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Speech: Flavell - ETS Treaty Clause

Te Ururoa Flavell; Treaty Settlements Spokesperson
Tuesday 25 November 2009

I rise to talk to the Maori Party’s supplementary order paper, to amend supplementary order paper number 89. I do so on behalf of my colleague, Rahui Katene, who did much of the work on our behalf.

Sir it is with a huge amount of pride that this Bill, through the efforts of the Maori Party, will recognise the Treaty of Waitangi, and specifically set out the ongoing decisions on which Crown has an obligation to consult.

I do so in the knowledge that the Treaty was effectively absent from New Zealand legislation for over 135 years.

In 1975 the Treaty of Waitangi Act effectively incorporated the Treaty into legislation, and delegated a role to the Tribunal to determine the meaning of the Treaty and Treaty principles.

Since that time Parliament has included Treaty legislative references and provided some legislative guidance on the Treaty’s meaning.

Mr Speaker, our SOP today, provides the key statement, “In order to recognise and respect the Crown’s responsibility to give effect to the Principles of the Treaty of Waitangi”.

In doing so, it falls into the category classified by Matthew Palmer as the ‘recognise and respect’ category – reflecting provisions which are often used in the statute to ensure the Treaty is treated with the highest level of attention.

But there is another element to the SOP which leads to further discussion and that is the wording ‘to give effect’.

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For those in the House with a good knowledge of the statute you will recall this is found in section 4 of the Conservation Act, where it states that “this Act shall so be interpreted and administered as to give effect to the principles of the Treaty of Waitangi”.

Mr Speaker, if one was to wander through legislation we would see a colourful menu of clauses which effectively incorporate the Treaty. The Royal NZ Foundation for the Blind state the need to “give particular recognition to the Treaty principles”.

The Resource Management Act asks us to take into account the Treaty principles.

The Environment Act requires us to ensure full and balanced account of the Treaty principles while the Crown Minerals Act recommends we have regard to the Treaty principles.

Basically there is a rich archive of legislative activity in relation to the Treaty which has helped to guide the appropriate interpretation of Treaty clauses in legislation.

Within this context it is somewhat bizarre to think that some parties still question the need for a Treaty clause; or that they are overly concerned about the fact that we were working on the Treaty provisions right up until the hours leading up to the announcement yesterday.

Mr Speaker, we understand there is a wide spectrum of knowledge around this House, about what the Treaty means in practice.

For the National Party and the Maori Party the requirement to provide due cognisance of Treaty analysis and interpretation is something that we both value to the extent that it is one of the first statements in our relationship agreement

That agreement stipulated that “both the National Party and the Maori Party will act in accordance with Te Tiriti o Waitangi / The Treaty of Waitangi”.

It has to be said, Mr Speaker, that it has been disappointing that the National Party has had some difficulty, prior to this Bill, to living up to that clear aspiration to act in accordance with the Treaty.

And sir, if there was ever an issue that the Treaty principles should have been applied it would have been the Local Government (Tamaki Makaurau Reorganisation) Act. The governance reorganisation of Auckland would have been an entirely appropriate mechanism to enhance Treaty responsiveness.

It didn’t – that certainly brassed us off – but that’s another story.

But this Bill – the Climate Change Response (Moderated Emissions Trading) Amendment Bill – is a chance to set the record straight, to pursue an honourable course of Treaty jurisprudence.

Mr Speaker, I want to make it clear that our intention in drafting the Treaty clause is to provide for the ongoing engagement of tangata whenua in the scheme and ensure that the distinct situation of Iwi Māori, including rights and interests under the Treaty, are fairly accommodated for in implementation of the scheme.

I want to return to the notion of the Treaty principles and provide a lesson to all members of the House.

In case there is any doubt, the Court of Appeal defines these Principles as:

• A relationship of a fiduciary nature that reflects a partnership imposing the duty to act reasonably, honourably and in good faith;
• The Government should make informed decisions;
• The Crown should remedy past grievances;
• Active protection of Maori interests by the Crown
• The Crown has the right to govern
• Maori retain rangatiratanga over their resources and taonga and have all the rights and privileges of citizenship.

And if Members are still unsure, they should consult the Waitangi Tribunal which gives further clarity to the principles as:

• Partnership
• Fiduciary duties
• Reciprocity – the cession of Maori sovereignty in exchange for the protection of rangatiratanga, leading to the duty to act reasonably, honourably and in good faith;
• Mutual benefit leading to the duty to act reasonably, honourably and in good faith;
• Redress for past grievances
• Equal status of the Treaty parties;
• The Crown cannot evade its obligations by conferring its authority on another body
• Active protection of Maori interests by the Crown
• Options – the principle of choice
• The courtesy of early consultation.

And if that’s still not enough, there’s always the principles proposed by the Executive:
• The Government’s right to govern
• The right of iwi to self management of their resources
• Redress for past grievances
• Equality, all New Zealanders are equal before the law
• Reasonable cooperation by both parties

Mr Speaker, I have gone to the trouble of spelling out these legislative references and description of the Treaty principles because it appears that some members in this House are still not aware of their meaning.

The truth is, Mr Speaker, we have come a long way from 1878 in Wi Parata v Bishop of Wellington which suggested that the Treaty was a simple nullity because Maori tribes were incapable of performing the basic rights of citizenship.

We are in new enlightened times – times which reflect the strength and survival of iwi who have advanced the debate so significantly about Treaty rights.

The Maori Party is extremely proud to have brought to this debate the crucial significance of the Treaty for emissions trading.

Sir, the Treaty clause is about recognising our founding document and recognising that the Treaty is about joint responsibility and working together. The scheme also relies on regulations for much of its implementation. The Treaty clause will ensure iwi and Maori are able to participate in the development of these rules.

The amendments we put forward clarify how the rights and interests of Iwi under the Treaty of Waitangi / Te Tiriti o Waitangi are to be incorporated in this legislation.

They provide for consultation with Iwi on matters under the Act.

And they breathe life into this legislation in terms of enacting the responsibilities of the Crown to incorporate the Treaty into legislation.


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