Māori Purposes Bill

In the last few remaining moments before the House suspends for its well-earned tea break, I would just like to make some initial comments about Part 1. This part deals with the Te Ture Whenua Maori Act, particularly around the issues to do with delegations to the Deputy Chief Judge, and, if I am correct, around the judge who did not have his warrant but was sitting and hearing cases and was not eligible to do so.

I know that although the debate on this question has not been particularly severe or overexcited, there are real issues here around the principles of justice that are worthwhile highlighting. I know, for example, that the Law Commission is very concerned about some of these provisions that retrospectively validate the decisions of the judge who was sitting without a warrant. He was sitting on a large number of cases. It was not just a few cases and on a few days, at which point somebody realised there was a mistake and it needed to be fixed; he sat on, as far as I am aware, 60-odd cases—

💬 Pita Paraone: 80.

My learned friend tells me 80 cases. So there are real questions around the justice for those people, particularly those who lost in those circumstances—those who took cases, were heard by this judge, and were not successful—and whether their rights have been infringed because there was no validity to the process. They were not properly in the court and dealt with properly by the judge. Those people do have a legitimate case for concern that they did not get justice in the court, because the court was not operating lawfully in those circumstances. I have real concerns for them and for the effects that the judgments may have had on them. In some of the cases, given that there were 60 in a quite short period of time—a month, actually; 60 cases in 30 days—they were not enormous and not particularly time consuming, but they were important to the people who brought them to the court looking for justice in a right and proper process.

I think it is important that this Committee, if it is going to pass this legislation and this part, acknowledges that those people have had their rights to justice interfered with. That is a fair enough thing to say. If the Committee agrees that this provision should pass, then it needs to be very, very clear that it has very good reasons for doing so. Part of those reasons would be the justice implications for those who won in those cases. They were successful and have relied on the validity of that decision since it was made, and these are decisions that were made 6 years ago, in 2000.

The consequences of that decision could well be economic, given that we are talking here about Māori land decisions. They could be to do with issues such as succession and whether shares and land should be transferred or shared between certain members of the family or whānau, and people could have made plans and arrangements because of the decisions that were made. To interfere with that now, after such a long period of time, because of a mistake made by the justice bureaucracy—the court itself and those who oversee the validity of warrants of judges—is in itself an interference with the proper process and with their rights to rely on the court.

Sitting suspended from 6 p.m. to 7.30 p.m.

My apologies, Madam Chair. I was expecting to hear from the new Māori affairs spokesperson from the second-largest party in this House, but obviously the new leadership has kicked in and there does not seem to be any interest in this bill.

I stand to take a call on this part and I want to pick up on a comment made by the last speaker, when reference was made to rights to justice being interfered with, in relation particularly to some orders made by a former judge of the Māori Land Court—and, can I say, a very eminent member of the judiciary at the time—Judge Norman Smith. I am not quite sure, but I believe it was he himself who brought it to the attention of the authorities that his warrant had expired. That is point No. 1.

Secondly, I question whether the rights to justice of people whose cases were affected by the decision of that judge had been interfered with. In any of those cases, if the applicant was concerned about the final decision made by the court, then he or she certainly still had the opportunity to follow due process. The fact that the judge was honest enough to recognise an oversight, in terms of the renewal of his warrant, is not a case, I believe, to suggest that rights to justice were interfered with.

The other issue I want to refer to in this part is the exercising of special powers being delegated from the Chief Judge to the Deputy Chief Judge. During the second reading I made reference to the point that the need to do that is possibly a result of the fact that the Chief Judge is currently also chairman of the Waitangi Tribunal, and that this extra duty has some impact on his ability to carry out his duties. But I was reminded by my caucus colleagues that because we are human we also get sick from time to time, and if the Chief Judge were to take ill, who would carry out his duties while he was off work? So we support the idea of the Chief Judge being able to delegate his authority to the Deputy Chief Judge.

Although we did express some concern about the notion of validation legislation, I think that in the case I detailed earlier, and based on the advice given to us by officials during the select committee process, we do not think that such validation would have any impact on the orders that were made by the judge at the time.

I stand on behalf of New Zealand First to say that we support this part of the bill. Kia ora.

I am very pleased to be here to take a call in the Committee stage of the Māori Purposes Bill. I turn immediately to Part 1, which has three or four main points, as I am sure members of the Committee have already spoken about. I want to make a comment on at least two of those.

Clause 4 deals with the appointment of judges—increasing the permanent judge membership of the Māori Land Court from eight to 14. National supports that, but we raise the concern that, first of all, an increase in the judiciary requires a corresponding increase, I would imagine, in resources. We did not receive any confirmation that that would necessarily follow. The other thing is that while, no doubt, someone did some work on the number of judges that might be required, we are told that 14 would not be appointed to the court at once, or an extra six, but that as they were needed others would be appointed.

I stress that although it is all very well anticipating an increase in workload, it seems to me at least that the way the Te Ohu Kai Moana Trustee Ltd has been allocating the assets in respect of Māori fisheries is running reasonably smoothly. Of course, there is the other jurisdiction around the foreshore and seabed.

As I say, we recognise that there is probably a good reason for the increase in judges, but we would wish to see some corresponding increase in resources should it prove necessary to increase the number to 14. It is no use having judges sitting there without the necessary support.

I turn to clause 5, which enables the Chief Judge to delegate to the Deputy Chief Judge some or all of his or her functions, powers, and duties conferred by the Act. Again, at the Māori Affairs Committee we had questions about that and asked the officials whether this was something that happens in other jurisdictions. If I recall correctly, although an express provision of this nature does not necessarily apply in other parts of the judiciary, nevertheless there is an understanding that there is statutory power for the next senior judge of any other court to take over if the Chief Judge is away.

There are legitimate reasons why a deputy should have the powers of the Chief Judge, and those were set out as things like illness or when a Chief Judge is prevented from exercising duties because he or she is not able to be there. If I remember the officials’ advice correctly, one of the reasons it was deemed necessary for these powers to be given to the deputy was the dual role of the Chief Judge, who is also chairman of the Waitangi Tribunal. Of course, New Zealand First has a bill on this very matter, relating to conflict. So the delegation provision seems a reasonable thing to do, but, again, it was not without some reasonably investigative discussion in the committee.

The part that concerns National most is the provision that validates the 83 decisions of former Deputy Chief Judge Norman Smith. He basically acted without a warrant. His warrant had expired, but he continued to make certain decisions, in any event. We added a note into the commentary on the report back. Although some of the committee considered that retrospective validation is justified, the National Party does not agree with the use of retrospective legislation to validate the types of decisions in this particular case.

In other words, what has happened is that the parties who were the subjects of those cases before Norman Smith actually had no idea that he was acting without a warrant at the time. Although that may not, in the long run, make any difference, none the less we do not think that the way this matter has been approached is desirable. The jury is still out for us as to whether we support this provision. He just carried on making decisions. Someone was remiss in not realising that Judge Norman Smith was acting outside his warrant. That is not good; really, it should not be tolerated. We have now come, in the form of this bill, to validate his decisions. As I say, National has real difficulty with that.

💬 Hon Dover Samuels: What do you think should be done about it, Georgie?

My friend on the other side of the House Dover Samuels is singing out about what I think should be done about it. Well, we had some suggestions at the Māori Affairs Committee. We did ask the officials whether they had gone back to the parties against whom and in favour of whom these decisions had been made. We thought that was a reasonable thing to do, but the officials did not think so, simply because time has now elapsed and certain parties to the actions have acted on those decisions. Yes, that is an explanation, but it does not necessarily make it right. I hope the Māori Land Court is watchful in the future and does not let this sort of thing happen again, even though there is now provision to cover this sort of eventuality.

The other provisions in Part 1 are around—and my friend Pita Paraone was talking about this just a minute ago—the Deputy Chief Judge being able to exercise the powers of the Chief Judge. The explanation given as to why this should be so is that judges have a certain workload and a certain distinctiveness. Officials can always give a good reason for some of these things, but I do not know whether the reasons are always logical or necessarily appropriate.

However, the provision in Part 1 that National has most concern about is that relating to the validation of Norman Smith’s decisions. I hope that once the bill goes through, officials of Te Puni Kōkiri will consider writing, at that stage, to the persons affected, anyway. I cannot remember whether we asked the officials to do that, but the Minister of Māori Affairs might like to get to his feet and tell us whether there is any plan for the officials to let people know what has happened. The decisions will have been validated, but I think that, if nothing else, it is pure courtesy to let those people know what has happened. There is provision, I understand, for the decisions to be reheard, if the parties want. Perhaps the Minister could give some assurance that he will treat this matter in, at least, a courteous fashion and instruct his officials to write to the parties concerned to let them know what has happened. Perhaps he would like to take a call to let us know that.

The other thing the Minister might like to take a call on is the actual position of the Chief Judge. Right now, I understand, the Chief Judge is sitting on only one tribunal claim. It seems to me, in the context of his sitting on only one Waitangi Tribunal claim—flora and fauna—that he does not seem to be particularly busy. Maybe the Minister could give us some backing by saying that. I remember that when I was sitting on the tribunal, Chief Judge Eddie Durie was extremely busy. So perhaps the Minister might like to take a call and explain why those provisions are necessary.

Tēnā koe, Madam Chair. Tēnā tātou katoa. E te Minita, tēnā koe i tēnei pō. I want to make just a few points.

💬 Darren Hughes: Te wepu.

Tēnā koe e te wepu o tērā taha o te Whare. Kia ora tātou.

[Greetings to you, the whip on that side of the Chamber.]

I will make a couple of points in respect of this bill. Firstly, I repeat for the Minister that the difficulty with these sorts of bills for people like me is that we are pulling together a number of different things under one bill, and we have to vote on a whole set of complex issues. It seems to me that pulling together provisions about fish, Treaty claims, and judges is a pretty difficult exercise to follow through, and one would have hoped that we would split up these provisions. The difficulty with this sort of bill is that there are some good points that could be helpful to our people, and there are some, obviously, that need a lot of work. That came through in the submission process. That is the first point.

We want to comment on other points, and I will run through them quickly. The notion of the appointment of judges and the lifting of the number of judges is a good idea. We support the notion in clause 4, and we have no problem with the notion in clause 5 of the Chief Judge and the Deputy Chief Judge working together, where the powers of delegation are followed through.

Metiria Turei and others have noted concerns in respect of decisions made by Judge Norman Smith, and we support those comments. Georgina te Heuheu has raised those issues, as well. The validation of his decisions creates a lousy precedent, and we need to take heed in the future. I also support the notion that Metiria Turei raised in respect of the decisions already made. It seems that the Māori Affairs Committee gave the issue a fair bit of discussion and felt that there was no going back on those decisions. Suffice it to say, the Māori Party signals a concern about this sort of precedent and hopes that it will not happen again.

I draw the Committee’s attention to an amendment that the Māori Party has put on the Table for consideration. It is to do with the issue of the appointment of judges. Another amendment has to do with the extension of judges’ warrants so that they can practise not just in the Māori Land Court but also in the other courts. There is a recommendation on the Table relating to this, and I would like members to look at that. It would broaden the judges’ scope and extend their warrants so that they can practise not only in the Māori Land Court but also in the District Court. The recommendation relates to clause 4. We suggest adding a new subsection (8) to section 7 of Te Ture Whenua Maori Act, which clause 4 amends. The new subsection states: “(8) Any Judge appointed under subsection (1) may also preside in a District Court, if agreed by the Chief Judge.” That is our recommendation.

The reason is that we believe the judges’ expertise should not be limited simply to land issues. The judges bring a particular element of expertise in tikanga Māori that would also pay dividends in respect of their practice in the District Court. I would like the Minister and other members to consider this amendment. We feel that this amendment would enable a good spread of expertise across the court system, and would allow us to use the expertise of those judges, who, in particular, have an acknowledged background in tikanga Māori.

So those are some of the points that I put before the Minister. The main one, of course, is simply about supporting the concerns other members have raised. Secondly, our concerns are basically about the pulling together of a number of bills into the one place when, in fact, some of them could have been separated out—in particular, the various clauses around the Treaty of Waitangi that cause concern. We will be speaking to that issue shortly.

Finally, I put to the House the recommendation that is on the Table in respect of allowing the jurisdiction of Māori Land Court judges, with the agreement of the Chief Judge, to extend to the District Court. So I leave that recommendation for the Minister, and hopefully he will provide some sort of response to it. Kia ora tātou.

Several submissions on the Māori Purposes Bill commented that the workload of the Māori Land Court was already heavy and that delays were being experienced. Although Te Ture Whenua Maori Act allows temporary judges to be appointed, permanent appointments are needed to address ongoing work levels. The intention is not to appoint six extra judges immediately, but to make additional appointments in stages. At present the court is operating with a full complement of eight judges, plus an additional two temporary judges.

In relation to the retrospective legislation, very careful consideration was given to the need to validate Judge Smith’s decisions. It is the best way of providing certainty to the applicants and other parties concerned. The decisions were made by an experienced former Deputy Chief Judge for a short period after the expiry of his temporary warrant. There are no issues about the judge’s expertise or competence. Individuals and their families should not be left open to the stress and expense of other action. It is important to mention that this provision is not groundbreaking. Legislation of this kind is needed from time to time. In regard to the Māori Land Court, in 1991 the Government of the day, National, passed retrospective legislation to validate decisions of Judge McHugh.

I am not too sure whether this is the appropriate time, but I was hoping that the Minister, the Hon Parekura Horomia, might respond to the notion of extending the warrant of Māori Land Court judges. I stand up and offer him the opportunity again to have a go at that one, bearing in mind that if we are talking about workload—and he just provided some background to that—one would support that notion. Surely extending warrants a little bit wider—if they are required—might help with that situation. Of course, it is always in the hands of the Chief Judge. I stand to encourage the Minister to respond to that notion, if he can.

In talking to the proposed amendment, I say that it does raise a particular issue for me. If we support this amendment as proposed by the Māori Party, it begs the question whether the exchange will be a two-way one. I am not quite sure whether, in fact, the Māori Party would appreciate a number of non-Māori judges presiding in the Māori Land Court, making decisions that will affect Māori. When I say that, I want to make it clear that I am not critical about the appointment of non-Māori to the Māori Land Court jurisdiction, because I believe that race should not be an issue, and that we do get the best people presiding on matters such as Māori land. I am not sure that this is the intent of this amendment, but on the face of it I cannot see New Zealand First supporting it.

I want to comment on Te Ururoa Flavell’s amendment, although it is actually Minister Parekura Horomia’s job to rebut it as this bill is in his name. I do not believe that the member Te Ururoa Flavell’s proposed amendment is in order. It seems to me to be outside the scope of this bill. I raise the question that if the stated reason for increasing the number of judges from eight to 14 is an increase in their workload,—and we are talking about their workload in the Māori Land Court—then why would anybody in his or her right mind consider that we allow the Māori Land Court judges to also sit in the District Court? That seems to make no sense at all; it is totally illogical. I have already questioned whether there is sufficient workload at this point in time to warrant an increase in the number of judges. There may be in the future; we probably think that there may be. But the fact is that the allocation of fisheries, in regard to that aspect of an increased workload, seems to be going reasonably well anyway.

Maybe our anticipating the need for this increase may come to nothing in the end. But, as I say, the stated reason for this increase in the number of judges is the increase in their workload. In my view it is absolutely a nonsense that a suggestion should be made that they also sit in the District Court.

I comment on the point that Pita Paraone made, as well, which is whether that would then mean that someone would seek a corresponding crossover. I do not even have to raise the issue of whether we are talking about Māori judges or Pākehā judges; the reality is that the jurisdiction is different. National would not support this amendment, on the grounds that it is totally illogical with regard to the purpose stated in the bill.

I move, That the question be now put.

Motion agreed to.

The question was put that the following amendment in the name of Te Ururoa Flavell to Clause 4 be agreed to:

to add as subclause (2) the following subclause:

(2) Section 7 is amended by adding the following subsection:

“(8) Any judge appointed under subsection (1) may also preside in a District Court, if agreed to by the Chief Judge.”