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

Members, we now come to Part 2. This is the debate on clauses 11A and 12, “

I would like to talk about this because this is a really strange legislative device; it’s entirely descriptive and it doesn’t appear to actually legislate at all. First of all, we’ve got clause 11A which tells you something which you don’t need to know: “This Part amends the Marine and Coastal Area (Takutai Moana) Act 2011.” Well, that’s what the whole thing does and that’s what Part 1 does. Why we need that, I don’t know. I mean, the Parliamentary Counsel Office must be tearing their hair out. Then, we come to a new section 59A, which basically says—we’ve done Part 1, and 59A says, “And here’s what Part 1 did.” Now, I know that there’s overview provisions which sometimes are useful navigational tools, but this is kind of a hopeful “This is what we’ve actually achieved.”

I guess my question for the Minister for Treaty of Waitangi Negotiations is: what does this section achieve that no other section in this piece of legislation hasn’t already achieved? If we’re trying to draft easy-to-understand, plain English, easy-to-navigate legislation, hasn’t this done exactly the opposite?

Then if we turn the page and we come to new section 59B, this is actually much more difficult, because what it does is it says “Here are examples of judgments altered and overridden.” It gives you a list, in fact names—which is quite unusual—names, actual cases which it overrules. There are cases where that does happen, I remember a sex offenders register case where it said, “This legislation applies to all of the law except this one case” because of the anti-retrospectivity rule. But my question here is: where you see examples in legislation, it’s a kind of interpretive convention that examples are not the rules themselves. It says “for example”, but that’s not part of the legislation, not part of the kind of heavy lifting that changes the law. It’s just a description of how the drafter thinks the rule will work in practice, to assist the reader. Here we’ve got examples—and it’s really strange, because it doesn’t say “here is an exhaustive”; if it said, “and these cases are no longer of any effect”, then that would be doing legislative work, but what it says is “here’s some examples”.

Not only does it use the kind of less than legislative term—it doesn’t say “these are overridden”—it says “here’s an example of what might be the case”, but also it’s a non-exhaustive list. It’s the worst of all possible worlds, as you might not have read in Candide, but it just doesn’t seem to make any sense because it is a closed set, if you like. The list of cases which are no longer good law is not infinite; they are able to be listed. If that’s what the Minister wanted to do, then he should have listed them. To simply say “Oh, for example, here’s a few we found.” is actually either lazy or misleading. I guess my primary question is: Part 2, what’s the point? If these cases are overruled, then they’re overruled and set aside by this legislation and you don’t have to name them. If you’re going to list them in a non-exhaustive way, it’s actually quite misleading. People will look at this and think, “Well, my case isn’t on there, so it must still be in force.”

Then as for a section which says, “Here’s what we’ve done.”—I mean, again, what’s the point? Is this his own idea or is this his officials? I’m pretty sure that a good parliamentary counsel—and we have excellent parliamentary counsel in this Parliament—would not have advised this messy, duplicate, verbose, and largely redundant drafting. If the Minister could explain what he’s trying to achieve by Part 2, that would be appreciated.

Supporting my colleague, I think he makes some very good points. My contribution to this particular part is quite clear. It asks a very specific question about the announcement that the Minister for Treaty of Waitangi Negotiations made with respect to the moves that he’s making to amend this particular legislation through this bill, which is that at the end of the Schedule, inserting New Schedule 1AA, it does say in there at new clause 6, “No entitlement to compensation”, “A person is not entitled to compensation of any kind on account of the operation of the CMT amendments.”, which begs the question, once again: does that only apply to the ones that are listed here? Those are the questions that Dr Webb has made quite clear to the Minister. Who else does that or does that not apply to?

Also, to the announcement that the Minister said they are setting aside $15 million—to do exactly what? What we’ve seen here is that there are multiple cases listed here in Part 2 that do a couple of things. One is that it says, “Here’s a list of those where it’s been overridden.”, and the other one is “Here’s a list of those judgments that have been altered.” I thought the actual matter that we’re debating, as to Mr Webb’s point, is, well, Part 2 actually seems moot then.

I’ll leave those questions there, with respect to any compensation or entitlement to compensation, given they listed the cases there in Part 2, and then just a bit of clarity around the Minister’s announcement around the $15 million they’re setting aside.

Thank you, Madam Chair. Speaking to Part 2, new section 59A. Now, I have a tabled amendment, and I just want to check that I’ve got this correct with the Clerk, if I may. My tabled amendment paper No. 12, which is a proposed amendment to Amendment Paper 380. I believe I may have been advised to propose this for a different part. Sorry—

CHAIRPERSON (Maureen Pugh): Sorry—can you please speak into your microphone, Mr Abel. I’m not sure if you’re talking to me or yourself.

STEVE ABEL: Oh, pardon me, Madam Chair. No, no—well, I’m talking to you, with a recognition that I’m seeking clarification on advice that I received from the Clerk, that my tabled amendment—No. 12—a proposed amendment to Amendment Paper 380, which I had suggested that we insert a new section at new section 59A, “Recognition of tikanga evidence” that perhaps should have belonged in another part of legislation. I can’t ask a direct question to the Clerk, obviously, so I’ll speak to my amendment.

It’s to do with tikanga evidence, and it clarifies that tikanga-based evidence may take diverse forms and must be respected in its own terms, rather than being judged against or limited by a Western legal framework. It ensures the unique worldview of te ao Māori and appropriately considered, particularly in relation to mana, kaitiakitanga, inter-group relationships, and spiritual, cultural connections to the Takutai Moana. It requires the court to recognise tikanga as evidence and sets out the nature and forms of the evidence that may take.

It would be inserted as a new section 59A—I won’t read the whole thing, as you had advised me earlier, Madam Chair, but just to touch on a couple of the key wordings, in recognition of tikanga evidence—“In determining where the customary marine title exists in a specified area of the common marine and coastal area, the court must do the following, where relevant: among other things, not require tikanga to conform to traditional common law legal concepts; and where evidence of tikanga, in relation to the following, is directly relevant to determining whether customary marine title exists, authority and mana over relevant areas, resource management, kaitiakitanga, relationships between groups, resolution of disputes, and spiritual and cultural connections. And must recognise that mighty relationships with the common marine and coastal area are holistic and encompass both physical and metaphysical dimensions.” I won’t read the rest of it, but the essence of it is that it takes into account tikanga as evidence and sets out the nature and forms that that evidence may take.

If we are to have a seriously plural legal system, one that takes account of the fact that we have, over the course of time and jurisprudence, got a blending of tikanga and common law as the foundation of our legal system in this country, then we need to enshrine and recognise that tikanga has, at least, the same standing as common law, and that it must not meet the test of common law. It has its own standing, as affirmed and confirmed by Te Tiriti o Waitangi. This is a concept that is not peculiar to other jurisdictions grappling with how to recognise Aboriginal or native title, such as Canada and Australia—

CHAIRPERSON (Maureen Pugh): I’m sorry to interrupt the member. It’s taken me a while to find the reference that you’re referring to, so you’re talking to Amendment Paper 380 to clause 10—

STEVE ABEL: Yes.

CHAIRPERSON (Maureen Pugh): —which was voted on in Part 1.

STEVE ABEL: Oh, OK. That was where it got shifted to, is it?

CHAIRPERSON (Maureen Pugh): Yes.

STEVE ABEL: I originally proposed it as being in Part 2.

CHAIRPERSON (Maureen Pugh): We have already voted on your amendment.

STEVE ABEL: OK—pardon me. Thank you very much.

I move, That debate on this question now close.

The question is that the Minister’s amendments to Part 2 set out on Amendment Paper 380 be agreed to.

Tākuta Ferris’ tabled amendment to clause 12, deleting new section 59B, is out of order as being inconsistent with a previous decision of the committee.

Tākuta Ferris’ tabled amendment inserting new Part 2A to establish a Māori Takutai Authority is out of order as outside the scope of the bill.

We now come to questions on the Schedule.

The question is that Steve Abel’s tabled amendment to Amendment Paper 380 to the Schedule, replacing new clause 2, be agreed to.

The question is that the Minister’s amendments to the Schedule set out on Amendment Paper 380 be agreed to.

The question is that Tākuta Ferris’ tabled amendment to the Schedule, inserting new clause 7, be agreed to.