Brownlee Gerry: Questions for Oral Answer — Questions to Ministers 
Brownlee Gerry: Questions for Oral Answer — Questions to Ministers 
[Volume:616;Page:12527] 
9.  
GERRY BROWNLEE (Deputy Leader—National) 
 to the  
Deputy Prime Minister 
: What is the “redress” the Government’s proposed seabed and foreshore legislation creates where the new High Court jurisdiction leads to a declaration by the court of a “territorial customary right”? 
Hon Dr MICHAEL CULLEN (Deputy Prime Minister) 
: 
 There is no provision in the legislation for the High Court to issue a declaration of a territorial customary right. 
Gerry Brownlee 
: I raise a point of order Mr Speaker. That was a very clever answer from the Deputy Prime Minister. We are required to go to the Clerk’s Office in the morning with the questions of the day and we are required to take verification with us. Interestingly this morning we took down the package of information released by the Government yesterday and this question is related directly to the information that the Government wished to put before the public yesterday. We know that redress means compensation; we would just like the Government to address that. I also refer you Mr Speaker to the bill that has since been tabled and point out that from clause 29 running through a number of clauses from that point there is jurisdiction for the High Court to hear matters that relate to a bundle of rights as stated in the House yesterday by the Attorney-General. Further it is pretty clear that the High Court can then determine that the applicants have lost something and that there should then be a decision made by the Government about redress—or as we would call it compensation. For the Deputy Prime Minister to avoid— 
Mr SPEAKER 
: Would the member please come to the point of order directly? 
Gerry Brownlee 
: —that question with a clever answer shows just how much trouble this Government is in with this legislation. 
Hon Dr MICHAEL CULLEN 
: The Minister is under an obligation to address the question. The question asked about a situation where the High Court declares the existence of a territorial customary right. The bill not only provides that the High Court does not do that; it actually specifically prevents the High Court from issuing a declaration of customary rights. The member must learn to phrase questions correctly. 
Gerry Brownlee 
: No I am not taking that for an answer. 
Mr SPEAKER 
: Order! 
Gerry Brownlee 
: I will come back to it. 
Mr SPEAKER 
: The member may but he will be leaving the Chamber. He does not argue with me when I am on my feet. He should read the Standing Orders about points of order. I heard the member at great length and I heard the Deputy Prime Minister. I cannot tell the Minister how to answer the question. I have to say whether he addressed it. He did and that is the end of the matter. 
Gerry Brownlee 
: Can the Deputy Prime Minister confirm that the new jurisdiction given to the High Court in matters relating to a claimant’s belief that had this legislation not been in place he or she would have had a significant benefit as a result of full and unencumbered ownership of an area will result in the Government paying compensation to claimants; if not what does “redress” mean? 
Hon Dr MICHAEL CULLEN 
: The member makes another error in the question. The application is around territorial customary rights—or what is sometimes known as aboriginal title in the legal system. That is not full and unencumbered ownership. I invite him to read the Mabo case and the surrounding legal comment on that particular case. What the High Court can do is consider a claim that but for this legislation there would have been the ability to award a territorial customary right and therefore draw to the Government’s attention that that is now no longer possible. Then the Government has a duty to enter discussions around redress. It may be the member’s first inclination to pay money in those circumstances but the Government’s first inclination is to seek other means of redress. 
David Parker 
: How does the Government’s obligation to enter into discussions in that situation compare with the treaty claims process? 
Hon Dr MICHAEL CULLEN 
: Under the treaty claims process an application is made to the Waitangi Tribunal to consider a treaty claim. The tribunal makes findings which it refers to the Government. There is no statutory requirement for the Government then to enter into discussions around those treaty claims though all Governments both National and Labour have done that in practice. In this case we are making it clear that there is a requirement a duty to enter into discussions so that that is absolutely clear on the face of the legislation. 
Gerry Brownlee 
: I raise a point of order Mr Speaker. Although I appreciate the efforts of the Deputy Prime Minister to educate me in matters of grammar I would ask you whether it is fair for a Minister to misrepresent a bill in the gross way that that Minister has done. I made an assertion that a court could find that a territorial customary right exists. I quote the bill’s heading before clause 28: “Findings of High Court with respect to territorial customary rights in public foreshore and seabed” and the heading of clause 29: “High Court may find that a group held territorial customary rights”. 
Mr SPEAKER 
: Please be seated. 
Gerry Brownlee 
: I want to make my point of order. 
Mr SPEAKER 
: Order! 
Gerry Brownlee 
: I am being shut down. 
Mr SPEAKER 
: Please be seated. I cannot judge the quality of the answer. My job is to ensure that a question that is asked is in order and that an answer is given that is in order. I am not going to get into discussion over what a particular clause in a bill states. That is not the job of the Speaker. It has never been the job of any Speaker at any time in our Parliament. The member has a number of supplementary questions. He can advance those issues in them. 
Gerry Brownlee 
: In what other ways does the Deputy Prime Minister envisage that redress may be satisfied? 
Hon Dr MICHAEL CULLEN 
: My understanding is that the essence of territorial customary rights is that they cannot be granted but could be at present under the law and could have been before the Ngati Apa decision. So if the member’s policy is to return to pre - Ngati Apa that would actually still enable the High Court to grant an aboriginal title or territorial customary rights. The member clearly does not seem to understand that particular fact. The essence of those territorial customary rights—[ 
Interruption 
] If the member waits he will get an answer—is around access control and management of the area. The issue of access we are assured by Maori is not one that is on the table; therefore no redress should be appropriate. 
On the issues around redress we have the ability to control and manage. The Crown will enter into good-faith discussions as to how proposals for partnership can proceed in the future in those cases—which will be relatively rare—where a territorial customary right might have been recognised. 
Gerry Brownlee 
: Does the Minister therefore envisage that where redress is offered by way of control and management—as he has just told the House—that could ultimately lead to the veto of other activities in that area; or is this redress to be as weak as public ownership in the bill itself? 
Hon Dr MICHAEL CULLEN 
: If the redress in this bill is weak then perhaps the member could explain why his colleague sitting next to him described the bill as a total victory for Maori. 
Mr SPEAKER 
: No. The Minister can expand on that please. 
Hon Dr MICHAEL CULLEN 
: I would be willing to expand on how it is a total defeat for the Leader of the Opposition if that is what I am being asked to expand on— 
Mr SPEAKER 
: No no—the actual question. 
Hon Dr MICHAEL CULLEN 
:—but I suspect that what Mr Speaker is asking me to expand on is that no there is no such veto right.