May 2015 Māori Law Review

Review of Te Ture Whenua Māori Act 1993 – exposure draft Bill and consultation – Haratua 2015

The Government has released an exposure draft Te Ture Whenua Māori Bill in order to engage in consultation on its proposed reforms to the law relating to Māori land.

Download the exposure draft Te Ture Whenua Māori Bill  (Haratua 2015) and the Government's consultation proposals about the law reform.

Overview

The Government has released an exposure draft Te Ture Whenua Māori Bill and has engaged in consultation with the public on its proposed reforms to the law relating to Māori land.

Background

An independent panel of experts earlier recommended new Māori land legislation to replace Te Ture Whenua Māori Act 1993. The Panel considered 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. The Panel's recommendation was that decision-making about governance and use of Māori land should be by engaged owners. Safeguards should remain for disposals of Māori land. Further, duties and responsibilities of those with governance roles should be aligned with the general law.

The Government subsequently considered the Panel's views and developed more detailed proposals.

In February 2015 the Minister for Māori Development appointed an external advisory group to help to progress law reform of the governance and management of Māori land.

See (2015) March Māori LR, (2014) April Māori LR and (2013) May Māori LR for further background information about this law reform process.

Discussion

Policy and objectives

The law reform proposals continue to stress the balancing of goals to use and develop Māori land safeguarding the retention of Māori land given its significance as a taonga tuku iho (precious treasure handed down). These objectives are supported by the following core policy settings:

The proposed changes will:

  • Support and promote the retention and use of Māori land by its owners;
  • Empower Māori land owners to pursue their aspirations for the sustainable development of their land;
  • Enable Māori land owners to make decisions without needing Māori Land Court approval and encourage owner participation;
  • Respect the intrinsic cultural significance of Māori land; and
  • Provide an effective alternative to litigation to resolve disputes.

Consultation

A programme of public consultation, including 23 consultation hui (meetings) will be held in June.

Details of these meetings are available here.

A consultation document describes the reform proposals.

Submissions in response to the consultation proposals were due by 3 July 2015 but this date has been extended to 10 am on 7 August 2015.

Major elements of the exposure draft Bill

The following information is copied from the explanatory note provided at the front of the exposure draft of the Bill:

Clause by clause analysis

Clause 1 states the title of the Bill.

Clause 2 specifies the commencement date of the Bill.

Part 1 (Preliminary provisions: clauses 3 to 11)—

  • specifies the aronga/purpose and principles of the Parts that are to become Te Ture Whenua Māori Bill:
  • defines and explains terms used in the Parts that are to become Te Ture Whenua Māori Bill:
  • provides for tikanga Māori to be determined by evidence in proceedings.

Part 2 (Whenua Māori/Māori land and whenua tāpui: clauses 12 to 38)—

  • defines Māori customary land and Māori freehold land (together, Māori land):
  • prohibits the disposition of Māori customary land and restricts the disposition of Māori freehold land:
  • empowers the Māori Land Court (the court) to determine whether land is Māori customary land or Māori freehold land:
  • provides for how land becomes or ceases to be Māori freehold land:
  • allows whenua tāpui to be reserved over private land (which includes all Māori land), Crown land, or other specified land for certain purposes and for the common use and benefit of certain beneficiaries.

Part 3 (Ownership interests in Māori freehold land: clauses 39 to 75)—

  • specifies the rights of beneficial owners (owners) of Māori freehold land:
  • allows the owners of Māori freehold land to convert to collective ownership:
  • specifies how the owners of Māori freehold land make decisions (Schedule 2 sets out a default decision-making process for decisions requiring agreement of owners of Māori freehold land):
  • provides for whānau trusts to hold owners’ beneficial interests in Māori freehold land for the benefit of certain whānau members:
  • provides for the appointment of kaiwhakamarumaru to manage the property (including Māori freehold land) of persons needing protection.

Part 4 (Dispositions of Māori freehold land and other land: clauses 76 to 133)—

  • restricts the disposition of a parcel of Māori freehold land by sale, exchange, or gift or by an action under another enactment:
  • allows a parcel of Māori freehold land to—
    • have its boundary with another parcel adjusted:
    • be partitioned into new parcels:
    • be amalgamated with other parcels into a new parcel:
    • have its beneficial ownership aggregated with, or separated from, that of other parcels:
  • restricts the grant or variation of the following lesser interests over a parcel of Māori freehold land: a lease, licence, profit à prendre, mortgage, charge, or easement:
  • allows an occupation lease or licence to be granted over a parcel of Māori freehold land:
  • allows a kawenata tiaki whenua to be created over a parcel of Māori freehold land to preserve and protect certain places:
  • restricts the disposition of owners’ individual freehold interests in Māori freehold land to certain sales or gifts, exchanges, mortgages, or charges:
  • provides for the court to make orders of confirmation for the dispositions that require them.

Part 5 (Authority to act in relation to Māori freehold land) has 3 subparts.

Subpart 1 (clauses 134 to 146) allows for the court to appoint an administrative kaiwhakarite to act on behalf of the owners of Māori freehold land for particular purposes. The purposes are set out in clauses 134(1)(a) and 135.

Subpart 2 (clauses 147 to 160) allows for the chief executive to appoint a managing kaiwhakarite to manage Māori freehold land on behalf of its owners in particular circumstances. The circumstances are set out in clause 151. Clause 153 sets out what happens to any income generated from the land by the managing kaiwhakarite.

Subpart 3 (clauses 161 to 189) allows for the owners of certain Māori freehold land to appoint a governance body to manage the land on their behalf. Clause 161(3) specifies the entities eligible to be appointed as a governance body and clause 164 sets out the appointment process. The relationship between a governance body and owners of Māori freehold land is established by a governance agreement. Schedule 3 sets out the requirements for governance agreements. Clause 163 sets out the rights of owners in respect of Māori freehold and other assets managed on their behalf by a governance body. Existing Māori incorporations, ahu whenua trusts, and whenua tōpū trusts will transition to the new regime as set out in Schedule 1.

Part 6 (Operation of governance bodies: clauses 190 to 226) covers—

  • the powers, duties, and responsibilities of governance bodies and their kaitiaki (those occupying a position in the body that is comparable with that of a director of a company) (clauses 190 and 191):
  • the vesting of an asset base in a governance body on registration of a governance agreement (clauses 193 to 197):
  • how governance bodies can change holdings of Māori freehold land managed under a governance agreement (clauses 198 to 203):
  • the application of revenues earned by a governance body (clauses 204 to 206):
  • the distribution of all or part of an asset base to the owners of Māori freehold land, if the governance body will no longer manage the land on the owners’ behalf (clauses 207 to 211).

Part 7 (Administration of estates: clauses 227 to 244)—

  • provides for how beneficial interests in Māori freehold land are distributed when an owner dies without a will:
  • provides for how beneficial interests in Māori freehold land that are gifted by will become vested in the beneficiaries of the gift.

Part 8 (Registers, jurisdiction about land, giving notices, and other provisions: clauses 246 to 287) has miscellaneous provisions that—

  • require certain documents to be provided to the chief executive or the Registrar-General of Land:
  • provide for the chief executive to keep a Māori land register that records matters relating to Māori freehold land and other land, such as beneficial interests in land and information about governance bodies that manage land. Schedule 4 specifies the information that must be kept on the Māori land register:
  • provide for matters relating to the register kept by the Registrar-General of Land under the Land Transfer Act 1952:
  • prevent Māori freehold land from vesting in the Crown when it has no owner:
  • give the court jurisdiction in certain land matters:
  • generally prevent a judgment against a debtor from being enforced against Māori land:
  • specify how notices are to be given:
  • allow regulations to be made.

Part 9 (Dispute resolution: clauses 288 to 302)—

  • assists Māori land owners and other parties to quickly and effectively resolve disputes about Māori land in a way that is consistent with the concept of mātauranga takawaenga:
  • requires the chief executive to provide a dispute resolution service conducted by a kaitakawaenga:
  • enables the court to refer a dispute for resolution under this Part:
  • requires litigation parties to refer certain kinds of disputes (other than disputes over points of law) for resolution under this Part before the court will hear the dispute, including disputes over the ownership or possession of any Māori freehold land.

Part 10 (Repeals, revocations, and consequential amendments: clauses 303 to 305)—

  • repeals and revokes certain enactments:
  • amends certain enactments as a consequence of other provisions.

Part 11 (Preliminary provisions: clauses 306 and 307) contains preliminary provisions for the purposes of the Parts that are to become Te Kooti Whenua Māori Bill.

Part 12 (Māori Land Court: clauses 308 to 345)—

  • continues the court in its present form and largely with its present jurisdiction:
  • carries over the court’s jurisdiction under the Maori Fisheries Act 2004 and Maori Commercial Aquaculture Claims Settlement Act 2004.

Part 13 (Māori Appellate Court: clauses 346 to 363) continues the Māori Appellate Court in its present form and largely with its present jurisdiction. The Judges of the Māori Land Court for the time being are the Judges of the Māori Appellate Court.

Part 14 (Provisions applying to both courts: clauses 364 to 393) sets out provisions that apply to both courts, including provisions relating to—

  • judicial conferences and directions:
  • the use of te reo Māori:
  • the representation of parties:
  • stating cases for the High Court:
  • the jurisdiction to issue injunctions:
  • costs orders:
  • the enforcement of judgments and orders:
  • the appointment of receivers.

Part 15 (Appointment of Judges and related provisions: clauses 394 to 406) carries over provisions relating to the appointment of Judges of the court. The existing provisions have been updated to reflect proposed amendments contained in the Judicature Modernisation Bill, including—

  • a requirement to publish the process for appointments:
  • restrictions on undertaking other employment or holding other offices:
  • a requirement for a protocol relating to the activities of Judges.

Part 16 (Rules, regulations, judgments, restricting right to commence proceedings, etc: clauses 407 to 422) carries over provisions relating to the Rules Committee and the rules of court. The existing provisions have been updated to reflect proposed amendments contained in the Judicature Modernisation Bill that relate to meritless litigation.

Note

Information provided by Te Puni Kokiri sets out the proposals for consultation and the timetable. Submisssions on the proposal for consultation were due by 3 July 2015 but this date has been extended to 10 am on 7 August 2015.

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