Tuesday, 14 September 2004

Tuesday, 14 September 2004

Tuesday, 14 September 2004

Mr Speaker took the Chair at 2 p.m.

Prayers.

Speaker’s Statements

Questions for Oral Answer—New Zealand First

Mr SPEAKER: Before I call questions for oral answer I advise the House that I made an error myself in the calculation of questions from New Zealand First last week so I will be allocating it an extra question today.

Questions for Oral Answer

Questions to Ministers

Care of Children Bill—Parental Responsibility

1. MURRAY SMITH (United Future) to the Associate Minister of Justice: Is he satisfied that the Care of Children Bill supports parents in fulfilling their responsibilities to their children; if so, why?

Hon DAVID BENSON-POPE (Associate Minister of Justice): Yes. In addition to establishing a principle that the welfare and best interests of a child are to be paramount, the bill acknowledges the primary responsibility of parents in the care of their children, and contains a number of provisions to support that role.

Murray Smith: Does he see the irony that the parents of a girl aged between 11 and 16 years are required to know whether she is fed, her whereabouts, that she is attending school, not drinking alcohol, not taking other drugs, and her progress at school, yet are excluded from information that is necessary to help them provide such care and support if she seeks an abortion or is sexually assaulted; if not, how does he answer the concerns of the loving mother of the 14-year-old girl who was raped and contracted a sexually transmitted disease, yet she was not told this critical information even though the events affected all those aspects of her daughter’s life?

Hon DAVID BENSON-POPE: I understand that most young women do involve their parents in such decisions and that it is best practice for health professionals to encourage them to do so. However, in the small number of cases where young women do not involve their parents there are good reasons not to, such as an abusive family environment. It is exactly that protection that the Supplementary Order Paper to the bill seeks to remove.

Moana Mackey: What does he believe would be the result of Parliament overturning the consensus of the last 27 years regarding the rights of young women to seek professional medical advice, to make their own decisions about pregnancy and abortion, and to have the privacy of that decision protected?

Hon DAVID BENSON-POPE: I am advised by health professionals, and agree with them entirely, that interfering with the current law will lead to more dangerous later-term abortions, the increased risk of dangerous self-induced abortions, and an increased risk of unsafe, illegal backyard abortions. That is also the advice of the New Zealand Medical Association and the Royal New Zealand College of General Practitioners, which between them represent some 5,000 health professionals in this country.

Judith Collins: What message did he think he was giving to paedophiles and child abusers when he said, in relation to a 12-year-old girl, that if she is sexually mature and she is pregnant, she is also a woman?

Hon DAVID BENSON-POPE: I meant that it would be quite wrong to assume that young women are not capable of being involved in this kind of decision making and that their views should not be ignored, as is being advocated by National, simply because of their age. Neither the current law, nor the royal commission of inquiry 27 years ago, thought that an appropriate course of action.

Dail Jones: Why does the Government intend to pursue this bill, which fails to deal adequately with the care of children in violent relationships; and if it does intend to continue with the bill, will there be a lengthy Supplementary Order Paper to deal with its failings?

Hon DAVID BENSON-POPE: I do not agree with the premise of the questioner. The answer to whether we will continue with the bill is yes.

Dail Jones: I raise a point of order, Mr Speaker. I asked whether there will be a Supplementary Order Paper, and I did not get a response to that question.

Mr SPEAKER: The member asked a previous question. The Minister has to address only one, if he wishes, as I ruled.

Dail Jones: I raise a point of order, Mr Speaker. Sometimes members ask three questions at the same time. I asked only two questions. Are you now saying that Ministers have to answer only one?

Mr SPEAKER: As I said before, that is up to the Minister.

Murray Smith: Does the Associate Minister accept that the Royal Commission to inquire into and report on Contraception, Sterilisation and Abortion, in recommending at page 277 of its 1977 report that a girl should have the final right of say on abortion, predicated that on the assumption that the parents would have had an opportunity not only to know of the situation, but to participate in the child’s counselling sessions?

Hon DAVID BENSON-POPE: I am aware of the recommendation of the royal commission that the removal of this right of a young woman would be cruel and unnatural.

Judith Collins: I seek leave to table a transcript of yesterday’s Morning Report programme, quoting the honourable Minister, David Benson-Pope, referring to a 12-year-old girl as being sexually mature and pregnant, and that she is then also a woman.

Mr SPEAKER: Leave is sought to table that document. Is there any objection? There is.

Hon DAVID BENSON-POPE: I seek leave to table three documents. The first one is a letter from the Royal New Zealand College of General Practitioners and the New Zealand Medical Association.

Mr SPEAKER: Leave is sought to table that document. Is there any objection? There is.

Hon DAVID BENSON-POPE: The second document is a public address web log of yesterday, referring to this issue.

Mr SPEAKER: Leave is sought to table that document. Is there any objection? There is.

Hon DAVID BENSON-POPE: The third one is a briefing paper from the American Civil Liberties Union in the United States on this matter.

Mr SPEAKER: Leave is sought to table that document. Is there any objection? There is.

Question No. 2 to Minister

Dr DON BRASH (Leader of the Opposition): This question stands in my name, and was originally addressed to the Prime Minister. It was accepted by the Clerk’s Office in that form. I was later advised that it had been transferred to the Minister of Justice. The question was addressed to the Prime Minister because it deals with an offer from the National Party to support the Government in very important legislation. Only the Prime Minister, I suggest, can answer that question appropriately. I therefore seek leave of the House to have the question transferred to the Prime Minister.

Mr SPEAKER: Leave is sought to do that. Is there any objection? There is.

Prisoners—Human Rights

2. Dr DON BRASH (Leader of the Opposition) to the Minister of Justice: Will the Government accept an offer from the National Party to pass through all stages this week a bill to prevent convicted criminals from collecting significant taxpayer compensation for alleged human rights breaches; if not, why not?

Hon RICK BARKER (Acting Minister of Justice): No, but the Government will look forward to National Party support when the Minister of Justice does bring a bill before Parliament. The Government wants to ensure that the bill is properly drafted.

Dr Don Brash: Has the Minister seen reports of lawyer Tony Ellis asserting that he is preparing to lodge claims for another 18 prisoners before the Minister could change the law; if so, why, in light of his earlier tough statements on the issue, would he not accept National Party help to facilitate legislation passing through all stages this week?

Hon RICK BARKER: I am aware that the lawyer referred to is filing applications. I have said that the Government will accept the National Party’s offer of support when the bill is properly drafted. There are complex issues that need to be gone through, and this Government will move expeditiously to bring a bill before the House.

Dave Hereora: Why is the Government moving on the issue of compensation payments made to inmates?

Hon RICK BARKER: Most New Zealanders would agree that the harm suffered by inmates pales into insignificance when compared with the harm done by offenders to their victims. That is why the Ministry of Justice is working on a law change that will ensure that victims, who have in all likelihood never been compensated for the harm done to them, have the first call on any such payments.

Ron Mark: Is it not the case that despite all the rhetoric we have heard from the Government as to how unacceptable this is, this Government has, in fact, faced this situation on numerous occasions, such as the case of the man in Dunedin who was let out of prison, got $40,000, and did not pay the $500 that he owed in reparation to the barber whom he had punched in the mouth; and can the Minister tell the House what, after a record of doing nothing for 5 years, it has taken him to move to do something now?

Hon RICK BARKER: This Government has worked very hard on law and order and justice issues in the last 5 years. The fact is that the number of police on the road is up, the number of people being caught and convicted is going up, and the number of people in prison is going up. In addition to that, the crime rate is falling. This Government has an outstanding record on law and order issues, and this issue will be fixed.

Nandor Tanczos: Can the Minister tell the House what would be just about a law that allowed a millionaire to murder, to be sentenced to prison, and to keep all of his or her assets, but that, if a poor person were to be tortured in prison, would remove his or her basic right to compensation?

Hon RICK BARKER: This is a matter for the courts to decide. If a person was a millionaire and did conduct a regime of torture, then the victim could very well take a common law case against him or her for compensation. This legislation is not going to change that at all.

Nandor Tanczos: I raise a point of order, Mr Speaker. I think the Minister may have misunderstood my question. My question was about a millionaire who murdered someone and went to prison. There was no reparation order granted, so none of that person’s assets would be lost, whereas an inmate who was in prison and was tortured would, under this proposal, lose his or her right to compensation.

Mr SPEAKER: I heard the question that was asked. I could see that it was open to two possible interpretations. The Minister chose which one he was going to give, and he is entitled to do so.

Marc Alexander: Can the Minister confirm that prisoners alleging breaches of human rights have a number of avenues for complaint, but that in most recent cases those avenues were not exhausted before the inmates took their case to the High Court; if so, will he change the law to ensure that prisoners must attempt to exhaust those other avenues for complaint before they start to hire lawyers?

Hon RICK BARKER: That could well be part of the consideration of the legislation that the Government comes back with. I think that is a very good suggestion, and we will take it into account.

Dr Don Brash: Has the Minister seen reports that state another 200 prisoners may be eligible for compensation from the Department of Corrections; if so, can we take it from his refusal to accept the National Party’s offer of immediate assistance that he has no intention of backing up his tough words with tough actions?

Hon RICK BARKER: That member has the answer completely wrong. This Government will take tough action. This Government will go through the legislation and get it right first time. We are not going to act rashly and quickly, and get it wrong—that may be the National Party’s style of doing it, but it is not the Government’s style.

Peter Brown: Noting those answers—and particularly the answer to my colleague Ron Mark as to why this legislation is taking so long—does the Minister recall that some years ago the Government paid out something like $340,000 on the instructions of the Hon Margaret Wilson, with much of it going to that ratbag who took to a police sergeant with a screwdriver; can I ask the Minister again why it has taken so long to address this issue?

Hon RICK BARKER: I cannot give the member a precise answer on that, but I can give him a precise answer on this: this Government will introduce law to fix this problem expeditiously—watch this space.

Marc Alexander: Does the Minister agree that if the Department of Corrections is unable to segregate prisoners due to claims that that breaches human rights, then allowing dangerous inmates to mix with the general prison population could also potentially breach the right of other prisoners and Department of Corrections staff to their safety; if so, whose rights should prevail?

Hon RICK BARKER: That is more a matter for the Minister of Corrections than for the Minister of Justice, but I would make two quick comments. Firstly, the Government does accept that prisoners have basic minimum rights and that those rights should be adhered to, and, secondly, that Department of Corrections staff must have the ability to control and manage prisoners in their care.

Dr Don Brash: Can the Minister explain why, when it has become clear that up to 200 prisoners may be able to claim up to $4.5 million in compensation from the Department of Corrections, he has refused to even consider the offer from the National Party to get legislation through immediately without delay, or can we take it that he simply does not care?

Hon RICK BARKER: This Government cares very much, but I want to make the point to the member that this was an issue—

Opposition Members: Ah! [Interruption]

Mr SPEAKER: I am not having Mr Power interjecting at me, and he knows he is out of order. [Interruption] He did. He interjected in the second person. He should not have done so, and I am warning him. He has done that a lot of times today. I want the Minister to now continue with the answer.

Simon Power: I raise a point of order, Mr Speaker. The comment that I made was: “Why doesn’t the Prime Minister answer?”.

Mr SPEAKER: No, that was not the comment that I ruled the member out of order on. He said: “Tell me …”, and all that sort of thing after that. I did not rule that comment out.

Hon Murray McCully: I raise a point of order, Mr Speaker. I seek your guidance on this matter, because Mr Power has just given the House a very firm undertaking as to what he did or did not say in the earlier exchange. You know that members are obliged to accept the word of other members in situations like that, but it appeared to me that you may have been casting doubt on Mr Power’s comment. I want to be assured that you were not doing that.

Mr SPEAKER: I was not. I did not rule the member’s interjection out when he referred to the Prime Minister; he is entitled to do so in that way. I ruled subsequent interjections out of order.

Hon RICK BARKER: I want to assure that member and the House that this Government does take this issue seriously. I would also like to make the observation that this issue arose weeks ago, and it is only now that the National Party is issuing press statements and jumping up and down in this House. I say to Don Brash that he should catch up with where the Government is at. We are miles ahead of him; we have done lots of policy work so far.

Dr Don Brash: What responsibility will the Minister take if a prisoner receives a compensation payout before his proposed law is passed, or will he just hope that it will be someone else’s problem when it is, in fact, paid?

Hon RICK BARKER: I am sure that the Minister of Justice takes this responsibility very seriously and, secondly—

Gerry Brownlee: I raise a point of order, Mr Speaker.

Mr SPEAKER: The member has not finished.

Gerry Brownlee: I raise a point of order, Mr Speaker. It is not appropriate for a Minister answering on behalf of a Minister—who is answering on behalf of the Prime Minister—to say that if the Minister who was initially to answer on behalf of the Prime Minister but who is not here was here, he would think that. Surely, he should answer as if he were the Minister of Justice.

Mr SPEAKER: And the first comments the member made were: “the Minister of Justice”, etc. I presume he was referring to himself.

Gerry Brownlee: I raise a point of order, Mr Speaker. What he actually said was: “I am sure that the Minister of Justice …”

Mr SPEAKER: Well, that is the same thing.

Gerry Brownlee: I would have thought that if he were answering for himself he would be a little more certain, rather than expressing some doubt about what he is saying.

Mr SPEAKER: That is not a point of order.

Hon RICK BARKER: This matter is taken very seriously by the Government. A good deal of policy work has been done, and I have given the member an assurance that legislation will be brought into this House as expeditiously as possible, and it will be thoroughly worked out. I make the point yet again that the Government had been working on this issue for 2 weeks before the National Party put out a press statement.

Nandor Tanczos: I raise a point of order, Mr Speaker. I ask you to clarify your earlier ruling. I realise I should have brought this point of order up immediately, but I was obviously hesitant to raise it because I do not want to be seen to be challenging your ruling in any way. You ruled, Mr Speaker, that my question could have been interpreted in a way consistent with the Minister’s answer. In my question—to give you the actual wording—I asked the Minister about a situation that allowed a millionaire to murder, to be sentenced to prison, and to keep all his or her assets. I am asking for your clarification, because I do not see how that question could have been interpreted in line with that answer. I am pushing the point because I think it is important that the Minister justify what is a significant proposal to remove the right of inmates to go to the law—a proposal that is not being questioned by any other party in this House. The Greens have an important role in standing up for these fundamental human rights.

Mr SPEAKER: I do not agree with the member. The Minister addressed the question by dealing with whether a civil action could be brought against the millionaire.

Nandor Tanczos: My question did not refer at all to whether civil proceedings could be brought against that millionaire.

Mr SPEAKER: I cannot carry on with this. I could not quite understand the member’s question. The Minister addressed it as he heard it. I adjudged that he addressed that question.

Community Safety—Policing

3. RON MARK (NZ First) to the Minister of Police: Does he have any concerns that police face impediments to working collaboratively with other Government agencies and the public to ensure community safety?

Hon Dr MICHAEL CULLEN (Leader of the House), on behalf of the Minister of Police: Generally, no.

Ron Mark: How acceptable is it to the Minister, in the case of Jesse Moore, who killed his father’s former partner only hours after he was freed on bail for attempting to kill his workmate, for the arresting officer to state: “From my point of view, this was a totally preventable homicide. If they had kept him in, done the assessment, recognised there was [a history of] bipolar disorder—there was no reason for that woman to die.”; if it is, what does he intend to do about it?

Hon Dr MICHAEL CULLEN: The statement was made by a senior police officer and clearly he felt there was a failure in the mental health system. That—problems with the mental health system—is, of course, not the responsibility of the Minister of Police. There is certainly no objection to be taken to the statement made by the police officer.

Ron Mark: Has the Minister read the police statement of intent that gives a commitment to “ensuring communities are adequately protected from crime through a whole-of-Government response that fits within the framework of the Crime Reduction Strategy.”; and can he tell the House how a totally preventable homicide was able to occur, given that rather noble statement?

Hon Dr MICHAEL CULLEN: I think that statement does represent the view of the Government. Judgments occur within the system, and sometimes those judgments are wrong, and sometimes those wrong judgments have tragic effects. That clearly was the case in this instance.

Hon Tony Ryall: Who will be held accountable for the granting of bail in this case?

Hon Dr MICHAEL CULLEN: The police opposed the granting of bail in this case, supported by the family. Clearly, in the end, the responsibility lies with the courts in the granting of bail.

Ron Mark: Is it not a fact that the reason we are seeing totally preventable homicides committed, such as in this case and the McNee case, is because the Minister, by his own admission, takes no active interest in his portfolio, asks no questions of the police regarding cases of high public interest, does not lobby vigorously enough to have changes made in other departments that affect policing, and, indeed, is quite divorced from policing to the extent that he is about to be replaced?

Hon Dr MICHAEL CULLEN: No, but what the Minister will not do is act illegally. As long ago as March 1993—and I would be interested to know what the circumstances were for the Solicitor-General being asked for this opinion—the Solicitor-General stated, at that point, in terms of the constitutional relationship between the Commissioner of Police and the Minister of Police: “The Minister may not direct the Commissioner in the latter’s duty to enforce the criminal law either in particular cases or classes of case.”

Employment Relations Act—Unions

4. Dr DON BRASH (Leader of the Opposition) to the Prime Minister: Does she stand by her statement that the amendments to the Employment Relations Act 2000 “will enable unions to be more effective and thereby give a stronger basis for recruitment.”; if so, how do the amendments give unions a stronger basis for recruitment?

Rt Hon HELEN CLARK (Prime Minister): Yes, I stand by the full statement, which was: “The passage of the forthcoming amendments to the Employment Relations Act cannot guarantee growth in union membership, but they will enable unions to be more effective and thereby give a stronger basis for recruitment.” That is because Labour believes that more effective rules around collective bargaining do benefit workers.

Dr Don Brash: Can she confirm that the bill now before the House proposes a $10,000 fine for breach of good faith where an employer offers terms and conditions to a non-union employee that are similar to those in the collective agreement; and can she tell the House what the objective of that provision could be, if it is not to undermine completely the notion of voluntary unionism in this country?

Rt Hon HELEN CLARK: My understanding, in terms of the penalty in the Act applying to a breach of good faith—a fine of $10,000—is that where an employer’s bad behaviour also has effectively sabotaged the employees’ collective employment agreement, and the only effective remedy is to set the terms and conditions of the agreement, the Employment Relations Act can do that. Bad faith is viewed very dimly on this side of the House.

Rod Donald: Why does the Labour Government support the right of New Zealand workers to bargain collectively, when it is undermining those very same workers by negotiating a preferential trade deal with Thailand—a country that refuses to ratify ILO Convention 98, thereby denying Thai workers the same rights to organise and bargain collectively?

Rt Hon HELEN CLARK: The Government does not accept for a moment that any trade agreement it enters into with the Government of Thailand will undermine workers’ rights there.

Paul Adams: Can she confirm that the provisions in the Employment Relations Law Reform Bill that make it a breach of good faith for an employer to do anything that induces people not to join a union include paying non-union staff the same or more than union members?

Rt Hon HELEN CLARK: I can only refer the member to the Minister’s statement yesterday that the select committee’s key recommendations clarify that employers can pay employees on individual agreements the same rates as are paid to employees on collective agreements, provided that the bargaining has been carried out in good faith.

Dr Don Brash: Can she confirm the announcement made by the Minister of Labour yesterday that in order to receive pay and conditions similar to those of their unionised colleagues the majority of New Zealand workers, who have chosen not to be members of unions, will now be forced either to join a union or to write out a sizable cheque to a union; if so, does she honestly believe that it is consistent with voluntary unionism?

Rt Hon HELEN CLARK: No, I cannot confirm any such thing. The Minister’s statement, which I have just read to the House, is quite specific that there is nothing to stop people from being paid the same, provided that good-faith provisions are followed. What I can confirm is that I heard on Morning Report this morning that the business community is broadly happy with the Employment Relations Act—a statement made by Dr Don Brash.

Rod Donald: I raise a point of order, Mr Speaker. I believe that the Prime Minister misinterpreted my question. I made it very clear I was talking about the rights of New Zealand workers being undermined. She commented about the rights of Thai workers being undermined, and I would like to give her the opportunity to answer the original question.

Mr SPEAKER: I was pretty generous in allowing the question, because it was right outside the scope of the original question. The Prime Minister did address the question, however.

Dr Don Brash: I raise a point of order, Mr Speaker. The Prime Minister has just told the House that she heard on Morning Report this morning evidence that the business community likes the Employment Relations Law Reform Bill. All the evidence that we have had before the select committee suggests that the business community does not like the Employment Relations Law Reform Bill. It seems to me that the Prime Minister has been quite misleading.

Rt Hon HELEN CLARK: I would be more than happy to table the member’s transcript from this morning where, when the member was asked about the Employment Relations Act, he said: “ Secondly, we would review the Employment Relations Act. I think the business community is broadly happy with that Act.”

Mr SPEAKER: The Prime Minister has attributed a statement to the Leader of the Opposition. If he disputes that the statement is his, he is entitled to do so.

Dr Don Brash: I raise a point of order, Mr Speaker. This whole question has been about the Employment Relations Law Reform Bill, or the amendments to the Employment Relations Act. I was asked on radio this morning what we would do with the Employment Relations Act, and I said the business community is broadly happy with it. It is very unhappy with the Employment Relations Law Reform Bill.

Hon Dr Michael Cullen: That may well be so, although, of course, its members did not say that at the time the bill was passed. The fact is that the Prime Minister, in her answer, referred to the Employment Relations Act.

Mr SPEAKER: Well, all I can say is this is a debatable matter.

Work and Income—Job Partnerships

5. MOANA MACKEY (Labour) to the Minister for Social Development and Employment: What reports has he received on Work and Income job partnerships with industry to assist people into employment?

Hon STEVE MAHAREY (Minister for Social Development and Employment): Work and Income has established job partnerships with five major industry groups. They are hospitality, road transport, retail, master plumbers, and roading. Job partnerships with industry create formal agreements ensuring industry skill and labour needs are met, and that people currently on the unemployment benefit gain sustainable job opportunities. Further partnerships are being developed in areas such as the meat industry and construction, all of which are helping push our unemployment numbers down to the lowest they have been in 20 years.

Moana Mackey: What other reports has he received on alternative measures to assist people off benefits and into real jobs?

Hon STEVE MAHAREY: I have seen reports that ask the unemployed to queue outside post offices, and reports about work-for-the-dole schemes and raising the age of eligibility for superannuation. None of those schemes would get one person a real job. We were, of course, promised a full welfare policy from the once-great National Party, but I now understand that divisions and splits in the caucus mean they have nothing to say.

Gerry Brownlee: I raise a point of order, Mr Speaker. Are you going to allow that sort of answer to stand? Whilst you might want to say that it is just a debating point, I think it invites disorder and it will make it very difficult for you to maintain a reasonable standard of behaviour in the House if Ministers are able to get away with that sort of free shot and total misrepresentation of the truth when they finish an answer.

Mr SPEAKER: Let me just say to the member—

Gerry Brownlee: I haven’t finished.

Mr SPEAKER: Well, I have. Points of order must be expressed tersely. I think what the member says has some validity in it and that the last comments made by the Minister were out of order. I take the point that the member makes.

Bill Gudgeon: Will the Minister tell the House why it is that after 5 years of a Labour Government we have so many people unskilled in literacy and numeracy, and can the Minister give a figure on those who fall into this category?

Hon STEVE MAHAREY: The identification of adult literacy as a major problem has, of course, been a focus of this Government. We understand that literally hundreds of thousands of New Zealanders need their skills lifted, which is exactly why, over the last 5 years, we have spent tens of millions of dollars—now hundreds of millions of dollars—lifting the skill base of New Zealand. We are focused heavily on adult literacy and numeracy.

Employment Relations Act—Individual Agreements

6. Dr WAYNE MAPP (National—North Shore) to the Minister of Labour: Why has the Government introduced a bill making it a breach of good faith for an employer to enter into an individual agreement which has the effect of undermining a collective agreement, given the statement by Graeme Harrison, chairman of ANZCO Food Limited, that in the “bad old days” the unions “led by people not employed on site, effectively controlled the plant yet were not interested in addressing issues to ensure its survival.”?

Hon PAUL SWAIN (Minister of Labour): The objectives of the Employment Relations Act are, among other things, to promote collective bargaining while maintaining the integrity of individual choice. The Employment Relations Law Reform Bill is clear, therefore, that individual employment agreements should reflect genuine individual bargaining. However, the bill also makes it clear that employers may pay employees on individual agreements the same, or substantially the same, as those on collective agreements, provided the bargaining is carried out in good faith. These are not the “bad old days”.

Dr Wayne Mapp: Why did the Government change clause 19 of the bill in the Transport and Industrial Relations Committee so that employers now face a penalty of up to $10,000, simply because they offer an employee an individual contract that might have the effect of undermining a collective contract, when all employers want to do is to ensure that employees on individual contracts get a reasonable rate of pay?

Hon PAUL SWAIN: As I have said before, the bill makes it clear that employers can pay employees on individual contracts the same, or substantially the same, as those on collective contracts, provided they act and bargain in good faith. What can be wrong with that?

Helen Duncan: Has the Minister seen any reports suggesting that the Employment Relations Act is working well?

Hon PAUL SWAIN: Yes, I have seen a report from someone who stated that he thought the business community was broadly happy with that Act. This contrasts sharply with comments made in October 2003 by the same person, that the Employment Relations Act would be scrapped. Those comments come from Dr Don Brash, the leader of the National Party. It seems that the Employment Relations Act was to be gone by lunchtime but now may be here until teatime.

Dr Wayne Mapp: Why would the Government legislatively force employers to conclude collective agreements that effectively promote multi-employer collective agreements, when it is precisely those types of agreements that caused so many problems on the waterfront when there was a single national award that led to huge strikes?

Hon PAUL SWAIN: I understand from my colleague who is the chairman of the select committee that multi-employer collective agreements were the subject of a lot of submissions. One of the things the employers objected to was that employers would be forced to go to the first meeting, and the select committee in its wisdom decided to take out that provision.

Dr Wayne Mapp: Is the Minister aware that the Government has now made it a requirement of good faith to force employers to conclude a collective agreement, even though an employer may oppose or object in principle to a collective agreement, and has added a new penal provision with a $10,000 fine?

Hon PAUL SWAIN: The answer is yes. The employers are required to negotiate in good faith to fulfil one of the objectives of the Employment Relations Act, which the leader of the National Party now supports and says is working well—that is, to promote collective bargaining.

Ministers—Confidence

7. RODNEY HIDE (Leader—ACT) to the Prime Minister: Does she have confidence in all her Ministers, and what is her view on her Minister of Police telling Parliament the police are “unable to comment” on whether the Prime Minister has been interviewed by the police investigating the Prime Minister’s speeding motorcade?

Rt Hon HELEN CLARK (Prime Minister): Yes, and the Minister’s comment was appropriate.

Rodney Hide: In respect of the Prime Minister’s expectation that her Ministers be upfront and honest, will she advise whether she herself has been interviewed by the police investigating the speeding motorcade; and if she has not been interviewed, what sort of whitewash investigation is under way here?

Rt Hon HELEN CLARK: As the member knows, Ministers are not commenting on matters currently before a police investigation.

Hon Tony Ryall: Has the Prime Minister at any time had knowledge that the police were exceeding the speed limit in meeting her travel arrangements to the rugby?

Rt Hon HELEN CLARK: I repeat that the Government is not commenting on any matters before a police investigation.

Hon Ken Shirley: In light of the Prime Minister’s expressed confidence in all of her Ministers, does she support the expressed views of the Minister for Rural Affairs, who is promoting public access over New Zealand farmland, and does she concede that in some people’s eyes this is akin to the public having free access to roam over the backyard of her Mount Albert villa?

Rt Hon HELEN CLARK: Nothing that the Minister for Rural Affairs, or any member of the Government, said suggests that a right to roam is being considered. However, the Minister commissioned an excellent report from John Acland in a reference group. We have been working on how to proceed with the general spirit of that report.

Heather Roy: Given the Prime Minister’s confidence in her Minister of Health, why did the Minister of Health oversee a cut in the real per-person health spending in the 2001-02 financial year, and why did the Minister of Health underspend last year’s health operating budget by over $188 million when she has 31,000 Kiwis waiting for operations, on active review?

Rt Hon HELEN CLARK: It is clear these questions are becoming an opportunity for people to raise any subject under the sun without notice. The Minister of Health has an excellent record in getting waiting times down, and in this Budget we have provided for the number of hip and knee-joint operations to be doubled over the next 4 years, helping many elderly people.

Rodney Hide: I raise a point of order, Mr Speaker. That question was entirely in order. If the Prime Minister does not want to front up—

Government Members: Aw!

Mr SPEAKER: I am about to ask somebody to leave.

Rodney Hide: I ask the Speaker not to ask the Prime Minister to leave, because we are so happy to have her here.

Mr SPEAKER: Will the member please carry on with the point of order or it will be the member who leaves.

Rodney Hide: That question was entirely in order, and you accepted it. The Prime Minister, rather than taking a point of order and questioning it, directed you, saying: “Oh, well, what’s now happening is we’re having these questions without notice put down.”, as though suggesting they were somehow out of order. Never once—I know she said some words—did she address the question.

Mr SPEAKER: First of all, the member is wrong. I allowed the question because it was in order. However, if members ask supplementary questions in such generality they cannot expect a detailed answer to every point made.

Stephen Franks: Why does the Prime Minister claim confidence in all her Ministers when the Minister of Justice has just spurned Dr Brash’s offer this week to save the taxpayer from more outrageous payments of damages to prisoners, and, of course, the accompanying millions in lawyers’ fees, and to what extent is this reluctance to intervene owing to embarrassment that these human rights damages awards are the product of naked judicial activism so long favoured by her friend the Attorney-General?

Rt Hon HELEN CLARK: I fear on this occasion that I cannot blame it on judicial activism. The Government will be very happy to accept the support of any party in the House for the properly drafted legislation it brings to the House.

Deborah Coddington: What is her opinion on her Minister of Health’s advice that Christchurch families, whose children were examined by a medical officer of health at Glenelg Children’s Health Camp, should take their complaints to the Medical Council, and is this not a case of the Labour Government trying to avoid the legal implications that the Ministry of Health warned of in its confidential briefing of October 2003 by dumping the problem on a doctor who has not been registered for 8 years?

Rt Hon HELEN CLARK: This House has spent endless time since I have been elected to it looking at medical disciplinary procedures and the independent Health and Disability Commissioner’s legislation. Both are entirely appropriate places to direct such complaints.

Dr Muriel Newman: In light of her confidence in the Minister of Police, what is her response to reports that police officers are being pulled away from emergency response duties, forcing them to act as untrained guards to the hundreds of prisoners being kept in dangerous and chaotic conditions in police cells?

Rt Hon HELEN CLARK: My response is that the sooner the new cells are ready, the better.

Rodney Hide: In light of her Minister’s inability, in 5 years, to draft legislation to stop the prison payouts, will she accept the National Party’s offer of support this week if ACT drafts this legislation this week?

Rt Hon HELEN CLARK: I do not expect the ACT party’s research unit is any more capable of drafting the legislation than the National Party’s research unit.

Rail Services—Planning

8. Hon MARK GOSCHE (Labour—Maungakiekie) to the Minister of Transport: What plans, if any, has the Government for rail in New Zealand?

Hon PETE HODGSON (Minister of Transport): I am delighted to announce today that this Government is releasing a draft rail strategy for public comment. The strategy details how and why we are to invest an initial $200 million to upgrade and restore the rail network. We want more passengers and freight to go by rail, for the benefit of business, the economy, local communities, and the environment, and to help reduce congestion on our roads.

Hon Mark Gosche: Has the Minister seen comment that “The Government has no place in the rail business.”, and what is his response to such comment?

Hon PETE HODGSON: Yes, I have. It reflects an approach of starving our transport infrastructure of investment for ideological reasons. It fits with one of the most incompetent privatisations ever seen; our rail system was sold for a song with no guarantees as to service or safety, the profits made a rapid exit to the Lake Geneva shoreline, and subsequent investment was minimal. Who would do that? The answer, of course, is the National Party.

Peter Brown: Is the Minister aware that there is another alternative to using congested roads, and that is coastal shipping, and what is he doing about enhancing or developing coastal shipping?

Hon PETE HODGSON: I certainly am aware of that alternative, and I think the member makes a very good point. It is very clear that a sustainable inshore or coastal shipping service is in New Zealand’s best interests, and I do not know of anyone who disagrees with that.

Jeanette Fitzsimons: How many years, and how much taxpayers’ money, does he expect it to take to restore our rail system to the state it was in before Ruth Richardson sold it, and Fay Richwhite milked it dry?

Hon PETE HODGSON: It has been 11 long years since that incompetent decision was taken, and this Government will have the rail system back on its wheels well within that time.

Roading—Tolling

9. PETER BROWN (Deputy Leader—NZ First) to the Minister of Transport: Does he agree with Transit New Zealand chairman, David Stubbs’, reported comments that “with the nationwide gap in funding for new roads, Transit’s approach tended to be that if a project can be tolled, then toll it.”; if not, why not?

Hon PETE HODGSON (Minister of Transport): No. I am required in law to assess whether any proposal for road tolling has community support, and meets the Government’s transport objectives. It is those criteria, rather than funding, against which I must make each decision.

Peter Brown: Do I take it from the Minister’s comment that if there is no public support for tolling the second bridge in Tauranga, the second bridge will go ahead funded by Transfund?

Hon PETE HODGSON: No, the member cannot take that conclusion from that statement.

Lynne Pillay: What comments has the Minister read on whether tolling should be used on New Zealand roads?

Hon PETE HODGSON: I have seen two reports. One states: “Tolls can support borrowing to provide additional funds for roads.”, and the second states: “I am not looking to raise additional money from the tolls.” The source of those contradictory positions is the leader of the National Party, Dr Don Brash.

Hon Maurice Williamson: Given that one of the most-vaunted aspects of the Land Transport Management Act was that it would bring the private sector into New Zealand roading—we are one of the few countries that still does not have private sector roading—and that tolling would be introduced by the private sector, can he tell the House how many private sector projects we now have, and when he expects any more to come on stream?

Hon PETE HODGSON: The roads are, of course, built by the private sector now; it is just that they are built under contract and paid for with taxpayer funding. Should the private sector wish to stump up with its own money and go through a community support programme to see whether a road can be tolled, then we might get our first one away.

Jeanette Fitzsimons: Does he have in mind any funding to improve the efficiency with which existing roads are used—for example, providing vehicles that would transport 40 people rather than one—and is he convinced that Transit has fully accepted the new priorities under the new Act?

Hon PETE HODGSON: The member asks a very good question, and the best answer comes from an examination of likely expenditure trends from Transfund over the next 10 years. If one takes a careful look at, for example, road passenger transport, it is very clear that Transfund will put in place the Government’s policy of a sustainable transport system.

Larry Baldock: Would the Minister have any advice about how counterproductive and detrimental to the interests of Tauranga it would be for some individuals to stir up opposition to tolling for personal political interest, in the light of his statement reported in the New Zealand Herald yesterday: “Even if the Tauranga harbour bridge were declared a state highway, that did not mean the $190 million harbour link project would be built as a non-toll road, Mr Hodgson warned. ‘You would still have this thing that looks like a tolling project, barks like a tolling project and probably is a tolling project.’ ”?

Hon PETE HODGSON: The conclusion of that quote is that I asked whether there was community support for it, and that does remain the question. The point that is often made in this House is that somehow the Government can borrow to fund that particular scheme without having any way of servicing the loan. Frankly, that is a resurgence of social credit.

Peter Brown: Will the Minister tell us precisely whether, if the Tauranga community says a firm “No” to tolling, the bridge project will have to wait, or will it be funded by some alternative method?

Hon PETE HODGSON: At the moment the bridge is on nobody’s plan, so I guess that it will not happen soon unless it is able to be tolled or part-funded. However, the decision on whether it should be tolled is mine, and that, in turn, depends on a high level of community support, or on the bridge being put into a regional land transport strategy.

Peter Brown: Does the Minister acknowledge that the harbour bridge in Tauranga services the foremost export port in this country, that the current bridge has been paid for umpteen times by Tauranga residents, and that it would be immoral and unethical to impose a toll on the second bridge?

Hon PETE HODGSON: In respect of the importance of the Port of Tauranga to the Bay of Plenty and to New Zealand, and, indeed, in respect of the very significant growth being faced by the Western Bay of Plenty, I strongly agree with the first part of the member’s comments.

Employment—Small to Medium Businesses

10. MARK PECK (Labour—Invercargill) to the Minister for Small Business: What data has he received on the contribution that small to medium enterprises have made to employment in the economy?

Hon JOHN TAMIHERE (Minister for Small Business): I am advised that of the net 193,980 full-time employment positions created between 1997 and 2063, 162,150 of those positions will have been created by enterprises employing 19 or fewer fulltime equivalents. This data will be included in a report produced by the Ministry of Economic Development and Statistics New Zealand, which will be released next week. The report is entitled SMEs in New Zealand: Structure and Dynamics.

Mark Peck: What other evidence has the Minister seen of strong growth in the small to medium enterprise sector?

Hon JOHN TAMIHERE: According to the National Bank’s July Small Business Monitor, small business growth has exceeded that for the economy as a whole for eight quarters in a row. Annual average growth for the small business sector was estimated at 4.7 percent, compared with 3.6 percent overall. This wealth of evidence runs contrary to yesterday’s claims by the Auckland chamber of commerce—the bow-tied one—that small to medium enterprises appear to be passing up growth opportunities because of their inability to meet red tape and compliance tasks. I am yet to receive any concrete evidence to support this claim.

Paul Adams: Is the Minister concerned, given the large contribution small to medium enterprises make to employment, about the effect their high failure rate of approximately 75 percent has on workers’ feeling of job security or lack thereof; if so, what does he intend to do about it?

Hon JOHN TAMIHERE: I would be grateful if the member could listen to the answer to the original question in regard to the number of full-time employment positions being created by small businesses. They are going forward in leaps and bounds in the engine room of the economy. More particularly, I would like to table a note after this question, which indicates a number of difficulties in jumping to his conclusion that there is a so-called 75 percent death rate. That is not correct.

I seek leave to table a document created for me that explores the difficulty people would have in jumping to conclusions wrongfully.

Mr SPEAKER: Leave is sought to table that document. Is there any objection? There is.

Thailand—Trade Agreement

11. ROD DONALD (Co-Leader—Green) to the Prime Minister: When she met with the Thai Prime Minister Thaksin Shinawatra in July to discuss progress on a trade deal between New Zealand and Thailand, did she raise any concerns regarding environmental and labour standards and human rights abuses in Thailand; if not, why not?

Rt Hon HELEN CLARK (Prime Minister): The New Zealand Government has raised trade and environment issues in the context of the negotiation of the trade agreement, and the approach we are taking was canvassed in my meeting with Mr Thaksin.

Rod Donald: Why is her Government negotiating a preferential trade deal with a country that routinely exploits child workers and flouts International Labour Organization conventions on child labour?

Rt Hon HELEN CLARK: The Government acts in the belief that if Thailand’s economy grows through trade, its living standards will rise and Thais will be able to negotiate better pay and conditions.

Rod Donald: Did the Prime Minister ask Prime Minister Thaksin what benefit he and his family are likely to gain from a preferential trade deal with New Zealand, given that they personally own at least 10 percent of the Thai stock exchange, as well as vast assets in unlisted companies?

Rt Hon HELEN CLARK: No.

Rod Donald: Did she ask him why he suppressed information about the bird flu outbreak in Thailand until after it had spread to neighbouring countries and infected large numbers of workers; and is that the kind of behaviour her Government rewards with a preferential trade deal?

Rt Hon HELEN CLARK: No, nor can I see any relationship of that to the primary question.

Rod Donald: Is the Prime Minister confident that the removal of the 19 percent tariff on this Nike jacket, which was made in a Thai sweat shop and sells in New Zealand at Rebel Sport for $160, would reduce its retail price and lift the 78c hourly wage rate paid to the women clothing workers who made it; if not, why not?

Rt Hon HELEN CLARK: Whether that reduces the price will be entirely a matter for competitive forces here in New Zealand.

Hon Dr Michael Cullen: Has the Prime Minister any reason to believe that if New Zealand took action to prevent the sale of products produced in Thailand, that may reduce the 78c-an-hour wage rate?

Rt Hon HELEN CLARK: It almost certainly would do so if the Thais could not export their goods here.

Rod Donald: I seek leave to table an article from the Melbourne Age from 3 July—[Interruption]

Mr SPEAKER: I will ask Mr Donald to start again.

Rod Donald: I seek leave to table an article from the Age from 3 July, which highlights the conflict of interest Prime Minister Thaksin has in relation to trade deals.

Mr SPEAKER: Leave is sought to table that article. Is there any objection? There is.

Question No. 12 to Minister

Hon TONY RYALL (National—Bay Of Plenty): I seek leave to hold this question over until Mr Hawkins is in a position to be in the House to answer it.

Mr SPEAKER: Leave is sought to hold the question over. Is there any objection? There is.

Question No. 11 to Minister

Hon RICHARD PREBBLE (ACT): I raise a point of order, Mr Speaker. It goes back to the leave sought by Mr Donald. I want to indicate to him that I am quite happy to give leave for him to table the jacket. I would not like to think that the Green Party was taking advantage of sweat labour in Thailand.

Mr SPEAKER: Unfortunately, as the member knows, that is not quite a point of order.

Bail—Offending

12. Hon TONY RYALL (National—Bay Of Plenty) to the Minister of Police: Has he received any reports from police on offending rates while on bail; if so, what do those reports say?

Hon Dr MICHAEL CULLEN (Leader of the House), on behalf of the Minister of Police: I am advised that the police have not provided any recent reports on offending rates while on bail. The most comprehensive report that I am aware of is a report prepared by the Ministry of Justice, which was published in January 2003. The report showed that the number of violent cases that involved a remand on bail almost doubled between 1990 and 1999.

Hon Tony Ryall: Has he sought any background or other briefing on the Jesse Moore case to assist him in the House this afternoon; if so, what does that information detail?

Hon Dr MICHAEL CULLEN: I have not had time to have a specific briefing on the Jesse Moore case in any form of detail.

Hon Tony Ryall: Does he think that the Bail Act is putting public safety first, in light of the reported incident, and does he think any amendments are needed to the Bail Act when bail can be granted to a man in an obvious acute psychotic state?

Hon Dr MICHAEL CULLEN: I think the purpose of the Bail Act is quite clear in that regard. As I indicated in an answer to a previous question, the decision was made by the court. The police opposed bail—backed by the family in that instance. If there was any problem, clearly it was in terms of the mental health elements. It is doubtful, therefore, that any different result would have occurred unless there had been a different judgment by mental health professionals.

Hon Tony Ryall: On what basis does the Minister draw that information about the performance of the mental health authorities in this case, and does he fear that further action may be needed to investigate this case to prevent another Burton situation?

Hon Dr MICHAEL CULLEN: The only information I have to hand is the comments by a senior police officer in the newspaper in this instance. I have no other information to hand.

Questions to Members

Foreshore and Seabed Bill—Submissions

1. GERRY BROWNLEE (Deputy Leader—National) to the Chairperson of the Fisheries and Other Sea-related Legislation Committee: How much time has the committee set aside to listen to submissions on the Foreshore and Seabed Bill?

RUSSELL FAIRBROTHER (Chairperson of the Fisheries and Other Sea-related Legislation Committee): Yesterday the committee confirmed the dates of 15 September, 16 September, 20 September, and 4 October to hear submissions.

Gerry Brownlee: On which of those dates will Labour MP Nanaia Mahuta present her oral submission to the committee?

RUSSELL FAIRBROTHER: The committee resolved to receive late submissions with a cut-off date of 12 August, and to receive no submissions after that. Ms Mahuta’s submission was received on 26 August.

Mr SPEAKER: The member was asked on what date the submission would be heard.

RUSSELL FAIRBROTHER: It was received outside the parameters set by the committee, so at this stage there is no date set.

Hon Ken Shirley: Could the chairman tell the House how Nanaia Mahuta’s submission managed to meet the criteria, when some 3,000 submitters were denied the opportunity to be heard by the committee?

RUSSELL FAIRBROTHER: It did not meet the criteria.

Mr SPEAKER: The member said that it was not going to be heard. He said it did not meet the criteria.

Civil Union Bill—Submissions

2. LARRY BALDOCK (United Future) to the Chairperson of the Justice and Electoral Committee: What criteria did the committee use to determine which submitters out of the hundreds of submissions received on the Civil Union Bill would be allowed to submit orally?

TIM BARNETT (Chairperson of the Justice and Electoral Committee): The Justice and Electoral Committee agreed on, and is implementing, the criterion that every submitter who requested to be heard would be invited to submit orally. Therefore, we will be hearing up to 389 submissions.

Larry Baldock: Can the chairperson advise the House how many submissions have been received on the Civil Union Bill to this date—both complete submissions and form, 1-page submissions?

TIM BARNETT: Certainly. The committee has received 3,263 individual submissions and 2,907 form submissions.

Urgent Debates Declined

Dioxin Contamination, Paritutu—Government Response

Mr SPEAKER: I have received a letter from Sue Kedgley seeking to debate under Standing Order 373 the finding of above average dioxin levels in 24 Paritutu residents. The full details of this finding were made available after the House met on Thursday, so it is a particular case of recent occurrence involving the administrative responsibility of the Government. However, the results were anticipated before the House sat last Thursday, to the extent that two oral questions on this matter were lodged and answered that day. In those circumstances, I am not persuaded that there should be a special debate on it today. The application is declined.

Bills

Maori Fisheries Bill

In Committee

Debate resumed from 7 September.

Part 2 Establishment and review of new entities (continued)

PHIL HEATLEY (National—Whangarei): When we were previously debating Part 2, I mentioned to the Committee that there was a great deal of interest in Supplementary Order Paper 253, which I had submitted to the Committee, and that members were researching. It is to do with the appointment of directors of Aotearoa Fisheries Ltd. A number of iwi came to the Fisheries and Other Sea-related Legislation Committee during the submission process, and said: “Our people feel isolated from the activities of Aotearoa Fisheries Ltd. That particular company structure generates huge income currently, it has the potential to generate a huge income in the future, and it is a strategic asset of individual Māori and collective Māori in whānau, hapū, and iwi groups, yet we feel isolated from it.”

At the moment, as it stands, the directors of Aotearoa Fisheries Ltd are selected by Te Ohu Kai Moana Trustee Ltd directors, who in turn are selected by Te Kāwai Taumata trustees, who in turn are selected by an iwi electoral college, which in turn is selected by Māori from individual iwi. In other words, there are five layers between individual Māori beneficiaries of this settlement and the directors of Aotearoa Fisheries Ltd. My Supplementary Order Paper cuts out one significant layer, and that is Te Ohu Kai Moana Trustee Ltd.

What I am saying—and members will see this in the Supplementary Order Paper—is that, given that Te Kāwai Taumata select the directors of Te Ohu Kai Moana Trustee Ltd, which is its sole responsibility, why cannot Te Kāwai Taumata also at the same time select the directors of Aotearoa Fisheries Ltd? Rather than selecting the directors of Te Ohu Kai Moana Trustee Ltd and having them choose the directors of Aotearoa Fisheries Ltd, why does Te Kāwai Taumata not do that directly? The Supplementary Order Paper is a mechanism that addresses that particular issue. So that would take away one layer.

Members will note that I have not introduced any amendments in the Supplementary Order Paper that ask for the reporting-back mechanism to go through Te Kāwai Taumata and avoid processes that would be overseen by Te Ohu Kai Moana Trustee Ltd. In fact, by leaving out those clauses, I have left the responsibilities for ensuring there are audits of Aotearoa Fisheries Ltd—that is Sealord’s, and so forth—and that accountability and the reporting-back mechanism within Aotearoa Fisheries Ltd still go through Te Ohu Kai Moana Trustee Ltd. There is no reason why Te Ohu Kai Moana Trustee Ltd cannot continue with those particular functions. So I am happy for it to be involved in the auditing, and the overseeing of accountability and of the reporting back. But what I am not happy with is it being involved in the appointment of the Aotearoa Fisheries Ltd directors. The question has to be asked: why is it involved in the appointment of those directors?

In amongst the clauses there is some check to ensure that a chairman of Aotearoa Fisheries Ltd cannot be a chairman of Te Ohu Kai Moana Trustee Ltd, and I think that is great, I acknowledge that, and we support it; that a deputy chairman of Aotearoa Fisheries Ltd cannot be a deputy chairman of Te Ohu Kai Moana Trustee Ltd, and I also applaud that; and that a deputy chairman of either cannot be a chairman of Te Ohu Kai Moana Trustee Ltd or Aotearoa Fisheries Ltd, and we applaud that. But we think it should go even further. The directors of Te Ohu Kai Moana Trustee Ltd should not select the directors of Aotearoa Fisheries Ltd. They should not select the directors who will run Sealord’s. In our view, there is no reason why this particular body—this college, Te Kāwai Taumata, that selects the board of directors of Te Ohu Kai Moana Trustee Ltd—cannot also select the directors of Aotearoa Fisheries Ltd.

Why should it select the directors of Te Ohu Kai Moana Trustee Ltd, and Te Ohu Kai Moana Trustee Ltd, in turn, select the directors of Aotearoa Fisheries Ltd? We can take out a whole layer between Māori beneficiaries on the ground, who should receive the benefits of the settlement, and a major settlement asset, which is Aotearoa Fisheries Ltd.

That is the basis of my Supplementary Order Paper, which I commend to the House. Certainly, if any questions are raised by other speakers, I will seek another call to address those. I do want to emphasise the fact that the amendments in the Supplementary Order Paper refer to the selection of the directors of Aotearoa Fisheries Ltd. They do not address the working back of the accountability back through Māoridom, at all. I do not see it as the role of Te Kāwai Taumata to be involved in auditing, motivating accountability, and motivating the report back. Te Ohu Kai Moana Trustee Ltd can still do that through the latter clauses of Part 2.

But I do see it as the role of Te Kāwai Taumata to appoint the directors of Aotearoa Fisheries Ltd. In fact, if one can argue strongly that that particular electoral college, Te Kāwai Taumata, is in a good position to select directors of Te Ohu Kai Moana Trustee Ltd, then one can certainly argue that it is in a position to select the directors of Aotearoa Fisheries Ltd. I cannot think of any good reason why that electoral college cannot do that. I know that individual Māori beneficiaries and iwi around the country will applaud the idea of having a much closer association with the most significant asset, as a whole, in this settlement. Of course, that most significant asset is reaching close on $300 million to $400 million worth of value. That is not just in quota shares, but in buildings, trucks, fishing vessels, and all sorts of assets. I cannot express enough the anxiety out there amongst Māori that they need a close association with and close accountability to the directors of that particular company. As members will see in the Supplementary Order Paper, I am addressing clauses 23 and 24, and clause 40 in particular.

METIRIA TUREI (Green): The Green Party has put forward Supplementary Order Paper 260, which proposes two amendments to Part 2. The first is to omit clause 38(1)(b), and relates very closely to the Greens’ amendment to clause 15 that was lost by only a few votes. Clause 38(1)(b) enables Te Ohu Kai Moana Trustee Ltd to make or amend rules “that affect the criteria or other requirements applying to the constitutional documents of mandated iwi organisations ...”.

Earlier, the Greens expressed enormous concern at that power being provided to Te Ohu Kai Moana Trustee Ltd, which enables it to make any changes to the constitutional requirements or arrangements of mandated iwi organisations. There is no time limit on the use of that power, so Te Ohu Kai Moana Trustee Ltd can make changes to the requirement that a mandated iwi organisation has to meet, at any time until the organisation applies for status or recognition. Those changes can be made at the time a mandated iwi organisation applies for recognition, and at any time after it has already received recognition, as well as its assets. That means it is possible that a mandated iwi organisation will, time after time, continually have to amend its constitutional requirements and arrangements, to ensure it is able to access the assets that form a fundamental part of the settlement in the bill.

The settlement deed that led to the creation of this bill after a considerable number of years was designed to enable iwi to have control over their fisheries and fisheries assets, but the power that Te Ohu Kai Moana Trustee Ltd is given in this bill means that, in the end, it will have a considerable amount of control over the way mandated iwi organisations operate. Mandated iwi organisations are responsible for managing the asset-holding companies that, in the end, hold their fisheries assets. Te Ohu Kai Moana Trustee Ltd is also the sole voting shareholder of Aotearoa Fisheries Ltd, which is the company that, in effect, will hold 50 percent of the settlement assets that were designed originally to be distributed to iwi. That will put the asset-holding companies of the mandated iwi organisations and Aotearoa Fisheries Ltd in direct competition, in a very vulnerable and volatile industry. This bill also gives the sole voting shareholder of Aotearoa Fisheries Ltd the power to alter the constitutional arrangements of its competitors.

That is not good law. There are no restrictions on that power. As I have said before, I do not necessarily expect Te Ohu Kai Moana Trustee Ltd to abuse that power but, none the less, the opportunity for that is there in the bill. If there were some means of providing some form of restriction on the use of that power, a greater restriction on its use, then perhaps it might be justifiable in the context of ensuring that mandated iwi organisations have a certain set of requirements and can then get their fisheries assets. But there is no justification for allowing Te Ohu Kai Moana Trustee Ltd to continue to have that power after the mandated iwi organisations have already been established. All that does is put the mandated iwi organisations in an incredibly vulnerable position of never knowing when the goalposts are going to be changed, and of always having to keep in reserve the possibility that they may have to rearrange their constitutional arrangements. There is some provision for mandated iwi organisations and iwi to know about those changes before they are made but, in the end, it is still Te Ohu Kai Moana Trustee Ltd that will make the final decision.

The Greens do not consider there is any justification for Te Ohu Kai Moana Trustee Ltd to have such an unlimited, unfettered, unilateral power, so we urge members to support our amendment to clause 38. That will ensure that Te Ohu Kai Moana Trustee Ltd can still make and change rules about procedures around settlement quota, can still make rules about access to iwi registers, and can still be capable of establishing the rules prior to the recognition through the bill of mandated iwi organisations, but it will also ensure that Te Ohu Kai Moana Trustee Ltd has no ongoing, unlimited, and unfettered power to continually change the rules.

Hon KEN SHIRLEY (ACT): The ACT party opposes all this legislation. We particularly oppose Part 2, which is under discussion at this time. Anyone listening to this debate, and anyone in the Chamber who has not gone through the detail from the Fisheries and Other Sea-related Legislation Committee, would have already come to the conclusion that Part 2 establishes an extremely complex, multi-tiered, convoluted commercial structure. One surely must ask the basic question of why we cannot use normal commercial law to deal with these company structures. Instead the Crown is legislating for convoluted, multi-tiered, cumbersome structures in a commercial sense, that confuse everyone who looks at them. Iwi after iwi told the select committee that they do not want them. Inevitably, the Crown will end up as the meat and mustard in the sandwich. When some of these iwi organisations fail—and they will—everyone will say: “Oh, we failed because of these burdensome structures imposed on us by Parliament.” One would have to say that is a legitimate position for people to take.

Another aspect is that, along with these iwi electoral colleges, there are all sorts of unique situations. In any commercial organisation where there is discontent, the discontented leave. They vote with their feet. The problem with this structure is that malcontents are locked in. There will always be malcontents in the commercial world, and under this structure they are locked in for all time, under a structure they particularly did not want or embrace and with thousands of excuses as to why it will not work or deliver in an optimal manner. What we do by imposing a structure of this nature, is we diminish the value of the asset. That is perhaps the most pernicious aspect of this bill. It diminishes the value of the asset. That is a real problem in itself.

The ACT party goes a step further, as do Ngāi Tahu, actually. They are saying it is their property, they want to be left to get on with the business, they want to use commercial law, and they do not want all these encumbrances put in their way. They go a step further and ask why they cannot transfer the asset. In other words, if they want to ditch one load of species quota, because in a commercial sense they see problems on the horizon, or if they want to invest in aquaculture, they should have the flexibility and freedom to maximise and optimise the use of that property. But this bill specifically precludes that from happening. They are locked in. They cannot use the asset and they cannot exit. Any malcontents are locked in. It is not a good sound commercial framework.

I would have hoped that from the outset, having finally delivered a framework for the settlement of the Māori fisheries successful claim, pursuant to article 2 of the treaty, we would leave in place a framework that optimised the chance of it being successful. In this bill there are all manner of barriers and problems that will actually justify excuses and all the other problems that go with it. I could, for instance, run through the multilayered lists of various company structures. They are all there—from clause 20 through to about clause 100. They are extremely complex. Various parties feel aggrieved that their interests will not be protected. The electoral college is distorted.

This bill is a recipe for ongoing debate, and that comes back to one of the basic inherent problems, whereby we are trying to provide for a communally owned, or collectively owned, property right. But this bill is one of the worst governance structures that could be put in place for a communally owned property right.

Hon JOHN TAMIHERE (Associate Minister of Māori Affairs): The substance of the comments I intend to make reflect on subpart 4 in Part 2, and they are relevant to Te Pūtea Whakatupu Trust and Te Pūtea Whakatupu Trustee Ltd. Prior to making comment on subpart 4, I invite the Minister, when he does take a call, to give some consideration to either affirming or otherwise the comments I might make in that regard.

Before I do that, I say that I do have some sympathy with one part of the Supplementary Order Paper put forward by Green member Metiria Turei. It would be helpful if the Te Ohu Kai Moana Trustee Ltd were given a sunset clause relevant to its power of intervention. Whether or not that was for 10 years I would not much mind, but the giving of a clear end point to the period when the trustee could intervene on the mana of mandated iwi organisations after they had struck their constitutions, seems eminently admirable.

The next issue I want to discuss is the issue raised by ACT party member the Hon Ken Shirley. The reality is that Douglas Montrose Graham and the Rt Hon Jim Bolger struck this deal—also known as the “Treaty of Wellington”—in the dead of night and, as usual, along with many difficult, varied, and silly things the National Party has done in its chequered history, it is up to this Labour Government to fix it. We are in the process of doing that.

The second point I make is that the settlement entreated Māori to engage and draft a bill, then refer it to this House, and I say to the Hon Ken Shirley that that is what has happened. Māori have referred this documentation, with all its detail, to this House for the conclusion of this settlement. So members should not look at this Parliament or at this Government; they should look at the negotiators who actually drafted this bill—over 12 tortuous and long years of litigation, and worse.

I turn now to subpart 4, but more particularly to clause 65. I note that the Minister, under Supplementary Order Paper 255, has amended the same. For the benefit of the Committee, and for the benefit of any judge who may care to look at the definition of this purpose—purpose being the ultimate driver in the heart and soul of the essence of any trust—I will read my understanding of what the intent of the purpose clause about Te Pūtea Whakatupu Trust is: “The purpose of the Te Putea Whakatupu Trust is to hold and manage the trust funds on trust for and on behalf of the beneficiaries under the Deed of Settlement, in order to promote education, training, and research including”——and this is where the Supplementary Order Paper deletes and adds words—“matters that relate to fisheries, fishing, and fisheries-related activities, but not in a manner that could adversely affect the charitable status (if any) of the trust.”

The intent of this purpose clause clearly has a twofold test in terms of the purpose. Firstly, it is wide in order to promote education, training, and research. Notwithstanding that, it can include matters that relate to fisheries, fishing, and fisheries-related activities. So there is a twofold test for the purpose provision and to that extent, if that is the extent of the purpose of the Te Pūtea Whakatupu Trust, I commend it fully. I commend it fully on the basis that this particular issue has been to the Privy Council twice, and our acknowledgment that this settlement is, in the final essence, for the ultimate benefit of all Māori. It is a vehicle and a tool to build bridges between iwi and others who do not necessarily engage fully in the iwi politicisation process.

I turn finally to clause 69, “Requirements for appointment of directors”, which concerns the appointment of directors to Te Pūtea Whakatupu Trust. There are two tests in terms of appointment. The first test is for Te Ohu Kai Moana Trustee Ltd to go to the National Urban Māori Authority, and the second, by way of clause 71A(3) in Supplementary Order Paper 255, is to refer to other Māori-related organisations in urban areas. The intent of that is to make it quite clear to Te Ohu Kai Moana Trustee Ltd that the directors are to be appointed out of engagement and consultation with those groups, specifically. Those are the two tests.

So under this subpart 4 the purpose is reasonably wide, but it is tied into the promotion of education, training, and research. The last thing that tens of thousands of Māori babies in cities might want to be excited about, is going fishing.

Hon GEORGINA TE HEUHEU (National): Part 2 deals with the establishment and review of new entities. Of course one has only to look at the first part of this part to see why it is that the National Party has serious reservations about this bill. It is bureaucratic, it is patronising, and even though Phil Heatley and I, who represented the National caucus on the Fisheries and Other Sea-related Legislation Committee, worked, I think, in a reasonably consensual manner with members of the committee, that does not get over the fact that this legislation will go down in history as even more bureaucratic than the bureaucracy itself.

In my mind it should signal to Māori that this legislation represents this Government to a T. Everything is to be centrally controlled, and that is basically what happens here. The bigger part of the asset stays with the central body. The layers of bureaucracy are such that they separate by times six the actual owners of the asset from a significant part of the asset itself. I am surprised that John Tamihere, who is the small business expert and the Minister for Small Business—which should indicate that he also cares about big business—would be party to such legislation. As a member said earlier, this is the most convoluted, complicated legislation one would see in this Chamber. Therefore, it is no surprise that it is a Māori bill, and why should we be surprised, anyway?

Just to comment on John Tamihere’s issue in relation to the urban trust, as it is commonly referred to, and the issue of fisheries-related activities, I hope that the trust does keep in mind that that is the genesis of this pūtea. It comes from fish and the property in fish. We do not want the trust to start treating the allocation that comes to it as a welfare cheque. The trouble I have with Minister Tamihere and his ilk is that they always seem to be focused on dependency and wanting these things for health, welfare, and education. That is not the genesis of this asset and I hope that the urban trust keeps its mind on getting young people trained to participate in an industry that is critical to our economy going forward. It is so now, and it will be going forward.

I support my colleague Phil Heatley’s Supplementary Order Paper. He is quite right and he has set the matter out very clearly. From my point of view it is heartbreaking that Māori people are so separated from their asset. They are also separated from having a direct say on who sits on Aotearoa Fisheries Ltd. Aotearoa Fisheries Ltd is the flagship organisation of this asset and it is utterly tragic that their input into who sits on it is whittled down in the way it has been.

Mr Heatley’s Supplementary Order Paper, which takes out one layer of the appointment process, is admirable. I think the Government should support it. If the Government really cares about the people on the ground, whose asset this is, actually getting a say on who is running the flagship organisation, then it should support it. It should work to cut out at least one layer of bureaucracy; otherwise it is patronising and it is insulting. What other set of companies or trusts would one find where the owners of the asset are so far removed? It flies in direct contravention of proper commercial practice, and it says to iwi that we do not trust them and we will put in as many layers as we possibly can to keep on top of them. The National Party rejects that.

We realise that this measure has been a long time in gestation—12 years—and we certainly see the need for legislation to come to this Parliament, but this is the worst piece of legislation one could find.

Hon DAVID BENSON-POPE (Minister of Fisheries): I am pleased to take a brief call, first of all to address the issue of the complexity of the legislation, which has been mentioned by three speakers today. It is important to reinforce publicly the reasons for that complexity. As the previous speaker has just said, this debate has gone on for 12 or 13 years. One of the reasons for the complexity, both in the legislation and in the management regime, is to provide the protections that iwi themselves considered appropriate in terms of the governance and allocation structures.

I think that some of the comment made in the previous debate last week, and again in the session so far this afternoon, has been a little short of the mark. I respect the work that the select committee did and I will talk more about that in the third reading, but let no one in the Chamber forget that the complexity of this legislation is for one reason and one reason alone—those people who are the beneficiaries of these assets have made it very clear that those protections are required by them.

In respect of the comments made by my colleague Minister Tamihere earlier, I am happy to reinforce the interpretation and the comments he made about the purpose of Te Putea Whakatupu Trust. Indeed, it is a wide purpose. Its prime purpose is education, training, and research, and in a secondary way it is clearly able to involve matters that are fisheries specific, but that detracts in no way from the prime purpose of that operation.

METIRIA TUREI (Green): Additionally, on Supplementary Order Paper 260 the Greens are putting forward a second amendment to clause 50. Clause 50 sets out how the voting shares in Aotearoa Fisheries Ltd are to be distributed. Currently, it provides that Te Ohu Kai Moana Trustee Ltd is the sole recipient of the voting shares in Aotearoa Fisheries Ltd. The amendment put forward by the Greens is that the words “Te Ohu Kai Moana Trustee Limited” be omitted from subclause (1) and substituted with the words “mandated iwi organisations in equal shares”. Fundamentally, we believe that if 50 percent of the assets of the iwi are to be held by a centralised company, then it is absolutely critical that it is the iwi that controls the voting shares in respect of what happens to the company, not, instead, some other organisation that is at least three steps away from the iwi.

The argument in favour of Te Ohu Kai Moana Trustee Ltd having those voting shares is that iwi will not be able to manage that responsibility effectively themselves; that somehow they are so entrenched in their own personal dynamics that they will not be able to exercise their voting responsibilities in a way that is best, and ensures the best, for the company as a whole. It is argued that they will use their influence and their voting influence to shore up their own interests, therefore ensuring that, at some point in the future, the company will implode because the people concerned will not be able to agree or get on with the job in hand. Of course, that is an incredibly paternalistic and, I would go so far as to say, racist approach to the ability of iwi Māori to manage their assets.

Iwi Māori have held shares in companies and incorporations and have managed trusts in all sorts of organisations for years and years, and they have been doing a very good job of managing those assets, primarily around farming and forestry, in incorporations and in trusts. They have been doing a really good job of building on those assets and making gains wherever they can for their economic advantage. I myself have been a beneficiary of moneys that have come from a farming incorporation held collectively by my iwi. They have helped me in my studies, as they help many hundreds—maybe even thousands—of Māori throughout this country.

There is no doubt that as iwi are getting settlement assets of their own accord, they are able to manage those assets effectively for the benefit of the iwi as a whole, and are able to exercise their responsibilities in a responsible and commercially effective way. There is absolutely no reason why they should be excluded from having the opportunity of exercising those responsibilities over assets that were originally designed to be held by them in their own hands. If the assets are to be centrally held, then it is absolutely critical that iwi Māori have some kind of voting control over what happens to them, especially considering the power that Te Ohu Kai Moana Trustee Ltd currently has, or will have, under the bill over the mandated iwi organisations and being able to change their constitutional arrangements and requirements.

At the very least, it would take an element of commercial competition out of the hands of Te Ohu Kai Moana Trustee Ltd and ensure that iwi Māori have actual control over all their assets, as they were originally supposed to have. That is what the settlement deed was about. It was the whole point of returning the assets to the rightful owners. That will not happen under this bill. Fifty percent of those assets will be held by centralised organisations, whose accountability back to iwi is very, very poor—many steps away. The amendment proposed by the Greens is just one small way of ensuring that iwi Māori have control over the assets they are entitled to and that the settlement originally intended they have. I urge this Committee to support both the amendments that the Greens have put forward in their Supplementary Order Paper, to clauses 38 and 50, to ensure that iwi Māori actually have the control over the assets, as it was designed they should have.

PITA PARAONE (NZ First): I want to take a brief call, particularly in support of the Supplementary Order Paper put forward by the member for Whangarei. Notwithstanding the length of time this bill has taken to come to the House, and the fact that Māori gave some support to it, particularly the model presented by Te Ohu Kai Moana Trustee Ltd, not all Māori support it. In fact, I suggest that the support was given only in order to progress this issue, particularly after 12 years of waiting.

This bill is complex; hence the extra layers of bureaucracy. In Māoridom there is a saying that there is only one thing worse than a Pākehā bureaucrat, and that is a Māori one. Given that that is what Māori think, they will have some real concerns about the levels of bureaucracy. If we seriously consider removing one layer, that might get a positive reception from Māori. But to give Te Ohu Kai Moana Trustee Ltd the power that this bill invests in it, would continue to attract the same criticism that the present Te Ohu Kai Moana Trustee Ltd has received over the last 12 years.

It will be interesting to see who will make up the board of directors of the company. It will probably be the same people who are directors now. If not, it will at least be the majority of them. The argument will be that they have the experience. I say to the Minister that my concerns will probably be alleviated if the membership of Te Ohu Kai Moana Trustee Ltd does not comprise the majority of the present commission. New Zealand First will be supporting the Supplementary Order Paper put forward by the member for Whangarei.

Hon DAVID CARTER (National): I want to take a call on Part 2 of this debate to challenge some of the comments made by Labour member of Parliament John Tamihere in his contribution. Mr Tamihere took the opportunity to say that this bill was here today in an attempt to sort out the mess created by the 1992 deed of settlement. It is true that the deed of settlement in 1992 was put together in a rush, over a short period of time. The issue of ultimate distribution to Māori was not resolved at the time, but for very good reasons. The point I want to address is Mr Tamihere’s suggestion that that was a mess created by the National Party, and he cited both the Rt Hon Jim Bolger and the Rt Hon Doug Graham. I suggest to Mr Tamihere—and the Minister might like to confirm this—that he should make contact with those people, who could bring him up to date with what actually happened over that brief period.

In 1992 an investment company—at that stage, quite a proud investment company—called Brierley Investments Ltd made a decision that it wanted to sell its shareholding in Sealord’s. That window of opportunity was grabbed by the Government of the day as a means of resolving grievances that existed in the fisheries area. It was an opportunity that had to be grabbed over that very short period of time. It is totally improper and incorrect for Mr Tamihere to come down to the Chamber to try to rewrite history, when he does not know the facts.

It is for that reason that the National Party now supports this legislation, with caution, because it moves an issue further after a long 12 years. The issue about the division of the ultimate benefits to Māori has been something we have left Māori to decide for themselves. Mr Tamihere said in his contribution that, effectively, the bill was written by Māori because they have now been given the opportunity to determine how they think the assets are best resolved and distributed, and I accept that.

But there are one or two issues that I think the Committee needs to look at quite seriously—in particular, the issue on the Supplementary Order Paper put forward by my colleague Phil Heatley, National’s fisheries spokesperson, that concerns the way the ultimate determination is made of directors for Aotearoa Fisheries Ltd. That organisation will be a huge commercial entity. As Mr Heatley explained to the Committee, we see now a very laborious five-stage process by which we ultimately end up with the directors of Aotearoa Fisheries Ltd. However, I think that that process could be curtailed quite dramatically and, therefore, that the Committee should take serious note of the Supplementary Order Paper put forward by Phil Heatley that attempts to eliminate at least one step in the election of Aotearoa Fisheries Ltd directors.

My colleague the Hon Georgina te Heuheu referred to Aotearoa Fisheries Ltd as a flagship organisation. The Committee needs to realise that the assets involved in that flagship organisation will be very significant. This afternoon the Committee has a duty to make sure that we establish a process whereby the best commercial brains ultimately get selected as directors to run that commercial entity. I certainly do not want to see a situation whereby we find that the legislation allows people to impose directors on Aotearoa Fisheries Ltd for their abilities, loyalties, or something other than their financial expertise. If that occurred, the ultimate gains available for Māori that are being distributed with the Maori Fisheries Bill would not be delivered.

I hope that with these comments in mind the Committee will seriously consider the Supplementary Order Paper that has been put forward by my colleague Phil Heatley.

Hon GEORGINA TE HEUHEU (National): I want to make some comments about Metiria Turei’s Supplementary Order Paper in relation to the huge control that Te Ohu Kai Moana Trust Ltd has over mandated iwi organisations, which ultimately are the iwi bodies that hold and manage the assets. The absence of any time limits on the period when that power can disappear is a real issue. I noted that John Tamihere seemed to be in favour of this Supplementary Order Paper. If the Government were to support the amendment, that would be a big change on its behalf.

It is just these kinds of processes, structures, and powers that make Māori very fearful of being so far removed from their asset. Although they get part of the asset, as mentioned earlier by myself and other speakers, the other significant part remains out of their reach. With the potential for the asset to be sitting in Aotearoa Fisheries Ltd, Māori fear that it could be managed in ways that are contrary to their own interests. It is not good if there is any residual power that allows any organisation above the mandated iwi organisations to keep on saying: “Well, we want to change this. We’re putting in some more criteria.” If members think about it they will realise that such a practice flies in the face of managing an asset that is commercial and therefore, as far as possible, should be managed on a commercial basis.

I turn to the review period. The Fisheries and Other Sea-related Legislation Committee was able to make some changes to minimise the feeling on the part of the owners of the asset that they are in the dog box, that someone is always standing over them, and that they are always at the butt end of everything. That environment is no good for the proper management of such valuable assets. Although the select committee worked collectively to try to bring about better provisions around the review provisions—and National Party members did—we still have reservations about how long the review period will be, even though it is proposed that the original period be cut down slightly. We have reservations that a significant proportion of the asset is sitting with the top dog Aotearoa Fisheries Ltd and we wonder how long it will be before the iwi are freed of this constraint.

National has also tabled a Supplementary Order Paper that tries to minimise that period, to enable these iwi who are capable and competent, to break free. However, it is a real issue. I have to ask what other organisations of a commercial nature are subject to the kinds of controls that are in this bill. I know that the Minister endeavoured to answer some of the questions put to him, but I have not found the answers at all satisfactory. To say that basically this is legislation that iwi wanted, is not really the case, because they are tired of the litigation, too. They want their economic asset, and they want to be able to move forward economically. Frankly, the Māori record of managing their own assets over the last 20 years is not too bad at all, and they develop more every day, as they go forward.

PHIL HEATLEY (National—Whangarei): I would like to touch on some issues of the bill as first introduced. The Fisheries and Other Sea-related Legislation Committee in its process heard from both individual Māori and from those coming as whānau, hapū, and iwi groups. They put issues of accountability to the committee, in which there seemed to be two rules—one rule when it came to Te Ohu Kai Moana Trustee Ltd, Aotearoa Fisheries Ltd, Te Pūtea Whakatupu Trustee Ltd, and Te Wai Māori Trustee Ltd, with a review period of 12 years for those overarching organisations, yet another rule when it came to the mandated iwi organisations, whose report back and accountabilities were quite strenuous. It was starkly obvious to us, even before we heard from submitters, that there was an issue of iwi having to be highly accountable to their members—iwi having to report back all the time, cross their t’s and dot their i’s, and have financial reports in, all with very little flexibility—yet when it came to the overarching organisations such as Te Ohau Kai Moana Trustee Ltd, Aotearoa Fisheries Ltd, and the other trustees, they did not have to meet those same criteria. In fact, they had a review period only in 12 years’ time, which was in a decade plus 2 years. That is phenomenal when one thinks about it.

The select committee made some amendments—and National Party members were quite proud to make those amendments—particularly to Part 2, which included a provision in the constitution of Te Ohu Kai Moana Trustee Ltd for iwi to be able to table non-binding motions. So there was involvement there, which is covered in clause 28. Clauses 26, 70, and 83 cover the increase in the reporting requirements of those overarching groups. If members flick to those, they will see the reporting obligations of Te Wai Māori Trustee Ltd in clause 83. Clause 70 deals with the reporting requirements of Te Pūtea Whakatupu Trustee Ltd, and clause 26 deals with the reporting obligations of Te Ohu Kai Moana Trustee Ltd. Those reporting times had been 12 years, but it seemed quite absurd to us that one would go for a decade plus 2 years before bringing clear accountability to those groups.

Of course, there was also an expanded role for Te Kāwai Taumata to monitor their performance, which is covered in clause 40. That particular group—that trustee or “electoral college” of Te Kāwai Taumata—is able now, through clause 40, to have much greater powers in terms of monitoring the performance of those overarching bodies. That will allow it to receive and consider reports and reviews on those entities, and to take action through its powers to dismiss directors of Te Ohu Kai Moana Trustee Ltd.

So, where we had a report back after a 12-year period for Te Ohu Kai Moana Trustee Ltd, now we have that time broken up into several groups of years, and Te Kāwai Taumata can consider reports and reviews on the entities under Te Ohu Kai Moana Trustee Ltd’s charge. If it considers them and finds them wanting and serious enough, it can actually take action now through its powers to dismiss the directors of Te Ohu Kai Moana Trustee Ltd. Certainly, it should be able to. In fact, members will see in clause 40 that the sole role of Te Kāwai Taumata is to appoint and remove directors of Te Ohu Kai Moana Trustee Ltd. I, of course, have expanded that role through my Supplementary Order Paper.

SANDRA GOUDIE (National—Coromandel): I would like to carry on from where my learned colleague Phil Heatley has just taken us to, which is clause 40, “Sole function of Te Kawai Taumata”. Subclause (1) states: “The sole function of Te Kawai Taumata is to appoint and remove directors of Te Ohu Kai Moana Trustee Limited in accordance with—(a) the requirements of this Act; and (b) the constitution of Te Ohu Kai Moana Trustee Limited.” That is a critical point, because the constitution is basically where the rules are structured, and in accordance with the Act, of course, because there are some guidelines provided in the Act for the construction of a constitution. But the constitution can give any sorts of parameters or directions around how those appointments will be made through Te Kāwai Taumata. So the two linked together are vitally important. I do not think one can be taken on its own.

I would suggest that, in looking at clause 40, the importance of a company’s constitution should never be underestimated. I see that Aotearoa Fisheries Ltd is also required to have a constitution. Being a dairy farmer, and in the dairy industry, I was hugely interested in the constitutional issues in relation to the dairy company I was involved with, and the Dairy Board. Under the Dairy Board at the time, one was, I discovered, able to be a qualifying person for Dairy Board assets. Now the Tatua Cooperative Dairy Co. allowed that to happen for its shareholders, so its shareholders could be, directly, owners of its share of assets in the Dairy Board. I could never see that happening here, because of the huge amount of structures involved—there are essentially five. However, if one just takes it down to Te Ohu Kai Moana Trustee Ltd and Aotearoa Fisheries Ltd, one would get close to what was essentially the dairy industry model when it had a Dairy Board.

So if one is looking at Te Ohu Kai Moana Trustee Ltd and Aotearoa Fisheries Ltd in accordance with the Dairy Board model, one could actually have individuals as qualifying persons in respect of the shares in Te Ohu Kai Moana Trustee Ltd, and have that written into one’s constitution in the same manner as actually happened for the dairy industry.

I had a number of discussions with various representatives who were working through this Maori Fisheries Bill, and I remember, in particular, one discussion at a dawn ceremony for the opening and blessing of a medical centre in Thames. We were discussing this very issue, and how it related to the dairy industry. So the constitution is all-important, because while there are parameters identified within this bill, the constitution is where the detail actually takes place, and so one can wrap around a whole lot of stuff within that constitution, which will help to resolve, perhaps, some of the concerns that National, quite rightly, has with regard to this bill.

I am very pleased to see that my learned colleague Phil Heatley has a Supplementary Order Paper addressing some of our concerns. Te Kāwai Taumata has that sole function of appointing and removing directors. However, that would need to be done in accordance with the way the parameters of the constitution were structured. So it is not left solely to its discretion. I would suggest that people take a very, very strong look at what the constitution, and the development of it, will be—and those parameters are in clause 46—so that all those people who have an interest in Te Ohu Kai Moana Trustee Ltd will be able to be part of that constitutional process. That looks to me as if it operates in pretty much the same way—and with the same type of structure—as the dairy industry did.

It is fair to say that not everybody understood and appreciated the importance of the constitution in the dairy industry. That became very apparent when it was discovered that the New Zealand Dairy Group had not allowed for its shareholders to be direct qualifying sharepersons in the Dairy Board assets. So when dairy farmers started to make that application, they had to hastily amend the constitution to prevent that from happening.

MOANA MACKEY (Labour): I move, That the question be now put.

Hon RICHARD PREBBLE (ACT): I rise on behalf of the ACT party to speak to Part 2, which puts together an incredibly bureaucratic process, whereby the fishing rights that have been granted to Māori must be administered. The ACT party says that if we are passing a law to give Māori fishing rights, then why are we placing upon Māori restrictions that non-Māori would not tolerate for one minute? We are a party of property rights, and I say that a property right that has these sorts of restrictions means that one does not actually own the property at all. But I go further than that. We all know—or those of us who are economically literate in this Committee know—that we are setting up here a system that is designed to fail. Now it may not have been the purpose of those designing it, but it is a system designed to fail because it is a system whereby people administering their own property will have to go through a process of politics. Political decisions will be made as to how to administer the fishing rights.

If members think I am being overly pessimistic in my predictions, I just point out that, I think on the front page of the New Zealand Herald today, there is reference to a sub-tribe up north where it is claimed that there are millions of dollars already unaccountable, for a settlement that was made, it seems to me, just yesterday—but then I think I came into the Parliament just yesterday! But it was certainly a settlement that was made very recently.

I make this prediction: because of this bureaucratic process, we will see similar economic failures. People will come along later and say that Māori cannot administer these matters. That is rubbish. I do not care whether one is Māori, European, or Chinese. If one is given a feudal system to administer, one will get feudal results. That is what this Committee is setting up today, and that decision has been made, so let us not relitigate it. If we are to grant substantial fishing stock to Māori, then we ought to do it the whole way and allow those people to administer it as they choose.

I would include in that the right to sell. If one cannot sell something, one does not own it. Māori should be able to do that. Just because there are Māori bureaucrats who want us to set up this bureaucratic system, that is no reason for us to set up a system that will allow them, in economic terms, to what is called “rent seek”, and they most certainly will. In plain language, that will mean that various Māori up and down New Zealand will be able to charge very large fees for being middlemen and middlewomen, standing in between the people who actually own it, Māori, and the State handing it over.

I am not in the business of trying to enrich people who would like to sit in the middle as bureaucrats, as sort of quasi-political business people. We already see them within Māoridom. They wear a better style of suit and they give great pleasure to people who sell Mercedes cars and the like.

How are they able to do that? It is only because this Parliament is not supporting property rights. If Māori are to be given fish, then they ought to be given fish. That would mean that they could administer it, and, yes, it would mean that they could make mistakes. They would also be able to succeed, whereas under the bureaucratic system we have set up, we are enslaving part of the population into a feudal system. The Minister’s economic advisers all know that the system he is setting up will be a failure. The reason the world has moved away from the feudal system is that it did not deliver, and why should it deliver to Māori? We will have a situation that will enable Mr Peters to get up, as he does, and say to ordinary Māori audiences: “And how many of you have received the snapper?”. Of course, the answer to that question will be “None.”, and under this legislation the vast majority of Māori will never see a snapper. A few Māori will become very wealthy.

JILL PETTIS (Senior Whip—Labour): I move, That the question be now put.

LINDSAY TISCH (National—Piako): As the debate on Part 2 has proceeded, it has been interesting to see the inequities that will occur with different layers and structures advocated by the legislation. One concern National has with this legislation is that it separates the shareholders from the asset—because there will be different layers, and different levels of directors, and those who will appoint the directors—so that at the end of the day it will be difficult for them to have a say in the outcomes. We have an asset that belongs to iwi. Yet when we look at the process that goes through a number of different levels of bureaucracy, we find that the real power is not back at the level of the member or the iwi, it has been circumvented and taken over by the directors of some major companies.

That first part is just tokenism. Levels of bureaucracy have been put in place to make it look good and as though there has been a consultative process. Is there some reason why there are the different levels? It was interesting that the Minister for Small Business supported this legislation and talked about compliance costs and how the Government was doing something to reduce the regulatory burden, red tape, and compliance costs, but what does this legislation do? It actually brings in layers. In fact, it brings in five different layers of requirements, legislation, and a means by which the asset is separated from the shareholder.

The important point here is that there is a method and a solution to the dilemma we find ourselves in, and that has been advanced by my colleague Phil Heatley. He has taken a keen interest in all fishery matters, he understands the issues, and his Supplementary Order Paper—[Interruption] If that member were to read what my colleague Phil Heatley was advocating he would see that one of those levels could be reduced, we could streamline the process, and that would be of benefit to all.

I would hope that the Minister in the chair will take a call to support that. We are supporting the bill. However, we have concerns and we believe that there is an opportunity to streamline the process. At the moment it is just levels and layers of bureaucracy. If we look at the compliance of the whole process we find that it will be a waste of money and time, and people will be disadvantaged. Individual Māori around the country will have to select their iwi representatives, and that is the first process to go through. Then the representatives will select who will be trustees on the electoral college. The trustees will form an electoral college and that will be another committee. That is really where the rules, conditions, and compliance will come in.

Those trustees will then appoint the directors of Aotearoa Fisheries Ltd, which is really the flagship of the organisation. We are saying that those five different layers are not needed to be able to achieve the end result that National is supporting. We believe that it is important, but there is no need to have those different levels. Phil Heatley’s Supplementary Order Paper is very succinct. He is able to crystallise and articulate the argument very well, and the speeches that he has given on the subject over the last hour or so have really been focused. That is why we support the legislation.

Hon PAUL SWAIN (Minister of Labour): I move, That the question be now put.

A party vote was called for on the question, That the question be now put.

Ayes 62

New Zealand Labour 51; United Future 8; Progressive 2; Māori Party 1.

Noes 56

New Zealand National 27; New Zealand First 12; Green Party 9; ACT New Zealand 8.

Motion agreed to.

The question was put that the amendment set out on Supplementary Order Paper 253 in the name of Phil Heatley to clause 23 be agreed to.

A party vote was called for on the question, That the amendment be agreed to.

Ayes 48

New Zealand National 27; New Zealand First 12; Green Party 9.

Noes 69

New Zealand Labour 51; ACT New Zealand 8; United Future 8; Progressive 2.

Amendment not agreed to.

The question was put that the amendment set out on Supplementary Order Paper 253 in the name of Phil Heatley to clause 24 be agreed to.

A party vote was called for on the question, That the amendment be agreed to.

Ayes 56

New Zealand National 27; New Zealand First 12; Green Party 9; ACT New Zealand 8.

Noes 61

New Zealand Labour 51; United Future 8; Progressive 2.

Amendment not agreed to.

The question was put that the amendment set out on Supplementary Order Paper 260 in the name of Metiria Turei to clause 38 be agreed to.

A party vote was called for on the question, That the amendment be agreed to.

Ayes 56

New Zealand National 27; New Zealand First 12; Green Party 9; ACT New Zealand 8.

Noes 61

New Zealand Labour 51; United Future 8; Progressive 2.

Amendment not agreed to.

The question was put that the amendments set out on Supplementary Order Paper 253 in the name of Phil Heatley to clause 40 be agreed to.

A party vote was called for on the question, That the amendments be agreed to.

Ayes 56

New Zealand National 27; New Zealand First 12; Green Party 9; ACT New Zealand 8.

Noes 61

New Zealand Labour 51; United Future 8; Progressive 2.

Amendments not agreed to.

The question was put that the amendment set out on Supplementary Order Paper 253 in the name of Phil Heatley to clause 47 be agreed to.

A party vote was called for on the question, That the amendment be agreed to.

Ayes 56

New Zealand National 27; New Zealand First 12; Green Party 9; ACT New Zealand 8.

Noes 61

New Zealand Labour 51; United Future 8; Progressive 2.

Amendment not agreed to.

The question was put that the amendments set out on Supplementary Order Paper 260 in the name of Metiria Turei to clause 50 be agreed to.

A party vote was called for on the question, That the amendments be agreed to.

Ayes 56

New Zealand National 27; New Zealand First 12; Green Party 9; ACT New Zealand 8.

Noes 61

New Zealand Labour 51; United Future 8; Progressive 2.

Amendments not agreed to.

The question was put that the amendments set out on Supplementary Order Paper 255 in the name of the Hon David Benson-Pope to Part 2, and the amendment set out on Supplementary Order Paper 256 in his name to clause 23, be agreed to.

Amendments agreed to.

A party vote was called for on the question, That Part 2 as amended be agreed to.

Ayes 101

New Zealand Labour 51; New Zealand National 27; New Zealand First 12; United Future 8; Progressive 2; Māori Party 1.

Noes 17

Green Party 9; ACT New Zealand 8.

Part 2 as amended agreed to.

Part 3 Allocation and transfer of settlement assets

PHIL HEATLEY (National—Whangarei): I am pleased to lead off the debate on Part 3 of the Maori Fisheries Bill. Interestingly, my colleague Wayne Mapp plans to table a Supplementary Order Paper to address an issue that we felt was not properly addressed at the Fisheries and Other Sea-related Legislation Committee, although Georgina te Heuheu and I certainly tried to address it. It is the matter of organised iwi groups that have a proven track record in the fisheries arena, that own large amounts of quota—and have owned it for some time—and that operate fishing vessels. Those groups process and market their seafood for the benefit of Māori and other good New Zealanders who work hard in the industry, and under this legislation they are currently unable to withdraw their assets almost in total and to put them to work for their people. My colleague Wayne Mapp will be addressing that particular issue.

I, however, would like to address another issue in relation to two iwi groups—Ngāti Hine and Rongomaiwahine—that were not recognised in the original allocation because, among other things, in order to have iwi status they had to be traditionally acknowledged by adjacent and contiguous iwi, according to the original legislation. That meant, according to the Treaty of Waitangi Fisheries Commission’s own criteria—and it had five things that iwi had to prove in order to be acknowledged as iwi in this legislation—that iwi groups had to have acknowledgment from their neighbours that they were, in fact, iwi. Of course, in the Ngāti Hine case we had a situation whereby all of Northland—and I am sure most of the North Island—always knew that Ngāti Hine existed as individual Māori members of that iwi, as whānau, as hapū, and as an iwi in its own right. Yet in this legislation Ngāti Hine was not recognised as such because its major neighbouring iwi, Ngāpuhi, did not recognise it as an iwi. Questions were raised as to why that would be the case, and it all comes down to the allocation and how that will be divvied up. Rongomaiwahine was in a similar situation, whereby it was not recognised by neighbouring iwi groups, yet it has had genuine recognition that goes a long, long way back. It raises the question of why this Committee is debating Māori history and ancestry, when Māori themselves know very well where whānau, hapū, and iwi grow from.

Still other iwi groups wanted to be given individual recognition—that is, apart from Ngāti Hine and Rongomaiwahine—because they lacked the confidence that the overarching iwi provided for in this legislation would deliver the benefits to them specifically, as those iwi should. Amendments have been put in during the Committee stage that would recognise Ngāti Hine and Rongomaiwahine, if their members so choose. I think that is very important. If members of Ngāti Hine and Rongomaiwahine so choose, they can break away from the overarching iwi organisation and set up their own mandated iwi organisation. They can go and fish, and benefit from those particular assets. Ngāti Hine and Rongomaiwahine proved to us in the select committee that because of their situation, there was a lack of recognition by a single adjacent iwi, which, in their case, amounted to an unreasonable veto in the face of all the other evidence presented. Upon recognition in this amended legislation, those iwi groups will now have to work with the larger iwi above them to resolve their differences.

Hon GEORGINA TE HEUHEU (National): I speak to Part 3 of the Maori Fisheries Bill, which deals with the allocation and transfer of settlement assets. It is obviously a very important part, because it essentially sets out the whys and wherefores of when the registered Māori organisations will receive their assets. The intention is that as soon as is reasonably practicable after Te Ohu Kai Moana Trustee Ltd is satisfied that an iwi has met the criteria set out in the legislation, then it must allocate the settlement assets to that particular iwi in accordance with provisions also stated in the legislation, and must transfer settlement quota and income shares to the asset-holding companies of the mandated iwi organisation. I believe there is an obligation inherent in this part for Te Ohu Kai Moana Trustee Ltd to be supportive, in terms of helping the iwi organisations to get themselves ready, established, and able to satisfy the criteria, so that the assets can transfer as quickly as possible. As has been said many times already in this debate, National certainly wants the assets to go out to the owners of those assets. The sooner that occurs the better it will be, in our view.

With regard to the issue of who is capable, we know some iwi organisations are already competent and capable. My colleague Phil Heatley has flagged our thinking on that, and my other colleague Dr Wayne Mapp has a Supplementary Order Paper that deals with the issue. The issue came up several times during the select committee stage in the Fisheries and Other Sea-related Legislation Committee. There are iwi that are already running successful fishing companies, and they have proved that they are capable and competent—like Ngāi Tahu, for instance, but that iwi will not be the only one. This legislation treats all Māori alike: as though they are witless and incapable of managing their own assets, when, in fact, the reverse is true. As I said earlier, the track record of Māori managing their own assets is not bad—not bad at all. We see that especially when we look at what happens in the general sector, such as the failure of Access Brokerage last week. A lot of shareholders will be out of pocket and will have lost their life savings as a result of that. I do not know whether we have seen that happen with many of the Māori commercial entities.

Setting free the iwi organisations, the tribal companies, that are competent and commercially experienced from the jail, or cage, that they are all jammed into is a real, real issue, as is the issue of the transfer of assets when the mandated iwi organisations and the asset-holding organisations are ready. As I say, I think Te Ohu Kai Moana Trustee Ltd has a real obligation to ensure that there is as little delay as possible. Although the bill certainly sets up enough barriers for iwi organisations that are getting themselves going, I think that Te Ohu Kai Moana Trustee Ltd should show a generosity of spirit and faith in the iwi, and should do everything it can to ensure that the assets transfer sooner rather than later.

Dr WAYNE MAPP (National—North Shore): I will speak to my Supplementary Order Paper 257. The Minister of Fisheries has had advice of it for a week. I direct this comment also to United Future members, who always ask for time to think about things: well, I wrote to them, I gave them time to think about my amendment, and if they read it carefully they will realise the wisdom of it, rather than their just meekly following the Government as they so often do. “Be brave!”, I say.

I just want very briefly to refer to my amendment. It is intended to give commercially qualified iwi—those who have a genuine track record—the ability to access directly their offshore quota. They would make an application to Te Ohu Kai Moana Trustee Ltd and would have to satisfy some threshold test. I understand that that is important for two reasons: first, so that people know that the asset will not be dissipated; and, second, to give Aotearoa Fisheries and, ultimately, Sealord’s a reasonable period to adjust. I understand the importance of that. The threshold tests are, first, the iwi has to be a mandated iwi organisation; second, it has to hold relevant quota entitlements, as provided for in the relevant clauses; and, third—and this is most important—it has to demonstrate an existing track record of increasing shareholder value over a 3-year period. If an iwi can satisfy those three tests, then it should be able to access its quota directly, because, frankly, it will have proven that it can manage the quota as well as Aotearoa Fisheries can.

Surely, it is the Government’s intent that iwi should be empowered. How many times have members on this side of the Chamber heard that the Government has faith in commercially qualified iwi organisations? We have heard it numerous times. Well, this is an opportunity to show that. This is not one of those kinds of Supplementary Order Papers that are prepared in haste; this has been thought through. It provides for a separate part. The Minister has been written to. He knows that some iwi want this particular power, and I say he should give it to them, because the alternative is that, some years down the track, Parliament will be faced with this kind of request in any event, and whoever is the Minister—depending on which party is in Government—will have to produce—

Sandra Goudie: It will be Phil Heatley.

Dr WAYNE MAPP: Yes, it will be Phil Heatley. He will have to introduce into Parliament this kind of legislation to enable qualified iwi to get out of jail, effectively, because the problem with the current legislation is that it is too much of a straitjacket. This Supplementary Order Paper offers a reasonable and responsible approach to freeing it up. It gives Aotearoa Fisheries the ability to make a managed transition, and I recognise that that is necessary—obviously, it is important—but at the same time we must understand that iwi want to be empowered. The best way to do that is to give them control over their assets—to provide some decent threshold tests, and if they meet them, then they can have that control.

If the Government will not listen, United Future has the power in its hands—as does the Green Party—to give freedom to commercially qualified iwi. I say that this Committee should be voting for freedom, it should be voting for autonomy, and it should be voting to give people with competence, who have a proven track record, control of the assets themselves. That is the aspiration of iwi organisations up and down this country. There would be threshold tests to get over, and that is reasonable, but if the Minister and other parties in this Committee really had the interests of iwi at heart, they would vote for this Supplementary Order Paper. As I said earlier, it is one that has been carefully thought through and one that provides a balance of interests.

Hon RICHARD PREBBLE (ACT): I will first just comment on Mr Mapp’s amendment on Supplementary Order Paper 257. While it has some appeal to me, I say to him that I do not like the phrase “commercially qualified iwi organisation”. I wonder how people would work that out. I do not like it, first, because it requires somebody to work out whether an iwi is commercially qualified, and, second—[Interruption] I have listened to the member, and I am now replying to his point. The second point that I do not like about it is that it talks about iwi organisations. We all know, or those of us who have bothered to study the matter know, that in 1840, of course, iwi did not own anything. It was all held by hapū. If the member had put into his amendment that the quota be able to be transferred to hapū—actually, to families—which is an economically sound unit rather than one that is artificial, tribal, and requires politics to run it, I would be much more inclined to support it. I probably will vote for it because it is an improvement, but I say it has not gone far enough.

Let me return to clause 125 and say just how shocked I am at such an amendment being proposed, because it is absolutely contrary to the Treaty of Waitangi. The clause provides that a mandated iwi organisation must not sell its settlement quota. Well, if one looks at the treaty, one finds there are only three articles. Article 1 is the sovereignty clause. The second article recognises that Māori own land, forest, and fisheries—which is why we are having this settlement—then empowers Māori to sell them. In fact, in the treaty there is a restriction that they must be sold to the Crown, but Māori are entitled to sell—there is no doubt at all about that—and that is a very, very powerful right. One does not actually own anything if one cannot sell it. This Parliament says it believes in treaty principles, but where is the treaty principle that says that Pākehā can sell fishing quota, that Chinese can sell fishing quota, that, in fact, any New Zealander can sell fishing quota unless one happens to be a mandated iwi organisation? I object to this clause, because it is racist and contrary to the treaty, and I would like to hear from members opposite why they believe they can get up and preach the principles of the treaty to this House, then introduce a clause that is so contrary to it.

I have no doubt that there are Māori bureaucrats and politicians who have said they want this clause. Of course they do; they see this clause as a way of keeping them in their jobs forever. But I say that I believe it is quite possible for Māori to decide that they want to invest their money somewhere else. In a free society, they ought to be able to do that. An iwi ought to be able to say: “On balance, we don’t think fishing is for us. We have something else we would rather do with our money.” That is what New Zealanders and companies do every day.

I tell the Committee that this clause is contrary to the treaty. There is no doubt about that; it is a black and white matter. I want to hear from the Minister how he can be in favour of this clause, and then say that his Government is trying to implement the treaty. He cannot say that Māori have the right to rewrite the treaty; if the Crown does not have that right, nor have Māori, and nor has this Parliament. This clause is contrary to property rights. It is contrary to the fact that every citizen—and under article 3 of the treaty Māori are given the rights of citizens—is entitled to buy and sell. But in clause 125 the only way one can sell quota is to sell it to another Māori group—or one can gift it. What an outrage! How could a Government, in 2004, pass such a patronising, racist clause that is contrary to the treaty!

LARRY BALDOCK (United Future): I will address my comments to Dr Wayne Mapp’s amendments on Supplementary Order Paper 257, as well, as I have been challenged by him to show some courage and support his amendment. I thank the member for giving us sufficient time to process his amendments. We have done that and have considered what the amendments are all about.

One thing I have not heard the member clearly elucidate is the list of all the hapū and iwi that have lobbied him for these amendments. I certainly would take that into serious consideration, if I were to give any support to the amendments. I know that I personally have not received one letter or phone call from any Māori hapū or iwi representative asking me to support Mr Mapp’s amendments. I can only conclude that it is Mr Mapp’s good idea to try to amend the bill, but that it is not something that has the support of the majority of iwi.

The proposed section 119B(1) reads: “As soon as practicable after an application has been made under section 119A, Te Ohu Kai Moana Trustee Ltd must determine whether the applicant iwi is commercially qualified for transfer of settlement quota,”. That creates in my mind a bit of a conflict. In a number of speeches in the Committee stage I have heard members complain about patronising things and about overuse of bureaucracy, yet this amendment seems to me to be setting up another such situation, in that more power would be given to Te Ohu Kai Moana Trustee Ltd to make decisions about iwi and hapū groups. I cannot see that being acceptable to, or recommended by, Māori, who want this bill passed so they can get on with their commercial activities.

Another of Dr Mapp’s amendments provides for a right of appeal against a determination of Te Ohu Kai Moana Trustee Ltd. One thing this bill seeks to do is to remove the potential for further litigation, appeals, and so on. By inserting that amendment, we would create another opportunity for people to appeal a decision of Te Ohu Kai Moana Trustee Ltd, and, perhaps, confuse and further complicate the settlement allocation.

Although I thank the member for giving us the opportunity to consider his amendment, United Future will not give support to it, for the reasons I have stated.

GERRY BROWNLEE (Deputy Leader—National): I am not surprised by that declaration from Larry Baldock. Everyone knows that United Future does not think for itself—it takes its instructions directly from the ninth floor. Here we have a very simple proposal from my colleague Dr Mapp. So that we understand exactly what that proposal is, let me outline it for a moment—and if the Minister in the chair, David Benson-Pope, thinks I am wrong, he could take a call to point that out.

Māori have been granted 20 percent of the quota allocation. That was done back in 1992. It is theirs. Nobody else owns it—Māori do. That ownership is recognised through the various mandated iwi organisations, but for the past 14-odd years the asset has been held by the Māori Fisheries Commission. At this stage, no Māori has had much value from it, at all. We are now at a point where supposedly there is to be a distribution of that asset. What do we get? We get a bunch of vested interests coming together to work with the Government to put together a bill that will ensure that Māori do not get all of their assets for some time to come—perhaps for some decades, or perhaps even, in the context of the enduring settlement process, for centuries.

I tell Mr Baldock that all that National is saying with this amendment is that if an iwi has a demonstrated capacity to manage its own asset, then surely it should be able to get its hands on it. It is very disappointing that Mr Baldock and the rest of the white planters in the United Future team have decided to bow down and do the bidding of Helen Clark. Mind you, that is something this Parliament is getting quite used to seeing.

I ask the Minister to explain what the objection is to Māori organisations that are capable of managing their own assets—and are well demonstrated as being so—taking control of their own assets. Why do we have to proliferate this problem in our society whereby Māori feel aggrieved? That is what will come out of this bill. It might not be next week, and it certainly will not be on Thursday afternoon, when all the vested interests and their hangers-on turn up here to sing, clap, and carry on—

Darren Hughes: I bet you don’t say that on Thursday.

GERRY BROWNLEE: I will be saying that, and I say to Mr Hughes that I will tell them not to come back when the National Party is in Government and expect some correction to this bill. This is a Labour Party Government mess—no one else’s.

Why can the Minister not tell us that his party does not trust Māori? Labour’s view is that if Māori were to get hold of those assets, they might sell them, and that would be a terrible thing because then they would not have any. Does not that sort of transaction happen all the time in the business world? Is that not a reasonable thing for someone to be able to do? No, the Labour Party Government is not prepared to let Māori have their own assets. Worse than that, Labour wants the management of those assets to continue under the chairmanship and stewardship of some of its closest supporters. I am very worried by clause 104, because it seems to me that it allows the profits of this considerable asset to be used for purposes other than the betterment of Māori—provided that those who are running the outfit say it is for the betterment of Māori. I think we see the seeds of another Crown Forestry Rental Trust being planted.

SANDRA GOUDIE (National—Coromandel): Supplementary Order Paper 257 is about our having iwi interests at heart and about iwi being able to exercise their rights. I fully support my learned colleague Dr Wayne Mapp’s Supplementary Order Paper. If it passes—due to intelligent recognition of it by others, which cannot always be guaranteed—then the constitution of Te Ohu Kai Moana Trustee Ltd would enable it to set some of the parameters by which this matter could happen in an organised fashion.

Although one could suppose that it is a transgression of the Treaty of Waitangi, one could also liken it to some conditions that exist within the dairy industry, where the same sorts of models apply. One sells and trades within the industry, and that, to some degree, protects the industry. One can go outside the industry, and one can transfer from one company to another; all the companies’ constitutions allow for that, within certain parameters. There is no reason why that could not be allowed for here, and this Supplementary Order Paper would support that. The conditions would be prescribed in the constitution, and it could be allowed to happen as it does in the commercial world as it exists today. As I said, the dairy industry is an excellent example of that.

This issue is about our having iwi interests at heart and supporting their aspirations. However, National recognises that the current Government likes control, and does not like to see those sorts of aspirations actually being given some support. Sure, some iwi may fall by the wayside, but they should be given the opportunity to succeed, and I am sure they would succeed if they had that support.

There is the opportunity, as my learned colleague the honourable Gerry Brownlee has said, under clause 104 for other entities to be created under Te Ohu Kai Moana Trustee Ltd. I am interested in the accountability provisions in relation to that. Again, those would be through the constitution of Te Ohu Kai Moana Trustee Ltd. One concern I have is around the tax provisions. If we look at the commentary on the bill, we see that, with regard to income tax: “As with all settlement legislation the first transfer of settlement assets to an iwi has been exempted from tax.” So the assets are exempted in the initial phases. I imagine that Aotearoa Fisheries Ltd pays full tax, but, from there on, I am uncertain what level of tax would be required to be paid by Te Ohu Kai Moana Trustee Ltd. As has been pointed out, it can create subsidiaries, and they can have what we in the dairy industry would call retained earnings, but any surpluses can be used for other purposes.

I would be interested in the Minister of Fisheries taking a call and explaining to me just where Te Ohu Kai Moana Trustee Ltd sits in terms of tax payment, and whether it comes under the Taxation (Maori Organisations, Taxpayer Compliance and Miscellaneous Provisions) Act, which introduced new definitions of a Māori authority. The definitions include a company established under Te Ture Whenua Maori Act, the Māori Trustee, Māori trust boards, etc. I would like to know from the Minister what sorts of taxation rates all the trusts and trustees identified in this bill—Te Ohu Kai Moana Trustee Ltd, Te Pūtea Whakatupu Trust, Te Pūtea Whakatupu Trustee Ltd, Te Wai Māori Trust, and Te Wai Māori Trustee Ltd—will be paying. I am sure that a significant range of others will be established as a consequence of this bill. Could the Minister please explain to me what sort of taxation rate they will be paying? Will they be paying 19.5c in the dollar, or will they be paying full taxation rates, or are there any other exemptions? It is unclear to me whether they come under the Māori organisation definitions.

MARK PECK (Labour—Invercargill): I move, That the question be now put.

LINDSAY TISCH (National—Piako): Part 3 is an interesting part. I think we need to go back to some of the comments that Gerry Brownlee made, because they put in perspective where we have come from since 1992. If we were to look at the period since the settlement of 1992, which allocated 20 percent of fisheries to Māori, we would see that over the last 12 years iwi have had little access to this asset. As we said during the debate on Part 2, one of the problems we found with it was that the asset was actually not able to be accessed by the stakeholder. That was a very important point and was why my colleague Phil Heatley put forward an amendment to allow that sort of access.

Here, in Part 3, Te Ohu Kai Moana Trustee Ltd, in our view, has to be able more easily to give advice, to give leadership, and to promote the opportunity for iwi who can demonstrate that they are viable, are commercially sensitive, and have business acumen—those things that we would look for in a commercial operation—to be able to take over their own fisheries. In our view, Te Ohu Kai Moana Trustee Ltd has a responsibility to be part of that, to be that catalyst, to facilitate that change, and to build that goodwill, which is not there at the moment. At the end of the day, what we are looking for is the ability for the asset, the quota, to be transferred to those iwi who can demonstrate that they have those capabilities. It is my learned colleague Phil Heatley’s assessment that the layers of bureaucracy that are in place do not allow streamlining to take place, and that the process has been shackled because of that.

My colleague Georgina te Heuheu mentioned that Te Ohu Kai Moana Trustee Ltd should be there to set free, as it were, those iwi who are commercially viable and can handle the asset. She talked about their being in a cage, and I felt that was a very good description. Iwi that want access are stuck in a cage and do not have that opportunity. So the real obligation on Te Ohu Kai Moana Trustee Ltd is to ensure there is as little delay as possible in the transfer of this asset. It should be showing good faith, and should be able to move to transfer the asset as quickly as possible.

My colleague Wayne Mapp, with his Supplementary Order Paper 257, has clearly identified a process that meets that requirement and sets some bars. There is a threshold that has to be met, so it is not just a case of giving quota out, of giving the asset away. His Supplementary Order Paper looks to help commercially qualified iwi access their offshore quota. I hope the Minister of Fisheries will take a call on it, as I would be interested to hear his view. I hope other Government members take a call on it, as well. Wayne Mapp’s amendment puts in place some actual thresholds that have to be met, and I think that is important because we want to make sure that the asset is protected. If we look at his Supplementary Order Paper, we see in subsection (2) of section 119B, “Applications for transfer of quota”, that a commercially qualified iwi “(a) is recognised by Te Ohu Kai Moana Trustee Limited as a mandated iwi organisation: and (b) holds, for all relevant quota management stocks, registered coastline entitlements as provided for by section 11; and (c) can demonstrate a positive return to iwi members by means of an increase in shareholder value over a period of not less than 3 consecutive years.” I think that sets a hurdle, sets a bar, which is very important. It is not just a case of giving quota away for the sake of it because it sounds good or because it is expected. If we want to maintain the asset, the amendments on this Supplementary Order Paper should be passed.

DARREN HUGHES (Junior Whip—Labour): I move, That the question be now put.

PITA PARAONE (NZ First): I want to take a call with regard to Supplementary Order Paper 257, which has been advanced by Dr Mapp. I should say from the outset that I am a little like the honourable member from ACT, in that although I have some concerns about that Supplementary Order Paper I think I will tend to support it. Anything that helps to advance the transfer of quota as soon as possible to iwi ought to be supported, and I think that Supplementary Order Paper 257 does that by recognising those iwi that are already well advanced in terms of how they have managed their quota to date.

Mr Mapp has suggested that three criteria should be the threshold to be met before iwi should receive their quota. One is that there should be a mandated iwi authority. I have no problem with that. The second criterion is that the iwi should hold a relevant quota entitlement. That, in itself, excludes a number of iwi groups. I take on board the comments that were made by the honourable member for ACT, when he made reference to the use of the word “hapū”. In fact, he actually suggested that the word “hapū” should be substituted for “iwi”. I want to say that for the past number of years when quota has been allocated, it has not been able to be allocated to hapū. Why is that? It is because Te Ohu Kai Moana has determined that quota should go only to iwi, and therefore hapū have been excluded from that opportunity. That is in spite of hapū actually signing the Treaty of Waitangi, which this bill is all about. The third of Dr Mapp’s criteria is that iwi groups, in order to benefit from the provisions on that Supplementary Order Paper, should have to demonstrate a track record of increasing shareholder value over a 3-year period. Now I know that, first, hapū will not be able to do that, and, second, some iwi groups would have difficulty in providing that evidence. So I suggest that there is every reason to maintain the essence of the bill.

But if we are to give credence to promoting the transfer of the assets as quickly as possible to iwi, then Supplementary Order Paper 257 certainly recognises those iwi that have already demonstrated their ability to operate in a commercial area, and to increase their shareholder value. I signal our support for that Supplementary Order Paper.

Hon TAITO PHILLIP FIELD (Minister of State): I move, That the question be now put.

LINDSAY TISCH (Junior Whip—National): I raise a point of order, Mr Chairperson. I know that the Minister will possibly move a closure motion. It was very evident from the Opposition side of the Chamber that three members were on their feet and calling—my two colleagues here, and the ACT member Stephen Franks—before the Minister thought about going for the call. You waited, hoping he would seek the call, and our people on the Opposition side of the Chamber were seeking the call. I think it is beholden on you to accept our position, and to accept calls from the Opposition before accepting the Minister’s call. He was obviously not prepared for the closure motion, and he was not paying attention. In my view and the Opposition’s view, some extra calls should be allowed.

The CHAIRPERSON (H V Ross Robertson): I thank the honourable member for his contribution, and I say this. It is not a race for whoever jumps up first to get the call. The Government side had previously had two people who had risen and sought the closure motion. I looked to that side because I was expecting the call. The call eventually did come, and I am accepting it.

A party vote was called for on the question that the question be now put.

LINDSAY TISCH (Junior Whip—National): I raise a point of order, Mr Chairperson. The Minister did not actually put the closure motion. You said that you would accept it, but he did not actually put it.

The CHAIRPERSON (H V Ross Robertson): I am sorry; I thought he had put it.

LINDSAY TISCH: Before he spoke I brought up a point of order, because I knew what he was going to say. Then you overruled me, but at the same time you accepted the closure motion, which he did not actually put.

The CHAIRPERSON (H V Ross Robertson): I again thank the honourable member. It is my recollection that the Minister did actually move the motion, but I did not put the question because the member took a point of order. I can make mistakes, like anybody else, but I am of the opinion that the Minister did move the motion. As the member says he did not, then I have to ask the Minister whether he did. Did the Minister move the motion?

Hon TAITO PHILLIP FIELD (Minister of State): Yes, I did.

The CHAIRPERSON (H V Ross Robertson): I thought he did. Thank you very much.

A party vote was called for on the question, That the question be now put.

Ayes 61

New Zealand Labour 51; United Future 8; Progressive 2.

Noes 56

New Zealand National 27; New Zealand First 12; Green Party 9; ACT New Zealand 8.

Motion agreed to.

The question was put that the amendment set out on Supplementary Order Paper 257 in the name of Dr Wayne Mapp to Part 3 be agreed to.

A party vote was called for on the question, That the amendment be agreed to.

Ayes 47

New Zealand National 27; New Zealand First 12; ACT New Zealand 8.

Noes 70

New Zealand Labour 51; Green Party 9; United Future 8; Progressive 2.

Amendment not agreed to.

The question was put that the amendments set out on Supplementary Order Paper 255 and Supplementary Order Paper 259 in the name of the Hon David Benson-Pope to Part 3 be agreed to.

Amendments agreed to, and Part 3 as amended agreed to.

Part 4 Settlement quota interests, sales and exchanges of settlement quota, related restrictions, and option to purchase

PHIL HEATLEY (National—Whangarei): Part 4 largely deals with issues to do with restrictions on the sale of and swap of quota. This is a vexed issue, as the Hon Richard Prebble put to the Committee in the debate on Part 3. Members will recall his arguments regarding the freedom of Māori to buy and sell quota outside the Māori pool. As the legislation stands currently, there are limitations on Māori in that they can sell quota obtained through this inheritance, if one likes—under the 1992 deed of settlement—only to other iwi groups, to Te Ohu Kai Moana Trustee Ltd, or to other Māori. That raises the question of how that affects the value of the quota itself, in the sense that there is a ring-fenced market for purchase of the quota. Also, the capital items involved in the settlement, such as trucks, fishing-boats, and all those other assets, have to be sold within the Māori pool, and their value is also in question. In terms of limitations on realising the value of fishing operations and assets, the rule that capital items, quota, or shares are to be sold within iwi only, and the right of first refusal process that requires an iwi to sell quota species separately rather than as a bundle of quota, certainly do affect the value of those capital items.

However, although the restriction on the sale of shares and quota has the potential to affect their value, and we in the National Party certainly acknowledge that—and Māori who came to the select committee acknowledged time and time again that it would affect their value—Māori also told us again and again, individually, in whānau groups, in hapū groups, and in iwi groups, that the effect on value is a consequence accepted by them and supported by them, because of the understanding that Māori through the generations must benefit from the settlement. In fact, that is a fundamental principle in the allocation model. So Māori came to us and said that they accepted they might take some hit on the value of their quota or their capital items, if they were able to trade only within Māoridom. They accepted that provision being in the legislation, because they understood that Māori through the generations must retain ownership and be the beneficiaries of this asset. That is the argument they put to us. Although we asked them again and again whether they realised what the consequences of that would be, they kept coming back and saying that they did, that it was their decision, and that that was what they wanted us to pass in the House with regard to their asset.

So of course it is quite a vexed question. The appeal by the Hon Richard Prebble in the Chamber earlier this afternoon in relation to this issue was well-thought-out. It has merit and cannot be ignored. It is simply that Māori accept the consequence of their decision, and still want to box on with these clauses.

Amendments were made to Part 4, particularly to clause 127. Members will see that clauses 127A to 127C have been added. They ensure that iwi can still maximise the price they receive through sales being offered within the Māori pool. Through those amendments, they will now be able to sell the quota either in individual parcels or as collective stock. The original bill, as tabled, contained restrictions on Māori splitting up the quota and selling them as individual stock, or doing the reverse and selling a bundle of quota. We have no idea what the reason for that rule was. Perhaps it was just an oversight. However, now Māori can actually split the quota into individual stock, or sell quota as a bundle if they wish. Another addition to Part 4 is clause 132A, which also allows Māori to pool small parcels of quota for sale.

Hon GEORGINA TE HEUHEU (National): Part 4 deals with restrictions on iwi in relation to their assets—their quota. The many restrictions on iwi in the way that they manage their assets were signalled earlier. It is a worry. It is a vexed area, obviously. The major submission made by Te Ohu Kai Moana—the Treaty of Waitangi Fisheries Commission—to the Fisheries and Other Sea-related Legislation Committee was that somehow an allocation model had to be found that would recognise that the settlement was an intergenerational one—that its benefits must flow through to coming generations. I as a Māori understand—but not just me; all of us can understand—the importance of such a concept. None the less, it does seem that we are saying to Māori that we recognise their claim to the fisheries, we recognise that the Treaty of Waitangi refers to fisheries, and we recognise that in 1992 the fisheries settlement was proceeded with, but now, in the 21st century, we are saying how it is to be allocated, and there will be restrictions on the way that Māori can deal with it, restrictions relating particularly to the sale of quota.

So a dilemma lies in there for the Committee—there is no doubt about that. Mind you, I often thought, and I am sure my colleagues and other colleagues on the select committee would agree with me, that the Treaty of Waitangi Fisheries Commission used that excuse far too many times. Its argument was that the select committee could not make any changes, because the settlement was a complete package, and if one part of it was altered, then the whole thing would be dismantled. Ultimately, the select committee did not accept that argument, but I think it underpins this issue of an intergenerational settlement. Therefore, the need to put some restrictions on how iwi can deal with their quota is a real issue. It was an issue for the select committee, and it remains an issue now.

I suppose that, ultimately, what members need to guard against—and I listened closely to the Hon Richard Prebble’s comments on this issue; I certainly appreciate the underlying thrust of his contribution to the Committee this afternoon—is the risk that, long term, we are accused of not making sure the asset was maintained. Fisheries are named in the treaty as the property of Māori, and a fisheries settlement was reached in 1992 that recognised that Māori had a property right to fisheries. It recognised that the Crown had to reach an agreement, which it did, to ensure that Māori became stakeholders in what might be called the current property in terms of fish—which is quota, basically—and, of course, the income that flows from it. Although nobody in this Chamber wants to see assets lost or frittered away—and nobody need take from that that I do not have any confidence in the ability of Māori to manage their assets—in the long term there is a risk that a future generation might come back to Parliament and say that, yes, we settled the fisheries issue and allocated quota to Māori, but we did not, essentially, take proper steps to make sure that that asset was maintained and sustained, and, some generations later, some of it has been lost. It provides a quandary for parliamentarians.

STEPHEN FRANKS (ACT): It has been a privilege to come down to the Chamber without having done, in a sense, all the homework, and without having been through the select committee hearings, and hear what the previous National Party speakers have talked about. They have said that Māori came before the Fisheries and Other Sea-related Legislation Committee and said that they realised the consequences—I think those were the words used—of this measure, that they realised that it would effect a discount of the value of their assets, but they wanted it because they want these assets to be available to benefit future generations. I say that it has been a privilege to come down here and hear that, because I myself would find it quite difficult to withstand that kind of argument. As a commercial lawyer I often saw families where the founder, the entrepreneur, the person who had built the family fortune, was desperately keen to make sure that the asset endured. Those people tried to create structures that would ensure it would not get taken by the next generation, who were often less worthy, and frittered away. They tried to make it into the equivalent of a seat for the family—something that would make sure the family did not sink back into obscurity and normalcy. So I can understand the submissions and the sentiment.

But I do not believe that that excuses this Parliament for not addressing the fact that this measure is also deeply in conflict with the Treaty of Waitangi; neither does it excuse this Parliament from at least recording that we have not permitted earlier generations the excuse of sincerity and good intentions. We have rounded on earlier generations who made similar compromises—sometimes highly paternalistic compromises, but we recognise that they were compromises—and have treated them as though they had some kind of evil intent. A very simple example—and I think there is a parallel in this bill—is our rounding on those generations who insisted on Māori speaking English at school. The leaders, both Māori and Pākehā, of those generations could see no way for Māori to advance if they were not part of the world, but we now treat that as evidence of some kind of bad intent.

I believe that future generations will look at what we are passing in this part and draw the same conclusion. And they may be motivated by greed, because they will come back and say that Māori did not benefit from the locking up of the asset. A few Māori will have benefited from the locking up of it—those who pull the levers in iwi organisations—but what happens to groups such as Ngāi Tahu who believe that the overall entity is heading in very much the wrong direction, that the majority, who will be the only buyers, are wrongheaded, and that they cannot extract the genuine value? In effect, it is a squeeze-out, and they are squeezed out at less than true value. Ultimately, when the assets have been devalued and it is quite patently clear that those who end up in control are incompetent, they will pass to someone else at a gross undervalue. That pattern is repeated time and time again in family companies and in listed companies. It is the pattern of commerce where assets pass out of the hands of those who are less competent into the hands of those who are smarter.

The problem with this bill is that it will ensure that it happens at not the proper market value, which at least is a protection for those exiting, but at a value that is discounted because the control is locked up. This Parliament should know what it is doing. It will be the next generations that will come back and say: “Those fools should have realised they were breaching the Treaty of Waitangi. They were putting in a transfer restriction that article 2 clearly did not contemplate. How could they have done it?”. I believe that it is the sort of thing ACT is here for—that is, to point out that the emperor has no clothes. The member for Whangarei tells me that this restriction extends even to trucks and boats, that even those physical assets cannot be sold on a genuine open market—that one has to find some other Māori who wants to go fishing. I ask what will happen when the inside money says that fishing has become technologically overtaken by fish farming. This kind of hunting, which quota is all about, might be replaced by fish farming before we know where we are, yet Māoridom are expecting that this benefit will go down through the generations.

Hon DAVID CARTER (National): I thank the ACT member Stephen Franks for his interesting comments on Part 4. It seems to be an intriguing situation that such a significant restriction is placed on the trading of quota. My colleague Phil Heatley has pointed out to me is that this is a development that Māori petitioners came to the Fisheries and Sea-related Legislation Committee and asked for. It seems to me that that issue is worthy of the consideration of the Committee. It is the asset of Māori, and no one else is claiming it is his or her asset. It is the asset of Māori New Zealanders. They came to the select committee and said they wanted to make sure that the asset exists in perpetuity for their people, and therefore they wanted restrictions to be imposed on them that meant they could trade quota only within iwi. Stephen Franks raised some very good points about the commercial sense of that, but at the end of the day if the asset is acknowledged as belonging to Māori, and Māori collectively came to the select committee and ask for that, then it is incumbent on this Parliament to allow that to happen.

I would like the Minister to take a call to tell us what proportion of quota is tradable on the open market, and what proportion of quota is being locked up via that request from Māori.

Darren Hughes: This member has never sounded so good.

Hon DAVID CARTER: I thank the member Darren Hughes for commenting on my voice. He, too, may one day be struck with the dreaded lurgy.

Phil Heatley: When his voice breaks he will be like that.

Hon DAVID CARTER: I think I will move on. My understanding of Part 4 is that quota that was originally part of the 1992 settlement, which I spoke about in an earlier contribution, is quota that will be locked, and the restricted trading right will apply to that portion of quota. But, as we all know, since the 1992 settlement there has been considerable acquisition of quota by the Treaty of Waitangi Fisheries Commission. It is my understanding that that quota, since it has been acquired on an open market, can equally be traded on an open market. The question I would like the Minister to help the Committee with today is this: what proportion of the quota involved in this particular deal is restricted quota, and what quota is open-market quota? It is a simply question, so I hope the Minister can help us with regard to that.

I conclude by repeating the points that I made earlier. At the end of the day Māori collectively came to the select committee, and said that they wanted to have this restriction imposed on them. It is for admirable reasons, I may add, which will ensure that quota is available for generation after generation. I accept that, but it seems that a very significant restriction is being placed on the value of the asset. I call on the Minister to answer those points for me.

SANDRA GOUDIE (National—Coromandel): In speaking to Part 4, I would like to draw members’ attention to clause 120, “Interpretation”. It states: “… bundle of assets means a bundle that contains 1 or more stocks of settlement quota and may contain other assets, including non-quota settlement assets and non-settlement assets.” Essentially, I assume that we are looking at any asset that is contained within a Māori entity as defined under this bill, and I think that raises some concerns, which have been alluded to by Stephen Franks. The fact is that one cannot sell the assets. If there are assets in items such as trucks or boats, one would really have to express some concern that one could sell a truck or a boat only to another Māori person or entity as defined in this bill. That is patently nuts. Perhaps the Minister could take a call on that. Two issues have now been put on the table for the Minister, and he is yet to take a call on either of them. One is the area around assets, and assets that are not necessarily quota and not necessarily settlement assets. Perhaps the Minister would like to clarify just what is meant with regard to non-settlement assets and those assets being able to be traded only within the areas defined within this bill.

The other question that the Minister has yet to comment on is the issue around the 19.5c in the dollar tax exemption for Māori organisations as identified in the taxation legislation. The Minister may like to comment on how Te Ohu Kai Moana Trustee Ltd fits in terms of that, because it is exempt from all other provisions of income tax, goods and services tax, gift duty, and any other taxes, levies, or impositions of the inland revenue Act with regard to the initial transfer of settlement assets. I would like to know from the Minister what the situation is from that point onwards for the other trustees or Māori organisations identified within this bill. If the Minister would like to comment on that, it would be most helpful. It certainly is not clear from the bill what the taxation provisions are for all the trusts and “trustee limiteds” that are identified within the bill.

I would like to get back to the bundle of assets. Someone who has settlement quota can lease it, so an asset-holder can lease those assets outside the realm of the companies and trusts, etc. identified within this bill. People just cannot sell quota. I am certainly concerned that trading in non-settlement assets and non-quota settlement assets is also restricted within the parameters of this bill. Again, I would like to hear the Minister take a call to explain that part of the bill, what it means, and why it is that maybe someone could not sell a boat to anyone other than the people identified within this bill. If I wanted to buy a boat from John Tamihere, I could not do that. He would be stuck with that asset, so that would devalue the assets considerably.

Stephen Franks: In his hands, definitely!

SANDRA GOUDIE: I laud Mr Franks’ humour. Some clarification is definitely needed, because that certainly constrains the commercial element of all the other aspects of this settlement bill. All the other aspects outside the quota are affected by the provisions of this bill, and it means a huge commercial constraint and a devaluing of the assets that are not identified as settlement quota assets. Could the Minister please take a call to give us an explanation of both that matter and the taxation regime for the trusts and “trustee limiteds” that are identified within this bill.

Hon TAITO PHILLIP FIELD (Minister of State): I move, That the question be now put.

LINDSAY TISCH (National—Piako): Part 4 talks about the restrictions on iwi with regard to the quota. It is an important part of the bill. In the debate on the previous parts we identified the point, which I also made in the last speech, that in 1992 when we had the quota settlement, it was actually a property right. That was established back in 1992, and here we are 12 years later, with an opportunity now to use the quota and to be able to have it transferred out to iwi. The point made in the debate on the previous part by my colleague Dr Mapp was that there need to be very clear mandated restrictions on who can access the quota. The people concerned need to have business acumen, to be commercially viable, and to meet minimum standards. We believe those sorts of points are important, but unfortunately Dr Wayne Mapp’s Supplementary Order Paper was voted down.

Part 4 actually deals with the same sorts of things that Dr Mapp talked about, so I will look at the outline of that part. Clause 120AA, “Outline of this Part”, states it provides for: “(a) the registration under the Fisheries Act 1996 of a settlement quota interest against quota shares owned by asset-holding companies or subsidiaries of asset-holding companies; and (b) a general restriction on the transfer of settlement quota; and (c) the basis on which settlement quota may be disposed of; and (d) exceptions to the general constraint on disposal, including provisions for the exchange, of settlement quota; and (e) an option to purchase (right of first refusal), with a procedure for selling bundles of assets that include settlement quota.” So I think if we look at what is required there, we see there are some constraints.

One of the issues that my colleague the Hon Georgina te Heuheu mentioned was that it could well be, in years to come, that Māori come back and say that yes, they had quota and it was transferred to them, but there were not the provisions in place to maintain its sustainability in the long term. That is a real threat to what we see in this part, remembering that Māori have come and said that they want to be able to share, and have the transfer of, quota, but that they also want to ensure, for the benefit of future generations, that there is actually sustainable management in place, in order to maintain the species and to maintain access to the asset that is there by right. That right was determined in the 1992 settlement, but we have to be very careful that the resource—the asset—is not depleted. As we have gone through this debate this afternoon, we have seen that the process can leave itself open to abuse.

We have some concerns about the bill, but we are happy to support it through its passage today. I would like the Minister in the chair, David Benson-Pope, to take a call. A number of concerns have been expressed, and I would certainly be interested to know what his view is. As we are supporting the bill it is not something that is a major issue, but the Minister has an opportunity to set members’ minds at rest on those things, and we believe that is important.

To summarise, Part 4 is about the limitations on realising the value of the fishing operations through the sale of capital items, quotas, or shares of iwi or Te Ohu Kai Moana Trustee Ltd, and the right of first refusal process that requires an iwi to sell each quota species separately, rather than as a bundle of quota. It was included in the capital asset; that is how it was introduced. There were some changes made—they are now reflected in the bill—and we support them.

JANET MACKEY (Labour—East Coast): I move, That the question be now put.

A party vote was called for on the question, That the question be now put.

Ayes 61

New Zealand Labour 51; United Future 8; Progressive 2.

Noes 56

New Zealand National 27; New Zealand First 12; Green Party 9; ACT New Zealand 8.

Motion agreed to.

The question was put that the amendments set out on Supplementary Order Paper 255 in the name of the Hon David Benson-Pope to Part 4 be agreed to.

Amendments agreed to.

A party vote was called for on the question, That Part 4 as amended be agreed to.

Ayes 101

New Zealand Labour 51; New Zealand National 27; New Zealand First 12; United Future 8; Progressive 2; Māori Party 1.

Noes 17

Green Party 9; ACT New Zealand 8.

Part 4 as amended agreed to.

Part 5 Dispute resolution

Hon GEORGINA TE HEUHEU (National): Part 5 deals with dispute resolution procedures, and provides for the resolution of disputes over specified decisions, including a requirement that decisions be notified to the parties involved, and the application of an extended jurisdiction for the Māori Land Court. There are two issues that I want to deal with. I will deal with the Māori Land Court issue first.

As is clear from this bill, it will be the case, and in fact the bill provides for it, that the Māori Land Court is to be given an extended jurisdiction. Of course that means that it will be given more work. Currently, of course, the foreshore and seabed legislation is doing the rounds with hearings around the country, which also will extend the jurisdiction of the Māori Land Court, so it will have more work there as well. I just want to flag a concern that I think the Fisheries and Other Sea-related Legislation Committee also signalled, but probably not much stronger than that, that if one is going to put a dispute resolution in place that may involve the Māori Land Court, then it behoves this Parliament to make sure that that forum is properly resourced. Nearly all members of Parliament will stand and say: “Yes, we want to see the assets transferred out to Māori as soon as possible so that they can get their economy going forward, which was promised by the 1992 settlement.”

Not a lot of that means much if, in fact, they do run into disputes and find that they are waiting around for fixtures and hearing dates in the Māori Land Court because there are not sufficient resources for that. I just want to raise that issue again.

The other issue I shall talk briefly about in my contribution is the issue around coastline entitlements. Under the bill, assets cannot be transferred to iwi until they have a mandated iwi organisation that is recognised by Te Ohu Kai Moana Trustee Ltd, until they have asset-holding entities and membership registers, and in particular until they have concluded their coastline and other agreements with other mandated iwi organisations for all stocks for which they hold an entitlement.

The bill as introduced made it so that assets could not transfer until there was full agreement on the coastline between adjoining iwi. The select committee came to the conclusion that it was far too onerous, that it could result in the transfer of assets being unnecessarily held up, and some amendments have been proposed, whereby where two iwi agree, say, on 90 percent of their coastline entitlements, and 10 percent remains in dispute, then transfer of assets can occur relative to that 90 percent. So iwi will go into the dispute resolution process on the 10 percent only. As I said, that was agreed to by all the committee. National members certainly thought that that was a big improvement, because originally it made no sense at all to hold the lot up. We have seen how iwi have been very litigious towards each other in recent times, and there was no sense in holding up a transfer of assets if there was dispute only around a small part of the coastline entitlement. It is a coastline agreement. It is on the basis of the coastline entitlement that assets will flow.

I believe that our colleague Pita Paraone has a Supplementary Order Paper in relation to this part that I am sure he will address shortly and will add a refinement.

PHIL HEATLEY (National—Whangarei): Part 5 deals with the dispute resolution process. Where there is dispute over issues such as coastline, or any other issue to do with governance of a particular iwi organisation such as Te Ohu Kai Moana, Te Ohu Kai Moana Trustee Ltd, or Aotearoa Fisheries, Part 5 makes it clear that there is a way forward for Māoridom. I will not dwell too much on the excessive need—we might say—within Māoridom to have a disputes resolution process, but it is fair to say that this country has seen that often Māori groups do not agree. There is dispute particularly over tribal areas and where the boundaries have been. It certainly should not come as any surprise that changes of boundary amongst different hapū, iwi, and whānau groups occurred over the centuries and undoubtedly happened in this country, and it has, just as it has happened in other countries such as the United States of America with its indigenous people, and in Australia, and European nations. There will always be changes in boundaries.

However, it is particularly pertinent to this legislation, simply because the allocation model of inshore quota of various fisheries such as snapper, mullet, flounder, and all sorts of inshore species, is largely dependent on the length of coastline that can be attributed to a particular iwi grouping. Therefore, by definition, the length of coastline, where that coastline starts and stops, is intrinsically tied back to how much quota iwi groupings get and what value the final settlement will be. Around the fringes we will get debate about coastline, where it stops and where it starts.

Unfortunately, as introduced, this legislation saw that all assets were unable to be transferred to an iwi until it had concluded its coastline boundary agreements with neighbouring iwi. In other words, an iwi could not get any of its allocation if it was still arguing about the length of its coastline and where it stopped and started. That meant that a dispute over a few kilometres of coastline, whether it was warranted or just vexatious, could hold up the allocation of all assets over the entire coastline. So a disgruntled iwi group could hold up the allocation for some other iwi group, just because they were disgruntled, and we saw that as quite absurd. Changes were made at the select committee, and Pita Paraone will improve on them again through a Supplementary Order Paper that he has tirelessly put together and put his name to. However, the select committee did come some way to improving on that current situation.

The amendments now incentivise agreement by allowing assets relating to the undisputed coastline to be transferred immediately, while the assets relating to the coastline that is in dispute will be set aside pending coastline resolution. In other words, if 95 percent of an iwi group’s coastline is not under dispute, if there is agreement that that coastline is relative to a particular iwi, always has been, and no one is going to argue about it, then the assets and the quota relating to that coastline can become the iwi’s and be allocated to it, whereas the 5 percent that is still under dispute can be held back from allocation until dispute resolution occurs.

STEPHEN FRANKS (ACT): This short part raises an issue of major significance and I do hope the Minister realises that today, of all days, he should be prepared to speak on this part. Part 5 states that disputes will go to the Māori Land Court. The Māori Land Court is under a cloud at the moment. It has been put under a cloud by this Government. The Māori Land Court was being taken to the High Court for conflict of interest. That is a three-word term for bias. The bias alleged by this Government was that someone who had iwi affiliations could not sit on a matter that touched that iwi. How will we find Māori Land Court judges who do not have an interest in an argument involving a settlement? Every Māori Land court judge who has any Māori inheritance will have an interest one way or another in who gets part of the settlement.

Pita Paraone: There will be non-Māori judges.

STEPHEN FRANKS: I can think of one. If Pākehā judges sit on it, perhaps that may work. If that is the case, why was it not just sent to the High Court? Why were those disputes not left for resolution with the benefit of the impartiality that is available to every other commercial entity in this country? Today of course the Government has done some sort of a deal with the Māori Land Court and it has withdrawn its application. It says that it is thinking about whether it will go ahead and try to get an adjournment of the case brought by Ngāti Porou on the seabed and foreshore. What that says about this part of the bill is that it has woken up to the likelihood that the Māori Land Court is hopelessly compromised.

Sitting suspended from 6 p.m. to 7.30 p.m.

The CHAIRPERSON (H V Ross Robertson): Prior to dinner, at 6 o’clock, the Committee was considering Part 5 of the Maori Fisheries Bill. The honourable member Stephen Franks was speaking. He has 3 minutes remaining, if he wishes.

Hon RICHARD PREBBLE (ACT): Mr Franks had to go to a Māori Language Week function, so he cannot speak. They were not prepared to alter Māori Language Week for Parliament. But perhaps I could have leave so I can complete his speech.

The CHAIRPERSON (H V Ross Robertson): The House is the master of its own destiny. The member is seeking leave for that. Is there any objection to that course of action being taken? There is.

Hon RICHARD PREBBLE: Mr Speaker!

The CHAIRPERSON (H V Ross Robertson): Point of order—

Hon RICHARD PREBBLE: No, this is not a point of order. I am going for the call.

The CHAIRPERSON (H V Ross Robertson): OK. I call the Hon Richard Prebble.

Hon RICHARD PREBBLE (ACT): Thank you, and I thank the Government for now giving me 5 minutes, rather than 3, which I am sure was its intention. I draw the attention of the Committee to the fact that, under this part, all disputes that may occur with regard to fisheries—which is a very commercial matter—will be referred to the Māori Land Court. I do not know how many members have experienced dealings with the Māori Land Court, as I did, earlier in my legal career. Without wishing in any way to be disrespectful to that court—[Interruption] I do not wish to be disrespectful to that court. It is not a court. It is actually a tribunal. It is not equipped to handle those matters. There are possibly millions of dollars involved, and the questions could be highly commercial, and the judges who have been chosen have been chosen for their experience in Māori land law, not in commercial law.

This is another example of how this bill, instead of passing over fishing quota to Māori so that they can have it in the same way as any other New Zealander, has passed it over together with extraordinary red tape and obstacles that would damage the economic prospects even of a Ron Brierley, let alone a group of iwi who have never had to administer anything of this sort before. This part is an example of political correctness run rampant.

Hon Dover Samuels: What about?

Hon RICHARD PREBBLE: I am sure Mr Samuels could contribute to this part, and I wish he would, because, again, I think it is an insult not just to the House but also to all Māori that the Government is not prepared, at the Committee stage, to deal with the questions that are being asked. I have been listening to the questions being raised on this part. Questions have been raised by Mr Franks, who is Parliament’s leading commercial lawyer. He told the Committee that in his commercial legal experience, this part will be impracticable. It is also an unfair thing to be doing. I am not disputing the fact that Parliament is now handing over quota to Māori fisheries. That has already been done. What we now ought to be doing is ensuring that those who receive those resources are able to use them. It is a handicap not just on Māori but on all New Zealanders. If we are not able to handle the fishery efficiently, profitably, and sustainably, not just Māori but every single New Zealander will be the loser.

It is a great shame that the United Future party, which likes to say that it knows about small business, supports this part. Would United Future like to have a law passed that small-business men must go to the Māori Land Court to have commercial issues sorted out? Of course it would not. It would not do that to its worst enemy. Yet its members are quite prepared to sit in this Chamber and vote for this legal gobbledygook—this absolute nonsense. If any member opposite claims to be knowledgeable in commercial law—and I do not know of any—I would like him or her to get up to explain why the Government is supporting this part, how it will work in practice, and whether the Māori Land Court is equipped to handle the matter.

Would the Minister in the chair, David Benson-Pope, get up and tell us whether the Māori Land Court, in fairness, will get extra resources? Will it change the sorts of judges who have been appointed? Because its judges have not been appointed for their knowledge of commercial law. I cannot think of any Māori Land Court judge who has had any involvement in commercial law. There may be one, but I am running the list of present judges through my head, and I cannot think of one. Again, I do not say that disrespectfully. I just state it as a matter of fact. It seems to me that the only thing going for the Māori Land Court is the word “Māori”. I cannot see any other reason.

PITA PARAONE (NZ First): First of all, I stand in support of my amendments, in particular my proposed new clause 139A. Before I elaborate further, I want to make similar points with regard to my concern about extending the jurisdiction of the Māori Land Court to this issue. I reiterate my earlier concerns about this imposition on the Māori Land Court—a court that at the present time, given its workload, is not up to date with its work. The other concern is that it needs to be resourced properly, and I have my doubts as to whether that will occur. This bill will impose more work on the court, which, essentially, was set up to deal with land issues.

With regard to the coastline, in my earlier amendments I referred to the issue regarding the iwi who have already signed a deed of settlement with the Crown. As part of the deed, all parties involved were shown the actual boundaries that their claim covered. It seems to me that under this bill that agreement is not recognised. Again, it opens up the possibility of not only iwi but also those who wish to counterclaim against those iwi relitigating the issue of tribal boundaries and, not least of all, coastline.

I believe that the bill should recognise tribal boundaries where they have already been agreed under the settlement, because failure to do so would certainly allow litigants to go back to court and argue the very issues that have already been argued. Ngāi Tahu have spent exorbitant amounts of tribal funds defending their position and putting on the record their claim, and, as a consequence of High Court and Privy Council action, they have had their claim justified. With this bill, we have the possibility of tribes who do not agree with the Ngāi Tahu arrangement relitigating the issue. I just want to make sure that the Committee is aware of that, because I know that when future claims are settled, this very issue will come to the fore.

The new clause I am seeking to include in the bill addresses those issues, particularly where the dispute is based on facts or evidence previously raised in proceedings before a court and that relate to whether the area described in the relevant takiwā defining deed of settlement or takiwā defining enactment is, in fact, the takiwā of the defined takiwā iwi. Further to that, the proceedings did not result in a finding that that area is not the takiwā that defines takiwā iwi. Therefore, I think it is appropriate that my proposed clause should be inserted in the bill. Kia ora.

SANDRA GOUDIE (National—Coromandel): In speaking to Part 5, which is about dispute resolution, I would like to take up the concerns about the Māori Land Court. The bill states that if any disputes cannot be settled and are referred to the Māori Land Court, the court can make a determination but it is non-binding. Why on earth would anyone want to take a dispute to the Māori Land Court and have a decision made when it is non-binding? I can see the potential for the courts to be clogged up to some quite serious degree.

One of the minority views in the commentary refers to different iwi within the groupings of Hauraki, Te Ārawa, Ngāpuhi, and Ngāti Kahungunu that have a concern and a dispute with regard to their identification of their coastline and their entitlements within this bill. I suggest that they will seek an opportunity to relitigate their position in accordance with Part 5 and raise all the matters they have raised previously. I see in the Hui-ā-tau Treaty of Waitangi Fisheries Commission report that a number of these matters have been before the courts. The report states that the court dismissed all Ngāi Tahu’s claims against the commission. It also dismissed allegations made by the Urban Māori Authority’s Whata-Wickliffe and Thompson plaintiffs, including the latter’s allegation that Te Pūtea Whakatupu Trust would be inadequately funded. I am not sure of the relevance of that. However, the report states that the courts determined: “The appellant’s arguments that the Commission had consulted with a closed mind (because in all its reports it had stated its view that there were no inequities) cannot be sustained.”

Regardless of that, I suggest that Hauraki and some of the other iwi may seek to relitigate this whole process in accordance with the dispute resolution, because it has to do with the coastline and their entitlements and boundary issues in relation to that. I think that the Māori Land Court will become inundated with relitigation matters and will definitely need resourcing to deal with them. I think those cases will be long and protracted. It has taken about 10 or 11 years—

Hon Member: 12 years.

SANDRA GOUDIE: —12 years for this particular bill to get to this point. I suggest that those disputes could block the courts to that degree. So there are considerable concerns around that. For the decisions by the Māori Land Court to be only recommendations and not binding makes one ask oneself why any iwi would bother to take a case.

Earlier on the Minister was challenged to make a response with regard to trusts and say what their taxation rates would be. The report I referred to earlier states that the commission developed deeds and constitutions for the respective trusts and that each of those entities will have a role in the central management of some of the settlement assets after the Maori Fisheries Bill has been passed. It also states that discussions with the Inland Revenue Department have clarified the tax status of all those entities. The department has advised the commission that, based on the draft bill, Te Ohu Kai Moana, Te Pūtea Whakatupu Trust, and Te Wai Māori will all be charitable organisations for tax purposes. That means they will be paying 19.5c in the dollar.

One has to wonder how that weighs up against other organisations. Aotearoa Fisheries Ltd will be a Māori authority, and I presume it will pay the same sort of taxation rates as all other entities with that commercial status. However, it is not clear whether that is the case. Again, I ask the Minister to take a call in relation to Aotearoa Fisheries Ltd and clarify what tax status it will operate under to ensure there is a level playing field in the commercial world in relation to fisheries.

Hon DAVID CARTER (National): I also want to ask a question of the Minister about Part 5, “Dispute resolution”. I note from the preceding comments of my colleague Sandra Goudie that the Minister has not been in the habit of answering the questions that have been asked, but I hope he will consider doing so on this occasion.

My issue concerns the area of coastline that is still under dispute. I take the opportunity to congratulate the select committee on the work it has done, because the bill as introduced meant that areas that were still under dispute along coastlines tied up the whole allocation for the iwi involved. In an earlier contribution, the Hon John Tamihere said that it was National Government’s fault that this matter had taken 12 years to progress. That shows a scant regard for the facts.

This issue was initiated with the deed of settlement in 1992, and it was acknowledged at the time that it would take some time for Māori themselves to work out how to allocate the resource. Governments could have forced that issue, but to do so would have been silly and would have created more problems, as, I think, the Hon Dover Samuels is now acknowledging. What we have done is given Māori themselves time to come to an agreement around allocation. In most cases, I suspect, particularly regarding the allocation pertaining to coastline, we now find that agreement has been reached, and that is great.

But what I want to know from the Minister—and I am hoping he will be able to answer this—is what area is now resolved and what are the areas that are unresolved, because then we may have that sort of knowledge, and as MPs we are in a position to help facilitate these sorts of resolutions so that further allocation can occur. After all, that is what this whole matter is about—it is about making sure that this resource is available for the betterment of Māori. I say good luck to them, and we should let them get on with the job. That is why we are here, 12 years after the original deed of settlement. But the select committee was clearly of the view that without the very sensible amendment that it came to, the allocation process was unnecessarily tied up, so that over an area of, perhaps, 1,000 kilometres of coastline, there was general agreement on, say, 950 kilometres but there was a dispute over the remaining 50 kilometres.

Hon Dover Samuels: Give the other 50 to Pākehā.

Hon DAVID CARTER: Dover Samuels is extremely generous tonight. I wonder whether he has been upstairs to the ninth floor to make sure he has had that approved. [Interruption] No, I do not think he has, but I thank him for his generosity, even though it was not well meant.

The issue around dispute resolution and the change that occurred in the select committee now mean that the allocation in the case I have just given can occur with 99.5 percent of the resource, and there can be further discussions to try to resolve the differences on the remaining 50 kilometres. So that is a vast improvement. It would be helpful if the Minister could take a call and define the amount of coastline involved that is still tied up in dispute. It does not look as though he will take a call. I was certainly hopeful that the Minister might answer a few questions, but no. We are in the Committee stage, debating the Maori Fisheries Bill, and Mr David Benson-Pope is the Minister in the chair—and there is little point in asking questions if he is intent on ignoring them or refusing to answer.

DIANNE YATES (Labour—Hamilton East): I move, That the motion be now put.

The CHAIRPERSON (H V Ross Robertson): The member moved the closure motion wrongly, and therefore I cannot accept it.

PITA PARAONE (NZ First): I am talking with regard to my amendment, and, in particular, to the new clause I would like to insert, clause 145B. But before I go on, I would ask whether there can be a slight amendment. It is only a typo with regard to where the insertion should take place. The amendment refers to page 182, but it should read “page 183”. It requires the mandated iwi organisation of an iwi whose takiwā is defined in a deed of settlement or enactment to retain quota allocated to it if the entitlement of that organisation to the quota is the subject of a dispute under Part 5 of this bill, or proceedings in a court. In that case, the mandated iwi organisation is required to retain the quota unencumbered until either the date on which the dispute is resolved or judgment is given or the proceedings are withdrawn; or the date 2 years after the commencement of the dispute or proceedings—whichever is the earlier.

I hope that there will be agreement on the inclusion of this provision, because again, as I said earlier, I would not like to see this whole issue being relitigated between Māori and the Crown, when there has already been agreement to a particular description, boundary, or whatever we might call it. So I ask that this new clause—after the minor amendment I requested earlier—be inserted in the bill.

DARREN HUGHES (Junior Whip—Labour): I move, That the question be now put.

A party vote was called for on the question, That the question be now put.

Ayes 70

New Zealand Labour 51; Green Party 9; United Future 8; Progressive 2.

Noes 47

New Zealand National 27; New Zealand First 12; ACT New Zealand 8.

Motion agreed to.

The question was put that the following amendment in the name of Pita Paraone to Part 5 be agreed to:

to insert the following new clause:

139A Disputes relating to coastline claim by defined takiwa iwi

(1) Nothing in this Part applies to a dispute in relation to a coastal claim submitted under clause 7A of Schedule 5 (coastline claims for takiwa of defined takiwa iwi) if—

(a) The existence of the dispute is not notified in writing to the mandated iwi organisation of the defined takiwa iwi within 1 year after the coastal claim to which the dispute relates was submitted to Te Ohu Kai Moana Trustee Limited; or

(b) the dispute is—

(i) based on facts or evidence that have previously been raised in proceedings before a Court that relate to whether the area described in the relevant takiwa defining deed of settlement or takiwa defining enactment is in fact the takiwa of the defined takiwa iwi; and

(ii) the proceedings did not result in a finding that that area is not the takiwa of the defined takiwa iwi.

(2) A party to a dispute in relation to a coastline claim submitted under clause 7A of Schedule 5 may not commence proceedings in any Court in relation to the dispute if—

(a) 1 year has elapsed since the coastal claim to which the dispute relates was submitted to Te Ohu Kai Moana Trustee Limited; or

(b) subsection (1)(b) applies to the dispute.

A party vote was called for on the question, That the amendment be agreed to.

Ayes 47

New Zealand National 27; New Zealand First 12; ACT New Zealand 8.

Noes 70

New Zealand Labour 51; Green Party 9; United Future 8; Progressive 2.

Abstentions 1

Māori Party 1.

Amendment not agreed to.

The question was put that the following amendment in the name of Pita Paraone to Part 5 be agreed to:

to insert the following new clause:

145B Retention of quota by defined takiwa iwi pending dispute resolution

(1) This section applies to quota allocated to the mandated iwi organisation of a defined takiwa iwi if the entitlement of that organisation to that quota is the subject of—

(a) a dispute to which this Part applies in relation to a coastline claim submitted under clause 7A of the Schedule 5 (coastal claims for takiwa of defined takiwa iwi); or

(b) proceedings in a Court in relation to such a dispute, the commencement of which is not prohibited by section 139A(2).

(2) The mandated iwi organisation of a defined takiwa iwi must not transfer, mortgage, charge, or encumber any quote to which this section applies before the earlier of—

(a) the date on which—

(i) the dispute is resolved under this Part; or

(ii) judgment is given in the proceedings, or the proceedings are withdrawn; and

(b) 2 years after—

(i) the dispute in relation to the quote is notified in writing to the mandated iwi organisation of the defined takiwa iwi; or

(ii) the proceedings are commenced.

(3) A Court must not make any order preventing the mandated iwi organisation of a defined takiwa iwi from transferring, mortgaging, charging, or encumbering any quota to which this section applies after the expiry of the period specified in subsection (2)(b).

(4) If, after the expiry of the period specified in subsection (2)(b), a Court gives judgment against the mandated iwi organisation of a defined takiwa iwi in relation to a dispute or proceedings relating to quota to which this section applies, the Court must not order the mandated iwi organisation of the defined takiwa iwi—

(a) to transfer all or any of the quota to the person in whose favour the judgment is given; or

(b) to pay compensation to that person in respect of loss of income from the quota.

A party vote was called for on the question, That the amendment be agreed to.

Ayes 47

New Zealand National 27; New Zealand First 12; ACT New Zealand 8.

Noes 70

New Zealand Labour 51; Green Party 9; United Future 8; Progressive 2.

Abstentions 1

Māori Party 1.

Amendment not agreed to.

The question was put that the amendments set out on Supplementary Order Paper 255 in the name of the Hon David Benson-Pope to Part 5 be agreed to.

Amendments agreed to.

A party vote was called for on the question, That Part 5 as amended be agreed to.

Ayes 101

New Zealand Labour 51; New Zealand National 27; New Zealand First 12; United Future 8; Progressive 2; Māori Party 1.

Noes 17

Green Party 9; ACT New Zealand 8.

Part 5 as amended agreed to.

Part 6 Transitional and miscellaneous provisions, repeal, and amendments

The CHAIRPERSON (H V Ross Robertson): The debate on Part 6, comprising clauses 146AA to 166, includes debate on schedule 8.

PHIL HEATLEY (National—Whangarei): I find it intriguing that the Labour Government’s Māori members, who had so much to say on the marae about the Maori Fisheries Bill and Māori issues, particularly during the last election, and who had so much to say at the select committee about Māori fisheries issues—particularly the issues relating to the electorates that they were voted in to represent—have had nothing to say during the Committee stage of this bill. Dover Samuels has said nothing on the Maori Fisheries Bill. This bill is going to affect 400,000 Māori in this country, 60,000 of whom Dover Samuels is supposed to represent, yet he has said nothing in this Parliament to represent his people. What do members on this side of the Chamber say? Shame! Shame on Dover Samuels! Shame on his colleagues! Is it any wonder the National Party is looking to disband the Māori seats? Those members are so ineffective in Parliament.

We are talking about Part 6, “Transitional and miscellaneous provisions, repeal, and amendments”, which affects various organisations, among other things, that have worked over the last 12 years in getting this Māori fisheries settlement off the ground. Not least of all, we are looking at the clauses that deal with the issue of the Treaty of Waitangi Fisheries Commission, which has now worked for 12 long years, following the 1992 Māori fisheries settlement, to get some sort of consensus up and down New Zealand on that settlement. It is now worth roughly $800 million, which is not that far off a billion, and it is certainly a substantial asset for Māori.

Although I made that criticism about Dover Samuels not speaking up on any part of this bill, I must say that he has worked hard on this issue for at least 12 years in the north, trying to get consensus and bring ideas.

With the passage of this bill, we finally say goodbye to the Treaty of Waitangi Fisheries Commission. One concern we have is that the people involved in that commission have an expectation they will be involved in the next commission, Te Ohu Kai Moana Trustee Ltd. We think that perhaps they think they have a job for life. The message in this bill is: “No, you haven’t; don’t think you have.” National, if it votes for this bill at the third reading, wants Māori to go forward with these assets. National wants Māori to go fishing instead of spending their time in the courts, to resolve their differences with other tribes, hapū, and whānau throughout this country, and to get on with the job. We are hoping that those involved with the fisheries commission will have little to do in the long term. This bill is a transitional bill. We are dealing with these issues in Part 6, about Te Ohu Kai Moana, its demise, if one likes, its last reporting and the standards required there, issues that it has resolved during that 12-year period, and how it now passes the baton on to Te Ohu Kai Moana Trustee Ltd.

It is interesting that those in charge of Te Ohu Kai Moana Trustee Ltd, unlike those involved in Te Ohu Kai Moana, must have commercial experience in the fishing world. That is what Māori asked for. They did not expect, at all, that those involved in the previous fisheries commission would automatically get their jobs back in the new one. Māori want people with commercial expertise to run, manage, and oversee their fisheries assets. National absolutely agrees with them.

There are issues to do with the employees of the fisheries commission—not just with directors on the board but also with employees and their liability in terms of unfinished or incorrect business that occurred while they worked with the fisheries commission. There are clauses that deal with continuity of employment, and certainly we want to see some expertise transferred across. There are clauses dealing with compensation for technical redundancy when the fisheries commission winds down, and issues to do with the Inland Revenue Department and the protection of names.

There are also some clauses that I think are quite important. Clause 164, “Protection of names”, states: “(1) No person may be incorporated or registered under any enactment or in any other manner using any of the following names: (a) Te Ohu Kai Moana; or (b) Te Kawai Taumata; or (c) Te Putea Whakatupu Trust; or (d) Te Wai Maori Trust.” I fully endorse that.

Dr WAYNE MAPP (National—North Shore): The provisions in Part 6 are aptly named transitional provisions. The problem is that the whole bill is transitional, and the reality is that the Government does not yet seem to recognise that.

Mr Heatley got the issue right when he asked why Labour’s Māori members—members who are on the Fisheries and Other Sea-related Legislation Committee—are not speaking today on the bill. That issue has been raised because the Government believes in the Māori seats; that is what it says, and it has members in them to prove that fact. So one would think that in the Committee stage, when we are debating Part 6 and are near the final part, those members would take the opportunity to explain why the bill has the character it has, and why it is very much a halfway step. I think even Mr Samuels recognises that. When members are accountable to their people, this Chamber in particular is the place where they should speak and hold forth to their people as to why they do or do not support a bill. That is what this Chamber is for. It is proof of the relevance of their being members of Parliament. Everyone in this Chamber knows how hard it is to get here. One expects members to take calls from time to time, and those members’ failure to do so is an indictment on the Māori seats. Part 6 gives the kind of opportunity that National expected those members to take.

I opened my speech by saying that the bill is transitional. We are talking about transitional measures. They are measures that take the Māori community from the Treaty of Waitangi Fisheries Commission to a new era. If only that were completely true! We all know—and I know that Mr Samuels recognises this—that it is not true. Just as Part 6 is transitional, so is this entire bill. We will be back in this House to deal with the final allocation.

Essentially, the Government is pretending that the offshore allocation will forever and a day be owned by Aotearoa Fisheries through its various intermediaries. That is not sustainable. Ultimately, the iwi will want to get hold of that quota directly. Simply to have a review after 10 years does not meet the measure of a suitable transition. That is our major concern on this side of the Chamber. It is why we have said that Mr Heatley, as the Minister of Fisheries, will in a few years provide the final bill that deals with the final allocation. Unfortunately—

Phil Heatley: Next year!

Dr WAYNE MAPP:—it will be later than next year—this bill does not meet the test. The provisions in Part 6 are transitional, and, frankly, it is not worth our analysing them in detail. We should be looking at the broader picture, because the bill itself is transitional. There will come a time when we have to revisit this whole thing. So long as Parliament keeps passing legislation to deal with other people’s assets, Parliament maintains the final responsibility to do the allocation. Would it not be a great thing if we could say to the Māori people of New Zealand that Parliament is getting off their back, and that it will no longer pass legislation dealing with their assets? Would it not be a marvellous thing to say that the end of paternalism has been reached? Unfortunately, with the passage of this bill we will not be able to say that, and that is a failure of this legislation.

SANDRA GOUDIE (National—Coromandel): In speaking to Part 6, I raise the point that there are a lot of miscellaneous provisions in this part. There are references again to the Māori Land Court and to the ability to apply for determinations through it. I suggest that that will be used extensively. I wonder how matters are going to be resolved, if they have to be resolved taking into account tikanga Māori and, of course, different tribal groups. The dispute resolution provisions in Part 6 are what I am talking about in terms of the Māori Land Court. If these matters are to be considered in light of tikanga Māori, which has special meaning for each of the different groups that will be applying for a determination, the litigation will be constant and ongoing, because how can one iwi contest the tikanga of another and come to a workable solution? The Māori Land Court will have its work cut out in trying to come to a determination. [Interruption] This is applicable to Part 6, as clause 140 relates to the resolution of disputes, and I am talking about people bringing disputes to the Māori Land Court.

The CHAIRPERSON (H V Ross Robertson): We are dealing with clauses 146 to 166.

SANDRA GOUDIE: I raise a point of order, Mr Chairperson. We are on Part 6, are we not?

The CHAIRPERSON (H V Ross Robertson): We are on Part 6.

SANDRA GOUDIE: This is all about dispute resolution, is it not?

The CHAIRPERSON (H V Ross Robertson): It is about transitional arrangements and also dissolving the Treaty of Waitangi Fisheries Commission.

SANDRA GOUDIE: So it does refer to dispute resolution, does it not? These matters I am raising pertain to Part 6, and they are also in Part 7, as well. They actually cross a few parts of this bill, Mr Chair. So shall I carry on?

The CHAIRPERSON (H V Ross Robertson): Carry on.

SANDRA GOUDIE: Now that we all know what is in this part, I will continue. I am focusing specifically on dispute resolution, and as I said earlier we have had concerns about, and court resolutions around, challenges to boundary settlements. That is why I am saying that there will be further disputes that end up going to the Māori Land Court. Is the court going to be properly resourced to handle those disputes? Those disputes will be lengthy and ongoing because it will be so difficult to make decisions, and iwi will be insistent on their positions with regard to what they consider to be their boundaries in accordance with their tikanga. I suggest to members that there will be substantial issues around that. I am quite sure that Hauraki, if not the other groups identified in this bill—Te Arawa, Ngāpuhi, and Ngāti Kahungunu—will contest their boundary areas or the areas that are defined.

In recent times, as this bill has been debated in the House, we have made a couple of amendments to the iwi groups that are recognised within it. That reinforces the contention that there will be ongoing disputes that will be taken to the Māori Land Court. I put it to members that it will be very difficult for the court to come to a determination on them. That is something we can look forward to. I would go further and suggest that this matter will take some years and be ongoing.

Those are some of the matters that have already been raised in the Committee by other people. I am sure that an iwi group like Hauraki will be putting a lot of time and effort into trying to further what it considers to be its rights in the context of this bill, and it will take the opportunity to have those matters raised yet again in the dispute resolution process, in spite of the fact that it has been turned down by the court.

Hon RICHARD PREBBLE (ACT): I am somewhat sympathetic to the previous member’s difficulties with the bill; that just shows how complicated it is.

I turn the attention of the Committee to Part 6, which we are actually debating, and to schedule 8. I have not heard any member refer to this, but there is an interesting point that members might like to look at. On page 279 we find that the Income Tax Act 2004—in other words, this year’s Income Tax Act—is being amended. That is almost a record, is it not? That Income Tax Act was passed this year, and this bill is already amending it. Members might care to recall that that Income Tax Bill was the biggest bill this House has ever passed.

When we look at the particular section of the Act to find out what is actually happening, we see that we are giving these new fishing companies the same tax status as Māori authorities. Why would anyone want to do that? I remind members that we have a race-based tax system in New Zealand. If ordinary New Zealanders—and when I say ordinary I mean non-Māori and, in fact, Māori, if they are not in a Māori authority—want to be a fishing company, they pay the company rate of tax, which is 33c in the dollar. These fishing companies are going to pay only 19.5c in the dollar. [Interruption] It is in the schedule—members should have a look at it. It has slipped through. I would like to see the Minister of Fisheries get up and explain why that should be. These companies are large companies. They are not small companies. These fishing companies have multimillion-dollar assets. In fact, Māori now control, I understand, over half the fishing assets of New Zealand. I put this to the Committee: how can a fishing company owned by non-Māori hope to compete?

In schedule 8, which we are now debating, Māori fishing companies are being granted a 19.5c tax rate. Where was that in the fishing settlement? Where did the Government say: “Oh, by the way, we are not only going to give you all these fishing assets but we will give you a nice new tax rate of just 19.5c in the dollar.”? I have to say I am not actually opposed to a tax rate of 19.5 in the dollar; I just want it for everyone else! A 19.5c tax rate is actually ACT’s policy. If it were up to us, no one would pay more than 19.5c. I would like to hear from the Minister that this provision is a first step towards the instituting of ACT’s policy—but I suspect that it is not.

Hon Dover Samuels: It’s in the right direction.

Hon RICHARD PREBBLE: The member says it is in the right direction. I suggest that some of the Māori members—who are actually, according to the polls, about to lose their seats—ought to get up and explain to their constituents that they—[Interruption] I can do the maths for the member, who seems to be complaining—I must have struck a nerve. He ought to be pointing out that what this Government is doing is introducing a new tax rate. And what is the basis of it? It appears to be race. There is no other reason.

I would like to hear from the Minister whether I am right. Are these new fishing companies that are being set up going to pay only 19.5c in the dollar, and if that is so, why? What is the equitable reason? Why should Māori pay 19.5c in the dollar and non-Māori pay 33c? Surely some member opposite would like to get up and explain it. If those members think it is a good thing, they should take credit for it. Surely we can hear about it.

This provision is buried in the bill, on almost the last page. There is no explanatory note. One actually has to go to page 1098 of the biggest statute ever passed in New Zealand to work out that this Government is slipping though a change in the tax regime so that Māori pay 19.5c and non-Māori pay 33c. I call that apartheid. I call that a tax based on race. I call it unfair. I call it unjustified. If the Government thinks it is justified, then why does a Government member not get up, proudly take credit for it, and explain to us why Māori should pay only 19.5c in the dollar?

PANSY WONG (National): I support the Hon Richard Prebble in his call for the Minister—

Sandra Goudie: I have already asked the Minister.

PANSY WONG: Of course, the Hon Richard Prebble is supporting the call from my learned colleague Sandra Goudie that the public would really want the Minister of Fisheries to take a call to clarify that position. I was reading a newsletter put out by the Treaty of Waitangi Fisheries Commission that seemed to support the point raised by my National Party colleague Sandra Goudie and the Hon Richard Prebble. It said, in effect, that the Inland Revenue Department believes that these entities will be paying a tax rate of 19.5 percent.

I think the Minister should take a call to explain to the commercial sector as a whole the reason for this preferential treatment being dealt to this big business. We are not talking about small business; we are talking about big business. The Labour Government likes to claim that this Maori Fisheries Bill, in effect, champions the ability of the Māori community to compete in an entrepreneurial way and be treated the same as any other commercial entity. The Minister should take a call to explain seriously this taxation position. I certainly believe that very unfair, generalised statements have been made, and they are reflected in these transitional provisions as well as in the rest of this Maori Fisheries Bill. It is as if the Māori community and Māori organisations cannot front up and compete on an equal footing with any other organisation. In effect, the sentiment of this bill is, to a certain extent, patronising and an insult to the Māori community. I am always very proud, coming from Canterbury, of what Ngāi Tahu has been able to demonstrate in managing the settlement process in a very commercial and competitive manner. It is now one of the largest employers in Christchurch. This bill should really aim to reflect that position. I am still waiting for the Minister to get up and answer that point.

I want to raise another issue relating to the transitional provisions in Part 6—more to the point, what has not been included in the transitional provisions. I had a discussion with the incoming Minister of Fisheries, the honourable Phil Heatley—next year he will be the Minister of Fisheries—and he says that he will address what is not being included in these transitional provisions. For example, these transitional provisions should cover the fact that the Māori Land Court will be handed the additional responsibility of settling disputes, but no resource allocation is being made to the Māori Land Court. That is hardly fair and will not make sure that any dispute gets a speedy resolution. I want the Minister to take a call to assure us that the Māori Land Court will be appropriately funded so that any disputes arising from this legislation are dealt with expediently. That is another matter I invite the Minister to take a call on.

The other question I would like the Minister to answer is why he will not propose an amendment to the transitional procedures that provides a sunset clause in terms of the provision that restricts these entities from selling their quota etc. on a commercial basis.

Hon MARIAN HOBBS (Minister for the Environment): I move, That the question be now put.

A party vote was called for on the question, That the question be now put.

Ayes 61

New Zealand Labour 51; United Future 8; Progressive 2.

Noes 56

New Zealand National 27; New Zealand First 12; Green Party 9; ACT New Zealand 8.

Abstentions 1

Māori Party 1.

Motion agreed to.

The question was put that the amendments set out on Supplementary Order Paper 255 in the name of the Hon David Benson-Pope to Part 6 be agreed to.

Amendments agreed to.

A party vote was called for on the question, That Part 6 as amended be agreed to.

Ayes 101

New Zealand Labour 51; New Zealand National 27; New Zealand First 12; United Future 8; Progressive 2; Māori Party 1.

Noes 17

Green Party 9; ACT New Zealand 8.

Part 6 as amended agreed to.

Part 7 Amendments to Te Ture Whenua Maori Act 1993

PHIL HEATLEY (National—Whangarei): Part 7 relates to amendments to the Te Ture Whenua Maori Act, which, of course kicks in when Māori have to go to the courts. In particular, Part 7 deals with mediation issues. An issue to do with mediation might arise in relation to coastline boundaries, to the population of a particular iwi group, particularly those that are withdrawing from a larger iwi—perhaps in the case of Ngāti Hine from Ngāpuhi, or Rongomaiwahine from its principal iwi group—or to other issues that may need to be resolved.

There is no doubt in my mind or in the mind of the National Party that Māori groups will go to mediation in relation to this legislation. It is vexed legislation, simply because it tries to push forward the situation of the Māori settlement so that Māori can just go fishing. But in many ways the legislation falls short because it contains significant flaws, and we have been through those clearly clause by clause this evening and last week.

However, I would particularly like to address the mediation clauses in this part. We may have a situation, such as the one we talked a little bit about earlier, where there are coastline disputes. When the bill was introduced, I referred to coastline disputes in relation to quota allocation. Quota is allocated on coastline, so if an iwi can determine clearly that its coastline fits a certain boundary, from point A to point B, but another iwi says that that interlopes into its area, and there is an area of dispute as to where one iwi’s coastline ends and another iwi’s begins, then originally the former iwi could not pick up any of its allocation. Even if it had 99 kilometres of a 100 kilometre coastline boundary that was acknowledged by everyone as being its coastline, and 1 kilometre that was under dispute, the whole allocation relating to the entire 100 kilometres would be locked up in the dispute.

We made changes to the bill in the Fisheries and Other Sea-related Legislation Committee, which have been reported back to the House and voted on this evening. Now we have a situation where the allocation of 99 kilometres, if they are not in dispute, can go ahead, and Māori can go fishing while the dispute over the other 1 kilometre is resolved. That is good.

Pita Paraone proposed amendments to both Parts 1 and 5, whereby if particular Māori groups—he used Ngāi Tahu as an example—had had coastline boundaries, and other issues that might come under dispute, already examined by the courts, and if a judgment had been made in their favour and a Crown treaty settlement had resulted from those court decisions, then those issues should be beyond question. Those are the amendments Pita Paraone brought to the Committee, and the National Party voted in favour of them tonight. Now, of course, more iwi will use the mediation clauses in Part 7, because this Government refused to support Pita Paraone’s amendments. That is shameful. All we will see now is Māori and iwi right across this country dipping into Part 7. Part 7 comprises just a few short pages, but, unfortunately, because they deal with disputes in the courts, with mediation, and with all the problems that may result from the preceding legislation, we will see those clauses used most within Māoridom over the next few years—because there will be mediation and there will be disputes. A lot of those disputes could have been fixed here tonight, not least by the clauses proposed by Pita Paraone had the Government supported them.

I commend this issue to the Committee.

Dr WAYNE MAPP (National—North Shore): We are now dealing with Part 7, “Amendments to Te Ture Whenua Maori Act 1993”. This part is essentially all about bringing into play the Māori Land Court, and the point has already been well made that this court is already burdened down with conflict and beset with problems. Even the Government has some serious questions about the personnel of the court. So here it is, loading it up with even more tasks to resolve. At one stage this court had quite a narrow focus. It dealt solely with issues amongst landowners. Dover Samuels, who is a man well noted for not taking any calls in the House, would know all about the role of the Māori Land Court in that regard. But over time, we have seen creeping jurisdiction.

This legislation provides for the court to deal with all sorts of mandating disputes—major boundary disputes; which iwi owns what. It is no longer just an issue of individuals owning particular parts of land; rather, it is an issue of deciding tribal boundaries, and, going even further, deciding which iwi can back out of the legislation. That is contained in the clauses inserted after clause 14 by the Fisheries and Other Sea-related Legislation Committee.

It will be the court, I predict, that will actually have to work out whether Ngāti Hine and Rongomaiwahine are able to back out of their existing iwi and become iwi themselves. Members should think about that. The people themselves say they are an iwi. On the face of it, that seems a reasonable proposition. Who ultimately gets to decide? It is not the people themselves but a court. So, potentially—and this must seem truly absurd if one analyses it—a court will decide whether a people is a people. We are now passing law in this country where it is left to courts to decide the identity of a people. It is the sort of precedent we are seeing in other legislation. I know I am not supposed to talk about other legislation but I will mention, with brevity, the Foreshore and Seabed Bill. The problem is the same there, as well. I suggest that all of this is frankly asking courts to do more than they are equipped to do. If Parliament really believes that Ngāti Hine and Rongomaiwahine are iwi, then it should say so. We are the representatives of the people. Even Mr Samuels, the man who never speaks in the House, represents some people. One would think that his people would bring their kaupapa to the House, and say: “Mr Samuels, speak on our behalf.” He should rise so that we can hear his voice speaking on behalf of his people.

Hon Ken Shirley: Leave it to the Māori Party.

Dr WAYNE MAPP: He is going to leave it to the Māori Party, I understand. It will be the voice of the people, it seems. But I come back to the serious point whereby we are asking courts to make extraordinary determinations—not just about disputes between owners, which is the sort of thing courts are set up to do, but actually about the identity of a people. I ask the Government whether it has thought that one through. I ask the Labour members on the select committee, who took a pioneering role in relation to advocating the case of Ngāti Hine and Rongomaiwahine, whether they thought it through. Did they really intend that a court should have the ultimate determination as to the identity of a people? That is not my understanding of rangatiratanga. Surely the very essence of that term means that people decide their own identity. Instead, we have the whole idea debased and devalued by allowing an unelected—I was going to say unaccountable, but I guess the appeal would go ultimately to the Court of Appeal and the Supreme Court.

PANSY WONG (National): My very hard-working and learned colleague Dr Wayne Mapp has just raised the issue of the Māori Land Court being called upon to decide the identity of a people. I will follow on with this line because it is a serious issue.

Every 5 years in New Zealand we have an official census. But even in that very official process, a person’s choice of ethnicity is left entirely to the individual. So if people feel an affinity to Māori, Pacific Islanders, or Asians, then they can identify themselves by ticking one of those boxes. Some will put “New Zealander”, because they resent the fact that there is no box giving that definition. It has always been accepted in New Zealand that people can decide their ethnicity themselves. The Labour Government—a minority Government, I emphasise—has consistently found it difficult to be specific. [Interruption] If the Hon. Dover Samuels wants to make a statement or answer some of these questions, then I invite him to take the next call. I am sure the Māori community would love to hear one of their representatives speaking on their behalf and answering some of my questions.

I come back to my point. The minority Labour Government has made an art form of kicking difficult issues off to a court or a select committee for an inquiry rather than being fair. After the Government has kicked these contentious, difficult issues off to the Māori Land Court, there are not many parameters guiding the court on how it should come to a decision. Then, if the court makes a decision and suddenly public opinion is against it, it will be accused once again by the minority Labour Government of judicial activism. The Government will then blame the court when it makes decisions that may prove to be unpopular with the public. If the Government kicks this difficult problem to the Māori Land Court to decide who would constitute a separate iwi, then the Minister, or some Māori member of the Labour Party, should take calls and explain what the parameters are and what the guidelines are. When would the court know that it is actually carrying out the spirit of this legislation? The Minister should take a call.

I posed another question in relation to Part 6. I asked the Minister whether he could give the public and the Māori community an assurance that the Māori Land Court, which has suddenly been assigned so much additional responsibility, will have enough funding. Will that court be properly funded to carry out the additional responsibility that is conferred upon it by this legislation? The Minister should take our questions seriously. Everybody knows that this issue has taken 14 years to come to this Parliament, and we should not leave too many loose ends. I think the Minister owes it to the public to answer this very serious question that we pose to him.

Hon KEN SHIRLEY (ACT): I was hoping that the Minister in the chair, the Hon David Benson-Pope, would take that call. Both the two previous speakers have asked him to take the call. The issue that has been raised is important, and successive speakers in this important debate have called for an explanation.

The ACT party’s overall concern about this legislation is the bureaucratic bad governance that it is establishing. But here we have another consequence, which I would have hoped was an unintended consequence, and it is a very serious one: the Māori Land Court is to be called upon to make these determinations, when, arguably, it is not equipped to do so. Inevitably, the court will be brought into disrepute, or it will certainly be placed at risk of being brought into disrepute, for making such decisions. We are hearing evidence on parallel legislation—the Foreshore and Seabed Bill—where submitter after submitter, even as recently as yesterday, said that there is nothing more insulting than to question or to challenge one’s whakapapa, yet here we are saying that we will have a judicial body charged with that responsibility. I sense all manner of problems with that, as do other speakers before me. It behoves the Minister in the chair to stand to defend it.

This is the Committee stage of the bill. We have Ministers in the chair so that they participate and answer questions, and, hopefully, convince the Committee of the logic of why the Government is passing these measures through in legislation. Instead, we have a Minister who sits like a dunce in the corner with his hat on and does not answer our questions—and he should. I ask him to take a call to answer that question.

We know that the system we have under the quinquennial census allows people to make and nominate what ethnicity they might be—and it is a curious thing; I think that few other countries have such a system. For my part, I always put myself down as being a Pacific Islander. Why do I do that? It is because I am a New Zealander, and, as New Zealand is a Pacific Island, I am therefore a Pacific Islander—end of argument. Others feel the same. People tick all sorts of boxes in the census papers. A lot of people were quite surprised that the last census showed we had a huge upsurge of Kalahari Bushmen in New Zealand. No one really knew where those Kalahari Bushmen came from. It turned out that the McGillicuddy Serious Party decided, en masse, to register in the census as Kalahari Bushmen. So the New Zealand census shows we have a whole range of Kalahari Bushmen—

The CHAIRPERSON (H V Ross Robertson): Order!

Hon KEN SHIRLEY: You may think that this is stretching away from the part, Mr Chairman, but in fact it is not; it actually goes to the heart of the responsibility we are giving to the Māori Land Court, and so much flows from that. A lot of commercial aspects are associated with it. My colleague Richard Prebble, who took a few calls in an earlier part, highlighted the fact—and we have it here in the ACT quarters—that the new income tax provisions mean that all the authorised Māori bodies in the bill will enjoy a tax rate of 19.5 percent tax. Where is the commercial neutrality in that? I think it is great. I think everybody should pay tax at 19.5 percent, and good luck to Māori if they can. But it is grossly unfair when one segment in society, because of some racial basis, enjoys a taxation advantage.

What is the country coming to? Let us be quite clear, I am not against Māori enjoying a tax rate of 19.5 percent; I am just saying that everybody should enjoy it on that basis. We want these commercial enterprises to be successful, and I believe they will be. But what is the message we are sending? Are we saying that Māori cannot run a proper business and need to have a tax concession relative to everyone else’s? How could one be more patronising than that? That is deeply patronising and insulting. I ask the Minister what the justification is for that. He has not answered that question.

Hon BILL ENGLISH (National—Clutha-Southland): I want to ask the Minister just what the intent of Part 7 is. I am somewhat mystified by where this legislation is heading under this part. It is certainly important that the debate signals that this legislation is bound to cause major dispute. The way the bill has been written means that it will be only a matter of months after its passage that disputes will arise in respect of all sorts of aspects of it. The reason is the odd structure that has been put around this fisheries settlement.

I would like the Minister in the chair, the Hon David Benson-Pope, to explain why the Māori Land Court is now to be involved in disputes around this matter, because if we stand back a bit from the fact that this bill is being put together as a political deal rather than as a legislative ideal, we will see that the organisations constituted under this legislation have the corporate powers of a person—the same as anyone else. We have a well-established contract law that has dealt with commercial and ownership disputes for many, many years, and I would like the Minister to tell us why the ownership of these particular assets merits a special jurisdiction when it comes to disputes. I would be keen to hear an answer from him about that.

The other thing I would like the Minister to explain is why in this part the Māori Land Court now has a completely new jurisdiction over the operation of a mandated iwi. The issue of how iwi are mandated by this legislation is a major issue in itself, but given that Parliament has now decided to legislate for iwi—to recognise them in statute in a way that has not been done before—why is it that the Māori Land Court has now been given extensive powers? I refer the Committee to the orders and interim orders that the Māori Land Court can make under section 26L inserted by clause 169. It can require new elections or the appointment of office holders of a mandated iwi organisation. That seems to be an extraordinary power to give to a court.

This Parliament has every opportunity to legislate, in a general way, for civic organisations, and it often does. By civic organisations I mean corporate bodies of different sorts, such as incorporated societies. In this case it has been decided to legislate for iwi. There is a whole set of processes of public law to deal with problems that arise in those organisations, but here we are extending the jurisdiction of the Māori Land Court in a way that I think is bound to cause trouble. Iwi have been a fluid type of organisation. Their membership tends to change. The views held by the people of the iwi about the iwi are being regarded as much more important than anyone else’s. But here we are putting them under the jurisdiction of the Māori Land Court, which can require new elections. It can require Te Ohu Kai Moana Trustee Limited to suspend recognition of a mandated iwi organisation until specified changes are made to its constitutional documents. Well, that seems to be going much too far.

This legislation has in it the kaupapa that is required to become a mandated iwi. I presume an iwi cannot be mandated until it meets the kaupapa laid down in the legislation. Why then does one give the Māori Land Court the capacity to change that constitution? The constitution is legislated here. It seems to me to be fundamentally contradictory that Parliament legislates the constitution of these iwi—I personally think that in the long run that will be a mistake; nevertheless, that is what Parliament is choosing to do—and then tells the court that it can change it. I would like the Minister to explain that, because, if the Māori Land Court can change it, what does it mean when we vote for these kaupapa later in the bill?

SIMON POWER (Senior Whip—National): I raise a point of order, Mr Chairperson. I seek your advice on a ruling. A number of members on this side of the Chamber have been raising serious questions about different aspects in various parts of the bill, not least those raised by my colleague the Hon Bill English. Now it has come to my attention that we do not have any officials present to assist the Minister in this matter. At present the Minister is refusing to answer the questions that are being put to him, as is his right. But I seek your guidance as to why officials are not present to assist the Minister in answering those questions. I ask whether this is normal practice, whether it is at the sole discretion of the Minister that the officials are excluded from the debating Chamber, and whether the Opposition can ask you to rule to have the officials present in order that the questions raised by my colleagues can be answered.

The CHAIRPERSON (Hon Clem Simich): Firstly, there is no obligation on the Minister to take a call or to answer any questions. That is entirely over to the Minister. Officials are in the back room, and, if the Minister wishes them to be present, they can be summoned at the drop of a hat. Other than that the matter is noted, but I cannot take it any further.

SANDRA GOUDIE (National—Coromandel): I seek leave to table a document entitled Hui-a-Tau, which is a Treaty of Waitangi Fisheries Commission document that outlines a number of matters, including the matters recently referred to in the discussions on the bill with regard to Inland Revenue Department status of these trust entities.

The CHAIRPERSON (Hon Clem Simich): Leave has been sought for that course to be followed. Is there any objection? There is.

Dr ASHRAF CHOUDHARY (Labour): I move, That the question be now put.

Hon DAVID CARTER (National): I want the Minister to answer the questions that were asked by the Hon Bill English. The Hon Bill English pointed out that in an earlier part of the legislation we have ratified the constitution of iwi, and now the proposal in Part 7 is that the Māori Land Court can actually change those constitutions. There may be a very logical explanation for that, and we have just had, via a point of order, evidence that the officials are available to help the Minister answer the questions. But the Minister has decided that the officials should stay out of the Chamber, and the Minister has also decided that he has no intention at all of answering the questions that have been raised.

I have listened to the whole of this debate, either from in the Chamber, or from my office, and considerable numbers of questions have been raised throughout the Committee stage. I do not think I have ever seen before, in my long time in this House, the arrogance that has been shown by this new Minister.

Pansy Wong: He does not care.

Hon DAVID CARTER: He clearly does not know the answers to the questions, otherwise he would stand up and address the answers, or else, as my colleague Pansy Wong says, he simply does not care. Well, I have to say that the Opposition takes the Committee stage very, very seriously. It is the opportunity for us to examine the legislation in detail, to ask the Minister to answer the questions, and, certainly, to ascertain whether the Minister understands his own legislation. Clearly the Minister is either treating this Committee with absolute contempt, or he simply does not understand, in which case he is too embarrassed to bring in his officials and get their assistance.

The questions asked by the Hon Bill English were relatively simply. We have passed earlier stages of this legislation that establish the constitution of the iwi, so why are we now giving the Māori Land Court, as a means of resolving disputes, the ability to change those constitutions? It is a simple question that even the Hon David Benson-Pope should be able to understand.

Phil Heatley: No, no, he would not be able to.

Hon DAVID CARTER: He should be able to understand the question. I cannot put it any more simply than that. The question then becomes: does he have the ability to answer it? We suspect, by the way he sits silently looking at the comics, that he does not have the ability to answer it. But, as we have just found out by the brilliant point of order raised by my colleague Simon Power, the officials are available, sitting in a back room. I do not recall a time before—

Phil Heatley: Scared witless!

Hon DAVID CARTER: I am not sure they are scared witless. How do we know? They are hiding in a locked room, and are not allowed to come in and assist the Minister. I do not think there has been a major bill such as this, 250-odd pages of legislation, where we have ever seen such an arrogant cavalier attitude from the Government. He leaves the officials outside, and he sits throughout the Committee stage with no intention of answering the questions. It begs the question, frankly: why do we bother? Why do we bother battling through the whole afternoon and evening raising serious questions? Darren Hughes simply laughs about them, because he cannot understand them and he cannot answer them. The Minister sits there glumly viewing the comic pages, and the officials are excluded from the Chamber and are not able to offer any attention. I find the arrogance of this Government unbelievable.

I do ask again in my closing seconds that the Minister simply take the opportunity to answer the odd question. I am sure we will give him an opportunity to call in the officials, and have a bit of a discussion with them so that he can understand the questions and understand the answers. Then the Minister can simply stand, earn his LTD and high salary, and answer the odd question on the Māori Fisheries Bill

DARREN HUGHES (Junior Whip—Labour): I move, That the question be now put.

A party vote was called for on the question, That the question be now put.

Ayes 62

New Zealand Labour 51; United Future 8; Progressive 2; Māori Party 1.

Noes 56

New Zealand National 27; New Zealand First 12; Green Party 9; ACT New Zealand 8.

Motion agreed to.

The question was put that the amendments set out on Supplementary Order Paper 255 in the name of the Hon David Benson-Pope to clause 169 be agreed to.

Amendments agreed to.

A party vote was called for on the question, That Part 7 as amended be agreed to.

Ayes 101

New Zealand Labour 51; New Zealand National 27; New Zealand First 12; United Future 8; Progressive 2; Māori Party 1.

Noes 17

Green Party 9; ACT New Zealand 8.

Part 7 as amended agreed to.

Schedule 1 Quota Shares

A party vote was called for on the question, That schedule 1 be agreed to.

Ayes 110

New Zealand Labour 51; New Zealand National 27; New Zealand First 12; Green Party 9; United Future 8; Progressive 2; Māori Party 1.

Noes 8

ACT New Zealand 8.

Schedule 1 agreed to.

Schedule 2 Harbours and harbour quota

The question was put that the amendments set out on Supplementary Order Paper 255 in the name of the Hon David Benson-Pope to schedule 2 be agreed to.

Amendments agreed to, and schedule 2 as amended agreed to.

Schedule 3 Iwi (listed by groups of iwi) and notional iwi populations

The question was put that the amendments set out on Supplementary Order Paper 255 in the name of the Hon David Benson-Pope to schedule 3 be agreed to.

A party vote was called for on the question, That the amendments be agreed to.

Ayes 109

New Zealand Labour 51; New Zealand National 27; New Zealand First 12; Green Party 9; United Future 8; Progressive 2.

Noes 8

ACT New Zealand 8.

Abstentions 1

Māori Party 1.

Amendments agreed to, and schedule 3 as amended agreed to.

A party vote was called for on the question, That schedule 3A be agreed to.

Ayes 100

17

Green Party 9; ACT New Zealand 8

Abstentions 1

Māori Party 1.

Schedule 3A agreed to.

Schedule 3A Organisations that are recognised iwi organisations (as at the commencement of this Act)

New Zealand Labour 51; New Zealand National 27; New Zealand First 12; United Future 8; Progressive 2.

Noes

Schedule 4 Representative Maori organisations

A party vote was called for on the question, That schedule 4 be agreed to.

Ayes 101

; Māori Party 1.

Noes 17

Green Party 9; ACT New Zealand 8.

Schedule 4 agreed to.

New Zealand Labour 51; New Zealand National 27; New Zealand First 12; United Future 8; Progressive 2

Schedule 5 Methodology for determination of coastline entitlements

The question was put that the following amendment in the name of Pita Paraone to insert new clause 7A be agreed to:

to insert, after clause 7, the following new clause:

7A Coastline claims for takiwa of defined takiwa iwi

(1) A coastal claim submitted under clause 3 by the mandated iwi organisation of a defined takiwa iwi must not identify a specified point that is outside the area identified as the takiwa of the defined takiwa iwi in the relevant takiwa defining deed of settlement or takiwa defining enactment.

(2) The following provisions do not apply to a coastal claim to which subclause (1) applies:

(a) clause 3(1A)(d):

(b) clauses 3A and 3B:

(c) clause 4(1) to (3) and (5):

(d) clauses 5 to 7.

(3) Clause 8 applies to a coastal claim to which subclause (1) applies as if clause 8(1)(c) were omitted and the following substituted:

“(c) attempt to verify that each specified point is within the area defined as the takiwa of the defined takiwa iwi defining deed of settlement or takiwa defining enactment.”

(4) If Te Ohu Kai Moana Trustee Limited considers that a specified point identified in a coastal claim that is submitted to it by a mandated iwi organisation is within an area identified in a takiwa defining deed of settlement or a takiwa defining enactment as the takiwa of another iwi—

(a) it must refer that matter back to the claimant; and

(b) clause 8(3) applies as if the matter was referred back to the claimant under clause 8(2).

A party vote was called for on the question, That the amendment be agreed to.

Ayes 47

New Zealand National 27; New Zealand First 12; ACT New Zealand 8.

Noes 70

New Zealand Labour 51; Green Party 9; United Future 8; Progressive 2.

Abstentions 1

Māori Party 1.

Amendment not agreed to.

The question was put that the amendments set out on Supplementary Order Paper 255 in the name of the Hon David Benson-Pope to schedule 5 be agreed to.

Amendments agreed to, and schedule 5 as amended agreed to.

Schedule 6 Kaupapa applying to constitutional documents of mandated iwi organisations

The question was put that the amendments set out on Supplementary Order Paper 255 in the name of the Hon David Benson-Pope to schedule 6 be agreed to.

Amendments agreed to.

A party vote was called for on the question, That schedule 6 as amended be agreed to.

Ayes 101

New Zealand Labour 51; New Zealand National 27; New Zealand First 12; United Future 8; Progressive 2; Māori Party 1.

Noes 17

Green Party 9; ACT New Zealand 8.

Schedule 6 as amended agreed to.

Schedule 7 Te Kawai Taumata

The question was put that the amendments set out on Supplementary Order Paper 255 in the name of the Hon David Benson-Pope to schedule 7 be agreed to.

Amendments agreed to.

A party vote was called for on the question, That schedule 7 as amended be agreed to.

Ayes 101

New Zealand Labour 51; New Zealand National 27; New Zealand First 12; United Future 8; Progressive 2; Māori Party 1.

Noes 17

Green Party 9; ACT New Zealand 8.

Schedule 7 as amended agreed to.

Schedule 8 Consequential amendments

The question was put that the amendments set out on Supplementary Order Paper 255 in the name of the Hon David Benson-Pope to schedule 8 be agreed to.

Amendments agreed to.

A party vote was called for on the question, That schedule 8 as amended be agreed to.

Ayes 62

New Zealand Labour 51; United Future 8; Progressive 2; Māori Party 1.

Noes 56

New Zealand National 27; New Zealand First 12; Green Party 9; ACT New Zealand 8.

Schedule 8 as amended agreed to.

Clauses 1 and 2

The CHAIRPERSON (Hon Clem Simich): The debate is now on clauses 1 and 2. The vote will be taken separately. The debate is fairly wide ranging, and members should address the two clauses.

PHIL HEATLEY (National—Whangarei): We come now to the wide-ranging title debate, and I would like to go through the six major issues that are of concern to the National Party and that we have raised through the course of the Committee stage. As we said in the second reading debate, we support the principle of the bill—that Māori, after 12 years, are able to get on and go fishing. But we have identified flaws in the bill, as we said we would during the second reading debate, some of which are quite significant. We would have liked to see those flaws addressed during the Committee stage. We certainly saw some of the flaws addressed during the select committee stage, and I was delighted by that and by the opportunity to have input into the bill. But there should have been more changes during the Committee stage.

One of the issues, of course, is the recognising of up and running iwi organisations. When the Labour Government first tabled the Māori Fisheries Bill, it said, in its stupidity, that some iwi, like Ngāi Tahu and Tainui, who have already been recognised in other Crown settlements and who already have structures in place to deal with settlements, have to jump through all those recognition hoops again. That is what the Government wanted. It wanted Ngāi Tahu and Tainui to go through all those recognition hoops again, with all that bureaucracy, all that form filling and box ticking, and on it goes. But we made changes in the select committee to clause 14 to make sure that such iwi organisations will get automatic recognition if they have already been formally structured and are accountable to their members, if they have already established an asset-holding company, and if they have already been accepted by the Crown as having a mandate for Treaty of Waitangi settlements. Clearly, Ngāi Tahu fit into that category, and Tainui undoubtedly does, as well. Why should they have to go through the hoops again? We are glad to have made those changes. I can only consider, in hindsight, the foolishness of the Labour Party in even thinking those organisations would have to go through that all over again.

One of the other issues we looked at was that of the coastline agreements that were likely to hold up allocation. Why, in the original bill, the Minister, David Benson-Pope, had it so that if one small section of coastline had a dispute it meant that the allocation relating to the entire coastline would be held up, I have no idea. It was more sensible to us to make sure that Māori could get on and access their quota from the areas of coastline that were not under dispute, while issues around the other small area of coastline under dispute could be resolved. We made those changes because we knew, whether objection was warranted or vexatious, that some iwi would come forward and stop allocations dead in their tracks with a coastline argument. That would have been unfair and unreasonable. We would like to have seen Ngāi Tahu appeased in some way, because it has already resolved its coastline through both Crown settlements and endorsement through the courts. They know what their coastline is. It has been proven through a Crown settlement and through a court, and it should stand.

We also discussed the issue of the limitations of realising the value of fishery operations because capital items such as trucks and boats and buildings, quota, and shares could be sold only within iwi groups—iwi to iwi, or iwi to Te Ohu Kai Moana Trustee Ltd. There is no doubt that that will mean there is an effect on the value. The restriction on the sale of shares and quota definitely has a potential to affect their value. However, that is an accepted consequence within Māoridom. They understand that Māori, through the generations, must benefit from the settlement. It is a fundamental principle of the allocation model, and they are prepared to take the hit. Of course we question the commercial sensibilities of that decision. We questioned Māori time and time again at the select committee, but they said to us that they understand that but they want to keep their quota for their children and their children’s children. We support that, as well.

Dr WAYNE MAPP (National—North Shore): I thank the Chair for the invitation to treat this as a wide-ranging debate, because it really gives one the opportunity to analyse the basic principles of the bill—which parts we agree with and which parts we disagree with.

National has been supporting this bill through the Committee stage and previous stages, and we have good reasons for doing so. We recognise that the 1992 legislation, which established the Treaty of Waitangi Fisheries Commission, does have to be modernised. The only way that can be done is through this House. We also recognise that the commission’s solution was a difficult compromise that balanced a variety of interests, and ultimately it had to make a call. It would never be in a position to satisfy everyone.

Let us look at the formula the commission came up with. In essence it said that inshore fisheries were allocated on the basis of coastline and offshore fisheries were allocated on the basis of population. If the commission had left it at that and then allocated the quota for both in shore and off shore directly to the iwi, that would have been a fundamentally better solution than the one that has been arrived at in this bill. But there is one further step that the commission suggested. The problem with it is that it is all about protecting a particular commercial entity—Sealord’s. Rather than the iwi getting direct control of the offshore quota, which one would have thought would be the logical outcome, it is all folded into a whole series of entities. The bulk of the complexity of the bill actually rests around this, because all the entities would not be needed but for this fact, and ultimately it is all a device to own Sealord’s. Through a whole series of intermediaries, that is actually what it is all about. The only control and profit that the iwi get is through this very convoluted, many times removed profit. Actually, most iwi simply get a vote in an electoral college. That is their level of control—simply a vote in an electoral college. Who on earth could really believe that that is any kind of autonomy or sovereignty?

National is left with a difficult choice because the question becomes this: do we support that process, even though it is fundamentally unsatisfactory, because it is at least a step forward from the current situation, or do we say that, frankly, it is not good enough and vote against it? We will make that determination before the third reading. But it is a very serious question.

We put forward suggestions that would have made it fundamentally easier for us to support this bill. The essence of our suggestions was to enable those iwi that have commercial expertise to directly access their offshore quota. Most self-evidently, that would have been Ngāi Tahu, but there would have been other iwi in that regard. We put a lot of thought into those particular provisions. The Minister was notified of those, as was United Future, because, actually, United Future had the key. This is one of those situations where United Future members could have said yes or no.

Hon Ken Shirley: Did they lose the key?

Dr WAYNE MAPP: Well, yes, because, once again they acted like the lapdogs that they are and simply voted for the Government. I find that most disappointing.

My colleague Mr Heatley also put forward Supplementary Order Papers that would have simplified the convoluted structure and removed some of the layers. Again, these were simply rejected by the Government. It was very unsatisfactory.

Not once have we heard the Māori members stand up and defend these solutions. We virtually never heard the Minister stand up and defend his solutions. What is worse is that tonight he did not even have the officials in the room, which tells us everything. He had no intention whatsoever of taking a call, even though this is one of the most important bills that this House will deal with this year. It involves $1 billion worth of assets.

It is not often that Parliament deals with issues of that significance. We spend a lot of time on legislation that does not have that level of significance. One would think that when we do deal with important issues, the Government members would take calls. One would think that the Māori members especially would take calls. Instead, this side of the Chamber has seen the Government members essentially bankrupt and bereft of ideas. That is why, ultimately, their seats will go. Their silence speaks volumes, and they stand condemned by that. I will bring this point to a close. This is important legislation and we do have a real choice ahead of us.

SANDRA GOUDIE (National—Coromandel): Points have been raised in the Chamber, and the Minister has not responded to those questions. I reiterate the concerns expressed by my learned colleague, Dr Wayne Mapp, that we are incredibly disappointed that those serious matters raised by the Hon Bill English and others have not been addressed. One of those was in relation to the 19.5c tax rate for Māori authorities. It is unclear in the bill exactly what will be happening with regard to all those entities identified in the bill.

One newspaper clipping stated that changes to the bill meant “allowing quota to be sold to other mandated iwi organisations and ensuring that the new Aotearoa Fisheries Limited would have the low 19.5 tax rate of other Maori authorities.” So it would appear that Aotearoa Fisheries Ltd is identified in the bill as a Māori organisation and, as such, also has the 19.5c tax rate advantage of other Māori authorities. That is alluded to in the document that I tried to table earlier, but my request was denied by the current Government. It did not want me to table that document, which clearly identified that the entities that were named in the bill are subject only to the 19.5c tax rate for charitable organisations and other Māori authorities and organisations as referred to in the Taxation (Maori Organisations, Taxpayer Compliance and Miscellaneous Provisions) Act. Those are identified in that document, and those parameters around Māori organisations are also identified. Although Te Ohu Kai Moana, Te Wai Māori Trust, Te Pūtea Whakatupu Trust, and their respective corporate trustees, and Aotearoa Fisheries Ltd, are all exempt from the general taxation provisions that the rest of the charitable organisations are constrained by, those particular trusts identified in this bill all have that advantage of having the 19.5c tax rate.

That is certainly an unfair advantage accorded to just one sector of the community, and that is totally unacceptable in our view. That has been clarified in these documents, and the Minister was asked to take a call to further clarify the position of the tax rates for all the entities, but he failed to do that. He did not respond and nor did he respond to the other calls to explain some of the other provisions within this bill. Those calls were about some of the other provisions regarding dispute resolution.

There are 12 iwi of Hauraki identified in Schedule 3 under the Tainui iwi. They are Ngāti Hako, Ngāti Hei, Ngāti Maru, Ngāti Paoa, Patukirikiri, and a range of others. I put it to members that Ngāti Maru may seek to clarify their ownership with regard to coastline and settlement quota within this bill. I am sure they will be seeking some clarification and will wish to have their own matters addressed through the dispute resolution process. Māori Land Court judges need to have knowledge of tikanga Māori for this dispute resolution process, so will they understand the tikanga for Ngāti Maru?

I put it to members that they will not, so how can they judge what the position will be for Ngāti Maru in accordance with Ngāti Maru tikanga? As the Minister is no doubt aware, the tikanga for one individual iwi group or hapū is quite different from the tikanga for another, and they each have their own sense of what tikanga means for them. So how will that matter be able to be judged within the Māori Land Court, without the relevant tikanga Māori being known for that individual hapū—for example, Ngāti Maru?

PITA PARAONE (NZ First): I want to make some comment with regard to the title of this bill, now known as the Maori Fisheries Bill. I am not quite sure whether that is an appropriate title, because, given the perceived support by the Government to things Māori, I would have thought that a more appropriate title for this bill would be a Māori one. I suggest that the bill would be more appropriately named “Te Ture Hao Ika Māori”, which essentially is the Māori Fisheries Bill. Now, perhaps it is beyond the realms of possibility that this suggestion might be a consideration that the Government might feel like providing in a late Supplementary Order Paper.

Should it not consider that, I can suggest an alternative title for this bill. It is the “Privy Council Memorial Bill”, because this bill came out of a decision from the Privy Council and, as we all know, the Government is determined to sever our ties with the Privy Council. It did so without consultation with Māori, and one can see why, as it seems to me that the Privy Council has been quite sympathetic to the Māori argument.

However, another alternative could be the “Fish and Loaves Bill”, because some people believe—and it certainly is the case at the moment—that they have not received anything out of this settlement. However, this is unlike the original feast of fish and loaves, because those who partook in that feast had faith. Now, I am not quite sure, even at this stage, given the differences of opinion that exist outside the Māori world—and certainly within the Māori world—that this might be an appropriate name for the bill.

I believe that a number of issues come out of this bill—not least of all, the recognition of iwi groups; and in fact there is a recommendation from the Fisheries and Other Sea-related Legislation Committee concerning two groups in particular, Ngāti Hine—and I declare I am a member of Ngāti Hine—and Rongomaiwahine. The bill does not give them iwi status. That has to be recognised by those people, particularly within Māoridom, who have been critical of that. But what it does do is allow those groups to be considered alongside iwi to receive their separate allocation, if they so wish. That in no way deems them to be iwi, because only Māori can do that.

The second point is the recognition of existing treaty settlements. I must express my serious concern about this particular issue, which was brought to notice by Ngāi Tahu, who signed their deed of settlement with the Crown in good faith, where that settlement recognised their tribal boundaries. Yet, that same recognition is not given due regard by this bill. To me, that signals that future deeds of settlement will have only a limited use, and that this bill will not give any recognition of that. Of course, that adds to the burden that the Māori Land Court will have to bear.

The other issue is that I believe that too much authority or power has been given to the offspring of the present commission; that is, Te Ohu Ki Moana Trustee Ltd. We heard throughout the discussion this afternoon and early parts of this evening the concern of members about this issue.

SANDRA GOUDIE (National—Coromandel): I seek leave to table an undated document from the Finance and Expenditure Committee that is a commentary on the Taxation (Annual Rates, Maori Organisations, Taxpayer Compliance and Miscellaneous Provisions) Bill.

The CHAIRPERSON (Hon Clem Simich): Leave has been sought for that course to be taken. Is there any objection? There is.

Hon KEN SHIRLEY (ACT): We are drawing to the close of a very unsatisfactory and a very unfortunate ending to a very long saga. Looking around, I think I am the only member in the Chamber tonight who was there at the beginning, following the Muriwhenua court case back in the 1980s. Indeed, Dr Cullen is waving in front of me here, and I seem to recall that he was also there. I think he was the junior whip at the time.

Hon Dr Michael Cullen: Senior whip.

Hon KEN SHIRLEY: Senior whip—I do him an injustice. The situation was clear. It was all about an article 2 property right, with the chiefs and tribes being guaranteed, inter alia, the full, exclusive, and undisturbed possession of their fisheries. It was never an issue with the administrative allocations that we traditionally had in the permitting system, and there was never anything there to debate. But after the 1986 fisheries legislation introduced a property right, which was a sensible and appropriate thing to do, with a quota system and individual transferable quota property right, then Māori legitimately had a case. They took it to the courts, and that case was upheld. So the Crown was certainly bound to settle it. The first Māori Fisheries Bill was introduced in 1989, in the name of one Hon Richard Prebble. A special select committee was appointed, and one Ken Shirley was the chairman of that select committee that met over 18 months and came up with the first settlement. What the bill started off with was 50 percent of the quota, but that was confined to the inshore. It was 50 percent of inshore species. The rationale for that was that Māori drew a long bow in claiming that they caught orange roughy and the like at depths of 2,500 feet and many miles offshore. It stretched the imagination and beggared belief to think that they rowed out or paddled out in a canoe and, with flax ropes, caught orange roughy at a depth of 2,500 to 3,000 feet. However, they convinced the Government that they did indeed do that. I remember chairing that first select committee when Māori made such a claim, and my question to them was: “What was the Māori name for orange roughy?”. The senior kaumātua did not have an answer. He said: “I’ll come back tomorrow with it.” Sure enough, he came back the next day with a Māori name for orange roughy. But, be that as it may, the 10 percent settlement over all the fishery acknowledged that there was an artificial boundary between the inshore and the deep water, and the inshore fishery in New Zealand had been decimated through overfishing and overcapitalisation. So I believe that it was fair to move to that 10 percent, and the Māori of the day settled for that. I was at meetings with Sir Tīpene O’Regan, Matiu Rata, Graham Latimer, and all those leaders, and 10 percent was seen as being reasonable over the full quota.

Unfortunately—or fortunately, depending on how one looks at it—someone called it “the interim solution”, which was an invitation to come back for more. Surprise, surprise, that is exactly what happened. That is what led to the Sealord’s deal in 1992, when the 20 percent quota allocation was established. As the Minister of Fisheries, I signed over the allocation to the fisheries commission. Four 2.5 percent quotas going through to 1992 were signed over in 1990, and, indeed, most thought that that would be the end of it. The commission was established so the property right could be transferred to Māori, because there was no way the Crown could have gotten that right. Whatever the Crown did, it would have ended up as the meat and the mustard in the sandwich, so the Māori Fisheries Commission was established for Māori to make that determination. I thought it would probably take a year, or possibly 18 months—I was wrong. It took 12 years of bitter wrangling and litigation to the point, even then, whereby a consensus could not be reached. That is why this issue is now back in Parliament. I would like to be able to say that this bill is the end of it, and that we have a harmonious settlement that will work, that can meet the very laudable objective of meeting the article 2 treaty property right settlement, and that can have Māori fully engaging in the business of fishing. But when I and the ACT party look at this bill, we do not believe that it will do that. I believe that it has inherent in it the seeds of ongoing wrangling.

SANDRA GOUDIE (National—Coromandel): I seek leave to table a document from the Sunday Star-Times, dated 23 November 2003, titled “Fisheries’ can of worms”.

The CHAIRPERSON (Hon Clem Simich): Leave has been sought to do that. Is there any objection? There is.

Hon DAVID CUNLIFFE (Minister of State): I move, That the question be now put.

PANSY WONG (National): I believe that instead of having the title “Maori Fisheries Bill”, this bill should be known as the “Maori Fisheries Interim Bill”. The incoming Minister of Fisheries, Phil Heatley, has made a commitment—and he will carry it out—to bring to the House next year the six major amendments necessary to give credibility to this interim bill and to pay due respect to the Māori community. Why do I say that? The sentiment behind this bill and the bureaucracy in it are quite an insult to the Māori community. No other group would be subject to such a bureaucratic process when selecting or appointing its board members, and no other people in New Zealand would be told that their identity and affiliation would be decided by the court. No corporation in New Zealand would be restricted by the Government from disposing of its assets in a commercial manner that would be beneficial to its members. That is a very serious issue that I want to raise.

As far as I can remember, the Minister, David Benson-Pope, has taken only one call today. That was his response to the questions raised by the Opposition parties as to why the Māori authorities are to be subject to such a bureaucratic appointments process. He told the Committee that that is what the Māori community wants. In terms of the way that the Minister delivered that answer, he was basically saying that had it been left to him to exercise leadership he would not have done that, but it has been done because the Māori community wanted it. I challenge that because the Māori community, like any other community in New Zealand, simply does not speak with one voice. Māori are entitled to have their individual persona and to make their individual decisions. The fact is that they are compromising themselves, because they do not believe they will get the option of championing the best way forward. Therefore, they are making a compromise.

The minority Labour Government claims all the time that it is exercising leadership and making the right decisions, but, once again when facing a difficult issue, it is taking the easy way out. It either refers difficult decisions to the courts and then accuses the courts of not carrying out the intention of the Parliament, but without having given the courts clear guidelines, or it tends to say that its decision is what the community wants. I would say those are selective statements that are intended to get the minority Labour Government out of making difficult decisions. A credible Government would exercise leadership by adopting the right criteria, which in this case would mean that if one establishes or allows a commercial enterprise to be established, then that enterprise should be subject to no more and no less control or requirement than what is best practice in the commercial sector. But the Māori organisations are not to be trusted to make the right decision. I have always said that when people talk about the business acumen of a Māori community or organisation, they tend not to refer to, for example, the Ngāi Tahu situation. What about Whale Watch Kaikōura and such enterprises?

DARREN HUGHES (Labour—Otaki): I move, That the question be now put.

Hon BILL ENGLISH (National—Clutha-Southland): In the earlier stages of the debate in this Committee, our spokesperson, Phil Heatley, outlined National’s general concerns about this legislation. After having listened to that debate in some detail and having followed the discussions that have gone on over the last 10 years or so, I think most of us are led to the conclusion that this bill is worse than almost anything except one thing, which is to have no settlement. Really, that is the only reason that I think Parliament ought to tolerate the pretty obvious weaknesses in this legislation. It is better to have this legislation than to leave the 10 or 12 years of discussion without a conclusion.

We have looked in detail at three areas that, I think, matter. The first has been referred to by my colleagues, and it is the commercial structures that are involved. They are not commercial structures. The only parallel I can think of is that they resemble in some way the Fonterra settlement that came through this Parliament. But this matter is much more complex, although many of the same issues are involved. The iwi involved here—in fact, everyone who is involved—need to understand that the easy bit of developing Māori fisheries is over. Running an export fishing business when the exchange rate of the New Zealand dollar is at US65c is hard work. If anyone believes that the fishing industry can deliver significant dividends to the beneficiaries of this settlement without the best of commercial and strategic management, then he or she is wrong, yet this legislation does not permit the best of commercial and strategic management. I would bet that a number of the beneficiaries of this legislation will find before too long that the aspects of it regarding collective ownership, Māori exclusivity, and limited trading are a hindrance to the decisions they want to make, rather than a help.

Another part of this bill that does concern me is the layers of vested interests that are built in here. In some respects the existing structure is certainly easier to understand, more transparent, and better able to manage the asset than what the bill provides for. We are now moving into a much more complex and indirect structure, and as one of my colleagues here in the Chamber has pointed out, the interesting thing about the layers of accountability is that Māori have chosen that for themselves. No one who benefits from this settlement will be able to say that some colonial doctor, a has-been, has dropped it on them. This has been—

Hon Ken Shirley: You wait and see.

Hon BILL ENGLISH: Maybe we should. In some ways Parliament is colonising iwi thinking through this legislation. Give them 20 years and then it will all be our fault, do members think?

The Māori people have chosen this structure for themselves, and I am concerned, as are many Māori, that it will result in high salaries, unaccountable management, politicised decision-making, and people whom one can never quite get one’s hands on, particularly if one wants to get one’s hands around their throats. With the growing commercial awareness and capacity in iwi, they will want to get their hands around the throats of the people who are running this asset, because it is high-risk commercial business now. There will be losses, and there will need to be accountability. So in a way Parliament is throwing its hands up and saying to Māori that they have chosen this structure, so they can live with it. I would not mind betting that in a lot less than 10 or 12 years’ time, Parliament will be playing around with this legislation again. It looks to me as though the future path of Māori fishing will parallel that of the restructuring of the meat and wool boards, where we had an amendment bill about every 2 years for 5 or 6 years, until finally we got to a conclusion that was sustainable.

The other issue I am concerned about is the way that Parliament is legislating and mandating iwi. That is not something we have done before. We have not set up a statutory basis for iwi registration, and therefore for beneficiary registration. The debates we have already had in the far north and in Hawke’s Bay tell us that that is difficult territory for Parliament to stray into.

Hon RICK BARKER (Minister for Courts): I move, That the question be now put.

A party vote was called for on the question, That the question be now put.

Ayes 71

New Zealand Labour 51; Green Party 9; United Future 8; Progressive 2; Māori Party 1.

Noes 47

New Zealand National 27; New Zealand First 12; ACT New Zealand 8.

Motion agreed to.

SIMON POWER (Senior Whip—National): I raise a point of order, Mr Chairperson. I seek clarification of exactly how the votes on clauses 1 and 2 will be taken. Will they be taken together or separately?

The CHAIRPERSON (Hon Clem Simich): I was just starting on that point. The question will be put separately on clause 1, and then on clause 2.

A party vote was called for on the question, That clause 1 be agreed to.

Ayes 101

New Zealand Labour 51; New Zealand National 27; New Zealand First 12; United Future 8; Progressive 2; Māori Party 1.

Noes 17

Green Party 9; ACT New Zealand 8.

Clause 1 agreed to.

Hon ROGER SOWRY (National): I raise a point of order, Mr Chairperson. My understanding is that we have now completed the voting for clause 1 and that you are about to call a separate vote, obviously, for clause 2. The time for the House to rise has passed. Therefore, it is not as though we are voting on a lot of amendments, where we vote right the way through until the vote on the part is completed. What is happening is that we are entering into a separate vote, and the correct procedure, as I understand it, is for the House to rise now and for that vote to be taken when the House next goes into Committee on this bill.

The CHAIRPERSON (Hon Clem Simich): I am of the view that this question was taken as one debate, and we should at least vote on clause 2.

Hon KEN SHIRLEY (ACT): I raise a point of order, Mr Chairperson. I distinctly heard you say that there are two distinct questions. That is really the point being raised by the other Opposition party, and I certainly concur with it.

The CHAIRPERSON (Hon Clem Simich): I understand that. It was one debate, but the votes on the two clauses are to be taken separately.

Hon ROGER SOWRY (National): I raise a point of order, Mr Chairperson. I am not trying to be difficult, but I would hate that ruling to stand. I ask that you think about that, because often in the Committee of the whole House, as you would know from your long experience, we end up debating all parts of a bill as one question. There could be amendments to parts, and all sorts of things, and we go through and vote at the end, but the voting is separate for each part.

If your indication becomes a ruling and is allowed to stand, it would mean that all the voting would effectively be done at the end, regardless of the time. That has never been the case. Yes, the part must be dealt with, and also the amendments to that part, but we have done that and we are now moving on to a separate vote. That is what I ask you to consider seriously, because this circumstance is not like one in which we are continuing with something we started on. This is a separate clause.

The CHAIRPERSON (Hon Clem Simich): I thank the member for that. Again, I say it is my view that the question was that clauses 1 and 2 stand part.

Hon Ken Shirley: Point of order, Mr Chairperson—

The CHAIRPERSON (Hon Clem Simich): The member may address the issue again, but I am giving my ruling now. The question was that clauses 1 and 2 stand part. There is no argument about that, and I said that the clauses would be voted on separately. So we are in the process of this vote, and that is my ruling. The member may, if he wishes, overturn it at another time.

Hon KEN SHIRLEY (ACT): I raise a point of order, Mr Chairperson. I think this is a very grave situation.

The CHAIRPERSON (Hon Clem Simich): Not really.

Hon KEN SHIRLEY: The Committee has flagged that if this decision were to stand, then that could have all sorts of ramifications. Indeed, it may be appropriate that we recall the Speaker.

The CHAIRPERSON (Hon Clem Simich): If that is the member’s wish, that is fine by me.

Hon KEN SHIRLEY: I think it is a decision of some gravity, Mr Chairperson. If you are to persist in this way, then we must ask to recall the Speaker to clarify the matter.

Hon ROGER SOWRY (National): Reluctant as I am to agree to the sense of recalling the Speaker at this hour, I think that is probably the only course, and I want to give the reason. Dealing with clauses 1 and 2 at the end of the debate is a new way of dealing with them. It used to be that the title and commencement were separate debates, and had separate votes right up front. We now deal with them at the end. The ruling that, because we deal with the votes at the end, they are effectively taken as a continuum of one vote and not two separate votes for the purpose of when the clock runs out, is quite a substantial ruling. If we are to go that way, it is a massive change and requires the attention of the Speaker.

Hon Dr MICHAEL CULLEN (Leader of the House): It is certainly not a massive change or a great matter. Why the Opposition wants to waste time at this point becomes a bit meaningless; it does not really make any difference to the proceedings of the House.

But the issue here is very simple. A closure motion once put applies to all the questions that are subsequent upon that closure motion. There are not two closure motions put on this debate at the end of the bill. We now have this new procedure where the preliminary clauses are taken finally, but each is put separately at the conclusion of that debate. The motion moved for closure is the motion on the closure of the debate, and that is then put. Subsequently all questions that flow from that closure are put as one question and continue past the stopping time, should that arrive.

I think the ruling you have given is absolutely clear and appropriate. I point out to Opposition members that if the Speaker is recalled, I think they will find it will be the Assistant Speaker, but I am quite sure that the able advice of the Clerk of the House will lead to confirmation of your absolutely correct decision, Mr Chairperson.

The CHAIRPERSON (Hon Clem Simich): I thank all members for their contribution, and I thank Dr Michael Cullen. He is absolutely correct. I had no doubt about it, at all. I do not think it is setting any precedent; it is just plain common sense. We follow what is laid out in the Standing Orders, and it is as I have outlined it. I wish to continue with clause 2, but if someone wants to recall the Speaker, that is no problem.

A party vote was called for on the question, That clause 2 be agreed to.

Ayes 101

New Zealand Labour 51; New Zealand National 27; New Zealand First 12; United Future 8; Progressive 2; Māori Party 1.

Noes 17

Green Party 9; ACT New Zealand 8.

Clause 2 agreed to.

Progress reported.

The House adjourned at 10.05 p.m.