Brownlee Gerry: Questions for Oral Answer — Questions to Ministers 
Brownlee Gerry: Questions for Oral Answer — Questions to Ministers 
[Volume:615;Page:11078] 
1. GERRY BROWNLEE (Deputy Leader—National) 
 to the  
Prime Minister 
: In light of her statement that: “Our proposal is for the twin title to have the people’s title alongside the customary title and we think that meets the interest of both people.” is it the intention of the Government that public domain title and customary title will exist side by side over virtually the entire coastline? 
Hon Dr MICHAEL CULLEN (Deputy Prime Minister) 
 on behalf of the 
 Prime Minister 
: Public domain title will be created over the entire coastline subject of course to those few small areas that are currently in private title. Maori will be able to seek customary title over any area covered by the public domain title if they can demonstrate ancestral connection. Customary title of course is not a property right. 
Gerry Brownlee 
: Does the Prime Minister agree that Maori customary title holders will have special enhanced participation rights over management of the foreshore and seabed that no other New Zealanders will have; if so how can she see that as anything less than race-based preferment by her Government? 
Hon Dr MICHAEL CULLEN 
: The proposal for ancestral connection - based customary title reflects the fact that Maori as the tangata whenua of this land do have that ancestral connection. Unfortunately of course from the perspective of the Opposition that is a reality they have to deal with. 
Jeanette Fitzsimons 
: Does the Government accept that the rights conferred on Maori by centuries of ancestral association with the coast have never been extinguished and must be provided for in a fair resolution of the foreshore and seabed issue? 
Hon Dr MICHAEL CULLEN 
: I think I prefer to put it this way: those rights that have not been extinguished should be properly protected. It is clear that a significant number of customary rights have been extinguished by one means or another since 1840. The proposals in front of the public at the moment do not intend to revisit those customary rights that have been extinguished. 
Stephen Franks 
: Why would the Government contemplate customary title existing over more than a minute fraction of our coastline when the judges of the Court of Appeal expressly cautioned that they expected it to be very rare if it was found anywhere and where Judge Hingston of the Maori Land Court has said that mana moana which appears to be ancestral connection is born of greed and ignorance? 
Hon Dr MICHAEL CULLEN 
: I can deal with the first point. That is not quite what the judge of the Court of Appeal said. What the judges said—and that was obiter dicta not by any means a legal ruling—was that their expectation was that the sum of customary rights that might add up to something like freehold title would not apply to more than a small number of discrete areas. They never suggested any sense that—oh yes the member shakes his head. I suggest that he re-reads the ruling by the Court of Appeal judges. They did not suggest in any shape or form that somehow or other the amount of foreshore and seabed with which Maori had ancestral connections was limited to small and discrete areas. 
Hon Peter Dunne 
: Will the Prime Minister confirm two things: firstly that any customary title granted under this proposal will not imply any sense of exclusivity; and secondly that where customary title is granted it will be on the basis of a reasonable continuity of connection back to 1840 and will be in a situation that means that the rights of access of all New Zealanders are protected and enhanced? 
Hon Dr MICHAEL CULLEN: 
 I will take the last part first. Yes the intention of the proposals is to protect and enhance the rights of access held by all New Zealanders as of right not on a grace and favour basis for the majority of New Zealanders. 
 On the second point I think that the statement about continuity is a statement that applies to customary rights and that of course is merely a statement of the common law definition in effect of customary rights. Customary title already exists in the sense that the connection already exists unbroken since 1840. I am not aware of any iwi or hapu that has surrendered its association with the foreshore and seabed. [ 
Interruption 
] I would point out that the members opposite voted for the Ngai Tahu settlement legislation. 
Hon Ken Shirley 
: No we didn’t. 
Hon Dr MICHAEL CULLEN 
: Except for ACT members but then of course they are always different on everything to do with race. After they merge with National no doubt they will change their history. I come to the National Party. They passed the Ngai Tahu settlement legislation which recognised the connection of Ngai Tahu with the vast bulk of the foreshore and seabed in the South Island. 
Gerry Brownlee 
: Is the Prime Minister trying to tell us that customary title is effectively meaningless and that anyone who holds a customary title has no greater participation in the management of the seabed and foreshore noted in that title? 
Hon Dr MICHAEL CULLEN 
: No indeed not and of course that is a claim made by some particularly some lawyers representing Maori interests in this matter. As always the truth seems to lie between those lawyers and the National Party. What the proposals do imply and indeed state very very clearly is that the existence of customary title will give the opportunity for participation rights in relation to planning matters with regard to the coastal marine area which is foreshore and seabed only—not I have to point out to the Opposition yet again the beaches above the high mean tide mark. 
Jeanette Fitzsimons 
: In light of the overwhelming iwi opposition to the Government’s initial proposals at the 12 hui last year what process has the Government adopted for further discussion and good faith negotiation with iwi to achieve an agreed outcome in the spirit of partnership? 
Hon Dr MICHAEL CULLEN 
: A range of further consultations has occurred at a personal level at a group level and indeed at many other levels I think it is fair to say. I do not accept that the current proposals are opposed by the vast bulk of iwi. There is a lot of noise but there is also a lot of quiet talking going on around those proposals which are not helped by the exaggerated representation of those by members opposite. 
Rt Hon Winston Peters 
: Does the Minister of Finance understand or know what is the legal authority for regarding the seabed as land? 
Hon Dr MICHAEL CULLEN 
: Apart from anything else at this point of course the Court of Appeal decision. That was made quite clear in the Court of Appeal decision. What the Government has said is that the Te Ture Whenua Maori Act passed in 1993 was not intended to allow the Maori Land Court to grant in effect freehold title over the foreshore and seabed. Much as I might make many accusations against the Bolger National Government I would never accuse them ofactually intentionally planning to hand over freehold title ownership of the foreshore and seabed to Maori. 
Stephen Franks 
: Would the Deputy Prime Minister like to again answer the question I first asked which in essence was: where is the legal requirement in the Court of Appeal judgment or from the Maori Land Court to regard ancestral connection as any authority for issue of customary title or customary right of any kind? 
Hon Dr MICHAEL CULLEN 
: What the Court of Appeal decision did was to leave us with a situation where Maori—and many have done so—may apply to the Maori Land Court for customary land status over foreshore and seabed. 
Hon Dr Nick Smith 
: No it doesn’t. 
Hon Dr MICHAEL CULLEN 
: I do not know what the member thinks the Court of Appeal said but the Court of Appeal said that the Maori Land Court has jurisdiction to determine whether the foreshore and seabed is customary land. That is the actual precise statement of what the Court of Appeal decided and therefore left unattended that decision means that potentially significant parts of foreshore and seabed could become customary land. That is a matter for the Maori Land Court to determine. 
 The Court of Appeal may express its view about what the Maori Land Court would do but that does not mean to say that that is what the Maori Land Court would do in that circumstance. That customary land status can easily be turned into freehold title. If members opposite are stating that they wish now that that should be left in that position that is not what their leader has said. 
Gerry Brownlee 
: If the Government’s proposal is to put a significant amount of New Zealand’s coastline into customary title or into public domain which of the two types of title will have pre-eminence when it comes to issues relating to the management of that area and if the customary title does have a certain amount of pre-eminence over the public domain title does not that create a racial preference? 
Hon Dr MICHAEL CULLEN 
: The proposal is that the public domain title expresses the full ownership of the seabed and foreshore. Customary title sits alongside that ownership. 
Hon Dr Nick Smith 
: Customary title is a mess. 
Hon Dr MICHAEL CULLEN 
: It is not a mess at all. It may be a little bit intellectually difficult but that does not make it a mess. The next part of that is that the exercise of those participation rights for Maori through customary title are within the context of the Resource Management Act and other legislation. It is called one law for all.