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Marine and Coastal Area (Takutai Moana) Bill

In Committee

Thursday 17 March 2011 (advance copy) Hansard source (external site)

Debate resumed from 16 March.

Part 4 Administrative and miscellaneous matters

FinlaysonHon CHRISTOPHER FINLAYSON (Attorney-General) Link to this

Part 4 of the Marine and Coastal Area (Takutai Moana) Bill sets out procedures relating to the recognition of customary interests either by agreement or order of the court, and it deals with some administrative details. The part I particularly want to focus attention on is Subpart 1, which provides the procedure for the recognition of customary interests. It can be done by either recognition by agreement, or recognition by the court.

The key changes proposed in the Supplementary Order Paper focus on the procedure for recognition by agreement. A number of people had made submissions both to the Māori Affairs Committee and to me personally about a desire for greater transparency. To make more transparent any agreement negotiated with the Crown for recognising customary title, the Supplementary Order Paper changes recognition agreements for titles to be brought into effect by an Act of Parliament instead of an Order in Council. That will allow scrutiny of agreements by members of Parliament at select committees, and it will allow the public some say in the matter.

The next point that needs to be addressed is an application for a recognition order. The matter of principle that people may wish to discuss concerns which court one should apply to. I have tried in the bill to provide the best of both worlds. An application will be made to the High Court, but the court may refer any question of tikanga to the Māori Appellate Court.

Members may wonder why I chose the High Court and not the Māori Land Court. I suppose I was very influenced by the history of the Ngāti Apa litigation that began in the Māori Land Court. It went to the Māori Appellate Court, thence to the High Court, and then the Court of Appeal, and by leave it could have gone to the Privy Council.

I am also very conscious that proceedings in both the Māori Land Court and the Māori Appellate Court are capable of being the subject of applications for judicial review. So if anyone really wanted to delay a matter or oppose a matter down to the wire, the easy thing to do, if something had begun in the Māori Land Court, was to seek judicial review of anything.

I was very concerned about cost and delay, which is why I have put in the bill that the proceeding commence in the High Court, but, as I say, it is best of both worlds because there can be reference to the Māori Appellate Court for any question of tikanga. The opinion of the Māori Appellate Court will be binding on the court. The court may also refer any question of tikanga to an expert.

The next point I wish to address is contained in clause 101, “Service of application”. This provision should allay any fears that it will simply be a question of an application served on the Crown. Local authorities have to be served, the Solicitor-General on behalf of the Attorney-General, and, importantly, any other person whom the court considers is likely to be directly affected by the application, and there needs to be public notice of the application.

Clause 105 is an important clause, and it is the subject of an amendment in the Supplementary Order Paper. This is the burden of proof clause, and it has been clarified to ensure that applicant groups are expected only to prove the positive elements in the tests. Some people have complained that that shows favouritism to applicants. It does nothing of the sort. The Court of Appeal in the Ngāti Apa case made it very clear, based on Canadian and Australian authority, that the onus of proving extinguishment lies on the Crown and that the necessary purpose must be clear and plain. Those authorities are well established.

Subpart 3 deals with regulation-making powers. The only provisions I refer honourable members to for the debate are in clause 118, which provides for the Governor-General, by Order in Council, to make regulations for administrative purposes, and in clause 119, which states that regulations may be made for the management of the common marine and coastal area, particularly subclause (1)(a), which provides for regulations for the safety and protection of members of the public who exercise rights of access in and over the common marine and coastal area.

Clause 119(1)(e) prescribes offences, which is something that is not contained in the 2004 Act. An amendment is also proffered in the Supplementary Order Paper to provide that any person breaching a regulation or by-law may be directed to stop. Most of the provisions in this part of the legislation are of an administrative nature, but there are some important questions, dealing with both recognition by agreement and order of the court, that need to be addressed.

ParkerHon DAVID PARKER (Labour) Link to this

In my opinion the most important part of Part 4 is, as the Attorney-General has already adverted to, the way in which people can have rights recognised under this legislation—whether it can be done through an Act of Parliament or just by agreement through the Minister, or whether it needs to be done through the court. I want to come back to that point, but, before I do, I want to say that I was reflecting overnight on the tone of this debate, which I am pleased to say is quite measured. I think it reflects well upon us as a Parliament that it is measured.

QuinnPaul Quinn Link to this

Thank you, David.

ParkerHon DAVID PARKER Link to this

Mr Quinn says thank you.

HipkinsChris Hipkins Link to this

He hasn’t participated in the debate.

ParkerHon DAVID PARKER Link to this

Mr Quinn has not yet taken a call on a number of the parts, so maybe that is one of the reasons why his contribution has been measured. I think it is important to put on record the sorts of comments that were being made at the Committee stage of the debate in 2004, and I will quote some of them.

Dr Wayne Mapp, a current Minister in the Government, said: “What the Government is doing here is clearly preferring Māori above all members of the community … So it is very, very clear that we have two classes of citizenship. Māori are in the preferred position.” That was Dr Mapp. Gerry Brownlee, now Leader of the House and currently the Minister away in charge of earthquake recovery in Christchurch, said: “The bill is designed to placate Māori with a cheque and convince other New Zealanders that everything is OK when it is not.”

ParkerHon DAVID PARKER Link to this

It is absolutely disgraceful. That bill did not go as far as this one does. The Hon Nick Smith said: “This bill is racist. This bill is flawed.” That was his contribution.

RobertsonGrant Robertson Link to this

He said that? Extraordinary!

ParkerHon DAVID PARKER Link to this

I am reading extracts from Hansard in November 2004. We had contributions from Nick Smith later. He was responding to Dover Samuels, who was responding to fears that had been rarked up in New Zealand that the Foreshore and Seabed Bill was going to prevent people from having a barbecue on the beach. Those comments had been made by a number of people in the National Party. Don Brash was one of them; Bill English, from memory, was one of them, too. So Dover Samuels was saying that that was not the effect of the Foreshore and Seabed Bill, and actually history shows that Dover Samuels was right. There is now agreement that that was never going to be the case. What did Nick Smith say? He said: “Dover Samuels said that it would not make any difference to families wanting to go down to the beach and have a barbecue. Well, yes, it does and I will tell members why. In relation to the 10 percent that his Māori caucus claims will now be foreshore and seabed reserves, it will be for the management committee to decide who will be able to have a barbecue and where.” That is absolutely irresponsible. This was never about the beach; it was about the part of the foreshore that is wet. Access for recreational purposes was never ever at risk, and was expressly provided for in the Act. That was one of the most despicable acts of undermining race relations that we, I hope, will ever see in this Parliament.

In the third reading, after all that, Gerry Brownlee again came back with comments. He was the National spokesperson on Māori Affairs at the time, and that is why it is important that we remind New Zealanders how despicable these comments were. He said that “this is the first time a Government in New Zealand has passed a law that is as overtly racist as this one.” That was in reference to the Foreshore and Seabed Act, which National now says was not good enough in terms of protecting Māori rights. But at the time National members were saying the Act went far too far. So when I hear those members, including Tau Henare, saying “Apologise, apologise, apologise”—

HenareHon Tau Henare Link to this

That’s right; say sorry.

ParkerHon DAVID PARKER Link to this

—to members on this side of the Chamber in respect of legislation that was not perfect but was not nearly as bad as what is now presented, and that was done against the climate of those sorts of comments, I say to Mr Henare that he should look at himself and record his own statements on talkback radio. He was not in Parliament at the time but he was rarking things up on radio.

I turn to a particular point of difference, which is one of the largest differences between National and the Māori Party, and the other parties in Parliament, and that is whether agreements should be able to be made between a Minister and the Crown, and then be given effect to by Parliament. The legislation as it came to the Māori Affairs Committee was even worse than that which has been proposed by the Attorney-General now, and I acknowledge that change. It stated that there could be agreements between the Minister and claimant groups that would be given effect to by way of regulation, without either parliamentary oversight or court oversight. The Supplementary Order Paper changes that and states that we can now have legislation to that effect. The Attorney-General says there is precedent for that, because that is how the Ngāti Porou settlement was given effect to.

The position that other parties in this Parliament have got to is that we think there should be absolutely fulsome recognition of unextinguished Māori interests in the foreshore and seabed, but we also think there should be no more than fulsome recognition of unextinguished customary interests. If it is more than fulsome recognition of an unextinguished interest, it is not recognition of a common law right; it is actually a Treaty settlement. The mixture of these two concepts needs to be handled very carefully. Although we support Treaty settlements being pursuant to an Act of Parliament, we do not support recognition of existing interests in the foreshore and seabed through Parliament. We think those things are more cost-effectively and more properly, openly transparently, fairly achieved through the courts.

QuinnPaul Quinn Link to this

Gobbledegook.

ParkerHon DAVID PARKER Link to this

“Gobbledegook”, says the “lawyer” from the other side. We already covered, yesterday, the issue that it is certainly not cheaper through Parliament; it costs over $2 million for every statute in this Parliament. So the cost of a statute giving effect to a foreshore and seabed agreement is probably worth more than the underlying interests—a bit of a nonsense in the first place—and it certainly costs more than the alternative process through the courts. There are a range of interests—

QuinnPaul Quinn Link to this

They’re not allowed legal aid, for a start.

ParkerHon DAVID PARKER Link to this

What was that? Not if we take legal aid into account?

QuinnPaul Quinn Link to this

I said they’re not allowed legal aid under this bill.

ParkerHon DAVID PARKER Link to this

I was saying that even if we were to subsidise the cost of court processes, it would be a lower cost to the taxpayer to do that than to do it through Parliament. It is patently clear that that is the case. That is what I was saying.

Why are court processes important? There is not a balancing of interests here; there is recognition of extant, existing Māori interests in the foreshore and seabed. We all in this Parliament now agree that that should happen. We did not agree back in 2004. National opposed that at the time, most vociferously. But everyone in this Parliament now agrees that there should be proper recognition of continuing customary interests in the foreshore and seabed that have not been extinguished through history. Court processes, though, make sure that all relevant interests are taken into account, because if we under-recognise something, we are actually poking a stick in the eye of the Māori claimant. Many Māori claim that that is the effect of this legislation. Conversely, if we go too far and recognise a customary interest that under common law would have been found to have been extinguished, we are actually abrogating a public right in favour of a private right in respect of that section of Māoridom. The courts are the ones that are best placed to make that determination.

Courts are well versed in ensuring that the interests of anyone who might be adversely affected are taken into account. They are well versed in protecting the property rights of Māoridom, or indeed any other group, against inappropriate confiscation. That has always been their central role. At times courts in New Zealand—and the old Ninety Mile Beach decision might be one of them—have got it wrong. Now that we have the court saying that there are extant interests and that they ought to be recognised, why do we think Parliament should take that over? The High Court has always been the guardian of Māori—well, not always. For the last two or three decades the High Court has been an effective guardian of Māori aspirations to property rights. Whether it be State-owned enterprise interests or whether it be, pursuant to Treaty settlement, assets being properly reserved to be available for Treaty settlements, the High Court and the Court of Appeal have guaranteed those rights to Māoridom. It actually has not been Parliament that has led that. I am somewhat ashamed to say that it has not been Parliament that has led that. It has been the courts that have led that. Parliament has sometimes given recognition to that and set up processes that have facilitated that, but it has not been Parliament that has been the primary guardian of those interests; it has been the courts. I think this legislation is wrong in saying that we—

StreetHon MARYAN STREET (Labour) Link to this

Speaking on Part 4 of the Marine and Coastal Area (Takutai Moana) Bill, which is named in a fairly anodyne way, “Administrative and miscellaneous matters”, I think the Minister in the chair, the Attorney-General, was correct in drawing to the House’s attention the actual import of this part of the legislation.

My colleague David Parker has teased out some of the legal implications of the process of recognising customary interests, which is addressed in this part. I will pick up on this issue, because we have a situation where it is possible for the recognition of customary rights to be made by an agreement, by the recognition of an order of the court, or through legislation, through an Act. I think this process is really problematic. The bit I think is problematic is the bit to do with recognition by agreement in clause 93 and following clauses.

It becomes problematic because an applicant group and the responsible Minister can enter into an agreement recognising a protected customary right or a customary marine title without reference to anybody else. That is problematic. If the agreement is effected through an Order in Council, then the Minister asserts that it is subject to parliamentary scrutiny. That process would have a huge impact on the work of the Regulations Review Committee and would politicise the committee in a way that is not helpful to the procedures of Parliament. The only way there would be parliamentary scrutiny of an Order in Council is through the Regulations Review Committee. The committee receives Orders in Council and regulations. Politicising the committee is not helpful to the machinery of either government or, more important, Parliament. I think it is an unhelpful provision.

I also draw attention to the Minister’s Supplementary Order Paper 207. As we know, this 73-page Supplementary Order Paper, which is about half the size of the original bill, includes changes to clauses 93 and 94 that relate to the agreements that are to be called recognition agreements and to how they are to be brought into effect. The difficulty is the lack of transparency around the process. These agreements are potentially backroom deals. They are potentially deals done in private that nobody has access to and that certainly the general public does not have access to. That process is not an advancement of lawmaking in this country. It is certainly not a desirable basis on which to settle this issue, which is fractious and complicated.

I draw the Committee’s attention to Labour’s amendment to clause 94, which puts recognition agreements, or the proposed agreements made under clause 93, under the auspices and the authority of the High Court, and states that unless the High Court can confirm by order that the requirements in other parts of the legislation are met, the proposed agreement can have no effect. So we send it back to the courts.

The cry from the Māori Party was that it did not have its day in court. Now the Māori Party is looking to support secret deals that will not have their day in court unless this legislation is amended.

HarawiraHONE HARAWIRA (Independent—Te Tai Tokerau) Link to this

Tēnā koe, Mr Chairperson. Tēnā tātou katoa e te Whare.

Members of both National and the Māori Party have deliberately tried to disrupt the flow of my kōrero, particularly during Part 3 of this Marine and Coastal Area (Takutai Moana) Bill. As we turn to Part 4, I look to their being perhaps a little more understanding and accepting of the fact that the issues that I raise during this debate, I do not raise because of any personal animosity towards them, but because of a genuine and widely held belief that this bill is not in the best interests of the Māori people, the Māori Party, or, indeed, Parliament itself.

As I turn to discuss Part 4 I pledge not to raise internal Māori Party caucus issues, nor to personalise the relationship between members of the Māori Party caucus and Ministers of the National Government, because this debate should not be about what one person may or may not have said to another in the privacy of a caucus meeting, nor should it be about the relationship between MPs in this House, even though such unsubstantiated trivialities were levelled against me during the debate on Part 3 of this bill last night. This debate should be about the principles underpinning the legislation the Committee is discussing.

As I turn to Part 4 I will try to focus, as I have done in all previous speaking opportunities during the debate, on the issues highlighted by the bill and on the public statements of relevant players in the development of the legislation, because Māori people deserve to know exactly how they will be affected by the decisions of the parties and persons who are promoting the bill. Because I am a member of Parliament elected to represent the specific interests of Māori, it is that particular area that I intend to focus my comments on.

I will begin my contribution to the debate by asking whether the Māori Party knows that the legally prescribed detail found in clauses 94 to 97 of this bill, and other legislation like it in the field of Treaty settlements, and in the oversight, the field of governance, and management of natural resources is a dangerous turn for Māori by forcing us into the legal environment whereby the value of traditional Māori principles or kaupapa Māori will be determined and legal precedents and benchmarks will be established that will impact on those principles for ever more. Does the Māori Party realise that allowing the courtrooms to become the battleground for determining the rightness, or otherwise, of kaupapa Māori, as noted in various clauses found in Part 4 of this bill, is detrimental to the principles themselves and to the world view they represent? Will that make the Māori Party reconsider the position it announced the other day that “This bill is in the House on our initiative. Make no bones … this is a Maori Party bill … We are pleased to stand here in support of this bill.”?

Does the Māori Party realise that by so doing, it is sanctioning the legal capture of kaupapa Māori as found in this bill, thereby limiting the effectiveness of those principles by tying them to legal concepts that are derived from a society that over time has developed into the resource-exploiting, consumer-dominated society we see today—a society that in many ways is in conflict with the Māori world view that kaupapa Māori is based on? Will the Māori Party, when it realises what it has done, think about withdrawing its view that “This bill is in the House on our initiative … this is a Maori Party bill.”?

Does the Māori Party realise that by giving its support to clauses 97 to 103 of Part 4 of this bill it is endorsing the Government’s attempts to codify the principles I have already mentioned in a way that our tūpuna would not agree with and our people will not accept, and that by supporting this bill the Māori Party is setting the stage for decades of litigation as Māori seek to reclaim ground that has been lost through the passage of the bill? If the Māori Party does realise the mistake it has made, will that help it to think about dumping the decision it announced the other day that this bill is a Māori Party bill?

Does the Māori Party realise that by giving its support to the many clauses noted under Part 4 of this bill it is setting the stage for the spectacular loss of Māori connection to the foreshore and seabed by forcing Māori into the High Court, where $100,000 is the price of an opening address, half a million dollars is the cost of progress, and unfortunate rulings are the order of the day? When the Māori Party realises that the bill forces Māori into the “Court of Great Cost and No Return”, might it not actually disown the position it announced the other day that “this is a Maori Party bill … We are pleased to stand here in support of this bill.”?

Does the Māori Party know that by its support of aspects of the law as outlined in specific clauses under Part 4 of this bill it may be signalling the end of all Treaty claims to the foreshore and seabed, because once the bill is passed, the foreshore and seabed will no longer be in Crown hands and will become common space, owned by no one, and therefore unable to be claimed by Māori? When the Māori Party realises that the bill will put an end to all Treaty claims to the foreshore and seabed, might not that finally make the Māori Party wake up and say that perhaps it made the wrong decision when it announced the other day that this is a Māori Party bill and that it is pleased to stand here in support of it?

Does the Māori Party know that its support for clause 105 of the bill, whereby Māori are required to prove customary title, is inconsistent with the position that is widely held by Māori throughout the country that Māori should not have to go to court to prove what the whole world already knows anyway: that Māori were here first? Why do we have to prove it? Will the Māori Party finally accept that the position that “this is a Maori Party bill … We are pleased to stand here in support of this bill.” is simply untenable to Māori and unacceptable to all those who support the principles of justice?

I began my speech by saying I hope that those in the Māori Party and National who have been heckling while I was speaking—but not today—understand and accept that the issues I raise during the debate on the bill I do not raise because of any personal animosity but because of a genuine and widely held belief that the bill is not in the best interests of the Māori people, the Māori Party, or, indeed, Parliament itself.

The arrogance of the Government in refusing to participate in this debate is widely noted by all New Zealanders. The decision by the Māori Party to adopt the same attitude is duly noted by all Māori, as well.

Tū te Ao Māori, tū te rangatiratanga, tū Motuhake. Tēnā tātou katoa.

[Long live Māoridom, sovereignty, and independence. Greetings to us all.]

HoromiaHon PAREKURA HOROMIA (Labour—Ikaroa-Rāwhiti) Link to this

Kia ora. E mihi kau ana ki te Minita kei te tae tata atu tātou ki te otinga o te ture nei. Nā te mea i roto i āku e taumahatia atu te mahi pēnei tonu, engari e pai ana kei te tae tata atu ki a tātou.

[Thank you. I congratulate the Minister as the completion of this bill draws near. I understand that this work is strenuous, but it us heartening that we are reaching the end.]

I will pick up on a couple of points in Part 4—firstly, the recognition of protected customary rights. Having listened to the summary of the Minister in the chair, the Attorney-General, I will make a few points and I hope that he takes note. Clause 92, “Recognition of protected customary rights and customary marine title”, states: “(1) A protected customary right or customary marine title relating to a specified part of the common marine and coastal area may be recognised by—(a) an agreement … or (b) an order of the Court …”. I think that one of the things we should say up front now concerns the cost in relation to that. I hope that we do not get into a continued litigious barrage where people just carry on sucking the pocket of the State, or, worse still, cost iwi and hapū outrageous sums of money for nought. So I hope for that, in the sense of this agreement.

In the Minister’s summary of issues relevant to the court, it was interesting to listen to his appraisal of why applications for a recognition order should go to the High Court. I think that in relation to what Mr Harawira said, it is quite right that we must be careful to ensure—and I was trying to say this in a different way yesterday—that the tikanga and tuku iho aspects need special expertise. I hope that the Minister will see it right and gather around him able advisers, or people who can ensure they have an understanding of tuku iho and aspects of tikanga that are relevant to Māori that they have inherited over generations, not just through their genealogical ties but also through living tikanga and tuku iho, through practising it and minding it. I hope the Minister will ensure that we have people who can decipher those aspects and make sure they do not get put asunder by over-endowed legalese, even though that is what creates legislation in this country. But there is a place for understanding—

MallardHon Trevor Mallard Link to this

I wouldn’t call the Minister over-endowed.

HoromiaHon PAREKURA HOROMIA Link to this

—the great Minister—and I hope that he makes sure of that. This is the serious part, where Māoridom would really struggle with any attempt to realign aspects of tikanga and tuku iho. It is a serious part; it is a very, very serious part. This issue was relevant to the usage of the Māori Appellate Court and the Māori Land Court, because it has been their everyday business. They are practised in it. It is like the Environment Court and the Family Court; they are practised in it. They understand the fundamentals, and they understand the nuances that drive their activity. So I say kia ora to the Minister.

When we get down to clause 95, “Registration and notification of agreement”, we see that in subclause (2)(c), a copy of the agreement has to be sent to “(i) the local authorities … (ii) the Minister of Conservation; and (iii) the Minister of Fisheries; and (iv) the Minister of Māori Affairs; and (v) any other person”—and Joe Bloggs—“who the chief executive considers is directly affected by the agreement.” That is quite interesting. I ask the Minister—hopefully—how he will ensure true partnership and cooperation between all of those agencies, and how he will ensure that the cooperation aligns with the real needs of iwi and whānau. I place that question with him. We know well enough about the internal differences that can happen in agencies, I tell the Minister. I hope there is some template or guidance to ensure that the situation does not end up like what I saw in my time in relation to agencies coming together, where it was all about their key performance indicators and outcomes. Those are right, but at the end of the day the last thing on the agencies’ radar is ensuring surety and positive development that will benefit Māori.

Under clause 101, “Service of application”, I was wondering, to put it quite crudely, whether there was financial assistance in this area, because a lot of this talk behoves the fact that there is a cost. I think the worst thing would be to punish iwi and hapū, or to distance them from the opportunity, because they have no pūtea. I need to be as crude as that, I tell the Minister; I hope that that need is taken account of, and that we do recognise that. Local authorities can put up our rates and get a bit more take, but I ask the Minister whether there is financial assistance. It is all too easy in preparing new legislation to forget that, and to say: “We will do this and we will do that; now you Māoris go and apply. You register, you do whatever else, and you build up your plans, but just carry on, run a raffle and whatever else, and raise the finance.” It is as crude as that; I hope that a very clear direction is sought by the Minister.

With regard to clause 105, “Burden of proof”—and this is an interesting one, I tell the Minister; I have heard him wax lyrical on this two or three times in other situations—quite certainly in this case it has to be about the iwi proving what they are claiming. That is reasonably straightforward. But as the Minister said, it is up to the Crown to disprove that, to put spokes in the wheel and try to distort it—not necessarily to undermine it—or to prove it is not as iwi claim. Again, apart from financial assistance, I think that a fair bit of expert help may be needed there. It is quite easy for people to get up and make a claim because they know things through tradition and whatever else, but at the end of the day, I tell the Minister, I hope that he recognises the need for financial assistance.

In clause 119, “Regulations for management of common marine and coastal area”, there is mention of the Governor-General. There will be a great new Governor-General. I mihi to the present Governor-General, who is a great man, and to this new bloke, this new tangata whenua, who will be wonderful, wonderful. It is great that he will have the duty and role to instigate parts of this legislation. This clause certainly is about the Governor-General acting, by Order in Council, on the recommendation of the Minister of Conservation—again, it is about partnerships. I ask how the partnerships are defined and ensured so that Māori will get a fair go. The member Tau Henare over there mortally wounded us yesterday by abusing us, and you know, it is really hard to take that sort of thing. We get it from Pākehās, we get it from the media, but to get it from our own kin, like Tau Henare, is very, very upsetting and undermining. I think it is outlandish.

HenareHon Tau Henare Link to this

What’s that, e Rōpū Reipa?

HoromiaHon PAREKURA HOROMIA Link to this

Te Rōpū Nāhinara—Pirimia Key—said: “National will look to abolish the Māori seats.”, and also said: “If the Government does not legislate to protect ownership of the foreshore for all New Zealanders, then we will put forward our own bill.” There is something very mysterious there. I mihi to the member for Te Tai Tonga in that other party, because, if he abolished the Māori seats—and the difference in the vote here is about three or four seats—this bill would not go through. At this late time, I challenge and plead with Māori Party members to change their vote, because National said in July 2003 that it would get rid of the Māori seats. National is waiting for Māori Party members to sanction this bill and get it through, and then it will get rid of their seats. Look, it is not too late—seriously, it is not too late. Those members should turn away, because that is what he said—

HenareHon Tau Henare Link to this

What does the agreement say?

HoromiaHon PAREKURA HOROMIA Link to this

What does the agreement say? In 2004 Dr Brash, who was the best friend of Mr Tau Henare—who used to stand by him on those “Iwi/Kiwi” placards and all that stuff; he used to rap it up—

HoromiaHon PAREKURA HOROMIA Link to this

That is it—Brash and “Trash”. They used to stand on the beach, yell out, and insult Māori. Dr Brash said: “We believe that there should be one law for all, that we are all New Zealanders with the same rights and obligations under the law. New Zealanders do not want to have separate titles and development rights for our beaches according to race.” Then Gerry Brownlee chastised us. It was Gerry Brownlee, who is doing a reasonable job in Christchurch, who said: “We do not favour a process that would give Māori a greater say than non-Māori in the management of these significant resources.” National has made its position on this clear, right from the start. “We believe our beaches and our lakes should belong to me.”—that is what Gerry said.

I plead with the Māori Party to understand what National said in 2003. National said that it would get rid of the Māori seats, so I am not too sure why Māori Party members are making the difference in passing this legislation, or why they are chastising the public and boasting that it is their bill.

BoscawenHon JOHN BOSCAWEN (Deputy Leader—ACT) Link to this

How interesting that we have just heard Mr Parekura Horomia talking about the virtues of one law for all, and Tau Henare asking what is wrong with that. One would believe, with that interjection, that Tau Henare actually believes we should have one law for all, which highlights that Tau Henare does not understand the Marine and Coastal Area (Takutai Moana) Bill. He does not understand the detailed provisions in this bill. One of the clauses we are debating is clause 93 in Part 4, and that clause restricts iwi and hapū—

HenareHon Tau Henare Link to this

Where’s Hilary?

BoscawenHon JOHN BOSCAWEN Link to this

—I say to Mr Henare—to bringing claims within 6 years. Why should iwi and hapū have the ability to bring claims restricted? That is just one example of why we do not have one law for all, and it is just one example of a provision that is bad for iwi and hapū. I can point to a number of provisions that give iwi and hapū benefits that other New Zealanders do not have, but, equally, clause 93 takes away from the rights of iwi and hapū.

In this debate—and I am hoping to make a number of contributions on Part 4—I want to focus specifically on clauses 93 and 105. My colleague Hilary Calvert has a number of amendments, and a number of them are very substantial and make substantial improvements to this bill. But before detailing those amendments, and before coming back to clauses 93 and 105, I need to briefly comment on the interaction and the comments from Hone Harawira.

Hone Harawira has used this debate as a continued opportunity to take shots at the Māori Party, and I need to repeat that this bill is a victory for the Māori Party. I think we can see that in the fact that 200 people are marching towards Wellington in a hīkoi, whereas 7 years ago there were 40,000. There may be a perception that Māori do not support the Māori Party on this bill, but I have no doubt that over the next 7 months, as the Māori Party gets out into the community and explains the massive benefits—notwithstanding that 6-year restriction I have just referred to—it will build on this support, and the Māori Party will be returned to Parliament.

One has to look no further than the article published in the New Zealand Herald last Wednesday where Tariana Turia and Pita Sharples made a point of all the benefits they had achieved, and they concluded: “Make no mistake—the Maori Party persuaded the National Party to support this bill. We will work with any party that supports the kaupapa of our people. … For a small party, we have achieved amazing results in a short time.”

HoromiaHon Parekura Horomia Link to this

I raise a point of order, Mr Chairperson. One thing that is important is to ensure that our language is pronounced well. The member said “kaukapakapa”. It is actually “ko-papa”; “ko” as in “toe”; “pa” as in “pa”—kaupapa, not kaukapakapa.

BarkerThe CHAIRPERSON (Hon Rick Barker) Link to this

I thank the member. I am sure we can all improve our pronunciation of the Māori language, myself included. But I say to the member, with the deepest respect, that in the strict rulings of this Chamber, the kawa of this Chamber, that is not a point of order. But it was helpful.

BoscawenHon JOHN BOSCAWEN Link to this

What the ACT Party, and I have no doubt the Labour Party, have tried to have is a debate based on ideas and arguments. It has been very, very sad to see this debate cast as a racist debate in the media. I found it particularly sad when just half an hour ago, Tariana Turia, alongside me and Rahui Katene, made the comment, when responding to David Parker’s submissions: “No, because you’re a bunch of racists.” I heard those words myself just a few feet from my seat, and I found it very sad that those comments were made by someone who has achieved so much for Māori.

I will turn now to clause 105, which states that to bring a claim for customary title it is not actually necessary for iwi and hapū to prove that claim. In actual fact, it reverses the burden of proof. It says that those customary interests are deemed to exist unless proven otherwise. In other words, Māori, iwi, and hāpu have a customary interest in the foreshore and seabed, now renamed the common marine and coastal area, unless proved otherwise. We heard from the Attorney-General, who said that there was nothing wrong with that and that was no big deal because that is the situation in Canadian and Australian common law, and we are doing nothing more than what has already happened. The Attorney-General either is trying to mislead New Zealanders or he does not understand his own bill; I suspect that he understands his own bill.

Clause 105 is very important. In 1840 Māori customary interests, iwi and hāpu customary interests, went out to the 3-mile limit. They went out to the limit of the territorial seas. This bill enshrines in legislation a customary interest that goes beyond that 3-mile limit out to 12 miles. It creates a customary interest whereby it is then on the Crown to prove that the customary interest does not exist. If one doubts the importance of the massive win that that clause gives and the massive transfer of wealth it will create from all New Zealanders to just some New Zealanders, one needs only to look at the speech Tariana Turia gave in this House in her second reading speech.

If we look at Tariana’s comments in Hansard, we see thatshe says: “There is also a very interesting provision, tucked away in clause 105, the burden of proof clause, which states explicitly that ‘it is presumed, in the absence of proof to the contrary, that customary interest has not been extinguished. … In other words it will be up to the Crown to prove that any interest had been extinguished—rather than placing the onus of proof on the whānau, hāpu and iwi.” So this bill creates a customary interest: the ability of iwi or hāpu to claim a customary title over land to the 12-mile limit, the territorial seas, which is a limit that was only just extended less than 40 years ago.

I come to clause 93. The ACT Party campaigned very strongly for the tightening up of this provision. We have said to New Zealanders that this provision, as it came to Parliament, originally provided for an Order in Council to give effect to an agreement on customary title. It did not have to come back before Parliament and be scrutinised by public scrutiny. Now the Government has moved on that; it has made this change. One might be inclined to ask why. One might be inclined to ask about the quality of the scrutiny that Parliament would give, because we saw that the Māori Affairs Committee scrutiny of this bill was very poor. The 520-page officials’ report and its recommendations were dismissed in an hour and a half. But nevertheless we have that scrutiny. So that is at least something to be grateful for. That is important, because the provisions of this bill are very, very wide ranging.

The Attorney-General has focused on the issue of free access. I wonder how many boaties are aware of the provisions of clause 28, which will be incorporated into those agreements to be scrutinised by Parliament. For example, boaties are allowed “to temporarily anchor, moor, and ground” a boat and are allowed to remain in a place “for a convenient time”. What is a convenient time for boaties? What does temporarily anchoring their boat mean? Does that mean they can anchor their boat for 1 hour, 3 hours, or a day? At what stage do they overextend their welcome and a customary title can charge them for mooring their boat? We do not know; the courts do not know. The courts will have to find out, and the Attorney-General has the audacity to come into this Chamber and create uncertainty. This bill does not create certainty.

I move now to some of the amendments that the ACT Party is putting forward, and there are several—

HenareHon Tau Henare Link to this

Several hundred!

BoscawenHon JOHN BOSCAWEN Link to this

There have been several hundred in total, I say to Mr Henare, and what a disgrace that we were in this Chamber last night after midnight voting on this bill and voting on the Attorney-General’s amendments. It is interesting that we are voting on the Attorney-General’s amendments, because if he had followed proper parliamentary process, we would have had those amendments in the select committee—the very select committee Mr Henare chairs, and like an animal all he can do is sit there and bark at me. He sits there and barks. If he had chaired the select committee properly and shown some leadership, we would not have been sitting in the Chamber after midnight to vote on the Attorney-General’s amendments. They would have been properly included in the report-back of the select committee.

I will move to the first of the major amendments that Hilary Calvert is moving. It is an amendment to clause 118(1).

KateneRAHUI KATENE (Māori Party—Te Tai Tonga) Link to this

I am grateful for the opportunity to speak on Part 4 of the Marine and Coastal Area (Takutai Moana) Bill. I want to speak particularly on clauses 97 and 105. Clause 97, as we know, allows the High Court to refer a question of tikanga to the Māori Appellate Court for its opinion or to obtain the advice of a pūkenga. The concept of pūkenga comes, of course, from the Māori Land Court and the Māori Appellate Court, where the court seeks the assistance of those experts who have experience and knowledge of tikanga Māori.

It really saddened me to hear the nature of the kōrero from the ACT Party around tikanga. One of the major achievements the Māori Party has secured in this bill has been to ensure that tikanga permeates the legislation. In that way we see the value accorded to Māori customary values and practices being reflected right throughout. I am mindful of the challenge left by former MP and esteemed Māori leader Tā Apirana Ngata and his much quoted words: “E tipu e rea”. In those words, Tā Apirana encouraged Māori to grasp the tools of the Pākehā world while at the same time cherish ngā taonga a o tūpuna Māori—the treasures of our ancestors. It was, if one likes, the notion of promoting excellence in both worlds.

I have to wonder whether the ACT Party has grasped the notion of living in a Treaty-based nation in which partnership means to cherish the foundations of the two Treaty partners, working in two worlds, Aotearoa New Zealand. A commitment to nationhood, driven from the Treaty, would mean that this House would never again be subjected to the cultural assault of tikanga being described in the terms of Alice in Wonderland.

For the sake of generations to come, I want to make it explicitly clear that we in the Māori Party understand that tikanga is consistent with kaupapa Māori—kaupapa such as kotahitanga, rangatiratanga, and whanaungatanga. Tikanga are our practices, that which is tika—true and accurate. Tikanga are derived from kaupapa Māori, the foundation of Māori culture, and the basis of Māori world views.

Ironically, the reference to Alice in Wonderland was made during a kōrero on the preamble—a preamble that, monumentally, introduces for the first time into any public environment or into any resource management - related legislation the kaupapa of manaakitanga and the tikanga that are derived from it. In Ngāi Tahu, for example, the concept of manaakitanga is the tikanga that tangata whenua practise towards manuhiri, and it enabled whalers from foreign shores to remain on the takutai and set up whaling stations.

The tikanga surrounding manaakitanga is such that the more hospitality that tangata whenua display, the more mana they demonstrably possess. Ngāi Tahu has great mana, as we have seen with their response to recent events that have struck the people of their rohe. So, as many people of great mana have done throughout New Zealand’s history, they gave without hesitation.

Manaakitanga, as mana in action, works only when the system of reciprocity on which it is based is understood. When this legislation states that it should be enacted to reflect the principle of manaakitanga, we are not entering a virtual rabbit-hole of unknown qualities or quantities. We know exactly what it is that we seek, and that is to restore the balance of mana and to uphold tikanga.

Although this bill does not propose mana motuhake, as some may wish to see, it does propose a relationship in keeping with those tikanga derived from the kaupapa of kāwanatanga and rangatiratanga. There is great mana in this. In order for the fruits of this exchange of mana to fully materialise, it is imperative that local and regional authorities step up to the mark in their exercise of kāwanatanga, giving mana to those expressions of rangatiratanga by the kaitiaki of takutai moana, such as the planning documents.

Although the misguided few look to role models such as Alice in Wonderland, I know there are those amongst us who look to our own Pacific role models—figures such as Māui, who looked beyond the horizon, using the wisdom of his ancestors and the boldness of his youth to seek change in the world.

The other key clause I want to refer to in Part 4 is clause 105. This is an extremely significant clause that has attracted great interest from those who have taken the time to read the bill. I do have to say in passing that it is hard to tolerate some of the statements I have heard in the public arena from people, including some MPs, unfortunately, who have not read the bill yet claim that they oppose it. I do not understand the logic whereby someone can be opposed to something but not actually know what they are opposing.

I would like to read from clause 105(3), set out on Supplementary Order Paper 207, which states: “In the case of every application for a recognition order, it is presumed, in the absence of proof to the contrary, that a customary interest has not been extinguished.” Clause 105, the burden of proof clause, is a major initiative, and I have to say it is a major initiative brought about by the member from the north.

The 2004 Act required Māori to prove that extinguishment of customary title had not occurred. Proving something had not occurred over a 170-year period was a significant burden on Māori. The takutai moana bill places that burden on the Crown, where it should be. If the Crown cannot prove extinguishment, then customary title will be recognised, provided the other elements of the test are met. Clause 105(2), set out on Supplementary Order Paper 207, provides that for the recognition of customary marine title “the applicant group must prove that the specified area—(a) is held in accordance with tikanga; and (b) has been used and occupied by the applicant group, either (i) from 1840 to the present day; or (ii) from the time of a customary transfer to the present day.”

Clause 105(3), as I have read out, provides that it is presumed, in the absence of proof to the contrary, that a customary interest has not been extinguished. The amendment is required, as the Government’s intention regarding burden of proof was unclear. The clause as redrafted is explicit that claimant groups must prove only the positive elements of the test—for example, the group has held the area or customary right has been exercised since 1840, in accordance with tikanga. This means the Crown is responsible for proving that the applicant group’s use and occupation of the area has not been exclusive, that there has been a substantial interruption to the group’s occupation of the area, or that there has been extinguishment at law.

The intention of clause 105 is to make it clear where the burden of proof lies for the evidence relating to the test for protected customary rights and customary marine title. I want to really highlight this initiative. It is something that I believe establishes a very clear precedent for working in a way in which tangata whenua and the Crown operate as Treaty partners. Clause 105 is a very important issue. It picks up what the Court of Appeal said in the Ngāti Apa case—that the burden of extinguishment lies on the person or body that seeks to have it extinguished; in this case, the Crown. The Crown has the burden of extinguishment, and that is where it should lie, and the advice I have received from iwi is that that is a just and proper thing to do. Kia ora.

DavisKELVIN DAVIS (Labour) Link to this

Earlier we heard Paul Quinn say that David Parker was talking gobbledegook. How appropriate; there is no member in the Chamber who is more qualified to recognise gobbledegook when he hears it. Paul Quinn is the member of the Māori Affairs Committee who takes 3½ minutes to ask a question that requires a yes or no answer, and in the course of that 3½ minutes he will answer the question three times himself, and then he will still contradict himself.

MallardHon Trevor Mallard Link to this

I seek the leave of the Committee for all ACT amendments on this part to be taken as one question.

BarkerThe CHAIRPERSON (Hon Rick Barker) Link to this

Leave is sought for that. Is there any objection? Objection is taken.

BoscawenHon John Boscawen Link to this

I raise a point of order, Mr Chairperson. I would like to express my disgust that that motion was moved as another Labour member of Parliament asked me to leave the Chamber in order to have a private discussion.

BarkerThe CHAIRPERSON (Hon Rick Barker) Link to this

That is not a point of order.

DavisKELVIN DAVIS Link to this

As I was saying about Paul Quinn, there is no better member of Parliament qualified to recognise gobbledegook when he hears it, and the glazed and dazed and tired expressions on the faces of members in the Chamber are not because they were up until midnight last night voting, they are because we are still trying to figure out the last question that Paul Quinn asked in the Māori Affairs Committee. So I thank Mr Quinn for his contribution to the debate on the Marine and Coastal Area (Takutai Moana) Bill. It has been going on for 3 days and that was the most intelligent comment he has made so far.

I come to the application for recognition orders as set out in Part 4, which is about applying for recognition of customary rights. The more I think about what a customary right is, the more irrelevant it seems to this whole bill. There are very few examples of what a customary right is other than the launching of waka and the collection of hāngi stones. Where I come from up north we collect hāngi stones on the land; we do not collect hāngi stones out at sea. I come from the Bay of Islands, where there are a lot of old volcanoes, so there is a lot of scoria and we certainly do not need to go diving for hāngi stones in order to collect them. Regarding the launching of waka, we take our boats out all the time every weekend, so why is it that we would need to go through the process of applying to be able to launch our boats? It would take time, it would take effort, and it would take money—I would say—to make an application to launch our boats and to collect hāngi stones if we wanted to go diving for them. Diving for hāngi stones would certainly do away with the need for lead weights on one’s diving belt; one would just need to hold on to the hāngi stones.

The process for going through an application is that people have to come up with the contents of an application for customary rights, which in itself is a process that I will go through with members. The original Marine and Coastal Area (Takutai Moana) Bill includes clause 100, “Registry for filing application”, although that is omitted by Supplementary Order Paper 207, and clause 101, “Service of application”. Clause 101 states: “The applicant group applying for a recognition order must serve the application on—(a) the local authorities that have statutory functions in the area of the common marine and coastal area … and—(b) any local authority that has statutory functions in the area adjacent to the area of the common marine and coastal area … and—(c) the Solicitor-General”—the words “on behalf of the Attorney-General” are inserted by Supplementary Order Paper 207. What is the Māori Party thinking about, wanting to put our people through this? I have gone through only half of the process just to launch a waka, or to launch a 14-foot aluminium dinghy to go fishing.

The next part of the process is set out in clause 102, “Public notice of application, which states: “(1) The application group applying for a recognition order must give public notice of the application. (2) The public notice must include, as a minimum,—(a) the name of the applicant group and its description as a hapū or iwi, … and (b) a brief description of the application, … and (c) a description of the particular area of the common marine and coastal area … (e) in the case of an application for recognition of a protected customary right, a description of the right; and (f) a date that complies with subsection (3) … and (g) the registry of the Court …”. This is a nonsense process, just so that hapū and iwi and applicant groups can go to get the hāngi stones they can get on land and launch waka. I cannot think of any other customary rights that one would need it for. Last night I mentioned getting pipis and diving for scallops, and I was corrected by my colleagues who told me that is all covered under the Fisheries Act, so we do not have to worry about that.

TremainCHRIS TREMAIN (Senior Whip—National) Link to this

I move, That the question be now put.

DavisKELVIN DAVIS (Labour) Link to this

The next part of the application process set out in Part 4 of the Marine and Coastal Area (Takutai Moana) Bill is that the applicant has to give notice of who may appear on an application for recognition order, then there are the evidence and burden of proof parts of the process. Supplementary Order Paper 207 suggests that clause 105, “Burden of proof”, be substituted with “In the case of the application for recognition of protected customary rights in a specified area of the common marine and coastal area, the applicant group must prove that the protected customary right has been exercised in the specific area; and continues to be exercised by that group in the same area in accordance with tikanga.”

The Māori Party members say that applicant groups—Māori iwi, hapū, and whānau—have to prove that they have been launching waka and collecting hāngī stones in the area in accordance with tikanga. My question to the Māori Party is why should applicant groups—our whānau—have to prove that stuff and go through an application process to prove a customary right to do what we as Māori just do anyway? In my belief, the application process is a total nonsense.

Clause 99 defines the contents of an application. Applicants have to “state whether it is an application for a recognition of a protected customary right, or of customary marine title,”. If it is an application for recognition of a protected customary right, applicants have to describe the applicant group and identify the particular area. Why should Māori have to identity the particular area where they want to launch their waka from?

Applicants then have to state the grounds on which the application is made and name a person to be the holder of the order. Applicants actually have to name someone to be a holder of an order for whānau to go and launch a waka off a beach somewhere. It is a nonsense. Applicants have to specify contact details for the group and for the person named to hold the order. They have to give the contact details—people’s phone numbers, email addresses, cellphone numbers, and addresses—of everyone who wants to go and launch their wakas or gather their hāngī stones out at sea. An application has to be supported by an affidavit. Applicants actually have to make a statement backing up why they want to have recognition of this right to go and collect their hāngī stones.

I feel that this whole part about recognition of a customary right is a nonsense. I just do not see why Māori have to go through this whole process to draw up an application, take it to court, register it, and do whatever they have to do, just to ask for the right to do what we have always done anyway.

That process is what the Māori Party will put our people through. Māori Party members sit there and say they are proud to put this burden of work on to our people for no reason. It is ridiculous. It is gobbledegook, as Paul Quinn says. It is gobbledegook. It is nonsense, and Rahui Katene is actually standing up and justifying it when it is just absolutely ridiculous. This issue is what our people marched for in 2004. As I said last night, they were not led on a hīkoi; they have been led up the garden path. They have had the wool pulled over their eyes by the Māori Party that this legislation is something good for us as a people. It is just an absolute joke. It is a nonsense. To quote the learned member across the Chamber, it is gobbledegook.

MallardHon Trevor Mallard Link to this

He’s not learned.

DavisKELVIN DAVIS Link to this

OK; that was excessive use of hyperbole there, I agree. I will wait for Paul Quinn to jump to his feet and to actually take a call and contribute to this whole debate, because so far he and the Hon Tau Henare have basically been barrelling out and chastising everyone else who stands up to contribute. People on this side of the Chamber have made rich and comprehensive contributions on the bill, and those two members have just sat over there and all they have done is throw bricks at everyone else who stands up.

QuinnPAUL QUINN (National) Link to this

I move, That the question be now put.

Link to this

A party vote was called for on the question,

That the question be now put.

Ayes 62

Noes 59

Motion agreed to.

The question was put that the amendments set out on Supplementary Order Paper 207 in the name of the Hon Christopher Finlayson to Part 4, and the following amendments in his name, be agreed to:

to omit from clause 102(2)(a) “a hapū or iwi” and substitute “an iwi, hapū, or whānau”; and

to insert in clause 120(1)(c) after “aircraft” “as defined in section 2 of the Civil Aviation Act 1980”.

A party vote was called for on the question,

That the amendments be agreed to.

Ayes 62

Noes 59

Amendments agreed to.

The question was put that the following amendments in the name of Hilary Calvert to clause 92 be agreed to:

to omit the heading;

to omit from subclause (1) “may” and substitute “must”;

to omit subclause (1)(a); and

to omit subclause (2).

A party vote was called for on the question,

That the amendments be agreed to.

Ayes 5

Noes 116

Amendments not agreed to.

TischThe CHAIRPERSON (Lindsay Tisch) Link to this

Before I move to further votes—and we have a number of amendments to go through and to vote on—I point out that voting is a serious matter and I ask that we concentrate on what is before us at the time. The next amendments are a typescript amendment in the name of Hilary Calvert to omit the heading to clause 93 and an amendment to subclause (1). These are out order as being inconsistent with a previous decision.

The question was put that the following amendment in the name of Hilary Calvert to clause 93 be agreed to:

to omit from subclause (2) “6” and substitute “1”.

A party vote was called for on the question,

That the amendment be agreed to.

Ayes 5

Noes 116

Amendment not agreed to.

TischThe CHAIRPERSON (Lindsay Tisch) Link to this

The next amendment in Hilary Calvert’s name is to clause 93(2) to omit “6” and substitute “5”. This is out of order as being inconsistent with a previous decision of the Committee.

The question was put that the following amendment in the name of Hilary Calvert to clause 93 be agreed to:

to omit from subclause (2) “years” and substitute “days”.

A party vote was called for on the question,

That the amendment be agreed to.

Ayes 5

Noes 116

Amendment not agreed to.

TischThe CHAIRPERSON (Lindsay Tisch) Link to this

The next amendment in Hilary Calvert’s name is to clause 93(2), to omit “years” and substitute “weeks”. This amendment is out of order as being inconsistent with a previous decision of the Committee.

The question was put that the following amendments in the name of Hilary Calvert to clause 93(2) be agreed to:

to omit “responsible Minister” and substitute “Minister of Statistics”; and

to omit “title” and substitute “title or wāhi tapu”.

A party vote was called for on the question,

That the amendments be agreed to.

Ayes 5

Noes 116

Amendments not agreed to.

The question was put that the following amendment in the name of Hilary Calvert to clause 93 be agreed to:

to omit from subclause (3) “Crown” and substitute “applicant group”.

A party vote was called for on the question,

That the amendment be agreed to.

Ayes 5

Noes 116

Amendment not agreed to.

TischThe CHAIRPERSON (Lindsay Tisch) Link to this

Further amendments in the name of Hilary Calvert to clause 93(3) to omit “Crown” and substitute “responsible Minister” and to omit “Crown” and substitute “applicant group” are out of order as being inconsistent with a previous decision. A further amendment in the name of Hilary Calvert to clause 93(4) to omit “Crown” and substitute “Minister of Science and Innovation” is also out of order as being inconsistent with a previous decision.

The question was put that the following amendment in the name of Hilary Calvert to clause 93 be agreed to:

to omit from subclause 4(a) “met” and substitute “met, and a commitment is made by the applicant group to not prevent free access for individuals and groups of the public”.

A party vote was called for on the question,

That the amendment be agreed to.

Ayes 5

Noes 116

Amendment not agreed to.

TischThe CHAIRPERSON (Lindsay Tisch) Link to this

The amendment in the name of Hilary Calvert to clause 93(4)(b), to omit “met” and substitute “met, and a commitment is made by the applicant group to not prevent free access for individuals and groups of the public”, is out of order as being inconsistent with a previous decision.

The question was put that the following amendment in the name of Hilary Calvert to clause 93 be agreed to:

to add the following subclause:

(5)The responsible Minister, upon receiving application from an applicant group to seek an agreement recognising a protected customary right or customary marine title, must direct the chief executive to, without delay, notify of this application in the Gazette.

A party vote was called for on the question,

That the amendment be agreed to.

Ayes 5

Noes 116

Amendment not agreed to.

TischThe CHAIRPERSON (Lindsay Tisch) Link to this

We have an amendment in the name of the Hon David Parker to omit and substitute clause 94. This is out of order as being inconsistent with a previous decision. Further amendments in the name of Hilary Calvert to omit clauses 94 and 95 are out of order as being inconsistent with a previous decision.

The question was put that the following amendment in the name of Hilary Calvert to clause 96 be agreed to:

to omit from subclause (5) “this section limits section 10 of the Treaty of Waitangi (Fisheries Claims) Settlement Act 1993” and substitute “this Act shall override this section”.

A party vote was called for on the question,

That the amendment be agreed to.

Ayes 5

Noes 116

Amendment not agreed to.

The question was put that the following amendments in the name of Hilary Calvert to clause 97 be agreed to:

to omit the heading;

to omit from subclause (1) “If an application for a recognition order raises a question of tikanga, the court may—”;

to omit subclause (1)(a); and

to omit from subclause (1)(b) “tikanga” and substitute “tikanga and Maori customs”.

A party vote was called for on the question,

That the amendments be agreed to.

Ayes 5

Noes 116

Amendments not agreed to.

TischThe CHAIRPERSON (Lindsay Tisch) Link to this

The amendment in the name of Hilary Calvert to clause 97(2) to omit “is binding” and substitute “is not binding” is out of order as being inconsistent with the principles and objects of the bill.

The question was put that the following amendment in the name of Hilary Calvert to clause 98 be agreed to:

to omit from subclause (2) “6” and substitute “10”.

A party vote was called for on the question,

That the amendment be agreed to.

Ayes 5

Noes 116

Amendment not agreed to.

TischThe CHAIRPERSON (Lindsay Tisch) Link to this

A further Hilary Calvert amendment to clause 98(2) to omit “6” and substitute “7” is out of order as being inconsistent with a previous decision. A further Hilary Calvert amendment to omit clause 100 is out of order as being inconsistent with a previous decision.

The question was put that the following amendment in the name of Hilary Calvert to clause 101 be agreed to:

to omit from paragraph (c) “and” and substitute “and Minister of Maori Affairs and”.

A party vote was called for on the question,

That the amendment be agreed to.

Ayes 5

Noes 116

Amendment not agreed to.

The question was put that the following amendment in the name of Hilary Calvert to clause 102 be agreed to:

to omit from the heading “application” and substitute “application by applicant group”.

A party vote was called for on the question,

That the amendment be agreed to.

Ayes 5

Noes 116

Amendment not agreed to.

TischThe CHAIRPERSON (Lindsay Tisch) Link to this

We have a Hilary Calvert amendment to clause 102(1), to add “not later than 20 working days after filing the application”. This is out of order as being the same in substance as a previous amendment. A further Hilary Calvert amendment, to clause 102(2)(a), is out of order as being inconsistent with a previous decision.

The question was put that the following amendments in the name of Hilary Calvert to clause 102(2) be agreed to:

to omit from paragraph (c) “description” and substitute “description and boundaries”; and

to omit from paragraph (d) “person” and substitute “person or group”.

A party vote was called for on the question,

That the amendments be agreed to.

Ayes 5

Noes 116

Amendments not agreed to.

TischThe CHAIRPERSON (Lindsay Tisch) Link to this

A Hilary Calvert amendment to clause 102(2)(e), to omit “person” and substitute “person or group”, is out of order as being inconsistent with a previous decision. A further amendment in the name of Hilary Calvert to clause 102(2)(f), to omit “date” and substitute “proposed date”, is out of order.

The question was put that the following amendment in the name of Hilary Calvert to clause 102 be agreed to:

to omit from subclause (3) “20” and substitute “10”.

A party vote was called for on the question,

That the amendment be agreed to.

Ayes 5

Noes 116

Amendment not agreed to.

TischThe CHAIRPERSON (Lindsay Tisch) Link to this

A further amendment in the name of Hilary Calvert to clause 102(3) to omit “20” and substitute “18” is out of order as being inconsistent with a previous decision.

The question was put that the following amendment in the name of Hilary Calvert to clause 102 be agreed to:

to omit from subclause (3) “working”.

A party vote was called for on the question,

That the amendment be agreed to.

Ayes 5

Noes 116

Amendment not agreed to.

[... plus a further 248 contributions not shown here]

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