Jones, Shane: Marine and Coastal Area (Takutai Moana) Bill — In Committee, Speaker Recalled, In Committee
Hon Tau Henare: Tēnā koe.
Hon SHANE JONES: Āe. I want to take on board the admonition offered by the Minister in the chair, the Hon Christopher Finlayson, that we focus on Part 1 of the Marine and Coastal Area (Takutai Moana) Bill. I want to direct our attention to pages 10 and 11. I see some complications and I would be interested to get a response from the Minister. I imagine that work is taking place in relation to how High Court judges and indeed lawyers representing the parties in the inevitable litigation will deal with the notion of mana tuku iho and tangata whenua. I am presuming that the High Court is exploring whether it will need additional expertise or whether some of the—dare I use the term—tikanga of the court need to be amended, although I would note that Christian Whata, certainly one of the most able young Māori lawyers of his generation, is about to join that august company.
Hon Christopher Finlayson: He has done.
Hon SHANE JONES: Unfortunately Mr Ririnui, a man of Waiariki origins, did not extend a pō’hiri when he went to the hākari, the feast, for Christian Whata, to me and Kelvin Davis from Ngāpuhi, so that we could continue our peace-loving ways in that part of Aotearoa. However, it is good that Māori High Court judges will be there but I hope that the Minister will take a call on that because although we are full of passion and are making various political points, after this bill eventually finds its way permanently into the landscape of statutory law, someone will actually have to pick it up in 2014, 2015, 2016, and 2017 and make decisions on behalf of groups as to whether they are hapū or iwi.
I direct the Minister’s attention to purpose clause 4(1)(b), which goes to the heart of what this bill is about. The purpose is, according to that paragraph, to recognise an ill-defined mana tuku iho concept exercised by iwi and hapū as tangata whenua. I can assure the Minister, having spent many years along with three other Māori MPs in this Chamber dealing with these issues in a different part of the coastal environment called the fishing industry, that this will be hotly litigated. This will be hotly debated. I imagine that a judge will, at the end of the day, draw on what has been defined as an iwi in the fisheries settlement. If that proves to be the case—and the Minister in the chair is nodding in the right direction—then I think that that is a sensible way to go. But we should not for a moment imagine that that will bring litigation to an end—unfortunately. It is a further example in the bill, and it might be said of any bill, when we endeavour to bring our Māori terminology into the law.
To that score, I do not think it is a bad idea, unlike our friends from the ACT Party. I will not let it pass that they can stand unchallenged and imagine that they will be rewarded for trying to deprecate Māori culture by analogising it to Alice in Wonderland. I want members to know that one of the figures in Alice in Wonderland was a dodo, and that party will go the way of the dodo if it continues to deprecate those members of Māori descent in this Chamber and the passion with which we seek to maintain culture and pass it on to the next generation. So I encourage members of that party and their supporters to think that perhaps the dodos are Muriel Newman and that gaggle of personalities who through viral means are trying to leave us with the impression that the country is overrun by angry rednecks hating Māori language coming into legislation. I cannot help it if they are actually Don Brash’s voters. They were on that side of the Chamber and now they are disappearing elsewhere, but more about the Mad Hatters at a later stage.
I come to clause 6. I have signalled that the High Court, if measures have not been taken, ought to ensure that its tikanga and rules are evolved to deal with these challenging issues, but, more important, that we have the right level of expertise there, because I am a great believer in the inherent jurisdiction of the High Court—and I see it. I have said earlier that it was a bleak day when we left that very vague and ambiguous in our time. I am on record as saying that, so it would be good to know that that is the case. I want to move right along to clause 6. I imagine that the Minister is putting before the Committee a distillation of what will be the responsibilities in international law of the Crown, given that we are going forward with an idea that the actual seabed and foreshore, takutai moana, coastal space, and so on, will not be vested in the Crown as such but will be an open space, a public space—takiwā marea is, off the top of my head, my translation for open and public space.
But I would caution us against providing any opportunity in this bill that allows, quite frankly, for a debate and a legal tussle as to what is the scope of the Crown’s sovereignty, because the logical conclusion is that once we strip away the Crown as being the putative or exclusive owner on behalf of society and we introduce this other notion, it will be challenged in the courts as to what is public space and so on, how far private property rights stretch, even if they are customary associations, customary interests, or perhaps enforceable rights, and how far the notion of a dimension of an unfettered public space actually goes. So I ask for a bit of clarification around those issues, because there is the notion that this bill will turn from a debate about historic associations and residual interests into a debate on whether any subsisting sovereignty elements are in the actual seabed and foreshore legislation other than the ability of a democratically elected Government to regulate. Unfortunately I was not on the Māori Affairs Committee save for one or two meetings and I am not actually apprised of how that was explored by submitters, but it is an important point.
Unlike the lucidity that is evident in my speech, questions on the day from Paul Quinn, who is hollering and who could also be a part of the Alice in Wonderland fairytale, generally bamboozled the submitters. Even when I was there, people wanted to answer his questions, but such was the ambiguity of his questions that he was consistently told by the chair to turituri, to keep quiet. I do not know how well they get along with each other.
I want to now come to the notion of the marine and coastal area. According to the ACT spokesman, there is an assumption that because we have defined the area in question as being out there on the horizon, te pae, and on the mean high-water spring, that somehow this represents an opportunity for muck and gouging. Ambiguity should be addressed. If there is ambiguity, it is reasonable that the Minister should, during the course of our deliberations, say that it is just a simple physical description and that it does not represent an assignment of potential wealth or residual interests that will one day grow from being perhaps a rock or a defined discrete area that a hapū still has, and that then somehow grows further into including all the ironsands off the west coast of Te Ika-a-Māui. Unfortunately, that would be of no good to my iwi because we are on the east coast in the far north, and as a consequence of iwi activists, not the least of whom is Margaret Mutu, our settlement gets further and further away. But that is another matter. I do not mean to be personal in any denigratory way or in any manner of form. I just want it known that I am not motivated when I mention ironsands. But I do think it is a reasonable point. I have my senior colleague here. He and I both have some concerns about these ambiguities because there is a host of changes. If what is at stake is a significant natural resource and is valuable to the overarching interests of the country, then it is good for the Minister to say that, no, it will not actually be lost.