Wilson Margaret: Foreshore and Seabed Bill — In Committee Speaker Recalled In Committee 
Wilson Margaret: Foreshore and Seabed Bill — In Committee Speaker Recalled In Committee 
[Volume:621;Page:17061] 
Hon MARGARET WILSON (Minister in charge of Treaty of Waitangi Negotiations) 
: 
 I rise to support this part of the bill and also the amendments on the Supplementary Order Paper. I feel it may be useful to go over again the origins of this part of the legislation which have already been touched on by my colleague John Tamihere. The essence of the action to the Court of Appeal was to establish a route whereby Maori customary rights could be determined and recognised formally by the court and specifically by the Maori Land Court. Although those who have read the judgment know that there were eight or nine questions the Court of Appeal really only addressed itself to the question of the appropriateness of the Maori Land Court to be the jurisdiction to determine Maori customary rights. On that question it was quite clear. Therefore the question as to why that is happening would seem to me to be obviously answered by the fact that the Court of Appeal directed that there should be an increase in the jurisdiction of the Maori Land Court in that respect.  
Once that was to be actioned through legislation the question became one of how one would express Maori customary rights. Proposed new clause 42 referred to by the member from the Green Party sets out the test as it is understood and accepted in the common law world. I know there has been a tendency to try to change that test and as such to move away from the origin of those rights which are firmly based in common law customary rights. But the fact remains that their legitimacy and their recognition in the law has to go back to that origin.  
It is true as the members of the Fisheries and Other Sea-related Legislation Committee have indicated in their various contributions in the Committee that there is some difference as to the exact criteria used in determining customary rights in the various jurisdictions and particularly in Canada and Australia from which we take our precedents. The reason why we do not have a strong jurisprudence on customary common law rights is of course due to the Treaty of Waitangi. In fact most of the rights pursued have been founded upon breaches of the treaty. However that has not meant that there have not always been in existence as a residual right the customary common law rights. This legislation is a recognition of those rights for the first time as Maori colleagues have repeatedly said within the context of legislation passed by this Parliament. In that context they do get an added recognition. They get a formality and a clarity and they get a process for enforcement in way that is understood by all parties who will be affected by them.  
The reason why there is the reference to 1840 is almost so obvious that one is embarrassed to actually restate it. I am constantly amazed—and I know I will apologise for this comment—as to how that member wishes to share his ignorance in this area with more people than perhaps is decent. It just seems that 1840 was in fact the significant time. It was at that time that the agreement was reached that did affect the nature of the customary common law rights. By definition without the treaty the whole of the jurisprudence in this country for Maori in terms of addressing breaches would have been based on common law customary right. But because of the treaty and because of the process of extinguishment that in fact is a residual if one likes category for legal action. However it has been seen and is perfectly understood as being a whole new source of jurisprudence that we can recreate in our likeness without any reference back to its common law roots. This legislation says no its legitimacy must be founded in those roots and that is why those criteria are set there and the essence of those criteria is tikanga Maori. One cannot in fact establish the nature of a common law customary right without reference to tikanga Maori and that is why that is explicitly stated within the bill.  
On another matter that the member for the Greens raised I also am puzzled because it seemed to me that clause 42A(3) would address her point.