An odious omnibus

Posted on April 12, 2011
By Dr Muriel Newman

In the same week that the Coastal Coalition took a step towards forcing greater accountability on Parliament, by initiating a Citizens Initiated Referendum to repeal the Marine and Coastal Area Act and restore public ownership of the foreshore and seabed, National was trying to change Parliament’s rules to reduce accountability! Treaty Negotiations Minister, Chris Finlayson is attempting to gerrymander the Parliamentary process to enable a raft of Treaty settlement bills to be fast-tracked into law before the November election. ¹

Not only is the whole concept of fast-tracking settlements that involve the privatisation of hundreds of millions of dollars’ worth of public assets into private tribal hands totally undemocratic, but there is grave concern that Chris Finlayson will use the new rules to ram through foreshore and seabed deals without adequate scrutiny.

During the debate over the controversial Marine and Coastal Area Bill, the Minister went to great lengths to counter the criticism that the public’s foreshore and seabed would be given away through secret deals behind closed doors. He explained that people’s fears about shoddy, back room political dealmaking would be countered by requiring customary title agreements to be passed by an Act of Parliament in a similar way to Treaty settlements. While this change did not alleviate the concern that the race-based carve up of the coast will occur through secret agreements with friendly ministers – instead of through the High Court – the requirement for an Act of Parliament did at least ensure disclosure and an opportunity for the opposition to scrutinise and debate each deal.

Yet, almost before the ink on the new Marine and Coastal Area Act is dry, National now wants to change Parliament’s rules so that the Treaty settlements, upon which the foreshore and seabed amendment was based, can be rushed through without individual scrutiny. The National Party needs to assure New Zealanders that it is not their intention to fast-track foreshore and seabed claims as well as Treaty deals.

The law change being sought by National involves altering Parliament’s Standing Orders to enable unrelated laws to be combined together into an “omnibus” bill. This would allow several Treaty settlement Bills to be passed at one time. The only way this could occur at present is if the parties in Parliament all agreed to give leave. The rules as they stand have clearly been designed to prevent the Executive from undermining democracy by combining bills and ramming them through into law without proper consultation or scrutiny. It is also important to remember that since a government is in control of Parliament’s sitting schedule, it has a range of mechanisms at its fingertips to fast-track legislation without having to resort to changing the rules.

The Members of the Standing Orders Select Committee are Jim Anderton of the Progressive Party, Rick Barker and Trevor Mallard from Labour, Green MP Kennedy Graham, Rodney Hide from ACT, Peter Dunne from United Future, Te Ururoa Flavell from the Maori Party, and Lockwood Smith, Gerry Brownlee, and Chris Tremain from National. Recommendations for changes to Parliament’s rules depend on a majority vote from Committee members. To email MPs to share you views on this and other matters, click here >>>.

The fact that National wants to rush these Treaty settlement deals through before the election, when many have been in the pipeline for years, reinforces the view that settlement deals are now more politically inspired than ever. If 23 tribes receive payouts worth almost $500 million in taxpayer funded assets ahead of the election, it doesn’t take too much imagination to guess where their Election Day loyalties may lie!

When it comes to Treaty settlements, more scrutiny is needed not less! As Mike Butler points out in his Breaking Views blog Fast-track settlements hinder scrutiny, “Closer inspection of tribunal reports and settlement deals would display to the taxpayers who are funding these settlements the Waitangi Tribunal’s slanted reasoning and insubstantial basis of numerous claims. Far from being balanced inquiries into a claim by an objective third party who has no benefit from the outcome of the inquiry, the reports stack up information on one side of the claim as evidence to justify the claim. Further scrutiny would seem helpful, and Finlayson’s fast track would prevent this.”

Treaty settlements transfer billions of dollars of public assets to private Maori tribal interests without the public really being aware of what is going on. In fact the public has never been asked whether they are happy with the privatisation to iwi of police stations, schools, state houses, Department of Conservation properties and other public treasures.

A case in point is the Ngati Porou settlement, which is one of those that Chris Finlayson wants to fast-track into law before the election. ² Worth $110 million, the settlement will progress Ngati Porou’s stated objective of self governance by 2020. The deal involves the privatisation of an extensive range of public assets – including the Ruatoria and Tokomaru Forests, the former Te Araroa Post Office, the former Whakangiangi School and School House, the Hoia Station at Hicks Bay, and the Manutahi Forest College. The tribe has the right to purchase the Ruatoria Police Station and four Police houses, the Ngata Memorial College, and 14 schools: Tolaga Bay, Hiruharama, Potaka, Kaiti, Makarika, Te Puia Springs, Hatea-a-Rangi, Waikirikiri, Wainui Beach, Whangara, Te Waiu, Ilminster, Te Wharau, and Mangatuna.

In addition, they have the first right of refusal for 170 years to purchase the Police Station and tied Houses in Tolaga Bay, Tokomaru Bay, and Te Araroa; the NZ Defence Force Sponge Bay Rifle Range; the Ministry of Justice Ruatoria Hearing Centre; the Department of Corrections Community Work Centre in Ruatoria; more than 500 State houses mostly in Hicks Bay, Tolaga Bay, Ruatoria and Kaiti; and 23 Department of Conservation properties comprising recreation reserves, scenic reserves, conservation areas and parks, and local purposes reserves.

It was the Labour Government in 1975 that passed the Treaty of Waitangi Act to establish the Waitangi Tribunal as a permanent commission of inquiry into grievances against the Crown. In 1985 the Lange Government extended its mandate back to 1840 to deal with historic claims. According to the Office of Treaty Settlements, since that time 26 claims worth around $1 billion have been settled. Another 10 tribes have settlement deals worth around $260 million awaiting legislation, and 14 tribes have agreements worth around $220 million in an advanced state of negotiation. More than 20 tribes have engaged in formal negotiations with the Crown, and many others are in the pipeline.

Both Tainui in 1995 and Ngai Tahu in 1997 negotiated ratchet clauses in their $170 million agreements that will entitle them to 17 percent of the value of all settlements that exceed $1 billion: “The relativity mechanism in the Waikato-Tainui and Ngāi Tahu Deeds of Settlement has not yet been triggered as the relativity mechanism totals all values in 1994 terms, taking account of interest and inflation since 1994. For the purposes of the relativity mechanism, a settlement of $50 million in the 2008/09 financial year is equivalent to a settlement of $24 million in 1994”.³

When asked in 2008, whether ‘buying out’ the ratchet clauses was a possibility, then Minister of Treaty Negotiations, Michael Cullen, said it was unlikely, but National Party spokesman Chris Finlayson said it out was “an option.” If the clauses haven’t been bought out or already triggered, they will be soon. That means Tainui and Ngai Tahu will receive even more taxpayer funded payouts. For Tainui that would come on top of their most recent payout – $100 million in the Waikato River settlement deal, which included $20m for the tribe’s Endowed College to provide ‘science’ to improve the river’s health and $50m to protect the tribe’s spiritual, social, cultural and economic relationship with the river. They have the first right of refusal to the Huntly Power Station and coal mining permits under the river. In addition the government will give Tainui $1m a year for 30 years to fund the ‘co-management’ partnership. A further $210m will be available as a contestable fund to clean-up the river over 30 years.⁴

The reality is that all major tribes had received full and final settlements for their historical claims from earlier governments. A report prepared in 1989 by the Justice Department’s Richard Hill provides full details.⁵ It shows, for instance that Ngai Tahu in particular had already benefited from three full and final settlements in 1906, 1944, and 1973. By including a ratchet clause in their fourth “full and final” settlement, this wealthy iwi corporation is set to gain significantly more riches in line with the government’s ever-more generous Treaty settlements. And that is not to mention their foreshore and seabed claims which will no doubt already be in the pipeline.

Dr Hugh Barr, the Secretary for the Council of the Outdoor Recreation Associations and a spokesman for the Coastal Coalition believes the government’s legislation to repeal Crown ownership of the foreshore and seabed is a massive fraud against the public, and in his article A Citizens Initiated Referendum to repeal the Marine and Coastal Area Act 2011 is now essential he explains that the first step to rescind the legislation has now been taken:

“There are so many untruths and uncertainties about National’s highly controversial Marine and Coastal Area Act that the public has been vindicated for massively opposing it. The Act claims to address the uncertain issue of Maori customary rights in 1840, something that nobody alive today has any direct knowledge of… The most important Maori customary marine rights are over customary food-gathering places. These are already recognised in legislation. Were there any other marine customary rights in 1840? Probably not. Certainly not mining, building marinas, or aquaculture that National has included for the benefit of corporate iwi.

“The Coastal Coalition is taking the first step of rescinding National’s racist Marine Act by initiating a Citizens Initiated Referendum to remove the legislation. The first step is gathering signatures from registered voters to gain a public groundswell. We expect to start collecting signatures in the very near future. Please see www.CoastalCoalition.co.nz for details and sign, and to assist us.”

Gathering 300,000 signatures to force a referendum is a huge task and we will need all the help we can get. If you are able to assist and haven’t already registered, please do so on our Coastal Coalition website. The Clerk’s office is working with us on the final question design. Once it is approved we will be ready to go. The point is that we can either passively accept the new law even though it will be disastrous for the country, or we can continue to fight for its repeal knowing that our strong opposition may help encourage others to make repeal an election issue. We hope you will join the battle!