Maori Fisheries Bill

Part 5 deals with dispute resolution procedures, and provides for the resolution of disputes over specified decisions, including a requirement that decisions be notified to the parties involved, and the application of an extended jurisdiction for the Māori Land Court. There are two issues that I want to deal with. I will deal with the Māori Land Court issue first.

As is clear from this bill, it will be the case, and in fact the bill provides for it, that the Māori Land Court is to be given an extended jurisdiction. Of course that means that it will be given more work. Currently, of course, the foreshore and seabed legislation is doing the rounds with hearings around the country, which also will extend the jurisdiction of the Māori Land Court, so it will have more work there as well. I just want to flag a concern that I think the Fisheries and Other Sea-related Legislation Committee also signalled, but probably not much stronger than that, that if one is going to put a dispute resolution in place that may involve the Māori Land Court, then it behoves this Parliament to make sure that that forum is properly resourced. Nearly all members of Parliament will stand and say: “Yes, we want to see the assets transferred out to Māori as soon as possible so that they can get their economy going forward, which was promised by the 1992 settlement.”

Not a lot of that means much if, in fact, they do run into disputes and find that they are waiting around for fixtures and hearing dates in the Māori Land Court because there are not sufficient resources for that. I just want to raise that issue again.

The other issue I shall talk briefly about in my contribution is the issue around coastline entitlements. Under the bill, assets cannot be transferred to iwi until they have a mandated iwi organisation that is recognised by Te Ohu Kai Moana Trustee Ltd, until they have asset-holding entities and membership registers, and in particular until they have concluded their coastline and other agreements with other mandated iwi organisations for all stocks for which they hold an entitlement.

The bill as introduced made it so that assets could not transfer until there was full agreement on the coastline between adjoining iwi. The select committee came to the conclusion that it was far too onerous, that it could result in the transfer of assets being unnecessarily held up, and some amendments have been proposed, whereby where two iwi agree, say, on 90 percent of their coastline entitlements, and 10 percent remains in dispute, then transfer of assets can occur relative to that 90 percent. So iwi will go into the dispute resolution process on the 10 percent only. As I said, that was agreed to by all the committee. National members certainly thought that that was a big improvement, because originally it made no sense at all to hold the lot up. We have seen how iwi have been very litigious towards each other in recent times, and there was no sense in holding up a transfer of assets if there was dispute only around a small part of the coastline entitlement. It is a coastline agreement. It is on the basis of the coastline entitlement that assets will flow.

I believe that our colleague Pita Paraone has a Supplementary Order Paper in relation to this part that I am sure he will address shortly and will add a refinement.

Part 5 deals with the dispute resolution process. Where there is dispute over issues such as coastline, or any other issue to do with governance of a particular iwi organisation such as Te Ohu Kai Moana, Te Ohu Kai Moana Trustee Ltd, or Aotearoa Fisheries, Part 5 makes it clear that there is a way forward for Māoridom. I will not dwell too much on the excessive need—we might say—within Māoridom to have a disputes resolution process, but it is fair to say that this country has seen that often Māori groups do not agree. There is dispute particularly over tribal areas and where the boundaries have been. It certainly should not come as any surprise that changes of boundary amongst different hapū, iwi, and whānau groups occurred over the centuries and undoubtedly happened in this country, and it has, just as it has happened in other countries such as the United States of America with its indigenous people, and in Australia, and European nations. There will always be changes in boundaries.

However, it is particularly pertinent to this legislation, simply because the allocation model of inshore quota of various fisheries such as snapper, mullet, flounder, and all sorts of inshore species, is largely dependent on the length of coastline that can be attributed to a particular iwi grouping. Therefore, by definition, the length of coastline, where that coastline starts and stops, is intrinsically tied back to how much quota iwi groupings get and what value the final settlement will be. Around the fringes we will get debate about coastline, where it stops and where it starts.

Unfortunately, as introduced, this legislation saw that all assets were unable to be transferred to an iwi until it had concluded its coastline boundary agreements with neighbouring iwi. In other words, an iwi could not get any of its allocation if it was still arguing about the length of its coastline and where it stopped and started. That meant that a dispute over a few kilometres of coastline, whether it was warranted or just vexatious, could hold up the allocation of all assets over the entire coastline. So a disgruntled iwi group could hold up the allocation for some other iwi group, just because they were disgruntled, and we saw that as quite absurd. Changes were made at the select committee, and Pita Paraone will improve on them again through a Supplementary Order Paper that he has tirelessly put together and put his name to. However, the select committee did come some way to improving on that current situation.

The amendments now incentivise agreement by allowing assets relating to the undisputed coastline to be transferred immediately, while the assets relating to the coastline that is in dispute will be set aside pending coastline resolution. In other words, if 95 percent of an iwi group’s coastline is not under dispute, if there is agreement that that coastline is relative to a particular iwi, always has been, and no one is going to argue about it, then the assets and the quota relating to that coastline can become the iwi’s and be allocated to it, whereas the 5 percent that is still under dispute can be held back from allocation until dispute resolution occurs.

This short part raises an issue of major significance and I do hope the Minister realises that today, of all days, he should be prepared to speak on this part. Part 5 states that disputes will go to the Māori Land Court. The Māori Land Court is under a cloud at the moment. It has been put under a cloud by this Government. The Māori Land Court was being taken to the High Court for conflict of interest. That is a three-word term for bias. The bias alleged by this Government was that someone who had iwi affiliations could not sit on a matter that touched that iwi. How will we find Māori Land Court judges who do not have an interest in an argument involving a settlement? Every Māori Land court judge who has any Māori inheritance will have an interest one way or another in who gets part of the settlement.

💬 Pita Paraone: There will be non-Māori judges.

I can think of one. If Pākehā judges sit on it, perhaps that may work. If that is the case, why was it not just sent to the High Court? Why were those disputes not left for resolution with the benefit of the impartiality that is available to every other commercial entity in this country? Today of course the Government has done some sort of a deal with the Māori Land Court and it has withdrawn its application. It says that it is thinking about whether it will go ahead and try to get an adjournment of the case brought by Ngāti Porou on the seabed and foreshore. What that says about this part of the bill is that it has woken up to the likelihood that the Māori Land Court is hopelessly compromised.

Sitting suspended from 6 p.m. to 7.30 p.m.

The CHAIRPERSON (H V Ross Robertson): Prior to dinner, at 6 o’clock, the Committee was considering Part 5 of the Maori Fisheries Bill. The honourable member Stephen Franks was speaking. He has 3 minutes remaining, if he wishes.

Mr Franks had to go to a Māori Language Week function, so he cannot speak. They were not prepared to alter Māori Language Week for Parliament. But perhaps I could have leave so I can complete his speech.

The CHAIRPERSON (H V Ross Robertson): The House is the master of its own destiny. The member is seeking leave for that. Is there any objection to that course of action being taken? There is.

Mr Speaker!

The CHAIRPERSON (H V Ross Robertson): Point of order—

No, this is not a point of order. I am going for the call.

The CHAIRPERSON (H V Ross Robertson): OK. I call the Hon Richard Prebble.

Thank you, and I thank the Government for now giving me 5 minutes, rather than 3, which I am sure was its intention. I draw the attention of the Committee to the fact that, under this part, all disputes that may occur with regard to fisheries—which is a very commercial matter—will be referred to the Māori Land Court. I do not know how many members have experienced dealings with the Māori Land Court, as I did, earlier in my legal career. Without wishing in any way to be disrespectful to that court—[Interruption] I do not wish to be disrespectful to that court. It is not a court. It is actually a tribunal. It is not equipped to handle those matters. There are possibly millions of dollars involved, and the questions could be highly commercial, and the judges who have been chosen have been chosen for their experience in Māori land law, not in commercial law.

This is another example of how this bill, instead of passing over fishing quota to Māori so that they can have it in the same way as any other New Zealander, has passed it over together with extraordinary red tape and obstacles that would damage the economic prospects even of a Ron Brierley, let alone a group of iwi who have never had to administer anything of this sort before. This part is an example of political correctness run rampant.

💬 Hon Dover Samuels: What about?

I am sure Mr Samuels could contribute to this part, and I wish he would, because, again, I think it is an insult not just to the House but also to all Māori that the Government is not prepared, at the Committee stage, to deal with the questions that are being asked. I have been listening to the questions being raised on this part. Questions have been raised by Mr Franks, who is Parliament’s leading commercial lawyer. He told the Committee that in his commercial legal experience, this part will be impracticable. It is also an unfair thing to be doing. I am not disputing the fact that Parliament is now handing over quota to Māori fisheries. That has already been done. What we now ought to be doing is ensuring that those who receive those resources are able to use them. It is a handicap not just on Māori but on all New Zealanders. If we are not able to handle the fishery efficiently, profitably, and sustainably, not just Māori but every single New Zealander will be the loser.

It is a great shame that the United Future party, which likes to say that it knows about small business, supports this part. Would United Future like to have a law passed that small-business men must go to the Māori Land Court to have commercial issues sorted out? Of course it would not. It would not do that to its worst enemy. Yet its members are quite prepared to sit in this Chamber and vote for this legal gobbledygook—this absolute nonsense. If any member opposite claims to be knowledgeable in commercial law—and I do not know of any—I would like him or her to get up to explain why the Government is supporting this part, how it will work in practice, and whether the Māori Land Court is equipped to handle the matter.

Would the Minister in the chair, David Benson-Pope, get up and tell us whether the Māori Land Court, in fairness, will get extra resources? Will it change the sorts of judges who have been appointed? Because its judges have not been appointed for their knowledge of commercial law. I cannot think of any Māori Land Court judge who has had any involvement in commercial law. There may be one, but I am running the list of present judges through my head, and I cannot think of one. Again, I do not say that disrespectfully. I just state it as a matter of fact. It seems to me that the only thing going for the Māori Land Court is the word “Māori”. I cannot see any other reason.

First of all, I stand in support of my amendments, in particular my proposed new clause 139A. Before I elaborate further, I want to make similar points with regard to my concern about extending the jurisdiction of the Māori Land Court to this issue. I reiterate my earlier concerns about this imposition on the Māori Land Court—a court that at the present time, given its workload, is not up to date with its work. The other concern is that it needs to be resourced properly, and I have my doubts as to whether that will occur. This bill will impose more work on the court, which, essentially, was set up to deal with land issues.

With regard to the coastline, in my earlier amendments I referred to the issue regarding the iwi who have already signed a deed of settlement with the Crown. As part of the deed, all parties involved were shown the actual boundaries that their claim covered. It seems to me that under this bill that agreement is not recognised. Again, it opens up the possibility of not only iwi but also those who wish to counterclaim against those iwi relitigating the issue of tribal boundaries and, not least of all, coastline.

I believe that the bill should recognise tribal boundaries where they have already been agreed under the settlement, because failure to do so would certainly allow litigants to go back to court and argue the very issues that have already been argued. Ngāi Tahu have spent exorbitant amounts of tribal funds defending their position and putting on the record their claim, and, as a consequence of High Court and Privy Council action, they have had their claim justified. With this bill, we have the possibility of tribes who do not agree with the Ngāi Tahu arrangement relitigating the issue. I just want to make sure that the Committee is aware of that, because I know that when future claims are settled, this very issue will come to the fore.

The new clause I am seeking to include in the bill addresses those issues, particularly where the dispute is based on facts or evidence previously raised in proceedings before a court and that relate to whether the area described in the relevant takiwā defining deed of settlement or takiwā defining enactment is, in fact, the takiwā of the defined takiwā iwi. Further to that, the proceedings did not result in a finding that that area is not the takiwā that defines takiwā iwi. Therefore, I think it is appropriate that my proposed clause should be inserted in the bill. Kia ora.

In speaking to Part 5, which is about dispute resolution, I would like to take up the concerns about the Māori Land Court. The bill states that if any disputes cannot be settled and are referred to the Māori Land Court, the court can make a determination but it is non-binding. Why on earth would anyone want to take a dispute to the Māori Land Court and have a decision made when it is non-binding? I can see the potential for the courts to be clogged up to some quite serious degree.

One of the minority views in the commentary refers to different iwi within the groupings of Hauraki, Te Ārawa, Ngāpuhi, and Ngāti Kahungunu that have a concern and a dispute with regard to their identification of their coastline and their entitlements within this bill. I suggest that they will seek an opportunity to relitigate their position in accordance with Part 5 and raise all the matters they have raised previously. I see in the Hui-ā-tau Treaty of Waitangi Fisheries Commission report that a number of these matters have been before the courts. The report states that the court dismissed all Ngāi Tahu’s claims against the commission. It also dismissed allegations made by the Urban Māori Authority’s Whata-Wickliffe and Thompson plaintiffs, including the latter’s allegation that Te Pūtea Whakatupu Trust would be inadequately funded. I am not sure of the relevance of that. However, the report states that the courts determined: “The appellant’s arguments that the Commission had consulted with a closed mind (because in all its reports it had stated its view that there were no inequities) cannot be sustained.”

Regardless of that, I suggest that Hauraki and some of the other iwi may seek to relitigate this whole process in accordance with the dispute resolution, because it has to do with the coastline and their entitlements and boundary issues in relation to that. I think that the Māori Land Court will become inundated with relitigation matters and will definitely need resourcing to deal with them. I think those cases will be long and protracted. It has taken about 10 or 11 years—

💬 Hon Member: 12 years.

—12 years for this particular bill to get to this point. I suggest that those disputes could block the courts to that degree. So there are considerable concerns around that. For the decisions by the Māori Land Court to be only recommendations and not binding makes one ask oneself why any iwi would bother to take a case.

Earlier on the Minister was challenged to make a response with regard to trusts and say what their taxation rates would be. The report I referred to earlier states that the commission developed deeds and constitutions for the respective trusts and that each of those entities will have a role in the central management of some of the settlement assets after the Maori Fisheries Bill has been passed. It also states that discussions with the Inland Revenue Department have clarified the tax status of all those entities. The department has advised the commission that, based on the draft bill, Te Ohu Kai Moana, Te Pūtea Whakatupu Trust, and Te Wai Māori will all be charitable organisations for tax purposes. That means they will be paying 19.5c in the dollar.

One has to wonder how that weighs up against other organisations. Aotearoa Fisheries Ltd will be a Māori authority, and I presume it will pay the same sort of taxation rates as all other entities with that commercial status. However, it is not clear whether that is the case. Again, I ask the Minister to take a call in relation to Aotearoa Fisheries Ltd and clarify what tax status it will operate under to ensure there is a level playing field in the commercial world in relation to fisheries.

I also want to ask a question of the Minister about Part 5, “Dispute resolution”. I note from the preceding comments of my colleague Sandra Goudie that the Minister has not been in the habit of answering the questions that have been asked, but I hope he will consider doing so on this occasion.

My issue concerns the area of coastline that is still under dispute. I take the opportunity to congratulate the select committee on the work it has done, because the bill as introduced meant that areas that were still under dispute along coastlines tied up the whole allocation for the iwi involved. In an earlier contribution, the Hon John Tamihere said that it was National Government’s fault that this matter had taken 12 years to progress. That shows a scant regard for the facts.

This issue was initiated with the deed of settlement in 1992, and it was acknowledged at the time that it would take some time for Māori themselves to work out how to allocate the resource. Governments could have forced that issue, but to do so would have been silly and would have created more problems, as, I think, the Hon Dover Samuels is now acknowledging. What we have done is given Māori themselves time to come to an agreement around allocation. In most cases, I suspect, particularly regarding the allocation pertaining to coastline, we now find that agreement has been reached, and that is great.

But what I want to know from the Minister—and I am hoping he will be able to answer this—is what area is now resolved and what are the areas that are unresolved, because then we may have that sort of knowledge, and as MPs we are in a position to help facilitate these sorts of resolutions so that further allocation can occur. After all, that is what this whole matter is about—it is about making sure that this resource is available for the betterment of Māori. I say good luck to them, and we should let them get on with the job. That is why we are here, 12 years after the original deed of settlement. But the select committee was clearly of the view that without the very sensible amendment that it came to, the allocation process was unnecessarily tied up, so that over an area of, perhaps, 1,000 kilometres of coastline, there was general agreement on, say, 950 kilometres but there was a dispute over the remaining 50 kilometres.

💬 Hon Dover Samuels: Give the other 50 to Pākehā.

Dover Samuels is extremely generous tonight. I wonder whether he has been upstairs to the ninth floor to make sure he has had that approved. [Interruption] No, I do not think he has, but I thank him for his generosity, even though it was not well meant.

The issue around dispute resolution and the change that occurred in the select committee now mean that the allocation in the case I have just given can occur with 99.5 percent of the resource, and there can be further discussions to try to resolve the differences on the remaining 50 kilometres. So that is a vast improvement. It would be helpful if the Minister could take a call and define the amount of coastline involved that is still tied up in dispute. It does not look as though he will take a call. I was certainly hopeful that the Minister might answer a few questions, but no. We are in the Committee stage, debating the Maori Fisheries Bill, and Mr David Benson-Pope is the Minister in the chair—and there is little point in asking questions if he is intent on ignoring them or refusing to answer.

I move, That the motion be now put.

The CHAIRPERSON (H V Ross Robertson): The member moved the closure motion wrongly, and therefore I cannot accept it.

I am talking with regard to my amendment, and, in particular, to the new clause I would like to insert, clause 145B. But before I go on, I would ask whether there can be a slight amendment. It is only a typo with regard to where the insertion should take place. The amendment refers to page 182, but it should read “page 183”. It requires the mandated iwi organisation of an iwi whose takiwā is defined in a deed of settlement or enactment to retain quota allocated to it if the entitlement of that organisation to the quota is the subject of a dispute under Part 5 of this bill, or proceedings in a court. In that case, the mandated iwi organisation is required to retain the quota unencumbered until either the date on which the dispute is resolved or judgment is given or the proceedings are withdrawn; or the date 2 years after the commencement of the dispute or proceedings—whichever is the earlier.

I hope that there will be agreement on the inclusion of this provision, because again, as I said earlier, I would not like to see this whole issue being relitigated between Māori and the Crown, when there has already been agreement to a particular description, boundary, or whatever we might call it. So I ask that this new clause—after the minor amendment I requested earlier—be inserted in the bill.

I move, That the question be now put.