Ngati Tama Claims Settlement Bill

Part 1 contains the recital of purposes and the acknowledgments by the Crown of the wrongs done at Parihaka and elsewhere in the rohe of The ACT party does not wish to be seen to treat lightly the wrongs that were done, and we do not wish to be seen as arguing that there is no case for a settlement along the lines of the settlement signed in the deed of settlement and recorded in the acknowledgements in clause 6.

But the effect of the settlement and the effect of clause 6 appear to us to be quite significant in a way that nearly all New Zealanders now want this Committee to address. We believe that the principles of the Treaty of Waitangi, as a phrase in legislation, are thoroughly discredited. They have been used as talisman words—sacred words—that are supposed to shut down all debate. They are supposed to prevent further questioning. They are words that are used to show good intention in a way that has covered up all sorts of foolishness. They have, in the opinion of the ACT party, produced bad outcomes for Māori. They have led Māori into a preoccupation with the past and with redress for wrongs that can never be satisfied.

The acknowledgement in clause 6(1) states: “The Crown acknowledges that the wars in Taranaki constituted an injustice and were in breach of the Treaty of Waitangi”, which we agree with, “and the principles of the Treaty of Waitangi.”, which we challenge anyone to be able to establish. The treaty was a simple document that did not have principles; it had provisions, and they were sound provisions. Article 2 stated that property rights should be assured and that the Crown could not, and should not, take land without paying for it.

What happened in Taranaki was a very clear breach of article 2. That was all that was needed, but instead, this document goes on to talk about the principles. As far as we know they can mean whatever the speaker wants them to mean. They have been made to mean whatever the speaker wants them to mean in political debate. Accordingly, we think it is time for the Crown to know that it will not be acceptable for these kinds of things to appear in future documents. The only way to tell the Crown—because this Government does not care if it misuses legislation to put in slogan words—is to vote against the bill. To make it plain, we will keep voting against it until we pass legislation that can stand the sniff test. The first sniff test for legislation is: “Do you know what it means?”. We do not know what it means.

We also see other acknowledgments in subclause (4) and subclause (5). In each case our position is the same. Accordingly, we have moved an amendment to insert a clause 6A. They would record that although the deed of settlement and the recitals refer to the principles of the Treaty of Waitangi, for statutory purposes this Parliament is not attempting to require anyone to pay attention to them. That is something this Parliament can do, even if the Crown cannot. If the Crown signed the deed and wants to stick with the deed, it can. My amendment tries to say that the deed is amended. I have been advised that that could be challenged by the Chairman. Accordingly, my colleague Heather Roy has submitted a fresh proposal so that it simply records that for statutory purposes those words can be treated as if they were not there, because no one knows what they are.

This may well mean that our approach is misdescribed. Four years ago we were described as racist for suggesting that there should be an end date to treaty claims. When Derek Quigley’s bill went into that purpose, every party in this House screamed “racist”, including New Zealand First. Now it is settled wisdom. The National Party adopted for the end date the year 2008, which we had seen as an end date for claims. In its election policy last year New Zealand First talked of an end date, as did the Progressive party.

New Zealand First adopted a policy that treaty claims must end, that they should be full and final, and that there should be a stipulated date for them to end. We know that in this Chamber there are people who think that this should be a permanent process, that the treaty will always speak, that it will always divide New Zealanders on the basis of their ethnic inheritance, and that there will always be privilege conferred by the treaty on people who can trace the colour of their skin back to the earliest immigrants or to the near-earliest immigrants.

We think it is time for this Parliament to say that cannot be the basis of any durable settlement, and that this part and the other parts must be consistent with the view that this is it. Thereafter the members of the iwi benefiting from the settlements will see themselves as New Zealanders who have had a wrongful property claim settled. They must not approach their local councils, or any of their neighbours, from then on, saying: “We have the rights that you don’t have and we can influence the Resource Management Act in ways that you can’t. We can fish in a way that you’ll never be able to.” Those are race privileges, and ACT stands against race privilege.

This bill sets out to entrench privileges. I have to be fair. It is not right to say that in this case they are race privileges, because they are privileges to the governance entity for Ngāti Tama. It is Ngāti Tama that will decide who gets the benefit. Effectively, it is equivalent to a family incorporation getting a set of privileges. However, they will be perceived in the community as a form of race privilege. They will be perceived in the community in essence as special rights that transcend the powers and rights of the democratically elected bodies. Accordingly, even though our amendment at this point is to Part 1, which sets out the purposes and the acknowledgments, we want that amendment to infuse the approach to the whole bill so it is recognised that this bill marks the stage when New Zealand decided to stop using empty slogans and to turn, instead, to using the plain and fine words of the treaty. The treaty itself is something we can all welcome and be proud of. The so-called principles have been used as weapons in the hands of the politically correct, to beat everyone else into submission and to prevent proper scrutiny of legislation.

Accordingly, I do not accept that this House cannot act as I have proposed in my amendment, and simply say that when the agreement is ratified it will be on the terms that this House provides. I understand that there is an argument that the House and the select committee simply are not competent to change these agreements. If that is the case, then we should not be going through any of this process. We should not be having a Committee stage. I urge that the amendment in the form in which I have moved it be adopted. However, if that is not possible, then the next form to achieve a similar purpose is the amendment in the name of Heather Roy, which is the same as the amendment in my name but with the omission of the two references to the deed of settlement.

When the Committee votes on these matters I understand fully the desire for Ngāti Tama to believe that it is New Zealand acknowledging the injustice that occurred to them. That is done, but it does not mean that we perpetuate it or that we all fall into a pattern of rewriting history. Dishonesty in public affairs is what creates the room for this kind of injustice. The dishonesty of language that has been used in relation to treaty claims has got us into the sort of strife we are in now on the seabed and foreshore. This bill perpetuates it.

Part 5 refers to the preferential rights to shellfish quota, the preferential rights to the paua fishery in protocol areas, and the cultural redress properties. They all perpetuate the idea that there are some forms of relationship between Ngāti Tama and their land that are passed down by a genetic inheritance that others cannot share. It is time we put that behind us, too. Those of us who are here as New Zealand citizens should all be equal before the law, and this bill should not be recording some special status.

The CHAIRPERSON (Hon Clem Simich): I ask Mr Franks whether I am to understand that he has withdrawn his amendment.

No, I have not, but I was anticipating the possibility that you might rule that it was not valid.

The CHAIRPERSON (Hon Clem Simich): We have two amendments. The first one, in the name of Stephen Franks, is an amendment to insert new clause 6A. I rule it out of order.

I raise a point of order, Mr Chairperson. I wonder if you could explain this. As I understand it, it is pursuant to advice given to the Māori Affairs Committee on the way in which it should approach the review of Acts to ratify agreements. I am not sure of the status of that—whether that can bind this Committee in the way that it appears you may have been asked to rule.

If your ruling is pursuant to advice given to that committee, it does not seem to me that it has been made or given in a form that tells the Committee why a sovereign Parliament can then be constrained by an instrument that the Crown has signed, unless this is in relation to, or compared to, a foreign treaty.

I would say that the use of the foreign treaty analogy is incorrect. With foreign treaties we can assume that the Crown has no conflict of interests. The Crown will act only in the interests of New Zealand. It is proper then for the Committee to approach it as an all-or-nothing ratification. With an agreement with some of the citizens of New Zealand, the Committee should not regard itself as bound by what the Crown does. It is for the Committee to decide whether this agreement is in the interests of New Zealanders. It is not appropriate that we simply adopt, without explanation or debate, a ruling given to a committee so long ago.

The CHAIRPERSON (Hon Clem Simich): Yes, I should just give a brief explanation of that point. I understand what the member is saying. The point is that the member’s amendment is out of order, in my view, because it purports to amend an agreement reached between the Crown and other parties. That is the sole reason it is being ruled out of order. The advice given to the select committee is generic advice, to the effect that it is for Parliament to give effect, or not give effect, to the settlement, and to decide how it gives effect to the settlement. In the case of a bill to give effect to an agreement between the Crown and another party, Parliament should not insert conditions in the implementing legislation that are not acceptable to the two parties, except in exceptional circumstances.

It is my view that the member’s amendment, worded as it is, is out of order in that form, because a deed of settlement that is an agreement entered into between the Crown and another party cannot be amended—as I mentioned before—in a bill intended to give effect to it. I rule the member’s amendment out of order, and we will move to the second amendment in the name of Heather Roy.

I raise a point of order, Mr Chairperson. The first amendment I proposed was an amendment to the preceding clause, to clause 5. I have subsequent amendments that would omit the protocols that purport to influence the Government.

The CHAIRPERSON (Hon Clem Simich): Yes, there is indeed another amendment that is part of the member’s original amendment.

The question was put that the following amendment in the name of Stephen Franks to clause 5(6) be agreed to:

to omit paragraphs (a) and (f).