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Māori Purposes Bill

Second Reading

Tuesday 5 December 2006 Hansard source (external site)

HoromiaHon PAREKURA HOROMIA (Minister of Māori Affairs) Link to this

I move, That the Māori Purposes Bill be now read a second time. The Māori Purposes Bill is an omnibus bill bringing together amendments to several Acts affecting Māori. The bill includes amendments to Te Ture Whenua Maori Act 1993, the Treaty of Waitangi Act 1975, the Maori Fisheries Act 2004, and the Maori Commercial Aquaculture Claims Settlement Act 2004.

There were 20 submissions on the Māori Purposes Bill, and I want to thank all those who put their time and thought into commenting on the bill’s provisions. I would also like to thank the Māori Affairs Committee for its careful scrutiny of the bill. The committee has made some useful suggestions that have improved the bill and clarified some of its provisions.

Part 1 includes a range of amendments to Te Ture Whenua Maori Act 1993. Significant settlements have been achieved in recent years between the Crown and Māori. These have contributed to an asset base that provides real opportunities for sustainable Māori economic development, and for the New Zealand economy as a whole. One of the ways the Government can support this potential is to provide an effective and responsive legal framework and infrastructure. Recent legislation, such as the Maori Fisheries Act 2004, the Maori Commercial Aquaculture Claims Settlement Act 2004, and the Foreshore and Seabed Act 2004, has extended the Māori Land Court’s jurisdiction. Part 1 ensures that the Māori Land Court will be able to respond effectively to this new environment.

The bill increases the statutory cap on the number of permanent judges who can be appointed to the court from eight to 14. This will enable more judges to be appointed, if and when they are needed. The bill gives the court more flexibility to balance the workloads of the Chief Judge and the Deputy Chief Judge. This will help the court to deal efficiently with the range of matters referred to it. The Chief Judge will have the express ability to delegate some or all of these functions to the Deputy Chief Judge. The Deputy Chief Judge is also given the ability to exercise the special powers of correction set out in sections 44 to 49 of Te Ture Whenua Maori Act 1993, subject to the direction of the Chief Judge.

Part 1 also validates certain judicial decisions. The Chief Judge’s special powers of correction have for many years been delegated to the Deputy Chief Judge. Concerns have arisen that this may not have been valid under the Act’s current provisions. In addition, in November 2000 a former acting judge sat beyond the term of his temporary warrant. The bill validates those judicial actions, to provide certainty and minimise disruption to the parties affected. Those individuals and whānau will have acted on the decisions in good faith. In all cases, the actions concerned were taken by highly experienced judges.

The bill also clarifies the powers of the Māori Land Court to hear and determine disputes referred under the Maori Fisheries Act 2004 and the Maori Commercial Aquaculture Claims Settlement Act 2004. The effect of the changes in Part 1 will be to help to ensure that Māori asset owners continue to have an effective forum and processes for dispute resolution.

Part 2 amends the Treaty of Waitangi Act 1975. The main change is to introduce the statutory closing date of 1 September 2008 for submitting new historical claims to the Waitangi Tribunal. Many of the 20 submissions made to the Māori Affairs Committee were about Part 2. This reflects the importance of the Treaty of Waitangi to Māori and all New Zealanders. One of the Labour Party’s election pledges was to introduce a closing date of 1 September 2008 for all historical Treaty claims. This bill delivers on that undertaking.

Since the announcement of the policy in 2005 there has been a great deal of discussion about what a closing date will mean. The date will help to provide greater certainty about the number of historical claims that have yet to be inquired into by the tribunal. I look forward to greater emphasis on the settlement of claims and on the future that can be built on these settlements. We have seen many examples already of iwi using their settlement assets to invest in their children. Iwi are also rebuilding their governance structures and taking part in a whole range of commercial ventures.

Claimants will not have to complete all their research or finalise all aspects of their claim by 1 September 2008. As long as a claim is submitted on or before that date, it can be amended later. The Government intends to provide information to make Māori aware of the closing date for the submission of historical claims.

Contemporary claims will still be able to be submitted to the Waitangi Tribunal after 1 September 2008. Contemporary claims relate to events occurring after 21 September 1992. This date of 21 September 1992 is when the Cabinet of the day agreed to principles for settling historical Treaty claims. It has been used to define the difference between historical and contemporary claims in all Treaty settlements of the past 14 years.

A closing date for the submission of historical claims will provide greater clarity about the historical claims yet to be addressed. This bill will help to move us forward, so that Māori and all of New Zealand can enjoy the benefits of settlement.

Part 3 makes a number of technical amendments to the Maori Fisheries Act 2004. These address some oversights in the original legislation in its interaction with the Fisheries Act 1996. The bill amends the list of quota shares held by Te Ohu Kai Moana Trustee Ltd to reflect changes that have already occurred as a result of the exercise of preferential allocation rights under section 23 of the Fisheries Act 1996. Section 23 triggers the redemption of preferential allocation rights when a total allowable catch limit is raised for certain stocks. The bill clarifies the proper course of action for Te Ohu Kai Moana Trustee Ltd to follow in allocating quota shares affected by these redemptions.

Part 3 also corrects an oversight in drafting that omitted to provide a complete process for allocation of harbour quota in accordance with the agreed allocation model. As a result of consideration by the Māori Affairs Committee, it has recommended that three additional matters be dealt with in the bill. Further amendments to the Maori Fisheries Act 2004 have been added to the bill to correct an error in the classification of red crab stocks, and to allow for the effects of changes to quota management areas on the quota shares held by Te Ohu Kai Moana Trustee Ltd. A provision has also been added to validate the actions of Te Ohu Kai Moana Trustee Ltd in allocating quota based on its actual holdings, rather than those holdings currently listed in schedule 1 to the Act, during the period until this bill is passed into law. These amendments will assist in the transfer of fisheries settlement assets to iwi in a timely manner. Consistent with the original intentions of the legislation, they will reduce the risk of costly disputes.

Part 4 makes a technical amendment to the Maori Commercial Aquaculture Claims Settlement Act 2004. It corrects an error in the current wording of the definition of pre-commencement space in the Act in a way that is consistent with the understanding of the stakeholders at the time. This does not affect the Government’s commitment to provide the equivalent of 20 percent of aquaculture space that was promised to iwi under the fisheries deed of settlement.

In conclusion, the Māori Purposes Bill is practical legislation that makes amendments to legislation affecting Māori and their assets. The amendments in the bill will help the Māori Land Court to function efficiently, promote greater certainty and a forward focus in the settlement process, and help to ensure that the distribution of fisheries and aquaculture settlement assets to iwi is able to proceed smoothly. Māori are fast becoming increasingly important contributors to the New Zealand economy. With Māori managing and leading the growth of their assets and people, the benefits will be felt not only by Māori but by New Zealand as a whole.

HenareHon TAU HENARE (National) Link to this

Let us cut to the chase. Labour members love to talk about how much mana the Treaty of Waitangi has. Let us take just that part of the bill first. If the Treaty had the mana the Minister speaks of, then the bill would be just about the Treaty. It would stand alone as an amendment to the Treaty of Waitangi Act 1975 and place the Treaty in its proper place. That is the first point. The second point is that National actually agrees with the Minister and Labour about a close-off date. It is not to say to Māoridom that they cannot put in any more claims; it means basically that they have until 1 September 2008 to get with it and make claims. It does not mean that a claim cannot be put in; a claim can be put in that basically says on one piece of paper: “We, on behalf of such and such a hapū, such and such an iwi, submit a claim over the following pieces of land.”, or whatever.

During the claim’s lifetime and during the research, the claim can be amended, as long as it has been submitted by 1 September 2008. So I would not say that this bill is throwing a spanner in the works of the whole claims process. I actually think that, firstly, it will speed up the process; secondly, it will make the process more interesting; and thirdly, hopefully, by getting claims in on time, by 1 September, they will also be worked out earlier. There will be a concertina of the submission of a claim, the research of the claim, and finally, if one is lucky, getting whoever is in Government to come to the party in terms of some sort of arrangement, such as we have seen in the past.

The National Party does not have a problem with the amendments to the Maori Fisheries Act. In fact, they are a seamless way of tidying up a few problems that have arisen. I am glad that the Minister said that the provisions would not hurt the 20 percent of aquaculture space allocated to Māori some years ago.

We come now to what I think is an issue of great concern. There are a couple of issues. One—and here we go again—relates to retrospective validation. We have just come out of a huge argument about the retrospective validation of electoral spending. Without going into the details of that, we are being asked to approve or support—

YatesDianne Yates Link to this

Do you know what you’re talking about?

HenareHon TAU HENARE Link to this

Crikey, this is the former member for “Hamilton Somewhere”—east, west, north, or south. She does not even know where she represented. She would not know what time of day it was. She would not know the first thing about the Māori Purposes Bill.

Let me tell members what Labour wants to do. There was a judge, and one would have thought the judge had a licence to operate. But, lo and behold, he never had a licence to operate. In fact, he did not have a licence to operate so he could not have been a judge. All those people came into the courtroom thinking he was a judge, but he was not a judge. Do members know why? Because he did not have a warrant. He went through the process of hearing the defendants and hearing the other people, and actually made a determination. He made determinations not just in one case but in over 80 cases. But he was not a judge—he did not have a warrant to be a judge. I put it to the House that if that had happened in a murder trial or a criminal trial, there would have been a retrial at least—at the bare minimum.

HenareHon TAU HENARE Link to this

Fairbrother says no. I know what he is going to say—that Labour would have validated that, as well. Why did Labour not sort itself out prior to hearing those poor people? Here is the rub: not one of those people who went before the judge has even been told that they are entitled to question the validity—

HenareHon TAU HENARE Link to this

The Minister says that is rubbish. This is the Minister who did not even know how to move a bill to the Māori Affairs Committee, and we are expected to believe that he knows what he is doing now?

I ask you, Madam Speaker. And we are expected to believe that—

HoromiaHon Parekura Horomia Link to this

It happened in your time, Tau.

HenareHon TAU HENARE Link to this

No, it did not. I never dropped the ball when I was the Minister. In fact, lots of stuff that I did when I was the Minister is still going today. But I digress. Here is the last one. The Minister said in his speech that if the Māori Land Court needs more judges, it can have them by virtue of a change to the Te Ture Whenua Maori Act. He said that the maximum amount of judges allowed at the moment will move up. He said that this will happen if and when the court needs them. What the hell is the point of putting the Māori Affairs Committee through a process of looking at changes to a bill, only to have the Minister think: “Well, that’s if we need them.”? The Minister is saying: “We don’t really know whether we will need them, but let’s be on the safe side, just in case we get a whole lot of foreshore and seabed claims.”

That is what the bill is all about. It has nothing to do with bolstering the intellectual capacity of the Māori Land Court; this has everything to do with the Minister going: “Oh, crikey, we passed the foreshore and seabed legislation and now here comes the rush of people from NgātiPorou”—oh yes, that great tribe from the East Cape—“from Ngāpuhi, from NgāiTahu—from all over the country.”

ParaonePita Paraone Link to this

Ngāti Hine!

HenareHon TAU HENARE Link to this

People will come from Ngāti Hine, and its foreshore, as well. That is what this legislation is all about. It is not to bolster the intellectual capacity of the Māori Land Court but to bolster the number of judges if, and when, we need them.

FairbrotherRussell Fairbrother Link to this

You concede it’s good legislation, then, don’t you? You concede that people have their rights and are exercising them?

HenareHon TAU HENARE Link to this

Oh no, I am not the one who sold out. The reason why it is all boisterous in the Chamber now is that I am not the one who sold out his people. I am not the one who brought in the foreshore and seabed legislation. I am not the one who said to Māori: “No, you can’t go to court like everybody else.” I am not the one who said: “You are a second-class citizen.” I am not the one who said: “You don’t own anything and you can’t have any rights to go to court to find out whether you own it.” But hey, the Minister of Māori Affairs is the one who sold out his people. He is the one.

Actually, the Labour Party members are responsible for the Māori Party coming to Parliament. It is pretty clear that Dianne Yates, Parekura Horomia, and their colleagues are all responsible for the birth of the Māori Party. I thank the Labour Party members very much, because we have in the Māori Party some good MPs who do the hard yards, who get around, who speak from their hearts, and who will never sell their people out.

Nō reira, we will support some of the bill. In the Committee stage we will move amendments to the two parts I have talked about—that is, if Dianne Yates can keep her eyes open. We will support other amendments to the bill in terms of the Māori Land Court that, hopefully, my friend, cousin, and colleague Pita Paraone will table.

AndertonHon JIM ANDERTON (Leader—Progressive) Link to this

When the Maori Fisheries Act was passed in 2004 it was a major piece of legislation and a historic moment for this House. It was legislation that was roundly debated both here and throughout New Zealand. Part 3 of the Māori Purposes Bill 2006 is not of the same scale. It proposes technical amendments that are needed to fix three oversights or drafting errors. Fisheries legislation—I say from my 1 year’s experience—is extraordinarily complex, and this legislation is no exception. Tonight we have to repair the status of a species of red crab, we have to fix an anomaly that arose because preferential rights were allocated 20 years ago, we have to correct the omission of one step in the administrative procedures, and we have to validate decisions that were made before anyone knew that the anomalies existed. The amendments are not a new allocation model or an interference with the model; they give effect to the allocation model agreed to by iwi.

The first amendment fixes a problem that meant Te Ohu Kai Moana Trustee Ltd could not strictly comply with the legislation’s provisions about the way fisheries are allocated. This story goes back to 1986, when the quota management system was first introduced. At that time some quota owners had their rights reduced without compensation, because an effort was being made to reduce catches to sustainable levels. Although they lost their right to take some of the catch, they kept the right to get preferential quota if the total allowable catch was ever increased again. Section 23 of the Fisheries Act implements this preferential right. Then the Maori Fisheries Act was passed in 2004, which tied all decisions about allocation of fisheries to a number of quota shares held by Te Ohu Kai Moana Trustee Ltd at the time the Act was passed. These shares are listed in schedule 1 of the Act.

The problem is that the number of shares can change through preferential quota dating back to 1986, as I have described. This can effect the number of shares held by Te Ohu Kai Moana Trustee Ltd for distribution to iwi. When that happens, schedule 1 of the Maori Fisheries Act 2004 will no longer reflect Te Ohu Kai Moana Trustee Ltd’s true holdings. Te Ohu Kai Moana Trustee Ltd is unable to comply strictly with the allocation provisions of the legislation. The amendments contained in clause 22 of the bill will rectify that situation. The amendments in clause 22 are not retrospective, so clause 23(1) of the bill deals with seven fish stocks that were affected by the preferential allocation rights in October 2004, before this issue was recognised.

Section 25 of the Fisheries Act 1996 allows the Minister of Fisheries to recommend changes to quota management areas if this will improve fisheries management. This also would change the shareholdings of quota owners. Both the name of stocks and the number of quota shares held can be changed. If that happened, Te Ohu Kai Moana Trustee Ltd would be left with no guidance from the legislation on how to allocate the new quota shares. It would also have a technical obligation to allocate stock that no longer exists. It is a bit like how the Opposition would like to reallocate the technical parts of the fiscal surplus that do not exist.

The need for this amendment was raised in the select committee by Te Ohu Kai Moana Trustee Ltd and it has been added to the bill in clause 22A. The amendment provides instruction for Te Ohu Kai Moana Trustee Ltd to deal with these circumstances in a way that fully reflects the intention of the allocation model for fisheries settlements assets agreed among iwi. The Ministry of Fisheries is in agreement that this amendment is necessary and it has the full support of the Government. I congratulate Te Ohu Kai Moana Trustee Ltd and the committee members on achieving this addition to the bill.

The second issue in the Maori Fisheries Act 2004 addressed by this bill is an error in the classification of deep-water red crab species. Te Ohu Kai Moana Trustee Ltd classified stocks listed in schedule 1 to the Act as inshore or deep-water. Of the hundreds of stocks in the schedule, the stocks of red crab were classified wrongly as inshore rather than deep-water stocks. This is doubtless of significance to the crabs, who remain unaware of their circumstances. It was also, however, significant for the allocation of the settlement quota to iwi. Deep-water and inshore stocks are allocated differently. Inshore stocks are allocated primarily according to the relative coastline length of the iwi’s rohe. Deep-water quota is weighted heavily on the basis of iwi population. Therefore, it is important to the distribution of assets whether stocks are classed as deep-water or inshore. This reclassification is achieved through the amendment put forward in clause 23(2) of the bill.

The third issue dealt with in this bill corrects the omission in the drafting of the Maori Fisheries Act 2004. The allocation procedures in the Act are complex. In the preparation of the legislation a process step was omitted from schedule 6 of the Act. This step concerns the final calculation of allocations for, generally, small amounts of quota attributed to particular harbours around the coast. Clause 24 of the bill puts forward new clause 10A for inclusion in schedule 6 of the Maori Fisheries Act. It completes instructions for the administrative procedure that Te Ohu Kai Moana Trustee Ltd uses when it allocates this quota according to the model agreed by iwi.

Other provisions in the bill tidy up matters associated with these three issues. For example, clause 24(4) inserts new clause 11A into schedule 6 of the Act. It deals with a special case of inshore quota already allocated but not yet transferred to iwi. It reflects a similar provision to clause 21 of the bill, which does the same thing for deep-water allocations. Clause 25 then provides for the validation of some actions associated with technical problems in the Maori Fisheries Act. As I mentioned, the holdings of Te Ohu Kai Moana Trustee Ltd and seven stocks were affected by preferential allocation rights in October 2004. The stocks are listed in clause 23(1). Before this issue came to light, Te Ohu Kai Moana Trustee Ltd and the Chief Executive of the Ministry of Fisheries took statutory action to register a settlement of quota interest over all settlement quota shares. The numbers of shares listed in the paperwork for those actions reflected the schedule of the Act, not the true number of shares as modified by preferential allocation. Naturally, only the shares actually held by Te Ohu Kai Moana Trustee Ltd could have a settlement quota interest registered over them. Clause 25 validates these actions.

Te Ohu Kai Moana Trustee Ltd has gone ahead and allocated quota to iwi in order to get assets to them as quickly as possible. In doing so, that organisation also allocated the seven stocks in accordance with the shares actually held rather than the numbers currently listed in the schedule. So the second validation is of allocations made by Te Ohu Kai Moana Trustee Ltd until now for the same seven stocks affected in October 2004 by preferential allocation rights. This is the only sensible approach to take in the circumstances. This validation just confirms those facts. It ensures that the decisions made are legally robust.

The final matter in the bill that I will speak to is in respect of Part 4. It concerns the amendment of section 20 of the Maori Commercial Aquaculture Claims Settlement Act 2004. That Act settles contemporary Māori claims to coastal space for aquaculture development from September 1992 into the future. Section 20 of the Act is an interpretation section and contains a definition of pre-commencement space. These amendments tidy up matters from the development of two landmark pieces of legislation passed in close succession by the House in 2004. The provisions carried forward in the Māori Purposes Bill 2006 will assist in the allocation of fisheries assets and in the management of fisheries under the Maori Fisheries Act.

ParaonePITA PARAONE (NZ First) Link to this

Ā, tēnāanō koe e te Kaiwhakawā. E tikaana ki te whakakōkuhutiaahautēneiwāiriro ki a au me tōkurōpūmōtēneipire, mōānawāhangatuaruaimuai te Whare neii roto iwātātou reo rangatira nā te mea, he piremōngā take Māori.

[An interpretation in English was given to the House.]

[Greetings to you Madam Speaker. It is apt that I begin my contribution and that of my party in our chiefly language for this bill in its second reading before the House, because it is a Māori Purposes Bill.]

As has been mentioned by previous speakers, the Māori Purposes Bill is an omnibus bill that has been duly considered by the Māori Affairs Committee. The bill proposes a number of amendments to the Treaty of Waitangi Act 1975, the Maori Fisheries Act 2004, Te Ture Whenua Maori Act 1993, and the Maori Commercial Aquaculture Claims Settlement Act 2004. I commend the Minister, Parekura Horomia, for at least having a Māori Purposes Bill this year. This might be the second bill of this nature to come before the House in the short time that I have been in it. I am somewhat surprised about that fact, given the number of social issues—not least economic issues—confronting Māori. Of course, legislation is required to assist Māori in their development in these areas.

In terms of the amendment to the Treaty of Waitangi Act as proposed by this bill, I say that a number of submissions were made by members of the public, many of whom expressed their opposition to the amendment to the Treaty of Waitangi Act 1975, which sets a closing date for the lodgment or submission of historical Treaty claims to the Waitangi Tribunal. Of course, some submitters expressed concern that there had not been an opportunity for consultation with iwi and hapū about this matter, and others submitted that there be no closing date. The setting of a time frame by which claims should be lodged is something that we in New Zealand First support; in fact, it is a policy of our party. It is important for those wishing to make claims that this proposed amendment is about the lodgment of claims only, not about when claims will be settled or about the fact that applications need to be fully researched before their lodgment. I suggest that a number of the submitters who were concerned about this closure expressed that concern in the belief that they needed to have their application and research completed in order to have their claim considered.

But we also need to make reference to what a historical claim is. This bill defines a historical claim as something that relates to events that have occurred prior to 21 September 1992—the date on which the then Government decided what principles would be used for the settling of historical claims. That is not to say that claimants cannot amend their applications; it does give them the opportunity to do so should they find, as a consequence of further research, that they need to include that in their original claim.

As the previous speaker, Jim Anderton, has outlined, the proposed amendments to the Maori Fisheries Act address a number of issues. We in New Zealand First have no problem with that, because it gives effect to the true intent of that particular Act, but it highlights for some of us—particularly those in New Zealand First—the haste in which the original Act was put together. We accept that the amendment would allow Te Ohu Kai Moana Trustee Ltd, when allocating quota to iwi, to take into account changes to the quota shares it holds resulting from alterations to quota management areas under section 25 of the Fisheries Act 1996. It also allows for the reclassification of red crab stocks, and clause 23 of the bill will provide that. The bill also allows for the validation of allocation by Te Ohu Kai Moana Trustee Ltd, and that is covered in clause 25. There was, without exception, support from submitters in relation to this particular amendment, and the report from the Māori Affairs Committee, which dealt with the bill, recognises that.

The Minister made reference to other amendments, particularly Te Ture Whenua Maori Act, to clarify that a judge may determine an application relating to a dispute under the Maori Commercial Aquaculture Claims Settlement Act. We in New Zealand First have no difficulty with that; in fact, it highlights the need for a further amendment in relation to the ability of the Minister to increase the number of Māori Land Court judges, if required. This reflects the added work that the Māori Land Court will need to consider when claims to the seabed, foreshore, and other issues arising from successful Treaty settlement claims arise. It does also allow for the fact that this legislation provides a close-off date for Treaty claims, and gives some credence to the need, therefore, to have the necessary personnel in place to consider the work that will come out of this.

The other point I want to refer to is the issue relating to the validation of decisions made by the then Deputy Chief Judge of the Māori Land Court, Judge Norman Smith. We do not question the integrity of that particular judge, but rather the fact that the House is being asked to validate the decisions he made during, I think, the month of November 2002, and to ensure that the orders made by his court are indeed orders of the court. I point out that, in considering this application, some of us had concerns about the introduction of retrospective legislation to validate these orders. Our concerns really were about whether those families and hapū—and, in fact, iwi—affected by this issue were aware of it. The speaker from National did indicate some concern about whether those who were affected by the orders made by the court at that time knew of their ability to appeal the decisions, or to express some concern, or whether they had even been notified about this legislation. I am assured by the officials that although this may have caused some logistical problems, they did not perceive there being any difficulty with passing legislation that would validate those orders.

I signal that in relation to the increase in the number of Māori Land Court judges, I propose to have my member’s bill, which has been drawn from the ballot, considered as a Supplementary Order Paper in the Committee stage. Without further ado, I again confirm that New Zealand First will support this bill.

TureiMETIRIA TUREI (Green) Link to this

I want to tell a story about how the Treaty settlement deadline in this bill came to such prominence. The story starts with a speech at Ōrewa. In early 2004 Don Brash, the then leader of the National Party, made a speech that came to be known as Ōrewa I. In it he advocated the old integrationist policies of the past and specifically attacked Māori as having special privileges over other New Zealanders. This speech was purposefully written to push the buttons of the prejudiced and incite fear in the general population about Māori. It was an explicit attempt to incite race hate in our country. Thinking people said, at the time, that National was playing the race card in order to attract the votes of the prejudiced and the gullible. The full extent of this manipulative racism has only come to light through the leaked emails discussed—

PowerSimon Power Link to this

I raise a point of order, Madam Speaker. Although, on the whole, I often agree with the member’s speeches to the House, it is not appropriate under the Standing Order to refer to a member of this House as racist or anything that a member has said as being racist. I ask you to bring the member to order.

TureiMETIRIA TUREI Link to this

Speaking to the point of order, Madam Assistant Speaker, I point out that the rule is that no member of this House may describe another member, or what a member has said, specifically as racist. It does not prevent a member from describing policies, ideas, or issues as racist, where that is appropriate.

HartleyThe ASSISTANT SPEAKER (Ann Hartley) Link to this

The member is quite correct, and I refer the House to the Speaker’s ruling made by the Hon Doug Kidd, which makes that very clear.

TureiMETIRIA TUREI Link to this

It was an explicit attempt to incite race hate in our country. National was playing the race card in order to attract the votes of the prejudiced and the gullible. The full extent of this manipulative racism has only just come to light through the leaked emails discussed in Hager’s book The Hollow Men. Clearly, this was not a speech based on policy. National’s policy was not framed in that way, and its spokesperson Georgina Te Heuheu never advocated such ideas. The speech was not even written by Dr Brash. It was written by a small extremist cabal within Brash’s office, who wanted to reverse the poll slump that their man was leading. It was a position based on lies. The examples that National used were extremes: facts were misrepresented and history reinterpreted to give the impression of Māori as a privileged group in society—a bizarre position to take, given the facts. But the facts did not matter. The speech included paternalistic comments about Māori in order to pass a “political hygiene” test. So along with descriptions of Māori as having mischievous minds, having power of veto over development, and using stand-over tactics—

TolleyAnne Tolley Link to this

I raise a point of order, Madam Speaker. I ask about the relevance of the speaker’s line of debate in relation to the bill before us tonight.

HartleyThe ASSISTANT SPEAKER (Ann Hartley) Link to this

A Māori Purposes Bill is a broad bill. The member is speaking to the bill.

TureiMETIRIA TUREI Link to this

It was a bizarre position to take, given the facts. But the facts did not matter. The speech—

TolleyAnne Tolley Link to this

I raise a point of order, Madam Speaker. I am just looking at the bill before us tonight and I cannot see anything about Ōrewa speeches; I cannot see anything about emails; I cannot see anything that would in the least bit relate to the member’s speech.

HartleyThe ASSISTANT SPEAKER (Ann Hartley) Link to this

The member has been addressing the issue of Treaty settlements in its context.

TureiMETIRIA TUREI Link to this

The speech included paternalistic comments about Māori in order to pass the “political hygiene” test, so along with those descriptions about Māoris having mischievous minds, there were also very patronising comments about Māoris having a “special” place in New Zealand. When challenged by the media to identify the specifics of that policy, all of those involved in the preparation of the speech refused to answer, because the examples simply did not exist. Even Dr Brash’s own media team said there were no major race-based funding examples to be found.

At the time that speech was delivered, there were some rumours of concern from National Party politicians; most notably from the spokesperson on Māori Affairs, who soon lost her role as a result. But the vast majority of the National Party members and caucus sat by and watched, knowing that they would directly benefit from the hate, heat, and division that that speech would cause in the community. And benefit they did! Poll ratings soared for National. The race-hate rhetoric continued from that speech to the election campaign where the “iwi versus Kiwi” billboards specifically set out to isolate Māori from the rest of the community. It was divide and rule—the oldest tactic in the book. No facts, no evidence, no principles—the National Party election campaign.

Meanwhile the sitting MPs were returned to their seats, and many more National Party people became MPs. Their silence on such an unprincipled stance was deafening. But, of course, the negative impacts of the speech were not felt by the largely Pākehā membership of the National caucus. They were not the ones being accused of widespread abuses and of destroying the country. They were not being accused of corruption or nepotism. It was Māori who were being abused on the streets as a direct result of that speech. I have had reports of young Māori, virtually children, being taunted and abused by adults after Ōrewa. It was National that gave the ignorant and the bigoted the permission to behave in an openly racist manner.

Who did Māori look to, to combat the lies and divisiveness being perpetrated? They looked to the Government, which was in the middle of the largest confiscation of Māori land in the history of our country, and which was still the only viable power that had the resources and the facts to comprehensively combat those lies. But what did they get from a Labour - Progressive - United Future Government? Some Labour MPs were concerned, and there was some rhetoric about that. But the Labour Government turned on Māori like National had, and, like many in the community were doing, the Government lost its nerve and attacked not National, which was distorting the facts and manipulating fear, but Māori. Instead of defending the record of Māori development and the programmes to assist Māori to break through poverty cycles, Labour turned on Māori too.

Let us look at two of those examples. The first was Labour’s absolute acceptance that Māori were getting special privileges. Labour set Trevor Mallard to the task of finding targeted programmes for Māori and Pacific Islanders to have their funding cut in order to show that Labour was just as tough on the natives as National was purporting to be. National, with no plan, no policy, or intention of doing anything, had blown a dog whistle claiming special privileges for Māori, and like the obedient puppy, Labour came running with a mouthful of bone. In a broad, detailed State Services programme, Labour went through and cut funding to Māori and Pacific Island programmes. Who lost out? Manaaki tauira scholarships, special supplementary grants for the retention of Māori and Pacific students in tertiary education, the promotion of early childhood participation for Māori and Pacific children into early childhood education, and domestic violence programmes to protect Māori women and their children from violent abusers lost out.

But that was not the only thing that Labour did in response to National’s attacks at Ōrewa on the Treaty of Waitangi and the Waitangi Tribunal. Labour obediently decided that Māori should have imposed on them the deadline for the submission of historic Treaty claims to the tribunal set out in this bill. Brash’s nasty insinuation that Māori were using the Treaty—

PowerSimon Power Link to this

I raise a point of order, Madam Speaker. The member needs to refer to another member of this House by either his or her full name or correct title.

HartleyThe ASSISTANT SPEAKER (Ann Hartley) Link to this

Yes, the member does need to refer to the member by his correct name.

TureiMETIRIA TUREI Link to this

Mr Brash’s nasty insinuation—

HartleyThe ASSISTANT SPEAKER (Ann Hartley) Link to this

Dr Brash.

TureiMETIRIA TUREI Link to this

Dr Brash’s nasty insinuation—I repeat that—his nasty insinuation that Māori were using the Treaty and the tribunal process to gain greater civil, political, or democratic rights than others was factually wrong. National knows that the tribunal process rightly and justly investigates crimes such as theft, murder, wrongful imprisonment, and rape. But the truth was not the point for either National or Labour. Rather than make this just a simple policy on which Labour could consider the issues, Labour turned it into one of its three major election promises, from which it now cannot back down. Labour, barking to National’s whistle, has explicitly agreed with National’s distortions and manipulations about Māori. This bill will force Māori with few resources to meet a deadline imposed to benefit the Government and to appease the ignorant, who now could not actually care less. We have, in this bill, the final stages of the implementation of National’s race-hate rhetoric and Labour Government law.

FlavellTE URUROA FLAVELL (Māori Party—Waiariki) Link to this

Madam Speaker, kia ora tātou katoa, itēneipo. The Māori Party is not about to buy into a culture of silence that appears to have strangled some members of the Government. We are about to speak out in this House about things that matter and we think Te Tiriti o Waitangi is a pretty good place to start. So what do we have here? For starters, we have a bill that amends the Treaty of Waitangi Act 1975. The bill before the House proposes the imposition of a closing date of 1 September 2008 for new historical Treaty claims to be submitted to the Waitangi Tribunal. That is it; end of story. No more claims can be submitted after that date.

The bill also provides a new definition of “historical Treaty claim” to take in claims relating to events occurring before 21 September 1992. For the first time in our history the bill is inserting into legislation a definition of “historical Treaty claim”. Up until this point there has not been a formal distinction between historical and contemporary claims. This bill makes the changes.

Twenty years ago, in 1986, Cabinet agreed in the area of policy development and legislation that Māori should be consulted on all significant matters affecting how the Treaty is applied. One year later in the ground-breaking case New Zealand Maori Council v Attorney-General— the lands case—the Court of Appeal characterised the Treaty relationship as a special partnership, which was reflected in four fundamental principles: firstly, fiduciary duty in that the Crown has a duty actively to protect Māori interests; secondly, a full spirit of cooperation, so where there are Treaty implications the responsibility for the Crown to make informed decisions will require consultation; thirdly, the honour of the Crown where the Treaty is a positive force in the life of the nation and thus the Government; and, lastly, fair and reasonable redress.

As a result of that case, Parliament took action to improve the statutory protection of Māori interests. And then here we are today. Let us be clear—18 of the 20 submissions received were to do with concerns about the imposition of a closing date. They urged the Government to consult adequately with Māori regarding the reasonableness and appropriateness of the cut-off date of 1 September 2008. The Dunedin Community Law Centre and the NgaiTahu Maori Law Centre argued that good government demands more than doing what is popular. It demands that action be taken to address the valid claims of hapū and iwi who were wronged by the Crown. This cannot be done without a fair and impartial process. The Human Rights Foundation argued that a process of dialogue should be initiated with the aim of securing broad Māori agreement with the provisions in the bill, particularly those relating to the deadline for lodging historical Treaty claims. The Treaty Tribes Coalition noted concerns that the bill will undermine the settlements process.

It seems to me that these groups know the Cabinet guidelines, court findings, and statutory responsibilities better than the Crown does. As at 30 April 2006, 1,315 claims had been lodged with the Waitangi Tribunal. By anyone’s estimates, that is a significant volume of claims. The downside is that we have no idea, really, about the number of claims that could possibly come through the door. Worse still, more grievance could be created by the whole process anyway where there are things like cross-claims, for example.

What is the evidence from consultation to justify that one side of the Treaty’s signatories—the Crown—can unilaterally impose a cut-off point, a deadline, a point of no return and say that it is fair. This sort of attitude reminds me of the settlement process we are currently suffering. One of the great ironies of this Government is the way in which Treaty claims are frequently described as contributing to the process of reconciliation. The Office of Treaty Settlement’s guides to Treaty claims and negotiations with the Crown is entitled Ka tika a muri, ka tika a mu: Healing the past, building a future. The Waitangi Tribunal website puts the case even more forcefully: “The Waitangi Tribunal inquiry process contributes to the resolution of Treaty claims and, in that way, to the reconciliation of outstanding issues between Māori and Pākehā.” Yet in this Māori Purposes Bill, issues of such national significance for all New Zealanders, issues that are central to the reconciliation and healing process as required in the relationship between Māori and Pākehā, are imposed contrary to all Treaty principles of partnership, participation, and informed decision-making through effective consultation.

On the upside, I suppose there are one or two positive aspects to the bill, which are there basically to spice up the lousy parts. The Māori Party supports the increase in the number of Māori Land Court judges from eight to 14. In the interests of efficiency, we also support the delegation by the Chief Judge to the Deputy Chief Judge in order to deal with an increase in expected future caseloads. But this does not change our fundamental concerns about the Crown’s imposed ultimatum, without the prior discussion and agreement with Māori parties to the Treaty. We remain extremely concerned about the failure of any funding to be allocated to enhance the process, as put forward by MetiriaTurei.

It is a matter of much significance that neither the Waitangi Tribunal nor claimant groups are being given the necessary support to assist in the process of helping claimants to formulate their claims before 1 September 2008. Te Rūnanga o Te Arawa in its submission reminded Parliament of the recommendation of the UN special rapporteur that the tribunal must be “allocated more resources to enable it to carry out its work more efficiently and complete its inquiries within a foreseeable time frame.”

The other group of concerns that are located in this bill are to do with the way in which the proposed changes will impact upon the Maori Fisheries Act and the aquacultural policy. The Maori Fisheries Act will be amended to enact revised numbers of quota shares in respect of seven different stocks. The Maori Commercial Aquaculture Claims Settlement Act will be amended, with the effect being that potentially the amount of aquaculture space allocated to iwi will decrease. The changes are given scarce detail and little explanation. In fact, the New Zealand Māori Council is so concerned about the impact of these changes that it submits that the bill “undermines the spirit and intentions of the 1992 fisheries claims settlement, and is another attempt at eroding Māori fisheries rights by making technical adjustments here and there.”

I read a paper by Bell Gully Senior Associate Mr Damian Stone, who described the Māori Purposes Bill as “the most significant legislation affecting Māori to be introduced into the House in the current parliamentary term.” Mr Stone went further to suggest that the changes inherent in this bill are arguably the most significant changes to the Treaty of Waitangi Act since the tribunal’s jurisdiction was extended in 1985 to provide it with the capacity to inquire into historical claims dating back to 1840. If Mr Stone is right—and we have every reason to believe so—then how can the Crown adopt all the finesse of a bulldozer in forcing through such momentous changes? The Māori Purposes Bill not only walks right over the interests of Māori but also serves to constrain and limit the rights of participation of future generations in the Treaty claims process.

In concluding, I say that in a process of reconciliation, and of healing the past to build a future, surely past wrongs must be addressed alongside a commitment to ensure that no fresh grievances are created. The unilateral imposition of a time limit, and a consultation process that saw 20 submissions received but only eight heard, are not signs of a commitment to a mutually healthy future.

The Māori Party believes in the ideals espoused by the New Zealand Māori Council—that a framework for the resolution of Treaty claims will reflect integrity, honesty, durability, and good faith between the Crown and Māori. The Māori Party will oppose this bill. It is our view that, like all Treaty settlements to date, it is another example of the continuing breaches of the Treaty of Waitangi by the Crown.

FairbrotherRUSSELL FAIRBROTHER (Labour) Link to this

It is my pleasure to follow Pita Paraone in speaking to this Māori Purposes Bill, that member having been on the Fisheries and Other Sea-related Legislation Committee that considered the Maori Fisheries Bill. As members well know, that committee was consumed with pressure and careful deliberation, which allowed two further iwi to be adopted into the model—namely, Ngāti Hine, in which Pita Paraone has some interest, and Rongomaiwahine, which separated to that extent from Ngāti Kahungunu. As chair of that committee, I confirm that we focused on the model, and that the amending of detail by this bill simply follows sequentially from the fishing quota in the Fisheries Act, which the Maori Fisheries Act also coordinates.

I move to the second aspect of the Māori Purposes Bill, and that is the historic Treaty of Waitangi claims. I enjoyed listening to the previous speaker, Te Ururoa Flavell, and one cannot disagree with many of the lofty principles to which he referred. But that ignores one thing, which is that the Waitangi Tribunal sits as a court. It has judges, and it has a process and a procedure akin to a court—a court of inquiry. Every court in this country has time limits. Every court in this country is bound by limitations. There is the statute of limitations and there are common law limitations. In the Crimes Act, whether or not there are statutory limitations there is the limitation of the life of the offender. So when we look at the necessity to bring in a limitation on historical claims, we must look at it in the reality of legal practice.

I speak as someone with some limited experience of the Waitangi Tribunal, having been the solicitor who lodged Wai 55, one of the very early claims, in the mid-1980s. That was at a stage when solicitors acted pro bono for Treaty claims, because there were absolutely no resources to lodge claims, and working on them required love and dedication. In contrast, these days claimants generally are very well funded and are able to research their matters. The Wai 55 claim was eventually resolved some 12 years later, but not before the original statement of claim had been amended so many times such that it bore very little resemblance to the original statement of claim, because of the better resources of successive counsel and their widening knowledge of the Treaty process.

Clause 18 of the Māori Purposes Bill, which amends the Treaty of Waitangi Act, introduces new section 6AA, and subsection (2) states that the limit “does not prevent a historical Treaty claim submitted to the Tribunal on or before 1 September 2008 from being amended in any way after 1 September 2008.” That is a very wide provision. All it requires is for potential claimants to identify in a general way the area of their claim, and to give notice of that by lodging a pro forma claim before the tribunal. Thereafter they have all the time in the world to put their claim into an order that can make it be strongly and soundly argued. That is the history of many successful claims before the tribunal, and it will continue in that way.

It is common sense that there should be some time limit. All the kaumātua who originated the claim with which I was connected, Wai 55, died within a short period of its being lodged. Those who eventually argued the claim did so by retelling stories that had been retold by three, four, and perhaps five generations. It was only the ability to find some objective evidence—such as middens, which verified some of the oral recollection—that gave the claim the power it eventually had. It is not an unusual precept of law to have time limits, and this one is very generous in the extreme, because the claim can be amended in any way after the cut-off date.

I move now to the work of Judge Norman Smith, and the provision of the bill that validates the cases on which he sat. The previous spokesperson on Māori affairs for the National Party, Gerry Brownlee, in June of this year said that he wanted a damn good reason why this bill should be passed. Well, there are 85 good reasons, 83 of them being the cases that Judge Smith dealt with. Another good reason is that they are cases of some meaning to many people who have acted pursuant to those arrangements, and those people should not be required, because of a technicality, to revisit them, with the cost, the stress, and the difficulties accompanying them thereto.

But, picking up the 85th reason, I tell members that it relates to the point that Tau Henare tried to make previously, which was that Judge Smith was not a judge when he was sitting, because he did not have his ticket, due to a technical error. Tau Henare ignores the practice in the courts, and the Court of Appeal approval, of solicitors appearing in court who do not hold practising certificates. They frown upon it, they object to it, they comment strenuously about it being a bad practice, but the litigants unknowingly involved are not subject to a rehearing. The lawyer concerned is remonstrated with, but the litigants are not penalised for that oversight. To criticise this oversight is implicitly to criticise Judge Smith himself—a judge of extremely high standing, a man whose reputation is large. To say that he was acting improperly is to reflect adversely on his standing as a judge. It does not do the National Party—a party that claims to uphold the rule of law—any merit whatsoever to take these cheap sideswipes at a person with such a substantial reputation who acted in good faith as he himself was unaware that the technicalities as to his temporary appointment had not been adequately completed.

Before I conclude I want to make some comments on my good friend MetiriaTurei’s contribution. It is always a pleasure to hear her speak on matters taha Māori when she is at full steam. But I must say that her claim, in relation to the foreshore and seabed, conveniently forgets the work of Professor Paul McHugh, who allows that the foreshore and seabed legislation that went through in fact gives more rights to Māori than they could have received under aboriginal law. Those rights arise simply from the fact that there is no right of alienation or exclusivity to land held under aboriginal title, and the key concept of European freehold title is the ability to exclude or alienate. Both those factors are, at best, qualified in aboriginal law, but under the Foreshore and Seabed Act one has the right to obtain a better title than one could obtain under aboriginal law.

So it is an invalid argument. It is emotionally very strong, but it is invalid to wind oneself up by saying that the Foreshore and Seabed Act is a continuation of the deceitful Ōrewa I speech and the message behind it, and to run that at the Labour Government, which is endeavouring in good faith to address the issues arising from the Treaty of Waitangi, and to ensure that, as we bring into legislation the various rights relating to customary matters, that is done in a morally and legally sound way.

I commend the Māori Purposes Bill. The errors it endeavours to rectify are errors that should be properly addressed, and are addressed in this very good legislation.

HereoraDAVE HEREORA (Labour) Link to this

It is indeed a pleasure to follow the previous speaker, my colleague Russell Fairbrother. I acknowledge the wealth of experience he brings on issues relative to us as Māori. I also take this opportunity in the second reading of the Māori Purposes Bill to support the bill. As chair of the Māori Affairs Committee, this debate gives me the opportunity also to raise some of the issues we were faced with in our consideration of the bill.

Although not a large bill, the Māori Purposes Bill brings together a number of amendments to four different Acts. The issues it deals with are varied but they are all important to Māori. This was reflected in submissions on the bill, which included many passionate and thoughtful points of view. We were pleased to receive submissions from a range of groups and individuals. There were 20 in all and the committee gave all of them careful consideration.

It is important to Māori that the Māori Land Court has the ability to deal effectively and efficiently with applications that may arise under both its traditional jurisdiction and its extended jurisdiction under more recent legislation relating to fisheries and aquaculture. The bill contains a number of provisions that will assist with this, including the increase in the maximum number of permanent judges who can be appointed, as and when they are needed, from eight to 14.

In the lead-up to the last general election, the members of the Labour Party undertook that if we were to become the Government, we would introduce a closing date for the submission of historical Treaty claims. This has been done in this bill, which amends the Treaty of Waitangi Act 1975. Although a number of submissions opposed a closing date, it is important that Māori and New Zealand as a nation take stock of what historical claims remain to be settled, so that we all know what work needs to be completed in this area. We can also focus more clearly on the future and plan for the time when historical claims have been settled.

Settlement gives back to Māori not just land or other assets in compensation but also people. All the leadership, time, effort, and energy that go into identifying and resolving claims can be invested in an iwi’s future, in our young people, in our communities, and in enterprises that reflect the spirit of our people. As chair of the Māori Affairs Committee considering the various settlement bills that come before it, I hear firsthand what settlement means for iwi concerned. Time and time again we are impressed by witnessing the pragmatism, the skills, and the commitment of people who have contributed to the settlement process. It is inspiring to think that this resource will continue to be available to help our people progress in other ways following settlements.

Previous speakers have been concerned about the validation of decisions made by an acting judge in November 2000, when he sat beyond the term of his warrant for a short period. The committee considered this matter very carefully and thoroughly. In the end, for most of us it came down to what was due to the people who had applied to the Māori Land Court in good faith and who had had their cases determined by an experienced judge, who also acted in good faith in the short period concerned. In the years since 2000 these people, their whānau, and, in some cases, their successors have relied on those decisions. In many cases, subsequent transactions will have been undertaken involving people who would also have relied on those decisions. Statutory validation will give all those people certainty, and enable them to continue with their lives without the disruption and possible costs that could otherwise result from a situation of uncertainty.

Other changes in the bill deal with the allocation process under the Maori Fisheries Act 2004 and the Maori Commercial Aquaculture Claims Settlement Act 2004, which are also important to Māori. The bill has provided an opportunity to address a number of technical matters that needed to be addressed in the relationship between the Maori Fisheries Act 2004 and the earlier Fisheries Act 1996. Both are complex pieces of legislation. As the process of the allocation of fisheries assets is being worked through, some omissions and errors have come to light, and the bill seeks to address those.

The main changes to the Māori Purposes Bill that have been recommended by the Māori Affairs Committee are additional amendments to the Maori Fisheries Act 2004. When the bill was introduced, it already included a number of technical amendments to the Maori Fisheries Act 2004. Submissions by Te Ohu Kai Moana Trustee Ltd in particular highlighted some additional technical changes that needed to be made. The committee has recommended that three further provisions be added to the bill. The first would amend schedule 1 of the Maori Fisheries Act 2004 to correct the classification of red crab stocks, which should be listed as deep-water stocks rather than inshore stocks. The second provision also amends that Act, to allow for changes to the quota shares held by Te Ohu Kai Moana Trustee Ltd as a result of alterations to quota management areas. If quota areas are amalgamated, for example, the original shares are withdrawn and shares for the new amalgamated quota area issued. As a result, the shares actually available to Te Ohu Kai Moana Trustee Ltd for allocation could differ from those specified in schedule 1 of the Maori Fisheries Act 2004. The last additional provision will validate the actions of Te Ohu Kai Moana Trustee Ltd in allocating quota shares on the basis of quota shares actually held rather than those listed in schedule 1 of the Maori Fisheries Act 2004. The committee supported those amendments as sensible changes to help ensure that the Maori Fisheries Act 2004 and the processes in that Act can operate effectively.

Finally, as chair of the committee I would like to thank the members of the Māori Affairs Committee for their thoughtful contributions and their input into the consideration of this bill. I also acknowledge the Minister of Māori Affairs, the Hon Parekura Horomia, for sponsoring the bill. I am pleased, therefore, to support this bill. Kia ora.

Link to this

A party vote was called for on the question,

That the Māori Purposes Bill be now read a second time.

Ayes 109

Noes 12

Bill read a second time.


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