Ngaa Rauru Kiitahi Claims Settlement Bill

On looking at the preamble, I see that it certainly follows the kinds of recitals to be found in treaty settlement bills. I recall my colleague Dr Mapp, I think in relation to the Ngāti Tūwharetoa (Bay of Plenty) Claims Settlement Bill, making a comment about whether we should look at making the preambles a little bit more aspirational than they sometimes are. National supports the bill but, as I think I commented last night, we certainly learn more as we go. I do not think there is any harm in that. The basic format of these bills has not changed since the 1990s, when Sir Douglas Graham set the format in place. We have moved through a number of settlement claims now—although not so many in the last 6 years—and we have learnt things all the time, and National members now think that maybe this could have been done in a different way.

I acknowledge that the preamble is a very important part of the bill. The Minister in charge of Treaty of Waitangi Negotiations might give some thought—well, this Minister may not have time to think any more about it, because once we have an election there will be a different Minister in the chair; it will be somebody from our side. The preamble is important. National acknowledges that. I imagine that the claimant group in question has had considerable input—claimants certainly used to—on the way these recitals are written. We must keep in mind that a settlement bill, while it brings to a conclusion a certain phase of a tribe’s seeking to have injustice righted, by the same token also represents a beginning. For every tribe that reaches a settlement, it is an important beginning, and it is important that the bill in some way reflect that. We all like to believe that once a settlement passes into law, the tribe will be able to look forward and move on, leaving injustice behind, and having concluded with the Crown an agreement it is comfortable with.

So this preamble probably does the job, but in future we may give some thought to whether we can make the opening statements, so to speak, of a settlement bill more aspirational. I am sure my colleague Dr Wayne Mapp will have something more to say on that, because it is important. Legislation like this is recognition by all of us of the important step a tribe has taken and the courage it has shown in finally concluding a settlement—in finally putting the burden of the weight of injustice behind it and moving on. That is essentially what these bills do. They form the basis for a better future, the building blocks with which a tribe can further its own economic development. So it is very important that in these bills we get the right feeling in relation to the aspirations of the tribe—not only what its members want to achieve but also, certainly, what we as parliamentarians seek for them.

As the Committee moves through the bill we will come to other matters that National members want to raise. National signalled those matters last night. We want to look at the relevant clauses more closely, and particularly at schedule 12. We will certainly make some serious comment on that. We look forward to the debate proceeding. We support the bill, but we think that improvements can be made and we hope the Ministers will listen. I know that the Hon Mark Burton has said he has taken on board the Opposition concerns, which means, I suppose, that he will try to address them.

I want to pick up on some points that have been made by my colleague.

I have to say, generally, that the preamble in this instance is relatively restrained. Some preambles have constituted essentially something of a rewriting of history. In this particular instance the preamble sets out to a large extent the oral traditions in relation to boundaries, the places where the Ngā Rauru Kītahi live and have lived, and their relationship with those places. Those are, of course, quite legitimate things to put into a preamble. That is the first thing a preamble should establish: the relationships of the claimants with the place. That is a legitimate and reasonable thing to put into a preamble.

The second thing a preamble must state is the nature of the breach that has caused the need for a settlement. By definition, some breach of property rights, some injustice, must have occurred before a settlement takes place. National, of course, initiated the whole process of the Taranaki settlements, of which this is one, some years ago. So we acknowledge that breaches did occur.

I am somewhat concerned, however, about the acknowledgments set out in recital (15) of the preamble, in particular. I raised this concern last night in the second reading debate. My concern is that this paragraph presents, in essence, a one-sided view of history in which the Crown is completely wrong, and the claimants are completely right. I do not believe that that is an accurate description of what occurred in 1860. It is not accurate to state: “the Waitara purchase and the wars that followed constituted an injustice and were, therefore, in breach of the Treaty of Waitangi …”. It is certainly true that those events did involve some injustices. That part is not in dispute. But to say without qualification that the totality of the events constituted an injustice misdescribes the historical record.

The causes of the wars were multiple. Misunderstandings occurred. There were different views as to the extent and scope of the sovereign power. That is not, I would have thought, really in contest. Yet the way the preamble, and particularly recital (15), is written gives no sense of the nuance of history. I guess that is the problem.

When we put these things into the legislation we would not have needed much more to be done to give at least some sense of nuance in recital (15). That would have been a more honest approach.

It is noteworthy—and I refer to this specifically, because I know that Mr Pita Paraone will do so—that the leader of New Zealand First has called for a more honest examination of the nation’s history in both pre-European and post-European times. Frankly, I think he has a point there. I believe that a preamble written in the way this is written simply does not acknowledge any of the nuances. It would have taken only an additional paragraph or paragraphs to have addressed that effectively in a way that provided a sense of weighing the reality of the history. It would have been more accurate to say that the Crown created injustices through the way it acted. It is not accurate to say that the Crown’s seeking to impose sovereignty through the Taranaki region—because this is effectively how it now reads—was of itself wrong. To say simply that the Waitara purchase and the wars that followed constituted an injustice does not adequately or properly recognise the events that actually took place back in the 1860s. That issue needs to be more fully considered in future settlements—a more dispassionate approach to New Zealand’s history that recognises the broader context in which these events actually took place.

That is probably my major concern with the way it is written.

Of course, it raises a much broader issue. I have taken a particular quibble, if you will, with recital (15), but the issue is much deeper. As this nation goes forward, it cannot be realistic or, indeed, be of good grounding to say that everything that occurred in the 1860s was the fault of the Crown, that the Crown was entirely in error, that Māori were in every single case the aggrieved parties, or that the war was simply an act of Crown aggression and that was all there was to it, and that the Māori were simply the hapless aggrieved partner going about and minding their own business when, suddenly, they were attacked by this overwhelming Crown force. In reality wars have multiple reasons. Was it actually reasonable for Māori to be raising armies in a country governed by the Crown and where there was a single sovereignty? Is that the way we would really expect a modern nation State to exist? Is that a proper analysis of our history?

I think that, in reality, the fact that the wars occurred bespeaks of itself Māori having difficulty coming to terms with the reality of sovereignty and the fact that they had actually lost the power to raise armies, and to have whole regiments of troops and the like, to resist Crown sovereignty. Certainly there were disputes—I am not doubting that—and certainly there were injustices, but I query whether war was the right answer, because it then precipitated war on the other side. So I think that the way these settlements are being written does not do justice to the events themselves.

I might contrast it to the Ngāi Tahu settlement. In the Ngāi Tahu case, there was absolutely no doubt that the Crown had breached a contract. It simply had not set aside the 10 percent that it was duty-bound to under the land purchase contract. There was a complete failure on the part of the Crown. We can say in the case of Ngāi Tahu that Ngāi Tahu were, in essence, suing on a breach of contract, which is a self-evident fact.

Wars that are in some respects in the nature of a civil war have much more complex origins. They also have a sense of misunderstandings about what had occurred in 1840 through the treaty. I think our history needs to be honest enough to recognise that complexity, but I do not believe that this preamble does so. That is not to doubt that there were injustices for which there ought to be compensation, but when we are passing legislation—because that is what we are doing today; writing it into the law of the land—we do need to be a little more honest with what actually happened, because otherwise we do not have a solid foundation on which to advance forward as a nation.

Surely, that is what the whole point of these settlements are—to advance forward as a nation; the peoples of this nation going forward. We cannot do that with a revisionist approach towards history. We suggest to the Crown negotiators and to Ministers—irrespective of which Government they are in—that a more honest approach needs to be taken to truly advance forward and to close this chapter of our history.

I do appreciate the opportunity to hear Dr Mapp speak on these matters. I think that we have had some of the most interesting analysis over the past 3 or 4 months on these vexing issues that could be imagined. I think it is a great shame that nothing is being reported of the thoughtful reconsideration that has been given to the role of the settlements, the treaty, and the language.

But I am concerned that it is all a waste of time because, however wisely we analyse this bill or however much we might want to change it, during the debate on the last bill of this kind for which I put forward amendments to change it, the amendments were ruled out. They were ruled out because of Assistant Chairperson Simich’s statement that an amendment that purports to amend an agreement reached between the Crown and other parties is out of order in a bill intended to give effect to that agreement. In other words, that ruling, made in 2003, makes this whole Committee stage nothing more than members flapping their gums. I do not say that members should not have time to do that, but I wonder what this Committee thinks it is doing when it ratifies these agreements and debates them in a Committee stage—which is supposed to be the members’ chance to correct and amend them—when the Chairperson has ruled that members cannot amend them.

It is a little odd, because the Māori Affairs Committee itself has proposed some amendments and, in this case, they are amendments to the very section that we are looking at. The select committee has reframed the Māori text. So I think it is time that that ruling was reconsidered, because it means that ACT cannot vote for this part. We too believe that this recital is wrong and we think that it would not take very much to correct it. But as we have found from experience, no amendments will be accepted, because this preamble is part of what has supposedly been agreed between the Crown and the iwi in question.

Dr Mapp, I believe, probably would not have stated it as bluntly as I would have, but he is absolutely right that this bill projects a view of the treaty that is utterly untenable. Article 2 of the treaty was an assurance of classical English property rights. The Māori version was an assurance not only to rangatira but also to the ordinary people that they would all have the rights of a king in his castle. To use that very eloquent English description, the peasant in his hovel has the same right to exclude the king as the lord in his castle has. That was a novel and quite astounding assertion at that stage of human legal development. That kind of property right was being held out to Māori in the treaty, and they agreed to it.

Instead, what we have in this part of the bill asserts a kind of mystical power to the treaty, or a set of values that the Crown was assumed to have signed up to, that no Government could ever sign up to. No Government could ever sign up to an agreement to hold people indemnified for the consequences of losing their land. People often sell land. In fact, the whole treaty was supposed to ensure that they could sell their land instead of having it stolen or seized from them by force of arms.

Here we have a craven Government solemnly promising people 160 years later that it will make amends for the inevitable accidents of history. What would be the fate of the United States if it was still apologising for Sherman’s March in the Civil War? And this stuff happened at the same time as that. Where would any modern country be if it spent its time examining its navel, rewriting history, and wailing over grievances—[Interruption]—which are very real grievances and there is a good reason for them, but it is not a good reason to be rewriting history—and then producing a bill like this, which actually does not make amends. It gives the shadow of making amends and a whole lot of spurious rights.

I want to talk in a few moments about some of the points raised by Stephen Franks, but before that I want to compliment Dr Mapp on his contribution to the Committee and on his comments relating to his concerns about the veracity of the preamble, particularly recital (15). It is interesting that he chose to use the example of the Ngāi Tahu settlement as being such a clean-cut sort of arrangement. He may be interested to know that when the dissidents from Parihaka were put in custody, they were first incarcerated in Dunedin until, some time later, a helpful group from Rapaki offered to contain them on an island in what is currently called Lyttelton Harbour—those groups being, supposedly, more friendly to the Crown, but, ultimately, in the position of having to settle grievance, as well.

I do agree that in these recitals history should be well recorded and give ample weight to all the views and motivations around at the time. The problem we face here, of course, is that to get picky about that right now, at this stage, deprives those who are expecting a settlement, and who have negotiated that settlement in good faith, the outcome they are looking for. I know that that was not what Dr Mapp was intending. He was signalling that in a very short period of time, when a different administration is handling these matters, preambles such as the one in this bill will be dealt with in a different way.

It is worth noting that when a bill like this is being dealt with, increasingly the Hansard record becomes important. The motivations of MPs in supporting this arrangement, or in pointing out things they find are not quite right, can be well understood by those who might look back on it in some years to come. I suggest to Mr Franks that, in some part, that is an answer to his concern. Obviously, every party cannot be at every select committee, looking at every piece of legislation. But, ultimately, Parliament has to try to deal with things in a way that recognises the fairness intended in any law before it. In fact, we do that in this settlement process for the very reasons Mr Franks outlined—for the reason that article 2 guaranteed to Māori the same property rights that all British subjects understood they had. If that were not the case, there would be no basis on which to bring treaty grievance claims to the Government for settlement. If the House were to consider that to its fullest extent, we could be left to conclude only that the Māori Party will have very, very soggy ground to stand on in future if it continues to be a participant in the process of this House, because there is no room, if these settlements are to progress, for any suggestion that anybody other than the Crown has some obligation to settle grievances around land issues.

I conclude my remarks by saying that although the National Party has reservations about a number of aspects in the textual arrangement of this bill, we do not think it would be fair to vote against it, because although we can all argue the history, history is something that has a perspective applied to it.

💬 Jill Pettis: Because there’s an election looming.

Members have just heard the Wanganui fishwife scream across the House that an election is looming. Everyone knows that. The National Party has never voted against a settlement bill that has gone through the due process of consideration by this Parliament. It has indicated that there is only one arrangement of those the Government is entering into that we will not support. This bill is not one of them. These settlements are, in fact, a legacy of the former National Government and a testament to our commitment to the settlement process.

I thank the speakers for their contributions to what I might call a very minor part of the bill, and I also thank Dr Wayne Mapp for his 10 minutes’ history lesson on matters totally irrelevant to it. As his colleague described, he was probably being overly picky. I remind the previous speakers that, basically, the preamble is the summary of Ngā Rauru Kītahi’s claim, describing the tribe’s rohe. It is also a summary of the negotiations it entered into and agreed to with the Crown.

In the Māori Affairs Committee, we had a technical matter to deal with—and I think the ACT member Stephen Franks touched on it—in relation to the use of the Māori language. As a select committee—all the parties on it—we agreed that there were some matters in the Māori text that, when translated, we did not totally agree upon. We sought to amend them, but, because of technical reasons, parliamentary counsel could not just make amendments; it had to remove the entire text. Following consideration by the committee, the text was replaced with what was considered unanimously to be the correct text. So, this is basically what the preamble is designed to do—as well as, of course, to include the title and commencement date of the legislation.

I just needed to make that clear to previous speakers, because this is one of those bills that did not receive a lot of controversy from other claimant groups that also share boundaries with the claimant group. For that reason I think that we are dealing with one of the very few pieces of legislation that we can describe as having a positive process and outcome. I did hear Dr Wayne Mapp refer to what he considered to be a clean-cut arrangement on the Tainui and Ngāi Tahu claims. My recollection, in having dealt with those two claims, is that the preamble was not unlike the preamble in this bill. So let us say that they are all clean-cut.

I make this contribution on behalf of New Zealand First. Essentially, we are talking about what the Minister in the chair, Mita Ririnui, referred to as “a very minor part”, but I think that its importance is much greater than the import the Minister might put on it.

The preamble provides a background. If we are to talk about the issue, which Mr Mapp referred to, that it did not quite catch the facts of the matter—firstly, I would suggest that the preamble would be much bigger than the rest of the bill and, secondly, it would also provide a much more detailed picture that might come back to embarrass not only the Crown but the claimants as well. While those are insufficient reasons not to have the preamble included, as it stands now it does cover the more important issues.

The member from ACT made an allusion to Sherman’s attack being revisited, as if that is what we are doing in this whole process. I remind him that the tangata whenua, the subject of that attack, did not have the luxury of a treaty, but I believe that his allusion does highlight the whole difficulty, as I see it, in terms of the process. Comments made from this side of the Chamber do have some validity. However, we are denied the opportunity to contribute to that part of the process because, by the time the bill comes to this House and goes to a select committee, much of that part of the work on the claim has been done.

If people want to start questioning the contents of what eventually ends up in the preamble, then they need to be part of that process. But, having said that, I think that those who negotiate on the part of the Crown have been signalled the concern that this side of the Chamber has about the whole process. The Government may wish to consider those thoughts with dealing with future claims.

The member Mr Mapp referred to the aggrievedness of particular parties. I say that Māori certainly felt aggrieved, and we need to look at that aggrievement in the context of those times. If my recollection of that part of New Zealand history is correct, then in respect of the attack at Parihaka only one party really adopted what one might regard as a “going to war” stance. So if the preamble as set out does any injustice, it does so to the claimant group, because the preamble does not quite identify the true intent of those who initiated the attack, nor does it give a true picture of the effect the attack had on the people of Ngā Rauru Kītahi.

It is also said that we need to be honest, but I say that honesty in this case may prove to be of some embarrassment to the Crown. In a way, the preamble protects both parties, and the protection is not just on one side of the ledger. The preamble provides a good outline of the situation the claimant group endured at the time and the course of action taken by the Crown, and it reflects the Crown’s acknowledgment to the claimant group.

I want to comment on the Māori text and, although I take on board what the Minister had to say, I am conscious that during the debate on the last settlement bill before the House, when I called for an accurate—in my view—amendment of the English text into Māori, he responded that it was just a matter of semantics. So I remind the Minister that we need to exercise some consistency, because I have always maintained the view that the use of te reo text will provide a learning instrument for those learning the language in the future.

I want to take a brief call. I was listening very carefully to Pita Paraone and was most interested in what he had to say about the preamble to the bill and what it did not contain. I did not have the privilege of sitting on the Māori Affairs Committee, so if the member gets another opportunity to take a call, I would be interested to hear an explanation. If the preamble is lacking in its description of what actually happened to Ngā Rauru Kītahi and the history of the area, why was that not inserted into the preamble during the select committee process? I would genuinely like to hear about that.

Firstly I want to address the point raised by Stephen Franks about Speakers’ rulings. I listened to him with some concern because I have put forward a Supplementary Order Paper with regard to Part 4 and was therefore a little concerned that my amendment might be ruled out of order. I am pleased to say that when I look at Speaker’s ruling 102/4—

The CHAIRPERSON (Ann Hartley): Your amendment is not out of order.

Thank you, Madam Chairperson. I note that the ruling basically says that one cannot change a settlement agreement reached between the Crown and other parties, and I would be very wary if the House in dealing with legislation could not change it as long as it did not interfere with the terms of the settlement. Of course, it does not do that. I thank you, Madam Chairperson, for your assurance that my amendment is not out of order.

I want to look at the preamble to the bill and the comments that have been made about the retrospective analysis of history and the appropriateness of doing that. I note that the essential points of the preamble are in recital 15 where the Crown acknowledged to the Waitangi Tribunal in its interim response that: firstly, the Waitara purchase and the wars that followed constituted an injustice and were therefore in breach of the Treaty of Waitangi and its principles; secondly, that the confiscation of land, as it occurred in Taranaki, also constituted an injustice and was therefore in breach of the Treaty of Waitangi and its principles; thirdly, that the confiscation had a severe impact upon the welfare, economy, and development of the iwi of Taranaki; fourthly, that in general terms the delays in setting aside reserves contributed to the adverse effects of the confiscation; and, finally, that events relating to the implementation of the confiscation leading to the invasion of Parihaka in 1881, the invasion itself, and its aftermath constituted a breach of the Treaty of Waitangi and its principles.

Firstly, I should state that I acknowledge that it appears from the recitals that the Crown acknowledged those issues to the Waitangi Tribunal, so that they were non-contested matters. I commend the Crown for doing that. I have no problem with looking back in terms of history and doing a reassessment of the events that happened. Clearly, the process in the Waitangi Tribunal through the historians that it employs is to try to reach an accurate view of what went on. To some extent the Crown is prepared to admit certain events so they are not contested. In other circumstances they are contested, and it is the job of the tribunal to sort out just where the facts lie. That is an important role, and I do not see it as a biased rewriting of history at all, even though we look at it in the light of a new understanding, perhaps, of what was happening at the time.

There is an underlying factor here that I think we do not take much account of in terms of the relationship that the Crown had with Māori at the time. It is something I think we need to recognise, and I see a failure to appreciate it, particularly in the National Party, the New Zealand First Party, and the ACT party. I see those parties really coming at these issues in terms of Māori grievance on the basis that the Crown arrived, the Crown in one way or another assumed sovereignty, and therefore the Crown through its Government imposed certain things, and the Māori resistance was therefore somewhat unlawful. I am not sure whether they go so far as to believe that the Crown reaction was over the top, which is effectively what this is talking about in terms of confiscations—that effectively the reaction was over the top. Nevertheless there is this simple understanding that the Government was the Government, that it had the power, and that resisting the power, and Māori action were exactly the same, and should be treated the same, as any New Zealand citizen who resisted the authorities and resisted the police.

One of the things we tend to lack in all this debate is to understand that the coming of particularly the British to New Zealand was the conflict, or the “bringing together” to use a more impassive term, of two sorts of governance entities. The Crown in the British tradition is one that had a Government ruling on a national basis, and the people. In the Māori tradition one did not have a Government that ruled all the people. There were a number of iwi who were regional groups that had a governance role over the people. So here we had a “single Government ruling its people” system confronting a governance entity that was disparate and comprised a number of different iwi.

The question is how we amalgamate that. What is an appropriate way to amalgamate those two sorts of governance relationships? What has tended to happen—and I see this from the parties I mentioned—is an assumption that the governance of the country then became the governance of all people, and iwi did not play any part in the process. That was largely because the sort of iwi groupings in that sort of governance authority had no parallel in terms of the British justice system that was then imposed. The closest one could get is local authorities, but, then, local authorities were subject to central governance. Therefore, it was a question of how iwi and the iwi governance structure then related into this process. I think that is what the treaty was endeavouring to do.

I see a big distinction between article 2 and article 3 of the treaty. Article 3 states that Māori individually would have the same rights and duties as British citizens. That meant that as individuals Māori had the same relationship with the Government as any other individual. That is why I think it is legitimate to say that all New Zealanders are equal and there should be one law for all, and all that sort of stuff that we hear from National members. I agree with that, but what they fail to recognise is that article 2 of the treaty protected the place of iwi as a distinct authority that was unique to the New Zealand context. It is really the issue of how the iwi structure, as it existed at that time, relates to modern New Zealand that is the issue we are always confronting.

It seems to me that we have to, and we ought to, acknowledge that iwi as a whole have a place that is somewhere between the governance of the whole country and the people as individuals, and that the iwi protection in article 2 is something that we need to somehow acknowledge and recognise as we move forward as a nation. Therefore, in the blending of the two cultures, or the two nations—two peoples in one nation is perhaps the best way of phrasing it—we need to recognise that there is a place in terms of iwi. I do not think that at one extreme it is a replacement of governance so that, effectively, it is a two-tier system where Māori have their own authority. That is an apartheid-type system, and I do not think that is what it intends. But neither do I think it means that iwi are simply no better than any other social grouping—the local club, or society, or someone else who might get some sort of grant from the Government. Iwi have a particular role in terms of their own people that needs to be acknowledged. I think it needs to be acknowledged in some sort of partnership function.

So I come back to the preamble. When the Crown starts to take away the rights of iwi in terms of their own property and their governance structure, and starts to destroy that, as happened in these instances, then that is where things get out of line. I think it is quite appropriate for the Crown to look back now, looking at a fresh approach in terms of an understanding of the place of iwi in traditional New Zealand, and say that iwi were destroyed and that there was an undermining of the governance authority that was protected by the treaty. So this acknowledgment is quite appropriate, and it is appropriate to look at it from a contemporary basis and to say that these were wrongs that were done and we need to put them right. Of course, this is a settlement agreement and therefore we are looking historically. I am also very interested in looking at the future and asking what is the place, then, of iwi in that sort of structure in today’s New Zealand. That is what I think we should be focusing a lot of our debate on, and I am certainly keen to see that progressed as we talk further about the place that iwi should have within the structure of New Zealand governance.

I want to take just a short call to respond to the question from the member for Whanganui. My comments were made in the context of the implication by the National member—which was, in a way, confirmed by another speaker—that the apology itself seemed to be over the top, and the implication that there should be more accuracy in the preamble. My response was that if we did make it more accurate it could be more embarrassing to both parties to the agreement.

I want to comment on the remarks made by the speaker before last. I remind him and the people in this Committee that we should not place too much emphasis on the word “iwi”, given that those who signed the treaty were of hapū. I would suggest and even argue that the concept of iwi is not a Māori concept but is something that came after the missionaries imposed their will on this country. Be that as it may, the preamble may in some people’s eyes seem over the top but, given the historical events that affected the claimant group, I think that it is in order.

Preamble agreed to.

Part 1 Acknowledgements and apology by the Crown to Ngaa Rauru Kiitahi, and preliminary provisions