Te Arawa Lakes Settlement Bill

DAVE HEREORA (Labour) Link to this

I again take this opportunity to take a call surrounding the Te Arawa Lakes Settlement Bill. The scope of the bill is indeed quite large in terms of iwi and hapū and their geographical interests, ranging from the settlement of Maketū, reaching around the bluff to Newdick’s Beach, following through to Otamarakau and down through to Te Kaha, as far south as Tongariro. It also takes on board the lakes in Rotorua and, obviously, this settlement is designed to hand the ownership of the lakes back to Te Arawa. I think it is important to acknowledge that area and the hapū that work within that area.

When we talked about the agreement that was struck back in 1922 between the Crown and Te Arawa, we also recall that during that time Te Arawa generously postponed claims to the lake beds during World War I and gifted a percentage of the payment to assist the Crown during the Depression. They repeated that gesture in support of our country during World War II. The Crown acknowledges the spiritual, cultural, economic, and traditional importance of the lakes and their resources to Te Arawa. The Crown also acknowledges, for example, that it failed to legislate for a significant number of fishing licences for Te Arawa in 1908, when it promoted legislation to acknowledge the problem of hardship. The introduction of exotic fish species also significantly depleted the indigenous species that Te Arawa depended on for food, hospitality, trade, and koha.

The preamble to the bill acknowledges Te Arawa’s historical and cultural affinity with the lakes. The transfer of the lake beds has guaranteed free public access for recreational activities, such as swimming, boating, fishing, etc., along with the preservation of the existing rights of commercial users and the owners of boatsheds and jetties. Although the 1922 agreement is not challenged by this settlement, this legislation will settle all of Te Arawa’s historical claims related to the lakes at any time between 1840 and 1922, including any claims related to the 1922 agreement.

Negotiations between the trust board and the Crown began in 1999. Throughout the settlement negotiations, both parties recognised that their mandate extended only to lakes-related matters, and that any settlement reached would not settle Te Arawa’s historical grievances in matters unrelated to the lakes claim. I acknowledge the hard work and effort made by all those in Te Arawa, who faced many obstacles and challenges, but preserved their patience and dignity. Without their hard work, it would have been much more difficult to reach such a significant point as we have reached with the bill that is here today.

Let us be very clear that the bill settles only claims made under the Treaty in regard to the lakes until 1992 and any issues that Te Arawa may have, either now or in the future, concerning the annuity provided to the trust board under the 1922 agreement. In doing so, this legislation clarifies that the Crown settlement offer does not settle any claims under the Treaty that do not concern the lakes or the annuity. Te Arawa maintain the opportunity to negotiate with the Crown for the settlement of their historical grievances under the Treaty in relation to land and any other matters unrelated to the lakes and the annuity.

The bill also involves the apology, which is equally as important as the financial redress, as it moves forward by recognising the mana of Te Arawa in respect of the lakes. More important, the bill commences the vital option of rebuilding the relationship between both parties. The apology is important to the Crown, because it acknowledges the breaches of the Treaty in respect of the lakes and extends an open hand, by way of an apology for those breaches, to Te Arawa.

An annuity redress is recognition of the fact that the Crown’s actions in respect of the lakes breached the Treaty. The annuity redress is additional to capitalising the annuity and settles any remaining issues post - 21 September 1992.

The cultural redress provided by the Crown in the bill is arguably the most significant aspect of the settlement. The cultural redress is provided to meet the cultural interests of Te Arawa in respect of the lakes, and it recognises their mana over the lakes. Significantly, the cultural redress recognises their close association with the lakes and provides measures to ensure their ownership of the lake beds and their continued involvement in the future management of the lakes.

Hon TAU HENARE (National) Link to this

We are talking about a Treaty claim. Although National would normally be in favour of a Treaty claim, I want to raise a number of issues with the Committee this afternoon.

The issue of major concern to my colleagues and me is that of mandate. The Te Arawa Māori Trust Board said that 93 percent of Te Arawa had said that they agreed with the Te Arawa Lakes Settlement Bill. That remark has put a few people crook, because there is strong evidence that that is not actually so. One would think that when the Te Arawa Māori Trust Board said 93 percent of Te Arawa agreed with the bill, they would point out that only 9,000 people are registered with that board. Out of those 9,000 people, only 4,000 took part in the process. That is only about 10 percent, because the going kōrero—the going story—is that between 40,000 and 60,000 people whakapapa to Te Arawa in the last census. Putting about the story that 93 percent of those from Te Arawa have agreed with the bill does not seem to me to be very good.

There are issues about ownership. We heard from Ngāti Whāoa that they were given ownership of Lake Ngāpōuri. However, this bill, in settling a Treaty claim, gives the ownership of Lake Ngāpōuri to the Te Arawa Māori Trust Board. Again, I have some major difficulty with that, and we will explore it as we go through the process.

The removal of the jurisdiction of the courts and the Waitangi Tribunal must be looked at. Not in any other bill—Treaty settlement or otherwise—has this happened. There were questions about the model. Submitters have said that the model was based on a Government template from the Office of Treaty Settlements, rather than on a specific, indigenous model from Te Arawa. Instead, the Office of Treaty Settlements said: “Here’s a template. We’ll give this to Te Arawa, and they can sign it off. Then we’ll shoot up the road and give it to Tainui, and they can settle their river claim based basically on what the Office of Treaty Settlements has come up with.” It is absolutely ridiculous.

The annuity question is of major concern to me. In 1922, £6,000 was set aside. No one has really been able to answer the question about what that money was for. Was it an out-of-court settlement, or was it because Te Arawa gave ownership of the lakes over to the Crown and the Crown gave back £6,000 as an annuity every year? When I asked a number of questions about this—what the Treaty breach was; what we were trying to fix up here—I was told that, lo and behold, the Treaty breach was because inflation had not been taken into account and there had been no rent review, or no review of the annuity on a yearly basis. I never read that in the Treaty. I did not know that it was a breach of the Treaty if one did not do that, for goodness’ sake! It does not talk about annuities in articles 1, 2, or 3, and it does not talk about inflation, or anything of the kind.

Hon MARK BURTON (Minister in charge of Treaty of Waitangi Negotiations) Link to this

I want to join the debate at this point, partly to encourage all members to ensure that they have actually read the preamble to the bill. It is a useful starting point for understanding why we are here. Some members have read it thoroughly, and others, perhaps, have not had the opportunity to do so yet. As my colleague Dave Hereora illustrated, the preamble lays out a historical account of this settlement, and it has formed an important part of the basis of the agreement between Te Arawa and the Crown.

I want to pick up on a couple of points that Mr Henare raised, and I think they were raised last week when the discussion on the preamble was commenced by Mr Brownlee. Indeed, on the question of mandate, firstly, the matters came up during the second reading, and, for that matter, came before the select committee. There has been considerable discussion around this question of the legitimacy of the mandate.

It has to be noted, perhaps first and foremost, that the iwi and hapū that opposed the Te Arawa Māori Trust Board’s mandate, in their submissions to the Māori Affairs Committee—and my colleague Mr Flavell referred to them in his second reading speech—generally appear themselves not to have any formal mandate on which they were acting in making their presentation before the committee. It is an interesting dilemma for members to consider, whereby a properly mandated body was being challenged, before the committee, in its proven mandate by a small group that had no mandate on which to act. I urge members to consider where the justice of claim to proper representation therefore sits, in that regard.

I stress that the mandate the trust board has developed has been properly accepted. The process was extensive and is a well-trodden path in other previous settlements. It includes: multiple hui ā-iwi—seven, I understand, in this case; proper submission of the deed of mandate to the Crown; a public consultation on that deed; proper consideration by a range of officials; and, ultimately, formal acceptance of the mandate. It is important that members who were not part of the select committee are aware that the Waitangi Tribunal relatively recently considered the question of the trust board’s mandate, in relation to application for an urgent inquiry by some of the members who also appeared before the select committee. I tell members that the tribunal upheld that the mandate was collectively determined appropriate to deal with the complex, overlapping customary interests in the lakes, and has been well-maintained. I emphasise that the mandate has been well-maintained throughout the extended period of negotiation. I have no doubt the mandate recognised by my predecessor the Rt Hon Sir Douglas Graham was appropriate for the negotiation of the settlement of all of Te Arawa’s claims to the lakes, and that it remains as strong today.

On the question of ratification, Mr Henare quite rightly visited that. It is an important question in any settlement, and is one that often comes up at this point in the process of considering legislation. Firstly, perhaps it is a little misleading to look at the bald census figures, and Mr Henare referred to some. I think the generally held view is around 40,000—that is the figure that is often said to refer to those who whakapapa to Te Arawa; some say a little more, and so on. But we should bear in mind a number of things: firstly, that figure is all of the people, including those under 18—of which there are a considerable number—who are below voting age. If we take off those, we are left with around 23,000 people of voting age in Te Arawa. So it is about 58 percent of that total.

Secondly, with regard to those who choose to register to participate in the process, well, that is a choice. So it is important that we are confident, and I think we can be. I think Sir Douglas Graham went through a very clear process to ensure his confidence, and I remain satisfied of it. There has been a full opportunity for all those who are eligible to participate, should they choose to. Of the 51 percent who did register to participate, 94 percent approved the settlement. That is a very high level of approval by any measure.

I reassure members, because it is a legitimate issue to raise, that the ratification rate for Te Arawa lakes is comparable with ratification rates in previous settlements. For example, the Ngā Tahu settlement results were almost identical to Te Arawa, with a participation rate of around 50 percent and an approval rate of 94 percent, as opposed to Te Arawa’s at 51 and 94 percent. Back in 1995 the Waikato Tainui settlement voter turn-out rate—in other words the participation rate—was only 40 percent with 65 percent approval. Yet, as we have seen, these two other examples have endured. I want to give that reassurance to members.

Finally, Mr Henare also raised the matter of the removal of jurisdiction of courts and the Waitangi Tribunal in this legislation. I reassure him, and other members, that that is normal and typical of what occurs in settlement legislation, because it is a necessary part of ensuring that the end result is full and final.

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

Tēnā koe, Madam Chair. Kia ora tātou, tātou e hui nei i tēnei pō. I did take the Minister’s advice and I read the whole lot of the preamble, very well. I read it a couple of times and tried to pick out a couple of points to refer the Committee to.

Firstly, I say there was probably a hope, over a hundred years ago, that the matter of the ownership of the Te Arawa lakes was fully and finally resolved. But then if we look at the track record, we see a little differently. So let us just look back at some of the detail. On taking the Minister’s advice, I found the preamble told me that in 1909 Te Arawa went to the courts to seek clarification of the ownership of the lakes. The Crown disputed the ownership issue. In 1912 the Supreme Court upheld Te Arawa’s right to have claims to the ownership of the lakes investigated in the Native Land Court. The Crown, according to the document, used stalling tactics—like not providing survey plans to the court—and that meant the application was not heard until 1918. In 1920 the Crown approached Te Arawa to negotiate a settlement of the claims to ownership of the lakes.

In 1922 Te Arawa and the Crown reached an out-of-court agreement on the ownership issue. That agreement had a provision for an annuity of £6,000 a year, and no provision in the agreement for the annuity to be reviewed. Over time the value of the annuity paid to the Te Arawa Māori Trust Board diminished to a point where it did not make any significant contribution to the affairs of the board. Of course, Mr Henare raised the issue in respect of inflation. Before and after the 1922 agreement, the Crown and local government assumed responsibility for regulating activities, including discharges, that impacted on the lakes. Those included the milling of native timber, farming, and the discharge of human effluent. The result of all of that is that Te Arawa are getting back a contaminated site. I should be happy; unfortunately, I am not.

That is a brief history in terms of what is in the preamble, so it is not surprising that of the 20 submissions on the bill to the Māori Affairs Committee, 18 were against it. I attended a number of the meetings held where people expressed concerns about the offer and the conditions of settlement. But as one of the lawyers put it—and in response to the Minister’s kōrero—to the people, if Te Arawa did not take the deal, they could not expect to have the issue considered again for many, many years. He said they should look at what had happened to Te Whakatōhea, and that if they did not play the game, they would go to the back of the queue. So let us just look at that. I think the Minister and Mr Henare have covered the issues about the participation rate and so on. I tend to agree with Mr Henare about participation, but I hear what the Minister is saying. The bottom line is that the deal put to our people was to take it or dip out. Of course our people were going to vote for the deal in that sort of scenario.

So what is the deal? There is cultural redress, with the transfer of the lakes to the new Te Arawa body, and also $2.7 million for financial redress and $7.3 million in annuity redress, which is around the capitalisation of the annuity payments provided for in the 1922 agreement and the settlement of any annuity issues. The deal also includes an acknowledgment of breaches of the Treaty and an apology.

Let us put the deal into a context. It is acknowledged by most commentators that settlements are always going to be around 1 percent of the true value of claims. It is acknowledged that all of these settlements are set against the Tainui and the Ngāi Tahu settlements, where the ratchet clause means that both of those tribal nations will get more money if the total set aside for Treaty settlements exceeds $1 billion. What is the magic about $1 billion? It is something called the “fiscal envelope”, which was rejected by Māoridom following hui up and down the country some 10 years ago. Is the fiscal envelope still alive? Hell, yes—$1.3 billion to be exact. That is the total set aside to be available for settlements between 1994 and 1996, from memory, to 2010.

To put that figure further in context, I will say $771 million is set aside in 2006 for NH90 helicopters, $200 million was set aside in 2003 for Tranz Rail, there was the Air New Zealand bail-out of $885 million in 2001, $620 million was set aside in 1990 for the Bank of New Zealand bail-out, and so on. We can add to that the notion around tourism—the fact that tourism is a major part of the Te Arawa make-up—an industry of over $200 million each year. So there are some huge inequities here, and those need to be considered throughout the length and breadth of our discussion.

The select committee identified some key issues that the Minister alluded to—for example, whether the Te Arawa Māori Trust Board had the mandate to negotiate on behalf of tribes. My answer would be that where tribes gave a mandate, yes it did. But there are questions regarding those tribes that are not affiliated to the trust board—we heard about those in the select committee—or those where no hui were held, such as Ngāti Whāoa. The Crown’s agenda has always been to get a settlement, so that the claimants do not come back. Did trust board members consult regularly with the tribes they represented? That is absolutely an internal issue, but it remains very questionable. Did the trust board consult in any ongoing way about the progress of all of the confederation? One would have thought that should be the case for the non-affiliated tribes. The answer, from my perspective, is that it did not consult them.

In respect of the Government’s models—as proposed in the preamble to the bill—the Te Arawa Māori Trust Board had a series of hui, it had a wānanga, and it decided on one model. It produced a document—it was called a “discussion document”—that had one model for consideration. The “discussion” was not actually about a choice of models but the acceptance of the model, because without a model there is no settlement. As reported in the select committee, the debate did not really take place. Had it taken place in respect of governance models, the likelihood would have been that possibly there would be more buy-in.

The explanatory note of the bill states that negotiations were “… conducted in good faith and in a spirit of co-operation and compromise:”. Unfortunately, I reject that, in terms of what I saw and experienced throughout the whole process. The second point is that “it is difficult to assess the loss and prejudice suffered by Te Arawa”. I also reject that; that is able to be done. The third point states: “it is not possible to compensate Te Arawa fully for that loss”. I think that is accepted in light of the thinking of the benefit of the whole nation, but one would have felt that we were a little closer to the mark if we had put up the amount set aside—as for all settlements. The fourth point states: “in forgoing full compensation”—and here is the catch—“Te Arawa intends to contribute to the development of New Zealand:”. I ask about Te Arawa’s contribution to the nation. As outlined in the document, they have given more than enough, in terms of going overseas and contributing by way of the tourism package for New Zealand. Surely we can match up there.

The final point states: “taking all matters into consideration, the settlement is fair in the circumstances.” That is an unfortunate statement at the end, because one would have thought that taking all things into consideration, first of all the amount could be considered in the light of the bigger picture and, secondly, from my perspective the process used to get us to that point needs serious consideration. The hope will be that we will contribute to addressing issues around Treaty settlements for the ones that come before the House in the future.

Finally, throughout this debate in the Committee stage, there will be a number of issues raised that I have set out on my Supplementary Order Paper 57, and I am sure they will contribute to robust debate. Kia ora tātou.

CHRISTOPHER FINLAYSON (National) Link to this

I have taken the advice of the Minister, the Hon Mark Burton, well before this debate on the Te Arawa Lakes Settlement Bill, and have read the preamble very carefully. The first point I want to make relates to clauses 13 to 19. It seems to me that this negotiation illustrates just how this Government has gone so slowly—not only on this particular negotiation, but on other ones. As Mr Flavell said, the preamble makes very bad reading. In 1989, when the Te Arawa Māori Trust Board entered into preliminary negotiations about direct negotiations with the Crown and then right throughout the late 1990s, up until 2006, negotiations were conducted at a very dilatory pace.

That was the first point I was going to make, but my friend Mr Flavell, who is one of the MPs in this place one should always listen to very closely because he is a very sensible member, has raised another matter that gives me cause for great concern, and that is the abuse of the process and the style of negotiations by the Government; it is essentially saying to Te Arawa: “Take it or leave it.” That seems to me to be nothing more than duress and I promise members that if that is, in fact, the style of negotiation that was employed by the Government and its lawyers in this case, this will not be an end to discord between Te Arawa and the Crown. I have rich experience of negotiations between Māori and the Crown over the years, and unless loose ends are tied up, unless negotiations are honourable, unless negotiators go the extra mile to ensure that there is a final settlement, things will come undone. [Interruption]

I heard Mr Paraone of New Zealand First interjecting, and I simply say to him that I cannot get over the fact that New Zealand First supports this bill—but the only thing that is consistent about New Zealand First is its inconsistency. That member is supporting the bill, but his bench mate Mr Woolerton is, in fact, promoting the Principles of the Treaty of Waitangi Deletion Bill. The bloodcurdling explanation in the explanatory note of Mr Woolerton’s bill obviously has no impact on his bench mate, because Mr Woolerton is seeking to have deleted from all settlement legislation of this kind the very clauses that that honourable member is seeking to have retained. That is utterly confusing and utterly inconsistent.

In dealing with the preamble and looking at the negotiation, the third point I want to make is on the question of mandate. Several members on the Opposition side of the House have raised mandate questions, and in my opinion the report of the select committee is deficient. I acknowledge that when one is dealing with settlement legislation, the scope for debate is very narrow and I refer members to the commencement of the select committee report—the English version commences at page 17. It states that we have very great constraints on us when we are looking at Treaty settlement legislation, but nonetheless one of the issues we can look at is the issue of mandate, and some very serious questions of mandate arise on this particular settlement.

A number of submitters have questioned the mandate of the trust board, and I hear what the Minister has said, that there was at least one application to the Waitangi Tribunal, which dismissed the urgent application. But I wonder whether the committee, which has a very real responsibility to look at these issues, has, in fact, analysed the evidence. Page 20 of the select committee report states: “The trust board does not believe that any changes to the settlement are warranted on the basis of the concerns of Ngāti Whāoa.” The trust board says that it did not really think too much of Ngāti Rangitihi’s point, and that Ngāti Rangitihi’s submissions were not really worth the paper they were written on. The Office of Treaty Settlements was satisfied that the trust board had made a commitment to involve all the iwi and hapū in negotiations, and Te Puni Kōkiri noted that the hui-ā-iwi were well advertised. But nowhere in the report, other than reciting the actual submissions on the part of various people, can one show that the committee itself was truly satisfied that the mandate process was secure.

PITA PARAONE (NZ First) Link to this

Tēnā koe, Madam Chairperson. I want to make a contribution to this part of the debate on behalf of New Zealand First. We in New Zealand First certainly had an issue about mandate, but as part of the select committee process we have to accept that the members of Te Arawa, particularly those who do not support this settlement, had the opportunity to participate in this process. If people choose not to participate, we cannot continually use the argument that the figures, in terms of those who participate, are not great enough to consider this settlement being advanced. Although we are disappointed at the figures and they could be higher, at the end of the day we have to accept that those who have chosen to vote have made their intentions clear.

Secondly, in terms of recognition of the Te Arawa Māori Trust Board, of course there will always be a dissenting voice. We have noted that in whatever settlements come before the House, there has been dissension amongst iwi members. As those of us who have been involved in serving our people outside of this House well know, 90 percent of the people whom we set out to serve are the ones who are our biggest critics. This bill is no exception.

It has been commented that no complaint about the process of negotiation has been expressed by the mandated body. That has been clearly stated, particularly before the Māori Affairs Committee. Someone has to make the decisions. In this case the Te Arawa Māori Trust Board is the mandated group that has made the decision to accept this settlement. I take on board some of the comments made by the previous speaker, Christopher Finlayson, in terms of how the negotiation processes may have taken place. As I hear more and more about the settlements, particularly those that come before this House, one has to be concerned about how that process is being conducted. However, at the end of the day the mandated group accepted the final negotiation.

I was very surprised that members of the mandated body have accepted the removal of jurisdiction. Although the Minister has given a good explanation as to why that clause is included, I should say that a lot of responsibility rests on the advisers of the trust board to advise their client to accept that clause. I noticed that the advisers were rather young compared with a whole lot of other settlement groups, and they will have to carry that responsibility on their shoulders should things go awry.

As the member from the Māori Party commented, people are happy about getting the site back, but they are not so happy about the contamination, and that issue will be addressed as we go through the bill. In response to the comment about references to the principles of the Treaty of Waitangi being included in this bill, I will certainly make comment on that on behalf of my party when we come to that part of the bill. Kia ora.

Hon TAU HENARE (National) Link to this

I understand the kōrero from e tōku nei tuakana, i tū ake nei i mua i ahau. [ my older brother who stood up just before me.]

I say to the Minister in the chair, the Hon Mark Burton, that I want to concern myself with recitals 13, 14, 15, 16, and 17 in the preamble. In particular I want to ask about this statement in the preamble: “(15) In December 1998, the Crown recognised the mandate of the Arawa Māori Trust Board to represent Te Arawa in negotiations for a settlement with the Crown. Terms of negotiation specifying the scope, objectives, and general procedures for negotiations were signed by the negotiators appointed to represent the Board in March 1999:” I am wondering whether the Minister can tell the Committee what the initial offer was, as opposed to the offer accepted some years later down the track. Why does the preamble further state, in recital 18: “The Crown and the Arawa Māori Trust Board initialled a draft deed of settlement on 15 October 2004. …”, which is some 6 years after the 1998 mandate that was recognised by the Crown?

I do not want to harp on too much about it, but this annuity business is still bugging me. How does it come to a figure that just so happens to be $7.3 million when the figure for cultural redress is $2.3 million, which makes a nice, tidy sum of $10 million? Interestingly, the figure is not $10.793.26 million, it is just $10 million, which leads me to believe—and I am not a conspiracy theorist by any stretch of the imagination—that the fiscal envelope is still hanging around. It is just that these days it is called the multi-year appropriations, or maybe something else. So I ask the Minister in charge of the bill, the Hon Mark Burton, what the story behind the annuity is. How was that established? How was the annuity calculated? Was a formula used to calculate the capitalisation of the annuity from £6,000 back in 1920-odd, to $7.3 million now, and how far out did that annuity go? If we were not having this discussion now, what would have been the annuity in the year 2020, starting from that period? What would it have been if it had been capitalised out from then, and backwards, as well?

I know that one can lead a horse to water but one cannot make it drink and that there will always be the difficulty, even in general elections, that not only do people have the right to vote but also they have the right not to turn up on the day and vote, and I take the point made by Pita Paraone. There are some problems with this settlement. It is not as clean or as smooth as a number of other settlements have been. I am very, very worried that 10 years or 15 years from now our offspring will be arguing about the same issue. If that is the case—and no one can see into the future—it will be a sad day in regard to what I consider to have been a bit of a rush job in terms of the template that has been used. I know full well that this same template is being used to knock Tainui into line in terms of its river claim. I would be very, very surprised to see any Tainui settlement being different from the one in front of us.

DARIEN FENTON (Labour) Link to this

I move, That the question be now put.

Hon MARK BURTON (Minister in charge of Treaty of Waitangi Negotiations) Link to this

Part 1 of the bill sets out the purpose, and the background to the settlement. It includes acknowledgments of the apology given by the Crown to Te Arawa, it records the intention of Parliament that the provisions of the bill are to be interpreted in a manner that best furthers the agreements expressed in the deed of settlement, and it defines various terms. It also provides for the settlement of the Te Arawa lakes historical claims and the Te Arawa lakes remaining annuity issues, and a range of other miscellaneous matters, such as perpetuities.

I will take this opportunity also to refer briefly to Supplementary Order Paper 56 in my name, which deals with a number of minor, technical matters. Some of these sit in Part 1, so I will take this opportunity to explain them all once, then be done with it.

The Protected Objects Amendment Act was passed by this House on Wednesday, 2 August this year. That Act amends the Antiquities Act 1975. Amendments to clauses 2, 11, and 57 of this bill, and a new clause 101, are required as a consequence of changes in terminology enacted by the Protected Objects Amendment Act 2006. Those changes will take effect on 1 November this year, and that is the reason this Supplementary Order Paper is necessary. The Protected Objects Amendment Act amends certain terms in the Antiquities Act. The old terms are used in all settlement deeds and legislation that include an antiquities protocol. The Protected Objects Amendment Act amends existing settlement legislation to reflect those changes, which is fine in dealing with legislation that has already been enacted, but does not, however, provide for changes to settlement bills, such as the Te Arawa Lakes Settlement Bill, that are currently before the House. It is expected that the Te Arawa Lakes Settlement Bill will be passed before 1 November; therefore, it needs to contain both the pre - 1 November references to antiquities and the post - 1 November references to protected objects. That is the purpose of my Supplementary Order Paper.

PAULA BENNETT (National) Link to this

I rise to speak on Part 1 of the Te Arawa Lakes Settlement Bill. I did not sit on the submissions process in the Māori Affairs Committee, and I have had limited input into this bill. I certainly have limited knowledge of it, in all fairness; it is just what I have read and what I have heard in the House over the last few days. I suppose what I would ask—and what I have been asking my colleagues—is whether Te Arawa want this legislation. No one could really answer me on that. In fact, I started to get different answers from all directions, and that is what concerns me the most. So I thought I would do what any good politician should do: I would go directly to the source.

I grew up in Taupō, so I know former students and other people who are of Te Arawa, and I thought I would talk to them directly. I was very good friends with Aroha, and she is now living back in that area, so I rang her. As a bit of an aside, when we were at school we were called “marshmallows” by our Māori teacher, not because of our shape—as some people may think—but more because we were considered to be brown on the outside and white on the inside. That was the way she put it. A lot of that was about being disengaged from the process, and feeling disengaged from our own iwi and our participation in it. As I talked to Aroha on Friday, it struck me that we talk about the mandate and about the opportunity to vote, but the reality is that many Māori feel disengaged from the process and from their own iwi, let alone from the Pākehā process, the Crown, and everything else. We have to take all of those things into consideration when we look at whether there is a mandate for something like this legislation to go through.

I am reluctant to go back to numbers, because I think this issue is much more about people. When we start to spout off numbers like 40,000 and 4,000—that sort of stuff—we forget that we are talking about people. The fact that such a small margin of people feel engaged by the process has to raise some concerns, such as whether Te Arawa actually want this settlement. Someone is just telling me that marshmallows are pink on the outside until they are toasted. I think my teacher did mean “MallowPuffs”, so there we go. But it is the same point. We all have our MallowPuff stories that we bring from school and still carry with us today.

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

Tēnā nō tātou katoa. In reference to Part 1, I point the Minister Mark Burton, and other members in the Chamber tonight, to a couple of the amendments on Supplementary Order Paper 57, which I have put forward. I will try to explain them, hopefully, fairly clearly.

The first point is to raise again that the notion of “full and final” is something that I suspect our people do not accept. Maybe it was thought in 1922 that that settlement would be full and final, yet here we are revisiting it. I note the point made by Mr Finlayson that unless settlements are done in a fair and equitable way, and people know what is going on, there will be a time when these sorts of settlements come back in the door. So I just put that out there as a prediction—that at one point or another that will happen.

The second point I raise concerns my amendments to clause 5. I hope the Minister will consider some of these things. Firstly, there is to be group called the Rotorua Lakes Strategy Group, which is to be made up of Te Arawa, the Rotorua District Council, and Environment Bay of Plenty. Under the bill, the involvement of Te Arawa in this group is limited to only two members. I do not know whether the Minister picked that up. Te Arawa is mentioned as having two members, but for the members from Environment Bay of Plenty and the Rotorua District Council no numbers are mentioned. It may be that their numbers are limited. I hope to address that further on in the discussions.

It is important to have all of the parties at the table. The district council must accept some of the responsibility for the state of the lakes, as should Environment Bay of Plenty as the current agency operating on behalf of the Crown. But surely it is appropriate that the number of representatives from Te Arawa, as the owner, equals the combined total of the representatives of both other agencies. How else can the owner ensure leverage to address the issues of cleaning up the lake? I am suggesting in my Supplementary Order Paper that the number of those representatives on that body equal the number of representatives of Te Arawa, and that that be stated. To put it another way, those responsible for the state of the lake could continue to fail unless this matter is addressed.

The other issue I mention is that there is actually nothing in the bill that sets out the responsibilities of the Crown. Let us make it clear: the Crown had the responsibility, the Crown stuffed up, the Crown acknowledges that it stuffed up, and the Crown is handing back a polluted site. These are the sorts of things that stick in the heart and soul of my people.

To that end, I will recommend the insertion of a new clause—and, hopefully, the Minister will consider this—stating that the total number appointed to the group by the Rotorua District Council and Environment Bay of Plenty must not exceed the number appointed by the Te Arawa Lakes Trust. That is part of a recommendation that will be put up later.

I just also point out to the Minister that the hapū and iwi are set out in schedule 2, and clauses 5, 6, and 7 talk about a review of the iwi and hapū. In terms of the management entity, there is actually some doubling up of hapū. So a review would be a very important move.

The apology in the bill acknowledges the part that Te Arawa has played in terms of Aotearoa. It states: “Te Arawa has honoured its obligations and responsibilities under te Tiriti o Waitangi …”. We have contributed to the war effort overseas, and we gifted portions of the annuity for the national good in the 1930s and 1940s. It also states: “Te Arawa has demonstrated a record of co-operation with the Crown …”, but the benefits back from the Crown were not realised. Finally, it acknowledges that Te Arawa have made a significant contribution to tourism and to the wealth of New Zealand—Rotorua in particular.

Also, the Crown acknowledges its actions—this is quite important. The contribution of the Crown includes the introduction of exotic fish; prosecution of Te Arawa people for fishing without licences; deliberate delays in providing survey plans and public maps to Te Arawa for Native Land Court hearings; and the failure to review the annuity paid to Te Arawa as a part of the 1922 agreement. The Crown acknowledges that the pollution and degradation of several of the lakes have caused a sense of grievance. It acknowledges its failure to deal with grievances in any appropriate way, despite petitions to the Government, tribunal hearings, and the like. These issues are actually documented in the bill. The bill sets out for the whole nation to see what the Crown acknowledges. So what is up with that? Te Arawa contributes to the nation, and what do they get back? Exotic fish, prosecution, and deliberate delays.

In relation to clause 13, although the Māori Affairs Committee considered submissions from a number of iwi, Ngāti Whāoa in particular were clear that they wanted three lakes to be withdrawn: Ngāhewa, Ngāpōuri—also known as Ōpōuri—and Tūtaeīnanga. Why? Because determination of the ownership of these lakes and the surrounding areas is still in debate before the Waitangi Tribunal. Yes, a report was written by Judge Fox regarding a hearing for urgency, and the Melvin report was produced, but I ask whether it would not have been better for us to wait for the process of law to run its full course before implementing this bill. Let iwi have the ability to take issues to court—the Waitangi Tribunal, in this case—allow the process of law to go to its nth degree, then make decisions from that. Including these lakes now may well result in further grievance down the line.

It is against this background that my Supplementary Order Paper takes these lakes out of the agreement. It omits clause 15, which refers to the settlement of the lakes claim being final. It will never be final, for generation after generation, especially as, as we note, our people revisit injustice.

Clause 16 talks about the jurisdiction of the tribunal to consider claims. This question was put by the select committee to the officials. It seems that the motivation is so that Te Arawa cannot relitigate issues around claims and settlements. So where are the safety mechanisms to ensure that the bill is enacted to its full capacity, and where do Te Arawa go to seek redress? These are some of the questions that need to be asked and answered. This is important, bearing in mind that the Crown, with the bill, acknowledges that it stonewalled Te Arawa’s attempts to get justice. Since 1922, it has taken 80 to 90 years to get a settlement. In one sense, our people do not trust the Crown.

These are important amendments that I hope the Minister will consider as we go through the Supplementary Order Paper process. I have taken the amendments fairly seriously in putting them in front of the Committee—in particular, in front of the Minister—to address some of the anomalies that are part of this bill.

METIRIA TUREI (Green) Link to this

I will take a brief call to comment on the Supplementary Order Papers on this part. The Greens will support the Government’s Supplementary Order Paper. We do not see any problems with it; it makes perfectly good sense to include the reference and issues around the Protected Objects Amendment Act. In terms of the Supplementary Order Paper from the Māori Party, we agree entirely with three of the amendments and will be supporting them wholeheartedly, and one we will not support. I will just explain what we are doing.

The one we will not support at this stage, unless something changes quite soon, is the omission of the Crown stratum from the legislation. The reason is that I am still very uncertain that by enabling Te Arawa to have ownership of the water body, that does not then provide some kind of legal responsibility over the quality of the water or what happens to it. Unless I feel very certain that no further legal issues might arise from that ownership, I think it is better to leave that out at this stage. I know that it is controversial and I understand entirely the desire to return the water body to Te Arawa, but I am just concerned that I do not have enough information about the legal consequences of doing that.

So the Green Party will not support that Māori Party amendment. But we completely support the other amendments, particularly the change to clause 13. At the Māori Affairs Committee I asked officials from the Office of Treaty Settlements why they were including Lake Ōpōuri in the settlement and why they were giving it to the main group instead of to those who had provided to us in the select committee a vast array of information about the lake’s legal ownership and the trail of it. Those people gave us incredible information, and the officials said that the Office of Treaty Settlements owned the lake now, that it was negotiating with the main group, and that it was going to give the lake to them. That was it! There was no recognition at all of the history of the struggle of this family and its hapū to have that lake returned to them, even though they had a significant and detailed paper trail showing their legal ownership over time.

I thought the approach from the Office of Treaty Settlements was disgusting. It simply was not interested in pursuing the matter and making sure there were ways of dealing with the ownership issues around specific lakes for specific hapū. There were other ways of doing it. Hapū groupings could have been set up. If there were a number of hapū who had connections with the lake, a mechanism could have been provided for them to have more control over what happened to it. That would have recognised everybody’s rangatiratanga and made the whole process so much easier. Also, it would have meant that those who were directly or more closely associated with a particular lake could have had that mana recognised. But there was no system for doing that, and it was obvious that the Office of Treaty Settlements had not bothered to explore ways of doing that.

It has meant that this particularly hapū, who have a paper trail showing their ownership and their struggle to get that ownership recognised, are once again dispossessed of their property. The whole point of treaty settlements is to reverse that dispossession. It is a crazy situation that arises out of a settlement process that does not understand what it means to provide restitution to the victims of a historical wrong. The process is actually set up to provide the Government with the easiest possible way out. It is a process that looks good from the outside and gets complaints from the public for being too generous at 1 percent return on the lands that were lost. The Government wins—it looks great for the Government—but Māori miss out again and again.

The reason we are very pleased to support the amendment to omit clause 15—the full and final settlement clause—from the legislation is that it is a lie. It is not full and final. That is the point. It cannot be full and final until there is a decent process that really and truly recognises what is happening for iwi and hapū in their struggles to get these settlements through. This settlement claim is nearly 10 years old. It is now nearly 10 years since Te Arawa went to the tribunal. They have been fighting through this process for 10 years. They have had to spend thousands and thousands of dollars and it has taken hundreds and hundreds of person hours. People die in the process of trying to get these settlements through. And that is considered fair? They are supposed to be happy with what they have got, and every generation from now on is supposed to say: “Well, that’s it. It’s full and final. It’s what the legislation says. It’s fair in the circumstances. That’s all right.” It is not OK.

Hon MARK BURTON (Minister in charge of Treaty of Waitangi Negotiations) Link to this

I want to pick up on one or two of the points made by the previous two speakers. Mr Flavell outlined the amendments on Supplementary Order Paper 57 in his name, and—as I did in respect of Supplementary Order Paper 56 in my name—covered the effects of it across the bill. I will deal with the impacts of the Supplementary Order Paper at the various stages of the bill and with the points raised by the member who has just resumed her seat.

The first point I want to remake to the Committee is that the deed of settlement and this bill have been negotiated and agreed to in good faith with Te Arawa’s mandated negotiators. The member who has just resumed her seat quite rightly laments those who have died along the way, in the 10 years that this process has taken. People have spent their life’s work—and life’s blood, in some cases—to get to this point. For others who do not have that depth of background and commitment to then flippantly presume to usurp the authority, the mana, and the mandate of those people—a mandate, I repeat, that is upheld by the tribunal—and at a whim to replace their work with a Supplementary Order Paper in this Committee is, I think, an insult. I think it undermines the integrity of the process—the integrity that the negotiators upheld it as having. I think it is a serious matter.

I know that the intent of the member who has just resumed her seat is absolutely serious, and that she is highly motivated to get a fair result. I do not question that, but I ask her to consider whether one should usurp those who have worked for 10 years on the process and who have earned the right to negotiate and have their mandate renewed and upheld over and over again, in many cases at huge personal cost to themselves. I think few people will ever understand the cost, not only in dollars or in time but also in the effect on those people and their families and whānau. In my view, we owe it to them to treat the integrity of this process very carefully. I believe that the process has been one where everyone has come to the table to try to get a fair and proper result.

The Supplementary Order Paper that Mr Flavell proposes would change fundamentally the agreed settlement. For that reason I cannot, and the Government cannot, support it. As I have tried to illustrate, it is entirely inappropriate to undermine in this way those who have the mandate, and I think that on that basis alone the amendments could be rejected. In terms of Part 1, Supplementary Order Paper 57, dated 6 September, seeks to amend clause 5. That clause, in fact, simply outlines the content of the bill and has no actual bearing on the interpretation or application of the legislation. It therefore has no material value. The Supplementary Order Paper also proposes amendments to definitions in clause 11 that are consequential to a proposed amendment to Part 2. I will deal with that when we get to that point in the bill.

In terms of clause 13, I think the Supplementary Order Paper proposes that any claims in relation to three of the lakes should not be settled. I repeat that the trust board has upheld and renewed the mandate throughout this process in relation to all 14 of the lakes on behalf of all Te Arawa. The Supplementary Order Paper proposes to remove from the settlement, with no apparent authority from anyone, the claims in relation to three lakes named on the Supplementary Order Paper. The settlement was ratified by the Te Arawa claimant community, and I think it would simply be wrong of this Committee to vote for a non-mandated challenge rather than a properly mandated process and a properly mandated ratification process.

Finally, the Supplementary Order Paper also proposes that clause 15, which provides for the full and final settlement of Te Arawa’s claims to the lakes, be removed. I simply ask how we can possibly ever hope to ever have a full and final settlement if this Committee, at its whim, sets about removing from this legislation a properly negotiated full and final settlement negotiated by people who have the mandate and the mana to do so. I urge members to give serious consideration to the issue of who holds the mandate to negotiate. If those people reached a proper and fairly negotiated end result, then who has any demonstrated mandate to challenge it?

Hon TAU HENARE (National) Link to this

I do not want to jump in and support the Greens too much, but I do not believe for a minute that my colleague was either usurping or even insulting when she spoke in terms of wanting more for the people of Te Arawa. But hoi anō, he take anō tērā. [ that is another matter.]

I want to ask members to look at clause 5(4)(c), relating to the rights and obligations attaching to ownership of Te Arawa lake beds. I ask the Minister whether there is an issue about liability—when the bill comes into force—if, for example, I am out on the lake one day and happen to have a wee bit of an accident. If that accident is not of my doing but of the owner’s doing—for example, if something jumps out of the water—

PITA PARAONE (NZ First) Link to this

I commence talking to this part of the Te Arawa Lakes Settlement Bill by making reference to the area of definitions. I specifically refer to the “Cultural Redress Schedule”, and say that I think the definition there is quite clear. What is not there, and what I would have thought might have been included—and is something that could be considered for future settlement bills—is the definition itself of cultural redress, in that clause covering definitions. Although some of us know that cultural redress means the recognition of traditional, historical, cultural, and spiritual association, I think it might have been helpful to include that definition in the legislation.

I refer now to clause 13, and in particular to subclause (1)(a)(i) where reference, after the mention of “settlement date”, is made to the fact that the claim “is founded on a right arising—(A) from te Tiriti o Waitangi (the Treaty of Waitangi) or its principles;”. I want to say, straight off, that New Zealand First supports the process, and it supports the outcome, therefore we will support the legislation. However, I want to respond to the comment made by Mr Finlayson on behalf of his party. Of course New Zealand First is disappointed that this reference to those ill-defined principles—in fact, undefined principles—is included. New Zealand First says that our bill referring to the deletion of the principles of the Treaty of Waitangi, when passed, will now have to include this legislation. I just wanted to make that point, and although it might seem that members within New Zealand First are at odds with one another, I tell members we are clearly not; we are just disappointed that references to those principles are included in this legislation. It is just another bill that will be affected by our deletion bill when it becomes law.

In relation to Supplementary Order Paper 57, proposed by the Māori Party member, Te Ururoa Flavell, I focus on clause 11 and the definition of “Crown stratum”. His Supplementary Order Paper suggests that the entire definition should be omitted. The effect of that would be that the Crown would retain no ownership interest in the lakes, but I think the bill’s whole purpose is to vest just the lake bed and all those attachments—other than the water and the air above the lake bed—in iwi, and to leave what has been described as the Crown stratum to the Crown, which will hold it, of course, on behalf of all New Zealanders.

Hon MARK BURTON (Minister in charge of Treaty of Waitangi Negotiations) Link to this

I want just to pick up on a couple of points that have been raised. I want to give Mr Henare reassurance about his concern over liability of Te Arawa for persons having an accident. He did not quite explain what might cause the accident, but in general terms an accident occurring in and around the lake would be subject to the normal principles of law. Of course, thankfully we still have a Labour Government, and therefore we still have accident compensation. So any accident or injury incurred would be well looked after by the accident compensation system.

The serious matter that the member raised, and I think the National member Mr Finlayson raised this during the second reading, concerns questions around references to the principles of the Treaty of Waitangi. I think it is important to remind members that under the Treaty of Waitangi Act 1975 the tribunal is charged with making recommendations on claims relating to the practical application of the Treaty, and determining whether certain matters are consistent with the principles of the Treaty. In the interests of finality, this bill needs to refer to the principles of the Treaty to make clear that the Waitangi Tribunal and the courts will no longer have jurisdiction to consider relevant claims in the future. I remind members again that this is an approach that has been taken consistently. Members can go right back, if they wish, and reference the National Government’s Ngāi Tahu Claims Settlement Act 1998 for a case in point.

CHESTER BORROWS (National—Whanganui) Link to this

I have a number of concerns in respect of this bill. The main concern is around mandate. Mandate is something that has been raised consistently throughout discussion on this bill, and it is an issue that should be addressed. The need for a robust mandating process is so that in the future things cannot be resurrected or do not explode again. There is a saying about burying things dead, and burying things alive. When we bury things alive, they fester away and come back to bite us. In Taranaki, for instance, we deal with a thorny issue quite often. It is called a boxthorn hedge. When people get pricked by a boxthorn hedge, they have to dig out the prickle and deal with it, then and there. If they do not, it lies dormant under the surface of the skin for some time and they think the whole problem has gone away, then, one day, it explodes and there is pus and mess all over the place to be dealt with. The problem with the lack of a robust mandating process in respect of this issue is that when it explodes again, it will be Māori who cop the flak for the lack of will to deal properly with this process.

We have heard from other speakers in the Chamber today about those who are unhappy with some of the resolutions that have come out of this. One of them, particularly, is Ngāti Whāoa’s claim on Lake Ōpouri. That claim is currently on the table. It has not been dealt with. It deals with part of the settlement of this proposal, and is one that is bound to come back. It is interesting to note the history of the Government’s lack of listening to Māori on this issue. We heard my colleague Te Ururoa Flavell talk earlier about the 1922 process. It was interesting, and I think quite ironic, that even the first time this matter was raised in this sitting, last week, we witnessed the situation where strings were being pulled and process was being abrogated to try to drag this out, because it did not suit the Government to debate it at the correct time as laid down on the Order Paper. Even then, it was being dragged out. Things have been jiggery-poked around to try to have them the Government’s way.

I find New Zealand First’s response to this quite amazing. Its members have said, and it was said earlier by my colleague Pita Paraone, that they disagree with a big chunk of the bill, but they will vote for it tonight, on the basis that if New Zealand First is successful with another piece of legislation, it will pull this legislation to bits again. Where is the credibility in that? Where is the integrity in a system that allows that to happen? I find that incredibly difficult to understand. Another thing that I find difficult to understand is the response of the Minister Mark Burton when asked some difficult questions, again by the honourable member Te Ururoa Flavell. In my paraphrased version, he came out with: “Well, who the hell are you?”.

The fact is that when we have a close look at the separation of powers—and this is something I spent some time on a little while ago—we see that Parliament is at the top of the pyramid, and the executive comes under that. So who the hell are we? We are the people who get to ask what the hell is going on. There is nothing wrong with holding a system to account. In fact, that is what we are here for; that is why we are elected to be in this House—to ask those questions. If members do not like the question, then they should not slag off the person asking the question. They should give a considered response that will not see, in years to come, Māori being able to put up their hand again and say that they were not happy with this process, that they flagged that several times during the formulation of the settlement process, that they raised it time and time again, and that it was raised in the House. The punishment for their doing that is to be branded by the rednecks as never being happy, and the issue is called a Māori issue, as opposed to a New Zealand issue, a governance issue, a settlement issue, or the process of trying to move forward as one nation.

I ask New Zealand First to have a look at where it is coming from, in relation to the principles of the Treaty of Waitangi. The stance those members have taken appears to be inconsistent. There seems to be a weird sort of response to some of these questions; it seems when their leader is out of the country they do not know exactly how they are voting on any particular issue at any one time.

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

Tēnā koe, Mr Chairman; nau mai ki te Whare. I want to take just a brief call to respond to a couple of things that have been put before the Committee this afternoon, particularly relating to this part, although there will be time again later on to have another shot.

I say that most of Te Arawa—in fact, most of the nation—would probably want to have settlements. Why? So we can move on, like everybody else wants to do. But as somebody who lives in the electorate that covers Te Arawa, I respectfully tell the Committee that I understand fairly clearly the outcomes of the discussion today. I live in the area, I know the people, and some of them know me. I know the marae; I am there. So I respectfully ask that people understand that this issue is not just about me; it is about Te Arawa. In that light, the discussions that have been heard with regard to this bill have hit at the heart not just of me but of Te Arawa. Why? How do I know that? It is because Te Arawa, in terms of claims, like most other iwi, are split smack down the middle. Why? It is because people have not necessarily had the information to be able to assist them. As my colleague Mr Borrows from Wanganui has said, our job is to raise those issues.

I want to make a couple of points to the Minister. Firstly, I would have thought, and I can understand, that statements like “properly negotiated” imply there is a level playing field. I tell the Minister that the people I have spoken to, some of whom have been negotiators not just on one Treaty settlement but on other settlements, are fairly clearly of the mind that there is no negotiation. They say they are told that here is the deal and they can take it or leave it, but that if they do not take it, they will go to the back of the queue. Is there any justice in that? I would suggest not, despite the fact that the member may well be an honourable person and the officials may well be honourable too.

We heard from the officials, who came in the door and told us of the parameters within which they had to negotiate. I ask the Minister this: is 1 percent fair, under anybody’s terms? Do Te Arawa want the whole world? No, we do not. Could Te Arawa accept 50 percent? Maybe. Or 20 percent? Maybe. But 1 percent? Give me a break! That is not how it works. So “properly negotiated” is not how I see the settlement, with all due respect. Those negotiators talked about guns to the head and that sort of stuff, and that is disappointing. I just wanted to make that point.

Second, in terms of my Supplementary Order Paper 57, here is the rub: the bill states that Te Arawa have two people on the Rotorua Lakes Strategy Group. As to the rest of the members, there is no mention of anybody else except the groups—no numbers are specified. One has to be suspicious about that, so I raise that issue.

In respect of Ngāhewa, one of the three lakes referred to on Supplementary Order Paper 57, again we all followed the process of law. The process of law is in front of the Waitangi Tribunal. Why does the Government not let the process of law finish, and then allow the process in this settlement to carry on after that? But here we have three lakes being put straight out while issues to do with them are in front of the Waitangi Tribunal. That is all that is being asked—for the Government to consider those sorts of issues.

As to whether the settlement is fair and equitable, I have talked about that and I suggest that, no matter what the member from New Zealand First says—eh, Pita; 1 percent—our people will come back. They came back 80 years on from 1922, and here we are today. They will come back again. It will be not just Te Arawa but others who come back. What we have to try to do is to say that, on the one hand, we want settlements and, on the other, we want to move on, so let us work it out and let us work on other things. Let us think outside the box about how we can achieve a settlement, maybe by making time payments. But when we match this settlement up with all the figures I gave in terms of the preamble, we see it simply does not match up. Although I accept that the settlement was negotiated to this point in time, I see no problem with putting up new ideas and Supplementary Order Papers to address things that may be simple, but, in fact, that mean a hell of a lot in the context of the bill.

Two people are put up for Te Arawa—that is all. No numbers are specified for anybody else. Another group could have 10, for that matter. All I am saying, as an example, is that we should put up an equitable number from the groups involved as a way of moving forward, because those sorts of things will come back to bite.

Hon PETE HODGSON (Minister of Health) Link to this

I move, That the question be now put.

CHRISTOPHER FINLAYSON (National) Link to this

I want to raise a couple of new matters, and they are important. Part 1, as we know, deals with the purpose of the Te Arawa Lakes Settlement Bill, and with acknowledgments, the apology, various interpretation provisions, and miscellaneous matters. I want to say something following on from Mr Flavell about Subpart 3, “Settlement of claims”.

When we look at clauses 15 and 16, we might think that these boilerplate provisions would make it tolerably clear that the settlement was full and final, and that any attempt to relitigate would fail. But I can tell the Committee now that these clauses can be easily got round, depending on the facts of the particular case. These clauses will not get in the way, 20, 30, or 40 years hence, of the disgruntled would-be claimants having their day in court or their day in the tribunal. That is why it is very important not simply to enact boilerplate provisions but also—as I said in an earlier contribution—to really try to deal with the substance of the issue, which is to sort out all these problems of mandate and these lingering problems. Otherwise, these problems will come back. I have had experience in getting round jurisdictional clauses, and I am sure that Mr Chauvel has, too. At the end of the day—depending on the facts—it is a piece of cake.

Can I raise a couple of definitional issues. I must express my amazement at the approach of New Zealand First. As I understand those members’ comments about comments I have made about the principles of the Treaty of Waitangi, they will support these provisions now, only to have them deleted later on. That is a weird approach, if ever there was one. It can be described only as absolute humbug. These clauses—and I particularly refer to clauses 7(2)(d), 7(4), and 9—are, in my opinion, reasonably easily able to be remedied. In my first reading speech I outlined about nine key principles of the Treaty of Waitangi, which had been derived from cases and brought together by the Waitangi Tribunal and by academics over various times. I think it should be very easy to remedy those clauses. For example, if one takes clause 7(4), we have an acknowledgment by the Crown that it failed to review the annuity paid to Te Arawa as part of the 1922 agreement, and that that was a breach of the principles of the Treaty. Well, what principle? At one stage when I was talking about this matter, one of the Associate Ministers called out: “It is the principle of protection.”, and I asked why the Government would not put it in. So it is a reasonably straightforward exercise to spell out with some specificity what principle of the Treaty of Waitangi we are talking about.

CHARLES CHAUVEL (Labour) Link to this

I move, That the question be now put.

GERRY BROWNLEE (Deputy Leader—National) Link to this

I raise a point of order, Mr Chairperson. Due to the duties I have as deputy leader of our party and also as shadow Leader of the House, I have not been able to be in the Chamber until this point. I am the Māori affairs spokesperson and the spokesperson on Treaty issues, and I would appreciate the opportunity to make a short contribution on the Te Arawa Lakes Settlement Bill. [ Interruption] I know that our friend over here, Chuck Chauvel, wants to shut everybody out, but I just implore you, Mr Chairperson, to perhaps think about it. I know that you have almost jumped the gun and got the vote under way, but not quite.

GERRY BROWNLEE (Deputy Leader—National) Link to this

I was not seeking leave; I was acknowledging your ability as the Chair, Mr Chairperson, to make a decision. The text of acknowledgment in clause 7(1) of the Te Arawa Lakes Settlement Bill states: “(1) The Crown recognises that Te Arawa value the Te Arawa lakes and the lakes’ resources as taonga. The Crown acknowledges the spiritual, cultural, economic, and traditional importance to Te Arawa of the lakes and the lakes’ resources.” I think that that statement begs the question, of who Te Arawa are. Further, it would ask the question, if this is to be a full and final settlement, whether we do not have to be certain that the overwhelming majority of Te Arawa are happy with the settlement. And does that not then, in turn, cause us to look at the mandating of those who have been in negotiations with the Government?

Firstly, I think those who have been in negotiation have acted honourably and in the belief they were doing their best for the people who had put them there. However, we still go back to the point that there were 20 submission on the bill, and of those 20 submissions 18 were opposed to it. That group of 18 submitters all came from Te Arawa. This afternoon we have heard Te Ururoa Flavell making it very clear that inside Te Arawa there are some significant objections to this particular settlement. So it would be useful for the Minister to stand up and tell us what the mandating process was.

Hon MARK BURTON (Minister in charge of Treaty of Waitangi Negotiations) Link to this

Part 2 provides for the vesting of the Te Arawa lake beds and the rights and obligations of, and limitations on, ownership. It includes clauses relating to the protection of recreational activities—which is an important part of this settlement—public utilities, existing structures, and existing commercial activities and clauses relating to the consent process for new structures and commercial activities.

In relation, in particular, to the issue of access—a matter that came up today and during the second reading—a number of members expressed concern that the settlement separates the lake beds from their waters. If I could perhaps explain, the beds of the Te Arawa lakes are transferred to Te Arawa and the water column and airspace, known collectively in this bill as the “Crown stratum”, remain vested in the Crown. That was in large part done to protect the public interest, as it enables the Crown to have an active role in determining what happens on, and in, the lakes that are subject to the settlement. In negotiating the ownership provisions of the settlement, Te Arawa and the Crown agreed that the Crown retaining ownership of the water column and airspace above the lake beds was appropriate and enabled the interests of both the public, as represented by the Crown, and, equally, Te Arawa to be met.

Hon TAU HENARE (National) Link to this

Clause 22, “Status of conservation areas”, states: “Any part of a Te Arawa lakebed or the Crown stratum that is a conservation area under the Conservation Act 1987 ceases to be a conservation area.” Can the Minister in the chair, the Hon Mark Burton, tell us whether that means the conservation estate will be used to settle claims. If so, are we setting a precedent for the Crown to use the conservation estate as a redress tool? I would like him to look at that.

Also, clause 23 is about the vesting of the lake beds. Clause 24, “Freehold estate in lakebeds inalienable”, states: “(1) The Trustees of the Te Arawa Lakes Trust must not—(a) dispose of or alienate the freehold estate of all or part of a Te Arawa lakebed; or (b) grant or create a mortgage or other charge in or over all or part of a Te Arawa lakebed.” I am not suggesting for one moment that Te Arawa would do that, because they worked very hard to get them back—for 80-odd years. But should they not have the same rights as you and I do, when we own fee simple title to a property? I am allowed to sell my property; I have ownership of it. Do we need to tell the other side of the deal that they are not allowed to do that? Is there any reason why that provision is in the bill?

Clause 26 is entitled “Limits to obligations for weeds attached to lakebeds”. Clauses 25 and 27 also relate to that, and I understand them, but who is responsible for cleaning up the lakes? Is it Environment Bay of Plenty, the Rotorua District Council, the Government, or a new entity—one made up of the Te Arawa Lakes Trust, Environment Bay of Plenty, and all the other organisations? How much will the clean-up cost? Or are we there yet?

The next question to the Minister may seem facetious, but it is not. Clause 30, “Boundaries relating to Te Arawa lakebeds”, states: “(1) There is a moveable natural boundary between a Te Arawa lakebed and any adjoining land …”. Does that mean that if erosion occurs on the boundaries of a lake, that land will become part of the lake; if so, what happens when there is an earthquake, as is wont to happen in the Tarawera area?

Clause 35, “Liability”, states: “The Trustees of the Te Arawa Lakes Trust are not liable for an existing structure for which they would, apart from this section, be liable by reason of their ownership of the Te Arawa lakebed …”. So what about a new structure?

I turn to clause 41, concerning new commercial activities and new structures. That clause is probably the one that leads the National Party to say we will not be supporting the bill. Basically, it adds another level of administration, or, I suppose, the power of veto is in the hands of not only those who look after the Resource Management Act but also now the Te Arawa Lakes Trust. It will have the power of veto over new commercial activities and new structures on the lakes. We are not happy about that. If we are to have a society where there is one law for all and we all come under the Resource Management Act, then let us have that situation. If somebody wants to build a new structure on a lake, does this legislation mean there is to be a regime whereby that person first has to get approval from the lakes trust? When approval is given for that structure, does the person then have to toddle off to the district council to try to get a resource consent for it? Or is it vice versa—which comes first? That is what we are not happy about. We would rather see a situation where anybody who is building a new structure or setting up an enterprise or commercial activity on a lake has a one-stop shop. And that, obviously, would be the Resource Management Act—the same as for any other normal person in our society. That is really the crux of the matter in terms of one of the major issues that we have with regard to this bill.

If the Minister could address some of the points—not all, but some of them—that I have made, I would appreciate it very much.

PAULA BENNETT (National) Link to this

I rise to speak on Part 2 of the Te Arawa Lakes Settlement Bill and I have some questions for the Minister, the Hon Mark Burton, as well.

As I read through the bill, I was struck by clause 24, under “Rights and obligations of ownership”, in the same way as my colleague the Hon Tau Henare was, regarding the rights of the Te Arawa Lakes Trust over their own property. The legislation is a full and final settlement and there it is, but then all sorts of holds are put on the trustees of the Te Arawa Lakes Trust. The bill states that they must not “(a) dispose of or alienate the freehold estate of all or part of a Te Arawa lakebed;”. I can see some fairly obvious reasons for that—it means it is still available to the public, and perhaps opens up that control for everyone to use. But it does not make sense to me that the trustees do not have the same rights as everyone else does over ownership so that they can do as they so wish with their property. I would be interested to hear from the Minister on that. I may misunderstand the issue, having come in and read the law as it is, but then a lot of people will do that.

I also have questions around the fact that trustees may grant “a leasehold estate in all or part of a Te Arawa lakebed for a term of not more than 35 years,”. I would have thought it was up to them how they held a leasehold and what they did with their own land, if this legislation is to go through.

I also want to talk a bit more about “Limitations on rights and obligations” in clauses 25 to 27. The media have raised a lot of concern around the issue of the lakes not being handed over in the same state they were in 80 years ago. As someone who comes from the area, I certainly can see the changes over the last 20 or 30 years. I have questions around that issue and what it means. If the trustees are not responsible for the control or removal of weeds, for example, then there are so many questions around who actually is responsible. I would be interested to hear from the Minister about this because the answer is not in the legislation itself, so there is some concern as to what sort of deals have been done to have those things looked after and what sort of accountability there is to ensure those things are followed up for all the people who are using the lakes.

I also did not understand and needed help with the issue of recreational activities in clause 32. I wonder if the Minister could explain that to me a little bit more. Is the Minister saying that everyone will still be able to do those activities at the lakes or will they now be just for the use of Te Arawa? Reading through clause 32, I did not feel that the legislation was as clear as it could have been. I suppose it is too late for the Minister to look at an amendment, but I could look at one that made that clause a little clearer as to “swimming, boating, water-skiing, and fishing, to the extent that those activities are recreational;”. Even looking at clause 40, I could not work out if those activities will still be open to everyone at the same level that they currently are, and under the same protections and laws, or whether they will be changed because the lakes will be under trust ownership, and the trust would have more say as to who could use the lakes for recreational activities.

That raises another issue about how the trust will work in with the local bodies on the laws that govern the area and what is acceptable for public use and what is not. Obviously, there will have to be changes, because what the public and the council think is acceptable use of the land may not be considered acceptable usage by Te Arawa once it goes back into their ownership. They may wish to make some considerable changes to the lakes and the lake beds and how they are used, how they are fished, and everything else. I would be very interested in hearing how those changes will come about and what difference that could make to the public that have been using the lakes for—in many cases—generations and for quite some lifetimes.

I would be most interested in hearing answers to those. Thank you.

Hon MARK BURTON (Minister in charge of Treaty of Waitangi Negotiations) Link to this

I speak in brief response to one or two of the points members have made. First, Mr Henare raised a question under clause 30(1) about the “moveable natural boundary” issue. I think the answer to his concern is contained in clause 30(2) and that is that “the boundary is governed by the applicable common law rules of accretion, erosion, and avulsion.” It was a fair concern, but I think it is taken care of.

Perhaps the more substantial issue that he raised—as did Paula Bennett—relates to the environmental degradation of the lakes. I think it is important to stress here that Treaty settlements are not intended to address environmental degradation and pollution. The environmental regulatory regime that exists at the local and national levels will continue to apply, post-settlement. Therefore, any obligations upon local and central government to clean up the Te Arawa lakes that exist before the settlement will continue to exist post-settlement. That point is actually explicit in the bill—that Te Arawa will not be liable for any contamination that exists. I think the Rotorua Lakes Strategy Group that is created herein will play a valuable role in, and make an important contribution to, improving the integrated and sustainable management of the lakes. Again, it is really clear that the group is not charged with the responsibility for cleaning up the lakes; that responsibility lies with local and central government.

To that end, the Te Arawa lakes water quality problems are being dealt with through the Rotorua lakes protection and restoration programme developed by Environment Bay of Plenty, Rotorua District Council, and indeed, Te Arawa Māori Trust Board. Under that programme, I say to members, action plans are in place to address water quality problems on several lakes. In addition, the Ministry for the Environment has committed funding and is continuing to work with its partners Environment Bay of Plenty, the Rotorua District Council and Te Arawa to clean up Lake Rotoiti.

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

Kia ora, kia ora anō tātou katoa. I want to pick up a couple of points in this particular part of Te Arawa Lakes Settlement Bill and put them for the Minister, the Hon Mark Burton, to consider.

The first one is the definition of Crown stratum. It was covered partly in Part 1, but I want to raise it here, even though some of my discussion has been ruled out of order. That is all right, I will leave it there and move on to Part 2, clause 23. Clause 23(2) states: “The Crown retains the ownership of the Crown stratum.” That is the statement in the bill and the Minister, in his explanatory note, has added on: “as Crown land under the Land Act 1948”. The question to the Committee and people listening at home is, how the Crown can retain ownership of something that it has not proven ownership to in law. How can the Crown claim something that it has not proved ownership to in law? And what is the reference to the Land Act of 1948? There is no mention whatsoever of the Crown stratum in that Act or, in fact, in any other current legislation.

According to our research, it is defined for the first time in the Te Arawa Lakes Settlement Bill. So here we have this notion of a Crown stratum that is, all of a sudden, being defined at this point in time—not in the past, but here today. When asked about this in question time last week, the Minister, the Hon Mita Ririnui suggested that the words are new but the concept is not. This is interesting when we consider that there is a hell of a lot of care taken to ensure that the wording of bills is absolutely on the nose. Pinching is theft—same concept, but different words.

The Minister said that the Crown’s view was that it had ownership of the water stratum, including the airspace, on behalf of all New Zealanders. Here is the thing—Te Arawa could look after it quite well. Ehara mātou i te iwi kaiponu. [We are not selfish people.]

We are willing to share as well and to work with all other New Zealanders. But this has not been tested. It has never been tested. It has not been considered. Unfortunately, that seems to be how things work—the Crown just takes things when it wants to. It reminds me of other legislation that has been before Parliament. My research tells me about the Maori Affairs Act 1953; about Māori land being considered unproductive; and, of course, about the infamous Foreshore and Seabed Act.

If the concept is not new, why was there no mention of it in the Lake Taupō legislation, the Ngāi Tahu settlement, or the Ngāti Tūrangitukua claims settlement? The main problem with this is that the Crown has assumed ownership without having that assumption tested at all. The Māori Party will tell all of Māoridom: “Here we go again, another confiscation.” We should let the process run and let the law follow its course, rather than taking land away as we did with the Foreshore and Seabed Act.

In June 1990 a Treaty claim was made called Wai 150, which was lodged by Sir Graham Latimer on behalf of the New Zealand Māori Council. The claim sought findings that Māori have rangatiratanga over the allocation of radio frequencies, and that in the absence of an agreement with Māori, the sale of frequency management licences under the Radiocommunications Act of 1989 would breach the Treaty of Waitangi by being prejudicial to the interests of Māori. The report noted: “The spectrum is a taonga to be shared by the tribes and by all mankind. Neither of the treaty partners can have monopoly rights to this resource.” Although the ownership issue is still to be fully tested, the Waitangi Tribunal is clear that the Crown cannot have a monopoly on the resource. So here is a further treaty breach. The report continued “Tribal rangatiratanga gives Maori a greater right of access to the newly discovered spectrum. In any scheme of spectrum management it has rights greater than the general public, and especially when it is being used for the protection of the taonga of the language and the culture.” All of these issues come to the table when we are considering this bill.

Clause 25, “No rights to the water or aquatic life”, states that the fee simple estate in the lake bed is vested in the trustees of the Te Arawa Lakes Trust. The bill states that this does not include rights or obligations to the water. Let us define what a lake is. Here are some definitions of a lake. The first is that it is “a body of fresh or salt water of considerable size surrounded by land”. The second definition is “a large inland body of fresh water or saltwater”. The Concise Oxford Dictionary states that a lake is a “large area of water surrounded by land”. During the consultation process, people at various hui asked: “How the hang can you have a lake without water?”. Te Arawa has a lake back, but there is one problem—there is no water in it. There is no clear definition in respect of this.

So what are we getting back? We are getting the silt, the pollution, the paru, and the tūtae on the bottom, and Te Arawa is supposed to be grateful. Unfortunately, that is how it seems to be. It is also unfortunate that the trustees do not have any rights or obligations in respect of aquatic life in the lakes. Damn, I wish we had that. But we get the plants that are attached to the lake bed. We get the plants—how awesome. Who looks after the clean-up? At this point in time there is no commitment from the district council, although it has intimated that commitment may be there. Similarly, Environment Bay of Plenty and Environment Waikato are supposed to be part of the deal somehow, but there has been nothing from them. What about the Government? I am still waiting to hear, but I understand that some money has been given. Here is the rub: the Te Arawa lakes settlement is $10 million and the clean-up will cost $200 million. So we have a bit of a problem.

The hope will be that there is a commitment to follow through with cleaning up these lakes. We also hope that we will go back and revisit this notion of Crown stratum because it is very important. How can the Crown claim something that has not even been put into the law of the country? There is something wrong there. We will be making a big noise through Māori Television, and whatever other medium we have, to make sure that this information goes out to our people. Because in a subtle way we have another confiscation on its way, and the Māori Party will not stand by to let that happen.

CHRISTOPHER FINLAYSON (National) Link to this

I agree with the previous speaker that this is the first time the concept of Crown stratum has appeared in settlement legislation. He has raised some very interesting questions that really need to be addressed.

I approached Part 2 by looking for example at the Ngāi Tahu Claims Settlement Act to see the way in which, for example, Lake Te Waihora, or Lake Ellesmere, was dealt with, and also a couple of other lakes. It is interesting that in that legislation there was the transfer of the fee simple. In section 171 of that Act there was reference to the title extending to the bed only. There were also provisions about existing public access and use and existing lawful commercial use and structures. But it did not go as far as this part of the bill is purporting to do regarding the Te Arawa lake beds.

I focus, for example, on clause 24, which provides that the freehold estate of the lake beds is to be inalienable. I do not know, from my brief reading, if that is specifically referred to in any of the provisions of the Ngāi Tahu Claims Settlement Act. In effect, as my colleague Mr Henare said, this means that less than full property rights are being transferred to Te Arawa, because Te Arawa cannot dispose of or alienate the freehold estate, nor can they grant or create a mortgage or other charge in or over a part of the lake bed. I cannot understand why they should not be permitted to do that. Subclause (2) of clause 24 is unexceptional because it provides for a transfer or transmission to a trustee, and, of course, a provision like that would be needed. But the trustees of the trust may grant a leasehold estate in all or part of a lake bed for a term not more than 35 years, and they may also grant licences, easements, or profits à prendre over all or part of the lake bed.

So I would like to hear from the Minister in the chair, the Hon Mark Burton, because we are getting new concepts engrafted on to this legislation. As Mr Flavell said, it appears that this is the first time the concept of Crown stratum has come along. My second point relates to what exactly the Te Arawa Lakes Trust can do with this freehold estate that is transferred to it. This legislation seems to give them less than full ownership rights.

I will not deal with other parts of Part 2, because they deal with recreational matters and existing structures and so on, but I endorse what Mr Henare said about new commercial activities and new structures. Clause 41 provides that the written consent of the trustees will be required before new structures and new commercial activities may be permitted. Actually, the Ngāi Tahu Claims Settlement Act seems to be silent on the issue of new commercial activities and new structures, although there is provision for a joint management plan to be introduced by Ngāi Tahu and the Minister of Conservation and Director-General of Conservation. In any event, what we have in clause 41 is another layer of management, and it does seem to be a rather clumsy way of dealing with matters.

So they are, perhaps, matters that the Minister in the chair may care to address. The rest of the part is pretty unexceptional, and I will not waste the time of the Committee on it.

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

Kia ora anō. Kia ora tātou. I have a couple of quick points.

Most of the other issues have been covered, but one of the things I have not had answered, which I ask the Minister in the chair, the Hon Mark Burton, to consider, is an issue in clause 48, which is in respect of the establishment of the Rotorua Lakes Strategy Group. I put forward an amendment earlier to clause 5(5)(a) in respect of the number of Te Arawa members on that group being two, and I would not mind a response on that, because I think it is a key issue. I tried to put forward an amendment on it earlier, but the Minister did not give me a response with regard to how we might cover the equitable arrangement around it. So I would appreciate some feedback over that.

The other issue we talked about was the bigger picture around the whole notion about accountability, in a sense—not just the statement in the bill about Te Arawa having two members. As we mentioned earlier, the Rotorua District Council and Environment Bay of Plenty will be parties to the Rotorua Lakes Strategy Group, but one would have thought that the notion of equitable numbers between the new owner—namely, Te Arawa—and those other bodies responsible would allow for a better balance of power sharing, in the sense of rangatiratanga under article 2 of the Treaty, and, therefore, might have meant a better way forward. I know that a number of submitters—and, indeed, people back in Rotorua—have argued that, as the new owners, surely we can have equitable numbers on the body that will be looking after the clean-up of the lakes. They were fairly adamant that it would be very good to address that sort of notion. So I wanted to address that.

The other provisions I want to bring to the attention of the Minister are new clauses 51A and 51B, set out on Supplementary Order Paper 57, which is in my name. He will know that one of the issues raised was that of the three lakes—namely, Ngāhewa, Ōpōuri/Ngāpōuri, and Tūtaeīnangā—that fall under the jurisdiction of Environment Waikato. So the Rotorua Lakes Strategy Group will be made up of members of the Rotorua District Council and Environment Bay of Plenty, with Te Arawa—and we hope Te Arawa will have equal representation with the other two parties, if that discussion is to have some fruition—but that group will have no jurisdiction over three of those 14 lakes. There are 14 lakes, and three of them are outside the jurisdiction of the three parties that are supposed to be cleaning the place up.

So what happens for those three lakes? Nought. There is a view that the group should simply talk to Environment Waikato, but there is nothing there that acts as a lever to get Environment Waikato to come to the party. The officials told the Māori Affairs Committee that Part 2 of the Resource Management Act 1991 variously requires Environment Waikato to have regard to the Treaty of Waitangi and the values of Te Arawa in respect of their ancestral lands and water. That was supposed to be the leverage that would make sure that Environment Waikato comes to the party. Well, if that is the case, then it should have come to the party some 20 or 30 years ago, because that would have helped keep those lakes in the pristine condition that some of us remember as children. The Te Arawa Māori Trust Board told us that it had had no discussions with Environment Waikato. So I seek some assurances from the Minister, in terms of the particular point of those three lakes being outside the jurisdiction of Environment Bay of Plenty and in the hands of Environment Waikato, that Te Arawa has some guarantees that the concept of cleaning up all of the lakes in one shot will be part of the work conducted by Environment Waikato. I hope he will provide some sort of response to that. Kia ora.

Hon MARK BURTON (Minister in charge of Treaty of Waitangi Negotiations) Link to this

I was not going to take another call, but I will quickly answer Mr Flavell’s two comments. I think I made the point earlier that responsibility for cleaning up the lakes, in the end, does not change as a result of the settlement. Ultimately, the responsibility continues to sit with the local and central agencies where it resides now.

The other matter the member raises has to do with the membership of the Rotorua Lakes Strategy Group, and that is covered in his amendment set out on Supplementary Order Paper 57. I point out to the member that the agreement between the three parties is actually included in the schedule to the deed of settlement, not in the bill. That is where the detail of that agreement is laid out. The proposed amendments would fundamentally alter what is, effectively, the negotiated agreement between the Rotorua District Council, the Bay of Plenty Regional Council, and the Te Arawa Lakes Trust. As I say, that is included in the schedule to the settlement, and that is where the functions of the group are prescribed. It would simply be inappropriate to try to override that through this mechanism.

DAVE HEREORA (Labour) Link to this

I take a short call in this debate on Part 3. I raise in particular the function and procedures of the Rotorua Lakes Strategy Group, which are to include the review, amendment, and revocation provisions contained in the 8 October 2004 agreement. At the moment Te Arawa is on the committee at the discretion of the local authorities, so establishing the group by deed will ensure Te Arawa is on the group as of right, and therefore will ensure we have a significant and ongoing role in the strategic management of the lakes. We have heard that the strategy group will be made up of the Te Arawa post-settlement governance entity, the Bay of Plenty Regional Council, and the Rotorua District Council, and that it will lead to the provision of leadership to organisations within the community, and the identification of significant and emerging lakes, etc.

In respect of a matter raised by the Māori Party member Mr Flavell, in relation to three lakes standing outside the jurisdiction of the Bay of Plenty Regional Council, I think that that strategy committee will set up, in the first instance, a platform for the community to have some administration and management of the lakes. In leading to that, the committee will, under the Resource Management Act, invite Environment Waikato to participate as well, as time progresses. So I think it is an opportunity to set in place a structure so that the management of the lakes can be shared within the community.

The CHAIRPERSON (H V Ross Robertson) Link to this

The typescript amendment in the name of the honourable member Te Ururoa Flavell to insert a new heading and a new clause 48A is out of order, because it is inconsistent with the principles and objectives of the bill.

CHESTER BORROWS (National—Whanganui) Link to this

I stand to address the title of this Te Arawa Lakes Settlement Bill. The question asked earlier by the honourable member Te Ururoa Flavell was: “What is a lake without any water in it?”. In actual fact, the only thing being given in respect of each of these lakes is the bed of the lake. It seems that the new definition of a Crown stratum is a huge move to change the goalposts. I propose that the title of this bill should be the “Te Arawa Lake Bed (Take It or Leave It) Bill”.

We know, as discussed earlier, that Ngāti Whāoa have a claim, but in respect of this claim the Government is saying it needs some settlements under its belt, so it is moving with this one and is not worrying about the existing claim. At the same time, it is not worrying about the uncertainties or issues that remain in respect of Te Arawa. The Government has moved in spite of that and said that Te Arawa must take the settlement or leave it, and just move along. That is the first point.

CHRISTOPHER FINLAYSON (National) Link to this

Very briefly, a number of points of interest have emerged from this debate in the Committee stage. The first, by reference to recitals (13) through (19) of the preamble, is that negotiations were conducted at a very dilatory pace over a number of years. But at the end of the day, the Government’s approaches to this particular Treaty settlement could be described in this way: the first approach—that of the Government to Te Arawa—is to “take it or leave it”, as Mr Borrows said; the second approach, when dealing with the legislation before the House and this Committee, is to “accept it or forget about it and go and see a taxidermist”. I think those approaches are most unfortunate, especially when there are very important and legitimate issues that need to be raised—and these, in essence, have emerged during the course of the debate.

The first issue, which has been unsatisfactorily dealt with by the Minister, Mark Burton, and the Government team, concerns mandate. The report of the Māori Affairs Committee that deals with mandate questions is unsatisfactory. As I said when we debated Part 1, if mandate questions are not resolved satisfactorily—if the discordant remnants of Te Arawa are not brought into this settlement—there will be problems in years to come.

That leads on to the second point. It is very easy to put into the bill jurisdictional clauses that have the effect of trying to oust the jurisdiction of the courts and the Waitangi Tribunal in relation to matters concerning the Te Arawa settlement. I have seen such clauses before, in relation both to Treaty settlements and to other attempts to oust the jurisdiction of the courts—but where there is a will there is a way. If there are issues of justice that remnants of Te Arawa want to raise in 20 years’ time and the courts consider those issues legitimate, then they will get around the jurisdictional issues. So the kinds of points raised by the National Party and the Māori Party will not go away.

The third issue raised in the course of the Committee stage concerns definitions. Right throughout this debate—in the first reading, the second reading, and again in the Committee stage—I have raised issues about the vague reference to principles of the Treaty of Waitangi. I have raised questions about what references to spiritual significance and cultural significance are, and I, like my friend Mr Flavell, have referred to this interesting concept of Crown stratum that appears for the first time in this legislation. I think more care needed to be taken with some of the definitions and with some of the concepts. When looking at Part 2 I contrasted the scheme of this bill with the scheme, for example, of the Ngāi Tahu Claims Settlement Act of 1998. So some interesting definitional issues were not properly addressed.

Finally, when my team on the National Party and I looked at Part 2, which deals with issues about cultural redress, we said that some issues arose in the context of that particular part. I regret to say that they were not adequately dealt with. I particularly refer to clause 24. As Mr Borrows said, it transfers lake beds to Te Arawa and provides for a scheme of transfer that means the people of Te Arawa have something less than full entitlements to their property. For example, they are not able to dispose of or alienate a freehold, which is a fetter on their rights as property owners. They are not entitled to grant or create a mortgage, but they are entitled to lease the estate for a term of not more than 35 years. They are entitled to grant easements and licences. Those issues were not properly resolved.

Above all, if I can say this, what I have found most interesting is the unique position of New Zealand First in relation to this bill. It has an approach that can only be described as bizarre. It will support this bill and the Treaty clauses in it, but only, as it were, pro tem, because as soon as Mr Woolerton’s bill on the issue of deleting Treaty principles comes back to the House, New Zealand First will seek to delete them from this bill.

As I have said on more than one occasion in this Parliament, Treaty settlements are, and should be, a cause for great rejoicing in New Zealand. As I have also said before, quoting Isaiah, they give people the chance to undo the burdens of the past, so that everyone can point to the future in a spirit of optimism and goodwill. But this is bad legislation. It really does not address some fundamental issues. If you like, it is a paint-by-numbers bill that, in a boilerplate kind of way, seeks to impose on this settlement the standard forms, terms, and conditions of other settlements. As I have attempted to explain by reference to the Ngāi Tahu Claims Settlement Act, every settlement is, in a sense, sui generis, and it requires sui generis legislation. It requires people to look at the particular circumstances that gave rise to the settlement. I regret to say that with this legislation, the particular circumstances of the Te Arawa people have not been addressed. That is why, with great disappointment, really, and bearing in mind the history of negotiations over the years, National will be opposing the passage of this bill.

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

Tēnā koe, Mr Chair. Kia ora tātou katoa. Firstly, I will summarise some of the comments made this afternoon and this evening in respect of this bill. I will make it really clear to the Minister in the chair, the Hon Mark Burton, that, in a sense, I am fairly confident that most iwi Māori would like to move forward, with the settlements behind us. But the mere fact that most of the iwi involved in settlements have experienced splits that have devastated iwi, hapū, and whānau, in some cases resulting in physical violence in relation to simple things like votes, must tell us there are some concerns about the process. The Māori Party intends to continue to challenge the process used to achieve settlements. But we are also willing to contribute to some ideas that have been put up by a number of people over the years, to try to find a way forward. We also acknowledge the work being done by the new chief executive, or general manager—whatever his title is—of the Office of Treaty Settlements, in going around people and getting some views back, in respect of moving forward. That is the first thing I want to say.

But the practical reality, right here and right now, is that the Te Arawa Lakes Settlement Bill has come to this Parliament, so I attempted in the first part of this session to talk about its history and how it has got here. We talked about the notion that in 1922 one might have thought that this particular issue had been solved, through agreement between the Crown and Te Arawa. I believe that Te Arawa, my people, my koroua and kuia, believed at that time there was a way forward, by way of an agreement that looked at the issue of ownership. The practical reality, right here and right now, is that we are revisiting the dreams and aspirations the people had at that time, on the back of the view that back in 1922 it might have been thought an agreement would provide an economic platform for Te Arawa to develop, through a board. But that development did not happen. Why? The annuity did not increase. There was no issue about reviewing it and, of course, over time the money got to the point of being absolutely useless for the development of the people.

The deed today comes to us against that background, and it is also acknowledged by the Crown that it comes against the background of a breach of the Treaty of Waitangi. There is an acknowledgement by the Crown of that, and that this settlement is about doing something about it. How does the Crown do something about it? It offers some money, and it offers some lakes back. Yet as we said a little earlier, the Crown has offered the lakes back but there is no water—water is not part of the settlement. So one would think that that issue remains out there to be discussed.

The problem, as I mentioned earlier, is that the Crown has assumed ownership of the Crown stratum—that being the water above the lake bed, and the sky above that. The big issue for me is that that matter has not been tested in court, and other speakers, along with myself, have said that this is the first time the notion has been tested in the Parliament of this land. The downside of it, of course, for the benefit of those who are listening, is that it creates a precedent. Once a precedent is created, it says that that is it for everybody else. So everybody needs to know that here it is, on the Table tonight and again on Thursday, that the Crown has assumed ownership of the stratum. How do we know that? It is called the Crown stratum, yet this is the first time it appears in the laws of this land.

So will this agreement be lasting? I have suggested, as have other speakers, that no, the agreement will not be lasting. It will not be full and final, and I make no apologies for encouraging our people to come back and relitigate the whole issue. Why? It has come against a background of protest that started with the “fiscal envelope”. Is the “fiscal envelope” still alive? The answer is yes, it is. I need to say that this bill is set in the context of the “fiscal envelope” and that all of the conditions that came out of the settlements with Ngāi Tahu and Tainui have had an impact on this particular bill. One issue that came up, which I want to put out there again, is in respect of ownership. OK—Te Arawa are getting the lakes back, but in fact they can be outvoted by the other two bodies that are part of the management board or the Rotorua Lakes Strategy Group. Te Arawa can be outvoted, in fact, by the same groups that contributed to the pollution of Lake Rotorua.

Hon MARK BURTON (Minister in charge of Treaty of Waitangi Negotiations) Link to this

I will make just one final, brief contribution to this debate. We have heard from a number of members, including Mr Finlayson who quoted Isaiah. I would like to quote to him Ecclesiastes: “To every thing there is a time …” and it is time for this to be settled. It is time for this Parliament to recognise that despite the comment made in the course of this debate, we have duly mandated negotiators. They are not self-appointed or self-opinionated negotiators, but duly mandated human beings—who I am sure are not perfect, any more than we are, and who I am sure have not negotiated the perfect settlement, any more than the Crown negotiators have, but who have negotiated, in good faith, over years, a settlement. And that is their right to do, as the duly mandated negotiators.

That is a mandate that Sir Douglas Graham recognised, on behalf of the Crown, and I acknowledge his fine work. Margaret Wilson, who followed him, continued to recognise that mandate. I recognise her fine work. I have continued, on behalf of the Crown, to recognise that mandate, and I remind the Committee that so has the Waitangi Tribunal when that mandate has been challenged. I simply suggest to members that it is time this settlement was allowed to reach its conclusion. It may not be perfect, but it is the result of the best endeavour of the negotiators from the Crown and the duly mandated negotiators from Te Arawa to negotiate together in good faith, and to reach this settlement. This is their settlement; this is what they have arrived at. I simply urge members to allow it to progress, and to allow the people to then move on from grievance to development.