Flavell Te Ururoa: Climate Change (Emissions Trading and Renewable Preference) Bill — In Committee 
Flavell Te Ururoa: Climate Change (Emissions Trading and Renewable Preference) Bill — In Committee 
[Volume:649;Page:18136] 
TE URUROA FLAVELL (Maori Party—Waiariki) 
: 
 Kia ora Madam Chair. Thank you very much. Just as a warning I say that I am looking to try to spin out two calls to talk to our Supplementary Order Paper 240 which has been put in my name in respect of inserting a new clause 2A after clause 2. It says that the Act is to give effect to the Treaty of Waitangi. As the explanatory note says “An explicit reference to the Treaty of Waitangi is added to the Climate Change (Emissions Trading and Renewable Preference) Bill to ensure that the Emissions Trading Scheme will be implemented and operated in accordance with the rights guaranteed to Maori under the Treaty of Waitangi.” That is a relatively short statement but in fact its effects are far-reaching. 
Nearly 30 Maori entities apparently made submissions on this bill including runanga trusts corporations and representative bodies including the Federation of Maori Authorities. Many of these submitters raised concerns at their hearing before the Finance and Expenditure Committee that this bill as introduced conflicts with the principles and provisions of Te Ture Whenua Maori Act 1993 and breaches Te Tiriti o Waitangi. In particular it breaches article 2 of the Treaty by posing an encumbrance over Maori land that fails to uphold the Crown’s guarantee to protect rangatiratanga. For this reason Maori submitters have argued that the bill is in effect an alienation of Maori land and Maori rights and authority over their land. 
Submitters have also argued that under this bill the Crown has assumed to itself the ownership allocation and management of the carbon allocation resource. They have argued that instead of wholesale ownership and control the Crown is meant to consult with its Treaty partner to protect the rangatiratanga of Maori and compensate if it cannot do that. As a remedy submitters asked the committee to add a Treaty clause to the bill to ensure that the implementation and operation of the emissions trading scheme shall not be inconsistent with the Treaty of Waitangi. This request was obviously ignored similar to many other requests to honour and uphold the Treaty. But the Maori Party will not ignore the rights of our people to have the guarantee of rangatiratanga upheld and we submit this amendment to have a Treaty clause added to this bill. 
We seek to include the words: “This Act shall be so interpreted and administered as to give effect to the Treaty of Waitangi.” To give effect to the Treaty “creates more positive and substantive obligations on all bodies covered by the Act … to give effect to the Treaty principles and so carries a higher likelihood that the Courts will be called on to interpret its application in the sector;”. “If identifiable Maori rights and interests protected by the Treaty would be affected by proposed legislation”—and here is the catch—“ the question may arise whether there should as a matter of policy be some specific recognition or protection of those rights and interests by the inclusion of an appropriate provision in the legislation.” In any event there will be a question of the effect of the proposed legislation on these rights and interests whether or not such a provision is included. 
For examples of the identifiable Maori rights and interests protected by the Treaty that stand to be threatened by this bill we need only turn to Ngai Tahu—I broached some of these issues today in question time. The first day of spring as we know was fairly significant for one reason. It was on this day—or at least last night—that a late Waitangi Tribunal claim was filed in response to a large iwi concerned about what they called a significant threat to their 1998 Treaty settlement. According to the Kaiwhakahaere of Te Runanga o Ngai Tahu Mark Solomon this emissions trading scheme will undermine their settlement and unwind the very purpose of the settlement that they set out to achieve over the lives of many generations of Ngai Tahu. This condemnation of the Government’s flagship policy came from none other than Te Runanga o Ngai Tahu as I said who boldly stood up and told the nation that the legislation before the House right now would “literally wipe tens of millions of dollars off the value of the forestry assets we received as part of our settlement”. 
This was an urgent call from Ngai Tahu because they were concerned that every effort must be made to safeguard the interests of Ngai Tahu whanui. In effect their view is that the Crown continues to threaten the integrity of the Ngai Tahu settlement. So it is an affront on this iwi that the Minister today might provide—from the Government perspective at least—some rebuttal to some of the questions I put to him. Nevertheless Ngai Tahu believe that some serious concerns need to be placed in front of the country and obviously followed through by way of submitting a Treaty claim to the Waitangi Tribunal before the closing-off date yesterday. 
That would not have been an easy decision for Ngai Tahu to take. Mark Solomon has put the case that this emissions trading scheme as I have said represents a threat to both the integrity and the finality of their settlement and the very least that the Government should have done would be to listen to their concerns and at least ask why. This is not the first time this sort of concern has come before the Government. Indeed as I indicated today one of its own departments alerted it to the threat that this scheme could cost taxpayers hundreds of millions of dollars in payments to iwi. I talked about a Ministry of Agriculture and Forestry report obtained by media last month which suggested that the scheme could leave the Crown open to substantial claims because the value of land handed to iwi under Treaty of Waitangi settlements could substantially decrease. 
So it is appropriate that Ngai Tahu have some concerns because the emissions trading scheme basically jeopardises their settlement and in their view this amounts to another confiscation. Iwi that have already signed up to agreements many years ago will have to carry the burden of the emissions trading scheme into the future. The problem is that when the door is closed on settlements we are leaving it for that iwi to carry the burden of the fact that with the passing of this bill they will have no opportunity to revisit the ramifications of such a bill on earlier settlements. That is what we have seen in the settlement process time and time again: it creates a new grievance. 
The Crown mistakenly believes that one issue has been settled and that it can turn its back on iwi. Well that is not how it works. For us the concept of settlement is about bringing iwi together with the Crown to work constructively. Ngai Tahu want to do that with the Crown and that is absolutely appropriate. But we do understand their concern that with the passing of this bill we are creating another grievance. 
It is a view that others hold also. Tangata whenua have continually maintained that the provisions of the bill relating to pre-1990 forested Maori land are contrary to the provisions of the Treaty and we say that the emissions trading scheme undermines the principles of both Te Tiriti and Te Ture Whenua Maori Act. The preamble—if members did not know—to Te Ture Whenua Maori Act clearly states in alliance to other principles of the Treaty provision for among other things the “development and utilisation of that land for the benefit of its owners their whanau and their hapu:”. This right is clearly extinguished when a significant cost is imposed on Maori owners to change their land use from forestry when benefit to owners would be achieved by making such a change. We have also received advice just this morning from Maori who have let us know that when the first cases go to the Maori Land Court which they will inevitably do when the Ministry for the Environment chief executive tries to have memorials registered on pre-1990 forested Maori land titles then they will turn to Labour the Greens and New Zealand First to say that this is what happens when important legislation is dealt with in such a shonky backroom way. 
NgaiTahu’s concerns for the land and forestry assets are not the only reason the Maori Party opposes this bill—there are others of course. We accept that any emissions reduction programme will result in changes to land values and will enable the Government business and the public to account for environmental costs on business including forestry. So that is not the reason why we oppose the bill. The primary reasons are that it is not effective in reducing emissions it is not transparent and the polluters do not pay—they receive massive subsidies in the form of corporate welfare. The whole point of economic incentives to cut emissions is defeated. 
Our Supplementary Order Paper is the best shot at pulling on to the agenda all of the concerns that Maori hold. It is a short statement but as I said right from the very start we hope the ramifications of such a Supplementary Order Paper will be far-reaching.