Aquaculture Reform Bill

Part 6 will, of course, be broken off and form a separate bill, as will the other parts that we have been and will be debating in the Committee stage. It concerns the amendments to the Te Ture Whenua Maori Act, and is all about the Māori Land Court dealing with disputes—in particular, those relating to aquaculture in various regions throughout New Zealand. Members will recall that there was negotiation, there was a deed of settlement, and there was an Act passed for the Māori fisheries settlement in 1992. There was a period of 10 or 12 years when Te Oku Kai Moana, the Treaty of Waitangi Fisheries Commission, had to work with Māori up and down the length and breadth of the country in order to resolve who had a genuine claim to a fisheries allocation in particular regions. That was a very long-winded process. It involved lots of necessary hearings in front of the Māori Land Court, and resulted in a bill being brought into Parliament late last year that we looked at during the first part of this year. Interestingly enough, even the Fisheries and Other Sea-related Legislation Committee, when it got that legislation after 12 years’ work, made some changes in relation to some iwi making claims to a fisheries allocation.

These amendments in the Aquaculture Reform Bill are to go through the same process as that, so that iwi can put their case as to their right to the allocation of space. They will be doing that primarily before the Māori Land Court. That is why we are looking at Part 6, “Amendments to Te Ture Whenua Maori Act 1993”. The difficulty will be that there were 12 years of disputes over the Māori fisheries settlement—and that was when, back in the early 1990s, there had been negotiation, a deed of settlement, and an Act passed that dealt with that allocation. So members can imagine the disputes we will have before the Māori Land Court arising from this legislation, given that there has been no negotiation, no deed of settlement, and no Act specifically dealing with this particular treaty settlement. The Māori Land Court, which is referred to in these short clauses, will be very, very busy indeed.

It was interesting, when doing the Māori fisheries settlement, to talk about coastline disputes. That was just one type of dispute that was possible—a dispute about where the coastline began and ended for a particular whānau, iwi, and hapū, and, if there was disagreement on that, who had to resolve it and how it was done. The coastline agreement had to do with inshore fisheries only, rather than offshore fisheries as well, so it was major in one sense but not wholly significant. The coastline agreements with regard to aquaculture will be absolutely essential when it comes to deciding which hapū and iwi have claim to a particular aquaculture management area. I can say now to the country that there will be huge arguments over that particular issue. Iwi will be fighting iwi for years and years to come. We will hold our heads in our hands and weep. Had the Minister negotiated with Māori, signed a deed of settlement with them, and got buy-in, perhaps all that could have been avoided. So if the Minister in the chair, David Benson-Pope, thinks that this part is some kind of silver bullet that will solve aquaculture disputes in the marine management area over the next decade, he is dreaming. That is why we have to have these amendments to the Te Ture Whenua Maori Act.

It is quite extraordinary that in the Aquaculture Reform Bill—in which we are attempting, anyway, to resolve the issue once and for all—lo and behold, we see Part 6 is totally and specially dedicated towards conflict resolution. One entire part is about conflict resolution, when this is a reform bill in which the whole issue is meant to be sorted in a full, fair, and final way. It is quite extraordinary that the Government itself and the Minister in the chair, David Benson-Pope, who is sitting there and chewing his cud, do not seem to understand that they have just opened up another period for Māori to fight one another, to argue, and to make the lawyers rich. I can see Donna Hall right now, just beaming from ear to ear at the thought of the millions of dollars she will be gleaning from Part 6, because of the total ineptitude of the Government. I can tell the Committee right now that the lawyers will be getting the snapper and the ordinary Māori will be getting the empty net, as always in these sorts of settlements.

This legislation will not achieve anything that is near to the nice, warm, fuzzy belief that the Greens, New Zealand First, United Future, and the Government seem to have about what will occur once it is passed. It is a recipe for the continuance of the grievance industry. It will pit Māori against Māori, iwi against iwi, and even, I guess, relative against relative in the argument as to who is entitled to what. I can only say again that it is extraordinary to see in a bill of this size an entire part—not a clause or a couple of clauses—dedicated towards trying to resolve conflict, or setting in train the principles by which conflict resolution can occur. It is amazing that the Government has predetermined that there will be conflict and, in trying to pre-empt it, has put in a whole new part. I guess I am still thinking to myself that there can be only a clause or two on that, surely. But no, an entire part, consisting of a dozen pages or so, is dedicated towards the resolution of the conflict that must occur as a result of this legislation. I find that to be absolutely amazing. I can only concur with my colleagues from the National Party on that.

Tīpene O’Regan was dead right. The Minister should know that he was dead right. If the Minister was doing his job properly, he would get on the phone to him. When I was last aware, Tīpene O’Regan was still living in Otago, so it would not even cost the Minister a toll call to get on the phone and ask him what actually happened and what his recall of the process was. We would not even need Part 6 if the opinion of one of the most highly regarded members of Māoridom and of the New Zealand community had been sought by the Government. If the Government had consulted Tīpene O’Regan at an early stage, I suspect the whole conflict resolution process would have been unnecessary. We would not be sitting here in urgency, trying yet again to ram another piece of legislation through Parliament that is, in my view, totally unprincipled and not even based on consultation with Māori to determine whether it is necessary.

As we move to Part 6, I want to pick up on the comments made by my Primary Production Committee colleagues Gerry Eckhoff and Phil Heatley. In Part 5 we have created a huge dispute and grievance between Māori New Zealanders and non-Māori New Zealanders. Now we move to Part 6, which is a significant part of the bill. It is totally devoted to trying to find solutions to grievances between Māori. We have talked throughout the debate about Māori getting up to 40 percent of new aquaculture space, but nobody has taken much interest in defining who is Māori and how that space will be actually allocated. I note that no Māori member of the Labour caucus has even bothered to take a call on any part of the legislation, let alone helped the Committee with this very important part.

I confess right at the outset that I do not have a huge appreciation of Māori politics. I would have thought it was incumbent on some of those Māori members to help the Committee through this debate. They should tell us how the various iwi or hapū will be recognised so as to receive their entitlement. My colleague Linda Clark—no, Linda Clark was never a colleague of mine, but I accept that she was a colleague of the other side! My colleague Lynda Scott has just mentioned that eight iwi claim to have an affiliation to the Marlborough Sounds, which is the area that has been at the forefront of leading aquaculture development in this country. I pay tribute to the Marlborough District Council for the job it has done. This legislation will give Māori in the Marlborough Sounds up to 40 percent of new space to be created. We have acknowledged that that will be complex enough to build into this legislation a dispute resolution process for how the aquaculture space will be divvied up within iwi.

There are no boundaries for this. There is no map of the Marlborough Sounds that states that a particular iwi has an affiliation with a particular bay, and that another iwi has an affiliation with another bay. If Māori use their brains—and I am sure they will—they will look at the Marlborough Sounds and ask where the most productive areas are. They will then go into a lengthy process of trying to prove to the Māori Land Court that they have an affiliation to that area—not because it is where they used to fish, but because that is where the most productive space is. The Māori Land Court cannot handle claims at the moment. We will have to resource it.

💬 Dr Lynda Scott: More money.

More money from the taxpayers of New Zealand will resource yet another court to try to sort out claims between various Māori, because the Labour Government is passing legislation that is unprincipled and simply will not work. I want the Minister to rise to his feet and tell us how much additional workload he sees as being put on the Māori Land Court. Let us have a statement from the Minister in charge, the Hon David Benson-Pope, to prove that he has given some thought to that question. I bet it has not even crossed his mind. He will not be the Minister of Fisheries after the reshuffle of the next few days. Helen Clark knows that the industry is totally disappointed in that man. He has been a disaster. He does not even understand the basics of this bill, let alone the complication associated with Part 6.

💬 Darren Hughes: Is this the man who got demoted off the front bench?

I assure members that Darren Hughes, the soon to be former member for Otaki, does not have a clue about this legislation. I know that Nathan Guy, the National Party candidate who is door-knocking in Ōtaki at the moment, knows more about this legislation, because I have spoken to him. He knows more about this than Darren Hughes would.

💬 Darren Hughes: Why was this man dumped from the front bench?

I say to Mr Hughes that at least I got there. That is further than that member will ever get, sitting in the second row before he is dispatched back to get another job. That is what will happen to that member.

I want to debate the issues.

I want to follow on from where my honourable colleague David Carter left off. This debate is not just about the eight iwi at the top of the South Island. We are talking about hapū and whānau, as well. How will it be decided who has access to the 20 percent of aquaculture management areas? It is extremely difficult. I grew up in the Marlborough Sounds at a place called the Portage Resort Hotel. It is a really lovely tourist hotel and was a wonderful place to grow up in. I always remember that on the wall we had this big painting of Māori carting their canoes over from the Kenepuru Sound to the Queen Charlotte Sound. That is why the area is called Portage—Māori used to take their canoes across at that lowest point.

There are many different Māori groups that do not put up a wall, gate, or fence to say that a bit of land is theirs. They live in an area and move to other areas. They were a very mobile society. We all know that Te Rauparaha used to come down and wage war in this area. There would be huge casualties; whole hapū would get wiped out, and then other people would move into that area some time later. The disputes will be very difficult to sort out.

A Māori chap came into my office a few years ago and said—I always remember him saying this—that when there was no land, no fisheries, and no money, people did not care, but “now we do”. He was in dispute with his brother over a patch of resource that he would have liked.

💬 Hon David Carter: Plenty for the Māori Land Court.

That is right. Where do people go? The whole of Part 6 directs people to the Māori Land Court to sort out their disputes. There will be massive disputes. Ian Ewen-Street gave an example before that if Māori are looking at a coastal area or an inland tidal area, and if they happen to be from a hapū or iwi that was based out on the coast, and there is aquaculture in a lagoon, they would want to claim rights to the lagoon. They will miss out. But members can bet their life that they will not want to miss out, so there will be a dispute. Some Māori will say that there were plenty of times when they planted crops and harvested food from that lagoon. What happens if eight different iwi all claim the same space and we cannot sort it out because at different times they did all use that land? Will they get one-eighth each? Is that what will happen?

Nobody knows how this issue of 20 percent of aquaculture management areas will be resolved. That is the whole problem with Part 5 and Part 6. There was no deed of settlement. Māori have not accepted this legislation; it has been foisted on them. Sure they will take the 20 percent—who would not take a free handout from the Government? Everyone will do that, if the Government is silly enough to give it. But there was no deed of settlement. It has not been worked out with Māori. The whole of Part 6 sets up mediation, disputes resolution, the procedures of the court, and how a judge will make determinations.

In those situations, there are costs. This legislation will cost New Zealand more. The 20 percent of aquaculture going to Māori will cost, and then there are the costs under Part 6. We do not even need Part 6. It does not need to be in the bill, because we do not need the deal whereby 20 percent of aquaculture management areas will be handed out to Māori. The Government has done this to try to buy off the anger associated with the seabed and foreshore legislation and make Māori a little happier with it, so that it might get a few votes at the next election and not have the Māori Party clean it out. That will happen.

Māori in this situation have said—and we have heard Māori members say in this Chamber—that they do not accept this. So we will see disputes. Earlier, I read out the deed of settlement from the 1992 fisheries legislation, which clearly stated that it was a full, fair, and final settlement. I think that will go down in New Zealand history. How many full, fair, and final settlements will we see in this country?

I move, That the question be now put.

I want to take up where my colleagues left off in Part 6. Dr Lynda Scott is absolutely right: the deed of settlement was absolutely clear that it was full and final. Now, what are we doing through this bill? We are setting up a whole new raft of situations where there will be dispute between different iwi. They will have to take their matters to the courts—to the Māori Land Court and the Māori Appellate Court. Those will be the courts to adjudicate in the mediation between disputing iwi.

I know of situations where iwi have joined together just to help progress the fisheries settlement. After 12 years of that they will now be able to litigate their part again, and what they can achieve through this process. There will be a lot of disputes that will clog up the Crown process of the court. I guess one saving grace is that applicants to the court for adjudication will pay for that part of the process. I guess that that is the only saving grace, but I am sure it will be funded by the taxpayer somewhere along the way. So that is what this part is about.

If we go to section 26Z inserted by clause 107, “Unsuccessful mediation”, I would like to bring the Minister’s attention to an issue there on which he might like to take a call and give an explanation about what it really means. Subsection (3)(b) states that a judge who refers unresolved issues to the court may be the judge who hears the matter or who provides advice. So I see that rather than have a fresh look at the matter, one has the same judge who then hears the matter in court after being involved in the mediation process.

Perhaps the Minister might like to take a call and give an explanation for that, as he has not taken many calls on this bill, at all. We do have to wonder whether the Minister really understands everything involved in this legislation. I would like him to take a call and give an explanation about why the judge who hears the mediation can also then hear the matter during the court process.

There will be plenty of matters to be heard. Iwi up and down the country will be looking to see what they can get out of the aquaculture system. They will be looking to see what portion they can get out of whatever is on offer from that 20 percent. I know that in my own area there will be conflict between some groups. Ngāti Maru have an interest over on the Auckland side of the Firth of Thames as well as one on the Thames side, and I can well imagine that disputes will arise as a result of their interests conflicting with those of other iwi who perceive that they have an interest over and above that of Ngāti Maru on the Auckland side of the Firth of Thames.

Even on the Coromandel side of the Firth of Thames, there are already competing interests. Māori groups have united for the fisheries settlement, but I believe that that position will change when they perhaps have an opportunity to go for claims for aquaculture. They will be seeking to go to the Māori Land Court, in accordance with Part 6.

There will be huge litigation from this part, and while adjudicators have to have some understanding of tikanga Māori, I do not know how that will help with the competing interest groups who have their own ideas around what is relevant to them in terms of tikanga Māori. So when that type of understanding is being asked for, there will be conflicting interests within that situation as well, and conflicting understandings of what tikanga Māori will mean to different participants.

I see a whole raft of litigation and I see courts being bogged down, so I believe that this part does not serve Māori at all. It does not serve New Zealand well, at all, and perhaps the Minister could take a call as to why matters have not been resolved so that we do not actually need a resolution disputes process. That should not be necessary if the legislative process had been followed correctly; and if legislators had taken heed of the deed of settlement, the document Dr Lynda Scott read from before, it would not be necessary. If the 20 percent had not been allocated as a part of any aquaculture application, the disputes resolution process would not be necessary.

I move, That the question be now put.

Part 6, as has been clearly explained by previous speakers, sets out a large new section for Te Ture Whenua Maori Act, and gives a whole lot of new roles and responsibilities to judges. Essentially, they are the sorts of things that practising lawyers—certainly, lawyers from general practice—would be very familiar with, such as the bitterness that is engendered in disputes over unearned money and over undeserved money. Anyone who has ever practised in a family practice concerning wills and estates knows just what happens when there is a bunch of unearned money at stake. They know how intractable the dispute is, and how little regard people have for assets when they would really rather poke one another in the eye. So it is no surprise that we get a really extensive range of remedies and proposals in this Part 6.

I am interested in the mediation proposal there. First, I do not think it will work, because people are not looking for solutions; they are actually looking to score points off one another. As they know deep down that they did not earn or deserve the money, they are quite willing to see it squandered in dispute. So mediation may be a bright idea, but it is much more likely to be simply the precursor to litigation. But on looking at that issue, I see that a mediator in this case can be appointed not as a person with experience in tikanga, but as one with the skills and experience to undertake mediation on issues arising under Part 5. Well, Part 5 is the part we have just dealt with that sets out the entitlement conditions for the windfall. Part 5, for example, states that by 2014 the Government must have provided equivalence in value to Māori of 20 percent of all the existing aquaculture areas. Now, when one looks at that and thinks of what sort of expertise that mediator will have to have under the proposed new section 26V of Te Ture Whenua Maori Act, one is driven back to wondering just how anyone can have that skill and experience.

Part 5 is so badly drafted that it is actually hard to know what Part 6 will be looking for. Part 5, where it talked about valuation, talked as if valuation was valuation—stupid! Well, I ask: valuation when? When this mediator is going to look at it, will the value be determined as at 2014, will it be determined as at the date that aquaculture areas are created, or will it be determined as at the date that tendering or any other allocation process sets a value? Will it be determined when the aquaculture areas are in full production, or is this an unimproved-value calculation?

💬 Sandra Goudie: It will go for the maximum.

It will go for the maximum—obviously. What it will do is provide an enormous range of issues on which guidance will be needed: first, as to matters of law before a mediation can be properly conducted, and, second, on all the juicy opportunities there are for the beneficiaries of this completely undeserved windfall, to poke one another in the eye. Even then, mediators will have to go back and look at the underlying facts, because no one can tell from this woefully badly drafted and badly conceived piece of law just what kind of valuation is concerned. Why did someone not just look at the Rating Valuations Act? Why did someone not take a slight bit of interest in going behind the slogan and asking what would happen in practice? Just what kind of valuation is expected? Is it on a going concern, bare land, or a development potential? What about the situation where the area has a reserve, or where the underlying allocation is still in dispute? We do not know. But there will be rich pickings in this, and there will be rich pickings because this legislation has no principled foundation.

It is a bad-faith piece of work. It shows bad faith on the part of Māori who have taken advantage of a wimpish Government. I would like to test whether Arnold Schwarzenegger’s term of description for the Democrats would be unparliamentary in New Zealand. He called Kerry and his colleagues “girly men”, and I think that what we have seen here is a bunch of girly men fronting up to some pretty tough negotiators—

I move, That the question be now put.