Franks Stephen: Ngati Tuwharetoa (Bay of Plenty) Claims Settlement Bill — Instruction to Committee In Committee 
Franks Stephen: Ngati Tuwharetoa (Bay of Plenty) Claims Settlement Bill — Instruction to Committee In Committee 
[Volume:625;Page:20217] 
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 …”.