Ngti Awa Claims Settlement Bill

The importance of this part is that clause 15 states that the settlement of the historical claim is full and final. I know that that is the overall intent of the entire settlement process, and, indeed, National is determined that this country will complete the settlement process. Part and parcel of that is, obviously, that settlements are full and final. It is the same form of acknowledgment seen in the settlements that the National Government was involved in.

The Māori Affairs Committee, in its commentary on the bill, noted that only 40 percent of eligible iwi members voted on the deed of settlement, and, of that number, 78 percent supported the settlement offer. That is actually less than 40 percent. Therefore, barely a third of eligible iwi members supported the settlement offer. The select committee noted in particular—and I bring this to the attention of the Committee—“The committee is concerned however that numbers participating in the ratification process were low. This concern has been expressed previously in regards to other Treaty claims settlement legislation, as it may ultimately affect the durability of settlements.”

The problem is that this rate of participation is significantly lower than in other substantial settlements. Although we are legislating that the settlement is full and final—and National will be voting, as will the Government, that it is—can we be confident that maybe 50 years from now the members of the iwi at that stage will not be coming to the Government and saying that there was not sufficient participation to bind subsequent generations? What level of assurance can the Government give us that the process that was entered into—this provision—has sufficient integrity to bind members of future Governments and, more particularly, claimants?

The Government will say there is no ultimate guarantee, and that is correct, but this is a very serious issue. The select committee has specifically drawn to the Government’s attention the need to increase the level of participation. It is not good enough to say, as previous Government speakers have said, that those people had the opportunity to participate. Special care has to be taken, because these settlements are intended to be full and final not just for 50 years but literally forever. As a nation we are not intending to revisit these issues again, because the process that has been gone through in this generation is intended to be sufficiently deep and wide ranging so as to bind not just this generation of claimants within Ngāti Awa, and the Crown, but all future generations. It is not like the settlements of the 1940s, which we have acknowledged today were inadequate. Essentially, they were imposed settlements. These settlements are supposed to be different. They are supposed to be reached by agreement—not imposed—and therefore enduring.

So I ask the Minister in the chair, the Hon Damien O’Connor, to take a call and set out what strategies the Government has in place for future settlements. Obviously, they cannot be done for this settlement, because the events have occurred, but we do need a much deeper process of participation to give assurance to New Zealanders that the process of settlements we are currently going through closes the book forever—not just for one generation, not just for two generations, but literally forever.

As we develop as a nation it is important that we find the things that bind us together rather than look at the seeping wounds that divide us. Ensuring the integrity of the process will be part of that search.

In speaking on Part 3, the issues that have just been traversed in Part 2 are, again, of importance. Although Part 3 starts with a grand claim that this is the final settlement, in actual fact the matters we have just traversed do impact upon this provision, particularly with regard to hapū, and particularly with regard to the principles of the Treaty of Waitangi. I do not believe that Parliament fully understands these issues, and certainly not the Government of the day, which has chosen to debate these issues in the Committee without any informed mind and without any Māori voice, whatsoever. I recall that this was so in the first reading debate when there was not even the courtesy of mentioning to Māori members when this very important matter, so far as Ngāti Awa was concerned, was going to be the subject of the House’s thinking and debate.

The issue before us again is, first, that the principles of the Treaty of Waitangi are vague and undefined, and as Dr Mapp has already stated, subject to incorrect interpretation from 1987 onwards, based upon a slip by the judge of the day, amplified by misdirection by the then Labour Government, worked through the 1990s by the then National Government, and now we arrive at the situation whereby that omission, which Parliament has just declined to rectify, has implications with regard to the supposed final settlement of Ngāti Awa. Those undefined principles are the seed of potential problems in the future. They are not defined in the bill. There is no clarity or expression as to what they mean, and that gives an opportunity for others to raise matters in the future.

Let us also look at the matter of the hapū, because a strange distinction has been made by this Parliament. I say if Ākarana and Pōneke, why not give all due regard to Brisbane, Sydney, or other places? The fact is that in Part 2 the Committee sought to give formal definition to a departure and a landmark with regard to Māori, and that will have a long-term impact, not just upon Ngāti Awa in the matter before us but upon other tribal groups as well.

So I want to raise again the fact that only a Labour-Progressive Government—which is not mindful of these matters, and which in this Chamber has not had the benefit of informed advice from its Māori members during the course of this debate—could arrive at a conclusion in Part 3 that leaves not a final and lasting settlement but the ability for these issues to be revisited again and again. If that is not on the matter of the principles of the Treaty of Waitangi, which is our belief, it is certainly with regard to the hapū definition that this Parliament has sought to endorse. Therefore, on behalf of New Zealand First, I say that that is a very important matter that the Labour-Progressive Government ought to have realised is an omission.

Last of all, I say that that in no way extinguishes this fact: we are not in any way, as my colleague has already mentioned, casting a slur on any matters with regard to Ngāti Awa. We believe that those matters belong with them, and that this Parliament has done Māoridom a disservice in attempting to legislate for that strange departure and omission.

I rise for the ACT party to speak on Part 3 of the Ngāti Awa Claims Settlement Bill. In relation to the part we are talking about, concern has been expressed about this matter going on forever. I think that concern is very properly raised when the bill itself has a clause in it that excludes the rule against perpetuities.

That rule was developed out of centuries of English experience of how unfortunate it is to have assets and land tied up for generations. If one has very long-term trusts, over time it is very difficult for the land not to fall into some kind of decay. The original purpose of the settlement has long passed, the people who knew what it was about have long gone, and the values that drove them and their interests have become redundant or anachronistic. So the rule against perpetuities was a rule developed by those old English lawyers to try to make sure we did not have the embarrassment of property that could hardly be used, or was useless, at the same time as putative beneficiaries, who should have been getting a benefit, were living in poverty.

Yet each of these settlement bills is setting up rather vague entities. Each one is setting up very, very curious rights on the part of those entities, and then is excluding the rule against perpetuities, so that those things go on forever. I am not sure whether that has ever been questioned in this Parliament before, but as I look at the bill and listen to, for the first time in my experience here, a substantial debate on a settlement bill—a debate not caused just by ACT saying: “Hey, the emperor has got no clothes.”, but a debate joined by New Zealand First and, very substantially and with excellent contributions, by the Hon Georgina te Heuheu and Dr Wayne Mapp—I share the concern just expressed by New Zealand First that this bill is not a full and final settlement, and that in its very terms it is contemplating future grounds for grievance. I think it will be used by another generation to show how careless the Crown still was of Māori interests, in that we lightly set them off on a route with governance entities of a fragility that was predictable, given long experience, and with exclusion of the rule against perpetuities, so that they could last forever.

What is being set up in this legislation to last forever? As far as I can see, it is a document entered into to give effect to the Ngāti Awa deed of settlement. Well, that includes these protocols, perhaps; it includes these declarations of interest, which are called “deeds of recognition”. On the other hand, a deed of recognition, which one would think was pretty long-term and permanent, is expressed later on as being meant to die when the Minister changes—so it looks as ephemeral as a bubble. I am at a loss to understand why there is so much concern to exclude the rule against perpetuities, while at the same time there is created the legislative equivalent of beads and bangles—things that could be gone and lost as soon as they are created.

In fact, the deeds of recognition and the protocols can be dispensed with tomorrow, if a Government Minister decides to do that. The legislation does say that there must be consultation. So what is the point of, then, and what kind, of documents are contemplated by, clause 19, which states that the rule against perpetuities is excluded? The Minister might be able to explain. The substance of the bill, or its next part, contemplates things that appear as if they are rights, and look to be redress, but are in fact very insubstantial indeed.

I am also puzzled about the contemplated role of the Treaty of Waitangi tribunal.

In relation to Part 3 there are probably two matters I want to raise. The first is in relation to subsection (24) of section 6 of the Treaty of Waitangi Act, as inserted by clause 16: “Subsection 23 does not exclude the jurisdiction of the Tribunal in respect of the interpretation or implementation of the Ngāti Awa deed of settlement, the ancillary deeds of settlement, or the Ngāti Awa Claims Settlement Act 2004.” I wonder whether that provision addresses the issue raised by Stephen Franks earlier when we were having a discussion about the English translation of the preamble vis-à-vis the Māori translation, and who, if there were some differences raised at some stage in the future over those matters, would adjudicate. I think that was the nub of the issue raised. Well, subsection (23) talks about the tribunal doing that. I am not sure whether—I can see that Stephen Franks is pulling a face.

💬 Stephen Franks: It should be the Māori Land Court.

So there you go! I raise that issue, because this is probably the first time in the settlements process that the issue of what the best translation is has come to the fore in such a significant way. I suggest that the Minister in charge of Treaty of Waitangi Negotiations needs to pay some attention to the issue of what happens if there is some difference raised. Just as we have battled over the English and Māori translations of the treaty, there is always room for a similar issue to arise in the future over the translations of the preamble.

The other matter is to pick up on the issue that my colleague Dr Mapp raised, which is about the numbers who vote, who ratify the deeds of settlement, and, indeed, who vote on the governance entities. To tell the truth, National is extremely worried by the attitude of the Office of Treaty Settlements. When asked why we should be satisfied with low turn-outs, that office’s answer basically was that that was the model that had been set, that everyone had followed that model, and that it was OK. Those are not the exact words, but that is the gist of the office’s answer. But National says that, particularly in relation to the centre of the North Island, with many tribes claiming parts of those areas, we now have a situation where there are myriad cross-claims. There are overlapping claims, and Ngāti Awa is the first iwi of that whole group of iwi with claims that criss-cross to come through.

I do not think that that issue had quite the same potency in previous settlements. I would ask the Minister to consider taking a call to tell us whether, following the select committee’s comments on the issue of ratification, any work is being done to see whether greater ratification might be required in the situation where there are all these overlapping claims and where, unfortunately, some claimants are still way back in the queue. They are watching intently as other settlements are concluded ahead of theirs, and they start to wonder how their claims—often, overlapping claims—will be dealt with and where they will end up.

What went on and was a model 10 years ago, albeit put forward by the National Government, was the best framework that was developed at the time. All these frameworks, particularly where we are dealing with complicated issues—and this framework in particular—ought to be reviewed. The select committee has been raising that issue pretty constantly now for the last 2, 3, or 4 years—in fact, ever since the Labour-Progressive Government came to power, funnily. The Opposition has been raising that issue of mandate and of whether any work has been done around it.

This part of the bill is relatively small. It appears immediately after some long recitals of pretty contentious rewritings of history, and it then goes on to define and include the provisions that members are considering, as to how long they will last. Mr Mapp, and Mr Pita Paraone of New Zealand First, raised in this connection whether this part contemplates these deals lasting. It does not appear that the Government itself expects them to last.

When we look at the arrangements that are contemplated and the documents that are to be entered into, and that have been protected, on the basis of this bill—I mention clause 19, the protocols, and so forth—all that is required is for the Environment Court, the Historic Places Trust, or whoever else has to take account of them, to have regard to them, to have particular regard to them, or to be consulted on the various formulations. That does not seem like a very solid kind of obligation.

Plainly, as well as this, the settlement will have a substantial sum of money—one imagines it will; they always do. I do not think that this document tells us what the amount of money is. Instead, it refers separately to the deed of settlement, which is not itself set out in the bill. So I imagine that the amount is set out in the deed. But I would like the Minister to tell us, or just remind us, what the amounts are under the Ngāti Awa deed and the ancillary deeds, because this part states that they will be a full and final settlement of historical claims.

It is not easy to know why they will be a full and final settlement of historical claims. A clean break principle is usually considered desirable in nearly all disputes. That is the principle that we eventually introduced to underlie our family law—the clean break principle. But this part provides for removing memorials on land, and provides for the Waitangi Tribunal to continue to have jurisdiction to interpret the deed of settlement.

If this is just a contract, why would it not be the Māori Land Court? The Hon Georgina te Heuheu raised the question of whether the Government really considers that the tribunal will be around in 50 years’ time, because it has made those documents endless. The perpetuities period used to be effectively 21 years plus a life—a life in being. As a lawyer, one could convert that to a crude assumption that it is intended to go for around 80 or 90 years. Will there really be a Waitangi Tribunal still adjudicating, in 80 or 90 years, between Māori and Pākehā, or between Māori and the Crown, as if Māori were not part of the Crown—as if Māori were a separate tribe from the rest of New Zealand? Is that what the Government is considering, by expressly telling us that the Waitangi Tribunal will deal on contractual disputes under this settlement? Is the Government telling us that the rule against perpetuities does not apply, so that they can last at least 90 years?

What sort of message is the Crown trying to send, in putting into this small part provisions that tell us that the Government does not expect the country to be able to put an end to the grievance industry? Because that is what the legislation is saying. In clause 16, section 6 of the Treaty of Waitangi Act is expressly amended to exclude the tribunal’s jurisdiction in respect of the historical claims, but to preserve the jurisdiction in respect of the interpretation and implementation of the Ngāti Awa deed of settlement and the ancillary deeds of settlement.

I think the Minister ought to tell us just what persuades him that this will be the end, particularly when we know that Ngāti Awa did not give this settlement an overwhelming mandate. Presumably there are Ngāti Awa who argued against accepting it, who will come back and say: “Deal’s off. We didn’t approve it, it wasn’t for us, and it’s defective anyway.”

The Minister in charge of Treaty of Waitangi Negotiations has returned to the chair, and I just wonder whether he heard the issue that I raised earlier. It was in relation to the ongoing concerns that the Māori Affairs Committee is now raising in regard to ratification. I am very much aware that it was a National Government that basically developed the model, the framework, for settlements that, by and large, this Government is following. So this is a genuine expression of concern, because we see it as providing an opportunity. If the ratification is considered low, we do see it as providing an opportunity at some time in the future for some people of Ngāti Awa descent to come back and basically say that this settlement was not their settlement.

We hope that never happens. We hope that this Parliament will pass settlement legislation that will see an iwi on its way, developing some of its human capital and its economic capital, and all will be well. But that may not be the case, and I would like the Minister to bear that thought in mind. The Māori Affairs Committee has been told by the Office of Treaty Settlements that the ratification numbers are in line with previous settlements and, indeed, they are higher than some of the previous settlements. We were told, in relation to a recent settlement that is still to come back from the committee, that Tainui, for instance, had a much lower participation rate for mandating the settlement than we have now.

That may be the case, I say to the Minister, but the issue is this. As the Minister well knows, the central North Island is loaded with claims. There are a number of tribes claiming into the same areas. I do not think that was necessarily a feature or characteristic that stood out when, say, Tainui settled its claim. The unfortunate thing about the way all this has proceeded is that we now have the claim of one of those tribes on the table here, ready for the legislation to go through, and there are other tribes whose claims, they say, overlap, who are still way down in the pecking order. Therefore they are deeply worried about what will be left—no matter what assurances the Office of Treaty Settlements gives now—when their claims come to be settled.

As I said, I think there is a feature present now, particularly in relation to the central North Island claims, that was not as significant—if of any moment—in relation to, say, Tainui, that I think the Minister needs to give some thought to. There are cross-claims and overlapping claims. Although some land can be left aside to take care of those other claims, that may or may not be adequate in the end. If this Minister can get the whole of the central North Island claims process moving soon, so that everybody, hopefully, is moving at once, which might help to minimise this issue of one tribe feeling worried about what is going to be left for them, then that may be the answer. I know that there is great hope that the Minister may be able to do that.

It is a real issue. As I said, 40 percent of those eligible to vote is not a clear mandate, given that there are two or three other tribes whose settlements impinge on this particular one. That will get even more so as we move along. The issue is the same regarding Tūwharetoa ki Kawerau, on which the select committee will shortly report back to the House. No doubt the issue will arise again in some of the settlements following. There is a different environment in the settlement of these claims to what there was previously. The Minister needs to give some thought to it.

I thank the member who has just resumed her seat. I want to respond briefly. As she said, this is a different time and place. It is worth noting, though, that the participation rates in the vote were identical—40 percent. The acceptance rate for Ngāti Awa was 87 percent, as opposed to Tainui at 65 percent. In real terms, this bill has a greater mandate than the Tainui bill received. But I equally accept from the member that we should always be looking for higher voter participation rates. I give some assurance to the Committee that that level of 40 percent should not be taken lightly. As we see in general elections and local body elections, we do not compel people to vote, but we must ensure that every reasonable opportunity and encouragement have been given for people to do so. Oft times it is a fact of human nature that when we are happy with something we tend not to go out of our way to vote or do what we need to do.

This issue is something that I personally take very seriously as the new Minister in charge of Treaty of Waitangi Negotiations, and I know that the Office of Treaty Settlements does. Each case will be looked at seriously and carefully.

To go to the matter that Mr Franks raised about the bill not including the detail of the quantum settlement, the provisions are not required. The settlement of the quantum is an example of the contractual arrangements that come out of the settlement. But, obviously, it is a fair inquiry and a matter of interest to the members of the Committee, so, to put it on the record, the Ngāti Awa quantum amount is $42.39 million and the ancillary claims in total—the three claims combined—have a value of $410,000.