Ngaa Rauru Kiitahi Claims Settlement Bill

Before turning to Part 2, I note that I was very interested in the speech by the Hon Richard Prebble. Unlike the comments that were made by his colleague Stephen Franks, what he said gives pause for a lot of thought. However, as a member of the Government that introduced the format for the Treaty of Waitangi Act 1975, he ought to recognise that the earlier attempts to settle this claim were not measured against the Treaty of Waitangi and its principles—and I am not saying that that was right or wrong. The jurisdiction for this process is the Treaty of Waitangi and its principles, whereas in the earlier attempts that was not the case. Part 2 deals with interpretation, and—

The CHAIRPERSON (H V Ross Robertson): It is to do with definitions.

Yes, definitions—I am coming to that, absolutely. I turn to clause 13, “Meaning of Ngaa Rauru Kiitahi”. National MPs have made a number of comments on this particular issue. It is certainly right that there should be some clarity around those who are entitled to benefit from a settlement. This part raises the issue of adopted children, and it includes the issue of whāngai, as well. I am sure my colleague Gerry Brownlee will take a call on this part, because we have raised this issue on a number of occasions. Basically, the entitlement in terms of these settlements and in terms of the tikanga of most tribes, if not all, is based on blood and inheritance—blood lines, whakapapa lines. That is clearly set out in subclause (1) of clause 13.

The issue of the position of adopted children and whāngai—particularly where whāngai who have been brought into a family have no blood connection to the family concerned—was raised in the Māori Affairs Committee. The Adoption Act overrides any argument claimants may as to who may benefit, and so, we are told, does the Human Rights Act. But clause 13 states: “In this Act, Ngaa Rauru Kiitahi … means the iwi, or collective group, composed of …”—and it sets out various categories, all of which depend upon the issue of descent. It names the hapū, which come under the umbrella description of “Ngaa Rauru Kiitahi”, and it also includes any whānau, hapū, or group of individuals who come within those hapū categories. Hapū, of course, are made up of individuals who have clear descent lines from the original tūpuna, which in this case means Ngā Rauru Kītahi tūpuna. This clause includes a recognition of persons who have exercised customary rights by virtue of their descent lines, and so on.

So it is an issue for tribes that, no matter what is said in this legislation, the reality is that those who have no direct whakapapa links to Ngā Rauru Kītahi are, by virtue of adoption and being whāngai, included anyway.

I want to acknowledge, as I did in my second reading speech yesterday, that the issues the member has just raised are significant. As she indicated, this is not the first time they have come up in relation to a settlement bill.

They were discussed at some length, I believe, at the Māori Affairs Committee, the time and place in the end for us to address issues relating to the conflict, if you like, between children with whakapapa to a particular iwi—in this case, Ngā Rauru—and the provisions of the Adoption Act and indeed the Human Rights Act. It is perhaps, then, when we are reviewing things like the Adoption Act, which we are reviewing currently, that there is an opportunity to look at it in its wider context. There will no doubt be diverse views around the House at that time about the issues raised.

I want to take a call with regard to clause 13. I am probably just as guilty as anyone for not having picked up this issue during the select committee deliberations, but on looking at the meaning of Ngā Rauru Kītahi I see that according to clause 13(1)(a)(i) it means “individuals descended from 1 or more Ngaa Rauru Kiitahi tupuna; and (ii) every individual referred to in paragraph (a)(i); and (iii) every individual who is a member of a hapuu referred to in paragraph (b);”. Paragraph (b) then goes on to list all those hapū that quite clearly the negotiators on behalf of the claimant group have agreed should be included.

I personally have no difficulty with that, but I do have some difficulty with subclause (2), which states: “In this section and section 14, Ngaa Rauru Kiitahi tupuna means a person who exercised customary rights—(a) by virtue of being descended from—(i) Rauru;”. That is fine; in the make-up of iwi groups, I understand that there is the iwi, and then descended from that are the hapū. My real concern, though, is with subparagraph (ii) of clause 13(2)(a): “a recognised ancestor of any of the hapuu referred to in subsection (1)(b);”. So I pose the question of whether there is an ancestor of a particular hapū listed in clause 13(1)(b) who is not a descendant of the tupuna known as Rauru. If there is such a tupuna, then I have to ask how has that tupuna become part of this settlement.

As we know, hapū descend from a clearly defined tupuna, but in terms of subclause (2)(a)(ii) there is the suggestion that there may be a recognised or eponymous head of a particular hapū who may not have descended from the tupuna known as Rauru. So the provision does pose some questions as to the possible entitlement of a hapū whose eponymous head does not descend from the tupuna described as Rauru. Perhaps the Minister might take some advice from his officials and explain how that situation has been able to get to this stage. Otherwise, I think it is a compliment to the iwi of Ngā Rauru Kītahi that they are able to outline a number of their hapū whom they wish to have included in this settlement.

I note, for instance, that there are a couple of Ngāti Hine hapū, and I suppose that if I had the time I would be able to make some connection with the Ngāti Hine in the north. But I am sure that with Ngāti Hine Waiatarua, and Ngāti Hine Waiata there is probably some connection between those two hapū—so there should be if in fact they both descend from the tupuna known as Rauru. However, if there is a hapū included in that list whose eponymous head does not descend from Rauru, then one needs to ask how come that hapū is included in this settlement. Other than that, I do not think we have any truck with the definitions that have been outlined, but we would ask the Minister to take a call to address that issue.

I think the honourable member made a good point, and I would like to hear from the Minister. But I was stunned to hear that New Zealand First does not have any problems with the definitions apart from that, because I am very interested in clause14(1)(a), which deals with the meaning of the historical claims—it “means every claim”, and it states: “(i) is, or is founded on, a right arising—(A) from the Treaty of Waitangi or the principles of the Treaty of Waitangi;”. Now, I was under the mistaken impression that the New Zealand First Party was not going to vote for any more legislation that contained that phrase—“the principles of the Treaty of Waitangi”—for a very good reason, because what does it mean?

Every member knows that because of the passing this bill, some meaning will have to be given to that phrase, so I ask the honourable Minister in the chair to tell the Committee exactly what is meant by the statement: “or the principles of the Treaty of Waitangi”. I ask the Minister what they are, and I ask him to please set them out clearly. Obviously, he must know what they are—otherwise, he would not be asking this Committee to vote for the provision. Surely we cannot be being asked to vote for something the Minister does not know the meaning of. If he does not know what it means, perhaps his officials could tell him, but the ACT party did not vote against the first part, partly because I thought that if we were going to make an apology, then it should be unanimous. But I advise the Minister that I cannot see how any real parliamentarian can possibly vote for this part unless we all know what it means.

I want to make it quite clear—and I have been a member of the Māori Affairs Committee—that I have no idea what that phrase means. Well, I have some vague ideas, but I think it is an elastic concept. In my time in the House it has completely changed, so I would like to have from the Minister a very clear, succinct statement, which would be very helpful for people coming along later, so that we all know what the House of Representatives has voted for tonight. So could the Minister please take a call and tell the Committee what is meant by “the principles of the Treaty of Waitangi”, and perhaps New Zealand First Party members could also explain to me why they are voting for this part, when I understood that one of the things they are campaigning on around the country is that they are opposed to this sort of loose phrase being included in legislation.

I have to say that I disagree with Mr Peters about a wide range of things, but I think the statements he has made in criticising the introduction of this sort of loose terminology into the statute book are correct. We have criticised the courts for some of the bizarre decisions they make on those issues, but when we introduce a phrase of this sort, we are inviting judges to take our jobs, to start being members of Parliament, and to write the law. If we are going to pass that clause as it is written, we are inviting trouble in the future, and no MP can complain if the principles of the treaty turn out to be something that will come as a great shock to all members of Parliament.

It would be very helpful—it would certainly help the ACT party to decide whether we should vote for this section, or against it—if the Minister would simply rise and, since he is asking us to vote for the principles of the treaty, set out for the Committee what those principles are. I am sure that a well-prepared Minister would not have come here not expecting this question. I am sure he was expecting it, and I would like to think that he has prepared a succinct statement. That would be very helpful. I can see that some of the Māori members of Parliament are also looking forward to hearing from the Minister of the Crown an authoritative, clear statement—[Interruption] The member has me even more worried. He says that I am at fault. If I am at fault, it is high time this was put a stop to.

I accept your call to speak, Mr Chairman, with great reluctance, because I thought that the question put to the Minister by Mr Prebble was extremely reasonable. I am absolutely staggered that the Minister actually sank further into his chair when the bell rang, to avoid any impression that he might have been about to stand and address this particular question before the Committee. I find it, much as Mr Prebble does, a bit alarming that this settlement appears to be founded on matters arising not only from the Treaty of Waitangi and the principles of the Treaty of Waitangi but also from common law, including aboriginal title or customary law. I am not sure exactly what the confines of that might be.

It concerns me a little that the Minister is so very reluctant to deal with this aspect of the bill. We know he is a relatively new Minister in this role, but one would think that he might have asked officials: “Why are we doing this?”. I am sure that Ministers in all sorts of other areas ask their officials that question, although I am not convinced that the Minister of Finance asked his officials that question prior to reading the Budget. It may be that the Government simply does not ask officials what is going on but asks them what they want it to do. If that is the answer, that is fine, but the Minister should let the Committee know. I would think, though, that he would have asked: “Why are we doing this?”, and got the history.

I am a bit staggered, actually, to learn a lot of the history tonight. I feel somewhat guilty that during the select committee process I did not find out the many aspects of this matter of which Mr Prebble spoke in the Committee tonight. It is easy when a particular story is put in front of one just to accept that everything is absolutely kosher. I suppose one learns that perhaps one cannot always believe the civil servants. I have to say that the latest missive from the Public Service Association causes me a great deal of concern about the quality of the advice that goes to any Government. I cannot believe how hell-bent that organisation seems to be on undoing the very people it is supposed to represent.

I come back to the issue that has properly been raised by Mr Prebble, and I ask the Minister whether he intends to make an explanation.

💬 Hon Mark Burton: I am continuing to listen to the member with interest.

This is the Committee of the whole House. This is the part of the process when members get to ask a Minister a question. I have asked the Minister a question, and he has said he is still listening. Does the Minister want me to say it a little louder?

💬 Hon Mark Burton: No, certainly not.

So he has clearly heard the question but knows it is impossible for him to answer. If it is not, perhaps he would indicate—where has he gone? I cannot believe it. He has now sunk so low in the chair, for fear that we might imagine he is rising to answer the question, that we cannot even see him. I cannot believe that. If he is going to answer the question, he should. I do not mean to make light of this, because it is not funny.

💬 Hon Mark Burton: Stop misleading the listeners.

The Minister must indicate whether he will take the call and give the Committee what should be a very simple answer.

💬 Hon Mark Burton: In the fullness of time.

In the fullness of time the Minister will take a call. Well, I have to say that the time for discussing this particular bill seems to be growing longer by the minute, because if the Minister leaves us without answers, he will leave us in the position of having continually to ask the same question. So I will sit down now.

I guess it is a bit disappointing. I was waiting with bated breath, as well, to hear the Minister in charge of Treaty of Waitangi Negotiations recite what the phrase “the principles of the Treaty of Waitangi” in the bill before us means. National members certainly asked that at the Māori Affairs Committee, and although we were given a response of sorts, I do not think anybody was necessarily satisfied.

I am not endeavouring to get the Minister out of the hole he seems to have dug himself into by not taking the call to give a reasonable response to what I think are reasonable questions, but I do have a thought on the matter. Again, it has nothing to do with the question the Hon Richard Prebble asked New Zealand First as to why it would support the legislation given that confirmation came yesterday that under the treaty policy of the Rt Hon Winston Peters New Zealand First would delete the phrase “the principles of the Treaty of Waitangi” from all legislation.

I note that Richard Prebble was going to get to his feet. He may or may not recall that the phrase “the principles of the Treaty of Waitangi” actually first appeared in the 1975 Treaty of Waitangi Act, which was brought into law by a Labour Government of which the Hon Richard Prebble was a member. Much as some of us may have difficulty now with the phrase “the principles of the Treaty of Waitangi”, I would have thought that a legitimate response might be that it actually forms the jurisdiction for these claims and, therefore, for these settlements. That is the jurisdiction laid down in the Treaty of Waitangi Act 1975, as the Hon Richard Prebble knows or should remember. Until there is a change to that, for those of us who wish to see some resolution of these historic injustices it is, in my view, the only jurisdiction we have.

Perhaps the Rt Hon Winston Peters recognises that, as well, although looking at some of his statements it seems to me that he has missed the point that this phrase first appeared in the 1975 Act. He keeps referring to, I think, the State-Owned Enterprises Act 1986, which is patently wrong. It would be really great if those who think they know the origin of this phrase could get it right. I could still prove to be wrong about it, but I do not think I am. That is where the phrase originated.

Standing here as a member of the National Party, which supports the settlement of historic injustices, I have difficulty understanding how we as a party can support a settlement if we do not also recognise the jurisdiction under which these claims are filed. The source of that jurisdiction is the 1975 Act.

That still does not get the Minister off the hook, though. Having sat on the tribunal for some years, I have a view as to what “the principles of the Treaty of Waitangi” might be. The Minister has the legacy of the Rt Hon Geoffrey Palmer, who set some principles when he was in Government, and maybe the Minister could even confirm whether they are the principles now being referred to when we are asked to pass this bill into law. In any event, it would be good—for the sake of those who are listening, if not for ourselves—if the Minister would give his understanding of the basis on which we are now being asked to support this legislation to settle the historical claims of Ngā Rauru Kītahi.

I thought that it would be only proper for me to respond to the questions put by the ACT member. I would like to refer the ACT member to the first and the third readings of the last claims settlement bill that came before this House—that is, the Ngāti Tuwharetoa (Bay of Plenty) Claims Settlement Bill. I recall the looks on the faces of the officials when I stood to offer the support of New Zealand First’s vote for that bill. In that first reading debate, the ACT member may like to read particularly the comments made by my colleague the Hon Brian Donnelly, where he explained the reason for New Zealand First taking its stance, in spite of the inclusion of those words à la the principles of the Treaty of Waitangi. During the second reading of that same bill, the ACT member in the House at the time questioned the stance taken by New Zealand First. So my colleague Dail Jones submitted an amendment that requested the deletion of those very words from the bill, and—surprise, surprise—the only two parties that objected to that amendment were ACT and National. So I think it is a bit rich for those members to then question the stance we are taking and, in particular, the policies that we are expounding with regard to the principles of the Treaty of Waitangi.

I raise again the issue of the Minister explaining the principles of the Treaty of Waitangi and how they came to be in this bill. I hope that he does take a call shortly. I notice that there are other members in the Committee who would like to make that explanation on behalf of the Government but appear to be out of favour with their whip at present. They are just having a discussion, and some people may hear that discussion going on in the background. I hope it is successful and that they are able to take a call.

I make it clear that, from the National Party’s point of view, it does not really make a lot of difference what the Government might think this phrase means, because we are very clear about what it means. We are clear about the reason why we are supporting this particular settlement bill. As we have said before, with the Hansard record being an important reference these days and part of the historical record—and Mr Prebble showed us tonight just how important that record actually is—I think it is worth making the statement for the record as to why we support this particular bill.

Interestingly, earlier this evening, Mr Franks from the ACT party put most articulately a view of article 2 of the treaty that fits very, very well with the National Party’s view of how the treaty should be considered when it comes to matters of settlement. It is simply a matter of saying that people had a right at a particular time that was not respected by the Government of the day, and we now go into a process of redress because, in hindsight, we still respect the right. It really is, I think, about as simple as that. It is not about partnership or non-Māori having some obligation to Māori; it is about all New Zealanders, from 6 February 1840, being able to expect that their interests in property and other treasures—if we want to use that term—would be respected by the Government.

Rather than take the Committee’s time and repeat everything that Mr Franks said, I simply refer the Committee to the speech made by him earlier this evening, because I think it made most clear the position the National members take in considering why we support a bill, what we mean, and what we understand the bill to mean when the Government states that it is taking this action with regard to rights arising from the Treaty of Waitangi and its principles.

I just wanted to listen to get the scope of what members were actually asking, but I think I could refer them back to 1987, when the lands case in the Court of Appeal elaborated the principles of the treaty at that time as required by section 9 of the State-Owned Enterprises Act 1986, as the member previously referred to. In that judgment the President of the Court of Appeal, Sir Robin Cooke, wrote of the principles of partnership, active protection, and redress. In 1989 the fourth Labour Government, drawing on the principles that had been developed to date, including past judgments from the courts, published a set of five principles. That is why I am mystified that members refer to their lack of knowledge of these principles, as though they had never been spoken of and had never been recorded in this House.

💬 Gerry Brownlee: Well, you keep changing them.

Well, on 30 April 2002 the then Attorney-General, the Hon Margaret Wilson, advised Parliament that these principles are what the Government considers to be relevant. I refer the member to Hansard, Volume 600, at pages 15813 to 15814, where the Attorney-General stated: “Those principles were published by the fourth Labour Government in 1989, to assist the Government when making decisions about matters related to the treaty. In summary they are as follows. First, there is the principle of government: the Government has the right to govern and to make laws. Second, there is the principle of self-management: iwi have the right to organise as iwi and, under the law, to control their resources as their own. Third, there is the principle of equality: all New Zealanders are equal before the law. Fourth, there is the principle of reasonable cooperation: both the Government and iwi are obliged to accord each other reasonable cooperation on major issues of common concern. Fifth, there is the principle of redress: the Government is responsible for providing effective processes for the resolution of grievances, in the expectation that reconciliation can occur.” I think that clearly articulates the position.

I think that the Minister has shown us the opposite—how difficult the situation is—but, first, let me take up the challenge made earlier. The first statutory use of the words “principles of the Treaty” was in the Treaty of Waitangi Act 1975—I was not actually an MP then; I know that people think I have been here since the ark, but I actually came here in November of 1975—but that phrase was only in the preamble.

The preamble of that Act stated it would: “… provide for the observance, and confirmation, of the principles of the Treaty of Waitangi by establishing a Tribunal to make recommendations on claims relating to the practical application of the Treaty and to determine whether certain matters are inconsistent with the principles of the Treaty”. That was the first statement, which was assented to on 10 October 1975. The Labour Government then suffered its biggest defeat in its history about a month later.

The second reference is in the State-Owned Enterprises Act—I think in section 9. There was some statutory comment, but the comment by the Chief Justice was obiter; it was not part of the judgment. There has never been a judgment by our courts that has made the statements that the Chief Justice made in passing. The comment was not agreed to by the other judges and, interestingly enough, it is not agreed to by the Government. Chief Justice Cooke said that the treaty was a partnership, whereas if we listened to what the Minister said, we heard him give us five principles but they did not include “partnership” in them. So we have an interesting situation whereby the Minister has said we are following what judges say, but he has also said: “Here are five principles.”

I ask the Committee, then, where those five principles actually appear in the treaty. They do not. I tell the Minister that, obviously, there are principles in the treaty—[Interruption] I would prefer it if the members did not conduct a conversation in the Chamber. They may not be interested in this matter, but some of us are.

There are three clauses in the treaty. In my view, the principle in clause 1 is that it establishes sovereignty by the Crown. It is not that there are two states, two Parliaments. It actually establishes sovereignty of the Crown. Sovereignty is ceded to Queen Victoria.

The ACT party really likes clause 2, because it guarantees to Māori, iwi, and hapū their property rights, and that is, I believe, the principle that this bill is actually trying to redress. The third clause granted Māori all the rights of British citizenship, which, one has to remember, in 1840 were very considerable rights. They mean the right of equality before the law.

Those are three simple principles. If the Minister were to say that those principles are what he supports—that he supports sovereignty, property rights, and equality before the law—then the ACT party would not have any difficulty in going along with that.

But that is not what he has given us there. That statement made by Ministers has no legal authority at all, bears little relationship to the Treaty of Waitangi, and is the sort of waffly statement one would expect from a Labour Government. Where on earth does the treaty state “feasibility of cooperation”, or something? Where does “self-management” appear in the treaty? Those statements are not there.

Those matters there might be very worthy matters—it would be nice if the Labour Government did believe in self-management; I did not know that it did as I have never seen any sign of it; I thought it made a busy-body State—but they show the problem in successive Governments putting up the phrase “principles of the treaty” without being prepared to state in legislation what they actually are.

I have to say to the New Zealand First Party that I have seen Mr Peters’ attempt but, frankly, I do not like it. I think—

I move, That the question be now put.