Cullen Michael: Foreshore and Seabed Bill — First Reading 
Cullen Michael: Foreshore and Seabed Bill — First Reading 
[Volume:617;Page:12718] 
Hon Dr MICHAEL CULLEN (Deputy Prime Minister) 
: 
 I move  
That the Foreshore and Seabed Bill be now read a first time. 
 At the appropriate time I intend to move that the Foreshore and Seabed Bill be referred to the Fisheries and Other Sea-related Legislation Committee for consideration and that the committee have the authority to meet at any time while the House is sitting except during questions for oral answer during any evening on a day on which there has been a sitting of the House and on a Friday in a week in which there has been a sitting of the House despite Standing Orders 191 and 194(1)(b) and (c). 
The introduction of this bill represents a major step forward in resolving some complex legal uncertainties that resulted from a judgment last year by the Court of Appeal. Until last year the great majority of New Zealanders understood it to be a settled principle that the public foreshore and seabed was owned by the Crown on behalf of all New Zealanders with free access for recreational purposes under the appropriate safeguard of the Resource Management Act and other Acts of Parliament. So too most New Zealanders were aware of the special importance that parts of the public foreshore and seabed held for particular Maori as a result of a long history of continuous use of and connection to that part of the coast. I believe that most New Zealanders respected those customs and were happy to accommodate them and to modify their own use of the foreshore and seabed to allow that to happen. 
What changed last year was the Court of Appeal’s decision in June that the Maori Land Court could hear claims to and investigate the ownership of the foreshore and seabed. That decision raised some fundamental questions of constitutional administrative and property law. To allow claims regarding the public foreshore and seabed to be heard by the Maori Land Court could have serious repercussions. The Maori Land Court operates under the Te Ture Whenua Maori Act 1993. That Act was intended to apply to dry land only and is incapable of recognising a property right that stops short of fee simple title. The Act was not intended to apply to the foreshore and seabed. 
At this point I need to make clear to the House and indeed the country just what the bill means by foreshore and seabed—indeed what the law means. Firstly it is talking about the public foreshore and seabed not the very small parts held in private title—some of those held by Maori. Secondly it is not talking about the sand dunes or all the beach but only the area that is covered by the sea at high tide. Technically it is the marine area bounded on the landward side by the high-water line at mean high-water spring tides extending on the seaward side to the limit of the territorial sea. It also includes the air and water space above and the subsoil and bedrock below that. 
A central aspect of the bill concerns the legal recognition and protection of customary rights and that derives from the mainstream of our jurisprudence. Such rights are established by long practice and by a continuous relationship between a community and a specific area of foreshore and seabed since 1840. It is certainly not envisaged that on long stretches of the coast long-dormant practices may be resuscitated and granted status as customary rights. The ability to seek legal recognition and protection for customary rights based on uses or activities will be open to any group of New Zealanders. The Government is not aware of the existence of any customary rights that may meet the statutory tests in the bill other than Maori customary rights but nevertheless considers it appropriate to retain the capacity to explore that possibility in the courts. 
Customary rights once recognised will be exercised and protected in the context of the legislation that regulates activities on the foreshore and seabed—the Resource Management Act in particular. This bill includes several amendments to that Act. In particular a customary right holder will be able to continue to exercise the customary right without obtaining a resource consent under the Act. Moreover if another party seeks a resource consent for an activity that would have a significant adverse effect in the opinion of the regional council on the exercise of a customary right then the application would—unless the customary right holder consented—be declined. In seeking ways to acknowledge customary rights it is worth noting that not all solutions will lie in the law. General social norms of courtesy and respect for others also apply. 
I have no doubt the bill enables applications to be made to the High Court to investigate the full extent of the rights that might have been held in common law. The court would apply the common law and it would be able to look at the full set of rights and interests in the claimed area as it made an overall assessment of whether the cumulative bundle of rights in that area would have amounted to full territorial customary rights. I note that in the comments made by the Court of Appeal it thought that would be a relatively rare occurrence. If the court makes a positive finding it will refer the matter to the Crown. The Crown has to undertake discussions with the group in good faith on redress. Redress could take a number of forms as has been the case with regard to the negotiated settlement of well-founded historic treaty grievances. The Government is also prepared to talk to particular groups outside the framework of going to the court where it is satisfied that the court would have given a positive finding and indeed we are already in discussions with NgatiPorou on this matter. 
It is unfortunate that in these last few months the debate on these matters has threatened to be sidetracked by those taking extreme positions that either excite irrational fears or promote unrealistic expectations. As I have said a number of times the one thing that most people seemed to agree upon the day after the decision was that the Court of Appeal was wrong and both Maori and Pakeha in large numbers seemed to agree that the Court of Appeal had ruled that Maori owned the foreshore and seabed. The Court of Appeal of course ruled no such thing. 
In this context it is important to set out what the bill does not do and also what it does do. The bill does not grant Maori with a recognised ancestral connection a power of veto over the coastline of New Zealand. Instead it enables them to participate in regional planning for the public foreshore and seabed in the same manner in which Maori have been involved across the country since the enactment of the Resource Management Act in 1991. The bill does not deny the customary rights that New Zealanders have long exercised in particular areas of the public foreshore and seabed. Instead it provides a legal avenue for recognising and protecting those customary rights. The bill does not deny that in some cases those rights may have amounted to exclusive occupation and possession. Instead it requires that discussions take place with the Crown on redress where the High Court has found that that would have been the case. The bill does not impose new access obligations on the owners of coastal properties. Instead the bill establishes access rights in on over or across the public foreshore and seabed which is defined to exclude the very small limited areas in private title. The bill does not establish a new avenue for legal aid. That will continue to be unavailable for group proceedings before any court although the select committee may want to look further at that matter to ensure it is adequately covered. The bill does not affect property rights on land held privately above the foreshore—one-third of the land that is privately held above the foreshore is now in Maori hands. The bill does not affect in any way the jurisdiction of the Waitangi Tribunal or the process for resolving historic treaty claims or the outcome of that process in any particular case—for example that of the remaining Tainui claims that were not settled in the partial settlement of 1995. 
This bill delivers four-square on our promise to protect public access and clarify ownership. It gives effect to the four principles we set out at the beginning of this exercise: access regulation protection and certainty. It provides a clear and unified system for recognising and protecting rights in the foreshore and seabed. It creates a fair and reasonable framework for working through individual cases in the context of a settled concept of Crown ownership on behalf of all New Zealanders. The bill will not satisfy everyone. I doubt that it is possible given the contentious and complex nature of the issues involved to do so although I am sure that once the bill is properly understood many more people will be satisfied than are at present. But the bill does go a long way to addressing the concerns that have been raised. I note that National Party members did not go outside yesterday to explain to Maori that in the National Party’s view this bill gives everything to Maori. I heard that Mr Brownlee was hiding behind a pillar but I know no pillar as large as that. I hope that New Zealanders take the time to examine and discuss the bill and will suggest to the select committee any aspects of it that may be improved. I would hope for example that the select committee will also find some way to encompass the existence of the concept of the public domain in the way the Government intended it to be understood and in a form acceptable to both New Zealand First and United Future. 
It is important above all that we use the debate that this issue has provoked to bring us closer together as a nation rather than further apart. It will be very much up to the members of this House whether that is so or whether the debate is used as a vehicle for driving a further wedge between Maori and Pakeha.