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

We will resume the interrupted debate on the instruction to committee and amendments proposed to it on the Marine and Coastal Area (Takutai Moana) (Customary Marine Title) Amendment Bill. Is there someone taking a call? The question is that the amendment in the name of Arena Williams—

Point of order. Mr Speaker, I’m sitting right next to you and I can’t hear you, sir. There’s too much noise.

💬 SPEAKER: Is there?

Yes, there is.

💬 SPEAKER: Right. Well, I generally thought there was far too much noise during question time, so I assumed that members were comfortable with that noise and decided to carry on with the House’s business. However, we will take a 30-second break while those who are leaving the Chamber to do other business do so without discussion and without excessive noise.

💬 Hon Dr Duncan Webb: Thank you, Mr Speaker.

💬 SPEAKER: Hold on, I haven’t called you yet. Unbelievable. I call the Hon Dr Duncan Webb.

Thank you, Mr Speaker. I must say that I find it deeply concerning that the referral back proposal from the Minister on this bill is so truncated. This bill, I understand, is going to be referred not to the Māori Affairs Committee—where you might have expected it to go—but to the Justice Committee. Whilst I’m on that committee and I consider myself competent to consider a lot of the material that goes before the Justice Committee, this bill in particular will be a technical challenge—

💬 James Meager: Oh, you’ll handle it, Duncan.

—well, you may say that, but the fact of the matter is that there are concepts in here which are quite unfamiliar to me. I hope the other members of the House will have a crack at reading the decision that prompted this because—

💬 Tim Costley: Don’t punish everyone with your incompetence.

Well, the fact is—

💬 SPEAKER: That cross-House conversation can stop. It’s a very tight debate, and it’s unnecessary to put in cross-House objections.

Thank you, Mr Speaker. My point is simply this: in terms of the material put before the committee, it will require some upskilling so to speak. There are issues which are at the heart of this bill which go to customary title and tikanga, and they’re not things which I’m particularly familiar with. I would have expected, quite likely, that we will need an independent adviser on that committee who will also require time to put advice together for us, because the key issue before the committee, it seems to be, is: what is the appropriate test for whether customary rights in respect of marine and coastal areas exist?

Now, that question was examined in considerable detail by the Court of Appeal. The Government doesn’t like where it’s landed and wants Parliament to have a have another look at it. If we look at the very extensive analysis of the Court of Appeal, I’m sure the Government would not want the select committee to spend less time and have a less robust analysis than the Court of Appeal. Whilst the lens at Parliament is somewhat different, the fact of the matter is—and it’s going to have more political content and, of course, it is able to create law rather than simply interpret it.

Nevertheless, the fundamental question is the same, and you’ve got to remember what’s happening here. I think the Minister for Regulation, the Hon David Seymour, will be particularly interested in having something to do with the select committee because, in his own policy documentation, he talks about the Ministry for Regulation having input into laws which affect property rights and making sure that any rule—any law passed by this House or other Government agencies—which affects property rights are subject to proper scrutiny.

I’m not sure it quite fits, but in his party’s policy documentation, he talks about there being a proper cost and benefit analysis, and he also talks about property rights being protected and not arbitrarily taken away. Now, that is the sort of submission which I expect the Ministry for Regulation will want to put to select committee, because the Minister has said—at least, prior to election in his policy material—that’s what his ministry is going to do. Now, to do that, they’re going to need time. In fact, it would suggest that the Ministry for Regulation will be doing some kind of economic analysis or at least a cost-benefit analysis—and anyone who’s seen Treasury’s cost-benefit analysis will know that that’s no small task.

The other point is that this engages with article 2 of the Treaty in the sense that the Crown’s got an obligation to protect and preserve—in the English version—the lands, forests, and fisheries of iwi and hapū, in Māori. We need to understand exactly what that means, because if this proposed bill is now taking away rights which exist—the whole point is that this original legislation doesn’t create rights; it recognises rights. If we’re going to understand what the Crown’s Treaty obligations are, we’ll need to delve into that, and Treaty issues are not something which traditionally comes before the Justice Committee.

I think the Minister has presented this as a sort of—well, my real concern is that it’s been presented as a rubber stamp: bump it off to the Justice Committee, listen to the naysayers, and get on with it. Well, that’s not good enough. The select committee needs to do a genuine and robust analysis of what’s going on here.

The whole idea of aboriginal title, customary title, and customary rights which underpin the original marine and coastal area Act (MACA) and the decision and the amendment that’s now proposed is important. I can’t accept that the Minister’s just saying, “Oh, we just want you to tweak it to say what we originally meant.”, because it actually misconstrues the job before the select committee that we need to look at, which is: what is the framework for the decision? What’s happening there is the common error when two legal systems meet, which is that the dominant legal system calls the shots and says what the rules are, where the question is really what the tikanga Māori approach should be.

We need to understand that tikanga Māori approach. Now, whether that’s through an independent expert, a pūkenga, or whether it’s through a good and robust submissions process is yet to be seen. But I can tell you that having sat through the Māori wards material through the select committee process, one of the complaints of many submitters from iwi and Māori organisations was that the resourcing required to give really helpful submissions was inadequate and they needed more time and more resourcing. The truncated select committee period is really going to constrain the quality of the submissions that come to us, because I don’t accept that there’s only one way to solve this problem.

I guess the other point is this: this is actually constitutionally important, and that’s another reason why it shouldn’t be rushed through select committee. It’s constitutionally important because it’s actually taking away vested rights. People whose rights have crystallised—it’s generally considered to be when you have put in place the proceedings to recognise those rights. We know that there’s plenty of MACA applications, both before the Minister and through the courts, and this actually changes the rules under them. It’s got that retrospective aspect, and that means, when you’re doing something which is that important, that actually is doing something which runs counter to some pretty fundamental constitutional principles, we shouldn’t rush it.

Now, our position on this is clear, and that is to leave it to the courts, but this Government has said they want—on the hoof; while the decisions are still being made—to change the rules. Well, it’s the Government prerogative to put a bill before the House, but it’s a real concern, when you’re dealing with removing property rights, retrospective legislation, Treaty rights, and customary title, to do it in a rush. We fiercely object—

💬 Hon Shane Jones: Point of order. Sir, I’ve listened carefully to the member’s speech. This is a narrow issue. He is referring to the Hon Peeni Henare’s contribution that the matter be referred to the Māori Affairs Committee. This is not an opportunity for him to share his view about colonisation, aboriginal title, or his view about the constitution. Please, I beseech you: get these contributors to bring it back to a very narrow issue. The narrow issue is outlined in the referral motion.

💬 SPEAKER: I have respectfully listened to the point of order brought by the Minister, and he should trust that the matters that he is raising are understood by the Chair and will be considered at a point where the debate might conclude.

Thank you, Mr Speaker. I was going to touch on Mabo, but, given the member’s comments, perhaps I’ll leave that. My fundamental point is—and it has been throughout, and it remains—that given the importance of these matters and the fact that they cut across many important issues, issues that can be divisive, we need to approach this in a deliberative, careful manner which is not hysterical but is time sensitive. Thank you, Mr Speaker.

I move, That debate on this question now close.

The question is that the amendment in the name of Arena Williams be agreed to.

The question is that the amendment in the name of Ricardo Menéndez March be agreed to.

The question now is that the amendment in the name of Steve Abel be agreed to.