Hon Christopher Finlayson

Part 3 Treaty of Waitangi Act 1975

CHRISTOPHER FINLAYSON (National) : Part 3 deals with amendments to the Treaty of Waitangi Act 1975—legislation as important as any in the history of this Parliament.

I think the Waitangi Tribunal was a creation of the Hon Matiu Rata in 1975. It was probably the only constructive contribution he made to political life, but it was a very important contribution. In 1984 the jurisdiction of the tribunal was extended to cover historical claims dating from 1840. Throughout the 1990s there was an outstanding performance by the National Government as the Rt Hon Doug Graham and the Rt Hon Jim Bolger achieved wonderful things by settling a large number of claims, starting with the fisheries claim in 1992.

Since then there has been a big gap when nothing has been done. This afternoon I do not want to focus on that big gap. I see the member for Otaki going red with embarrassment—rightly so—because it is an appalling performance by a do-nothing Government.

Sue Moroney: Is the Government doing too much or too little? They can’t keep a straight line on it.

CHRISTOPHER FINLAYSON: I want to focus on the changes that were introduced by the Treaty of Waitangi Act 1975, and I suggest that Sue Moroney sit quietly and listen. Clause 15 amends section 4. For the benefit of Ms Moroney, I say that section 4 establishes the tribunal. Section 4(2) sets out the composition of the tribunal. The tribunal is to be chaired by a judge or retired judge of the High Court, or the Chief Judge of the Māori Land Court, and that position is currently held by a distinguished judge, Judge Joe Williams.

Mr Paraone has introduced a member’s bill to try to deal with some alleged conflict of interests, but that is not germane to this debate. Even though his bill is misguided, I am not going to dwell on it because that would be contrary to the Standing Orders. Instead, I am going to focus on subsection 2(b) of section 4, which is proposed to be amended by the Māori Purposes Bill (No 2). This subsection states that the tribunal shall consist of “Not less than 2 other members and not more than 16 other members to be appointed by the Governor-General on the recommendation of the Minister of Maori Affairs made after consultation with the Minister of Justice.”

What is proposed by clause 15 is that the number of persons who may serve on the tribunal be increased from 16 to 20. The National Party says that this is a good change, because there is a lot of work still to be done by the tribunal. Although the tribunal has published a large number of very good reports over the years, there is still work to be done. In order to achieve justice in a speedy manner there needs to be more members serving on the tribunal. We have no problem with that proposal.

As I was reading section 4 of the Treaty of Waitangi Act in preparation for the debate, I came across subsection (5), which I will mention just briefly. The Ministry of Justice is required to: “furnish such secretarial, recording, and other services as may be necessary to enable the Tribunal to exercise its functions and powers.” The point I make—and the National members made it in the Māori Affairs Committee—is that it is all very well to increase the number of tribunal members, but the Ministry of Justice and the Minister of Justice have to ensure that the tribunal is properly resourced, not just in human resources, which of course are important, but in other resources, so that the tribunal can carry out its functions and powers. There has to be an end to the stop-start hearings that the tribunal has had to endure. That can happen only if the Ministry of Justice properly resources the tribunal, which has not been properly resourced for years.

The second section to be amended is section 6, which on the face of it is a rather dry legalistic section but which actually reflects the history of Treaty settlements since 1992. It is a very important section. Rather than simply deal with it in a perfunctory way, I want to go through it in a little bit of detail for the benefit of the Committee. The section deals with the jurisdiction of the tribunal to consider Treaty claims. The idea is that the section is amended to provide that when a claim is settled, the jurisdiction of the tribunal to inquire into claims in respect of those matters is ousted, and that the tribunal will not have jurisdiction to inquire or further inquire into any recommendation arising out of that particular claim.

It is proposed that subsections (8) to (32) of section 6 be deleted, and that instead of constant amendments of this section, references will be put in a schedule of the Act. I think that is a very sensible way of drafting. How that escaped the draftsman’s eye some years ago—that it would be a sensible way of drafting—escapes me, frankly, because it is a bit of a nuisance to have to amend the Act every time there is a settlement. But that is the way it has had to be done for a number of years until now.

When one goes through section 6 one sees, for example, that subsection (7), which is not to be schedulised, deals with the great fisheries settlement of 1992. Well, I remember studying that subsection when I used to do work for the Treaty of Waitangi Fisheries Commission, and when there were attacks on the settlement and on the method of allocation. We had to determine whether the claims could properly be made or whether the jurisdiction of the tribunal was ousted.

Subsection (8) deals with the great Tainui settlement. Subsection (9) and a few subsequent subsections deal with the great Ngāi Tahu settlement. It goes on through the settlements of the last few years. Whenever there has been a settlement there has been an amendment to section 6 to deal with the jurisdiction of the tribunal. Another example is section 6(22), which deals with an aspect of the Ngāti Tama Claims Settlement Act 2003.

So there we have it. It is a sensible provision. It is a rather clumsy way of drafting to have to have all these amendments tacked on. As we can see, we are now up to subsection (32). It is a much more sensible legislative mechanism to have the substantive section, and then have enactments to which the jurisdiction of the tribunal is subject to be referred to in schedule 3. As I said, one can expect a lot more references in schedule 3 over the next few years as a John Key - led Government gets on with the incredibly important business of negotiating settlements. I bet the Committee--

Hon Darren Hughes: If they can make their minds up.

CHRISTOPHER FINLAYSON: —and I bet the member for Otaki that in 9 years’ time our record will make him look redder than ever.