Marine and Coastal Area (Takutai Moana) Bill; Second Reading

Hon Tariana Turia, Co-leader of the Maori Party

Tuesday 8 March 2011; 4pm

Mr Speaker, I move, that the Marine and Coastal Area (Takutai Moana) Bill be now read a second time.

I am proud to lead the debate on this important bill; a bill which will remove forever the 2004 Foreshore and Seabed Act from the statutes of our land.

The call to repeal the 2004 Act has been heard many times in this House – including the forecourts outside which witnessed the largest Maori protest since the Maori Land March in 1975.

Te Ope Mana a Tai articulated that call and I repeat their words for the record, ‘the Foreshore and Seabed Act will never be viewed by iwi / hapu as anything other than an instrument of confiscation”.

The 2004 Act extinguished existing Maori customary title.

It then went further and removed access to the Courts for Maori to seek recognition of customary title; in one swift turn of the pen denying one group of New Zealanders the opportunity for due process to occur.

The Foreshore and Seabed Act conferred ownership of the foreshore and seabed in the Crown. In its totality, the 2004 Bill became synonymous with a Government that was unacceptably interventionist, acting with undue haste to override the judicial process.

In one of the most damning reports ever written the Waitangi Tribunal concluded that the Crown had seriously breached the principles of Te Tiriti o Waitangi.

It did this by failing to respect tino rangatiratanga and the good faith obligations of partnership; denying active protection to Maori; expropriating Maori property; through actively assuming ownership without either consent or compensation.

Mr Speaker, this is a context which has been well rehearsed over successive years; at marae; in university lectures; across the kitchen table, and in this debating chamber.

There has been a lengthy and frequently painful debate since 2003 when the Court of Appeal first agreed that Ngati Apa could have customary title investigated by the Courts.

And yet through the rage and the dismay, there have been many milestones along the way.

On 10 June 2004 we established the Maori Party; one of our key goals being to repeal the Foreshore and Seabed Act.

On 12 October 2006 I introduced our very first Maori Party private members bill, the Foreshore and Seabed Act (Repeal) Bill.

After the General Election in November 2008, the Maori Party signed a relationship agreement with the National Party, one of the most critical targets being to review the 2004 Act.

And almost two years ago to the day, on 4 March 2009 the Government announced a Ministerial Review to be chaired by Justice Taihakurei Edward Durie, with Hana O’Regan and Richard Boast.

Many, many thousands of New Zealanders have taken part over the last eight years of an intensive and exhaustive consultation process which has led us to the pathway that we embark upon today.

And so what are the hallmark features of the Marine and Coastal Area (Takutai Moana) bill?

Inevitably the essential legacy of this Bill will be in repealing the discriminatory Foreshore and Seabed Act of 2004.

But in repealing that Act, it also takes a step forward, creating what a former Tribunal lawyer has called a real incentive for whanau, hapu or iwi who claim rights to seek them before the courts.

Tom Bennion, the editor of the Maori Law Review, has described the Marine and Coastal Area (Takutai Moana) Bill as ‘an ambitious reworking of the issue to provide some real rights to Maori’ – rather than what might have been the careful and cautious adjustment of interests that a cynic might have expected.

There is no better description of the potential of this Bill than in the Preamble:

This Act takes account of the intrinsic, inherited rights of whanau, hapu and iwi; derived in accordance with tikanga and based on their connection with the foreshore and seabed.

It translates those inherited rights into legal rights and interests that are inalienable, enduring and able to be exercised so as to sustain all the people of New Zealand and the coastal marine environment for future generations.

Tikanga Maori will play an essential role in determining such titles – and the Maori Party has been very clear that we expect tikanga Maori to be observed and upheld at every stage of the process in the implementation of this Bill.

There are a number of rights that will come with the recognition of customary marine title such as:

the right to permit or veto applications under the Resource Management Act; or conservation activity;

the ability to protect wahi tapu within a customary marine title area;

rights in relation to marine mammal watching permits and New Zealand coastal policy statements;

ownership of new found taonga tuturu;

ownership of non-Crown minerals – that is minerals except for gold, silver, uranium and petroleum.

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 a customary interest has not been extinguished”.

In other words, it will be up to the Crown to prove that any interest has been extinguished- rather than placing the onus for proof on the whanau, hapu and iwi.

Is this a panacea for all ills? I think not.

We have vigorously fought the case against too high a threshold being applied to the tests for customary marine titles – a concern which whanau, hapu and iwi have consistently raised with us.

And we appreciate also the concern of many Maori who seek a new Treaty based ‘longer conversation’ to safeguard the mana of hapu and iwi.

This was a resounding theme of the 72 submissions received by the Maori Affairs select committee from marae, hapu, iwi, Maori land owners, organizations and collectives. It is a theme that we have certainly heard, and we will continue to give voice to, in every sphere of political activity that we are engaged in.

There has been some statements made in public about the ‘overwhelming opposition’ to the Bill demonstrated in the select committee process.

I think that comment should be balanced by the fact that less than 2% of the 5700 submissions received were in fact from Maori – the great majority of submitters coming from within lobby groups the like of the Coastal Coalition.

There is no question that this issue has given life to some powerful advocates who have drawn on considerable resource to sell their message. Our challenge was always how to ensure we looked forward while at the same time getting rid of the legislation that created such division between New Zealanders.

And so we have listened carefully to the guidance of kaumatua who have recommended a series of smaller, discrete cases to be taken to the courts to establish comparative precedent.

We have attended hui across the motu, to supplement the information received at the select committee - and we know that there have been a rigorous schedule of meetings throughout electorates - all this input is vital.

I want to particularly acknowledge the dedicated commitment and the vision of the iwi leaders’ forum, in making every effort possible to carve out a better future for our mokopuna.

And finally, we mihi to Chris Finlayson, the Minister, who has willingly taken on what at times has seemed an impossible exercise. The fact that he has persevered despite all, will be forever acknowledged and known.

This is our bill – a Bill which the National Party was prepared to back.

We will not resile from the promise that we gave our people to keep our word – to repeal the 2004 Act; to restore access to the courts; and in every step of the journey to have the courage and the commitment to ensure this legislation recognizes and provides for the enduring mana-based relationship of whanau, hapu and iwi to their takutai moana.

Tena tatou katoa

ENDS

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