Te Arawa Lakes Settlement Bill

Part 2 provides for the vesting of the Te Arawa lake beds and the rights and obligations of, and limitations on, ownership. It includes clauses relating to the protection of recreational activities—which is an important part of this settlement—public utilities, existing structures, and existing commercial activities and clauses relating to the consent process for new structures and commercial activities.

In relation, in particular, to the issue of access—a matter that came up today and during the second reading—a number of members expressed concern that the settlement separates the lake beds from their waters. If I could perhaps explain, the beds of the Te Arawa lakes are transferred to Te Arawa and the water column and airspace, known collectively in this bill as the “Crown stratum”, remain vested in the Crown. That was in large part done to protect the public interest, as it enables the Crown to have an active role in determining what happens on, and in, the lakes that are subject to the settlement. In negotiating the ownership provisions of the settlement, Te Arawa and the Crown agreed that the Crown retaining ownership of the water column and airspace above the lake beds was appropriate and enabled the interests of both the public, as represented by the Crown, and, equally, Te Arawa to be met.

Clause 22, “Status of conservation areas”, states: “Any part of a Te Arawa lakebed or the Crown stratum that is a conservation area under the Conservation Act 1987 ceases to be a conservation area.” Can the Minister in the chair, the Hon Mark Burton, tell us whether that means the conservation estate will be used to settle claims. If so, are we setting a precedent for the Crown to use the conservation estate as a redress tool? I would like him to look at that.

Also, clause 23 is about the vesting of the lake beds. Clause 24, “Freehold estate in lakebeds inalienable”, states: “(1) The Trustees of the Te Arawa Lakes Trust must not—(a) dispose of or alienate the freehold estate of all or part of a Te Arawa lakebed; or (b) grant or create a mortgage or other charge in or over all or part of a Te Arawa lakebed.” I am not suggesting for one moment that Te Arawa would do that, because they worked very hard to get them back—for 80-odd years. But should they not have the same rights as you and I do, when we own fee simple title to a property? I am allowed to sell my property; I have ownership of it. Do we need to tell the other side of the deal that they are not allowed to do that? Is there any reason why that provision is in the bill?

Clause 26 is entitled “Limits to obligations for weeds attached to lakebeds”. Clauses 25 and 27 also relate to that, and I understand them, but who is responsible for cleaning up the lakes? Is it Environment Bay of Plenty, the Rotorua District Council, the Government, or a new entity—one made up of the Te Arawa Lakes Trust, Environment Bay of Plenty, and all the other organisations? How much will the clean-up cost? Or are we there yet?

The next question to the Minister may seem facetious, but it is not. Clause 30, “Boundaries relating to Te Arawa lakebeds”, states: “(1) There is a moveable natural boundary between a Te Arawa lakebed and any adjoining land …”. Does that mean that if erosion occurs on the boundaries of a lake, that land will become part of the lake; if so, what happens when there is an earthquake, as is wont to happen in the Tarawera area?

Clause 35, “Liability”, states: “The Trustees of the Te Arawa Lakes Trust are not liable for an existing structure for which they would, apart from this section, be liable by reason of their ownership of the Te Arawa lakebed …”. So what about a new structure?

I turn to clause 41, concerning new commercial activities and new structures. That clause is probably the one that leads the National Party to say we will not be supporting the bill. Basically, it adds another level of administration, or, I suppose, the power of veto is in the hands of not only those who look after the Resource Management Act but also now the Te Arawa Lakes Trust. It will have the power of veto over new commercial activities and new structures on the lakes. We are not happy about that. If we are to have a society where there is one law for all and we all come under the Resource Management Act, then let us have that situation. If somebody wants to build a new structure on a lake, does this legislation mean there is to be a regime whereby that person first has to get approval from the lakes trust? When approval is given for that structure, does the person then have to toddle off to the district council to try to get a resource consent for it? Or is it vice versa—which comes first? That is what we are not happy about. We would rather see a situation where anybody who is building a new structure or setting up an enterprise or commercial activity on a lake has a one-stop shop. And that, obviously, would be the Resource Management Act—the same as for any other normal person in our society. That is really the crux of the matter in terms of one of the major issues that we have with regard to this bill.

If the Minister could address some of the points—not all, but some of them—that I have made, I would appreciate it very much.

I rise to speak on Part 2 of the Te Arawa Lakes Settlement Bill and I have some questions for the Minister, the Hon Mark Burton, as well.

As I read through the bill, I was struck by clause 24, under “Rights and obligations of ownership”, in the same way as my colleague the Hon Tau Henare was, regarding the rights of the Te Arawa Lakes Trust over their own property. The legislation is a full and final settlement and there it is, but then all sorts of holds are put on the trustees of the Te Arawa Lakes Trust. The bill states that they must not “(a) dispose of or alienate the freehold estate of all or part of a Te Arawa lakebed;”. I can see some fairly obvious reasons for that—it means it is still available to the public, and perhaps opens up that control for everyone to use. But it does not make sense to me that the trustees do not have the same rights as everyone else does over ownership so that they can do as they so wish with their property. I would be interested to hear from the Minister on that. I may misunderstand the issue, having come in and read the law as it is, but then a lot of people will do that.

I also have questions around the fact that trustees may grant “a leasehold estate in all or part of a Te Arawa lakebed for a term of not more than 35 years,”. I would have thought it was up to them how they held a leasehold and what they did with their own land, if this legislation is to go through.

I also want to talk a bit more about “Limitations on rights and obligations” in clauses 25 to 27. The media have raised a lot of concern around the issue of the lakes not being handed over in the same state they were in 80 years ago. As someone who comes from the area, I certainly can see the changes over the last 20 or 30 years. I have questions around that issue and what it means. If the trustees are not responsible for the control or removal of weeds, for example, then there are so many questions around who actually is responsible. I would be interested to hear from the Minister about this because the answer is not in the legislation itself, so there is some concern as to what sort of deals have been done to have those things looked after and what sort of accountability there is to ensure those things are followed up for all the people who are using the lakes.

I also did not understand and needed help with the issue of recreational activities in clause 32. I wonder if the Minister could explain that to me a little bit more. Is the Minister saying that everyone will still be able to do those activities at the lakes or will they now be just for the use of Te Arawa? Reading through clause 32, I did not feel that the legislation was as clear as it could have been. I suppose it is too late for the Minister to look at an amendment, but I could look at one that made that clause a little clearer as to “swimming, boating, water-skiing, and fishing, to the extent that those activities are recreational;”. Even looking at clause 40, I could not work out if those activities will still be open to everyone at the same level that they currently are, and under the same protections and laws, or whether they will be changed because the lakes will be under trust ownership, and the trust would have more say as to who could use the lakes for recreational activities.

That raises another issue about how the trust will work in with the local bodies on the laws that govern the area and what is acceptable for public use and what is not. Obviously, there will have to be changes, because what the public and the council think is acceptable use of the land may not be considered acceptable usage by Te Arawa once it goes back into their ownership. They may wish to make some considerable changes to the lakes and the lake beds and how they are used, how they are fished, and everything else. I would be very interested in hearing how those changes will come about and what difference that could make to the public that have been using the lakes for—in many cases—generations and for quite some lifetimes.

I would be most interested in hearing answers to those. Thank you.

I speak in brief response to one or two of the points members have made. First, Mr Henare raised a question under clause 30(1) about the “moveable natural boundary” issue. I think the answer to his concern is contained in clause 30(2) and that is that “the boundary is governed by the applicable common law rules of accretion, erosion, and avulsion.” It was a fair concern, but I think it is taken care of.

Perhaps the more substantial issue that he raised—as did Paula Bennett—relates to the environmental degradation of the lakes. I think it is important to stress here that Treaty settlements are not intended to address environmental degradation and pollution. The environmental regulatory regime that exists at the local and national levels will continue to apply, post-settlement. Therefore, any obligations upon local and central government to clean up the Te Arawa lakes that exist before the settlement will continue to exist post-settlement. That point is actually explicit in the bill—that Te Arawa will not be liable for any contamination that exists. I think the Rotorua Lakes Strategy Group that is created herein will play a valuable role in, and make an important contribution to, improving the integrated and sustainable management of the lakes. Again, it is really clear that the group is not charged with the responsibility for cleaning up the lakes; that responsibility lies with local and central government.

To that end, the Te Arawa lakes water quality problems are being dealt with through the Rotorua lakes protection and restoration programme developed by Environment Bay of Plenty, Rotorua District Council, and indeed, Te Arawa Māori Trust Board. Under that programme, I say to members, action plans are in place to address water quality problems on several lakes. In addition, the Ministry for the Environment has committed funding and is continuing to work with its partners Environment Bay of Plenty, the Rotorua District Council and Te Arawa to clean up Lake Rotoiti.

Kia ora, kia ora anō tātou katoa. I want to pick up a couple of points in this particular part of Te Arawa Lakes Settlement Bill and put them for the Minister, the Hon Mark Burton, to consider.

The first one is the definition of Crown stratum. It was covered partly in Part 1, but I want to raise it here, even though some of my discussion has been ruled out of order. That is all right, I will leave it there and move on to Part 2, clause 23. Clause 23(2) states: “The Crown retains the ownership of the Crown stratum.” That is the statement in the bill and the Minister, in his explanatory note, has added on: “as Crown land under the Land Act 1948”. The question to the Committee and people listening at home is, how the Crown can retain ownership of something that it has not proven ownership to in law. How can the Crown claim something that it has not proved ownership to in law? And what is the reference to the Land Act of 1948? There is no mention whatsoever of the Crown stratum in that Act or, in fact, in any other current legislation.

According to our research, it is defined for the first time in the Te Arawa Lakes Settlement Bill. So here we have this notion of a Crown stratum that is, all of a sudden, being defined at this point in time—not in the past, but here today. When asked about this in question time last week, the Minister, the Hon Mita Ririnui suggested that the words are new but the concept is not. This is interesting when we consider that there is a hell of a lot of care taken to ensure that the wording of bills is absolutely on the nose. Pinching is theft—same concept, but different words.

The Minister said that the Crown’s view was that it had ownership of the water stratum, including the airspace, on behalf of all New Zealanders. Here is the thing—Te Arawa could look after it quite well. Ehara mātou i te iwi kaiponu. [We are not selfish people.]

We are willing to share as well and to work with all other New Zealanders. But this has not been tested. It has never been tested. It has not been considered. Unfortunately, that seems to be how things work—the Crown just takes things when it wants to. It reminds me of other legislation that has been before Parliament. My research tells me about the Maori Affairs Act 1953; about Māori land being considered unproductive; and, of course, about the infamous Foreshore and Seabed Act.

If the concept is not new, why was there no mention of it in the Lake Taupō legislation, the Ngāi Tahu settlement, or the Ngāti Tūrangitukua claims settlement? The main problem with this is that the Crown has assumed ownership without having that assumption tested at all. The Māori Party will tell all of Māoridom: “Here we go again, another confiscation.” We should let the process run and let the law follow its course, rather than taking land away as we did with the Foreshore and Seabed Act.

In June 1990 a Treaty claim was made called Wai 150, which was lodged by Sir Graham Latimer on behalf of the New Zealand Māori Council. The claim sought findings that Māori have rangatiratanga over the allocation of radio frequencies, and that in the absence of an agreement with Māori, the sale of frequency management licences under the Radiocommunications Act of 1989 would breach the Treaty of Waitangi by being prejudicial to the interests of Māori. The report noted: “The spectrum is a taonga to be shared by the tribes and by all mankind. Neither of the treaty partners can have monopoly rights to this resource.” Although the ownership issue is still to be fully tested, the Waitangi Tribunal is clear that the Crown cannot have a monopoly on the resource. So here is a further treaty breach. The report continued “Tribal rangatiratanga gives Maori a greater right of access to the newly discovered spectrum. In any scheme of spectrum management it has rights greater than the general public, and especially when it is being used for the protection of the taonga of the language and the culture.” All of these issues come to the table when we are considering this bill.

Clause 25, “No rights to the water or aquatic life”, states that the fee simple estate in the lake bed is vested in the trustees of the Te Arawa Lakes Trust. The bill states that this does not include rights or obligations to the water. Let us define what a lake is. Here are some definitions of a lake. The first is that it is “a body of fresh or salt water of considerable size surrounded by land”. The second definition is “a large inland body of fresh water or saltwater”. The Concise Oxford Dictionary states that a lake is a “large area of water surrounded by land”. During the consultation process, people at various hui asked: “How the hang can you have a lake without water?”. Te Arawa has a lake back, but there is one problem—there is no water in it. There is no clear definition in respect of this.

So what are we getting back? We are getting the silt, the pollution, the paru, and the tūtae on the bottom, and Te Arawa is supposed to be grateful. Unfortunately, that is how it seems to be. It is also unfortunate that the trustees do not have any rights or obligations in respect of aquatic life in the lakes. Damn, I wish we had that. But we get the plants that are attached to the lake bed. We get the plants—how awesome. Who looks after the clean-up? At this point in time there is no commitment from the district council, although it has intimated that commitment may be there. Similarly, Environment Bay of Plenty and Environment Waikato are supposed to be part of the deal somehow, but there has been nothing from them. What about the Government? I am still waiting to hear, but I understand that some money has been given. Here is the rub: the Te Arawa lakes settlement is $10 million and the clean-up will cost $200 million. So we have a bit of a problem.

The hope will be that there is a commitment to follow through with cleaning up these lakes. We also hope that we will go back and revisit this notion of Crown stratum because it is very important. How can the Crown claim something that has not even been put into the law of the country? There is something wrong there. We will be making a big noise through Māori Television, and whatever other medium we have, to make sure that this information goes out to our people. Because in a subtle way we have another confiscation on its way, and the Māori Party will not stand by to let that happen.

I agree with the previous speaker that this is the first time the concept of Crown stratum has appeared in settlement legislation. He has raised some very interesting questions that really need to be addressed.

I approached Part 2 by looking for example at the Ngāi Tahu Claims Settlement Act to see the way in which, for example, Lake Te Waihora, or Lake Ellesmere, was dealt with, and also a couple of other lakes. It is interesting that in that legislation there was the transfer of the fee simple. In section 171 of that Act there was reference to the title extending to the bed only. There were also provisions about existing public access and use and existing lawful commercial use and structures. But it did not go as far as this part of the bill is purporting to do regarding the Te Arawa lake beds.

I focus, for example, on clause 24, which provides that the freehold estate of the lake beds is to be inalienable. I do not know, from my brief reading, if that is specifically referred to in any of the provisions of the Ngāi Tahu Claims Settlement Act. In effect, as my colleague Mr Henare said, this means that less than full property rights are being transferred to Te Arawa, because Te Arawa cannot dispose of or alienate the freehold estate, nor can they grant or create a mortgage or other charge in or over a part of the lake bed. I cannot understand why they should not be permitted to do that. Subclause (2) of clause 24 is unexceptional because it provides for a transfer or transmission to a trustee, and, of course, a provision like that would be needed. But the trustees of the trust may grant a leasehold estate in all or part of a lake bed for a term not more than 35 years, and they may also grant licences, easements, or profits à prendre over all or part of the lake bed.

So I would like to hear from the Minister in the chair, the Hon Mark Burton, because we are getting new concepts engrafted on to this legislation. As Mr Flavell said, it appears that this is the first time the concept of Crown stratum has come along. My second point relates to what exactly the Te Arawa Lakes Trust can do with this freehold estate that is transferred to it. This legislation seems to give them less than full ownership rights.

I will not deal with other parts of Part 2, because they deal with recreational matters and existing structures and so on, but I endorse what Mr Henare said about new commercial activities and new structures. Clause 41 provides that the written consent of the trustees will be required before new structures and new commercial activities may be permitted. Actually, the Ngāi Tahu Claims Settlement Act seems to be silent on the issue of new commercial activities and new structures, although there is provision for a joint management plan to be introduced by Ngāi Tahu and the Minister of Conservation and Director-General of Conservation. In any event, what we have in clause 41 is another layer of management, and it does seem to be a rather clumsy way of dealing with matters.

So they are, perhaps, matters that the Minister in the chair may care to address. The rest of the part is pretty unexceptional, and I will not waste the time of the Committee on it.

The CHAIRPERSON (H V Ross Robertson): I advise members that the first amendments set out on Supplementary Order Paper 57 in the name of Te Ururoa Flavell, to omit subclause (2) of clause 23, and to omit paragraph (a) of clause 25, are out of order because they are inconsistent with the principles and objects of the bill.

The question was put that the amendment set out on Supplementary Order Paper 56 in the name of the Hon Mark Burton to clause 23 be agreed to.

Amendment agreed to.