Te Here ā Nuku (Nelson Tenths) Bill
Point of order, Mr Chair. I seek leave for all provisions to be taken as one question.
CHAIRPERSON (Greg O'Connor): Leave is sought for that purpose. Is there any objection? There is no objection. The question is that the preamble, Parts 1 to 6, and clauses 1 and 2 stand part.
Mr Chair, thank you for the opportunity to carry this matter through the House. We have tabled one minor amendment since the Finance and Expenditure Committee provided its report back to the House on 29 July.
A minor but important matter of clarification was identified that requires a bit of an amendment to the bill—I’m tabling that amendment with the Clerk; I think I’ve just seen it up there—that provides clarity for the Department of Conservation and Te Here ā Nuku Trust in relation to liability in the event of a fire. An inconsistency in drafting was identified that left open the possibility that the Department of Conservation - Te Papa Atawhai may be liable for a fire on a reserve that any another entity administers. Sometimes reserves are administered by different management organisations. This amendment to clause 98 clarifies that the actions of all the groups or other persons that are referred to are intended to be the responsibility of either the Department of Conservation - Te Papa Atawhai or the other entity. The amendment is minor; it does not change the intent of relevant clauses regarding liability.
Mr Chair, can I just clarify before I begin that we are, indeed, taking this bill through as one part rather than in—
CHAIRPERSON (Greg O'Connor): Yes, that is correct.
RACHEL BOYACK: Yes, great. I am going to, I guess, deviate a little bit from our usual practice on this side of going through clause by clause and actually jump around a bit, so forgive me in advance for that, but I will be clear where I am raising questions for the Minister.
I want to begin by looking to Part 3 around the Te Here ā Nuku national park land, and I am just interested in having some dialogue with the Minister on this particular part of the bill. The reason for that is that under this part, and just taking up the part as a whole, parts of the Abel Tasman National Park will be transferred to Te Here ā Nuku Trust—not the entire park, but part of the park. My understanding is that there will be an arrangement in place for 25 years in terms of the management of the park and that, for those members of the public who use the park, nothing should change for how they access the park or use the park. It will be a seamless change. Towards the end of that 25 years, there will be a review of how that continues to operate. I’ve got some questions for the Minister on that, as to what the public can expect in terms of how things continue to operate—how that review will take place, and when it will take place.
But, before that, the principle in law is that this land has actually always been owned by the trust. There is some commentary in the public where members of the public and others have stated that this is land that has been gifted to the trust. It’s my understanding that the court processes were very clear that this land has always been owned by the trust and that the Crown, in its role, has inaccurately had ownership of it—not intentionally, necessarily; there’s nothing legal that’s happened from the Crown’s actions—but this isn’t a matter of the Crown gifting land to the trust, it’s a matter of that land having always been owned by the trust.
I think it would be helpful for the Hansard and for the public paying attention to this morning’s debate just to have some clarity from the Minister on the legal status of that land; and then, also, what the public can expect from how that land will operate; and then, any commentary the Minister can make around how that review will occur before that 25-year period. So there are three parts to my question, as the beginning. Thank you, Mr Chair.
Thank you, Mr Chair. It is really a privilege, as I’ve said before in the earlier two readings, to be able to speak at committee of the whole House in relation to this bill. This is a very historic moment, and so I did want to make some opening remarks and then, of course, I have a few specific questions for the Minister, as well.
This isn’t an ordinary piece of legislation. It is the result of what, by any measure, is one of the longest-running legal disputes in our country, a promise of land essentially made in the 1840s that was almost immediately broken and now, 180 years later, it has been put right. While we are speaking about a bill—legislation, today, to give effect to some of the agreement—the totality of the agreement itself and this bill can’t be separated; the two sit side by side. I appreciate the initial question from my colleague Rachel Boyack, who’s just asked for the Hansard to record that the land is not being returned. This is not Waitangi Tribunal settlement. This is a trust law contract case, which really does put it in a unique place in our history.
There were a number of points within the settlement itself that are useful to note, and I would appreciate if the Minister would be able to acknowledge those things, as well. The finding that the Crown as a fiduciary had a strict duty that it owed—a single-minded duty to protect that land—I think, is worth noting for the record. That high duty meant that the Crown’s behaviour was very likely to breach that duty over the period of the years since that duty was assumed. To my view, that also justifies the final payment, as well as the return of the land that was made to those beneficiaries of the trust.
I also thought it was an interesting point of law that the courts found the birth of the Crown’s fiduciary duty was the direct legal consequence of the extinguishment of customary indigenous title. That is new for New Zealand law, but it’s not new for global law in this area. That finding leant on a finding by Canadian courts, as well. Again, I think it would be useful if the Minister recognised some of the unique factors in the broader settlement. The rule against perpetuities not applying is another one, and that’s something that I’ll refer to later as we walk through the legislation.
If I move to the specific clauses of the bill that I’d appreciate the Minister’s comment on, just given the historic nature of both the settlement and the legislation that’s followed, I would go first to the purpose section. I would invite the Minister to speak to the distinction in clause 3(d)—so, the difference between those provisions where legislation is required to give effect to the settlement versus where legislative authorisation is desirable.
What does the Minister for Māori Crown Relations: Te Arawhiti view as things that are required to give effect to, as opposed to things that are desirable to? In clause 4(2)(a), “the provision to have full effect on that date;”—I’m missing a little bit of a page, but essentially, it says that once this bill passes and it gets Royal assent, the legislation will be in effect. But of course, a number of things would have been needed to have been done in the background to enable the legislation to be given effect to, and I wonder if the Minister could comment on the conversations with the trustees and the beneficiaries while this legislation has progressed to the House, just to assure the committee that those steps have been taken so that the legislation can be effective from the date of Royal assent. I might leave those two questions with the Minister.
Thank you for the opportunity to respond to these important questions that touch on one of the most bespoke arrangements ever curated in New Zealand’s parliamentary and executive histories. Of course, it’s a very important part of the world, and actually, an area of the world where Abel Tasman himself and the Janszoon and various other boats arrived many, many centuries ago.
Just in terms of the ownership matter, the court declared and acknowledged that the ownership in these lands was retained by the descendants of the original owners of those lands. In equity, of course, you have a distinction between the legal ownership and the beneficial ownership, and what the court declared, ultimately, was that the beneficial ownership has been retained in the descendants of the original owners, but the legal ownership held in trust is actually vested in the Crown. One of the key purposes, if not the key purpose, of this legislation is to actually carry out the terms of the resolution arrangement between the Government and, ultimately, Rore Stafford and others to transfer the legal ownership of this land from the Crown to the trustees holding the legal ownership of these lands in question in trust for the beneficial owners.
Now, in order to give effect to this arrangement, we have now reached this moment in our parliamentary time to give effect to that by way of legislation. One of the key reasons why we want to—and very desirable to do that—is that the Crown has, just like a number of other organisations and people out there, different responsibilities and different obligations; that if we continue to hold, as the Crown continues to hold, the legal ownership of these lands in trust for the beneficial owners, then it has potentially overlapping or counteracting responsibilities to the beneficial owners and trust compared to the general public because of the nature of the Crown’s position across the responsibilities that it has, and that creates or generates the potential for conflict.
We resolved in a resolution agreement for the legal ownership to be transferred through to the trustees and for that land to be held in trust for the beneficial owners, who were always the beneficial owners as acknowledged by the judicial decision recently. That is absolutely desirable, because we don’t want any conflict about who does what in this situation.
In response to the critical question about the ownership/management of this land as part of the National Park, it will continue to be owned by the beneficial owners. Some land inside the park, particularly areas of the world famous iconic Great Walk, the Abel Tasman Coastal Walk—sorry, the Abel Tasman Coastal Track. It’s a track. It’s not a goat track. It’s actually a wondrous track, especially places like Tapu Bay and Tōtaranui, all the way out towards Awaroa, and of course, the well-known recreation reserve Kaiteretere, also referred to as Kaiteritiri at times. If you ever get the chance to go there, Mr Chair, I recommend you do; beautiful place. Just don’t go in January when there are thousands of people there.
There will be seamless continuity of ownership, being the beneficial owners, but there will also be an ongoing front-facing Te Papa Atawhai Department of Conservation management of the track. If you want to book to go and stay in one of the campgrounds or one of the huts along the way, that will continue with the Department of Conservation managing those interactions between manuhiri, or visitors, to the coastal track and land in question; the whenua in question.
Now, there will be, and there is, I think, a licence arrangement that’s been curated between the trustees who hold the land in trust and the Department of Conservation to preserve and uphold public access to the land by way of the coastal track, but also to ensure that there’s confidence in the way this area will be managed over time. There is one area, Tōtaranui, that has a slightly different arrangement in relation to the reserve. We can get into that if we need to, but I’m sure that the team across the Chamber has poured through this. That will be reviewed in 22 years.
Thank you, Mr Chair. Look, just to reiterate, this resolution is uncontested across the Chamber. Obviously, we’re intending to support it. I wonder in regard, Minister, you spoke of the impacts on the public and the broader consequences. Certainly, most of us, I think, are very relaxed about that. We are very happy and content that Te Here ā Nuku will manage its part of the resolution in terms of the access to the Abel Tasman and the like, and then at that point it’s up to them how that’s managed.
But I wonder, Minister, how will the Crown manage its other Treaty obligations? This is not a Treaty settlement, of course—it is a resolution—but how will it manage its other Treaty obligations where there are overlapping iwi or mana whenua interests in these particular sections of land that we heard from at the Finance and Expenditure Committee from some of those impacted tangata whenua parties? How will the Crown ensure that there are not Treaty breaches affected by this resolution and that the Crown maintains its obligations to protect iwi from harms from this resolution so far as it has obligations more broadly to Te Tiriti?
This question is not one that is unfamiliar insofar as when Treaty settlements are done. There are often overlapping interests in rohe, and it is one of the fundamental tensions of settlements. Some of those tensions also exist in this resolution, and I just wonder if the Minister can elucidate the clarity that the Government has on how it might manage those tensions. Thank you.
Thank you, Mr Chair. I just have a quick question for the Minister for Māori Crown Relations: Te Arawhiti off the back of his very helpful comments, and I really appreciate his response around Abel Tasman National Park. I do just have a specific follow-up question because there have been suggestions made by some in the public domain that a better option could be a co-governance model, essentially for the land to be retained in full Crown ownership.
My question is quite specific because this legislation is enabling legislation to enable the resolution agreement that was signed between the Crown and the trust last year. If the Finance and Expenditure Committee had made changes to that model, or if changes were proposed by Government for a different model around the land that is currently held in trust by the Crown at the Abel Tasman National Park, what would that mean for the status of the resolution agreement? Would the Crown end up in a situation where we had to go back to renegotiate that resolution agreement? Would that take time, money, and effort, and would that put us in a position where the Crown was having to renegotiate with beneficiaries, which would, essentially, put us on the back step?
What would be the impact on the agreement that’s been made, because my view of this is that if the Finance and Expenditure Committee had made substantial changes to these parts in bill, it, essentially, would have made that resolution agreement null and void. It would have put us back months, or possibly years, in having to renegotiate with the trust, and that would have been detrimental for everybody who has an interest in this matter. It’s quite a specific question: what would be the unintended consequences for the resolution agreement and for the relationship between the Crown and the beneficiaries if we had a situation where the select committee had recommended big changes to this part of the bill?
Thank you, Mr Chair. I do have a rather specific question, separate to Rachel Boyack’s—and I agree that they have been very helpful comments from the Minister in the chair, and so thank you. It’s about the licence arrangements that the Minister of Conservation mentioned in his contribution. I note that it is a 25-year licence term and that at about the 22-year mark, there will be a review. My question is about that specific review and the purpose and scope of that.
It says in the legislation that the review is meant to be an opportunity to discuss the effectiveness of the licensing regime, and I want to ask the Minister whether there will be any guidance, or what kinds of things would be taken into consideration in that review at the 22-year mark. What will they be looking for to determine the effectiveness of the licence arrangements?
I also want to ask the Minister: if the licence is then not extended and not renewed and a new licensing arrangement is not agreed to, what then happens with regard to the activities on this land that the Department of Conservation (DOC) undertakes? Also, the Minister mentioned in his contribution that the Department of Conservation Te Papa Atawhai would be responsible for maintaining tracks, and so on and so forth. So what happens to the maintenance responsibilities if the licence term isn’t extended or if a new licence isn’t entered into?
I also just want to check with the previous clause around the annual reporting requirements of DOC with regard to this. I note that the department will have to provide an annual report to trustees—which seems fair—three months after the end of each operational year. There is a whole list of things that the report must deal with in terms of activities and the relevant issues that might crop up during the licensing arrangement term, and I want to know whether those are the types of details that will then be taken into account at the 22-year review.
I’m also keen to get a sense of this: if there’s annual reporting that is provided to trustees, which is, clearly, to deal with any issues that might crop up during that particular year, then why is the review just after 22 years? Will there be some sort of an ongoing process to lead to that review? I’m guessing now, on reading about the reviews, that it is because of the 25-year licensing term. I’m also keen to get a sense of why the term of 25 years was landed on, and whether that was related to the court rulings or whether it was separate to that. Could the Minister just very quickly also give us a sense of, in clause 43, “Limitations of Department’s activities”, the types of authorised activities that the Minister envisions would take place, outside of, perhaps, the tracks, which he mentioned, as well.
Thank you for the various important questions. Again, it’s a magnificent place, Te Tai-o-Aorere and Mohua, and if members ever have the chance to go down to the Abel Tasman Coastal Track, let me know and I might be able to come with you.
Just in relation to the licence arrangement—because that’s provoked a lot of inquiry—it is confidential. But any review of such an arrangement, and there are other similar arrangements around the country—there’s not a lot of them, but there are some arrangements where the Department of Conservation (DOC) does use privately owned land in order to enable tracks for the Great Walks. I think there’s one down at the Hump Ridge, or there are couple of arrangements down at the Hump Ridge, which is way down next to the sausage capital of New Zealand, Tuatāpere.
DOC doesn’t always own land where there is a track or an experience taking place, and so it’s not new in terms of the arrangements that DOC has, but you’d imagine that over time there is some need and necessity for repairs and maintenance, infrastructure, and other relevant investments. For example, down in some of the bays in the Abel Tasman, there is quite considerable septic and waste-water infrastructure, and so making sure that that infrastructure is looked after and enabled and that there is sufficient time for Te Papa Atawhai DOC to commit to investment in capital expenditure over time is quite important. You can’t just do that over a two-year or a three-year licence; you’d have to have a term to have confidence to invest in maybe a 25-year asset.
That’s the sort of kōrero that I would expect in any review of the licence arrangement. But in knowing also that this land has been effectively managed by others over the last 160 years, through the manaakitanga and expression of kotahitanga, the owners of the land have said that, no, they are comfortable with this land continuing to be managed seamlessly by Te Papa Atawhai, or the Department of Conservation, as part of the coastal track.—and, actually, other areas of land throughout the whenua that constitutes the Spain Award Area—and they should be acknowledged for that.
You know, if you’ve had a piece of private land that you haven’t managed, but you’ve owned it for 160 years and someone else has been looking after it, and there’s an intention to come together and actually continue an arrangement for another 25 years, that should be acknowledged and supported. We’re very grateful that the owners of this land have continued to support that.
Things like repairs and maintenance and capital expenditure need payments that are required for the infrastructure, and even the route on which that track takes place—because, sometimes, as the hard-working member from Nelson will know, the track does get pounded by the weather and it gets broken, and some of that will be on the land that is owned by the beneficial owners and sometimes you have to reroute things. So all of those types of attributes come into play.
In relation to the pātai around Treaty obligations, they will persist for land that is owned by the Crown—those Treaty obligations persist. For the land that is owned by the beneficial owners on trust in the Te Here ā Nuku Trust, there has been a range of communications between the iwi, the owners—Te Here ā Nuku trustees—and the Crown to resolve any outstanding overlaps around, let’s say, overlay classifications or statutory acknowledgments in a range of other Treaty of Waitangi settlement commitments that are already articulated in legislation involving those iwi. Those discussions have been ongoing, and you won’t be surprised that a lot of the trustees and managers of those iwi organisations are the same people as the owners of the land involved in Te Here ā Nuku Trust. Those conversations have been had and will continue to be had, and, of course, like with any whānau, hapū iwi, and, actually, communities, you don’t always get agreement all of the time—unlike this place.
Co-governance—I’ll just respond before the Hon Willie Jackson stands. Neither the owners nor the Crown desired this, and my understanding is that it didn’t occupy an extensive period of time in some of the select committee discussions, but it wasn’t aspired to or desired, and the arrangement à la Taranaki Maunga was not front of mind.
Thank you, Mr Chair. Good to hear the Minister’s kōrero with regards to the question around co-governance, which was what I was going to get into. It’s fascinating that one of the former senior Ministers of the National Party—Nick Smith—is now a great advocate for co-governance; it’s one of his major priorities in life; co-governance is the way forward in this particular kaupapa.
Very pleased to hear the Minister talk about that, and I was wondering, in terms of that question, which has come up: has the Government got a strategy to navigate that, given that this former senior Minister is presenting as running around with a petition? And has the Government formulated a response to him, given that the insinuation is obviously that Māori can’t be trusted in terms of the management of this project? That’s the basis of it. I’ve listened to what Nick Smith has said on national radio—the nonsense that’s being perpetrated. He’s almost talking like they’ve lost something—they’re losing something huge. So I’m interested in the Minister’s strategy around that.
Does it affect the overall philosophy or strategy in terms of co-governance with this Government? I believe that the Government is embracing, is still a supporter of co-governance in different areas, but is this particular kaupapa affecting things going forward? Are they attaching any priority to meeting with Nick Smith, who is rabid in terms of his petition, where he’s got only a few people signed up?
In terms of those Treaty implications, and in terms of what’s happening internally within the grouping down there, I’m interested in how the Minister may well be navigating that, given that there is some opposition, sadly, from some of our most senior people down there. I’m interested to hear if the Minister has been able to mediate or facilitate anything in terms of that process. I think that some of the opposition, which is not major, has come from very significant individuals down there. I’d be interested to hear if the Minister has been able to mediate or navigate anything in that area. Thank you, Mr Chair.
Thank you very much, Mr Chairman. It’s an honour to take this first opportunity to speak on this piece of legislation. I know in the committee stages, committee of the whole House, I guess, I’ll take the opportunity to speak more wide-ranging and ask a few more wide-ranging questions of the Minister.
Can I acknowledge Rore Stafford and the trust members for their tenacity. I did meet with representatives while in Government where there was a request to resolve this quickly. Can I say it did have to go through an agonising and laborious legal process to reach this point, but can I congratulate the Government for moving to resolve this longstanding issue. I want to acknowledge Rore and what he has done in the transfer of this land rightfully back to its rightful owners to Te Here-ā-Nuku Trust. And can I say that moving forward, to the questions and the issues raised by my colleague Willie Jackson around co-governance, it is somewhat ironic, if not hypocritical, for those who have opposed co-governance when the land is in public ownership, to then have the land transferred to Māori ownership and then demand co-governance. I have to say I was horrified at Nick Smith’s—the Hon Nick Smith he’s called in title, but it wasn’t an honourable thing to launch a petition against a longstanding claim, rightful legal claim on this land.
In terms of Abel Tasman National Park, and I speak as former MP for West Coast-Tasman—proud of representing this region and understanding the significance of Abel Tasman National Park to Te Waikoropupū Springs; these are spectacular areas of significance to all people in the regions. They had been rightfully transferred back to the traditional owners of this land—legal owners—and we have to respect the governance proposals that are laid out in this piece of legislation. And for Nick Smith to stir up fear that there would be closure, there would be lack of access, was absolutely outrageous.
The goodwill that the Government has created through the settlement of this claim and this piece of legislation is to be applauded. I think we in Opposition are supporting this on the basis that we move forward into a new era where there is respectful recognition of ownership, just as there are blocks of private ownership within Abel Tasman National Park, owned by lots of wealthy people—Pākehā people, most of them—working in the national park, not necessarily blocking access, but working with the Department of Conservation (DOC). I’m sure that the trust, too, will show the same respect for the wider enjoyment of Abel Tasman National Park and the expectations of access to it.
We have to remember this is private ownership—land now transferred back into private ownership. And my questions flow on to other areas of legislation that this Government is passing: reform of the Resource Management Act (RMA), enhancement of property rights—interesting—threats to water conservation orders, perhaps the threat that they should be removed. Well, I hope that the Government in its passage and progress of legislation through the RMA maintains and upholds the water conservation orders, the one that will be so important to protect the rights allocated here to Te Waikoropupū Springs, and its majesty, its pristine nature, and the need for protection through that water conservation order. If the Government moves to undermine those water conservation orders in Golden Bay or anywhere else in the country—Mr Chairman?
CHAIRPERSON (Greg O'Connor): Damien O’Connor.
Hon DAMIEN O'CONNOR: Thank you, Mr Chairman and thank you for the call. I raise these issues because of their importance and because this is a significant step in history, really, where we’ve worked through a process in our legal system to rightfully acknowledge, as I say, claims of the past and I guess the respect for future management regimes.
Can I come to Kaiteriteri as well. There are significant commercial players, as Nick Smith pointed out, utilising Abel Tasman National Park and stirred up fears of potential problems into the future. I know DOC haven’t always been the easiest landlord or manager, and there will be, I’m sure, ongoing tensions between rightful managers and owners and operators. But the ones who I respect have welcomed this piece of legislation, this settlement. Those people who have promoted, utilised, enhanced, and respected Abel Tasman National Park are saying they are very happy to work with the new owners of some of these private areas within the park in and around Kaiteriteri, and I welcome that. I think that represents the views of the vast majority of people who live in and around Tasman, and in and around Nelson. They have watched, they have respected, and they’ve, I guess, agonised with the trustees and the legal process.
Can I just say, as part of the previous Labour Government, we were looking for legal guidance on this, given the precedence that this may set. I think, now, that’s for future Governments to work through where there may be other legal claims, but this was unique, the court decided that, and they have handed over to Te Here-ā-Nuku Trust the rightful ownership of these, as I say, amazing areas in the Tasman area.
Can I just ask if the Minister—because I know that’s what committee stages are about—if he has had a discussion with his colleague Nick Smith, who was a staunch National Party advocate that had asked him to actually help move this process forward, not hinder or disrupt it. I think that’s really important.
Can I ask the Minister also, in terms of assurances for people in and around Kaiteriteri, there are some major challenges with that area. The trust set up, or the board set up as it has been, has not been ideal. People with good intent have gone on to that board, the Kaiteriteri Recreation Reserve Board, to try and help make progress. I just hope that the Department of Conservation works alongside the trust and the operators to develop that spectacular area in a way that is truly sustainable but does realistically deal with the pressures of the future.
Anyway, I’d just like to, as I say, give the Minister an opportunity to work through a couple of those issues on the conservation water order, and to ensure that the cooperation within Abel Tasman National Park can be facilitated by both the departments, the new owners, and the operators.
Tēnā koe, Mr Chair, and thank you for those insights from members of the committee. Look, Nick Smith is a fighter for conservation and for Nelson, and I acknowledge his extraordinary commitment to conservation over many, many decades. I have not received any petitions in the House from the Petitions Committee, from what I know, and I understand that there is a petition being signed by members of the public, but I haven’t seen any petition arrive at the House yet.
But just to acknowledge the Hon Nick Smith, he actually was part of a Government that endorsed Te Awa Tupua, Te Ture Whaimana, and Te Urewera and the resolution arrangements that resulted in settlement legislation for those longstanding Treaty of Waitangi claims around resources. But the legislation is not about Nick; it’s about people like Rore Stafford, Kahu Kutia and Eva Rickard, and a range of other governors of Wakatū, and, importantly, the descendants of the original owners of the whenua in question.
Focusing on how we can best scaffold and support the health and wellbeing of all the land into Te Tai-o-Aorere, Tasman Bay, and Mohua, Golden Bay, and places as spectacular as Te Waikoropupū and Mārahau, out there at Te Tokanganui—and other iconic places of the areas that the Government and I are committed to.
There were some questions around co-governance or co-management and we see co-management has worked in practice and in various initiatives that multiple Governments have been a part of, whether or not it’s the catchment collectives or, indeed, the most recent announcements of the marine reserves off the coast of Ōtākou in South Canterbury, Te Au Roa o Te Rakihouia where the Department of Conservation and Ngāi Te Ruahikihiki, Kāti Huirapa Rūnaka, and Ngāi Tahu are now looking after some of those marine reserves.
There has been opposition in different corners of our communities around the resolution agreements and also the legislation which is currently proposed. But importantly, there’s also been agreement on the fundamental platforms for moving forward by the trustees that have been, effectively, appointed by the original descendants of this land. And I’m not a mediator or facilitator, but I’m someone who acknowledges that some of the opposition in the raruraru that might exist with some quarters needs to be resolved at a rangatiratanga sphere, not for the Kāwanatanga and Minister Potaka to jump in all amongst that; when I’ve full confidence, belief, and faith that the descendants of the whenua can resolve those disputes amongst themselves.
I talk with many people and I’ve heard Nick’s concerns—he’s expressed them in a wide variety of media—but, again, that’s for Nick. Our job and our responsibility today, in my view, is actually to carry this proposed legislation forward and get to the third reading, hopefully, in a couple of weeks, rather than belabour the points around individual concerns that may be channelled through a different pathway—petitions or the media or other communication platforms.
In respect to Kaiteriteri Reserve—what a place—I encourage everyone in this Chamber, all 16 of us who are here today, to visit and to invest not only in the area but in a couple of ice creams down there, because, actually, it’s a place you want to spend part of your life in. It is phenomenal how beautiful the Kaiteriteri area and, actually, the entire area of Nelson—just to acknowledge the member, the Hon Rachel Boyack, for her raging support and representation of that superb part of our country. The reserve has its own board and I’m sure the former MP from the West Coast, Mr Damien O’Connor, will know that that is one of the very few reserves that actually generates a surplus across the country. There’s not many reserves in the Department of Conservation estate that generate a service, but that is one of them, and that mahi will continue.
Thank you, Mr Chair. Can I begin just by thanking the Minister for his fulsome and very thoughtful responses. I know they’re really appreciated on this side of the House. I also just wanted to acknowledge the officials from Crown Law and Te Puni Kōkiri, who we have with us today, not only for being present today but for their work towards the settlement, which I know has been significant. I do have some questions for the Minister, which I will go through—some of them are quite broad and some of them are very specific, just in terms of the legislation. Again, just thanking the Minister for his thoughtful responses.
One question that came up during the select committee process was the question of precedent and whether the settlement, as well as the judgments themselves, create precedent going forward and whether the Minister is aware of any other like-circumstances that could fall into scope of the settlement that we’ve seen here. I think this is such a unique area of law in many ways, partially because, in terms of trust law relating to land, we have legislation through the property Acts now, through the former contracts Acts, and then we have English legislation as well that required land held in trust, or trust created to manage land, to be in writing. And in this instance, we don’t have a trustee as such, but we have a significant amount of evidence and behaviour, and in writing that has created, I think, what the Supreme Court called a “bespoke duty”. And so I’m just wanting to hear from the Minister his thoughts on that.
Another issue that came up was the possibility of new beneficiaries being added to the current beneficiaries of the trust and the provisions that allow for that to occur entirely validly. We had a brief discussion about whāngai relationships and those being acknowledged through the addition of new beneficiaries, and the Minister’s thoughts on whether the provisions are sufficient to enable new beneficiaries to be added as beneficiaries to the trust.
A third issue was in relation to encroachment on the land concerned by private dwelling houses and how, either through settlement or through legislation, that’s been addressed in a fair way to those third parties. And the Minister’s view on whether the provisions relating to third-party rights in the bill are as sufficient—what he has heard from existing third parties as to their satisfaction with the current provisions.
Specifically, in terms of clause 7, which is the interpretation clause, there’s inclusion of the term “corporate trustee” and the allowance of corporate trustees as well as individual trustees to hold a place within the architecture that protects the land. I’m just wanting the Minister for Māori Crown Relations: Te Arawhiti to comment. My assumption is that the duties are the same, and that mirrors what we often see occurring in relation to Treaty settlements, and the Minister’s satisfaction with that. There is clause 7, which talks about the impact of delayed release land, and I’m just wanting the Minister to speak again to the reasons for delayed disclosure and the way in which that land will be captured under the current legislation.
Finally, in terms of future third-party rights, the phrase is that “future third-party rights means any rights, interests, and other lawfully created matters”, and I wonder if the Minister could speak to what would constitute other lawfully created matters in the context of that particular definition. I thank the Minister again for his patience and his detailed responses to that.
Thank you, Mr Chair. It sort of gives me pause to think about that famous Jarndyce v Jarndyce case. You might recall that, Mr Chair, in Charles Dickens’ Bleak House. Just ongoing, but we’re getting to resolution.
In relation to the precedent potential, in terms of the judgment, of course, all judgments have some precedent value, but I don’t think that this will be appealed because we’ve got to a resolution of the issues. Actually, the resolution agreement was endorsed by the High Court once it was received, so, in fact, we’re just carrying out that endorsement.
In terms of similar circumstances, we are not aware of anything of the distinct and bespoke unique nature of the Nelson Tenths circumstances. In relation to the Tenths arrangements in other locations, for the most part, those have been resolved by way of other settlement arrangements, which were conducted effectively through the Treaty of Waitangi settlement process. Again, we’re not aware of any commensurate matters to the Nelson Tenths arrangements.
It is important to acknowledge the third-party rights that might emerge in the future. There were a couple of observations that our earnest and adroit team just made to me. There may be a delayed release of lands from the beneficial owners or the owners of whenua in question back to the Crown, and there may also be lands that emerge that we don’t know about right now that need to be vested in the owners, because as you would imagine, across some parts of our country, there are no survey titles. That’s been one of the big challenging administrative matters that has had to be progressed and resolved over the course of the last few months.
The encroachment issue was raised and it’s important to make comment on that. There are private dwellings that exist within the boundaries of national parks, like the Abel Tasman National Park, and one of the important management and administrative matters is to ensure that there are appropriate surveys of titles to ensure that any encroachments are identified and resolved. The team are dealing with those and other related matters which may have popped up from time to time. I know Fish & Game New Zealand has been one of those, but that’s been dealt with in a separate manner and down a separate pathway.
With respect to beneficiaries, there was a question asked about whether or not there will be additions. Well, sometimes you actually don’t know who all the descendants of the original owners are because people may not have connected with their own tīpuna, and the definition that’s provided within the proposed legislation enables a class of beneficiaries, and there are pathways for those who may not understand or be aware of their whakapapa connection to the original owners to identify themselves and are included in the class. That type of situation will probably emerge, as will, I’m sure, more babies who will be descendants of the original owners. I will not be having more babies myself, but that has been addressed, that issue. There used to be an ad on TV about that stuff but I won’t go there.
CHAIRPERSON (Greg O'Connor): Presumably not by the ministerial schedule.
Hon TAMA POTAKA: No, no. It’s not in the amendments to the Act either. Finally, I just wanted to acknowledge not only the team behind us who have been losing sleep over this matter for the last 10 years but also their cohorts, and importantly, people like Uncle Rore and Auntie Lynne Stafford, Paul Morgan, of course, and James Palmer and others from the Wakatū massive; Johnny McGregor and Jamie Tuuta, Hemi Sundgren, George Stafford, and, of course, Karensa Johnston who have been absolutely phenomenal in their commitment to an enduring and durable resolution of matters current.
Thank you, Mr Chair. Can I also just reiterate the comments made by my colleague Vanushi Walters that the engagement and thoughtful responses from the Minister for Māori Crown Relations: Te Arawhiti is really appreciated. We really appreciate that, and also, like others, we want to acknowledge the officials that have done a remarkable job on this resolution and the legislation over what is a short period of time getting this legislation through the House. I know that that presents its challenges, so I really do want to acknowledge just how hard they have worked through that time.
I have a specific question. I’m going to jump to Part 4, clauses 93 and 94, and this is around quite a specific issue that has cropped up in questions from the community about gifted land. The background to this is where members of the community have rallied together to gift some land to the Department of Conservation. Usually, it can potentially be given to another Crown organisation or to a council, but my specific question is around the ones given to the Department of Conservation, and then what that will mean going forward. Because for those people, sometimes they have fundraised, there have been bequests from people who’ve passed away—a range of different ways that land can be gifted. If I speak specifically about clause 93(1)(f), which is part of Snowden’s Bush Scenic Reserve, where the land was sold by the Anglican Church and it was fundraised by the community and then gifted to Department of Conservation.
In clause 94, it says that the “Trustees’ obligations in respect of gifted land. If the trustees exercise the power under section 79 to revoke, in part or in whole, the reserve status of any gifted land, the trustees must have regard to the original purpose of the gift, to the extent that the purpose of the gift can be ascertained.”
Can I get an understanding from the Minister about what that will mean in practice? If, for example, the people who have made the gifting were very clear that the land should be for public use, for public enjoyment and recreation, will that have to be retained by the trust if they were to potentially sell the land or change the purpose of the land? How would that work in practice? What would happen if the purpose of the gift can’t actually be ascertained as is noted in clause 94? Perhaps, if the gifting occurred some time ago and there isn’t any written documentation as to why that gift was made and it’s difficult to understand what the purpose of that, how would that operate in practice?
I do want to acknowledge that I’m not asking these questions to try to suggest that this isn’t a fair approach in the legislation; I’m just interested in the Minister’s comments on how this will work in practice. I particularly want to acknowledge the trustees; I have discussed some of these places with the trustees directly, who have, in my view, been operating in very good faith, very keen to continue the use of the land as per its current purpose, and have been working closely with communities to have good-faith discussions around that.
This is not me raising a criticism; I’m just interested in the Minister, I guess, reassuring the community that there isn’t an agenda here for land to have been gifted to the Crown and then the legal ownership transferred to the trust, and then somehow that’s going to be sold and developed and used for purposes that mismatch with what the community intended. It has been an important matter raised in the community, and I’m just keen for the Minister to provide some reassurance to the community that there will be good-faith obligations going forward in respect to these parcels of land.
I join with colleagues in complimenting the Minister this morning; I think we’ve had some very good and honest responses, and I’m really pleased to see the Government’s strategy and response with regards to this kaupapa.
Just further to some of the questions, though: in terms of the quantum, we’re talking about the biggest settlement in the history of this country, basically. In some ways, it’s gone under the radar, which is maybe good. I’m interested in how, going forward, the Minister is going to manage that—particularly the communications on this, given that the original settlements were $170 million in terms of Tainui and Ngāi Tahu. This particular settlement of $420 million has in many ways gone under the radar.
Then, of course, there’s lots of offers of help and support from people like Dr Nick Smith in terms of helping “the Māoris” in terms of their investment strategy going forward. I know the Minister has given some answers, and I respect his answers with regard to Dr Nick Smith, but it is a worry for, I think, everyone that a senior former Minister has taken this condescending and patronising approach with our people down there. Damien O’Connor, I think, summed it up very well—the amazing sort of turnaround in terms of Māori receiving their justice through a private means, and all of a sudden, it’s a bit of an outrage. I’m still perplexed and what to know what the Government strategy will be over him because, with his petition coming, I am worrying about the type of controversy that might occur.
In terms of the co-governance, I heard the Minister’s answer with regard to that, and I felt comfortable with that response, but I’m wondering, given that he’s got coalition partners who are anti co-governance, how he is managing that at the moment. You’ve got two partners who have basically come out against the whole co-governance strategy and process going forward—and in fact want the whole process abandoned—but the Minister has confirmed this morning that there is no resiling from that for National. How are they managing that in terms of a strategy going forward? Although, we accept that in this particular case, this is not a co-governance model, and nor should it be.
I’m interested in that strategy, but also in terms of the strategy with regards to the trustees. You have trustees from around not just in the South Island but all the way up the North Island. How are we going to process the obligations to Māori and the benefits—what is the process in place with regards to that—particularly given the overlapping iwi claims? Not just overlapping iwi claim, but urban Māori claims; you’ve got Ngāti Toa and then you’ve got the different regions and the different groupings. With such a huge settlement, how is the Minister envisaging that going forward? What strategies are in place? Thank you.
Mr Chair, thank you again for providing the opportunity to respond to these well-meaning and motivated questions.
With respect to the private land which has been gifted, I think it’s widely acknowledged that when the land in question was gifted, it had the imprint of a trust within that gift—albeit those people, and potentially the Crown at that time, were not across or aware of that imprint and that trust associating with the land in question. It has always been owned, as declared by the court, by the beneficial owners. When the land was gifted through to the Crown, it carried with it that imprint of trust. The responsibility of Government and this Parliament is actually to ensure that the purpose of the gift, when made for specific, bespoke areas of land, is given some consideration. That is the responsibility that we have, rather than forcing anything in addition to the provision that is now outlined and articulated in the legislation: to ensure that the purpose of the gift is given regard.
It’s a little bit ironic, actually, because often it’s the Crown having regard to matters, and now of course it’s the owners of this land having regard to matters. But that is the responsibility of this House and the responsibility that we have carried through from the resolution arrangements as the Crown to ensure that there is a process. That process is well set out and articulated in clause 94, as the erudite member has alluded to.
There were some other comments made in relation, again, to the Hon Nick Smith, and I think we should just acknowledge the Hon Nick Smith for his mahi but move back to the key purpose of the bill and this legislation, and of course carrying out the resolution arrangements. My understanding is that there has been and there will continue to be a conservative approach to the governance and the management of the assets, pūtea, land, and any other assets that are now vested in the trustees to be held in trust for the beneficial owners.
Finally, I just wanted to step back and acknowledge the Hon Judith Collins and the Hon Chris Bishop for their leadership on these matters as successive Attorneys-General and for carrying through a sense of collegiality and professionalism in this House. It’s out of respect that all of us have come together, unified in purpose and unified in intention, to ensure that this longstanding—indeed, maybe the longest property debate and dispute in this country—is resolved. With that, I will take my seat.
CHAIRPERSON (Greg O'Connor): The question is that the Minister’s tabled amendments be agreed to.
Amendments agreed to.
Preamble, Parts 1 to 6, and clauses 1 and 2 as amended agreed to.
Bill to be reported with amendment.
Climate Change Response (Tort Liability) Amendment Bill
Committee of the whole House
Part 1 No tort liability for emissions-related climate change effects, and the Schedule
CHAIRPERSON (Greg O'Connor): Members, we come now to the Climate Change Response (Tort Liability) Amendment Bill. We start with Part 1; this is the debate on clauses 3 to 5—“No tort liability for emissions-related climate change effects”—and the Schedule. The question is that Part 1 stand part.