Marine and Coastal Area (Takutai Moana) Bill — Third Reading

Thursday, March 24, 2011

I begin this afternoon by responding to the comments of the Hon Tariana Turia on the Marine and Coastal (Takutai Moana) Bill. She said that the Māori Party was right to repeal the Foreshore and Seabed Act 2004. The ACT Party agrees with her, and has always agreed with her. Tariana Turia and the Māori Party members know that we strongly opposed that Act when it was passed through this Parliament in 2004.

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.