Ngāti Tuwharetoa (Bay of Plenty) Claims Settlement Bill

This includes debate on schedules 1 to 9.

Part 4 deals with cultural redress, which this Parliament will have become familiar with. For those people who might be listening, it is part of a package of redress options that the Crown usually negotiates with claimants. There is usually some financial redress, property redress, and cultural redress.

I want to mention an issue that the National team has raised in a number of debates, not just on this bill but in other debates on bills that are currently before Parliament, and also in the debate on the Ngati Awa Claims Settlement Act that was passed into law 2 weeks ago. Statutory acknowledgments essentially give some preference in various ways to various sites in a particular tribe’s rohe and give recognition to the fact that customarily the tribe exercised certain rights—they lived in certain places and gathered food in certain areas. This acknowledgment is an attempt to recognise those customary practices.

The issue that has been concerning the National Party over recent months is the sets of narratives that accompany recognition of these statutory acknowledgments. I think our colleague Pita Paraone has referred to this already this evening. The tribes, rightly, are required to show their connections with various rivers, mountains, hills, and land sites. That is a proper thing to do, and those recognitions are acknowledged in the deed of settlement. But I think there is an issue about that recognition becoming part of the bill. To demonstrate this, we were presented with a schedule that recounted how the geothermal resource came from Hawaiki to Tongariro in my own area. Suffice to say, that schedule did not find its way into the bill that is now before us, and for good reason in this case because Ngāti Tūwharetoa Bay of Plenty gave a recitation of the coming of fire, so to speak, from Hawaiki to Tongariro, which in some respects precluded Ngāti Tūwharetoa, my own people, from telling their story as to how that geothermal resource came to exist in Aotearoa. Thankfully, Ngāti Tūwharetoa Bay of Plenty were persuaded that their acknowledgment and the recognition of their relationship with the geothermal resource could just as easily be accommodated by its recitation in the deed of settlement, and therefore it did not find its way into the bill.

These acknowledgments are made up of a mixture of mythology and history, but very often it is mythology. That does not make it wrong but it does present a problem.

💬 Dr Wayne Mapp: It shouldn’t be part of the law.

Yes, it does present a problem for us as legislators as to whether we should be incorporating those sorts of stories and mythologies into the law. Increasingly, National is of the opinion that if it is not necessary to put it into the bill itself, then why should it be in the schedules? It is not so fatal as to make us vote against the settlement legislation, but Parliament should be careful as to what it puts into the law.

I would like to thank my colleague Georgina te Heuheu for drawing out the point of the role of the law and mythology. Certainly one recognises that all peoples throughout the entire world have their myths, legends, and beliefs, because this is part of the human condition. We have tried in this country, as much as is reasonably possible, to keep the spiritual world apart from our law. We do it for good reason. We do it because we want to treat all people equally, irrespective of their beliefs. Difficulty occurs when people’s beliefs are elevated into the law. It is exclusionary—it excludes others, in essence.

I have heard the Prime Minister talk about one of the values of New Zealand being that it is a secular society, and I happen to agree with her. We are a secular society. That does not mean to say that we are an irreligious society, or that we are a society without beliefs. It is saying, however, that we do not put those beliefs into the law, because the intent is that we treat all our citizens equally, irrespective of the beliefs they might happen to have. That enables each person, and each group, to have their beliefs—to celebrate them, to commemorate them, and to pay observance to them. We treat that as standing outside the law of the land. So our secular society is another way of saying that we are all equal before the law.

National has taken the view that the myths and legends referred to in the various schedules—for instance, schedule 9 refers to the fire gods Pupu and Hoata, and schedule 6 refers to islands disappearing as a result of karakia—do not have a place in the law of the land because they infringe the idea that we are all treated equally. As my colleague said, we will not be using that as a reason to vote against the legislation, but we are saying that settlements of this nature should not have those references in them. Moreover, they are not even required. Ngāti Tūwharetoa Bay of Plenty do not require those references to establish their connections. They can do that by temporal references rather than spiritual references. That is the role of the law, as opposed to the role of belief, in our society.

So I am taking the opportunity, along with my colleague, to say that we need to think afresh about this, because it is about the values of our country. I have heard the Prime Minister speak of the importance of secular society. I presume she understands what she means when she says that, which is that we are all able to be treated equally in our own country.

I say, in brief response, that I think the points made are certainly worthy of consideration for future reference. I acknowledged that myself to the Māori Affairs Committee when we met concerning this matter. In looking to future settlements and to the legislation, and at the link between them and the deeds, I think, indeed, that this is a matter that can be properly discussed. I think the potential difficulty in this case was that in good faith the negotiators had reached a point where the legislation was to reflect, by repetition of those records, what is contained within the deed.

I want to put on record my appreciation of the willingness of Ngāti Tūwharetoa Bay of Plenty negotiators to be responsive to the concerns that were raised, and their willingness to have that amendment agreed to. I think that allowed us all to move forward constructively, and to bring the legislation back to the House with a general agreement. Rather than discord, we are having a sensible discussion about how we will deal with these matters in the future.

I was going to say that Part 4 is the guts of the bill, but it is not. Part 3 is the recognition of settlement. Part 4 is full of the provisions that should really worry people about the future of the settlement. It is simply stuffed with provisions that no one can tell the meaning of. Part 4 hands out a new generation’s bangles and beads to Ngāti Tūwharetoa. The protocols look as if they are offering something from the perspective of a believer in a good-faith approach, but when we get down to the legal language we see they are deliberately stated to mean nothing in terms of impact or enforceability.

The ideas of cultural redress properties and of statutory acknowledgments are expressly said in one part to be an acknowledgment by the Crown of the particular cultural, spiritual, historical, and traditional associations of Ngāti Tūwharetoa with the statutory areas listed. Then a statement of purpose requires the Environment Court and the Historic Places Trust to have regard to them, to ensure that Ngāti Tūwharetoa gets notice of resource management applications in order to allow it to cite statutory acknowledgments as evidence of association. It says that the statutory consent authorities, including the Environment Court, must have regard to those acknowledgments and that they must be recorded on statutory plans, but states further on that the contents are not binding as deemed fact on any of those authorities. So the authorities have to have regard to the acknowledgments, but they need not treat them as statements of fact. The part then states that they are not exclusive, so the association would appear not to give a privilege—although I think it is intended to look as if it is giving a privilege.

The provisions go further, for example into the geothermal statutory acknowledgments, and say that they do not really mean anything to anyone else. So what is it that one has when one does a negotiation, sets out the instruments—in the most authoritative form of instrument that this country knows, an Act of Parliament—and states on one page that people have to have regard to them, and then on all the succeeding pages says that they do not mean anything? The Minister might care to explain, in just a few words, exactly what the acknowledgments intend to confer. Are these valuable, or not? Future generations will say that they cannot accept that the Crown and Parliament set out, once again, to mislead and cannot believe that a Parliament would spend time going into these things, to create instruments that do not mean anything—instruments that a body is directed to have regard to but is then told are not binding.

So what does it mean? Why is there no definition of “having regard to”? Why will the courts be left to try to decide, under the normal statutory rules of interpretation, that Parliament must have intended it to mean something when the words say that it does not? We are setting this up for the same kind of confusion that New Zealand has been bedevilled by ever since Parliament put those ridiculous words into the State-Owned Enterprises Act—that nothing shall be inconsistent with the principles of the Treaty of Waitangi—when it knew that no one knew what those principles were.

These bills will be made to mean something by courts. It might not be that the courts are setting out to cause strife—the sort of strife this Government got itself into when the courts decided that the seabed and foreshore were not owned by the Crown, as everyone had assumed for 100 years. They may not set out to cause strife, but they are bound to try to give some meaning—other than sleight of hand—to a statutory document. The Minister surely can tell us exactly what is meant by, for example, clause 56 that states: “The entry into a deed of recognition does not, in relation to a statutory area to which a deed of recognition applies,—(a) require the Crown …”.

I want to make some comment on this part of the bill—particularly in terms of some of the comments made by those who have already spoken—given that it is all about cultural redress.

Reference has been made to the narratives regarding cultural connection that have been excluded from and included in the bill. I say right from the outset that Ngāti Tūwharetoa have a right to their beliefs and their tikanga. We in New Zealand First do not have any gripe with that. For that matter, any group—Māori or non-Māori—in this country is entitled to its view.

However, New Zealand First is concerned that those beliefs should not be legislated for in order to give credibility to them. Our concern is that the fact that this reference has been included in this legislation will give credibility to those beliefs. It is very important to note that there was an earlier intention to include a reference in the bill as to where fire came from, and that the Government agreed to exclude that.

The important issue for me is that the exclusion of those references would not affect this settlement or the effect intended by this bill. Of course, one could rightly ask whether their inclusion was something the Crown was happy about in order to give the sense, or feeling, to the claimants that they were getting something they wanted, with the Crown knowing that it would not be too much of a concern to the Crown.

But the question that needs to be asked is what the effect of including those beliefs in legislation is. In considering that question, we must look to the future. Are those beliefs what future generations of New Zealanders will have to believe in, even though they may not be of Ngāti Tūwharetoa descent? That is the major crux of the concern I am expressing. I just want to make it quite clear that we certainly do not wish to contradict the beliefs of Ngāti Tūwharetoa or of any other such group.

Progress reported.

Report adopted.

The House adjourned at 9.55 p.m.