Wilson Margaret: Foreshore and Seabed Bill — In Committee Speaker Recalled In Committee 
Wilson Margaret: Foreshore and Seabed Bill — In Committee Speaker Recalled In Committee 
[Volume:621;Page:17022] 
Hon MARGARET WILSON (Attorney-General) 
: 
 I rise to address the point raised by the previous speaker from the Greens relating to proposed new clause 28 and territorial customary rights. Her presentation of the issue expressed a common fundamental misunderstanding about what issue this bill addresses. The bill in fact addresses the issue that was before the Court of Appeal: the nature of common law customary rights. The basis on which the Ngati Apa people brought their application to the Court of Appeal was common law customary rights. The Court of Appeal addressed those common law customary rights not treaty rights.  
The difficulty has been that most people do not understand the nature of common law customary rights. That is why the Court of Appeal said that it felt that in the circumstances of New Zealand—even though it called into question whether the foreshore and seabed had been vested in the Crown and therefore quite legitimately there was a right to pursue whether the common law customary title still prevailed—there would be few cases where under the common law test there would be proof that customary title still prevailed. In most instances under that test it had been extinguished by events since 1840. The way in which those issues of extinguishment have been dealt with in this country—if they were not done in the correct way of redress—has been through the Treaty of Waitangi. That is why the 1840 date becomes of such significance.  
I perfectly accept that sovereigntists on all sides of the argument wish that we did not have the Treaty of Waitangi because their argument would then prevail. But the fact and reality with which we deal is that we do have the Treaty of Waitangi and this issue cannot be considered without putting it into the context of the treaty. 
Dr Lynda Scott 
: Why not? 
Hon MARGARET WILSON 
: Because the common law customary rights have been addressed by the Treaty of Waitangi. Where they have not been addressed by the Treaty of Waitangi then the common law test prevails. It is a misunderstanding as to what the common law test for customary title is that has been an obscuring factor throughout this entire debate.  
 For those who have bothered to read new clause 28—and I say as an aside to those who think there is no explanatory note that there is and members should read it if they cannot be bothered to read the whole provision—the important point to note is that the definition of the criteria to establish a territorial customary right is founded in the common law jurisprudence. The clause reflects an analysis of both the Canadian and Australian jurisprudence and also takes into account the local context since the 1840 date. If we look through the provisions relating to exclusive use and occupation we see that they are the essence of the common law test. The fact that we have contiguity is an essence of a common law test. It has been if one likes widened and broadened through the inclusion of words like “significant” which means that the contiguous area does not have to be made up of exactly the same amount of land. We have tried to take account of the local circumstances so that we get a law that can work.  
The people who bring claims under this provision will know precisely what the criteria are and what factors they have to address to be able to go to court to get an order that a territorial customary right exists. Once that order is made—if it is—on the facts set out in the claim then the provisions provide for redress. I know that members will discuss that redress in the debate on another part.