Mapp Wayne: Ngati Awa Claims Settlement Bill — In Committee Procedure 
Mapp Wayne: Ngati Awa Claims Settlement Bill — In Committee Procedure 
[Volume:623;Page:18813] 
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) Ngati 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 hapu of Ngati 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 hapu 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 Maori 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 Maori 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 Maori 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.