Ngāti Tuwharetoa (Bay of Plenty) Claims Settlement Bill

I want to make some comments about clause 13, “Meaning of Ngāti Tuwharetoa (Bay of Plenty)”. I will just make a preliminary comment. Originally the bill dealt with this on the basis that the claimants, or the settlees, were Ngāti Tūwharetoa. What has happened is that the bill is now properly named the Ngāti Tuwharetoa (Bay of Plenty) Claims Settlement Bill. That is basically to differentiate the claimants from those Ngāti Tūwharetoa living beneath Mount Tongariro. The claimants here, the Bay of Plenty families, originally wanted the bill’s title to say just “Ngāti Tuwharetoa”, but the Māori Affairs Committee saw that as being designed to cause confusion unnecessarily, and now we have the bill named as it is.

I now come to clause 13, in which the group itself defines who are to be regarded as Tūwharetoa people. Clause 13 states: “(1) In this Act, ‘Ngāti Tuwharetoa (Bay of Plenty)’—(a) means—(i) the collective group composed of individuals …” and “(b) includes—(i) the hapū of Ngāti Tuwharetoa (Bay of Plenty); and (ii) any hapū, group, family, or whānau composed of individuals …” of those hapū.

The issue I want to make some comments about is the meaning of whāngai in clause 13. Whāngai, as members will know, is a type of Māori adoption where there is a recognition that a child has been taken into the home of a particular family and for all intents and purposes, but without the legal trappings of a formal adoption, has come to be regarded as being of that family. Some tribes, unless that whāngai child is actually related by blood to the family who have taken him or her into their home, do not necessarily regard that child as being of that tribal entity.

It seems that Ngāti Tūwharetoa Bay of Plenty have settled upon a definition in clause 13 that states: “ ‘whāngai of Ngāti Tuwharetoa (Bay of Plenty)’ means a Māori who is recognised as Ngāti Tuwharetoa (Bay of Plenty) in accordance with Ngāti Tuwharetoa (Bay of Plenty) tikanga (customary values and practices).” I wonder whether the Minister could just confirm for this Committee and for those who are listening in to this debate whether that definition is limited strictly to whāngai who are descended by blood from their original family, or whether it includes a whāngai child who has been brought into the family and is being brought up by that family, and is a Māori none the less but not of that same kin group.

💬 Pita Paraone: Could be Chinese.

The child could very well be Chinese. He or she could be, but, on the other hand, as the provision states “in accordance with Ngāti Tuwharetoa (Bay of Plenty) tikanga” then surely the child could not be Chinese. But I do not think it is clear, and that is why I would ask the Minister to take a call and clarify for us whether that includes Chinese people. Does it include Gerry Brownlee? If I recall correctly, Gerry Brownlee raised this as a matter of real concern in the select committee.

💬 Pita Paraone: He’d be a good whāngai.

He would be a good whāngai, yes, but does it include him? I am sure my colleague Gerry Brownlee would not mind me bringing him into the debate because, as I say, this was an issue of real concern to the committee members and it took up quite a lot of our discussion.

I thank the member Georgina te Heuheu for her contribution and for her desire to seek clarification on whāngai according to the tikanga of Ngāti Tūwharetoa ki Kawerau. As she will be aware, and as I am sure every Māori member in this Chamber is aware, respective iwi have their own tikanga in terms of whāngai. Ngāti Tūwharetoa ki Kawerau have been inclusive in the interpretation of their tikanga. Whether that would make a Chinese person, Gerry Brownlee, a Pākehā person, or anyone else of any ethnicity eligible for the benefits of the settlement will be entirely up to Ngāti Tūwharetoa ki Kawerau to decide in accordance with their tikanga. I do not think it is appropriate for any iwi that is not connected with this settlement to challenge their right to do so.

I have family members who have been legally adopted, and who have been whāngai-ed according to tikanga, who are not of Māori descent. They—meaning my brothers, sisters, cousins, or whoever—will enjoy the benefits of any settlement that comes through their adopted parents. Those benefits come through that line—they do not come any other way—as would be the case for a natural child of any beneficiary of any settlement.

I am very pleased with that explanation made by the Minister. I think the further important point to be made and to become part of the record relates to the phrase: “in accordance with Ngāti Tuwharetoa (Bay of Plenty) tikanga (customary values and practices)”. The Minister is quite right. If Ngāti Tūwharetoa, according to their tikanga, want to include Gerry Brownlee or a Chinese person, kei te pai. I think that is what the Minister is saying. That is fine.

💬 Hon Mita Ririnui: That is their concern.

The Minister is saying that that is not for us as parliamentarians to question. That is fine as well.

But I flag a concern that some future Government would suggest that. Well, if it is good enough for Ngāti Tūwharetoa ki Kawerau to include Gerry Brownlee, a Chinese person, or any other person—we are not picking just on Chinese people, and I hope any Chinese people who are listening understand that; it is just by way of an example—then it should be good enough for any other tribe settling subsequently.

But that will not be the case, because the settlement is limited by the words: “in accordance with Ngāti Tuwharetoa (Bay of Plenty) tikanga …”. The tikanga of Ngāti Tūwharetoa Bay of Plenty is bound to be different from the tikanga of, say, Ngāti Hine up north—it may be different. If it is different, and if Ngāti Hine, or any other tribe that comes to settle, decide that some person outside of the kin group or blood group is not to be a beneficiary, then that is their right, too.

I think the importance of this discussion is the recognition that these settlements are distinctive and unique to the tribe that is settling. In this Committee tonight we are dealing with Ngāti Tūwharetoa Bay of Plenty and no other tribe, and what is their right to decide cannot, or ought not to, in the future be taken as something generic to be applied to all other tribes settling. As long as we all understand that, and as long as it goes into the record, then no harm is done.

As I said, I appreciated the explanation from the Minister, and I appreciate the Chair giving me that extra time to put that into the record. It is very important. Other tribes, of course, are already starting to grapple with the issue. The Adoption Act makes adopted children beneficiaries whether or not one wants them to be, and whether or not they are blood or kin. In respect of whāngai, without a legal adoption there is still room for the tikanga of a particular tribe to apply.

I particularly want to refer to clause 14 and, frankly, I have to say, for a party that has made so much of the inclusion of the principles of the Treaty of Waitangi, how bad it is that it is not taking a call on this part. The New Zealand First Party is apparently not taking a call on Part 2.

💬 Dail Jones: That is a lie—you wait and see.

Oh well, I will be pleasantly surprised if the New Zealand First Party does choose to take a call on Part 2—[Interruption] I tell the member that I do not need cross-interjection. I just wish to make the point that a party that is serious about eliminating references to the principles of the treaty should take calls when they arise, as they do, in clause 14. National’s policy, announced by Dr Brash in the now famous speech at Ōrewa, is to remove inclusion to the principles of the Treaty of Waitangi from legislation. I wrote about that in the New Zealand Law Journal in May of 2003.

What is wrong with the inclusion of the principles? It is this. The principles do not exist in reality. What one actually has are provisions of the Treaty of Waitangi—clauses that are quite simple on the face of it—both in English and in Māori. Normally one would expect, would one not, in interpreting an agreement—and the Treaty of Waitangi is an agreement—reference to the terms of the agreement itself; not some judicial fiction invented by the Court of Appeal trying to do its best about some appallingly drafted legislation by the Lange-Palmer Labour Government. Because that is what it all stems from: that appalling inclusion in the State-Owned Enterprises Act, which has now infected our law to our disadvantage.

So we are saying: “Let’s revert back to first principles.” Let us remove reference to the principles of the Treaty of Waitangi; and in this case we are in agreement with other centre-right parties in this Parliament—New Zealand First and the ACT party. We do believe in a reference to black letter law—one lets the law say what it means, and one makes reference to the terms of the treaty, which are precisely the issues raised in clause 14 of the bill.

Clause 14(a)(i)(A) states: “from the Treaty of Waitangi (Te Tiriti o Waitangi) or the principles of the Treaty of Waitangi (Te Tiriti o Waitangi);”. It should be one or the other. Only reference to the treaty is required. That would be of enormous benefit to the law. In substantive terms it would make no difference to the way we do our settlements, because we recognise that settlements are for breaches of the treaty—in other words, confiscations and other actions that remove the property rights of Māori. That is the very essence of the preamble, the acknowledgments, and the apologies within this document. Land was confiscated, in essence illegally, in breach of the terms of article 2 of the Treaty of Waitangi. So we say that the rule should be quite clear. In claim settlements one is acknowledging breaches of the law.

The only reason Māori cannot sue on the basis of the Treaty of Waitangi is that essentially it is outside the statute of limitations; there are other reasons as well, but that is the main reason. If, for instance, the breach had occurred 12 years ago, people would simply sue for breach of the law. In reality these breaches occurred much longer ago, so one has to make reference to the breach of the Treaty of Waitangi itself—not a document that is part of the law of the land, I might add—and that would be the answer to these vexed issues. We say this: the Government makes consistent and persistent errors by continuing to include these provisions.

Dr Mapp was not in the Chamber when I spoke on this bill a short while ago, but I am now speaking again. I note the interest that Dr Mapp has in the use of the words “or the principles of the Treaty of Waitangi (Te Tiriti o Waitangi)” in clause 14(a)(i)(A). I appreciate his concern and Mr Franks’ concern about that. Of course, Mr Franks’ previous amendment, to a whole clause rather than to a part, was ruled out of order. Just to be consistent, I am putting forward an amendment to delete the words “principles of the Treaty of Waitangi (Te Tiriti o Waitangi)”, and we will see whether the National Party supports it. I got the impression from the previous speaker, Georgina te Heuheu, that National was quite happy with what I said a little while ago. But perhaps Dr Mapp was not listening to what I said, and now he is saying “All right, let’s put it in.” So I am putting in an amendment, and we will see where we go with Dr Mapp on that particular issue.

The issue does not make any difference either way to me or to New Zealand First, in the context of only this legislation. As I said, this legislation brings something to an end, and whatever the people of Ngāti Tūwharetoa Bay of Plenty are getting—on the basis of whatever principles may exist, on the basis of the Treaty of Waitangi, on the basis of this confiscation or that confiscation, or on the basis of whatever somebody said 100 years ago, 50 years ago, or 25 years ago—we really do not know what finally drove people to come to this decision. One has a negotiation, and one ends up with a compromise. I doubt whether anyone who sat around the committee table, in coming to this conclusion, said it had to be worked out on the basis of the principles of the Treaty of Waitangi. I am sure that when people look at the settlements set out in the schedules, they will see that none of those settlements relate to anything to do with the so-called principles of the treaty. It came down to people making a decision, reaching a compromise, and saying that at the end of the day they have argued about the issues for 100 years, and finally the Government and the various political parties have decided to do something about them. So those people have reached this decision.

It is really academic and a matter that is in the past tense to go into the reference to the principles of the treaty in this particular bill. However, I appreciate the concern that other members have expressed, so I have asked for the words “or the principles of the Treaty of Waitangi, (Te Tiriti o Waitangi)” in clause 14(a)(i)(A) to be deleted. I really look forward to receiving the support of Georgina te Heuheu and Dr Mapp on that.

This bill has had a considerable amount of time spent on it already, and New Zealand First wants to bring all these matters to an end and have the issues resolved. That is the basis of our policy. I do not intend to take any further time on this issue, and look forward to the clause being dealt with at the appropriate time.

The CHAIRPERSON (Hon Clem Simich): I call Stephen Franks.

I raise a point of order, Mr Chairperson. I am sorry to interrupt Mr Franks at this point. I realise I am slightly beyond the time, but I have taken the time and trouble to check the order of speaking. I said in my speech that New Zealand First had not taken a call in Part 2 on the principles of the treaty. I was accused, in an unparliamentary term, of not being correct. I have since checked the record and seen that, in fact, a call had not been taken in Part 2 at that time. I therefore ask Mr Jones to withdraw the comment he made about me.

The comment that my friend Dr Wayne Mapp made was that New Zealand First is not taking a call. That was in the future tense, and I said to him that he could not tell us what we were going to do. As you know, Mr Chairman, the National Party is entitled to two calls, and New Zealand First is entitled to one call, in the Committee stage. Georgina te Heuheu had one call, Dr Mapp had another call, and then it was my turn to get the call. Dr Mapp should learn a little more about the Standing Orders and about tenses before he gets carried away.

💬 Dr Wayne Mapp: I wish to reply to the accusation just made.

The CHAIRPERSON (Hon Clem Simich): No, we are getting into a debate between the two of you, and I do not think we need to take it any further. In regard to the matter of the speaking order, everything is OK.

I raise a point of order, Mr Chairperson. It is a fresh point of order. It is an issue of tense. I did not use future tense; I used past tense. I am absolutely clear on that point, and I invite Mr Jones to reflect upon that point.

The CHAIRPERSON (Hon Clem Simich): I take your point, Dr Mapp.

I want to address an amendment that Mr Dail Jones, for New Zealand First, has proposed and just spoken on. The effect of his amendment is to remove from clause 14 the reference to the principles of the treaty. That would leave clause 14(a) defining historical claims as being every claim that is founded on a right arising from the Treaty of Waitangi, or arising under legislation, common law, aboriginal law, or fiduciary duty, in relation to Acts before 21 September 1992. Now, this may seem like simple party point-scoring—and I would like to be able to support the amendment, because I do not like those words—but I think that New Zealand First has the order of things around entirely the opposite of what it really intends.

There is only one place in this bill that should refer to the principles of the Treaty of Waitangi, and that is clause 14, because that clause is the definition that tries to state that the settlement is full and final. When parties state later on, in the operative clause, that they accept there will be no more historical claims, that is defined in clause 14. Unfortunately, clause 14 refers to the Treaty of Waitangi Act, where section 6 uses the phrase “the principles of the Treaty”. In other words, the only reason we are having this settlement is that there was deemed to be a breach of the principles of the Treaty of Waitangi. So this is the one place where those words have to stay, simply in order to get rid of them.

In the earlier part, the words were redundant. If we believe there is no such thing as the principles and there is only the treaty, the words are utterly redundant and should have been removed, in order to make sure that we were not endorsing and continuing that redundancy. In clause 14 the situation is the opposite of that. In clause 14 we have to refer to the principles of the treaty because we are actually getting rid of them. Therefore, although I would very much like to vote for a New Zealand First change of heart to get rid of these principles, in this particular case clause 14 is the one place where it is necessary to refer to them. I believe that is what the Hon Georgina te Heuheu would say, too. She has looked at this issue and, as a former member of the Waitangi Tribunal, she knows that however much the words “the principles” confound things—however hard it is for people to decide exactly what they are supposed to cover—that is the wording that the legislation used, and it is what the tribunal had to apply. Therefore, when we settle a claim those are the words that need to be used in order to state that it is all over, and that people cannot settle it any further. When we remove the words “the principles of the Treaty” from the Treaty of Waitangi Act, then we will never again need this kind of loony definition. Mr Jones’ instinct was right; it is a loopy thing to have in our law. But, as a technicality, clause 14 is the one place where we need to use it.

I am glad to see that New Zealand First will bring forward an amendment of this kind. That is courageous, and I wish that I could support it. I think that possibly with a bit more time, and if we had had time to sort this matter out not in sight of the microphones, we might have reached agreement on just what should be done with regard to the references to the principles of the treaty. But as the situation has turned out, New Zealand First has found the courage to propose the elimination of the reference to the principles of the treaty one part too late in this debate. I will, of course, watch very closely to see how National votes on this amendment, and to see whether the Hon Georgina te Heuheu takes a call again to explain just how National will vote on this move by New Zealand First.

I have found the speeches made by the National members very interesting. Dr Wayne Mapp’s very thoughtful speeches show just how long he has been thinking and what a long trip he has had to take to get to where he is at today, from the position he was at 3 years ago. But that is something to be commended, and he has made it obvious that it is not just a reflex backflip but is reasoned.

That was an interesting speech from Stephen Franks. It went to the heart of the issue of what the principles of the Treaty of Waitangi are, and what references to those principles in any law mean.

It is interesting that even today in the select committee we were discussing with the Office of Treaty Settlements an interpretation of the principles set out by the Crown Minerals agency. We discovered that many Government agencies have their own set of principles that are to be applied to the Treaty of Waitangi. There is no doubt that it is appropriate for the Government at some time in the future, presumably immediately after the next election, when Don Brash is the Prime Minister, to go through an exercise of removing those references from legislation where they have multifarious meanings—where they have meanings that cannot be considered consistent from one piece of legislation to another.

The question that arises here is whether we should do as New Zealand First would have us do and remove from clause 14 references to the principles of the Treaty of Waitangi. I think we have to be very careful about a blanket removal of such statements, particularly if those statements in some way constrain an activity that is normally available to a claimant group. That is exactly what is in clause 14. Effectively, it means that Tūwharetoa Bay of Plenty cannot come back to Parliament using a Treaty of Waitangi grievance, or picking up on any principle of the Treaty of Waitangi that may be garnered from the smorgasbord of principle opportunities scattered throughout our law, to have another go at settlement. That is understood by Tūwharetoa Bay of Plenty. That is part of the agreement that has been reached with the Crown. In that circumstance I am of the view that, by referring to the principles of the Treaty of Waitangi, we are simply extending the concept beyond just the grievance process that might be taken to a tribunal, into a statement that says: “Don’t try using any of those other options that many laws currently provide to you.”

All that National members want to make clear is that, at the same time, we will support, encourage, and lead moves to get unnecessary reference to treaty principles out of legislation. The question is whether it is necessary here. In the uncertain environment that we have at the moment, we can have the Office of Treaty Settlements happily tell us that although numerous Government departments will have their own interpretations of what the treaty principles mean, it is OK just to fire them into bits of legislation here and there.

In this case the legislation is very clear, and is worth reading. Clause 14(a) states: “… every claim (whether or not the claim has arisen or been considered, researched, registered, notified, or made on or before the settlement date) that Ngāti Tuwharetoa (Bay of Plenty) (or a representative entity) had at, or at any time before, the settlement date, or may have at any time after the settlement date, that—(i) is, or is founded on, a right arising—(A) from the Treaty of Waitangi … or the principles of the Treaty of Waitangi …; or (B) under legislation or at common law …; or (C) from fiduciary duty;” and so on. Effectively, avenues that could exist at the moment in the law for another look at a settlement are closed off by that coverage.

It really points to the need for Crown Law to do the major exercise of going through legislation. I hope the Rt Hon Winston Peters’ bill does make the floor of the House. National members will support that. We want it to go to a select committee. I cannot understand why the man has never sought leave to have it come before the House, but he does not really want it to come up before the election, because he knows that it will be treated in a fairly discursive manner by the current Government, and it deserves a great deal better treatment than that. So the new Government will pick up that concept. It will have Crown Law go through legislation fastidiously, looking for places where there is blanket reference to the Treaty of Waitangi.

The incident I mentioned before was that of a settlement bill that dealt with the potential for the particular iwi to claim mineral rights. It said that in future Crown Law had to deal with that iwi according to the principles of the Treaty of Waitangi. The question was asked of it as to which principles those were. The answer was the principles that that department has established as being relevant to it in relation to the treaty. Well, that really means that some bureaucrat somewhere—poor fellow, or woman, whomever it might be—has an awfully large duty upon him or her to respect not only the interests of the settling party but the wider interests of the New Zealand taxpayer, the New Zealand citizen. I think that is unacceptable. Parliament should be much more prescriptive than that.

In conclusion—and thank you, Mr Chairperson, for the extra time—I just want to make it clear that National is supporting the statement in this clause about treaty principles, because it is a restriction on all other references to the principles of the Treaty of Waitangi that are scattered throughout our law. We understand what New Zealand First is trying to do. We applaud it for calling to attention the extent to which reference to treaty principles litters our law, but we feel strongly that by this statement being included here greater protection and greater clarity are given to the finality of this particular settlement. If settlements are to be full and final, then there should be no opportunity in those settlement bills for another look at them. Without the specific exclusion of reference to the principles of the treaty, then it is fair to say there could be just a glimmer of opportunity for a successive generation of Tūwharetoa Bay of Plenty descendants to have another look at it.

I move, That the question be now put.

It is a funny old Parliament, is it not? There we were on Part 1, and I was getting—shall we say—attacked by Mr Franks about supporting the principles of the Treaty of Waitangi, and we learnt that we could not put forward that amendment anyway, because it was an agreement. So New Zealand First called everybody’s bluff and we put forward an amendment to remove the phrase, “the principles of the Treaty of Waitangi”, because I had heard from Dr Mapp that he seemingly supported the removal of that phrase. I had had that very strong impression from Dr Mapp. He had challenged me to take a call, and had made the point that I had not taken one, so I took a call and said that I would put forward an amendment to delete references to the principles of the Treaty of Waitangi.

Then what did we have? We had the deputy leader of the National Party make the speech that I had made on Part 1. That is what it boiled down to. He had seen the light. So we have almost three views from the National Party: we have the Gerry Brownlee view, the Dr Wayne Mapp view, and the Georgina te Heuheu view.

Of course, I was amused by Mr Stephen Franks. He accused me of being a snake oil salesman. What was his second speech if not a speech from a snake oil salesman—with all due respect to Mr Franks!

Well, we have put forward the amendment and we will be arguing for it to continue. Interestingly for the future, exactly the same sort of wording is used in the Ngaa Rauru Kiitahi Claims Settlement Bill that is coming up. Perhaps we will take a different view on that legislation but, having established this sort of trial on the wording this time, I will still persist with my amendment and perhaps next time things will be different—the view having been confirmed around the Chamber on this occasion.

The question was put that the following amendment in the name of Dail Jones to clause 14 be agreed to:

to amend paragraph (a)(i)(A) by omitting the words “or the principles of the Treaty of Waitangi (Te Tiriti o Waitangi)”.