Public Works (Offer Back of and Compensation for Acquired Land) Amendment Bill

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

I move, That the Public Works (Offer Back of and Compensation for Acquired Land) Amendment Bill be now read a second time. Hoi anō, kia ora tātau e te Whare. I te tuatahi hei wāwāhi i waku kōrero, ka huri te titiro ki a koe kai taku rangatira e Tau, kua hoki mai koe ki tō Whare. Nau mai, hoki mai me tō ate hou hei whakahihiko i te ngākau, ka mutu, e hari koa ana kua hoki ora mai. Nau mai, hoki mai. Otirā, ki a tātau e hoa mā mō te āhuatanga o ngā mate o te wā, waiho rātau kia moe. Anei tātau kua hoki mai ki roto i ngā pakitara o te Whare, tēnā koutou, kia ora tātau.

Ko tāku i te tuatahi he mihi kau atu ki te komiti nā rātau tēnei pire i titiro i ngā marama kua hipa. Ka mihi rā ki te Local Government and Environment Committee. E hoa mā, tēnā koutou katoa. Ka nui te mihi ki a Chris Auchinvole, te tiamana o taua komiti i whakatuwhera nei te kūaha kia tae atu ahau ki te whakatakoto i ngā kōrero e pā ana ki tēnei pire. Ki a au nei, i āhua areare mai ngā taringa ki te tikanga o taku pire, ka mutu, ahakoa he āhua uaua ki ētahi. Ko te mea nui i tae mai ngā tāngata o te motu ki te whakatakoto i ō rātau whakaaro ki mua i te komiti, ka mutu, i rongo te komiti i ngā kōrero. Te āhua nei e kore pea e eke ki te taumata i wawatatia mai ai i ngā marama kua hipa engari ko te mea pai, i kōrerohia, i wānangahia. Nō reira, ka nui te mihi ki a koutou katoa i kaha rongo nei i te tikanga o tēnei pire.

[So greetings to us, the House. First of all, I open my address by looking in your direction, Tau, my honourable member; you have returned to your House. Welcome back with your restored heart that makes you vibrant within. How happy I am that you are back and alive. Welcome back, welcome back. In respect of the departed fellow members, allow them to rest there. Here we are, back within the walls of the House, so greetings to you collectively, and to us all.

First, I want to acknowledge the Local Government and Environment Committee, which considered this bill in the past months, and the members on it. To you, the committee members, thank you. To the chairman of that committee, Chris Auchinvole, I greatly appreciate the opportunity you provided that enabled me to appear before the committee to make personal representations on this bill. I feel that the purpose of my bill struck a chord somewhat with those who listened, even though some had difficulties coming to terms with it. The important thing is that the people of the country came before the committee to present their views, and ultimately the committee heard them. I get the feeling, however, that what I desired in the past months will not be achieved, but the best thing that has come out of this process is that it was addressed and debated. So I appreciate greatly all of you who listened intently to the purpose of this bill. ]

The Waitangi Tribunal’s He Maunga Rongo: Report on Central North Island Claims of 2008 stated that the taking of lands in the central North Island was “a major grievance”, and that “the compulsory taking of land and resources—without consent and sometimes without compensation, by legislation unsanctioned by Maori communities—has given rise to an enduring and powerful grievance.” This bill, which I have put forward, responds to that challenge to address the enduring and powerful grievance of the legislative history that has been unsanctioned by Māori communities.

Māori land has over the years both been taken under the Public Works Act for a specific purpose and purchased by the Crown for specific purposes. In most instances, land sold to the Crown for a specific purpose has been sold by Māori for only that specific purpose, and for no other. With that principle in mind, this bill, which I have had on the books for some time, proposes either that land sold to the Crown should be offered back to the original owners and/or their descendants, or that compensation should be offered. That is the point of the bill.

We have a legacy of Waitangi Tribunal reports in this land that suggests the Crown has historically failed to honour its obligations and responsibilities as articulated in article 2 of Te Tiriti o Waitangi. Those reports have said in the strongest terms that the Crown has an obligation to protect Māori land for use by Māori for as long as Māori wish. We know too that the evidence of these words is revealed by the amount of land taken from Māori by the Crown and its agencies using the various tranches of the Public Works Act over successive generations.

During the select committee process submitter after submitter, when describing the way in which Māori land has been taken in a disproportionate manner over the decades, told us that the Public Works Act 1981 creates discrimination. Atareta Poananga shared her views on the way in which the Waitangi Tribunal’s reports have dealt with public works takings, and talked about the fact that they have described what she called “a crucial insight into the human cost of Crown policies and practises … In the Turangi Township Report for example the Tribunal described the statutory powers of the Crown as ‘draconian’ and that many ‘suffered grievous spiritual loss, the scars that remain today’.” She reported that “The Crown operates from a world view that assumes the inherent superiority of certain values and beliefs which are firmly rooted in Western Law.” Her challenge to the committee was that “Tikanga Maori should be elevated to the same status as Tikanga Pakeha”.

Atareta Poananga also advised the select committee of the view of Te Roopu Arataki, a group of Māori who were considered to combine a specialist technical focus with knowledge of tikanga. Te Roopu Arataki assisted Land Information New Zealand on policy development for a review of the Public Works Act. It was their unanimous opinion that “not one more acre of Maori land should be taken for Public Works purposes.”

I might add that this is the phrase that my colleague Hone Harawira has upheld in the last couple of days. In fact, he has breathed new life into that phrase, which originated in the Māori Land March to Wellington 35 years ago. The march had as its slogan, as I say, “Not one more acre”, because Māori were scared about how much Māori land was being gobbled up by the Crown. Such is the passion that many of our people have in wanting to retain their land. This bill is related very much to the passion that our people sang about and continue to sing about, and in some cases even march about.

My view is that this bill has the most honourable intentions. The bill proposes amendments to the Public Works Act 1981, specifically section 40, in order to ensure, firstly, that the former owners of land who have been deprived of that land by the Crown for the purposes of a public work are given the right of first refusal to purchase that land when the Crown no longer requires it for the particular public work for which it was originally acquired. Secondly, the bill would ensure solatium payments for the former owners of land who have been deprived of their land for a public works purpose for which the land was never actually used. Thirdly, it would ensure that where the former owners are deceased, the descendants of the former owners can exercise the rights set out in section 40(1).

I have read the view of Land Information New Zealand that the purpose of the bill is already met through the current mechanisms for redress, compensation, and offer-back available through the court system and te Tiriti o Waitangi settlements process. But I put it to the House that the very solid evidence that came out of the approximately 71 submissions on the bill was that all the legal and Māori submissions were actually in favour of the bill’s proposals. I understand that the select committee does not want the bill to proceed; that is a little bit disastrous. That is its view, and there is little that I can do about it, unfortunately. But I strongly recommend that section 40 of the Public Works Act and the incidental sections be reviewed.

It is my strongest view that the Crown has an obligation under te Tiriti to protect, preserve, and promote the retention of Māori land by Māori by adopting policies and practices that facilitate that obligation. Given the major role that the Crown has played in the dispossession of Māori of their land, the Crown must have a major role in rectifying the critical land-loss situation that Māori confront in 2010. The dispossession of land from Māori is an indictment on the Crown. We will never forget that where Māori once held 660 million hectares, now, in 2010, Māori control less than 6 percent of the land mass of Aotearoa. We say “Not one more acre”.

The Public Works Act as a whole was often used in unscrupulous ways. Against that background, although the members of the select committee understood that the intention of the bill was laudable, the practicalities of such legislation were clearly a bridge too far to cross.

Finally, I submit that the failure of the Crown to protect Māori land as agreed to within article 2 of Te Tiriti o Waitangi is a blatant breach of its obligation to Māori. I stand on notice before the House to say that if this bill does not proceed today, the Māori Party will nevertheless continue to uphold, and be dedicated to, our commitment to protect and preserve the whenua that is still in our hands, as tangata whenua, and for the generations to come.

In closing, I thank in English the select committee for giving solid time to the bill and for listening carefully to my submission. I thank the select committee for giving time to all of the many submitters, and I publicly thank the submitters, who took time out to provide information to the select committee. That was really well appreciated, and I am hopeful that in the end a review of the Public Works Act may well be a positive outcome. Kia ora tātou.

CHRIS AUCHINVOLE (National—West Coast - Tasman) Link to this

I stand to speak on the Public Works (Offer Back of and Compensation for Acquired Land) Amendment Bill. I begin by thanking the honourable member Mr Te Ururoa Flavell for his hard work on the issue, for the seriousness with which he has approached the issue, and for the excellent level of discussion that has taken place in regard to this bill at the Local Government and Environment Committee.

In reflecting on Te Ururoa Flavell’s final comment, which was that he hoped that the consequence of this bill would be a review of the Public Works Act, I can perhaps turn that round slightly without causing offence and say that in the event of the Public Works Act being reviewed, this issue could be part of that review. I think that a review will probably be wider than just this issue, and I think we basically had good agreement on that in the committee.

National rightly supported this bill’s referral to the select committee as we felt it was important that the issues were debated. The Public Works Act was reviewed in 2001, but despite the noise it generated at the time no changes were made. This is one of the reasons why, almost a decade on, it has been worth revisiting this debate. Mr Flavell’s bill has obliged people to consider the Public Works Act, and although the broad intentions of it are good, there are significant concerns associated with the bill as used and as drafted, particularly as to the past, and the potential impact of its provisions. These concerns were pointed out in some of the 71 very sincere submissions we received, and were again highlighted in the advice we received from Land Information New Zealand, the Government department that administers this Act.

This bill seeks to ensure that former owners of Māori or general land taken or acquired by the Crown for the purposes of a public work are given the first right of refusal to purchase that land, where the Crown no longer requires it for the public work for which it was originally taken or acquired. Mr Deputy Speaker, if you have easily understood that sentence I suggest that you could do the cryptic crossword in the Guardian and find it a dolly.

Let me give an example that was brought before the select committee by one of the submitters. Let us suppose that land was essentially bought for a purpose, such as a runway, but then the runway was moved into a different direction and therefore the land was eventually used, say, to house cool-stores at the airport. That was not the purpose for which the land was taken, and that, basically, is part of the argument that affects this whole issue. The bill as drafted would do this, through amendments to section 40 of the Public Works Act 1981.

The bill would also provide for solatium payments to be made for loss of land or opportunities associated with its use where land was acquired or alienated for a public works purpose for which it was not actually used. Where the former owners of the land are deceased, the bill would pass these rights to be exercised by their descendants.

As we noted in the select committee report, it would appear that the bill’s offer-back and solatium provisions are intended to apply retrospectively, and then we start into the major financial, practical, and legal implications, should this bill be enacted. The committee was advised that the number of previous Public Works Acts in New Zealand’s history have all permitted land to be acquired for one use and then used for another if changes in use were in the public interest, and that this allowed for the effective and efficient management of land for public works purposes.

I dare say that members of the House can begin to see the complications that creep into this well-intentioned provision. Provisions proposed in the bill could undermine and invalidate these historical changes of use. In effect, all land where the current use is different from the original public work would become surplus on enactment of this bill, requiring the investigation of this land and its offer back to former owners or successors, and they would have to be defined, irrespective of whether the land was acquired compulsorily or by voluntary agreement. This would be a most unfortunate, unintended consequence.

And not only that—there is no central and easily searchable register of land acquisitions, transfers, and disposals under the Act since it was first enacted in the 1870s. There are likely to be thousands, possibly thousands upon thousands, of properties held by the Crown or local authorities that are not currently used for their originally intended public work but are still being used for a public works purpose.

As such, if this bill were passed it is likely that every Crown agency, local authority, State-owned enterprise, and Crown research institute would have to make an initial assessment of all land under its control in order to establish whether the bill’s requirements affected that land. We were provided with copious illustrations by local authorities as to the detail involved in that. If any part of that land was not being used for the original work, a full offer-back investigation under section 40 of the Act would be instigated. As one can imagine, the resulting workload would be unduly burdensome and costly, especially as implementing the offer-back provisions of the current regime can take up to 12 months for a single property. There would also be impacts on the future use of land.

Let us consider, for example, the situation in which the Crown currently has land, or land has been acquired by local authorities for public works, and it is transferred or set apart for another public work. It is often considered more efficient and cost-effective to use land already in Crown or local authority ownership for a new public work, rather than to acquire more private land. However, if this bill were to be implemented there would be the likelihood that all land in this situation would first have to be offered back to the former owners or their successors, and then we come to the problem again of defining exactly what a former owner or successor is.

The process of offering back and then reacquiring land sounds like a logistical nightmare, and indeed it would be. For a Government that is about cutting red tape and simplifying and streamlining our resources, I would suggest that this bill is the opposite of what we would wish to achieve. Also, to create this degree of bureaucratic procedure was not, in my mind, the intention of the author of the bill. Aspects of the Public Works Act are being reviewed in phase two of the Resource Management Act reforms anyway, which I look forward, as a member of the select committee, to being involved in.

This bill has been carefully considered by the Local Government and Environment Committee, and I take note of the very kind comments that Mr Flavell made towards the seriousness that was given to this bill by the committee, collectively and by individual members. I can certainly say, on behalf of the committee, that it was a very interesting bill and it certainly exercised our minds. I stand by the select committee report, which highlighted many of these difficulties and problems, which, I repeat, were not anticipated by the author when the bill was introduced. National is opposing this bill. Thank you.

Hon GEORGE HAWKINS (Labour—Manurewa) Link to this

I start by congratulating Mr Flavell on bringing the Public Works (Offer Back of and Compensation for Acquired Land) Amendment Bill to the House. One of the important duties of a member of Parliament is to put before the House one’s own ideas and the changes one wants to make. This bill is all about trying to make a difference. For that reason alone, I congratulate the member.

I also say to him that this bill brought about so many issues that one did not know about when one first read it. It became more and more complicated as we went into it. I say to Mr Flavell that perhaps, in the fullness of time, we will see another bill based on this issue. You see, when a member presents a bill to the House, that member does not have the resources that a Government has to plan it, or to look at all the fish-hooks that are in it—and there are many in this bill.

No one can criticise Mr Flavell for having honourable intentions and realistic expectations that the House will want to address the fairness element of the Public Works Act. The Public Works Act is not all about fairness, at all. One of the submitters was the Ardmore Airport company. The land at Ardmore was originally used in World War II as a place where a military airport could be built. Of course, over the years things have changed. It is a very, very busy airport. Indeed, if this bill had proceeded it would have caused all sorts of dilemmas for the airport.

I think one of the worst aspects of the Public Works Act, which was drawn to the attention of the select committee, was that many of the original intentions for taking land under that Act changed over time. When people take land and turn it to some other use, people soon forget the original use. Ardmore Airport turned into a teachers’ college, then Auckland University’s engineering section, and housing, and now it is being used as an airport. The No. 4 Squadron of the Air Training Corps has a base there. A helicopter service is there now. Things change over time, and this bill needs to address those sorts of questions.

We have a situation whereby many councils around New Zealand would be terrified if the bill went through unchanged. They would be scrambling to see what land they took under the various provisions of the Public Works Act and what consequences could flow on from that. For example, land may have been taken many years ago and be now used for public reserves. Land taken for public reserves may now be used for car parking. There could be all sorts of problems.

People came along to the Local Government and Environment Committee and made submissions. The really interesting thing in listening to the submissions was that no one was against the basic concept of being fair and making sure that land is used for its original purpose. But time is a funny thing—it changes things dramatically. I think most people realise that. Things changed quite dramatically in relation to Ardmore Airport and the Auckland International Airport. I well remember that at Māngere, where the international airport is, there was once a grass flying strip with cows all around it. It is now quite different, and it will continue to change.

I think that we make these moves under the Act with the best of intentions. I well remember having to deal with some of these issues when I was the Mayor of Papakura, and it was always a dilemma to try to change the purpose for which land was taken. I say to Mr Flavell that he should not give up. Hopefully, when there is a review of the Public Works Act this matter will become part of that review.

There is a strong feeling that a lot of the land that has been taken under the Public Works Act has been Māori land. When people feel aggrieved by land being taken from them they do not get down to the fine detail of why it was taken and what it is now being used for. It was their land and it is not being used for its original purpose. I do not think this will be the last time we debate this matter in Parliament. I hope that either later on in the term of this Parliament or in the next Parliament there will be a new bill. I think the challenge is to the Government itself to introduce legislation and use the resources it has to present what is a very complicated issue to the House in a way that enables many of the problems to be resolved. When one is a member with not very many resources it is extremely tough.

I think I can say, without fear of contradiction, that everyone on the select committee took a great interest in the bill. That interest was nothing other than genuine and I think we did the best we could to work through some of the problems. But they were too numerous. I do not think that the bill could be put in a workable manner. The select committee has reported back in a way that I think clears out all the fish-hooks. We have laid them open. No one on the select committee criticises Mr Flavell. I think that everyone on the committee thinks he did a good job.

I conclude by saying that, yes, a lot of work has been done by the Waitangi Tribunal and lots of problems have been solved. This is another problem, under different legislation, that needs to be addressed. I hope it will be. Finally, I say once more that Labour understands and has sympathy with the issue, but we cannot support the bill in its present form.

NICKY WAGNER (National) Link to this

I rise to debate the Public Works (Offer Back of and Compensation for Acquired Land) Amendment Bill in the name of Te Ururoa Flavell. This bill looks to amend the Public Works Act 1981. It seeks to ensure that former owners of Māori or general land taken or acquired by the Crown for the purpose of public works are given the first right of refusal to purchase back that land when the Crown no longer requires it for the public work for which it was originally taken, and also that solatium payments can be made for loss of land and loss of opportunities associated with the use of that land when the land was acquired or alienated for public works use but for which it was not actually used. The key here is that it was not actually used.

The Local Government and Environment Committee has considered this bill. There were 71 submissions and a lot of interest in the bill, which led to some fascinating discussions. Te Ururoa Flavell and the Māori Party acknowledge that although the bill contains issues that should be addressed, the bill in its current form is too far-reaching and broad. It raises a new set of issues that would be significant for the country. They further acknowledge that the Land Information New Zealand report on the bill recommends that it not proceed. It recommends that the bill does not proceed because of its retrospective element, which would negate legitimate past use of the public works land and expose the Crown and local authorities to significant financial costs. It recommends that the bill does not proceed because it creates a very restrictive and costly regime for future strategic planning and management of public works and the return of public works land. It recommends that the bill does not proceed because its purpose is already met by current mechanisms for redress for compensation and offer back, available through the courts system and the Treaty of Waitangi settlement process.

The report also notes a series of technical difficulties with the bill. Te Ururoa Flavell suggests that although the bill should not proceed, he would like to see either an overall review of the Public Works Act or at least a review of section 40, which provides a series of issues that he feels any review should include. The first issue is the inclusion of the Treaty of Waitangi in the Pubic Works Act. He would like to see a special review of section 40 because it fails to acknowledge and address the historical injustices created by the use of the Public Works Act to dispossess Māori of their land. He would like to see solatium payments made available by the Crown to beneficiaries, and considers that the Māori Land Court is an appropriate forum to determine these issues.

The Local Government and Environment Committee reported back to the House that it did not want to proceed with the bill. However, it recommended that when the Public Works Act is reviewed the issues raised during the consideration of this bill are included in that debate.

IAIN LEES-GALLOWAY (Labour—Palmerston North) Link to this

It is a pleasure to speak on the Public Works (Offer Back of and Compensation for Acquired Land) Amendment Bill, although it is with some regret that like many of the other contributions this evening mine will be to oppose the bill, for all the same reasons that have already been canvassed. But, like others, I would like to start by congratulating Te Ururoa Flavell on bringing this bill to Parliament and getting it through to a select committee. It was a long road for Mr Flavell. The bill was first introduced in July 2007 and it did not get its first reading until June 2009. So he waited patiently for that first reading. The issues were significant enough for most parties in the House to see fit to send the bill through to a select committee, where those issues could be properly addressed and considered. It was at the point of the select committee consideration that some of the perhaps further fish-hooks in the bill were discovered. That is not to say that there is not resounding support for what Mr Flavell is trying to achieve, and already a few different options have been suggested. Mr Flavell said that he would like to see a review of the Public Works Act, and the chair of the Local Government and Environment Committee, Mr Auchinvole, has said that perhaps one day it will happen, and this issue could be one thing that is considered as part of that review. I hope the debate that has occurred in the select committee and here in the House might help stimulate the Government into proceeding with such a review, and other things may be included in that review, but I hope that Mr Flavell’s concerns might also be addressed.

The Public Works (Offer Back of and Compensation for Acquired Land) Amendment Bill sought to ensure that the former owners of Māori land—or general land, for that matter—that had been acquired by the Crown for the purposes of public works are given the first right of refusal at the point when the Crown no longer requires that land. It also sought some redress where that land has been used for purposes other than what the Crown originally intended it for. This bill had merit. The issues were certainly worth considering, and that is why Labour supported its referral to a select committee. Mr Flavell opened his address by thanking the select committee and by saying that the door was open. He said that he felt listened to and that the bill was discussed by everybody. I am sure that the people of Rodney would have enjoyed receiving the same level of consideration from the Government. They, of course, were shut down at the first reading of the Rodney District Council Bill. But again this is an issue of land, of who controls land, and of who has a say in the way that we use our land. I think that the people of Rodney had just as much reason to have their consideration taken to a select committee and to have the sunlight shine on their issues, as well as on a whole host of other things.

This is a rare moment when this Government has actually given people the opportunity to make submissions on a members’ issue. There were 71 submissions on this bill, which means that the discussion was obviously quite varied and a range of views were heard. Well, a range of views could have also been heard on the bill of my colleague Phil Twyford about the privatisation of Auckland’s assets. There could have been some good discussion on that bill at a select committee. Darien Fenton had a bill to discuss minimum wages for contract workers. That would have been quite a good bill to have at a select committee, as well. I think that the discussion would have been interesting and that we could have come back to the House to consider what the people had to say and what the public thought about that bill, just like with this bill, but, no, the Government shut that one down. Ruth Dyson had an amendment to the Resource Management Act to do with the requiring authority status. That bill was shut down at the first reading. Winnie Laban had, I thought, a very important bill dealing with the rights of the families of people who are suffering from poor mental health, and I know that that bill came very, very close to making it through to a select committee. That would have been a good bill to refer to a select committee.

Do members know what the common theme is here? Those were all Labour bills, and the Government was not prepared to allow those bills to go through to a select committee. We have seen with this bill that there is a very good opportunity to hear the issues at a select committee, and to maybe not progress the bill any further after that but to stimulate some debate so that those issues can be considered, and may then be looked at in another way. With this bill, there has been a proposal about a review, or maybe there are already a few mechanisms available through the Treaty of Waitangi and other issues. But that has all come up as a result of the parliamentary process. It seems that the only way that one can get this Government to rethink its position on anything is to march up Queen Street in Auckland to show the Government that there is political will against what it is doing and that maybe the result of the next election would be at stake. Then we would have a back-down, as we have seen with mining. Then we would get a back-down.

DAVID CLENDON (Green) Link to this

Kia ora koutou. This Public Works (Offer Back of and Compensation for Acquired Land) Amendment Bill seeks, in essence, to give Māori the first right of purchase, the first right of refusal, for land that the Crown has acquired compulsorily, in the event that the Crown no longer has use for that land and seeks to sell it. Māori should have the right at the very least to have first option of buying back land that was taken through the Public Works Act. The Green Party supported this bill’s referral to a select committee because it is a way of addressing a process that has been going on in this country for a very long time—that is, the process of alienation of Māori land. The classic colonising model evolved with the usual impact of bibles and bullets, and introduced illnesses played a demoralising part. Starting as early as 1841, in came a whole raft of legislation—and, indeed, the Native Land Court and the Public Works Act—as some of the legislative mechanisms that either deliberately or consequentially served to deprive Māori of their land, resources, and possessions.

The Treaty Resource Centre has a very instructive document on its website listing legislative violations of the Treaty over the years, from 1840 through to the early to mid-1990s. That document runs to some four or five A4 pages, and it is not a list that should give any cause for celebration or pride to those who are responsible or who have benefited from some of those changes—in fact, quite the contrary. The bill we are considering today seeks to make some contribution to reversing a process and to put in place some provisions that undo some of the harm that has been done over generations.

The point has been made that virtually every report, every hearing, of the Waitangi Tribunal will contain within it some reference to the effect of the Public Works Act in facilitating the alienation of Māori land—the taking of land from tangata whenua. In some instances, compensation was not paid for the land at the time that it was taken. It is interesting to note that in 1908 the Public Works Act first authorised the taking of land by the Crown for public works. At that time Europeans had the right to compensation and the right to appeal, but those rights were not applied to Māori land until nearly seven decades later. It was 1974 before that playing field was evened up. It is an indication that there was not a great deal of goodwill even through the 20th century towards putting right the alienation. The success of the campaign to alienate Māori land can be readily seen in the historic numbers. In 1840 Māori had control of some 66 million acres of land, and within 12 years, by 1852, that had been reduced to some 34 million. Nearly half of the land had been taken by various means. This process went on inexorably, it seemed, well into the 20th century and even into the 21st century, with the foreshore and seabed raupatu in 2004 and the confiscation of that land.

This bill is clearly not being supported by the Government, albeit there is obviously some expression of goodwill towards the principle behind it. But in the interests of restoring justice and some of the material wealth that has been lost, it is important that there be a review of the Public Works Act. We support the view of the proposer that in the course of the review, consideration ought to be given to inserting a Treaty clause into the Act. There needs to be acknowledgment of the historic injustice done, and there need to be some remedies and some mechanisms to remedy those, including solatium payments.

It was quite interesting to note the Land Information New Zealand report to the Local Government and Environment Committee on this matter, which dwelt at some length on solatium payments. Clearly, officials were quite troubled by the notion and the principle of those payments. The report noted: “Solatium payments and loss of use are subjective economic considerations, which would require a highly detailed assessment.” The report goes on to say: “Potentially, the former owner of the land or their successor could be compensated twice.” We accept quite happily the first proposition, which is the notion of subjectivity. Mana, justice, and fairness are very subjective notions that need to be established and debated. Value needs to be assigned to them, but that ought not to frighten us away from the principle of solatium payments at some point in the future. The second proposition, the idea that somehow former owners or their successors would enjoy double compensation, is patently wrong in the way it was posed in the report, but that is a debate for another day and a topic to be returned to.

I think the key assurance that the proposer of the bill should reasonably be expected to secure is a genuine commitment from the Government to return to the primary Act in a timely fashion, and to undertake the significant review that is called for. There is clearly good will for that; it has been expressed here on all sides of the House. I hope that that will not be lost, and that the review will proceed in a timely fashion. The Greens will continue to support this bill, acknowledging, as we do, that there are significant problems—fish-hooks have been referred to—but we support it to inflate the importance of the principle that is underpinning this bill, which is the return of land, and the compensation for land inappropriately taken for which there was no compensation offered. We think that despite support being given for the principle that has been expressed by Government speakers, there is no absolute responsibility on the Government to return to this Act and to have that done sooner rather than later. Kia ora koutou.

LOUISE UPSTON (National—Taupō) Link to this

I am pleased to stand to speak on the Public Works (Offer Back of and Compensation for Acquired Land) Amendment Bill in the name of Te Ururoa Flavell. As other speakers have said this afternoon, the motive for this bill is worthy, but in practice the further the Local Government and Environment Committee looked into this bill, the more troubling it became. A number of submitters were in support of the intent behind the bill, but they raised serious concerns from a wide range of quarters, whether they were the Manukau City Council, the Wellington City Council, groups such as Federated Farmers and Vector, or airports such as Auckland Airport.

I will talk about some of the challenges that have arisen as a result of the submissions to explain in a little bit more detail why this legislation will not work, why National will not be supporting it in the second reading debate, and why the select committee as a whole reported back that it recommended that the bill not be passed. There are a couple of issues or challenges, such as the retrospective nature of the legislation, the definition of “original use”, the unintended consequences that arise, and also the impact on future land use.

We will look first at unintended consequences. I will use an example that Vector, which opposes the bill, brought forward. It is not just Māori land that is affected by this bill, it is all land. There could be a situation where a piece of land was subject to discussions under the Public Works Act and was then acquired voluntarily through a sale and purchase agreement. That land would then be subject to this legislation. So, no matter how the land was acquired, it would be subject to the offer-back requirements. One of the issues is that even if the land is not required for the original purpose for which it was purchased, it may be required for other public works. I will give a couple of examples of that. One of the problems with this bill arises in a situation where there is a piece of land that is currently used for a public work. There could be more than one public work utilising that site. Co-location is more prevalent these days, so the problem becomes compounded.

In terms of the retrospective nature of this legislation, the bill would create significant expense both for central government and local government. It would be incredibly inefficient to have to offer back land to the original owner, assuming we could track them down. If the land were still being used for a current public work, even if not the original public work, that organisation, whether central or local government, would have to go through the process of repurchasing that land, which is very bureaucratic and cumbersome, and, of course, not at all what this current Government is interested in; we are about getting rid of red tape and getting rid of bureaucracy.

Then there is the issue of original use. Again, this Government is spending billions of dollars on infrastructure, unclogging the arteries of our country. I will not go into the matters of unclogging arteries like the Hon Tau Henare has already described earlier in the House today. But I do want to give a simple example of how original use can change over time. If we think back, there may have been some land that was purchased, let us say, for a post office or a manual telephone exchange. Over time, the land went from a post office, to a telephone exchange, to a cabinet on a side of the road, and now to a fibre optic cable under the ground. The argument that submitters raised was in respect to whether that fibre optic cable was the original purpose for which that land was acquired. If we were looking at it from a pure perspective, we would argue that it was not. If we look at it from a pragmatic perspective, we would have to argue that it does, and that is why the original use definition creates significant problems.

If we take that argument forward, we can then look at the impact on future land use. I will use the example of an airport. An airport clearly needs room to expand in the future if it is planning for a 50-year horizon, not a 5-year horizon. One of the airports that came to submit to us said that it had significant blocks of land that were for the purpose of an airport. Currently it did not need that land, but it would need it in the future. All of a sudden, there would be a problem if this bill were to pass whereby that airport would have to offer back the land that it was not currently using for an airport but would need in the future. It would then have to hope that in the future when it needed the land it would be able to purchase it back, which is fairly unlikely. That is a bit ridiculous. Those are some of the complicating factors with this bill.

Another unintended consequence of the bill was raised by Wellington City Council. It gave another example of a difficulty around a public work and the use of the land. The Wellington City Council gave the example of a paper road that is not used as a road, but is used for the very important purpose of flood control. Under this legislation, I ask whether we would expect the Wellington City Council to have to offer back the land that it so desperately needs for flood control, because the land is not being used as a road. Those are numerous examples of how difficult this legislation was the deeper we delved into it.

I must say again that the intention of the bill was great. I commend Te Ururoa Flavell on bringing the bill to the House and on getting it through the select committee process. He and the select committee members recognise the difficulty with progressing it further. I recognise that there are some difficulties and some problems that need to be solved, and some of the submitters also said that the public works legislation needs further attention. This Government will look at aspects of the Public Works Act when it does its phase two reform of the Resource Management Act. The first phase was incredibly successful. It is great to look towards the next round of reform, part of which will incorporate the Public Works Act.

We do recognise on this side of the House that there are some issues, but unfortunately this bill does not fix them. I look forward to being part of the committee working on the second phase of the Resource Management Act to pick up some of the issues with the Public Works Act. Thank you.

PHIL TWYFORD (Labour) Link to this

I rise to support Labour’s position in this debate that this Public Works (Offer Back of and Compensation for Acquired Land) Amendment Bill should not proceed any further. We supported the bill at its first reading. We believed it had considerable merit and it deserved the chance for proper scrutiny, analysis, and debate at a select committee. That is what it got. I want to join those before me in this debate who have acknowledged the good intentions of Te Ururoa Flavell in bringing this bill to the House. There is no doubt that the select committee engaged with this bill with a great deal of seriousness. There were 71 submissions to the committee. Almost everybody recognised that there are significant issues of rights and justice associated with this bill. As a consequence, there was a seriousness about the debate. However, at the conclusion of the debate, a strong view had formed on the select committee that this bill carries with it too many unintended consequences, and that its effective result would be to open a can of worms that is too big and too challenging for our current legal framework in this area to deal with. The consequences would make it unworkable.

I shall reflect a little on the Public Works Act, and what an important role it plays within our legal system and the modern history of this country. Others have noted that a view was formed in the course of the select committee process that this bill correctly identified a problem but offered an unworkable solution. I suggest that part of the reason for that is the underlying problem that the Public Works Act itself represents a trade-off between two different sets of values. On the one hand, we have private property rights, which play a central role in our society and our culture. On the other hand, the Public Works Act is a product of 19th and 20th century thinking about the development of the State—infrastructure, ports, roads, bridges, railways, and public buildings. It is the full gamut of physical infrastructure that is needed for the development of the State and the pursuit of the public good.

There is no doubt that in New Zealand, as elsewhere around the world, the original Public Works Act, which we inherited from the British jurisdiction, played a critical role in the early nation-building of Julius Vogel, with the expansion of roads, rail, and so on. Over the years the legislation had evolved to recognise the rights of property owners. Nevertheless, the Public Works Act itself gives powers to the State to override private property rights in the interests of the community. Those two values are in contradiction. A careful web of concessions, rights, responsibilities, and obligations has built up over the years around the Public Works Act. To start unpicking that now, or to seriously renegotiate the balance between those two legal principles, is an ambitious proposition that almost all of the submitters and the select committee were not willing to entertain.

Two key concerns emerged from the discussions at the select committee. The first is the retrospective nature of the application of the buy-back provisions and the solatium provisions. It was felt by many of the submitters and, I think, by most of the committee that it would have destabilising and impractical consequences for the administration of the Public Works Act in New Zealand. The effect of the passage of this bill in its current form would be to deem all land that had been acquired under the Public Works Act surplus land overnight, and it would necessitate a massive project of historical research and legal determination to work out whether the provisions of this bill would apply to thousands and thousands of pieces of land from one end of this country to the other, whether former owners or their successors could be identified, and whether land would have to be offered back. Thousands of properties all around the country have been used by the Crown and local authorities for numerous different purposes since the Public Works Act was enacted in the 1870s. We believe that that would have been completely unworkable.

The second big objection is the impact on the future use of land and that the provisions of this bill would have created such an enormous compliance cost on local government, the State, and the various other Crown entities that are empowered under the Public Works Act. They currently have huge portfolios of land that have been acquired under the Act and are being held for some future public work, are in the process of being transferred or set apart for some reason, or are in the process of being disposed of when no longer required. The view we heard from many of the submitters, particularly from local government, airports, and ports, was that the rationale built into the Public Works Act allows the use of a piece of land that has been acquired under the Act to be changed over time if it is seen to be in the public interest. On balance, that is a more efficient and cost-effective way to use these resources than it would be to offer that land back to former owners before the use could be changed.

The effect of this would be to completely freeze up the process of the acquisition of land under the Public Works Act for infrastructure. Personally, I am extremely conscious that we have an infrastructure deficit in this country. When I look at Auckland, I see that the needs for investment in infrastructure over the next couple of decades are huge. We are talking about the rail system Auckland needs, which Steven Joyce is back-pedalling on as fast as he can, the investment in broadband, and the investment in water, infrastructure, and electricity. Those needs are huge in our country’s biggest city. The appropriation of land under the Public Works Act for this infrastructure—not only for roads, rail, electricity, and water but also for the urban renewal projects that are so needed in Auckland—will require the agglomeration of land under the Act to undertake the kind of ambitious urban renewal that Auckland needs. I would hate to see the ability to acquire land for these purposes compromised or jeopardised.

Those are the two main objections that emerged from the discussions in the select committee. I cite an example that Waitakere City brought to the select committee about land on the Te Atatū peninsula that was acquired by the Auckland Harbour Board in the 1950s. The board thought the land might be needed for a future port for Auckland. There is no evidence that that land was compulsorily acquired. It was negotiated and paid for, and the land was held. Obviously, no port was ever built there and periodically Waitakere City reviewed it. The land has been used for many other public purposes, including being set aside for a marae and recreational purposes.

Dr CAM CALDER (National) Link to this

E ngā mana, e ngā reo, e ngā rangatira mā, tēnā koutou, tēnā koutou, tēnā koutou katoa.

RAHUI KATENE (Māori Party—Te Tai Tonga) Link to this

It seems entirely fitting as MP for Te Tai Tonga to have the last word in this debate on the Public Works (Offer Back of and Compensation for Acquired Land) Amendment Bill. I want to take us back to the words of the Waitangi Tribunal in 1991. The report began with the now historic statement: “The narrative that follows will not lie comfortably on the conscience of this nation, just as the outstanding grievances of Ngai Tahu have for so long troubled that tribe and compelled them time and again to seek justice.” The Tribunal acknowledged Ngāi Tahu’s generosity to the nation and noted that “Ngai Tahu have not objected to giving up their lands when they were satisfied that this was for the public good. They are, however, well justified in objecting to the Crown’s failure to return such land once that public interest has been served … To be consistent with the obligation to protect Ngai Tahu’s rangatiratanga over their lands, we feel that the tribe’s continuing interest in lands devoted to the public good should be recognised by the Crown.”

When Te Rūnanga o Ngāi Tahu presented to the Local Government and Environment Committee it was, no doubt, the weight of these words and the legacy of this history that led them to their deliberations. The rūnanga fully supported the intent of the bill but suggested that the bill does not go far enough. I acknowledge my colleague Te Ururoa Flavell for his determination, his vision, and his steadfast endeavour to ensure that no more Māori land will be taken by the Public Works Act.

I have been sitting in the Chamber this afternoon listening to the speeches made by the members who have spoken on this bill, and I have to say that I am extremely disappointed in the attitude that has been taken. Members said that the further we got into this bill, the more unintended consequences we saw. They said that it was impractical, that there were huge compliance costs, that it was difficult to deal with in the public good, and so on and so forth.

I will give a little bit of history to the House. I am from Te Wai Pounamu. I am Ngāti Kōata from Te Tau Ihu; I am Ngāi Tahu from Te Wai Pounamu. The Te Tau Ihu claims report has been published, and I will read to the House one of the quotes from that report. It was a quote from my auntie Pūhanga Patricia Tupaea. She said: “Auntie Maria Tuo Hippolite (who was my grandmother) gave me the kōrero about the land we lost to the Crown. She had said that we had been promised free health, free education, and jobs in return for letting those settlers come and live on our land and that we would participate, not be excluded; that our mana would be respected. I feel great grief at the loss of our land and at the loss of our Treaty relationship. We have always acknowledged that the Pākehā European had great benefit to bring. We were, and are, willing to welcome them among us and share what we had but not to have our mana, customs, and laws disregarded and our land and resources taken. These must be restored and rangatiratanga recognised so that the partnership will resume on the right footing. Pākehā had a lot to offer us but we didn’t invite them amongst us to become our masters.”

I will tell the House a little bit about the Te Tau Ihu claims. One of those claims is about the Nelson tenths. With tenths, what normally happens is the Crown buys 10 sections, nine are sold, and one goes back to Māori. In the Nelson tenths, 10 sections were sold. Then another one was taken—not out of the 10; it was another one—and given back to Māori. So, in fact, Māori got elevenths. But the taking did not end there. Once that tenth—or eleventh, as it actually was—was put into a reserve the land kept being taken. In one particular case the report stated: “The Crown took land from the estate for public works in circumstances where it could have limited its taking to the leasehold and quite frequently where the work was not essential in the national interest nor was it essential that it be trust land that was used.” This is talking about public works.

I also quote from a Waitangi Tribunal report called “Public Works Takings of Māori Land in the ‘New ZealandGazette’ ”. It states: “The definition of what constitutes a public work has widened over the years … The Gazettes in the 1880s indicate that there were a number of major road lines and railways in construction that involved the taking of Maori land … Roads and railways, however, only constitute some of what was taken under the label public works. The sheer variety of purposes that land was taken for shows the very broad definition that ‘public work’ has had in New Zealand legislative history. The following list of the public purposes that Maori land was taken for and proclaimed in the Gazettes, illustrates the wide domain of the Crown’s powers to take land for public purposes: lighthouses, gravel-pits, police stations, hospitals, scenery preservation, school sites, native schools, electric lighting, wharf sites, cemeteries, landing reserves, stock paddocks, post offices, drainage systems, courthouse sites, public buildings, internal communications between lakes Rotomahana and Tarawera, a station for collecting rainbow trout ova, the construction of beacons and leading lights, model kaainga, waterworks, magazine reserves, abattoirs, bridges, recreation grounds, historic purposes, pilot and signal stations, travellers’ accommodation, public health purposes, and defence works. This demonstrates the immense variety of purposes for which land could be taken as a public work.”

I will also talk about public works as spoken about in the Ngai Tahu Ancillary Claims Report 1995. The Waitangi Tribunal said: “We turn now to discuss the manner in which the tribe’s reserves have been taken for public works purposes such as defence, roading, railways, scenic preservation, and recreation, as this has been a dominant issue in the ancillary claims.” It goes on to state that many times the lands were taken without notification to the owners—in fact, the only notification was in the Gazette when it was gazetted. The owners did not even know that their land had been taken from them.

“As important as the issue of notification is the Crown’s failure to return lands which are no longer required for the purpose for which they were originally acquired. A striking example of this was the acquisition of some 592 acres in 1964”—this is 1964, not 1864—“for the television transmitter site at Hedgehope. Less than one-sixteenth of the land so taken was required for the purpose. Rather than returning the surplus area, it was leased out for grazing and then set apart as State forest.” I wanted to point this case out because when members talk about how inconvenient this bill has been, or could be, I get really angry, and I am sure that other Māori around the country are just as angry. Members are talking about our land. Members are talking about our history. It was taken; it was not given back—592 acres were taken for one television transmitter. It is grossly unfair and the fact that it has not been returned is an even bigger issue of fairness.

People say that there are other forums that we can go to in order to get redress for this issue—they are talking about the Waitangi Tribunal; they are talking about direct negotiations—but the truth is that all we will get back is 1 percent of the value of what was taken from us. Even then there are letters to the paper and the public moans about it, such as a letter that I read in the Press just the other day saying that Māori were on the Treaty gravy train again. We are being made out to be the bad guys. I think it is grossly unfair that the members are not allowing this bill to go any further, and I have to say that we will not be stopping here. Kia ora.