Parker David: Marine and Coastal Area (Takutai Moana) Bill — Second Reading 
Parker David: Marine and Coastal Area (Takutai Moana) Bill — Second Reading 
[Volume:670;Page:16978] 
Hon DAVID PARKER (Labour) 
: 
 Before speaking to the reasons why Labour believes the Marine and Coastal Area (Takutai Moana) Bill ought not to proceed I record that Labour intends to allow one of our speaking slots to be used by Hone Harawira. I emphasise this not because we agree with Hone Harawira’s views on the foreshore and seabed. We most plainly do not. I outlined some of my criticisms of Hone Harawira’s views on the foreshore and seabed in the first reading of the bill and I do not propose to restate those. Hone Harawira is a member of Parliament. He clearly has a strong interest in this issue and though it might be inconvenient for the Maori Party and National to hear from him we think this Parliament and this country should hear from him—not because we agree with him but because apart from anything else it absolutely emphasises the fact that this bill does not settle this vexed issue. This bill does not settle this vexed issue. 
Hon Steve Chadwick 
: I raise a point of order Mr Speaker. I am sorry to break in on my colleague but members on this side of the House when urged by the Speaker to give due consideration to Minister Tariana did just that. I would like that approach to be accorded to our speaker in return. 
The ASSISTANT SPEAKER (Eric Roy) 
: I will manage the situation. 
Hon DAVID PARKER 
: I will not recount the history of the existing Act. But I agree that this Parliament should restore the right of iwi and hapu to make claims to the court to recognise customary interests that were extinguished by the Act including customary marine titles. We do not resile from that position but there are a number of reasons why this bill does not achieve its stated purpose and why it should not proceed in its form. If the bill achieved its purpose and did it properly then we would not be here opposing it but it does not. 
All that is needed now is simple legislation that protects in a statutory way public rights of access. There is agreement on all sides of the House—the Maori Party Labour National and others—that that is now appropriate. The legislation should make it clear in statute that customary title interests cannot be onsold—that they are inalienable—and that does not seem to be an issue now. Then we can put all other issues back to the court. 
This Parliament cannot agree in a way that settles it—to the satisfaction of the various interests that appeared before the Maori Affairs Committee and to the satisfaction of the varied interests at large in society—on the threshold test to determine whether customary title exists. There is considerable disagreement from different parties about the appropriate threshold test. The Hon Tariana Turia said that in her own speech today and I acknowledge that she said that. There are differing views; this Parliament has had two cracks at it and we have not settled it. It is time to acknowledge that this is one of those issues that Parliament should not try to codify; it should be put back to the courts. 
We are not scared of that in Labour. Indeed we tried to explore that issue through the select committee process and I tried to explore it in my own dealings with the Attorney-General as to what legal advice the Crown had received about the effect of the change to the threshold test. Prior to the bill being introduced and after the bill was introduced I asked the Attorney-General to release the legal advice to Labour that the Crown had undoubtedly received about the change to the threshold test. He said he would consider it. It is within his discretion to release that advice and he is quite within his rights not to release that advice. I do not say that he is not within his rights to withhold that Crown legal advice. But in the absence of us having access to that Crown legal advice it was all the more important that the select committee got its own legal advice. Again throughout the select committee Labour members sought that advice from the Government because there is no sense in paying for a second lot of legal advice if it is already around. In the end the Government through the Attorney-General’s advice to officials refused to release that legal advice so the select committee said that we needed other legal advice—we needed legal advice from a legal expert so that we could advise Parliament of the effect of the change to the threshold test. But we were blocked by some members of the select committee from being able to offer that advice. The previous foreshore and seabed committee had had good detailed advice from Professor Paul McHugh and this Parliament benefited from transparent advice about the effect of the threshold test. 
But that is one of a number of procedural abuses that we suffered at the select committee. Not only did we have that but a 500-page departmental report came to us by email on a Friday afternoon. No one reads a 500-page report properly on a computer. 
Paul Quinn 
: I did. 
Hon DAVID PARKER 
: No the member did not. He read the start of it. The member did not read the whole report. It was patently clear that neither he nor anyone else— 
The ASSISTANT SPEAKER (Eric Roy) 
: I am sorry to interrupt the member. We had a plea earlier from this side of the House to have a bit of decorum because I understand that the speakers are not working very well. This is a debate where there is some passion. There is no problem with interjections as long as they are rare and reasonable but let us not have a yelling barrage. 
Hon DAVID PARKER 
: It is clear that no one had the time to read that report properly. On the Monday the hard copy was circulated to members—on the Monday. Most members were like me and got it on the Tuesday morning which was the same day that the committee was to conduct—at least in a pretend way—consideration of that 500-page report. After less than 2 hours of consideration of the 500-page report the committee forced through the deliberation. That was quite improper. I put a motion that we go through the report on a page-by-page basis which is the normal process but that motion was blocked by Government members supported by the Maori Party as was my motion on notice that we get legal advice about the effect of the changes to the threshold test and as was my motion on notice that we at least provide the House with a new version of the bill that showed the changes being proposed by the Government. But that too was blocked by the Government. Why? Because in the end this is an act of politics. It is an unpopular act of politics amongst many National supporters which is why National wants to ram this legislation through Parliament as quickly as it can in the hope the legislation is forgotten before the election. If anyone has a doubt of that they have only to reflect on the fact that the Government is doing this in the shadow of the earthquake when it has been asking the Opposition to put aside politics in the wider interest of a settled nation. 
Hon Member 
: What’s the rush? 
Hon DAVID PARKER 
: What is the rush? What is the first thing the Government is doing now that we have resumed after the earthquake? It is progressing this foreshore and seabed legislation. 
One of the other problems is that this bill allows agreements between Maori and Ministers. The Attorney-General has said that he will change that though and that some form of supervision by Parliament will be required. But I suggest to the House that that is a poor substitute. We are dealing here with the proper and fulsome—but no more than fulsome—recognition of Maori customary interests. The idea that Parliament will do that as assiduously having regard to all of the different private and public interests at large is in my opinion wrong. It is much better if that is done through the courts whose officials are the normal people to whom we go to protect our property rights who will see that proper recognition of rights and who will guard against the improper erosion of other people’s rights as a result of inappropriate recognition of rights that do not exist. 
The original legislation was flawed. Although it was possible to take a claim to the court for what is now being called a customary title—what was then called a territorial customary right—it was not possible for the courts to give a remedy. People were reliant on the grace and favour of a future Government to get a remedy and that was wrong. Labour has conceded that that was wrong which is why we have said that the existing legislation needs to be changed. But this substituted legislation is wrong too. This substitute goes the other way and says there can be agreements which are tantamount in my view to Treaty-type agreements when what is at large here is recognition of an existing property right that ought to be properly and fully recognised but no more than fully recognised. 
There are some other glaring mistakes in the bill. The effect of this bill—and we heard from Maori submitters as well as from non-Maori—is to undermine the full and final nature of the settlements in respect of commercial aquaculture. Under that settlement Maori rightly receive 20 percent of the marine areas allocated for aquaculture and they have the right to apply for more—for additional space over and above the 20 percent allocation. There is no problem with that; that was the agreed settlement. Indeed that settled the underlying injustice that was the cause of the Ngati Apa dispute in the first place. But this bill goes further and allows holders of customary marine title to use their right of veto in addition to those two rights I have talked about to effectively give them an improved negotiating position to get even more than their entitlement under the commercial aquaculture settlement. 
There are other problems. A severe criticism of the bill is that we are setting up an alternative planning regime. The Law Society and the Planning Institute both noticed that we are requiring regional councils to give effect to these plans. There are a lot of other problems with this bill; it will not settle them. At the first reading we called for the Maori Party to accept this as a full and final settlement. But it has not done that and we oppose the bill.