Hon Christopher Finlayson

Hon DAVID PARKER (Labour) to the Attorney-General: What will be the practical effect of the change to the approach for establishing customary title, in the Government’s preferred option, in terms of its geographic extent compared with territorial customary rights under the Foreshore and Seabed Act?

 

Hon CHRISTOPHER FINLAYSON (Attorney-General) : It is not possible to predict the exact extent in advance of a negotiation or court process, but as a starting point I have tried to take a principled approach to developing the proposed test for customary title based on how the law could have developed after the decision of the Court of Appeal in relation to Ngāti Apa, and by taking into account the various submissions that were made to the review panel. Final decisions have yet to be made on that test.

Hon David Parker: Does the Minister stand by his statement on The Nation that he is happy to negotiate with iwi over common law rights to foreshore and seabed at the same time that he is negotiating over breaches of the Treaty of Waitangi; if so, what does he say to those concerned that this mixing up of different claims could see customary title being awarded via negotiation in circumstances where the common law would not allow it?

Hon CHRISTOPHER FINLAYSON: Yes, I do, although I do take into account statements that have been made at various meetings. For example, in Napier last week, former Labour MP Bill Sutton emphasised the need for transparency, and I certainly take that on board because I thought it was a very helpful intervention on his part. Care does need to be taken when one is negotiating both—as, for example, is happening with Ngāti Pāhauwera at the moment—to make sure that political decisions are not made that might derogate from a strict application of principle.

Hon Tau Henare: Why does the Government’s preferred approach propose to restore the right for people to go to court to investigate customary title?

Hon CHRISTOPHER FINLAYSON: Because the 2004 legislation extinguished uninvestigated customary title and removed the ability of iwi and hapū to go to court. That is a fundamental human right, and the Government is keen to restore it.

Hon David Parker: What advice has the Minister received about the effect of affirming the declaration of indigenous rights on foreshore and seabed claims?

Hon CHRISTOPHER FINLAYSON: I have received general advice, but I also take into account the approach that would be taken to determine any issue where the United Nations Declaration on the Rights of Indigenous Peoples could arise. One would first, of course, have to go to the particular words of a section in any replacement legislation. One would, of course, have to look at the general scheme of the Act, and one would bear in mind that the declaration is, as the Prime Minister said this afternoon, an aspirational document, which has already been referred to in a number of cases to date. I also refer the member to the 1996 report of the Waitangi Tribunal on the Taranaki claims. The draft declaration was referred to there.

Hon David Parker: Does the Minister agree with the Prime Minister that if the Government’s preferred option proceeds people will not notice any difference compared with the status quo?

Hon CHRISTOPHER FINLAYSON: It is a statement of the obvious, but the Prime Minister is omniscient and I am one of his humble servants. I would have thought that, taking into account all the submissions that have been made and the calibration, there will be an effect, but there will not be an enormous effect. I am focusing there on tests for customary title. I am also taking into account, for example, the very helpful submission provided by the Labour Party to the review panel, by Dr Cullen, where, for example, he spoke about calibrating the test to take into account post-1840 customary transfers—a proposition with which I agree. So they are the sorts of things that need to be addressed, and I think we can achieve a just result without going overboard.