2. RAHUI KATENE (Māori Party—Te Tai Tonga) Link to this
to the Attorney-General
What requirements must the Crown meet in relation to the burden of proof in the Marine and Coastal Area (Takutai Moana) Bill, and how different is this to former legislation in respect of how the full burden of proof falls on hapū and iwi?
Hon CHRISTOPHER FINLAYSON (Attorney-General) Link to this
Under clause 105 of the bill, if the Crown does not accept that customary title exists in an area, then the Crown has to prove customary title has been extinguished. This requirement is consistent with what the Court of Appeal said in the Ngāti Apa case. Under the current legislation, applicant groups have to prove the negative—namely, that extinguishment has not occurred. The requirement is contrary to what the Court of Appeal said in Ngāti Apa and goes against the usual rules about the burden of proof.
What did the Court of Appeal say in the Ngāti Apa case, which has led to the development of a shared burden of proof; and can he name any other precedents in which indigenous peoples have called for a shared burden of proof, and the law has responded?
Hon CHRISTOPHER FINLAYSON Link to this
The Court of Appeal said: “the onus of proving extinguishment lies on the Crown and the … purpose must be clear and plain”. I cannot immediately recall any other precedents involving indigenous peoples, but I refer the member to a general affirmative defence—for example, a limitation argument under the Limitation Act 2010. Anyone wanting to argue that a claim is time barred has the burden of proving that that is the case.
Does he agree that the tests applied in the takutai moana bill reflect New Zealand’s experience better than overseas case law by incorporating tikanga, and how will this be achieved in a practical sense?
Hon CHRISTOPHER FINLAYSON Link to this
Yes, I do. I think the tests better reflect New Zealand’s experience, because they do draw on both the common law and tikanga. In a practical sense, clause 97 of the bill will allow the High Court to refer questions of tikanga to the Māori Appellate Court or to obtain the opinion of a court expert on the question.