Ngti Awa Claims Settlement Bill

Part 5 is entitled “Commercial redress properties” and is essentially about the various transfers, and so forth. In fact, it is exactly what one would expect to be reflected in acknowledging breaches of article 2 of the treaty. Article 2 is fundamentally about property rights. Some of those property rights will have broader cultural significance to Ngāti Awa, and I have acknowledged that in my previous speeches, but said that indeed we should not make specific reference in legislation to beliefs. Those are the province of Ngāti Awa. On the other hand, the redress is a proper matter for legislation.

So in this part it is precisely that—simply a recording, by and large, of the types of properties that will be subject to redress, and a listing of them. They include such property as the Ōhope Beach Holiday Park land, for instance, that no doubt will then be subject to a lease to the operators of Ōhope Beach Holiday Park. Presumably it is not the intention of the Government to run roughshod over private property rights, or maybe it is—we will find out, I guess—and no doubt there will be other properties.

I note in clause 151 that there is a right of access on Crown forestry licences. The right of access has no effect on the rights of a licensee under a Crown forestry licence granted in relation to Ngāti Awa land. I have a question for the Minister. Clearly, there is a connection of that settlement to the central North Island forestry estate and I imagine that there will be claims by Ngāti Awa, along with other claimants, in relation to those lands. When we are debating those kinds of provisions one of the helpful innovations from Ministers, particularly the Minister who is in charge of the bill, as opposed to a Minister who is just sitting in, so to speak—in other words, a Minister who knows the subject well—is to take the first call to explain briefly the purposes of the part and what the Government of the day intends by the part.

💬 Jill Pettis: The Minister has been taking calls.

The Minister has not taken the first call to set out the rationale of the part. Therefore, what happens is that members from various parties end up having to raise questions. This is really a general comment about parliamentary procedure. Frankly, this Parliament and the public would be better served if the Standing Orders were modified so that at the beginning of each part in a debate the Minister took the first call to explain briefly the rationale, to initiate the debate. Of course, we would not expect the chief Government whip to have any idea about these kinds of things.

I ask the Minister what is meant by clause 151 and its relationship to the central North Island claim generally in regard to forests. That is essentially the National Party’s principal question in respect of Part 5.

I am taking an early call in response to the principle of the matter. Members who have been in the Chamber throughout the debate will acknowledge that I have taken a call on every part. I have tried to take a call to be helpful, useful, and responsive. If the member is suggesting that I am the fount of all knowledge, in advance of hearing what other members have to say, I take that as a great compliment but I am afraid that my natural humility will not allow me to accept it. I think it would be much more helpful for me to listen to what members have to say and to try to make some useful response. [Interruption]

The CHAIRPERSON (H V Ross Robertson): I call the Hon Georgina te Heuheu.

💬 Dr Wayne Mapp: I raise a point of order, Mr Speaker. I take exception to the comment made by the chief Government whip as I sat down. The member knows exactly what she said. I heard it over here. I will not dignify it by repeating it. I ask that she withdraw and apologise.

The CHAIRPERSON (H V Ross Robertson): The member knows what she said. I ask her to stand, withdraw, and apologise.

💬 Jill Pettis: I withdraw and apologise.

I am pleased to speak to Part 5, which deals with commercial redress. I want to raise the issue we dealt with in the Māori Affairs Committee. We received two submissions challenging the Crown’s decision to transfer 6,890 hectares of licensed Crown forest land in the Former Matahina A4 Block to Ngāti Awa. The committee requested advice, as we are bound to do when submitters bring serious issues to the committee. This referred to the issue of overlapping claims, which I raised with the Minister earlier. Those claims are rife in the central North Island, as the member Mita Ririnui knows. We both whakapapa into that area, so I think we have a reasonable knowledge of the dynamics that pertain to the central North Island, and of the concerns—rightly so—of those claimants still to come forward as they watch other claims being settled ahead of theirs. Some of those claims are way ahead of theirs.

On the issue of the Tūhoe interests in the Matahina lands, it was the subject of a case that went to the court. Suffice to say that the Crown’s—or the Government’s—attitude is to basically take into account the fact that there are other claims that might impinge on a particular block, or blocks, of land. The way that the Government, or the Crown, has seen fit to deal with it is to make a judgment as to whether there will still be sufficient land—in this case, licensed Crown forest land—to satisfy claims still to be dealt with, without holding up the right of Ngāti Awa, who have been through the whole process to have their claims settled.

💬 Hon Member: How does the member know about this?

I am very diligent at the select committee. So the issue of overlapping claims is a real issue.

On balance, the Office of Treaty Settlements gave us explanations that stand for the moment. They will suffice for the moment, but whether, as the Minister moves through the central North Island, the position of: “Well, there will always be other pieces of land that we can satisfy those claimants with, therefore we won’t hold up this set of claimants.”, can be sustained remains to be seen. I hope that it can, but I have some reservations.

Some of the land that comprised the blocks that were under challenge has been offered to Ngāti Awa, but some has also been left so that when other tribes—in this case, the Tūhoe tribe—come to conclude their settlements, the Government says there will be enough land to satisfy their claims, as well.

I think the issue will become more complex as the Minister wends his way through the central North Island. The tribes there, including my own and Mita Ririnui’s, are not about to see things go easily if they think there is a claim on them. The Minister needs to keep a clear eye on that matter.

Before I call the next member, there was an incident earlier when a member had to withdraw and apologise. The member was responding to an interjection. So, by way of advice to the Committee, I say to members that interjections are not permitted at all when they are directed at a member who does not have the call. In that case, members were interjecting on each other, and that can lead to disorder.

I want to take a call in respect of Part 5, and to continue with some of the concerns that have been expressed by the previous speaker, particularly in terms of the fact that this particular settlement will certainly affect a number of other cross-claimants. It is a real concern that in this bill we are proposing settlements that take in part of the assets for the area, yet we are not quite sure whether subsequent claimants will be satisfied with what is left to them—only time will tell. That is why New Zealand First is very specific in its demand to see clear definition in this bill.

With regard to clause 134—and I must say that I would be the first to admit that I do not have a legal background—I hope that the Minister will provide some clarification in terms of the concern that I have. Clause 134(1) states: “To give effect to section 8 of the Ngāti Awa deed of settlement, the Crown (acting through the Commissioner of Crown Lands) is authorised to do 1 or more of the following: (a) transfer the fee simple estate in a commercial redress property to the Ngāti Awa governance entity:”. How can the Crown facilitate that transfer of a fee simple without including clause 134(1)(b) in terms of assigning some formal document to confirm the transfer? I hope the Minister will give us some clarification.

If my assertions are correct, then quite clearly there is some lack of clarity in terms of what the clause intends. Again, I refer to the fact that we need to have clear definition and clarity so that this settlement, and the intention of this bill, is an enduring one and that we are not inviting further claims to the tribunal in respect of this settlement.

I rise for the ACT party to address Part 5 of the Ngāti Awa Claims Settlement Bill, “Commercial redress properties”. As I understand it, they are primarily motor-camp areas, parts of the Kāingaroa Forest, and some other less significant areas. I want to raise a question about the constitutional propriety of this. I know it is common for MPs to try to be a bit grandiloquent and claim that this constitutional breach is very easy, but what I am puzzled about is the provisions that state that transfers pursuant to the deed of settlement can be done notwithstanding any other law; that nothing in section 11 or Part 10 of the Resource Management Act applies; and that nothing in the local government legislation applies to the creation of roads or private ways in these areas.

ACT does not really care much if Māori are to be given the privilege, as they now are, of ignoring the de facto confiscations in the Resource Management Act. I quite like the idea that they may have negotiated the true rights in article 2 of the treaty—that is, genuine classical property rights without the Resource Management Act coming in to expropriate. However, I am concerned as to whether this Parliament is effectively passing over the right to legislate. I see that the Ngāti Awa deed of settlement is defined in clause 12 as including any amendment to the deed. When we read these together we are effectively saying that some parts of this deed that I have not seen—I imagine the select committee has seen it, but Parliament does not have the deed in front of it—waive statute, and, worse, if the Crown decides, it can change the deed with Ngāti Awa, and therefore waive statute in a different way than Parliament can possibly know at the moment.

This would be of no problem if the deed was fixed at today’s date. There is no constitutional problem there, and good on Ngāti Awa for getting exemption from the Resource Management Act. But when we know that this deed is variable, so that the deed referred to here is the deed from time to time, the deed as we might wake up tomorrow and decide to make it, Parliament is giving the Crown and Ngāti Awa a permanent right of exemption from a number of statutes. That is constitutionally offensive. I doubt whether anyone thought of that. I imagine that it is an oversight, but it is something the Minister should fix. The deed should be changeable, but not in a way that could change the effect of these exemptions that Māori are being given under this settlement.

Dr Mapp would be well advised to turn his powerful legal mind to this. Dr Mapp has looked at other areas here, but the effect of the exemptions from the Local Government Act 1974, the Conservation Act, and the Resource Management Act, combined with the power to change the deed, is quite a significant breach of the normal requirement that statute not be capable of modification by delegation. This is saying that that is the case.

The second point I want to get an explanation on is why the right of access under clause 147 runs with the land and binds all subsequent owners of Ngāti Awa land. That tells me that these rights of access will persist as a statutory matter even if Ngāti Awa has rid itself of all the land. Why was it not left to Ngāti Awa just to create easements? They could make an easement on their land, and then sell it subject to the easement. But what we have here is a statutory permanent right of access that may seriously affect the value of the land. Ngāti Awa will not be able to give assurances that this will not be a problem to the subsequent purchaser. This is a clog on the value for Ngāti Awa. This is treating Ngāti Awa as if they do not know their own minds and as if they cannot sort it out themselves. Why could the landowner not have done precisely what this provision purports to do?

Just to take the last point first, I assure the member that the waivers he referred to apply only to property transferred in terms of the transfer to Ngāti Awa. Beyond that, normal legislative requirements apply.

I want to pick up on the point made by Dr Mapp about clause 151 and reassure him that all existing property rights are protected, including any rights the Crown forest lessees have. In response to comments made by Georgina te Heuheu, the Waitangi Tribunal, the High Court, and the Court of Appeal have considered how cross-claims to central North Island forests were treated. These bodies found that the Crown’s approach was appropriate and consistent both with the treaty and with legal obligations.

It is a point worth making, because the member raised some important issues. I have no illusions about the scale and complexity of the challenge ahead with central North Island settlement. It is where I live and will one day retire and die, so it matters deeply to me in every sense. It is worth noting for the record that 95 percent of central North Island forest land is still potentially available for settlement. So the room to manoeuvre, one could argue, is still considerable in terms of ensuring there is the opportunity to reach fair settlement in the future.

The question was put that the amendments set out on Supplementary Order Paper 329 in the name of the Hon Mark Burton to Part 5 be agreed to.

Amendments agreed to.