Te Arawa Lakes Settlement Bill

Part 1 of the bill sets out the purpose, and the background to the settlement. It includes acknowledgments of the apology given by the Crown to Te Arawa, it records the intention of Parliament that the provisions of the bill are to be interpreted in a manner that best furthers the agreements expressed in the deed of settlement, and it defines various terms. It also provides for the settlement of the Te Arawa lakes historical claims and the Te Arawa lakes remaining annuity issues, and a range of other miscellaneous matters, such as perpetuities.

I will take this opportunity also to refer briefly to Supplementary Order Paper 56 in my name, which deals with a number of minor, technical matters. Some of these sit in Part 1, so I will take this opportunity to explain them all once, then be done with it.

The Protected Objects Amendment Act was passed by this House on Wednesday, 2 August this year. That Act amends the Antiquities Act 1975. Amendments to clauses 2, 11, and 57 of this bill, and a new clause 101, are required as a consequence of changes in terminology enacted by the Protected Objects Amendment Act 2006. Those changes will take effect on 1 November this year, and that is the reason this Supplementary Order Paper is necessary. The Protected Objects Amendment Act amends certain terms in the Antiquities Act. The old terms are used in all settlement deeds and legislation that include an antiquities protocol. The Protected Objects Amendment Act amends existing settlement legislation to reflect those changes, which is fine in dealing with legislation that has already been enacted, but does not, however, provide for changes to settlement bills, such as the Te Arawa Lakes Settlement Bill, that are currently before the House. It is expected that the Te Arawa Lakes Settlement Bill will be passed before 1 November; therefore, it needs to contain both the pre - 1 November references to antiquities and the post - 1 November references to protected objects. That is the purpose of my Supplementary Order Paper.

I rise to speak on Part 1 of the Te Arawa Lakes Settlement Bill. I did not sit on the submissions process in the Māori Affairs Committee, and I have had limited input into this bill. I certainly have limited knowledge of it, in all fairness; it is just what I have read and what I have heard in the House over the last few days. I suppose what I would ask—and what I have been asking my colleagues—is whether Te Arawa want this legislation. No one could really answer me on that. In fact, I started to get different answers from all directions, and that is what concerns me the most. So I thought I would do what any good politician should do: I would go directly to the source.

I grew up in Taupō, so I know former students and other people who are of Te Arawa, and I thought I would talk to them directly. I was very good friends with Aroha, and she is now living back in that area, so I rang her. As a bit of an aside, when we were at school we were called “marshmallows” by our Māori teacher, not because of our shape—as some people may think—but more because we were considered to be brown on the outside and white on the inside. That was the way she put it. A lot of that was about being disengaged from the process, and feeling disengaged from our own iwi and our participation in it. As I talked to Aroha on Friday, it struck me that we talk about the mandate and about the opportunity to vote, but the reality is that many Māori feel disengaged from the process and from their own iwi, let alone from the Pākehā process, the Crown, and everything else. We have to take all of those things into consideration when we look at whether there is a mandate for something like this legislation to go through.

I am reluctant to go back to numbers, because I think this issue is much more about people. When we start to spout off numbers like 40,000 and 4,000—that sort of stuff—we forget that we are talking about people. The fact that such a small margin of people feel engaged by the process has to raise some concerns, such as whether Te Arawa actually want this settlement. Someone is just telling me that marshmallows are pink on the outside until they are toasted. I think my teacher did mean “MallowPuffs”, so there we go. But it is the same point. We all have our MallowPuff stories that we bring from school and still carry with us today.

💬 Anne Tolley: Scarred!

We are scarred by the feeling of being disengaged from the process. That is the question that I raise with the Minister in the chair, the Hon Mark Burton. It is one that brings us huge concern.

We can talk about the purpose of the bill and about the apology and everything else, but the question is whether this settlement will be full and final. If we do not have a sense of buy-in and of the settlement being what the people want and need, then will there really be an end to the grievance, or is this merely the start of a process? It feels to me as though this bill is still very much a part of the process, and that we have a long, long way to go. For that reason, I certainly support my party in opposing this bill.

The bill talks about the whole historical grievance of the period, and it makes sense in the way it is constructed, but I do not know whether that would be everybody’s story. That is when the situation becomes one where people are coming from different places on the issues and are not taking into consideration anyone. What could result from that, actually, is more of an uproar from people opposed to the legislation than of support from people who are standing up for it.

No one is keener than the National Party to see these settlements go through. The acknowledgment of wrongdoing and the settlement of claims are things that National started in the early 1990s, so they are obviously things we feel very passionately about. But when we look at the engagement of people like Douglas Graham, we can see how they got buy-in by taking the time in negotiations. When they talk about the process they went through, they say they did not go a few times to talk; they kept going back and going over the same ground many times. They found that other people became more engaged as that process went along. I wonder how we can come up with legislation like this, which perhaps does not really address the concerns of the majority of people, and how we can lay something like this issue to rest.

In the first reading debate, I said there was a lot more work to be done before we got the bill to this place, and I thought we should be going back to the drawing board before we took it through the select committee process.

Tēnā nō tātou katoa. In reference to Part 1, I point the Minister Mark Burton, and other members in the Chamber tonight, to a couple of the amendments on Supplementary Order Paper 57, which I have put forward. I will try to explain them, hopefully, fairly clearly.

The first point is to raise again that the notion of “full and final” is something that I suspect our people do not accept. Maybe it was thought in 1922 that that settlement would be full and final, yet here we are revisiting it. I note the point made by Mr Finlayson that unless settlements are done in a fair and equitable way, and people know what is going on, there will be a time when these sorts of settlements come back in the door. So I just put that out there as a prediction—that at one point or another that will happen.

The second point I raise concerns my amendments to clause 5. I hope the Minister will consider some of these things. Firstly, there is to be group called the Rotorua Lakes Strategy Group, which is to be made up of Te Arawa, the Rotorua District Council, and Environment Bay of Plenty. Under the bill, the involvement of Te Arawa in this group is limited to only two members. I do not know whether the Minister picked that up. Te Arawa is mentioned as having two members, but for the members from Environment Bay of Plenty and the Rotorua District Council no numbers are mentioned. It may be that their numbers are limited. I hope to address that further on in the discussions.

It is important to have all of the parties at the table. The district council must accept some of the responsibility for the state of the lakes, as should Environment Bay of Plenty as the current agency operating on behalf of the Crown. But surely it is appropriate that the number of representatives from Te Arawa, as the owner, equals the combined total of the representatives of both other agencies. How else can the owner ensure leverage to address the issues of cleaning up the lake? I am suggesting in my Supplementary Order Paper that the number of those representatives on that body equal the number of representatives of Te Arawa, and that that be stated. To put it another way, those responsible for the state of the lake could continue to fail unless this matter is addressed.

The other issue I mention is that there is actually nothing in the bill that sets out the responsibilities of the Crown. Let us make it clear: the Crown had the responsibility, the Crown stuffed up, the Crown acknowledges that it stuffed up, and the Crown is handing back a polluted site. These are the sorts of things that stick in the heart and soul of my people.

To that end, I will recommend the insertion of a new clause—and, hopefully, the Minister will consider this—stating that the total number appointed to the group by the Rotorua District Council and Environment Bay of Plenty must not exceed the number appointed by the Te Arawa Lakes Trust. That is part of a recommendation that will be put up later.

I just also point out to the Minister that the hapū and iwi are set out in schedule 2, and clauses 5, 6, and 7 talk about a review of the iwi and hapū. In terms of the management entity, there is actually some doubling up of hapū. So a review would be a very important move.

The apology in the bill acknowledges the part that Te Arawa has played in terms of Aotearoa. It states: “Te Arawa has honoured its obligations and responsibilities under te Tiriti o Waitangi …”. We have contributed to the war effort overseas, and we gifted portions of the annuity for the national good in the 1930s and 1940s. It also states: “Te Arawa has demonstrated a record of co-operation with the Crown …”, but the benefits back from the Crown were not realised. Finally, it acknowledges that Te Arawa have made a significant contribution to tourism and to the wealth of New Zealand—Rotorua in particular.

Also, the Crown acknowledges its actions—this is quite important. The contribution of the Crown includes the introduction of exotic fish; prosecution of Te Arawa people for fishing without licences; deliberate delays in providing survey plans and public maps to Te Arawa for Native Land Court hearings; and the failure to review the annuity paid to Te Arawa as a part of the 1922 agreement. The Crown acknowledges that the pollution and degradation of several of the lakes have caused a sense of grievance. It acknowledges its failure to deal with grievances in any appropriate way, despite petitions to the Government, tribunal hearings, and the like. These issues are actually documented in the bill. The bill sets out for the whole nation to see what the Crown acknowledges. So what is up with that? Te Arawa contributes to the nation, and what do they get back? Exotic fish, prosecution, and deliberate delays.

In relation to clause 13, although the Māori Affairs Committee considered submissions from a number of iwi, Ngāti Whāoa in particular were clear that they wanted three lakes to be withdrawn: Ngāhewa, Ngāpōuri—also known as Ōpōuri—and Tūtaeīnanga. Why? Because determination of the ownership of these lakes and the surrounding areas is still in debate before the Waitangi Tribunal. Yes, a report was written by Judge Fox regarding a hearing for urgency, and the Melvin report was produced, but I ask whether it would not have been better for us to wait for the process of law to run its full course before implementing this bill. Let iwi have the ability to take issues to court—the Waitangi Tribunal, in this case—allow the process of law to go to its nth degree, then make decisions from that. Including these lakes now may well result in further grievance down the line.

It is against this background that my Supplementary Order Paper takes these lakes out of the agreement. It omits clause 15, which refers to the settlement of the lakes claim being final. It will never be final, for generation after generation, especially as, as we note, our people revisit injustice.

Clause 16 talks about the jurisdiction of the tribunal to consider claims. This question was put by the select committee to the officials. It seems that the motivation is so that Te Arawa cannot relitigate issues around claims and settlements. So where are the safety mechanisms to ensure that the bill is enacted to its full capacity, and where do Te Arawa go to seek redress? These are some of the questions that need to be asked and answered. This is important, bearing in mind that the Crown, with the bill, acknowledges that it stonewalled Te Arawa’s attempts to get justice. Since 1922, it has taken 80 to 90 years to get a settlement. In one sense, our people do not trust the Crown.

These are important amendments that I hope the Minister will consider as we go through the Supplementary Order Paper process. I have taken the amendments fairly seriously in putting them in front of the Committee—in particular, in front of the Minister—to address some of the anomalies that are part of this bill.

I will take a brief call to comment on the Supplementary Order Papers on this part. The Greens will support the Government’s Supplementary Order Paper. We do not see any problems with it; it makes perfectly good sense to include the reference and issues around the Protected Objects Amendment Act. In terms of the Supplementary Order Paper from the Māori Party, we agree entirely with three of the amendments and will be supporting them wholeheartedly, and one we will not support. I will just explain what we are doing.

The one we will not support at this stage, unless something changes quite soon, is the omission of the Crown stratum from the legislation. The reason is that I am still very uncertain that by enabling Te Arawa to have ownership of the water body, that does not then provide some kind of legal responsibility over the quality of the water or what happens to it. Unless I feel very certain that no further legal issues might arise from that ownership, I think it is better to leave that out at this stage. I know that it is controversial and I understand entirely the desire to return the water body to Te Arawa, but I am just concerned that I do not have enough information about the legal consequences of doing that.

So the Green Party will not support that Māori Party amendment. But we completely support the other amendments, particularly the change to clause 13. At the Māori Affairs Committee I asked officials from the Office of Treaty Settlements why they were including Lake Ōpōuri in the settlement and why they were giving it to the main group instead of to those who had provided to us in the select committee a vast array of information about the lake’s legal ownership and the trail of it. Those people gave us incredible information, and the officials said that the Office of Treaty Settlements owned the lake now, that it was negotiating with the main group, and that it was going to give the lake to them. That was it! There was no recognition at all of the history of the struggle of this family and its hapū to have that lake returned to them, even though they had a significant and detailed paper trail showing their legal ownership over time.

I thought the approach from the Office of Treaty Settlements was disgusting. It simply was not interested in pursuing the matter and making sure there were ways of dealing with the ownership issues around specific lakes for specific hapū. There were other ways of doing it. Hapū groupings could have been set up. If there were a number of hapū who had connections with the lake, a mechanism could have been provided for them to have more control over what happened to it. That would have recognised everybody’s rangatiratanga and made the whole process so much easier. Also, it would have meant that those who were directly or more closely associated with a particular lake could have had that mana recognised. But there was no system for doing that, and it was obvious that the Office of Treaty Settlements had not bothered to explore ways of doing that.

It has meant that this particularly hapū, who have a paper trail showing their ownership and their struggle to get that ownership recognised, are once again dispossessed of their property. The whole point of treaty settlements is to reverse that dispossession. It is a crazy situation that arises out of a settlement process that does not understand what it means to provide restitution to the victims of a historical wrong. The process is actually set up to provide the Government with the easiest possible way out. It is a process that looks good from the outside and gets complaints from the public for being too generous at 1 percent return on the lands that were lost. The Government wins—it looks great for the Government—but Māori miss out again and again.

The reason we are very pleased to support the amendment to omit clause 15—the full and final settlement clause—from the legislation is that it is a lie. It is not full and final. That is the point. It cannot be full and final until there is a decent process that really and truly recognises what is happening for iwi and hapū in their struggles to get these settlements through. This settlement claim is nearly 10 years old. It is now nearly 10 years since Te Arawa went to the tribunal. They have been fighting through this process for 10 years. They have had to spend thousands and thousands of dollars and it has taken hundreds and hundreds of person hours. People die in the process of trying to get these settlements through. And that is considered fair? They are supposed to be happy with what they have got, and every generation from now on is supposed to say: “Well, that’s it. It’s full and final. It’s what the legislation says. It’s fair in the circumstances. That’s all right.” It is not OK.

I want to pick up on one or two of the points made by the previous two speakers. Mr Flavell outlined the amendments on Supplementary Order Paper 57 in his name, and—as I did in respect of Supplementary Order Paper 56 in my name—covered the effects of it across the bill. I will deal with the impacts of the Supplementary Order Paper at the various stages of the bill and with the points raised by the member who has just resumed her seat.

The first point I want to remake to the Committee is that the deed of settlement and this bill have been negotiated and agreed to in good faith with Te Arawa’s mandated negotiators. The member who has just resumed her seat quite rightly laments those who have died along the way, in the 10 years that this process has taken. People have spent their life’s work—and life’s blood, in some cases—to get to this point. For others who do not have that depth of background and commitment to then flippantly presume to usurp the authority, the mana, and the mandate of those people—a mandate, I repeat, that is upheld by the tribunal—and at a whim to replace their work with a Supplementary Order Paper in this Committee is, I think, an insult. I think it undermines the integrity of the process—the integrity that the negotiators upheld it as having. I think it is a serious matter.

I know that the intent of the member who has just resumed her seat is absolutely serious, and that she is highly motivated to get a fair result. I do not question that, but I ask her to consider whether one should usurp those who have worked for 10 years on the process and who have earned the right to negotiate and have their mandate renewed and upheld over and over again, in many cases at huge personal cost to themselves. I think few people will ever understand the cost, not only in dollars or in time but also in the effect on those people and their families and whānau. In my view, we owe it to them to treat the integrity of this process very carefully. I believe that the process has been one where everyone has come to the table to try to get a fair and proper result.

The Supplementary Order Paper that Mr Flavell proposes would change fundamentally the agreed settlement. For that reason I cannot, and the Government cannot, support it. As I have tried to illustrate, it is entirely inappropriate to undermine in this way those who have the mandate, and I think that on that basis alone the amendments could be rejected. In terms of Part 1, Supplementary Order Paper 57, dated 6 September, seeks to amend clause 5. That clause, in fact, simply outlines the content of the bill and has no actual bearing on the interpretation or application of the legislation. It therefore has no material value. The Supplementary Order Paper also proposes amendments to definitions in clause 11 that are consequential to a proposed amendment to Part 2. I will deal with that when we get to that point in the bill.

In terms of clause 13, I think the Supplementary Order Paper proposes that any claims in relation to three of the lakes should not be settled. I repeat that the trust board has upheld and renewed the mandate throughout this process in relation to all 14 of the lakes on behalf of all Te Arawa. The Supplementary Order Paper proposes to remove from the settlement, with no apparent authority from anyone, the claims in relation to three lakes named on the Supplementary Order Paper. The settlement was ratified by the Te Arawa claimant community, and I think it would simply be wrong of this Committee to vote for a non-mandated challenge rather than a properly mandated process and a properly mandated ratification process.

Finally, the Supplementary Order Paper also proposes that clause 15, which provides for the full and final settlement of Te Arawa’s claims to the lakes, be removed. I simply ask how we can possibly ever hope to ever have a full and final settlement if this Committee, at its whim, sets about removing from this legislation a properly negotiated full and final settlement negotiated by people who have the mandate and the mana to do so. I urge members to give serious consideration to the issue of who holds the mandate to negotiate. If those people reached a proper and fairly negotiated end result, then who has any demonstrated mandate to challenge it?

I do not want to jump in and support the Greens too much, but I do not believe for a minute that my colleague was either usurping or even insulting when she spoke in terms of wanting more for the people of Te Arawa. But hoi anō, he take anō tērā. [that is another matter.]

I want to ask members to look at clause 5(4)(c), relating to the rights and obligations attaching to ownership of Te Arawa lake beds. I ask the Minister whether there is an issue about liability—when the bill comes into force—if, for example, I am out on the lake one day and happen to have a wee bit of an accident. If that accident is not of my doing but of the owner’s doing—for example, if something jumps out of the water—

💬 Pita Paraone: Taniwha.

I did not say that! But who is liable? Does this mean that the new entity is liable, because it is the owner of the lake bed? Is that an issue we should be concerned about? I think that it is something we should concern ourselves with, in terms of liability, I tell the Minister, and I hope he can see his way through to have a yarn about that.

As well, in clause 8, “Text of apology in Māori:”, it does not seem as though—and I could be wrong—there is any mention of whānau: “E tuku ana e Karauna i tēnei kupu pouri ki a Te Arawa nui tonu, ki ō rātau tūpuna, ki ngā whakatupuranga, ki ngā iwi me ngā hapū hoki o Te Arawa.” I was always under the understanding that the Treaty of Waitangi mentioned whānau, as well. Maybe we should have just a little peek at whether the word whānau is inserted in there. I know that the Minister has said that far be it from us to change any of the negotiated parts of this bill, but I respectfully remind him that we, too, are elected; we, too, have a mandate; and we, too, have an obligation to raise issues that come out of the select committee process, and out of our talks with various people around the island.

That is more so at this point, I suggest, in relation to the member Te Ururoa Flavell, because he is the elected member of that area, and people have come to him, as the elected member, to raise concerns about either the process or what is actually in the bill.

Those are my concerns, I tell the Minister, and I hope that he takes—now or later on—some time to mention those, and see what the issues are about ownership, liability, and whānau. Sometimes when we use the Treaty of Waitangi, we forget about the words that are used in it, and we give today’s interpretation of what we think the Treaty is, without actually going back and having a look to see what the words are. It is not so much about the meanings, or the principles, of the Treaty of Waitangi; it is about the words in the Treaty. I think we do ourselves no favours by not, I suppose, carrying on the words used in 1840 till now. I have no doubt that sometime in the future we will see this legislation before us again.

I commence talking to this part of the Te Arawa Lakes Settlement Bill by making reference to the area of definitions. I specifically refer to the “Cultural Redress Schedule”, and say that I think the definition there is quite clear. What is not there, and what I would have thought might have been included—and is something that could be considered for future settlement bills—is the definition itself of cultural redress, in that clause covering definitions. Although some of us know that cultural redress means the recognition of traditional, historical, cultural, and spiritual association, I think it might have been helpful to include that definition in the legislation.

I refer now to clause 13, and in particular to subclause (1)(a)(i) where reference, after the mention of “settlement date”, is made to the fact that the claim “is founded on a right arising—(A) from te Tiriti o Waitangi (the Treaty of Waitangi) or its principles;”. I want to say, straight off, that New Zealand First supports the process, and it supports the outcome, therefore we will support the legislation. However, I want to respond to the comment made by Mr Finlayson on behalf of his party. Of course New Zealand First is disappointed that this reference to those ill-defined principles—in fact, undefined principles—is included. New Zealand First says that our bill referring to the deletion of the principles of the Treaty of Waitangi, when passed, will now have to include this legislation. I just wanted to make that point, and although it might seem that members within New Zealand First are at odds with one another, I tell members we are clearly not; we are just disappointed that references to those principles are included in this legislation. It is just another bill that will be affected by our deletion bill when it becomes law.

In relation to Supplementary Order Paper 57, proposed by the Māori Party member, Te Ururoa Flavell, I focus on clause 11 and the definition of “Crown stratum”. His Supplementary Order Paper suggests that the entire definition should be omitted. The effect of that would be that the Crown would retain no ownership interest in the lakes, but I think the bill’s whole purpose is to vest just the lake bed and all those attachments—other than the water and the air above the lake bed—in iwi, and to leave what has been described as the Crown stratum to the Crown, which will hold it, of course, on behalf of all New Zealanders.

💬 Hon Dover Samuels: What about the trout? Who’s the trout going to be vested in?

Ha ha! The Supplementary Order Paper also refers to the “Te Arawa Lakebed” in clause 11 and, again, the provision suggests that the paragraph referred to should be excluded. But if we did that, the Crown stratum would be excluded from the definition. Of course, this settlement bill is about the ownership of the lake bed being transferred to Te Arawa, and it is important that that is defined, including the air space and water column, commonly known as the Crown stratum.

The Supplementary Order Paper also seeks to add a new clause, to exclude a claim relating to Lakes Ngāhewa, Ngāpōuri, and Tutaeīnanga. In the Māori Affairs Committee we looked at the claim by Ngāti Whāoa in terms of Lake Ngāpōuri, and we were advised by officials that although it was correct that all the land around the lake had been sold to the tribe, the sale did not include the actual lake or lake bed. So, on that advice, we in New Zealand First are quite happy to support the ongoing process related to this bill.

Again, the Supplementary Order Paper suggests that clause 15, which provides for full and final settlement, should be omitted. It is not the first time that I have heard the member say that settlements are not full and final. In fact, I think it has been suggested by the member that the affected iwi, hapū, and whānau should consider re-claiming, or putting in a further claim. Look, if that is what we want for the generations to follow, then that is what we will get. So I suggest that the member might want to reconsider that position. The other thing is that although he might not want to reconsider, the proof of the pudding will come when we actually vote on this bill—and I say that abstention is not good enough. Members are either against the bill, or not. I make that comment in reference to how people will vote. Kia ora.

I want just to pick up on a couple of points that have been raised. I want to give Mr Henare reassurance about his concern over liability of Te Arawa for persons having an accident. He did not quite explain what might cause the accident, but in general terms an accident occurring in and around the lake would be subject to the normal principles of law. Of course, thankfully we still have a Labour Government, and therefore we still have accident compensation. So any accident or injury incurred would be well looked after by the accident compensation system.

The serious matter that the member raised, and I think the National member Mr Finlayson raised this during the second reading, concerns questions around references to the principles of the Treaty of Waitangi. I think it is important to remind members that under the Treaty of Waitangi Act 1975 the tribunal is charged with making recommendations on claims relating to the practical application of the Treaty, and determining whether certain matters are consistent with the principles of the Treaty. In the interests of finality, this bill needs to refer to the principles of the Treaty to make clear that the Waitangi Tribunal and the courts will no longer have jurisdiction to consider relevant claims in the future. I remind members again that this is an approach that has been taken consistently. Members can go right back, if they wish, and reference the National Government’s Ngāi Tahu Claims Settlement Act 1998 for a case in point.

I have a number of concerns in respect of this bill. The main concern is around mandate. Mandate is something that has been raised consistently throughout discussion on this bill, and it is an issue that should be addressed. The need for a robust mandating process is so that in the future things cannot be resurrected or do not explode again. There is a saying about burying things dead, and burying things alive. When we bury things alive, they fester away and come back to bite us. In Taranaki, for instance, we deal with a thorny issue quite often. It is called a boxthorn hedge. When people get pricked by a boxthorn hedge, they have to dig out the prickle and deal with it, then and there. If they do not, it lies dormant under the surface of the skin for some time and they think the whole problem has gone away, then, one day, it explodes and there is pus and mess all over the place to be dealt with. The problem with the lack of a robust mandating process in respect of this issue is that when it explodes again, it will be Māori who cop the flak for the lack of will to deal properly with this process.

We have heard from other speakers in the Chamber today about those who are unhappy with some of the resolutions that have come out of this. One of them, particularly, is Ngāti Whāoa’s claim on Lake Ōpouri. That claim is currently on the table. It has not been dealt with. It deals with part of the settlement of this proposal, and is one that is bound to come back. It is interesting to note the history of the Government’s lack of listening to Māori on this issue. We heard my colleague Te Ururoa Flavell talk earlier about the 1922 process. It was interesting, and I think quite ironic, that even the first time this matter was raised in this sitting, last week, we witnessed the situation where strings were being pulled and process was being abrogated to try to drag this out, because it did not suit the Government to debate it at the correct time as laid down on the Order Paper. Even then, it was being dragged out. Things have been jiggery-poked around to try to have them the Government’s way.

I find New Zealand First’s response to this quite amazing. Its members have said, and it was said earlier by my colleague Pita Paraone, that they disagree with a big chunk of the bill, but they will vote for it tonight, on the basis that if New Zealand First is successful with another piece of legislation, it will pull this legislation to bits again. Where is the credibility in that? Where is the integrity in a system that allows that to happen? I find that incredibly difficult to understand. Another thing that I find difficult to understand is the response of the Minister Mark Burton when asked some difficult questions, again by the honourable member Te Ururoa Flavell. In my paraphrased version, he came out with: “Well, who the hell are you?”.

The fact is that when we have a close look at the separation of powers—and this is something I spent some time on a little while ago—we see that Parliament is at the top of the pyramid, and the executive comes under that. So who the hell are we? We are the people who get to ask what the hell is going on. There is nothing wrong with holding a system to account. In fact, that is what we are here for; that is why we are elected to be in this House—to ask those questions. If members do not like the question, then they should not slag off the person asking the question. They should give a considered response that will not see, in years to come, Māori being able to put up their hand again and say that they were not happy with this process, that they flagged that several times during the formulation of the settlement process, that they raised it time and time again, and that it was raised in the House. The punishment for their doing that is to be branded by the rednecks as never being happy, and the issue is called a Māori issue, as opposed to a New Zealand issue, a governance issue, a settlement issue, or the process of trying to move forward as one nation.

I ask New Zealand First to have a look at where it is coming from, in relation to the principles of the Treaty of Waitangi. The stance those members have taken appears to be inconsistent. There seems to be a weird sort of response to some of these questions; it seems when their leader is out of the country they do not know exactly how they are voting on any particular issue at any one time.

Tēnā koe, Mr Chairman; nau mai ki te Whare. I want to take just a brief call to respond to a couple of things that have been put before the Committee this afternoon, particularly relating to this part, although there will be time again later on to have another shot.

I say that most of Te Arawa—in fact, most of the nation—would probably want to have settlements. Why? So we can move on, like everybody else wants to do. But as somebody who lives in the electorate that covers Te Arawa, I respectfully tell the Committee that I understand fairly clearly the outcomes of the discussion today. I live in the area, I know the people, and some of them know me. I know the marae; I am there. So I respectfully ask that people understand that this issue is not just about me; it is about Te Arawa. In that light, the discussions that have been heard with regard to this bill have hit at the heart not just of me but of Te Arawa. Why? How do I know that? It is because Te Arawa, in terms of claims, like most other iwi, are split smack down the middle. Why? It is because people have not necessarily had the information to be able to assist them. As my colleague Mr Borrows from Wanganui has said, our job is to raise those issues.

I want to make a couple of points to the Minister. Firstly, I would have thought, and I can understand, that statements like “properly negotiated” imply there is a level playing field. I tell the Minister that the people I have spoken to, some of whom have been negotiators not just on one Treaty settlement but on other settlements, are fairly clearly of the mind that there is no negotiation. They say they are told that here is the deal and they can take it or leave it, but that if they do not take it, they will go to the back of the queue. Is there any justice in that? I would suggest not, despite the fact that the member may well be an honourable person and the officials may well be honourable too.

We heard from the officials, who came in the door and told us of the parameters within which they had to negotiate. I ask the Minister this: is 1 percent fair, under anybody’s terms? Do Te Arawa want the whole world? No, we do not. Could Te Arawa accept 50 percent? Maybe. Or 20 percent? Maybe. But 1 percent? Give me a break! That is not how it works. So “properly negotiated” is not how I see the settlement, with all due respect. Those negotiators talked about guns to the head and that sort of stuff, and that is disappointing. I just wanted to make that point.

Second, in terms of my Supplementary Order Paper 57, here is the rub: the bill states that Te Arawa have two people on the Rotorua Lakes Strategy Group. As to the rest of the members, there is no mention of anybody else except the groups—no numbers are specified. One has to be suspicious about that, so I raise that issue.

In respect of Ngāhewa, one of the three lakes referred to on Supplementary Order Paper 57, again we all followed the process of law. The process of law is in front of the Waitangi Tribunal. Why does the Government not let the process of law finish, and then allow the process in this settlement to carry on after that? But here we have three lakes being put straight out while issues to do with them are in front of the Waitangi Tribunal. That is all that is being asked—for the Government to consider those sorts of issues.

As to whether the settlement is fair and equitable, I have talked about that and I suggest that, no matter what the member from New Zealand First says—eh, Pita; 1 percent—our people will come back. They came back 80 years on from 1922, and here we are today. They will come back again. It will be not just Te Arawa but others who come back. What we have to try to do is to say that, on the one hand, we want settlements and, on the other, we want to move on, so let us work it out and let us work on other things. Let us think outside the box about how we can achieve a settlement, maybe by making time payments. But when we match this settlement up with all the figures I gave in terms of the preamble, we see it simply does not match up. Although I accept that the settlement was negotiated to this point in time, I see no problem with putting up new ideas and Supplementary Order Papers to address things that may be simple, but, in fact, that mean a hell of a lot in the context of the bill.

Two people are put up for Te Arawa—that is all. No numbers are specified for anybody else. Another group could have 10, for that matter. All I am saying, as an example, is that we should put up an equitable number from the groups involved as a way of moving forward, because those sorts of things will come back to bite.

I move, That the question be now put.

I want to raise a couple of new matters, and they are important. Part 1, as we know, deals with the purpose of the Te Arawa Lakes Settlement Bill, and with acknowledgments, the apology, various interpretation provisions, and miscellaneous matters. I want to say something following on from Mr Flavell about Subpart 3, “Settlement of claims”.

When we look at clauses 15 and 16, we might think that these boilerplate provisions would make it tolerably clear that the settlement was full and final, and that any attempt to relitigate would fail. But I can tell the Committee now that these clauses can be easily got round, depending on the facts of the particular case. These clauses will not get in the way, 20, 30, or 40 years hence, of the disgruntled would-be claimants having their day in court or their day in the tribunal. That is why it is very important not simply to enact boilerplate provisions but also—as I said in an earlier contribution—to really try to deal with the substance of the issue, which is to sort out all these problems of mandate and these lingering problems. Otherwise, these problems will come back. I have had experience in getting round jurisdictional clauses, and I am sure that Mr Chauvel has, too. At the end of the day—depending on the facts—it is a piece of cake.

Can I raise a couple of definitional issues. I must express my amazement at the approach of New Zealand First. As I understand those members’ comments about comments I have made about the principles of the Treaty of Waitangi, they will support these provisions now, only to have them deleted later on. That is a weird approach, if ever there was one. It can be described only as absolute humbug. These clauses—and I particularly refer to clauses 7(2)(d), 7(4), and 9—are, in my opinion, reasonably easily able to be remedied. In my first reading speech I outlined about nine key principles of the Treaty of Waitangi, which had been derived from cases and brought together by the Waitangi Tribunal and by academics over various times. I think it should be very easy to remedy those clauses. For example, if one takes clause 7(4), we have an acknowledgment by the Crown that it failed to review the annuity paid to Te Arawa as part of the 1922 agreement, and that that was a breach of the principles of the Treaty. Well, what principle? At one stage when I was talking about this matter, one of the Associate Ministers called out: “It is the principle of protection.”, and I asked why the Government would not put it in. So it is a reasonably straightforward exercise to spell out with some specificity what principle of the Treaty of Waitangi we are talking about.

💬 Pita Paraone: So you are supporting it.

Well, on behalf of the National Party, I have said that we will support the legislation, although it is pretty crummy legislation. For example, it seeks to delete provisions that are already deleted—in a piece of masterly drafting on New Zealand First’s part. But in answer to the member, we will support the bill. However, it will need a lot of hard work done on it; the Justice and Electoral Committee will do that.

The second point I make is about the Crown’s acknowledgments. There is a general point and a particular point. I will ask the Minister about the general point, and I know that his preliminary response will be to say that the National Party did this when it was in Government—and I acknowledge that it did. I ask whether it is wise, given the experience of time—and, after all, that lot have been in for 7 years now—to include in the body of the legislation acknowledgments and an apology. Should they stand as part of the deed, rather than our run the risk that they can be subject to statutory interpretation concerns later on? I personally think that those acknowledgments should not be contained in the legislation. I want to know why they are there. But, having said that, there is the particular question of what exactly these acknowledgments are. What is spiritual importance? What does that mean and how does it relate to cultural importance? How does it relate to traditional importance? These terms are vague and—I am telling the Minister now—they will give rise to concerns later on.

The next point will come up more in Part 2’s debate, but I will touch on it now. It is the definition of “Crown stratum”. From my researches I think this is the first time it has appeared in legislation, and I would be very interested to know how this concept developed. There is, of course, an assumption that the Crown owns the stratum.

The final point I make relates to clause 17, because I am not sure about the practical impact of it. This clause deals with the rule against perpetuities not applying. What are the relevant rules of the Perpetuities Act 1964 that could apply here? If the Minister could explain this provision I would be very grateful.

I move, That the question be now put.

I raise a point of order, Mr Chairperson. Due to the duties I have as deputy leader of our party and also as shadow Leader of the House, I have not been able to be in the Chamber until this point. I am the Māori affairs spokesperson and the spokesperson on Treaty issues, and I would appreciate the opportunity to make a short contribution on the Te Arawa Lakes Settlement Bill. [Interruption] I know that our friend over here, Chuck Chauvel, wants to shut everybody out, but I just implore you, Mr Chairperson, to perhaps think about it. I know that you have almost jumped the gun and got the vote under way, but not quite.

The CHAIRPERSON (H V Ross Robertson): Is there any objection to that course of action being taken? There is none.

I was not seeking leave; I was acknowledging your ability as the Chair, Mr Chairperson, to make a decision. The text of acknowledgment in clause 7(1) of the Te Arawa Lakes Settlement Bill states: “(1) The Crown recognises that Te Arawa value the Te Arawa lakes and the lakes’ resources as taonga. The Crown acknowledges the spiritual, cultural, economic, and traditional importance to Te Arawa of the lakes and the lakes’ resources.” I think that that statement begs the question, of who Te Arawa are. Further, it would ask the question, if this is to be a full and final settlement, whether we do not have to be certain that the overwhelming majority of Te Arawa are happy with the settlement. And does that not then, in turn, cause us to look at the mandating of those who have been in negotiations with the Government?

Firstly, I think those who have been in negotiation have acted honourably and in the belief they were doing their best for the people who had put them there. However, we still go back to the point that there were 20 submission on the bill, and of those 20 submissions 18 were opposed to it. That group of 18 submitters all came from Te Arawa. This afternoon we have heard Te Ururoa Flavell making it very clear that inside Te Arawa there are some significant objections to this particular settlement. So it would be useful for the Minister to stand up and tell us what the mandating process was.

💬 Hon Mark Burton: I already have, when the member was—

It does not matter. The Minister could do this through every part.

💬 Hon Mark Burton: Well, I did.

Well, did the Minister tell us, ultimately, that only 4,000 of this group of 40,000 voted for the settlement?

💬 Dave Hereora: He did that, Gerry.

Dave Hereora—I will say that name again: Dave Hereora, which is a name that not many people will have heard before, none the less he is a member of Parliament—is a fine gentleman. He does a marvellous job chairing the Māori Affairs Committee—I mean that quite sincerely. He has said that that point has been covered. The question then is why the Government is comfortable that fewer than 10 percent of those who say they are Te Arawa have voted in favour of this settlement. The settlement should therefore be an imposition on the rest of them. I ask Mr Hereora whether it is not true that much of Māori history is oral, and the stories that belong to a particular iwi are transmitted from one generation to another. What is to stop the story for 90 percent of Te Arawa being: “We got sold out. This was not a full and final settlement. We were not part of it. It’s not what we wanted.”? For anyone to say that that will not happen, because the settlement is done by Act of Parliament and once it is all done they will all be happy and never come back again, I say is rubbish.

This is the second go at this bill. We freely acknowledge that the first time round was not too hot. But it was an imposition the first time round that causes us to be here now. If only 10 percent, or less, of one’s whole iwi was in favour of this settlement, then it is an imposition now, as well. No one can claim that the settlement is full and final, and only people who have their eyes shut would raise their hands and say “I vote” on the basis of this being full and final.

It seems to me that it would not have been hard to sort this out before we got to this stage. Why were some of the affected hapū not included in the negotiating group? Why did the Government not insist on some form of rūnunga structure that had that wider representation? What was it about the Te Arawa Māori Trust Board and the exclusions of representation on that board that the Government found so acceptable? I say again that I mean no offence to the trust board or its members, but I think the Office of Treaty Settlements should be looking at getting settlements that are very, very well mandated, where there can be no doubt about what is accepted. Te Ururoa Flavell made the good point that these are generous settlements on the part of the settling party.

The CHAIRPERSON (H V Ross Robertson): The question now is that the question be now put.