Sitting date: 14 Oct 2025
MARINE AND COASTAL AREA (TAKUTAI MOANA) (CUSTOMARY MARINE TITLE) AMENDMENT BILL
In Committee
Preamble

CHAIRPERSON (Barbara Kuriger): We first come to the Marine and Coastal Area (Takutai Moana) (Customary Marine Title) Amendment Bill. We begin with the debate on the preamble. The question is that the preamble stand part.

Hon Dr DUNCAN WEBB (Labour—Christchurch Central): I just would be interested in the Minister's comments—now, there's actually two questions here, and it might be useful for the Chair to clarify, because we have a preamble to the amendment bill, and then we have an amended preamble for the main bill. Could the Chair clarify which of those preambles we're discussing?

CHAIRPERSON (Barbara Kuriger): I will as soon as I know. It's just the bill—it's the preamble to the bill.

Hon Dr DUNCAN WEBB: To this bill?

CHAIRPERSON (Barbara Kuriger): Yes.

Hon Dr DUNCAN WEBB: Ah, ok. That's excellent to know. In that case, I would be interested in the Minister's comments on this, and in particular, I would have thought it quite important that the preamble—which is, essentially, a recitation of the factual background that gave rise to the bill.

Firstly, it's quite unusual for bills that are not themselves Treaty settlement bills to have preambles, and I'd be interested to know why he's doing that. Also, in terms of the factual accuracy, I have read, or attempted to read, some of the decisions that relate to this bill, and I would have thought that an accurate reflection of the Supreme Court case in here would actually recognise that all of the concerns that the Court of Appeal case gave rise to had in fact been addressed. I think it's recital (5), where it notes, "… the Supreme Court decided the remaining issues under the appeals before it, and applied its interpretation to those provisions:". It really is inadequate because it then just says, "Amendments … are still needed".

The fact of the matter is that this bill was halfway through the House—it was a pre-emptive strike, if you like. If the Government had, in fact, not brought this bill, I don't think it would still feel committed, because what we now have is a Government that's stuck its oar in, if you like—or its paddle, I suppose—and is still committed to it, whereas, in fact, the concerns in the Court of Appeal were entirely ameliorated by the Supreme Court case. Now what we have is a further tightening, which is entirely not necessary. To say, as I think it does, that the decision departed from the original intention of Parliament—it was probably untrue at the start, but it's certainly untrue now.

Those are my two questions: firstly, why do we have a preamble in this bill, because it's not a Treaty settlement bill; and, secondly, why does the preamble not accurately reflect the decision of the Supreme Court?

Hon PEENI HENARE (Labour): Thank you, Madam Chair, and that clarification is well-received. A number of us have sat here, and given that this is—as my colleague described—the first time I've seen a preamble used in a way such as it has been in this particular bill, my questions follow on from the Hon Dr Duncan Webb with respect to the difference that the Minister recognises in the court decision, and what he is, effectively, trying to change here. It's easy to say that it wasn't the intention, but words matter in this, and the preamble is the start of what we would consider, in the Māori world, the wairua to the rest of the bill. What that means is it sets the tone for what we will no doubt prosecute as the bill continues in the committee of the whole House stage.

We would really appreciate words from the Minister that can offer some clarity on those particular matters. The preamble, for its part here—like I say—sets the tone for the rest of it.

Now, I appreciate that in the Amendment Paper, which is the one that I'm looking at, here in Part 1, at clause 6, it tries to explain, if you will, why it's doing this and why it's making these changes. I'm wondering, and the first question to the Minister is if he can provide words on the preamble, and, secondly, if he can actually be quite clear whether or not this preamble will make changes that will continue to impact the rest of the bill that he has on the Table in the House. Then the next one is whether he can give an example of where, in previous cases, a marine and coastal area, or a customary title, has been recognised, and what makes this particular one different to others that have been recognised in the past.

That will be really helpful as we continue to go through this particular bill. I want to come back just to that point about how the preamble sets the tone of the rest of the bill, which is why we would really appreciate words from the Minister that set and clarify the matters that we have in the preamble here.

Hon PAUL GOLDSMITH (Minister for Treaty of Waitangi Negotiations): Thank you, members. The bill has a preamble to explain the background. It's not that common that Parliament brings in legislation to overturn Court of Appeal rulings, as was the case in the original bill, and also Supreme Court rulings, as is the case with this bill.

I'll be bringing in Amendment Paper 380, which has an amended preamble, and it's required because the Supreme Court and the High Court have issued relevant judgments since the original bill was introduced, and so they've been added into Part 1, clause 4 and the preamble, and different parts of the legislation, and also to give effect to Cabinet's decision that the bill won't apply to Ngā Rohe Moana o Ngā Hapū o Ngāti Porou. The Amendment Paper addresses an issue that emerged in the course of drafting around the second limb, which I will come to later.

So, in essence, just to remind people tuning into this debate, in relation to this—why are doing this? Well, our starting proposition is that all New Zealanders, of course, have an interest in what happens in the coastal and marine space around the maritime space and the coastal regions of this country—all New Zealanders have an interest in that, obviously. At the same time, the legislation that was introduced in 2011 did enable Māori claimants to seek recognition of customary marine title. When this was done, this was an arrangement between the National Party of the time and the Māori Party, and it was an agreement in response to changing the previous Labour Government's Foreshore and Seabed Act, which claimed title for the Crown, with the exception of areas where there was landholdings abutting that piece of the land.

So it was all part of an arrangement, and the 2011 Act set a very high threshold—and I quote Christopher Finlayson in regard to that "very high threshold." Why was it a high threshold? Because customary marine title includes valuable rights, and specifically, effectively, veto rights over resource consents for a range of activities—not all activities; important infrastructure is excluded, but there are a bunch of activities that could go on in the marine space where holders of customary marine title would have the ability to grant or not grant resource consents. It also included mineral rights and a number of other things. So these are valuable rights.

Now, obviously enabling one group of New Zealanders who had received customary marine title to grant resource consents is a very significant deviation from normal expectations of New Zealanders living in this country in a democratic, modern democracy to have an equal say in decisions affecting their lives and their environment and what goes on around them. That is why Parliament set a high threshold, and that high threshold was as outlined in section 58 of the Act, which had two legs, which was according to tikanga, an understanding of that, and then "exclusively used and occupied [the area] … to the present day without substantial interruption;".

What happened was, of course, that after many, many years after the bill was passed, it eventually made its way to court, and the Court of Appeal came up with a judgment that very much diluted the impact of the second leg, and that's why this bill was introduced. The Supreme Court agreed with the Government that the Court of Appeal had got that wrong, and indicated their own expression of what section 58 meant.

It is still the view of the Government that it still deviates from Parliament's intention, because we've seen a couple of decisions that have been made since the Supreme Court decision and the Supreme Court test which have seen very large proportions of coastlines in the Wairarapa and Kāpiti that have been given customary marine title.

So that is why this legislation is being carried on and why there is an amendment to recognise that we're not dealing with a Court of Appeal decision but a Supreme Court decision.

Hon Dr DUNCAN WEBB (Labour—Christchurch Central): Thank you, Madam Chair. There was just one point there that the Minister raised—I think, seeing as we're talking about the kind of genealogy of this bill, because the Minister talked about resource consents and he suggested that, and I may be putting words in his mouth, the ability of hapū and iwi to intervene and to say that resource consent shouldn't be granted because it interfered with their customary rights was not something which New Zealanders would expect in an equal society.

The Minister could clarify in terms of where this bill comes from. Of course, the Foreshore and Seabed Act didn't go down well. It wasn't Labour's finest hour. This bill sought to address that. In doing so, it recognised that customary rights of Māori are rights in respect of coastal and marine areas that have existed since at least 1840; that is to say that they are property rights. I just want the Minister to clarify how he says that a resource consent for an activity which would interfere with those coastal rights is not something which is appropriate in a society which deals with all property rights and property owners equally.

Because if a hapū and iwi have a customary right to exercise control in respect of a particular activity over a coastal area, these are rights which are familiar to jurisdictions around the world. We have fishing rights to rivers for trout in the UK that have been recognised since medieval times, and you can't dam the river with the resource consent or their equivalent there.

Why is it that the Minister sees the property rights of hapū and iwi in respect of coastal and marine areas in some way as less than other property rights that people who are applying for a resource consent ought to have, such that they should actually be extinguished by this legislation and in his own words, "The threshold for establishing those rights"—not establishing them, because they already exist, but recognising them—"should be extremely high." So could he just explain to me how it is that customary marine title rights are some kind of second-tier property rights compared with the rights of other New Zealanders?

Hon PAUL GOLDSMITH (Minister for Treaty of Waitangi Negotiations): I explained, and it has been very well traversed in this House, that the bill was seeking to balance two things: on the one hand, the ability to assert customary marine rights and for those to be acknowledged through the legislation, with the accompanying abilities to, effectively, grant or not grant resource consents in that particular area; and to balance that with the natural expectations of all New Zealanders living in a modern democracy to have an equal say in what goes on in their community.

And so it was a balancing act that was established in the bill, and the way that the Parliament of the time sought to achieve that balance was to grant the ability or enable the appeal and granting—or the "recognition", is the right word—of customary marine rights, but setting a high threshold for that to be established. That was the goal and that's how it was always explained: that you had to achieve two legs, the first being to recognise it through tikanga, and the second requiring applicants to have held a specified area and "exclusively used and occupied the area from 1840 to the present day without substantial interruption". The common-sense reading of that, for most New Zealanders when they look at that—"exclusively used and occupied the area from 1840 to the present day without substantial interruption" was the threshold that Parliament set.

Now, the member is quite within his rights to say that "That's not the right threshold", "It should be a different threshold", "There should be no threshold"—that's fine. That's not what the Parliament passed in 2011, and so there have been different interpretations of what that threshold should be, and that's what we're seeking to establish clearly with this amendment bill.

STEVE ABEL (Green): Thank you very much, Madam Chair. Speaking to that very last point, as a starting point—but I would like to work back to other points the Minister has made recently—in the preamble, the entire premise of this legislation is to restore the intention of Parliament. That intention, the Minister contends, has been abrogated from in the interpretation of the Appeal Court finding. Now, to the question of what Parliament intended in the original legislation, in 2011, what is the actual basis of independent analysis, which shows that Parliament's intent in 2011 is not fulfilled by the determinations of the Supreme Court, in its 2 December 2024 finding, and its more recent finding, this year? Because the Parliament of the day—of 2011, I'm talking about now—was very clear about what it was trying to achieve. The very thing that the Minister just described is achieving the customary rights of iwi Māori in concert with other rights, like fishing and recreational activities, public use, the rights of other users of the space, that could exist in concert with customary marine title (CMT).

To the specific point of his assertion that the intention of Parliament has been departed from, the Minister of the day, Christopher Finlayson, who the Minister also mentioned in his opening remarks, said, "These amendments"—meaning the amendments that the Minister has before us—"do not restore the original intention of Parliament. They undermine them. Let there be no doubt about that at all." So I invite the Minister to actually express the basis for his primary proposition, which is that Parliament's intention has not been met.

Also, as to the extent to which we are dealing with a concert of rights, in the specific comment of the supplementary analysis: "It's always been clear, and has never been contested, that the purpose of the 2011 Act and the findings of both the Appeal Court and the subsequent findings of the Supreme Court never questioned that public access, fishing, and other recreational activities in a customary marine title area are not effective, except for a limited exception for the protection of wāhi tapu areas within a CMT. Significant third-party rights, including in relation to existing infrastructure, are also maintained, and the resource permission right has a number of other carve-outs. For example, for emergency activities and scientific research. New public interest infrastructure is able to be deemed exempt from the resource management permission right following a process set out in Schedule 2 of the to the Takutai Moana Act, which includes engagement with the CMT holder and culminates in a final decision being made by the Minister for Land Information".

So the suggestion of the Minister that there is any question as to the purpose of the bill, being to ensure it achieves customary marine title for iwi but also maintains public access, is not evidenced anywhere. I would also like to point out the advice that the Minister received in this regard—again in the supplementary analysis paper—was that Te Arawhiti's—what was then called Te Arawhiti—initial preference was in retaining the status quo and waiting for the Supreme Court judgment; page 14 of the supplementary report. Te Arawhiti's view was that consideration of the appeals by the Supreme Court could have resolved the issue, and they advised the Minister against these amendments being made until such a time as the Supreme Court finding came in.

On page 15 of that analysis, point 44: "If the Supreme Court ruled in favour of the Crown, it could mean the additional time and resource on progressing amendments would not be required", and the Supreme Court did rule in favour of the Crown. Given that fact, further to my core question, how is it that, where the Court has clarified—in a magisterial decision of some substance and intelligence, in December 2024—very eloquently the intention of Parliament and found, in many interpretations, a middle-ground between the finding of the Appeal Court and the desire of the appellant, in a magisterial decision that clarifies the intention of Parliament 2011, the Minister still comes back to this House with these intense amendments to supposedly restore that intention?

I will make a final analogy before seeking a response from the Minister: it is as if the Supreme Court banged the nail into the wall upon which we can hang the picture of Māori customary rights as a principle—a core principle—that upholds Te Tiriti o Waitangi. They clarified what the intention was from 2011, and through this amendment, the Minister is coming along with a sledgehammer and smashing that nail into the wall, destroying the actual intention of 2011, which was clarified by the Supreme Court finding.

ARENA WILLIAMS (Labour—Manurewa): Thank you, Madam Chair. I want to pick up on some of what the Minister for Treaty of Waitangi Negotiations has been saying about the intention of Parliament. That goes to the heart of a number of amendments that are in my name, and I hope to seek the support of Parliament when we come to this voting, because it is unusual that the intention of a previous Parliament would be clarified in this way in law. It raises a number of unusual public law questions around how future parliaments might reinterpret the intent of previous parliaments.

Why that's important is that it is one thing, and it's perfectly fine and perfectly normal, for Governments of the day to have a policy intention, and it is also normal for Governments of the day to have a policy intention that is not in line with court proceedings that have happened or that are even on foot, but it is another thing for Governments of the day to look back and to say that a previous Parliament had a particular intention that has not been interpreted correctly in the law. And not only has a Minister of the Crown advanced that case in the media and in the public realm, but they are also asking this House to pass it in law—that there would be a preamble to this Act, which is an unusual use of a preamble. That preamble would say that, essentially, this House has a disagreement with the interpretation of the law by our court system, and not only are we going to change the way that they would reinterpret future cases but that there would be a retrospective element of rehearing cases which have already passed.

So I think it is for the Minister to establish clearly his case about why, in 2011, what was passed was his version of how this law should be interpreted, and not in fact what the Minister at the time, or the official documentation of the day, said it was. I'll read to him this quote which I hope to elicit a response from him on. It's from September 2010, when the Minister in charge of this legislation explained his policy intent—not his intent of how this would be interpreted in the courts, and that's relevant too. So he said of claimants, "They will have to prove: that the area for which they are seeking title is held in accordance with tikanga,"—yes, we agree that—"and that the group seeking title has had exclusive use in occupation of the area, and that the exclusive use in occupation has been held from 1840 until the present without substantial interruption."—there is no debate about that. But then he clarifies: "These tests are based on overseas common law from similar countries (Canada) but reflect New Zealand experience better than overseas case law by incorporating tikanga. Customary marine title is not an exclusionary right and includes the public rights of access, fishing, navigation and existing uses."

What's important there is if we are to pass as a Parliament a pronouncement about how this law was meant to be taking into account, then that Canadian case law is relevant. The Canadian case law that the Minister was talking about there were cases like Calder v Attorney-General of British Columbia that was decided in 1973, which sets out a framework that is used all around the world in common law jurisdictions to determine both the extinguishment of title by radical title of the Crown and customary rights and interests that exist in land after that has occurred, and also Guerin v the Queen in 1984. It's that case law—that was Canadian case law—which was ultimately being considered at the time in 2010, and then was intended to be used in New Zealand case law to further develop that. There had been a case that might have been on the Minister's mind, that was moving through the Canadian courts at the time. It was called the Haida Nation v British Columbia (Minister of Forests) case. It was about the procedural rights and interests of indigenous peoples, and was used as a framework to establish the procedural rights that occur here, particularly around how claimants might be funded, how claimants might have access to the courts, and how claimants might expect their evidence and their information to be treated as they went through.

Those are important cases because they inform what the Government of the day was thinking. It would be useful if the Minister could point to any case law around the world which he thinks was what the Minister at the time was using to inform the law that Parliament passed, that there was support for at the time, and that then our courts have interpreted and have made up part of our body of case law. Because if those weren't the cases that were intended to be used, then what were they? What other country uses the kind of approach that he is advancing here, and why were our courts expected to know that? It's fine for him to have a new policy direction, but why would we pass in legislation that the courts have made the wrong call, when, in 2011, that certainly seems to have been the intent.

Hon Ginny Andersen: Madam Chair.

CHAIRPERSON (Barbara Kuriger): Honourable Dr—Hon Ginny Andersen, sorry.

Hon GINNY ANDERSEN (Labour): Thank you!

CHAIRPERSON (Barbara Kuriger): I was expecting someone else to stand up who didn't, and I just got a bit brain faulty for a minute, sorry.

Hon GINNY ANDERSEN: Promotion. I'll be a doctor. Thank you very much, Madam Chair. I am going to go to the preamble, but, before I do that, I would just like to highlight that back in 2010, on 6 September, there was a press release from the then Minister for Treaty of Waitangi Negotiations, the Hon Christopher Finlayson, and I think it's important to understand the Minister's view of the policy intent under a National Government at that point of time. He states, in his press release, "One of the key objectives of the legislation is to give Māori the opportunity to argue their case for customary marine title before the courts or in negotiation with the Government. For that reason, it is inappropriate to second-guess what a court or negotiations process might decide." He also highlights, in that same press release, that "These tests are based"—as noted by other speakers—"on overseas common law from similar countries ([such as] Canada) but reflect New Zealand's experience better than overseas case law by incorporating tikanga. Customary marine title is not an exclusionary right and includes the … right [also] of [other accesses],", and I think that's been one of the misunderstandings.

My question to the Minister, in relation to the preamble that is currently put out in the bill that we have on the Clerk's Table before us, is: given the lack of consultation in this whole process, has he considered including, in the preamble, some of the findings from the Waitangi Tribunal inquiry? I think, if we're accurate about reflecting on the historical record and reflecting on what has occurred, in the preamble that is currently laid out in the bill, I would like the Minister to consider whether he would like to include the Tribunal's finding that the Crown has breached the principle of tino rangatiratanga by exercising kāwanatanga over Māori rights and interests in takutai moana without providing any evidence for one of its key justifications, namely that the public's rights and interests require further protection beyond what is already provided in the Act and that the Crown also failed to inform itself of Māori interests. I think that what is particularly important, and I'm sure this will be traversed again, is the lack of consultation with those people who are directly impacted by this legislative change. However, what smarts even more and rubs salt in the wound is the fact that there was consultation with commercial fishing interests, which have already got statutory protections.

Prior to finalising the proposed amendments, while failing to consult with Māori, the Tribunal notes that that is a further breach of the principle of good government. Now, as the Minister responsible, I think it's only right and fair for those people impacted and also for future New Zealanders to understand what has actually gone on right here. It's well and good that we have National Ministers turning up to celebrate 50 years of the Waitangi Tribunal, but, surely, if their research and their findings are valued enough, they should be reflected in the preamble of this bill. I think it's also important to note that they found that the Crown breached its principles of active protection, as well as good government, by proposing those amendments. As a result, applicants will be forced to have their cases reheard, burdening them further, financially and emotionally as well.

I would be interested to know if the Minister, who is a student of history himself and has a role in recording the history, will entertain the fact that we could record those findings from the Waitangi Tribunal in this preamble.

Hon PAUL GOLDSMITH (Minister for Treaty of Waitangi Negotiations): Of course, the difficulty that we'll find—and we can debate this all day bringing up different quotes from the Hon Chris Finlayson and we'll all be able to find one that suits our argument. I heard the member's quote from Mr Finlayson, and I could give a quote from Q&A on 20 June 2010, when he said "in the round, based on the sort of information I have, based on my talking around the place, I'd say about 10 percent of the coastline would be under CMT. I wouldn't want to be specific about which bay is in which bay is out, we'll have to issue these things." And further on, he says "We're looking at the upper East Coast, eastern Bay of Plenty, way up north, that sort of place."

Then, I could refer to Mr Finlayson in this House at question time answering a question from David Parker on the 16 June 2010, where Parker said "How much more of the foreshore and seabed does the Attorney-General expect will be subject to customary titles as a consequence of the change to the threshold test that currently applies to territorial customary rights—that change being to no longer require continuous ownership of contiguous land,"—which is what the old test was under Labour—"while still requiring continuous exclusive control of the foreshore and seabed concerned?" And the answer from Mr Finlayson was, "that is a very good question, and [it is] an important question. I believe, in answer to the member, that we are not talking about very much, at all."

So we can all find appropriate quotes, but the very clear intention—and if we look at the speeches from both Ministers at the time of when this was introduced, they were talking about, emphasising that the Act was intended to recognise customary marine title (CMT) in specific parts of the coastline. What we've seen in recent cases, based on the Supreme Court test, is entire coastlines being granted CMT. So that is why we believe this legislation is required: to restore the parliamentary intent, which was a high threshold, and specific parts of the coastline, not entire coastline.

HŪHANA LYNDON (Green): Thanks, Madam Chair. I've been wanting to really unpack the perspectives of Minister Finlayson because, last week, he was at the Waitangi Tribunal conference speaking to these very issues, along with Geoffrey Palmer, and the importance of the Waitangi Tribunal providing safeguards for us as te iwi Māori and the way in which legislation impacts upon Te Tiriti and tangata whenua. So it would be good to know what is the current status of the whakaaro of Minister Finlayson instead of quoting kōrero from the past.

Considering the deep impact that the decisions of this legislation will ripple out to te iwi Māori, I'm keen to understand from the Minister, in developing this amendment, did the Minister speak to Whakatōhea? Did the Minister speak to the tribes of Wairarapa? Did the Minister speak to the tribes of Aotea Harbour? Who specifically did the Minister speak to when it came to proposing that these amendments were about bringing back balance and the original intent, because as tangata whenua—

CHAIRPERSON (Barbara Kuriger): Can I just bring the member back to the preamble, because it's not that these questions are not relevant, but we just need to focus on the preamble.

HŪHANA LYNDON: Whakatōhea is in the preamble, and it shows the intention. These are directly named.

CHAIRPERSON (Barbara Kuriger): It was just getting a bit broad, so I was just trying to bring it back.

HŪHANA LYNDON: These are directly named claimant groups within the preamble who are going to be specifically impacted. When we go back to the original intent of the legislation, it's really clear that the takutai moana Act was to acknowledge Te Tiriti o Waitangi, that it was to provide a space for tangata whenua to exercise their customary interest in the common marine and coastal areas, that the mana tuku iho [inherited authority] of tangata whenua in the marine and coastal areas of hapū, iwi, and whānau as tangata whenua could be recognised, but that the takutai moana Act was to "establish a durable scheme to ensure the protection of legitimate interests of all New Zealanders in the marine and coastal area".

So in considering that original intent, why can't tangata whenua retain their property rights? Why is it that the balance always falls on the side of everyone else, but tangata whenua fails to get recognition in terms of the ōritetanga [equality] guaranteed through Te Tiriti o Waitangi?

Article 3 provides for us the equality to be recognised in Crown law, so how come tangata whenua cannot hold customary rights, and who in the directly impacted, named tangata whenua in the preamble did the Minister speak to in considering these amendments?

Hon PEENI HENARE (Labour): Thank you, Madam Chair. It is complex indeed. My question to the Minister is around Part 1, clause 4(10) and the amendments to those—

CHAIRPERSON (Barbara Kuriger): We're still on the preamble.

Hon PEENI HENARE: Yeah, which includes the preamble, or have I got that wrong?

CHAIRPERSON (Barbara Kuriger): No, we're not into Part 1, we're still—

Hon PEENI HENARE: Yeah, I'm in the Amendment Paper.

CHAIRPERSON (Barbara Kuriger): Oh, sorry, yeah, there's the Amendment Paper. Thank you for clarifying. Yes, carry on.

Hon PEENI HENARE: So, if I may, in Part 1, down into clause 4, which is the "Preamble amended", subclause (10)—

CHAIRPERSON (Barbara Kuriger): Found it. Thank you.

Hon PEENI HENARE: Yep, and it goes on and says, "Amendments to those provisions are still needed, however, to ensure that they have the effect, and maintain the balance, that Parliament intends:". Then it goes, in subclause (11), "In particular, amendments to those provisions are still needed to (a) define more strictly the requirements for exclusive use and occupation:". The word "occupation" is going to come up many, many times during this debate. It's the level by which the Minister, in my view, has lifted the requirements for customary title to be proven in the court, so the word "occupation" will come up regularly.

Under 11(b), it does say, "require inferences by a decision maker (including the Court) to be based on evidence of physical use and occupation:". My question to the Minister is: does that include all courts? Could that extend itself to other judiciary arms such as the Waitangi Tribunal, who are well-acknowledged in the House as storekeepers of a heck of a lot of evidence with respect to these matters that we're debating here in the Chamber.

With respect to its application to other pieces of legislation, my question to the Minister on this part is: in recognising customary take of seafood and the issuing of permits as such, does that come under the customary title and occupation piece that the Minister is proposing here? Those particular rights have been given for some time now, and I just want to check—with respect to the way that the Minister has worded Part 1, clause 4(10) and (11)—whether or not that would impact on those decisions with respect to customary seafood take, with respect to the way the Minister views physical use and occupation, which is in the particular clause that I'm referring to there.

The other part is clause 11(c)(i), which says, "holds the specified area in accordance with tikanga;", and I'm interested in the ongoing debate with respect to the courts and their view on tikanga, and whether or not it is the intention of this Minister to continue to go through and reference those particular cases that have been brought forward to the courts and, of course, the rulings that the courts have made with respect to tikanga and its place in law, and whether or not we'll be here to change this—not just on this bill but on many other bills.

STEVE ABEL (Green): Thank you, Madam Chair. To an earlier point the Minister made about the problem of customary marine title interfering with other users' rights—and acknowledging the well-made point of my colleague Hūhana Lyndon that it seems that, frequently, it is the rights of non-Māori that are preferenced time and again over the rights of iwi Māori: for a Minister that purports to believe in property rights, I wonder that he can't recognise the first property rights of this country, customary marine title, with a greater confidence and certainty.

But who is interfering with whose rights? Whose specific rights are there mischief being caused to by the current, most recent interpretation of the Marine and Coastal Area (Takutai Moana) Act, i.e., that of the Supreme Court? Who is the Minister talking about when you refer to "interfering with rights"? It's a very specific question, and a specific answer to whose specific rights are being interfered with would be appreciated.

Hon GINNY ANDERSEN (Labour): Thank you very much. My question to the Minister for Treaty of Waitangi Negotiations is in relation to new recital (2) of the preamble, inserted by Amendment Paper 380, which reads: "The Court of Appeal's interpretation of those provisions changed the effect that Parliament intends them to have, and materially reduced those requirements (for example, that an applicant group must prove exclusive use and occupation of a specified area from the start to the end of the applicable period without substantial interruption):".

My question to the Minister is—when he is including, in the preamble, statements that when you are, basically, presuming to view the intent of a previous Parliament, I would like to know whether there were any other factors that may have influenced the Minister's decision to legislate over the top of the findings of our courts. In particular, I would like to know whether the cost pressures of claimant funding proceeding through the court process, which, in the year prior to this legislation being brought to the House and enacted, there was a substantial blowout—according to the scrutiny week that I sat on, as part of that—in terms of the court costs that the Crown was required to pay for.

I would like to know from the Minister: are there other factors, such as he didn't want to have to pay for the funding for legal representation through the courts for claimants, because that was causing the Crown's books some concern, and he had quite a bit of pressure to bring things into line and there was no other foreseeable way to stop those costs? I put it to him as to whether one of the factors that this legislation introduced was to simply reduce the ongoing costs to his budget in relation to enabling representation within the courts for these claims to be heard out in a due process—I'd be interested to know: if that is not the case, then are there any other factors that have caused this legislation to come in the way that it did?

Hon PAUL GOLDSMITH (Minister for Treaty of Waitangi Negotiations): I'll just reply to a few questions. One member asked which applicants we've met with in the development of this amendment and legislation. I have met with a number, including Ngāti Raukawa ki te Tonga, Te Whānau-a-Apanui, Ngāti Kauwhata, and Ngāti Porou. In terms of whose rights we are talking about who would be potentially interfered with by the resource consent right, we're talking about somebody who wanted to start new aquaculture, for example, somebody wanting to put in a jetty on their property, or somebody wanting to renew a consent for a jetty that they've had for generations. They might be some examples.

TĀKUTA FERRIS (Te Pāti Māori—Te Tai Tonga):

[Authorised reo Māori text to be inserted by the Hansard Office.]

[Authorised translation to be inserted by the Hansard Office.]

I'm interested in a couple of things in the preamble. One of the core tenets of the 2004 ruling and how it proceeded was the Government of the day was asked to demonstrate any Government of New Zealand passing a law that actively extinguished the Māori right to the takutai moana that was vested to Māori in Te Tiriti o Waitangi, so they came up extremely short on that. There hadn't been an Act of Parliament passed between 1854 and 2004 that actively extinguished the Māori right to the takutai moana, so it stands that it was still there in 2004.

We're talking about the Māori customary right, and then as the Minister's talking about balance, we're talking about the public's right. I do have a question for the Minister about the extinguishment of that Māori right to the takutai moana that was vested to them in Te Tiriti o Waitangi. The question is, has he found one since then, given the new take on the takutai moana Act? Has there been a revelation that there actually was an Act of Parliament passed into legislation between 1854 and 2004 that actively extinguished that Maori right in Te Tiriti o Waitangi?

The balancing act—I'm interested in the balancing act—comes down to the constitutional framing of the argument. So the two sets of rights being argued are the Māori customary right—yep, I've just defined that, how it came about, whether it was extinguished or not; I've defined that well—and then the public's right. The question is, are those two sets of constitutional rights, as set out in Te Tiriti o Waitangi, equally and adequately recognised on the basis of the bicultural constitutional framework of Te Tiriti o Waitangi? That's pātai number two.

With regard to "held a coastal area exclusively" and "used and occupied it since 1840", i.e., the threshold, I've got a few things here. So coastal land owners, nē? Coastal land owners—we all know them. Heaps of farms around the country run all the way down to the coast—heaps of them in the Ngāti Kere rohe. My understanding, in the Pākehā sense of the law, is that they don't own the Queen's Chain—nope. I've also established that no Government had passed any legislation between 1854 and 2004 that had actively extinguished the Māori right to that same area, so the Māori right was live. The coastal farm owner doesn't own the Queen's Chain.

If the rights vested to Māori in Te Tiriti o Waitangi are still there, the land owner doesn't own the land right down to the water, and it is indeed just the Queen's Chain we're talking about, then there are a few things to be considered. Number one is the Queen's Chain is there. Number two, the Māori right is there. Those two things went largely without contest under the radar right up until 2004. The Queen's Government had not passed any legislation between 1854 and 2004 actively extinguishing that Māori right, so the Māori right was still there and the coastal land owners have not impeded the original Tiriti-based Māori right. So where and how is the constitutional right of Māori being recognised by the current actions of the Crown?

HŪHANA LYNDON (Green): I wanted to speak again to the preamble in the Amendment Paper, whereby we have recitals (6) and (7), and recital (7)(b) in particular. I want to understand from the Minister, the Hon Paul Goldsmith: these amendments are being provided to ensure that they have the effect and maintain the balance that Parliament intends, and then in recital (7)(b) it requires inferences by a decision maker, which could be the court also, to be based on physical use and occupation.

Thinking about the implications for decision makers, including the courts, to be based on evidence of physical use and occupation now and into the future, who is going to be financing the implementation of this? Who is going to be resourcing—whether it be the court who is going to resource the claimants. Who's going to resource the machinery of Government also, in the way in which claimants are going to have to provide evidence of physical use and occupation? Who is also going to provide the resource to then rebut the tangata whenua evidence?

I'm concerned in terms of the resources. We've already been told there's cuts everywhere—cut, cut, cut—and yet we see this Government bringing legislation in, just in the preamble itself, changing the nature by which we have to prove our connection and provide evidence of physical use and occupation, which is inconsistent with the test based on tikanga. It would be great to hear from the Minister how we're going to fund the system. How are we going to fund the claimants? How is the court, how is Te Arawhiti, or Te Tari Whakatau, going to fund this new machinery coming through in amendment legislation, when we were already told, as claimants, starved already of a dollar, to prove our connection to a place?

If we're revisiting, can the retrospective nature of the decisions now impacting some seven cases, including Whakatōhea, which is mentioned in the preamble—who is going to pay for it? That's going back to the taxpayer, and that's already a burden that has been heavy enough. How much is it going to cost? Have the officials done the work in terms of implementing this amendment legislation, knowing that the decision maker now has to show and prove the physical use and occupation, the evidence must be put on the table?

ARENA WILLIAMS (Labour—Manurewa): Thank you, Madam Chair. Subclause (11)(b) in the preamble in the Minister's proposed amendment is an important one, and I hope we can seek some clarity from the Minister over this new part that he proposes to insert around physical use. This is an unusual way to write the law, and it's unclear. What the Minister is asking for is for this Parliament to say that it intends that "(11) In particular, amendments to those provisions are still needed to— … (b) require inferences by a decision maker … to be based on evidence of physical use". This isn't law that says that, for a decision to be compliant with the law, it will take into account physical use. This is a way of framing it that says that "My intention is for you, the court, when you make a decision, to consider evidence and take that evidence into account, and that evidence must only be, or be also inclusive of, or touch upon, physical use."

The problem there is that there is no indication of what weight this gives; it's not set out, as these clauses would usually be drafted, for decision makers who then need to prove that their decisions have been made reasonably and in compliance with the law. This is about intentions, inferences, and the type of evidence presented to a decision maker. This makes gobbledygook of an already confusing and complex law, which currently has the benefit of moving through the New Zealand court system with the benefit of Canadian case law prior to 2011, which will now go out the door. It leaves the courts in the position—or any decision maker, in fact, when they're considering customary marine title—where, at some point, they need to hear evidence about physical use, but there's no indication of whether that should be the only evidence, whether that should be the most heavily weighted evidence, or whether it must be one of a hundred things that they heard evidence on.

This goes to the problem here, which is that, essentially, this is populist law being drafted in a way that is incredibly unusual and that is meant for judges to interpret. This is about telling a voter base that there must be evidence of physical use. You can imagine the speeches come election time. They will say, "Oh, this isn't about the taniwha out in your bay. This is about whether there was use of taunga waka"—of tying up the waka—"and isn't that fair, and isn't that reasonable?" The problem with that is that that's not what they have drafted in the law; they have just said, "It is my intention in Parliament to direct judges to hear evidence on that taunga waka, on that tying up of the waka."

How do we interpret this? In Te Whakatōhea's case, that harbour is the food basket of the people of Te Whakatōhea, who were moved from their lands. Without access to those cockles and regular use three times a day, my father, who was given to his grandparents, who were the kaitiaki of Te Kooti's place, where he was injured on the shores of the Ōhiwa harbour—they would not have been able to feed him. At that time, he was a six-month-old infant, and he could eat only the cockles from the bay, because he did not have his mother being able to breastfeed him. That would be physical use.

How is that physical use meant to apply to the regular use of the bay? It applies because these people were kaitiaki of the bay, because they looked after that customary fish take and, without it, their infant, given to his grandparents, would not have lived.

That is the established evidence; that is the relevant thing for this test. Having to prove physical use for somewhere like Ruapuke Island, where customary marine title has been granted to the whānau of Ruapuke, but where the sea between it and Rakiura or Invercargill might be used infrequently, is difficult and nonsensical, especially when you haven't set out how that is intended to work for a court. How do you take into account physical use? What is physical use in this scenario?

It makes sense only if you either set it out in the legislation and say what you mean—which is, "I mean, as a Minister, that this will be hard for you and hapū will not be able to establish this evidence."—or say that it is for judges to take into account this part of the evidence but that that evidence will not be a conclusionary part of their reasonable decision-making.

This is unfair. It is gobbledygook. It is getting around a problem the Government has with a populist commitment that doesn't make sense in law.

Hon GINNY ANDERSEN (Labour): Thank you very much, Madam Speaker. I would like to go to the proposed subclause (7) in the preamble. My colleague has just covered (7)(a) and (b). I'd like to take a look at paragraph (c). Under that, it reads: "(7) In particular, amendments to those provisions are still needed to— … (c) clarify that, in the case of an application for, or to vary or cancel, a recognition order, the applicant group must prove that the group both—(i) holds the specified area in accordance with tikanga; and (ii) had exclusive use and occupation of the specified area from the start to the end of the applicable period without substantial interruption:"

My question to the Minister is: does colonisation come into interruption? Does he consider that the change of the law and the removal of people from their land constitutes interruption as per subclause (7)(c)(ii) of the preamble. Further to that point, in terms of the process in which he arrived at the words that have ended up in this preamble, I would like to understand a little bit more about the process and the advice that he did get. When looking through the regulatory impact statement, which we now have the ability to do, we read things such as in paragraph 145, which is under the title "What option is likely to best address the problem, meet the policy objectives, and deliver the highest net benefits?" and which reads: "Given the Minister's direction that the status quo is not a feasible option, Te Arawhiti advised that out of the remaining options, Option A applied prospectively would be a direct and effective way to address the problem and achieve the policy objective. It posed the least legal, Tiriti and relationship risk by confining the amendment to a targeted alteration of key errors in the Court of Appeal's interpretation of section 58 of the Act and thereby delivers the highest net benefit."

My question to the Minister is: were the words that are in this preamble now and that have some really serious concerns, including the word "physical" and how you are determining occupation, predetermined because the Minister simply directed officials to choose which option best suited the Government's desire for an outcome and best suited the minimisation of costs to the Crown?

Hon PAUL GOLDSMITH (Minister for Treaty of Waitangi Negotiations): I just wanted to respond to the member Tākuta Ferris's—I thought—quite interesting speech, where we're really just sort of grappling with conflicting, or balancing, two separate rights. One is the customary marine rights, and the other is the expectations of all New Zealanders to have a say in what goes on in their neighbourhoods and in their coastal areas. That's why the legislation was passed with the support of the National Party and the Māori Party at the time, and was set to strike a balance there with what was described, at the time, as a high threshold. Now we're all debating about where that threshold should be, and three different courts have had three different interpretations of that threshold. That's why this Parliament is considering this Amendment Paper, which sets for Parliament to assert what it believes the threshold should be.

Dan Bidois: Mr Chair.

CHAIRPERSON (Greg O'Connor): Are you looking for a closure motion? The member—

Hon Members: Dan Bidois.

CHAIRPERSON (Greg O'Connor): Dan Bidois.

DAN BIDOIS (National—Northcote): I move, That debate on this question now close.

A party vote was called for on the question, That debate on this question now close.

Ayes 68

New Zealand National 49; ACT New Zealand 11; New Zealand First 8.

Noes 55

New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 6.

Motion agreed to.

CHAIRPERSON (Greg O'Connor): The question is that the Minister's amendments to the preamble set out on Amendment Paper 380 be agreed to.

A party vote was called for on the question, That the amendments be agreed to.

Ayes 68

New Zealand National 49; ACT New Zealand 11; New Zealand First 8.

Noes 55

New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 6.

Amendments agreed to.

CHAIRPERSON (Greg O'Connor): The Hon Dr Duncan Webb's tabled amendment to replace the preamble is out of order as being inconsistent with a previous decision of the committee.

A party vote was called for on the question, That the preamble as amended be agreed to.

Ayes 68

New Zealand National 49; ACT New Zealand 11; New Zealand First 8.

Noes 55

New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 6.

Preamble as amended agreed to.

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