Turei Metiria: Foreshore and Seabed Bill — Second Reading Instruction to Committee In Committee 
Turei Metiria: Foreshore and Seabed Bill — Second Reading Instruction to Committee In Committee 
[Volume:621;Page:17002] 
METIRIA TUREI (Green) 
: 
 I was quite distressed to hear Nanaia Mahuta’s speech in which she lauded clause 3 “Purposes” as providing Maori with access to the courts to get territorial customary rights orders. I wonder whether she is aware—we will talk about this later in the debate on Part 2—that New Zealand First has negotiated a clause that means that contiguous land ownership is a condition of being able to get a territorial customary rights order. That is in effect the reinstatement of the 90 Mile Beach decision which legal academics have known and continually said since that decision was made was wrongly decided. The Ngati Apa decision overturned it because it was wrongly decided. Clause 3 will mean that those South Island iwi who took the Ngati Apa case to court will not qualify for a territorial customary rights order. That is the effect of clause 3. It is not about providing access to the court; it is about denying specifically and directly those iwi who might well be able to establish some form of exclusive use and possession the right to attend court. 
Mr Tamihere talked earlier about how the challenge for the Maori Labour MPs was to find ways to incorporate Maori rights into the bill. Their challenge was not to find ways to integrate Maori into this bill. Their challenge was not to find ways to assimilate Maori rights into this bill. Their challenge was to protect Maori customary rights to protect the common law rights of iwi whanau and hapu in this country and to protect tipuna title. By supporting this bill the Maori Labour MPs and Maori New Zealand First MPs have failed in that challenge. They have failed to protect Maori rights. They are allowing the continual confiscation and extinguishment of those rights and the further taking of land. 
Those MPs try to justify this bill by saying it will give Maori more rights than they would get in the courts. That is a completely wrong justification. It is not true. They try to say that this bill incorporates the common law tests from other jurisdictions such as Canada and Australia and that Maori would be subject to those tests in the courts. But in fact Maori would be subject to tests in the courts that include our own treaty jurisprudence which has been in development now for 30 40 or more years. That treaty jurisprudence acknowledges that the common law rights of Maori are in a form set out in the Treaty of Waitangi—that that document has force and is relevant to these decisions. Of course the Canadian tests do not have that issue and the Australian tests do not take it into account. But the New Zealand courts would enabling Maori to have better access to justice and enabling the formation in our own country of our own jurisprudence about what common law rights might actually be. By putting forward this bill this Government is preventing the courts from exploring those issues and preventing Maori from being able to explore the full scope and spectrum of what their common law rights might be in accordance with international jurisprudence and our own treaty jurisprudence here. 
One of the real failures of this bill and of the whole process—including the select committee process—was the fact that so many alternative options were not explored. The most obvious of those would be to allow Maori to proceed to the courts to have the full scope of their common law rights determined. Yes there would be some uncertainty for the Government but it would leave an opportunity for that exploration and development of the law to continue. There were no problems last summer when this issue had not been decided. The esoteric kinds of academic questions that go on in the courts do not have a huge impact at all on New Zealanders’ ability to enjoy the beach in the summertime. There is no urgency. There is no need to rush this decision. We could allow the courts to proceed and develop the law in accordance with New Zealand jurisprudence. 
It is urgent only for Labour and New Zealand First. They want this bill dealt with before the election because they see votes in it. They do not see the injustice of it. They do not see and understand the extinguishment and confiscation of Maori rights. They do not see that they are undertaking a return to the 19th century.