Ngti Awa Claims Settlement Bill

Members should note that this part includes debate on schedules 3 to 15.

This is quite a long and involved part. My first speech will deal with the general propositions that this part raises.

I have been comparing this legislation with the Ngāi Tahu legislation and the Te Uri o Hau legislation, and there is a very particular reason why I have done that. This part is entitled “Cultural redress”. It deals with a whole lot of technical issues about consultation, camping rights, property rights, and so forth, but it is actually headed “Cultural redress”. Clause 5(5), in the preliminary provisions in Part 1, states: “Part 4 deals with cultural redress …”, and is: “(c) an acknowledgement by the Crown of the statements made by Ngāti Awa of their cultural, spiritual, historical, and traditional association …”. In contrast, the Ngāi Tahu settlement, which was also a very complex and involved settlement, referred to economic, social, and cultural redress. Nowhere is there a part headed “Cultural redress” in the Ngāi Tahu legislation. No reference is made in the legislation to spiritual connections.

Why is that important? It is important because our legislation—our country, actually—is founded on the basis that, as far as possible, we separate people’s spiritual connections and beliefs from the public arena. We treat those matters as essentially private matters. They are not necessarily individual private matters; they certainly could be related to a group as a whole or, indeed, to an ethnic group as a whole. What we do not do, however, as a general proposition, is try to incorporate spiritual beliefs into legislation. There is a very good reason for that. At heart we are a secular society. That does not mean to say that we are a society where no one has any beliefs in the spiritual world. Quite clearly, people do, and those beliefs are very broad ranging. They are not connected just with Māori; they are connected with all sorts of cultures in our community. That is part of the basis of our community. But, nevertheless, at quite a principled level, we have said that we separate people’s and groups’ spiritual beliefs from legislation. Hence the concept that we are a secular society. The Prime Minister takes that to the point whereby, for instance, she does not have grace said at State luncheons or State dinners. That is a deliberate separation made by her. It has offended people, but at least I can see where she is coming from.

We should not be recognising spiritual beliefs in legislation. We should not be entitling whole parts of legislation “Cultural redress”. That is not a criticism of individual points within that, but rather of the idea that the Government is importing into it. I believe that it is seriously blurring the idea that New Zealand is a secular society. The damage is this: it essentially elevates one group’s cultural and spiritual beliefs beyond those of all other groups. It gives them special legislative protection.

I do not believe that intention was at the heart of the Treaty of Waitangi. I do not believe that when the treaty was established, there was any intent upon the Crown to provide for the protection of spiritual beliefs per se. Certainly at that stage there was a great debate in the British community. In the British Parliament and in British society in 1840 there was a hugely important debate about trying to separate people’s individual and group beliefs from the body politic, from the legislative arena. That was a hugely important debate. It was part and parcel of the development of modern democracies. And here we have the Government, perhaps somewhat unintentionally—I will even acknowledge that—reimporting such matters into legislation.

We are signalling to the Government that it is time to stop doing that. In the 21st century, rather than uniting New Zealanders, the inclusion of those kinds of phrases is actually dividing New Zealanders, for the very same reasons that such matters divided Europe for 200 years, in the great debates that occurred during the Renaissance and the period that was known as the Enlightenment. It was known as that because it was all about establishing the values of individual liberty, democracy, and the separation of Church and State—separating private belief from public governance. What the Government has done that makes this settlement different from the Ngāi Tahu settlement is to reimport those matters back into New Zealand law. I would like to think that in the 21st century the Government would re-examine the value of doing that.

I will conclude on the point—National is very clear on this—that the pathway to the future on these issues is not the path of trying to include in our legislation the spiritual beliefs and cultural values of groups and individuals. We are not saying that groups and individuals should not have those beliefs, but we are saying that it is not in the domain of this Parliament to be legislating for them. That is the pathway to division and, more important, it leads to the destruction of our democracy. Our democracy will not benefit from doing that. [Interruption] The Labour member opposite may scoff, but it is those kinds of seeds that end up dividing communities. It is those kinds of seeds that separate people one from the other, and cause them to think not about the things that unify them in a democratic society, but about the things that divide them.

So I say that the importation into legislation of the title “Cultural redress”, and the reference in the legislation to spiritual values, is wrong. It is harmful to our society, it does not promote unity, and it does not help the settlement of grievances, but actually ends up promoting them. I ask the Government to think clearly about what it is doing to our country, because this is the pathway of division. The message should have been heard by the Government last year, but apparently it was not. Even now, after the huge debate that has occurred in our country, the Government is still seeking to divide New Zealanders by elevating and importing into legislation spiritual beliefs and cultural redress, but that is simply not a role for this Parliament.

I regret that Wayne Mapp has chosen to enter into some quite fundamental interpretation of his own. The word “cultural” means “cultural”. He has chosen to interpret it to mean many things that simply do not exist in this legislation.

I have to point out to the member, first and foremost, that most settlements, including and in particular Ngāi Tahu’s, include statutory acknowledgments. In the case of the Ngāi Tahu legislation they go on for pages. That legislation recognises the iwi’s longstanding cultural association with, and the significance to the people of, particular Crown-owned sites. That is in order to enable local government, for instance, to understand that reference.

💬 Dr Wayne Mapp: There’s no reference to spiritual values in the Ngāi Tahu legislation.

I have to say to the member that he is drawing a long bow. In my submission, the reference in the legislation to those relationships, to ensure wide community understanding and acknowledgment of the strong historical links between the people and those places, so that they can be properly recognised in the future, has no place in a discussion about dividing our nation. On the contrary, I think that the references in this bill serve to do what we as a nation should want to do going forward. I suggest that our democracy is, in the end, the stronger for our celebrating and embracing our differences. They are the things that make us unique. They are the things that strengthen us and give us a unique cultural heritage going forward.

💬 Dr Wayne Mapp: I’m not denying that.

I think the member has confused the practical function of this legislation in its reference to cultural heritage with things that simply are not referred to in the legislation.

Subpart 1 is headed “Protocols”. It is very interesting, given the reference to cultural beliefs and spiritual values, that these protocols were not referred to as tikanga. But I can understand why they were not included as such. That would have contravened the Government’s decision to support the recognition of two hapū based purely on geographic location, which is outside tikanga. So I can understand why the Government has called this subpart “Protocols”.

I want to refer to clause 21, “Authority to issue, amend, or cancel protocols”. Clause 21(1)(a) states that the Minister may “issue a protocol to the Ngāti Awa governance entity in the form set out in the schedules to the Ngāti Awa deed of settlement;”. That quite clearly refers to a template for a protocol. What is of interest to me is clause 21(1)(b), which refers to amending or cancelling that protocol. I have to ask what happens if any amendments are at variance with one another. Again, this clause provides an element of doubt. It also may put in question the endurance of the settlement this bill is addressing. I think it is important that if there is to be any amendment to protocols, then there ought to be some form of template so that there is consistency within the different areas that this particular clause addresses.

I also note that under clause 23, “Enforceability of protocols”, subclause (2) states: “If the Crown fails without good cause to comply with its obligations under a protocol, the Ngāti Awa governance entity may, subject to the Crown Proceedings Act 1950, enforce the protocol.” Again I refer to New Zealand First’s Supplementary Order Paper—which was defeated earlier—asking for the deletion of the words “or the principles of the Treaty of Waitangi”. I suggest that here is an opportunity for Ngāti Awa, should they not be too happy with a decision by the Crown to cause Ngāti Awa to comply with their obligations under a protocol, to make a further claim to the tribunal, because it is in contravention of the—

The CHAIRPERSON (H V Ross Robertson): I am sorry to interrupt the honourable member, but the time has come for me to leave the Chair.

Sitting suspended from 6 p.m. to 7.30 p.m.

I will correct an omission of mine just before the tea break, and that was to acknowledge all the Aucklanders who are caught up in the traffic gridlock. I thought that by coming back after tea I might have missed them, but I realise they are still there, so I acknowledge all of those who are still caught in traffic.

I will conclude my time talking to this part by focusing on clause 23, and in particular subclause (2), which begins “If the Crown fails without good cause to comply with its obligations”. I notice that the bill is very silent on whether the Crown is obliged to comply if Ngāti Awa do not agree with the obligations under the said protocol. That highlights again for New Zealand First some of the uncertainty about this bill. We referred to the earlier uncertainty with regard to the term “principles of the Treaty of Waitangi”, and said that those very words lack definition. Here we see a repeat of that situation, and it again puts into doubt the durability of this settlement.

I will speak briefly to Part 4 and pick up on the purpose of the statutory acknowledgments. Members will be familiar with these from previous bills that go right back to the Rt Hon Doug Graham’s work in regard to Ngāi Tahu, or Kāi Tahu. There is something here that is quite significant. In this bill, the statutory acknowledgements are far greater. If one takes into account the potential impact of what those acknowledgments might mean, alongside suggested concepts and amendments in the current Resource Management and Electricity Legislation Amendment Bill, the impact will be greater when that bill becomes law than it is at the present time. There is a very strong suggestion in that amended bill that these matters, in regard to iwi authorities and their place in resource management planning, will be elevated above what they are now. Whether or not that becomes so is a matter for select committee deliberation and consideration. But the fact remains that the acknowledgements that are listed in the Ngāti Awa Claims Settlement Bill, and the bodies that have to have regard to them, will make for an unusual situation if this bill becomes law and when local authorities in the Whakatāne district have to consider those matters.

I say again that the acknowledgments are much more lengthy than in other bills. They are local and there remains a residual concept of what the local authority must do. If one reads the bill in its entirety, the term “have regard to” has quite a persuasive impact. The Minister in the chair, the Hon Mark Burton, has already said that this is part of growing up as a nation. I acknowledge that. This bill, which is long overdue as far as Ngāti Awa is concerned, is part of the process. But there remains a residual doubt as to what impact this bill, along with the work being done on the renewed Resource Management and Electricity Legislation Amendment Bill, will have on day-to-day practice. I suggest that that should be clarified by the Minister before the end of the debate.

I reiterate what I said earlier. Most settlements do include references to statutory acknowledgments. This ensures that there is clarity about the matters that should be taken note of by local authorities, other appropriate agencies, and statutory bodies in terms of the customary and historic relationship of the people with particular places under Crown ownership. I think it is fitting and appropriate that they are included. It is certainly the case that in Ngāi Tahu’s settlement there were many pages of such statutory references and acknowledgements in order to ensure that those relationships were properly recorded.

Part 4 of the Ngāti Awa Claims Settlement Bill is what one could colloquially call the guts of it. It is where all the various privileges and rights are set out that need law to give them effect. It is where we see cultural redress properties identified and either set aside or made subject to encumbrances. It is where the Crown undertakes to give statutory acknowledgments and where it undertakes to enter deeds of recognition. It is where the Crown gives first dibs, or first rights, to coastal sites.

I am interested that no other member has spoken about this in this part of the debate. Coastal tendering on these sites will be for very valuable marine farming, and Ngāti Awa is given preferential rights to tender. At the same time we know that the Government gave 20 percent of these sites to Māori on a pan-Māori basis, anyway. There is no explanation of why something that is apparently part of a general settlement of potential claims with Māori is also now supplemented by preferential bidding rights, including automatic bidding rights at a deemed tender of $1, which must be accepted.

I would really like the Minister to explain why it is that if something is advertised and the Minister gets inadequate offers, the Minister is giving away the right to turn them all down, as any sensible tendering regime does, and instead is deemed to accept an automatic bid of $1. It could be a failure of advertising that leads to that situation. Has the Minister had legal advice on the sorts of slips between cup and lip that could result in automatic vesting of valuable rights for $1?

I want to go back to another very interesting speech made by Dr Wayne Mapp from National, who pointed to the entrenchment of weird religious concepts in this bill. These concepts have been in many bills and ACT has worried about it before. Many pages of the statutory acknowledgments cite things such as taniwha living in various places, the traditions that are asserted, and the places where the people of Ngāti Awa reflect on the life of their ancestors, sensing the ihi, or power, the wehi, or fear, and the mauri, life force, emanating from the land and the water. The bill states “All elements of the natural environment possess a life force”, and “The mauri of the coastal area represents the essence that binds the physical and spiritual elements of all things together,”.

Then we look at what the purposes of these acknowledgments are. Why is the Crown getting Parliament to acknowledge these statements of spiritual mumbo-jumbo? It is to require the relevant consent authorities—the New Zealand Historic Places Trust, or the Environment Court—to have regard to the statutory acknowledgment. What does that mean? Does it mean that taniwha will be holding up motorway bridges again? Does this deliberately write in requirements that the Environment Court must pay attention to this kind of spiritualist nonsense?

This is a secular society. It is appropriate to respect people’s religions as long as they do not attempt to use the force of law to impose them. What we have in this bill is a recital of some religious beliefs that just mean people like me who do not want to be afflicted by them are forced to deride them. We are forced to deride them because we do not know what the Environment Court is supposed to do with all this stuff. The provision goes on to state that it does not affect, and is not to be taken into account in, the exercise of any power, duty, or function by any person. What, then, does the first part mean when it states that the court must have regard to it? Why are we still, in 2005, writing law that does not mean what it states?

I ask United Future members why they are supporting a bill that contains this kind of mumbo-jumbo. What does United Future think of the injunction “Let your yea be yea and your nay be nay” when its members vote for something that has yes and no on one page? This is not just legislative candyfloss or tissue. This actually obliges New Zealanders to attack each other. The Environment Court is told it must have regard, so it puzzles over what regard it has to have. The Minister, exercising a discretion, is told that he has to have particular regard to something. I am not sure whether anyone has ever defined what different influence “particular regard” has from just “ordinary regard”—and these are words of statute.

Our judges will have to decide exactly what that means. On one page they are told to have regard, and on the next page the Government tries to have it the other way. If there is one thing we should have learnt out of the treaty grievance process, it is how dangerous it is to have New Zealanders set at each other’s throats by giving legal force to documents with bitterly contended meanings. It would have been perfectly acceptable, in my view, to have recorded these as the legends, myths, or beliefs of Ngāti Awa, but also to have stated that the sole purpose was to invite New Zealanders to be courteous—to have the sort of respect that any people owe to another not to confront them needlessly. Instead, one group of people is having theirs set out in statute. Then the Environment Court, the local authority, and the Historic Places Trust will all go through some kind of process where they will have to pretend to have regard to it, without being given any guidance as to what that means, other than being told it does not have the force of law.

The bill also goes on to state that no person or entity in considering any matter, or making any decision or recommendation under any statute, regulation, or bylaw, may give any greater or lesser weight to Ngāti Awa’s association with these areas than that person or entity would have given under the relevant statute if the acknowledgment had not been made. Is that stating that this is not worth the paper it is written on? Why has it been written? Are we really still giving Ngāti Awa bangles, beads, and blankets? Who is this supposed to fool? We get a lot of talk about maturity as a country and respecting diversity, but this is New Zealand’s Parliament telling itself that it can lie to itself, because on one part of the page we state “must have regard” and in the next part we are stating that it does not mean a thing.

So why did the bill not just state that this is to make a permanent record of the beliefs and the views that were once held? I doubt whether many Ngāti Awa even believe this any longer, but someone will make money out of asserting that they do. People will be encouraged to hold projects to ransom and to go along to object to people’s usage of land—probably public uses like landing ramps or mooring areas in water, or, on land, things that appear on the skyline, like windmills for wind power. Someone will be able to try to scrape a rent by resurrecting the so-called spiritual values that are reflected in this legislative nonsense.

I am very interested that we have had the Māori members of New Zealand First and National’s Māori spokespeople here, yet we have not heard a word in defence of any of this from anyone in the Labour Party. All those big, brave, bold people in the Labour Party’s Māori caucus have not joined in what is a genuine set of questions. For the first time, we have had Dr Mapp raising a set of questions, and I am absolutely delighted to hear the National Party raising those. I am delighted to see New Zealand First now putting its votes where its mouth has been for some time and voting against the meaningless word—or the sadly meaningful word—“principles”. But we have not heard a word of justification or explanation from any of the Māori members in the Labour Party. We have not heard anything from anyone in the “Christian party” explaining why those members are putting their votes behind this kind of animist animism. We have not heard anything about why United Future thinks that it is a good idea to support this.

I have to say, firstly, that I have the privilege of enjoying the support and advice of my Labour Māori caucus members in standing as the Minister in the chair in this important role. I respond to the member who just spoke by briefly saying that statutory acknowledgment does not give priority of right over consent but it does give an assurance of notification, and that links back to what I said in my earlier contribution. This is about ensuring that the historical, cultural relationship of the people to certain places is understood and therefore able to be taken proper notice of—

💬 Stephen Franks: It states: “have regard to”.

Yes, and indeed, they should “have regard to”.

💬 Stephen Franks: What does that mean?

Unlike the member I have much greater confidence in the decency of New Zealanders that if they understand, have regard to, and are aware of these issues, they actually want to get it right. I really do believe Kiwis want to get it right, want to be fair, want to be decent, and want to do what is right. This is simply a provision that ensures that unintended mistakes are not repeated in the future.

Those remarks by the Minister in the chair, the Hon Mark Burton, cannot go unchallenged. Going by what he is saying today, it is almost as if he simply does not understand what this legislation is about. He is saying that we should set out in legislation the idea that a particular group’s spiritual values should have legislative protection. That is what the bill states, I say to the Minister, and that is the reality of it. We do not do that for any other group. We do not do that for the Catholics, the Anglicans, or the Muslims.

Quite clearly, we have a history of respect in this nation.

💬 Hon Mita Ririnui: Tainui settlement, fisheries settlement—

That is actually incorrect, but I will come back to that. Prior to the dinner break the Minister drew out the point that the Ngāi Tahu legislation and, indeed, the Tainui legislation had references to nohoanga, particular properties, and so forth. That is not what we are discussing here.

National will be voting for this bill. We will be doing so because we support the idea of settlements. We do understand that Ngāti Awa have long and historic associations with particular places that should be noted in the legislation, but in essence those are property rights. Ngāti Awa will, of course, add their own cultural dimension to those property rights. That dimension does not require statutory protection.

The Government’s approach illustrates the fundamental contrast between our approach in National when we were doing settlements in the 1990s and the error of the current Government. We recognised the connection in the Ngāi Tahu legislation. Labour takes it further, because its legislation will entrench a belief system into legislation, and that is quite different. It is fundamentally different to entrench into legislation a belief system.

In a modern democracy there is simply no role or place for putting specific statutory recognition of a particular group’s beliefs into our legislation.

It is simply inappropriate. The reason why it is inappropriate is that one starts from the foundation that every person is created equal and has equal rights before the law. People have a right to their beliefs, and that is protected under the New Zealand Bill of Rights Act. That right is protected in the Treaty of Waitangi itself where it refers to the rights of British subjects. One of the inalienable rights of British subjects in 1840 was that their beliefs were to be respected. There was no necessity to entrench them into legislation.

I believe that the current approach of the Government to dress up—because ultimately that is what it is—the protection of particular property rights with the statutory recognitions of spiritual beliefs and headings in the bill such as “cultural redress”, will do harm. For the sake of apparently being inclusive, as Mr Mita Ririnui would have us believe, it actually ends up dividing people. It is one of the tragedies of this Government that it is simply unable to recognise that.

Has the Government not understood the tremendous reaction to Dr Brash’s speech at Ōrewa last year? That reaction was real and the Government knows it. Members opposite may scoff, but they know that that speech spontaneously struck a chord with the public. It was about the fundamental structure and values of our society in terms of equality of the law. The Government did try to respond. It created a Coordinating Minister, Race Relations. But when it comes to putting legislation in place, the Government still continues its old pattern, and that is most unfortunate. Because this bill is not the way to build unity in the country. I say by all means make settlements, by all means recognise the historic and traditional associations of indigenous people, but do not divide our society by elevating the spiritual beliefs of one particular group.

In the provisions relating to coastal tendering, the preferential rights are set out in a schedule appended to the Ngāti Awa deed of settlement. It may be that the Māori Affairs Committee, which considered this bill, had a good look at those preferential rights and it may be that they are entirely consistent with what is contemplated under the regime for aquaculture areas, as agreed by the Government last year. But I believe that the Ngāti Awa agreement was made well before that was contemplated. I do not know exactly how it will be done that the iwi gets a prior right, or pick, under this deed and under the deed of settlement, or how that fits in with the parallel rights created under the regime that accompanied the foreshore and seabed settlement.

If, as is stated under clause 120, the tender of Ngāti Awa, whose governance entity will presumably make these pitches, has a right to be treated as the most preferred tender by the Minister—if there is no tender or if the Minister would otherwise reject every tender—then it does seem that the interrelationship between this deed and the coastal marine area coverage of the foreshore and seabed arrangements ought to have been explained. I do not see anything that even touches on it. Nothing in the report from the select committee touches on it. There is a suggestion about Crown policy on overlapping claims, but I do not think that anyone has seen this as potentially overlapping claims. It seems like overlapping claims to me because of the arrangements that could well have people other than Ngāti Awa pitching for the same areas. I do not know whether they will have preferential rights, but there is nothing in the bill itself that indicates how competing preferential rights are to be dealt with.

The whole thing is wrong in principle. There was no reason for assigning 20 percent of aquaculture area to Māori. The principal concern I have about it is not that they get it, because it is a windfall anyway. When one is creating aquaculture rights one is creating valuable property rights, very sensibly, where none have existed before, and it does not matter hugely who they go to except that people should recognise them as a windfall. But what does matter is whether those property rights then get locked up and are not able to be dealt with freely by the owners. It does matter whether the aquaculture rights are article 2 property, for which there is an assurance of transferability and exclusive possession, or whether they are the kind of insulting property that is created by this bill—that is, the sort of property that is permanently afflicted with the kinds of restrictions that we find in the Fisheries Commission settlement arrangements, where people who may have lost all interest in fishing, or may have taken a strategic view that it had passed its peak, are nevertheless unable to shift to something better.

Some of the rights that are created under Part 4 are the sorts of rights that the treaty promised Māori they would not have. I cannot see, for example, how the nohoanga areas, the camping areas, will be exercised in, say, 30 or 40 years’ time, when the people who have been there for all time—the generations in that area—might be a tiny portion of the local community. They might be a very small portion even of the Māori population in the community. The exercise of this kind of right is likely simply to set them at odds with their neighbours, partly because, undoubtedly, there will be nepotism in the way it is organised. That is the way humans act. That is not something exclusive to Māori. If the temptation is there then it is used.

I want to take a brief call to talk about cultural redress. I make the point that cultural redress provisions recognise that the damage done historically was not merely economic. Requiring, by law, all New Zealanders to “have regard” for the cultural interests of another is a very sad indictment on us all. The lack of regard that necessitates these provisions is entrenched to such an extent that the law must become insistent. What we have is a law saying: “Stop, wait. Check out what is appropriate before you act.” to a nation that has previously blindly stumbled ahead making decisions that affect people whom we never intended to hurt or damage, or continuing practices that were offensive to people whom we never intended to offend. All that the law does is to start to put in place that brake.

I would like to believe that as we as a nation could become so familiar with putting on the brakes, with checking with each other about the way to move ahead on given issues, that such law would appear almost “foolish” common sense; and that we could become so familiar with working with each other that we would no longer need to check the law books to decide on how to proceed. So we are very supportive of cultural redress. It acknowledges the damage that was done and it takes some proactive steps to make sure we control ourselves more in that regard.

The question was put that the amendments set out on Supplementary Order Paper 329 in the name of the Hon Mark Burton to Part 4 be agreed to.

Amendments agreed to.