Aquaculture Reform Bill

We now come to the contentious part of the Aquaculture Reform Bill and why the National Party will oppose it. There was talk throughout the select committee process about unfinished business associated with the 1992 deed of settlement. I did what any responsible member of the select committee should have done: I sourced a copy of the deed of settlement and read it. That deed of settlement settled all commercial-fishing interests—coastal, inshore, and offshore. There was no unfinished business in that document signed by Māori of the day as a full and final settlement.

We told officials and many other people that if there was some unfinished business in something as major as the deed of settlement, there would be a paper trail. We were assured that there would be a paper trail. The more we asked for it, the less available that paper trail was. There is no paper trail of this unfinished business. There is, in fact, no unfinished business. What we have here is folklore associated with Māori determining that they would not mind another bite of the cherry, and the Labour Government being silly enough to see it as a means of settling its embarrassment over the seabed and foreshore legislation.

The Government kept saying to us that it was based on a Crown Law opinion. After weeks and weeks of demanding the Crown Law opinion—in fact, I got the select committee members to the stage that they were prepared to go on strike and not do any more consideration of the legislation until we had received that vital Crown Law opinion—we finally received it. I would like to describe it as five pages of waffle, but I can describe only the first two pages as waffle, because the next three pages of that all-important document are completely blanked out. That is the basis on which the Labour Government is giving up to 40 percent of future aquaculture space to Māori: a legal opinion from Crown Law, from one Mr Peter Andrew, that is so poor that the Minister is so embarrassed by it that he causes it to be presented to the select committee with three pages blanked out.

The select committee did happen to receive some other quite interesting information, which appeared unannounced. It was not requested by the select committee, because we did not know that it existed. It was information collated by Gardiner and Parata, which I understand is a firm of consultants here in Wellington. It was dated 20 May 2002, and we were told that it was commissioned by Te Puni Kōkiri. Gardiner and Parata went back amongst people it knew to be associated with the original negotiation of the deed of settlement, to ask whether there was any truth to the argument that there was unfinished business.

The first person it talked to was Phil Major, a senior adviser to the then Minister of Fisheries, the Hon Doug Kidd. It is worth noting that he currently works in Mr Sutton’s office. Was aquaculture excluded from the deed of settlement? Mr Major’s response was that he could not recall the matter being explicitly on the table. The firm then interviewed the Hon Doug Kidd and asked him whether aquaculture had been excluded. He said there would be no documentary trail, because his recall was that the matter had been raised briefly on one occasion, but that it was of no great substance. It then interviewed the Rt Hon Doug Graham. Similarly, he made the comment that aquaculture had not been on the table. It interviewed Denese Hēnare, who apparently was a negotiator with Bob Māhuta, and she was able to state quite categorically that she did not recall any substantive discussion, or any documentation being tabled, on aquaculture.

They are only some of the people whom Gardiner and Parata interviewed. That clearly proves to me, and to anybody interested in the truth, that aquaculture was never on the table during the discussion of the 1992 settlement. Furthermore, anybody who reads the 1992 settlement will see that it was signed up to by Māori as a full and final settlement of the grievances associated with commercial fishing, yet 12 years later we are reinventing the wheel and recreating the grievance industry for generations to come. I say to the Minister in the chair, the Hon Benson-Pope: “Shame on you for being involved in this legislation.” I also say: “Shame on the Labour Party for being involved in this legislation, and shame on New Zealand First for being prepared to support this legislation, which is without foundation.”

I would be prepared to accept this folklore of unfinished business, if anybody had presented any evidence at all of it to the select committee. At one stage the Hon Dover Samuels revealed to the committee that he had been one of the Māori negotiators. That was news, I think, to both the Labour members and the National members on the committee. He promised to table written documentation proving absolutely that aquaculture had been deliberately put to one side, but I tell Dover Samuels that, to date, I am still waiting for those papers. I guarantee that we will never receive them, because they do not exist. Folklore has developed around there being unfinished business; it is without foundation, but we are passing legislation that will gift to Māori up to 40 percent of aquaculture space.

Enough grievance has been associated with the Treaty of Waitangi. The National Party has a proud record of moving legislation through the House to put those grievances behind New Zealand. Yet, sadly, tonight we are reopening those grievances, and without justification. Anybody who has studied this legislation, as I have, will note that in the deed of settlement with Ngāi Tahu we specifically gave them the right to have 10 percent of new aquaculture space by pre-emptive tender. It was not a gift, but they had the right to obtain 10 percent by that means. Why would Ngāi Tahu have negotiated that right in the 1996 settlement, if they genuinely believed there was unfinished business? The truth is they knew that fisheries had been tidied up with the 1992 settlement. They took the opportunity of their own settlement to obtain that pre-emptive right, and I have no problem with that—indeed, I congratulate them. But for anybody in this Chamber to argue that the matter was not totally dealt with by Doug Kidd and Doug Graham in 1992 is wrong.

Labour claims that the settlement was rushed. Yes, it was. There was a one-off opportunity associated with Brierley’s selling down Sealord’s. The settlement was then rushed through the House, and I accept that, but the Labour Party signed on to it. It saw it as a good way of settling Māori grievances associated with commercial fishing. Now, 14 years later, Labour members are flocking to the other side of the debate, in an effort to save their own embarrassment around the seabed and foreshore issue.

This is unprincipled legislation in gifting 40 percent of aquaculture space to Māori. I say that that is wrong and that this matter will cause problems with race relations for a long time to come. The Minister in the chair should stand and take the opportunity to present any documentation that shows that there was unfinished business. But I know he will not be able to do it.

The country now has an answer to the question of how long full and final settlement lasts. I used to say that it was probably a generation, but it is actually half a generation—it is now 12 years. That is how long full and final settlement lasts in New Zealand. New Zealanders, as represented by the Crown, can negotiate in good faith, and achieve a full and final settlement. Then, 12 years later, it is renegotiated, and once again the taxpayer of New Zealand forks out.

I can understand why the Minister in the chair, the Hon David Benson-Pope, is not prepared to stand and defend this most important part of the bill. It is indefensible, because, as we have heard from the Hon David Carter, this entire part of the bill is based on a lie—it is. The lie is that somehow when full and final settlement was negotiated in 1992, aquaculture was “unfinished business”. Ministers of the Crown promised to produce proof of that. They promised that to Parliament, but could produce nothing. We just have to read the commentary on the bill to learn that it states: “The basis of the claim to the Tribunal was Māori concern”—members should note this well—“over their ongoing access to coastal space to undertake marine farming …”. Where is the property right concern or question in that statement? Does that mean that any group in New Zealand can come along and say it has a concern about access to Doug Woolerton’s farm or to Dover Samuels’ motel? Would that mean that Parliament would meet under urgency and give them all 20 percent of the area? I do not think so.

That point proves something else about this Government and, sadly, about what is happening to this country. Our country, our legislation, and our policies are becoming riddled with race-based preferences that are available only to people of a certain skin colour and genetic origin. It does not matter how many times Helen Clark stands on a public platform or in this Chamber to pretend and say that a particular measure is based on need. This legislation gives the lie to that claim. There is only one thing that is driving the 20 percent reservation of the area for Māori, and that is race. It is not based on a property right claim or on the Treaty of Waitangi. It is simply based on a racial preference. What is the logic of a 20 percent reservation? With whom was the 20 percent negotiated? David Benson-Pope cannot stand and say that the Government went through a negotiation process for the 20 percent. I say that the figure was plucked out of the air.

What can New Zealanders assume about how long this measure will last as full and final? Will it be 12 years? Will it now be 10 years? It is clear that we have set up an incentive for one racial group in New Zealand just to bitch, whine, and complain to the Government, and for the Government to come along, offer it 20 percent, and ask whether that will keep it quiet. That is what this Government is doing to New Zealand. Is that the way to develop an industry? I do not see Doug Woolerton saying that dairy farmers should hand over 20 percent of their farms because there is concern over access.

I was astonished to learn that New Zealand First was supporting legislation like this bill, which is race based. I can understand the Labour Party doing that, because it speaks with a forked tongue. But I thought that New Zealand First prided itself on there being one law for all New Zealanders and on not supporting race-based preferences. I know that David Benson-Pope is a useless Minister.

💬 Lianne Dalziel: Don’t say that.

Well, when that member was a Minister, she would take a call.

This part could perhaps be best described as the part that points out the two parties: the gullible and the greedy. The gullible party is the Government of the day, the Labour Government, which has quite clearly decided that any old story that any group of Māori may like to bring along to it will be put on the table for consideration. Previous speakers have made it clear that as far as Parliament was concerned, this issue was dealt with in 1992, and was then subsequently handled by way of treaty settlement in 1996 and over a number of years since then, whereby treaty settlors were given the ability to pick up allocation. So the question is this: why are we here today to require that any new area set aside for marine farming be divided up in such a way that up to 40 percent of that new area is given to Māori?

And let us be clear that the area is not given to just any Māori, because this is where the greedy party comes in. The allocation will be given to Te Ohu Kai Moana Trustee. If any Māori in this country believes he or she will get some benefit from that trusteeship at some point down the line, then I say he or she will have a very, very long wait for that. There is little doubt that the recent fisheries settlement bill that was rushed through Parliament and passed by the Labour Government—at the point where it had been bent over backwards by the old guard that runs the Māori Fisheries Commission—left this country in a state whereby Te Ohu Kai Moana Trustee is a group that sits between the beneficiary, the owner of the asset, and the administrators themselves. So to ensure that that old-guard group, known as the Māori Fisheries Commission, continued to have its little sinecure set aside for itself, the trustees have gone to the Government and asked it to give them a big chunk of the aquaculture industry, as well.

We know that the system will be such that those in the group will keep the funds that may flow from these areas in their back pocket to pay their fees, and that the funds will go nowhere near the people who expect to benefit from the asset. Not only is it bad for New Zealand to have such a race-based allocation of asset going on but it is also bad for those individuals who think they will get something out of it. It is quite clear in this legislation that the value of the asset will be determined by the old group of seven—the elite Māori who sit on the board of Te Ohu Kai Moana Trustee—acting as the trustees, and that the company, acting as the trustee, will itself decide on how much of the benefit will be passed down the line.

That leads us to the real point here. We have a bill that is supposed to settle an issue—that is to settle something that Parliament understood was previously settled—but that will create nothing but grievance further down the track. At the time of the passing of the Maori Fisheries Bill, I predicted that before too long those who were supposed to benefit from it would come back to Parliament and say: “Help, look what you’ve done to us. We need to be got out of this.” And here is another lot. This is a bill that will simply see grievance further embedded into Māori culture. This will not be an allocation that lifts people out of the sort of economic deprivation we see in so many parts of the country and provides new opportunities for them.

This reminds me of what happened in the Primary Production Committee, when those members were rushing around trying to find evidence that something had gone on. Somebody had said something. I want to bring people’s attention to the fact that the purpose of Part 5 is to “provide a full and final settlement of Māori claims to commercial aquaculture”. [Interruption] Well, that does not actually matter very much, because I understand that the Government has pre-empted claims. [Interruption] Is that not so? That is what it looks like to me. I did not hear Government members get excited in the select committee.

💬 Hon David Carter: They never did any work.

R DOUG WOOLERTON: Well, I thought this was a Government bill. Somebody must have done some work somewhere. But let us not get carried away. The boys and girls are having so much fun getting excited about nothing.

The fact is that 20 percent of the area has been set down to go to Māori interests. It is just 20 percent of an increased space in the ocean—not costed by anybody; it is just a little extra. It is not as though there is not enough ocean or anything like that, or that it is being robbed off anybody or anything—

💬 Hon Dr Nick Smith: Don’t be naive.

R DOUG WOOLERTON: I am not naive. What is naive here is to say that the 20 percent is coming off the present players, or that it is coming out of somebody’s backyard. This is new space that we are talking about, and there is plenty of ocean. I think that a perfectly sensible thing to do is to allocate a little more space at the beginning of the Act in order to make sure that things are tidied up early in the piece. But our friends in the National Party and in ACT cannot come to grips with something that forestalls a fight. They cannot come to grips with anything that staves off anger, or anything like that. They want to have a fight, and believe they have not won anything or done anything unless there is a fight. We in New Zealand First say that the Government of the day, whose bill this is—it is not our bill—has decided to put that 20 percent in. It is a 20 percent allocation of freshwater space, and we say we agree with that.

Is it not hysterical that here we have an amendment to the Foreshore and Seabed Act only 19 days after it was passed in this Parliament? It is only 13 days since that Act received the royal assent and the Government is putting in a Supplementary Order Paper amending the Foreshore and Seabed Act, using the Aquaculture Reform Bill as its little tool. It is just another example of this Government’s use and abuse of parliamentary procedure, of the democracy we have in this country, to make the changes it wants to make to legislation.

The Foreshore and Seabed Act is a travesty. It is an act of aggression. Thousands of New Zealanders recognised that travesty and fought so hard to prevent the bill from turning into an Act. We all know that the Foreshore and Seabed Act is a moral mistake. It takes from one section of our society the right to go to court to have its property interests investigated and clarified. New Zealanders are horrified at the theft of access to justice by this Government through the Foreshore and Seabed Act. We all know that the Foreshore and Seabed Act is an ethical mistake. A group of citizens went to court and they won their case. The Government lost. The Government’s response to its loss was to abuse its power as a lawmaking institution, claim absolute parliamentary sovereignty, and change the law to suit its failed legal argument.

But here is the first of, no doubt, a long series of examples of the miserable, practical mistakes that the Foreshore and Seabed Act is. The Government’s indecent haste to pass this legislation has meant that it has mistakenly confiscated millions of dollars worth of property from local authorities—property like Britomart, Wellington Airport, the Viaduct Basin, and Victoria Park. That land is now owned by central government because of a stupid mistake made by the Government and New Zealand First.

How terrible for the Hon Dr Michael Cullen! He made a multimillion-dollar mistake. He went to hui across the country and told Māori that they did not like the Foreshore and Seabed Bill because they did not understand it. Here we now have it. We know who did not understand that bill. Michael Cullen did not understand it, and in not understanding it he has made a multimillion-dollar mistake that he is now trying to fix up through a cynical quick-fix solution that will cover his embarrassment about his mistake.

This issue, which is addressed in a Supplementary Order Paper, should have been sorted out at the select committee, but the Government and New Zealand First refused to allow the select committee enough time to deal with the issues in the bill and try to discover these sorts of stupid mistakes. They refused the requests from hundreds of submitters for the opportunity to be heard. Those submitters may well have identified mistakes that may yet be the subject of sneaky little quick fixes like this Supplementary Order Paper on the Aquaculture Reform Bill.

Even the officials who had to work late into the night in order to get the Foreshore and Seabed Bill ready cannot be held responsible for this mistake. The Government’s indecent haste has meant that the select committee did not have enough time even to talk about possible changes to the bill and report back to the community in a way that respected the seriousness of the consequences of the legislation. The Government was in a massive rush to pass the foreshore and seabed legislation before Christmas and, in doing so, it has made a multimillion-dollar mistake.

The Green Party recognises the need to remedy that mistake—land wrongly confiscated from local government. It is not without considerable irony that I note that the Government is going to such extraordinarily sneaky lengths to return this wrongly confiscated land to its rightful owners—the local councils and the people of this country. Of course, the sole purpose of the Foreshore and Seabed Act was to confiscate only Māori land, not land that belonged to local councils.

The Greens recognise that the Supplementary Order Paper is a cynical manoeuvre by the Government to fix this one mistake at this time in this flawed process. Without doubt there will be further stupid mistakes discovered in the Foreshore and Seabed Act that will have to be remedied. I say to the Government that it should fess up that the whole Foreshore and Seabed Act was one huge, dumb, unjust mistake. It should fess up that it should never have happened and that the Act will cause only more problems, be more divisive, endanger the ecological security of our coast, and further alienate mana whenua in their own country. I tell the Government to fess up and fix the problem.

What is so important about this debate on Part 5 is that New Zealanders have learnt that the only two parties in this Parliament that can be relied upon to bring an end to the treaty grievance industry are the National and ACT parties. I find it particularly extraordinary that New Zealand First, which campaigned on ending the grievance industry, would vote for Part 5, which will result in hundreds of millions of dollars of resource being handed over.

R Doug Woolerton: A bit of extra water.

I say to Doug Woolerton that people in Hamilton may not understand what aquaculture means, but that we in Nelson and Marlborough do. This part is as good as writing out a cheque to Māoridom for $200 million or $300 million or more. That the young member Darren Hughes does not give a hoot about handing away public resource solely on the basis of race is one reason why those members opposite will lose their seats at the next general election. It is so interesting to reflect back on the 1992 fisheries settlement.

💬 Jim Peters: Were you there?

I have looked at the Hansard. As my colleague David Carter quite properly asked, when was it ever stated back in 1992 that aquaculture was unfinished business? Who said that? Did Winston Peters ask in 1992 about aquaculture? No, he did not. Did any member of the Labour Party ask in 1992 about aquaculture? Did Rick Barker—who is over-excited, and who knows that he is wrong, that he is further in the treaty grievance industry, and that this is unprincipled legislation based solely on dishing out public resources on the basis of race—or any other Labour member say at the time of the settlement that aquaculture was unfinished business? I have looked through every single page of the Hansard, and not one member of the House said anywhere that there was a further issue with regard to commercial fishing and aquaculture.

💬 Jim Peters: You voted for a 20 percent threshold.

I tell members to hang on for a second. The New Zealand First member Jim Peters campaigned at the last election on ending the grievance industry. The member was going to end it. That has to be the biggest have ever. Let me tell members how it will work. One of my constituents whom I met at the weekend has worked in the aquaculture industry for 30 years. He is a good Kiwi battler. He is one of the pioneers of that industry. He has created an industry that creates hundreds of millions of dollars of wealth for our country. We are saying to that 55-year-old Nelsonian: “Sorry bud, you missed out. Your skin is the wrong colour. Because you are not Māori, you will be treated as a second-class citizen when it comes to allocating aquaculture space.” I say to Mr Benson-Pope that that is wrong.

💬 Hon David Benson-Pope: No.

The Minister says ‘No”. Let us look at what Part 5 states. The Minister in the chair is saying that Māori will get access to that aquaculture space due to their having preferential treatment over anybody else. What is it about Labour members who believe that, somehow, Māori are inferior? They are New Zealanders like everybody else. They have the same right to go to their regional council to apply for aquaculture space, so why, in this part, are we giving them additional rights? Why will they automatically get 20 percent of the space?

R Doug Woolerton: You set a precedent.

I say to Mr Woolerton, the member from Hamilton—who campaigned on ending treaty grievances, and who will allocate another $200 million to the Māori bureaucracy—and to those in New Zealand First that every New Zealander now knows that New Zealand First members cannot be relied upon. There will be no full and final settlements while this sort of policy is adopted.

I rise to speak on the amendment to clause 105B set out on Supplementary Order Paper 322 in the name of the Hon David Benson-Pope, which corrects an anomaly in section 18 of the Foreshore and Seabed Act. As the member before me has mentioned, that legislation was rushed through Parliament several weeks ago. Many of us who opposed that legislation—not so much because of its content but because of the indecent haste with which it was being put through Parliament—warned the Government that there could be unforeseen mistakes in it. In fact, in my minority report on the Foreshore and Seabed Bill I mentioned the fact that Local Government New Zealand might be quite concerned about some of the unforeseen issues that would arise. No one would have thought there would be as large an unforeseen issue as this, which would be the biggest land-grab ever. The problems with the treaty issues and the confiscations in the 1800s pale into insignificance when it comes to central government taking most of downtown Wellington and prime pieces of real estate in my home city of Tauranga. There would be some land affected in Auckland, as well. I raised an issue in my minority report about whether the Government could make compensation for the land it took. Well, Dr Cullen’s huge surplus would disappear overnight if he were to pay compensation for that land-grab off local government.

I have an image in my mind of Winston Peters, towards the end of the debate on that legislation, standing up and saying that New Zealand First had fixed the legislation and had taken care of it all. A number of the New Zealand First members stood up, one after another, and said they had done a great job of fixing the problems for New Zealand. I said to them at the time that if you want to claim credit for having fixed the legislation, you must also take responsibility if you have not.

The CHAIRPERSON (Hon Clem Simich): The member should not bring the Chair into the debate; he should use members’ full names.

I apologise; I will not bring you into it. I said that if the New Zealand First members were going to claim credit for having fixed that legislation, they would also have to take responsibility for any mistakes that appeared. Here one does appear, and it is a huge, huge mistake. Of course it has to be fixed, and of course we cannot blame the officials who worked so hard on that legislation, but it is such an illustration of how we get things wrong when we rush things through under urgency, without having a proper process for submitters to come and share their wisdom with us.

The wonderful thing about the parliamentary process is that when submitters come and share their views, they bring great wisdom to the table. They see things that, perhaps, we do not see here in Wellington when we look at legislation. I am sure that someone from Local Government New Zealand would have seen that glaring error and pointed it out to us, had we had the opportunity over the summer to let people look at a draft of the bill before we then come back to it and pass it early next year. So it is unfortunate that we have made that huge mistake. I believe the people of Tauranga will be very, very concerned about what their local member has done in contributing to that and conspiring with the Government to take away much of The Strand and some other very valuable pieces of real estate in Tauranga.

United Future will be very happy to step up tonight and give our support to the Government, in order for it to be able to make that alteration and correct the error.

Part 5 of the Aquaculture Reform Bill has disgraceful provisions that bluntly appeal to race prejudice and appease threats, as Mr Walton acknowledged. What was it he said—“head off trouble before it arises”? The provisions bluntly admit that they have nothing to do with the treaty. The clauses simply state that they relate to Māori commercial aquaculture claims settlements. There is nothing to do with the treaty in the heading, and next to nothing to do with it in the clauses. Clause 61, “Settlement of claims”, applies to all claims by Māori in respect of commercial aquaculture activities, whether they are founded on rights arising in common law, the Treaty of Waitangi, or otherwise. Well, they are otherwise founded, because there is nothing in the treaty that justifies Māori claiming 20 percent—or any part—of aquaculture. Aquaculture was not even capable of ownership until a few years ago. Aquaculture is simply not capable of ownership until one can delineate and designate the areas that will be subject to it. It was not considered that we farmed the sea in that way. The notion that in some way the promise in the treaty of property rights and equal rights has been, or could have been, breached in relation to aquaculture is simply fanciful.

Having noted the excellent speeches that have covered the general principles, I want to look at some specific provisions. Clause 63A states that the space to be allocated to Māori must be of an economic size. It goes on to state under subclause (2): “However, if it is not possible for a regional council to comply with … [that], the regional council must identify new space that is of an economic size even though the new space is not representative.” That will tie up local authorities, iwi—or the iwi trustee—and other claimants before the courts for years. Councils are directed to find that 20 percent, and to allocate it as representative of all the new space, including a representative portion of amounts that are subject to reservations, and then they are told that the space must be of an economic size. If a space is not of an economic size even though it is representative, then councils must identify a new space that comprises a single area. Can members just imagine lawyers crawling over this legislation? It is all so subjective that anyone who wants to get a negotiating advantage will be able to tie this legislation up in court for as long as he or she wishes. Once again, we will see our aquaculture tied up, not because there is any justified claim but simply because of the delay in the procedure that this bill consciously sets out.

It gets worse than that. When we look at allocations in respect of staged developments and harbours, under clause 63B(1)(b) we see: “… that space must be representative of the new space available at each stage of the staged development or harbour;”. That 20 percent will obviously produce uneconomic areas. Some of the stages will be suitable for only one farm, yet the space has to be given. We then go on to see that by the year 2014 the Government is supposed to have provided a value that is the equivalent of 20 percent of the existing space. The year 2014 is 10 years from now, yet this process is expected to be still going on then. I believe that the National Party and the ACT party should make a pledge right now that the moment they get into power they will cancel the process, and that if there is any space that has not been allocated at that stage, all bets are off. It is a windfall in any event, but there is no part of this racist provision that would survive longer than 60 days after the coming into power of an ACT and National Government.

Certainly, from ACT’s perspective, we would vote to terminate a piece of racist theft like this the moment we had the ability to do so. It is quite possible to do so, because this legislation contemplates that the process will go on for years. Anyone who has been involved in this bill knows, and I am sure that the officials are well aware, that none of the space will be allocated before the courts have crawled over it.

I would like to address directly Rodney Hide’s question to the Committee tonight, which was: how long do members think this settlement will last with this Government? We know that treaty settlements with this Government—full and final settlements—last only a matter of years. My answer to Rodney Hide as to how long this treaty settlement will last is simply to say that if he would take today’s Order Paper and flick through it, he will find that 32 bills are listed under Government Orders of the Day, and after those comes the Ngati Awa Claims Settlement Bill, which has an aquaculture component.

Debate interrupted.

Sitting suspended from 10 p.m. to 9 a.m. (Wednesday)