May 2013 Māori Law Review

Editorial – Judge Craig Coxhead – Māori land, unlocking the potential

This month's editorial is by Judge Craig Coxhead on unlocking the potential utilisation of Māori land.

The Ministry for Primary Industries, Manatū Ahu Matua, recently released a report entitled Growing a Productive Base of Māori Freehold Land. 1 This is one of a number of recent reports concerning the utilisation of Māori Land. 2 These reports all seek to guide and advise on how to “unlock” unrealised potential of multiply-owned Māori land. History tells us that unlocking the potential utilisation of Māori land is not easy – but it is not impossible.

Māori landowners increasingly have diverse aspirations for the utilisation of their land. These aspirations will differ according to the land itself, the owners, and those who administer the land – from large land trusts seeking to utilise the commercial potential of their land, to smaller trusts, or owners without any administrative structure, wishing to live on, farm, or forest their land, set up marae and reservations, or allow the land to remain as a conservation area. The Māori Land Court aims to assist owners where it can to realise these aspirations.

There are many successful trusts and incorporations. Within the current regime, many trusts and incorporations are realising their differing aspirations. We have land trusts worth in excess of $200 million, trusts involved in papakāinga housing projects, orchards, and farms, along with owners who seek to utilise their land by preserving the native forest growing there through rāhui arrangements. These are all success stories where Māori landowners have been able to balance the twin aims of the Te Ture Whenua Māori Act - retention and utilisation.

What is also of note is that the majority of land utilisation initiatives do not require Court endorsement or oversight. In the main, owners are free to go about caring for and utilising their land as they wish. The Court is only required to be involved where an utilisation proposal involves the disposition of interests in land.

Successful trusts and incorporations seldom come before the Court – and nor should they. Interestingly, these trusts and incorporations are succeeding within the same regulatory framework as those that fail. The various trusts and incorporations that do come before the Court for underperformance, failed investments, and financial losses have in many cases ended up there because of failures at the governance level.

A feature of the recent reports is the identification of governance as the key determinant of successful utilisation of multiply-owned Māori land. This is not surprising. The success stories we see all display good governance. Good structures, systems and processes will obviously assist, but in the end it is good people, with good skills, doing a good job that makes the difference. Good people are the key. Experience shows us that the skills and capabilities of those in governance is the key to successful enterprise on Māori land. It is not the regulatory framework that is the main barrier to success.

Unfortunately, many matters that end up as disputes and are subsequently reported in publications like the Māori Law Review inevitably have as their focus the failings of governance. The many successes of trusts that have skilled and capable governors who are utilising their land for the benefit of their owners are rarely reported in cases. That is because nothing has gone wrong. They are simply going about their business and succeeding at unlocking the potential within their land.

People taking the opportunity to comment on the current review of the Te Ture Whenua Māori Act 1993 will no doubt raise a number of the issues noted here, as well as other issues. Tom Bennion has written an interesting preliminary appraisal of these issues in the current Māori Law Review.

Notes:

  1. PricewaterhouseCoopers Growing the Productive Base of Māori Freehold Land (Ministry for Primary Industries, February 2013).
  2. Others include: Māori Agribusiness in New Zealand: A Study of the Māori Freehold Land Resource (Ministry of Agriculture and Forestry, March 2011); Ko Ngā Tumanako o Ngā Tāngata Whai Whenua Māori: Owner Aspirations Regarding the Utilisation of Māori Land (Te Puni Kōkiri, April 2011); Government planning and support for housing on Māori land: Ngā whakatakotoranga kaupapa me te tautoko a te Kāwanatanga ki te hanga whare i runga i te whenua Māori (Office of the Auditor-General, August 2011); and Housing Affordability in New Zealand (New Zealand Productivity Commission, March 2012).