Maori Fisheries Bill

When we were previously debating Part 2, I mentioned to the Committee that there was a great deal of interest in Supplementary Order Paper 253, which I had submitted to the Committee, and that members were researching. It is to do with the appointment of directors of Aotearoa Fisheries Ltd. A number of iwi came to the Fisheries and Other Sea-related Legislation Committee during the submission process, and said: “Our people feel isolated from the activities of Aotearoa Fisheries Ltd. That particular company structure generates huge income currently, it has the potential to generate a huge income in the future, and it is a strategic asset of individual Māori and collective Māori in whānau, hapū, and iwi groups, yet we feel isolated from it.”

At the moment, as it stands, the directors of Aotearoa Fisheries Ltd are selected by Te Ohu Kai Moana Trustee Ltd directors, who in turn are selected by Te Kāwai Taumata trustees, who in turn are selected by an iwi electoral college, which in turn is selected by Māori from individual iwi. In other words, there are five layers between individual Māori beneficiaries of this settlement and the directors of Aotearoa Fisheries Ltd. My Supplementary Order Paper cuts out one significant layer, and that is Te Ohu Kai Moana Trustee Ltd.

What I am saying—and members will see this in the Supplementary Order Paper—is that, given that Te Kāwai Taumata select the directors of Te Ohu Kai Moana Trustee Ltd, which is its sole responsibility, why cannot Te Kāwai Taumata also at the same time select the directors of Aotearoa Fisheries Ltd? Rather than selecting the directors of Te Ohu Kai Moana Trustee Ltd and having them choose the directors of Aotearoa Fisheries Ltd, why does Te Kāwai Taumata not do that directly? The Supplementary Order Paper is a mechanism that addresses that particular issue. So that would take away one layer.

Members will note that I have not introduced any amendments in the Supplementary Order Paper that ask for the reporting-back mechanism to go through Te Kāwai Taumata and avoid processes that would be overseen by Te Ohu Kai Moana Trustee Ltd. In fact, by leaving out those clauses, I have left the responsibilities for ensuring there are audits of Aotearoa Fisheries Ltd—that is Sealord’s, and so forth—and that accountability and the reporting-back mechanism within Aotearoa Fisheries Ltd still go through Te Ohu Kai Moana Trustee Ltd. There is no reason why Te Ohu Kai Moana Trustee Ltd cannot continue with those particular functions. So I am happy for it to be involved in the auditing, and the overseeing of accountability and of the reporting back. But what I am not happy with is it being involved in the appointment of the Aotearoa Fisheries Ltd directors. The question has to be asked: why is it involved in the appointment of those directors?

In amongst the clauses there is some check to ensure that a chairman of Aotearoa Fisheries Ltd cannot be a chairman of Te Ohu Kai Moana Trustee Ltd, and I think that is great, I acknowledge that, and we support it; that a deputy chairman of Aotearoa Fisheries Ltd cannot be a deputy chairman of Te Ohu Kai Moana Trustee Ltd, and I also applaud that; and that a deputy chairman of either cannot be a chairman of Te Ohu Kai Moana Trustee Ltd or Aotearoa Fisheries Ltd, and we applaud that. But we think it should go even further. The directors of Te Ohu Kai Moana Trustee Ltd should not select the directors of Aotearoa Fisheries Ltd. They should not select the directors who will run Sealord’s. In our view, there is no reason why this particular body—this college, Te Kāwai Taumata, that selects the board of directors of Te Ohu Kai Moana Trustee Ltd—cannot also select the directors of Aotearoa Fisheries Ltd.

Why should it select the directors of Te Ohu Kai Moana Trustee Ltd, and Te Ohu Kai Moana Trustee Ltd, in turn, select the directors of Aotearoa Fisheries Ltd? We can take out a whole layer between Māori beneficiaries on the ground, who should receive the benefits of the settlement, and a major settlement asset, which is Aotearoa Fisheries Ltd.

That is the basis of my Supplementary Order Paper, which I commend to the House. Certainly, if any questions are raised by other speakers, I will seek another call to address those. I do want to emphasise the fact that the amendments in the Supplementary Order Paper refer to the selection of the directors of Aotearoa Fisheries Ltd. They do not address the working back of the accountability back through Māoridom, at all. I do not see it as the role of Te Kāwai Taumata to be involved in auditing, motivating accountability, and motivating the report back. Te Ohu Kai Moana Trustee Ltd can still do that through the latter clauses of Part 2.

But I do see it as the role of Te Kāwai Taumata to appoint the directors of Aotearoa Fisheries Ltd. In fact, if one can argue strongly that that particular electoral college, Te Kāwai Taumata, is in a good position to select directors of Te Ohu Kai Moana Trustee Ltd, then one can certainly argue that it is in a position to select the directors of Aotearoa Fisheries Ltd. I cannot think of any good reason why that electoral college cannot do that. I know that individual Māori beneficiaries and iwi around the country will applaud the idea of having a much closer association with the most significant asset, as a whole, in this settlement. Of course, that most significant asset is reaching close on $300 million to $400 million worth of value. That is not just in quota shares, but in buildings, trucks, fishing vessels, and all sorts of assets. I cannot express enough the anxiety out there amongst Māori that they need a close association with and close accountability to the directors of that particular company. As members will see in the Supplementary Order Paper, I am addressing clauses 23 and 24, and clause 40 in particular.

The Green Party has put forward Supplementary Order Paper 260, which proposes two amendments to Part 2. The first is to omit clause 38(1)(b), and relates very closely to the Greens’ amendment to clause 15 that was lost by only a few votes. Clause 38(1)(b) enables Te Ohu Kai Moana Trustee Ltd to make or amend rules “that affect the criteria or other requirements applying to the constitutional documents of mandated iwi organisations ...”.

Earlier, the Greens expressed enormous concern at that power being provided to Te Ohu Kai Moana Trustee Ltd, which enables it to make any changes to the constitutional requirements or arrangements of mandated iwi organisations. There is no time limit on the use of that power, so Te Ohu Kai Moana Trustee Ltd can make changes to the requirement that a mandated iwi organisation has to meet, at any time until the organisation applies for status or recognition. Those changes can be made at the time a mandated iwi organisation applies for recognition, and at any time after it has already received recognition, as well as its assets. That means it is possible that a mandated iwi organisation will, time after time, continually have to amend its constitutional requirements and arrangements, to ensure it is able to access the assets that form a fundamental part of the settlement in the bill.

The settlement deed that led to the creation of this bill after a considerable number of years was designed to enable iwi to have control over their fisheries and fisheries assets, but the power that Te Ohu Kai Moana Trustee Ltd is given in this bill means that, in the end, it will have a considerable amount of control over the way mandated iwi organisations operate. Mandated iwi organisations are responsible for managing the asset-holding companies that, in the end, hold their fisheries assets. Te Ohu Kai Moana Trustee Ltd is also the sole voting shareholder of Aotearoa Fisheries Ltd, which is the company that, in effect, will hold 50 percent of the settlement assets that were designed originally to be distributed to iwi. That will put the asset-holding companies of the mandated iwi organisations and Aotearoa Fisheries Ltd in direct competition, in a very vulnerable and volatile industry. This bill also gives the sole voting shareholder of Aotearoa Fisheries Ltd the power to alter the constitutional arrangements of its competitors.

That is not good law. There are no restrictions on that power. As I have said before, I do not necessarily expect Te Ohu Kai Moana Trustee Ltd to abuse that power but, none the less, the opportunity for that is there in the bill. If there were some means of providing some form of restriction on the use of that power, a greater restriction on its use, then perhaps it might be justifiable in the context of ensuring that mandated iwi organisations have a certain set of requirements and can then get their fisheries assets. But there is no justification for allowing Te Ohu Kai Moana Trustee Ltd to continue to have that power after the mandated iwi organisations have already been established. All that does is put the mandated iwi organisations in an incredibly vulnerable position of never knowing when the goalposts are going to be changed, and of always having to keep in reserve the possibility that they may have to rearrange their constitutional arrangements. There is some provision for mandated iwi organisations and iwi to know about those changes before they are made but, in the end, it is still Te Ohu Kai Moana Trustee Ltd that will make the final decision.

The Greens do not consider there is any justification for Te Ohu Kai Moana Trustee Ltd to have such an unlimited, unfettered, unilateral power, so we urge members to support our amendment to clause 38. That will ensure that Te Ohu Kai Moana Trustee Ltd can still make and change rules about procedures around settlement quota, can still make rules about access to iwi registers, and can still be capable of establishing the rules prior to the recognition through the bill of mandated iwi organisations, but it will also ensure that Te Ohu Kai Moana Trustee Ltd has no ongoing, unlimited, and unfettered power to continually change the rules.

The ACT party opposes all this legislation. We particularly oppose Part 2, which is under discussion at this time. Anyone listening to this debate, and anyone in the Chamber who has not gone through the detail from the Fisheries and Other Sea-related Legislation Committee, would have already come to the conclusion that Part 2 establishes an extremely complex, multi-tiered, convoluted commercial structure. One surely must ask the basic question of why we cannot use normal commercial law to deal with these company structures. Instead the Crown is legislating for convoluted, multi-tiered, cumbersome structures in a commercial sense, that confuse everyone who looks at them. Iwi after iwi told the select committee that they do not want them. Inevitably, the Crown will end up as the meat and mustard in the sandwich. When some of these iwi organisations fail—and they will—everyone will say: “Oh, we failed because of these burdensome structures imposed on us by Parliament.” One would have to say that is a legitimate position for people to take.

Another aspect is that, along with these iwi electoral colleges, there are all sorts of unique situations. In any commercial organisation where there is discontent, the discontented leave. They vote with their feet. The problem with this structure is that malcontents are locked in. There will always be malcontents in the commercial world, and under this structure they are locked in for all time, under a structure they particularly did not want or embrace and with thousands of excuses as to why it will not work or deliver in an optimal manner. What we do by imposing a structure of this nature, is we diminish the value of the asset. That is perhaps the most pernicious aspect of this bill. It diminishes the value of the asset. That is a real problem in itself.

The ACT party goes a step further, as do Ngāi Tahu, actually. They are saying it is their property, they want to be left to get on with the business, they want to use commercial law, and they do not want all these encumbrances put in their way. They go a step further and ask why they cannot transfer the asset. In other words, if they want to ditch one load of species quota, because in a commercial sense they see problems on the horizon, or if they want to invest in aquaculture, they should have the flexibility and freedom to maximise and optimise the use of that property. But this bill specifically precludes that from happening. They are locked in. They cannot use the asset and they cannot exit. Any malcontents are locked in. It is not a good sound commercial framework.

I would have hoped that from the outset, having finally delivered a framework for the settlement of the Māori fisheries successful claim, pursuant to article 2 of the treaty, we would leave in place a framework that optimised the chance of it being successful. In this bill there are all manner of barriers and problems that will actually justify excuses and all the other problems that go with it. I could, for instance, run through the multilayered lists of various company structures. They are all there—from clause 20 through to about clause 100. They are extremely complex. Various parties feel aggrieved that their interests will not be protected. The electoral college is distorted.

This bill is a recipe for ongoing debate, and that comes back to one of the basic inherent problems, whereby we are trying to provide for a communally owned, or collectively owned, property right. But this bill is one of the worst governance structures that could be put in place for a communally owned property right.

The substance of the comments I intend to make reflect on subpart 4 in Part 2, and they are relevant to Te Pūtea Whakatupu Trust and Te Pūtea Whakatupu Trustee Ltd. Prior to making comment on subpart 4, I invite the Minister, when he does take a call, to give some consideration to either affirming or otherwise the comments I might make in that regard.

Before I do that, I say that I do have some sympathy with one part of the Supplementary Order Paper put forward by Green member Metiria Turei. It would be helpful if the Te Ohu Kai Moana Trustee Ltd were given a sunset clause relevant to its power of intervention. Whether or not that was for 10 years I would not much mind, but the giving of a clear end point to the period when the trustee could intervene on the mana of mandated iwi organisations after they had struck their constitutions, seems eminently admirable.

The next issue I want to discuss is the issue raised by ACT party member the Hon Ken Shirley. The reality is that Douglas Montrose Graham and the Rt Hon Jim Bolger struck this deal—also known as the “Treaty of Wellington”—in the dead of night and, as usual, along with many difficult, varied, and silly things the National Party has done in its chequered history, it is up to this Labour Government to fix it. We are in the process of doing that.

The second point I make is that the settlement entreated Māori to engage and draft a bill, then refer it to this House, and I say to the Hon Ken Shirley that that is what has happened. Māori have referred this documentation, with all its detail, to this House for the conclusion of this settlement. So members should not look at this Parliament or at this Government; they should look at the negotiators who actually drafted this bill—over 12 tortuous and long years of litigation, and worse.

I turn now to subpart 4, but more particularly to clause 65. I note that the Minister, under Supplementary Order Paper 255, has amended the same. For the benefit of the Committee, and for the benefit of any judge who may care to look at the definition of this purpose—purpose being the ultimate driver in the heart and soul of the essence of any trust—I will read my understanding of what the intent of the purpose clause about Te Pūtea Whakatupu Trust is: “The purpose of the Te Putea Whakatupu Trust is to hold and manage the trust funds on trust for and on behalf of the beneficiaries under the Deed of Settlement, in order to promote education, training, and research including”——and this is where the Supplementary Order Paper deletes and adds words—“matters that relate to fisheries, fishing, and fisheries-related activities, but not in a manner that could adversely affect the charitable status (if any) of the trust.”

The intent of this purpose clause clearly has a twofold test in terms of the purpose. Firstly, it is wide in order to promote education, training, and research. Notwithstanding that, it can include matters that relate to fisheries, fishing, and fisheries-related activities. So there is a twofold test for the purpose provision and to that extent, if that is the extent of the purpose of the Te Pūtea Whakatupu Trust, I commend it fully. I commend it fully on the basis that this particular issue has been to the Privy Council twice, and our acknowledgment that this settlement is, in the final essence, for the ultimate benefit of all Māori. It is a vehicle and a tool to build bridges between iwi and others who do not necessarily engage fully in the iwi politicisation process.

I turn finally to clause 69, “Requirements for appointment of directors”, which concerns the appointment of directors to Te Pūtea Whakatupu Trust. There are two tests in terms of appointment. The first test is for Te Ohu Kai Moana Trustee Ltd to go to the National Urban Māori Authority, and the second, by way of clause 71A(3) in Supplementary Order Paper 255, is to refer to other Māori-related organisations in urban areas. The intent of that is to make it quite clear to Te Ohu Kai Moana Trustee Ltd that the directors are to be appointed out of engagement and consultation with those groups, specifically. Those are the two tests.

So under this subpart 4 the purpose is reasonably wide, but it is tied into the promotion of education, training, and research. The last thing that tens of thousands of Māori babies in cities might want to be excited about, is going fishing.

Part 2 deals with the establishment and review of new entities. Of course one has only to look at the first part of this part to see why it is that the National Party has serious reservations about this bill. It is bureaucratic, it is patronising, and even though Phil Heatley and I, who represented the National caucus on the Fisheries and Other Sea-related Legislation Committee, worked, I think, in a reasonably consensual manner with members of the committee, that does not get over the fact that this legislation will go down in history as even more bureaucratic than the bureaucracy itself.

In my mind it should signal to Māori that this legislation represents this Government to a T. Everything is to be centrally controlled, and that is basically what happens here. The bigger part of the asset stays with the central body. The layers of bureaucracy are such that they separate by times six the actual owners of the asset from a significant part of the asset itself. I am surprised that John Tamihere, who is the small business expert and the Minister for Small Business—which should indicate that he also cares about big business—would be party to such legislation. As a member said earlier, this is the most convoluted, complicated legislation one would see in this Chamber. Therefore, it is no surprise that it is a Māori bill, and why should we be surprised, anyway?

Just to comment on John Tamihere’s issue in relation to the urban trust, as it is commonly referred to, and the issue of fisheries-related activities, I hope that the trust does keep in mind that that is the genesis of this pūtea. It comes from fish and the property in fish. We do not want the trust to start treating the allocation that comes to it as a welfare cheque. The trouble I have with Minister Tamihere and his ilk is that they always seem to be focused on dependency and wanting these things for health, welfare, and education. That is not the genesis of this asset and I hope that the urban trust keeps its mind on getting young people trained to participate in an industry that is critical to our economy going forward. It is so now, and it will be going forward.

I support my colleague Phil Heatley’s Supplementary Order Paper. He is quite right and he has set the matter out very clearly. From my point of view it is heartbreaking that Māori people are so separated from their asset. They are also separated from having a direct say on who sits on Aotearoa Fisheries Ltd. Aotearoa Fisheries Ltd is the flagship organisation of this asset and it is utterly tragic that their input into who sits on it is whittled down in the way it has been.

Mr Heatley’s Supplementary Order Paper, which takes out one layer of the appointment process, is admirable. I think the Government should support it. If the Government really cares about the people on the ground, whose asset this is, actually getting a say on who is running the flagship organisation, then it should support it. It should work to cut out at least one layer of bureaucracy; otherwise it is patronising and it is insulting. What other set of companies or trusts would one find where the owners of the asset are so far removed? It flies in direct contravention of proper commercial practice, and it says to iwi that we do not trust them and we will put in as many layers as we possibly can to keep on top of them. The National Party rejects that.

We realise that this measure has been a long time in gestation—12 years—and we certainly see the need for legislation to come to this Parliament, but this is the worst piece of legislation one could find.

I am pleased to take a brief call, first of all to address the issue of the complexity of the legislation, which has been mentioned by three speakers today. It is important to reinforce publicly the reasons for that complexity. As the previous speaker has just said, this debate has gone on for 12 or 13 years. One of the reasons for the complexity, both in the legislation and in the management regime, is to provide the protections that iwi themselves considered appropriate in terms of the governance and allocation structures.

I think that some of the comment made in the previous debate last week, and again in the session so far this afternoon, has been a little short of the mark. I respect the work that the select committee did and I will talk more about that in the third reading, but let no one in the Chamber forget that the complexity of this legislation is for one reason and one reason alone—those people who are the beneficiaries of these assets have made it very clear that those protections are required by them.

In respect of the comments made by my colleague Minister Tamihere earlier, I am happy to reinforce the interpretation and the comments he made about the purpose of Te Putea Whakatupu Trust. Indeed, it is a wide purpose. Its prime purpose is education, training, and research, and in a secondary way it is clearly able to involve matters that are fisheries specific, but that detracts in no way from the prime purpose of that operation.

Additionally, on Supplementary Order Paper 260 the Greens are putting forward a second amendment to clause 50. Clause 50 sets out how the voting shares in Aotearoa Fisheries Ltd are to be distributed. Currently, it provides that Te Ohu Kai Moana Trustee Ltd is the sole recipient of the voting shares in Aotearoa Fisheries Ltd. The amendment put forward by the Greens is that the words “Te Ohu Kai Moana Trustee Limited” be omitted from subclause (1) and substituted with the words “mandated iwi organisations in equal shares”. Fundamentally, we believe that if 50 percent of the assets of the iwi are to be held by a centralised company, then it is absolutely critical that it is the iwi that controls the voting shares in respect of what happens to the company, not, instead, some other organisation that is at least three steps away from the iwi.

The argument in favour of Te Ohu Kai Moana Trustee Ltd having those voting shares is that iwi will not be able to manage that responsibility effectively themselves; that somehow they are so entrenched in their own personal dynamics that they will not be able to exercise their voting responsibilities in a way that is best, and ensures the best, for the company as a whole. It is argued that they will use their influence and their voting influence to shore up their own interests, therefore ensuring that, at some point in the future, the company will implode because the people concerned will not be able to agree or get on with the job in hand. Of course, that is an incredibly paternalistic and, I would go so far as to say, racist approach to the ability of iwi Māori to manage their assets.

Iwi Māori have held shares in companies and incorporations and have managed trusts in all sorts of organisations for years and years, and they have been doing a very good job of managing those assets, primarily around farming and forestry, in incorporations and in trusts. They have been doing a really good job of building on those assets and making gains wherever they can for their economic advantage. I myself have been a beneficiary of moneys that have come from a farming incorporation held collectively by my iwi. They have helped me in my studies, as they help many hundreds—maybe even thousands—of Māori throughout this country.

There is no doubt that as iwi are getting settlement assets of their own accord, they are able to manage those assets effectively for the benefit of the iwi as a whole, and are able to exercise their responsibilities in a responsible and commercially effective way. There is absolutely no reason why they should be excluded from having the opportunity of exercising those responsibilities over assets that were originally designed to be held by them in their own hands. If the assets are to be centrally held, then it is absolutely critical that iwi Māori have some kind of voting control over what happens to them, especially considering the power that Te Ohu Kai Moana Trustee Ltd currently has, or will have, under the bill over the mandated iwi organisations and being able to change their constitutional arrangements and requirements.

At the very least, it would take an element of commercial competition out of the hands of Te Ohu Kai Moana Trustee Ltd and ensure that iwi Māori have actual control over all their assets, as they were originally supposed to have. That is what the settlement deed was about. It was the whole point of returning the assets to the rightful owners. That will not happen under this bill. Fifty percent of those assets will be held by centralised organisations, whose accountability back to iwi is very, very poor—many steps away. The amendment proposed by the Greens is just one small way of ensuring that iwi Māori have control over the assets they are entitled to and that the settlement originally intended they have. I urge this Committee to support both the amendments that the Greens have put forward in their Supplementary Order Paper, to clauses 38 and 50, to ensure that iwi Māori actually have the control over the assets, as it was designed they should have.

I want to take a brief call, particularly in support of the Supplementary Order Paper put forward by the member for Whangarei. Notwithstanding the length of time this bill has taken to come to the House, and the fact that Māori gave some support to it, particularly the model presented by Te Ohu Kai Moana Trustee Ltd, not all Māori support it. In fact, I suggest that the support was given only in order to progress this issue, particularly after 12 years of waiting.

This bill is complex; hence the extra layers of bureaucracy. In Māoridom there is a saying that there is only one thing worse than a Pākehā bureaucrat, and that is a Māori one. Given that that is what Māori think, they will have some real concerns about the levels of bureaucracy. If we seriously consider removing one layer, that might get a positive reception from Māori. But to give Te Ohu Kai Moana Trustee Ltd the power that this bill invests in it, would continue to attract the same criticism that the present Te Ohu Kai Moana Trustee Ltd has received over the last 12 years.

It will be interesting to see who will make up the board of directors of the company. It will probably be the same people who are directors now. If not, it will at least be the majority of them. The argument will be that they have the experience. I say to the Minister that my concerns will probably be alleviated if the membership of Te Ohu Kai Moana Trustee Ltd does not comprise the majority of the present commission. New Zealand First will be supporting the Supplementary Order Paper put forward by the member for Whangarei.

I want to take a call on Part 2 of this debate to challenge some of the comments made by Labour member of Parliament John Tamihere in his contribution. Mr Tamihere took the opportunity to say that this bill was here today in an attempt to sort out the mess created by the 1992 deed of settlement. It is true that the deed of settlement in 1992 was put together in a rush, over a short period of time. The issue of ultimate distribution to Māori was not resolved at the time, but for very good reasons. The point I want to address is Mr Tamihere’s suggestion that that was a mess created by the National Party, and he cited both the Rt Hon Jim Bolger and the Rt Hon Doug Graham. I suggest to Mr Tamihere—and the Minister might like to confirm this—that he should make contact with those people, who could bring him up to date with what actually happened over that brief period.

In 1992 an investment company—at that stage, quite a proud investment company—called Brierley Investments Ltd made a decision that it wanted to sell its shareholding in Sealord’s. That window of opportunity was grabbed by the Government of the day as a means of resolving grievances that existed in the fisheries area. It was an opportunity that had to be grabbed over that very short period of time. It is totally improper and incorrect for Mr Tamihere to come down to the Chamber to try to rewrite history, when he does not know the facts.

It is for that reason that the National Party now supports this legislation, with caution, because it moves an issue further after a long 12 years. The issue about the division of the ultimate benefits to Māori has been something we have left Māori to decide for themselves. Mr Tamihere said in his contribution that, effectively, the bill was written by Māori because they have now been given the opportunity to determine how they think the assets are best resolved and distributed, and I accept that.

But there are one or two issues that I think the Committee needs to look at quite seriously—in particular, the issue on the Supplementary Order Paper put forward by my colleague Phil Heatley, National’s fisheries spokesperson, that concerns the way the ultimate determination is made of directors for Aotearoa Fisheries Ltd. That organisation will be a huge commercial entity. As Mr Heatley explained to the Committee, we see now a very laborious five-stage process by which we ultimately end up with the directors of Aotearoa Fisheries Ltd. However, I think that that process could be curtailed quite dramatically and, therefore, that the Committee should take serious note of the Supplementary Order Paper put forward by Phil Heatley that attempts to eliminate at least one step in the election of Aotearoa Fisheries Ltd directors.

My colleague the Hon Georgina te Heuheu referred to Aotearoa Fisheries Ltd as a flagship organisation. The Committee needs to realise that the assets involved in that flagship organisation will be very significant. This afternoon the Committee has a duty to make sure that we establish a process whereby the best commercial brains ultimately get selected as directors to run that commercial entity. I certainly do not want to see a situation whereby we find that the legislation allows people to impose directors on Aotearoa Fisheries Ltd for their abilities, loyalties, or something other than their financial expertise. If that occurred, the ultimate gains available for Māori that are being distributed with the Maori Fisheries Bill would not be delivered.

I hope that with these comments in mind the Committee will seriously consider the Supplementary Order Paper that has been put forward by my colleague Phil Heatley.

I want to make some comments about Metiria Turei’s Supplementary Order Paper in relation to the huge control that Te Ohu Kai Moana Trust Ltd has over mandated iwi organisations, which ultimately are the iwi bodies that hold and manage the assets. The absence of any time limits on the period when that power can disappear is a real issue. I noted that John Tamihere seemed to be in favour of this Supplementary Order Paper. If the Government were to support the amendment, that would be a big change on its behalf.

It is just these kinds of processes, structures, and powers that make Māori very fearful of being so far removed from their asset. Although they get part of the asset, as mentioned earlier by myself and other speakers, the other significant part remains out of their reach. With the potential for the asset to be sitting in Aotearoa Fisheries Ltd, Māori fear that it could be managed in ways that are contrary to their own interests. It is not good if there is any residual power that allows any organisation above the mandated iwi organisations to keep on saying: “Well, we want to change this. We’re putting in some more criteria.” If members think about it they will realise that such a practice flies in the face of managing an asset that is commercial and therefore, as far as possible, should be managed on a commercial basis.

I turn to the review period. The Fisheries and Other Sea-related Legislation Committee was able to make some changes to minimise the feeling on the part of the owners of the asset that they are in the dog box, that someone is always standing over them, and that they are always at the butt end of everything. That environment is no good for the proper management of such valuable assets. Although the select committee worked collectively to try to bring about better provisions around the review provisions—and National Party members did—we still have reservations about how long the review period will be, even though it is proposed that the original period be cut down slightly. We have reservations that a significant proportion of the asset is sitting with the top dog Aotearoa Fisheries Ltd and we wonder how long it will be before the iwi are freed of this constraint.

National has also tabled a Supplementary Order Paper that tries to minimise that period, to enable these iwi who are capable and competent, to break free. However, it is a real issue. I have to ask what other organisations of a commercial nature are subject to the kinds of controls that are in this bill. I know that the Minister endeavoured to answer some of the questions put to him, but I have not found the answers at all satisfactory. To say that basically this is legislation that iwi wanted, is not really the case, because they are tired of the litigation, too. They want their economic asset, and they want to be able to move forward economically. Frankly, the Māori record of managing their own assets over the last 20 years is not too bad at all, and they develop more every day, as they go forward.

I would like to touch on some issues of the bill as first introduced. The Fisheries and Other Sea-related Legislation Committee in its process heard from both individual Māori and from those coming as whānau, hapū, and iwi groups. They put issues of accountability to the committee, in which there seemed to be two rules—one rule when it came to Te Ohu Kai Moana Trustee Ltd, Aotearoa Fisheries Ltd, Te Pūtea Whakatupu Trustee Ltd, and Te Wai Māori Trustee Ltd, with a review period of 12 years for those overarching organisations, yet another rule when it came to the mandated iwi organisations, whose report back and accountabilities were quite strenuous. It was starkly obvious to us, even before we heard from submitters, that there was an issue of iwi having to be highly accountable to their members—iwi having to report back all the time, cross their t’s and dot their i’s, and have financial reports in, all with very little flexibility—yet when it came to the overarching organisations such as Te Ohau Kai Moana Trustee Ltd, Aotearoa Fisheries Ltd, and the other trustees, they did not have to meet those same criteria. In fact, they had a review period only in 12 years’ time, which was in a decade plus 2 years. That is phenomenal when one thinks about it.

The select committee made some amendments—and National Party members were quite proud to make those amendments—particularly to Part 2, which included a provision in the constitution of Te Ohu Kai Moana Trustee Ltd for iwi to be able to table non-binding motions. So there was involvement there, which is covered in clause 28. Clauses 26, 70, and 83 cover the increase in the reporting requirements of those overarching groups. If members flick to those, they will see the reporting obligations of Te Wai Māori Trustee Ltd in clause 83. Clause 70 deals with the reporting requirements of Te Pūtea Whakatupu Trustee Ltd, and clause 26 deals with the reporting obligations of Te Ohu Kai Moana Trustee Ltd. Those reporting times had been 12 years, but it seemed quite absurd to us that one would go for a decade plus 2 years before bringing clear accountability to those groups.

Of course, there was also an expanded role for Te Kāwai Taumata to monitor their performance, which is covered in clause 40. That particular group—that trustee or “electoral college” of Te Kāwai Taumata—is able now, through clause 40, to have much greater powers in terms of monitoring the performance of those overarching bodies. That will allow it to receive and consider reports and reviews on those entities, and to take action through its powers to dismiss directors of Te Ohu Kai Moana Trustee Ltd.

So, where we had a report back after a 12-year period for Te Ohu Kai Moana Trustee Ltd, now we have that time broken up into several groups of years, and Te Kāwai Taumata can consider reports and reviews on the entities under Te Ohu Kai Moana Trustee Ltd’s charge. If it considers them and finds them wanting and serious enough, it can actually take action now through its powers to dismiss the directors of Te Ohu Kai Moana Trustee Ltd. Certainly, it should be able to. In fact, members will see in clause 40 that the sole role of Te Kāwai Taumata is to appoint and remove directors of Te Ohu Kai Moana Trustee Ltd. I, of course, have expanded that role through my Supplementary Order Paper.

I would like to carry on from where my learned colleague Phil Heatley has just taken us to, which is clause 40, “Sole function of Te Kawai Taumata”. Subclause (1) states: “The sole function of Te Kawai Taumata is to appoint and remove directors of Te Ohu Kai Moana Trustee Limited in accordance with—(a) the requirements of this Act; and (b) the constitution of Te Ohu Kai Moana Trustee Limited.” That is a critical point, because the constitution is basically where the rules are structured, and in accordance with the Act, of course, because there are some guidelines provided in the Act for the construction of a constitution. But the constitution can give any sorts of parameters or directions around how those appointments will be made through Te Kāwai Taumata. So the two linked together are vitally important. I do not think one can be taken on its own.

I would suggest that, in looking at clause 40, the importance of a company’s constitution should never be underestimated. I see that Aotearoa Fisheries Ltd is also required to have a constitution. Being a dairy farmer, and in the dairy industry, I was hugely interested in the constitutional issues in relation to the dairy company I was involved with, and the Dairy Board. Under the Dairy Board at the time, one was, I discovered, able to be a qualifying person for Dairy Board assets. Now the Tatua Cooperative Dairy Co. allowed that to happen for its shareholders, so its shareholders could be, directly, owners of its share of assets in the Dairy Board. I could never see that happening here, because of the huge amount of structures involved—there are essentially five. However, if one just takes it down to Te Ohu Kai Moana Trustee Ltd and Aotearoa Fisheries Ltd, one would get close to what was essentially the dairy industry model when it had a Dairy Board.

So if one is looking at Te Ohu Kai Moana Trustee Ltd and Aotearoa Fisheries Ltd in accordance with the Dairy Board model, one could actually have individuals as qualifying persons in respect of the shares in Te Ohu Kai Moana Trustee Ltd, and have that written into one’s constitution in the same manner as actually happened for the dairy industry.

I had a number of discussions with various representatives who were working through this Maori Fisheries Bill, and I remember, in particular, one discussion at a dawn ceremony for the opening and blessing of a medical centre in Thames. We were discussing this very issue, and how it related to the dairy industry. So the constitution is all-important, because while there are parameters identified within this bill, the constitution is where the detail actually takes place, and so one can wrap around a whole lot of stuff within that constitution, which will help to resolve, perhaps, some of the concerns that National, quite rightly, has with regard to this bill.

I am very pleased to see that my learned colleague Phil Heatley has a Supplementary Order Paper addressing some of our concerns. Te Kāwai Taumata has that sole function of appointing and removing directors. However, that would need to be done in accordance with the way the parameters of the constitution were structured. So it is not left solely to its discretion. I would suggest that people take a very, very strong look at what the constitution, and the development of it, will be—and those parameters are in clause 46—so that all those people who have an interest in Te Ohu Kai Moana Trustee Ltd will be able to be part of that constitutional process. That looks to me as if it operates in pretty much the same way—and with the same type of structure—as the dairy industry did.

It is fair to say that not everybody understood and appreciated the importance of the constitution in the dairy industry. That became very apparent when it was discovered that the New Zealand Dairy Group had not allowed for its shareholders to be direct qualifying sharepersons in the Dairy Board assets. So when dairy farmers started to make that application, they had to hastily amend the constitution to prevent that from happening.

I move, That the question be now put.

I rise on behalf of the ACT party to speak to Part 2, which puts together an incredibly bureaucratic process, whereby the fishing rights that have been granted to Māori must be administered. The ACT party says that if we are passing a law to give Māori fishing rights, then why are we placing upon Māori restrictions that non-Māori would not tolerate for one minute? We are a party of property rights, and I say that a property right that has these sorts of restrictions means that one does not actually own the property at all. But I go further than that. We all know—or those of us who are economically literate in this Committee know—that we are setting up here a system that is designed to fail. Now it may not have been the purpose of those designing it, but it is a system designed to fail because it is a system whereby people administering their own property will have to go through a process of politics. Political decisions will be made as to how to administer the fishing rights.

If members think I am being overly pessimistic in my predictions, I just point out that, I think on the front page of the New Zealand Herald today, there is reference to a sub-tribe up north where it is claimed that there are millions of dollars already unaccountable, for a settlement that was made, it seems to me, just yesterday—but then I think I came into the Parliament just yesterday! But it was certainly a settlement that was made very recently.

I make this prediction: because of this bureaucratic process, we will see similar economic failures. People will come along later and say that Māori cannot administer these matters. That is rubbish. I do not care whether one is Māori, European, or Chinese. If one is given a feudal system to administer, one will get feudal results. That is what this Committee is setting up today, and that decision has been made, so let us not relitigate it. If we are to grant substantial fishing stock to Māori, then we ought to do it the whole way and allow those people to administer it as they choose.

I would include in that the right to sell. If one cannot sell something, one does not own it. Māori should be able to do that. Just because there are Māori bureaucrats who want us to set up this bureaucratic system, that is no reason for us to set up a system that will allow them, in economic terms, to what is called “rent seek”, and they most certainly will. In plain language, that will mean that various Māori up and down New Zealand will be able to charge very large fees for being middlemen and middlewomen, standing in between the people who actually own it, Māori, and the State handing it over.

I am not in the business of trying to enrich people who would like to sit in the middle as bureaucrats, as sort of quasi-political business people. We already see them within Māoridom. They wear a better style of suit and they give great pleasure to people who sell Mercedes cars and the like.

How are they able to do that? It is only because this Parliament is not supporting property rights. If Māori are to be given fish, then they ought to be given fish. That would mean that they could administer it, and, yes, it would mean that they could make mistakes. They would also be able to succeed, whereas under the bureaucratic system we have set up, we are enslaving part of the population into a feudal system. The Minister’s economic advisers all know that the system he is setting up will be a failure. The reason the world has moved away from the feudal system is that it did not deliver, and why should it deliver to Māori? We will have a situation that will enable Mr Peters to get up, as he does, and say to ordinary Māori audiences: “And how many of you have received the snapper?”. Of course, the answer to that question will be “None.”, and under this legislation the vast majority of Māori will never see a snapper. A few Māori will become very wealthy.

I move, That the question be now put.

As the debate on Part 2 has proceeded, it has been interesting to see the inequities that will occur with different layers and structures advocated by the legislation. One concern National has with this legislation is that it separates the shareholders from the asset—because there will be different layers, and different levels of directors, and those who will appoint the directors—so that at the end of the day it will be difficult for them to have a say in the outcomes. We have an asset that belongs to iwi. Yet when we look at the process that goes through a number of different levels of bureaucracy, we find that the real power is not back at the level of the member or the iwi, it has been circumvented and taken over by the directors of some major companies.

That first part is just tokenism. Levels of bureaucracy have been put in place to make it look good and as though there has been a consultative process. Is there some reason why there are the different levels? It was interesting that the Minister for Small Business supported this legislation and talked about compliance costs and how the Government was doing something to reduce the regulatory burden, red tape, and compliance costs, but what does this legislation do? It actually brings in layers. In fact, it brings in five different layers of requirements, legislation, and a means by which the asset is separated from the shareholder.

The important point here is that there is a method and a solution to the dilemma we find ourselves in, and that has been advanced by my colleague Phil Heatley. He has taken a keen interest in all fishery matters, he understands the issues, and his Supplementary Order Paper—[Interruption] If that member were to read what my colleague Phil Heatley was advocating he would see that one of those levels could be reduced, we could streamline the process, and that would be of benefit to all.

I would hope that the Minister in the chair will take a call to support that. We are supporting the bill. However, we have concerns and we believe that there is an opportunity to streamline the process. At the moment it is just levels and layers of bureaucracy. If we look at the compliance of the whole process we find that it will be a waste of money and time, and people will be disadvantaged. Individual Māori around the country will have to select their iwi representatives, and that is the first process to go through. Then the representatives will select who will be trustees on the electoral college. The trustees will form an electoral college and that will be another committee. That is really where the rules, conditions, and compliance will come in.

Those trustees will then appoint the directors of Aotearoa Fisheries Ltd, which is really the flagship of the organisation. We are saying that those five different layers are not needed to be able to achieve the end result that National is supporting. We believe that it is important, but there is no need to have those different levels. Phil Heatley’s Supplementary Order Paper is very succinct. He is able to crystallise and articulate the argument very well, and the speeches that he has given on the subject over the last hour or so have really been focused. That is why we support the legislation.

I move, That the question be now put.