March 2016 Māori Law Review

Review of Te Ture Whenua Māori Act 1993 – Waitangi Tribunal inquiry – summary of findings and recommendations

He Kura Whenua Ka Rokohanga - report on claims about reform of Te Ture Whenua Māori Act 1993 (Pre-publication)

Chapter 5 - Ngā Whakakitenga Me Ngā Tūtohinga / Summary of findings and recommendations

Waitangi Tribunal (Wai 2478, 2016)

11 March 2016

The Waitangi Tribunal inquired urgently into claims about the Crown's process of consultation and proposed reforms to Te Ture Whenua Māori Act 1993. The Tribunal has issued its report. In this article Toni Love looks at Chapter 5, which summarises the findings, and make recommendations for the prevention of prejudice to Māori landowners and their whānau, hapū and iwi.

Download He Kura Whenua Ka Rokohanga - report on claims about reform of Te Ture Whenua Māori Act 1993 (Pre-publication).

Overview and Result

Review of Te Ture Whenua Māori Act 1993 – Waitangi Tribunal inquiry – summary of findings and recommendations
Date 11 March 2016
Case He Kura Whenua Ka Rokohanga - report on claims about reform of Te Ture Whenua Māori Act 1993 (Pre-publication)
Citation Wai 2478, 2016
Tribunal Waitangi Tribunal
Member(s) Ron Crosby (Presiding), Miriama Evans, Dr Rawinia Higgins, Professor Sir Hirini Mead KNZM, Dr Grant Philipson
Earlier/later decisions Applications for urgent hearings concerning the review of Te Ture Whenua Māori Act 1993 (Wai 2478, #2.5.21)
Legislation cited
Cases cited
Overview and result The Waitangi Tribunal found that the Crown’s process was flawed because Māori were not properly informed. The Tribunal said that in order to not breach the principles of the Treaty of Waitangi, properly informed and broad-based support for the proposed reforms should be obtained.
Regarding the substantive reforms the Tribunal found that a number of provisions were Treaty-deficient and that Māori would be prejudiced if the Bill proceeded in its current form. Further, the Bill’s proposals cannot be fairly assessed by Māori without much more detail about how the Crown will operate and fund the Māori Land Service, and how it will respond to the longstanding constraints to land utilisation which are the subject of a programme of work called the Māori enablers workstream. As a result of this unacceptable level of uncertainty, Māori will be unable to offer properly informed, broad-based support for the Bill to proceed at this time, as Treaty principles require.

Background

The Waitangi Tribunal inquired urgently into claims about the Crown's process of consultation and proposed reforms to Te Ture Whenua Māori Act 1993. The Tribunal has issued its report (on 11 March 2016). Chapter 5 summarises the findings, and make recommendations for the prevention of prejudice to Māori landowners and their whānau, hapū and iwi. This article discusses that chapter.

The Tribunal earlier released a draft chapter addressing claims about the process followed. See (2016) February Māori LR.

Discussion

The Tribunal's discussion of process issues was divided into three areas: initiation of proposals to reform the law in this area; consultation; and whether there was consent to law reform.

The discussion of the proposed reforms considers the three components of the Crown’s reform of Te Ture Whenua Māori: legislative reform, the Māori Land Service and the Māori enablers workstream.

Process

The Tribunal concluded overall that the 2013 reforms were instigated and shaped by both Māori and the Crown.

As both Treaty parties had an interest in the legislation, either party could initiate a review; however because of the significance of the taonga at stake (Māori land), the Crown cannot follow whatever policy it chooses.

Consultation with Māori conducted both in 2013 and in 2015 was flawed because Māori were not properly informed.

The Tribunal found that the Crown will be in breach of the principles of the Treaty of Waitangi if it does not ensure that there is properly informed and broad-based support for the proposed law reform to proceed.

Reforms

The Tribunal considered it fundamental in Treaty terms that the new Bill provides protection for both the retention of Māori land, as a taonga tuku iho, and for the effective authority (tino rangatiratanga) of its owners so that they may occupy, use, and develop the land as appropriate for the benefit of present and future generations.

The Tribunal examined the draft Bill’s provisions to determine whether they reflected the range of Treaty values.

The English version of the Bill’s ‘purpose and principles’ clause reflected this range of Treaty values; however, the Māori-language version, which prevails, is flawed and the Tribunal stated it cannot be adopted in its present form.

The substance of the new Bill is designed to replace Māori Land Court protections with a different ‘proxy’ for absent owners in the form of a ‘participating owners model’. Under this new model the Court will no longer have its present power to review the merits of certain decisions against the 1993 Act’s criteria. The claimant’s concerns and reservations over the loss of the Court’s discretionary powers to protect the rights and interests of all owners were considered understandable. The Bill requires Māori to relinquish a well-understood system of protections, which have guaranteed land retention over the past two decades and the empirical research to establish whether or not the present Act is in fact a barrier to land-use is yet to be conducted.

The Tribunal found that Treaty principles do not require any one specific form of protection mechanism. As long as a protection mechanism is effective and has the properly-informed, broad-based support of Māori, then its introduction in the new Bill will not be inconsistent with Treaty principles. However, the Tribunal had many doubts that empirical research exists that would allow a properly-informed choice to be made.

The change in governance mechanisms is also not inconsistent with the Treaty, provided Māori are enabled to give properly-informed agreement to that proposal; however, the lack of research in that regard inhibits the Tribunal’s ability to conclude that removal of the court’s protective role is consistent with the Crown’s duty to ensure a system is in place for the sound governance of Māori land.

A number of the draft Bill’s features were also considered as nullifying or weakening the Bill’s intended protection mechanisms and that Māori landowners would be prejudiced by if the Bill proceeds with these Treaty-deficient provisions. These provisions included the ability of minorities of owners to hold second-chance meetings, clause 100 (subsequently numbered cl 102 in a subsequent draft of the Bill), allowing governance bodies to make decisions without owner agreement, the removal of voting rights of owners under some form of incapacity or putative owners who have not succeeded, the removal of the court’s power to grant equitable remedies, and the prospective regimes for succession and compulsory dispute resolution in their present form.

Māori Land Service and the programme of work to enable utilisation and development

The Māori Land Service is clearly critical to the effective operation of the Bill. The Māori enablers workstream is intended to address a range of long-standing constraints on the utilisation and development of Māori land, such as landlocked land, and rating and valuation.

Despite their importance, the Crown has made very few decisions to date relating to the Māori Land Service and the enablers, and has been unable to offer Māori sufficient detail about them.

The Tribunal found that such a fundamental reform of the Māori land regime is too important to proceed without further certainty on all of its components. The Bill’s proposals cannot be fairly assessed by Māori without much more detail about how the Crown will operate and fund the Māori Land Service, and how it will respond to the longstanding constraints to land utilisation which are the subject of the Māori enablers workstream. Due to this unacceptable level of uncertainty, Māori will be unable to offer properly informed, broad-based support for the Bill to proceed, as Treaty principles require.

Recommendations

Due to the lack of empirical evidence available to the Tribunal on which to make specific recommendations on a number of matters, the Tribunal has made both general and specific recommendations for the prevention of prejudice to Māori .

Process

In order to avoid prejudice to Māori, the Tribunal recommended that the Crown undertake further engagement nationally with Māori landowners, through a process of hui and written submissions, after reasonable steps have been taken to ensure that Māori landowners are properly informed by necessary empirical research, funded by the Crown.

If such a consultation shows broad Māori support for the Bill to proceed, then further engagement with Māori stakeholders and leadership groups to make any final refinements and revisions was recommended, with an agreed process for those groups to consult their constituencies and confirm that broad support for the Bill remains.

If properly informed, broad-based support is not forthcoming, then it is recommended that the Crown follow the same process in order to determine appropriate amendments to the current Act (as the Tribunal observed that all parties appeared to agree that at least some significant amendments to the law are required).

The Tribunal also recommend that the Crown continue to take advice from independent Māori experts, and to accord a leadership role to a representative advisory group in its engagement with Māori.

Māori Land Service and the programme of work to enable utilisation and development

Regarding the Māori Land Service, the Tribunal recommended that the Crown develop the methods of administrative support for the operation of Te Ture Whenua collaboratively, with the broad support of Māori landowners. This should be done at the same time as consultation, so that there is more certainty on administrative support before any Bill is enacted.

Regarding the enablers workstream, the Tribunal recommended that work continue urgently on such matters as rating, valuation, landlocked land, paper roads, and all other matters encompassed in that workstream, in satisfaction of the Crown’s Treaty duty to remedy past breaches. Access to finance is recommended as a matter of urgent attention, and that work on the ‘enablers’ keep step with the wider reform package. This is necessary so that Māori may make informed choices on the basis of a concerted strategy to remedy the barriers to utilisation and development of Māori land.

Recommendations about the Bill and its specific provisions

Generally, the Tribunal recommended that the Crown avoids legislative solutions which enable, in legal or practical terms, small groups of participating Māori landowners to effectively alienate the interests of other Māori landowners, including those under some legal or practical incapacity, with no impartial method of control of that outcome. Further, the Tribunal recommended that the Crown avoids compulsory solutions, even default ones, in any drafting or redrafting of provisions.

More specifically, the Tribunal has recommended that the Crown ensures that:

  • the Māori version of the purpose and principles clause is redrafted in consultation with Māori language experts to adequately and fully express the extremely important concepts to be conveyed in that clause;
  • the Māori Land Court’s discretionary powers are restored in respect of any second-chance provision, for the protection of all owners’ interests, and in accordance with any statutory criteria for the court’s review that the Crown and Māori both support;
  • a loophole does not allow governance bodies to sell land on the basis that 75 per cent of participating owners have agreed to a land management plan;
  • the Bill requires governance bodies to abide by every owner-agreement threshold in the Bill;
  • there are mechanisms to protect the interests of putative owners (who have not yet succeeded) and all owners under incapacity;
  • decisions about whether disputes should go to alternative dispute resolution or hearing are left to the qualified discretion of judicial officers in conjunction with their registrars, and not placed in the hands of administrative officers;
  • succession processes in case of intestacy are provided for in a practical and inexpensive manner, are dealt with primarily by the court in conjunction with its staff and – if it proceeds as planned – the Māori Land Service, and Māori are assisted to form whānau trusts if that is their wish.