Cullen Michael: Foreshore and Seabed Bill Resource Management (Foreshore and Seabed) Amendment Bill — Third Readings 
Cullen Michael: Foreshore and Seabed Bill Resource Management (Foreshore and Seabed) Amendment Bill — Third Readings 
[Volume:621;Page:17184] 
Hon Dr MICHAEL CULLEN (Deputy Prime Minister) 
: 
 I move  
That the Foreshore and Seabed Bill and the Resource Management (Foreshore and Seabed) Amendment Bill be now read a third time 
. I want to begin by thanking a number of people. I thank my caucus colleagues and particularly my Maori caucus colleagues for their support and their input throughout this process. I particularly thank my colleague Russell Fairbrother for his chairing of the select committee and Margaret Wilson for her continuous expert advice. Obviously I also want to thank New Zealand First members for their support and their careful consideration and advice on a range of issues. I thank United Future. In the end we could not arrive at an agreement but I think the differences between us were not very large at the end of day. I thank the officials who worked hard on this legislation particularly parliamentary counsel who were placed under enormous pressure in terms of some of the processes around amendments. 
This issue has challenged our sense of nationhood and our ability to encompass all the interests in our country. It has been a true test in this House of where parties stand in terms of New Zealand’s national interest and our ability to cohere as a nation. We need to understand some very simple things about this issue. 
The first is that it is about common law rights as they existed in 1840 at the assumption of sovereignty by the Crown. The fact that New Zealand did not become fully independently sovereign until 1947 is irrelevant in that respect. That is why that date is chosen and the fact that most of us who came since 1840 therefore do not qualify is I am afraid just our bad luck. 
Secondly it is about the Crown asserting clear ownership that having been thrown into some doubt in terms of its full meaning by the nature of the Court of Appeal decision in the case of NgatiApa and others. 
Thirdly the Court of Appeal did not say that Maori owned the foreshore and seabed even though that has been repeated any number of times on any number of media programmes that I have listened to and watched since that point. Indeed to quote the Chief Justice she said that before any particular group was likely to succeed in establishing customary land status there were a number of hurdles in fact in law to be crossed and I would assert that in my view those who won the NgatiApa decision were much less likely to cross those hurdles than some others in the country. So in fact it is much less likely that they will lose anything from this legislation than some others might possibly do. 
 Fourthly I think it is clear that this issue arose as an unintended consequence of Te Ture Whenua Maori Act 1993. Those who were in the House at the time know full well that that Act was never meant to apply to the foreshore and seabed but was meant to apply to dry land. So in so far as customary land status could be acquired through that Act it was an unintended consequence. 
I have to say I have sat here now for a couple of days listening to National wax lyrical about the failings in laws every one of which that party’s Government passed: the Resource Management Act Te Ture Whenua Maori Act and the Historic Places Trust Act of 1992 I think it was. So when we come to this House most parties are not saying that the process should be allowed to continue as it would have done without our changing the law. Even the Green Party says that we should have legislated to block off the possibility of private title in terms of freehold title and that we should have legislated in some form for access. Only the ACT party and the Maori Party have consistently stood for a clear position of allowing the process to go through. 
The territorial customary rights test in the legislation is high—as it should be under the law. What is in this legislation is not an invention of the common law test for territorial customary rights or aboriginal title; it is a codification in statute of the best expert advice we have had as to what those tests should be. In other words they are the very tests that the High Court should have had to apply if somebody had applied to that court under its inherent jurisdiction and the very tests in combination with the tikanga test that the Maori Land Court should have had to apply if there had been an application for customary land status. We have not imported anything new in that respect; we have tried as far as possible to reflect what the state of the law actually is. In New Zealand this is largely untested law because unlike Canada and Australia we have not proceeded through the common law jurisprudence in these matters in the past. That is why this is different. 
What the legislation does is remove the avenue of customary title. If we are to do that particularly in terms of the inherent jurisdiction of the High Court then there must be redress available to those who could have obtained customary title. It is utterly wrong—as was suggested this morning and I will come back to that—that the inherent jurisdiction should be abolished without something else being put in its place. So what we have in the legislation are two options for a successful applicant group in that respect. The first is a foreshore and seabed reserve which is modelled very much upon sections 338 to 340 of Te Ture Whenua Maori Act—quite deliberately modelled in that respect. That reserve will enable the successful applicant group to exercise a high degree of influence over the management of that particular area and the coastal management plan that it draws up will have to be taken account of. Indeed more than that it will have to be given regard to in terms of the management plan of the regional authority. Secondly the applicant group can enter into direct negotiations with the Crown in terms of looking at redress which is not money as so often the National Party immediately assumes—that there could be only one form of redress that one could ever engage in. 
I think it is fair to say there will still be disappointment amongst many Maori at the passage of this legislation but that disappointment is based upon a misapprehension of the actual meaning of the law. I want to repeat this because it is so important: the Court of Appeal did not say that Maori owned the foreshore and seabed; it said that the status of customary land could be tested before the Maori Land Court but that there were very significant hurdles in the way of any area of land being recognised. Indeed I think the Chief Justice went somewhat further and indicated that it was likely that only relatively isolated and small areas of land would be encompassed. The fact that 10 percent of the land above the foreshore and seabed is owned by Maori is relevant to only one of the tests in terms of territorial customary rights within the legislation. 
The legislation does provide that non-Maori can test their rights in that respect as well. Here we have had the extraordinary argument that if we end up in the position where the people who at the end of the day get those rights recognised are Maori that makes it racist. That is a most extraordinary argument to put in place. It is rather like saying that the National Party caucus is racist because only one in 27 of its members is Maori. I would not make that claim at all; it is an irrelevant kind of claim to make. It just happens that the National Party represents the rich and the powerful and therefore no doubt Maori are deeply under-represented within the National Party caucus. Equally Pakeha need to respect and acknowledge Maori property rights in the foreshore and seabed. Customary usage rights the great majority of which are fishing rights and are unaffected by this legislation because they are already codified—and what we need to do is get on with the implementation of that law—are a form of property rights. The territorial customary rights we refer to are a form of property rights. If the avenue to achieve those is being blocked off then there should be appropriate redress as the legislation provides. It needs to be even-handed in that respect. The legislation provides the avenues to explore that possibility. 
I have been particularly disappointed at the level of much of the debate from the Opposition throughout this process—in particular the failure of National to engage at a level that suggests some fitness for governing this multicultural country. The Leader of the Opposition told us he would fight this legislation with every fibre of his body. Well some people think he did not mean it; I think he did. I think he did fight this legislation with every fibre of his body up to this point! People realise that he was too busy today reading his two favourite sections of the  
New Zealand Herald 
: Situations Vacant and Help Wanted. But we heard the latest version of National’s position on this legislation late this morning; it changed as the people in the gallery changed. Last night when it comprised all Pakeha National’s position was that Maori were getting everything in this legislation and it was outrageous. This morning at a point when we had mainly Maori in the gallery National’s position started to become that the process should be allowed to be continued. Now that there is a sort of mix up in the gallery I am wondering just what the position of the National Party will be as we move into the third reading! 
But the final position this morning announced on behalf of National by Dr Worth was Crown ownership and nothing more—that is no recognition of customary rights not yet recognised and the abolition of inherent jurisdiction of the High Court without redress or replacement. That would be a constitutional outrage.