Cullen Michael: Foreshore and Seabed Bill — Procedure Second Reading 
Cullen Michael: Foreshore and Seabed Bill — Procedure Second Reading 
[Volume:621;Page:16930] 
Hon Dr MICHAEL CULLEN (Deputy Prime Minister) 
: 
 I move  
That the Foreshore and Seabed Bill be now read a second time 
. I would never be so cruel to Mr Brownlee as to insist that he speak at length on this bill—10 minutes will no doubt be an extension of time!  
To repeat a point I made in the debate on the first reading this bill gives effect to the four principles we set out at the start: access regulation protection and certainty. The bill provides a clear unified system for recognising and protecting rights in the foreshore and seabed. It creates a fair and reasonable framework for working through individual cases in the context of a settled concept of Crown ownership on behalf of all New Zealanders.  
I said in my first reading speech that this bill would not satisfy everyone. I doubted that that would be possible given the contentious and complex nature of the issues. But I emphasised that the bill did go a long way to addressing the concerns that have been raised. I expressed the hope that people would take time to examine and discuss the bill and suggest improvements. The select committee report shows that people certainly exercised their democratic rights with nearly 4000 written submissions and over 200 oral presentations. It is disappointing that the committee could not agree on amendments to the bill many of which are simply of a technical nature that would have assisted members and we shall hear a great deal of huffing and puffing about that later ignoring the fact that the parties responsible are those that actually opposed the bill not those that supported the bill. But that has not detracted from the integrity of the legislative process as Mr Russell Fairbrother chair of the Fisheries and Other Sea-related Legislation Committee pointed out.  
I turn to the select committee’s report. I would like first of all to express my gratitude to Government members of the committee for their contribution to the work of the committee and for their report. Their advocacy of a reserve status for areas of the foreshore and seabed expressed both in the report and directly has been influential and is reflected in the Government’s proposals for changes to the bill. I shall say more on those later.  
I am not able to compliment National members of the committee on their report. They restate their earlier position that Parliament simply needs to legislate to remove the Maori Land Court jurisdiction that was the subject of the NgatiApa judgment. The bill does a great deal more than that because it has to. Recognising and protecting rights in the foreshore and seabed is a complex matter not one amenable to simple solutions yet National says it supports recognising and protecting those customary rights.  
National tells us that it does not accept the claim that non-Maori New Zealanders can never have the same feeling love and care for or connection with the coastline of this country as someone who is Maori. The Government and New Zealand First reject that too. If National members think that that is what the bill does they have simply not read it through. What they have to consider is whether particular Maori interests in the foreshore and seabed can be acknowledged consistent with the general interests of all New Zealanders and that is what the bill has set out to do.  
Mr Dail Jones made a thoughtful and constructive contribution to the report repeating the position that the bill does ensure the ownership of the public foreshore and seabed by the Crown and the protection of customary rights. That dialogue is continued and the Supplementary Order Paper represents the outcome of that dialogue.  
ACT simply said we were precipitate inconsistent and wrong but never said at all clearly what should have been done. [ 
Interruption 
] Apparently the ACT position was that we should have allowed the law to run as it was and foreshore and seabed should have passed into private hands. We know ACT favours privatisation but we did not realise it actually went as far as that in this respect.  
The Green members’ report is extensive and considered but does not provide a basis for reaching an accommodation with the Government on the issues in the bill because it adopts this notion that in the meantime the Crown has some kind of trusteeship before ownership is transferred to Maori under the current jurisdiction.  
The United Future member made many constructive suggestions and I think probably United Future’s disagreements with the bill are less substantive than those of some other parties in the House. Theirs is more about process rather than the substance of the bill.  
The Supplementary Order Paper incorporates a very large number of the amendments suggested in the departmental report and could have been done at the select committee stage. Other amendments reflect discussions with Government members and with New Zealand First. They cover the following. First of all there is the objective of the bill. The objective is to preserve the public foreshore and seabed in perpetuity as the common heritage of all New Zealanders in a way that enables the protection by the Crown of the public foreshore and seabed on behalf of all the people of New Zealand including the protection of the association of whanau hapu and iwi with areas of the public foreshore and seabed. That seemed to be consistent with the National Party’s position. 
Secondly right of access: the powers in the bill are to restrict access only to protect activities that are the subject of a customary rights order and relate to sites of special significance. Thirdly statutory criteria for the new jurisdiction of the High Court to consider claims of territorial customary rights that is continuity contiguity and exclusive use and occupation: so far the National Party has shown no sign of recognising that the issue of the inherent jurisdiction of the High Court is on the table right now and unless the law is changed there is nothing to prevent the High Court from issuing customary title to foreshore and seabed. The National Party seems to pretend that somehow that can be completely ignored in the legislation. Such folly on its part I think is extraordinary.  
The tests that are applied are arguably more liberal than in the common law of other jurisdictions. They certainly reflect the kind of common law test the courts should have applied should any application be made under customary title procedures. The redress for territorial customary rights covers a couple of possibilities. The first is that a successful applicant group where there is redress to be available can apply for the establishment of a foreshore and seabed reserve. That is held for the common use and benefit for the people of New Zealand but acknowledges the guardianship status of the applicant group. The board operates within the statutory framework of the Resource Management Act. Its task will include the preparation of a management plan for the reserve which councils will recognise and provide for in preparing or changing regional policy statements or plans.  
Regional councils will be required to review relevant regional policies and plans within 6 months of a management plan for the reserve being lodged with them. This is so unscary that it is remarkably similar to provisions in the Resource Management Act which the National Government itself passed in 1991. But we will hear vast huffing and puffing for many hours about the supposed effects of that in relation to special privileges.  
The Supplementary Order Paper removes ancestral connection orders. They were widely criticised on the grounds of cost and ineffectiveness and will not proceed. The National Party called for the removal of ancestral connection orders and it will be interesting to see what it says on that part of the bill in the Supplementary Order Paper.  
The new customary rights orders clarify that these must be based on actual activities and cannot be issued simply in response to cultural or spiritual associations and cannot be described as a right to the exclusive use of an area unless it can be justified by evidence of exclusive use.  
Changes in existing infrastructure clarify that the maintenance of and new consents for existing infrastructure will not be subject to the new restrictions on consent applications that would have a significant adverse effect on a recognised customary activity and provided that the effects are temporary or the same as those that existed before the application was made.  
The vesting of reclaimed land: limited exemptions will apply if a resource consent for a reclamation has been granted before the enactment of this bill or if there is specific statute or legal agreement and new provisions will give port companies an automatic right of renewal on leases. They will reclaim the land necessary for port infrastructure while other holders of a lease over reclaimed land that is due to expire will have a right to have an application for a new lease considered. Existing rights are protected and the situation going forward provides adequate protection for reclamations.  
These are significant changes to aspects of the bill. I would have preferred that they be considered on their merits by the select committee and reported on in full to the House. That would have assisted us in taking this bill through its remaining stages. But the obstructiveness of Opposition parties is no reason to prevent the bill from being taken through its remaining stages. That would have assisted in terms of the later debate. The changes strengthen clarify and take account of practical concerns. They do not affect the bill’s basic purpose and direction which centres on those four principles.  
Lastly let me dwell upon a particular point. Ever since the Court of Appeal decision there has been a heroic overstatement of the implications of that decision on the part of many people throughout the country. Many Maori have claimed that there would be automatic ownership of the foreshore and seabed or that already there was effective legal and beneficial ownership of the foreshore and seabed and therefore this legislation takes that away. That is nonsense. Legal ownership is vested in the Crown under existing legislation and existing legislation such as the Resource Management Act is incomprehensible without that assertion of ownership because under it the Crown contracts further ownership on reclamations. But on the other hand people got the notion that somehow or other the legislation was going to hand everything over to the full control and the full benefit of Maori. [ 
Interruption 
] Yes says Mr Richard Worth. Neither position represents the reality at all except of course the National Party is trying to argue both of them simultaneously which only it is ever capable of doing on these kinds of issues.  
The bill represents a delicate balance. It represents a balance that reflects the actual common law rights position codified into statute—no more and no less than that. We shall hear a great deal more over the next 20 hours or so but it will be a great deal of noise signifying very little from the National and ACT parties. 
Mr SPEAKER 
: I have organised the list of the parties I will call in order. It is on the Table and people can come and consult if they wish. I have already consulted some of the parties.