John Boscawen

Part 3 Customary interests

I will just comment on what Maryan Street had to say. She summarised part of the basis of the ACT Party’s objection to the Marine and Coastal Area (Takutai Moana) Bill. We believe that iwi and hapū should have access to courts. We do not believe that the law should be codified in the way that it has been, which denies the right of iwi and hapū to go to court and to fight for their common law rights.This is a debate on Part 3 of the bill. I will focus in particular on the clauses relating to customary title, which have been identified by the Hon Christopher Finlayson: clauses 60, 61, and 64. I will refer also to mana tuku iho.

Before I do that I feel as though I need to respond to some of the comments that Hone Harawira made earlier this afternoon. I had hoped to make this contribution during the debate on the last part, before the vote was taken, but I was prevented from doing that. But the points I will make are still just as relevant. The ACT Party totally agrees with Hone Harawira that this bill needs to be opposed, and opposed at every step. We will be fighting to the bitter end.

One of the points we make is in respect of what Hone said this afternoon: that this was a confiscation of Māori rights. I think Hone and some of his supporters are of the view that iwi and hapū have customary title to, have ownership of, the entire seabed and foreshore out to the end of the territorial sea, to the extent of the 12-mile limit. It is important to come back to the decision in the Ngāti Apa case. Once again, the Attorney-General quoted that case this afternoon. The view that Māori own the seabed and foreshore is a common view amongst some Māori. It is interesting that a hīkoi is marching to Wellington as we speak. But I suggest that the reason the hīkoi has been formed and is marching on this occasion is a lot different from what it was in 2004. In 2004 the hīkoi was marching for access to the courts; it was acting for access to the courts and for justice. My colleague the Hon Rodney Hide joined that hīkoi when it arrived in Wellington.

I will comment on some of the observations made by Dame Sian Elias, the Chief Justice. She said in the Ngāti Apa case: “This appeal deals only with the initial question of whether the Maori Land Court can enter into the substantive inquiry.” The appeal dealt only with whether the issue could legally go before the Māori Land Court. It did not deal with whether iwi and hapū have customary title. She went on to say: “The significance of the determinations this Court is asked to make should not be exaggerated. The outcome of the appeal cannot establish that there is Maori customary land below the high water mark.” There you have it. She said that the outcome of the Ngāti Apa case cannot be exaggerated. It did not establish that there was Māori customary land below the high-water mark.

Ever since that judgment, despite her observations that it did not determine whether there was Māori customary land below the high-water mark, a group of New Zealanders has believed that is the case—that Māori own the seabed and foreshore. In this case we have seen the National Government take fright, as the Labour Government took fright in 2004 with the passing of the Foreshore and Seabed Act. Both National and Labour have sought to restrict the rights of iwi and hapū to go to court to claim their customary title, I guess under a belief that they would win large amounts of New Zealand.

In this case they have set a codification—a series of tests—that the Attorney-General says will lead to certainty and to equity. I will explain in my call why that will do exactly the opposite, why it will not lead to certainty, and why it will not lead to equity. Interestingly, Dame Sian Elias goes on to say: “Nor will the appeal resolve questions of the nature of any property interest in land (whether it approximates a fee simple interest or whether it is lesser property).”

I will focus most of my remaining time on the issue of customary title, but before doing so I will comment very briefly on the concept of mana tuku iho. Essentially, mana tuku iho creates a universal right of consultation. Pita Sharples and Tariana Turia wrote in the New Zealand Herald last week: “The new bill acknowledges that ALL coastal iwi have connections to the coast. Their mana tuku iho (inherent authority) entitles them to protect their wāhi tapu and to be consulted on conservation and resource-management issues.” One of the reasons this bill is a racist bill is that that right is given only to coastal iwi. What about other people living on the coast who are not iwi? What about non-Māori New Zealanders who also live on the coast, whose families have lived on the coast for over 100 years? They do not have the same rights as provided for in this bill. If that is not a racist provision, I do not know what is.

The issue comes to the tests of marine title and the rights that derive from it. National has perpetuated the myth, the fiction, that only very small areas of New Zealand will be opened up to claims of customary title. Its members have said in their publications, for example, that “The test”—for customary title—“requires continuous, exclusive use and occupation of an area since 1840. As you can imagine, that is not an easy test to meet.” Well, it is not an easy test to meet, but that is not actually the test. One does not actually have to prove continuous and exclusive occupation; one has to prove exclusive and continuous occupation without substantial interruption. What is the effect of that proviso? We do not know, Christopher Finlayson does not know, and the Court of Appeal does not know. To suggest that this bill will lead to certainty is a load of hogwash.

If when I look at the Minister’s Supplementary Order Paper 207, I see the addition of new clause 61(2A), which states: “The use at any time, by persons who are not members of an applicant group, of a specified area of the common marine and coastal area for fishing or navigation does not, of itself, preclude the applicant group from establishing the existence of customary marine title.” So iwi can make a claim for customary title, iwi can say they have occupied the land exclusively, but the fact that other people come and fish, boat, and navigate through that land does not preclude iwi from making a claim, it does not preclude the court from awarding iwi customary title, and it does not preclude the Government from entering into an agreement to grant customary title.

To perpetuate the fiction, the myth, and to mislead New Zealanders that the right to apply for customary title will apply to only a very small part of New Zealand is, I think, deceptive in the extreme. I think National is relying on the fact that New Zealanders are not taking an interest in this issue, but I think in time that they will, and they will take an interest in ever-bigger numbers.

I turn to clause 64, and to the benefits that flow from being granted customary marine title. The first thing we know is that with a grant of customary marine title comes the ownership of minerals, other than those deemed to be owned by the Crown under the Crown Minerals Act: basically, all minerals and resources other than oil, gold, silver, and natural resources. That right is granted specifically in this bill out to the 12-mile limit—out to the limits of the territorial sea. Well, in 1840 the limit of the territorial sea was recognised as being 3 miles, so in this bill we are setting ourselves up to transfer ownership of resources from all New Zealanders to a small, select group of iwi who can meet these tests. The Government suggests that that is equity, but how does that protect the rights of all New Zealanders?

Let me go on. There is also the right to protect wāhi tapu. I would be the first to recognise Māori custom; I would be the first to recognise sacred areas. But New Zealanders probably do not appreciate that when a claim is lodged for customary title, areas can be designated as wāhi tapu. They are designated as sacred, and that gives iwi the right, if customary title is subsequently granted, to say that is a sacred area and they do not want other New Zealanders to enter.