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

I move, That the Marine and Coastal Area (Takutai Moana) (Customary Marine Title) Amendment Bill be reported to the House by 5 December 2024, and that the committee have authority to meet at any time while the House is sitting, except during oral questions, during any evening on a day in which there has been a sitting of the House, on a Friday in a week in which there’s been a sitting of the House, and outside the Wellington area, despite Standing Orders 193, 195, and 196.

As referred to earlier in my speech, the courts have interpreted the test for customary marine titles (CMT) in ways that have diluted some of the strong requirements that were originally intended by Parliament, which the Government is restoring. All parties to applicants for CMT that are currently in progress have been faced with legal uncertainty for almost a year since the Court of Appeal’s decision. We can’t afford to wait any longer and we don’t think that it’s particularly fair to all involved, which is why we are urgently progressing these amendments. I’m advocating certainty for everyone as soon as possible. The proposed amendments to section 58 of the Marine and Coastal Area (Takutai Moana) Act are complex and the Justice Committee is most appropriately equipped to deal with it. I have every confidence in the ability of the Justice Committee, chaired by Mr Meager, to do so.

The question is that the motion be agreed to.

Thank you, Madam Speaker. I have an amendment to move. I move, That the motion be amended to replace the words “5 December 2024” with “5 June 2025”.

I wish to explain the amendment, and I seek the Minister’s agreement to it. The reason for the amendment is that his proposed timing—that we have only just learnt about now and that was not made available to the Opposition earlier—is not enough time, given a very specific reason from the committee’s consideration of this bill in 2011.

In 2011, the committee’s progress with a similar amendment to the law at the time was significantly stymied by the short time that the Parliamentary Counsel Office had to prepare a revision-tracked-changes version of the bill. At that time, the committee—and it was the Māori Affairs Committee that considered it at that point; and my colleagues will return to that point—members of which included the Hon Kelvin Davis and Tau Henare, was not able to get a revised version of the bill. There were a number of changes which were sought by the Opposition, which were largely agreed cross-partisan. When a committee does not have the time that it needs to make the changes to the law that are suggested, it then comes back to the House at the committee stage to consider those amendments. Those amendments were not able to be then considered properly at the committee stage. They should have been able to be considered at the select committee. That is one of the reasons why the extended time frame is really important, to allow those changes to be made in a considered way that we can build cross-partisan support around.

Madam Speaker, you will remember that in 2011 it was a goal of the Government to establish some cross-partisan support. We’re not all going to agree with this bill—Labour members do not agree with this bill—but there are improvements to the, essentially, respect for the constitutional arrangements that this House has with our courts, especially the superior courts, which will be able to be improved at a select committee process. Four thousand submitters submitted in 2011, in a similar kind of time frame. Many were ignored. There was not enough opportunity at that point to hear the submissions, and so the committee needed to go through a triaging exercise of who they would hear from. They heard from the legal experts. At that time, they heard from the judiciary, who, almost unprecedentedly, made a submission through the submissions process and were able to offer pretty extensive commentary through their written submissions to that process.

This will happen again. This committee, the Justice Committee now, will be asked to prioritise, essentially, hearing from ordinary New Zealanders who have seen the ads in the newspaper—they have seen Hobson’s Pledge’s ads and they think that the beaches are being taken away from them. There will be people who want to come to this committee who are confused, but then there will also be legal experts who do not want to see a repetition of what happened in 2011 and, prior to that, 2004 and 2005, when legislation was made to extinguish the rights of claimant groups. There are 200 proceedings afoot that are being extinguished by this bill—200 proceedings that have multiple applicants. In the case of Te Whakatōhea and Te Ūpokorehe, there are 15 applicants in that one case. And there are 200 of those around the country.

There are a number of people here whose personal rights are being extinguished, and if the select committee does not give time to those submitters who come in good faith to parliamentarians around the country and say, “It’s not just remote for me; this is my family land that I am having my rights taken away from, my ability to bring a proceeding in the court, which are common law rights that have existed since 1840.” These are not rights that were created by any legislation in this House. If the committee is to deny their ability to make a submission in favour of legal experts, in favour of the people that they need to hear from most, then that would be a sad day for our parliamentary process, which is meant to hear from people who are affected by legislation. That is our primary job as parliamentarians: to understand the concerns of the communities who are affected by the law that we make about them and about their property.

I’m speaking to this and I’m urging the Minister to consider taking this out until June to give those applicants time to prepare their submissions, to take legal advice—because they all have counsel because of the system we have set up for them. We told them—the National Party told them in 2011—that they had a reasonable expectation to their day in court. These people are represented by lawyers. They need time to consider what their legal rights are. They need to make a submission in this process. It’s not fair to expect them to do that before the end of the year. When the Minister talks about the need for urgency on this to give claimants certainty, there is absolutely a need for certainty here, but the creation of uncertainty is because not only will this process not give people their day in court but they are also being denied their day in the select committee room to make their case to the parliamentarians who, in this case, are acting as judges, are acting in a judicial capacity, because they are taking away the appellant rights of hundreds of claimant groups around the country. It’s only fair to be able to extend that portion of time.

The reason I have suggested the June date is because the last time this was referred to a committee, in 2011, that is the sort of time frame that was allowed, and that was agreed. Everyone in this Parliament really understood that there was going to need to be a good allocation of time to be able to hear from submitters. This was not the Labour Party or the Māori Party giving a special amount of time to hear something that it felt was in some way political and was beneficial to the politics of the day; this was parties getting around the table and appreciating how sensitive this issue was, not only to Māori but to those landowners who are affected by these rights that have not been extinguished by the Crown’s radical title, because there are many landowners in New Zealand who are in that situation. It’s not simply iwi and hapū and whānau. It was appreciating that these things take time to work through. Even though Labour members came back to this House—the Hon Kelvin Davis came back to this House, and he questioned the process because those 4,000 submitters had not had an opportunity, all of them, to speak. Where they were asking for specific conversations with the select committee, like at the top of the South, where there are specific interests in the foreshore and seabed in the marine and coastal Act, the committee had not been able to go there at that time. There was still a recognition that there was a need for that.

Now, I’ll turn to the question of the referral to the Justice Committee. The Minister has set out why this is: there are a number of complicated legal issues here. He said they were complex. He said that the Justice Committee was best placed to do this. These issues are the same issues that this House dealt with in 2011, when similar legislation was referred to the Māori Affairs Committee. The Māori Affairs Committee is charged by this House with all affairs which are of relevance to Māori. This is core bread and butter business for that committee, and as a committee chair of the Māori Affairs Committee, I am proud of the way that that committee operates as a bipartisan and cross-partisan forum for building not only debate about those issues which are important to Māori but also about finding the common ground. If we don’t use that Māori Affairs Committee to do this, we lock ourselves out as parliamentarians of a way to find a way through this, in a way that we can all hold our heads up, because we come to this House as parliamentarians elected by our electorates. But we are Māori. We are Māori politicians, who owe a duty to consider those rights of iwi, of hapū, of whānau, and the aspirations of rangatahi Māori, who look at us and go, “Maybe I could do that job one day.”

We owe it to those people who see us as leaders in our community to hear this out in the only forum we can do that, which is the Māori Affairs Committee, the only forum which is designed for a discussion of not only the common law, of the legislative powers of this House, and of tikanga Māori. That is the appropriate way to do it, and it is a huge shame that we have moved from a situation where the National Party in 2011 would refer this legislation to the Māori Affairs Committee—that they had parliamentarians who they respected in that committee to find a way through, who were representatives of their communities but were also Māori parliamentarians. We have that now. The National Party has that now. They should use the Māori Affairs Committee in the same way. We should not be using the Māori Affairs Committee only to consider Treaty settlement legislation. That should be a committee where we can find a way forward and we can find common ground, and this is a perfect example of that.

Mr Speaker, you can hear that I’m upset about this. I am upset about the process here. I am upset that we are not giving people their day in court, and I am upset that we are not giving people their day in the select committee. We should extend the timing here. Minor parties who are giving this their support because it is part of the coalition agreement should consider an extension of time, simply because it is the right thing to do.

Thank you, Mr Speaker. I would like to, first, speak on the referral motion before moving on to my colleague Arena Williams’ amendment.

Now, in terms of the referral motion, I think one of the things when it comes to the date that’s been really perplexing is the Government’s consistent need to shorten the select committee process. As we understand it, the select committee process is, on average, four to six months—six months, preferably—but over here, we’re seeing that, with this process, we’re having a referral motion date of 5 December. That’s a little over two months on what the Minister himself has said is an incredibly complex issue. I do not think that it gives the New Zealand public sufficient time to actually weigh in on what has been one of the most contentious issues in Aotearoa, particularly in the context of Māori-Crown relations, in history. I really think the shortened select committee process does not actually do this topic any justice.

The other thing that I’ve found really concerning when it comes to the shortened select committee process when you’re looking at the bill itself is this—in particular, to alter aspects of the law that are expressed in terms of some of the Court of Appeals’ ruling. Now, one of the things we have spoken about in this House is around the principle of comity. Other members of the House have mentioned that, yes, the judiciary should not be interfering with the legislature; however, that is a two-way street. The legislature should also not be making last-minute law changes and shortening select committee processes in order to interfere with the operations of our judiciary system.

💬 Hon Shane Jones: Parliament is sovereign.

Sovereign, but there’s also separation of power, Minister—there’s a separation of power. The reason we have checks and balances in Aotearoa, in the system, is so that we can do some of that. but you can’t have the cake and eat it too. This is not Marie Antoinette, Minister.

💬 Hon Shane Jones: Democracy.

Talking about hypocrisy, this is the very example of hypocrisy, Minister. Going back to the—

💬 Simon Court: Point of order, Mr Speaker. Mr Speaker, I’d just like you to reflect on when the member’s using terms like “hypocrisy” whether it’s likely to enhance or ruin the order of the House, and whether that’s appropriate language.

ASSISTANT SPEAKER (Teanau Tuiono): Thank you for that point of order, and I do take that on board. Can I ask members to keep it to the narrow confines of this debate, and we will all get through it.

Thank you so much, Mr Speaker. I will keep it to the referral motion and the amendment, unless the Government parties decide to interject further or would like to take a call themselves.

When it comes to the amendment that Arena Williams raised, I think that is a really good amendment. I think this is something that the Green Party will be considering as well, both in terms of the date but also in terms of some of the other relevant Standing Orders that are expressed in the referral motion.

When it comes to the 5 June date, I think that does give sufficient time for the select committee to consider the issue. Why I also agree with the previous speaker in terms of the actual select committee response itself, I won’t be drawing too much into that, just because we have, unfortunately, already voted on that. I think we would consider 5 June as a sufficient alternative, but we would see there to be some more options being proposed in terms of what would be an appropriate end date for the select committee to report back to the House, factor into a variety of different considerations in terms of other key dates, perhaps.

We do not agree with the fact that we need to have a shortened select committee process for this very complex and very important and very emotive and very raw issue for a lot of people, but we would be open to considering an amendment date to move from 5 December 2024 to 5 June 2025.

Members, the question for the House for debate is that the amendment be agreed to. The amendment is now debatable together with the motion.

Thank you, Mr Speaker. I move, That the motion be amended to replace the words “Justice Committee” with “Māori Affairs Committee”.

The amendment that I propose here is important for a number of factors, for some clear arguments that I’ll outline for the House for its consideration. A number of the speeches and factors that were debated and discussed by the Minister of Justice, and members across the House, spoke to the matters of tikanga, spoke to the matters at the heart of this particular bill. I’m of the opinion, which is why I have this amendment, that the best committee to be able to consider that is the Māori Affairs Committee. It is, as my colleague Arena Williams has already mentioned, one of those committees that works in a very bipartisan way. While I accept that this is a shift from the Justice Committee to the Māori Affairs Committee, what we know about this Parliament and the role that the Māori Affairs Committee has played in it in the past is that they’ve worked collegially with other select committees. I put it to this House that the best way that we can lead this process is through the Māori Affairs Committee.

We’ve heard today that there are a large number of people who went to the court to seek recognition of their customary title. I put to this House in my amendment that the best place for those particular claims to be heard and for those matters to be heard is the Māori Affairs Committee. The reason I also say that is because I know a number of those claimants will be coming to present in Māori, in te reo Māori, they will be coming to present on matters of tikanga Māori—

💬 Arena Williams: The lawyers, too.

The lawyers as well—yes, that’s right. The lawyers as well will be coming to do exactly the same. It is the opinion of, certainly, my amendment, and colleagues here in support, that the Māori Affairs Committee is the best place to do that.

I also want to just touch on the amendment that’s been proposed by my colleague here, Arena Williams. The extension of the time frame shouldn’t come as a surprise to anybody in this House. Why? Because the normal time frame is longer than the one that’s been currently set or proposed by the Minister. Also, every member in this House knows when the big Māori hui are on—they know. A lot of them show up, whether it’s in Waitangi, whether it’s in Rātana, whether it’s at Te Waru o Noema, whether it’s at the celebration—or the commemoration, I should say—of the signing of He Whakaputanga on 28 October.

Members across this House go to those events; it’s important. I put to the House that in order to hear the views of people—because of the challenge of the select committee process, not just for Māori but for non-Māori alike—that we actually consider the factors that bring us all to those Māori hui that we attend on a regular basis. That would fit in the time frame that’s being proposed here by my colleague Arena Williams. If it’s pushed to 5 June of next year, it will capture the big hui that I’ve certainly already outlined in my case to support her amendment here today.

Just finally from me, the Māori Affairs Committee has proven in the past, on large issues or significant and complex issues that impact Māori, that they can not only lead that process but they can work in collaboration with other committees. I think of the smoke-free legislation; I think of large health reforms that were undertaken by the Labour Government, which the Māori Affairs Committee played an important part in. I leave my amendment for the consideration of this House—that we replaced the words “Justice Committee” with “Māori Affairs Committee”.

Just to inform the House, unfortunately, your amendment to move it to the Māori Affairs Committee is out of order because it’s already moved to go to the Justice Committee. But I do, and I’m sure the House does, appreciate your explanations.

Thank you, Mr Chair. I move, That the motion be amended to remove “and that the committee have 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 a week in which there has been a sitting of the House, and outside the Wellington area, despite Standing Orders 193, 195, and 196.”

Let me first begin by explaining why we’re moving this amendment, and then I’ll talk about the other amendments that have already been moved. The reason why we’re putting this amendment is because it’s really clear to me that there is absolutely no interest from the Government to do due diligence to this process. They are putting a motion to basically ram through the process of this legislation to get it over and done with as soon as possible when, actually, if the Government cared about doing due diligence to the process, they would have a much longer report-back date and they would then do all of their meetings outside of Wellington during recess weeks.

There’s another reason for that, and that is because for the smaller parties—Te Pāti Māori, the Greens, and ACT and New Zealand First included—doing select committee sessions outside of Wellington during sitting days has a disproportionate impact on our caucuses. Even though we would have leave, basically, granted and our vote would be counted, we’re still dragging people away from being able to perform duties in the House and to speak to legislation. I know that for the National Party members that may not seem to be much of an issue because most of the time they’re taking 10-second calls to just say they agree with the bill and adding little substance, but for us as Opposition it is important that we actually have our full caucus being able to participate. There is no reason why we cannot travel across the motu outside of sitting weeks to hear from submitters.

The other parts of the Standing Orders in which the Minister’s motion wants to sort of put aside is around moving, for example, when sitting in select committee to assist this bill during the sitting of the House. Once again, this has an impact on our ability to participate in legislation, and also on evenings when the House has been sitting.

Look, I’m all for select committees having the flexibility to accommodate submitters, but this is not the way, because this is not about accommodating submitters. This is about rushing through a process that seeks to once again trample over our founding document. Through all the heckles from members in previous calls, this is about undermining the sovereignty that Māori never really ceded. Again, I would love to, in good faith, see if the members opposite to me, from the Government’s side, genuinely want to accommodate submitters or if this is just about rushing through a trash piece of legislation.

Now, I want to touch on the previous amendment by Arena Williams, which I support because, again, Arena Williams’ amendment, what it seeks to do is to extend the report-back date. I think, in combination with my amendment, which would actually prevent us from having those select committee meetings during sitting days, what it would allow us to do is to give ourselves the time to adequately listen to the communities affected by this legislation. By giving ourselves more time, we also have more recess weeks to actually travel across the country. We have mornings on Wednesdays and Thursdays, for example, where if there’s no urgency, then we can meet.

We’ve got to remember that there’s a reason why this Government is wanting us to sit in select committees during the sitting of the House, and that is because they have quite a liberal use of urgency and extended hours. That is a choice by the Government. They’ve chosen to use urgency and extended hours quite liberally to pass through terrible legislation. This motion is of their own doing. It’s their doing in the context of their broader legislative programme.

💬 Simon Court: What gaslighting rubbish, Ricardo.

RICARDO MENÉNDEZ MARCH: Despite the heckles from Simon Court to my left, we’ve got to remember that the Government’s put themselves in a situation where, because of all the trash bills they’re putting through, they’re now asking us to sit in select committees while the House is debating other legislation.

I think this is a terrible process and a terrible way of doing democracy. It undermines the ability of the non-executive members of Parliament to do good work in addressing a bill that clearly is controversial—clearly is, considering we even have members of the ACT Party in the speeches in the debate talking about how this was a sensitive bill and how we needed to tread carefully, etc. If they actually meant that, they wouldn’t be putting through a terrible select committee process that seems to completely undermine this kind of notion that they’re acknowledging that this bill has a lot of baggage. It will also prevent a more constructive conversation across party lines on this bill. I mean the Greens have made it clear that we don’t support the bill, but we at least think that our communities deserve good processes around this.

Once again, to recap, I support Arena’s amendment to the motion, and I’m proposing one to ensure that we do good process, that we don’t mix the sitting of the House with the sitting of select committees, and I look forward to other contributions from members. I just want to note, finally, before I sit down, that we’ve got other amendments on this issue, including from Steve Abel, coming up.

Members, the question for the House for debate is that that amendment be agreed to. That amendment is now debatable, together with the motion.

Thank you, Mr Speaker. I would like to bring into the debate the consideration of public interest, which I don’t believe has been given due consideration in either this debate or the one on the smoke-free amendment bill referral.

Public interest is a well-recognised jurisprudential principle underpinning the social contract between the estates of power, and it is something that must be given due consideration when there is a truncated process and when there is a matter that could be considered of great public interest, which I believe this matter is. The reason is that while the general definition of public interest would be what’s in the wellbeing of the general public, actually, in this particular situation we have the involvement of property rights, which by definition invoke great public interest, but also the reliance of hundreds of applicants who will be looking at the determinations made either before the courts or in this House as to how they will be able to proceed, and that, in turn, raises the spectre of whether they have confidence and faith in the constitutional process.

Now, there are many ways to look at public interest. In the normative way, it would be around what is normatively or ethically in the public interest, and I think there is an argument to be made that Māori need to feel that they have been included in the process and that they can trust it. What this whole process of truncation is doing in this rushed situation is really telling Māori who have relied on the processes that they were told to rely on that they cannot rely on them anymore. That’s a significant issue to consider constitutionally. When we look at where we sit politically these days with populism and with a very bipolar kind of fractured relationship in society, it is really important that we get trust back into the process, and so from a normative public interest perspective, it’s important that we do give this due consideration.

Consultatively, we need to be able to get the views from all of those who are impacted, because there is something about the trust that is built just through participation in the process and not just the outcome. There is also the pluralist argument for public interest, which is that the many voices need to be able to contribute.

Now, when we look at what’s been happening through this year, we’ve got 21 bills from this Government where there has been no select committee scrutiny, we’ve had nine shorter select committee times, and just this week, the Business Committee has had to make a determination to extend a select committee process on the sentencing bill, or the three-strikes bill, because the committee couldn’t do its work in time. All of these things by their very nature diminish public trust in the fact that this House should know what it’s doing and that it is applying the right time frames to the things it should be.

When I also look at the amendment that was put forward and has been voted against, I believe, around sending this to the Māori Affairs Committee rather than the Justice Committee, the fact that it cannot now go to the Māori Affairs Committee is another reason to say that the public interest in this and in making sure that the public interest is served is even more important, because those people who wanted it to go to the Māori Affairs Committee, who wanted to be able to present in te reo Māori, and who wanted to know that the constitutional elements under Te Tiriti would be considered properly and also with enough knowledge and expertise no longer necessarily have that faith and confidence. To send it to the Justice Committee and to enable a longer period of time for all of those things to happen that would have happened in front of the Māori Affairs Committee would help the public interest.

These are the reasons that I think that not only should the report back be in line with that which has been suggested by my colleague Arena Williams, but I also agree to support the Greens’ amendment relating to other matters with regard to this referral motion.

Thank you, Mr Speaker. I would like to promote and propose another amendment, please. I propose, That the motion be amended to replace “21 November 2024” with “3 July 2025”.

This is an extension by a further month on the proposal of Arena Williams, and the reason for that is not dissimilar to those that have already been articulated to the House. We have—and I find it strange to imagine these words coming from my mouth—the consideration of wiser heads in the former National Party in the form of the former Prime Minister John Key, who warned that if there was to be legislation such as this that you would see “hīkois from hell”.

Now, this is an example of where you have a fundamental theft of 4 million square kilometres of exclusive economic zone in the form of customary title and access of iwi Māori to that area. This is an issue that requires thorough and extensive consideration by the select committee. I’m sorry that the Māori Affairs Committee has been ruled out as an option, but that would have been the correct option I concur. If that is the case, then the date and the extent of the assessment by the select committee should be extended.

May I remind the House, Mr Speaker, that this is a piece of legislation that the Waitangi Tribunal pointed out—they had a damning report on this piece of legislation, the Marine and Coastal Area (Takutai Moana) Act, and it said that it failed to consult meaningfully with iwi Māori. This is another example—this shortened date—of a failure to consult meaningfully with iwi Māori; that it violated the principles of partnership; it breached the principle of tino rangatiratanga by overriding Māori rights without proper justification.

To not have a thorough and extensive process of a select committee is to further exacerbate those criticisms of this very legislation in its fundamental nature. The Crown has failed to protect Māori interests actively by proposing retrospective amendments that would disadvantage Māori applicants. It is ideologically driven—“rushed” is the explicit language used by the Waitangi Tribunal; that the development process was rushed—and now we have another instance that this Government wants to rush the select committee process. We should not do that. There is no way that there can be any perception of a thorough assessment of the feelings and the impacted communities by this legislation than if it is rushed through the House.

It is “antithetical” to good government was the other language used by the Waitangi Tribunal. It is antithetical indeed to good government to not allow a thorough select committee process where the amendments can be considered; where the impacts on the right of iwi to make claims to their customary waters as fully evaluated and understood; and the impacts—as my colleague Arena Williams pointed out—on individuals in the extinguishment, this further active extinguishment of Māori customary rights, effectively, by the raising of the bar on those who have access to make claim to those customary rights. It is something that should be thoroughly considered by the select committee over the appropriate period of time.

Te Tiriti is a foundational agreement of this nation, and Governments are temporary; they do not have the right to disregard or trample on the binding contract between Māori and the Crown upon which our nation is built. To have a legislative process that indeed further tramples through its rushed nature is something that the House should disdain. We should indeed support an extension of the time frame of that select committee—as I propose in this amendment—from 21 November 2024 until 3 July 2025. Thank you, Mr Speaker.

Members, the question for the House for debate is that that amendment be agreed to. The amendment is now debatable together with the motion.

Thank you, Mr Speaker. Just supporting the previous speaker Steve Abel and, obviously, supporting Arena Williams in terms of this extension. The House has to ask itself: does democracy apply to Māori, because Māori start getting particularly—a lot of our people I run across, so many. I don’t speak for Māori, but I know that I probably access a heck of a lot of them, and coming to the tribunal or coming to Parliament is a huge deal for some of our people—a huge deal.

I know of koroua and kuia who prepare for a week or two, and some of them come down on the buses. As my colleague Arena Williams said, it’s such a process that has been ingrained in ao Māori, and I suppose our people have trusted this democracy process. They see it, as the Green member said, as such an integral part of their lives. To push this all into December is such a rush and, many will think, a breach of their rights—many will think it is a breach of their rights. Extending it out to June gives people an opportunity to plan.

💬 Simon Court: We want to make sure you’ve got time to do your Christmas shopping, Mr Jackson.

I think that that member was missing earlier. I need to remind the ACT Party that they were supporters, so there’s no need to argue here. You were the party who were supporting Māori back in 2004 in terms of their rights over the foreshore and seabed. Rodney Hide showed some principles, for once in his life, and, actually—you’ll remember this, David Parker—he was talking about property rights and the opportunity for Māori to go to the court. So you should be supporting this because this is about Māori exercising their democratic rights again and being given the opportunity over the next few months to make a submission—a submission that has been supported by the Waitangi Tribunal, who are very clear that this is a breach of the partnership, who are very clear that this is a breach of tino rangatiratanga, and who are very clear that democracy is not being afforded to Māori.

I know that there’s a bit of a strategy going on from Shane Jones and his mates to sort of close down the tribunal, but we have to listen to the tribunal because the tribunal has been so influential in terms of shaping this country. Mr Jones has repented a little bit—and it’s good to see him back in the House. He has repented a bit. He’s had his hand slapped by his leader and by the National Party boss. They’ve told him, “You shush up when it comes to the court process.” That’s going to be just about impossible for him, as we all know. The reality is that it’s going to be just about impossible for him, but the tribunal has made its views clear.

I implore Mr Jones, given his history and knowledge of whakapapa—and he knows better than anyone else that his whanaunga, his relations, they love coming down here to Parliament. They love putting up submissions. How many, Arena—4,000 of them? There were 4,000.

💬 Arena Williams: 4,000 submissions.

4,000, through the foreshore and seabed process, put up submissions. Those are Shane Jones’ relations, Hūhana’s relations, Arena’s relations, and we have to be respectful of that. We have to understand that if we want to talk about democracy, which is something that we all like to talk about, how does that apply to Māori? How does that apply to Māori?

Then we refer it to the Justice Committee, right? Well, you know, nothing against my old mate Mr Meager over there, but he’s not exactly an expert on tikanga Māori or Māori language or Māori full stop—good man that he is. He would probably say, “Well, I need some expertise.”, and that’s why, as the Hon Peeni Henare has said, the referral to the Māori Affairs Committee would be a much better way to go, because we’re going to have some of our people come in and they’re going to speak Māori. What’s he going to do? He’s going to come and rush over to you, Mr Speaker, or pull his mate Shane Jones in to do the translations. The chair’s going to be all at sea. He’s going to be all at sea because our people want to come in, kōrero Māori—

💬 Hon Shane Jones: AI—AI.

AI—oh, I’ll get the translations, according to Mr Jones. Why don’t we be culturally appropriate here, for once? I want to be clear to the House that this has been the most contentious political issue of my whole life—of my whole life. It has been the most contentious issue of my whole life and has affected so many Māori, and when you affect thousands—I tell you, people here would not know what it was like. I don’t know who was here in the House in 2004. Were you here, Arena? Were you here, Mr Speaker? I don’t know if you were here, Mr Speaker.

In 2004, 20,000 Māori and Pākehā, or it might have been 20,000 to 25,000—you might have been there, Stevie? They all turned up and they all wanted to strangle the Māori Party president, John Tamihere—it’s a fact. I notice that Te Pāti Māori has disappeared, but David Parker knows this. The Te Pāti Māori president, John Tamihere, led the kōrero with regard to the foreshore and seabed.

ASSISTANT SPEAKER (Teanau Tuiono): If you could bring it back to the bill. I mean, we all know—

Well, I’m sort of going around in circles a little bit, I’ll grant you.

ASSISTANT SPEAKER (Teanau Tuiono): Yeah, yeah. Come back to the bill.

I’ve still got three minutes and 30 seconds to go.

ASSISTANT SPEAKER (Teanau Tuiono): We all appreciate that you’re an Oxford scholar, but back to the amendment.

Anyway, coming back to extending the dates—

ASSISTANT SPEAKER (Teanau Tuiono): Yes.

—all right—this is all part of it. It’s just to show that when you have history, when you have Māoridom already being denied access to democracy and already being denied access to the courts, do you want a repeater? That’s what we’re doing here—we’re repeating it again.

Māori were denied access to the courts in 2004, Māori were given an opportunity to go to the courts in 2011, the Court of Appeal came in in 2022 and said that the threshold was too high, and now this sovereign Government—this sovereign Government says, “Oh, hang on—hang on judiciary. We don’t think you’ve got that quite right and we know better.” I mean, look around this room—look around this room. Do you see all the expertise in this room? Is there mana exuding from the other side? Is there mana exuding from that side? I mean, the country’s got to have faith in all of this, but I don’t think so—I don’t think so.

When Shane Jones talks about the Parliament being sovereign, the problem is that you get some nut jobs who come into Parliament—that’s not you, of course, Mr Speaker. You get some—

💬 Hon Member: And in the court—and in the court.

No, it’s a fact. In fact, sometimes anyone can get into Parliament, and that’s the problem. The people have faith in the judiciary—[Bell rung]—not yet, Mr Parker. The people have faith in a judiciary because a lot of the courts—Māori have gone through this process.

ASSISTANT SPEAKER (Teanau Tuiono): But have you got faith in this amendment? That’s what we want to hear. Let’s get back to the amendment.

I’ve got total faith in the amendment. I want the amendment. Again, I’ll repeat that the amendment should be extended to June. Arena Williams is talking about 25 June. Why? Because Māori deserves an opportunity to access democracy, like Pākehā have for years and years and years. Given the history and the betrayal of previous Governments of Māori, now’s the time to make that up, and so we must give our kuia, we must give our koroua, and we must give our people this chance to come to select committee.

Now, having a select committee in December—and, with respect, in the Justice Committee some of them wouldn’t have a clue about tikanga Māori, te reo Māori; no idea—is not the way for Māori to access democracy. It should be going to the Māori Affairs Committee. It should be extended to June of next year—

💬 James Meager: Māori Affairs is too busy.

—and te ao Māori will get their chance to exercise their rights to democracy, Mr Meager. You can come to the Māori Affairs Committee, too, and sit there quietly, shut your mouth, and listen to some expert Māori—

💬 Hon Members: Oh!

Oh, they’re a bit sensitive. Was that a bit hurtful? Oh, sorry about that, but I’m sure you can handle it. But, seriously, Mr Meager, we want you at the Māori Affairs Committee so that you can learn about the history of betrayal.

Māori deserve an opportunity. This needs to be extended to June of next year. Thank you, Mr Speaker. Kia ora.

Thank you, Mr Speaker. I’m actually one of the few members in this House who was here in 2004, and I want to explain to the House why in my view the December report back is inappropriate; why it doesn’t leave time for the courts to do their business and why, really, it risks division in the country; why, in my opinion, this early report-back date fails to learn the history from 2004 of the mistakes that were made then; why, really, it should be extended until June 2025 at the earliest; and why any application by the House to bring that forward really is an example of fools rushing in where angels fear to tread.

In 2004, the Ngāti Apa decision of the Court of Appeal was founded, not on a Treaty argument, but on the finding that there were unexpired common law interests in the foreshore and seabed that had not been expunged. The Court of Appeal did not find how extensive they were. It didn’t set out the legal test, but a political controversy furore arose around the country and there were extreme things that were said on both sides of the debate. On the one side, we had members of the National Party—at least one of whom is still in this House—saying that access to the beaches would be prevented and that people wouldn’t be able to go and fish. That was never true. Rights of navigation and commercial fishing rights were already extinguished and beyond the purview of common law interests because they had been codified in statute. On the other hand, we had some people saying that the Ngāti Apa decision was, effectively, giving Māori freehold title and asserting that that’s what they were going to get, and that was wrong, too.

Now, at the time, the then Government, of which I was part, made some mistakes, and one of the mistakes that we made—perhaps the most significant mistake we made—was we didn’t let the issue play out before an appeal to the Privy Council. We didn’t let the appeal proceed to the Privy Council; we intervened.

Why should the appeal have gone to the Privy Council? Well, maybe some of the concerns in society would have been addressed by elucidation by the Privy Council. Some of the things that people disagreed with in the Court of Appeal decision in Ngāti Apa might have been overturned or they might not have been, but in any event, people would have had more time to get their heads around the fact that, actually, in the end, these foreshore and seabed disputes, they’re not going to change the world, because the remit within which foreshore and seabed rights are is relatively narrow. It doesn’t include commercial fishing—

💬 Simon Court: Well, except to the judges—you just got it wrong.

—and it doesn’t, effectively, change the way in which people live their lives in New Zealand, and, indeed, the very fact that you’re continuing with an unexpired interest under the foreshore and seabed legislation means that that right is already being continued and it hasn’t been interrupted. So the continuation of it can’t be anything more than it already is.

At that time mistakes were made. The new Government came in and they passed the marine and coastal area (MACA) legislation, which, in the end, the Labour Party opposed for the reason that we didn’t think that it was wise for Parliament to take on its shoulders the codification of the statutory tests under the MACA legislation because we could get it wrong. We didn’t have a fear that somehow the courts were going to write up these rights—these unexpired common law interests—in a way that was going to change the future, because all that the courts could do is find what already exists and let it continue. They couldn’t create a new right under the foreshore and seabed; they could only recognise rights that were already in existence.

That’s why we opposed the Finlayson legislation. With the benefit of hindsight, I don’t think that was terrible legislation, and we haven’t moved to repeal it when we were in Government. I do think that there was a mistake made by this Parliament in putting a limitation period in, because the limitation period is what has caused this rush because everyone had to file their claim by 3 April 2017. After 200 years of not having to do anything, all of a sudden, Māori were given a deadline in 2017 that if they didn’t file their claim, they could no longer file their claim. That’s why there’s a backlog of hundreds of cases in the court: because everyone had to file by that date or lose their rights.

That’s what caused that, and now the Government complains that too much money is being spent on legal aid in respect of those claims. Well, the Government brought that upon society by putting a limitation period in. If there was no limitation period, people wouldn’t have had to file, most people wouldn’t have, and things could have sorted themselves out over the years. The legal tests could have been tested, they could have gone up and down the courts, and, eventually, these things would have been sorted out over a number of decades in New Zealand. In the end, no one would have got any more than they already had, which was an unextinguished common law right that went back to pre-1840, which cannot—in any way you look at it in the common law—be extended beyond what existed at the time people went to court. These fears as to somehow these rights being extended in a way that’s going to have a material effect on the way people live their lives in New Zealand are completely misguided.

Now, those things are complex. In the meantime—and this is one of the reasons why we shouldn’t allow this just to have a December report back—all these things should be traversed by the select committee. Would the best thing for New Zealand be to completely axe the legislation and leave it all to the courts? That’s what the ACT Party used to think, and maybe they were right. That’s actually where I got to by the time the MACA law was passed, but maybe events have passed that. Should the negotiation route be enlivened? It’s now alive at law, but it’s not actioned by the Government because they won’t finance it. How do you resolve all these competing interests within an area? Maybe you’d get around a table and sort them out, and maybe that needs to be considered.

More fundamentally, why don’t we let the Supreme Court have a look at the two alternative views in the Court of Appeal judgment? We’ve got the decision of Justice Miller, the minority, who, actually, basically agrees with much of what the National Party is saying should be the interpretation of the legal test. The majority—the two other judges—said, “Well, look, these rights are so narrow that have been conferred, surely the threshold test to get them can’t be that high? How would Parliament want to, if it had a Treaty clause and a purpose clause?” They put some weight upon the Treaty clause and the purpose clause. They said, “Given that once you get through all of those hurdles, the rights you get are so constrained, how could anyone in their right mind”—well, they actually don’t use that language. They said, “How could anyone in that circumstance think that the threshold test is as high as the minority judgment and the Government would put it?”

Let those arguments be discussed in the Supreme Court. Let them put a bit of light upon that issue before this Parliament decides whether it needs to react or not, and I hope that even if this legislation goes down, the Supreme Court stands up and does its job. They have accepted an appeal. They should set it down for hearing in two weeks’ time and they should do their job in the Supreme Court to hear the live appeal from the Court of Appeal, and maybe by the time this legislation passes or is brought before the House in a subsequent period, we will have some guidance from the Supreme Court as to what they think the current law is under the MACA legislation.

Maybe they’ll agree with the Court of Appeal, maybe they’ll agree with Justice Miller, or maybe they’ll agree on some points and disagree on other points, but that is the role of the courts, and I, for one, am calling upon the Supreme Court here to do its job—to set down the appeal which is currently before them and to hear that appeal urgently—so that this House has the judgment of the Supreme Court before this legislation is passed through subsequent readings. It would be good to give the Supreme Court more time by extending this date to June—

💬 Arena Williams: That’s why we should extend it.

That’s a good reason to extend it. If they don’t, and if the National Party is so narrow that they’re not going to, the Supreme Court should call this for hearing in a couple of weeks’ time. These issues have already been traversed in the lower courts. Everyone can turn up again—

💬 Hon Member: Ready to go.

—they’re ready to go, and they can go to the Supreme Court and the Supreme Court can give advice as to what they think is the effect of the current law before this Parliament, going back to fools rushing in where angels fear to tread—before we do it in ignorance of what the Supreme Court might think.

I think there are good reasons for giving this some more time, as I have explained. I do think it should be extended, but if it’s not, I really do think we need the courts to stand up at the moment. We’ve got a Government at the moment that’s riding roughshod over normal processes, as shown by the fact that they’re having such a short select committee period on such a serious issue. In this sort of situation, it’s time for the courts to stand up for the people of New Zealand who they represent and to deal with the important issues that are before them, and there is no more important case before the Supreme Court going to the future peace and happiness of New Zealand than this particular case. Those are my comments.

Point of order, Mr Speaker. Thank you, Mr Speaker. I’m raising a point of order here with regards to Standing Order 116(1) and Speaker’s ruling 35/2. It relates to the interjection of Mr Simon Court at the beginning of my colleague the Hon David Parker’s contribution. This is a difficult issue for you to work through, so I’m not proposing that you deal with it now, but—

ASSISTANT SPEAKER (Teanau Tuiono): I didn’t hear what he said. He’s quite far away.

Mr Court is a member of the executive, and he observed that you cannot leave it to judges—is my understanding of what he said. The problem with that is that there are gnarly issues in this debate for Parliament to work through with regard to the second limb of the sub judice rule, which is comity between Parliament and the court. It is deeply inappropriate and a breach of the very rationale for the rule that is at Standing Order 116 in the Standing Orders for a member of the executive to criticise the judiciary in this way, in this kind of debate where we are discussing exactly these issues which Standing Order 116 is set up to determine. So my suggestion to you is that you give him an opportunity to explain himself, and then come back to this House with a ruling on what we should do with comments like that.

OK, I’ve just been consulting with the Clerks. I didn’t hear the comment, so the member might want to elucidate for the House. My understanding is that, if it’s a general comment about judges and the judiciary, then that doesn’t necessarily relate to that, but if it was a specific comment, then the member might want to—Simon Court.

Are you offering me an opportunity to speak to the point of order, Mr Speaker?

ASSISTANT SPEAKER (Teanau Tuiono): Yeah, to speak to the point of order.

Well, in that case, I’ll confirm it was a general comment related to the matter under debate.

Point of order, Mr Speaker. I mean, in the context of me discussing a specific case which this overrules, it’s hard for me to accept—but, if that’s your ruling, I suppose I have to accept the member at his word.

We will accept the member at his word. I’ll take the next call.

Tēnā koe, Mr Speaker. He tū tēnei ki te kōrero e pā ana ki te tono a taku hoa, a Steve Abel, mō te whakarerekē i te wā ka tū tēnei pire i te Komiti Whiriwhiri mō te Ture. Nō reira he wāhi kōrero tēnei ki te tautoko i tāna tono ki te whakarerekē ki te 3 o Hurae ā te tau e tū mai nei.

Nā wai i teka, mā tēnei Kāwanatanga e whakatau kei a wai te mana takutai moana ki roto i tōku rohe, o Whangarei-terenga-paraoa? Nā wai i teka?

I tēnei wā tonu, kei te noho ngā hapū me ngā iwi puta i te rohe o Whangārei ki mua i te Kōti Teitei ki te wānanga me te tohe ki tēnei ture tonu. Nō reira kei a wai te mana? Nā mātou tonu. Kahore nā tētahi kōti teitei nei; kahore nā tēnei ture tonu. He mahi pōhēhē tonu nā tēnei Kāwanatanga ki te raweke i ngā mātāpono me ngā kupu o te Tiriti o Waitangi.

Mā te Tiriti o Waitangi e arahi ngā mahi a tēnei whare Kāwanatanga. Engari auare ake. Kahore ngā mema o te Kāwanatanga e tino pūmau ana, e tautoko ana i te Tiriti o Waitangi ki roto i tā rātou mahi.

Mea nei ngā kupu a te Pirīmia, kei te whakapono ia ki te Tiriti o Waitangi, engari huri rawa ake ia, ka tautoko ia i tēnei ture ki te raweke i te Tiriti o Waitangi me te mana takutai moana o ngā hapū me ngā iwi puta noa i Aotearoa.

[Thank you, Mr Speaker. I stand to speak in support of my colleague Steve Abel’s request to amend the date when this bill will go to the Justice Committee. Therefore, this is an opportunity to support his request to change the date to 3 July next year.

Who lied, saying that this Government would decide who has authority over the coastal areas within my region of Whangārei-terenga-paraoa? Who lied?

At this very moment, the hapū and iwi across the Whangārei region are standing before the High Court to discuss and challenge this very legislation. So, who holds the authority? It is with us. Not with some High Court, not with this very legislation. This is a complete misunderstanding by this Government in meddling with the principles and words of the Treaty of Waitangi.

It is the Treaty of Waitangi that should guide the actions of this Government. But that’s not happening. The members of this Government are not truly committed to or supportive of the Treaty of Waitangi in their work.

The Prime Minister says that he believes in the Treaty of Waitangi, but then he turns around and supports this law that meddles with the Treaty of Waitangi and the authority over the coastal areas held by the hapū and iwi across New Zealand.]

I wish to stand and support the tono from my colleague Steve Abel to extend the duration to 3 July 2025. I ask that because my people within Whangārei right now are before the High Court; we’re in stage two of our hearings on these very matters. Then to lump us in to a shortened time frame—as well as having for our tribes to prepare evidence and present their evidence before the High Court—is a serious injustice to the people and the tribes of Whangārei. Why should they be put at risk from having their voice heard in this process while still having to clamber, prepare, and then present their evidence before the High Court just because the Crown, this Government, wants to go and shorten the process?

We require a full process to allow all New Zealanders—iwi Māori, whoever from the community, all of our kaitautoko—to come forward into the select committee process and provide their kōrero. We’ve already heard from the Waitangi Tribunal that this Government has undermined Te Tiriti o Waitangi; this Government has overreached and exercised illegitimate Kāwanatanga in mana takutai moana matters. The Waitangi Tribunal has been very clear in terms of the way that this Government has prioritised coalition agreements above and beyond their obligations to Te Tiriti o Waitangi.

This is once again another example of the way that this Government seeks to undermine the ability for the public of New Zealand to have their say on legislation—to have their say. Allow our community, allow iwi Māori, allow even the industry to have their say on this very piece of legislation. Allow it to proceed and be heard until, what, 3 July 2025? Why not? Why not allow our communities into this House to finally have their say? We have seen legislation after legislation by this Government undermining the very public process that our people voted us in here to do. They have truncated select committee processes. Allow the Justice Committee—since it’s not going to the Māori Affairs Committee—to sit properly and listen to the voice of all New Zealand on this very important matter.

Kua tae ki te wā me whakatikatika tātou i a tātou anō. Me mahi ēnei mahi i runga i te tika. Ina hiahia koutou ki te tūkino i te iwi Māori me tēnei ture, tēnei ture takutai moana, me noho koutou ki te whakarongo ki te tangi auē a te iwi Māori ki roto i tēnei Whare tonu. E te whānau, me whakatikatika tātou.

[The time has come for us to correct ourselves. We must carry out this work in good faith. If you want to abuse the Māori people with this legislation, this foreshore and seabed legislation, you should sit and listen to the mournful cries of the Māori people within this very House. To my family, we need to get it right.]

Let’s allow the public of New Zealand—and this is not just iwi Māori; this is everyone. Allow us the chance to finally sit, whether it be legislation on vaping; whether it be, oh well, fast track, or whatever—it’s always being truncated. Allow us to sit and listen to the voice of all New Zealand.

For the people of Whangārei that are right before the High Court right now and really, really busy—because, you know, our people have jobs, they have lives, they have commitments, and then ka huri rawa ake [they turn around] and they’re being pulled into this truncated process. Why? There’s no rationale. There’s no evidence for why it needs to be truncated. Why shorten it? We haven’t heard a decent rationale.

As you’ll hear from members of this side of the Whare, let’s be fair to the public of New Zealand. Let’s be fair to iwi Māori because, after all, you want to raupatu our rights to the mana takutai moana. Remember, us getting customary marine title (CMT) is not undermining the rights of Joe Public to be able to access their beaches. Us getting CMT is not going to undermine the ability for the public to be able to navigate our waters in the takutai moana, and it’s not going to undermine their rights to harvest the kai for their whānau.

That’s my issue: where I think, actually, we’re getting things wrong from the outset, and I support our colleagues on this side of the House who say to let’s give it a chance, eh? Let’s allow the public of New Zealand into this Whare properly so that we’re not stressed because we’ve been in a churn of response mode, day after day, week after week, as the Government brings legislation into this House that requires us to turn quickly and put submissions into the Whare. It’s not their job as the public to be watching the Government for every piece of legislation that comes through this House, and yet they do because it’s coming thick and fast to the people of New Zealand.

On behalf of my tribes—tribes who are in the Environment Court right now, tribes who are reviewing resource consents on the daily, tribes who are trying to put kai on their tables and feed and manaaki their people and keep the lights on at the marae—let our people have a chance to be able to respond to this legislation. Let them be able to put their kōrero forward and say, “He raupatu takutai moana tēnei ki taku iwi, ki taku whānau” [“This is a foreshore confiscation from my iwi and my family”].

We have rights to the land and the takutai moana abutting the moana in our rohe kāinga. This is our papamoana and we mahi tahi in our community to look after the taonga of Tangaroa. Let them have their voice heard. Nā wai i teka mā tēnei Kāwanatanga ki te iwi Māori kei a wai tonu te mana rangatiratanga ki te whakahaere i te takutai moana? [Who said that it is up to this Government to tell the Māori people who has the power of sovereignty to manage the foreshore?]

Aroha mai [I’m sorry] e te Speaker. I’m very passionate about this because I am worried for the people of New Zealand and our ability to exercise our democratic right for our voice to be heard. We have had nearly a year of seeing this Government cut it to the chase; push our people that are in a churn of putting submissions in week on week. This is my tono to the House. Me āta haere tātou. Me āta haere. [We need to tread carefully. Need to tread carefully.]

If we want to demonstrate that, as the Prime Minister said, he values the importance of Te Tiriti o Waitangi—and yet, if it’s a taonga, how come we’re doing this again? How come we’ve got another piece of legislation that undermines Te Tiriti o Waitangi as a foundation document that really helps our people move forward together? That’s the road map for mahi tahi, e tātou ma.

May I remind you: tino rangatiratanga sits within the iwi kāinga, wherever they are. This legislation needs to enable our people to come forward and talk about that rangatiratanga, talk about their kaitiakitanga, and talk about the mahi tahi that they do within their local communities to look after the taonga o Tangaroa.

I think about the people in Whangaruru, just recently they had a hui on these very matters because they’re worried about fish stocks and they’re worried about pollution going into the moana spaces. How about letting them come forward and say, “This is what we actually do on our daily and our iwi kāinga.”, and you guys, as in the Government, changing this legislation really undermines that work that they’ve been doing for years and years and years, hundreds of years, because after all, te iwi Māori—we’re intergenerational. Governments come and go, but we will still be here and we will still be fighting for Te Tiriti o Waitangi so that this House may respect the articles of Te Tiriti o Waitangi set out by our tūpuna, signed with the British Crown of the time.

As the Waitangi Tribunal has said, it’s an illegitimate exercise of Kāwanatanga, so give us the chance to extend to 3 July to be able to have our voice heard. Kia ora tātou.

Members, the time has come for me to leave the Chair. The House will resume at 2 p.m.

Debate interrupted.

Sitting suspended from 1.01 p.m. to 2 p.m.