Shirley Ken: Foreshore and Seabed Bill Resource Management (Foreshore and Seabed) Amendment Bill — Third Readings 
Shirley Ken: Foreshore and Seabed Bill Resource Management (Foreshore and Seabed) Amendment Bill — Third Readings 
[Volume:621;Page:17194] 
Hon KEN SHIRLEY (ACT) 
: 
 This legislation is unnecessary precipitate an overreaction fraudulent and based on smoke and mirrors. It has already been called the “Floorshow and Rocky Bottom Bill” and that is about the limit of its worth.  
The ACT position from the outset has been clear and I think that other parties in the House have had the grace to acknowledge that. Our position has been clear and robust because it is based on the sanctity of property rights and due process of law—which are really what this legislation has overridden. The ACT party convened a high-level seminar shortly after the Court of Appeal decision in 2003 and we had constitutional experts and leading kaumatua there. We had a full-day discussion that greatly assisted us in coming to what has been a very consistent and robust position.  
What we see are the unintended consequences of Te Ture Whenua Maori Act of 1993. We had the Court of Appeal decision after a long process. The NgatiApa case decision 
from the Court of Appeal was not particularly complicated; it was quite clear. It simply said that in some instances—and it even indicated that they could be isolated and somewhat rare and remote—there may exist a right for some iwi to pursue their right based on customary rights to acquire title. It was nothing more and nothing less than that.  
It is true that at the various hui that were held around the country various Maori did overreact with some believing that they had full exclusive and undisturbed possession to the heavens and beyond and back to Hawaiki. There was a lot of rhetoric but we should not be surprised by that. Any group would do that. But the point is that this Government has been complicit in the problem in both ways.  
The remedy was quite simple from the outset. It is contained in the Foreshore and Seabed Bill in schedule 3 where there is a nice little clause that does it all. It amends Te Ture Whenua Maori Act by repealing the definition of land in section 4 and substituting the following definition: “ ‘land’—(a) means—(i) Maori land General land and Crown land that is on the landward side of mean high water springs; and (ii) Maori freehold land that is on the seaward side of mean high water springs; but (b) does not include the public foreshore and seabed”. That simple little measure would address this whole mischief of what is widely regarded as the unintended consequences of that Te Ture Whenua Maori Act. Instead we have gone through this incredible debate not just in Parliament but countrywide. There was a lot of anxiety and uncertainty associated with that when that measure is so simple. It is based on property rights and on due process of law.  
The other action that the Government could have taken was to appeal the Court of Appeal’s decision to the Privy Council. It could have taken it to the Privy Council. We know why it did not like to pursue that option: it was right in the middle of disassociating New Zealand from the Privy Council and that would have been a bit of an embarrassment and a back-down. So the Government did not pursue that option that was available to it.  
But the real mischief created in this legislation and where the angst and anguish will live with us for future generations is this new regime that it creates. People should be under no doubt or illusion whatsoever that we are creating a new regime to manage the foreshore and seabed. It is racist legislation. It is not racist to uphold Maori property rights—absolutely not. The ACT party would far rather have seen clear specific respected and clearly understood property rights established. If in the public interest the Crown were subsequently to resolve that it needed to expropriate those rights in certain circumstances it could always do that. The Crown often expropriates private property rights in the public good. It should do so rarely and only when necessary but it does have that right and it must pay full compensation when it takes such action. So this Government was not in any form of bind whatsoever.  
What it really wanted to do all along was to grab that wonderful socialist tool the Resource Management Act and put it on steroids—that is what the Government has done. It has put the Resource Management Act on steroids and now we have imported a whole lot of spiritual tikanga provisions into what was always intended to be the sustainable management of natural and physical resources. Now it is the confused management of metaphysical and spiritual matters.  
That is the inherent problem with the Resource Management Act as it exists now before this amendment is passed. I need only remind members that the hold-up of work on State Highway 1 at Meremere was because of a taniwha. There is endless cost and extortion going on up and down this country by various groups exercising a right and a privilege that has been given to them. That is the basis of the problem. It is racist when a right or privilege of control and regulation is conferred on a group of people based on their race or ethnicity—or more particularly on the date that one of their ancestors or possibly more happened to arrive in this country. That is what we are doing as a nation and that is deeply racist.  
It is not racist to recognise customary rights and give proper title where appropriate. That would be a very non-racist policy. But no instead we are conferring on a group of people a privilege that gives them extraordinary powers under the Resource Management Act to hold the country to extortion. It virtually invites that extortion as we have seen for a number of years now under the Resource Management Act. Many New Zealanders find it uncomfortable to talk about that. A lot of developers know that they just have to pay up and shut up because that has become the norm. But that does not make it right and that is what we will now see up and down this country.  
I have already mentioned the example of the taniwha at Meremere which had a lot of publicity. In this debate we have had a lot of reference to the Wakapuaka Estuary in Delaware Bay which I know very well. I worked there with a bunch of scientists way back in the 1970s doing tidal surveys and aquacultural marine life surveys. It is a marvellous place. There are urupa there and we certainly respected them. They are well understood in the local community. But a gate has been put up and access denied over the foreshore and seabed for four-wheel drive vehicles to launch boats.  
The difficulty is that the local iwi who are denying that access are saying they do not like it because it disturbs their urupa. How does that explain the fact that if one pays $100 one can get a key? That is established fact. That is the problem when there are not clear property rights and instead when there are nebulous powers privileges and rights to exercise powers that are not well defined under a tool as deficient as the Resource Management Act. It is that old socialist realisation of the third-way people. One does not have to own it any more in the classical socialist sense; it can be done by control now. That is really what this legislation is all about; the guts of this legislation is an amendment to the Resource Management Act. It is bad legislation and it will be divisive for New Zealand society.