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Speech: Flavell - Buy Back of Land

Public Works Amendment Bill : Buy Back of Land
Treaty Settlements and Beyond Conference, Wellington; 17 June 2009; 2.30pm
Te Ururoa Flavell, MP for Waiariki

When the Public Works (Offer Back of and Compensation for Acquired Land) Amendment Bill was drawn out of the ballot on 26 July 2007, who would have thought that two years later a major hui would gather at the Copthorne on Oriental Bay; to set the foundation for that Bill to be read a very first time in Parliament later that day?

It is a great twist of fate that today – the day we debate the Public Works Bill in the context of Treaty settlements and beyond – is the very same day in which the Bill will take its first reading later tonight.

Our old people might have called this ‘te hunga wairua’ - the sense of belonging to our tupuna, our atua, our moana – in which the spirit moves.

In fact they might say it was all meant to be. I mean consider this. The drawing of Private Members Bills are few and far between. So since Parliament started some 6-7 months ago, there have been no ballots as far as I know. There has to be gaps in the programme.

Then the chances of us pulling a Bill out of the Ballot is fairly slim if you consider that maybe up to one hundred of the 120 MPs might have a Bill in the draw.

It was only the second time that the Maori Party had a Bill in the draw, the first being the Repeal of the Foreshore and Seabed Bill. That was drawn first time up, my Bill gets drawn first time. And here we are on the actual day that the Bill arrives in the House and I am here talking about it. I mean, I could have been on the agenda here tomorrow or even yesterday. It’s a good day isn’t it?

Anyway back to the Bill. The call to protect the interests of former land owners who want their land returned, is an issue that has reared its head only since the Maori Party entered into a coalition arrangement with the National Party.

Issues arising from the Public Works Act 1981, and earlier Public Works Acts passed in 1882 and 1928, have been examined in numerous reviews, petitions to Parliament, and proceedings of the Waitangi Tribunal.

The consequences of land being taken and not returned, stretches back to 1864, with the Public Lands Work legislation of that time being the first Act to give the Government powers to take customary land, and Crown-granted Maori land for what were called “public purposes”.

This piece of legislation was introduced in wartime – and of course in that time, before Maori gained representation inside the hallowed halls of Parliament.

It would not be for another three years, with the Maori Representation Act of 1867, that Maori gained a political voice in Parliament, that is Maori males over the age of 21, including what was then described as ‘half-castes’.

There was an interesting exclusion in the Maori Representation Act that specified that the franchise granted to Maori, excluded any who had been "attainted or convicted of any treason felony or infamous offence". This provision was specifically intended to exclude rebels against the Crown.

This becomes interesting when set against a third piece of legislation of that time, the New Zealand Settlements Act of 1863. This Act provided for the confiscation of Maori land. The motivation for the Act came supposedly as a punitive measure to address the situation of Maori who were allegedly resisting the imposition of British rule.

This history is now well known. Against the express wishes of the rangatira, Wiremu Kingi Te Rangitake, Governor Thomas Gore Brown bought land at Waitara in Taranaki in 1859. To stifle the resistance, Browne ordered the army to attack, armed conflict erupted and War would dominate the landscapes of Taranaki for much of the next three decades.

In July 1863 the Waikato War began, when Governor Grey, perceiving the Waikato as the centre of greatest resistance to British authority, directed British troops to invade the heartland of the Kingitanga.

Set within vast areas of bitter conflict, the New Zealand Settlements Act 1863, and the Public Lands Work Act of 1864 take on a particular meaning. Although these pieces of legislation might, on the surface, look like providing the legislative basis for European settlement in Aotearoa, the intention of the Acts was, in hindsight, to punish tangata whenua through the profound and widespread confiscation of Maori land.

These Acts had a particularly major impact in the Waikato, Taranaki, Bay of Plenty and Hawkes Bay districts, where vast areas of land were said to be confiscated. In sum, more than four million acres of Maori land were confiscated.

In Taranaki, for instance, the effects of these acts of raupatu were so significant that it was only one year after the Public Lands Work Act, in 1865, that almost the entire totality of the land had been taken.

With a country in the throes of war, it is evident that this suite of legislation in the 1860s made a direct association between the taking of land for public works and the process of confiscation.

The 1864 definition of public works included works associated with roads, bridges, ferries and later the electric telegraph.

Although some of this land was subsequently paid for, or returned to Maori, it was most often not returned to its original owners. The land would be returned, instead, to individuals under Crown grant, not to tribal ownership under customary title.

And so here we are today, 145 years later and many prolonged and intense investigations having been undertaken, saying enough is enough.

These investigations generally resulted in recommendations to amend the principal Act in order to ensure the ‘offer back’ provisions are clarified.

It was suggested that clarification of these provisions would both facilitate enforceability and certainty in application.

The investigations also consistently recommended that compensation should be made to original land owners where their land has been acquired under the Act.

The Maori Party went into the 2008 election with a very clear principle, that is No more Maori Land will be taken via the Public Works Act.

We said also, Maori owners will be given right of first refusal over land that the Crown no longer requires for the purpose for which it was originally intended

The purpose of the Bill that I am presenting to Parliament tonight, is to ensure that former owners of Māori or general land taken or acquired by the Crown for the purposes of a public work are given the right of first refusal over land which the Crown no longer requires for the public work for which it was originally taken or acquired.

In effect, there are three key provisions in my Bill.

The first relates to the right of first refusal being offered to the former land owners.

The second provides for solatium payments for former landowners deprived of their land for public works purposes for which the land was never actually used.

And the third, is to provide for the descendants of the former owners to exercise their rights, where the former owners are deceased.

Fortunately for you and me, the intricacies and interpretations of concepts such as solatium are going to be dealt with in more detail by the expertise of the Simpson Grierson Senior Associate, Daniel Kelleher, so I will leave that to him.

Suffice to say, however, my Bill will provide for compensation – or solatium payments - to be made for loss of land and/or, loss of opportunities associated with that land; where that land was acquired or alienated for public works for which it was not actually used.

Can I say that the provisions around compensatory payments came directly from the recommendations of the 2001 review conducted by Land Information New Zealand.

My good friend Mr Kelleher will also expand on the findings and directions from the 2001 review, but in essence there was a strong call from submitters for compensation provisions to be included in the Act.

The specific focus of much of the investigations, and indeed my Bill, is around amending section 40 of the Public Works Act which deals with the disposal of surplus land. Submitters have concluded that section 40 is inadequate to protect the interests of former land owners who want their land returned. In their estimation, until the section is strengthened, misuse of the Act will continue.

The effect of just this one provision can not be overstated.

Eventually, the authority to take Maori land for public works widened from the 1864 Act to include provincial councils and local authorities, as well as central government.

As well as that, the definition of public works was stretched by subsequent legislation. The Waitangi Tribunal has described public works being defined to include railways, river, harbour and other water works, irrigation and damage (drainage?) works; land for the purposes of recreation, public domains, reserves and scenery preservation.

Public works I am told also included those associated with land settlement, soldier settlement, noxious weeds, mining, quarries, hydro and geothermal works, aerodromes, defence, town planning, motorways, Government buildings, river and soil conservation, education, land development, and subdivision and housing programmes.

There have also been extensive works included at a local authority level including rubbish dumps, local roads and local domains.

Pretty comprehensive one might say. It seems the only thing missing from the list is shopping malls and go kart tracks.

Just to put some local detail to this whole context of land alienation and dispossession, during the course of drafting of this Bill, I have been approached by people seeking justice for:

* The return of two blocks of land on Panepane point on Matakana Island, land currently owned by the Western Bay of Plenty District Council through the Act.

* the maze of paper roads that run through Te Urewera.

* the Paraparaumu Airport lands; Te Whanau a Te Ngarara Incorporated. The airport land was taken by the Government under the Public Works Act to build a Second World War aerodrome. It was then sold to private interests by tender, with the tender limited to people participating in the aviation industry.

* At home in Rotorua, we have had the same concerns when in the early 1960s, about 81ha of the hapu land of Ngati Uenukukopako, was taken under the Public Works Act for the establishment of an aerodrome.

* Claimants from the Ngati Turangitukua hapu have asked for the mandatory return of land the Crown took under the Public Works Act to develop the town of Turangi in the 1960s.

* There was the call from a New Plymouth hapu, Ngati Te Whiti, against plans for council-owned land near Te Henui Cemetery. Ngati Te Whiti Ahi Kaa has petitioned the New Plymouth District Council that the site is ancestral land that should be returned to tangata whenua.

* Or there’s the case of the land overlooking the harbour at Te Atatu; land was acquired by the Auckland Harbour Board in the 1950s under the Public Works Act for development as a deep water port. Waitakere City Council set aside part of this land for a marae project in 2002; but the actual site is encompassed within land which the original descendants of that whenua believe should have been offered back to the original owners in the 1980s.

Further North, near Moerewa, there’s the case of Orauta School which was established on Crown land reserved for Maori school use.
And of course it is not only Maori that have suffered from this policy. The Independent Financial Review of 1 November 2006 reported on a case involving a Pakeha family; the Lambie family in Auckland who had their farm land compulsorily acquired by Auckland International Airport in the 1970s.

The crux of this matter is that whether it was confiscated or taken under the Public Works Act, the original owners want their land returned.

This issue will not go away.

The catch cry heralded by Dame Whina Cooper in the famous hikoi of 1975, the Maori Land March was “not one more acre of Maori land” would be taken.

The Waitangi Tribunal, in their research on public works takings, put it another way, and I quote:

“The principles underlying the issue of compulsory acquisition, where kawanatanga overrides the guarantee of tino rangatiratanga, lies at the heart of the questions about the Treaty relationship between Maori and the Crown”.

Tonight, the Maori Party will be standing in the debating chamber to put these questions to the Parliament. Let us hope the time has come, that the Parliament of 2009 is brave enough to say, enough is enough, let us put this matter right.

ENDS

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