Treaty of Waitangi (Removal of Conflict of Interest) Amendment Bill

Hon GEORGINA TE HEUHEU (National) Link to this

I am very pleased to take a call on the second reading of the Treaty of Waitangi (Removal of Conflict of Interest) Amendment Bill, if only to express my relief that a majority of the Justice and Electoral Committee decided that the bill was without merit in terms of what it purported to do.

When the bill was first read in this House some time ago, National was reasonably upfront in stating quite clearly that although we were very happy to support it going to the select committee, we saw little merit in it. I said that as the issues in it had been raised—and raised in a way that New Zealand First often tends to raise issues to do with Treaty matters, especially in an election year—I was of the opinion that the bill should go to a select committee so that those issues could be discussed, debated, and considered fairly, if only to maintain the integrity of the process of the Waitangi Tribunal, which has served this nation very well since 1975. I might add that the tribunal has been the object of study and visits by overseas indigenous peoples and others who have come to see how we have addressed, and continue to address, the issue of historical claims of the indigenous Māori of New Zealand against the Crown, and an examination of the Crown’s conduct pursuant to the Treaty of Waitangi.

This bill is taking its course and has been to the select committee. As I said, we in National thought it should go there, but now that it has been there and come back with the majority of the committee against it, I think we can all be reasonably satisfied that it has had its proper scrutiny. It was found to be wanting in terms of what it proposed. I will not say that that is what I always thought, but what it does present, I think, is a picture of a functioning forum—unique in the world, I might add—that examines Crown conduct vis-à-vis the indigenous people of this nation.

The bill states that a conflict of interest arises in respect of the fact that the judges of the Māori Land Court sit on the Waitangi Tribunal. There are two different jurisdictions, as we are all probably aware. The Waitangi Tribunal was established under its own Act in 1975. It is a permanent commission of inquiry charged with making recommendations to the Government on Crown conduct according to the principles of the Treaty of Waitangi. Gleaning the meanings of those principles, or gleaning those principles from a study of the two versions of the Treaty of Waitangi, one Māori and one English, called for an approach that was more inquiry-driven than strictly legal or adversarial. I have sat on the tribunal and have seen how that inquiry function has been very supportive of the kaupapa. But it is very important none the less, as there are quite high stakes here in terms of public interest and the politics of it, that it possess—and it still does—a semi-judicial function.

The Māori Land Court, of course, has its own separate jurisdiction under Te Ture Whenua Maori Act 1993. They are two different jurisdictions, and, on the face of it—and in fact—they are not in conflict as to the two tasks to be performed. One thing, though—the upside of the fact that judges of the Māori Land Court sit on the tribunal—is that there is an understanding of the issues that are likely to come before the tribunal. This is a specialised area of the law. We see that with the Environment Court, for instance, and with the Employment Court. Those courts deal with specialised areas of the law, and the Māori Land Court even more so in terms of what we are dealing with here, I think, than with some of the other areas of the law. It therefore calls for people with an underlying knowledge of the Māori dynamic, Māori iwi structures, and so on.

The second comment on this issue of so-called conflict of interest is that it is not unusual for judges, for instance, to be able to sit in more than one jurisdiction. This is not something unique in the jurisdiction we are talking about. High Court judges sit on the Court of Appeal, and District Court judges and Māori Land Court judges may serve in the Environment Court. As far as I am aware there has never been any suggestion that there is an inherent conflict of interest arising in such situations. The situation is similar here. There is no inherent conflict of interest in Māori Land Court judges serving on the Waitangi Tribunal. The other thing is that members of the judiciary—and I am talking about the wider judiciary—often undertake tasks outside the judicial system. Chairing commissions of inquiry, as long as it does not conflict with judges’ judicial role, is a practice, as well.

The point is that there is nothing unusual in what is happening here. There is nothing unique about it; it happens across our judiciary. But the very fact that it is raised by New Zealand First tends, in my mind, to raise the question as to whether we are picking on these two jurisdictions simply because they deal only with Māori issues. I hope not. In any event, that has been rejected by the select committee, as well. It is proper, because the stakes are high in this whole Treaty of Waitangi process, that if from time to time issues are raised as to the efficacy of what we are doing here, then there is a forum within which we can air these matters, and that is what has happened here.

I hope that as the majority of the House sees no merit in the bill, that might convince our colleague who is in charge of it, Pita Paraone. I respect his judgment, but, given that this matter has been widely aired in its second reading—and I have read New Zealand First’s comments in the report back from the select committee—he may have a comment to make about the reasons put forward by the committee and by the majority of MPs in this House as to why his bill ought not to proceed.

In closing I say that the Government, I think today and maybe yesterday, has introduced two major settlement bills to the House. After 9 years, that is a good thing. I do not make any mention at this moment of National’s position, but certainly in the future—as we have said many times—when we make Government, which we obviously hope to do in a few months’ time, we wish to move the settlement of Treaty injustices forward in a more timely way. If, as there seems to be, there is wide support by the iwi of the central North Island for the two settlement bills that are now before the House, then that makes us pleased as well. The one thing we all want—all of us across the House including New Zealand First, despite this bill—is that the momentum for Māori development, which has been obvious and spectacular over the last 20 years, continues. The entry of those two bills into the House is progress, and we will see more of that sort of thing when the election is over and National takes those seats on the other side of the House.

DAIL JONES (NZ First) Link to this

I raise a point of order, Madam Speaker. Could I just clarify where New Zealand First is on the speaking list. We are on a second reading and have just had the second speech from a National member, so are we No. 8 or No. 10 in the speaking list of 12? If we are No. 8 it means that the Greens, the Māori Party, United Future, and ACT have all missed out on an opportunity to speak—that is, if they wanted to speak.

The ASSISTANT SPEAKER (Hon Marian Hobbs) Link to this

Thank you very much. Can you please sit? The first people to speak in this second reading 2 or 3 weeks ago were from New Zealand First and National. Labour should have taken the call when we came into the debate today. It was taken by National. I will now resume the order, as at No. 3. We will have Labour, the Greens, the Māori Party, United Future, ACT, and then we will skip a National speaker and go on. Thank you.

Hon DOVER SAMUELS (Labour) Link to this

Te mea tuatahi māku, kei te mihi atu ki a koe e te whaea Georgina, i roto i āu nei tirohanga mō tēnei pire e pā ana ki te Rōpū o te Taraipiunara. Nā reira, kei te mihi atu.

[The first thing for me is to acknowledge your views, madam Georgina, in respect of this bill about the Waitangi Tribunal.]

I am just acknowledging the contribution by the Hon Georgina te Heuheu in terms of her wise observations about this bill. I am very interested in making a contribution to this bill, because it talks about conflicts of interest.

Nā, tuarua, kei te mihi atu ki a koe e te whanaunga e Pita, nāu nei tēnei take i whakapuaki ake hei kōrerotanga, hei whakawhitiwhititanga whakaaro mō ngā āhuatanga e pā ana ki te tribunal.

[Secondly, I acknowledge you, Pita, the relative, the one responsible for this bill, as we debate and deliberate aspects relating to the tribunal.]

I am acknowledging also the contribution and the introduction of this bill by our colleague Pita Paraone. It actually goes to the core of what the Waitangi Tribunal is all about. I supported the introduction of the Treaty of Waitangi (Removal of Conflict of Interest) Amendment Bill and its referral to the Justice and Electoral Committee. The reason was the unclear nature of the process in terms of proposed or perceived conflicts of interest. I think it is very important that when we look at a judiciary—specifically, the tribunal and the tribunal’s functions—we can have confidence in it. Irrespective of the make-up of the tribunal, the people of New Zealand, both Māori and non-Māori, have to be confident that the people in our jurisdictions have the ability and integrity to carry out their duties without conflict and without persuasion by anybody.

At the time of the bill’s introduction I read its explanatory note, which comes from our colleague Pita Paraone, who is the architect of the bill. It states: “It seems highly dubious to allow serving Judges of either court to preside over matters on the Waitangi Tribunal when they may have presided over those matters in the High Court or the Maori Land Court.” Reading that stirs up ideas that there may be duplication or some conflicts of interest in terms of the jurisdiction of judges, and rightly so—I think the matter needed to be raised. This issue has been in the minds of many people involved not only in the tribunal but—God help us—in the Māori Land Court.

So I think that allowing the bill to go to a select committee was the appropriate process. It is in that arena that we listen to submissions from people who have experience and knowledge about these matters. The select committee process also allows us to canvass the general public and those stakeholders who may be affected and who are intending to make submissions to the tribunal or the Māori Land Court. That is the process that would eradicate or alleviate any concerns about the issues of proposed or perceived conflicts of interest.

I know that my colleague Pita Paraone is disappointed, but I thank him for raising the issue. I think this Parliament owes him that gratitude, and I would expect that members of that select committee would take on board his real concerns about the perceived conflict of interest. As I said before, I was one of the ones who supported the bill’s referral to the Justice and Electoral Committee.

Now the bill has come back to the House, and I thank the select committee members for their very comprehensive report. I am mindful of the conclusion of that report, where the select committee says: “We consider that there is no inherent conflict of interest in sitting judges of the High Court or Maori Land Court serving on the Waitangi Tribunal, or the Chief Judge of the Maori Land Court acting as the Chairperson of the Waitangi Tribunal.” Well, that is good enough for me. Although I understand the disappointment of my colleague Pita Paraone, I think he can understand and also appreciate the objectivity that has been brought to the process by the select committee, and I am glad to hear that that sentiment has also come from the Hon Georgina te Heuheu.

I have always been concerned about the integrity of the process not only of the Waitangi Tribunal but also of the Māori Land Court. This bill goes to the heart of the functions of the tribunal when we talk about the integrity of those who are presiding. Some of the decisions of the tribunal have been rather dubious. I understand some of the reasons why, and I understand the environment that the tribunal has to work in. It must decide whether the evidence that is put before it is historical fantasy—made up by people who have some sort of cultural diversions, if you like, and who have been watching The Lord of the Rings and coming before the tribunal with that type of evidence—or historical fact.

There are two phenomena within this jurisdiction. There are those who have many stories to tell. There are those who still believe that Maui fished the North Island out of the sea—I am one of them, because I am a fisherman. But it is not necessarily factual, and it is not necessarily true. So when these matters are put before the tribunal we need the rangatira, both men and women, who have wide knowledge about tikanga and tekanga. They are two different things. Tikanga is the culture of Māori, and tekanga is the spinning of a lot of bullshit—with respect, Madam Assistant Speaker. That is the inherent difference. Sometimes when rangatira are sitting up there, they are confused at the difference between tikanga and tekanga.

I see that my colleague Pita Sharples has a smile on his face. He knows what I am talking about. In the past, I have sometimes seen him presiding on both sides of the table, and I do not know whether he is telling me tekanga or tikanga! He has advocated in this House this afternoon about tennis players—about Ngāti Kahungunu being tennis players mai rā anō since 1840. I can tell members that the Ngāpuhi have been tennis players since the 1600s. Our rocks, our tennis balls, were a bloody sight bigger than theirs. So that comes back to tekanga again.

I come back to the bill, Madam Assistant Speaker; I am just saying that therein is the integrity. We are satisfied that the select committee has done its job, and I support the committee’s appropriate recommendation.

Nō reira, kei te mihi ki a tātou katoa. E Pita, tēnā koe me wō whakataukī, ā, ko koe te rangatira o te purei pāoro o te tēnehi. Taku kōrero ki a koe, āta kōrero. Kei konā taku whanaunga a Hone e titiro ana ki a koe, ā te wā e tū ai te All Blacks ki te purei, tēnā pea, kua wini tātou. Nō reira, huri ana i tō tātou Whare, tēnā koutou.

[So I acknowledge all of us. Peter, greetings to you and your wise sayings. You said you were a top tennis player. I say to you, look out. My relative Hone is over there keeping an eye on you. When the All Blacks turn out to play—who knows, we might win. So greetings to you collectively throughout our House.]

Madam Assistant Speaker, thank you for your indulgence. Kia ora tātou.

HONE HARAWIRA (Māori Party—Te Tai Tokerau) Link to this

Tēnā koe, Madam Assistant Speaker. Tēnā tātou katoa e te Whare. I am sorry, but I find no humour in having to speak to this bill. This New Zealand First bill, which is promoted by Pita Paraone and is denounced as being anti-Māori by Māori from throughout the country, plans to end the careers of some of our best Māori judges of the Māori Land Court, the High Court, and the Waitangi Tribunal, and to stop them from serving their own people.

This bill is exactly the same as that other anti-Māori bill put forward by New Zealand First, represented at the Justice and Electoral Committee by Pita Paraone, voted for by all of Labour’s Māori MPs including Parekura Horomia, Nanaia Mahuta, Mahara Okeroa, Mita Ririnui, Dover Samuels, Dave Hereora, and Shane Jones, and denounced as being anti-Māori by Māori from throughout the country. That bill was called the Principles of the Treaty of Waitangi Deletion Bill, and it proposed taking the Treaty of Waitangi out of all New Zealand legislation. Thankfully, the rest of the House voted with the Māori Party at the second reading and threw the bill out, but not before all of Labour’s Māori MPs had actually voted to delete the Treaty of Waitangi from all New Zealand legislation. And vote for it they did. It was not just a couple of them, but the whole lot of them: Parekura Horomia, Nanaia Mahuta, Mahara Okeroa, Mita Ririnui, Dover Samuels, Dave Hereora, and Shane Jones.

In fact, so horrified was Angeline Greensill, the Māori Party candidate for Hauraki-Waikato, that she rang me to ask whether I was sure about that. She asked me to confirm that every one of Labour’s Māori MPs, including Parekura Horomia, Nanaia Mahuta, Mahara Okeroa, Mita Ririnui, Dover Samuels, Dave Hereora, and Shane Jones actually did something as dumb as to vote to delete the Treaty of Waitangi from all New Zealand legislation. Being a fully paid-up member of the Māori Party, I had no option but to tell her the truth: that in fact, yes, they had—all of Labour’s Māori MPs had voted to delete the Treaty of Waitangi from all legislation.

METIRIA TUREI (Green) Link to this

I congratulate my colleague Hone Harawira on his contribution to this debate, because I agree with virtually everything he said. I will talk about the Green Party view on this bill, which is very similar, although it will not be put in such an elegant or passionate way, I think.

It interests me a great deal that New Zealand First has a tendency to put forward into the ballot bills that concern the Treaty of Waitangi in various ways. In fact, as far as I can remember—and I have been here for a wee while now—there has been only one New Zealand First bill pulled from the ballot that did not concern the Treaty. A number of them have concerned the Treaty, and all of those bills have been focused on undermining the role of the Treaty in legislation and in society. That raises a great deal of concern. It means that when the Greens approach legislation like this Treaty of Waitangi (Removal of Conflict of Interest) Amendment Bill from New Zealand First, given that it concerns the Treaty as well, we do so with a great deal of suspicion that the purpose of this legislation is about undermining the Treaty, about eliminating it from the law books and from the community’s view, and in some way about taking an anti-Māori approach.

It is very sad that a party that has a number of Māori MPs—which it certainly did in the last Parliament—is happy to promote such legislation to the House and that its Māori MPs are then encouraged or required to promote that legislation through the House, as well. I have some sympathy for the members who are in that position, because I think that it puts them in an inherent conflict of interest, which is just the situation that they expect the Chief Judge of the Māori Land Court and the chairperson of the Waitangi Tribunal to be in.

Getting to the bill itself, as far as I can tell from my work on the Justice and Electoral Committee, there is no requirement that the Chief Judge of the Māori Land Court also be the chairperson of the tribunal. The law simply allows for that to happen, recognising that there is still a shortage of people with the kind of expertise needed, and it makes sure that, regardless of other circumstances, it is possible to have the most highly skilled person for both those jobs doing both those jobs. Given that it is not a mandatory requirement, there really is no need for legislation that takes that opportunity away, because it simply undermines the ability of Māori to take up these positions and fulfil these seats of power.

One of the issues raised by the select committee was that the pool of people available for positions like this, in a number of positions like this, is still very small. That is quite true. That is because there have been decades—in fact, a century and a bit—of under-representation of Māori in the higher reaches of education, and there continues to be a lack of Māori getting the kind of education and experience that is needed to do this kind of work. One might reflect, for example, on the universities that are currently going through the process of using funding formula issues to restrict access to some of the first-year arts and Māori courses, which again will have a disproportionate effect on Māori. It will mean that they will have much greater difficulty in accessing tertiary education at the degree and post-degree level so that they are then able to have the kind of education, the kinds of qualifications, they need to get the work experience they need to do this kind of work.

There is a systemic issue with education that prevents Māori from getting the kind of education needed so that we can grow the pool of people who are able to do this work. Having said that, we are doing a little bit better. I have always been enormously amazed at the talent, skill, and knowledge of the people whom I went to law school with, for example. We have some fantastic examples of those people doing amazing work in their community, and that pool is growing slowly. But the systemic barriers to it continue to exist, and this legislation is simply another part of that systemic barrier. This provides a barrier at the top end. Where the universities are putting in barriers at the bottom end, New Zealand First wants to put barriers at the top end, again to prevent Māori from taking up these positions of considerable responsibility and authority. Again, this is a deeply anti-Māori measure that is promoted by a party with Māori MPs who should know better.

One of the other issues raised in the select committee was that resources are necessary to ensure that a person who is doing both jobs is able to do both jobs well and effectively. That is always an issue for Māori organisations of any description—that there are simply not the resources available. The Greens are certainly of the view that the Waitangi Tribunal is insufficiently resourced to carry out the work that it is trying to do. The tribunal is often in quite a conflicted position, because it acts as an arbiter, or an assessor, of the wrongs that were committed against Māori by the State in various forms over many years, yet it does not have the full resources it needs to do that work as well as it could. It does a fantastic job with the resources it has, but it could do much better with more, and it is still pulled into a lot of the Government policies. For example, Michael Cullen, the Minister in charge of Treaty of Waitangi Negotiations, said in the select committee today how pleased he was to see the Waitangi Tribunal, the Office of Treaty Settlements, and the Crown Forestry Rental Trust working together around Government policy. But, of course, that raises real questions about the role of the tribunal as an independent arbiter of the wrongs that were committed against Māori when working with the Government on a policy that seeks to restrict their compensation, if you like, to less than 1 percent of the value of the properties they lost.

So there is still a real issue around the resourcing of the tribunal and the Māori Land Court to make sure that they can do their work well. I am pleased that the select committee referred to that in its report, so that it could be brought to the attention of the House and so that the whole concept and issue of resources for these organisations, and for the people who work there, can be raised continually for people’s purview.

Mr Harawira raised an interesting question around the role of Labour in supporting this legislation. I know that Labour has supported a number of New Zealand First members’ bills—including, for example, the foetal criminal responsibility bill, which was promoted by Ron Mark, and other legislation like the members’ bills promoted by New Zealand First that have called for the elimination of references to the Treaty of Waitangi from legislation. I do think this is an ethical issue for the public to be aware of. Labour and New Zealand First have a political agreement that Labour will support the first readings of all of New Zealand First’s members’ bills going to a select committee, whether or not individual Labour members agree with them. This is a big issue, especially when members’ bills generally involve conscience issues or issues that are of particular concern to individual members. At times, other members of other parties will want to make a personal statement or a personal stand on those issues, and I think they should be entitled to do so.

So a political agreement between these two parties—Labour and New Zealand First—prevents individual Labour members from being able to express their real view. They have to vote for, and have their name recorded in favour of, legislation that they are personally opposed to. I have great faith that Labour’s Māori members oppose this legislation, as I am sure they did when it came to the New Zealand First bill to eliminate references to the Treaty from legislation. I am sure that many Labour members were also opposed to Ron Mark’s foetal criminal responsibility bill. How ethical is it for MPs to be required to vote against their conscience and their personal views on such serious matters, and on personal matters, in a context where members would ordinarily have the opportunity to express their own views on members’ bills? I think it is an unfortunate state of affairs that Labour has got itself into with that political agreement. I think it is highly unethical.

The Green Party has done very well with its members’ bills without having such an agreement. In fact, we are the only party to have had members’ bills passed into law. Currently, three pieces of legislation are fully Green Party Acts, and we will add another two Acts in the next few months. We will have achieved five Acts, not because of an unethical deal that was done with another party but because we have done the work and put up the bills that get the legislature’s support. I think that is a much more ethical position than that proposed by New Zealand First and Labour. Thank you.

Hon NANAIA MAHUTA (Minister of Customs) Link to this

Given the contribution of the MP for Te Tai Tokerau—soon to be replaced—Hone Harawira, I was not prepared to give him the charity of my silence on a number of issues that were raised in the House in relation to positions taken by Labour Māori Government MPs. In fact, although the MP for Te Tai Tokerau may be happy to mislead the House—and people listening to the debate could very easily be misled by that contribution—it really is important to set the record straight. Let us look at the issue of the Principles of the Treaty of Waitangi Deletion Bill, which was introduced by New Zealand First. Yes, that bill was supported through the first reading stage to be sent to a select committee. The clear understanding given by Labour Māori MPs at the time was that, although that is a view held strongly amongst New Zealand First, we were not prepared to stifle any debate on the Treaty of Waitangi at any point, because it is a debate that every New Zealander has an interest in. That is why the select committee process becomes so important.

I now move on to the Treaty of Waitangi (Removal of Conflict of Interest) Amendment Bill. For any person listening to a considered debate on issues in this House, if one were listening to the contribution of the MP for Te Tai Tokerau on this bill—and, again, sending it to select committee can be a positive thing because the submission process in itself starts to inform this House, through its select committee members, about the public view on issues that are hotly contested across all sectors of this House—it would be wrong to think that Labour Māori MPs do not support issues regarding Māori. In fact, it was the Labour Government that established the Waitangi Tribunal. It was the Labour Government that allowed retrospective claims to the tribunal, and it was the Labour Government that continues to advance Treaty settlements in this House. In fact, if people were to listen to the considered debate on just how Labour Māori MPs and this Government advance and support Māori development, they would be very interested and concerned to hear that many of the Māori Party MPs have not voted for Treaty settlement legislation—and that is a fact. So the charity of my silence would be misplaced on this particular issue, because this House is informed on good political debate.

The Green Party member made the point that, although understandings apply across the House, much of the Green Party legislation that has gone through has done so with the support of this Government on similar understandings of a different nature. But we cannot take the moral high ground too much in terms of the nature of the relationships that exist in this House.

I come back to this bill, because it is an important issue that was well considered by the Justice and Electoral Committee. I think the most cogent part of its consideration was expressed on page 3 of its report, which brings the crux of the matter into a nice, sharp, crisp statement. That is the reason why we will not be supporting this bill in its third reading. The report states: “It is not unusual for Judges to be able to sit in more than one jurisdiction: for example, High Court judges sit on the Court of Appeal, District Court judges and Maori Land Court judges may serve in the Environment Court. There is no suggestion that any inherent conflict of interests arises in such situations and we see no reason for considering the situation of Maori Land Court judges and serving High Court judges to be any different. We were forwarded advice issued by the Crown Law Office in 2001 which supports this conclusion.” I think that if anyone wants to get to the nub of the matter and understand the full consideration of the select committee, that really is a very clear statement, and it is well put within the context of this report. I am happy we have had the debate, and I inform the House that Labour Government members will not support this bill.

Hon TAU HENARE (National) Link to this

National will not be supporting the Treaty of Waitangi (Removal of Conflict of Interest) Amendment Bill any further, either. I want to put the argument in this manner—and I ask my elder—

Hon MAHARA OKEROA (Minister of State) Link to this

I came into the Chamber earlier because I was looking forward to hearing what the member for Te Tai Tokerau had to say. I was looking forward to that with great anticipation, but, unfortunately, I was disappointed once more. I was absolutely disappointed. That member has been in the House for almost one term. If he had not said “Okeroa, Ririnui” and so on and so forth, there would have been nothing in his speech at all.

The other point I want to pick up on, as an introduction to what I need to say about the Treaty of Waitangi (Removal of Conflict of Interest) Amendment Bill, is the extraordinary difficulty I have in accepting the comment that the sponsor of this bill could actually be described as promoting something that is anti-Māori. I find that to be totally unacceptable, in the sense that the sponsor of this bill, Mr Pita Paraone, is descended from one of the principal and highly respected chiefs of his people, and who had demonstrated everything about being very pro-Māori as opposed to being anti-Māori. I need to say that my knowledge of the sponsor of this bill is that he has had the courage to put up this member’s bill, and I find no reason to then call him anti-Māori.

I know the sponsor quite well and I would say that all his life he has done everything to assist Māori, and not only that but he has been acknowledged as having done so. I refer to the honour that was awarded to him in respect of his services to Māori people. I want to put that in its proper context for people who are listening to the debate. If Mr Paraone were anti-Māori, then certainly he would not have been the recipient of an honour that reflected both his service to the community and to his people. The only anti-Māori flavour that I can conjure up, and that all Māori in New Zealand should be aware of, is the appalling record of the Māori Party in not supporting Treaty settlements.

Hon SHANE JONES (Associate Minister in charge of Treaty of Waitangi Negotiations) Link to this

Kia ora anō tātou e te whānau. This bill was brought forward as an essential part of modern social democracy by my whanaunga Pita Paraone, a high-born son—unlike his critic Hone Harawira—of Ngāti Hine.

Nā reira, e puare ana tēnei Whare ki a koe e Pita, maua mai i ēnei whakaaro hei kōrerotanga, hei whāwhā, hei hamahama mā tātou. Koia tēnei te tikanga o tēnei Whare. E puare ana ki te iti me te rahi ahakoa pēhea te kawa, te kakara o tēnā take.

[This House, therefore, is open to you, Pita, to bring these viewpoints here for us to debate, to get a feel about them and to hammer out. That is the custom of this House. It is open to the minority and majority, regardless of how distasteful or how pleasant that issue may be.]

This House is the highest court in the land. It is a place where issues of this nature ought to be debated and made available for all manner of contributions. As I said in our Māori language, Pita Paraone has brought forward a perspective that will not carry the majority this evening, but he is entitled, as a key contributor to this House, to do so. Any suggestion from the member for Te Tai Tokerau that this bill is anti-Māori, anti-democratic, or inversely related to the advancement of our nation goes to show that the only creatures that enjoyed the contribution à la Hone Harawira this evening were the bug-eyed goldfish going round their bowls. They found a friend in Hone Harawira, who spouted circuitous, mindless rhetoric. He said that the future of the Waitangi Tribunal, the composition of the tribunal, and the confidence in the tribunal of the citizenry ought not to be debated here. Between the approaches of Pita Paraone and Hone Harawira, Māori voters up and down the country have two clear opportunities: one is to embrace a petty, very stunted, negative, and divisive view; the other is to embrace an open, vigorous, not necessarily consensus-oriented, but valuable contribution to this House.

I support much of what Mahara Okeroa had to say. Enough of Hone Harawira; the voters of the north will pass that verdict. In fact, today I met with Te Rōroa from Waimamaku. They are great supporters of what is happening in the area of the Treaty. They fear that the tide is going out so fast that my whanaunga is getting caught on a pipi bed. The tide is moving against him, and is taking a new waka, with the friends Rōpū Reipa and Aotearoa Tuatahi in it, into great fishing grounds. That waka is not stranded, surrounded by stunted pipis, scorched mussels, and desiccated fish, which represent the essence of Hone Harawira’s contribution. Fortunately, the proud families of Te Aupōuri, and the proud families of West Auckland—although Hone Harawira’s supporters would probably fit in the telephone box very near John Tamihere’s house—will not agree with one single word of the unwanted and superfluous remarks that he made this evening.

The reality is that we must have confidence in our jurists and our judicial officers. The odd, possibly deluded, complainant may have gone to Pita Paraone out there at Bucklands Beach—that hive of Māori activism—to alert him to the concern that some of our Māori judges on the Māori Land Court may lack the ability to be dispassionate and fair. In my experience, many of the Māori Land Court judges who also sit on the Waitangi Tribunal are just as fierce in their criticism of Māori contributions as their Pākehā colleagues are. At the moment, those judges can sit on the Environment Court, and they can sit on the tribunal.

Let us back our judiciary. Let us not be like Hone Harawira, who attacked that very sensible judge from Ngāti Kahungunu country. Hone Harawira says that inveterate taggers—junior voters, no doubt, of the Māori Party—should be allowed to escape and carry on their mindless destructiveness, without having to face the consequences of their actions. We will never hear that from Pita Paraone. He would say of that judge, in contrast to my whanaunga Hone Harawira, that he should be put on the honours list—not called a teke.

Therein lies the contrast between the two approaches. Of course, on our side we take elements from both approaches. We take the tradition-bound approach that Pita Paraone is bringing to the table, of tā te rangatira kai he kōrero—which basically means that debate and oratory are a chiefly pursuit—and we take the energy that occasionally is seen in this House, and that is largely anarchic when it is in Hone Harawira’s hands, and bind them together so that we have a balanced contribution in relation to the Treaty debate.

The concerns that Pita Paraone has lie with whether a potential conflict of interest is manageable. No less a powerful and judicious person than Peter Salmon has pointed out that it is, provided that it is declared, and provided that there is a process to manage it. I have no doubt that, in the event that a potential conflict of interest is so serious as to have a negative impact on the Crown, on the iwi, or on other stakeholders, there are more than enough judges to fill the role. Lord knows, we on this side of the House have been out on a harvesting exercise and have boosted the number of Māori Land Court judges. I say to Pita Paraone that when they are appointed they enjoy a rare privilege, which unfortunately we do not enjoy: they do not stand for office. However, many iwi have promoted the notion that Māori Land Court judges should have to go and gain their credentials from iwi, but for fear that Hone’s rhetoric might infect iwi decision-making, I hope that day never comes.

This bill is an example of a large party and its key colleague, a minority party—Aotearoa Tuatahi—being able to agree on how an issue should be debated. There is absolutely nothing wrong with people going to a select committee to give their differences of opinion, the select committee staff sieving them, the select committee members debating them, and, when the measure comes back to this House, the power of democracy having its way. That does not mean that the man ought not to have been allowed to bring that perspective here. He should be congratulated on it. He is actually adding to the richness of our parliamentary tradition, whereas, unfortunately, Hone Harawira is adding further fuel to his new name “Kaitaia Fire”, because what comes out of the mouth is hot and incandescent but it generates a lot of heat and precious little light. Kia ora tātou katoa.

DAVE HEREORA (Labour) Link to this

Firstly, I acknowledge the member in charge of the bill, Pita Paraone. It is not often that a member is able to have his bill pulled from the ballot in this way. The other fact is that Pita Paraone is Māori, and it is not often that we see bills coming through from Māori. I acknowledge him in relation to those two matters. I also reaffirm the undertaking given by Labour to support the passage of the bill through to the Justice and Electoral Committee, as that support was part of the confidence and supply agreement with New Zealand First.

I take this opportunity to respond to an issue raised prior to the dinner break. I think it is important that we have the option of referring bills to select committees—particularly for those of us who are not involved with the particular select committee—because it gives us more information. The select committee process has given us the opportunity to arrive at an informed decision on this bill, so I do think it is important. It has given that opportunity to those of us who are not associated with that select committee.

I read in the report back that the bill “proposes to amend the Treaty of Waitangi Act 1975 to remove the ability of serving Judges of the High Court or the Māori Land Court (including the Chief Judge of the Māori Land Court) to serve as members of the Waitangi Tribunal. Instead it provides that retired Judges of the High Court or Maori Land Court (including retired Chief Judges of the Maori Land Court) be members of the Waitangi Tribunal; and that a member who is either a retired Judge of the High Court or retired Chief Judge of the Maori Land Court should preside as Chairperson of the Tribunal.”

The bill cites an inherent conflict of interest as to the reasons for the proposed amendments. We do not support that view. We do not consider that there is an inherent conflict with sitting judges of the High Court or the Māori Land Court serving on the tribunal, or with the Chief Judge of the Māori Land Court acting as chairperson of the Waitangi Tribunal. It has worked, I think, well in the past, and we are not experiencing any major problems.

The Waitangi Tribunal, as we know, is charged with making recommendations to the Government on claims brought by Māori relating to actions or omissions of the Crown that may breach the principles of the Treaty, and the Māori Land Court makes decisions relating to ownership and administration of Māori land in accordance with Te Ture Whenua Maori Act 1993. I hold the very strong view that consideration should be given to the requirement for the Māori Land Court and Waitangi Tribunal members to have similar qualities—that is, the understanding of tribal structures and of the Māori land history, customs, and traditions. They are competencies that are relevant for the Chief Judge of the Māori Land Court and chairperson of the Waitangi Tribunal—especially considering that the pool of judges who meet those criteria is quite limited. So there may be practical difficulties for a person holding both positions if he or she does not have adequate resources or the ability to delegate that responsibility. On that point I note that the tribunal’s chairperson currently has the power to delegate work to an appointed deputy. I consider that this option, at the very least, partially addresses the concerns about workload.

I also take on board the concern raised by the member that there are other people in New Zealand who have the knowledge, or have even greater knowledge than a Māori Land Court judge on matters relating to issues of Māori, and in doing so I note that the role should be made available to others and not be limited to the judiciary. However, we consider that the amendments proposed could severely limit the ability of the Waitangi Tribunal to draw on the expertise of those best qualified to act as members. Currently, there are not enough judges around with the high level of understanding of Māori grievances and tribal systems that they need in order to serve just as members of the tribunal.

On occasions, judges disclose conflicts that allow parties to request an alternative presiding officer, or ask a member to withdraw or file a memorandum, which I think is perfectly legitimate. A more common example of conflict of interest for presiding officers is where they may have acted as counsel to one or other of the parties involved at some earlier stage of their careers. In that instance, again, the matter is usually resolved in the same way by the court proceedings.

Finally, I say again that in our view there is no inherent conflict with sitting judges of the High Court or Māori Land Court serving on the Waitangi Tribunal, or with the Chief Judge of the Māori Land Court acting as a chairperson of the tribunal. It has worked well in the past, as I said, without major problems. We consider that the amendments proposed could severely limit the ability of the Waitangi Tribunal to draw on the expertise of those best qualified to act as members, and there are not enough judges with the high level of understanding of Māori grievances and tribal systems that is needed for them to serve as members of the Waitangi Tribunal.

In finishing, I again acknowledge the member in charge of the bill. I think it is important that we as members of this Parliament have the opportunity to have this debate in order to be able to critique the report from the select committee so that members can reaffirm their position as to which way to vote on this matter.

DAIL JONES (NZ First) Link to this

I would like to congratulate Mr Dave Hereora on his speech and thank him for his kind remarks, as well. He at least looked at the Treaty of Waitangi Act, read the report, gave consideration to it, and gave some thought to what he had to say. That is unlike the member of the Māori Party, whom I doubt ever really read the report or the Treaty of Waitangi Act. I especially doubt whether that member has ever looked at section 4, because in his entire speech he seemed to be absolutely ignorant of the issues that are before the House tonight. I would also like to thank all other members who took part in this debate. New Zealand First is disappointed that this matter is clearly not going any further, but its members appreciate the opportunity for the bill to have been sent to the select committee, and for the people of New Zealand to give consideration to the issue raised by New Zealand First.

I would like to make some points on the bill that seem to have escaped the attention of most members of the House. Currently, section 4(2) of the Treaty of Waitangi Act 1975, which is the section in question, states: “The Tribunal shall consist of—(a) a Judge or retired Judge of the High Court”. Currently, the Waitangi Tribunal can consist of a judge or retired judge of the High Court, not only the Chief Judge of the Māori Land Court. Section 4(2) states further “or the Chief Judge of the Maori Land Court.” The Act already envisages that the Chief Judge of the Māori Land Court may not be the only possibility for chairperson of the Waitangi Tribunal. That possibility is already contained in the Act, which goes on to state “and the Judge is both a member of the Tribunal and its Chairperson, and is appointed by the Governor-General…”, etc. So currently when we talk about expertise and all those wonderful things, the person who can be the chairperson need not be a Māori person and need not be the Māori Land Court judge. That is already provided for in the Act, and that is something we should bear in mind.

Subsection (b), which is not part of this bill, states that the tribunal shall also consist of “Not less than 2 other members and not more than 16 other members …”. New Zealand First members made the point, when we presented the bill to the House, that the Act should be amended so that the chairperson should be either a retired judge of the High Court—I emphasise that he should be a retired judge of the High Court, and that is already provided for in the current Act—or a retired Chief Judge of the Māori Land Court. The only change that we are bringing into this legislation is that the person who is a judge of the Māori Land Court should be someone who is a retired Chief Judge of the Māori Land Court. It is as simple as that, yet for one reason or another the bill has been totally confused by so many members of this House.

I have heard speeches given tonight saying that if we remove the Māori Land Court judge and if we put in a retired Chief Māori Land Court Judge, as this bill states, we will lose expertise. Well, that must be nonsense, because a retired Chief Māori Land Court Judge is likely to know a lot more than a recently appointed Chief Māori Land Court Judge. That is the first point.

The second point, of course, is that irrespective of who the judge or chairperson might be, we have up to 16 other possible members of the tribunal. In terms of the very way in which they are appointed, subsection (2)(a) of that section states: “In considering the suitability of persons for appointment to the Tribunal, the Minister of Maori Affairs—(a) Shall have regard to the partnership between the 2 parties of the Treaty; and (b) Shall have regard not only to a person’s personal attributes but also to a person’s knowledge of and experience in the different aspects of matters likely to come before the Tribunal.” So every other member of the Waitangi Tribunal has to have that expertise.

So all these speeches I have been hearing in the last few days that have said there will be a lack of expertise are absolute nonsense. It suggests that the members who made those speeches have not actually read the Treaty of Waitangi Act 1975 and grasped the provisions of section 4(2)(a). Every other member of the tribunal must have that expertise. There would be no question of expertise being lost if the person were a retired High Court judge, because the only other person would be the retired Māori Land Court judge.

New Zealand First is saying that when one has a current serving judge, whether it is of the High Court or the Māori Land Court, there is inevitably a concern that someone is currently in the business of dealing with these lands and suchlike, and that “justice is not being seen to be done”. For some reason or another there is always a concern, especially when we have a disgruntled person before the tribunal, that someone is likely to say that a person is currently a Chief Judge of the Māori Land Court, and that he is looking after his mates and his family. Well, that is not possible under the proposal that is set out by New Zealand First to have a retired High Court judge, which is already provided for in the existing law, or a retired Māori Land Court judge. That is the only difference: a retired Māori Land Court judge is what we say should apply, assisted by two to 16 others. Many of the arguments I have heard suggest that members have not grasped the bill in any way, at all.

Of course, even Mr Finlayson, when he was speaking in this House on 21 May—and his speech appears in Hansard at page 16213—made the point, quite correctly, that what we have before us is a commission of inquiry. The Waitangi Tribunal is not a court. It does not make binding decisions; it is merely a commission of inquiry that gathers information and can then make a recommendation. Of course, in doing so it must have expertise in the areas concerned, and we are all in agreement with that. Mr Finlayson made a rather specious comment in his speech as to whether the person should be an accountant or a teacher. Obviously he has not read the bill very well, because we have made it clear that the person has to be a retired High Court judge, as is currently the case, or a retired Māori Land Court judge. As far as the second point that Mr Finlayson and other members have raised is concerned—and they have quite properly raised this point, because there was reference to the conflict of interest that might arise—Mr Finlayson in his speech, at page 16213, agrees that there can be a potential conflict of interest. I am concentrating on this speech because it has been made by a lawyer, and he should have thought these comments through clearly.

When we talk about conflicts of interest, and current judicial officers being involved in the Waitangi Tribunal, members have said that no one has ever complained about the current holders of the positions. Well, I have a letter here in front of me from a distinguished person. He mentioned that he heard Pita Paraone speaking, and said: “I express support for removing judges from the Waitangi Tribunal … and I found that in his area of New Zealand it is not well serviced by the Maori Land Court judges. This is because of the time that has been spent on Waitangi Tribunal hearings, so judges often come down to us totally ill prepared, having not even read court files till the morning of the hearing. Oh well, that’s what they expect in that part of New Zealand.”

One of the problems with the Māori Land Court judges, or even if a High Court judge was the chairperson concerned, is that if they are busy doing other Waitangi Tribunal work, they have to go back and do their Māori Land Court work. Well, they do not even prepare properly for the Māori Land Court work, according to this person who has written to New Zealand First.

So clearly in that respect, if we had a retired judge, he or she would be able to give his or her whole time to the position, rather than be a part-time worker, judge, or chairperson. We want a full-time person involved in the Waitangi Tribunal. We have the greatest respect for the work it does, which is why we want better quality time available for the person who chairs the Waitangi Tribunal. That does not seem to have been accepted by the other parties in this House. We are disappointed that the other parties in this House do not want to see a full-time chairperson of the Waitangi Tribunal. A full-time person would give all the time and devotion to the job that a full-time person can. A part-timer who is involved in things that might create potential conflicts of interest can clearly not do the job as well. New Zealand First wants to see the best possible representative as chairperson on the tribunal.

As far as some of the other issues are concerned, I think I have covered them. Once again I thank all members of the House for the contributions they have made, although I thought that the Māori Party was a little bit childish and repetitious, and clearly did not understand the situation. Finally, I was concerned at the comments made about the Principles of the Treaty of Waitangi Deletion Bill. If members could have just worked out that the only words being removed were “the principles of”, and that the words “Treaty of Waitangi” still stayed, then they would have had clarification. Thank you.