Committee: Marine and Coastal Area (Takutai Moana)(Customary Marine Title) Amendmant Bill

The following contribution was made in the Commitee of the whole house.

I’m interested in a couple of things in the preamble. One of the core tenets of the 2004 ruling and how it proceeded was the Government of the day was asked to demonstrate any Government of New Zealand passing a law that actively extinguished the Māori right to the takutai moana that was vested to Māori in Te Tiriti o Waitangi, so they came up extremely short on that. There hadn’t been an Act of Parliament passed between 1854 and 2004 that actively extinguished the Māori right to the takutai moana, so it stands that it was still there in 2004.

We’re talking about the Māori customary right, and then as the Minister’s talking about balance, we’re talking about the public’s right. I do have a question for the Minister about the extinguishment of that Māori right to the takutai moana that was vested to them in Te Tiriti o Waitangi. The question is, has he found one since then, given the new take on the takutai moana Act? Has there been a revelation that there actually was an Act of Parliament passed into legislation between 1854 and 2004 that actively extinguished that Maori right in Te Tiriti o Waitangi?

The balancing act—I’m interested in the balancing act—comes down to the constitutional framing of the argument. So the two sets of rights being argued are the Māori customary right—yep, I’ve just defined that, how it came about, whether it was extinguished or not; I’ve defined that well—and then the public’s right. The question is, are those two sets of constitutional rights, as set out in Te Tiriti o Waitangi, equally and adequately recognised on the basis of the bicultural constitutional framework of Te Tiriti o Waitangi? That’s pātai number two.

With regard to “held a coastal area exclusively” and “used and occupied it since 1840”, i.e., the threshold, I’ve got a few things here. So coastal land owners, nē? Coastal land owners—we all know them. Heaps of farms around the country run all the way down to the coast—heaps of them in the Ngāti Kere rohe. My understanding, in the Pākehā sense of the law, is that they don’t own the Queen’s Chain—nope. I’ve also established that no Government had passed any legislation between 1854 and 2004 that had actively extinguished the Māori right to that same area, so the Māori right was live. The coastal farm owner doesn’t own the Queen’s Chain.

If the rights vested to Māori in Te Tiriti o Waitangi are still there, the land owner doesn’t own the land right down to the water, and it is indeed just the Queen’s Chain we’re talking about, then there are a few things to be considered. Number one is the Queen’s Chain is there. Number two, the Māori right is there. Those two things went largely without contest under the radar right up until 2004. The Queen’s Government had not passed any legislation between 1854 and 2004 actively extinguishing that Māori right, so the Māori right was still there and the coastal land owners have not impeded the original Tiriti-based Māori right. So where and how is the constitutional right of Māori being recognised by the current actions of the Crown?