June 2016 Māori Law Review

Review of Te Ture Whenua Māori Act 1993 – Te Ture Whenua Māori Bill – status of land and whenua tāpui (Māori reservations)

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 status of land and whenua tāpui (Māori reservations).

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 the third 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 (this article)
4Ownership interests in Māori freehold land
5Disposing of interests in Māori land
6Succession
7Management entities
8Registers and the Māori Land Court
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

Submissions received during the consultation process and claimants before the Waitangi Tribunal raised a number of concerns about part 2 of the Bill.

Part 2 addresses status of land and whenua tāpui (Māori reservations). It contains a number of changes, including the removal of general land as a category of private land, the inclusion of Māori customary land in the definition of private land, the reduction of the Court’s exclusive jurisdiction to determine the status of land, the removal of the Court’s discretion in relation to land status orders, and the introduction of the whenua tāpui regime.

The whenua tāpui regime is an elaborate and highly prescriptive Māori reservations regime. Although it contains elements from the current Act, there are changes to what land is eligible to be set aside as a reservation, who can set aside land as a reservation, the role of the Māori Land Court, and how the reservation is managed. Those who can benefit from a reservation and the purposes for which a reservation can be set aside remain unchanged.

Discussion

Status of Land

The Bill states that it is a Bill to restate and reform the law relating to Māori land and defines Māori land as Māori customary land and Māori freehold land (cl 5).

Private land is defined as land held in fee simple by a person other than the Crown; and includes Māori land (cl 5). Currently, private land includes general land; however the Bill discontinues the general land status and the meaning of private land has been widened to include Māori land.

The definition of Māori customary land remains the same as that found in the Act (cl 12; s 129(2)(a)).

Under the Act, Māori customary land is inalienable (s 145). In contrast the Bill enables alienation in limited circumstances, including by way of easements and providing access to landlocked Māori customary land, and through setting aside land as a whenua tāpui (cl 13).

Under the Act, the Māori Land Court has exclusive jurisdiction to investigate the title to Māori customary land and to determine the relative interests of the owners (s 132(1)). Under the Bill, the Court has exclusive jurisdiction only to determine the collective owners of Māori customary land (cl 15). However, the Court is empowered to determine whether the land is Māori customary land on application or on its own initiative in any proceedings (cl 14).

Kaiwhakahaere

The Bill allows the Court to appoint a kaiwhakahaere to manage Māori customary land (cl 17). One of the powers of a kaiwhakahaere is the ability to apply for a change in land status from Māori customary land to Māori freehold land (cl 16). The threshold for this change is particularly low, requiring only agreement by 50 percent of those who attend a meeting held to consider the proposed change of status (cl 16).

Changing status

The Court may on application declare that land ceases to be Māori freehold land in accordance with the Bill (cl 27). Under the Bill, land that ceases to be Māori freehold land appears to become “private land that is not Maori land” (cl 27).

Submissions on the exposure draft of the Bill expressed concern about the change of status provisions. Some submitters were concerned that the process for changing land to Māori freehold land would be more onerous than the Act. On the other hand, the change from Māori freehold land to private land that is not Māori land (general land) was considered by many submitters to be not restrictive enough.[4] The former could impede development and thus utilisation, while the latter potentially erodes the principle of retention.

Under the Act, changing the status of Māori land to General land requires the Court to be satisfied that the land can be managed or utilised more effectively as General land (s 136(d)). This protective mechanism has had the effect of ensuring that a change in status is not employed simply to facilitate a sale. This important discretionary protection was originally removed from the exposure draft Bill, which is in line with the overall shift in focus of the Bill from retention to utilisation. The jurisdiction to remove Māori freehold land status under the Bill is discretionary and in response to submissions the discretion has been extended to include that the Court must be satisfied that "the purpose of Parts 1 to 9 can be achieved more effectively if the land does not have the status of Māori freehold land."

Private land may be declared Māori freehold land (cl 25). This is similar to the Act; however, the Bill no longer requires the Court to have regard to the history of the land, and to the identity of the owners and their personal association with the land, in satisfying itself that the land should become Māori freehold land (s 133).

Whenua tāpui – Māori reservations

As the law stands, Māori reservations are governed by ss 338 – 341 of the Act and the Māori Reservation Regulations 1994 (s 338(15) and (16)). Applications to set aside land as a Māori reservation are made to the Court, which will then make a recommendation to the chief executive of Te Puni Kōkiri (‘TPK’) who creates the Māori reservation by issuing a notice in the New Zealand Gazette.[5] After the reservation is established, the Court may appoint trustees and set out the terms of the trust for the management of the reservation.[6]

Under the Bill, a reservation is called a whenua tāpui (cl 5). Applications for a court order declaring a whenua tāpui can be made by one or more owners of the land, or a kaiwhakahaere of Māori customary land (cl 30). A kaiwhakahaere means a person appointed by the court to represent owners of Māori freehold land for a specified administrative purpose and largely carries over the agency provisions from the Act (cl 189). On application the court may declare the land as a whenua tāpui (cl 31). Once an order is made it simply takes effect. Only orders reserving land for the benefit of the people of New Zealand is required to the chief executive for notification in the Gazette (cl 31).

Each whenua tāpui must be managed by an administering body (cl 30). This requires each application to specify the name of the administering body to be appointed and the names of its members (cl 30). The declaration must reserve the land for the purposes specified in the declaration and for the common use and benefit of the owners, Māori who belong to a class of persons, or the people of NZ (cl 31). All declarations require the Court to invite and consider submissions before making the order (cl 37).

The requirements for a declaration will depend on the status of the land to be set aside.

  • Private land requires the Court to be satisfied of certain matters and agreement by all the owners (cl 32).
  • Māori customary land requires the chief executive to have notified and held a meeting of owners and obtained the requisite majority of owner agreement (75 percent of the owners of the land who attend the meeting) (cl 32).
  • Māori freehold land for the purposes of a marae or an urupā, where the beneficial ownership of the land is to vest in the beneficiaries, requires agreement by owners who together hold a 75 percent or more share in the land
  • Māori freehold land in any other case requires agreement by more than 50 percent of the participating owners of the land
  • Private land requires agreement by the owners of the land (cl 32).

The participation thresholds for a variation or cancellation are identical to those for declaring the land a whenua tāpui (cl 36). The Bill no longer requires an assessment of the overall merit of the proposal before the making of an order. A consideration of the merit is a safeguard that ensures a declaration, variation or cancellation is not simply being decided without considered reasons.[7] However, it appears the raised thresholds are an attempt to deter potentially vexatious claims.

The Bill clarifies the effect declarations of whenua tāpui have on ownership. Legal ownership vests in the administering body (unless the land is Māori customary land), while beneficial ownership remains unaffected and may continue to change by succession where the whenua tāpui is for purposes “other than a marae or burial ground” (cl 38). On cancellation the legal ownership of the land vests in the beneficial owners of land (cl 38).

An administering body is a body corporate whose function is to hold and manage the whenua tāpui on trust for the purposes for which it was reserved (cls 38 and 39). Although the members are no longer trustees with the related duties of trustees, they do owe fiduciary duties to the beneficiaries (cl 38).

An administering body may do anything authorised in the Act in order to perform its function, which includes granting leases or licences (cls 39 and 40). Leases for a papakāinga for residential housing are distinguished according to whether rent is payable or not (cls 41 and 42). Such leases do not require owner agreement unless there is a condition or restriction imposed on the administering body (cls 41 and 42). However, rent-free leases must be granted to a beneficiary of the whenua tāpui (cl 42).

The Bill still prohibits alienations of reservations; however it now allows the granting of easements (cl 44).

A declaration of whenua tāpui cannot apply to Māori freehold land managed under a governance agreement; land subject to a mortgage or other charge; and land subject to a lease or license deemed inconsistent with its declared purpose (cl 31).  This breadth of restriction is wider than under the Act. Instead, land managed under a governance agreement can be declared as a kawenata tiaki whenua by the governance body in accordance with the governance agreement (cls 137 – 139). A kawenata tiaki whenua is not a reservation; it is a covenant over land to preserve and protect sites of cultural or historical interest or sites of special significance according to tikanga Māori (cl 5).

The court has a significant role in Māori reservations under the Act. Although the final decision to set aside the land rests with the chief executive, once recommended by the Court it is unlikely that the chief executive would refuse.[8] The Court also has an influence in the management of the reservation through its involvement in appointing trustees and setting the terms of trust. However, beyond appointments to the administering body, the Court’s power in respect of whenua tāpui has been reduced, and thus the nature of its role has changed. Its role under the Bill will largely be to check compliance with the Bill. This is a theme that runs throughout the entire Bill.

Existing Māori reservations are transitioned to the new regime by being treated as if they were whenua tāpui constituted under the Bill and the trustees are to be treated as if they are members of the administering body (sch 1, cl 24). Any terms of trust imposed on the trustees of a Māori reservation are treated as conditions or restrictions imposed on the administering body. Under the current regime, Māori reservations rarely have express terms of trust, as s 338(8) provides that the Court “may” set out the terms of trust, but they are often not required because the Māori Reservations Regulations 1994 apply.[9] The Crown intends that the Māori Reservations Regulations will no longer apply under the Bill. These will be replaced by new regulations that follow a similar model to that found under the Reserves Act 1977. Present policy appears to envisage that these regulations will also govern the scope of the administering body.

The Waitangi Tribunal did not discuss the whenua tāpui regime in any significant detail in its report on reform of the Act. However, the Tribunal did note that submitters had raised concerns that the exposure draft of the Bill potentially left whenua tāpui vulnerable to compulsory acquisition under the Public Works Act, which was inconsistent with the Māori Land Court’s recent decision in Grace.[10] The Tribunal confirmed that the Crown has now amended the relevant provisions so that ‘Public Works Act taking of land reserved as whenua tāpui will be prohibited’.[11]

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] Te Puni Kōkiri, ‘Te Ture Whenua Māori Reform: Summary of Submissions’, September 2015, at [168] and [170].

[5] Te Kooti Whenua Māori “Māori Reservations” (February 2009) Māori Land Court. <http://www.justice.govt.nz/courts/maori-land-court/documents/publications/booklets/Reservations.pdf>

[6] Te Kooti Whenua Māori “Māori Reservations” (February 2009) Māori Land Court. <http://www.justice.govt.nz/courts/maori-land-court/documents/publications/booklets/Reservations.pdf>

[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 [106] (Wai 2478, doc A20; see (2015) December Māori LR).

[8] Grace – Ngarara West A25B2A (2014) 317 Aotea MB 268 (see (2014) September Māori LR).

[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 [94] (Wai 2478, doc A20; see (2015) December Māori LR).

[10] Submission 194, New Zealand Public Service Association, 7 August 2015 (Crown counsel, first disclosure bundle, submissions on Te Ture Whenua Māori Draft Exposure Bill 2015 (Wai 2478 doc A8), p 1789); Grace – Ngarara West AS5B2A (2014) 217 Aotea MB 268 (see (2014) September Māori LR).

[11] ‘Te Ture Whenua Māori Bill – Summary of main points of change following consultation’ (Grant, papers in support of sixth brief of evidence (Wai 2478 doc A27(a))).

Share on FacebookShare on Google+Tweet about this on TwitterShare on LinkedIn