Hon Christopher Finlayson

Attorney-General

24 March 2011

Media Statement

Marine and Coastal Area (Takutai Moana) Bill

Third Reading Speech

Introduction

The third and final reading of this bill marks the completion of more than two years of consultation and policy development on a matter that has vexed us as a nation for almost a decade.

Today this House repeals the Foreshore and Seabed Act 2004. It replaces that act with new legislation which recognizes and protects the interests and rights of all New Zealanders to the common marine and coastal area.

It ensures the right of public access, without charge, to the common marine and coastal area.

It protects the rights of coastal navigation, port activities, other infrastructure, and access to Crown minerals.

And it develops, for the first time, a way in which Maori can seek to have their interests and rights recognized and protected on an equal basis.

This recognition and protection will include recognition of mana tuku iho status for iwi and hapū to acknowledge ancestral connections with specific parts of the common marine and coastal area. It allows the recognition of customary rights associated with the exercise of longstanding activities in the marine and coastal area.

It gives iwi, hapū and whanau the right to seek customary title to specific parts of the common marine and coastal area to which they have longstanding and continuing connections, subject to the continuing right of public access.

Those are the main things which the Marine and Coastal Area Bill will accomplish.

Consensus on repealing the Foreshore & Seabed Act

It has been said at various points in the debate that the government was rushing things, or not taking enough time. Just yesterday, Hone Harawira was again asking for the bill to be delayed in favour of “a long conversation”.

Well, we have already had a very long conversation. The Ministerial Review Panel, which recommended repeal of the Foreshore and Seabed Act, was set up two years ago.

The bill we debate today has been before the House for six months.

And one thing that has become very clear over those six months is that noise does not always equal opposition.

In fact, what has emerged during the debate is that there is consensus among nearly everyone in this House on the most important points, in particular restoring the right of iwi to seek customary title, the common law right confirmed by the Court of Appeal in Ngati Apa and taken away by the Foreshore and Seabed Act in 2004.

We as a Parliament are united on that point and on righting that wrong.

And it pays to recall why we are doing so. The Foreshore and Seabed Act discriminated against Maori and their interests in the foreshore and seabed received a different and lower level of recognition than non-Maori.

In 2005 the United Nations’ Committee on the Elimination of Racial Discrimination said in a report that:

The [Foreshore and Seabed Act 2004] appears to the Committee, on balance, to contain discriminatory aspects against Māori, in particular in its extinguishment of the possibility of establishing Māori customary titles over the foreshore and seabed and its failure to provide a guaranteed right of redress.

We are all agreed on the need for the Foreshore and Seabed Act to go.

Codification

There have been points of difference among political parties. But I think the areas of difference have narrowed as the debate has gone on.

We are agreed that the right to seek recognition of customary title must be restored. There is a narrow issue of how we provide for that access to justice.

The Government’s proposal in this bill is to provide guidance for the courts, based on the remarks of the Court of Appeal in Ngati Apa, the experience of Commonwealth jurisdictions such as Canada and our shared understanding as New Zealanders of the importance of beach culture and manaakitanga.

The alternative proposal is to repeal the existing law and leave the Courts to piece together the tests and awards of customary title from scratch. This would probably take many years and lead to uncertainty.

We think certainty is important. That is why the codification of tests and awards is necessary. Indeed, this was the view of many submitters to the select committee considering the Bill, such as Business New Zealand, the Law Society, and Local Government New Zealand.

I thank all these organisations must also be thanked for their constructive advice on how the Bill could better achieve its goals.

It was also the view of former Attorney-General Michael Cullen. In Labour’s submission to a ministerial review in 2009, he said wrote that the goals of certainty and equity demanded that tests and awards be codified in the legislation. I agree with Dr Cullen.

In all my consultation, I did not meet one iwi leader who wanted to stop the public going on any customary title area in the marine and coastal area. This set of values about the marine and coastal area is shared by us all, and expressed in the fact Labour and the Greens would also legislate for free public access and the inalienability of customary title.

This is admirable. It shows we are all on the same page in principle.

In more concrete terms, it demonstrates that we are not even arguing over codification versus a blank slate, because legislating for free access is a codification of awards.

We simply disagree about some of the finer points of codification, and how much guidance should be offered to the courts based on our work over the last few years.

Justice for Maori has been denied for seven years. The political class created this problem in 2003 and 2004 following the Court ruling, and it is incumbent on this Parliament now to provide a solution and to put things back where they likely would have been by now. We cannot just sit by and shrug our shoulders because it might be too hard.

And I think we have struck the right balance. I note that in his report last year, the UN Special Rapporteur, James Anaya, wrote that the Marine and Coastal Area Bill represents “a notable effort to reverse some of the principal areas of concern of the 2004 Foreshore and Seabed Act.

Maori Party

Today I want to pay tribute to the Maori Party for always holding firm to their principles. Working with my colleagues in the Maori Party in developing the bill we debate today has been the highlights of my time in Parliament.

They have achieved repeal of the Foreshore and Seabed Act. Nobody can take that away from them.

I particularly want to mention Hon Tariana Turia. She has stuck firmly to her beliefs; she has shown quiet dignity and courage in support of her convictions.

She does not seek the headlines; she does not need to rant to get her views across. Rather, she approaches issues fairly and with the gravity they demand. She is a great New Zealander.

I acknowledge the leader of the UnitedFuture Party, Hon Peter Dunne, who has taken a principled position throughout the whole debate from 2003 onwards and who has been of great assistance as we worked to find a just resolution.

I also thank David Parker, Kelvin Davis, Mita Ririnui and Shane Jones for their thoughtful contributions during the committee stages of the bill.

We disagreed on two key issues but I agree with David Parker that the debate was devoid of hyperbole and rancour – at least on their part.

I also congratulate Mr Jones once again on his SOP which was so good it was unanimously accepted by the Committee.

Conclusion

Today we settle an issue that has troubled our nation for too long. I am confident that the bill the House will pass this afternoon is just, durable, and recognises the rights of all New Zealanders in the common marine and coastal area.

ENDS

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