Marine and Coastal Area (Takutai Moana) Bill — In Committee

Tuesday, March 15, 2011


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

Part 1 Preliminary provisions

Thank you, Mr Chair, for the opportunity to speak on this part. My colleagues the Hon Heather Roy and Hilary Calvert also wish to make a contribution. In a short time I will address certain definitions in the Marine and Coastal Area (Takutai Moana) Bill. In particular, I will refer to the definition of “marine and coastal area”, which is set out in clause 7, the definition of “planning document”, which appears later in that clause, the definition of “RMA permission right” and its implications, also set out in clause 7, and the definition and significance of the meaning of “accommodated activity”, which is at the beginning of that clause. But before addressing those very specific provisions of this part I need to make two general comments to put some of these issues in context.The first thing I will do is acknowledge the contribution earlier in this debate of Rahui Katene. She got up in this Chamber and said she was proud to be a daughter of Ngāti Apa, and went on to list a number of other iwi. And she should be proud—she should be absolutely proud. One has to look no further than the article that appeared in the New Zealand Herald  last Wednesday penned by the Hon Pita Sharples and the Hon Tariana Turia, in which they set out the details of this bill and its implications. One has only to read that article to realise how proud Rahui Katene should be and how proud the Māori Party should be. The passing of this bill will be the culmination of many years of activity. And the bill will pass; the Government has told us that it is committed to pushing it through. As Maryan Street has told us, it will pass by the very, very narrow margin of 62 votes to 59. This legislation is a major issue. I do not believe that its full implications are understood by the wider New Zealand population. In fact, I am not even sure they are understood by the media. I urge all New Zealanders, or, certainly, everyone listening to this debate, to go to the online edition of the New Zealand Herald  and read the article by Tariana Turia and Pita Sharples that was published last Wednesday.

I will quote two sentences from it. They started by saying that “The new bill acknowledges that ALL coastal iwi have connections to the coast. Their mana tuku iho (inherent authority) entitles them to protect their wahi tapu and to be consulted on conservation and resource-management issues.” The interesting thing about that is it protects the rights of all coastal iwi. Does it protect the rights of all other New Zealanders who are not coastal iwi? Does it protect the rights of all other New Zealanders who have property on the coast? I have travelled up and down the country over the last 6 months, trying to create awareness of this issue, and when I spoke to the Taupō rotary club back in October, I met a gentleman who told me that he can trace his ancestry back to the early 1800s, certainly back to prior to 1840, when the Treaty of Waitangi was signed. His family owns freehold land, and it can trace its ownership back to prior to the Treaty of Waitangi. The family still owns that land today. It has owned it for over 150 years. Under this bill, his interests are not protected. His interests are not protected and his interests are not recognised. The National MPs sit there and shake their heads. All I can say to those National members is that they do not understand the provisions of this bill. Sadly, the implications of not understanding those provisions, and of not reading the many hundreds if not thousands of emails that have come in, will dawn on them far too late.

The second point I will raise before I get down to looking specifically at the implications of the definition of “common marine and coastal area”, the implications of “planning document”, and the implications of “RMA permission right” is about a reference made earlier this afternoon to the Coastal Coalition. Coalition members have been demonised in this debate. They have been accused by Mr Finlayson of spreading misinformation. Mr Finlayson has responded to the Coastal Coalition with a page set out on the Beehive website. All New Zealanders can go to the Beehive website. I imagine that Mr Finlayson is ashamed of what appears on that website. Under the heading “Setting the Record Straight” I read and New Zealanders will read: “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.”

I encourage Amy Adams, if she looks at nothing else, to look at this single page. The Attorney-General recognises four specific issues. I could make some points on all four of them, but in the interests of time I will make a point on just one, which relates to Part 1 and the definition of “common marine and coastal area”. The article states that opponents claim that “The bar has been lowered on the qualifying criteria so anyone can apply”—“The bar has been lowered on the qualifying criteria so anyone can apply”. The Attorney-General says that “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.” So “The most rigorous test is proving uninterrupted and exclusive use and occupation …” since 1840. “Many areas of New Zealand are not eligible because of this requirement.”

Well, most New Zealanders and, I suspect most National members who will be voting for this bill, would think that was a very tough test. It is a tough test, but it is not actually the test. People do not have to prove that they have had continuous and exclusive occupation, and the reason I say that is that under the very provisions of this bill it is acceptable for people who are not part of the claimant group to have fished in an area, to have boated in an area, and to have navigated through an area, yet the claimant group can say that it has continuously and exclusively occupied that area. That is an absolute fiction; it is a charade to say that we are making the test continuous and exclusive occupation when in actual fact we are not. The tragedy is that members of the public will wake up to that fact. National is punting that they will not wake up to it until after the election on 26 November, but that they will wake up I have no doubt.

Let me turn now to the definition of “marine and coastal area”. As I said earlier, the ACT Party has a number of amendments on this part that we want to speak to. We are proposing amendments, for example, to the definitions in clause 7 of “local authority”, “mana tuku iho”, “mineral”, and “planning document”. Let us look at the definition of “marine and coastal area”. What is the definition of “marine and coastal area” set out in clause 7? The definition states “marine and costal area—(a) means the area that is bounded,—(i) on the landward side, by the line of mean high-water springs; and (ii) on the seaward side, by the outer limits of the territorial sea;”. So the marine and coastal area goes from the high-tide mark to the outer limits of the territorial sea—it goes out 12 miles.

The reason that is important is that the bill provides for a massive transfer of wealth from all New Zealanders to certain select iwi. Under the provisions of this bill it is assumed, in the absence of information to the contrary, that customary title is held in all seabed and foreshore, in all areas of the marine and coastal area. The bill actually states that customary title lies with an iwi claimant, and that it is up to the Government to prove that that is not that case—clause 105 is the significant clause. The reason I raise this issue is it has extreme significance. It has extreme significance for the definition of “marine and coastal area” and, as a consequence, for the definition of “common marine and coastal area”, because under clause 105 it is up to the Crown to prove that customary title does not exist, as opposed to the iwi proving that they have customary title.

Another key definition is the definition of the Resource Management Act permission right

Part 2 Common marine and coastal area

The ACT Party has a number of amendments to Part 2, and a number of issues to raise. I start this first call by saying that I hope we have the opportunity to raise those points during the debate this evening and as it continues into tomorrow on this part. I will talk specifically about two clauses: clause 14, which runs to 1½ lines, and clause 17.Before I address those two clauses in this call on Part 2, I need to quickly respond to a number of points. This debate on Part 2 started with an introduction by the Minister in the chair, the Attorney-General. The Hon Chris Finlayson was at pains to point out that New Zealanders would have access to the common marine and coastal area, and that it was never an issue and had never been an issue, but, notwithstanding that, he was prepared to succumb, if you like, to the urgings and the pressure of the ACT Party to amend clause 27 so that access to the common marine and coastal area would be without charge. In making those comments Mr Finlayson took the opportunity to take aim at my colleague Hilary Calvert. It was a very personal, direct, and hurtful aim. I am very sad that the Minister felt he had to stoop to those levels, and I acknowledge the comments of Metiria Turei, who rose to her feet immediately after his remarks were made.

I will also comment very quickly on the point that Kelvin Davis made during his speech in this debate. It was interesting that he was subject to interjections from Mr Quinn, I think it was, who taunted him by asking why he did not make his comments during the debate in the Māori Affairs Committee. Well, I suspect that Mr Davis would have liked to make those comments in the select committee, but this Parliament is ignoring the fact that the Government used its majority on the Māori Affairs Committee to ram this bill through.

We have a report from the Māori Affairs Committee. The official report of the committee is simply one page, and attached to that is—

The CHAIRPERSON (Lindsay Tisch): The cross-interjections are too loud. Calm it down.

Hon JOHN BOSCAWEN: We then have the Labour Party, Green Party, and ACT Party minority reports, followed by 40 pages of recommendations from the officials. Normally the select committee would expect to see those recommendations incorporated into the drafting, an amended bill would come back before the select committee, and members of the select committee would consider it and look at the various amendments and at what was best and what was not best. The reason this debate will go on for so long is that the Government used its majority on the select committee to shut down that debate and shut down people like Mr Davis, who was a member of that select committee. We now have to debate those things in the Committee of the whole House.

I now move to clause 14 of the Marine and Coastal Area (Takutai Moana) Bill, because it is the essence of this bill. Clause 14 is in Part 2, which is the part we are debating right now. People watching this debate on television or listening on the radio might ask what clause 14 says. Very simply, it states: “The Foreshore and Seabed Act 2004 … is repealed.” The Foreshore and Seabed Act is repealed, and that is why we are here tonight.

I will repeat a claim I made earlier this afternoon, which was that the ACT Party has been entirely consistent on this issue the entire way. We are talking about property rights, access to justice, and access to the courts, and on those things we absolutely support the Māori Party. We do not believe that this bill provides those things, and we do not believe this bill is the right response, but we absolutely support the Māori Party on the repeal of the Foreshore and Seabed Act 2004 and we absolutely stand up for the right of iwi and hapū to go to court. The ACT Party, and, I suspect, the National Opposition at the time, would have been the only members in Parliament who supported Tariana Turia when she first took her lone stand. I make it absolutely clear that our position on this bill is that we want to see that Act repealed.

Having said that, it is important to understand what the decision in the Ngāti Apa case was. The decision was that iwi have the right to go to court. It stated that there might be unextinguished customary rights out there, and that iwi have the right to go to court. I cannot emphasise enough that the Court of Appeal did not state that there were unextinguished customary rights, or that there was customary title; it simply stated that there might be, and that iwi and hapū had the right to go to court.

One of the reasons we object so strongly to this bill and will fight against it so hard is that we believe it makes things so much worse. The Attorney-General constantly calls out “codification, codification”. He says that we have to put rules in legislation so that judges will know what to do. In fact, he is making it much harder for judges. If the Government had simply repealed the Foreshore and Seabed Act 2004 and that was all it had done, then ACT could have supported that. Alternatively, as Mr Parker has suggested, if the Act had been repealed, provision had been made for claims to be taken to the High Court, and access to the common marine and coastal area had been guaranteed, then the ACT Party could have also supported that. But the proposal is to repeal the Act and to put in place a series of tests for the granting of customary title. Those tests go beyond anything that has been provided for in any Commonwealth court in the world. There have been no successful cases in the United Kingdom, Canada, or Australia. It might interest members to know that the only claim that was brought for customary title or ownership of the seabed in Australia was lost.

National has the gall to put it out there that this bill builds on common law, precedent, and decisions that have already been made in other countries around the world. Let me repeat that there has been no legal decision that passes customary title—or ownership, because we are talking about something akin to ownership—to a customary title applicant. The reason the ACT Party opposes this bill so strongly is that the Government is assuming the courts will go and grant customary title over large areas of New Zealand’s coast. It is putting in place tests that, in the eyes of the Government, will reduce what is granted. In fact, the effect will be to substantially increase the areas that may be transferred into customary title, and when I say “transferred into customary title”, I mean that the benefit will be transferred from all New Zealanders to a select iwi.

That brings me to clause 17, “Continued Crown ownership of minerals”. This clause provides that, notwithstanding the case where an applicant group might gain customary title, all nationalised resources, which means petroleum, gold, silver, and uranium, remain the property of the Crown. There are a couple of issues related to that. The first issue is the question of what does not—what has not been nationalised—and clearly one of New Zealand’s major resources that has not been nationalised is iron sands. The Ministry of Economic Development has estimated that this country has iron sands worth some $600 billion to $1,000 billion—that is $1 trillion—off its coast. A large part of that resource lies off the coast of Taranaki and the Waikato. We might say that it belonged to iwi in 1840, but one of the fallacies of this bill is that the common marine and coastal area—