Te Arawa Lakes Settlement Bill

I again take this opportunity to take a call surrounding the Te Arawa Lakes Settlement Bill. The scope of the bill is indeed quite large in terms of iwi and hapū and their geographical interests, ranging from the settlement of Maketū, reaching around the bluff to Newdick’s Beach, following through to Otamarakau and down through to Te Kaha, as far south as Tongariro. It also takes on board the lakes in Rotorua and, obviously, this settlement is designed to hand the ownership of the lakes back to Te Arawa. I think it is important to acknowledge that area and the hapū that work within that area.

When we talked about the agreement that was struck back in 1922 between the Crown and Te Arawa, we also recall that during that time Te Arawa generously postponed claims to the lake beds during World War I and gifted a percentage of the payment to assist the Crown during the Depression. They repeated that gesture in support of our country during World War II. The Crown acknowledges the spiritual, cultural, economic, and traditional importance of the lakes and their resources to Te Arawa. The Crown also acknowledges, for example, that it failed to legislate for a significant number of fishing licences for Te Arawa in 1908, when it promoted legislation to acknowledge the problem of hardship. The introduction of exotic fish species also significantly depleted the indigenous species that Te Arawa depended on for food, hospitality, trade, and koha.

The preamble to the bill acknowledges Te Arawa’s historical and cultural affinity with the lakes. The transfer of the lake beds has guaranteed free public access for recreational activities, such as swimming, boating, fishing, etc., along with the preservation of the existing rights of commercial users and the owners of boatsheds and jetties. Although the 1922 agreement is not challenged by this settlement, this legislation will settle all of Te Arawa’s historical claims related to the lakes at any time between 1840 and 1922, including any claims related to the 1922 agreement.

Negotiations between the trust board and the Crown began in 1999. Throughout the settlement negotiations, both parties recognised that their mandate extended only to lakes-related matters, and that any settlement reached would not settle Te Arawa’s historical grievances in matters unrelated to the lakes claim. I acknowledge the hard work and effort made by all those in Te Arawa, who faced many obstacles and challenges, but preserved their patience and dignity. Without their hard work, it would have been much more difficult to reach such a significant point as we have reached with the bill that is here today.

Let us be very clear that the bill settles only claims made under the Treaty in regard to the lakes until 1992 and any issues that Te Arawa may have, either now or in the future, concerning the annuity provided to the trust board under the 1922 agreement. In doing so, this legislation clarifies that the Crown settlement offer does not settle any claims under the Treaty that do not concern the lakes or the annuity. Te Arawa maintain the opportunity to negotiate with the Crown for the settlement of their historical grievances under the Treaty in relation to land and any other matters unrelated to the lakes and the annuity.

The bill also involves the apology, which is equally as important as the financial redress, as it moves forward by recognising the mana of Te Arawa in respect of the lakes. More important, the bill commences the vital option of rebuilding the relationship between both parties. The apology is important to the Crown, because it acknowledges the breaches of the Treaty in respect of the lakes and extends an open hand, by way of an apology for those breaches, to Te Arawa.

An annuity redress is recognition of the fact that the Crown’s actions in respect of the lakes breached the Treaty. The annuity redress is additional to capitalising the annuity and settles any remaining issues post - 21 September 1992.

The cultural redress provided by the Crown in the bill is arguably the most significant aspect of the settlement. The cultural redress is provided to meet the cultural interests of Te Arawa in respect of the lakes, and it recognises their mana over the lakes. Significantly, the cultural redress recognises their close association with the lakes and provides measures to ensure their ownership of the lake beds and their continued involvement in the future management of the lakes.

We are talking about a Treaty claim. Although National would normally be in favour of a Treaty claim, I want to raise a number of issues with the Committee this afternoon.

The issue of major concern to my colleagues and me is that of mandate. The Te Arawa Māori Trust Board said that 93 percent of Te Arawa had said that they agreed with the Te Arawa Lakes Settlement Bill. That remark has put a few people crook, because there is strong evidence that that is not actually so. One would think that when the Te Arawa Māori Trust Board said 93 percent of Te Arawa agreed with the bill, they would point out that only 9,000 people are registered with that board. Out of those 9,000 people, only 4,000 took part in the process. That is only about 10 percent, because the going kōrero—the going story—is that between 40,000 and 60,000 people whakapapa to Te Arawa in the last census. Putting about the story that 93 percent of those from Te Arawa have agreed with the bill does not seem to me to be very good.

There are issues about ownership. We heard from Ngāti Whāoa that they were given ownership of Lake Ngāpōuri. However, this bill, in settling a Treaty claim, gives the ownership of Lake Ngāpōuri to the Te Arawa Māori Trust Board. Again, I have some major difficulty with that, and we will explore it as we go through the process.

The removal of the jurisdiction of the courts and the Waitangi Tribunal must be looked at. Not in any other bill—Treaty settlement or otherwise—has this happened. There were questions about the model. Submitters have said that the model was based on a Government template from the Office of Treaty Settlements, rather than on a specific, indigenous model from Te Arawa. Instead, the Office of Treaty Settlements said: “Here’s a template. We’ll give this to Te Arawa, and they can sign it off. Then we’ll shoot up the road and give it to Tainui, and they can settle their river claim based basically on what the Office of Treaty Settlements has come up with.” It is absolutely ridiculous.

The annuity question is of major concern to me. In 1922, £6,000 was set aside. No one has really been able to answer the question about what that money was for. Was it an out-of-court settlement, or was it because Te Arawa gave ownership of the lakes over to the Crown and the Crown gave back £6,000 as an annuity every year? When I asked a number of questions about this—what the Treaty breach was; what we were trying to fix up here—I was told that, lo and behold, the Treaty breach was because inflation had not been taken into account and there had been no rent review, or no review of the annuity on a yearly basis. I never read that in the Treaty. I did not know that it was a breach of the Treaty if one did not do that, for goodness’ sake! It does not talk about annuities in articles 1, 2, or 3, and it does not talk about inflation, or anything of the kind.

💬 Pita Paraone: It’s the principles.

That is right—it is a principle. New Zealand First is absolutely the guns on the principles of the Treaty of Waitangi!

I want to join the debate at this point, partly to encourage all members to ensure that they have actually read the preamble to the bill. It is a useful starting point for understanding why we are here. Some members have read it thoroughly, and others, perhaps, have not had the opportunity to do so yet. As my colleague Dave Hereora illustrated, the preamble lays out a historical account of this settlement, and it has formed an important part of the basis of the agreement between Te Arawa and the Crown.

I want to pick up on a couple of points that Mr Henare raised, and I think they were raised last week when the discussion on the preamble was commenced by Mr Brownlee. Indeed, on the question of mandate, firstly, the matters came up during the second reading, and, for that matter, came before the select committee. There has been considerable discussion around this question of the legitimacy of the mandate.

It has to be noted, perhaps first and foremost, that the iwi and hapū that opposed the Te Arawa Māori Trust Board’s mandate, in their submissions to the Māori Affairs Committee—and my colleague Mr Flavell referred to them in his second reading speech—generally appear themselves not to have any formal mandate on which they were acting in making their presentation before the committee. It is an interesting dilemma for members to consider, whereby a properly mandated body was being challenged, before the committee, in its proven mandate by a small group that had no mandate on which to act. I urge members to consider where the justice of claim to proper representation therefore sits, in that regard.

I stress that the mandate the trust board has developed has been properly accepted. The process was extensive and is a well-trodden path in other previous settlements. It includes: multiple hui ā-iwi—seven, I understand, in this case; proper submission of the deed of mandate to the Crown; a public consultation on that deed; proper consideration by a range of officials; and, ultimately, formal acceptance of the mandate. It is important that members who were not part of the select committee are aware that the Waitangi Tribunal relatively recently considered the question of the trust board’s mandate, in relation to application for an urgent inquiry by some of the members who also appeared before the select committee. I tell members that the tribunal upheld that the mandate was collectively determined appropriate to deal with the complex, overlapping customary interests in the lakes, and has been well-maintained. I emphasise that the mandate has been well-maintained throughout the extended period of negotiation. I have no doubt the mandate recognised by my predecessor the Rt Hon Sir Douglas Graham was appropriate for the negotiation of the settlement of all of Te Arawa’s claims to the lakes, and that it remains as strong today.

On the question of ratification, Mr Henare quite rightly visited that. It is an important question in any settlement, and is one that often comes up at this point in the process of considering legislation. Firstly, perhaps it is a little misleading to look at the bald census figures, and Mr Henare referred to some. I think the generally held view is around 40,000—that is the figure that is often said to refer to those who whakapapa to Te Arawa; some say a little more, and so on. But we should bear in mind a number of things: firstly, that figure is all of the people, including those under 18—of which there are a considerable number—who are below voting age. If we take off those, we are left with around 23,000 people of voting age in Te Arawa. So it is about 58 percent of that total.

Secondly, with regard to those who choose to register to participate in the process, well, that is a choice. So it is important that we are confident, and I think we can be. I think Sir Douglas Graham went through a very clear process to ensure his confidence, and I remain satisfied of it. There has been a full opportunity for all those who are eligible to participate, should they choose to. Of the 51 percent who did register to participate, 94 percent approved the settlement. That is a very high level of approval by any measure.

I reassure members, because it is a legitimate issue to raise, that the ratification rate for Te Arawa lakes is comparable with ratification rates in previous settlements. For example, the Ngā Tahu settlement results were almost identical to Te Arawa, with a participation rate of around 50 percent and an approval rate of 94 percent, as opposed to Te Arawa’s at 51 and 94 percent. Back in 1995 the Waikato Tainui settlement voter turn-out rate—in other words the participation rate—was only 40 percent with 65 percent approval. Yet, as we have seen, these two other examples have endured. I want to give that reassurance to members.

Finally, Mr Henare also raised the matter of the removal of jurisdiction of courts and the Waitangi Tribunal in this legislation. I reassure him, and other members, that that is normal and typical of what occurs in settlement legislation, because it is a necessary part of ensuring that the end result is full and final.

Tēnā koe, Madam Chair. Kia ora tātou, tātou e hui nei i tēnei pō. I did take the Minister’s advice and I read the whole lot of the preamble, very well. I read it a couple of times and tried to pick out a couple of points to refer the Committee to.

Firstly, I say there was probably a hope, over a hundred years ago, that the matter of the ownership of the Te Arawa lakes was fully and finally resolved. But then if we look at the track record, we see a little differently. So let us just look back at some of the detail. On taking the Minister’s advice, I found the preamble told me that in 1909 Te Arawa went to the courts to seek clarification of the ownership of the lakes. The Crown disputed the ownership issue. In 1912 the Supreme Court upheld Te Arawa’s right to have claims to the ownership of the lakes investigated in the Native Land Court. The Crown, according to the document, used stalling tactics—like not providing survey plans to the court—and that meant the application was not heard until 1918. In 1920 the Crown approached Te Arawa to negotiate a settlement of the claims to ownership of the lakes.

In 1922 Te Arawa and the Crown reached an out-of-court agreement on the ownership issue. That agreement had a provision for an annuity of £6,000 a year, and no provision in the agreement for the annuity to be reviewed. Over time the value of the annuity paid to the Te Arawa Māori Trust Board diminished to a point where it did not make any significant contribution to the affairs of the board. Of course, Mr Henare raised the issue in respect of inflation. Before and after the 1922 agreement, the Crown and local government assumed responsibility for regulating activities, including discharges, that impacted on the lakes. Those included the milling of native timber, farming, and the discharge of human effluent. The result of all of that is that Te Arawa are getting back a contaminated site. I should be happy; unfortunately, I am not.

That is a brief history in terms of what is in the preamble, so it is not surprising that of the 20 submissions on the bill to the Māori Affairs Committee, 18 were against it. I attended a number of the meetings held where people expressed concerns about the offer and the conditions of settlement. But as one of the lawyers put it—and in response to the Minister’s kōrero—to the people, if Te Arawa did not take the deal, they could not expect to have the issue considered again for many, many years. He said they should look at what had happened to Te Whakatōhea, and that if they did not play the game, they would go to the back of the queue. So let us just look at that. I think the Minister and Mr Henare have covered the issues about the participation rate and so on. I tend to agree with Mr Henare about participation, but I hear what the Minister is saying. The bottom line is that the deal put to our people was to take it or dip out. Of course our people were going to vote for the deal in that sort of scenario.

So what is the deal? There is cultural redress, with the transfer of the lakes to the new Te Arawa body, and also $2.7 million for financial redress and $7.3 million in annuity redress, which is around the capitalisation of the annuity payments provided for in the 1922 agreement and the settlement of any annuity issues. The deal also includes an acknowledgment of breaches of the Treaty and an apology.

Let us put the deal into a context. It is acknowledged by most commentators that settlements are always going to be around 1 percent of the true value of claims. It is acknowledged that all of these settlements are set against the Tainui and the Ngāi Tahu settlements, where the ratchet clause means that both of those tribal nations will get more money if the total set aside for Treaty settlements exceeds $1 billion. What is the magic about $1 billion? It is something called the “fiscal envelope”, which was rejected by Māoridom following hui up and down the country some 10 years ago. Is the fiscal envelope still alive? Hell, yes—$1.3 billion to be exact. That is the total set aside to be available for settlements between 1994 and 1996, from memory, to 2010.

To put that figure further in context, I will say $771 million is set aside in 2006 for NH90 helicopters, $200 million was set aside in 2003 for Tranz Rail, there was the Air New Zealand bail-out of $885 million in 2001, $620 million was set aside in 1990 for the Bank of New Zealand bail-out, and so on. We can add to that the notion around tourism—the fact that tourism is a major part of the Te Arawa make-up—an industry of over $200 million each year. So there are some huge inequities here, and those need to be considered throughout the length and breadth of our discussion.

The select committee identified some key issues that the Minister alluded to—for example, whether the Te Arawa Māori Trust Board had the mandate to negotiate on behalf of tribes. My answer would be that where tribes gave a mandate, yes it did. But there are questions regarding those tribes that are not affiliated to the trust board—we heard about those in the select committee—or those where no hui were held, such as Ngāti Whāoa. The Crown’s agenda has always been to get a settlement, so that the claimants do not come back. Did trust board members consult regularly with the tribes they represented? That is absolutely an internal issue, but it remains very questionable. Did the trust board consult in any ongoing way about the progress of all of the confederation? One would have thought that should be the case for the non-affiliated tribes. The answer, from my perspective, is that it did not consult them.

In respect of the Government’s models—as proposed in the preamble to the bill—the Te Arawa Māori Trust Board had a series of hui, it had a wānanga, and it decided on one model. It produced a document—it was called a “discussion document”—that had one model for consideration. The “discussion” was not actually about a choice of models but the acceptance of the model, because without a model there is no settlement. As reported in the select committee, the debate did not really take place. Had it taken place in respect of governance models, the likelihood would have been that possibly there would be more buy-in.

The explanatory note of the bill states that negotiations were “… conducted in good faith and in a spirit of co-operation and compromise:”. Unfortunately, I reject that, in terms of what I saw and experienced throughout the whole process. The second point is that “it is difficult to assess the loss and prejudice suffered by Te Arawa”. I also reject that; that is able to be done. The third point states: “it is not possible to compensate Te Arawa fully for that loss”. I think that is accepted in light of the thinking of the benefit of the whole nation, but one would have felt that we were a little closer to the mark if we had put up the amount set aside—as for all settlements. The fourth point states: “in forgoing full compensation”—and here is the catch—“Te Arawa intends to contribute to the development of New Zealand:”. I ask about Te Arawa’s contribution to the nation. As outlined in the document, they have given more than enough, in terms of going overseas and contributing by way of the tourism package for New Zealand. Surely we can match up there.

The final point states: “taking all matters into consideration, the settlement is fair in the circumstances.” That is an unfortunate statement at the end, because one would have thought that taking all things into consideration, first of all the amount could be considered in the light of the bigger picture and, secondly, from my perspective the process used to get us to that point needs serious consideration. The hope will be that we will contribute to addressing issues around Treaty settlements for the ones that come before the House in the future.

Finally, throughout this debate in the Committee stage, there will be a number of issues raised that I have set out on my Supplementary Order Paper 57, and I am sure they will contribute to robust debate. Kia ora tātou.

I have taken the advice of the Minister, the Hon Mark Burton, well before this debate on the Te Arawa Lakes Settlement Bill, and have read the preamble very carefully. The first point I want to make relates to clauses 13 to 19. It seems to me that this negotiation illustrates just how this Government has gone so slowly—not only on this particular negotiation, but on other ones. As Mr Flavell said, the preamble makes very bad reading. In 1989, when the Te Arawa Māori Trust Board entered into preliminary negotiations about direct negotiations with the Crown and then right throughout the late 1990s, up until 2006, negotiations were conducted at a very dilatory pace.

That was the first point I was going to make, but my friend Mr Flavell, who is one of the MPs in this place one should always listen to very closely because he is a very sensible member, has raised another matter that gives me cause for great concern, and that is the abuse of the process and the style of negotiations by the Government; it is essentially saying to Te Arawa: “Take it or leave it.” That seems to me to be nothing more than duress and I promise members that if that is, in fact, the style of negotiation that was employed by the Government and its lawyers in this case, this will not be an end to discord between Te Arawa and the Crown. I have rich experience of negotiations between Māori and the Crown over the years, and unless loose ends are tied up, unless negotiations are honourable, unless negotiators go the extra mile to ensure that there is a final settlement, things will come undone. [Interruption]

I heard Mr Paraone of New Zealand First interjecting, and I simply say to him that I cannot get over the fact that New Zealand First supports this bill—but the only thing that is consistent about New Zealand First is its inconsistency. That member is supporting the bill, but his bench mate Mr Woolerton is, in fact, promoting the Principles of the Treaty of Waitangi Deletion Bill. The bloodcurdling explanation in the explanatory note of Mr Woolerton’s bill obviously has no impact on his bench mate, because Mr Woolerton is seeking to have deleted from all settlement legislation of this kind the very clauses that that honourable member is seeking to have retained. That is utterly confusing and utterly inconsistent.

In dealing with the preamble and looking at the negotiation, the third point I want to make is on the question of mandate. Several members on the Opposition side of the House have raised mandate questions, and in my opinion the report of the select committee is deficient. I acknowledge that when one is dealing with settlement legislation, the scope for debate is very narrow and I refer members to the commencement of the select committee report—the English version commences at page 17. It states that we have very great constraints on us when we are looking at Treaty settlement legislation, but nonetheless one of the issues we can look at is the issue of mandate, and some very serious questions of mandate arise on this particular settlement.

A number of submitters have questioned the mandate of the trust board, and I hear what the Minister has said, that there was at least one application to the Waitangi Tribunal, which dismissed the urgent application. But I wonder whether the committee, which has a very real responsibility to look at these issues, has, in fact, analysed the evidence. Page 20 of the select committee report states: “The trust board does not believe that any changes to the settlement are warranted on the basis of the concerns of Ngāti Whāoa.” The trust board says that it did not really think too much of Ngāti Rangitihi’s point, and that Ngāti Rangitihi’s submissions were not really worth the paper they were written on. The Office of Treaty Settlements was satisfied that the trust board had made a commitment to involve all the iwi and hapū in negotiations, and Te Puni Kōkiri noted that the hui-ā-iwi were well advertised. But nowhere in the report, other than reciting the actual submissions on the part of various people, can one show that the committee itself was truly satisfied that the mandate process was secure.

Tēnā koe, Madam Chairperson. I want to make a contribution to this part of the debate on behalf of New Zealand First. We in New Zealand First certainly had an issue about mandate, but as part of the select committee process we have to accept that the members of Te Arawa, particularly those who do not support this settlement, had the opportunity to participate in this process. If people choose not to participate, we cannot continually use the argument that the figures, in terms of those who participate, are not great enough to consider this settlement being advanced. Although we are disappointed at the figures and they could be higher, at the end of the day we have to accept that those who have chosen to vote have made their intentions clear.

Secondly, in terms of recognition of the Te Arawa Māori Trust Board, of course there will always be a dissenting voice. We have noted that in whatever settlements come before the House, there has been dissension amongst iwi members. As those of us who have been involved in serving our people outside of this House well know, 90 percent of the people whom we set out to serve are the ones who are our biggest critics. This bill is no exception.

It has been commented that no complaint about the process of negotiation has been expressed by the mandated body. That has been clearly stated, particularly before the Māori Affairs Committee. Someone has to make the decisions. In this case the Te Arawa Māori Trust Board is the mandated group that has made the decision to accept this settlement. I take on board some of the comments made by the previous speaker, Christopher Finlayson, in terms of how the negotiation processes may have taken place. As I hear more and more about the settlements, particularly those that come before this House, one has to be concerned about how that process is being conducted. However, at the end of the day the mandated group accepted the final negotiation.

I was very surprised that members of the mandated body have accepted the removal of jurisdiction. Although the Minister has given a good explanation as to why that clause is included, I should say that a lot of responsibility rests on the advisers of the trust board to advise their client to accept that clause. I noticed that the advisers were rather young compared with a whole lot of other settlement groups, and they will have to carry that responsibility on their shoulders should things go awry.

As the member from the Māori Party commented, people are happy about getting the site back, but they are not so happy about the contamination, and that issue will be addressed as we go through the bill. In response to the comment about references to the principles of the Treaty of Waitangi being included in this bill, I will certainly make comment on that on behalf of my party when we come to that part of the bill. Kia ora.

I understand the kōrero from e tōku nei tuakana, i tū ake nei i mua i ahau. [my older brother who stood up just before me.]

I say to the Minister in the chair, the Hon Mark Burton, that I want to concern myself with recitals 13, 14, 15, 16, and 17 in the preamble. In particular I want to ask about this statement in the preamble: “(15) In December 1998, the Crown recognised the mandate of the Arawa Māori Trust Board to represent Te Arawa in negotiations for a settlement with the Crown. Terms of negotiation specifying the scope, objectives, and general procedures for negotiations were signed by the negotiators appointed to represent the Board in March 1999:” I am wondering whether the Minister can tell the Committee what the initial offer was, as opposed to the offer accepted some years later down the track. Why does the preamble further state, in recital 18: “The Crown and the Arawa Māori Trust Board initialled a draft deed of settlement on 15 October 2004. …”, which is some 6 years after the 1998 mandate that was recognised by the Crown?

I do not want to harp on too much about it, but this annuity business is still bugging me. How does it come to a figure that just so happens to be $7.3 million when the figure for cultural redress is $2.3 million, which makes a nice, tidy sum of $10 million? Interestingly, the figure is not $10.793.26 million, it is just $10 million, which leads me to believe—and I am not a conspiracy theorist by any stretch of the imagination—that the fiscal envelope is still hanging around. It is just that these days it is called the multi-year appropriations, or maybe something else. So I ask the Minister in charge of the bill, the Hon Mark Burton, what the story behind the annuity is. How was that established? How was the annuity calculated? Was a formula used to calculate the capitalisation of the annuity from £6,000 back in 1920-odd, to $7.3 million now, and how far out did that annuity go? If we were not having this discussion now, what would have been the annuity in the year 2020, starting from that period? What would it have been if it had been capitalised out from then, and backwards, as well?

I know that one can lead a horse to water but one cannot make it drink and that there will always be the difficulty, even in general elections, that not only do people have the right to vote but also they have the right not to turn up on the day and vote, and I take the point made by Pita Paraone. There are some problems with this settlement. It is not as clean or as smooth as a number of other settlements have been. I am very, very worried that 10 years or 15 years from now our offspring will be arguing about the same issue. If that is the case—and no one can see into the future—it will be a sad day in regard to what I consider to have been a bit of a rush job in terms of the template that has been used. I know full well that this same template is being used to knock Tainui into line in terms of its river claim. I would be very, very surprised to see any Tainui settlement being different from the one in front of us.

I move, That the question be now put.