Ngati Tuwharetoa (Bay of Plenty) Claims Settlement Bill — Instruction to Committee In Committee 
Ngati Tuwharetoa (Bay of Plenty) Claims Settlement Bill — Instruction to Committee In Committee 
[Volume:625;Page:20188] 
Ngati Tuwharetoa (Bay of Plenty) Claims Settlement Bill 
Instruction to Committee 
Hon TAITO PHILLIP FIELD (Minister of State) 
: 
 I move  
That it be an instruction to the Committee of the whole House on the Ngati Tuwharetoa (Bay of Plenty) Claims Settlement Bill 
that it take the bill part by part 
. 
Motion agreed to. 
In Committee 
Preamble 
SIMON POWER (National—Rangitikei) 
: 
 I look forward to making a contribution during the Committee stage on the Ngati Tuwharetoa (Bay of Plenty) Claims Settlement Bill. The Committee will recall that there has been some debate at various points over different translations with respect to the preamble and the like. In fact a reasonably prolonged discussion was held in the Maori Affairs Committee on that exact point. That is why we see at this point a reasonably large portion of the preamble having been struck out. This is a portion that is largely contained in te reo. It goes on for some pages. Not until we get to page 21 of the bill do we find the new unanimous preamble to be contained in the legislation. I do not profess to be an expert in matters Maori but it seems to me that we as a Parliament have worked our way through both in this Chamber and outside it to ensure that a Maori version of the preamble appears together with its English translation. The portion of the preamble that refers to the conflict in the Eastern Bay of Plenty is contained on page 33 some 12 pages on from the start. 
I welcome the arrival of Georgina te Heuheu to the Chamber to take a call on matters relating to the conflict in the Eastern Bay of Plenty. I am sure that any contribution that she and Dr Mapp will make will dwarf my small contribution in this process. 
There is no doubt that I am in a position to signal National’s ongoing support of this legislation but we will during the Committee stage be raising some issues from time to time that have captured the imagination and the attention of those in the National Party who sat on the Maori Affairs Committee. With that short introduction I welcome the contribution to follow by Georgina te Heuheu. 
Hon GEORGINA TE HEUHEU (National) 
: 
 I am very pleased to follow on from my colleague and contrary to his suggesting that this will somehow be way above what he has suggested that of course is quite wrong. In the National Party caucus we are all committed to the resolution of historic grievances and so each and every one of us basically— 
Simon Power 
: Who was that member who was known for doing all the work? 
Hon GEORGINA TE HEUHEU 
: That is right Douglas Graham basically paved the way in this area. He formulated and developed a treaty settlement framework that has stood the test of time and but for this Government with its tendency to push the boundaries further than what the New Zealand public really want that model is basically in place here in the bill before us today. 
As I say we support this debate as we will be supporting the passage of the bill. Two or three issues arose during our consideration of the bill but by and large one of the issues that caused quite major concern arose in one of the schedules in which the Ngati Tuwharetoa Bay of Plenty people wanted to have their association with the geothermal resource recorded in the bill. Fortunately the Maori Affairs Committee as a whole decided that that probably was not appropriate—and I will come to the reasons for that in a minute—and that this was to be a new schedule. It is now no longer in the bill because what the claimant tribe wanted can be adequately accommodated in the deed of settlement. 
The reason that this bill I suppose caused a unique difference was that Ngati Tuwharetoa Bay of Plenty is one part of the total Ngati Tuwharetoa tribe. I am Ngati Tuwharetoa and I hail from the centre of the North Island which is often referred to as Ngati Tuwharetoa the principal part of the tribe. This issue has not arisen in any settlement that we have had to deal with before whereby one has the same stories applying to both ends of the tribe but clearly sometimes the versions do not always coincide. The other issue is that as much as Ngati Tuwharetoa Bay of Plenty may have wanted to tell the main Ngati Tuwharetoa story and have that put into legislation it was felt by the select committee and by National in particular that that might pre-empt the way in which claims were settled when it comes to the settlement of the Tuwharetoa claims where I hail from and there was no reason at all to be pre-empting anything that might be done in respect of any subsequent settlement. 
So that was one issue and I certainly will talk on that in more detail as we go on with the Committee debate. Another issue arose relative to the geothermal resource itself. We had submissions from the Pukaki Trust in the Bay of Plenty which will be looking to do its own settlement. It actually owns a piece of land in which the geothermal resource sits. The trust had some very clear objection to Ngati Tuwharetoa Bay of Plenty being given a statutory acknowledgment over that resource particularly in so far as the resource sits on land that the trust owns. I think that it does in a way highlight a problem that may or may not arise in the future and which the Government should give some attention to. It is that essentially while a group may indeed rightly lay claim to a particular resource in terms of kaitiakitanga or sense of stewardship over that resource the reality is that it will be the case that others within the same rohe or boundary will also be able to lay a similar claim. 
Where neither of those groups has an ownership stake in the land possibly no problem arises but when one of them actually owns the land through which the resource runs then clearly it is a problem. If I own a block of land and there is a resource—in this case a geothermal resource—sitting plonk in the middle and some other group not my tribe says: “Well we’ve got a stewardship right or a cultural association with that resource we want that recognised by way of a statutory acknowledgment.” I would then say: “Hang on it’s sitting on my land.” How does that sit? We had some discussion on this. We were assured that no one particular group is pre-empted from also seeking a statutory acknowledgment over a particular resource a particular site or a piece of land just because another group already has one. That is what we are told. We have to have faith I suppose. I do not know what will happen if one day an issue arises and we find that the statutory acknowledgment granted to one group somehow pre-empts the other group from also being able to raise his or her particular interest in the resource as well. 
So that was another issue that has been dealt with. As usual we had the issue around doubts about sufficient mandate and doubts about sufficient agreement on the deed of settlement itself. National and I think New Zealand First as well regularly raise the issue of how much efficacy there is in the support of a people for a settlement when one is not getting what one might say would be optimum buy-in and that would be at least above 50 percent. The long-term issue with this problem is that none of us would want to see any of these settlements revisited at some future date because some section of a tribe could come back later and say: “Well look there was only a 48 percent buy-in to the settlement and that wasn’t us we’re part of the balance of the tribe that didn’t agree.” 
So I implore the Minister to be conscious of this issue and to make sure the Office of Treaty Settlements is doing everything it can to ensure increased buy-in both for mandating and for ratification of the Government’s entity and particularly for deeds of settlement. Because what we all want to be certain of as parliamentarians is that once a settlement is completed there are no legitimate grounds for bringing it back to the House. 
Other issues that were raised when we were considering the bill during the whole select committee process were things like the fact we are now translating these settlement bills and having quite a considerable amount of legislation in te reo. That in itself adds a focus for debate but the issue we want to be sure of is that the more te reo is used in legislation the more care is taken by those concerned with putting true meanings into the legislation to really ensure that the Maori matches the English. 
PITA PARAONE (NZ First) 
: 
 I stand on behalf of New Zealand First—which as I have said before and will say again is the only non - politically aligned party in this House—to speak on this bill in the Committee stage. I also want to take the opportunity to thank my whip for giving me this time because I know all the people who are caught up in the Auckland gridlock will be listening to this debate. Mrs Rene Peach who lives in Cambridge will be listening as well and I would just like to say tena koutou. 
I want to reiterate our position with regard to the inclusion of the words “the principles of the Treaty of Waitangi” particularly where they are set out in clause 14(a)(i)(A) of this bill. During the second reading I indicated on behalf of the New Zealand First members our support for this bill in spite of the inclusion of the words that I have just mentioned. I should say that that actually caused some surprise to both officials and some members in the House at the time. 
Having said that I just want to talk on the preamble and in particular on Supplementary Order Paper 367 sponsored by the Minister in the chair the Hon Mark Burton in terms of an amendment to recital (32) of the bill. The Government-sponsored Supplementary Order Paper seeks an amendment to the English text of that recital. On perusal of the Maori text I note that no amendment to it is sought. I am sure that that does not mean the Maori text is right but in order to ensure there is a true translation of the English text I have proposed a Supplementary Order Paper. This may be seen to be a bit premature given that the Supplementary Order Paper has not been put before the Committee for consideration. However I seek that in recital (32) of the Maori text the words “i waenga te rohe o Kawerau” be substituted for the words “ki Kawerau”. 
Some people may say that that is being just too particular but I think it is important not only for this Parliament but for this nation that the translations of the two official languages should match. I suspect that in the future students of the language will see legislation that has been passed in the Maori language as a learning resource. So I would like to think that the Committee will give consideration to that proposal. Although I would like to see the whole bill written in Maori given some of the occurrences in the recent past when the Maori language has been introduced into previous bills I think this is a small but very important step not only for this Parliament but also for our country in terms of recognising the tangata whenua language of New Zealand. It is very interesting to note as I look across at the Government benches that I am not sure whether there is anyone sitting there who has the ability to speak or understand Maori. It is important that I make these points because when future bills of a similar nature come before the House we will be asking that the Maori language be used. Hopefully it will be used more fully than it has been in this bill so that there will be no doubt in the minds of all New Zealanders that we are a country that recognises and utilises the two official languages—that is Maori and English. 
METIRIA TUREI (Green) 
: 
 The preamble contains a description of the Compensation Court process that was established to deal with the return to Tuwharetoa of wrongly confiscated land. The preamble talks about how approximately 87000 acres of confiscated land was divided into blocks. The Compensation Court after hearing various evidence decided to return some of that land. It did so by returning a couple of blocks. One block was given to 10 people and one block was given to 13 people. Those awards were made on the basis that those people were the rightful owners and were not implicated in the so-called rebellion. At the time Tuwharetoa considered that the returned land was to be held in trust for the iwi as a whole. But because of the nature of the Compensation Court—the cultural milieu out of which it was developed—there was in fact never any mention of those people holding the land in trust and those blocks were granted to those 10 and 13 people respectively as individual owners. 
The preamble goes on to describe how difficult that was and what that meant for the iwi. In fact it meant the further loss of the land by placing the land effectively under individual ownership rather than collective ownership and enabling it to be on-sold. One of the signals that that shows for all of us is that when those processes by which restitution is made are developed in isolation from the tangata whenua for whom the restitution is designed or when the processes are developed in isolation from the tikanga and the values of the people affected huge mistakes are made. Part of making the mistake is identifying and picking winners and leaving losers. The Compensation Court process established in 1863 was a clear and classic case of the Crown establishing a process without tikanga and consultation then leaving Maori bereft when they were supposed to be restored. 
What I would like to see and be made clear in this Committee tonight is the fact that we are again seeing that exact same process. The process for restitution of wrongs done in the past through Crown settlements and via the Office of Treaty Settlements is again a process that has been established within the cultural milieu of the Government of the time. It does not involve and never has involved any real consultation with the tangata whenua. It is not based on tikanga; it is based primarily on the policy of Governments and the desires and needs of Governments. It is not based on the real justice that should be attributed to the tangata whenua or to the mana whenua who have been wronged whose land has been taken wrongly and who deserve to have justice restored to them. It is just one example of how the same process is again occurring here in the Tuwharetoa bill. 
I refer now to submitters who came to the Maori Affairs Committee such as the Ngati Rangitihi and their story about their attempts to do the best for their own people and to find a way to develop and progress their claims through the mechanisms available to them—established by Governments over time and supported by this Government—like the Waitangi Tribunal and the claims process. I refer to their efforts to ensure that the land within their rohe is protected from the settlements that are occurring around them particularly that of Ngati Awa and of Tuwharetoa as well. The Crown through its settlement process has picked Tuwharetoa as a winner in this regard over this area of land so that Ngati Rangitihi have been unable to secure funding even for their research. Ngati Rangitihi told the select committee that Ngati Awa had received $3 million and Tuwharetoa $1.5 million to help with the research of their claims yet they were entitled only to $200 per witness to help with witness costs and no money to help them with their research. 
If Ngati Rangitihi cannot get support even to research their claim then their losses and the injustice done to them as an iwi within that area cannot be properly dealt with through the Government’s own processes. Therefore they are being robbed of their capacity and of their access to the justice system through the settlement process and through the process of restitution and restoration of lands to the iwi from whom it was taken. We are again seeing Government process being used to pick winners and identify losers which leaves those who are not yet ready to claim those who cannot yet secure funding yet to prepare research in order to pursue their claims and those who are choosing alternative paths to settlement again to be without justice. 
Dr WAYNE MAPP (National—North Shore) 
: 
 I was going to speak on the preamble and perhaps the philosophy that underlies the preamble because it has now become pervasive. It really speaks about the attitudes that the Crown has towards Maori and that perhaps some Maori might have to themselves and their position in life. 
Recital (33) of the preamble refers to the loss of traditional lands through confiscation Crown purchases etc. and includes and I quote directly: “such as the coast and the swamp that traditionally provided food medicine and shelter.” Further on recital (40) refers to the fact that lands had been drained—the drainage of the Rangitaiki wetlands. That seems to imply that Maori are a Stone Age people—that they were at the time of confiscation and are now. We clearly know that that is truly absurd. Yet the preamble almost envisages that. Surely we would recognise—and given that we are lawmakers here legislation and preambles ought to be careful about this—that just as anyone who is a landowner in the modern world seeks to develop the land for economic advantage where it is appropriate and desirable we would reasonably expect Maori to have done the same themselves. 
For instance could it really be considered a loss today that people have lost the use of a swamp for food medicine and shelter? People do not live today in raupo huts made from raupo gathered from a swamp neither do they primarily use swamps for food. In fact what happened right throughout the Hauraki Plains the Eastern Bay of Plenty and many other parts of New Zealand is that those wetlands were reclaimed—admittedly not by the Maori owners from whom they were confiscated but by subsequent settlers—and turned into productive dairy farms which is arguably one of the world’s most profitable uses of such lands. Maori who own such lands do the same themselves; one has only to look at Northland around Ruawai to see the reality of that. We should not make references in these kinds of preambles as if Maori were still a Stone Age people and lamented the loss of resources that a Stone Age people would use. Let us recognise the benefits of developments. In fact the ILO conventions that I know the Green Party is very fond of talk about the right of development. Development does actually mean using new technology. Similarly with the Hui Taumata; it would have had exactly the same values. 
I say to the Government that when it is preparing its preambles let us not have a rose-tinted approach to a past when people lived in a state of nature—if one will—but let us talk about how people really live and how they want to live. Let us talk about aspiration; that would be a lot more relevant and dare I say it would have a lot more credibility amongst the wider community. When the public read about this kind of thing in our legislation—and they do; it gets out there generally—frankly it causes frustration. It causes people to wonder why we are so focused on the past as if it was frozen rather than looking forward to development. 
Hon MARK BURTON (Minister in charge of Treaty of Waitangi Negotiations) 
: 
 I shall take a short call to respond briefly to a number of points made by members. 
Firstly Dr Mapp’s comment about the preamble and the historical account missed the point that this is an agreed historical account of what was. It records what was lost to the people at the time and arguably records therefore in a sense his point that the opportunity for such development that he talked about was lost to those people as a consequence. So it is not a lamenting of that in the sense of wanting to go back to it but rather simply a matter of recording clearly that that is the nature of what was lost. 
In response to the member from the Green Party who talked about access to funding I think the matter she raised is far more complex than she said in terms of some of the issues within the group of people concerned. But it is important to note that the funding she referred to was not direct Government funding; it was Crown Forestry Rental Trust funding and that does put a slightly different complexion on it. 
To go back to the comments from the first member who spoke the Hon Georgina te Heuheu I have to comment on two points. Firstly on the encouragement of optimum participation and mandating I absolutely agree that through each of the participatory processes everything that can be done should be done to encourage participation but we cannot require that people exercise their choice. As legislators we must be confident that the opportunity did exist genuinely easily and freely for those who are eligible to participate in votes and to have their opinion recorded and heard. 
Sitting suspended from 6 p.m. to 7.30 p.m. 
Hon GEORGINA TE HEUHEU (National) 
: 
 In relation to the preamble I wanted to take a call to support my colleague Dr Wayne Mapp in so far as he urged that the Government recognise that the preamble was largely the wish of the iwi concerned which is what I took the Minister to say. 
I still think that Dr Mapp had a very valid point. I know from my short experience as an Associate Minister in charge of Treaty of Waitangi Negotiations to the Hon Sir Doug Graham that the preamble is extremely important to a claimant tribe for the reason that these settlements are important. For nearly 140 years for some of them they have carried this hurt because that is the way a lot of them see it. They suffered this hurt so long ago and have tried for generations to get redress to find some way of securing justice. Basically they see the preamble as giving credence to the hurt they have carried for many years so it is understandable that all preambles will first of all state the history as has been recounted by the claimant tribe but also will probably reflect a lot of the hurt and the sense of injustice that most tribes have carried since the 1860s. Of course that is why we have the preambles couched in the way they are. 
That is understandable and I appreciate why tribes would want to have their preamble couched in the terms that they normally are. But in support of my colleague Dr Mapp it does not mean that the Crown needs to buy into that mode. While it is proper for the Crown on behalf of New Zealanders to acknowledge the injustice because that is what these claims are about—an injustice to sectors of our community; a longstanding injustice to be rectified—none the less I think there is a point to be made that the Crown needs to try to strike a balance and that there is also an aspirational component to these settlements because that is what they are about too. 
Hopefully settlement legislation brings grievances to an end but it also signals the start of a better future. If as my colleague Dr Mapp has signalled he does not see that necessarily in the preamble then I think that is an issue for the Minister in charge of Treaty of Waitangi Negotiations and the Minister in the chair Mita Ririnui to bear in mind. In the future they should see whether there is a way of stating the history and imparting the deep sense of injustice that particular tribes—in this case Ngati Tuwharetoa Bay of Plenty—feel in relation to what happened to them and to their ancestors so long ago couched in terms that we all genuinely hope will signal that this settlement is the start of movement forward. We should not look like we are just mired in the past because of course nobody is—certainly not members in this Parliament. We in the Parliament more than anybody need to ensure that these settlements project a forward-looking view that they lay the basis for forward momentum for acknowledging and giving credence to the hurt that has been suffered by a particular tribe but also signal our understanding—an aspirational signal—that things will be better and indeed things will be different because what we are doing in this settlement is giving a basis on which to move forward. 
STEPHEN FRANKS (ACT) 
: 
 I found very interesting the thoughtful comments—some of the most thoughtful I have heard on this topic—made by the Hon Georgina te Heuheu and Dr Mapp in looking seriously at what many people have regarded as mere formalities. Part 1 is the part with the text of the acknowledgments the historical recital and I was pleased to see that those members took it seriously. I think future generations may well look at this part—and look at it in absolute amazement that we could have a long recital of history going back 140-odd years and that the Crown on behalf of the people of New Zealand is apologising for things that can scarcely be known and for wrongs that are done daily today. 
I draw attention to clause 8(3)(f) in which there is an apology effectively for eroding “the traditional social structures mana and rangatiratanga of Ngati Tuwharetoa” and for failing to “protect Ngati Tuwharetoa … from the impact of these actions”—presumably that means eroding the social structures mana or pride and rangatiratanga of Ngati Tuwharetoa. Well there is nothing whatsoever in the treaty that says that social structures mana and rangatiratanga will not be eroded. 
The treaty said that the protections of English property law would be given to property and those were rights that Maori did not have. Those were concepts of ownership that Maori did not have. It is perfectly in order for the Crown to apologise for confiscating land without compensation for taking rights by fraud or for punishing people who had not rebelled and giving their land away to others. That is perfectly in order but for this Parliament now to be turning round and grovelling because traditional social structures have been eroded is something the ACT party simply will not be party to. 
Traditional social structures may be good they may be bad; they simply are. There will be parts that we all regret to see gone. I regret the loss of the sense of community that I grew up with before television but I do not expect any Government to start apologising for the erosion of the institutions of civil society that occurred because the State started a television service that meant people stayed at home instead of going out. I do not see any reason why the anglicisation of property rights which of course did erode traditional society and the power of chiefs is something to apologise for. In just about every place where that has not happened traditional society has eroded just as corruptly. 
Indeed when the treaty was signed the missionaries would have been very well aware from the crusading investigative journalism of  
The Times 
 of London of just what the traditional power of the chiefs had done in Scotland. Indeed I think that article 2 of the treaty was a direct reflection of concern about the abuse of chiefly power that took for itself the value that should have been available for all ordinary people. The traditional social structure did not protect many of the people who had none of those so-called erosions when it became a new market economy. 
Hon MITA RIRINUI (Associate Minister in charge of Treaty of Waitangi Negotiations) 
: 
 I first acknowledge the contribution made by National member the Hon Georgina te Heuheu and her comments in relation to this bill that it is a positive step forward for Tuwharetoa ki Kawerau. I also remind the previous speaker Mr Stephen Franks that the Crown is not apologising for the actions he referred to but for the fact that by its actions the Crown was in breach of the Treaty of Waitangi—hence the apology. 
I stand also to respond to the amendment tabled by New Zealand First member Pita Paraone. He proposes to amend the preamble by removing the words “ki Kawerau” and adding the words “i waenga te rohe o Kawerau”. That is what we might call a semantic matter in that the English translation means very much the same thing. Why would we add six words when one is sufficient? The reference to Ngati Tuwharetoa ki Kawerau is the preferred wording in the description of that particular claimant group and to that end the Government will not be supporting the amendment. 
STEPHEN FRANKS (ACT) 
: 
 I am glad that the Minister in the chair Mita Ririnui took a call to respond. The argument he made though that the Crown is not apologising for eroding traditional structures is not consistent with the wording of clause 8(3)(f) which states: “these actions”—referring to the individualisation of title and loss of the use of swamps and land etc.—“eroded the traditional social structures … The Crown failed to adequately protect Ngati Tuwharetoa … from the impact of these actions and this was a breach of the Treaty of Waitangi … and its principles.” My questions are: how where—and what principles? 
There is no definition of those principles. They were weasel words used by this House in a moment of infamy and subsequently the courts have had to try to give them some meaning. The courts have struggled. We have no authoritative statement of what those so-called principles are yet in this provision we see the Crown acknowledging having eroded social structures etc. and then in clause 10 apologising for the matters it has acknowledged. 
Clause 10(4) states: “The Crown profoundly regrets its failure to acknowledge the mana and rangatiratanga of Ngati Tuwharetoa (Bay of Plenty).” Clause 10(5) states that the Crown “seeks to atone for these wrongs and to begin the process of healing …”. Clause 10(2) states: “The Crown profoundly regrets and unreservedly apologises for the breaches of the Treaty of Waitangi … and its principles.” 
None of us know what those principles are. The Prime Minister when directly requested has never managed to tell us what those principles are. No speaker from the Government has ever told us exactly what principle says that the traditional social structures of Maori should not be eroded. For all peoples traditional social structures evolve. Erosion is a way of talking about it pejoratively but evolution is the action of every human social structure. 
Indeed I suggest that if the Government offered Ngati Tuwharetoa who are living in the Bay of Plenty now an opportunity to exchange their position for what they had then very few would take it up. Who would want to be subject to a traditional social structure in which slavery had only just gone? Who would want to be subject to a traditional social structure whereby the ability to utilise land did not have the reforms or efforts that Sir Apirana Ngata brought to it in order to make collective landholding economically worthwhile? It took a great deal of erosion—or evolution—in traditional social structures to get to the position where people could be confident even that they would get to harvest a crop they had sowed. 
I think it is a disgrace that this Committee is sitting here tugging its forelock and asking where it can sign and when it will vote when those apologies are historical nonsense and are for conduct that has nothing whatsoever to do with the treaty. If that apology had been for the fraudulent procuring of land for the wrongful punishment of people for rebellions they were not involved in or simply for collective punishments when English law required that people were found guilty of individual crimes then it would be something the ACT party could support. 
Instead in clause 10(3) we have an apology for “the cumulative effect of its actions over the generations which have had a damaging effect on the welfare economy environment and development of Ngati Tuwharetoa …”. What blithering nonsense! The damaging effect that would have been the lot of Ngati Tuwharetoa if land had not been individualised if swamps had not been cleared and if people had not been able to participate in the export economy would have been far more profound. 
For New Zealand First to have the ability to trumpet its opposition to the so-called principles and then for us to come across a bill like this that has this Parliament apologising for wrongs we cannot define and for actions we should be applauding in many cases rather than rejecting is to say that this country is lying to itself. 
DIANNE YATES (Labour—Hamilton East) 
: 
 I move  
That the question be now put 
. 
Motion agreed to. 
The question was put that the following amendment in the name of Pita Paraone to recital (32) of the Maori text be agreed to: 
to omit the words “ki Kawerau” and substitute the words “i waenga te rohe o Kawerau”. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 49 
New Zealand National 27; New Zealand First 13; ACT New Zealand 9. 
Noes 70 
New Zealand Labour 51; Green Party 9; United Future 8; Progressive 2. 
Amendment not agreed to. 
The question was put that the amendment set out on Supplementary Order Paper 367 in the name of the Hon Mark Burton to recital (32) in the preamble be agreed to. 
Amendment agreed to. 
A party vote was called for on the question  
That the preamble as amended be agreed to. 
Ayes 111 
New Zealand Labour 51; New Zealand National 27; New Zealand First 13; Green Party 9; United Future 8; Progressive 2; Maori Party 1. 
Noes 9 
ACT New Zealand 9. 
Preamble as amended agreed to. 
Part 1 Acknowledgements and apology by the Crown to Ngati Tuwharetoa (Bay of Plenty) and preliminary provisions 
Hon GEORGINA TE HEUHEU (National) 
: 
 Part 1 outlines the purpose of the bill which is essentially to record the acknowledgments and apology given by the Crown to Ngati Tuwharetoa Bay of Plenty in the deed of settlement. It also gives effect to certain provisions of the deed of settlement signed between Ngati Tuwharetoa Bay of Plenty and the Crown in respect of historical claims. In so far as it gives the outline of the bill Part 1 signals that Part 3 will provide that the settlement of the claims of Ngati Tuwharetoa Bay of Plenty is final and deals with related issues. It is important for the members of the public who are listening to know that the objective of settlement legislation is always to make sure that the settlement of the historic injustice that has been suffered by any one particular tribe is regarded as being full and final for the matters that are dealt with in the legislation. 
Clauses 7 and 8 set out both in Maori and in English the acknowledgments to Ngati Tuwharetoa Bay of Plenty in respect of their grievances. This House should never underestimate the importance of this part of any settlement legislation to the tribe in question particularly when a tribe has suffered raupatu or confiscation at the hands of the Crown for standing up for hearth and home so to speak. Those people who are of English extraction and I am one of them as well will understand clearly what that means. There is an understanding that the hearth and home are sacrosanct to the family and that is why I think those confiscations were such an unhappy time in our history. In essence the tribes were basically standing up for no more than their hearth and their home. In other words they were saying: “This is my home. I have a right to stand and protect it.” 
When the Crown acknowledges and apologises for unlawful confiscations it is an important matter for the tribe concerned. Although much is made of the treaty grievance gravy train and the money that is tied up in settlements members must believe that a public apology set in legislation is a huge thing for tribes and in this case it will be no less so for Ngati Tuwharetoa Bay of Plenty. It is basically a recognition by the Crown of the struggles of the ancestors of Ngati Tuwharetoa Bay of Plenty. It states that “The Crown profoundly regrets and unreservedly apologises for the breaches of the Treaty of Waitangi (Te Tiriti o Waitangi)” and particularly for the confiscation of Ngati Tuwharetoa Bay of Plenty lands and for the cumulative effect of those actions over the generations. 
I was listening to the member for ACT Stephen Franks. Maori society was built upon the ownership of land—tribal ownership. Once that was taken away there was little chance for the societal structures to remain. 
JUDY TURNER (Deputy Leader—United Future) 
: 
 I will take just a brief call on Part 1 of the Ngati Tuwharetoa (Bay of Plenty) Claims Settlement Bill because it relates to the apology. In a way I want to counter the speech made by Mr Franks who was concerned that the Crown was apologising merely for the erosion over time of traditional structures that may have changed anyway as traditional structures do when societies progress and move on. 
However the nature of this apology is that it is based on a specific moment in history when a group of people were traumatised through land confiscation and an accusation of collective guilt. At that point in time a process of the erosion of traditional structures began which can be dated from a traumatic event for which the Crown now chooses to apologise—and rightly so. I think it is wrong somehow to water down the very essence of this apology by saying that that erosion was some sort of natural process that could have occurred over time anyhow because traditional structures in society do change. That is not what we are dealing with here; the apology is about a traumatic event that happened to those people from which we can now date a process of erosion. 
That process could have happened in a different way and in a different manner. Societies do change cultures do change but that is not what is being apologised for here. The apology is for the fact that the people in that group were required to make changes and to have their traditional structures eroded through a traumatic event imposed on them by other people. I think we need to remain supportive of this aspect of the legislation. 
Dr WAYNE MAPP (National—North Shore) 
: 
 I turn to the apologies and acknowledgments set out in Part 1 of the Ngati Tuwharetoa (Bay of Plenty) Claims Settlement Bill and in particular to the text of the acknowledgments in English. Clause 8(3) states that the Crown acknowledges that the return of land to individuals rather than to iwi and hapu was a breach of its obligations and caused harm. In particular clause 8(3)(e) states: “This was not consistent with customary tenure and made those lands more susceptible to partition and alienation;”. 
I would suggest that in many circumstances—not all circumstances but in many—the collective ownership of land without variation has caused serious problems. It is difficult in a modern economy for people to advance their interests if all their property is owned collectively. The reality is that in the modern economy people do not act as iwi or hapu to a marked extent. By and large individuals are responsible for their own economic welfare. I believe that the Hui Taumata 2005 recognised that by putting so much stress on the advancement of skills—skills that are acquired by individuals. People have to study for themselves in order to gain an education. 
When that theory is applied also to land we are aware that farms are not farmed by large groups; they are farmed by small groups of people—typically individual families. That is why the huge strength of the New Zealand agricultural base has been the family farm. Notwithstanding the fact that there has been an increase in the size of farms the family farm is still the building block of our agricultural success. 
I would suggest that for Maori in part the individualisation of title gave people opportunities. Rather than harming them it actually helped them. People say that it then led to partition and alienation. One of the requirements of a modern economy though is that people can actually sell things and not just retain them so that people can use their resources in ways that suit them. That is not to say that there is not a place for iwi-owned lands. I recognise that. But it is wrong to suggest that all land under the Te Ture Whenua Maori Act should essentially be held collectively. That would actually be harmful. Some land may have to be and indeed should be held collectively; a fair measure of it should not be. 
Indeed an increasingly recognised problem is the growing number of owners of quite small parcels of land. That is not helpful but one of the strengths of the partition and individualisation of title is that it enables people to sell and to seek new economic opportunities. I acknowledge that those opportunities were not always available to Maori in the past for a variety of reasons but surely in the 21st century they are. 
As I said in the debate on the preamble those acknowledgments essentially have a Rousseauean view of Maori—that of the noble savage if you will. The view simply does not meet contemporary needs or dare I say it the needs of that time either. Economies and peoples are dynamic. Our acknowledgments and statutes should also recognise that reality. 
What we are often seeing now is land actually undeveloping. One of the reasons it is undeveloping is because in many cases land that was held a generation or two ago by one or two individuals—normally the head of a family or whanau—is now held by large numbers of people. So we are seeing those same farms which are essentially family farms in the traditional sense of that term now being owned by large numbers who are the descendants of those people of two or three generations ago. 
That is actually harming the development of those farms because what they do not have is reinvestment. People are not willing to put a portion of their income—for example a person using his or her income as a teacher—into the development of the farm. Large amounts of money are expended on the administration of what is after all a family-sized unit that may perhaps have 300 owners. It is not efficient; it is not effective. 
We need to acknowledge therefore that it was not always harmful—although in some cases it might have been—for titles to be partitioned and individualised. In many cases that actually laid the foundation for Maori farming enterprise. It enabled a whole lot of Maori back in the early part of the 20th century in the first 50 years to build individual farms and that has laid much of the foundation of the economic strength of many Maori families. Yet today—and I know this from personal experience—some of those farms are going backwards because they are no longer owned by a small number of people; instead they are owned by a large number of people. I noted the proceedings of the Hui Taumata and saw that some of that was recognised which is one of the reasons people are saying we should move on from the Maori Land Court. 
That is one of the problems with the way we are doing treaty settlements. Unlike ACT National is not saying we should not do treaty settlements. We say that we should do them and we want to accelerate them but the way we do them is crucially important. The way the acknowledgments are made should not just reflect the past but should also reflect aspirations for the future. I believe that those acknowledgments and apologies do not embrace the fullness of the task ahead of us. They are too one-dimensional. 
The Government knows it will have more of those settlements to do over the next 2 or 3 months before the election and my request is that it takes a broader view and reflects aspiration and looking forward as well as looking back. I fully understand that both elements are important but I do not see them reflected in this legislation and that is a pity. 
PITA PARAONE (NZ First) 
: 
 Part 1 of the Ngati Tuwharetoa (Bay of Plenty) Claims Settlement Bill is one of the more important parts of the bill. It lists the acknowledgments and apology by the Crown to Ngati Tuwharetoa Bay of Plenty. Part of its importance is that it acknowledges the breaches of the Treaty of Waitangi—I will just leave it there—and it also acknowledges the confiscations made by the Crown of those lands belonging to Ngati Tuwharetoa. 
I pick up on a comment made by the speaker from United Future who talked about the erosion of traditional structures. During the debate on the Ngati Awa Claims Settlement Bill we heard about an example of traditional structures being broken down and that process was actually supported by United Future. So while on the one hand it is all very well to say that the Crown should not be contributing to the erosion of traditional structures on the other hand neither should this House be doing so. [ 
Interruption 
] Even if it is a deliberate choice by iwi as mentioned by that member it should be a decision only of the iwi concerned. It should not be made by this House or by any other outside group or organisation. That is why it is important to ensure that we do not contribute to the erosion of the traditional structures of Maori; it should be left up to them to make that decision. 
I also make the point that Part 3 “Settlement of historical claims and miscellaneous matters” talks about the settlement being final. New Zealand First supports that but we do not support the premise that in the process of dealing with this particular historical claim we are not contributing to any future contemporary claims that people might want to make. I suggest that there should be some opportunity for that sort of claim to be made in the future. Although we might pat ourselves on the back that this is a historical claim that will have its finality in the passing of this bill there is no assurance that we will not see contemporary claims in the future. 
We also note that there is some reference to the principles of the treaty outlined in clauses 7(2)(c) 7(3)(f) and 9(2) and translated into English in clauses 8(2)(c) 8(3)(f) and 10(2). I understand that amendments are set out on a Supplementary Order Paper to provide that those references be omitted but I restate the position of New Zealand First: if we perceive that the use of the phrase “the principles of the Treaty of Waitangi” affects the operational and functional purpose of the bill then we will certainly support its omission. But I believe and New Zealand First certainly believes that the inclusion of those words in Part 1 does not affect the operational or functional purpose of the bill. 
STEPHEN FRANKS (ACT) 
: 
 A number of speakers have made reference to the position of the ACT party on this legislation. We do vote against these settlement bills but we do not vote against them because we do not want to see settlement of claims for land wrongly and fraudulently taken and for property rights breached—breaches of article 2 of the treaty—we vote against them because they do an awful lot more than that and an awful lot less than that. This particular part is instance of that. I have an amendment that I am hoping New Zealand First will vote for which removes the subclauses that refer to the so-called principles. 
The leader of New Zealand First is making great play—indeed he has a bill on the Order Paper—to remove references to the principles of the Treaty of Waitangi in legislation. But then for years since New Zealand First’s leader first realised that ACT New Zealand was speaking the truth when it pointed to the complete lack of definition of and the strife being caused by those references he has joined in that chorus and has demanded definition. Yet New Zealand First has voted for clauses in legislation passed by this Parliament that still contain those references. 
I would have liked my amendment simply to omit the phrase in each place where it occurred “and its principles”. That would have been quite sufficient but my problem was my inability to work out exactly what words referred to the principles in the Maori version. So in the speed of drafting the amendment I thought the safer thing was actually to omit the subclause as a whole. But if New Zealand First simply wants to put forward an amendment to my amendment so that it is only the words “and its principles” that are omitted from each place they appear instead of the entire text of the subclause I would be very happy to support an amendment from New Zealand First along those lines. 
I want to refer also to the comments of Dr Mapp where he too suggested that ACT did not support settlements. We are very conscious that New Zealand as a whole and not just Maori or Maori making treaty claims may have a very wrong idea of what constitutes wealth in a modern world. It is not ownership of land that marks the countries that are rich. The Singapores and the Switzerlands are either amongst the most densely populated the most land-short or the most scruffy and unproductive land areas of the world. There are vast areas of natural wealth that is being under-used. What marks rich countries is almost the opposite of land wealth. It is the fact that as peoples they have had to work out how to be rich without land. I think that these treaty settlements are in fact directing Maori down a very sad path. 
The worst example of a major settlement totally ruining an indigenous people must be very close to New Zealand on the island of Nauru. Its people became rich beyond all dreams of avarice and in one generation not only have they blown it but they have blown their health as well. That is not to say that that will happen as a result of these settlements but it does say that ownership of assets has next to nothing to do with either cultural or material wealth. Ownership of assets as the Bible says may in fact mean the very opposite. It may be harder for wealthy families to ensure that their children maintain the sorts of habits and the willingness to work that constitute true wealth than for those who are poorer. If the Government is going to apologise for eroding traditional social structures why is this Government not apologising for the welfare system that has totally devastated the Maori family? That is not a historical thing. This Government is doing it daily. 
Hon Georgina te Heuheu 
: This is another treaty breach. 
STEPHEN FRANKS 
: It is an absolute breach. If there was a breach of the Treaty of Waitangi and its principles because there was a transfer of land into personal ownership what about the breach that means that 70 percent of Maori kids are growing up without a father? What kind of social erosion is that? 
Hon GEORGINA TE HEUHEU (National) 
: 
 I want to make some comments. Stephen Franks has proposed amendments that provide for clauses 7(2)(c) 7(3)(f) and three other clauses to be omitted. They are the “principles of the treaty” clauses. I can understand why they are there because the jurisdiction of the Waitangi Tribunal under section 6 of the Treaty of Waitangi Act is based on the principles of the Treaty of Waitangi. The officials need to take note of that as well. Having sat on the tribunal for 10 years I am pretty much aware of what the jurisdiction is and it is the principles of the Treaty of Waitangi. So I suggest the reality is that unless a claimant tribe can come and show there has been a breach of the principles of the treaty then its claim will fail. After succeeding on that basis either through the hearings process or through discussions with the Crown it is understandable why that clause referring to the principles of the treaty will appear in the settlement bill. 
Having said that though that clause has clearly become a—what can one say? 
Dail Jones 
: A template. 
Hon GEORGINA TE HEUHEU 
: Well it is certainly a template but it has been a template for some time. I think that what one could say is that that reference has become a bit of a millstone around the neck of this Parliament. That situation has occurred only since the advent of the Labour Government in 1999 because of course that term “the principles of the Treaty of Waitangi” has been seen to appear in all manner of things since 1999 and the reality is that it does not always apply. National has severe reservations about the inclusion of that statement in legislation—no less in treaty settlement legislation than elsewhere. As I said earlier it has become a millstone because the Labour Government has tried to push it everywhere—absolutely everywhere. It is in employment legislation health legislation and in local government stuff—you name it. The Government has plonked the phrase “the principles of the Treaty of Waitangi” everywhere and it does not apply—it is not applicable everywhere. 
In coming into the new dawn it is basically incumbent upon the Government to think hard about what it has done in this area and to consider whether that is the best way of dealing with the claims. I guess that if something is a breach of the principles of the Treaty of Waitangi then it is probably a breach of the treaty itself. I think that is probably why ACT has come out so strongly against that phrase so National would have to support the amendment from ACT. However we do recognise that the principles of the Treaty of Waitangi form the jurisdiction for claims to the Waitangi Tribunal and therefore we can understand why the phrase is now part and parcel of settlement legislation. Going forward National has already signalled as has Winston Peters through his treaty deletions bill that that may not be the case in future. But Maori should not be disadvantaged by the removal of that phrase because if something is a breach of the principles of the treaty it is hard to fathom why it would not also be a breach of the treaty itself. That statement is present in a number of clauses throughout the bill and the Minister in the chair at this moment Mita Ririnui should turn his mind to whether it is the proper basis on which to settle claims. There is no harm in thinking about that and it is certainly appropriate to debate the issue particularly since National has raised the issue that it may not be appropriate to use that phrase in these modern times. 
DAIL JONES (NZ First) 
: 
 New Zealand First would much prefer not to have the words “principles of the Treaty of Waitangi” in the legislation but the amendment that has been put forward by Mr Franks wants to delete a whole clause and it is really looking at the matter in isolation. We have to look at all the clauses together; there is a package. We have to go on and look at clause 14 and at clause 15 to understand how it all works. 
Essentially what we have in the legislation are these clauses in Part 1 that relate to an agreement that has been entered into. New Zealand First and I am sure the National Party do not want to go back and say to everyone: “Renegotiate the whole thing otherwise we will not agree to it.” because if we go on to clauses 14 and 15—and I hope the Committee will bear with me—they state that where the expression “principles of the Treaty of Waitangi” has been used it is a historical claim. It is something in the past. Then clause 15 states that the settlement of those historical claims is final. So that is the last use of the phrase “principles of the Treaty of Waitangi” for historical claims in so far as this particular group is concerned. That is a package. It is completed. 
If I were pleading this case in a civil claim I would say that we do not agree with those principles and we deny that they exist but in all the circumstances they have no effect whatsoever because this matter is now at an end. This bill brings the concept of the principles of the Treaty of Waitangi in this context to an end. We have to look at the whole package to understand it. I think that is what Brian Donnelly was trying to explain in his way the other night when he followed what Mr Franks had to say on this legislation. 
We do not accept that the words “principles of the Treaty of Waitangi’ add anything to this but even if they did it is almost irrelevant because this thing is at an end. It is finished now. It is over and done with so what is the point in arguing about it? When we had the Ngati Awa case of course we then had a situation—as my friend and colleague Pita Paraone has explained—where some new groups were created that had never existed before even in the 1985 Maori regulations. We objected to that new breach of the Maori traditions as Pita Paraone was saying to Judy Turner. 
So while we would prefer to see the principles of the treaty not included we accept that an agreement has been reached. New Zealand First wants to see this treaty process brought to an end. The last thing that we want is to have these things going back again for ever and a day. We are satisfied that the way in which the bill has been drafted taking into account clauses 14 and 15 brings it to the end. The words “principles of” are really irrelevant. They do not mean anything. We believe that they mean nothing and as they mean nothing they cannot have any effect on anything anyway. If we look at it in that context they are meaningless. So why argue about something that is meaningless in this particular context where the matter is at an end? We will go along with it in this particular context and situation bearing in mind that for example in a State services piece of legislation or in some other new legislation that is continuing into the future this ends it—this finishes it. 
We will always oppose any new legislation that looks at the principles of the Treaty of Waitangi being brought in for future reference. But this settlement is a finalised matter; it is ended and I think that is the way in which it should be considered. New Zealand First wants to bring the treaty process to an end and this is bringing it to an end. I think that people like those members of the ACT party who want to continue moaning and groaning about what Maoris do and what Maoris are claiming become very upset when we do have a settlement because it gives them one less thing to moan and groan about when it comes to election day. We want to see this finished we have set dates for when these matters should be finished and we are pleased that this settlement is being given effect to by Parliament. 
STEPHEN FRANKS (ACT) 
: 
 I think it is probably a shame for the honourable member who has just resumed his seat that he was not around 140 years ago. He would have been a very good land purchasing agent. He could have been out there basically persuading Maori that what they were getting was valuable and that black was white. It is the sort of sophistry I expect. Here is a man saying: “We need to do this. It doesn’t mean anything so therefore it does not matter if we vote for something that is against our principles. Don’t you worry about it.” That was the snake oil salesman’s logic. “Don’t worry about all those reservation that you have. Don’t worry about the fact that the title is being transferred to the Crown. We will look after you. We will set up reserves.” It is the same kind of “just don’t worry about the detail” statements that got this country into the position where there were differing expectations and where there were such gross breaches of faith. 
We do believe that there should be settlements of stolen property and of property taken without proper compensation. But we certainly do not believe that this Parliament in 2005 should be passing law when it does not know what it means. If there is anything we can glean from what the Rt Hon Winston Peters has said about the so-called principles it is that no one knows what they mean. And here we have a spokesman for New Zealand First standing up and telling us that it does not matter that we vote for four or five references to the so-called principles because we do not know what they mean and they do not matter. Well they do matter. There is simply a question of legislative integrity. 
The member who has just spoken went forward to clause 14. I will not do that but when we look at further clauses we find that kind of legislative drafting technique throughout this deed. We will hear about the so-called Ngati Tuwharetoa values which are spiritual but there is no definition. We do not know what they are. A whole set of statements and mythology—what legal effect do they have? There is a dishonesty about this approach that I believe will condemn future generations to another round of complaint. If we can apologise and pay compensation for eroding the social structures of 160 years ago—and if the senior Government whip Jill Pettis can say that it is completely irrelevant that the social structure of Maoridom is being eroded by the welfare system yet the inevitable individualisation of title 160 years ago is highly relevant—what kind of compensation will we have to pay one day for what has happened to the social structure as a result of the welfare State’s imposition? What will we pay to Maori families who have lost authority over their kids because they are not allowed to smack them? What will we say to the families where kids can go and leave home and give the fingers to their parents because they receive a living-alone allowance—where the State has stepped in and usurped the authority of parents entirely? 
This bill is apologising for eroding the social structure because of land transactions 100 years ago. What a lot of drivel! If there is any apologising that should be done by the Government of this country right now it should be for eroding the social structure of all the people of this country through a welfare system that rewards kids who do not listen to their parents rewards not working and discourages those who do work. For me to hear a New Zealand First speech that tells me not to worry about voting for the so-called principles because we can put it all behind us when in fact the very same words that are used in that apology could well apply in two generations’ time to a whole series of apologies to people for having destroyed their social structure then I do not think that New Zealand First values its vote at all. 
Here is a chance to put a stake in the ground. Here is a chance for those members to say: “We will vote for this settlement but we will omit the three words ‘and its principles’ wherever they appear.” If the Crown has to go back and ask Ngati Tuwharetoa whether it wants to re-ratify this deed without those words it should put it to the test. I would be very surprised indeed if Ngati Tuwharetoa is wedded to those words. 
DIANNE YATES (Labour—Hamilton East) 
: 
 I move  
That the question be now put 
. 
Motion agreed to. 
The CHAIRPERSON (H V Ross Robertson) 
: We have to deal with some amendments. The amendment in the name of the honourable member Stephen Franks is out of order under Speaker’s ruling 102/4 by Chairperson Simich: “An amendment that purports to amend an agreement reached between the Crown and other parties is out of order in a bill to give effect to that agreement.” 
The question was put that the amendment set out on Supplementary Order Paper 367 in the name of the Hon Mark Burton to Part 1 be agreed to. 
A party vote was called for on the question  
That the amendment be agreed to 
. 
Ayes 109 
New Zealand Labour 51; New Zealand National 26; New Zealand First 13; Green Party 9; United Future 8; Progressive 2. 
Noes 9 
ACT New Zealand 9. 
Amendment agreed to. 
Part 1 as amended agreed to. 
Part 2 Interpretation 
Hon GEORGINA TE HEUHEU (National) 
: 
 I want to make some comments about clause 13 “Meaning of Ngati Tuwharetoa (Bay of Plenty)”. I will just make a preliminary comment. Originally the bill dealt with this on the basis that the claimants or the settlees were Ngati Tuwharetoa. What has happened is that the bill is now properly named the Ngati Tuwharetoa (Bay of Plenty) Claims Settlement Bill. That is basically to differentiate the claimants from those Ngati Tuwharetoa living beneath Mount Tongariro. The claimants here the Bay of Plenty families originally wanted the bill’s title to say just “Ngati Tuwharetoa” but the Maori Affairs Committee saw that as being designed to cause confusion unnecessarily and now we have the bill named as it is. 
I now come to clause 13 in which the group itself defines who are to be regarded as Tuwharetoa people. Clause 13 states: “(1) In this Act ‘Ngati Tuwharetoa (Bay of Plenty)’—(a) means—(i) the collective group composed of individuals …” and “(b) includes—(i) the hapu of Ngati Tuwharetoa (Bay of Plenty); and (ii) any hapu group family or whanau composed of individuals …” of those hapu. 
The issue I want to make some comments about is the meaning of whangai in clause 13. Whangai as members will know is a type of Maori adoption where there is a recognition that a child has been taken into the home of a particular family and for all intents and purposes but without the legal trappings of a formal adoption has come to be regarded as being of that family. Some tribes unless that whangai child is actually related by blood to the family who have taken him or her into their home do not necessarily regard that child as being of that tribal entity. 
It seems that Ngati Tuwharetoa Bay of Plenty have settled upon a definition in clause 13 that states: “ ‘whangai of Ngati Tuwharetoa (Bay of Plenty)’ means a Maori who is recognised as Ngati Tuwharetoa (Bay of Plenty) in accordance with Ngati Tuwharetoa (Bay of Plenty) tikanga (customary values and practices).” I wonder whether the Minister could just confirm for this Committee and for those who are listening in to this debate whether that definition is limited strictly to whangai who are descended by blood from their original family or whether it includes a whangai child who has been brought into the family and is being brought up by that family and is a Maori none the less but not of that same kin group. 
Pita Paraone 
: Could be Chinese. 
Hon GEORGINA TE HEUHEU 
: The child could very well be Chinese. He or she could be but on the other hand as the provision states “in accordance with Ngati Tuwharetoa (Bay of Plenty) tikanga” then surely the child could not be Chinese. But I do not think it is clear and that is why I would ask the Minister to take a call and clarify for us whether that includes Chinese people. Does it include Gerry Brownlee? If I recall correctly Gerry Brownlee raised this as a matter of real concern in the select committee. 
Pita Paraone 
: He’d be a good whangai. 
Hon GEORGINA TE HEUHEU 
: He would be a good whangai yes but does it include him? I am sure my colleague Gerry Brownlee would not mind me bringing him into the debate because as I say this was an issue of real concern to the committee members and it took up quite a lot of our discussion. 
Hon MITA RIRINUI (Associate Minister in charge of Treaty of Waitangi Negotiations) 
: 
 I thank the member Georgina te Heuheu for her contribution and for her desire to seek clarification on whangai according to the tikanga of Ngati Tuwharetoa ki Kawerau. As she will be aware and as I am sure every Maori member in this Chamber is aware respective iwi have their own tikanga in terms of whangai. Ngati Tuwharetoa ki Kawerau have been inclusive in the interpretation of their tikanga. Whether that would make a Chinese person Gerry Brownlee a Pakeha person or anyone else of any ethnicity eligible for the benefits of the settlement will be entirely up to Ngati Tuwharetoa ki Kawerau to decide in accordance with their tikanga. I do not think it is appropriate for any iwi that is not connected with this settlement to challenge their right to do so. 
I have family members who have been legally adopted and who have been whangai-ed according to tikanga who are not of Maori descent. They—meaning my brothers sisters cousins or whoever—will enjoy the benefits of any settlement that comes through their adopted parents. Those benefits come through that line—they do not come any other way—as would be the case for a natural child of any beneficiary of any settlement. 
Hon GEORGINA TE HEUHEU (National) 
: 
 I am very pleased with that explanation made by the Minister. I think the further important point to be made and to become part of the record relates to the phrase: “in accordance with Ngati Tuwharetoa (Bay of Plenty) tikanga (customary values and practices)”. The Minister is quite right. If Ngati Tuwharetoa according to their tikanga want to include Gerry Brownlee or a Chinese person kei te pai. I think that is what the Minister is saying. That is fine. 
Hon Mita Ririnui 
: That is their concern. 
Hon GEORGINA TE HEUHEU 
: The Minister is saying that that is not for us as parliamentarians to question. That is fine as well. 
But I flag a concern that some future Government would suggest that. Well if it is good enough for Ngati Tuwharetoa ki Kawerau to include Gerry Brownlee a Chinese person or any other person—we are not picking just on Chinese people and I hope any Chinese people who are listening understand that; it is just by way of an example—then it should be good enough for any other tribe settling subsequently. 
But that will not be the case because the settlement is limited by the words: “in accordance with Ngati Tuwharetoa (Bay of Plenty) tikanga …”. The tikanga of Ngati Tuwharetoa Bay of Plenty is bound to be different from the tikanga of say Ngati Hine up north—it may be different. If it is different and if Ngati Hine or any other tribe that comes to settle decide that some person outside of the kin group or blood group is not to be a beneficiary then that is their right too. 
I think the importance of this discussion is the recognition that these settlements are distinctive and unique to the tribe that is settling. In this Committee tonight we are dealing with Ngati Tuwharetoa Bay of Plenty and no other tribe and what is their right to decide cannot or ought not to in the future be taken as something generic to be applied to all other tribes settling. As long as we all understand that and as long as it goes into the record then no harm is done. 
As I said I appreciated the explanation from the Minister and I appreciate the Chair giving me that extra time to put that into the record. It is very important. Other tribes of course are already starting to grapple with the issue. The Adoption Act makes adopted children beneficiaries whether or not one wants them to be and whether or not they are blood or kin. In respect of whangai without a legal adoption there is still room for the tikanga of a particular tribe to apply. 
Dr WAYNE MAPP (National—North Shore) 
: 
 I particularly want to refer to clause 14 and frankly I have to say for a party that has made so much of the inclusion of the principles of the Treaty of Waitangi how bad it is that it is not taking a call on this part. The New Zealand First Party is apparently not taking a call on Part 2. 
Dail Jones 
: That is a lie—you wait and see. 
Dr WAYNE MAPP 
: Oh well I will be pleasantly surprised if the New Zealand First Party does choose to take a call on Part 2—[ 
Interruption 
] I tell the member that I do not need cross-interjection. I just wish to make the point that a party that is serious about eliminating references to the principles of the treaty should take calls when they arise as they do in clause 14. National’s policy announced by Dr Brash in the now famous speech at Orewa is to remove inclusion to the principles of the Treaty of Waitangi from legislation. I wrote about that in the  
New Zealand Law Journal  
in May of 2003. 
What is wrong with the inclusion of the principles? It is this. The principles do not exist in reality. What one actually has are provisions of the Treaty of Waitangi—clauses that are quite simple on the face of it—both in English and in Maori. Normally one would expect would one not in interpreting an agreement—and the Treaty of Waitangi is an agreement—reference to the terms of the agreement itself; not some judicial fiction invented by the Court of Appeal trying to do its best about some appallingly drafted legislation by the Lange-Palmer Labour Government. Because that is what it all stems from: that appalling inclusion in the State-Owned Enterprises Act which has now infected our law to our disadvantage. 
So we are saying: “Let’s revert back to first principles.” Let us remove reference to the principles of the Treaty of Waitangi; and in this case we are in agreement with other centre-right parties in this Parliament—New Zealand First and the ACT party. We do believe in a reference to black letter law—one lets the law say what it means and one makes reference to the terms of the treaty which are precisely the issues raised in clause 14 of the bill. 
Clause 14(a)(i)(A) states: “from the Treaty of Waitangi (Te Tiriti o Waitangi) or the principles of the Treaty of Waitangi (Te Tiriti o Waitangi);”. It should be one or the other. Only reference to the treaty is required. That would be of enormous benefit to the law. In substantive terms it would make no difference to the way we do our settlements because we recognise that settlements are for breaches of the treaty—in other words confiscations and other actions that remove the property rights of Maori. That is the very essence of the preamble the acknowledgments and the apologies within this document. Land was confiscated in essence illegally in breach of the terms of article 2 of the Treaty of Waitangi. So we say that the rule should be quite clear. In claim settlements one is acknowledging breaches of the law. 
The only reason Maori cannot sue on the basis of the Treaty of Waitangi is that essentially it is outside the statute of limitations; there are other reasons as well but that is the main reason. If for instance the breach had occurred 12 years ago people would simply sue for breach of the law. In reality these breaches occurred much longer ago so one has to make reference to the breach of the Treaty of Waitangi itself—not a document that is part of the law of the land I might add—and that would be the answer to these vexed issues. We say this: the Government makes consistent and persistent errors by continuing to include these provisions. 
DAIL JONES (NZ First) 
: 
 Dr Mapp was not in the Chamber when I spoke on this bill a short while ago but I am now speaking again. I note the interest that Dr Mapp has in the use of the words “or the principles of the Treaty of Waitangi (Te Tiriti o Waitangi)” in clause 14(a)(i)(A). I appreciate his concern and Mr Franks’ concern about that. Of course Mr Franks’ previous amendment to a whole clause rather than to a part was ruled out of order. Just to be consistent I am putting forward an amendment to delete the words “principles of the Treaty of Waitangi (Te Tiriti o Waitangi)” and we will see whether the National Party supports it. I got the impression from the previous speaker Georgina te Heuheu that National was quite happy with what I said a little while ago. But perhaps Dr Mapp was not listening to what I said and now he is saying “All right let’s put it in.” So I am putting in an amendment and we will see where we go with Dr Mapp on that particular issue. 
The issue does not make any difference either way to me or to New Zealand First in the context of only this legislation. As I said this legislation brings something to an end and whatever the people of Ngati Tuwharetoa Bay of Plenty are getting—on the basis of whatever principles may exist on the basis of the Treaty of Waitangi on the basis of this confiscation or that confiscation or on the basis of whatever somebody said 100 years ago 50 years ago or 25 years ago—we really do not know what finally drove people to come to this decision. One has a negotiation and one ends up with a compromise. I doubt whether anyone who sat around the committee table in coming to this conclusion said it had to be worked out on the basis of the principles of the Treaty of Waitangi. I am sure that when people look at the settlements set out in the schedules they will see that none of those settlements relate to anything to do with the so-called principles of the treaty. It came down to people making a decision reaching a compromise and saying that at the end of the day they have argued about the issues for 100 years and finally the Government and the various political parties have decided to do something about them. So those people have reached this decision. 
It is really academic and a matter that is in the past tense to go into the reference to the principles of the treaty in this particular bill. However I appreciate the concern that other members have expressed so I have asked for the words “or the principles of the Treaty of Waitangi (Te Tiriti o Waitangi)” in clause 14(a)(i)(A) to be deleted. I really look forward to receiving the support of Georgina te Heuheu and Dr Mapp on that. 
This bill has had a considerable amount of time spent on it already and New Zealand First wants to bring all these matters to an end and have the issues resolved. That is the basis of our policy. I do not intend to take any further time on this issue and look forward to the clause being dealt with at the appropriate time. 
The CHAIRPERSON (Hon Clem Simich) 
: I call Stephen Franks. 
Dr WAYNE MAPP (National—North Shore) 
: 
 I raise a point of order Mr Chairperson. I am sorry to interrupt Mr Franks at this point. I realise I am slightly beyond the time but I have taken the time and trouble to check the order of speaking. I said in my speech that New Zealand First had not taken a call in Part 2 on the principles of the treaty. I was accused in an unparliamentary term of not being correct. I have since checked the record and seen that in fact a call had not been taken in Part 2 at that time. I therefore ask Mr Jones to withdraw the comment he made about me. 
DAIL JONES (NZ First) 
: 
 The comment that my friend Dr Wayne Mapp made was that New Zealand First is not taking a call. That was in the future tense and I said to him that he could not tell us what we were going to do. As you know Mr Chairman the National Party is entitled to two calls and New Zealand First is entitled to one call in the Committee stage. Georgina te Heuheu had one call Dr Mapp had another call and then it was my turn to get the call. Dr Mapp should learn a little more about the Standing Orders and about tenses before he gets carried away. 
Dr Wayne Mapp 
: I wish to reply to the accusation just made. 
The CHAIRPERSON (Hon Clem Simich) 
: No we are getting into a debate between the two of you and I do not think we need to take it any further. In regard to the matter of the speaking order everything is OK. 
Dr WAYNE MAPP (National—North Shore) 
: 
 I raise a point of order Mr Chairperson. It is a fresh point of order. It is an issue of tense. I did not use future tense; I used past tense. I am absolutely clear on that point and I invite Mr Jones to reflect upon that point. 
The CHAIRPERSON (Hon Clem Simich) 
: I take your point Dr Mapp. 
STEPHEN FRANKS (ACT) 
: 
 I want to address an amendment that Mr Dail Jones for New Zealand First has proposed and just spoken on. The effect of his amendment is to remove from clause 14 the reference to the principles of the treaty. That would leave clause 14(a) defining historical claims as being every claim that is founded on a right arising from the Treaty of Waitangi or arising under legislation common law aboriginal law or fiduciary duty in relation to Acts before 21 September 1992. Now this may seem like simple party point-scoring—and I would like to be able to support the amendment because I do not like those words—but I think that New Zealand First has the order of things around entirely the opposite of what it really intends. 
There is only one place in this bill that should refer to the principles of the Treaty of Waitangi and that is clause 14 because that clause is the definition that tries to state that the settlement is full and final. When parties state later on in the operative clause that they accept there will be no more historical claims that is defined in clause 14. Unfortunately clause 14 refers to the Treaty of Waitangi Act where section 6 uses the phrase “the principles of the Treaty”. In other words the only reason we are having this settlement is that there was deemed to be a breach of the principles of the Treaty of Waitangi. So this is the one place where those words have to stay simply in order to get rid of them. 
In the earlier part the words were redundant. If we believe there is no such thing as the principles and there is only the treaty the words are utterly redundant and should have been removed in order to make sure that we were not endorsing and continuing that redundancy. In clause 14 the situation is the opposite of that. In clause 14 we have to refer to the principles of the treaty because we are actually getting rid of them. Therefore although I would very much like to vote for a New Zealand First change of heart to get rid of these principles in this particular case clause 14 is the one place where it is necessary to refer to them. I believe that is what the Hon Georgina te Heuheu would say too. She has looked at this issue and as a former member of the Waitangi Tribunal she knows that however much the words “the principles” confound things—however hard it is for people to decide exactly what they are supposed to cover—that is the wording that the legislation used and it is what the tribunal had to apply. Therefore when we settle a claim those are the words that need to be used in order to state that it is all over and that people cannot settle it any further. When we remove the words “the principles of the Treaty” from the Treaty of Waitangi Act then we will never again need this kind of loony definition. Mr Jones’ instinct was right; it is a loopy thing to have in our law. But as a technicality clause 14 is the one place where we need to use it. 
I am glad to see that New Zealand First will bring forward an amendment of this kind. That is courageous and I wish that I could support it. I think that possibly with a bit more time and if we had had time to sort this matter out not in sight of the microphones we might have reached agreement on just what should be done with regard to the references to the principles of the treaty. But as the situation has turned out New Zealand First has found the courage to propose the elimination of the reference to the principles of the treaty one part too late in this debate. I will of course watch very closely to see how National votes on this amendment and to see whether the Hon Georgina te Heuheu takes a call again to explain just how National will vote on this move by New Zealand First. 
I have found the speeches made by the National members very interesting. Dr Wayne Mapp’s very thoughtful speeches show just how long he has been thinking and what a long trip he has had to take to get to where he is at today from the position he was at 3 years ago. But that is something to be commended and he has made it obvious that it is not just a reflex backflip but is reasoned. 
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. 
Hon DAVID CUNLIFFE (Minister of Communications) 
: 
 I move  
That the question be now put 
. 
DAIL JONES (NZ First) 
: 
 It is a funny old Parliament is it not? There we were on Part 1 and I was getting—shall we say—attacked by Mr Franks about supporting the principles of the Treaty of Waitangi and we learnt that we could not put forward that amendment anyway because it was an agreement. So New Zealand First called everybody’s bluff and we put forward an amendment to remove the phrase “the principles of the Treaty of Waitangi” because I had heard from Dr Mapp that he seemingly supported the removal of that phrase. I had had that very strong impression from Dr Mapp. He had challenged me to take a call and had made the point that I had not taken one so I took a call and said that I would put forward an amendment to delete references to the principles of the Treaty of Waitangi. 
Then what did we have? We had the deputy leader of the National Party make the speech that I had made on Part 1. That is what it boiled down to. He had seen the light. So we have almost three views from the National Party: we have the Gerry Brownlee view the Dr Wayne Mapp view and the Georgina te Heuheu view. 
Of course I was amused by Mr Stephen Franks. He accused me of being a snake oil salesman. What was his second speech if not a speech from a snake oil salesman—with all due respect to Mr Franks! 
Well we have put forward the amendment and we will be arguing for it to continue. Interestingly for the future exactly the same sort of wording is used in the Ngaa Rauru Kiitahi Claims Settlement Bill that is coming up. Perhaps we will take a different view on that legislation but having established this sort of trial on the wording this time I will still persist with my amendment and perhaps next time things will be different—the view having been confirmed around the Chamber on this occasion. 
The question was put that the following amendment in the name of Dail Jones to clause 14 be agreed to: 
to amend paragraph (a)(i)(A) by omitting the words “or the principles of the Treaty of Waitangi (Te Tiriti o Waitangi)”. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 13 
New Zealand First 13. 
Noes 107 
New Zealand Labour 51; New Zealand National 27; ACT New Zealand 9; Green Party 9; United Future 8; Progressive 2; Maori Party 1. 
Amendment not agreed to. 
The question was put that the amendments set out on Supplementary Order Paper 367 in the name of the Hon Mark Burton to clause 12 be agreed to. 
Amendments agreed to and Part 2 as amended agreed to. 
Part 3 Settlement of historical claims and miscellaneous matters 
GERRY BROWNLEE (Deputy Leader—National) 
: 
 This of course is the part of the bill and these are the clauses of the bill that give effect and weight to the previous part which was discussed just a few minutes ago. It is the part that makes it absolutely clear that Parliament considers this to be a full and final settlement and that Ngati Tuwharetoa Bay of Plenty also accept that this is a full and final settlement. 
But I want the Minister to tell the Committee how many members of the Ngati Tuwharetoa Bay of Plenty iwi who are eligible to vote for the acceptance of this bill or of the deed of settlement did so. We are very concerned that only a small number of this iwi—well less than half of those eligible—have voted in favour of this settlement. I know that the Government will have an answer for us and I would like to hear it. It is important when we reach the final stages of these settlements that those who are being settled accept the deal in overwhelming numbers. We have to remember that much of the historical research etc. that was carried out to reach this point of the claim being settled originated in the oral history of Ngati Tuwharetoa Bay of Plenty. Certainly the documented evidence that was available was considered. But in a society that values its oral history I think it is very very important that a large number of eligible people participate in the first place and ultimately ratify any settlement. Low numbers participating leaves the option open for successive generations to say: “Look Parliament settled that on us but a large number of us weren’t too keen on it. A large number of us never expressed a view on whether this was full and final settlement.” So I would like the Minister to give us the numbers and convince us that enough voted. I see the United Future member holding up a piece of paper and waving it around. It is of no significance whatsoever. The member I think yelled out before that 55 percent of those who voted voted in favour of the settlement. But how many did not vote? I am happy to be convinced; if the Minister has compelling evidence that would suffice. 
In accepting this part I do think it is worth saying that the generosity of Ngati Tuwharetoa Bay of Plenty should be recognised. Once we go past the point of saying that there is something to settle the questions then become: “What is the cost? What has to be done to redress the grievance that is deeply felt?”. The reality is that in 2005 terms measured against 1840 and subsequently it is impossible to compensate adequately or appropriately for loss. Members should remember that these are land losses. In most cases these are rights losses. They are quantifiable. So we reach a figure that is large enough to allow the iwi to maintain their mana to hold up their heads and to move forward. 
So we simply say to Ngati Tuwharetoa that this is a significant acceptance on their part. It is an opportunity not only for their part of the world but also for the whole country to take one more step towards the end of grievance and towards all New Zealanders focusing on a better future. 
Hon MARK BURTON (Minister in charge of Treaty of Waitangi Negotiations) 
: 
 I would like to start by echoing the comments just made by Mr Brownlee. I think accepting this part is an act of generosity by Ngati Tuwharetoa Bay of Plenty. As he said this part is at the heart of the bill. It is about providing for full and final settlement and it should be treated with the seriousness that the member gave it. 
As to the comparisons of results I can reassure the member. I want to echo what I said earlier in response to his colleague which was that I agree entirely that it is highly desirable to have the maximum possible level of participation. Our obligation is to ensure the opportunity is there for that participation but we cannot force people to exercise their right to participate—it is after all a right. But by way of reassurance to the member in comparison I can think of two good examples that have stood some test of time. In the case of Waikato-Tainui the participation rate was 40 percent of which 65 percent voted in support of the final settlement. In Ngai Tahu there was a 50 percent participation rate of which 94 percent voted in support of the final settlement—somewhat higher than for Waikato-Tainui. In the case of Ngati Tuwharetoa Bay of Plenty there was a 55 percent participation rate and 95 percent approval. So it stands well in that company. I agree with the member that we should always pursue the best level of participation but participation in this settlement process was certainly better than in the two largest settlements that have stood some test of time. 
Hon GEORGINA TE HEUHEU (National) 
: 
 First of all I speak on the matter that my colleague Gerry Brownlee remarked on and the importance of why National voted against New Zealand First’s amendment regarding the principles. 
This bill arises because Ngati Tuwharetoa brought a claim the jurisdiction of which is based on the principles of the Treaty of Waitangi. There is no other jurisdiction that exists at this point in time upon which a tribe can bring a claim for a breach by the Crown. Of course there are parties in this House—ours included—that intend to change that jurisdiction in the future but for the moment that is the jurisdiction that exists. I sat on the Waitangi Tribunal for 10 years and our brief was exactly that—the principles of the Treaty of Waitangi. That is why it is important under clause 14 that the historic claims are defined because in Part 3 which is the part we are dealing with we come to the settlement of the historic claims of Ngati Tuwharetoa Bay of Plenty. Part 3 basically says that on that basis this tribe cannot at any time in the future return to this House for redress on the claims now being settled. As I say we all must bear in mind that the settlement now proceeds on the basis of breaches of the principles of the Treaty of Waitangi. 
I want to make a comment in regard to what Mark Burton said about the improvement in the buy-in rates of the tribes as we move along the process first of all for the ratification of the governance entities and for a particular tribe to approve of the deed of settlement itself. Although I agree that 95 percent of a 55 percent voter record is a vast improvement on particularly the first two settlements—Waikato-Tainui and Ngai Tahu—the Minister should bear in mind that in both of those settlements in my view there was not the level of cross-claiming or overlapping interests that we now find in the Bay of Plenty area. Of course the Minister has recently taken over and I think is now moving into the Bay of Plenty into the central North Island. I wish him all the best as he tries to come to grips with all the overlapping interests in that area in which of course my own tribe is involved. So yes this is a better validation of a deed of settlement but in my view it has to be. The level of cross-claim and overlapping interest is far greater in respect of the centre of the North Island than we have experienced before. Maybe that statement is open to other views because we have not actually moved to the northern area in any great way at this point. The fact that in particular the Kaingaroa Forest which is the subject of a number of competing tribal claims is in the middle just highlights that we must always strive to improve the validation by tribes of their deeds of settlement. Otherwise of course there is the potential for any tribe to come back in the future regardless of clause 15 which states that no one can come back on those same issues. Only maximum buy-in in my view will guarantee that they do not come back in the future. 
One other issue we should all be aware of that I want to refer to just briefly is clause 18 “Removal of resumptive memorials”. That is indeed a benefit of having a claim settled and of having similar legislation pass through this House. As we all know for at least the last 10 years there have been caveats on a whole lot of titles in this process. 
Dr WAYNE MAPP (National—North Shore) 
: 
 I want to take a brief call on clause 15 and to refer also to the statements made by my colleagues Georgina te Heuheu and Gerry Brownlee in relation to that. Clause 15 makes it quite clear on the face of it that this is a final settlement and that as a matter of law the settlement is of full force and effect. I guess that one of the concerns the public of New Zealand has—because the reality is that people know each Parliament can pass new law that repeals old law—is whether this nation will revisit these claims again. My colleagues have referred to the level of participation and the importance of buy-in because “full and final” is not just a legal concept; it is a moral concept as well. 
I believe that there is a strong sense today that the procedures and processes—the nature of the negotiations and the democratic process of votes that occurs—do not lead just to a legal obligation about which people feel that we can just change the law but more important also to a moral obligation. It is actually the reason why successive Governments—National and Labour—refer to the Crown. It is the Crown that is settling; the Government of the day in a literal sense is merely the legal representative of the Crown which is intended to have enduring force and ties. If there is one reason why New Zealand would retain that connection to the monarchy it is that enduring legacy which Maori often refer to. The moral force of having the Crown as the signatory is intended to bind not just the New Zealand Government but also the Maori signatories. The democratic path and process that the Government undertakes is well understood by Maori as being a reference to the Crown. Perhaps more than any other people in the country Maori make reference to the honour of the Crown. I have heard many Maori leaders scholars and lawyers refer to that phrase. It binds both ways. 
The moral force of the law we pass today is not something that binds just this Parliament it also binds Maori—not just for one generation not just for 10 or 20 years but as a permanent settlement. In this instance “permanent” means in essence forever. We are closing this chapter of Ngati Tuwharetoa’s history and the Crown’s history together. People will look forward. I believe it is very important that Government representatives—and those on this side of the Chamber as well—and Maori make it very clear to the wider public of New Zealand that this issue is closed. It is a trilateral relationship in that sense. This is an opportunity to move forward—to use the proceeds of the settlement to advance forward. 
In the recent words of some prominent Maori people who have electoral aspirations this is a 20th century issue rather than a 21st or 22nd century issue. I make the point that when National states that it intends to settle all settlements by 2010 when the Government by its legislation states that the settlements are full and final and when Maori say that they are settling with the Crown those statements have more than just legal force—they are moral impediments for the future of this country. 
STEPHEN FRANKS (ACT) 
: 
 This is the part that records the settlement. Clause 15(1) states that the settlement is final and that “on and from the settlement date the Crown is released and discharged from all obligations and liabilities in respect of those claims.” What is not immediately obvious from the words of clause 15 is that the definition that applies is set out in Part 2 which we have just considered. That definition relates only to historical claims. In fact historical claims do not even include any claims that may have arisen since 1992; they go from 1992 back to 1840. 
The Government should have learnt from the experience of the past 10 years or so that full and final settlement should be full and final settlement and then the treaty should be dead. We have created a generation of talented young people who are now growing into their peak years and whose lives have been built around grievance. Although many of those whom I saw and was impressed by at the Hui Taumata want to move on there are still too many who can hardly do that because their living their entire expertise and their authority comes from that industry. 
I am concerned that the Government is making these settlements and that it still has a residue of public support for them when in fact elements of the claims are expressly not settled. I imagine for example that Ngati Tuwharetoa will be pushing Wai 262—that unbelievable claim to own the flora and fauna in New Zealand when Maori and later Pakeha came. I do not think that the settlement in Part 3 or any of these settlements should be made while the Crown deliberately fosters the notion of a distinction between the contemporary claims under a treaty that goes on forever and that forever draws distinctions between New Zealanders on the basis of their ethnic inheritance and a treaty that deals with the terms on which two different peoples coexist for the shakedown period until they genuinely became one people—the one people that Hobson foresaw. So I think that the rather extravagant language in this provision which states that the Crown “is released and discharged from all obligations and liabilities” in respect of the historical claims should be withheld until we know that New Zealanders are to be rid of the treaty once the settlements are made. 
I see no place in a constitution of a contented society for a document that people call a foundation document that states that people can claim inherited privilege on the basis of their ethnic inheritance. That is exactly what the contemporary arguments say. When the Hon Margaret Wilson became the Minister in 1999 she told the House that there would be a statement of the principles as the basis on which claims that were not historical would be approached. That document has never emerged. I do not know whether any work has even been done on it in the last 3 or 4 years. We were told in the first year that there was a lot of work being done on the principles for settlement of the so-called contemporary claims but we have never seen it. There was to be a whole-of-Government approach. I think the office that is represented by officials here today was to be in charge of it. It got too hard. 
The contemporary claims are now scattered throughout the Government and we have no idea whether there is any consistency in approach whatsoever. The honourable John Tamihere was in charge of dealing with some of them—the Wai 262 claim for example which I think is one of the claims that is most likely to cause offence between Pakeha and Maori. The Wai 262 claim which should have been included here is a matter that— 
Darren Hughes 
: Two percent support in the polls. 
STEPHEN FRANKS 
: Is the Government whip complaining about another call being granted? 
Hon David Cunliffe 
: He is just observing that ACT is 2 percent in the polls. 
STEPHEN FRANKS 
: Two percent. This is a very very arrogant Government. The arguments being put forward are arguments the people of this country have wanted to hear in this Parliament for 20 years. A speech from Dr Brash caused such a crumble in Labour’s support because it was what people had been dying to hear. A speech like that caused such a reaction and the Minister’s only response on a question of whether the treaty is truly a fundamental constitutional document was to throw out a jibe about party support. What a feeble and inadequate response! There must be something that he feels will be achieved. 
Hon David Cunliffe 
: Who is your target market? 
STEPHEN FRANKS 
: The target market for this speech is in fact New Zealanders who are asking where this treaty industry is taking us. How do we know that anything is full and final? 
Hon David Cunliffe 
: Two percent! 
STEPHEN FRANKS 
: Does the Minister think that only two percent of people are worried about that? The Minister needs to look at the polls that did not tell him what was creeping up when Dr Brash made his speech. When Dr Brash made his speech Labour was just as cocky. The consequences will come again. 
But the question that Part 3 raises is: what is a settlement? What is “full and final”? How do we know that this legislation matters at all when the contemporary claims have been left fully alive—that is anything that has happened after 1992? All of the sense of grievance can be regenerated in another generation. It can all come back. If there is not truly a partnership—if we are not all living here as part of the Crown under the Sovereign—and if instead we are negotiating through our representatives for a privilege based on our ethnic origins then there can be no final settlement. This settlement will mean nothing if that is the foundation for New Zealand’s polity. If that is the basis on which we relate to each other—that we share the spoils of power which is the way that Labour approaches government—then there is no end to this and the settlements are nothing more than a temporary payment to postpone the next instalment. 
The question was put that the amendments set out on Supplementary Order Paper 367 in the name of the Hon Mark Burton to Part 3 be agreed to. 
Amendments agreed to and Part 3 as amended agreed to. 
Part 4 Cultural redress 
The CHAIRPERSON (Hon Clem Simich) 
: This includes debate on schedules 1 to 9. 
Hon GEORGINA TE HEUHEU (National) 
: 
 Part 4 deals with cultural redress which this Parliament will have become familiar with. For those people who might be listening it is part of a package of redress options that the Crown usually negotiates with claimants. There is usually some financial redress property redress and cultural redress. 
I want to mention an issue that the National team has raised in a number of debates not just on this bill but in other debates on bills that are currently before Parliament and also in the debate on the Ngati Awa Claims Settlement Act that was passed into law 2 weeks ago. Statutory acknowledgments essentially give some preference in various ways to various sites in a particular tribe’s rohe and give recognition to the fact that customarily the tribe exercised certain rights—they lived in certain places and gathered food in certain areas. This acknowledgment is an attempt to recognise those customary practices. 
The issue that has been concerning the National Party over recent months is the sets of narratives that accompany recognition of these statutory acknowledgments. I think our colleague Pita Paraone has referred to this already this evening. The tribes rightly are required to show their connections with various rivers mountains hills and land sites. That is a proper thing to do and those recognitions are acknowledged in the deed of settlement. But I think there is an issue about that recognition becoming part of the bill. To demonstrate this we were presented with a schedule that recounted how the geothermal resource came from Hawaiki to Tongariro in my own area. Suffice to say that schedule did not find its way into the bill that is now before us and for good reason in this case because Ngati Tuwharetoa Bay of Plenty gave a recitation of the coming of fire so to speak from Hawaiki to Tongariro which in some respects precluded Ngati Tuwharetoa my own people from telling their story as to how that geothermal resource came to exist in Aotearoa. Thankfully Ngati Tuwharetoa Bay of Plenty were persuaded that their acknowledgment and the recognition of their relationship with the geothermal resource could just as easily be accommodated by its recitation in the deed of settlement and therefore it did not find its way into the bill. 
These acknowledgments are made up of a mixture of mythology and history but very often it is mythology. That does not make it wrong but it does present a problem. 
Dr Wayne Mapp 
: It shouldn’t be part of the law. 
Hon GEORGINA TE HEUHEU 
: Yes it does present a problem for us as legislators as to whether we should be incorporating those sorts of stories and mythologies into the law. Increasingly National is of the opinion that if it is not necessary to put it into the bill itself then why should it be in the schedules? It is not so fatal as to make us vote against the settlement legislation but Parliament should be careful as to what it puts into the law. 
Dr WAYNE MAPP (National—North Shore) 
: 
 I would like to thank my colleague Georgina te Heuheu for drawing out the point of the role of the law and mythology. Certainly one recognises that all peoples throughout the entire world have their myths legends and beliefs because this is part of the human condition. We have tried in this country as much as is reasonably possible to keep the spiritual world apart from our law. We do it for good reason. We do it because we want to treat all people equally irrespective of their beliefs. Difficulty occurs when people’s beliefs are elevated into the law. It is exclusionary—it excludes others in essence. 
I have heard the Prime Minister talk about one of the values of New Zealand being that it is a secular society and I happen to agree with her. We are a secular society. That does not mean to say that we are an irreligious society or that we are a society without beliefs. It is saying however that we do not put those beliefs into the law because the intent is that we treat all our citizens equally irrespective of the beliefs they might happen to have. That enables each person and each group to have their beliefs—to celebrate them to commemorate them and to pay observance to them. We treat that as standing outside the law of the land. So our secular society is another way of saying that we are all equal before the law. 
National has taken the view that the myths and legends referred to in the various schedules—for instance schedule 9 refers to the fire gods Pupu and Hoata and schedule 6 refers to islands disappearing as a result of karakia—do not have a place in the law of the land because they infringe the idea that we are all treated equally. As my colleague said we will not be using that as a reason to vote against the legislation but we are saying that settlements of this nature should not have those references in them. Moreover they are not even required. Ngati Tuwharetoa Bay of Plenty do not require those references to establish their connections. They can do that by temporal references rather than spiritual references. That is the role of the law as opposed to the role of belief in our society. 
So I am taking the opportunity along with my colleague to say that we need to think afresh about this because it is about the values of our country. I have heard the Prime Minister speak of the importance of secular society. I presume she understands what she means when she says that which is that we are all able to be treated equally in our own country. 
Hon MARK BURTON (Minister in charge of Treaty of Waitangi Negotiations) 
: 
 I say in brief response that I think the points made are certainly worthy of consideration for future reference. I acknowledged that myself to the Maori Affairs Committee when we met concerning this matter. In looking to future settlements and to the legislation and at the link between them and the deeds I think indeed that this is a matter that can be properly discussed. I think the potential difficulty in this case was that in good faith the negotiators had reached a point where the legislation was to reflect by repetition of those records what is contained within the deed. 
I want to put on record my appreciation of the willingness of Ngati Tuwharetoa Bay of Plenty negotiators to be responsive to the concerns that were raised and their willingness to have that amendment agreed to. I think that allowed us all to move forward constructively and to bring the legislation back to the House with a general agreement. Rather than discord we are having a sensible discussion about how we will deal with these matters in the future. 
STEPHEN FRANKS (ACT) 
: 
 I was going to say that Part 4 is the guts of the bill but it is not. Part 3 is the recognition of settlement. Part 4 is full of the provisions that should really worry people about the future of the settlement. It is simply stuffed with provisions that no one can tell the meaning of. Part 4 hands out a new generation’s bangles and beads to Ngati Tuwharetoa. The protocols look as if they are offering something from the perspective of a believer in a good-faith approach but when we get down to the legal language we see they are deliberately stated to mean nothing in terms of impact or enforceability. 
The ideas of cultural redress properties and of statutory acknowledgments are expressly said in one part to be an acknowledgment by the Crown of the particular cultural spiritual historical and traditional associations of Ngati Tuwharetoa with the statutory areas listed. Then a statement of purpose requires the Environment Court and the Historic Places Trust to have regard to them to ensure that Ngati Tuwharetoa gets notice of resource management applications in order to allow it to cite statutory acknowledgments as evidence of association. It says that the statutory consent authorities including the Environment Court must have regard to those acknowledgments and that they must be recorded on statutory plans but states further on that the contents are not binding as deemed fact on any of those authorities. So the authorities have to have regard to the acknowledgments but they need not treat them as statements of fact. The part then states that they are not exclusive so the association would appear not to give a privilege—although I think it is intended to look as if it is giving a privilege. 
The provisions go further for example into the geothermal statutory acknowledgments and say that they do not really mean anything to anyone else. So what is it that one has when one does a negotiation sets out the instruments—in the most authoritative form of instrument that this country knows an Act of Parliament—and states on one page that people have to have regard to them and then on all the succeeding pages says that they do not mean anything? The Minister might care to explain in just a few words exactly what the acknowledgments intend to confer. Are these valuable or not? Future generations will say that they cannot accept that the Crown and Parliament set out once again to mislead and cannot believe that a Parliament would spend time going into these things to create instruments that do not mean anything—instruments that a body is directed to have regard to but is then told are not binding. 
So what does it mean? Why is there no definition of “having regard to”? Why will the courts be left to try to decide under the normal statutory rules of interpretation that Parliament must have intended it to mean something when the words say that it does not? We are setting this up for the same kind of confusion that New Zealand has been bedevilled by ever since Parliament put those ridiculous words into the State-Owned Enterprises Act—that nothing shall be inconsistent with the principles of the Treaty of Waitangi—when it knew that no one knew what those principles were. 
These bills will be made to mean something by courts. It might not be that the courts are setting out to cause strife—the sort of strife this Government got itself into when the courts decided that the seabed and foreshore were not owned by the Crown as everyone had assumed for 100 years. They may not set out to cause strife but they are bound to try to give some meaning—other than sleight of hand—to a statutory document. The Minister surely can tell us exactly what is meant by for example clause 56 that states: “The entry into a deed of recognition does not in relation to a statutory area to which a deed of recognition applies—(a) require the Crown …”. 
PITA PARAONE (NZ First) 
: 
 I want to make some comment on this part of the bill—particularly in terms of some of the comments made by those who have already spoken—given that it is all about cultural redress. 
Reference has been made to the narratives regarding cultural connection that have been excluded from and included in the bill. I say right from the outset that Ngati Tuwharetoa have a right to their beliefs and their tikanga. We in New Zealand First do not have any gripe with that. For that matter any group—Maori or non-Maori—in this country is entitled to its view. 
However New Zealand First is concerned that those beliefs should not be legislated for in order to give credibility to them. Our concern is that the fact that this reference has been included in this legislation will give credibility to those beliefs. It is very important to note that there was an earlier intention to include a reference in the bill as to where fire came from and that the Government agreed to exclude that. 
The important issue for me is that the exclusion of those references would not affect this settlement or the effect intended by this bill. Of course one could rightly ask whether their inclusion was something the Crown was happy about in order to give the sense or feeling to the claimants that they were getting something they wanted with the Crown knowing that it would not be too much of a concern to the Crown. 
But the question that needs to be asked is what the effect of including those beliefs in legislation is. In considering that question we must look to the future. Are those beliefs what future generations of New Zealanders will have to believe in even though they may not be of Ngati Tuwharetoa descent? That is the major crux of the concern I am expressing. I just want to make it quite clear that we certainly do not wish to contradict the beliefs of Ngati Tuwharetoa or of any other such group. 
Progress reported. 
Report adopted.