Maori Fisheries Bill

The debate is now on clauses 1 and 2. The vote will be taken separately. The debate is fairly wide ranging, and members should address the two clauses.

We come now to the wide-ranging title debate, and I would like to go through the six major issues that are of concern to the National Party and that we have raised through the course of the Committee stage. As we said in the second reading debate, we support the principle of the bill—that Māori, after 12 years, are able to get on and go fishing. But we have identified flaws in the bill, as we said we would during the second reading debate, some of which are quite significant. We would have liked to see those flaws addressed during the Committee stage. We certainly saw some of the flaws addressed during the select committee stage, and I was delighted by that and by the opportunity to have input into the bill. But there should have been more changes during the Committee stage.

One of the issues, of course, is the recognising of up and running iwi organisations. When the Labour Government first tabled the Māori Fisheries Bill, it said, in its stupidity, that some iwi, like Ngāi Tahu and Tainui, who have already been recognised in other Crown settlements and who already have structures in place to deal with settlements, have to jump through all those recognition hoops again. That is what the Government wanted. It wanted Ngāi Tahu and Tainui to go through all those recognition hoops again, with all that bureaucracy, all that form filling and box ticking, and on it goes. But we made changes in the select committee to clause 14 to make sure that such iwi organisations will get automatic recognition if they have already been formally structured and are accountable to their members, if they have already established an asset-holding company, and if they have already been accepted by the Crown as having a mandate for Treaty of Waitangi settlements. Clearly, Ngāi Tahu fit into that category, and Tainui undoubtedly does, as well. Why should they have to go through the hoops again? We are glad to have made those changes. I can only consider, in hindsight, the foolishness of the Labour Party in even thinking those organisations would have to go through that all over again.

One of the other issues we looked at was that of the coastline agreements that were likely to hold up allocation. Why, in the original bill, the Minister, David Benson-Pope, had it so that if one small section of coastline had a dispute it meant that the allocation relating to the entire coastline would be held up, I have no idea. It was more sensible to us to make sure that Māori could get on and access their quota from the areas of coastline that were not under dispute, while issues around the other small area of coastline under dispute could be resolved. We made those changes because we knew, whether objection was warranted or vexatious, that some iwi would come forward and stop allocations dead in their tracks with a coastline argument. That would have been unfair and unreasonable. We would like to have seen Ngāi Tahu appeased in some way, because it has already resolved its coastline through both Crown settlements and endorsement through the courts. They know what their coastline is. It has been proven through a Crown settlement and through a court, and it should stand.

We also discussed the issue of the limitations of realising the value of fishery operations because capital items such as trucks and boats and buildings, quota, and shares could be sold only within iwi groups—iwi to iwi, or iwi to Te Ohu Kai Moana Trustee Ltd. There is no doubt that that will mean there is an effect on the value. The restriction on the sale of shares and quota definitely has a potential to affect their value. However, that is an accepted consequence within Māoridom. They understand that Māori, through the generations, must benefit from the settlement. It is a fundamental principle of the allocation model, and they are prepared to take the hit. Of course we question the commercial sensibilities of that decision. We questioned Māori time and time again at the select committee, but they said to us that they understand that but they want to keep their quota for their children and their children’s children. We support that, as well.

I thank the Chair for the invitation to treat this as a wide-ranging debate, because it really gives one the opportunity to analyse the basic principles of the bill—which parts we agree with and which parts we disagree with.

National has been supporting this bill through the Committee stage and previous stages, and we have good reasons for doing so. We recognise that the 1992 legislation, which established the Treaty of Waitangi Fisheries Commission, does have to be modernised. The only way that can be done is through this House. We also recognise that the commission’s solution was a difficult compromise that balanced a variety of interests, and ultimately it had to make a call. It would never be in a position to satisfy everyone.

Let us look at the formula the commission came up with. In essence it said that inshore fisheries were allocated on the basis of coastline and offshore fisheries were allocated on the basis of population. If the commission had left it at that and then allocated the quota for both in shore and off shore directly to the iwi, that would have been a fundamentally better solution than the one that has been arrived at in this bill. But there is one further step that the commission suggested. The problem with it is that it is all about protecting a particular commercial entity—Sealord’s. Rather than the iwi getting direct control of the offshore quota, which one would have thought would be the logical outcome, it is all folded into a whole series of entities. The bulk of the complexity of the bill actually rests around this, because all the entities would not be needed but for this fact, and ultimately it is all a device to own Sealord’s. Through a whole series of intermediaries, that is actually what it is all about. The only control and profit that the iwi get is through this very convoluted, many times removed profit. Actually, most iwi simply get a vote in an electoral college. That is their level of control—simply a vote in an electoral college. Who on earth could really believe that that is any kind of autonomy or sovereignty?

National is left with a difficult choice because the question becomes this: do we support that process, even though it is fundamentally unsatisfactory, because it is at least a step forward from the current situation, or do we say that, frankly, it is not good enough and vote against it? We will make that determination before the third reading. But it is a very serious question.

We put forward suggestions that would have made it fundamentally easier for us to support this bill. The essence of our suggestions was to enable those iwi that have commercial expertise to directly access their offshore quota. Most self-evidently, that would have been Ngāi Tahu, but there would have been other iwi in that regard. We put a lot of thought into those particular provisions. The Minister was notified of those, as was United Future, because, actually, United Future had the key. This is one of those situations where United Future members could have said yes or no.

💬 Hon Ken Shirley: Did they lose the key?

Well, yes, because, once again they acted like the lapdogs that they are and simply voted for the Government. I find that most disappointing.

My colleague Mr Heatley also put forward Supplementary Order Papers that would have simplified the convoluted structure and removed some of the layers. Again, these were simply rejected by the Government. It was very unsatisfactory.

Not once have we heard the Māori members stand up and defend these solutions. We virtually never heard the Minister stand up and defend his solutions. What is worse is that tonight he did not even have the officials in the room, which tells us everything. He had no intention whatsoever of taking a call, even though this is one of the most important bills that this House will deal with this year. It involves $1 billion worth of assets.

It is not often that Parliament deals with issues of that significance. We spend a lot of time on legislation that does not have that level of significance. One would think that when we do deal with important issues, the Government members would take calls. One would think that the Māori members especially would take calls. Instead, this side of the Chamber has seen the Government members essentially bankrupt and bereft of ideas. That is why, ultimately, their seats will go. Their silence speaks volumes, and they stand condemned by that. I will bring this point to a close. This is important legislation and we do have a real choice ahead of us.

Points have been raised in the Chamber, and the Minister has not responded to those questions. I reiterate the concerns expressed by my learned colleague, Dr Wayne Mapp, that we are incredibly disappointed that those serious matters raised by the Hon Bill English and others have not been addressed. One of those was in relation to the 19.5c tax rate for Māori authorities. It is unclear in the bill exactly what will be happening with regard to all those entities identified in the bill.

One newspaper clipping stated that changes to the bill meant “allowing quota to be sold to other mandated iwi organisations and ensuring that the new Aotearoa Fisheries Limited would have the low 19.5 tax rate of other Maori authorities.” So it would appear that Aotearoa Fisheries Ltd is identified in the bill as a Māori organisation and, as such, also has the 19.5c tax rate advantage of other Māori authorities. That is alluded to in the document that I tried to table earlier, but my request was denied by the current Government. It did not want me to table that document, which clearly identified that the entities that were named in the bill are subject only to the 19.5c tax rate for charitable organisations and other Māori authorities and organisations as referred to in the Taxation (Maori Organisations, Taxpayer Compliance and Miscellaneous Provisions) Act. Those are identified in that document, and those parameters around Māori organisations are also identified. Although Te Ohu Kai Moana, Te Wai Māori Trust, Te Pūtea Whakatupu Trust, and their respective corporate trustees, and Aotearoa Fisheries Ltd, are all exempt from the general taxation provisions that the rest of the charitable organisations are constrained by, those particular trusts identified in this bill all have that advantage of having the 19.5c tax rate.

That is certainly an unfair advantage accorded to just one sector of the community, and that is totally unacceptable in our view. That has been clarified in these documents, and the Minister was asked to take a call to further clarify the position of the tax rates for all the entities, but he failed to do that. He did not respond and nor did he respond to the other calls to explain some of the other provisions within this bill. Those calls were about some of the other provisions regarding dispute resolution.

There are 12 iwi of Hauraki identified in Schedule 3 under the Tainui iwi. They are Ngāti Hako, Ngāti Hei, Ngāti Maru, Ngāti Paoa, Patukirikiri, and a range of others. I put it to members that Ngāti Maru may seek to clarify their ownership with regard to coastline and settlement quota within this bill. I am sure they will be seeking some clarification and will wish to have their own matters addressed through the dispute resolution process. Māori Land Court judges need to have knowledge of tikanga Māori for this dispute resolution process, so will they understand the tikanga for Ngāti Maru?

I put it to members that they will not, so how can they judge what the position will be for Ngāti Maru in accordance with Ngāti Maru tikanga? As the Minister is no doubt aware, the tikanga for one individual iwi group or hapū is quite different from the tikanga for another, and they each have their own sense of what tikanga means for them. So how will that matter be able to be judged within the Māori Land Court, without the relevant tikanga Māori being known for that individual hapū—for example, Ngāti Maru?

I want to make some comment with regard to the title of this bill, now known as the Maori Fisheries Bill. I am not quite sure whether that is an appropriate title, because, given the perceived support by the Government to things Māori, I would have thought that a more appropriate title for this bill would be a Māori one. I suggest that the bill would be more appropriately named “Te Ture Hao Ika Māori”, which essentially is the Māori Fisheries Bill. Now, perhaps it is beyond the realms of possibility that this suggestion might be a consideration that the Government might feel like providing in a late Supplementary Order Paper.

Should it not consider that, I can suggest an alternative title for this bill. It is the “Privy Council Memorial Bill”, because this bill came out of a decision from the Privy Council and, as we all know, the Government is determined to sever our ties with the Privy Council. It did so without consultation with Māori, and one can see why, as it seems to me that the Privy Council has been quite sympathetic to the Māori argument.

However, another alternative could be the “Fish and Loaves Bill”, because some people believe—and it certainly is the case at the moment—that they have not received anything out of this settlement. However, this is unlike the original feast of fish and loaves, because those who partook in that feast had faith. Now, I am not quite sure, even at this stage, given the differences of opinion that exist outside the Māori world—and certainly within the Māori world—that this might be an appropriate name for the bill.

I believe that a number of issues come out of this bill—not least of all, the recognition of iwi groups; and in fact there is a recommendation from the Fisheries and Other Sea-related Legislation Committee concerning two groups in particular, Ngāti Hine—and I declare I am a member of Ngāti Hine—and Rongomaiwahine. The bill does not give them iwi status. That has to be recognised by those people, particularly within Māoridom, who have been critical of that. But what it does do is allow those groups to be considered alongside iwi to receive their separate allocation, if they so wish. That in no way deems them to be iwi, because only Māori can do that.

The second point is the recognition of existing treaty settlements. I must express my serious concern about this particular issue, which was brought to notice by Ngāi Tahu, who signed their deed of settlement with the Crown in good faith, where that settlement recognised their tribal boundaries. Yet, that same recognition is not given due regard by this bill. To me, that signals that future deeds of settlement will have only a limited use, and that this bill will not give any recognition of that. Of course, that adds to the burden that the Māori Land Court will have to bear.

The other issue is that I believe that too much authority or power has been given to the offspring of the present commission; that is, Te Ohu Ki Moana Trustee Ltd. We heard throughout the discussion this afternoon and early parts of this evening the concern of members about this issue.

I seek leave to table an undated document from the Finance and Expenditure Committee that is a commentary on the Taxation (Annual Rates, Maori Organisations, Taxpayer Compliance and Miscellaneous Provisions) Bill.

The CHAIRPERSON (Hon Clem Simich): Leave has been sought for that course to be taken. Is there any objection? There is.

We are drawing to the close of a very unsatisfactory and a very unfortunate ending to a very long saga. Looking around, I think I am the only member in the Chamber tonight who was there at the beginning, following the Muriwhenua court case back in the 1980s. Indeed, Dr Cullen is waving in front of me here, and I seem to recall that he was also there. I think he was the junior whip at the time.

💬 Hon Dr Michael Cullen: Senior whip.

Senior whip—I do him an injustice. The situation was clear. It was all about an article 2 property right, with the chiefs and tribes being guaranteed, inter alia, the full, exclusive, and undisturbed possession of their fisheries. It was never an issue with the administrative allocations that we traditionally had in the permitting system, and there was never anything there to debate. But after the 1986 fisheries legislation introduced a property right, which was a sensible and appropriate thing to do, with a quota system and individual transferable quota property right, then Māori legitimately had a case. They took it to the courts, and that case was upheld. So the Crown was certainly bound to settle it. The first Māori Fisheries Bill was introduced in 1989, in the name of one Hon Richard Prebble. A special select committee was appointed, and one Ken Shirley was the chairman of that select committee that met over 18 months and came up with the first settlement. What the bill started off with was 50 percent of the quota, but that was confined to the inshore. It was 50 percent of inshore species. The rationale for that was that Māori drew a long bow in claiming that they caught orange roughy and the like at depths of 2,500 feet and many miles offshore. It stretched the imagination and beggared belief to think that they rowed out or paddled out in a canoe and, with flax ropes, caught orange roughy at a depth of 2,500 to 3,000 feet. However, they convinced the Government that they did indeed do that. I remember chairing that first select committee when Māori made such a claim, and my question to them was: “What was the Māori name for orange roughy?”. The senior kaumātua did not have an answer. He said: “I’ll come back tomorrow with it.” Sure enough, he came back the next day with a Māori name for orange roughy. But, be that as it may, the 10 percent settlement over all the fishery acknowledged that there was an artificial boundary between the inshore and the deep water, and the inshore fishery in New Zealand had been decimated through overfishing and overcapitalisation. So I believe that it was fair to move to that 10 percent, and the Māori of the day settled for that. I was at meetings with Sir Tīpene O’Regan, Matiu Rata, Graham Latimer, and all those leaders, and 10 percent was seen as being reasonable over the full quota.

Unfortunately—or fortunately, depending on how one looks at it—someone called it “the interim solution”, which was an invitation to come back for more. Surprise, surprise, that is exactly what happened. That is what led to the Sealord’s deal in 1992, when the 20 percent quota allocation was established. As the Minister of Fisheries, I signed over the allocation to the fisheries commission. Four 2.5 percent quotas going through to 1992 were signed over in 1990, and, indeed, most thought that that would be the end of it. The commission was established so the property right could be transferred to Māori, because there was no way the Crown could have gotten that right. Whatever the Crown did, it would have ended up as the meat and the mustard in the sandwich, so the Māori Fisheries Commission was established for Māori to make that determination. I thought it would probably take a year, or possibly 18 months—I was wrong. It took 12 years of bitter wrangling and litigation to the point, even then, whereby a consensus could not be reached. That is why this issue is now back in Parliament. I would like to be able to say that this bill is the end of it, and that we have a harmonious settlement that will work, that can meet the very laudable objective of meeting the article 2 treaty property right settlement, and that can have Māori fully engaging in the business of fishing. But when I and the ACT party look at this bill, we do not believe that it will do that. I believe that it has inherent in it the seeds of ongoing wrangling.

I seek leave to table a document from the Sunday Star-Times, dated 23 November 2003, titled “Fisheries’ can of worms”.

The CHAIRPERSON (Hon Clem Simich): Leave has been sought to do that. Is there any objection? There is.

I move, That the question be now put.

I believe that instead of having the title “Maori Fisheries Bill”, this bill should be known as the “Maori Fisheries Interim Bill”. The incoming Minister of Fisheries, Phil Heatley, has made a commitment—and he will carry it out—to bring to the House next year the six major amendments necessary to give credibility to this interim bill and to pay due respect to the Māori community. Why do I say that? The sentiment behind this bill and the bureaucracy in it are quite an insult to the Māori community. No other group would be subject to such a bureaucratic process when selecting or appointing its board members, and no other people in New Zealand would be told that their identity and affiliation would be decided by the court. No corporation in New Zealand would be restricted by the Government from disposing of its assets in a commercial manner that would be beneficial to its members. That is a very serious issue that I want to raise.

As far as I can remember, the Minister, David Benson-Pope, has taken only one call today. That was his response to the questions raised by the Opposition parties as to why the Māori authorities are to be subject to such a bureaucratic appointments process. He told the Committee that that is what the Māori community wants. In terms of the way that the Minister delivered that answer, he was basically saying that had it been left to him to exercise leadership he would not have done that, but it has been done because the Māori community wanted it. I challenge that because the Māori community, like any other community in New Zealand, simply does not speak with one voice. Māori are entitled to have their individual persona and to make their individual decisions. The fact is that they are compromising themselves, because they do not believe they will get the option of championing the best way forward. Therefore, they are making a compromise.

The minority Labour Government claims all the time that it is exercising leadership and making the right decisions, but, once again when facing a difficult issue, it is taking the easy way out. It either refers difficult decisions to the courts and then accuses the courts of not carrying out the intention of the Parliament, but without having given the courts clear guidelines, or it tends to say that its decision is what the community wants. I would say those are selective statements that are intended to get the minority Labour Government out of making difficult decisions. A credible Government would exercise leadership by adopting the right criteria, which in this case would mean that if one establishes or allows a commercial enterprise to be established, then that enterprise should be subject to no more and no less control or requirement than what is best practice in the commercial sector. But the Māori organisations are not to be trusted to make the right decision. I have always said that when people talk about the business acumen of a Māori community or organisation, they tend not to refer to, for example, the Ngāi Tahu situation. What about Whale Watch Kaikōura and such enterprises?

I move, That the question be now put.

In the earlier stages of the debate in this Committee, our spokesperson, Phil Heatley, outlined National’s general concerns about this legislation. After having listened to that debate in some detail and having followed the discussions that have gone on over the last 10 years or so, I think most of us are led to the conclusion that this bill is worse than almost anything except one thing, which is to have no settlement. Really, that is the only reason that I think Parliament ought to tolerate the pretty obvious weaknesses in this legislation. It is better to have this legislation than to leave the 10 or 12 years of discussion without a conclusion.

We have looked in detail at three areas that, I think, matter. The first has been referred to by my colleagues, and it is the commercial structures that are involved. They are not commercial structures. The only parallel I can think of is that they resemble in some way the Fonterra settlement that came through this Parliament. But this matter is much more complex, although many of the same issues are involved. The iwi involved here—in fact, everyone who is involved—need to understand that the easy bit of developing Māori fisheries is over. Running an export fishing business when the exchange rate of the New Zealand dollar is at US65c is hard work. If anyone believes that the fishing industry can deliver significant dividends to the beneficiaries of this settlement without the best of commercial and strategic management, then he or she is wrong, yet this legislation does not permit the best of commercial and strategic management. I would bet that a number of the beneficiaries of this legislation will find before too long that the aspects of it regarding collective ownership, Māori exclusivity, and limited trading are a hindrance to the decisions they want to make, rather than a help.

Another part of this bill that does concern me is the layers of vested interests that are built in here. In some respects the existing structure is certainly easier to understand, more transparent, and better able to manage the asset than what the bill provides for. We are now moving into a much more complex and indirect structure, and as one of my colleagues here in the Chamber has pointed out, the interesting thing about the layers of accountability is that Māori have chosen that for themselves. No one who benefits from this settlement will be able to say that some colonial doctor, a has-been, has dropped it on them. This has been—

💬 Hon Ken Shirley: You wait and see.

Maybe we should. In some ways Parliament is colonising iwi thinking through this legislation. Give them 20 years and then it will all be our fault, do members think?

The Māori people have chosen this structure for themselves, and I am concerned, as are many Māori, that it will result in high salaries, unaccountable management, politicised decision-making, and people whom one can never quite get one’s hands on, particularly if one wants to get one’s hands around their throats. With the growing commercial awareness and capacity in iwi, they will want to get their hands around the throats of the people who are running this asset, because it is high-risk commercial business now. There will be losses, and there will need to be accountability. So in a way Parliament is throwing its hands up and saying to Māori that they have chosen this structure, so they can live with it. I would not mind betting that in a lot less than 10 or 12 years’ time, Parliament will be playing around with this legislation again. It looks to me as though the future path of Māori fishing will parallel that of the restructuring of the meat and wool boards, where we had an amendment bill about every 2 years for 5 or 6 years, until finally we got to a conclusion that was sustainable.

The other issue I am concerned about is the way that Parliament is legislating and mandating iwi. That is not something we have done before. We have not set up a statutory basis for iwi registration, and therefore for beneficiary registration. The debates we have already had in the far north and in Hawke’s Bay tell us that that is difficult territory for Parliament to stray into.

I move, That the question be now put.

I raise a point of order, Mr Chairperson. I seek clarification of exactly how the votes on clauses 1 and 2 will be taken. Will they be taken together or separately?

The CHAIRPERSON (Hon Clem Simich): I was just starting on that point. The question will be put separately on clause 1, and then on clause 2.

I raise a point of order, Mr Chairperson. My understanding is that we have now completed the voting for clause 1 and that you are about to call a separate vote, obviously, for clause 2. The time for the House to rise has passed. Therefore, it is not as though we are voting on a lot of amendments, where we vote right the way through until the vote on the part is completed. What is happening is that we are entering into a separate vote, and the correct procedure, as I understand it, is for the House to rise now and for that vote to be taken when the House next goes into Committee on this bill.

I am of the view that this question was taken as one debate, and we should at least vote on clause 2.

I raise a point of order, Mr Chairperson. I distinctly heard you say that there are two distinct questions. That is really the point being raised by the other Opposition party, and I certainly concur with it.

I understand that. It was one debate, but the votes on the two clauses are to be taken separately.

I raise a point of order, Mr Chairperson. I am not trying to be difficult, but I would hate that ruling to stand. I ask that you think about that, because often in the Committee of the whole House, as you would know from your long experience, we end up debating all parts of a bill as one question. There could be amendments to parts, and all sorts of things, and we go through and vote at the end, but the voting is separate for each part.

If your indication becomes a ruling and is allowed to stand, it would mean that all the voting would effectively be done at the end, regardless of the time. That has never been the case. Yes, the part must be dealt with, and also the amendments to that part, but we have done that and we are now moving on to a separate vote. That is what I ask you to consider seriously, because this circumstance is not like one in which we are continuing with something we started on. This is a separate clause.

I thank the member for that. Again, I say it is my view that the question was that clauses 1 and 2 stand part.

💬 Hon Ken Shirley: Point of order, Mr Chairperson—

The member may address the issue again, but I am giving my ruling now. The question was that clauses 1 and 2 stand part. There is no argument about that, and I said that the clauses would be voted on separately. So we are in the process of this vote, and that is my ruling. The member may, if he wishes, overturn it at another time.

I raise a point of order, Mr Chairperson. I think this is a very grave situation.

The CHAIRPERSON (Hon Clem Simich): Not really.

The Committee has flagged that if this decision were to stand, then that could have all sorts of ramifications. Indeed, it may be appropriate that we recall the Speaker.

If that is the member’s wish, that is fine by me.

💬 Hon KEN SHIRLEY: I think it is a decision of some gravity, Mr Chairperson. If you are to persist in this way, then we must ask to recall the Speaker to clarify the matter.

Reluctant as I am to agree to the sense of recalling the Speaker at this hour, I think that is probably the only course, and I want to give the reason. Dealing with clauses 1 and 2 at the end of the debate is a new way of dealing with them. It used to be that the title and commencement were separate debates, and had separate votes right up front. We now deal with them at the end. The ruling that, because we deal with the votes at the end, they are effectively taken as a continuum of one vote and not two separate votes for the purpose of when the clock runs out, is quite a substantial ruling. If we are to go that way, it is a massive change and requires the attention of the Speaker.

It is certainly not a massive change or a great matter. Why the Opposition wants to waste time at this point becomes a bit meaningless; it does not really make any difference to the proceedings of the House.

But the issue here is very simple. A closure motion once put applies to all the questions that are subsequent upon that closure motion. There are not two closure motions put on this debate at the end of the bill. We now have this new procedure where the preliminary clauses are taken finally, but each is put separately at the conclusion of that debate. The motion moved for closure is the motion on the closure of the debate, and that is then put. Subsequently all questions that flow from that closure are put as one question and continue past the stopping time, should that arrive.

I think the ruling you have given is absolutely clear and appropriate. I point out to Opposition members that if the Speaker is recalled, I think they will find it will be the Assistant Speaker, but I am quite sure that the able advice of the Clerk of the House will lead to confirmation of your absolutely correct decision, Mr Chairperson.

I thank all members for their contribution, and I thank Dr Michael Cullen. He is absolutely correct. I had no doubt about it, at all. I do not think it is setting any precedent; it is just plain common sense. We follow what is laid out in the Standing Orders, and it is as I have outlined it. I wish to continue with clause 2, but if someone wants to recall the Speaker, that is no problem.