Finlayson Christopher: Te Arawa Lakes Settlement Bill — First Reading 
Finlayson Christopher: Te Arawa Lakes Settlement Bill — First Reading 
[Volume:630;Page:2800] 
CHRISTOPHER FINLAYSON (National) 
: 
 I begin my speech this afternoon by acknowledging the great and noble confederation of iwi and hapu of Te Arawa and to welcome their representatives to our House. I also acknowledge the presence of their advisers including my good friends and former colleagues Paul Radich and Jessica Hodgson who are now lawyers in Izard Weston. They spent many hours in the period leading up to the deed of settlement being signed working with David Tapsell and others in Te Arawa to ensure that the deed of settlement could be signed on 18 December 2004. I also acknowledge my old friend David Tapsell with whom I worked in two law firms most recently at Bell Gully and I acknowledge his father Peter Tapsell who as we all know was a great member of this House and a very wise and just Speaker. 
Settlements between the Crown and iwi can be great occasions in the life of our country. I said in my maiden speech that for me 21 November 1997 was the proudest moment of my legal career when as one of the team who had worked for Ngai Tahu for many years against the Crown I went to Kaikoura and witnessed Sir Tipene O’Regan and the former Prime Minister Jim Bolger sign the deed of settlement. Because of the excellent work done by Georgina te Heuheu and others in this House in 1998 the Ngai Tahu Claims Settlement Act was passed towards the end of that year. So Treaty settlements can be a great occasion as I have said in the life of the country. To quote the words of Isaiah they can undo many of the heavy burdens of the past and enable our peoples to look to the future with confidence and optimism. 
So as a legislator it is with a very heavy heart that I am required to stand in this House today and express my grave concerns about this legislation because quite frankly I think Te Arawa have been let down. I particularly want to focus on clauses 7 and 9 of the bill to illustrate just what I am talking about. 
The first point is that I do not believe that acknowledgments and apologies should be contained in legislation. One of the reasons for that is illustrated by a member’s bill under the name of one of the New Zealand First members—and I think it is Mr Peters himself—which seeks to delete all references to the Treaty and references to the principles of the Treaty from legislation. So if that bill was passed we should think of what that would do to clauses 7 and 9 of this legislation. The best way of dealing with apologies is to have them contained in deeds as separate documents but not to incorporate them in legislation. 
 The second point—and it is a fundamental point and time and time again it has been said to members of this House and I will say it again—is that this legislation contains in clauses 7 and 9 vague and formulaic references to the Treaty which as I said I believe are insulting and have the same tone of sincerity as MPs withdrawing and apologising in this House. Let me refer to subclause (2) of clause 7. There the Crown acknowledges various things and says that it was in breach of the Treaty of Waitangi and its principles. But what principles? Subclause (4) of clause 7 acknowledges— 
Hon Mita Ririnui 
: Protection. 
CHRISTOPHER FINLAYSON 
: —I will come to that—that it failed to review the annuity paid to Te Arawa as part of its 1992 agreement as a result of inflation and was a breach of the Treaty and its principles. If it is active protection we are talking about why is that not explicitly stated in the bill? Then there is clause 9 which states: “The Crown profoundly regrets and unreservedly apologises to Te Arawa for the breaches of te Tiriti o Waitangi (the Treaty of Waitangi) and its principles acknowledged above.” What does that mean? Select committees cannot amend apologies; apologies come from the Crown. This bill should be withdrawn by the Government and tidied up because these are fundamental errors. If one is going to refer to principles of the Treaty one should state exactly which principles one is referring to. 
In general terms there are about nine key or central principles that have been extracted over the years from various cases and reports of the Waitangi Tribunal. The first is that the Crown has an obligation to actively protect Maori interests. One of the Labour members interjected and said: “Oh that’s what this is about.” Well the legislation should say so. The second one is that Crown and Maori have mutual obligations to act reasonably and in good faith. The third one is that the Treaty has to be adapted to modern rapidly changing circumstances. The fourth one is that there is a principle of mutual benefit that should be applied. The fifth is that the Treaty has a basic object of two peoples living together in one country and this concept lays the foundation for the principle of partnership. The sixth is that the Crown has guaranteed rangatiratanga to all iwi and that includes the implicit guarantee that the Crown would not allow one iwi an unfair advantage over another. The seventh is that the Crown has an obligation to recognise rangatiratanga. 
There is an eighth principle and it has not been picked up in many of the commentaries over the years but it arises out of a case concerning the Ngai Tahu Maori Trust Board and the Department of Conservation—a case I was involved in for Whale Watch Kaikoura. We succeeded in persuading the Crown that section 4 of the Conservation Act 1987 meant that Ngai Tahu should have a reasonable degree of preference when it came to the operation of Whale Watch Kaikoura vis-à-vis others who might seek to enter that particular operation off Kaikoura. 
So it is not too hard to spell out what exactly one is talking about when one refers to the principles of the Treaty. This is yet another example of lazy drafting and poor workmanship by this Government. And it is worse than that as I said because of the sloppiness of it and because of the inadequacy of it—it has all the hallmarks of insincerity which only the Crown is capable of showing. 
My next point refers to what the Law Commission said in its publication  
Maori Custom and Values in New Zealand Law 
. It referred to a submission that the Law Commission had made to the Health Committee on the New Zealand Public Health and Disability Bill 2000 which urged Parliament as far as possible to provide the courts with guidance as to its precise intention when referring to the principles of the Treaty of Waitangi in legislation. Of course there the Law Commission was referring to clauses such as section 4 of the Conservation Act or section 9 of the State-Owned Enterprises Act. But I think the same point needs to be made if the Crown is going to include Treaty of Waitangi references in legislation. 
I really do believe these are quite fundamental points I have endeavoured to raise in relation to acknowledgments and apologies contained in this legislation. I do not believe they are capable of being cured by a select committee; the select committee cannot tinker with apologies. The proper thing for the Crown to do is to withdraw this legislation and do a better job because I think the people of Te Arawa deserve better than this very B grade effort. I also think these concerns I have raised echo what my friend Dr Pita Sharples has said—that given all these problems with the Treaty settlement process it certainly would not hurt to take stock and see where we are going because this is a poor effort and these good people have travelled a long way for not very much at all.