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:17205] 
Hon DAVID PARKER (Labour) 
:  
I will just respond to Metiria Turei’s comments that I lacked an understanding as to why the Marine and Coastal Area (Takutai Moana) Bill is discriminatory in respect of protecting existing freehold title. The point I was making is that those areas that are in freehold title would not qualify as areas where there are unextinguished customary rights and therefore the issue does not arise. 
I do agree with the second point that Metiria Turei made. That is that if there are extant customary title interests in the foreshore and seabed and they are subsequently overridden in favour of some public project or some private project like mining then there ought to be fair compensation for the loss of the right that has been found to exist. That is one of the issues that we raised at the Maori Affairs Committee and on which the select committee because it ran such a poor process did not even report to the House. That issue was of concern to the Green Party Labour the Maori Party and others including ACT when they saw that effectively we could be saying there is an existing customary interest in the foreshore and seabed area that is properly recognised under this legislation and that it could be taken away at some future time and that the compensation if anything for taking away that right would be at the grace and favour of a future Government rather than a right at law as exists under the Public Works Act where a public work takes away some other property rights. That is an example of where I do agree with the Green Party that it is bad law. We have an amendment on the floor of the House to remove those provisions so that it is not of that effect. 
I raise another issue that relates to these Part 1 definitions. Part 1 sets out the outline of the Act and states amongst other things that we are to codify what is or is not an extant customary interest that should be recognised in a customary marine title. One of the problems that we get ourselves into here is that we have taken it upon ourselves in Parliament to try to codify things that the courts have never had the chance to properly interpret and say what it is that the common law provides for what is the range of rights that may be existing and the range of rights that may have used to exist—for example the right to mine for oil and gas which was clearly abrogated by the nationalisation of that resource back in 1948 I think although the Attorney-General might be able to correct me as to the date— 
Hon Shane Jones 
: 1937. 
Hon DAVID PARKER 
: I thank Mr Jones. It was nationalised in the Petroleum Act in 1937 so there is no longer an extant customary interest that would be able to be part of a customary title. 
The Government’s attempt to codify these provisions in Part 1 fails for a number of reasons. One is that National in Government and the Maori Party said that they were setting out to settle this issue yet we have the Maori Party through its co-leaders the Hon Tariana Turia and the Hon Pita Sharples and its whip Te Ururoa Flavell all saying that it is not accepted by them as settling the issue; it is just a first step along the way towards achieving a wider ambition. That shows that the primary ambition of the Government to settle this issue through the codification of the appropriate threshold test for the establishment of a customary title is not achieved and that is putting aside—and I do not mean to put aside as irrelevant—Hone Harawira’s concerns. His concerns are also relevant in so far as they show that this legislation does not settle the underlying dispute. 
What are some of the problems as far as ACT is concerned? ACT quite rightly makes the point of asking why it is necessarily correct that having a right of fishing or a right of navigation does not mean that one cannot get a customary title. Someone might want to put that argument in court and that person might be right because these issues have not been determined either in a New Zealand jurisdiction or in many overseas jurisdictions. ACT is right in saying that that argument might be relevant and that it ought to be listened to by the court. Conversely the arguments that some Maori submitters made that the requirement to prove exclusive use and control is too high a threshold test might be right too but they do not have the opportunity to claim that in court now. They are being stripped of the right to go to court and make those arguments because the codification of those issues puts them beyond the jurisdiction of the court. The court has to apply the codified tests rather than determine what the proper tests are for the establishment of a customary marine title. 
That I think is at the nub of where Labour got to on this. We freely acknowledge that the existing Foreshore and Seabed Act is wrong in that it does not allow people to get a court remedy but we also went further and said that Parliament has now had two cracks at codifying this and has not done it in a way that settles the issue for New Zealand because there is no compromise available that the parties from the different sides of the debate can accept. Therefore the whole thing should be referred back to the courts preserving public rights of fishing and access and the inalienability of customary interests and that is really all the legislation needs to do. That is why we have put forward amendments that amend the various provisions in this part to that effect. 
I also say in respect of the change to the threshold test that with the absence of legal advice as to the effect of the change of the test I remain ignorant as to what is the true effect. I will give an example of where this was being spun by the Government to different interest groups to different effect at the select committee. Te Ururoa Flavell was quite rightly concerned that land confiscations that were improper during the period post-colonisation should not mean that a claimant is disentitled from claiming a customary interest in adjacent foreshore and seabed in his view. He thought that if a claimant went to court and argued that then he or she might be able to convince the court that those customary interests are extant. 
The definition in this bill is changed from the original Act in that the requirement for continuous ownership of contiguous land has been removed. That is no longer a prerequisite to the establishment of a customary interest in adjacent foreshore and seabed. That was interpreted by National members who were trying to placate the Maori Party as saying that the very fact that claimants have had their land confiscated does not disentitle them from establishing a customary title but what those members did not say and what they never explored was what the effect was of the provision that one has to prove—I think the words are and the Minister in the chair the Attorney-General can correct me if I am wrong—continuous and exclusive occupation and control of the area of foreshore and seabed itself. 
The question then arises that if one does not control the adjacent land and therefore people have been free to wander down to the foreshore and seabed then how can a claimant show that they have exclusive control of the adjacent area of foreshore and seabed? None of these issues have been explored properly at the select committee because we did not have legal advice and because the National Government was determined to pull the wool over the eyes of the Maori Party— 
Paul Quinn 
: We explored it David. 
Hon DAVID PARKER 
: No those members did not explore that. They asked the question but then they blocked us from getting any legal advice so as to get the answer. That is not exploring it; that is very very poor process. So the poor old Maori Party is left ignorant of the fact that although it is true that the fact that adjacent land was confiscated is not an absolute bar to proving a foreshore and seabed interest in the adjacent foreshore and seabed it may well be a de facto bar given that one will not be able to show exclusive control of the adjacent area of foreshore. I know that because the Attorney-General has as much as confirmed that to me in discussions that I have had with him. But I have not been able to explore it in a way that gives me the benefit of either Crown legal advice or legal advice to the select committee because we were blocked from obtaining it. 
So we can see why at the end of this process there will be a sense of grievance on the part of Maoridom who will feel that they have been done over. I do not necessarily agree that their view that the common law test is a lot more generous than that is right but I can see why they will feel that they have had the effect of this legislation misrepresented to them and therefore they will have an ongoing sense of grievance and this issue will not be settled. That is why this bill fails the test that the Prime Minister laid out for it right at the start. He said the Government would not proceed with the bill if it did not settle the issue and it did not have broad support. That is but one instance as to why that is not the case. 
The consideration in the departmental report of this Part 1 of the bill is some 50 pages long.