Ngāti Tuwharetoa (Bay of Plenty) Claims Settlement Bill

This, of course, is the part of the bill and these are the clauses of the bill that give effect and weight to the previous part, which was discussed just a few minutes ago. It is the part that makes it absolutely clear that Parliament considers this to be a full and final settlement and that Ngāti Tūwharetoa Bay of Plenty also accept that this is a full and final settlement.

But I want the Minister to tell the Committee how many members of the Ngāti Tūwharetoa Bay of Plenty iwi who are eligible to vote for the acceptance of this bill or of the deed of settlement, did so. We are very concerned that only a small number of this iwi—well less than half of those eligible—have voted in favour of this settlement. I know that the Government will have an answer for us, and I would like to hear it. It is important, when we reach the final stages of these settlements, that those who are being settled accept the deal in overwhelming numbers. We have to remember that much of the historical research etc. that was carried out to reach this point of the claim being settled originated in the oral history of Ngāti Tūwharetoa Bay of Plenty. Certainly the documented evidence that was available was considered. But in a society that values its oral history, I think it is very, very important that a large number of eligible people participate in the first place, and ultimately ratify any settlement. Low numbers participating leaves the option open for successive generations to say: “Look, Parliament settled that on us but a large number of us weren’t too keen on it. A large number of us never expressed a view on whether this was full and final settlement.” So, I would like the Minister to give us the numbers and convince us that enough voted. I see the United Future member holding up a piece of paper and waving it around. It is of no significance whatsoever. The member, I think, yelled out before that 55 percent of those who voted, voted in favour of the settlement. But how many did not vote? I am happy to be convinced; if the Minister has compelling evidence, that would suffice.

In accepting this part, I do think it is worth saying that the generosity of Ngāti Tūwharetoa Bay of Plenty should be recognised. Once we go past the point of saying that there is something to settle, the questions then become: “What is the cost? What has to be done to redress the grievance that is deeply felt?”. The reality is that in 2005 terms, measured against 1840 and subsequently, it is impossible to compensate adequately or appropriately for loss. Members should remember that these are land losses. In most cases these are rights losses. They are quantifiable. So, we reach a figure that is large enough to allow the iwi to maintain their mana, to hold up their heads, and to move forward.

So we simply say to Ngāti Tūwharetoa that this is a significant acceptance on their part. It is an opportunity, not only for their part of the world but also for the whole country, to take one more step towards the end of grievance and towards all New Zealanders focusing on a better future.

I would like to start by echoing the comments just made by Mr Brownlee. I think accepting this part is an act of generosity by Ngāti Tūwharetoa Bay of Plenty. As he said, this part is at the heart of the bill. It is about providing for full and final settlement, and it should be treated with the seriousness that the member gave it.

As to the comparisons of results, I can reassure the member. I want to echo what I said earlier in response to his colleague, which was that I agree entirely that it is highly desirable to have the maximum possible level of participation. Our obligation is to ensure the opportunity is there for that participation, but we cannot force people to exercise their right to participate—it is, after all, a right. But by way of reassurance to the member, in comparison, I can think of two good examples that have stood some test of time. In the case of Waikato-Tainui the participation rate was 40 percent, of which 65 percent voted in support of the final settlement. In Ngāi Tahu there was a 50 percent participation rate, of which 94 percent voted in support of the final settlement—somewhat higher than for Waikato-Tainui. In the case of Ngāti Tūwharetoa Bay of Plenty, there was a 55 percent participation rate, and 95 percent approval. So it stands well in that company. I agree with the member that we should always pursue the best level of participation, but participation in this settlement process was certainly better than in the two largest settlements that have stood some test of time.

First of all, I speak on the matter that my colleague Gerry Brownlee remarked on, and the importance of why National voted against New Zealand First’s amendment regarding the principles.

This bill arises because Ngāti Tūwharetoa brought a claim, the jurisdiction of which is based on the principles of the Treaty of Waitangi. There is no other jurisdiction that exists at this point in time upon which a tribe can bring a claim for a breach by the Crown. Of course there are parties in this House—ours included—that intend to change that jurisdiction in the future, but for the moment that is the jurisdiction that exists. I sat on the Waitangi Tribunal for 10 years and our brief was exactly that—the principles of the Treaty of Waitangi. That is why it is important under clause 14 that the historic claims are defined, because in Part 3, which is the part we are dealing with, we come to the settlement of the historic claims of Ngāti Tūwharetoa Bay of Plenty. Part 3 basically says that on that basis this tribe cannot at any time in the future return to this House for redress on the claims now being settled. As I say, we all must bear in mind that the settlement now proceeds on the basis of breaches of the principles of the Treaty of Waitangi.

I want to make a comment in regard to what Mark Burton said about the improvement in the buy-in rates of the tribes as we move along the process, first of all for the ratification of the governance entities, and for a particular tribe to approve of the deed of settlement itself. Although I agree that 95 percent of a 55 percent voter record is a vast improvement on particularly the first two settlements—Waikato-Tainui and Ngāi Tahu—the Minister should bear in mind that in both of those settlements, in my view, there was not the level of cross-claiming or overlapping interests that we now find in the Bay of Plenty area. Of course, the Minister has recently taken over and, I think, is now moving into the Bay of Plenty, into the central North Island. I wish him all the best as he tries to come to grips with all the overlapping interests in that area, in which of course my own tribe is involved. So, yes, this is a better validation of a deed of settlement, but in my view it has to be. The level of cross-claim and overlapping interest is far greater in respect of the centre of the North Island than we have experienced before. Maybe that statement is open to other views, because we have not actually moved to the northern area in any great way at this point. The fact that, in particular, the Kāingaroa Forest, which is the subject of a number of competing tribal claims, is in the middle, just highlights that we must always strive to improve the validation by tribes of their deeds of settlement. Otherwise, of course, there is the potential for any tribe to come back in the future regardless of clause 15, which states that no one can come back on those same issues. Only maximum buy-in, in my view, will guarantee that they do not come back in the future.

One other issue we should all be aware of that I want to refer to just briefly is clause 18, “Removal of resumptive memorials”. That is, indeed, a benefit of having a claim settled and of having similar legislation pass through this House. As we all know, for at least the last 10 years there have been caveats on a whole lot of titles in this process.

I want to take a brief call on clause 15 and to refer also to the statements made by my colleagues Georgina te Heuheu and Gerry Brownlee in relation to that. Clause 15 makes it quite clear, on the face of it, that this is a final settlement and that as a matter of law the settlement is of full force and effect. I guess that one of the concerns the public of New Zealand has—because the reality is that people know each Parliament can pass new law that repeals old law—is whether this nation will revisit these claims again. My colleagues have referred to the level of participation and the importance of buy-in, because “full and final” is not just a legal concept; it is a moral concept, as well.

I believe that there is a strong sense today that the procedures and processes—the nature of the negotiations and the democratic process of votes that occurs—do not lead just to a legal obligation, about which people feel that we can just change the law, but, more important, also to a moral obligation. It is actually the reason why successive Governments—National and Labour—refer to the Crown. It is the Crown that is settling; the Government of the day, in a literal sense, is merely the legal representative of the Crown, which is intended to have enduring force and ties. If there is one reason why New Zealand would retain that connection to the monarchy, it is that enduring legacy, which Māori often refer to. The moral force of having the Crown as the signatory is intended to bind not just the New Zealand Government but also the Māori signatories. The democratic path and process that the Government undertakes is well understood by Māori as being a reference to the Crown. Perhaps more than any other people in the country, Māori make reference to the honour of the Crown. I have heard many Māori leaders, scholars, and lawyers refer to that phrase. It binds both ways.

The moral force of the law we pass today is not something that binds just this Parliament, it also binds Māori—not just for one generation, not just for 10 or 20 years, but as a permanent settlement. In this instance, “permanent” means, in essence, forever. We are closing this chapter of Ngāti Tūwharetoa’s history and the Crown’s history together. People will look forward. I believe it is very important that Government representatives—and those on this side of the Chamber, as well—and Māori make it very clear to the wider public of New Zealand that this issue is closed. It is a trilateral relationship in that sense. This is an opportunity to move forward—to use the proceeds of the settlement to advance forward.

In the recent words of some prominent Māori people who have electoral aspirations, this is a 20th century issue rather than a 21st or 22nd century issue. I make the point that when National states that it intends to settle all settlements by 2010, when the Government by its legislation states that the settlements are full and final, and when Māori say that they are settling with the Crown, those statements have more than just legal force—they are moral impediments for the future of this country.

This is the part that records the settlement. Clause 15(1) states that the settlement is final, and that “on and from the settlement date the Crown is released and discharged from all obligations and liabilities in respect of those claims.” What is not immediately obvious from the words of clause 15 is that the definition that applies is set out in Part 2, which we have just considered. That definition relates only to historical claims. In fact, historical claims do not even include any claims that may have arisen since 1992; they go from 1992 back to 1840.

The Government should have learnt from the experience of the past 10 years or so that full and final settlement should be full and final settlement, and then the treaty should be dead. We have created a generation of talented young people who are now growing into their peak years and whose lives have been built around grievance. Although many of those whom I saw and was impressed by at the Hui Taumata want to move on, there are still too many who can hardly do that, because their living, their entire expertise, and their authority comes from that industry.

I am concerned that the Government is making these settlements, and that it still has a residue of public support for them, when, in fact, elements of the claims are expressly not settled. I imagine, for example, that Ngāti Tūwharetoa will be pushing Wai 262—that unbelievable claim to own the flora and fauna in New Zealand when Māori, and later Pākehā, came. I do not think that the settlement in Part 3, or any of these settlements, should be made while the Crown deliberately fosters the notion of a distinction between the contemporary claims under a treaty that goes on forever, and that forever draws distinctions between New Zealanders on the basis of their ethnic inheritance, and a treaty that deals with the terms on which two different peoples coexist for the shakedown period until they genuinely became one people—the one people that Hobson foresaw. So I think that the rather extravagant language in this provision, which states that the Crown “is released and discharged from all obligations and liabilities” in respect of the historical claims, should be withheld until we know that New Zealanders are to be rid of the treaty once the settlements are made.

I see no place in a constitution of a contented society for a document that people call a foundation document that states that people can claim inherited privilege on the basis of their ethnic inheritance. That is exactly what the contemporary arguments say. When the Hon Margaret Wilson became the Minister in 1999, she told the House that there would be a statement of the principles as the basis on which claims that were not historical would be approached. That document has never emerged. I do not know whether any work has even been done on it in the last 3 or 4 years. We were told in the first year that there was a lot of work being done on the principles for settlement of the so-called contemporary claims, but we have never seen it. There was to be a whole-of-Government approach. I think the office that is represented by officials here today was to be in charge of it. It got too hard.

The contemporary claims are now scattered throughout the Government, and we have no idea whether there is any consistency in approach whatsoever. The honourable John Tamihere was in charge of dealing with some of them—the Wai 262 claim, for example, which I think is one of the claims that is most likely to cause offence between Pākehā and Māori. The Wai 262 claim, which should have been included here, is a matter that—

💬 Darren Hughes: Two percent support in the polls.

Is the Government whip complaining about another call being granted?

💬 Hon David Cunliffe: He is just observing that ACT is 2 percent in the polls.

Two percent. This is a very, very arrogant Government. The arguments being put forward are arguments the people of this country have wanted to hear in this Parliament for 20 years. A speech from Dr Brash caused such a crumble in Labour’s support because it was what people had been dying to hear. A speech like that caused such a reaction, and the Minister’s only response on a question of whether the treaty is truly a fundamental constitutional document was to throw out a jibe about party support. What a feeble and inadequate response! There must be something that he feels will be achieved.

💬 Hon David Cunliffe: Who is your target market?

The target market for this speech is, in fact, New Zealanders who are asking where this treaty industry is taking us. How do we know that anything is full and final?

💬 Hon David Cunliffe: Two percent!

Does the Minister think that only two percent of people are worried about that? The Minister needs to look at the polls that did not tell him what was creeping up when Dr Brash made his speech. When Dr Brash made his speech, Labour was just as cocky. The consequences will come again.

But the question that Part 3 raises is: what is a settlement? What is “full and final”? How do we know that this legislation matters at all when the contemporary claims have been left fully alive—that is, anything that has happened after 1992? All of the sense of grievance can be regenerated in another generation. It can all come back. If there is not truly a partnership—if we are not all living here as part of the Crown under the Sovereign—and if instead we are negotiating through our representatives for a privilege based on our ethnic origins, then there can be no final settlement. This settlement will mean nothing, if that is the foundation for New Zealand’s polity. If that is the basis on which we relate to each other—that we share the spoils of power, which is the way that Labour approaches government—then there is no end to this, and the settlements are nothing more than a temporary payment to postpone the next instalment.

The question was put that the amendments set out on Supplementary Order Paper 367 in the name of the Hon Mark Burton to Part 3 be agreed to.

Amendments agreed to, and Part 3 as amended agreed to.

Part 4 Cultural redress