Brownlee Gerry: Ngati Tuwharetoa (Bay of Plenty) Claims Settlement Bill — Instruction to Committee In Committee 
Brownlee Gerry: Ngati Tuwharetoa (Bay of Plenty) Claims Settlement Bill — Instruction to Committee In Committee 
[Volume:625;Page:20209] 
GERRY BROWNLEE (Deputy Leader—National) 
: 
 That was an interesting speech from Stephen Franks. It went to the heart of the issue of what the principles of the Treaty of Waitangi are and what references to those principles in any law mean. 
It is interesting that even today in the select committee we were discussing with the Office of Treaty Settlements an interpretation of the principles set out by the Crown Minerals agency. We discovered that many Government agencies have their own set of principles that are to be applied to the Treaty of Waitangi. There is no doubt that it is appropriate for the Government at some time in the future presumably immediately after the next election when Don Brash is the Prime Minister to go through an exercise of removing those references from legislation where they have multifarious meanings—where they have meanings that cannot be considered consistent from one piece of legislation to another. 
The question that arises here is whether we should do as New Zealand First would have us do and remove from clause 14 references to the principles of the Treaty of Waitangi. I think we have to be very careful about a blanket removal of such statements particularly if those statements in some way constrain an activity that is normally available to a claimant group. That is exactly what is in clause 14. Effectively it means that Tuwharetoa Bay of Plenty cannot come back to Parliament using a Treaty of Waitangi grievance or picking up on any principle of the Treaty of Waitangi that may be garnered from the smorgasbord of principle opportunities scattered throughout our law to have another go at settlement. That is understood by Tuwharetoa Bay of Plenty. That is part of the agreement that has been reached with the Crown. In that circumstance I am of the view that by referring to the principles of the Treaty of Waitangi we are simply extending the concept beyond just the grievance process that might be taken to a tribunal into a statement that says: “Don’t try using any of those other options that many laws currently provide to you.” 
All that National members want to make clear is that at the same time we will support encourage and lead moves to get unnecessary reference to treaty principles out of legislation. The question is whether it is necessary here. In the uncertain environment that we have at the moment we can have the Office of Treaty Settlements happily tell us that although numerous Government departments will have their own interpretations of what the treaty principles mean it is OK just to fire them into bits of legislation here and there. 
In this case the legislation is very clear and is worth reading. Clause 14(a) states: “… every claim (whether or not the claim has arisen or been considered researched registered notified or made on or before the settlement date) that Ngati Tuwharetoa (Bay of Plenty) (or a representative entity) had at or at any time before the settlement date or may have at any time after the settlement date that—(i) is or is founded on a right arising—(A) from the Treaty of Waitangi … or the principles of the Treaty of Waitangi …; or (B) under legislation or at common law …; or (C) from fiduciary duty;” and so on. Effectively avenues that could exist at the moment in the law for another look at a settlement are closed off by that coverage. 
It really points to the need for Crown Law to do the major exercise of going through legislation. I hope the Rt Hon Winston Peters’ bill does make the floor of the House. National members will support that. We want it to go to a select committee. I cannot understand why the man has never sought leave to have it come before the House but he does not really want it to come up before the election because he knows that it will be treated in a fairly discursive manner by the current Government and it deserves a great deal better treatment than that. So the new Government will pick up that concept. It will have Crown Law go through legislation fastidiously looking for places where there is blanket reference to the Treaty of Waitangi. 
The incident I mentioned before was that of a settlement bill that dealt with the potential for the particular iwi to claim mineral rights. It said that in future Crown Law had to deal with that iwi according to the principles of the Treaty of Waitangi. The question was asked of it as to which principles those were. The answer was the principles that that department has established as being relevant to it in relation to the treaty. Well that really means that some bureaucrat somewhere—poor fellow or woman whomever it might be—has an awfully large duty upon him or her to respect not only the interests of the settling party but the wider interests of the New Zealand taxpayer the New Zealand citizen. I think that is unacceptable. Parliament should be much more prescriptive than that. 
In conclusion—and thank you Mr Chairperson for the extra time—I just want to make it clear that National is supporting the statement in this clause about treaty principles because it is a restriction on all other references to the principles of the Treaty of Waitangi that are scattered throughout our law. We understand what New Zealand First is trying to do. We applaud it for calling to attention the extent to which reference to treaty principles litters our law but we feel strongly that by this statement being included here greater protection and greater clarity are given to the finality of this particular settlement. If settlements are to be full and final then there should be no opportunity in those settlement bills for another look at them. Without the specific exclusion of reference to the principles of the treaty then it is fair to say there could be just a glimmer of opportunity for a successive generation of Tuwharetoa Bay of Plenty descendants to have another look at it.