Finlayson Christopher: Marine and Coastal Area (Takutai Moana) Bill — Second Reading 
Finlayson Christopher: Marine and Coastal Area (Takutai Moana) Bill — Second Reading 
[Volume:670;Page:16981] 
Hon CHRISTOPHER FINLAYSON (Attorney-General) 
: 
 As is always the case with the member David Parker that speech was a very useful contribution. It seems that this is the first time we have heard from a Labour member in this place an acknowledgment that the 2004 Foreshore and Seabed Act is discriminatory because it unilaterally extinguished the uninvestigated customary property rights of Maori and more important in the early 21st century denied a significant section of the population the right of access to the courts. So that was a very important admission on the part of that honourable member. It seems to me that one issue of principle—and I am looking forward to the debate in the Committee of the whole House because the member has raised some very important issues—is whether we should codify or simply send the matter back to the courts and enable the courts to work it out. I think that is a very important question and it is a very fair question; I thank the member for raising it. 
My preference is to go along with the submission of Dr Michael Cullen on behalf of Labour to the review panel that Mrs Turia mentioned which was set up in March 2009. I quote for the member’s benefit exactly what Dr Cullen said: “statutory codification of the common law tests should be retained subject to the panel making any suggestions for changes. To wait upon protracted legal arguments developing a New Zealand jurisprudence in this respect would defeat the purpose of what many are seeking: both certainty and equity.” And in a fair and objective manner I have taken the comments made by the Court of Appeal in the Ngati Apa decision looked at international developments—as I was urged to do by the UN special rapporteur James Anaya who put that in his report—particularly in reference to Canada and come up with tests that I believe create an enduring situation in this area. I use as an example something Dr Cullen also mentioned: “provision should be made for recognition of customary transfer for some period after 1840.” and that is exactly what we have picked up in order to recognise for example the situation with Ngati Porou ki Hauraki. 
Then the second major issue of principle that the honourable member David Parker has raised—and we can go into this in some detail in the Committee stage—concerns the issue of agreements. A Supplementary Order Paper that I will introduce will directly address the concern that many people have in good faith raised about agreements. It has been expressed sometimes somewhat pejoratively as “shoddy deals done with Maori and Ministers”. But I refer the honourable member to the Order Paper for today and particularly to item 46 which deals with the Nga Rohe Moana o Ngati Hapu o Ngati Porou Bill. For the benefit of Mr Horomia I say that bill gives effect to an agreement that was entered into between representatives of Mr Horomia’s iwi and Dr Cullen in late 2008 and in a spirit of great generosity that iwi has agreed that it could languish as it were at the bottom of the Order Paper until this review is completed. These are important matters of principle and I am certainly looking forward to debating these matters with the member David Parker for whom I have great respect in the course of the Committee stage. 
Today we are taking another step towards repealing the 2004 Act and replacing it with a non-discriminatory regime that recognises and protects the rights of all New Zealanders in the area between the high-water mark at mean high water spring tides and to the extent of the territorial sea. I say to Mr Boscawen that his question this afternoon was fundamentally flawed. He should not confuse the marine and coastal area with beaches as he always seems to do because they are two different things. This space will be known as the New Zealand common marine and coastal area. The bill acknowledges that it is an area in which all New Zealanders have interests. As the previous Government acknowledged—and I acknowledge that it was right to do so—there are private interests around the coastline. There are 12500 private titles. There is general land owned by Pakeha there is general land owned by Maori and there is Maori customary land. We will not interfere with those rights because contrary to what the Greens would suggest two wrongs do not make a right and one has to respect those private property interests. 
This bill recognises the importance to New Zealanders of the common marine and coastal area and no one can enter on it for the purposes set out in clause 27 and then charge for it—charging is not on. The interests of Maori are recognised in three ways. The bill recognises the longstanding connection of all iwi hapu and whanau to a specific part of the marine and coastal area and that part of the bill builds on what the previous Labour Government did in 2000 when it passed the Hauraki Gulf Marine Park Act. This bill builds on the concept of mana tuku iho. That was done particularly to try to incorporate some of the concerns of Mr Harawira who told a newspaper reporter that he had not read the bill. 
The bill allows iwi hapu and whanau to take part in statutory conservation processes within the area including the establishment of marine reserves and conservation areas and the management of stranded whales. What it does effectively is to formalise existing practice because the Department of Conservation has normally been very good at dealing with the right people on these issues. Secondly customary rights exercised since 1840 in accordance with tikanga Maori can be formally recognised and the future exercise of those rights can be protected. Finally as Mrs Turia said there will be the right to go to court to seek to establish customary title. 
The bill is the result of extensive consultation. That consultation started on the day that I became Attorney-General. The debate within Maoridom has gone on for much longer than that as Mrs Turia said. Essentially it has gone on since 2003. It started because of what happened at the top of the South Island where if there had been a different approach the issue would never have even gone to court and I acknowledge that. I refer to the progress of the reform—and Mrs Turia has set it out very carefully—from the time of setting up the review panel under Justice Durie and his team and then the extensive consultations with a wide variety of interests from local government to recreational commercial and customary interests to try to see whether we could obtain a good result. 
The bill was introduced in September 2010. It had 6 months of hearings in the Maori Affairs Committee. I note with interest that the Foreshore and Seabed Bill had 3 months before the select committee. The report on that bill came back to the House on 4 November 2004. The second reading the Committee stage and the third reading were on one sitting day: 16 November 2004. So no one can say that we have been doing what the previous Government did. 
Hon David Parker 
: At least they considered the submissions. 
Hon CHRISTOPHER FINLAYSON 
: The submissions have been taken into account. I say to the honourable member—because he raises an important point—that bona fide decent submissions were carefully considered and incorporated by me. 
I want to read into  
Hansard 
 several excerpts of material I have received which are representative of the views expressed by some people. I have been told that Maori should feel lucky not to have been wiped off the planet. One correspondent told me that because Maori want the right to go to court they are covetous and in breach of the Ten Commandments. The letter that best sums up much of the unfortunate tone of some of the correspondents—and some of the submissions—is this response: “Nowhere else in the world is a small section of the population encouraged to have ideas of ownership and possession above their station.” No member of this House would endorse that kind of garbage. It is totally inappropriate and I will not entertain that kind of submission. That is why I say to the honourable Mr Parker that it is a very dangerous proposition to determine the quality of submissions by the bulk of them. We have looked very carefully at the select committee— 
Hon David Parker 
: Two hours. 
Hon CHRISTOPHER FINLAYSON 
: Well as has been said he had ample opportunity. The report was available on the Friday. The Supplementary Order Paper will address a number of issues and should alleviate people’s concerns. 
I thank my colleagues in the Maori Party for taking part in this longer conversation since November 2008. This is a good-faith endeavour to create an enduring solution and it is very interesting that when one hears from the lead speaker for the Labour Party one realises what the issues are. Basically it boils down to the issue of agreements and to the issue of codification versus non-codification. I am in Dr Cullen’s camp: certainty and equity require codification. Let us have that principle debated in the Committee of the whole House and then we can move on.