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Tamihere: Foreshore and Seabed Bill – 2nd reading

John Tamihere Member of Parliament for Tamaki Makaurau

16 November 2004 Speech Notes

Foreshore and Seabed Bill – 2nd reading

Mr Speaker,

This is a further mighty step on the road to fulfilling our nationhood manual. We continue to write it, we continue to persevere, we continue to be stoic, but above all we must continue to be fair in continuing to write this most very important manual.

We support the foreshore and seabed legislation as part of the continuing evolving journey of nationhood. Will Tariana Turia, and Peter Sharples support it? I think not. Will Don Brash and Rodney Hide support it? I think not.

It is easy to oppose, it is easy to walk over justifiable rights; rights, which are deeply engraved in the bedrock of our constitution, and therefore our nationhood.

This bill would not be if it were not for the finding of the New Zealand Court of Appeal. It ruled that Mäori may have a range of existing rights awaiting exploration and awaiting crystallisation. I am grateful to be in the Labour party, the party that represents all New Zealanders interests, not just the vested interests of a few. Our Parliamentary makeup is the face of the future. It reflects the face of a dynamic go forward New Zealand, but above all it reflects social justice, it reflects an acknowledgement of private property rights, it reflects the ability to bring our races together in this country and forge them in a way that no other party can in this parliament.

I acknowledge the leadership of Dr Michael Cullen; I acknowledge the integrity of our leader the Prime Minister in this very fraught and difficult process. But most of all I acknowledge my Mäori colleagues who have had to undergo a daily baptism of fire in their electorate over this issue.

We support the Supplementary Order paper for the following reasons:


When our ancestors signed the Treaty of Waitangi, which is now entrenched and embedded in the constitution and the consciousness of this country three major articles appeared.

We acknowledge the first principle of governance-ship, kawanatanga,

In turn the government acknowledged our right of rangatiratanga over matters special to Mäori in the second article.

In the third article our ancestors acknowledged that we would be treated with equality as citizens of this country.

Mr Speaker, in allowing the Crown to assert legal and beneficial ownership of the foreshore and seabed we acknowledge the Crown’s right to govern. In governing the Crown has significant fiduciary responsibilities owed to Mäori in terms of the principle of protection. It is well known in common law that common law rights can only be extinguished if they are freely alienated by the holders of that right or acquired by actual and overt legislation removing the right. We demand the right of equality before the law. Just because our rights are different, and have a different genesis, does not mean they are lesser than the rights of others.

We therefore support the legislation because the crown stands to protect our common law interest and our customary rights. This legislation attempts to codify and explain those rights.

Due Process:

Under no circumstances has the Crown moved to extinguish the right of due process. Mäori can, and I would argue must, proceed to the Mäori Land Court and the High Court to assert and evidence their rights as they would have, regardless of this legislation. What this legislation guarantees is that there is now a clear process for doing this and the possible results are now codified.

Definition of Customary territorial right (Aboriginal title):

We have been constrained here by the NZ First position and they have forced the very high standard that is required to be achieved at common law to be adopted as statute law under this legislation. I regret their stance because I believe larger groupings of Mäori could have and should have obtained the protection of this legislation. I am grateful that a range of roadway orders, roads and reserves of a manifest range have been accepted as not precluding the right Mäori have to evidence their association with their foreshore and seabed interests.


The issue of redress: once the territorial customary right (an Aboriginal title) has been found by the High Court the High Court then directs the applicant to negotiate as they must under the legislation, as they must with the Attorney-General and the Minister of Mäori Affairs for a redress option. One option that we did place in was the option of reserves. Mäori coastal marine reserves, as I would put it. There are a whole range of options available in these redress negotiations. We merely needed to evidence the type of thinking that Mäori Caucus and others had agreed on. The most sacrosanct land that we have is vested under section 439 of the Mäori Affairs Act, 1953, (Section 238 of the Te Ture Whenua Act 1993.) All Maori understand that our wahi tapu, our urupa and our Marae, are sacrosanct and that this type of reserve should be applied for our taku tai moana, (foreshore and seabed).

Comprehensive Package:

This legislation must be seen as a part of a comprehensive package of legislation including

The Mäori Fisheries Act 2004 and (the allocation of Mäori Fisheries Resources)

The Aquaculture and Marine Areas Act (providing Mäori no less than 20% of Aquaculture Marine Areas.)

Foreshore and Seabed Act (protecting Mäori customary rights)

The Marine Reserves Act (given the above major Maori involvement)

Resource Management Act (given the above consequential amendments)


This legislation is about clarifying these Maori customary rights and protecting them in a way that gives certainty. We have ensured that the Purposes clauses of this bill make it clear that the protection of Mäori interests lies at the very heart of this legislation.

Under no circumstances could we accept this issue going the way of the Mäori Fisheries settlement. The Court of Appeal decision had the potential to lead to years of litigation and confusion, that would have been intolerable to us. That's the way the National Party deals with Mäori issues – throws them in the too-hard basket. This legislation is going to lead to a timely, clear result that will protect Mäori interests.

I am proud to support the passage of this bill as amended by the Government SOP.


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