12. Hon JOHN BOSCAWEN (Deputy Leader—ACT) Link to this
to the Attorney-General
Why didn’t he follow ACT’s advice to repeal the Foreshore and Seabed Act 2004 and use Parliament’s power to put iwi back to their pre-2004 legal position so Māori could have their day in court?
Hon CHRISTOPHER FINLAYSON (Attorney-General) Link to this
Two principal reasons. The first is uncertainty about tests to determine customary title. In British Columbia, for example, certain indigenous groups have been involved in litigation for years, trying to work out the tests for customary title. The Government thought it better to prescribe tests using the principles set out in the Ngāti Apa case and in common law. The second is uncertainty about what customary title is. The Court of Appeal in the Ngāti Apa case observed that it could mean anything from use rights to exclusive ownership equivalent to fee simple. The Government has provided certainty by setting out what rights may be conferred by a customary marine title order.
Hon John Boscawen Link to this
Does the Attorney-General agree with the decision of the court in the Ngāti Apa case that “Any customary property in the areas vested seem unlikely to survive”; if so, why is it that under National’s policy, which he stated publicly, up to 10 percent or 2,000 kilometres of New Zealand’s foreshore and seabed could end up in iwi hands?
Hon CHRISTOPHER FINLAYSON Link to this
Actually, I do not think that what the court said was part of the holding, or what they call the ratio. I think it was more an obiter comment; none the less, I do agree with it.
Hon David ParkerWas the real reason he did not follow ACT’s advice because he was annoyed and embarrassed by the loss of reputation his Government has suffered as a result of Minister Hide’s lack of judgment and ACT’s double standards?
Hon CHRISTOPHER FINLAYSON Link to this
No. I was particularly interested in seeing a just result for iwi—a just and durable solution—and the answers I gave to the primary question accurately and, if I may so, admirably set out the position.
Mr SPEAKERHon John Boscawen Link to this
I raise a point of order, Mr Speaker. I understand that we have an agreement with National to have one of its supplementary questions.
Members are lucky that everyone was out of order there. The honourable member will be aware that if parties are to trade questions, which they are at liberty to do, they must advise the Speaker. We received no advice that National had allocated any questions to ACT today. ACT had a supplementary question on question No. 3 and a supplementary question on question No. 12. That is the full ACT allocation. If the member wishes he could seek leave to—
Hon John Boscawen Link to this
I will seek leave to ask a further supplementary question, but my understanding was that agreement had been reached, and, obviously, I understood that that advice had been made clear to the Speaker.
Hon Darren Hughes Link to this
I raise a point of order, Mr Speaker. I take your advice that ACT’s questions have expired, and we have no objection to ACT having the leave.
Leave is sought for the ACT Party to have a further supplementary question. Is there any objection? There is none.
Hon John Boscawen Link to this
Why does he think it better that politicians like him determine the extent of iwi ownership of the foreshore and seabed, guided by politics, than the courts, guided by common law and the facts of the case?
Hon CHRISTOPHER FINLAYSON Link to this
It is not a question of preferring politicians like me to judges. A fact of litigation is that often it makes more sense for parties to reach agreement on something out of court, rather than spend time and money engaged in the court system for years. That sort of thing happens all the time. Just a couple of months ago, after a High Court decision, when it was on its way to the Court of Appeal, the Government entered into an agreement with certain trading banks over a tax issue. These sorts of things are not uncommon, and to characterise it as the member characterises it is silly.