Katene Rahui: Marine and Coastal Area (Takutai Moana) Bill — In Committee 
Katene Rahui: Marine and Coastal Area (Takutai Moana) Bill — In Committee 
[Volume:670;Page:17403] 
RAHUI KATENE (Maori Party—Te Tai Tonga) 
: 
 I am grateful for the opportunity to speak on Part 4 of the Marine and Coastal Area (Takutai Moana) Bill. I want to speak particularly on clauses 97 and 105. Clause 97 as we know allows the High Court to refer a question of tikanga to the Maori Appellate Court for its opinion or to obtain the advice of a pukenga. The concept of pukenga comes of course from the Maori Land Court and the Maori Appellate Court where the court seeks the assistance of those experts who have experience and knowledge of tikanga Maori. 
It really saddened me to hear the nature of the korero from the ACT Party around tikanga. One of the major achievements the Maori Party has secured in this bill has been to ensure that tikanga permeates the legislation. In that way we see the value accorded to Maori customary values and practices being reflected right throughout. I am mindful of the challenge left by former MP and esteemed Maori leader Ta Apirana Ngata and his much quoted words: “E tipu e rea”. In those words Ta Apirana encouraged Maori to grasp the tools of the Pakeha world while at the same time cherish nga taonga a o tupuna Maori—the treasures of our ancestors. It was if one likes the notion of promoting excellence in both worlds. 
I have to wonder whether the ACT Party has grasped the notion of living in a Treaty-based nation in which partnership means to cherish the foundations of the two Treaty partners working in two worlds Aotearoa New Zealand. A commitment to nationhood driven from the Treaty would mean that this House would never again be subjected to the cultural assault of tikanga being described in the terms of  
Alice in Wonderland 
. 
For the sake of generations to come I want to make it explicitly clear that we in the Maori Party understand that tikanga is consistent with kaupapa Maori—kaupapa such as kotahitanga rangatiratanga and whanaungatanga. Tikanga are our practices that which is tika—true and accurate. Tikanga are derived from kaupapa Maori the foundation of Maori culture and the basis of Maori world views. 
Ironically the reference to  
Alice in Wonderland  
was made during a korero on the preamble—a preamble that monumentally introduces for the first time into any public environment or into any resource management - related legislation the kaupapa of manaakitanga and the tikanga that are derived from it. In Ngai Tahu for example the concept of manaakitanga is the tikanga that tangata whenua practise towards manuhiri and it enabled whalers from foreign shores to remain on the takutai and set up whaling stations. 
The tikanga surrounding manaakitanga is such that the more hospitality that tangata whenua display the more mana they demonstrably possess. Ngai Tahu has great mana as we have seen with their response to recent events that have struck the people of their rohe. So as many people of great mana have done throughout New Zealand’s history they gave without hesitation. 
Manaakitanga as mana in action works only when the system of reciprocity on which it is based is understood. When this legislation states that it should be enacted to reflect the principle of manaakitanga we are not entering a virtual rabbit-hole of unknown qualities or quantities. We know exactly what it is that we seek and that is to restore the balance of mana and to uphold tikanga. 
Although this bill does not propose mana motuhake as some may wish to see it does propose a relationship in keeping with those tikanga derived from the kaupapa of kawanatanga and rangatiratanga. There is great mana in this. In order for the fruits of this exchange of mana to fully materialise it is imperative that local and regional authorities step up to the mark in their exercise of kawanatanga giving mana to those expressions of rangatiratanga by the kaitiaki of takutai moana such as the planning documents. 
Although the misguided few look to role models such as  
Alice in Wonderland 
 I know there are those amongst us who look to our own Pacific role models—figures such as Maui who looked beyond the horizon using the wisdom of his ancestors and the boldness of his youth to seek change in the world. 
The other key clause I want to refer to in Part 4 is clause 105. This is an extremely significant clause that has attracted great interest from those who have taken the time to read the bill. I do have to say in passing that it is hard to tolerate some of the statements I have heard in the public arena from people including some MPs unfortunately who have not read the bill yet claim that they oppose it. I do not understand the logic whereby someone can be opposed to something but not actually know what they are opposing. 
I would like to read from clause 105(3) set out on Supplementary Order Paper 207 which states: “In the case of every application for a recognition order it is presumed in the absence of proof to the contrary that a customary interest has not been extinguished.” Clause 105 the burden of proof clause is a major initiative and I have to say it is a major initiative brought about by the member from the north. 
The 2004 Act required Maori to prove that extinguishment of customary title had not occurred. Proving something had not occurred over a 170-year period was a significant burden on Maori. The takutai moana bill places that burden on the Crown where it should be. If the Crown cannot prove extinguishment then customary title will be recognised provided the other elements of the test are met. Clause 105(2) set out on Supplementary Order Paper 207 provides that for the recognition of customary marine title “the applicant group must prove that the specified area—(a) is held in accordance with tikanga; and (b) has been used and occupied by the applicant group either (i) from 1840 to the present day; or (ii) from the time of a customary transfer to the present day.” 
Clause 105(3) as I have read out provides that it is presumed in the absence of proof to the contrary that a customary interest has not been extinguished. The amendment is required as the Government’s intention regarding burden of proof was unclear. The clause as redrafted is explicit that claimant groups must prove only the positive elements of the test—for example the group has held the area or customary right has been exercised since 1840 in accordance with tikanga. This means the Crown is responsible for proving that the applicant group’s use and occupation of the area has not been exclusive that there has been a substantial interruption to the group’s occupation of the area or that there has been extinguishment at law. 
The intention of clause 105 is to make it clear where the burden of proof lies for the evidence relating to the test for protected customary rights and customary marine title. I want to really highlight this initiative. It is something that I believe establishes a very clear precedent for working in a way in which tangata whenua and the Crown operate as Treaty partners. Clause 105 is a very important issue. It picks up what the Court of Appeal said in the Ngati Apa case—that the burden of extinguishment lies on the person or body that seeks to have it extinguished; in this case the Crown. The Crown has the burden of extinguishment and that is where it should lie and the advice I have received from iwi is that that is a just and proper thing to do. Kia ora.