September 2017 Māori Law Review

Review of Te Ture Whenua Māori Act 1993 – 2017 progress of Te Ture Whenua Māori Bill

Toni Love reports on progress of the proposed reform of Māori land legislation before the dissolution of the 51st Parliament ahead of the 2017 General Election.

Overview

A review of the Te Ture Whenua Māori Act 1993 was announced by the Associate Minister of Māori Affairs on 3 June 2012.

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. 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 differed markedly from the current 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. After consultation, and a Waitangi Tribunal inquiry and report (see He Kura Whenua Ka Rokohanga (Wai 2478, 2016)), the draft Bill was revised.

Te Ture Whenua Māori Bill (“the Bill”) was introduced into the House of Representatives on 15 April 2016.

In June 2016 the Māori Law Review published a special issue examining the Bill as introduced and the substantive changes made at that point from previous proposals and the issues addressed by the Waitangi Tribunal's examination of the exposure draft of the Bill. Table 1 below contains links to those earlier articles.

Table 1 - Te Ture Whenua Māori Bill as introduced - 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
9Dispute resolution

Subsequently, in December 2016 we reported the Māori Affairs Select Commitee's November report back to the House of Representatives after its inquiry into the Bill (see (2016) December Māori LR).

In 2017 Te Ture Whenua Māori Bill progressed to the Committee of the Whole House stage. Parts 1 - 5 have been addressed, including amendments proposed by Government Supplementary Order Papers (SOP).

The Māori Affairs Select Committee's recommendations have been accepted and these in part address some of the key concerns that were raised during submissions on the exposure draft as well as during the Select Committee stage. However, many of the controversial elements remain. These include the participating owners model, the compulsory dispute resolution process for matters of fact, and the default whānau trust regime.

Detailed information regarding the proposed Māori Land Service is now available and has been since August 2016, though it does not appear to have been given much exposure. Further information about plans to make the proposed system operational if the Bill is enacted have also been released. This includes information about the fund that will be available for development.

The Bill's progress has been halted as a result of Parliament's dissolution. It is unclear if the Bill will be restored to the Order Paper in the 54th Parliament and proceed through remaining stages to enactment. This is because it is uncertain whether the next Government will be composed of parties who support the Bill or not.

Background

The Te Ture Whenua Māori Bill (the 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 and advise on unlocking the economic potential of Māori land for its beneficiaries, while preserving its cultural significance for future generations.[1] 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 Te Ture Whenua Māori Act (the 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.[2]

After consultation, and an inquiry and report by the Waitangi Tribunal, the draft Bill was revised and introduced to Parliament. The Bill passed the First Reading and was sent to the Māori Affairs Select Committee. The Committee received 192 submissions. The Select Committee made subsequent recommendations in its reporting the Bill back to the House of Representatives. These recommendations addressed some of the key concerns raised in the submission process. The Bill was read a second time on 13 December 2016. The Bill’s progress reached the Committee of the Whole House with discussion being midway through Part 6 of the Bill when the 51st Parliament was dissolved. Parts 1 through 5 were accepted and agreed to, including the amendments made by Supplementary Order Paper (SOP) 278, 279, and 311 to these parts. The Bill’s progress is now halted following, the Minister promoting it, Te Ururoa Flavell stating that the Bill will not pass into law before the election.[3] It remains open whether the Bill will be reinstated in the next Parliament.

This article discusses some of the Select Committee’s key recommendations and some of the substantive amendments proposed by the SOPs. The article takes a step back to see the issues in light of the overall process to date. It includes a discussion of the key changes in light of the submissions to the Select Committee, the Waitangi Tribunal recommendations, and points raised during the Committee of the Whole House stage. Many of the changes are minor and do not require analysis. These include clarifying something, changing the drafting style, improving consistency within the Bill, updating provisions because of new legislation, or correcting an error. However there a few significant changes and amendments.

Interestingly the Select Committee, to date, has not commented on areas that continue to be raised with concern by submitters. In particular the dispute resolution process, the reduced role of the Māori Land Court, the participating owners’ model, the definitions of certain terms, the move to an administrative model for succession, collective ownership, and the default whānau trust regime. Other issues have, however, been canvassed during the Committee of the Whole House.

Overall, the Select Committee was concerned with the workability of the legislation. During its inquiry the Committee spent considerable time questioning officials to understand how various aspects of the new arrangements might work in practice.[4] This, Committee members said, gave them some reassurance. However, they acknowledged that further information was needed to give future users of the legislation a similar degree of comfort. The Committee’s recommended changes are intended to promote workability and avoid unintended consequences. Similarly, the suggested amendments made by the Minister promoting the Bill, SOPs 279 and 311, are also intended to promote workability, consistency, and clarity.

Six SOPs have been tabled in total. Four of these are Government SOPs (278, 279, 290, 311) and two are member SOPs (312 and 322).[5] SOP 278 divides the Bill into three bills:

  • Te Ture Whenua Māori Act 2017 comprising Parts 1 to 9 and Schedules 1 to 4
  • Te Kooti Whenua Māori Act 2017 comprising Parts 10 to 16 and Schedules 5 to 7, and
  • Te Ture Whenua Māori (Repeals and Amendments) Act 2017 comprising of Part 16 and Schedules 8 to 12.

SOP 279 includes over 30 amendments to the Bill and over 20 new clauses.

SOP 311 makes 8 amendments to SOP 279.

SOP 290 seeks to include a review provision that will require the Minister to start a review of the operation and effectiveness of that Act as soon as practicable after the seventh anniversary of the date on which the Act has commenced. The Minister will be required to prepare a report on the review and present it to the House of Representatives. Two amendments have been submitted from opposition members. While one sought a minor amendment to clause 197 that was not agreed to, the second will be debated, if the Bill is reinstated and seeks to exempt Māori land from the Crown’s ability to acquire it for the purposes of public works, either by agreement or “confiscation”.[6]

Discussion

Preliminary provisions

The Select Committee did not discuss the changes to the preliminary provisions in any substantive way. Members recommended changes to the definitions of “whangai” and “participating owners” in order to promote clarity. These sections received considerable criticism and comment before the Bill’s introduction, particularly in relation to the removal of the 1993 Act’s Preamble.[7] However, on inquiry, the Tribunal found that the amendments made to the exposure draft of the November 2015 Bill reinserted the range of Treaty of Waitangi values identified in the 1993 Preamble. The Tribunal considered that the wording overall was consistent with the principles of the Treaty (p 271). A number of submitters on the introduced Bill mostly focused on the use of Māori terms in the preliminary provisions and noted their inconsistent use or their being defined differently to their common Māori meanings.[8]

The law firm Kensington Swan made a submission that comprehensively discussed the preliminary provisions.[9] It was suggested that the “purposes/principles” distinction be re-evaluated and that the possibility of consolidating the objectives of the Bill into one general provision should be addressed. They noted the potential risk of litigation involving a close fixation on the distinctions between “purposes” and “principles” emerging and of the relative rankings between them (as happened with similar provisions in the Resource Management Act 1991).[10] Further, questions were raised about the particular reference to the Treaty and its inconsistency with a great majority of other statutory references to the Treaty.[11] This poses a significant legal interpretative difficulty and effectively requiring a new approach to interpretation that will be different from the case law that has developed since 1987 (State-owned Enterprises case).[12]

Kensington Swan’s submission also considered significant tidying of the interpretation provisions was necessary.[13] Noting inconsistencies of meaning as well as inconsistency of approach to where definitions are located in the Bill. Overall, the submission considered that, given the large number of new terms, it would be more useful and make the reforms more accessible and understandable to have one comprehensive interpretation section.[14]  The current Bill has since been amended by SOP 279 to make the interpretation section more user friendly by making including all the terms. However, it is not a comprehensive interpretation clause. Instead a user will be referred to the relevant section to obtain the specific definition.

The submission by Ngā Rangahautira identified that preliminary provisions in the Bill are written first in English and subsequently translated into Māori.[15] They considered this to be in conflict with the statement that the Bill’s Māori text is authoritative in the event of conflict.[16] The submission suggested that the preliminary provisions should be written in Māori first, in order to fully recognise and uphold the purpose of the Bill and subsequently translated into English.[17] However, if this was not possible, it was stated that the Māori translation should not be directly translated word for word from the English version. Commas and full stops should be better used to reflect the ngako (true essence) of Te Reo Māori.[18]

The Select Committee made recommendations concerning particular definitions that had caused concern among submitters. The recommendations were made to clarify their meaning and to correct common interpretations that had surfaced in the submissions.[19] For example, the Committee recommended clarifying the meaning of the term “participate”, to make it clear that it would include not only people who vote on a proposal, but also people who are involved in the decision-making process, even if they abstain from voting.[20] This could include attending a meeting in person, or being involved by Skype or other communication technology. In relation to “whāngai” the Committee recommend removing the reference to iwi as it had the potential to create uncertainty.[21] Further, whāngai status should be determined by the tikanga of the relevant hapū or whānau and in the event of doubt or inconsistency, the tikanga of the whānau should prevail.[22]

The Committee recommended inserting a clause (7A) to make the intent of the bill clearer as to who is deemed to be associated with land in accordance with tikanga Māori.[23] They confirmed that this does not require someone to verify a direct whakapapa descent relationship to a tupuna who held a customary interest in the land before 1840.[24] Assessments of association would not need to go back further than the Bill’s commencement.

The Committee also preferred that descent relationships are determined by tikanga Māori such that in deciding succession and preferred recipients under the Bill, tikanga Māori would override anything to the contrary in the Adoption Act 1955.[25] This would be a change from the current law. This would be the tikanga of the relevant whānau or hapū and in the event of inconsistency, the tikanga of the whānau would prevail over that of the hapū. Further, the Committee recommended amending the Bill to make it clear that historical relationships do not have to be proved at every link in the chain of title as this would create unnecessary complexity.[26] Finally, an amendment was recommended to clarify that birth relationships would not need to also prove a tikanga-based association. This would only be a question if the birth relationship was deemed by the Adoption Act to be “a relationship of a different kind”.

Whenua Tāpui

The whenua tāpui regime essentially replaces Māori reservations.

The Committee recommended a new clause (39A) that would give the Court the power to make an order restraining the administering body of a whenua tāpui. This would provide protection against the possibility of recklessness, incompetence, or fraud, or of an administering body acting inconsistently with the purposes of the whenua tāpui or in breach of conditions or restrictions.[27]

There was no opposition to the creation of whenua tāpui in the submissions on the exposure draft Bill. However, concerns were raised regarding the scope of what can be included as whenua tāpui, and the role, appointment process and responsibilities of the administering body.[28] The Waitangi Tribunal did not discuss the whenua tāpui regime in any significant detail in its report.[29] Many submitters on the introduced Bill also did not discuss the whenua tāpui regime. Those who did noted that whenua tāpui had a wider meaning than a Māori reservation and questioned the need for a new term.[30] The administering body has more power under the Bill than under the 1993 Act. However, this power is restricted and it is unclear what will occur in practice. The introduction of discretionary power in relation to the administering body seems to reflect a common change to the Bill to reinstate the Court’s supervisory role to safeguard against potential unintended consequences that could occur where power is held by an authority acting in relation to Māori land.

Ownership Interests

The Select Committee agreed with submitters that the clauses relating to decision-making were complex and confusing. In order to address this the members recommended simplifying this. [Proposed clauses 51A and 51B].[31] For reference purposes, the Committee also recommended inserting a clause (51C) which contains a table setting out all the decision-making thresholds.[32]

Despite good intentions, the recommendations in relation to the decision-making process may be purely cosmetic. The nature of the Bill is that it still requires users to navigate many parts to understand what is required. For example, the summary decision-making table is not exhaustive. Users will have to be familiar with specific decisions that are not listed; and the various provisions relevant to the decision-making process can be found in Parts two to five and Schedules two and four. Legal advice and a user guide will be essential along with adequate provision of services from the proposed Māori Land Service.

The second-chance decision-making process has been subject to considerable criticism throughout the reform process. This process allows for a second decision-making process to be commenced if the participation threshold required for a decision has not been met (cl 51B). This second-chance process would allow a binding decision to be made by a majority of the owners who participate in a meeting where a decision is proposed. The main criticism is that this process could allow a small group of engaged owners to make far-reaching decisions affecting all owners of the land.[33] The Select Committee recommended that any decision made using this process would be subject to review by the Māori Land Court, to ensure that it met the principles underpinning the legislation. Clause 51B of the Bill reported back now requires the court to be satisfied that the decision would help the owners to retain, control, occupy, or develop their land for the benefit of present and future owners.[34] The reinstatement of a discretionary provision provides an additional safeguard to a provision that could have undesired consequences.

Minors

The Select Committee agreed with some submitters that preventing a minor from voting if they had not had a kaiwhakamarumaru appointed to manage their interests was unduly restrictive.[35] The Committee recommended amending the provision to allow voting on behalf of the minor by a property manager who had been appointed under the Protection of Personal and Property Rights Act 1988 to manage any of the minor’s property (cl 52(1)(b)).[36]

Whānau trusts

Under the Bill, a whānau trust is the default option where an owner dies intestate and there is more than one eligible beneficiary (cl 247). This presumption received considerable criticism in submissions on the exposure draft of the Bill resulting in the inclusion of an “opt out” solution. The Waitangi Tribunal was no less disparaging, even with the “opt out” solution. The Tribunal’s report considered overall that the default setting in practical terms would be likely to result in what would effectively be a compulsory regime (p 331).[37]

The Select Committee did not address the Tribunal’s criticisms. However, the Committee did recommend inserting a provision that the Court could allow a beneficiary to withdraw their beneficial interest from the trust in exceptional circumstances (cl 70A). Exceptional circumstances, they stated, included situations such as a trust becoming dysfunctional because relationships within the whānau have irretrievably broken down (for example, as a result of domestic violence). This provision does little to comfort those who may have a whānau trust imposed on them and does not address the Tribunal’s criticism that despite the changes the regime remains compulsory in practical terms.[38] Further, the move to presumptive whānau trust is out of alignment with the rise in Māori Land Court cases partially terminating whānau trusts under the 1993 Act.

Dispositions of Māori freehold land and other land (part 4)

Submissions on the exposure draft were underpinned by a key fear: long-term or permanent alienation of land.[39] This concern was in large part due to the changing thresholds under the participating owners’ model and in particular the ability to lease land for significant periods of time.[40] The potential cost of the new disposition model, the meaning of preferred recipient, and the introduction of a “preferred entity” were also common concerns.[41]

The Tribunal Report mainly considered dispositions in light of to the removal of the Court’s discretion and the new thresholds under the participating owners’ proposed model. Although the removal of discretionary approval has been cast as the fundamental advantage conferred on Māori by the Bill because it allows Māori landowners to exercise greater tino rangatiratanga, the Tribunal considered that the utmost or untrammelled authority envisaged by tino rangatiratanga did not mean the Crown could ignore an obligation to protect Māori rights in land (p 275). Any statutory proposal that aimed to give effect to increased tino rangatiratanga had to remain protective in order for the Crown to discharge its broader Treaty obligations (p 275).[42]

The Select Committee did not discuss all of the particular concerns raised. However it did clarify the meaning of preferred recipient in order to quell the misinterpretation of clause 96(1)(c) (discussed below) and suggested amendments to the lease thresholds to reflect the concerns raised by submitters and the Waitangi Tribunal were made.

In relation to leases the Select Committee made a number of key changes:[43]

Under the Bill as introduced leases included a short-term lease of 52 years or less and long-term leases of between 52 and 99 years. Short-term leases required agreement 75 percent of the participating owners’ shareholding, while long-term leases required agreement by owners who together hold more than a 50 percent shareholding.  Licences or profits à prendre were treated similarly (52 years or less; or in the case of a forestry right, 99 years or less).

In relation to leases of 52 years or less, the Select Committee considered that there was a misalignment between the Bill’s proposed threshold for owner agreement (at least 75 percent of participating owners’ shares, regardless of the term of the lease) and the graduated threshold levels that currently apply under the Māori Assembled Owners Regulations 1995.[44] As such, the Committee members recommended amending the clause to specify graduated owner-agreement thresholds, depending on the term of the proposed lease, to better align it with the existing regulations. This change would mean that participating owners could not commit the land to a lease for a term longer than 7 years. Terms longer than 7 years would require the agreement of a proportion of all owners.[45]

The Committee also recommended that the clauses detailing licences or profits à prendre should be amended to specify graduated owner-agreement thresholds, depending on the term of the proposed licence or profit à prendre.[46]

The Select Committee recommended replacing clause 96(1)(c) in order to clarify that “associate with the land in accordance with tikanga Māori does not require a “preferred recipient” to have a direct whakapapa descent relationship to a tupuna.[47] Many submitters had interpreted it in this way and the Committee recommended replacing the clause with a more general provision such that a “preferred recipient” would encompass the children, grandchildren, and other descendants of any Māori who is an owner of the land on the legislation’s commencement date.[48]

Governance bodies

Submitters on the exposure draft of the Bill generally supported best practice governance structures. However, it was noted that the new governance model attempted to apply a ‘one size fits all’ approach. It was considered that this could be assimilatory in nature and would likely have more impact on smaller blocks than larger ones.[49] The Tribunal’s report focused less on the governance model and more on the role of the Court, and the ability for governance bodies to make significant decisions without owner agreement (p 299).[50] A number of these concerns were addressed in the introduced Bill.

Submitters on the introduced Bill were generally in support of the proposed reforms. In particular, many welcomed the reform placing greater and clearer responsibilities on governance bodies and kaitiaki. However, submitters stressed that governance bodies and kaitiaki would need to have a clear understanding of the content and implications of the new legislation, reinforcing the importance of providing adequate information and guidance about the new law before it comes into force, as well as ensuring that the proposed Māori Land Service is equipped to provide an appropriate level of support to Māori land owners.[51] There were also concerns about the cost of setting up and maintaining governance bodies; the ease with which a governance body can be set up and revoked; and the lack of a general duty to act in what the kaitiaki believes to be the best interests of the owners.[52] The Committee recommended a number of changes that address these concerns.

 The ability to revoke a governance agreement by a single owner coupled with such a low threshold (75 percent of the participating owners’ shareholding), generated significant concern among submitters because it had the potential to create uncertainty and undermine the ability of a governance body to operate effectively. The Select Committee noted the potential for disruption to governance arrangements and recommended an amendment requiring revocation to be proposed by at least 15 owners who collectively hold at least 5 percent of the beneficial interest in the land (cl 174).[53]

Similarly, the Select Committee recommend amending the proportion of owners who can apply to the court to review decisions of owners to appoint or revoke the appointment of a governance body and the proportion of owners who can apply for the Court to investigate a governance body where there is or might be serious risk to owners.[54] The amendment is that decisions must be proposed by at least 15 owners who collectively hold at least 5 percent of the beneficial interest in the land (cls 188, 216, and 218).[55]

In relation to governance body duties, the Select Committee recommended inserting an express requirement for governance bodies to hold and manage an asset base for the benefit of the owners of the land being managed (cl 202(1)(aa)) and an express requirement for a kaitiaki of a governance body to act for a proper purpose (cl 203(aa)).[56]

The Select Committee also recommended an amendment to clause 207(2) so that, if the Board had failed to acquire the intended replacement land after making all reasonable efforts to do so, it could use the proceeds from the sale to acquire and/or improve other land of a similar quality.[57] This would allow a little more flexibility.  Previously, a governance body could sell a parcel of land only if it had first found replacement land that it would use the proceeds on (clause 104(3)).[58]

Succession by eligible beneficiaries when owner dies intestate

The Bill as introduced confined eligible beneficiaries as generations descended from grandparents (cl 246). The Committee considered this an “unintended oversight in the way the Bill was formulated” and recommended that the Bill propose that all generations descended from great grandparents would be eligible beneficiaries.[59]

Dispute resolution

The Select Committee stated that submitters on the introduced Bill supported the proposed dispute resolution process, considering it empowering for those involved, and preferable to the current process of taking disputes through the Māori Land Court. Further noting that many submitters also want the process to be administered through the Māori Land Service, and to be free of charge.[60] In relation to the dispute resolution process the Select Committee made a number of recommendations.

The Committee recommended that the purpose of the dispute resolution provisions be expanded to incorporate the Bill’s core principle that disputes involving Māori land should be managed in a manner that maintains or enhances the relationships among the owners and the members of their whānau and hapū (cls 3 and 328).[61]

The Bill as introduced used the term “mātauranga takawaenga” to define the Bill’s dispute resolution process.[62] Submitters were not comfortable with this term, and the Select Committee recommended that it, and the term “kawa”, not be used. Instead, the Committee recommended that the purpose of part 9 is to assist Māori land owners and other participants in a dispute to quickly and effectively resolve the dispute in accordance with the “relevant tikanga” and “values and protocols” (cl 328).[63]

Further recommendations were made to improve and clarify aspects of the dispute resolution process. In particular the changes would ensure that proper consideration is given to matching the skills of kaitakawaenga to the nature of the particular disputes they are appointed to.[64] They would also entitle representatives to be present when kaitakawaenga who have been given the ability to make a binding decision are discussing matters with parties.[65] The amendment to clause 340 would require the chief executive to make publicly available any general instructions issued under that provision.[66] The chief executive means the chief executive of the department that, with the authority of the Prime Minister, is responsible for the administration of that provision (cl 5). The department is most likely to be Te Puni Kōkiri. General instructions are defined as instructions about the manner in which, and the times and places at which, dispute resolution services are to be provided. The instructions may also include general instructions about the manner in which dispute resolution services are to be provided in relation to particular types of issues or particular types of situations, or both (cl 340).

The recommendations may respond to submissions received on the exposure draft of the Bill before its introduction. In particular, the desired skillset of the kaitakawaenga received considerable comment from submitters. To ensure the credibility of the process, some submitters suggested that formal training, experience and qualifications in professional dispute resolution were necessary, particularly to ensure Māori would trust the process.[67] Many submitters stressed that knowledge of tikanga though important, is not enough, and importantly there is not a unified view as to what constitutes tikanga and its application.[68] The Waitangi Tribunal was particularly critical about the proposed process. It questioned whether the distinction between purely legal and factual disputes could in fact be drawn. The Tribunal considered the lack of information regarding those who would be administering the process concerning (pp 324 and 325).[69]

Overall, the Tribunal found that compulsory mediation would be inconsistent with Treaty principles, tino rangatiratanga of Māori landowners, the principle of active protection, and the approach taken in the general courts (pp 346 and 347). The Tribunal considered that the Māori Land Court (the judges acting in conjunction with registrars) is the institution that has the legal experience and expertise to decide whether a point of law is crucial to deciding a case, whether a case involves mixed points of law and fact, whether the case is amenable to settlement through mediation, and whether a case is of such a nature that immediate, urgent hearing is required (p 346). The Tribunal recommended the removal of the regime (p 346).

Although the recommendations concerning the kaitakawaenga, the ability to appoint representatives, and the access to the Chief Executive’s instructions may alleviate some of these concerns it still seems insufficient given the Tribunal’s criticism. A number of submitters opposed the dispute resolution process proposed.[70] In particular Kensington Swan’s submission considered this part of the Bill troubling and raising serious natural justice issues. Kensington Swan submitted that a simpler process allowing the Court to refer cases before it for mediation would be preferable to what could, in practice, prove to be a highly coercive process that could stymie the effectiveness of the Māori Land Court.[71] It was submitted that the circumvention of the Māori Land Court in this part of the proposed reforms has gone too far.[72] Further risks noted included delay of urgent proceedings in the Court or the potential for prolonging disputes rather than resolving them easily.[73] The dispute resolution provisions of the Bill are not duplicated in the case of any other court in New Zealand – even in the Family Court compulsory mediation applies only in certain circumstances.[74] While David Jones’ submission voiced a common concern since the first draft. The powers conferred on the kaitakawaenga.[75]

Select Committee Minority view

This minority view was submitted by the Committee members from the Labour, Green, and New Zealand First Parties. Overall they considered that the Bill would not address the problem of the under-utilisation of Māori land, nor would it address the real impediments to Māori land development (landlocked land, paper roads, ratings, and land taken under the Public Works Act). It reduces the powers of the Māori Land Court and moves to establish the proposed Māori Land Service – a new entity that has not been defined, budgeted for, or tested. They also considered that the participating owners’ model creates an unequal balance between owners and could lead to further alienation.[76]

For the minority members on the Committee, many of the submissions on the introduced Bill were concerned with the process overall, rather than specific provisions. Key points raised included:

  • The Review Panel’s choice to proceed with a Bill without assessing the extent to which the regulatory environment is enabling or inhibiting the achievement of Māori land owner aspirations.[77]
  • The criticism towards the function of the Māori Land Court and the current Act as being primarily responsible for the lack of utilisation and development of Māori land is in the view of these Committee members entirely incorrect, unreasonable, and not supported by sufficient research.[78]
  • The Bill aims to empower land owners to take more control of their land and enable the exercise of rangatiratanga. However, the Bill’s complexity requires significant time, effort, and expert knowledge to fully understand how it functions.[79]
  • The Human Rights Commission considers that the Bill should reflect and advance the principles of the UN Declaration on the Rights of Indigenous People (UNDRIP). In particular, the principle of free, prior, and informed consent reinforces the (Waitangi) Tribunal’s finding that the Bill presently does not have a sufficient mandate amongst Māori.[80]
  • The Bill is a high-risk approach to critical law reform and will undermine existing Māori property rights. Key assumptions underpinning the Bill are flawed.[81]
  • The Federation of Māori Authorities, although in support of the Bill, identified 37 problematic provisions in the Bill and six gaps including succession applications suggesting that these should remain with the Māori Land Court. They also commented on the ‘untested and as yet undefined’ role of the Māori Land Service.

Policy Plan

Much of the reform has focused around the legislation, with very little information concerning the supporting policy becoming available until very late in the piece. For example detailed information regarding the proposed Māori Land Service only became available in August 2016 when TPK released a document describing the proposed functions of that service.[82] While information regarding the potential funding to bring the reforms to fruition were only described in a document released by TPK in May 2017 that summarised the reforms to date.[83] The May update provides some important information concerning the policy plans overall. These are:

First, many of the longstanding barriers to reform, as identified Māori for some time, have been included in the Bill.[84] These include rating, rating valuation, the application of the Public Works Act, landlocked land and paper roads. The measures included in the Bill to address these issues include:

  1. A fairer system for valuing Māori land for rating purposes.
  2. Councils can develop policies for non-rating (and write off of rates arrears) of unused and unoccupied land.
  3. The two hectare limit for non-rateability for marae and urupā will be removed.
  4. Ngā whenua rāhui covenanted land will be non-rateable.
  5. The jurisdiction of the Māori Land Court will be extended to deal with the impact these matters will have on Māori land.
  6. A Māori Land Court Judge will chair the Land Valuation Tribunal when dealing with matters relating to Māori land.

Second, additional safeguards have also been included (announced in March 2017). These are:[85]

  1. Changes to the Public Works Act - so there is fairer compensation when Māori land is taken; an enhanced offer-back process for surplus land to be returned to Māori ownership; and a stronger set of criteria before Māori land can be taken.
  2. Non-rating of two papakāinga houses on marae; and council discretion to non-rate further papakāinga housing associated with marae.
  3. Improved uniform rates - two or more land blocks will be treated as a single block for rating. Currently Māori land cannot take advantage of the single unit rating system to the same extent as other land.
  4. Improved access to the Rates Rebate Scheme for owners of multiple houses located on Māori land. The changes will allow separately owned housing on multiply owned Māori land to be eligible for rates rebates.

However, the update information states that further work is required to determine how to resolve problems of access to landlocked Māori land, on developing options to resolve paper roads issues, on public works matters that affect both general land and Māori land; and on solutions for the Crown to no longer hold shares it has acquired in approximately 54 parcels of Māori freehold land.[86]

Third, details about the functions of the proposed Māori Land Service are summarised. The service is proposed to deliver four core functions:[87]

  1. Māori Land Information and Registry Services – maintaining and updating a register of Māori land owner decisions, ownership and governance information.
  2. Owner Decision Making Services – service to support owners in relation to their interests and effective governance and management arrangements for their land.
  3. Dispute Resolution Services – service to resolve disputes relating to land based on tikanga Māori.
  4. Land owners signaled the need for the fourth service, Advisory and Development Services (advice relating to the productive use of land) to support land owners to effectively utilise their land if they so choose.

However, work on the design and delivery on the service, particularly the fourth service, is not complete and is stated to be ongoing.[88] It can be assumed that more work on this will occur in the proposed 18 month time period between enactment and when the Service is set to begin supporting Māori land owners.

Fourth, the funding proposed appears to be part of the Whenua Māori Fund, which is a $12.8 million four-year fund currently in its second year, with $4.8 million having been allocated to projects already.[89]

Only a few short weeks ago the Bill seemed like a forgone conclusion. Now, there is far less certainty. With an imminent election and the potential of a different Government, there is a chance it may not proceed. Alternatively, there is also a chance it may proceed but with significant revisions. The latter option seems the most likely as there is at least consensus that changes to the 1993 Act are necessary.

Notes

[1] 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>.

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

[3] “Failure of Maori land bill ‘victory for landowners’: Whaitiri” The New Zealand Herald (online ed, Gisborne, 11 July 2017) <http://gisborneherald.co.nz/localnews/2889110-135/failure-of-maori-land-bill-victory>.

[4] Te Ture Whenua Māori Bill 2017 (126-1) (commentary).

[5] SOP 312 Marama Davidson; SOP 322 Peeni Henare.

[6] Supplementary Order Paper 2017 (312) Te Ture Whenua Māori Bill 2017 (126-1); Supplementary Order Paper 2017 (322) Te Ture Whenua Māori Bill 2017 (126-1).

[7] See Toni Love (2016) June Māori LR.

[8] Te Pāroa Lands Trust “Submission to the Māori Affairs Select Committee on the Te Ture Whenua Māori Bill 2017” at [15] – [17]; Ngāi Tahu Community Law Centre “Submission to the Māori Affairs Select Committee on the Te Ture Whenua Māori Bill 2017” at [8] – [10].

[9] Kensington Swan “Submission to the Māori Affairs Select Committee on the Te Ture Whenua Māori Bill 2017” at [9].

[10] Kensington Swan “Submission to the Māori Affairs Select Committee on the Te Ture Whenua Māori Bill 2017” at [8.3].

[11] Kensington Swan “Submission to the Māori Affairs Select Committee on the Te Ture Whenua Māori Bill 2017” at [8.4] – [8.12].

[12] Kensington Swan “Submission to the Māori Affairs Select Committee on the Te Ture Whenua Māori Bill 2017” at [8.4] – [8.12].

[13] Kensington Swan “Submission to the Māori Affairs Select Committee on the Te Ture Whenua Māori Bill 2017” at [9].

[14] Kensington Swan “Submission to the Māori Affairs Select Committee on the Te Ture Whenua Māori Bill 2017” at [9].

[15] Ngā Rangahautira “Submission to the Māori Affairs Select Committee on the Te Ture Whenua Māori Bill 2017” at [2.1] – [2.5].

[16] Ngā Rangahautira “Submission to the Māori Affairs Select Committee on the Te Ture Whenua Māori Bill 2017” at [2.1] – [2.5].

[17] Ngā Rangahautira “Submission to the Māori Affairs Select Committee on the Te Ture Whenua Māori Bill 2017” at [2.1] – [2.5].

[18] Ngā Rangahautira “Submission to the Māori Affairs Select Committee on the Te Ture Whenua Māori Bill 2017” at [2.1] – [2.5].

[19] Te Ture Whenua Māori Bill 2017 (126-1) (commentary).

[20] Te Ture Whenua Māori Bill 2017 (126-1) (commentary).

[21] Te Ture Whenua Māori Bill 2017 (126-1) (commentary).

[22] Te Ture Whenua Māori Bill 2017 (126-1) (commentary).

[23] Te Ture Whenua Māori Bill 2017 (126-1) (commentary).

[24] Te Ture Whenua Māori Bill 2017 (126-1) (commentary).

[25] Te Ture Whenua Māori Bill 2017 (126-1) (commentary).

[26] Te Ture Whenua Māori Bill 2017 (126-1) (commentary).

[27] Te Ture Whenua Māori Bill 2017 (126-1) (commentary).

[28] Te Puni Kōkiri, ‘Te Ture Whenua Maori Reform: Summary of Submissions’, September 2015 at [27] and [28].

[29] Toni Love Review of Te Ture Whenua Māori Act 1993 – Te Ture Whenua Māori Bill – status of land and whenua tāpui (Māori reservations), 1 Jun 2016.

[30] The Proprietors of Taheke 8C and Adjoining Blocks (Inc) “Submission to the Māori Affairs Select Committee on the Te Ture Whenua Māori Bill 2017” at [37].

[31] Te Ture Whenua Māori Bill 2017 (126-1) (commentary).

[32] Te Ture Whenua Māori Bill 2017 (126-1) (commentary).

[33] Te Puni Kōkiri, ‘Te Ture Whenua Maori Reform: Summary of Submissions’, September 2015, at [68] – [70] and [220].

[34] Te Ture Whenua Māori Bill 2017 (126-1) (commentary).

[35] Toni Love Review of Te Ture Whenua Māori Act 1993 – Te Ture Whenua Māori Bill – status of land and whenua tāpui (Māori reservations), 1 Jun 2016

[36] Te Ture Whenua Māori Bill 2017 (126-1) (commentary).

[37] Toni Love Review of Te Ture Whenua Māori Act 1993 – Te Ture Whenua Māori Bill – succession, 1 Jun 2016.

[38] Te Ture Whenua Māori Bill 2017 (126-1) (commentary); Toni Love Review of Te Ture Whenua Māori Act 1993 – Te Ture Whenua Māori Bill – Ownership interests in Māori freehold land, 1 Jun 2016.

[39] Te Puni Kōkiri, ‘Te Ture Whenua Maori Reform: Summary of Submissions’, September 2015, at [68].

[40] Te Puni Kōkiri, ‘Te Ture Whenua Maori Reform: Summary of Submissions’, September 2015, at [7.1].

[41] Te Puni Kōkiri, ‘Te Ture Whenua Maori Reform: Summary of Submissions’, September 2015, at [7.1].

[42] Toni Love Review of Te Ture Whenua Māori Act 1993 – Te Ture Whenua Māori Bill – disposing of interests in Māori land, 1 Jun 2016.

[43] Toni Love Review of Te Ture Whenua Māori Act 1993 – Te Ture Whenua Māori Bill – disposing of interests in Māori land, 1 Jun 2016.

[44] Te Ture Whenua Māori Bill 2017 (126-1) (commentary).

[45] Te Ture Whenua Māori Bill 2017 (126-1) (commentary).

[46] Te Ture Whenua Māori Bill 2017 (126-1) (commentary).

[47] Te Ture Whenua Māori Bill 2017 (126-1) (commentary).

[48] Te Ture Whenua Māori Bill 2017 (126-1) (commentary).

[49] Te Puni Kōkiri, ‘Te Ture Whenua Maori Reform: Summary of Submissions’, September 2015, at [13] – [16].

[50] Toni Love Review of Te Ture Whenua Māori Act 1993 – Te Ture Whenua Māori Bill – management entities, 1 Jun 2016.

[51] Te Ture Whenua Māori Bill 2017 (126-1) (commentary).

[52] Te Rūnanga o Ngāti Rūanui Trust “Submission to the Māori Affairs Select Committee on the Te Ture Whenua Māori Bill 2017” at [2.2]; Kensington Swan “Submission to the Māori Affairs Select Committee on the Te Ture Whenua Māori Bill 2017” at [21.4].

[53] Te Ture Whenua Māori Bill 2017 (126-1) (commentary).

[54] Te Ture Whenua Māori Bill 2017 (126-1) (commentary).

[55] Te Ture Whenua Māori Bill 2017 (126-1) (commentary).

[56] Te Ture Whenua Māori Bill 2017 (126-1) (commentary).

[57] Te Ture Whenua Māori Bill 2017 (126-1) (commentary).

[58] Te Ture Whenua Māori Bill 2017 (126-1) (commentary).

[59] Te Ture Whenua Māori Bill 2017 (126-1) (commentary).

[60] Te Ture Whenua Māori Bill 2017 (126-1) (commentary).

[61] Te Ture Whenua Māori Bill 2017 (126-1) (commentary).

[62] Te Ture Whenua Māori Bill 2017 (126-1) (commentary).

[63] Te Ture Whenua Māori Bill 2017 (126-1) (commentary).

[64] Te Ture Whenua Māori Bill 2017 (126-1) (commentary).

[65] Te Ture Whenua Māori Bill 2017 (126-1) (commentary).

[66] Te Ture Whenua Māori Bill 2017 (126-1) (commentary).

[67] TPK, ‘Te Ture Whenua Reform: Summary of Submissions’, September 2015, at [603].

[68] TPK, ‘Te Ture Whenua Reform: Summary of Submissions’, September 2015, at [604] and [609].

[69] Toni Love Review of Te Ture Whenua Māori Act 1993 – Te Ture Whenua Māori Bill – dispute resolution, 1 June 2016.

[70] Kensington Swan “Submission to the Māori Affairs Select Committee on the Te Ture Whenua Māori Bill 2017” at [24]; David Jones “Submission to the Māori Affairs Select Committee on the Te Ture Whenua Māori Bill 2017” at [7].

[71] Kensington Swan “Submission to the Māori Affairs Select Committee on the Te Ture Whenua Māori Bill 2017” at [24].

[72] Kensington Swan “Submission to the Māori Affairs Select Committee on the Te Ture Whenua Māori Bill 2017” at [24].

[73] Kensington Swan “Submission to the Māori Affairs Select Committee on the Te Ture Whenua Māori Bill 2017” at [24]

[74] Kensington Swan “Submission to the Māori Affairs Select Committee on the Te Ture Whenua Māori Bill 2017” at [24].

[75] David Jones “Submission to the Māori Affairs Select Committee on the Te Ture Whenua Māori Bill 2017” at [7].

[76] Te Ture Whenua Māori Bill 2017 (126-1) (commentary).

[77] Māori Women’s Welfare League “Submission to the Māori Affairs Select Committee on the Te Ture Whenua Māori Bill 2017” at [3.4].

[78] Ngāi Tahu Community Law Centre “Submission to the Māori Affairs Select Committee on the Te Ture Whenua Māori Bill 2017” at [5].

[79] Kensington Swan “Submission to the Māori Affairs Select Committee on the Te Ture Whenua Māori Bill 2017” at [3.4] and [4.1].

[80] New Zealand Human Rights Commission “Submission to the Māori Affairs Select Committee on the Te Ture Whenua Māori Bill 2017” at [23] and [24].

[81] Judges of the Māori Land Court “Submission to the Māori Affairs Select Committee on the Te Ture Whenua Māori Bill 2017” at 2.

[82] Te Puni Kōkiri Proposed Māori Land Service: Te Ratonga Whenua Māori (August 2016).

[83] Te Puni Kōkiri Te Ture Whenua Māori Reform Update (May 2017).

[84] Te Puni Kōkiri Te Ture Whenua Māori Reform Update (May 2017) at 6.

[85] Te Puni Kōkiri Te Ture Whenua Māori Reform Update (May 2017) at 7.

[86] Te Puni Kōkiri Te Ture Whenua Māori Reform Update (May 2017) at 7.

[87] Te Puni Kōkiri Te Ture Whenua Māori Reform Update (May 2017) at 8.

[88] Te Puni Kōkiri Te Ture Whenua Māori Reform Update (May 2017) at 8.

[89] Te Puni Kōkiri Te Ture Whenua Māori Reform Update (May 2017) at 8.

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