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Walking Access Bill – The Yes, But Bill

Walking Access Bill – The Yes, But Bill

Te Ururoa Flavell, MP for Waiariki

Second reading; Tuesday 26 August 2008; 8pm


As I understand it, there was a key statement that appeared throughout some of the 136 submissions received from the public about this Bill.

I note that the submission from Te Runanga o Ngai Tahu stated it clearly: TheCrown has a duty under article 2 of the Treaty to protect Maori in use of their lands and waterways to the fullest extent practicable.

The Tuwharetoa Maori Trust Board and the Federation of Maori Authorities were united in their position, which was:

“Article two of the Treaty granted ‘te tino rangatiratanga…o ratou whenua o ratou kainga me o ratou taonga katoa’, or the ‘full and undisturbed possession of their lands and estates, fisheries and other properties’. This article therefore guarantees Maori the right to determine access to their land.”


Madam Speaker, I have to say it is a view which the Maori Party absolutely supports. 

We know that iwi Maori have a special relationship, a partnership relationship with the Crown that is separate from that of general citizens.  

We also know that a consequence of the unique Treaty relationship involves the duty of the Crown, and all agents of the Crown, to undertake the active protection of the rangatiratanga rights under article two.

And so when the Local Government and Environment Select Committee furnished its report without so much as even the word Treaty included Madam Speaker, in its brief, we thought there must have been some huge mistake.

We will, therefore, be representing the views of hapu and iwi, and during the committee stage of the House will introduce the Treaty clause that submitters asked be inserted into this Bill.

It makes for interesting analysis that the first two Bills on the order paper today, this Walking Access Bill and the Policing Bill, have both suffered from miniscule vision when it comes to the most critical issue of honouring Te Tiriti o Waitangi.

And we are trying not to read too much into it, that in both cases, Te Runanga o Ngai Tahu has been instrumental in coming forward, recommending to the Crown that a Treaty clause would improve the overall effectiveness of the legislation.

We may well ask, why is the Crown not prepared to listen to the wisdom of Ngai Tahu in helping this nation to move forward? 

The Runanga o Ngai Tahu submission outlined what a Treaty clause could do, in effect.

A Treaty clause would ensure that the rangatiratanga and mana of tangata whenua over customary land and sites of significance is respected and protected.

A Treaty clause would enable our kaitiaki responsibilities to be recognized in decision-making.

A Treaty clause would demonstrate that public access to private land and Maori land remains subject to negotiation and agreement with land-holders.

If not through the Bill, then one at the very least would expect the New Zealand Walking Access Commission would include, as both the Federation of Maori Authorities and the Tuwharetoa Trust Board recommended, a Treaty clause as an important provision being enshrined in their constitution and rules.  Madam Speaker, this is important for this Bill, FOMA advised us.

Any Bill which threatens to impact onte tino rangatiratanga…o ratou whenua o ratou kainga me o ratou taonga katoa’  we in the Maori Party take very, very seriously. 

Maori have already been, and continue to be, the deprivation to most of our people, for most of our lands and do not want to see the continuation of any more plans to alienate or confiscate in the name of the Crown.

We in the Maori Party hold true to the challenge laid down so many years ago by Tahupotiki Wiremu Ratana, that the Treaty should be embodied in statute; that legislation should ensure the protection from sale of our lands; that there should be no more land confiscation and that there should be compensation for land that has been stolen. 

This was the challenge represented, I believe, through the placement before a former Labour Prime Minister, Madam Speaker of four objects – a potato, a broken watch, a huia feather, and a greenstone tiki.

I have heard and read about, TW Ratana explained to Michael Joseph Savage that the potato was the ordinary Maori, needing his land.  The broken watch was the broken machinery of law relating to the lands of the Maori.  Only the law could repair the law.

The tiki stood for the mana of the Maori people – and the huia feather, the sign of a chief, that would be worn by Mr Savage if he would look after his Maori people.

And yet as history and Hansard records, that Huia feather would not be worn; the tiki would be discarded – as indeed we believe those original four objects to be would all be lost in the legacy of broken promises and unfulfilled dreams.

Madam Speaker, this Bill would have been an opportunity to address those expectations. 

This Bill could have signalled a commitment to enshrine the Treaty in legislation, it could have been used to repair the law itself, to guard against further alienation. 

So we ask, why is it that this Government is not prepared to insert a Treaty clause in to this legislation? 

Why did they not support the Maori Party amendment to insert a Treaty Clause in the Policing Bill, when the numbers on that evening indicated the amendment would have passed in the House with 60 Ayes and 58 Noes? 

Instead, what we have is the Yes, But Bill.

Clause 8 of the Bill deals to thecomposition of the New Zealand Walking Access Commission.  Submitters recommended that Maori representation, the capacity for sharing knowledge of tikanga Maori on Commission’s Board, be increased from one.

The Select Committee included that view in the report – Yes, but no amendments were included to address it.

Then we turn to theprotection of sites of Maori cultural significance.

Te Runanga o Ngai Tahu advised that permission should be sought from tangata whenua before information relating to mahinga kai, wahi tapu and other sites of cultural significance be published.

Yes, the Committee agreed it was important  - but it was not so much ‘significance’ but cultural sensitivities that the Commission should take account of.  Clause 10 (2) minimises the advice of Ngai Tahu by suggesting the Commission should consider any cultural sensitivities of which it is aware, without actually explicitly requiring them to gain the permission of tangata whenua.

Then there’s the concept of the Code of Responsible Conduct for users and landholders.

Again, Te Runanga o Ngai Tahu, came up with robust advice – specifying that the Code should include information on tikanga Maori, Maori relationships with land and waters, and desirable standards of behaviour to be observed when accessing sites.

Yes, but we’ll just take on the first part of this thinking though the Select Committee, and so clause 16 (1) (bb) was inserted to include reference to guidance about tikanga Maori.

The Federation of Maori Authorities had spoken for many in endorsing the principle of a Code of Conduct as a benchmark standard against which the users must adhere to.  It was hoped that such gold standards would include information and understanding of Maori land (rahui, negotiated permission, waahi tapu, all those sorts of things) as part of the desirable standards of behaviour to be observed.

And so it is disappointing, that the Select Committee has continued to be a little bit half-hearted, in its recommendations to simply include a reference to guidance about tikanga Maori, rather than a stronger statement of support such as adherence to tikanga Maori.

There are some very positive features of the Bill as it has emerged from the Select Committee process.  We are pleased that there are new clauses to require the Commission to take into account the views of local hapü and iwi in the naming of walkways over either public or private land.

We are pleased too, with the amendment to clause 29 to allow the Commission to purchase private land as a means to provide public access.  The word ‘acquire’ has been removed from this clause to remove the implication of the compulsory acquisition of private land; a concept which Maori shudder to even contemplate.

But, in summary, our position on this Bill is influenced by the prevailing Yes, But mentality. 

Madam Speaker, we do not believe it is acceptable to minimise, to trivialise, to compromise the guarantee of the Treaty to protect Maori in use of their lands and waterways to the fullest extent practicable.

Throughout this Bill, every attempt is made to dilute and diminish the mana of the arguments put forward by mana whenua.   And because of that, we can not possibly support this Bill at this second reading.


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