Rt Hon WINSTON PETERS (Leader—NZ First)
: I move,
That the Principles of the Treaty of Waitangi Deletion Bill be now read a first time. At the appropriate time I will seek leave for this bill to be sent to the Justice and Electoral Committee for consideration.
This Parliament should do New Zealanders an invaluable service today. When considering these so-called principles, we must start from the premise that Parliament created this historical anomaly, so it is Parliament that must correct it. We must also ensure that it is clear that this is not an attack on the treaty itself, but on the insertion of the term “the principles of the Treaty” into legislation.
I say at the outset that if members are intending to vote against this bill, then they should please use their speech to tell the House and all New Zealanders what the definition of the so-called principles of the treaty is. If they cannot do this, then logic dictates that they must support this bill. They have no other choice.
This bill seeks to do three fundamental things. First, as the bill’s title implies, it seeks to remove all references to the undefined and divisive term “the principles of the Treaty of Waitangi” from legislation. Second, it seeks to reverse the insidious culture of division that has grown up around the existence of these principles. It has seen Māori pitted against Māori and non-Māori, seen family members pitted against each other, and gone right to the heart of our social fabric. Finally, the bill aims to put an end to the expensive and never-ending litigious programme that has sprung up around these principles. This programme has diverted hundreds of millions of dollars into dead-end paths and away from the enlightened programmes that are the true pathway to success.
How did these principles appear in legislation? It was Geoffrey Palmer who inserted them into the State-Owned Enterprises Act in 1986. It was one of the many failed experiments of the fourth Labour Government. Māori did not ask for them—nobody did—but inserted they were. One might point out the irony of Geoffrey Palmer inserting them into legislation only to have his son, Professor Matthew Palmer, the dean of Victoria University’s law school, question the very validity of their existence and their value in law.
What made the inclusion of these terms in legislation worse was that they were never ever defined by Parliament. I have asked countless questions over the past 18 years, as have my colleagues, inside this House and outside, seeking an adequate definition of these principles, yet none has ever been forthcoming. I have gone to academics and other legal experts, and still I get the same reply. There is no clear definition, only widely diverse interpretations of what the principles might mean in certain circumstances. The simple answer is that they have not been defined because they cannot be.
The lack of definition has created legal chaos as activist judges, bureaucratic meddlers, and treaty lawyers have taken advantage of this void. It is no coincidence that almost immediately after these terms were placed in legislation, a protracted and expensive process of litigation was begun. It has never let up; it has grown exponentially to the ludicrous situation we have today of outrageous claims to everything from air space through to oil and gas. It has created false hope and expectations that have left far too many Māori craving a fool’s paradise that can never really be a reality.
Not only have these principles created a legal nonsense, their divisive nature has now permeated the entire bureaucracy. We now have treaty specialists in every Government department and requirements for every health board, school, or Government agency to adhere to these undefined principles. The result has been an endless stream of ad hoc programmes and policies at a cost of millions and millions of taxpayer dollars, with no productive merit.
One should ask any Māori or non-Māori what is more valuable—a course on treaty principles, or a good job, solid education, and decent housing and health-care. The latter will win out every time, yet this Government insists on imposing these principles upon New Zealanders. We are meant to feel guilty if we do not sign up to the Government’s politically correct programme. Well, New Zealanders of all ilk are sick and tired of that, and it is time this Government woke up to that. This Government even tried to insert the principles into free-trade agreements to make them binding on foreign countries. That is madness.
These principles have also muddied the waters over legitimate claims of land alienation that do not need these so-called principles to be valid. The removal of these terms will have absolutely no impact on genuine claims. In fact, it will lead to their being better resolved more quickly—even faster as the growing body of bogus claims is removed from the system, unlocking time and resources for legitimate claims.
The Treaty of Waitangi was a noble historical document aimed at forging a relationship between two diverse peoples, and, as the rate of intermarriage between Māori and non-Māori seems to indicate, it was actually pretty successful. This nation is not perfect, but it does need a united, cohesive future. Although we have seen protests, we have never witnessed the race riots that other nations have. I believe that that is because the relationships forged between all of those who have come to these shores have historically almost always been based on a commitment to fairness and equality before the law. It was not always universally applied, but I believe that it has always been a part of our underlying values and culture.
That was undermined by inserting these principles into legislation. The unwarranted insertion of treaty principles into legislation has created division where none need exist. They have created resentment where it is not necessary. The words of the treaty, as with every other treaty worldwide, speak for themselves. The way forward for Māori, just as it is for non-Māori, must be based on strong education standards, First World health, housing, and social standards, real employment prospects, and First World incomes. Those cannot be found in fabled principles. It is time for the failed experiment to end and for this Parliament to act in the interests of all New Zealanders.
I ask my colleagues in this House why they would deny this bill a select committee hearing, where amendments can be made after the public has been heard. I say again that if members intend to vote against this bill, then they should please now tell this House and the public what the principles are. If they cannot do this, then they should help to remove this festering sore from our statute book and support this bill. If they cannot define these principles, then they should support this bill. If they cannot enunciate them or find words that have genuine meaning to describe them, then they should support this bill. If their minds and hearts cannot tell them what these principles are, or if all their friends, all academia, the whole judiciary, all the experts, their Cabinet colleagues, and their former leaders cannot tell them what these principles are, then they should support this bill.
In Australia today there are tens and tens of thousands of Māori. The average income of those Māori is greater than that of the average European in this country, yet Australia does not have a treaty, so how can it be? Maybe it is because the fundamental things that all families, communities, and societies need, such as decent health, decent education, decent housing, and decent First World wages and prospects, are what we all need. In abandoning that purpose and cause, this country has lost a lot. I say again that if members cannot tell me, their colleagues, and the public what they are pursuing in respect of the principles of the Treaty of Waitangi, then they should please support this bill. It will change nothing; it will advantage much. We cannot progress when the way forward is hazy. Let us today lift the fog that has shackled this nation for far too long, and support this bill.
The last thing I want to say is that as I have grown up to adulthood, I have seen so many of my Māori colleagues spend their whole lifetime on this issue. They are growing old and tired, and now, in many ways, they are of no use professionally to anybody. They have wasted 30 or 40 years on this issue. What a pity they could not have spent their life and energy uplifting their people in the way the great Māori leadership of the 1920s did, and transformed and changed this nation.
Hon MITA RIRINUI (Associate Minister in charge of Treaty of Waitangi Negotiations)
: It has been widely accepted over the last decade in this country that the Treaty of Waitangi is a founding document of Aotearoa. It is an exchange of guarantees between two sovereign peoples, giving rise to obligations on both parties. Māori ceded to the Crown the power to govern New Zealand, and in exchange the Crown guaranteed to protect their identity, including their rights to their lands and other possessions. The Crown also guaranteed to Māori the same rights and privileges as British citizens.
The treaty is an important part of the foundation upon which government was established in Aotearoa. Like all treaties, it gives rise to duties on the Crown—duties that, as a matter of conscience, the Crown should comply with. This is often referred to as the honour of the Crown. Governments have therefore chosen, on a case by case basis, to give force to the treaty by an Act of Parliament, doing what is appropriate in each case, according to the circumstances. That has sometimes meant incorporating a reference to take into account the principles of the treaty and the application of the Act. This considered approach is most ably demonstrated in the Local Government Act 2002. Section 4 of that Act specifically notes that it is the Crown’s responsibility, rather than that of local government, to take into account the principles of the Treaty of Waitangi.
Hon Members: What are they?
Hon MITA RIRINUI: Patience, gentlemen; I will come to them. Treaty principles are the way in which the Government sets out what the treaty means for the Crown. It is not appropriate to put such references in all legislation; nor is it appropriate to remove them from all legislation. To do so would signal the Crown’s walking away from its duties and obligations. So what are these principles? The member for Tauranga has been, should I say, promoting the removal of these principles for many, many years. However, I find it highly unlikely that he is not aware of what the principles of the treaty actually are, given that he was the Deputy Prime Minister in 1996 and had ample opportunity to play his cards. As the member well knows, in the 1987 lands case the Court of Appeal elaborated the principles of the treaty as required by section 9 of the State Owned Enterprises Act. In that judgment, the President of the Court of Appeal, Sir Robin Cooke, wrote the principles of partnership, active protection, and redress.
In 1989 the fourth Labour Government, drawing on the principles that had been developed to date, including past judgments from the courts, published a set of five principles to assist the Government when making decisions about matters related to the treaty. In April 2002 the then Attorney-General, the Hon Margaret Wilson, advised Parliament that these are the principles that the Government considers to be relevant. The first principle is the principle of Government, meaning that the Government has the right to govern and make laws. The principle of self-management means that iwi have the right to organise as iwi under the law and to control the resources they own. The principle of equality means that all New Zealanders are equal under the law. The principle of reasonable cooperation means that both the Government and iwi are obliged to accord each other reasonable cooperation on major issues of common concern. Finally, the principle of redress means that the Government is responsible for providing effective processes for the resolution of grievances, in the expectation that reconciliation can occur. The treaty principle of redress is obviously relevant to my portfolio as Associate Minister in charge of Treaty of Waitangi Negotiations and the work of the Office of Treaty Settlements.
In July 2000 the Government published the principles that it felt should guide the treaty settlement work. They are good faith, restoration of relationship, just redress, fairness between claims, and transparency in Government-negotiated settlements. For those members who wish to be informed on this area of New Zealand’s constitution, I recommend to the House and to those members that they refer to the publication by Te Puni Kōkiri called
He Tirohanga ō Kawa ki te Tiriti o Waitangi. It is an excellent summary of the history of the treaty and its legal place in New Zealand’s society. Members need look no further to gain this understanding. On the question of legislative reference to the principles of the treaty, the publication states: “The differences in the Māori and English texts of the Treaty of Waitangi have led to different understandings of the meaning of the Treaty. These differences, coupled with the need to apply the Treaty in contemporary circumstances, led Parliament to refer to the principles of the Treaty in legislation, rather than to the Treaty text.”—as the member expects the Government to do. It is the principles, therefore, that the courts have considered when interpreting in legislation references to the treaty. As Justice McKay noted in the broadcasting case in 1992, it is the principles of the treaty that are to be applied, not the liberal words. The English and Māori texts in the first schedule of the Treaty of Waitangi Act 1975 are not translations, one of the other. The differences between the texts, and the shades of meaning, are less important than the spirit.
The Government is committed to working through the challenges of the treaty settlement process in an honourable manner, and to reaching fair settlement with due regard to the treaty, and the principles of the treaty, which I have once again explained. I find the ideas expressed in the bill, that the Crown should simply walk away from its duties under the Treaty of Waitangi, by deleting references in legislation to the principles of the treaty, both deliberately ignorant and morally repugnant. I think it has become quite clear during my speech that the Government will be opposing the first reading of this bill. I am astounded that this bill has come to the House. I think of the treaty settlements over the last decade, and I think back more than a decade, perhaps one and a half decades, to the Treaty of Waitangi (Fisheries Claims) Settlement Act of 1992. Although it may have taken a very long time before a number of iwi received the benefits from those settlements, iwi—which many members on the other side of the House belong to—have had their fair share of settlement. That settlement was based on the Crown’s acknowledgment that it had breached the principles of the Treaty of Waitangi, and it highlighted those principles. [Interruption] Of course it is difficult for those members on the other side of the House to accept that that is exactly the case. Once again I say that the Government will not be supporting the first reading of this bill.
GERRY BROWNLEE (Deputy Leader—National)
: I raise a point of order, Mr Speaker. The Government does not have a very sound Order Paper in front of us tonight. This is the only bill that we are going to consider between now and 10 o’clock, yet somehow the Government, embarrassed by this bill, wants to constrain us—
The ASSISTANT SPEAKER (H V Ross Robertson): That is not a point of order.
GERRY BROWNLEE: Give me a moment, please.
The ASSISTANT SPEAKER (H V Ross Robertson): The member will be terse and to the point.
GERRY BROWNLEE: The Government wants to constrain our speaking. So I seek leave for the National Party to have a 10-minute speaking slot, or to take us up to 6 o’clock on this particular slot.
The ASSISTANT SPEAKER (H V Ross Robertson): The House is the master of its own destiny. Is there any objection to that course of action? There is.
GERRY BROWNLEE: Let me make it clear: this will be the last speaking slot before 6 o’clock.
The ASSISTANT SPEAKER (H V Ross Robertson): Just before I call the member, I advise members that all other speeches are 5-minute speeches, and as a courtesy to members I will give a bell at 4 minutes so they know they have a minute left.
GERRY BROWNLEE (Deputy Leader—National)
: I raise a point of order, Mr Speaker. Can you explain how it is that we get only a 5-minute slot.
The ASSISTANT SPEAKER (H V Ross Robertson): We are dealing with members’ bills, and those members who move the motion and have the first right of reply, always have 10 minutes, and all other members have 5. That is the order of the list I have in front of me.
GERRY BROWNLEE (Deputy Leader—National)
: I raise a point of order, Mr Speaker. Why did the last speaker get 10 minutes?
The ASSISTANT SPEAKER (H V Ross Robertson): He had the right of reply, as it is a member’s bill. That is my understanding.
JOHN TAMIHERE (Labour—Tamaki Makaurau)
: I raise a point of order, Mr Speaker. I have two submissions. First, the shadow Leader of the House rose and asked for leave of the House to make a 10-minute speech. That leave was declined by the House. He then stood and raised a further point of order and threatened you, as Speaker, by stating quite clearly that he would make sure that his speech would go through to 6 o’clock. He has just raised three frivolous and vexatious points of order to ensure that that threat is carried out. I am asking you as the Speaker to ensure that you give him the 5 minutes, and put us out of our misery before dinner.
The ASSISTANT SPEAKER (H V Ross Robertson): That is not a point of order. I thank the honourable member, and can I just say that I did not feel intimidated or threatened at all.
Rt Hon WINSTON PETERS (Leader—NZ First)
: I raise a point of order, Mr Speaker. The reality is that we have just had a member from the Labour Party get up and talk about the principles of the Treaty of Waitangi, but he failed to define them. One of them, he said, was, I think, reciprocity. Was that—
The ASSISTANT SPEAKER (H V Ross Robertson): What is the point of order? [Interruption]
Rt Hon WINSTON PETERS: Mr Tamihere will have to listen very carefully, because this will be somewhat complicated for him. The reality is that the member talked about fairness, as well. Surely, the fair thing to do is to allow those who say that they have never heard the principles explained, put their case in the same time that was given to someone who said he could explain it but spent the whole 10 minutes not explaining it. Surely, that would be fair, that would be balanced, and that is what we should apply in this debate. I seek leave for Mr Brownlee to be given 10 minutes to state his case. After all, National members went to Ōrewa and stole my policy.
The ASSISTANT SPEAKER (H V Ross Robertson): The member has made his point. Is there any objection to that course of action being taken? There is. [Interruption] No, I am going to rule, and I remind members that this is a sessional order that was passed on 17 September 2002: the first two speeches will be of 10 minutes and the remaining eight will be of 5 minutes, with the member in reply getting 5 minutes. I now call the honourable member Gerry Brownlee.
GERRY BROWNLEE (Deputy Leader—National)
: We know that the Government is in severe trouble on a bill like this when it puts up a speaker like Mita Ririnui, who has no idea what the bill is all about, and then when he comes under a bit of attack, who does the Government wheel in but John Tamihere to try to bail him out. Well, let me make it very clear: the National Party will be supporting this bill’s referral to the select committee. We accept that the vagaries of the members’ ballot system mean that the bill is in the name of the Rt Hon Winston Peters, but, none the less, we will give it support because it is core National Party policy.
I want to ask the Labour Party where the Minister for race relations is. Where is Trevor Mallard? Why is he not taking a call in this debate? Last year when the Government found itself hopelessly on the ropes over this very issue, the Hon Trevor Mallard was appointed Coordinating Minister, Race Relations and he went out and said that references to the Treaty of Waitangi will be removed from laws if they were not needed and not appropriate. He told the
that inconsistent and incoherent references to the Treaty of Waitangi in legislation would be tidied up. He was super-tough, and those comments appeared under the headline: “ ‘There will be drama and tears’ says Mallard”. Well, the only drama we have seen here today is the Government on its bike backpedalling so hard, it is embarrassing.
I think it would have been very easy for Mita Ririnui to say what the principles of the Treaty of Waitangi are, but he could not. He gave us a smorgasbord of ideas about what those principles were. I think he mentioned eight points that might have been related to the principles. I tell Mr Mita Ririnui that he should not confuse the settlement process with the issue of treaty principles being pushed irresponsibly into law. Every single treaty settlement is done because those who settle understand that the Treaty of Waitangi granted as many rights to Māori New Zealanders as it granted to anybody else—as many rights to non-Māori New Zealanders as it granted to Māori. That is why we have a settlement process—because there is grievance, there was bad dealing, and there are matters to be settled. But that does not mean that we have to include in all legislation a reference to the treaty and to the principles of the treaty. It is littered throughout our legislation. It can be found in over 37 pieces of legislation. But it does not stop there. Government departments—well-meaning people that they are—require all of those they employ to have various understandings of the Treaty of Waitangi. For example, a customs officer—
Rt Hon Winston Peters: I raise a point of order, Mr Speaker. I apologise to Mr Brownlee, but some of my colleagues have asked me to do this. They have said they are so impressed with hearing our words read back to us that they would like an extension of time on the part of Mr Brownlee representing the National Party. We do appreciate the way he has been articulating our views so well.
The ASSISTANT SPEAKER (H V Ross Robertson): No, the member—
Rt Hon Winston Peters: I seek leave for an extension of time from now.
The ASSISTANT SPEAKER (H V Ross Robertson): No, the member cannot seek leave on behalf of someone else. He is a longstanding member and well knows that. It was a frivolous interjection.
Lindsay Tisch: I raise a point of order, Mr Speaker. The member from Labour, Rita Ririnui, fine fellow that he is, has been interjecting and referring to my colleague Gerry Brownlee, who is the shadow Leader of the House, by his first name, “Gerry”. We all know that he is Gerry, but under the Standing Orders the member should be referred to by his proper name. I say to Mr Ririnui that I know the members are friends, but there is a convention in the House and a Standing Order that says members must refer to other members by their full names, and I ask you, Mr Assistant Speaker, to enforce that Standing Order.
The ASSISTANT SPEAKER (H V Ross Robertson): I thank the honourable member for his contribution and just tell him that under Speakers’ rulings 26/7 and 26/8 it is correct that members should be referred to by their full names, titles, or portfolios. However, the member was not actually speaking and there was an interjection across the House, which I did not hear.
GERRY BROWNLEE: Thank you, Mr Assistant Speaker. I take no offence at the interjection made by the Rt Hon Winston Peters. I see it simply as a coalition overture. Littered throughout today’s newspapers there are job advertisements for positions in the public service.
- Sitting suspended from 6 p.m. to 7.30 p.m.
GERRY BROWNLEE: I take the opportunity to repeat again that the National Party supports this bill because it is part of our core policy to, wherever possible, remove the principles of the Treaty of Waitangi from legislation where that statement has little effect. That should not be confused with the issue of settlement, because treaty settlements are made on the basis that the Treaty of Waitangi guaranteed as many rights to any one New Zealander as it did to any other.
I ask Labour members tonight why they are not voting for this bill. In the early part of last year, the Prime Minister appointed the Hon Trevor Mallard as Coordinating Minister, Race Relations and said that he would be looking at legislation and removing, where necessary, such references from law where they were not needed and not appropriate. The Minister has been on the job for 18 months. He has done nothing. Here is an opportunity to have legislation that does the job. It may not be perfect, but a select committee can make a difference to it. If those Labour members really think that the Prime Minister was sincere in that pledge to New Zealanders, how on earth can they fail to vote for this bill tonight?
NANAIA MAHUTA (Labour—Tainui)
: Most people listening to the debate tonight know that election time is here and that opportunity knocks on Parliament’s doors tonight. This bill is nothing more than an election platform for two likely coalition buddies that just cannot bring themselves to an agreement before the election—that might not look so good, and people might remember what happened the last time they shacked up. Or is it really about New Zealand First taking up territory once held by National and becoming the real Opposition?
Labour does not support this bill. Labour knows that this is an electioneering stunt aimed to scratch the edges of our communities. It will not bring people together but will polarise New Zealanders. It is wedge politics, and we will have none of it.
When the fourth Labour Government set out the principles in 1989, they were not intended, in and of themselves, to be incorporated into legislation. That is as true today as it was then. Instead, the principles act as a guide to the Government in order to give practical expression to what was meant when the treaty was signed, and, more important, to what it could mean in very practical ways today.
Each generation has debated and argued the virtues and pitfalls of the treaty. Ironically, some of the strongest opponents, many of whom are Māori, are now the people who are most seeking a place in this very House. I wonder why. But let me say this. Labour does not intend to signal to Māori that we are walking away from commitments to better engage and uphold the principles of the treaty. We know that when the going gets tough, the tough get going. A strong programme of action has been jettisoned by this Government and has at times required legislative references to the principles of the Treaty of Waitangi.
Let us take section 4 of the Conservation Act 1987, for example, which gives effect to the principles of the Treaty of Waitangi. It gives real opportunities for Māori and the Department of Conservation to work together. “Co-management” is not a dirty word; that thinking has been steered by the very principle of self-management. New Zealand First knows that. National wants to get rid of it, supported by New Zealand First. Who will tell Ngāti Wai?
Let us take section 181(b) of the Education Act 1989, which states that the council of an institution must acknowledge the principles of the treaty. For Waikato University, for example, that led to the establishment of Te Roopu Manukura and a direct relationship with all iwi within the catchment of that university in order to advise and cooperate on matters of common interest, such as Māori enrolments. I think that that upholds the principle of equality and decision making.
Members should consider the principle of equality for one moment, and the various ways in which the Government has tackled areas of inequality in employment, health, and housing. Policy initiatives from this Labour-led Government target areas where there is real need, in order to make sure that everybody gets a hand up, not a handout. Targeted employment initiatives, population-based health funding, and income-related rents better restore equality into our society for all New Zealanders—Māori and Pākehā alike—according to their needs. And New Zealand First and National want to do away with the principles of the treaty.
Let us take, for example, the treaty settlements listed in this bill that include references to the treaty that help to uphold the principle of Government, self-management, reasonable cooperation, and redress. How do New Zealand First and National intend to tell the people of Ngāi Tahu, Tūrangitukua, Ngāti Tama, Pouakani, and Te Uri o Hau? Will they say: “Sorry, we’re just going to remove the references to the principles of the treaty, and too bad, we’re not sure what it means for your treaty settlements.”? New Zealand First want to get rid of the principles, and so does National. Labour will not have a bar of it.
Finally, let us take the Māori Television Service. In upholding the principle of self-management, a Labour Government has recognised that language, culture, and communication are important. Under a Labour Government Parliament legislated to protect the Māori language, and we stand by that commitment. We are making sure that the language is broadcast on television. New Zealand First members should tell their families when they go home that they think the principles of the treaty should be removed and what that will mean for Māori television. Who knows what that will mean, and who cares. That is what New Zealand First thinks, not Labour.
Labour opposes this bill. Many Māori out there know that incremental achievements made in this country have been pegged down by legislative references to principles of the Treaty of Waitangi. Long should that continue under a Labour-led Government. Labour objects to this electioneering stunt, and we oppose the bill.
STEPHEN FRANKS (ACT)
: I am very glad to rise for the ACT party and announce that we will be voting for this bill, which will be no surprise. This bill, of course, is the signal of the end of an era. This bill is the end of the treaty era. This bill, together with Peter Dunne’s bill to change the name of the Treaty of Waitangi, says an awful lot more than just getting rid of the spurious principles. The reason why we make the same arguments about the principles and about why the name Treaty of Waitangi no longer has any magic is that the treaty era is finished. It might take a few years before the last sorry dregs disappear, but the era is over when this Parliament is now being reported as actively debating what New Zealanders have been speaking about for 20 years in the pub, in their living rooms, and over dinner, while the politicians, in a cosy consensus between National and Labour, pretended that it was not happening.
That cosy consensus, of course, included New Zealand First. When Derek Quigley introduced his bill in 1998 to put a time limit on claims, every party in this House howled “racist” at him. Now it is official policy. One of the amusing things about Mr Peters’ bill, and it needs an awful lot of work in a select committee, but we will look forward to that task, would be to read through the list of enactments from which he needs to repeal sections that refer to the so-called treaty principles. Nearly all of those more recent bills are bills that New Zealand First has voted for. Only one party in the House has not voted for them, and we have been consistent in our principles—that is, that there is no such thing as a treaty principle. We have voted against almost every one of the recent bills that Mr Peters has now listed for revocation, including some enacted as recently as this Parliament.
Just a month ago New Zealand First voted for a bill that contained references to the treaty principles. New Zealand First had its own arguments for doing that, and they were not bad arguments. But if New Zealand First were really standing for principle its message would have been very straightforward: “We don’t believe in these principles.” New Zealand First should have said: “We don’t believe in them, any more than we believe in this fanciful partnership.” Sadly, the bill introduced by Mr Peters does not do anything about this mythical partnership created by the courts. I pity the judges who were forced to create something out of the deliberately fuzzy and meaningless words that Parliament inserted, as a compromise between David Lange and Tainui at the time of the Coalcorp case. The judges had to do something so they created this nonsense partnership. They talked about the living document; the spirit of the treaty. They invented fanciful principles of good faith between partners, as if we were in a partnership between the leaders of a white race and the leaders of a brown race.New Zealand left that scenario in 1840. Now, he iwi tahi tātou—now, we are one people. At the Kohimārama conference only 20 years later that sentiment was repeated by the chiefs—one people. For 30 years in this House politicians from the two major parties have been deliberately creating political capital out of fostering the idea that there was a future for us in pretending that we could discern race difference.
This is a very significant bill. It is hopelessly badly drafted. It repeals whole chunks of sections. It does not even say what a provision is. A provision that contains a reference to treaty principles is being repealed, instead of trying to be replaced with something more meaningful, so we would see whole regulations just disappear. This bill is a political statement. ACT will be looking forward to turning it into good law in select committee.
NANDOR TANCZOS (Green)
: The Green Party will vote against this bill, not because we support the redefinition of treaty rights by reference to the principles of the Treaty of Waitangi. We do not support that, and we have taken a principled position to uphold Te Tiriti o Waitangi—the Māori language version. If this bill had sought to address that problem, and if it had simply removed the term “principles”, we might have voted for it. But the Rt Hon Winston Peters is being tricky. He says that this bill is not an attack on the treaty itself, and then he proceeds to attack anything that would implement the treaty. He speaks of going back to the treaty itself but, to the best of my knowledge, he has shown neither comprehension of what it states nor support for its recognition. When I have mentioned te tiriti in this House, the Rt Hon Winston Peters has asked: “What’s that?”, so I recommend that the member undertake some of the treaty education that he is so quick to denounce.
The Green Party agrees that we should go back to the treaty itself. That is why we did not support raupatu last year, as New Zealand First did, over the foreshore and seabed issue. Let me say, for Mr Peters’ sake and for Mr Perry’s sake, that being Pākehā does not exclude me from participating in this debate. Tangata whenua do not depend on the treaty either to be in this country or to assert their rights as indigenous people. The treaty affirms the rights of tangata whenua; it does not create them. It is Pākehā who have the most to gain from upholding the treaty, because the treaty gives us an honourable place in this land. Let me also say that people are sadly mistaken if, like Gerry Brownlee, they think they can dispose of the treaty by simply making some small restitution for stolen Māori land. The settlement of past injustices is certainly necessary in order to move forward, but when we get to the future the treaty will still be there, because it is about the ongoing relationship between tangata whenua and tangata tiriti.
Mr Peters makes great play about how different people interpret the principles of the treaty differently. Well, of course, they do. People have vastly different interpretations of what the treaty itself means. It is a constitutional document, and constitutional documents and principles are always the subject of debate. By way of illustration, I invite members to tell me what we mean by free speech. But perhaps that is an unfair question, judging by the conformity of the New Zealand First caucus. The principles of the treaty have been clearly elaborated by the Waitangi Tribunal, by the Court of Appeal, and by the Government itself—such as in 2000, when it outlined the treaty settlement process. It is not very hard for most people, if they put their minds to it just a little bit, to get the essence of what is meant by the principles of the treaty, and pointing out that there are varying interpretations of those principles is, in my view, a very weak argument for deleting reference to them.
I will not expound on the various components of what the principles may mean. Mita Ririnui already did that before the dinner break and temporarily silenced the baying jackals to my right, but I note that the silence was only temporary. The Green Party is not in the business of defending a redefinition and, in our view, a weakening of what the treaty actually means, but neither are the Greens about to support a bill that removes almost every legislative mention of the treaty. Mr Peters is being disingenuous. In the guise of going back to the words of the treaty, he would take us back to the time of Chief Justice Prendergast and the description of the treaty as a nullity.
JUDY TURNER (Deputy Leader—United Future)
: I rise on behalf of United Future to speak to the first reading of the Principles of the Treaty of Waitangi Deletion Bill. United Future will tentatively, cautiously, and, in some sectors, reluctantly support this first reading because of the opportunity that it affords us as a country to have the discussion that is needed.
At present in New Zealand the treaty is most frequently known in a grievance context, and the mentioning of principles appears to me to be an attempt at suggesting some current application, which is the discussion that United Future believes needs to happen. We think that this bill is a shabby vehicle, but it is the only one leaving the station, and we are very keen to hear from New Zealanders about this very important issue. However, do we think it is an election year gimmick? Yes, we do. It is appalling to think that the author of this bill has legal training, because this bill creates a legal vacuum—although it is unsurprising that we are dealing with a vacuum, when we consider that that is the kind of possibility a Government would face if it were forced to work with New Zealand First.
In the explanatory note Winston Peters’ criticism of Māori having unrealistic expectations, of them being anchored in the past, and his claim that references to the principles of the treaty are divisive, show that he is really uninformed about things Māori and of the concerns of many iwi. It is interesting to note that the attempt to define the principles of the treaty has actually happened. The Waitangi Tribunal came out with five rather interesting concepts to describe those principles: partnership, good faith, active protection, compromise, and the duty to consult. An interesting exercise—certainly this legislation in its current form provides no opportunity for it, and United Future would like to see it happen at a select committee—would be a discussion on whether it is possible to define the principles of the Treaty of Waitangi, seeing that that is the call on people’s hearts and minds that we constantly hear asked in this House. An interesting and more productive exercise would be to try to quantify those principles. Certainly, the Waitangi Tribunal, the courts, and others have suggested some interpretation of the principles. Some good discussion fodder is already in existence that could make quantifying those principles a very real discussion issue.
The interesting thing about this shabby legislation is that it does not actually appear to fix the problems that the sponsor intends it to fix. For instance, just removing this terminology does not mean that the requirement to consult Māori would be removed. Therefore, it is unusual that that is stated as being one of the intentions, yet the bill would not actually accomplish that goal.
The second thing this bill does not do is remove the requirement to develop Māori capacity for participation, yet I think that that is Mr Peters’ intention. The commentary lays out a whole set of goals, yet when we look very carefully at what is on offer we see that the bill does not actually accomplish quite a number of its significant goals. United Future will provide the opportunity for discussion on this bill. However, without hugely substantial changes, our support will go no further.
DARREN HUGHES (Labour—Otaki)
: I seek leave to table a document that includes the statement: “I think that New Zealand will be a better place if we can accommodate the concepts of partnership expressed in Te Tiriti o Waitangi.” The document is the maiden speech of Mr Gerry Brownlee.
- Document, by leave, laid on the Table of the House.
GERRY BROWNLEE (Deputy Leader—National)
: I raise a point of order, Madam Speaker. I ask that the member circulate that speech, because there are a lot of other good things in it. My real point of order, though, is that I have seen who the next speaker is, and I am of the opinion that the whole Parliament should now go into absolute silence. This will be one of those rare occasions when we hear a speech delivered by a bloke.
Madam DEPUTY SPEAKER: The member knows that that is not a point of order.
JOHN TAMIHERE (Labour—Tamaki Makaurau)
: Initially, I want to address the selective amnesia of members opposite. The member for Tauranga has often walked into this House and practised selective amnesia. He has practised selective amnesia to the extent that he was never here in the 1980s, in the 1990s, or in the year 2000. The member for Tauranga has often walked into this House and made much ado about nothing over many things, and today we have before us the most pithy, pious piece of paper this Parliament has ever been obliged to discuss.
The reality is as follows. Matiu Rata, a person whom that member would never know or come close to in terms of values, virtues, and actual principles, brought in the bill that in 1975 became the Treaty of Waitangi Act. In 1978 we had our first tribunal. In 1985 we started to look at Māori relationships, our constitution, and the treaty. In 1986 the State-Owned Enterprises Act included in legislation for the first time the term “principles of the treaty”. That was championed in the Labour caucus by Māori members, but particularly—and I acknowledge her tonight—by Mrs Tirikatene-Sullivan. Our constitution behoves us to observe those principles.
The members opposite have selective dementia—they now have not just selective amnesia but also selective dementia—and no longer want to acknowledge that we have three estates in our great constitution. One happens to be the executive, one happens to be the legislature, and the third happens to be the judiciary. We do have what is called a fourth estate, which at times, now and then, can kick in, depending on whether it has a great relationship with Rodney Hide. Putting that to one side, we have the fourth estate. The three main estates have ruled, and they make up our constitution. The Court of Appeal in 1987 determined three principles of the Treaty of Waitangi. The member for Tauranga knows that. He abuses this House by laying a dirty little piece of politics before it in terms of “getting rid of the principles”—the three principles laid down by our Court of Appeal for this House.
Gerry Brownlee: What are they?
JOHN TAMIHERE: Gerry Brownlee, the great spokesperson for the Māori people—Gerry Brownlee, all the way from Fendalton, all the way from that great Māori population in Christchurch—interjects in this House: “What are they?”. If he is thick enough to ask that question, he does not deserve the answer. That member knows that the Court of Appeal determined in 1987 that there would be the principle of partnership, the principle of active participation and protection, and the principle of compensation, and that they would be applicable on the merits of the particular case. That is what our Court of Appeal opined.
The member for Tauranga did nothing—not in 1987, not in 1988, not in 1989, not in 1990, and not in the 12 to 15 years after that. When he was Deputy Prime Minister, that member did nothing. He argued that we should not sell Kiwi assets, and he signed off on the sale of 40,000 hectares of land as soon as he had his hand on the pen as Deputy Prime Minister. Every day, in every way, the member from Tauranga wants to pretend to pursue the claim that the principles of the treaty do not exist or that we no longer know what they are. We know what they are, and we have named them in the House. Mita Ririnui named the principles of the treaty. We in the Government have been remiss about one thing: not expressing those principles more openly and overtly and stating them for what they are, because one of the great estates in our great constitution of which this Parliament is part has actually described them. They came through the judiciary and through the quasi-judicial processes of the Waitangi Tribunal.
So I say to members opposite: do not be fudged by Gerry Brownlee, that great spokesperson for the National Party. He knows nothing. He would not even know what the State-owned enterprises case was about, but he is the Māori spokesperson. The member for Tauranga does not know what the principles are, but he makes out that he is a practised and knowing lawyer. He does not know anything about it. Then we have Stephen Franks. God forbid! I do not know what is going on in our law schools these days, but how those two members got their law degrees no one knows.
DAIL JONES (NZ First)
: The main reason for bringing this bill before the House is that we as parliamentarians have to make sure that when we pass legislation the judiciary knows how to give effect to it. The considerable problems that have faced the judiciary over the insertion of the words “principles of” into certain pieces of legislation have shown the difficulties with such legislation, the varying interpretations of it, and the uncertainty surrounding it. New Zealand First intends to remove that uncertainty. Of course, New Zealand First has made sure that it has not supported “the principles of the Treaty of Waitangi” being inserted into legislation. In the House the other night on the Ngāti Tuwharetoa (Bay of Plenty) Bill I moved an amendment to have the words “the principles of” removed from the bill, and New Zealand First voted to have those words removed. ACT voted against that amendment; it voted to have the words “the principles of the Treaty of Waitangi” in the bill. So I think Mr Franks has got himself slightly confused.
Listening to the Labour Party tonight, one would think they were speaking from the basic principle that they will always support the inclusion of the words “the principles of the Treaty of Waitangi” in important legislation. Let us look at what has been passed by this House in recent times. Could there have been a more important piece of legislation affecting the Māori people than the foreshore and seabed legislation? However, the Labour Party is prepared to waive the inclusion of a reference to the principles of the Treaty of Waitangi in legislation when it suits the Labour Party, and that happened with the foreshore and seabed legislation. When the Labour Party tried to introduce a reference to “the Treaty of Waitangi, or its principles, or both”, New Zealand First objected, and the reference to “or its principles, or both” was removed.
Obviously, the Labour Party is flexible in its support of the so-called principles of the Treaty of Waitangi. This is extremely relevant to section 10(2)(b) of the Foreshore and Seabed Act relating to the jurisdiction of the High Court. Labour proposed to insert additional words in the corresponding clause of the Foreshore and Seabed Bill. This was rejected by New Zealand First, and Labour accepted New Zealand First’s view of the matter. The foreshore and seabed legislation stands as one of the most important pieces of legislation of this term, yet the Labour Party was prepared to delete that reference in it, because New Zealand First insisted on it. I have here, for any member who wants to read it, House of Representatives Supplementary Order Paper PC0562A(5)(a), which shows the effort made by the Labour Party to have those words put in the bill. But when it was confronted by New Zealand First it buckled, and the principles of the Treaty of Waitangi did not mean two hoots—it meant nothing—to the Labour Party when it came to the crunch.
Over the last 25 years, lawyers who have been otherwise unable to obtain employment have found a gold-plated means of advancement in the Treaty of Waitangi industry. They have done nothing for New Zealand. The only people who have been enriched or acquired places of power are those lawyers—people like John Tamihere—and litigants who would otherwise have made no worthwhile contribution to New Zealand. None of this gravy train has done anything to improve the lot of the Māori “westie”. I ask John Tamihere what he has done for any young Māori “westie” in West Auckland in so far as the treaty is concerned. He has not done a thing—not a fish, nothing—and where is he now?
Pita Paraone: He took the golden handshake.
DAIL JONES: He took the money from the young people on the Waipareira Trust. He deprived them of $190,000, plus tax on top of that—about $250,000. John Tamihere took the money. None of this gravy train has done anything to improve the lot of “westies” with a Māori heritage, who are yet to see a brass cent from any gravy train settlement. They all know how well some people, like John Tamihere and others, many of whom are not even Māori, have done out of the gravy train.
This bill is not an attack on the Treaty of Waitangi. One should recall Professor Matthew Palmer’s article in the
New Zealand Law Journal of June 2001, in which he indicated that the Treaty of Waitangi is not sensibly susceptible to ordinary techniques of statutory interpretation as they have evolved in a common law system. He makes it clear that the treaty does not yield black and white answers, that it does not express a contract, but that it does express an ongoing relationship, or set of relationships, and common law principles of statutory interpretations themselves set the treaty apart by requiring it, and reference to it, to be interpreted generally.
All that we are aiming to do here is to remove the reference to the words “principles of”. That is the main thing. Removing those words does not affect the Treaty of Waitangi and its application in those pieces of legislation in any way. It is just a lot of confusion, and, as members of Parliament, we owe it to the legal profession and to the people of New Zealand to ensure that when our legislation is passed it is clear. That was why New Zealand First took that principled view on the foreshore and seabed legislation, which meant that the Labour Government had to as well.
RUSSELL FAIRBROTHER (Labour—Napier)
: As I move around the electorate of Napier I see in the schools, in the family settings, in the social clubs, and in the workplace tearooms the expressions of the two quite distinct cultures of this country—the Pākehā culture and the Māori culture. I will never be Māori, as much as many Māori will never be Pākehā. It is a fact of life that we have two distinct cultures. That is one of the strengths of our country, and we celebrate it in many, many ways.
When I picked up this bill I thought, “Gosh, this man might be heading in the right direction”, because Winston Peters identifies a problem that has to be dealt with at some stage. But, of course, as the honourable Winston Peters stumbled towards the problem he took a 180-degree turn in the wrong direction. It is not a question of removing the principles of the Treaty of Waitangi; it is a matter of growing up and expressing the principles with, perhaps, greater clarity. It has been 20 years since an Act first embodied a reference to the Treaty of Waitangi. In that 20 years our development of thought and knowledge, the growth of the Māori culture, and the accommodation of it by Europeans in this country has been exponential. It is now a force that cannot be stopped.
We have in legislation a reference to the Treaty of Waitangi. It is a vague reference, but it is all that we have at this stage because nobody is yet prepared to do the hard work to identify what each Act of Parliament should do, which is to define the powers, the obligations, the functions, and the prohibitive behaviour that should occur. Until someone is prepared to do that, we need the reference to the Treaty of Waitangi for the courts to fill the void that is left by legislation that does not face up to the reality of what the treaty sets out to achieve.
The Treaty of Waitangi is a constitutional document. One can never define the principles in any definitive way, because they must be extracted on a situation by situation basis. Thus, until we can move our legislation to identify the remedy to be reached by statute—the mischief to be solved by legislation, in reference to the Treaty of Waitangi—then reference to “the principles” leaves it to the growing jurisprudence of the courts to determine what that should be. As we develop and grow up over the next few years, we will move from the uncertain reference of “the principles” to the specific reference of the mischief that seeks to be solved by an Act of Parliament.
This is, of course, part of the growth process that we are all going through as we address the difference in cultures in what really is a diverse country where many people can live in harmony and where diversity is a strength. It is not a question of race, as to whether one is Māori. Of course, if one is Māori, one can be part of the Māori culture. The question that the treaty seeks to deal with is the coercive power of the Government as it deals between the two cultures. When we address the coercive power of the Government in legislation, we need some reference to the treaty, because that is the basis on which we all came to be here. It is the basis on which the Māori race can continue with their cultural values. I have to say that if, after 1840, we had 3½ million Māori and only 500,000 Pākehā, then Pākehā would be claiming the Treaty of Waitangi as their document and their right to live in this country. It is not a document that is for Māori or for Pākehā. It is the foundation document for our society in this country. Until we can move, as a mature Parliament, to analyse in each piece of legislation the mischief that is to be solved by reference to the Treaty of Waitangi, then we must continue with this shorthand of “the principles”. One day we will move as a House to sit down and identify the mischief that each piece of legislation must set out to achieve, and as part of that identification we will be explicit as to how the treaty is involved. Once we are explicit in the legislation, we can move away from that general reference to the principles of the treaty. But until we mature as a society, as a Parliament, and as select committees, and we can look at the principles, rather than trying to break it down in some divisive way—until we can look at what we are trying to achieve—then we are left with that shorthand of “the principles” and we leave it to the judges to apply them in specific situations.
I look forward to the day when we move on, and when Winston Peters comes back with another bill that outlines that each piece of legislation should identify how the treaty is applied to the mischief that the legislation sets out to solve. I will be voting against the bill because it ends up by being destructive, although it started on a course that offered some hope when I first picked it up. The bill is a step in the right direction, but it takes a 180-degree turn in the wrong direction. Instead of promoting harmony in this country, it seeks to achieve the opposite. I will be voting against the bill.
STEPHEN FRANKS (ACT)
: I raise a point of order, Madam Speaker. I raise a matter that is not a complaint of contempt but a request for elucidation—not necessarily now, but perhaps when there is time for consideration—of whether Standing Order 395(f) would apply in a debate of this kind. I raise it because Standing Order 395 refers to contempt. It states quite clearly that a member who fails to declare, before participating in the consideration of any item of business, any pecuniary interest that the member has in that business—
Madam DEPUTY SPEAKER: No. The member will please be seated. I am going to rule. This matter should be raised as a point of privilege. The member knows that. That is the ruling.
STEPHEN FRANKS: I have not raised a matter of privilege. I have very carefully not raised a matter of privilege, and I do not intend to. I do not accuse anyone of breach of privilege. The rules that relate to breaches of privilege carefully distinguish between matters of privilege and matters of contempt. Indeed, in each place where contempt is used, it is used as an alternative; it is not used as a synonym for privilege.
I raise this issue because I believe that it can be debated without accusing anyone of anything malign. I do not believe that anyone has, consciously or unconsciously, breached privilege, but I do believe that there is an issue here. Three members of Labour, all Māori, made speeches about principles, when only spurious principles have resulted in so many of the fanciful claims before the Waitangi Tribunal. I do not mean the claims for historic land breaches. I mean things like the claims for flora and fauna, radio waves—
Madam DEPUTY SPEAKER: No, I am stopping the member. I have ruled correctly, and I have taken advice from the Clerk. The member cannot continue to speak about that. It is a matter of privilege, and that is the end of the matter. That is the ruling.
JIM PETERS (NZ First)
: I raise a point of order, Madam Speaker. I wish to draw your attention to the fact that there was an order given by someone in the House to sit down, and I do not believe that person was you. If you are going to allow that interruption, then I beg that you give due consideration to what was said.
Madam DEPUTY SPEAKER: Several comments were made at the time. I take the member’s point. [Interruption] No, there was not. A couple of points were raised, and I take the member’s point. I was on my feet and was telling the member to sit down. But I thank the member, anyway.
Rt Hon WINSTON PETERS (Leader—NZ First)
: Those who have heard this debate tonight will be gravely confused as to what the position of the Labour Party and the Green Party is. Frankly, those parties were given a chance to tell New Zealand what the principles of the Treaty of Waitangi are. I challenged them at the start to outline them, if they were supporting this bill, and Mr Russell Fairbrother, who is the most qualified of the legal team within Labour—the man with the most legal experience—let the cat out of the bag.
Russell Fairbrother said that Labour could not describe what the principles are. He admitted that the references are vague references—those were his words. He said that they could not be defined—those were his words. He said that we should continue with this shorthand in the meantime—whatever that means. Then he said a fascinating thing for a member who has been elected to this Parliament, in one of the greatest and longest-serving democracies in the Western World. He said that we should leave it for the courts to decide. There we have it. Who voted for the courts? When did they campaign? When were they asked to consult with the public? When these principles were first introduced back in 1986 by Geoffrey Palmer, which Māori asked for them? I ask Mr Fairbrother to name one who did so back then. But he cannot.
I say to Mr Fairbrother that I am very, very disappointed. He came here with such a high reputation and such a lofty understanding of the law, principles, and constitutional niceties, yet he has let himself and his colleagues down grievously.
Dail Jones: He used it as a defence for someone.
Rt Hon WINSTON PETERS: Yes, I remember that he used it as a defence for a guy—a most heinous man—and said that the man was the victim of colonisation. Mr Fairbrother said that man murdered someone because he was the victim of colonisation.
With the greatest of respect, we can see what has happened here tonight. Down from the ninth floor has come the edict telling the boys and girls that Labour is in trouble with the Māori vote, so that no matter what sense and logic is told in this debate, the Labour members must just ignore it and go out, put up any old defence, and vote against this bill. Let me tell Labour this: it might win tonight, but it will be a short-run victory—very short.
We in New Zealand First are a group of members of Parliament that includes six Māori. Frankly, we are appalled at the condition that Māori have got into, whilst Labour has allowed Māori to be sidetracked on this issue. In every respect—housing, health, education, jobs, careers, and futures—Māori have fallen back massively under Labour. All that Labour has to offer is this experiment of the principles that it cannot explain. Worst of all, we are facing the arrogance of members, such as the member for Whanganui, who say to Māori in the most invertedly racist way that they know more than them. Labour members are telling Māori to keep quiet because they are the voice of Māori. It is the new version of the white man’s burden. They are telling Māori to listen to them because they know more than them.
Well, we in New Zealand First say that Labour members do not know better, and that shortly they and their colleagues will be gone. One reason is that Māori want real things. That is why they have gone in droves to Australia, and why they make such a fortune over there as families. They do not have the treaty parachute on their back.
Jill Pettis: When are you joining them?
Rt Hon WINSTON PETERS: Actually, I am having big meetings in Queensland, Sydney, Melbourne, and Perth. The whānau will be out in their thousands.
Hon Member: Take your time.
Rt Hon WINSTON PETERS: I will take my time, because we have plenty of time on our hands. My colleagues will come too. On election night, when the polls are coming in, the people are giving their verdict, and Labour is going down, Labour members will say that they wished they had listened to New Zealand First. They will wish that they had not been so arrogant and had listened to the one party that understands Māori, ordinary people, and workers, and understands their dreams, hopes, and aspirations. They will wish that they had backed New Zealand First’s view.
A party vote was called for on the question,
That the Principles of the Treaty of Waitangi Deletion Bill be now read a first time.
||New Zealand National 25; New Zealand First 13; ACT New Zealand 8; United Future 5.
||New Zealand Labour 51; Green Party 9; Progressive 2; Māori Party 1.
|Motion not agreed to.
Rt Hon WINSTON PETERS (Leader—NZ First)
: I raise a point of order, Madam Speaker. I feel that it would be very, very ill-mannered of me if I did not thank all those members who voted for this bill and put their country first before their narrow, selfish political selves.
Madam DEPUTY SPEAKER: The member knows that that is not a point of order.