Third Readings

I move, That the Treaty of Waitangi Amendment Bill, the Broadcasting Amendment Bill, and the Maori Land Amendment and Maori Land Claims Adjustment Amendment Bill be now read a third time The Māori Purposes Bill (No 2) was introduced on 13 March 2002. The first reading debate commenced on 22 May 2002 and was completed on 10 September 2002. The bill was then referred to the Māori Affairs Committee for consideration, and submissions were called for. After careful consideration of the bill as introduced and the submissions received, the select committee reported back on 3 March 2003, with one amendment to Part 1, the part relating to amendments to the Treaty of Waitangi Act.

Māori Purposes bills are used to give effect to amendments to existing legislation that relates to Māori affairs and various matters in respect of Māori land and property. Perhaps the most important of the amendments to the Treaty of Waitangi Act are those that give chairpersons certain powers. The first of those is the power to replace a presiding officer or other member of a tribunal, and we have been through the amendments here today.

Only one amendment was recommended by the select committee during its consideration of the bill as introduced. The intention of the amendment, which was unanimously adopted by the select committee, was to ensure that only a member of the tribunal who is a barrister or solicitor of the High Court of at least 7 years’ standing would be qualified for appointment as an acting presiding officer. The bill now clearly provides for this. The amendment means that the tribunal will always be presided over by either a judge, a barrister or solicitor of the High Court of at least 7 years’ standing. I acknowledge the efforts of all the select committee members and the guidance the committee has provided to the House. I extend my thanks to the members accordingly. The other amendments to the Treaty of Waitangi Act clarify the position regarding three inquiries in which membership changes have occurred, namely the Hauraki, Kaipara, and Wellington inquiries.

The second Act amended is the Broadcasting Act. This amendment provides for technical amendments to accommodate the transfer of responsibilities for Māori broadcasting policy from the Minister of Broadcasting to the Minister of Māori Affairs.

The third Act amended is the Maori Land Amendment and Maori Claims Adjustment Act. The amendment to this Act increases the number of fishing licences to which Ngāti Tuwharetoa are statutorily entitled from 50 to 200. The current entitlement to 50 licences was set in 1926, when the Act was passed. I am pleased to move the third readings of the three bills. I commend the Treaty of Waitangi Amendment Bill, the Broadcasting Amendment Bill, and the Maori Land Amendment and Maori Land Claims Adjustment Amendment Bill to the House.

It is a bit of a relief to see this bill coming through and finally passing into law. I want to reiterate something I said earlier about an underlying issue that sits in behind these changes, particularly in terms of the validation of the three particular inquiries. It is the issue of a lack of resourcing and proper support for the Waitangi Tribunal, which has a huge job, as we all know, with a mountain of claims before it. Certainly, the tribunal has streamlined its processes, although that new streamlining is now being tested, and we will see whether it proves to have a positive outcome. But the tribunal has an enormous job to plough its way through the claims that sit before it.

Although both the previous Government and this Government sit ready and waiting to negotiate claims, trying to encourage claimants not to go through the tribunal process, the reality is that it is like the old saying—everybody wants his or her day in court. In the end, having waited over 160 years to get some justice for actions they consider to be totally unjust, it is a long shot to think that the majority of tribal claimants from around the country would come straight into negotiations. So there is an issue that underpins, or acts as a backdrop to these changes. It is this issue about a judicial forum of this country that has a big job to do—a big job for all New Zealanders—and is currently without the resourcing to do it.

In respect of the validation clauses in this bill, there will be one immediate effect at least, which will probably be a great relief to the presiding officer, Professor Gordon Orr, who sat on the tribunal hearing of the Wellington Tenths Trust claim. At the point of passage of this bill into law, he will probably feel he can release the Wellington Tenths Trust report that he has had waiting to be released for some time now. Hopefully, any disadvantage that the other two inquiries, Hauraki and Kaipara, have been under, through the necessity to replace members, is now removed. For the foreseeable future, we can see that, no matter how streamlined the tribunal processes are going to be, these claims will still take some time to come through, so there is provision to replace members in certain cases as well. It is a relief, I think, to have this come through.

We had a discussion during the Committee stage about when and how the powers of the chairperson should be exercised. The points raised by various members of the House were valid. They were issues that were certainly looked at by the select committee. The Government has moved to get over some perceived difficulties. On balance, it is absolutely proper that this House makes sure that there are checks and balances to ensure there is no abuse of powers. That is a big part of our job in the House. But generally speaking, the amendments that are being made to the Treaty of Waitangi Act are made in the context of the effective operation of the tribunal, to ensure ongoing and functional panels, to prevent the possibility of an inquiry having to start again, and to avert the potential for significant extra cost being incurred by both claimants and the Crown.

I make no comment on the other two bills. I just say that I am pleased that these changes regarding the Waitangi Tribunal have now been made and are about to pass into law.

New Zealand First’s views on supporting this bill and the amendments that have been accepted have been expressed in the discussions that have taken place in the House today. New Zealand First recommends that the bill move ahead from where we are today and make further progress, so that tribunal activities in the future can be streamlined further.

I have already talked at length with regard to Part 1 in the second reading debate and the Committee debate. The only comment I want to make about that is that I believe clauses 5A and 5B are a real mess. Nevertheless, it was important that the bill go through so that the claims that are sitting around—the Hauraki claim, the Kaipara inquiry, and the Wellington Tenths inquiry—will get published and we can progress things. But I ask the House to mark my words that the first time somebody is removed from the tribunal without his or her consent and seeks to challenge it, we will find the Courts criticising this House for passing law that is ambiguous, that we cannot even agree upon among ourselves, and that we simply throw to them rather than fixing it now.

Moving on from there, I want to address Part 3, because it is quite important and its effect has been understated. It is worth going back to the part of the Act that it has sought to amend, which is section 14 of the Maori Land Amendment and Maori Land Claims Adjustment Act. The provisions of that Act were a result of negotiations between the Crown and Ngāti Tuwharetoa. In particular, section 14 of that Act provided that for the purposes of giving effect to an agreement entered into under the provisions of section 29 of the Act: “(1) The bed of the lake known as Lake Taupo, and the bed of the Waikato River extending from Lake Taupo to and inclusive of the Huka Falls, together with the right to use the respective waters, are hereby declared to be the property of the Crown, freed and discharged from the Maori customary title (if any) or any other Maori freehold title thereto:”.

Lake Taupo and the Waikato River are in public ownership, and it was through the indulgence of Ngāti Tuwharetoa, who had legitimate claims concerning ownership of those bodies of water, that we are able to freely enjoy them. They are to be commended for that, even though it happened way back in 1926. The quid pro quo for them giving up those rights of ownership, which one must accept as being quite a substantial right, was, under section 2. It provided that “There shall be reserved to the members of the Tuwharetoa Tribe the right to fish for and catch for their own use any fish in the said lake that are indigenous to the said lake, but no such fish shall be sold except with the consent of the Board hereinafter mentioned”; and later, under section 9(c) of the Act, that “such members of the Tuwharetoa Tribe as are nominated by the Board hereinafter referred to shall be entitled to have issued to them, free of charge, licences to fish for imported fish in accordance with the regulations: provided that not more than 50 such licences shall be issued in any one year without the consent of the Governor-General in Council:”. It is that figure of 50 that we are now seeking to increase to the figure of 200.

At the time that the 50 licences were granted in 1926, the total number of licences in operation was 4,900, so that Tuwharetoa had 50 out of 4,900 licences. Today the Department of Conservation, in its 2000-01 provision of information, states that the current number of licences is 74,293—an increase of 1,500 percent—and Tuwharetoa have continued to have only 50 such licences. We are now looking to increase that to 200. It seems to me that if we had given Tuwharetoa a similar increase, they would be entitled to 1,300 licences today, being relative to the increase in general licences and in Tuwharetoa numbers, which have increased from an estimated 1,104 in 1926 to roughly 29,000 now.

Some have challenged whether customary rights are a power that can be enforced today, but this is not a customary right. It is important that the public understand that the right being granted today—the increase from 50 licences to 200—is not an increase in a customary right, but an increase in a statutory right. It is a right given to Tuwharetoa in return for them giving to the public of New Zealand as a whole, the whole of Lake Taupo and the Waikato River. I think we have done pretty well out of that deal.

The only concern I have relates to the comment made by the select committee in the commentary that the number of fish has decreased. I hope that the Department of Conservation and Tuwharetoa are working together to ensure that the indigenous fish population is environmentally sustained, and that whatever licences are given—and the number given generally obviously far outweighs what Tuwharetoa will use—they will not deplete the fishing resource further. I think it is important to take that into account. None of us wants to get into a situation whereby we are depleting our fisheries resources to the detriment of future generations. I therefore encourage Tuwharetoa and the Department of Conservation, insofar as they both have interests in the fishing resource, to work together to ensure that it is sustained.

I commend the legislation to the House. United Future will be supporting the third reading.

The Māori Purposes Bill (No 2) had thorough debate during the Committee stage in a way I have not seen on a 3-page bill in the time I have been here. I believe that I correctly summarise the debate by saying that ACT suggested that there was something a little unusual about the chairperson of the Waitangi Tribunal having the power to remove members of panels part way through a hearing, on grounds that were at his or her discretion, and which might turn on any circumstance that he or she thought was relevant, because none was defined. Then all around this Chamber, members who had apparently sat on the Māori Affairs Committee were saying: “No, that’s not what it says.” After a time it moved. United Future members were saying: “No, it doesn’t say that, because it doesn’t apply to removal; it only allows the appointment of extras.”—a bizarre interpretation if ever I have heard one. Other members started to have doubts, and eventually the Leader of the House, Dr Michael Cullen, proposed an amendment that would take out what are probably redundant words about the opinion of the chairperson of the tribunal and leave the provision otherwise as it stood.

The net effect is that of all the judicial bodies in New Zealand I am aware of, this would be the only one where a person who had been sitting on that panel could be removed by the chairperson of the panel after perhaps 6, 8, or 10 years of familiarity, because that chairperson had decided that it was not suitable for that person to render the decision. That is a disgrace to this House, to the tribunal, and to Māoridom. It is the bigotry of low expectations. Only in relation to Māori would this House be providing that people on an adjudicatory body, fulfilling judicial functions, could be removed by the chairperson of the panel, without any proof of misconduct, without any proof of unsuitability, indeed, without any proof of anything other than the undesirability in the chairperson’s eyes of the decision that was about to be released.

It is a deep convention in almost every rule-of-law country that judicial independence is protected by security of tenure. In most judicial areas, security of tenure means that the pressure to suck up, to curry favour, is removed by having no provision for reappointment. This tribunal does not have that right. Members do come up for reappointment, so there is already potential for Government pressure to procure tribunal decisions that the Government wants. Of course, that is not enough. Not only do we have the so-called streamlining that New Zealand First talked about—the streamlining of the tribunal by providing for members to be replaced in a hearing, which one would expect if they became sick, their family pressures got on top of them, or there was something else—but we now also have a position whereby streamlining has turned into sacking. That makes the tribunal the chairperson’s creature. It is a contemptible tribunal. It is an imputation on the mana of every member on it that amongst all the adjudicatory bodies, they are the only people who can be sacked halfway through. It is the only body about which I have ever heard the National Party and New Zealand First—both proponents of one law for all—say that that does not apply when it comes to a tribunal that is to adjudicate on Māori claims. When Māori claims are being heard, we do not have to have impartial tribunals, we do not have to avoid pressure from the Government, we can have anyone who is appointed—[Interruption]. I raise a point of order, Mr Speaker. I would appreciate—

💬 Mr SPEAKER: I am sorry; I was diverted. I know what the member was going to say. I will now have silence.

The excuse used by United Future for voting for this legislation was that it wanted to rush it through, after telling us that the courts would not be able to understand it. Parliament should be embarrassed about that. The only apparent reason is that there is some urgency to finish early. In the course of this debate, the Leader of the House, who is also the Minister of Finance, told us that this urgency would finish early. He said business would be finished well before the time allotted.

💬 Murray Smith: No, that is untrue.

Mr Smith, you are not the Minister of Finance.

💬 Mr SPEAKER: Neither am I.

I was addressing Mr Smith, Mr Speaker.

💬 Mr SPEAKER: The member can address only the Speaker.

Dr Cullen told this House that we were idiots, in effect, to be continuing to debate this provision when we could get home early. He said that we should not put it aside in the Committee stage and come back to it with a proper solution, because that might mean taking more time of the House, and we were going to finish urgency well before the planned time. Apparently, United Future thinks that is so urgent that it has to vote for this bill, even though it thinks it is damaging and against principle. Dr Cullen admitted that the purpose of this provision was to allow the sacking of members who did not want to go. He could not allow for consent, because they might not want to go. If they are not willing and able to recognise a conflict—which was his reason for saying that they needed to be removed—what are they doing on that tribunal?

There is a procedure in the second schedule to remove members who are unsuitable. It involves the Governor-General, as it should, to protect the independence of the tribunal, and here we had a senior Minister of the Crown saying that they might not consent. We had the National Party and New Zealand First going along with it, and only United Future, the Greens, and ACT saying that we should hang on a minute, because there was some deep constitutional issue, some question of individuals. The Greens voted for those amendments.

This provision confirms that the Waitangi Tribunal is not intended to be impartial—it can be a cabal of politically correct inventors of history. The “holocaust” was not just a flash in the pan; “holocaust” hyperbole is what this Government wants the chairperson of the tribunal to be able to perpetuate. This provision is a deliberate attack on the mana of each member of that tribunal. It means that when those members deliver a decision in future, they may well be suspected of having buckled to pressure—that if they did not deliver what the chairperson wanted, they could get the boot. That is what this Government, the National Party, and New Zealand First, have done to the Waitangi Tribunal. In future, if any of us think that a tribunal decision is wrong or a little puzzling, we can say that it was because its members were not impartial—that they were biased because they were afraid of losing their positions. That is exactly what this provision has done today.

We have an example. Dr Michael Bassett—competent, expert if anyone was, a Minister of the Government that produced the Waitangi Tribunal, with a deep understanding of the system—has been subject to a court application to remove him from a panel, and he was pressured to go from within that panel. What we have now is a bill that not only legitimises that practice but makes it systematic. In future, that can be done discreetly. Instead of having only three appointments to a panel in 9 or 11 years, any of those members can go on any panel until the chairperson of the tribunal decides that they are unwelcome, or that the line they are taking is not the official line, and then removes them. That is not only second rate; it is a kangaroo court.

The Greens will support this bill in the third reading, but not with as much joy as we had hoped. This afternoon the debate gave credence to the very real concerns that the Greens raised in the select committee about the clause that gives the chairperson a broad discretion to remove members of the panel. We were concerned then that the power could be used to take people off the panel for such reasons as being considered unfit. We were assured in the select committee that that was not the purpose of this clause, although we were so concerned that we ensured there was a statement in the select committee report about it. I have been pleased that other parties in this House—ACT and United Future, in particular—have also taken up that issue.

It is a real concern that a senior Minister of the Labour Government is prepared to stand in this House and describe members of the tribunal as being entirely unreasonable—so unreasonable that they would not be able to perform their function and would have to be removed by a provision and a means that is not acceptable in any other court in this country. That is a clear demonstration of the deep lack of respect that senior members of the Labour caucus hold for Māori and for that Māori tribunal, which has an enormously important role in this country. That is a very real issue that the Māori caucus needs to take up with its members. It is not something that should be taken lightly. That tribunal is one of the few means by which Māori have any control over their claims and the discussion of them. Under no circumstance should we be allowing it to be so badly disrespected and undermined by the Government in terms of its standing as a semi-judicial body.

That said, we are concerned about the provisions of the bill in the sense that one of the primary reasons members need to be replaced is because the tribunal is so severely underfunded that it is not able to complete its hearing within a reasonable period of time. There is no doubt that the claims need time for preparation, and that they cannot happen as quickly as perhaps in other courts. Nonetheless, in our opinion the delays are almost entirely due to underfunding and under-resourcing. The Green Party supports increased resources for the Waitangi Tribunal, including adequate resources for claimants to prepare and present their cases, and the increased transparency and accountability of the tribunal in that frame.

As a result of underfunding and subsequent delays, and the changes in membership that occur over long periods of time, a number of claims are waiting to be completed. The Wellington Tenths is one that has been discussed, but there are other claims, such as the Wai 262 claim, and I just briefly want to discuss that claim. The claim was nearly completed last year, but could not be, due to difficulties that this bill will in some part remedy. Members from over seven iwi in this country, including my own Ngāti Kahungunu—of which I am very proud—lodged the Wai 262 claim in 1991. Essentially, the claim is that tino rangatiratanga incorporates decision-making authority regarding all the rights and responsibilities attaching to indigenous fauna and flora; that the Crown has consistently denied that authority, and that Crown actions are a continuing breach of iwi tino rangatiratanga over indigenous flora and fauna.

The claimants are seeking from the Crown resources to enable a proper consultation, so that an overarching framework for the protection and promotion of mātauranga Māori is developed, but which is premised on Tikanga Māori and not on the commodification and privatisation of intellectual property. It is an extensive claim, and it will have wide-ranging effects for all New Zealanders, particularly as its basic kaupapa does not rely principally on the principles of the treaty, but on the rights of Māori as tangata whenua in this country. This claim gives all of us—every New Zealander—the opportunity to reconsider the privatisation or propertarian model, and instead apply other values more appropriate to the protection, management, and conservation of our environment and our indigenous flora and fauna.

The Greens are particularly concerned that this claim is heard and finally reported on. For too long the importance of the indigenous peoples in the conservation of biological diversity has been undermined and ignored. The Greens are committed to tangata whenua as kaitiaki, and we welcome the application of indigenous values and kaitiakitanga to the conservation framework. In our view, it is only through cooperation between tangata whenua and the conservation movement that we will be able to truly restore and rebuild the treasure that is our collective natural heritage. In that respect, there is a significant connection between the environmental movement and tangata whenua—as long as kaitiakitanga is respected and becomes integral to the process. The rights of tangata whenua to control, manage, and develop mātauranga Māori must be recognised at both a Government and community level. The Greens look forward to the report on the Wai 262 claim, which will be enabled through the provisions of this bill. We are pleased that it will be completed sooner, rather than later.

Now we have heard it all, and I am very glad that those statements, made not by the previous speaker but by her predecessor, have been made. At election time, this Parliament and this country were told by the party that had zero tolerance on crime that it was going to be tough—the party that a couple of days ago could not find support even for the boy racer bill. But now that party has stood up in this House and expressed reservations about appointment procedures. That party that did a rort, did the expulsion deal—the non-expulsion deal—on one of its members so that it could hold on to $111,000 of parliamentary funds.

💬 Mr SPEAKER: That is not relevant to this debate. There are three bills. I will put the question in three parts, as I promised.