Ngti Awa Claims Settlement Bill

I want to make a couple of comments at this point in the debate, as we discuss the title and the commencement of this bill. These days, title debates—particularly when coupled with debate on the commencement of the bill, as this is—allow us to make comments in a much more general way than might have been the case in the old days when there was a strict title debate. Everyone knows that this is the new convention put in place by the outgoing Speaker, the Rt Hon Jonathan Hunt.

The first point I will make is that these bills should not create grievance. In settling a grievance, nothing much is achieved if there are grounds for further grievance. I was disappointed that the Minister did not take a call to deal with the issue spoken of earlier by Mr Pita Paraone. Mr Paraone told the Committee that the bill, in part, will prescribe not only who is Māori, but who is a person of Ngāti Awa descent for claims purposes where there has been a legal adoption in the family.

We had quite a discussion at the select committee about the issue of whāngai, and how those people fit in. The response from the Office of Treaty Settlements was somewhat inadequate in suggesting that this had to be in the legislation because of New Zealand’s human rights legislation and adoption laws. I would have thought that if we are settling a grievance that arises essentially from quite a long time ago, the way in which this legislation is applied would perhaps lead to further grievance by Ngāti Awa in the future. I am persuaded of this by considering that if one of my grandparents had been in this situation, then the consequence—because of the size of our family—would be that in just two generations well over 130 people who had no blood connection to Ngāti Awa would be able to say that they were Ngāti Awa and claim any benefit that may arise because of that. I just do not see how that is fair.

I think the response to us from the Office of Treaty Settlements also highlights the fact that the office seems to want to ride roughshod over the whole political process that is associated with these bills.

The fact is that if we are to have enduring settlements, there should be a high level of buy-in to them from both sides of the House. The Crown’s expression is done in this House. It should give the Office of Treaty Settlements no comfort that tonight so many parties are not supporting the passage of this bill. It may not be the first time that there has been a big break in Parliament around a treaty settlement bill, but I think this is the most significant block, so far, to walk away from the concept of Parliament more or less unanimously choosing to support settlement bills. Perhaps the behaviour of the Office of Treaty Settlements hints at the way in which the public service has allowed itself to become increasingly politicised in recent years.

I do not think the amount that is being settled upon Ngāti Awa here is a big issue. We should see it in light of the fact that the entire settlement is worth about one-eighth of what the current Government has squandered annually for the last few years on Te Wānanga o Aotearoa, which has been in the news so much of late. But it is important—because it is a settlement, because it is supposed to be full and final, and because it is this House legislating away rights that some New Zealanders have—that a large number of members of Parliament accept that, and that they can be confident that those who are recipients of the settlement are equally happy.

As we come to the debate on the title, I say that it was difficult for New Zealand First members, having read through this bill, to take the stance we have taken tonight. It was difficult in the light of any understanding of recent history, and of the bill’s long passage with regard to Ngāti Awa and the redress being sought in it. In particular, the difficulty of bringing it to its final summation has long been acknowledged in the course of the first and second readings. For us, the core of the debate has been the definition of hapū, and the principles of the Treaty of Waitangi in particular. We can compare section 8 of the Resource Management Act to clause 10, “Text of apology in English”—the apology is also in Māori—which states in subclause 3: “The Crown profoundly regrets and apologises unreservedly for the breaches of the Treaty of Waitangi … and its principles acknowledged above.”, and then, at the end of the apology, subclause 9 states: “Accordingly, with this apology, the Crown seeks to atone for these wrongs and begin the process of healing and looks forward to building a relationship of mutual trust and co-operation with Ngāti Awa.”

Then we see that the schedules contain particular regard to the Whakatāne, Rangitaiki, and Tarawera rivers. The historical record of Ngāti Awa being made clear, the Office of Treaty Settlements and the present Government has seen fit to give statutory acknowledgments to Ngāti Awa of those rivers. Each of those acknowledgments is defined. Yet here is the rub. When one comes to the end of the schedules, one finds that there are limitations upon these acknowledgments. So what does this mean? Does it mean that the principles of the Treaty of Waitangi, which are not explained or expressed, will be looked at by people who look at this bill in its current form, or who will look at it when it has been passed by the House and has been put into practice?

There is the inherent contradiction here that, without the principles of the Treaty of Waitangi being explained, Ngāti Awa will have a very uncertain course with regard to their supposed understanding of the rivers and the resources that they believe—and could believe because of the text—are theirs to enjoy, but in actual fact, in practice under the Resource Management Act, are not so. That shows the inherent conflict that the Treaty of Waitangi has for the Government because its “principles” have not been defined. It again leaves New Zealand First reluctantly in the position of not supporting this bill, because of the lack of clarity in Parts 1 and 2, and because of the ambiguities that the Government of the day has not seen fit to resolve. We hope that Ngāti Awa will be able to make progress, and if those three rivers were to be not set down as a precedent, giving a forecast for others, such as the Waikato or the Whanganui rivers, our party would support that.

Again, in conclusion, New Zealand First will not be supporting the passage of the bill. We believe that the text lacks explanation and clarity, and that, particularly in regard to the issues that have already been gone through concerning hapū, the legislation is not a proper and due apology by the Crown. It lacks real substance and it certainly lacks impact with regard to Ngāti Awa being able to exercise the sovereignty that three of the schedules we have just passed would seem to give, with regard to the Whakatāne, Rangitaiki, and Tarawera rivers. That is the nub of the issue: if Ngāti Awa are not able to exercise sovereignty, then what have they got? I leave members with that unanswered question.

I think that although the term “settlement” is used in the title of this bill, as the deputy leader of the National Party has already said, a settlement is unlikely. As we have gone through the Committee stage we have seen this bill to be a reflection of scruffy, casual practice by the Government—induced, I think, by years of an assumption by the two big parties that no one would seriously question them. We saw that in the report of the Māori Affairs Committee when it came back to the House. The committee stated: “we have been mindful of … the rules relating to legislation to confirm agreements such as deeds of settlement. These mean that we cannot substantively amend this bill in any way that is not acceptable to the parties to the deed being implemented.” What are those rules? There may have been some conventions. There may have been practices that the two old parties have adopted. But when we went through this bill we found there was not only a need but also a desperate willingness on the part of the Government to do a bit of amending.

The Government had to amend the preambles, because the Committee was misled when the bill first came to it about the lack of difference between the Māori text and the English text. Then we had considerable discussion about just what that may mean as a principle for this Parliament. If we are to stick parallel texts in legislation because it is thought to look fashionably sensitive to do so, what do we do in order to make sure that they do mean exactly the same thing? The Committee did not use its own official interpreter. Instead we wasted hours in debate because the Government chose one of its own Māori members—a former Minister—to do the interpreting, and then we found that he did not interpret accurately. Today we have had a debate about the absence of any statement as to which text is authoritative.

We know that languages evolve and meanings drift, and it is very hard indeed for a future generation, even a few years hence, to understand the motivation when deliberately obscure words have been used—and this legislation is full of them. This bill is full of casual, deliberately obfuscatory words in English, let alone possibly in the Māori text as well, which I do not understand. We see a whole swathe of references to acknowledgements, to protocols, to deeds of recognition, and to text that people are directed to have regard to, or at a higher level to have particular regard to. But there is no indication of what that means.

The Environment Court, under this legislation, is told to have regard to acknowledgements of Māori associations, Māori beliefs, Māori spiritual understandings, and historic myths, with no indication of what that regard is, other than a statement that it does not have legal effect. What is a court supposed to do when it is having regard to such matters but is not giving effect to them? Should it piously run its eyes over a matter and ignore it, or do what the courts have done: try to go through and make sense of instructions within a system that has struggled for centuries to ensure that the law is secular, rational, tolerant, and courteous, but is not beholden to any particular culture or any particular religion? We have the courts being directed to have regard to certain matters, and then being directed not to give any legal effect to them. What does that mean? The Government has deliberately obscured that.

The Government should have told Ngāti Awa that those things are off the table. They might have been possible 15 years ago, when Sir Douglas Graham and others of his kind were desperately looking for something to replace the faith that they grew up in. But they do not work now. We have heard the National Party and New Zealand First say that they will no longer subscribe to the beliefs that they have appeared to subscribe to, and at least were voting for only 5 months ago. They have said they will no longer support references to the so-called principles of the treaty. They will no longer, in the case of the National Party, go along with the mythical partnership, or at least with having it referred to in law. It may have been an extremely powerful analogy, it may have been an excellent metaphor, and it may have been a worthy statement of morality, but it is no longer to be in the law. We will see more of that.

National supports this bill. I know that other parties in this Committee do not support the bill, and I guess I refer in particular to New Zealand First in relation to its explanation for not supporting the bill. I ask New Zealand First members this question: would they take the same approach if they knew that National were not supporting the bill? Would they be actually willing to say to Ngāti Awa, who have been in negotiation for many, many years, as National well knows: “No; go back to the beginning; spend another 10, maybe 15, years to arrive at a settlement.”?—notwithstanding the imperfections in the bill, and I acknowledge those, as indeed do my colleagues—because that is the choice we are really confronted with.

I just wonder whether New Zealand First is taking the luxury, so to speak, of voting against the bill because it knows that in reality the bill will be passed. It is one of those cases where one’s vote does not actually count, and therefore one takes a position for other reasons, knowing perhaps that in private conversations with Ngāti Awa, which I am sure various members of that party have had, one is saying: “Oh well, it is going to be passed anyway”.

We in National say that we support the bill because we support the process of completing treaty settlements. We want those settlements to be created—finished, in fact—by 2010. I appreciate that that is an ambitious goal. But if one intends to achieve that goal, one actually has to vote for the settlements as and when they are.

Certainly, we have voted for the amendments by New Zealand First in relation to the principles of the treaty. So when we vote, we are saying two things to Māori. We actually want to help Māori move forward—to move, as that well known saying expresses it, “from grievance mode to development mode.”

It is appropriate tonight to make reference to the Hui Taumata, which I guess is a review of how Māori have progressed in the last 20 years since the first Hui Taumata in 1984. In fact, one of the things one hears about in the current debate is a new degree of innovation. For instance, it is the first time I can recall in my lifetime that Māori themselves have questioned the relevancy of the Māori Land Court—whether it really serves Māori interests well in looking forward to the future.

That raises the question as to whether it is actually appropriate or sensible for Māori to hold on to every single scrap of land, valuable or not, or whether the process of development requires a more nuanced approach. I appreciate that Māori would say, and I am sure that Ngāti Awa would say: “But the land is our taonga. It is our foundation. It is our tūrangawaewae.”

Of course, that is true of some parts, but it is not necessarily true of every commercial property, for instance, many of which are referred to in this bill. So I would like to think that from the Hui Taumata the Government takes on board the need to reform, at a fundamental level, the structures and principles of Te Ture Whenua Maori Act, which was actually developed at another time that did not necessarily reflect the needs of the 21st century.

The second reason we support the settlements is around building the unity of our country. We know that our country has spent literally a quarter of a century in this area dealing with historic grievances, and I may certainly have mentioned some concerns about the historical record in relation to this settlement. But on a broader level I am aware that this whole settlement process is about coming to terms with, and addressing, our past as a nation. We actually have to get through that; we cannot just get mired in it or forever immersed in it.

So this is about building the unity of our country, which can only be achieved if we complete the settlement process, because in many respects that process is actually knitting together old wounds and fissures. That is another reason why I say to New Zealand First and, indeed, to the ACT party, which rarely votes for settlements, that if we want to heal the past we actually have to facilitate that healing. That means voting for settlements. That is what it means, irrespective of the various concerns we may have about particular issues.

I want to close on this point. Much of the debate tonight has been about the inclusion of the principles of the treaty. National has made it very clear that we wish to move past that debate, and we say that we should not be referring to the principles of the treaty any more in our legislation. That has led us into error. In particular, it has led the Labour Government into error by its obsessive references to consultation and partnership throughout its legislation of a general nature.

That situation can be solved only if we go back to first principles and look at the compact that was actually entered into in 1840. As I have said before, it is quite simple: firstly, the surrender of sovereignty or kāwanatanga, depending on which text one takes, that in essence are the same thing; secondly, the protection of property or taonga, which again are essentially the same idea; and thirdly, the inclusion of citizenship for all New Zealanders, irrespective of ethnicity.

Those are the foundations of our country; those foundations found our modern democratic State; and the treaty has to fit within that concept. So we should not be making specious references to dividing our democracy on the basis of ethnicity by the spurious use of the word “partnership”. That would end up harming our democracy.

In this speech I am giving a sense of where National will go. Firstly, we wish to conclude the settlement process, because it is designed to help Māori move forward. Secondly, we want to build the unity of our nation by looking at the basic principles of our democracy, which are about the equality of all our citizens. On that basis, we can build a united future together.

I congratulate the previous speaker on his visionary last statement. As we finish up the Committee stage on this bill, and as I stand on behalf of United Future, I want to cut past all the technical issues that we have dealt with this evening and to look at some of the very basic questions that have been very simply and succinctly outlined in the summary paper.

Listeners, people interested in this bill, and the general public want to ask a few basic questions about what this settlement is costing us. The answer is $42.39 million, plus some cultural sites that are being returned, and a few gifts that are being made. Is any private land being transferred? No. Are public rights in any way affected by the Ngāti Awa settlement? No, apart from some camping licences given for a set number of days a year, and that does not deny public access to those waterways. Are any national parks affected? No. Does the settlement create any special rights for Ngāti Awa? Apart from a new legal mechanism called the Awanuiārangi II title, no, the situation is pretty much the same as it was before. Does Ngāti Awa have the right to come back to Parliament to make further claims about the behaviour of the Crown in the 19th and 20th centuries? No. Who benefits from all of this? All members of Ngāti Awa benefit, wherever they may now live.

The bill is pretty simple, and as we complete this Committee stage it is important to see that it has been worked through sensibly, and cooperatively. There are those who would have us fear future repercussions from this bill, and I think they are being mischievous. United Future would like to commend Ngāti Awa, those from the Crown’s working committee, and the Māori Affairs Committee for the work that they have done.

I want to respond to one or two things that have been said by recent or previous speakers, and to reassure this House, and those members who think that we are just exercising the luxury of opposing this bill because we know that it will go through Parliament, that that is not our reason for opposing it. From the outset our concern has been about two issues regarding this bill. If those two issues were taken from the bill, they would not affect the settlement in any way. One issue is the reference to the principles of the Treaty of Waitangi. Why is it included if there is no clear definition of those principles? We suggest to this Committee that the exclusion of that reference would not prevent this settlement from enduring, which is what it is all about.

More important, I take issue over what we in New Zealand First, and in particular, the Māori members, are concerned about in regard to the establishment, or recognition, of two new hapū based, clearly, on a geographic location of people instead of on the traditional concept of hapū recognition within Māoridom. This bill will open the situation up for other iwi who want to establish themselves in urban centres, particularly in Tāmaki-makau-rau and Poneke, to be able to do something. If we pass this bill as it is, in no way will the Crown be able to deny them that opportunity and that right. It does not surprise me that the member from the National Party should question the New Zealand First approach, given that the National Party has ignored the advice of its sole Māori member, whereas our party has a very strong Māori influence within it.

The previous speaker said that we need to heal the past. We in New Zealand First say that with the inclusion of references to the principles of the Treaty of Waitangi and the recognition of two hapū—Ngāti Awa ki Tāmaki-makau-rau and Ngāti Awa ki Poneke—we will not heal the past, because we will in fact be making sure that we repeat the mistakes of the past. In that regard we have real concerns that this settlement will not be as enduring as people would like us to believe it will be.

From the beginning of this term of Parliament we have insisted that the principles of the Treaty of Waitangi be defined or explained—from 27 July 2002, which was the day of the last election, to this point in time. In spite of the numerous requests made by the Rt Hon Winston Peters and other members within New Zealand First to the Government to define those principles, it has been silent on that matter.

In conclusion, we say this bill must be based on issues that will be enduring not only for the Crown, but, more important, for Ngāti Awa. The fact that New Zealand First is taking the position of opposing the bill is not because we have any disregard for Ngāti Awa or for the intent of the bill, but because we have concerns that although the solution to this matter lies in the hands of the Minister and this Government, they will not exercise that opportunity. If the reference to the principles of the treaty was excluded, the bill would not lose any of its relevance in terms of the concerns that Ngāti Awa have.

I appreciate the opportunity to say a few words on clauses 1 and 2. I want to support my colleague Dr Wayne Mapp as he confirms the support of National to get these historic grievances out of the way. I say to those members in the Committee who are a little bit new to this process, and maybe to those who are not quite so new, that we need to remind ourselves that Māori are continually being told to stop looking at the past, but the reality is that as long as people carry a sense of injustice, they will always look to the past, and they will not be able to move forward until that injustice is put right. That is why these claims are so important.

I can understand the position of members of New Zealand First and their worry about the insertion of references to the principles of the Treaty of Waitangi, because we in National certainly have a similar concern. But I have to say I am disappointed that, at this point in time, they would see fit to vote against the third reading, although I am not sure whether they will. I think that would be a great disappointment, particularly as their Māori members know better than most how important it is that Māori are relieved of the burden of a feeling of injustice. Yet they will never be relieved of that burden if the majority of this Parliament does not vote for these settlements.

I appreciate that the Ministers in the chair, including Mita Ririnui, answered all of our queries and our requests to get to their feet, which is, frankly, somewhat of a change in a treaty Minister. I cannot remember the previous Minister getting to her feet in quite the way the current Minister, the Hon Mark Burton, has. We appreciate that, but I reiterate to the Minister the potential for controversy and difficulty unless we firmly keep in our minds the fact that each settlement is unique to the particular tribe that is settling.

That is why the member Judy Turner should do some homework about the issue about hapū. In our raising the issue with the Minister there was no sense of mischief at all. If members understood the basis on which hapū are traditionally viewed, they would completely understand why New Zealand First and National felt compelled to make the comments they did. There should be no sense that any tribe yet to settle is in any way pre-empted in relation to what they feel and believe should be the definition of who the beneficiaries of their settlements are, what they want to be recorded as being the hapū of their particular iwi, and so on and so forth. So I ask the Minister to keep a keen eye out to make sure that the Office of Treaty Settlements is not bringing him things that could cause problems in the future. We certainly have our reservations about the capability of that office to understand the dynamics of Māori, the tribe, and the things that are important.

In any event, as the Minister was so responsive this evening, I am depending on him to make sure that these things remain to the fore. The things that the Ngāti Awa people have agreed to are unique to them. The treaty settlement framework is being generally followed, and that is fine, but when we get things like whether adopted children or whāngai are to be included in settlements, and whether new hapū are to be added, those matters become very, very serious, and tribes that follow will not be told what should be in their settlements in regard to those things.

I am disappointed in New Zealand First’s stance. I have always made the comment in relation to settlement legislation that it is all very well for ACT to criticise, but where is ACT’s answer? I do not see any.

I move, That the question be now put.

Motion agreed to.

Clause 1 agreed to.

Clause 2 agreed to.

House resumed.

Procedure

Bill reported with amendment.