Franks Stephen: Ngati Awa Claims Settlement Bill — In Committee Procedure 
Franks Stephen: Ngati Awa Claims Settlement Bill — In Committee Procedure 
[Volume:623;Page:18843] 
STEPHEN FRANKS (ACT) 
: 
 I rise for the ACT party to address Part 5 of the Ngati Awa Claims Settlement Bill “Commercial redress properties”. As I understand it they are primarily motor-camp areas parts of the Kaingaroa 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 Maori 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 Ngati 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 Ngati 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 Ngati 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 Ngati 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 Maori 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 Ngati Awa land. That tells me that these rights of access will persist as a statutory matter even if Ngati Awa has rid itself of all the land. Why was it not left to Ngati 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. Ngati 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 Ngati Awa. This is treating Ngati 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?