Te Arawa Lakes Settlement Bill

I stand to address the title of this Te Arawa Lakes Settlement Bill. The question asked earlier by the honourable member Te Ururoa Flavell was: “What is a lake without any water in it?”. In actual fact, the only thing being given in respect of each of these lakes is the bed of the lake. It seems that the new definition of a Crown stratum is a huge move to change the goalposts. I propose that the title of this bill should be the “Te Arawa Lake Bed (Take It or Leave It) Bill”.

We know, as discussed earlier, that Ngāti Whāoa have a claim, but in respect of this claim the Government is saying it needs some settlements under its belt, so it is moving with this one and is not worrying about the existing claim. At the same time, it is not worrying about the uncertainties or issues that remain in respect of Te Arawa. The Government has moved in spite of that and said that Te Arawa must take the settlement or leave it, and just move along. That is the first point.

Sitting suspended from 6.00 p.m. to 7.30 p.m.

Before the dinner break I suggested that the new title of the bill should be the “Te Arawa Lake Bed (Take It or Leave It) Bill” to account for the fact that it has nothing to do with lakes but only lake beds, in so far as what is being acknowledged in the settlement to Te Arawa. I also made the point that some cognisance needs to be taken of the fact that the settlement is contested by Ngāti Whāoa in respect of Lake Ōpōuri. To move on with the settlement while that is still unresolved seems to be unfair and seems to endorse the “take it or leave it” part of the proposed new title.

Another obvious inequity is the proposal that we grant the holder title in fee simple. But fee simple entitles holders of land to be able to deal with the land as they see fit, such as selling it or raising mortgages on it, and this legislation explicitly denies that right—although I note in another inconsistency there is the ability to grant a lease over that land. So that seems to be in line with: “We will promise you everything and give you nothing, and before you get it we will take it away from you.” That was not done in the Ngāi Tahu settlement, so there is a real inconsistency there, and one has to wonder why, if Treaty settlements are to be dealt with in a consistent manner, that would be the case.

The creation of a Crown stratum, which did not exist under other settlements and seems to be a new animal under this legislation, seems to warrant some sort of explanation, but that has not been given. Other than a definition of what it is, there does not appear in the legislation to be any tie-in with where that comes from in law. Some explanation is needed, because it seems to add to the “take it or leave it” bit, as well. What it boils down to is that it is pretty much the “We won, you lost. Eat that.” approach alluded to late in 1999. That seems to be the approach to how this entire legislation has been dealt with, and the settlement.

Through the course of this debate a number of issues and concerns have been raised by way of seeking explanation and some sort of fleshing out of what the terms mean, yet no attempt has been made to do that. The whole point of debating this legislation in the Committee is to get clarification on those issues so that people can have some clarity. The people who are talking about their legacy and about what they in turn wish to hold in trust to then pass on to their future generations have a right to know exactly where the Crown sees itself on this. If it is unclear as to what this legislation means precisely, then what is it handing on? Is it really just handing on a headache not only for the people of Te Arawa and the people of Ngāti Whāoa but also for the rest of us?

We have seen in the past that every time Māori have tried to redress some inconsistency over time, it is Māori who cop the flak. They are the ones who get whacked around the ears by the rednecks who say: “This is a Māori problem. Here they go again.”, and it detracts from the sovereignty Māori have over the things that are acknowledged to be theirs pursuant to the Treaty of Waitangi. If we do not sort this out now, we will ensure there will be a problem 5, 10, 50, or 100 years down the track. The point was made earlier that the 1922 decision has come back 80 years later. What we are creating is just another headache for people to deal with in years to come.

Very briefly, a number of points of interest have emerged from this debate in the Committee stage. The first, by reference to recitals (13) through (19) of the preamble, is that negotiations were conducted at a very dilatory pace over a number of years. But at the end of the day, the Government’s approaches to this particular Treaty settlement could be described in this way: the first approach—that of the Government to Te Arawa—is to “take it or leave it”, as Mr Borrows said; the second approach, when dealing with the legislation before the House and this Committee, is to “accept it or forget about it and go and see a taxidermist”. I think those approaches are most unfortunate, especially when there are very important and legitimate issues that need to be raised—and these, in essence, have emerged during the course of the debate.

The first issue, which has been unsatisfactorily dealt with by the Minister, Mark Burton, and the Government team, concerns mandate. The report of the Māori Affairs Committee that deals with mandate questions is unsatisfactory. As I said when we debated Part 1, if mandate questions are not resolved satisfactorily—if the discordant remnants of Te Arawa are not brought into this settlement—there will be problems in years to come.

That leads on to the second point. It is very easy to put into the bill jurisdictional clauses that have the effect of trying to oust the jurisdiction of the courts and the Waitangi Tribunal in relation to matters concerning the Te Arawa settlement. I have seen such clauses before, in relation both to Treaty settlements and to other attempts to oust the jurisdiction of the courts—but where there is a will there is a way. If there are issues of justice that remnants of Te Arawa want to raise in 20 years’ time and the courts consider those issues legitimate, then they will get around the jurisdictional issues. So the kinds of points raised by the National Party and the Māori Party will not go away.

The third issue raised in the course of the Committee stage concerns definitions. Right throughout this debate—in the first reading, the second reading, and again in the Committee stage—I have raised issues about the vague reference to principles of the Treaty of Waitangi. I have raised questions about what references to spiritual significance and cultural significance are, and I, like my friend Mr Flavell, have referred to this interesting concept of Crown stratum that appears for the first time in this legislation. I think more care needed to be taken with some of the definitions and with some of the concepts. When looking at Part 2 I contrasted the scheme of this bill with the scheme, for example, of the Ngāi Tahu Claims Settlement Act of 1998. So some interesting definitional issues were not properly addressed.

Finally, when my team on the National Party and I looked at Part 2, which deals with issues about cultural redress, we said that some issues arose in the context of that particular part. I regret to say that they were not adequately dealt with. I particularly refer to clause 24. As Mr Borrows said, it transfers lake beds to Te Arawa and provides for a scheme of transfer that means the people of Te Arawa have something less than full entitlements to their property. For example, they are not able to dispose of or alienate a freehold, which is a fetter on their rights as property owners. They are not entitled to grant or create a mortgage, but they are entitled to lease the estate for a term of not more than 35 years. They are entitled to grant easements and licences. Those issues were not properly resolved.

Above all, if I can say this, what I have found most interesting is the unique position of New Zealand First in relation to this bill. It has an approach that can only be described as bizarre. It will support this bill and the Treaty clauses in it, but only, as it were, pro tem, because as soon as Mr Woolerton’s bill on the issue of deleting Treaty principles comes back to the House, New Zealand First will seek to delete them from this bill.

As I have said on more than one occasion in this Parliament, Treaty settlements are, and should be, a cause for great rejoicing in New Zealand. As I have also said before, quoting Isaiah, they give people the chance to undo the burdens of the past, so that everyone can point to the future in a spirit of optimism and goodwill. But this is bad legislation. It really does not address some fundamental issues. If you like, it is a paint-by-numbers bill that, in a boilerplate kind of way, seeks to impose on this settlement the standard forms, terms, and conditions of other settlements. As I have attempted to explain by reference to the Ngāi Tahu Claims Settlement Act, every settlement is, in a sense, sui generis, and it requires sui generis legislation. It requires people to look at the particular circumstances that gave rise to the settlement. I regret to say that with this legislation, the particular circumstances of the Te Arawa people have not been addressed. That is why, with great disappointment, really, and bearing in mind the history of negotiations over the years, National will be opposing the passage of this bill.

Tēnā koe, Mr Chair. Kia ora tātou katoa. Firstly, I will summarise some of the comments made this afternoon and this evening in respect of this bill. I will make it really clear to the Minister in the chair, the Hon Mark Burton, that, in a sense, I am fairly confident that most iwi Māori would like to move forward, with the settlements behind us. But the mere fact that most of the iwi involved in settlements have experienced splits that have devastated iwi, hapū, and whānau, in some cases resulting in physical violence in relation to simple things like votes, must tell us there are some concerns about the process. The Māori Party intends to continue to challenge the process used to achieve settlements. But we are also willing to contribute to some ideas that have been put up by a number of people over the years, to try to find a way forward. We also acknowledge the work being done by the new chief executive, or general manager—whatever his title is—of the Office of Treaty Settlements, in going around people and getting some views back, in respect of moving forward. That is the first thing I want to say.

But the practical reality, right here and right now, is that the Te Arawa Lakes Settlement Bill has come to this Parliament, so I attempted in the first part of this session to talk about its history and how it has got here. We talked about the notion that in 1922 one might have thought that this particular issue had been solved, through agreement between the Crown and Te Arawa. I believe that Te Arawa, my people, my koroua and kuia, believed at that time there was a way forward, by way of an agreement that looked at the issue of ownership. The practical reality, right here and right now, is that we are revisiting the dreams and aspirations the people had at that time, on the back of the view that back in 1922 it might have been thought an agreement would provide an economic platform for Te Arawa to develop, through a board. But that development did not happen. Why? The annuity did not increase. There was no issue about reviewing it and, of course, over time the money got to the point of being absolutely useless for the development of the people.

The deed today comes to us against that background, and it is also acknowledged by the Crown that it comes against the background of a breach of the Treaty of Waitangi. There is an acknowledgement by the Crown of that, and that this settlement is about doing something about it. How does the Crown do something about it? It offers some money, and it offers some lakes back. Yet as we said a little earlier, the Crown has offered the lakes back but there is no water—water is not part of the settlement. So one would think that that issue remains out there to be discussed.

The problem, as I mentioned earlier, is that the Crown has assumed ownership of the Crown stratum—that being the water above the lake bed, and the sky above that. The big issue for me is that that matter has not been tested in court, and other speakers, along with myself, have said that this is the first time the notion has been tested in the Parliament of this land. The downside of it, of course, for the benefit of those who are listening, is that it creates a precedent. Once a precedent is created, it says that that is it for everybody else. So everybody needs to know that here it is, on the Table tonight and again on Thursday, that the Crown has assumed ownership of the stratum. How do we know that? It is called the Crown stratum, yet this is the first time it appears in the laws of this land.

So will this agreement be lasting? I have suggested, as have other speakers, that no, the agreement will not be lasting. It will not be full and final, and I make no apologies for encouraging our people to come back and relitigate the whole issue. Why? It has come against a background of protest that started with the “fiscal envelope”. Is the “fiscal envelope” still alive? The answer is yes, it is. I need to say that this bill is set in the context of the “fiscal envelope” and that all of the conditions that came out of the settlements with Ngāi Tahu and Tainui have had an impact on this particular bill. One issue that came up, which I want to put out there again, is in respect of ownership. OK—Te Arawa are getting the lakes back, but in fact they can be outvoted by the other two bodies that are part of the management board or the Rotorua Lakes Strategy Group. Te Arawa can be outvoted, in fact, by the same groups that contributed to the pollution of Lake Rotorua.

I will make just one final, brief contribution to this debate. We have heard from a number of members, including Mr Finlayson who quoted Isaiah. I would like to quote to him Ecclesiastes: “To every thing there is a time …” and it is time for this to be settled. It is time for this Parliament to recognise that despite the comment made in the course of this debate, we have duly mandated negotiators. They are not self-appointed or self-opinionated negotiators, but duly mandated human beings—who I am sure are not perfect, any more than we are, and who I am sure have not negotiated the perfect settlement, any more than the Crown negotiators have, but who have negotiated, in good faith, over years, a settlement. And that is their right to do, as the duly mandated negotiators.

That is a mandate that Sir Douglas Graham recognised, on behalf of the Crown, and I acknowledge his fine work. Margaret Wilson, who followed him, continued to recognise that mandate. I recognise her fine work. I have continued, on behalf of the Crown, to recognise that mandate, and I remind the Committee that so has the Waitangi Tribunal when that mandate has been challenged. I simply suggest to members that it is time this settlement was allowed to reach its conclusion. It may not be perfect, but it is the result of the best endeavour of the negotiators from the Crown and the duly mandated negotiators from Te Arawa to negotiate together in good faith, and to reach this settlement. This is their settlement; this is what they have arrived at. I simply urge members to allow it to progress, and to allow the people to then move on from grievance to development.