Turei Metiria: Foreshore and Seabed Bill — In Committee Speaker Recalled In Committee 
Turei Metiria: Foreshore and Seabed Bill — In Committee Speaker Recalled In Committee 
[Volume:621;Page:17058] 
METIRIA TUREI (Green) 
: 
 The Green Party has a large number of amendments on Part 3 as well—[ 
Interruption 
]—and we are looking forward to that are we not! A number of amendments refer to the provisions about how applications for customary rights orders will be decided. One of our amendments deletes clause 42 and replaces it with something that is substantially simpler easier to manage and more accessible but that also acknowledges that any customary rights have to be exercised in accordance with the law and that the law does apply to those areas. So it does not give complete free rein. 
Clause 42 as set out in Supplementary Order Paper 302 is a real concern. During the select committee hearings a lot of people were very worried about the possibility that resource consents could prevent Maori from getting a customary rights order because of the way that the tests for getting them were structured. It still is a serious concern. Will a resource consent for a very short period of time—perhaps 5 years—or even for 30 years disrupt interfere and effectively extinguish a customary right that has been in practice and in existence effectively for the last 500 or 800 years? The answer remains that yes a resource consent will do that even though officials assured us that resource consents would be excluded and that they would make sure that resource consents could not affect a customary rights order. 
The way that the clause has been structured to allow that to happen is by providing a myriad of little tests that Maori will have to meet. First they have to have been exercising the customary right since 1840; like Dail Jones said that makes perfect sense given that we are talking about customary rights here. Also the customary activity has to have been exercised on a particular piece of foreshore and seabed; of course that makes sense too. 
One criterion is that the customary right is not to have been prohibited by any enactment or rule of law; that is in clause 42(1). Resource consents are specifically excluded from affecting that. That means that a resource consent is not an enactment or rule of law that would prohibit the exercise of a customary right. On the face of it it looks like customary rights orders are protected from resource consents but in fact the test that the customary right has to have been exercised substantially uninterrupted since 1840 will be subject to resource consents and that means that resource consents can substantially interrupt the practice of that customary right. It does not matter whether the whanau the hapu or the iwi have been trying to exercise their right during the period that a resource consent has been in place and it does not matter that they had no control at all as to whether the resource consent would be approved by the local council—they could have had no culpability at all in that resource consent having gone ahead no responsibility for it and no capacity to stop it—that resource consent whether it be for 5 10 or 20 years can substantially interrupt their ability to carry out their customary right that they have been carrying out for 200 or 500 years and can prevent them from ever being able to get a customary rights order. 
It is an anomaly in the process. I do not know whether the Government intended it to be the case. The officials at the select committee clearly said that they did not want resource consents to interfere with customary rights orders but the way that the bill is structured means that they can interfere if they have physically prevented the carrying out in some form or another of that customary right in the form that it was carried out in 1840. If there was the capacity for that customary right to be broadened in some way or the rules around substantially the same exercise of that right or if there was allowance for periods of time when there was a lacuna in the exercise of that right because of external events occurring to that land or to that hapu then maybe this rule would not be such a problem. But with the way that it is structured now if a resource consent has stopped a hapu from getting access—even if it is only access to that land; even if it is not a resource consent over the foreshore and seabed itself but over access ways to it—they will not be able to get their customary rights order. 
Resource consents are prolific in this country. They are a critical environmental management tool that is used in all sorts of ways in all sorts of places. Hundreds and hundreds of whanau and hapu will not be able to get their customary rights because a resource consent has interrupted them. It is unjust.