Hon CHRISTOPHER FINLAYSON (Attorney-General) : Part 4 of the Marine and Coastal Area (Takutai Moana) Bill sets out procedures relating to the recognition of customary interests either by agreement or order of the court, and it deals with some administrative details. The part I particularly want to focus attention on is Subpart 1, which provides the procedure for the recognition of customary interests. It can be done by either recognition by agreement, or recognition by the court.

The key changes proposed in the Supplementary Order Paper focus on the procedure for recognition by agreement. A number of people had made submissions both to the Māori Affairs Committee and to me personally about a desire for greater transparency. To make more transparent any agreement negotiated with the Crown for recognising customary title, the Supplementary Order Paper changes recognition agreements for titles to be brought into effect by an Act of Parliament instead of an Order in Council. That will allow scrutiny of agreements by members of Parliament at select committees, and it will allow the public some say in the matter.

The next point that needs to be addressed is an application for a recognition order. The matter of principle that people may wish to discuss concerns which court one should apply to. I have tried in the bill to provide the best of both worlds. An application will be made to the High Court, but the court may refer any question of tikanga to the Māori Appellate Court.

Members may wonder why I chose the High Court and not the Māori Land Court. I suppose I was very influenced by the history of the Ngāti Apa litigation that began in the Māori Land Court. It went to the Māori Appellate Court, thence to the High Court, and then the Court of Appeal, and by leave it could have gone to the Privy Council.

I am also very conscious that proceedings in both the Māori Land Court and the Māori Appellate Court are capable of being the subject of applications for judicial review. So if anyone really wanted to delay a matter or oppose a matter down to the wire, the easy thing to do, if something had begun in the Māori Land Court, was to seek judicial review of anything.

I was very concerned about cost and delay, which is why I have put in the bill that the proceeding commence in the High Court, but, as I say, it is best of both worlds because there can be reference to the Māori Appellate Court for any question of tikanga. The opinion of the Māori Appellate Court will be binding on the court. The court may also refer any question of tikanga to an expert.

The next point I wish to address is contained in clause 101, “Service of application”. This provision should allay any fears that it will simply be a question of an application served on the Crown. Local authorities have to be served, the Solicitor-General on behalf of the Attorney-General, and, importantly, any other person whom the court considers is likely to be directly affected by the application, and there needs to be public notice of the application.

Clause 105 is an important clause, and it is the subject of an amendment in the Supplementary Order Paper. This is the burden of proof clause, and it has been clarified to ensure that applicant groups are expected only to prove the positive elements in the tests. Some people have complained that that shows favouritism to applicants. It does nothing of the sort. The Court of Appeal in the Ngāti Apa case made it very clear, based on Canadian and Australian authority, that the onus of proving extinguishment lies on the Crown and that the necessary purpose must be clear and plain. Those authorities are well established.

Subpart 3 deals with regulation-making powers. The only provisions I refer honourable members to for the debate are in clause 118, which provides for the Governor-General, by Order in Council, to make regulations for administrative purposes, and in clause 119, which states that regulations may be made for the management of the common marine and coastal area, particularly subclause (1)(a), which provides for regulations for the safety and protection of members of the public who exercise rights of access in and over the common marine and coastal area.

Clause 119(1)(e) prescribes offences, which is something that is not contained in the 2004 Act. An amendment is also proffered in the Supplementary Order Paper to provide that any person breaching a regulation or by-law may be directed to stop. Most of the provisions in this part of the legislation are of an administrative nature, but there are some important questions, dealing with both recognition by agreement and order of the court, that need to be addressed.

Hon DAVID PARKER (Labour) : In my opinion the most important part of Part 4 is, as the Attorney-General has already adverted to, the way in which people can have rights recognised under this legislation—whether it can be done through an Act of Parliament or just by agreement through the Minister, or whether it needs to be done through the court. I want to come back to that point, but, before I do, I want to say that I was reflecting overnight on the tone of this debate, which I am pleased to say is quite measured. I think it reflects well upon us as a Parliament that it is measured.

Paul Quinn: Thank you, David.

Hon DAVID PARKER: Mr Quinn says thank you.

Chris Hipkins: He hasn’t participated in the debate.

Hon DAVID PARKER: Mr Quinn has not yet taken a call on a number of the parts, so maybe that is one of the reasons why his contribution has been measured. I think it is important to put on record the sorts of comments that were being made at the Committee stage of the debate in 2004, and I will quote some of them.

Dr Wayne Mapp, a current Minister in the Government, said: “What the Government is doing here is clearly preferring Māori above all members of the community … So it is very, very clear that we have two classes of citizenship. Māori are in the preferred position.” That was Dr Mapp. Gerry Brownlee, now Leader of the House and currently the Minister away in charge of earthquake recovery in Christchurch, said: “The bill is designed to placate Māori with a cheque and convince other New Zealanders that everything is OK when it is not.”

Grant Robertson: Outrageous!

Hon DAVID PARKER: It is absolutely disgraceful. That bill did not go as far as this one does. The Hon Nick Smith said: “This bill is racist. This bill is flawed.” That was his contribution.

Grant Robertson: He said that? Extraordinary!

Hon DAVID PARKER: I am reading extracts from Hansard in November 2004. We had contributions from Nick Smith later. He was responding to Dover Samuels, who was responding to fears that had been rarked up in New Zealand that the Foreshore and Seabed Bill was going to prevent people from having a barbecue on the beach. Those comments had been made by a number of people in the National Party. Don Brash was one of them; Bill English, from memory, was one of them, too. So Dover Samuels was saying that that was not the effect of the Foreshore and Seabed Bill, and actually history shows that Dover Samuels was right. There is now agreement that that was never going to be the case. What did Nick Smith say? He said: “Dover Samuels said that it would not make any difference to families wanting to go down to the beach and have a barbecue. Well, yes, it does and I will tell members why. In relation to the 10 percent that his Māori caucus claims will now be foreshore and seabed reserves, it will be for the management committee to decide who will be able to have a barbecue and where.” That is absolutely irresponsible. This was never about the beach; it was about the part of the foreshore that is wet. Access for recreational purposes was never ever at risk, and was expressly provided for in the Act. That was one of the most despicable acts of undermining race relations that we, I hope, will ever see in this Parliament.

In the third reading, after all that, Gerry Brownlee again came back with comments. He was the National spokesperson on Māori Affairs at the time, and that is why it is important that we remind New Zealanders how despicable these comments were. He said that “this is the first time a Government in New Zealand has passed a law that is as overtly racist as this one.” That was in reference to the Foreshore and Seabed Act, which National now says was not good enough in terms of protecting Māori rights. But at the time National members were saying the Act went far too far. So when I hear those members, including Tau Henare, saying “Apologise, apologise, apologise”—

Hon Tau Henare: That’s right; say sorry.

Hon DAVID PARKER: —to members on this side of the Chamber in respect of legislation that was not perfect but was not nearly as bad as was presented, and that was done against the climate of those sorts of comments, I say to Mr Henare that he should look at himself and record his own statements on talkback radio. He was not in Parliament at the time but he was rarking things up on radio.

I turn to a particular point of difference, which is one of the largest differences between National and the Māori Party, and the other parties in Parliament, and that is whether agreements should be able to be made between a Minister and the Crown, and then be given effect to by Parliament. The legislation as it came to the Māori Affairs Committee was even worse than that which has been proposed by the Attorney-General now, and I acknowledge that change. It stated that there could be agreements between the Minister and claimant groups that would be given effect to by way of regulation, without either parliamentary oversight or court oversight. The Supplementary Order Paper changes that and states that we can now have legislation to that effect. The Attorney-General says there is precedent for that, because that is how the Ngāti Porou settlement was given effect to.

The position that other parties in this Parliament have got to is that we think there should be absolutely fulsome recognition of unextinguished Māori interests in the foreshore and seabed, but we also think there should be no more than fulsome recognition of unextinguished customary interests. If it is more than fulsome recognition of an unextinguished interest, it is not recognition of a common law right; it is actually a Treaty settlement. The mixture of these two concepts needs to be handled very carefully. Although we support Treaty settlements being pursuant to an Act of Parliament, we do not support recognition of existing interests in the foreshore and seabed through Parliament. We think those things are more cost-effectively and more properly, openly transparently, fairly achieved through the courts.

Paul Quinn: Gobbledegook.

Hon DAVID PARKER: “Gobbledegook”, says the “lawyer” from the other side. We already covered, yesterday, the issue that it is certainly not cheaper through Parliament; it costs over $2 million for every statute in this Parliament. So the cost of a statute giving effect to a foreshore and seabed agreement is probably worth more than the underlying interests—a bit of a nonsense in the first place—and it certainly costs more than the alternative process through the courts. There are a range of interests—

Paul Quinn: They’re not allowed legal aid, for a start.

Hon DAVID PARKER: What was that? Not if we take legal aid into account?

Paul Quinn: I said they’re not allowed legal aid under this bill.

Hon DAVID PARKER: I was saying that even if we were to subsidise the cost of court processes, it would be a lower cost to the taxpayer to do that than to do it through Parliament. It is patently clear that that is the case. That is what I was saying.

Why are court processes important? There is not a balancing of interests here; there is recognition of extant, existing Māori interests in the foreshore and seabed. We all in this Parliament now agree that that should happen. We did not agree back in 2004. National opposed that at the time, most vociferously. But everyone in this Parliament now agrees that there should be proper recognition of continuing customary interests in the foreshore and seabed that have not been extinguished through history. Court processes, though, make sure that all relevant interests are taken into account, because if we under-recognise something, we are actually poking a stick in the eye of the Māori claimant. Many Māori claim that that is the effect of this legislation. Conversely, if we go too far and recognise a customary interest that under common law would have been found to have been extinguished, we are actually abrogating a public right in favour of a private right in respect of that section of Māoridom. The courts are the ones that are best placed to make that determination.

Courts are well versed in ensuring that the interests of anyone who might be adversely affected are taken into account. They are well versed in protecting the property rights of Māoridom, or indeed any other group, against inappropriate confiscation. That has always been their central role. At times courts in New Zealand—and the old Ninety Mile Beach decision might be one of them—have got it wrong. Now that we have the court saying that there are extant interests and that they ought to be recognised, why do we think Parliament should take that over? The High Court has always been the guardian of Māori—well, not always. For the last two or three decades the High Court has been an effective guardian of Māori aspirations to property rights. Whether it be State-owned enterprise interests or whether it be, pursuant to Treaty settlement, assets being properly reserved to be available for Treaty settlements, the High Court and the Court of Appeal have guaranteed those rights to Māoridom. It actually has not been Parliament that has led that. I am somewhat ashamed to say that it has not been Parliament that has led that. It has been the courts that have led that. Parliament has sometimes given recognition to that and set up processes that have facilitated that, but it has not been Parliament that has been the primary guardian of those interests; it has been the courts. I think this legislation is wrong in saying that we—

Hon MARYAN STREET (Labour) : Speaking on Part 4 of the Marine and Coastal Area (Takutai Moana) Bill, which is named in a fairly anodyne way, “Administrative and miscellaneous matters”, I think the Minister in the chair, the Attorney-General, was correct in drawing to the House’s attention the actual import of this part of the legislation.

My colleague David Parker has teased out some of the legal implications of the process of recognising customary interests, which is addressed in this part. I will pick up on this issue, because we have a situation where it is possible for the recognition of customary rights to be made by an agreement, by the recognition of an order of the court, or through legislation, through an Act. I think this process is really problematic. The bit I think is problematic is the bit to do with recognition by agreement in clause 93 and following clauses.

It becomes problematic because an applicant group and the responsible Minister can enter into an agreement recognising a protected customary right or a customary marine title without reference to anybody else. That is problematic. If the agreement is effected through an Order in Council, then the Minister asserts that it is subject to parliamentary scrutiny. That process would have a huge impact on the work of the Regulations Review Committee and would politicise the committee in a way that is not helpful to the procedures of Parliament. The only way there would be parliamentary scrutiny of an Order in Council is through the Regulations Review Committee. The committee receives Orders in Council and regulations. Politicising the committee is not helpful to the machinery of either government or, more important, Parliament. I think it is an unhelpful provision.

I also draw attention to the Minister’s Supplementary Order Paper 207. As we know, this 73-page Supplementary Order Paper, which is about half the size of the original bill, includes changes to clauses 93 and 94 that relate to the agreements that are to be called recognition agreements and to how they are to be brought into effect. The difficulty is the lack of transparency around the process. These agreements are potentially backroom deals. They are potentially deals done in private that nobody has access to and that certainly the general public does not have access to. That process is not an advancement of lawmaking in this country. It is certainly not a desirable basis on which to settle this issue, which is fractious and complicated.

I draw the Committee’s attention to Labour’s amendment to clause 94, which puts recognition agreements, or the proposed agreements made under clause 93, under the auspices and the authority of the High Court, and states that unless the High Court can confirm by order that the requirements in other parts of the legislation are met, the proposed agreement can have no effect. So we send it back to the courts.

The cry from the Māori Party was that it did not have its day in court. Now the Māori Party is looking to support secret deals that will not have their day in court unless this legislation is amended.

HONE HARAWIRA (Independent—Te Tai Tokerau) : Tēnā koe, Mr Chairperson. Tēnā tātou katoa e te Whare.

Members of both National and the Māori Party have deliberately tried to disrupt the flow of my kōrero, particularly during Part 3 of this Marine and Coastal Area (Takutai Moana) Bill. As we turn to Part 4, I look to their being perhaps a little more understanding and accepting of the fact that the issues that I raise during this debate, I do not raise because of any personal animosity towards them, but because of a genuine and widely held belief that this bill is not in the best interests of the Māori people, the Māori Party, or, indeed, Parliament itself.

As I turn to discuss Part 4 I pledge not to raise internal Māori Party caucus issues, nor to personalise the relationship between members of the Māori Party caucus and Ministers of the National Government, because this debate should not be about what one person may or may not have said to another in the privacy of a caucus meeting, nor should it be about the relationship between MPs in this House, even though such unsubstantiated trivialities were levelled against me during the debate on Part 3 of this bill last night. This debate should be about the principles underpinning the legislation the Committee is discussing.

As I turn to Part 4 I will try to focus, as I have done in all previous speaking opportunities during the debate, on the issues highlighted by the bill and on the public statements of relevant players in the development of the legislation, because Māori people deserve to know exactly how they will be affected by the decisions of the parties and persons who are promoting the bill. Because I am a member of Parliament elected to represent the specific interests of Māori, it is that particular area that I intend to focus my comments on.

I will begin my contribution to the debate by asking whether the Māori Party knows that the legally prescribed detail found in clauses 94 to 97 of this bill, and other legislation like it in the field of Treaty settlements, and in the oversight, the field of governance, and management of natural resources is a dangerous turn for Māori by forcing us into the legal environment whereby the value of traditional Māori principles or kaupapa Māori will be determined and legal precedents and benchmarks will be established that will impact on those principles for ever more. Does the Māori Party realise that allowing the courtrooms to become the battleground for determining the rightness, or otherwise, of kaupapa Māori, as noted in various clauses found in Part 4 of this bill, is detrimental to the principles themselves and to the world view they represent? Will that make the Māori Party reconsider the position it announced the other day that “This bill is in the House on our initiative. Make no bones … this is a Maori Party bill … We are pleased to stand here in support of this bill.”?

Does the Māori Party realise that by so doing, it is sanctioning the legal capture of kaupapa Māori as found in this bill, thereby limiting the effectiveness of those principles by tying them to legal concepts that are derived from a society that over time has developed into the resource-exploiting, consumer-dominated society we see today—a society that in many ways is in conflict with the Māori world view that kaupapa Māori is based on? Will the Māori Party, when it realises what it has done, think about withdrawing its view that “This bill is in the House on our initiative … this is a Maori Party bill.”?

Does the Māori Party realise that by giving its support to clauses 97 to 103 of Part 4 of this bill it is endorsing the Government’s attempts to codify the principles I have already mentioned in a way that our tūpuna would not agree with and our people will not accept, and that by supporting this bill the Māori Party is setting the stage for decades of litigation as Māori seek to reclaim ground that has been lost through the passage of the bill? If the Māori Party does realise the mistake it has made, will that help it to think about dumping the decision it announced the other day that this bill is a Māori Party bill?

Does the Māori Party realise that by giving its support to the many clauses noted under Part 4 of this bill it is setting the stage for the spectacular loss of Māori connection to the foreshore and seabed by forcing Māori into the High Court, where $100,000 is the price of an opening address, half a million dollars is the cost of progress, and unfortunate rulings are the order of the day? When the Māori Party realises that the bill forces Māori into the “Court of Great Cost and No Return”, might it not actually disown the position it announced the other day that “this is a Maori Party bill … We are pleased to stand here in support of this bill.”?

Does the Māori Party know that by its support of aspects of the law as outlined in specific clauses under Part 4 of this bill it may be signalling the end of all Treaty claims to the foreshore and seabed, because once the bill is passed, the foreshore and seabed will no longer be in Crown hands and will become common space, owned by no one, and therefore unable to be claimed by Māori? When the Māori Party realises that the bill will put an end to all Treaty claims to the foreshore and seabed, might not that finally make the Māori Party wake up and say that perhaps it made the wrong decision when it announced the other day that this is a Māori Party bill and that it is pleased to stand here in support of it?

Does the Māori Party know that its support for clause 105 of the bill, whereby Māori are required to prove customary title, is inconsistent with the position that is widely held by Māori throughout the country that Māori should not have to go to court to prove what the whole world already knows anyway: that Māori were here first? Why do we have to prove it? Will the Māori Party finally accept that the position that “this is a Maori Party bill … We are pleased to stand here in support of this bill.” is simply untenable to Māori and unacceptable to all those who support the principles of justice?

I began my speech by saying I hope that those in the Māori Party and National who have been heckling while I was speaking—but not today—understand and accept that the issues I raise during the debate on the bill I do not raise because of any personal animosity but because of a genuine and widely held belief that the bill is not in the best interests of the Māori people, the Māori Party, or, indeed, Parliament itself.

The arrogance of the Government in refusing to participate in this debate is widely noted by all New Zealanders. The decision by the Māori Party to adopt the same attitude is duly noted by all Māori, as well.

Tū te Ao Māori, tū te rangatiratanga, tū Motuhake. Tēnā tātou katoa.

[Long live Māoridom, sovereignty, and independence. Greetings to us all.]

Hon PAREKURA HOROMIA (Labour—Ikaroa-Rāwhiti) : Kia ora. E mihi kau ana ki te Minita kei te tae tata atu tātou ki te otinga o te ture nei. Nā te mea i roto i āku e taumahatia atu te mahi pēnei tonu, engari e pai ana kei te tae tata atu ki a tātou.

[Thank you. I congratulate the Minister as the completion of this bill draws near. I understand that this work is strenuous, but it us heartening that we are reaching the end.]

I will pick up on a couple of points in Part 4—firstly, the recognition of protected customary rights. Having listened to the summary of the Minister in the chair, the Attorney-General, I will make a few points and I hope that he takes note. Clause 92, “Recognition of protected customary rights and customary marine title”, states: “(1) A protected customary right or customary marine title relating to a specified part of the common marine and coastal area may be recognised by—(a) an agreement … or (b) an order of the Court …”. I think that one of the things we should say up front now concerns the cost in relation to that. I hope that we do not get into a continued litigious barrage where people just carry on sucking the pocket of the State, or, worse still, cost iwi and hapū outrageous sums of money for nought. So I hope for that, in the sense of this agreement.

In the Minister’s summary of issues relevant to the court, it was interesting to listen to his appraisal of why applications for a recognition order should go to the High Court. I think that in relation to what Mr Harawira said, it is quite right that we must be careful to ensure—and I was trying to say this in a different way yesterday—that the tikanga and tuku iho aspects need special expertise. I hope that the Minister will see it right and gather around him able advisers, or people who can ensure they have an understanding of tuku iho and aspects of tikanga that are relevant to Māori that they have inherited over generations, not just through their genealogical ties but also through living tikanga and tuku iho, through practising it and minding it. I hope the Minister will ensure that we have people who can decipher those aspects and make sure they do not get put asunder by over-endowed legalese, even though that is what creates legislation in this country. But there is a place for understanding—

Hon Trevor Mallard: I wouldn’t call the Minister over-endowed.

Hon PAREKURA HOROMIA: —the great Minister—and I hope that he makes sure of that. This is the serious part, where Māoridom would really struggle with any attempt to realign aspects of tikanga and tuku iho. It is a serious part; it is a very, very serious part. This issue was relevant to the usage of the Māori Appellate Court and the Māori Land Court, because it has been their everyday business. They are practised in it. It is like the Environment Court and the Family Court; they are practised in it. They understand the fundamentals, and they understand the nuances that drive their activity. So I say kia ora to the Minister.

When we get down to clause 95, “Registration and notification of agreement”, we see that in subclause (2)(c), a copy of the agreement has to be sent to “(i) the local authorities … (ii) the Minister of Conservation; and (iii) the Minister of Fisheries; and (iv) the Minister of Māori Affairs; and (v) any other person”—and Joe Bloggs—“who the chief executive considers is directly affected by the agreement.” That is quite interesting. I ask the Minister—hopefully—how he will ensure true partnership and cooperation between all of those agencies, and how he will ensure that the cooperation aligns with the real needs of iwi and whānau. I place that question with him. We know well enough about the internal differences that can happen in agencies, I tell the Minister. I hope there is some template or guidance to ensure that the situation does not end up like what I saw in my time in relation to agencies coming together, where it was all about their key performance indicators and outcomes. Those are right, but at the end of the day the last thing on the agencies’ radar is ensuring surety and positive development that will benefit Māori.

Under clause 101, “Service of application”, I was wondering, to put it quite crudely, whether there was financial assistance in this area, because a lot of this talk behoves the fact that there is a cost. I think the worst thing would be to punish iwi and hapū, or to distance them from the opportunity, because they have no pūtea. I need to be as crude as that, I tell the Minister; I hope that that need is taken account of, and that we do recognise that. Local authorities can put up our rates and get a bit more take, but I ask the Minister whether there is financial assistance. It is all too easy in preparing new legislation to forget that, and to say: “We will do this and we will do that; now you Māoris go and apply. You register, you do whatever else, and you build up your plans, but just carry on, run a raffle and whatever else, and raise the finance.” It is as crude as that; I hope that a very clear direction is sought by the Minister.

With regard to clause 105, “Burden of proof”—and this is an interesting one, I tell the Minister; I have heard him wax lyrical on this two or three times in other situations—quite certainly in this case it has to be about the iwi proving what they are claiming. That is reasonably straightforward. But as the Minister said, it is up to the Crown to disprove that, to put spokes in the wheel and try to distort it—not necessarily to undermine it—or to prove it is not as iwi claim. Again, apart from financial assistance, I think that a fair bit of expert help may be needed there. It is quite easy for people to get up and make a claim because they know things through tradition and whatever else, but at the end of the day, I tell the Minister, I hope that he recognises the need for financial assistance.

In clause 119, “Regulations for management of common marine and coastal area”, there is mention of the Governor-General. There will be a great new Governor-General. I mihi to the present Governor-General, who is a great man, and to this new bloke, this new tangata whenua, who will be wonderful, wonderful. It is great that he will have the duty and role to instigate parts of this legislation. This clause certainly is about the Governor-General acting, by Order in Council, on the recommendation of the Minister of Conservation—again, it is about partnerships. I ask how the partnerships are defined and ensured so that Māori will get a fair go. The member Tau Henare over there mortally wounded us yesterday by abusing us, and you know, it is really hard to take that sort of thing. We get it from Pākehās, we get it from the media, but to get it from our own kin, like Tau Henare, is very, very upsetting and undermining. I think it is outlandish.

Hon Tau Henare: What’s that, e Rōpū Reipa?

Hon PAREKURA HOROMIA: Te Rōpū Nāhinara—Pirimia Key—said: “National will look to abolish the Māori seats.”, and also said: “If the Government does not legislate to protect ownership of the foreshore for all New Zealanders, then we will put forward our own bill.” There is something very mysterious there. I mihi to the member for Te Tai Tonga in that other party, because, if he abolished the Māori seats—and the difference in the vote here is about three or four seats—this bill would not go through. At this late time, I challenge and plead with Māori Party members to change their vote, because National said in July 2003 that it would get rid of the Māori seats. National is waiting for Māori Party members to sanction this bill and get it through, and then it will get rid of their seats. Look, it is not too late—seriously, it is not too late. Those members should turn away, because that is what he said—

Hon Tau Henare: What does the agreement say?

Hon PAREKURA HOROMIA: What does the agreement say? In 2004 Dr Brash, who was the best friend of Mr Tau Henare—who used to stand by him on those “Iwi/Kiwi” placards and all that stuff; he used to rap it up—

Hon Darren Hughes: Kotahitanga!

Hon PAREKURA HOROMIA: That is it—Brash and “Trash”. They used to stand on the beach, yell out, and insult Māori. Dr Brash said: “We believe that there should be one law for all, that we are all New Zealanders with the same rights and obligations under the law. New Zealanders do not want to have separate titles and development rights for our beaches according to race.” Then Gerry Brownlee chastised us. It was Gerry Brownlee, who is doing a reasonable job in Christchurch, who said: “We do not favour a process that would give Māori a greater say than non-Māori in the management of these significant resources.” National has made its position on this clear, right from the start. “We believe our beaches and our lakes should belong to me.”—that is what Gerry said.

I plead with the Māori Party to understand what National said in 2003. National said that it would get rid of the Māori seats, so I am not too sure why Māori Party members are making the difference in passing this legislation, or why they are chastising the public and boasting that it is their bill.

Hon JOHN BOSCAWEN (Deputy Leader—ACT) : 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).

RAHUI KATENE (Māori Party—Te Tai Tonga) : I am grateful for the opportunity to speak on Part 4 of the Marine and Coastal Area (Takutai Moana) Bill. I want to speak particularly on clauses 97 and 105. Clause 97, as we know, allows the High Court to refer a question of tikanga to the Māori Appellate Court for its opinion or to obtain the advice of a pūkenga. The concept of pūkenga comes, of course, from the Māori Land Court and the Māori Appellate Court, where the court seeks the assistance of those experts who have experience and knowledge of tikanga Māori.

It really saddened me to hear the nature of the kōrero from the ACT Party around tikanga. One of the major achievements the Māori Party has secured in this bill has been to ensure that tikanga permeates the legislation. In that way we see the value accorded to Māori customary values and practices being reflected right throughout. I am mindful of the challenge left by former MP and esteemed Māori leader Tā Apirana Ngata and his much quoted words: “E tipu e rea”. In those words, Tā Apirana encouraged Māori to grasp the tools of the Pākehā world while at the same time cherish ngā taonga a o tūpuna Māori—the treasures of our ancestors. It was, if one likes, the notion of promoting excellence in both worlds.

I have to wonder whether the ACT Party has grasped the notion of living in a Treaty-based nation in which partnership means to cherish the foundations of the two Treaty partners, working in two worlds, Aotearoa New Zealand. A commitment to nationhood, driven from the Treaty, would mean that this House would never again be subjected to the cultural assault of tikanga being described in the terms of Alice in Wonderland.

For the sake of generations to come, I want to make it explicitly clear that we in the Māori Party understand that tikanga is consistent with kaupapa Māori—kaupapa such as kotahitanga, rangatiratanga, and whanaungatanga. Tikanga are our practices, that which is tika—true and accurate. Tikanga are derived from kaupapa Māori, the foundation of Māori culture, and the basis of Māori world views.

Ironically, the reference to Alice in Wonderland was made during a kōrero on the preamble—a preamble that, monumentally, introduces for the first time into any public environment or into any resource management - related legislation the kaupapa of manaakitanga and the tikanga that are derived from it. In Ngāi Tahu, for example, the concept of manaakitanga is the tikanga that tangata whenua practise towards manuhiri, and it enabled whalers from foreign shores to remain on the takutai and set up whaling stations.

The tikanga surrounding manaakitanga is such that the more hospitality that tangata whenua display, the more mana they demonstrably possess. Ngāi Tahu has great mana, as we have seen with their response to recent events that have struck the people of their rohe. So, as many people of great mana have done throughout New Zealand’s history, they gave without hesitation.

Manaakitanga, as mana in action, works only when the system of reciprocity on which it is based is understood. When this legislation states that it should be enacted to reflect the principle of manaakitanga, we are not entering a virtual rabbit-hole of unknown qualities or quantities. We know exactly what it is that we seek, and that is to restore the balance of mana and to uphold tikanga.

Although this bill does not propose mana motuhake, as some may wish to see, it does propose a relationship in keeping with those tikanga derived from the kaupapa of kāwanatanga and rangatiratanga. There is great mana in this. In order for the fruits of this exchange of mana to fully materialise, it is imperative that local and regional authorities step up to the mark in their exercise of kāwanatanga, giving mana to those expressions of rangatiratanga by the kaitiaki of takutai moana, such as the planning documents.

Although the misguided few look to role models such as Alice in Wonderland, I know there are those amongst us who look to our own Pacific role models—figures such as Māui, who looked beyond the horizon, using the wisdom of his ancestors and the boldness of his youth to seek change in the world.

The other key clause I want to refer to in Part 4 is clause 105. This is an extremely significant clause that has attracted great interest from those who have taken the time to read the bill. I do have to say in passing that it is hard to tolerate some of the statements I have heard in the public arena from people, including some MPs, unfortunately, who have not read the bill yet claim that they oppose it. I do not understand the logic whereby someone can be opposed to something but not actually know what they are opposing.

I would like to read from clause 105(3), set out on Supplementary Order Paper 207, which states: “In the case of every application for a recognition order, it is presumed, in the absence of proof to the contrary, that a customary interest has not been extinguished.” Clause 105, the burden of proof clause, is a major initiative, and I have to say it is a major initiative brought about by the member from the north.

The 2004 Act required Māori to prove that extinguishment of customary title had not occurred. Proving something had not occurred over a 170-year period was a significant burden on Māori. The takutai moana bill places that burden on the Crown, where it should be. If the Crown cannot prove extinguishment, then customary title will be recognised, provided the other elements of the test are met. Clause 105(2), set out on Supplementary Order Paper 207, provides that for the recognition of customary marine title “the applicant group must prove that the specified area—(a) is held in accordance with tikanga; and (b) has been used and occupied by the applicant group, either (i) from 1840 to the present day; or (ii) from the time of a customary transfer to the present day.”

Clause 105(3), as I have read out, provides that it is presumed, in the absence of proof to the contrary, that a customary interest has not been extinguished. The amendment is required, as the Government’s intention regarding burden of proof was unclear. The clause as redrafted is explicit that claimant groups must prove only the positive elements of the test—for example, the group has held the area or customary right has been exercised since 1840, in accordance with tikanga. This means the Crown is responsible for proving that the applicant group’s use and occupation of the area has not been exclusive, that there has been a substantial interruption to the group’s occupation of the area, or that there has been extinguishment at law.

The intention of clause 105 is to make it clear where the burden of proof lies for the evidence relating to the test for protected customary rights and customary marine title. I want to really highlight this initiative. It is something that I believe establishes a very clear precedent for working in a way in which tangata whenua and the Crown operate as Treaty partners. Clause 105 is a very important issue. It picks up what the Court of Appeal said in the Ngāti Apa case—that the burden of extinguishment lies on the person or body that seeks to have it extinguished; in this case, the Crown. The Crown has the burden of extinguishment, and that is where it should lie, and the advice I have received from iwi is that that is a just and proper thing to do. Kia ora.

KELVIN DAVIS (Labour) : Earlier we heard Paul Quinn say that David Parker was talking gobbledegook. How appropriate; there is no member in the Chamber who is more qualified to recognise gobbledegook when he hears it. Paul Quinn is the member of the Māori Affairs Committee who takes 3½ minutes to ask a question that requires a yes or no answer, and in the course of that 3½ minutes he will answer the question three times himself, and then he will still contradict himself.

Hon Trevor Mallard: I seek the leave of the Committee for all ACT amendments on this part to be taken as one question.

The CHAIRPERSON (Hon Rick Barker): Leave is sought for that. Is there any objection? Objection is taken.

Hon John Boscawen: I raise a point of order, Mr Chairperson. I would like to express my disgust that that motion was moved as another Labour member of Parliament asked me to leave the Chamber in order to have a private discussion.

The CHAIRPERSON (Hon Rick Barker): That is not a point of order.

KELVIN DAVIS: As I was saying about Paul Quinn, there is no better member of Parliament qualified to recognise gobbledegook when he hears it, and the glazed and dazed and tired expressions on the faces of members in the Chamber are not because they were up until midnight last night voting, they are because we are still trying to figure out the last question that Paul Quinn asked in the Māori Affairs Committee. So I thank Mr Quinn for his contribution to the debate on the Marine and Coastal Area (Takutai Moana) Bill. It has been going on for 3 days and that was the most intelligent comment he has made so far.

I come to the application for recognition orders as set out in Part 4, which is about applying for recognition of customary rights. The more I think about what a customary right is, the more irrelevant it seems to this whole bill. There are very few examples of what a customary right is other than the launching of waka and the collection of hāngi stones. Where I come from up north we collect hāngi stones on the land; we do not collect hāngi stones out at sea. I come from the Bay of Islands, where there are a lot of old volcanoes, so there is a lot of scoria and we certainly do not need to go diving for hāngi stones in order to collect them. Regarding the launching of waka, we take our boats out all the time every weekend, so why is it that we would need to go through the process of applying to be able to launch our boats? It would take time, it would take effort, and it would take money—I would say—to make an application to launch our boats and to collect hāngi stones if we wanted to go diving for them. Diving for hāngi stones would certainly do away with the need for lead weights on one’s diving belt; one would just need to hold on to the hāngi stones.

The process for going through an application is that people have to come up with the contents of an application for customary rights, which in itself is a process that I will go through with members. The original Marine and Coastal Area (Takutai Moana) Bill includes clause 100, “Registry for filing application”, although that is omitted by Supplementary Order Paper 207, and clause 101, “Service of application”. Clause 101 states: “The applicant group applying for a recognition order must serve the application on—(a) the local authorities that have statutory functions in the area of the common marine and coastal area … and—(b) any local authority that has statutory functions in the area adjacent to the area of the common marine and coastal area … and—(c) the Solicitor-General”—the words “on behalf of the Attorney-General” are inserted by Supplementary Order Paper 207. What is the Māori Party thinking about, wanting to put our people through this? I have gone through only half of the process just to launch a waka, or to launch a 14-foot aluminium dinghy to go fishing.

The next part of the process is set out in clause 102, “Public notice of application, which states: “(1) The application group applying for a recognition order must give public notice of the application. (2) The public notice must include, as a minimum,—(a) the name of the applicant group and its description as a hapū or iwi, … and (b) a brief description of the application, … and (c) a description of the particular area of the common marine and coastal area … (e) in the case of an application for recognition of a protected customary right, a description of the right; and (f) a date that complies with subsection (3) … and (g) the registry of the Court …”. This is a nonsense process, just so that hapū and iwi and applicant groups can go to get the hāngi stones they can get on land and launch waka. I cannot think of any other customary rights that one would need it for. Last night I mentioned getting pipis and diving for scallops, and I was corrected by my colleagues who told me that is all covered under the Fisheries Act, so we do not have to worry about that.

CHRIS TREMAIN (Senior Whip—National) : I move, That the question be now put.

KELVIN DAVIS (Labour) : The next part of the application process set out in Part 4 of the Marine and Coastal Area (Takutai Moana) Bill is that the applicant has to give notice of who may appear on an application for recognition order, then there are the evidence and burden of proof parts of the process. Supplementary Order Paper 207 suggests that clause 105, “Burden of proof”, be substituted with “In the case of the application for recognition of protected customary rights in a specified area of the common marine and coastal area, the applicant group must prove that the protected customary right has been exercised in the specific area; and continues to be exercised by that group in the same area in accordance with tikanga.”

The Māori Party members say that applicant groups—Māori iwi, hapū, and whānau—have to prove that they have been launching waka and collecting hāngī stones in the area in accordance with tikanga. My question to the Māori Party is why should applicant groups—our whānau—have to prove that stuff and go through an application process to prove a customary right to do what we as Māori just do anyway? In my belief, the application process is a total nonsense.

Clause 99 defines the contents of an application. Applicants have to “state whether it is an application for a recognition of a protected customary right, or of customary marine title,”. If it is an application for recognition of a protected customary right, applicants have to describe the applicant group and identify the particular area. Why should Māori have to identity the particular area where they want to launch their waka from?

Applicants then have to state the grounds on which the application is made and name a person to be the holder of the order. Applicants actually have to name someone to be a holder of an order for whānau to go and launch a waka off a beach somewhere. It is a nonsense. Applicants have to specify contact details for the group and for the person named to hold the order. They have to give the contact details—people’s phone numbers, email addresses, cellphone numbers, and addresses—of everyone who wants to go and launch their wakas or gather their hāngī stones out at sea. An application has to be supported by an affidavit. Applicants actually have to make a statement backing up why they want to have recognition of this right to go and collect their hāngī stones.

I feel that this whole part about recognition of a customary right is a nonsense. I just do not see why Māori have to go through this whole process to draw up an application, take it to court, register it, and do whatever they have to do, just to ask for the right to do what we have always done anyway.

That process is what the Māori Party will put our people through. Māori Party members sit there and say they are proud to put this burden of work on to our people for no reason. It is ridiculous. It is gobbledegook, as Paul Quinn says. It is gobbledegook. It is nonsense, and Rahui Katene is actually standing up and justifying it when it is just absolutely ridiculous. This issue is what our people marched for in 2004. As I said last night, they were not led on a hīkoi; they have been led up the garden path. They have had the wool pulled over their eyes by the Māori Party that this legislation is something good for us as a people. It is just an absolute joke. It is a nonsense. To quote the learned member across the Chamber, it is gobbledegook.

Hon Trevor Mallard: He’s not learned.

KELVIN DAVIS: OK; that was excessive use of hyperbole there, I agree. I will wait for Paul Quinn to jump to his feet and to actually take a call and contribute to this whole debate, because so far he and the Hon Tau Henare have basically been barrelling out and chastising everyone else who stands up to contribute. People on this side of the Chamber have made rich and comprehensive contributions on the bill, and those two members have just sat over there and all they have done is throw bricks at everyone else who stands up.

PAUL QUINN (National) : I move, That the question be now put.

The CHAIRPERSON (Lindsay Tisch): The next amendment in Hilary Calvert’s name is to clause 93(2) to omit “6” and substitute “5”. This is out of order as being inconsistent with a previous decision of the Committee.

• The question was put that the following amendment in the name of Hilary Calvert to clause 93 be agreed to:

to omit from subclause (2) “years” and substitute “days”.

The CHAIRPERSON (Lindsay Tisch): The next amendment in Hilary Calvert’s name is to clause 93(2), to omit “years” and substitute “weeks”. This amendment is out of order as being inconsistent with a previous decision of the Committee.

• The question was put that the following amendments in the name of Hilary Calvert to clause 93(2) be agreed to:

to omit “responsible Minister” and substitute “Minister of Statistics”; and

to omit “title” and substitute “title or wāhi tapu”.

The CHAIRPERSON (Lindsay Tisch): Further amendments in the name of Hilary Calvert to clause 93(3) to omit “Crown” in each place where it appears and substitute “responsible Minister” and to omit “Crown” in the second place where it appears and substitute “applicant group” are out of order as being inconsistent with a previous decision. A further amendment in the name of Hilary Calvert to clause 93(4) to omit “Crown” and substitute “Minister of Science and Innovation” is also out of order as being inconsistent with a previous decision.

• The question was put that the following amendment in the name of Hilary Calvert to clause 93 be agreed to:

to omit from subclause 4(a) “met” and substitute “met, and a commitment is made by the applicant group to not prevent free access for individuals and groups of the public”.

The CHAIRPERSON (Lindsay Tisch): The amendment in the name of Hilary Calvert to clause 93(4)(b), to omit “met” and substitute “met, and a commitment is made by the applicant group to not prevent free access for individuals and groups of the public”, is out of order as being inconsistent with a previous decision.

• The question was put that the following amendment in the name of Hilary Calvert to clause 93 be agreed to:

to add the following subclause:

(5)The responsible Minister, upon receiving application from an applicant group to seek an agreement recognising a protected customary right or customary marine title, must direct the chief executive to, without delay, notify of this application in the Gazette.

The CHAIRPERSON (Lindsay Tisch): We have an amendment in the name of the Hon David Parker to omit and substitute clause 94. This is out of order as being inconsistent with a previous decision. Further amendments in the name of Hilary Calvert to omit clauses 94 and 95 are out of order as being inconsistent with a previous decision.

• The question was put that the following amendment in the name of Hilary Calvert to clause 96 be agreed to:

to omit from subclause (5) “this section limits section 10 of the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992” and substitute “this Act shall override this section”.

The CHAIRPERSON (Lindsay Tisch): The amendment in the name of Hilary Calvert to clause 97(2) to omit “is binding” and substitute “is not binding” is out of order as being inconsistent with the principles and objects of the bill.

• The question was put that the following amendment in the name of Hilary Calvert to clause 98 be agreed to:

to omit from subclause (2) “6” and substitute “10”.

The CHAIRPERSON (Lindsay Tisch): A further Hilary Calvert amendment to clause 98(2) to omit “6” and substitute “7” is out of order as being inconsistent with a previous decision. A further Hilary Calvert amendment to omit clause 100 is out of order as being inconsistent with a previous decision.

• The question was put that the following amendment in the name of Hilary Calvert to clause 101 be agreed to:

to omit from paragraph (c) “and” and substitute “and Minister of Maori Affairs and”.

The CHAIRPERSON (Lindsay Tisch): A Hilary Calvert amendment to clause 102(2)(e), to omit “person” and substitute “person or group”, is out of order as being inconsistent with a previous decision. A further amendment in the name of Hilary Calvert to clause 102(2)(f), to omit “date” and substitute “proposed date”, is out of order.

• The question was put that the following amendment in the name of Hilary Calvert to clause 102 be agreed to:

to omit from subclause (3) “20” and substitute “10”.

The CHAIRPERSON (Lindsay Tisch): A further Hilary Calvert amendment to clause 102(3) to omit “days” and substitute “minutes” is out of order as being inconsistent with a previous decision. A further Hilary Calvert amendment to the heading of clause 103, to omit “Who” and substitute “Anyone”, is out of order as not being a serious amendment.

• The question was put that the following amendments in the name of Hilary Calvert to clause 103 be agreed to:

to omit “interested”; and

to omit “by the due date” and substitute “within 7 days of their proposed appearance”.

The CHAIRPERSON (Lindsay Tisch): A further Hilary Calvert amendment to clause 103 to omit “by the due date” and substitute “within 14 days of their proposed appearance” is out of order as being inconsistent with a previous decision. A further Hilary Calvert amendment to omit clause 105 is out of order as being inconsistent with a previous decision.

• The question was put that the following amendments in the name of Hilary Calvert to clause 106 be agreed to:

to omit subclause (1);

to add to subclause (3) the following paragraph:

(e)has any other reasonable reason to do so.; and

to omit from subclause (4) “application” and substitute “application for the same or any other reason”.

The CHAIRPERSON (Lindsay Tisch): The further Hilary Calvert amendments to omit clauses 108, 109, 110, and 111(1) to (3) are out of order as being inconsistent with a previous decision. A further Hilary Calvert amendment to clause 111(4), to omit “only by—” and substitute “by any person or group.”, is out of order as being inconsistent with a previous decision.

• The question was put that the following amendments in the name of Hilary Calvert to clause 111 be agreed to:

to omit subclause (4)(a);

to omit from subclause (4)(b) “, if the holder—”;

to omit subclause (4)(b)(i);

to omit subclause (4)(b)(ii);

to omit subclause (5)(a);

to omit from subclause (5)(b) “group” and substitute “group and relevant local authority”; and

to omit subclause (5)(c).

The CHAIRPERSON (Lindsay Tisch): We have an amendment in the name of Hilary Calvert to omit clause 113. This is out of order as being inconsistent with a previous decision. A further amendment in the name of Hilary Calvert to omit clause 114 is out of order as being inconsistent with a previous decision.

• The question was put that the following amendments in the name of Hilary Calvert to clause 115 be agreed to:

to omit the heading;

to omit from subclause (1) “safe”;

to omit from subclause (2) “may be kept” and substitute “must be kept”;

to omit from subclause (2)(a) “electromagnetic,”;

to omit from subclause (2)(a) “or process”;

to omit from subclause (2)(b) “a” and substitute “a printed”;

to omit from subclause (2)(c) “other” and substitute “any other”;

to omit from subclause (2)(c) “reproducing”; and

to omit from subclause (2)(d) “systems, or means” and substitute “or systems”.

The CHAIRPERSON (Lindsay Tisch): A further amendment in the name of Hilary Calvert to clause 119(1)(e) is to omit “$5,000” and substitute “$3,000”. This is out of order as being inconsistent with a previous decision.

• The question was put that the following amendments in the name of Hilary Calvert to clause 119 be agreed to:

to omit subclause (1)(f);

to omit from subclause (2) “of Conservation” and substitute “for Ethnic Affairs”;

to omit subclause (2)(a); and

to omit subclause (2)(b).

The CHAIRPERSON (Lindsay Tisch): We have Hilary Calvert’s amendments to insert new clause 120(1)(c)(i), to substitute other categories in the definition of “aircraft”. These are out of order as being inconsistent with a previous decision.

• The question was put that the following amendments in the name of Hilary Calvert to clause 120(1)(d) be agreed to:

to omit “not exceeding” and substitute “exceeding”; and

to omit “$500” and substitute “$5”.

• Amendments not agreed to.

The CHAIRPERSON (Lindsay Tisch): The next Hilary Calvert amendment to clause 120(1)(d), to omit “$500” and substitute “$250”, and the amendment to clause120(2) to omit “of Conservation” and substitute “for Food Safety” are ruled out of order.

• The question was put that the following amendments in the name of Hilary Calvert to clause 120(2) be agreed to:

to omit “unless satisfied that—”

to omit paragraph (a); and

to omit paragraph (b).

The CHAIRPERSON (Lindsay Tisch): We have three typescript amendments in the name of Hilary Calvert to clause 123(1)(e) to omit “person” and substitute “person or group”. These are out of order as being inconsistent with a previous decision.

• The question was put that the following amendments in the name of Hilary Calvert to clause 123 be agreed to:

to omit from subclause (1)(e) “electronic mail,”;

to omit from subclause (2) “post or registered post” and substitute “registered post”; and

to omit from subclause (2) “given or received” and substitute “received”.

The CHAIRPERSON (Lindsay Tisch): Hilary Calvert’s amendment to clause 123(2) to omit “7” and substitute “2” is out of order as being inconsistent with a previous decision.

• The question was put that the following amendment in the name of Hilary Calvert to clause 123 be agreed to:

to omit from subclause (2) “days” and substitute “hours”.

The CHAIRPERSON (Lindsay Tisch): Hilary Calvert’s amendments to clause 123(2) to omit “days” and substitute “minutes” and to omit “after the date” and substitute “on the date” are out of order as being inconsistent with a previous decision. [Interruption] Votes are taken in silence.

• The question was put that the following amendment in the name of Hilary Calvert to clause 123 be agreed to:

to omit from subclause (2) “to whom” and substitute “or group to whom”.

The CHAIRPERSON (Lindsay Tisch): We now come to the schedules. Before I put the vote on schedule 1, several people have lodged amendments to omit it. The proper course is to simply vote against this schedule. Are we aware of that? I will say that again. Several people have lodged amendments to omit schedule 1. The proper course is to simply vote against this schedule.

• Schedule 1 not agreed to.

The CHAIRPERSON (Lindsay Tisch): We have an amendment in the name of Metiria Turei to omit schedule 1 as set out on Supplementary Order Paper 206. This is out of order as being a direct negative. We have a further amendment in the name of the Hon David Parker to omit this schedule. It is now out of order.

The CHAIRPERSON (Lindsay Tisch): We have a typescript amendment in the name of the Hon David Parker to omit this schedule. This is out of order.

The CHAIRPERSON (Lindsay Tisch): We have an amendment in the name of Metiria Turei set out on Supplementary Order Paper 213 to omit new schedule 2A as set out on Supplementary Order Paper 207. This is out of order.

Hon CHRISTOPHER FINLAYSON (Attorney-General) : The Marine and Coastal Area (Takutai Moana) Bill has a dual-language title, and may be cited by either the English or Māori title.

Hon MITA RIRINUI (Labour) : Kāti, kia ora tātou kei roto i te Whare. Kai te Heamana, kai te Minita, ngā mema katoa, tēnā koutou, tēnā tātou katoa.

Before I touch on the title of the Marine and Coastal Area (Takutai Moana) Bill, I will take this brief opportunity to acknowledge the quality of the information that the Minister has provided about this bill in the Committee stage, although it is very difficult for members on this side of the Chamber to accept a lot of his explanations in terms of various parts of the bill. However, that is the Government’s position, and it is to be respected.

What has not been acknowledged in the Chamber throughout this debate is the mistake the Māori Party has made in taking ownership over this particular bill. It is very important that in the closing stages of the Committee stage I stand in this Chamber and make comment about that. It is our premise that there is no way we can camouflage the issues in this bill by adding a Māori flavour to the title. The addition of “takutai moana” to the Foreshore and Seabed Act will just not sell it amongst Māori communities, regardless of how the Māori Party members who have spoken to the bill have tried to sell it to this House, and to the rest of Māoridom.

The Labour Opposition believes that the more appropriate title for this bill would be the “Marine and Coastal Area (Foreshore and Seabed) Re-enactment Bill”. There is absolutely nothing wrong with that. I myself, the man who is standing in this Chamber and speaking on behalf of the central North Island, from the rohe of Mātaatua, Te Arawa, and Tākitimu, would call it the “Te Ao Hurihuri Bill”—in other words, the “Backward Flip Bill”, the “Return to the Past Bill”, because that is exactly what this bill is attempting to do. It stagnates Māori customary rights as of 1840, and by and large allows the authority of the Crown, or of New Zealand, to flourish and grow. That is why, when I was asked the question earlier during the couple of days we have been debating this bill: “What’s the name of that bill, again?”, I said: “Well, giving it a Māori flavour just doesn’t do it for me, because to me, kei te hoki whakamuri tātou [we are going backwards]—in other words, the “Te Ao Hurihuri Bill”; the one that takes us back into the Stone Age.

A lot of examples have been given by various speakers in this Chamber about where we think the Māori Party has gone wrong but is refusing to acknowledge it. We are not here to speak about Part 4, but certainly some members of the Māori Party, who do not admit to having or acknowledge they have law degrees, have not read this bill properly, and therefore do not understand the implications. As a result, they do not wish to stand in this Chamber and affirm that they have got it right, and maybe Hone Harawira is correct in challenging them on those particular points.

For example, let us take the burden of proof. The burden of proof still rests on Māoridom, no matter how it is worded in this bill. Yes, those rights that have not been extinguished by the Crown will remain, but the Crown can prove that over 75 percent of the coastline of Aotearoa is not subject to protected customary rights because those rights have been extinguished. I will give the Committee an example. In Tauranga, in the Bay of Plenty, Ngāti Rangi, Ngāti Ranginui, and Ngāti Pūkenga had our customary rights extinguished in the period between 1840 and 1865 by way of raupatu, and the Crown can prove that. Actually, we are having a difficult job proving that it did not do that. The rest of the country accepts it, and previous Governments have accepted it, but as we are negotiating our way through these issues we are having difficulty in proving that the Crown acted illegally in our interests.

So when a Māori Party member stands in the House and says the burden of proof is on the Crown, I have to tell that member to get his or her head out of the sand and come back to earth. The Crown has no difficulty whatsoever in proving that rights in certain areas of the country have been extinguished. It is the same with Te Arawa and the return of the Te Arawa lakes. Te Arawa had to prove that they not only had had ownership pre-1992 but also had had ownership in the period between 1840 and whenever it was. It was a very difficult and costly exercise for them to go through. I remind Māori Party members—and Hone Harawira, whom they refuse to name, has attempted to tell them—that they have got it wrong. When they say to make no bones about the fact that this bill is their bill, well, I hope they can stand up without conscience in the Māori community and say: “Yes, we still take ownership of it.”, even though those Māori communities will have to prove they have a customary interest in their particular areas.

Maybe the member Rahui Katene will tell the people from where she comes, at the top of the South Island, that they do not have to prove they had a customary right, and that they do not have to prove that those customary rights were extinguished—because they were. They were. The Crown is currently in negotiations with her people now to compensate them for the loss of those rights. What is it about that that those people do not understand? Members can put all the nice language and legal jargon they like into these bills, but Māori still have to front up in court to prove their case. What do those members not understand about that? The Crown has no difficulty in turning up to prove that those rights have been extinguished; sometimes these debates can get up to a level where Māori can practically lose interest in them.

I think my colleague Kelvin Davis gave some examples of how this issue will affect Māori, as the rubber hits the road in their communities. Why would any Māori group make an application for the recognition of customary rights to collect hāngi stones? Why would they? I had an issue with that in 2004, because it was raised then. Why would any Māori make an application to the High Court for the recognition of customary rights so they can launch a waka? I had an issue with that in 2004; I have an issue with that now. Māori Party members had an issue with it back then, but they have refused to admit to that now. Those members should show some consistency. They should be true to their beliefs, and stand up and speak up. They should not do backward flips and try to convince our people that this bill is a good thing, because it is not.

There are actually no changes in the bill. There are changes in the words, but the substance of the bill, in terms of the ability of Māori to prove customary rights—I will use those words again: prove customary rights—means that that is still very, very difficult. The Court of Appeal said that, so what is it about that that those members do not understand? The entire South Island was subject to confiscation, and all those rights were lost. Ngāi Tahu have spent decades on trying to have those rights reinstated. What is it about the member from Te Tai Tonga, and her legal background, that she cannot accept or understand that? I have people in the Mātaatua and Te Arawa rohe who have not had the privilege or the type of education that that member has had—in fact, they have struggled with literacy—but they can work that one out. Every time they go to the beach to get pipis, they know that between them they can get one bucket. They know that when they go and dive for kina, they can get one bag. They understand that, even though the codification of those rights totally loses them. That is why I say to the member that when Te Ao Māori is codified, Te Ao Māori is removed from the Māori people. Members need to understand that. When tikanga is codified, it does not matter who makes the decision or who gives the advice; that is the legal precedent, and that is the end of it. What do they not understand about that? I am concerned that that member stands in this Chamber and tries to pull the wool over our eyes, and the eyes of the rest of Māoridom, in saying this bill is good for them, when Te Ao Māori, as they know, it is slowly disappearing. What is it about that that she will not accept? I had difficulty accepting her arguments in the Chamber this afternoon.

I do not often agree with Hone Harawira. Actually, I think he is a bit flighty, and I have told him that many times. But he touched all the right buttons today, and I have difficulty disproving him.

As the curtain closes on this particular debate I wish I had a lot more time to speak, because there are other members I would like to address, such as my whanaunga over there from Ngāti Awa. What will my cousin say to them when he goes back and tells them he voted for this bill? Will he say there is nothing in it for Māori, but that they will get to go to court? Will he say that it will cost $200,000, plus their lawyers’ fees, but they will come away with nothing, because they will not be able to meet the test of the burden of proof? As to all those rights that they may say the Crown confiscated—well, the Crown has plenty of evidence to prove that those rights were extinguished.

That is my contribution to this debate. I am very disappointed. I have sat quietly and listened to members make their contributions, but I am very disappointed at the level of ignorance that I have heard in the Chamber today. This is a very simple issue. This is about us, about Māori people. This is about our customary rights, but the codification of those rights changes them. There is nothing wrong with going to court and arguing our case, but when tikanga, manaakitanga, and all those areas that we hold valuable are codified, then they are no longer ours. Kia ora.

PAUL QUINN (National) : Kia ora tātou. It is a great pleasure to be able to record for Hansard that National has fought the good battle and won, along with our coalition partner, the Māori Party. It has given us support and shown us leadership on this particular issue, which clearly is a very important issue to this nation. The Māori Party has been the shining light in this discussion, in this conversation, in this debate. I acknowledge both the leadership and the members of the Māori Party for showing the way and finding the solution that will last until Parekura and I are well gone from this earth to the gods in heaven.

I also at this stage comment on and address the title of the Marine and Coastal Area (Takutai Moana) Bill. I was going to start my contribution by reflecting on the civility that has descended on this Chamber in this debate today. But unfortunately my taina, my whanaunga from the last speech, Mita Ririnui, has started to take it to the line. He used words like “ignorance” and so on. It was uncalled for. We do not need those words in the concluding stages of this debate. I will set that aside as a little blip from an inexperienced young lad, my younger relation, who is not able to show leadership, as I say.

I will talk to the title of this bill and the commencement date. In my view, the basic difference between the position of the Government and that of the major opposition—namely, the Labour Party—is around issues of codification. I know my good friend and colleague David Parker, in his contribution to the previous part of this debate, made reference to the cost of negotiating settlements as opposed to going to court, but I assure my friend that I have been through both systems. I have been through a court process and I have been through a negotiated process. Let me tell members that the most tortuous process is the court process, without a doubt. Without a doubt, the most tortuous process is the court process.

In addressing the commencement of the codifications we have put into the this bill, I will read a passage from the Chief Justice in her contribution to the finding in the Ngāti Apa case. It goes to the heart of the reasons why we need codification. This is what Sian Elias wrote: “I agree with Keith and Anderson JJ and Tipping J that In Re the Ninety-Mile Beach was wrong in law and should not be followed. In Re the Ninety-Mile Beach followed the discredited authority of Wi Parata v Bishop of Wellington … which was rejected by the Privy Council in Nireaha Tamaki v Baker”. Those cases date right back.

The point I am making is that if we follow Labour’s solution and leave it to the courts, I have no doubt at all that we will end up down the track, in another 20 or 30 years, with a new, ground-breaking decision by a court. In the same way that the Ngāti Apa case turned previous case law on its head, it will do exactly the same. I have no doubt that down the track it will lead to a new decision that will take us in a completely different direction. The proposed Labour solution of letting the court decide provides no certainty and no predictability for the people today.

That is what people want. They want to be able to go to sleep at night knowing that the foreshore and seabed is safe, that they have free access, and that they can actually go and recreate. That is what they want to know. In this bill, by codifying, we have been able to place a fence around the issues that the courts should focus on. That is all we have done.

Everyone talks about it. My friends from ACT—such as John Boscawen, whom I must admire for his tenacity, although I say to him to let us just be friends with regard to his contribution—keep talking about Māori definitions. If they read the bill they would find that almost all the Māori definitions except for one are actually from other legislation, where case law has already been developed in relation to those terms. The Resource Management Act defines, and has case law developed in relation to, most of the Māori terms. The bill refers to the Conservation Act, the Historic Places Act, and so on and so forth.

I think there is only one—at most—new Māori term in the bill. In fact, we have had a long discussion about tikanga. I thought about it yesterday; I should have brought my matua’s principled work from Hirini Mead, who wrote a thick book on tikanga.

Hon Parekura Horomia: That’s right.

PAUL QUINN: You probably have a copy in your office, e hoa.

Hon Parekura Horomia: We don’t need those in Ngāti Porou; it’s a living thing.

PAUL QUINN: No, no. This is for the Pākehā. This is for the Pākehā so they can understand. I am surprised that my taina did not produce it when he was talking about tikanga. My uncle has written the seminal piece of work on it. It is there for the courts to use as a guide.

I will come back to the point. By codifying, we can place a ring-fence around what the court can and cannot decide. That will be important as we go forward, when this bill comes into force after the date on which it receives Royal assent. Once it comes into place, we will have codification, and that will enable us to go forward as a nation in peace and harmony. We can put behind us the scourge of arguments we have had in this Chamber.

Thank you. It has been a great opportunity to contribute to this debate, and I thank the Committee.

Hon PAREKURA HOROMIA (Labour—Ikaroa-Rāwhiti) : Tēnā tātou. I roto i te tū nei kei te mihi kau ana ki tōku whanaunga e noho atu i roto i te mahana o te Tūru Kaiwhakahaere o te Whare. Tēnā koe. Kāore e mau atu i te maka kōrero mō i a koe engari, mō wētahi i roto i tō rōpū, me rātou mā, e maka atu i roto i āku. Tēnā tātou.

E mihi kau ana ki ngā āhua katoa mō te ture nei, mō rātou mā e kore i konei, mō rātou e whai kaha i te hīkoi tahi atu i te tai i Pōneke, mai i te wāhi o Te Oneroa-a-Tohe, kaha atu rātou i tērā tau. E mihi kau ana. Nā, te pai hoki kei te tae tata atu tātou ki te oti o te ture nei, ahakoa te whakaaro wehewehe i roto i āku mō tēnei take.

[Greetings to us. As I rise I acknowledge my relative sitting in the warm seat beside the Chair of the House. Greetings to you. I do not have anything critical to say about you, but I do about some in your party, and other members. I certainly have something disparaging to toss at them. Greetings to us.

I commend all aspects of this legislation, I commend those who are not here and those ones who have found the energy to march together to Wellington from the Long Beach of Tōhe. They were resolute last year. I commend them. It is wonderful that we have nearly completed the debates on this legislation, even though my views on it differ .]

I was surprised that the member across the other side of the Chamber Paul Quinn dared to suggest that my parliamentary colleague was his taina. I have always known that whakapapa, great as it is, from the maunga Mauao, and I thought he was the taina. “Taina” is “junior”. In the sense of the titling of the Marine and Coastal Area (Takutai Moana) Bill, it certainly smacks of “juniorism”, in terms of the suggestions that this bill will be the be-all and end-all. It could be the “Hullabaloo Bill”, or the “How to Pull the Wool Over the Māoris’ Eyes Bill”.

We need to go back, in retrospect, and remember that the issue arose of making sure things went to the court. My learned colleague David Parker is dead right. There is a cost to all of this. It is like our youngsters who get into the trap of recidivism. This is just like it. If they sin once under the age of 20, they sin six times, and they get taken to pieces by the legal beagles and those who snuffle in that trough. I hope that will not happen here. In the essence of codification, let us be sure who pays for it and how it is done in relation to all the relevant issues in the parts we have discussed.

There are wide-ranging notions in this legislation. Time will tell how we get through it, but let us all be honest and frank enough to say that that will be work over a period of time. For the sake of the member opposite, I tell him that I have no intention of leaving this planet any earlier than him. It is outrageous that he should get so dull as to start talking about that. That is how lopsided the member and some of his colleagues have got. They try to define what time we should leave this planet. It is bureaucracy gone mad! That is what this bill smacks of. The Māori Party has tried to couch it and it has just become over-endowed bureaucrats.

The Prime Minister said in 2003 that he was going to get rid of the Māori seats, so I was trying to encourage the Māori Party members to change their vote. As soon as this bill is through, next week he will get rid of the Māori seats. The difference in this vote is the four Māori seats. This bill is supposed to support the Māori seats.

The member also mentioned Wī Pārata. Pārata is a great name. I have some whanaunga who are named Pārata, but Wī Pārata was from another boundary. He said: “For you may take the land but all you have is the shadow. The land is Māori, and the soul of Māori is the land.” That is what Wī Pārata said in one of the early challenges. If the member quotes one statement, he should remember the better statements. That statement was one of his better political statements, and that is what this bill should be about.

Where I come from it is paradise.

Hon Tau Henare: Where’s that?

Hon PAREKURA HOROMIA: It is paradise—Mangatuna, Houri. It is a great place; beaches abound. Seals still come up on the bank and bathe and there is kai moana and all of that stuff.

The issue is that no matter what the law provides for, we have always allowed people access, whether they are Pākehā, whether they come from the ACT Party, whether they are Samoan, or whether they are the local whānau. I was down at the Mōhaka River the other day and I asked this guy how long he had been there for. He said he was retired and had been there for 2 months. He said the Māoris had been letting him go there for 40 years. It is not suggested in this bill that Māori are as advanced as that in intellect, in niceties, in good behaviour, and in hospitality to people who want to visit.

I make the point that in some iwi the contiguousness of the land to the takutai moana gives them a real strong inherited right, which most of them have managed well. They do not need anyone to come along and tell them how to behave and why they should do that. That needs to be highlighted and remembered as we go along in this development.

Hon Dr Wayne Mapp: You are effectively supporting the bill by that statement.

Hon PAREKURA HOROMIA: No, Mr Mapp, it is different up north—people flog the whenua and all of that. In some areas where there is a congruity of the land to the takutai moana it is as a result of Māori hospitality, not the hospitality of the court or overseas people. It is the hospitality of those generations who have inherited that right through whakapapa and living there, and that is really important.

There is a bit in the bill about hāngi stones and launching the waka. I do not know who put that bit in there. But anyway, I was listening to my colleague David Parker the other night. We have to be explicit about what will help in this matter. The Minister for the Environment, the Minister of Corrections, the Minister of Women’s Affairs, and Ministers for everything else have a say on this issue. There needs to be some serious balancing. People need to go through the sense of the legislation. In some areas now at Christmas time, when we celebrate the “Great Being” and whatever else, Māori like to have a hāngi, but the Resource Management Act says they cannot light a fire. What is the use of having hāngi stones if one cannot light a fire? The point is this: there are contradictions in the law and they cut over tikanga and tuku iho. Darren Hughes likes having hāngi at Christmas. He is well practised in it. But the tikanga as versed in the Resource Management Act says we cannot use those hāngi stones and that it is no good.

I remind the Minister today—

Rahui Katene: The Labour Government could have done something about it during its 9 long years.

Hon PAREKURA HOROMIA: We did great things. We kept the unemployment rate at 5 percent. It was not running at 27 percent. We made sure petrol prices were where they should be. We made sure people could pay their bills. We made sure people had a job. We made sure Māori Television started. We made sure the distribution of health services to preschoolers was really great. It was a great 9 years.

Hon Darren Hughes: That member voted for it .

Hon PAREKURA HOROMIA: And that member voted for it. She knew that we were good. At the end of the day it was a great thing.

Rahui Katene: I raise a point of order, Mr Chairperson. Relevance—[Interruption]

The CHAIRPERSON (Hon Rick Barker): I have called a point of order. The exchanges in the Chamber will stop. There is a point of order. I do not care who started it; everybody will stop.

Rahui Katene: I fail to see the relevance of this to the part we are debating at the moment.

The CHAIRPERSON (Hon Rick Barker): The member invited it herself by her own interjections. If the member is going to interject in that manner she will have to expect some contribution back, and the unfortunate part for the member is that the member speaking has the microphone. It is a huge advantage. I say to the member that if she is going to interject, she should calculate that the other person has a microphone and might wander a bit further than she likes. Having said that, I have been signalling to the member with the call that he needs to come back to the point. It is a point well made.

Hon PAREKURA HOROMIA: Kia ora, Mr Chairperson. Tēnā koe, Rahui. In the early days, when I first came to Wellington to work out what was in the briefcase, I used to go with this great man called John, who was Rahui’s whānau. We used to go outside the Department of Social Welfare and protest. He used to tell me to line up out front at 1 o’clock, and we would make sure we put right the crooked Department of Social Welfare and the Government. He was working for them at that time. He would give us the placards and tell us where to stand. I would go and start yelling out for Mrs Bazley, or somebody else, to come out so I could ask them what the hang they were doing. Then I would look around and wonder where the other 200 supporters were. There was nobody. But that Māori was a great Māori because he defended tikanga. He did not shudder, or shut up, or go away. I was proud to know him, even though sometimes he would go over to America; he would come back with big Indian belts and give me one. He had international nuances that he knew about. I suggest to that member that I could teach her about some of the things he taught me.

Tikanga should not be left to law. Tikanga is something that we have to live and maintain, and we have to ensure it is enshrined in our being. It is not just about kapahaka and tā moko, which are great things. It is not just about those or about waka ama. They are great things for our young generations to participate in, and they keep going, but tikanga is about living those issues that are relevant to being Māori. That is all we want to see in this bill: the issues that are relevant to Māori. We may have to adjust and align but not sell out, and that is really, really important.

I feel for the 200 who are marching down the road thinking they are going to change the world; by the time they get here the Māori Party will have signed the bill off. There is nothing to come here for.

There is nothing like being a Māori MP. We get it from the Pākehās, like that silly woman over there who talked about holding one’s breath under the water and Alice in Wonderland. One wonders where the hang she is; she is writing Peter Pan notions. That is disgraceful and is the extreme of the other people in this country. We get it from our own cousins, our own colleagues, especially if we are Māori and are used to working as a minority amongst a whole lot of Pākehās, Africans, and everybody. We get it from everybody. Worst of all, we get it from our own whānau. When the hīkoi came down, I had whānau on the other side yelling at me.

Hon TAU HENARE (National) : I start off my brief stint by congratulating the Hon Parekura Horomia, because that speech was one of the best I have heard him deliver in the Chamber. It might not have been factually correct, but it was a hell of a speech. He was a pretty half-decent Minister of Māori Affairs, as well. I cannot say that about his colleagues, though.

The title of this bill is the Marine and Coastal Area (Takutai Moana) Bill, but maybe the title should be the “Apology for the Sort of Stuff that Labour Did in 2004 Bill”. Let us get something straight. I have been sitting in the Chamber for the last 2 or 3 days listening very intently—

Hon David Parker: Ha, ha!

Hon TAU HENARE: —to the likes of David Parker. When I met him I thought: “This guy has a lot going for him.” I thought he would be the Labour leader, after Helen Clark. But then we got to the Māori Affairs Committee, and on a Friday night at about 5.50—

Paul Quinn: 5.05.

Hon TAU HENARE: At about 5.05 we were delivered a 500-page document and told we should all read it.

Hon David Parker: How was it delivered?

Hon TAU HENARE: Through the Internet. If anyone of these fellas has a BlackBerry, they should have been able to read it. They should have been able to read the executive summary, at least. I have been guilty of that before—I have read only the executive summary. I do not always read the whole thing, because we have work to do. I concentrate just on the executive summary. But could Labour Party members do that? I would expect one member to have read the executive summary, and David Parker is the one member I would expect to have read it. I did not think that Kelvin Davis would go home and read it, I did not think that Mita Ririnui would read it, and I did not think that Parekura Horomia would read it. I know these fellas; they will leave it to the Pākehā fella to read.

Hon Members: Ha, ha!

Hon TAU HENARE: That is the truth. So that side was let down; it was let down by none other than David Parker.

I have heard all sorts of stories in this debate, but I say this to all those people across the Chamber who have been referring to waka jumping, and this, that, and the other thing through this whole debate. I want remind members—in fact I want to school them up—of what was said by Te Kooti, that great Rongowhakaata leader. He said: “It might be a different waka that we all travel in, but the landing place is the same.” What we got from that was that the Labour members, in their wisdom—in their mind’s eye, that is—put through this House in 2004 a bill that was not particularly good. Fifty thousand people came knocking on the door to tell them it was not a good thing. Within 2 to 3 hours after the Court of Appeal decision had been made, politicians jumped on it and created a mess that they really could not get out of.

I was heartened to hear the Hon Maryan Street apologise, not once but twice. That is all I wanted. As far as I am concerned, all I ever wanted from the Labour Party was an apology. If that is the apology, I thank the member.

Paul Quinn: David was first.

Hon TAU HENARE: David Parker may have been first, but I would rather give it to Maryan.

Hon Darren Hughes: Are you going to rejoin the Labour Party?

Hon TAU HENARE: Rejoin? What does that mean? To rejoin, one must have been a member. I have never been a member of a foolhardy group.

Hon Darren Hughes: Did the member vote Labour?

Hon TAU HENARE: No, never. Let me tell members—and I digress, Mr Chairperson, because I have been challenged—that my first voting foray was in 1978 when I voted—[Interruption] Mr Chair?

The CHAIRPERSON (Hon Rick Barker): I think I want to hear the answer.

Hon TAU HENARE: I voted for the Hon Matiu Rata, who was standing as a member for Mana Motuhake, not Labour, in the 1978 or 1979 by-election.

Hon Darren Hughes: No, there was no by-election in 1979.

Hon TAU HENARE: The 1978 by-election?

Hon Darren Hughes: The 1978 general election.

Hon TAU HENARE: No, he had resigned his seat. It was 1979.

Hon Darren Hughes: 1980.

Hon TAU HENARE: 1980. That was my first voting foray. So I voted not for Labour but for Mana Motuhake.

Hon Darren Hughes: Why did he wait till he was 30 to cast his first vote?

Hon TAU HENARE: Ha ha! That was a good one; I will give the member that. But I go back to the bill. I have heard the discussion in the Chamber that this bill is about Māori this and Māori that. When we look at the bill, we see that it is about New Zealand. It is about an opportunity for both Māori and others, Europeans and others, to get it right. This Government has attempted to get it right, and only time will tell whether this bill is the right thing. I believe in my heart that it is.

I will give some examples of people’s access to the beach prior to the 2004 legislation and after the 2004 legislation, and what will most probably happen after this legislation. There will always be miscreants who will get on the beach and say to people: “You’re not coming onto my beach.”, regardless of whatever law we have. I bet my bottom dollar that individuals will get up, not representing any iwi or hapū other than their own self-interest, and tell whoever is listening to get off their beach, regardless of whether they have the right to do that. That will happen, and it does happen.

Hon Parekura Horomia: The rich people.

Hon TAU HENARE: It is not only the rich people; it is—

Hon Parekura Horomia: Yes, it is.

Hon TAU HENARE: You know, Labour members have got to get it out of their heads that rich people are stopping us from doing anything. That fact of the matter is that it is most probably the rich people who are damn well looking after the beaches, as we all should be—especially those people up on the East Coast and up in the north, which is my own territory, who continually say to tourists and to people from those areas: “Get off our beaches.” Well, they ain’t their beaches; they are New Zealand’s beaches.

This whole argument is not even about the beach. I tell John Boscawen, briefly, that the problem is not access to the beach. If people want to come to the beach—and I have a plot of land there—they can come and ask. Nine times out of 10, people will allow others to walk over their property to the beach. Access has never been an issue. It was always a red herring. What we are talking about is codifying and putting into legislation the bits and pieces that go with responsibility in terms of the cultural side of things—the tikanga.

I tell members that, like Jerry Matepārae, I am with New Zealand. I back the majority of New Zealanders, both Māori and Pākehā, to get on well, to have their barbecues on the beach, to have access to the beach, to protect wāhi tapu, and to protect those areas that mean a hell of a lot to us, not as a people but as a nation. That is what I see in this bill. I am past the time when I could get stuck into those members for that horrible thing they did in 2004, and I accept the apology that they have given. It means a hell of a lot, and I am not kidding. An apology for doing what they did in 2004 means a hell of a lot, but we have to move on, and this is the way that we move on.

With this vehicle we can move on to a better place for New Zealand. Let us deal with the issues of unemployment and economic recovery, instead of getting bogged down in what I term an unholy argument about race.

Hon DAVID PARKER (Labour) : Firstly, I acknowledge the officials, who have been here for a long time this week. I thank them for being here and for the help they gave to the Māori Affairs Committee and this Parliament.

I will raise a couple of issues. Firstly, I will point out the logical flaw in Paul Quinn’s argument. Paul Quinn said that codifying the relevant tests for the establishment of customary interests settles the issue and will provide an enduring settlement, but I ask how that can be when the Māori Party, the coalition party that the Government relies upon to pass this legislation, says it disagrees. The reason Labour withdrew from a consensus on this legislation was that it had turned into a fiction. Māori Party members could not bring themselves to say that they accepted that this legislation was an enduring deal. If they had done, maybe Parliament would have had a different outcome now, and we would just about have unanimity on this thing. The Prime Minister did not go to the Māori Party and say that the Government needed it to acknowledge this bill as a full and final settlement of the framework for the settlement of customary interests in the foreshore and seabed. It is a failure of leadership, in the view of the Labour Party, on the part of both National and the Māori Party that they did not get to that point. The objective those members set for themselves was that this bill would settle things. So there is a logical flaw there.

The other thing I thought was interesting in Paul Quinn’s contribution was that he spent the first part of it saying how great it was that the Māori Party and National were cooperating on this issue. That is interesting, because a lot of people are effectively saying—and they are right—that a vote for the Māori Party is a vote for National. From the Māori Party supporters’ point of view, they see that as being a plague upon the Māori Party house. A lot of other people are saying that a vote for National is a vote for the Māori Party, and that is being seen as a plague upon National in the eyes of a lot of voters. It is really a plague upon both their houses. In a process sense this legislation is being pushed through quickly, even under the shadow of the Canterbury tragedy and the Christchurch earthquake, because both the Māori Party and National know those lines are correct; a vote for the Māori Party is a vote for National, and a vote for National is a vote for the Māori Party. That is why the select committee process was truncated. Both the Māori Party and National want to get this legislation off the agenda, because it is a plague upon both their houses.

I will also deal with something that the Hon Mita Ririnui said. I thought his contribution in respect of the member for Te Tai Tonga was appropriate. He was not making a personal attack upon her; he was just asking how she could stand there and pretend that the bill delivers what she says it delivers for Ngāi Tahu, when it does not. Ngāi Tahu do not favour the bill. They say the bill should go down.

Hon Tau Henare: She’s not there as a representative of Ngāi Tahu; she’s there as a representative of Te Wai Pounamu.

Hon DAVID PARKER: I agree that she is not here as a representative of Ngāi Tahu—her interests are broader than that—but she pretends that the bill delivers to Ngāi Tahu something that meets their aspirations, when it does not. It most plainly does not. I do not necessarily agree with Ngāi Tahu’s view on what the common law test would be if it went to court. In fact, I do not agree with them, but I do believe they should have the right to explore it, and I do believe them when they say their sense of injustice will last for generations, and will not go away through the passage of this legislation. Mita Ririnui’s criticisms of Rahui Katene were not personal attacks upon her; they were actually just showing that the position she takes is wrong and is ignorant in respect of what the bill delivers for Ngāi Tahu, which is very little, if anything.

In respect of that issue the Māori Party is hoist with its own petard, because through its—in my view irresponsible at times—rhetoric at one edge of the debate, during the debate on the last version of the legislation it created an expectation amongst Māoridom that would never have been delivered by the Ngāti Apa decision. The Māori Party is being hoist with its own petard because it exaggerated to the people it purports to represent an outcome that would never have been achieved. That is not what the law ever said.

The other thing Paul Quinn said is that the legislation makes the foreshore and seabed safe, and everyone can have access to them. That is a return to some of the arguments of the past that I did not like. I acknowledge that in Tau Henare’s contribution he made it clear that access to the beaches has never been an issue in relation to the Foreshore and Seabed Act. That was a fiction put about by Don Brash and other members of National. I have actually read out their contributions in the Committee stage, including Nick Smith’s—

Hon Tau Henare: And yours.

Hon DAVID PARKER: No, we actually said in this House that access to the beaches was not at risk. We made it absolutely explicit in our contributions that it was never at risk. In fact, we also legislated through the Foreshore and Seabed Act that it was not at risk.

I agree with Tau Henare that access across people’s land to the foreshore and seabed is a completely different issue. It has never been an issue in terms of the Ngāti Apa foreshore and seabed decision. There are places in New Zealand where, as my colleague Parekura Horomia has said, access down to the beach is increasingly difficult. That is a different issue, I agree, but it is a practical issue in parts where some private owners are exercising their property right to exclude others and are stopping people from going across their land in a way that was not the case in prior years. That is not a foreshore and seabed issue, as Parekura Horomia makes clear; it is another important issue.

The legislation has a new name. It is the Marine and Coastal Area (Takutai Moana) Bill. It could equally be called the “Replacement Foreshore and Seabed Bill”, because it is actually not much different from the original Act. It is not much different. The main difference is that someone who has proved to the court that they have a territorial customary right now does not have to go to the Crown to negotiate to get their rights back; they can get a remedy from the court. That is an important change that Labour agrees with and indeed submitted to the review committee. Yes, the threshold tests are a bit different, but they are not very different. The creation of the new definition of public space as a space that somehow no one owns is a legal fiction. What matters is not whether the space is held by the Crown or held in some other name; what matters is the different rights people have in respect of that space, and those bundles of rights are largely unchanged.

I am saddened at the lack of leadership shown by both the Māori Party and National in not getting us to a settlement. That is the task they set us, and because National was not willing to call the bluff of the Māori Party and say it could take it or leave it, and because of the unwillingness of the Māori Party to offer up acceptance that the settlement was fair, we have left New Zealand with uncertainty—

Hon Dr Wayne Mapp: No, you’re the ones who’ve done that by your hype, actually.

Hon DAVID PARKER: No, I tell Dr Mapp that that is not correct. I might quote again what he said in the Committee stage of the last version; he said that large tracts of the foreshore and seabed would not be accessible to non-Māori. That is something that should stand as a stain upon that member’s record in this House. The reality is that this bill does not settle the issue, because the Māori Party and National have not been able to reach an accommodation between themselves acknowledging that this legislation is full and final. The Prime Minister has not required that of the Māori Party and the Māori Party has not offered it. John Armstrong was right when he made that analysis in the New Zealand Herald. National moved a long way. Labour was willing to move a little way. We did not actually have to move very far, because we were a lot closer to the Māori Party than National was. But we were willing to move even a bit further than that. The Māori Party had to move just a little way. It actually had to show a bit of leadership. As Tau Henare said, its members are not here to represent just an iwi interest. We are here representing the interests of all—

Hon Dr Wayne Mapp: They actually have shown leadership by their vote today.

Hon DAVID PARKER: No, they have said at co-leader and senior whip level that they do not accept that this bill is a settlement, and that it is but a first step. That is a failure of political leadership that is bad for this country. The access issues were never an issue. Sadly, this bill should be called the “Failed Attempt at Settlement Bill”. I think it is lamentable, because we got very close. We had the opportunity. Even if one of the Supplementary Order Papers that would flick it all back to the courts had been voted for, that would have settled it, too. There were a couple of ways in which this bill could have resulted in settlement, but it did not occur.

Hon JOHN BOSCAWEN (Deputy Leader—ACT) : 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.

• Progress reported.

• Report adopted.