Ngāti Tuwharetoa (Bay of Plenty) Claims Settlement Bill

I look forward to making a contribution during the Committee stage on the Ngāti Tuwharetoa (Bay of Plenty) Claims Settlement Bill. The Committee will recall that there has been some debate at various points over different translations with respect to the preamble, and the like. In fact, a reasonably prolonged discussion was held in the Māori Affairs Committee on that exact point. That is why we see at this point a reasonably large portion of the preamble having been struck out. This is a portion that is largely contained in te reo. It goes on for some pages. Not until we get to page 21 of the bill do we find the new, unanimous preamble to be contained in the legislation. I do not profess to be an expert in matters Māori, but it seems to me that we as a Parliament have worked our way through, both in this Chamber and outside it, to ensure that a Māori version of the preamble appears together with its English translation. The portion of the preamble that refers to the conflict in the Eastern Bay of Plenty is contained on page 33, some 12 pages on from the start.

I welcome the arrival of Georgina te Heuheu to the Chamber to take a call on matters relating to the conflict in the Eastern Bay of Plenty. I am sure that any contribution that she and Dr Mapp will make will dwarf my small contribution in this process.

There is no doubt that I am in a position to signal National’s ongoing support of this legislation, but we will, during the Committee stage, be raising some issues from time to time that have captured the imagination and the attention of those in the National Party who sat on the Māori Affairs Committee. With that short introduction, I welcome the contribution to follow by Georgina te Heuheu.

I am very pleased to follow on from my colleague, and contrary to his suggesting that this will somehow be way above what he has suggested, that, of course, is quite wrong. In the National Party caucus we are all committed to the resolution of historic grievances, and so each and every one of us basically—

💬 Simon Power: Who was that member who was known for doing all the work?

That is right, Douglas Graham basically paved the way in this area. He formulated and developed a treaty settlement framework that has stood the test of time, and but for this Government with its tendency to push the boundaries further than what the New Zealand public really want, that model is basically in place here in the bill before us today.

As I say, we support this debate, as we will be supporting the passage of the bill. Two or three issues arose during our consideration of the bill, but by and large one of the issues that caused quite major concern arose in one of the schedules, in which the Ngāti Tūwharetoa Bay of Plenty people wanted to have their association with the geothermal resource recorded in the bill. Fortunately the Māori Affairs Committee, as a whole, decided that that probably was not appropriate—and I will come to the reasons for that in a minute—and that this was to be a new schedule. It is now no longer in the bill, because what the claimant tribe wanted can be adequately accommodated in the deed of settlement.

The reason that this bill, I suppose, caused a unique difference was that Ngāti Tūwharetoa Bay of Plenty is one part of the total Ngāti Tūwharetoa tribe. I am Ngāti Tūwharetoa and I hail from the centre of the North Island, which is often referred to as Ngāti Tuwharetoa, the principal part of the tribe. This issue has not arisen in any settlement that we have had to deal with before whereby one has the same stories applying to both ends of the tribe, but clearly sometimes the versions do not always coincide. The other issue is that as much as Ngāti Tūwharetoa Bay of Plenty may have wanted to tell the main Ngāti Tūwharetoa story and have that put into legislation, it was felt by the select committee, and by National in particular, that that might pre-empt the way in which claims were settled when it comes to the settlement of the Tūwharetoa claims where I hail from, and there was no reason at all to be pre-empting anything that might be done in respect of any subsequent settlement.

So that was one issue, and I certainly will talk on that in more detail as we go on with the Committee debate. Another issue arose relative to the geothermal resource itself. We had submissions from the Pukaki Trust in the Bay of Plenty, which will be looking to do its own settlement. It actually owns a piece of land in which the geothermal resource sits. The trust had some very clear objection to Ngāti Tūwharetoa Bay of Plenty being given a statutory acknowledgment over that resource, particularly in so far as the resource sits on land that the trust owns. I think that it does, in a way, highlight a problem that may or may not arise in the future, and which the Government should give some attention to. It is that, essentially, while a group may indeed rightly lay claim to a particular resource in terms of kaitiakitanga, or sense of stewardship over that resource, the reality is that it will be the case that others within the same rohe, or boundary, will also be able to lay a similar claim.

Where neither of those groups has an ownership stake in the land, possibly no problem arises, but when one of them actually owns the land through which the resource runs, then clearly it is a problem. If I own a block of land and there is a resource—in this case, a geothermal resource—sitting plonk in the middle, and some other group, not my tribe, says: “Well, we’ve got a stewardship right, or a cultural association with that resource, we want that recognised by way of a statutory acknowledgment.”, I would then say: “Hang on, it’s sitting on my land.” How does that sit? We had some discussion on this. We were assured that no one particular group is pre-empted from also seeking a statutory acknowledgment over a particular resource, a particular site, or a piece of land, just because another group already has one. That is what we are told. We have to have faith, I suppose. I do not know what will happen if, one day, an issue arises and we find that the statutory acknowledgment granted to one group somehow pre-empts the other group from also being able to raise his or her particular interest in the resource, as well.

So that was another issue that has been dealt with. As usual we had the issue around doubts about sufficient mandate and doubts about sufficient agreement on the deed of settlement itself. National, and I think New Zealand First as well, regularly raise the issue of how much efficacy there is in the support of a people for a settlement when one is not getting what one might say would be optimum buy-in, and that would be at least above 50 percent. The long-term issue with this problem is that none of us would want to see any of these settlements revisited at some future date because some section of a tribe could come back later and say: “Well look, there was only a 48 percent buy-in to the settlement, and that wasn’t us, we’re part of the balance of the tribe that didn’t agree.”

So I implore the Minister to be conscious of this issue and to make sure the Office of Treaty Settlements is doing everything it can to ensure increased buy-in, both for mandating and for ratification of the Government’s entity and, particularly, for deeds of settlement. Because what we all want to be certain of, as parliamentarians, is that once a settlement is completed there are no legitimate grounds for bringing it back to the House.

Other issues that were raised when we were considering the bill during the whole select committee process were things like the fact we are now translating these settlement bills and having quite a considerable amount of legislation in te reo. That in itself adds a focus for debate, but the issue we want to be sure of is that the more te reo is used in legislation, the more care is taken by those concerned with putting true meanings into the legislation to really ensure that the Māori matches the English.

I stand on behalf of New Zealand First—which, as I have said before and will say again, is the only non - politically aligned party in this House—to speak on this bill in the Committee stage. I also want to take the opportunity to thank my whip for giving me this time, because I know all the people who are caught up in the Auckland gridlock will be listening to this debate. Mrs Rene Peach, who lives in Cambridge, will be listening as well, and I would just like to say tēnā koutou.

I want to reiterate our position with regard to the inclusion of the words “the principles of the Treaty of Waitangi”, particularly where they are set out in clause 14(a)(i)(A) of this bill. During the second reading I indicated on behalf of the New Zealand First members our support for this bill in spite of the inclusion of the words that I have just mentioned. I should say that that actually caused some surprise to both officials and some members in the House at the time.

Having said that, I just want to talk on the preamble, and in particular on Supplementary Order Paper 367 sponsored by the Minister in the chair, the Hon Mark Burton, in terms of an amendment to recital (32) of the bill. The Government-sponsored Supplementary Order Paper seeks an amendment to the English text of that recital. On perusal of the Māori text, I note that no amendment to it is sought. I am sure that that does not mean the Māori text is right, but in order to ensure there is a true translation of the English text, I have proposed a Supplementary Order Paper. This may be seen to be a bit premature, given that the Supplementary Order Paper has not been put before the Committee for consideration. However, I seek that in recital (32) of the Māori text, the words “i waenga te rohe o Kawerau” be substituted for the words “ki Kawerau”.

Some people may say that that is being just too particular, but I think it is important not only for this Parliament but for this nation that the translations of the two official languages should match. I suspect that in the future, students of the language will see legislation that has been passed in the Māori language as a learning resource. So I would like to think that the Committee will give consideration to that proposal. Although I would like to see the whole bill written in Māori, given some of the occurrences in the recent past when the Māori language has been introduced into previous bills, I think this is a small but very important step, not only for this Parliament but also for our country, in terms of recognising the tangata whenua language of New Zealand. It is very interesting to note, as I look across at the Government benches, that I am not sure whether there is anyone sitting there who has the ability to speak or understand Māori. It is important that I make these points, because when future bills of a similar nature come before the House we will be asking that the Māori language be used. Hopefully it will be used more fully than it has been in this bill, so that there will be no doubt in the minds of all New Zealanders that we are a country that recognises and utilises the two official languages—that is, Māori and English.

The preamble contains a description of the Compensation Court process that was established to deal with the return to Tūwharetoa of wrongly confiscated land. The preamble talks about how approximately 87,000 acres of confiscated land was divided into blocks. The Compensation Court, after hearing various evidence, decided to return some of that land. It did so by returning a couple of blocks. One block was given to 10 people and one block was given to 13 people. Those awards were made on the basis that those people were the rightful owners and were not implicated in the so-called rebellion. At the time, Tūwharetoa considered that the returned land was to be held in trust for the iwi as a whole. But because of the nature of the Compensation Court—the cultural milieu out of which it was developed—there was in fact never any mention of those people holding the land in trust, and those blocks were granted to those 10 and 13 people respectively as individual owners.

The preamble goes on to describe how difficult that was and what that meant for the iwi. In fact, it meant the further loss of the land by placing the land, effectively, under individual ownership rather than collective ownership, and enabling it to be on-sold. One of the signals that that shows for all of us is that when those processes by which restitution is made are developed in isolation from the tangata whenua for whom the restitution is designed, or when the processes are developed in isolation from the tikanga and the values of the people affected, huge mistakes are made. Part of making the mistake is identifying and picking winners and leaving losers. The Compensation Court process established in 1863 was a clear and classic case of the Crown establishing a process without tikanga and consultation, then leaving Māori bereft when they were supposed to be restored.

What I would like to see and be made clear in this Committee tonight is the fact that we are, again, seeing that exact same process. The process for restitution of wrongs done in the past, through Crown settlements and via the Office of Treaty Settlements, is again a process that has been established within the cultural milieu of the Government of the time. It does not involve, and never has involved, any real consultation with the tangata whenua. It is not based on tikanga; it is based primarily on the policy of Governments and the desires and needs of Governments. It is not based on the real justice that should be attributed to the tangata whenua, or to the mana whenua who have been wronged, whose land has been taken wrongly, and who deserve to have justice restored to them. It is just one example of how the same process is again occurring here in the Tūwharetoa bill.

I refer now to submitters who came to the Māori Affairs Committee, such as the Ngāti Rangitihi and their story about their attempts to do the best for their own people and to find a way to develop and progress their claims through the mechanisms available to them—established by Governments over time and supported by this Government—like the Waitangi Tribunal and the claims process. I refer to their efforts to ensure that the land within their rohe is protected from the settlements that are occurring around them, particularly that of Ngāti Awa and of Tūwharetoa as well. The Crown, through its settlement process, has picked Tūwharetoa as a winner in this regard over this area of land, so that Ngāti Rangitihi have been unable to secure funding even for their research. Ngāti Rangitihi told the select committee that Ngāti Awa had received $3 million and Tūwharetoa $1.5 million to help with the research of their claims, yet they were entitled only to $200 per witness to help with witness costs, and no money to help them with their research.

If Ngāti Rangitihi cannot get support even to research their claim, then their losses and the injustice done to them as an iwi within that area cannot be properly dealt with through the Government’s own processes. Therefore, they are being robbed of their capacity, and of their access to the justice system through the settlement process and through the process of restitution and restoration of lands to the iwi from whom it was taken. We are again seeing Government process being used to pick winners and identify losers, which leaves those who are not yet ready to claim, those who cannot yet secure funding yet to prepare research in order to pursue their claims, and those who are choosing alternative paths to settlement, again to be without justice.

I was going to speak on the preamble and perhaps the philosophy that underlies the preamble, because it has now become pervasive. It really speaks about the attitudes that the Crown has towards Māori, and that, perhaps, some Māori might have to themselves and their position in life.

Recital (33) of the preamble refers to the loss of traditional lands through confiscation, Crown purchases, etc., and includes, and I quote directly: “such as the coast and the swamp that traditionally provided food, medicine, and shelter.” Further on, recital (40) refers to the fact that lands had been drained—the drainage of the Rangitaiki wetlands. That seems to imply that Māori are a Stone Age people—that they were at the time of confiscation, and are now. We clearly know that that is truly absurd. Yet the preamble almost envisages that. Surely, we would recognise—and, given that we are lawmakers here, legislation and preambles ought to be careful about this—that, just as anyone who is a landowner in the modern world seeks to develop the land for economic advantage where it is appropriate and desirable, we would reasonably expect Māori to have done the same themselves.

For instance, could it really be considered a loss today that people have lost the use of a swamp for food, medicine, and shelter? People do not live today in raupō huts made from raupō gathered from a swamp, neither do they primarily use swamps for food. In fact, what happened right throughout the Hauraki Plains, the Eastern Bay of Plenty, and many other parts of New Zealand is that those wetlands were reclaimed—admittedly, not by the Māori owners from whom they were confiscated, but by subsequent settlers—and turned into productive dairy farms, which is arguably one of the world’s most profitable uses of such lands. Māori who own such lands do the same themselves; one has only to look at Northland, around Ruawai, to see the reality of that. We should not make references in these kinds of preambles as if Māori were still a Stone Age people and lamented the loss of resources that a Stone Age people would use. Let us recognise the benefits of developments. In fact, the ILO conventions that I know the Green Party is very fond of talk about the right of development. Development does actually mean using new technology. Similarly with the Hui Taumata; it would have had exactly the same values.

I say to the Government that when it is preparing its preambles let us not have a rose-tinted approach to a past when people lived in a state of nature—if one will—but let us talk about how people really live and how they want to live. Let us talk about aspiration; that would be a lot more relevant and, dare I say it, would have a lot more credibility amongst the wider community. When the public read about this kind of thing in our legislation—and they do; it gets out there, generally—frankly, it causes frustration. It causes people to wonder why we are so focused on the past, as if it was frozen, rather than looking forward to development.

I shall take a short call to respond briefly to a number of points made by members.

Firstly, Dr Mapp’s comment about the preamble and the historical account missed the point that this is an agreed historical account of what was. It records what was lost to the people at the time, and arguably records, therefore, in a sense, his point that the opportunity for such development that he talked about was lost to those people as a consequence. So it is not a lamenting of that, in the sense of wanting to go back to it, but, rather, simply a matter of recording clearly that that is the nature of what was lost.

In response to the member from the Green Party who talked about access to funding, I think the matter she raised is far more complex than she said, in terms of some of the issues within the group of people concerned. But it is important to note that the funding she referred to was not direct Government funding; it was Crown Forestry Rental Trust funding, and that does put a slightly different complexion on it.

To go back to the comments from the first member who spoke, the Hon Georgina te Heuheu, I have to comment on two points. Firstly, on the encouragement of optimum participation and mandating, I absolutely agree that through each of the participatory processes everything that can be done should be done to encourage participation, but we cannot require that people exercise their choice. As legislators, we must be confident that the opportunity did exist genuinely, easily, and freely for those who are eligible to participate in votes and to have their opinion recorded and heard.

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

In relation to the preamble, I wanted to take a call to support my colleague Dr Wayne Mapp in so far as he urged that the Government recognise that the preamble was largely the wish of the iwi concerned, which is what I took the Minister to say.

I still think that Dr Mapp had a very valid point. I know, from my short experience as an Associate Minister in charge of Treaty of Waitangi Negotiations to the Hon Sir Doug Graham, that the preamble is extremely important to a claimant tribe, for the reason that these settlements are important. For nearly 140 years, for some of them, they have carried this hurt, because that is the way a lot of them see it. They suffered this hurt so long ago and have tried for generations to get redress to find some way of securing justice. Basically they see the preamble as giving credence to the hurt they have carried for many years, so it is understandable that all preambles will, first of all, state the history as has been recounted by the claimant tribe, but also will probably reflect a lot of the hurt and the sense of injustice that most tribes have carried since the 1860s. Of course, that is why we have the preambles couched in the way they are.

That is understandable, and I appreciate why tribes would want to have their preamble couched in the terms that they normally are. But in support of my colleague Dr Mapp, it does not mean that the Crown needs to buy into that mode. While it is proper for the Crown, on behalf of New Zealanders, to acknowledge the injustice, because that is what these claims are about—an injustice to sectors of our community; a longstanding injustice to be rectified—none the less I think there is a point to be made, that the Crown needs to try to strike a balance and that there is also an aspirational component to these settlements, because that is what they are about, too.

Hopefully settlement legislation brings grievances to an end, but it also signals the start of a better future. If, as my colleague Dr Mapp has signalled, he does not see that necessarily in the preamble, then I think that is an issue for the Minister in charge of Treaty of Waitangi Negotiations and the Minister in the chair, Mita Ririnui, to bear in mind. In the future they should see whether there is a way of stating the history and imparting the deep sense of injustice that particular tribes—in this case Ngāti Tūwharetoa Bay of Plenty—feel in relation to what happened to them and to their ancestors so long ago, couched in terms that we all genuinely hope will signal that this settlement is the start of movement forward. We should not look like we are just mired in the past, because of course nobody is—certainly not members in this Parliament. We in the Parliament, more than anybody, need to ensure that these settlements project a forward-looking view, that they lay the basis for forward momentum, for acknowledging and giving credence to the hurt that has been suffered by a particular tribe, but also signal our understanding—an aspirational signal—that things will be better and, indeed, things will be different because what we are doing in this settlement is giving a basis on which to move forward.

I found very interesting the thoughtful comments—some of the most thoughtful I have heard on this topic—made by the Hon Georgina te Heuheu and Dr Mapp, in looking seriously at what many people have regarded as mere formalities. Part 1 is the part with the text of the acknowledgments, the historical recital, and I was pleased to see that those members took it seriously. I think future generations may well look at this part—and look at it in absolute amazement that we could have a long recital of history, going back 140-odd years, and that the Crown on behalf of the people of New Zealand is apologising for things that can scarcely be known and for wrongs that are done daily, today.

I draw attention to clause 8(3)(f), in which there is an apology, effectively, for eroding “the traditional social structures, mana, and rangatiratanga of Ngāti Tuwharetoa”, and for failing to “protect Ngāti Tuwharetoa … from the impact of these actions”—presumably, that means eroding the social structures, mana or pride, and rangatiratanga of Ngāti Tūwharetoa. Well, there is nothing whatsoever in the treaty that says that social structures, mana, and rangatiratanga will not be eroded.

The treaty said that the protections of English property law would be given to property, and those were rights that Māori did not have. Those were concepts of ownership that Māori did not have. It is perfectly in order for the Crown to apologise for confiscating land without compensation, for taking rights by fraud, or for punishing people who had not rebelled and giving their land away to others. That is perfectly in order, but for this Parliament now to be turning round and grovelling because traditional social structures have been eroded is something the ACT party simply will not be party to.

Traditional social structures may be good, they may be bad; they simply are. There will be parts that we all regret to see gone. I regret the loss of the sense of community that I grew up with before television, but I do not expect any Government to start apologising for the erosion of the institutions of civil society that occurred because the State started a television service that meant people stayed at home instead of going out. I do not see any reason why the anglicisation of property rights, which of course did erode traditional society and the power of chiefs, is something to apologise for. In just about every place where that has not happened, traditional society has eroded just as corruptly.

Indeed, when the treaty was signed, the missionaries would have been very well aware, from the crusading investigative journalism of The Times of London, of just what the traditional power of the chiefs had done in Scotland. Indeed, I think that article 2 of the treaty was a direct reflection of concern about the abuse of chiefly power that took for itself the value that should have been available for all ordinary people. The traditional social structure did not protect many of the people, who had none of those so-called erosions, when it became a new market economy.

I first acknowledge the contribution made by National member the Hon Georgina te Heuheu, and her comments in relation to this bill that it is a positive step forward for Tūwharetoa ki Kawerau. I also remind the previous speaker, Mr Stephen Franks, that the Crown is not apologising for the actions he referred to, but for the fact that by its actions the Crown was in breach of the Treaty of Waitangi—hence the apology.

I stand also to respond to the amendment tabled by New Zealand First member Pita Paraone. He proposes to amend the preamble by removing the words “ki Kawerau” and adding the words “i waenga te rohe o Kawerau”. That is what we might call a semantic matter, in that the English translation means very much the same thing. Why would we add six words when one is sufficient? The reference to Ngāti Tūwharetoa ki Kawerau is the preferred wording in the description of that particular claimant group and, to that end, the Government will not be supporting the amendment.

I am glad that the Minister in the chair, Mita Ririnui, took a call to respond. The argument he made, though, that the Crown is not apologising for eroding traditional structures, is not consistent with the wording of clause 8(3)(f), which states: “these actions”—referring to the individualisation of title and loss of the use of swamps and land, etc.—“eroded the traditional social structures, … The Crown failed to adequately protect Ngāti Tuwharetoa … from the impact of these actions and this was a breach of the Treaty of Waitangi … and its principles.” My questions are: how, where—and what principles?

There is no definition of those principles. They were weasel words used by this House in a moment of infamy, and subsequently the courts have had to try to give them some meaning. The courts have struggled. We have no authoritative statement of what those so-called principles are, yet in this provision we see the Crown acknowledging having eroded social structures, etc., and then in clause 10 apologising for the matters it has acknowledged.

Clause 10(4) states: “The Crown profoundly regrets its failure to acknowledge the mana and rangatiratanga of Ngāti Tuwharetoa (Bay of Plenty).” Clause 10(5) states that the Crown “seeks to atone for these wrongs and to begin the process of healing …”. Clause 10(2) states: “The Crown profoundly regrets and unreservedly apologises for the breaches of the Treaty of Waitangi … and its principles.”

None of us know what those principles are. The Prime Minister, when directly requested, has never managed to tell us what those principles are. No speaker from the Government has ever told us exactly what principle says that the traditional social structures of Māori should not be eroded. For all peoples, traditional social structures evolve. Erosion is a way of talking about it pejoratively, but evolution is the action of every human social structure.

Indeed, I suggest that if the Government offered Ngāti Tūwharetoa who are living in the Bay of Plenty now an opportunity to exchange their position for what they had then, very few would take it up. Who would want to be subject to a traditional social structure in which slavery had only just gone? Who would want to be subject to a traditional social structure whereby the ability to utilise land did not have the reforms or efforts that Sir Apirana Ngata brought to it in order to make collective landholding economically worthwhile? It took a great deal of erosion—or evolution—in traditional social structures to get to the position where people could be confident even that they would get to harvest a crop they had sowed.

I think it is a disgrace that this Committee is sitting here tugging its forelock, and asking where it can sign and when it will vote, when those apologies are historical nonsense and are for conduct that has nothing whatsoever to do with the treaty. If that apology had been for the fraudulent procuring of land, for the wrongful punishment of people for rebellions they were not involved in, or simply for collective punishments when English law required that people were found guilty of individual crimes, then it would be something the ACT party could support.

Instead, in clause 10(3) we have an apology for “the cumulative effect of its actions over the generations, which have had a damaging effect on the welfare, economy, environment, and development of Ngāti Tuwharetoa …”. What blithering nonsense! The damaging effect that would have been the lot of Ngāti Tūwharetoa if land had not been individualised, if swamps had not been cleared, and if people had not been able to participate in the export economy, would have been far more profound.

For New Zealand First to have the ability to trumpet its opposition to the so-called principles, and then for us to come across a bill like this that has this Parliament apologising for wrongs we cannot define, and for actions we should be applauding in many cases rather than rejecting, is to say that this country is lying to itself.

I move, That the question be now put.

Motion agreed to.

The question was put that the following amendment in the name of Pita Paraone to recital (32) of the Māori text be agreed to:

to omit the words “ki Kawerau”, and substitute the words “i waenga te rohe o Kawerau”.