Franks Stephen: Ngati Tama Claims Settlement Bill — First Reading 
Franks Stephen: Ngati Tama Claims Settlement Bill — First Reading 
[Volume:608;Page:5656] 
STEPHEN FRANKS (ACT NZ) 
: 
 I am pleased to rise for the ACT party to confirm that we will support the Ngati Tama Claims Settlement Bill going to the select committee. We are well aware that in 1860 the Governor essentially dishonoured the Crown and broke faith. By the framework for confiscations it created an environment in which for many Maori it became a natural response to rebel and take up arms. 
On the other hand in referring the bill to the select committee we do not accept the self-denying role that select committees give themselves in looking at these treaty settlements. We are not represented on that committee and we will be looking when the bill comes back to the House to see whether the committee has in fact looked at this bill with the sense of responsibility that committees should always have in examining how the House uses its legislative power. 
We are concerned about a number of features that are not self-explanatory and I will run through them quickly. We would want to see a select committee report that did not simply recite that it had not gone into a number of matters because it had only a yes/no recommendation to make. It is the view of the ACT New Zealand party that when a bill is intended to influence the Crown and the Government and in effect to pin or attach the honour and good faith of Parliament to some relationship that may go on for 50 or more years it is not proper for a select committee to come back and say that it is uncomfortable without expressing why or considering what would have made it comfortable. This is not the same position as when a select committee approves a treaty entered into under the prerogative powers of the Crown with an external party. This is not the situation of the Crown in dealing on behalf of all New Zealanders with a foreign power where one can assume that the Crown would have no conflict of interest. This is a political settlement. It is a settlement by the agency on behalf of all New Zealanders with some New Zealanders. The select committee should look at it on that basis. It is inappropriate for select committee members to constrain themselves. 
I refer in particular to the apparent ignoring in this pattern of settlement of some ancient wisdoms including wisdoms that Maori signed up to when they signed up to the law of England in 1840. One of those is a rule against perpetuities. I see nothing in this bill that reflects the old wisdom that finally settled out as the rule against perpetuities. I see nothing in this bill that reflects an acknowledgment or a recognition that pointing parties to a settlement towards perpetual future conflict is not doing either side a service. There are provisions in this legislation that I cannot understand now and that I am quite certain will not be able to be understood in 25 years. There are requirements for long-term relationships between consent authorities and Ngati Tama that will undoubtedly lead to a complete mismatch of expectations. 
Phrases like “have regard to” without any indication of whether that is intended by the Crown to create a difference in outcome or the extent to which it must “have regard to” or the various concerns that it has to take into account are just calculated to postpone the hard issue. If Parliament is settling this matter we should settle it. I am concerned that we have seen 2 years in effect pass since this treaty agreement was made; a number of these arrangements could have already been settled. 
For example the explanatory note states that the Crown will undertake that the Ministry of Fisheries “will consult with the advisory committee concerning proposals for the commercial taking of those species and that in considering any such proposals the Minister of Fisheries will ensure that the customary non-commercial interests of Ngati Tama are recognised and provided for:”. Why is that still something to occur in the future? It is quite plain that there will be a disagreement about the effect of that. It is quite plain that that will need attention. It will result in Ngati Tama necessarily looking to the past instead of to the future. It will result in some Pakeha looking at Ngati Tama as potentially undeserving recipients. Some of these matters—a whole list of them—should have been dealt with in the time we have had so that this bill could have been a record and a sealing of a deal that any one of us could understand. 
We see the same thing in a proposal that the Crown will “include in the consultation process for the next regular review of the fisheries regulatory measures any proposal from the governance entity to prohibit commercial fishing using trawl or set nets in a specified area:”. Why have those matters not been dealt with in the time that has already been spent on this? The same applies to the taking of undersized tuna and to a non-commercial interest in a paua fishery. This House should not be asked to vote on matters like that which could be settled; we are leaving it to future generations to have fresh grounds for grievance. 
What are these acknowledgments? I read in the schedules that the Crown acknowledges things. I do not know what those acknowledgments are meant to mean. I have the horrible feeling that they are intended to hold out to Ngati Tama an inducement to sign on the basis that an acknowledgment means something more than its strict legal meaning which is simply that we know that the Government has said it. The bill mentions acknowledging statements not acknowledging the facts underlying those statements. Are those weasel words? If we are really settling treaty grievances it should be a time for ending weasel words. 
I am also deeply concerned that each time the treaty is mentioned and the breaches of the treaty that this legislation is to settle we also have reference to breaches of the principles of the treaty. Ngati Tama should know that no one in this House has been able to extract from this Government—from the representatives of the Crown—an authoritative statement of what the principles of the treaty are. I see in this bill what I think is a straightforward and common-sense acknowledgment that this is being done—the reference to breaches of the treaty. For example clause 6(2)(e) states: “the confiscations were wrongful and in breach of the Treaty of Waitangi”. But it does not stop there. It goes on to state: “and the principles of the Treaty of Waitangi.” yet no one knows what those are. Why are we legislating in a fashion that is so calculated to perpetuate uncertainty and potential grievance? It can only mean that the Crown is saying that there is something more than the treaty yet the Crown will not say what that something more is. That is not the right basis for a settlement. 
ACT knows that it will be castigated. We are concerned about integrity in legislation. We are concerned that the same standards expected of legislation relating to Pakeha be applied to that relating to Maori. We should not be setting the scene for future grievance. What for example is being acknowledged in “failure to acknowledge the mana and rangatiratanga of Ngati Tama”? There is dispute among scholars distinctions are made even in the findings of the Waitangi Tribunal and there is considerable uncertainty about the use of the term “mana” historically and in the present. Why are we using terms unless we are prepared to define them? 
I am also concerned that in a number of places this bill seems to treat the Crown and Parliament as if they were the same. Constitutionally that is not the case. Maori signed a treaty with the Crown yet here we have Parliament apologising for “the Crown’s actions with respect to the West Coast Settlement Reserves Act 1881” or other acts of Parliament—which is not the Crown. Unless there is some subtle distinction there that is an inappropriate use of language. I believe that the select committee should be looking at each of these matters. 
Finally I do not want to be here at the second reading only to find oblique references to tension with Ngati Maniapoto and no explanation of what the implications might be. It may be that there are people in this House who have a good idea of just what those implications may be but when I hear members from the Government side including my colleague Nanaia Mahuta suggest that Ngati Tama may have to come back to this House because of the implications of the Ngati Maniapoto claim I am very concerned indeed and I want to know that the select committee will properly elaborate on the issue in its report.