June 2016 Māori Law Review

Review of Te Ture Whenua Māori Act 1993 – Te Ture Whenua Māori Bill – registers and the Māori Land Court

A Bill was introduced into the House of Representatives in April 2016 to further reform Māori land law. This latest reform project has been in train since June 2012 when an independent expert panel was appointed to review the law.

Toni Love has followed the law reform process and has prepared a series of articles examining the most significant components of the new Bill as introduced to the House of Representatives. In this article she examines the provisions relating to registers and the Māori Land Court.

Overview

A review of the Te Ture Whenua Māori Act 1993 (“the Act”) was announced by the Associate Minister of Māori Affairs on 3 June 2012.[1]

A Review Panel was formed to advise on unlocking the economic potential of Māori land for its beneficiaries, while preserving its cultural significance for future generations.[2] The review aimed to provide a recommendation for a form of legislative intervention that would empower Māori land owners to achieve their aspirations while enabling better utilisation of land.

A complete re-write of the current Act was chosen over piecemeal amendment. This culminated in an exposure draft Bill that is markedly different from the Act both in structure and function. The proposed changes are intended to provide a solution to the issues raised by the Review Panel in their report as well as to empower Māori land owners.[3] After consultation, and a Waitangi Tribunal inquiry and report, the draft Bill was revised. A Bill has now been introduced into the House of Representatives.

This article is one in a series that considers the substantive changes in the Bill as introduced, Te Ture Whenua Māori Bill (“the Bill”). The Bill was introduced into the House of Representatives on 15 April 2016.

Each article compares the main changes between the Bill and Act, and discusses the most significant issues addressed by the Waitangi Tribunal when it looked at the earlier exposure draft Bill (the Wai 2478 inquiry). The articles also include analysis from the resulting Waitangi Tribunal Report He Kura Whenua Ka Rokohanga (Wai 2478, 2016). The articles do not include a detailed clause by clause analysis.

Te Ture Whenua Māori Bill - articles
1Policy statement and explanatory note
2Preliminary provisions
3Status of land and whenua tāpui
4Ownership interests in Māori freehold land
5Disposing of interests in Māori land
6Succession
7Management entities
8Registers and the Māori Land Court (this article)
9Dispute resolution

Further information relating to specific clauses is available in the materials referenced in this article.

The content contained within this article presents information relating to the Bill as introduced to the House of Representatives. The reform is an ongoing process, with the Bill as introduced going through a number of iterations since its release as an exposure draft in May 2015.

Background

The Te Ture Whenua Māori Bill provides for the establishment of a new Māori Land Register and the changes to the jurisdiction of the Court. The reform aims to reduce judicial oversight in conjunction with the establishment of a new Māori Land Service. This results in a division of the maintenance of the registers of Māori land interests and a significant reduction in the role and power of the Court. The proposals represent an intentional shift away from an historic and, many would argue, an outdated system of judicial oversight of administrative matters to a more modern system. The Crown believes that this will reduce the workload of the Court and empower Māori land owners to make decisions about their land.[4] The changes to the register system reflect the change in function of the Court and the need to balance the need for accessible information with the need to maintain appropriate privacy, and thorough record keeping.

Discussion

Māori Land Register

Under the Act the Māori Land Court has the main registration responsibilities in relation to Māori land. Each court registry office holds registries of Māori Land information. Orders affecting land title interests are registered with Land Information New Zealand.

The Bill separates the responsibility of recording information between three roles. The Chief Executive has the responsibility of establishing and maintaining a register of Māori land, the Registrar-General has the responsibility for the land title register, and the Chief Registrar of the Court maintains the permanent record of the Court (cls 270, 284, 287, and 289). The Chief Executive is not defined but relates to the government department that will be assigned responsibility in due course for the register.

The proposed Māori land register must comprise a public part and an administrative part that may be kept in electronic form or in any other form that the Chief Executive (of the agency responsible for the register) thinks fit. However it must be kept in a form that permits its contents to be readily accessed or reproduced in useable form (cl 270). The Crown has noted that the reason for separating the parts in this way is to strike a balance between providing information to those entitled without making it available to the public at large.[5]

All instruments and notices issued under the Bill, which includes every order of the Court, must be provided to the Chief Executive (cls 268 and 269). . The Chief Registrar of the Court must provide the Chief Executive or the Registrar-General any documents or information held in the permanent record of the Court that is relevant to their functions (cl 269).

This is a change from the Act under which the Chief Registrar manages the Māori land register. As noted above, the roles have been divided to protect privacy. In commenting on the draft Bill the Māori Land Court judges raised concerns about access by Māori to information, particularly in relation to succession and where Māori wish to research their Māori land interests.[6] A further question concerned the resourcing available for the Court to maintain its permanent record.[7] Officials’ answers to written questions as part of the Wai 2478 claim responded to this issue by stating:

… the aim of the Māori Land Service Programme is to develop a technology solution that allows online searching across both the Maori Land Court record and the Maori Land Register. This will involve fuller digitisation and indexing of the court record and an integrated technology solution, which have been included in the high level design work. The design will also include ensuring the availability of staff to assist with the research process as they do now. The reforms do not seek to reduce the funding required for the Court to maintain its record and to hold and preserve it.[8]

However, further issues were raised in submissions on the exposure draft of the Bill about the absence of guiding provisions for the Court’s permanent record.[9] This can be contrasted with the Bill’s Māori Land Register provisions that provide for the establishment of the Maori land register, its purpose, its contents, rights of access to it, the application of the Privacy Act, the requirement for historic and other information to be retained, evidentiary presumptions in relation to it, what is to happen where records are lost or need replacing, and the production of records (cls 270 – 284). The Bill does not provide similar provisions in relation to the permanent record of the Court, nor does it address issues relating to the primary records that will be held by the Chief Executive, such as how they will be maintained and what the rights of access are to them.[10]

The Chief Executive’s proposed powers in relation to the register were considered problematic by some submitters as they are powers usually reserved for the Court. A number of submitters considered that it was not appropriate for a departmental official to hold such a power.[11] For example, under the Bill, the Chief Executive will be able to replace or reconstitute instruments that have been lost, damaged, or destroyed (cl 283). The Chief Registrar does not hold a similar power under the Act and where a record is lost the procedure is for the Chief Registrar or Registrar to bring an application to the Court (ss 18, 25, or 128).

The changes reflect the overall scheme of the Bill which aims to shift those matters which are seen to be administrative functions away from the Court.

The Māori Land Court

Parts 11 to 16 of the Bill set out the provisions relating to the Māori Land Court itself. It is intended that these provisions will be separated from the Te Ture Whenua Māori Bill to become a Te Kōti Whenua Māori Act. The provisions concerning the Māori Land Court and the Māori Appellate Court remain largely the same as in the current Act. There have been some minor changes to the appointment of judges to take into account the Judicature Modernisation Bill. These include a requirement for the Attorney-General to publish the process for appointments; restrictions on undertaking other employment or holding other offices; and a requirement for a protocol relating to the activities of judges (cls 428 – 430).

Part 8 addresses the jurisdiction of the Court in relation to land, registers, and the giving of notices. The provisions concerning the jurisdiction of the Court largely reflect those found in the Act, except that the provisions will no longer include general land, because the Bill is confined to Māori freehold land (except where granting specific performance of a lease) (cl 306). The Court has all the powers and authorities of the High Court in respect of trusts generally (cl 305).

The refocusing of the Māori Land Court’s jurisdiction is at the heart of the reforms. Amongst the submissions on the exposure draft there was both support for, and opposition to, shifting functions from judicial to administrative arms of the Court.[12]

Supporters thought the changes would reduce the administrative burden on the Court, thereby allowing it to focus on important matters of law, and promote owner autonomy overall. Although the current process was considered time-consuming, costly, and frustrating, it was acknowledged that there would be associated costs with the changes.[13]

There was mixed support amongst the submissions for the proposed division between the Court and the Māori Land Service. While some submitters viewed this as a good idea, it was considered by others to be unnecessary and likely to lead to problems. Most submitters considered that the Court has the capacity, structure, and legislative framework to undertake the roles envisaged by the Māori Land Service and questions concerning the reasons for the proposed changes were raised.[14] Many submitters thought that the Court should retain a broad judicial function and be further resourced to meet demands, as well better management and performance monitoring. Most submitters also considered that wholesale repeal was unnecessary and amendments to the Act would be a sufficient and cost efficient alternative.[15] Although not perfect, the Court is a trusted mechanism that is considered impartial, fair, and transparent. A number of submissions noted that people understand where they must go and what is required to participate in Māori Land Court processes, which provides a level of assurance that should not be changed.[16]

Concerns were raised about the lack of clarity around who would hold the information about the Māori land blocks and about the information, such as the minute books being held and maintained by the Māori Land Service.[17] Most submitters considered that the appropriate body to hold and maintain such records was the Court.

Notes

[1] Te Ture Whenua Māori Act 1993 Review Panel Discussion Document, March 2014.

[2] Te Puni Kōkiri Discussion Document: Te Ture Whenua Maori Act 1993 Review Panel (March 2013) at 5; Christopher Finlayson “Te Ture Whenua Maori Act review announced” (3 June 2012) New Zealand Government official website <www.behive.govt.nz>.

[3] Te Ture Whenua Māori Act 1993 Review Panel Report, Poutū-te-rangi 2014.

[4] Closing submissions of counsel for the Crown, WAI 2478, #3.3.6, 14 December 2015, at [254].

[5] Further Answers to Written Questions of John Grant, WAI 2478 #A32(a), 18 December 2015, at 35.

[6] Te Tari o te Kaiwhakawā Matua o te Kooti Whenua Māori: Te Ture Whenua Māori Bill Submission of the Judges of the Māori Land Court 7 August 2015, at [538 and 539].

[7] Te Tari o te Kaiwhakawā Matua o te Kooti Whenua Māori: Te Ture Whenua Māori Bill Submission of the Judges of the Māori Land Court 7 August 2015, at [538].

[8] Further Answers to Written Questions of John Grant, WAI 2478 #A32(a), 18 December 2015, at 32(b).

[9] Te Tari o te Kaiwhakawā Matua o te Kooti Whenua Māori: Te Ture Whenua Māori Bill Submission of the Judges of the Māori Land Court 7 August 2015, at [542].

[10] Te Tari o te Kaiwhakawā Matua o te Kooti Whenua Māori: Te Ture Whenua Māori Bill Submission of the Judges of the Māori Land Court 7 August 2015, at [542].

[11] Te Tari o te Kaiwhakawā Matua o te Kooti Whenua Māori: Te Ture Whenua Māori Bill Submission of the Judges of the Māori Land Court 7 August 2015, at [548].

[12] TPK, ‘Te Ture Whenua Maori Reform: Summary of Submissions’, September 2015, at 6.39.

[13] TPK, ‘Te Ture Whenua Maori Reform: Summary of Submissions’, September 2015, at [640] and [641].

[14] TPK, ‘Te Ture Whenua Maori Reform: Summary of Submissions’, September 2015, at [642].

[15] TPK, ‘Te Ture Whenua Maori Reform: Summary of Submissions’, September 2015, at [643].

[16] TPK ‘Te Ture Whenua Maori Reform: Summary of Submissions’, September 2015, at [644].

[17] TPK ‘Te Ture Whenua Maori Reform: Summary of Submissions’, September 2015, at [646] – [648].

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