Marine and Coastal Area (Takutai Moana) (Customary Marine Title) Amendment Bill

I present a legislative statement on the Marine and Coastal Area (Takutai Moana) (Customary Marine Title) Amendment Bill.

💬 SPEAKER: That legislative statement is published under the authority of the House and can be found on the Parliament website.

I move, That the Marine and Coastal Area (Takutai Moana) (Customary Marine Title) Amendment Bill be now read a first time. I nominate the Justice Committee to consider the bill.

At the appropriate time, I intend to move that the bill be reported to the House by 5 December 2024 and that the Justice Committee has authority to meet at any time while the House is sitting, except during oral questions, during any evening on a day on which there has been a sitting of the House, on a Friday in week in which there has been a sitting in the House, and outside the Wellington area, despite Standing Orders 193, 195, and 196.

In 2011, the marine and coastal area Act established a regime for managing interests in the foreshore and seabed. They carefully balanced the recognition of Māori groups’ customary rights with the legitimate interests of all New Zealanders to walk, boat, and fish our beautiful coastlines. As the Act’s preamble records, up until that point New Zealand had taken different approaches to managing those interests. Those approaches had ended up disappointing many.

One way that customary interests are recognised under the Act is through the award of customary marine title (CMT). Customary marine title comes with valuable rights. These include the ownership of non-Crown minerals, involvement in planning, and the ability to permit or decline certain resource consent applications, with some exceptions. CMT also provides holders with the right to be engaged when new significant infrastructure is proposed. These rights were included in the 2011 legislation on the basis that the test for CMT was exacting and recognises CMT only where customary interests had been maintained with sufficient strength right through to the present day. It’s for that reason that this Government believes that the Act was and is a strong affirmation of Parliament’s role in achieving fairness for all those who have interests in the foreshore and seabed.

Along with holding the specified areas in accordance with tikanga, section 58 of the current Act states that applicant groups need to have had exclusive use and occupation from 1840 to the present day without any substantial interruption. This is evidently a high threshold. However, in making decisions on applications over the last five years, the courts have interpreted the test for customary marine title in ways that have diluted some of these strong requirements. The Court of Appeal most recently has interpreted the CMT test in a way that effectively did away with the exclusivity requirement and the need for continuity, and significantly reduced the scope of what can constitute a substantial interruption.

I respect the role of the courts as one decision maker under this regime and the challenges in interpreting the CMT test in the context of the wider Act, but for this regime to work as Parliament intended, the balance between the strength of the CMT test and the rights that go along with it needs to be maintained. I note that the Crown has appealed the Court of Appeal decision to the Supreme Court. However, with many applications currently in progress, we can’t afford to wait to address the Court of Appeal’s error in its interpretation of the test.

The purpose of these amendments is to restore the exacting nature of the test for CMT and to set aside the Court of Appeal and earlier High Court interpretations of the test that strayed from the meaning Parliament intended. The amendments provide significant clarity on how decision makers should implement the CMT test by expanding on the same test elements that were already in the Act. The amendments set the literal wording of the test above other framing sections of the Act, like the purpose and the Treaty of Waitangi sections. They further define what is meant by “exclusive use” and “occupation”—that it is both an intention and an ability to control an area to the exclusion of others. The amendments provide direction to decision makers on when they can draw inferences about the nature and extent of use and occupation. They clarify that any factual, substantial interruption can interfere with CMT, not just legislated activities. They clarify that applicants are required to prove all the elements of the test and clarify that the Act doesn’t revive customary interests that were previously extinguished, with the exception of customary interests extinguished by the Foreshore and Seabed Act.

Altogether, I consider this will reduce any ambiguity about the nature and strength of the test for customary marine title and ensure that there is an enduring balance between the strictness of the test and the rights that go along with an award of CMT. The restored test will be applied to any applications that were still undecided at the time of my policy announcement on 25 July 2024. This retrospective application is necessary to prevent further cases from being decided under an interpretation that doesn’t reflect the original intention of the Act.

I recognise that this causes some difficulties for cases that are in the process of being decided, and that is why I have proposed this legislation be progressed as a matter of priority. These amendments will not affect cases that already have decisions, including those that are subject of appeals.

I note the feedback I received from applicants and the report of the Waitangi Tribunal, but I stress that these changes are necessary and pressing. The marine and coastal area Act sets up a very deliberate regime that strikes a delicate balance between interests. The sole purpose of these amendments is to ensure that balance continues to be struck and is an enduring one for Māori and for all New Zealanders.

The question is that the motion be agreed to.

Thank you, Madam Speaker, and thank you for the opportunity to stand and speak on this particular bill. To set out the Labour Party position from the outset, we will be opposing this bill.

The Minister has raised a number of matters that are of a delicate nature. What the paperwork that’s been provided to the House and tabled in the House clearly makes a point of recognising is the lack of consultation and the lack of engagement with Māori.

In 2011 when the legislation was considered and passed in this House, it offered two legs for those who wish to prove their customary title. One of those legs was a direct negotiation or an ability to directly discuss these matters and, should those discussions progress, negotiate with the Minister of the day. The other way was, of course, through the court. The court gave the opportunity for Māori—in particular Māori but not just Māori; in fact, for all New Zealanders, as the Minister has already made clear, in that it does strike a delicate balance between the rights of Māori and all New Zealanders.

What it did was it allowed people, and Māori in particular, and iwi who were going through settlement at the time or were in negotiation with the settlement, the ability to prove customary right through the court. Now, simply because a decision, as highlighted by the Minister, doesn’t sit well with this particular Government and the policy that this Government has signed up to, this doesn’t mean that those who wish to go to court to prove their customary title rights should be stripped of that ability to do so.

I am of the clear opinion that when the original legislation was passed in 2011, because of the date that was set when all applications had to be in by, what that meant was we saw a flood of applications to make sure that we can test that customary right through the court. Of course, that put huge pressure not just on the courts but also on those who wish to explore that avenue as per the legislation, which means that there was a flood of applications. It meant that the court processes struggled to deal with it. It meant that it comes at great cost for Māori and for those who do wish to enter into that pathway. What we’re seeing here is that ability to be able to test that right in court taken away.

I’ve already said that the documentation that’s been provided to this House has made it clear that this Government refuses to speak to Māori on such important matters. What it further does is prove that all of the policies that affect Māori have gone through a truncated process, as the Minister has already outlined in his speech. The proposal to have this done by 5 December—if I recall the date correctly—of this year once again shows that when it comes to matters relating to Māori, it’s OK to have a truncated process, and it’s OK not to consult with Māori, the very people who will be impacted the most by these decisions.

Sadly, what that also does is it creates a vacuum of misinformation. What that means is that it emboldens some groups to be able to point the finger at Māori and to accuse them of transgressing on their rights here in this country. We’ve seen it in the past. We’ve seen it in the most very recent past by Hobson’s Pledge, who have made a point to say that Māori are here to take away people’s rights to the foreshore and seabed. That’s what these rushed policies do. They create an environment of misinformation that continues to divide our country. Because we’re not going to consultation and because there hasn’t been an opportunity to debate these matters properly as there should be, we are going to continue to support the notion of misinformation that happens in this country and continues to divide our people.

As we progress with this bill in the House, we are going to be challenging it at every single point. We want to make sure that those who do get the opportunity to present to the select committee on this bill will be able to do so and not have their ability to do so hindered in any way. We want to make sure that all of the people that this bill relates to will get their opportunity to be heard, and we will be continuing to oppose this bill, because—and once again I make the point—this bill takes away the right of people to be able to test their matter in the court, and that should never be a place where we find ourselves in this country, and we should trust that system to have the right outcome.

Thank you, Madam Speaker. There is a sinister symmetry to the order of bills in the House today: the confiscation followed by the exploitation. The bill before us today, the takutai moana amendment bill, is the raupatu—the confiscation—and it will shortly be followed by the Crown Minerals Amendment Bill, which is the ban-on-oil revocation bill, and that is the exploitation.

I wonder at the idea that we are in a post-colonial era, because I think the test of whether we are is to answer the question: are the patterns and processes and means of colonisation still being practised? First, confiscation, followed by exploitation, is part of the long habit of colonisation. New Zealand’s first oil well was drilled in 1865 in Taranaki on land confiscated from Māori—

💬 DEPUTY SPEAKER: That’s true, Mr Abel, but this is the next bill that you’ll—can you speak about this bill?

I am.

💬 DEPUTY SPEAKER: Yeah.

I am speaking about the takutai—

💬 DEPUTY SPEAKER: I know you’re speaking about them both, but then you’ve gone on to oil. So can we please bring it back to the moana?

Sure. I guess, Madam Speaker, can I clarify: am I able to speak about what I believe are the intentions underlying the takutai moana bill, which is—

💬 DEPUTY SPEAKER: Yes.

—to extinguish Māori customary rights so as to facilitate exploitation?

💬 DEPUTY SPEAKER: Yes, and that’s related to the bill. So that’s—you are.

Yes, that is what I’m speaking of. Thank you, Madam Speaker. I would say that that is part of the long habit of colonisation: you have to first acquire the resources before you can exploit them, and so the confiscation comes first before the exploitation.

The whole invasion of the Waikato by Governor Grey was to access the land that Māori were very effectively being productive on—highly productive land as far as the eye could see; exports to California and to Australia. Grey built the Great South Road, and he came and took that land, and then it was exploited and handed out indeed to the very troops who’d committed the atrocities by which the land was acquired.

We have spoken here in this House with grave remorse on the Treaty settlement speeches about the wrongness of those raupatu, but like an apologetic, recidivist abuser who says, “I’m sorry, I won’t do it again”, here we are. This Government is doing it again. This is a raupatu of Māori customary rights. Twenty years since the foreshore and seabed legislation, there is a sinister symmetry today in the House. In 2004, the foreshore and seabed extinguished Māori rights and asserted Crown domination of the marine coastal environment. Shortly after, in 2006, a swathe of new oil and gas exploration permits were issued by Harry Duynhoven, the Minister at the time. First confiscation, then exploitation.

Those same permits were relinquished because of the campaigns by members of the community and iwi and alliance who got those oil exploration companies to relinquish their permits, one by one, against the public resistance. The ocean is a taonga to tangata whenua Māori; access to it is their right under tino rangatiratanga. The destruction of nature is part of the pattern of colonisation. Here, today, is yet another bill that takes away that fundamental customary right of Māori to their takutai moana and makes way for its exploitation and its destruction. I want to read from the finding of the Waitangi Tribunal on this piece of legislation. “At present, the Crown’s actions are such a gross breach of the Treaty that, if it proceeds, these amendments would be an illegitimate exercise of Kāwanatanga. We caution the Crown that, on the strength of the evidence we have received, to proceed now on its current course will significantly endanger the Māori-Crown relationship.”

Now, Te Tiriti o Waitangi is fundamentally about relationship. If you continually eat away and take a sledgehammer to the foundation of our nation in that founding agreement, you fundamentally harm the basic relationship on which our nation is built. I implore this Government to stop with these destructions and the undermining of tino rangatiratanga for Māori. It is for the harm of all New Zealanders that this Government proceeds with those actions, and we will not be supporting this raupatu 2024. Kia ora.

Thank you, Madam Speaker. I rise on behalf of ACT to support the bill that is being introduced by the Government today. There is a long and significant history, and, in the words of the member Peeni Henare, it has, yes, been a delicate issue for a very long time. Whenever an authority takes property rights, that is a serious, serious issue, and no matter how long ago rights were taken, they need to be addressed and amended in whatever way both parties can come to agree to.

Sometimes, New Zealanders don’t see eye to eye on some of those things, but in this particular case, a customary marine title has got certain elements of it that grant rights that are exclusive compared to others, and all rights around property are to the exclusion of others. When you have a customary marine title, it’s a non-transferrable title of property rights. If people are happy to take that, then that’s one thing, but it brings along with it some rights and responsibilities around the refusal of things happening in that area, on that seabed, in that marine area. Now, that is something which should not be taken lightly, and any Māori organisation or group who wishes to apply for a customary marine title must take gravely the responsibility that comes along with that ability to refuse, because New Zealand is a place that needs to grow. We need to have access for all New Zealanders to feel like they are part of this country, where they can go about their business or their leisure, and where they can enjoy something that we are blessed with, which is our marine and coastal environment—

💬 Steve Abel: And the Waitangi Tribunal said that was not threatened.

No, no, look, the balance needs to be taken, and this Government has made a step here, because in the past, the Government has created a test for customary marine title, and there’s been some decisions made in the courts which New Zealanders have questioned and which this Government does not necessarily see eye to eye on. After court decisions have been made—

Tākuta Ferris: It doesn’t see eye to eye with the court—its own court.

—we’ve had to come to the highest court in the land, Mr Ferris, which has come along and said, “We are going to clarify what Parliament has already said, and we’re going to need to have some targets, some barriers which need to be crossed, exclusive use and occupation since 1840—that is a fair compromise. Some people will say it’s gone too far, some people will say it hasn’t gone far enough, and I can see both sides of that argument, but this is a country that has to come together, that has to find a way to heal the issues that have come up in the past.

This is, again to quote the Hon Peeni Henare, a delicate issue, which needs to be taken with tact and respect, and I hope that New Zealand can come together and discuss this as the adults that we believe we are. Thank you.

Thank you, Madam Speaker. It is a pleasure to rise on behalf of New Zealand First and speak to the Marine and Coastal Area (Takutai Moana) (Customary Marine Title) Amendment Bill. Apologies, I have a bit of a throat thing going on—if my voice does break or I go into a coughing fit, my apologies in advance.

The Marine and Coastal Area (Takutai Moana) (Customary Marine Title) Amendment Bill—the aim of it is to amend the 2011 Act to provide much more clarity and certainty around how customary marine titles are determined now, particularly in response to recent legal judgments, Re Edwards, a case and point, that have created some confusion, some ambiguity, about Parliament’s original intent. This amendment bill is about, as Minister Goldsmith in his first speech this morning said, reducing that ambiguity of the test for customary title.

New Zealand First is supportive of this. It fulfils a coalition agreement between New Zealand First and National, so, therefore, it is a very much a pleasure to rise to speak to this. We believe that it addresses New Zealand First’s focus on the sovereignty of Parliament and on fairness and transparency in legal processes. We’ve heard already in speeches today a lot of white water coming from across the other side of House, a lot of victimhood-sounding white water. Undoubtedly, they’ll be pulled down by the undercurrent if they keep that up, because, really, this enables certainty and clarity, which is most important to ensure the sovereignty of Parliament.

We must also ensure that the fairness in the process of determining customary marine titles by requiring evidence of that continuous exclusive use of those marine areas, rather than allowing claims based solely on just cultural or spiritual associations. It is about correcting these legal loopholes that have recently been highlighted. We support the changes to close those loopholes that could allow groups to claim custom marine title without proper evidence of that uninterrupted occupation. Importantly, also, the bill reinforces that principle that the burden of proof lies with the applicant group, ensuring that those claims to marine and coastal areas are based on robust evidence. Therefore, Madam Speaker, I’m pleased to commend this bill to the House.

Tēnā tātou. Tēnā tātou i tō tātou takutai moana. Ka tīmata ake ahau i te ōrokohanga mai o te noho a te iwi Māori i runga i ōna whenua, i runga i ōna moana.

Te mana tuku iho o taua nōhanga mai i whakaūhia i roto i ngā māramatanga, ngā mōhiotanga, ngā mātauranga, ngā mahi a ngā mātua tīpuna; kaua i roto i tētahi tuhinga. Kaua ko te Whakaputanga, kaua ko te Tiriti o Waitangi, kaua ko tētahi ture nō tēnei Whare.

So, ara nei au ki te tuku i ngā kōrero a Te Pāti Māori mō tēnei raupatu, ka tika. Tēnei raupatu, ka tika. I tīmata, i ōroko mai i te tau 2004, nā te ringaringa o te Pāti Reipa. Āe.

I tohea e Te Pāti Māori, i whakamāmāhia i roto i ngā kawenga o te Nāhinara i raro i a Key. Engari kīhai te mana o te Māori i hoki.

Engari ko tāku he kī atu te Whare nei, kīhai te mana o te Māori i ngaro i te tuatahi.

[Greetings to all of us. Greetings to us with respect to our foreshore and seabed. I will begin with the origins of the inhabitation of the Māori people on their own lands and seas.

The bequeathed authority of that inhabitation was confirmed within the insights, the knowledge, the understanding, and the activities of the forebears and ancestors; not within any document—not the Declaration of Independence, not the Treaty of Waitangi, and not any law from this House.

So, I rise to offer the opinions of the Māori Party regarding this confiscation, that’s right. This confiscation, that’s right. It began, its provenance came in the year 2004, by the hand of the Labour Party. Yes.

It was contested by the Māori Party, it was softened by the actions of National under Key. But the mana of the Māori people was not returned.

But what I say to this House is that the mana of the Māori people was not initially lost.]

If I go back to where this trouble all started, just to clarify a few things up for some people in this House, in 2004, the then Labour Government passes a bill that they were told not to. They directly went and extinguished the right that Māori had that pre-existed any other agreement, the right that Māori had pre-existed the declaration of independence, the right that Māori had pre-existed Te Tiriti o Waitangi, and the right that Māori had pre-existed any law that this House ever made. That right is still there today, regardless of what piece of paper has some information on it about who owns the takutai moana.

That happened in 2004. It’s one of the biggest land confiscations in this country’s history. I’ll tell you how big it was: 15,000 kilometres of coastline, 12 nautical miles out. That’s 333,360 kilometres confiscated in one go in 2004—not 1904 or 1804, but 2004. The Pāti Māori comes along and fights for that and gets it dumbed down a little—

💬 Hon Willie Jackson: Wasn’t John Tamihere there then?

TĀKUTA FERRIS: Yeah, he was there—bloody hua. It gets dumbed down a little to become the MACA, the marine area and coastal area, claims. Gareth Morgan describes this as a stroke of Key genius: we’ll say that nobody owns it and we’ll say that the Māori have to get over this test—quite a high test—to prove that they’ve been there for ever. Well, it was quite a high test, and what do you know? Māori got over it. Oh, well, we can’t have that, can we? No, no. Along comes the new National Government and says, “Right, we’ll just hike it up some more.” You just couldn’t write a movie script about this stuff.

I hear the Minister going on about how customary marine rights come with valuable marine rights—well, yes, that’s right, and we know that those valuable marine rights are what you’re most concerned with—and that the test will be exclusive use. Well, I consider the Government to be an applicant in putting their case forward to have ownership of the foreshore and seabed, the takutai moana, in their name. Why don’t you come and prove to us that any iwi rohe moana has ever shrunk since 1840? They haven’t, and iwi have the right to go anywhere within their rohe moana uninterrupted, unimpeded today.

💬 Hon Paul Goldsmith: Nobody’s stopping that.

TĀKUTA FERRIS: Yeah, yeah, yeah, yeah. And now Parliament’s the judge of the judicial system, because those cheeky Māoris managed to get over all of your hurdles and pass the test. It is ridiculous. The balance, eh? The balance that the Minister speaks about, a delicate balance between all parties who have an interest in the foreshore and seabed, with the caveat that that’s based solely on what the Minister and the Government think, not what the original constitutional rights holders—tangata whenua, mana whenua, mana moana rights holders—think. We’ll just leave them out of the deliberation.

Well, away you go. Keep going. Keep going down your merry road. It’s clearly evident where that road leads to. Oh, the sovereignty of Parliament? Parliament is sovereign by virtue of an Act of itself, not by the sovereignty of the land or the people. We do not commend the bill at all.

Thank you, Madam Speaker. Obviously I support this bill. As the chair of the Justice Committee, I look forward to considering it when it makes its way through to us shortly—the first of five new bills we’ll be possibly considering over the next wee while. I probably did comment to the Minister that members of the Justice Committee were hungry for work, and he took that to heart and has obliged. I look forward to being able to consider this bill when it comes to us in a matter of moments. Every member in this House should be supporting this bill, and it is for the single reason that this bill reasserts parliamentary supremacy and reasserts the sovereignty of this House.

The background of the bill is very, very straightforward. In 2004, this House, under a Labour Government, enacted the Foreshore and Seabed Act in response to a judicial decision, the Ngāti Apa. That Act legislated over the top of Ngāti Apa. In 2011, this House, this time under National, enacted the Marine and Coastal Area (Takutai Moana) Act to repeal that Foreshore and Seabed Act. The Marine and Coastal Area Act (MACA) contains a clear test for obtaining customary title. Parliament’s intent when it passed that Act was very, very clear from the content of the words in the statute and the context of the time in which it was enacted when the law was passed. Since that point, the courts have chosen to interpret MACA in a different way; in a way which we believe is contrary to the intention of Parliament.

The constitutionally proper response that every single member in this House should support is for Parliament to pass the law and make its intent clear to the courts. That is the constitutionally proper way of approaching this issue, and that is what we’re doing today, regardless of what members think of the substantive content of the bill. Any member of this House who takes their role seriously as defenders of parliamentary sovereignty and as defenders of the democratically elected branch of Government will support this bill. It is Parliament’s role to make the laws in this country. It is Parliament’s role to unmake the laws, and that is what we’re doing with this bill today.

I’ll just make one comment because we may receive a few submissions on this bill. I would encourage those individuals who do choose to make a submission to use the parliamentary function when doing so. It makes the job of the House and the job of the clerk of the committee much, much easier when submitters use the formal function through the parliamentary website. Those individuals, those groups, those organisations out there who are gathering support and gathering submissions, whether they be form submissions or whether they be individualised submissions, please use the parliamentary process. It makes the job a lot easier. It means we can hear more submissions throughout the whole process. I encourage people to have their voice heard.

This is the bill that is the appropriate way to respond to the relationship between this House and the judiciary. I commend it to the House.

Tēnā koe e te Māngai o te Whare. Thank you very much, Madam Speaker. It is a real shame that this Government has not learnt from the mistakes of the past. The Ngāti Apa case divided New Zealand and caused real issues in our country, and it is an absolute shame that this Government is repeating history and making the same mistakes again. This legislation, the Marine and Coastal Area (Takutai Moana) (Customary Marine Title) Amendment Bill, is yet another punch at Māori. It exemplifies how this Government sees Māori. And the fact that the Minister responsible for this bill, the Hon Paul Goldsmith, consulted the fisheries industry before even talking to hapū, whānau, or iwi exemplifies that there is no care factor in relation to the ongoing Treaty relationship.

The tribunal’s Takutai Moana Act 2011 Urgent Inquiry Stage 1 Report comes after the Government announced their plans to make any customary marine title harder for iwi to get, after a court ruling made it easier. And it again goes to the heart of a Government that does not respect the judiciary and does not understand what the separation of powers means. The report considered how Treaty-compliant the policy development process was and whether the Government had, in fact, amended the takutai moana, and the proposed amendments and whether or not they would cause prejudice to Māori. The tribunal found that the Government dismissed the official advice they were given—not untypical of this Government; failed to consult with Māori—also pretty typical of this Government; and breached the principle of active protection and good government by failing to properly demonstrate Parliament’s original intent and seeking to amend the Act before the Supreme Court could even hear the matter.

I think it is important that New Zealanders take note, and I support the words of the previous speaker: that all those people should submit to the Justice Committee regarding this bill. In fact, all of those who take offence at what the Government is doing in this space, we welcome your voices and your views at the Justice Committee, as this is your opportunity to object to this legislation. The report from the Waitangi Tribunal said, “the Crown’s consultation”—this is what the tribunal said—“with commercial fishing interests … while failing to consult with Māori … [in itself was a] breach of the principle of good government.” But, as we know from this Government, they’re going to rewrite the Treaty principles anyway, so maybe they’ll rewrite that one too! All this further erodes the relationship between Government and Māori, and it causes division within New Zealand society, but this Government doesn’t seem to care about that.

This is yet another act on behalf of this Government that hits at Māori, Māori rights, and Māori mana: disestablishing Te Aka Whai Ora; repealing smoke-free legislation, yet still turning up for Smokefree Rockquest; repealing section 7AA from the Oranga Tamariki Act; cutting Oranga Tamariki preventative services that would help whānau to cope and to prevent children from being uplifted; removing te reo from Government departments; introducing a Treaty principles bill that will attempt to rewrite the Treaty itself; attempting to disestablish Māori wards even though they are fighting back; fast-track approvals that ride roughshod over the Treaty of Waitangi and environmental principles; cutting funding to Māori housing; and Te Arawhiti, which is currently being restructured.

This is the long list of slights and punches against te iwi Māori by this Government in the short time that it has been in power. And what we hear time and time again is that the election delivered a mandate for them to be able to do anything. That, to other New Zealanders, smacks of being self-entitled, condescending, and born to rule, and it is disgusting that we have a Government that has absolutely no care factor for the ongoing relationship of the Treaty of Waitangi, which underpins our very country, and it is sad to have to stand and watch the mistakes of the past being recreated again and again by the shortsightedness of this Government.

I rise to add my whakaaro to this conversation we’re having today on the first reading of the Marine and Coastal Area (Takutai Moana) (Customary Marine Title) Amendment Bill. This bill has been introduced by our Minister for Treaty of Waitangi Negotiations, the Hon Paul Goldsmith, and it is going to the hard-working Justice Committee, chaired by my friend here, James Meager.

Essentially, what this amendment bill seeks to do is this. We’re going to be amending section 58 of the Marine and Coastal Area (Takutai Moana) Act 2011, and, essentially, we’re going to be providing clarity on Parliament’s original intent, especially in response to the Court of Appeal’s decision on a recent matter from 2023. Reducing ambiguity is one of the main drivers behind this amendment bill as to the test of customary marine title.

I would like to say that it’s been mentioned in this House today that it’s a shame that we don’t learn from the mistakes of the past, and here I’d like to highlight something that’s been highlighted earlier that happened in 2004. It’s called the Foreshore and Seabed Act 2004, and I know from speaking to some of my dear friends that are now in their 70s when they talk to me about the impact that that bill that was passed back then—what it has had on them, and on their outlook on the party that passed that bill for the rest of their lives. Yes, we do need to learn from the mistakes of the past, and I do want to reiterate that this Government is not rewriting the Treaty principles, so it’s not fair for that to be said in the House when that’s not what this Government is aiming to do.

As I said, we are speaking on the Marine and Coastal Area (Takutai Moana) (Customary Marine Title) Amendment Bill. It’s part of the New Zealand First and National Party coalition agreement, and we commend this bill to the House.

Yes, learn the mistakes of the past. That’s correct. That’s been made very, very clear, I think, today. We weren’t going to talk about 2004, but since it’s been brought up so much, I want to thank the ACT Party for supporting us in 2004. Hide, believe it or not, I say to my Te Pāti Māori friends, was one of the ones who came out and supported Māori in terms of property rights. It’s probably the only good thing he did over there in the ACT Party, but thanks very much for that. I remember it well, having been part of the process here in Parliament and leading our Māori broadcasting team up here as we, I suppose, had to confront what was happening because our beloved party had gone down that track. They’ve done a lot of wonderful things in that time, but this was their biggest mistake—of that, there is no doubt. Some of us thought we’d never ever join Labour again, but we did because we saw the new team coming in.

When you talk about learning from mistakes, Labour learnt from those mistakes. There’s no doubt about it. We’ve got a new team, and you saw Jacinda Ardern come in. The problem at the time was—and it was sad because it was such a racist strategy going on from Don Brash and National. They want to front up to the past too. We had a National racist campaign happening from Brash and his mates. Sadly, our mates in Labour panicked at the time, and we came out with this rotten legislation led by the Māori Party president, John Tamihere (JT) in 2004. And Te Pāti Māori know that—John Tamihere led the line in terms of the foreshore and seabed. We all like to have selective memory loss at times.

JT led that; Māoridom rallied against it—we said we had rights and we wanted access to the courts. That was denied. Then the courts were opened up, and now we’ve got an opportunity in the court, and now we’re saying no to the courts—we want to turn it all around. I heard Mr Meager saying that this is great and every member in Parliament must support this because it gives Parliament, Government, their sovereign rights. Here’s the problem. What happens if you’ve got a few maniacs in Parliament? That’s the problem when the mad people take over. You see, you might get redneck right-wing nutjobs.

💬 Hon Paul Goldsmith: Oh, come on.

No, this is a fact. Let’s make this sovereign because Parliament knows best, but what if Parliament has got nutjobs? What if you get a redneck racist party? Imagine a redneck racist party turning up and going to Minister Goldsmith, who found his Māori language last week. He forgot it three weeks ago, but, last week, he became the great supporter of te Wiki o te Reo Māori. This is the problem that we have—a lot of our people are still not trusting us. I can’t say I don’t trust Parliament, because I do, although I’ve got a few questions at the moment. I’m still sort of trusting us, but when the mad people take over, what then? That’s what the people out there are saying. What do Māori want to do?

💬 Jenny Marcroft: That was the last Parliament.

You be quiet, Jenny Marcroft. We know that Winston Peters’ line back in 2004 was to deny Māori the opportunity to go to the court, right? Then he changes. Shane Jones changes. You’re a bunch of hypo—no, I won’t go down that track. What Māori are saying for the naive Jenny Marcroft over there—what all her relations are saying—is let’s trust the court system. That’s what they’re saying, and it’s been denied.

That’s what our people are struggling with, and we in the Labour Party are saying, “Let’s just go through the process.” Let’s go through the process and give our people an opportunity. We were rapt with what the Court of Appeal did a year or so ago, because the test of the threshold is far too high—far too high. It gave people an opportunity to access their rights—that’s what the court’s all about. The tribunal has said that this is a clear breach from this Government in terms of Treaty rights.

Why don’t we just follow that process? Let’s not turn on the courts when it suits us, Jenny Marcroft and Shane Jones. Let’s back the courts. Let’s back the judges, because otherwise we end up backing maniacs and, sadly, there are too many maniacs in the House at the moment. Kia ora, Madam Speaker.

It’s always a pleasure to listen to the member across—

💬 Jenny Marcroft: Special!

Ha, ha! I stand in support of the Marine and Coastal Area (Takutai Moana) (Customary Marine Title) Amendment Bill, on its third revision.

This legislation, beginning in Helen Clark’s Labour Government, created the Foreshore and Seabed Act in 2004, which vested the ownership of the foreshore and seabed in the Crown, extinguishing Māori customary rights and prescribing a very narrow opportunity for limited customary rights to be recognised. The 2004 Act was repealed in 2011 by the Marine and Coastal Area (Takutai Moana) Act, establishing a special category of land for the marine and coastal area and assigning a no-ownership status to the area, which paved the way for enabling whānau and hapū and iwi to have the ability to seek legal recognition of their customary interests.

The amendment bill deals with the Court of Appeal’s decision that appears to have misinterpreted the 2011 Act. The scope of the court’s decision making is, really, to apply the law as it stood at the time a claim is made, and on this basis, it seems that there is an imperative for this amendment bill to restore Parliament’s original intent in the making of the 2011 Act. What the amendment bill does now is to clarify and further define the “exclusive use” and “occupation” and “substantial interruption” words of the 2011 Act so that there is added clarity, and, with the added clarity, we will have the opportunity to align marine titles more closely with tikanga and address concerns raised by the courts. The new provisions establish a more transparent process and a more clearly defined pathway for claims to be decided. I commend this bill to the House.

The question is that the Marine and Coastal Area (Takutai Moana) (Customary Marine Title) Amendment Bill be considered by the Justice Committee.