Tariana Turia said that the Māori Party was right to restore access to the courts. The ACT Party agrees with her, and always has, and the members of the Māori Party know that. Tariana Turia also said that the ACT Party used the lodging of questions to members this afternoon to try to delay this bill. Tariana was right; we did do that. The reason we did that is we oppose this bill and we think this bill is wrong. We think this bill is wrong for the reasons I will summarise very shortly. However, Tariana Turia said that the ACT Party had used this legislation to denigrate tangata whenua. With respect, that is where I disagree with her, because we have not deliberately gone out of our way to do that. We have fought for the rights of all New Zealanders and Māori New Zealanders to have the right to their day in court and to have the right to access. But we have not gone out of our way to denigrate tangata whenua.

Tariana Turia said that the ACT Party had used this bill to try to create divisions. I also totally reject that. We have not used this bill to try to create division. In actual fact, we believe this bill will create division, and that is one of the reasons we so strongly oppose it. Why do I say that? A number of rights created here will be of benefit only to those who gain customary title. I will come back to the test for customary title, but I take this opportunity to say to National members who will be voting for this bill that rights are conferred on customary title holders that are over and above the rights that other freehold property owners get in New Zealand, whether they be Māori or non-Māori.

Te Ururoa Flavell: Shocking!

Hon JOHN BOSCAWEN: Well, the ACT Party thinks that is shocking, because we believe strongly in having one law for all.

I will give one example of that: a planning right. If iwi or hapū gain customary title to an area of the common marine and coastal area—and Mr Finlayson has acknowledged that could be up to 10 percent of our coast, but, who knows, as it could be a lot more than 10 percent; it could be a huge amount more and we will know only in time—they have a planning right and they can decide what happens on that piece of land or marine and coastal area. That benefit is not available to any other New Zealander. I will repeat that: it is not available to any other New Zealander. No New Zealanders who own a piece of freehold land can decide what will happen on that land. No New Zealanders can go along to the local council and say what they want to have happen on that land and have the council do as the landowner says. That is one of the benefits conferred on customary title holders.

If we look to the genesis of the situation here today, we know that the judges in the Ngāti Apa decision in 2003 said that iwi and hapū should have the right to go to court to state their claim. That is a right that the ACT Party has stood for consistently throughout the entire time since. However, what was the Labour Government’s response to that decision? The Labour Government’s response was to pass the Foreshore and Seabed Act. It announced within a matter of hours of that Court of Appeal decision that it would substantially reduce the rights of iwi and hapū to go to court. Yes, iwi and hapū have the ability to go to court. There are rights there, but they were substantially lessened, and the benefits that they would derive from going to court were substantially reduced. The ACT Party opposed that.

What has the National Government’s response been? It has been not just to repeal that Act to undo that injustice but also to impose another injustice. Why do I say that? I say that because this bill sets down a number of tests. It codifies the tests, as the Attorney-General tells us, and it does not leave the matter to the courts. There may well be some iwi and hapū who feel that they have had those rights taken away from them. The Hon Bill English talked this afternoon about ongoing resentment. Well, the only way to avoid ongoing resentment and a sense of injustice is to allow iwi and hapū to go to court—to do what they asked to do—and let the judges rule on that matter. As Tariana Turia said earlier this afternoon, there was far more at stake than simply repealing the 2004 Act.

The National Government has responded exactly as the previous Labour Government did. It looked to put legislation in place, and there may well be iwi and hapū who are denied the right to go to court because of the tests laid down in this document. Equally, there is the real chance that customary title may be transferred over land and provide benefits to a small group of New Zealanders at the expense of all other New Zealanders. I do not necessarily mean there will be a difference between Māori and non-Māori; I mean that certain selected iwi may benefit at the expense of other iwi and other non-Māori.

It always fascinates me to listen to Metiria Turei talk about the 12,500 private titles. I have always found it fascinating that of those 12,500 titles that Metiria Turei rails against, 3,000 are actually in the name of Māori. What are the benefits that go with the granting of customary titles? We have potentially billions and billions of dollars of mineral wealth. We know that off the Waikato and Taranaki coasts there are literally billions and billions of dollars worth of ironsands. Why are we concerned? It is because the National Government has been happy to tell its own MPs and the public that the test for customary title is a very, very high test. The Government has said to the public of New Zealand that to be able to prove customary title, they need to show continuous and exclusive use and occupation of an area since 1840. The Government has said to New Zealanders that that is a very high test. Well, it is a high test, but it is not actually the test. In 1840 the limits of our territorial waters were simply 3 miles. This bill enshrines in legislation the fact that it is assumed that iwi and hapū have customary titles over the foreshore and seabed, out to 12 miles, not 3 miles, but 12 miles. That change to our territorial limits was legislated for only in 1977.

When David Parker spoke in the Committee stage, he said that a vote for National was a vote for the Māori Party, and a vote for the Māori Party was a vote for National. I daresay that that was simply a pitch to the Māori voters who have previously supported the Māori Party to throw their political allegiance behind Labour. ACT has not sought to try to gain political support on this issue; we have sought to educate New Zealanders and to explain to them the provisions of the bill. I ask the members of the Māori Party whether they honestly believe that New Zealanders have been told the truth by the National Government. If they honestly put their hand on their hearts, I do not think they can answer yes to that question. The reason I say that is a lot has been said about access to the common marine and coastal area. Boaties will get a surprise when they look at clause 28, because they will find that when they sail into a bay that has been granted customary title they will be able to anchor there only temporarily. What is “temporarily”? Can they anchor their boat for 5 hours, or for 5 days? Who knows? Yet the Attorney-General will stand up and say that this provision provides certainty.

There has been a racist element to this debate. We have received emails from members of the public, and I have gone on record, and the media have acknowledged this, as saying that ACT’s position is different from the Coastal Coalition, and it has always been different. ACT believes that iwi and hapū should have the right to go to court. I have stressed that point at every public meeting that I have held over the last 6 months—at every single public meeting. ACT will be voting against this bill. We think it is a tragedy for iwi and for hapū, and we think it is a tragedy for all New Zealanders. The feelings of resentment that the Deputy Prime Minister spoke about this afternoon will not be resolved by this. Thank you.

Part 4 Administrative and miscellaneous matters

How interesting that we have just heard Mr Parekura Horomia talking about the virtues of one law for all, and Tau Henare asking what is wrong with that. One would believe, with that interjection, that Tau Henare actually believes we should have one law for all, which highlights that Tau Henare does not understand the Marine and Coastal Area (Takutai Moana) Bill. He does not understand the detailed provisions in this bill. One of the clauses we are debating is clause 93 in Part 4, and that clause restricts iwi and hapū—Hon Tau Henare: Where’s Hilary?

Hon JOHN BOSCAWEN: —I say to Mr Henare—to bringing claims within 6 years. Why should iwi and hapū have the ability to bring claims restricted? That is just one example of why we do not have one law for all, and it is just one example of a provision that is bad for iwi and hapū. I can point to a number of provisions that give iwi and hapū benefits that other New Zealanders do not have, but, equally, clause 93 takes away from the rights of iwi and hapū.

In this debate—and I am hoping to make a number of contributions on Part 4—I want to focus specifically on clauses 93 and 105. My colleague Hilary Calvert has a number of amendments, and a number of them are very substantial and make substantial improvements to this bill. But before detailing those amendments, and before coming back to clauses 93 and 105, I need to briefly comment on the interaction and the comments from Hone Harawira.

Hone Harawira has used this debate as a continued opportunity to take shots at the Māori Party, and I need to repeat that this bill is a victory for the Māori Party. I think we can see that in the fact that 200 people are marching towards Wellington in a hīkoi, whereas 7 years ago there were 40,000. There may be a perception that Māori do not support the Māori Party on this bill, but I have no doubt that over the next 7 months, as the Māori Party gets out into the community and explains the massive benefits—notwithstanding that 6-year restriction I have just referred to—it will build on this support, and the Māori Party will be returned to Parliament.

One has to look no further than the article published in the New Zealand Herald last Wednesday where Tariana Turia and Pita Sharples made a point of all the benefits they had achieved, and they concluded: “Make no mistake—the Maori Party persuaded the National Party to support this bill. We will work with any party that supports the kaupapa of our people. … For a small party, we have achieved amazing results in a short time.”

Hon Parekura Horomia: I raise a point of order, Mr Chairperson. One thing that is important is to ensure that our language is pronounced well. The member said “kaukapakapa”. It is actually “ko-papa”; “ko” as in “toe”; “pa” as in “pa”—kaupapa, not kaukapakapa.

The CHAIRPERSON (Hon Rick Barker): I thank the member. I am sure we can all improve our pronunciation of the Māori language, myself included. But I say to the member, with the deepest respect, that in the strict rulings of this Chamber, the kawa of this Chamber, that is not a point of order. But it was helpful.

Hon JOHN BOSCAWEN: What the ACT Party, and I have no doubt the Labour Party, have tried to have is a debate based on ideas and arguments. It has been very, very sad to see this debate cast as a racist debate in the media. I found it particularly sad when just half an hour ago, Tariana Turia, alongside me and Rahui Katene, made the comment, when responding to David Parker’s submissions: “No, because you’re a bunch of racists.” I heard those words myself just a few feet from my seat, and I found it very sad that those comments were made by someone who has achieved so much for Māori.

I will turn now to clause 105, which states that to bring a claim for customary title it is not actually necessary for iwi and hapū to prove that claim. In actual fact, it reverses the burden of proof. It says that those customary interests are deemed to exist unless proven otherwise. In other words, Māori, iwi, and hāpu have a customary interest in the foreshore and seabed, now renamed the common marine and coastal area, unless proved otherwise. We heard from the Attorney-General, who said that there was nothing wrong with that and that was no big deal because that is the situation in Canadian and Australian common law, and we are doing nothing more than what has already happened. The Attorney-General either is trying to mislead New Zealanders or he does not understand his own bill; I suspect that he understands his own bill.

Clause 105 is very important. In 1840 Māori customary interests, iwi and hāpu customary interests, went out to the 3-mile limit. They went out to the limit of the territorial seas. This bill enshrines in legislation a customary interest that goes beyond that 3-mile limit out to 12 miles. It creates a customary interest whereby it is then on the Crown to prove that the customary interest does not exist. If one doubts the importance of the massive win that that clause gives and the massive transfer of wealth it will create from all New Zealanders to just some New Zealanders, one needs only to look at the speech Tariana Turia gave in this House in her second reading speech.

If we look at Tariana’s comments in Hansard, we see thatshe says: “There is also a very interesting provision, tucked away in clause 105, the burden of proof clause, which states explicitly that ‘it is presumed, in the absence of proof to the contrary, that customary interest has not been extinguished. … In other words it will be up to the Crown to prove that any interest had been extinguished—rather than placing the onus of proof on the whānau, hāpu and iwi.” So this bill creates a customary interest: the ability of iwi or hāpu to claim a customary title over land to the 12-mile limit, the territorial seas, which is a limit that was only just extended less than 40 years ago.

I come to clause 93. The ACT Party campaigned very strongly for the tightening up of this provision. We have said to New Zealanders that this provision, as it came to Parliament, originally provided for an Order in Council to give effect to an agreement on customary title. It did not have to come back before Parliament and be scrutinised by public scrutiny. Now the Government has moved on that; it has made this change. One might be inclined to ask why. One might be inclined to ask about the quality of the scrutiny that Parliament would give, because we saw that the Māori Affairs Committee scrutiny of this bill was very poor. The 520-page officials’ report and its recommendations were dismissed in an hour and a half. But nevertheless we have that scrutiny. So that is at least something to be grateful for. That is important, because the provisions of this bill are very, very wide ranging.

The Attorney-General has focused on the issue of free access. I wonder how many boaties are aware of the provisions of clause 28, which will be incorporated into those agreements to be scrutinised by Parliament. For example, boaties are allowed “to temporarily anchor, moor, and ground” a boat and are allowed to remain in a place “for a convenient time”. What is a convenient time for boaties? What does temporarily anchoring their boat mean? Does that mean they can anchor their boat for 1 hour, 3 hours, or a day? At what stage do they overextend their welcome and a customary title can charge them for mooring their boat? We do not know; the courts do not know. The courts will have to find out, and the Attorney-General has the audacity to come into this Chamber and create uncertainty. This bill does not create certainty.

I move now to some of the amendments that the ACT Party is putting forward, and there are several—

Hon Tau Henare: Several hundred!

Hon JOHN BOSCAWEN: There have been several hundred in total, I say to Mr Henare, and what a disgrace that we were in this Chamber last night after midnight voting on this bill and voting on the Attorney-General’s amendments. It is interesting that we are voting on the Attorney-General’s amendments, because if he had followed proper parliamentary process, we would have had those amendments in the select committee—the very select committee Mr Henare chairs, and like an animal all he can do is sit there and bark at me. He sits there and barks. If he had chaired the select committee properly and shown some leadership, we would not have been sitting in the Chamber after midnight to vote on the Attorney-General’s amendments. They would have been properly included in the report-back of the select committee.

I will move to the first of the major amendments that Hilary Calvert is moving. It is an amendment to clause 118(1)

Part 3 Customary interests

I will just comment on what Maryan Street had to say. She summarised part of the basis of the ACT Party’s objection to the Marine and Coastal Area (Takutai Moana) Bill. We believe that iwi and hapū should have access to courts. We do not believe that the law should be codified in the way that it has been, which denies the right of iwi and hapū to go to court and to fight for their common law rights.This is a debate on Part 3 of the bill. I will focus in particular on the clauses relating to customary title, which have been identified by the Hon Christopher Finlayson: clauses 60, 61, and 64. I will refer also to mana tuku iho.

Before I do that I feel as though I need to respond to some of the comments that Hone Harawira made earlier this afternoon. I had hoped to make this contribution during the debate on the last part, before the vote was taken, but I was prevented from doing that. But the points I will make are still just as relevant. The ACT Party totally agrees with Hone Harawira that this bill needs to be opposed, and opposed at every step. We will be fighting to the bitter end.

One of the points we make is in respect of what Hone said this afternoon: that this was a confiscation of Māori rights. I think Hone and some of his supporters are of the view that iwi and hapū have customary title to, have ownership of, the entire seabed and foreshore out to the end of the territorial sea, to the extent of the 12-mile limit. It is important to come back to the decision in the Ngāti Apa case. Once again, the Attorney-General quoted that case this afternoon. The view that Māori own the seabed and foreshore is a common view amongst some Māori. It is interesting that a hīkoi is marching to Wellington as we speak. But I suggest that the reason the hīkoi has been formed and is marching on this occasion is a lot different from what it was in 2004. In 2004 the hīkoi was marching for access to the courts; it was acting for access to the courts and for justice. My colleague the Hon Rodney Hide joined that hīkoi when it arrived in Wellington.

I will comment on some of the observations made by Dame Sian Elias, the Chief Justice. She said in the Ngāti Apa case: “This appeal deals only with the initial question of whether the Maori Land Court can enter into the substantive inquiry.” The appeal dealt only with whether the issue could legally go before the Māori Land Court. It did not deal with whether iwi and hapū have customary title. She went on to say: “The significance of the determinations this Court is asked to make should not be exaggerated. The outcome of the appeal cannot establish that there is Maori customary land below the high water mark.” There you have it. She said that the outcome of the Ngāti Apa case cannot be exaggerated. It did not establish that there was Māori customary land below the high-water mark.

Ever since that judgment, despite her observations that it did not determine whether there was Māori customary land below the high-water mark, a group of New Zealanders has believed that is the case—that Māori own the seabed and foreshore. In this case we have seen the National Government take fright, as the Labour Government took fright in 2004 with the passing of the Foreshore and Seabed Act. Both National and Labour have sought to restrict the rights of iwi and hapū to go to court to claim their customary title, I guess under a belief that they would win large amounts of New Zealand.

In this case they have set a codification—a series of tests—that the Attorney-General says will lead to certainty and to equity. I will explain in my call why that will do exactly the opposite, why it will not lead to certainty, and why it will not lead to equity. Interestingly, Dame Sian Elias goes on to say: “Nor will the appeal resolve questions of the nature of any property interest in land (whether it approximates a fee simple interest or whether it is lesser property).”

I will focus most of my remaining time on the issue of customary title, but before doing so I will comment very briefly on the concept of mana tuku iho. Essentially, mana tuku iho creates a universal right of consultation. Pita Sharples and Tariana Turia wrote in the New Zealand Herald last week: “The new bill acknowledges that ALL coastal iwi have connections to the coast. Their mana tuku iho (inherent authority) entitles them to protect their wāhi tapu and to be consulted on conservation and resource-management issues.” One of the reasons this bill is a racist bill is that that right is given only to coastal iwi. What about other people living on the coast who are not iwi? What about non-Māori New Zealanders who also live on the coast, whose families have lived on the coast for over 100 years? They do not have the same rights as provided for in this bill. If that is not a racist provision, I do not know what is.

The issue comes to the tests of marine title and the rights that derive from it. National has perpetuated the myth, the fiction, that only very small areas of New Zealand will be opened up to claims of customary title. Its members have said in their publications, for example, that “The test”—for customary title—“requires continuous, exclusive use and occupation of an area since 1840. As you can imagine, that is not an easy test to meet.” Well, it is not an easy test to meet, but that is not actually the test. One does not actually have to prove continuous and exclusive occupation; one has to prove exclusive and continuous occupation without substantial interruption. What is the effect of that proviso? We do not know, Christopher Finlayson does not know, and the Court of Appeal does not know. To suggest that this bill will lead to certainty is a load of hogwash.

If when I look at the Minister’s Supplementary Order Paper 207, I see the addition of new clause 61(2A), which states: “The use at any time, by persons who are not members of an applicant group, of a specified area of the common marine and coastal area for fishing or navigation does not, of itself, preclude the applicant group from establishing the existence of customary marine title.” So iwi can make a claim for customary title, iwi can say they have occupied the land exclusively, but the fact that other people come and fish, boat, and navigate through that land does not preclude iwi from making a claim, it does not preclude the court from awarding iwi customary title, and it does not preclude the Government from entering into an agreement to grant customary title.

To perpetuate the fiction, the myth, and to mislead New Zealanders that the right to apply for customary title will apply to only a very small part of New Zealand is, I think, deceptive in the extreme. I think National is relying on the fact that New Zealanders are not taking an interest in this issue, but I think in time that they will, and they will take an interest in ever-bigger numbers.

I turn to clause 64, and to the benefits that flow from being granted customary marine title. The first thing we know is that with a grant of customary marine title comes the ownership of minerals, other than those deemed to be owned by the Crown under the Crown Minerals Act: basically, all minerals and resources other than oil, gold, silver, and natural resources. That right is granted specifically in this bill out to the 12-mile limit—out to the limits of the territorial sea. Well, in 1840 the limit of the territorial sea was recognised as being 3 miles, so in this bill we are setting ourselves up to transfer ownership of resources from all New Zealanders to a small, select group of iwi who can meet these tests. The Government suggests that that is equity, but how does that protect the rights of all New Zealanders?

Let me go on. There is also the right to protect wāhi tapu. I would be the first to recognise Māori custom; I would be the first to recognise sacred areas. But New Zealanders probably do not appreciate that when a claim is lodged for customary title, areas can be designated as wāhi tapu. They are designated as sacred, and that gives iwi the right, if customary title is subsequently granted, to say that is a sacred area and they do not want other New Zealanders to enter.

Preamble

The ACT Party strongly opposes this legislation in the same way that the ACT Party opposed the Foreshore and Seabed Act 2004. In fact, the ACT Party is the only party that has had a consistent policy, a policy based entirely on principle, in its opposition to the provisions of this bill. The ACT Party over the next 2 or 3 days, with your support, Mr Chairperson, will take the opportunity to put its arguments out into the public domain and to repeat those arguments, because they are powerful arguments. They are arguments that have been ignored by the Government and they need to be understood by all New Zealanders.

Let me comment very briefly on the speech made by the Leader of the Opposition, who commented on the preamble. He said that the Prime Minister promised that this bill would not proceed unless it had widespread support. We in this Chamber know today that this bill does not have widespread support. The suggestion that it has widespread support is an absolute fiction. The preamble sets out the history of this bill and of how we got to this stage. As the Attorney-General, the Hon Chris Finlayson, points out, it started with the decision in the Ngāti Apa case in 2003. The name Ngāti Apa is bandied around the Chamber. Most of the members of this House would know some of the background, but probably few members of the New Zealand public would know it. In the Ngāti Apa decision we had nine iwi from the upper South Island—

Rahui Katene: Eight.

Hon JOHN BOSCAWEN: I am told it was eight. I am happy to be corrected on points of fact, but it was more than just one iwi. It was more than just Ngāti Apa iwi; there were eight iwi. The eight brought a case asking for recognition of what they said their customary rights were to parts of the seabed of the Marlborough Sounds. Ngāti Apa was just one of those iwi—just one of those eight iwi. If you like, they have lent their name to this case, which is now etched in the memories and the history of the debate on this bill.

They brought a case that went all the way to the Court of Appeal. The Court of Appeal accepted their claim to the extent that they were seeking to have their case heard in the Māori Land Court, which had previously been denied to them. The right to bring their claim had been denied to them in the High Court. The High Court acted on a decision of the Court of Appeal in 1963—the Ninety Mile Beach decision. It was expected that the Court of Appeal, when it heard this case in 2002, would follow the decision in 1963, but it did not, to the surprise of all, including, I suspect, the Prime Minister and the deputy leader of the Government of the time. The Court of Appeal decided that Ngāti Apa and the other seven iwi were entitled to go to court.

It is very important to understand what the court decided and what it did not decide. That is the crux of this issue. The court did not decide that Ngāti Apa and the other seven iwi had customary title to the seabed and foreshore—it did not say that. There was a widespread misrepresentation or misunderstanding of that decision. The decision did not say that. What the Court of Appeal said was that Ngāti Apa had the right to go to court—the right to go to court. That is a right that the ACT Party has consistently spoken up for and defended ever since the decision was brought down by Justice Sian Elias and her four colleagues in 2003—the right to go to court.

When the previous Labour Government announced within 36 hours of that decision that it would pass legislation to take away that right, or, certainly, to severely restrict it, the ACT Party opposed it. We know the background. We know that Tariana Turia gave up her ministerial position in the Labour Government, stood in a by-election, and formed the Māori Party. It is important to understand that that decision said that iwi have the right to go to court and nothing more. In fact, if it did say anything more, what the judges said was that it was a very, very high test—a very, very high test to award customary title.

I carry on to the next recital of the preamble, recital (2). It talks about the bitterness and the difficulty that the passing of that legislation in 2003 created. As a consequence, when National was elected into Government it formed a confidence and supply agreement with the Māori Party. The National Government agreed with the Māori Party to review the Foreshore and Seabed Act. As the Attorney-General says, and as is laid out in recital (3) of the preamble, the ministerial review panel recommended that the Act should be scrapped and replaced. Following that we had this document here, which was produced by the office of the Hon Christopher Finlayson. It is called “Reviewing the Foreshore and Seabed Act”. It is a very concise document. I recommend to anyone who has followed this issue to read what this document says. I am sure it can be downloaded from the internet—I presume it can be.

The interesting thing about this document is that the Attorney-General announced his decision to call this review, to publish this review, the week before Easter 2009, and he announced that he was closing submissions on 30 April. That allowed only 4 weeks for the people of New Zealand to digest this document, to understand the history, and to make their submissions. What we now know is that 1,500 organisations made a submission on it. I say that we now know that, but we did not know that in May, we did not know that in June of last year, we did not know it even in July or in August, because when the Attorney-General was asked to release the submissions that were made on the document he refused to do so, he continually refused to do so, and it was not until an Official Information Act request was lodged that he reluctantly released those submissions late last year. What do we know? We know that 90 percent of the people who made submissions on this document oppose what the Government proposes. The Government set out four options. It was very clear from reading this document that option four, the Government’s proposed option, was opposed by 90 percent of submitters.

We come now to recital (3) of preamble, which refers to the bill. The process of the bill passing through this Parliament has been an absolute disgrace—an absolute disgrace. I sat as a member of the Māori Affairs Committee, which travelled around New Zealand hearing submissions on this bill. I was supported by my colleague Hilary Calvert. The select committee heard submissions on this bill in Whangarei, in Auckland, in Tauranga, in Wellington, in Blenheim, and in Christchurch.

Hon Tau Henare: Hilary Calvert was there most of the time, not John Boscawen.

Hon JOHN BOSCAWEN: I am very happy to respond to the taunts of Mr Tau Henare. He was the chair of that committee, and, clearly, he has a very bad memory. I attended the sittings in Whangarei, in Auckland, in Wellington, and in Blenheim. Hilary Calvert also attended hearings in Tauranga, in Christchurch, and in Auckland. The ACT Party was represented. We listened to the people. I say on behalf of my colleague Hilary Calvert, who will speak on the preamble later in this debate if the Chair gives her the call, that we were absolutely shocked at the way that some of the submitters were treated by the select committee. They were treated discourteously. People of New Zealand come along, they get involved in the parliamentary process, they make submissions, but they do not come along expecting to be abused, to be spoken down to, and to be called liars.

What came out of that select committee? There were 4,500, or was it 5,000, submissions. What we do know is that an overwhelming number of submissions on the bill strongly opposed it. Now we come to the farce—the absolute farce—with which the members of the select committee considered those 4,500 submissions. They met together on the first afternoon that Parliament sat this year and considered a 520-page report—520 pages—in less than 2 hours. They wrote a report the following day, the report of the majority, which was one page—one page. They summarised this issue in one page. Attached to that page were 40 pages of recommended changes

ACT’s stance on the foreshore and seabed has always been consistent. In 2004 ACT argued that claims to customary title over the area of the foreshore and seabed should be left to the courts to decide. Today I reiterate that stance. ACT believes that the courts should decide this issue. I reiterate the stance of the ACT Party by saying that we support the repeal of the 2004 Act, and oppose the passage of the Marine and Coastal Area (Takutai Moana) Bill. Although National and Labour members claim that the bill restores the right of iwi to have their day in court when claiming customary title over an area of foreshore and seabed, the fact is that it does not.

Hon Christopher Finlayson: Codification or no codification?

Hon JOHN BOSCAWEN: At this stage I acknowledge Mr Finlayson, who has just referred to codification. I will come back to codification very shortly. I acknowledge Mr Finlayson’s acknowledgment of the speech and contribution by David Parker, because it seems that Mr Finlayson, alone in this House, is prepared to acknowledge the contribution of an opposite number.

When the Prime Minister delivered his statement on the first sitting day of Parliament this year, we heard responses from the party leaders. Tariana Turia got up and said that she almost felt ashamed to be a Minister in the Government and to be supporting the Government, given the level of unemployment among young Māori. Earlier this afternoon, when I listened to David Parker, whom Mr Finlayson generously acknowledged, I felt the same shame that Tariana Turia referred to on the first sitting day of this year. I felt the shame of listening to the interjections and contributions of Tau Henare, Paul Quinn, and, more recently, Simon Bridges. Although the leader of the Green Party does not want to record and acknowledge those contributions so that they are written into the record of Hansard , I am prepared to record them.

This is an issue about two things. It is an issue about tests over customary title, and about the benefits that come from those tests. In essence, we have two views. One view states that the tests for granting customary title and all that comes from it are far too loose, and that far greater areas of customary marine title will be awarded as a consequence of the loose tests laid down in this bill. The contrary position is the one espoused by people like a number of Māori Party supporters who came and opposed this bill and a number of iwi who said that the tests are far too tough. In fact, Ngāi Tahu came to the select committee hearing in Christchurch and presented a map of the South Island with the 200-mile economic zone marked on it and said, essentially, that everything within that 200-mile zone was theirs.

Tariana Turia referred earlier this afternoon to the contribution of the Coastal Coalition. I acknowledge the work that the Coastal Coalition has done, and in particular the work of Hugh Barr and Muriel Newman. The position of the Coastal Coalition is not the ACT position. Unlike the Coastal Coalition, the ACT Party firmly believes that iwi should have their right to go to court. They should be able to bring a claim for customary title.

I felt ashamed when I saw some of the material put out by National on this bill.

Hon Tau Henare: Give up your warrant; go on. Give up your warrant.

Hon JOHN BOSCAWEN: I am looking at an extract from the Beehive website, which is headed “Setting the Record Straight”, and states: “You may have heard opponents of the Marine and Coastal Area Bill making inaccurate”—

Hon Tau Henare: No you wouldn’t, would you, because you like the cars.

Hon JOHN BOSCAWEN: Let me interrupt my speech and acknowledge Tau Henare. I say to Mr Henare that I felt ashamed at the way he treated the New Zealanders who appeared before that select committee.

Hon Tau Henare Is that right?

Hon JOHN BOSCAWEN: Yes, it is. I felt ashamed, and I feel ashamed, that I am supporting a Government that plays the ACT members off against the Māori Party members. I felt ashamed to see the way some New Zealanders who appeared before that select committee were treated. Yes, there may have been members who had eccentric views, and there may have been members who had racist views, but the role of a select committee is to listen to what the public of New Zealand have to say and to treat them with respect. People who make a submission on law do it out of the goodness of their heart and what they believe within them.

Let us look at the Government’s website and an extract headed “Setting the Record Straight”. It states: “You may have heard opponents of the Marine and Coastal Area Bill making inaccurate claims about the legislation. We want to set the record straight:”. The Beehive website goes on to summarise a few of the key issues. As Mr Finlayson said, it is about codification; it is about the tests. The website states that the opponents claim that “The bar has been lowered on the qualifying criteria so anyone can apply.” It further states: “The criteria to apply for customary title is extensive. The most rigorous test is proving uninterrupted and exclusive use and occupation of an area of the common marine and coastal area, from 1840 to the present day. Many areas of New Zealand are not eligible because of this requirement.” That is interesting, because that is a very tough test. I note that the Prime Minister, in reply to comments by Jim Matson, who is a long-time National Party supporter, in the Sunday Star-Times  2 weeks ago, made the same comment. Although the article appears under the name of John Key, I suspect it was written for him by the office of Mr Finlayson. It states: “The test for customary title requires continuous exclusive use and occupation of an area since 1840, and as you can imagine, this is not an easy test to meet.”

Well, no, it is not an easy test to meet, but it is not actually the test. The test is not requiring continuous exclusive use and occupation of an area since 1840. No sooner had the Attorney-General finished his first reading speech back in September, he said that he intended to lodge a Supplementary Order Paper to change the bill that he was presenting. He said: “We’re not going to have a test that requires you to show exclusive use. We’re going to allow people who have used it, we’re going to allow people who have boated through the area, we’re going to allow people to fish through an area, and the mere fact that they have done that does not preclude an iwi or hapū coming along, making a claim, and saying that they have had continuous and exclusive use.”

The Government has tried to reassure New Zealanders, it has tried to put New Zealanders at ease, and it has tried to say that there is not an issue—the Government is popular; back the Government. The ramifications of this will come back to make New Zealanders rue it for many, many years to come.

Another key issue here is that the Prime Minister says that, put simply, the bill is a new approach to the ownership of the common marine and coastal area. It guarantees free public access to New Zealanders. It also protects fishing rights. If someone is using the marine and coastal area for something at the moment, then the bill guarantees that person will be able to continue to do so. It guarantees it. We are told we are allowed to access an area, but we have no guarantee of use and occupation.

We are told there will be some 385 changes to the bill. Has the Government had the courtesy of discussing with the people of New Zealand what those changes are? No, it has not. We have heard this afternoon that a Supplementary Order Paper will be lodged in the House tomorrow, and we will be debating it on Thursday.

The ACT Party is bitterly opposed to this bill. It will deny rights to some who have them, and give rights to others who do not have them. It will take from some, and give to others. The ACT Party strongly opposes this bill, and we will fight it to the bitter end. I hope that the other speakers in this House are given greater courtesy than Mr Parker had shown to him this afternoon. Thank you

“In response to Mr Matson’s letter, Prime Minister John Key says that a test of continuous and exclusive use and occupation of an area since 1840 is not easy to meet.  He is absolutely right – but this is not actually the test,” Mr Boscawen said.

“In reality, additional caveats weaken the test and ensure that the area able to be claimed is greater.  Firstly, the requirement of continuous and exclusive use and occupation since 1840 is subject to the proviso that use and occupation will be deemed ‘continuous and exclusive’, provided that any interruption is not ’substantial’.  No one knows what ’substantial’ means in this context, which will only lead to uncertainty and dispute.

“Further, to claim the Bill builds on the Ngati Apa test and builds on Australian and Canadian common law ignores the fact that no Commonwealth court has granted customary title over seabed.  The Government is legislating where no court has gone before.

“Mr Key also says that the Bill guarantees free public access to the common marine and coastal area – but he doesn’t point out that iwi will be able to designate areas as being wahi tapu prior to lodging a claim, and then exclude others from these areas.  The Bill even provides an enforcement regime.  It is therefore impossible to guarantee anything.

“He then says the Bill will be changed to ensure that any negotiated agreements are subject to full public and Parliamentary scrutiny.  What he didn’t explain is why the National and Maori Party representatives on the Maori Affairs Select Committee voted to report the Bill back to Parliament without alteration.

“This was a major abuse of Parliamentary process and ignored the submissions of over 4,000 individuals and groups.  Members of Parliament have been waiting since October to see the wording of the provision to guarantee free access.  We are still waiting.

“ACT believes the Bill is divisive.  It will deny rights to some iwi and hapu, and grant them to others who do not have them.  We urge the Government to withdraw the Bill,” Mr Boscawen said.

“During Question Time in Parliament today, I asked Attorney-General Chris Finlayson what evidence he had been able to show the Prime Minister of this ‘widespread support’ – and he could not point to any,” Mr Boscawen said.

“Mr Finlayson could not point to any evidence of widespread support for the simple reason that there is none.  Rather, we have the complete opposite: widespread opposition throughout the country.

“The sheer fact of the matter is that this Bill is finished and should not be allowed to pass.  The process surrounding it has been a complete farce, and almost every single submitter – Maori and non-Maori alike – has opposed the Bill in its current form.

“Now it has become even clearer that the Bill does not even pass the Prime Minister’s own criteria of ‘widespread support’ as outlined in March last year.

“I call on the Prime Minister to keep his word to New Zealand and scrap this Bill – rather than trying to rush this Bill into law now so as to put as much time as possible between its passing and the election,” Mr Boscawen said.

“The Maori Affairs Select Committee’s hearings on this Bill have ended.  During this process Maori and non-Maori alike made it abundantly clear that there is no mandate for this Bill,” Mr Boscawen said.

“Despite this, however, the National and Maori Parties remains determined to forge ahead with this flawed and deeply divisive legislation.

“ACT is the only Party to have maintained a consistent view on the foreshore and seabed issue: the 2004 Act should be repealed, and Maori returned the right to have their claims heard in open court.

“The foreshore and seabed is a huge issue for all New Zealanders and the Government cannot be allowed to put short-term political gain ahead of finding a long-term and just resolution,” Mr Boscawen said.

Foreshore & Seabed Public Meetings

• 7.30pm, Feb 7: Channell View Lounge, Mary Thomas Centre, Gibbons Rd, Takapuna
• 7.30pm, Feb 10: Harbour View Lounge, Ponsonby Cruising Club, Westhaven Dr, Westhaven
• 7.30pm, Feb 14: Orakei RSA, Kepa Rd, Orakei
• 7.30pm, Feb 17: Hawkins Centre Foyer, Ray Small Dr, Papakura
• 7.30pm, Feb 21: Bucklands Beach Yacht Club, Ara Tai, Half Moon Bay, Auckland
• 7.30pm, Feb 24: St John the Baptist Church, Church St, Northcote, North Shore

“Yesterday I advised the National Party members of the Maori Affairs Select Committee that they continue to push this Bill at their own peril – clearly the Labour Party members took that advice on board,” Mr Boscawen said.

“I can only hope that the Government will also realise the futility of continuing on with this Bill.  Almost every other Party in Parliament has followed ACT’s example and is refusing to support the Bill, and it will not be long before the Maori Party – already under immense pressure from its supporters – opposes it as well.

“The Marine and Coastal Area (Takutai Moana) Bill satisfies no one and National effectively stands alone – not just in Parliament, but in all of New Zealand – in wanting it passed into law.
 
“The writing is on the wall: this Bill is doomed.  I urge the National Party to save face and simply withdraw the Bill now, rather than suffer the indignity of failing to push it through the House,” Mr Boscawen said.

“Mr Harawira’s comment before the Maori Affairs Select Committee yesterday was right on the money – as was his description of claims that Maori opposing the Bill simply don’t understand it,” Mr Boscawen said.

“The foreshore and seabed is a huge issue for Maoridom – indeed, for all New Zealanders – and it is ridiculous for the Government to claim that any opposition to its legislation is born of ignorance about the Bill.

“National needs to recognise that this Bill is hopelessly flawed and satisfies no one.  Opponents of this Bill are not ignorant – nor are they ‘clowns’ or ‘paranoid’, as Attorney-General Chris Finlayson would have us believe.

“The level of opposition to this divisive and flawed Bill throughout the country is huge and shows the Government has no public mandate to pass it.  National should scrap this legislation, repeal the Foreshore and Seabed Act 2004, and restore the right of iwi and hapu to have their claims heard in open court,” Mr Boscawen said.