Te Ture Whenua Māori Bill

The question now is that Part 2 stand part. This is debate on clauses 12 to 44C and on schedule 2.

Tēnā koe, Mr Chair. Kia ora anō tātou katoa. As raised last night by the member Miss Whaitiri—she asked that I set out the premise of this particular part, so I will endeavour to do so and help her and her colleagues along—in particular, Mr Rino Tirikatene.

This part of the bill covers the status of Māori land and provides for the new concept of whenua tāpui. Currently, there are two categories of Māori land: Māori customary land and Māori freehold land. The bill continues to provide for these categories, however, since the focus of the bill is Māori land, the status of general land and general land owned by Māori is not provided for in this particular bill.

Māori customary land is a statutory recognition of land held by our people—by Māori—in accordance with tikanga Māori. The Māori Land Court will continue to have jurisdiction to determine whether land is Māori customary land. The bill, however, changes the court’s role in relation to other matters associated with Māori customary land. In particular, the court will no longer be able to create individual ownership interests.

Māori customary land will be held in collective ownership. If the court changes its status to Māori freehold land, the land will remain in collective ownership. This change is important. By protecting Māori customary land from disposal, the relevant provisions reinforce the principle that Māori land endures as a taonga tuku iho by virtue of whakapapa. Consistent with providing for tino rangatiratanga, the bill recognises that the mana to decide what happens with their land sits with the owners themselves. However, the bill also supports the principle of retention by strengthening protections to prevent the loss of Māori freehold land.

Parts 3 and 4 of the bill regulate owner decision-making processes and dealings with Māori land, respectively.

The CHAIRPERSON (Hon Trevor Mallard): I draw the member back to Part 2.

I am; I am just getting there. The combined effort of these parts provides a strong protective mechanism. For example, none of the critical thresholds for sale, gift, exchange, or long-term lease of Māori freehold land have been reduced in any way under this bill. The thresholds for sale remain at least 75 percent of the shareholding in the land, but, unlike the current Act, the bill enables owners to raise those thresholds up to 100 percent if they wish.

The bill also continues to protect the right of those with a tikanga-based association with the land to have first right to acquire it on a sale, and strengthens the process to protect that right under the current Act. The bill prevents Māori freehold land from being gifted to anyone who does not have a tikanga-based association with the land. The Māori Land Court will continue to have a role to ensure that these protection measures are complied with.

The whenua tāpui regime replaces, but is very similar to, the current regime of Māori reservations. Under the bill’s transitional provisions, all existing Māori reservations will be referred to as whenua tāpui. The two-step process under the current Act—requiring a Māori Land Court recommendation and a gazetted decision by the chief executive of Te Puni Kōkiri—will now be replaced by a single-step process of a Māori Land Court order, or, for Crown land, a gazetted decision by a Minister.

The bill establishes administering bodies for whenua tāpui. This aligns with reserves under the Reserves Act. It provides for a recognisable legal entity for whenua tāpui and removes the current inconsistencies where, for example, the Māori Land Court appoints trustees for some Māori reservations but not others. The purpose for which whenua tāpui may be established is the same as that set out in the current Act for establishing Māori reservations, although the language has been modernised. For example, the term “village site” has been replaced by “papakāinga housing site”.

The bill provides a pathway for marae and urupā to be owned collectively by the people they were set up for, if that is the owners’ wish. It also provides that land reserved as whenua tāpui cannot be disposed of.

Kawenata tiaki whenua provides a simple and straightforward mechanism for governance bodies and their owners to protect places that are culturally or historically important, or have special significance from a tikanga Māori perspective. Without this mechanism, they would have to go through a costly process of cancelling existing governance arrangements, seeking Māori Land Court agreements to establish a whenua tāpui over the special places, and then re-establish a governance arrangement over the rest of the land. Not only is this a simpler process but it aligns with the recognition of tino rangatiratanga. This is because governance bodies on behalf of their owners will be able to establish kawenata tiaki whenua themselves, without needing permission or approval from other outsider agencies or the court.

That gives a good overview about what is in Part 2 of this bill. I will leave it for the Committee to debate.

Can I thank the Minister for Māori Development for giving that explanation on Part 2 of this bill. I do have a few questions and I guess it is probably just to centre myself in Part 2 and I appreciate the Minister’s comments around it. There are three subparts—so we are talking about “Whenua Māori/Māori land”, “Whenua tāpui”, and “Kawenata tiaki whenua”. The Minister explained “Whenua Māori/Māori land’ ”. This subpart does define Māori customary land, disposal rules, who determines what Māori customary land is, who determines the collective owners of Māori customary lands, appointments of a kaiwhakahaere, and change of status of Māori customary land to Māori freehold land. It also defines Māori freehold land, disposal rules, how land becomes Māori freehold land, and how land ceases to become Māori freehold land. Then, of course, it goes into Subpart 2, “Whenua tāpui”—definitions of the types of whenua tāpui, the application process to become a whenua tāpui on Māori customary land or Māori freehold land or private land, and the role of the Minister for new whenua tāpui on Crown land.

So why is this particular part important to Māori land owners? Under Subpart 1, “Whenua Māori/Māori land”, I guess, like the content of this bill—and we are talking about Part 2—it is ensuring that the content is meeting what was laid out in Part 1, and we are ensuring that we are meeting those principles that many in this Committee have debated. But in terms of Subpart 1, “Whenua Māori/Māori land”, I guess, for me, I need assurances that the provisions contained in this part do not lead intentionally or unintentionally to Māori land alienation or to owners being removed from participating in making decisions on their land. So that is why this part, for me, is really important.

If I refer the Minister to subclause (2) of clause 13, “Māori customary land cannot be disposed of”, but it does not prevent the reservation of Māori customary land and cancellation. I will just give the Minister time to look at it, and I can then also get my notes so that I do not go off skew there.

So when we talk in clause 13 about “… Māori customary land cannot be—(a) disposed of;”, I just note it is interesting that subclause (2)—so subclause (1) talks about defining “… Māori customary land cannot be—(a) disposed of; or (b) vested or acquired under an Act …”, and that is very clear. But then we go to subclause (2), where we say “However,”, and so I guess when you have got absolute clauses and then you have “However,”, that seems to draw my attention. This says: “However, this section does not prevent—(a) any change in the class of collective owners who, in accordance with tikanga Māori, hold a parcel of Māori customary land, as long as the change is made in accordance with tikanga Māori: (b) the reservation of Māori customary land as a whenua tāpui, the cancellation of the reservation, any vesting related to the reservation or cancellation, or the grant of any lease under subpart 2:”. So if I then go to Subpart 2 and then I will draw the Committee’s attention to a reference in Subpart 2, “Whenua tāpui”, we find the statement in there, in clause 13(1), that talks about “… Māori customary land cannot be—(a) disposed of;”, and then it goes into, I guess, the exceptions.

The question that I have for the Minister is about ensuring that when we have that “However,” point made up in subclause (2) of clause 13, it does not interfere with the objective in subclause (1) of clause 13. I hope that makes sense. That is a question, anyway, to the Minister that the state of interest in Māori customary land cannot be disposed of, and the second section goes “However,”. So I just wanted some assurances from the Minister that subclause (1) of clause 13—[Bell rung] Mr Chair.

The CHAIRPERSON (Hon Trevor Mallard): I am just going to interrupt the member for a second. I will give her back the call, but I am going to seek the leave of the House to amend the votes that were taken. There was some confusion as to whether we were voting on the amendment or on the motion, and what I am going to seek the leave for is for the Ayes, without a division, to agree to the amendments—so the Committee was unanimous about the amendments—but on the question that Part 1 be agreed to, the Ayes are 52 and the Noes are 57. Is there any objection to that process? There is none. That is it.

We have all recognised that this is a complex bill, so the first question was around clause 13. It was about ensuring subclause (2) does not prevent the achievement of what subclause (1) is stating.

Then I go to clause 14, “Court may determine whether land is Māori customary land”. Again, it lays out the role in terms of the court in clause 14. Then we go to clause 14(2)(b), and this is where I just wanted clarification from the Minister—“on application by—(i) any person with an interest in the matter;” of Māori customary land. So does that mean anybody? Then we talk about “(ii) the Register-General; or (iii) the Minister.”, and I guess I just wanted some assurances about when we are putting up applications for the court to determine whether a piece of land is customary land.

The question I have is when we have any person with any interest, I guess I wanted some assurances, and if the Minister had any examples to actually show what are these instances—it could be a simple explanation. It could be, you know, the land gifted from the Crown and, therefore, they want to make an application, but then my question in my head is that if that was the scenario—and possibly a scenario where the Crown is gifting land to a body of people and, therefore, we have got to put an application to the Māori Land Court—then why would we not just give it to the landowners’ entity, as an example? So I just wanted to make sure that I understood what clause 14 was.

If I go to clause 15, “Court may determine class of collective owners of Māori customary land”, again, as I go down to subclause (2)(b)(ii), I am highlighting—

💬 Hon Te Ururoa Flavell: What was the section again?

So section 15, subsection (2)(b)—

The CHAIRPERSON (Hon Trevor Mallard): Clause.

Oh, clause 15(2)(b)(ii), where we have got “the Minister.” there. It says, in clause 15(2), “The court may make the determination—(a) on its own initiative in any proceedings;”, so we would understand why a court would make those determinations. Then paragraph (b) goes into “on application by— … Māori [persons] or group or class of Māori [persons]”, so that, to me, makes sense. Then we have got “or (ii) the Minister.”, so I would like to hear from the Minister why he would be involved in putting an application to the Māori Land Court to determine whether a piece of land was Māori customary land. So that is clause 15.

Then I go on to subclause (6) of clause 15, where we are talking about appointing “a kaiwhakahaere for the land in accordance with section 17, if there is not one already.” I go to clause 17, “Kaiwhakahaere appointed for Māori customary land”, and I draw the Minister’s attention to clause 17(2)(d), where we talk about anything else for which a kaiwhakahaere might be appointed under another Act. I guess the question I have for the Minister is whether he can give an example where that may occur. [Interruption] Carry on? OK. So that is clause 16, in terms of the appointment of a kaiwhakahaere, and I will just reference the Minister’s attention to clause 17, where we talk about the kaiwhakahaere being appointed under another Act—if he could give an example of that Act.

Going on to clause 18, “Trespass or injury to Māori customary land”, again, in subclause (2)(b)(ii), we talk about “the Māori Trustee, if there is no kaiwhakahaere appointed for the land and there is no evidence that the Māori Trustee is unauthorised to act.” I guess I wanted to get a clarification from the Minister that when we talk about “there is no evidence that the Māori Trustee is unauthorised to act.”, what does that particular provision mean?

I have got quite a few questions on the clauses in this part, but I think I have given the Minister enough questions around the first clauses in Part 2, Subpart 1—talking about “Whenua Māori/Māori land”, about Māori customary land, about the appointment of kaiwhakahaere, and about who actually can put up the applications to the court, and we talked about other people with interests, including the registrar-general and the Minister. I am just asking for some clarification from the Minister on those occasions, so that we understand the ability that we are debating under this Subpart 1 of Part 2 is fully understood. Thank you.

I am just now going to place absolutely on the record, for the avoidance of all doubt, that Part 1 as amended stood part, on a vote of 62 to 57—just to make sure that there is no disagreement with that. Thank you.

The question was put that the amendment set out on Supplementary Order Paper 311 in the name of the Hon Te Ururoa Flavell to the proposed amendment set out on Supplementary Order Paper 279 in the name of the Hon Te Ururoa Flavell to Part 2 be agreed to.

Amendment to the amendment agreed to.

The question was put that the amendments as amended set out on Supplementary Order Paper 279 in the name of the Hon Te Ururoa Flavell to Part 2 be agreed to.

Amendments as amended agreed to.

.