Hon Christopher Finlayson

Part 2 Provisions relating to transfers of assets, allocation principles, Crown agreed proportion, and DSP properties

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.