Parker David: Marine and Coastal Area (Takutai Moana) Bill — In Committee 
Parker David: Marine and Coastal Area (Takutai Moana) Bill — In Committee 
[Volume:670;Page:17394] 
Hon DAVID PARKER (Labour) 
: 
 In my opinion the most important part of Part 4 is as the Attorney-General has already adverted to the way in which people can have rights recognised under this legislation—whether it can be done through an Act of Parliament or just by agreement through the Minister or whether it needs to be done through the court. I want to come back to that point but before I do I want to say that I was reflecting overnight on the tone of this debate which I am pleased to say is quite measured. I think it reflects well upon us as a Parliament that it is measured. 
Paul Quinn 
: Thank you David. 
Hon DAVID PARKER 
: Mr Quinn says thank you. 
Chris Hipkins 
: He hasn’t participated in the debate. 
Hon DAVID PARKER 
: Mr Quinn has not yet taken a call on a number of the parts so maybe that is one of the reasons why his contribution has been measured. I think it is important to put on record the sorts of comments that were being made at the Committee stage of the debate in 2004 and I will quote some of them. 
Dr Wayne Mapp a current Minister in the Government said: “What the Government is doing here is clearly preferring Maori above all members of the community … So it is very very clear that we have two classes of citizenship. Maori are in the preferred position.” That was Dr Mapp. Gerry Brownlee now Leader of the House and currently the Minister away in charge of earthquake recovery in Christchurch said: “The bill is designed to placate Maori with a cheque and convince other New Zealanders that everything is OK when it is not.” 
Grant Robertson 
: Outrageous! 
Hon DAVID PARKER 
: It is absolutely disgraceful. That bill did not go as far as this one does. The Hon Nick Smith said: “This bill is racist. This bill is flawed.” That was his contribution. 
Grant Robertson 
: He said that? Extraordinary! 
Hon DAVID PARKER 
: I am reading extracts from  
Hansard 
 in November 2004. We had contributions from Nick Smith later. He was responding to Dover Samuels who was responding to fears that had been rarked up in New Zealand that the Foreshore and Seabed Bill was going to prevent people from having a barbecue on the beach. Those comments had been made by a number of people in the National Party. Don Brash was one of them; Bill English from memory was one of them too. So Dover Samuels was saying that that was not the effect of the Foreshore and Seabed Bill and actually history shows that Dover Samuels was right. There is now agreement that that was never going to be the case. What did Nick Smith say? He said: “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.” That is absolutely irresponsible. This was never about the beach; it was about the part of the foreshore that is wet. Access for recreational purposes was never ever at risk and was expressly provided for in the Act. That was one of the most despicable acts of undermining race relations that we I hope will ever see in this Parliament. 
In the third reading after all that Gerry Brownlee again came back with comments. He was the National spokesperson on Maori Affairs at the time and that is why it is important that we remind New Zealanders how despicable these comments were. He said that “this is the first time a Government in New Zealand has passed a law that is as overtly racist as this one.” That was in reference to the Foreshore and Seabed Act which National now says was not good enough in terms of protecting Maori rights. But at the time National members were saying the Act went far too far. So when I hear those members including Tau Henare saying “Apologise apologise apologise”— 
Hon Tau Henare 
: That’s right; say sorry. 
Hon DAVID PARKER 
: —to members on this side of the Chamber in respect of legislation that was not perfect but was not nearly as bad as was presented and that was done against the climate of those sorts of comments I say to Mr Henare that he should look at himself and record his own statements on talkback radio. He was not in Parliament at the time but he was rarking things up on radio. 
I turn to a particular point of difference which is one of the largest differences between National and the Maori Party and the other parties in Parliament and that is whether agreements should be able to be made between a Minister and the Crown and then be given effect to by Parliament. The legislation as it came to the Maori Affairs Committee was even worse than that which has been proposed by the Attorney-General now and I acknowledge that change. It stated that there could be agreements between the Minister and claimant groups that would be given effect to by way of regulation without either parliamentary oversight or court oversight. The Supplementary Order Paper changes that and states that we can now have legislation to that effect. The Attorney-General says there is precedent for that because that is how the Ngati Porou settlement was given effect to. 
The position that other parties in this Parliament have got to is that we think there should be absolutely fulsome recognition of unextinguished Maori interests in the foreshore and seabed but we also think there should be no more than fulsome recognition of unextinguished customary interests. If it is more than fulsome recognition of an unextinguished interest it is not recognition of a common law right; it is actually a Treaty settlement. The mixture of these two concepts needs to be handled very carefully. Although we support Treaty settlements being pursuant to an Act of Parliament we do not support recognition of existing interests in the foreshore and seabed through Parliament. We think those things are more cost-effectively and more properly openly transparently fairly achieved through the courts. 
Paul Quinn 
: Gobbledegook. 
Hon DAVID PARKER 
: “Gobbledegook” says the “lawyer” from the other side. We already covered yesterday the issue that it is certainly not cheaper through Parliament; it costs over $2 million for every statute in this Parliament. So the cost of a statute giving effect to a foreshore and seabed agreement is probably worth more than the underlying interests—a bit of a nonsense in the first place—and it certainly costs more than the alternative process through the courts. There are a range of interests— 
Paul Quinn 
: They’re not allowed legal aid for a start. 
Hon DAVID PARKER 
: What was that? Not if we take legal aid into account? 
Paul Quinn 
: I said they’re not allowed legal aid under this bill. 
Hon DAVID PARKER 
: I was saying that even if we were to subsidise the cost of court processes it would be a lower cost to the taxpayer to do that than to do it through Parliament. It is patently clear that that is the case. That is what I was saying. 
Why are court processes important? There is not a balancing of interests here; there is recognition of extant existing Maori interests in the foreshore and seabed. We all in this Parliament now agree that that should happen. We did not agree back in 2004. National opposed that at the time most vociferously. But everyone in this Parliament now agrees that there should be proper recognition of continuing customary interests in the foreshore and seabed that have not been extinguished through history. Court processes though make sure that all relevant interests are taken into account because if we under-recognise something we are actually poking a stick in the eye of the Maori claimant. Many Maori claim that that is the effect of this legislation. Conversely if we go too far and recognise a customary interest that under common law would have been found to have been extinguished we are actually abrogating a public right in favour of a private right in respect of that section of Maoridom. The courts are the ones that are best placed to make that determination. 
Courts are well versed in ensuring that the interests of anyone who might be adversely affected are taken into account. They are well versed in protecting the property rights of Maoridom or indeed any other group against inappropriate confiscation. That has always been their central role. At times courts in New Zealand—and the old Ninety Mile Beach decision might be one of them—have got it wrong. Now that we have the court saying that there are extant interests and that they ought to be recognised why do we think Parliament should take that over? The High Court has always been the guardian of Maori—well not always. For the last two or three decades the High Court has been an effective guardian of Maori aspirations to property rights. Whether it be State-owned enterprise interests or whether it be pursuant to Treaty settlement assets being properly reserved to be available for Treaty settlements the High Court and the Court of Appeal have guaranteed those rights to Maoridom. It actually has not been Parliament that has led that. I am somewhat ashamed to say that it has not been Parliament that has led that. It has been the courts that have led that. Parliament has sometimes given recognition to that and set up processes that have facilitated that but it has not been Parliament that has been the primary guardian of those interests; it has been the courts. I think this legislation is wrong in saying that we—