Tuesday, 1 March 2005

Tuesday, 1 March 2005

Tuesday, 1 March 2005

Mr Speaker took the Chair at 2 p.m.

Prayers.

Visitors

Malaysia—House of Representatives Special Select Committee to Amend the Penal Code and Criminal Procedure Code

Mr SPEAKER: I have much pleasure in informing the House that members of the Special Select Committee to Amend the Penal Code and Criminal Procedure Code from the House of Representatives, Malaysia, are present in the gallery. I am sure that members would wish that the delegation be welcomed.

Australia—Members of Australian Political Exchange

Mr SPEAKER: I also have much pleasure in informing members that members of the Australian Political Exchange, led by Ms Catherine King MP, Federal Member for Ballarat, are present in the gallery, and I am sure that members would wish that they also be welcomed.

Questions for Oral Answer

Questions to Ministers

Te Wānanga o Aotearoa—Control of Growth

1. Dr DON BRASH (Leader of the Opposition) to the Prime Minister: Does she stand by her statement regarding Te Wānanga o Aotearoa that, “Maybe the growth has outgrown the capacity to have proper governance,”; if so, is she satisfied that the Government has taken adequate steps to control growth at the wānanga?

Rt Hon HELEN CLARK (Prime Minister): Yes, growth appears to have exceeded governance capacity. I am satisfied that the Government has taken a number of steps to deal with the problems.

Dr Don Brash: Can the Prime Minister confirm that in 2003 the Government announced new rules to cap growth in tertiary institutions but that Steve Maharey explicitly allowed the wānanga to breach this cap because of allegedly “exceptional circumstances”; if so, can she also confirm that had the cap been applied in 2004, then the wānanga would have received approximately $80 million less in Government funding?

Rt Hon HELEN CLARK: I am well aware that the managing growth policy was announced in 2003. I am well aware that there was an agreement with the wānanga and the Tertiary Education Commission to manage the growth caps at that time. I am also well aware that, as a result, the number of equivalent full-time students paid for at the wānanga fell from over 34,000 to under 30,000 in 2004.

Hon Brian Donnelly: What advice has been tendered to the Government by the Tertiary Advisory Monitoring Unit, the Government’s monitor of tertiary institutions’ financial management, about the growth of the wānanga and its capacity for proper governance; and when was such advice tendered?

Rt Hon HELEN CLARK: The member would need to put a question with that level of detail to the Minister. What I can say to him is that, looking back over the contact there has been with the wānanga over a number of years, there have been a number of audits. There have been requirements that clearly were not being met, which the Government has worked to put right. So we have taken a number of steps to deal with these issues.

Rodney Hide: Can the Prime Minister confirm that the National Government granted Crown tertiary status to Te Wānanga o Aotearoa in 1993, thereby setting the seed for its phenomenal growth by establishing the policy of funding the Māori university by the number of students enrolled, and has she had any indication from the National Party that that is no longer its policy?

Rt Hon HELEN CLARK: Yes, I am aware of those matters, and, no, I have not had an indication that it is no longer the National Party’s policy. I am also aware that uncapping the number of equivalent full-time students was particularly helpful to the wānanga. I am aware that in April 1999 the Waitangi Tribunal released its Wānanga Capital Establishment Report, and that the National Government, pursuant to the tribunal’s report, announced interim capital injections for the wānanga. I want to acknowledge that ACT has raised a number of issues that have caused us to make further inquiries—issues that were never raised by the National Party because Mr Wētere has been a longstanding, active, high profile member.

Gordon Copeland: Is it Government policy, especially when $239 million per annum is involved, that the payment of money to organisations like the wānanga is withheld until assurance concerning policies, procedures, accountability, and governance is satisfied; if so, who is responsible for signing off assurance in that respect?

Rt Hon HELEN CLARK: In respect of the suspensory loan, that did come up to Ministers, and Ministers were not satisfied that the conditions for paying that money had been met—and no money will be paid until conditions are met.

Gordon Copeland: I raise a point of order, Mr Speaker. That was a good response about the—

Mr SPEAKER: What is the point of order?

Gordon Copeland: I do not believe that the question I asked has been addressed. I did not really mention anything about a suspensory loan; I just asked about the $239 million. I mentioned that figure specifically. That was the subject of my question, and I do not believe that the Prime Minister addressed that part of it.

Rt Hon HELEN CLARK: I would like to elaborate, because in the course of looking at what has happened at the wānanga I have come to know of a number of practices that have been in place for about the last 16 years that I do not consider satisfactory. One of those is the practice of the New Zealand Qualifications Authority delegating the ability to approve sub-degree programmes to the so-called academic boards of tertiary educational institutions like wānanga and polytechnics. I think that has contributed to the growth of courses of low quality. I might say that it was a system the National Party was perfectly happy to preside over. [Interruption]

Mr SPEAKER: I remind people that interjections have to be in the third person. Please do not bring me into the debate.

Tariana Turia: Is there one law for all in this country; if so, why can universities call themselves wānanga and provide courses to Māori students, and fail many, but wānanga cannot call themselves universities and are being told not to provide courses to non-Māori students?

Rt Hon HELEN CLARK: People pass or fail at universities on their merits. My understanding of the broad definition of wānanga would be “house of learning”, and no doubt universities, in an endeavour to ensure they are using two languages, have used the term “wānanga”. But what I cannot accept, given the protected definition of universities in our law and the clear criteria of what is a university, is that the wānanga calls itself one. It is not a university, and that is why the Government has taken that matter to the Registrar of Companies.

Dr Don Brash: As the Prime Minister presided over a Cabinet that increased funding for Te Wānanga o Aotearoa from $5 million in the last year of the National Government administration to $239 million last year, did she turn her mind to assess whether her Government was getting value for money for New Zealand taxpayers; if so, what conclusion did she reach?

Rt Hon HELEN CLARK: It is my view that processes set in train for course approval from the time of the Education Act 1989, and the process of uncapping equivalent full-time student numbers in 1998 by the Rt Hon Wyatt Creech, have led to a situation where value has not been got for money—and we will deal with it, just as members opposite never did.

Gordon Copeland: Is the Prime Minister aware that the State Services Commission has developed guidelines to ensure that relatives of managers and executives are employed only via an open and unbiased process, and is it her view that equivalent employment processes should be a prerequisite before $239 million of taxpayers’ funds is handed over to Te Wānanga o Aotearoa or to any equivalent organisation?

Rt Hon HELEN CLARK: It is indeed my view that tertiary education institutions, as defined by the law, should act in a way consistent with guidelines set out by the State Services Commission. It is one thing for family businesses to employ whomever they like but it is another thing for an institution mandated under the law to practise nepotism—that is reprehensible.

Dr Don Brash: Is she aware of the statement in 2003 made by her colleague Steve Maharey, who was then the Minister responsible for tertiary education, that the Government was “delighted with the growth of Te Wānanga o Aotearoa” and “did not have concerns with the quality of courses they provided”; if so, does this continue to be the Government’s view?

Rt Hon HELEN CLARK: I certainly have concern about the quality of courses, and not only in the wānanga. That is why we are doing something about it.

Business—Confidence

2. CLAYTON COSGROVE (Labour—Waimakariri) to the Minister of Finance: What recent reports has he received on business confidence?

Hon Dr MICHAEL CULLEN (Minister of Finance): The latest National Bank business confidence survey showed a net 31 percent of businesses are confident of their own firm’s prospects over the next 12 months; employment and investment intentions are running above average, which suggests to the bank’s chief economist that GDP growth will exceed 0.7 to 0.8 percent in the current quarter, and in the last quarter of last year.

Clayton Cosgrove: Has he received any further reports on sentiment in the business sector?

Hon Dr MICHAEL CULLEN: Yes, the most recent Dominion Post survey of business opinion in the Greater Wellington area shows 67 percent of those surveyed were either satisfied or very satisfied with the Government’s economic management. I have also heard the retail sector is anticipating a boom in pyjama purchases from loyal members of the National Party.

Mr SPEAKER: The last sentence was irrelevant to the answer.

Dr Don Brash: Given that the Minister has provided us with a good summary of what the private sector has done to generate economic growth, perhaps he would like to have a stab at what the Government has contributed other than higher taxes, more regulation, more bureaucracy, and lower-quality public services?

Hon Dr MICHAEL CULLEN: I will try to take a few of those points. The number of surgical procedures carried out has significantly increased under this Government; the Government, of course, is now under some attack for excessively increasing participation rates in tertiary education; and the Government has massively increased the investment in roading and in public transport. There have been a number of major announcements in relation to electricity generation over the last year, a significant proportion of those—nearly all, in fact—coming from public sector organisations and from the State-owned enterprises; and, of course, we are trying to upgrade the transmission system, but that member’s mates south of Auckland are trying to stop it happening.

Rt Hon Winston Peters: If business is so confident about its future, and the country’s future, how come we have a massive balance of payments crisis looming in this country, the highest interest rates in the OECD, energy and fuel prices rocketing out of all proportion, and a massively inflated dollar; and what does the Government think about that?

Hon Dr MICHAEL CULLEN: Taking the last point, the primary cause of the high New Zealand dollar is the low US dollar caused by the massive double deficits in the US. The United States Government has been following National Party policy: cut taxes, but do not cut expenditure, and hope that somehow or other it all pays for itself.

Sue Bradford: If business confidence is so good, will the Minister heed the call from the president of the Labour Party to support the unions’ 5 percent wage rise campaign?

Hon Dr MICHAEL CULLEN: Wage negotiations are a matter between employers and their employees, or the trade unions representing those employees. We are not going to interfere in that matter, as I think the National Party did not interfere between 1990 and 1999.

Immigration—Policy

3. Rt Hon WINSTON PETERS (Leader—NZ First) to the Minister of Immigration: Is he confident that his immigration policy is sufficiently protecting New Zealand from any adverse effects, including the threat of terrorism; if so, why?

Hon PAUL SWAIN (Minister of Immigration): The Immigration Act was strengthened in 1999 with the aim of protecting New Zealand from adverse effects of immigration, including the threat of terrorism. Part IVA of that Act deals with people who pose a security risk. The Government is currently reviewing various aspects of the Act to ensure that it works more effectively.

Rt Hon Winston Peters: Is he confident that Asha Ali Abdille, the refugee sickness beneficiary whom he ordered an inquiry into last year, and who has a string of criminal convictions, is not a threat to the New Zealand community; if so, why?

Hon PAUL SWAIN: Yes, I did order an inquiry into that. There were two issues: firstly, the seriousness of the alleged crimes, which is still being investigated, and, secondly, whether she was a fit and proper person to bring in other family members. That whole policy issue is one that I have currently under review.

Rt Hon Winston Peters: Why was it, after an Official Information Act request to his office was lodged, that the reply came back with so many blanks such as that, with hardly a word on the page, that no one is any the wiser, including the blanking out of Asha Ali Abdille’s criminal history, and also the department’s recommendations being blanked out as to what to do with this woman who has been trying to bring 14 members of her family into this country; what on earth is going on?

Hon PAUL SWAIN: That information was released on advice.

Hon Tony Ryall: Has the Minister been made aware of the Refugee Status Appeals Authority decision 75081 made last year on 5 November, which is still suppressed for apparently exceptional reasons and involves an applicant of Jordanian/Palestinian background, and are there any security issues associated with that claim?

Hon PAUL SWAIN: I am not aware of decision 75081, and therefore cannot comment further.

Rt Hon Winston Peters: I seek leave to table a document released under the Official Information Act from the Minister, which shows there is no information on it, at all.

Document, by leave, laid on the Table of the House.

Student Loans—Minister’s Description

4. Hon PETER DUNNE (Leader—United Future) to the Minister of Education: Does he stand by his description of the student loan scheme as “very generous”?

Hon TREVOR MALLARD (Minister of Education): In the context of fees that are approximately two-thirds of those in Australia, an expansion of allowances so that even more students are eligible, no interest on student loans while studying, and at least half of all repayments going towards the principal of a student loan, yes.

Hon Peter Dunne: Can the Minister therefore confirm that since 2000 the amount of student loan interest collected by the Government has quadrupled from $43 million to $161 million, and that it will increase almost tenfold, to $395 million, by 2007; and does that not really mean that the student loan scheme is very generous to the Government, rather than to students?

Hon TREVOR MALLARD: I want to make it quite clear that the Government loses money on the loan scheme.

Lynne Pillay: What are the benefits of the student loan scheme?

Hon TREVOR MALLARD: Access to education for students who could not otherwise get there.

Hon Peter Dunne: Could the Minister further confirm that if the student loan scheme interest rate for the coming year was set to cover the rate of inflation and the administration costs of the scheme, including costs arising from deaths and bankruptcies, the rate would actually be 3.7 percent per annum, rather than 7 percent, as it is at present; if so, why is the rate as high as that, when the Government’s tills certainly seems to be ringing with interest payments?

Hon TREVOR MALLARD: Because it is designed to at least approach the cost of the borrowing on the Government’s part.

Hon Peter Dunne: Can the Minister then explain to the House how the Government sets the rate at that level to cover the cost of the Government financing the scheme, when the Government has actually borrowed in only 1 year out of the last 10?

Hon TREVOR MALLARD: The member, who is reasonably financially literate, knows that there is a cost of capital involved. The Government has to keep its borrowings higher in order to on-lend to the students.

National Certificate of Educational Achievement—Variability

5. Hon BILL ENGLISH (National—Clutha-Southland) to the Associate Minister of Education: Does he agree with NZQA Group Manager Secondary Education Kate Colbert’s comments regarding NCEA results that “year-to-year variability in mainstream areas, such as mathematics, is as expected.”, and is he satisfied with reported levels of variability?

Hon DAVID BENSON-POPE (Associate Minister of Education): I am not yet in a position to say whether I fully agree with that statement. I would expect some variability in National Certificate of Educational Achievement (NCEA) results, both between years and between subjects—as, indeed, one would expect under any examination system. However, I am not yet assured that the level of variability that was observed in the 2004 NCEA results was appropriate or acceptable.

Hon Bill English: Is the Minister aware of widespread public concern that unacceptable variability punishes students with the consequences of a bad assessment system; if he is aware of that, why is he allowing the New Zealand Qualifications Authority to do a review of variability, when the authority states that all the variability is all right, acceptable, and expected?

Hon DAVID BENSON-POPE: I am aware of that public concern, and that is why I have instituted the State Services Commission review, which covers this matter. It is important, though, that the member is not over-fixated on variability. I shall help him and the House with some information. For example, in terms of the final year of School Certificate results, in 2001, subject variability was as follows: accounting, 42.9 percent failed; chemistry, 16 percent failed; biology, 33.3 percent failed; Latin, 5.9 percent failed; and agriculture, 48.6 percent failed. Indeed, in the Cambridge exams, which are often vaunted as not having this issue, in terms of the percentage of students who gained failed grades in November 2003 accounting had 32.4 percent failure; design had 2.2 percent failure; Spanish had no failure; chemistry had 30 percent failure; French had 1.1 percent failure; Chinese had no failure; and business studies had 40.4 percent failure.

Helen Duncan: What action has the Minister taken with regard to variability in NCEA results?

Hon DAVID BENSON-POPE: As members will be aware, the State Services Commission is currently reviewing issues related to the 2004 New Zealand Scholarship results and to systems at the New Zealand Qualifications Authority. Last week I also wrote to the State Services Commissioner, asking that this review, instigated by the Government, be expanded to include an investigation into the apparent variation in NCEA results, both between subjects in a year and between years. I believe that it is entirely appropriate that the Government seek this level of assurance, in the circumstances.

Hon Brian Donnelly: Will the Minister explain why, for the level 1 geometry standard “can solve right-angled triangle problems’’, in 2002 over 5,000 students were graded excellent, yet in 2003 only 70 students were graded excellent; is this the degree of variability that the New Zealand Qualifications Authority claims is “as expected”?

Hon DAVID BENSON-POPE: No, I cannot provide the member with that level of detail, but it is exactly that issue that the State Services Commissioner will be confirming. It may be, of course, that there was a change of standard, as there was in the case of the one that was asked about in the House last week. I can easily confirm that for the member.

Deborah Coddington: Is the Minister aware that since 1990 Professor Warwick Elley has variously called the NCEA a bureaucratic nightmare, a juggernaut, and a giant step backwards, and has warned about unacceptable variability for over a decade; and has he received any reports that the National Party has changed its policy on the NCEA?

Hon DAVID BENSON-POPE: I have no responsibility for the National Party’s policy on this matter, but I am aware of the comments that various educational philosophers such as Professor Elley have made. [Interruption] I am also aware of a majority of both educators and educational philosophers—

Mr SPEAKER: Order! Please be seated.

Hon DAVID BENSON-POPE: —who have quite contrary positions.

Mr SPEAKER: Order! When I call “Order!”, people sit down. I know what that member is going to say. I could not hear the answer.

Rt Hon Winston Peters: I raise a point of order, Mr Speaker. It is always a sad thing when we see relationships fall apart, but the controversy coming from over here and over there, every time that the ACT party—

Mr SPEAKER: The member knows that is not a point of order. I just want to warn members. I, of course, allow interjections during answers, because they are provocative and provocative comments can come. I think that is part of the good way we can have proper debate in this House. But interjections have to be reasonable and reasonably rare, and I think that on both sides of the House, in that particular case, they were not.

Rodney Hide: I raise a point of order, Mr Speaker. The Minister was interrupted whilst answering his question and I do not think he had finished.

Mr SPEAKER: The Minister had finished.

Hon Bill English: Can the Minister confirm, for the benefit of students, teachers, and parents in New Zealand, his decision that the variability problem with NCEA will be investigated by Mr Doug Martin, who has no expertise in education and absolutely none in assessment; and why does he think that that is an adequate response to widespread concern that the results and the assessment of NCEA are unfair to the students who have to wear the consequences of incompetent administration and marking?

Hon DAVID BENSON-POPE: I have confidence in the State Services Commissioner’s choice of reviewer, and I encourage that member to wait for the report before he makes such ridiculous judgments.

Hon Bill English: Is the Minister aware of allegations from teachers that, for instance, the chief facilitator for level 3 graphics was a phys ed teacher; that the New Zealand Qualifications Authority has a policy that the liaison person for a subject area has to be a person without expertise in that subject; that the entire marking schedule for level 3 physics was adjusted after its sample marking of 200 scripts showed that the pass rate would be almost zero; that students in level 3 English who answered the Othello question had a 34 percent pass rate, but those who answered the alternative question on Hamlet had a 67 percent pass rate—

Mr SPEAKER: The question is getting to the stage where—

Hon Bill English: I am just asking whether he is aware of the allegations, Mr Speaker.

Mr SPEAKER: OK, but we have had sufficient number in this particular question.

Hon Bill English: I have just one more.

Mr SPEAKER: All right, one more.

Hon Bill English: And is he aware of this fax: “Here are my daughter’s results. Note paper 19087: ‘Demonstrate knowledge of calf-rearing’. Amy did not sit this exam, nor did she take any agricultural paper. The school does not even offer this course. We need to know if the calf-rearing credits are from another subject or are they someone else’s credits.”?

Mr SPEAKER: The question was too long. I do not care whether it had a number of parts to it; it was too long.

Hon DAVID BENSON-POPE: I am aware of some of the matters that the questioner raises, and that is why I have included them in the ambit of the State Services Commission investigation. I would say, though, that in general I am aware of a number of allegations from Mr English that generally turn out to be baseless.

Rt Hon Winston Peters: I seek leave to table the following evidence relating to Doug Martin, who was given health board appointments, Fire Service review appointments, and an appointment as chief of staff in Jenny Shipley’s office, when the National Party was last in office.

Documents not tabled.

Hon Bill English: I seek leave to table the CV of Mr Doug Martin, which will confirm what Winston Peters says, and will show that the reviewer has absolutely no expertise in education, and certainly not in assessment.

I also seek leave to table another document, which is a fax from Amy’s mum, who wants to know who the calf-rearing credits belong to.

Documents, by leave, laid on the Table of the House.

High-country Land—Nationalisation

6. DAVID PARKER (Labour—Otago) to the Minister for Land Information: Has he received any reports on plans to nationalise South Island high-country land?

Hon PETE HODGSON (Minister for Land Information): Yes, a report from the National Party’s Simon Power that this Government plans to nationalise the South Island high country—an unfortunate statement, because it is already publicly owned.

David Parker: How does the Government’s approach differ from that of previous Governments?

Hon PETE HODGSON: The Government will keep pastoral leases where doing so is consistent with its high-country objectives, whereas the National Governments of the 1990s just wanted to get rid of them. It follows that if leases are to be part of the long-term future, paying the proper long-term rental is a good idea.

Simon Power: Why would the Minister allow discussions to commence about reviewing rentals while the land-tenure review negotiations are under way, and does that not meet a definition of bad-faith bargaining?

Hon PETE HODGSON: I refer the member to the front page of the Christchurch Press of the Saturday before last, which leads with a headline that states: “Farmers expected high-country rent rises”.

Rt Hon Winston Peters: Why did the Minister not point that out to the questioner before the question was put later on the Order Paper—today at midday—because it would have had the effect of looking like this?

Mr SPEAKER: Supplementary question, Mr Donald.

Rod Donald: Does the Minister agree with the conservation manager of the Royal Forest and Bird Protection Society of New Zealand, Kevin Hackwell, that high-country farmers are paying less rent for their huge farms than most beneficiaries are paying for their State houses and, as a consequence, those farmers are ripping off the taxpayer; if not, why not?

Hon PETE HODGSON: I agree, to the extent that I have advice that high-country leases are probably set at about a third or a quarter of market rates. However, there have been increases on some runs in recent weeks.

Crime—Clearance Rate

7. Hon TONY RYALL (National—Bay Of Plenty) to the Minister of Police: What types or categories of “clearance” of reported crimes exist, and, of these, which are included in reported clearance rates?

Hon GEORGE HAWKINS (Minister of Police): The clearance categories used by the police for recorded offences are prosecution, warning, diversion, referral to youth aid, mental state of an offender, offender in custody, and other, which could include such as where an identified offender has died.

Hon Tony Ryall: Would the Minister please explain why crimes are being recorded as being resolved without the alleged offender being spoken to, arrested, charged, or convicted?

Hon GEORGE HAWKINS: That could include people who have died, or who have left the country and gone overseas when there is DNA evidence that connects them to a crime.

Ron Mark: Did the Minister not see the reported comment of the police national statistics manager, Mr Gavin Knight, who confirmed that a crime could be deemed “resolved” without speaking to, arresting, charging, or convicting the alleged offender; if so, does that explain why a family man in south Auckland who confronted a burglar in his home on 10 February 2004, and who gave the police DNA material, has never heard back from the police about that burglary investigation, but has since been burgled again on 3 February this year, and has that crime also since been “resolved” in the same way?

Hon GEORGE HAWKINS: It is interesting that Greg O’Connor in the same article said: “There is no evidence that people are fiddling the data, and I don’t believe there is any dishonesty …”. I have faith in the New Zealand Police, unlike those in other parties.

Hon Richard Prebble: I raise a point of order, Mr Speaker. Those were very interesting observations by the Minister of Police, but they bore no resemblance to the question. I was starting to get interested as to whether that crime had been solved.

Mr SPEAKER: That is an interesting point of order but I think the Minister did address the actual question.

Hon Richard Prebble: I raise a point of order, Mr Speaker. Since you have decided that the Minister did address the question, I ask in what possible way he did that. The Minister just got up and told us about an interesting article he had read in a newspaper or some staff magazine.

Mr SPEAKER: The Minister got up and added to the comments about that article, and then added further comments that were made in that article.

Judy Turner: Can the Minister suggest any reasons, other than the ones he has tendered so far during question time, for the measurable differences between clearance rates, and charge and conviction rates?

Hon GEORGE HAWKINS: Clearance rates are used by the police when they believe an offence can be cleared because of prosecution, warning, diversion, referral to youth aid, mental state of the offender, offender in custody, or other. Those are the areas the police use.

Hon Tony Ryall: Does the Minister have any concerns that different police districts use different definitions of a crime clearance?

Hon GEORGE HAWKINS: The Commissioner of Police has assured me that checks are built into crime recording practices at operational and national levels, using proven methods.

Hon Tony Ryall: How do the police, in calculating resolution rates, deal with a case like this: a school bus driver was apparently charged early last year with child pornography offences, which he admitted in court last Wednesday, but neither the police nor the school nor the parents were told of those charges by the Department of Internal Affairs?

Hon GEORGE HAWKINS: That is a matter for the police, not for the Minister.

Ron Mark: I seek leave to table an article containing this comment from Greg O’Connor of theNew Zealand Police Association: “officers were working in a ‘statistically driven’ climate where the process for ‘solving’ offences was less stringent than in the past.”

Document, by leave, laid on the Table of the House.

Ron Mark: I seek leave to table an email from Mr Malcolm Ross and his partner, Aura Finch, outlining their dissatisfaction with the police’s reaction to solving their burglary problems.

Document, by leave, laid on the Table of the House.

Animal Welfare Act—Animal Welfare Codes

8. SUE KEDGLEY (Green) to the Associate Minister of Agriculture: Why has the Government put in place layer hen and pig codes of animal welfare which allow practices that do not fully meet the obligations of the Animal Welfare Act 1999?

Hon JIM SUTTON (Minister of Agriculture), on behalf of the Associate Minister of Agriculture: The codes were put in place because they are the best animal welfare solutions that the National Animal Welfare Advisory Committee felt it could recommend at the time. The Act allows the setting of minimum standards that do not meet all the requirements of the Act, particularly the requirement that the animals be able to exhibit their natural forms of behaviour.

Sue Kedgley: Can he confirm that that can happen only when there are exceptional circumstances, and how can he claim that there are exceptional circumstances that could justify keeping sows in sow crates until at least 2015, as the new pig code does, when more than two-thirds of the industry has already abandoned sow crates without any apparent loss of income?

Hon JIM SUTTON: I can confirm that I have visited farms of all types, and that the farms that use sow crates do—at least in the examples I saw—meet high standards of animal welfare.

Sue Kedgley: Why did the Minister of Agriculture ignore the advice of the Regulations Review Committee, which advised him that in its view exceptional circumstances had not been established to justify an exception to the code, and that the proposed pig code, therefore, was not in accord with the Animal Welfare Act?

Hon JIM SUTTON: As required by law, I take advice from the National Animal Welfare Advisory Committee. It is a committee of experts. The parliamentary committee the member referred to may or may not know anything about animal welfare.

Sue Kedgley: Does the Government accept that it is cruel to keep millions of animals in cages where they cannot turn round or express normal patterns of behaviour, as required by the Animal Welfare Act—yes or no?

Hon JIM SUTTON: I can advise the member that natural forms of behaviour amongst animals are frequently far from conducive to the welfare of their fellow animals. They can be disgusting and vicious. I can further confirm that I have visited egg-producing businesses and seen that it is perfectly possible to have high standards of animal welfare in a caged-bird system.

Sue Kedgley: I raise a point of order, Mr Speaker. My question related to the Government. I accept that the member might have visited some farms and had a bit of a look around them, but I asked whether this Government accepts that it is cruel to keep millions of animals in cages—yes or no? I wonder whether he could answer that question.

Mr SPEAKER: The member cannot just expect a yes or no answer. The Minister can address that part of the question if he wishes.

Hon JIM SUTTON: It is certainly not a given that caged-bird systems are cruel. If members know of cases where animal welfare is being abused or not kept up to scratch, it is their duty to report that to the Ministry of Agriculture and Forestry or the SPCA so that action can be taken.

Ian Ewen-Street: Does the Associate Minister agree with comments made in 2001 to the Pork Industry Board by his colleague the Hon Jim Sutton when he said: “I cannot believe that phasing out sow crates by 2006 is an impossible target for you to achieve,”, and: “If 80 percent of producers can do it, why can’t the remainder?”; if he does agree with Mr Sutton, why has the Government accepted a welfare code that will consign many thousands of sows to crates until at least 2015?

Hon JIM SUTTON: On behalf of my colleague the Associate Minister, I can say that as far as I know he does agree with Mr Sutton. He would be well aware that since then both he and I have had a good deal of expert advice from the National Animal Welfare Advisory Committee, and we accept that the codes that have been put in place are the highest standard that is practicable and enforceable at this time.

Dart Valley—Rat Plague

9. H V ROSS ROBERTSON (Labour—Manukau East) to the Minister of Conservation: What actions are being taken to protect native wildlife in the Dart Valley threatened by a rat plague?

Hon CHRIS CARTER (Minister of Conservation): Funding of $120,000 from the Operation Ark initiative I established in 2003 has been made available to the Department of Conservation in Otago so that it can immediately put in place intensive rat control measures. Without that response the endangered yellowhead, which lives in that valley, will be in grave danger if rat numbers continue to rise and reach plague proportions.

H V Ross Robertson: What is the purpose of Operation Ark and how is it to be funded?

Hon CHRIS CARTER: Operation Ark is a rapid response initiative designed to protect key populations of critically threatened native wildlife in South Island forests; occasional explosive increases in rat and stoat numbers can have a devastating impact on species. It is funded out of the additional $186 million made available for the biodiversity conservation fund in 2000 by this Government.

Immigration—Non-genuine Refugees

10. Rt Hon WINSTON PETERS (Leader—NZ First) to the Minister of Immigration: What steps is he taking, if any, to ensure that our immigration laws are not exploited, and what is his policy on removing non-genuine refugees?

Hon PAUL SWAIN (Minister of Immigration): In 2003 the Government boosted the Immigration Service’s ability to manage immigration risk by $20 million over 4 years. All non-genuine refugees who are in New Zealand unlawfully are subject to removal. In 2003-04, 667 non-genuine refugees were either removed or departed voluntarily from New Zealand.

Rt Hon Winston Peters: Going by answers gleaned from the Minister’s office to two questions lodged on 1 February, can he explain why he has allowed 700 refugees to arrive here who travelled on false passports, who claim to have travelled on false passports, or who have destroyed, lost, or otherwise misplaced their travel documentation; and how are any of them different from Ahmed Zaoui, a suspected terrorist who has already cost the New Zealand taxpayer well over $1.1 million?

Hon PAUL SWAIN: Firstly, the number of people who are arriving in New Zealand claiming refugee status has significantly declined since the late 1990s. That is a fact. Secondly, they are different from Ahmed Zaoui because he is the only person in New Zealand who has been subject to a security risk certificate.

Moana Mackey: What is the Government doing to protect New Zealand from illegal immigration?

Hon PAUL SWAIN: The Government has made considerable progress in improving New Zealand’s border security, including introducing Advance Passenger Processing, whereby checks are made before people board a plane.

Shane Ardern: Does it work?

Hon PAUL SWAIN: Yes, it does, actually; the numbers have declined significantly.

Rt Hon Winston Peters: Rubbish.

Hon PAUL SWAIN: I will show the member the figures if he wants. The Government has also increased funding for fraud detection, prosecution, and intelligent analysis; and it has introduced tough provisions for those who are involved in people-smuggling.

Keith Locke: How can it benefit New Zealand to deport Iranian asylum seeker Thomas Yadegary, who is currently in Mount Eden Prison, who has lived here for 12 years and contributed as a top chef and as a model citizen; why not keep him here rather than deport him to Iran, where he could be persecuted for converting from Islam to Christianity?

Hon PAUL SWAIN: I cannot comment specifically on that particular case. But I can say that a person who has been in New Zealand and appealed for, for example, refugee status, has been declined, has gone through all the channels, and is in New Zealand unlawfully should go home—end of story.

Hon Tony Ryall: Why is the Government allowing recent refugees to sponsor in up to a dozen of their family members each, when many of the people who are sponsoring their family members simply cannot afford to support them in this country?

Hon PAUL SWAIN: For a start, they are allowed to sponsor because that is part of the policy. But, as I said before, I am looking at this matter—[Interruption] Well, that is the reason why they can do it. I am looking at this matter, because in many cases those people are unable to support their family members, and the issue does need to be addressed.

Rt Hon Winston Peters: With respect to the Minister’s first answer, if only 300 of the 700 people who have arrived here on false passports in the last 3 years have been approved for residency, can he confirm that the other 400 have left New Zealand; if not, why not?

Hon PAUL SWAIN: No, I cannot, but I will look into it.

Question No. 11 to Minister

Hon KEN SHIRLEY (ACT): I raise a point of order, Mr Speaker. I seek your consideration of this matter. When I submitted my question this morning, all the advice had been that the document it concerns was indeed secret, and had been so for 4 years, but, upon my submitting my question, miraculously this document became available. I therefore seek the leave of the House to amend my question accordingly.

Mr SPEAKER: To what extent does the member want to amend it?

Hon Ken Shirley: I want to omit the second part of the question, which is no longer relevant.

Mr SPEAKER: I will rule from the Chair that that is satisfactory. Please read the question as amended.

Te Wānanga o Aotearoa—Treaty of Waitangi Settlement

11. Hon KEN SHIRLEY (ACT) to the Minister of Education: What specifically was compensated by the $40 million he agreed in November 2001 to give as a Treaty of Waitangi settlement to Te Wānanga o Aotearoa?

Hon TREVOR MALLARD (Minister of Education): The settlement follows a Waitangi Tribunal decision and the comments by the then Minister, Max Bradford, that the “present facilities are inadequate to allow the wānanga to teach in an appropriate environment”. It compensates the wānanga for the Crown’s failure to protect and support the wānanga through the equivalent full-time students funding system, and for failing to provide the claimant with capital grants on the same basis as other tertiary institutions. If the member had asked me for a copy, I would have given one to him.

Hon Ken Shirley: Why is it that my office has, in fact, been trying to get this report from the Minister and was denied it, and the press were trying to get it from his office and were denied it right up until yesterday, and yet once my question was lodged the report miraculously became available; and can the Minister explain to the House what he was so ashamed of in this document that he kept it secret for 4 years and would not let it be exposed to public scrutiny?

Hon TREVOR MALLARD: It is my understanding that it was made widely available at the time it was signed. It is a document that was promoted by the ACT party. The ACT spokesperson said that the wānanga had never had capital funding from the Government—only a very small amount—and had really had to subsist. That is what the ACT party said at the time.

Dr Ashraf Choudhary: Who made the decision to uncap the funding, and what rationale was given at the time?

Hon TREVOR MALLARD: The decision to uncap the funding was made under the National Government. With reference to the wānanga, Wyatt Creech said: “This new policy allows it to fund every student that comes through its doors. What can be unfair about that?”.

Hon Brian Donnelly: Can the Minister confirm that the wānanga’s claim for a capital injection was rejected by the National - New Zealand First coalition, and will he also confirm that the request was rejected on the basis that since the wānanga’s inception it had received capital funding by way of equivalent full-time student funding and that any further capital injection would be double-dipping?

Hon TREVOR MALLARD: My understanding is that that was correct at the time. The coalition then broke up and the National Party policy changed. That is probably why Don Brash and Rongo Wētere spent so much time together last weekend.

Hon Ken Shirley: Why did the Minister and his colleague Dr Cullen sign a detailed agreement in 2001 that specified education outcomes, completion dates, and quality measures when that clearly meant nothing, as the Minister continued to throw massive amounts of money at this organisation in spite of having his own appointee on the wānanga council?

Hon TREVOR MALLARD: I think that for a large period of time there were four appointees out of 18 to 20 on the council. It is fair to say that all generous interpretations are that the wānanga had met the numbers required by the document.

Hon Bill English: I seek leave to table the deed of settlement dated 16 November 2001, signed by Michael John Cullen and Trevor Colin Mallard.

Document not tabled.

Hon Ken Shirley: What is the Minister’s response to the deal between Lytton High School in Gisborne and the wānanga in which the wānanga paid $3,500 to sponsor five pupils and a teacher to participate in a hip-hop festival in Christchurch last September, and in return each pupil was required to enrol 10 people in the wānanga’s Mahi Ora programme—an exercise that delivered approximately $90,000 in equivalent full-time student funding to the wānanga?

Hon TREVOR MALLARD: That is one of the problems with an uncapped arrangement for that sort of institution.

Larry Baldock: I seek leave of the House to table a copy of the National - New Zealand First coalition agreement, which promised to provide stable Government for a 3-year term from 1999 to 2002.

Mr SPEAKER: Leave is sought to table that document. Is there any objection? There is. Incidentally, leave should be sought at the end of each question.

Hon Ken Shirley: What is the Minister’s response to the fact that the wānanga gave a $12 million contract to an air-conditioning refrigeration company called Power Chill that is owned by a son of the chief executive of the wānanga, who was also a salaried executive of the wānanga, when the contract did not go out for tender?

Hon TREVOR MALLARD: I think it is another one of the long list of matters that is going to the Auditor-General’s inquiry. It is, I think, typical of a lack of proper procedures, lack of proper governance, and lack of proper management at the wānanga, and it is the reason that I have intervened.

Hon Bill English: Why does the Minister speak as if the wānanga has had uncapped funding, when in 2003 the Government imposed a growth cap on all tertiary institutions and then made an exception for the wānanga, with the result that last year the wānanga received over $50 million more than if he had kept his own cap in place?

Hon TREVOR MALLARD: My understanding is that the figures that the member has given are inaccurate. I understand the agreement the wānanga negotiated with the Tertiary Education Commission resulted in lower total equivalent full-time student funding over a 3-year period, rather than higher. The member is wrong again.

Rt Hon Winston Peters: With respect to the practices being outlined by Mr Shirley—without one document to back him up at this point in time—has he seen the comments from Tariana Turia about the non-tendering of contracts being part and parcel of the Māori whānau and kinship concept, or has he taken that to mean that that is her understanding of Māori family planning?

Hon TREVOR MALLARD: I have heard expressions that it may not be appropriate to use in this House. It is absolutely inappropriate for there to be a double standard in this area. Just because someone is Māori does not mean that he or she should give contracts to mates. It might be a Tory practice, but it does not happen on the Government side of the House. I call on Don Brash to condemn his very good friend Rongo Wētere, with whom he spent much of the last weekend. [Interruption]

Mr SPEAKER: Now the member will just leave the Chamber.

Hon Chris Carter withdrew from the Chamber.

Rodney Hide: Did the Minister know that the wānanga sponsored the students from Lytton High School in return for each of them gathering up 10 students to take more taxpayer money, and did he know of the contract to Power Chill—to Rongo Wētere’s son—and if he did not know that, what on earth were his four appointees to the wānanga council doing?

Hon TREVOR MALLARD: No, I did not know. The member should remember that in the terms of appointments to councils there is not a direct reporting relationship.

Hon Bill English: I seek leave to table a detailed report from an education review of the Government’s decision to cap all tertiary institutions, and to make an exception for the wānanga.

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

Rt Hon Helen Clark: I seek leave to table evidence that Rongo Wētere was a front-runner for the job of National Party Māori vice-president.

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

Hon Ken Shirley: I seek leave to table documents and correspondence relating to the sponsorship of Lytton High School by the wānanga, and also documents relating to the company Power Chill.

Documents, by leave, laid on the Table of the House.

Hon Richard Prebble: Can the Minister confirm that when the previous National Government declined to accept the Waitangi Tribunal’s recommendation that funding the wānanga was a treaty claim, the then Opposition did publicly agree with that; if that was so, given the fact that he has told the House that before he became Minister he had concerns about the wānanga, could he run by us again why the Labour Government signed a deal to give it $40 million?

Hon TREVOR MALLARD: Payments were, of course, made by the National Party for capital.

Hon Bill English: Why did you sign, then?

Mr SPEAKER: I did not sign anything. Please give an answer.

Hon TREVOR MALLARD: The National Party did make capital payments post the Waitangi Tribunal decision. The settlement was something that was supported by the ACT education spokesperson at the time, and I am not aware, or I cannot recall, positions taken pre the Waitangi Tribunal decision.

Rodney Hide: I raise a point of order, Mr Speaker. The Minister did not answer the question. He was the one who had concerns back then when he signed that document. He was asked very clearly by Mr Prebble, given that he had those concerns, why he signed it. It is very interesting that Donna Awatere Huata supported the signing of it, but we were interested in why the Minister signed it. Not once did he address his behaviour as Minister in answering that question.

Mr SPEAKER: The Minister must comment on that part.

Hon TREVOR MALLARD: I refer the member to my answer to the original question.

Mr SPEAKER: No, that is not satisfactory. I want the Minister to address the question, as I said. If he wants to answer by referring to another answer he gave he is entitled to, and I want him to do so. The question was properly asked.

Hon TREVOR MALLARD: I refer the member to the original answer to the first question, which was that I agreed with Mr Bradford that the facilities were inadequate, and that compensation—this was the Government’s view and my view—was appropriate in terms of the Waitangi Tribunal’s decision.

Question No. 12 to Minister

Hon MAURICE WILLIAMSON (National—Pakuranga): I raise a point of order, Mr Speaker. The subject of this question is a recent bill that went through the House—the Customs and Excise (Motor Spirits) Amendment Bill—putting 5c on to the excise. That bill was shepherded through the House by the Minister of Customs. He has been the Minister handling all the media announcements on this matter, including on National Radio this morning when he announced that it was a new tax. He is in the House today and, as we directed this question to him, it seems incomprehensible why, with all of that participation, he is not the Minister who will now answer this question.

Mr SPEAKER: The member has been a Minister of the Crown; he knows that it is up to the Government.

Fuel Taxes—Petroleum Excise

12. Hon MAURICE WILLIAMSON (National—Pakuranga) to the Minister of Finance: Why does he consider it necessary to place an additional 5c per litre taxation on petrol when the Government is running a surplus of over $6 billion, and over $570 million currently collected from petrol excise is not spent on roads?

Hon Dr MICHAEL CULLEN (Minister of Finance): In response to the member’s question on fiscal matters, even after the increase in excise duty, the amount will not cover the full economic cost of the road system. The Government inherited years of under-investment on roads throughout the 1990s, presided over by lazy and ineffective Ministers of Transport. All the increase in the excise duty will go on land transport. In addition, over $1.1 billion extra will go into land transport in Auckland and Wellington over and above the excise duty.

Hon Maurice Williamson: Can the Minister confirm that he is the same Dr Michael Cullen who, along with Helen Clark and the now Minister of Transport, Pete Hodgson, voted in this House in 1995 for all petrol tax to go to the roads and not to the consolidated account; and if it was appropriate then, when the Government accounts were only just in balance, why is it not appropriate now, when there is a $6 billion surplus?

Hon Dr MICHAEL CULLEN: The member is quite unfair to his former colleague, the Rt Hon Sir William Birch. The Government was running a fairly strong operating surplus in 1995.

Dr Don Brash: I raise a point of order, Mr Speaker. That was in no way at all an answer to that question. Could you ask the Minister to address the question my colleague asked?

Hon Dr MICHAEL CULLEN: The member’s question made an assertion at the end about the surplus being only in balance at the time. The member is wrong. I am challenging the actual assumption that underlay the question.

Mr SPEAKER: The Minister can do that in answering the question, because it was contained in the question itself.

Rod Donald: How much of the extra petrol tax will be invested in public transport, rail, and traffic demand management in recognition of the contribution they make to reducing congestion, energy consumption, and pollution?

Hon Dr MICHAEL CULLEN: I do not have those exact details in front of me. The member is certainly correct in asserting that not all the money is going in terms of road construction; money is also money going into public transport, etc.

Larry Baldock: Does the Minister agree that it is important to tell motorists what the $570 million from their petrol excise duty, which is not spent on roading, is actually spent on, rather than responding to such legitimate inquiries with the standard and inadequate response of what hospitals or schools will be closed if the Government does not keep robbing the motorists as previous Governments have done; if so, when will the road pricing study results be released to members of the public so they can determine for themselves whether the diversion into the Crown bank account is justified?

Hon Dr MICHAEL CULLEN: I am happy to release today the most important numbers in that respect. At a recent public hearing of the Finance and Expenditure Committee I was asked to produce data in terms of a capital charging regime on roads. I have now produced that data. At an 8 percent capital charge, which is less than the Government normally applies on capital charge, the roading system would generate a capital charge requirement of $1.047 billion, which is two-thirds higher than the amount retained in the Crown bank account. In other words, the excise duty does not even cover the capital charge element, let alone any other economic costs arising out of land transport.

Hon Maurice Williamson: Given that the Minister of Customs is in the House and did do the Morning Report interviews explaining this tax, I seek leave to ask this supplementary question of the Minister of Customs instead of the Minister of Finance.

Mr SPEAKER: Leave is sought—any member can seek leave. Is there any objection? There is.

Hon Maurice Williamson: Is this Dr Michael Cullen the same person who, along with Helen Clark and Pete Hodgson, voted in 1995 in this House for all petrol tax to go to the road fund?

Hon Dr MICHAEL CULLEN: No. I am 10 years older, and that much wiser.

Personal Explanations

Question No. 4 to Minister, 17 February

Hon TONY RYALL (National—Bay Of Plenty): In question No 4 on 17 February I inadvertently misquoted the Minister of Police from 8 February, and I apologise for that.

Urgent Debates Declined

Te Wānanga o Aotearoa—Appointment of Crown Observer

Mr SPEAKER: I have received a letter from the Hon Ken Shirley seeking to debate under Standing Order 373 the appointment of a Crown observer to Te Wānanga o Aotearoa. This is a particular case of recent occurrence, involving ministerial responsibility, but I do not consider that the addition of a Crown observer to the council requires the immediate attention of the House today. There will be other parliamentary opportunities to explore that. The application is declined.

Bills

Hazardous Substances and New Organisms (Approvals and Enforcement) Amendment Bill

Referral to Education and Science Committee

Debate resumed from 17 February.

Mr SPEAKER: The question is that the Hazardous Substances and New Organisms (Approvals and Enforcement) Amendment Bill be referred to the Education and Science Committee for consideration and that the committee finally report the bill to the House by 3 June 2005, since when an amendment has been moved by the Hon Nick Smith to omit the words “and that the committee finally report the bill to the House by 3 June 2005”.

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

Ayes 45

New Zealand National 27; ACT New Zealand 8; Green Party 9; Māori Party 1.

Noes 74

New Zealand Labour 51; New Zealand First 13; United Future 8; Progressive 2.

Amendment not agreed to.

Bill referred to the Education and Science Committee.

Bills

Ngāti Awa Claims Settlement Bill

In Committee

Debate resumed from 17 February.

Preamble (continued)

Dr WAYNE MAPP (National—North Shore): This is in the nature of a point of order. I raised a point of order when we were last in Committee on this bill, but the Committee rose before it was considered. The matter was quite simple. My colleague Georgina te Heuheu had spoken in Māori, and as we had an interpreter in the House—

The CHAIRPERSON (Ann Hartley): Can I just correct the member. I cannot rule on a previous point of order. I presume that the member is raising a new point of order?

Dr WAYNE MAPP: The subject matter of the point of order is still out there, in a sense.

The CHAIRPERSON (Ann Hartley): The member can raise the matter as a point of order.

Dr WAYNE MAPP: I raise a point of order, Madam Chairperson. My colleague Georgina te Heuheu made a statement in te reo Māori. We have an interpreter present in the Chamber who should have a record of those proceedings, so I now seek, for the elucidation of non-Māori speaking members of Parliament and members of the public, an interpretation of those statements.

The CHAIRPERSON (Ann Hartley): The interpreter can interpret only what is before the Committee right now. If the member wants to repeat the point of order, the interpreter can interpret it.

Dr WAYNE MAPP: It was in fact my colleague the Hon Georgina te Heuheu who made the point of order.

The CHAIRPERSON (Ann Hartley): Is the member calling a point of order?

Hon GEORGINA TE HEUHEU (National): I raise a point of order, Madam Chairperson. Kāore ngā kupu, “te rūnanga”, i roto i tēnei pire mō ngā kupu o te Minita.

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

[In respect of the Minister’s statement, the words “te rūnanga” are not in this bill.]

The CHAIRPERSON (Ann Hartley): That is not a point of order for the Chairperson to rule on; it is really a matter for debate.

Dr WAYNE MAPP: The point of raising that whole issue, of course, was because of the extraordinary situation we are confronted with here. In the proceedings when we were last on the bill, the Government put forward an extensive Supplementary Order Paper that did not give a direct translation. That was the reason for the extensive points of order raised when the bill was last debated. Indeed, that is the reason for my request at this point, and the interpretation bears out the point exactly. The word “runanga” in the text on the Supplementary Order Paper was not properly translated.

What has the Government done about it? It has taken the extraordinary step of completely replacing Supplementary Order Paper No. 327 with a new Supplementary Order Paper, dated today—1 March, 2005—stating that the amendments are totally and correctly translated. I refer directly to the explanatory note on page 27 of the Supplementary Order Paper, under the heading “Amendments to Preamble”, which states: “These amendments ensure that the content of the Māori and English texts of the Preamble, and the number of recitals in both versions are the same.” The content is the same. That, of course, is what we would expect. We expect that such matters, when they are presented to Parliament, have equal validity and equal meaning.

The Government has been embarrassed by the proceedings of 1 week ago, to the extent that it now has had to make a correction—a correction, I suggest, that is not for just one occasion but that for hereon in, sets a general precedent for ongoing New Zealand Parliaments, under whatever Government, whereby legislation in two languages—and let us be clear: we are talking about legislation not about speeches given in the House, and so forth—from which legal rights and obligations flow should be directly translated. It raises the whole issue that members on this side of the Chamber have been raising for some considerable time: the use of the word “principles” of the Treaty of Waitangi as if those principles were some kind of substitute for the treaty itself.

Apparently, the Deputy Auditor-General is supposed to have knowledge of those principles. All I can say is that if some of the nation’s finest accountants can explain to the rest of us what the principles mean, then jolly good on them, because, frankly, some of the finest legal minds in the country have not been able to get to grips with what the term means. The reason is that it is a totally imprecise statement. Why would one move from the text of the treaty, which is quite simple and straightforward, although admittedly in two languages, and which is capable of a meaning under law and in the courts—and I see Mr Parker acknowledges that point—to another set of statements, apparently derived from the text but not actually the text, on which the courts then develop a whole new theory of law, and which have benighted this country for some considerable time? I use that by way of analogy on the importance of the English and te reo texts being the same, because legal rights and obligations flow from them.

I ask this of the Minister with his new responsibilities: does this now set a general precedent that hereafter whenever legislation is presented to the House in two languages there will be a total commitment to ensuring the two texts mean precisely the same thing, as much as languages actually can reach that situation? Do we have that assurance now, or do we blunder on in the dark, as was the proposal last week when the Government said: “Here’s sort of something that’s more or less the same as the other and the courts will just have to sort out the differences themselves.”? Given that the Government has tabled a Supplementary Order Paper today purporting that the content of the texts are the same, the Minister owes the Committee an explanation as to why the Government is doing this. What does it intend by it? Does it set a general precedent, and is it intended to be a direction to the courts?

Hon MARK BURTON (Minister in charge of Treaty of Waitangi Negotiations): I think it is fair to say that the last time the Committee sat on this matter some concern was raised by members about the proposed Māori wording in the preamble to the bill. Following consultation, the introduction of this new Supplementary Order Paper 329 is about trying to resolve the concerns that were raised seriously—at least, by some members.

The new Supplementary Order Paper does two things. Firstly, it inserts wording in Māori that is an exact, literal translation—and the member used quite careful and appropriate words—to the best of anyone’s ability ever to quite do that with two languages. We have to accept the nuances sometimes, and I know that the member understands that, but to the best of expert ability, in terms of both drafting and translation, that has been done.

The second thing that members raised some concern about—I think Mr Brownlee may have been the first—is, I think, on reflection, a legitimate concern, and that was to align the numbering systems. Although, grammatically, content in two paragraphs in one language may have been more logically contained in one paragraph in the other language, it did not help members’ understanding. I know that the member of New Zealand First found it unhelpful. Also, I think his points to officials, when he had a briefing, which were reported back to me, were quite correct. For members of Parliament and members of the public who genuinely want to use these opportunities to assist their understanding of both languages in reaching translation, we should, if we can, do things that assist that process.

I thank members and acknowledge the useful contributions they have made. As for the suggestion the member made that, as far as we can, this should be the way we proceed, it would be presumptuous of me to leap to that on behalf of all future legislation, but, certainly, it is something I will take careful consideration of in my new role and responsibility, as we go forward.

GERRY BROWNLEE (Deputy Leader—National): I wish to make a contribution on this preamble part of the Ngāti Awa Claims Settlement Bill, and simply to acknowledge that the Government has finally done the right thing and put together a Supplementary Order Paper to clear up some of the translation confusion that may well have existed had that course of action not been taken. It is disingenuous for the Minister in charge of Treaty of Waitangi Negotiations to hint that somehow this course of action has resulted from, I suppose one would say, diversionary or slowing tactics from the Opposition. That is far from the truth.

What it does point to, though, is our concern about the way in which the Office of Treaty Settlements goes about its business. Although we have been assured today that these sorts of translations will be dealt with in this new manner from this day on, to my mind this instance causes me to ask how many other things in this settlement bill are thereabouts—that is, not quite right, not quite accepted, but thereabouts, leaving open the opportunity for future generations of those upon whom this settlement is being settled to say it was an imposition by Parliament, and not an agreed position between the iwi and the Crown.

I state again—and I will state it over and over again—that I think it is inappropriate for the Office of Treaty Settlements to be recommending to Ministers that settlements proceed when so few of the members of the eligible iwi have committed to that settlement being full and final by casting a vote in favour of it. It does not matter what light one wants to put on it, or what sort of twist or turn; the reality is that when only about 30 percent of an iwi signs up to a settlement, far too many are left out there with the opportunity to say: “We didn’t accept that.” It may not be this generation, it may not even be the next or the one after that, but when we are dealing with a people who pride themselves on their oral history, and on the strength of being able to keep those things that are taonga to them through that oral history, I think we need to do a lot better than to go for settlements, telling the rest of the population that they are full and final, while so many of those who are the “settlors”, or “settlees”, or whatever the correct legal term is, have not bought into the settlement itself.

I am very pleased that in the preamble we have been able to set a new precedent for how we go about these bills, and how the aspects of the bill that are described in the preamble should be kept very, very similar, if not completely the same, in both texts. I accept what the Minister said—there will be nuance differences—but I believe that in this case the Office of Treaty Settlements has made every effort to ensure that the recitals as they are written in one language translate relatively easily into the recitals as they are written in the other language, as best as that can be done, as my colleague Dr Mapp said.

So the National Party begins the Committee stage with some pride that it was National that pointed out the, I suppose one could say, inconsistency in the preamble. I cannot understand why the Minister responsible did not simply insist on this sort of exercise right from the outset.

We will be looking at the rest of the bill now, to ensure that all that is claimed in the bill is in line with what those who are having this claim—and I will say it—imposed upon them by the Labour Government are expecting, because the full and final aspect of any settlement is its most important aspect. New Zealanders have a right to expect that when the Office of Treaty Settlements recommends to a Minister that a bill proceed because it is at a point where the parties to the negotiations, one of which is the Crown—which, by the way, is all New Zealanders, and includes every Māori in this country, as well—have reached agreement between themselves, then we should believe that it will be sustained.

STEPHEN FRANKS (ACT): It is interesting that in this debate on the preamble to the Ngāti Awa Claims Settlement Bill we seem to have moved already into congratulating ourselves on having got what is described as an exact translation of two very long passages—a very long passage in Māori and a very long passage in English—both of which, in essence, re-record history. I say that it is interesting because I do not think this House has resolved anything for the future. When we realised that there might have been discrepancies we were unable to resolve it on the spot. We were told that it was a debating matter. Although this House keeps an interpreter full-time in the Chamber when we are debating, the Chair did not choose to refer that uncertainty to the interpreter. Instead, the Chair invited a Crown Minister to translate.

Hon Georgina te Heuheu: A former Minister.

STEPHEN FRANKS: I am sorry, it was a former Minister. I thank the Hon Georgina te Heuheu.

The position we ended up with was that we were told, quite seriously, by the Chair that if there were differences in two texts and no statement as to which would take priority, that was simply a debating matter, even though most of the people in this Chamber, including Māori members, were unable to tell us what the significance of that difference was. Although that may not matter in this bill if all we are doing is rewriting history for the purposes of giving colour to an apology, it may matter very much if the practice of having two texts is extended. Inevitably there is ground for misery in dispute resolution when there are two texts.

We have in the House, time after time, debate over things that must have seemed as simple as taonga to those who wrote them. I have been told, for example, that taonga does not include tūpara, or shotguns. There can hardly have been anything more of a treasure in 1840 than the guns that people had sacrificed so much to buy. We have been told that language is a taonga, yet in context one cannot see how one could give exclusive use and possession of a language, which is the context it appears in. So I believe that it is important for us to mark that it is not some kind of victory by the Opposition to get the texts regularised, but instead a worry for the future. The Minister has come back and given us texts that the Minister tells us are now the same. But that is still not reassurance.

I believe that this bill should have a provision that states what happens in the event a disagreement emerges over interpretation. The bill should not simply put two language texts without stating which one takes priority. It does not matter for these purposes whether it is an English text or a Māori text that takes priority, but one language is likely to evolve faster than the other. One language is likely to have more attention focused on interpretation than the other. For those who come to this in 20 or 30 years’ time, it would be sensible for the House to have a clause in here that states that one language is merely a convenience for those who do not read the other, and to say which text is the authoritative text.

I think it is poor drafting and poor practice by the Crown to come before this House and say: “Please pass something that we know from history, and from our own experience only a week or so ago, will be uncertain to those who read it in the distant future.” Languages do evolve. Understandings evolve. It may seem to the Government that sticking in long passages of Māori is a cute thing to do for the politics of it at the moment—or that sticking in long passages of English so that the English readers do not complain that there are long passages of Māori, is a cute thing to do—but the Government should not be doing that without telling us which will be authoritative, in view of the fact that it is not possible for exact translation. That is not achievable and we should know for the future which text would resolve dispute.

PITA PARAONE (NZ First): I rise for the New Zealand First Party and again reiterate the point that we are the only non-aligned political party in this House. In speaking to the preamble, I acknowledge the Minister in the chair, the Hon Mark Burton, for the course that has been taken in presenting this Supplementary Order Paper, given that the Government has tried to work the bill through this part of its process for a number of days now but it has been held up because of the concerns of members—and I think they are correct concerns—in terms of how the original bill was presented to the House. I want to say also that both the Māori and English versions of the preamble—rightly or wrongly—refer to the principles of the Treaty of Waitangi.

During the course of the earlier debate, ACT member Stephen Franks suggested that New Zealand First had come to some arrangement with the Government, given that our Supplementary Order Paper to be dealt with later on did not make reference to the deletion of references to the principles of the Treaty of Waitangi included in the preamble. I point out to that member for his information, and for the information of this Committee, that I am advised, quite correctly, that those clauses refer to the deed of settlement already signed between the Crown and Ngāti Awa, which is a document separate from this bill. We were led to believe that either the Speaker or the Chairperson would rule the Supplementary Order Paper out of order in that regard.

One of the earlier speakers made reference to his concern about the level of threshold for approval that has been accepted by the Office of Treaty Settlements with regard to this particular claim. I think that is a valid point, because I believe that the threshold for approval ought to be higher than that accepted by the Office of Treaty Settlements for this bill, and that there ought to be some consistency with other legislation. In that regard, I refer to Te Ture Whenua Maori Act, which requires, when an alienation is to proceed regarding Māori land, that 75 percent of listed owners have to give their approval. I believe that that is the type of consistency that the Office of Treaty Settlements, on behalf of the Crown, ought to consider when dealing with other claims.

During my time on my feet, I signal to this Committee that New Zealand First will certainly be pushing for the omission or deletion of references to the principles of the Treaty of Waitangi. Although they are not as liberally dispersed within this bill as they are in other legislation, we will certainly be debating that point.

MURRAY SMITH (United Future): United Future has not really spoken at all on this issue of the preamble and the problems with interpretation that have arisen, but I believe that this debate has been an important one and also an inevitable one. Although many concerns have been raised in the Chamber about the correct translation of English words into Māori, this debate is timely—as there is a rise in interest in te reo in New Zealand, as there is a greater use of te reo, and as it is accepted more broadly, we will face more and more of these problems. The difficulty that we have is always a difficulty in terms of how we translate one culture’s language and meaning into another culture’s language and meaning.

I welcome the rise in the acceptance and awareness of te reo. This morning I was at the Hui Tamata pōwhiri, and I found that speakers spoke on the marae without there being a translation into English. I wished I knew more te reo so that I could have understood what they were saying, particularly when they were obviously cracking jokes amongst each other, the meaning of which I was unaware of. I was grateful for John Tamihere being there and at least telling me a little bit about what was going on.

The increased confidence of Māori in terms of their own language and tikanga is important, and we ought to celebrate that. But we as a Parliament should know about the problems of not getting language translation correct. After all, we still have problems with our treaty dating back to 1840, in trying to work out the difference between tino rangatiratanga and kāwanatanga, and the conflicts there. We all know the problems we are having in terms of the conflict with and misunderstanding about that terminology. The question is—and it is a very real question that we need to address in Parliament—how do we actually resolve that? It is not easy to do it by a literal language approach, because then there are problems in terms of the language and what it can convey. I know, for example, that in Greek there are three words for love: agape, philia, and eros. If one chooses the wrong one, one term means something very, very different from the other. I understand that Eskimos have a multitude of terms for snow, because of their cultural context, whereas we have only one.

So the ability to transfer ideas from one language to another is not easy. Nor can we look at a broad translation, because that tends to be very subjective, and it changes over time as my friend Mr Franks has said. Even in English we find difficulty with courts interpreting Acts, and the language in Acts written in English can be interpreted differently from what Parliament intended the legislation to do. So even in English we have a problem with translating concepts specifically.

Mr Franks suggested that we should indicate, in these instances, which of the languages should predominate in the event of conflict. I have been thinking about that while I have been sitting here, and although for a Māori bill one could lean towards the idea that Māori should be the language that predominates, it seems to me that a clause like that of Mr Franks would be a good idea. But, given that most members of Parliament passing this legislation are English, we are forced at this stage to say, effectively, that English should predominate. It would be nice if that were not the case, but because we are the members of Parliament who have to make a decision about this bill and its contents—whether we as a Parliament will endorse those contents—the fact that the bill is in a language we understand, with concepts we understand, is a critical part of that process.

I do not think that we will resolve the issues until we, as a nation, are bilingual. I look forward to the day, which I guess is a generation or two hence, when we will not have these problems because we will all understand te reo as much as we understand English—to the point that when we read the te reo version we will know what it is saying and we will understand it, not only in terms of the words it has but in terms of the concepts it is trying to convey. In that situation, maybe we would not need an English version of the bill, at all; we would have enough knowledge in this Parliament, by a majority, simply to be able to understand the Māori version, and to be able to interpret it in accordance with Māori tikanga rather than English concepts. So I do not think we have come to the conclusion of this debate in terms of the general view; I think it is something we will have to address for a long time hence.

Hon GEORGINA TE HEUHEU (National): Two matters arise from the previous debate on this bill, which colleagues of mine have already raised. But I want to raise a couple of things in addition to their points, particularly because members on the other side of the Chamber were very scathing about the Opposition, and they tried to imply we were deliberately holding up the discussion.

I went to see Hirini Mead of Ngāti Awa a day later, because he had had little idea of what had been going on in the Chamber the night before. The first thing is that he had not seen or understood the impact of the issue I had raised in my point of order, which related to the absence of the words “Te Rūnanga” in the Māori version of the Supplementary Order Paper the Minister had introduced about 10 days ago when we last debated this legislation. Hirini Mead, of course, was in complete agreement with me, in the sense that there is a vast difference between the use of “Ngāti Awa” as an iwi and “Te Rūnanga o Ngāti Awa” as a body created by statute. The worry about that from the point of view of the Opposition is that although settlements should be distinctive to the particular tribe settling its claim, the reality is—as we know, and as my colleague Wayne Mapp said—that there will be some things that possibly will flow into subsequent settlements, and that legal rights flow from those things in legislation.

So the issue of being very, very careful about what we are doing in these pieces of legislation becomes even more paramount. This was highlighted by the fact that the Speaker chose to allow John Tamihere to provide a translation of the piece that was in dispute that night—the piece that my colleague Gerry Brownlee had asked be corrected. Of course, John Tamihere did what all members were capable of doing, which was to read the English translation from the preamble in the bill. Well, as I said, that was not the point because, as he found out—if he did not already know—one was not a correct version of the other, or it was not a literal translation of the other. So he merrily translated something that, in my view, was patently wrong, which was that the Māori text referred to “Ngāti Awa” only, and the English text referred to“Te Runanga o Ngati Awa”.

Pita Paraone: Why did he do that?

Hon GEORGINA TE HEUHEU: Who knows? Perhaps he wanted to show us his command of the Māori language. Well, that is fine, but members could have read that for themselves, quite happily. Indeed, they had read it, which is why the Opposition raised the issue. We wanted a proper translation of what the preamble was attempting to say. The Minister, of course, comes from my area at home. He may or may not be an honorary Ngāti Tūwharetoa—we will see whether he earns his stripes! But he knows very, very well that there is a vast difference between talking about Ngāti Tūwharetoa—the iwi—and the Ngāti Tūwharetoa Māori Trust Board. One is traditional and customary; the other is created by statute.

I explained that to Professor Mead the next day. He said it was something they had failed to pick up on, and that is fine. I feel for the Ngāti Awa people. They have been negotiating their settlement and waiting for this to come into legislation for 14 years or more now, so after such a long time it is understandable that something could be missed. But it is important, because we do not want things that are new concepts—particularly incorrect translations—legislated for in this settlement to be somehow used in subsequent settlements, or to in some way pre-empt the rangatiratanga of tribes still to follow and to negotiate their settlements.

There is also something that arises from the Tūwharetoa ki Kawerau bill that I think illustrates this point well, and I will be raising it with the Minister at some other stage.

The question was put that the amendments set out on Supplementary Order Paper 329 in the name of the Hon Mark Burton to the preamble be agreed to.

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

Ayes 111

New Zealand Labour 51; New Zealand National 27; New Zealand First 13; Green Party 9; United Future 8; Progressive 2; Māori Party 1.

Noes 7

ACT New Zealand 7.

Amendments agreed to.

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

Ayes 111

New Zealand Labour 51; New Zealand National 27; New Zealand First 13; Green Party 9; United Future 8; Progressive 2; Māori Party 1.

Noes 7

ACT New Zealand 7.

Preamble as amended agreed to.

Part 1 Acknowledgements and apology by the Crown to Ngāti Awa, and preliminary provisions

Dr WAYNE MAPP (National—North Shore): I wish to refer to three issues in this part. The first is the way the apology is written—in particular clause 8(3), which sets out the reason for the apology. In essence, clause 8(3) states: “The Crown acknowledges that: (a) Ngāti Awa as an iwi were not in rebellion and were unfairly labelled as ‘rebels’…”.

What concerns me about the sweeping nature of that statement is that quite clearly—and we can see this from the preamble and the tribunal report—there were large-scale movements, certainly, of many of the hapū of Ngāti Awa, culminating in a major battle in which many chiefs and sub-chiefs were killed. So it does rather beg the question that if so many hapū had risen up in arms—in this instance against Te Arawa, but also effectively against the Crown as Te Arawa were acting as agents of the Crown in that respect—then at what point is an iwi not in rebellion? If most of its parts were in rebellion, can the Crown now, 150 years later, say: “Oh, no, that’s not really the case. For the sake of convenience, it’s best to say that we acknowledge they were not.”?

I just wonder whether it is reasonable, when we are doing these settlements—and I am not disputing the settlement; I will come to that point directly—that, effectively, we try to rewrite history, as well. It seems to me that that is being done here in a significant way, because the next portion of this redress stems from the fact that the confiscations were inappropriate and excessive. It was noted in 1863 by the British Colonial Office itself that the New Zealand Settlements Act was open to abuse by the fact that it could be used to unfairly confiscate.

So there are two parts: firstly, were people in rebellion, justifying at least some degree of punishment? Secondly, was the level of punishment excessive, or is the Crown saying that there should have been no punishment at all? Is the Crown saying that nothing should have happened to the people who took up arms against Te Arawa, and indeed the Crown, and that the event should have been consequence-free? I can certainly understand the argument that the level of confiscations and the subsequent events of returning land to named individuals that then went up for sale was in itself an act of expropriation deserving of compensation. However, that is quite a different thing from, in a sense, rewriting our history.

We should at least be honest and recognise that there were large-scale wars, that the wars were against the Crown, and that some of the acts of the Crown were egregious. But did those acts warrant warfare of the largest scale in what, at that time, was the British Empire? So I think we need to be careful that for the sake of assuaging feelings in the 21st century we do not then attempt to fully rewrite our history. The events that took place were the events that took place. The actions of the Crown and the level of expropriation are perhaps separate issues deserving of recognition and compensation. In fact, in some parts the bill does that. That is the first point I raise as a general observation and comment.

My second point relates to the references throughout the apologies in clauses 8(3)(d) and (4)(g) to the principles of the Treaty of Waitangi—or, more accurately, described in the clauses as “the Treaty … and its principles”, as if they were two different things. I guess that that is the implication. We have the treaty that says one thing and means one thing, then, separate from the treaty, we have the principles, which actually are all a creation of the State-Owned Enterprises Act—the late insertion of section 9 into that Act—and the judicial creation that has occurred thereafter. National will support the New Zealand First Supplementary Order Paper to omit those references to the principles of the treaty. We will do so because reference to the principles has, I believe, caused confusion in this country in a variety of ways. Firstly, references have been inserted really without any proper consideration. As I said, they have their origin on a Supplementary Order Paper introduced in the Committee stage of the State-owned enterprises legislation. There was no opportunity for submissions or proper consideration by a select committee. The issue then went to the Court of Appeal for consideration in a special case involving the New Zealand Māori Council. The court seized the opportunity to provide a wide-ranging interpretation of those principles, and from there flows the concept of partnership and consultation.

The Government believes, at least at some level, that there is some form of constitutional partnership in this country. National does not agree with that approach, and that is why we will support New Zealand First’s amendments. We think that it has led the country into error and that we have an opportunity to correct it at this stage. The reason I say that the Government believes, at a certain level, in a constitutional partnership with Māori is that it includes references to the treaty, consultation, and special representation provisions through a whole range of legislation—education legislation, local government legislation, health legislation, and so on and so forth. We even had the rather odd situation of the Deputy Auditor-General having to have a knowledge of the principles of the treaty. It is simply a false way to govern the country. The founding value of any democratic country is that all people are treated equally under the law—that we all have equal democratic rights, that one does not subdivide one’s country by ethnicity and give one group one set of rights and another group another set of rights and try to construct the Government of one’s country on that basis.

I know that the Minister will say I am exaggerating but, in reality, over the last 15 years we have grown up a whole process and procedure of consultation, not just at an informal level by ministries but by embedding it in legislation. That has then led to special electoral rights, special committees, and so forth, which, in reality, give Māori special consultation rights. That is how the Government interprets the partnership principle. It is fundamentally wrong to establish such an enormous superstructure of constitutional theory on the basis of amendments on a Supplementary Order Paper inserted into legislation nearly 20 years ago, when the particular provision on that Supplementary Order Paper never received proper debate.

If we want to construct a constitution afresh and introduce something like reference to the treaty, then that ought to go through a proper, considered process. It did not then, and we have the opportunity now to correct it. If there is a need for reference to the treaty—and I acknowledge that in a number of cases that is appropriate; obviously in treaty settlements, by definition, it is appropriate—it should be to the terms of the treaty. That would then cause people to focus on what was undertaken in the treaty, on what we are compensating, and on whether there was a breach, for instance, of article 2. In short, were properties expropriated or were they not? That is a much more honest way of dealing with the framework that should be used for treaty settlements.

I want to close on this point. National is very firm on this issue. We believe, after nearly 20 years of reflection and examination of how the references to the treaty have insidiously developed the superstructure of partnership, that it is time to take a fresh look. If there is to be a reference to the treaty, it ought to be to the terms and undertakings of the treaty itself, because that is actually the basis on which we are undertaking this settlement process.

STEPHEN FRANKS (ACT): I am proud to have been in the Chamber this afternoon to hear that speech from Dr Mapp of the National Party. I think it was the kind of speech that the people of New Zealand were entitled to expect their representatives in this Parliament to make 20 years ago. It is interesting that there are virtually no press gallery members here, but that was an important speech. That speech stated, in a few minutes, the end of the conspiracy—or the cosy consensus—that has for so long existed between the two major parties not to debate the reality of an academic myth that was created some time ago. Dr Mapp effectively said that he has reservations about the apology in this bill, and he then went on to adopt what has been the ACT position for some time. I am not trying to score a cheap point here, but ACT has been describing the partnership as mythical and the principles as spurious for as long as I have been in Parliament.

Dr Mapp called for settlements to be justified on the basis of the actual treaty—the document that was actually signed—and what it might have meant to the people at the time, not what it has come to mean to a bunch of people looking for a replacement for religion 150 years later. It is interesting that Dr Mapp was as unequivocal as he was. He said that this apology reflects a view of New Zealand as being made up of two or more tribes that are negotiating with each other through their peak representatives and offering each other collective entitlements. I think it was enormously refreshing to hear a National Party member make a speech along those lines.

In this bill the Crown makes an apology and states in clause 10(8) that it: “… profoundly regrets its failure to acknowledge the mana and rangatiratanga of Ngāti Awa.”, yet still it makes no effort to state what rangatiratanga is. Why, in 2005, is this Government continuing to use a term that has led us only to explore our navels and, as one very well-respected expatriate New Zealander put it, to talk ourselves into a nervous breakdown? It is a word that is very capable of creating irreconcilably conflicting expectations. On the one hand people see rangatiratanga as being a species of self-government power little short of sovereignty, and on the other—the view that I think is the proper orthodox view, although it is not held widely by the intelligentsia of this country at the moment—as simply a good description of classical English property rights, in terms of the notion that within one’s own boundaries one is king of one’s own castle and lord of one’s own manor.

Here in this bill the Crown is repeating terms that are deliberately evasive. No one now knows exactly what they should mean. We have the Crown apologising unreservedly for having undermined “the social and traditional structures and autonomy” of some people who actually comprise part of the Crown, if the Crown is now the embodiment of our own self-government. The Government that is unreservedly apologising for undermining the social and traditional structures of those people is the same Government that is unreservedly attacking the traditional social structures of the majority. This Government takes pride in scoffing at the traditional religions of this country.

Hon David Benson-Pope: Rubbish!

STEPHEN FRANKS: Was Mr Benson-Pope there when his colleague Chris Carter described the Catholic Church in Hamilton as, I think, “a reservoir of anachronistic bigots”? That was the view he expressed. That is why the Government sticks in the throats of New Zealanders—[Interruption] Is Annette King deriding that? She is the same honourable Minister who has decided that we will no longer give health care on the basis of need but will give it on the basis of race. She is the honourable Minister who has decided, for votes, that it is even OK for New Zealanders to break what Shylock said, when he asked: “… do we not bleed?”.

Hon MARK BURTON (Minister in charge of Treaty of Waitangi Negotiations): Was that not amazing? We went from a debate, in which I may not have agreed with every word of Dr Mapp’s speech but I found it—I am in agreement in this one regard with Mr Franks—a considered, reasoned, and useful contribution for us to think about, to a bunch of slogan-slinging across the Chamber from Mr Franks. That is a sad reflection, but it perhaps explains well how the ACT party got to where it is in the polls.

I will make two quick responses. Firstly, I think it is important to note, in relation to the historical references Dr Mapp referred to, that we should remember the tribunal heard and considered extensive evidence. The conclusion was reached at the end of that process that the historical record showed the iwi was not, in effect, in rebellion. That was the conclusion reached. The Crown considered that conclusion. It took further advice from Crown Law, and in the end it agreed that, indeed, the iwi was not in rebellion. That was not a flippant or an ill-considered view. I guess history will always be revisited and debated, but I think it is important to put on the record of this Parliament that it was a considered conclusion and that it therefore forms a fundamental part of why the apology is phrased as it is.

Secondly, there are a multitude of reasons for the references to the principles of the Treaty of Waitangi. I will not indulge myself, and I am sure the Labour whips would not enjoy it if I did, but let me at least make one practical reference. Under the Treaty of Waitangi Act—[Interruption]—I say to Mr Franks, the tribunal is charged with making recommendations on plans relating to the practical application of the treaty, and determining whether certain matters are inconsistent with the principles of the treaty. Quite simply, therefore, in the interests of finality the Crown needs to refer to treaty principles in legislation and to ensure that all relevant claims are being settled. To fail to do so would simply be to leave the door open to reinvestigating claims relating to treaty principles.

Hon GEORGINA TE HEUHEU (National): It was probably timely for someone to point out, as the Minister did, that the phrase “the principles of the treaty”, which I acknowledge is now causing quite a lot of difficulty, was framed in the enabling legislation that set up the jurisdiction of the tribunal.

Dr Wayne Mapp: Labour legislation.

Hon GEORGINA TE HEUHEU: My colleague says it was Labour legislation, and of course he is quite right. I have wondered, as the term “the principles of the treaty” has come under such a lot of fire over the last few years, whether people are aware that that legislation is probably where it stemmed from. I noticed that a Sunday Star-Times columnist attributed it to my late father-in-law, indicating that he somehow invented the term “the principles of the treaty”. He did not, and he did not really have to.

Coming to Part 1, there is something I want to ask the Minister. Of course it is proper—particularly when Ngāti Awa have gone through the long process of taking their claim to the tribunal and having their history adjudicated on and recorded, and given that this is another tribe who were made landless and labelled “rebels”, “wrong people”, and so forth—that any such settlement cannot proceed unless there is an apology first. I know that some people find this difficult to believe, but the reality is that sometimes the apology is the most important thing, because it is a vindication of all the grievance and the hurt that tribes have felt over the last 140-odd years or more.

No doubt Ngāti Awa have also worked on the text of this part. Again, I hope someone has been through it with a fine-tooth comb and made sure that one text is a translation of the other. That leads me to ask the Minister about apologies in the three ancillary claims dealt with in a Supplementary Order Paper. Deeds of settlement were signed in respect of these three ancillary claims also. These were not completed when the select committee held its hearings, which I do not think sets a good precedent. There is a main claim, and in this case some ancillary claims are attached. I think that in future the Minister ought to make sure that all claims, whether they are a main claim or an ancillary claim, can be examined by the select committee.

I will stand to be corrected, but I do not think that these three ancillary claims were. If I had been able to do so I probably would have raised the issue in the select committee, but, as I was not, I raise the issue now. If a treaty settlement is being made, albeit it is called an ancillary settlement, nonetheless someone has presumably been done a wrong. There does not seem to be any apology to those three claimant groups, and I would like the Minister to explain why that is so. Maybe the groups did not ask for an apology. That seems a bit unusual to me. The claims might be termed ancillary, but for the families for whom the ancillary claims have been negotiated, the hurt is just as big as the hurt for the groups concerned in the overall claim; therefore, presumably, an apology should have followed in the ancillary claims as well.

On the other matter, I think the Government has been guilty during its time in power of bringing the term “the principles of the treaty” into disrepute. Some will say that the principles must be referred to in settlement legislation, but the Government has tried to insert them into health legislation and all sorts of other legislation where they really are not appropriate.

Hon MARK BURTON (Minister in charge of Treaty of Waitangi Negotiations): I will quickly respond, now that members have finished. The ancillary claims relate to specific sites that are returned to an identified group of owners. It is fair to say that the more general apology relates to the whole population of Ngāti Awa.

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

Ayes 111

New Zealand Labour 51; New Zealand National 27; New Zealand First 13; Green Party 9; United Future 8; Progressive 2; Māori Party 1.

Noes 6

ACT New Zealand 6.

Part 1 agreed to.

Part 2 Interpretation

The CHAIRPERSON (Ann Hartley): This debate includes debate on schedules 1 and 2.

Dr WAYNE MAPP (National—North Shore): Part 2 is the interpretation section and it includes a whole series of clauses that deal with interpretation. To be fair, most of those are quite unexceptional and I do not have any particular concerns with them. But I have a particular issue regarding the definition of “waterway”. I have been through this legislation over the last couple of weeks as it has been dealt with in the House and wondered why the definition of “waterway” refers to coastal waters, including harbours. It goes on to exclude canals for power generation and so forth but I will focus particularly on the reference to coastal waters.

I would like the Minister to explain the relationship between this legislation and the Foreshore and Seabed Act, as it is now. As I read the balance of the legislation, it is not entirely clear to me exactly what rights Ngāti Awa gain over coastal waters. One would think that it is quite an important issue, because the Crown is the owner of the foreshore and seabed. The Government has stated this in legislation. But both in the select committee on the foreshore and seabed legislation and in this Chamber, the Government has said that nothing in the foreshore and seabed legislation derogated from the power of the Crown to transfer fee simple to claimants as part of a treaty settlement. So there is a general proposition, with which New Zealanders of all races agree to a greater or lesser extent. The Crown, on behalf of all of us and irrespective of ethnicity, owns the foreshore and seabed.

There is a special exception set aside, essentially, for future transfers as part of treaty settlements. As I read this particular settlement bill, it does not seem to involve any transfers of fee simple of the foreshore and seabed. I have looked for that carefully. It is possible that I missed it because it is a complex bill, but on the face of it and based on my examination thus far, that does not seem to be the case. Yet there is a reference to waterways in the bill. Therefore, I presume, what is really being intended—because I might add that there is substantial reference to this in various schedules—is some form of granting governance or consultation rights over the foreshore and seabed.

This brings one back to the whole issue that I was raising before of the principles of the Treaty of Waitangi. I am sure members are well familiar with the treaty itself. To put it simply, article 1 of the treaty transfers sovereignty, article 2 protects property rights of various kinds, and article 3 provides for all Māori to have the rights of British subjects or, to put it in modern parlance, everyone has the right of citizenship.

None of that would therefore presuppose any form of partnership. I know that that term is used extensively and that it has many different meanings to many different people, but at least in some respects the Government seems to interpret “partnership” as authorising the Labour Government of 1999 to 2005 to have the right to set out in legislation special consultation provisions for Māori.

That is not just on things of immediate and direct interest to Māori, such as cultural and language issues, but on much wider terms. For instance, it even exists in copyright and patent legislation, as extraordinary as that might seem. There is a sense of shared governance, as opposed just to consultation. There is a major difference when the Government starts providing a form of shared governance of much of New Zealand’s public domain.

So therefore I would like to know what is intended in this bill. Is the inclusion of that definition of “waterways”, when read with the relevant schedules, intended to give Ngāti Awa governance over coastal waters?

Hon GEORGINA TE HEUHEU (National): I thought that my colleague Pita Paraone would take a call. I do not want him to think that I am taking over his issue, but there is an issue in Part 2 that I want to raise as a matter of some concern. I preface my remarks by acknowledging that every iwi has the right to conclude the settlement that it wants. That is its rangatiratanga. Iwi have the authority to do so. National is fully supportive of Ngāti Awa’s settlement and will support the passage of this legislation. The issue that I raise is this: whatever may be intended by an iwi, I would not want at some stage in any settlements that follow to have the Crown or the Government of the day suggest that just because a concept was recognised in one settlement, that concept would therefore become legitimate for all settlements.

I refer in particular to clause 13(3), which defines what “hapū of Ngāti Awa” means. I think that Pita Paraone of New Zealand First still has a Supplementary Order Paper in relation to it on the Table, but I will make these remarks. The clause sets out 20 hapū, which I take to be the traditional hapū, and it also includes, in paragraphs (a)(xx) and (xxi) of the definition, “Ngāti Awa ki Tamaki Makaurau” and “Ngāti Awa ki Pōneke”. Those hapū are what some of us may term urban conglomerates. The Ngāti Awa negotiators and settlors wish to have, and shall have, them included in the settlement. I flag to the Minister the fact that the tribes that have yet to negotiate settlements may or may not want to have included as hapū their urban groupings living in Wellington and Auckland. Other tribes will have a view that hapū descend by way of blood, and although they may acknowledge Ngāti Awa’s right to define the term in the way it sees fit, we would not want any future Government to try to suggest that future claimants and future settlements must also have a similar acknowledgment.

I would like the Minister in the chair, the Hon Mark Burton, to take a call. I would like to be given some reassurance on that matter, because it is a matter of great concern. Other tribes will have other ways, or will suggest other concepts or instruments, by which they wish to make sure that their beneficiaries who largely live in the cities come within the ambit of their settlement. That is their right, just as it is the right of Ngāti Awa to say who shall be the beneficiaries of this settlement and who shall be the hapū. I think Pita Paraone will touch upon the explanation that Ngāti Awa has given for this definition. There is a precedent for it. Ngāti Awa say, I understand, that it is already in some regulations issued under earlier legislation. Be that as it may, it is an important issue. It does highlight the need for the Minister to say categorically that the Government recognises that this settlement is for this iwi alone, and for no other iwi.

STEPHEN FRANKS (ACT): We have had the benefit, in the Committee stage on the Ngāti Awa Claims Settlement Bill, of explanations by the Minister in the chair, the Hon Mark Burton. I have appreciated his attempts to aid our understanding. In Part 2, “Interpretation”, the definition of the Ngāti Awa governance entity in clause 12 does not seem to explain anything. It is possible that there is a Supplementary Order Paper that covers that definition, and I am sure I will be quickly corrected if there is. But clause 12 simply states that the governance entity “(a) means a body that represents Ngāti Awa; and (b) is the appropriate body to receive the redress provided to the Ngāti Awa governance entity by this Act”.

What is completely mysterious to me is how this Parliament can propose to pass a bill that contains such a vague definition, when we well know that the mandate is a particular issue in this settlement. I would certainly be appreciative of the Minister explaining a little better what the Ngāti Awa governance entity is or will be, or explaining the tests the Government will use to determine whether it is “appropriate” and how the Government will test whether the governance entity represents Ngāti Awa. Recitals in the preamble to the bill refer to various procedures that were used to approve the settlement, and I wonder why the same procedures are not used to identify the governance entity. Or is this still an open question, and, if so, why? It is possible to take note of the fact that a private bill, the Te Runanga o Ngati Awa Bill, which would create an entity that looks like the body that should take these settlement proceeds, is also at the Committee stage. I have heard no explanation of why that bill is not a Government measure, or why it is not going through at precisely the same time as this bill. That bill has to be debated on members’ day, so we may end up with this bill and that bill being out of sync. I certainly would like to know why the definition of the governance entity is so vague.

I am also interested in having, and I had hoped that we might have had, a contribution from New Zealand First members—who drew this matter to our attention—as to the significance of using “Ngāti Awa ki Tamaki Makaurau” and “Ngāti Awa ki Poneke” in clause 13(3). I would imagine within a short time there may be an equally significant group of Ngāti Awa living in Sydney, so why do we not have that listed? Will the people who went via Pōneke to Sydney still qualify under that hapū, mentioned there? If the matter of qualification is entirely up to Ngāti Awa, why is paragraph (a) included in the definition of “Ngāti Awa governance entity” at all? If it is not up to Ngāti Awa, then the Committee ought to know what we are trying to state in these provisions. Are hapū affiliations passed by blood line? Or do they pass by residence? If it is by residence, why does clause 13(3) refer simply to Poneke and Auckland? Why not refer to Tauranga, or to other areas where people live who must, I assume, fall outside the other hapū but who would nevertheless trace their membership back to Ngāti Awa? It does not seem too much to ask that there be a brief explanation of just why that provision is in the bill.

I am aware that the two terms in subparagraphs (xx) and (xxi) in paragraph (a) under the definition of “hapū of Ngāti Awa” in clause 13(3) have been used in earlier legislation—I understand that they appear in regulations—but that does not explain why they are being used in this context, and it does not explain why we are bothering to include them if it is possible for Ngāti Awa to simply include people outside its rohe anyway through one of the other descent lines. How is that defined? Is it something that the electoral roll will also use? Do we find those hapū having entitlements to register through the electoral roll? I am just guessing that the sort of dispute that Ngāi Tahu has now got into over the entitlement to membership of its chief genealogist could be a very prominent form of dispute in future, as the direct lineage becomes more and more distant, and, perhaps, more debatable. I do hope that the Minister can give a succinct explanation of this matter—I know that he has officials on hand who can explain what it is about—so that the Committee does understand why it is of interest.

PITA PARAONE (NZ First): I want to talk to clauses 13 and 14 in Part 2. New Zealand First has put forward amendments to these clauses in Supplementary Order Paper 328. The first issue concerns subparagraphs (xx) and (xxi) in paragraph (a) under the definition of “hapū of Ngāti Awa” in clause 13(3), which refer to “Ngāti Awa ki Tamaki Makaurau” and “Ngāti Awa ki Poneke”. New Zealand First believes that the inclusion of these two entities as hapū, for the purposes of this bill, is actually outside the traditional concept of what establishes, or creates, a hapū. It is well known that the social structure of Māori is made up of whānau. A collection of whānau make up a hapū, and a collection of hapū go on to make up an iwi. In the case of these two hapū, we are advised that their members descend both from other hapū that are listed in the bill, and from the iwi ancestor of Ngāti Awa. Essentially, this Parliament is being asked to include them in this bill to ensure that those of Ngāti Awa living in Tāmaki Makaurau and Pōneke are assured access to the benefits that this settlement will bring to Ngāti Awa.

During the course of hearing the submissions on this bill, one submitter pointed out that every member registered to these two hapū held whakapapa links back to his or her traditional hapū within the Ngāti Awa tribal area, in the same way as other Ngāti Awa descendants who are resident elsewhere in the world. Notwithstanding the rationale for including these two hapū in the bill, it is important to remember that their inclusion in this bill will create new hapū. That creation can only be regarded as one of expediency and convenience.

Should Parliament be vested with the authority to create new hapū? What of other Ngāti Awa descendants living elsewhere? As the ACT member quite rightly pointed out, why should they be expected to connect with their hapū at home while those living in Tāmaki Makaurau and Pōneke have the convenience, and even the choice, to connect with either hapū back home?

New Zealand First acknowledges the intent of Ngāti Awa to have a governance structure that ensures that their people are easily able to access the benefits of their settlement with the Crown. We do not believe that what is proposed to address this is a matter for this House. We further believe that including these two groups in this bill will actually question or put to the test the intent of this bill, which is that this settlement is an enduring one.

Of further concern, we believe that to legislate for the creation of hapū, as proposed, will pose the question some time in the future: why was this allowed to happen with so many Māori MPs in Parliament at the time? Is it not strange that here we are, deliberating on a very important treaty settlement by a very well-known and acknowledged iwi of this nation, and there are no Māori members in the Government who are inside this Chamber.

Darren Hughes: I raise a point of order, Mr Chairperson. It is contrary to the Standing Orders for members to refer to the presence or absence of members. Clearly, if one includes a whole group of members, for example, saying that the Māori members of the Labour Party are not here, that casts aspersions on what all those members are doing, particularly at a time when the Hui Taumata is on, which the Government is saying clearly shows the successes of the Government in relation to Māori.

The CHAIRPERSON (H V Ross Robertson): Can I just refer members, please, to Speakers’ ruling 23/7. It is out of order to refer to the absence of members from the Chamber. It is a reality that all members of the House, at some stage or other, have to take leave from the Chamber to attend select committees and caucus committees, and for other natural reasons.

PITA PARAONE: I raise a point of order, Mr Chairperson. I am just seeking some clarification. Are you then saying that my comment is out of order?

The CHAIRPERSON (H V Ross Robertson): Yes.

PITA PARAONE: It is very good to see that—

Lindsay Tisch: I raise a point of order, Mr Chairperson.

The CHAIRPERSON (H V Ross Robertson): I have already ruled on the matter—Speaker’s ruling 23/7.

Lindsay Tisch: The member is not referring to an individual member. He is referring collectively to members of the Labour caucus who are not here. There is nothing wrong in doing that. He did not name any Māori Labour member who was not here, he just said that Labour Māori members were not here. That is a collective approach and that is, in my understanding, not out of order. The member is right in being able to acknowledge that point.

The CHAIRPERSON (H V Ross Robertson): Can I just say that the members can talk about not participating in a debate, but to go outside of that actually can lead to disorder, and what I am trying to do, as Chairman, is to ensure that order is maintained in the Chamber. I think the member has recognised that, and I invite him to continue his speech.

Dr Wayne Mapp: I raise a point of order, Mr Chairperson.

The CHAIRPERSON (H V Ross Robertson): I tell Dr Mapp that I have ruled.

Dr Wayne Mapp: I understand that you have ruled by reference to Speaker’s ruling 23/7, which states: “It is a convention that we do not make reference to the fact that a member is away or is not in the member’s seat.” Now I believe that that really refers to the singular—an identifiable person. To cover the interpretation you have just given would require that Speaker’s ruling to refer to “a member or members”. It does not have those additional words “or members”. I believe that it is actually a reasonable reference and within the Standing Orders and Speakers’ rulings to make reference to a generic group without identifying any one individual.

The CHAIRPERSON (H V Ross Robertson): Can I tell members that it is a longstanding convention in this Chamber that members should not refer to the absence from the Chamber of other members. But that does not stop them from criticising members for failing to vote, for failing to answer questions, or failing to take part in a debate. Again I would refer the member to Speaker’s ruling 23/7.

PITA PARAONE: I ask this question of members on the other side of the Chamber who have previously expressed a great interest in this bill: why are they not able to support this Supplementary Order Paper and stand up and explain to this Committee the issue regarding hapū and how this Parliament, and therefore the Crown, is given the authority to establish new hapū?

The Minister of Māori Affairs expressed reluctance to support the Supplementary Order Paper because he was advised that these hapū are already listed in the Māori Trust Boards Regulations of 1985, and is therefore reluctant to become involved in changing how Ngāti Awa is structured. I have looked at those regulations, and there is no mention of the word “hapū”. What is referred to is “specific section or division”, not the word “hapū”. I am advised that in the preamble to the legislation, reference is made to “hapū”. But the point is that in the substance of that legislation—

Hon MARK BURTON (Minister in charge of Treaty of Waitangi Negotiations): I want to pick up on one or two points that members have made. The member who has just resumed his seat, and the Hon Georgina Te Heuheu, both raised this issue of who is Ngāti Awa and hapū. Firstly, to reassure my Tuwharetoa colleague, this settlement deals with Ngāti Awa. In no way does it attempt to generalise—that would be improper. But for the same reason, it is fitting and appropriate that the definitions that have been arrived at, in the end, sit properly, both definitionally and finally, with Ngāti Awa themselves.

I would like to share with members something that Professor Mead supplied to us 10 days ago. I am happy to circulate the document, and I am sure he would be happy for me to do so. I found it helpful, and I think one or two other members might as well. He said in paragraphs on this subject, and I am paraphrasing: “Ngāti Awa has adopted a more open and inclusive attitude towards the establishment of hapū. More importantly, how Ngāti Awa determines its internal structures is a matter for itself to decide. There is no one classical iwi model to follow.”

He goes on to say: “In Ngāti Awa’s case we have recognised the dynamic nature of hapū. They grow, they split up, they become absorbed by others, they decline, they die, and some live again.” He concludes: “It is not an easy matter for a new hapū or a revived hapū to become accepted by the other hapū of Ngāti Awa. The major hurdle that each must pass is the unanimous acceptance of all the hapū of Ngāti Awa. The mandate comes from the combined hapū. The rūnanga merely ratifies the application. Having achieved that major requirement, each is bound to establish a marae-like base and be able to carry out normal functions. A hapū or rūnanga marae shows evidence of a clear move to meet the requirement of establishing a base. What Ngāti Awa has done as part of its reconstruction and development policies, is to rebuild itself so as to be in a better position to face the future.” I want to acknowledge that I think that is a positive and admirable way forward, as defined by Ngāti Awa for itself.

I shall just to move to Mr Franks’ view. He raised questions about Ngāti Awa governance. Indeed, the reference he seeks is on page 28 of the Minister’s Supplementary Order Paper, which we have already passed. There is reference at the bottom of the page to the Te Runanga o Ngati Awa Bill, which of course is a member’s bill. It is required to be so because it deals with the private good of Ngāti Awa and has no other general application. Therefore it is fitting and necessary that it be a member’s bill. We are seeking to manage, of course, and with Parliament’s cooperation I am sure we will, the orderly introduction and passing of the legislation in sequence so that we have an orderly transition and the passing of the legislation.

PITA PARAONE (NZ First): I just want to add that even if we were to accept the list of hapū, I must ask this question. The regulations to which the Minister of Māori Affairs referred me list the following hapū: Patuwai, Te Rangihouhiri, Te Tāwera-Umutahi, Pahipoto, Ngāti Tamawera, and Ngāti Awa ki Tāmaki. The question I ask of this Committee is where those particular hapū from those regulations are listed in this bill.

I also point out that reference is made in the bill to Te Rangihouhiri II. What happened to Te Rangihouhiri I? While some of my colleagues might think I say that in jest, we are talking about legislation, and once it is set in concrete the people who belonged to Te Rangihouhiri I may feel they have been alienated from this bill. The other question I ask along those lines is that the 1985 regulations refer to Te Tāwera-Umutahi, but we notice that in this bill Umutahi is not mentioned. Further, this bill has a new hapū called Te Kahupake. I am not, for one moment, questioning the existence of Te Kahupake, but I believe that there needs to be some consistency. If we are going to refer to earlier legislation, we have to ask where Te Kahupake came from.

I reiterate the point that I am not in any way questioning the desire of Ngāti Awa to address provision of a structure that will deliver to all of their beneficiaries. What I do ask is whether it is correct and proper that this Parliament should be asked to set in legislation a list of hapū that will set a—should I say—precedent for this Parliament to give legislative recognition to other hapū, and, dare I say it, other iwi in future. I just wanted to say that, in respect of those hapū.

Again, in talking to Supplementary Order Paper 328, which was submitted by New Zealand First, I refer to the principles of the Treaty of Waitangi. Mention was made by the Minister in the chair that reference to the principles was first mentioned in the Treaty of Waitangi Act of 1975. That suggested to me, and it has proven to be the case, that the task, the responsibility, of defining those words has been left to people outside of this Parliament. I believe that if we in this Parliament enact any legislation, we are the correct body to define what is meant in that legislation. New Zealand First asks that that reference be deleted from the bill, because of the vagueness of the words. I am not for one moment questioning the integrity of Ngāti Awa or its negotiation team, but none of us in this Parliament at this time can be assured that this matter of settlement may not be revisited because of the lack of definition and clarity of those words.

That term is very vague and has been included in legislation since 1986. Almost 30 pieces of legislation have those words included. One would think that those who did the deed of including those words in legislation would have ensured that there was a clear definition. But, no, who has been left with the responsibility of defining them? The task has fallen to others outside of this Parliament, who have taken an increasingly activist, liberal, and broad-licence approach. Despite the passage of almost 20 years, the words that I seek to have removed from this bill remain largely undefined and ambiguous. Because of that, those words have become a source of ongoing litigation regarding their relevance and meaning. Those who have substantially benefited from that are those associated with the legal process. Those words are without a clear, tangible benefit for New Zealanders.

JUDY TURNER (Deputy Leader—United Future): I rise on behalf of United Future to take a very brief call on this part, mostly to say that the concerns expressed by New Zealand First regarding the inclusion of particular hapū could be settled if one flicked through the bill to the definition of Ngāti Awa, which describes very clearly the overall body, the group that is the umbrella, for the hapū. The fact that Ngāti Awa chooses to understand the groups that fall under that umbrella in a developing way does not propose—in my reading of this measure—any danger to the agreement, in that the agreement is with Ngāti Awa, not with particular hapū. My understanding is that that is how Ngāti Awa sees itself—its organisation—and how the people of Ngāti Awa see themselves.

Pita Paraone: It doesn’t need to come to this Parliament to have it endorsed. That’s the issue.

JUDY TURNER: OK, the concern the member has is that Ngāti Awa chooses to recognise its structure in this Parliament. He considers that to be unnecessary.

Pita Paraone: No, the Government has chosen to recognise it.

JUDY TURNER: The Government has chosen to recognise what Ngāti Awa has presented before it as to the way Ngāti Awa sees itself, and I think that is a perfectly acceptable role for the Crown to take. Because Ngāti Awa considered it to be necessary, the Government has respected that opinion and included that definition as part of what was considered and put before us in this bill.

The point was made by the National member Georgina te Heuheu that this is peculiar to that particular iwi, and that it does not necessarily set up a pattern, a precedent, for other settlements with other iwi. That is a perfectly acceptable point to make, and I think that she received assurances from the Minister in the chair at the time, the Hon Mark Burton, that that was certainly the case. So I think it is a matter of trusting Ngāti Awa in this matter and saying that this definition is peculiar to this particular settlement. We should congratulate the iwi on looking to the interests of its people collectively and looking at the best structure by which it can then disperse the resources that will come to it.

Dr WAYNE MAPP (National—North Shore): I would like to make a brief response initially to the member who has just taken a call. We are legislators in this Parliament. We are not here to simply endorse matters that, in essence, private bodies put before us. That is exactly the point Mr Paraone was making, and it seems that United Future has not understood the issue at hand, as indeed it does not understand so many other issues.

I have specifically taken a call to talk further on the issue of the principles of the treaty. Although I believe that this has led to serious problems in this country, it is certainly true that the 1975 legislation that established the tribunal referred to the principles of the treaty. That, of course, is not a reason why we have to perpetuate the error some 30 years later, particularly given the way the Court of Appeal dealt with it as a result of the State-Owned Enterprises Act and given the inclusion of that reference by means of a last-minute Supplementary Order Paper that was never debated in this Parliament properly. We have built a whole superstructure, a constitutional edifice, on that basis. That, in itself, should tell members that we are in error and that we need to take the opportunity, as representatives of the people, to correct that error.

Some 18 months ago I wrote an article for the New Zealand Law Journal. The focus of that article was on why the reference to the principles of the Treaty of Waitangi was wrong, and why we should instead refer to the terms of the treaty. I referred in my previous speech to the core elements of the treaty: article 1, the transfer of sovereignty; article 2, the protection of property rights and taonga; and article 3, the establishment of the rights of British or New Zealand citizens. The treaty fits within the context of modern democratic values. It does not sit outside those principles, and that is something that this Government fails to realise. In a democracy each citizen is treated as having equal rights. That is the foundation stone of all modern democratic States. We all have one vote. We all have the right to participate equally in our Government; no one has any more rights than anyone else to participate in our Government. We are treated equally before the courts. That is the modern democratic theory, and all modern societies subscribe to it. We have seen in Iraq that irrespective of people’s views about the origins of their vote, nevertheless when people had the opportunity to vote as citizens they took that opportunity. That is why when we look at the treaty we have to interpret it within the context of those democratic values.

I believe that this Government has not understood those first principles, because if it did understand them it would not be inserting throughout legislation, and general legislation in particular—health legislation, local government legislation, and educational legislation—reference to the principles of the treaty, and, more particularly, to the establishment of separate committees that give some citizens more rights in our Government than other citizens. That is the fundamental flaw in the Government’s approach. We are specifically talking about that situation in terms of general legislation, and in general legislation we all have equal rights. The Government, instead, has actually divided New Zealanders against one another. I appreciate that that is not the Government’s intent, but that is the outcome. Surely the Government should listen to the heartfelt concerns of New Zealanders of all races and reverse its course on that. In fact, Mr Mallard has done nothing.

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

Hon GEORGINA TE HEUHEU (National): The issues raised by both Dr Mapp and Pita Paraone are serious, and we have already commented on them. I want to make a further comment on the issue of the hapū. Dr Mapp is absolutely right; we are legislators. I think Judy Turner has totally lost sight of that, as United Future sometimes does with regard to these settlements. There is no intention at all for any member of this Parliament to be disrespectful to Ngāti Awa, but there is every desire to make sure that this Committee understands very clearly what it does when it starts to put into legislation certain concepts that, for some iwi at least, will be contentious. On the issue of adding in urban groups and now calling them hapū from here on in, although that may be acceptable for Ngāti Awa, it will not be acceptable for other tribes that are still to settle. I think it behoves members who do not quite understand that issue to think about it, because every one of the 120 MPs in this Parliament will be here when that issue is passed into law.

Stephen Franks: Which way should I vote—yes or no?

Hon GEORGINA TE HEUHEU: National will probably support the Supplementary Order Paper that Pita Paraone has laid on the Table. I will leave that to the whip to do. We are deeply concerned that this Government is taking on the notion, however well intentioned, that somehow urban groups fall within the meaning of the term “hapū” in its traditional form. I think Stephen Franks was probably quite right to ask about Ngāti Awa ki Sydney. Maybe the numbers of Ngāti Awa in Sydney are not great at this point, but we are a very mobile people and in time our numbers will be spread throughout the world.

In relation to the principles of the Treaty of Waitangi, I was on the tribunal in its earlier days when we were faced with interpreting that phrase. As I said earlier, I rather think the phrase has been brought into disrepute by this Government trying to include it in general legislation. Again, I say members need to think quite clearly about the three parts of the treaty, the third part being that which gives Māori the same rights as British subjects. That is where the reference to general legislation applies. The insertion of the phrase “the principles of the Treaty of Waitangi” does not belong there. I suppose over the last 2 years the Government has backtracked on inserting it, but, certainly, in its first 2 years in power it was trying to—as I think I said then—poke the principles of the Treaty of Waitangi into every bit of legislation that moved. That was wrong, and it is no wonder that New Zealanders started to get upset.

In any event, this bill will pass this time. But perhaps the Government ought to give some serious consideration to the issue of the principles of the treaty, and also to the issue of urban communities from here on in being classed as hapū.

RUSSELL FAIRBROTHER (Labour—Napier): I move, That the question be now put.

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

The CHAIRPERSON (H V Ross Robertson): I refer members to Speaker’s ruling 61/5 given by Speaker Kidd, which states that it is highly disorderly to interject when votes are being taken. It can actually be seen as intimidation and could ultimately lead to a breach of privilege, as outlined in Standing Order 85(1). I ask for silence whilst votes are being taken.

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 13; ACT New Zealand 7.

Motion agreed to.

The question was put that the amendment set out on Supplementary Order Paper 328 in the name of Pita Paraone to clause 13 be agreed to.

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

The CHAIRPERSON (H V Ross Robertson): I refer the member to Speaker’s ruling 61/2 from Speaker Hunt, which states that no comment at all is allowed while a vote is being taken.

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

Ayes 47

New Zealand National 27; New Zealand First 13; ACT New Zealand 7.

Noes 71

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

Amendment not agreed to.

The question was put that the amendment set out on Supplementary Order Paper 328 in the name of Pita Paraone to clause 14 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 13; ACT New Zealand 7.

Noes 71

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

Amendment not agreed to.

The question was put that the amendment set out on Supplementary Order Paper 329 in the name of the Hon Mark Burton to Part 2 be agreed to.

Amendment agreed to.

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

Ayes 98

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

Noes 20

New Zealand First 13; ACT New Zealand 7.

Part 2 as amended agreed to.

Part 3 Settlement of historical claims and miscellaneous matters

Dr WAYNE MAPP (National—North Shore): The importance of this part is that clause 15 states that the settlement of the historical claim is full and final. I know that that is the overall intent of the entire settlement process, and, indeed, National is determined that this country will complete the settlement process. Part and parcel of that is, obviously, that settlements are full and final. It is the same form of acknowledgment seen in the settlements that the National Government was involved in.

The Māori Affairs Committee, in its commentary on the bill, noted that only 40 percent of eligible iwi members voted on the deed of settlement, and, of that number, 78 percent supported the settlement offer. That is actually less than 40 percent. Therefore, barely a third of eligible iwi members supported the settlement offer. The select committee noted in particular—and I bring this to the attention of the Committee—“The committee is concerned however that numbers participating in the ratification process were low. This concern has been expressed previously in regards to other Treaty claims settlement legislation, as it may ultimately affect the durability of settlements.”

The problem is that this rate of participation is significantly lower than in other substantial settlements. Although we are legislating that the settlement is full and final—and National will be voting, as will the Government, that it is—can we be confident that maybe 50 years from now the members of the iwi at that stage will not be coming to the Government and saying that there was not sufficient participation to bind subsequent generations? What level of assurance can the Government give us that the process that was entered into—this provision—has sufficient integrity to bind members of future Governments and, more particularly, claimants?

The Government will say there is no ultimate guarantee, and that is correct, but this is a very serious issue. The select committee has specifically drawn to the Government’s attention the need to increase the level of participation. It is not good enough to say, as previous Government speakers have said, that those people had the opportunity to participate. Special care has to be taken, because these settlements are intended to be full and final not just for 50 years but literally forever. As a nation we are not intending to revisit these issues again, because the process that has been gone through in this generation is intended to be sufficiently deep and wide ranging so as to bind not just this generation of claimants within Ngāti Awa, and the Crown, but all future generations. It is not like the settlements of the 1940s, which we have acknowledged today were inadequate. Essentially, they were imposed settlements. These settlements are supposed to be different. They are supposed to be reached by agreement—not imposed—and therefore enduring.

So I ask the Minister in the chair, the Hon Damien O’Connor, to take a call and set out what strategies the Government has in place for future settlements. Obviously, they cannot be done for this settlement, because the events have occurred, but we do need a much deeper process of participation to give assurance to New Zealanders that the process of settlements we are currently going through closes the book forever—not just for one generation, not just for two generations, but literally forever.

As we develop as a nation it is important that we find the things that bind us together rather than look at the seeping wounds that divide us. Ensuring the integrity of the process will be part of that search.

JIM PETERS (NZ First): In speaking on Part 3, the issues that have just been traversed in Part 2 are, again, of importance. Although Part 3 starts with a grand claim that this is the final settlement, in actual fact the matters we have just traversed do impact upon this provision, particularly with regard to hapū, and particularly with regard to the principles of the Treaty of Waitangi. I do not believe that Parliament fully understands these issues, and certainly not the Government of the day, which has chosen to debate these issues in the Committee without any informed mind and without any Māori voice, whatsoever. I recall that this was so in the first reading debate when there was not even the courtesy of mentioning to Māori members when this very important matter, so far as Ngāti Awa was concerned, was going to be the subject of the House’s thinking and debate.

The issue before us again is, first, that the principles of the Treaty of Waitangi are vague and undefined, and as Dr Mapp has already stated, subject to incorrect interpretation from 1987 onwards, based upon a slip by the judge of the day, amplified by misdirection by the then Labour Government, worked through the 1990s by the then National Government, and now we arrive at the situation whereby that omission, which Parliament has just declined to rectify, has implications with regard to the supposed final settlement of Ngāti Awa. Those undefined principles are the seed of potential problems in the future. They are not defined in the bill. There is no clarity or expression as to what they mean, and that gives an opportunity for others to raise matters in the future.

Let us also look at the matter of the hapū, because a strange distinction has been made by this Parliament. I say if Ākarana and Pōneke, why not give all due regard to Brisbane, Sydney, or other places? The fact is that in Part 2 the Committee sought to give formal definition to a departure and a landmark with regard to Māori, and that will have a long-term impact, not just upon Ngāti Awa in the matter before us but upon other tribal groups as well.

So I want to raise again the fact that only a Labour-Progressive Government—which is not mindful of these matters, and which in this Chamber has not had the benefit of informed advice from its Māori members during the course of this debate—could arrive at a conclusion in Part 3 that leaves not a final and lasting settlement but the ability for these issues to be revisited again and again. If that is not on the matter of the principles of the Treaty of Waitangi, which is our belief, it is certainly with regard to the hapū definition that this Parliament has sought to endorse. Therefore, on behalf of New Zealand First, I say that that is a very important matter that the Labour-Progressive Government ought to have realised is an omission.

Last of all, I say that that in no way extinguishes this fact: we are not in any way, as my colleague has already mentioned, casting a slur on any matters with regard to Ngāti Awa. We believe that those matters belong with them, and that this Parliament has done Māoridom a disservice in attempting to legislate for that strange departure and omission.

STEPHEN FRANKS (ACT): I rise for the ACT party to speak on Part 3 of the Ngāti Awa Claims Settlement Bill. In relation to the part we are talking about, concern has been expressed about this matter going on forever. I think that concern is very properly raised when the bill itself has a clause in it that excludes the rule against perpetuities.

That rule was developed out of centuries of English experience of how unfortunate it is to have assets and land tied up for generations. If one has very long-term trusts, over time it is very difficult for the land not to fall into some kind of decay. The original purpose of the settlement has long passed, the people who knew what it was about have long gone, and the values that drove them and their interests have become redundant or anachronistic. So the rule against perpetuities was a rule developed by those old English lawyers to try to make sure we did not have the embarrassment of property that could hardly be used, or was useless, at the same time as putative beneficiaries, who should have been getting a benefit, were living in poverty.

Yet each of these settlement bills is setting up rather vague entities. Each one is setting up very, very curious rights on the part of those entities, and then is excluding the rule against perpetuities, so that those things go on forever. I am not sure whether that has ever been questioned in this Parliament before, but as I look at the bill and listen to, for the first time in my experience here, a substantial debate on a settlement bill—a debate not caused just by ACT saying: “Hey, the emperor has got no clothes.”, but a debate joined by New Zealand First and, very substantially and with excellent contributions, by the Hon Georgina te Heuheu and Dr Wayne Mapp—I share the concern just expressed by New Zealand First that this bill is not a full and final settlement, and that in its very terms it is contemplating future grounds for grievance. I think it will be used by another generation to show how careless the Crown still was of Māori interests, in that we lightly set them off on a route with governance entities of a fragility that was predictable, given long experience, and with exclusion of the rule against perpetuities, so that they could last forever.

What is being set up in this legislation to last forever? As far as I can see, it is a document entered into to give effect to the Ngāti Awa deed of settlement. Well, that includes these protocols, perhaps; it includes these declarations of interest, which are called “deeds of recognition”. On the other hand, a deed of recognition, which one would think was pretty long-term and permanent, is expressed later on as being meant to die when the Minister changes—so it looks as ephemeral as a bubble. I am at a loss to understand why there is so much concern to exclude the rule against perpetuities, while at the same time there is created the legislative equivalent of beads and bangles—things that could be gone and lost as soon as they are created.

In fact, the deeds of recognition and the protocols can be dispensed with tomorrow, if a Government Minister decides to do that. The legislation does say that there must be consultation. So what is the point of, then, and what kind, of documents are contemplated by, clause 19, which states that the rule against perpetuities is excluded? The Minister might be able to explain. The substance of the bill, or its next part, contemplates things that appear as if they are rights, and look to be redress, but are in fact very insubstantial indeed.

I am also puzzled about the contemplated role of the Treaty of Waitangi tribunal.

Hon GEORGINA TE HEUHEU (National): In relation to Part 3 there are probably two matters I want to raise. The first is in relation to subsection (24) of section 6 of the Treaty of Waitangi Act, as inserted by clause 16: “Subsection 23 does not exclude the jurisdiction of the Tribunal in respect of the interpretation or implementation of the Ngāti Awa deed of settlement, the ancillary deeds of settlement, or the Ngāti Awa Claims Settlement Act 2004.” I wonder whether that provision addresses the issue raised by Stephen Franks earlier when we were having a discussion about the English translation of the preamble vis-à-vis the Māori translation, and who, if there were some differences raised at some stage in the future over those matters, would adjudicate. I think that was the nub of the issue raised. Well, subsection (23) talks about the tribunal doing that. I am not sure whether—I can see that Stephen Franks is pulling a face.

Stephen Franks: It should be the Māori Land Court.

Hon GEORGINA TE HEUHEU: So there you go! I raise that issue, because this is probably the first time in the settlements process that the issue of what the best translation is has come to the fore in such a significant way. I suggest that the Minister in charge of Treaty of Waitangi Negotiations needs to pay some attention to the issue of what happens if there is some difference raised. Just as we have battled over the English and Māori translations of the treaty, there is always room for a similar issue to arise in the future over the translations of the preamble.

The other matter is to pick up on the issue that my colleague Dr Mapp raised, which is about the numbers who vote, who ratify the deeds of settlement, and, indeed, who vote on the governance entities. To tell the truth, National is extremely worried by the attitude of the Office of Treaty Settlements. When asked why we should be satisfied with low turn-outs, that office’s answer basically was that that was the model that had been set, that everyone had followed that model, and that it was OK. Those are not the exact words, but that is the gist of the office’s answer. But National says that, particularly in relation to the centre of the North Island, with many tribes claiming parts of those areas, we now have a situation where there are myriad cross-claims. There are overlapping claims, and Ngāti Awa is the first iwi of that whole group of iwi with claims that criss-cross to come through.

I do not think that that issue had quite the same potency in previous settlements. I would ask the Minister to consider taking a call to tell us whether, following the select committee’s comments on the issue of ratification, any work is being done to see whether greater ratification might be required in the situation where there are all these overlapping claims and where, unfortunately, some claimants are still way back in the queue. They are watching intently as other settlements are concluded ahead of theirs, and they start to wonder how their claims—often, overlapping claims—will be dealt with and where they will end up.

What went on and was a model 10 years ago, albeit put forward by the National Government, was the best framework that was developed at the time. All these frameworks, particularly where we are dealing with complicated issues—and this framework in particular—ought to be reviewed. The select committee has been raising that issue pretty constantly now for the last 2, 3, or 4 years—in fact, ever since the Labour-Progressive Government came to power, funnily. The Opposition has been raising that issue of mandate and of whether any work has been done around it.

STEPHEN FRANKS (ACT): This part of the bill is relatively small. It appears immediately after some long recitals of pretty contentious rewritings of history, and it then goes on to define and include the provisions that members are considering, as to how long they will last. Mr Mapp, and Mr Pita Paraone of New Zealand First, raised in this connection whether this part contemplates these deals lasting. It does not appear that the Government itself expects them to last.

When we look at the arrangements that are contemplated and the documents that are to be entered into, and that have been protected, on the basis of this bill—I mention clause 19, the protocols, and so forth—all that is required is for the Environment Court, the Historic Places Trust, or whoever else has to take account of them, to have regard to them, to have particular regard to them, or to be consulted on the various formulations. That does not seem like a very solid kind of obligation.

Plainly, as well as this, the settlement will have a substantial sum of money—one imagines it will; they always do. I do not think that this document tells us what the amount of money is. Instead, it refers separately to the deed of settlement, which is not itself set out in the bill. So I imagine that the amount is set out in the deed. But I would like the Minister to tell us, or just remind us, what the amounts are under the Ngāti Awa deed and the ancillary deeds, because this part states that they will be a full and final settlement of historical claims.

It is not easy to know why they will be a full and final settlement of historical claims. A clean break principle is usually considered desirable in nearly all disputes. That is the principle that we eventually introduced to underlie our family law—the clean break principle. But this part provides for removing memorials on land, and provides for the Waitangi Tribunal to continue to have jurisdiction to interpret the deed of settlement.

If this is just a contract, why would it not be the Māori Land Court? The Hon Georgina te Heuheu raised the question of whether the Government really considers that the tribunal will be around in 50 years’ time, because it has made those documents endless. The perpetuities period used to be effectively 21 years plus a life—a life in being. As a lawyer, one could convert that to a crude assumption that it is intended to go for around 80 or 90 years. Will there really be a Waitangi Tribunal still adjudicating, in 80 or 90 years, between Māori and Pākehā, or between Māori and the Crown, as if Māori were not part of the Crown—as if Māori were a separate tribe from the rest of New Zealand? Is that what the Government is considering, by expressly telling us that the Waitangi Tribunal will deal on contractual disputes under this settlement? Is the Government telling us that the rule against perpetuities does not apply, so that they can last at least 90 years?

What sort of message is the Crown trying to send, in putting into this small part provisions that tell us that the Government does not expect the country to be able to put an end to the grievance industry? Because that is what the legislation is saying. In clause 16, section 6 of the Treaty of Waitangi Act is expressly amended to exclude the tribunal’s jurisdiction in respect of the historical claims, but to preserve the jurisdiction in respect of the interpretation and implementation of the Ngāti Awa deed of settlement and the ancillary deeds of settlement.

I think the Minister ought to tell us just what persuades him that this will be the end, particularly when we know that Ngāti Awa did not give this settlement an overwhelming mandate. Presumably there are Ngāti Awa who argued against accepting it, who will come back and say: “Deal’s off. We didn’t approve it, it wasn’t for us, and it’s defective anyway.”

Hon GEORGINA TE HEUHEU (National): The Minister in charge of Treaty of Waitangi Negotiations has returned to the chair, and I just wonder whether he heard the issue that I raised earlier. It was in relation to the ongoing concerns that the Māori Affairs Committee is now raising in regard to ratification. I am very much aware that it was a National Government that basically developed the model, the framework, for settlements that, by and large, this Government is following. So this is a genuine expression of concern, because we see it as providing an opportunity. If the ratification is considered low, we do see it as providing an opportunity at some time in the future for some people of Ngāti Awa descent to come back and basically say that this settlement was not their settlement.

We hope that never happens. We hope that this Parliament will pass settlement legislation that will see an iwi on its way, developing some of its human capital and its economic capital, and all will be well. But that may not be the case, and I would like the Minister to bear that thought in mind. The Māori Affairs Committee has been told by the Office of Treaty Settlements that the ratification numbers are in line with previous settlements and, indeed, they are higher than some of the previous settlements. We were told, in relation to a recent settlement that is still to come back from the committee, that Tainui, for instance, had a much lower participation rate for mandating the settlement than we have now.

That may be the case, I say to the Minister, but the issue is this. As the Minister well knows, the central North Island is loaded with claims. There are a number of tribes claiming into the same areas. I do not think that was necessarily a feature or characteristic that stood out when, say, Tainui settled its claim. The unfortunate thing about the way all this has proceeded is that we now have the claim of one of those tribes on the table here, ready for the legislation to go through, and there are other tribes whose claims, they say, overlap, who are still way down in the pecking order. Therefore they are deeply worried about what will be left—no matter what assurances the Office of Treaty Settlements gives now—when their claims come to be settled.

As I said, I think there is a feature present now, particularly in relation to the central North Island claims, that was not as significant—if of any moment—in relation to, say, Tainui, that I think the Minister needs to give some thought to. There are cross-claims and overlapping claims. Although some land can be left aside to take care of those other claims, that may or may not be adequate in the end. If this Minister can get the whole of the central North Island claims process moving soon, so that everybody, hopefully, is moving at once, which might help to minimise this issue of one tribe feeling worried about what is going to be left for them, then that may be the answer. I know that there is great hope that the Minister may be able to do that.

It is a real issue. As I said, 40 percent of those eligible to vote is not a clear mandate, given that there are two or three other tribes whose settlements impinge on this particular one. That will get even more so as we move along. The issue is the same regarding Tūwharetoa ki Kawerau, on which the select committee will shortly report back to the House. No doubt the issue will arise again in some of the settlements following. There is a different environment in the settlement of these claims to what there was previously. The Minister needs to give some thought to it.

Hon MARK BURTON (Minister in charge of Treaty of Waitangi Negotiations): I thank the member who has just resumed her seat. I want to respond briefly. As she said, this is a different time and place. It is worth noting, though, that the participation rates in the vote were identical—40 percent. The acceptance rate for Ngāti Awa was 87 percent, as opposed to Tainui at 65 percent. In real terms, this bill has a greater mandate than the Tainui bill received. But I equally accept from the member that we should always be looking for higher voter participation rates. I give some assurance to the Committee that that level of 40 percent should not be taken lightly. As we see in general elections and local body elections, we do not compel people to vote, but we must ensure that every reasonable opportunity and encouragement have been given for people to do so. Oft times it is a fact of human nature that when we are happy with something we tend not to go out of our way to vote or do what we need to do.

This issue is something that I personally take very seriously as the new Minister in charge of Treaty of Waitangi Negotiations, and I know that the Office of Treaty Settlements does. Each case will be looked at seriously and carefully.

To go to the matter that Mr Franks raised about the bill not including the detail of the quantum settlement, the provisions are not required. The settlement of the quantum is an example of the contractual arrangements that come out of the settlement. But, obviously, it is a fair inquiry and a matter of interest to the members of the Committee, so, to put it on the record, the Ngāti Awa quantum amount is $42.39 million and the ancillary claims in total—the three claims combined—have a value of $410,000.

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

Ayes 98

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

Noes 20

New Zealand First 13; ACT New Zealand 7.

Part 3 agreed to.

Part 4 Cultural redress

The CHAIRPERSON (H V Ross Robertson): Members should note that this part includes debate on schedules 3 to 15.

Dr WAYNE MAPP (National—North Shore): This is quite a long and involved part. My first speech will deal with the general propositions that this part raises.

I have been comparing this legislation with the Ngāi Tahu legislation and the Te Uri o Hau legislation, and there is a very particular reason why I have done that. This part is entitled “Cultural redress”. It deals with a whole lot of technical issues about consultation, camping rights, property rights, and so forth, but it is actually headed “Cultural redress”. Clause 5(5), in the preliminary provisions in Part 1, states: “Part 4 deals with cultural redress …”, and is: “(c) an acknowledgement by the Crown of the statements made by Ngāti Awa of their cultural, spiritual, historical, and traditional association …”. In contrast, the Ngāi Tahu settlement, which was also a very complex and involved settlement, referred to economic, social, and cultural redress. Nowhere is there a part headed “Cultural redress” in the Ngāi Tahu legislation. No reference is made in the legislation to spiritual connections.

Why is that important? It is important because our legislation—our country, actually—is founded on the basis that, as far as possible, we separate people’s spiritual connections and beliefs from the public arena. We treat those matters as essentially private matters. They are not necessarily individual private matters; they certainly could be related to a group as a whole or, indeed, to an ethnic group as a whole. What we do not do, however, as a general proposition, is try to incorporate spiritual beliefs into legislation. There is a very good reason for that. At heart we are a secular society. That does not mean to say that we are a society where no one has any beliefs in the spiritual world. Quite clearly, people do, and those beliefs are very broad ranging. They are not connected just with Māori; they are connected with all sorts of cultures in our community. That is part of the basis of our community. But, nevertheless, at quite a principled level, we have said that we separate people’s and groups’ spiritual beliefs from legislation. Hence the concept that we are a secular society. The Prime Minister takes that to the point whereby, for instance, she does not have grace said at State luncheons or State dinners. That is a deliberate separation made by her. It has offended people, but at least I can see where she is coming from.

We should not be recognising spiritual beliefs in legislation. We should not be entitling whole parts of legislation “Cultural redress”. That is not a criticism of individual points within that, but rather of the idea that the Government is importing into it. I believe that it is seriously blurring the idea that New Zealand is a secular society. The damage is this: it essentially elevates one group’s cultural and spiritual beliefs beyond those of all other groups. It gives them special legislative protection.

I do not believe that intention was at the heart of the Treaty of Waitangi. I do not believe that when the treaty was established, there was any intent upon the Crown to provide for the protection of spiritual beliefs per se. Certainly at that stage there was a great debate in the British community. In the British Parliament and in British society in 1840 there was a hugely important debate about trying to separate people’s individual and group beliefs from the body politic, from the legislative arena. That was a hugely important debate. It was part and parcel of the development of modern democracies. And here we have the Government, perhaps somewhat unintentionally—I will even acknowledge that—reimporting such matters into legislation.

We are signalling to the Government that it is time to stop doing that. In the 21st century, rather than uniting New Zealanders, the inclusion of those kinds of phrases is actually dividing New Zealanders, for the very same reasons that such matters divided Europe for 200 years, in the great debates that occurred during the Renaissance and the period that was known as the Enlightenment. It was known as that because it was all about establishing the values of individual liberty, democracy, and the separation of Church and State—separating private belief from public governance. What the Government has done that makes this settlement different from the Ngāi Tahu settlement is to reimport those matters back into New Zealand law. I would like to think that in the 21st century the Government would re-examine the value of doing that.

I will conclude on the point—National is very clear on this—that the pathway to the future on these issues is not the path of trying to include in our legislation the spiritual beliefs and cultural values of groups and individuals. We are not saying that groups and individuals should not have those beliefs, but we are saying that it is not in the domain of this Parliament to be legislating for them. That is the pathway to division and, more important, it leads to the destruction of our democracy. Our democracy will not benefit from doing that. [Interruption] The Labour member opposite may scoff, but it is those kinds of seeds that end up dividing communities. It is those kinds of seeds that separate people one from the other, and cause them to think not about the things that unify them in a democratic society, but about the things that divide them.

So I say that the importation into legislation of the title “Cultural redress”, and the reference in the legislation to spiritual values, is wrong. It is harmful to our society, it does not promote unity, and it does not help the settlement of grievances, but actually ends up promoting them. I ask the Government to think clearly about what it is doing to our country, because this is the pathway of division. The message should have been heard by the Government last year, but apparently it was not. Even now, after the huge debate that has occurred in our country, the Government is still seeking to divide New Zealanders by elevating and importing into legislation spiritual beliefs and cultural redress, but that is simply not a role for this Parliament.

Hon MARK BURTON (Minister in charge of Treaty of Waitangi Negotiations): I regret that Wayne Mapp has chosen to enter into some quite fundamental interpretation of his own. The word “cultural” means “cultural”. He has chosen to interpret it to mean many things that simply do not exist in this legislation.

I have to point out to the member, first and foremost, that most settlements, including and in particular Ngāi Tahu’s, include statutory acknowledgments. In the case of the Ngāi Tahu legislation they go on for pages. That legislation recognises the iwi’s longstanding cultural association with, and the significance to the people of, particular Crown-owned sites. That is in order to enable local government, for instance, to understand that reference.

Dr Wayne Mapp: There’s no reference to spiritual values in the Ngāi Tahu legislation.

Hon MARK BURTON: I have to say to the member that he is drawing a long bow. In my submission, the reference in the legislation to those relationships, to ensure wide community understanding and acknowledgment of the strong historical links between the people and those places, so that they can be properly recognised in the future, has no place in a discussion about dividing our nation. On the contrary, I think that the references in this bill serve to do what we as a nation should want to do going forward. I suggest that our democracy is, in the end, the stronger for our celebrating and embracing our differences. They are the things that make us unique. They are the things that strengthen us and give us a unique cultural heritage going forward.

Dr Wayne Mapp: I’m not denying that.

Hon MARK BURTON: I think the member has confused the practical function of this legislation in its reference to cultural heritage with things that simply are not referred to in the legislation.

PITA PARAONE (NZ First): Subpart 1 is headed “Protocols”. It is very interesting, given the reference to cultural beliefs and spiritual values, that these protocols were not referred to as tikanga. But I can understand why they were not included as such. That would have contravened the Government’s decision to support the recognition of two hapū based purely on geographic location, which is outside tikanga. So I can understand why the Government has called this subpart “Protocols”.

I want to refer to clause 21, “Authority to issue, amend, or cancel protocols”. Clause 21(1)(a) states that the Minister may “issue a protocol to the Ngāti Awa governance entity in the form set out in the schedules to the Ngāti Awa deed of settlement;”. That quite clearly refers to a template for a protocol. What is of interest to me is clause 21(1)(b), which refers to amending or cancelling that protocol. I have to ask what happens if any amendments are at variance with one another. Again, this clause provides an element of doubt. It also may put in question the endurance of the settlement this bill is addressing. I think it is important that if there is to be any amendment to protocols, then there ought to be some form of template so that there is consistency within the different areas that this particular clause addresses.

I also note that under clause 23, “Enforceability of protocols”, subclause (2) states: “If the Crown fails without good cause to comply with its obligations under a protocol, the Ngāti Awa governance entity may, subject to the Crown Proceedings Act 1950, enforce the protocol.” Again I refer to New Zealand First’s Supplementary Order Paper—which was defeated earlier—asking for the deletion of the words “or the principles of the Treaty of Waitangi”. I suggest that here is an opportunity for Ngāti Awa, should they not be too happy with a decision by the Crown to cause Ngāti Awa to comply with their obligations under a protocol, to make a further claim to the tribunal, because it is in contravention of the—

The CHAIRPERSON (H V Ross Robertson): I am sorry to interrupt the honourable member, but the time has come for me to leave the Chair.

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

PITA PARAONE: I will correct an omission of mine just before the tea break, and that was to acknowledge all the Aucklanders who are caught up in the traffic gridlock. I thought that by coming back after tea I might have missed them, but I realise they are still there, so I acknowledge all of those who are still caught in traffic.

I will conclude my time talking to this part by focusing on clause 23, and in particular subclause (2), which begins “If the Crown fails without good cause to comply with its obligations”. I notice that the bill is very silent on whether the Crown is obliged to comply if Ngāti Awa do not agree with the obligations under the said protocol. That highlights again for New Zealand First some of the uncertainty about this bill. We referred to the earlier uncertainty with regard to the term “principles of the Treaty of Waitangi”, and said that those very words lack definition. Here we see a repeat of that situation, and it again puts into doubt the durability of this settlement.

JIM PETERS (NZ First): I will speak briefly to Part 4 and pick up on the purpose of the statutory acknowledgments. Members will be familiar with these from previous bills that go right back to the Rt Hon Doug Graham’s work in regard to Ngāi Tahu, or Kāi Tahu. There is something here that is quite significant. In this bill, the statutory acknowledgements are far greater. If one takes into account the potential impact of what those acknowledgments might mean, alongside suggested concepts and amendments in the current Resource Management and Electricity Legislation Amendment Bill, the impact will be greater when that bill becomes law than it is at the present time. There is a very strong suggestion in that amended bill that these matters, in regard to iwi authorities and their place in resource management planning, will be elevated above what they are now. Whether or not that becomes so is a matter for select committee deliberation and consideration. But the fact remains that the acknowledgements that are listed in the Ngāti Awa Claims Settlement Bill, and the bodies that have to have regard to them, will make for an unusual situation if this bill becomes law and when local authorities in the Whakatāne district have to consider those matters.

I say again that the acknowledgments are much more lengthy than in other bills. They are local and there remains a residual concept of what the local authority must do. If one reads the bill in its entirety, the term “have regard to” has quite a persuasive impact. The Minister in the chair, the Hon Mark Burton, has already said that this is part of growing up as a nation. I acknowledge that. This bill, which is long overdue as far as Ngāti Awa is concerned, is part of the process. But there remains a residual doubt as to what impact this bill, along with the work being done on the renewed Resource Management and Electricity Legislation Amendment Bill, will have on day-to-day practice. I suggest that that should be clarified by the Minister before the end of the debate.

Hon MARK BURTON (Minister in charge of Treaty of Waitangi Negotiations): I reiterate what I said earlier. Most settlements do include references to statutory acknowledgments. This ensures that there is clarity about the matters that should be taken note of by local authorities, other appropriate agencies, and statutory bodies in terms of the customary and historic relationship of the people with particular places under Crown ownership. I think it is fitting and appropriate that they are included. It is certainly the case that in Ngāi Tahu’s settlement there were many pages of such statutory references and acknowledgements in order to ensure that those relationships were properly recorded.

STEPHEN FRANKS (ACT): Part 4 of the Ngāti Awa Claims Settlement Bill is what one could colloquially call the guts of it. It is where all the various privileges and rights are set out that need law to give them effect. It is where we see cultural redress properties identified and either set aside or made subject to encumbrances. It is where the Crown undertakes to give statutory acknowledgments and where it undertakes to enter deeds of recognition. It is where the Crown gives first dibs, or first rights, to coastal sites.

I am interested that no other member has spoken about this in this part of the debate. Coastal tendering on these sites will be for very valuable marine farming, and Ngāti Awa is given preferential rights to tender. At the same time we know that the Government gave 20 percent of these sites to Māori on a pan-Māori basis, anyway. There is no explanation of why something that is apparently part of a general settlement of potential claims with Māori is also now supplemented by preferential bidding rights, including automatic bidding rights at a deemed tender of $1, which must be accepted.

I would really like the Minister to explain why it is that if something is advertised and the Minister gets inadequate offers, the Minister is giving away the right to turn them all down, as any sensible tendering regime does, and instead is deemed to accept an automatic bid of $1. It could be a failure of advertising that leads to that situation. Has the Minister had legal advice on the sorts of slips between cup and lip that could result in automatic vesting of valuable rights for $1?

I want to go back to another very interesting speech made by Dr Wayne Mapp from National, who pointed to the entrenchment of weird religious concepts in this bill. These concepts have been in many bills and ACT has worried about it before. Many pages of the statutory acknowledgments cite things such as taniwha living in various places, the traditions that are asserted, and the places where the people of Ngāti Awa reflect on the life of their ancestors, sensing the ihi, or power, the wehi, or fear, and the mauri, life force, emanating from the land and the water. The bill states “All elements of the natural environment possess a life force”, and “The mauri of the coastal area represents the essence that binds the physical and spiritual elements of all things together,”.

Then we look at what the purposes of these acknowledgments are. Why is the Crown getting Parliament to acknowledge these statements of spiritual mumbo-jumbo? It is to require the relevant consent authorities—the New Zealand Historic Places Trust, or the Environment Court—to have regard to the statutory acknowledgment. What does that mean? Does it mean that taniwha will be holding up motorway bridges again? Does this deliberately write in requirements that the Environment Court must pay attention to this kind of spiritualist nonsense?

This is a secular society. It is appropriate to respect people’s religions as long as they do not attempt to use the force of law to impose them. What we have in this bill is a recital of some religious beliefs that just mean people like me who do not want to be afflicted by them are forced to deride them. We are forced to deride them because we do not know what the Environment Court is supposed to do with all this stuff. The provision goes on to state that it does not affect, and is not to be taken into account in, the exercise of any power, duty, or function by any person. What, then, does the first part mean when it states that the court must have regard to it? Why are we still, in 2005, writing law that does not mean what it states?

I ask United Future members why they are supporting a bill that contains this kind of mumbo-jumbo. What does United Future think of the injunction “Let your yea be yea and your nay be nay” when its members vote for something that has yes and no on one page? This is not just legislative candyfloss or tissue. This actually obliges New Zealanders to attack each other. The Environment Court is told it must have regard, so it puzzles over what regard it has to have. The Minister, exercising a discretion, is told that he has to have particular regard to something. I am not sure whether anyone has ever defined what different influence “particular regard” has from just “ordinary regard”—and these are words of statute.

Our judges will have to decide exactly what that means. On one page they are told to have regard, and on the next page the Government tries to have it the other way. If there is one thing we should have learnt out of the treaty grievance process, it is how dangerous it is to have New Zealanders set at each other’s throats by giving legal force to documents with bitterly contended meanings. It would have been perfectly acceptable, in my view, to have recorded these as the legends, myths, or beliefs of Ngāti Awa, but also to have stated that the sole purpose was to invite New Zealanders to be courteous—to have the sort of respect that any people owe to another not to confront them needlessly. Instead, one group of people is having theirs set out in statute. Then the Environment Court, the local authority, and the Historic Places Trust will all go through some kind of process where they will have to pretend to have regard to it, without being given any guidance as to what that means, other than being told it does not have the force of law.

The bill also goes on to state that no person or entity in considering any matter, or making any decision or recommendation under any statute, regulation, or bylaw, may give any greater or lesser weight to Ngāti Awa’s association with these areas than that person or entity would have given under the relevant statute if the acknowledgment had not been made. Is that stating that this is not worth the paper it is written on? Why has it been written? Are we really still giving Ngāti Awa bangles, beads, and blankets? Who is this supposed to fool? We get a lot of talk about maturity as a country and respecting diversity, but this is New Zealand’s Parliament telling itself that it can lie to itself, because on one part of the page we state “must have regard” and in the next part we are stating that it does not mean a thing.

So why did the bill not just state that this is to make a permanent record of the beliefs and the views that were once held? I doubt whether many Ngāti Awa even believe this any longer, but someone will make money out of asserting that they do. People will be encouraged to hold projects to ransom and to go along to object to people’s usage of land—probably public uses like landing ramps or mooring areas in water, or, on land, things that appear on the skyline, like windmills for wind power. Someone will be able to try to scrape a rent by resurrecting the so-called spiritual values that are reflected in this legislative nonsense.

I am very interested that we have had the Māori members of New Zealand First and National’s Māori spokespeople here, yet we have not heard a word in defence of any of this from anyone in the Labour Party. All those big, brave, bold people in the Labour Party’s Māori caucus have not joined in what is a genuine set of questions. For the first time, we have had Dr Mapp raising a set of questions, and I am absolutely delighted to hear the National Party raising those. I am delighted to see New Zealand First now putting its votes where its mouth has been for some time and voting against the meaningless word—or the sadly meaningful word—“principles”. But we have not heard a word of justification or explanation from any of the Māori members in the Labour Party. We have not heard anything from anyone in the “Christian party” explaining why those members are putting their votes behind this kind of animist animism. We have not heard anything about why United Future thinks that it is a good idea to support this.

Hon MARK BURTON (Minister in charge of Treaty of Waitangi Negotiations): I have to say, firstly, that I have the privilege of enjoying the support and advice of my Labour Māori caucus members in standing as the Minister in the chair in this important role. I respond to the member who just spoke by briefly saying that statutory acknowledgment does not give priority of right over consent but it does give an assurance of notification, and that links back to what I said in my earlier contribution. This is about ensuring that the historical, cultural relationship of the people to certain places is understood and therefore able to be taken proper notice of—

Stephen Franks: It states: “have regard to”.

Hon MARK BURTON: Yes, and indeed, they should “have regard to”.

Stephen Franks: What does that mean?

Hon MARK BURTON: Unlike the member I have much greater confidence in the decency of New Zealanders that if they understand, have regard to, and are aware of these issues, they actually want to get it right. I really do believe Kiwis want to get it right, want to be fair, want to be decent, and want to do what is right. This is simply a provision that ensures that unintended mistakes are not repeated in the future.

Dr WAYNE MAPP (National—North Shore): Those remarks by the Minister in the chair, the Hon Mark Burton, cannot go unchallenged. Going by what he is saying today, it is almost as if he simply does not understand what this legislation is about. He is saying that we should set out in legislation the idea that a particular group’s spiritual values should have legislative protection. That is what the bill states, I say to the Minister, and that is the reality of it. We do not do that for any other group. We do not do that for the Catholics, the Anglicans, or the Muslims.

Quite clearly, we have a history of respect in this nation.

Hon Mita Ririnui: Tainui settlement, fisheries settlement—

Dr WAYNE MAPP: That is actually incorrect, but I will come back to that. Prior to the dinner break the Minister drew out the point that the Ngāi Tahu legislation and, indeed, the Tainui legislation had references to nohoanga, particular properties, and so forth. That is not what we are discussing here.

National will be voting for this bill. We will be doing so because we support the idea of settlements. We do understand that Ngāti Awa have long and historic associations with particular places that should be noted in the legislation, but in essence those are property rights. Ngāti Awa will, of course, add their own cultural dimension to those property rights. That dimension does not require statutory protection.

The Government’s approach illustrates the fundamental contrast between our approach in National when we were doing settlements in the 1990s and the error of the current Government. We recognised the connection in the Ngāi Tahu legislation. Labour takes it further, because its legislation will entrench a belief system into legislation, and that is quite different. It is fundamentally different to entrench into legislation a belief system.

In a modern democracy there is simply no role or place for putting specific statutory recognition of a particular group’s beliefs into our legislation.

It is simply inappropriate. The reason why it is inappropriate is that one starts from the foundation that every person is created equal and has equal rights before the law. People have a right to their beliefs, and that is protected under the New Zealand Bill of Rights Act. That right is protected in the Treaty of Waitangi itself where it refers to the rights of British subjects. One of the inalienable rights of British subjects in 1840 was that their beliefs were to be respected. There was no necessity to entrench them into legislation.

I believe that the current approach of the Government to dress up—because ultimately that is what it is—the protection of particular property rights with the statutory recognitions of spiritual beliefs and headings in the bill such as “cultural redress”, will do harm. For the sake of apparently being inclusive, as Mr Mita Ririnui would have us believe, it actually ends up dividing people. It is one of the tragedies of this Government that it is simply unable to recognise that.

Has the Government not understood the tremendous reaction to Dr Brash’s speech at Ōrewa last year? That reaction was real and the Government knows it. Members opposite may scoff, but they know that that speech spontaneously struck a chord with the public. It was about the fundamental structure and values of our society in terms of equality of the law. The Government did try to respond. It created a Coordinating Minister, Race Relations. But when it comes to putting legislation in place, the Government still continues its old pattern, and that is most unfortunate. Because this bill is not the way to build unity in the country. I say by all means make settlements, by all means recognise the historic and traditional associations of indigenous people, but do not divide our society by elevating the spiritual beliefs of one particular group.

STEPHEN FRANKS (ACT): In the provisions relating to coastal tendering, the preferential rights are set out in a schedule appended to the Ngāti Awa deed of settlement. It may be that the Māori Affairs Committee, which considered this bill, had a good look at those preferential rights and it may be that they are entirely consistent with what is contemplated under the regime for aquaculture areas, as agreed by the Government last year. But I believe that the Ngāti Awa agreement was made well before that was contemplated. I do not know exactly how it will be done that the iwi gets a prior right, or pick, under this deed and under the deed of settlement, or how that fits in with the parallel rights created under the regime that accompanied the foreshore and seabed settlement.

If, as is stated under clause 120, the tender of Ngāti Awa, whose governance entity will presumably make these pitches, has a right to be treated as the most preferred tender by the Minister—if there is no tender or if the Minister would otherwise reject every tender—then it does seem that the interrelationship between this deed and the coastal marine area coverage of the foreshore and seabed arrangements ought to have been explained. I do not see anything that even touches on it. Nothing in the report from the select committee touches on it. There is a suggestion about Crown policy on overlapping claims, but I do not think that anyone has seen this as potentially overlapping claims. It seems like overlapping claims to me because of the arrangements that could well have people other than Ngāti Awa pitching for the same areas. I do not know whether they will have preferential rights, but there is nothing in the bill itself that indicates how competing preferential rights are to be dealt with.

The whole thing is wrong in principle. There was no reason for assigning 20 percent of aquaculture area to Māori. The principal concern I have about it is not that they get it, because it is a windfall anyway. When one is creating aquaculture rights one is creating valuable property rights, very sensibly, where none have existed before, and it does not matter hugely who they go to except that people should recognise them as a windfall. But what does matter is whether those property rights then get locked up and are not able to be dealt with freely by the owners. It does matter whether the aquaculture rights are article 2 property, for which there is an assurance of transferability and exclusive possession, or whether they are the kind of insulting property that is created by this bill—that is, the sort of property that is permanently afflicted with the kinds of restrictions that we find in the Fisheries Commission settlement arrangements, where people who may have lost all interest in fishing, or may have taken a strategic view that it had passed its peak, are nevertheless unable to shift to something better.

Some of the rights that are created under Part 4 are the sorts of rights that the treaty promised Māori they would not have. I cannot see, for example, how the nohoanga areas, the camping areas, will be exercised in, say, 30 or 40 years’ time, when the people who have been there for all time—the generations in that area—might be a tiny portion of the local community. They might be a very small portion even of the Māori population in the community. The exercise of this kind of right is likely simply to set them at odds with their neighbours, partly because, undoubtedly, there will be nepotism in the way it is organised. That is the way humans act. That is not something exclusive to Māori. If the temptation is there then it is used.

JUDY TURNER (Deputy Leader—United Future): I want to take a brief call to talk about cultural redress. I make the point that cultural redress provisions recognise that the damage done historically was not merely economic. Requiring, by law, all New Zealanders to “have regard” for the cultural interests of another is a very sad indictment on us all. The lack of regard that necessitates these provisions is entrenched to such an extent that the law must become insistent. What we have is a law saying: “Stop, wait. Check out what is appropriate before you act.” to a nation that has previously blindly stumbled ahead making decisions that affect people whom we never intended to hurt or damage, or continuing practices that were offensive to people whom we never intended to offend. All that the law does is to start to put in place that brake.

I would like to believe that as we as a nation could become so familiar with putting on the brakes, with checking with each other about the way to move ahead on given issues, that such law would appear almost “foolish” common sense; and that we could become so familiar with working with each other that we would no longer need to check the law books to decide on how to proceed. So we are very supportive of cultural redress. It acknowledges the damage that was done and it takes some proactive steps to make sure we control ourselves more in that regard.

The question was put that the amendments set out on Supplementary Order Paper 329 in the name of the Hon Mark Burton 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 98

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

Noes 22

New Zealand First 13; ACT New Zealand 9.

Part 4 as amended agreed to.

Part 5 Commercial redress properties

Dr WAYNE MAPP (National—North Shore): Part 5 is entitled “Commercial redress properties” and is essentially about the various transfers, and so forth. In fact, it is exactly what one would expect to be reflected in acknowledging breaches of article 2 of the treaty. Article 2 is fundamentally about property rights. Some of those property rights will have broader cultural significance to Ngāti Awa, and I have acknowledged that in my previous speeches, but said that indeed we should not make specific reference in legislation to beliefs. Those are the province of Ngāti Awa. On the other hand, the redress is a proper matter for legislation.

So in this part it is precisely that—simply a recording, by and large, of the types of properties that will be subject to redress, and a listing of them. They include such property as the Ōhope Beach Holiday Park land, for instance, that no doubt will then be subject to a lease to the operators of Ōhope Beach Holiday Park. Presumably it is not the intention of the Government to run roughshod over private property rights, or maybe it is—we will find out, I guess—and no doubt there will be other properties.

I note in clause 151 that there is a right of access on Crown forestry licences. The right of access has no effect on the rights of a licensee under a Crown forestry licence granted in relation to Ngāti Awa land. I have a question for the Minister. Clearly, there is a connection of that settlement to the central North Island forestry estate and I imagine that there will be claims by Ngāti Awa, along with other claimants, in relation to those lands. When we are debating those kinds of provisions one of the helpful innovations from Ministers, particularly the Minister who is in charge of the bill, as opposed to a Minister who is just sitting in, so to speak—in other words, a Minister who knows the subject well—is to take the first call to explain briefly the purposes of the part and what the Government of the day intends by the part.

Jill Pettis: The Minister has been taking calls.

Dr WAYNE MAPP: The Minister has not taken the first call to set out the rationale of the part. Therefore, what happens is that members from various parties end up having to raise questions. This is really a general comment about parliamentary procedure. Frankly, this Parliament and the public would be better served if the Standing Orders were modified so that at the beginning of each part in a debate the Minister took the first call to explain briefly the rationale, to initiate the debate. Of course, we would not expect the chief Government whip to have any idea about these kinds of things.

I ask the Minister what is meant by clause 151 and its relationship to the central North Island claim generally in regard to forests. That is essentially the National Party’s principal question in respect of Part 5.

Hon MARK BURTON (Minister in charge of Treaty of Waitangi Negotiations): I am taking an early call in response to the principle of the matter. Members who have been in the Chamber throughout the debate will acknowledge that I have taken a call on every part. I have tried to take a call to be helpful, useful, and responsive. If the member is suggesting that I am the fount of all knowledge, in advance of hearing what other members have to say, I take that as a great compliment but I am afraid that my natural humility will not allow me to accept it. I think it would be much more helpful for me to listen to what members have to say and to try to make some useful response. [Interruption]

The CHAIRPERSON (H V Ross Robertson): I call the Hon Georgina te Heuheu.

Dr Wayne Mapp: I raise a point of order, Mr Speaker. I take exception to the comment made by the chief Government whip as I sat down. The member knows exactly what she said. I heard it over here. I will not dignify it by repeating it. I ask that she withdraw and apologise.

The CHAIRPERSON (H V Ross Robertson): The member knows what she said. I ask her to stand, withdraw, and apologise.

Jill Pettis: I withdraw and apologise.

Hon GEORGINA TE HEUHEU (National): I am pleased to speak to Part 5, which deals with commercial redress. I want to raise the issue we dealt with in the Māori Affairs Committee. We received two submissions challenging the Crown’s decision to transfer 6,890 hectares of licensed Crown forest land in the Former Matahina A4 Block to Ngāti Awa. The committee requested advice, as we are bound to do when submitters bring serious issues to the committee. This referred to the issue of overlapping claims, which I raised with the Minister earlier. Those claims are rife in the central North Island, as the member Mita Ririnui knows. We both whakapapa into that area, so I think we have a reasonable knowledge of the dynamics that pertain to the central North Island, and of the concerns—rightly so—of those claimants still to come forward as they watch other claims being settled ahead of theirs. Some of those claims are way ahead of theirs.

On the issue of the Tūhoe interests in the Matahina lands, it was the subject of a case that went to the court. Suffice to say that the Crown’s—or the Government’s—attitude is to basically take into account the fact that there are other claims that might impinge on a particular block, or blocks, of land. The way that the Government, or the Crown, has seen fit to deal with it is to make a judgment as to whether there will still be sufficient land—in this case, licensed Crown forest land—to satisfy claims still to be dealt with, without holding up the right of Ngāti Awa, who have been through the whole process to have their claims settled.

Hon Member: How does the member know about this?

Hon GEORGINA TE HEUHEU: I am very diligent at the select committee. So the issue of overlapping claims is a real issue.

On balance, the Office of Treaty Settlements gave us explanations that stand for the moment. They will suffice for the moment, but whether, as the Minister moves through the central North Island, the position of: “Well, there will always be other pieces of land that we can satisfy those claimants with, therefore we won’t hold up this set of claimants.”, can be sustained remains to be seen. I hope that it can, but I have some reservations.

Some of the land that comprised the blocks that were under challenge has been offered to Ngāti Awa, but some has also been left so that when other tribes—in this case, the Tūhoe tribe—come to conclude their settlements, the Government says there will be enough land to satisfy their claims, as well.

I think the issue will become more complex as the Minister wends his way through the central North Island. The tribes there, including my own and Mita Ririnui’s, are not about to see things go easily if they think there is a claim on them. The Minister needs to keep a clear eye on that matter.

The CHAIRPERSON (H V Ross Robertson): Before I call the next member, there was an incident earlier when a member had to withdraw and apologise. The member was responding to an interjection. So, by way of advice to the Committee, I say to members that interjections are not permitted at all when they are directed at a member who does not have the call. In that case, members were interjecting on each other, and that can lead to disorder.

PITA PARAONE (NZ First): I want to take a call in respect of Part 5, and to continue with some of the concerns that have been expressed by the previous speaker, particularly in terms of the fact that this particular settlement will certainly affect a number of other cross-claimants. It is a real concern that in this bill we are proposing settlements that take in part of the assets for the area, yet we are not quite sure whether subsequent claimants will be satisfied with what is left to them—only time will tell. That is why New Zealand First is very specific in its demand to see clear definition in this bill.

With regard to clause 134—and I must say that I would be the first to admit that I do not have a legal background—I hope that the Minister will provide some clarification in terms of the concern that I have. Clause 134(1) states: “To give effect to section 8 of the Ngāti Awa deed of settlement, the Crown (acting through the Commissioner of Crown Lands) is authorised to do 1 or more of the following: (a) transfer the fee simple estate in a commercial redress property to the Ngāti Awa governance entity:”. How can the Crown facilitate that transfer of a fee simple without including clause 134(1)(b) in terms of assigning some formal document to confirm the transfer? I hope the Minister will give us some clarification.

If my assertions are correct, then quite clearly there is some lack of clarity in terms of what the clause intends. Again, I refer to the fact that we need to have clear definition and clarity so that this settlement, and the intention of this bill, is an enduring one and that we are not inviting further claims to the tribunal in respect of this settlement.

STEPHEN FRANKS (ACT): I rise for the ACT party to address Part 5 of the Ngāti Awa Claims Settlement Bill, “Commercial redress properties”. As I understand it, they are primarily motor-camp areas, parts of the Kāingaroa Forest, and some other less significant areas. I want to raise a question about the constitutional propriety of this. I know it is common for MPs to try to be a bit grandiloquent and claim that this constitutional breach is very easy, but what I am puzzled about is the provisions that state that transfers pursuant to the deed of settlement can be done notwithstanding any other law; that nothing in section 11 or Part 10 of the Resource Management Act applies; and that nothing in the local government legislation applies to the creation of roads or private ways in these areas.

ACT does not really care much if Māori are to be given the privilege, as they now are, of ignoring the de facto confiscations in the Resource Management Act. I quite like the idea that they may have negotiated the true rights in article 2 of the treaty—that is, genuine classical property rights without the Resource Management Act coming in to expropriate. However, I am concerned as to whether this Parliament is effectively passing over the right to legislate. I see that the Ngāti Awa deed of settlement is defined in clause 12 as including any amendment to the deed. When we read these together we are effectively saying that some parts of this deed that I have not seen—I imagine the select committee has seen it, but Parliament does not have the deed in front of it—waive statute, and, worse, if the Crown decides, it can change the deed with Ngāti Awa, and therefore waive statute in a different way than Parliament can possibly know at the moment.

This would be of no problem if the deed was fixed at today’s date. There is no constitutional problem there, and good on Ngāti Awa for getting exemption from the Resource Management Act. But when we know that this deed is variable, so that the deed referred to here is the deed from time to time, the deed as we might wake up tomorrow and decide to make it, Parliament is giving the Crown and Ngāti Awa a permanent right of exemption from a number of statutes. That is constitutionally offensive. I doubt whether anyone thought of that. I imagine that it is an oversight, but it is something the Minister should fix. The deed should be changeable, but not in a way that could change the effect of these exemptions that Māori are being given under this settlement.

Dr Mapp would be well advised to turn his powerful legal mind to this. Dr Mapp has looked at other areas here, but the effect of the exemptions from the Local Government Act 1974, the Conservation Act, and the Resource Management Act, combined with the power to change the deed, is quite a significant breach of the normal requirement that statute not be capable of modification by delegation. This is saying that that is the case.

The second point I want to get an explanation on is why the right of access under clause 147 runs with the land and binds all subsequent owners of Ngāti Awa land. That tells me that these rights of access will persist as a statutory matter even if Ngāti Awa has rid itself of all the land. Why was it not left to Ngāti Awa just to create easements? They could make an easement on their land, and then sell it subject to the easement. But what we have here is a statutory permanent right of access that may seriously affect the value of the land. Ngāti Awa will not be able to give assurances that this will not be a problem to the subsequent purchaser. This is a clog on the value for Ngāti Awa. This is treating Ngāti Awa as if they do not know their own minds and as if they cannot sort it out themselves. Why could the landowner not have done precisely what this provision purports to do?

Hon MARK BURTON (Minister in charge of Treaty of Waitangi Negotiations): Just to take the last point first, I assure the member that the waivers he referred to apply only to property transferred in terms of the transfer to Ngāti Awa. Beyond that, normal legislative requirements apply.

I want to pick up on the point made by Dr Mapp about clause 151 and reassure him that all existing property rights are protected, including any rights the Crown forest lessees have. In response to comments made by Georgina te Heuheu, the Waitangi Tribunal, the High Court, and the Court of Appeal have considered how cross-claims to central North Island forests were treated. These bodies found that the Crown’s approach was appropriate and consistent both with the treaty and with legal obligations.

It is a point worth making, because the member raised some important issues. I have no illusions about the scale and complexity of the challenge ahead with central North Island settlement. It is where I live and will one day retire and die, so it matters deeply to me in every sense. It is worth noting for the record that 95 percent of central North Island forest land is still potentially available for settlement. So the room to manoeuvre, one could argue, is still considerable in terms of ensuring there is the opportunity to reach fair settlement in the future.

The question was put that the amendments set out on Supplementary Order Paper 329 in the name of the Hon Mark Burton 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 98

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

Noes 22

New Zealand First 13; ACT New Zealand 9.

Part 5 as amended agreed to.

Part 6 Awanuiarāngi II title

Dr WAYNE MAPP (National—North Shore): Part 6 is about the Awanuiārangi title. It is an intriguing concept. I guess it comes out of the precedent set in the Tainui legislation, which has the Te Wherowhero title as well. We are creating a rather odd statutory situation here. As a general concept under our land law—be it under the Māori Land Court or the Land Transfer Act—one cannot register land ownership in an entity that in essence does not exist. One would normally have to vest it in a living person, an incorporation, a trust, or something of that nature. Here we are not doing that. I am informed by my colleague Georgina te Heuheu that the Awanuiārangi II title actually refers to the ancestor of Ngāti Awa. An intriguing point was raised earlier this evening by Mr Pita Paraone who asked what happened to Awanuiārangi I. I am advised that he was resident in, let us say, Hawaiki. It was his descendant—and I am relying on what the member told me—who founded Ngāti Awa and now we are vesting the lands in the ancestor of Ngāti Awa. National is not opposed to this. We did this for Tainui, but it is an unusual thing to do and I guess we should acknowledge that at this stage.

I previously spoke about the inappropriateness of making references to spiritual values in legislation because it infringes some of the founding principles of our democratic system. However, I would have to say that this does not do that. This is a recognition of Ngāti Awa organising their own ownership interests in the way they want. It does not impact on anyone else, so I see this as a legitimate, if nevertheless interesting, legal device that has been developed.

I draw the Committee’s attention to clause 160, and, indeed, my colleague may develop this idea a bit more comprehensively. It basically states that, in the event that land is owned under this title and is regarded as wāhi tapu, in no circumstances can there be any exploration for minerals by any other person. Presumably that would be a Crown minerals grant, for instance, for gold, silver, or oil. There is a group of minerals, as the Minister will well know, that are the property of the Crown and the Crown can grant licences to others to explore for those minerals. In this instance, under clause 160, that power will not exist. The Crown has made a special exception for Ngāti Awa so that they can exempt a portion of their land from this kind of exploration. It is a right that only they will have. Other New Zealanders will not have that right. I guess that is something that at the very least has to be questioned.

Again it comes back to the principle: why make special exceptions? Under the Resource Management Act or the Crown Minerals Act, clearly wāhi tapu would almost certainly be a good reason not to grant such a licence. That is how it would normally be dealt with in relation to the general public. One would not normally imagine that a mining licence would be granted over land with important historical significance for the nation at large, but under that legislation it is a general concept. Here we are making an absolute prohibition based on the ethnicity of this particular group. I have to question whether that is the right way to do things. It might seem a generous and reasonable gesture, but unfortunately it infringes against the principle of all of us being treated equally under the law with the same rights and duties under the law.

Hon GEORGINA TE HEUHEU (National): My colleague is of course correct when he says that we have seen these kinds of provisions before whereby an ancestor is named in the title. Although that may be unusual in the normal Western sense, Māori do not find it unusual at all, and that is clearly why we have it here. My understanding is that it is a recognition not only of the fact that Awanuiārangi II was the ancestor who came here but that his family was intimately connected and settled and resided in the lands now given this special title. So on the face of it, it seems a reasonable thing to do. Clearly, if Ngāti Awa see it as the right thing to do, then it ought to be supported. I agree with my colleague, in the sense that that is probably an unusual thing in the Western World, but we in New Zealand are pretty used to seeing that kind of thing become part and parcel of the fabric of our society. Although it is generally a worry to some, I guess, as Dr Mapp says, it does not affect anyone and it does give Ngāti Awa an opportunity to recognise the status, mana, and rangatiratanga of their ancestor.

In relation to clause 160, which my colleague thought I might make some comments on and which I now feel bound to, I will make my comments by way of a question. I ask the Minister whether he sees this clause as providing an exception that offers something over and above what one would accept as usual in the normal run of things. The clause appears to contain an absolute prohibition on any exploration activity, because the title of the area will be vested in Awanuiārangi II and the area will also be regarded as wāhi tapu. That is why it is given that status, but I do not know whether National would want to see that kind of thing become commonplace in settlements. As I say, perhaps the Minister might like to explain the rationale for that provision. It is not going to mean that National will not support it, but I think it is proper for New Zealanders, for those of the public who might be listening, to understand why these things are being done in the way they are.

On balance, I say that while Part 6 is a small part, it is an important part to Ngāti Awa. It gives them a chance to recognise in a more than extra way their esteemed ancestor. There is certainly precedent for doing that, although that precedent took place some years ago now. It does seem that that provision hurts no one but adds to the settlement.

SIMON POWER (National—Rangitikei): I raise a point of order, Mr Chairperson. At the risk of seeming churlish, I wonder whether you could advise the Committee. I have a list of ministerial delegations only from August 2004. Could you please confirm to us that Mita Ririnui, who is sitting in the chair, is a Minister of the Crown. We are having a discussion over on this side of the Chamber, and we do not know.

The CHAIRPERSON (H V Ross Robertson): Yes. Mita Ririnui is the Hon Mita Ririnui, and he is a Minister of the Crown.

PITA PARAONE (NZ First): I want to make a few comments, particularly with regard to the rationale for putting property in the name of an ancestor. I can well understand the reason for that, particularly if one were wanting to ensure there was no likelihood of any future alienation of that property. But the bill also permits the agreed governance entity to act on behalf of that ancestor, so I wonder whether we do not include in the bill a provision for all property to be in the name of Awanuiārangi II. However, I appreciate that this has been the request of Ngāti Awa. I want to make clear that I understood what the honourable member Wayne Mapp said when he was advised that Te Rangihouhiri—or was it Awanuiārangi I?—was an ancestor who lived in Hawaiki. Which one was it—Awanuiārangi II or Te Rangihouhiri? [Interruption] Well, is it not strange that the one member who raised the issue, is not showing courtesy by way of explanation as to what happened to Rangihouhiri I? That is the first point.

Secondly, I ask why it is that 20 years ago it was quite acceptable to have an ancestor who lived in Hawaiki included in legislation made by this Parliament. All of a sudden, 20 years later, it is not acceptable.

Stephen Franks: It’s pure xenophobia. That’s all.

PITA PARAONE: It may be so—whatever the member may think. There has to be some consistency, and that is why New Zealand First since the debate on Part 2 has risen to object to those parts we have discussed. There has to be some certainty in terms of the definition of the words and phrases we use. If there is no certainty as to what they mean, then we are certainly condemning ourselves to revisit this whole issue sometime in the near future.

During the course of the debate on this bill we have an opportunity to ensure that we do not have to revisit this issue, so I would like to make that point in discussing this part.

Hon MITA RIRINUI (Associate Minister in charge of Treaty of Waitangi Negotiations): I stand briefly to respond to some of the matters that have arisen. I hope that the National Party’s senior whip, Simon Power, is satisfied with the explanation given by the Chairperson. In relation to the issue raised by Georgina te Heuheu earlier on during her speech, with regard to clause 160, I think that the matter did come up at the Māori Affairs Committee, but she may have forgotten the explanation that was given at the time. The provision about the sites referred to in the bill in terms of the Crown Minerals Act applies only to those areas of very, very high significance to Ngāti Awa, and it sets in place a protocol for discussion and consultation before any exploratory work takes place. That was explained in detail to us at the select committee in Whakatāne.

In response to Mr Paraone’s issue regarding Awanuiārangi II, Ngāti Awa have strong whakapapa as do Ngāpuhi, Ngāti Wai, Ngāti Hine, and all iwi around the country. Ngāti Awa make particular reference to Awanuiārangi II because much of the area around central Whakatāne, subject to the claim, is where his estate was. This bill does not set a precedent for any future claims, because its title, the Ngāti Awa Claims Settlement Bill, applies only to Ngāti Awa. If there are some variances in other bills, particularly in relation to a claimant group, I am sure that Mr Brownlee would be more than happy to explain how that works. I hope that that is a satisfactory explanation in response to the issues raised.

STEPHEN FRANKS (ACT): I am a little disappointed that the honourable Minister Mita Ririnui has already spoken, because I fear that he will not be inclined to take another call to answer some more questions.

I am a bit baffled by Part 6. It seems to me that it has a very broad definition of the land that it can apply to. It means each cultural redress property—and I see the schedule of those. I cannot tell from the schedule whether they are all properties that will actually be in the ownership of the Ngāti Awa governance entity. I see the officials nodding—that answers one concern. It looked to me as if otherwise there might have been the ability to create protected rights over someone else’s property.

The second point is that while the ability to register the Ngāti Awa governance entity land is in the name of Awanuiārangi II, it looks as if it is protecting a particular hapū’s interest, which I imagine it was intended for; I am not sure—

Dr Wayne Mapp: It’s the whole of Ngāti Awa.

STEPHEN FRANKS: It is the whole of Ngāti Awa, is it? I see. So what this is really saying is that the whole of the Ngāti Awa land can be given protection against prospecting.

Dr Wayne Mapp: If it’s wāhi tapu.

STEPHEN FRANKS: Well, it is not just whether it is regarded as wāhi tapu, because the areas that can be included will be Ōhope Beach Holiday Park or Whakatāne airport, and all the commercial redress land, which would be vast areas of forest, I imagine. I am just not sure. We have not seen an explanation. No one has explained why such a vast area can be arbitrarily made exempt from the normal Crown Minerals Act right of access. Again, I am not familiar with that Act, but it seems to say that they cannot carry out minimum impact activity. Is there other activity that they could carry out that is not protected? If so, what is the purpose of clause 160, because this seems to contemplate that cultural redress land; commercial redress land, which could be a lot of forest; Ōhope Beach Holiday Park; and Whakatāne airport all can be protected against minimum impact prospecting, as I understand it would be. Would that include flyovers, for example, towing a magnetometer in a helicopter? I would imagine that it is very hard to know, if one is doing that kind of mineral prospecting, whether one has even infringed this section.

I am a little puzzled. I would be quite pleased to have an explanation as to why this benefit covers only the land that ends up being stuck in the name of the revered ancestor, and why it does not cover all the Ngāti Awa properties, when Ngāti Awa could make it cover all its properties simply by putting it all in the name of the revered ancestor. In other words, if it was to be something members of Ngāti Awa could do—effectively have their own private exclusion from the Crown Minerals Act—why has it been hidden back in this obscure clause, clause 160, as something that could occur simply by a unilateral reregistration in the name of the revered ancestor?

There is no procedure here for testing whether a decision to regard something as wāhi tapu is justified. Maybe the courts would imply some sort of reasonableness measure, but it does look again as if this provision might not have been properly considered, and that people might not have been aware of just how broad an area it could cover or had it in mind that it covered only a few of the special cultural redress properties. It certainly covers an awful lot more than that. I hope the Minister is able to explain it.

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

Ayes 107

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

Noes 13

New Zealand First 13.

Part 6 agreed to.

Part 7 Ancillary claims settlement

The CHAIRPERSON (H V Ross Robertson): The question now is that Part 7, clauses 161 to 170, which also includes debate on schedule 16, stand part.

Dr WAYNE MAPP (National—North Shore): What I have in my hand here tonight are the deeds of settlement of three particular claims: the Pukaahu claim, the Waiōhau historical claim, and the Rangitaiki 60C historical claim, and they will be tabled later on. Those settlements were presented to the Māori Affairs Committee very late in the process. In fact, the date of the Waiōhau claim is 1 December 2004, the Pakaahu claim is 15 September 2004, and the other one was 15 December 2004. The concern is whether they went through a proper evaluation by the select committee process. At best, it would have had to have been an extremely limited one.

The second question, however, is rather more significant. Two of the claims look to be essentially hapū claims. They are the Waiōhau historical claim and the Rangitaiki 60C claim, covering literally up to thousands of owners. However, the Pukaahu claim looks like a whānau claim, and the reason I say that is this. It refers in the recitals, or in the background within the deed, to the transfer of land to Rōha Petera and Wīremu te Whatapapa. They were individuals who came to own quite small portions of land back in 1893 and 1881. In 1891 some land was surveyed out for a road. In 1914, 1 acre was taken for a pumice quarry, and subsequently 3 roods, or 27.8 perches, were returned to the descendants of those owners. In 1918 some 10 acres were taken for hot springs, and there are various other recitals of that nature. Because back in the 1890s the land was referred to as having a single owner, what we are settling upon now is not a transfer to Ngāti Awa in general but appears to be a transfer to, or a recognition of a settlement for, the specific descendants of those people. I have to ask whether it is appropriate that a settlement of this nature be included in a broad iwi settlement for Ngāti Awa, because it seems the Government is simply using the convenient device of this legislation being present in the Chamber today to wrap the settlement up, just like that. It is just a packaging exercise and nothing further.

That then raises a further issue. We have a practice in Parliament now that all settlements, and certainly iwi settlements, have to have their own specific legislation. Each iwi has to have its history recited before the tribunal, have it set out in the legislation, and gain specific recognition through this Parliament. Often, as we know, the settlements are accompanied in the third readings, in particular, by iwi members coming here, and there is a celebration that the settlement has taken place. I suspect that is a reasonable process when we are talking about issues of major historical significance. Those issues, after all, largely arise from the Land Wars: the grievances of Ngāti Awa, Tainui, and so forth. Surely that does not apply to the Pukaahu settlement, which is a family claim, in essence. Surely we should have a better system in place in this Parliament and with this Government, so that family settlements do not require specific legislation.

I ask the Minister, therefore, why the Government is packaging into an iwi settlement that is intended to rectify a major historical grievance, what is in essence a whānau claim—a family claim that talks literally of the taking of 1 acre for a pumice quarry and of things of that nature. That is not, I suggest, an appropriate use of parliamentary time. By all means let us settle those grievances, but should it require legislation to do so?

Hon MITA RIRINUI (Associate Minister in charge of Treaty of Waitangi Negotiations): I stand briefly to respond to the member’s concern with regard to the smaller claims being incorporated into the wider Ngāti Awa claim. I advise the member that it was done upon a recommendation from the Waitangi Tribunal during its hearings on the Ngāti Awa claim. It also acknowledges that although the Ngāti Awa claim is separate, we are talking about the same people, hapū, and land area. Because the smaller claims progressed considerably more slowly than the Ngāti Awa claim, the Māori Affairs Committee decided to continue to support their inclusion in the wider Ngāti Awa claim.

Hon GEORGINA TE HEUHEU (National): My colleague is correct in the respect that the completion of the deeds of settlement of the three ancillary claims occurred pretty close to the end of the select committee process. In reality, I do not think that the Māori Affairs Committee really had the opportunity to explore those claims, so I guess it is inevitable that some questions will now arise.

I am advised by one of the claimant’s negotiators that these three settlements arise out of three separate claims before the Waitangi Tribunal. I remind the Committee that the Treaty of Waitangi Act makes it possible for a Māori or any descendent of a Māori to lodge a claim. If we think about the fact that Ngāti Awa lodged its claim years back—1988, I think—we can understand that it is not surprising that other ancillary-type claims had also been filed. I guess that in this case those claims were filed.

I think, with all due respect to my colleague Dr Mapp, that the process is not something the National Opposition would want to see happen too much. In other words, a select committee is having to deal with a major iwi claim when on the side other ancillary claims are still being tidied up. I suggest to the Minister in the chair, Mita Ririnui, that that kind of thing should be avoided in the future, because in my view it just does not make for a neat and cohesive approach to that process.

However, I think it is proper to avoid the situation whereby major claims are settled but a whole lot of little ancillary claims have still to be done. That is a position we would not want to see, either.

On balance, although these three claims have been rolled in under the umbrella of the major one, we know that the claimants are all Ngāti Awa people. They are all descended from the same ancestors. It just so happens that those three sets of claimants saw fit to file separate claims. I guess in respect of the claim concerning Awakeri Springs, which seems to me to be a pretty neat and discrete claim, that is understandable.

The process leaves something to be desired in terms of the way that the Minister and the Office of Treaty Settlements have dealt with all this. I hope that in future, when a select committee holds hearings, all the information it needs will be before it. That is the only way it can properly do its job, which is basically to scrutinise the settlements and legislation before it. Maybe it is due to my background as a tribunal member, but I can certainly see the sense in bringing ancillary claims under one umbrella.

There was an issue about signing, though. I want the Minister to check that all three deeds of settlement are properly signed and dated.

Dr Wayne Mapp: One’s got 1 December, which is odd.

Hon GEORGINA TE HEUHEU: Yes, it must be the fact that the date of 1 December 2004 came after the matter had been dealt with by the select committee. I think I am right about that; someone will no doubt correct me if I am not. So if that settlement were concluded after the select committee had wrapped up its hearings, then I again caution the Government against that sloppy kind of process. I think my colleague Dr Mapp would agree with me. I do not think there is any room for sloppiness in respect of a settlement that has attracted controversy in some quarters.

PITA PARAONE (NZ First): I stand to comment on one or two aspects of Part 7 of the Ngāti Awa Claims Settlement Bill and the schedule relating to it. We heard from earlier speakers that the three ancillary claims are connected to Ngāti Awa, hence their inclusion in this bill. I would have thought that an explanation of that connection would be described somewhere in the bill. Anyone looking at the bill without any knowledge of that connection would have to ask why the three ancillary claims are included in it. That is my first point. My second point is that I can understand why the ancillary claimants agreed to have their claims included in this legislation. The reason would be purely a matter of convenience in order to have their claims dealt with.

Is it not strange that we are taking advice from the Waitangi Tribunal and accepting what it suggests we do, without giving due regard to the rangatiratanga—something that the tribunal and, dare I say, even this Government have often extolled the virtues of—being applied to these three claimant groups? I would have thought, given the tribunal’s support for the use of the word “rangatiratanga”—and I ought to add that the word is referred to in the Māori version of the treaty—that that concept would be given those three ancillary claimants.

I also want to express concern with regard to the Rangitaiki 60C claims. Clause 163(2)(b) makes reference to the acceptance of legal adoption. I know that during the select committee stage of this bill in particular, and in subsequent hearings, some concern was expressed about the acceptance of those who, although legally adopted, are not connected by way of genealogical ties. I am not quite sure whether that is something the claimants clearly wanted, or whether it is something the agents for the Crown suggested should be done.

I support the concerns expressed by Dr Mapp from the National Party, who outlined that all the claimants are clearly whānau or of a hapū group, and not of the iwi group. The fact has been mentioned that they can claim genealogical ties to Ngāti Awa. This leads me to ask whether they are therefore natural beneficiaries of Ngāti Awa. If so, then they seem to be able to have a bigger bite of the cherry. In fact, they have two bites: they have a bite by virtue of their ancillary claim, and also they are able to claim beneficial entitlements by way of their genealogical connections with Ngāti Awa.

I invite the Minister to take a call on these matters.

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

Ayes 107

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

Noes 13

New Zealand First 13.

Part 7 agreed to.

Schedules

Schedule 1 agreed to.

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

Ayes 98

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

Noes 22

New Zealand First 13; ACT New Zealand 9.

Schedule 2 agreed to.

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

Ayes 98

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

Noes 22

New Zealand First 13; ACT New Zealand 9.

Schedule 3 agreed to.

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

Ayes 98

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

Noes 22

New Zealand First 13; ACT New Zealand 9.

Schedule 4 agreed to.

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

Ayes 98

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

Noes 22

New Zealand First 13; ACT New Zealand 9.

Schedule 5 agreed to.

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

Ayes 98

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

Noes 22

New Zealand First 13; ACT New Zealand 9.

Schedule 6 agreed to.

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

Ayes 98

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

Noes 22

New Zealand First 13; ACT New Zealand 9.

Schedule 7 agreed to.

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

Ayes 98

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

Noes 22

New Zealand First 13; ACT New Zealand 9.

Schedule 8 agreed to.

A party vote was called for on the question, That schedule 9 be agreed to.

Ayes 98

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

Noes 22

New Zealand First 13; ACT New Zealand 9.

Schedule 9 agreed to.

A party vote was called for on the question, That schedule 10 be agreed to.

Ayes 98

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

Noes 22

New Zealand First 13; ACT New Zealand 9.

Schedule 10 agreed to.

A party vote was called for on the question, That schedule 11 be agreed to.

Ayes 98

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

Noes 22

New Zealand First 13; ACT New Zealand 9.

Schedule 11 agreed to.

A party vote was called for on the question, That schedule 12 be agreed to.

Ayes 98

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

Noes 22

New Zealand First 13; ACT New Zealand 9.

Schedule 12 agreed to.

A party vote was called for on the question, That schedule 13 be agreed to.

Ayes 98

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

Noes 22

New Zealand First 13; ACT New Zealand 9.

Schedule 13 agreed to.

A party vote was called for on the question, That schedule 14 be agreed to.

Ayes 98

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

Noes 22

New Zealand First 13; ACT New Zealand 9.

Schedule 14 agreed to.

A party vote was called for on the question, That schedule 15 be agreed to.

Ayes 98

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

Noes 22

New Zealand First 13; ACT New Zealand 9.

Schedule 15 agreed to.

A party vote was called for on the question, That schedule 16 be agreed to.

Ayes 98

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

Noes 22

New Zealand First 13; ACT New Zealand 9.

Schedule 16 agreed to.

Clauses 1 and 2

GERRY BROWNLEE (Deputy Leader—National): I want to make a couple of comments at this point in the debate, as we discuss the title and the commencement of this bill. These days, title debates—particularly when coupled with debate on the commencement of the bill, as this is—allow us to make comments in a much more general way than might have been the case in the old days when there was a strict title debate. Everyone knows that this is the new convention put in place by the outgoing Speaker, the Rt Hon Jonathan Hunt.

The first point I will make is that these bills should not create grievance. In settling a grievance, nothing much is achieved if there are grounds for further grievance. I was disappointed that the Minister did not take a call to deal with the issue spoken of earlier by Mr Pita Paraone. Mr Paraone told the Committee that the bill, in part, will prescribe not only who is Māori, but who is a person of Ngāti Awa descent for claims purposes where there has been a legal adoption in the family.

We had quite a discussion at the select committee about the issue of whāngai, and how those people fit in. The response from the Office of Treaty Settlements was somewhat inadequate in suggesting that this had to be in the legislation because of New Zealand’s human rights legislation and adoption laws. I would have thought that if we are settling a grievance that arises essentially from quite a long time ago, the way in which this legislation is applied would perhaps lead to further grievance by Ngāti Awa in the future. I am persuaded of this by considering that if one of my grandparents had been in this situation, then the consequence—because of the size of our family—would be that in just two generations well over 130 people who had no blood connection to Ngāti Awa would be able to say that they were Ngāti Awa and claim any benefit that may arise because of that. I just do not see how that is fair.

I think the response to us from the Office of Treaty Settlements also highlights the fact that the office seems to want to ride roughshod over the whole political process that is associated with these bills.

The fact is that if we are to have enduring settlements, there should be a high level of buy-in to them from both sides of the House. The Crown’s expression is done in this House. It should give the Office of Treaty Settlements no comfort that tonight so many parties are not supporting the passage of this bill. It may not be the first time that there has been a big break in Parliament around a treaty settlement bill, but I think this is the most significant block, so far, to walk away from the concept of Parliament more or less unanimously choosing to support settlement bills. Perhaps the behaviour of the Office of Treaty Settlements hints at the way in which the public service has allowed itself to become increasingly politicised in recent years.

I do not think the amount that is being settled upon Ngāti Awa here is a big issue. We should see it in light of the fact that the entire settlement is worth about one-eighth of what the current Government has squandered annually for the last few years on Te Wānanga o Aotearoa, which has been in the news so much of late. But it is important—because it is a settlement, because it is supposed to be full and final, and because it is this House legislating away rights that some New Zealanders have—that a large number of members of Parliament accept that, and that they can be confident that those who are recipients of the settlement are equally happy.

JIM PETERS (NZ First): As we come to the debate on the title, I say that it was difficult for New Zealand First members, having read through this bill, to take the stance we have taken tonight. It was difficult in the light of any understanding of recent history, and of the bill’s long passage with regard to Ngāti Awa and the redress being sought in it. In particular, the difficulty of bringing it to its final summation has long been acknowledged in the course of the first and second readings. For us, the core of the debate has been the definition of hapū, and the principles of the Treaty of Waitangi in particular. We can compare section 8 of the Resource Management Act to clause 10, “Text of apology in English”—the apology is also in Māori—which states in subclause 3: “The Crown profoundly regrets and apologises unreservedly for the breaches of the Treaty of Waitangi … and its principles acknowledged above.”, and then, at the end of the apology, subclause 9 states: “Accordingly, with this apology, the Crown seeks to atone for these wrongs and begin the process of healing and looks forward to building a relationship of mutual trust and co-operation with Ngāti Awa.”

Then we see that the schedules contain particular regard to the Whakatāne, Rangitaiki, and Tarawera rivers. The historical record of Ngāti Awa being made clear, the Office of Treaty Settlements and the present Government has seen fit to give statutory acknowledgments to Ngāti Awa of those rivers. Each of those acknowledgments is defined. Yet here is the rub. When one comes to the end of the schedules, one finds that there are limitations upon these acknowledgments. So what does this mean? Does it mean that the principles of the Treaty of Waitangi, which are not explained or expressed, will be looked at by people who look at this bill in its current form, or who will look at it when it has been passed by the House and has been put into practice?

There is the inherent contradiction here that, without the principles of the Treaty of Waitangi being explained, Ngāti Awa will have a very uncertain course with regard to their supposed understanding of the rivers and the resources that they believe—and could believe because of the text—are theirs to enjoy, but in actual fact, in practice under the Resource Management Act, are not so. That shows the inherent conflict that the Treaty of Waitangi has for the Government because its “principles” have not been defined. It again leaves New Zealand First reluctantly in the position of not supporting this bill, because of the lack of clarity in Parts 1 and 2, and because of the ambiguities that the Government of the day has not seen fit to resolve. We hope that Ngāti Awa will be able to make progress, and if those three rivers were to be not set down as a precedent, giving a forecast for others, such as the Waikato or the Whanganui rivers, our party would support that.

Again, in conclusion, New Zealand First will not be supporting the passage of the bill. We believe that the text lacks explanation and clarity, and that, particularly in regard to the issues that have already been gone through concerning hapū, the legislation is not a proper and due apology by the Crown. It lacks real substance and it certainly lacks impact with regard to Ngāti Awa being able to exercise the sovereignty that three of the schedules we have just passed would seem to give, with regard to the Whakatāne, Rangitaiki, and Tarawera rivers. That is the nub of the issue: if Ngāti Awa are not able to exercise sovereignty, then what have they got? I leave members with that unanswered question.

STEPHEN FRANKS (ACT): I think that although the term “settlement” is used in the title of this bill, as the deputy leader of the National Party has already said, a settlement is unlikely. As we have gone through the Committee stage we have seen this bill to be a reflection of scruffy, casual practice by the Government—induced, I think, by years of an assumption by the two big parties that no one would seriously question them. We saw that in the report of the Māori Affairs Committee when it came back to the House. The committee stated: “we have been mindful of … the rules relating to legislation to confirm agreements such as deeds of settlement. These mean that we cannot substantively amend this bill in any way that is not acceptable to the parties to the deed being implemented.” What are those rules? There may have been some conventions. There may have been practices that the two old parties have adopted. But when we went through this bill we found there was not only a need but also a desperate willingness on the part of the Government to do a bit of amending.

The Government had to amend the preambles, because the Committee was misled when the bill first came to it about the lack of difference between the Māori text and the English text. Then we had considerable discussion about just what that may mean as a principle for this Parliament. If we are to stick parallel texts in legislation because it is thought to look fashionably sensitive to do so, what do we do in order to make sure that they do mean exactly the same thing? The Committee did not use its own official interpreter. Instead we wasted hours in debate because the Government chose one of its own Māori members—a former Minister—to do the interpreting, and then we found that he did not interpret accurately. Today we have had a debate about the absence of any statement as to which text is authoritative.

We know that languages evolve and meanings drift, and it is very hard indeed for a future generation, even a few years hence, to understand the motivation when deliberately obscure words have been used—and this legislation is full of them. This bill is full of casual, deliberately obfuscatory words in English, let alone possibly in the Māori text as well, which I do not understand. We see a whole swathe of references to acknowledgements, to protocols, to deeds of recognition, and to text that people are directed to have regard to, or at a higher level to have particular regard to. But there is no indication of what that means.

The Environment Court, under this legislation, is told to have regard to acknowledgements of Māori associations, Māori beliefs, Māori spiritual understandings, and historic myths, with no indication of what that regard is, other than a statement that it does not have legal effect. What is a court supposed to do when it is having regard to such matters but is not giving effect to them? Should it piously run its eyes over a matter and ignore it, or do what the courts have done: try to go through and make sense of instructions within a system that has struggled for centuries to ensure that the law is secular, rational, tolerant, and courteous, but is not beholden to any particular culture or any particular religion? We have the courts being directed to have regard to certain matters, and then being directed not to give any legal effect to them. What does that mean? The Government has deliberately obscured that.

The Government should have told Ngāti Awa that those things are off the table. They might have been possible 15 years ago, when Sir Douglas Graham and others of his kind were desperately looking for something to replace the faith that they grew up in. But they do not work now. We have heard the National Party and New Zealand First say that they will no longer subscribe to the beliefs that they have appeared to subscribe to, and at least were voting for only 5 months ago. They have said they will no longer support references to the so-called principles of the treaty. They will no longer, in the case of the National Party, go along with the mythical partnership, or at least with having it referred to in law. It may have been an extremely powerful analogy, it may have been an excellent metaphor, and it may have been a worthy statement of morality, but it is no longer to be in the law. We will see more of that.

Dr WAYNE MAPP (National—North Shore): National supports this bill. I know that other parties in this Committee do not support the bill, and I guess I refer in particular to New Zealand First in relation to its explanation for not supporting the bill. I ask New Zealand First members this question: would they take the same approach if they knew that National were not supporting the bill? Would they be actually willing to say to Ngāti Awa, who have been in negotiation for many, many years, as National well knows: “No; go back to the beginning; spend another 10, maybe 15, years to arrive at a settlement.”?—notwithstanding the imperfections in the bill, and I acknowledge those, as indeed do my colleagues—because that is the choice we are really confronted with.

I just wonder whether New Zealand First is taking the luxury, so to speak, of voting against the bill because it knows that in reality the bill will be passed. It is one of those cases where one’s vote does not actually count, and therefore one takes a position for other reasons, knowing perhaps that in private conversations with Ngāti Awa, which I am sure various members of that party have had, one is saying: “Oh well, it is going to be passed anyway”.

We in National say that we support the bill because we support the process of completing treaty settlements. We want those settlements to be created—finished, in fact—by 2010. I appreciate that that is an ambitious goal. But if one intends to achieve that goal, one actually has to vote for the settlements as and when they are.

Certainly, we have voted for the amendments by New Zealand First in relation to the principles of the treaty. So when we vote, we are saying two things to Māori. We actually want to help Māori move forward—to move, as that well known saying expresses it, “from grievance mode to development mode.”

It is appropriate tonight to make reference to the Hui Taumata, which I guess is a review of how Māori have progressed in the last 20 years since the first Hui Taumata in 1984. In fact, one of the things one hears about in the current debate is a new degree of innovation. For instance, it is the first time I can recall in my lifetime that Māori themselves have questioned the relevancy of the Māori Land Court—whether it really serves Māori interests well in looking forward to the future.

That raises the question as to whether it is actually appropriate or sensible for Māori to hold on to every single scrap of land, valuable or not, or whether the process of development requires a more nuanced approach. I appreciate that Māori would say, and I am sure that Ngāti Awa would say: “But the land is our taonga. It is our foundation. It is our tūrangawaewae.”

Of course, that is true of some parts, but it is not necessarily true of every commercial property, for instance, many of which are referred to in this bill. So I would like to think that from the Hui Taumata the Government takes on board the need to reform, at a fundamental level, the structures and principles of Te Ture Whenua Maori Act, which was actually developed at another time that did not necessarily reflect the needs of the 21st century.

The second reason we support the settlements is around building the unity of our country. We know that our country has spent literally a quarter of a century in this area dealing with historic grievances, and I may certainly have mentioned some concerns about the historical record in relation to this settlement. But on a broader level I am aware that this whole settlement process is about coming to terms with, and addressing, our past as a nation. We actually have to get through that; we cannot just get mired in it or forever immersed in it.

So this is about building the unity of our country, which can only be achieved if we complete the settlement process, because in many respects that process is actually knitting together old wounds and fissures. That is another reason why I say to New Zealand First and, indeed, to the ACT party, which rarely votes for settlements, that if we want to heal the past we actually have to facilitate that healing. That means voting for settlements. That is what it means, irrespective of the various concerns we may have about particular issues.

I want to close on this point. Much of the debate tonight has been about the inclusion of the principles of the treaty. National has made it very clear that we wish to move past that debate, and we say that we should not be referring to the principles of the treaty any more in our legislation. That has led us into error. In particular, it has led the Labour Government into error by its obsessive references to consultation and partnership throughout its legislation of a general nature.

That situation can be solved only if we go back to first principles and look at the compact that was actually entered into in 1840. As I have said before, it is quite simple: firstly, the surrender of sovereignty or kāwanatanga, depending on which text one takes, that in essence are the same thing; secondly, the protection of property or taonga, which again are essentially the same idea; and thirdly, the inclusion of citizenship for all New Zealanders, irrespective of ethnicity.

Those are the foundations of our country; those foundations found our modern democratic State; and the treaty has to fit within that concept. So we should not be making specious references to dividing our democracy on the basis of ethnicity by the spurious use of the word “partnership”. That would end up harming our democracy.

In this speech I am giving a sense of where National will go. Firstly, we wish to conclude the settlement process, because it is designed to help Māori move forward. Secondly, we want to build the unity of our nation by looking at the basic principles of our democracy, which are about the equality of all our citizens. On that basis, we can build a united future together.

JUDY TURNER (Deputy Leader—United Future): I congratulate the previous speaker on his visionary last statement. As we finish up the Committee stage on this bill, and as I stand on behalf of United Future, I want to cut past all the technical issues that we have dealt with this evening and to look at some of the very basic questions that have been very simply and succinctly outlined in the summary paper.

Listeners, people interested in this bill, and the general public want to ask a few basic questions about what this settlement is costing us. The answer is $42.39 million, plus some cultural sites that are being returned, and a few gifts that are being made. Is any private land being transferred? No. Are public rights in any way affected by the Ngāti Awa settlement? No, apart from some camping licences given for a set number of days a year, and that does not deny public access to those waterways. Are any national parks affected? No. Does the settlement create any special rights for Ngāti Awa? Apart from a new legal mechanism called the Awanuiārangi II title, no, the situation is pretty much the same as it was before. Does Ngāti Awa have the right to come back to Parliament to make further claims about the behaviour of the Crown in the 19th and 20th centuries? No. Who benefits from all of this? All members of Ngāti Awa benefit, wherever they may now live.

The bill is pretty simple, and as we complete this Committee stage it is important to see that it has been worked through sensibly, and cooperatively. There are those who would have us fear future repercussions from this bill, and I think they are being mischievous. United Future would like to commend Ngāti Awa, those from the Crown’s working committee, and the Māori Affairs Committee for the work that they have done.

PITA PARAONE (NZ First): I want to respond to one or two things that have been said by recent or previous speakers, and to reassure this House, and those members who think that we are just exercising the luxury of opposing this bill because we know that it will go through Parliament, that that is not our reason for opposing it. From the outset our concern has been about two issues regarding this bill. If those two issues were taken from the bill, they would not affect the settlement in any way. One issue is the reference to the principles of the Treaty of Waitangi. Why is it included if there is no clear definition of those principles? We suggest to this Committee that the exclusion of that reference would not prevent this settlement from enduring, which is what it is all about.

More important, I take issue over what we in New Zealand First, and in particular, the Māori members, are concerned about in regard to the establishment, or recognition, of two new hapū based, clearly, on a geographic location of people instead of on the traditional concept of hapū recognition within Māoridom. This bill will open the situation up for other iwi who want to establish themselves in urban centres, particularly in Tāmaki-makau-rau and Poneke, to be able to do something. If we pass this bill as it is, in no way will the Crown be able to deny them that opportunity and that right. It does not surprise me that the member from the National Party should question the New Zealand First approach, given that the National Party has ignored the advice of its sole Māori member, whereas our party has a very strong Māori influence within it.

The previous speaker said that we need to heal the past. We in New Zealand First say that with the inclusion of references to the principles of the Treaty of Waitangi and the recognition of two hapū—Ngāti Awa ki Tāmaki-makau-rau and Ngāti Awa ki Poneke—we will not heal the past, because we will in fact be making sure that we repeat the mistakes of the past. In that regard we have real concerns that this settlement will not be as enduring as people would like us to believe it will be.

From the beginning of this term of Parliament we have insisted that the principles of the Treaty of Waitangi be defined or explained—from 27 July 2002, which was the day of the last election, to this point in time. In spite of the numerous requests made by the Rt Hon Winston Peters and other members within New Zealand First to the Government to define those principles, it has been silent on that matter.

In conclusion, we say this bill must be based on issues that will be enduring not only for the Crown, but, more important, for Ngāti Awa. The fact that New Zealand First is taking the position of opposing the bill is not because we have any disregard for Ngāti Awa or for the intent of the bill, but because we have concerns that although the solution to this matter lies in the hands of the Minister and this Government, they will not exercise that opportunity. If the reference to the principles of the treaty was excluded, the bill would not lose any of its relevance in terms of the concerns that Ngāti Awa have.

Hon GEORGINA TE HEUHEU (National): I appreciate the opportunity to say a few words on clauses 1 and 2. I want to support my colleague Dr Wayne Mapp as he confirms the support of National to get these historic grievances out of the way. I say to those members in the Committee who are a little bit new to this process, and maybe to those who are not quite so new, that we need to remind ourselves that Māori are continually being told to stop looking at the past, but the reality is that as long as people carry a sense of injustice, they will always look to the past, and they will not be able to move forward until that injustice is put right. That is why these claims are so important.

I can understand the position of members of New Zealand First and their worry about the insertion of references to the principles of the Treaty of Waitangi, because we in National certainly have a similar concern. But I have to say I am disappointed that, at this point in time, they would see fit to vote against the third reading, although I am not sure whether they will. I think that would be a great disappointment, particularly as their Māori members know better than most how important it is that Māori are relieved of the burden of a feeling of injustice. Yet they will never be relieved of that burden if the majority of this Parliament does not vote for these settlements.

I appreciate that the Ministers in the chair, including Mita Ririnui, answered all of our queries and our requests to get to their feet, which is, frankly, somewhat of a change in a treaty Minister. I cannot remember the previous Minister getting to her feet in quite the way the current Minister, the Hon Mark Burton, has. We appreciate that, but I reiterate to the Minister the potential for controversy and difficulty unless we firmly keep in our minds the fact that each settlement is unique to the particular tribe that is settling.

That is why the member Judy Turner should do some homework about the issue about hapū. In our raising the issue with the Minister there was no sense of mischief at all. If members understood the basis on which hapū are traditionally viewed, they would completely understand why New Zealand First and National felt compelled to make the comments they did. There should be no sense that any tribe yet to settle is in any way pre-empted in relation to what they feel and believe should be the definition of who the beneficiaries of their settlements are, what they want to be recorded as being the hapū of their particular iwi, and so on and so forth. So I ask the Minister to keep a keen eye out to make sure that the Office of Treaty Settlements is not bringing him things that could cause problems in the future. We certainly have our reservations about the capability of that office to understand the dynamics of Māori, the tribe, and the things that are important.

In any event, as the Minister was so responsive this evening, I am depending on him to make sure that these things remain to the fore. The things that the Ngāti Awa people have agreed to are unique to them. The treaty settlement framework is being generally followed, and that is fine, but when we get things like whether adopted children or whāngai are to be included in settlements, and whether new hapū are to be added, those matters become very, very serious, and tribes that follow will not be told what should be in their settlements in regard to those things.

I am disappointed in New Zealand First’s stance. I have always made the comment in relation to settlement legislation that it is all very well for ACT to criticise, but where is ACT’s answer? I do not see any.

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

Motion agreed to.

Clause 1 agreed to.

Clause 2 agreed to.

House resumed.

Procedure

Bill reported with amendment.

A party vote was called for on the question, That the report be adopted.

Ayes 96

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

Noes 22

New Zealand First 13; ACT New Zealand 9.

Report adopted.

Bills

Animal Products (Dairy Products and Other Matters) Bill

Second Reading

Hon ANNETTE KING (Minister for Food Safety): I move, That the Animal Products (Dairy Products and Other Matters) Bill be now read a second time. The bill provides for the regulation of the dairy industry under the Animal Products Act of 1999, and repeals the Dairy Industry Act of 1952. The safety and trade of dairy products are matters that currently come under the Dairy Industry Act, but that Act does not provide an adequate legislative framework for ensuring product safety outcomes or an adequate legislative framework to facilitate trade in a risk-based management environment. The prescriptive and inflexible style of the Dairy Industry Act is inconsistent with the enabling style of legislation that is being used in modern risk-based legislation such as the Animal Products Act.

There are two overarching public policy objectives for the bill: to manage the risk to human and animal health from the consumption and use of dairy products, and to facilitate the entry of dairy products to overseas markets. The food safety administration in New Zealand is moving towards an environment based on the principles of food safety risk management, in line with international trends. The bill will allow the dairy industry to operate in a risk-management environment, and will provide greater consistency for the rest of the food industry. The bill also aims to facilitate the entry of dairy products to overseas markets by providing the controls and mechanisms needed for market access and the giving of official assurances.

The bill was referred to the Primary Production Committee on 29 June, 2004. Submissions closed on 23 August 2004, and the bill was reported back to the House in September. This bill is supported by all parties in this Parliament. It is necessary to have this bill passed so that we can ensure that the new contracts and initiatives are in place by the beginning of the season. It is highly desirable to have this legal framework in place to make it easier for the dairy industry to accommodate new technologies and processing techniques.

I commend this bill to the House, and I thank the members of the select committee, who looked at it in detail and reported it back with no change.

PHIL HEATLEY (National—Whangarei): The National Party will be supporting this bill. We appreciated being able to participate in the select committee process and to ask the intelligent questions at the committee. Labour members—who do not have any constituent MPs who represent rural or provincial New Zealand—were unaware of the issues facing the dairy industry. National members were able to talk to people in the dairy industry about what is familiar to us and what is familiar to them as an industry.

Debate interrupted.

The House adjourned at 10 p.m.