Ngti Awa Claims Settlement Bill

Part 6 is about the Awanuiārangi title. It is an intriguing concept. I guess it comes out of the precedent set in the Tainui legislation, which has the Te Wherowhero title as well. We are creating a rather odd statutory situation here. As a general concept under our land law—be it under the Māori Land Court or the Land Transfer Act—one cannot register land ownership in an entity that in essence does not exist. One would normally have to vest it in a living person, an incorporation, a trust, or something of that nature. Here we are not doing that. I am informed by my colleague Georgina te Heuheu that the Awanuiārangi II title actually refers to the ancestor of Ngāti Awa. An intriguing point was raised earlier this evening by Mr Pita Paraone who asked what happened to Awanuiārangi I. I am advised that he was resident in, let us say, Hawaiki. It was his descendant—and I am relying on what the member told me—who founded Ngāti Awa and now we are vesting the lands in the ancestor of Ngāti Awa. National is not opposed to this. We did this for Tainui, but it is an unusual thing to do and I guess we should acknowledge that at this stage.

I previously spoke about the inappropriateness of making references to spiritual values in legislation because it infringes some of the founding principles of our democratic system. However, I would have to say that this does not do that. This is a recognition of Ngāti Awa organising their own ownership interests in the way they want. It does not impact on anyone else, so I see this as a legitimate, if nevertheless interesting, legal device that has been developed.

I draw the Committee’s attention to clause 160, and, indeed, my colleague may develop this idea a bit more comprehensively. It basically states that, in the event that land is owned under this title and is regarded as wāhi tapu, in no circumstances can there be any exploration for minerals by any other person. Presumably that would be a Crown minerals grant, for instance, for gold, silver, or oil. There is a group of minerals, as the Minister will well know, that are the property of the Crown and the Crown can grant licences to others to explore for those minerals. In this instance, under clause 160, that power will not exist. The Crown has made a special exception for Ngāti Awa so that they can exempt a portion of their land from this kind of exploration. It is a right that only they will have. Other New Zealanders will not have that right. I guess that is something that at the very least has to be questioned.

Again it comes back to the principle: why make special exceptions? Under the Resource Management Act or the Crown Minerals Act, clearly wāhi tapu would almost certainly be a good reason not to grant such a licence. That is how it would normally be dealt with in relation to the general public. One would not normally imagine that a mining licence would be granted over land with important historical significance for the nation at large, but under that legislation it is a general concept. Here we are making an absolute prohibition based on the ethnicity of this particular group. I have to question whether that is the right way to do things. It might seem a generous and reasonable gesture, but unfortunately it infringes against the principle of all of us being treated equally under the law with the same rights and duties under the law.

My colleague is of course correct when he says that we have seen these kinds of provisions before whereby an ancestor is named in the title. Although that may be unusual in the normal Western sense, Māori do not find it unusual at all, and that is clearly why we have it here. My understanding is that it is a recognition not only of the fact that Awanuiārangi II was the ancestor who came here but that his family was intimately connected and settled and resided in the lands now given this special title. So on the face of it, it seems a reasonable thing to do. Clearly, if Ngāti Awa see it as the right thing to do, then it ought to be supported. I agree with my colleague, in the sense that that is probably an unusual thing in the Western World, but we in New Zealand are pretty used to seeing that kind of thing become part and parcel of the fabric of our society. Although it is generally a worry to some, I guess, as Dr Mapp says, it does not affect anyone and it does give Ngāti Awa an opportunity to recognise the status, mana, and rangatiratanga of their ancestor.

In relation to clause 160, which my colleague thought I might make some comments on and which I now feel bound to, I will make my comments by way of a question. I ask the Minister whether he sees this clause as providing an exception that offers something over and above what one would accept as usual in the normal run of things. The clause appears to contain an absolute prohibition on any exploration activity, because the title of the area will be vested in Awanuiārangi II and the area will also be regarded as wāhi tapu. That is why it is given that status, but I do not know whether National would want to see that kind of thing become commonplace in settlements. As I say, perhaps the Minister might like to explain the rationale for that provision. It is not going to mean that National will not support it, but I think it is proper for New Zealanders, for those of the public who might be listening, to understand why these things are being done in the way they are.

On balance, I say that while Part 6 is a small part, it is an important part to Ngāti Awa. It gives them a chance to recognise in a more than extra way their esteemed ancestor. There is certainly precedent for doing that, although that precedent took place some years ago now. It does seem that that provision hurts no one but adds to the settlement.

I raise a point of order, Mr Chairperson. At the risk of seeming churlish, I wonder whether you could advise the Committee. I have a list of ministerial delegations only from August 2004. Could you please confirm to us that Mita Ririnui, who is sitting in the chair, is a Minister of the Crown. We are having a discussion over on this side of the Chamber, and we do not know.

The CHAIRPERSON (H V Ross Robertson): Yes. Mita Ririnui is the Hon Mita Ririnui, and he is a Minister of the Crown.

I want to make a few comments, particularly with regard to the rationale for putting property in the name of an ancestor. I can well understand the reason for that, particularly if one were wanting to ensure there was no likelihood of any future alienation of that property. But the bill also permits the agreed governance entity to act on behalf of that ancestor, so I wonder whether we do not include in the bill a provision for all property to be in the name of Awanuiārangi II. However, I appreciate that this has been the request of Ngāti Awa. I want to make clear that I understood what the honourable member Wayne Mapp said when he was advised that Te Rangihouhiri—or was it Awanuiārangi I?—was an ancestor who lived in Hawaiki. Which one was it—Awanuiārangi II or Te Rangihouhiri? [Interruption] Well, is it not strange that the one member who raised the issue, is not showing courtesy by way of explanation as to what happened to Rangihouhiri I? That is the first point.

Secondly, I ask why it is that 20 years ago it was quite acceptable to have an ancestor who lived in Hawaiki included in legislation made by this Parliament. All of a sudden, 20 years later, it is not acceptable.

💬 Stephen Franks: It’s pure xenophobia. That’s all.

It may be so—whatever the member may think. There has to be some consistency, and that is why New Zealand First since the debate on Part 2 has risen to object to those parts we have discussed. There has to be some certainty in terms of the definition of the words and phrases we use. If there is no certainty as to what they mean, then we are certainly condemning ourselves to revisit this whole issue sometime in the near future.

During the course of the debate on this bill we have an opportunity to ensure that we do not have to revisit this issue, so I would like to make that point in discussing this part.

I stand briefly to respond to some of the matters that have arisen. I hope that the National Party’s senior whip, Simon Power, is satisfied with the explanation given by the Chairperson. In relation to the issue raised by Georgina te Heuheu earlier on during her speech, with regard to clause 160, I think that the matter did come up at the Māori Affairs Committee, but she may have forgotten the explanation that was given at the time. The provision about the sites referred to in the bill in terms of the Crown Minerals Act applies only to those areas of very, very high significance to Ngāti Awa, and it sets in place a protocol for discussion and consultation before any exploratory work takes place. That was explained in detail to us at the select committee in Whakatāne.

In response to Mr Paraone’s issue regarding Awanuiārangi II, Ngāti Awa have strong whakapapa as do Ngāpuhi, Ngāti Wai, Ngāti Hine, and all iwi around the country. Ngāti Awa make particular reference to Awanuiārangi II because much of the area around central Whakatāne, subject to the claim, is where his estate was. This bill does not set a precedent for any future claims, because its title, the Ngāti Awa Claims Settlement Bill, applies only to Ngāti Awa. If there are some variances in other bills, particularly in relation to a claimant group, I am sure that Mr Brownlee would be more than happy to explain how that works. I hope that that is a satisfactory explanation in response to the issues raised.

I am a little disappointed that the honourable Minister Mita Ririnui has already spoken, because I fear that he will not be inclined to take another call to answer some more questions.

I am a bit baffled by Part 6. It seems to me that it has a very broad definition of the land that it can apply to. It means each cultural redress property—and I see the schedule of those. I cannot tell from the schedule whether they are all properties that will actually be in the ownership of the Ngāti Awa governance entity. I see the officials nodding—that answers one concern. It looked to me as if otherwise there might have been the ability to create protected rights over someone else’s property.

The second point is that while the ability to register the Ngāti Awa governance entity land is in the name of Awanuiārangi II, it looks as if it is protecting a particular hapū’s interest, which I imagine it was intended for; I am not sure—

💬 Dr Wayne Mapp: It’s the whole of Ngāti Awa.

It is the whole of Ngāti Awa, is it? I see. So what this is really saying is that the whole of the Ngāti Awa land can be given protection against prospecting.

💬 Dr Wayne Mapp: If it’s wāhi tapu.

Well, it is not just whether it is regarded as wāhi tapu, because the areas that can be included will be Ōhope Beach Holiday Park or Whakatāne airport, and all the commercial redress land, which would be vast areas of forest, I imagine. I am just not sure. We have not seen an explanation. No one has explained why such a vast area can be arbitrarily made exempt from the normal Crown Minerals Act right of access. Again, I am not familiar with that Act, but it seems to say that they cannot carry out minimum impact activity. Is there other activity that they could carry out that is not protected? If so, what is the purpose of clause 160, because this seems to contemplate that cultural redress land; commercial redress land, which could be a lot of forest; Ōhope Beach Holiday Park; and Whakatāne airport all can be protected against minimum impact prospecting, as I understand it would be. Would that include flyovers, for example, towing a magnetometer in a helicopter? I would imagine that it is very hard to know, if one is doing that kind of mineral prospecting, whether one has even infringed this section.

I am a little puzzled. I would be quite pleased to have an explanation as to why this benefit covers only the land that ends up being stuck in the name of the revered ancestor, and why it does not cover all the Ngāti Awa properties, when Ngāti Awa could make it cover all its properties simply by putting it all in the name of the revered ancestor. In other words, if it was to be something members of Ngāti Awa could do—effectively have their own private exclusion from the Crown Minerals Act—why has it been hidden back in this obscure clause, clause 160, as something that could occur simply by a unilateral reregistration in the name of the revered ancestor?

There is no procedure here for testing whether a decision to regard something as wāhi tapu is justified. Maybe the courts would imply some sort of reasonableness measure, but it does look again as if this provision might not have been properly considered, and that people might not have been aware of just how broad an area it could cover or had it in mind that it covered only a few of the special cultural redress properties. It certainly covers an awful lot more than that. I hope the Minister is able to explain it.