Franks Stephen: Aquaculture Reform Bill — In Committee 
Text is incorporated into the Bound Volume 
Franks Stephen: Aquaculture Reform Bill — In Committee 
[Sitting date: 14 December 2004. Volume:622;Page:17759. Text is incorporated into the Bound Volume.] 
STEPHEN FRANKS (ACT) 
: 
 Part 6 as has been clearly explained by previous speakers sets out a large new section for Te Ture Whenua Maori Act and gives a whole lot of new roles and responsibilities to judges. Essentially they are the sorts of things that practising lawyers—certainly lawyers from general practice—would be very familiar with such as the bitterness that is engendered in disputes over unearned money and over undeserved money. Anyone who has ever practised in a family practice concerning wills and estates knows just what happens when there is a bunch of unearned money at stake. They know how intractable the dispute is and how little regard people have for assets when they would really rather poke one another in the eye. So it is no surprise that we get a really extensive range of remedies and proposals in this Part 6. 
I am interested in the mediation proposal there. First I do not think it will work because people are not looking for solutions; they are actually looking to score points off one another. As they know deep down that they did not earn or deserve the money they are quite willing to see it squandered in dispute. So mediation may be a bright idea but it is much more likely to be simply the precursor to litigation. But on looking at that issue I see that a mediator in this case can be appointed not as a person with experience in tikanga but as one with the skills and experience to undertake mediation on issues arising under Part 5. Well Part 5 is the part we have just dealt with that sets out the entitlement conditions for the windfall. Part 5 for example states that by 2014 the Government must have provided equivalence in value to Maori of 20 percent of all the existing aquaculture areas. Now when one looks at that and thinks of what sort of expertise that mediator will have to have under the proposed new section 26V of Te Ture Whenua Maori Act one is driven back to wondering just how anyone can have that skill and experience. 
Part 5 is so badly drafted that it is actually hard to know what Part 6 will be looking for. Part 5 where it talked about valuation talked as if valuation was valuation—stupid! Well I ask: valuation when? When this mediator is going to look at it will the value be determined as at 2014 will it be determined as at the date that aquaculture areas are created or will it be determined as at the date that tendering or any other allocation process sets a value? Will it be determined when the aquaculture areas are in full production or is this an unimproved-value calculation? 
Sandra Goudie 
: It will go for the maximum. 
STEPHEN FRANKS 
: It will go for the maximum—obviously. What it will do is provide an enormous range of issues on which guidance will be needed: first as to matters of law before a mediation can be properly conducted and second on all the juicy opportunities there are for the beneficiaries of this completely undeserved windfall to poke one another in the eye. Even then mediators will have to go back and look at the underlying facts because no one can tell from this woefully badly drafted and badly conceived piece of law just what kind of valuation is concerned. Why did someone not just look at the Rating Valuations Act? Why did someone not take a slight bit of interest in going behind the slogan and asking what would happen in practice? Just what kind of valuation is expected? Is it on a going concern bare land or a development potential? What about the situation where the area has a reserve or where the underlying allocation is still in dispute? We do not know. But there will be rich pickings in this and there will be rich pickings because this legislation has no principled foundation. 
It is a bad-faith piece of work. It shows bad faith on the part of Maori who have taken advantage of a wimpish Government. I would like to test whether Arnold Schwarzenegger’s term of description for the Democrats would be unparliamentary in New Zealand. He called Kerry and his colleagues “girly men” and I think that what we have seen here is a bunch of girly men fronting up to some pretty tough negotiators—