Tamihere John: Foreshore and Seabed Bill — In Committee Speaker Recalled In Committee 
Tamihere John: Foreshore and Seabed Bill — In Committee Speaker Recalled In Committee 
[Volume:621;Page:17059] 
JOHN TAMIHERE (Labour—Tamaki Makaurau) 
: 
 With regard to Part 3 I make the following observations. I disagree quite vigorously with the New Zealand First member with regard to the criticism of the Maori Land Court bench. The jurisdiction of the Maori Land Court bench has increased somewhat in recent years. That bench rightly or wrongly has a very specific oversight requirement in terms of a totally different form of land tenure that is held in this country. As a consequence it is a court of special character and it does have some very special skills on board it. It has made a number of submissions in a number of areas as judges often do. I did want to stand and say that it is a very fine bench. It works under some significant constraints and I reject the way that it has been criticised in the Committee this afternoon.  
I shall move on to the jurisdiction of the court. The jurisdiction of the court has been clearly constrained in Part 3 relevant to customary rights orders. As to the point made by the Green member who has just resumed her seat I have struggled with the Green member’s contributions all the time in the Committee on this matter. The reason why I struggle is that I do not understand by example what she is actually talking about. Extant rights are protected—existing rights have to be protected. The reality is that if there are Resource Management Act consent issues in the foreshore and seabed domain so be it. Two wrongs do not make a right. The reality is that this particular part of the bill goes directly to the recognition of customary rights orders by way of orders from the Maori Land Court. On that particular basis I want to indicate that the underpinning benchmark if one likes for the finding of a customary rights order is the tikanga test. The tikanga test folds back also into Part 2—the territorial customary rights orders. One cannot have a territorial customary rights order unless there is a tikanga test that underwrites it. Every piece of land in this country that was not confiscated and handed back by way of Crown grant has a whakapapa that goes back to the Native Land Court and that whakapapa is determined solely on tikanga rights. What are some of those rights? They are: te take mataotao te take o te ahi ka te take marena and te take raupatu and so on and so forth. So Maori tikanga has actually founded the title system upon which many Kiwis hold their own land. The reality is that tikanga underwrites the customary rights orders.  
The fact that we have not had the opportunity to explore customary rights because of the finding in the Court of Appeal case that led to this legislation is a worry and a regret. But like all good Governments we have to bring certainty and closure. We have to put a process in place that will achieve a fair and just outcome in the event that common law rights do exist. Where they do exist this legislation puts in place a process that allows Maori to go to the Maori Land Court and to continue to explore whether their rights can be crystallised and whether they can provide the evidence to achieve that. So it is a very simple very clear process and it has a significant precedent base in the Maori Land Court. I support the Maori Land Court bench determining that matter. Because of its special character its special institutional memory and its special recording capability in respect of who holds mana in certain areas and how people actually achieved that mana that is how we can find a faster way of identifying and crystallising whether indeed customary rights continue to exist notwithstanding that the fall of law may have extinguished them. I do not know whether that is so because we have not carried on with that inquiry. So I commend this part of the bill to the Committee because it is a two-part process: territorial customary rights and customary rights orders. Having customary rights orders is obviously a significant plank and a base that can lead one into a territorial customary rights regime. That is part of the evidential track that we have here.  
I conclude by restating the points I wanted to make—that one cannot escape the tikanga test in asserting either a territorial customary right or in this instance a customary rights order. One cannot escape it. It actually underwrites the whole bedrock upon which Maori land law applies. I look forward to us asserting those rights as we continue to roll them out and evidence them.