Garrett David: Marine and Coastal Area (Takutai Moana) Bill — First Reading 
Garrett David: Marine and Coastal Area (Takutai Moana) Bill — First Reading 
[Volume:666;Page:14008] 
DAVID GARRETT (ACT) 
: 
 ACT stands opposed to the Marine and Coastal Area (Takutai Moana) Bill just as we opposed the Foreshore and Seabed Bill in 2004. In the case of the Foreshore and Seabed Bill which is now the existing Act we were outraged at the decision to treat Maori as second-class citizens by denying them the chance to have their property rights tested in court. That legislation did not take the entire foreshore and seabed from Maori as some people claim including those—or at least some of those—in the Maori Party but it did deny Maori the right to go to court and that was travesty enough. But we do not resolve one injustice by creating another and this bill tries to do precisely that. National is overreacting just as Labour did in 2004. 
The solution in our view is deceptively simple and it is to restore the situation that existed before the 2004 Act was passed. The decision of the Court of Appeal in the Ngati Apa case held that iwi had the right to go to the Maori Land Court to seek freehold title of limited areas of the foreshore and seabed. It also stated—and this is important—that the chances of gaining such title were not very high. The exact quote stated: “… any customary property in the areas vested seems unlikely to survive.” and that I believe is where the Maori Party and certain iwi leaders have an objection to just repealing the current law without replacing it. 
The odds of iwi gaining more than a few tracts of foreshore and seabed without legislative intervention would be slim. Thus the Foreshore and Seabed Act was not the largest land-grab in New Zealand history as some have hysterically proclaimed. That sadly happened in the 1860s after the so-called Maori Wars and the illegal confiscations of land that followed. The Attorney-General has said publicly that up to 10 percent or 2000 kilometres of coastline could end up in iwi hands. The only reason we are likely to lose 2000 kilometres of coastline and the resources that go with it to a few elite Maori is that Mr Finlayson has made that decision in conjunction with those who stand to profit. The biggest problem with the bill is letting iwi negotiate with the Government directly which will result in purely political outcomes and create new injustices. Why as Mr Finlayson has said go through the court process when the Government has already said that he will provide a better outcome? 
If an iwi goes to the High Court and is awarded customary title over areas of the foreshore and seabed ACT is completely comfortable with that decision. I will say that again. If an iwi was to go to the High Court and be awarded customary title over an area of the foreshore and seabed we are completely comfortable with that. But if behind closed doors over in the Beehive the Government gives away an area of foreshore and seabed then no one with an interest in democracy should welcome that. 
As I have said before if National can gain a political advantage from giving away large tracts of foreshore and seabed it will do it. Its track record—indeed this very bill—is proof that politics comes before what is right. Well the bad news for the National Government is that this bill might buy it a few months of peace from the Maori Party but it is in for no end of grief. I put on record that Mrs Turia Dr Sharples and certainly Mr Harawira responded that they agreed with those on the other side who said that this will be an endless revisiting process and not a full and final settlement or a full and final legislative resolution at all. 
Last week I asked the Attorney-General where in the legislation before this House it states that public access will be free. He helpfully pointed to clauses 27 60 63 and 64. Well that worked as a fob off in the House because I did not have the legislation with me but when I read those clauses carefully I did not see the word “free” or the phrase “charging for public access is prohibited” in any of those clauses. Clause 27 for instance states that any individual has the right to enter stay on and leave what is now called the common marine and coastal area. But I ponder why it is so hard to insert the simple words “for free” in there. I ask who or what is stopping Mr Finlayson from doing so. 
I also asked Mr Finlayson whether it would be an offence to charge for public access. It took three points of order and the intervention of Mr Speaker before he admitted “it could be an offence. It depends on the circumstances …”. So all we have to go on is the constantly changing word of the Attorney-General. Although this bill gives him great power in its current form he cannot necessarily stop iwi from charging for access and he should say so. It is a bit rich of Mrs Turia and others to say that that will not happen. It is happening now and Mrs Turia knows it. 
At public meetings I held recently in Northland— 
Hon Parekura Horomia 
: Give an example. 
DAVID GARRETT 
: —I will give some—I did not have to “search high and low” for people who had been denied access as Mrs Turia has claimed. They came to me. One man was ordered to “get down to the Pakeha end of the beach”. A newly married couple were told by iwi members to pay in exchange for allowing the picturesque backdrop of a pretty bay to be used for their wedding photos. The Mayor of the Far North and his wife told me that they have been told to get off the beach but in rather more direct language a number of times. It is happening now on beaches that have no customary title. What makes anyone think that that will stop when this bill is passed? 
There is no doubt that those same leaders who made a meal out of the supposedly meaningless phrase in the State-Owned Enterprises Amendment Act 1987 are looking at the word “tikanga” and seeing big dollar signs. That word is in this bill and its explanatory note 26 times and is defined—I use that word loosely—as “Maori customary values and practices”. That extremely vague term gives iwi open licence to ignore the Resource Management Act exclude people from customary title areas and have the sole right to make millions possibly billions out of any resources on that land. If Maori profit from minerals on land that is awarded to them by the High Court then that is no problem. I will say that again. If Maori profit from minerals whether on land or on sea awarded to them by the High Court then that is no problem. But that is not what will happen. Instead grubby deals will be done behind closed doors up in the Beehive. This bill is deliberately poorly drafted and loopholes failing to guarantee free access to beaches will be exploited unless closed. Nothing is surer than that. 
I urge the public to put in their submissions as soon as possible and to ask that the phrase “charging the public for access is prohibited” is inserted in the law just as it was quite deliberately in section 40—a kind of section that lawyers call a belt and braces section—of the Foreshore and Seabed Act 2004. Under the rules of statutory interpretation a judge will eventually say that an omission of an equivalent section in this legislation is not an accident. 
We should also be seeking a clear definition of “tikanga”. Mr Finlayson told us today in answer to oral questions that the meaning may vary from iwi to iwi and hapu to hapu. Ultimately of course the power to award customary title should be taken away from the Government and given solely to the judiciary in the form of the High Court where it belongs. 
In repealing and replacing one injustice we are on the verge of creating many many more. That is why the ACT Party so strongly opposes this bill on behalf of the many thousands of New Zealanders who share our concerns. Thank you.