Jones Shane: Marine and Coastal Area (Takutai Moana) Bill — In Committee Speaker Recalled In Committee 
Jones Shane: Marine and Coastal Area (Takutai Moana) Bill — In Committee Speaker Recalled In Committee 
[Volume:670;Page:17315] 
Hon SHANE JONES (Labour) 
: 
 Now that we have returned from a break and had some kai and whakaki te kopu I imagine Mr Tau Henare will resume his more restful self. I want to take up the invitation of the Minister who was in the chair the Attorney-General and go straight to clause 64 and indeed the attendant explanatory clauses 65 to 91 in the Marine and Coastal Area (Takutai Moana) Bill. This debate was always going to turn on how one conceives the extent the character and the depth of any residual Maori proprietorial interest in the seabed and foreshore. 
This debate was rehearsed in the late 1980s because there used to be a similar provision in the Fisheries Act—section 88(2). It was a savings clause that came from earlier bouts of legislation that gave status to Maori fishing interests. The prevailing view of the Crown at that stage was that these interests to the extent that they subsisted into the 20th century were to be found in discrete areas—rocks and reefs. But the Waitangi Tribunal the High Court and inevitably our greatest jurist of all Lord Cooke found that these rights were dynamic and that as the circumstances of the people changed so the character of their rights changed. They were not to be locked or fossilised into the type of economy or the type of society that existed in 1840. Maori asked why it was reasonable for the Crown’s entitlements in the natural estate to be evolutionary and dynamic but the entitlements of Maori as the Treaty partner continued to exist as if it is still 1840. That has been one of the deep unresolved issues over the last 25 to 30 years of the Treaty-based renaissance. 
That is what the Maori Land Court was faced with in the papatipu investigations. In those investigations the Maori Land Court tried to determine firstly how powerful the rights were that a given community had in the landscape. It looked at such things as trapping occupation fishing harvesting of trees and issues to do with general reliance on that part of the economy. From there it framed what would be the nature and extent of largely speaking a Maori collective property right in their natural environment. This is in many respects what we are now asking the High Court to do. Last night I asked whether the High Court will have the necessary expertise in terms of additional resources and rules. I was assured by the Minister as I recall that that work is under way it has already happened etc. 
Hone Harawira made a very useful and accurate point about the extent to which the actual rights of the successful applicants will be far short when we consider that if there is a residual proprietorial interest in a given part of the takutai moana much of it has been hollowed out through accommodated activities and the override entitlement associated with accommodated activities. I think a lot of applicants will find that what they have is a very poor and dare I say it pale imitation of what they believe they are getting back because much has been carved out in order to satisfy other stakeholders. There lies a deep problem if we use exclusively a political process when people probably need to have these things teased out in court if they do not think the political process is the solution. The political process will be dominated from time to time by colleagues of ours from the ACT Party and in other times by far more reasonable characters who will inevitably come from this side of the Chamber. The meaning of “deemed accommodated activities” and accommodated associations etc. will crimp those solutions. 
The Minister is asking us whether the rights we are discussing are static or dynamic. If the society that modern Maori find themselves in has nothing to do with what subsisted in the 1840s or 1850s how do we give expression to those rights? What institutional forms should they take? Can a codified approach which in my view is really designed to prevent wild and unmanageable litigation give a better result than if we leave the issue ill-defined and invite the Waitangi Tribunal to be involved—no doubt having been unfortunately dragooned into action in some manner or form—or if we take it back to the courts? When we use the expression “the threshold test” that is really what we are talking about. 
The answer unfortunately has already been given in this bill. There may be a narrow range of minerals where there is perceived to be a prevailing Maori ownership interest but other minerals have been carved out. The difficulty and the irreconcilable tension is that we may give some tangata whenua group a right and a title and they may have the ability to block someone wanting to engage in economic development activities in their area but at the end of the day the Minister of Conservation will have the overarching yea or nay power. That is why the Maori Party although it agrees this bill is an improvement has overlooked the fact that only minor and modest authority is attached to those tangata whenua groups. At the end of the day the power to allocate to administer and indeed to even regulate the takutai moana titleholders will rest with the Minister of Conservation. Is that necessarily a bad thing? Well someone has to be in power and in control but to suggest that it will provide a basis to restore the rights that romantically exist in the minds of our friends from the Maori Party is wrong. It is also quite misleading to continue to leave our people with the impression that they will be satisfied by the passage of this legislation. 
I will go to clause 61. All of this will be a debate about what is justiciable: what factors a judge or Minister can take into account when we form the final shape depth and value of those rights. Applicants and statutory decision-makers will be able to take into account whether there has been a non-commercial fishing interest and I would caution anyone against reopening that debate and I hope this legislation goes nowhere near to doing that. A lot of the customary fishing rights depend on access and it will not so much be about whether applicant groups have enjoyed unfettered access to the land abutting the takutai moana but whether any of their members have also had that right. As day follows night we can rest assured that there is a vast difference between the applicant tangata whenua group and its members. Without a doubt a number of those members will have certain land rights but those organisations and members will not be congruent with the group that is making the application. Many of those groups will be political in character; they will not be specific or identifiable landowners. Indeed they will create—through I think unwise drafting—situations not unlike the current Maungatautari dispute which involves private individual Maori landowners and individuals in a hapu claimant group. The drafting is unwise—the Minister has gone now and we are unlikely to learn anything from the current Minister in the chair the Minister of Police.