Hon CHRISTOPHER FINLAYSON (Attorney-General) : I begin by thanking my opposite number, David Parker, for his careful and constructive approach to this issue over the last 18 months—I appreciate it. I do not want to dwell on the history; I want to discuss the bill that is being introduced today by the Government, and that I sincerely hope will provide that just and durable solution to a matter that, I agree with Mr Parker, has vexed the country since the passage of the Foreshore and Seabed Act 2004. The Marine and Coastal Area (Takutai Moana) Bill recognises and provides for the association of Māori with the common marine and coastal area of New Zealand and ensures that the legitimate interests of all New Zealanders are protected.
In 2008, the Government agreed with the Māori Party that it would review the Foreshore and Seabed Act 2004. I appointed a ministerial review panel, and that panel concluded that the Act was discriminatory and should be repealed. Since then, the Government has embarked on a programme of extensive consultation. I personally have met with recreational, conservation, and business interests and with local government, iwi, and hapū. I attended many hui and public meetings around the country in places like Taipā and Akaroa. They were very useful meetings indeed. The Māori Affairs Committee will provide another forum for discussion and submissions from the public.
In drafting the replacement legislation, the Government has kept three important principles in mind: firstly, access to justice; secondly, property rights; and, thirdly, the relationship of all New Zealanders with the marine and coastal area. The bill applies to the area from the high-water mark at mean high-water spring tides extending to the outer extent of the territorial sea. It does not nominate an owner for this space; it creates a common coastal and marine area. It excludes areas already in private ownership.
The bill does not take away rights; rather, it recognises and protects the rights of all New Zealanders, including Māori, to the common marine and coastal area of this country. Recreational interests in this area, such as swimming, boating, walking, and fishing, are accepted as a birthright of all New Zealanders. That is why public access, fishing, and navigation in the common marine and coastal area are guaranteed.
We also recognise the importance of ports and essential infrastructure to our island economy. Existing interests and use rights are clearly set out and are protected in the proposed legislation.
Māori interests in the common marine and coastal area are provided for in a number of ways. First, the mana of iwi and hapū is recognised by the status of mana tuku iho. Mana tuku iho is an acknowledgment that iwi and hapū have a traditional role in caring for the common marine and coastal area in their rohe. It allows participation in statutory conservation processes, like the establishment of marine reserves and conservation areas, and in the management of stranded marine mammals.
Second, the bill sets out the means by which customary rights can be recognised and protected. The bill also provides for the right to seek customary title to specific parts of the common marine and coastal area if the area has been used and occupied by a group according to tikanga without substantial interruption from 1840 to the present day. The Court of Appeal in the Ngāti Apa decision discussed the concept of customary title. It stated that it could range from use rights, or what it called usufructuary rights, to something similar to freehold title. This bill provides for the exercise of a number of valuable ownership rights because, once granted, such titles will have the following rights in the customary title area: the right to permit or not permit applications for new resource consents, with limited exceptions defined in the bill; the right to give or withhold permission for conservation activities; the protection of wāhi tapu; the ownership of minerals other than petroleum, uranium, silver, and gold; the right to create a planning document; and the presumed ownership of taonga tūturu, which are Māori cultural or historical objects.
I will say a few words about the scheme of the bill and public access. Creating a common marine and coastal area allows the rights and interests of all New Zealanders to be recognised in the legislation. This has caused concern in some quarters that the right of public access is not a guarantee of free public access, but I can confirm that it is. The scheme of the bill is that clause 27 guarantees the right of access in the common marine and coastal area, subject to the ordinary restrictions, such as ports, naval bases, burial grounds, and measures required for public safety. Clause 60 states that customary marine title exists in particular parts of the common marine and coastal area. Clause 63 prescribes the rights that go with customary marine title. Those rights do not include charging for access. Customary title is different from fee simple title, but that does not mean it is inferior. The rights of customary marine title and the public rights of free access, fishing, and navigation can, and do, coexist. I am satisfied that this legislation recognises those facts and that all New Zealanders can be confident that their interests in the common marine and coastal area are recognised and protected.
Customary rights and customary title can be obtained in two ways: by application to the High Court or by agreement with the Crown after negotiation. The corollary of restoring the right to go to court is to allow parties to reach agreement outside court. The tests that applicants must meet to prove customary title will be the same, whether that title is sought in the courts or through agreement with the Crown. These tests as closely as possible mirror where I think the courts in New Zealand would have brought us were it not for the 2004 legislation: to the principles in the Ngāti Apa decision and the inclusion of tikanga.
I need to point out in this speech that a provision intended to be included in the bill was accidentally left out during its final drafting. The provision should have been included under clause 61 and states that fishing and navigation by third parties does not preclude a finding that a group has had exclusive use and occupation from 1840 until the present without substantial interruption. It is an important part of the bill. Its omission was an error for which, of course, I take full responsibility, and I ask the select committee to consider including it in the version of the bill that it recommends to the House.
This legislation is the result of robust and lengthy consultation carried out in good faith. It restores access to justice. It respects property rights. It recognises the importance of the marine and coastal area to all New Zealanders. I thank all those who have engaged with the Government to date, including iwi leaders and the various commercial and recreational interests I have referred to. I particularly acknowledge the Māori Party. That party has been a strong partner in the development of the bill. I thank Mrs Turia in particular for her tireless work over the years to address the injustices of the past. She is a great New Zealander. I commend the bill to the House.
