Street Maryan: Marine and Coastal Area (Takutai Moana) Bill — In Committee Speaker Recalled In Committee 
Street Maryan: Marine and Coastal Area (Takutai Moana) Bill — In Committee Speaker Recalled In Committee 
[Volume:670;Page:17320] 
Hon MARYAN STREET (Labour) 
: 
 I rise to speak to Part 3 of the Marine and Coastal Area (Takutai Moana) Bill and I recognise that I do not have the legal training that the Minister Chris Finlayson who is sponsoring the bill has. So I confess readily as a humble arts graduate that I need to go back to principles that simply make sense to me. I find Part 3 of this legislation quite challenging and I think that is because it is genuinely difficult. I do not think I am as illiterate as other members may class me as being but it seems to me that if we go back to what this legislation is about we get to the heart of it in Part 3. 
In Subpart 1 we have the participation and conservation processes in the common marine and coastal area in Subpart 2 we have protected customary rights and in Subpart 3 we have the customary marine title. I will go back to basics and say right from the start of the debate on this part that Labour’s basic position has been firstly to guarantee public access; secondly to recognise Maori customary rights; and thirdly to allow Maori to take all aspects of their claims to the court. Those three things are simple principles that I can understand and I can describe to other people. That is always the test for me—whether I can describe what the legislation means to other people. I have worked quite hard at this. 
I will start at perhaps the most contentious bit and that is the customary marine title in Subpart 3. Some of the earlier subparts of this section of the legislation are reasonably OK. For example there is now widespread agreement that rights of free public access to the foreshore and seabed and so on are not at legal risk and the prevention of the alienation of customary interest is widely supported. Therefore I will not traverse those things so much. But when we get to this bit in Subpart 3 then suddenly I begin to get suspicious because what we have here is the meaning of customary marine title and an attempt at codification of it to which the Minister referred in his opening remarks. 
My experience of codification in past lives has been that it is an extremely complex difficult and exhausting process. The codification of a right often requires a level of detail that is needed to address every issue that one can reasonably expect to arise where a right might be applied or might be sought to be applied. Codification is a very complicated process but this effort in Subpart 3 puzzles me most. Our position is that we are happy to lay out general principles and have the court determine on application how those principles might be applied in determining whether customary marine title exists. Two things are important in clause 60(1) in Subpart 3. It states: “Customary marine title exists in a particular part of the common marine and coastal area if the applicant group—(a) holds the specified area in accordance with tikanga; and (b) has exclusively used and occupied the specified area from 1840 to the present day without substantial interruption.” That is problematic for many iwi. It is extremely difficult for iwi to prove and it is extremely difficult for— 
Hon Dr Wayne Mapp 
: No it’s not difficult at all. It’s one of the easiest things to prove. 
Hon MARYAN STREET 
: Well the ones I have talked to who are represented by the Iwi Leadership Group which is most of them said that this threshold is unfair. 
The issue is that the Maori Party was founded on the basis of what it considered to be flawed legislation passed by our Government in the white heat of the racist opposition that the National Party had been drumming up over a number of years and Don Brash owns his part— 
Hon Members 
: Point of order— 
The CHAIRPERSON (Eric Roy) 
: I think I know what the point of order is and I have just been reflecting on the way in which the member used a certain word. The test is whether the Committee itself is offended by a word like this one. With regard to the context in which the member used it I know that she did not personalise it but it does bring offence to the Committee. I ask the member to desist. 
Hon MARYAN STREET 
: Thank you Mr Chairperson; I will desist. In the white heat that the National Party generated at the time of the passage of our legislation the Maori Party said we were taking away the right to go to court. The Labour Party has said since then—and I said it yesterday in this very debate—that we got that wrong and we have apologised for that. Now this codification part of this legislation is trying to do much the same thing. I go back to simple principles. The concern that we in the Labour Party have is that this provision appears opaque—it is not transparent. I would rather provide guidelines and principles in legislation in this House and have the courts—people whom the Minister in the chair the Hon Judith Collins trained with in her previous occupation and who are now judges—look at this and see how to apply it. Let us build up some case law and practice in this area. 
The independence of the judiciary is extremely important to our democracy and for the life of me I cannot understand why the Maori Party finds this bill fit to support when it continues the denial of access to the courts that provoked the establishment of that party. So this is a real puzzle to me: that the Maori Party on whose votes this legislation depends are violently opposed to a restriction of access to the courts in 2004 yet come 2011 when this Parliament is having a second go at addressing this issue in the interests of all New Zealanders it thinks it is now OK to have something codified in legislation and not able to be taken to the courts for testing.