February 2016 Māori Law Review
Sir Edward Taihakurei Durie student essay competition 2015 – Not one more acre: opportunity and compromise in Te Ture Whenua Māori Reform
Sir Edward Taihakurei Durie student essay competition 2015
Not One More Acre: Opportunity and Compromise in te Ture Whenua Māori Reform
The Māori Law Review is pleased to publish Monique van Alphen Fyfe's prize winning essay about reform of Te Ture Whenua Māori Act 1993 (the Māori Land Act 1993).
Foreword by Carwyn Jones, Māori Law Review co-editor
The winning entry for the 2015 Sir Edward Taihakurei Durie Student Essay Competition is ‘Not One More Acre: Opportunity and Compromise in Te Ture Whenua Māori Reform’ written by Victoria University law student, Monique van Alphen Fyfe. The competition is sponsored by the Māori Law Review and asks students to write on a topic they consider represents the most important legal development affecting Māori that occurred during the previous year. We are very pleased to publish Ms van Alphen Fyfe’s essay in this edition of the Māori Law Review.
It is certainly no exaggeration to say that the reform of Te Ture Whenua Māori Act 1993 is an important legal development affecting Māori. The Act is of course central to the administration and management of Māori land and the process of reviewing this piece of legislation has generated significant discussion. Following the release of an exposure draft of the proposed Te Ture Whenua Māori Bill at the end of May 2015, numerous submissions have been made, an urgently convened Waitangi Tribunal hearing on the reforms has been held, and, earlier this year, a revised draft Bill was released.
There have been some important changes to the Bill since the first exposure draft was released. Many of these changes respond to key concerns that have be raised by submitters. For example, the Bill originally proposed the creation of kaiwhakarite who could be appointed by the Māori Land Court to manage Māori land over which there was no established governance body. This proved to be one of the more controversial aspects of the Bill and these provisions have been substantially changed. The concept of a managing kaiwhakarite has been removed. The principles and purpose sections of the Bill also underwent significant changes in response to feedback and the updated draft Bill now retains many of the elements of the purpose and principles of the current Act. There have also been notable changes to the proposed reforms in relation to succession. In particular, under the updated draft Bill, whānau will have the option for individuals to obtain succession to land instead of having to form a whānau trust when an owner dies intestate, as would have been required under the original exposure draft.
It is evident that developments are occurring relatively quickly as this reform process progresses. Ms van Alphen Fyfe’s essay was originally written before the Waitangi Tribunal hearing and before the release of the updated draft Bill. Although her essay necessarily focuses on key provisions as they were in the original exposure Bill, this provides an illuminating record of this stage of the Bill’s development.
Whatungarongaro te tangata, toitū te whenua
“Māori land is a taonga”. So opens the discussion document of the Te Ture Whenua Māori Act Review Panel. This taonga now comprises only 6 per cent of the total land area of Aotearoa, its scarcity and fragmentation amplifying both its importance and the care needed in the development of applicable legislation. Māori land has been subject to legislative and judicial intervention since 1865. The enactment of Te Ture Whenua Māori Act 1993 (the Act) – described as a watershed moment based on broad consensus – marked a turning point in that Māori views and desires were, to some degree, incorporated into the legislative framework. The Act has been subject to multiple amendments since its inception responding to various criticisms and seeking to better address the circumstances it governs.
A comprehensive review was announced in 2012 to unlock the “economic potential of Māori land for its beneficiaries, while preserving its cultural significance for future generations”. Rather than tweaking existing legislation as had been done in the past, the review began the process of a complete re-write of the current Act, first circulated in May 2015 as the Te Ture Whenua Māori Bill Exposure Draft (the Exposure Bill). Various iterations have been released and, following the reception of feedback on the initial text and an urgent Waitangi Tribunal hearing, an amended consultation version was publicised in February 2016 (the Draft Bill).
The precise detail of the reform proposals continues to develop at pace, and an essay of considerable length would be necessary to do more than skim the surface of a full inventory of the reform’s effects. What follows thus focuses on the content of the Exposure Bill with brief comparisons to the current Draft Bill, exploring some broad themes and highlighting selected issues arising from what is the most significant legal development affecting Māori in 2015.
The Act, the Bills, Key Themes and Implications
[Māori land] provides us with a sense of identity, belonging and continuity. It is proof of our continued existence not only as a people but as the tangata whenua of this country. It is proof of our tribal heritage and kinship ties. Maori land represents turangawaewae.
Legal academics have noted that because of its immense symbolic importance, there should be no further land lost and, accordingly, one of the main objectives of the law ought to be to ensure retention of Māori freehold land in Māori hands. It is also a valuable resource and ought to provide support for Māori people. These two imperatives, forming what Richard Boast and others have called a “double kaupapa”, are reflected in the Act and also appear in the proposed reform.
The reforms present both opportunity and compromise for owners of Māori land. It is not clear whether the stated aims of the reform will be met, particularly those of improving uneconomic land, increasing owner engagement and implementing effective management structures. It is also not clear whether the proposals will achieve the broader aims of Māori – to improve Māori autonomy, ensure retention and enhance employment of tikanga within the Māori land context. In endeavouring to answer these questions, three aspects of the reforms will be examined: purpose, governance and judicial versus executive power.
The purpose of the existing Act is to promote retention and facilitate occupation, development, and utilisation for the benefit of its owners, whanau and hapū. The Exposure Bill sought to empower and assist owners to retain land for what they determine is its optimum utilisation. Although broadly similar to the Act, the Exposure Bill’s purpose represents a refocus on commercial uses over other uses and contains further subtle differences.
The first difference to be noted is the absence of key terms from the Exposure Bill’s purpose. The removal of “occupation” shifts the emphasis of the entire Exposure Bill and arguably removes some autonomy of choice in terms of how to manage Māori land most effectively. The shift is illustrated, for example, by provisions regarding rights of spouses of deceased owners: under the Act they have a life interest but under the Exposure Bill it would become “income or discretionary grants” with no right of occupation. Another related difference is the Exposure Bill’s lack of reference to the relationship with and importance of land to whānau and hapū as seen in the Act. This is a fundamental connection; its exclusion unexpected. These concerns have been largely mollified by the Draft Bill, which replicates much of the language contained in the purpose provisions of the Act.
The second difference is the treatment of the Treaty of Waitangi. In the Act, the Treaty is referenced in the preamble and is reinforced by s 2(1) that requires any exercise of power under the Act to best further the preamble. The Exposure Bill, however, provided two-tier objectives – the purpose in cl 3 and principles in cl 4. An exercise of power under the Exposure Bill was required to achieve the purpose, but only required to recognise the principles. The Treaty of Waitangi is mentioned only in cl 4, and was thus relegated to a second-tier concern, potentially undermining its relevance to decision-making.
The Draft Bill collapses the purpose and principle provisions into one clause. However, the Treaty is still considered a principle and the clause preserves the Exposure Bill's distinction between achieving the purpose and recognising principles. The Treaty remains a second-tier concern. In legislation touching directly on a key and contentious Treaty issue, this is difficult to justify.
B Governance Structures
Entities authorised to act in relation to Māori land are also substantially modified. The Exposure Bill introduced kaiwhakarite, effectively replacing agents under the Act. Administrative and managing kaiwhakarite would be appointed (by the Māori Land Court in consultation with owners and the Chief Executive without consultation respectively) to look after land for a period of seven years where no governance body is in place. The latter was particularly concerning in that it undermined the rights of owners for a lengthy period, and it is appropriate that the Draft Bill has removed managing kaiwhakarite altogether. Administrative kaiwhakarite remain under the banner of kaiwhakahaere.
Governance bodies – rangatōpū, existing statutory bodies, or representative entities – will hold land on trust for owners, and must manage the land in accordance with a governance agreement. The Exposure Bill contains 173 provisions relating to the process of creating governance bodies, setting out strict requirements in some detail; the Draft Bill sees little improvement on this front. Despite extensive procedural provisions, however, the substantive structure of these entities and the content of the agreements are much more flexible than under the Act, allowing greater freedom in the shape and direction of ownership models. The ability to structure governance bodies independent of Government can help to ensure a cultural match between traditional and contemporary governance structures. Harvard studies show that Native American governance entities are more successful when matched to the cultural structures of their members, something Sir Eddie Durie notes ought to be afforded to Māori for the realisation of traditional modes of interpersonal and land relations. The Draft Bill’s potential to create better alignment with tikanga Māori is significant.
Despite this potential, there are problems with describing the reforms as promoting autonomy and tikanga. First, it is undermined by certain definitions that do not reflect tikanga. For example, in the Exposure Bill the definition of “immediate family” – to whom certain rights in whānau trusts will be afforded – did not coincide with whakapapa. This is seen again in “eligible beneficiary”, which is defined narrowly and not in accordance with tikanga. Further, the possibility for autonomy of choice in ownership structures was deflated somewhat by the Exposure Bill’s compulsory creation of a whānau trust where a Māori owner dies intestate. As the provisions are not replicated in the Administration Act 1959, this created a two-tier system of property rights as between Māori and non-Māori landowners – Māori could not do with their own land what Pākehā can with theirs in this particular instance. The Draft Bill retains the whānau trust as the default mechanism on intestacy, but allows for two additional options should any of the beneficiaries object. These options are narrow, prescribed and require Court or Executive action, retaining something of the two-tiered system of property rights evident in the Exposure Bill.
Improving the ability to make decisions to best utilise land is a key part of the reform. In the Exposure and Draft Bills, this is achieved inter alia by allowing “participating owners” to make decisions that bind all co-owners if they follow certain procedures. The process of alienation provides an illustration. Generally, under the Act alienation requires the approval of 75 per cent of owners or share equivalent, and confirmation by the Māori Land Court which considers both procedural and substantive matters. The Exposure Bill requires the same percentage, but only of participating owners. Should the quorum for adopting a decision not be met in the first instance, a second attempt may be made, this time only requiring a simple majority of participating owners to approve alienation. The decision would no longer require Māori Land Court confirmation for anything other than compliance with statutory procedure. Further, governing bodies may apply to have the land converted to general freehold should there be no reasonable prospect of agreement. These concerns have not been substantially modified in the Draft Bill. These provisions allow a smaller quorum to make decisions and will naturally make decisions, and thus utilisation, easier. Yet, the Judges of the Māori Land Court point out the injustice of determining a binding outcome for all owners based on the agreement of a few, stating that “[t]he extreme injustice of [such an] outcome should be obvious to all.” Should improved utilisation come at the cost of such a basic principle of justice?
There is a counterpoint to this view. The New Zealand Māori Council noted in its submission on the Review Panel Discussion Document that tikanga and the principle of ahi ka suggest that land use should be decided by engaged owners, rather than absentees. Thus, while these provisions appear to undermine property rights and may in practice increase the likelihood of alienation against the kaupapa of retention, they also align more closely with customary practices of managing land.
Complicating this further are two matters. Firstly, provisions within both the Exposure and Draft Bills add considerable detail to the procedural aspects of sale, introducing components such as preferred recipients and preferential tenders. These components will not only increase compliance costs, but also place limits on the spectrum of choices available to owners regarding alienation. Secondly, the underlying problem of owner disengagement is itself not addressed. No provisions appear to be directed at encouraging engagement; rather they seek to achieve optimal utilisation by circumventing those owners who are not engaged. The reforms may offer flexibility for the form governance structures and align more closely with tikanga, but they actively limit alienation options available to owners and do nothing to encourage engagement.
C Judicial or Executive Oversight
Aspects of the Exposure Bill, as Te Hunga Roia Māori o Aotearoa noted, appear “eerily similar to past failed policies”. The shifting of an “extraordinary” amount of power to the Executive came in for particular criticism as a model considered similar to that of the “bad old days” of the Māori Trustee and the Māori Land Board. The jurisdiction of the Māori Land Court was substantially reduced from its current role of examining the merits of land transactions to one of primarily procedural checks. Some might welcome this part of the reforms as a tool to reduce vexatious and trivial claims and increase the use of internal or private dispute resolution, but problems remain.
The Exposure Draft transferred much of the administrative and some adjudicatory functions of the Māori Land Court to the Chief Executive of the government department responsible for administering the legislation. The Chief Executive would adjudicate over a broad range of matters, such as determining compliance with the Bill, succession issues, and dispute resolution. Disputes that were subject to compulsory court action under the Act would instead be resolved with compulsory alternative dispute resolution processes, a mix of mediation, negotiation and arbitration.
Compulsion is a key problem under the Exposure Draft in that it conflicts with Māori autonomy and the ability to incorporate tikanga into dispute resolution. The Māori Land Court itself has long advocated for greater use of alternative dispute resolution options. However, compulsory dispute resolution at the expense of access to courts cannot be reconciled with the aim of more autonomy; it reduces rather than expands choices available.
Under the Exposure Bill, many of the issues decided by the Chief Executive or in alternative dispute resolution would involve questions of law, which the Māori Land Court would be better placed to address. If dispute resolution failed, discretion was left with the Chief Executive to determine whether the matter ought to proceed to court. The Māori Land Court Judges point out this Executive control of access to the Māori Land Court is not replicated in similar tribunals or courts and is of profound constitutional significance. Alternative dispute resolution is desirable, but the Chief Executive acting as gatekeeper to the Māori Land Court would be against fundamental principles of access to justice.
The Draft Bill removes the more contentious aspects of these issues: the Chief Executive will determine administrative matters only, referring matters of law to the Māori Land Court; the dispute resolution process is no longer compulsory; and the Chief Executive no longer acts as a gatekeeper to the courts. Yet the Draft Bill still removes a vast amount of administrative functions and dispute resolution away from the Māori Land Court to the Executive. Such a shift runs the risk of losing institutional knowledge built up over 20 years. The Māori Land Court is currently assisted by specialist court staff that has considerable knowledge of the whakapapa, tikanga and history of local Māori. There is a risk that this knowledge may be lost or rendered inaccessible when administration is centralised. The Executive will decide matters such as succession issues, many of which involve complex issues of fact and whakapapa without necessarily having the requisite knowledge to do so.
Consultation and Consent
Taking a wider view, development of both the Exposure and Draft Bills has been incredibly swift. It has been described as a “[h]igh risk approach to law reform” and criticised for creating uncertainty while not achieving its stated objectives. Entirely new legislation is intended to be before the House of Representatives a mere four years after announcing a review. The Act, by contrast, was some two decades in the making, which had the benefits of generating deeper ownership and buy-in of the scheme, and ensuring the pitfalls of previous legislative regimes were avoided.
This speed compromises consultation on proposals and analysis of existing legislation – both vital for the development of comprehensive, respected and robust legislation. Consultation hui regarding the review in 2014 were pitched at a high level, without detail and were held before any substantive proposed Bill was made public. Panel members were ill-equipped to answer detailed questions. Refraining from extensive and detailed consultation on what is a highly contentious issue runs the risk of losing potential buy-in by implementing legislation that does not address legitimate concerns in a manner appropriate for the context. Precisely this lack of buy-in is aptly illustrated by the urgent claim regarding the Exposure Bill’s consultation process recently heard by the Waitangi Tribunal. It raises the question whether the “commercial imperative that is driving the Government’s desire for Māori land law reform is an imperative that Māori land owners share”. It also raises the concern that, if passed and despite the modifications to date, the Draft Bill will not garner the respect needed for it to be effective. It is not yet clear whether the second major round of hui currently taking place is markedly different from the first, whether it signifies a responsive, iterative consultation that is enhancing buy-in or whether owners have been alienated by the flawed content and process of the Exposure Draft.
A thorough understanding of the existing legislation and an analysis of its strengths and weaknesses are necessary to ensure such strengths are replicated and weaknesses avoided in new legislation. Submissions suggest that the review panel were only partially informed and their underlying premise – that is a latent desire for an entirely new Act rather than adjusting existing legislation – was mistaken; the Act is working moderately well and the terms of reference ought to have allowed the panel to consider amending rather than replacing the Act. Due to the low level of consultation, lack of analysis of existing legislation and its application, and the Government’s rejection of the Waitangi Tribunal criticisms, the risk of critical errors in the proposal is high. Because of the value and scarcity of Māori freehold land, these errors cannot be afforded.
Mō Ake Tonu Atu
That there is need for some kind of reform of the Act is not in dispute. That there are ongoing and increasing desires to “remould” the structure and purpose of land-holding entities is evidenced by applications to the Māori Land Court to do just that. The dual aims of reform in increasing economic return while retaining cultural value do not themselves give cause for concern. The reform, however, will arguably not achieve its stated aims nor necessarily achieve the wider aims of Māori.
The proposed replacement for the Act modifies only subtly the underlying purpose and principles of the legislation, but these modifications are woven throughout the provisions and can have considerable impact upon substantive outcomes. Moreover, both the Exposure Bill and the Draft Bill that followed it make significant changes to governance procedures, administrative functions and dispute resolution mechanisms. These have various potential effects, both positive, for example in facilitating increased utilisation and the alignment of governance structures with tikanga, and negative, in reducing the role of the Māori Land Court and burdening owners with cumbersome procedural requirements.
At the close of the New Zealand land wars, Ngāti Mahuta Chief Tamati Ngapora observed “[i]f the blood of our people only had been spilled and the land remained, then this trouble would have been over long ago”. Ngapora might not be surprised to find that contention over Māori land remains, but it is likely he would agree with the Waitangi Tribunal that Māori land legislation deserves careful reappraisal, informed consultation and broad-based support before implementing substantial change. The principles of partnership and good faith, combined with the paramount importance of Māori land, suggest extensive consultation, perhaps to the extent of collaboration, ought to be undertaken.
 People move on, but always the land remains.
 Te Puni Kōkiri Discussion Document: Te Ture Whenua Maori Act 1993 Review Panel (March 2013) at 2.
 Native Land Act 1865. While the 1862 Act of the same name outlined judicial procedures, it did not establish the Native Land Court.
 Judges of the Māori Land Court “Te Tari o te Kaiwhakawā Matua o te Kooti Whenua Māori / Submission of the Judges of the Māori Land Court on the Te Ture Whenua Māori Bill” (7 August 2015) at 5.
 Waitangi Tribunal Initiation, Consultation and Consent: Chapter 3 of Report into Claims concerning Proposed Reforms to Te Ture Whenua Maori Act 1993 Pre-Publication Version (Wai 2478, 2016) at 1.
 Christopher Finlayson “Te Ture Whenua Maori Act review announced” (3 June 2012) New Zealand Government official website <www.behive.govt.nz>.
 Māori Lands Amendments Act 1974.
 New Zealand Māori Council Kaupapa: Te Wahanga Tuatahi: A Discussion Paper on Maori Affairs Legislation (February 1983) at 10.
 Richard Boast and others Maori Land Law (2nd ed, LexisNexis,Wellington, 2004) at 117.
 New Zealand Māori Council, above n 8, at 10; and Boast, above n 9, at 117.
 Boast, above n 9, at 117.
 Te Ture Whenua Māori Act 1993, preamble, s 2(1).
 Te Ture Whenua Māori Bill (Exposure Draft), cl 3.
 Te Ture Whenua Māori Act 1993; and Te Ture Whenua Māori Bill (Exposure Draft), cl 238(2).
 Te Ture Whenua Māori Act 1993, preamble and s 2(2).
 Te Ture Whenua Māori Act 1993, preamble and s 2(2); and Te Ture Whenua Māori Bill (Consultation Draft), cl 3(1) and 3(3).
 Te Ture Whenua Māori Act 1993, preamble; and see also Boast, above n 9, at 14.
 Te Ture Whenua Māori Bill (Exposure Draft), cls3 and 4 respectively.
 Te Ture Whenua Māori Bill (Consultation Draft), cl 3(2) and 3(4)
 Te Ture Whenua Māori Bill (Exposure Draft), cls 134–160.
 Te Ture Whenua Māori Bill (Consultation Draft), pt 5 sub-pt 1.
 See particularly Te Ture Whenua Māori Bill (Exposure Draft), cls 5, 6(2) and 161.
 Te Ture Whenua Māori Bill (Exposure Draft), cl 190.
 See in particular Te Ture Whenua Māori Bill (Exposure Draft), pt 5.
 Te Ture Whenua Māori Bill (Consultation Draft), pt 5.
 See Stephen Cornell Five Myths, Three Partial Truths, A Robust Finding and Two Tasks (Project Report Series, Harvard Project on American Indian Economic Development, John F Kennedy School of Government, Harvard University, 1994) cited in Eddie Durie “Custom and formation of Tribal Authorities” (2011) 14 YB NZ Juris 152 at 154.
 Durie, above n 26, at 154–155.
 Judges of the Māori Land Court, above n 4, at 16.
 Te Ture Whenua Māori Bill (Exposure Draft), cl 233(1); and Judges of the Māori Land Court, above n 4, at 17 and 124.
 Te Ture Whenua Māori Bill (Exposure Draft), cl 233(2).
 Judges of the Māori Land Court, above n 4, at 24 and 123.
 Te Ture Whenua Māori Bill (Consultation Draft), s 245(3).
 Te Ture Whenua Māori Bill (Consultation Draft), s 245(4), 246 and 247.
 See Te Ture Whenua Māori Act 1993, ss 145–152.
 Te Ture Whenua Māori Bill (Exposure Draft), sched 2, and sched 3, 7(3).
 Clause 45(5).
 Clause 83.
 See the example discussed in Judges of the Māori Land Court, above n 4, at 62–64. The judges describe a situation where one owner with a small percentage share in the land could make binding outcomes for those with larger shares if those with larger shares are not, for whatever reason, able to participate in the vote.
 New Zealand Māori Council “Te Ture Whenua Māori Act 1993 Review Panel Discussion Document March 2013 Submission of the New Zealand Māori Council” (2013) at 2.1–2.2.
 See Te Ture Whenua Māori Bill (Exposure Draft), pt 4; and Te Ture Whenua Māori Bill (Consultation Draft), pt 4.
 Te Hunga Roia Māori o Aotearoa “Submission on review of Te Ture Whenua Māori Act 1993” (14 June 2013) at 2.
 See Kerensa Johnston “Māori Legal Developments”  NLR 171 at 184; and Judges of the Māori Land Court, above n 4, at 6.
 See for example Durie, above n 26, at 157.
 Te Ture Whenua Māori Bill (Exposure Draft), prt 9, especially cls 290, 291.
 Judges of the Māori Land Court, above n 4, at 147.
 Te Ture Whenua Māori Bill (Exposure Draft), cl 297(4).
 With the exception of the Family Court on certain matters. See Judges of the Māori Land Court, above n 4, at 9–10 and 148–149.
 Te Ture Whenua Māori Bill (Consultation Draft), cl 337(1).
 Te Ture Whenua Māori Bill (Consultation Draft), cl 325(2).
 Te Ture Whenua Māori Bill (Consultation Draft), cl 332(4).
 Judges of the Māori Land Court, above n 4, at 5.
 See Andrew Erueti “Te Ture Whenua Maori 1993” (LLM dissertation, Victoria University of Wellington, 1993).
 Johnston, above n 43, at 184.
 New Zealand Public Service Association “PSA Submission on Te Ture Whenua Māori Bill (Exposure Draft) and Proposed Māori Land Service” (7 August 2015) at 4.
 Waitangi Tribunal, above n 5.
 Johnston, above n 42, at 184.
 New Zealand Public Service Association, above n 54, at 4–5.
 See “Consultation on Māori land law ‘nonsense’” (9 February 2016) Radio New Zealand <www.radionz.co.nz>
 See for example Linda Te Aho “Contemporary Issues in Maori Law and Society: Mana Motuhake, Mana Whenua” (2006) 14 Waikato L Rev 102 at 115, discussing In re Mangatawa-Papamoa Inc (2006) 84T Waikato-Maniapoto MB 185 and In re Tuaropaki E (2005) 82 Taupo MB 206-211.
 Tamati Ngapora, 1872, cited in Atholl Anderson, Judith Binney and Aroha Harris Tangata Whenua: An Illustrated History (Bridget Williams Books, Wellington, 2014) at 282.
 Waitangi Tribunal, above n 5, at 182–183.