CHRISTOPHER FINLAYSON (National) : There is a certain air of unreality in going straight from a second reading to debating the preamble, and there is a danger that, in this air of unreality, there will be unnecessary repetition. Of course, the Committee does not want to hear unnecessary repetition from me. I must confess that my primary interest in the bill, and the area I want to speak on, is schedule 2, which is the tikanga-based resolution process for the allocation of land, so I will be reasonably brief in speaking about the preamble.

I simply say that I am particularly interested in recital (4), which talks about the way in which the allocation is to occur. It refers to the terms of the deed of trust. As we heard last night from the Minister in charge of Treaty of Waitangi Negotiations, almost 86.5 percent of the beneficial interest in the forests is to be held for the collective, “and the individual beneficial entitlement of each member of that Collective is to be determined by reference to the allocation process that has been agreed amongst those members and is set out in this Act.” That is a reference, first, to schedule 3, which sets out the percentages for allocation of rental proceeds. I must say that I think those percentages have been prepared to an admirable level. For example, Tūhoe are entitled to 27.2987 percent of the total, and how that was worked out, I do not know.

More particularly, I will focus on schedule 2, which deals with the way in which the allocation process is to occur. As we can see from that schedule, which I will look at in far greater detail when we get to it, there are essentially three stages. I am particularly interested in stage 3, and the effect of that type of adjudication process on the ability of courts to interfere in any decision that may be reached.

The preamble is a quite straightforward part of the bill. It sets out the background, and it sets out that the Crown and the collective agreed to negotiate in good faith, have established a framework, and have established the percentages and a means by which each individual member of the collective is to be allocated a particular portion. I think that is all I need to say about the preamble; we must move on and get to the real heart of the bill.

Hon GEORGINA TE HEUHEU (National) : My colleague Chris Finlayson is right, of course: the preamble is reasonably straightforward. It is important for the fact that it lays the groundwork for the rest of the bill, and sets out that “(1) The historical CNI forests land claims … are based on historical breaches of the Treaty of Waitangi by the Crown and the desire of [the iwi involved] to secure the return of that land”—basically, the land lying beneath the Kaingaroa Forest—“and to achieve an enduring settlement of those claims:”.

The iwi of the Central North Island Iwi Collective comprise over 100,000 individuals, and they have interests that span a major proportion of the central North Island. This settlement relates to 175,000 hectares of central North Island forest land, and has its genesis in that land and in the contention that has surrounded it for the last 20-odd years. Interestingly, the Crown Forest Assets Act was passed in 1989, so that is a long time for something to be done about this matter. I remember that Richard Prebble sat on the Māori Affairs Committee during his last term in Parliament. He was one of the main movers behind the Crown Forest Assets Act, and he shared with Māori Affairs Committee members at the time that the issues surrounding the sale of Crown forests, in terms of Māori interests—that is, the land—were meant to be settled within about 3 or 4 years. Here we are now, in 2008, and next year it will be 20 years exactly since that Act was passed.

It is important to remind ourselves of the Act that was passed then, because it sits behind the bill and its opening statements. Basically, Māori took an action to the courts, and, as a result of hard-fought and successful litigation on their part, that Act was brought in. A big part of it protected Māori interests in the land that is now part of this settlement—but not substantially, because the land interests still have to be dealt with, and some of us have referred to that in our second reading speeches. This bill deals with the commercial side of the settlement; as for the land issues in terms of allocation to the various iwi interests, that exercise is still to occur. The rentals from the licences were set aside upon the passing of the 1989 legislation, until the claims over the forests could be resolved. As I have already said, that has taken longer than anyone had ever dreamt possible. I guess we have to wonder about the development costs to Māori in terms of lost opportunities over the years, but I am very pleased that we are here today, discussing the bill and the settlement.

Recital (2) of the preamble sets out that the two parties, the Crown and the Central North Island Iwi Collective, agreed to negotiate in good faith. That has been referred to in previous speeches, as well. When a settlement of this type comes together in the way that this one has, with a long gestation, we may ask whether that says something about the slowness of the Crown, or about the various iwi interests not seeing a way to work together. Fortunately, those things have been worked through.

I think the preamble is fairly clear. It sets out what comes later, and we will refer to some of the issues that are raised behind the preamble as the Committee debate progresses.

TE URUROA FLAVELL (Māori Party—Waiariki) : Tēnā nō tātou. I have a few questions for the Minister in the chair, the Hon Mita Ririnui, even though we are just starting to hook into the debate, and they are really just for clarification.

I note that the preamble refers to 86.4 percent of the beneficial interest, which I suppose implies that Ngāti Rangitihi, who were a part of the collective, come under the 13.6 percent of the beneficial interest that has been tagged for remaining beneficiaries. I want to check with the Minister whether that is the case, even though Ngāti Rangitihi are not named. I know that this issue crosses over into Part 1 and into the schedules as well, in terms of named iwi, but I want to check on the issues around Ngāti Rangitihi and where their part might be in terms of that matter.

Could the Minister also give us some information about whether any progress was made at the mandate hui held over the weekend? Although I have not had submissions from Ngāti Rangitihi or any of the factions, I want to ensure that we can say that Ngāti Rangitihi’s interests have been protected, and I want to know whether there are any implications—I think I know what those implications are, anyway—if they do not meet the 24 December deadline. Perhaps the Minister could give us some outlines around that matter.

My main interest in the preamble is recital (4)—namely, the 86.4 percent of the beneficial interest, etc. I seek clarification specifically about the Ngāti Rangitihi issue. I ask the Minister to take a call and give us some feedback. Thank you.

Hon MITA RIRINUI (Associate Minister in charge of Treaty of Waitangi Negotiations) : For the benefit of the member Te Ururoa Flavell, I will be very specific in terms of his queries about the preamble to the bill. If the member looks at recital (4) very carefully, he will see that it is quite specific about the interests of Ngāti Rangitihi. He asked a question about the progress being made in resolving the issue of a mandate within Ngāti Rangitihi. I think it is too early to make any comment about that particular issue. It is an internal matter. There is a closing date for resolving the matter, but it is quite some time away yet. I think we should allow Ngāti Rangitihi the opportunity to resolve their internal matters and then come back to us and declare their position. Prior to that, I certainly do not intend to speculate.

TE URUROA FLAVELL (Māori Party—Waiariki) : I am sorry to labour the point, but the key issue in the discussions at the Māori Affairs Committee, and, indeed, in the submissions made to the Minister in charge of Treaty of Waitangi Negotiations, was that Ngāti Rangitihi was originally included in the bill. We know that there are mandate issues—that is not argued. I thank the Minister in the chair, Mita Ririnui, for at least saying that they are ongoing. All that I want to know is whether it is clear that Ngāti Rangitihi’s interests, which are not now specifically covered in this bill, have therefore moved to the other slot. That is all I need to know.

Hon MITA RIRINUI (Associate Minister in charge of Treaty of Waitangi Negotiations) : The preamble of the bill does not specifically mention the interests of Ngāti Rangitihi in terms of the period for which the remaining beneficial interest will be held, but the member can take it as read that it is referring to Ngāti Rangitihi.

• The question was put that the amendments set out on Supplementary Order Paper 230 in the name of the Hon Dr Michael Cullen to the preamble be agreed to.

• Amendments agreed to.

• Preamble as amended agreed to.

The CHAIRPERSON (Hon Marian Hobbs): The debate on this part includes clauses 6 to 29 and schedules 1, 2, and 3.

CHRISTOPHER FINLAYSON (National) : I am pleased that we will be debating schedule 2, because it would make no sense to debate Subpart 2 of Part 2 without looking at schedule 2.

Part 2 deals with provisions relating to the transfer of assets and to the all-important allocation principles. In my second reading speech I dealt with issues relating to public access. They are contained in clauses 10 and 11. They are in substantially the same form as the clauses contained in the Affiliate Te Arawa Iwi and Hapu Claims Settlement Bill, which we debated yesterday. I have no problem with any of that.

I come to Subpart 2, and particularly to clause 14, which is a very important clause. It sets out that “The iwi of the CNI Iwi Collective may, in accordance with the resolution process set out in Schedule 2, agree among themselves as to which specific area or areas of the CNI forests land is or are to be transferred to the iwi of the Collective.” When one looks at schedule 2 one sees that a very comprehensive resolution process is set out. The first stage is for the parties to identify their mana whenua interests, and this aspect is to be concluded by 1 October 2009. If there is a need for negotiation, one moves to the second stage, which will continue through to 30 June 2010—a very tight timetable, and I will say something about that a little later. The third stage will be to finalise the allocation agreement, which, hopefully, will be concluded by 30 June 2011.

There are two parts to the third stage. The first part is to go down the mediation route. The provisions relating to mediation are very sensible as to both whom the mediators are to be and the way in which they are to decide the matter. But if the matter has to go to adjudication, then the company has to appoint an adjudication panel. National members have no problem with the qualifications of the adjudication panel, but the way in which the panel is to reach its conclusions perhaps needs a little discussion.

Let me say at once, as one who was involved in the fisheries allocation issue for many years, that this provision is an admirable attempt to speed up resolution of any issues relating to allocation. Mr Shane Jones, of course, is the master of these things, because he was on the Treaty of Waitangi Fisheries Commission for many years—in the latter stages, as chair.

Hon Tau Henare: It doesn’t make him a master.

CHRISTOPHER FINLAYSON: It probably does not make him a master; I apologise to my colleagues for that unnecessary and undue praise. Members will recall that the 1992 Act was passed consequent upon the parties signing a deed of settlement, and the idea was that the commission was going to determine the allocation of quota. Almost immediately litigation started. It started first in relation to the lease round. Of course, the final allocation work had not been done, so the quota had to be leased. It seemed that every decision of the commission was subjected to judicial review. Then in 1996 the people of Muriwhenua commenced a claim against the commission, and that raised a huge number of issues. As I said last night, the claim went to the Privy Council on at least three occasions that I can recall. Finally, a couple of years ago, the Government passed legislation to give effect to an allocation model that had been finally worked out by the commission, but it was long, it was tortuous, it involved a huge number of proceedings, the legal expenses incurred were horrific, and the delay that occurred was most unacceptable.

That is why I think this model is an excellent attempt to speed up allocation issues. I have just a couple questions about the effectiveness of it. I agree that, as clause 6(13) of schedule 2 states, the adjudication panel appointed must have “complete discretion to determine the process and the timetable”. I also agree that it is desirable that lawyers not appear before the adjudication panel, unless all the parties agree. That may seem to be a startling statement, but one must bear in mind that we are dealing with allocation on the basis of mana whenua, and one would hope that lawyers would not get in on the act and, because of legalism, unnecessarily complicate things.

Another issue, which is extremely important and which we need to make sure we are very clear about it, arises from clause 6(15) of schedule 2, which states: “The decision of the adjudication panel will be final and binding on all the parties.” I want the Minister in the chair, Mita Ririnui, to comment on whether the Government intends that that will have the effect of ousting judicial review proceedings, because time and time again those sorts of clauses give rise to issues before the court. Let me give members an example from a judgment of Justice Temm in September 1993. A challenge was made in relation to payments made under the New Zealand Steel pension fund. Clause 18 of the trust deed set out as follows: “If any question shall arise as to the interpretation of these presents, or the rights or obligations of any member or other person hereunder, or as to any other matter touching or concerning these presents, such questions shall be decided by the trustees, whose decision shall be final and conclusive.” Members will note that those terms are similar to those contained in clause 6(15). The High Court said that that form of clause is commonly found in such deeds, but it has to be interpreted on the footing that the decision of the trustees has been lawfully made, and it must not be thought that a private transaction of this kind can prevent the courts from supervising the acts of trustees and persons of a similar status. So it did not oust the ability of the court to look at the issue.

Of course, the issue arose some years ago in relation to Mr Zaoui and his case against the Attorney-General and the Inspector-General of Intelligence and Security. There was a discussion about the ability of Mr Zaoui to seek judicial review. I will not trouble the Committee with the detail of the case, but I will refer simply to a reference to a decision of Justice Tipping in a 1995 case called O’Regan v Lousich, where he said, among other things, that it is “possible for Parliament to provide, if it chooses, that the decision of a particular decision maker shall not be impugned on certain bases, or indeed on any basis. With most types of tribunal and decision maker there is a presumption that Parliament does not intend the decision to be conclusive irrespective of errors of law, unfairness or unreasonableness …”.

My position—and I do not know what the Government’s position is—is that the jurisdiction of the courts should probably be ousted, but I do not think that that occurs here, and I do not think that clause 6(15) would prevent judicial review. We need to be clear on it. It is in the public interest and it is in the interests of these iwi that this allocation process result in a resolution by June 2011, and that the iwi not be troubled by judicial review proceedings or other types of proceedings. I simply say to the Minister that this clause will not have the effect of ousting the ability of parties to seek judicial review. If it is intended that the clause will have that effect, then I think some stronger language is required. I will be very interested in his views on that. It is a very important issue, because unless we get some clarity on it now, the parties will embark down this path and there will be at least—I am prepared to bet on it—one or two challenges to the process. Maybe it is the intention of the Crown that judicial review of an error of law, for example, will be permitted. We need clarity, and it would be helpful to hear the Minister’s view.

Hon GEORGINA TE HEUHEU (National) : Part 2 is the meat of the Central North Island Forests Land Collective Settlement Bill. I hope that the Minister will take a call to answer my colleague Chris Finlayson’s query about the ouster of judicial review.

The Minister may recall that National members flagged in our opening speeches our interest in the tikanga-based resolution process for the central North Island forests land, which is to be found in schedule 2. Although I applaud and support the fact that the Government has seen fit, on the motion of the collective itself, to bring forward or to promulgate an allocation process based on tikanga and matters that are of interest to them as iwi, and are known only by themselves, my colleague and I have a reservation about what happens if the various interests in the collective cannot agree on the allocation of the land interests. That is not to raise any doubt that they are not up to the job, but when the Māori Affairs Committee travelled to hear them it was very clear to me that they well appreciate that this area is a real test of the leadership of each of the iwi participating in the collective. It is a real test of their ability to recognise mana whenua interests of each of them in the collective, and a real test to lead and be generous in their thinking. That is what I took from many of the submitters.

But I come back to the point that, despite the best will in the world, there may come a time when agreement may not be possible. At that point I, too, am interested to know whether there remains the ability for aggrieved parties to go on judicial review. There is certainly nothing in the bill here before us that ousts it. If there were a disagreement at some future point—and we certainly hope there will not be—is there recourse to an independent outside authority? It would be an authority that is at arms-length to this process and to the iwi involved, and if called upon can address issues that may arise. Some people came to see me before the introduction of the bill and asked whether there might be room, for instance, for the Waitangi Tribunal to be that body should there be a disagreement during the allocation process. I said that I would raise the issue. I am looking forward to the Minister taking a call to tell us whether there is, in the event that it is required, recourse to an independent outside authority. I am sure that if he does not have the answer immediately, we might get that answer before the Committee stage ends.

In the end the allocation process is not a matter for the Crown. The issues of mana whenua are for the various iwi themselves to deal with. They know the principles that underlie the issues of mana whenua, and they ought to, and should—and I am sure they will, in this case—be able to resolve the allocation process without going off the rails. That is certainly what we hope.

A responsible Government acting on behalf of the Crown and the people of New Zealand has a responsibility to promulgate and pass legislation that gives maximum opportunity for the process that the iwi have devised to succeed. That process must be open, transparent, and on the record. Is it envisaged that there will be a record of the discussions that proceed when the allocation process for the land gets under way? That is important too. These things are important for future generations. It is only fair to future generations that they are able to see how the tikanga-based resolution process for their land interests was resolved. Again I come back to the point that it is important to know that there is an organisation at arm’s length should it be required. I am trusting in the leadership of each of the iwi in this collective. They have shown great leadership up to this point to bring to the Crown a model and a proposal that they largely devised. I am sure that that leadership will go on.

In fact, the bigger part of this exercise is still to come. The iwi may think they can breathe a sigh of relief because they have got over this significant first stage, but the bigger part is still to come, because they will have to manage that commercial asset. Part 2 sets out the basis on which the commercial interests—the rental proceeds and the commercial process—will proceed.

The bigger challenge is the division of the land interests, and that was certainly flagged by the submitters who came to the select committee—those iwi who feel aggrieved, who feel that the collective does not properly represent them. So there will be huge interest from all quarters in how this proceeds, not least of which, I guess, is the interest from the regions yet to settle. We heard from Minister Ririnui earlier about the ongoing work he has been involved in, in bringing other iwi into the settlement process. It looks hopeful, though. I have to say that the process that has been proposed to divide the forests land is ground-breaking. Of interest to me is that the division will not necessarily follow the percentages that have been reached for the allocation of rental proceeds, because, as I understand it, that was done on the basis of population numbers. Perhaps the Minister in the chair, the Hon Mita Ririnui, could just remind us of that. Even though Ngāi Tūhoe and Ngāti Tūwharetoa receive quite substantial rental proceeds, that is no indication of how the land interests will be divided. So that is good, something to look forward to, and hopefully something that is resolved with minimum fuss.

I must pick up on what my colleague Chris Finlayson said about leaving the lawyers out of the process. Of course, he is a lawyer, and law is my profession as well, so that could be a surprise to people. We have all seen how the involvement of the legal profession to date has been huge in these matters. It may be that the leaders, in their wisdom, devised this process partly so that the lawyers would not be there! As I say, it makes sense, because on the issues of mana whenua, iwi know best. That belongs to them. It is their tikanga.

Hon TAU HENARE (National) : I want to make a brief comment on schedule 2, “Tikanga based resolution process for CNI forests land”. It will keep the lawyers at bay, and I think that is a great thing. Over the years, unfortunately, the legal profession has made a hell of a lot of money off the backs of both the Crown and the iwi at the heart of Treaty settlements. I do not want to be too disparaging of the legal profession and of my colleagues in that respect, but in the past they have played rather too large a part in the process. So the resolution process, in the way it sets out what is to happen, is a very good one. It is to be hoped that the allocation methods of settlements that follow can take a leaf out of this bill.

I note that schedule 2 says nothing about the principles of the Treaty of Waitangi. The Affiliate Te Arawa Iwi and Hapu Claims Settlement Bill, which the House has just dealt with, specifically mentioned the principles of the Treaty, and I am staggered and gobsmacked that they are not mentioned in the bill that the Committee is debating now. I am waiting for the member from New Zealand First to stand up and say something about it. I think there should be a statement about the principles of the Treaty of Waitangi. If it is good enough for Te Arawa, then it should be good enough for everybody else, for goodness’ sake!

Pita Paraone: Similarly, if it’s good enough for this collective, it’s good enough for the rest of the country.

Hon TAU HENARE: Well, there you go! That is a good point. I had never thought of it that way, but now that you bring it up!

Colleagues on this side have commented about the tribunal and judicial review. There has to be some sort of mechanism whereby if something goes wrong right at the end, if the parties have followed through the process but have hit a brick wall, there is some sort of final adjudicator. [Interruption] I heard you on the radio, mate—Phil Heatley, the new member for Whangarei. Whether it is the tribunal or the judicial review process, there must be a process whereby somebody adjudicates legally. I think we can work on that. The Crown, the Government, and the collective have a responsibility to ensure that the process entered into is transparent. It does not matter what system one has or what resolution process one has; there will always be people who disagree, so, for them, one has to have a transparent process. I am with my colleagues on that point.

I will turn briefly to schedule 3, “Percentages for allocation of rental proceeds”. Ngāi Tūhoe will have 27.2987 percent. That is down to the last piece of timber! I am not so interested in the amount of allocation to each tribal district—Ngāti Manawa, Ngāti Tūwharetoa, and so on and so forth—but I am interested in the way that the percentages were arrived at, and maybe the Minister in the chair, the Hon Mita Ririnui, can shed some light on that aspect. It is interesting to note that if one were to read the percentages for the allocation of rental proceeds, then one would think that they were right down to the last little growth on the tree, or the last little piece of grass in Murupara.

That is all. I think that, all in all, the process is a fantastic attempt at taking out the argy-bargy, the legalese, that we have seen before, and I hope that the process grows into something that we may be able to use later on down the track.

CHRISTOPHER FINLAYSON (National) : I would really be grateful to receive the comments of the Minister in the chair, the Hon Mita Ririnui, on an issue. In my earlier contribution I dealt in detail with schedule 2 and particularly with the adjudication part, which is to be completed by 25 June 2011. I focused on clause 6(15) in schedule 2, which provides that a “decision of the adjudication panel will be final and binding on all the parties.” I said the authorities have suggested that the effect of that clause would not be to oust the jurisdiction of the court in judicial review. My personal view is that maybe it should do so.

But I come to clause 7 in Part 2 of the bill, which may provide us with some guidance. Clause 7(1) is the standard privative clause, and it is not dissimilar to section 6 of the Treaty of Waitangi Act 1975, as amended by section 40 of the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992. In fact, it is very similar, because section 40 provides: “… the Tribunal will not have jurisdiction to inquire or further inquire into, or make any finding or recommendation in respect of,— … Commercial fishing … The Deed of Settlement … or … Any enactment …”. In a 1996 case the Court of Appeal stated that the effect of that clause—the so-called privative clause—in section 6(7) of the Treaty of Waitangi Act was to oust the jurisdiction of the tribunal.

Then we come to clause 7(2) of this bill, which is an interesting clause. It states that “Subsection (1) does not exclude the jurisdiction of a court, tribunal, or other judicial body in respect of the interpretation or implementation of the deed of settlement or this Act.” So any question of the interpretation of the legislation, which would include the schedules, obviously, would be available in jurisdictional terms for a court or a tribunal to consider, as would any question of implementation.

It would seem on the face of it that the jurisdiction of the court is not ousted and that clause 6(15) of schedule 2 may not be the end of the road. I really think that we ought to be crystal clear about this, because I believe, based on my experience of the fisheries allocation saga, that there could well be litigation, although I agree with what my colleagues have said—that given the parties involved and the desire to reach a settlement, one would certainly hope that there would be a conclusion of the allocation debate, if there is to be a debate, by 25 June 2011. But the Minister’s contribution on the allocation model and on whether it is intended to be final and oust the jurisdiction of the courts is very important, because on the face of it I do not think it does that.

Hon MITA RIRINUI (Associate Minister in charge of Treaty of Waitangi Negotiations) : Kia ora, Mr Chairman. I will just respond to the questions that Chris Finlayson asked earlier in relation to the resolution process. I took my time in rising to respond to them because I thought that other speakers might also ask similar questions. I did note that after Chris Finlayson sat down, the contribution from the Hon Georgina te Heuheu was along similar lines, and she may have provided him with some answers to those particular concerns.

I think it is important that we understand that this resolution process was developed by the collective, and that clause 7(4) contemplates the possibility of litigation. I cannot give the member a guarantee that lawyers will not become involved, but it was certainly the view of the collective that due to their experience of lawyers, the role of lawyers should be minimised. Members should also understand that the decisions cannot be appealed, but a review of the process can be sought to ensure that the process itself is consistent with the tikanga-based process in schedule 2.

There were also queries about the proposed tikanga-based mana whenua resolution process that I just spoke about and also about the allocation model that was developed solely by the central North Island collective. As we heard from the submitters, by and large a large percentage of them had the opportunity to participate in the process of determining the model for allocation, and what we did find interesting when we came to the mana whenua concepts in terms of allocation, or in terms of rights, was that those concepts were defined as ahi kā roa, which translates as continuous, undisturbed; in other words, permanent occupation. I would think that every iwi involved in the central North Island collective would qualify on that particular principle.

But the collective also went to the extent of looking at other areas of mana whenua and other concepts. One that is new to me is ahi tahutahu, which basically means provisional, shared, looked after by somebody else. It also can mean temporary occupation. In other words, it suggests that a particular iwi may be transient, and may move around considerably. I do not know that any of those iwi that are mentioned in schedule of the bill are in that position. The last concept of ahi mātaotao, which I often hear about, is one of abandonment or lack of representation or underutilisation of land, or no utilisation of land at all. I could not imagine anywhere in the country where that particular concept may apply, although from time to time we do discover new iwi developing amongst the more known iwi, and these particular iwi become the centre of debate, whether or not they actually exist.

Those are issues that iwi themselves will deal with, and it is certainly not over to the Crown to determine whether a particular concept applies to particular iwi in a particular circumstance. I know I have just skimmed over many of the queries, but I found that although many of the speakers asked questions, by the time they resumed their seats they had actually answered the questions themselves.

TE URUROA FLAVELL (Māori Party—Waiariki) : I raise a point of order, Mr Chairperson. My point of order is along the lines of what the Hon Tau Henare was discussing this morning. It has come out of the discussion about the provision for debate of amendments to do with Treaty settlements. By way of providing some background—I am not sure whether you were in the Chair at the time, Mr Chairperson—let me take you through the issue.

My amendments last night sought to amend clause 11 of the Affiliate Te Arawa Iwi and Hapu Claims Settlement Bill. They were ruled out of order in accordance with Speakers’ ruling 110/2, which states: “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.” I ask that you as the Chair, or the Speaker’s office, or whoever deliberates on these issues, look at this particular issue, on the ground that the agreement that the Te Arawa bill gives effect to is not an agreement between the Crown and another party. The deed of settlement has been signed by the Government and another party, but the Government is not the Crown. Shall I carry on, Mr Chair? OK, I will carry on. The deed of settlement has been signed by the Government and another party, but the Government is not the Crown. The agreement becomes one between the Crown and another party only after Parliament has passed the legislation and the Order in Council has been signed by the Governor-General on behalf of the Sovereign. The point is one of, I think, fundamental constitutional importance: who and what is the Crown?

I emphasise that the Māori Party supports the legislation—this bill and the Te Arawa legislation—but we uphold the Treaty of Waitangi as the founding constitutional document of this nation, and we assert the value of the principles of the Treaty to regulate behaviour. It is incumbent on this Parliament to deal with matters involving tangata whenua in particular on the basis of Treaty principles—mutual respect, reasonable cooperation, and the utmost good faith. We are not advocating what are often termed in Parliament as frivolous, vexatious, or unreasonable amendments to legislation giving effect to agreements that have been reached between the Government and the Treaty partners. No, that is not it. Our question is one of a constitutional nature: what is the purpose of bringing this bill before Parliament, if it is true that the agreement has already been signed by the Crown? What is the purpose of seeking Royal assent to the Act, once the bill has been passed by Parliament? Where does sovereignty lie, if an agreement signed by a Minister of the Crown supersedes the authority of Parliament and the Executive Council?

As the Hon Tau Henare has talked about, we have called for submissions on Treaty settlement bills such as this one and the Te Arawa bill. The Māori Affairs Committee has listened to the submitters presenting reasoned and rational points of view. What is the point, if Parliament simply ignores what the people have to say because the deal is already basically done? It is a fundamental principle of Westminster democracy that Parliament is sovereign and regulates its own procedures through Speakers’ rulings, among other ways, and it has been that way since way back when—the Magna Carta of 1215. Established conventions separate the powers of the legislature—Parliament, that is—from the Government and the judiciary. Each guards its roles jealously. Parliament should not allow its powers to be constrained, or allow itself to be seen to be, in effect, just a rubber stamp for the executive.

Mr Chairperson, all that I ask, as a representative of the Māori Party, is that you give consideration to looking at this issue, to possibly giving a new ruling that might clarify it, and, more important perhaps, to having a debate in respect of what is fundamentally, from our perspective, a constitutional matter. I am sorry that I have taken quite a bit of time, but it was important to try to give you some background. I place the issue before Parliament at this point because we are in the Committee stage, there are a number of other speakers and provisions to come, and I want to take a call in respect of Part 2.

The CHAIRPERSON (H V Ross Robertson): Thank you, Mr Flavell. I would like, first of all, to refer to the Speakers’ ruling you mentioned—110/2. It is quite specific. It states: “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.” That ruling was made both in 2003 and in 2005. I understand that you were seeking to amend the names of the signatories, or the parties to the deed, and to take one group out. This Supplementary Order Paper contains amendments to the settlement agreement that have the agreement of the parties. Bills such as this are to give effect to the settlements; they are not to amend the agreements, unless both parties—the Crown and the signatories—agree. That is where the matter lies.

TE URUROA FLAVELL (Māori Party—Waiariki) : I raise a point of order, Mr Chairperson. I accept that that, on the face of it, is very much the case, and that was an explanation given by Dr Cullen. What we are talking about, however, is a bigger issue. Sure, the agreement has been done, but if you listened to the first part of the debate, you would have heard that it was very much about the notion of those agreements being between iwi and, under that particular wording, “the Crown”. The point I was trying to make was that the definition of “the Crown” within that is open to interpretation and is not clear.

The CHAIRPERSON (H V Ross Robertson): Can I suggest, Mr Flavell—it cannot be done now—that there is always the opportunity to make amendments to the Standing Orders. The Speaker on a number of occasions has invited parties to do that. Maybe that is something the member needs to look at in the future, but we cannot go back and do that now, because we already have Standing Orders and Speakers’ rulings that govern the proceedings of this House, and that is how it works.

CHRISTOPHER FINLAYSON (National) : I have only one other question that I want to raise about schedule 2, and I would be grateful for the guidance of the Minister in the chair, Mita Ririnui. My question concerns clause 13(e).

Clause 13 provides—I think, sensibly—that the adjudication panel will have complete discretion to determine the process and the timetable for the hearing. That complete discretion is subject to certain requirements, and they are more particularly set out in paragraphs (a) to (g). For example, paragraph (g) provides that a decision is to be reached by 25 June 2011. But I am interested in paragraph (e), which states: “there is a right to question witnesses;”. What I would like to know, and maybe we need clarification, is whether that right to question witnesses relates only to the adjudication panel, or whether an iwi claimant can also ask questions of another iwi claimant. If I were to proffer an opinion, I would say it means both: that the panel could ask questions, but that iwi claimants should also have the right to test evidence by way of cross-examination—by asking questions of witnesses for other iwi.

What we do not want, in the course of the adjudication panel hearing this matter, is to have some kind of eleventh hour application for judicial review. I know that these sorts of questions have been subject to judicial review in the context of commissions of inquiry. I seem to recall a case concerning someone called Badger, where the person presiding over the commission of inquiry was a former Attorney-General, Dr Martyn Finlay, and the case was held up for some time while the parties went to the courts.

That is my interpretation, but I would be very grateful if the Minister could give some guidance. Does the right relate to the panel alone asking questions, or is there also the right of iwi claimants to ask questions and to test the written evidence that will have been filed by another iwi claimant?

Hon MITA RIRINUI (Associate Minister in charge of Treaty of Waitangi Negotiations) : I say to the member Chris Finlayson, yes, iwi claimants can ask questions as well.

TE URUROA FLAVELL (Māori Party—Waiariki) : Tēnā koe, Mr Chairman. There are just two issues that I want to raise. I agree very much with a number of the sentiments that have already been raised by other members that it is appropriate that iwi deal with internal issues themselves, and I touched on that point in the second reading. I am pleased about the approach of internal conflict resolution; I think it is a good idea.

The two points that I want to raise in particular are in respect of the notion of mana whenua, and they have been highlighted by way of two groupings in particular. One is to do with Ngāti Whāoa, under the mantle of the Te Arawa affiliates, and the other one is best exemplified by the Ngāti Manawa example.

The first issue, in respect of Te Rūnanga o Ngāti Whāoa, is in two parts. One is the point that Ngāti Whāoa’s claim has been included, and we have touched on that in debate on previous bills. How is it that a person, in a sense, puts forward a claim on behalf of others, then finds that, in the process of settlements, the claim has been put to be settled, yet there has been no formal notification, there has been no consultation, and, basically, the claim is taken out of that person’s hands and put smack dead in the middle of this particular bill? I refer in particular to the claim led by Mr Peter Staite. That is the first issue.

The second issue is in respect of this whole question of mandate. I know we did broach some of it in the debate on the Te Arawa affiliates bill, but it is an important issue, in this case in particular. According to what I have heard, at least, Ngāti Whāoa might be relatively small in numbers but, from their perspective, they believe that they have not insignificant interests. We know, firstly, that their interests have been included in the settlement under the Te Arawa affiliate bill, and that they have tried to get out of it in one form or another. I attempted to basically pull them out of the settlement last night, but my attempt was ruled out of order. They have tried to get out of it in a number of venues. There have been three Waitangi Tribunal reports. The Waitangi Tribunal, through Judge Carrie Wainwright, pulled the parties together and attempted to facilitate a process. It did not happen. I am told that the group they have a grievance with did not want to continue the facilitation process, so that was basically the end of the story. On top of that, they have been to the Office of the Ombudsmen.

In terms of this particular bill, the question is to raise issues about Ngāti Whāoa’s interest in all of this. The Minister in the chair, Mita Ririnui, talked about mana whenua, and I suppose the question is that their mana whenua interests have basically now been pulled into the big Te Arawa affiliate collective. My role as an MP is to represent their interests, and all I can do is put on the record that, from their perspective at least, their tamariki may well be back here at some point in time to reflect on this whole matter. Although we might say that those are internal issues, when the two parties do not want to come together or do not come together, then of course the matter will not move forward. As I said in the second reading, I would like the approach to be rangatira ki te rangatira, with facilitators to move the discussion along.

The second issue, which other speakers have taken up, concerns the divvy-up of the resources. I accept that the divvy-up of the resources is an internal issue, and, from what I understand of the collective, one representative from each of the iwi is sitting at the table and they make the decisions. It is a great approach for iwi to be empowered to make decisions about their own futures; that is fine. All we can conclude is that, in particular, around the rentals and the divvy-up of the land later on, on the face of it iwi have driven it, but the key thing is that some of the submitters told us that they had certain concerns about the divvy-up. It is not for me to say yay or nay, or which is the best way. As I say, I support the notion of iwi doing their own thing. But we have to wonder.

I will choose Ngāti Manawa as an example because of their large number of submitters at the Māori Affairs Committee hearing. They say that they have far and away more than 6 percent of mana whenua interests. Some might say that, in comparison with the other iwi, they are a small player in numbers, but, nevertheless, in terms of their land interests they are very significant in the bigger picture. The concerns that were expressed by some of Ngāti Manawa—certainly not all—were about the weighting, and the allocation of the rentals. That was a key issue, and I would not mind if the Minister could elaborate on it. I know that that question was put by the Hon Tau Henare. The second issue was the weighting of ahi mātaotao, ahi tahutahu, and so on, and how they might play out. It might be said that that is an iwi issue. Sure, but, again, some of the submitters at the select committee suggested that they might lose their interest, because the bigger blocks might gang up on them. And we can understand that, because this settlement is probably the most significant settlement that they will ever see in their lives.

It is about simply trying to get to grips with understanding the issues, if the Minister is able to provide an explanation. The decisions might have been made behind closed doors. If it is all about those iwi making decisions for themselves, then, in the end, I suppose their representatives have to stand and fall on those decisions made at the table. All I am doing is representing the interests of those who have made representations to me to seek some clarification. I suppose, in the end, they are simply protecting their interests—making sure their interests are looked after. I am talking for some of Ngāti Manawa—certainly not the rūnanga, because it is in there. Some of the submitters presented the case that they are quite significant in mana whenua issues, yet they get a very small piece of the cake in terms of the rentals. They do not even know what their percentage of the bigger picture is, and they have some time ahead of them to debate whether they will get their fair share of mana whenua. They ask “What is the story? How do we protect our interests?”.

All I am doing is raising those issues, and perhaps the Minister might be able to respond, so that it will be on the record and I can tell some people back home. Kia ora.

• The question was put that the amendments set out on Supplementary Order Paper 230 in the name of the Hon Dr Michael Cullen to Part 2 be agreed to.

• Amendments agreed to.

• Part 2 as amended agreed to.

SIMON POWER (National—Rangitikei) : I raise a point of order, Mr Chairperson. It is not for me to give an indication as to what the Government is doing, and I see that we have a senior Minister in the Chamber who might be able to help us, but we have the Labour whip calling one vote and the Minister in the chair, the Hon Mita Ririnui, calling for a party vote on the opposite position. That just cannot be right. We need some clarification about what is happening here.

The CHAIRPERSON (H V Ross Robertson): All right. Let us get some clarification from the Minister, please. OK. I want to get this right; this is the question that schedule 2 stand part. I understand that schedule 2 has to be lost because there is a new schedule 2, which will be put after this one. Are we clear now? This one, as I understand it, should be lost, but there is an additional vote for a new schedule 2, as set out on Supplementary Order Paper 230, and that is the one to be agreed to. So this one will be lost. Let me put it now, so that we are all clear. All those in favour of schedule 2 standing part say “Aye”—

SIMON POWER (National—Rangitikei) : I raise a point of order, Mr Chairperson. I am sorry. I do not mean to be difficult, but it is an extraordinary situation when the Chairperson of the Committee of the whole House is saying, before we have a vote, that the vote is meant to be lost.

The CHAIRPERSON (H V Ross Robertson): I understand.

SIMON POWER: I think that, in fairness to the Committee, we should have the vote, and then, if indeed there is an issue, someone can seek leave to amend it. It is most odd for you as Chair to be saying how a vote should go before you put the question.

The CHAIRPERSON (H V Ross Robertson): Thank you, Mr Power, and I concur with what you were saying. I was trying to provide some leadership in the situation.

• Schedule 2 not agreed to.

The CHAIRPERSON (H V Ross Robertson): I call the Hon Georgina te Heuheu. I might add, for the member’s benefit, that clauses 1 and 2 are taken together, but there will be separate votes. So the member can debate clause 1 and 2, but there are separate votes.

Hon GEORGINA TE HEUHEU (National) : I will take a very short call. We do not want to be seen to be dragging out something that we are all in support of, and that is obvious, but the title, the Central North Island Forests Land Collective Settlement Bill, is very important. It is a very proper title, obviously. But if one reads the title only, without knowing the substance of the bill, then one may not necessarily get the significance of what is being achieved here. It certainly is a collective, which is one that I do not think we have seen before; a number of iwi have come together in terms of the commercial side of interests that have their genesis some 20-odd years ago in the Crown Forests Assets Act 1989.

The bill makes provision for the allocation of land under the Crown forests, but the individual claims of the iwi involved are still to be completed. It is a unique initiative and one that, hopefully, will be repeated, if, in fact, it all appears that it is able to work the way it is obviously intended to work here. So it may be that we will see more region-wide settlements where we have collectives involved as well. This is the first one. It is unique. We support it. We would like to see it happen again.

My colleague Pita Paraone might suggest—[Interruption]—oh, OK. I will not say anything about the north then. But I was just hoping we might see that where there are similar iwi interests in a particular region, there may be room for similar legislation, so we might see this term in use again as we go forward. So it is pretty simple. I want to support clauses 1 and 2. Thank you, Mr Chair.

PITA PARAONE (NZ First) : Tēnā koe, Mr Chair. I want to take a short call on clause 1, which is the title. First of all, I say that I support a lot of the sentiments of the previous speaker, the Hon Georgina te Heuheu. You know, we talk about the use of te reo Māori, and I wonder whether any consideration was given by the principals of each of the iwi groupings that came to the negotiating table to the opportunity of giving this particular bill a Māori name. I see that my colleague from the Māori Party is grinning—I do not know whether it is a grin of derision or a grin of support. In terms of promoting the use of te reo, I would have thought that this might be an opportunity to give the bill a Māori title.

I am very mindful of the fact that the spokesperson for Ngāti Manawa was very emphatic about what Ngāti Manawa meant in relation to his tribe. Of course, I can appreciate what he said. But I think that we will see similar titles in terms of collectives and affiliates, and I suppose this title does provide a blueprint for titles of similar settlement bills. There is an opportunity for both the Crown and negotiators to consider Māori titles for our legislation. During my first term in this House I can recall making references to the opportunity of giving bills Māori titles. If it is OK for the House to provide committee reports back to the House in te reo Māori, then I think that at some time in the near future we should be seeing bills that pass into law being written in te reo Māori.

New Zealand First does not have any concerns about the title of this bill or its commencement date. Kia ora.

• Clause 1 agreed to.

• Clause 2 not agreed to.