Maori Purposes Bill (No 2) Government Bill As reported from the Maori Affairs Committee Commentary Recommendation The Maori Affairs Committee has examined the Maori Purposes Bill (No 2) and recommends that it be passed with the amendments shown. Background This omnibus bill consists of ten clauses divided into three parts comprising the following proposed amendments: • Part 1 amends the Treaty of Waitangi Act 1975 in relation to the operations of the Waitangi Tribunal. • Part 2 amends the Broadcasting Act 1989 in order to give effect to technical changes in relation to ministerial responsi- bility for Maori broadcasting policy and Te Reo Whakapuaki Irirangi, the Maori Broadcasting Funding Authority (also known as Te Mangai Paho). • Part 3 amends the Maori Land Amendment and Maori Land Claims Adjustment Act 1926 to provide for an increase in entitlement of free fishing licences to Ngati Tuwharetoa under the fishery licensing scheme for Lake Taupo. It is intended that the three parts be divided into three separate bills at the committee of the whole House stage. 205--2 2 Maori Purposes (No 2) Commentary Amendments to Treaty of Waitangi Act 1975 (Part 1) Two submissions relate to Part 1, which proposes amendments to the Treaty of Waitangi Act 1975. These submissions support the swift passage of the bill, and emphasise the need for urgency in bringing the Wellington Tenths claim (Wai 145) to a conclusion. The claim was filed with the Waitangi Tribunal in 1987, and hear- ings were held over a protracted period between 1991 and 1999. The submitters note that swift passage of the bill is essential to the validation of the status of the tribunal, which went through changes of membership after the hearings commenced. Passage of the bill would allow the release of the Wellington Tenths inquiry report, and avoid the need for the claim to be revisited by a new tribunal. One of the submitters is concerned that limits and safeguards should be placed on the circumstances under which the Chairperson of the tribunal could replace members and presiding officers of a tribunal, and that the conditions for the use of this power be clearly spelt-out in the legislation. Part 1 proposes additional clauses to the Treaty of Waitangi Act 1975 to statutorily validate changes of membership that occurred in the panels of the Wellington Tenths (Wai 145), Kaipara (Wai 674) and Hauraki (Wai 686) inquiries. The amendments proposed include the express provisions for the replacement of members and presiding officers; the appointment of acting presiding officers; and specify the circumstances and conditions required before these new statutory powers can be exercised. The bill proposes that the Chairperson of the tribunal be empowered to replace or substitute members due to illness or unforeseen circum- stances during the course of tribunal hearings, which typically last for a number of years. The move to three - or four - person tribunals also means that replacements may be necessary to maintain a quo- rum (presiding officer and two other members, one of whom must be Maori). The proposed power to appoint a replacement presiding officer or replacement member may be exercised only when: • the presiding officer or member has ceased to hold office, or • the presiding officer or member is unable to continue to par- ticipate in the inquiry due to his or her mental or physical condition, or • the Chairperson is of the opinion that it would be unreasona- ble to expect the presiding officer or member to continue to participate in the inquiry due to personal circumstances, and Commentary Maori Purposes (No 2) 3 • the Chairperson is satisfied that there is an adequate record of the inquiry that has already been heard by the tribunal, and that it is reasonable to expect the person, appointed as a replacement presiding officer or member, to review the record of that inquiry. The Act currently requires the presiding officers to be either the Chairperson, a Judge of the Maori Land Court or a barrister or solicitor of the High Court with at least seven years standing, appointed by the Chairperson. Under proposed new clause 5AD(2) of the Second Schedule, the Chairperson may exercise the power of appointing an acting presiding officer only if he or she considers that the tribunal can properly continue to exercise its functions to inquire into the particular claim or other matter with an acting presiding officer. Any person appointed an acting presiding officer would have the same powers as a presiding officer under the Act and would be able to exercise those powers only for the period of time specified by the Chairperson. The Green Party member is concerned about the appropriateness of tampering with the conditions surrounding a judicial forum such as the Waitangi Tribunal. There are significant natural justice issues that occur when tribunal members are replaced after evidence has already been heard during an inquiry. However, there is currently no provision in the Act that validates the tribunal's power to replace or substitute members during a tribunal inquiry, leaving open the possi- bility of a challenge to membership changes, which could necessi- tate having to start an inquiry over again. This would apply to the three inquiries listed above, but the implications could be more far ranging, and affect other claims, such as the Tauranga inquiry (Wai 215) and the Indigenous Flora and Fauna inquiry (Wai 262). The Treaty of Waitangi Amendment Act 1985 provided for historic claims to be lodged with the Tribunal dating to 1840, but no provi- sion was made in that Act to cater for long-term inquiries. In 1996, the Acting Registrar of the Waitangi Tribunal sought advice on the powers of the Chairperson of the tribunal to reconsti- tute tribunals where members are unable to continue in office. In response to this request, the Solicitor-General advised that if the tribunal is to have express power to permit the substitution of a presiding officer or panel members, the Act should be amended to make sure that the intention to depart from the standard principles of natural justice, to meet the needs of the tribunal process, are indi- cated in terms that are clear and unambiguous. The opinion of the 4 Maori Purposes (No 2) Commentary Crown Law Office is that there is a legitimate concern that claims be brought to a conclusion, and that the tribunal has the power to replace persons unable to continue, to ensure the efficient running of hearings. Advice we received from Te Puni KOkiri emphasises that any power to appoint a replacement member, a presiding officer, or an acting presiding officer must be limited to circumstances that require such appointment in order to enable the hearing to continue and prevent the extreme circumstance of an inquiry having to start again. We are satisfied that the bill as drafted reflects advice given to Te Puni Kokiri by the Solicitor-General and the Crown Law Office. We recommend that proposed new clause 5AD(2) of the Second Schedule be deleted from the bill, because it would not offer any protection to either the claimants or the Crown. The amendment as proposed by the committee will remove the exemption provided in proposed new clause 5AD(2) of the Second Schedule of the Act. Therefore, clause 5(2) of the Second Schedule will apply to the appointment of an acting presiding officer. Clause 5(2) of the Second Schedule provides that only a member of the tribunal who is a barrister or solicitor of the High Court of at least seven years standing, shall be qualified for appointment as presiding officer under clause 5(1)(a)(iii) of the Second Schedule. Green Party view on Part 1 The Green Party member considers that clause 5AC(2)(c) gives the Chairperson too broad a discretion. Clause 5AC(2)(c) enables the Chairperson to replace a member when he or she is of the opinion that the member or presiding officer is unable to continue due to personal circumstances. While the clause implies that the member will not be removed without their consent, there is no express protection. Te Puni K6kiri advised that the individual members were protected from unfair removal by the principles of natural justice, which would allow them to contest the decision in the High Court. The Green Party member is not satisfied with that response and is concerned that there is no requirement for the replaced officer to agree to their replacement. The Green Party member would prefer the clause be reworded to ensure the presiding officer or member being replaced due to personal reasons agrees to that course of action. Commentary Maori Purposes (No 2) 5 Amendments to the Broadcasting Act 1989 (Part 2) One submission disagrees with the transfer of responsibility for Te Mangai Paho from the Minister of Broadcasting to the Minister of Maori Affairs, due to a concern that the transfer would incur addi- tional costs to taxpayers. Te Puni K6kiri advised us that no addi- tional cost to taxpayers will result from the transfer of ministerial responsibility, which requires small technical amendments to the Broadcasting Act 1989. The majority of us have no concerns relating to this part, and recommend that it be passed unamended. National Party view on Part 2 The National Party members are opposed to these changes on the basis that Te Mangai Paho should continue to be accountable to the Minister of Broadcasting. Amendments to the Maori Land Amendment and Maori Land Claims Adjustment Act 1926 (Part 3) One submission disagrees with the increase of fishing licences on Lake Taupo for Ngati Tuwharetoa. The submitter contends that trout fishing is not a customary right and that payment for fishing licences assists in restocking the Lake Taupo fish population.