Heather Roy's Diary

The Foreshore and Seabed issue has been ebbing and flowing for most of my time in Parliament and to say that the latest bill has been topical is an understatement. This is an issue kiwis feel passionately about - largely, I think, because the beaches and the sea are part of us all as inhabitants of an island nation.

National’s Marine and Coastal Area (Takutai Moana) Bill (more commonly called the Foreshore and Seabed Bill) was reported back from Select Committee to the House last week and will have its second reading debate in the House shortly.

Some historical background to the Bill is necessary. In 2003, the Court of Appeal heard the case of Ngati Apa v Attorney-General. It held that the Maori Land Court had jurisdiction to decide whether areas of the foreshore and seabed were subject to Maori customary interests. The decision did not say whether the foreshore and seabed could be passed into Maori title, just that it was possible for the Maori Land Court to hear the issue.

In a knee-jerk response to this the Helen Clark-led Labour Government passed the Foreshore and Seabed Act in 2004 which vested all areas of the foreshore and seabed in Crown ownership. This was very controversial amongst Maori - many will remember the Hikoi arriving at parliament - and led to Tariana Turia splitting from the Labour Party and ultimately the formation of the Maori Party.

As part of its confidence and supply agreement with the Maori Party, following the 2008 election, National agreed to review the Foreshore and Seabed Act. National subsequently said they would repeal the Act and planned to replace it with the Marine and Coastal Area (Takutai Moana) Bill that is currently before Parliament.

The Bill keeps Crown ‘ownership’ of the foreshore and seabed but allows iwi to gain rights known as protected customary title or the more substantial customary marine title. These rights can be granted either in Court according to tests set out in the Bill or by negotiations with the Attorney-General.

ACT is the only party to have maintained a consistent stance on the foreshore and seabed issue. We opposed Labour’s 2004 Foreshore and Seabed Bill because we believe that iwi and all New Zealanders should be able to apply to the courts to defend their property rights. When citizens believe they have genuine ownership of property they should be able to test this in a court of law.

However, the Marine and Coastal Area (Takutai Moana) Bill, rather than improving the existing law, exacerbates the problems created by the Foreshore and Seabed Act.
At the more general level:
•The Bill draws on aspects of the co-governance model in some Treaty settlements, by granting Maori participation in statutory processes and by introducing veto rights that will add a further layer of complexity and cost to an already over-regulated society.
•The bill contains ambiguous and undefined terms such as “substantial interruption”, “more than minor”, “mana tuku iho”, and “tikanga”. A Bill that affects everyone should be in plain, understandable language.
•It allows agreements to be reached behind closed doors leaving open the possibility that decisions will be subject to political deal-making.
•There are potentially large wealth transfers involved: what would otherwise be held by the Crown for the interest of all could pass into the ownership of minorities, justified and influenced by the needs of temporary political coalitions.

ACT first raised the possibility that the Bill would allow customary title holders to charge for access to the beach. Despite initially denying that charging could occur the National Party subsequently agreed with ACT that the Bill would be amended to make it explicit that the public cannot be charged for accessing the common marine and coastal area.

In addition, ACT also vigorously opposed the ability for the Minister in charge to negotiate, behind closed doors, customary title agreements which would then pass into law through Order in Council. The National Party now proposes that negotiated agreements can only come into effect through legislation and not by Order in Council. We are yet to see these provisions in context but are guardedly optimistic that our objection to this specific provision has been recognised.

While we are happy to see these concessions we still oppose the bill in its totality. Deals could still be made behind closed doors – deals that might then be simply rubber-stamped by Parliament.

Recently, the Maori Affairs Select Committee tabled its report in a manner that amounted to an abuse of Parliamentary process. Parties were given 16 hours to submit a minority view on the Bill and, more importantly, were not permitted to view the final copy of the Bill before submitting their view. National appears desperate to rush this law through the House for two reasons; to get the unpopular legislation out of the way well before the election and because they fear an imminent collapse of the Maori Party – the only other party supporting the law.

ACT believes that the review of foreshore and seabed law presents an opportunity to right the wrongs of the past. Instead of clinging to unpopular legislation or, as Hone Harawira put it ‘a badly stitched together piece of rubbish’, the Government should listen to what we - and the public - have been saying.

Although the current bill is confusing and complicated the principles on which ACT believes legislation should be founded are simple. The issue is one of property rights and the principle this: those who believe they have genuine ownership of a piece of foreshore or seabed should have their day in court. In short ACT believes the 2004 Foreshore and Seabed Act should be repealed.

For more detailed information on ACT’s foreshore and seabed policy visit http://www.act.org.nz/foreshore-seabed
and a compiled report of Select Committee submissions can be seen at http://www.act.org.nz/files/Waves-Of-Discontent.pdf

Lest We Forget
The Past, Present and Future

As Australian Prime Minister Julia Gillard so aptly described the Australia/New Zealand relationship on her visit this week as one forged in the trenches between soldiers wearing slouch hats and lemon squeezers an unknown kiwi soldier killed in France 95 years ago was reburied beside his countrymen in the Caterpillar Valley Cemetery in Longueval. Two Auckland Regiment collar badges alongside him were the only clue to his identity and his gravestone now reads "A soldier known unto God".

On Monday Private Kirifi Mila was killed in a vehicle accident while he was serving in Afghanistan and while tributes were paid to him by Parliament my daughter was completing her Army Basic Training at her 'Marching Out' Parade with the other Officer Cadet recruits in her course before they embark on their future training.

This collision of events - past, present and future - in a previously unremarkable military week is a reminder of the sacrifices we make for peace and freedom.

ENDS

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