Maori Fisheries Bill

I am delighted to stand to speak in the Committee stage of this legislation. The National Party will be putting forward some amendments to the bill. The Minister of Fisheries has presented some as well.

Obviously, the bill went through a quite extensive select committee process. We toured the country, and we made some substantial changes to the legislation during the consideration phase, based on the submissions that we had heard. Most of those submissions agreed on a whole lot of points. There were six major ones that were consistently brought up: recognition of up and running iwi; recognition that coastlines agreements are likely to hold up the allocation; restrictions on the sale of quota; the conflict of interest between Te Ohu Kai Moana Trustee Ltd and Aotearoa Fisheries Ltd where they compete with iwi; iwi not being recognised in their own right; and the accountability of Te Ohu Kai Moana Trustee Ltd and Aotearoa Fisheries Ltd. I note that one of the Minister’s Supplementary Order Papers—and I acknowledge him on this—has addressed a number of those issues more extensively than the committee did, and I commend him for that.

We have some other issues that we would like to put to the Committee. One of them is in relation to the commitment of coastline to particular iwi groups. We want to make sure that that is clear in the legislation—or, at least, that the disputes resolution process is clearer and more assertive, I guess, in terms of defining coastal agreements, particularly historical ones in other settlements. That will be the first one.

The second amendment will be in relation to the appointment of Aotearoa Fisheries Ltd directors. Members may not be aware, and we are concerned, that there are five layers between Māori beneficiaries—those whom the settlement is supposed to be directed to, each and every one of them, and, from here, through their children and their grandchildren—and the Aotearoa Fisheries Ltd directors, and we will be introducing a Supplementary Order Paper that removes one of those layers so that there is more direct accountability.

Lastly, as was signalled in the debate on the second reading, Dr Wayne Mapp also has a Supplementary Order Paper in relation to the issue of iwi who want to withdraw their interest in Aotearoa Fisheries Ltd—particularly the deep-shore quota. So we will be addressing those issues.

The preamble in the bill talks about the historical intent of the legislation and how we have come as far as this in the 12 years following the settlement in 1992—which the National Party Government took a great and sincere part in, and was delighted to sign off. We will be questioning whether the intent of that sign-off back in 1992 has been followed through in the negotiations, the toing and froing, and the court battles that have occurred in the last 12 years that have led to the introduction of this bill, the submissions process, and the bill we finally have now. We will be continually questioning, through our Supplementary Order Papers and amendments, whether the intent of the 1992 settlement, as talked about in the preamble, has been fairly and rightly reflected in the legislation. We think it has, generally—there is no doubt about that—and that is why we have agreed with the majority report, but there are key areas where we do not think the intent has been reflected. Members will see in the preamble more specifically what the intent of that 1992 settlement was. It certainly was about empowerment of Māori, and it certainly was intended that all Māori, for all time, would be beneficiaries of the settlement. We believe that there are clauses and substantial provisions of this bill that do not empower Māori but, in fact, disempower them and separate them from their asset, and we will be addressing that.

Although my fellow caucus members have indicated support for the Maori Fisheries Bill, I stand to indicate that I intend to introduce a Supplementary Order Paper based around the issue of takiwā, and in particular the defined takiwā iwi—takiwā defining the deed of settlement and takiwā defining enactment. It is important to recognise those iwi who have already signed or entered into a deed of settlement with the Crown. This bill is all about an agreement that was made some 12 years ago between Māori and the Crown. I am sure that when those iwi signed their deeds of settlement with the Crown, they believed they were entering into an enduring settlement—something that would last for time immemorial. The bill, as it stands in relation to the defined takiwā iwi issue, suggests that those deeds of settlement do not apply to the contents of the bill, so New Zealand First will certainly be supporting the Supplementary Order Paper I will put up.

There are other issues with regard to the disaggregation of those groups who wish to be recognised as mandated iwi organisations separate from their iwi as listed in the schedules. We will certainly be commenting on the intention of those groups, particularly given that the Minister in the chair, David Benson-Pope, has provided a Supplementary Order Paper covering those issues. We do not have too much difficulty with the intent of the Supplementary Order Papers, but we will certainly comment on them.

In debating the preamble tonight, I begin by paying tribute to people like Doug Graham and Doug Kidd, former members of the House, who were visionary in seeing the opportunity to settle a treaty issue that for decades had been a huge drawback for New Zealand in terms of the management of its fisheries, and who, with the purchase of 50 percent of the interests in Sealord’s, were able to see their way forward and through to a ground-breaking solution to Treaty of Waitangi issues in respect of commercial fisheries.

I pay tribute both to the Māori negotiators and to my former colleagues, who were part of that agreement. But I also express some concern about where this bill will take Māori New Zealanders and members of the fishing industry. That industry is of vital importance to the New Zealand economy, and particularly to the community I represent in Nelson.

I note that the preamble states: “The enactment of this legislation will complete the implementation of the agreements in the Deed of Settlement ...”. I say to the Committee that I will bet whatever any member in this Chamber would like to bet that we will be back to amend the bill’s almost 290 pages of quite detailed law within a year, or at most two, and that we will be back many times over the next decade. The Minister in the chair, David Benson-Pope, should not kid himself that the bill will in any way be a complete implementation of the agreements of the deed of settlement. In fact, in a number of key areas the bill contradicts elements of that deed of settlement, and I join with the very competent fisheries spokesperson for National, Phil Heatley, in signalling concern about the convoluted governance structure that this Government will impose on Māoridom.

I have never quite been able to work out the Labour Party’s relationship with Māori. It paternalistically tries to do the right thing but, fundamentally, Labour does not trust Māori. It imposes paternalistic structures on Māori that will not let them exhibit their ownership rights over assets that Parliament should agree with Māori are theirs. I would love to hear a contribution from the Minister explaining how a five-stage, convoluted governance structure will serve the interests of Māoridom.

What is it that Labour believes about Māori that means they cannot own their own assets? Why is it that the Government has to tie them up in this sort of convoluted mess? My Nelson iwi will have a role in appointing some directors to a college, which will then appoint some members to a trust. The trust will then appoint directors to a company, and that company will finally have control of the substantive quota interests. What a bizarre set-up! If it were being imposed on any Pākehā or non-Māori property owner, we would all be standing up in Parliament and saying that it was an outrage and a mess. So why is it that this Labour Government wants to impose on Māori all those restrictions on what they can do with their assets?

💬 Phil Heatley: They don’t trust them.

I take the point. It is true that if Māori are trusted with their assets, then like anybody else they will sometimes mismanage and lose them. We have already seen that happen with treaty settlements. Some groups have been extremely competent, have built up their assets, and have grown them. Others have been less competent. It is no different for Māori than it is for anybody else, but it is a fundamental right of ownership to be able to take control and do one’s own thing.

I say that this preamble is wrong in saying that it completes the implementation of those agreements in the deed of settlement. It was never envisaged in 1992 that we would have this sort of convoluted mess.

The CHAIRPERSON (H V Ross Robertson): I call the honourable member, Dr Wayne—

💬 Jill Pettis: Don’t trust him. He would sell your grandmother’s false teeth.

I raise a point of order, Mr Chairperson. What do you think of those comments?

I raise a point of order, Mr Chairperson. I notice that the senior Government whip made some rude comments about my grandmothers, who are deceased. What is more, the member was interjecting while away from her chair. I ask for some order in the House.

The CHAIRPERSON (H V Ross Robertson): I thank the honourable member for his contribution. I was not aware that the member was referring to anyone in this Chamber, and for that reason I let it lie.

I raise a point of order, Mr Chairperson. That explanation addresses the first part of the Hon Dr Nick Smith’s point of order, which related to the specificity of the comments made. It does not address the second point of my colleague’s point of order. It is, I believe, a breach of the Standing Orders for members to make a comment in the nature of a debating comment whilst they are moving about rather than being in a seat in the Chamber. I would ask for you to rule on that matter, as well.

The CHAIRPERSON (H V Ross Robertson): The members are perfectly right on that particular issue: Speaker’s ruling 56/6 states that there shall be no interjections while a member is walking around.

I raise a point of order, Mr Chairperson. I will speak extremely briefly. Speaking sotto voce and making a comment to oneself is, I believe, quite usual in this Chamber. But if I offended the member, I am happy to withdraw and see an end to the matter.

I raise a point of order, Mr Chairperson.

The CHAIRPERSON (H V Ross Robertson): That point of order has been dealt with. Is this a new point of order? [Interruption] Order!

Yes, it is, Mr Chairperson, and that is the very issue I wish to address. Is it not unusual that as you are deliberating upon the point of order, a member of the Committee is indulging in persistent conversation across the Chamber? If that is so, I suggest strongly that she be brought to order.

The CHAIRPERSON (H V Ross Robertson): I thank the honourable member and refer the member on my right to Speaker’s rulings 19/6 and Standing Order 84(3).

This legislation, including the preamble, reflects a long period of litigation, negotiation, discussion, and dialogue involving the courts, various iwi, lawyers—some motivated, it seems to me, by gain rather than serious intent—and the Government. I know many of the people who have involved themselves in all of this, and I recognise that they have come to what they think is the best possible compromise. I guess the problem with all compromises is that they do not always reflect the best set of options but, in many ways, what people might argue is the least worst. National’s difficulty with this whole proposal is that it has departed too much from principle. In this regard, we are not primarily talking about the allocation formula—I understand why the Māori Fisheries Commission came to the view of, essentially, splitting the inshore quota on the basis of coastline of particular iwi, and theoffshore quota essentially on a population formula.

Our major concern is twofold. Firstly, the excessively paternalistic approach in essence does not trust people to manage their own assets. The case put by the commission, of course, is that the assets have to be protected on a generational basis. But I cannot see how that case can be properly made out because surely iwi have exactly the same interest and are in fact, I would suggest, probably even more powerfully motivated than a commission—now, of course, Te Ohu Kai Moana Trustee Ltd—and Aotearoa Fisheries Ltd to keep the assets within the iwi rather than an entity somewhat removed from direct control. That is our first major objection. It seems to me that there has been far too much regard held to protecting particular commercial interests that have motivated the way that the offshore quota is managed, so that it is removed from iwi and controlled by Aotearoa Fisheries Ltd, which, really, is all about protecting the viability of Sealord’s. That is the first objection, and National will be putting up a Supplementary Order Paper that deals directly with that on a principle basis so that only those iwi with a proven commercial record would get direct control.

The second issue, which will be raised particularly by Mr Heatley, is the whole issue of the layers of control—the multiple entities that cumulatively serve to remove direct iwi control of the entities involved in the fishing. In this instance we are not even talking about iwi ownership. The problem is that the owners do not even have the sort of control that one would expect a shareholder to have. Surely the proposal presented by the Government—because ultimately the Government had to endorse that of the Māori Fisheries Commission—should have provided the normal form of shareholder control, even if that meant some additional level of protection owing to the generational factors. It has failed at that level.

Finally, I would also like to note—because a Supplementary Order Paper is being tabled on this issue—that scant regard is paid to the issue of prior settlements. Why would we set up a whole new potential for iwi boundary disputes—coastline allocation issues—to be once again channelled through the courts—because that will be the effect of the proposals—for that to be finally determined?

I am very pleased to speak to the Maori Fisheries Bill. I hope that in the preceding speeches colleagues of mine have mentioned some of our reservations about this bill. These reservations will become clear as we progress through the many hours of the Committee stage that we expect the Chamber will take in its consideration of this bill.

During the debate on the preamble to the bill, I want to speak particularly about clause (8A), which is new and was inserted by majority. It is worth noting, firstly, that this bill is supposed to be a bill that sets up the regime for fisheries allocation to Māori from this point onwards.

Everyone knows it has been a very long road to get to this point. Clause (8A)—a new clause inserted by majority—in the preamble to the bill states: “The enactment of this legislation will complete implementation of the agreements in the Deed of Settlement between the Crown and Maori in respect of Maori claims to commercial fisheries, as outlined in the Preamble to that Deed and in the Preamble of the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992.”

What worries us is that this, which is supposed to be an end point and at the same time a commercial beginning, could well be just another step along the way in this very long discussion so far. One of the alarming things that we have heard at the Fisheries and Other Sea-related Legislation Committee in recent days is the repeated comment from various iwi groups that whatever settlement is reached in this generation is just for this generation. We have heard over and over again that many Māori view these matters as interim settlements, and it concerns us that the Government, it seems, with this bill, is in a position of not having strapped down that this is full and final.

If members want a further example of how things get pushed out and how new opportunities are created, the foreshore and seabed issue itself appears to do that. We have heard Māori talking about the confiscation of the sea from them and the economic opportunity that that provides. One submitter yesterday—only one, but a very significant submitter—suggested that the sea space that his particular iwi would lay claim to in a single chain—not a chain in measurement but a chain, if one likes, of marine licences along that coastline—would be worth some $40 billion to the tribe over a very short period of time, if it were able to be commercialised by them. I have to say that while those sorts of wild claims are out there, there can be no certainty at all that the legislation this House is being asked to pass will stick.

The trouble is that over the past 15 or maybe 20 years, we in this country have made genuine efforts to try to sort out all these issues, only to find that the ground shifts over and over and over again. No one will dispute that there are genuine grievances between the Crown and Māori that should be sorted out, but what worries me increasingly is the number of Māori leaders who are prepared to tell their people that they are not part of the Crown. They tell them that in New Zealand in 2004, they are not part of the Crown. Under our current arrangements, the Crown in this country is simply the people. We cannot have a Government trying to pass legislation in an environment where some people believe that they are owed a greater due by the rest of the people. In the ancestral sense, if one likes, in the grievance sense, yes, there are duties that have to be met, and they will be.

I would like to take up the issue regarding the historical setting that we see ourselves in with the Treaty of Waitangi (Fisheries Claims) Settlement Act in 1992, and also to pick up on Gerry Brownlee’s point, particularly his earlier point about precedent-setting. We in the National Party know that, although this Maori Fisheries Bill states in some clauses that it is restricted to the matters that it deals with and cannot cast any precedent on future Acts and legislation or past Acts and legislation, the structure set up under it will be the structure utilised in other settlements. In the case of aquaculture, we know that the give-away by the Labour Government of 20 percent of aquaculture space to Māori will utilise the same governance structures, allocation structures, and iwi business models that this bill uses. As the Government talks about seabed and foreshore being entrusted in the Crown, we know that it is going about negotiations with three different Māori groups throughout New Zealand on their own private settlements to do with the seabed and foreshore—unbeknown to all other iwi groups in the country. We know that those settlements will use a similar structure to what is outlined in this bill.

We talk about the patronising nature of this bill, about the distance between the Māori beneficiaries who are supposed to receive the settlement—the power, the monetary value, and the mana of the settlement—and a sum of the settlement assets, particularly those in Aotearoa Fisheries Ltd. I have talked about five layers. There are the Te Ohu Kai Moana Trustee Ltd board of directors, who select the Aotearoa Fisheries Ltd board of directors, with the Te Ohu Kai Moana Trustee Ltd directors having already been selected by the trustees of Te Kawai Taumata—that is three layers—who are selected by iwi representatives, and, of course, those iwi representatives are selected by the people. That structure is highly bureaucratic, and it will be utilised not just in this Maori Fisheries Bill but in the 20 percent aquaculture space give-away, as well. So any bureaucracy that Māori unnecessarily face through this legislation, or any patronising approach that Māori have to face through this legislation, they will also have to face when it comes to the aquaculture settlement or to any seabed or foreshore deal.

That is why this bill is so significant to the National Party. We want to see the bureaucracy and the unnecessarily patronising approach in this legislation removed, because all that they will do is give lots of lawyers lots of work amongst Māori, who will see their financial benefit disappear in the courts as they argue about 250 pages of legislation. Māori unfortunately will be forced into the position where they argue about clause upon clause—over 169 clauses. There are lots of subclauses, lots of layers, and lots of accountability. In fact, the accountability goes far above that of any normal mainstream organisation that Māori would have to appease.

I move, That the question be now put.

I just want to make a point with regard to the part of the preamble that refers to the Māori Land Court. One of the concerns I have is related to an issue that has been in the media and has attracted a lot of attention in this Parliament in terms of the Māori Land Court.

First, I refer to the responsibility that the Māori Land Court will have under this bill, particularly in the area of certain disputes that are to be referred to the court. My concern is that nothing in the bill makes reference to the allocation of resources in order for the Māori Land Court to be able to do that work. Already, under its present workload, the Māori Land Court is running behind. That certainly gives credence to its often-said description: “Taihoa the Māori Land Court!”. I want to make that point.

Secondly, I refer to the attention the Māori Land Court has been given by this Parliament, and I note the issue of disputes resolution. If the court is to deal with those issues, then what comes into question is who the judge is who sits on the bench to determine them. Given that there are a number of Māori judges, the comments that have been made about the recent actions of a particular Māori Land Court judge suggest to me that those same people will have to remove themselves from those deliberations. Therefore, the issue of resourcing the Māori Land Court adequately to deal with this issue becomes a matter of concern.

So I rise just to raise those two issues. Kia ora.

I move, That the question be now put.

I raise a point of order, Mr Chairperson. I want to raise a matter of order in the Committee. A great deal of this place functions on the basis that we have loose agreements and understandings about where things are going and what is supposed to occur. Everyone knows that a date is being organised for the third reading of this bill that will suit the large number of people who wish to be here for that purpose. I want to let you know that although the Labour Party may not wish to debate this legislation, other parties do, and under the Standing Orders we are entitled to speak up to four times on each part. Mr Chairperson, I think it would be unwise, in these early stages, to look for early closures.

The CHAIRPERSON (H V Ross Robertson): I thank the honourable member for his contribution, and I will consider all things on an equal basis when I make such rulings. I thank him for drawing that to my attention. I call the honourable member Phil Heatley—

How does that work! We will have another think about that, Mr Chairperson.

The CHAIRPERSON (H V Ross Robertson): Well, is Mr Heatley seeking a point of order?

💬 Phil Heatley: No, no, I was taking a call, as you well know.

I raise a point of order, Mr Chairperson. At the risk of offending my good colleague the member for Whangarei, I want to say that my understanding is that there is a loose convention that would have you at least allow the senior member of the Opposition present to take the first call on a part. Given that the deputy leader of the National Party is present in the Chamber and sought the call, I would think that perhaps, in those circumstances, and with no disrespect to my colleague Phil Heatley, Mr Brownlee should be—if I could be so bold—offered the call in the first instance.

The CHAIRPERSON (H V Ross Robertson): I thank the honourable member. I have made a mistake, because I have not actually put Part 1. Of course, under Speaker’s ruling 25/4, once I have called someone I cannot take the call away. But given that I did not put Part 1, because I took a point of order from Mr Brownlee, I will do so now.

Part 1 Purposes of Act, key concepts, and key iwi organisations