Davis Kelvin: Marine and Coastal Area (Takutai Moana) Bill — In Committee Speaker Recalled In Committee 
Davis Kelvin: Marine and Coastal Area (Takutai Moana) Bill — In Committee Speaker Recalled In Committee 
[Volume:670;Page:17324] 
KELVIN DAVIS (Labour) 
: 
 I will start off by disagreeing with my colleague Nanaia Mahuta when she said the Maori Party had trouble in justifying the Marine and Coastal Area (Takutai Moana) Bill. That party does not have trouble in justifying this bill; it is absolutely proud of it. In the hikoi of 2004 people marched against the Foreshore and Seabed Bill. But they are not being led on a hikoi with this bill; they are being led down the garden path because the legislation that they have ended up with is little different from the 2004 Act. 
I take issue with what the Hon John Boscawen said—that in 1840 the territorial limit was 3 miles out to sea. Tau Henare for all of his bluster raised a good point in his interjection when he asked who had set that 3-mile limit. It certainly was not Maori. We are talking here about Maori customary rights and so on but the Hon John Boscawen is referring to a totally European concept and in 1840 Maori were in charge of the country. 
Moving on to the bill and to the definitions there of hapu I tell the Committee that the bill originally stated in clause 49(2) that “hapu means a hapu listed in the constitutional documents of an iwi or as advised to the Director-General by the iwi”. In the select committee process in the Maori Affairs Committee a number of hapu were concerned about that because their hapu were not necessarily listed in the constitutional documents of the iwi. The Mahurehure tribe in Waima in the Hokianga were a tribe who were concerned that they might be missed out. Instead the clause has now been changed on Supplementary Order Paper 207 in the name of the Hon Christopher Finlayson—and I believe rightly so. Clause 49(1) on that Supplementary Order Paper states: “In this section and sections 50 to 52 affected iwi hapu or whanau means iwi hapu or whanau that exercise kaitiakitanga in a part of the common marine and coastal area where a conservation process is being considered.” Mahurehure are an inland iwi but the Waima River goes right through to the Hokianga Harbour and I tell the Committee that they will be glad now that they will be included most definitely in this provision. 
Clause 53 describes the meaning of “protected customary rights” and we have heard already that under subclause (1) “A protected customary right is a right that—(a) has been exercised since 1840; and (b) continues to be exercised in a particular part of the common marine and coastal area in accordance with tikanga by the applicant group whether it continues to be exercised in exactly the same or a similar way or evolves over time;”. The bill does not actually give any examples of what a customary right may be other than the collection of hangi stones I believe and the launching of waka. From what I can read there is no real description of what such a right might be and I think that just tells us as Maori that we have the right to go and do what we have always done—for example gather pipis go diving for kinas pauas scallops or whatever else. To me this whole part about protected customary rights really just says Maori have the right to go and do what we have always done on the foreshore and seabed anyway. To me it is almost extraneous to the whole issue. 
Then we move on to clause 58 “Controls on exercise of protected customary rights”. Basically it says at the end of subclause (1) that “the Minister may impose controls including any terms conditions or restrictions that the Minister thinks fit on the exercise of the [customary] rights.” But from the way that I read that that means that tino rangatiratanga again ends up in the hands of the Minister. I wonder whether that is what the Maori Party set out to achieve with its support of this bill: that the Minister at the end of the day has the final say about the exercising of customary rights by Maori. I am pretty sure that when the members who are now Maori Party MPs led the hikoi back in 2004 that is not what they were marching for—not just to have the Minister at the end of the day have the final say on the exercise of those customary rights. 
There were submitters to the select committee who asked when it came down to customary marine title and the exclusivity side of it what will happen when they through their generosity as a hapu or an iwi have allowed people to go over their land to use the beach. Angeline Greensill who was a candidate for the Maori Party in Tainui said there was an area of land in Raglan that her tribe had opened up out of generosity. It had started out as a bit of a track and then I think the local council came along and made the road a bit tidier. Members of the community were able through the tribe’s generosity to cross over their tribal land to go and use the beach. But now this exclusivity clause means that because of their generosity that foreshore and seabed land was not exclusively used by Maori so they will be disadvantaged through their own generosity. 
In a similar vein in Blenheim the select committee heard a hapu and iwi there ask about what happens when the Crown has bulldozed a road across their land and through to an area that would otherwise be totally isolated. Through an act basically of confiscation by the Crown their foreshore and seabed has been opened up and all and sundry can go there and make use of it. So is it fair to them that through an act of the Crown—a confiscation for want of a better word—the seabed and foreshore has not been exclusively used by the hapu and tribe? They have been disadvantaged in that aspect. 
There is a whole concept about wahi tapu. There are wahi tapu areas and wahi tapu. I spoke last night about the  
Mataatua 
 waka which is our ancestral waka in Takou Bay. That site I consider is a wahi tapu but it is not necessarily in an area with customary marine title. 
Paul Quinn 
: Just give our waka back—is that what they say? 
KELVIN DAVIS 
: Yes—Tuhoe say they want their waka back and we say that if their karakia are strong enough to refloat the  
Mataatua 
 waka then they should come and get it. But the point of the matter is that the  
Mataatua 
 waka may not necessarily be resting in an area with customary marine title so does that mean that that waka could still be designated as a wahi tapu when it will not necessarily be in a customary marine title area? That is just a question I have about that. 
I turn now to clause 62 “Customary transfers”. Subclause (3) states that “customary transfer means a transfer of a customary interest in a specified part of the common marine and coastal area after 1840 if—(a) the transfer was—(i) between or among members of the applicant group;”. I am not sure of the purpose of that. I am not sure why an applicant group would then transfer their own customary title area amongst themselves. Let us say that was possible and let us say that Ngapuhi which spans from the east coast of Northland through to the west coast was an applicant group. Would that mean that a customary area on the east coast could actually be transferred to our whanaunga on the west coast? And how would that actually happen? The other question is whether those transfers can be made at a cost. Could a customary interest or customary rights actually be transferred at a cost? If so it would be like selling off the customary rights albeit to another group within one’s own applicant group.