Maori Fisheries Bill

Part 7 relates to amendments to the Te Ture Whenua Maori Act, which, of course kicks in when Māori have to go to the courts. In particular, Part 7 deals with mediation issues. An issue to do with mediation might arise in relation to coastline boundaries, to the population of a particular iwi group, particularly those that are withdrawing from a larger iwi—perhaps in the case of Ngāti Hine from Ngāpuhi, or Rongomaiwahine from its principal iwi group—or to other issues that may need to be resolved.

There is no doubt in my mind or in the mind of the National Party that Māori groups will go to mediation in relation to this legislation. It is vexed legislation, simply because it tries to push forward the situation of the Māori settlement so that Māori can just go fishing. But in many ways the legislation falls short because it contains significant flaws, and we have been through those clearly clause by clause this evening and last week.

However, I would particularly like to address the mediation clauses in this part. We may have a situation, such as the one we talked a little bit about earlier, where there are coastline disputes. When the bill was introduced, I referred to coastline disputes in relation to quota allocation. Quota is allocated on coastline, so if an iwi can determine clearly that its coastline fits a certain boundary, from point A to point B, but another iwi says that that interlopes into its area, and there is an area of dispute as to where one iwi’s coastline ends and another iwi’s begins, then originally the former iwi could not pick up any of its allocation. Even if it had 99 kilometres of a 100 kilometre coastline boundary that was acknowledged by everyone as being its coastline, and 1 kilometre that was under dispute, the whole allocation relating to the entire 100 kilometres would be locked up in the dispute.

We made changes to the bill in the Fisheries and Other Sea-related Legislation Committee, which have been reported back to the House and voted on this evening. Now we have a situation where the allocation of 99 kilometres, if they are not in dispute, can go ahead, and Māori can go fishing while the dispute over the other 1 kilometre is resolved. That is good.

Pita Paraone proposed amendments to both Parts 1 and 5, whereby if particular Māori groups—he used Ngāi Tahu as an example—had had coastline boundaries, and other issues that might come under dispute, already examined by the courts, and if a judgment had been made in their favour and a Crown treaty settlement had resulted from those court decisions, then those issues should be beyond question. Those are the amendments Pita Paraone brought to the Committee, and the National Party voted in favour of them tonight. Now, of course, more iwi will use the mediation clauses in Part 7, because this Government refused to support Pita Paraone’s amendments. That is shameful. All we will see now is Māori and iwi right across this country dipping into Part 7. Part 7 comprises just a few short pages, but, unfortunately, because they deal with disputes in the courts, with mediation, and with all the problems that may result from the preceding legislation, we will see those clauses used most within Māoridom over the next few years—because there will be mediation and there will be disputes. A lot of those disputes could have been fixed here tonight, not least by the clauses proposed by Pita Paraone had the Government supported them.

I commend this issue to the Committee.

We are now dealing with Part 7, “Amendments to Te Ture Whenua Maori Act 1993”. This part is essentially all about bringing into play the Māori Land Court, and the point has already been well made that this court is already burdened down with conflict and beset with problems. Even the Government has some serious questions about the personnel of the court. So here it is, loading it up with even more tasks to resolve. At one stage this court had quite a narrow focus. It dealt solely with issues amongst landowners. Dover Samuels, who is a man well noted for not taking any calls in the House, would know all about the role of the Māori Land Court in that regard. But over time, we have seen creeping jurisdiction.

This legislation provides for the court to deal with all sorts of mandating disputes—major boundary disputes; which iwi owns what. It is no longer just an issue of individuals owning particular parts of land; rather, it is an issue of deciding tribal boundaries, and, going even further, deciding which iwi can back out of the legislation. That is contained in the clauses inserted after clause 14 by the Fisheries and Other Sea-related Legislation Committee.

It will be the court, I predict, that will actually have to work out whether Ngāti Hine and Rongomaiwahine are able to back out of their existing iwi and become iwi themselves. Members should think about that. The people themselves say they are an iwi. On the face of it, that seems a reasonable proposition. Who ultimately gets to decide? It is not the people themselves but a court. So, potentially—and this must seem truly absurd if one analyses it—a court will decide whether a people is a people. We are now passing law in this country where it is left to courts to decide the identity of a people. It is the sort of precedent we are seeing in other legislation. I know I am not supposed to talk about other legislation but I will mention, with brevity, the Foreshore and Seabed Bill. The problem is the same there, as well. I suggest that all of this is frankly asking courts to do more than they are equipped to do. If Parliament really believes that Ngāti Hine and Rongomaiwahine are iwi, then it should say so. We are the representatives of the people. Even Mr Samuels, the man who never speaks in the House, represents some people. One would think that his people would bring their kaupapa to the House, and say: “Mr Samuels, speak on our behalf.” He should rise so that we can hear his voice speaking on behalf of his people.

💬 Hon Ken Shirley: Leave it to the Māori Party.

He is going to leave it to the Māori Party, I understand. It will be the voice of the people, it seems. But I come back to the serious point whereby we are asking courts to make extraordinary determinations—not just about disputes between owners, which is the sort of thing courts are set up to do, but actually about the identity of a people. I ask the Government whether it has thought that one through. I ask the Labour members on the select committee, who took a pioneering role in relation to advocating the case of Ngāti Hine and Rongomaiwahine, whether they thought it through. Did they really intend that a court should have the ultimate determination as to the identity of a people? That is not my understanding of rangatiratanga. Surely the very essence of that term means that people decide their own identity. Instead, we have the whole idea debased and devalued by allowing an unelected—I was going to say unaccountable, but I guess the appeal would go ultimately to the Court of Appeal and the Supreme Court.

My very hard-working and learned colleague Dr Wayne Mapp has just raised the issue of the Māori Land Court being called upon to decide the identity of a people. I will follow on with this line because it is a serious issue.

Every 5 years in New Zealand we have an official census. But even in that very official process, a person’s choice of ethnicity is left entirely to the individual. So if people feel an affinity to Māori, Pacific Islanders, or Asians, then they can identify themselves by ticking one of those boxes. Some will put “New Zealander”, because they resent the fact that there is no box giving that definition. It has always been accepted in New Zealand that people can decide their ethnicity themselves. The Labour Government—a minority Government, I emphasise—has consistently found it difficult to be specific. [Interruption] If the Hon. Dover Samuels wants to make a statement or answer some of these questions, then I invite him to take the next call. I am sure the Māori community would love to hear one of their representatives speaking on their behalf and answering some of my questions.

I come back to my point. The minority Labour Government has made an art form of kicking difficult issues off to a court or a select committee for an inquiry rather than being fair. After the Government has kicked these contentious, difficult issues off to the Māori Land Court, there are not many parameters guiding the court on how it should come to a decision. Then, if the court makes a decision and suddenly public opinion is against it, it will be accused once again by the minority Labour Government of judicial activism. The Government will then blame the court when it makes decisions that may prove to be unpopular with the public. If the Government kicks this difficult problem to the Māori Land Court to decide who would constitute a separate iwi, then the Minister, or some Māori member of the Labour Party, should take calls and explain what the parameters are and what the guidelines are. When would the court know that it is actually carrying out the spirit of this legislation? The Minister should take a call.

I posed another question in relation to Part 6. I asked the Minister whether he could give the public and the Māori community an assurance that the Māori Land Court, which has suddenly been assigned so much additional responsibility, will have enough funding. Will that court be properly funded to carry out the additional responsibility that is conferred upon it by this legislation? The Minister should take our questions seriously. Everybody knows that this issue has taken 14 years to come to this Parliament, and we should not leave too many loose ends. I think the Minister owes it to the public to answer this very serious question that we pose to him.

I was hoping that the Minister in the chair, the Hon David Benson-Pope, would take that call. Both the two previous speakers have asked him to take the call. The issue that has been raised is important, and successive speakers in this important debate have called for an explanation.

The ACT party’s overall concern about this legislation is the bureaucratic bad governance that it is establishing. But here we have another consequence, which I would have hoped was an unintended consequence, and it is a very serious one: the Māori Land Court is to be called upon to make these determinations, when, arguably, it is not equipped to do so. Inevitably, the court will be brought into disrepute, or it will certainly be placed at risk of being brought into disrepute, for making such decisions. We are hearing evidence on parallel legislation—the Foreshore and Seabed Bill—where submitter after submitter, even as recently as yesterday, said that there is nothing more insulting than to question or to challenge one’s whakapapa, yet here we are saying that we will have a judicial body charged with that responsibility. I sense all manner of problems with that, as do other speakers before me. It behoves the Minister in the chair to stand to defend it.

This is the Committee stage of the bill. We have Ministers in the chair so that they participate and answer questions, and, hopefully, convince the Committee of the logic of why the Government is passing these measures through in legislation. Instead, we have a Minister who sits like a dunce in the corner with his hat on and does not answer our questions—and he should. I ask him to take a call to answer that question.

We know that the system we have under the quinquennial census allows people to make and nominate what ethnicity they might be—and it is a curious thing; I think that few other countries have such a system. For my part, I always put myself down as being a Pacific Islander. Why do I do that? It is because I am a New Zealander, and, as New Zealand is a Pacific Island, I am therefore a Pacific Islander—end of argument. Others feel the same. People tick all sorts of boxes in the census papers. A lot of people were quite surprised that the last census showed we had a huge upsurge of Kalahari Bushmen in New Zealand. No one really knew where those Kalahari Bushmen came from. It turned out that the McGillicuddy Serious Party decided, en masse, to register in the census as Kalahari Bushmen. So the New Zealand census shows we have a whole range of Kalahari Bushmen—

The CHAIRPERSON (H V Ross Robertson): Order!

You may think that this is stretching away from the part, Mr Chairman, but in fact it is not; it actually goes to the heart of the responsibility we are giving to the Māori Land Court, and so much flows from that. A lot of commercial aspects are associated with it. My colleague Richard Prebble, who took a few calls in an earlier part, highlighted the fact—and we have it here in the ACT quarters—that the new income tax provisions mean that all the authorised Māori bodies in the bill will enjoy a tax rate of 19.5 percent tax. Where is the commercial neutrality in that? I think it is great. I think everybody should pay tax at 19.5 percent, and good luck to Māori if they can. But it is grossly unfair when one segment in society, because of some racial basis, enjoys a taxation advantage.

What is the country coming to? Let us be quite clear, I am not against Māori enjoying a tax rate of 19.5 percent; I am just saying that everybody should enjoy it on that basis. We want these commercial enterprises to be successful, and I believe they will be. But what is the message we are sending? Are we saying that Māori cannot run a proper business and need to have a tax concession relative to everyone else’s? How could one be more patronising than that? That is deeply patronising and insulting. I ask the Minister what the justification is for that. He has not answered that question.

I want to ask the Minister just what the intent of Part 7 is. I am somewhat mystified by where this legislation is heading under this part. It is certainly important that the debate signals that this legislation is bound to cause major dispute. The way the bill has been written means that it will be only a matter of months after its passage that disputes will arise in respect of all sorts of aspects of it. The reason is the odd structure that has been put around this fisheries settlement.

I would like the Minister in the chair, the Hon David Benson-Pope, to explain why the Māori Land Court is now to be involved in disputes around this matter, because if we stand back a bit from the fact that this bill is being put together as a political deal rather than as a legislative ideal, we will see that the organisations constituted under this legislation have the corporate powers of a person—the same as anyone else. We have a well-established contract law that has dealt with commercial and ownership disputes for many, many years, and I would like the Minister to tell us why the ownership of these particular assets merits a special jurisdiction when it comes to disputes. I would be keen to hear an answer from him about that.

The other thing I would like the Minister to explain is why in this part the Māori Land Court now has a completely new jurisdiction over the operation of a mandated iwi. The issue of how iwi are mandated by this legislation is a major issue in itself, but given that Parliament has now decided to legislate for iwi—to recognise them in statute in a way that has not been done before—why is it that the Māori Land Court has now been given extensive powers? I refer the Committee to the orders and interim orders that the Māori Land Court can make under section 26L inserted by clause 169. It can require new elections or the appointment of office holders of a mandated iwi organisation. That seems to be an extraordinary power to give to a court.

This Parliament has every opportunity to legislate, in a general way, for civic organisations, and it often does. By civic organisations I mean corporate bodies of different sorts, such as incorporated societies. In this case it has been decided to legislate for iwi. There is a whole set of processes of public law to deal with problems that arise in those organisations, but here we are extending the jurisdiction of the Māori Land Court in a way that I think is bound to cause trouble. Iwi have been a fluid type of organisation. Their membership tends to change. The views held by the people of the iwi about the iwi are being regarded as much more important than anyone else’s. But here we are putting them under the jurisdiction of the Māori Land Court, which can require new elections. It can require Te Ohu Kai Moana Trustee Limited to suspend recognition of a mandated iwi organisation until specified changes are made to its constitutional documents. Well, that seems to be going much too far.

This legislation has in it the kaupapa that is required to become a mandated iwi. I presume an iwi cannot be mandated until it meets the kaupapa laid down in the legislation. Why then does one give the Māori Land Court the capacity to change that constitution? The constitution is legislated here. It seems to me to be fundamentally contradictory that Parliament legislates the constitution of these iwi—I personally think that in the long run that will be a mistake; nevertheless, that is what Parliament is choosing to do—and then tells the court that it can change it. I would like the Minister to explain that, because, if the Māori Land Court can change it, what does it mean when we vote for these kaupapa later in the bill?

I raise a point of order, Mr Chairperson. I seek your advice on a ruling. A number of members on this side of the Chamber have been raising serious questions about different aspects in various parts of the bill, not least those raised by my colleague the Hon Bill English. Now it has come to my attention that we do not have any officials present to assist the Minister in this matter. At present the Minister is refusing to answer the questions that are being put to him, as is his right. But I seek your guidance as to why officials are not present to assist the Minister in answering those questions. I ask whether this is normal practice, whether it is at the sole discretion of the Minister that the officials are excluded from the debating Chamber, and whether the Opposition can ask you to rule to have the officials present in order that the questions raised by my colleagues can be answered.

Firstly, there is no obligation on the Minister to take a call or to answer any questions. That is entirely over to the Minister. Officials are in the back room, and, if the Minister wishes them to be present, they can be summoned at the drop of a hat. Other than that the matter is noted, but I cannot take it any further.

I seek leave to table a document entitled Hui-a-Tau, which is a Treaty of Waitangi Fisheries Commission document that outlines a number of matters, including the matters recently referred to in the discussions on the bill with regard to Inland Revenue Department status of these trust entities.

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

I move, That the question be now put.

I want the Minister to answer the questions that were asked by the Hon Bill English. The Hon Bill English pointed out that in an earlier part of the legislation we have ratified the constitution of iwi, and now the proposal in Part 7 is that the Māori Land Court can actually change those constitutions. There may be a very logical explanation for that, and we have just had, via a point of order, evidence that the officials are available to help the Minister answer the questions. But the Minister has decided that the officials should stay out of the Chamber, and the Minister has also decided that he has no intention at all of answering the questions that have been raised.

I have listened to the whole of this debate, either from in the Chamber, or from my office, and considerable numbers of questions have been raised throughout the Committee stage. I do not think I have ever seen before, in my long time in this House, the arrogance that has been shown by this new Minister.

💬 Pansy Wong: He does not care.

He clearly does not know the answers to the questions, otherwise he would stand up and address the answers, or else, as my colleague Pansy Wong says, he simply does not care. Well, I have to say that the Opposition takes the Committee stage very, very seriously. It is the opportunity for us to examine the legislation in detail, to ask the Minister to answer the questions, and, certainly, to ascertain whether the Minister understands his own legislation. Clearly the Minister is either treating this Committee with absolute contempt, or he simply does not understand, in which case he is too embarrassed to bring in his officials and get their assistance.

The questions asked by the Hon Bill English were relatively simply. We have passed earlier stages of this legislation that establish the constitution of the iwi, so why are we now giving the Māori Land Court, as a means of resolving disputes, the ability to change those constitutions? It is a simple question that even the Hon David Benson-Pope should be able to understand.

💬 Phil Heatley: No, no, he would not be able to.

He should be able to understand the question. I cannot put it any more simply than that. The question then becomes: does he have the ability to answer it? We suspect, by the way he sits silently looking at the comics, that he does not have the ability to answer it. But, as we have just found out by the brilliant point of order raised by my colleague Simon Power, the officials are available, sitting in a back room. I do not recall a time before—

💬 Phil Heatley: Scared witless!

I am not sure they are scared witless. How do we know? They are hiding in a locked room, and are not allowed to come in and assist the Minister. I do not think there has been a major bill such as this, 250-odd pages of legislation, where we have ever seen such an arrogant cavalier attitude from the Government. He leaves the officials outside, and he sits throughout the Committee stage with no intention of answering the questions. It begs the question, frankly: why do we bother? Why do we bother battling through the whole afternoon and evening raising serious questions? Darren Hughes simply laughs about them, because he cannot understand them and he cannot answer them. The Minister sits there glumly viewing the comic pages, and the officials are excluded from the Chamber and are not able to offer any attention. I find the arrogance of this Government unbelievable.

I do ask again in my closing seconds that the Minister simply take the opportunity to answer the odd question. I am sure we will give him an opportunity to call in the officials, and have a bit of a discussion with them so that he can understand the questions and understand the answers. Then the Minister can simply stand, earn his LTD and high salary, and answer the odd question on the Māori Fisheries Bill

I move, That the question be now put.