Ngti Awa Claims Settlement Bill

This is in the nature of a point of order. I raised a point of order when we were last in Committee on this bill, but the Committee rose before it was considered. The matter was quite simple. My colleague Georgina te Heuheu had spoken in Māori, and as we had an interpreter in the House—

The CHAIRPERSON (Ann Hartley): Can I just correct the member. I cannot rule on a previous point of order. I presume that the member is raising a new point of order?

The subject matter of the point of order is still out there, in a sense.

The CHAIRPERSON (Ann Hartley): The member can raise the matter as a point of order.

I raise a point of order, Madam Chairperson. My colleague Georgina te Heuheu made a statement in te reo Māori. We have an interpreter present in the Chamber who should have a record of those proceedings, so I now seek, for the elucidation of non-Māori speaking members of Parliament and members of the public, an interpretation of those statements.

The CHAIRPERSON (Ann Hartley): The interpreter can interpret only what is before the Committee right now. If the member wants to repeat the point of order, the interpreter can interpret it.

It was in fact my colleague the Hon Georgina te Heuheu who made the point of order.

The CHAIRPERSON (Ann Hartley): Is the member calling a point of order?

I raise a point of order, Madam Chairperson. Kāore ngā kupu, “te rūnanga”, i roto i tēnei pire mō ngā kupu o te Minita.

[An interpretation in English was given to the House.]

[In respect of the Minister’s statement, the words “te rūnanga” are not in this bill.]

The CHAIRPERSON (Ann Hartley): That is not a point of order for the Chairperson to rule on; it is really a matter for debate.

💬 Dr WAYNE MAPP: The point of raising that whole issue, of course, was because of the extraordinary situation we are confronted with here. In the proceedings when we were last on the bill, the Government put forward an extensive Supplementary Order Paper that did not give a direct translation. That was the reason for the extensive points of order raised when the bill was last debated. Indeed, that is the reason for my request at this point, and the interpretation bears out the point exactly. The word “runanga” in the text on the Supplementary Order Paper was not properly translated.

What has the Government done about it? It has taken the extraordinary step of completely replacing Supplementary Order Paper No. 327 with a new Supplementary Order Paper, dated today—1 March, 2005—stating that the amendments are totally and correctly translated. I refer directly to the explanatory note on page 27 of the Supplementary Order Paper, under the heading “Amendments to Preamble”, which states: “These amendments ensure that the content of the Māori and English texts of the Preamble, and the number of recitals in both versions are the same.” The content is the same. That, of course, is what we would expect. We expect that such matters, when they are presented to Parliament, have equal validity and equal meaning.

The Government has been embarrassed by the proceedings of 1 week ago, to the extent that it now has had to make a correction—a correction, I suggest, that is not for just one occasion but that for hereon in, sets a general precedent for ongoing New Zealand Parliaments, under whatever Government, whereby legislation in two languages—and let us be clear: we are talking about legislation not about speeches given in the House, and so forth—from which legal rights and obligations flow should be directly translated. It raises the whole issue that members on this side of the Chamber have been raising for some considerable time: the use of the word “principles” of the Treaty of Waitangi as if those principles were some kind of substitute for the treaty itself.

Apparently, the Deputy Auditor-General is supposed to have knowledge of those principles. All I can say is that if some of the nation’s finest accountants can explain to the rest of us what the principles mean, then jolly good on them, because, frankly, some of the finest legal minds in the country have not been able to get to grips with what the term means. The reason is that it is a totally imprecise statement. Why would one move from the text of the treaty, which is quite simple and straightforward, although admittedly in two languages, and which is capable of a meaning under law and in the courts—and I see Mr Parker acknowledges that point—to another set of statements, apparently derived from the text but not actually the text, on which the courts then develop a whole new theory of law, and which have benighted this country for some considerable time? I use that by way of analogy on the importance of the English and te reo texts being the same, because legal rights and obligations flow from them.

I ask this of the Minister with his new responsibilities: does this now set a general precedent that hereafter whenever legislation is presented to the House in two languages there will be a total commitment to ensuring the two texts mean precisely the same thing, as much as languages actually can reach that situation? Do we have that assurance now, or do we blunder on in the dark, as was the proposal last week when the Government said: “Here’s sort of something that’s more or less the same as the other and the courts will just have to sort out the differences themselves.”? Given that the Government has tabled a Supplementary Order Paper today purporting that the content of the texts are the same, the Minister owes the Committee an explanation as to why the Government is doing this. What does it intend by it? Does it set a general precedent, and is it intended to be a direction to the courts?

I think it is fair to say that the last time the Committee sat on this matter some concern was raised by members about the proposed Māori wording in the preamble to the bill. Following consultation, the introduction of this new Supplementary Order Paper 329 is about trying to resolve the concerns that were raised seriously—at least, by some members.

The new Supplementary Order Paper does two things. Firstly, it inserts wording in Māori that is an exact, literal translation—and the member used quite careful and appropriate words—to the best of anyone’s ability ever to quite do that with two languages. We have to accept the nuances sometimes, and I know that the member understands that, but to the best of expert ability, in terms of both drafting and translation, that has been done.

The second thing that members raised some concern about—I think Mr Brownlee may have been the first—is, I think, on reflection, a legitimate concern, and that was to align the numbering systems. Although, grammatically, content in two paragraphs in one language may have been more logically contained in one paragraph in the other language, it did not help members’ understanding. I know that the member of New Zealand First found it unhelpful. Also, I think his points to officials, when he had a briefing, which were reported back to me, were quite correct. For members of Parliament and members of the public who genuinely want to use these opportunities to assist their understanding of both languages in reaching translation, we should, if we can, do things that assist that process.

I thank members and acknowledge the useful contributions they have made. As for the suggestion the member made that, as far as we can, this should be the way we proceed, it would be presumptuous of me to leap to that on behalf of all future legislation, but, certainly, it is something I will take careful consideration of in my new role and responsibility, as we go forward.

I wish to make a contribution on this preamble part of the Ngāti Awa Claims Settlement Bill, and simply to acknowledge that the Government has finally done the right thing and put together a Supplementary Order Paper to clear up some of the translation confusion that may well have existed had that course of action not been taken. It is disingenuous for the Minister in charge of Treaty of Waitangi Negotiations to hint that somehow this course of action has resulted from, I suppose one would say, diversionary or slowing tactics from the Opposition. That is far from the truth.

What it does point to, though, is our concern about the way in which the Office of Treaty Settlements goes about its business. Although we have been assured today that these sorts of translations will be dealt with in this new manner from this day on, to my mind this instance causes me to ask how many other things in this settlement bill are thereabouts—that is, not quite right, not quite accepted, but thereabouts, leaving open the opportunity for future generations of those upon whom this settlement is being settled to say it was an imposition by Parliament, and not an agreed position between the iwi and the Crown.

I state again—and I will state it over and over again—that I think it is inappropriate for the Office of Treaty Settlements to be recommending to Ministers that settlements proceed when so few of the members of the eligible iwi have committed to that settlement being full and final by casting a vote in favour of it. It does not matter what light one wants to put on it, or what sort of twist or turn; the reality is that when only about 30 percent of an iwi signs up to a settlement, far too many are left out there with the opportunity to say: “We didn’t accept that.” It may not be this generation, it may not even be the next or the one after that, but when we are dealing with a people who pride themselves on their oral history, and on the strength of being able to keep those things that are taonga to them through that oral history, I think we need to do a lot better than to go for settlements, telling the rest of the population that they are full and final, while so many of those who are the “settlors”, or “settlees”, or whatever the correct legal term is, have not bought into the settlement itself.

I am very pleased that in the preamble we have been able to set a new precedent for how we go about these bills, and how the aspects of the bill that are described in the preamble should be kept very, very similar, if not completely the same, in both texts. I accept what the Minister said—there will be nuance differences—but I believe that in this case the Office of Treaty Settlements has made every effort to ensure that the recitals as they are written in one language translate relatively easily into the recitals as they are written in the other language, as best as that can be done, as my colleague Dr Mapp said.

So the National Party begins the Committee stage with some pride that it was National that pointed out the, I suppose one could say, inconsistency in the preamble. I cannot understand why the Minister responsible did not simply insist on this sort of exercise right from the outset.

We will be looking at the rest of the bill now, to ensure that all that is claimed in the bill is in line with what those who are having this claim—and I will say it—imposed upon them by the Labour Government are expecting, because the full and final aspect of any settlement is its most important aspect. New Zealanders have a right to expect that when the Office of Treaty Settlements recommends to a Minister that a bill proceed because it is at a point where the parties to the negotiations, one of which is the Crown—which, by the way, is all New Zealanders, and includes every Māori in this country, as well—have reached agreement between themselves, then we should believe that it will be sustained.

It is interesting that in this debate on the preamble to the Ngāti Awa Claims Settlement Bill we seem to have moved already into congratulating ourselves on having got what is described as an exact translation of two very long passages—a very long passage in Māori and a very long passage in English—both of which, in essence, re-record history. I say that it is interesting because I do not think this House has resolved anything for the future. When we realised that there might have been discrepancies we were unable to resolve it on the spot. We were told that it was a debating matter. Although this House keeps an interpreter full-time in the Chamber when we are debating, the Chair did not choose to refer that uncertainty to the interpreter. Instead, the Chair invited a Crown Minister to translate.

Hon Georgina te Heuheu: A former Minister.

I am sorry, it was a former Minister. I thank the Hon Georgina te Heuheu.

The position we ended up with was that we were told, quite seriously, by the Chair that if there were differences in two texts and no statement as to which would take priority, that was simply a debating matter, even though most of the people in this Chamber, including Māori members, were unable to tell us what the significance of that difference was. Although that may not matter in this bill if all we are doing is rewriting history for the purposes of giving colour to an apology, it may matter very much if the practice of having two texts is extended. Inevitably there is ground for misery in dispute resolution when there are two texts.

We have in the House, time after time, debate over things that must have seemed as simple as taonga to those who wrote them. I have been told, for example, that taonga does not include tūpara, or shotguns. There can hardly have been anything more of a treasure in 1840 than the guns that people had sacrificed so much to buy. We have been told that language is a taonga, yet in context one cannot see how one could give exclusive use and possession of a language, which is the context it appears in. So I believe that it is important for us to mark that it is not some kind of victory by the Opposition to get the texts regularised, but instead a worry for the future. The Minister has come back and given us texts that the Minister tells us are now the same. But that is still not reassurance.

I believe that this bill should have a provision that states what happens in the event a disagreement emerges over interpretation. The bill should not simply put two language texts without stating which one takes priority. It does not matter for these purposes whether it is an English text or a Māori text that takes priority, but one language is likely to evolve faster than the other. One language is likely to have more attention focused on interpretation than the other. For those who come to this in 20 or 30 years’ time, it would be sensible for the House to have a clause in here that states that one language is merely a convenience for those who do not read the other, and to say which text is the authoritative text.

I think it is poor drafting and poor practice by the Crown to come before this House and say: “Please pass something that we know from history, and from our own experience only a week or so ago, will be uncertain to those who read it in the distant future.” Languages do evolve. Understandings evolve. It may seem to the Government that sticking in long passages of Māori is a cute thing to do for the politics of it at the moment—or that sticking in long passages of English so that the English readers do not complain that there are long passages of Māori, is a cute thing to do—but the Government should not be doing that without telling us which will be authoritative, in view of the fact that it is not possible for exact translation. That is not achievable and we should know for the future which text would resolve dispute.

I rise for the New Zealand First Party and again reiterate the point that we are the only non-aligned political party in this House. In speaking to the preamble, I acknowledge the Minister in the chair, the Hon Mark Burton, for the course that has been taken in presenting this Supplementary Order Paper, given that the Government has tried to work the bill through this part of its process for a number of days now but it has been held up because of the concerns of members—and I think they are correct concerns—in terms of how the original bill was presented to the House. I want to say also that both the Māori and English versions of the preamble—rightly or wrongly—refer to the principles of the Treaty of Waitangi.

During the course of the earlier debate, ACT member Stephen Franks suggested that New Zealand First had come to some arrangement with the Government, given that our Supplementary Order Paper to be dealt with later on did not make reference to the deletion of references to the principles of the Treaty of Waitangi included in the preamble. I point out to that member for his information, and for the information of this Committee, that I am advised, quite correctly, that those clauses refer to the deed of settlement already signed between the Crown and Ngāti Awa, which is a document separate from this bill. We were led to believe that either the Speaker or the Chairperson would rule the Supplementary Order Paper out of order in that regard.

One of the earlier speakers made reference to his concern about the level of threshold for approval that has been accepted by the Office of Treaty Settlements with regard to this particular claim. I think that is a valid point, because I believe that the threshold for approval ought to be higher than that accepted by the Office of Treaty Settlements for this bill, and that there ought to be some consistency with other legislation. In that regard, I refer to Te Ture Whenua Maori Act, which requires, when an alienation is to proceed regarding Māori land, that 75 percent of listed owners have to give their approval. I believe that that is the type of consistency that the Office of Treaty Settlements, on behalf of the Crown, ought to consider when dealing with other claims.

During my time on my feet, I signal to this Committee that New Zealand First will certainly be pushing for the omission or deletion of references to the principles of the Treaty of Waitangi. Although they are not as liberally dispersed within this bill as they are in other legislation, we will certainly be debating that point.

United Future has not really spoken at all on this issue of the preamble and the problems with interpretation that have arisen, but I believe that this debate has been an important one and also an inevitable one. Although many concerns have been raised in the Chamber about the correct translation of English words into Māori, this debate is timely—as there is a rise in interest in te reo in New Zealand, as there is a greater use of te reo, and as it is accepted more broadly, we will face more and more of these problems. The difficulty that we have is always a difficulty in terms of how we translate one culture’s language and meaning into another culture’s language and meaning.

I welcome the rise in the acceptance and awareness of te reo. This morning I was at the Hui Tamata pōwhiri, and I found that speakers spoke on the marae without there being a translation into English. I wished I knew more te reo so that I could have understood what they were saying, particularly when they were obviously cracking jokes amongst each other, the meaning of which I was unaware of. I was grateful for John Tamihere being there and at least telling me a little bit about what was going on.

The increased confidence of Māori in terms of their own language and tikanga is important, and we ought to celebrate that. But we as a Parliament should know about the problems of not getting language translation correct. After all, we still have problems with our treaty dating back to 1840, in trying to work out the difference between tino rangatiratanga and kāwanatanga, and the conflicts there. We all know the problems we are having in terms of the conflict with and misunderstanding about that terminology. The question is—and it is a very real question that we need to address in Parliament—how do we actually resolve that? It is not easy to do it by a literal language approach, because then there are problems in terms of the language and what it can convey. I know, for example, that in Greek there are three words for love: agape, philia, and eros. If one chooses the wrong one, one term means something very, very different from the other. I understand that Eskimos have a multitude of terms for snow, because of their cultural context, whereas we have only one.

So the ability to transfer ideas from one language to another is not easy. Nor can we look at a broad translation, because that tends to be very subjective, and it changes over time as my friend Mr Franks has said. Even in English we find difficulty with courts interpreting Acts, and the language in Acts written in English can be interpreted differently from what Parliament intended the legislation to do. So even in English we have a problem with translating concepts specifically.

Mr Franks suggested that we should indicate, in these instances, which of the languages should predominate in the event of conflict. I have been thinking about that while I have been sitting here, and although for a Māori bill one could lean towards the idea that Māori should be the language that predominates, it seems to me that a clause like that of Mr Franks would be a good idea. But, given that most members of Parliament passing this legislation are English, we are forced at this stage to say, effectively, that English should predominate. It would be nice if that were not the case, but because we are the members of Parliament who have to make a decision about this bill and its contents—whether we as a Parliament will endorse those contents—the fact that the bill is in a language we understand, with concepts we understand, is a critical part of that process.

I do not think that we will resolve the issues until we, as a nation, are bilingual. I look forward to the day, which I guess is a generation or two hence, when we will not have these problems because we will all understand te reo as much as we understand English—to the point that when we read the te reo version we will know what it is saying and we will understand it, not only in terms of the words it has but in terms of the concepts it is trying to convey. In that situation, maybe we would not need an English version of the bill, at all; we would have enough knowledge in this Parliament, by a majority, simply to be able to understand the Māori version, and to be able to interpret it in accordance with Māori tikanga rather than English concepts. So I do not think we have come to the conclusion of this debate in terms of the general view; I think it is something we will have to address for a long time hence.

Two matters arise from the previous debate on this bill, which colleagues of mine have already raised. But I want to raise a couple of things in addition to their points, particularly because members on the other side of the Chamber were very scathing about the Opposition, and they tried to imply we were deliberately holding up the discussion.

I went to see Hirini Mead of Ngāti Awa a day later, because he had had little idea of what had been going on in the Chamber the night before. The first thing is that he had not seen or understood the impact of the issue I had raised in my point of order, which related to the absence of the words “Te Rūnanga” in the Māori version of the Supplementary Order Paper the Minister had introduced about 10 days ago when we last debated this legislation. Hirini Mead, of course, was in complete agreement with me, in the sense that there is a vast difference between the use of “Ngāti Awa” as an iwi and “Te Rūnanga o Ngāti Awa” as a body created by statute. The worry about that from the point of view of the Opposition is that although settlements should be distinctive to the particular tribe settling its claim, the reality is—as we know, and as my colleague Wayne Mapp said—that there will be some things that possibly will flow into subsequent settlements, and that legal rights flow from those things in legislation.

So the issue of being very, very careful about what we are doing in these pieces of legislation becomes even more paramount. This was highlighted by the fact that the Speaker chose to allow John Tamihere to provide a translation of the piece that was in dispute that night—the piece that my colleague Gerry Brownlee had asked be corrected. Of course, John Tamihere did what all members were capable of doing, which was to read the English translation from the preamble in the bill. Well, as I said, that was not the point because, as he found out—if he did not already know—one was not a correct version of the other, or it was not a literal translation of the other. So he merrily translated something that, in my view, was patently wrong, which was that the Māori text referred to “Ngāti Awa” only, and the English text referred to“Te Runanga o Ngati Awa”.

💬 Pita Paraone: Why did he do that?

Who knows? Perhaps he wanted to show us his command of the Māori language. Well, that is fine, but members could have read that for themselves, quite happily. Indeed, they had read it, which is why the Opposition raised the issue. We wanted a proper translation of what the preamble was attempting to say. The Minister, of course, comes from my area at home. He may or may not be an honorary Ngāti Tūwharetoa—we will see whether he earns his stripes! But he knows very, very well that there is a vast difference between talking about Ngāti Tūwharetoa—the iwi—and the Ngāti Tūwharetoa Māori Trust Board. One is traditional and customary; the other is created by statute.

I explained that to Professor Mead the next day. He said it was something they had failed to pick up on, and that is fine. I feel for the Ngāti Awa people. They have been negotiating their settlement and waiting for this to come into legislation for 14 years or more now, so after such a long time it is understandable that something could be missed. But it is important, because we do not want things that are new concepts—particularly incorrect translations—legislated for in this settlement to be somehow used in subsequent settlements, or to in some way pre-empt the rangatiratanga of tribes still to follow and to negotiate their settlements.

There is also something that arises from the Tūwharetoa ki Kawerau bill that I think illustrates this point well, and I will be raising it with the Minister at some other stage.

The question was put that the amendments set out on Supplementary Order Paper 329 in the name of the Hon Mark Burton to the preamble be agreed to.