Ngti Awa Claims Settlement Bill

I wish to refer to three issues in this part. The first is the way the apology is written—in particular clause 8(3), which sets out the reason for the apology. In essence, clause 8(3) states: “The Crown acknowledges that: (a) Ngāti Awa as an iwi were not in rebellion and were unfairly labelled as ‘rebels’…”.

What concerns me about the sweeping nature of that statement is that quite clearly—and we can see this from the preamble and the tribunal report—there were large-scale movements, certainly, of many of the hapū of Ngāti Awa, culminating in a major battle in which many chiefs and sub-chiefs were killed. So it does rather beg the question that if so many hapū had risen up in arms—in this instance against Te Arawa, but also effectively against the Crown as Te Arawa were acting as agents of the Crown in that respect—then at what point is an iwi not in rebellion? If most of its parts were in rebellion, can the Crown now, 150 years later, say: “Oh, no, that’s not really the case. For the sake of convenience, it’s best to say that we acknowledge they were not.”?

I just wonder whether it is reasonable, when we are doing these settlements—and I am not disputing the settlement; I will come to that point directly—that, effectively, we try to rewrite history, as well. It seems to me that that is being done here in a significant way, because the next portion of this redress stems from the fact that the confiscations were inappropriate and excessive. It was noted in 1863 by the British Colonial Office itself that the New Zealand Settlements Act was open to abuse by the fact that it could be used to unfairly confiscate.

So there are two parts: firstly, were people in rebellion, justifying at least some degree of punishment? Secondly, was the level of punishment excessive, or is the Crown saying that there should have been no punishment at all? Is the Crown saying that nothing should have happened to the people who took up arms against Te Arawa, and indeed the Crown, and that the event should have been consequence-free? I can certainly understand the argument that the level of confiscations and the subsequent events of returning land to named individuals that then went up for sale was in itself an act of expropriation deserving of compensation. However, that is quite a different thing from, in a sense, rewriting our history.

We should at least be honest and recognise that there were large-scale wars, that the wars were against the Crown, and that some of the acts of the Crown were egregious. But did those acts warrant warfare of the largest scale in what, at that time, was the British Empire? So I think we need to be careful that for the sake of assuaging feelings in the 21st century we do not then attempt to fully rewrite our history. The events that took place were the events that took place. The actions of the Crown and the level of expropriation are perhaps separate issues deserving of recognition and compensation. In fact, in some parts the bill does that. That is the first point I raise as a general observation and comment.

My second point relates to the references throughout the apologies in clauses 8(3)(d) and (4)(g) to the principles of the Treaty of Waitangi—or, more accurately, described in the clauses as “the Treaty … and its principles”, as if they were two different things. I guess that that is the implication. We have the treaty that says one thing and means one thing, then, separate from the treaty, we have the principles, which actually are all a creation of the State-Owned Enterprises Act—the late insertion of section 9 into that Act—and the judicial creation that has occurred thereafter. National will support the New Zealand First Supplementary Order Paper to omit those references to the principles of the treaty. We will do so because reference to the principles has, I believe, caused confusion in this country in a variety of ways. Firstly, references have been inserted really without any proper consideration. As I said, they have their origin on a Supplementary Order Paper introduced in the Committee stage of the State-owned enterprises legislation. There was no opportunity for submissions or proper consideration by a select committee. The issue then went to the Court of Appeal for consideration in a special case involving the New Zealand Māori Council. The court seized the opportunity to provide a wide-ranging interpretation of those principles, and from there flows the concept of partnership and consultation.

The Government believes, at least at some level, that there is some form of constitutional partnership in this country. National does not agree with that approach, and that is why we will support New Zealand First’s amendments. We think that it has led the country into error and that we have an opportunity to correct it at this stage. The reason I say that the Government believes, at a certain level, in a constitutional partnership with Māori is that it includes references to the treaty, consultation, and special representation provisions through a whole range of legislation—education legislation, local government legislation, health legislation, and so on and so forth. We even had the rather odd situation of the Deputy Auditor-General having to have a knowledge of the principles of the treaty. It is simply a false way to govern the country. The founding value of any democratic country is that all people are treated equally under the law—that we all have equal democratic rights, that one does not subdivide one’s country by ethnicity and give one group one set of rights and another group another set of rights and try to construct the Government of one’s country on that basis.

I know that the Minister will say I am exaggerating but, in reality, over the last 15 years we have grown up a whole process and procedure of consultation, not just at an informal level by ministries but by embedding it in legislation. That has then led to special electoral rights, special committees, and so forth, which, in reality, give Māori special consultation rights. That is how the Government interprets the partnership principle. It is fundamentally wrong to establish such an enormous superstructure of constitutional theory on the basis of amendments on a Supplementary Order Paper inserted into legislation nearly 20 years ago, when the particular provision on that Supplementary Order Paper never received proper debate.

If we want to construct a constitution afresh and introduce something like reference to the treaty, then that ought to go through a proper, considered process. It did not then, and we have the opportunity now to correct it. If there is a need for reference to the treaty—and I acknowledge that in a number of cases that is appropriate; obviously in treaty settlements, by definition, it is appropriate—it should be to the terms of the treaty. That would then cause people to focus on what was undertaken in the treaty, on what we are compensating, and on whether there was a breach, for instance, of article 2. In short, were properties expropriated or were they not? That is a much more honest way of dealing with the framework that should be used for treaty settlements.

I want to close on this point. National is very firm on this issue. We believe, after nearly 20 years of reflection and examination of how the references to the treaty have insidiously developed the superstructure of partnership, that it is time to take a fresh look. If there is to be a reference to the treaty, it ought to be to the terms and undertakings of the treaty itself, because that is actually the basis on which we are undertaking this settlement process.

I am proud to have been in the Chamber this afternoon to hear that speech from Dr Mapp of the National Party. I think it was the kind of speech that the people of New Zealand were entitled to expect their representatives in this Parliament to make 20 years ago. It is interesting that there are virtually no press gallery members here, but that was an important speech. That speech stated, in a few minutes, the end of the conspiracy—or the cosy consensus—that has for so long existed between the two major parties not to debate the reality of an academic myth that was created some time ago. Dr Mapp effectively said that he has reservations about the apology in this bill, and he then went on to adopt what has been the ACT position for some time. I am not trying to score a cheap point here, but ACT has been describing the partnership as mythical and the principles as spurious for as long as I have been in Parliament.

Dr Mapp called for settlements to be justified on the basis of the actual treaty—the document that was actually signed—and what it might have meant to the people at the time, not what it has come to mean to a bunch of people looking for a replacement for religion 150 years later. It is interesting that Dr Mapp was as unequivocal as he was. He said that this apology reflects a view of New Zealand as being made up of two or more tribes that are negotiating with each other through their peak representatives and offering each other collective entitlements. I think it was enormously refreshing to hear a National Party member make a speech along those lines.

In this bill the Crown makes an apology and states in clause 10(8) that it: “… profoundly regrets its failure to acknowledge the mana and rangatiratanga of Ngāti Awa.”, yet still it makes no effort to state what rangatiratanga is. Why, in 2005, is this Government continuing to use a term that has led us only to explore our navels and, as one very well-respected expatriate New Zealander put it, to talk ourselves into a nervous breakdown? It is a word that is very capable of creating irreconcilably conflicting expectations. On the one hand people see rangatiratanga as being a species of self-government power little short of sovereignty, and on the other—the view that I think is the proper orthodox view, although it is not held widely by the intelligentsia of this country at the moment—as simply a good description of classical English property rights, in terms of the notion that within one’s own boundaries one is king of one’s own castle and lord of one’s own manor.

Here in this bill the Crown is repeating terms that are deliberately evasive. No one now knows exactly what they should mean. We have the Crown apologising unreservedly for having undermined “the social and traditional structures and autonomy” of some people who actually comprise part of the Crown, if the Crown is now the embodiment of our own self-government. The Government that is unreservedly apologising for undermining the social and traditional structures of those people is the same Government that is unreservedly attacking the traditional social structures of the majority. This Government takes pride in scoffing at the traditional religions of this country.

💬 Hon David Benson-Pope: Rubbish!

Was Mr Benson-Pope there when his colleague Chris Carter described the Catholic Church in Hamilton as, I think, “a reservoir of anachronistic bigots”? That was the view he expressed. That is why the Government sticks in the throats of New Zealanders—[Interruption] Is Annette King deriding that? She is the same honourable Minister who has decided that we will no longer give health care on the basis of need but will give it on the basis of race. She is the honourable Minister who has decided, for votes, that it is even OK for New Zealanders to break what Shylock said, when he asked: “… do we not bleed?”.

Was that not amazing? We went from a debate, in which I may not have agreed with every word of Dr Mapp’s speech but I found it—I am in agreement in this one regard with Mr Franks—a considered, reasoned, and useful contribution for us to think about, to a bunch of slogan-slinging across the Chamber from Mr Franks. That is a sad reflection, but it perhaps explains well how the ACT party got to where it is in the polls.

I will make two quick responses. Firstly, I think it is important to note, in relation to the historical references Dr Mapp referred to, that we should remember the tribunal heard and considered extensive evidence. The conclusion was reached at the end of that process that the historical record showed the iwi was not, in effect, in rebellion. That was the conclusion reached. The Crown considered that conclusion. It took further advice from Crown Law, and in the end it agreed that, indeed, the iwi was not in rebellion. That was not a flippant or an ill-considered view. I guess history will always be revisited and debated, but I think it is important to put on the record of this Parliament that it was a considered conclusion and that it therefore forms a fundamental part of why the apology is phrased as it is.

Secondly, there are a multitude of reasons for the references to the principles of the Treaty of Waitangi. I will not indulge myself, and I am sure the Labour whips would not enjoy it if I did, but let me at least make one practical reference. Under the Treaty of Waitangi Act—[Interruption]—I say to Mr Franks, the tribunal is charged with making recommendations on plans relating to the practical application of the treaty, and determining whether certain matters are inconsistent with the principles of the treaty. Quite simply, therefore, in the interests of finality the Crown needs to refer to treaty principles in legislation and to ensure that all relevant claims are being settled. To fail to do so would simply be to leave the door open to reinvestigating claims relating to treaty principles.

It was probably timely for someone to point out, as the Minister did, that the phrase “the principles of the treaty”, which I acknowledge is now causing quite a lot of difficulty, was framed in the enabling legislation that set up the jurisdiction of the tribunal.

💬 Dr Wayne Mapp: Labour legislation.

My colleague says it was Labour legislation, and of course he is quite right. I have wondered, as the term “the principles of the treaty” has come under such a lot of fire over the last few years, whether people are aware that that legislation is probably where it stemmed from. I noticed that a Sunday Star-Times columnist attributed it to my late father-in-law, indicating that he somehow invented the term “the principles of the treaty”. He did not, and he did not really have to.

Coming to Part 1, there is something I want to ask the Minister. Of course it is proper—particularly when Ngāti Awa have gone through the long process of taking their claim to the tribunal and having their history adjudicated on and recorded, and given that this is another tribe who were made landless and labelled “rebels”, “wrong people”, and so forth—that any such settlement cannot proceed unless there is an apology first. I know that some people find this difficult to believe, but the reality is that sometimes the apology is the most important thing, because it is a vindication of all the grievance and the hurt that tribes have felt over the last 140-odd years or more.

No doubt Ngāti Awa have also worked on the text of this part. Again, I hope someone has been through it with a fine-tooth comb and made sure that one text is a translation of the other. That leads me to ask the Minister about apologies in the three ancillary claims dealt with in a Supplementary Order Paper. Deeds of settlement were signed in respect of these three ancillary claims also. These were not completed when the select committee held its hearings, which I do not think sets a good precedent. There is a main claim, and in this case some ancillary claims are attached. I think that in future the Minister ought to make sure that all claims, whether they are a main claim or an ancillary claim, can be examined by the select committee.

I will stand to be corrected, but I do not think that these three ancillary claims were. If I had been able to do so I probably would have raised the issue in the select committee, but, as I was not, I raise the issue now. If a treaty settlement is being made, albeit it is called an ancillary settlement, nonetheless someone has presumably been done a wrong. There does not seem to be any apology to those three claimant groups, and I would like the Minister to explain why that is so. Maybe the groups did not ask for an apology. That seems a bit unusual to me. The claims might be termed ancillary, but for the families for whom the ancillary claims have been negotiated, the hurt is just as big as the hurt for the groups concerned in the overall claim; therefore, presumably, an apology should have followed in the ancillary claims as well.

On the other matter, I think the Government has been guilty during its time in power of bringing the term “the principles of the treaty” into disrepute. Some will say that the principles must be referred to in settlement legislation, but the Government has tried to insert them into health legislation and all sorts of other legislation where they really are not appropriate.

I will quickly respond, now that members have finished. The ancillary claims relate to specific sites that are returned to an identified group of owners. It is fair to say that the more general apology relates to the whole population of Ngāti Awa.