Finlayson Christopher: Marine and Coastal Area (Takutai Moana) Bill — In Committee Speaker Recalled In Committee 
Finlayson Christopher: Marine and Coastal Area (Takutai Moana) Bill — In Committee Speaker Recalled In Committee 
[Volume:670;Page:17315] 
Hon CHRISTOPHER FINLAYSON (Attorney-General) 
: 
 Part 3 is a very important part of the Marine and Coastal Area (Takutai Moana) Bill. It sets up the legal rights and interests that give expression to the customary interests in the common marine and coastal area. It has three subparts. Subpart 1 provides for affected iwi and hapu to participate in certain conservation processes subpart 2 sets out the test for and rights associated with protected customary rights and subpart 3 sets out the test for and rights associated with customary marine title. I will be very interested in the debate on subpart 3 because those are very important questions. 
It seems to me that putting aside all the noise and sometimes the imbecility this legislation really boils down to a couple of key issues. The first—and I think we are all agreed—is whether the Foreshore and Seabed Act 2004 should be repealed. The answer unanimously around this Chamber seems to be yes. The next issue is whether iwi hapu and whanau should have the right to go to court. The answer overwhelmingly is yes. So the debate really is all about whether the tests for determining customary title should be codified or should be simply left to the courts. With the greatest of respect to Mr Parker who I think has made a very positive substantive contribution to this debate and I mean that genuinely he and I are apart on that issue. I firmly believe as I think Dr Cullen did that statutory codification of the common law tests does need to be retained. I really think that to wait upon protracted legal arguments while we spend years in the courts determining these issues defeats the purpose of what many are seeking—namely certainty and equity. 
There are a couple of other points that Dr Cullen made in his excellent submission on behalf of the Labour Party to the Boast Durie and O’Regan panel. One point was that provisions should be made for the recognition of customary transfer for some period after 1840 and I think of iwi like Ngati Porou ki Hauraki. He also said—and this leads on to the next point—that some thought needs to be given to just what powers the possession of customary title would involve. He said in his submission that the current provisions relating to a foreshore and seabed reserve form a useful starting point but that consideration would need to be given to the relationship to other legislation such as the Resource Management Act and he then pointed everyone in the direction of the Ngati Porou agreement. 
So that is the second big issue that the Committee needs to determine tonight. Do we leave it to the courts to determine not only the tests for customary title but also what customary title involves or do we go with the formulation in the bill about the rights conferred by customary title? I am in the camp that says we need to set out what customary marine title involves. The Court of Appeal on the Ngati Apa case was not exactly sure. It said the burden could extend from usufructuary rights to exclusive ownership equivalent to fee simple. There is a big range there so the issue really becomes whether the rights that are set out in clause 64 are appropriate or whether there should be something more or something less. In spite of all the noise I think those are the key issues and I think it would be in the interests of everyone to have a good solid and focused debate on those points.