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 responsibility 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 hearings 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 circumstances 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 participate 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 provision 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 additional costs to taxpayers. Te Puni K6kiri advised us that no additional 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.

It is not intended that fishing for imported fish by Ngati Tuwharetoa be regarded as the exercise of a customary right, but rather that it is the extension of an existing statutory right that the iwi has in terms of the existing Maori Land Amendment and Maori Land Claims Adjustment Act 1926. The Act vested the ownership of Lake Taupo in the Crown, and (amongst other things) provides Ngati Tuwharetoa with a statutory right to an annual payment, and reserves to the iwi the exclusive right to fish, and catch for their own use, indigenous fish in Taupo waters. The number of licences has not been adjusted since 1926, while the number of general fishing licences has increased substantially. In addition, the indigenous fish population within Lake Taupo waters has diminished.

The committee considers that the increase is well overdue. An accurate record of licence sales for Lake Taupo was first kept in the 1930/31 season. Between 1930/31 and 2001/02, the number of general fishing licences sold by government departments has increased by 1515 percent, while the entitlement for Ngati 6 Maori Purposes (No 2) Commentary

Tuwharetoa has remained unchanged since the passing of the 1926 Act. We recommend that this part be passed unamended.

Hon Georgina te Heuheu has declared an interest and the National Party members reserve their position on Part 3.

Appendix

Committee process

The Maori Purposes Bill (No 2) was referred to the committee on 10 September 2002. The closing date for submissions was 25 Octo- ber 2002. We received and considered 3 submissions from interested groups and individuals. We heard 2 submissions. Hearing of evidence took 36 minutes and consideration took 2 hours 48 minutes.

We received advice from Ministry of Maori Development (Te Puni K6kiri).

Committee membership

Mahara Okeroa (Chairperson)

Hon Georgina te Heuheu (Deputy Chairperson)

Bill Gudgeon

Hon Murray McCully

Mita Ririnui

Metiria Turei

Hon Tariana Turia Maori Purposes (No 2)

Key to symbols used in reprinted bill

As reported from a select committee

Struck out (unanimous) 1 1 Subject to this Act, Text struck out unanimously Hon Parekura Horomia

Maori Purposes Bill (No 2)

Government Bill

Contents

1 Title 5AE Conditions applying to 2 Commencement appointment of acting presiding omcer Part 1

Treaty of Waitangi Act 1975 Part 2

3 Treaty of Waitangi Act 1975 called Broadcasting Act 1989 principal Act in this Part 6 Broadcasting Act 1989 called prin- 4 Validation in respect of certain cipal Act in this Part inquiries 7 Membership of Te Reo 5 Second Schedule amended Whakapuaki Ibrangi 5AA Chairperson may appoint 8 Te Reo Whakapuaki Irirangi to replacement presiding officer have regard to Government policy 5AB Chairperson may appoint Part 3 replacement member Maori Land Amendment and 5AC Conditions applying to Maori Land Claims Adjustment Act 1926 replacement appointments 5AD Chairperson may appoint act- 9 Maori Land Amendment and Maori ing presiding officer L.and Claims Adjustment Act 1926 10 Bed of Lake Taupo vested in Crown

The Parliament of New Zealand enacts as follows:

1 Title

This Act is the Maori Purposes Act (No 2) 2002.

2 Commencement This Act comes into force on the day after the date on which it receives the Royal assent. 5

Part 1 Treaty of Waitangi Act 1975

3 Treaty of Waitangi Act 1975 called principal Act in this Part In this Part, the Treaty of Waitangi Act 19751 is called "the 10 principal Act".

11975 No 114

205--2 Part 1 cl 4 Maori Purposes (No 2)

4 Validation in respect of certain inquiries The Tribunal is deemed to be, and to have always been, constituted in accordance with the principal Act for the pur- pose of inquiring into, and making recommendations on, the claims heard in the following inquiries: 5 (a) the Hauraki inquiry (Wai 686): (b) the Kaipara inquiry (Wai 674): (c) the Wellington Tenths inquiry (Wai 145).

5 Second Schedule amended The Second Schedule of the principal Act is amended by 10 inserting, after clause 5, the following clauses:

"5AA Chairperson may appoint replacement presiding officer "(1) For the purposes of an inquiry into a particular claim or other matter under section 5(1), the Chairperson may appoint another member of the Tribunal or a Judge of the Maori Land 15 Court to replace a presiding officer or former presiding officer holding office under clause 5(1)(a).

"(2) Clause 5(2) and (3) applies to a replacement appointment under subclause (1).

"5AB Chairperson may appoint replacement member 20 For the purposes of an inquiry into a particular claim or other matter under section 5(1), the Chairperson may appoint another member of the Tribunal to replace a member or former member holding office under clause 5(1)(b).

"5AC Conditions applying to replacement appointments 25 " (1) An appointment made under clause 5AA or clause 5AB may be made before or after the Tribunal has begun to inquire into a particular claim or other matter under section 5(1). "(2) The power conferred on the Chairperson by clauses 5AA and SAB may be exercised only if- 30 "(a) the presiding officer or member holding office under clause 5(1) has ceased to hold office- "(i) as provided for in clause 2; or "(ii) in the case of a Judge of the Maori Land Court, as provided for in section 12 of Te Ture Whenua 35 Maori Act 1993: "(b) the personal circumstances of the presiding officer or member holding office under clause 5(1) make that

2 Maori Purposes (No 2) Part 1 cl 5

person unable by reason of his or her physical or mental condition to continue to participate in the inquiry into the particular claim or other matter: "(c) in the opinion of the Chairperson it would be unreason- able to expect the presiding officer or member holding 5 office under clause 5(1) to continue to participate in the inquiry into the particular claim or other matter because of his or her personal circumstances.

"(3) If the Tribunal has commenced its inquiry into the particular claim or other matter, the Chairperson must not exercise the 10 power conferred by clause 5AA or clause SAB unless- "(a) there is an adequate record of the inquiry that has already been heard by the Tribunal; and "(b) it is reasonable to expect the person appointed to the Tribunal under clause 5AA or clause 5AB to review the 15 record of that inquiry.

"(4) For the avoidance of doubt, the power conferred by clauses 5AA and 5AB may be exercised even if the relevant circumstance under subclause (2) arose before the commencement of the Maori Purposes Bill (No 2) 2002. 20

'SAD Chairperson may appoint acting presiding officer "(1) The Chairperson may appoint an acting presiding officer if the presiding officer appointed under clause 5(1)(a) for the purposes of the particular claim or other matter under section 5(1) is temporarily unable to be present for the whole or part of a 25 sitting because of- "(a) his or her illness; or "(b) unforeseen circumstances that prevent his or her attendance.

Struck out (unanimous)

"(2) Clause 5(2) does not apply to an appointment under this 30 clause.

"(3) In making an appointment under this clause, the Chairperson must fix and state the period for which the acting presiding officer is appointed.

3 Part 1 cl 5 Maori Purposes (No 2)

"5AE Conditions applying to appointment of acting presiding officer "(1) The power conferred on the Chairperson by clause 5AD may be exercised only if, in the opinion of the Chairperson, the Tribu- nal can, with an acting presiding officer, properly continue to 5 exercise its functions to inquire into the particular claim or other matter.

"(2) A person appointed to be an acting presiding officer under clause 5AD has, while that person is the acting presiding officer, the powers of a presiding officer under this Act." 10

Part 2 Broadcasting Act 1989

6 Broadcasting Act 1989 called principal Act in this Part In this Part, the Broadcasting Act 19892 is called "the princi- 15 pal Act".

3 1989 No 25

7 Membership of Te Reo Whakapuaki Irirangi Section 53I of the principal Act is amended by omitting the words ", after consultation with the Minister of Maori Affairs,".

8 Te Reo Whakapuaki Irirangi to have regard to 20 Government policy (1) Section 53S(1) of the principal Act is amended by omitting the words "jointly by the Minister and the Minister of Maori Affairs", and substituting the words "by the Minister". (2) Section 53S(2) of the principal Act is amended by omitting 25 the words "and the Minister of Maori Affairs".

(3) Section 53S(3) of the principal Act is amended by omitting the words "and the Minister of Maori Affairs, acting jointly,".

4 Maori Purposes (No 2) Part 3 cl 10

Part 3 Maori Land Amendment and Maori Land Claims Adjustment Act 1926

9 Maori Land Amendment and Maori Land Claims Adjustment Act 1926 5 In this Part, the Maori Land Amendment and Maori Land Claims Adjustment Act 19263 is called "the principal Act".

3 1926 No 64

10 Bed of Lake Taupo vested in Crown The proviso to section 14(9)(c) of the principal Act is amended by omitting the expression "50", and substituting 10 the expression "200".

Legislative history

13 March 2002 Introduction (Bill 205-1)

10 September 2002 First reading and referral to Maori Affairs Committee

Wellington. New Zealand: Published under the authority of the House of Representauves--2003 205bar2.pag 28-FEB-03 Price code: 1