Parker David: Marine and Coastal Area (Takutai Moana) Bill — In Committee Speaker Recalled In Committee 
Parker David: Marine and Coastal Area (Takutai Moana) Bill — In Committee Speaker Recalled In Committee 
[Volume:670;Page:17238] 
Hon DAVID PARKER (Labour) 
: 
 I begin by referring to clause 11 of the Marine and Coastal Area (Takutai Moana) Bill which is one of the issues that the Attorney-General Mr Finlayson referred to in his opening remarks on Part 2. He talked with some pride about the common marine and coastal area being accorded a special status which clause 11 achieves. In subclause (2) it states “Neither the Crown or any other person owns or is capable of owning the common marine and coastal area as in existence from time to time after the commencement of this Part.” This is really a discussion about words because what really determines what this means is the bundle of rights different people have in respect of that common marine and coastal area. If that does not change then whether it is called a Crown area or a space that is not capable of being owned by anyone does not matter—they are just words. 
In reality the Crown still regulates what occurs in respect of this area. So if there are environmental effects then those have to be assessed in terms of the legislation that controls development in those areas. In reality this legislation as does the current legislation protects people’s rights of free access over those areas so that does not change as a consequence of this legislation. All people have fishing rights in respect of these common marine and coastal areas so that does not change. All people have navigation rights so that does not change. No people have private rights to mine for oil and gas because those were nationalised back in 1937 so that does not change. 
As my colleague Shane Jones said in an earlier submission to the Committee there are very little changes as a consequence of this change of terminology from the area being vested in the Crown as the putative owner effectively holding it on behalf of the people of New Zealand subject to the different rights that different groups of people have. This change from the area being Crown land to being held by the Crown on behalf of New Zealand is subject to different rights in respect of different groups including the rights of Maori to have their customary interest recognised. This change from the Crown holding it to no one owning it is an illusory change—it makes no difference. 
Hon Member 
: Fiction. 
Hon DAVID PARKER 
: It is a legal fiction. It makes no difference in practice so it should be seen for that. It is not objectionable except to the extent that it is a pretence of a change when it is not a change and that is where our objection arises to this. For this to be accepted by the Maori Party as settling its grievance seems to me to be ridiculous because this is but a fiction. So I invite the Minister in the chair the Hon Chris Finlayson to acknowledge that really what one calls this area is less relevant than the bundle of rights that everyone has in respect of the area and to acknowledge that the change from this being held in the Crown’s name on behalf of New Zealanders subject to all of the different bundles of rights and responsibilities that I have earlier described makes no difference in practice. 
I want to raise another issue which is the access clause clause 27 and the clause that is being amended by the Minister. I note again that there are a large number of amendments in the Minister’s Supplementary Order Paper 207 that infringe the warning given by the New Zealand Law Society that these things should have been made public so that there was an opportunity for public scrutiny sufficiently in advance so people could raise any concerns they had. That would normally have been done following the Maori Affairs Committee report incorporating the amendments recommended by the Ministry of Justice in its 500-page departmental report but of course because that process was so improperly truncated by Government members we did not have the ability to do that. We did not have the ability to have that advice from the select committee to this House at Parliament or to the Committee of the whole House and we are reliant therefore on the Supplementary Order Paper which raises these new issues. 
In respect of the access clause I prefer the new wording “without charge” of the Minister to that proposed by Hilary Calvert in Supplementary Order Paper 210 for a number of reasons. Firstly I think it is easier to read but secondly I think that Hilary Calvert’s amendment goes too far. I would like to go into that in some detail. Hilary Calvert’s amendment proposes to add clause 27(5): “To avoid doubt neither a customary marine title group nor an applicant group is entitled to charge or collect fees or other form of payment from any person for body for the use”—I emphasise the word “use”—“or occupation of any part of the common marine and coastal area.” The Minister’s amendment makes it clear that one cannot be charged for access but Hilary Calvert’s amendment goes a lot further and says that one cannot charge for any use. That of course makes a nonsense of the ACT Party’s argument that if there are property rights to be recognised then those property rights are for the holder of those rights to use. If someone else were to come along and use the right that was the subject of a customary marine title without payment of charge to the person whose right that was it would make a mockery of the whole thing. 
I would like the ACT Party to take a call and explain how that would be right. I understand that its property rights logic is being applied to its opposition to the bill but it says that people who have an extant customary interest in the foreshore and seabed should have it recognised and should be able to utilise it for their personal benefit as anyone else can utilise their property right. I find it absolutely irreconcilable that the ACT Party could take that position and then say that anyone can use it for free. I raise the issue of a right to extract a mineral that has not been nationalised. For example there is some suggestion that there are areas of the foreshore and seabed where there may be customary title interests under seabed minerals be it ironsands or other minerals. By saying that I am not saying that the Taranaki iwi are correct to say that they have extant rights but somewhere in New Zealand there will be extant rights to minerals and it would be a nonsense if someone else could come along and have the right to use that part of the common marine and coastal area for his or her private benefit to the exclusion of the person who owned it. I think that the proposed subclause (5) goes too far on the part of the ACT Party. I agree with the Minister’s amendment to clause 27. I think that is fair to settle down concerns be they as he put it with good intent or mala fides but I do not agree with the amendment proposed in Supplementary Order Paper 210 by the ACT Party member Hilary Calvert for the reason that I have outlined. 
So in respect of that issue Labour will be voting against the ACT Party amendment. If we had the opportunity to vote separately in respect of that particular amendment from the Minister we would vote for it. But it is probably going to be put as is the Minister’s right along with all of the Minister’s other amendments many of which we disagree with. So we will be forced to vote against that as a part of a wider motion. But I note for the record that we approve of the change to that particular wording in that clause relating to access that is promoted by the Minister but oppose the change proposed by Hilary Calvert. 
There are many many other changes made to Part 2. The first of them is referred to in the Supplementary Order Paper 207 and records that in clause 11(2) we are omitting the word “Part” and changing it to “Act”. That changes the meaning so that the provision comes into effect from the commencement of this Act rather than from the commencement of this Part and that seems OK as do the changes to subclauses (3) and (4). In terms of subclause (5) I am not sure what the effect of this is. There is a deletion of clause 11(5) and a substitution of very similar wording. One of the difficulties we have when a Supplementary Order Paper that runs to 73 pages is produced as close to the next readings of this bill as this one has been is that it is difficult for us to get our heads around each and every one of these little changes. So I ask the Minister to explain what the difference is in effect for clause 11(5) which seems to be substantially reproduced in the Supplementary Order Paper but seems to differ in the addition of a paragraph (f) which is not in the original version of the bill that came to the select committee.