Maori Fisheries Bill

I am pleased to lead off the debate on Part 3 of the Maori Fisheries Bill. Interestingly, my colleague Wayne Mapp plans to table a Supplementary Order Paper to address an issue that we felt was not properly addressed at the Fisheries and Other Sea-related Legislation Committee, although Georgina te Heuheu and I certainly tried to address it. It is the matter of organised iwi groups that have a proven track record in the fisheries arena, that own large amounts of quota—and have owned it for some time—and that operate fishing vessels. Those groups process and market their seafood for the benefit of Māori and other good New Zealanders who work hard in the industry, and under this legislation they are currently unable to withdraw their assets almost in total and to put them to work for their people. My colleague Wayne Mapp will be addressing that particular issue.

I, however, would like to address another issue in relation to two iwi groups—Ngāti Hine and Rongomaiwahine—that were not recognised in the original allocation because, among other things, in order to have iwi status they had to be traditionally acknowledged by adjacent and contiguous iwi, according to the original legislation. That meant, according to the Treaty of Waitangi Fisheries Commission’s own criteria—and it had five things that iwi had to prove in order to be acknowledged as iwi in this legislation—that iwi groups had to have acknowledgment from their neighbours that they were, in fact, iwi. Of course, in the Ngāti Hine case we had a situation whereby all of Northland—and I am sure most of the North Island—always knew that Ngāti Hine existed as individual Māori members of that iwi, as whānau, as hapū, and as an iwi in its own right. Yet in this legislation Ngāti Hine was not recognised as such because its major neighbouring iwi, Ngāpuhi, did not recognise it as an iwi. Questions were raised as to why that would be the case, and it all comes down to the allocation and how that will be divvied up. Rongomaiwahine was in a similar situation, whereby it was not recognised by neighbouring iwi groups, yet it has had genuine recognition that goes a long, long way back. It raises the question of why this Committee is debating Māori history and ancestry, when Māori themselves know very well where whānau, hapū, and iwi grow from.

Still other iwi groups wanted to be given individual recognition—that is, apart from Ngāti Hine and Rongomaiwahine—because they lacked the confidence that the overarching iwi provided for in this legislation would deliver the benefits to them specifically, as those iwi should. Amendments have been put in during the Committee stage that would recognise Ngāti Hine and Rongomaiwahine, if their members so choose. I think that is very important. If members of Ngāti Hine and Rongomaiwahine so choose, they can break away from the overarching iwi organisation and set up their own mandated iwi organisation. They can go and fish, and benefit from those particular assets. Ngāti Hine and Rongomaiwahine proved to us in the select committee that because of their situation, there was a lack of recognition by a single adjacent iwi, which, in their case, amounted to an unreasonable veto in the face of all the other evidence presented. Upon recognition in this amended legislation, those iwi groups will now have to work with the larger iwi above them to resolve their differences.

I speak to Part 3 of the Maori Fisheries Bill, which deals with the allocation and transfer of settlement assets. It is obviously a very important part, because it essentially sets out the whys and wherefores of when the registered Māori organisations will receive their assets. The intention is that as soon as is reasonably practicable after Te Ohu Kai Moana Trustee Ltd is satisfied that an iwi has met the criteria set out in the legislation, then it must allocate the settlement assets to that particular iwi in accordance with provisions also stated in the legislation, and must transfer settlement quota and income shares to the asset-holding companies of the mandated iwi organisation. I believe there is an obligation inherent in this part for Te Ohu Kai Moana Trustee Ltd to be supportive, in terms of helping the iwi organisations to get themselves ready, established, and able to satisfy the criteria, so that the assets can transfer as quickly as possible. As has been said many times already in this debate, National certainly wants the assets to go out to the owners of those assets. The sooner that occurs the better it will be, in our view.

With regard to the issue of who is capable, we know some iwi organisations are already competent and capable. My colleague Phil Heatley has flagged our thinking on that, and my other colleague Dr Wayne Mapp has a Supplementary Order Paper that deals with the issue. The issue came up several times during the select committee stage in the Fisheries and Other Sea-related Legislation Committee. There are iwi that are already running successful fishing companies, and they have proved that they are capable and competent—like Ngāi Tahu, for instance, but that iwi will not be the only one. This legislation treats all Māori alike: as though they are witless and incapable of managing their own assets, when, in fact, the reverse is true. As I said earlier, the track record of Māori managing their own assets is not bad—not bad at all. We see that especially when we look at what happens in the general sector, such as the failure of Access Brokerage last week. A lot of shareholders will be out of pocket and will have lost their life savings as a result of that. I do not know whether we have seen that happen with many of the Māori commercial entities.

Setting free the iwi organisations, the tribal companies, that are competent and commercially experienced from the jail, or cage, that they are all jammed into is a real, real issue, as is the issue of the transfer of assets when the mandated iwi organisations and the asset-holding organisations are ready. As I say, I think Te Ohu Kai Moana Trustee Ltd has a real obligation to ensure that there is as little delay as possible. Although the bill certainly sets up enough barriers for iwi organisations that are getting themselves going, I think that Te Ohu Kai Moana Trustee Ltd should show a generosity of spirit and faith in the iwi, and should do everything it can to ensure that the assets transfer sooner rather than later.

I will speak to my Supplementary Order Paper 257. The Minister of Fisheries has had advice of it for a week. I direct this comment also to United Future members, who always ask for time to think about things: well, I wrote to them, I gave them time to think about my amendment, and if they read it carefully they will realise the wisdom of it, rather than their just meekly following the Government as they so often do. “Be brave!”, I say.

I just want very briefly to refer to my amendment. It is intended to give commercially qualified iwi—those who have a genuine track record—the ability to access directly their offshore quota. They would make an application to Te Ohu Kai Moana Trustee Ltd and would have to satisfy some threshold test. I understand that that is important for two reasons: first, so that people know that the asset will not be dissipated; and, second, to give Aotearoa Fisheries and, ultimately, Sealord’s a reasonable period to adjust. I understand the importance of that. The threshold tests are, first, the iwi has to be a mandated iwi organisation; second, it has to hold relevant quota entitlements, as provided for in the relevant clauses; and, third—and this is most important—it has to demonstrate an existing track record of increasing shareholder value over a 3-year period. If an iwi can satisfy those three tests, then it should be able to access its quota directly, because, frankly, it will have proven that it can manage the quota as well as Aotearoa Fisheries can.

Surely, it is the Government’s intent that iwi should be empowered. How many times have members on this side of the Chamber heard that the Government has faith in commercially qualified iwi organisations? We have heard it numerous times. Well, this is an opportunity to show that. This is not one of those kinds of Supplementary Order Papers that are prepared in haste; this has been thought through. It provides for a separate part. The Minister has been written to. He knows that some iwi want this particular power, and I say he should give it to them, because the alternative is that, some years down the track, Parliament will be faced with this kind of request in any event, and whoever is the Minister—depending on which party is in Government—will have to produce—

💬 Sandra Goudie: It will be Phil Heatley.

Yes, it will be Phil Heatley. He will have to introduce into Parliament this kind of legislation to enable qualified iwi to get out of jail, effectively, because the problem with the current legislation is that it is too much of a straitjacket. This Supplementary Order Paper offers a reasonable and responsible approach to freeing it up. It gives Aotearoa Fisheries the ability to make a managed transition, and I recognise that that is necessary—obviously, it is important—but at the same time we must understand that iwi want to be empowered. The best way to do that is to give them control over their assets—to provide some decent threshold tests, and if they meet them, then they can have that control.

If the Government will not listen, United Future has the power in its hands—as does the Green Party—to give freedom to commercially qualified iwi. I say that this Committee should be voting for freedom, it should be voting for autonomy, and it should be voting to give people with competence, who have a proven track record, control of the assets themselves. That is the aspiration of iwi organisations up and down this country. There would be threshold tests to get over, and that is reasonable, but if the Minister and other parties in this Committee really had the interests of iwi at heart, they would vote for this Supplementary Order Paper. As I said earlier, it is one that has been carefully thought through and one that provides a balance of interests.

I will first just comment on Mr Mapp’s amendment on Supplementary Order Paper 257. While it has some appeal to me, I say to him that I do not like the phrase “commercially qualified iwi organisation”. I wonder how people would work that out. I do not like it, first, because it requires somebody to work out whether an iwi is commercially qualified, and, second—[Interruption] I have listened to the member, and I am now replying to his point. The second point that I do not like about it is that it talks about iwi organisations. We all know, or those of us who have bothered to study the matter know, that in 1840, of course, iwi did not own anything. It was all held by hapū. If the member had put into his amendment that the quota be able to be transferred to hapū—actually, to families—which is an economically sound unit rather than one that is artificial, tribal, and requires politics to run it, I would be much more inclined to support it. I probably will vote for it because it is an improvement, but I say it has not gone far enough.

Let me return to clause 125 and say just how shocked I am at such an amendment being proposed, because it is absolutely contrary to the Treaty of Waitangi. The clause provides that a mandated iwi organisation must not sell its settlement quota. Well, if one looks at the treaty, one finds there are only three articles. Article 1 is the sovereignty clause. The second article recognises that Māori own land, forest, and fisheries—which is why we are having this settlement—then empowers Māori to sell them. In fact, in the treaty there is a restriction that they must be sold to the Crown, but Māori are entitled to sell—there is no doubt at all about that—and that is a very, very powerful right. One does not actually own anything if one cannot sell it. This Parliament says it believes in treaty principles, but where is the treaty principle that says that Pākehā can sell fishing quota, that Chinese can sell fishing quota, that, in fact, any New Zealander can sell fishing quota unless one happens to be a mandated iwi organisation? I object to this clause, because it is racist and contrary to the treaty, and I would like to hear from members opposite why they believe they can get up and preach the principles of the treaty to this House, then introduce a clause that is so contrary to it.

I have no doubt that there are Māori bureaucrats and politicians who have said they want this clause. Of course they do; they see this clause as a way of keeping them in their jobs forever. But I say that I believe it is quite possible for Māori to decide that they want to invest their money somewhere else. In a free society, they ought to be able to do that. An iwi ought to be able to say: “On balance, we don’t think fishing is for us. We have something else we would rather do with our money.” That is what New Zealanders and companies do every day.

I tell the Committee that this clause is contrary to the treaty. There is no doubt about that; it is a black and white matter. I want to hear from the Minister how he can be in favour of this clause, and then say that his Government is trying to implement the treaty. He cannot say that Māori have the right to rewrite the treaty; if the Crown does not have that right, nor have Māori, and nor has this Parliament. This clause is contrary to property rights. It is contrary to the fact that every citizen—and under article 3 of the treaty Māori are given the rights of citizens—is entitled to buy and sell. But in clause 125 the only way one can sell quota is to sell it to another Māori group—or one can gift it. What an outrage! How could a Government, in 2004, pass such a patronising, racist clause that is contrary to the treaty!

I will address my comments to Dr Wayne Mapp’s amendments on Supplementary Order Paper 257, as well, as I have been challenged by him to show some courage and support his amendment. I thank the member for giving us sufficient time to process his amendments. We have done that and have considered what the amendments are all about.

One thing I have not heard the member clearly elucidate is the list of all the hapū and iwi that have lobbied him for these amendments. I certainly would take that into serious consideration, if I were to give any support to the amendments. I know that I personally have not received one letter or phone call from any Māori hapū or iwi representative asking me to support Mr Mapp’s amendments. I can only conclude that it is Mr Mapp’s good idea to try to amend the bill, but that it is not something that has the support of the majority of iwi.

The proposed section 119B(1) reads: “As soon as practicable after an application has been made under section 119A, Te Ohu Kai Moana Trustee Ltd must determine whether the applicant iwi is commercially qualified for transfer of settlement quota,”. That creates in my mind a bit of a conflict. In a number of speeches in the Committee stage I have heard members complain about patronising things and about overuse of bureaucracy, yet this amendment seems to me to be setting up another such situation, in that more power would be given to Te Ohu Kai Moana Trustee Ltd to make decisions about iwi and hapū groups. I cannot see that being acceptable to, or recommended by, Māori, who want this bill passed so they can get on with their commercial activities.

Another of Dr Mapp’s amendments provides for a right of appeal against a determination of Te Ohu Kai Moana Trustee Ltd. One thing this bill seeks to do is to remove the potential for further litigation, appeals, and so on. By inserting that amendment, we would create another opportunity for people to appeal a decision of Te Ohu Kai Moana Trustee Ltd, and, perhaps, confuse and further complicate the settlement allocation.

Although I thank the member for giving us the opportunity to consider his amendment, United Future will not give support to it, for the reasons I have stated.

I am not surprised by that declaration from Larry Baldock. Everyone knows that United Future does not think for itself—it takes its instructions directly from the ninth floor. Here we have a very simple proposal from my colleague Dr Mapp. So that we understand exactly what that proposal is, let me outline it for a moment—and if the Minister in the chair, David Benson-Pope, thinks I am wrong, he could take a call to point that out.

Māori have been granted 20 percent of the quota allocation. That was done back in 1992. It is theirs. Nobody else owns it—Māori do. That ownership is recognised through the various mandated iwi organisations, but for the past 14-odd years the asset has been held by the Māori Fisheries Commission. At this stage, no Māori has had much value from it, at all. We are now at a point where supposedly there is to be a distribution of that asset. What do we get? We get a bunch of vested interests coming together to work with the Government to put together a bill that will ensure that Māori do not get all of their assets for some time to come—perhaps for some decades, or perhaps even, in the context of the enduring settlement process, for centuries.

I tell Mr Baldock that all that National is saying with this amendment is that if an iwi has a demonstrated capacity to manage its own asset, then surely it should be able to get its hands on it. It is very disappointing that Mr Baldock and the rest of the white planters in the United Future team have decided to bow down and do the bidding of Helen Clark. Mind you, that is something this Parliament is getting quite used to seeing.

I ask the Minister to explain what the objection is to Māori organisations that are capable of managing their own assets—and are well demonstrated as being so—taking control of their own assets. Why do we have to proliferate this problem in our society whereby Māori feel aggrieved? That is what will come out of this bill. It might not be next week, and it certainly will not be on Thursday afternoon, when all the vested interests and their hangers-on turn up here to sing, clap, and carry on—

💬 Darren Hughes: I bet you don’t say that on Thursday.

I will be saying that, and I say to Mr Hughes that I will tell them not to come back when the National Party is in Government and expect some correction to this bill. This is a Labour Party Government mess—no one else’s.

Why can the Minister not tell us that his party does not trust Māori? Labour’s view is that if Māori were to get hold of those assets, they might sell them, and that would be a terrible thing because then they would not have any. Does not that sort of transaction happen all the time in the business world? Is that not a reasonable thing for someone to be able to do? No, the Labour Party Government is not prepared to let Māori have their own assets. Worse than that, Labour wants the management of those assets to continue under the chairmanship and stewardship of some of its closest supporters. I am very worried by clause 104, because it seems to me that it allows the profits of this considerable asset to be used for purposes other than the betterment of Māori—provided that those who are running the outfit say it is for the betterment of Māori. I think we see the seeds of another Crown Forestry Rental Trust being planted.

Supplementary Order Paper 257 is about our having iwi interests at heart and about iwi being able to exercise their rights. I fully support my learned colleague Dr Wayne Mapp’s Supplementary Order Paper. If it passes—due to intelligent recognition of it by others, which cannot always be guaranteed—then the constitution of Te Ohu Kai Moana Trustee Ltd would enable it to set some of the parameters by which this matter could happen in an organised fashion.

Although one could suppose that it is a transgression of the Treaty of Waitangi, one could also liken it to some conditions that exist within the dairy industry, where the same sorts of models apply. One sells and trades within the industry, and that, to some degree, protects the industry. One can go outside the industry, and one can transfer from one company to another; all the companies’ constitutions allow for that, within certain parameters. There is no reason why that could not be allowed for here, and this Supplementary Order Paper would support that. The conditions would be prescribed in the constitution, and it could be allowed to happen as it does in the commercial world as it exists today. As I said, the dairy industry is an excellent example of that.

This issue is about our having iwi interests at heart and supporting their aspirations. However, National recognises that the current Government likes control, and does not like to see those sorts of aspirations actually being given some support. Sure, some iwi may fall by the wayside, but they should be given the opportunity to succeed, and I am sure they would succeed if they had that support.

There is the opportunity, as my learned colleague the honourable Gerry Brownlee has said, under clause 104 for other entities to be created under Te Ohu Kai Moana Trustee Ltd. I am interested in the accountability provisions in relation to that. Again, those would be through the constitution of Te Ohu Kai Moana Trustee Ltd. One concern I have is around the tax provisions. If we look at the commentary on the bill, we see that, with regard to income tax: “As with all settlement legislation the first transfer of settlement assets to an iwi has been exempted from tax.” So the assets are exempted in the initial phases. I imagine that Aotearoa Fisheries Ltd pays full tax, but, from there on, I am uncertain what level of tax would be required to be paid by Te Ohu Kai Moana Trustee Ltd. As has been pointed out, it can create subsidiaries, and they can have what we in the dairy industry would call retained earnings, but any surpluses can be used for other purposes.

I would be interested in the Minister of Fisheries taking a call and explaining to me just where Te Ohu Kai Moana Trustee Ltd sits in terms of tax payment, and whether it comes under the Taxation (Maori Organisations, Taxpayer Compliance and Miscellaneous Provisions) Act, which introduced new definitions of a Māori authority. The definitions include a company established under Te Ture Whenua Maori Act, the Māori Trustee, Māori trust boards, etc. I would like to know from the Minister what sorts of taxation rates all the trusts and trustees identified in this bill—Te Ohu Kai Moana Trustee Ltd, Te Pūtea Whakatupu Trust, Te Pūtea Whakatupu Trustee Ltd, Te Wai Māori Trust, and Te Wai Māori Trustee Ltd—will be paying. I am sure that a significant range of others will be established as a consequence of this bill. Could the Minister please explain to me what sort of taxation rate they will be paying? Will they be paying 19.5c in the dollar, or will they be paying full taxation rates, or are there any other exemptions? It is unclear to me whether they come under the Māori organisation definitions.

I move, That the question be now put.

Part 3 is an interesting part. I think we need to go back to some of the comments that Gerry Brownlee made, because they put in perspective where we have come from since 1992. If we were to look at the period since the settlement of 1992, which allocated 20 percent of fisheries to Māori, we would see that over the last 12 years iwi have had little access to this asset. As we said during the debate on Part 2, one of the problems we found with it was that the asset was actually not able to be accessed by the stakeholder. That was a very important point and was why my colleague Phil Heatley put forward an amendment to allow that sort of access.

Here, in Part 3, Te Ohu Kai Moana Trustee Ltd, in our view, has to be able more easily to give advice, to give leadership, and to promote the opportunity for iwi who can demonstrate that they are viable, are commercially sensitive, and have business acumen—those things that we would look for in a commercial operation—to be able to take over their own fisheries. In our view, Te Ohu Kai Moana Trustee Ltd has a responsibility to be part of that, to be that catalyst, to facilitate that change, and to build that goodwill, which is not there at the moment. At the end of the day, what we are looking for is the ability for the asset, the quota, to be transferred to those iwi who can demonstrate that they have those capabilities. It is my learned colleague Phil Heatley’s assessment that the layers of bureaucracy that are in place do not allow streamlining to take place, and that the process has been shackled because of that.

My colleague Georgina te Heuheu mentioned that Te Ohu Kai Moana Trustee Ltd should be there to set free, as it were, those iwi who are commercially viable and can handle the asset. She talked about their being in a cage, and I felt that was a very good description. Iwi that want access are stuck in a cage and do not have that opportunity. So the real obligation on Te Ohu Kai Moana Trustee Ltd is to ensure there is as little delay as possible in the transfer of this asset. It should be showing good faith, and should be able to move to transfer the asset as quickly as possible.

My colleague Wayne Mapp, with his Supplementary Order Paper 257, has clearly identified a process that meets that requirement and sets some bars. There is a threshold that has to be met, so it is not just a case of giving quota out, of giving the asset away. His Supplementary Order Paper looks to help commercially qualified iwi access their offshore quota. I hope the Minister of Fisheries will take a call on it, as I would be interested to hear his view. I hope other Government members take a call on it, as well. Wayne Mapp’s amendment puts in place some actual thresholds that have to be met, and I think that is important because we want to make sure that the asset is protected. If we look at his Supplementary Order Paper, we see in subsection (2) of section 119B, “Applications for transfer of quota”, that a commercially qualified iwi “(a) is recognised by Te Ohu Kai Moana Trustee Limited as a mandated iwi organisation: and (b) holds, for all relevant quota management stocks, registered coastline entitlements as provided for by section 11; and (c) can demonstrate a positive return to iwi members by means of an increase in shareholder value over a period of not less than 3 consecutive years.” I think that sets a hurdle, sets a bar, which is very important. It is not just a case of giving quota away for the sake of it because it sounds good or because it is expected. If we want to maintain the asset, the amendments on this Supplementary Order Paper should be passed.

I move, That the question be now put.

I want to take a call with regard to Supplementary Order Paper 257, which has been advanced by Dr Mapp. I should say from the outset that I am a little like the honourable member from ACT, in that although I have some concerns about that Supplementary Order Paper I think I will tend to support it. Anything that helps to advance the transfer of quota as soon as possible to iwi ought to be supported, and I think that Supplementary Order Paper 257 does that by recognising those iwi that are already well advanced in terms of how they have managed their quota to date.

Mr Mapp has suggested that three criteria should be the threshold to be met before iwi should receive their quota. One is that there should be a mandated iwi authority. I have no problem with that. The second criterion is that the iwi should hold a relevant quota entitlement. That, in itself, excludes a number of iwi groups. I take on board the comments that were made by the honourable member for ACT, when he made reference to the use of the word “hapū”. In fact, he actually suggested that the word “hapū” should be substituted for “iwi”. I want to say that for the past number of years when quota has been allocated, it has not been able to be allocated to hapū. Why is that? It is because Te Ohu Kai Moana has determined that quota should go only to iwi, and therefore hapū have been excluded from that opportunity. That is in spite of hapū actually signing the Treaty of Waitangi, which this bill is all about. The third of Dr Mapp’s criteria is that iwi groups, in order to benefit from the provisions on that Supplementary Order Paper, should have to demonstrate a track record of increasing shareholder value over a 3-year period. Now I know that, first, hapū will not be able to do that, and, second, some iwi groups would have difficulty in providing that evidence. So I suggest that there is every reason to maintain the essence of the bill.

But if we are to give credence to promoting the transfer of the assets as quickly as possible to iwi, then Supplementary Order Paper 257 certainly recognises those iwi that have already demonstrated their ability to operate in a commercial area, and to increase their shareholder value. I signal our support for that Supplementary Order Paper.

I move, That the question be now put.

I raise a point of order, Mr Chairperson. I know that the Minister will possibly move a closure motion. It was very evident from the Opposition side of the Chamber that three members were on their feet and calling—my two colleagues here, and the ACT member Stephen Franks—before the Minister thought about going for the call. You waited, hoping he would seek the call, and our people on the Opposition side of the Chamber were seeking the call. I think it is beholden on you to accept our position, and to accept calls from the Opposition before accepting the Minister’s call. He was obviously not prepared for the closure motion, and he was not paying attention. In my view and the Opposition’s view, some extra calls should be allowed.

The CHAIRPERSON (H V Ross Robertson): I thank the honourable member for his contribution, and I say this. It is not a race for whoever jumps up first to get the call. The Government side had previously had two people who had risen and sought the closure motion. I looked to that side because I was expecting the call. The call eventually did come, and I am accepting it.

A party vote was called for on the question that the question be now put.

I raise a point of order, Mr Chairperson. The Minister did not actually put the closure motion. You said that you would accept it, but he did not actually put it.

The CHAIRPERSON (H V Ross Robertson): I am sorry; I thought he had put it.

Before he spoke I brought up a point of order, because I knew what he was going to say. Then you overruled me, but at the same time you accepted the closure motion, which he did not actually put.

The CHAIRPERSON (H V Ross Robertson): I again thank the honourable member. It is my recollection that the Minister did actually move the motion, but I did not put the question because the member took a point of order. I can make mistakes, like anybody else, but I am of the opinion that the Minister did move the motion. As the member says he did not, then I have to ask the Minister whether he did. Did the Minister move the motion?

Yes, I did.

The CHAIRPERSON (H V Ross Robertson): I thought he did. Thank you very much.