Finlayson Christopher: Marine and Coastal Area (Takutai Moana) Bill — In Committee 
Finlayson Christopher: Marine and Coastal Area (Takutai Moana) Bill — In Committee 
[Volume:670;Page:17393] 
Hon CHRISTOPHER FINLAYSON (Attorney-General) 
: 
 Part 4 of the Marine and Coastal Area (Takutai Moana) Bill sets out procedures relating to the recognition of customary interests either by agreement or order of the court and it deals with some administrative details. The part I particularly want to focus attention on is Subpart 1 which provides the procedure for the recognition of customary interests. It can be done by either recognition by agreement or recognition by the court. 
The key changes proposed in the Supplementary Order Paper focus on the procedure for recognition by agreement. A number of people had made submissions both to the Maori Affairs Committee and to me personally about a desire for greater transparency. To make more transparent any agreement negotiated with the Crown for recognising customary title the Supplementary Order Paper changes recognition agreements for titles to be brought into effect by an Act of Parliament instead of an Order in Council. That will allow scrutiny of agreements by members of Parliament at select committees and it will allow the public some say in the matter. 
The next point that needs to be addressed is an application for a recognition order. The matter of principle that people may wish to discuss concerns which court one should apply to. I have tried in the bill to provide the best of both worlds. An application will be made to the High Court but the court may refer any question of tikanga to the Maori Appellate Court. 
Members may wonder why I chose the High Court and not the Maori Land Court. I suppose I was very influenced by the history of the Ngati Apa litigation that began in the Maori Land Court. It went to the Maori Appellate Court thence to the High Court and then the Court of Appeal and by leave it could have gone to the Privy Council. 
I am also very conscious that proceedings in both the Maori Land Court and the Maori Appellate Court are capable of being the subject of applications for judicial review. So if anyone really wanted to delay a matter or oppose a matter down to the wire the easy thing to do if something had begun in the Maori Land Court was to seek judicial review of anything. 
I was very concerned about cost and delay which is why I have put in the bill that the proceeding commence in the High Court but as I say it is best of both worlds because there can be reference to the Maori Appellate Court for any question of tikanga. The opinion of the Maori Appellate Court will be binding on the court. The court may also refer any question of tikanga to an expert. 
The next point I wish to address is contained in clause 101 “Service of application”. This provision should allay any fears that it will simply be a question of an application served on the Crown. Local authorities have to be served the Solicitor-General on behalf of the Attorney-General and importantly any other person whom the court considers is likely to be directly affected by the application and there needs to be public notice of the application. 
Clause 105 is an important clause and it is the subject of an amendment in the Supplementary Order Paper. This is the burden of proof clause and it has been clarified to ensure that applicant groups are expected only to prove the positive elements in the tests. Some people have complained that that shows favouritism to applicants. It does nothing of the sort. The Court of Appeal in the Ngati Apa case made it very clear based on Canadian and Australian authority that the onus of proving extinguishment lies on the Crown and that the necessary purpose must be clear and plain. Those authorities are well established. 
Subpart 3 deals with regulation-making powers. The only provisions I refer honourable members to for the debate are in clause 118 which provides for the Governor-General by Order in Council to make regulations for administrative purposes and in clause 119 which states that regulations may be made for the management of the common marine and coastal area particularly subclause (1)(a) which provides for regulations for the safety and protection of members of the public who exercise rights of access in and over the common marine and coastal area. 
Clause 119(1)(e) prescribes offences which is something that is not contained in the 2004 Act. An amendment is also proffered in the Supplementary Order Paper to provide that any person breaching a regulation or by-law may be directed to stop. Most of the provisions in this part of the legislation are of an administrative nature but there are some important questions dealing with both recognition by agreement and order of the court that need to be addressed.