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

Thursday, March 17, 2011

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)

Clause 1 Title

I acknowledge the contribution of David Parker. He has contributed significantly to this debate, both in the House and in the Māori Affairs Committee. Some comments Mr Parker has made this afternoon I strongly disagree with, and I hope to explain that in the course of the next 5 minutes; if not, then on Tuesday.Mr Parker began his address this afternoon by acknowledging the officials, and let me reiterate that. I thank the officials in the Chamber this afternoon for their support, and I thank them for their advice. They are always willing to contribute to, certainly, my understanding, and that of the other members of the select committee. ACT members kept the officials and the other staff in the precinct of Parliament last night until after midnight. We are sorry for the inconvenience, but we do not apologise for it. The reason we did that—and I say this to the officials and to the staff of the parliamentary complex—is that we strongly oppose the Marine and Coastal Area (Takutai Moana) Bill. We said we would fight this bill every step of the way. We have done that, and we will continue to fight it next week. We do not resile from the decisions we have taken and the actions we have taken.

I will point out why we are right. If people listened to some of the speeches this afternoon, they would understand that. What did we have from Tau Henare this afternoon? He said within 36 hours of the decision from Dame Sian Elias in the Court of Appeal in 2003, the politicians had jumped out and created a mess. The politicians had jumped out and created a mess. He went on to say that this National – Māori Party Government has attempted to get it right, but only time will tell. Well, what a great contradiction. What Tau Henare has acknowledged this afternoon is that politicians’ interfering in this matter has created a mess. One would think it would be a pretty simple exercise, then, for the National Government to use its majority to repeal the Foreshore and Seabed Act 2004, and to send the matter back to the courts. But, no, it actually wants to add to the mess. National members want to add to the mess and confusion that Mr Henare has accused Labour of creating.

Then there was Rahui Katene. In fact, Rahui Katene has made a number of interjections this afternoon that would not have been placed on the record. I want to write those into the record, because the interjections I have heard—albeit quietly—from Rahui Katene this afternoon are absolutely correct. They are absolutely correct, and I believe that this bill is a big victory for the Māori Party. It is a massive victory for the Māori Party. As Tariana Turia co-wrote last week: “For a small party, we have achieved amazing results in a short time.” Rahui Katene, in response to some of Mita Ririnui’s comments, continually called out: “I understand the right to go to court.” Well, I understand the right to go to court, too, and the ACT Party understands the right to go to court