Clendon David: Marine and Coastal Area (Takutai Moana) Bill — First Reading 
Clendon David: Marine and Coastal Area (Takutai Moana) Bill — First Reading 
[Volume:666;Page:14006] 
DAVID CLENDON (Green) 
: 
 Tena koutou katoa. The Marine and Coastal Area (Takutai Moana) Bill depends upon one key assumption and that is that Maori rights are derived from the Crown and by extension from the Government of the day acting on the Crown’s behalf. The provisions of this bill make sense only if one accepts that primary assumption and as it is one that the Green Party does not and cannot accept we cannot offer any support for this bill. I will speak later in the debate and in following readings about some practical and specific concerns about the bill but it is necessary first to establish our core position and the reasons for it. 
The starting point for legislation of this sort must be that prior to 1840 Maori exercised sovereignty—were sovereign—in Aotearoa New Zealand. The leaders of iwi and hapu exercised legitimate authority and that was acknowledged by the Crown in the declaration of 1835 and by the acknowledgment a year earlier that the flag of the confederation gave vessels flying that flag rights of passage and commerce in international waters. 
The signing of the Treaty in 1840 saw Maori cede kawanatanga or governance to the Crown and in exchange the Crown guaranteed to Maori tino rangatiratanga or chieftainship which meant the right of Maori to control their lands villages and other treasures. The base of all negotiations must be that Maori held recognised sovereignty rights and continue to hold those rights unless the rights associated with that sovereignty have been legislated or alienated by some legal and defensible means. 
The Ngati Apa claim made by the Marlborough hapu that led us to the Foreshore and Seabed Act was essentially that they had ongoing rights in the foreshore and seabed and that those rights were being ignored. The iwi sought to take their claim to the court to be tested by the legal process. The courts indeed ruled that there was a case to answer and that led to one of the few instances in the 9 years of the Clark-led Labour Government when we saw what could be described as at least a knee-jerk response even a panic response to that situation. The choice was made to follow a legislative course and that choice was made to prevent a legal claim being taken to the court. A choice was made to deny Maori their day in court; a day that might prove or disprove Maori claims to continuing rights in the foreshore and seabed. 
The legislation we are debating today although it poses as a new approach effectively does the same thing. It starts from an unproven and untested assumption that the Crown has primary rights in this area and that any claim must be made from that basis. Any Maori claim to rights will be tested against an unreasonably high bar that is unlikely to be surmounted or to produce meaningful or positive results for Maori. An alternative base assumption is that Maori do indeed have existing sustaining rights and that the onus is on the Crown to disprove Maori rights in the foreshore and seabed. Such a core assumption puts a very different complexion on the debate. 
It is worth recalling in passing that Ngati Apa’s pursuit of legal remedy in 2003 was an endeavour to gain access to resources to build an economic base. There is constant criticism of Maori—criticism that we are overrepresented in all the negative social statistics. Yet so often when Maori seek to establish some economic activity and when there is a nascent expression of Maori entrepreneurship that is condemned as an example of allowing or requiring special privilege rather than being seen as an expression of fulfilling the provisions of the Treaty. 
The history of what in 2003-04 followed the decision by the Government of the day to circumvent proper legal process is well known and perhaps best remembered for the massive protests by Maori and non-Maori alike the scale of which had not been seen for decades and which led to the establishment of the Maori Party as a force in Parliament and in the wider community. 
The National Party has much to regret and it should perhaps even feel some shame at some of its pronouncements and actions since the debate began or began again in earnest in 2003. Some of that party’s actions and statements fuelled divisiveness and fear in the community in 2004 and in the following year exploited and even encouraged anti-Maori sentiment over the foreshore debate as a election tactic through the use of the “Iwi/Kiwi” billboards. 
The current Prime Minister said in the House that Maori lost nothing under Labour’s legislation because they never owned it in the first place. This Government nevertheless came into power promising among other things to repeal the Foreshore and Seabed Act and technically it has fulfilled that promise. However the legislation that is on offer to replace the Foreshore and Seabed Act differs from it in name only. The legislation has a new name but in essence it is the same as what it replaces; it just papers over the cracks. It marries together Labour’s Foreshore and Seabed Act and Labour’s negotiations with Ngati Porou into one bill with a bland name but all the injustices continue. 
The legislation remains manifestly unjust and treats Maori and Maori customary rights as inferior and second-class. Under this bill Maori remain second-class citizens. They do not have the same access to the courts to determine their property rights as holders of private title. Their customary title is determined not by tikanga but by the Government. The Government continues to own the foreshore or at least to assert ownership of the foreshore. The construct of common space or non-ownership deceives no one. There are two sets of Crown-derived orders accessible either through the court or through direct negotiation. The rights within those orders are determined by the Crown and they are less than the rights held by existing fee simple owners of the 12500 private titles in the foreshore and seabed. Large iwi with significant resources can lay claim to the mana moana held by small iwi thereby entrenching injustice. 
The bill extinguishes customary rights by operation of law without the consent of the customary owners because the rights can be obtained only through legislation. This bill replaces an unjust law with an equally unjust law. It uses different language and wears different clothes but in essence it is the same. It seeks to reduce Maori to the status of supplicants in their own country and it allows the exercise of customary title only by grace and favour of the Crown. A very different approach is required and we will continue to advocate for that approach based on common law natural justice and honouring of the commitments made by both sides in the Treaty relationship. Kia ora koutou.