Affiliate Te Arawa Iwi and Hapu Claims Settlement Bill

Let me start again. My humble thanks to the Minister in charge of Treaty of Waitangi Negotiations; the whip put me wrong, but I will not say which one.

It is quite important that this issue is sorted out. I would like to hear the Minister give his dissertation on why we cannot do it. I have heard other speeches made by other members in the House as to why the uncoupling cannot happen. I think Part 1 would be the most appropriate part in which to insert some acknowledgment that there is an issue in terms of why Tūhourangi and Ngāti Wāhiao should not be uncoupled. Part 1 is headed “Purpose of Act, acknowledgements and apology, interpretation provisions, settlement of claims, and miscellaneous matters”. There should be some recognition, at least, in Part 1 of the issue, because if there is not, then the issue will keep on going and going, and, whoever is in Government in, say, even 10 years’ time, people from Ngāti Wāhiao, from Ngāti Whāoa, and from Tūhourangi will be back here to try to sort out that issue. I can put a ring round it.

I think it is important to acknowledge that there is an issue. I think it is important to see whether there is a way that we could get through the issue. I would have thought that a Supplementary Order Paper along the lines of the uncoupling of Tūhourangi—[Interruption] I know that the Minister says no, and I know the reasons why. The Minister does not want to create another affiliate and therefore upset the quantum. But if we uncoupled the groups and said that it did not mean that there would be an extra affiliate, and that it would have no effect on the quantum, then we might be able to get round it.

I am interested in what the Minister has to say, and whether we could do it through Part 1, considering that it includes the purpose of the Act.

I am advised that there is actually no practical way of achieving what Mr Henare wants. I think it is very dangerous to legislate on the floor of the House to change negotiated agreements, because it reopens the whole process of negotiation of Treaty settlements. It would be an endless process and quite a dangerous process. I was quite concerned about what happened in the case of Te Rōroa. Although there were some issues there, it seemed to mean that we were getting ourselves into potentially dangerous territory in revisiting details of a grievance by means of the parliamentary process.

This settlement is the clear expression of the process that occurred. Obviously, if at some future point there is a determination by those involved that they wish to separate, that could be relatively easily done within the confines of this legislation. They could separate into two groups within the affiliate structure. The structure is essentially the total settlement; the component parts can be revisited in that regard.

While I am on my feet I will mention again my amendment to clause 12 in relation to Rotorua airport. The amendment is specifically drafted in terms of “To avoid doubt,”. All the legal advice I have is that any claims in relation to the airport are not affected by the bill as originally drafted, anyway, and, indeed, the people from Raumatā Marae themselves are quite satisfied about that. But I am aware that at least two parties in this House do not entirely share that view. Again, I have some reluctance to intervene by way of an amendment on the floor of the House that runs against where the negotiators themselves have got to. The amendment expresses avoidance of doubt, to make it clear, in case anybody has any concerns about this matter, that claims in relation to the approach to, and airspace over, the airport are not included in this settlement. But I would emphasise again that the bill in its current form, before that amendment is passed, does not affect that claim, because the Wai 918 claim does not cover the issue of airspace over, and a flight path to, Rotorua airport.

I guess we can be grateful to the Minister in charge of Treaty of Waitangi Negotiations for that explanation. I just hope his not having done something about that issue during the negotiations will not result in problems further down the line. But I certainly appreciate the situation that, a deed having been negotiated, legislators can get themselves into a bit of a pickle trying to do something about it on the floor of the House. I guess that is why the purpose of this bill is so important and is clearly set out. Clause 3 states that the bill gives effect to a deed of settlement that has been negotiated by the Crown and certain representatives of the Te Arawa affiliates. Clause 4 states that the Act binds the Crown. That is a small provision but very important.

Part 1 also sets out the acknowledgments and the apology. Those, too, are extremely important. I have always thought it is important that a claimant iwi that is settling can see in legislation the things that are part of the settlement—the things that the Crown acknowledges date back to when breaches first occurred. Someone mentioned in an earlier speech that these breaches had occurred a long time ago. Yes, they did, but let us not forget that some breaches occurred recently as well—in the 1960s and the 1970s. In this case, some quite significant breaches occurred in respect of Māori Land Court title rearrangement and so on.

Then we come to the apology, which is hugely important. I am sure all members of the House understand by now, after the many apologies given by the Crown in this place, how important an apology is to the claimant group—the iwi or hapū in question. One can never underestimate the power of the Crown apologising to iwi. It is the Crown’s chance on behalf of New Zealanders to say sorry and also to restore to itself some of the honour that it lost when it breached the Treaty—in this case, in relation to the affiliates of Te Arawa.

Then we come to clause 11, which is what my colleague was talking about earlier—the designation of the affiliates and the affiliate ancestors. Given that we had submissions from Ngāti Wāhiao in respect of their designation alongside Tūhourangi as Tūhourangi Ngāti Wāhiao, and also from Ngāti Tahu and Ngāti Whāoa about their designation, I wonder whether the Minister might explain why clause 11(1)(a)(vii) reads quite simply and directly “Tuhourangi Ngati Wahiao”, and clause 11(1)(a)(viii) states “Ngati Tahu-Ngati Whaoa”. I wonder why that difference is there. Does it mean something? Perhaps Ngāti Tahu - Ngāti Whāoa—[Interruption] I see that Te Ururoa Flavell is giving me some advice on it, but I think I will get the Minister to enlighten me. The difference seems odd, given that those two designations sit one above the other in the text of the bill. The issue for the iwi involved seems to be the same, yet in the bill they are not described in quite the same way. It is amazing how that little hyphen has really excited my brain as to why that might be.

Lastly, I go to clause 12, which excludes all claims connected with the claims that are being settled here. I guess that, in a sense, although the iwi concerned often find that to be a very hard provision to accept, on the other hand I guess the Crown has to give some certainty to the public at large about what is being settled here.

I will briefly respond to the last part of Georgina te Heuheu’s speech. Of course, full and final settlements can scarcely be full or final if the claims remain active subsequent to the legislation. It is important that the extinguishment occurs at that point. Of course, it is part of the actual deed of settlement that it is accepted that that is going to take place.

On the other matter, I might say as someone who has been around here for a while that I am so pleased when, in the Committee stage, we get back to being able to discuss a hyphen, instead of our simply having a great long second reading speech all over again, which has become the practice. I am advised that, in that particular case, that is how the groups choose to describe themselves. The bill is simply following their self-description in that regard.

Tēnā koe, Mr Chair. Ki te Minita, tēnā koe. I will just say a couple of things, by way of introduction. I have put a paper on the Table with some amendments that basically deal with some of the issues that have been spoken about today.

I will just concentrate in the first part on the issue around Tūhourangi Ngāti Wāhiao. Mr Pita Paraone explained that at the Māori Affairs Committee hearing we heard that, yes, there is an association, obviously, between Tūhourangi and Ngāti Wāhiao, and during the select committee process we heard that Ngāti Wāhiao has mana whenua over the particular area of land around the tupuna whare that the Minister has been to. I tell the Minister that I think the issue here is that shortly, in the next day or two, we will be discussing the Whakarewarewa and Roto-a-Tamaheke Vesting Bill, and that the definition that is being sought here—and I have a letter on behalf of Te Maru o Ngāti Wāhiao—may well, I suppose, diminish, or, in fact, take away, what Te Maru o Ngāti Wāhiao believes are mana whenua rights in the Whakarewarewa Village. It was keen at the select committee to try to clarify the issue of the coupling, or at least the uncoupling, so that when we get to the Whakarewarewa legislation its mana whenua rights within the Whakarewarewa legislation will be protected, and that is why the issue has come almost backwards, if one likes, to this particular bill.

So at the hearing, as Pita Paraone and Tau Henare mentioned, the question was asked of one Rangipuawhe Maika as to whether, as a senior koeke of Tūhourangi, he would be amicable to the notion of the word “and” being inserted between the two tūpuna, Tūhourangi and Ngāti Wāhiao. At that hearing, as Mr Henare said, there was agreement to that, and he was quite happy with that. Then Rangipuawhe Maika went off, and after a week or so he came back and said that Te Pūmautanga o Te Arawa was not agreeable to that. At the heart of the issue is how it is possible for everybody else to make a decision in respect of the mana whenua that Ngāti Wāhiao believes that it may have. How is it possible that Ngāti Wāhiao has mana whenua for the particular lands that it has, yet a bigger group that does not have interests in those lands—except for Tūhourangi, which may well cross over those boundaries—makes a decision on the outcome?

The real fear from the submitters during the select committee process was basically about the loss of Ngāti Wāhiao as a tupuna, and, of course, Wāhiao is a tupuna. So I have put an amendment on the Table in respect of the addition of the word “and” between the two. Obviously we would have to vote on it, but it sets the scene for the Whakarewarewa and Roto-a-Tamaheke Vesting Bill, which is coming up, because mana whenua is a clear issue in that particular bill. There was a real desire on the part of Ngāti Wāhiao to protect its interest. We heard the story, and clearly, yes, Ngāti Wāhiao and Tūhourangi have for all intents and purposes come together over time, but there was no debate, certainly from those who presented to the select committee, over the fact that Ngāti Wāhiao is, in fact, an iwi in its own right, and it wanted to maintain that view.

The second point that I raise is in respect of the issue around Ngāti Whāoa. I do not think it is too much news that Ngāti Whāoa has attempted, over a number of years, to try to find its distinct place, separate from Ngāti Tahu. Now I speak specifically around Te Rūnanga o Ngāti Whāoa, which is an entity in its own right and has attempted to find its space. It has been through two or three Waitangi Tribunal hearings and ended up in front of Judge Carrie Wainwright to try to facilitate the process. I say to the Minister that we heard at the select committee that from the perspective of Te Rūnanga o Ngāti Whāoa, it did not quite complete the facilitation process needed to allow it to move off in its own way. The fact of the matter is that one of the members of Te Pūmautanga o Te Arawa advised that he or she would wait until after the bill passed and then decide to separate out.

In representing the interests of the constituents—at least the group called Te Rūnanga o Ngāti Whāoa—I was asked to place in front of the Committee an amendment to take out from the bill any reference to Ngāti Whāoa. In doing so, I am representing at least that rūnanga, and, of course, the Committee will make a decision on that amendment. I say to the Minister that I accept there are some complications regarding this matter, but I can say that the issue of Ngāti Wāhiao - Tūhourangi was definitely placed on the agenda at the select committee process, and we hoped that it would be dealt with. Unfortunately, of course, it came back from Te Pūmautanga o Te Arawa and it did not quite pan out, so I am obviously following a duty to place this issue in front of the Committee.

The other issue I raise is in respect of Ngāti Tūkiterangi. Again, I thought this issue had been dealt with relatively easily, because there was a select committee process and an agreement by those concerned and those at the hui that Ngāti Tūkiterangi is a part of Ngāti Wāhiao - Tūhourangi—it is a hapū. There was an agreement to that effect, and we thought Ngāti Tūkiterangi would take that away. I thought there was a clear agreement—and the Hon Tau Henare is nodding, too—that that could be added to the bill with not too much hassle.

💬 Hon Dr Michael Cullen: It has been.

I am sorry, I did not hear that. I am sorry about that. If that has been dealt with, I am pleased. I heard from the Associate Minister, and I thought that matter had not been dealt with, so that is why I raised it. I am happy with that, if it has been dealt with.

Those are three of the issues I wanted to raise in Part 1. As I say, I have some amendments. I know they will go through the process, but at least I can say I raised those issues in the Committee. A real concern, as I say, particularly in respect of Ngāti Wāhiao, is its belief in wanting to maintain and set the scene for the Whakarewarewa bill, with a mandate from its organisation. Similarly, the concern of Te Rūnanga o Ngāti Whāoa is that the iwi be taken out of the bill. I have the minutes of meetings that Te Puni Kōkiri officials have been at where there was a desire on the part of Te Rūnanga o Ngāti Whāoa to be pulled right out of this agreement, for better or for worse. The rūnanga made that decision, and I place that in front of the Committee for consideration. I think at this point in time that those are the two or three issues that I wanted to raise. I will leave it there, maybe for a response from the Minister. Kia ora tātou.

I will take just a brief call on Part 1. It contains the usual clauses one expects to find in Part 1 of a settlement bill. It sets out the purpose, makes certain acknowledgments, contains the apology, and then has various interpretation and jurisdictional provisions. It may be thought that these are really boilerplate provisions, but those who think that would be wrong, because clauses 7 and 8 are at the heart of the bill. As Mrs te Heuheu mentioned, those clauses are very, very significant. Clause 7 sets out the text of the acknowledgments. I am intrigued that the New Zealand First Party, which earlier this year introduced legislation complaining about principles of the Treaty—

💬 Pita Paraone: It’s coming.

—oh, I see, it is coming, is it—is quite happy to support the legislation. I was going to praise New Zealand First for its sensible attitude. To say that one could remove all references in this legislation to the Treaty of Waitangi and its principles would be absurd, because that is at the very heart of it. But I had better withhold my praise until the member has made his contribution. I will be interested to hear what he says about clauses 7, 8, and 12.

The acknowledgments are there for all members to read, and they should be read very carefully because they outline a litany of woe on the part of the Crown, a litany of failings, which, as clause 7(5) records, results in a sense of grievance that exists even today. Clause 8 is an extremely important clause, and it should never be regarded as nothing more than a boilerplate clause, because it sets out the apology. It is all very well for the Crown to recognise the efforts and struggles of the ancestors of the affiliate in pursuing their claims for redress, and it is all very well for the Crown to profoundly regret and apologise for breaches of the Treaty in its principles, but, importantly, the Crown goes further than that. I refer to clause 8(4), which states that “the Crown seeks to atone for these wrongs and assist the process of healing with this settlement, and looks forward to building a relationship of mutual trust and co-operation with the Affiliate.”

So often in these settlements the Crown has apologised, has said it is going to atone, and then moves on to something else and promptly forgets that, once the bill is enacted, the relationship between the Crown and the affiliate has undergone a fundamental change. The Crown has obligations under this legislation that it must not ignore or forget. So often, in my experience, the Crown gets into trouble as it has no institutional memory, and therefore moves on to the next issue of the day and forgets that the relationship has indeed changed. It behoves this place to make sure that that never happens.

Next I refer to clause 12, which deals with the meaning of affiliate historical claims. The Minister’s amendment, which was tabled today, proposes an amendment by adding a new subclause (5). I must say I think that amendment is sensible, even though I share the view of the Minister that it is probably legally, or strictly, unnecessary and is there, as he says, to avoid doubt.

Subpart 3 deals with the mechanics of settlement—settlement of affiliate historical claims is final—and there is the consequential amendment to the Treaty of Waitangi Act 1975. In particular, schedule 3 is amended by including this legislation once it is enacted. Subpart 4 deals with miscellaneous matters such as perpetuities, access to the deed of settlement, and the date on which actions or matters must occur. There is no real magic in that, and I need not detain the Committee by dwelling on Subpart 4. National will support the passage of Part 1.

Tēnā koe, Mr Chairperson. On behalf of New Zealand First, I say that it would be very remiss of New Zealand First not to once again make a comment, in respect of treaty settlements, about the inclusion of references to the principles of the Treaty of Waitangi, which are articulated in Part 1, and, in particular, in clause 7, “Text of acknowledgements”, and in clause 8(2). I can understand why those references are put there; without reference to the Treaty the whole settlement process could not proceed. But that does not diminish the concern of New Zealand First that those same principles, which are often referred to in legislation, do not have a clear definition set by this House. I know that other members of my caucus have often asked for those principles to be articulated by this House, and we have never received any response.

💬 Christopher Finlayson: That’s not right.

Oh, so that member will articulate—

💬 Christopher Finlayson: No, I’ve already done so.

Oh, OK. The other point I want to make about Part 1 is that I am glad that it actually identifies by name the parties to this settlement. When this settlement becomes history, the people who have expressed concerns, particularly concerns about the identity of their hapū—and there was discussion about whether groups should be identified separately—can point to the very people who signed up to the settlement. I refer specifically to those who expressed some concern during the select committee process regarding Tūhourangi Ngāti Wāhiao, and who also made references to Ngāti Tahu - Ngāti Whāoa. I totally support the response that the Minister in charge of Treaty of Waitangi Negotiations made in regard to Ngāti Tahu - Ngāti Whāoa. If that is what those iwi want to be described as, who are we to change that? I think any departure from that would almost see this whole process go back to the drawing board.

I just wanted to make those comments, and also to say that the descriptions of the affiliates are very important for the future of this particular settlement. Thank you, Mr Chairman.

I want to make it clear to the Minister in the chair, the Hon Dr Michael Cullen, that National members will not be supporting any amendments or Supplementary Order Papers to uncouple Tūhourangi Ngāti Wāhiao. I understand perfectly well the constraints on the Minister. The Affiliate Te Arawa Iwi and Hapu Claims Settlement Bill involves a negotiated settlement between the Crown, the Government, and those people, so any change would have to have the acquiescence of both parties. I thought I would make that quite plain. I wanted to raise the specific issue of the coupling of Tūhourangi and Ngāti Wāhiao. As for the coupling of Ngāti Tāhu and Ngāti Whāoa, I absolutely agree that if that is their decision, it is their ball game. However, I believe there is enough talk around the traps to show that Tūhourangi Ngāti Wāhiao will become a problem later on—but that is for the future to decide. I just wanted to make it clear to the Minister that we will not be supporting any amendments about uncoupling.

Every time the honourable member Pita Paraone feels he has to raise the issue of the principles of the Treaty, I feel bound to take a call to say my piece about them. Although I have said it before, I think it is worth repeating that reference to the principles of the Treaty of Waitangi first appeared in our legislation in the Treaty of Waitangi Act 1974, I think—

💬 Pita Paraone: 1975.

—1975! Of course, that was a bill in the name of Matiu Rata, who might even be the member’s whanaunga. There is a good reason why that reference was put into the legislation, and not “the terms” of the Treaty. Part of the reason is that Māori mostly signed the Māori version of the Treaty, but also some signed the English version, so we have a Māori version and an English version in the Treaty of Waitangi Act 1975. If we were to say “the terms” or “the provisions” of the Treaty, we would have to ask which Treaty, because there are, in essence, two Treaties, if we take the Māori and English versions side by side. Over the last 20 years, the task undertaken by the Waitangi Tribunal, which was given the job of measuring the Crown’s conduct against the principles of the Treaty of Waitangi, has been to discern from the two versions the underlying essence, the underlying principles, of those versions. In a way, it is very apt. I think the process we have followed to settle historic injustice has been served very well by that statement. One day, I am sure, our friend Pita Paraone will discover those principles for himself. They are easily found in various judgments and reports.

💬 Pita Paraone: But the laws are made here.

The laws are certainly made here, and they are made in the courts as well, I say to my friend Pita Paraone. Although we say Parliament is the highest court in the land, laws are being made daily in our courts as well. So there you go.

The CHAIRPERSON (Hon Clem Simich): The amendments in the name of Te Ururoa Flavell to subparagraphs (vii) and (viii) of clause 11(1)(a) and to paragraphs (g) and (h) of clause 11(2) are out of order because they are inconsistent with the deed of settlement.

The question was put that the amendment set out on Supplementary Order Paper 250 in the name of the Hon Dr Michael Cullen to clause 5, and the following amendment in his name to clause 12, be agreed to:

to add the following subclause:

(5) To avoid doubt, Affiliate historical claims does not include any claim submitted to the Waitangi Tribunal in accordance with the Treaty of Waitangi Act 1975 in respect of the airspace over, or the flight paths to, Rotorua airport.

Amendments agreed to.

Part 1 as amended agreed to.

I raise a point of order, Mr Chairperson. I do not want to take up too much time, Mr Chairperson, but could you give me some clarification in respect of my amendments to clause 11 being out of order. Is there some rule or explanation in respect of the amendments I placed before the Committee being automatically ruled out of order? Was it solely because they relate to a settlement that has been negotiated? I am seeking some clarification.

The CHAIRPERSON (Hon Clem Simich): Yes. These issues are pretty clear, especially when we are dealing with a deed of settlement that has already been signed. It is rare to accept amendments to it. I do not think I can be much clearer than that. It is a deed of settlement; it is different from normal legislation. It is a matter that has been agreed to. On that basis, the amendments were inconsistent with the deed itself. Thank you.

Part 2 Cultural redress

The CHAIRPERSON (Hon Clem Simich): The debate on Part 2 includes clauses 21 to 87 and schedules 4 and 5.