Ngaa Rauru Kiitahi Claims Settlement Bill

This is the part that deals with the settlement of the historic claims. Interestingly, one of the opening statements suggests that this settlement is effected under the deed of settlement. Basically, it is saying that no other enactment in Parliament can get in the road of this settlement.

However, I refer the Committee to the contributions made earlier by the Hon Georgina te Heuheu and Mr Pita Paraone. They talked about the issue of whāngai—adoption—and, in particular, the issue of adoption outside the strict blood lines of Ngā Rauru Kītahi. This issue came up before the select committee and we did have discussions with the Minister. The Minister said tonight that perhaps it was something that would be dealt with at another time and that we needed to think of another way of doing this.

It seems rather strange to me that there can be a settlement of a grievance held by a group of people who have a very clear blood connection to another group of people who were wronged some time in the past, and that that settlement can then be shared by someone who is adopted into the family. I would like the Minister to explain why the Government feels that this will not be a problem in the future. It is all very well to say in this part of the bill that this is where it all becomes full and final, if, in fact, the gate has been left open and there is a feeling inside the settling group that something was imposed upon them. After all, that is why we are here in the first place.

I also want to enter in the Hansard record the other side of that story, which is that, quite clearly, Ngā Rauru Kītahi have accepted this part of the settlement. They have said: “OK, fair enough. The Government of the day insists on this. We want our settlement, and so this is what we are prepared to run with.” If that is the case, then the Minister will surely be able to assure the House of that particular fact. There is no point in creating new grievance inside a settlement bill.

Earlier this evening the Hon Richard Prebble said that some years out from now the actual cash amount being settled would seem quite small. What is most important here is the process that has gone on. Unlike other settlements, there has supposedly been a much better process here to reach this point. We are supposed to be certain that Ngā Rauru Kītahi are happy, comfortable, and completely accepting of the full and final nature of the settlement.

So it is not unreasonable for the Committee to point to this concern, and it would be reasonable of the Minister to reassure us about it. Because it does seem odd that Part 2, which refers to the meaning of Ngā Rauru Kītahi and what it is to be part of that group, and Part 3, which refers to the settlement of historical claims and miscellaneous matters, and makes it clear that no other Act could get in the road of this settlement, could cause quite a degree of angst among the claimant group.

I know about this from sitting at the select committee table and hearing Māori members with similar connections to their own iwi groups express quite vocally their concerns about the issue. It is not in any way nitpicking; it is very, very important. The Minister owes the Committee an explanation at this point, because it is undeniable that once this bill is passed, some rights will be lost.

I rise on behalf of the ACT party, and as members know, we are not members of the Māori Affairs Committee. I listened with a great deal of interest to the points made by Mr Brownlee, but I have to say that at the end of it I was not a great deal wiser.

💬 Gerry Brownlee: We haven’t had the questions answered yet.

I know, but I am asking the Minister in the chair, the Hon Mita Ririnui, because it appears to me there is a question about adoption, and what I am not sure about is whether the consensus is that people who have been adopted are included in the claimant group.

💬 Pita Paraone: They are.

I hear someone saying they are. Well, I am not sure they are, and I repeat I was not on the committee, but we have here, and have already passed it, a definition of who is in, and one has to be a descendant. So people who are adopted are not included. That would be my view. Then we might say they are included, because there is the Adoption Act, but clause 15(3) in Part 3 states: “Despite any other enactment or rule of law”, which would make it seem to me that maybe the Adoption Act is one of those laws covered by that clause. I would like to know from the Minister—and it is not just important to me in voting, but is fairly important to people who have been adopted, and other members—what the Government’s view is. Are adoptees included?

I can think of other situations—the Matrimonial Property Act; a wonderful piece of legislation that I have run up against a couple of times!—that can result in property settlements. Is that an enactment that has been ignored in terms of the words “despite any other enactment”? Is that one ignored? It may not be well known that as a result of the matrimonial property legislation, and descent, and the like, some people who own Māori land in this country do not have a drop of Māori blood in them. That is a fact; there are such people. Does this bill, when we say people have to be descended, mean we are overriding that legislation? If we are, that seems to me to be contrary to various principles that the House has adopted in the Adoption Act and that we have adopted in the matrimonial property legislation.

No doubt the Minister will get some advice from his officials, but I think that it is important at the Committee stage, especially as Mr Brownlee says the matter was discussed extensively at the select committee, that the rest of the members who were not on the committee can share that knowledge. I would like to know whether adoptees are in or out, and then I would like to know what the principle was in deciding that. I think that that is a perfectly reasonable question, and I hope the Minister will answer it, because it is not only important to me but obviously important to people who have been adopted, and important to their families, and all of the claimants.

I feel bound to stand up and take a call, simply because it looks like the Minister in the chair, the Hon Mita Ririnui, is not going to respond to the question that the Hon Richard Prebble quite rightly put. On the face of it, this bill does not include adopted children or whāngai, whereas, during the select committee process, the officials from the Office of Treaty Settlements were pretty adamant that they are included. So there is a real issue raised here.

It may be that my colleague Gerry Brownlee and I have raised the issue incorrectly. Maybe the Hon Richard Prebble’s view is right, because it seems that adopted children are not included in the provisions in the bill. The issue arose in the Māori Affairs Committee, because for the iwi Ngā Rauru Kītahi claimants, I understand, this was a key negotiation issue. They requested that, presumably, their settlement bill override the Adoption Act. I am not sure whether that is correct; maybe the Office of Treaty Settlement officials can give some advice to the Minister on it.

So at the iwi’s request it became a live issue. They seemed to agree with the point that Gerry Brownlee and I have raised. It seems absolutely illogical to us that, on the one hand, the bill sets out those who benefit on the basis of blood lines and descent but that, on the other hand, it also provides that someone who has no blood connection or whakapapa that links to Ngā Rauru Kītahi, either through any one of the hapū or through the eponymous ancestor, can still participate.

So this is a live issue, I say to the Minister. We thought we had some clarity on it in the select committee, but on the basis of the matters raised by the Hon Richard Prebble, I myself am confused. I think it is very important that someone clarify the situation of adopted children, because the issue will arise again. If adopted children are not specifically included in the settlement Act, some tribes will exclude them in the future anyway, despite the Adoption Act. Given the words “despite any other enactment”, the tribe would be quite within its rights to do so. The issue will come up again. It seemed clear in the select committee, but it is not clear now.

I ask the Minister to take a call and give us some clarity on the matter, otherwise we will be back in the House dealing with future settlement bills—although we may not be, because it is an issue we will get some clarity on when we are in Government in a few weeks’ time. The issue of who is to benefit is complex and serious. As my colleague Gerry Brownlee says, it may become the subject of further claims down the line, so it is very important that we get some clarification now as to whether adoptees are included.

I stand to take a brief call in response to one concern that I am aware of in relation to this part of the bill, and that is the rights or recognition of whāngai, or legally adopted children. There was considerable discussion amongst the members of the Māori Affairs Committee about the inclusion of legally adopted children. To some degree the representatives of Ngā Rauru Kītahi were also concerned, but after a discussion at the select committee we were able to point out to the representatives that the inclusion of whāngai, or legally adopted children, in this bill was in accordance with the Adoption Act 1955, in accordance with previous settlement Acts, and in accordance with the rights of adopted children under Te Ture Whenua Maori Act 1993. So there is a long stream of consistency in reference to whāngai, or legally adopted children.

The other thing we discussed with the representatives was the actual nature of their concern. Their concern surrounded the adoption of non-Māori children, by and large, but if we concentrate the issue on non-Māori children, then basically we also catch Māori children in the net, because in many cases a lot of the adopted children are Māori and non-Māori. We asked the representatives of Ngā Rauru Kītahi what the process would be, in the case of Māori children who have been adopted into certain families, to determine whether they had the whakapapa. We asked whether they would be required to submit their whakapapa to the trustees to receive benefits, or whether there was some other way of determining whether they were of blood line. To be quite honest, they were not able to answer that question, because there is no way of making that declaration. Many families adopt children and, by and large, they keep that information to themselves. They do not wish to have to account for their decision to adopt children. So it became a much more difficult issue to resolve in terms of their position, and it was understandable that the decision was made in relation to consistency with the Adoption Act. I understand from the representatives and from the discussions I have had with them since the select committee process in Wanganui that they have accepted that situation.

That was all very interesting, but it is news to me.

💬 Hon Mita Ririnui: You weren’t there.

I sat on the Māori Affairs Committee and I was there for the various processes related to the signing off of this bill, and that explanation has never been offered before. So I am a little intrigued to learn that Ngā Rauru Kītahi has itself accepted this situation. Notwithstanding that, I notice that clause 17 lists specific enactments that are not to affect the land in question: the Treaty of Waitangi Act, the State-Owned Enterprises Act, the Education Act 1989, the Crown Forest Assets Act, and the New Zealand Railways Corporation Restructuring Act.

I do not see the Property (Relationships) Act listed in that clause, and Mr Prebble quite rightly brought that Act into the argument. So I ask the Minister a simple question. If someone receives property as a result of this settlement and it is a decision of the governing entity to put some names on the title of that property, which is not uncommon, and if one of the people who are named marries someone or enters into a common law arrangement with someone, and that breaks down after 2 years, what will happen? The Government’s decree is that assets are split down the middle, but if the only asset is that person’s name on the particular title, what will happen? Will a court have the authority to add another name to that title, to reflect the share that the other party would then, under our law in this country, be entitled to?

Just to go back to the issue of legal adoption, I would have thought that under the whāngai system there was no problem, because most of those arrangements would be made within the particular iwi structure—in fact, probably within the hapū structure, or even within the whānau. But in the case of someone who was legally adopted, I find that a little bit hard to swallow. Let us say that the person I spoke of before, who has his or her name on a title somewhere, enters into a common law arrangement with someone who has three or four children—or two or one; however many it is—and decides to legally adopt them, and then after the prescribed period of 2 years it all turns to custard, as people say. What is the status of those children then? Are they then suddenly caught in the loop? They may have absolutely no idea of what Ngā Rauru Kītahi is all about. They may never have lived in the tribal district, and they may not ever intend to live in that district. Is the Minister honestly telling us that the governing entity of that particular iwi group will say that there is no problem, and that because those children’s names are on its roll, they are beneficiaries of whatever is produced as a result of the settlement assets being worked in a good, economic fashion, and that it wishes them good luck?

Part of the problem we have in all these settlements is the claim that is repeatedly made by iwi that their lands were dispersed and taken away from them. I worry quite a bit that with the acceptance of the 1955 Family Protection Act as it is applied here with the overlay of the Property (Relationships) Act that we have now, and with the great change in circumstances in New Zealand families these days, we will see quite a diminution of any particular ownership interest in lands and other assets. If the Minister wants to put it on the record that I am wrong, by saying that there is no problem with regard to this issue, then I invite him to do so.

The member who has just resumed his seat, Gerry Brownlee, is not wrong; he is just confused. The issue with regard to whāngai is very important to Māori. When Ben Couch initially tabled the first Maori Land Bill—which was a rewrite—in the House in 1978, a long process followed, ending in the Te Ture Whenua Maori Act 1993. Māori people, with great anxiety, a huge amount of consultation, and a great degree of angst, thought very carefully about the process of whāngai. Until 1955, whāngai as a concept—

💬 Hon Richard Prebble: I raise a point of order, Mr Chairperson. I apologise for interrupting the honourable member, but I do so because I actually want to hear him and I find that very difficult when Ministers come over here and speak in the aisle. I literally cannot hear Mr Tamihere, because Mr Barker is holding his conversation so loudly. I wonder whether he would mind holding his conversation in the corridor so that I can hear the contribution being made by the honourable member.

The CHAIRPERSON (H V Ross Robertson): I thank the member for his contribution and I ask members to take that into consideration. Generally, conversations are not to be held in the Chamber unless it is absolutely necessary. I suggest that members take them outside if that is not the case.

Until 1955, customary arrangements for both marriage and adoption were determined as a matter of fact before the Māori Land Court. So until 1955, through the Māori Land Court, adoption was allowed in terms of Māori cultural determinations by way of the concept of whāngai—to feed and to look after the child. At that time the applicable whakapapa was that of the parents who had embraced the child, and that child then took a beneficial interest in Māori freehold land interests. After 1955, Māori land law was amended to the extent that an adoption order was required. So a couple of dates have to be understood to get the status correct here. Between 1955 and 1993, unless one had an adoption order through the Department of Social Welfare clearly determining the parentage, a child could not participate, other than by way of will, in Māori freehold land interests. That is the first point of clarification.

The second point is that after 1993, Māori up and down the country determined that they would accept whāngai within the hapū-whānau groupings that looked after a child who was taken in. That, again, is a matter of fact to be determined in the Māori Land Court. So the right of a whāngai is now available without adoption order on Māori freehold title land only. If the land is general land, then the law of the Administration Act applies in the event of an intestate estate. If there is a will, then the law of the will applies. With regard to the application of the Matrimonial Property Act and the Property (Relationships) Act, it is clear that those two Acts have not applied to Māori freehold land interests.

That brings me to the third point, because—[Interruption] National’s spokesperson on Māori affairs should read the bill, or ask his colleague the Hon Georgina te Heuheu, who is sitting on the back bench, to fill him in on the reason. The House voted on these pieces of legislation. The member sat in the House on one of them. The reality is that there is an exclusion section with regard to both. Clarity is very important. The bill presently before us is not prescriptive with regard to Rauru Kītahi’s view of whāngai.

💬 Gerry Brownlee: I raise a point of order, Mr Chairperson. Is the member now telling us that the House has passed in recent times two very contentious pieces of legislation that will protect Māori assets but nobody else’s?

The CHAIRPERSON (H V Ross Robertson): That is not a point of order. It is a debatable issue, and the member has the opportunity to take a call.

The member was around when those pieces of legislation were being discussed in the House, and the fact that he was not awake is not my problem. The reality is that in respect of the application of the law under the present settlement legislation, in the event that the land assets are deemed to be Māori freehold land or a status declaration to that extent is sought in the Māori Land Court, matrimonial property law will not be applicable. However, the right of a whāngai will be applicable under the Te Ture Whenua Maori Act 1993.

Undoubtedly the policy determined by Rauru Kītahi’s governance entity will be the right one, so we should not be prescriptive in legislation such as this. The way in which the law presently operates in relation to this issue works well. However, in the event that a group wants to be quite definitive about the way in which it treats adoption, whāngai, and the like, so be it—let them put it in an agreement to be concluded between the Minister, on behalf of the Crown, and the claimant group. But I would have thought that the matter was as clear as crystal.

That was a worthwhile contribution, probably, from John Tamihere, but I do not know that it gets us over the hump we appear to be facing, purely from looking at the information before us—first of all, at the settlement bill itself, and, secondly, at the advice that the Māori Affairs Committee received, which I have now been able to get my hands on. I am not certain that John Tamihere’s explanations, clever as they sounded, actually helped my colleague and me.

We are looking at the bill, as was, obviously, the Hon Richard Prebble, and on the face of it the bill defines Ngā Rauru Kītahi, in terms of the underlying premise of who can benefit from the settlement, as whakapapa—blood lines. There is no doubt about that. Clause 13 appears to set that out very clearly. As I mentioned earlier, the rights of adopted children was an issue that, according to the advice given to the select committee, was raised by the claimants themselves in their submission. It was a key negotiation issue. They requested of the Minister in charge of Treaty of Waitangi Negotiations 2 years ago that the Adoption Act be overridden. That Minister declined that request. Some months later they again wrote to the Minister on the issue. The matter was discussed, and on 1 July 2003 the Minister wrote to Ngā Rauru Kītahi, explaining that while she was sympathetic to their concerns she still considered it inappropriate to use settlement legislation to override the Adoption Act. On three separate occasions, apparently, the seriousness of this matter to the tribe was reiterated.

The Office of Treaty Settlements requested the view of the Crown Law Office. Much as I would like the Hon Richard Prebble to help give some clarity here, because of his long experience in the law, I shall refer briefly to that advice. Part of the advice is that clause 13 defines Ngā Rauru Kītahi, and sets out that that means: “… the iwi, or collective group, composed of—(i) individuals descended from 1 or more Ngaa Rauru Kiitahi tupuna;”. The Crown Law Office makes the comment that, in short, the beneficiaries of the settlement are required to descend from Ngā Rauru Kītahi tupuna. The advice further states that under the Adoption Act legally adopted children are to be treated as equivalent to birth children. Section 16(2)(a) of the Adoption Act provides that upon an adoption order being made, the effect will be that adopted children are deemed to become the child of the adoptive parent, and the adoptive parent shall be deemed to become the parent of the child as if that child had been born to the parent in wedlock—which is slotting that child in as if he or she were a blood relative of the parent. The adopted child shall be deemed to cease to be the child of his or her existing parent, and be deemed to be the child of the new parent. In effect, the advice from the Crown Law Office was that legally adopted children would, under the bill as it stands, fall within the word “descended”.

So a very legitimate concern about the inclusion of adopted children having been raised on several occasions by the claimants, by the settling tribe, and it having been considered by the Minister, the Office of Treaty Settlements, and now the Crown Law Office, whose opinion basically is that adopted children fall within the definition of “descendants”, it seems to me to be clear that they are included. The Adoption Act is not overridden as the Hon Richard Prebble indicated. There is also an issue of the Human Rights Act.

I move, That the question be now put.

I am obliged to the last two members. I am not a member of the Māori Affairs Committee, but in reading the bill it does appear that the statements with regard to adoption are correct. The legal argument that both put up seems to me to be quite clear, and correct too. That is what we have said the adoption should be—that the children should apply. However, I think Mr Tamihere might be mistaken in his view that just because there are exemptions with regard to matrimonial property and Māori land, that necessarily means that all property created under this bill is exempt. It appears to me to be that Mr Tamihere—and I might be misinterpreting what he told the Committee—appears to be under the impression that property rights created under this bill are not affected. Well, I am not sure that that is so, because more property rights are created than just Māori land. In fact, quite considerable property rights are created here, and it would seem to me that the Property (Relationships) Act may well apply.

So I would be interested to know from the Minister in the chair, Mita Ririnui, whether the officials have turned their minds to that, because again, as Mr Brownlee pointed out to the Committee, we have to be very careful when we are passing bills of this sort that we do not in fact, for the best possible reasons, end up creating a further grievance and argument that is raised later. I would be interested to know whether these sorts of rights and property have been contested. No doubt they have been contested in some matrimonial property cases, and, for the sake of the claimants, it would be useful if the Minister would let the Committee know whether they have been—even though there is, as Mr Tamihere said, within the Property (Relationships) Act and in the property settlement legislation some provisions in relation to Māori land. We are not dealing here just with Māori land, are we?

In fact, we are dealing with quite considerable assets, including cash. So is that in or is that out? If one is a beneficiary and a shareholder in the cash—and it is $200 million, or so—and parts from one’s spouse, can he or she put in a claim against the person for his or her, say, one thirty-thousandth of that share? If they cannot, under what principle can they not, because there does not appear to me to be any provision here saying they cannot. If the matrimonial court is capable of making such a settlement, what will the effect of that be upon the claimants, and, again, given the rate of marriage break-up in New Zealand, and the fact that this settlement is supposed to last forever, what will its effect be in, say, 100 years’ time? People might think that that is a ridiculous statement, but people will look at this in 100 years’ time and say that 100 years ago it should have been obvious, with the rate of matrimonial settlements and the like, that this settlement would be completely diluted by the result of some other statute.

Hon Georgina te Heuheu: By the result of marriage break-ups.

Yes, over 100 years. This is supposed to be a settlement forever, is it not? Well, if it is, is that an aspect that has been taken into account? If it has, I would be interested to know what the Minister thinks its impact would be, and if it has not, the House ought to record that this was a matter that the Government did not turn its attention to, and, no doubt, in 30 or 40 years’ time, it will be the basis of yet another claim.

Part 3 agreed to.

Part 4 Cultural redress