April 2014 Māori Law Review

Review of Te Ture Whenua Māori Act 1993 – final report and recommendations Poutu-te-rangi (March) 2014

The panel of experts reviewing Te Ture Whenua Māori Act 1993 has released its final report and recommendations. The Government has announced that it is drafting a new Te Ture Whenua Māori bill to reform the governance and management of Māori land based on the Panel's findings.

Download the Review Panel's final report (1.3 MB PDF) and the Government's subsequent announcement about law reform.

Overview

The independent panel of experts has recommended new Māori land legislation to replace Te Ture Whenua Māori Act 1993.

The Panel has confirmed its preliminary view, raised in its 2013 discussion document, that the Māori Land Court's current role in the management and utilisation of Māori land can be scaled back in favour of greater final decision-making by those with governance roles for Māori land. Mediation has been recommended as a first step in addressing disputes.

The 2013 discussion document had suggested that decision-making over Māori land might be limited to owners who controlled a minimum threshold interest. The idea did not gain support from those who submitted on the issue and the Panel does not recommend it be pursued in addressing the issue of fragmentation of interests in land.

Decision-making about governance and use of Māori land should be by engaged owners who participate, yet safeguards should remain for disposals of Māori land in the Panel's opinion. Further, duties and responsibilities of those with governance roles should be aligned with the general law. Under-utilised land without an administrative structure might have external managers appointed as a transitional measure.

The Panel's view is that improved governance will lead to greater utilisation of Māori land and "will increase confidence within the banking and financial sector to provide development support and finance to Māori land governance entities." (At p 30.)

Background

The expert review panel was chaired by Matanuku Mahuika. The other members were Toko Kapea, Patsy Reddy, and Dion Tuuta.

The review panel released a discussion document in March 2013 where it proposed five integrated measures the Panel considered will improve the likelihood of Māori land being used more effectively.

  • Utilisation of Māori land should be able to be determined by a majority of engaged owners;
  • All Māori land should be capable of utilisation and effective administration;
  • Māori land should have effective, fit for purpose, governance;
  • There should be an enabling institutional framework to support owners of Māori land to make decisions and resolve any disputes;
  • Excessive fragmentation of Māori land should be discouraged.

The Panel conducted 20 consultation hui, and received 189 written submissions from individuals, whānau, hapū, iwi, trusts and incorporations, local authorities, law firms and others.

Discussion

Panel recommendations

The report summarises submissions and explains shifts in emphasis from the Panel's March 2013 discussion paper as a result of the submissions process in relation to each of its key propositions.

In particular, the Panel stressed that its approach was to consider principled bases for Māori land legislation rather than detailed amendments to existing legislation. The Panel's view is that giving effect to its recommendations will require new legislation:

The structure of Te Ture Whenua Māori Act, with a primary focus on the Māori Land Court and its jurisdiction, does not lend itself well to a new framework in which we consider the focus should very clearly be on Māori land protection and utilisation and empowerment of Māori land owners and their decision-making.

The Panel's final recommendations on each proposition are set out below.

Proposition 1: Utilisation of Māori land should be able to be determined by a majority of engaged owners

We recommend that reforms to the laws relating to Māori land include provisions to give effect to Proposition 1

The laws relating to Māori land should:

• be changed and clarified to enable engaged owners of Māori land to make governance and utilisation decisions that take effect and bind relevant parties without the need for confirmation, approval or other action by the Māori Land Court or any other supervisory body; and

• continue to include safeguards requiring a high threshold of owner agreement before decisions to dispose of Māori land will have legal and binding effect.

Proposition 2: All Māori land should be capable of utilisation and effective administration

We recommend that reforms to the laws relating to Māori land include provisions to facilitate Proposition 2

The laws relating to Māori land should:

• provide clear mechanisms for external managers to be appointed to administer under-utilised Māori land blocks when there is no engagement by the owners.

Proposition 3: Māori land should have effective, fit for purpose, governance

We recommend that reforms to the laws relating to Māori land include provisions to give effect to Proposition 3

The laws relating to Māori land should:

• clearly prescribe the duties and obligations of Māori land governance entities, including their trustees, directors or committee members, and aligns those duties and obligations with the general law applying to similar entities; and

• clarify the jurisdiction of the Māori Land Court to consider alleged breaches of duty and make appropriate orders.

Proposition 4: There should be an enabling institutional framework to support owners of Māori land to make decisions and resolve any disputes

We recommend that reforms to the laws relating to Māori land include provisions to give effect to Proposition 4

The laws relating to Māori land should:

• require disputes relating to Māori land to be referred, in the first instance, to mediation; and

• contain clear and straightforward provisions and rules to ensure the Māori Land Court remains an accessible judicial forum for resolving disputes that cannot be resolved by mediation and enabling trustees, directors and committee members of governance entities to be held to account for breaches of duty.

Proposition 5: Excessive fragmentation of Māori land should be discouraged

We recommend that reforms to the laws relating to Māori land include provisions to facilitate Proposition 5 but the rights of decision-making should remain open to all owners

The laws relating to Māori land should:

• provide transparent registration provisions for Māori land titles and assurance of title to reflect the nature of Māori land tenure as a collectively held taonga tuku iho;

• contain provisions that facilitate succession to Māori land with a minimum of compliance requirements and simple, straightforward administrative, rather than judicial, processes; and

• contain provisions to address barriers caused by excessive fragmentation of Māori land ownership interests.

Law reform proposals

The Government has announced that it is drafting a new Te Ture Whenua Māori bill to reform the governance and management of Māori land based on the Panel's findings. This was announced on 3 April 2014 by Associate Minister of Māori Affairs Christopher Finlayson at the same time as the Panel's final report was released.

The Minister announced that key features of the bill will include:

  • allowing engaged owners to make governance and utilisation decisions without needing approval by the Māori Land Court;
  • continued safeguards to support the retention of Māori land;
  • provisions allowing for external managers to administer under-utilised blocks pending owner engagement;
  • a clearer framework for Māori land governance entities such as trusts and incorporations;
  • greater emphasis on mediation;
  • the Māori Land Court remaining an accessible forum for Māori land issues but with fewer matters needing Court involvement; and
  • options for dealing with fragmentation.

In contextualising these proposals for law reform, the Minister's announcement reproduced some important statistics about Māori land and its utilisation:

There are over 27,137 blocks of Māori land under Te Ture Whenua Māori Act, comprising 1.42 million hectares, or around 5% of the total land in New Zealand.

It has been estimated that up to 80% of Māori land is under-performing for its owners. In many cases this is because of structural issues which stem from the existing legislation.

Improving the performance and productivity of Māori land would provide tremendous economic and cultural benefits to its owners and their whānau, hapū and iwi.

A study prepared for the Ministry of Primary Industries suggested the benefits of improving governance and management of Maori land could be huge, increasing output by up to $8 billion and creating up to 3600 jobs over a decade.

Finally, the Minister also stated:

Māori land is a resource that contributes significantly to the cultural identity and well-being of Māori land owners,” Mr Finlayson said. “I look forward to progressing legislation that will allow this potential to be realised.

The Minister for Land Information and I are developing proposals for implementing the changes so that services to support Māori land owners and assure the integrity of the Māori land title system will be in place and aligned with the new legislation.

Note

Here is a link to the 2014 Government announcement of proposed law reform.

Tom Bennion wrote about the Panel's 2013 discussion document ((2013) May Māori LR). The Māori Law Review will publish further articles about the Panel's final recommendations and resulting law reform in future issues.