Volume 621 Week 74 - Tuesday 16 November 2004(continued on Wednesday 17 November 2004) 
Volume 621 Week 74 - Tuesday 16 November 2004(continued on Wednesday 17 November 2004) 
[Volume:621;Page:16961] 
Tuesday 16 November 2004 
( 
continued on Wednesday 17 November 2004 
) 
Foreshore and Seabed Bill 
Second Reading 
Debate resumed. 
RUSSELL FAIRBROTHER (Labour—Napier) 
: 
 The staff of the Fisheries and Other Sea-related Legislation Committee deserve the thanks of the whole House for the work they did over and above the call of duty. Their attitude to the committee was tremendous. 
MITA RIRINUI (Labour—Waiariki) 
: 
 I stand to support the second reading of the bill. In doing so I want first to acknowledge the contributions of the Government members supported by the New Zealand First members to the processes of the Fisheries and Other Sea-related Legislation Committee. I acknowledge Russell Fairbrother for his strong chairmanship and also the contributions of my colleagues Dover Samuels Mahara Okeroa and Dail Jones who played a significant part throughout the whole process—unlike some who were there only during the hearings process. I have to say that that was more a case of political point-scoring than a genuine attempt to resolve many of the issues expressed by the submitters. The United Future member Larry Baldock often attended.  
The bill as amended acknowledges the unique relationship Maori have with the coastline. Our tipuna signed the Treaty of Waitangi to seek Crown protection. I am satisfied that the provisions contained within the bill honour their legacy. However there was an unrealistic expectation that the Government Maori caucus would deliver the entire foreshore and seabed to Maori ownership in fee simple title. That was never going to be the case. It was an expectation that required much more than we were able to provide. Some parties in this House have given Maori the impression that they are able to deliver that ownership.  
Maori caucus members have advocated strongly throughout the entire process for the recognition of Maori customary interests and the right of Maori to have their day in court. As a result of the proposed changes to the bill the High Court may grant a territorial customary rights order to Maori groups which may result in the establishment of a foreshore and seabed reserve. For those who seek reserve status the High Court will be able to direct them to the Crown to discuss redress options.  
We believe that the proposed amendments will recognise some of the fundamental issues that were raised during the select committee process. No fee simple titles will be awarded and this reflects the views of the majority of Maori who appeared before the select committee. We have been instrumental in strengthening the redress provisions around territorial customary rights. We recognise that this bill will not please the extremists or the purists. However we are confident that it caters to the wishes of the majority of Maori who take a more pragmatic view of progressing our development as a people. The Resource Management Act is currently being reviewed and will be strengthened to recognise more effective consultation with local Maori over coastal areas. We believe that this will provide stronger recognition of the traditional association of whanau hapu and iwi with the coast than the ancestral connection orders initially provided for in the legislation.  
During the select committee process many submitters sought a longer conversation on the foreshore and seabed issue. However we believe that would have stymied the aquaculture developments that many coastal iwi around the country are exploring. We Maori are very good at long conversations. The last one we had took 13 years. As Maori members representing a wide diverse range of views we could not allow this to happen. I heard in the House last night a speech advocating that we have a longer conversation. I wonder whether the many who came on the hikoi who were involved in aquaculture development would have agreed with that speaker on that particular point. I doubt it very much. In fact I have received many calls expressing great concern about that suggestion.  
Maori caucus members have played an active role in the discussion on aquaculture and the setting aside of 20 percent of all marine farming space for Maori interests. Therefore we believe that it is important that this opportunity not languish for another decade in much the same way as the Treaty of Waitangi fishing allocation process did. The consequence of a long conversation would have been a halt to aquaculture farming for years or even decades.  
In the very little time I have left I want to acknowledge much of the progress this Government has made in relation to Maori employment or unemployment. The first thing many Maori families think about when they wake up each day is their children and their mokopuna. It is interesting that the latest figures on unemployment among Maori are below 8 percent. Never in the 18 years since the records have been kept has this been the case. There are 40000 more Maori in work now than there were when this Government took office. In the mid-1990s one in three Maori did not have a job. Now under this Government fewer than one in 10 are unemployed. 
Hon DOVER SAMUELS (Minister of State) 
: 
 When I woke up this morning I turned on the radio and heard claptrap and rhetoric. That is what I heard this morning on  
Morning Report 
 from a party that says it represents Maori and then I heard a representative from the Green Party in and out of hallucination. She said that the members of this House did not have the courage— 
Metiria Turei 
: I raise a point of order Madam Speaker. It was difficult to hear the speaker. I am uncertain as to whether he referred to the Green Party member as “hallucinating”. If he did I take personal offence at that comment and ask that it be withdrawn and apologised for. 
Madam DEPUTY SPEAKER 
: Yes I think that that is inappropriate. The member has taken offence. Would the Hon Dover Samuels please stand withdraw and apologise. 
Hon DOVER SAMUELS 
: I withdraw and apologise. I was just saying that the person who made those comments on  
Morning Report 
 this morning was in my view hallucinating—was somewhat under the influence. [ 
Interruption 
] I did not refer to the Green Party. 
Madam DEPUTY SPEAKER 
: The member has been called on the point of order. The Green Party member has taken offence. The member should not refer to that and insinuate the same point he made before. The member will withdraw and apologise. 
Hon DOVER SAMUELS 
: I withdraw and apologise. 
Hon Ken Shirley 
: I raise a point of order Madam Speaker. I just want to get this clear. Are you telling us that now as part of the record we cannot use the word “hallucinating”—that we cannot say that another member is “dreaming” or “hallucinating”? Is this a new standard that you from the Chair are saying is unacceptable in the House? 
Madam DEPUTY SPEAKER 
: No. The remark was a personal reflection on a member who took offence. 
Hon DOVER SAMUELS 
: I support the second reading of the bill and I tell the House that I have a vested interest. It may very well be that I have a conflict of interest. Why? Because I am a Maori and I belong to a hapu. In the generations of my people my tupuna at Matauri Bay Ngati Kura there was never any recognition of any right given to their takutai moana—never in generations. I have never seen representation by any other party acknowledging that Maori have customary rights that have to be accorded and given effect to in the law. I have lived there for many years and my tupuna are there. I challenge the other Maori members of the House to show me anywhere in legislation that Maori customary rights have ever been given effect to. 
Those Green Party members who walked in and out of the select committee—who spent 5 minutes there—advocate on behalf of Maoridom and know nothing at all about customary rights. They know nothing about the relationship that Maori have with their takutai moana. 
I ask the members of this House to show me any legislation passed in the history of this House going back to the whakapapa or to 1840 where a Government and a party stood tall to recognise that Maori have customary rights to their takutai moana. This is the first time in the history of this nation— 
Gerry Brownlee 
: 1996. 
Hon DOVER SAMUELS 
: It does not matter about the balderdash from that member across the other side of House who most of the time has his cellphone to his ear while talking to Don Brash and trying to justify his own existence instead of getting on with the business.  
I am proud of this Government and I am proud that this Parliament has finally moved to give recognition that whanau and hapu have customary rights over their foreshore and seabed. I say to the member opposite that this legislation finally gives me the opportunity as a member of the hapu to take my case to the Maori Land Court and to the High Court. Never before in the history of this nation have those processes been available to our people—never before. 
Along with my hapu I live by the sea. Some people would say that I have gills—not unlike my whanaunga there from Ngati Wai who lives by the sea also. I say to this House—and I think it is an important issue—that our customary rights have never been recognised in law—never! 
Gerry Brownlee 
: Of course they have. 
Hon DOVER SAMUELS 
: I ask that member: where? 
Hon Member 
: The Fisheries Bill. 
Hon DOVER SAMUELS 
: We are talking about the foreshore and seabed. That is how those members are so far out and away from reality. 
Never before have our rights been recognised in any legislation. I will ask the other party—the “Harawira Party”—to show me where they have been. I will ask the Green Party to show me if Maori customary rights have ever been recognised in legislation. My hapu my ancestors and my elders in generations right back—generations—have never had their customary rights recognised in the law of this land. Halleluiah to David; God bless; tihei mauri ora! 
It is no matter about the old humbug and claptrap from the members of other parties—the intellectuals the know-alls—who have never lived beside the sea and who would not know what the hell the difference was between a snapper a kahawai or a tadpole. They would not understand what it was. 
I do not tell lies. I go out there and tell our people the truth and I tell them this: they can go down to their rock and they can go and dive for kinas. They can still go and pick tuatuas they can still go and get a suntan—if they want to get browner than Parekura Horomia—and they can still go out and fish for kinas. They can do anything and everything that they have done historically—nothing will change. But there is humbug and claptrap out there and those people spreading mistruths amongst our people should be ashamed of themselves. Kia ora tatou. 
Gerry Brownlee 
: Well done the trained seals. 
Hon Dr MICHAEL CULLEN (Deputy Prime Minister) 
: 
 I raise a point of order Madam Speaker. That was an absolutely disgraceful interjection from the deputy leader of the National Party. I suggest that you require him to withdraw and apologise. You know exactly what he said. I will not repeat it in the House. 
Madam DEPUTY SPEAKER 
: Did the member make an offensive remark? 
GERRY BROWNLEE (Deputy Leader—National) 
: 
 Well it depends. If one is a trained seal being compared with the Labour Party probably would have been offensive. 
Madam DEPUTY SPEAKER 
: It was taken as an offensive remark. Would the member like to withdraw and apologise. 
GERRY BROWNLEE 
: For making the comment: “Well done the trained seals.” I withdraw and apologise. 
A party vote was called for on the question  
That the Foreshore and Seabed Bill be now read a second time. 
Ayes 65 
New Zealand Labour 50; New Zealand First 13; Progressive 2. 
Noes 55 
New Zealand National 27; Green Party 9; ACT New Zealand 8; United Future 8; Maori Party 1; Independent: Awatere Huata; Other: Mahuta. 
Bill read a second time. 
Instruction to Committee 
Hon Dr MICHAEL CULLEN (Deputy Prime Minister) 
: 
 I move  
That it be an instruction to the Committee of the whole House on the Foreshore and Seabed Bill that it take the bill part by part.  
A party vote was called for on the question  
That the motion be agreed to. 
Ayes 66 
New Zealand Labour 51; New Zealand First 13; Progressive 2. 
Noes 54 
New Zealand National 27; Green Party 9; ACT New Zealand 8; United Future 8; Maori Party 1; Independent: Awatere Huata. 
Motion agreed to. 
In Committee 
Part 1 Preliminary provisions  
The CHAIRPERSON (H V Ross Robertson) 
: Part 1 includes clauses 3 to 5. 
GERRY BROWNLEE (Deputy Leader—National) 
: 
 This is where Parliament will start to untangle the extraordinary spin that the Deputy Prime Minister has put about in the last couple of days suggesting that this amended bill—because Supplementary Order Paper 302 is not really a Supplementary Order Paper; it is a fully amended bill—will solve and salve all the problems and concerns that many New Zealanders have. 
We see in it this tricky little idea of inserting a new clause 2A “Object”. That is a Dail Jones initiative and in it there is a paragraph that almost contradicts itself. 
Darren Hughes 
: It must have been written by the National Party. 
GERRY BROWNLEE 
: Mr Hughes the confused member on the other side of the Chamber is saying that it must have been written by a party other than Labour. It was; it was written by New Zealand First and frankly the New Zealand First member should be sitting in the Minister’s chair because this amended bill is his work. 
We have here a problem insomuch as whereas the object is supposedly to put the foreshore and seabed into Crown ownership for the people of New Zealand the Government equally wants to say that the foreshore and seabed can be dealt away in deals with Maori provided that the High Court of New Zealand agrees with that. That seems to me to be a very weak protection given the sort of judicial activism in this area that we have seen in the last few years. Is it not extraordinary that on a bill that is a result of just that sort of judicial activism we end up seeing an old lawyer Dail Jones trying to solve the problem by once again creating the opportunity for these things to go back before a court? 
It is a problem insomuch as this is the part of the bill that also makes it very clear to non-Maori New Zealanders that they have fewer rights to undertake activity on the foreshore and seabed of this country than Maori do. That is undeniable. That is quite undeniable because unless one is Maori one cannot go to the High Court to talk about a customary right or a customary use. 
Dail Jones 
: That’s not true. 
GERRY BROWNLEE 
: That is true. The bill excludes it particularly. [ 
Interruption 
] Here is a question for “Minister” Dail Jones to stand up and answer. This is his cunning out; this is his out on this argument. He is saying that I am wrong because if non-Maori were here before 1840 and they had established some sort of activity that continues today they could get a customary right but if one came after 1840 one can forget about it. The fact is the vast majority of people in this country arrived here after 1840—or their ancestors did—and their activities commenced after that time. These people think they are very clever by saying that anyone can go for a customary right provided that it happened before 1840. Well that is the divisive aspect of this bill that will do damage to this Government. I tell Mr Samuels that it is quite inappropriate in the year 2004 to tell New Zealanders that they cannot be considered equal to Maori in their love of the coastline of this country because their ancestors were not here before 1840. That is a nonsense. 
It is as big a nonsense as saying that Maori can claim the seabed out to the territorial limit which did not exist prior to 1967. That is another little piece that has been put in place by Winston Peters. Last night he was claiming that New Zealanders will thank him for his great work on this measure. Although we know that Mr Jones has done the work we know that Mr Jones would not breathe without Mr Peters telling him he can and the reality is that this measure very much will be sheeted home to him. He is the man who has decided that this Parliament will pass a bill that separates Maori and non-Maori when it comes to consideration of activities on the coastline of this country. 
Hon Dr MICHAEL CULLEN (Deputy Prime Minister) 
: 
 What a thoroughly confused piece of extended piffle that was from the deputy leader of the National Party! First of all let me make it clear to him that new clause 2A was drafted in consultation with my colleagues in the Maori caucus committee and with— 
Gerry Brownlee 
: Oh! 
Hon Dr MICHAEL CULLEN 
: It is even worse my goodness me! A brown face has had something to do with drafting the bill and that makes it totally bad according to the deputy leader of the National Party. Horror show! It is a nightmare and Friday the 13th all in one go for the poor old deputy leader of the National Party that Maori have had something to do with the bill. Of course National members are not racist on this bill at all! No no no! They just do not want anything to do with Maori being involved in it—that is all. 
Clause 2A was put to the New Zealand First members and they agreed to it. They agreed as part of another set of arrangements that were entered into the bill. So let us absolve Mr Jones of the blame for new clause 2A; the Government accepts full responsibility. 
Gerry Brownlee 
: We don’t believe you! 
Hon Dr MICHAEL CULLEN 
: I do not care what the member believes. The member’s brain is something I do not want to explore for more than a few seconds. 
What the member does not seem to understand is that common law rights are those rights that existed at the time that the Crown assumed sovereignty. The Court of Appeal found that common law rights had not been removed by the Crown’s assertion of legal ownership of the foreshore and seabed. That was not judicial activism; that followed any number of overseas judgments in that area. That member needs to front up and say whether he believes there are common law rights or not. What he is really saying is that if those rights are held by Maori they should not be allowed to exist. That is what he is actually saying. 
He is totally wrong when he says that this bill enables only Maori to go to the court. Pakeha can go to the High Court for a declaration of customary usage rights. The only difference is Maori go to the Maori Land Court in relation to customary usage rights and the reason is that there are tikanga issues that the Maori Land Court has expertise in. Both Maori and Pakeha have the right to go to the High Court on an equal basis in terms of the issue of territorial customary rights.  
Gerry Brownlee 
: What is the cut-off?  
Hon Dr MICHAEL CULLEN 
: The cut-off is what the law itself determines: the point at which the Crown assumed sovereignty. If those members do not like that then they are simply rejecting the entire jurisprudence on these matters not just here but in any other number of jurisdictions as well. 
This really emphasises how stupid the National Party is on this bill. It does not have an argument. National members are simply trying to wind up an issue around race to frighten people. And what confusion and contradiction there is! Other parties in the House claim we are taking everything away from Maori. The National Party claims we are giving everything to Maori. Georgina te Heuheu says we are taking everything away from Maori. The ACT party says it thinks there should be property rights but it does not think Maori should have any of them so it will oppose the bill on both grounds. And Metiria Turei exists in some kind of ethereal stratosphere; I have yet to understand what she is saying at all on the issue at this particular point. 
The Government’s position is clear: the Court of Appeal left us with a legal framework that would have led to results that were divisive and untenable from a public policy perspective—that is the transfer into private ownership of public foreshore and seabed. Firstly we reaffirm the Crown’s ownership of the public foreshore and seabed. Secondly we provide the mechanisms for the consideration of customary usage rights. Thirdly we provide the mechanism for redress where there might have been territorial customary rights established and to deal with the issue the member raises we place in statute the test that has to be applied by the court in the consideration of those applications. 
What bit of that can those members actually oppose in principle at all as opposed to trying to do an Orewa speech scratch-scratch job hoping somehow or other that people will think there is something in it? We need just listen to the media reports and just read the editorials; already they have nothing to say of any interest. Those members will bash their gums uselessly for some 15 to 20 hours to come saying nothing of any importance at all throughout this debate. They have nothing to contribute on this issue and they have not contributed to this issue at any stage. They have no argument of any substance do not understand the law do not understand the Court of Appeal judgment and do not understand the bill but that will not stop the National Party because it never has stopped it when it comes to issues of complexity.  
Dr WAYNE MAPP (National—North Shore) 
: 
 What an arrant bit of nonsense we have heard from the Deputy Prime Minister! It is typical of his arrogance in this place. It is a testament is it not that he himself has not read new clause 2A. It has to be read out because Mr Jones as usual has tried to deny the public the truth. What does this clause state?  
Dail Jones 
: I raise a point of order Madam Chairperson. The member cannot say that I am in any way trying to deny anyone the truth as if I am involved in a lie. I take personal offence at that and I ask the member to withdraw. 
The CHAIRPERSON (Ann Hartley) 
: The member is right and he has taken offence at the comment. I ask the member to withdraw. 
Dr WAYNE MAPP 
: Speaking to the point of order I appreciate that— 
The CHAIRPERSON (Ann Hartley) 
: I have ruled on the point of order.  
Dr WAYNE MAPP 
: I withdraw and apologise.  
Hon Richard Prebble 
: I raise a point of order Madam Chairperson. Perhaps I should have risen earlier but I expected you to appreciate that to say that someone is trying to deny the truth of something is not to accuse that person of being a liar. In fact the rule cannot be that any member of Parliament can interrupt debate just by deciding that that person does not happen to like vigorous discussion. I say to you that you are setting a very bad precedent. I realise that the Speaker made a ruling yesterday which I think he now regrets but that is not in the rulings and I suggest that you consult with the Clerk and get on with the matter. Otherwise we will find that this debate will not be a robust exchange of views; it will be just a series of points of order breaking up speeches. I think the member ought to be allowed to start again.  
The CHAIRPERSON (Ann Hartley) 
: The member certainly does make a valid point but what I counsel members against is making imputations against other members. The member certainly did take offence at that. But the Hon Richard Prebble does make a point about robust debate. 
Gerry Brownlee 
: I raise a point of order Madam Chairperson. Do I take it that what you have just said is another ruling? 
The CHAIRPERSON (Ann Hartley) 
: No. 
Gerry Brownlee 
: Well I ask you whether it means we cannot have robust debate. Does it mean that if the reality is that the truth as one party might see it is being put in a way quite contrary to the way it is being put by another party we are not able to suggest that is what is happening? Everybody knows—and Dr Cullen has alluded to the fact that editorials and other articles in the papers have attested to this fact—that New Zealand First has been intrinsically involved in the development of the amendment bill that we now see before us and that Mr Jones himself has been very instrumental in putting together a number of the clauses here. In fact yesterday I overheard the Deputy Prime Minister congratulating Mr Jones on the fine work he had done on this bill.  
The CHAIRPERSON (Ann Hartley) 
: The member has made his point. I say to members that casting aspersions and attacking the member as against the point of view is what this is about and the member has clearly said he took offence. That is the end of the matter. 
Dr WAYNE MAPP 
: When a Supplementary Order Paper of 67 pages an amendment bill is denied to the public until the beginning of the debate how are members to know the truth of the contents of the material? They have almost no time to read it and that is the point I was making. 
The Government claims that new clause 2A will protect the Crown ownership of the foreshore and seabed. Then it goes on to state: “including the protection of the association of whanau hapu and iwi with areas of the public foreshore and seabed.” What the Government is doing here is clearly preferring Maori above all other members of the community. The Minister in the chair Michael Cullen might deny it but that is what clause 2A actually states. Clause 2A for the benefit of Government members sets out the object of the bill itself. So it is very very clear that we have two classes of citizenship. Maori are in a preferred position. That is why the clause refers to protection of the association of whanau hapu and iwi. I do not believe that those terms are intended to apply to all New Zealanders. Maybe they are—maybe the junior whip will tell us that they are terms for all New Zealanders—but I believe that they are intended for Maori alone. So that is a compromise. 
It is a derogation of the general right and the whole of the rest of the bill is intended to achieve precisely that. I am sure we will see Dail Jones get up and say that it is wonderful that the Auckland regatta is now protected and that one can apply to the High Court for a customary rights order. Well I ask Mr Jones whether there actually was a problem. Were the organisers of the regatta seriously troubled that they might not be able to hold the regatta in January 2005—the first time in 165 years that the organisers really feared they would not be able to hold it? We know that that is a nonsense proposition. The reality is that that customary rights order said by the Deputy Prime Minister and by Mr Dail Jones to be available for the general public is in fact of no value whatsoever. The only case that is ever mentioned is that of the regatta which does not need the protection. Frankly it is a tissue and a fabrication. 
On the other hand Mr Dover Samuels is correct. He says that Maori will get all sorts of rights and protections. Those will be deep and they will compromise the public interest. 
Hon RICHARD PREBBLE (ACT) 
: 
 I rise at the beginning of the Committee stage on the Foreshore and Seabed Bill to say to the Committee that I realise I have been here only 26 years but I have never seen the House doing what we are now doing. We are now debating what is regarded by everyone I think as one of the most important pieces of legislation introduced by the Government and one of the more important pieces of legislation introduced by any Government. It is one of the few pieces of legislation that has caused a by-election so we can see it is important. This version of the bill was given to the Opposition only yesterday— 
Hon Ken Shirley 
: At 5.30. 
Hon RICHARD PREBBLE 
: —at 5.30 p.m. with the so-called redline amendments that we are now working from and there is no explanatory note—none whatsoever. 
Hon Dr Michael Cullen 
: There is on the Supplementary Order Paper. Look at the back. 
Hon RICHARD PREBBLE 
: The Minister says so but perhaps he can refer me to the explanatory note on new clause 2A because when I read it I say to the Committee that it is incomprehensible. I realise I am just a mere lawyer but I do not understand what on earth it means. It states: “The object of this Act 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 people of New Zealand”. I think I understand that. But then it states: “including the protection of the association of whanau hapu and iwi with areas of the public foreshore and seabed.” What does that mean? 
Hon Ken Shirley 
: Gobbledygook. 
Hon RICHARD PREBBLE 
: Perhaps it is gobbledygook. What it appears to me to state is that we are protecting the whole of the foreshore but we are also protecting it all for Maori. Those two statements are in contradiction. A court is supposed to know what that means. I say to the Minister in the chair Michael Cullen that perhaps it is just flannel. I once said to Geoffrey Palmer when he said to me “It’s just window dressing” that the problem with window dressing is that a court will give it a meaning.  
It appears to me to be racist legislation. The Government is saying that “all New Zealanders” and “whanau hapu and iwi” are different. That is what that clause states. I would have said that “all New Zealanders” includes both Maori and non-Maori but not this Government. That is the heart of the problem in the bill. It is deeply racist legislation. I say to the Minister again that the ACT party would have left the matter to the courts. We have said that consistently. We are a party that believes in the rule of law and I took great exception although I did not raise a point of order to the member saying that we protect non-Maori property rights only. This party is in favour of property rights and we accept that there are some parts of New Zealand—not many but some—where Maori do have property rights on the foreshore. The ACT party stands for that. We do not get upset about that because they have had them since 1840 and it has not caused any trouble up until now and we would not have panicked. We would have said that they should go ahead with court cases. Let me make that clear.  
I object very strongly to Parliament passing provisions like clause 2A that no member opposite can explain. We tried to be parliamentarians. We said to the Minister that he could have unlimited time to explain the bill—a gift that most parliamentarians would accept. What did Dr Cullen do? He said no. He was the first person to say no and that was because he is not a fool. He realises that he cannot explain clause 2A. But on the face of it it is a deeply racist provision because it states that there will be protection on behalf of all people and then states that Maori are not all people—they are somehow different. I say to the Minister that “all people” ought to mean both Maori and non-Maori but that is not so under this deeply racist Government. As a parliamentarian I am appalled that we should be considering legislation like this. 
The CHAIRPERSON (Ann Hartley) 
: The member will be seated. He cannot say that.  
Hon RICHARD PREBBLE 
: I most certainly can! 
The CHAIRPERSON (Ann Hartley) 
: The member knows that under the Speaker’s ruling by Doug Kidd he certainly cannot call the Government or a member “racist”.  
Hon RICHARD PREBBLE 
: I withdraw saying that the Government is racist. This is deeply racist legislation introduced by members who apparently are not racist. It has been introduced by members who say they would never be racist but it is deeply racist. We know it is. It is apartheid legislation. 
RUSSELL FAIRBROTHER (Labour—Napier) 
: 
 There is no surprise in new clause 2A for those who understand the principles on which the bill comes about. There is no surprise in it for those who have read any part of the Ngati Apa Court of Appeal decision. There is no surprise in it for those who have read anything about Mabo or the international law on aboriginal rights. There is no surprise in it for anybody who has read the Treaty of Waitangi. There is no surprise in it for anybody who understands the common law principles on which the House is built. The only surprise in clause 2A is that those who use the term racist to describe the legislation have that word in the forefront of their imagination.  
The bill will “preserve the public foreshore and seabed in perpetuity as the common heritage of all New Zealanders” and that is the position that has prevailed in New Zealand for 160 years and that has been assumed by everybody to be the actuality. The Court of Appeal pointed out that riding upon that also as a burden on the Crown’s radical title is an obligation by the Crown to recognise the aboriginal title that the common law recognised whereby indigenous people had rights until they were clearly taken away by statute.  
 New clause 2A does precisely that. The object is to preserve the public foreshore and seabed in perpetuity as the common heritage of all New Zealanders but it includes the burden that has always been on the Crown for the common law right of aboriginal title. To describe that as racist legislation is to describe a skateboard as a motorcycle. The House deals with the facts and the Opposition appears to be trivialising the matter because it is not prepared to recognise the intelligence and principled nature of this bill. The clause includes the protection of the association of whanau hapu and iwi with areas of the public foreshore and seabed. That simply means that hapu whanau and iwi who have customary relationships that have continued since the assumption of sovereignty in 1840 can be recognised and will be recognised under this bill. There is nothing new about that nothing radical about that and nothing racist about that. But of course one cannot read clause 2A in isolation. 
Hon Richard Prebble 
: Why not? 
RUSSELL FAIRBROTHER 
: The purposes clause elaborates on that. It is very convenient for Mr Prebble not to have read as far as clause 3 “Purposes”. The bill has been around only since July! It may not be an illustrated version— 
Hon Dr Nick Smith 
: How long has clause 3 been around? 
RUSSELL FAIRBROTHER 
: About 140 years if one reads the common law and reads about Ngati Apa. It has been here for a long long time; since the signing of the treaty in fact. If one bothered to read the treaty and recognised that it was bringing into this country the common law of England then one would not be asking that question. One would not be thinking in terms of “racist”. One would be saying that clause 2A is self-evident and not even worthy of debate because it is a simple fact on which this country is built a simple fact on which this Parliament is run and a simple fact that all people in this country be they Maori Pakeha or more recent immigrants are prepared to concede when one talks to them out in the street. If the member interviews his mirror he may see a different picture. 
Clause 3 vests the full legal and beneficial ownership of the public foreshore and seabed in the Crown. That is the clause that the Court of Appeal required to be stated clearly so that the assumption of sovereignty and the Acts of this Parliament could express that principle. Then it gives rise to the burden which is then dealt with in paragraphs (b) (c) and (d) of clause 3. It follows as night follows day that if we recognise that this country is founded on the common law—the treaty recognises those common law principles and the right of Parliament to make laws arising therefrom—then any objection one can take to clause 2A is illusory and brings into intellectual argument what Richard Loe brought to forward play in the All Blacks. This part of the bill really sets the parameters for the rest of the understanding. We will have an interesting debate over the next few hours if clause 2A causes as much difficulty to those who consider themselves worthy to take part in this debate.  
We move on to clause 4 “Interpretation” but nobody from the Opposition has bothered to mention it. Interpretations are fine— 
Gerry Brownlee 
: It’s early days yet! 
RUSSELL FAIRBROTHER 
: It has been around since July. Mr Brownlee should have gone to the Fisheries and Other Sea-related Legislation Committee and would have heard the submissions on the clause. 
Simon Power 
: I raise a point of order Madam Chairperson. The Standing Orders and  
Speakers’ Rulings 
 state that members should not refer to anyone’s absence from the House or a select committee. Mr Fairbrother made a direct reference and you did not pull him up.  
RUSSELL FAIRBROTHER 
: I was saying what he would have heard in the select committee. Whether he was there I do not know—[ 
Interruption 
] 
The CHAIRPERSON (Ann Hartley) 
: I give Mr Power one warning. When I am on my feet making a ruling I do not expect comment. I was about to rule in his favour. He is right; the same rules apply to the select committee and the House. I give all members another warning: when I am ruling on a point of order or when a member is speaking to a point of order there will be silence. 
Hon KEN SHIRLEY (ACT) 
: 
 As my colleague has already pointed out in this debate Part 1 is racist legislation. But it is not only racist it is actually socialist as well. It is actually racist and socialist. Those members do not mind me calling them socialists—they actually smile and rejoice as I call them socialists. I am not allowed to call them racist we have established that but this Government is bringing both racist and socialist legislation to this Committee and I will explain why.  
This part essentially takes away the right of a group of New Zealanders even to pursue a possible property right through the courts. It takes away the right and strips them of due process. The ACT party defends all property rights and we say that if there are parts of New Zealand where people can establish that they hold a customary title then those people should have the right to pursue that. The point has been made that if they have held it since 1840 and there has not been any problem then what should we be fearful of. How can they answer that question?  
On the one hand this part strips away the rights of some people to pursue that property right but on the other hand it actually creates a tool that is very fearsome. Dr McHugh who was a key adviser to the Fisheries and Other Sea-related Legislation Committee made the point that this bill actually gives a lot more to Maori than they would have likely got through the courts. It creates a whole new regime across all the foreshore and seabed that is not confined to any basis of property right but which is race-based law. On the basis of skin colour or ethnicity a group of New Zealanders will have rights through the Resource Management Act to wield powers and controls through the back-door as already we see with land under the Resource Management Act now extended over the whole of the foreshore and seabed.  
To that extent this is lose-lose legislation. It breaches due process. It denies iwi the rights to pursue whether they do hold property rights. That is all the Court of Appeal said in the Ngati Apa case. It said that in some rare and remote instances it may be that they can establish customary title based on having held that land continuously—no more and no less than that. McHugh emphasised that point. He predicted it would be extremely rare. He doubted whether there would be even one or two instances in the country where the High Court would uphold that. But this Government panicked because it was looking at the politics of it not the substance of it.  
There is the Deputy Prime Minister with hands clenched behind his head. He knows that he has the tiger by the tail. He is digging himself deeper and deeper. He knows that he has messed it up. Rather than front up to the country and admit that the Government went down the wrong path the Government is trying to ram it through under urgency and impose this racist and socialist legislation on the whole country.  
The socialists just love it. Here is a way for the Crown to have everything. They would like the Crown to own all the land as well not just all the sea. I have a colleague out on the highways and byways of New Zealand who is fighting this Government because it is trying to find a back-door way to take over all farmers’ land calling it access and taking away property rights on the land. Here we see the Government stripping away potential property rights on the one hand and then creating a new regime that we should all be fearful of and that is this amendment to the Resource Management Act. That is essentially what it is. We are calling it the Foreshore and Seabed Bill. It is actually the “Resource Management Act Amendment (Foreshore and Seabed) Bill.” That is what we should be concentrating on because this mechanism is a disaster. 
 There are expanded powers on the foreshore and seabed in a nebulous form. Spiritualism has been introduced into the management of the foreshore and seabed. There will be taniwha running along the beach in all directions—and who will control it? The Department of Conservation will. We will have all that extra foreshore and seabed all reclamations with that wonderful balanced Department of Conservation controlling it! Can members imagine any developer anyone with a proposal whether it be for a marina or whatever going to the Department of Conservation and getting a fair hearing? 
GORDON COPELAND (United Future) 
: 
 I want to speak entirely on clause 2A which of course is the object clause of the bill and therefore is an overarching clause that is reflected right through the rest of the text of the bill.  
On 18 August 2003 our Prime Minister Helen Clark was interviewed on the  
Holmes 
 show. On that evening she announced to the nation that the Government’s proposal was to put the foreshore and seabed into “public domain” so that no one would own it. Paul Holmes then asked her: “Why on earth are you doing that? Why don’t you just do the straightforward thing and put the ownership of those assets with the Crown?”. I found the Prime Minister’s response on that evening very very interesting indeed. She said: “Well Paul you know that if I were to do that then from a Maori perspective they would have lost and the Crown would have won.” She made it quite clear therefore that the concept of public domain was an attempt to seek a kind of a neutral position in the hope that both the Crown and Maori who are the two partners to the treaty would be able to come to some common understanding and say: “Yes we together can go forward on this issue as a nation.”  
I say to Dover Samuels that I too grew up on the beach. I walked on the beach used the beach swam in the water took mussels from the water ate them on the beach and so forth for all of my boyhood. I frazzled my fair skin almost to obliteration in the process but I say as I think any New Zealander would that each of us desires to have full unfettered access to the beach. The bill achieves that but I do more in sorrow than in anger regret the fact that the Government lost its nerve and moved away from the concept of public domain. I thought it was a very useful concept. I think it could have contributed very positively to this debate and helped us to find a way forward.  
This is the way that I would have worded clause 2A: “The object of this Act is to provide for the guardianship”—and I use the word “guardianship” of course because that term will resonate with the concept of kaitiakitanga—“of the public seabed and foreshore in perpetuity as the common heritage of all New Zealanders for themselves and all future generations by vesting in the public domain the public foreshore and seabed and recognising as appropriate the association of whanau hapu and iwi with the areas of the public foreshore and seabed.”  
United Future really does regret that the concept of public domain was ditched so quickly after the good start the Prime Minister and the Government made in favour of going back to Crown ownership. I think it will therefore continue to be viewed by Maori as a win for the Crown and a loss for them. That is because of course for generations now Maori have regarded the word “Crown” as symbolising not the people of New Zealand but the sovereign of the United Kingdom. We see in treaty settlements for example the Crown even apologising for the confiscation of land and so forth. So that is embedded in Maori thinking and rightly and understandably so. I regret very much that the Government so quickly gave away the concept of public domain.  
My colleague Larry Baldock told me there would have been some legal difficulties. OK there might have been but the bottom line is that where there is a will there is also a way. I think that if the will had been there in the Government to stick with that concept a way could have been found to express the concept that is involved in the term “public domain”. One has only to look at say the Auckland Domain or down the road from where I grew up to the Mapua Domain to know that all New Zealanders understand that a public domain is something that all of us own that all of us have access to and that all of us enjoy egress from and travel across. It is something we can all use for recreation; to carry out our swimming our fishing our sandcastle building and all the other activities that all New Zealanders associate with the beach and with the foreshore and of course the seabed itself as we go out and fish and enjoy other activities of that kind.  
Really if that had been changed then of course all of the rest of the bill would be changed. When we read the bill now it is like a tattoo: a repetition of the word “Crown”. 
Hon DOVER SAMUELS (Minister of State) 
: 
 It has been very interesting listening to the claptrap coming from the other side of the Chamber. I would have thought that Opposition members would realise that this is an important issue and they would put a bit of intellectual horsepower into it but I guess when one’s leader is in the deep freeze it is very difficult to defrost him overnight and have him take part in the debate. We have heard all the korero from the members of the National Party who are members of the Fisheries and Other Sea-related Legislation Committee. We have heard them all blah-blahing about not receiving the Supplementary Order Paper at the appropriate time. I just want to say that they began playing games in terms of the process of reporting back to the House. They are the architects of their own destiny yet yesterday we heard enough whingeing and whining because they did not get the Supplementary Order Paper in time. I say to them: “You play your games and that is what you get.” It is called cause and effect. 
Hon Dr Nick Smith 
: Outrageous. 
Hon DOVER SAMUELS 
: I know that Nick Smith does not understand what cause and effect is all about. He may have to go to court to find out. But anyway I just want to say that I am interested in the comments about racism that are coming from Richard Prebble and the ACT party. They have been talking about how racist this legislation is. I am reminded of the debate we had here in this House relating to Maori reserve land. ACT members opposed the legislation because they thought it was racist because the rights of Maori in their view overrode the rights of their farmer mates so they organised a hikoi of tractors down to Parliament. They did not think about racism then. They did not call the legislation racist. In fact they actually promoted it. Is it not a bit—I will not say that word because I know it is unparliamentary. But is it not speaking with forked tongue to call this piece of legislation racist? All of a sudden they suffer from some sort of amnesia about their position in terms of their performance during the debate on Maori reserve lands.  
Let me say that I am very clear on the objects of this legislation. All Maori are clear on the objects of this legislation. I say again that in all my lifetime and the lifetime of my tipuna my kaumatua my grandparents my great grandparents we lived beside the sea. Their whole being their wairua was part and parcel of the takutai moana foreshore and seabed. There has never been any recognition in law at all over that period of time of the rights of my people. I want to reiterate that time and time again because somehow somewhere there is a blockage in some people’s thoughts and interpretation of this matter.  
For the first time in the history of this nation there will be some recognition in statute. It is not all that we wanted and not all we fought for but at least at this particular time in the history of this nation this Parliament this Government will recognise the tangata whenua Maori the indigenous people of this country. It is consistent with the world view. It is consistent with international covenants that in fact the customary activities of the indigenous people of this country are recognised.  
I do not know how much more clearly it can be spelt out in terms of the objectives. The objectives quite clearly reconfirm what has already in the last 150 years been the understanding of all New Zealanders including Maori. We never saw a hikoi 20 or 30 years ago in relation to some people’s warped understanding that Maori own all the foreshore and seabed out to Hawaiki nui Rapanui and out to the Cook Islands and everywhere. Those are some of the untruths that have been permeated throughout the Maori community. 
 I say to members that if the other party—the under-party the Green Party—can deliver the foreshore and seabed into the ownership of Maoridom then its members should put their signatures on the line. They know very well that they were not able to deliver. They know very well that they cannot deliver and they know very well that the only party in this Parliament that will deliver is the Labour Party with the assistance of New Zealand First. 
Hon RICHARD PREBBLE (ACT) 
: 
 I raise a point of order Madam Chairperson. I did not interrupt the previous speaker because I do not believe in raising points of order to break up people’s speeches but I do think we now need a consistent ruling from the Chair. Earlier a National member suggested that the Government had not told the full truth about the bill and his speech was broken up. He was required to withdraw his statement which I would have said was parliamentary but the previous speaker was allowed to say that I had given a forked-tongue speech. Everybody knows that speaking with a forked tongue is saying that a person is lying. I would have said that that was an outrageous statement and was out of order. I drew the matter to your attention Madam Chair but you did nothing. I decided that perhaps we were having another think about this matter and we would have a vigorous debate. However I would not want us to have a situation whereby people can say whatever they like while the Chair waits for members of the Committee to establish order. Left to myself I am in favour of a vigorous debate. I have to say that although I was not greatly upset by the speaker’s comments I think we need some consistent rules during the debate. When you have ruled on this Madam Chair I want to raise a different point of order. 
The CHAIRPERSON (Ann Hartley) 
: I thank the member for his point of order but just remind him that it was not the same as the one ruled on previously. However the member is correct. I did not quite hear the context and that is why I discussed it with the Clerk at the Table. We clarified that what Mr Prebble said about the use of the term “forked tongue” was absolutely correct. It is after the event and I know that the member would prefer that the debate was more robust but it is quite clear now we have discussed the context that the matter should be ruled on and that the member be required to withdraw his remark. I ask him to stand and withdraw the remark. 
Hon Dover Samuels 
: I withdraw and apologise. 
Hon RICHARD PREBBLE (ACT) 
: 
 I raise a point of order Madam Chairperson. Having broken up the debate it seems to me to be an appropriate time to raise this matter which I want to do very early with the Chair. As I mentioned in my own contribution I have never seen a Government introduce what is actually a completely new bill with no explanatory note as this Government has done and then put it into urgency. I want to suggest to you and have it discussed with the other Chairpersons that the appropriate response from the chairmanship to such a ruling is to allow proper and adequate debate.  
I also draw it to your attention Madam Chairperson that on this bill there was no clause by clause analysis by the select committee. Again when I was first a member of Parliament we would have taken this bill clause by clause which would probably have taken a couple of weeks. All I am saying to you Madam Chair is that I notice that the Committee has not even managed to get past proposed new clause 2A because we do not have an explanatory note and I hope that adequate time will be given. Following the usual rules I will get one contribution on one clause—and I was actually criticised because I had not got on to talking about clause 3. I am happy to give the Committee my views on clause 3 but I can do so only if the Chair takes that into account when the inevitable closure motions come. I just raise this matter now so that you can consider it. 
The CHAIRPERSON (Ann Hartley) 
: I thank the member for his contribution. I assure him that this has been discussed and that there will be plenty of time for debate. 
METIRIA TUREI (Green) 
: 
 The Green Party has a number of amendments to Part 1. The first one I want to talk about proposes to omit new clauses 2A and 3 from Supplementary Order Paper 302. This legislation is racist. I know that is uncomfortable for people to hear; none the less it is the truth. If there is one thing about the whole process of the foreshore and seabed it is that the truth the facts have been continually denied and fallacies put in their place. There has been purposeful deception of the community and the public which is not the way any good Government in any circumstances can be expected to behave and proceed in a democracy.  
One of the fallacies that have been relied on by this Government and New Zealand First is set out very clearly in new clause 2A. There is a fundamental flaw in its reasoning. I will read out this clause for those who may not have had the opportunity to read it: “The object of this Act 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”—and here is the problem—“the protection of the association of whanau hapu and iwi with areas of the public foreshore and seabed.”  
The Ngati Apa Court of Appeal decision last year clearly dispelled the myth that the Crown has absolute ownership of the foreshore and seabed. There is no such thing as public foreshore and seabed—it is a myth a deception that is being used to drum up support from the public who do not have the full information about the nature of the law and of the common law rights that Maori have had before and since 1840 and that are actually still extant. They may still exist and they are due to be explored in law and rightfully so. The fallacy that the foreshore and seabed are owned by the Crown has been continually challenged by Maori for well over 100 years in all the various forums we have had available to us. We have been pursuing those interests continually—hence the Ngati Apa decision. 
Jim Evans a highly esteemed legal professor from Auckland University law school has also clearly articulated that the Crown must first acknowledge that it and the public have been operating on a false premise. Just because one thinks the foreshore and seabed are in Crown ownership does not make them in Crown ownership. Just because one wants them to be so does not make them so. One has to deal first with the actual realities and truths of the situation which is that the customary rights to the foreshore and seabed have not necessarily been extinguished. Maori customary rights may still be extant and they are entitled to be explored in law. The underlying title is still up for discussion and negotiation in the courts. Those rights may still continue to exist and all citizens of our country are entitled to explore fully their rights in the courts. Maori are citizens of this country too and they are entitled to explore the full extent of their rights in law in the courts. Yet this Government operating on the false premise on the fallacy that the customary rights to the foreshore and seabed have been extinguished are denying Maori the opportunity to go to the courts as other citizens are entitled to do to explore their full rights.  
New clause 2A makes this false presumption that there is such a thing as a public foreshore and seabed but as I have said Maori still have unexplored rights in that foreshore and seabed. Therefore it is not public. The underlying title is still in dispute. It is a deception; it is a redefinition of those areas in order to extinguish Maori rights and to confiscate those areas where the courts may find customary rights are still in existence.  
Our amendment to omit clauses 2A and 3 on the Supplementary Order Paper is an attempt to eliminate the fallacies that the Government and New Zealand First are operating on and restore some status of truth to the situation so that at least members of the public clearly understand what is going on for them. One of the other amendments we have proposed is to omit clause 3 which vests the full ownership of the foreshore and seabed to the Crown making what has been untrue to this point legally true but morally wrong—ethically wrong. It is an unnecessary clause. There is no need for Crown ownership to be vested in this full way in the bill.  
Other options have been proposed by submitters and various people since this issue has come up for discussion. Those options include allowing Maori to proceed to the courts to have their rights explored like other citizens are entitled to do. That exploration would not be confined only to the legal principles from overseas jurisdictions like Canada and Australia. In fact those explorations would occur within the treaty jurisprudence that has already been developed in this country over the last 30 or 40 years. We have a different situation here. Government members continue to argue that this bill will give Maori more than what they would get in the courts. 
Rt Hon WINSTON PETERS (Leader—NZ First) 
: 
 After that legal dissertation I want to say that I am going to organise a lunchtime meeting between “Tariana Turei”—[ 
Interruption 
]  
The CHAIRPERSON (Ann Hartley) 
: I am sorry to interrupt the member but Mr Brownlee will not contest rulings like that. 
Rt Hon WINSTON PETERS 
: Particularly when I am his senior. 
Metiria Turei 
: I raise a point of order Madam Chairperson. I suspect that the member may have been referring to me; if so he mispronounced my name completely. I ask that he pronounce my name properly. 
The CHAIRPERSON (Ann Hartley) 
: It is always best to— 
Rt Hon WINSTON PETERS 
: Who cares! 
The CHAIRPERSON (Ann Hartley) 
: No for order in the Chamber members should always be referred to by their correct name. 
Rt Hon WINSTON PETERS 
: Madam Chairperson I have had three interruptions before I have even got going. Can I start now? 
The CHAIRPERSON (Ann Hartley) 
: It is not off the member’s time. 
Gerry Brownlee 
: I raise a point of order Mr Chairperson. We have been repeatedly assured that there will be a significant amount of time for debate. The expectation is that a number of members will take more than one call on this debate. That matter has been discussed as you are aware. Can I ask whether it is correct that this is the second call from New Zealand First. I understood that Dail Jones spoke. 
The CHAIRPERSON (Ann Hartley) 
: To interrupt a member’s speech for that point of order when the member had already been corrected by the Clerk— 
Gerry Brownlee 
: Not on that point. 
The CHAIRPERSON (Ann Hartley) 
: I have already warned members this morning that when I am on my feet giving a ruling there will be silence. I now give another warning on that. I have already indicated quite clearly when ruling on Mr Prebble’s point of order—and I assure the member as I assured Mr Prebble when we discussed this—that plenty of time will be given. 
Rt Hon WINSTON PETERS 
: This is the first contribution from New Zealand First in this debate. We want to bring some sanity to this side of the Chamber. I am offering to organise at lunchtime today a meeting between Tariana Turia Metiria Turei of the Greens and the National Party. It is a very important meeting that I have to organise and I will tell members why. It is because the first two say that Maori are getting nothing and the National members on my right say they are getting everything. So I am going to organise this public meeting in the Beehive so that they can sort this out then come back to the Chamber this afternoon and talk some sense for the first time. I have never heard such a ridiculous debate.  
The second point I want to signal is that I want to know from Dr Cullen where his secret bill is—the covert clandestine bill that the National Party keeps addressing. We have never seen it. It may exist. It may be somewhere out there in the ether. After hearing National members talk last night and today I know that there has to be another bill. It is not this one. There has to be a secret bill somewhere else that Dr Mapp keeps addressing. He said that Maori can get all these things by private arrangement and by private deal but he never admitted that they could not get a thing under this bill in the way that he described. It is not that Maori are not going to get a fair go but he knows demonstrably because he is a law lecturer that they cannot get the things that he is talking about under this legislation. So why on earth does he keep on saying it? Why on earth do the Greens act that way? Why does Tariana Turia keep making those speeches? Why is the National Party doing the same at the other extreme? I hate to say it but I think it is about politics. I think it is about raw venal selfish politics. At a time when the country calls out for a sense of unity on an important matter all they can do is play petty shallow politics. Would they do us a favour— 
Hon Dr Nick Smith 
: Here’s the expert. 
Rt Hon WINSTON PETERS 
: The expert is Dr Nick Smith. He is a real expert. Do members remember when he was head of the Department of Conservation? He was up there taking land off Maori everywhere. 
Hon Dr Nick Smith 
: Name one. 
Rt Hon WINSTON PETERS 
: Rawhiti 2B. These members know full well about the prime paradise of Ngati Wai on the southern reaches of the Bay of Islands and he was going to take the whole lot off them. He said: “Look I’ll give you a deal. I’ll look after the possums and the pests but you give me the land.” That was his idea of a deal. Every fifth acre there would be worth $1 million and there are thousands of acres and he wanted to take the whole lot on behalf of the socialist State that he was then the head of. Talk about—I cannot use the word but it starts with “h”. Where did this mess start? It started with an Act passed by those geniuses after they had thrown me out of the National Party between 1991 and 1993. I remember it. I warned them about their stupidity but no they knew better. They gave Doug Graham a knighthood for it. They all signed up and said: “Yes Doug yes Doug three bags full.” Yet here they come today as some sort of Pontius Pilate saying “We come with clean hands.”  
I am glad that people are not hearing that from New Zealand First. I am glad that they are not hearing that shallowness and banality from New Zealand First. Can I ask the Committee a question? Why would a party that calls itself conservative oppose the Crown having the foreshore and seabed reposed unto it?  
Why would a party that says it believes in one law for everyone oppose this bill? 
Hon Dr Nick Smith 
: Because it doesn’t have one law for everyone. 
Rt Hon WINSTON PETERS 
: There we go. Here is the genius on law. He is so good on law that he was recently in court and he got done over like a dinner yet he still thinks he is right. The poor guy was told by his colleagues: “Dr Smith don’t say that. It’s illegal. Don’t do it.” But no he knew better. 
Hon Dr Nick Smith 
: That’s not true. He’s making it up. 
Rt Hon WINSTON PETERS 
: No I am not. The member’s colleagues told me. 
Hon Dr NICK SMITH (National—Nelson) 
: 
 This bill is racist. This bill is flawed. The tragedy is that for all those in this Chamber who claim to care about our 18000 kilometres of coastline and beaches this is a bill about politics not a bill about doing the very best for the management of our coast. I want to start by quoting from a former Labour Prime Minister whose words Margaret Wilson likes to regularly trot out. He said this: “The Labour Party opposes the approach that laws are introduced one day and passed the next.” That is what Geoffrey Palmer said. But this is even worse. The Government is introducing and passing a law on exactly the same day. These 135 pages of law were tabled only last night. It is a disgrace that the New Zealand media are not exposing the Government for that sort of abuse of this Parliament. It is an abuse because of what we see in this bill.  
Dover Samuels said earlier that it is OK for the Government to pass 135 pages of law without it ever being debated without it being tabled in the House and without it being distributed to local government and any of the groups that have a substantive interest. He says that that is somehow OK because people have opposed it. He says: “Oh National members on the select committee expressed the opposite view.” So somehow he thinks that makes it OK to abuse Parliament. The member is wrong.  
This part introduces a concept of foreshore and seabed reserves. We have never heard of them before. The concept was introduced only yesterday. I have some questions for the Minister in the chair Margaret Wilson. Can there be marine reserves over the top of areas that are foreshore and seabed reserves? Does the Minister know? I will ask Dover Samuels. I ask any member of the Labour Party to answer this question: can there be a marine reserve and a foreshore and seabed reserve in the same area? It is an important question. Can Winston Peters tell me? Nobody knows! Here we are being asked to pass legislation to create a new form of reserve— 
Rt Hon Winston Peters 
: Of course not you fool. 
Hon Dr NICK SMITH 
: Sorry? 
Rt Hon Winston Peters 
: Of course not. You’re an idiot. 
Hon Dr NICK SMITH 
: Where does it say that there cannot be a foreshore and seabed reserve where one of our 14 reserves has been created? Can the member answer this question: can there be a mataitai reserve in the same area that there is a foreshore and seabed reserve? What does Dover Samuels say? 
Hon Dover Samuels 
: We can reserve a plot just for that member. 
Hon Dr NICK SMITH 
: I asked a serious question. The Minister in the chair has given lectures about unbridled power and about Parliament introducing and passing bills on the same day. That is what she said at the election. What does she do in Parliament? She has not taken a single call to explain any of the 135 pages of law that is being rammed through this Parliament under urgency. Can somebody answer me as to whether there can be an aquaculture management area in the same area in which a foreshore and seabed reserve has been created? Dail Jones says that he has been involved in this bill’s drafting. Can he answer that question? No he cannot. Can Mr Fairbrother?  
Russell Fairbrother 
: Clause 28 is your answer. 
Hon Dr NICK SMITH 
: He says it is explained in clause 28. Clause 28 does not exclude any area from being a foreshore and seabed reserve. My point is that this bill will make a diabolical mess of the management of the most precious areas of New Zealand. This is not a sensible way of managing these areas. This bill is solely political. I ask members opposite how they can sign up to this. When they were in Opposition I often heard their bleating about bills being passed under urgency—bills that had been around for weeks or months. Now we have 135 pages of law that was tabled only last night being rammed through Parliament. The Minister in the chair has the cheek to say to the deputy leader of the National Party that he might not understand it all. That is not surprising.  
MAHARA OKEROA (Labour—Te Tai Tonga) 
: 
 I have been moved to rise by the previous speaker’s statements that this bill is racist. Let me remind this House that as a Minister that member Nick Smith took an action against Wakapuaka reserve which already had an existing blue-water title that had been enshrined by the Maori Land Court a number of times and which enabled the Ngati Tama people of that area to get on with their business as the tangata whenua. Oh no! He prefers to lead a charge which I shall call racist amongst the community of Nelson against the inherent tangata whenua rights of the Ngati Tama people which were enshrined in law on the basis that they somehow exclude access to their estuary.  
This is private Maori land and the estuary has a blue-water title. The only reason that Ngati Tama—and I hope Dr Mitchell is listening to this—has put a gate across the access is to ensure that people who want to visit treat the estuary and the foreshore and seabed with respect. It is there so that people do not drive their four-wheel drive vehicles up and down unfettered and leave their rubbish around this estuary that has a blue-water title that is in the ownership of Ngati Tama ki Wakapuaka. The member wonders why under clause 2A we have included the statement “including the protection of the association of whanau hapu and iwi with areas of the public foreshore and seabed.” One of the reasons that is included is that misguided influence and ministerial authority leave those tangata whenua in a difficult position. That case is still before the courts.  
Hon Dr Nick Smith 
: Because your Government is appealing it. 
MAHARA OKEROA 
: So what do the people do? Because he was the Minister of Conservation. So not only he suffered but so did a certain section of tangata whenua ki Te Tau Ihu o te Waka. I am appalled that some members of the Opposition who are not supporting this bill view clause 2A as being deeply racist. I am absolutely appalled that we started the discussion this morning on that level. It demonstrates for us that there is nothing to fear about this. Maori have for many many years insisted on a right as Maori so that they can protect themselves— 
Hon Dr Nick Smith 
: A special right. 
MAHARA OKEROA 
: So that they can protect themselves I say to Mr Smith into the future from the misguided views and visions of people of his ilk. One submitter from Nelson came to a submission hearing we had in Christchurch. I must endorse her courage. She stayed even though her message was obviously totally unpopular given the context. She was carrying a message that was very similar to the messages we are hearing this morning about this law being deeply racist. She appended that with her experience of Wakapuaka. How can this law be deeply racist? I fail to understand that when we are discussing whether Maori—whanau hapu and iwi—can be included in clause 2A. To exclude that is racist. So what National left in its wake is a diabolical mess. 
LARRY BALDOCK (United Future) 
: 
 It is not surprising that when the Hon Nick Smith a former Minister of Conservation leaps to his feet to give his first speech in this debate the first question out of his mouth is: “What about marine reserves?”. It seems that whenever people get anywhere near the Department of Conservation they start thinking about grab grab grabbing marine reserves and more estate for the department from all around the country. So that was the first question out of his mouth. 
The answer to his question from my reading of the bill is that it would probably be up to the guardians of the new reserves to determine whether there would be marine reserves within the new reserves. I think that is a jolly good idea. A lot of New Zealanders would like to see more control over their inshore area rather than see the Department of Conservation slapping marine reserves all over the place wherever it thinks it can protect this wonderful environment. So I do not see that it is a bad thing at all that this bill gives more control back to the people of New Zealand. 
In fact that is largely what clause 2A is all about. United Future welcomes the amendment from the Deputy Prime Minister to introduce clause 2A “Object” which states: “The object of this Act 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”. We could almost have taken that statement and put it under the interpretation clause clause 4 with the heading “Public domain”. I think it is a pretty good definition of the concept of public domain that we were talking about in the very beginning. 
So United Future will be supporting this amendment because we think it goes a long way towards calming the people of New Zealand down about what is going on in this legislation and this debate. It is not just about Crown ownership as has been claimed by Winston Peters and New Zealand First. I think the definition has broadened out considerably and that is a good thing. As my colleague Gordon Copeland said earlier the idea of Crown ownership has carried with it some negative connotations. It is important for us to speak about it being for the benefit of all New Zealanders—the common heritage of all New Zealanders. Those are very good words. 
The amendment further provides that the object of the bill is to protect or preserve the foreshore and seabed in perpetuity which is why I have tabled this morning an amendment to entrench clause 12(2)(a) when we come to debate Part 2 later on so that this Parliament does all we can to make sure that it is very difficult for any future Parliament to sell off or transfer the title of the foreshore and seabed to anybody else. It will be held in perpetuity as the common heritage of all New Zealanders. I think that will be a very very good thing. I will be asking all the parties in the Committee to support that Supplementary Order Paper when we vote on Part 2 later on. 
Clause 2A also includes the concept that the Crown is to protect the public foreshore. Crown ownership is for the protection of the public foreshore on behalf of all New Zealanders. I think it is time to begin to discuss that in our debate. There is not enough going on to protect the foreshore and seabed in New Zealand. We are prepared to march to Wellington about the ownership of it but the crucial issue is what is going on there. Pollution is still occurring. Siltation is still occurring from run-off from the land. There is pollution in all sorts of forms. Raw sewage is still going into our sea and siltation occurs every year in the construction season. We create siltation ponds that are not adequately monitored then when we get a bit of extra rain one summer—as happened this year—the entire Tauranga harbour turns brown because suddenly a huge amount of clay goes into it and destroys that pristine foreshore that we all like to walk on and enjoy. Instead of having sand to walk on we have mudflats all over the place. It is a disgrace. 
Instead of having such a huge fight about the title and the ownership we should be having a big debate about doing more to protect these areas. Our regional councils are not monitoring those issues and are not imposing fines on the people who are polluters of the foreshore and seabed area. I hope that when the bill finally becomes law the Crown will take up its responsibility to do a lot more about protection. Protection is not just about imposing marine reserves because there is no point in having marine reserves for the protection of our seabed and marine environment if we have pollution flowing off the land. It is even coming out of the Department of Conservation estate and nothing is being done about it. 
DAIL JONES (NZ First) 
: 
 I have sought a call although it seems almost superfluous for me to speak in this debate my having been mentioned so many times in despatches by members all around the Chamber! It has been a great honour to take part in the work on this legislation to ensure the protection of the national interest and to have the foreshore and seabed in the ownership of all New Zealanders. New Zealand First is prepared to show leadership in this matter among the Opposition and that is embodied in no better form than that of our leader the Rt Hon Winston Peters. 
I particularly wanted to follow on from Larry Baldock because of what he said. He referred to the discussions in the Fisheries and Other Sea-related Legislation Committee on effectively clause 2A. We in the committee said—and I am sure that Dr Mapp will remember—that we wanted a clause in the bill that would state something along the lines of what is in clause 2A: “The object of this Act is to preserve the public foreshore and seabed in perpetuity as the common heritage of all New Zealanders …”. That was a point we wanted to emphasise. We asked the officials whether they could put something together to reflect that view as that was what the members of the select committee wanted. When clause 2A came forward I could see exactly what the officials were getting at. It reflects the views and wishes of the select committee as a whole—including at that time the National Party members on it. But of course National members are always ready to oppose anything even if they might have supported the concept of common heritage and of having something extra in the purpose clause which is what clause 2A achieves. 
Many people might be interested in what the bill actually says. I know that various Kawau Island groups including the Kawau Island ratepayers were concerned—as were others—about for example the definition of “foreshore and seabed”. They may not be able to get a copy of the amended bill immediately but I tell them that we have made an alteration to the meaning of foreshore and seabed. It now: “(a) means the marine area that is bounded—(i) on the landward side by the line of mean high water springs;”. That is the meaning that is now in the bill. We have removed the reference to “high water line at mean high water spring tides”. As I understand it some people were concerned that the previous definition effectively took it too far. We now have a more reasonable definition of what the high-water mark is and what the marine area is on the landward side. On the landward side it will be bounded by the line of mean high-water springs. People who are interested in the bill should perhaps take more note of that. [ 
Interruption 
] 
Mr Mapp keeps chirping away. I was disappointed that he tried to make a personal reflection on me when he spoke. That was quite unusual for him. He had become quite excited by this legislation and I regret that I had to raise a point of order on him about it. Obviously he is concerned that he has been totally unsuccessful on behalf of the people of the North Shore. I can tell him that I am trying to do something about that matter with the Minister now and there might be some improvement in that area before the day is out. The North Shore City Council did not get hold of New Zealand First to deal with that particular issue but I think it has realised its mistake and now we are trying to do something about it. We will see what might happen later on and whether we can achieve something in the meantime. 
There are various new definitions in the bill such as “guardians” and “kaitiakitanga”. [ 
Interruption 
] I thank members; I admit to being an absolute novice but I am prepared to learn even if Georgina te Heuheu’s National Party members are not prepared to learn about Maori matters. That is why they have dismissed her from the National Party altogether. I as a member of New Zealand First a recent immigrant am prepared to learn about Maori things even if— 
Hon Ken Shirley 
: What does it mean? 
DAIL JONES 
: It means guardianship. Mr Shirley does not know what it means so I will help him. The use of that word is extremely important because time and time again Maori submitters to the select committee said they wanted to retain guardianship. It really impressed me and that is why New Zealand First has made sure that any foreshore and seabed reserve is protected by guardians. It is so much common sense really. It is good to see that New Zealand First has been able to achieve that in the legislation. Simply put this bill protects—[ 
Interruption 
] I have to put it simply for some members of the National Party whom I am always willing to help on this legislation—as I did when it was first introduced. 
MITA RIRINUI (Labour—Waiariki) 
: 
 I start by saying that probably the best proposal put to the Committee this morning was the proposition by the Rt Hon Winston Peters that he convene a meeting at lunchtime today of the Opposition parties for their benefit so that they can get their lines right—for that simple reason. 
Most of them oppose this bill but for different reasons. National Party members have described this bill as racist. At the same time its members on the Fisheries and Other Sea-related Legislation Committee supported Crown ownership. They also acknowledged that Maori had customary rights over the foreshore and seabed. If National members did not have that view they would never have passed Tainui’s settlement Act and the Ngai Tahu Claims Settlement Act. Both those Acts refer to the customary rights of those iwi. National Party members also support the concept of public access being protected. Given all of that and given that they still oppose this bill one wonders how they determine their position. 
I shall also comment on the contribution made by the Hon Richard Prebble earlier today. He referred to the object of the bill as being racist. He read out that clause and he seemed to have an issue with that two-part statement. The first part of it acknowledges the common heritage of all New Zealanders and the second part acknowledges the association of whanau hapu and iwi with the foreshore and seabed. Which part of that does he consider racist? Is he suggesting that we take out the first part—the common heritage of all New Zealanders? He did not make that very clear. He did not understand the second part which I find very interesting given that he belongs to a party that acknowledges property rights. Really this matter is about Maori property rights and that is reflected throughout this bill. 
I also want to touch on a matter raised by the United Future speaker Gordon Copeland. Obviously like the Rt Hon Winston Peters the Hon Dover Samuels myself and many other people in this House he has a strong association with the foreshore. Many of us experienced an upbringing in which we enjoyed the leisure time we spent at the beach. Mr Copeland believes that this bill will stop him from doing all those kinds of things that he has done in his life. That is absolute rubbish. He needs to go back to the bill and read it very very carefully. He will find that nothing will change following its enactment. 
I have tried to get a fix on the Greens’ position. I am afraid I am still trying. It seems they share the view of ACT that the bill is racist but ACT believes that any acknowledgment of Maori customary rights is racist because they are rights peculiar to Maori. What is racist about that? Those members also believe that the bill threatens the rights of access of the general public. That is also not true. It is stated quite clearly in the purpose clause of the bill that public access is guaranteed. Throughout the select committee hearings process all the Maori submitters made it very clear that it was not their intention at any time to inhibit public access to the foreshore and seabed. 
Dr Wayne Mapp 
: Actually that is not true. Margaret Mutu said she should deny access. 
MITA RIRINUI 
: I think Mr Mapp is doing Margaret Mutu a disservice. Although she has some very strong views about the bill one thing she was adamant about was that there was not a threat to public access. Mr Mapp needs to get his statements correct. I recall his misquoting a number of the submitters who came to the select committee and suggesting that they were threatening the rights of all New Zealanders when in fact all that they were doing was spelling out their rights very clearly to the select committee. Those rights have been taken into consideration. If we had been given the opportunity to report back in the way that we would have liked with amendments to the bill those points would have been made very clear in the report. But we were denied that opportunity and here we are with a very very lengthy Supplementary Order Paper. 
A lot of attention was given throughout the hearings process to Maori development rights. Like many iwi around the country my people Mataatua and Te Arawa have very very strong links with the foreshore and seabed. We have always been very active in the fishing industry—although this bill is not about fishing or mahinga mataitai; it is in fact about other areas of customary rights. In particular my people Ngati Whakaue have an ancestral connection for want of better words to a particular area on our coast. We have used that area in the past for commercial gain for the benefit of our people. 
Hon GEORGINA TE HEUHEU (National) 
: 
 That member’s days as the electorate MP for Waiariki are numbered. However it was good to see him on his feet. I am pleased to rise in the debate on Part 1. I want to make some comments about other comments that have been made by members particularly members from the Government side of the Chamber. Dover Samuels showed the arrogance of a Labour Government member when he commented about the Opposition “blah-blahing” on about the late introduction of a significant Supplementary Order Paper. It does not matter whether we got Supplementary Order Paper 302 in the name of the Hon Dr Michael Cullen only yesterday; it matters to the New Zealand public that that Supplementary Order Paper was not open for scrutiny by people outside this House. The only reason we are here is to represent the interests of people outside this House so we need to get it right.  
Dr Cullen had a bit of fun directed at the National Party when he talked about a brown face on the Opposition side of the House having a part in drafting this law. He and the Maori members on the Government side should get with the plot. It is a brown face that will ensure this legislation passes into law—and no credit goes to that person. 
Hon Dover Samuels 
: Where is the brown face in the National Party? 
Hon GEORGINA TE HEUHEU 
: The brown face I refer to does not sit on the Government side of the House. So no matter how much the Labour Maori MPs puff out their chests and pretend that this is their bill and that they have delivered a lot for Maori it is not a brown face over there on the Government benches that has done that. In fact it is Mr Peters. If Government members look in the mirror they will see his image staring back at them. But of course it is no credit to Mr Peters that he has supported this bill. If this bill is good for Maori why is it that Tariana Turia walked and why is it that Nanaia Mahuta is still hedging her bets? She voted against the bill in the first reading and she is still hedging her bets. So Government members should not puff up their chests and say this legislation is great for Maori. In fact they should not even puff up their chests and say it is great for all New Zealanders because there are uncertainties in it and that is where the rub comes.  
Dr Cullen also wrongly stated that I have said that Maori are not getting enough. That is not a statement of mine. What I have commented on is that Maori are not getting the thing they wanted the most which is due process of law and the right of all New Zealanders to go to the courts—and that comes from a Government that for all but 3 of the last 70 years has enjoyed the overwhelming support of Maori excluding me of course. I am as keen as anyone to ensure that the rights of all New Zealanders to our foreshore and seabed are protected. Of course balances have to be found. That is where we come to the object clause clause 2A which on the face of it sounds good. It states the object 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.”  
On the face of it that it sounds good but when we look into the detail of the bill we see that uncertainties remain. If the Minister in the chair will not clarify some of those uncertainties then perhaps Winston Peters who is actually the main person who is getting this bill through Parliament should be sitting in the chair. The uncertainties are issues like these. When Maori go and get their customary territorial rights what rights will they actually get? When the Labour Government says to New Zealanders that their rights of public access will be protected how will those rights be balanced on the ground? How will they be balanced on the ground when Maori have certain customary rights that will be defined and then the Government also says public access will be guaranteed? 
Rt Hon WINSTON PETERS (Leader—NZ First) 
: 
 Whatever Ngati Wai had 2 years ago they have got today and they will still have it this Friday when the Foreshore and Seabed Bill is passed. But does anybody remember the surplus land at Paraparaumu Airport which was taken from the Maori people and then sold under a National Government? Did that Government offer the land back to the Maori people who had a legal right of first option? No. What did the Government do? It sold the land for a pittance to one of its mates denying the Maori people everything in that case. [ 
Interruption 
] The member asks what that has to do with the bill. What it has to do with the bill is that National members should not come and tell us about the National Party’s tutelage in so far as the Maori people are concerned. What has happened up north? All the Poor Knights Islands reserve was taken by a National Government off the Maori people. 
Hon Dr Nick Smith 
: Good reserve. 
Rt Hon WINSTON PETERS 
: The member says it is a good reserve. Right now promoted by him as well is a proposal for 16 times that area at Mimiwhangata—and he would defend that. That area which belongs to the Maori people there in terms of ancestral use he would walk all over. But all of a sudden the Maori people are meant to find some sanctuary in the National Party!  
 I remember that in 1993 and this is very apposite to the bill at 11.30 one day—I was not in the National Party caucus then but I remember the circumstances very well—in came Bill Birch and Jim Bolger and they were going to give the Maori wardens in the tribal zones the right of arrest. There was no notice given of that to any other party or even to the National Party. They were going to hijack the whole organisation. Now somebody here in the Chamber must remember that. Oh the National members are very quiet now. So what happened? That night on the  
Holmes  
show at 7 o’clock one National Party guy blew the whole thing wide open. And on the show later that night Jim Bolger came on and said the proposal had been dropped. That is the National Party. Those members rant and rave about Maori getting everything when their whole background is to have done things for Maori that Maori should not have done for them and not to do things for Maori that they should have done for them.  
I can recall National winding up with $92 million of debt on Maori kiwifruit orchards and when I said I would sue that Government for a failure to exercise a duty of care the National members ran around the gallery saying that I favoured Maoris. I had a whole lot of legal opinions and I said to Ruth Richardson we would sue that Government for the appalling way it had built that debt up over Maori kiwifruit farms. Did the National members say I was right? Oh no! Did they say that the legal opinion I had was irrefutable? Oh no! They just went around and tried to bag me.  
Hon Member 
: What’s that got to do with the bill? 
Rt Hon WINSTON PETERS 
: What it has to do with the bill is this. The National members have never understood this bill. They have never understood the select committee process. They have never understood the fundamentals that they claim to preach—one law and Crown ownership. Oh yes—and here is the rub. They get up talk about clause 2A and want to know why whanau hapu and iwi appear in that object clause. Well that is obvious. It is because Maori have a different perspective from the rest of the country and it differs iwi by iwi.  
Hon Member 
: It’s not obvious at all. 
Rt Hon WINSTON PETERS 
: That is obvious to anybody who understands Maori. But then again if one goes to Orewa and makes a speech in which one says that Maori have no culture at all then one will make the kind of fallacious mistake that those members keep on making.  
Clause 2A is in the bill because there are some people in this world who recognise that cultures are different in the way that they see things. People from different cultures can operate under the same law but the standards by which they may approach a problem or an issue could be in terms of their perspective different. It is as simple as that. So why is the ACT party doing a triple somersault and a side twist and trying to land on its feet? I heard Mr Prebble. He made much of that clause this morning did he not as if it was something incomprehensible that he could not understand. That is what he said—he said that no court would understand it. Well I tell members something. One could leave out the words “including the protection of the association of whanau hapu and iwi” but if one adds them in it just demonstrates that one may understand that different people see things in different ways.  
However whilst I am at it I will talk to the Maori Party and ask how many of its leadership have sold Maori land? What is the record on the sale of Maori land by the leadership of the Maori Party? Can that party say like I can that it has never sold an inch ever? The Maori Party should not come here with a whole lot of people and preach about the Maori people and their heritage when its background is ridden with people who have sold Maori land and worse still the people in its leadership have never been off the State’s teat since they left school. They have never been privately employed; they have been on the State’s teat since they left school. [ 
Interruption 
] 
The CHAIRPERSON (Hon Clem Simich) 
: I warn Mr Samuels for the last time. 
GERRY BROWNLEE (Deputy Leader—National) 
: 
 I raise a point of order Mr Chairperson. That is his third warning. I just want to know what the process is. We notice that Mr Peters has had two calls New Zealand First has had I think four— 
Opposition Members 
: Three! 
GERRY BROWNLEE 
: I am sorry; I thought that that party had had more than that. I thought that party had more competent members. With no disrespect intended to Mr Prebble I notice that he is now getting a second call. A number of our members want to make contributions on this part. After all unlike the ACT party we do represent constituencies and have a direct association with voters. Further I would like to say that I intend to take a second call. I would like to have an assurance that the Committee as we approach the second hour of debate on this particular part will not suddenly be bombarded by requests for closure motions. 
The CHAIRPERSON (Hon Clem Simich) 
: Thank you for raising that issue. I am quite conscious of it. All parties will have their opportunity to take part. 
Hon RICHARD PREBBLE (ACT) 
: 
 Let me make it quite clear to Gerry Brownlee that as a list member I represent constituents—every New Zealander both Maori and non-Maori—and I intend speaking in that way. 
I have to say to Mr Peters that his last contribution really sounded like that of an old man going back and talking about his past grievances. He is stuck in history telling us all about what happened to him in the National Party caucus. He lost. He should get over it and start again. He was booted out and he should move on. 
Let me take up the matter that Mr Peters raised with the Committee: how can people say this bill is racist and how can people say that Maori have lost everything and they have gained everything? I will take him through that. 
Let me first explain why the bill is racist because Mr Peters’ claim that Maori will next week have everything they had last week is simply not true.  
Rt Hon Winston Peters 
: It is. 
Hon RICHARD PREBBLE 
: In this bill I say to Mr Peters no non-Maori lose any freehold right that they have over the foreshore; no non-Maori lose that. But the Court of Appeal said there may well be iwi in New Zealand who actually do own freehold foreshore. They lose that. 
Rt Hon Winston Peters 
: No they don’t. 
Hon RICHARD PREBBLE 
: Yes they do. Under this bill Maori—and Maori alone—lose that title which they now have. The court does not create it; it just recognises it. The court does not create it; it says: “No Maori own it.” That is why the bill is racist—because only Maori lose that property right under the bill.  
Hon Member 
: Tell that to the people of Matauri Bay. 
Hon RICHARD PREBBLE 
: Thank you very much. The next point that I want to make is why people can say that Maori gain enormously under the bill. One has to look to Supplementary Order Paper 303 which came in so late that it is not even in the redline copy. It says that the actual title of the bill will be changed; part of the legislation will be called the Resource Management (Foreshore and Seabed) Amendment Act. Why is that? Because when we look through the bill we discover that under the Resource Management Act a whole lot of new rights have been created for Maori—and only for Maori. They are not for anyone else; they are only for Maori. Yes there will be some Maori who do well. If I might use Mr Peters’ own colourful phrase when criticising the Treaty of Waitangi fisheries settlement—he said that no ordinary Maori had seen a snapper which was true—under this Resource Management (Foreshore and Seabed) Amendment Bill no ordinary Maori will get a pipi but the “Browntable” to use another of his colourful phrases will do well under it. For the people who have made a fortune out of the grievance industry this bill is a new gold mine. The lawyers the accountants and the white-shoe brigade will do well. 
That is why there is the irony that Maori lose under this bill; they alone lose their property rights. That is why the bill is deeply racist and a disgrace to this Parliament. How on earth can we be starting this century with racist legislation that removes property rights but only from one race in this nation? That is a disgrace! I cannot understand how the great Labour Government could possibly be introducing such a bill. 
Then it goes and introduces something that my friend Mr Shirley calls socialism and that is what it is. There is a new saying of socialists: one does not have to actually own it—just regulate it.  
Hon Ken Shirley 
: Control it. 
Hon RICHARD PREBBLE 
: This bill does hand over control but not to all Maori—only to those Maori whose activities we have already seen on the Treaty of Waitangi settlements on the Treaty of Waitangi gravy train. The gravy train has just been turned into an express by this bill. This bill will cause legal uncertainty and there will be case after case. This bill actually solves nothing; it makes things far worse. 
Hon MARGARET WILSON (Attorney-General) 
: 
 I rise to make a clarification in the light of the previous member’s presentation of the bill as being racist on the grounds that no non-Maori loses private property rights. It is true that no Maori or non-Maori who has private property rights loses them under the bill so it is not discriminatory in that sense.  
Hon Richard Prebble 
: Rubbish! 
Hon MARGARET WILSON 
: If the member would just bear with me for one second so that we can go through—as he has been kind enough to raise it—what the Court of Appeal actually said and what it was deciding. The Court of Appeal was deciding whether there should be a process for determination by the Maori Land Court of a common law customary title. At common law those titles are not alienable; they are not fee simple titles. It is true however that the only jurisdiction that the Maori Land Court has is under the Te Ture Whenua Maori Act which does provide for fee simple title but not for a customary common law title. Therein lay the dilemma because when that Act was enacted there was no intention that it should cover wetland—only dry land. 
Hon TONY RYALL (National—Bay Of Plenty) 
: 
 I would like to speak to the various purposes of this bill and just observe that there are many many contradictions confusions and conundrums in this bill which will be causing never-ending problems for Parliament in the years to come. 
The issue with the legislation is this: the problems will not be seen next week they will not be seen before Christmas and they will not be seen next year; but 2 or 3 years later the problems caused by this legislation will be seen at Mount Maunganui Papamoa Maketu and throughout the rest of this country. New Zealanders will ask why Winston Peters travelled up and down the country telling the people of New Zealand that this legislation was OK. Government members must be laughing all the way back to their offices. They have brought in this legislation and Winston Peters is going to sell it for them. He is going to lose whatever shreds of credibility he has left when he has to go around New Zealand defending this legislation. He is the man the Government is looking to to sell this legislation.  
Marc Alexander 
: The poodle. 
Hon TONY RYALL 
: No Winston Peters could never be described as a poodle. This bill will haunt Parliament in generations to come. Only a few of us in this Chamber will still be here when Parliament has to wipe this legislation and start again. This legislation is going to be a weeping sore in this country in generations to come because it lays nothing but confusion and division before the people of this country. 
This Government cannot answer basic questions like this: if we can have a foreshore and seabed reserve and a marine reserve and an aquamarine management area and a mataitai and a taiapure how do they all fit with each other? If we have a foreshore and seabed reserve can we also have a marine reserve? Mr Peters said that we cannot. The officials say that we can. That tells us we will have no end of confusion over who runs these things. It is fine for a few city members to come down to the Chamber and argue why we should have this divisive legislation but for those of us who represent coastal New Zealand who are at the forefront of where the conflicts will be I want to tell this Government that this bill is a recipe for disaster and division. And the problems will not be seen in the next couple of years. It is in the next few years that people will see them. It is in 2 3 or 4 years’ time that the conflicts and the division will come forward. 
They will come forward for this reason: when people are given rights to exercise control they will eventually want to exercise those rights. It may not happen tomorrow but it will happen. What that will mean is that regardless—[ 
Interruption 
] Government members may laugh but I say to Mr Fairbrother that he will not be here when Parliament has to deal with the mess that this Government and the New Zealand First Party are leaving this country. Mr Peters is being used by this Government to try to sell to this country what is a divisive and ineffective policy. If Mr Peters has read this bill as well as he read his Cabinet papers then I am worried.  
NANDOR TANCZOS (Green) 
: 
 I am ashamed to be witnessing what is happening in this Parliament today. What we are seeing is a new raupatu—a new confiscation—in this Parliament in the year 2004. Government members can argue about it trying to convince themselves and the rest of the country that that is not what is going on but this bill is nothing other than a confiscation of Maori property rights. I find it curious that at a time when we are spending hundreds of millions of dollars trying to patch up injustices from the past trying to address ongoing suffering and grievance arising from confiscations of the past we are about to perpetuate the same thing in Parliament today. I am ashamed to see that. 
I do not doubt that there are members on the Government side who also feel shame at what is going on. I find it curious when I hear intelligent members of the Government talking about this measure—people like John Tamihere who has fronted the Government campaign on this issue—and saying it is not taking away rights from Maori. I fail to understand how the member can say that. I heard Russell Fairbrother who chaired the Fisheries and Other Sea-related Legislation Committee talking about his mokopuna last night and I challenge him to think about the legacy he is leaving for his descendants when it comes to this bill—the legacy that he and this Government are leaving. 
I know that this bill is passing with the support of New Zealand First. I do not doubt that some New Zealand First members also feel ashamed of what is happening today although we would not know it because most of them clearly are not allowed to speak on this bill and are leaving it to only Winston Peters and Dail Jones to do so. I debated on  
Marae 
 with Winston Peters on this very issue and I challenged his position on this— 
Rt Hon Winston Peters 
: Where? 
NANDOR TANCZOS 
: On the  
Marae 
 programme. Maybe Mr Peters does not remember but if he checks the video he will see it there.  
Rt Hon Winston Peters 
: Which one? 
NANDOR TANCZOS 
: He tried to deny it on Maori television but his own website showed that the New Zealand First position was to confiscate not only foreshore and seabed but waterways mountains and forests as well. Of course he tried to deny it on Maori television but his own website showed it. 
It is telling that New Zealand First put Dail Jones in charge of negotiating this issue. Dail Jones is a man who follows the Justice Prendergast interpretation of the treaty. He believes that the treaty is a nullity. How could New Zealand First put him in charge of negotiating the New Zealand First position on this bill? 
The Government has ended up relying on New Zealand First because it has got itself in a very difficult position with its knee-jerk overreaction to the finding of the Court of Appeal. It is true as Dover Samuels has said that there has been a lot of misinformation about what the Court of Appeal said. It did not say that Maori own all the foreshore and seabed but that does not take away from the power of what it actually did say. What it said was that the Government the Crown in general did not own the foreshore and seabed and that Maori could go to court to prove their customary ownership. The Court of Appeal stated that that would be difficult to prove and it implied that there would not be many places in the country that would be affected but it recognised that Maori had that right. But the Government for its political advantage chose to rark up Pakeha fear about Maori closing off access to the beaches. It knew that was wrong and false but it chose to do it for political advantage. 
The really interesting thing is that since the introduction of the bill I have come across at least one example of a Maori landowner who previously from goodwill had been totally happy to allow general access to the beach that that person’s land adjoined but who is now closing it off because of anger and disgust at what the Government is doing with this bill. That is a shame on the House and it shows that the Government is setting back relationships between Maori and Pakeha and other New Zealanders considerably by the passage of the bill. 
It is not about going to the beach or access for a beach barbecue. The areas that those kinds of things are concerned with are very unlikely to be covered by court recognition of customary ownership because of the conditions of exclusive and uninterrupted use. It is not about Maori denying Pakeha access to the beach for a barbecue; it is about the fact that the Government does not want Maori to have control. This bill is about putting control back into the hands of local councils. The Government does not want Maori to have real power in relation to these issues particularly when it comes to commercial activity. It especially does not want Maori to have any kind of veto right because it knows that one of the strongest voices for environmental protection is tangata whenua. 
JOHN TAMIHERE (Labour—Tamaki Makaurau) 
: 
 I have listened with interest to a number of contributions in the Committee today. The difficulty that a number of members have in getting their minds round this legislation comes from their inability to understand the key cultural drivers behind Maori thinking so I want to express those in regard to their application to Part 1. 
At no time have Maori ever wanted ownership in the sense of freehold title fee simple title. When we talk about rangatiratanga kaiwhakahaeretanga and matters of kaitiakitanga and the like we do not talk about the type of fee simple freehold title system that has been implemented under this and a whole range of Governments. We do not talk of that. At no time have our people ever wanted the level of ownership expressed here. This legislation acknowledges and recognises that. It recognises the fact that we are stewards and guardians. It recognises the fact that those rights have been tuku to us from our ancestors. It recognises the fact that in no circumstances should we be able to alienate those and lose our customary heritage that has been handed to us. 
We were faced with the challenge of having to encapsulate our cultural requirements for the very first time in a piece of legislation. I say to the Committee that I commend the legislation to it because it is the first attempt at writing that manual—in actually evidencing Maori customary rights. It is the first attempt on this scale ever conducted by a Parliament in this country. We are doing the best we possibly can in that regard. 
The next point is about the way in which the law must work. Much ado has been made about the legislation being racist. It is not racist legislation on the basis of—solely—the law. One cannot rock up to Parliament as the Hon Ken Shirley or Gerry Brownlee have said and say that this legislation is racist because it deals only with Maori. It is legislation that deals with Maori because Maori solely have the rights. If we take away those rights and walk across them we destroy the whole constitution. We would not have law; we would not have order. There is a difference between law order and justice and Maori have the right of equality of opportunity before the law under article 3 of the Treaty of Waitangi. Maori have a right to good governance under article 1 of the treaty. Maori have a right to the retention of our cultural processes as endorsed and encompassed within this legislation under article 2 of the treaty. So for the very first time in this country we are starting to see the merging and the converging of our great Waitangi Tribunal jurisprudence on the one hand and our constitutional bedrock on the other based on the common law. We walk across those at our own peril. 
The Opposition does that. Opposition members confuse this very simple process and in trying to confuse it are confusing the rights that Maori have—which are different rights just as the Fens people in Great Britain and a whole range of other indigenous folk have different rights—which are bonded in our constitution of the common law. The fact that Maori have those rights in a larger sense of the word is just a fact of history. It is a fact of the settlement and it is a fact of the law. We either uphold the law in this country or we do not. The foreshore and the seabed—[ 
Interruption 
] It is a quote from hell I tell the member; the stench on him will be pungent in the next few months I can assure him—particularly from the allegations he has made. I move to more important matters on the foreshore and seabed. 
Gerry Brownlee 
: I raise a point of order Mr Chairperson. I am not sure whether you were listening to that tract of the former Minister’s speech but I believe that what he actually did was issue a threat across the Chamber which is quite unparliamentary and he should be required to either explain himself or withdraw and apologise. 
Darren Hughes 
: I did not take that inference from what the member for Tamaki Makaurau said at all. He talked about the future in the same way the Hon Tony Ryall talked in his address about the future political fortunes of people in this House. Mr Tamihere was doing the same. There is a lot of sensitivity on the other side of the Chamber. 
Gerry Brownlee 
: There should be recognition that when a member makes those sorts of comments there is clearly a sinister aspect behind them. I am sorry but there is. It does not matter how much the gender-confused Labour junior whip wants to titter away there; that remains a fact. 
The CHAIRPERSON (Hon Clem Simich) 
: The member should stick to the point of order. 
Gerry Brownlee 
: I think Mr Tamihere should be required to explain himself or to withdraw. He will not apologise—that would be too much to expect of him—but perhaps he could at least withdraw the remark. 
The CHAIRPERSON (Hon Clem Simich) 
: I thank the member for all the options he offered me. I heard what Mr Tamihere said. He moved on very quickly from it but if you object to it I ask Mr Tamihere to withdraw only. 
JOHN TAMIHERE 
: I withdraw. I bring the Committee’s attention back to new clause 2A “Object”. More particularly I indicate that the Government has actually affirmed the “protection of the association of whanau hapu and iwi with areas of the public foreshore and seabed.” which is to be cemented into the object of the bill. Secondly as a reinforcement of that new clause 3(b) provides for the “recognition and protection of ongoing customary rights to undertake or engage in activities uses or practices in areas of the public foreshore and seabed;”. 
GERRY BROWNLEE (Deputy Leader—National) 
: 
 The previous speaker made a great plea on behalf of Maori for their rights to be recognised. We teased a lot of those issues out with Mr McHugh who is recognised as an expert on those matters.  
Tariana Turia 
: Is he a Maori expert? 
GERRY BROWNLEE 
: There was an interjection there that was worth recording but I did not hear it. Mr McHugh claims to be an expert on those matters. He was brought before the Fisheries and Other Sea-related Legislation Committee to give us the benefit of his expertise and one of the most interesting things I think that we got out of him in the 3-odd hours that we listened to his interesting view on how those things are constructed within the law was the acceptance that anything to do with a customary law title is understood by us only in the context of the British common law.  
One of the things that fascinates me about all of this is that if Maori have those rights and claim them why do they need to have them affirmed in the law in this way if in fact there is not some intention to constrain those rights? That is the contradiction in the Labour Party’s argument. Maori member after Maori member stands up and says what a great thing they have done for their people. Well that is just not right.  
On the other side of it is my strong objection that as somebody who is from the fifth generation of his family in this country I continue to be told that I will never be the same in this country as someone who is Maori. So I ask myself what the purpose is of this particular bill. It does not satisfy Maori it does not satisfy the people I represent and it does not show much direction for the future. Mr Prebble is absolutely right when he says that in new clause 2A as soon as the qualification is expressed that is put in there in the words “including the protection of the association of whanau hapu and iwi with areas of the public foreshore and seabed.” it separates out— 
Russell Fairbrother 
: It is inclusive. 
GERRY BROWNLEE 
: It would be inclusive if that sentence stopped at the words “the common heritage of all New Zealanders”. That would be the end of it.  
A whole lot of questions are raised in this newly renamed bill and they will not get the sort of scrutiny or public attention that they deserve. For example if we get very practical some of them would be the questions that the Hon Dr Nick Smith asked. How can we create new reserves inside reserves and over areas where other arrangements are in place? What will be the relationship between the Minister of Fisheries the Minister of Conservation and the Minister of Maori Affairs under the new arrangements? The beneficial owner—if one likes the nominal owner—of the foreshore and seabed under this bill will be the Hon Chris Carter. What will happen when it comes to fisheries legislation or regulation? Will he negotiate with Parekura Horomia or will he negotiate with the Minister of Fisheries the Hon David Benson-Pope? 
Russell Fairbrother 
: What’s this got to do with it? 
GERRY BROWNLEE 
: That is exactly the sort of confusion that has been put in this bill—there is total confusion in the bill. I do not think anybody on the Government benches has worked out at this stage how difficult it will be to achieve the reserves for Maori. That will be very difficult. That is why we know that there is a clause in the first part that talks about the requirement when a reserve is not able to be put in place that the Government must then engage in looking for redress. That means getting out the chequebook. 
Hon DOVER SAMUELS (Minister of State) 
: 
 Once again I say this is certainly an interesting debate. It is interesting to hear the deputy leader of the National Party say very clearly to the people of this nation why the National Party does not support this bill. Now we are getting to the nitty-gritty. All the rain-dancing around the bill is peripheral to the real crux of the matter. Now we have a bit of horsepower in terms of the bill when National asks why it should support the bill and why it should have to recognise Maori customary right. Therein lies the issue. Why do we have to recognise Maori customary right? I want to repeat again— 
Gerry Brownlee 
: Mr Chairperson. I seek leave of the Committee to repeat my speech because quite clearly Dover Samuels was not listening to it. 
The CHAIRPERSON (Hon Clem Simich) 
: Leave has been sought for that course of action. Is there any objection? There is objection. 
Hon DOVER SAMUELS 
: I just want to repeat again what my experience and the experience of my people has been. The fact is that over years and years—over generations—the customary rights of my people have never been recognised in the law. It is as simple as that.  
It is absurd to suggest that Maori customary right does not need to recognised. To those people who say that when they get back into power they will repeal this legislation I say God help the nation if they ever do. I tell those people that legislation will not repeal what is inherently that of Maori the indigenous people of this nation. Maori are entitled to have their customary rights recognised and this legislation spells that out very clearly. Let me say very clearly to the Opposition members that I have had no access and neither have the generations of my forebears to actually even go to the court to have our customary rights recognised. This bill provides access for our people not only to obtain a customary right order but to go to the High Court and get recognition of a territorial customary right—in fact an aboriginal title. That is unprecedented in the history of this nation.  
I say again to the people of this country both Maori and Pakeha that my mokopuna and their mokopuna will stand side by side on the foreshore of this nation—our mokupuna both Maori and Pakeha—and look towards the future. Under this legislation future generations of our people will stand side by side proud to be New Zealanders. They will recognise their different origins but will be proud to stand together on the beach. I say “Merry Christmas” to the people of this nation; it is not too far away. Maori and Pakeha will be able to go down to the beach and nothing will be changed. They will be able to have their barbecues. Even Gerry Brownlee will be able to go down there with his bikini and try to get a suntan. Even the deputy leader of the National Party will be able to put on his swimming togs go down to the beach put a bit of slip-slop on—a bit of oil—and try to turn the same colour as my colleague Parekura Horomia. Nothing will change but God help them if they have any observers.  
I am here to tell the truth not to tell a bunch of lies. New Zealanders will be able to go down to the beach and do the things that they have always done. 
Hon Dr Nick Smith 
: Not true. 
Hon DOVER SAMUELS 
: Who is the apparition who made a comment? I cannot understand who he is. Maori will be able to go down to the beach and I repeat pick their pipis dive for their tuatuas go to their favourite rock go snapper fishing and do all the things that they have been doing in the past. The members who have got up and said that people will not be able to do so are a bunch of liars. They have not told the truth outside this Parliament because this bill does not change anything except by recognising the rights of our people. I come back and say again that I have heard claptrap from the parties on the Opposition side of the Chamber. I can understand the Green members talking like that. They are hallucinating; they cannot help it. They smoke too much psychedelic puha so I can understand that. 
Metiria Turei 
: I raise a point of order Mr Chairperson. I take personal offence to the description of the Green members as hallucinating. I ask the member to withdraw and apologise. 
The CHAIRPERSON (H V Ross Robertson) 
: I heard that ruling this morning. The member will withdraw and apologise. 
Hon DOVER SAMUELS 
: I withdraw and apologise. I am just trying to make the point that groups of people out there spin untruths to our people. I appreciate what the Rt Hon Winston Peters said. That is politics but sometimes one actually has to tell the truth. I go out there and tell the truth. 
SHANE ARDERN (National—Taranaki-King Country) 
: 
 I have been seeking this call since about 10 past 9 so I intend to use my 5 minutes very wisely. At the outset when MMP was introduced I could see only one good thing about it which was that for the first time it brought to this Parliament about the right number of Maori in terms of the population represented. I think that is very good and it should be upheld. That is the only good thing I can see about MMP and here are the bad things. 
 Today the Government aided and abetted by New Zealand First is passing legislation that has tried to please all the people. There is an old cliché that goes: “You can please some of the people some of the time but you can’t please all the people all the time.” This socialist Government has done that helped by New Zealand First—which I hasten to add brought more Maori members into Parliament than the Labour Party did. Labour has had a proud history of association with the Maori people through the Ratana Church. That proud record was broken by the New Zealand First members who swept it to one side.  
Today New Zealand First is aiding and abetting a socialist Government to pass legislation that is divisive. This legislation will bring about only divisive outcomes. There is no other way of looking at it. The Maori members over there on the Government benches have made some fine contributions to the debate but they are muddled. If any more of them jump out of the waka it will tip over. That is what will happen here. A Cabinet Minister and one well-known Maori family have already jumped out of the waka. If any more people jump out the waka will tip over. Even New Zealand First will not be able to help them. We have here today something that is very divisive.  
This legislation has been described as racist. That is a very strong word—it is an awful word. Racism is awful. It is up there with hate and I hate it. I hate racism. I have seen it I have experienced it and it is awful. It is something we should never ever tolerate—not for a moment. But racism is what is being inflicted by those who would normally oppose it—that is what is happening. I say to the Minister in the chair Damien O’Connor that he should get the Attorney-General to explain to the Maori members of the Labour caucus why she did not let the issue of the foreshore and seabed go through the due court process. Why did the Attorney-General step in and say to Maori that although we have laws in this land and allow things to go through the court process that is not the case for Maori. Because of Margaret Wilson’s loony-left activists in the Maori Land Court—her hand-chosen loony-left activists—she would not let Maori take the issue through the court process. Why not? That is what I ask Government members. I ask Mr Fairbrother the chairperson of the Fisheries and Other Sea-related Legislation Committee a lawyer who understands the detail of that to explain why the issue was not allowed to go through the court process.  
I can understand the reasons that would have been given and the debates and the arguments that would have gone on in the caucus but I will not and cannot understand how the Labour Party with its proud history of association with the Ratana Church and with the support from Maori that it has always enjoyed could do that to its own voters. That is beyond comprehension and no Minister has stood in this Chamber so far and told us why the Government would not let that process take place—other than of course the fact that the court is stacked with Labour’s own loony-left activists. That is the only explanation we can see. I say to the members who have stood up and said this legislation will be good for Maori that it will not be. There is a well-documented history that Maori have not been well served by Labour. That is the reality. More has been done for Maori by National and over a very long period of time than by Labour. All that this legislation really is about is a back-door amendment to the Resource Management Act. This whole problem came about as Mr Fairbrother well knows when that Act overlooked what had been prescribed in law under previous Acts like the harbour boards Act and other such Acts. That is all it is—and what does it do? This legislation brings about a opportunity for Maori and non-Maori to stand apart in the eyes of the law. That is what it does and it does not matter how much the Hon Dover Samuels and others stand up and talk about Maori culture. 
Rt Hon WINSTON PETERS (Leader—NZ First) 
: 
 I remind Shane Ardern that there is an old saying that goes like this: “You can fool some of the people most of the time and you can fool most of the people some of the time but you can’t fool all the people all the time.” He raised the issue of the Resource Management Act. Who passed the Resource Management Act? It was his predecessor when he was an electorate chairman. 
Hon Ken Shirley 
: And when you were in Cabinet. 
Rt Hon WINSTON PETERS 
: No no. It is like striking a nerve. The National Party ought to be reminded that noise and bombast is no substitute for debate and analysis. Gerry Brownlee wanted to know why there were two bills. He was on the select committee yet he got up and asked everyone else why there were two bills. There have been since day one but he does not know. So it gets worse. The real issue with regard to this debate today and yesterday is this: where on earth is the great communicator? This should have been the day he had a field day. This is his issue. This is his time. This is his chance. So where is the great communicator? Where is the great debater? 
The CHAIRPERSON (H V Ross Robertson) 
: The member will speak to the bill. 
Gerry Brownlee 
: I raise a point of order Mr Chairperson.  
The CHAIRPERSON (H V Ross Robertson) 
: The matter has been dealt with. 
Gerry Brownlee 
: I just want to make it clear that the great communicator the Prime Minister Helen Clark is swanning around the country looking for another photo opportunity. 
The CHAIRPERSON (H V Ross Robertson) 
: The member has been here a long time. I suggest that he look at Speaker’s ruling 23/7. 
Rt Hon WINSTON PETERS 
: I have to admit that if I were out there in radioland or if I were in the gallery I would be saying to myself: “Surely this has to be the day when the great communicator sheets home his point.” But of course all he does is copy New Zealand First. That is why we do not understand why he is not backing us on this bill. 
The CHAIRPERSON (H V Ross Robertson) 
: The member will speak to the bill. 
Rt Hon WINSTON PETERS 
: I am getting to it. 
Dail Jones 
: I raise a point of order Mr Chairperson. This debate is wide ranging. The purpose clause includes ownership of the foreshore and the seabed and everything that is in the bill. So the member is perfectly entitled to make the comments he is making. They are consistent with the bill. 
The CHAIRPERSON (H V Ross Robertson) 
: The member said he is getting to the bill. 
Rt Hon WINSTON PETERS 
: I am getting to it but I should make this point. On Saturday he did not know whether National would be part of the committee that will consider the constitution but he followed our lead and now he is out. So will Rodney Hide be shortly. They do not know what they are doing. They just go around copying another party that does know what it is doing. I ask the National Party this: which port authority is complaining now? 
Hon Dr Nick Smith 
: Port Nelson. 
Rt Hon WINSTON PETERS 
: Oh I see.  
Hon Ken Shirley 
: Ports of Nelson. 
Rt Hon WINSTON PETERS 
: Oh ports of Nelson are complaining. About what? In Whangarei Auckland the Bay of Plenty Napier Gisborne New Plymouth and everywhere they are happy because we said that whatever they had they will go on having. There will be no imposition or attack on any rights they might have. But of course Nick Smith has probably gone down there and misinformed the local ports of Nelson. What port authority is complaining? Nick Smith’s port authority is complaining.  
I heard Nandor Tanczos talking about confiscation and I want to ask him this: why would it be right as his party advocates to have every foreigner come to this country yet not try to preserve what is here for ourselves in the form of this law? He said he knew of an example of a Maori closing off access to the beach. He was asked which one and he could not say. He did not know. He does not understand that when we talk about riparian rights we are not talking about the foreshore and seabed. He should go away and see his colleague Metiria Turei and get her to get somebody who knows something about the law to tell him because he is talking absolute humbug.  
There is just one last thing I want to say and it is in reply to Richard Prebble. Why was the Maori wardens case important when the National Party wanted to give them rights of arrest?  
Gerry Brownlee 
: Get back on the wicket! 
Rt Hon WINSTON PETERS 
: It is to do with fishing law. That is why it is relevant. That is why I get sick and tired of that party over there that has lost every semblance of principle and consistency. They stand for nothing anymore. They cannot even hold an argument together for one day let alone one year or one decade. They are just riddled with contradiction and dispute amongst themselves scrapping as they do to try to gain power. 
Hon KEN SHIRLEY (Whip—ACT) 
: 
 I raise a point of order Mr Chairperson. I did not want to interrupt the member who has just resumed his seat. He said there had always been two bills and I raise this as a matter of procedure not as a matter of debate. We have before us Supplementary Order Paper 303 which was tabled yesterday and is titled “Foreshore and Seabed Bill”. It is a proposal only—a motion—to divide the bill into two bills. I seek clarification on whether there have always been two bills or whether there has been one bill and there is now a proposal to divide it. I would hate the Committee to be misled by the claim made by Winston Peters that there have always been two bills. I seek clarification that my understanding is correct: that there is one bill and a proposal has been made to divide it. 
The CHAIRPERSON (H V Ross Robertson) 
: The member has made his point. 
DAIL JONES (Junior Whip—NZ First) 
: 
 I think that even someone like Mike Ward a member of this House would know that it was always intended to have two Acts of Parliament— 
Metiria Turei 
: Point of order— 
The CHAIRPERSON (H V Ross Robertson) 
: There is a point of order already on the floor.  
DAIL JONES 
: I am responding to a point but I apologise to the member: I did not mean what I said to be so harsh. I meant that any first-term member as opposed to Mr Shirley who has been in Parliament for about six or seven terms would know that when a bill contains amendments to the Resource Management Act—as this one contains in Part 5—a procedural motion would always be moved later on in the debate to have two bills. In this case one would be a Foreshore and Seabed Bill and the other would be a bill to amend the Resource Management Act. That has always been the case. Mr Shirley has also been a member of the select committee and if he does not know that then we can understand what a hopeless case he and the National Party have been presenting today. 
The CHAIRPERSON (H V Ross Robertson) 
: That is not a debating issue. The member has made his point well. 
GERRY BROWNLEE (Deputy Leader—National) 
: 
 I just want to say that a comment was directed at me which was designed to cast a bit of an aspersion. It was a derogatory comment. Of course technically Mr Jones is always right. I asked questions about “a bill” in front of the select committee and quite reasonably so. The thing is we should move on. We all know that the New Zealand First Party cannot make any points without getting personal. We know that Mr Peters is going through some sort of a reminiscence of past grievances this morning demonstrating exactly the problem with Maori in this country and I just want to say that I forgive him. 
The CHAIRPERSON (H V Ross Robertson) 
: We have all had our fun. It is time we moved on. 
MAHARA OKEROA (Labour—Te Tai Tonga) 
: 
 This morning I was appalled at notions of racism. I am now absolutely amazed. So I have moved from being appalled to being amazed. 
Mark Peck 
: Not a bad start. 
MAHARA OKEROA 
: No not bad. I am amazed at a comment made by the shadow Minister of Maori Affairs who asked why Maori would want to include their customary rights in legislation. 
Gerry Brownlee 
: I didn’t say that. 
MAHARA OKEROA 
: Yes the member did—why would Maori want to go through that process to enshrine it in legislation? That demonstrates to me quite clearly that as a shadow Minister of Maori Affairs the member has very little knowledge of the historical reality. If nothing else one of the driving motivations for Maori members to be here is to make a difference in terms of legislation that affects the constituency—in spite of what Shane Ardern says about divisiveness. He should know about divisiveness. He comes out of Taranaki. That demonstrates to me as well that he does not know anything about the history of Taranaki. Who drove the divisiveness in Taranaki? 
Hon Ken Shirley 
: Tainui. 
MAHARA OKEROA 
: No not at all. What I am saying in the context of this discussion [ 
Interruption 
]—and we do not want any interruptions from that member from Ngati Raukawa because we know what happened to those people as well. That member demonstrates very clearly that he does not understand the notion of divisiveness and the forces of early legislation that caused that divisiveness in the community of Taranaki.  
I will give here a bouquet which is overdue to New Zealand First. Mr Ardern said that we had made a lot of progress with legislation for Maori. The biggest piece of legislation I will mention in that regard is the legislation on the reserve lands issue. Who was in coalition? It was not the National Party but in fact New Zealand First where the initiative came from. So I would not be about claiming kudos for one party; I am about to give a bouquet to the most effective leader of the Opposition.  
When we get asked why we are here I tire of listening to speeches that continue to serve the marginalisation of our people. If these things are not enshrined in legislation and apparent there then iwi hapu and Maori in general will continue to be marginalised. That is a lesson of history. It is a lesson that we have learnt at our own cost.  
In conclusion it is my view that this bill supported by New Zealand First will put an end to any further marginalisation because it also protects—and it takes vision and courage. I have not heard yet what the shadow Minister of Maori Affairs may promote as his party’s policy for a solution rather than it creating a problem. So it is my absolute honour to stand here today and give my— 
Gerry Brownlee 
: I raise a point of order Mr Chairperson. Yesterday the Prime Minister became very upset because a member suggested she had pleaded the Nuremburg defence when it came to the incident of her speeding from Waimate to Christchurch and to the subsequent charging of five policemen and one civilian while she it would seem is escaping any question. I have just heard Mr Tamihere suggest in response to Mr Mahara Okeroa’s suggestion that he had not heard what the shadow Minister of Maori Affairs might offer as his solution that that would be “the final solution”. That is even more offensive than suggesting that someone is pleading a Nuremburg defence. It think it is a waste of time asking that man to withdraw and apologise. It is evident that he does not have much sense of what is right and wrong. But I do ask Mr Chairperson that you keep your ears open and make sure that that sort of thing does not occur again. 
The CHAIRPERSON (H V Ross Robertson) 
: The member has made his point. One unparliamentary remark does not justify another. I call the member to order. 
MAHARA OKEROA 
: I was attempting to bring a conclusion to what I had to say. We need to avoid any suggestion of the interpretation by the shadow Minister of Maori Affairs because in fact I doubt whether the member on my right was being negative about what he was saying. We need to bring this issue to a positive end. We need to be a reflection of the community as it is today not as it was in the 19th century. So I applaud this bill. 
Hon Dr NICK SMITH (National—Nelson) 
: 
 Let us remind ourselves of the sort of parliamentary skulduggery that is going on this morning with Parliament under urgency and passing major legislation that will impact hugely on this nation and with that member who has spoken somehow believing that that will resolve this issue. I want to highlight the major provision included in this part—that is the creation of a new legal instrument: a foreshore and seabed reserve. On the front page of this morning’s  
New Zealand Herald 
 the Maori caucus is quoted as saying that they expect 10 percent of New Zealand will be set aside as foreshore and seabed reserves. I would be interested to know from the Minister in the chair the Hon Dr Michael Cullen whether he thinks that is a fair estimate. I ask again of the Minister in the chair: is it a fair estimate as recorded on the front page of the  
New Zealand Herald  
that 10 percent of our coast will be set aside as foreshore and seabed reserves? That is attributed to the Maori caucus. Is that correct? 
Hon Dr Michael Cullen 
: They did not say that. 
Hon Dr NICK SMITH 
: Is the expectation the report reasonable? 
Hon Dr Michael Cullen 
: They didn’t say that. 
Hon Dr NICK SMITH 
: Well do the people of New Zealand have any idea as to the proportion of our coast—our precious beaches and our precious coastline—that will be set up in the new legal instrument provided in these amendments? Does the Minister have any idea at all as to what area of New Zealand will be set aside in these new foreshore and seabed reserves? The Minister in the chair Dr Cullen shakes his head and says he has no idea. So am I to draw the conclusion that we are being asked to pass legislation that will set aside according to the Maori caucus—that is the promise he has obviously made in secret to the Maori members—10 percent of New Zealand’s coastline which is 2000 kilometres or 4 million hectares to be vested in new foreshore and seabed reserves? I heard the last Maori member who spoke say that this will not change anything. Members can bet it changes things! It changes and moves the control of 4 million hectares—2000 kilometres—from locally elected councils to a new special committee appointed exclusively by Maori. We are to expect— 
Hon Dr Michael Cullen 
: It doesn’t say that either. 
Hon Dr NICK SMITH 
: Well what does it say? 
Hon Dr Michael Cullen 
: The court directs people to go and discuss the composition of the board. Read the bill. 
Hon Dr NICK SMITH 
: Registers it with the court! Parliament does not get a say. It is to be registered by the Minister. This is a Trojan Horse for transferring the say— 
Hon Dr Michael Cullen 
: No wrong again. 
Hon Dr NICK SMITH 
: Would the Minister like to take a call? 
The CHAIRPERSON (H V Ross Robertson) 
: I say to the Minister that it is generally accepted that when Ministers are in the chair they do not use the live microphone. 
Hon Dr NICK SMITH 
: The Minister cannot expect to table legislation on this very day introduce a whole new concept of foreshore and seabed reserves and say that the Government is not allowed to answer any questions and that it cannot tell us how much the area is. If we take the equivalent marine reserves were first introduced in 1974. They make up only 0.3 percent not 10 percent as the Maori caucus says the figure will be. Those marine reserves have been debated over years and years and years. They were first introduced in 1974 and they have been debated extensively yet the Minister in the chair thinks it is kosher to introduce a new concept of foreshore and seabed reserves today and pass it all in 1 parliamentary day. Dover Samuels said that it would not make any difference to families wanting to go down to the beach and have a barbecue. Well yes it does and I will tell members why. In relation to the 10 percent that his Maori caucus claims will now be foreshore and seabed reserves it will be for the management committee to decide who will be able to have a barbecue and where.  
Hon Dr Michael Cullen 
: No that’s nonsense. 
Hon Dr NICK SMITH 
: It is true. Can the Minister in the chair explain why it is that the management committee of the foreshore and seabed reserves will be guardians. The guardians will be able to have those controls. 
Stephen Franks 
: If they can’t why are they guardians? 
Hon Dr NICK SMITH 
: Exactly. As my colleague Stephen Franks says if the guardians who are going to manage 10 percent of our foreshore and seabed cannot decide whether a barbecue is allowed or whether there will be a gate or boat access what the heck are the guardians? Is it just a big fraud on Maoridom? I suggest that it is not that it is real. It is a Trojan Horse for taking control away from councils and passing it over to these guardians. 
LARRY BALDOCK (United Future) 
: 
 I begin my comments by thanking the honourable member Dail Jones who in his speech some time ago gave us an explanation of why the new clause 2A had appeared in the Supplementary Order Paper 302 proposed by the Deputy Prime Minister. He took ownership of the fact that it was New Zealand First members who went to the officials and discussed broadening the definition of Crown ownership to be what we now read there which is a pretty good description of what was conveyed by the term “public domain”. I thank the member for that and I thank New Zealand First and the Rt Hon Winston Peters for doing so. 
But it does the beg the question of the Rt Hon Winston Peters as to who is copying whom which he raised earlier. It seems very clear that the concept of public domain has been copied by New Zealand First. While United Future is happy that that is occurring because it is a useful concept we believe that there should be some recognition of it. It is not only the concept that is being copied but also the behaviour. I do not know whether anyone has noticed in the House but New Zealand First is becoming very reasonable very constructive and very cooperative with the Government. I think Winston Peters must be becoming very worried because he is morphing into United Future. Progressively week by week and month by month New Zealand First is morphing into United Future and that must be of concern to Winston Peters. He has sat here for 2 years and watched the way that we have operated constructively with the Government and I am sure that on many occasions he has thought: “Gee I wish we had done that in 1996 when we were in a relationship with the National Party. We would not have got into so much trouble.” But many people are still holding their breath as to how long that attitude will last. Time will tell whether New Zealand First can truly morph into a party that is able to work constructively on behalf of all New Zealanders. 
I want to make some comments about clause 3 the purpose clause because it is of course a crucial part of the bill. It gives effect to the object stated in clause 2A which has been discussed quite a bit already then goes on to establish the purpose of this legislation. It is important that we debate this matter in the Committee today and possibly into tomorrow but I believe that it is even more important that after the debate has occurred here it goes out into the community. I want to put forward a suggestion to the Minister and the Government this morning which I hope they will take up and that is that they take steps to ensure that communication is carried out from this Chamber. Not everybody tunes into the radio and listens to the debate—for obvious reasons if anybody listens to it for any length of time! But it is important that this bill in its new form with this huge Supplementary Order Paper be communicated through hui throughout the country and to Pakeha New Zealanders so that everyone is brought up to speed. It is not enough to rely upon what is reported in the newspapers and in 60-second or 30-second sound bites on television and radio to convey information about this important legislation which is now being improved in many ways by the Minister’s proposed amendments. 
So I offer that suggestion to the Government. It is important that it find some independent people who are not affiliated with any particular political party and who can go around the country and give a good explanation of what this legislation now means. A number of Government members who have spoken in the debate have said that there was a long consultation process and have asked why everyone is complaining about the House taking urgency this week. It seems that they have completely missed the point. The fact that they went around the country talking to people does not necessarily mean that they were heard. It does not necessarily mean that they conveyed anything through all the hui that they held. The fact that 4000 submitters came to the select committee is fairly clear evidence that those members were not heard as well as the Government thought they were. 
It somewhat reminds me of the trouble that parents sometimes get into with their teenagers when they tell them everything then wonder why the teenagers go off and do the complete opposite. They scratch their heads and say: “Well we told them. Weren’t they listening?”. No they were not listening; often teenagers do not listen to parents because parents are not listening to teenagers. The Government needs to understand that it was not enough to go around the country and simply tell everybody what its policy was going to be and how it was going to solve this problem. It also needed to be listening. That is why we attempted to have the select committee produce an interim report; we wanted more opportunity for some dialogue which may have resulted—we hope it still will if it is initiated by the Government—in the bringing together of people in New Zealand over this legislation. 
NANAIA MAHUTA (Labour—Tainui) 
: 
 I want to speak on Part 1 and to highlight a couple of clauses that I believe provide some clarification in terms of the intention of Supplementary Order Paper 302. 
There has been a lot of talk today about the objects clause clause 2A. Implicit in that clause is the fiduciary obligation of the Crown to look after the foreshore and seabed for all New Zealanders after it having first recognised that it has a role to protect the association of whanau hapu and iwi with the public foreshore and seabed. That implicit obligation will in time help to develop the thinking and the context of how the common law has been provided for in this bill. It is a good clause and a good addition in the Government’s Supplementary Order Paper. 
The member before me made a couple of comments on the purposes clause. It sets out quite clearly the intention of the bill. Rightly or wrongly—whatever people may think about the content of the rest of the bill—the purposes clause gives a very good description of what is provided for in the legislation. I will highlight clause 3(c) which enables “applications to be made to the High Court to investigate the full extent of the rights that may have been held at common law and if those rights are not able to be fully expressed as a result of this Act enabling a successful applicant group—(i) to participate in the administration of a foreshore and seabed reserve; or (ii) to enter into formal discussions on redress;”. I think that sets out very clearly that there are provisions within the bill that enable the full extent to be explored. 
There were some issues raised within the debate about whether the common law rights applied to all New Zealanders. My friends in the Opposition will know that in the interpretation clause the devil is in the detail. The definition of “applicant group” could apply to anybody. Anyone who can pass the threshold test that is provided for later on in the bill has the opportunity to go to the High Court to find out whether he or she has a territorial customary right. So it is not race-specific as members in the Opposition would have people believe; the way in which “applicant group” has been defined in the interpretation clause opens it up. 
There are other points about Part 1 that I would like to comment on—notably what is not there and that is ancestral connection. All members will recognise that ancestral connection has been removed from Part 1 because a lot of submissions as I understand it had asked what it achieved. In effect because of the way in which the ancestral connection has been provided for throughout the rest of the bill it is a given that Maori have a very strong association with the takutai moana. Implicitly within the other parts of the bill the ancestral connection becomes very relevant and is a given. That is a credit to some progressive thinking on both sides of the House about the nature of the relationship of Maori to the takutai moana. 
There were also comments and I think they were quite wide ranging about whether a marine reserve would be affected—whether a mataitai would be prohibited by this bill. Well if the test is passed in the High Court and a takutai moana reserve or foreshore and seabed reserve is created then it is up to the management committee to determine that. Through its management plan it may determine whether it wants a mataitai within a marine reserve—it is up to it. Under the laws of this land which apply to all citizens of New Zealand it will follow the due process of law to lodge a marine reserve application. It is all up to it. I think that shows the depth of thinking that has gone into the possibilities that can be created within this bill that also uphold some of the interests that Maori have promoted in this area. 
In times to come there will be some extensive thinking about what another part of this bill means. I am happy to see that the recognition of kaitiakitanga is the same as that referred to in the Resource Management Act. Why? Because it is consistent it is something that people already have an understanding of and it is not departing from some of the principles of resource management that we are all concerned about. 
There has been a mishmash of understanding about what is not protected. I want to say in my contribution that the existing private property rights of all New Zealanders will be protected. The definition of “specified freehold interest” applies to all New Zealanders including Maori. 
STEPHEN FRANKS (ACT) 
: 
 I raise a point of order Mr Chairperson. I do not know what rule is governing the debate on this part. I am aware that normally there are tight limits but I have now been here for nearly an hour and a half and have seen the call go to National members and to Winston Peters. The National members have all had a round and Mr Peters has had two speeches while I have been here. I do not raise this point of order only for myself; there are two members of Mr Peters’ party who have been calling throughout the time I have been here and who have not had a go. As I understand it the Standing Orders suggest that the call should be available at least once to each member for a debate of this nature. 
Rt Hon WINSTON PETERS (Leader—NZ First) 
: 
 The format of the debate is that the contrary side of the argument is given first and the supporting side second or vice versa. It goes from side to side. In respect of the defence of my colleagues’ rights being put by another party’s member let me say that my colleagues will get a chance to speak in this debate and they will do so shortly. It is not for Mr Franks to decide what their rights are. We have organised that because I cannot be here all day I will speak at the appropriate time. That is a fact. The second part of his argument was nebulous and nonsense. 
The CHAIRPERSON (H V Ross Robertson) 
: I thank all the members for their contributions. I say to Mr Franks that I look at proportionality within the House. He is within my radar at the present stage. 
Dr LYNDA SCOTT (National—Kaikoura) 
: 
 I have also been waiting for a long time to take a call on this bill and I wish to do so because I am the MP for Kaikoura which includes all of Marlborough and North Canterbury and this whole debate began with the decision about the foreshore in the Marlborough Sounds. The drawing of that line in the sand was what led us to the discussions we have had in the select committee and to our debating today in the Chamber a Supplementary Order Paper that nobody had a chance to see and digest until very very recently. 
I listened to the speeches that have gone before me. John Tamihere said that Maori have not wanted freehold title. That is certainly not my understanding of what was happening with the Marlborough Sounds seabed. Maori definitely wanted freehold title. I had people come into my office and say that when there was no land and no fish no one cared but now they did care they did want that land and they did want title—it was not just about guardianship. People have now moved to the concept of guardianship for about 10 percent of the foreshore and seabed but there was definitely an intention to have freehold title. When the  
Attorney-General  
v 
 Ngati Apa 
 decision provided that there was a possibility that private ownership of the foreshore and seabed could be granted—that it could go to the Maori Land Court—action had to be taken. That had never been the intention in the past in our history. Until the Resource Management Act came in most New Zealanders had supposed that the foreshore and seabed were in Crown ownership. It had not been an issue until that time. 
I heard Mahara Okeroa talking about people being denied access to a certain area of Maori land in Nelson because he said people were not treating it correctly. When my own parents-in-law were down in the Arahura Valley on the West Coast where pounamu is gathered they were denied access one time when they were just wanting to take a stroll along the river. That is what has been beginning to happen around New Zealand. People have been denied access. I was in the Chatham Islands and went out for a run on the beach and was told I was on private property. I and all other New Zealanders have grown up with the concept of the Queen’s Chain the concept that we can walk down a beach without restriction so it was a huge surprise to me to be told in the Chatham Islands that someone else owned the foreshore and seabed. 
When one travels overseas one realises that a lot of the foreshore and seabed is privately owned. It brings us back to what it means to be a New Zealander. What it means to be a New Zealander for all the people I talk to in my electorate is to have that access and not be denied it. A huge amount of consternation was generated by the decision to allow Ngati Apa to go to the Maori Land Court because it definitely would have led to a possibility of private individual ownership of and title to that land—or even collective title to that land but one that would deny others access. 
The select committee process did not manage to return a new bill to this House and we now have Supplementary Order Paper 302 which creates in Part 1 a new legal scheme. A new system is being created. The amendment states that legal ownership is in the Crown—preserved in perpetuity for the people of New Zealand—but it is very uncertain about what will happen with the guardianship that can be given if Maori can show continuous rights. That is uncertain. It will be a reserve but will Maori be able to deny access? I ask members to consider the Department of Conservation. Does it allow open access? No it often shuts up areas of land. We will not know. 
METIRIA TUREI (Green) 
: 
 I was quite distressed to hear Nanaia Mahuta’s speech in which she lauded clause 3 “Purposes” as providing Maori with access to the courts to get territorial customary rights orders. I wonder whether she is aware—we will talk about this later in the debate on Part 2—that New Zealand First has negotiated a clause that means that contiguous land ownership is a condition of being able to get a territorial customary rights order. That is in effect the reinstatement of the 90 Mile Beach decision which legal academics have known and continually said since that decision was made was wrongly decided. The Ngati Apa decision overturned it because it was wrongly decided. Clause 3 will mean that those South Island iwi who took the Ngati Apa case to court will not qualify for a territorial customary rights order. That is the effect of clause 3. It is not about providing access to the court; it is about denying specifically and directly those iwi who might well be able to establish some form of exclusive use and possession the right to attend court. 
Mr Tamihere talked earlier about how the challenge for the Maori Labour MPs was to find ways to incorporate Maori rights into the bill. Their challenge was not to find ways to integrate Maori into this bill. Their challenge was not to find ways to assimilate Maori rights into this bill. Their challenge was to protect Maori customary rights to protect the common law rights of iwi whanau and hapu in this country and to protect tipuna title. By supporting this bill the Maori Labour MPs and Maori New Zealand First MPs have failed in that challenge. They have failed to protect Maori rights. They are allowing the continual confiscation and extinguishment of those rights and the further taking of land. 
Those MPs try to justify this bill by saying it will give Maori more rights than they would get in the courts. That is a completely wrong justification. It is not true. They try to say that this bill incorporates the common law tests from other jurisdictions such as Canada and Australia and that Maori would be subject to those tests in the courts. But in fact Maori would be subject to tests in the courts that include our own treaty jurisprudence which has been in development now for 30 40 or more years. That treaty jurisprudence acknowledges that the common law rights of Maori are in a form set out in the Treaty of Waitangi—that that document has force and is relevant to these decisions. Of course the Canadian tests do not have that issue and the Australian tests do not take it into account. But the New Zealand courts would enabling Maori to have better access to justice and enabling the formation in our own country of our own jurisprudence about what common law rights might actually be. By putting forward this bill this Government is preventing the courts from exploring those issues and preventing Maori from being able to explore the full scope and spectrum of what their common law rights might be in accordance with international jurisprudence and our own treaty jurisprudence here. 
One of the real failures of this bill and of the whole process—including the select committee process—was the fact that so many alternative options were not explored. The most obvious of those would be to allow Maori to proceed to the courts to have the full scope of their common law rights determined. Yes there would be some uncertainty for the Government but it would leave an opportunity for that exploration and development of the law to continue. There were no problems last summer when this issue had not been decided. The esoteric kinds of academic questions that go on in the courts do not have a huge impact at all on New Zealanders’ ability to enjoy the beach in the summertime. There is no urgency. There is no need to rush this decision. We could allow the courts to proceed and develop the law in accordance with New Zealand jurisprudence. 
It is urgent only for Labour and New Zealand First. They want this bill dealt with before the election because they see votes in it. They do not see the injustice of it. They do not see and understand the extinguishment and confiscation of Maori rights. They do not see that they are undertaking a return to the 19th century. 
NANAIA MAHUTA (Labour—Tainui) 
: 
 In my previous contribution I outlined that in new clause 2A there is an implicit fiduciary obligation on the Crown. I want to pick up on a point in clause 3 “Purposes” relating to subclause (a): “vesting the full legal and beneficial ownership of the public foreshore and seabed in the Crown;”. As the debate has progressed over time I see that people have misconstrued the concerns of Maori as an issue of sovereignty. Although at the extreme end of the debate there is a strong view about the sovereignty interests of Maori it is irreconcilable to some extent with the treaty arguments that are then put up. If we move towards the middle ground in order for the Crown to exercise its fiduciary obligation it has to be quite clear on what basis it does that. New clause 2A provides that level of clarity and does that.  
For the extreme ends of this debate I think that new clause 2A will make very clear that there is an ongoing fiduciary obligation and will bring people more towards the middle of where this argument sits. The Crown will have a full expression of its ability to be able to assert on the one hand the common law interests of Maori within the context of this bill and outside of this bill another pathway that is more fitting and aligned to the Treaty of Waitangi settlements process. That understanding has been missed quite a bit in the debate probably because people like to play around on the edges of it.  
On the issues that were raised by the previous speaker with regard to the common law I think those are more apt for the Part 2 debate. That is the context for them. In saying that I point out in response that Dr Paul McHugh said that for the development of common law within New Zealand we cannot get away from the issues of tikanga and the Treaty of Waitangi. I think there is a debate to be had that can probably be extended in Part 2. My contribution is very brief in this respect but I highlight that there has been a lot of game-playing on the edges of this debate around the question of sovereignty.  
Coming from a tribe that signed the Declaration of Independence only—from a group of people who can say that they did not sign the treaty but have been treated as though they were signatories and have suffered the most—I will say that it is our responsibility as parliamentarians in this country to try to bring people together notwithstanding the historical facts that have occurred over time. It requires a lot of effort and commitment to act in good faith as responsible parliamentarians and leaders of this country. Although I accept that there is a lot of emotion around this issue I also accept that if we are to have a nation that works together and commits to that we basically have to look at the realities of what we can achieve here today and move from that point. I look forward to more cooperation within the Government on this question. I think it is important that we really put to rest some ridiculous expectations that are out there. 
 The member from Marlborough who will not be with us next year made the point that there are interests amongst Maori who want to go for freehold title. The reality is that under the Maori Land Court and Te Ture Whenua Maori Act that is all they could have been awarded had they gone along that track. So when that presented itself I guess it presented the real question of us all in the domain of Tangaroa or the foreshore and seabed which is what it was that we were really trying to achieve here. Yes interests exist—customary property rights I believe—but was there a general view amongst New Zealanders that anyone owned the foreshore and seabed? I do not think that had been contemplated very clearly within any statute. In so far as it affects Maori there was general agreement throughout the submission process that Maori accepted that access to the foreshore and seabed the inalienability of title and the rights of navigation are public rights for all New Zealanders.  
I think balancing up where the meeting-point was those were the three clear points we had in working out how to find a way through this. Clearly the laws that could affirm title presented some difficulties. We may not be there yet. However those difficulties have forced us into a situation where we have had to reconsider just what are the customary property interests and rights of Maori to the foreshore and seabed. That is what this bill is moving towards. 
STEPHEN FRANKS (ACT) 
: 
 I wish to point out that Nanaia Mahuta has in fact voted against this. The comments made earlier about New Zealand First speakers still apply. I would like to know just what their reasons are. The Rt Hon Winston Peters has spoken many times and has given us no substantive reasons. He goes into history but gives us no substantive reasons for his support of this bill. We have had the benefit however of Government contributions—unusually in a debate of this kind.  
In particular the contribution from John Tamihere was interesting. He assured us that at no time have Maori ever wanted ownership of the seabed and foreshore. What were the 80 or so cases filed—which this bill cancels without replacement—about? I think John Tamihere has become accustomed to dealing with his colleagues those people who exhibit the bigotry of false expectations and allow Maori claimants to spout pure racism—the notion that Maori are somehow different from everyone else in the world in the sense that if they are offered an opportunity they will not take it.  
The opportunity this bill offers them is very clear. They can become guardians of public land and nothing in this bill will stop the guardians from becoming beach trolls. That is what this bill will justify. It will generate expectations among Maori—and it has already as we can tell by the agitation that has made the life of the Hon Michael Cullen so miserable for the last year. The expectation is that this is a soft substitute for genuine ownership. When they are given guardianship with no definition of what a guardian is or does they will treat guardianship as equivalent to ownership. If it is not they will think they have been robbed. And if they think they have been robbed they will feel justified in slashing car tyres and doing the other kinds of things we have already seen people do when they do not accept that the rights they have been given are the rights they are entitled to.  
I have looked for evidence that what is really intended here is a consolidation of proper legal rights. As a lawyer of course I note that in this part we have the definitions. The definitions show just how racist this bill is. It is racist because they are not law; they are a set of slogans and duplicitous words designed just to postpone definition until later.  
Let us look at a few. Clause 4 says “tikanga Maori” has the meaning it is given in section 4 of Te Ture Whenua Maori Act. When we go there and see what tikanga Maori means we see that it means “Maori customary values and practices”. That is not law. Any people can expect their customary values and practices to move as they want them to. Law is something you can know in advance. Law is something by which people can order their lives by looking at it and saying: “Here is the boundary.” A custom or practice does not have a boundary. Maori are not going to forgo the right to shift to move and to develop. We have heard that in this Chamber. So the definition of tikanga Maori is not a legal one.  
What else do we have? We have a definition of “recognised customary activity”. This bill tells me to look at the Resource Management Act where it is “an activity use or practice carried on exercised or followed under a customary rights order”. Where is “customary rights order” defined? It is defined in this Act. So we are deliberately sent in a circle because they do not want us to know that there is actually no definition. There is no statement anywhere of what a customary activity is so people can invent it and with the collusion of the Maori Land Court make it up as they go along.  
Because there is so much agitation from Tariana Turia the Greens and Maori about not getting real ownership New Zealanders are being encouraged to think that this settles it—that the Crown ownership in this bill is what it says. It is not; it is simply a platform for the assertion of completely undefined rights and interests that will enable kaitiakitanga—guardianship—to be set up with all the rights of beach trolls. The Government anticipates now that this will apply to 10 percent of the coastline. I venture to say that it will be all of the coastline. Why would it not be when this bill which looks as if it defines the terms does not even do so? One of the drafting conventions is that one does not define— 
PITA PARAONE (NZ First) 
: 
 From the outset of the debate today I have wondered whether I was actually sitting in the Parliament of New Zealand given some of the vitriolic expressions in this Chamber towards the intent of the bill. As a New Zealander I reflect the face of our country in the sense that one part of me is Maori and the other part of me is of Irish and Scottish descent. This bill is all about New Zealanders. It ensures that the ownership of the seabed and foreshore that part of our country that lies between the high-water mark and the low-water mark is vested in the Crown for everybody—for Maori and Pakeha New Zealanders. The previous speaker wondered why New Zealand First was giving its support to this bill. That is the very reason we support the bill—because it is for everybody. It ensures that the ownership of that part of our country is vested in the Crown for and on behalf of every New Zealander Maori or non-Maori.  
We have heard in the debate this morning about the various descriptions the bill has introduced. I noticed that the speakers from ACT made particular reference to the last part of new clause 2A “Object” which states: “… including the protection of the association of whanau hapu and iwi with areas of the public foreshore and seabed.” I wonder whether in order to minimise that source of criticism we should have included “families extended families and clans” to describe the non-Maori make-up of our community. All that the wording in the bill does is to ensure that we recognise the connection Maori had with that part of our country before we were colonised. As I have used that word some of our Maori critics may feel that we have been colonised. But if it means that all New Zealanders can be assured of having access to that part of our country and of knowing that its ownership is vested in the Crown on their behalf then I am quite happy to say that I am colonised. 
 I just want to refer to the definition in clause 4 of “foreshore and seabed reserve”. In the discussions leading up to Supplementary Order Paper 302 in the name of the Hon Dr Michael Cullen it was suggested to us that we should include the phrase takutai moana in recognition of the belief that Maori had over that issue. New Zealand First and particularly its Maori members suggested that phrase should not be included and I will tell members why that was. I suggest to the Minister of Maori Affairs that when we talk to our relations about takutai moana 99.9 percent of my relatives and his relatives talk about where the sand begins and where the seabed ends on someone else’s coastline. By saying foreshore and seabed reserve we are quite clear as to the part we are talking about.  
The question was also asked of why New Zealand First supports this bill. One reason is that the legislation ensures the public foreshore and seabed is vested in the Crown. It ensures the rights of access and navigation of the public. 
MARK PECK (Labour—Invercargill) 
: 
 I move  
That the question be now put 
. 
Dr the Hon LOCKWOOD SMITH (National—Rodney) 
: 
 In speaking to Part 1 of the Foreshore and Seabed Bill I must observe that I just know what the Minister’s former colleague Sir Geoffrey Palmer would think of what is going on in this Parliament. He would consider this I suspect to be a constitutional outrage—and that is what it is. As we look at this bill we see at least 50 percent of it has been amended and that amendment was dumped on this Committee when the debate started. The consultation with the public of New Zealand on this legislation has been almost non-existent. Sure Maori have had a lot of say but the ordinary people who are members of the public in Rodney—where there is a huge coastline and foreshore in the Kaipara Harbour—have had no say on it.  
Today I have heard members of this Parliament refer to this bill as being deeply racist legislation. Members of the Government have denied that but when I look at the wording in Part 1 I see there is no way to escape that conclusion. Members of the Government have suggested that the bill is not racist because in applying to be involved in the administration of a foreshore and seabed reserve the applicant group is open to anyone under clause 4. Sure the definition of “applicant group” does not specify that the applicant group has to be Maori but the courts will have to try to interpret this law and that is why I think what we are doing today is so serious.  
This is new complex law and the way that the courts interpret it could have huge implications for New Zealand. How are they to interpret what an applicant group is? As I understand it a court would look back to the object of the legislation. Let us look back at clause 2A “Object”. We see nothing in that clause to suggest that anyone other than Maori can have any specific interests because what is protected under the object is “the association of whanau hapu and iwi with areas of the public foreshore and seabed”. How is a court to interpret that that means anything other than Maori? My family is not whanau or hapu. Those terms relate to Maori families and extended families. So clearly as we look at the object of this bill—even though it does not state this because the Government is trying to make it look as though this is not deeply racist legislation—we see an applicant group will have to be Maori.  
I look further in clause 4 at the issue of who is to administer those foreshore and seabed reserves. I think I even heard the Minister in the chair say that the High Court will be involved in the appointment of the members of the boards—the governors. When I look at clause 4 I see it states the members “are appointed in accordance with section 34E”. Does clause 34E spell out how the members of those boards are to be appointed? No it does not. All that clause states is that the High Court confirms appointments. This kind of law I believe is quite new for New Zealand and to be ramming it through under urgency even though it will provide huge opportunity for the courts to interpret what this Parliament is saying is a new kind of arrogance that surpasses even that of Dr Cullen who was certainly not dealt a short suit when it came to arrogance. This surpasses anything that I have seen.  
I come back to the fundamental concern I have with this bill which is that it is a new kind of law because the object makes it very clear that some of these measures are designed for Maori yet some of the specific clauses try to pretend that that is not the case. How the courts will balance up the conflicting elements of this legislation and sort that out in the future is something that this Parliament clearly cannot know. For us to be passing legislation under urgency when we have no idea how a court will interpret what we are doing is dangerous for the future of our country and it should be opposed. 
Hon CHRIS CARTER (Minister of Conservation) 
: 
 I move  
That the question be now put 
. 
A party vote was called for on the question  
That the question be now put. 
Ayes 66 
New Zealand Labour 51; New Zealand First 13; Progressive 2. 
Noes 53 
New Zealand National 27; Green Party 9; ACT New Zealand 8; United Future 8; Maori Party 1. 
Motion agreed to. 
The question was put that the following amendment in the name of Metiria Turei to clause 4 be agreed to: 
to omit paragraph (c) of the definition of  
foreshore and seabed. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 9 
Green Party 9. 
Noes 109 
New Zealand Labour 51; New Zealand National 27; New Zealand First 13; ACT New Zealand 8; United Future 8; Progressive 2. 
Amendment not agreed to. 
The question was put that the following amendment in the name of Metiria Turei to clause 4 be agreed to: 
to omit from paragraph (b) of the definition of  
public foreshore and seabed 
 the word “but”. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 9 
Green Party 9. 
Noes 109 
New Zealand Labour 51; New Zealand National 27; New Zealand First 13; ACT New Zealand 8; United Future 8; Progressive 2. 
Amendment not agreed to. 
The question was put that the following amendment in the name of Metiria Turei to proposed new clauses 2A and 3 set out on Supplementary Order Paper 302 in the name of the Hon Dr Michael Cullen be agreed to: 
to omit these clauses. 
A party vote was called for on the question  
That the amendment to the amendment be agreed to. 
Ayes 17 
Green Party 9; ACT New Zealand 8. 
Noes 101 
New Zealand Labour 51; New Zealand National 27; New Zealand First 13; United Future 8; Progressive 2. 
Amendment to the amendment not agreed to. 
The question was put that the following amendment in the name of Metiria Turei to the amendment to clause 4 set out on Supplementary Order Paper 302 in the name of the Hon Dr Michael Cullen be agreed to: 
to omit the omission of the definition of  
ancestral connection order 
. 
A party vote was called for on the question  
That the amendment to the amendment be agreed to. 
Ayes 17 
Green Party 9; ACT New Zealand 8. 
Noes 101 
New Zealand Labour 51; New Zealand National 27; New Zealand First 13; United Future 8; Progressive 2. 
Amendment to the amendment not agreed to. 
The question was put that the amendments set out on Supplementary Order Paper 302 in the name of the Hon Dr Michael Cullen to Part 1 be agreed to. 
A party vote was called for on the question  
That the amendments be agreed to. 
Ayes 74 
New Zealand Labour 51; New Zealand First 13; United Future 8; Progressive 2. 
Noes 45 
New Zealand National 27; Green Party 9; ACT New Zealand 8; Maori Party 1. 
Amendments agreed to. 
A party vote was called for on the question  
That Part 1 as amended be agreed to. 
Ayes 66 
New Zealand Labour 51; New Zealand First 13; Progressive 2. 
Noes 53 
New Zealand National 27; Green Party 9; ACT New Zealand 8; United Future 8; Maori Party 1. 
Part 1 as amended agreed to. 
Part 2 Public foreshore and seabed  
GERRY BROWNLEE (Deputy Leader—National) 
: 
 This Part 2 is entitled “Public foreshore and seabed” and it deals with access rights navigation rights fishing rights and a number of other aspects of activity in the public foreshore and seabed. One of the first things it does is to start to scope the limits of those access rights. It starts to talk about how authorities may be empowered to limit access to the public foreshore and seabed. We might say that that is reasonable. If the authority were a port company it would not want everybody strolling through the container yards; if it were a marina then clearly the operators at the marina would need to have some security for the craft located there. There would be other places too where we might say that it is perfectly reasonable for the public to have some limited access.  
We are fascinated by the references in clause 6(2) to issues granted under clause 21. Clause 21 directs us to new clause 62B Protection of sites of significance". There will be sites of significance around New Zealand there is no doubt about that and there might be a place where we might want to say it was not appropriate to go on to the foreshore and seabed. I can think of Maud Island in the Pelorus Sound where there are considerable bird-recovery programmes. Naturally we would want to see that access was somewhat limited—everyone benefits by the limitations put on such access.  
But the “sites of significance” becomes interesting when we start to consider the issue of the reservations that are likely to be set up for Maori. It is a fascinating prospect actually in the 21st century for a country like New Zealand to be creating reservations for Maori—a fascinating way for them to be treated. However when it comes to those reservations we find they are going to be administered by a governance group. The bill is absolutely silent on the structure of those groups—it is left open for the Minister to negotiate with the people who are the beneficiaries of those reserve areas.  
The question then becomes why a group would be administering an area if there were no capacity for them to make some rules about the usage of that area. Quite clearly what we see in new clause 62B is the power that those groups will have to restrict access to what we are now told will be 10 percent or more of the New Zealand coastline. Clause 62B talks about “sites of significance”. Surely any one of those reservations will be considered a site of significance—[ 
Interruption 
]—it is in this part. I raise a point of order Mr Chairperson. This just shows what a huge mess Parliament is in and how poorly constructed this legislation is. What I am referring to is a reference from clause 21—so we have clause 6 that sends us to clause 21. Clause 21 to be understood requires one to understand what is in new clause 62B.  
 It is new clause 62B(3) that I am most interested in canvassing. It cannot be discussed without a cross reference and for Dr Cullen to sit there and say that we are on the wrong part simply means that he does not have a clue what is in his own bill and it shows what a huge mess Parliament is in because it has not had the time to scrutinise the bill properly. 
The CHAIRPERSON (H V Ross Robertson) 
: That is not a point of order. The member will please continue. 
GERRY BROWNLEE 
: So members can see that the powers given to the governance or the governors of those reserves is quite considerable and implicit in subsequent provisions of the bill.  
We can also see an interesting little piece here about existing fishing rights reserved. What does that mean? Does it mean that the Ministry of Fisheries can no longer change catch limits around the coastline of the country? Does it mean that the Ministry of Fisheries will have to consult the new nominal owner of the foreshore and seabed the Department of Conservation which has in turn to discuss the matter with the Minister of Maori Affairs and will we see different catch limits made available in reservation areas for the beneficiaries of those areas compared with the rest of the country? The answer is almost certainly yes. Why would any people want to say that although something is theirs and they have governance over it anybody can come and stomp all over it and that even though they sit and meet and charge they still have to do just as they are told by the Minister of Fisheries the Minister of Conservation or the Minister of Maori Affairs? Everyone knows that is not how it will work. Those bodies will see themselves very much as mini - local authorities and in so many ways—although I will acknowledge before Dr Cullen races to his feet that we have not got to this part—this is also the first indication that the veto powers which the National Party has been so concerned about for so long remain in the bill. 
RODNEY HIDE (Leader—ACT) 
: 
 I raise a point of order Mr Chairperson. I am sorry to raise this but I just need your clarification. We are discussing Part 2. Does that include new Part 2A or will that be separate? 
Hon Dr MICHAEL CULLEN (Deputy Prime Minister) 
: 
 I can help on that matter. The member will see that there is a Supplementary Order Paper 304 in my name. In Supplementary Order Paper 302 which is also in my name the draftsperson put in an amendment to insert a new heading Part 2A but did not provide the necessary other wording to actually have a separate part. It has been redrafted. The exact wording of the operative clauses is all the same in both Supplementary Order Papers except that two typos have been corrected so members can read either version in terms of the meaning. It is now all part of Part 2. It is a single debate so the last clause in Part 2 is clause 34G.  
Rt Hon WINSTON PETERS (Leader—NZ First) 
: 
 When I listen to this unholy confused alliance and when I listened to the last speech which was mistaken on every point it brings to mind the famous words of Jonathan Swift who said: “When a true genius appears in the world you may know him by this sign that the dunces of the world are all in confederacy against him.” That is the case with this bill. As clear as daylight in the bill are the fundamental things that matter: the rights of access in clause 6 the right to be on the public foreshore and seabed the right to enter remain in and leave it the right to pass and repass—all those rights are there as clear as daylight except where they are changed by some other Act under clause 6(3). It is the same in clause 7 which sets out the rights of navigation the right to pass and repass and the right of passage except where some other Act circumvents or forecloses on that right. The right even to “remain temporarily in a place until wind or weather permits departure or until cargo has been obtained or repairs completed” is a total right when it comes to navigation. New clause 7A “Existing fishing rights preserved” states: “Nothing in this Act affects any rights of fishing recognised immediately before the commencement of this section by or under an enactment or a rule of law.” It is as plain as daylight. Any right that people may have had they still have under this legislation or it lies in other legislation. How about clause 11 “Public foreshore and seabed vested in the Crown”? What could be clearer than that?  
Why would National not support that? Why would National line up with the Maori Party or the Greens or any other group out there that has no interest in national unity or cohesion? Members should go to clause 12 “Public foreshore and seabed not to be alienated”. That is the reason why National is not happy with this legislation. National has always been dead keen on flogging off this country’s assets to anybody and everybody whether foreign or local. Public foreshore and seabed—[ 
Interruption 
] Mr Prebble says that that is his policy and he is right. The public foreshore and seabed is not to be alienated—it is not to be sold. That is why National opposes the bill. It has always been after the privatisation of somebody else’s resources.  
Clause 34B(3) sets out the issue of reserves. It concerns the issue of status in respect of the seabed and foreshore and the issue of access and the rights of navigation. I have mentioned all those provisions. There is a total assurance to any and every New Zealander that the rights of access and use will not be threatened at all. So why does the National Party put up its least-qualified person who has the least understanding of the issue and make him the No. 1 defender of its position? Where is the great communicator to lead the charge? Do members know why he is not here? He is not here because he cannot front it. He does not have a case or an argument and he does not have any contentious— 
Hon Richard Prebble 
: I raise a point of order Mr Chairperson. The member cannot talk about the absence of another member. 
The CHAIRPERSON (H V Ross Robertson) 
: I thought the member might raise that. The member has been here a long time. I suggest he look at Speaker’s ruling 23/7. 
Rt Hon WINSTON PETERS 
: Mr Chairperson to whom do you think I was referring when I referred to the “great communicator” or the great debater? I did not refer to the person National jacked up with the Toastmasters club in June of this year to be called the great communicator. I have not referred to any name or personality at all. The assumption that the person who does not have the guts to get down here and show himself is the “great communicator” is beyond me— 
The CHAIRPERSON (H V Ross Robertson) 
: The member has gone too far now. To infer that someone lacks courage is out of order. It is a personal reflection. 
Rt Hon WINSTON PETERS 
: But who is it? 
Gerry Brownlee 
: I raise a point of order Mr Chairperson. I do not know who some people may think Mr Peters is referring to. I know that he is referring to the Prime Minister and I think it was very offensive for him to refer to the Prime Minister as “he” in this Chamber. 
The CHAIRPERSON (H V Ross Robertson) 
: We have had our fun. We have a serious debate here and members should take a deep breath and get back to it.  
Rt Hon WINSTON PETERS 
: It is as clear as daylight to any doubting Thomas that the rights of access the rights of navigation and the personal fishing rights of New Zealanders are not attacked or interrupted in any way. The bill specifically sets that out. Just because it clarifies Maori rights and has greater definition as to what they may be does not mean that every other person is threatened. That is fundamental to the bill. It means that there can be some national cohesion and unity on this critical issue.  
Not one National Party supporter out there could possibly be happy with the argument that is being mounted by the National Party in the Chamber today—or rather the lack of it. That is why the great communicator would not come and communicate. He would not come and debate this legislation. 
Hon Richard Prebble 
: I raise a point of order Mr Chairperson. The member may be referring to the Prime Minister or he may be referring to the Leader of the Opposition but he was clearly referring to a member of Parliament because only members of Parliament can come here. Therefore his statements are out of order. I think given the fact that he is now a repeat offender you should terminate his speech so we can all go and have lunch.  
The CHAIRPERSON (H V Ross Robertson) 
: Mr Prebble always has something to add. I thank him and again refer the member who was speaking to Speaker’s ruling 23/7. He must not refer to the absence of members.  
Sitting suspended from 1 p.m. to 2 p.m. 
Dr WAYNE MAPP (National—North Shore) 
: 
 Part 2 is of course one of the major parts of the Foreshore and Seabed Bill and I anticipate an extensive debate and more than one call on it. In this particular call I shall focus on one particular issue only which concerns clause 11 on ownership clause 12 on the fact that the area is not to be alienated and then how that is tied into new clause 115A on the issue of treaty settlements. I heard this morning on the radio that Mr Peters claims—and I use the word “claims” advisedly—to be protecting the public interest and that there will be no alienation of the foreshore and seabed. We know from answers given by the Prime Minister in this House that that is a false statement. The Minister in the chair the Hon Dr Michael Cullen also knows that that is a false statement. We know that the Government has made its deal with its own internal opponents in the Maori caucus—a special deal that is contained effectively in clause 115A.  
I want to say this. Clause 11 purports to provide for Crown ownership of the foreshore and seabed. That clause then immediately states that it is subject to the customary rights provisions of clause 28 and other clauses thereafter. So straight away the idea of absolute ownership on behalf of all the people of New Zealand is immediately compromised—hugely compromised by a whole panoply of customary rights orders. They will be the territorial customary rights orders and the Government’s management plans that go with that. That will hugely compromise the reality of Crown ownership and it is all set out in subclause (3). So the first point is that when the Government states in clause 11 that it provides for absolute ownership on behalf of the Crown that is of itself compromised within the very same clause by the provisions of subclause (3).  
The next issue—and this is more serious—is the link to clause 12 “Public foreshore and seabed not to be alienated”. That of itself seems to be a grand promise. After all this Government and New Zealand First in particular have gone up and down the country and said they will protect the public interest by guaranteeing ownership of the foreshore and seabed on behalf of all New Zealanders. They are not true to their word. They have knowingly set up a device whereby the foreshore and seabed will be alienated. They heard in May of this year that the Prime Minister intends to settle treaty grievances by transferring foreshore and seabed to Maori owners. OK I know that the New Zealand First speakers will say that that takes a special Act of Parliament and that they will not consent to it. They will say that but of course they know perfectly well that the Labour Government will go along to the Green Party the United Future party or the Maori Party and get votes from those parties for the alienation of foreshore and seabed for those settlements so there will be a majority.  
What has really happened in effect is that New Zealand First has set a process in place in this bill to enable the alienation of the foreshore and seabed. That is actually not some kind of secret. The Prime Minister directly told the nation through her answers to parliamentary questions in this Chamber that that is exactly what will happen. I am prepared to bet that the Government will transfer ownership of the west coast harbours—Kawhia Aotea and Raglan—together with much of the East Cape the Eastern Bay of Plenty and the far north estimated by the Maori members to be 10 percent of the New Zealand coastline to Maori. That will require special Acts of Parliament; I acknowledge that. But that is what the Government will do—and the Green Party will vote for that absolutely consistently as will the Maori Party. The Labour Party knows that. The reality is that New Zealand First has been duped. It has been duped and is duping its supporters as a consequence. New Zealand First’s supporters have trusted it. 
Debate interrupted. 
Visitors 
Delegation from the Senate of the State of California United States of America 
The CHAIRPERSON (Ann Hartley) 
: I have much pleasure in informing members that a delegation from the senate of the state of California United States of America is present in the gallery. I am sure that members would wish that delegation to be welcomed. 
Members of the Committee of the Office of the Deputy Prime Minister from the House of Commons United Kingdom 
The CHAIRPERSON (Ann Hartley) 
: I also have pleasure in informing members that members of the Committee of the Office of the Deputy Prime Minister from the House of Commons United Kingdom are present in the gallery. I am sure that members would wish that delegation to be welcomed. 
Foreshore and Seabed Bill 
In Committee 
Debate resumed. 
Part 2 Public foreshore and seabed  ( 
continued 
)  
Hon Dr MICHAEL CULLEN (Deputy Prime Minister) 
: 
 Let me just try to respond as best I can to that sort of farrago of paranoid nonsense because that is what it actually was. 
Dr Wayne Mapp 
: The Prime Minister said so. 
Hon Dr MICHAEL CULLEN 
: No the Prime Minister did not say that. The member really has got to stop misquoting people in the House in that way. Clause 11 says that the public foreshore and seabed is vested in the Crown. That then has to be judged against another constitutional fact in New Zealand which is that Parliament is sovereign and no Parliament can bind its successor. [ 
Interruption 
] 
I do not see much point in laughing about that. Some of us believe it is a fairly important principle of our constitution. I invite the member to shut up for a minute—if he does not listen at home he at least should listen here—and listen to what would happen if clause 12 did not say that alienation cannot occur except by a special Act of Parliament or under section 355 of the Resource Management Act. What does the member think would happen? Under this bill if there was no mention in clause 12 of that the Crown could alienate public foreshore and seabed by means simply of agreement or sale. All that subclause (2) of clause 12 says is that the only mechanism by which that can be done is under section 355—and as the member will note that is subsequently actually amended in a very significant manner so that the only alienation that can occur is in terms of a perpetual leasehold as opposed to a freehold title—or by Act of Parliament. 
But our saying that actually does not change the fact that an Act of Parliament could change that provision in clause 11 in any case. If clause 12 did not exist—and this is where it is a paranoid farrago of nonsense—the reality would be that there would be less protection for Crown ownership. The law is as simple as that on this point. Why members of the National Party keep going into these issues in that form I do not know. They are actually making fools of themselves amongst the general public who understand some of these things. 
Two members are moving entrenching clauses. The point I would make first of all is that this Parliament has only ever passed entrenching clauses on matters where it is actually determining the interests of its own members and the reason for the entrenching clause is to prevent a simple majority affecting the rights of the minority in that respect in certain parts of the Electoral Act. They are very specific and they themselves of course have been there for a long time and have acquired a strong conventional status in that respect. We have done it nowhere else and I do not believe we should start going down the route of entrenching clauses in general. I think they are bad law and should be confined to cases such as the Electoral Act. 
In the case of the Green amendment I am particularly opposed because it distinguishes between a super majority required for an alienation generally and a simple majority required for an alienation in the context of a Treaty of Waitangi settlement. It does seem to me that that would open up the bill to very strong accusations of having effectively an ethnic-based or racist-based element within it. It would have to be across the board as Mr Baldock’s amendment is across the board. But the Government cannot support that amendment and of course as I am sure the member realises to pass a 75 percent entrenching clause requires 90 members of the House to vote for it and therefore of course that amendment will actually fail. 
BILL GUDGEON (NZ First) 
: 
 Tena ano tatou katoa i huihui mai nei i roto i tenei o o tatou whare. Greetings to all of us who are gathered here today. 
Simon Power 
: I raise a point of order Madam Chairperson. Just as a matter of clarification as we head into Part 2 I ask whether it is your intention to have two calls in a row for parties that support the bill or do you intend to follow the convention of having a speaker who opposes the bill following one from a party that supports it. I would be interested in your view on that. 
The CHAIRPERSON (Ann Hartley) 
: The member is quite correct. I did make a mistake. The speaker should have been from the opposing side. I will certainly make sure that that will happen. 
Dail Jones 
: I raise a point of order Madam Chairperson. I am sorry to interrupt the New Zealand First member. When the Rt Hon Winston Peters was speaking he was interrupted five times on points of order by the National Party and the ACT party. I would ask that if National members wish to raise a point of order on a matter of procedure they do that either before a speech begins or after a speech ends. It is simply a matter of courtesy and I hope that those members would bear that in mind in future rather than interrupting us all the time. 
The CHAIRPERSON (Ann Hartley) 
: The point of order was a correct point of order and it was correctly called at the time. It was also my error. 
BILL GUDGEON 
: For the Committee I would like to go back a little in history. It might refresh the minds of some of us who are in the older age bracket and some of those in the younger age bracket might learn something today. To an almost purely Maori audience at Whangara on 25 April 1946 Anzac Day Ngata stated in plain terms his loyal attitude and also Maori indebtedness to the British Crown and Commonwealth of Nations. In a speech considered by many to have been one of the most significantly effective of his career he declared and maintained that although the Maori people had suffered from many injustices inflicted in the past they as an indigenous race were fortunate indeed to have come into the membership of the British Commonwealth. Although insistent upon the recognition of rights as British subjects that were guaranteed to his race by the Treaty of Waitangi he never spurned cooperation with the Pakeha. His life was and had been devoted to the preparation of his people for full responsibility as citizens. British authority was accepted by our forefathers and it has given Maori the rights they would not have been accorded under any other. 
New Zealanders will own the foreshore and seabed. If we are building a road to somewhere let us build it together. The road to nowhere is achieved by divisive tactics choices and policies. New Zealand First has advocated and will continue to advocate policies for one law for all in order to build nationhood rather than no good. Is that really too much to hope for? The question was asked in this Chamber on 10 November 2004 by New Zealand First leader Winston Peters.  
The beach will not cannot and never will be sold to foreign interests. Customary rights for New Zealanders will be protected. Policies of irreversible damage over the past two decades have led us to a constitutional crisis as to who owns our foreshores seabed and all their other resources. Those policies were created by former Governments. If we follow along those lines it will support and confirm the ideological thinking of the leader of the National Party Dr Brash that racism exists.  
On 27 March 1995 the  
New Zealand Herald 
 reported Dame Whina Cooper’s concerns about Aotearoa. The view that Dame Whina Cooper had campaigned for all her life was to bring New Zealand together. All this talk of sovereignty and separatism is contrary to her vision for New Zealand.  
The object of this act 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 whanau hapu and iwi. It amazes me that as soon as the words whanau hapu and iwi are brought out we are accused in this Chamber of being racist. If I said family extended family and the greater extended family would that change the issue? Would that say that we are not racist? 
Port companies will get certainty of tenure. We are confident that with the outcome we have secured that provision will go ahead. I am confused about where the National Party is coming from. One minute they are telling us of divisiveness that exists and now that New Zealand First is promoting the law National is opposing it. 
LARRY BALDOCK (United Future) 
: 
 I rise to speak on Part 2 and in my first call on the part to address the issue of my amendment on the table with regard to the entrenchment of clause 12(2)(a). After the speech of Dr Wayne Mapp I am almost certain that we will have National Party support for that amendment because he made it very clear that National wants to prevent any future alienation of the foreshore and seabed. So we shall look forward to National’s vote when the vote is taken at the end of this debate.  
After the presentation by the member from New Zealand First I am almost certain that that party too will be supportive of the amendment because its members are known to have been going around the country for some time talking about not selling off the silver in New Zealand. The Rt Hon Winston Peters already said in his speech: “We can’t we won’t we will not sell the beach in New Zealand.” So we look forward to New Zealand First’s support also.  
My amendment is simply to alter clause 12(2)(a) so that instead of the clause saying that any part of the public foreshore and seabed can be sold only by a special Act of Parliament it will require that that special Act is passed by a majority of 75 percent of all members of the House of Representatives. Although it is true—and I agree with the Hon Dr Michael Cullen—that no Parliament can bind a future Parliament a Parliament can make it more difficult for a future Parliament to alienate the foreshore and seabed.  
That is something that many submitters throughout the submission process asked the committee to look into. There was a great deal of suspicion for different reasons on different sides of the issue and a great deal of suspicion about the Crown’s intentions in taking ownership—suspicion that in future the Crown may be tempted to flog it off for short-term gain. I believe that the amendment I am proposing is clearly in response to that request and is a reasonable one. I was hopeful that the Government might have seen that also because the suspicion still remains. If the Government doesn’t support this amendment then people will be wondering whether it intends to do some backroom deals in terms of treaty settlements. 
United Future has no problem with what is now emerging in the bill—the opportunity for a foreshore and seabed reserve to be placed on top of Crown title in order to give a recognition to a territorial customary right—but we would have a concern if a freehold title were being given to Maori because we have made it very clear that no one is to own the foreshore and seabed. So it would certainly send a very clear signal to New Zealanders if the Government supported this amendment and entrenched that particular clause.  
Another part of my amendment would create new clause 114(aa) which concerns the issue of double entrenchment. We would like to get really tough on a future Parliament by not only stating in the Act that the provision has to have 75 percent support which we all know can be amended by simple majority but by also supporting clause 114(aa). That would mean that whatever the majority was passing that clause—and I tell Dr Cullen that I understand from my advice from the Clerk it does not have to be 75 percent—the initial clause of 12(2)(a) would be entrenched to that level. The majority could be 60 percent 70 percent 90 percent or perhaps in this Parliament it could be as much as 100 percent because we have all been hearing speeches—except perhaps from the ACT party—that here there is no intention ever to see the foreshore and seabed alienated. 
So as this amendment is put on the Table I hope the Government might reconsider its position. I am confident of the support of National and New Zealand First and also the Green Party. The Green Party certainly would not want to see the foreshore and seabed sold off in any shape or form. In fact it has a similar amendment although as Dr Cullen pointed out it allows for a treatment different to mine under the treaty clauses. 
I am hopeful we may see my amendment pass. It will mean a great deal. I do not think we need to be hung up on the fact that we are setting a precedent because this Parliament sets precedents all the time. In fact we do that any time we really want to; it is just a question of whether we see the matter as being important enough to do so. If we do not pass the amendment then that raises issues with clause 15 which I will deal with in my next call. 
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. 
STEPHEN FRANKS (ACT) 
: 
 This part of the bill that the chairman of the Fisheries and Other Sea-related Legislation Committee has just been explaining does to some extent reflect existing law. But it goes further. Indeed Dr Cullen’s intervention when he tried to explain why a provision stated not only the obvious but in fact cast doubt on the obvious I think exaggerated the problem that has been created. Some poor judge some day will probably pour through that contribution to this debate in an attempt to work out whether in fact there was an assumption by the drafters or by this Committee that clause 12(1) did prevent or tried to affect a subsequent Parliament and that we wanted to make it clear or whether there was some sort of developing doctrine that Parliament could bind future Parliaments. I am sure that Dr Cullen’s address on the matter will have helped.  
But what is not clear is why this part then goes on and tries to trample all over the idea that the Crown’s ownership is normal full absolute ownership by cancelling the Crown’s computer-generated titles. The Minister in the chair the Hon Dr Michael Cullen could I am sure explain just what is intended by that. Is it some kind of vandal’s assurance—some notion that if we cancel the computer entries that show the boundaries of what the Crown owns which is just what a title is—that it is a deeply emphatic statement that the Crown never intends to do anything with it? If that is the case then New Zealand as well as Maori are losing badly by this move.  
There is a great temptation in this House to make bold statements about the seabed and foreshore never being available for any kind of alienation. In fact every community in this country will have projects that will require them to come to this House and get a special Act of Parliament to allow them to finance and achieve outcomes on what is currently public foreshore. The reason is that most of New Zealand’s coast is not the kind of iconic beach that this debate focuses on. It does not provide great fishing spots. Much of it is land that is eroding. Much of it is land where people will want to protect existing boundaries. They will have works that are not just breastworks for marinas or ports; there will be roads to quarry and all kinds of works to undertake that this will complicate— 
Hon Pete Hodgson 
: Below the low-tide mark? 
STEPHEN FRANKS 
: Below the mean height—of course there are. I can think of an area very close to my place in the Wairarapa where the legal road has disappeared into the sea but the actual road being used gets moved probably every 3 or 4 years.  
This bill states that even legal roads will disappear if they are not used. It does not state for how long. A road could be blocked for a week. According to this the Crown could say: “Sorry you’re trumped—off you go.” Why does the bill not define how long the period of disuse is—because this is a great fat confiscation to make a political statement? 
 The Minister in the chair Dr Cullen is leaning back looking amused by this—probably because he is thinking: “These are the arguments I made to my colleagues but they were too stupid to listen.” He is probably thinking that this sounds very similar—[ 
Interruption 
] I see we have stirred Mr Peters into action. He is saying: “These are the arguments that Dr Cullen was making to me but I was too politically cunning to pay any attention because they are simply rhetorical.”  
Part 2 is going to be very expensive for communities all over New Zealand. Part 2 states that not only does the Crown own it absolutely but in response to Nanaia Mahuta it does not have to have regard to any fiduciary interests. I could not understand Nanaia Mahuta’s speech earlier today when she said that the Crown held as a fiduciary. This bill expressly states that it does not hold as a fiduciary. It holds absolutely as the Crown—in fact the old-fashioned imperial Crown from the look of it because I cannot imagine what other purposes it would have held for other than as a fiduciary for the people of New Zealand but this bill states that it does not.  
That will make it much easier for the Crown in defeating opportunistic claims but why is it that the Crown has to grab all of the existing property interests other than those that are expressly private? Why do local authorities have to turn up cap in hand and go to the Minister of Conservation? He is not required to pay them proper compensation.  
SHANE ARDERN (National—Taranaki-King Country) 
: 
 I have been seeking the call for some time and it is an honour to be given one. 
Hon Maurice Williamson 
: Well don’t waste it. 
SHANE ARDERN 
: I certainly will not be wasting it because I have a question for the Minister in the chair the Hon Dr Cullen and for the chair of the select committee. Why did they not allow this measure to go through the Maori Land Court process? The only answer that I can conclude is that they did not trust the lefty activists that they themselves put into that court. Why else was it not allowed to go through the full court process? The chair himself said that this is a very simple amendment and it is not as big as people make it out to be. If that is the case then why not trust the court process to sort it out? Why are we here today under urgency with this kind of process? 
Hon Dr Michael Cullen 
: Is that the National Party position? It’s position No. 5 for today. 
SHANE ARDERN 
: The Minister can criticise the National Party but he has not answered that basic question. Why is it that Maori in New Zealand who have blindly followed this Labour Government and other Labour Governments for the last 100 years were not given a simple answer to that question? The Minister in the chair will not answer but we know what the answer is. It is because it was politically too difficult for them to handle. I remind those members of the old saying: “You can please some of the people some of the time but you can’t please all the people all the time.”  
The Labour Government has tried to have a bob both ways and it has failed. If it were not for Winston Peters and the New Zealand First Party this legislation would have fallen over because the Maori members of the Labour caucus have been jumping out of the waka so quick it has tipped over as well. If it had not been for the support of New Zealand First this bill would not have proceeded.  
I say to the Minister and to those other members if it is a very simple amendment why is it that we had hui up and down New Zealand for months and months then we had a select committee process that went on for months and months then a 67-page Supplementary Order Paper that was introduced yesterday afternoon at 5.30 p.m.—[ 
Interruption 
] The Minister is disputing what I am saying about the Supplementary Order Paper but I have a copy here and there are exactly 67 pages. I was absolutely right. The Minister does note even know how many pages there are in his own Supplementary Order Paper. Why was that Supplementary Order Paper introduced at 5.30 yesterday afternoon without Parliament being given the proper chance to go through it in the way that it should?  
I say to the members of the Maori caucus that they have been duped and their electorates will point that out to them. It will not happen for a while—probably not for a couple of years. I forecast that the real problems hidden in this divisive legislation will not surface for a couple of years but when they do they will remember who it was who allowed this to go through Parliament. I say to them that they still have a chance. One of their colleagues has jumped out of the waka and there is still time for the rest of them. They can jump out of this waka tip it over sink it and finish it. This legislation is not in the best interests of their own people and I appeal to their better judgment to do what is right and hang out for their own people. They sent them here they elected them and those Maori members should not let themselves be swept along with the rest of the socialists who are trying to sweep them under the carpet with this legislation.  
There are 18000 kilometres of coastline in New Zealand. As the chair of the select committee said everybody in New Zealand had an expectation in mind as to who had access. It came about as a result of Queen Victoria saying to Governor Hobson in 1843 that the people of New Zealand whether they be Maori or European should have access to the seabed foreshore and coastlines and that has been the case ever since. There is no dispute about where that started; it is absolutely well and truly recorded in the history of New Zealand. Why is it then that at this point in time because of an oversight in the Resource Management Act—it was not a deliberate misleading of Parliament or of the people of New Zealand—we are here today in urgency debating what the chair of the select committee himself says is a very minor technical amendment when really it is just an amendment to the Resource Management Act to prohibit Maori from having what they always thought they had? Why are we doing that? Perhaps the Minister or any other Government member could take a call and clear this up. Why was there not just a simple amendment to the Resource Management Act to stop that from happening? 
PETER BROWN (Deputy Leader—NZ First) 
: 
 I will endeavour to help out the member who has just resumed his seat Shane Ardern because he has asked a number of questions that I thought would be self-explanatory. If he looks at clause 11 “Public foreshore and seabed vested in the Crown” it will tell him if he is not already aware that the vast majority of New Zealanders—I would say almost 99.9 percent; obviously there will be one exception—want the foreshore and seabed to be in public Crown ownership. [ 
Interruption 
] The member is contesting that but I can tell the Committee that if one goes out and talks to New Zealanders they say they want the seabed and foreshore in Crown ownership. This bill delivers that and that makes common sense to most New Zealanders who are supportive of that position.  
Part 2 determines the rights of access. I ask honourable members whether they disagree with the right to be on the public foreshore and seabed and the right to enter remain in and leave the public foreshore and seabed; the right to pass and re-pass in on over and across the public foreshore and seabed; the right to engage in recreational activities in or on the public foreshore and seabed; and that every natural person has access rights in over or across the public foreshore and seabed. That is what this bill is endeavouring to deliver and will deliver by the time it is passed through the House under urgency.  
It is regrettable that the select committee could not find the time to overcome the difficulties and report the bill back.  
Hon Ken Shirley 
: The member obviously wasn’t there. 
PETER BROWN 
: I was not on the select committee— 
Hon Ken Shirley 
: You don’t know what you are talking about. 
PETER BROWN 
: I know what I am talking about. I think the select committee members should have got their heads around this bill in a far better way than they did. I am well informed on this bill. I have to compliment my colleague Dail Jones who has done an awful lot to put common sense into it. On top of that Dail Jones has done an awful lot to appraise his colleagues of the concerns related to it. Maybe I should use the word “awesome” as that is the modern language. I personally compliment my colleague.  
I have to dwell on clause 7A “Existing fishing rights preserved” because at least one member is confused. It means that any individual can go along and fish to his or her heart’s content.  
Tariana Turia 
: Can’t they do that now? What’s changed? 
PETER BROWN 
: Exactly! What has changed? So why are members standing up and saying that this will not occur? This protects it in legislation. This bill also outlines the rights of navigation over the seabed—[ 
Interruption 
] My colleague asked about navigation. How ridiculous would it be if we had a ship that could not navigate over a piece of— 
Hon Dr Michael Cullen 
: Seabed—not foreshore. 
PETER BROWN 
: —seabed and water? I do not think any members in this Chamber would claim ownership of the water would they?  
Dail Jones 
: Yes. 
PETER BROWN 
: They might yes. Effectively one could not claim ownership of the water because it is ever-changing. It is logical that ownership cannot be claimed of the land that is beneath the water which is there for the common good. I am surprised that National members have not got their heads around this bill and are not supporting it. I really am. One has only to look— 
Hon Dr Nick Smith 
: We only got it yesterday. 
PETER BROWN 
: The member is indicating that he needs a little bit more time and then he would support it. Am I taking that from the member’s words? 
Hon Dr Nick Smith 
: Answer our questions. 
PETER BROWN 
: I think he is getting umpteen answers. I suggest to honourable members that they go and read this bill and get their heads around it. I can tell them that it sits very comfortably with some of the statements that they have been making about Crown ownership of the seabed and foreshore. 
Hon Dr Nick Smith 
: It’s a parliamentary outrage. 
PETER BROWN 
: The member says that it is a parliamentary outrage. I suggest that he reads this a little bit more thoroughly than he has done thus far.  
Gerry Brownlee 
: We only got it yesterday. 
PETER BROWN 
: I can only conclude that we have some part-time MPs sitting alongside us on the National Party benches. 
METIRIA TUREI (Green) 
: 
 The Green Party also has a number of amendments to Part 2. One amendment is to alter clause 12 and like United Future to put in place an entrenchment clause. We will be supporting United Future’s amendment and hope that if that fails United Future will support our amendment. However our amendment has a significant difference in that it excludes any agreements or special legislation for the transfer of title for treaty settlements. The whole point of this bill has been to completely reconfigure the way that customary rights and potential title in the spectrum of title are available to Maori. Treaty settlements may be appropriate in this area and therefore we have an exclusion in our entrenchment clause for that.  
Another of our amendments is to clause 28. Clause 28 has been changed by Supplementary Order Paper 304. The changes that have been negotiated to that clause—we understand by New Zealand First—have meant that the territorial customary rights for Maori will be virtually impossible to get. The changes have significantly confined the criteria that Maori will have to meet in order to get a territorial customary right. There are two criteria that render this clause effectively useless. The first is that the exclusive use and occupation has to have happened substantially without interruption between 1840 and now. It would be almost impossible to show that those uses and occupations have occurred to the exclusion of all others.  
If everyone in the whole country has been working on the basis that they can go anywhere anytime they want then it will have been impossible for anyone to have kept people from general access to those areas of land. Yet Maori have to prove that not only have they continued to use and occupy that same area for the same purposes since 1840 but that they have been able to exclude others from it. It is an extremely high test. There is no justification for that and it will be virtually impossible to prove. So it is making it very very difficult for Maori to get through that particular hurdle.  
Then of course that same little subclause restricts the activity to what was happening in 1840. The select committee heard evidence from iwi and hapu who talked about the kinds of sharing manaaki processes that have happened over time where coastal iwi would grant certain rights to inland iwi for the purposes of customary activity on the foreshore and seabed. If under tikanga Maori those processes have happened since 1840 then the people who have those customary Maori tikanga rights will not be able to exercise them because New Zealand First wants to keep Maori static as they were in 1840. New Zealand First and its Maori MPs want to keep Maori as savages—as natives—in their own land. Tikanga Maori is entitled to as much development and progression as any other culture in this country. New Zealand First is keeping us from being able to develop our customary rights to develop our tikanga Maori to engage in the customary tikanga processes that we have been engaging in since mai rano yet it continues to keep us down. New Zealand First wants us still in grass skirts and in the museum.  
If the concern is to make sure that those customary rights are legitimate there are other ways of making sure. Maori do not need to be continually confined to the existence we had in 1840. What is the point? We are continually told that we have to be modern people in this new technological age. We are doing that all the time. We are meeting those expectations. We are managing ourselves in those ways. We are achieving and excelling in the modern world yet New Zealand First and the Labour Government want to keep us static and stuck in 1840. This clause is an absolute disgrace. It is fundamentally racist. New Zealand First and the Labour Government are complicit in keeping us stuck in 1840. The Green Party will ask for the removal of that clause. 
Hon MARGARET WILSON (Attorney-General) 
: 
 I rise to address the point raised by the previous speaker from the Greens relating to proposed new clause 28 and territorial customary rights. Her presentation of the issue expressed a common fundamental misunderstanding about what issue this bill addresses. The bill in fact addresses the issue that was before the Court of Appeal: the nature of common law customary rights. The basis on which the Ngati Apa people brought their application to the Court of Appeal was common law customary rights. The Court of Appeal addressed those common law customary rights not treaty rights.  
The difficulty has been that most people do not understand the nature of common law customary rights. That is why the Court of Appeal said that it felt that in the circumstances of New Zealand—even though it called into question whether the foreshore and seabed had been vested in the Crown and therefore quite legitimately there was a right to pursue whether the common law customary title still prevailed—there would be few cases where under the common law test there would be proof that customary title still prevailed. In most instances under that test it had been extinguished by events since 1840. The way in which those issues of extinguishment have been dealt with in this country—if they were not done in the correct way of redress—has been through the Treaty of Waitangi. That is why the 1840 date becomes of such significance.  
I perfectly accept that sovereigntists on all sides of the argument wish that we did not have the Treaty of Waitangi because their argument would then prevail. But the fact and reality with which we deal is that we do have the Treaty of Waitangi and this issue cannot be considered without putting it into the context of the treaty. 
Dr Lynda Scott 
: Why not? 
Hon MARGARET WILSON 
: Because the common law customary rights have been addressed by the Treaty of Waitangi. Where they have not been addressed by the Treaty of Waitangi then the common law test prevails. It is a misunderstanding as to what the common law test for customary title is that has been an obscuring factor throughout this entire debate.  
 For those who have bothered to read new clause 28—and I say as an aside to those who think there is no explanatory note that there is and members should read it if they cannot be bothered to read the whole provision—the important point to note is that the definition of the criteria to establish a territorial customary right is founded in the common law jurisprudence. The clause reflects an analysis of both the Canadian and Australian jurisprudence and also takes into account the local context since the 1840 date. If we look through the provisions relating to exclusive use and occupation we see that they are the essence of the common law test. The fact that we have contiguity is an essence of a common law test. It has been if one likes widened and broadened through the inclusion of words like “significant” which means that the contiguous area does not have to be made up of exactly the same amount of land. We have tried to take account of the local circumstances so that we get a law that can work.  
The people who bring claims under this provision will know precisely what the criteria are and what factors they have to address to be able to go to court to get an order that a territorial customary right exists. Once that order is made—if it is—on the facts set out in the claim then the provisions provide for redress. I know that members will discuss that redress in the debate on another part.  
Hon Dr NICK SMITH (National—Nelson) 
: 
 That was an extraordinary contribution from Margaret Wilson a person who used to give law lectures about unbridled power—[ 
Interruption 
] Old Winston Peters here changes his tune to suit himself. He gets to his feet and cries constitutional outrage when it suits him but suddenly he is in the club. He is in bed with Margaret Wilson trying to push this legislation on to New Zealanders without any sort of proper public process.  
I refer in particular to proposed new clause 7A which shows how this Government talks with a forked tongue. On the one hand— 
The CHAIRPERSON (Ann Hartley) 
: I ask the member to please be seated. We had a ruling on that this morning. “The Government” and “a member” mean the same thing. I ask the member not to use that phrase. 
Hon Dr NICK SMITH 
: I wish to say that there are two different songs being sung. The Maori caucus is telling its constituency not to worry because 10 percent of New Zealand’s coastline will be set up in special foreshore and seabed reserves. That is what it is saying. That means that the control of 2000 kilometres will be transferred from democratically elected local and regional councils to iwi. Iwi will be running it. On the other hand others are saying that it will be so difficult to get a foreshore and seabed reserve through the legal tests that Local Government New Zealand and other New Zealanders should not worry because there will be a negligible number of reserves. Which view is correct? 
Hon Dover Samuels 
: So what? 
Hon Dr NICK SMITH 
: I ask Dover Samuels whether he has been given a reassurance that 10 percent of the coastline will be in foreshore and seabed reserves. Could some other Labour member tell me whether what is on the front page of the  
New Zealand Herald 
 which states that 10 percent of the coast will be in foreshore and seabed reserves is correct? Is what Labour’s Maori caucus saying correct? 
Hon Dr Michael Cullen 
: They did not say that. 
Hon Dr NICK SMITH 
: Let us read it then. It states: “The Maori caucus believes …” that the foreshore and seabed reserves “… could yet cover more than 10 percent of the coastline.” Is that what New Zealand First members understand? There is silence. They do not know. We are under urgency being asked to introduce a completely new concept—foreshore and seabed reserves—and we have been told by the Maori caucus that they will make up 10 percent of our coastline. That is hugely significant.  
Hon David Benson-Pope 
: The member has been drinking that V stuff again. 
Hon Dr NICK SMITH 
: Can Mr Benson-Pope answer me? Can he simply answer the question? Will those areas make up 10 percent?  
Hon David Benson-Pope 
: Calm down. 
Hon Dr NICK SMITH 
: He simply will not answer the question. He wants to make all sorts of personal accusations and irrelevancies but he is not prepared to debate the bill. The Labour Party is delivering a con job. It is telling Maori one thing and the rest of New Zealand something different. That will not do. I will give a very practical example. This bill states that somehow fishing rights will not be affected. Let me give members a practical example. In my area Nelson Maori who claim ownership of the Wakapuaka estuary have erected a gate. That is perfectly possible under these new provisions for foreshore and seabed reserves. It is quite possible. 
Rt Hon Winston Peters 
: Under the water? 
Hon Dr NICK SMITH 
: The member here is chipping in. He would not know. As a consequence of stopping people from being able to launch their boats at that site those Maori effectively stop fishing rights.  
Rt Hon Winston Peters 
: So it’s on land? 
Hon Dr NICK SMITH 
: Winston Peters does not know where Wakapuaka is and he does not know about the erection of the gate. The issue has been on TV and is the subject of a petition. If the member cannot sort that out I cannot solve his problems. The fact is that if one can erect a gate and stop people from launching their boats that will control their fishing rights.  
So this new clause 7A which states that nothing in this legislation will affect people’s recreational fishing rights is not worth the paper it is written on. Of course people will be able to erect gates control who gets the key and indirectly control the fishery.  
Government Member 
: That’s not correct. 
Hon Dr NICK SMITH 
: Why is that not correct? Members opposite cannot explain because they are wrong. 
Rt Hon WINSTON PETERS (Leader—NZ First) 
: 
 What a sad mindless leaderless rabble the National Party has become. Right there we heard Nick Smith and the National Party supporting the “Freedom to Roam Bill”. One can walk on anybody’s land— 
Hon Dr Nick Smith 
: Foreshore! 
Rt Hon WINSTON PETERS 
: No that gate is not underwater. That gate is on riparian land. [ 
Interruption 
] I ask him to sit down. Madam Chairperson he cannot do that. Can I start again? I started and the member stood there and shouted at me.  
The CHAIRPERSON (Ann Hartley) 
: Carry on. 
Rt Hon WINSTON PETERS 
: What a mindless leaderless rabble the National Party has become. Nick Smith got up. He would not tell us whether the gate was underwater. 
Hon Dr Nick Smith 
: It’s on the foreshore. 
Rt Hon WINSTON PETERS 
: Oh it is on the foreshore. No it is not. It is on riparian land; it is not part of this bill. I tell members not to trust the National Party when it comes to land. 
Gerry Brownlee 
: I think the speech is ridiculous but my point is that we are not able to stand up in the Chamber and say that a member is lying. That would be unparliamentary and out of order. How can it be in order for a member to so distort the contents of this bill to make his points?  
The CHAIRPERSON (Ann Hartley) 
: The member will be seated. 
Gerry Brownlee 
: Mr Peters knows full well that the foreshore goes to the mean high-tide mark— 
The CHAIRPERSON (Ann Hartley) 
: The member will be seated. 
Gerry Brownlee 
:—and there are months in the year when it is dry land.  
The CHAIRPERSON (Ann Hartley) 
: The member will be seated. 
Gerry Brownlee 
: There are thousands of kilometres on the foreshore and if he has not worked that out he should get out of the Chamber and read the bill he is supporting.  
The CHAIRPERSON (Ann Hartley) 
: The member will now leave the Chamber. He was told to sit down three times. He will leave the Chamber now. He was ordered to resume his seat. I was ruling on that. 
Gerry Brownlee withdrew from the Chamber. 
Simon Power 
: I raise a point of order Madam Chairperson. We find ourselves in a difficult position at this point for this reason: during the course of Mr Brownlee’s point of order—and I am not disputing your ruling—prior to you asking the member to resume his seat Mr Brownlee was met with a number of comments from New Zealand First members. You have ruled on several occasions since the Committee stage commenced that points of order are to be heard in silence. When Mr Brownlee was interjected upon during his point of order he retaliated in sort. He has now been asked to leave the Chamber. We do not dispute that ruling but we now find ourselves in difficulty as to what members who take points of order are to do in future if they are interjected upon by other members of Parliament contrary to your initial ruling. I seek your advice on that matter. 
Dail Jones 
: Madam Chairperson I have raised this issue before and it is appropriate to this case. The last time the Rt Hon Winston Peters was speaking just before 1 o’clock he was interrupted five times by National and ACT members. This time he got up to take a call and had barely started when he was interjected upon by a member Nick Smith who was at the Table. He had barely continued his speech when Gerry Brownlee interrupted him.  
Madam Chairperson Gerry Brownlee was on at least his fourth card from you today when he was finally sent out. He should not be allowed to vote on this legislation if this sort of thing continues. I ask you to get the National Party under control. They are leaderless in this House they are clearly a rabble and they should not be allowed to continue in this way. That is why we have disorder—[ 
Interruption 
] The member Ken Shirley is interjecting on me as I am speaking on a point of order. 
The CHAIRPERSON (Ann Hartley) 
: I warn members again about speaking during points of order. Mr Brownlee was warned several times to sit down. He never raised a point of order. He was being brought to order by the Chair. It was nothing to do with a point of order; that is why he was sent from the Chamber.  
I will also rule on Mr Jones’ contribution. I warn all members about interrupting members’ speeches with points of order that are not points of order. That was a debatable point. I warn members again about that. Dail Jones is quite correct in his point of order—that has happened throughout this debate. 
Hon Dr NICK SMITH (National—Nelson) 
: 
 I move  
That the Speaker be recalled. 
A party vote was called for on the question  
That the Speaker be recalled 
. 
Ayes 107 
New Zealand Labour 51; New Zealand National 27; Green Party 9; ACT New Zealand 8; United Future 8; Progressive 2; Maori Party 1; Independent: Awatere Huata. 
Noes 13 
New Zealand First 13. 
Motion agreed to and House resumed. 
Speaker Recalled 
The CHAIRPERSON (Ann Hartley) 
: Mr Speaker you have been recalled to rule on a matter regarding points of order and the Chairpersonship. I sent Mr Brownlee from the Chamber because of his continual disobedience of the Chair’s ruling. He had been asked to sit down several times. He raised a point of order that was not a point of order. He interrupted a member’s speech with a point of order that again was not a point of order and he continued to disobey my instruction to be seated. 
Hon Dr NICK SMITH (National—Nelson) 
: 
 The debate in respect of the bill has been contentious. The deputy leader of the National Party Gerry Brownlee raised a point of order. During the course of his point of order there was a whole series of quite loud interjections on which no action was taken. When Mr Brownlee eventually saw that the Chair was standing he resumed his seat. It seems to me that the action taken by the Chair of the Committee to eject the lead spokesperson for the National Party on a bill that is being considered under urgency is quite an extreme measure.  
I note that the speaker who was interrupted—which gave rise to this incident—was the leader of New Zealand First Winston Peters. I could list at least 10 instances in recent weeks in which Mr Peters himself raised points of order that were no more than political points that interrupted the flow of speeches or questions and you have tolerated those. I think that the judgment to exclude the deputy leader of the National Party our lead spokesperson is excessively harsh in the circumstances and that for that reason he should be allowed to return and continue to participate in this debate. 
Rt Hon WINSTON PETERS (Leader—NZ First) 
: 
 The true facts are these. In my last speech before the lunch break I was interrupted five times. In my latest speech I was interrupted three times in the first 20 seconds—once by Nick Smith who was standing at the Table and shouting a barrage of statements from there. I do not know what they meant but he was doing that and he knows it.  
Then a further point of order came from Mr Brownlee. There was no interruption of his point of order until having been asked—for the longest time that I think I can remember—by the Chair of the Committee to sit down he refused to do so. He just went on and on. The members on that side know it; we all saw it. At that point yes there was interruption from our side but Mr Brownlee invited it upon himself in an outrageous act of contempt towards the Chair. 
DARREN HUGHES (Junior Whip—Labour) 
: 
 Mr Speaker you have been recalled on the motion of Dr Nick Smith. With respect to the Rt Hon Winston Peters I do not think that the Chair took the action because it was Mr Peters speaking. All through the Committee stage on this bill Mr Brownlee has raised points of order—at least half a dozen that I can think of—that were not points of order; they were points of debate. They were not terse points of order either. The Chair had warned Mr Brownlee about that. Mr Brownlee saw that the Chair was on her feet calling for order. He turned his back on the Chair and started addressing New Zealand First members in a way that was clearly going to incite their response.  
The senior Opposition whip accepted the decision of the Chair to eject Mr Brownlee. The senior Opposition whip did say though that New Zealand First members should not have been interjecting on a point of order. That is probably correct. With no explanation to the Committee Dr Smith then took it upon himself to move that you be recalled. The Government supported that as is parliamentary convention but I am at a loss to know exactly what the National Party is opposing given that Mr Brownlee was warned several times. The Chair acted on that and I think the action she took was entirely appropriate. 
SIMON POWER (Senior Whip—National) 
: 
 I rise to add further to the explanation offered by the junior Government whip in respect of the incident currently before us. Mr Brownlee’s reaction to the comments made by New Zealand First interjectors came about from a series of interjections that were from my recollection directed towards Mr Brownlee prior to the Chair ruling on whether he had correctly raised a point of order in the terms laid out in the Standing Orders. It was those interjections that then created an unruly atmosphere in which Mr Brownlee strongly responded.  
Mr Speaker if you are ruling on conduct in the Chamber I would also urge you to make clear to the Committee what is expected when a point of order is initially taken and prior to the point where the Chair has ruled on whether it is a point of order that interjections are not allowed at that point as well. 
Hon RICHARD PREBBLE (ACT) 
: 
 Mr Speaker I think that we all know what your ruling has to be but I want to make the point to you that Mr Peters’ suggestions with regard to Mr Brownlee’s conduct are not fair. It is correct that before the lunch break he had three points of order but two of them were from me and the Chair upheld me both times. I will not go into what Mr Peters was saying but for him to suggest that Mr Brownlee was interrupting his speech is just not correct. Those points of order were raised by me. 
Having said that I do not quite know why you have been called back because obviously you have to support the Chair. But I suggest to you—and perhaps through you it will go back to the Chair—that it would be most unfortunate to have a debate on a major matter when the deputy leader of the National Party who has been the Opposition’s senior spokesperson on this matter and who was on the Fisheries and Other Sea-related Legislation Committee is not in the Chamber. My suggestion to the Chair is that perhaps after we have the vote on this part Mr Brownlee might return because without him we cannot hold a proper debate. 
Mr SPEAKER 
: I thank the member for his contribution nearly all of which I agree with absolutely except for the last point. Members make their own decisions on what they do and they have to live by the results of them. I was listening to the incident and I thought that the Chairperson was incredibly generous in allowing the member to continue four or five times when he would not sit down when she was on her feet.  
Members cannot challenge the Chair. It is a frivolous use of the right to move to recall the Speaker unless there is a genuine matter of order on which the Speaker can rule. Members cannot criticise the Chair. They can ask the Speaker to review an interpretation of the Standing Orders—that is what this procedure is all about. The Chair is the sole judge on matters of keeping order and the Speaker will not review such a decision. As far I am concerned I abhor the thought that when a presiding officer is ruling anybody else is interjecting. I heard it quite clearly. It was for that reason that the member was asked to leave and it was a decision that I absolutely uphold. I declare the House in Committee. 
In Committee 
Debate resumed. 
Part 2 Public foreshore and seabed  ( 
continued 
)  
Rt Hon WINSTON PETERS (Leader—NZ First) 
: 
 Can I start again? That is the fourth interruption. [ 
Interruption 
] 
Hon Dr Nick Smith 
: I raise a point of order Madam Chairperson. I just heard an interjection made by Mr Paul Swain in which he referred to the deputy leader of the National Party by using a totally unparliamentary phrase. I ask that he be asked to withdraw it. [ 
Interruption 
] Whoever it was directed at it was totally unparliamentary. 
The CHAIRPERSON (Ann Hartley) 
: The member will stand withdraw and apologise. 
Hon Paul Swain 
: I withdraw and apologise. 
Rt Hon WINSTON PETERS 
: Can I start again? 
Hon Bill English 
: I raise a point of order Madam Chairperson. This is with no reference to the member who wants to speak. Two things have happened at once. One was the use of unparliamentary language by Mr Swain and I presume your request for a withdrawal and an apology was for that. The other thing that occurred was that Mr Swain continued to talk while you were on your feet and dealing with the point of order. That is the matter that the Speaker has just backed up your previous ruling on and I suggest that you deal with that situation as well. 
The CHAIRPERSON (Ann Hartley) 
: The member has withdrawn and apologised. I would say to all members that during the time that I am speaking there must be silence. 
Rt Hon WINSTON PETERS 
: Can I start again? 
The CHAIRPERSON (Ann Hartley) 
: Yes. 
Rt Hon WINSTON PETERS 
: As I was saying before I was so rudely interrupted never has the National Party been such a mindless— 
Hon Ken Shirley 
: I raise a point of order Madam Chairperson. This is a procedural matter. When you said the member could start again does that mean he can start his content from the beginning or does the clock start again? 
The CHAIRPERSON (Ann Hartley) 
: It is at the Chairperson’s discretion to rule on that. I have ruled that the member will start again. 
Rt Hon WINSTON PETERS 
: After six interruptions I want to say that the National Party is a mindless leaderless rabble—and that demonstrates it. A famous American jurist said that it was an offence to cry fire in the theatre when there was no fire. Today and yesterday the National Party has been making all sorts of allegations and not one of them is remotely correct. Nick Smith of all people puts up a gate that is apparently underwater and it stops people from gaining access to the water. That is really appalling.  
I say to the Greens that for the first 6 years they were here in Parliament they had no Maori member. That is how much they thought of the Maori people and what occurs to me is that they still have not got one. Up got that member and she said that she wants to add an entrenchment clause to clause 12 “Public foreshore and seabed not to be alienated”—the non-alienation clause. That is illusory. It is a mirage and it is hallucinatory. It is ersatz law. It is Clayton’s legislation. It is placebo politics—that is what it is. It is the kind of thing that one has when one does not have anything. The Green member wants to have an entrenchment clause so she proposed an entrenchment clause to make it two-thirds or three-quarters of Parliament. Everybody will feel very safe will they not? All of Maoridom and all of New Zealand will feel very safe. She said that the area would not be able to be alienated if there was an entrenchment clause—except that any fool knows that one first of all attacks the entrenchment clause with a bare majority of Parliament which is 50 percent plus one. Out it goes and there goes one’s protection—it is all over in the space of an hour. That is the kind of assurance that she gives to Maori—those who are on the dope of course; the ones who are not working. But the Maori who think and work and who have slaved in this country for a long time will not be fooled by that. It is of no comfort to them whatsoever to argue for an entrenchment clause and I am ashamed to think that a lawyer would put it up as a proposal. 
Hon David Benson-Pope 
: Didn’t go to Otago. 
Rt Hon WINSTON PETERS 
: No I think she was at Waikato University. I could not help but comment when I saw the protest during the speech of the Hon Margaret Wilson that another European was flying a flag up there in protest in support of Maori. It is a sort of modern style of the white man’s burden in 2004. The sign that the protestor had stated: “Another colonial land grab.” So sea is now land and land is sea—members should try sailing on that! This country needs to be given better than that. It does not need to have stupid people out there misleading Maoridom or for that matter the rest of the country. The National Party is on one side scaremongering and making all sorts of allegations not one of which is true and on the other side are Maori radicals who are making extremist plans not one of which is true either. So where were they at lunchtime? I wanted those two groups of people—the Green Party and the Maori Party and the National Party—to get together because they cannot go on arguing around New Zealand. On the one hand National argues that Maori have everything and on the other hand the Maori Party says that they have nothing. We are bigger than that surely. Surely when we were at the battle of Monte Cassino not one veteran would have ever thought that we were dying for exclusive rights in our own country. That is the reality.  
I am sick and tired of Maori who have a record of selling land in their background coming along to those of us who do not and preaching to us about keeping our whenua and our rights to our property. It is an outrage that those people get away with it because there are journalists who know no better. It can only be out of ignorance that those people get so much coverage—because journalists do not understand their background. Well we are not taking it—not from them. New Zealand First is a party that produced six of 13 members of Parliament not because they are Maori or anything else but because we believe in one law for everyone. We believe in fair representation. We do not just talk about it; we do it—unlike the Green Party which could not find a Maori for 6 years and then found that member. I mean that is the point. Does she stand up for Maori? No. The most grievous thing that is upsetting the Maori people today is drugs and what does the Green Party have to say about drugs? Well the Greens are for them. They are for the legalisation of drugs. 
Hon KEN SHIRLEY (ACT) 
: 
 I will endeavour to bring this debate back to Part 2 which we are intended to be debating. Part 2 which includes clauses 6 to 27 concerns the rights of access. Clause 6 itself provides for a very qualified access and states that: “ ‘access rights’ means—” etc. but then it goes on to state in subclause (3) that: “The access rights conferred by subsection (2) may be exercised subject to any authorised limits including prohibitions on access that are imposed by or under an enactment including a notice in the  
Gazette 
” issued under these provisions.  
So what we have is the illusion of access. Of course that is what the Labour Government has been selling this legislation on. It has been saying that it is all about certainty and access. There is no certainty there is a lot of uncertainty and access is not guaranteed.  
Again the new clause 7A “Existing fishing rights preserved” provides that: “Nothing in this Act affects any rights of fishing recognised immediately before the commencement of this section …”. But as every Kiwi knows it is not just the action of fishing; one has to gain access to one’s fishing spot. If one cannot get on to the beach because a wahi tapu has been declared or one cannot go to a particular rock then one cannot fish. So access is denied and it is quite wrong to imply in clause 7A that all existing fishing rights are preserved because they are not. Under this bill they are not preserved. 
On the front page of this morning’s  
New Zealand Herald 
 the Labour Maori caucus tells us that up to 10 percent of the coastline—and that is just their first bid—will be in those foreshore and seabed reserves with committees of guardians and wardens guarding spiritual beliefs on our foreshore and seabed. Who believes for a moment that ordinary New Zealanders will have unrestricted access to go fishing in their preferred spot under that sort of regime? They will certainly not and 10 percent is just the first bid on day one. 
We then turn to clause 13C which states that all lands reclaimed are to be vested in the Crown. I would like the Minister in the chair to tell us the logic of that. Land is reclaimed for only one purpose and let us be quite clear that there is a very difficult statutory process to go through to get permission to reclaim land. One does not get it just like that. One would have to apply for a resource consent and get all sorts of dispensations. It takes several years and some people take up to 10 years to get consent to do a reclamation. So one runs the gauntlet. Reclamation is done for a specific purpose whether permission is sought for a marina for a port company or for some other legitimate use. But once reclamation has been approved it is land. So why henceforth vest that title in the Crown? What is the point of that? There is just no sense in it at all.  
Equally I would like to see our port companies with their own clear title. They are commercial businesses. As a trading nation they are the access to our nation for our imports and also the exit point for our exports. We want good commercial businesses running our ports. We do not want them run by the Department of Conservation but that is really what this bill is proposing. Of course the Greens were arguing that we should have free access round our ports. What a load of nonsense! We would be in breach of international covenants following 9/11 where we must specifically exclude free access and fence our ports so that we can guarantee the security of our containers.  
So there are very good commercial reasons why we need clear title clear property rights and to be able to exclude access in the foreshore and seabed for specific areas. But no this legislation states that it will all be vested in the Crown and that the Department of Conservation can look after that. What absolute nonsense! So it is not just Maori rights that have been trampled here. There are other clear commercial property rights that are being denied and stripped away.  
I would also like the Minister in the chair to explain the bit about accretion because it is not clear what the intention is there.  
JOHN CARTER (National—Northland) 
: 
 I want the Committee to reflect on this. The Minister in charge of the bill Michael Cullen has said that this is a very simple issue. He said that members should read clause 11(1) and he quoted part of it which provides that: “the full legal and beneficial ownership of the public foreshore and seabed is vested in the Crown …”. The Minister said: “It’s as simple as that folks. That’s what we are doing here today.” Winston Peters then got on to his feet and said: “We have saved the country. We have brought everybody together and what we have done is we have vested the foreshore and seabed in the Crown.”  
Well I ask Parliament and the people who are listening to this debate today to reflect on this: if it is that simple and takes just those few words then why are we dealing with a bill that was initially 69 pages another 67 pages of a Supplementary Order Paper another eight pages of another Supplementary Order Paper some notes that go for 138 pages and then also some explanatory notes that take up a further 59 pages? Why does it take that much paper that many words that many clauses and that many issues in order to vest the foreshore and seabed in the people? If it were just that simple I would have thought it would be only one clause.  
The problem we have is that again this Parliament is doing to itself and the country what it never should have done. It has written a whole lot of legal jargon to put in place something that is simple but will become so complicated that we will spend years and years unravelling what this Government the Labour Party and New Zealand First are doing to this country today. I say to the people to look at this legislation and at all the clauses in this bill and worry about how complicated it is. The bill is seriously complicated and divisive.  
It is not just a simple vesting of the foreshore and seabed in the people. If it were only that we certainly would not be here today opposing this bill. It is all the add-ons and the hidden stuff in the Supplementary Order Papers—the 67 pages of add-ons that have come back from the Fisheries and Other Sea-related Legislation Committee—that the Labour Party Winston Peters and New Zealand First are foisting on this country that we need to be worried about today. They have created such a complicated law around such a simple issue that we will be fighting this all over the place—in the courts out in the public in the pubs and on the beaches—for years to come.  
Let me say this to my colleague from the north Dover Samuels. He knows—as I do—that there are already some people up in the north who want to exclude people from the beaches. Already we have seen it happen and I bet members and wager that this summer there will be more instances where non-Maori people are excluded from the beaches because— 
Dr Wayne Mapp 
: Karikari. 
JOHN CARTER 
: At Karikari Peninsula it is happening right now. White people—non-Maori people—cannot drive up to Karikari Peninsula. They are excluded from it. It is a public beach and they are not able to go on it. They are shunted off bullied off and railroaded off. Believe me that will happen more and more as this issue starts getting debated over Christmas and as Maori people’s expectations start getting more and more heightened. When they look at this bill they know that the Government is giving them something extra over and above non-Maori.  
 I say to the public to the Labour Party particularly and to Winston Peters and his caucus that they should not be doing this to New Zealand. It is wrong. I know a number of the New Zealand First members will have genuinely tried to get it right. I accept that. Unfortunately they have missed the bus they will cause strife across the country and they will cause us to have issues whereby non-Maori people will be excluded from their luxuries. 
Hon DOVER SAMUELS (Minister of State) 
: 
 I heard my name mentioned by my colleague John Carter in terms of some of his concerns that perhaps somebody foolishly would seek to block access to the beaches when in fact public access is provided for. He knows very well that if there is public access to the beach anybody who blocks that access breaks the law and could be in the case of Northland one of the first invitees to the Ngawha prison. Let me make it quite clear. This bill provides for public access for all New Zealanders Maori Pakeha or whoever to go down to the beach at Christmas time with their families and do the things they have been doing for the last 140 years. That member knows that if there is public access then any clown—and I have a few of them up there in Northland—who wants to block public access to the beach will be removed by the police as they should be. I warn them of that. My colleague John Carter used to be the clerk of the Hokianga County Council and we go back a long way in terms of by-laws. We know that if anybody blocks access along a public road it will be pokarekare ana for them. 
I want to bring up a couple of things. Ken Shirley talked about 10 percent. I am glad he knows his figures. I say to Mr Shirley that determination of territorial customary rights will be done by the High Court. The High Court will determine whether a Maori whanau or hapu is entitled to an aboriginal title that may reflect territorial customary rights and the negotiations that go on from there are spelt out in terms of the redress in the bill. It is not for anyone to say whether they will get 10 percent five percent or two percent.  
Hon Dr Nick Smith 
: What do you say about this in the newspapers? 
Hon DOVER SAMUELS 
: Perhaps the member should read the births and deaths column instead of reading the front page. He might understand a little bit more. There is a births and deaths column on the back page of the  
New Zealand Herald 
. He should read that and he will find out a little bit more; he will be educated. 
Members of the National Party who have been defrosted on coming out of the mortuary always froth a bit at the mouth when it comes to things to do with Maori especially when it is to do with recognition of Maori customary rights. All of a sudden their gums begin to froth up. Some people begin to defrost and some do not; some are probably there forever. 
When one is talking about Maori customary rights one is actually recognising a covenant—something that has been recognised right around the country. Members are jumping up and down and I hear members of the Green Party complaining about thresholds and benchmarks in terms of being able to obtain a customary rights order. I tell them that the issue is one that relates to whanau and hapu who have had a traditional and customary relationship with the foreshore and seabed for a long long time. It does not relate to Maori who have been sleeping under the marijuana plants and smoking a bit of hooch and who do not know what they are talking about.  
Metiria Turei 
: I raise a point of order Mr Chairperson— 
Hon DOVER SAMUELS 
: I am not referring to anybody in this Chamber. 
Metiria Turei 
: I take personal offence to the reference about people sleeping under marijuana trees which was a reference to the Greens. I ask that the member be required to withdraw and apologise for that unnecessary and very derogatory slur both against us and against those who may be homeless and sleeping under trees. It shows his clear disregard for the people of this country. 
The CHAIRPERSON (Hon Clem Simich) 
: I thank the member for raising that. I did not take it that that was a reference to anyone in the Chamber or to any group in the Chamber. 
Hon DOVER SAMUELS 
: I can assure the member that if I had referred to the Greens it would have been clear. I was not referring to the Greens. If they have a conscience about that it is their problem. 
Those who live beside the sea have a genuine right of application to the Maori Land Court and the High Court to have their territorial customary rights recognised. Someone living in Australia who has become Ngati Ranana—“Ngati Australian”—has no right at all. They have no basis for rights. I make that point loud and clear. Those rights are not de facto territorial customary rights. There are people who are genuine the whanau and the hapu who have held those customary rights mai ra ano. They have to be given opportunities under this legislation—and the opportunities are there. 
The legislation gives access and that is not only to the Maori Land Court. I hear some of these bush lawyers saying that there is no judicial process open to Maori. What is the Maori Land Court? That is part of the judicial process. Genuine people have to be given access not just to the Maori Land Court but also to the High Court. They also have that avenue for obtaining territorial customary rights. 
I say again to those who think they can go along with a bus ticket and get a territorial customary rights order to forget it. People have to be genuine; they have to have ties to the land. There are benchmarks and thresholds they have to prove and if they prove them they will get their territorial customary rights. 
Hon GEORGINA TE HEUHEU (National) 
: 
 This debate is on Part 2—which is something we may or may not know from the rhetoric coming from on the other side of the Chamber—and it deals with rights of access. First I will comment on something that Russell Fairbrother said earlier in the day. He said that everybody believed that the foreshore and seabed was vested in the Crown. I do not know whether a significant number of Maori would support him on that contention because their reaction to the Government’s response to the Court of Appeal decision suggests they had always thought otherwise. However as I have said this part deals with rights of access and it is the part in which the minority Labour Government and New Zealand First are trying to convince New Zealanders that their rights to our beaches are confirmed now and into the future. I ask the Hon Dover Samuels whether that will apply to the beach up at Matauri Bay and the Rt Hon Winston Peters whether it also applies to his beach at Whananaki. Perhaps those members will give their answer in their contributions further along the way.  
As I said yesterday the Government cannot have this both ways. It cannot on the one hand say to Maori people that they should not worry and that their mana is protected then on the other hand say to all other New Zealanders that their access to beaches will be free and unimpeded. That cannot hold. That is not a sustainable proposition. If it is then I would like Mr Peters to explain—because I do not think the Minister in the chair the Hon Paul Swain will tell me—how that position or postulation can be sustained. I do not see how it can be. As further evidence of that— 
Rt Hon Winston Peters 
: What about Lake Taupo? 
Hon GEORGINA TE HEUHEU 
: Everybody can go to the beach. The bed is vested in Tuwharetoa but everybody has access to the beach. There is no problem whatsoever. But we are not talking about Taupo we are talking about Whananaki and Matauri Bay.  
However I do have a question that revolves round the assurance that the access that the Government and New Zealand First are trying to give New Zealanders will be unimpeded. I ask how that lines up with new clause 115A set out on Supplementary Order Paper 302—a clause that I think could equally be called the “Tainui clause”. It states: “(1) To avoid doubt nothing in this Act (a) limits or otherwise affects the validity of an agreement entered into between the Crown and a claimant group to settle an historical Treaty of Waitangi claim; or (b) fetters the ability of the Crown to enter into any agreement with a claimant group in the future to settle an historical Treaty of Waitangi claim.”  
In new clause 2A “Object” the Government is saying to New Zealanders that they should not worry and everything will be OK mate. Clause 6 states something similar and new clause 12 states: “(1) Despite any enactment to the contrary no part of the public foreshore and seabed may be alienated or otherwise disposed of.” What do those provisions mean in the context of new clause 115A? On the face of it it looks from this clause as though there are instances where the foreshore and seabed will be disposed of and will be disposed of in this instance in pursuance of the settlement of claims. That in itself may be OK but it shows the cynicism of this Government and of New Zealand First when they say: “Everything will be OK mate.” What is it Mr Peters says? “We fixed it.”? Is that what he says? Well actually it has not been fixed. When the Court of Appeal decision came out the public reaction was that it expects the foreshore and the seabed to be vested in the Crown. 
NANAIA MAHUTA (Labour—Tainui) 
: 
 All I can say to the member preceding me is that she should read the fine print. If she goes on to read clause 6 “Right of access” she will see the specified limits in new subclauses (3) and (4). She has raised a whole lot of issues about hidden secret access agreements. The limits are not secret. They are upfront in those subclauses. If she reads the clause she will see that access is granted to all New Zealanders to be able to go to the beaches. However the fine print in the subclauses sets out justified limitations in terms of that access. So it is no secret. It is right there in the bill. Clauses 6 and 7 are really the points of agreement that all New Zealanders Maori and Pakeha came to: that we should all have access to our beaches and that navigational rights should be protected. That is what clauses 6 and 7 are about.  
One of the members spoke earlier about new clause 7A “Existing fishing rights preserved”. The point about new clause 7A is that it makes it absolutely clear that all the issues concerning fish under other bits of legislation still stand. Nothing in this bill affects that.  
The substantial part of my small contribution on this part relates to clause 11—and the point was made by John Carter under subclause (1). Clause 11 is the clause that for many submitters provided a bit of tension. It is worth reading out: “On and from the commencement of this Act the full legal and beneficial ownership of the public foreshore and seabed is vested in the Crown so that the public foreshore and seabed is held by the Crown as its absolute property.” The submissions contain views that this should not be the case. However again—I made the point earlier in the debate——the natural extension of that argument is that the Crown would not be able to uphold any fiduciary obligation to any citizen in New Zealand including Maori. It follows therefore that this is a necessary part.  
This is not the first time Parliament has addressed the issue. In fact in the first reading debate Dail Jones raised the issue that the Foreshore and Seabed Endowment Revesting Act actually attempted to do this but it did not do it properly. He said at the time that no Maori member participated in that debate. I went through the contributions referring also to the submissions on the bill. Notably three Maori groups made a submission on the Foreshore and Seabed Endowment Revesting Bill: the New Zealand Maori Council Awaroa ki Manuka and the Huakina Development Trust. All the submissions from those Maori groups actually agreed with Crown ownership. However they said that then sets up the opportunity for Maori to legitimately argue their treaty claims or treaty issues. There was some reflection in their submissions on the hope that at some point an opportunity would arise whereby the Government would recognise their customary interests in full and see the return perhaps of parts of their tribal domain where they exercised their customary interests. Notably Awaroa ki Manuka and the Huakina Development Trust raised those types of issues.  
So clause 11 is an important clause. It is probably the most lucid part of this bill. We all need to be clear about why there is provision for other parts in recognition of customary rights. Basically subclauses (2) and (3) make it important to ensure that if one is going to have full legal and beneficial ownership in the Crown one must make provision for Maori customary rights. It has long been my view that vesting ownership in the Crown would enable the radical title of the Crown to coexist with a native customary title in accordance with tikanga Maori. That has long been my view. Since this debate has emerged my thinking on that has developed further. This part contains a number of important clauses that affect Maori  
In finishing my small contribution I refer to new clause 12 “Public foreshore and seabed not to be alienated”. I think that is a clear affirmation of the Government’s intent and it is a good part of the legislation. 
METIRIA TUREI (Green) 
: 
 The Greens have proposed two major amendments to Part 2 the first being to clause 12 the entrenchment clause. New Zealand First will not be supporting this clause because it is not that concerned with the potential sale of land—in particular the sale of seabed and foreshore land. One of the criticisms that Winston Peters has made of the entrenchment clause is that it will not have any effect. I say to him that it may be that entrenchment is largely symbolic in the minds of New Zealanders—that it is a symbolic gesture showing that this Parliament takes the restriction on the sale of foreshore land seriously and that it is prepared to use all its mechanisms to make sure that it cannot happen. I have no doubt that we cannot stop a Government in the future from doing whatever it wants but even if at worst it is a symbolic gesture it is critical for New Zealanders to know that this Parliament will not sell-on any of the foreshore and seabed. New Zealand First’s refusal to support this clause clearly demonstrates that it is not prepared to support even a symbolic act that will enable New Zealanders to feel confident that this Parliament including New Zealand First does not want the foreshore and seabed to go into foreign ownership.  
The Greens of course have been very clear to follow their principle with practice. We have petitions in place at this very moment to stop the sale of land to foreign interests because we believe that our land is finite and that it needs to be protected and kept in New Zealand hands for New Zealand people. This entrenchment clause will make that clear to the public of New Zealand. Clearly New Zealand First is simply not prepared to put its money where its mouth is and support the absolutely best possible protection that this Parliament can provide in order to make sure that our foreshore and seabed cannot go into private hands.  
The other major amendment we are proposing is to clause 28. Margaret Wilson said that the contiguous land test in clause 28 is when one can get a territorial customary rights order only if one has ownership of the land that borders the foreshore and seabed as is part of the common law. She knows she is wrong about that. It is not in the common law. Paul McHugh who gave evidence for the Crown at the Waitangi Tribunal said at the Fisheries and Other Sea-related Legislation Committee that it is something the court should take into account and that it is a consideration it will have regard to but that it is not necessary to make it a condition of providing a territorial customary rights order. He never said at all in the select committee that it was part of the common law. He never said it was absolute that one had to own the land bordering the foreshore and seabed before one could make a claim of customary exclusive use and possession over the foreshore and seabed itself.  
This provision is a clear deception. It is not right that it is in this bill; it is absolutely unnecessary. This bill could make the court give consideration to contiguous land ownership. It does not need to make it a condition. Making it a condition means that very few—perhaps two or three—iwi throughout this whole country will be able to get a territorial customary rights order. It will be virtually impossible for iwi whanau and hapu across this country to meet those tests because they are so stringent and unnecessary. It is unbelievable that that clause could have been put forward by Dail Jones who himself has some legal knowledge who heard and understood the submissions from Paul McHugh in the select committee and who recognised that contiguous land ownership might be a factor to take into account but that it certainly should not and did not have to be an absolute.  
There is a whole list of other real problems with the way that clause 28 has been reconstructed after the negotiations between Labour and New Zealand First. The real difficulty is around the proof needed to show that one can exclude others and could exclude others. It was argued in the select committee as well that one did not need proof that one did exclude people but proof that one had the right to exclude. Those are two different things. We live in a colonised land. Maori will find it extremely difficult to show that they have had any control over other people using their land—particularly the foreshore and seabed—over time when the whole of the country has been under the misapprehension that it has been open ground owned by the Crown for so long. 
SANDRA GOUDIE (National—Coromandel) 
: 
 In listening to the debate— 
Larry Baldock 
: I raise a point of order Mr Chairperson. I just respectfully point out that this debate is a bit like watching a ping-pong game with the calls going from one side of the Chamber to the other and back. As a member of the Fisheries and Other Sea-related Legislation Committee—and I also represent our party which is small in number—I do want to make a number of calls on this important part of the bill. I would just ask for your consideration in that. 
The CHAIRPERSON (Hon Clem Simich) 
: I am quite aware of that. Proportionately if I had called the member United Future would have been way ahead of any other party. The member’s time will come. 
Ron Mark 
: I raise a point of order Mr Chairperson. I thought I would take this point of order now so that I would not interrupt the member’s speech. I also respectfully inform you that some members who have been seeking the call have not had the opportunity to speak on this bill at all yet other members have had numerous calls. 
The CHAIRPERSON (Hon Clem Simich) 
: I am quite aware of that. I thank the member for raising it. There will be opportunities to seek the call. Just to put the member in the picture if I had taken his call then I would have needed to give National the next five calls. 
SANDRA GOUDIE 
: I was in my office listening to the debate and I was very interested in the comments raised by the Hon Georgina Te Heuheu my very esteemed colleague. I also raise the points she referred to about access and of course I endorse the comments made by the honourable John Carter. If this was simply a matter of the Crown preserving the right of access of all New Zealanders then why is there so much paper and so many clauses? We have so much to contend with. This legislation is not simple. I find it incredible that the Government with the support of New Zealand First is trying to whitewash the New Zealand public into thinking that this legislation is simple when it certainly is not.  
There is absolutely no way that access is guaranteed through this bill. I ask members to look at new clause 115A and then refer that back to clause 6 “Rights of access”. I recall Nanaia Mahuta saying we should read the fine print. Well have I read the fine print. Clause 6(4) states: “Unless the enactment or other instrument that authorises a limit of the kind described in subsection (3) otherwise provides the limit may be applied—”. So I would strongly recommend that those guys read the fine print. If we relate that to new clause 115A “Status of existing and future agreements between Crown and claimant groups” we find there is every chance that so-called Maori reserve areas in the foreshore and seabed can accrue freehold title and access can be denied. I take great exception to the New Zealand public being misled on that score. That is an absolute tragedy when the New Zealand public relies on this Parliament to have representation. I absolutely abhor that.  
The New Zealand public relies on this Parliament to represent its interests. There is also the Waitangi Tribunal to represent the interests of some other members of the New Zealand public called Maori but New Zealanders generally do not have the opportunity to take their grievances to the Waitangi Tribunal. They are denied that opportunity so where else would they go for the settlement of the grievances that are established? The foreshore and the seabed has been vested in the Crown since the 1890s and that is the understanding that many New Zealanders have had—that that has been their common law right established for over 100 years and that access is part of their common law right to the foreshore and seabed. So who is actually representing their right? I absolutely abhor the way that this Government supported by New Zealand First thinks it represents the rights of all New Zealanders. In my view this bill quite categorically does not do that. If members do refer to clause 6(4) they will see that access can be denied once any other interest for Maori has been established over special reserves made under new clause 115A. The Government needs to look very very closely at that.  
Even with regard to access the precedent given to Maori in legislation is chronically out of control in this country. That is an absolute disgrace to the representation that this Parliament is supposed to provide to the New Zealanders of this great nation. Certainly they are not getting that representation here today from either the Government or New Zealand First. That is a disgrace. I have had family who have been fishing off the beaches and who have been jostled by people who think that they have a greater claim to this country than my family has in spite of the many many generations of our presence here in this country.  
Once again I reiterate that this bill is an absolute disgrace. We are meant to be protecting New Zealanders’ rights in respect of the foreshore and seabed and this legislation in no way does that in spite of all the work and all the claims made by the Government supported by New Zealand First. Then on top of that to add insult to injury after reading the document we have a substantial Supplementary Order Paper tabled that no one had previously seen. 
LARRY BALDOCK (United Future) 
: 
 Thank you Mr Chairperson. I appreciate your understanding. Perhaps I was a little hasty in taking a point of order earlier. However this is an important debate and I am keen to make a contribution on behalf of United Future. In my last call I was making concluding remarks about— 
Rt Hon Winston Peters 
: I raise a point of order Mr Chairperson. I apologise to Larry Baldock for interrupting him but my point is this. Mr Baldock is voting against the legislation and so was the last speaker. On the breakdown of the speaking time that is going this way I point out that one side will get far more time than the other side and that is not fair. I thought the debate went from the pro argument to the anti argument. There are plenty of people on the pro side. We are not short of people to speak for the bill. 
The CHAIRPERSON (Hon Clem Simich) 
: I thank the member for raising that. 
LARRY BALDOCK 
: Speaking to the point of order Mr Chairperson— 
The CHAIRPERSON (Hon Clem Simich) 
: No I do not need any assistance on that. Quite frankly I cannot read people’s minds as to whether they are pro or against this legislation. They may change their minds during the course of this Committee. 
Hon Richard Prebble 
: I raise a point of order Mr Chairperson. I do want to draw your attention to this disturbing fact. Prior to the last call you drew it to our attention that if you had called Mr Baldock that would have meant that the United Future party was getting more calls than any other party. Presumably that is now the situation. I just say—without criticising people who are not here—to those members who are in the Chamber that one can tell the amount of attention the United Future party gives to this matter by the fact that Mr Baldock is the only member of that party who is here. The ACT party has nearly half its membership here in the Chamber. We have a member who has been calling right since this matter started who has an amendment down—she has taken sufficient care about this matter to put an amendment down. Yet Deborah Coddington has been unable to get a call. In fairness to Mr Baldock and in reply to Mr Peters I note the United Future party has voted both for and against this legislation as it has on other matters. We now learn that Mr Baldock even though he is the only representative of the United Future party here in the Chamber has the call. Why should he be entitled to extra calls just because he complained? When you are looking around the Chamber for members who are calling I hope you will bear in mind the fact that Deborah Coddington has put an amendment down has gone for the call and has not had a call. I hope that will be taken into consideration. 
The CHAIRPERSON (Hon Clem Simich) 
: I thank the member for raising that. I will certainly give those matters consideration. 
LARRY BALDOCK 
: We were discussing the issue of entrenchment which is part of the amendment I have on the Table and which has been dismissed by some members of the Committee as being irrelevant or only symbolic. That may be the case in terms of single entrenchment but I ask the Rt Hon Winston Peters to look more seriously at the amendment that provides for double entrenchment which would make it impossible to alter the clause 12 provision by a simple majority. If his party and other members of the Committee supported that a clear signal would be sent and the measure would be more than just symbolic in terms of making it more difficult for future Parliaments to alienate the foreshore and seabed. I appreciated Metiria Turei’s offer to support my amendment if I reciprocated by supporting hers but I am sorry to disappoint her by not being able to do that. One of the reasons we want the entrenchment provision is to ensure there is no opportunity to transfer title of the foreshore and seabed as part of any treaty settlement. We believe that the area ought to remain in the ownership of the Crown for and on behalf of all New Zealanders as we discussed earlier.  
That brings me to clause 15 which gives the Crown the right to “purchase or otherwise acquire the whole or part of a specified freehold interest in any land that is wholly or partly within the foreshore and seabed.” This is something that I believe many New Zealanders are concerned about because we as a country do not take to double standards very easily. Although there has been an intervention by the Government to ensure that there is no future alienation of the foreshore and seabed we all know that there are parcels of land in private title that involve the foreshore of our coastline. I want to read from the Land Information New Zealand report that was given to the Minister for Land Information in December just to put on the record of our debate how many parcels of land are involved and in whose ownership they are. If the report is correct there are 16 parcels in total that are surveyed to below the mean high-water mark. Eleven of those parcels are general land and five parcels are Maori land. There are 32 parcels of seabed in private title that are covered by the sea. Of those 27 parcels are general seabed parcels and five parcels are Maori-owned seabed parcels. There are 12243 parcels surveyed to the mean high-water mark 9403 of which are general land parcels and 2840 Maori land parcels.  
What is important I believe is that the Government is silent about what steps it will take to recover those parts of the foreshore that are in private title. The bill clearly gives it the power to do so but United Future would have been much more encouraged to hear from the Government a strategy it would engage in to recover those titles. We firmly believe that once those titles have been issued they are property rights and there should be no confiscation without compensation. We believe that negotiation needs to be undertaken between the Government and private property owners who now have title that goes into the foreshore. But we would like to know how that would be done so that in the near future New Zealanders can have the satisfaction of knowing that the public foreshore and seabed encompasses the complete coastline of our country and that there is no inconsistency and injustice whereby some people hold a title simply because they got it through erosion in the past because the survey marks were not accurately done in the beginning or because under different legislation 50 to 100 years ago they were able to secure a title that they would not be able to acquire today. That is an issue I would like the Minister to take a call on so that he can give us an understanding of what the Government plans to do—because it is of interest. Many many submitters came before the Fisheries and Other Sea-related Legislation Committee and complained about the inconsistency and the seeming injustice of some people being allowed to own freehold title to the foreshore and seabed while in the future others will be denied that opportunity.  
When it comes to local government holding freehold title the Crown makes it very clear that it will simply take that. I am pleased to see that the Minister’s amendment will now allow not just relief for that but redress. It is acceptable that if a title is in the foreshore area that area would simply become Crown-owned under the legislation because it is the foreshore. But it is unclear to me—and I ask the Minister to explain this to us all—what the case is with regard to reclaimed land that is not yet in title. 
DEBORAH CODDINGTON (ACT) 
: 
 We have come to a pretty pass when territorial customary rights are referred to as “TCRs”. What an insult it is to reduce them to what is not even an acronym. Winston Peters should get his quotes right. The American jurist did not say it was an offence to shout “Fire!” in a crowded theatre; he said that freedom of speech does not mean one can shout “Fire!” in a crowded theatre. 
When we look at new clause 9A we see that this is very much racist legislation. It directs that when customary rights claims are lodged in the High Court the High Court is to take only one of three courses of action—that is kill all the claims. We know that all of those 80 cases are Maori cases.  
I now refer to the Minister’s amendment on Supplementary Order Paper 302 to clause 15 “Extension of public foreshore and seabed by acquisition of land in private title” and say that I have tabled an amendment to this amendment. The Minister’s amendment omits subclause (1) and substitutes a new subclause (1) which states: “The Crown may purchase or otherwise acquire the whole or part of a specified freehold interest in any land that is wholly or partly within the foreshore and seabed.” My amendment adds the words “by agreement” after the word “acquire”.  
As the Minister’s amendment stands at the moment this is simply a land grab. We do not know what it means. No agreement is stated. It means that the Government can go out and just take whatever it likes. It does not state that it would do that under the Public Works Act; it just states “or otherwise acquire”. No mention is made of compensation.  
If we look at the situation we see that this provision has been drawn up by people who have never studied lived or been by the foreshore for any number of years. If they had they would see that the foreshore—the land between the high-water mark and the low-water mark—does change over the years. It goes up and it goes down. Sometimes the change is very dramatic such as in the case of the Napier earthquake. If we look at the Napier airport we see that hectares and hectares of land were created by the sea retreating. Under this legislation that land could be privately owned. But as the legislation is worded at the moment the Government would be able to acquire that land without paying any compensation at all.  
Where I live in the Marlborough Sounds the foreshore area changes considerably not just from decade to decade but from year to year. New land is created not by reclamation but by the shifting of the tides and by the foreshore changing every year. The way the legislation is worded at the moment gives the Government the right to go and just take it away.  
It concerns me that this clause is a sweetener to further land grabs. My colleague the Hon Ken Shirley had a slip of the tongue when he referred to the Department of Conservation as the “Department of Confiscation”. It was more than just a Freudian slip. As I said it concerns me that this clause is a sweetener to a further land grab. First it is the foreshore and seabed. What will be next? Will it be the riverbeds? Will the Government be able to just acquire freehold title of private land without there being any compensation at all? The Minister is shaking his head. Does that mean he will agree to my amendment? Does it mean he will get up and explain what this clause means? The way it is drafted at the moment shows that it is clearly just a land grab and it is a way for the Crown the Government to just go in and take whatever it likes—not just from Maori but from all New Zealanders. All New Zealanders will be disadvantaged by this clause. As I said I would like the Minister to take a call and explain what he means. He is indicating that he might. Is that a yes or is it a no? 
Hon Dr Michael Cullen 
: It’s Delphic. 
DEBORAH CODDINGTON 
: It is Delphic. 
Hon Richard Prebble 
: He doesn’t know himself. 
DEBORAH CODDINGTON 
: Well maybe he will support the amendment I have tabled. 
RON MARK (NZ First) 
: 
 Is this it? It is all over. The debate on the Opposition side of the Chamber has died. If we listen to the arguments from National members now we hear them say they are so concerned about the bill that their biggest objection is that it has too many pages has too many words and is hard to read. That is the truth. The essence of the objection to this bill by Sandra Goudie and John Carter was that the bill has too many words—it is too long—and that they do not understand it. Gerry Brownlee got it right. He was smart. He could see National was going nowhere. How could he argue against Crown ownership? Sandra Goudie said she would vote against the bill because it puts the area into Crown ownership and she has always believed it was in Crown ownership—therefore she will vote against it. Does that make sense? It does not make sense. But no the National members are to vote against this legislation.  
Hon Dr Nick Smith 
: What about these new foreshore reserves? 
RON MARK 
: I will get to Nick Smith in a minute because there is a beauty in two-talk. Sandra Goudie is voting against the bill because it puts the foreshore and seabed in Crown ownership and she has always believed it was in Crown ownership. But now that this legislation puts it there she is voting against it because she had always thought it was there. I am confused; so is she. Gerry Brownlee could see the writing on the wall so he deliberately got himself thrown out of the Chamber.  
I come back to the arguments that were put up. Nick Smith is really good on the access clause. He is the same Nick Smith who was on television over the Christmas period bleating on about Maori locking a gate and stopping people from going across their own land in order to go fishing. Excuse me? It seems to me that the National Party which reveres the philosophy of one law for all wants one law for all—except when Maori get in the way. Nick Smith now wants access across everybody’s private land. But what does David Carter say? He is out there saying that the “freedom to roam” bill is an intrusion on property rights and that farmers like him will not stand for it. I guess that means farmers like him will not stand for it unless those brown fellas get in the way and then they will stand for it. Nick Smith says that every Maori should open the gate on his or her private property to give access across that land to the foreshore. 
Hon Dr Nick Smith 
: On the foreshore! 
RON MARK 
: Mr Smith is very confused and we have all known that for quite some time. 
Hon Dr Nick Smith 
: Point of order— 
RON MARK 
: He always does it. When we hit him he takes a point of order. 
Hon Dr Nick Smith 
: I seek leave to table a document showing the gate on the foreshore at Wakapuaka estuary so that I can solve the member’s confusion. 
The CHAIRPERSON (Hon Clem Simich) 
: The member can seek leave for that but he should not interrupt the member’s speech to do so.  
Rt Hon Winston Peters 
: I raise a point of order Mr Chairperson. This is a disgraceful further interruption by a member who frankly should go away and take a pill. 
The CHAIRPERSON (Hon Clem Simich) 
: We will not have any of that. I have noted it. The member would have been pleased with the way— 
Dr Wayne Mapp 
: Point of order— 
The CHAIRPERSON (Hon Clem Simich) 
: Is this a new point of order Dr Mapp? 
Dr Wayne Mapp 
: Yes it is a new point of order Mr Chairperson. There was an imputation and a reflection in what was said to be a point of order that was completely out of order. Frankly I take offence at that kind of implication about members. It is outrageous that points of order are used as a means of abuse and division.  
The CHAIRPERSON (Hon Clem Simich) 
: It did not pass by me. I thank Dr Mapp. 
Rt Hon Winston Peters 
: I will withdraw and apologise but let me tell the Committee that the National Party did that last night. I warn the National members that if they do that one more time I will nail one of them—not physically; verbally. They have one last chance. They are being too smart.  
Hon Dr Nick Smith 
: Just take another bribe Winston. 
Rt Hon Winston Peters 
: I raise a point of order Mr Chairperson. I will not withdraw this one. The member has just made an allegation. He said: “Just take another bribe Winston.” The member should withdraw and apologise and if he does not do that he should be thrown out of the Chamber.  
Hon Dr Nick Smith 
: The Committee will be aware that in court proceedings between Mr Winston Peters and my colleague Mr Carter on this very issue Winston Peters was cleaned out. He lost and the case was thrown out. I cannot see how the interjection in respect of Mr Simunovich and the allegations of him receiving a large amount of money in an envelope is in any way different from the interjections that Mr Peters has made.  
The CHAIRPERSON (Hon Clem Simich) 
: That is not a point of order. What was the matter that you raised before Mr Peters? 
Rt Hon Winston Peters 
: He accused me of taking a bribe. He has now compounded that by saying that I was cleaned out in court. That of course is not true. My lawyer was invited by the judge to set up a new chain of pleadings. That is the fact and every lawyer knows it—and the member should take a pill.  
The CHAIRPERSON (Hon Clem Simich) 
: You have already apologised for that Mr Peters. If that is what Dr Smith said and if that implication was in respect of Mr Peters I ask him to withdraw please. 
Hon Dr Nick Smith 
: I withdraw just to be kind.  
Hon Dr Michael Cullen 
: I raise a point of order Mr Chairperson. It is not good enough to withdraw and then to add further words afterwards. It really is time for members to withdraw and apologise properly and to move on. This is not doing the Committee any good at all.  
The CHAIRPERSON (Hon Clem Simich) 
: I thank Dr Cullen and I ask the member to do a succinct withdrawal. 
Hon Dr Nick Smith 
: I withdraw. 
RON MARK 
: New Zealand First said it would fix this issue. Our leader the Rt Hon Winston Peters said right at the start of this debate that at the end of the day the situation will be what people always believed it to be and that ownership will return to the Crown. That is precisely where the foreshore and seabed will be vested as everybody believed it was in the first place.  
It is interesting that the National Party in trying to deal with the debate right now is showing all the signs of a party that is in total disarray. Its members are very confused and have to resort to being smart alec little schoolboys to make points. That is interesting because when the National members have to resort to those sorts of tactics it proves that they have no basis for their argument and nothing valid to say. I notice that Don Brash has not made one speech in the many long hours we have been here. Gerry Brownlee rightly thought that if Don Brash was not going to be here nor would he. So he got himself thrown out of the Chamber and he is not here either. We are left with schoolboy drivel. Parliament deserves better than that and the country deserves better than that.  
New Zealand First said that it would fix this problem and it has. We will fix the leadership of the National Party too. We will make sure that it has a complete restructuring at the next election and when National members come back they may ask whether they can be a junior coalition partner in some form of Government. 
Hon Dr NICK SMITH (National—Nelson) 
: 
 The member Ron Mark had the cheek to ask the Committee what we were doing debating a 135-page Supplementary Order Paper introduced only this very day. 
Hon Dr Michael Cullen 
: It was yesterday. 
Hon Dr NICK SMITH 
: What is the date on the wall of the Chamber? On the same parliamentary day that a Supplementary Order Paper is being introduced that is 135 pages long the members from New Zealand First say that this legislation will not affect access and that public access is guaranteed. I want to go right back to the core of this issue because it started in my electorate of Nelson. It started with the erection of a sign on the foreshore that stated “No access” and that one needed to get the consent of the local iwi in order to be able to go into those areas. The effect of that gate is to control public access for boating along about a 60-kilometre area of coastline. Who has the key to that gate is critical to access. [ 
Interruption 
] A moment ago Ron Mark told me to make a contribution and to talk about the issues. When I then talk about the issues he tries to shout me down. I want to know whether this bill will guarantee my constituents access to that 60 kilometres of coastline. The answer is no it does anything but that.  
This bill sets up an idea that just came into the public arena in the last 24 hours which is the provision for foreshore and seabed reserve. 
John Tamihere 
: It’s not about the coastline. 
Hon Dr NICK SMITH 
: We should not believe anything that Mr Tamihere says. He is the member who told the public one thing and was sacked for doing the opposite of that. He was the Minister for Land Information who said that there were thousands of kilometres of privately owned foreshore and was then found to be fibbing. He was saying the exact opposite of what the department had said. That is an absolute fact. 
Rt Hon Winston Peters 
: I raise a point of order Mr Chairperson. The member may say that another member is mistaken has misrepresented the facts or does not have the facts right but he cannot say that a member is fibbing or lying. Dr Smith needs to take a good long look at himself. 
The CHAIRPERSON (Hon Clem Simich) 
: The member has made his point. 
Rt Hon Winston Peters 
: Well I am worried about him. 
The CHAIRPERSON (Hon Clem Simich) 
: Yes I can see the concern there. “Fibbing” means the same as “lying” albeit at a lower level. 
Hon Dr NICK SMITH 
: I withdraw and apologise. It is a matter of public record that John Tamihere as Minister for Land Information said that there were thousands of kilometres of privately owned foreshore in the very week that his own department had written a report that stated there were only a few kilometres. It is little wonder that he was fired or had to resign as a Minister because he has difficulty with the truth.  
I also want to come back to the issue of public access. New Zealand First says that it is all guaranteed. It is not at all. In the new amendments this bill provides for wahi tapu to be created for wardens to be appointed and for those wardens to have the power to exclude people from those areas. Does that guarantee public access to the foreshore? Of course it does not. We know that in areas such as Tauranga where wahi tapu have been broadly described as areas of hundreds of hectares we will now be opening up the wahi tapu industry and extending it into the foreshore and seabed with new instruments to remove public access. So how can Winston Peters and his crew of fools from New Zealand First stand up in this Chamber and pretend that public access will be guaranteed? 
Ron Mark 
: I raise a point of order Mr Chairperson. I have seen about three or four people stand up in this Chamber and describe how mortally wounded and offended they were by some of the statements that were made. I have also suffered endless interjections from Dr Nick Smith on points of order. Being called a fool has mortally wounded me; it has offended me most sincerely. I would like him to withdraw that. Otherwise I will just think he is a bigger idiot than we already know he is. 
Hon Dr NICK SMITH 
: I raise a point of order Mr Chairperson. My colleague Gerry Brownlee was thrown out of the House for raising spurious points of order. Can you explain to me the specific point of order Ron Mark has made that means he should not suffer the same fate as Gerry Brownlee? 
The CHAIRPERSON (Hon Clem Simich) 
: He was trying to explain to me why he thought he was offended. I did not accept that. 
Hon Dr NICK SMITH 
: It is an absolute disgrace that a 135-page-long Supplementary Order Paper which is very complex and concerns very important legislation has been dropped on this Committee and that we are expected to ram this legislation straight through under urgency. It is a disgrace that New Zealand First is part of that con job. It is a disgrace that members of the Labour Party are prepared to do that in this Parliament. We see in this part of the bill and from New Zealand First—[ 
Interruption 
] Well it will be a damned good job.  
Rt Hon Winston Peters 
: When will you retire? 
Hon Dr NICK SMITH 
: We will not have to retire Winston Peters because we know from the polls that the new National candidate Bob Clarkson will take him out in Tauranga.  
The CHAIRPERSON (Hon Clem Simich) 
: There should be fewer interjections please. 
Hon Dr NICK SMITH 
: The issue for Mr Peters is how he can possibly justify saying to the public of New Zealand that this bill guarantees public access when we know that there is nothing in it that will take away the sort of gates that I have seen erected to remove public access on the foreshore of my electorate. Furthermore the provisions for special foreshore reserves for wahi tapu and for people to be excluded from that area of foreshore mean that the guarantees of access are not worth a grain of salt. I challenge Winston Peters to resign when the first person is excluded from the beach and the foreshore in my electorate. 
NANAIA MAHUTA (Labour—Tainui) 
: 
 I rise to make a contribution to the debate on clause 28 and the meaning of territorial customary rights. I think that this is a part of the bill that may cause a lot of difficulty in terms of defining customary property rights. In itself the title should be quite clear—territorial customary rights should state that it is a customary title. However that is not achievable in this bill and I do not think that the clause goes far enough. The issue arose from one of the comments that Dr Paul McHugh raised. He emphasised that tikanga would undoubtedly play a part in the development of the common law of New Zealand. It seems to me that if territorial customary rights or customary titles are to be provided for it is important that the contiguous land test is one that takes into account tikanga the 1840 principle and contiguous land ownership. But the way in which the bill has been written puts too much weight on the contiguous land issue. That may be something that may be revisited.  
It is important throughout the initial clauses of the bill that tikanga should be an upfront consideration of how to determine a territorial customary right because then all the considerations about how land transactions occurred along the coast could be better taken account of. I brought a submission to the select committee. I am from one of those groups that are not coastal tribal dwellers. In fact I have more of an association with a river so I make no secret about that and I am not an expert in this area. However I recognise that under tikanga the transference of land to kin network groups so that they are able to exercise a right along the coast is something that is well established over a long period of time. So when we are looking at the evidence that will be considered to determine whether a territorial customary right could be awarded those types of issues need to be taken into account if there is to be a real attempt to try to address this issue.  
What happens if the test is so high that no territorial customary right can be awarded? How long do we wait? We have already seen under the fisheries legislation that getting the issue of mataitai reserves through has quite a long gestation period. The legislative process has not really applied its thinking to trying to improve that. I do not really think that we should let that happen in this instance. It seems to me that clause 28 is problematic but we will never know until we try it and we have to start somewhere. I accept that. However it does not go far enough.  
There were points within this issue that I think were raised before the select committee and during the discussions by many Maori submitters who said that if we were to have a test it must take into account their own tikanga. I do not know how this can be reflected in law but I think that the way in which it is written in clause 28 is a bit convoluted and we should simplify it a bit more.  
In fact the Maori Land Court really has the expertise in this area and has already made provision for determining issues of tikanga. Perhaps that may be an avenue that may assist the High Court in its determination.  
The other point about the tikanga test is this: will it be clear when evidence is presented to the High Court that those matters can be considered before the court? I am not sure. I hope that it can be and if it cannot it should be fixed at some later date.  
Clause 28 is a bit convoluted as I have already said. The contiguous land issue although it seems that the clause is written as a determining factor should be balanced off against other interests. The points were raised with the select committee I understand that other considerations should be taken into account. We hope that when Maori take the path of determining their territorial customary right to gain a customary title the test applied will achieve that. I am not sure that it will. 
Hon RICHARD PREBBLE (ACT) 
: 
 I want to raise a matter with the Minister. I concede immediately that I am not sure about the matters I am raising. The reason is that the Supplementary Order Paper has come in so late and there is no explanatory note. Let me say what I think the situation is. When I am looking at the position for the granting of a territorial customary right I see that it appears that the test to the High Court is a high one and is the test that the Court of Appeal would have applied but for this bill. New clause 28(2)(a) states: “that area was used and occupied to the exclusion of all persons who did not belong to the group by members of the group without substantial interruption in the period that commenced in 1840 and ended with the commencement of this Part;”. When we look at that provision we can see that there are very few parts of the foreshore of New Zealand that Maori can say they have occupied to the exclusion of all others. That is what the common law is. That is the nature of a customary right. If one does not use it one loses it. The Government could say that it is reinstating the law.  
I have no difficulty with that except when I come to new clause 34A “If no finding made application may in appropriate cases be considered under Part 3 or Part 4”. It states: “If the High Court does not make a finding under section 29 but considers that any rights identified in the application are rights of a kind that are more appropriately considered under Part 3 or Part 4 the High Court may do whichever of the following is appropriate: (a) treat the application as an application under Part 4: (b) refer the application to the Maori Land Court for consideration under Part 3.”  
The point I make to the Government is that this is an example of why the Parliament is saying that Maori are both losing and gaining. On the face of it the provision appears to be tough but it then states that even if a group does not have a customary right it can send its application off to the Maori Land Court to create one. I cannot go into Part 3—[ 
Interruption 
] No in the debate on Part 3 I will say that Maori are most certainly given that right. If I have interpreted it correctly firstly it explains why the bill is so complicated and secondly the bill is an outrage. This Parliament should not be taking away citizens’ property rights but it should not be creating them either. Here is a situation whereby the Government is taking away property rights from Maori—and that makes it racist—and it appears to me it is creating some other possibly inferior property rights for Maori and only Maori which is also racist.  
I would like the Minister to explain firstly whether I am right in my explanation and secondly what possible justification there is to say to people who no longer have a customary right and no longer own the foreshore that presumably because they once did—and because they feel affectionate towards it—they will have special rights under the Resource Management Act. I ask the Minister where the justification for that is. What possible legal principle is behind that? It seems to me to explain why this bill is so complicated. The Government wants to hide from ordinary New Zealanders that this is what it is doing. It seems to me to be stuck in the swamp of the politics it has got itself into. This is what happens when a Government moves away from clear statements of principle.  
As I read the first part of the provision it seems to me to be a clear statement of the law. Some people may not like it but that is the statement of the law. If one has a customary right and has not exercised it one loses it. One must use it or lose it. Now the Government is saying that even when the High Court finds that the parties have not used the customary right and that usage has not been exclusive it will refer them to the Maori Land Court to find new rights. I ask the Minister where the justification for that is. How can the Government possibly justify new clause 34A where if the court does not find that there is a customary right—where a group has lost the property—the application should be considered under Part 3? 
LYNNE PILLAY (Labour—Waitakere) 
: 
 I move  
That the question be now put 
. 
GERRY BROWNLEE (Deputy Leader—National) 
: 
 The points that Mr Prebble made— 
Clayton Cosgrove 
: Old Lazarus! 
GERRY BROWNLEE 
: It is interesting to hear Mr Cosgrove quoting the Gospel. It must be the influence of sitting next to Mr Tamihere. The point that Mr Prebble made was to say the least an interesting one. It takes us back to new clause 29 “High Court may find that a group held territorial customary rights” which refers to groups that had it not been for the passing of this bill or for the foreshore and seabed having passed into Crown ownership might have been able to claim a territorial right. The Minister in the chair Michael Cullen may want to tell us what are the limits and constraints on that. Surely most Maori communities around the countryside would at some time have been on land contiguous with the foreshore and seabed—certainly some inland we know that. Many around the coastline have not been there for many many years. In my own city of Christchurch I can think of those sorts of communities but when the Canterbury Association ships arrived in 1850 and the Deans’ lease was renegotiated and became a lease deal many of those communities moved. Had they not moved then clearly they would have held according to this bill the territorial right to those seas. I simply ask what the constraint is that the court is under when considering applications under clause 29.  
Hon Dr Michael Cullen 
: Contiguous now. 
GERRY BROWNLEE 
: Although Dr Cullen says: “Contiguous now.” the point is that the bill is saying that had those groups held the land they would not have lost the territorial title. Surely there has to be some better answer than that it applies only now. It may well mean that those iwi groupings and small hapu around the country are able to go back many many years to a time when they were in possession of those properties.  
I need to make a few comments about new clause 12 because when I last spoke on this bill we were debating up to that clause. There has been a lot of discussion this afternoon— 
Hon Dr Michael Cullen 
: It’s called reasonable continuity. 
GERRY BROWNLEE 
: It indicates that we have a long way to go in debating this part. It has taken about an hour to get from clause 12 to clause 34 and we have some considerable distance to go before we get to Part 3.  
My real point is that a number of people have asked this afternoon what clause 12 is all about. Essentially it is about empowering the Government to do deals in treaty settlements in order to see the transfer of foreshore and seabed ownership passed to Maori. We might well decide that this is the Tainui clause or the Hauraki clause—two groupings that the Government is currently negotiating with. [ 
Interruption 
] The Minister of Maori Affairs has confirmed across the Chamber that that is exactly what the purpose is. The Minister is able to tell his people to go along with this bill because where it counts the Government will do a deal with them and will pass over the ownership of those seabed and foreshore areas in the rohe. It is quite a simple thing in actual fact.  
I do not think the other parts of this bill are really adequate enough to fully distinguish in the public’s mind the difference between a territorial customary title and a customary right. It seems to me that the two have been confused not only by commentators but particularly by the Government throughout the passage of this bill. Indeed I think it was around the issue of customary rights that ancestral connection hit the rocks. It has been moved out of this bill and the proposal has come forward that it be placed into resource management legislation.  
MARK PECK (Labour—Invercargill) 
: 
 I move  
That the question be now put 
. 
LARRY BALDOCK (United Future) 
: 
 I will continue on from where I left off in my last call by asking the Minister to give an explanation to the Committee—and I think it would be beneficial to people in local government around the country—of the loss of title by local government to the foreshore and seabed. We understand the reason for that if it concerns the wet part of the foreshore and seabed but can the Minister explain whether compensation will be paid if it is reclaimed land that has not yet gone into private title? In fact can he explain what the bill states about that particular part of the former foreshore and seabed? There is a weird bit of policy running through the bill that has nothing to do with the Ngati Apa issue whereby land that is no longer foreshore and seabed will now be claimed by the Crown and the issuing of private title to it will be prevented. Could the Minister give an explanation of how that will affect local government—even if just for my sake in order to give me an understanding of that?  
In this call I want to speak mostly on clause 34B “Purposes and status of foreshore and seabed reserve”. That is a very interesting and late development in the whole process. It may become contentious in the future not for any negative reason in terms of Maori being able to establish foreshore and seabed reserves in areas where territorial customary rights are established but because other New Zealanders will become pretty jealous of that model. That model seems like a pretty good idea to many people who are concerned about the management of the inshore area—the foreshore and seabed—particularly out to the 4-mile or the 12-mile area. They too would like to be involved in management committees or guardianship roles in that area. We have the precedent of the Guardians of Fiordland’s Fisheries and Marine Environment an excellent model established over the last 3 or 4 years. I know that many people particularly recreational fishers are interested in seeing that model expanded around the country. Here we find it expanded under the provisions of this bill and I think that is good.  
I would just like to mention a couple of points. It is reassuring that clause 34B(2) states very clearly: “Neither the guardians of a foreshore and seabed reserve nor the applicant group nor the board is entitled to charge or collect fees or other form of payment from any person or body for the use or occupation of the reserve.” I think that is wonderful; that is the way it ought to be. But then when we go to clause 34C(1)(c) we find that when a board is being set up the persons or bodies to be represented on it must determine “the resources required for the operation of the board and how its costs will be met.” It is very clear that the boards are prohibited from charging people. That is good and reassuring but clearly costs will be involved in the setting-up and ongoing operation of the guardian boards. In fact if we go to clause 34D(1)(v) we see that there is a requirement to set up a policy outlining “the remuneration of members and the payment of members’ out of pocket expenses;”. That begs the question of who will be paying for that.  
I think local government will be interested in that issue. It seems to be made the responsibility of regional councils as under clause 34C(2) it is “the regional council with responsibility under the Resource Management Act 1991 for the area to which the High Court finding relates;” that will have the guiding role in it all. I am sure regional councils will be interested to know whether they will have to pay for the costs which will then come from the ratepayers. While I understand the need for flexibility it is not clear who will pay those costs. I do not see why if we are to give Maori the opportunity to establish those reserves at their request the costs ought not to be borne by Maori. If the policy here is intended to state that Maori must make it clear how they will pay those costs I think that will be acceptable to most New Zealanders. But if in fact the costs are to be paid by ratepayers—if the costs are to be shared by all the residents of the area—then I think local government will be looking very carefully at the make-up of the boards or the guardian entities in order to see that there is fair and equal representation.  
I do not make these comments to suggest that the foreshore and seabed reserves are in any way a bad thing. I think they are a very positive step particularly if that model enables more local control over the establishment of marine reserves. Those reserves are causing huge contention around New Zealand and I think the answer is to allow local people to have local management of such areas. 
LINDSAY TISCH (Junior Whip—National) 
: 
 I raise a point of order Madam Chairperson. I note that the Government is moving closure motions on a very important part of this bill Part 2. We have now been going for 3 hours on this part and 25 calls have been taken. I ask you to compare that with Part 1 on which we spent over 3½ hours and had 36 calls. Some National spokespeople want to speak and they have been seeking the call. Dr Wayne Mapp who was on the Fisheries and Other Sea-related Legislation Committee has been seeking a second and a third call for the last couple of hours. I ask that you take that into consideration before you consider the closure motion. 
Hon Dr MICHAEL CULLEN (Leader of the House) 
: 
 Madam Chairperson I will not try to influence you one way or the other; I simply point out that it is totally improper by way of point of order or otherwise to try to influence the Chair on the taking of a closure motion. It should not be done. 
The CHAIRPERSON (Ann Hartley) 
: I thank the member. We have spoken about this a couple of times during the debate and say to Mr Tisch that points of order on this have been answered. 
CLAYTON COSGROVE (Labour—Waimakariri) 
: 
 I move  
That the question be now put 
. 
Dr WAYNE MAPP (National—North Shore) 
: 
 I want to talk—[ 
Interruption 
] 
Gerry Brownlee 
: I raise a point of order Madam Chairperson. I do hope that Dr Mapp’s time has not commenced. 
The CHAIRPERSON (Ann Hartley) 
: No. 
Gerry Brownlee 
: I also suggest that had such behaviour occurred on this side of the Chamber we might have ended up with someone being ejected from the Chamber. But I suppose you have to make exceptions when people are as remedial as Mr Cosgrove. 
The CHAIRPERSON (Ann Hartley) 
: That was not a point of order; it only leads to disorder. I had called for order. 
Dr WAYNE MAPP 
: I want to talk about two issues. The first is the claim that New Zealand First members have been making which is that they believe in one law for all. Their leader said that in his contribution. In fact he has been going around the whole country making that claim and he gets a certain number of votes for it. Today he is doing precisely the opposite. He is not just voting for the legislation; he actually participated in its drafting. Mr Dail Jones and Mr Winston Peters have been working together with the Government to build separatist law. That is what has happened. I see headlines alleging that New Zealand First believes in one law for all. In reality they provide divisive law.  
If we look at the territorial customary rights rules we see they can be claimed only by Maori. That is the first point. No one can reasonably dispute that fact. How can that possibly fit within the rubric of one law for all? There are two separate bodies of law; there is simply no doubt about that fact. The second point is that New Zealand First claims to be providing Crown law and Crown ownership for all New Zealanders. 
Dave Hereora 
: That’s right. 
Dr WAYNE MAPP 
: The member says: “That’s right.” Territorial customary rights cut right across that. They will restrict the ability of the owner the Crown—on behalf of all New Zealanders—to freely exercise its ownership. Why do I say that? We have only to look at clause 6 the purported access provision to see why. Such provisions are typically drafted so that the first part of the clause is a general proposition—in this case it is that there shall be a complete right of access across the public foreshore—and then the devil is in the detail. We have only to go to clause 6(3) to see all the provisos. [ 
Interruption 
] In that instance access rights can be restricted and limited and that is exactly what has happened. So right through this legislation one gets the general proposition then the provisos.  
I want to provide another example for members of New Zealand First who clearly do not understand this and they have only to look at clause 11 “Public foreshore and seabed vested in the Crown”. Again in subclause (1) is the general proposition that ownership is vested in the Crown absolutely. Almost immediately below that subclause (3) provides: “Subsection (1) does not affect customary rights that are able to be recognised and protected under Part 3 and Part 4.” Those parts of course are the very areas where we get the territorial customary rights and the customary rights orders which then provide limitations to the general ownership provisions.  
So there are general grand-sounding principles that are then shot through with all sorts of exceptions that serve to limit the public interest. New Zealand First claims to protect the public interest but I will not ascribe even that to the Labour Government. Those Labour members know what they are doing. They know they are setting up separatist law and are proud of it. In the  
New Zealand Herald  
today we read that the Maori members expect 10 percent of the coastline to be subject to those territorial customary rights orders.  
Government Member 
: Ah! 
Dr WAYNE MAPP 
: Those members might groan but I believe what I read in the papers—[ 
Interruption 
] When journalists quote or refer to the views of the Maori caucus it is because they have spoken to its members. Those members know that reality. Those members opposite spoke to the journalist and told her that it was exactly their expectation. They told the  
New Zealand Herald  
that they expect the percentage to be 10 percent and that is what they will demand. Dover Samuels cannot possibly deny that. 
Hon MARK GOSCHE (Labour—Maungakiekie) 
: 
 I move  
That the question be now put 
. 
A party vote was called for on the question  
That the question be now put. 
Ayes 66 
New Zealand Labour 51; New Zealand First 13; Progressive 2. 
Noes 52 
New Zealand National 27; Green Party 9; ACT New Zealand 8; United Future 8. 
Motion agreed to. 
The question was put that the following amendment in the name of Metiria Turei to clause 10 be agreed to: 
to omit this clause. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 10 
Green Party 9; Maori Party 1. 
Noes 109 
New Zealand Labour 51; New Zealand National 27; New Zealand First 13; ACT New Zealand 8; United Future 8; Progressive 2. 
Amendment not agreed to. 
The question was put that the following amendment in the name of Metiria Turei to clause 11 be agreed to: 
to omit subclause (1). 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 10 
Green Party 9; Maori Party 1. 
Noes 109 
New Zealand Labour 51; New Zealand National 27; New Zealand First 13; ACT New Zealand 8; United Future 8; Progressive 2. 
Amendment not agreed to. 
The question was put that the following amendment in the name of Metiria Turei to clause 11 be agreed to: 
to omit from subclause (2) the expression “Subsection (1)”. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 10 
Green Party 9; Maori Party 1. 
Noes 109 
New Zealand Labour 51; New Zealand National 27; New Zealand First 13; ACT New Zealand 8; United Future 8; Progressive 2. 
Amendment not agreed to. 
The question was put that the following amendment in the name of Metiria Turei to clause 11 be agreed to: 
to omit from subclause (3) the expression “Subsection (1)”. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 10 
Green Party 9; Maori Party 1. 
Noes 109 
New Zealand Labour 51; New Zealand National 27; New Zealand First 13; ACT New Zealand 8; United Future 8; Progressive 2. 
Amendment not agreed to. 
The question was put that the following amendment in the name of Metiria Turei to clause 21 be agreed to: 
to insert in subclause (2) after the words “or subclause (1A)”; the words “or subclause (1B)”. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 10 
Green Party 9; Maori Party 1. 
Noes 109 
New Zealand Labour 51; New Zealand National 27; New Zealand First 13; ACT New Zealand 8; United Future 8; Progressive 2. 
Amendment not agreed to. 
The question was put that the following amendment in the name of Metiria Turei to clause 29 be agreed to: 
to omit the words “ but for the vesting of the full legal and beneficial ownership of the public foreshore and seabed in the Crown by section 11 have held” and substitute the word “hold”. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 10 
Green Party 9; Maori Party 1. 
Noes 109 
New Zealand Labour 51; New Zealand National 27; New Zealand First 13; ACT New Zealand 8; United Future 8; Progressive 2. 
Amendment not agreed to. 
The question was put that the amendment in the name of Metiria Turei to clause 9 set out on Supplementary Order Paper 302 in the name of the Hon Dr Michael Cullen be agreed to: 
to omit proposed new subclause (1). 
A party vote was called for on the question  
That the amendment to the amendment be agreed to. 
Ayes 10 
Green Party 9; Maori Party 1. 
Noes 109 
New Zealand Labour 51; New Zealand National 27; New Zealand First 13; ACT New Zealand 8; United Future 8; Progressive 2. 
Amendment to the amendment not agreed to. 
The question was put that the following amendment in the name of Metiria Turei to proposed new clause 9A set out on Supplementary Order Paper 302 in the name of the Hon Dr Michael Cullen be agreed to: 
to omit the words “must not take any action other than one of” and substitute the words “may take any action it sees fit including but not restricted to”. 
A party vote was called for on the question  
That the amendment to the amendment be agreed to. 
Ayes 10 
Green Party 9; Maori Party 1. 
Noes 109 
New Zealand Labour 51; New Zealand National 27; New Zealand First 13; ACT New Zealand 8; United Future 8; Progressive 2;  
Amendment to the amendment not agreed to. 
The CHAIRPERSON (Ann Hartley) 
: The next amendment is to clause 12 in the name of Larry Baldock. I ask members to note that this proposal for entrenchment requires the agreement of 90 members. 
The question was put that the following amendment in the name of Larry Baldock to proposed new clause 12 set out on Supplementary Order Paper 302 in the name of the Hon Dr Michael Cullen be agreed to: 
to omit paragraph (a) of subclause (2) and substitute the following new paragraph: 
(a)by a special Act of Parliament: 
(i) passed by a majority of 75% of all the members of the House of Representatives; and 
(ii) enacted after the commencement of this Act; or. 
A party vote was called for on the question  
That the amendment to the amendment be agreed to. 
Ayes 17 
Green Party 9; United Future 8. 
Noes 102 
New Zealand Labour 51; New Zealand National 27; New Zealand First 13; ACT New Zealand 8; Progressive 2; Maori Party 1. 
Amendment to the amendment not agreed to. 
The CHAIRPERSON (Ann Hartley) 
: The next amendment is to clause 12 in the name of Metiria Turei. It is an entrenchment clause and was different in element from the previous amendment and that is why it was allowed. 
The question was put that the following amendment in the name of Metiria Turei to proposed new clause 12 set out on Supplementary Order Paper 302 in the name of the Hon Dr Michael Cullen be agreed to: 
to add the following new subclauses: 
(3)No special Act of Parliament to which subsection (2)(a) applies may be passed unless the proposal for the Act— 
(a)is passed by a majority of 75% of all the members of the House of Representatives; or 
(b)has been carried by a majority of the valid votes cast at a poll of the electors of the general and Maori electoral districts: 
provided that this subsection does not apply to the repeal of subsection (1) or (2) by a consolidating Act in which that provision is or those provisions are re-enacted without amendment and this subsection is re-enacted without amendment so as to apply to that provision or those provisions as re-enacted. 
(4)Subsection 3 does not apply where special legislation is proposed for the alienation of the foreshore and seabed for the purposes of any treaty settlement legislation. 
A party vote was called for on the question  
That the amendment to the amendment be agreed to. 
Ayes 10 
Green Party 9; Maori Party 1. 
Noes 101 
New Zealand Labour 51; New Zealand National 27; New Zealand First 13; ACT New Zealand 8; Progressive 2. 
Abstentions 8 
United Future 8. 
Amendment to the amendment not agreed to. 
The question was put that the following amendment in the name of Metiria Turei to proposed new clause 14 set out on Supplementary Order Paper 302 in the name of the Hon Dr Michael Cullen be agreed to: 
to omit proposed new paragraph (a) of subclause (2). 
A party vote was called for on the question  
That the amendment to the amendment be agreed to. 
Ayes 10 
Green Party 9; Maori Party 1. 
Noes 109 
New Zealand Labour 51; New Zealand National 27; New Zealand First 13; ACT New Zealand 8; United Future 8; Progressive 2. 
Amendment to the amendment not agreed to. 
The question was put that the following amendment in the name of Deborah Coddington to clause 15(1) be agreed to: 
to insert after the words “acquire” the words “by agreement”. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 43 
New Zealand National 27; ACT New Zealand 8; United Future 8. 
Noes 76 
New Zealand Labour 51; New Zealand First 13; Green Party 9; Progressive 2; Maori Party 1. 
Amendment not agreed to. 
The question was put that the amendment in the name of Metiria Turei to proposed new clause 19 set out on Supplementary Order Paper 302 in the name of the Hon Dr Michael Cullen be agreed to: 
to omit this clause. 
A party vote was called for on the question  
That the amendment to the amendment be agreed to. 
Ayes 10 
Green Party 9; Maori Party 1. 
Noes 109 
New Zealand Labour 51; New Zealand National 27; New Zealand First 13; ACT New Zealand 8; United Future 8; Progressive 2. 
Amendment to the amendment not agreed to. 
The question was put that the following amendment in the name of Metiria Turei to the amendment to clause 21 set out on Supplementary Order Paper 302 in the name of the Hon Dr Michael Cullen be agreed to: 
to add the following new subclause: 
(1B) If a holder of customary rights order or a territorial customary rights order makes a written application to the Minister of Conservation and to the Minister of Maori Affairs those Ministers may to the extent that they consider it necessary to protect the relevant wahi tapu by notice in the  
Gazette 
 prohibit or restrict access over any area of the public foreshore and seabed. 
A party vote was called for on the question  
That the amendment to the amendment be agreed to. 
Ayes 18 
Green Party 9; ACT New Zealand 8; Maori Party 1. 
Noes 101 
New Zealand Labour 51; New Zealand National 27; New Zealand First 13; United Future 8; Progressive 2. 
Amendment to the amendment not agreed to. 
The question was put that the following amendment in the name of Metiria Turei to proposed new clause 28 set out on Supplementary Order Paper 302 in the name of the Hon Dr Michael Cullen be agreed to: 
to omit this clause. 
A party vote was called for on the question  
That the amendment to the amendment be agreed to. 
Ayes 11 
Green Party 9; Maori Party 1; Other: Nanaia Mahuta. 
Noes 108 
New Zealand Labour 50; New Zealand National 27; New Zealand First 13; ACT New Zealand 8; United Future 8; Progressive 2. 
Amendment to the amendment not agreed to. 
The question was put that the following amendment in the name of Metiria Turei to the amendment to clause 33(1) set out on Supplementary Order Paper 302 in the name of the Hon Dr Michael Cullen be agreed to: 
to omit the word “either” and to substitute the word “any”. 
A party vote was called for on the question  
That the amendment to the amendment be agreed to. 
Ayes 10 
Green Party 9; Maori Party 1. 
Noes 109 
New Zealand Labour 51; New Zealand National 27; New Zealand First 13; ACT New Zealand 8; United Future 8; Progressive 2. 
Amendment to the amendment not agreed to. 
The question was put that the following amendment in the name of Metiria Turei to proposed new clause 33 set out on Supplementary Order Paper 302 in the name of the Hon Dr Michael Cullen be agreed to: 
to add the following new paragraph: 
(c)any other orders or findings as it considers appropriate under its inherent jurisdiction. 
A party vote was called for on the question  
That the amendment to the amendment be agreed to. 
Ayes 10 
Green Party 9; Maori Party 1. 
Noes 109 
New Zealand Labour 51; New Zealand National 27; New Zealand First 13; ACT New Zealand 8; United Future 8; Progressive 2. 
Amendment to the amendment not agreed to. 
The question was put that the following amendment in the name of Metiria Turei to proposed new clause 33A set out on Supplementary Order Paper 302 in the name of the Hon Dr Michael Cullen be agreed to: 
to add to subclause (4) the words “or (c)”. 
A party vote was called for on the question  
That the amendment to the amendment be agreed to. 
Ayes 10 
Green Party 9; Maori Party 1. 
Noes 109 
New Zealand Labour 51; New Zealand National 27; New Zealand First 13; ACT New Zealand 8; United Future 8; Progressive 2. 
Amendment to the amendment not agreed to. 
The question was put that the following amendment in the name of Metiria Turei to proposed new clause 34 set out on Supplementary Order Paper 302 in the name of the Hon Dr Michael Cullen be agreed to: 
to omit this clause. 
A party vote was called for on the question  
That the amendment to the amendment be agreed to. 
Ayes 10 
Green Party 9; Maori Party 1. 
Noes 109 
New Zealand Labour 51; New Zealand National 27; New Zealand First 13; ACT New Zealand 8; United Future 8; Progressive 2. 
Amendment to the amendment not agreed to. 
The question was put that the amendments set out on Supplementary Order Paper 302 and Supplementary Order Paper 304 in the name of the Hon Dr Michael Cullen to Part 2 be agreed to. 
A party vote was called for on the question  
That the amendments be agreed to. 
Ayes 74 
New Zealand Labour 51; New Zealand First 13; United Future 8; Progressive 2. 
Noes 45 
New Zealand National 27; Green Party 9; ACT New Zealand 8; Maori Party 1. 
Amendments agreed to. 
A party vote was called for on the question  
That Part 2 as amended be agreed to. 
Ayes 66 
New Zealand Labour 51; New Zealand First 13; Progressive 2. 
Noes 53 
New Zealand National 27; Green Party 9; ACT New Zealand 8; United Future 8; Maori Party 1. 
Part 2 as amended agreed to. 
Part 3 Provisions relating to Maori Land Court and orders it may make  
The CHAIRPERSON (Ann Hartley) 
: The debate on Part 3 clause 35 to 56 includes debate on schedule 1.  
GERRY BROWNLEE (Deputy Leader—National) 
: 
 I raise a point of order Madam Chairperson. I just want a clarification. I am looking through the redline copy which I know is not official but is there to help us. I notice that clauses 38 to 40 seem to be struck out. In actual fact it would appear that the sequential numbering will go from clause 37 straight to clause 41. Is that caused by hurried preparation or do I have a copy with some bits missing? My pages are sequentially numbered if that helps.  
The CHAIRPERSON (Ann Hartley) 
: Would the member please repeat that. 
GERRY BROWNLEE 
: If you go to page 46 of that document Madam Chairperson you will see that the last clause there is clause 37 “Applications for orders”. There is a small clause remaining there but virtually from there on the clauses—38 39 40 and 41 42 and 43—are all removed. When it comes to the content going back into the bill on page 50 we start with clause 41 so it is just a question of what has happened to clauses 38 39 and 40. 
Dail Jones 
: I raise a point of order Madam Chairperson. Whilst the Minister is perhaps getting some more information I note on just having a quick look at it that that legislation relates to ancestral connection does it not? That has been deleted hence it is not in the bill any more. 
The CHAIRPERSON (Ann Hartley) 
: Yes but I did not hear fully what the member said. 
Dail Jones 
: I believe that those deletions relate principally to ancestral connection and there have been some further matters tidied up as well. Perhaps the Minister could take another call because I was doing something else when the point of order was raised. But if we look at the redline version we see that it is principally ancestral connection matter that has been deleted I think and matter linked to it to some extent. The Minister can confirm whether I am right. 
Hon Margaret Wilson 
: As I read it both members are right. The numbers do not run sequentially and that is because the ancestral connection clauses have been removed—those three—so the bill needs to be renumbered. As the member Mr Brownlee quite rightly noted this redline version is here to assist; it is not the official version. It will be changed. 
GERRY BROWNLEE 
: Well I think that that just serves to show how difficult it is to deal with this bill. I am very pleased that the New Zealand First member Dail Jones is in the Chamber. He should be sitting in the Minister’s chair. That little explanation from him certainly confirms that this Supplementary Order Paper which is effectively an amendment bill by and large is his work. The country will not thank him for that.  
The interesting thing about this part we would contend is that in many ways clause 35 is what the Government should have done—or the essence of it is what it should have done—right from the start to make it clear that the Te Ture Whenua Maori Act did not give jurisdiction to the Maori Land Court to deal with the foreshore and the seabed. That should have happened right upfront and the rest of it should have been taken from there. 
The fascinating thing about this whole part is that it will empower the Maori Land Court to decide who has customary rights and who does not. It would seem to me that if an iwi grouping a hapu grouping or even a whanau grouping has a customary right then it has it. So why does it have to go to the Maori Land Court to have that right sorted out? 
In the South Island—and Dover Samuels will be able to attest to this because he is a beneficiary—there are arrangements for a particular customary right on the Crown’s Titi Islands the mutton birding islands that is a long established customary right. Not any Maori can go there; only certain families can go there. That right has been passed down from generation to generation and I expect that it would not change if there were some application to have it further ratified by going to the Maori Land Court. 
Our view quite simply when it comes to customary rights is that those recognitions should be made as part of treaty settlements—as they have been frequently up to now as they were under the National Party and as they will continue to be under the National Party. Those areas in question are not huge; they are relatively discrete areas around the country where undeniably there has been an exercise of a customary right for many many generations. 
What is perhaps most offensive about this piece of the bill is that it assumes and works from the premise that no customary right can be established post-1840. That has to be an utter nonsense. A good part of the country was completely desolate of human habitation in 1840. There have to be hundreds of thousands of people who have taken up residence around this country and engaged in activities that could be considered customary only for them. But this bill will not recognise that. I think particularly in the South Island where it was so sparsely populated and where new communities have sprung up that no matter whether people are Maori or non-Maori this legislation will be a denial of customary rights that they should be able to exercise. I think it is also amazing that where we can say there has been a customary practice—obviously in this case for more than 160-odd years or whatever—suddenly the Minister of Conservation will be brought in on top of that and he will make the determination for example of how many mutton birds Dover Samuels and his colleagues can take from the Crown’s Titi Islands in any particular year—[ 
Interruption 
] I only said Dover Samuels because he told me that he has access rights. 
Hon Member 
: I would not believe him. 
GERRY BROWNLEE 
: Oh has he not? He has led me up the garden path. Well why is that a surprise!  
The point is that there are people who have had those access rights and who have been carrying out that activity for many many years and it does not appear that they have carried out that activity in a way that has destroyed the resource. But it would appear that we are still going to have the Maori Land Court ratify that. Then despite treaty settlements we are going to have the Minister of Conservation inserted into the process as well. We know that the current Minister of Conservation is in fact more like a “Minister of Preservation” because he just does not want anything to be touched anywhere so I wonder whether members on the other side of the House or the Minister considers that these provisions in actual fact do cut across and place unnecessary constraint on those who hold the customary right. 
DAIL JONES (NZ First) 
: 
 Mr Brownlee has raised a point that suggests he has not understood the importance of 1840 and Dr Mapp in supporting Mr Brownlee in that comment indicates that he has not understood the importance of 1840 either and neither have the Maori Land Court judges. As Dr McHugh said to us and I refer to the Executive Summary 
— 
and I will quote just a small part of it because this is only a 5-minute speech: He said: “In clarifying that the High Court will have to develop a legal test and in doing so it will probably combine factual use and occupation (the Canadian factual-basis test) and the continuity of Maori custom (the Australian normative-basis test). Under both tests the crucial date is that of Crown sovereignty (1840).”  
We have to have a fixed date. It is the common law for goodness’ sake! How many times do we have to tell the National Party? It is the common law on which the Ngati Apa decision was based and which Dr McHugh spoke to us endlessly about. Dover Samuels understands. He is a practical man of the land and the sea. But these National Party people with PhDs and such like just do not get it. We have to have a fixed date. If one does not have a fixed date the Maori Land Court can keep changing the date to suit whoever comes along to it in accordance with whatever their tikanga just might have to be on the day. We could have transfers from 1840 to 1850 to 1870 to 1910 to 1980 to 2000. There could be endless movement and that is why there has to be a fixed time of 1840. That is what I proposed when the Labour Party made the suggestion in all good faith because it was with departmental support. It has to be 1840.  
I am appalled at the interference by the judiciary in this legislation with particular reference to the Maori Land Court. There is a clear constitutional convention that Parliament and the judiciary do not mix. There has been a breach of that convention by the judges of the Maori Land Court. I am concerned that some of those Maori Land Court judges might have a personal interest in this matter again making that breach of the constitutional convention even greater. No judge should come before a select committee as having made submissions. That is understood by everybody but it seems the Maori Land Court. The Maori Land Court has tried to influence Parliament by making a submission to change the 1840 rule. I want to know because I have been informed by a member sitting across there that one of those Maori Land Court judges’ tribes will benefit by a movable 1840 rule. Maori Land Court judges have no right to make a submission and clearly if they do they should disclose their personal interest. 
Hon Dr Nick Smith 
: What are you going to do about it? 
DAIL JONES 
: We had it taken out. Those members want it in. We do not want a movable feast. We could not want Maori Land Court judges having a conflict of interest and influencing the decision. The National Party seems to want that. I will be writing to the Chief Justice and to the Attorney-General. I believe that there has to be clear investigation of the Maori Land Court and its view of having a movable 1840. It is like a computer programme to put it in current terms. If one has a software programme one must not have a virus. But to move the date from 1840 onwards would be like a computer virus. At the end of the day the programme would be corrupted and it could come to a halt. One must have a fixed date. That is the point I made. That is the point made by Dr McHugh. It has to be certain. Mr Fairbrother made that point earlier on as well. There has to be a certain date and that is the answer also to the member for the Tainui area Nanaia Mahuta. There has to be a fixed date otherwise all sorts of people will be going to their cuzzies in the Maori Land Court and saying: “Hey bro we’ve done a deal with so and so and there’s a continuity.” and it will just go on forever.  
The whole idea of this is a certain date 1840 and I am absolutely staggered that Maori Land Court judges who also raised questions of judicial appointments want more jobs for the boys and girls. I have never heard of a judicial officer saying to a select committee that they want more jobs better conditions better pay and all those things that flow from it. That is unheard of. The matter should be considered at an executive level. Whoever is in charge of the Maori Land Court should be speaking to the Attorney-General or to the Chief Justice. He or she should not be coming to Parliament. He or she should not be talking about legal aid for example. That is a separate political matter. It is a policy matter and not a matter for the Maori Land Court. It is suggested that it wants more work to feather its own nest and make sure that it continues forever and a day. This is an absolutely appalling and disgraceful situation. The Maori Land Court needs to be fully investigated. 
METIRIA TUREI (Green) 
: 
 The Green Party has a large number of amendments on Part 3 as well—[ 
Interruption 
]—and we are looking forward to that are we not! A number of amendments refer to the provisions about how applications for customary rights orders will be decided. One of our amendments deletes clause 42 and replaces it with something that is substantially simpler easier to manage and more accessible but that also acknowledges that any customary rights have to be exercised in accordance with the law and that the law does apply to those areas. So it does not give complete free rein. 
Clause 42 as set out in Supplementary Order Paper 302 is a real concern. During the select committee hearings a lot of people were very worried about the possibility that resource consents could prevent Maori from getting a customary rights order because of the way that the tests for getting them were structured. It still is a serious concern. Will a resource consent for a very short period of time—perhaps 5 years—or even for 30 years disrupt interfere and effectively extinguish a customary right that has been in practice and in existence effectively for the last 500 or 800 years? The answer remains that yes a resource consent will do that even though officials assured us that resource consents would be excluded and that they would make sure that resource consents could not affect a customary rights order. 
The way that the clause has been structured to allow that to happen is by providing a myriad of little tests that Maori will have to meet. First they have to have been exercising the customary right since 1840; like Dail Jones said that makes perfect sense given that we are talking about customary rights here. Also the customary activity has to have been exercised on a particular piece of foreshore and seabed; of course that makes sense too. 
One criterion is that the customary right is not to have been prohibited by any enactment or rule of law; that is in clause 42(1). Resource consents are specifically excluded from affecting that. That means that a resource consent is not an enactment or rule of law that would prohibit the exercise of a customary right. On the face of it it looks like customary rights orders are protected from resource consents but in fact the test that the customary right has to have been exercised substantially uninterrupted since 1840 will be subject to resource consents and that means that resource consents can substantially interrupt the practice of that customary right. It does not matter whether the whanau the hapu or the iwi have been trying to exercise their right during the period that a resource consent has been in place and it does not matter that they had no control at all as to whether the resource consent would be approved by the local council—they could have had no culpability at all in that resource consent having gone ahead no responsibility for it and no capacity to stop it—that resource consent whether it be for 5 10 or 20 years can substantially interrupt their ability to carry out their customary right that they have been carrying out for 200 or 500 years and can prevent them from ever being able to get a customary rights order. 
It is an anomaly in the process. I do not know whether the Government intended it to be the case. The officials at the select committee clearly said that they did not want resource consents to interfere with customary rights orders but the way that the bill is structured means that they can interfere if they have physically prevented the carrying out in some form or another of that customary right in the form that it was carried out in 1840. If there was the capacity for that customary right to be broadened in some way or the rules around substantially the same exercise of that right or if there was allowance for periods of time when there was a lacuna in the exercise of that right because of external events occurring to that land or to that hapu then maybe this rule would not be such a problem. But with the way that it is structured now if a resource consent has stopped a hapu from getting access—even if it is only access to that land; even if it is not a resource consent over the foreshore and seabed itself but over access ways to it—they will not be able to get their customary rights order. 
Resource consents are prolific in this country. They are a critical environmental management tool that is used in all sorts of ways in all sorts of places. Hundreds and hundreds of whanau and hapu will not be able to get their customary rights because a resource consent has interrupted them. It is unjust. 
JOHN TAMIHERE (Labour—Tamaki Makaurau) 
: 
 With regard to Part 3 I make the following observations. I disagree quite vigorously with the New Zealand First member with regard to the criticism of the Maori Land Court bench. The jurisdiction of the Maori Land Court bench has increased somewhat in recent years. That bench rightly or wrongly has a very specific oversight requirement in terms of a totally different form of land tenure that is held in this country. As a consequence it is a court of special character and it does have some very special skills on board it. It has made a number of submissions in a number of areas as judges often do. I did want to stand and say that it is a very fine bench. It works under some significant constraints and I reject the way that it has been criticised in the Committee this afternoon.  
I shall move on to the jurisdiction of the court. The jurisdiction of the court has been clearly constrained in Part 3 relevant to customary rights orders. As to the point made by the Green member who has just resumed her seat I have struggled with the Green member’s contributions all the time in the Committee on this matter. The reason why I struggle is that I do not understand by example what she is actually talking about. Extant rights are protected—existing rights have to be protected. The reality is that if there are Resource Management Act consent issues in the foreshore and seabed domain so be it. Two wrongs do not make a right. The reality is that this particular part of the bill goes directly to the recognition of customary rights orders by way of orders from the Maori Land Court. On that particular basis I want to indicate that the underpinning benchmark if one likes for the finding of a customary rights order is the tikanga test. The tikanga test folds back also into Part 2—the territorial customary rights orders. One cannot have a territorial customary rights order unless there is a tikanga test that underwrites it. Every piece of land in this country that was not confiscated and handed back by way of Crown grant has a whakapapa that goes back to the Native Land Court and that whakapapa is determined solely on tikanga rights. What are some of those rights? They are: te take mataotao te take o te ahi ka te take marena and te take raupatu and so on and so forth. So Maori tikanga has actually founded the title system upon which many Kiwis hold their own land. The reality is that tikanga underwrites the customary rights orders.  
The fact that we have not had the opportunity to explore customary rights because of the finding in the Court of Appeal case that led to this legislation is a worry and a regret. But like all good Governments we have to bring certainty and closure. We have to put a process in place that will achieve a fair and just outcome in the event that common law rights do exist. Where they do exist this legislation puts in place a process that allows Maori to go to the Maori Land Court and to continue to explore whether their rights can be crystallised and whether they can provide the evidence to achieve that. So it is a very simple very clear process and it has a significant precedent base in the Maori Land Court. I support the Maori Land Court bench determining that matter. Because of its special character its special institutional memory and its special recording capability in respect of who holds mana in certain areas and how people actually achieved that mana that is how we can find a faster way of identifying and crystallising whether indeed customary rights continue to exist notwithstanding that the fall of law may have extinguished them. I do not know whether that is so because we have not carried on with that inquiry. So I commend this part of the bill to the Committee because it is a two-part process: territorial customary rights and customary rights orders. Having customary rights orders is obviously a significant plank and a base that can lead one into a territorial customary rights regime. That is part of the evidential track that we have here.  
I conclude by restating the points I wanted to make—that one cannot escape the tikanga test in asserting either a territorial customary right or in this instance a customary rights order. One cannot escape it. It actually underwrites the whole bedrock upon which Maori land law applies. I look forward to us asserting those rights as we continue to roll them out and evidence them. 
GORDON COPELAND (United Future) 
: 
 I would like to take a brief call on proposed new clause 41 “Limits to jurisdiction of Maori Land Court under this Part”. Before I go on with my remarks I would like to say that the wording under the proposed new clause 41 is identical to the wording in new Part 2A except that in that context it refers to the High Court. The point I want to talk about is therefore not limited to the Maori Land Court but applies with equal force to the High Court itself. Subclause (2) of the proposed new clause states: “A customary rights order must not be made in respect of an activity use or practice on the basis of a spiritual or cultural association unless that association is manifested by the relevant whanau hapu or iwi in a physical activity or use related to a natural or physical resource.”  
I would like to compliment the Government on that particular clause. It is a model clause that in my opinion should also be reflected in the Resource Management Act. I have been putting that proposal to the Government for some time and I understand that it may have a look at it. I hope the Government will choose to adopt it because it is a very important clause and a very important take on what can otherwise lead to quite unacceptable legal outcomes. I believe that Simon Upton the person who steered the Resource Management Act through the House has admitted that that Act is quite defective in terms of the way it deals with spiritual matters. The reason it does not work is that if we say the court can decide something taking into account a spiritual connotation then we immediately go off into the metaphysical. The question I raised earlier was this: how can any court any human jurisdiction possibly decide whether the spiritual truths—the metaphysical matters—that are being presented to the court are true? By definition they are totally subjective. They are personal to the beliefs of the particular applicants to the court. By the way when it comes to Maori applicants let us be quite clear that whanau and Maori in this country belong to a variety of different religions including some who adhere to traditional Maori beliefs. But Maori in their spirituality are by no means limited to those beliefs. Obviously there are many many Maori who are Christians Islamic and so on.  
The issue just comes down to the absolutely common-sense conclusion that we must try to reflect adequately in law anything that relates to the spiritual. I am not denying the spiritual for one moment—to the contrary. I am saying that we can ask a court to take a spiritual matter into account only if it is manifested in some physical or natural way. I am very very pleased to see that that wording has now been adopted. To give an example we can talk about a place of worship. A place of worship obviously has a physical presence of some sort—it is on the ground—so it can be taken into account in establishing a customary right and can therefore lead to a customary right order. If there is something physical—something natural—in existence we can do that. I want to commend the Government for picking that up. As some other people have said earlier in this debate in some ways in this bill we are amending the Resource Management Act because essentially a lot of this issue is about the management of resources on the foreshore and the seabed. So I do express the hope that clause 41 will set a good precedent and that we will see the same wording picked up in the forthcoming review of the Resource Management Act. 
Hon MARGARET WILSON (Minister in charge of Treaty of Waitangi Negotiations) 
: 
 I rise to support this part of the bill and also the amendments on the Supplementary Order Paper. I feel it may be useful to go over again the origins of this part of the legislation which have already been touched on by my colleague John Tamihere. The essence of the action to the Court of Appeal was to establish a route whereby Maori customary rights could be determined and recognised formally by the court and specifically by the Maori Land Court. Although those who have read the judgment know that there were eight or nine questions the Court of Appeal really only addressed itself to the question of the appropriateness of the Maori Land Court to be the jurisdiction to determine Maori customary rights. On that question it was quite clear. Therefore the question as to why that is happening would seem to me to be obviously answered by the fact that the Court of Appeal directed that there should be an increase in the jurisdiction of the Maori Land Court in that respect.  
Once that was to be actioned through legislation the question became one of how one would express Maori customary rights. Proposed new clause 42 referred to by the member from the Green Party sets out the test as it is understood and accepted in the common law world. I know there has been a tendency to try to change that test and as such to move away from the origin of those rights which are firmly based in common law customary rights. But the fact remains that their legitimacy and their recognition in the law has to go back to that origin.  
It is true as the members of the Fisheries and Other Sea-related Legislation Committee have indicated in their various contributions in the Committee that there is some difference as to the exact criteria used in determining customary rights in the various jurisdictions and particularly in Canada and Australia from which we take our precedents. The reason why we do not have a strong jurisprudence on customary common law rights is of course due to the Treaty of Waitangi. In fact most of the rights pursued have been founded upon breaches of the treaty. However that has not meant that there have not always been in existence as a residual right the customary common law rights. This legislation is a recognition of those rights for the first time as Maori colleagues have repeatedly said within the context of legislation passed by this Parliament. In that context they do get an added recognition. They get a formality and a clarity and they get a process for enforcement in way that is understood by all parties who will be affected by them.  
The reason why there is the reference to 1840 is almost so obvious that one is embarrassed to actually restate it. I am constantly amazed—and I know I will apologise for this comment—as to how that member wishes to share his ignorance in this area with more people than perhaps is decent. It just seems that 1840 was in fact the significant time. It was at that time that the agreement was reached that did affect the nature of the customary common law rights. By definition without the treaty the whole of the jurisprudence in this country for Maori in terms of addressing breaches would have been based on common law customary right. But because of the treaty and because of the process of extinguishment that in fact is a residual if one likes category for legal action. However it has been seen and is perfectly understood as being a whole new source of jurisprudence that we can recreate in our likeness without any reference back to its common law roots. This legislation says no its legitimacy must be founded in those roots and that is why those criteria are set there and the essence of those criteria is tikanga Maori. One cannot in fact establish the nature of a common law customary right without reference to tikanga Maori and that is why that is explicitly stated within the bill.  
On another matter that the member for the Greens raised I also am puzzled because it seemed to me that clause 42A(3) would address her point. 
RODNEY HIDE (Leader—ACT) 
: 
 That was the former dean of Waikato law school who was speaking. It has puzzled us that—we could not understand why—Hamilton law graduates could not get jobs outside the grievance industry but now we understand it given that legal reasoning. As I listened to Mr Copeland I found myself in strange agreement with him. He was complaining about the fact that this bill puts the metaphysical dimension into legislation and that the law should not rule on that. I found that to be absolutely true. Of course I found it interesting that that view came from Mr Copeland who I understood was here in Parliament in order to put the metaphysical dimension into our legislation and into Government policy—as long as it is the right metaphysics I guess.  
I go back to Mr Tamihere’s speech. It is very very clear that that member focused at university on tax law rather than on any jurisprudence or constitutional principles because how wrong could a man get? If the Government was proud of this legislation why did it present the Supplementary Order Paper just yesterday? Why is the Government racing this legislation through under urgency in a couple of days? If the Government believes that this legislation will withstand scrutiny why not take the time for that? It is because the Government knows it does not withstand scrutiny. I know that Nanaia Mahuta agrees with me on that; she is not going to vote for this bill at the third reading. 
Rt Hon Winston Peters 
: She is. 
RODNEY HIDE 
: No no. She is a person of principle. We know that she will not vote for it. We know that John Tamihere does not agree with this bill. He is just voting for it—[ 
Interruption 
] What does he say? 
John Tamihere 
: I’m voting for it. 
RODNEY HIDE 
: Oh he says he is going to vote for it—just as he said he would not take the golden handshake.  
We have not changed our view of this legislation and what we need to do is to draw the dots together. Let us take all the dots join them together and see what is going on here. The reason that Maori people are upset over this bill is a sound one. They were going through a process through the courts of New Zealand to determine what their customary rights were. They were absolutely entitled to do that. 
Hon Dover Samuels 
: They can do it under this bill. 
RODNEY HIDE 
: No they cannot do that. If they could still do that why does it need legislation? They were denied the opportunity to do that and the ACT party says that is wrong. We felt that the rights of Maori as the Court of Appeal stated were quite circumscribed—the odd reef and the odd burial site. We see no objection to Maori exercising their rights. We see no reason why they should be denied that opportunity. So Maori are upset that the Government came along and denied them their right to have their day in court. [ 
Interruption 
] Dover Samuels is yelling out and New Zealand First is yelling out that Maori do have those rights. Let us just see in this legislation what their rights are. Well they can go to the Maori Land Court and they can go to the High Court and the court can determine—what are they called—customary right orders. [ 
Interruption 
] I have to tell that member—what is his name? Darren Hughes. I have to tell Darren Hughes that when people go off to the court to have their customary rights determined they do not get a customary rights order. They get the customary rights they are entitled to.  
Hon Dover Samuels 
: Did you get a customary rights order? 
RODNEY HIDE 
: I know that Dover Samuels does not like to hear the truth about this bill. Maori can go to court and the Maori Land Court and the High Court are to determine customary rights orders. 
Hon Dover Samuels 
: Blowhard! 
RODNEY HIDE 
: He says I am a blowhard. Let me ask Mr Samuels this: how much of the foreshore and seabed in his view will be subject to a customary rights order? 
Hon Dover Samuels 
: It depends on how many whanau and hapu take their applications to the Maori Land Court and the High Court. 
RODNEY HIDE 
: Oh! So that is the answer. And if Maori apply do they automatically get a customary rights order? I am asking Mr Samuels. If a whanau hapu or iwi applies does it automatically get one?  
Hon Dover Samuels 
: It has to go to the court. 
RODNEY HIDE 
: How much of the foreshore and seabed could that apply to? 
Hon Dover Samuels 
: I can’t determine that. It has to go to the court. 
RODNEY HIDE 
: He cannot determine that. Exactly! Is that not the point? We know Mr Tamihere is on record as saying it could be up to 10 percent of the foreshore and seabed of New Zealand. I say and John Tamihere says it could be a lot more. That is the problem with regard to this bill. 
RUSSELL FAIRBROTHER (Labour—Napier) 
: 
 That was a most interesting exposition of one of ACT’s views on this bill. The other ACT view I quite like is contained on page 15 of the report of the Fisheries and Other Sea-related Legislation Committee where it states: “It is our view that this bill insults the rule of law by failing to uphold the sanctity of property rights …”. Well what is a customary rights order? It is bundle of rights. A customary right is a bundle of rights that varies from hapu to hapu from use to use. It is a bundle of rights that is non-exclusive and not necessarily territorial that does not require contiguous land and that requires physical activity as well as maybe a spiritual connection.  
The rights are in fact rights that exist and that have existed since at least 1870 in the case decided by Chief Judge Fenton in the Kauwaeranga case. Unfortunately by a drafting accident it seems in 1909 they were removed from legislation and in 1993 they were even further blocked by yet another drafting mistake. 
Sitting suspended from 6 pm to 7 pm 
RUSSELL FAIRBROTHER 
: On 4 November this year which is almost 14 days ago the National Party was in effect supporting this part. In case members opposite have forgotten as one would expect from listening to the leaderless debate in this Chamber I take them to page 12 of the select committee report which states: “New Zealand National supports the recognition of customary rights. However such rights should not be allowed to impinge unduly on other rights and activities in the foreshore and seabed.” That is exactly what a customary rights order is. It is non-territorial and non-exclusive. It is a bundle of rights—rights that have been in existence since before 1840 that are at present in existence and that will continue to be in existence under this bill. So it is no wonder that National is without leadership on this issue because 14 days ago that party put its position in writing and of course today no leader will speak in favour of that remote position.  
Hon Dr Nick Smith 
: It has been completely changed. 
RUSSELL FAIRBROTHER 
: They have completely changed yes. They are worried about gates under the sea when the issue here is really about a bundle of property rights.  
ACT says that property rights are sacred. I have to say that “sanctity” is an unusual word to use in association with property rights. This bill absolutely delivers on property rights because a customary rights order is precisely that. It is a bundle of rights that attaches to land that is not exclusive that is non-territorial and that does not require contiguity but does require continuity. They are property rights that have been recognised by our courts from way back in 1870 but that by some omission were left out of the 1993 Act. That was pointed out to us by the judges in the Ngati Apa case. We have now put them back in this bill reinforced and accepted quite clearly by the National Party in their view on page 12 of the select committee report.  
So we are wondering what this debate can really be about. Is it about ACT’s contention that the rights are Maori rights? But then again how could a customary rights order that has been in existence since before 1840 be other than a Maori order a Maori right? In case there is that possibility the bill provides for it to be also for non-Maori. So logically there should not be any criticism from either the ACT party or from our leaderless friends across the Chamber in the National Party.  
What this bill does do of course is to open the route for a conventional customary right to be easily investigated at less cost. It takes it back to the Maori Land Court and that satisfies the constant plea from so many submitters who came before the committee saying: “No Parliament should tell us what our tikanga is.” Of course no Parliament will tell iwi hapu or whanau what their tikanga is because the Maori Land Court will decide that on the basis of the facts advanced by each individual iwi hapu or whanau. So this Parliament is not determining what a Maori tikanga is in this instance. It is that very tikanga that determines the customary rights order that can now be determined in the Maori Land Court. This legislation puts the world back in order.  
Dr WAYNE MAPP (National—North Shore) 
: 
 It is certainly true that National does recognise a place for customary rights. The deputy leader of the National Party set out the circumstances in which they should be granted. He said specifically that it should be through the process of treaty settlements. National has used that process in the past in the Ngai Tahu settlement.  
I want to turn to a particular point which is the provision in the bill that these customary rights are to be considered through the Maori Land Court. That is the vehicle that is supposed to determine whether customary rights are to be granted. I have to ask whether that is the right vehicle. The Maori Land Court was set up for very specific purposes. In fact I am aware that members of the New Zealand First Party know that in detail. The Maori Land Court was set up specifically to deal with Maori land thus essentially to deal with disputes between Maori and Maori as to who are landowners and who have various rights and more recently to deal with mandating issues under section 30. It is all well understood and accepted and that is precisely the purpose of the Maori Land Court.  
In this instance however—and the Government would say this itself—we are talking about the public estate for all New Zealanders; the foreshore and seabed owned by the Crown on behalf of all New Zealanders. National does not have any dispute with that proposition. We support it. So the question is whether a court that is set up essentially to deal with Maori issues as between Maori and Maori should then be vested with a general power to deal with matters between the wider public—of which Maori are a subset—and specific Maori issues. I say no it should not. That is not the right vehicle.  
If this is the intent of the Government in dealing with this issue then the right vehicle would have been the High Court. The reason for choosing the High Court is that it is the court that acts for and is available to all New Zealanders. We can see this in the processes set up in the various schedules in relation to the Maori Land Court. Only persons who have specific interests—and that primarily will be Maori—will in fact be able to appear before it. I guess realistically that that will also include district and regional councils. The general public is effectively excluded.  
So we say that at a fundamental and principled level—and this is not a comment about individual judges or anything of that nature—the Maori Land Court is simply the wrong court. If the Government was determined to go down that path it should have chosen the High Court. That is proven by the fact that only the High Court can deal with the territorial customary rights orders set out in Part 2 and there is a reason for that. It was recognised that the High Court had that broader general expertise and interest to deal with those issues. In some respects I think that the chair of the select committee acknowledges that fact. Similarly of course in terms of general customary rights orders under clause 61—the only one we have an example of apparently is the Auckland anniversary regatta as if that protection were actually needed—they would also be dealt with by the High Court. It seems to me that on a principled basis we should have a seamless jurisdiction for that kind of thing. The High Court as has been noted with its inherent jurisdiction and interest for all New Zealanders and with its particular expertise established in that regard should be the court for dealing with these matters—if one is to choose a judicial approach to these issues. It has the right expertise. Issues have been raised by members on the other side of the Chamber. What about the issues of tikanga Maori? 
Hon Dr MICHAEL CULLEN (Deputy Prime Minister) 
: 
 I had not realised that during one of my very frequent absences from the Chamber today the deputy leader of the National Party had unburdened himself of a legal opinion—that customary rights should be dealt with through the Treaty of Waitangi claims settlement process. I have to say that if that assertion were made and it was certainly made on his behalf by his legal counsel Dr Wayne Mapp then it is perhaps the most peculiar assertion made so far in this extraordinarily peculiar debate.  
 The treaty claims settlement process is as its name suggests—even to members of the National Party—about the settlement of treaty claims.  
Hon Member 
: No! 
Hon Dr MICHAEL CULLEN 
: Yes! Treaty claims arise from treaty grievances. The treaty grievance that would arise in the instance of customary rights is that they had been abolished at some point in the past by improper action on the part of the Crown. If they have been abolished they are no longer customary rights because an essential test of a customary right is that it endures to the present day reasonably uninterrupted.  
It is certainly a potential treaty claim if the Crown has acted in an improper way that has interrupted people’s ability to claim customary rights—the member is absolutely right on that—but the process of the recognition of existing customary rights cannot possibly be via the treaty claims process. If that is what the National Party’s great cogitations about the legal basis of this has led to then Dr Mapp should definitely stick to tax law and not get into those kinds of areas at all.  
A customary right is a common law right that existed in 1840 at the time of the assumption of sovereignty and has continued reasonably uninterrupted down to the present day. That is the great issue of moment for the National Party and we finally come down to what its core problem is: it believes that customary rights orders in relation to Maori should be applied for through the High Court rather than through the Maori Land Court. That is what the die-in-the-ditch fighting of this bill has all been about to this point.  
The issue there is that in the previous part the National Party opposed the fact that the High Court can go to the Maori Appellate Court for a ruling on tikanga matters. If the High Court cannot go to the Maori Appellate Court for a ruling on tikanga matters it would be extraordinarily difficult for the High Court to have the expertise to deal with applications for Maori customary rights orders.  
I suggest that the National Party goes back to the drawing board again and thinks about some kind of reasoned-principle objection to this bill. At least the ACT party has one: it is purely to allow current processes to run around the relationship to property rights. That at least is a reasoned process. I think it is wrong but the National Party has yet in this entire debate over many many hours to put up any sensible argument at all—not at any single point. 
Hon RICHARD PREBBLE (ACT) 
: 
 I agree with the Minister that the National Party’s attitude towards this bill has some inconsistencies and that has come through in some of its speeches. However it is the National Party’s problem—it is in Opposition.  
Let me turn the Committee’s attention to what is really the heart of the difficulty with this bill. I could take as an example any one of the clauses that include the phrase “tikanga Maori”. For instance new clause 42(1)(b)(ii) states: “has been carried on exercised or followed in accordance with tikanga Maori …”. We then have to ask what “tikanga Maori” means. To do this we have to go to different legislation where we find that those words simply mean “Maori customary values and practices”.  
The Committee should realise how uncertain that phrase is. I do not want to be politically incorrect but let us point out that Maori customary values with regard to property in 1840 and for some time afterwards meant that one could acquire property by conquest. Are we really passing a bill that says that is the way to decide on who has the foreshore? Under that argument Maori could say that they went back and conquered Takapuna Beach last week. That is a Maori customary value and that is what the law will now say—[ 
Interruption 
]  
They have done it since 1840. The member says “since 1840”. That is true but the point I make is this—and I say it to Mr Dail Jones quite seriously: 4 years ago when Parliament was looking at different land legislation some High Court judges appeared in front of the Maori Affairs Committee. They said they would interpret anything but if Parliament put into legislation phrases like that one difficulties arose. The particular example then had to do with the Otago Harbour Board which had a foreshore problem because of a claimant who said that his ancestor had literally urinated over the area and that had given him some cultural claim. The court said that the difficulty was that the legislation Parliament had given it was so vague that the case had cost hundreds of thousands of dollars.  
Members have probably forgotten the case but I now hear some members say that we cannot put into law what Maori customary values are. That is an arrogant piece of nonsense. Why do I say it is arrogant? We took the common law principles—members should go back and look at them; in fact I quoted them to the Committee earlier with regard to clause 21—one of which is that one has to have exercised a customary activity continuously. If we as a Parliament are capable of doing that we should be capable of setting out in law what the customary values will be. Why should we do that? The reason is that we cannot have certainty—we cannot have the rule of law—unless everyone knows what it is. We are now passing a law whereby no one knows what it is—no one. There are even Maori members getting up and boasting about the fact that no one knows what the law will be.  
We also know—and I agree with Mr Dail Jones on this—that the Maori Land Court has become highly politicised. It is not really the court’s fault; I think it was a mistake to put those judges on to the Waitangi Tribunal. But Maori Land Court judges now make political speeches. They make speeches that make the Maori Party look moderate. We are handing to that group of activist judges who make the word “activist” seem passive a clause that will mean—and we all know this—whatever those judges decide it to mean. Then the judge will say that the right has to be exercised if the customary activity is “substantially” uninterrupted. What does that mean? I can hear somebody say: “Well in Maori terms 150 years is nothing.” 
Hon Dr NICK SMITH (National—Nelson) 
: 
 I will follow on in the same vein with the points made by Richard Prebble but with regard to clause 43B. This is a completely new clause. In all the debate around the Foreshore and Seabed Bill the whole issue of wahi tapu has not yet been introduced. Clause 43B includes the capacity for the Maori Land Court to declare areas of the foreshore and seabed as wahi tapu and then—going back to an earlier part—to provide for the exclusion of the public from those areas and for the appointment of wardens.  
The first thing I say to the Committee is that it is a complete tragedy for this Parliament and it shows the arrogance of this Government that it would impose under urgency a provision that was tabled only last evening which will be law before the end of the week. That is an absolute— 
Dail Jones 
: That is not correct. 
Hon Dr NICK SMITH 
: Clause 43B is a new clause I say to Mr Jones and it provides for wahi tapu.  
Wahi tapu is defined in the Historic Places Act which gives it a definition that we could drive a bus through. It is as broad as one would like. I think New Zealanders have a common-sense respect for burial grounds. But let us be realistic. Will there be burial grounds in the foreshore and the seabed? The seabed is a particularly difficult place in which to have burial grounds. 
Hon Member 
: Not for whales. 
Hon Dr NICK SMITH 
: Because those provisions are so riddled with politically correct phrases around Maori spiritual values maybe whales can be imposed within them. However where there are burial grounds—wahi tapu—in the foreshore and seabed it will enable the public to be excluded.  
The leader of New Zealand First came down to the Chamber and said that there would be absolute right of access everywhere in respect of the foreshore and seabed. That is not true. There is very specific provision in the bill against it.  
 I would simply like the Minister in the chair to answer the question of how it is possible to have a wahi tapu—based on the definition provided by Waikato University’s Maori affairs department that refers quite specifically to it being a burial ground of human remains—in the foreshore or seabed. There is absolute silence. He has no damn idea at all. Yet again we are being asked— 
Hon Dr Michael Cullen 
: Swearing little man! 
Hon Dr NICK SMITH 
: The Minister in the chair expects Parliament to ram through this legislation that will introduce wahi tapu into the foreshore and seabed and will specifically exclude the public. [ 
Interruption 
] I say to Mr Jones that it will exclude the public. The provisions are very clear about that.  
With such a wide definition of wahi tapu how do we know what its extent is? How wide is it? We know from our experience with the Historic Places Act that there have been problems all over New Zealand with wahi tapu. Areas of hundreds and hundreds of hectares have been set aside as wahi tapu so much so that the Government has announced a review. Yet the Government is relying on the definition of wahi tapu on land that it has got itself in trouble over to be the definition in this Foreshore and Seabed Bill which will see the public excluded.  
I simply want some member of the Government to explain why the Maori Land Court will determine wahi tapu in the foreshore and seabed. We already have a process whereby the Historic Places Trust is able to declare wahi tapu. Why do we want a dual process? 
Darren Hughes 
: We already know it’s wahi tapu. 
Hon Dr NICK SMITH 
: The chippy member from I think Otaki—I cannot remember his name—says that that is intended. He says that it was always the plan to have those two different forms of wahi tapu: one through the Historic Places Trust and the other through the Maori Land Court. I do not see any logical reason for doing that. I think it will simply add to the confusion. I do not know why it was not in the original bill. It involves the specific exclusion of the public from areas. Certainly the new wardens that will be involved will have the power to exclude the public. I say that there is no case that can be made for wahi tapu in the foreshore and seabed. 
Hon DOVER SAMUELS (Minister of State) 
: 
 To enlighten some of those members across the floor about wahi tapu perhaps I can share a couple of things with them. First of all I have just finished watching what was the  
Holmes 
 show. John Tamihere and Ken Shirley were on that show. I acknowledge my colleague John Tamihere because he put the facts of the bill before the New Zealand public. Ken Shirley who was somehow in his fantasy land started talking about taniwha. He said that the New Zealand public could expect taniwha running up and down the beach without any clothes on. He said there would be taniwha all over the place sitting on the rocks and running up and down the beach. He said that that is included in the bill. I relay to the member Nick Smith that the clause protects and gives Maori protection for wahi tapu that are already established on the foreshore and seabed.  
Hon Dr Nick Smith 
: Where? 
Hon DOVER SAMUELS 
: There are a number. If the member listens and wants to know I make an offer that I can reserve a space for him in some of the wahi tapu that I know. There are very old burial grounds that have been subject to accretion. They have been subject to the tide movement. The tide at the beaches has come on to many wahi tapu right around this country. Those wahi tapu need protection. They need recognition. The protection offered to them in this bill means that people cannot just run over them with their four-wheel drives. I know that that member would probably take a four-wheel drive bulldozer to dig some pipis or something like that.  
Hon Dr Michael Cullen 
: Or take his tractor. 
Hon DOVER SAMUELS 
: That will prohibit him from taking his tractor with a trench digger to dig up some pipis.  
In my view this is very practical and very simple. I cannot understand that when we start talking about wahi tapu every party starts frothing at the mouth. The member over there jumps up and down about it. I put it this way: if there were a Pakeha wahi tapu we would support that. [ 
Interruption 
] I suggest that perhaps the member wants to go out and find the origins of his ancestors instead of this jumping up and down about wahi tapu and taniwha—having a korero and a fit about what Maori spiritual and cultural values mean. Good God! We are in New Zealand. We Maori respect some Pakeha spiritual values—Merry Christmas Happy New Year and Father Christmas. We respect that. I know that that member always sits at the bottom of the chimney waiting for Santa Claus to come down and fill his stocking. We acknowledge that.  
But when we as Maori people ask members to think about the things we hold dear in terms of spiritual values that is shocking! They talk about taniwha running up and down the beach and all that type of stuff. Let us get real if we are to have a debate about this bill. I know that underneath it all some of those members—at least those who have been defrosted—actually support this bill.  
I know that Georgina te Heuheu is very lonely sitting at the back of the Chamber. There is a word for that. It is called mokemoke—loneliness. “Loneliness is a time in your life.” I feel sorry for Georgina te Heuheu because I see that she is lonely. Do members know why? It is because her people Ngati Tuwharetoa support this bill. It gives them the right and the recognition. I say to the member across the floor that even Ngati Tuwharetoa have wahi tapu. We have to protect them even though the wahi tapu are beside their lakes. We give recognition to them. We go to the Maori Land Court. It is not a humbug wahi tapu. It is not a Clayton’s wahi tapu. We go to the Maori Land Court to prove that a place is a genuine wahi tapu so that it can be given the appropriate recognition under this bill. What is wrong with that? 
RICHARD WORTH (National—Epsom) 
: 
 When the tumult has died I will talk about Part 3 of the Foreshore and Seabed Bill. I will not join with others in expressing the justified outrage at the process that has been followed but wow do we see it writ large in Part 3! Here is a part of 22 clauses; 15 of them have been repealed and there has been no public process leading to that outcome. It is absolutely lamentable. It is a reflection on Dr Cullen who sits in front of us now for interrogation.  
I ask the Minister two things and invite him if he can to respond to them. There is nothing like a challenge perhaps to set the good doctor’s brain in action. The first issue I raise with him relates to new clause 35. Why does clause 35(1) which deals with the jurisdiction of the Maori Land Court refer to the public foreshore and seabed? Should we not be talking about the public foreshore or the seabed? The Minister should surely be aware that when we are talking about the seabed we are talking about areas that go way out to the very edge of the territorial sea and maybe beyond. That is the first question.  
My second question relates to new clause 41 “Limits to jurisdiction of Maori Land Court under this Part”. Clause 41(2) states in respect of customary rights orders that the physical activity or use must be related to “a natural or physical resource.” I was lucky enough to hear the comments Dr Cullen made tonight in the context of the launch of a new New Zealand dictionary. It would be helpful if we had some explanation as to why it is necessary to use the phrase “natural or physical resources”. Is it not the case that all physical resources are natural? These issues emerge in hurried drafting of legislation. In the Resource Management Act where these concepts are well articulated such foot faults do not occur to the same extent.  
For those who listen on the radio to what is going on in relation to the foreshore and seabed I say this legislation is convoluted and complex. The exact scope of the arguments that can be made in respect of it are probably not yet identified. An issue in Part 3 is who should own and control the foreshore and seabed. The foreshore as others have explained is that area of beach covered and uncovered by the tide. So owners who have riparian rights down to the tidemark are unaffected by what the Government proposes in this legislation.  
But I believe—and I am certain I am right—that many in the community are now wholly confused about what the Government is trying to do. If they are concerned then they certainly should be. It is estimated by others including the honourable John Tamihere that about 10 percent of the coastline will be affected by far-reaching proposals that could give management responsibilities to iwi and hapu groups.  
In essence it is proposed that the Crown own the foreshore and seabed subject to Maori custom. There are two basic concepts. Maori can claim territorial customary rights. That is outside this part so I do not take the issue further. The second concept which is directly at issue in connection with Part 3 is that Maori can secure customary rights orders based on tangible activities on the seashore. I say to members of this House that all of this overlooks the reality of a community where Maori and non-Maori have substantially intermingled. 
JOHN TAMIHERE (Labour—Tamaki Makaurau) 
: 
 I want to make a few observations by way of edification to teach the Opposition a few lessons about why wahi tapu exist and how they exist in this country. It is a shame that in 2004 members opposite have not taken the time to be respectful tolerant and knowledgable enough to identify with the Maori population.  
I turn to wahi tapu. Much ado was made as usual by the Hon Dr Nick Smith in regard to wahi tapu using an instrument called the Historic Places Trust. In this piece of legislation we are as usual bringing certainty stability and closure. A very certain process has been put in place to investigate a whole range of these issues. Why wahi tapu? In terms of the peoples whom I whakapapa to on the coast around this country always before Christianity applied we buried our people in and around the coastline particularly in the sands. Every one of us who whakapapa back to one of those beaches has a sacrosanct wahi tapu. I would not go into a white community’s cemetery and walk over the headstones of its people. I would not do that and I do not expect you to walk over the top of our people when I can actually identify where we buried them. 
Dr Muriel Newman 
: I raise a point of order Mr Chairperson. I think you were being brought into that debate in rather a negative manner. 
The CHAIRPERSON (H V Ross Robertson) 
: I thank the member for drawing it to my attention. I am sorry; I was otherwise engaged. If Mr Tamihere brought me into the debate then he will desist. 
Simon Power 
: I raise a point of order Mr Chairperson. I say this because the debate has been interrupted. We had an incident earlier this evening when a long and protracted discussion occurred around interruptions and interjections whilst people were taking points of order. We have just seen a recurrence of that from Government members whilst Muriel Newman was on her feet taking a point of order. I ask you to make sure that the groans and yells from the Government when someone takes a legitimate point of order under Standing Orders are kept in check. 
The CHAIRPERSON (H V Ross Robertson) 
: If that is the case then it is unacceptable. I caution members and ask them to desist. 
JOHN TAMIHERE 
: Is it not a great statement in this Chamber and is it not interesting that Muriel Newman got to her feet and took a point of order while we are dealing with a very important issue on which her party continues not just to confuse but also to absolutely consciously and in a premeditated way override Maori rights?  
I turn now to conclude on wahi tapu which is a very important issue. Inland tribes have either caves special trees or special areas where they have interred their people. In our people’s way we have a hahunga which is when we go and lift up the bones of our people and take them to another wahi tapu area. That is the reality with the wahi tapu of the coastland peoples as with Tuwharetoa—it resonates around that lake as it does around the coastline. The fact that Muriel Newman does not want to acknowledge them tolerate them or accept them is bad news for the ACT party. This legislation brings in a process of identification for the first time if Maori desire to come before it. They are not being forced to if they do not want to.  
I turn now to new clause 41 which puts it beyond all doubt. Subclause (2) states: “A customary rights order must not be made in respect of an activity use or practice on the basis of a spiritual or cultural association unless that association is manifested by the relevant whanau hapu or iwi in a physical activity or use related to a natural or physical resource.” How much more constrained and defined do we Maori people have to be before we have to prove our rights? People rock up here every day and hear the Speaker give a wonderful karakia a wonderful piece of Christianity. The fact that we might not be able to see hear or understand these things does not make us all animists as we are blamed for being by the ACT party and it does not make us lesser peoples.  
It is about time we started to tolerate and respect one another. I just ask members opposite to start to do that. This is a great nationhood story and it should not be destroyed tonight by lack of tolerance of lack of respect for and lack of acknowledgment of members’ Maori brothers and sisters. I say to Muriel Newman that by the year 2080 there will be few full-blooded Pakeha left. All of the Pakeha will be beneficiaries of this legislation—and God bless them. 
Hon GEORGINA TE HEUHEU (National) 
: 
 Part 3 deals with the jurisdiction of the Maori Land Court in relation to customary rights. It is part of the problem that I referred to in an earlier contribution. We could say that this is very simple legislation. It upholds the mana of Maori—which is the way Mr Winston Peters described it—and it also gives all New Zealanders unimpeded access to the foreshore and seabed. That is fine. It would be great if that was how the bill stood. But we see the reality once we get into the detail of the legislation.  
We dealt with the High Court earlier and now we are discussing the Maori Land Court. When I look at some of the detail I have to ask—and perhaps Dr Cullen might answer this—how we can reconcile the issue extant in clause 6 which confirms people’s rights to come and go on the foreshore and seabed with the fact that provision has been made in Part 3 for Maori to prove their customary use and customary rights. It looks good on paper—although having said that I do not think that is a correct assertion anyway; it still looks complex and mangled on paper. But I ask Dr Cullen how we really reconcile those two overriding principles.  
One or two people have already rung me this afternoon to comment on the provision that John Tamihere has just commented on. It looks as if Maori could get customary rights orders but when we look at the limitations in the provision we see that it is very questionable whether they would get them. When we consider the overriding principle of the bill which is to give confirmation to New Zealanders that through the Crown they own the foreshore and seabed and have access to it then I think it becomes very difficult to see how this will all work out on the ground. I just wonder whether the Government has thought clearly about that. We have already heard this afternoon about Maori up north and no doubt it will happen in other places. They will say: “We have customary rights here. We might not have been to the court to get them proven yet but we have them.” So maybe we will see some blocking of that access as time goes on.  
I still have a real problem with how we reconcile the overriding principle set out in new clause 2A clause 6 new clause12 and some of the other clauses in Part 2 with provisions that look as though they will freely recognise Maori customary rights yet when we look at the limitations and the detail of them we see that that will not be so. If the Hon Dover Samuels takes another call which I hope he does I want to ask him—as I asked before—about Matauri Bay. It is part of his whenua and is where no doubt a lot of customary activity in accordance with the way he sees it was carried on. Will access by the public be unimpeded in that area? I think that the provisions in Part 3 would apply specifically to that area. It does make me wonder whether there would be a proper reconciliation so that when other New Zealanders go up to Matauri Bay they will go into that lovely settlement and feel absolutely confident they can use the foreshore and seabed that adjoin the land that I think the honourable member owns.  
I say to Dr Cullen that that is my difficulty. I think that the Minister in the chair should give some reassurance that the orders the Maori Land Court will be able to grant will not impede access for other New Zealanders. 
METIRIA TUREI (Green) 
: 
 One of the Green Party amendments is to insert a new clause 43AA into this part. That clause proposes that the rights are inalienable and that no person can: “alienate or cancel any interest in an ancestral connection order customary rights order or territorial customary rights.” We were very concerned—and we raised this at the Fisheries and Other Sea-related Legislation Committee as well—that customary rights orders can be very easily cancelled. The bill provides that once cancelled they are extinguished forever.  
Customary rights are very difficult to get of course. One has to pass very high thresholds. One effectively has to have carried out an activity since 1840 that has not in any way been interrupted or interfered with by any enactment or rule of law or interrupted by anything as simple and fleeting as a resource consent. Once one has passed those high thresholds to get the customary rights order one can then go through a very easy process to cancel it. Basically if the holder of the order is an authorised person—and that person’s name is on it—has given notice to the other people who are affected by that order has held a hui about it and there are no meritorious objections that order can be cancelled very easily. The application the holder must make has to include the reasons for the cancellation what process the holder wants to carry out for consultation and some statement indicating how much support the holder may have from the community affected by the customary rights order. That is so easy to do with very very few people in support. One has only to look at how few people can support and vote for treaty settlements and governance entities that are accepted by this Government and one will see just how easily the numbers can be managed in such a way that very few people who are affected by and entitled to the exercise of that customary right need to be involved in order to cancel it forever.  
A customary rights order sets out the customary rights that those people their children their grandchildren and generations to come are entitled to exercise by right of their whakapapa from their tipuna from mai rano. They have those rights and it is not appropriate that they can then be so easily on a simple application to the court cancelled and extinguished forever. There are no provisions in this bill to protect that customary rights order. There are no provisions even to indicate whether anyone can object to its cancellation after it has happened and reinstate it—those processes would not work and would not be effective. I imagine that those people would have to take judicial review action in the High Court for that change to occur. The people who will get customary rights orders—if they can get them—will not be people who have the resources and who can spend money on a High Court action in order to reinstate the customary rights that they have already spent so much time money and effort getting.  
There is a series of Green Party amendments. They delete the capacity to cancel customary rights orders in the bill entirely and they make sure that none of those rights can be cancelled or extinguished once they have been identified. If John Tamihere is right that the Government’s intention in this bill is to protect customary rights there is no justification for enabling their cancellation and extinguishment forever by a means as simple as a written application to the court—a process that does not even have a voting requirement in it. There are no numbers in the bill’s provisions to state that there would have to be more than 50 percent support for the cancellation. It could even be the case that those orders could be bought out.  
That is not the whole point. If one wants to trust the Government on this bill one can listen to its members who say that the whole point of the bill is to protect those rights and to identify and keep them extant through common law provisions—but clearly that is not the case. The Government has made those rights exchangeable and tradable and that goes directly to the heart of the bill. The whole point is to protect the foreshore and seabed from being tradable and saleable and to protect customary rights from being extinguished so as to enable Maori to continue their activities and engage with their customary activities over time but this bill fails us. 
EDWIN PERRY (NZ First) 
: 
 With regard to my hapu in the Wairarapa Ngai Tumapuhia Arangi which is based on the Wairarapa coast I believe that their time has come to be able to identify their customary rights to their coastline. Most Maori and most hapu on the coast do know their boundary lines. In the Wairarapa quite clearly Ngai Tumapuhia’s boundary line is from the Whareama River to the Awhea River which is just south of Carterton on the coast.  
Prior to this bill their rights in respect of their customary right was just an airy-fairy agreement quite frankly. I am now endorsing this bill which will be able to identify the hapu’s right to the coastline. It will be no different from the Scottish side of my ancestry which can identify the clan side of my heritage. [ 
Interruption 
] I am quite happy to tell the National Party members who are being disorderly who endorsed the mess-up of this whole thing. I have a property at the beach and last Christmas I put up a sign that said: “Return the foreshore and seabed to the Crown.” It was no different from what the National Party was saying. People were going past honking their horns. Even tangata whenua were coming and saying: “Yes Edwin we agree with you because some of our people if they got hold of it would be selling it off.” This is no different from what happened to our tupuna 100 to 150 years ago who did sell off a lot of the land along the Wairarapa coast. Quite frankly I feel ashamed that from Castlepoint right round to Turakirae Head here in Wellington the Wairarapa Maori own very little of the land that runs down to the foreshore and seabed because it has been sold off. I want to say to Maoridom that they are still doing it and they will still do it. 
Opposition Member 
: That is good! 
EDWIN PERRY 
: Well that is fine but what happens now when they have nothing left? I have sat here all day today listening to the drivel from the National Party and the Green Party. I say to National members that their resource management legislation of 1991 caused this mess. I want to tell them that their party members are coming to see me and ringing me asking why the National Party is not supporting this bill. National members are not supporting it because it is not their bill—it is sour grapes. They have twisted the whole thing round to a racist issue around New Zealand First. That is the only thing they have done. Actually it is a disgrace that National members have taken this angle. If it had been their bill they would have been right with it. It is the sour grapes that have got those folks and that is it.  
I want to talk about access because I am talking about my hapu here. I heard today that certain Maori people are going to stop people going to the beach this summer. I tell members that I have had more Pakeha come to see me in my office in the Wairarapa saying they have been stopped going to the beach by their own people but they have never ever been stopped by Maori. [ 
Interruption 
] Yes I agree that there will be some Maori who will do that but in the Wairarapa in my own area it has not happened with Maori. I will give an example. There is a block of land a prime beach site resort on the Wairarapa coast at Riversdale and my local people my hapu were conned out of it because of collusion between the local farmer and the county council. The local hapu were told that they would never be able to build on that land and that they needed to sell it. As a result of collusion between the county and the farmer the land was bought off the hapu and now there is a $500000 home on that land.  
Members talk about Maori people stopping people going to the beach but Pakeha are just as bad in the Wairarapa. What did Mr Riddiford do? He was charging the cray fishermen a fee to cross Maori land to launch their boats. Members want to talk about access—I have given two good examples.  
Hon Dr Michael Cullen 
: And he was a good Tory! 
EDWIN PERRY 
: Yes it is a good story. The member is dead right. 
Hon KEN SHIRLEY (ACT) 
: 
 I want to address Part 3 and in particular clause 35 which is about the jurisdiction of the Maori Land Court in respect of Te Ture Whenua Maori Act. I would like to respond to some comments made by John Tamihere and Dover Samuels in this debate because they claimed that ACT was saying that taniwha and tikanga Maori would be abused. I take the point that John Tamihere made. I would like to think that all New Zealanders were respectful of genuine urupa sites. They are real they do exist; and it behoves us all to be respectful of them. I agree that many New Zealanders are not as respectful as they should be.  
The difficulty is that when we pass general laws like this which are essentially an amendment to the Resource Management Act and give wide powers we should not be surprised when they become a moving feast. I ask members opposite how they explain the taniwha that held up Transit New Zealand on State Highway 1 at Meremere. How do they explain that? These same provisions of acknowledging Maori spiritualism etc. were abused grossly abused and how many people in the Chamber know how much Transit New Zealand had to pay to make that taniwha go away? The interesting thing about taniwha is that if one pays enough money they will go away. One pays a bit of money here and they go away but then they pop up somewhere else. That is the problem with this sort of legislation.  
I believe that spiritualism should be respected and in a tolerant society everybody’s spiritualism should be protected. But it is not the role of the State to try to define and codify spiritualism including tikanga Maori and that is what this bill is all about. That is why every iwi that came to the Fisheries and other Sea-related Legislation Committee was so offended by the temerity and the arrogance of this controlling Government to define and set limits on tikanga Maori. We have Father Christmas the Easter bunny leprechauns and hobgoblins but we do not legislate for them. We do not legislate for the tooth fairy nor should we because they are moving feasts. That is the problem with the Resource Management Act today. It is meant to be the sustainable management of natural and physical resources but all of a sudden we have all these unnatural and metaphysical nebulous things that we have to bear in mind.  
Now we are setting up foreshore and seabed reserves and the Labour Maori caucus members told us in the  
New Zealand Herald  
this morning that it will be 10 percent of our foreshore and seabed.  
Brian Connell 
: How much? 
Hon KEN SHIRLEY 
: Ten percent and that is on day one—that is just for openers. Members should not be surprised when we have nonsense legislation like this and provisions that are based on spiritualism that some people—not all people—will abuse it. We had the wahi tapu at Welcome Bay in Tauranga which I am very familiar with. The matter involved private property and a local group claiming guardianship imposed a wahi tapu through the Historic Places Trust. They claimed urupa. The urupa turned out to be an old 1920 fence line but it was very convenient for that particular group to try to restrict and control the use of that private property. That is the sort of thing that this nonsense legislation invites.  
The ACT party asks why Maori are denied due process through the courts to get a real property right because that was what was really at stake. The Court of Appeal indicated that this situation would not be widespread that it was rare. Maori should at least have retained the right to establish a full and proper property right which the ACT party would have supported. But it is this nebulous ill-defined property right that caused the problems. It is things like the Resource Management Act which is socialist legislation for confiscation on nebulous concepts. No one knows what it means. It can mean whatever we want it to mean. However property rights are clear and can be respected. If there were specific important urupa sites then I would like to see them in a clear protected property right. That is how they would be properly protected. 
BRIAN CONNELL (National—Rakaia) 
: 
 I say to the laird of Riversdale Mr Edwin Perry that his speech had passion in it if nothing else. It was in stark contrast to the speech that I had to sit through and listen to when Mr Dail Jones took a call just prior to the dinner break. It was so dull that I now know why Rip van Winkle went to sleep for 100 years. This guy would have us believe that the only reason that 1840 is the date that everything must work off is because it is the law. I ask Mr Jones why we do not just think about having law that evolves to reflect the make-up of our society now. That is what we should be doing. I say to Mr Dover Samuels while I am at it that non-Maori New Zealanders do have some spiritual beliefs but the difference between the way we want to practise those and the way he articulates the case for Maori is that he wants every day for Maori culture to be Christmas Day. We do not buy that. 
 I have to say also that when Dr Cullen was on his feet he asserted that the problem with the National Party is that we do not know what our argument is. I respond to Dr Cullen by telling him that the real core problem is that he is rushing through this House legislation that has the potential to disenfranchise 90 percent of New Zealanders from their traditions.  
Darren Hughes 
: How? 
BRIAN CONNELL 
: Mr Hughes is calling out. I suggest he goes outside puts on his first pair of long trousers and then comes back. Then we will take him seriously.  
Darren Hughes 
: Answer my question! How? 
BRIAN CONNELL 
: The member should go away and come back and then we will take him seriously.  
Darren Hughes 
: How? 
BRIAN CONNELL 
: The member is yelling out: “How?” He is telling us now through this legislation that ancestral connection will disappear but on closer scrutiny— 
Hon KEN SHIRLEY 
: Clause 31. 
BRIAN CONNELL 
: —yes clause 31 as one member has called out—it is not disappearing at all. All he has done is a sneaky back-door deal with New Zealand First somewhere around Courtney Place. They certainly work—they might miss their meal breaks but they never miss their drink breaks. When they were working through that they failed to tell us that they have put the ancestral connection through the Resource Management Act process. What it means is that they will be able to bring that provision in the back door any time they want. The Maori caucus has already accepted that premise as recently as last night. The caucus said it “will provide stronger recognition of the traditional association of whanau hapu and iwi with the coast than the ancestral connection orders initially provided for in the legislation.” It is coming from the Maori caucus.  
The great pity of all of this is that I do not believe any of it had to happen. If cooler heads had prevailed and people had taken time to read the appeal decision they would have seen that it did not state anywhere in that decision that Maori would get ownership of our foreshore and seabed. It never stated that anywhere. But rather than wait for due process the poll-driven Government which is now in cahoots with New Zealand First decided to legislate because it thought it would get some cheap votes as a consequence. But boy has that cost the Government dearly! The Maori caucus members know exactly what I am talking about. Their heads have gone down now and they are not so chipper. They know it has cost them dearly and it will probably cost some of them their seats. I hope it does. 
DAVID PARKER (Labour—Otago) 
: 
 I move  
That the question be now put 
. 
LARRY BALDOCK (United Future) 
: 
 First of all I will make a few comments in regard to Mr Ken Shirley’s earlier speech in which he clearly confused the Resource Management Act with this legislation. I do not disagree that there are still problems in the Resource Management Act regarding its application of the metaphysical—[ 
Interruption 
] Yes we understand that but this is dealing with the problem the member raised because the clauses that have been read out several times for the member to pay attention to state that customary rights orders must not be made in respect of an activity use or practice on the basis of spiritual or cultural association unless that association is manifested by the relevant hapu or iwi in a physical activity or use related to a natural physical resource. That has been read to Mr Shirley a number of times.  
We are grateful that that provision is in there but it is ridiculous to take it too far. It is right that we respect the spiritual values of Maoridom in this country when it comes to their burial sites and the things that relate to physical resources. That point has been made very clearly. It is interesting that the Minister in the chair David Benson-Pope is the Minister responsible for the Resource Management Act reform because United Future is concerned about the unresolved issues around the Resource Management Act when it deals with the metaphysical. But we will have that debate on another day.  
I will address the rest of my comments to the points that have been raised by Metiria Turei from the Green Party in regard to clause 49 “Application to vary or cancel orders”. I challenge members of the Maori caucus to respond to the points she made and the ones that I will raise also because they are good examples of the problems with the process. These are large alterations to the legislation. Quite frankly I would rather have heard from submitters on the issues rather than having them debated in the Chamber in this manner but since we are having the debate I think it behoves the Maori caucus members to respond to the concerns.  
The Hon Dover Samuels will remember that when we were together in the select committee we discussed these issues. We were concerned about how easy it was for a member of a hapu or iwi or even a whanau to be able to present themselves to the Maori Land Court and trade away customary rights orders without necessarily having the correct mandate. When we worked together on the previous legislation in the specially convened committee in regard to the Maori Fisheries Act it was the view of Mr Samuels—and I supported him in it—that we needed to make much tougher conditions on various mandated iwi organisations around the country before they could trade away their rights in terms of their allocation of fishery assets and so on. We made the conditions much more onerous because we wanted to protect as much as possible for future generations.  
I concur with and have sympathy with the points Metiria Turei raised. It still seems far too easy for someone to appear before the Maori Land Court and see those customary rights orders—which will take considerable effort to obtain—cancelled and traded away. I do not see why they need to be traded away at all. I do not see why they cannot enter into an agreement with someone who wants to carry out an activity that may have an impact upon their customary rights order without necessarily trading the order away completely. Surely it would be possible for there to be a recognised legal agreement to enable an activity to carry on for the length of a consent period without necessarily removing it for all time. Therefore if the activity ceased at some stage or the resource consent that was granted for the activity expired then the customary rights order would return to the hapu the iwi or the whanau and they would be able to exercise it again. I ask a member from the Maori caucus to take a call in the debate—we are far from the end of the debate on this part I hope—and respond to those concerns because if there is a need for further amendments I believe now is the time for us to address them. 
Hon HARRY DUYNHOVEN (Minister for Transport Safety) 
: 
 I move  
That the question be now put 
. 
SANDRA GOUDIE (National—Coromandel) 
: 
 I have been attempting to take a call since 7 o’clock this evening. I want to take up the point raised earlier in regard to tikanga Maori. New clause 42 “Determination of applications for customary rights orders” states in subclause (1) that an order may be made “in accordance with the provisions of section 42A” if the activity use or practice: “(i) is and has been since 1840 integral to tikanga Maori; and (ii) has been carried on exercised or followed in accordance with tikanga Maori” and “(iii) continues to be carried on exercised or followed in the same area of the public foreshore and seabed in accordance with tikanga Maori;” and so on.  
I share the same concerns that were expressed previously. I think it is inappropriate to have the words “tikanga Maori” here because the definition of tikanga in the Historic Places Act which is being referred to is “Maori customary values and practices”. Those values can mean any number of things. We explored the definition of tikanga Maori during the passage of the Building Bill. In that legislation a building consent can be assessed in accordance with tikanga Maori if someone appeals and wants a redetermination of somebody else’s consent. In my view that was absolutely inappropriate. Given the broad definition for tikanga Maori meaning “Maori customary values and practices” which will have precedence? Will “tikanga Maori” have precedence over those matters referred to in new clause 41 given that if it is integral to tikanga Maori that is part of the determination for a customary rights order? Given the breadth of what that could mean I firmly agree with the views expressed earlier that it is absolutely inappropriate for the term to be in a legislative document that the nation will be subjected to.  
I also refer people to new clause 43 which talks about the effects of a customary rights order and identifies that a commercial benefit from carrying out a recognised customary activity under the order is able to be entered into. So a commercial benefit can be gained from that customary activity under the order. Perhaps the Minister would take a call and explain what that actually means and how other people will be affected. Certainly it is interesting to note that a commercial benefit can be undertaken.  
In terms of the protection of wahi tapu I certainly agree that there needs to be respect for wahi tapu in some instances. However it is of concern when people in their largesse insist upon a wahi tapu of metaphysical form and impose that cultural belief upon others in the exercise of their private property rights through a resource consent—and make claims against their private property rights in the exercise of a resource consent costing those people thousands of dollars with no real justification other than that a song may have been sung on that site. A private individual was just about bankrupted from going about his lawful business because of a song claimed as a wahi tapu. It is absolutely abhorrent to this nation that cultural beliefs are being imposed upon people who do not share those beliefs. It is an absolute travesty that is being perpetrated in law by this Government and being constantly imposed on private property owners going about their lawful business. That has happened a number of times and has substantially affected people. I do not support having people’s cultural beliefs imposed on others. If people do not share them they should not have them imposed on them.  
In talking to new clause 43B with regard to wahi tapu I point out the provisions in subclause (3). 
GERRY BROWNLEE (Deputy Leader—National) 
: 
 I raise a point of order Mr Chairperson. I just wondered whether you had been able to see all the way to the back of the Chamber. Mrs Wong has been trying to take a call for quite some time. She does represent a specific constituency in this country and I think her contribution on this part should be on the record. I know it is usual for the call to alternate from one side of the Committee to the other but given the make-up today with all parties contributing I do not think it would hurt to give two calls to this side then perhaps conclude the debate on the part. 
Hon RICHARD PREBBLE (ACT) 
: 
 I think Mr Brownlee actually makes a very good point and of course this bill in terms of its Supplementary Order Paper is really a new bill. There is a solution of course and that is for the Chair to allow more speeches. I have to say now that Mr Brownlee has raised the point that Dr Muriel Newman has been in the Chamber all evening as well. She also has a point of view to make and has not had an opportunity to speak. Of course there is one solution that is quite obvious and it would be a very parliamentary one—that this debate be allowed to continue and not cut off by the Government. 
DARREN HUGHES (Labour—Otaki) 
: 
 Mr Chairperson you decide on who gets the call at the conclusion of a speech by a member standing up and seeking the call and by you recognising that person. You do not determine who gets the call by way of points of orders from members who give an opinion on who they think you should call next. Members should now seek the call and you should decide on who gets it in that way not by points of order. 
GERRY BROWNLEE (Deputy Leader—National) 
: 
 Mr Chairperson we have every faith in your ability to make decisions. Mr Hughes needs to recognise that yesterday at a particular meeting that takes place around here a very senior presiding officer indicated that extra time would be given on all these bills. So we are a little perplexed that the Government has decided to move to shut down the debate at such an early stage. 
The CHAIRPERSON (H V Ross Robertson) 
: I thank members for their contributions. I will decide when I take the closure motion. There are a number of guidelines I can use to make a judgment and one of them is Standing Order 102. 
CLAYTON COSGROVE (Labour—Waimakariri) 
: 
 I move  
That the question be now put 
. 
PANSY WONG (National) 
: 
 I would like to continue the theme that was brought up by my parliamentary colleague Sandra Goudie on the issue of customary values and practices. I guess nowadays a great number of New Zealanders do have respect for each other’s customary values and practices. But it does get difficult when it starts to form part of the legislative process. I was just reflecting on the Minister who is in charge of this bill the Hon Michael Cullen who on the 150th anniversary of the New Zealand Parliament criticised judicial activism. He was lamenting how Parliament passed legislation and the judges used their initiative to extend into areas that were beyond the intention—[ 
Interruption 
] I suggest the Labour MPs will soon become Opposition members as soon as the election is held and if they have something worthwhile to say they should take a call and explain that to the public.  
I was just saying how the Hon Michael Cullen was concerned about judicial activism and those who would not carry out the intention of the New Zealand Parliament after we pass legislation. But when we start to incorporate terms like “customary values and practices” that is when we actually start to relegate Parliament’s responsibility to the courts and let the courts make those decisions. Of course customary values and practices are really difficult. I used to be in Canterbury and I can assure members that Ngai Tahu has certain perspectives of their values and practices which will probably be different from some of the North Island Maori iwi or hapu. So who in effect is going to determine that when it comes to incorporating terms such as “paying respect” and “adhering to customary values and practices”? It is the courts. Is the judicial process going to be resourced to interpret that? What will happen if these customary values and practices change over time? We are raising very serious issues. Maybe the Minister in the chair David Benson-Pope would like to take a call and explain to the public whether the courts have developed enough common law cases to interpret and pay due respect. If we incorporate something in the law can that be objectively implemented? 
 There may be grievances. When judges try to interpret the legislation they may have more than one way of interpreting it. They may turn down a customary rights order and say: “That is not in accordance with that.” [ 
Interruption 
] I suggest that the member take a call. I am not belittling Maori customary rights and practices. I am just commenting on how the law works when it is codified. Today we are incorporating that in our legislation but what messages and what guidance will we give to our judges so that they will not interpret that contrary to the intention of the Parliament? How can anybody actually codify a set of customary values and practices? Do we have judges who are so learned? Do we have judges on the select committee? 
Hon Dover Samuels 
: Why don’t you import some from China? 
PANSY WONG 
: Here we go! Once again whenever members cannot use the power of logic to debate the issues they attack people by saying how recently they have come here. 
STEVE CHADWICK (Labour—Rotorua) 
: 
 I move  
That the question 
—. 
Hon RICHARD PREBBLE (ACT) 
: 
 I raise a point of order Mr Chairperson. I am not disputing in any way that decisions on closure are yours but nothing in the Standing Orders states that members cannot draw things to your attention. I would like to have a reassurance from you that before you take a closure motion you will look at Speaker’s ruling 85/2 which is a ruling of our present Speaker and one I am sure you are aware of. Speaker Hunt states: “The form of drafting of a bill is a matter that the chairpersons should take into account in committee in deciding when to accept a closure motion.” The explanatory note states that a “Considerably longer debate would be permitted on a part with numerous subparts than would otherwise be the case.”  
If you look at the literal meaning Mr Chairperson you will see that it is stating that chairpersons should take into account the drafting. I say to you that in my experience—and I have been here a little longer than most—I have never seen a bill that has been drafted in this way where we have had a fundamentally new bill suddenly presented to us and then have been put into urgency. It would appear to me that Speaker Hunt’s ruling is a guide to the Chair that in this sort of circumstance there should be considerably longer time given than is usually given. I want an assurance from you Mr Chairperson that you accept that that is the way the Chair ought to deal with this debate. 
I say that partly to protect the rights of the minority and partly to protect the rights of this Committee. It is undesirable that bills go through in this sort of way and one way of making sure it does not happen again is by making sure that the Government does not save any time by cutting out the rights it otherwise would be able to. 
The CHAIRPERSON (H V Ross Robertson) 
: I thank the member for that consideration. I have looked at every issue. I have also considered the issue under Speaker’s ruling 58/8. I take the point; however the ruling relates to a number of subparts. 
STEVE CHADWICK (Labour—Rotorua) 
: 
 I move  
That the question be now put 
. 
A party vote was called for on the question  
That the question be now put. 
Ayes 66 
New Zealand Labour 51; New Zealand First 13; Progressive 2. 
Noes 54 
New Zealand National 27; Green Party 9; ACT New Zealand 8; United Future 8; Maori Party 1; Independent: Awatere Huata. 
Motion agreed to. 
The question was put that the following amendment in the name of Metiria Turei to clause 39 be agreed to: 
to omit paragraph (b) of subclause (1). 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 10 
Green Party 9; Maori Party 1. 
Noes 110 
New Zealand Labour 51; New Zealand National 27; New Zealand First 13; ACT New Zealand 8; United Future 8; Progressive 2; Independent: Awatere Huata. 
Amendment not agreed to. 
The question was put that the following amendment in the name of Metiria Turei to clause 48 be agreed to: 
to omit this clause. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 10 
Green Party 9; Maori Party 1. 
Noes 110 
New Zealand Labour 51; New Zealand National 27; New Zealand First 13; ACT New Zealand 8; United Future 8; Progressive 2; Independent: Awatere Huata. 
Amendment not agreed to. 
The question was put that the following amendment in the name of Metiria Turei to clause 50 be agreed to: 
to omit from the heading the words “or cancelling”.  
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 19 
Green Party 9; United Future 8; Maori Party 1; Independent: Awatere Huata. 
Noes 101 
New Zealand Labour 51; New Zealand National 27; New Zealand First 13; ACT New Zealand 8; Progressive 2. 
Amendment not agreed to. 
The question was put that the following amendment in the name of Metiria Turei to clause 50 be agreed to: 
to omit the words “or cancel an order under section 48”. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 19 
Green Party 9; United Future 8; Maori Party 1; Independent: Awatere Huata. 
Noes 101 
New Zealand Labour 51; New Zealand National 27; New Zealand First 13; ACT New Zealand 8; Progressive 2. 
Amendment not agreed to. 
The CHAIRPERSON (Hon Clem Simich) 
: We now come to the amendments to the Minister’s amendments set out on Supplementary Order Paper 302. 
METIRIA TUREI (Green) 
: 
 I raise a point of order Mr Chairperson. There are a number of amendments on the Green Party sheet that is available to members. Are the questions on those amendments to the amendments on the Supplementary Order Paper to be put before the question on the Minister’s amendments on the Supplementary Order Paper? 
The CHAIRPERSON (Hon Clem Simich) 
: That is exactly what we are doing. These are amendments to the Minister’s amendments set out on Supplementary Order Paper 302.  
The question was put that the following amendment in the name of Metiria Turei to proposed new clause 35 set out on Supplementary Order Paper 302 in the name of the Hon Dr Michael Cullen be agreed to: 
to omit proposed new subclause (2). 
A party vote was called for on the question  
That the amendment to the amendment be agreed to. 
Ayes 11 
Green Party 9; Maori Party 1; Independent: Awatere Huata. 
Noes 109 
New Zealand Labour 51; New Zealand National 27; New Zealand First 13; ACT New Zealand 8; United Future 8; Progressive 2. 
Amendment to the amendment not agreed to.  
The question was put that the following amendments in the name of Metiria Turei to the amendments to clauses 39 and 40 set out on Supplementary Order Paper 302 in the name of the Hon Dr Michael Cullen be agreed to: 
to omit the omission of these clauses. 
A party vote was called for on the question  
That the amendments to the amendments be agreed to. 
Ayes 11 
Green Party 9; Maori Party 1; Independent: Awatere Huata. 
Noes 109 
New Zealand Labour 51; New Zealand National 27; New Zealand First 13; ACT New Zealand 8; United Future 8; Progressive 2. 
Amendments to the amendments not agreed to. 
The question was put that the following amendment in the name of Metiria Turei to proposed new clause 41 set out on Supplementary Order Paper 302 in the name of the Hon Dr Michael Cullen be agreed to: 
to omit proposed new subclause (2). 
A party vote was called for on the question  
That the amendment to the amendment be agreed to. 
Ayes 11 
Green Party 9; Maori Party 1; Independent: Awatere Huata. 
Noes 109 
New Zealand Labour 51; New Zealand National 27; New Zealand First 13; ACT New Zealand 8; United Future 8; Progressive 2. 
Amendment to the amendment not agreed to. 
The question was put that the following amendment in the name of Metiria Turei to proposed new clause 42 and 42Aset out on Supplementary Order Paper 302 in the name of the Hon Dr Michael Cullen be agreed to: 
to omit these clauses and substitute the following new clause: 
42Determination of applications for customary rights orders 
The Maori Land Court may make a customary rights order only if it is satisfied that— 
(a)the order applies to an established and identifiable group of Maori whose members are whanaunga; and 
(b)the activity use or practice for which the applicant seeks a customary rights order is integral to tikanga Maori and continues to be carried on exercised or followed in the same area of the public foreshore and seabed in accordance with tikanga Maori. 
A party vote was called for on the question  
That the amendment to the amendment be agreed to. 
Ayes 11 
Green Party 9; Maori Party 1; Independent: Awatere Huata. 
Noes 109 
New Zealand Labour 51; New Zealand National 27; New Zealand First 13; ACT New Zealand 8; United Future 8; Progressive 2. 
Amendment to the amendment not agreed to. 
The question was put that the following amendment in the name of Metiria Turei to proposed new clause 43 set out on Supplementary Order Paper 302 in the name of the Hon Dr Michael Cullen be agreed to: 
to omit proposed new subclause (3) and substitute the following new subclause: 
(3)However the exercise of a recognised commercial activity to which subsection (2) applies is subject to any conditions or limits imposed by or under any enactment or rule of law. 
A party vote was called for on the question  
That the amendment to the amendment be agreed to. 
Ayes 11 
Green Party 9; Maori Party 1; Independent: Awatere Huata. 
Noes 109 
New Zealand Labour 51; New Zealand National 27; New Zealand First 13; ACT New Zealand 8; United Future 8; Progressive 2. 
Amendment to the amendment not agreed to. 
The question was put that the following amendment in the name of Metiria Turei to insert new clause 43AA after the amendment to insert new clause 43A set out on Supplementary Order Paper 302 in the name of the Hon Dr Michael Cullen be agreed to: 
to insert the following new clause: 
43AARights are inalienable 
No person has the capacity to alienate or cancel any interest in an ancestral connection order customary rights order or territorial customary rights. 
A party vote was called for on the question  
That the amendment to the amendment be agreed to. 
Ayes 19 
Green Party 9; United Future 8; Maori Party 1; Independent: Awatere Huata. 
Noes 101 
New Zealand Labour 51; New Zealand National 27; New Zealand First 13; ACT New Zealand 8; Progressive 2. 
Amendment to the amendment not agreed to. 
The question was put that the following amendment in the name of Metiria Turei to proposed new clause 43B set out on Supplementary Order Paper 302 in the name of the Hon Dr Michael Cullen be agreed to: 
to insert in paragraph (a) of proposed new subclause (1) after the word “order” the words “or an order under section 37(i)(c)”. 
A party vote was called for on the question  
That the amendment to the amendment be agreed to. 
Ayes 11 
Green Party 9; Maori Party 1; Independent: Awatere Huata. 
Noes 109 
New Zealand Labour 51; New Zealand National 27; New Zealand First 13; ACT New Zealand 8; United Future 8; Progressive 2. 
Amendment to the amendment not agreed to. 
The question was put that the following amendment in the name of Metiria Turei to proposed new clause 43B set out on Supplementary Order Paper 302 in the name of the Hon Dr Michael Cullen be agreed to: 
to omit proposed new subclause (2) and substitute the following new subclause: 
(2)The order takes precedence over the provisions of sections 6 and 7 and must be referred by the Maori Land Court to the Minister of Maori Affairs and the Minister of Conservation (the relevant Ministers). 
A party vote was called for on the question  
That the amendment to the amendment be agreed to. 
Ayes 11 
Green Party 9; Maori Party 1; Independent: Awatere Huata. 
Noes 109 
New Zealand Labour 51; New Zealand National 27; New Zealand First 13; ACT New Zealand 8; United Future 8; Progressive 2. 
Amendment to the amendment not agreed to. 
The question was put that the following amendment in the name of Metiria Turei to proposed new clause 43C set out on Supplementary Order Paper 302 in the name of the Hon Michael Cullen be agreed to: 
to insert in proposed new subclause (1) before the word “The” the words “Except as provided in section 43B”. 
A party vote was called for on the question  
That the amendment to the amendment be agreed to. 
Ayes 11 
Green Party 9; Maori Party 1; Independent: Awatere Huata. 
Noes 109 
New Zealand Labour 51; New Zealand National 27; New Zealand First 13; ACT New Zealand 8; United Future 8; Progressive 2. 
Amendment to the amendment not agreed to. 
The question was put that the following amendment in the name of Metiria Turei to proposed new clause 49 set out on Supplementary Order Paper 302 in the name of the Hon Dr Michael Cullen be agreed to: 
to omit from the proposed new heading the words “or cancel”. 
A party vote was called for on the question  
That the amendment to the amendment be agreed to. 
Ayes 19 
Green Party 9; United Future 8; Maori Party 1; Independent: Awatere Huata. 
Noes 101 
New Zealand Labour 51; New Zealand National 27; New Zealand First 13; ACT New Zealand 8; Progressive 2. 
Amendment to the amendment not agreed to. 
The question was put that the following amendment in the name of Metiria Turei to proposed new clause 49 set out on Supplementary Order Paper 302 in the name of the Hon Michael Cullen be agreed to: 
to omit from the proposed new subclause (1) the words “or cancel”. 
A party vote was called for on the question  
That the amendment to the amendment be agreed to. 
Ayes 19 
Green Party 9; United Future 8; Maori Party 1; Independent: Awatere Huata. 
Noes 101 
New Zealand Labour 51; New Zealand National 27; New Zealand First 13; ACT New Zealand 8; Progressive 2. 
Amendment to the amendment not agreed to. 
The CHAIRPERSON (Hon Clem Simich) 
: The next amendment is to clause 49 and is in the name of Metiria Turei. It is an amendment to omit words from the amendment to subclause (2) set out on Supplementary Order Paper 302 in the name of the Hon Michael Cullen. This amendment is out of order because a previous amendment was not agreed to. There is a further amendment to clause 49. It is also in the name of Metiria Turei. It is an amendment to omit words from the amendment to subclause (3) set out on Supplementary Order Paper 302 in the name of the Hon Michael Cullen. It is also out of order because a previous amendment was not agreed to. 
The question was put that the following amendment in the name of Metiria Turei to the amendment to clause 50 set out on Supplementary Order Paper 302 in the name of the Hon Michael Cullen be agreed to: 
to omit from proposed new paragraph (a) the words “or cancellation”. 
A party vote was called for on the question  
That the amendment to the amendment be agreed to. 
Ayes 19 
Green Party 9; United Future 8; Maori Party 1; Independent: Awatere Huata. 
Noes 101 
New Zealand Labour 51; New Zealand National 27; New Zealand First 13; ACT New Zealand 8; Progressive 2. 
Amendment to the amendment not agreed to. 
The question was put that the amendments set out on Supplementary Order Paper 302 in the name of the Hon Dr Michael Cullen to Part 3 be agreed to. 
A party vote was called for on the question  
That the amendments be agreed to. 
Ayes 74 
New Zealand Labour 51; New Zealand First 13; United Future 8; Progressive 2. 
Noes 46 
New Zealand National 27; Green Party 9; ACT New Zealand 8; Maori Party 1; Independent: Awatere Huata. 
Amendments agreed to. 
A party vote was called for on the question  
That Part 3 as amended be agreed to. 
Ayes 66 
New Zealand Labour 51; New Zealand First 13; Progressive 2. 
Noes 54 
New Zealand National 27; Green Party 9; ACT New Zealand 8; United Future 8; Maori Party 1; Independent: Awatere Huata. 
Part 3 as amended agreed to. 
Part 4High Court jurisdiction in relation to customary rights orders  
The CHAIRPERSON (Hon Clem Simich) 
: This part includes debate on schedule 2. 
GERRY BROWNLEE (Deputy Leader—National) 
: 
 This is the part that no doubt New Zealand First members will claim as their triumph. This is the part that supposedly allows those New Zealanders who hold some property contiguous to a sea space and who have held that property continuously since 1840 and have undertaken activities within that foreshore and sea space of the same nature pretty much without change since 1840 the opportunity to go to the High Court and have a customary use right registered. There will be perhaps one or two families in New Zealand who might meet the criteria of still holding in 2004 the land that they held in 1840 or before that time. There will be perhaps one or two maybe a few more but certainly not hundreds not thousands and not tens of thousands—just a few. 
 Very few and perhaps none of those groups of natural persons—an interesting way in which to be described—will be able to demonstrate continuous use since that time. I have no doubt that Mr Jones will say that that will enable the committee that organises the Auckland regatta to go to the High Court to have that activity registered as a customary use of the area. But unfortunately for Mr Jones the fact is that one cannot make application to the High Court for a customary right or be granted such a right under the bill as he has restructured it if there is an aspect of commercial gain or activity inside what is claimed as a customary right. So the Auckland regatta with its various sponsorships and attempts to recover costs would in our view be caught by that restriction.  
But if that does not catch them the other clause in this part talks about having exclusive use for an activity in an area and the right to deny others access for that purpose. Well they cannot do that. Everyone knows that sailing on the Auckland harbour is a free-for-all. If Mr Jones is going to stand up and tell us that the High Court is about to change that he is a much bolder man than I am. So what we have here is a very large number of clauses that in fact will probably achieve absolutely nothing for anyone.  
I invite the Minister in the chair Dr Cullen to give us some practical examples of groups of New Zealanders by name—we can go around the countryside and name the Maori groupings who will be able to go to the Maori Land Court and get their rights granted. I will guarantee that the Government does not have a clue who others might be but in these conditions it has simply made sure that there will be very very few of them.  
So this is really just a “placate the white folks” series of clauses here. It does not set out to give any rights whatsoever because the reality is that the vast majority of people in this country have ancestors who arrived post-1840. When we look at the general processes that have to be gone through under the legislation I think that it would be difficult for any group to assert that it was a group of natural persons for the purposes of representing themselves under the conditions of this bill.  
I have to say though that it is difficult to follow the process. We notice that the numbering in the so-called redline document does not follow the numbering we have in the Supplementary Order Paper and that we have to search very hard through the bill itself to find the relevance of the Supplementary Order Paper given the very considerable number of additional bits and pieces that have been added on. I cannot help thinking that the Government might have got its members together in a back room somewhere and said: “Heck if we don’t tighten this thing up goodness knows who might try whatever on with the courts.” So they went to Mr Jones who is a naturally cautious and suspicious man and they asked him what he would recommend. He came up with just putting in a clause 65A B and C etc.  
DAIL JONES (NZ First) 
: 
 New Zealand First has made it clear that there should be one law for all. This bill is an effort to provide for one law for all and the party that went to Orewa and talked about one law for all is going to oppose a clause that provides that. To put it very very simply that is what this clause is all about—one law for all New Zealanders. It does not matter whether a person is white brown recently arrived Asian or like myself of American parentage on one side—and like Tariana Turia; we both have American fathers—it is one law for all and the National Party opposes it. What a bunch of sour grapes from that party! Its members are really whingeing and whining on a clause that gives one law for all.  
The Rt Hon Winston Peters in his first statement on this issue in June last year made it clear that we would have a law on this bill irrespective of race. Here we have the clause that provides that provision—irrespective of race there is one law for all—and the National Party just cannot come to grips with the fact that New Zealand First has not only talked about one law for all but has acted and got a result.  
I would like to thank the Labour Party for taking us on board. It might have upset one or two of them to think that they had to do that but in an MMP environment we all have to realise that sometimes we have to work with one another. It has been very good working with Dr Cullen and other Labour members of Parliament. Of course we in New Zealand First know from our experience with the National Party that that party is extremely difficult to work with and at the end of the day we had to walk out on the National Party because it wanted to sell off New Zealand’s assets. But this is a “one law for all” bill.  
The first point about the Auckland anniversary regatta that Mr Brownlee raised—whether it could make a profit—is a matter of sour grapes. I presume that the anniversary regatta organisation is an incorporated society. Therefore as a non-profitmaking organisation that particular bunch of sour grapes on the part of Mr Brownlee is dead—drowned and buried at the bottom of Davy Jones’ locker.  
As far as the other provisions of this bill are concerned the bill is a first for New Zealand I think and New Zealand First is proud to be part of it. We know that this is not a common law right; it is a statutory right. So we can forget about McHugh and the rest. This is a statutory right—perhaps the first in the world. It may not be absolutely perfect because it is the first ever in the world. One does not actually need to have contiguous land in the way I read the bill. That again is something Mr Brownlee is unaware of and has not grasped. He should “read it and weep” as we used to say in the old days in the men’s common room when playing cards.  
Mr Brownlee is just not aware of the situation at all. I accept that he has had trouble reading it and I will give him another helping hand. Schedule 2 has been incorporated in these particular clauses so that is why schedule 2 has been deleted. That will help him understand why there are so many clauses about contents of applications and directions for service. But it gets down to Dr Mapp at the select committee. He thought he would be very clever and prove to officials that this type of provision could not work for the anniversary regatta. He must have spent about 5 or 10 minutes grilling the officials on this particular provision and all an official could say based on the wording in the legislation was: “Yes there is a possibility I would not say a probability”—officials are very cautious—“that the Auckland anniversary regatta could go ahead.”  
Of course one could say that they do not need it. They do not have to do that if they do not want to but the option is there. That is what life is about—the option for equality for all New Zealanders is in this bill. The Weymouth boating club came to us as a submitter. That club is going to apply for a customary rights order. A very smart young man who turned out to be a Labour supporter gave Dr Wayne Mapp and Ken Shirley a real telling off. But that boating club is going to go for that order. As far as this legislation is concerned it is a very simple test put out by the committee: the order applies to a group of natural persons whose members share a distinctive community of interest and they have to have been carrying out the practice since 1840. The Auckland anniversary regatta has been going since at least September 1840 and probably since before that. It has to be a practice that is integral to the distinctive cultural practices of a group and in those days sailing was how one got to New Zealand—one sailed here. There is nothing more integral to the British settlers of New Zealand than the fact that they sailed here.  
METIRIA TUREI (Green) 
: 
 The Greens are opposed to this whole provision and we have put forward a number of amendments to the bill to get rid of it. It is not that we do not acknowledge and understand that the community as a whole has practices and activities in place that it considers are really really important and wants to enable those to be protected. The fact is that there are already mechanisms to enable protection of those sorts of activities. We do not need to abuse and redefine in this deceptive way the customary rights of the indigenous people to whom this bill is supposed to be directing itself. It is a misconception and a complete deception to say that those who have come here after the process of colonisation and who are not indigenous to this land are entitled to customary rights. A customary right is a legal concept that applies to the indigenous people. It means the rights that they held in their customs the rights that they exercised and the things that they did before colonisation occurred. The customary rights provisions in the common law are a protection mechanism for those practices once colonisation has occurred.  
To then say that all people in the country are entitled to those rights is wrong. It is wrong in law and it is wrong as a concept. In fact it distorts things for the community which wants to have its special activities protected. It gives the community false hope. There has already been enough palaver coming from New Zealand First and Labour about the undue expectations Maori have of what they could get in the courts. Clearly the officials have said and even the bill itself acknowledged when it first came to the House that no one will get these. No one will qualify for them because they are so ridiculous. People will think they can get access to the courts. They will spend money trying to do this and it will be a waste of time because in effect the customary rights are useless. No one will be able to get them.  
This part is a smokescreen of equality in order to hide New Zealand First’s complicity in the theft of Maori land. It unjustly raises the expectations of the community which does want to have its needs met. But there are existing forms for this. For example the Historic Places Trust will purchase and assist people in purchasing property that is considered to be significant for the community as a whole. There is no structured Maori form of the Historic Places Trust. No organisation is provided for in the way that the Historic Places Trust is to purchase and protect sites of historic or cultural significance for Maori in this country. The Historic Places Trust forms a really important part of the structure of protection and is there for the community as a whole.  
In this bill there is some—slightly corrupted in my opinion—form of protection for Maori customary rights. But New Zealand First wants to further corrupt those and steal the protections to make them apply to everyone when in fact those protections already exist.  
Another clear example in terms of the importance of these things is the white crosses on highways. The Greens were the first to come out and defend those crosses on the highways and to say that Transit had no right to take them down. It was unjustified and incredibly mean because those areas were significant to the people who placed those crosses there. They were spiritually significant. Those areas do not have a physical manifestation for the people who placed the crosses there. They are spiritual for them and it is important that they are recognised accepted acknowledged and understood by the whole community. They form an important tool for the community as a whole and they need to be protected. We have been the first to say that they should be.  
But these are not things that customary rights can be claimed for. There are other forms of protection that Parliament and other structures can provide to enable those kinds of values to be enshrined in our culture. The provisions that are set out in this part which New Zealand First has been so intent on making sure are there are symbolic at best. New Zealand First recognises that it will be very difficult for people to get these rights. It recognises at least in some part that the provisions are likely to be symbolic and provide the veneer of equality. Yet when asked to support the entrenchment clauses to protect the foreshore and seabed from sale into foreign hands New Zealand First refused. It refused because it did not want to support something that it considered to be only symbolic. Yet it has spent important and scarce negotiating time with the Government to put forward provisions in law that are nothing if not symbolic and useless. 
RUSSELL FAIRBROTHER (Labour—Napier) 
: 
 Customary rights orders are not defined as people who listened to the last speaker would believe by the existence of other customary rights orders; customary rights orders are defined by the practice of a group. Under this part a group is a group that shares a distinct community of interest. This area of customary rights is not a development of aboriginal customary rights but a natural consequence of the codification of the law as a whole. This Parliament cannot try to guess who may have that distinctive community of interest who may have held it since 1840 and what practices are integral to the distinctive cultural practice of the group. That is not the point. The point is that when we codify the common law we seek to bring consistency. 
The applicants under this issue need not be Pakeha. They could be Maori if they wanted to align themselves in that way. This measure provides an alternate and a logical extension in a multicultural society to the aboriginal customary rights that this bill codifies. No one at all needs to feel threatened by it because if there are no groups that seek to be included there is no problem; if there are groups that seek to be included then of course there will be no problem because they can be so accommodated. It would be totally unfair to present this bill as one that panders to just one race. The aim of this bill is to codify the law in respect of customary practices and rights as they relate to the foreshore and seabed. 
So it is not appropriate to say that because this measure may not apply to Maori it should not be in the bill. It is in the bill in order to achieve a consistent codification a logical examination of all options so that when an option is put to the court that reflects the growing diversity of culture in this community and the recognition of those practices then any group no matter what its racial background will find a space within the bill to give expression to that laudable aim of a maintained historic customary right—not a new one but one that is currently in existence; not a recent invention but one that has been in existence since 1840. So the tests that apply to customary rights orders under this part of the bill are similar in many regards to those taken from the aboriginal rights that give rise to the customary rights orders that we have dealt with in Part 3. 
This simple measure gives completeness to the bill. It makes it a bill and ultimately an Act that applies to the face of New Zealand as we all know it—a multifaceted multicultural varied face that no one in Parliament should endeavour to prescribe or exclude. It is as simple as that. It is a nice elegant addition to the common law. It will present no complications and all speakers in this Chamber should endorse it. 
Hon RICHARD PREBBLE (ACT) 
: 
 This is the part of the bill that is designed to protect the Auckland regatta. It was not until Mr Peters made his statement that the organisers of the Auckland regatta realised that it was in any way under threat. There is no evidence that the Auckland regatta organisers will apply despite Mr Peters having provided this whole part for their benefit. What on earth would they apply for and who apart from Mr Peters thinks the Auckland regatta is under threat? 
This part brings MMP into disrepute because New Zealand First has said: “Let’s go back far enough then say that we’re applying the law to everyone.” and it picked on 1840. I ask Mr Dail Jones why 1840. If he was to look at the Canadian experience he would see that the Canadians have gone back to first contact. The reason they did that was that they said that once two cultures clash each culture changes. We know that— 
Dail Jones 
: Ask me. I have given you the answer. 
Hon RICHARD PREBBLE 
: I listened to Mr Dail Jones properly; now he does not want to hear me. We know that when Captain Cook first arrived he had considerable impact. But the Australians have gone the other way. They have said it should date from the point of sovereignty. Mr Dail Jones if he had been in New Zealand a bit longer would know that New Zealand did not get sovereignty in 1840. I tell Mr Jones that New Zealand did not get sovereignty until 1948 when we signed the Statute of Westminster. That is when we got full sovereignty. If Mr Jones’ logic was to be followed if he really wanted the same law to apply to all New Zealanders he would change the year from 1840 to 1948. No one believes that he will do that because Mr Jones is not actually interested in providing protection to every New Zealander; he just wants to make a simple slogan statement that New Zealand First is applying the same law to everyone. He has admitted that that is all he is doing. Why not be safe and date it from first contact—go back to 1642 when Abel Tasman turned up? That would be a good date. Then Mr Jones could really say that he was acting on behalf of every New Zealander and that this is one law for all. It is a nonsense. 
I draw the Committee’s attention to another matter and invite Mrs Donna Awatere Huata to take a call. I was in the High Court of New Zealand when I heard her lawyer say that she would vote with the ACT party. Because she has now discovered that she will hear the court’s decision tomorrow I heard her decide to start to vote with the Green Party. On the political spectrum we could not get two parties that were further apart. I would like her to explain to us how a person elected on the ACT party list can suddenly decide tonight that she is a Green MP. I would like her to take a call and explain that. It would be her valedictory. She could get up and explain how a person can tell the High Court that she is an ACT MP and that she will vote with the ACT party then when she finds out that tomorrow she will be going out of Parliament votes with the Greens the socialists in this Parliament. She could not vote more differently. 
There is a word for that; it begins with “h” but we are not allowed to use it. However I am perfectly entitled to invite Mrs Donna Awatere Huata to explain her vote to this Committee and to the 160000 people who voted for ACT and put her into Parliament. They voted for property rights and one law for all only to find that tonight at 9 o’clock she has suddenly discovered that she is a Green MP. I think that is such an extraordinary conversion that the whole Committee should hear about it. Let us have an explanation of the amazing voting that we are now getting from the member. 
Tariana Turia 
: I raise a point of order Mr Chairperson. I ask what relevance this speech has to the bill.  
Hon RICHARD PREBBLE 
: Speaking to the point of order—which I am quite happy to speak to—I say that the relevance is that one can ask any member to explain his or her vote. Perhaps the member who made the interjection might be able to explain it because Mrs Huata is also now voting with the Maori Party. That is quite an extraordinary conversion 24 hours before she will probably be told she is no longer a member.  
Hon Parekura Horomia 
: Good on them. 
Hon RICHARD PREBBLE 
: The member says “Good on them.” The Government has been telling us that people will behave honourably under this bill. Where is the evidence for that? 
Dr WAYNE MAPP (National—North Shore) 
: 
 I will talk about new clause 61 “Determination of applications for customary rights orders”. This clause is as Mr Jones is wont to tell members and the media whenever he has the opportunity the Auckland Anniversary Regatta clause—as if the Auckland Anniversary Regatta needs it. For the last 164 years I guess the organisers have been in doubt in about November of each year wondering: “Are we going to be able to hold this regatta? Will people stop us having our races on the harbour?”. In reality the member well knows that that simply is a nonsense. 
Yes it is true that I asked officials of the Fisheries and Other Sea-related Legislation Committee whether the regatta met the criteria and we went through them. Had it been going before 1840? Yes it had. Did it involve particular people with cultural practices? Yes it did—they all wore white flannel and so forth. Were the people in clubs? Yes they were. Yes it meets the criteria. The question is what is the point. Why are we passing law to allow that group to go to the High Court at the cost of tens of thousands of dollars to get an order to do something that that group always could do and always will be able to do? That group does not need the assistance of the New Zealand First - Labour cabal; it does not need it to deliver some sort of benefit that is completely unnecessary. I concede the point that the regatta fits the criteria; I ask the question: so what? This truly is an example of the time of Parliament being wasted to provide rights that are completely—[ 
Interruption 
] On this particular part we are wasting the time of Parliament. The Government with its New Zealand First allies is trying to put in place something that is unnecessary. 
It had other choices and Mr Brownlee has put those extremely well. There are a large number of New Zealand families who are not Maori and who have had long-established relationships with the coastline over many generations but they will get no advantage from this bill. Yet surely they have established customary rights. The Government’s answer will be that 1840 is a magical date but what that does in practice is provide a benefit to Maori only. It has come up with this in essence fiction about the Auckland Anniversary Regatta to justify that principle. That is what it is all about. It is a fiction to justify separatist and sectional law. 
If the Government were honest it would provide a more realistic date that recognised the true history of our country. That date would obviously be quite a long time ago because it is the nature of customary rights to be established by families over generations but it would recognise the reality of this country. By and large the modern country of New Zealand was settled by Maori prior to 1840 and by those from Britain post-1840 by and large with the great core of that settlement occurring in the 19th century. That is the fundamental core of our nation. Those peoples have been added to in more recent times—and indeed were added to in the 19th century—by peoples from all over the world. For all I know the Chinese community may well be able to establish customary rights in parts of Dunedin for instance. We have to have a date that truly and realistically accommodates the breadth of New Zealanders if these kinds of clauses are to have real life force and meaning. 
Surely the Government which says it wants to reach out to all New Zealanders and embrace them in some kind of inclusive law should have a proposition that actually does that. This provision totally fails. When Mr Jones uses the example of the regatta he actually brings these proposals into some kind of disrepute. He knows that it is not an issue. He knows that the Auckland Anniversary Regatta did not ask for it because it did not need it.  
DAVID PARKER (Labour—Otago) 
: 
 The debate on this part shows the arrant nonsense that the National Party has been speaking for weeks. Only last week Mr Brownlee showed his misunderstanding of these issues by denying the need to deal with the High Court jurisdiction if we were dealing with the Maori Land Court jurisdiction. The National Party agrees that the foreshore and seabed should be Crown land. The National Party says it agrees that the jurisdiction of the Maori Land Court had to be truncated so that alienable title could not be created; freehold title could not be created and sold. It failed to realise and fails even now to acknowledge that closing that particular door and not dealing with the High Court jurisdiction would be to deal with only one side of a two-sided coin. The inherent jurisdiction of the High Court also includes the power to award in some situations alienable title and to exclude the public from parts of customary title that could otherwise be granted by the High Court.  
 That also exposes the Greens’ lack of logic. The Greens in their report back on the bill say that access to the foreshore and seabed should be provided for all people. The Green Party recommends that: “there should be no saleable private and exclusive title granted over the foreshore and seabed to anyone New Zealanders in general tangata whenua or overseas interests.” Yet it opposes the limitation of the jurisdiction of the High Court. That is effected by clause 62C which provides that the High Court cannot make customary rights orders that restrict access rights. If that provision was not in the legislation the 80 or so applications presently before the Maori Land Court covering just about the whole foreshore of New Zealand would very quickly migrate to the High Court forum. That avenue would be open that divisive issue would be out there for years to come and it would not be fixed.  
Only through addressing the inherent jurisdiction of the High Court as well as the jurisdiction of the Maori Land Court can this be fixed. The ignorance of the National Party was shown by Mr Brownlee during question time last week. Even after 19 months National does not understand that simple point. Mr Mapp has just shown his ignorance by saying that the defining date at which customary rights are assessed should be later than 1840 when the very basis of the court’s common law jurisdiction to find customary rights relates to the date of the assumption of sovereignty by the Queen. That again shows how poor the National Party’s understanding of these issues is even after 19 months. If we deal only with the Maori Land Court which National and the Greens say should be the case but disregard the jurisdiction of the High Court then we do not cure the underlying mischief which is the risk of freehold title alienable title being sold off or created and used to prevent other people from getting access.  
I want to deal with one more point. The Greens say that Crown ownership does not protect the foreshore and seabed from being sold off and that there is some hidden agenda to sell off the foreshore. What arrant nonsense! Who owns New Zealand’s national parks? The Crown owns them. Does anyone feel that the national parks are at risk of being flogged off? I certainly do not. The foreshore and seabed will be in exactly the same situation. Indeed they will have even greater protection because the provisions in this legislation say that they should be held for all the public and should be inalienable. This debate on Part 4 shows that the National Party does not understand the issue. This legislation is needed. Part 4 is as important as the limitations on the Maori Land Court jurisdiction and it should be passed. 
PHIL HEATLEY (National—Whangarei) 
: 
 I would like to put on record a thankyou from the National Party to the member from Otago. That is another thousand votes for Jackie Deans to add to the thousand she got today door-knocking in Otago while the member spent 8 hours writing that 5-minute speech so we thank the member for Otago. 
Part 4 as the deputy leader of the National Party Gerry Brownlee said is all about placating the white folks. I can tell the House what happened in relation to that. Part 3 which we debated earlier deals with the customary rights orders the Maori Land Court gives to Maori when they come to that court cap in hand. Part 4 is supposed to mirror that for the white folks and to give the High Court a jurisdiction similar to that of the Maori Land Court in giving those customary rights orders. 
I know what happened. There was a big stir in New Zealand because Maori were getting something for free—arguably something they were not entitled to—in such a blanket way across the country and the New Zealand public got quite upset. Dr Cullen went to see Winston Peters and said: “Winston with about 10 percent—no 7 percent; no 5 percent—of voters you seem to cross the great divide. Granted they are all over 67 but you have crossed the great divide between Maori and Pakeha. What shall we do to fix this?”. In his wisdom Winston Peters said: “Dr Cullen throw the white folks a bone.” and here we see it in Part 4. 
I want to bring members’ attention to clause 56A because that clause gives a definition to the white folks they are throwing the bone to: “group of natural persons with a distinctive community of interest …”. That is who the group is. The definition goes on to state that the group does not include “persons whose only connection to the group is as successors in title …”. In other words succession through the family line is not included for the white folks. How can that be? 
When it comes to Maori customary rights an association with a coastal marae generally means a customary right through whakapapa and relationships. But a non-Maori with an ancestral line through succession through relationships is not included. In other words if grandad owns a place by the beach and has had undisturbed customary use of that beach for a period of decades his daughter is not included his grandson is not included and his grandson’s daughter is not included. But for Maori whakapapa is included for generations upon generations. 
Why is relationship succession which generally leads to inherited title and which is generally passed on through family lines generation after generation not included in clause 56A for white folks but is included for Maori? There is a huge distinction between Part 3 where the Maori Land Court grants customary rights and Part 4 which we are debating where the High Court gives much more limited customary rights for everyone else. 
JOHN TAMIHERE (Labour—Tamaki Makaurau) 
: 
 I rise to support Part 4 of the bill and to make the following observations particularly in light of some of the comments made by the member who just resumed his seat. The member reflected on clause 56A: “In this Part group of natural persons with a distinctive community of interest and group does not include persons whose only connection to the group is as successors in title to any land.” 
He went on to talk about “the white folks”; I am sure I heard that terminology. Does Pansy Wong have anything to say about what that member just said about her? Is she excluded? Are the Chinese populations that came to this country to mine in Otago and the South Island and to work in this country excluded just because they are in the National Party? Is that what that member said to Pansy Wong? 
I ask him about Georgina te Heuheu who is another member of the National Party. Is she a white folk? Has she been classified in that regard by the member from the National Party who just resumed his seat?  
But there is an even worse aspect. A “community of interest” is what the National Party used to be but it is all over the place now. Those members are all rising to take a call in this debate. There is no discipline no argument and no substance—it is outrageous! 
I rise to support this part which is actually the New Zealand First part. It is the “We love all Kiwis” part. It means that under this legislation there is one rule for all Kiwis—for everyone. It is called the 1840 rule. If one cannot hit the 1840 rule and if one cannot ensure succession and assignation through the 1840 rule one gets nowt. It does not matter whether one is white folk brown folk yellow folk or any folk. The reality is that under Part 4 by care of New Zealand First 1840 is the deadline. It is the cut-off point. 
Gerry Brownlee stands up in this Chamber as a fifth generation Kiwi and says: “Oh I don’t make the cut because of the 1840 rule and I don’t like it.” That is what Gerry Brownlee says. He says: “I’m a greedy little fellow and I want a part of the action.” But New Zealand First says: “Sorry Gerry. You haven’t made the cut-off date.” 
The CHAIRPERSON (H V Ross Robertson) 
: The member’s full name is to be used. 
JOHN TAMIHERE 
: Of course. He is the honourable Gerry Brownlee and Gerry Brownlee cannot make the cut-off date. Why? Because New Zealand First has said that 1840 is the date. If one does not make the date it does not matter whether one is black white or brindled or whether one is white folk or brown folk. If one does not make the cut-off one does not make the cut-off. 
Part 4 is for all those folk over on the Opposition benches and for most of my colleagues on the Government benches and I say that that is great. I say that it is one rule for everyone. 
I have to acknowledge Dail Jones and his colleagues from New Zealand First. There are six Maoris in New Zealand First and they have all lined up and accepted it. We Maoris are real Maoris too. [ 
Interruption 
] Yes that is right.  
Opposition Member 
: We will watch them. 
JOHN TAMIHERE 
: There are a few of them around even though Georgina te Heuheu has been made an honorary white folk by the member for Whangarei—but he is good at handing out honorary titles and degrees. I came down to the Committee today to honour and accept the New Zealand First position even if for no other fact than they have thirteen votes—and we need them! 
However putting that to one side I acknowledge that we now have those rights and as we move forward as a disciplined wonderful nation forging ourselves together with great tolerance and respect towards one another I say to Mr Brownlee that this is the “Save Gerry Brownlee” provision. The reality is that Mr Gerry Brownlee cannot make the 1840 rule—[ 
Interruption 
] Well he should not sit here with a vested interest in an attempt to blackguard everybody else and the justifiable rights that have been expressed in this document within this particular legislation. 
I put it to members of the Opposition that the safeguard is here as one rule for all people. There is no doubt about that—absolutely no doubt about that—but we all have to hit the 1840 rule. If one cannot hit that 1840 rule it will not matter whether one has five generations of succession. Now Gerry Brownlee is getting very upset. We can save the whale and save Gerry Brownlee but this bill does not do that. 
I also wanted to indicate a couple of other matters that are very important to do with the jurisdiction of the whole bill. 
GERRY BROWNLEE (Deputy Leader—National) 
: 
 I raise a point of order Mr Chairperson. No there is no point of order. The member is running out of steam and I thought that I would give him a break. 
The CHAIRPERSON (H V Ross Robertson) 
: That is not a point of order. 
Hon BILL ENGLISH (National—Clutha-Southland) 
: 
 This is easily the most cynical part of this legislation and the fact that we are debating it does an injustice to this Committee. This whole business of the foreshore and seabed is being taken seriously by everybody in New Zealand who knows that it is going on. Fifteen thousand Maori appeared on the front lawn of Parliament because they took the issue so seriously. But in Part 4 there is the ultimate expression of political cynicism in a deal that has been cooked up between Dr Cullen and Mr Peters. This part is no more than playground politics. We all know that as we sit here in the Chamber and read through it in order to try to understand why there is a jurisdiction of the High Court in respect of customary rights and when members have just finished the debate about the jurisdiction of the Maori Land Court. It is for the very simple reason that our favourite political show pony Mr Peters will be able to stand up in front of his Grey Power audiences and say: “One law for all.” That is the only reason for this part. There is no other reason. As the ACT MP Mr Prebble pointed out the Auckland regatta does not need this part; it never has needed it and it never will need it. Dr Cullen put this part in as a show of the desperation that the Government had about getting the numbers for this legislation did he not? He must have been really pushed if he had to introduce a whole new jurisdiction that to all intents and purposes will never be used.  
I did though wonder about one opportunity to use it with regard to sites of significance. There are any number of burial places around New Zealand that have been used consistently by communities since 1840. I would be interested in whether the Minister in the chair Dr Michael Cullen can tell us whether for the purpose of protecting such a site a community could go to the High Court for a customary rights order equivalent to what would apply to wahi tapu. My guess is that one can do that so that is one way in which the part could possibly be used. However we are casting around and trying to find ways to use this part to do things that we have always done without any question over their legality or probity.  
There is another aspect of this part that I think is worth commenting on. The clauses in this part outline the conditions under which a customary rights order may be issued. As I looked through and checked it out I found that they match pretty much the clauses under the Maori Land Court jurisdiction and that the hurdles in the part are fairly high. In order to get one of those orders one has to demonstrate continuous activity and that will be difficult. When I listened to Mr John Tamihere’s jocular explanation of the whole thing I wondered whether he was underestimating the seriousness of his position because there is absolutely no doubt that the Maori MPs in Labour have utterly failed to meet the expectations of the 15000 people who turned up at the hikoi. I do not think that there is any doubt about that. As I read through this part it struck me pretty forcefully that that is the reason Dr Cullen did the deal. He wants Winston Peters as well as John Tamihere to go out there and sell this legislation.  
There is no doubt that Labour let the genie out of the bottle over Maori expectations on ancestral connection. Those expectations have been running wild for the last 6 or 9 months among Maoridom and the Labour Maori MPs have delivered nothing like the expectations of their supporters. That is why Tariana Turia does not have to take a call tonight. She knows that she is winning huge ground over this legislation. [ 
Interruption 
] That member should know if he did not know this already that he is losing huge amounts of ground over it. I challenge the Maori MPs to get up in the Chamber and say the same things that they said in front of the hikoi. 
Hon STEVE MAHAREY (Minister for Social Development and Employment) 
: 
 I move  
That the question be now put 
. 
RICHARD WORTH (National—Epsom) 
:  
This legislation must surely be politically correct madness. Part 4 is all about that. I guess it is a pathway one might unkindly say for “white honkies”. I listened to what the honourable John Tamihere said when he seriously suggested that different ethnic groups may take advantage of Part 4 and I thought he must be dreaming. We did not have Chinese settlement in New Zealand until 1860. The only possible ethnic groups that may be considered as coming under this umbrella are Maori and I guess we would say European or Caucasian interests. It seems to me that this debate is rapidly developing into a farce. It is a farce created by the Government driven by political correctness and an apparent desire for all New Zealanders to be seen to be equal when the reality of that desire is wholly illusory.  
What is implicit in Part 4 is that a concurrent jurisdiction is given to the High Court to make customary rights orders under Part 4 and that is underscored by provisions in the part. It is a jurisdiction that is shared with the Maori Land Court. Under Part 3 it is quite clear by dint of clause 60 that the Maori Land Court is to have primacy in determining issues of customary rights. I just note that there are subtle wording differences between Part 3 and Part 4. That will in the result doubtless cause confusion and assertions of injustice and inequality of treatment. That could all have been avoided. Did the Government seek to do that? No! Why not? Maybe it was pressure of time; maybe it was just simple ineptitude.  
I would like to draw two points to members’ attention before I make the substantive point that I seek to make. The first concerns clause 62(1). Under the heading “Effects of customary rights order” that clause makes the point that a customary rights order may entitle a group on whose behalf the order is made to derive a commercial benefit from carrying out a recognised customary activity. It was never intended in the context of the common law that customary rights should be exploited for commercial gain. The same provision occurs of course in Part 3. It shows a misunderstanding of what the whole concept of customary rights was about is about and will be about. The second point I note is that in a fit of generosity or perhaps foolishness under clause 58 we all have until 31 December 2015—yes 10 years—to make application to the High Court for one of those orders.  
I have said that there is an air of unreality about this part. In fact there is an air of unreality about the bill. It overlooks the simple fact that in the New Zealand community today Maori and non-Maori have substantially intermingled. The legislation assumes that Maori tribal groupings are substantially untouched by civilisation. It is a throwback to the idea of the “noble savage”—the romantic iwi groupings on the coast and the idea of flesh pots and cooking pots. That is absolutely ridiculous because Maori and non-Maori have moved on from that. Let us just say we have a New Zealand community. [ 
Interruption 
] I would just like to say to the members who are shouting across the Chamber the stupid comments that they are so inclined make that it is appropriate in the context of this bill—if for just a moment they would listen—to reflect on the whole issue of what it means to be a Maori in 2004 and what it means to be a non-Maori. Mr Maharey even with the flights of imagination that he is given to could not cross that intellectual gap but some members may be able to.  
STEVE CHADWICK (Labour—Rotorua) 
: 
 I move  
That the question be now put 
. 
RODNEY HIDE (Leader—ACT) 
: 
 We are debating Part 4 and in particular the Winston Peters clause. I ask the Minister in the chair Dr Michael Cullen to name just one activity—he is yawning because he cannot—that this clause will apply to. Can he call one out? Can anyone hear the Minister calling out one activity that will be protected by Part 4? Not one! This is the most useless legislation that we have seen in this Parliament for years and years. We hear Mahara Okeroa calling out. This just shows a Government— 
The CHAIRPERSON (H V Ross Robertson) 
: I am sorry to interrupt the member. I know it is a robust debate and I enjoy passionate and vigorous debate. But I have to say to members on my right that I have difficulty in hearing even Mr Hide. I caution the members now: whakarongo; turituri. 
RODNEY HIDE 
: What is clear is that the Government wants the legislation to go through Parliament as quickly as possible. Why? Because the Government is embarrassed by it and even when Opposition members get up to speak about it Government members try to drown us out. They do not want New Zealanders to know the truth.  
Part 4 achieves nothing. It is race-based legislation on speed—that is what we have. Michael Cullen looks confused—and well he may be. How do Maori go about getting their customary rights orders? How do they do it? They go off to the Maori Land Court and they get— 
Dail Jones 
: They can use this process. 
RODNEY HIDE 
: Well why would they use this process and not the other one?  
Dail Jones 
: Why not? 
RODNEY HIDE 
: The point is that Maori were here before 1840. I know that Mr Jones is a recent immigrant and that he is embarrassed about that fact being a New Zealand First member. Maori were here before 1840 and they can use the other process. What advantage does that give them? That gives them the Maori Land Court. Let us remember that this Government did not trust the Maori Land Court to deal with the original case. The Government did not trust it nor did Parekura Horomia and John Tamihere. So the Maori Land Court will decide Maori claims for customary rights but everyone else will go to the High Court. Here is another difference: Maori can claim spiritual connection—tikanga Maori. I ask Mr Jones where that is for everyone else. Where is the spiritual connection in this part? [ 
Interruption 
] Oh it does not have one. That is the point. We have legislation that in the other part deals with spiritual connection but in this part does not. Why? Because there are two separate processes in here: one for Maori and one for non-Maori.  
The solution was quite simple.  
Hon Parekura Horomia 
: Merry Christmas. 
RODNEY HIDE 
: Well even Parekura Horomia has woken up. That is a first. It is past his bedtime and Parekura Horomia is awake. He normally nods off at question time and does not come round until lunchtime the following day. We should do the obvious thing and let Maori simply have their day in court. I ask Mr Horomia and Mr Tamihere what was wrong with that. What is wrong with letting Maori have their day in court? Then Mr Horomia could say that everyone is equal before the law because Maori and non-Maori could go to court and have that tested. [ 
Interruption 
] Parekura Horomia the Minister of Maori Affairs is calling out that Maori should not be able to have their day in court. That is why that Minister will be toast at the next election. He is voting tonight for two laws for New Zealanders one for Maori and one for non-Maori and he is saying to Maori that they cannot have their day in court. That is what Mr Horomia is saying. He is saying that Maori cannot have their day in court. They are second-rate citizens—[ 
Interruption 
] Parekura Horomia says we should read  
Hansard. 
Tariana Turia says I am right. I may check my assumptions but I think she is right about that. [ 
Interruption 
]  
The CHAIRPERSON (H V Ross Robertson) 
: Members should take a big deep breath and then breathe through their noses. 
Rt Hon WINSTON PETERS (Leader—NZ First) 
: 
 I seek leave for Rodney Hide to have an extension of time of another 5 minutes on the basis that New Zealanders love a joke. 
The CHAIRPERSON (H V Ross Robertson) 
: No the member knows— 
Rt Hon WINSTON PETERS 
: I am seeking leave. 
The CHAIRPERSON (H V Ross Robertson) 
: The member cannot seek leave on behalf of someone else. 
RODNEY HIDE (Leader—ACT) 
: 
 On the basis of Mr Peters’ kind invitation I seek leave for another 5-minute call. 
The CHAIRPERSON (H V Ross Robertson) 
: The Committee is the master of its own destiny. Is there any objection? There is objection.  
GERRY BROWNLEE (Deputy Leader—National) 
: 
 I raise a point of order Mr Chairperson. You have just asked members to calm down and take a deep breath. All that members are doing—and there are considerable numbers of them—is trying to get a call. They sense that the Government eager to get off this very embarrassing part is about to start bombarding the Committee with closure motions and that at some point no doubt you will refer to a bit of paper see that the clock has reached a particular point and accept a closure motion. That is just not fair. 
The CHAIRPERSON (H V Ross Robertson) 
: Mr Brownlee has made his point. The Chairperson is the sole judge as to whether the closure will be taken as per Speakers’ ruling 58/8. 
GERRY BROWNLEE (Deputy Leader—National) 
: 
 I raise a point of order Mr Chairperson.  
The CHAIRPERSON (H V Ross Robertson) 
: I have already ruled. It had better be something new. 
GERRY BROWNLEE 
: It is. I just want to let you know that while we accept—[ 
Interruption 
]  
The CHAIRPERSON (H V Ross Robertson) 
: Points of order are to be heard in silence. I now ask the member who is a longstanding member to withdraw and apologise 
Rt Hon Winston Peters 
: I withdraw and apologise for that outrageous comment. 
GERRY BROWNLEE 
: If anyone wanted to have proof that there are two standards of citizenship in this country I am a living example of that. What I want to say to you is this. [ 
Interruption 
]  
The CHAIRPERSON (H V Ross Robertson) 
: The member over there will take down the visual aid. That is outside the Standing Orders. The member will remove it. He has his first yellow card. He knows what that means. 
GERRY BROWNLEE 
: I am on a point of order. It happens to be an Opposition point of order so the rules change. We noticed that the last time the closure was taken the Government whip Mr Hughes got himself in quite a flap. He was running around the Chamber saying that we had spent 2 hours on a part and that it was time we shut it down. We noticed that immediately after that the debate ceased. That worries us because this as has been pointed out numerous times is a very complex bill. The substantial Supplementary Order Paper which is effectively an amendment bill and will soon be titled as such was seen by us for the first time yesterday. It deserves a little more scrutiny than is usually the case. 
The CHAIRPERSON (H V Ross Robertson) 
: I thank the member. I understand the point that is being made.  
Hon Dr MICHAEL CULLEN (Leader of the House) 
: 
 I raise a point of order Mr Chairperson. I suggest that we are starting to get back to a habit we had for some time previously in this Parliament when continual points of order were taken by members of the National Party to try to influence you on the issue of the acceptance or otherwise of a closure motion. The Speakers’ rulings on that are very clear and had to be re-emphasised at one point in the past in order to cease that practice. Mr Brownlee is clearly now beginning to re-enter that practice. He knows very well the indications given at the Business Committee yesterday. So far today in nearly 11 hours of debate we have completed only three questions which is an unusually long debate by the standards of the Committee. I do not make that point in order to try to influence you at all. I merely say that you make the final decision and there is no question that your decision in my view is one that sometimes upsets members on the Government side of the Chamber as well as on the Opposition side. That is the nature of being a referee in this place. 
The CHAIRPERSON (H V Ross Robertson) 
: Thank you. I have heard what the member said. 
Hon DAMIEN O'CONNOR (Minister for Racing) 
: 
 I move  
That the question be now put 
. 
METIRIA TUREI (Green) 
: 
 I urge the Committee to support the Green Party’s amendments to Part 4. A number of the Opposition parties have joined the Greens in criticising it for being unnecessary a smokescreen raising expectations on the part of the community that will not be able to be met and in effect a fallacy. I hope those other parties will support the amendments of the Green Party to delete the provisions in Part 4 from the bill. 
In an earlier call I raised the issue of the white crosses on the highways which have recently come into the news because of Transit New Zealand wanting to take them down. Of course the Greens joined the community in expressing outrage about that because we recognise the significance of those crosses. We understand why it is important for people to have a physical manifestation to remind them of what happened in those places; we understand that those manifestations—those crosses—are an emotional and spiritual expression of what happened there. They are significant to the community. The practice of placing crosses on the highway has become common in the whole of our country by the whole of our community. That common practice needs to be acknowledged and protected and there need to be ways of making sure that the needs of the people are protected in some form. It needs to be recognised that those crosses on the highway form an important community function in terms of safety in terms of reminding us as we drive around that lives are put at risk. That is extremely important. 
If New Zealand First’s clauses made a difference to those white crosses—if they protected them—then this part might be useful. But there is no way that Part 4 will protect those white crosses because unless something has been a common practice since 1840 it has no protection under the bill. Part 4 provides nothing for the community because Dail Jones has the very strange idea that the best way to protect the values that people place on things like those white crosses is to apply some strange blanket rule across everything. He thinks that everything will then fall into its place and be protected equally. 
He has failed to come up with any examples other than the Auckland regatta. Even in the select committee when he and the officials were asked for other examples he was never able to come up with a single other example of what these clauses would protect yet on something as significant as valued as spiritual and as emotional as the white crosses Dail Jones’ amendments fail. They fail the community. They raise expectations that things like that will be protected but we know that in fact they will not be. So these clauses are a fallacy. They are deceptive. They distort the beliefs the understandings and the values that are held by our community. They raise expectations; the community thinks its values will be protected but they will not be. They are absolutely unnecessary. 
Some of us here who try to be good lawmakers take the point of view that we are in a privileged position here in this House and that we are required as part of our service to the community to make sure that when we enact law it is good law it has a good effect for the people of our communities and it makes a positive contribution to their lives. None of us should be supporting this ridiculous part. It is just one of a number of fallacies in the bill but none of us should support it. It is not good law. Even Labour members including Russell Fairbrother have made it very clear that Labour acknowledges that it has no use whatsoever. It is so simplistic that it will have no effect whatsoever anyway. I guess in part that is why those members do not mind putting it in the bill—because it has no effect. But this is law and one does not mess around with it. It is a privilege to be in this House. We need to make sure that what we pass here is good law that it does protect our citizens and that it does provide them with some positive outcomes. Yet here we are debating a whole part of a bill that is meaningless. 
Hon MARK BURTON (Minister of Defence) 
: 
 I move  
That the question be now put 
. 
Hon GEORGINA TE HEUHEU (National) 
: 
 I am very grateful for the opportunity to take a call because I want to say I am very pleased to see people sitting in the gallery and they ought to know and be aware that this part purportedly gives all other New Zealanders—who perhaps have not had the opportunity under previous parts—the opportunity to apply to the High Court for various orders. But as previous speakers have said it is a sham. 
I would like to ask the Minister in the chair first of all what a natural person is. Is that meant to distinguish people who are unnatural? Is it some cunning attempt to bar or block out say my colleague Maurice Williamson? Because I really take umbrage at that. I have not been present in the Chamber the whole of the evening but if the Minister has not explained the meaning of a natural person as opposed to an unnatural one then I think he should. If one is a person surely one is a natural person and presumably one has the right to apply for these customary orders. But to whom and in what circumstances does this provision apply? I do not think anybody—certainly not anybody on this side of the Chamber and I do not think anybody on the other side of the Chamber either—actually understands whom it applies to and in what circumstances. I think John Tamihere implied that I can apply under this part. Well thank you very much but why would I go to the court expend precious money then spend more money giving public notice of my application to do something that I probably could do anyway and that probably most New Zealanders could do? It is just a sop. It is a sham. 
In contrast to others who say that this part is a Winston Peters’ part I say that in reality the whole bill is a Winston Peters’ bill because without him that side could not put it into effect. It is no credit to him or his band of 13 happy people I might say. But the whole thing is so that Winston Peters can go up and down the country saying to Maori: “Your mana is protected.” and saying to all other people: “Your mana is protected too.” It is meant to be protected in this part. How can that be? This part is absolutely complex. Nobody knows whom it is meant to apply to and in what circumstances. The Minister will not tell us. He should at least take notice of the fact that there are people sitting in the gallery who have a right to know whether they can go to the court and have their customary practices recognised. The Minister is nodding to the group sitting up in the centre of the gallery but despite his having given them a sign I do not know whether those people are any the wiser. 
The CHAIRPERSON (H V Ross Robertson) 
: The debate is inside the Chamber. 
Hon GEORGINA TE HEUHEU 
: I am speaking on this part of the bill Mr Chairperson. What activity might those fine gentlemen sitting up there—those great New Zealanders—apply to the court for recognition of and why would they bother? 
The CHAIRPERSON (H V Ross Robertson) 
: The member must address the Chamber. 
Hon GEORGINA TE HEUHEU 
: And at what cost are they meant to do that? This is a cynical provision from this Government to allow Winston Peters to go up and down the country saying: “There is one law for all. We are all equal. Here you are Maori; you can apply under these parts. Here you are all the rest of you you go under these parts.” I think that in any event no matter what John Tamihere says the limitations clause in this part probably blocks Maori out anyway. I cannot imagine the Government would give them two bites out of the cherry no matter what my colleagues might say. 
Hon RUTH DYSON (Minister for ACC) 
: 
 I move  
That the question be now put 
. 
A party vote was called for on the question  
That the question be now put. 
Ayes 66 
New Zealand Labour 51; New Zealand First 13; Progressive 2. 
Noes 54 
New Zealand National 27; Green Party 9; ACT New Zealand 8; United Future 8; Maori Party 1; Independent: Awatere Huata. 
Motion agreed to. 
The question was put that the following amendment in the name of Metiria Turei to clause 57 be agreed to: 
to omit subclause (1). 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 11 
Green Party 9; Maori Party 1; Independent: Awatere Huata. 
Noes 109 
New Zealand Labour 51; New Zealand National 27; New Zealand First 13; ACT New Zealand 8; United Future 8; Progressive 2. 
Amendment not agreed to. 
The question was put that the following amendment in the name of Metiria Turei to clause 65 be agreed to: 
to omit this clause. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 11 
Green Party 9; Maori Party 1; Independent: Awatere Huata. 
Noes 109 
New Zealand Labour 51; New Zealand National 27; New Zealand First 13; ACT New Zealand 8; United Future 8; Progressive 2. 
Amendment not agreed to. 
The question was put that the following amendment in the name of Metiria Turei to clause 67 be agreed to: 
to omit paragraphs (b) (c) and (d). 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 11 
Green Party 9; Maori Party 1; Independent: Awatere Huata. 
Noes 109 
New Zealand Labour 51; New Zealand National 27; New Zealand First 13; ACT New Zealand 8; United Future 8; Progressive 2. 
Amendment not agreed to. 
The question was put that the following amendment in the name of Metiria Turei to clause 71 be agreed to: 
to omit subclauses (1) and (2). 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 10 
Green Party 9; Maori Party 1. 
Noes 110 
New Zealand Labour 51; New Zealand National 27; New Zealand First 13; ACT New Zealand 8; United Future 8; Progressive 2; Independent: Awatere Huata. 
Amendment not agreed to. 
The question was put that the following amendment in the name of Metiria Turei to proposed new clause 58 set out on Supplementary Order Paper 302 in the name of the Hon Dr Michael Cullen be agreed to: 
to omit this clause. 
A party vote was called for on the question  
That the amendment to the amendment be agreed to. 
Ayes 10 
Green Party 9; Maori Party 1. 
Noes 110 
New Zealand Labour 51; New Zealand National 27; New Zealand First 13; ACT New Zealand 8; United Future 8; Progressive 2; Independent: Awatere Huata. 
Amendment to the amendment not agreed to. 
The question was put that the following amendment in the name of Metiria Turei to proposed new clause 60 set out on Supplementary Order Paper 302 in the name of the Hon Dr Michael Cullen be agreed to: 
to omit this clause. 
A party vote was called for on the question  
That the amendment to the amendment be agreed to. 
Ayes 10 
Green Party 9; Maori Party 1. 
Noes 110 
New Zealand Labour 51; New Zealand National 27; New Zealand First 13; ACT New Zealand 8; United Future 8; Progressive 2; Independent: Awatere Huata. 
Amendment to the amendment not agreed to. 
GERRY BROWNLEE (Deputy Leader—National) 
: 
 I raise a point of order Mr Chairperson. It is relevant to the vote. Can you just clarify for us this relatively minor point perhaps as far as the results are concerned. With regard to the Progressives I thought the Progressive Party had to have one member in the Chamber in order for its vote to be cast. 
Hon Dr Michael Cullen 
: In the precincts. 
GERRY BROWNLEE 
: Precincts of Parliament. Well that does immediately present a little bit of a problem I might say given our intelligence on this particular issue and it is not one perhaps that we want to be pushed too far. I know that the matter was brought to the Business Committee. However I do recall that our view was that if the Progressives wanted to cast its two votes it had to have one member here—certainly in the precincts of Parliament and we do not have a problem with that. Perhaps the whip casting the vote could stand on the floor of the House and give us that assurance. 
The CHAIRPERSON (H V Ross Robertson) 
: All I can say to that is that all members are honourable members. 
Hon Dr MICHAEL CULLEN (Leader of the House) 
: 
 I raise a point of order Mr Chairperson. It has been ruled on a number of occasions by previous Speakers and Chairs that the integrity of the voting cannot be questioned in the House. 
The CHAIRPERSON (H V Ross Robertson) 
: Can I just say that all members are honourable members. Their word is their bond and if it is found to be otherwise they will suffer the consequences. 
The question was put that the following amendment in the name of Metiria Turei to proposed new clause 61 set out on Supplementary Order Paper 302 in the name of the Hon Dr Michael Cullen be agreed to: 
to omit this clause. 
A party vote was called for on the question  
That the amendment to the amendment be agreed to. 
Ayes 11 
Green Party 9; Maori Party 1; Independent: Awatere Huata. 
Noes 109 
New Zealand Labour 51; New Zealand National 27; New Zealand First 13; ACT New Zealand 8; United Future 8; Progressive 2. 
Amendment to the amendment not agreed to. 
The question was put that the following amendment in the name of Metiria Turei to proposed new clause 62 set out on Supplementary Order Paper 302 in the name of the Hon Dr Michael Cullen be agreed to: 
to omit this clause. 
A party vote was called for on the question  
That the amendment to the amendment be agreed to. 
Ayes 11 
Green Party 9; Maori Party 1; Independent: Awatere Huata. 
Noes 109 
New Zealand Labour 51; New Zealand National 27; New Zealand First 13; ACT New Zealand 8; United Future 8; Progressive 2. 
Amendment to the amendment not agreed to. 
The question was put that the following amendment in the name of Metiria Turei to the amendment to clause 66 set out on Supplementary Order Paper 302 in the name of the Hon Dr Michael Cullen be agreed to: 
to omit subclause (1). 
A party vote was called for on the question  
That the amendment to the amendment be agreed to. 
Ayes 11 
Green Party 9; Maori Party 1; Independent: Awatere Huata. 
Noes 109 
New Zealand Labour 51; New Zealand National 27; New Zealand First 13; ACT New Zealand 8; United Future 8; Progressive 2. 
Amendment to the amendment not agreed to. 
The question was put that the following amendment in the name of Metiria Turei to proposed new clauses 66A and 66B set out on Supplementary Order Paper 302 in the name of the Hon Dr Michael Cullen be agreed to: 
to omit these clauses. 
A party vote was called for on the question  
That the amendment to the amendment be agreed to. 
Ayes 11 
Green Party 9; Maori Party 1; Independent: Awatere Huata. 
Noes 109 
New Zealand Labour 51; New Zealand National 27; New Zealand First 13; ACT New Zealand 8; United Future 8; Progressive 2. 
Amendment not agreed to. 
The question was put that the following amendment in the name of Metiria Turei to the amendment to clause 67 set out on Supplementary Order Paper 302 in the name of the Hon Dr Michael Cullen be agreed to: 
to omit paragraph (a). 
A party vote was called for on the question  
That the amendment to the amendment be agreed to. 
Ayes 11 
Green Party 9; Maori Party 1; Independent: Awatere Huata. 
Noes 109 
New Zealand Labour 51; New Zealand National 27; New Zealand First 13; ACT New Zealand 8; United Future 8; Progressive 2. 
Amendment to the amendment not agreed to. 
The question was put that the following amendment in the name of Metiria Turei to the amendment to clause 71 set out on Supplementary Order Paper 302 in the name of the Hon Dr Michael Cullen be agreed to: 
to omit subclause (3). 
A party vote was called for on the question  
That the amendment to the amendment be agreed to. 
Ayes 11 
Green Party 9; Maori Party 1; Independent: Awatere Huata. 
Noes 109 
New Zealand Labour 51; New Zealand National 27; New Zealand First 13; ACT New Zealand 8; United Future 8; Progressive 2. 
Ayes 11 
Green Party 9; Maori Party 1; Independent: Awatere Huata. 
Noes 109 
New Zealand Labour 51; New Zealand National 27; New Zealand First 13; ACT New Zealand 8; United Future 8; Progressive 2. 
Amendment to the amendment not agreed to.Amendment to the amendment not agreed to. 
The question was put that the following amendment in the name of Metiria Turei to proposed new clause 71A set out on Supplementary Order Paper 302 in the name of the Hon Dr Michael Cullen be agreed to: 
to omit this clause. 
A party vote was called for on the question That the amendment to the amendment be agreed to. 
The question was put that the amendments set out on Supplementary Order Paper 302 in the name of the Hon Dr Michael Cullen to Part 4 be agreed to. 
A party vote was called for on the question  
That the amendments be agreed to. 
Ayes 66 
New Zealand Labour 51; New Zealand First 13; Progressive 2. 
Noes 54 
New Zealand National 27; Green Party 9; ACT New Zealand 8; United Future 8; Maori Party 1; Independent: Awatere Huata. 
Amendments agreed to. 
A party vote was called for on the question  
That Part 4 as amended be agreed to. 
Ayes 66 
New Zealand Labour 51; New Zealand First 13; Progressive 2. 
Noes 54 
New Zealand National 27; Green Party 9; ACT New Zealand 8; United Future 8; Maori Party 1; Independent: Awatere Huata. 
Part 4 as amended agreed to. 
Part 5Amendments to Resource Management Act 1991  
GERRY BROWNLEE (Deputy Leader—National) 
: 
 Part 5 is where Mr Dail Jones of New Zealand First has truly excelled himself in the subterfuge he has attempted to put around the real meanings of this part. Essentially this is the part that imposes various aspects of the bill on to the Resource Management Act. In every sense the veto powers that National members spoke of right from the time the bill was first read in the House are back and reinforced.  
What do we mean by that? We mean that where a group of natural New Zealanders—most likely Maori—have a customary use right then that group will be able to exercise that right in a way that will be very very restrictive on district plans and on the interpretations the Environment Court can put on consent applications should they get that far. In fact it seems to us that if one of those reservations that New Zealand First wants to set up for Maori is established then that reservation will have its governance board and the board will produce a plan for how the various rights they have in that area are to be dealt with. That plan will end up being lodged with the local environment council or the district authority—whichever the case may be—and those provisions will then by default be required to be considered when it comes to any consent applications on adjacent land. It will not be hard for people to have those various rights. We should remember that we are talking about 10 percent of the coastline of this country being covered by this. John Tamihere the previous Minister for Land Information has been able to confirm how much of the coastline is involved. Those areas will be subject effectively to Maori veto when it comes to resource consent applications.  
We would have thought that this Government might listen to the many thousands of New Zealanders who are saying already that the Resource Management Act is difficult to deal with and that it is a massive brake on the capacity for the New Zealand economy to move even faster than it is at the moment. One might have thought that the Government would learn from its own experience in trying to deal with the issue of roading in Auckland—something frankly that in our view it has paid a little bit of lip service to and has no intention of doing anything serious about. But one would have thought that Government members might have learnt that the Resource Management Act is a very difficult process as it exists. They might have been saying: “Well let’s see if we can get some streamlined approaches to the way in which resource consents are dealt with in this country.” But no a Resource Management (Foreshore and Seabed) Amendment Bill is being split out of this bill somewhere. At some point in the debate we might find out what the intentions are— 
Hon Dr Michael Cullen 
: In the dead of morning. 
GERRY BROWNLEE 
: No doubt it will be in the dead of morning in the middle of the night the day before yesterday.  
The point is that the provisions in these clauses will simply make it more difficult for anyone to undertake reasonable activity in the areas that are covered either by those reservations or perhaps separately by the customary rights orders issued by the High Court or the Maori Land Court. What is the necessity of that? Surely the Resource Management Act currently protects those areas from adverse effects. Is that not its purpose? Why do we have to have particular provisions for Maori in that Act? I think it goes right to the nub of the problem when it comes to dealing with this bill.  
On a number of occasions during the select committee process I asked submitters who were making pleadings on behalf of Maori groups whether they considered themselves to be part of the Crown in this country. Repeatedly the answer was: “No. The Crown is something else. Maori is us. We are separate from the Crown and the Crown is something that owes us an obligation.” As long as that is the thinking and as long as we have a Government that allows that thinking to be perpetuated through this sort of legislation we are in trouble. 
Hon Dr MICHAEL CULLEN (Deputy Prime Minister) 
: 
 The amendments in this part very largely reflect the departmental report to the select committee. Very little in this is a reflection of any subsequent negotiations other than the usual governmental machinery processes that occur after a select committee report back. I think we ought to put it in context and it is important to remember that when we are dealing with the foreshore and seabed reserves we have to start from the fact that there is a high test for entry into those reserves. There is a test of continuity—[ 
Interruption 
] I ask the member whether we can just speak for a bit on what I was talking about first—in fact two things one after the other.  
With a foreshore and seabed reserve there is a high test. There is a test of continuity a test of contiguity and a test of exclusive use and occupation. A moment’s deliberation around that will immediately suggest to members if they care to think about it that these are not areas where there are likely to be a very large number of developmental proposals occurring. Almost by definition that is not likely to be the case. So members’ concerns around there being heaps of developmental issues occurring within them are actually not well placed.  
Secondly of course when the reserve is set up the reserve board is not the consenting authority. The board must draw up a management plan and that management plan is in effect incorporated into the coastal plan but the district regional authority and in some cases the unitary council remains the body that is responsible for the Resource Management Act procedures within that in terms of consenting procedures. So it is not a veto power at all. In so far as there is some consideration of veto power it is where there is a question of a severe adverse impact upon the ability to continue to operate a customary right. That is perfectly appropriate. A customary right is a property right. It is perfectly appropriate if somebody proposes to do something that has a severe adverse impact upon a property right for the holder of that property right to be entitled to say no unless there is some form of agreement between that holder and the person making the proposal.  
If parties on the right say they stand for property rights they cannot then turn round and say that somebody else can trample over those property rights without due regard for the interests of the people who hold those property rights. This I think comes back to the sneakiness of the Opposition. Their real position with this—as they know and we know in the Government—is that the vast majority of people who will hold these customary rights in terms of usage which are likely to be quite limited in addition to the fishing rights already protected will be Maori. The main objection from National and ACT is that we are actually protecting rights that will largely be held by Maori. Their view is actually quite clear. Their view is that if that is the case then for some peculiar reason that I do not understand to protect those rights is racist whereas to override rights that are overwhelmingly held by Maori is not racist.  
I think that is just about PC in reverse. It is about as silly as one could go in terms of logic around those kinds of issues. I think that emphasises once again the shallowness of the arguments put forward by National and ACT right the way throughout this debate. 
Hon Dr NICK SMITH (National—Nelson) 
: 
 The Minister in the chair the Hon Dr Michael Cullen is one who has been part of a Government making a commitment to simplify the Resource Management Act because even in the Government’s own commissioned reports that Act has been identified as a major bureaucratic cost for business and a major difficulty for addressing New Zealand’s infrastructure problems. The difficulty with the contribution we just heard from the Minister is that it is completely divorced from reality. 
Let me advise the Minister of the sort of nonsense that is going on in my area. Port Nelson Ltd reclaimed an area of just 4 hectares. Local iwi objected and because they could hold up a port company that is so critical to the wealth of my district that company was forced into doing a deal with iwi whereby 49 percent of the shares in the reclaimed land was vested in a company with themselves—that is there was a transfer of wealth estimated to be worth $2 million from the general public of Nelson to iwi. That was on the basis of a claim of customary rights in an area that is only 1 percent of the Nelson haven. 
This is exactly the sort of consequence that will come out of the provisions of this Government in this part and let me set out why. Iwi have a veto right over resource consents in those areas even though their right may be only as big as: “We launched the waka in that bay 150 years ago.” “We might have collected some hangi stones in that area.” or “We might have collected the odd pipi.” But suddenly iwi are able to use that right and expand it into a multimillion-dollar right. 
If members think the situation in Nelson is unique they need look only at the situation of Fergusson Wharf in Auckland. That concerns a reclamation that is worth over $100 million where equally so those customary rights and powers that are being transferred into the Resource Management Act will result in a huge transfer of wealth. 
It is interesting that the new Minister in the chair Damien O’Connor is one of the people whose constituents have been deprived of value through this very measure. He has been able to avoid questions in the local media but let me put them to him again today: is it fair that his Tasman constituents have wealth worth over a million dollars transferred to 920 people who affiliate to eight iwi? Is that fair and is that what he stands for? He indicates that his answer is “No.” Well why in heck is he supporting the provisions in this bill that will give that sort of leverage to the John Mitchells of the world who advance those sorts of arguments? 
Neither the Minister in the chair nor members opposite can pretend for a moment that they are going to sort out the problems of the Resource Management Act—all the spiritual nonsense and all the ways in which Maori are able to use the Act to gain huge commercial advantage. They cannot say that to their business audiences and in the next moment pass provisions like the ones in this part that give such enormous leverage to those who gain customary rights. 
If I were iwi I would be in there boots and all. I would be claiming those very customary rights in every nook and cranny of New Zealand as would iwi—not because they want to launch the waka not because they want to pick up the odd hangi stone and not because they want to take the odd pipi but because by gaining those customary rights they will be able to hold the wider community to ransom and make a fortune. 
It is a very sad situation indeed. This is a country that should be proud of its lack of corruption. We have long sat right up in the top ranks of countries yet what we see in this part is nothing less than a vehicle for corruption in terms of the way in which resource consents are granted. We will have iwi with their hands out saying to companies that are trying to do reclamations like supports and to Transit that is trying to build roads: “There will be no resource consent unless you pay us off.” I want to hear from members opposite why on earth we would want to make worse the already serious problems we have with the Resource Management Act. 
RODNEY HIDE (Leader—ACT) 
: 
 I rise to support the comments made by the Hon Dr Nick Smith. This is the part for graft and corruption in New Zealand. I want the record to show that New Zealand First voted for this bill which will see large parts of the foreshore and seabed in New Zealand being contested by Maori groups who can then demand money. We heard that from the Minister in the chair a little while ago Dr Cullen. He said that once they have that it is “a property right” and it is only fair and reasonable that hapu whanau and iwi get paid for any diminishing of that right. This is the part that will see large chunks of the foreshore and seabed with Maori having a veto right over any development. 
Hon Rick Barker 
: Rubbish! 
RODNEY HIDE 
: Mr Barker calls out that it is rubbish but that is exactly what the Minister Michael Cullen said. 
Hon Ken Shirley 
: But he’s right; it is rubbish. 
RODNEY HIDE 
: It is rubbish. The whole bill is rubbish but Michael Cullen just said that. And we know this: the honourable John Tamihere when he was Minister for Land Information said he felt that something like 10 percent of the foreshore and seabed would be subject to this. He went on TV tonight and said: “Well who knows? It could be a lot more.” And this is what New Zealand First is voting for and this is what this Government is voting for. Rick Barker calls that “rubbish”. Well hang on! Once there is a customary right in the Resource Management Act and someone wants to create an aquaculture farm and someone else to have a development on the foreshore and seabed whose permission do they have to get? They have to get the permission of the council—the territorial authority—and the permission of the iwi hapu or whanau who have that customary title. That is what the Minister said I tell Mr Barker who would have heard that if he had been paying attention. Then Michael Cullen said that it was only right and proper that money changed hands as a consequence. That is what he said. But that is extortion; that is graft; that is what this bill opens up the foreshore and seabed to.  
I say that Michael Cullen stood up in this Parliament and said that it was about property rights. Members should ask themselves what possible property rights are protected or enshrined by the Resource Management Act. That Act is all about undermining people’s property rights. That is what the Resource Management Act is about—and about setting up a political process to control and dictate with interest groups being able to lobby and extort money from legitimate property-right holders. It is not about property rights and I again ask the Government what was wrong with letting Maori have their day in court and stopping all this nonsense of opening up the foreshore and seabed to graft and corruption.  
I want to draw members’ attention to clause 74 “Matters of national importance”. It states: “Section 6 of the principal Act”—that means the Resource Management Act—“is amended by adding after paragraph (f) the following paragraph: (g) the protection of recognised customary activities.” That is a stand-alone clause in the very important Resource Management Act section that deals with matters of national importance. I ask the Minister in the chair Damien O’Connor whether that provision is confined to the foreshore and seabed. I ask the Minister to wake up. I know that it is late for the member but I ask whether clause 74 “Matters of national importance”—by which “the protection of recognised customary activities” is inserted into the Resource Management Act—applies solely to the foreshore and seabed or is generic. “Yes” or “No”? The answer is “Yes”. 
Dr WAYNE MAPP (National—North Shore) 
: 
 I want to pick up on a point that was dealt with by the Hon Dr Nick Smith. He noted the circumstances at Port Nelson. As a result of the use of the Resource Management Act the local iwi got 49 percent of the shares within a reclamation. That happened under the existing Resource Management Act. The money was paid because the port simply could not tolerate the problems of delay. It was cheaper in fact to pay the money and get the consent. What this bill will do is expand that tenfold. There are vastly greater prospects of that happening now under clause 93 which inserts new section 107A—hugely more prospects. In fact the Minister for the first time in this Parliament had the decency to admit it. There is actually a veto right contained in that clause. It is not a question of balancing interests; it is an actual veto right. The customary rights holder can simply say: “No” and that is it—no resource consent can be granted. Well of course we all know that a “Yes” can be obtained. A “Yes” will cost money. We know that it will cost a great deal more than the sort of thing that has happened at Port Nelson. It will happen many many more times.  
I particularly noted that Mr Hide spoke of 10 percent of the coastline. A minimum of 10 percent of the coastline according to the Maori caucus will be subject to customary rights orders. That will include ports. It will also include pipelines cables and all sorts of developments like marinas crossing points for launching ramps and jetties—we can name them and they will be caught. In each and every case where there are customary rights holders those holders could have the right to say no. When they have that right the only way it can be changed is by the exchange of money. That is the reality. Now at the select committee—and the chair of the committee knows this to be true—Transpower and Telecom companies that had spent a large sum of money with their lawyers because their submissions were legally presented were deeply concerned. There is no exemption for them in this clause and that was the point that was reasonably asked for. There is no exemption for strategic works. I know there have been some minor amendments to the legislation but at the end of the day under new section 107A there is still that veto. So what we have the spectre of now is— 
Jim Peters 
: Where is the veto? 
Dr WAYNE MAPP 
: New section 107A dealing with customary rights. And I add for the benefit of members of New Zealand First that a previous Minister in the chair Dr Cullen who no doubt has been dictating the terms of the deal with those fellows in New Zealand First said so in the Chamber. Those are the words he used so I do not want to hear any cant from his allies.  
In strategic works companies could be totally paralysed. This country already has problems around infrastructure—serious problems. We cannot afford to have those kinds of hold-ups imposed on an already complicated and difficult statute the Resource Management Act by this Government. On the one hand the Government says it supports the development of the country and says it is business-friendly and so on and so forth—I have heard that many times—but on the other hand at the same time it is passing legislation that works right against that.  
At the absolute minimum we would expect that there would have been an exemption for nationally important strategic works. Actually what the Government did was the complete opposite because in clause 74 under the Resource Management Act customary rights orders are noted as being the issues of national importance. It is kind of like putting the thing on its head—rather than the strategic works being of national importance to the benefit of all the people of New Zealand Maori and non-Maori alike we have elevated the position of the customary rights orders as the items of strategic importance. The Prime Minister said that it was just about hangi stones and things of that nature but it is a lot more. 
RUSSELL FAIRBROTHER (Labour—Napier) 
: 
 I have listened with increasing incredulity to the last three submissions from the other side and it can be only the lateness of the hour that is compounding an ill-informed view of the bill now before us. Essential to the concern of Mr Rodney Hide and Dr Wayne Mapp is the fact that a customary right order is extant at this moment. It was in existence last year the year before and right back to 1840. So we are talking about existing rights that pre-date the Resource Management Act. What this part of the bill does is simply create the provision for an adverse effects report if those existing customary rights undermine the national interest. So in a funny sort of way if we invert what Dr Wayne Mapp and Mr Rodney Hide were saying they are effectively agreeing with the bill. The “Alice in Wonderland” argument being put up by the Opposition is surely a reflection of the late hour dinner time and a lack of sustenance since because there is no logic or sense to their provisions.  
But they may be explainable for a more simple reason other than the lateness of the hour. Take for example the challenge issued by Mr Rodney Hide. In his normal bullying manner he went for a Minister in the chair who is not primarily responsible for this bill and demanded a yes or no answer when the answer itself was contained not in clause 74 which he spoke about but in clause 73(1). If he had bothered to read that he would not have wasted the time of the Committee for 5 minutes by bellowing in the eardrums of all those people at home trying to get to sleep by listening to this beautiful soporific voice and the lulling tones that most of us bring to this Chamber. He was bellowing them awake with great horror and shock at the tone of voice of someone in a debating chamber demanding an answer from the Minister when all the member had to do was cast his eyes over the bill in front of him. I guess that might be asking too much as it is asking too much of members opposite to get their heads around a concept which is essentially very very— 
Sandra Goudie 
: Concept? 
RUSSELL FAIRBROTHER 
: I said “concept” not “conception”. The member should not prick up her ears. I am not offering anything. I am talking about a simple fact of the matter; a concept of something that has been in existence since before any Pakeha were here since 1840; something that has been practised continuously on a very very small area of New Zealand—the foreshore and seabed. It is something that is happening right now before the bill passes. When the bill is passed it will continue to happen. If it does clash with the principles of national interest and the Resource Management Act then the adverse effects provisions arise and they protect the aims of that Act and the national interest. It is simple and perhaps that is what is so deceptive. It is not complicated and that is why people cannot understand it. If members opposite read the bill and spent less time sounding off we would all get home much earlier and this bill would be passed. This is a commendable part of the bill. The amendments to the Resource Management Act make entire sense and are deceptively simple and that is why members opposite cannot get their heads around it. I commend it to the Committee. 
Hon RICHARD PREBBLE (ACT) 
: 
 The member says that the bill is deceptively simple. Well I most certainty agree with the “deceptive” part and I think I agree with the “simple” part. The reality of this bill is that it is fundamentally racist. What is being proposed is that the Resource Management Act be changed so that all councils are required to protect recognised customary activities. We know from having read through the bill and having gone through the bogusness of “one law for all” that in fact they will all be Maori customary activities. The point I would like to make to our provincial lawyer is that he ought to know that under the common law before the Resource Management Act and before its previous planning Acts every New Zealander had the right to do any activity providing it did not cause a nuisance to his or her neighbour. That was the fundamental right of every New Zealander. Now I would not mind if the chairman of that select committee had stood up and said: “Let’s have an amendment to the Resource Management Act so that everybody’s customary activities can be protected providing they do not cause nuisance to others.”  
Russell Fairbrother 
: It does. 
Hon RICHARD PREBBLE 
: The member says it does—for everybody. Well that is sophistry because we have already established that the only customary activity is one that goes back to 1840 and apart from one regatta we have not yet discovered a single activity— 
Russell Fairbrother 
: On the foreshore. 
Hon RICHARD PREBBLE 
: —on the foreshore or anywhere else—that is non-Maori that is actually going to be covered by this clause. That is why it is fundamentally racist. That is a simple proposition and it is deceptive because the honourable member is not prepared to stand up and admit it. He would be a better member if he was prepared to get up and say as the chairman of that select committee: “Well we have got racial seats. We hold them all and we have decided to introduce a racial bill so that we can go on holding them.” That is why we have these amendments to the Resource Management Act.  
I make this statement as well. I repeat that ordinary Maori will not see as much as pipi out of this foreshore bill. They will not get a grain of sand. But this clause will enable the honourable member’s legal friends to get many many grains of gold from this bill. This is a gold-digger’s bill. 
Hon Parekura Horomia 
: Pipis! 
Hon RICHARD PREBBLE 
: Now the Minister of Maori Affairs interjects. I just say to him that in a year’s time when ordinary Maori discover that they have received nothing from this bill—no benefits whatsoever—that will be one of the reasons they—[ 
Interruption 
] Well they all had a vote and that is one of the reasons why he is toast. He is absolutely toast. He is not like our friend Dover Samuels who is already looking at his place in Surfers—he knows he is going. I think that the Minister of Maori Affairs is still under some sort of illusion that he might be able to recover his position in a year. There is not a chance because this bill is deceptively simple as the chairman of the select committee explained. It is deceptive all right and it is simple racism. He will discover that even his constituents are not in favour of that.  
This bill is an absolute disgrace. The only people who will benefit are the only people who have benefited from the Waitangi grievance industry—the lawyers the accountants the white shoes brigade or as Mr Peters likes to call it the “Browntable”. They will all benefit from this bill. They think it is wonderful. Maybe they will give him a campaign contribution but how many votes will they deliver to the member in 12 months’ time? I say to the Minister that he deserves to go. He should have made a stand against this bill. He should have said to his colleagues that a real Labour Government would not introduce a racist bill a real Labour Government would have allowed Maori their day in court and a real Labour Government would not introduce to the Resource Management Act a provision for the protection of recognised customary activities. 
JIM PETERS (NZ First) 
: 
 It is unfortunate that Part 5 has not already been incorporated into the Resource Management Act as it will be. If it had been then some of the erroneous comments that have already been made by various members of the Committee would have been seen in context. In that regard we should think about the comments made by Mr Fairbrother which place Part 5 in the straight Resource Management Act framework. If we do that the first thing that Opposition members ought to realise is that this so-called important provision in clause 74 which adds a paragraph to section 6 of the principal Act : “(g) the protection of recognised customary activities.” is only one matter of national importance under section 6 in Part 2. There is no hierarchy. There is no ranking order under Part 2. They are all matters of national importance. Case law will say that over and over again and it has said so. Regional plans district plans and other plans say just that and to imply that part of this bill selectively elevates this matter to a height that the other matters of national importance do not have is misleading. It is mischievous to make that assumption.  
If one does that then one can move very very quickly to the matter of the so-called veto which has been mentioned by various Opposition members. If those members present had read the bill and carefully read the so-called veto clause clause 93 which inserts new sections 107A to 107D they would see as Local Government New Zealand said a good set of criteria to guide decision making.  
Secondly that final decision does not constitute a veto because that decision does the following. First of all it goes through provision by provision. If we look very carefully at section 107A(2) we see the matters that the relevant authority must look at. It must consider the effects the area the degree to which the recognised customary activity must be carried out to the exclusion of other activities whether that customary activity can be exercised only in a particular area and whether it can be mitigated. In other words at the end of those considerable paragraphs (a) to (g) an authority considering the percentage— 
Phil Heatley 
: This man was a regional councillor. 
JIM PETERS 
:—that is right—and a regional council hearings committee or a district council committee would be doing just that. They would make a decision that if there were no longer any significant adverse effect—[ 
Interruption 
] After consideration of each of the items listed there a final decision would be made by the consent authority. Where is the veto that has been mentioned by Mr Hide? Where is the veto that has been mentioned by other members? In actual fact there is no such veto there implied or in any other way.  
Hon Dr Nick Smith 
: Of course there’s subsection (1). 
JIM PETERS 
: I say to the Hon Dr Smith that when one reads it one takes in the context of the provision relating to matters of national importance and one then takes the application that is before the hearings committee and carefully and selectively works through the criteria set there. That committee exhibiting balance will finally consider and make a decision. There is no implied veto. There is no alternative other than a proper and considerate decision being made. [ 
Interruption 
] If Mr Heatley were the applicant it could be made on his behalf the same as it could on anyone else’s behalf. It ill behoves members to come to this Chamber to go through the National Party’s 1991 Resource Management Act and to say otherwise.  
The other part of this bill that is highly significant is this: the select committee heard representations made by various national concerns and bodies particularly with regard to the vision of certain infrastructure and related operations. I am very pleased to say that the alarmist fears that were heard around the country and retailed over and over again about reclamations port operation and utilities not being able to go about their tasks were never ever realised.  
In actual fact if members concerned look very carefully at the whole of proposed new section 107B they will see the guidance the direction and the clarity. What does it say? It says contrary to the alarmist fears that were aired by certain members of this Committee that whether in Northland or Southland Timaru or Bluff this applies: “(2) In this section infrastructure work and its associated operations is limited to any infrastructure works and associated operations that are owned operated or carried out by 1 or more of the following:”. And who are they? They include the Crown a local authority a network utility operator and an electricity generator. I can recall numerous comments made by members of the National Party about Transpower and other utilities that would be severely compromised by this bill. In actual fact they even implied that wholesale government would stop.  
What does this provision state? It includes a port company or a port operator as defined by section 65OJ which covers one or two such as Northport and the Maritime Safety Authority. All those bodies will be able to carry on exactly as they did yesterday. If they have a work that has been planned and that has gone to the first consent stage they will be able to carry on as they did yesterday. In other words as the Rt Hon Winston Peters has already said very clearly what was there yesterday will be there tomorrow just as we knew it would be. The limitations are those that are considerably exercised in law and which are clearly outlined here.  
So my advice to members of the Opposition is please to read if only for the first time the language of the bill and then come to the Chamber and make their statements in the full light of the bill. They will be able to talk not about the past the present or something imagined but about the strict and express language that this bill uses. That strict express language will enable development to take place as it did yesterday. It will enable each one of those bodies to carry through. I am very pleased to acknowledge that New Zealand First has helped to make that possible. In other words this party supports commercial development. It supports the development of an infrastructure. This express provision allows just that to continue as it did yesterday and as it will do today and tomorrow. 
Dr PAUL HUTCHISON (National—Port Waikato) 
: 
 I am grateful for the opportunity to speak on Part 5 “Amendments to the Resource Management Act 1991”. To think that the Hon Michael Cullen and his Government said that they would simplify the Resource Management Act! Fortunately the member from the West Coast is here. His electorate has one of the longest stretches of coastline. The Resource Management Act has to be one of the most difficult processes as it stands particularly after the amendments of the Labour Government. What has the Government done to the people of New Zealand? It has put this Part 5 in the bill.  
The really basic test behind this bill is whether it would be simpler just to stick with the Court of Appeal’s Ngati Apa decision or to go down the line that the Labour Government has gone down. On just about every criterion—confusion complexity cost and many others—there is absolutely no doubt that it would have been much simpler to stick with the Court of Appeal’s decision. After all yesterday this document that I am holding—which is the redline edition according to Michael Cullen—was red-hot off the press.  
Hon Dr Nick Smith 
: He’s gone home to sleep. 
Dr PAUL HUTCHISON 
: He probably has gone home to sleep. Yesterday it was red-hot off the press. We notice in this redline edition that huge parts of the bill have already been deleted. I will speak on clauses 85 and 86. In the redline edition there is indeed a clause 85 and 86. But if we look at the Supplementary Order Paper we see that there is no clause 86. Where is it? I hope the Minister in the chair the Hon Damien O’Connor can explain to us where the missing clause 86 is. That clause happens to be of all things about the imposition of coastal occupation charges. I hope the Minister will take a call to tell us where clause 86 of the redline edition has gone to in the definitive Supplementary Order Paper because we do not see it there. Maybe the Government is just trying to deny the existence of the imposition of coastal occupation charges which to most New Zealanders is hugely important. Judging by those criteria of whether this bill of the Labour Government is more complex more confusing and more costly than if the Ngati Apa decision had been upheld here we have again—as it looks in the redline edition supplied to us yesterday by Michael Cullen—a complete cover-up. It is an absolutely classic example of why the Labour Government should not be passing this bill under urgency.  
 The Labour Government has in the secret of the night one of the most important bills on the parliamentary calendar which is being done under urgency and it gets it wrong. It gets it absolutely wrong.  
Let us just have a look at clause 84 “Matters to be considered by regional council”. Once again—[ 
Interruption 
] Well the Maori members opposite might be looking jocular but it was they who suggested that 10 percent of the coastline is likely to be involved in these reserves. What else is the Labour Government doing? It is putting 10 percent of the coastline in marine reserves by 2010. That is 20 percent of the coastline. Now those members have suddenly gone quiet. Dover Samuels has suddenly gone quiet. [ 
Interruption 
] It is up to 50 percent now. Whatever the figure is there is no doubt that the Labour Government is imposing on New Zealand complexity confusion and considerable cost.  
Let us just look at matters to be considered by the regional council. “A regional council when preparing or changing a regional policy statement must … take into account any relevant planning document …”. 
DAVID PARKER (Labour—Otago) 
: 
 Two speakers previously we saw the Hon Richard Prebble get to his feet and say that prior to the passage of the Resource Management Act “anyone could do anything so long as it did not cause a nuisance to others.”  
Hon Richard Prebble 
: Prior to any planning law. 
DAVID PARKER 
: Oh the member is saying now “prior to any planning law” because he actually said “prior to the Resource Management Act”. He obviously forgot about the Town and Country Planning Act. He obviously forgot about the Water and Soil Conservation Act. What nonsense! The reality is that customary use rights that are protected under this legislation have existed since 1840. What this provision says is that those rights ought not to be undermined by new Resource Management Act consents. That is no different from the principle that applies to existing uses under the Resource Management Act.  
When the Act came into effect some people already had rights to do things. Those things were called existing uses. No one could get a Resource Management Act consent if I had an existing use to do something that would be rendered nugatory by that Resource Management Act consent. Part 5 of the bill does no more than protect the existing use rights of those customary uses under the Resource Management Act. Indeed it does not actually afford them quite as much protection as is afforded to existing use rights because there are limited circumstances where the Minister can say: “This adverse effect this undermining of the customary use right because of national considerations ought to be permitted.” But the general proposition here is that Part 5 does not add lots of complexity— 
Dr Wayne Mapp 
: The member has misinterpreted the law. He is a lawyer who doesn’t know the law. 
DAVID PARKER 
: Yes I am a lawyer and I have appeared in the Planning Tribunal the Environment Court the High Court and the Court of Appeal on Resource Management Act matters so I do claim to have some understanding of these matters. It is true that all this is doing is effectively giving customary use rights existing use rights under the Resource Management Act. 
LARRY BALDOCK (United Future) 
: 
 In my comments on Part 5 I will talk first of all about the Resource Management Act review process that is under way. Most members will know that United Future is working closely with the Government the Minister for the Environment and the Associate Minister for the Environment on a review of the Resource Management Act. Most members of the business community and Resource Management Act practitioners are aware of it because the Minister has been going around the country saying that we are focusing in this review mostly on process and not on substance.  
We have been very careful to tell people that we are not touching Part 2 of the Resource Management Act because it would be difficult if we did. So members can imagine my surprise when I found that through clause 74 “Matters of national importance” we are actually putting into Part 2 of the Act the issue of customary rights orders. We have to ask why we are doing that when we find already under section 6 “Matters of national importance” reference to “The relationship of Maori and their culture and traditions with their ancestral lands water sites waahi tapu and other taonga.”  
Why is it necessary to add another category of ancestral connection orders? The answer is very simple. It is because New Zealand First and the Government are playing the game of trying to make out that these customary rights orders are for everybody when everyone knows they will actually be only for Maori. The idea that the Auckland regatta could get one which was debated a lot in the debate on Part 4 is absolutely ridiculous. We believe that it would be better if the Government and New Zealand First were simply honest—because honesty is always the best policy—and just told everyone that only Maori will get customary rights orders. That is OK with us in United Future because Maori are entitled to them where customary rights are legitimately proved to have been in existence from 1840. We are quite comfortable with that. But the sham of trying to pretend that customary rights orders will be applicable to Pakeha New Zealanders is totally dishonest. It leads to having to insert this extra category under “Matters of national importance” which could lead to some complications in the implementation of the Resource Management Act. We are trying to avoid that; we are trying to get it simplified. I make the point that the Government and New Zealand First would do best just to admit tonight in all honesty that this provision is only for Maori and remove it from the legislation so that we do not have any complications with the Resource Management Act. Then we could all get on with recognising genuine rights. I believe that most good New Zealanders would be happy to do so.  
I will make some comments about the new clause 100 “Vesting of reclaimed land”. When the original version of the clause first appeared in the bill representatives from ports all around the country queued up before the Fisheries and Other Sea-related Legislation Committee because they were obviously very concerned about what was being taken away from them. A strange policy was emerging—a policy that had nothing at all to do with the Ngati Apa case—whereby henceforth the Government would not allow anybody who had reclaimed land raised it from the foreshore and seabed and made it into dry land that could be walked on driven on and built on to have private title to it any more. Yet it has been fine in all previous years for that title to be issued.  
In fact it is just and right for it to be issued. If someone applies for a resource consent and pays all the costs of reclaiming the land building the retaining walls filling it all in and everything else why ought that person not then be able to claim private title to it? If the resource consent has been given it would seem entirely logical that a fee simple title to that land should be allowed. But no in the initial bill along came the land-grabbing Department of Conservation which thought that this legislation was a way in which it could hang on to some more land and only allow for 50-year leases in the future. That was totally unacceptable to the port companies. They all appeared before the select committee. The Timaru port people who have their own Act—a very good Act which they are very lucky to have—complained because they were going to see this removed. 
It is good to see that many of those issues are being addressed in the amendments the Minister is now proposing except that there will be only a small window of opportunity for someone to sneak through and still get perhaps a title or at least a protectoral lease. 
PHIL HEATLEY (National—Whangarei) 
: 
 I too would like to address these amendments to the Resource Management Act. I do so because I am intrigued by the changes—the extreme amendments I have to say—the Government wants to make on behalf of Maori in order to appease them in some way. I do so also because I am on the Primary Production Committee considering the Aquaculture Reform Bill. 
Members will recall that that bill also deals with amendments to the Resource Management Act. The Labour Government has given Maori 20 percent of marine space as some sort of horse-trading action for silence on the foreshore and seabed legislation. It is interesting to me because we see particularly in these amendments to the Resource Management Act as has been pointed out by Richard Prebble of ACT that the only winners in Part 5 are the lawyers the accountants and that industry—that gravy train. That gravy train is pushed on by the Resource Management Act at present. It is also fed by the Treaty of Waitangi industry and is now being given an extra boost through this legislation particularly Part 5.  
We know that the quid pro quo deal—the 20 percent of aquaculture space given to Maori—has not shut them up. They are not satisfied with that deal. They have horse-traded and have come back and said: “No 20 percent isn’t enough and we’re not going to be silent.” They are not happy with this bill Part 5 and these Resource Management Act amendments.  
Clause 100 “Vesting of reclaimed land” for a start deals with an issue that our port companies around the country are having to grapple with. Maori are not satisfied with even that side of it. They will find themselves in court seeking their justice and so will everyone else. Every New Zealander is dissatisfied with this legislation because when it comes to deciding customary rights ownership access and issues to do with the Resource Management Act no one in the courts or outside the courts will get any satisfaction at all.  
I would particularly like to bring to members’ attention the restrictiveness of clause 100 and the clauses following it that deal with the issue of reclaimed land. There has been a lessening of some restrictive provisions that originally related to the reclamation issue. We know that representatives from port after port filed into the select committee and they also put their case forward as a group. They were concerned that they needed a right in perpetuity or at least to have some sort of right of renewal or right of first refusal process to have certainty for the future. They have put in extreme expenditure and effort through years of going through the Resource Management Act process to get original consents to reclaimed land.  
Marsden Point port is a case in point. I was interested to listen to the member Jim Peters who is a shareholder on my behalf and on Dover Samuels’ behalf as Northland MPs because he draws a salary from the regional council. He draws a salary from the taxpayer and from the ratepayer and he is sitting in this Chamber as a shareholder putting forward the case that will undermine his port. That reclamation at Marsden Point will undermine Dover Samuels’ port and it will undermine my port. So there we have it. The member paid by the Northland ratepayer is fighting the Northland ratepayer. 
Hon RICK BARKER (Minister for Courts) 
: 
 I move  
That the question be now put 
. 
RICHARD WORTH (National—Epsom) 
: 
 What a great choice and a privilege it is to be able at 11.20 p.m. on 17 November to talk about this really critical part. As I look across a crowded debating chamber to the Maori members on the Government benches I can so easily reflect that some members have made no contribution at all to this debate. I would like to hear from Mahara Okeroa. He has strong views on these issues. What has Dave Hereora who is with me on the Justice and Electoral Committee said on these issues? Absolutely nothing! What can he contribute? It may be the same answer—absolutely nothing. But he should be given the opportunity to contribute. That is why I encourage those who are present in the debating chamber to make a contribution. In this call which I hope may be one of many that I make as this debate runs on into late tomorrow afternoon I would like to comment on two particular things. Those two particular things concern clause 83.  
Clause 83 is concerned with the contents of New Zealand coastal policy statements. It is a sadness about the Resource Management Act that we have a great plan for national policy statements but what has happened to them? They were reduced to only one which was a New Zealand coastal policy statement full of fudge and waffle. So in clause 83 there are provisions that add further statutory criteria relating to the protection of recognised customary activities. But worse still is an old issue that bedevils the Resource Management Act—which has in my view unnecessarily delayed the Local Government and Environment Committee—concerning iwi planning documents. I am sure that members of the committee will be very much aware that there are iwi planning documents of incredible variety ranging from the sophistication of Ngai Tahu to the poor work that Tainui has done recently. There should be an opportunity taken in this legislation to correct those issues so that iwi planning documents have a credibility and a power that enable them to have a real role in the context of the issues that regional councils and territorial authorities have to deal with. I look at the young Minister David Benson-Pope who is seated opposite me and who has some great charge from the present Government to revamp the Resource Management Act. I ask what he is doing about that. We know the answer to that. Sadly it is nothing much.  
In the course of this debate I have touched on an issue that I think members need to reflect more fully on. It is that although issues of Maoriness were very relevant in 1840 and remained relevant for many years they are of much less significance now. They are of much less significance for a number of reasons but maybe the most significant of those reasons is the fact that Maori and non-Maori have intermingled. Whereas it was possible at one stage to talk in New Zealand of Maori and Pakeha there is an uneasiness about using those classification tags now. A happier way to describe those issues in a country that is now blessed with a strong ethnic and cultural diversity is perhaps to talk about Maori and non-Maori. It is appropriate in the context of this part particularly with the emphasis on the Resource Management Act and the issues in that significant statute that touch on iwi consultation iwi planning documents and those things to talk for a moment about what a Maori may be. I raised this in the debate on an earlier part and I think that I attracted a good deal of interest from members like Mahara Okeroa who are the new philosophers who are leading Maoridom through 2004. It certainly will not be into the new Government that will sit in Parliament in 2005 because those who currently sit on the Government benches will be sitting over here in Opposition and those who are on the Opposition benches will be sitting quite determinedly over there in Government. 
Hon DAVID BENSON-POPE (Minister of Fisheries) 
: 
 I move  
That the question be now put 
. 
METIRIA TUREI (Green) 
: 
 I am very pleased that we have managed to get a call on Part 5 since the Greens have a large number of amendments to it—and I am sure members are all pleased to hear that. I want to describe those amendments to members so that they can be clear about the changes the Greens want to see in Part 5. We are making an amendment to the new clause 79 which concerns section 33 of the Resource Management Act. That deals with the transfer of powers and effectively it allows local government to delegate decision-making authority to a variety of organisations including iwi authorities. The power contained in section 33 to delegate authority has never in the history of the Resource Management Act ever been used to delegate any authority of any description to any Maori organisation—not one single local authority has ever used that provision to delegate decision-making authority to Maori. That is an absolute disgrace. There are many Maori organisations that have expertise and that know and understand the locality to which a variety of decisions could be delegated but never has a local authority used that delegating power.  
We have made amendments to make sure that not just iwi authorities but the holders of customary rights orders the holders of territorial customary rights orders iwi and hapu are able to have any delegated authority given to them from the local authority. Really it is about trying to encourage a cultural change in local government in order to recognise that Maori can be trusted—although of course this Government fails to provide any kind of good model for that because this whole bill is about how Maori cannot be trusted. The Maori MPs in Labour and in New Zealand First clearly understand that this bill is about the failure to trust Maori to do the right thing and to share their resources with the rest of the country. Even given the fact that Maori have been sharing their resources with the whole of the country for the last 150 years—so many of our national parks our national heritage of maunga and lakes directly benefit the community and the nation as a whole because of Maori generosity—this Government fails to provide any kind of model of trust. Local authorities I guess can be excused to a very minor extent for not having any guidance certainly from central government as to how to trust Maori to make decisions about those issues for themselves.  
We have suggested an amendment to clause 86 which concerns the coastal occupation charges. Our amendment would ensure that a territorial customary rights holder would take a share of any coastal occupation charges over any area to which that order applies. It is perfectly reasonable for customary rights holders to have a share in those resources given the limited capacity that any Maori will have to exercise any kind of control over those areas under the new provisions for a territorial customary rights order. Our amendments to clause 89 through to clause 104 will ensure that the holders of customary rights orders and territorial customary rights orders will be taken into account if for example there is a plan change or a resource consent application. Our amendments remove the requirement that it is the council that has the discretion to determine whether a resource consent or plan change will have a significant adverse effect on customary rights. We have taken out that discretion and made it a matter of fact. We have taken out the requirement that it be a significant adverse effect; rather it can simply be an adverse effect. That will ensure that the apparent protection in this bill for customary rights—which are being traded for the customary rights that Maori will get in the courts—actually do have some kind of effect in the Resource Management Act and that councils have to advise the holders of those customary rights orders.  
They should have to tell them if things are happening in the areas to which those orders apply and that does not have to be a significant effect. A significant adverse effect is actually a very high threshold especially if it is left to the local authority to make that decision. If councils are failing to transfer powers under section 33— 
STEVE CHADWICK (Labour—Rotorua) 
: 
 I move  
That the question be now put 
. 
A party vote was called for on the question  
That the motion be agreed to. 
Ayes 66 
New Zealand Labour 51; New Zealand First 13; Progressive 2. 
Noes 51 
New Zealand National 27; Green Party 9; ACT New Zealand 6; United Future 8; Maori Party 1. 
Motion agreed to. 
The question was put that the following amendment in the name of Metiria Turei to clause 86 be agreed to: 
to omit the words “following subsection” and substitute the words “following subsections”. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 10 
Green Party 9; Maori Party 1. 
Noes 107 
New Zealand Labour 51; New Zealand National 27; New Zealand First 13; ACT New Zealand 6; United Future 8; Progressive 2. 
Amendment not agreed to. 
The question was put that the following amendment in the name of Metiria Turei to clause 86 be agreed to: 
to add the following new subsection: 
(4B)A regional council must in relation to any coastal marine area that is subject to a territorial customary rights order share equitably by agreement with the holder of the order revenue received from a coastal occupation charge. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 10 
Green Party 9; Maori Party 1. 
Noes 107 
New Zealand Labour 51; New Zealand National 27; New Zealand First 13; ACT New Zealand 6; United Future 8; Progressive 2. 
Amendment not agreed to. 
The question was put that the following amendment in the name of Metiria Turei to clause 90 be agreed to: 
to omit from new subsection (4) of section 94B of the principal Act the words “ in the opinion of the consent authority”. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 10 
Green Party 9; Maori Party 1. 
Noes 107 
New Zealand Labour 51; New Zealand National 27; New Zealand First 13; ACT New Zealand 6; United Future 8; Progressive 2. 
Amendment not agreed to. 
The question was put that the following amendment in the name of Metiria Turei to clause 90 be agreed to: 
to omit from new subsection (4) of section 94B of the principal Act the words “may adversely” and substitute the word “will”. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 10 
Green Party 9; Maori Party 1. 
Noes 107 
New Zealand Labour 51; New Zealand National 27; New Zealand First 13; ACT New Zealand 6; United Future 8; Progressive 2. 
Amendment not agreed to. 
The question was put that the following amendment in the name of Metiria Turei to clause 91 be agreed to: 
to omit from new subsection (4) of section 94D of the principal Act the words “ in the opinion of the consent authority”. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 10 
Green Party 9; Maori Party 1. 
Noes 107 
New Zealand Labour 51; New Zealand National 27; New Zealand First 13; ACT New Zealand 6; United Future 8; Progressive 2. 
Amendment not agreed to. 
The question was put that the following amendment in the name of Metiria Turei to clause 101 be agreed to: 
to insert in new clauses 2(2)(c) 3(1)(e) 5(4)(g) and 20(4)(g) of the First Schedule of the principal Act after the word “orders” in each case the words “ customary rights orders or territorial customary rights orders”. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 10 
Green Party 9; Maori Party 1. 
Noes 107 
New Zealand Labour 51; New Zealand National 27; New Zealand First 13; ACT New Zealand 6; United Future 8; Progressive 2. 
Amendment not agreed to. 
The question was put that the following amendment in the name of Metiria Turei to clause 104 be agreed to: 
to omit from proposed new regulation 10(2)(h) the words “ in the opinion of the consent authority may be adversely” and substitute the word “is”. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 10 
Green Party 9; Maori Party 1. 
Noes 109 
New Zealand Labour 51; New Zealand National 27; New Zealand First 13; ACT New Zealand 6; United Future 8; Progressive 2. 
Amendment not agreed to. 
The question was put that the following amendment in the name of Metiria Turei to the amendment to clause 79 set out on Supplementary Order Paper 302 in the name of the Hon Dr Michael Cullen be agreed to: 
to omit the proposed omission of words from this clause. 
A party vote was called for on the question  
That the amendment to the amendment be agreed to. 
Ayes 10 
Green Party 9; Maori Party 1. 
Noes 107 
New Zealand Labour 51; New Zealand National 27; New Zealand First 13; ACT New Zealand 6; United Future 8; Progressive 2. 
Amendment to the amendment not agreed to. 
The question was put that the following amendment in the name of Metiria Turei to the amendment to clause 79 set out on Supplementary Order Paper 302 in the name of the Hon Dr Michael Cullen be agreed to: 
to insert after the word “reserve” the words “holder of a customary rights order or territorial customary rights order iwi hapu “. 
A party vote was called for on the question  
That the amendment to the amendment be agreed to. 
Ayes 10 
Green Party 9; Maori Party 1. 
Noes 107 
New Zealand Labour 51; New Zealand National 27; New Zealand First 13; ACT New Zealand 6; United Future 8; Progressive 2. 
Amendment to the amendment not agreed to. 
The question was put that the following amendment in the name of Metiria Turei to the amendment to clause 89 set out on Supplementary Order Paper 302 in the name of the Hon Dr Michael Cullen be agreed to: 
to omit from new section 85A of the principal Act the words “a significant” and substitute the word “an”. 
A party vote was called for on the question  
That the amendment to the amendment be agreed to. 
Ayes 10 
Green Party 9; Maori Party 1. 
Noes 107 
New Zealand Labour 51; New Zealand National 27; New Zealand First 13; ACT New Zealand 6; United Future 8; Progressive 2. 
Amendment to the amendment not agreed to. 
The question was put that the following amendment in the name of Metiria Turei to the proposed new clause 93 set out on Supplementary Order Paper 302 in the name of the Hon Dr Michael Cullen be agreed to: 
to omit from proposed new section 107A(1) of the principal Act the words “ or is likely to have a significant” and substitute the words “have an”. 
A party vote was called for on the question  
That the amendment to the amendment be agreed to. 
Ayes 11 
Green Party 9; Maori Party 1; Independent: Awatere Huata. 
Noes 107 
New Zealand Labour 51; New Zealand National 27; New Zealand First 13; ACT New Zealand 6; United Future 8; Progressive 2. 
Amendment to the amendment not agreed to. 
The question was put that the following amendment in the name of Metiria Turei to proposed new clause 93 set out on Supplementary Order Paper 302 in the name of the Hon Dr Michael Cullen be agreed to: 
to omit from proposed new section 107A(2) of the principal Act the words “ or is likely to have a significant” and substitute the words “have an”. 
A party vote was called for on the question  
That the amendment to the amendment be agreed to. 
Ayes 11 
Green Party 9; Maori Party 1; Independent: Awatere Huata. 
Noes 107 
New Zealand Labour 51; New Zealand National 27; New Zealand First 13; ACT New Zealand 6; United Future 8; Progressive 2. 
Amendment to the amendment not agreed to. 
The question was put that the following amendment in the name of Metiria Turei to the amendment to proposed new clause 93 set out on Supplementary Order Paper 302 in the name of the Hon Dr Michael Cullen be agreed to: 
to omit proposed new section 107B of the principal Act. 
A party vote was called for on the question  
That the amendment to the amendment be agreed to. 
Ayes 11 
Green Party 9; Maori Party 1; Independent: Awatere Huata. 
Noes 107 
New Zealand Labour 51; New Zealand National 27; New Zealand First 13; ACT New Zealand 6; United Future 8; Progressive 2. 
Amendment to the amendment not agreed to. 
The question was put that the following amendment in the name of Metiria Turei to the amendment to clause 101 set out on Supplementary Order Paper 302 in the name of the Hon Dr Michael Cullen be agreed to: 
to omit the proposed omission and substitution of new clauses 2(2)(c) 3(1)(e) 5(4)(g) and 20(4)(g) of the First Schedule of the principal Act. 
A party vote was called for on the question  
That the amendment to the amendment be agreed to. 
Ayes 11 
Green Party 9; Maori Party; 1 Independent: Awatere Huata. 
Noes 107 
New Zealand Labour 51; New Zealand National 27; New Zealand First 13; ACT New Zealand 6; United Future 8; Progressive 2. 
Amendment to the amendment not agreed to. 
The question was put that the amendments set out on Supplementary Order Paper 302 in the name of the Hon Dr Michael Cullen to Part 5 be agreed to. 
A party vote was called for on the question  
That the amendments be agreed to. 
Ayes 74 
New Zealand Labour 51; New Zealand First 13; United Future 8; Progressive 2. 
Noes 44 
New Zealand National 27; Green Party 9; ACT New Zealand 6; Maori Party 1; Independent: Awatere Huata. 
Amendments agreed to. 
A party vote was called for on the question  
That Part 5 as amended be agreed to. 
Ayes 66 
New Zealand Labour 51; New Zealand First 13; Progressive 2. 
Noes 52 
New Zealand National 27; Green Party 9; ACT New Zealand 6; United Future 8; Maori Party 1; Independent: Awatere Huata. 
Part 5 as amended agreed to. 
Part 6Provisions relating to public foreshore and seabed register recognition agreements and other matters  
Hon KEN SHIRLEY (ACT) 
: 
 I raise a point of order Mr Chairperson. I did not raise this point of order and contest your decision prior to taking the vote we have just completed but I point out to you that I have been calling for an hour and a half. I was the ACT party’s member on the Fisheries and Other Sea-related Legislation Committee but it appears to me that you studiously avoided acknowledging my call. As the person who represented ACT right through the select committee process I would like some assurance that I will get a call on Part 6 having been denied one on Part 5. 
The CHAIRPERSON (Hon Clem Simich) 
: I thank the member for raising that. He has that assurance. I shall do my best to be fair. 
GERRY BROWNLEE (Deputy Leader—National) 
: 
 This clause is a piece of work on which Dail Jones really should be patting himself on the back. This part is an amazing piece of work. These clauses are absolutely amazing and Dail Jones will forever be walking around in white shoes with a gold dangly around his neck known as the man who came to town with the chequebook to buy off all the applicants to the territorial title claims and territorial rights claims to the seabed and foreshore. 
When one reads through the bill one sees that it starts off very gently and makes comments about the chief executive of the Ministry of Justice having to register all these titles rights agreements and various other things. But then when we look at the actual meat and potatoes of the part—that is right around clause 112 which I know a lot about and clause 115 which I think is now called clause 115A—we see a picture especially if we go to the latter clause 115 whereby there is nothing in this bill to stop any appropriately appointed Government Minister doing a deal with Maori treaty claimants to give them title full beneficial ownership to the seabed and foreshore. That Government Minister would most likely be the Minister in charge of Treaty of Waitangi Negotiations. 
As we spoke of before in another clause—because it is in the bill twice just to make sure that Tainui know it is in there—this is the “Tainui get us off the hook.” clause the “Welcome back to the camp Nanaia Mahuta!” part of the bill. We know that Raglan Harbour is very shortly to be signed over—the Minister of Maori Affairs has just confirmed it—lock stock and barrel to Tainui supposedly as a treaty settlement. This bill that is to protect the seabed and foreshore and to put it into public ownership is going to allow just that.  
Then when we look back in the bill to the changes that were made around clause 112 we see that the Minister of Maori Affairs and the Minister in charge of Treaty of Waitangi Negotiations can go to— 
Hon Parekura Horomia 
: I will go to the High Court! 
GERRY BROWNLEE 
: I will tell them that; the poor fellow has not read the bill!—a Maori claimant group a group claiming a territorial right or a customary right on a stretch of coastline and can say: “All right we’ll negotiate with you. We will get all this done we will ratify it but you’ll guarantee to hand the title back to the Crown—and we’ll give you a cheque.” That is what clause 112 states.  
I am fascinated that Mr Jones is sitting there wondering what he has done. His colleagues are sitting next to him saying: “No he can’t have.” Well he has. Clause 112(1) is very simple: “The Attorney-General and the Minister of Maori Affairs may enter into an agreement with a group to recognise that but for the vesting of the full legal and beneficial ownership of the public foreshore and seabed in the Crown …” and so on. Once they have agreed the applicant group simply takes the affidavit the bit of paper signed by those two Ministers that says clauses 28 and 31 have been satisfied.  
Well when we go back and have a look at those clauses we see that they will be given just a bit of a cursory glance. The Ministers do not have to prove a darn thing as they would in a court. Oh the thumbs are up over there; they know it; they do not have to prove a thing. They will get the affidavits and do the little sweetheart deal and the High Court will have no choice other than to give the rights. Then they will go back into the backroom and work out just how the cheque—it will already have been negotiated how big it is—will be paid over. 
I can see the Minister in charge of the bill shaking his head. Well I tell Mr Cullen that I am sorry but throughout the day— 
Hon Dr MICHAEL CULLEN (Deputy Prime Minister) 
: 
 The member has become visibly deflated during the day. As the debate has gone on the arguments have got thinner and thinner and more tenuous from the Opposition. Let us just try and deal with what on earth the member has been trying to make out of the bill this time. 
Clause 115A assures Maori that this bill does not affect existing or future treaty settlements so what does that mean? What it means is this: if some Government—as the National Government did in 1996—entered into a treaty agreement to hand over the foreshore and seabed it would have to pass an Act. What does a Government have to do now? It has to pass an Act. In other words nothing changes at all. Again I say that nothing changes at all. 
But that member will lie awake at night worrying that that beach where he is the most famous surfer—a man who comes in day after day amazing everybody with his skill—might pass into private Maori ownership.  
Sitting suspended from 12 midnight to 9 a.m. (Thursday) 
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