Flavell: Climate and Renewable Preferences Bill
Climate Change and Renewable Preferences Bill
Te Ururoa Flavell, Treaty Spokesperson for the Maori Party
Committee Stage; Tuesday 2 September 2008
[SOP 240] : 2a : Act to give effect to Treaty of Watiangi
Madam Speaker, I am rising to talk to our Supplementary Order Paper, to insert a new clause to give effect to the Treaty of Waitangi.
We believe that an explicit reference to the Treaty of Waitangi added to the Climate Change (Emissions Trading and Renewable Preference) Bill will ensure that the Emissions Trading Scheme will be implemented and operated in accordance with the rights guaranteed to Maori under the Treaty of Waitangi.
Madam Speaker, nearly thirty Maori entities made submissions on this Bill - rünanga, trusts, corporations, and representative bodies including the Federation of Maori Authorities.
Many of these submitters raised concerns in their hearings before the Finance and Expenditure select committee that the Bill as introduced, conflicted with the principles and provisions of Te Ture Whenua Maori Act 1993 and breached the Treaty of Waitangi.
And in particular, that it breached Article 2 of the Treaty by posing an encumbrance over Maori land that fails to uphold the Crown’s guarantee to protect rangatiratanga.
For this reason, Maori submitters have argued that the Bill effects an alienation of Maori land, and their rights and authority over their lands.
Submitters have also argued that under the Bill, the Crown has assumed to itself the ownership, allocation and management of the carbon allocation resource.
They have argued that instead of wholesale ownership and control, that the Crown is meant to consult with its Treaty partner, to protect the rangatiratanga of Maori, and compensate if they cannot do that.
As a remedy, submitters asked the Committee to add a Treaty clause to the Bill to ensure that the implementation and operation of the emissions trading scheme shall not be inconsistent with the Treaty of Waitangi.
This request was ignored – as many other requests to honour and uphold the Treaty have been similarly and routinely ignored.
The Maori Party, however, refuses to ignore the rights of our people to have the guarantee of rangatiratanga upheld, and so we submit an amendment to have a Treaty clause added to this Bill.
We seek to include the words, that this Act should give effect to Treaty of Waitangi.
‘To give effect’ to the Treaty creates more positive and substantive obligations on all bodies covered by the Act to give effect to the Treaty principles, and so carries a higher likelihood that the Courts will be called on to interpret its application in the sector.
If identifiable Maori rights and interests protected by the Treaty are to be affected by proposed legislation, the question may arise whether there should, as a matter of policy, be some specific recognition or protection of those rights and interests by the inclusion of an appropriate provision in the legislation.
In any event there will be a question of the effect of the proposed legislation on those rights and interests, whether or not such a provision is included.
For examples of what the identifiable Maori rights and interests protected by the Treaty that stand to be threatened by this Bill, we only need to turn to the example of Ngai Tahu.
The first day of spring was significant for more than one reason. For on the first day of spring this year a late Waitangi Tribunal claim was filed in response to a large iwi, concerned about what it called a "significant threat" to its 1998 settlement.
According to the kaiwhakahaere of Te Runanga o Ngai Tahu, Mark Solomon, the emissions trading scheme will undermine their settlement and unwind the very purpose of the settlement that they set out to achieve over the lives of many generations.
This condemnation of the Government’s flagship policy came from none other than Te Runanga o Ngai Tahu who boldly stood up, and told the nation, that this legislation before the House now, would "literally wipe tens of millions of dollars off the value of the forestry assets they received as part of our settlement".
This was an urgent call from Ngai Tahu, because they were concerned that every effort must be made to safeguard the future of Ngai Tahu whanui. In effect their view is that the Crown continues to threaten the integrity of the Ngai Tahu settlement.
And it is an affront on this iwi, that the Minister will stand in the house today, and refute the analysis that they have been forced to present.
This will not have been an easy decision for Ngai Tahu to take.
Mark Solomon has put the case - that this Emissions Trading Scheme, represents a significant threat to both the integrity and finality of their settlement. The very least the Government should do is to listen to their concerns, and ask why.
This is not the first time this concern has come before Government.
Indeed one of their own departments alerted them to the threat that this scheme could cost taxpayers hundreds of millions of dollars in payments to iwi.
A Ministry of Agriculture and Forestry report obtained by media last month suggested the scheme could leave the Crown open to substantial claims because the value of land handed to iwi under Treaty of Waitangi settlements could substantially decrease.
So it is appropriate that Ngai Tahu have some concerns because the ETS basically jeopardises their settlement, and in their view this amounts to another confiscation. For an iwi that have already signed up to agreements many years ago, they will have to carry the burden of ETS into the future.
The problem is that when the door is closed on settlements, we are leaving it for the iwi to carry the burden. That is, with the passing of this Bill, they have no opportunity to revisit the ramifications of such a Bill our earlier settlements.
This is what we have seen in the settlement process time and time again– it creates a new grievance.
The Crown believes mistakenly that one issue has been settled and they can turn their back on that iwi.
But for us, the concept of settlement is to bring the iwi together with the Crown, to work together constructively. Ngai Tahu want to do that with the Crown and that is absolutely appropriate.
We understand their concern, that with the passing of this Bill, we are creating another new grievance.
It is a view that others hold.
Tangata whenua have continually maintained that the provisions of the Bill relating to pre-1990 forested Maori land are contrary to the provisions of the Treaty of Waitangi.
We say that the Emissions Trading Scheme undermines the principles of both Te Tiriti o Waitangi and Te Ture Whenua Maori Act 1993.
The Preamble to the Te Ture Whenua Maori Act 1993 clearly aligns it to the principles of the Treaty of Waitangi providing for, among other things, the "development, and utilization of that land for the benefit of its owners, their whanau, and their hapu".
This right is clearly extinguished when a significant cost is imposed for Maori owners to change their land use from forestry when benefit to owners would be achieved by making such a change.
We have also received advice from Maori just this morning, who have let us know that when the first cases go to the Maori Land Court (which they inevitably will when the Ministry for the Environment, Chief Executive tries to have memorials registered on pre-1990 forested Maori land titles) they will then be turning to Labour, the Greens and NZ First to say, that this is what happens when important legislation is dealt with in such a shonky, back room way.
Madam Speaker, Ngai Tahu’s concerns for their land and forestry assets are not the only reason why the Maori Party opposes the ETS.
The Maori Party accepts that any Emissions Reduction Programme will result in changes to land values, and will enable the government, business and the public to account for the environmental costs on business, including forestry.
So that is not the reason why we oppose the Bill.
The primary reasons why the Maori Party opposes the Bill, is that
• it is not effective in reducing emissions;
• it is not transparent; and polluters do not pay,
• they receive massive subsidies in the form of corporate welfare,
• so the whole point of economic incentives to cut emissions is defeated.
Our SOP is a best shot at pulling all concerns Maori hold, onto the agenda. It is a short statement, but the ramifications are far reaching.