Appeal agreed that the concerns and claims of tangata whenua concerning the seabed and foreshore should be heard. Instead what we have seen over these last 18 months is a whirlwind ride whereby the Government is acting in a reactionary manner attempting to change and override common law the Treaty of Waitangi and the decisions of our nation’s courts and most important of all attempting by proclamation to override the interests of our people. 
I was interested to hear the word “integrity” being floated by the first speaker in this debate. The Deputy Prime Minister should be aware of the definition of “integrity”: the quality of having strong moral principles; the state of being whole; the condition of being unified or sound in construction; and internal consistency or lack of corruption. Our contention today is that this Government in this bill fails to achieve any of these qualities. 
If we had a Government with strong moral principles we would see demonstrated the paramount principle—the principle of justice. That is what we are being denied. Instead the Government tried to mislead the nation by plucking four concepts out of the air and calling them principles. It talked of the principle of access. Our people have always been clear in stating that there has never been any intention to deny people access to the beaches or those areas. It talked of the principle of regulation yet the authority for regulation has been with local councils regional councils and the Department of Conservation; the question of the Crown’s role in regulation has never been questioned. It talked of the principle of protection and what it really meant was that the protection of private property rights would be sacrosanct—protection of private investors of harbour companies of ports but not of the guardians those who for centuries have safeguarded and cared for the takutai moana. It talked of the principle of certainty and the one certainty we have is that there is no way that the Crown is acting in the interests of whanau hapu and iwi. The certainty is a racially divisive bill because in fact the only groups that have certainty are the private property owners. 
Integrity it would seem is also about the state of being whole. The state of being whole is not to pit one group of people against another. I was fascinated to hear Mr Peters say tonight that tangata whenua have New Zealand First to thank for this bill tonight. He spoke also of his belief that this bill was in the interests of all of the nation. Let me be clear: Mr Peters’ interests are purely and simply for the New Zealand First constituency and it was a very clever strategy of Labour to get someone of Winston Peters’ calibre to take responsibility for aspects of the bill that Labour knew were behind the great flight of support for it from the Maori seats. In doing so Labour is trying to move the outrage of the people on to the Maori members of the New Zealand First Party who of course do not stand in the Maori seats. In taking out ancestral rights in limiting customary right to an activity Mr Peters can delude himself into thinking he will be thanked by tangata whenua but we know better. Customary right is not an activity. It is not about being limited to collecting hangi stones and launching waka. It is a development right. It is a property right. The foreshore and seabed have always been open to use and enjoyment for all New Zealanders. Our rights are longstanding. Any extinguishment of those rights is raupatu. 
The third aspect of integrity is the condition of being unified or sound in construction and as we have seen in Mr Horomia’s press release and in his speech tonight this Government is far from being unified. Mr Horomia used the word “fear”. The Minister protests too much. His plaintive plea that Maori have nothing to fear with the passing of this legislation recognises that he knows too well the reality of what our people think of this bill. The reality is that our people have almost universally rejected both the policy and the bill. And these are all of our people including the so-called “haters and wreckers” or the academic elite those on the gravy train the cunning Pakeha mainstream churches—however much the Government tries to dismiss us. The Waitangi Tribunal found the bill was inconsistent with the text in the principles of the Treaty of Waitangi. The United Nations Committee on the Elimination of Racial Discrimination requested that the Government respond to the allegations that the bill racially discriminates. The United Nations Universal Declaration of Human Rights sets the benchmark against which the actions of Governments may be judged. Article 17 of the declaration states that “no one shall be arbitrarily deprived of his property” and it is clear that unilateral extinguishment of Maori property rights as envisaged in the bill is an arbitrary deprivation of our property interests. 
The final component of the definition of integrity is the question of internal consistency or lack of corruption. Much has been made of the amendments that are supposedly about creating a day in court. Under the proposed legislation territorial customary rights will be established through the High Court—a compromise position that is meant to placate tangata whenua. A day in court is almost an impossible dream for most Maori as the costs of taking this case through the court are exorbitant—tens of thousands of dollars. So most of our people will be excluded. The Maori Party is adamant that this Government should have treated tangata whenua in the same way as it does all other New Zealanders and allowed due process. The courts must be allowed to do their job and reach a decision based on the law of the land. The nation tonight knows that the Government chose to interfere in the due process of law when it chose to legislate this issue. And we know that as soon as the legislation is implemented our people will lose all that they have lived off for the past 1000 years. 
It could have been so different. The Government could have considered amendments to Te Ture Whenua Maori Act. Amendment of one section in the Act could have rendered customary land inalienable and would therefore have provided the Crown with security in terms of the foreshore and seabed remaining in New Zealand ownership. The Government could have chosen a conversation a meaningful and honest conversation a conversation based on listening to each other on integrity on the principle of justice—not one squashed into a 20-minute submission that could be ignored or not heard. 
Dr WAYNE MAPP (National—North Shore) 
: 
 Tonight we have an arrogant Government. It is a Government that has tabled a 67-page Supplementary Order Paper as it calls it. In effect it is a complete amendment Act. It is a document that no one in the public has seen yet—no submitter no media outlet no one. The public will not have the opportunity to think about it to talk about it or to write or telephone their members of Parliament about it. Instead the Government intends to ram it through over the next 20 hours or so essentially without debate—without public input. There was an opportunity for the Government—it was given a quite reasonable proposition I thought—to table that Supplementary Order Paper today and to have us deal with this issue in a week’s time. Anyone would think that would be a reasonable way to do it in the circumstances. Even then the Government simply refused. It does not want to debate it and the reason it does not want to debate it is that it is scared. The Government is scared of the debate. 
Let me be clear: National is committed to the foreshore and the seabed belonging to all of the people of New Zealand in Crown ownership. That is our birthright and that should be guaranteed. The initial statements of the Prime Minister and the Minister of Justice 18 months ago were correct because they proposed a simple bill—a bill of no more than two pages a bill that would have in fact guaranteed Crown ownership on behalf of all New Zealanders. That is our birthright. What we have seen in the last 18 months is this: raised expectations false hui and a distortion of reality by those members in the Government as to how they would protect people’s interests and rights. They were false hopes. They will be seen to be such. 
The simpler and fairer way was Crown ownership by way of a simple bill. National had made a clear undertaking: if that had been presented 18 months ago we would have supported it. New Zealand First members—and I have heard their interjections—say that there is guaranteed Crown ownership. That is what they say. In fact what they have done is strip the substance out of that—totally strip the substance. I say that because we have these kinds of concepts: customary rights orders for Maori which under clause 35 are to be determined by the Maori Land Court; territorial customary orders to be determined by the High Court—and the Government goes around boasting that they have been strengthened—and finally customary rights orders under clause 61. Each and every one of those measures adds up to denying the general public their rights because what they do is deliver particular rights to particular people. That is wrong. We will see in fact over time a steady erosion of the public interest and nothing that the New Zealand First people say can deny that fundamental reality. 
I wish to make a prediction. Within a few years some parts of the foreshore and the seabed—the fee simple—will be transferred to Maori claimants. The Government might like to deny that and I wonder whether it will take the opportunity to deny it. I guarantee that it will not. The Fisheries and Other Sea-related Legislation Committee was told by Government officials that the whole purpose of absolute Crown ownership as set out in clause 11 is to enable the transfer of that fee simple title to Maori as part of settlements. The officials said that they had to do that—and I assume it was on instruction from the Minister—to undertake those settlements. In short unless one owns it one cannot transfer it. It is a simple proposition. That is the Government’s secret agenda and that is in fact precisely how it has gained the support of the Maori members. It is absolutely clear that the foreshore and seabed of the West Coast harbours Te Araroa on the East Coast other parts of the northern part of the East Coast and the Karikari Peninsula in the far north will be transferred to Maori as part of settlements. 
The precedent is the Rotorua lakes settlements. For a long period of time almost the entire last century those lakes clearly were in Crown ownership on behalf of all New Zealanders. In fact Te Arawa voluntarily transferred that as part of the settlement— 
Hon Ken Shirley 
: And received valuable consideration. 
Dr WAYNE MAPP 
: —and received valuable consideration. What the Government is doing now is transferring the fee simple—and let us be clear that it is not customary rights and not territorial customary orders; it is the fee simple—to the Te Arawa people. That is the intended precedent for the West Coast harbours much of the East Coast and parts of the far north. The Minister might deny it; we heard in this Parliament the Prime Minister say that is what the Government intended to do. 
Do members know what the protection is? The protection is: “Oh well it will take a special Act of Parliament.” Well no doubt that is true but that is precisely what is provided for in the bill. There is provision for special Acts of Parliament. Each and every settlement of Maori claims has always been preceded by a special Act of Parliament. So we know the real agenda of this Government. We know on this side of the House just how the Government gained the support of its Maori members. It intends to transfer to the Maori claimants parts of New Zealanders’ birthright. 
I would say this. The Government has totally and completely ignored the interests of the people of the North Shore. I just want to recite the history of this matter. I see the member for Northcote over there. She knows about it because I have spoken to her at length about it. She is in fact a former mayor of the city. The city of North Shore actually won a High Court decision that a marginal strip be provided at the Bayswater Marina. That strip was supported by the vast majority of residents. That case went to the Court of Appeal. That appeal is now stayed pending this decision. Would it not be a reasonable thing to allow that case to proceed and whoever wins—be it North Shore City or the Bayswater Marina—that would be the outcome? That is what people mean by fair justice. 
Why do I draw a distinction between that case and NgatiApa? The Government at least claims that this bill is a sort of reflection of the NgatiApa case. In the North Shore City case all that the Government has done is simply strip away the decision and leave nothing in its place. In fact what the Government has done is this. It has said that the Bayswater Marina is the winner by legislative fiat. We have had the Prime Minister go to the North Shore to the Takapuna point—Fort Cautley. She said that it should be public land. She campaigned in North Shore on that. Ann Hartley campaigned on it. It was transferred to the public. We see the complete opposite for Bayswater Marina; the Government has said that it shall not be public land that it shall belong to the Bayswater Marina by way of a lease. That was the result. I will be putting up an amendment to allow that Court of Appeal case to proceed. In the way that our courts work a decision will come. People have a right to have their cases heard and decided—and that decision will be accepted either way—rather than this running over the top of the interests of the residents. It is a travesty and the only answer that the Government gives to the people of the North Shore is to rely on the Resource Management Act which shall be their protection. It is simply not good enough. 
I acknowledge in this particular instance the member for the Green Party who has also been dealing with this issue. I have to say this issue was brought to the attention of the Government and the New Zealand First party some weeks ago and they have ignored the residents of the North Shore. 
Hon MARGARET WILSON (Attorney-General) 
: 
 The Foreshore and Seabed Bill is indeed an important bill for the consideration of this House. It addresses an area of the law that has long been uncertain: the application of common law customary rights and title in the New Zealand context. The bill clarifies that although the foreshore and seabed of New Zealand is to be held in perpetuity for the benefit of all New Zealanders the customary rights of Maori in the foreshore and seabed are also to be recognised. Furthermore the bill provides a procedure for Maori to follow in order to establish whether in a particular situation those customary rights still exist or have been extinguished. The bill therefore recognises and balances competing rights and interests. It achieves a balance through an application of the principles of access regulation protection and certainty as outlined by Dr Cullen.  
This bill has generated much heat but little light on occasions. Much has been made of the need for more consultation and more time to delay a decision. It is important to state that this bill has been through an extensive process of public and parliamentary debate. Before the bill was even introduced a discussion paper was debated at 10 hui around the country with Ministers and members of Parliament. A total of over 4000 written submissions was received read and listened to. There was also an urgent Waitangi Tribunal hearing which was supported by the Crown’s petition for urgency in that hearing. At that hearing it is interesting to note that the claimants were represented by 35 lawyers so that their case could be fully heard. The Crown of course was represented by four. The report of the tribunal did lead to changes in the bill that was eventually introduced into the House the most important of which was the statutory recognition of the High Court’s jurisdiction to hear claims relating to territorial customary rights.  
The bill when introduced to the House received as we have heard 4000 submissions. I think that it is important however to place that in context. Although as I have said it is an extremely important bill it is useful to be reminded in this context that the Civil Union Bill received 6419 submissions the Employment Relations Bill 17000 submissions and the Smoke-free Environments Amendment Bill 8053 submissions. Although this is an important issue Parliament is the place where such issues are heard determined debated and clarified and where laws are made. It was therefore disappointing that the Fisheries and Other Sea-related Legislation Committee could not bring itself to include in its report back a consideration of those submissions thereby showing respect to those who had made them by having recommendations for amendments to the bill that were based on the thoughts of those who had appeared before the committee. However that was a decision for the committee to make. Therefore it became the responsibility of the Government to introduce Supplementary Order Paper 302 in the name of the Hon Dr Michael Cullen recommending changes that reflected the decisions made. The assistance and response of New Zealand First must be acknowledged in that context and in particular the contribution that has been made to the Supplementary Order Paper by Mr Dail Jones.  
It is my pleasure then to speak this evening in the second reading debate on this bill and to refer to some of the most important changes that are recommended in the Supplementary Order Paper since it is apparent from the speeches already that it has not been read. The changes include first a clarification of the objective and purpose of the bill making it completely clear that the foreshore and seabed is preserved for all New Zealanders as well as preserving existing customary law rights.  
Secondly ancestral connection orders have been removed as they were widely criticised by many submitters as imposing unnecessary cost—not only financial cost but cost in terms of the mana of those who felt that they should not have to come before a committee a court or another body to establish their connection to the foreshore and seabed. That was acknowledged by the Government but because the select committee could not bring itself to agree on that issue the Supplementary Order Paper reflects the fact that the Government having listened to those submitters has removed the ancestral connection orders.  
Thirdly the new criteria for the exercise of the jurisdiction of the High Court are also clarified in the light of the submissions that were made. Such criteria now include the need for applicants to demonstrate that the claimed rights existed in 1840 that they have continued to exist in a substantially uninterrupted manner that they have involved the exclusive use and occupation of a particular area of the public foreshore and seabed consistent of course with public rights of navigation and that the applicants have had continuous title to a significant part of the dry land contiguous to the area.  
Fourthly the Supplementary Order Paper acknowledges the concerns of submitters on the nature of redress and that important point was made by many submitters. It provides therefore new provisions for redress of territorial customary rights. Successful applicant groups are now able either to enter into discussions with the Crown for the purpose of negotiating an agreement as to the nature and extent of the redress to be given by the Crown or to apply for an order from the court that gives effect to the establishment of a foreshore and seabed reserve. Such a reserve will be held in common use and benefit for the people of New Zealand and will acknowledge of course the important role of the exercise of guardianship by the applicant group. It is important also to acknowledge in this context that it is for the claimants to decide which route they wish to take in terms of gaining redress that is appropriate for them.  
This legislation is very much the result of New Zealand’s particular historical circumstances. It has been constructed after a lot of engagement and discussion both within the Government and between the Government and the wider public. The story of its making tells us much about the constitutional architecture of this country. In the end however the bill expressly balances the various rights of all New Zealanders. It balances the rights to continue long-established customary practices relating to proportions of the public foreshore and seabed with rights of access to public foreshore and seabed for recreational purposes and under appropriate controls for commercial purposes. I commend this bill and the Supplementary Order Paper to the House and I look forward to the debate on them.