Turei Metiria: Marine and Coastal Area (Takutai Moana) Bill — In Committee Speaker Recalled In Committee 
Turei Metiria: Marine and Coastal Area (Takutai Moana) Bill — In Committee Speaker Recalled In Committee 
[Volume:670;Page:17338] 
METIRIA TUREI (Co-Leader—Green) 
: 
 I was speaking earlier about the Green Party’s amendments to Part 3 of the Marine and Coastal Area (Takutai Moana) Bill. Our amendments would omit the two sets of tests and I explained why that was the case. I talked about the Green Party’s belief that Maori should have the right to go to the courts and that that right should be restored in full not in the Clayton’s version that is set out in this bill. We say the right to go to the courts should be restored in full and the courts should determine the tests required to prove that Maori have customary title. The courts should work out what customary title might mean. 
The reason we think the courts are in a better position to do this than the Government is that the courts do not have the same political and economic interests that Governments do in setting the bar high. I say “Governments” because both the National Government and the previous Labour Government have exercised their choice to set the bar too high for Maori to be able to prove that they had customary title. Notwithstanding that the courts do not do everything perfectly they do not have the same political and economic interests as a Government has in the outcome. They have greater flexibility regarding the different tests that they could use. 
The 2004 legislation referred to I think “continuous ownership” or “continuous title” but I cannot even remember the language that was used. There was basically a requirement that Maori had to own the land that sat alongside the foreshore and seabed area and that would enable them to prove ownership. That was impossible for Maori practically everywhere because the colonisation process in this country has been such that that land has been taken from practically every Maori iwi hapu and whanau in the country. That land was taken by force it was taken unlawfully and it was taken in accordance with promises that were never met. Yet that would still be sufficient to extinguish Maori customary title under the 2004 legislation. 
This bill does not have quite the same test as that in the 2004 Act but it does require Maori to have exercised their customary rights or their rights to exclusive use and occupation in a manner that has been substantially uninterrupted since 1840. That is an impossible test. In a colonised country where the vast majority of what was Maori-owned land has been taken by the Crown by Governments there is no way that iwi can legitimately meet a test of exclusive use and occupation that has been substantially uninterrupted since 1840. It simply does not exist in the way that has been set out in this bill. So the bar has been set too high by the National Government and the Maori Party. I do not know why the Maori Party would set as high a test as this a test that by far and away iwi and hapu would not be able to meet. I do not know why the Maori Party would decide that it was OK to set a test as hard as that. The Maori Party readily understands that because this is a colonised country most of that land has been taken. 
Not only have we proposed an amendment on Supplementary Order Paper 206 in my name to remove the tests from the legislation but also if that is not what the Committee wants to do we have proposed an additional amendment to alter the test in the amended version of clause 61 as set out on Supplementary Order Paper 207 in the name of the Minister the Hon Chris Finlayson. Our amendment says a customary marine title will not be considered to be extinguished if somebody has been using the land for access and recreation if somebody who has been using it has placed a structure or some other thing on that land if someone has used it for an unlawful or unauthorised occupation or if someone in the exercise of that unlawful or unauthorised occupation has then placed a thing a structure or a building on that land. 
This amendment just opens up more space for iwi whanui and hapu to be able to meet the test. It means that if that area has been used as a recreational area or an access way by some people without recourse at all to the iwi and hapu who are claiming the customary title then that is not enough to extinguish it.