Parliamentary debates: Tuesday, 14 October 2025

Almighty God, we give thanks for the blessings which have been bestowed on us. Laying aside all personal interests, we acknowledge the King and pray for guidance in our deliberations, that we may conduct the affairs of this House with wisdom, justice, mercy, and humility for the welfare and peace of New Zealand. Amen.

Members, I understand that Michael John Davidson is present and wishes to make the Affirmation of Allegiance. Would he please come forward to the chair on my right.

Ko ahau, ko Michael John Davidson, e kī ana i runga i te pono, i te tika, i te ngākau tapatahi me te whakaū anō ka noho pirihonga, ka noho pūmau ki a Kīngi Tiāre te Tuatoru me tōna kāhui whakaheke e ai ki te ture.

[I, Michael John Davidson, solemnly, sincerely, and truly declare and affirm that I will be faithful and bear true allegiance to His Majesty King Charles III, His heirs and successors, according to law.]

Members, last Thursday afternoon, I suspended the House for what I considered to be disruption coming from the galleries of Parliament. This disruption occurred after the maiden speech of Oriini Kaipara. That statement was delivered following question time because Te Pāti Māori had asked the Business Committee if they could move that speaking time to accommodate a slot that would mean that more people who were here to see the swearing in could see the maiden speech, as well.

Outside of the Address in Reply debate, maiden speeches are usually at some time between 5.40 and 6 p.m. on a sitting day, meaning that any overtime running into the dinner break would not be taking time from the legislative process of the House. Similarly, if the speech goes over time in the Address in Reply debate, it comes from a party’s allocation.

The Business Committee decision to facilitate the speech following question time was on the understanding that it would be a statement and a waiata, all within 15 minutes allowed under Standing Order 368. That did not occur. The speech went on for quite some time, well past the 15 minutes, followed by a waiata and then a haka from the gallery.

There is no issue with waiata. There is no issue with haka. But there is an issue with the disrespect for process that was shown last Thursday.

The Standing Orders of this House have been developed over 171 years to facilitate the legislative process and to ensure that, in its work, the views of those elected to this Parliament could be heard. Our Standing Orders suppose that all members are honourable members and that they can be taken at their word. They are written and adopted in that light and, accordingly, are not particularly prescriptive about sanctions that the Speaker alone can instigate when agreements of the Business Committee are not observed, or other matters in the House sit outside the Standing Orders. In most cases, this is the prerogative of the Privileges Committee, who consider matters referred to it by the Speaker on complaint of another member.

The Speaker can name a member. If a member is named, as provided in Standing Order 91, with a consequential suspension from the House—Standing Order 94—a vote must be taken so the whole Parliament votes for or against the suspension. The Speaker can require members to leave the Chamber for disruptive behaviour or non-compliance with a direction or a ruling. That occurs periodically and can be seen more as a cooling-down period than a particular admonishment. None of these measures was put in place at a time when members writing them would have contemplated the Parliament being used as a stage on which members’ speaking times associated with the legislative process were more of a performance nature and recorded and posted on social media.

It was disorderly for Oriini Kaipara to continue speaking beyond the allocated 15 minutes, and despite several bells politely indicating to the member that time was up, it was, in my view, contemptuous, after asking the Business Committee for the concession allowing the time of the speech to be straight after question time, to then ignore that agreed allocated time.

The Business Committee is essential for the fair operating of Parliament. It works by seeking unanimous or near-unanimous agreement and proceeds on that basis. As I’ve said, all members are honourable members and should be taken at their word. To ignore a Business Committee decision challenges that premise.

There will be future requests to accommodate various requests from Te Pāti Māori. Consideration of those requests will be clouded by the disruption of last Thursday.

After nearly two years in this role, it is now regrettably clear that some elected to this House see disruption and dissent as more important than legislative achievement. I respect that all members of this House are equally elected, but I think they equally have a responsibility to uphold the dignity of the House. That does not preclude vigorous debate, and it does not imply consensus of views, but it does require respect for process and respect for one another.

To start representation in this House with a referral to the Privileges Committee for an incident that occurred just minutes after being sworn in could be seen as particularly pernicious. I have had no referral request, perhaps because wiser heads in this House know that new members rely heavily on the advice and guidance of more experienced colleagues and leaders.

Failure of the leadership to guide members is beyond the reach of the Standing Orders. Caucus discipline is important. Leaders have an obligation to instil that, and parties receive funding to give effect to the benefit of caucus discipline. It is also to the benefit of individual members who ascribe authority to a caucus.

Last Thursday’s engagement from the gallery could have been accommodated if Oriini Kaipara had stuck to the Business Committee decision. Choosing to ignore that turns celebration into disruption. More than that, it highlights a fractious and, at times, inequitable Parliament.

While I firmly believe that the atmosphere in Parliament is the business of its members and that the Standing Orders should accommodate good humour and reasonable banter, it is my intention that, from this point, I will more critically apply the limited measures available to a Speaker to ensure greater respect is shown from members, one to the other, and the dignity of the House and the processes of the House are upheld.

Later this afternoon, I intend engaging the Business Committee on changes to attendance records, to dress standards, and to leave provisions. Further, from today, question time in the House will revert to Standing Order 397(1), and supplementary questions will be entirely at the discretion of the Speaker.

Respect and dignity should be at the front of minds for all members of this House.

A petition has been delivered to the Clerk for presentation.

Petition of Raiha McDonald requesting that the House amend its rules so that comments that are discriminatory against immigrant New Zealanders are no longer considered acceptable in Parliament’s rules.

That petition stands referred to the Petitions Committee. Ministers have delivered 11 papers.

The financial statements of the Government of New Zealand for the year ending 30 June 2025

the 2024-25 annual reports of

Air New Zealand

the Ministry of Business, Innovation and Employment

the Ministry of Education

the Natural Hazards Commission, and

Statistics New Zealand

report in relation to selected non-departmental appropriations for the police portfolio in Vote Business, Science and Innovation for the year ending 30 June 2025

the NZQA statement of intent for 2025-26 to 2028-29 and statement of performance expectations for 2025-26, and

Government responses to the petition of Focus on Iran and the report of the Environment Committee on the petition of David Famularo.

I’ve received the 2024-25 annual reports of the Parliament sector and the Controller and Auditor-General. Those papers are published under the authority of the House. Six select committee reports have been delivered for presentation.

Report of the Environment Committee on the report of the Parliamentary Commissioner for the Environment, Are we building harder, hotter cities? The vital importance of urban green spaces

report of the Finance and Expenditure Committee on the Regulatory Standards Bill

reports of the Health Committee on the Gene Technology Bill and the review briefing of the 2023-24 annual review of the Health Quality and Safety Commission

report of the Petitions Committee on the petition of Ngaire Hoko: Reform KiwiSaver Act 2006 to expand home purchase provisions, and

report of the Regulations Review Committee on the complaint about the Incorporated Societies Regulations 2023.

The bills are set down for second reading. The report, review briefings, and complaint are set down for consideration. The Clerk has been informed of the introduction of two bills.

Racing Industry (Closure of Greyhound Racing Industry) Amendment Bill, introduction

Redress System for Abuse in Care Bill, introduction.

Those bills are set down for first reading.

to the Prime Minister

Does he have confidence in the actions of all his Ministers?

Yes.

Was the Prime Minister or Cabinet Office made aware of any potential conflict of interest with the Minister for the Environment attempting to influence a consent process from which a National MP’s company could benefit, and does he consider this an appropriate action for his Minister to take?

I’ve been completely comfortable with the engagement between the Minister for the Environment and the MP involved.

Does he think that paragraph 2.68 of the Cabinet Manual has been upheld, where “Public perception is a very important factor. If a conflict arises in relation to the interests of family, whānau, or close associates, Ministers should take appropriate action”; and, if so, what appropriate action did the Minister take to avoid public perception of a conflict of interest?

In answer to the first leg of the question, I’m completely comfortable that the Minister is compliant with the Cabinet Manual, and particularly 2.68.

Does he think it’s fair to the other farmers and water users in this catchment that his Minister is risking the ecological health of the catchment by pressuring councils to grant consents for particular individuals?

No, it’s entirely appropriate for the Minister to have—

Point of order. Sir, I invite you to study carefully the content of that question.

Yes, I was about to intervene on that. The member can word the question in a different way, but do not put an allegation in a question.

Does he think it’s fair to the other farmers and water users in this catchment that his Minister may be risking the ecological health of the catchment by pressuring councils to grant consents for particular individuals?

No, you can’t assert that either. You can ask a question that doesn’t have inferences in it or allegations.

Does he think it’s fair to the other farmers and water users in this catchment the way that his Minister has been using her power to privilege—

No, you can’t say that, sorry; that’s the end of the supplementaries on that question, so I’ll go to the—

Supplementary question.

Point of order, the Rt Hon Winston Peters.

Mr Speaker, I want a supplementary question.

Oh, yeah. OK.

Of the Prime Minister—going from the questioner’s original draft of the primary question—would he have confidence if any Minister couldn’t spell “Ministers” properly?

OK, point made.

to the Prime Minister

Does he stand by all his Government’s statements and actions?

Yes.

Does he stand by his statement, “Economic growth is going to influence every decision I take this year.”; if so, why did he shrink the economy by almost 1 percent in the last quarter?

Well, because we had a very poor inheritance from the previous Government, which was Government spending that went up 84 percent, a lot of it very wasteful. That drove up inflation over 7 percent. That drove up interest rates—there were 12 interest rate rises under the member’s previous Government—and that put the country into recession and raised unemployment. That’s what this Government is working incredibly hard to do. We’ve got spending under control. We’ve got inflation down. We’ve got interest rates down. Growth is coming; jobs are coming.

Which thing is he most proud of: a shrinking economy, rising unemployment, more kids living in poverty, more homelessness, or record numbers of New Zealanders giving up and leaving the country?

Well, on the last point, I’d just say to the member: it’s rather ironic that he talks about the number of New Zealanders leaving New Zealand, which is at a high, and it is a function of the economic conditions that he left with his previous Government. He’s also a leader that actually says, “We’re not going to do oil and gas”, and what do a lot of New Zealanders do when they go to Australia? They go work in the oil and gas sector. He’s the member that says, “We’re not going to do mining”, but, actually, what do they do when they go to Australia? They go work in mining. He’s the member that says he won’t support fast-track, because that’s about getting construction jobs out to New Zealanders, but he won’t support that either. I’d just say to the member: if you’re serious about it, rather than the crocodile tears why don’t you back it up with some proper action and get in behind backing oil and gas?

On the topic of construction, does he agree with Christopher Luxon, “At the most basic level, the problem is not enough money being spent on new and existing infrastructure.”; if so, why did he slash nearly $3 billion in infrastructure investment in his first year as Prime Minister?

Point of order. In light of your earlier comments, I just wonder if the preamble to that question was acceptable and within the Standing Orders.

Yes, I think it was. Carry on.

Well, what I’d say to the member is that he has a problem with equity and debt—with understanding that—as we saw with the Chorus statement this week, but he also has a major problem understanding that, in construction, interest rates are the critical piece that enables developers to actually borrow money to go off and get things built. When you actually crash the car and you crash the economy like he did last time he was in charge—and will do again with more spending, more borrowing, more taxes—you’ve got to fix interest rates—

Now, I’m going to stop the Prime Minister there. When you’re giving an answer like that, you can speak about the actions of a Government that you inherit, not the individual who you’re speaking to.

So why did he cut $3 billion of public investment in infrastructure in his first year as Prime Minister?

I’m actually very proud that we’ve accelerated $7 billion worth of infrastructure investment that’s actually starting before Christmas. That’s helping. But what we’re doing is actually getting spending under control. We’ve brought inflation down from a record high and pathetic 7.5 percent, from his economic management last time, to 2.7 percent. That’s lowered interest rates. Interest rates are down eight times under this Government; they were up 12 times under his.

Does he stand by his statement, “We’re determined to get the building and construction sector firing on all cylinders.”; if so, are 20,000 job losses in the construction sector the type of firing he was referring to?

Isn’t it funny, the great gaslighter forgets about something called interest rates, which he doesn’t take responsibility for creating. How on earth do you increase spending by 84 percent, drive up inflation over 7.5 percent, have 12 interest rate rises, and then ask some questions about how the construction industry works? Get back and understand some economics.

So why does he think billions of dollars of public money is better spent on tax cuts for landlords and tobacco companies instead of the infrastructure that he has cut spending on?

Again, I’m proud of the fact that, actually, we lowered tax for low- and middle-income working New Zealanders—something the Labour-Greens opposed but that actually puts more money into working New Zealanders. That’s a good thing.

Is it possible to “Spend money on tax cuts”, or is a tax cut when people just keep more of the money that belongs to them in the first place? How does it work?

Well, it works because you have an economic philosophy that you’re going to spend more, you’re going to borrow more, you’re going to tax more, and it doesn’t matter whether it’s Labour, the Greens, or Te Pāti Māori, that’s what that uni-party is going to do. They’re going to continue with the track and the mess that put us in this position.

to the Acting Minister of Finance

What recent reports has she seen on the Government’s financial position?

Last week, Treasury released the Government financial statements for 2024-25. These are actual numbers, not forecasts or projections. They’re the first year-end statements to fully reflect decisions made by the current Government, and they show progress in getting the country’s books back in order. As a share of GDP, core Crown expenses fell from 33.1 percent in 2023-24 to 32.5 in 2024-25. Our intention is to bring spending down even more as a proportion of the economy, and that intention is reflected in the Budget forecasts.

What do the financial statements say about the operating balance?

The Government’s headline operating balance, known as OBEGALx, remains steady at a deficit of 2.1 percent of GDP. In dollar terms, the deficit came in $900 million better than was forecast at the time of the Budget. That is progress, but there is still a lot of work to do. The operating balance has been in deficit for the last six years. The Government’s intention is to return to surplus, and the Budget forecasts show this happening at the end of the forecast period, in 2028-29.

What do the financial statements say about Government debt?

Net core Crown debt remains steady at 41.8 percent of GDP. Over the previous five years, debt as a percentage of GDP rose every year. The Government’s intention over the forecast period is to bend the debt curve down. Instead of going up, we want it going down. More specifically, our intention is to put net core Crown debt as a percentage of GDP on a downward trajectory towards 40 percent, and that is what the Budget forecasts show.

What is the next major release on the Government’s financial position?

Treasury will present its latest forecasts in the half-year update on 16 December. At the same time, I will present the Budget Policy Statement. This is a chance for the Government to respond to the forecast, including any changes to its fiscal strategy. The Budget Policy Statement lays out the goals and objectives that will guide the Government’s decisions in the Budget. I want to say now that members should not expect any surprises. The Government’s objectives have consistently been to deliver better public services, improve long-term productivity, and get the books back in order. That will continue.

to the Minister of Finance

Is the record 73,900 New Zealand citizens leaving the country a sign that her economic plan is a success; if not, why not?

It’s a sign that New Zealand citizens have decided to live somewhere else for a while. This is not a phenomenon that is unknown to New Zealand Governments and, indeed, the New Zealand economy. Some people leave for a relatively short time, others leave for a longer time, and many come back home. Often their decision is based on opportunities available overseas. It is a reality that Australia is a wealthier country than New Zealand and can pay higher wages, including, I might say, in industries such as mining and oil and gas. Members will draw their own conclusions about parties’ attitudes towards those.

Are a record number of New Zealanders leaving because the cost of utilities are up 19.3 percent from a year earlier, including rates, water charges, and energy bills? [Interruption]

Let’s just see if we can get the answer.

It is undoubtedly true that the Government and the country have challenges around energy security and energy affordability. I would encourage that member and her party to reflect on the retrograde decision they have made to not support the repeal of the oil and gas ban. In the feedback coming through in her sojourn round the boardrooms of Auckland, she will know that some of the feedback coming from the business community and the energy sector has been to plead with the Opposition to support the Government’s move on energy security. She should start listening to the voices of reason in the business community that want bipartisanship on energy policy, because the best thing we could do for this country’s energy security is firm up the gas supply to make sure we keep the lights on.

So will energy prices—[Interruption]

Just hang on—hang on. OK.

Will she commit to bringing down energy prices as a result—and a direct result—of her energy strategy?

As the member well knows, no. The Government’s intention—[Interruption] Well, if the Opposition wants to campaign on bringing down energy prices, good luck. The Government’s intention is to put downward pressure on energy prices, which will come from a combination of Resource Management Act (RMA) reform, planning reform, sorting out the dysfunctionality of the energy market through the Electricity Authority, and the hard work being led by the Minister of Energy, and it will come from long-term stability when it comes to gas supply, which is why I repeat, again, that the Opposition should get on board with rational economic policy and realise that New Zealand’s energy security is underpinned by thermal electricity powered by gas. Stability around that will be the single best thing that the Opposition could do to energy policy.

That was an exceptionally long answer. I’m sure they’ll be more concise from this point on.

Are a record number of New Zealanders leaving because the service sector has been contracting for every month since she took office?

Well, the member just makes a point that, I think, has been well canvassed already, which is that the Government inherited a perilous economic situation. We are putting in place long-term structural reforms to sort out this economy: planning reform, infrastructure funding and financing, cutting red tape, sorting out the energy sector, boosting—as the Prime Minister said—our trade and services exports including by signing record free-trade deals. The member can just look at the numbers from the United Arab Emirates free-trade deal for an example of the outward-facing economy this Government is building.

Are a record number of Kiwis leaving because, as Christopher Luxon has said, “If you want a job, go where the jobs are.”?

Well, it’s very interesting. A number of New Zealanders started to leave in October 2020—I wonder what was going on then. Here is the graph. Here are the net departures, which started in 2020, and you can see this massive decline in the number of people leaving New Zealand during the months of 2020, 2021, 2022, and 2023. Last time I looked, this Government wasn’t in charge then. Actually, the number of people leaving, on net, has flattened out. Do we have more work to do? Of course we do, but the facts are this: under that last Government’s epic mismanagement of the economy, people fled New Zealand. We are turning it around, and she should get on board with that.

to the Minister of Education

What recent data has she seen on literacy achievement?

This year, our education reform got under way. We mandated structured literacy and introduced a phonics check after 20 and 40 weeks at school to test how well our youngest readers were learning to sound out words. The latest report shows an incredible improvement in the number of students who are reaching 20 weeks at school at expected levels of phonics, up from 36 percent in term 1 to 58 percent in term 3. Our students’ reading ability has declined over many decades, but with a focus on teaching the basics brilliantly, an hour a day of reading, and implementing an evidence-based structured literacy approach, we are building the strong foundations required to turn that around.

What does the report show for children who need extra support?

Very simple: it shows that structured literacy reduces the number of students requiring extra support. In term 1, 52 percent of students required extra support, compared to 33 percent by term 3. This is a significant drop from over a half to a third of children needing support at their 20-week check. Our reforms are data driven and evidence informed, and these early results show what can be achieved when a Government focuses on raising achievement and backs teachers with the resources to implement change.

What does the report say about Māori and low-decile achievement?

Even more excellent news: in every decile for every ethnicity, results have significantly improved. For our tamariki Māori, I’m especially proud that 25 percent were at expectation in term 1 at their 20-week check, and this has risen to 43 percent in term 3 after two short terms. Sixty-eight percent needed extra support in term 1, falling to 47 percent needing support in term 3. This Government is focused on raising achievement and closing the equity gap, and these results for tamariki Māori are the first time we’ve seen such improvements to reading data in many, many years.

Why have these results been so positive?

We mandated structured literacy; we introduced a new English curriculum backing structured literacy; we trained over 33,000 teachers in structured literacy; we provided cash to schools for more structured literacy resources; and we provided 349 structured literacy intervention teachers to over 1,240 schools to support students who need help. But, while we set the policy and we resourced it, we didn’t teach a single child to read; our incredible teachers did that. These results are so positive because teachers across New Zealand worked hard to implement reform at pace, and these incredible results are a testament to their hard work, their dedication, and their passion for their students. This data represents thousands of children who are on track for success, and I’m proud to be part of a team that made this happen.

Minister, are you saying that if one can phonetically pronounce “honesty” and “integrity”, then one would be better able to actually write those words properly and, better still, possibly practise them?

Phonemic awareness and phonics and structured literacy are about sounding out words. It’s about taking the letters in “honesty” and “integrity”, sounding them out letter by letter, so that our littlest learners can pronounce those words with confidence and ease.

to the Prime Minister

E tautoko ana ia i ngā kōrero me ngā mahi katoa a tōna Kāwanatanga?

[Does he stand by all of his Government’s statements and actions?]

Yes.

Did the Prime Minister give agricultural polluters a free ride instead of requiring them to do their fair share of emissions reductions, given that this means that households and businesses—[Interruption] Mr Speaker, do some people have to shush, or all of us, while we’re asking questions?

I was trying very carefully to listen to your question, but there was far too much talk going on in the House at that time. Please ask the question again.

Thank you. Did the Prime Minister give agricultural polluters a free ride instead of requiring them to do their fair share of emissions reductions, given that this means that households and businesses will have to shoulder more of the emissions reduction, increasing the cost of living for everyday New Zealanders?

No. Our farmers are the world’s most productive, best, and most carbon-efficient farmers in the world. We’re proud of them.

Does the Prime Minister understand that weakening methane targets actually harms farmers’ livelihoods and increases their long-term cost of living as farmers are at the front line of climate-driven extreme weather events that threaten global food production and raise insurance premiums?

Well, I tell you, this Government is not going to shut down Kiwi farms and send that production to less carbon-efficient places and less productive places and make global greenhouse gas emissions worse.

How can he claim that his targets are based on anything other than corporate interests—

Rubbish!

—when world-leading—

No, sorry. Stop. You might find that a useful comment for yourself but not for the House. The member will start her question again, and there will be silence while it’s asked.

How can he claim that his targets are based on anything other than corporate interests when world-leading climate scientists have described his weakening of methane targets as “a great way of shooting yourself in the foot” and “New Zealand is setting a dangerous precedent that other governments must not follow”?

I reject the characterisation of that question, but I just say to the member: as part of a Labour-Greens Government who wanted to shut down New Zealand farms and send production overseas, why don’t you come on board and actually support that policy too? It’s going to be very interesting to see what the Labour Party says about that.

Is the Prime Minister governing New Zealand in the interests of corporate lobbyists or in the interests of everyday New Zealanders, and, if the latter, can he explain why corporate agriculture lobby groups had early access to information enabling—

Point of order. Mr Speaker, that member’s been around here long enough to understand that you’re allowed to ask one question at a time, not two. She’s been around here far too long not to have learnt that, surely, and she should have been stopped.

Well, look, the rules are that, while the question might have several legs in it, the person answering that question only has to address one.

In answer to the first leg, no.

Why is his Minister for Treaty of Waitangi Negotiations pushing a bill through this House, today, that the Waitangi Tribunal has described as a “gross breach” of Te Tiriti, which would, “significantly endanger the Māori-Crown relationship”?

We disagree with that. We’re actually just putting it back to what Parliament originally intended.

Is he comfortable with the fact that some are describing his Government’s changes to the Marine and Coastal Area (Takutai Moana) Act as “the biggest raupatu … that Te Ao Māori have faced” due to these changes making it significantly harder for iwi, hapū, and whānau to have their customary rights to the takutai moana recognised?

Point of order, Mr Speaker. I think if a member is going to quote something, she’s got to quote a source. It’s not legitimate, surely, to just say, “some people have described it as”. I mean, it literally could be anyone. There needs to be some, at least, sourcing for the quote that she’s quoted from.

I think that that’s for primary questions. The supplementary questions are not quite so rigorously enforced, but it certainly doesn’t do the question any credit by just expressing it in such general terms. If there is someone to be quoted, then quote them.

Supplementary!

No, we’re still on over here.

I will repeat that question in light of the conversation, Mr Speaker. Is he comfortable with the fact that Māori leaders are describing his Government’s changes to the marine and coastal area Act as “the biggest raupatu … that Te Ao Māori have faced” due to these changes making it significantly harder for iwi, hapū, and whānau to have their customary rights to takutai moana recognised?

Look, I think we’ve traversed this many times before. The Court of Appeal lowered the threshold. We had a high threshold under the legislation. We’re just returning it to what Parliament intended.

Does the Prime Minister think that farmers are corporate lobbyists?

No, I think farmers should be deeply valued and not treated like villains as they were under a Labour-Greens Government.

Does the Prime Minister understand that Māori exercise kaitiakitanga and protection for the benefit of all of us here in Aotearoa—for example, when they veto applications for private companies to mine in our precious moana—and that by removing recognition of customary rights in the takutai moana, his Government has taken this away?

The member may disagree, but I’m just saying to the member that our position’s very clear. As a Government, we’re just returning what was a lowered threshold under the courts back to what Parliament intended.

to the Minister of Health

Why has the number of people unable to afford a doctor’s visit increased under this Government?

As the member will be aware, this follows a 30 percent increase in GP fees between 2017 and 2023. Our Government has delivered the biggest ever funding boost for GPs—$175 million for this year alone—and capped fee increases at 3 percent, keeping costs stable and predictable. Today, 90 percent of adults without a community services card pay $70 or less to see their general practitioner. Access remains the number one barrier for patients. That is why we are focused on affordability and accessibility. We’re extending prescriptions to 12 months, we’re saving patients up to $105 a year in GP fees, strengthening the primary care workforce, we have launched a 24/7 online GP care service for times when patients can’t see their regular doctor, and we continue targeted support through subsidised GP visits for the community services card holders and the Very Low Cost Access scheme. All of this is about putting patients first and making sure that every Kiwi can see a doctor when they need to.

What good is capping fees when under-funded practices start charging for double consultations, leading to the pensioner who wrote to me saying, “I pay $91 for a 15-minute visit, and you’re only allowed to talk about one thing. If you want to talk about two things, you need to pay for another $91. I cannot afford to pay this.”?

As I said, 90 percent of adults without a community services card are paying $70 or less to see their general practitioner. As I also said, the increase in the number of people saying they’re unable to afford a doctor’s visit increased because, under the previous Government, GP fees increased by 30 percent between 2017 and 2023. We’re doing things to fix it, focusing on affordability and accessibility, including the extension of prescriptions to 12 months. As of yet, I have not heard what the Labour Party position is. Do they support it?

Was a heart patient correct when they wrote to me, “On several occasions, I have avoided visiting the GP because I cannot afford the fees. Instead, I end up going to the emergency room and waiting for hours to be seen.”, or is this patient’s experience what the Minister meant when he said concern about fees was “misinformation put about by the Labour Party”?

Well, as I said in my primary answer, the increase in GP fees of 30 percent occurred under the previous Government. We are focused on affordability and accessibility, including extending prescriptions to 12 months, where safe, which will save patients up to $105 per year in GP fees starting from early next year. I’m yet to hear whether or not the Labour Party supports that policy.

Was the family of six correct when they wrote, “First appointment at our new GP cost $660, $110 each.”, and will he write this off as “misinformation” or admit that first-visit fees are a genuine barrier to enrolment?

Well, as I said in my primary answer, 90 percent of adults without a community services card pay $70 or less to see a general practitioner. Under her watch, general practitioner fees increased by 30 percent. We are focused on accessibility and affordability, and one of the ways that we can do that is by allowing GPs to extend prescriptions up to 12 months, which will save people with long-term conditions up to $105 on GP fees each year. Also, it’ll mean that our GPs are able to see more patients. I’m yet to hear whether or not the Labour Party supports that practical policy to reduce costs on patients.

Good. That’s enough time.

Was the full-time worker who wrote to me, “I make good money, but with the cost of living, I cannot afford to see my doctor. A hundred dollars is so extreme for a 15-minute consultation.”, or are his circumstances “misinformation” too?

Well, as I said in my primary answer, 90 percent of adults without a community services card pay $70 or less to see their GP, and under her watch, the Labour Party let GP fees increase by 30 percent over their six years in office. As I say, you can’t trust Labour when it comes to GP fees.

Point of order. Mr Speaker, I noticed the questioner quoted from two pieces of correspondence she received, though she never offered to table them. How do we know they exist in the first place? Perhaps she could be asked to table them now?

Well, that is a request that you, obviously, have made by way of point of order. The point is that it goes to the heart of what I said before: all members should be considered honourable members and taken at their word. Now, if there is something to be tabled, then the member is entitled to table it.

to the Prime Minister

Does he stand by all of his Government’s statements and actions?

Yes.

Does he stand by his decision to exclude Te Tiriti o Waitangi from the Regulatory Standards Bill, given that this bill defines the constitutional test for every future law?

Well, not every bill needs a reference to the Treaty in it. As we’ve said, we want a narrow focus to make sure that, actually, any reference to the Treaty—its application is very clear for everybody involved. I can reassure the member that Treaty settlements will not be impacted by this bill.

Will he support amendments to include Te Tiriti o Waitangi and tikanga Māori as foundational principles of a good regulation, to ensure Māori interests are upheld in lawmaking; if not, why not?

Well, as I’ve said before, we don’t want general, open-ended references to the Treaty that don’t give clarity to participants as to how to enact that legislation, so we’ll continue to work through that. I just reassure the member, again: Treaty settlements are not impacted.

How does he reconcile opposing the Treaty principles bill while supporting the Regulatory Standards Bill, which, effectively, achieves the same intent by other means?

As the tribunal accepts, there are no Treaty settlements going to be affected by this bill. Again, I’d just say to the member, it’s interesting that I’ve never had a question from that member about what we are doing to improve literacy with young Māori students. I’ve never had a question about what we’re doing to make sure that—

No—that’s all right. That’s all right.

—Māori are not victims of crime.

Point of order.

Supplementary.

Just a moment—I think Debbie Ngarewa-Packer had the floor.

Point of order, Mr Speaker. That has absolutely no relevance to the question at hand.

And I just made that point.

Does the Prime Minister agree that the success of policies such as structured literacy and charter schools make the case that it is possible to uplift young Māori educational outcomes without making any reference to the Treaty whatsoever?

Absolutely.

Does he agree with the Public Health Communication Centre that this bill risks obstructing future tobacco, alcohol, or sugar regulations, worsening existing health inequities for Māori?

No.

What assurances, if any, can he give that the Regulatory Standards Bill won’t undermine the Government’s ability to implement Treaty clauses and needs-based, Māori-specific provisions in health, education, and environmental legislation?

Well, this is designed to improve the quality of regulation, which will actually lead to better benefits and outcomes for all New Zealanders, Māori or non-Māori.

Why is he proceeding with the Regulatory Standards Bill without a public mandate, when 99 percent of the 159,000 submitters opposed it?

We want to make sure we have better quality regulation and we reduce the compliance burden.

to the Associate Minister of Housing

How many pregnant women have been refused access to emergency housing since December 2023, broken down by region, if any?

I’m advised that the Ministry of Housing and Urban Development does not record the pregnancy status of applicants for emergency housing. But, in my humble opinion, respectfully, I think it is potentially reckless and insensitive that the member would consider it appropriate for officialdom to ask women seeking emergency housing support, often in difficult circumstances, if they are hapū or not.

Supplementary. [Interruption]

The House will just calm itself, thank you.

Is he aware of the recent case of a pregnant woman in Masterton who was denied emergency housing, as reported in the media; if so, why did he not mention that?

I’ve only recently, as of today, become aware of that. If the member wishes to take some time to put together an authority to act and send it to me, maybe I could look at it further, with his support.

Point of order, Mr Speaker. Thank you, sir. In the primary question, which was on notice, I asked the Minister how many pregnant women had been refused access. In the supplementary, he conceded to the House that he was aware of one instance that was reported in the media. How can those two answers wash?

Well, he also added the word “today”, so I took it that he learnt of it when you raised it in the question. I don’t think that that’s unreasonable.

Will he now concede that front-line providers are correct when they say that the Minister’s claim that everyone in genuine need can access emergency housing is “not true”, when there are now reports of pregnant women being denied access to emergency housing?

As I’ve mentioned several times in this House, in most major towns and cities in New Zealand, there continues to be emergency housing available as a last resort for those in genuine need of a short-term stay in temporary accommodation. There are a number of people who may be declined emergency housing, but many—in fact, over half of them—are actually given some form of support.

How can he continue to deny the link between his tightening of the emergency housing entry criteria and the unprecedented increase in homelessness, when even pregnant women are now being denied access?

I think we’ve heard through question and answer in this session that there is a degree of conjecture that continues to creep in the member’s questions. We, on this side of the House, are genuinely concerned by those who may be rough sleeping, and that’s why Minister Bishop and myself have taken direct action over the last six weeks to announce an additional 300 funded places for Housing First and additional support for transitional housing, and have also given some direction around both redirections and also the exercise of discretion by Te Manatū Whakahiato Ora—the Ministry of Social Development (MSD).

Is it the case, like when MSD issued grants for homeless people to buy tents, or when women and children fleeing domestic violence were denied emergency housing, that the Minister knew there was an issue, but only acted when this was made public?

In relation to the second example that the member has given, I have asked the member to provide an appropriate authority to act and also to credentialise the allegation that he made. As at this point in time, I’ve yet to receive an authority to act or have credentialised information from that member, but we are genuinely concerned about those people who are sleeping rough in cars, in tents, or on the street, and that’s why we have taken action rather than talk about it.

Point of order, Mr Speaker. I seek leave to make a personal explanation in response to that allegation made by the Minister just now.

Leave is sought. Is there any objection to that? There appears to be none.

The Minister asked me for a contact. I provided that contact, and that contact advises me that the Minister has not been in touch.

Is there another supplementary?

No.

Question No. 10—Suze Redmayne.

E te Māngai o te Whare—

Sorry, there is no response to that, right?

The ministry has been in touch.

No response. Question No. 10—

Point of order, Mr Speaker. As a response to that point of order, the Minister had claimed in response to a question that the contact he requested was not provided. He’s subsequently said that it was provided and the ministry followed it up. Now, this cannot be allowed to occur—where the Minister makes a claim against another member that something didn’t happen and when it was pointed out that he did, he responded that, actually, that is the case.

I’ll look into that straight away after question time.

Thank you.

to the Minister of Agriculture

Why has the Government announced new science-based methane targets to support farmers’ contribution to meeting New Zealand’s obligations under the 2050 Paris Agreement?

It’s important that we provide certainty to our farmers, processors, and exporters that is fair, pragmatic, and backed by science. This is why the Government has set the methane target at a range of 14 to 24 percent below 2017 levels by 2050. We’ve accepted a range of advice to agree on a practical target that protects food production while substantially reducing New Zealand’s farm emissions. We’ve delivered a practical, fair pathway that recognises New Zealand’s agricultural efficiency, protects jobs and production, upholds our climate commitments, and is consistent with our trade agreements.

How has the Government landed on this range for the new methane targets?

Across Government, we’ve worked to get the balance right. We have taken a range of advice, including an independent expert science-based review, as reported in December last year. The new targets have New Zealand on track to meet its climate obligations by 2050. I want to be clear, though: there are no winners here, but, for the first time, there are also no losers. This is a practical approach to meet our international obligations, and it ensures we continue to produce the highest-quality, safest food anywhere in the world, we do not have to close down farms and send production overseas, there will be no tax on agricultural methane emissions, and our access to important markets around the world remains available to New Zealand’s farmers, growers, and exporters.

How is the Government supporting the primary sector to meet the new methane targets?

New technologies will deliver emissions reductions to meet international and market expectations while enabling the sector to grow. To back the new target, the Government is already investing more than $400 million with industry to speed up the development and roll-out of methane-cutting tools. Three methane-cutting tools are available now, with up to 11 rolling out by 2030—one of which will be available as early as next year. It will be up to each farmer, processor, and company to decide how best to meet these commitments, using the tools and innovations that they see fit for their business.

What feedback has he received on the Government’s announcement?

Whilst the targets are extremely challenging, farmers have welcomed them and confirmed that they will meet these challenges head-on. Our primary sector earns nearly $60 billion in export revenue each year for New Zealand. It provides more than one in 10 Kiwi jobs. You can’t solve climate change by shutting down the world’s best farmers and sending that production overseas. The Government is focused on domestic action to reduce emissions, all while growing the economy. This Government backs our farmers, and when our farmers do well, all of New Zealand does well because of their significant contribution to the economy.

to the Minister of Education

Does she stand by her statement that “This Government has been backing teachers since the day that we took office”; if so, why are teachers, principals, and support staff all striking together?

To the first part of the question, yes—as I have repeatedly told the member in question time. This Government has been backing teachers since the day we took office, backing them with a knowledge-rich curriculum, professional learning and development, and resources so that more Kiwi kids succeed at school. The evidence shows this is working, with the phonics data announced yesterday. In answer to the second part of the question, not all teachers and principals are striking.

Why won’t she front up to the strike action on 23 October?

I haven’t said that I wouldn’t, and I haven’t pre-released my diary up until that day, so the member can’t presuppose what may or may not happen on that day.

Does she stand by her statement “I am not aware of any of those conversations or any of the details that may or may not have been talked about” in relation to the strikes; if so, does she think it’s acceptable for the Minister of Education to not be across the detail?

I’m not sure that there’s any detail for me to be across in terms of this question that was asked. Specifically, the previous Minister is asking a question about something I was asked in a media scrum on Monday. It was specifically in relation to other things we might be doing in terms of legislation. The answer to that question was that I am not involved in any of those conversations if they are being had.

Has she engaged with Sir Brian Roche, who is leading the negotiation, at any point since negotiations have started, in order to get across any details?

Yes, I meet with Sir Brian Roche all the time.

How many teachers, principals, and support staff going on strike will it take before the Government finally takes them seriously?

Well, that member should know, because she has a very short memory. In 2023, there was a terrible strike action—tens of thousands of primary and area school and secondary principals and teachers participated in the historic walkout, followed by a further three days after that, and then rolling strikes for a whole term. If she wants to know how long it takes, she should ask herself that.

And we’ll now move to—[Interruption] that’s enough; thank you—question No. 12. Jenny Marcroft, when the House is silent.

to the Minister of Foreign Affairs

What reports, if any, has he seen on recent developments in the Middle East?

New Zealanders watch with cautious optimism the events of the last 24 hours in Gaza, with the ceasefire holding and the release of hostages and detainees. It has been a moment of immense relief and celebration for the 20 hostages who were released after so long in captivity, their families, and, indeed, the people of Israel. We must also remember all of those hundreds of hostages who died in the two years since Hamas brutally took them captive. Everyone who cares about peace should be welcoming this much-delayed ceasefire, which has come after so much suffering. We note that while Hamas has released 20 hostages, Israel has released around 2,000 Palestinian prisoners. New Zealand commends the leadership of the United States, Donald Trump, Egypt, Qatar, Turkey, Indonesia, and other countries in bringing this deal together, and we view the events of the last 24 hours as providing momentum for peace and constituting a significant first step towards ending this devastating conflict—and not making stupid statements, like the people on my right.

How do these developments relate to the New Zealand Government’s approach to the Middle East?

It has been 2½ weeks exactly since we outlined New Zealand’s approach on the Middle East question to the United Nations General Assembly. Subsequent events have reinforced a number of arguments that we made at that time in New York, including the first, that those countries with influence over the situation should step up and exercise leadership, and second, that the international community’s focus should be on achieving a ceasefire, the release of hostages, and the flow of humanitarian assistance in order to alleviate the calamitous situation impacting on Palestinians and Israelis alike. We are gratified that this is precisely what has happened. Yesterday’s historic achievement is a critical first step towards implementing the wider peace plan and securing a lasting peace. Already we have seen a ceasefire, the release of hostages, and the surging into Gaza of humanitarian assistance. We urge both Israel and Hamas to abide by the ceasefire and to continue to engage in good faith to secure agreement on the outstanding issues.

How do these developments impact on New Zealand’s approach to recognition of a Palestinian State?

We continue to hold the position that recognition of a Palestinian State is a matter of when, not if. We will recognise a Palestinian State when the conditions are right. A ceasefire and hostage release were, indeed, two initial steps in the right direction to creating those conditions, but further steps remain. What we need now to focus on is the achievement of a durable and sustainable peace, the disarmament and dissolution of Hamas, and the rapid development of Palestinian institutions capable of forming a legitimate and credible Government in both the West Bank and Gaza. Palestinians will not be able to develop these institutions alone, and New Zealand stands ready to play its part alongside other members of the international community.

How have recent developments in the Middle East been received here in New Zealand?

Well, the silence over the past week from some of the so-called pro-Palestinian protesters around this country has been absolutely deafening. For two years, they have ranted and raved and fumed and fulminated about the situation in Gaza. They have demanded that we do more, give more, say more, and virtue signal more, and then, over the past week, as a peace deal has been struck—as a peace deal has been struck—

But you did nothing tangible.

Adios, amigos. As a ceasefire has taken hold—

You’re taking credit for others.

Adios to war and welcome to peace. Then, over the past week, as a peace deal has been struck, as a ceasefire has taken hold, and as hostages have been released, from them not a mutter, not a murmur, not a syllable, not a sound. We have seen not a press release, not a tweet, not a parliamentary question, and the question is: why this deafening silence? Because you’re all about performative politics.

What message does he have for the Israeli and the Jewish communities in New Zealand now that the hostages have been released?

First of all, that they recognise that it was the US President and others from Muslim countries who brought this about and that anti-Americanism or any other sentiment is of no value when you’re concerned about peace, and particularly if you’re some arrogant twit that arrived here five minutes ago and doesn’t give a concern about this country’s initiative and its peace over the years. My message is this: we can understand why the past 24 hours have provided a moment of great emotion, relief, and indeed celebration. Some 20 of the hostages held cruelly by Hamas for the past two years have finally been reunited with their loved ones, as have over 2,000 prisoners, in terms of Palestine. Anybody who saw the footage of these families being reunited should welcome and applaud that. At the same time as we have said that, we should also not forget all those hostages who lost their lives over the past two years in the custody of Hamas.

That concludes oral questions. Members will leave the House for other business quietly and without conversation on the way. “Without conversation on the way” means “Don’t talk to anyone; just leave.”

I move, That the sitting of the House today be extended into tomorrow morning for consideration in committee of the Marine and Coastal Area (Takutai Moana) (Customary Marine Title) Amendment Bill and the Education and Training (Vocational Education and Training System) Amendment Bill; the second reading of the Education and Training Amendment Bill (No 2) and the Crimes (Countering Foreign Interference) Amendment Bill; and the consideration in committee of the Building and Construction (Small Stand-alone Dwellings) Amendment Bill.

Members, I’ve determined that the subject of this vote will be treated as a conscience issue. In this case, I know there are members who want a personal vote, and I’m prepared to accept one. This is the process we are going to follow: I’m going to put the question; I’m going to announce the result; at that stage, any member can ask for a personal vote.

The question is that the motion be agreed to.

A personal vote was called for on the question, That the Broadcasting (Repeal of Advertising Restrictions) Amendment Bill be now read a third time.

Ayes 93

AndersenFleming (P)Meager (P)Sosene (P)Anderson (P)GoldsmithMitchell (P)Stanford (P)BatesGrigg (P)MooneyStephensonBaylyHalbert (P)NakhleTangaere-Manuel (P)BelichHamiltonNimon (P)Tinetti (P)BennettHenare (P)O’Connor D (P)Twyford (P)BidoisHipkins (P)O’Connor G (P)UffindellBishopHoggardParmarUpstonBoyack (P)Jackson (P)Penk (P)Utikere (P)BrewerKirkpatrickPotaka (P)van de MolenBrooking (P)Kuriger (P)Prime (P)van Velden (P)Brown (P)Leary (P)Pugh (P)Verrall (P)BrownleeLee (P)Radhakrishnan (P)Walters (P)Butterick (P)Lu (P)RedmayneWatts (P)Cameron (P)Luxon (P)Reti (P)Webb (P)CampbellLuxton C (P)Rurawhe (P)WeddCheung (P)Luxton J (P)Russell (P)WeeninkChhour (P)MacLeodRutherford (P)White (P)CollinsMcAnulty (P)Salesa (P)Williams (P)Costley (P)McCallumSepuloni (P)Willis N (P)Court (P)McClaySeymour (P)Woods (P)Davidson R (P)McClureSimmondsDoocey (P)McKee (P)SimpsonEdmonds (P)McLellan (P)Smith

Noes 29

AbelGenter (P)Menéndez March (P)Wade-Brown (P)ArbuckleHernandez (P)Ngarewa-PackerWaititi (P)Carter (P)JonesPattersonWillis S (P)CostelloKaiparaPaul (P)WilsonDavidson Ma (P)Kapa-Kingi (P)Peters (P)Xu-Nan (P)Davidson Mi (P)LyndonPham (P)FerrisMaipi-ClarkeSwarbrick (P)FosterMarcroftTuiono (P)

Point of order, Mr Speaker.

Yeah?

I just want to seek clarification. It is very clear in the Standing Orders that a vote is not allowed to be interrupted. We have experienced that in this House this year, with four people being sent to the Privileges Committee. The vote was interrupted on this in the first instance, and I want your clarification on why that was.

Good. I will give it to you tomorrow. I don’t have it with me at the moment to give to you anything that is lengthy and instructive on the way in which we have progressed today. All I know is that I asked the clerks—who, of course, work on the basis of the history of the whole House— “How do we progress, given the circumstances of last Thursday in here?”

Members, the House is in committee on the Marine and Coastal Area (Takutai Moana) (Customary Marine Title) Amendment Bill and the Education and Training (Vocational Education and Training System) Amendment Bill.

We first come to the Marine and Coastal Area (Takutai Moana) (Customary Marine Title) Amendment Bill. We begin with the debate on the preamble. The question is that the preamble stand part.

I just would be interested in the Minister’s comments—now, there are actually two questions here, and it might be useful for the Chair to clarify, because we have a preamble to the amendment bill and then we have an amended preamble for the main bill. Could the Chair clarify which of those preambles we’re discussing?

I will as soon as I know. It’s just the bill—it’s the preamble to the bill.

To this bill?

Yes.

Ah, OK. That’s excellent to know. In that case, I would be interested in the Minister’s comments on this, and, in particular, I would have thought it quite important that the preamble—which is, essentially, a recitation of the factual background that gave rise to the bill.

Firstly, it’s quite unusual for bills that are not themselves Treaty settlement bills to have preambles, and I’d be interested to know why he’s doing that. Also, in terms of the factual accuracy, I have read, or attempted to read, some of the decisions that relate to this bill, and I would have thought that an accurate reflection of the Supreme Court case in here would actually recognise that all of the concerns that the Court of Appeal case gave rise to had in fact been addressed. I think it’s recital (5), where it notes, “… the Supreme Court decided the remaining issues under the appeals before it, and applied its interpretation to those provisions:”. It really is inadequate because it then just says, “Amendments … are still needed”.

The fact of the matter is that this bill was halfway through the House—it was a pre-emptive strike, if you like. If the Government had, in fact, not brought this bill, I don’t think it would still feel committed, because what we now have is a Government that’s stuck its oar in, if you like—or its paddle, I suppose—and is still committed to it, whereas, in fact, the concerns in the Court of Appeal were entirely ameliorated by the Supreme Court case. Now, what we have is a further tightening, which is entirely not necessary. To say, as I think it does, that the decision departed from the original intention of Parliament was probably untrue at the start, but it’s certainly untrue now.

Those are my two questions: firstly, why do we have a preamble in this bill, because it’s not a Treaty settlement bill; and, secondly, why does the preamble not accurately reflect the decision of the Supreme Court?

Thank you, Madam Chair. That clarification is well-received. Given that this is—as my colleague described—the first time I’ve seen a preamble used in a way such as it has been in this particular bill, my questions follow on from the Hon Dr Duncan Webb with respect to the difference that the Minister recognises in the court decision and what he is, effectively, trying to change here. It’s easy to say that it wasn’t the intention, but words matter in this, and the preamble is the start of what we would consider, in the Māori world, the wairua to the rest of the bill. What that means is it sets the tone for what we will, no doubt, prosecute as the bill continues in the committee of the whole House stage.

We would really appreciate words from the Minister that can offer some clarity on those particular matters. The preamble, for its part here, like I say, sets the tone for the rest of it.

Now, I appreciate that in the Amendment Paper, which is the one that I’m looking at, here in Part 1, at clause 6, tries to explain, if you will, why it’s doing this and why it’s making these changes. I’m wondering—and this is my first question to the Minister—if he can provide words on the preamble and, secondly, if he can actually be quite clear about whether or not this preamble will make changes that will continue to impact the rest of the bill that he has on the Table in the Chamber. Then the next one is about whether he can give an example of where, in previous cases, a marine and coastal area or a customary title has been recognised and what makes this particular one different to others that have been recognised in the past.

That will be really helpful as we continue to go through this particular bill. I want to come back just to that point about how the preamble sets the tone for the rest of the bill, which is why we would really appreciate words from the Minister that set and clarify the matters that we have in the preamble here.

Thank you, members. The bill has a preamble to explain the background. It’s not that common that Parliament brings in legislation to overturn Court of Appeal rulings, as was the case in the original bill, and also Supreme Court rulings, as is the case with this bill.

I’ll be bringing in Amendment Paper 380, which has an amended preamble, and it’s required because the Supreme Court and the High Court have issued relevant judgments since the original bill was introduced, and so they’ve been added into Part 1, clause 4 and the preamble and different parts of the legislation, and also to give effect to Cabinet’s decision that the bill won’t apply to Ngā Rohe Moana o Ngā Hapū o Ngāti Porou. The Amendment Paper addresses an issue that emerged in the course of drafting around the second limb, which I will come to later.

In essence, just to remind people tuning into this debate, why are we doing this? Well, our starting proposition is that all New Zealanders, of course, have an interest in what happens in the coastal and marine space, around the maritime space and the coastal regions of this country. All New Zealanders have an interest in that, obviously. At the same time, the legislation that was introduced in 2011 did enable Māori claimants to seek recognition of customary marine title. When this was done, this was an arrangement between the National Party of the time and the Māori Party, and it was an agreement in response to changing the previous Labour Government’s Foreshore and Seabed Act, which claimed title for the Crown, with the exception of areas where there were landholdings abutting that piece of the land.

It was all part of an arrangement, and the 2011 Act set a very high threshold, and I quote Christopher Finlayson in regard to that “very high threshold.” Why was it a high threshold? Because customary marine title includes valuable rights and specifically, effectively, veto rights over resource consents for a range of activities—not all activities. Important infrastructure is excluded, but there are a bunch of activities that could go on in the marine space where holders of customary marine title would have the ability to grant or not grant resource consents. It also included mineral rights and a number of other things. These are valuable rights.

Now, obviously, enabling one group of New Zealanders who had received customary marine title to grant resource consents is a very significant deviation from normal expectations of New Zealanders living in this country—in a democratic, modern democracy—to have an equal say in decisions affecting their lives and their environment and what goes on around them. That is why Parliament set a high threshold, and that high threshold was as outlined in section 58 of the Act, which had two legs, which were, according to tikanga, an understanding of that and then “exclusively used and occupied [the area] … to the present day without substantial interruption;”.

What happened was, of course, that many, many years after the bill was passed, it eventually made its way to court, and the Court of Appeal came up with a judgment that very much diluted the impact of the second leg, and that’s why this bill was introduced. The Supreme Court agreed with the Government that the Court of Appeal had got that wrong and indicated their own expression of what section 58 meant. It is still the view of the Government that it deviates from Parliament’s intention, because we’ve seen a couple of decisions that have been made since the Supreme Court decision and the Supreme Court test which have seen very large proportions of coastlines in the Wairarapa and Kāpiti that have been given customary marine title. That is why this legislation is being carried on and why there is an amendment to recognise that we’re not dealing with a Court of Appeal decision but a Supreme Court decision.

Thank you, Madam Chair. There was just one point there that the Minister raised—I think, seeing as we’re talking about the kind of genealogy of this bill. The Minister talked about resource consents, and he suggested that—and I may be putting words in his mouth—the ability of hapū and iwi to intervene and to say that resource consent shouldn’t be granted because it interfered with their customary rights was not something which New Zealanders would expect in an equal society.

The Minister could clarify in terms of where this bill comes from. Of course, the Foreshore and Seabed Act didn’t go down well. It wasn’t Labour’s finest hour. This bill sought to address that. In doing so, it recognised that customary rights of Māori are rights in respect of coastal and marine areas that have existed since at least 1840. That is to say that they are property rights. I just want the Minister to clarify how he says that a resource consent for an activity which would interfere with those coastal rights is not something that is appropriate in a society that deals with all property rights and property owners equally.

If a hapū and iwi have a customary right to exercise control in respect of a particular activity over a coastal area, these are rights which are familiar to jurisdictions around the world. We have fishing rights to rivers for trout in the UK that have been recognised since medieval times, and you can’t dam the river with the resource consent or their equivalent there. Why is it that the Minister sees the property rights of hapū and iwi in respect of coastal and marine areas in some way as less than other property rights that people who are applying for a resource consent ought to have, such that they should actually be extinguished by this legislation and, in his own words, “The threshold for establishing those rights”—not establishing them, because they already exist, but recognising them—“should be extremely high.”? Could he just explain to me how it is that customary marine title rights are some kind of second-tier property rights compared with the rights of other New Zealanders?

I explained—and it has been very well traversed in this House—that the bill was seeking to balance two things: on the one hand, the ability to assert customary marine rights and for those to be acknowledged through the legislation, with the accompanying abilities to, effectively, grant or not grant resource consents in that particular area; and the natural expectations of all New Zealanders living in a modern democracy to have an equal say in what goes on in their community.

It was a balancing act that was established in the bill, and the way that the Parliament of the time sought to achieve that balance was to enable the appeal and granting—or “recognition” is the right word—of customary marine rights, but setting a high threshold for that to be established. That was the goal, and that’s how it was always explained. You had to achieve two legs—the first being to recognise it through tikanga and the second requiring applicants to have held a specified area and “exclusively used and occupied the area from 1840 to the present day without substantial interruption”. The common-sense reading of that, for most New Zealanders when they look at that—“exclusively used and occupied the area from 1840 to the present day without substantial interruption”—was the threshold that Parliament set.

Now, the member is quite within his rights to say that “That’s not the right threshold.”, “It should be a different threshold.”, and “There should be no threshold.”. That’s fine. That’s not what the Parliament passed in 2011, and so there have been different interpretations of what that threshold should be, and that’s what we’re seeking to establish clearly with this amendment bill.

Thank you very much, Madam Chair. Speaking to that very last point, as a starting point—but I would like to work back to other points the Minister has made recently—in the preamble, the entire premise of this legislation is to restore the intention of Parliament. That intention, the Minister contends, has been abrogated from in the interpretation of the Appeal Court finding. Now, to the question of what Parliament intended in the original legislation, in 2011, what is the actual basis of independent analysis which shows that Parliament’s intent in 2011 is not fulfilled by the determinations of the Supreme Court in its 2 December 2024 finding and its more recent finding this year? The Parliament of the day—of 2011, I’m talking about now—was very clear about what it was trying to achieve. The very thing that the Minister just described is achieving the customary rights of iwi Māori in concert with other rights, like fishing and recreational activities, public use, the rights of other users of the space, that could exist in concert with customary marine title (CMT).

To the specific point of his assertion that the intention of Parliament has been departed from, the Minister of the day, Christopher Finlayson, who the Minister also mentioned in his opening remarks, said, “These amendments”—meaning the amendments that the Minister has before us—“do not restore the original intention of Parliament. They undermine them. Let there be no doubt about that at all.” I invite the Minister to actually express the basis for his primary proposition, which is that Parliament’s intention has not been met.

Also, as to the extent to which we are dealing with a concert of rights, there’s a specific comment in the supplementary analysis: “It’s always been clear, and has never been contested, that the purpose of the 2011 Act and the findings of both the Appeal Court and the subsequent findings of the Supreme Court never questioned that public access, fishing, and other recreational activities in a customary marine title area are not effective, except for a limited exception for the protection of wāhi tapu areas within a CMT. Significant third-party rights, including in relation to existing infrastructure, are also maintained, and the resource permission right has a number of other carve-outs—for example, for emergency activities and scientific research. New public interest infrastructure is able to be deemed exempt from the resource management permission right, following a process set out in Schedule 2 of the Takutai Moana Act, which includes engagement with the CMT holder and culminates in a final decision being made by the Minister for Land Information”.

The suggestion of the Minister that there is any question as to the purpose of the bill—being to ensure it achieves customary marine title for iwi but also maintains public access—is not evidenced anywhere. I would also like to point out the advice that the Minister received in this regard—again, in the supplementary analysis paper—was that Te Arawhiti’s—what was then called Te Arawhiti—initial preference was in retaining the status quo and waiting for the Supreme Court judgment. That’s in page 14 of the supplementary report. Te Arawhiti’s view was that consideration of the appeals by the Supreme Court could have resolved the issue, and they advised the Minister against these amendments being made until such a time as the Supreme Court finding came in.

On page 15 of that analysis, point 44, it says, “If the Supreme Court ruled in favour of the Crown, it could mean the additional time and resource on progressing amendments would not be required.”, and the Supreme Court did rule in favour of the Crown. Given that fact—further to my core question—how is it that where the Court has clarified, in a magisterial decision of some substance and intelligence in December 2024, very eloquently the intention of Parliament and found in many interpretations a middle-ground between the finding of the Appeal Court and the desire of the appellant, in a magisterial decision that clarifies the intention of Parliament 2011, the Minister still comes back to this House with these intense amendments to supposedly restore that intention?

I will make a final analogy before seeking a response from the Minister. It is as if the Supreme Court banged the nail into the wall upon which we can hang the picture of Māori customary rights as a principle—a core principle—that upholds Te Tiriti o Waitangi. They clarified what the intention was from 2011, and, through this amendment, the Minister is coming along with a sledgehammer and smashing that nail into the wall, destroying the actual intention of 2011, which was clarified by the Supreme Court finding.

Thank you, Madam Chair. I want to pick up on some of what the Minister for Treaty of Waitangi Negotiations has been saying about the intention of Parliament. That goes to the heart of a number of amendments that are in my name, and I hope to seek the support of Parliament when we come to this voting, because it is unusual that the intention of a previous Parliament would be clarified in this way in law. It raises a number of unusual public law questions around how future parliaments might reinterpret the intent of previous parliaments.

Why that’s important is that it is one thing, and it’s perfectly fine and perfectly normal, for Governments of the day to have a policy intention, and it is also normal for Governments of the day to have a policy intention that is not in line with court proceedings that have happened or that are even afoot, but it is another thing for Governments of the day to look back and to say that a previous Parliament had a particular intention that has not been interpreted correctly in the law. Not only has a Minister of the Crown advanced that case in the media and in the public realm, but they are also asking this House to pass it in law—that there would be a preamble to this Act, which is an unusual use of a preamble. That preamble would say that, essentially, this House has a disagreement with the interpretation of the law by our court system and that not only are we going to change the way that they would reinterpret future cases but also that there would be a retrospective element of rehearing cases that have already passed.

I think it is for the Minister to establish clearly his case about why, in 2011, what was passed was his version of how this law should be interpreted and not in fact what the Minister at the time, or the official documentation of the day, said it was. I’ll read to him this quote, which I hope to elicit a response from him on. It’s from September 2010, when the Minister in charge of that legislation explained his policy intent, not his intent of how this would be interpreted in the courts—and that’s relevant too. He said of claimants, “They will have to prove: that the area for which they are seeking title is held in accordance with tikanga,”—yes, we agree that—“and that the group seeking title has had exclusive use in occupation of the area, and that the exclusive use in occupation has been held from 1840 until the present without substantial interruption.”—there is no debate about that. But then he clarifies: “These tests are based on overseas common law from similar countries (Canada) but reflect New Zealand experience better than overseas case law by incorporating tikanga. Customary marine title is not an exclusionary right and includes the public rights of access, fishing, navigation and existing uses.”

What’s important there is if we are to pass as a Parliament a pronouncement about how this law was meant to be taken into account, then that Canadian case law is relevant. The Canadian case law that the Minister was talking about there were cases like Calder v Attorney-General of British Columbia, which was decided in 1973 and which sets out a framework that is used all around the world in common law jurisdictions to determine both the extinguishment of title by radical title of the Crown and customary rights and interests that exist in land after that has occurred, and also Guerin v the Queen in 1984. It’s that case law—that was Canadian case law—which was ultimately being considered at the time in 2010 and then was intended to be used in New Zealand case law to further develop that. There had been a case that might have been on the Minister’s mind and that was moving through the Canadian courts at the time. It was called the Haida Nation v British Columbia (Minister of Forests) case. It was about the procedural rights and interests of indigenous peoples and was used as a framework to establish the procedural rights that occur here, particularly around how claimants might be funded, how claimants might have access to the courts, and how claimants might expect their evidence and their information to be treated as they went through.

Those are important cases because they inform what the Government of the day was thinking. It would be useful if the Minister could point to any case law around the world that he thinks was what the Minister at the time was using to inform the law that Parliament passed, that there was support for at the time, and that then our courts have interpreted and have made part of our body of case law. If those weren’t the cases that were intended to be used, then what were they? What other country uses the kind of approach that he is advancing here, and why were our courts expected to know that? It’s fine for him to have a new policy direction, but why would we pass in legislation that the courts have made the wrong call when, in 2011, that certainly seems to have been the intent.

Madam Chair.

Honourable Dr—the Hon Ginny Andersen, sorry.

Thank you!

I was expecting someone else to stand up who didn’t, and I just got a bit brain faulty for a minute, sorry.

Promotion. I’ll be a doctor. Thank you very much, Madam Chair. I am going to go to the preamble, but, before I do that, I would just like to highlight that back in 2010, on 6 September, there was a press release from the then Minister for Treaty of Waitangi Negotiations, the Hon Christopher Finlayson, and I think it’s important to understand the Minister’s view of the policy intent under a National Government at that point of time. He states, in his press release, “One of the key objectives of the legislation is to give Māori the opportunity to argue their case for customary marine title before the courts or in negotiation with the Government. For that reason, it is inappropriate to second-guess what a court or negotiations process might decide.” He also highlights, in that same press release, that “These tests are based”—as noted by other speakers—“on overseas common law from similar countries ([such as] Canada) but reflect New Zealand’s experience better than overseas case law by incorporating tikanga. Customary marine title is not an exclusionary right and includes the … right [also] of [other accesses],”, and I think that’s been one of the misunderstandings.

My question to the Minister, in relation to the preamble that is currently put out in the bill that we have on the Clerk’s Table before us, is: given the lack of consultation in this whole process, has he considered including in the preamble some of the findings from the Waitangi Tribunal inquiry? I think if we’re accurate about reflecting on the historical record and reflecting on what has occurred, in the preamble that is currently laid out in the bill, I would like the Minister to consider whether he would like to include the Tribunal’s finding that the Crown has breached the principle of tino rangatiratanga by exercising kāwanatanga over Māori rights and interests in takutai moana without providing any evidence for one of its key justifications, namely that the public’s rights and interests require further protection beyond what is already provided in the Act and that the Crown also failed to inform itself of Māori interests. I think that what is particularly important, and I’m sure this will be traversed again, is the lack of consultation with those people who are directly impacted by this legislative change. However, what smarts even more and rubs salt in the wound is the fact that there was consultation with commercial fishing interests, which have already got statutory protections.

Prior to finalising the proposed amendments, while failing to consult with Māori, the Tribunal notes that that is a further breach of the principle of good government. Now, as the Minister responsible, I think it’s only right and fair for those people impacted and also for future New Zealanders to understand what has actually gone on right here. It’s well and good that we have National Ministers turning up to celebrate 50 years of the Waitangi Tribunal, but, surely, if their research and their findings are valued enough, they should be reflected in the preamble of this bill. I think it’s also important to note that they found that the Crown breached its principles of active protection, as well as good government, by proposing those amendments. As a result, applicants will be forced to have their cases reheard, burdening them further, financially and emotionally, as well.

I would be interested to know if the Minister, who is a student of history himself and has a role in recording the history, will entertain the fact that we could record those findings from the Waitangi Tribunal in this preamble.

Of course, we can debate this all day. Bringing up different quotes from the Hon Chris Finlayson, we’ll all be able to find one that suits our argument. I heard the member’s quote from Mr Finlayson, and I could give a quote from Q+A on 20 June 2010, when he said, “In the round, based on the sort of information I have, based on my talking around the place, I’d say about 10 percent of the coastline would be under customary marine title (CMT). I wouldn’t want to be specific about which bay is in and which bay is out. We’ll have to issue these things.” Further on, he says, “We’re looking at the upper East Coast, eastern Bay of Plenty, way up north, that sort of place.”

Then, I could refer to Mr Finlayson in this House at question time answering a question from David Parker on 16 June 2010, where Parker said, “How much more of the foreshore and seabed does the Attorney-General expect will be subject to customary titles as a consequence of the change to the threshold test that currently applies to territorial customary rights—that change being to no longer require continuous ownership of contiguous land,”—which is what the old test was, under Labour—“while still requiring continuous exclusive control of the foreshore and seabed concerned?” The answer from Mr Finlayson was, “that is a very good question, and [it is] an important question. I believe, in answer to the member, that we are not talking about very much, at all.”

We can all find appropriate quotes, but if we look at the speeches from both Ministers at the time when this was introduced, they were talking about emphasising that the Act was intended to recognise CMT in specific parts of the coastline. What we’ve seen in recent cases, based on the Supreme Court test, is entire coastlines being granted CMT. That is why we believe this legislation is required: to restore the parliamentary intent, which was a high threshold, and specific parts of the coastline, not the entire coastline.

Thanks, Madam Chair. I’ve been wanting to really unpack the perspectives of Minister Finlayson, because, last week, he was at the Waitangi Tribunal conference speaking to these very issues, along with Geoffrey Palmer, on the importance of the Waitangi Tribunal providing safeguards for us as te iwi Māori and the way in which legislation impacts upon Te Tiriti and tangata whenua. It would be good to know what is the current status of the whakaaro of Minister Finlayson instead of quoting kōrero from the past.

Considering the deep impact where the decisions of this legislation will ripple out to te iwi Māori, I’m keen to understand from the Minister, in developing this amendment, did the Minister speak to Whakatōhea? Did the Minister speak to the tribes of Wairarapa? Did the Minister speak to the tribes of Aotea Harbour? Who specifically did the Minister speak to when it came to proposing that these amendments were about bringing back balance and the original intent, because as tangata whenua—

Can I just bring the member back to the preamble. It’s not that these questions are not relevant, but we just need to focus on the preamble.

Whakatōhea is in the preamble, and it shows the intention. These are directly named.

It was just getting a bit broad, so I was just trying to bring it back.

These are directly named claimant groups within the preamble who are going to be specifically impacted. When we go back to the original intent of the legislation, it’s really clear that the takutai moana Act was to acknowledge Te Tiriti o Waitangi, that it was to provide a space for tangata whenua to exercise their customary interest in the common marine and coastal areas, that the mana tuku iho [inherited authority] of tangata whenua in the marine and coastal areas of hapū, iwi, and whānau as tangata whenua could be recognised, but that the takutai moana Act was to “establish a durable scheme to ensure the protection of legitimate interests of all New Zealanders in the marine and coastal area”.

In considering that original intent, why can’t tangata whenua retain their property rights? Why is it that the balance always falls on the side of everyone else, but tangata whenua fails to get recognition in terms of the ōritetanga [equality] guaranteed through Te Tiriti o Waitangi?

Article 3 provides for us the equality to be recognised in Crown law, so how come tangata whenua cannot hold customary rights, and which directly impacted, named tangata whenua in the preamble did the Minister speak to in considering these amendments?

Thank you, Madam Chair. It is complex indeed. My question to the Minister is around Part 1, clause 4(10) and the amendments to those—

We’re still on the preamble.

Yeah, which includes the preamble, or have I got that wrong?

No, we’re not into Part 1, we’re still—

Yeah, I’m in the Amendment Paper.

Oh, sorry, yeah, there’s the Amendment Paper. Thank you for clarifying. Yes, carry on.

So, if I may, in Part 1, down into clause 4, which is the “Preamble amended”, subclause (10)—

Found it. Thank you.

Yep, and it goes on and says, “Amendments to those provisions are still needed, however, to ensure that they have the effect, and maintain the balance, that Parliament intends:”. Then it goes, in subclause (11), “In particular, amendments to those provisions are still needed to (a) define more strictly the requirements for exclusive use and occupation:”. The word “occupation” is going to come up many, many times during this debate. It’s the level by which the Minister, in my view, has lifted the requirements for customary title to be proven in the court, so the word “occupation” will come up regularly.

Under 11(b), it does say, “require inferences by a decision maker (including the Court) to be based on evidence of physical use and occupation:”. My question to the Minister is: does that include all courts? Could that extend itself to other judiciary arms such as the Waitangi Tribunal, who are well-acknowledged in the House as storekeepers of a heck of a lot of evidence with respect to these matters that we’re debating here in the Chamber?

With respect to its application to other pieces of legislation, my question to the Minister on this part is: in recognising customary take of seafood and the issuing of permits as such, does that come under the customary title and occupation piece that the Minister is proposing here? Those particular rights have been given for some time now, and I just want to check—with respect to the way that the Minister has worded Part 1, clause 4(10) and (11)—whether or not that would impact on those decisions with respect to customary seafood take, with respect to the way the Minister views physical use and occupation, which is in the particular clause that I’m referring to there.

The other part is clause 11(c)(i), which says, “holds the specified area in accordance with tikanga;”, and I’m interested in the ongoing debate with respect to the courts and their view on tikanga, and whether or not it is the intention of this Minister to continue to go through and reference those particular cases that have been brought forward to the courts and, of course, the rulings that the courts have made with respect to tikanga and its place in law, and whether or not we’ll be here to change this—not just on this bill but on many other bills.

Thank you, Madam Chair. To an earlier point the Minister made about the problem of customary marine title interfering with other users’ rights—and acknowledging the well-made point of my colleague Hūhana Lyndon that it seems that, frequently, it is the rights of non-Māori that are preferenced time and again over the rights of iwi Māori: for a Minister that purports to believe in property rights, I wonder that he can’t recognise the first property rights of this country, customary marine title, with a greater confidence and certainty.

But who is interfering with whose rights? Whose specific rights is mischief being caused to by the current, most recent interpretation of the Marine and Coastal Area (Takutai Moana) Act, i.e., that of the Supreme Court? Who is the Minister talking about when you refer to “interfering with rights”? It’s a very specific question, and a specific answer to whose specific rights are being interfered with would be appreciated.

Thank you very much. My question to the Minister for Treaty of Waitangi Negotiations is in relation to new recital (2) of the preamble, inserted by Amendment Paper 380, which reads, “The Court of Appeal’s interpretation of those provisions changed the effect that Parliament intends them to have, and materially reduced those requirements (for example, that an applicant group must prove exclusive use and occupation of a specified area from the start to the end of the applicable period without substantial interruption):”.

When the Minister is including, in the preamble, statements that when you are, basically, presuming to view the intent of a previous Parliament, I would like to know whether there were any other factors that may have influenced the Minister’s decision to legislate over the top of the findings of our courts. In particular, I would like to know whether with the cost pressures of claimant funding proceeding through the court process, which, in the year prior to this legislation being brought to the House and enacted, there was a substantial blowout—according to the scrutiny week that I sat on, as part of that—in terms of the court costs that the Crown was required to pay for.

I would like to know from the Minister: are there other factors, such as he didn’t want to have to pay for the funding for legal representation through the courts for claimants, because that was causing the Crown’s books some concern, and he had quite a bit of pressure to bring things into line and there was no other foreseeable way to stop those costs? I put it to him as to whether one of the factors that this legislation introduced was to simply reduce the ongoing costs to his budget in relation to enabling representation within the courts for these claims to be heard out in a due process—I’d be interested to know: if that is not the case, then are there any other factors that have caused this legislation to come in the way that it did?

I’ll just reply to a few questions. One member asked which applicants we’ve met with in the development of this amendment and legislation. I have met with a number, including Ngāti Raukawa ki te Tonga, Te Whānau-a-Apanui, Ngāti Kauwhata, and Ngati Porou. In terms of whose rights we are talking about who would be potentially interfered with by the resource consent right, we’re talking about somebody who wanted to start new aquaculture, for example, somebody wanting to put in a jetty on their property, or somebody wanting to renew a consent for a jetty that they’ve had for generations. They might be some examples.

Tēnā koe e te Tiamana. Tēnā koe e te Minita, i tō kawe i ēnei mahi āu ki mua ki te aroaro o te motu, me te iwi Māori.

[Thank you, Madam Chair. Thank you, Minister, for bringing these works of yours before the nation and the Māori people.]

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. 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 Māori 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. The two sets of rights being argued are the Māori customary right—yep, I’ve just defined that, how it came about, and 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. There are 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 in Māori by Te Tiriti o Waitangi are still there and the landowner doesn’t own the land right down to the water and if it is indeed just the Queen’s Chain we’re talking about, then there are a few things to be considered. Number one is that 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?

I wanted to speak again to the preamble in the Amendment Paper, whereby we have recitals (6) and (7), and recital (7)(b) in particular. I want to understand from the Minister, the Hon Paul Goldsmith: these amendments are being provided to ensure that they have the effect and maintain the balance that Parliament intends, and then in recital (7)(b) it requires inferences by a decision maker, which could be the court also, to be based on physical use and occupation.

Thinking about the implications for decision makers, including the courts, to be based on evidence of physical use and occupation now and into the future, who is going to be financing the implementation of this? Who is going to be resourcing—whether it be the court who is going to resource the claimants. Who’s going to resource the machinery of Government also, in the way in which claimants are going to have to provide evidence of physical use and occupation? Who is also going to provide the resource to then rebut the tangata whenua evidence?

I’m concerned in terms of the resources. We’ve already been told there are cuts everywhere—cut, cut, cut—and yet we see this Government bringing legislation in, just in the preamble itself, changing the nature by which we have to prove our connection and provide evidence of physical use and occupation, which is inconsistent with the test based on tikanga. It would be great to hear from the Minister how we’re going to fund the system. How are we going to fund the claimants? How is the court, how is Te Arawhiti, or Te Tari Whakatau, going to fund this new machinery coming through in amendment legislation, when we were already told, as claimants, starved already of a dollar, to prove our connection to a place?

If we’re revisiting, can the retrospective nature of the decisions now impacting some seven cases, including Whakatōhea, which is mentioned in the preamble—who is going to pay for it? That’s going back to the taxpayer, and that’s already a burden that has been heavy enough. How much is it going to cost? Have the officials done the work in terms of implementing this amendment legislation, knowing that the decision maker now has to show and prove the physical use and occupation, the evidence must be put on the table?

Thank you, Madam Chair. Recital (7)(b) in the preamble in the Minister’s proposed amendment is an important one, and I hope we can seek some clarity from the Minister over this new part that he proposes to insert around physical use. This is an unusual way to write the law, and it’s unclear. What the Minister is asking for is for this Parliament to say that it intends that “(7) In particular, amendments to those provisions are still needed to— … (b) require inferences by a decision maker … to be based on evidence of physical use”. This isn’t law that says that, for a decision to be compliant with the law, it will take into account physical use. This is a way of framing it that says that “My intention is for you, the court, when you make a decision, to consider evidence and take that evidence into account, and that evidence must be also inclusive of, or touch upon, physical use.”

The problem there is that there is no indication of what weight this gives; it’s not set out, as these clauses would usually be drafted, for decision makers who then need to prove that their decisions have been made reasonably and in compliance with the law. This is about intentions, inferences, and the type of evidence presented to a decision maker. This makes gobbledygook of an already confusing and complex law, which currently has the benefit of moving through the New Zealand court system with the benefit of Canadian case law prior to 2011, which will now go out the door. It leaves the courts in the position—or any decision maker, in fact, when they’re considering customary marine title—where, at some point, they need to hear evidence about physical use, but there’s no indication of whether that should be the only evidence, whether that should be the most heavily weighted evidence, or whether it must be one of a hundred things that they heard evidence on.

This goes to the problem here, which is that, essentially, this is populist law being drafted in a way that is incredibly unusual and that is meant for judges to interpret. This is about telling a voter base that there must be evidence of physical use. You can imagine the speeches come election time. They will say, “Oh, this isn’t about the taniwha out in your bay. This is about whether there was use of taunga waka”—of tying up the waka—“and isn’t that fair, and isn’t that reasonable?” The problem with that is that that’s not what they have drafted in the law. They have just said, “It is my intention in Parliament to direct judges to hear evidence on that taunga waka, on that tying up of the waka.”

How do we interpret this? In Te Whakatōhea’s case, that harbour is the food basket of the people of Te Whakatōhea, who were moved from their lands. Without access to those cockles and regular use three times a day, my father, who was given to his grandparents, who were the kaitiaki of Te Kooti’s place, where he was injured on the shores of the Ōhiwa harbour—they would not have been able to feed him. At that time, he was a six-month-old infant, and he could eat only the cockles from the bay, because he did not have his mother being able to breastfeed him. That would be physical use.

How is that physical use meant to apply to the regular use of the bay? It applies because these people were kaitiaki of the bay, because they looked after that customary fish take and, without it, their infant, given to his grandparents, would not have lived.

That is the established evidence. That is the relevant thing for this test. Having to prove physical use for somewhere like Ruapuke Island, where customary marine title has been granted to the whānau of Ruapuke but where the sea between it and Rakiura or Invercargill might be used infrequently, is difficult and nonsensical, especially when you haven’t set out how that is intended to work for a court. How do you take into account physical use? What is physical use in this scenario?

It makes sense only if you either set it out in the legislation and say what you mean—which is, “I mean, as a Minister, that this will be hard for you, and hapū will not be able to establish this evidence.”—or say that it is for judges to take into account this part of the evidence but that that evidence will not be a conclusionary part of their reasonable decision-making. This is unfair. It is gobbledygook. It is getting around a problem the Government has with a populist commitment that doesn’t make sense in law.

Thank you very much, Madam Speaker. I would like to go to the proposed recital (7) in the preamble. My colleague has just covered (7)(a) and (b). I’d like to take a look at paragraph (c). Under that, it reads: “(7) In particular, amendments to those provisions are still needed to— … (c) clarify that, in the case of an application for, or to vary or cancel, a recognition order, the applicant group must prove that the group both—(i) holds the specified area in accordance with tikanga; and (ii) had exclusive use and occupation of the specified area from the start to the end of the applicable period without substantial interruption:”

My question to the Minister is: does colonisation come into interruption? Does he consider that the change of the law and the removal of people from their land constitutes interruption as per recital (7)(c)(ii) of the preamble? Further to that point, in terms of the process in which he arrived at the words that have ended up in this preamble, I would like to understand a little bit more about the process and the advice that he did get. When looking through the regulatory impact statement, which we now have the ability to do, we read things such as in paragraph 145, which is under the title “What option is likely to best address the problem, meet the policy objectives, and deliver the highest net benefits?” and which reads: “Given the Minister’s direction that the status quo is not a feasible option, Te Arawhiti advised that out of the remaining options, Option A applied prospectively would be a direct and effective way to address the problem and achieve the policy objective. It posed the least legal, Tiriti, and relationship risk by confining the amendment to a targeted alteration of key errors in the Court of Appeal’s interpretation of section 58 of the Act and thereby delivers the highest net benefit.”

My question to the Minister is: were the words that are in this preamble now and that have some really serious concerns, including the word “physical” and how you are determining occupation, predetermined because the Minister simply directed officials to choose which option best suited the Government’s desire for an outcome and best suited the minimisation of costs to the Crown?

I just wanted to respond to the member Tākuta Ferris’s—I thought—quite interesting speech, where we’re really just sort of grappling with conflicting, or balancing, two separate rights. One is the customary marine rights, and the other is the expectations of all New Zealanders to have a say in what goes on in their neighbourhoods and in their coastal areas. That’s why the legislation was passed with the support of the National Party and the Māori Party at the time and was set to strike a balance there with what was described at the time as a high threshold. Now we’re all debating about where that threshold should be, and three different courts have had three different interpretations of that threshold. That’s why this Parliament is considering this Amendment Paper, which sets for Parliament to assert what it believes the threshold should be.

Mr Chair.

Are you looking for a closure motion? The member—

Dan Bidois.

Dan Bidois.

I move, That debate on this question now close.

The question is that the Minister’s amendments to the preamble set out on Amendment Paper 380 be agreed to.

The Hon Dr Duncan Webb’s tabled amendment to replace the preamble is out of order as being inconsistent with a previous decision of the committee.

Members, we come now to Part 1. This is the debate on clauses 3 to 11—“Amendments to Marine and Coastal Area (Takutai Moana) Act 2011: general”—and the Schedule. The question is that Part 1 stand part.

Kia ora, Mr Chair. Having just talked about the preamble to this bill, we can now talk about the preamble to the main legislation. I see clause 4 amends the preamble.

Look, it’s a relatively simple point, but I’m a bit perplexed as to why there’s a sense that we’ve got to have this massive, long preamble in respect of all of the Court of Appeal’s decisions on it. Whilst an historian might be interested in the fact that there was a Court of Appeal decision, it’s actually really verbose to have, in the preamble to the main Act, a recitation of the Court of Appeal’s decisions which were, in fact, overruled by the Supreme Court. In fact, I’m not sure that the preamble needs amendment at all. In fact, I’m pretty sure there’s an excellent tabled amendment on the Table, in respect of clause 4. If we’re going to give a genuine historical account of why we’ve got here, we should probably recognise that it’s really part of the Government’s approach to Māori and Māori interests, which is, basically, to roll back the progress that we’ve made over the past, I don’t know, 150 years or so. In terms of the references to the Court of Appeal case, it’s entirely unnecessary because they’re gone, they’ve been overruled, and the Supreme Court case itself is the one which prevails.

It may well be that to recite the Supreme Court case and to say we had concerns, but the Supreme Court said that those concerns around what “continuous use and occupation without substantial interruption” means, in fact, were vindicated and that there’s actually not that much to worry about any more, but we’re going to continue with this piece of legislation, which makes it harder again to establish a coastal and customary marine title—is probably what it should actually say.

In terms of the new preamble, I’m just perplexed. I see that there is a preamble in the original bill; why you’d want to confuse it is just a little bit beyond me. If the Minister for Treaty of Waitangi Negotiations could talk about the preamble and why he wants to change it, and, in particular, why he wants to put into the preamble—it just seems very poor drafting—a narrative about a court decision that doesn’t stand any more, I’d be interested to hear that. Thank you.

Well, I would remind the committee, of course, when the first reading of this bill occurred, the legislation was designed to overturn the Court of Appeal decision, in particular, the impact of the Court of Appeal decision, which, in effect, took “exclusive” out of the second test, because the second test is that “exclusive use and occupation of the [coastal] area … without substantial interruption” and the effect of the Court of Appeal decision was, effectively, not to read out that word “exclusive”. When we were doing this, the opponents said that this was terrible and appalling; then, lo and behold, the Supreme Court agreed that it was a misreading. What we’re doing here is dealing with issues that relate to the Supreme Court decision. In particular—I just want to run through them—one is on the Supreme Court interpretation, which required extensive use of a space and an intention in some capacity to control the area since 1840 as far as the law permits. The bill is not too different, but subtly different to that, requiring the intention and ability to control the area to the exclusion of others since 1840.

Then, on the question of extent to which decision makers can rely on inferences, the Supreme Court interpretation permitted inferences around continuity of use and occupation as part of determining substantiality of any interruptions but reinforced the need for evidence to establish practical expressions of the applicant’s mana or control over the seascape. That pointed in the direction of tikanga, but, of course, tikanga is covered in the first leg, and if it was to be a big part of the second leg, then that’s not what we understood the intention to be, so the legislation focuses on influences on the extent and continuity and exclusivity of use, and occupation must be based on the evidence of physical use and not only spiritual or cultural association. That’s a second point of difference.

The third point of difference is around the burden of proof. The Supreme Court test was that applicants only need to demonstrate use in occupations since 1840 and that they currently hold the area in accordance with tikanga. Exclusivity and absence of substantial interruption can be inferred unless contested by a third party—that is, a third party, somehow, has to prove that it wasn’t held exclusively. The approach of the bill is to say that applicants must prove all the elements of the section 58 test now. That’s why we’re carrying on with this legislation, and that’s what we’re setting out to do. Thank you very much.

Thank you very much, Mr Chair. To the Minister for Treaty of Waitangi Negotiations’ last point, one of the key questions around this is: on whom is the burden of proof that exclusivity is maintained or is not maintained or has been broken? Is it the Minister’s opinion that the original intent of the legislation was to place the burden of proof not on iwi Māori but on those who wished to disprove that iwi Māori had exclusive use and, therefore, a right of customary title?

I note, in the Supreme Court’s finding from December, a reference to the Ngāti Apa case—which was the beginning of this whole question in terms of how it engaged with the Government—that “After analysing the cases on customary rights recognition in New Zealand law during the colonial period, Elias … in Ngāti Apa rejected the reasoning of Ninety Mile Beach as wrong, even in 1963. She concluded that the transfer of sovereignty gave the Crown radical title to the land but did not affect prior customary rights.”—which I believe is one of the points Tākuta Ferris was making earlier. “Instead, the common law preserved those rights until they were lawfully extinguished. Keith and Anderson JJ emphasised that the Crown bore the onus of proving extinguishment:”. Is it the Minister’s view that that is correct—that the Crown bears the onus of proving extinguishment, rather than iwi bear the onus of proving customary use?

Thank you, Mr Chair. I’ll take the Minister to page 3 of the amendment bill. I’m asking him about his clause 5 that amends section 9 of the Act. I want to ask him whether there should be a definition of “physical use” in this section, because that is a concept which he has been talking about as an important part of this bill, and yet I have some questions around how that meaning should be interpreted. There is already a definition of “exclusive use and occupation”, because that was the relevant part of the history of British law that this was hinged on. Now, if we are hinging it on physical use, that’s a concept of British law which comes from Norman feudal law and is centuries old, so the Minister needs to tell us what he means. Hundreds of years of British law have developed this idea of who owns land, and land ownership can hinge on ideas like adverse possession, which I think he was alluding to earlier, where you might have an exclusive use to the exclusion of others. That might be the important part of the law, but physical use goes back even further than that. That’s a system where you’re looking at how feudal lords might occupy a particular piece of land. That’s how peasants or serfs might use and physically use part of the land, which might give them a bundle of rights that exist alongside the ownership recognised through different mechanisms.

The Minister needs to help us to explain here what on earth we mean by “physical use”, because we don’t mean that in our land law now. We don’t expect Mr Andy Foster to get out every day and patrol the border of his house and dig out something from his lawn every six months to prove that he is physically using his lawn, do we? We don’t expect Te Whakatōhea to patrol their borders and get out and swim in the moana and erect the jetty to show physical use. We don’t expect those things. Their rights arise in different ways. They’re actually hinged on concepts in British law. They are nothing to do with tikanga Māori, although this path for establishing rights was intended to do so. On top of that, many iwi have asked the Government through the last 150 years to recognise their customary marine titles that are not given effect to by this law.

For instance, the rights of Ngāi Tahu and Rakiura Māori in the Tītī Islands was recognised through a pathway of negotiation with the ground to recognise those special rights and have nothing to do with these concepts around physical use or adverse position. That is an arrangement between the Crown which hinged on the use of that land, the physical use for the gathering of kai, for mahinga kai, and those are different sorts of rights that have been enshrined in that law.

I genuinely do not know which concept in British law we are looking for when the Minister is asking us to interpret the meaning of “physical use”. This idea—how far does it extend to? If I am physically using my lawn, do I have any physical use rights in the property that is 200 metres from my boundary? No. So physical use is a very limited sort of right, and that goes to the way that it was established in our law hundreds of years ago. It would be for people who were either farming or using that land for the gathering of food and other cultural practices. Is that what is intended here? If so, we should say that, because that is a different sort of limitation than the one that most people thought was being applied here. We should be clear about the way that that is intended to be given effect to, so it should be a new definition with a new empowering section in this amendment. It’s not. I would suggest that the best way to deal with that problem is then to take out this reference to “physical use”, because physical use in our law is not a concept that is well understood or one that we are using here to interpret what sort of rights—and none of us disagrees that there are rights that are given effect to by this legislation; it’s just what the test is for them—we mean when we have this debate. That is the right question to ask at this point.

I’ll actually be quite short. I just want to pick up on a point that Steve Abel raised, and I want to just take it a step further. The point was around onus, and I’m loath to say that a member as elegant as Steve Abel didn’t quite capture, I think, what he perhaps intended, because there are two concepts: one is establishing marine title, and then another is to say that it’s been extinguished.

I think the onus for both of those questions may be different. If you’ve had marine title, you can show that it existed in 1840, and you can show all of the other things that go to establishing marine title, but then the other party—perhaps the Crown—says, “No, it’s been extinguished by some lawful Act.”, then the question I have is this. Yes, the onus might be on the hapū or iwi to establish all of those things that go to establish marine title generally, but if the other party is relying on an extinguishment, whether it be by legislation or by some other lawful Act—some administrative Act, for example, or some appropriation of adjoining land or building a bridge across it by the Transport Agency, or something like that—is the onus on the other party, and not on the hapū or iwi, to establish extinguishment?

I think that’s actually a really important question. I think it’s quite separate from the question of establishing the coastal and marine title kind of prima facie, because it’s essentially a defence to say that, yes, all that’s true but there’s been an extinguishment through these series of events. If the onus lies the other way and the hapū or iwi have to prove on the balance of probabilities—I’m assuming—that that didn’t occur, that would seem entirely unfair.

That’s really a short point. It’s all I really wanted to raise.

Thank you very much, Mr Chair. We’re on Part 1 and on the preamble of Part 1. When I read through this second preamble—because we’ve got a preamble and then we’ve got a Part 1 preamble—it reads, essentially, like a timeline. It recounts each of the court decisions and basically paves the way for explaining why the Government took the action it did.

I would like to say to the Minister for Treaty of Waitangi Negotiations that there appears to be one glaring error or missing piece of information from that timeline in the preamble. That key date that is missing from those series of events is the Cabinet decision on 28 November 2023, and that is clearly before the decisions of Whakatōhea Kotahitanga Waka (Edwards) v Te Kāhui Takutai Moana o Ngā Whānau me Ngā Hāpū o Te Whakatōhea. What occurred on 28 November 2023 is that Cabinet endorsed the coalition agreement between the parties as the basis on which the coalition Government will operate. The Cabinet circular provided an instruction to chief executives and their respective officers that they were to have processes in place to implement that. In that Cabinet circular in the National - New Zealand First coalition agreement, it includes a commitment to “amend section 58 of the marine and coastal area Act to make clear Parliament’s original intent in light of the judgment of the Court of Appeal in Whakatōhea Kotahitanga Waka (Edwards) & Ors v Te Kāhui and Whakatōhea Māori Trust Board & Ors.”

I think it’s right that if that is a key point that this coalition agreement agreed upon and that is a fundamental reason that predates, actually, the court rulings that we are now legislating over, I would like the Minister’s views on why that key piece of information—which is an agreement between National and New Zealand First that is included in the coalition agreement and is fundamental, potentially, to the very legislation that we are debating now—that glaring omission, is not included in the preamble to Part 1.

I’m wanting to speak to my tabled amendment to clause 8(1), to be found on page 8 of the Minister’s Amendment Paper 380. My proposed amendment is to seek to delete clause 8(1).

That clause, if we look at it, requires the claimant group to provide evidence based on physical activity or use of natural resources in the area of claim, and that spiritual or cultural association to that area is not relevant unless it is manifested in physical activity or use of natural resources. My colleagues in the Opposition have spoken to the fact that there are many ways to express your connection to the takutai moana in your tribal rohe. We have to remember also that for centuries, there has been disruption for tangata whenua of connection, physically, in the occupation of land abutting the takutai moana, where they have their whakapapa, where their mahinga mātaitai [traditional shellfish gathering spots] are, where they have harvested, where they have paddled waka, and where they have had kāuta or tauranga waka [working areas or canoe mooring].

The proposal in this amendment is to delete this section, because it’s unfair. It is unfair on tangata whenua to have to show that, somehow, we’ve got a physical manifestation of connection to that space, when we may not own, by Western law, the whenua abutting that part of the takutai moana.

I raise that as an issue in my kāinga, Whangārei-terenga-parāoa, where the claimants stood in hearings and are waiting for a judgment right now, knowing that very few parcels of land around Whangārei-terenga-parāoa remain within Māori hands. In fact, the harbour board and councils have been great beneficiaries of the land abutting the takutai moana in Whangārei because of public works taking, and yet our people continue to utilise those customary resources available within Whangārei-terenga-parāoa as good kaitiaki. They continue to exercise their spiritual and cultural connection to that part of the takutai moana, as we see when tohorā beach themselves at Ruakākā and other parts of Whangārei-terenga-parāoa. It is the hapū that mobilises to demonstrate those cultural practices of connection to that place. They may not own the land abutting where that tohorā washed up, but they continue to go there, and they practise those cultural traditions of hauhake tohorā that have been handed down through the generations.

The expectation that, somehow, we have to reach this new threshold of demonstrating the physical manifestation of activity or use of natural resources is challenging for many tangata whenua—not only for those who have already been through the hearings process and have already had the decisions of the court handed down or are waiting but also for those claimants who are still preparing themselves for hearings.

Further, in light of this proposed amendment and the fact that we are saying, “Hey, let’s acknowledge the many ways with which tangata whenua connect.”, by deleting this clause, it opens up a pathway for us to look at—as we’ve discussed previously—a structural framework whereby, as tangata whenua, we can participate in this process in a scheme to ensure that not only the protection and legitimate interests of all New Zealanders in the marine and coastal area of New Zealand are maintained but also that there’s recognition that mana tuku iho for tangata whenua exists and continues to exist. I want to ask a question of the Minister for Treaty of Waitangi Negotiations: can he tell us at what point did our customary connection and rights to the takutai moana become extinguished, and how did we lose our customary rights to the takutai moana?

Now, there’s a whole new threshold. Now, we’re expected to jump through a whole lot of new hoops. How were our rights as tangata whenua extinguished by the Crown and when did that occur? It would be great to hear from the Minister.

The only thing I’d say in relation to that member’s speech, of course, is that nothing in this legislation impacts on the ability of Māori or non-Māori to go and collect shellfish and have a connection with a piece of coastline. That continues, and there are all sorts of arrangements in place in relation to customary fishing rights and shellfish-gathering rights and tītī gathering rights. All these things are not affected by this legislation, and they carry on. All New Zealanders—and so has been the practice for 150 years now—Māori and non-Māori, have used the coastal area and enjoyed it, collected fish and shellfish and had a great time, and nothing is being changed in relation to that.

Where the rubber meets the road in relation to this legislation, though, is the valuable rights that come with the recognition of customary marine title as outlined in this legislation, which, as we’ve heard, was an agreement between the Māori Party and the National Party back in 2011, which sought to balance the rights of New Zealanders alongside the desire to be able to assert customary marine title by particular groups, whānau or iwi. In relation to that, included in that bundle of rights is, for example, the ability to effectively grant or not grant resource consent for a range of activities, which—and the previous member talked about a port—can have real consequences for the operations of things going on in our marine space, which are important to how we operate as a country.

That is why. With those valuable rights, part of the balancing act that was achieved by this legislation was a high threshold, which is what we’re trying to establish through this legislation.

Thank you, Mr Chair. Again, my point is a relatively short one, I think, and it’s about new section 9B, in particular, subclause (3)(b), which says that “This section prevails over—(b) section 7”—of the principal Act—“(Treaty of Waitangi (te Tiriti o Waitangi));”. Section 7 of the Marine and Coastal Area (Takutai Moana) Act 2011, essentially, sets out that “In order to take account of the Treaty of Waitangi (te Tiriti o Waitangi), this Act recognises, and promotes the exercise of, customary interests of Māori in the common marine and coastal area by providing,—”, and it goes on to talk about the Act.

What it’s really doing, in section 7, is saying that this Act is part of the Crown’s discharge of its obligations under the Treaty. Obviously, the Treaty is relevant to any of these issues, but that is very much a parliamentary finger pointing to Te Tiriti o Waitangi, saying, “and the courts should recognise that this Act is to be interpreted in a way which is consistent with both the words and the principles of the Treaty”. My question—and I desperately hope the answer is a no—is: does the overriding effect clause here mean that this Act overrides the Crown’s obligation under Te Tiriti o Waitangi? If it does, it’s both a surprise and a deeply concerning matter, because section 7 is, essentially, saying that this legislation is seeking to ensure that we are recognising coastal and marine rights consistently with all of the principles and statements in the Treaty of Waitangi, including the statement that says—in English—that Māori will be able to keep their rights—their property rights, “their lands, forests, and fisheries”, which are the English words, if I remember them rightly—and yet, here, this seems to be saying “but not fisheries”, because—

It has nothing to do with the fisheries.

Well, you can scoff, Minister, but that’s what the words of the Treaty of Waitangi say. Yet you’re saying here that this piece of legislation will override the Treaty of Waitangi. That’s exactly what this says.

Now, my reo is not good enough to understand properly the reo version of the Treaty, but my understanding is that it goes further and talks not just about fisheries but about all of those taonga, which are precious, including wider rights of navigation and of kai collection, and the spiritual things which this explicitly overrides. Can the Minister assure us—and this is important when the courts come to apply this—that adherence with the Crown’s obligations under the Treaty is still expected? That’s, alarmingly, not what this appears to say. It says that—“overriding effect” is a strong phrase to use as a title—“this section prevails”. That is to say it overrides, and is dominant over, section 7 of Te Tiriti o Waitangi.

Is the Minister going to stand up and preside over legislation which explicitly breaches the Crown’s Treaty obligations, or can he assure me that I’ve, in some way, read that wrong and he can stand up and say, on the record, for judges to understand parliamentary intent, that it is his intention that the Crown uphold, adhere to, and honour the Treaty of Waitangi.

Thank you, Mr Chair. Following on from an answer that the Minister gave, I want to ask him about what he meant about these rights that are in the coastal and marine area arising under the agreement reached by the National Party and the Māori Party in 2011. My colleague the Hon Duncan Webb has hit on another one of these issues, which is that the Crown’s obligations under Te Tiriti o Waitangi are not a creature of statute. To purport to have an overriding effect over them gets us into some trouble. We need the Minister to clarify that the effect of that is what is intended, that Te Tiriti o Waitangi would not apply to the customary marine title (CMT) amendments. That is part of the constitutional framework that we’re operating within, not that we are amending today.

The question that I’m asking the Minister is the same sort of question, because the constitutional framework in which we are operating within, and the customary rights that exist before that, are different things. With the customary rights that were to be tested in 2004-05, the purpose of that testing through the court was because they arose outside of any legislation. They were rights that had been in place before the signing of Te Tiriti o Waitangi in 1840. They were a bundle of rights that were associated with the legal system that was the law in New Zealand prior to that, which was tikanga Māori.

Purporting to say that these rights had arisen in the agreement reached by the National Party and the Māori Party in 2011 and were then enshrined in that legislation is wrong and is an interpretation of the law which doesn’t recognise that those rights were something that existed and that there were a bundle of property rights held by people in accordance with the legal system which was operative. Those were rights that had arisen, and the question that we were being asked, as a Parliament at the time and as the New Zealand public engaged in this public debate, was how those should crystallise. How should the courts recognise those rights that exist? Those rights do in fact exist, so how should we give effect to them? That is something that all New Zealanders have an interest in, and that is why it’s right for Parliament to have that debate. That is why we are still debating what was intended, but we are certainly not having an argument about whether they did exist, because if those rights hadn’t existed, then we wouldn’t be having this debate about whether they crystallised and what is associated with them—like, whether you can have any sort of say in the consultative process of a local council in relation to a resource consent—not whether those rights existed in the first place, because they did.

My question for him is about—it’s on page 4 at the bottom, in clause 9B(2)—this phrase: “A decision maker (including the Court) must interpret the CMT amendments in a way that promotes their purposes and application (as stated in section 9A).” I want to ask him how a decision maker is meant to interpret that when those rights already existed, but I also want him to explain what that means, because this is not the usual way that you would set out a duty for a decision maker or a duty for the court.

Can we expect that it would be this Government’s approach to insert preambles that are, essentially, a political narrative of the Government’s policy and then clauses in other legislation which would require judges and require decision makers to comply with the interpretation of the policy of the Government in the way that is, essentially, being suggested here that they now have a duty to do? Inserting a preamble into a document is usually used in the context of Treaty settlements. This is not a Treaty settlement. These rights exist. These are not rights which arose in negotiation between two parties represented by counsel over many years where there is a process for that in New Zealand. These are rights which existed before that, so to suggest that a decision maker then needs to interpret those rights—which are part of the common law of New Zealand—in a way that is, in effect, promoting their purposes and application, which are set out in what is a political narrative plonked on the top of something that purports to be legislation, is a bizarre way to make law.

Can we expect a National Government to now insert a preamble into every other piece of legislation for which they don’t like decisions from the courts, like setting out perhaps their political campaign documents in the Crimes Act and asking judges to comply with that or else?

Well, the last part of that member’s comments was irrelevant to this discussion. I just wanted to clarify, because the previous member, the Hon Dr Duncan Webb, was suggesting that, through this legislation, we were going to override the Treaty of Waitangi. As he well knows, what the section refers to is that it prevails over section 7 of the legislation, which has the title “Treaty of Waitangi”; it’s not the Treaty of Waitangi itself. It is simply overriding section 7. We’re replacing the specific comments in the legislation over the broad comments in section 7, but we are not seeking to override the Treaty of Waitangi, or Te Tiriti o Waitangi. We are simply referring to section 7 of the legislation.

Thank you very much, Mr Chair. I would like to speak to Amendment Paper 380 and clause 8, “Section 58, amended (Customary marine title)”. My colleague has put up an amendment to delete that clause. I have an alternative, my tabled amendment No. 2. Now, for clarity, this amendment is the specific point at which the legislation articulates that “exclusivity of a group’s use and occupation of a specified area [must be] based on evidence of a physical activity, or of a use, related to natural and physical resources (within the meaning of section 2(1)”. That’s new section 58(1A)(a) in clause 8, but new section 58(1A)(b) is that it “is not based on a spiritual or cultural association”—it explicitly articulates that it must not be based on that.

Now, to the point that my colleague Arena Williams made so eloquently—speaking of eloquence, not as eloquently as Mr Duncan Webb clarified my question on where the onus falls. It is generous of you to say I was eloquent on that, and it’s still an unanswered question. The onus of proving extinguishment—we still haven’t had an answer on that, but you out-eloquented me on that, Mr Webb, so I appreciate it.

To the point that Arena Williams was making about the gathering of shellfish in her own family history, it is a problem for this complex history we have here for the courts to have clarity as to the character of customary use in customary marine title. Narrowing the things that the court can consider is particularly unhelpful for that court, because that very particular story that a member of this House was able to tell and that showed the relationship of her father’s iwi to the marine coastal environment would be exceedingly useful and informative for a court. Under this Amendment Paper from the Minister, that sort of articulation would not be able to be considered.

In my amendment, I propose that, in determining whether an applicant group has exclusively used and occupied a specified area, the court may consider the following types of evidence—and the purpose of this is to recognise the value of physical evidence, the following types of evidence: (a) physical activities and uses related to natural and physical resources—let that be one of the considerations—but also spiritual and cultural associations that are manifested through ongoing kaitiakitanga practices; oral histories, whakapapa and traditional knowledge; recognition by other iwi and hapū of the applicant group’s authority over the area—surely, a very useful test for a court—the exercise of mana and tikanga over the area; and any other evidence the court considers relevant and that gives due weight to Māori knowledge systems and customary practices.

Surely, Minister, giving our courts that breadth of consideration to take into account all of these useful sources of information and evidence in order to give absolute confidence of the proof of customary marine title would be beneficial in upholding the principle of customary marine title and, indeed, Te Tiriti o Waitangi. Thank you.

Just in terms of the burden of proof question that’s been raised by a number of people, the 2011 Act says, in section 106, “Burden of proof”, in subsection (3), that “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”, and the bill does not change that. The question of extinguishment is not covered by what we’re talking about when it’s in relation to the burden of proof. That relates to the applicants proving elements of the section 58 test, which is that they hold the area “in accordance with tikanga;” and with exclusivity in the absence of “substantial interruption”.

Tēnā tātou. Ka hanga rerekē aku kōrero ki te Minita. He nui ngā wetewetehanga o te ture kei mua i te aroaro, tōna hāngai ki Te Tiriti o Waitangi, te wāhi ki te Māori hei whakaū i tōna mana ki runga i ōna moana.

Ahau, he uri nō Te Tauihi-o-te-waka-a-Māui, nō Ngāti Kuia.

[Greetings to us all. My comments to the Minister will be a little different. There are many analyses of the legislation that is before us, its relevance to Te Tiriti o Waitangi, and the role of the Māori people to prove their authority of their maritime assets.

Myself, I am a descendant of the Marlborough area, from Ngāti Kuia.]

If you can just hold on, the Minister needs to get a translation device.

Ka pai. Ka pai, āe. Nō reira ka hanga rerekē aku kōrero ki te Minita i te mea ko te reo e whai wāhi ana ki roto i te whakawhitinga o tēnei ture tīnei i te mana Māori ko te reo Pākehā. Mehemea ko te tūāpapa o tā tātou tohe ko Te Tiriti o Waitangi, well kei hea mai te wāhi ki te reo Māori hei waha i ōna tikanga, i ōna kawa, i ngā tātainga kawa taketake noa mai ki te moana, ki te whenua, e ū ai te mana moana, te mana whenua o tētahi iwi, o tētahi hapū ki roto anō i tōna rohe? Kei hea? Karekau, ki taku titiro.

Nō reira kua uta ki runga ki a mātou te haepapa ki te whakaahua i tō mātou mana i runga i ō mātou whenua, i roto i ō mātou moana. Ka rite tonu taku tono pātai ki a koe, e te Minita, pērā i a Aperehama i tērā wiki, nāna te kī atu, “Ko wai hoki koe?” Ko wai hoki koe ki te whakawā i a mātou? Ko wai hoki koe ki te whakawā i te mana whenua, i te mana moana o tētahi hapū, o tētahi iwi mēnā e pono ana koe ki tō wāhi i roto i Te Tiriti o Waitangi, ki te tūtohi i waituhia e tō Kuīni i te wā i a ia? Ki te mana taketake o ngā tīpuna Māori nā rātou Te Tiriti o Waitangi i waituhi, ko wai hoki koe? Ko wai hoki koe ki te kawe i ēnei ki te reo Pākehā, koia me tōna kotahi? Kei hea rā te wāhi ki te mātotorutanga o te ao Māori me tōna reo? Tōna reo me ōna tikanga? Te reo me ōna tikanga; its language and its knowledge systems. Kei hea rātou? Kei hea ērā mea e rua?

Ahau me mātou o Ngāti Kere, tōku whānau, taku whenua tipu, kua haere ki tō Kōti Teitei, kua tae atu ki mua ki te aroaro o te tiati me te hora i ō mātou kōrero katoa. Ka riro mai ko te whakaaetanga a tō tiati. Nā, ka mutu tērā, ka mea atu ngā kaumātua o Ngāti Kere he mana tō te kupu. Nāwai rā taua mana ka whakahokia anō nei he kurī kai i tāna ruaki. Kei hea rā te wāhi ki ngā whare mātauranga o te iwi Māori? Me mātou o tō mātou rohe, ngā whenua i murua katoatia, ngā ngahere i tahuna ki raro. Anā ka tū mai, ka tipu mai ko ngā pāmu, ko te hipi, ko te kau, ka ngaro ngā whakamahinga o te whenua.

Tō mātou iwi he iwi piripono ki te marae o Tangaroa. Tō mātou iwi he iwi noho takutai moana. Te whārahitanga o tō mātou rohe mai i Ōuepoto.

[Oh, OK. OK, yes. So my comments to the Minister will be somewhat different because the language whose place is provided for within the discussions concerning this legislation that extinguishes Māori authority is the English language. If the foundation of our debate is Te Tiriti o Waitangi, well then, where is the place of the Māori language to convey its own traditional practices and its own protocols, the original cultural frameworks and practices that reach from the land to the sea, in order to prove the marine and terrestrial authority of a particular iwi, a particular hapū within their own traditional estate? Where is it? There is none, in my view.

And so the responsibility has been put on to us to elucidate our authority over our lands and within our marine assets. My question to you, Minister, is the same as Aperehama’s last week, who said, “Who are you?” Who are you to judge us? Who are you to judge the authority over land and sea of a hapū or of an iwi if you are true to your role in Te Tiriti o Waitangi, the charter that was signed by your Queen in her time? To the original authority of the Māori ancestors that signed Te Tiriti o Waitangi, who, indeed, are you? Who are you to convey these things in the English language alone? Where is the role of the depth of Māori society and its language; its language and its traditional practices; its language and its knowledge systems? Where are they? Where are both of those things?

Myself and those of us of Ngāti Kere, my family, the land where I was raised, we have attended your High Court, we’ve gone before the judge to lay out all of our statements. We received a ruling of your judge in agreement. Once that was done, our elders of Ngāti Kere stated that words have power. With the passage of time, that authority will be returned like a dog consuming its own vomitus. Where is the role of the institutions of higher knowledge of the Māori people? And those of us from our traditional estate, the lands that were all confiscated, the forests that were burnt down. Subsequently farms were established and grew—sheep and cattle—and traditional uses of the land were lost.

Our people are faithful to the domain of Tangaroa. Our people inhabit the coast. The breadth of our traditional area from Ōuepoto.]

Mr Ferris, I can appreciate the broad nature of your speech at the moment, but we need to come back to this part of the bill at some stage as well.

Tēnā koe e te Chair. Kei te kōrero ahau mō te proving occupation. Ō mātou kōrero, ō mātou waiata, ngā ingoa o ō mātou tīpuna kei runga i ō mātou whenua, i ō mātou moana, i ō mātou toka tū moana, ngā ākau kei runga i te tāhuna, kei raro i te moana rānei—ko Te Paerahi te ingoa o tō mātou moana. E kōrero ana mō te wāhi kei runga i te moana e kore e kitea te whenua.

Nō reira ēnei āhuatanga, nā ka whakatūtū aku kōrero, e te Tiamana, nā runga anō i tana pōhēhē kāore e whai hāngaitanga o aku kōrero ki ngā kōrero o tō pire. Engari e mea ana ahau kei te whai panga—ne? Ko te rerekētanga o tā te titiro a te reo Pākehā me te iwi Pākehā, me tā te titiro a te iwi Māori me tōna reo.

Nā reira, “Taketake noa ana taku noho tūturu, tau tonu mai i a Te Aomatarahi”. Koinā te tīmatanga o tētahi tuhinga, titonga pātere o tō mātou pāpā. Tēnā pea ki te haere tonu; me haere tonu? Ā, ka pai.

Tō mātou pāpā, a Piri—ne?

[Thank you, Mr Chair. I am speaking about proving occupation. Our traditional narratives, our songs, the names of our ancestors bestowed on our lands, our ocean assets, our marine geological features, the reefs on the shoals or under the sea—Te Paerahi is the name of our traditional ocean area. I am speaking about the area on the sea that cannot be seen from the shore.

And so to these things, now, I will compose my statements, Mr Chair, due to his misunderstanding that my comments have no relevance to the statements in the bill. However, I am saying that they are relevant—right? It is the difference between a perspective of the English language and Pākehā people and the perspective of the Māori people and their language.

Therefore, “My settlement of occupation if truly long-established, and was bequeathed to me from Te Aomatarahi”. That is the opening of a composition, a traditional chant, by our patriarch. Perhaps if I were to continue; should I continue? Yes, OK.

Our patriarch, Piri—right?]

Mr Ferris, you are able to seek the call for another five minutes.

E whakaae ana kia haere tonu ahau? Tēnā koe—tēnā koe. Ko te take kei te tiki atu i tēnei o ngā pātere i titoa e tō mātou pāpā, e Piri, hei aha? Hei titi i te roherohenga whenua o Ngāti Kere mō ngā kerēme te take. Katoa ngā ingoa o te whenua—ne? Katoa ngā ingoa o te whenua i riro i tō mātou tipuna, i a Te Whatuiāpiti, kei te pātere nei.

Nā, ko te evidence matua, me kī, o tō mātou kerēme i tae ki te Kōti Teitei ko te tuarā o te pātere nei e waha nei i te whare o Ngāti Kere he whakaū, ne, he whakaahua, he whakaū i tōna mana i runga anō i ōna whenua, i ōna moana.

Nō reira kei hea rā te wāhi ki a koe? He kī mai ki a mātou, “Tēna, whakaaturia mai tō mana tuku iho.” Nō mātou i roto i ō mātou waiata, nō mātou i roto i ō mātou ingoa, nō mātou i roto i a mātou mahi i runga i te whenua, i roto i te moana, me te tukuihotanga o ngā mahi a ngā mātua tīpuna. Hei reira tēnei mea te tukuihotanga, te taonga tuku iho e kōrerotia ana i roto i te wāhanga tuarua o Te Tiriti o Waitangi e whakaū ana. E whakaū ana.

Nō reira hoki au ki te pātai a Aperehama, “Ko wai hoki koe?” Anei taku wero ki te Whare: Kei hea rā te wāhi ki Te Tiriti o Waitangi me tōna reo? Kei te kī atu au ki a koe kua tae kē ahau ki mua ki te aroaro o ō kōti. Kua whakaae mai tō tiati kei a mātou tō mātou mana nā runga anō i te tau titonga a tō mātou pāpā, a Piri, nāna i whakakotahi mai i ngā kōrero ki te pātere kotahi.

Anā kē taku whakamana i tō mātou mana moana. Anā kē taku whakamana i te rohenga whenua. Me taku mōhio ko ngā kuīni me ngā kīngi o Ingarangi, i pērā hoki rātou. Kāore rātou i haere ki ō rātou wāhi whakatūtū whare ai, kao. I tonoa ētahi kia waiata i ētahi waiata, kia titoa ētahi rotarota i kawea whānuitia ki te ao. He mana tō te kupu.

Nō reira e kore e tō roahia kia pau katoa tēnei wā i a au, engari anei rā tētahi wāhanga o te pātere e mea nei:

Taketake noa ana taku noho tūturu

Tau tonu mai i a Te Aomatarahi

Ko Kūhāroa, ko Haumearoa

He tuahine nō Tūtāmure

Ka puta mai ko Rongomaipureora

Ko Te Ikaraeroa, ko Te Angiangi

Makuru te whenua i tuku iho

Tā Manuhiri he tono kāinga

Tā Te Whatuiāpiti he whakatihi kaihaukai

A Te Uaua-tamariki, Rurea me Taiwhā

Whakaara-raumati, Rurupō, Te Tore-o-Puanga

Tīmata tana roherohe i te pūau o Ōuepoto

Mau ki Ōteka, ka makere ki roto o Mangamāhaki

Mau ki Tamumu, pupuke whakahī

Taka iho rā ki te awa o Tukituki

Mau ki Mākāretu, tōna mātāpuna

Mau ki Ruahine, tōku pae maunga

Tirohanga whānui ki te pae moana

Pānukunuku i te pae o Ruahine ki te mātāwai o Manawatū

Kūteretere iho ki Mangatoro

Mau ki Tūtūrewa, mau ki Ōpōrae

Ki Wahatuarā, ki Puketoi

Ka makere iho ki te awa o Akitio

Whakatemoana ki tōna ngutuawa

Hoki tonu mai mā te takutai one ki Te Poroporo-huariki, Tautāne

Pā tūwatawata ana ki Whangaehu

Tū roa ko te rae o Rākaipāka

Ahu atu au ki Pariwhakaruru

Tū ki runga Te Upoko-o-Te-Haemata

Kai ana aku mata runga o Te Paerahi

Ahu atu ki Ōhine-muhu, Taikura, Parimāhu

Mutu tonu atu ki Ōuepoto

Anei taku whenua whakatipu

Tū mai ko Te Awapūtahi ki runga

Pōpōhikitia ki raro

Ko te roherohenga whenua o Ngāti Kere e tau nei

Tēnā koe e te Tiamana. Kia ora tātou.

[Am I permitted to continue? Thank you—thank you. The reason I am referring to this particular chant that was composed by our patriarch, Piri, is why? To embed the boundaries of the traditional estate of Ngāti Kere for the purpose of the claims. All the names of the landmarks—right? All the names of the landmarks that came under the authority of our ancestor, Te Whatuiāpiti, are all in this composition.

Now, the primary evidence, I should say, of our claim that came before the High Court is the spine of this chant that describes the house of Ngāti Kere to prove—right?—to describe and prove its authority over its terrestrial and marine estate. And so what is your role? It was said to us, “Please demonstrate your authority that was handed down to you.” It belongs to us within our songs, it is ours within our names, and it is ours within our activities on the land and on the sea and in the legacy of the actions of our forebears and ancestors. This is where this legacy exists, the inherited properties that are mentioned and guaranteed in Article the Second of Te Tiriti o Waitangi—guaranteed.

Therefore, I would like to return to Aperehama’s question, “Who are you?” This is my challenge to the committee: what is the role of Te Tiriti o Waitangi and its language? I say to you that I have already come before your courts. Your judge has agreed that we have our own authority due to the composition of our patriarch, Piri, who brought together the narratives in one single chant.

That is indeed my proof of our authority over the ocean. That is indeed my proof of the terrestrial boundaries. And as far as I know, the queens and kings of England were the same. They didn’t traverse their lands constructing buildings as they go, no. Some people were commanded to sing particular songs and compose poems that were then carried widely across the world. Words have power.

And so I will not prolong it and take up all the time myself. However, here is a section of the chant I referred to:

My settlement of occupation if truly long-established

and was bequeathed to me from Te Aomatarahi

Kūhāroa, Haumearoa

Sisters of Tūtāmure

Rongomaipureora was born

and Te Ikaraeroa and Te Angiangi

The land of inheritance is bountiful

Manuhiri requested accommodation

Te Whatuiāpiti held a great feast

The food piles of Te Uaua-tamariki, Rurupō and Te Tore-o-Puanga

His traditional estate commences at the Ōuepoto river mouth

Journey to Ōteka, descend into the Mangamāhaki stream

Progress to Tamumu, a proud promontory

Descend to the Tukituki river

Travel to Mākāretu, its source

Progress to Ruahine, my mountain range

With a wide view to the ocean horizon

Follow the contours of the Ruahine ridgeline to the source waters of Manawatū

Flow down to Mangatoro

Journey to Tūtūrewa, and to Ōpōrae

To Wahatuarā, to Puketoi

Dropping into the Akitio river

Head towards the sea to its mouth

Return via the sandy shore to Te Poroporo-huariki and Tautāne

March in defensive formation to Whangaehu

Where the headland of Rākaipāka has stood for time immemorial

Head towards Pariwhaaruru

Stand upon Te Upoo-o-Te-Haemata

Where my eyes behold Te Paerahi

Head towards Ōhine-muhu, Taikura and Parimāhu

To conclude at Ōuepoto

This is the land where I was raised

Te Awapūtahi mountain stands above

Pōpōhikitia is below

This is the traditional estate of Ngāti Kere, hereby established.

Thank you, Mr Chair. Thanks to everyone.]

The honourable Minister. Just before I call him, Mr Ferris, you have been indulged by the Chair. Please respect that in any further contributions to this committee.

Thank you, Mr Chair. Look, I think the essence of the previous speech was to ask who I am to bring in such a bill. In answer to the member, I can say, well, I don’t want to distract the committee in a long sort of family history, but the first of my family, Charles Goldsmith, arrived in this country in 1840-odd—180 years ago. We’ve heard of his exploits—elements of it—in the history of the House. He did a whole lot of stuff and entangled himself with Te Kooti, very sadly in many respects. That is the first of the many people.

Now, the member’s genealogy extends maybe four or five times longer than my 180 years in this country, but that makes me no less of a New Zealander than he or any other New Zealander is. My history goes back 180 years, and there are plenty of other places, and they have been enjoying the coastal area of this country for a very, very long period of time.

Secondly, who am I? I am a Minister of the Crown, elected by the people of New Zealand in the modern democracy in which we live. We as a Government are setting out to try and do our best to find a way through the debates and discussions that we have as a country to recognise our history, recognise customary rights, recognise the role of the Treaty, and try to figure out how to do that in 2025 and in the context of a modern democracy where people have general expectations about what it is.

We are blessed to live in one of the few countries in the world where we have accountable Government, where the people of New Zealand regularly get the chance to throw out Governments that they don’t like. They’ve done that recently and they won’t be doing it for a long time to come, I imagine, but you never know. They might, and that is the system that we have, and we’re accountable for that.

What we’re trying to do, as elected members here, is to find a balance between a point of view that’s put out that the entire coastal area of this country—this land is girt by sea, as the Australians are as well—is still owned or held in customary title by the original inhabitants, and we’re also trying to recognise that other people have an interest in it. That is why this legislation that we’re debating today sought to balance those rights back in 2011 by finding a pathway through for people to recognise customary marine title while also setting a high threshold. We’re having a debate about where that threshold should be. That is who I am, and I hope you’re interested.

Now, the Chair has handed out more indulgences than a 12th century Pope today. We have a balance. We’re going to maintain that balance. We’re now going to be back on the bill.

Thank you, Mr Chair. I’ll bring the Minister for Treaty of Waitangi Negotiations to page 7 of the bill. It is new section 58(1A)(b) in clause 8 that I want to discuss with him, and it does relate to the contribution of the previous speaker Tākuta Ferris, because I think all of us can find what he was saying there around whose history and how do we establish what history is relevant to this paragraph (b). This is a prohibition on decision makers to not make an inference which is “based on a spiritual or cultural association with all or part of the area”. I raise this point again because it is important that we understand exactly what we are agreeing to here, and I don’t think it is something which many members in this House quite appreciate just how far-reaching that is.

In the situation where evidence is presented in this kind of case, that evidence is treated as expert evidence. You might have in this sort of proceeding a kaumātua, or a person who has a long and in-depth knowledge of not only the history of a particular area but the genealogy of those people who claim whakapapa to that area, present to a court, or even to the tribunal, their evidence of associations, and the reason that they will often begin with the spiritual and cultural associations to that place is because they see that as the most important evidence.

The reason I raise this and step the committee through it is that it is the most relevant and important evidence, because that is how associations are recorded in the way that they are engaging not only with what they are presenting in the law now but what the law is in accordance with tikanga Māori. They are, essentially, presenting evidence of, say, the stories that Ngāi Tahu have of the children of Hine-nui-te-pō—the ankle-biting sandflies in the fiords—and the stories of how they are kaitiaki of those places. It is important to appreciate their cultural lineage and their genealogy and the spiritual associations that people have with those sandflies, not because they are presented as spiritual evidence, but because they are presented as evidence of occupation, evidence of use, and evidence of association with land.

It’s important that we appreciate that in paragraph (b), what is being extinguished here is the ability of that evidence to make a difference to these decisions; in fact, it’s a prohibition on someone hearing the evidence on which they would draw inferences about that. It’s not just saying that “We think you”—the courts—“should take into account different sorts of evidence, including spiritual evidence and physical use.” It’s also not saying that “There is a hierarchy of the type of evidence that we want you to take into account, and that spiritual evidence should come after actual-use evidence.” It’s actually saying that “Evidence that you hear, probably first, from the expert of genealogy and spiritual connection to a place, the evidence that they think is most important to their case—that is evidence that you must not make inferences about.”, and that changes the way that these proceedings will have effect. It changes the way, ultimately, that Māori will see the court system and their ability to participate in this process, and it ultimately devalues the way that this history has been preserved in our oral culture, because it is one thing to require someone to set out their physical use of an area while written records exist.

My father was an historian for the Waitangi Tribunal in the 1990s. He compiled much of the evidence in Tauranga Moana, for example, by interviewing orally and then writing down the evidence that was presented around physical use of those lands. That is useful, and now it is evidence that can be gone back to because it exists. That was not a service that existed in the decades leading up to the 1990s, because the Waitangi Tribunal did not operate. It is not evidence that is available.

The evidence that is available to establish use up to the year of 1840 is that waiata that Tākuta Ferris used. It is the karakia that establishes the use of the land and of the trees, and that use of the land where those sandflies that bite at the ankles of te uri o Ngāi Tahu, ngā uri o Te Wai Pounamu, are plagued by. Those are useful stories that tell us the existing history, and so to take out the ability of someone to make an inference about that use changes the system entirely.

Kia ora, Mr Chair. As someone who has spent plenty of time in Fiordland, I’m not sure Arena Williams fully appreciates the fierceness of the sandflies. I would curse them rather than see them as a—

I can tell you their whakapapa.

Ha, ha—yeah! Look, I actually wanted to go to the Schedule, which Part 1 incorporates. It’s actually a really important part of the bill because it’s got all the transitional provisions in it. I’ll talk about those at another point. The one I really want to talk about is new clause 6 in the Schedule, “No entitlement to compensation”. Now, there are two reasons why I want to talk about this. The first one is one of principle. That is, if the Minister accepts—because it seems to be his view that the law before the bill was passed at the moment is more generous in the recognition of customary rights than it will be afterwards—we have a good number of iwi who have embarked upon the recognition process and who are either through the ministerial process or the court process, a significant way through, that would strike me as, to take the words out of another piece of legislation before this House, “a significant impairment of their property rights”.

My question is really about whether the Minister for Treaty of Waitangi Negotiations is happy to stand up and do what he will be expected to do under the Regulatory Standards Bill when it’s passed and explain why he is not compensating, under this legislation, owners of property rights whose property rights are being significantly impaired by this. That’s the first point about compensation.

The second point itself has two legs, and that is about the work that has been put into these claims. It’s not cheap. Much of the work is done, as Arena Williams has sort of alluded to, by oral history and voluntary work.

Volunteers.

That’s right—“volunteers” is absolutely right, but also there are a few people who get paid along the way, as well. That can really add up, so my question is: why is there no compensation for the significant lost value where people have spent years both in cash and time in pursuing these claims?

Sacrificed.

It’s my call at the moment, so just—ha, ha! But the second leg of that is this: if the litigants in the court cases, in particular, go to the courts—because in these cases, at least in some instances, they’ll be like, “Well, what’s the point? You’ve changed the rules under us. We can now look at it, and we’ve got legal advice that says we’ll now be unsuccessful.”, but the costs issue is still extant. If a litigant goes to the court and says, “Well, the other side changed the rules of the game whilst we’re halfway through.”, but this court has a discretion to award costs on any basis it thinks fair and just and fit, does new clause 6 limit the right of the court to award costs against the Government?

It strikes me that if you go to court, it doesn’t matter. Even if you discontinue, the court has a discretion to say, “In all of the circumstances, the litigation was properly brought, and the behaviour of the other side led to it being discontinued.”, and in those cases, the court can award costs, in my example, against the Government. Does new clause 6 mean that courts cannot award costs against the Government in marine and coastal area claims?

I think the member knows the answer to that question, which is, no, it doesn’t. It’s in relation to claims about property rights and compensation, and our view, of course, is that this bill is reasserting what Parliament intended in the original bill.

In terms of costs, we do recognise the very big frustrations that many people associated with this process would be feeling about having to rehear seven cases, potentially—four that have been decided since 2024; not the original Whakatōhea case, which is being left to enjoy the fruits of their litigation, but the four customary marine title awards made since 25 July 2024, and three are pending. The Government has set aside $15 million towards the extra cost. It is not a desirable situation, and it’s not something we’ve done with great pleasure or excitement. It is not something that we wanted to do at all, but we felt that it was required, given the significant change to the threshold that first came through the Court of Appeal decision, and it has continued, in elements, through the Supreme Court decisions. We do recognise that it will be very trying for particularly those seven cases that have gone to hearing. We do note that there are many, many, many more cases still to come, and that’s why we believe, as a Government, that it’s important to get that threshold correct.

In terms of the cost, the cost has been huge. I don’t have the exact figure, but more than $65 million has been spent by the people of New Zealand in support of claims that have been taken so far over the—what is it?—nearly 14 years since the legislation has passed, in support of claimants. Much money has been spent, and the predictions are that we have another 20 or 30 years of litigation, and so there are many elements of this legislation that need further work. That still has to be dealt with outside this legislation. But in terms of the court costs, we have set aside a sum of money for that purpose.

Thank you very much, Mr Chair, I appreciate it. I’m speaking to clause 8 on Amendment Paper 380. I believe that the contribution of Tākuta Ferris was exceedingly eloquent and practical and demonstrative of—

Watch out, New Zealand, you’re getting the Greens, Te Pāti Māori, and Labour.

—the challenge that we face here. It enhanced the mana of the House—Mr Bates—for us to hear firsthand a pātere, a chant, that shows exactly how a cultural form elucidates the physical interactions of an iwi with a particular area.

My question for the Minister for Treaty of Waitangi Negotiations is this: given that such an articulation of the relationship of an iwi to an area articulates physical boundaries and physical activities with the marine coastal environment, in new section 58(1A), in clause 8, where it is articulated that “a group’s use and occupation of a specified area in a period … is based on evidence of a physical activity, or of a use, related to natural and physical resources”, does the Minister regard the likes of a chant articulating that as evidence? Is that evidence, and—to the point—if it is evidence, then new section 58(1A)(b), which goes on to say, “is not based on a spiritual or cultural association”—does paragraph (b) rule not out the possibility of such a piece of evidence being accepted?

My final point, to clarify the question, is that you just gave us an oral testimony of your own family history here in Aotearoa New Zealand, and we accepted that testimony.

Enjoyed it.

We enjoyed it. We took your words in good faith, and you brought no physical evidence. This whole House relies on testimony—oral testimonies—that we may question or test, but why would you deny something as powerful as the likes of the articulation of the relationship in a physical sense that an iwi produces on a regular basis in interaction, in telling their history with the land and the water? Why would it, potentially, be denied?

In response to that, all evidence has been and will continue to be relevant to the decision maker. The change is that cultural or spiritual evidence needs supporting evidence of physical use, but tikanga and oral evidence remain important.

Thank you, Mr Chair, for my call, which I’m very grateful for, and I hope that my colleagues are able to participate in the debate further. I want to ask the Minister for Treaty of Waitangi Negotiations this: why will he not exclude the case of Ruapuke Island from the further customary marine title amendments?

In his preamble to the bill, he seeks out an arrangement with Ngāti Porou, which is a legislative arrangement which recognises their coastal and marine title and how this Act is intended to interact with the existing arrangement. That’s good and that is fair for Ngāti Porou. Ngāi Tahu have suffered at the hands of colonisation and have been dispossessed of their lands in Te Waipounamu for many generations, and Ruapuke Island is no exception. It is incredibly important to the history of Ngāi Tahu and the uses of its people. The Ruapuke Island decision is probably at the top of the list of one where this is a use of taxpayer money which is not necessary.

I doubt that the Minister ever intended to extinguish the rights which have been crystallised and recognised at the High Court level in the case of Ruapuke Island. I want to underscore this point to you: that decision found from the expert evidence that the applicant group had held this specified area in accordance with tikanga and that they had whakapapa connections to that area, but they also had exercised control in that area through mahinga kai, through kaitiakitanga, through rāhui that they exercised, and through protection of biodiversity. It was regular use, physical use, use in a customary sense, use of land rights, and the use of British land rights, and that is something which meets all of the tests which the Minister has talked about today. Everything in this committee stage points to that decision still standing, and it should stand.

It has been a long time coming that the whānau of Ruapuke Island have not had their rights and interests recognised in the marine and coastal area of the island, despite the Crown coming to arrangements with the owners of the Tītī Islands and their traditional take in those islands in a different way—and so it is time. Why, Minister, won’t you carve out that action, which recognised the coastal and marine area of those whānau who whakapapa to Te Waipounamu? Why won’t you preserve the rights that exist now, when the High Court has recognised them under the old test but they will clearly meet your new test? Why must they go back, using taxpayers’ money—the $15 million, or a portion of that—to be reheard? Why must they now comply with the new evidence requirements and the duties on decision makers as you have set them out in these amendments, when it is clear to almost everyone in this House that that is the case, which should still stand, and that the rights that exist there are rights which most New Zealanders would want to recognise?

Ruapuke Island is important historically. It is important culturally, not only to those people who are landholders there and landowners, and not only to Ngāi Tahu but to all New Zealanders, in a history that we can be proud of in the South. It is a history of colonial intermarriage and a history of mahinga kai that is unique in the world and a history that should be celebrated, and that whānau can now move on because they have done the work since 2017 in lodging that application, where they had to compile the evidence, they had to take it through a forum that was rigorous and it was tested, and it was won. Why isn’t now the time that we can finally say to the whānau of Ruapuke, “You have done what you needed to do. You have met the high bar. You can now move on to telling your story of the occupation of Ruapuke and of the history there and the colonial intermarriage, and it is something that all New Zealanders can be proud of.”?

Thank you, Mr Chair. My friend and colleague Arena Williams just went through a particular claim that has been decided but will have to be relitigated, which raises the transitional provisions. I must say, I’ve seen some transitional provisions in my time—this is in new Schedule 1AA in clause 11—but these ones take the cake. They probably take the cake because they’re trying to do something extremely complicated.

Look, I get the basic rule, which is that if before the Government’s announcement, you had sorted out your claim and it had been finally decided, then that’s all well and good. That’s going to be a very small number of claims. But from there, it takes another kind of two pages to explain the complexities about how it’s all going to work from there.

There is the basic principle, which is—because this breaches the rule against retrospectivity, because there’s one band of cases—and I think this is the one Arena Williams was referring to, where the Government made a policy announcement but hasn’t passed the law; the judicial process ground on and decisions were made, and so those rights have crystallised, they’ve been recognised by law, and these transitional provisions, if I’ve got it made, this is for clause 4 in new Schedule 1AA: “Certain CMT decisions made in interim period, and related agreements and orders made, have no legal effect and never have had legal effect”. I love that one because it’s actually saying the Earth is flat, essentially—that the world is such that that decision never happened, when, in fact, it did. Now, that is very much against the principle of retrospectivity.

Given that there is a limited number of cases that fall in here, what is the massive policy objection to saying, “Well, you got in under the law as it was.”, which is how it works? We generally like to think that this is the concept of the rule of law. The Minister may not be familiar with it, but the idea is that you apply the law as it stands and you don’t pull the legal rug from under people and change legal history, but that seems to be exactly what’s going on here. Can he please explain, in a principled way, why he can’t adhere to the principle that we don’t legislate retrospectively?

The other thing I’d like him to explain is—because I just can’t quite get it—if you’ve got legislation in train and you’ve gone through various steps, you’ve had questions about procedure, you’ve had questions about evidence, you’ve had setting-down hearings, and so on, what happens to all of those steps? Do those people have to go all the way back to square one and, essentially, file a new claim under the new regime, or can they use all of the work that’s been done to date? That’s quite an important one. I see he’s taking some advice. It’s quite an important question.

Perhaps the other adviser can listen to this one, because then the third question is this: if you fall into the sad category of someone who’s got across the finish line and then got told “Go back to the start.”, what is the status of the proceedings in the interim, because other than having the judge look at the evidence and apply the law, it looks like all the work has been done. The hearing has been had, and whilst the legal decision-making framework might be changed and you might need some legal submissions, surely you don’t have to adduce all the evidence all over again, because that work’s been done. Now, that doesn’t fit neatly within a transitional provision, but neither does saying that the cases that had been decided never had any legal effect.

There are a whole lot of questions: why are we being retrospective, what are we doing about interim decisions and interlocutory decisions, and what about those cases? What happens to all the legal work that’s been done in the cases which have been finalised?

There are a number of questions there, but in terms of where the date of taking effect came from—and this is in relation to the date that we had in June last year—I mean, in essence, the goal was to ensure that we had as much consistency with the rest of the vast majority of cases that haven’t yet come forward, to have a consistent test, but to recognise that those that had been concluded and granted before the date, we didn’t want to unscramble. That was the logic there.

In terms of having to go back to the start: no, it’s not our expectation that the cases that have been heard have to go right back to day one and start the whole process again; merely, that they would presumably need to reconsider or hear any extra evidence that’s required in relation to the amended test or the clarified test. It’s not going right back to the start.

Part 1 of the bill holds the real meatiness around what the meaning of “exclusive use and occupation” is, as well as the meaning of “substantial interruption”, and that’s included in new sections 57A and 57B in clause 7. My question to the Minister for Treaty of Waitangi Negotiations is that he directed that the amendment bill initially needed to be drafted at the end of 2024, which is before we had court decisions. I’m interested to understand the nature and the depth of the analysis that was undertaken for the substantive changes—the meaning of “exclusive use and occupation” and the meaning of “substantial interruption”. I would like to understand a little bit more around the timing and the depth of that analysis, given the fact that this bill was directed by him to be enacted by the end of 2024, which is before those decisions were taken by the court.

The development of policy, the drafting of legislation to give effect to that policy—it’s noted quite clearly in the regulatory statement that there were some pretty significant constraints put upon it, with tight time frames required to meet the Government’s objective of enacting the amending legislation before the end of 2024.

I’m interested to know why it is now, towards the end of 2025, if he has a view on that, and whether that extended time frame from what he initially intended actually enabled any further analysis or in-depth review of these provisions to occur. The indication in the regulatory impact statement is that the policy advice that Te Arawhiti was able to provide was consistently constrained. In fact, they note in the regulatory impact statement that they sometimes only had days. They specifically state they had days to turn around advice that has led to the parts of this bill, for the development of options, subsequent advice, even the Cabinet papers, and that there were very short consultation periods, sometimes only as short as a couple of weeks.

The concern that I have is that for substantial definitions such as the meaning of “exclusive use and occupation”, it appears, from looking through the regulatory impact statement, that the ability for substantive analysis was completely restrained. In fact, they note—and it may be that he has a reason for this, which I’d like to know—that the development of a regulatory impact analysis before Cabinet decisions on the broad policy intent was not able to be done.

Cabinet made policy decisions without a regulatory impact analysis actually being provided to them, and I would like to understand why that happened. The supplementary analysis came after Cabinet had actually taken the decision to proceed. The financial forecasting was not undertaken before Cabinet policy decisions on the cost of re-hearings for the six live High Court cases that both my colleagues Duncan Webb and Arena Williams have referred to. There was no forecasting of the financial implications, I understand, when that Cabinet decision was taken, or the costs associated with the anticipated litigation, so what’s that case?

Also, the analysis of compliance with international obligations and the potential inconsistency with the United Nations Declaration on the Rights of Indigenous Peoples—that was raised by claimants in the urgent Waitangi Tribunal hearing inquiry. Finally, the point: the wide stakeholder or public consultation to understand the scale or the significance of the issue and the extent to which the Court of Appeal decision might cause problems in practice. All of those things were not taken into account when Cabinet made the decision.

The point I’d like to make is that what this is all pointing towards—and I’d love to hear the Minister’s views—is that when significant decisions in Part 1 have been taken about the meaning of “exclusive use and occupation”, can he reassure New Zealanders that there was actually adequate analysis that took place, because it’s looking like all arrows are pointing towards this being simply a provision within the coalition agreement that was enacted without proper due analysis. Even in the regulatory impact statement, it actually specifically states the Minister’s understanding of Parliament’s original intent. It is not the original intent, but the Minister’s understanding of original intent was that the decision—and, Mr Chair, I intend to have another minute to finish off. I seek a second call, if that’s possible.

You can ask.

Mr Chair, can I have a second call to complete my—

The time has come for me to leave the Chair for the meal break, and the member may want to finish the question when she comes back, so the Minister is not under time pressure to answer. The committee of the whole House will resume at 7.30.

Good evening, members. The committee is resumed. When we—

Madam Chair.

Just a minute. When we broke for the dinner break, we were debating Part 1 and that is the debate on clauses 3 to 11, “Amendments to Marine and Coastal Area (Takutai Moana) Act 2011”. The question still is that Part 1 stand part, but before I give the call, can I please just ask, for my own preference, that you refer to the clause that you’re referring to as you do your presentation or ask your question. Thank you.

Thank you, Madam Chair. Thank you for this opportunity and also the engagement from the Minister for Treaty of Waitangi Negotiations; I want to acknowledge that. Some of these questions can get a little bit tricky—we are talking lore and law. In this instance, my question to the Minister—because I haven’t heard an answer to it yet—is whether the Minister has made it clear to the committee at this point in time whether or not he intends on supporting a number of the amendments that have been made.

I also want to speak to this particular amendment, which refers to new section 106(2)(b) in clause 10. The amendment under the name of my colleague Arena Williams looks to delete the words “and occupation”. It is in there, new section 106(2)(b) in clause 10: “had exclusive use and occupation of the specified area from the start to the end of the applicable period”. The first question is whether or not the Minister will support the amendment tabled by my colleague, which I think is a reasonable one. I did mention earlier in our proceedings that the word “occupation” is going to come up quite a number of times because the bill looks towards lifting the threshold, which we’ve continued to debate this evening. That’s the first question to the Minister.

The second one is slightly more tikanga-nuanced, if you will. We know that in a number of those settings in and around the takutai moana, a number of activities have happened and continue to happen there that are undertaken by iwi. I’m speaking in particular to the burial of tūpuna bones, and sites of significance, many of which are already classified through either the Department of Conservation or through Treaty settlements with the Government. I ask whether or not that actually meets the threshold of “occupation”, if you will, and, in particular, whether it was undisturbed for those iwi or hapū or whānau during that time. There are many places I can think of, in particular, in Te Tai Tokerau.

Another point I want to ask the Minister is this—he went to lengths earlier to clarify the Queen’s Chain; he spoke to that earlier, and he also made reference to the desire around aquaculture and resource consents, etc. I wonder if the Minister has got a view on the way that toheroa spat works. I’m not too sure if the Minister knows how toheroa spat works, but you might find the toheroa on the beach or closer to the waterline, but, actually, the spat finds itself in the sand dunes. I just wondered, despite the Minister’s reference to and explanation of the Queen’s Chain, whether or not what we’re talking about here with reference to the Minister’s words towards permits and resource consent but also aquaculture could include that particular harvesting and the aquaculture of the toheroa.

Those are just my questions for now for the Minister. Once again, that’s clause 10 in Part 1, around the amendment tabled by my colleague Arena Williams, around the deletion of the words “and occupation”, and then there are the matters that I’ve raised with respect to the use of the land, as well as aquaculture.

Thank you, Madam Chair. Just in relation to the question, I’m not of a mind to support the amendment that the member refers to, and I do thank the member for his advice on the matter of toheroa spat, which was indeed new to me.

Thank you, Madam Chair. I want to talk about the substantial interruption and changed test, and—

Which clause is that, please?

Sorry, it’s in new section 57B(c) in clause 7. This is the question of the interruption of the exclusive use and occupation. I’m particularly interested in the Minister for Treaty of Waitangi Negotiations’ explanation where the customary right is, perhaps, a seasonal or even an occasional customary right. Seasonal harvesting would be one, but others would be, for example, the use of the area for navigation by a waka for ceremonial purposes once a year or for tangi, or for something like. The definition, particularly in new paragraph (c), talks about any activity, including fishing or navigation, “carried out,—(i) wholly or partly in that area; and (ii) by a person, or persons, who did not belong to the group; and (iii) with … authorisation by or under legislation or otherwise lawfully:”.

Now, I guess, my question is: does that activity have to be kind of inconsistent with the customary right? If we have navigation in this coastal area that is also used for, perhaps, you might call it “ceremonial navigation”, then it would seem to be a lawful use which is non-exclusive, right? If you have, I don’t know, dragon boats going up and down for a dragon boat festival—entirely unrelated to tikanga, but it is wholly or partly in the area—by a person or persons who don’t belong to the group, and it is a lawful activity.

My question, therefore, is: is that the kind of thing which is supposed to show there is a substantial interruption of this customary right? It’s quite conceivable that there are customary rights which occur only once every few months or only once a year or conceivably once a generation, or even longer than that, but that doesn’t make them any less customary rights. To say that they’re interrupted by what, in some ways, would be considered kind of noise, activities of other locals going about their business in a way which isn’t actually inconsistent with the customary right, but, at the same time, uses the same area, wholly or partly, that don’t belong to the group, and it’s entirely lawful—so I guess I’m trying to ask: what do we mean by a “substantial interruption” when we’ve got other activities which are consistent with but use the same resources as the customary right? Thank you.

Thank you very much. I’m speaking to the exact same section, so that’s timely, isn’t it?

Or repetitive.

It won’t be repetitive, I can assure you, because one of the key challenges of substantial interruption—and it has been acknowledged in Canada and Australia, as well as here—is that one of the causes of substantial interruption, or the most likely cause in recent years, is, of course, acts of colonisation, the effect that iwi Māori haven’t been able to express their customary rights because they haven’t got access to the portion of the seabed that is theirs.

In regard to that problem, I have a proposed amendment, my tabled amendment No. 8, which proposes that, in clause 7, which my colleague was just speaking to, we replace the new section 57B in a manner that takes into account that the Crown would not want to be disadvantaging a claim to customary marine title based on interruptions that were clearly a consequence of colonisation. The wording I’m proposing is that in this Act, “substantial interruption” means “an interruption to the applicant group’s use and occupation of an area that was of such a nature, extent, and duration that it effectively severed the group’s connection with the area and that was caused by factors within the group’s control or by the group’s voluntary abandonment of the area”.

But it does not mean interruptions caused by confiscation of adjacent land by the Crown. It does not mean legislation, including the Foreshore and Seabed Act 2004; it does not mean the Crown’s policies that prevented or restricted Māori access; it does not mean interruptions caused by the establishment of ports, harbours, or other infrastructure without the group’s consent; and it does not mean commercial activities licensed by the Crown. None of those things should be able to extinguish on the grounds of substantial interruption. That is the amendment I’m putting.

To an earlier point the Minister for Treaty of Waitangi Negotiations made about the mischief that he is trying to contend with, or the interference—the likes of a marine farm was the example he gave. A marine farm should not be a thing that interrupts customary title. It is a commercial activity that may be permitted and may be consistent with it so long as it is by the consent of the iwi, but it is not an interruption. I wonder if the Minister could respond to that proposed amendment, which simply has the effect of making very clear that those interruptions I listed would not be grounds for substantial interruption.

I’m speaking in support of the tabled amendment from my colleague Steve Abel. I tautoko the interruptions that he’s listed and refer back to my previous examples of Whangarei-te-rerenga-parāoa in the harbour and the lack of our Māori landowners that exist around the harbour now because of takings through the Public Works Act, the harbour board takings, and how—

Can you just refer to the clause you’re speaking to, please?

The clause is clause 7, and the proposed amendment from Steve Abel is to new section 5(7)(b). He just read out previously the types of interruptions that Māori could actually suffer, which do happen and have happened, and we’ve experienced it. We can see the lack of Māori footprint around some of these places, but it does not mean that we don’t retain our ongoing connection—cultural, spiritual, and practical—to a place.

I used previously in my examples hauhake-tohorā [harvesting whales] and the ability to place rāhui in places of significance, particularly around the harbour. When things go bang in the night or something happens in the harbour, ko te Māori e whakatikatika ana i ēnei mahi, e awhi ana i te hapori [it is Māori who are correcting such activities and embracing the community].

Those are all demonstrations of both spiritual and also practical connections that we retain, despite not having our lands within our hands as iwi Māori because of the impacts of colonisation and loss of the foreshore and seabed—the land abutting.

I do have an amendment that I would also like to speak to, because I was getting so excited—thank you, Steve, for that great amendment that you proposed. It is my amendment No. 4, and I want to invite everyone to join me on page 6, in relation to clause 6. There was a new section in the amendment, which was section 9B(3)(b), and, specifically, section 9B(3)(b) is a sentence around Te Tiriti o Waitangi. What we have in this provision in my amendment is specifically about deleting that new section. My amendment No. 4 proposes to delete in clause 6 this new section specific to Te Tiriti o Waitangi because we already have it in the marine and coastal area (MACA) legislation of 2011, at section 7, and that is a better representation of how you can honour Te Tiriti o Waitangi in legislation.

The proposal to insert this new section really is quite unprecedented in terms of the way in which there’s a relegation of Te Tiriti o Waitangi within this legislation, because previously, in other bills, you see Te Tiriti o Waitangi sections. We have that within the 2011 legislation at section 7, which clearly articulates how the MACA takutai moana legislation in 2011 honoured Te Tiriti o Waitangi and demonstrated how the Crown will uphold its legislative obligations to tangata whenua and Te Tiriti. It is my proposal that we should delete this new section 9B(3)(b) in clause 6 because we should uphold and maintain the existing wording that we have in section 7 of the original legislation kia mana ai Te Tiriti o Waitangi [so that Te Tiriti o Waitangi is honoured].

The Waitangi Tribunal, in their report back on this issue, clearly articulated that there are breaches of Te Tiriti within this amendment with what is happening here. It is taking us too far back, and we’ve come too far along in this journey of honouring Te Tiriti that Parliament cannot just legislate away its obligations to Te Tiriti as the matua relationship between te iwi Māori and the Kāwanatanga, underpinned by He Whakaputanga, 1835.

My amendment seeks to delete that new section and honour the original intention, which is in section 7 within the legislation. It’s a beautiful piece of work. It really shows how the Government can and could, at their will, honour Te Tiriti o Waitangi. Kia ora.

Just briefly, in relation to Mr Steve Abel’s amendment, which says that interruptions caused by the establishment of ports and other infrastructure without the group’s consent, however that would be gained, wouldn’t be into stopping customary marine title being granted. I’d just invite people to imagine that if you have customary marine title in a spot where a port is and the ability to pass resource consents or not, then I think most New Zealanders could understand the difficulties that could pose for actually operating ports in this country, and so I won’t be supporting that.

I move, That debate on this question now close.

I think we are not quite there but I am alerting members, please, to come up with some original material. Thank you.

Madam Chair, thank you very much for the opportunity to take another call. I have mentioned the use of occupation amendment. There’s another amendment in my colleague Arena Williams’ name which refers directly to clause 7 in Part 1, and it looks towards the removal under Part 1 of new section 57B in clause 7: “replace every instance of ‘and occupation’ with ‘stewardship’.” I wondered if the Minister had given any thought to that word “stewardship”. We’ve spoken about occupation, but I’d like to hear from the Minister for Treaty of Waitangi Negotiations on whether or not stewardship isn’t something that he could consider with respect to making sure that this bill does work.

The Minister spoke to the use and the ability to have ports, etc. I wonder if I can take the Minister to another place with respect to that, and that is around the substantial interruption test. I want to take him to the Far North, and there is a place up there called Waimahana, which is private land all the way down to the beach. It is a secluded bay and it is opened up by the locals because it is the safest place for people to put their boats into the water. They do that as a bit of a public good. They say that, well, everybody can use that particular private land and come across the private land down on to the beach to cast their boats into the water, because every other bay around it faces directly out to the open ocean, which makes it unsafe to cast their boats.

I wonder if in this particular part, new section 57B(c) in clause 7, which says that substantial interruption includes that it “can be caused (without limiting paragraph (a)) by [the use and occupation carried out, or] an activity (including, without limitation, an activity that is or includes fishing or navigation) carried out—”. It’s a question for the Minister. I know it’s rather unique—well, it’s not unique, actually. There are lots of places around the country where you can do this, but this is specific because the land that leads up to that particular bay is private land, and I know that because my whānau are part-owners in that particular space. So I want to just make sure that in the good, kind-hearted nature of the locals that open the opportunity for people to cast their boats: Māori, Pākehā, or anyone, actually—mostly people from outside. I ask whether in doing so, they now, under this legislation, have hindered their opportunity to show the meaning of a substantial interruption moving forward.

Like I say, I know it’s a rather unique case in terms of this particular place, but I know it’s not unique around the country. That’s my question to the Minister.

Thank you, Madam Chair. Taking your guidance, I want to quickly bring the Minister to a number of questions that I have had in this part, which relate to his amendments on his Amendment Paper 380. I’m on page 14, and this is about the new Schedule 1AA and the transitional provisions that apply to cases, and I’m going to ask him about the cases that have been heard and that will need to be reheard since consideration of these changes began.

The Minister for Treaty of Waitangi Negotiations knows, because we were discussing this before dinner, that I am particularly interested in Ruapuke Island. That is, I think, the case that will be top of his list of cases where there is some clarity around that still meeting the test of a higher test. What we’re considering there is: what does the process look like for a case where it will probably meet the new test?

I want to ask him first in respect of his change to the interim period, which at new clause 4 in new Schedule 1AA says, “Certain CMT decisions made in interim period,”—so, say, Ruapuke—“and related agreements and orders made, have no legal effect and never have had legal effect”; what does that mean for the cases where other decisions have been made in reliance upon them, and has the Minister had advice about what decisions may have been made in reliance upon them? For example, customary marine area rights give rise to the ability for those people who are said to have those rights to participate in consultative processes that councils run around resource consent. That’s one sort of set of rights that you’re enabled to have. Those already exist in these cases, so I’m asking the Minister whether that phrase “as if they had no legal effect” in fact means that none of the decisions have legal effect and didn’t happen. Can councils rely on the consultations that they have used, or do they have to act as if any records that were created, any evidence that was created, in fact do not exist? Is that what the Minister is trying to create there?

I also want to ask in respect of things like taonga tūturu which are discovered in these areas. For example, in Treaty settlements, it is well understood the process for how taonga that are discovered in an area will then be notified to, and then a process worked through with, the Ministry for Culture and Heritage—those people who have rights in those areas to determine, in fact, what iwi or hapū has a relationship to that taonga because of their occupation of the land. Under a customary marine title finding of rights, these also exist. We’re talking here about the foreshore and seabed, and so, for many of these areas, they are traditional burial sites. It is common for sand dunes and other coastal areas, like caves, to be used for the storage of not only taonga but also kōiwi.

I’m asking the Minister here that for those rights that have been recognised through a customary marine title process that now purport to be extinguished by his amendment on page 16, are the arrangements that have been entered into by the Crown to give effect to those rights in the arrangements to do with taonga tūturu or kōiwi—what is the effect of those? Do consultations, evidence-gathering exercises, exercises in good faith, and negotiations between landowners or council have to be struck out? Is that the intention of the words “never have had legal effect”—what are we trying to get to?

I guess the question is what is the mischief here: is it the intention that once these have been retried, if those consultative processes and other arrangements that existed are retried and we have once again the recognition of the rights of the whānau of Ruapuke in their coastal marine area at Ruapuke Island, is it then that those other legal arrangements that were entered into from the date of the court finding are to now once again have effect? If those rights are reconfirmed as existing—which is what he said to me before the dinner break; he said that they wouldn’t go back to the beginning, but would have to be reheard—does he mean, then, that those can be re-established quickly, or is it that the rights that existed between the court’s decision and now will never have existed, and how far does that go? Does that go to evidence? Does that go to consultative processes? Does it go to relationship agreements? Does it go to memorandums of understanding? How far is he intending to cast the net of it having no legal effect?

Just in relation to that question, when this policy to overturn the Court of Appeal decision was announced originally in July 2024, the Government signalled, of course, right at that point that we would seek to have the legislation take effect from that point. Any arrangements that have been entered into would have been done in the knowledge that there was a risk that this legislation would pass and that the legislation would require those examples to be heard again under the new test. I think everybody would have gone into it with eyes wide open.

I move, That debate on this question now close.

I think we’re very, very close, and it doesn’t matter how loud you shout at me—I can still hear there are people wanting calls. But I am, even in the short time I’ve been here, hearing repetition.

Thank you very much, Madam Chair. I hear your advice against repetition, and I assure you that this is not a repetitive point. I’m looking at clause 10, “Section 106 amended (Burden of proof)”. The Minister for Treaty of Waitangi Negotiations made a point in his earlier responses that section 106(3) states that unless there is evidence to the contrary, non-extinguishment of customary interests will be assumed. But when comparing the current section 106 with the amendment, it is evident that while, legally, non-extinguishment remains assumed, the practical effect of the amendment does, in fact, shift the burden of proof on to Māori applicants.

It stipulates that applicants must prove that they have “had exclusive use and occupation” over the land since the application period “without substantial interruption,” since substantial interruption can include an extinguishment of title. The new section 106(2), in effect, mandates that the applicants have to prove that their customary interests have never been extinguished as to what would amount to a substantial interruption. Therefore, the practical effect of this amendment is that non-extinguishment is no longer presumed and is something that applicants must now prove. If it is genuinely the intent of the Minister to ensure that unless there is evidence to the contrary, non-extinguishment of customary interests will be assumed, then this current wording doesn’t achieve that intention.

I have a proposed amendment—my tabled amendment No. 9—that in clause 10,we replace the new section 106(2) with new wording saying that “in meeting the burden of proof, applicant groups may rely on any of the following: oral histories; pūrākau and traditional narratives; whakapapa and genealogical evidence; evidence of tikanga and customary practices; expert evidence from kaumātua, cultural practitioners, and historians; archaeological, environmental, and anthropological evidence; historical records, including Crown records, even where incomplete or created without Māori input; evidence of the group’s continuous identity in connection with the area; or any other evidence the court considers probative. The court cannot do any of the following: require a higher standard of proof than would apply to equivalent common law property claims, discount evidence solely because it is oral rather than written, or discount evidence because it does not conform to traditional common law concepts of property or occupation, nor require proof of continuous physical occupation where such occupation was impractical, inconsistent with tikanga, or prevented by the Crown’s actions; nor place the burden on applicants to disprove every possible interruption. The court must account for the following: the historical context of Crown colonisation and its impacts on Māori use of marine and coastal area”—

Excuse me, can I just point out to the member that this amendment has been tabled. You do not need to read the entire script.

Sure—no, that’s a fair point. I won’t read it any further. But I simply want to put it to the Minister that for the clarification of the burden of proof requirements, this amendment would make it clear—if it is genuinely the intent of the Government—to ensure that the default is non-extinguishment of customary interests. This amendment would make that vastly clearer and would put the burden of proof on the Crown to prove extinguishment, rather than on iwi to prove customary title. Kia ora.

I move, That debate on this question now close.

The question is that Hūhana Lyndon’s tabled amendment to Amendment Paper 380 to clause 6, replacing new section 9B(3), be agreed to.

The question is that Steve Abel’s tabled amendment to Amendment Paper 380 to clause 6, deleting new section 9B(3)(a), be agreed to.

The question is that Hūhana Lyndon’s tabled amendment to Amendment Paper 380 to clause 6, deleting new section 9B(3)(b), be agreed to.

Steve Abel’s tabled amendment to Amendment Paper 380 to clause 6, inserting new section 9BA, is out of order as being inconsistent with the principles and objects of the bill.

The question is that Hūhana Lyndon’s tabled amendment to Amendment Paper 380 to clause 7, replacing new section 57A, be agreed to.

The question is that Steve Abel’s tabled amendment to Amendment Paper 380 to clause 7, inserting new section 57AA, be agreed to.

The question is that Hūhana Lyndon’s tabled amendment to Amendment Paper 380, to delete clause 8(1), be agreed to.

The question is that Steve Abel’s tabled amendment to Amendment Paper 380 to clause 8, replacing new subsection (1A) of section 58, be agreed to.

The question is that Steve Abel’s tabled amendment to Amendment Paper 380, inserting new clause 9A, new section 59A, be agreed to.

The question is that Steve Abel’s tabled amendment to Amendment Paper 380 to clause 10, replacing new section 106(2), be agreed to.

The question is that the Minister’s amendments to Part 1 set out on Amendment Paper 380 be agreed to.

Point of order, Madam Chairperson. I’m just seeking clarification from the Chair. We’ve just voted on Amendment Paper 380 in the Minister’s name, and the closure motion was a closure motion to close the question on the debate on Part 1. Is that right, because in this Amendment Paper, where there’s still a Part 2 that’s yet to be—I’m just wondering if that’s all closed now, and whether or not—

No, no, no, it’s only the parts that apply to Part 1.

OK—perfect. Thank you, Madam Chair.

No problem, and can I just ask members that when you are casting your vote, can you just please say whether you are in favour or opposed. Thank you.

The Hon Dr Duncan Webb’s tabled amendment to clause 4(2), recital (5), is out of order as being inconsistent with a previous decision of the committee.

Tākuta Ferris’ tabled amendment to clause 4(2), after recital (5), is out of order as being inconsistent with a previous decision of the committee.

Arena Williams’ tabled amendment to clause 4(2) is out of order as not being in the correct form of legislation.

Arena Williams’ tabled amendment to clause 4(2), new subsection (5), deleting the words after “recognition of customary marine title”, is out of order as being the same in substance as a previous decision of the committee.

Arena Williams’ tabled amendment to clause 4(2), new subsection (5), deleting the words “of those provisions changed the effect that Parliament intends them to have, and”, is out of order as being inconsistent with a previous decision of the committee.

Arena Williams’ tabled amendment to clause 4(2), new subsection (5), replacing “Parliament” with “Hobson’s Pledge”, is out of order as not being in the correct form of legislation.

Arena Williams’ tabled amendment to clause 4(2), new subsection (5), replacing “Parliament” with “this National Government”, is out of order as not being in the correct form of legislation.

Arena Williams’ two tabled amendments to clause 5, new definition of “CMT Amendment Act”, are out of order as not being in the correct form of legislation.

Arena Williams’ tabled amendment to clause 5, new definition of “CMT amendments”, is out of order as not being in the correct form of legislation.

Tākuta Ferris’ tabled amendment to clause 5, inserting a definition of “tikanga Māori”, is out of order as being outside the scope of the bill.

Arena Williams’ tabled amendment to clause 6, new section 9A(1)(a), inserting words after “substantial interruption”, is out of order as being merely an attempt to criticise the bill.

The Hon Dr Duncan Webb’s tabled amendment to clause 6, replacing new section 9A(1), is out of order as being inconsistent with a previous decision of the committee.

The question is that Arena Williams’ tabled amendment to clause 6, new section 9A(2), replacing “specified” with “may be those noted”, be agreed to.

The question is that Tākuta Ferris’ tabled amendment to clause 6, section 9A, to insert new subsection (3), be agreed to.

The question is that Arena Williams’ tabled amendment to clause 6, new section 9B(2) replacing the words after “promotes”, be agreed to.

The Hon Dr Duncan Webb’s tabled amendment to clause 6 replacing new section 9B(3) is out of order as being inconsistent with a previous decision of the committee.

Tākuta Ferris’ tabled amendment to clause 6 replacing new section 9B(3) is out of order as being inconsistent with a previous decision of the committee.

The question is that Tākuta Ferris’ tabled amendment to clause 6, inserting new section 9D, be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 7, replacing new section 57A, be agreed to.

Tākuta Ferris’ tabled amendment to clause 7 replacing new section 57A(3) is out of order as being inconsistent with the principles and objects of the bill.

The question is that Arena Williams’ tabled amendment to clause 7, new section 57B, replacing every instance of “and occupation” with “and stewardship”, be agreed to.

The question is that Arena Williams’ tabled amendment to clause 7, new section 57B, deleting every instance of “and occupation”, be agreed to.

Steve Abel’s tabled amendment to clause 7 replacing new section 57B is out of order as being inconsistent with a previous decision of the committee.

The Hon Dr Duncan Webb’s tabled amendment to clause 7 replacing new section 57B is out of order as being inconsistent with a previous decision of the committee.

Tākuta Ferris’ tabled amendment to replace clause 8 is out of order as being inconsistent with a previous decision of the committee.

The question is that Arena Williams’ tabled amendment to clause 8, new subsection (1A) of section 58, be agreed to.