Finlayson Christopher: Principles of the Treaty of Waitangi Deletion Bill — First Reading 
Finlayson Christopher: Principles of the Treaty of Waitangi Deletion Bill — First Reading 
[Volume:632;Page:4454] 
CHRISTOPHER FINLAYSON (National) 
: 
 National supports the first reading of the Principles of the Treaty of Waitangi Deletion Bill but says there is much work to be done on it at the select committee stage. I observe that if all parties treat this matter seriously rather than simply posturing there is an opportunity to make considerable improvements to the law. 
I begin by making a brief comment about what I regard as an intemperate and crude populist remark contained in the explanatory note to the bill. I am referring to the comment about the task of interpreting such clauses having fallen to judges who “have taken an increasingly activist liberal and broad licence in providing a form of definition.” In my experience there are two kinds of judges: conservative and very conservative. The suggestion that these clauses are being interpreted by wild-eyed liberals is insulting to the judiciary. Any problems that have arisen with Treaty clauses are because this place has either failed to provide an adequate definition of what Treaty principles are or has mindlessly inserted them in legislation in an inappropriate way. This is an opportunity to tidy things up. 
As Mr Woolerton observed there is no comprehensive or authoritative list of principles of the Treaty of Waitangi but guidance can be obtained from some judgments and I also refer to the Law Commission’s study paper  
Maori Custom and Values in New Zealand Law 
 where there is a very interesting and useful discussion about Treaty principles. Interestingly that report referred to a submission the Law Commission had made to the Health Committee on the New Zealand Public Health and Disability Bill 2000 urging Parliament so far as possible to provide the courts with guidance as to its precise intention when referring to principles of the Treaty of Waitangi in legislation. The commission noted that those who are required to comply with a statute must be able to ascertain with some degree of certainty what they have to do or omit to do in order to comply. The undesirability of resolving uncertainty by reference to a court was expressly noted but needless to say the Law Commission’s submission was ignored by the Government. 
This really is a pretty second-rate piece of work by Mr Woolerton. An example of his inattention to detail can be seen in his seeking to repeal Treaty references in repealed legislation. The Foreshore and Seabed Endowment Revesting Act 1991 and the Maori Fisheries Act 1989 have been repealed and I very much look forward to Mr Woolerton or Mr Donnelly saying something about what exactly New Zealand First is hoping to achieve by deleting Treaty references from repealed legislation. 
R Doug Woolerton 
: I’ll have to sack the lawyer. 
CHRISTOPHER FINLAYSON 
: Yes the member will have to sack the lawyer who drafted it! But it is the member’s name that is on the bill and he bears the responsibility for this kind of sloppiness. 
There are four aspects of the legislation I wish to refer to that are contained in Mr Woolerton’s bill: first general legislation; second private Acts; third settlement legislation; and fourth two important Treaty statutes that deserve special attention. I refer first to general legislation. The National Party cannot see any reason why there needs to be specific Treaty references in legislation like the Crown Research Institutes Act the Crown Minerals Act or the Crown Pastoral Land Act. These pieces of legislation have general applicability; there is no need for a Treaty reference there. 
I have greater difficulty with private legislation and there are at least three examples of private Acts that are referred to in Mr Woolerton’s bill—namely the Royal New Zealand Foundation of the Blind Act the Royal Society of New Zealand Act and the Te Runanga o Ngai Tahu Act of 1996. These three Acts contain Treaty clauses but private Acts are passed for the benefit of particular individuals or persons and sometimes exempt individuals from requirements of the general law. An example of a private Act is the Sydenham Money Club Act which reconstituted the Sydenham Money Club from a credit union to a building society. As a matter of principle I have a few doubts about whether Parliament should unilaterally be interfering with private legislation. If individuals have agreed on the substance of the legislation and the legislation is then passed by Parliament I do not know that Parliament should necessarily be deleting Treaty provisions from those Acts. But that is something the select committee can look at in closer detail. 
Then we have settlement legislation and Mr Woolerton’s bill refers to a number of pieces of settlement legislation—for example the Ngati Tama Claims Settlement Act of 2003 and the Ngai Tahu Claims Settlement Act of 1998. Interestingly the member or the person who was the author of this legislation failed to refer to a number of recent pieces of settlement legislation such as the Ngati Awa Claims Settlement Act of 2005. Many of the references to Treaty principles are contained in the preamble or in the formal apology of the Crown that has been incorporated in the statute. As a matter of legislative drafting I do not know that it is particularly wise to incorporate apologies in the form of the statute but that having been done I have some doubts in relation to settlement legislation about whether particular references to principles of the Treaty or the Treaty should be removed. Again that is an issue the select committee can look at when it comes to consider this bill. 
Two other important Treaty statutes need specific reference and these are the fourth category I identified. The first is the Treaty of Waitangi Act 1975 from which my friend Mr Woolerton seeks to remove any reference to principles of the Treaty. But such an amendment would remove the very jurisdiction of the tribunal which was established to investigate breaches of the Treaty and I cannot see that this Parliament can responsibly and indeed sensibly—if New Zealand First does not want to be sensible it should be at least responsible—delete the proposal that the Treaty of Waitangi Act be amended by deleting those provisions. Then there is the Treaty of Waitangi (Fisheries Claims) Settlement Act of 1992 particularly the references to section 10 which Mr Woolerton refers to where for example a provision requires consultation in accordance with the principles of the Treaty of Waitangi. That is an example of where the phrase is simply meaningless adds nothing to the section and could be deleted. 
So as can be seen quite a lot of work needs to be done on this legislation but I believe it provides the select committee with an opportunity to clean up a bit of legislative mess that has developed over the years and I would not have thought the Government would necessarily be opposed to that. Indeed once upon a time we had a Coordinating Minister Race Relations. It was only Mr Mallard and he held the portfolio for only a short period of time. I think he was as effective as Coordinating Minister Race Relations as the member for Te Tai Tonga would know as he was as Minister of Education—[ 
Interruption 
] I do not know that the member should do that—and as he is now Minister for Economic Development. But in 2004 the new Coordinating Minister Race Relations said that many references to the Treaty of Waitangi in legislation may not be relevant and that he would be reviewing references to the Treaty in legislation. Did he do anything? No of course he did not. Then in February 2004 he said that the Treaty was in quite a few Acts and that principles are set in them that are quite inconsistent and in some cases a bit incoherent—just like he is at question time. 
So this bill provides an opportunity for the select committee to look at this legislation—because I agree there are some inconsistent and incoherent references to the Treaty—and do a decent job to tidy it up. As a member of the Justice and Electoral Committee— 
Darren Hughes 
: Deputy chair. 
CHRISTOPHER FINLAYSON 
: deputy chairman as the boy wonder from Otaki says—I look forward to receiving this bill in the select committee having a good look at it and seeing whether we can do something with it because even though it is flawed in its present form it does raise a number of important issues. I think that if the select committee does its job we can tidy it up very well.