Mahuta Nanaia: Foreshore and Seabed Bill — In Committee Speaker Recalled In Committee 
Mahuta Nanaia: Foreshore and Seabed Bill — In Committee Speaker Recalled In Committee 
[Volume:621;Page:17043] 
NANAIA MAHUTA (Labour—Tainui) 
: 
 I rise to make a contribution to the debate on clause 28 and the meaning of territorial customary rights. I think that this is a part of the bill that may cause a lot of difficulty in terms of defining customary property rights. In itself the title should be quite clear—territorial customary rights should state that it is a customary title. However that is not achievable in this bill and I do not think that the clause goes far enough. The issue arose from one of the comments that Dr Paul McHugh raised. He emphasised that tikanga would undoubtedly play a part in the development of the common law of New Zealand. It seems to me that if territorial customary rights or customary titles are to be provided for it is important that the contiguous land test is one that takes into account tikanga the 1840 principle and contiguous land ownership. But the way in which the bill has been written puts too much weight on the contiguous land issue. That may be something that may be revisited.  
It is important throughout the initial clauses of the bill that tikanga should be an upfront consideration of how to determine a territorial customary right because then all the considerations about how land transactions occurred along the coast could be better taken account of. I brought a submission to the select committee. I am from one of those groups that are not coastal tribal dwellers. In fact I have more of an association with a river so I make no secret about that and I am not an expert in this area. However I recognise that under tikanga the transference of land to kin network groups so that they are able to exercise a right along the coast is something that is well established over a long period of time. So when we are looking at the evidence that will be considered to determine whether a territorial customary right could be awarded those types of issues need to be taken into account if there is to be a real attempt to try to address this issue.  
What happens if the test is so high that no territorial customary right can be awarded? How long do we wait? We have already seen under the fisheries legislation that getting the issue of mataitai reserves through has quite a long gestation period. The legislative process has not really applied its thinking to trying to improve that. I do not really think that we should let that happen in this instance. It seems to me that clause 28 is problematic but we will never know until we try it and we have to start somewhere. I accept that. However it does not go far enough.  
There were points within this issue that I think were raised before the select committee and during the discussions by many Maori submitters who said that if we were to have a test it must take into account their own tikanga. I do not know how this can be reflected in law but I think that the way in which it is written in clause 28 is a bit convoluted and we should simplify it a bit more.  
In fact the Maori Land Court really has the expertise in this area and has already made provision for determining issues of tikanga. Perhaps that may be an avenue that may assist the High Court in its determination.  
The other point about the tikanga test is this: will it be clear when evidence is presented to the High Court that those matters can be considered before the court? I am not sure. I hope that it can be and if it cannot it should be fixed at some later date.  
Clause 28 is a bit convoluted as I have already said. The contiguous land issue although it seems that the clause is written as a determining factor should be balanced off against other interests. The points were raised with the select committee I understand that other considerations should be taken into account. We hope that when Maori take the path of determining their territorial customary right to gain a customary title the test applied will achieve that. I am not sure that it will.