Ngāti Tuwharetoa (Bay of Plenty) Claims Settlement Bill

Part 1 outlines the purpose of the bill, which is essentially to record the acknowledgments and apology given by the Crown to Ngāti Tūwharetoa Bay of Plenty in the deed of settlement. It also gives effect to certain provisions of the deed of settlement signed between Ngāti Tūwharetoa Bay of Plenty and the Crown in respect of historical claims. In so far as it gives the outline of the bill, Part 1 signals that Part 3 will provide that the settlement of the claims of Ngāti Tūwharetoa Bay of Plenty is final, and deals with related issues. It is important for the members of the public who are listening to know that the objective of settlement legislation is always to make sure that the settlement of the historic injustice that has been suffered by any one particular tribe is regarded as being full and final for the matters that are dealt with in the legislation.

Clauses 7 and 8 set out both in Māori and in English the acknowledgments to Ngāti Tūwharetoa Bay of Plenty in respect of their grievances. This House should never underestimate the importance of this part of any settlement legislation to the tribe in question, particularly when a tribe has suffered raupatu, or confiscation, at the hands of the Crown for standing up for hearth and home, so to speak. Those people who are of English extraction, and I am one of them as well, will understand clearly what that means. There is an understanding that the hearth and home are sacrosanct to the family, and that is why I think those confiscations were such an unhappy time in our history. In essence the tribes were basically standing up for no more than their hearth and their home. In other words, they were saying: “This is my home. I have a right to stand and protect it.”

When the Crown acknowledges and apologises for unlawful confiscations it is an important matter for the tribe concerned. Although much is made of the treaty grievance gravy train and the money that is tied up in settlements, members must believe that a public apology set in legislation is a huge thing for tribes, and in this case it will be no less so for Ngāti Tūwharetoa Bay of Plenty. It is basically a recognition by the Crown of the struggles of the ancestors of Ngāti Tūwharetoa Bay of Plenty. It states that “The Crown profoundly regrets and unreservedly apologises for the breaches of the Treaty of Waitangi (Te Tiriti o Waitangi)”, and particularly for the confiscation of Ngāti Tūwharetoa Bay of Plenty lands and for the cumulative effect of those actions over the generations.

I was listening to the member for ACT, Stephen Franks. Māori society was built upon the ownership of land—tribal ownership. Once that was taken away, there was little chance for the societal structures to remain.

I will take just a brief call on Part 1 of the Ngāti Tuwharetoa (Bay of Plenty) Claims Settlement Bill, because it relates to the apology. In a way, I want to counter the speech made by Mr Franks, who was concerned that the Crown was apologising merely for the erosion over time of traditional structures that may have changed anyway, as traditional structures do when societies progress and move on.

However, the nature of this apology is that it is based on a specific moment in history when a group of people were traumatised through land confiscation and an accusation of collective guilt. At that point in time a process of the erosion of traditional structures began, which can be dated from a traumatic event for which the Crown now chooses to apologise—and rightly so. I think it is wrong somehow to water down the very essence of this apology, by saying that that erosion was some sort of natural process that could have occurred over time anyhow because traditional structures in society do change. That is not what we are dealing with here; the apology is about a traumatic event that happened to those people, from which we can now date a process of erosion.

That process could have happened in a different way and in a different manner. Societies do change, cultures do change, but that is not what is being apologised for here. The apology is for the fact that the people in that group were required to make changes and to have their traditional structures eroded through a traumatic event imposed on them by other people. I think we need to remain supportive of this aspect of the legislation.

I turn to the apologies and acknowledgments set out in Part 1 of the Ngāti Tuwharetoa (Bay of Plenty) Claims Settlement Bill, and in particular to the text of the acknowledgments in English. Clause 8(3) states that the Crown acknowledges that the return of land to individuals rather than to iwi and hapū was a breach of its obligations and caused harm. In particular, clause 8(3)(e) states: “This was not consistent with customary tenure and made those lands more susceptible to partition and alienation;”.

I would suggest that in many circumstances—not all circumstances, but in many—the collective ownership of land, without variation, has caused serious problems. It is difficult in a modern economy for people to advance their interests if all their property is owned collectively. The reality is that in the modern economy people do not act as iwi or hapū, to a marked extent. By and large, individuals are responsible for their own economic welfare. I believe that the Hui Taumata 2005 recognised that by putting so much stress on the advancement of skills—skills that are acquired by individuals. People have to study for themselves in order to gain an education.

When that theory is applied also to land, we are aware that farms are not farmed by large groups; they are farmed by small groups of people—typically individual families. That is why the huge strength of the New Zealand agricultural base has been the family farm. Notwithstanding the fact that there has been an increase in the size of farms, the family farm is still the building block of our agricultural success.

I would suggest that, for Māori, in part the individualisation of title gave people opportunities. Rather than harming them, it actually helped them. People say that it then led to partition and alienation. One of the requirements of a modern economy, though, is that people can actually sell things and not just retain them, so that people can use their resources in ways that suit them. That is not to say that there is not a place for iwi-owned lands. I recognise that. But it is wrong to suggest that all land under the Te Ture Whenua Maori Act should, essentially, be held collectively. That would actually be harmful. Some land may have to be and, indeed, should be held collectively; a fair measure of it should not be.

Indeed, an increasingly recognised problem is the growing number of owners of quite small parcels of land. That is not helpful, but one of the strengths of the partition and individualisation of title is that it enables people to sell, and to seek new economic opportunities. I acknowledge that those opportunities were not always available to Māori in the past for a variety of reasons, but surely in the 21st century they are.

As I said in the debate on the preamble, those acknowledgments essentially have a Rousseauean view of Māori—that of the noble savage, if you will. The view simply does not meet contemporary needs or, dare I say it, the needs of that time, either. Economies and peoples are dynamic. Our acknowledgments and statutes should also recognise that reality.

What we are often seeing now is land actually undeveloping. One of the reasons it is undeveloping is because in many cases land that was held a generation or two ago by one or two individuals—normally the head of a family or whānau—is now held by large numbers of people. So we are seeing those same farms, which are essentially family farms in the traditional sense of that term, now being owned by large numbers who are the descendants of those people of two or three generations ago.

That is actually harming the development of those farms, because what they do not have is reinvestment. People are not willing to put a portion of their income—for example, a person using his or her income as a teacher—into the development of the farm. Large amounts of money are expended on the administration of what is, after all, a family-sized unit that may perhaps have 300 owners. It is not efficient; it is not effective.

We need to acknowledge therefore that it was not always harmful—although in some cases it might have been—for titles to be partitioned and individualised. In many cases that actually laid the foundation for Māori farming enterprise. It enabled a whole lot of Māori back in the early part of the 20th century, in the first 50 years, to build individual farms, and that has laid much of the foundation of the economic strength of many Māori families. Yet today—and I know this from personal experience—some of those farms are going backwards because they are no longer owned by a small number of people; instead, they are owned by a large number of people. I noted the proceedings of the Hui Taumata, and saw that some of that was recognised, which is one of the reasons people are saying we should move on from the Māori Land Court.

That is one of the problems with the way we are doing treaty settlements. Unlike ACT, National is not saying we should not do treaty settlements. We say that we should do them, and we want to accelerate them, but the way we do them is crucially important. The way the acknowledgments are made should not just reflect the past but should also reflect aspirations for the future. I believe that those acknowledgments and apologies do not embrace the fullness of the task ahead of us. They are too one-dimensional.

The Government knows it will have more of those settlements to do over the next 2 or 3 months before the election, and my request is that it takes a broader view and reflects aspiration and looking forward as well as looking back. I fully understand that both elements are important, but I do not see them reflected in this legislation, and that is a pity.

Part 1 of the Ngāti Tuwharetoa (Bay of Plenty) Claims Settlement Bill is one of the more important parts of the bill. It lists the acknowledgments and apology by the Crown to Ngāti Tūwharetoa Bay of Plenty. Part of its importance is that it acknowledges the breaches of the Treaty of Waitangi—I will just leave it there—and it also acknowledges the confiscations made by the Crown of those lands belonging to Ngāti Tūwharetoa.

I pick up on a comment made by the speaker from United Future, who talked about the erosion of traditional structures. During the debate on the Ngāti Awa Claims Settlement Bill, we heard about an example of traditional structures being broken down, and that process was actually supported by United Future. So while on the one hand it is all very well to say that the Crown should not be contributing to the erosion of traditional structures, on the other hand neither should this House be doing so. [Interruption] Even if it is a deliberate choice by iwi, as mentioned by that member, it should be a decision only of the iwi concerned. It should not be made by this House or by any other outside group or organisation. That is why it is important to ensure that we do not contribute to the erosion of the traditional structures of Māori; it should be left up to them to make that decision.

I also make the point that Part 3, “Settlement of historical claims and miscellaneous matters”, talks about the settlement being final. New Zealand First supports that, but we do not support the premise that in the process of dealing with this particular historical claim we are not contributing to any future contemporary claims that people might want to make. I suggest that there should be some opportunity for that sort of claim to be made in the future. Although we might pat ourselves on the back that this is a historical claim that will have its finality in the passing of this bill, there is no assurance that we will not see contemporary claims in the future.

We also note that there is some reference to the principles of the treaty, outlined in clauses 7(2)(c), 7(3)(f), and 9(2), and translated into English in clauses 8(2)(c), 8(3)(f), and 10(2). I understand that amendments are set out on a Supplementary Order Paper to provide that those references be omitted, but I restate the position of New Zealand First: if we perceive that the use of the phrase “the principles of the Treaty of Waitangi” affects the operational and functional purpose of the bill, then we will certainly support its omission. But I believe, and New Zealand First certainly believes, that the inclusion of those words in Part 1 does not affect the operational or functional purpose of the bill.

A number of speakers have made reference to the position of the ACT party on this legislation. We do vote against these settlement bills, but we do not vote against them because we do not want to see settlement of claims for land wrongly and fraudulently taken and for property rights breached—breaches of article 2 of the treaty—we vote against them because they do an awful lot more than that, and an awful lot less than that. This particular part is instance of that. I have an amendment that I am hoping New Zealand First will vote for, which removes the subclauses that refer to the so-called principles.

The leader of New Zealand First is making great play—indeed, he has a bill on the Order Paper—to remove references to the principles of the Treaty of Waitangi in legislation. But then, for years since New Zealand First’s leader first realised that ACT New Zealand was speaking the truth when it pointed to the complete lack of definition of, and the strife being caused by, those references, he has joined in that chorus and has demanded definition. Yet New Zealand First has voted for clauses in legislation passed by this Parliament that still contain those references.

I would have liked my amendment simply to omit the phrase, in each place where it occurred, “and its principles”. That would have been quite sufficient, but my problem was my inability to work out exactly what words referred to the principles in the Māori version. So in the speed of drafting the amendment, I thought the safer thing was actually to omit the subclause as a whole. But if New Zealand First simply wants to put forward an amendment to my amendment so that it is only the words “and its principles” that are omitted from each place they appear, instead of the entire text of the subclause, I would be very happy to support an amendment from New Zealand First along those lines.

I want to refer also to the comments of Dr Mapp, where he, too, suggested that ACT did not support settlements. We are very conscious that New Zealand as a whole, and not just Māori, or Māori making treaty claims, may have a very wrong idea of what constitutes wealth in a modern world. It is not ownership of land that marks the countries that are rich. The Singapores and the Switzerlands are either amongst the most densely populated, the most land-short, or the most scruffy and unproductive land areas of the world. There are vast areas of natural wealth that is being under-used. What marks rich countries is almost the opposite of land wealth. It is the fact that, as peoples, they have had to work out how to be rich without land. I think that these treaty settlements are in fact directing Māori down a very sad path.

The worst example of a major settlement totally ruining an indigenous people must be very close to New Zealand, on the island of Nauru. Its people became rich beyond all dreams of avarice, and in one generation not only have they blown it but they have blown their health, as well. That is not to say that that will happen as a result of these settlements, but it does say that ownership of assets has next to nothing to do with either cultural or material wealth. Ownership of assets, as the Bible says, may in fact mean the very opposite. It may be harder for wealthy families to ensure that their children maintain the sorts of habits and the willingness to work that constitute true wealth, than for those who are poorer. If the Government is going to apologise for eroding traditional social structures, why is this Government not apologising for the welfare system that has totally devastated the Māori family? That is not a historical thing. This Government is doing it daily.

Hon Georgina te Heuheu: This is another treaty breach.

It is an absolute breach. If there was a breach of the Treaty of Waitangi and its principles because there was a transfer of land into personal ownership, what about the breach that means that 70 percent of Māori kids are growing up without a father? What kind of social erosion is that?

I want to make some comments. Stephen Franks has proposed amendments that provide for clauses 7(2)(c), 7(3)(f), and three other clauses to be omitted. They are the “principles of the treaty” clauses. I can understand why they are there, because the jurisdiction of the Waitangi Tribunal under section 6 of the Treaty of Waitangi Act is based on the principles of the Treaty of Waitangi. The officials need to take note of that, as well. Having sat on the tribunal for 10 years, I am pretty much aware of what the jurisdiction is, and it is the principles of the Treaty of Waitangi. So I suggest the reality is that unless a claimant tribe can come and show there has been a breach of the principles of the treaty, then its claim will fail. After succeeding on that basis, either through the hearings process or through discussions with the Crown, it is understandable why that clause, referring to the principles of the treaty, will appear in the settlement bill.

Having said that though, that clause has clearly become a—what can one say?

💬 Dail Jones: A template.

Well, it is certainly a template, but it has been a template for some time. I think that what one could say is that that reference has become a bit of a millstone around the neck of this Parliament. That situation has occurred only since the advent of the Labour Government in 1999, because of course that term, “the principles of the Treaty of Waitangi”, has been seen to appear in all manner of things since 1999, and the reality is that it does not always apply. National has severe reservations about the inclusion of that statement in legislation—no less in treaty settlement legislation than elsewhere. As I said earlier, it has become a millstone because the Labour Government has tried to push it everywhere—absolutely everywhere. It is in employment legislation, health legislation, and in local government stuff—you name it. The Government has plonked the phrase “the principles of the Treaty of Waitangi” everywhere, and it does not apply—it is not applicable everywhere.

In coming into the new dawn it is basically incumbent upon the Government to think hard about what it has done in this area, and to consider whether that is the best way of dealing with the claims. I guess that if something is a breach of the principles of the Treaty of Waitangi, then it is probably a breach of the treaty itself. I think that is probably why ACT has come out so strongly against that phrase, so National would have to support the amendment from ACT. However, we do recognise that the principles of the Treaty of Waitangi form the jurisdiction for claims to the Waitangi Tribunal, and therefore we can understand why the phrase is now part and parcel of settlement legislation. Going forward, National has already signalled, as has Winston Peters through his treaty deletions bill, that that may not be the case in future. But Māori should not be disadvantaged by the removal of that phrase, because if something is a breach of the principles of the treaty, it is hard to fathom why it would not also be a breach of the treaty itself. That statement is present in a number of clauses throughout the bill, and the Minister in the chair at this moment, Mita Ririnui, should turn his mind to whether it is the proper basis on which to settle claims. There is no harm in thinking about that and it is certainly appropriate to debate the issue, particularly since National has raised the issue that it may not be appropriate to use that phrase in these modern times.

New Zealand First would much prefer not to have the words “principles of the Treaty of Waitangi” in the legislation, but the amendment that has been put forward by Mr Franks wants to delete a whole clause and it is really looking at the matter in isolation. We have to look at all the clauses together; there is a package. We have to go on and look at clause 14 and at clause 15 to understand how it all works.

Essentially what we have in the legislation are these clauses in Part 1 that relate to an agreement that has been entered into. New Zealand First and, I am sure, the National Party do not want to go back and say to everyone: “Renegotiate the whole thing, otherwise we will not agree to it.”, because if we go on to clauses 14 and 15—and I hope the Committee will bear with me—they state that where the expression “principles of the Treaty of Waitangi” has been used, it is a historical claim. It is something in the past. Then clause 15 states that the settlement of those historical claims is final. So that is the last use of the phrase “principles of the Treaty of Waitangi” for historical claims in so far as this particular group is concerned. That is a package. It is completed.

If I were pleading this case in a civil claim, I would say that we do not agree with those principles and we deny that they exist but, in all the circumstances, they have no effect whatsoever because this matter is now at an end. This bill brings the concept of the principles of the Treaty of Waitangi in this context to an end. We have to look at the whole package to understand it. I think that is what Brian Donnelly was trying to explain, in his way, the other night when he followed what Mr Franks had to say on this legislation.

We do not accept that the words “principles of the Treaty of Waitangi’ add anything to this, but even if they did, it is almost irrelevant because this thing is at an end. It is finished now. It is over and done with, so what is the point in arguing about it? When we had the Ngāti Awa case, of course, we then had a situation—as my friend and colleague Pita Paraone has explained—where some new groups were created that had never existed before, even in the 1985 Māori regulations. We objected to that new breach of the Māori traditions, as Pita Paraone was saying to Judy Turner.

So while we would prefer to see the principles of the treaty not included, we accept that an agreement has been reached. New Zealand First wants to see this treaty process brought to an end. The last thing that we want is to have these things going back again for ever and a day. We are satisfied that the way in which the bill has been drafted, taking into account clauses 14 and 15, brings it to the end. The words “principles of” are really irrelevant. They do not mean anything. We believe that they mean nothing and, as they mean nothing, they cannot have any effect on anything, anyway. If we look at it in that context, they are meaningless. So why argue about something that is meaningless in this particular context, where the matter is at an end? We will go along with it in this particular context and situation, bearing in mind that, for example, in a State services piece of legislation or in some other new legislation that is continuing into the future, this ends it—this finishes it.

We will always oppose any new legislation that looks at the principles of the Treaty of Waitangi being brought in for future reference. But this settlement is a finalised matter; it is ended, and I think that is the way in which it should be considered. New Zealand First wants to bring the treaty process to an end, and this is bringing it to an end. I think that people like those members of the ACT party who want to continue moaning and groaning about what Māoris do and what Māoris are claiming become very upset when we do have a settlement, because it gives them one less thing to moan and groan about when it comes to election day. We want to see this finished, we have set dates for when these matters should be finished, and we are pleased that this settlement is being given effect to by Parliament.

I think it is probably a shame for the honourable member who has just resumed his seat that he was not around 140 years ago. He would have been a very good land purchasing agent. He could have been out there, basically persuading Māori that what they were getting was valuable and that black was white. It is the sort of sophistry I expect. Here is a man saying: “We need to do this. It doesn’t mean anything, so therefore it does not matter if we vote for something that is against our principles. Don’t you worry about it.” That was the snake oil salesman’s logic. “Don’t worry about all those reservation that you have. Don’t worry about the fact that the title is being transferred to the Crown. We will look after you. We will set up reserves.” It is the same kind of “just don’t worry about the detail” statements that got this country into the position where there were differing expectations and where there were such gross breaches of faith.

We do believe that there should be settlements of stolen property and of property taken without proper compensation. But we certainly do not believe that this Parliament, in 2005, should be passing law when it does not know what it means. If there is anything we can glean from what the Rt Hon Winston Peters has said about the so-called principles, it is that no one knows what they mean. And here we have a spokesman for New Zealand First standing up and telling us that it does not matter that we vote for four or five references to the so-called principles, because we do not know what they mean and they do not matter. Well, they do matter. There is simply a question of legislative integrity.

The member who has just spoken went forward to clause 14. I will not do that, but when we look at further clauses we find that kind of legislative drafting technique throughout this deed. We will hear about the so-called Ngāti Tūwharetoa values, which are spiritual, but there is no definition. We do not know what they are. A whole set of statements and mythology—what legal effect do they have? There is a dishonesty about this approach that I believe will condemn future generations to another round of complaint. If we can apologise and pay compensation for eroding the social structures of 160 years ago—and if the senior Government whip, Jill Pettis, can say that it is completely irrelevant that the social structure of Māoridom is being eroded by the welfare system, yet the inevitable individualisation of title 160 years ago is highly relevant—what kind of compensation will we have to pay one day for what has happened to the social structure as a result of the welfare State’s imposition? What will we pay to Māori families who have lost authority over their kids because they are not allowed to smack them? What will we say to the families where kids can go and leave home, and give the fingers to their parents, because they receive a living-alone allowance—where the State has stepped in and usurped the authority of parents entirely?

This bill is apologising for eroding the social structure because of land transactions 100 years ago. What a lot of drivel! If there is any apologising that should be done by the Government of this country right now, it should be for eroding the social structure of all the people of this country through a welfare system that rewards kids who do not listen to their parents, rewards not working, and discourages those who do work. For me to hear a New Zealand First speech that tells me not to worry about voting for the so-called principles because we can put it all behind us, when in fact the very same words that are used in that apology could well apply in two generations’ time to a whole series of apologies to people for having destroyed their social structure, then I do not think that New Zealand First values its vote, at all.

Here is a chance to put a stake in the ground. Here is a chance for those members to say: “We will vote for this settlement, but we will omit the three words, ‘and its principles’, wherever they appear.” If the Crown has to go back and ask Ngāti Tūwharetoa whether it wants to re-ratify this deed without those words, it should put it to the test. I would be very surprised indeed if Ngāti Tūwharetoa is wedded to those words.

I move, That the question be now put.

Motion agreed to.

The CHAIRPERSON (H V Ross Robertson): We have to deal with some amendments. The amendment in the name of the honourable member Stephen Franks is out of order under Speaker’s ruling 102/4 by Chairperson Simich: “An amendment that purports to amend an agreement reached between the Crown and other parties is out of order in a bill to give effect to that agreement.”

The question was put that the amendment set out on Supplementary Order Paper 367 in the name of the Hon Mark Burton to Part 1 be agreed to.