Cullen Michael: Foreshore and Seabed Bill — In Committee Speaker Recalled In Committee 
Cullen Michael: Foreshore and Seabed Bill — In Committee Speaker Recalled In Committee 
[Volume:621;Page:17065] 
Hon Dr MICHAEL CULLEN (Deputy Prime Minister) 
: 
 I had not realised that during one of my very frequent absences from the Chamber today the deputy leader of the National Party had unburdened himself of a legal opinion—that customary rights should be dealt with through the Treaty of Waitangi claims settlement process. I have to say that if that assertion were made and it was certainly made on his behalf by his legal counsel Dr Wayne Mapp then it is perhaps the most peculiar assertion made so far in this extraordinarily peculiar debate.  
 The treaty claims settlement process is as its name suggests—even to members of the National Party—about the settlement of treaty claims.  
Hon Member 
: No! 
Hon Dr MICHAEL CULLEN 
: Yes! Treaty claims arise from treaty grievances. The treaty grievance that would arise in the instance of customary rights is that they had been abolished at some point in the past by improper action on the part of the Crown. If they have been abolished they are no longer customary rights because an essential test of a customary right is that it endures to the present day reasonably uninterrupted.  
It is certainly a potential treaty claim if the Crown has acted in an improper way that has interrupted people’s ability to claim customary rights—the member is absolutely right on that—but the process of the recognition of existing customary rights cannot possibly be via the treaty claims process. If that is what the National Party’s great cogitations about the legal basis of this has led to then Dr Mapp should definitely stick to tax law and not get into those kinds of areas at all.  
A customary right is a common law right that existed in 1840 at the time of the assumption of sovereignty and has continued reasonably uninterrupted down to the present day. That is the great issue of moment for the National Party and we finally come down to what its core problem is: it believes that customary rights orders in relation to Maori should be applied for through the High Court rather than through the Maori Land Court. That is what the die-in-the-ditch fighting of this bill has all been about to this point.  
The issue there is that in the previous part the National Party opposed the fact that the High Court can go to the Maori Appellate Court for a ruling on tikanga matters. If the High Court cannot go to the Maori Appellate Court for a ruling on tikanga matters it would be extraordinarily difficult for the High Court to have the expertise to deal with applications for Maori customary rights orders.  
I suggest that the National Party goes back to the drawing board again and thinks about some kind of reasoned-principle objection to this bill. At least the ACT party has one: it is purely to allow current processes to run around the relationship to property rights. That at least is a reasoned process. I think it is wrong but the National Party has yet in this entire debate over many many hours to put up any sensible argument at all—not at any single point.