Marine and Coastal Area (Takutai Moana) Bill - Part Four

Rahui Katene, MP for Te Tai Tonga

Thursday 17 March 2011

Thank you for the opportunity to speak on the Bill.

I want to take a call to speak to Clause 97 and Clause 105 of Part Four.

Clause 97 allows the High Court to refer a question of tikanga to the Maori Appellate Court for its opinion, or to obtain the advice of a pukenga. The concept of pukenga of course comes from the Maori Land Court and the Maori Appellate Court, where the Court seeks the assistance of those experts who have experience and knowledge of tikanga Maori.

It has really saddened me to hear the nature of the kōrero from the Act Party around tikanga.

One of the major achievements the Maori Party has secured through this Bill, has been in ensuring tikanga permeates the legislation –and in that way, we see the value accorded to Maori customary values and practices being reflected right throughout.

And I am mindful of the challenge left by a former MP and esteemed Maori leader, Ta Apirana Ngata, in his much quoted words, E Tipu e Rea. In that passage Ta Apirana encouraged Maori to grasp the tools of the Pakeha world, while at the same time cherishing 'nga taonga a o tupuna Mâori' – the treasures of our ancestors. It was, if one likes, the notion of promoting excellence in both worlds.

And 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 – walking in two worlds, Aotearoa New Zealand.

A commitment to nationhood driven from the Treaty would mean 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 what we in the Maori Party understand of tikanga as consistent with kaupapa Maori – kaupapa such as kotahitanga, rangatiratanga, whanaungatanga.

Tikanga are our practices - that which is ‘tika’ – true and accurate. Tikanga are derived from kaupapa Maori, the foundation of Maori culture, and the basis of Maori worldviews.

Ironically, the reference to Alice was made during the kōrero we had on the preamble. A preamble which monumentally introduces for the first time in any public environmental or resource management related legislation; the kaupapa of manaakitanga – and the tikanga that are derived from it.

In Ngai Tahu, for instance, the concept of manaakitanga, as that tikanga which tangata whenua practise towards manuhiri, 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 which tangata whenua display, the more mana they demonstrably possess.

Ngai Tahu has great mana – as we have seen with their response to recent events that have struck the people of their rohe – and so, as many people of great mana have done throughout New Zealand’s history, they gave without hesitation.

Manaakitanga – as mana in action – only works when the system of reciprocity on which it is based, is understood.

So 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 quantities. We know exactly what it is that we seek, and that is to restore the balance of mana and to uphold tikanga.

While this bill does not consolidate 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 our takutai moana, such as in their input to the planning document.

While a misguided few look to role models such as Alice, 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 with the boldness of his youth, to seek change in his world.

The other key clause I want to refer to in Part Four is that related to Clause 105.

This is an extremely significant clause which 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 heard in the public arena from people – unfortunately including some MPs – claiming they are opposing the Bill without having to read it. I don’t understand the logic that someone can be opposed to something if they don’t actually know what it is they are opposing.

But back to Part Four - the Burden of Proof clause, clause 105, is a major initiative of this Bill – and indeed, was something instigated by discussions with the Member for the North.

The 2004 Act required Maori to prove extinguishment of customary title had not occurred. Proving something had not happened over a 170 year period was a significant burden on Maori.

The Takutai Moana Bill now 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.

Sub-clause two of 105 provides that, for customary marine title, an applicant group must prove that the specified area is held in accordance with tikanga; and has been used and occupied by the applicant group, either from 1840 to the present day; or from the time of a customary transfer to the present day.

Sub-clause 105(3) 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 re-drafted is explicit that applicant groups must only prove the positive elements of the tests; 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 or 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 tests for protected customary rights and customary marine title. And I want to really highlight this initiative as it is something which 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 personal body that seeks to have it extinguished—in this case, the Crown. So the Crown has the burden of extinguishment, and the advice that I have received from iwi is that it is a just and proper thing to do. Tena koutou katoa.

ENDS

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