Te Ture Whenua Māori Bill

The question now is that Part 3, which is debate on clauses 45 to 95 and schedule 2, stand part.

Part 3 of the bill addresses ownership interests, provides for a collective ownership model, provides a framework to support owner decision-making, provides for whānau trusts, and replaces the kaitiaki trust in the current Act with the kaiwhakamarumaru model mentioned earlier in the debate. The existing regime for Māori land has resulted in huge fragmentation of ownership, so that today there are approximately 2.7 million ownership interests in Māori freehold land. To put this into context, 5 percent of New Zealand’s land area has approximately 2.7 million ownership interests, while the other 95 percent has approximately just 1.7 million ownership interests. The number of owners for each parcel ranges from one through to more than 14,600, with an average of just over 98 owners per parcel, so this represents a unique set of challenges and has contributed to significant disconnection of current generations from our land.

Part 3 addresses the effect of fragmented ownership by allowing owners to collectivise their ownership interests and making it easier for owners to set up trusts that allow whānau to collectively hold and manage their land interests. Under the bill, owners can establish a whānau trust themselves by simply registering a declaration of trust, instead of having to make an application to the Māori Land Court, attend a hearing, and have the court decide whether the trust should be established, as is currently the process. This part recognises the principle of mana motuhake, and shifts the controls more to the owners by making it easier for them to make decisions about their land on their own rather than apply to the Māori Land Court to make the decision for them, and that sort of discussion was hugely applauded in a number of the wānanga that were held as we took it around the country.

Owners of Māori freehold land with a governance body are able to create their own decision-making processes. If a decision-making process is not included in the governance arrangement or if the land is not managed by a governance body, the bill sets out a default process. This process has been carefully designed to ensure as many owners as possible are aware that a decision is to be made and will have the opportunity to participate. The processes for decision making are clear and transparent. Owners will be able to attend meetings, as I said earlier, in person, via a proxy, via a telephone, internet technology such as Skype, and online voting. This will make it easier for owners to live away from their whenua but still participate in decisions about their lands.

The bill provides that decisions affecting the ownership and retention of Māori land must have the agreement of a minimum threshold of all of the ownership interests in the land. However, other decisions can be made by owners who participate in the decision-making process. To put this more simply, the decisions about what happens to the land must be made by all owners, while the decisions about what happens on the land—such as appointing a governance body—can be made by participating owners. This is an important distinction that, unfortunately, many of those who have criticised this aspect of the bill have not necessarily appreciated.

The participating owner model addresses practical difficulties associated with decision making. For example, it allows a binding decision to be made by the majority of the owners who participate in a meeting where a decision has been proposed, even though the participation threshold for the decision has not been met. This second-chance mechanism cannot be used for decisions about what happens to the land, such as the sale, gifting, or exchange of parcels of land.

The participating owner model contains sufficient protections to ensure that a small group of owners are not able to hijack the process and dictate to the majority what happens to their land. These protections were strengthened by the Māori Affairs Committee, which included a requirement that the Māori Land Court must confirm decisions made through the second-chance mechanism, and specified that a decision-making process to revoke a governance agreement must be initiated by a greater proportion of the owners.

Part 3 also replaces the jurisdiction of the Māori Land Court to establish kaitiaki trusts for owners under disability with a new jurisdiction to appoint kaiwhakamarumaru to manage certain property of an owner needing protection—namely, owners under 18 years of age, or owners who wholly or partly lack the capacity to manage their own affairs. These measures will ensure that owners who lack that capability can participate in decision-making processes about their land through kaiwhakamarumaru.

The kaiwhakamarumaru regime is modelled on the provisions for the appointment of managers under the Protection of Personal and Property Rights Act 1988. As a consequence, there are some differences between the new regime and the current model. For instance, under the current model, ownership of the person’s land interests vests in the trustees of the kaitiaki trust. Under the new regime, a kaiwhakamarumaru will not become the owner of the person’s land interests, as I explained a bit earlier. In light of that discussion that I presented to Miss Whaitiri, this is another attempt to ensure that we set out all of the provisions in this section, so that they are well documented for Hansard and into the future.

Again, thank you to the Minister for his explanation on Part 3. I just want to address a couple of clauses in Part 3. The first one is clause 47, “Rights of owners”. If we go to clause 47 it spells out: “(1) Every owner of Māori freehold land is entitled—(a) to engage in decisions relating to the land: (b) to be informed about the land, including its use and management: (c) to be heard in any proceedings relating to the land: (d) to be recognised and acknowledged as an owner of the land.” Then it goes into subclause (2): “However, the rights are subject to any provisions of Parts 1 to 9 [of this bill] … For example,— (a) if the land is managed by a governance body,—”. I was listening to the Minister’s explanation of this part and my question is around the remedy of the rights of owners if they feel that their rights, as described in clause 47, are at all impacted. So can he draw our attention to the rights of the owners if they feel that they are not able to participate as spelt out in this particular clause? So that is clause 47.

I then want to go to clause 51A—the Minister touched on the participation thresholds.

💬 Hon Te Ururoa Flavell: Sorry, what was that clause again?

Clause 47, “Rights of owners”.

💬 Hon Te Ururoa Flavell: Yes, and this one?

So you have got the list there in the first—[Interruption] Yes.

Sorry, before I leave clause 47—subclause (3), where you talk about “does not limit or affect other rights that owners may have at law or in accordance with tikanga Māori.” So, again, it just raises what previous speakers have said about how that would be interpreted, how landowners would activate that, and whose tikanga it would be talking about in terms of that particular clause. So that is clause 47.

Going on to clause 51A, the Minister touched on the participation thresholds, and it is clearly spelt out in the bill, in terms of—if there are fewer than 10 owners, then all owners must be involved; between 10 and 100 owners, at least 10 owners, with at least 25 percent or more shares must be involved; between 100 and 500 owners, at least 20 owners, or 25 percent of all shares must be involved. For me, my experience with Māori land holdings is that you are likely to have more than 500 owners of a block of land, and the decision-making threshold is at least 50 owners, with 10 percent or more shares. The question I have for the Minister—and I note the point around fragmentation; there could be more than 500 owners. We could have up to 1,000 owners. We could have up to 2,000 owners of a block of land, and for this threshold you need only 50 landowners who collectively have 10 percent of the shares.

So the question I have is: if we had a scenario of, say 500—let us just keep it close—what happens to the other 450 owners? If we take the 10 percent shares, what happens to the 90 percent shares? So, again, it is a safeguard for those 450 owners in that particular threshold and the 90 percent shareholders. I think that is something that we could ask the Minister. Those owners who fall in that category—the 450 I am talking about, and the shareholders who collectively have 90 percent—what remedy do they have, to have assurances that they do not lose what we have spelt out in Part 3 under clause 47 “Rights of owners”? So, for me, that is that one.

Of course, I just want to touch on—in the time I have got left—clause 51B “Second decision-making process”. The Minister did give an explanation of it, but, as I read it—and I do understand that ultimately the Māori Land Court has the final say in terms of ensuring that the process is right. I will come back to that.

I want to follow on from my colleague Meka Whaitiri because I think the issues that she raises are very important. One of the things for the Māori Affairs Committee that we understand, having processed so many Treaty settlements, is the actual participation rates of people in decision making per se. Therefore, how do we encourage Māori owners to make decisions around their land interests, to be able to be a part of improving the utilisation of their land? I question aspects of the approach in so far as how complex it is. We discussed this at length within the select committee. The participation thresholds—we wanted to ensure, Minister, as you are aware, that the highest participation threshold was around the disposition or sale of Māori land. But we really grappled with just how complex it is around the range of decisions, the varying participation rates, and trying to ensure that Māori land owners had good information around this.

We hazarded a guess that it is going to come down to the way in which the Māori Land Service works with Māori land owners to ensure that they are really well aware of their rights and interests as decision making occurs. So clause 47, as commented by my colleague Meka Whaitiri, is a really important clause because it sets out those rights in a somewhat clear way. But as we progress through the bill and you start to understand how the decision-making process takes place, the potential positive impact of a second decision-making mechanism—I think it has been improved because of the select committee. But the way in which it works to improve the transparency of decisions and the participation of owners in those decisions is yet to be tested.

So it would be useful for the select committee because the wider conversation of the role of the Māori Land Service in assisting owners to participate in the decision-making regime, to understand it as they are participating in it—it would be good to get a steer from you about how that is intended to take place. Again, we grappled with the extent to which it needed to be—clearly—in the legislation, and are of a view that it is a good thing that it is.

I wanted to also comment on the issue around minors not being counted as participating owners and the role of kaiwhakamarumaru, which I alluded to earlier, and ensuring that the obligations of a kaiwhakamarumaru are representing the best interests—the whakapapa interests—of those under whom they are exercising decision-making responsibilities. It may or may not have been a big issue as you considered this on the way through, so I do not want to make a mountain out of what might be a molehill, although we accept that when we considered the role and responsibility of kaiwhakamarumaru, we understood, primarily, the aspects relating to minors and those not able to vote themselves.

The other area that I thought was useful to comment on—it is one that you raised in your opening comments, Minister—is around the small shareholding interests and needing to amalgamate. If ever there was any example of the onerous aspects of trying to go to a whole lot of meetings to get a whole lot of whānau to agree to amalgamate their interests for a development purpose, it would be around the East Coast and the projects that were led by Chris Insley to try to get, I guess, the economy of scale and the collective ownership focus on a broader development opportunity. It was done, but it was done with much difficulty, as I understand it. So that approach to try to consolidate lots of little ownership interests I think would work well. But, again, on the way through it is about giving assurance to those small owners that their interests and visibility over the decision making are actually really important, and that they are not going to kind of get superseded in any shape or form.

I know that I am kind of tackling these at a very global level, but I do know, Minister, that you have a good knowledge of these particular issues, and I would hope that you respond to the questions.

Tēnā koe e Te Heamana o Te Komiti o Te Whare nei. Otirā, tēnā tātou. Thank you for the opportunity for this first contribution on Te Ture Whenua Māori Bill.

It is a complex bill, and I have had some questions and contact from constituents who are concerned about it. I just wanted to make a quote around the complexities of it, from the Māori Land Court judges, who said the complexity of the reform risks parties lawyering up, which will change the dynamic of Māori land disputes. And I think my questions on this part are relevant to the complexities of it.

My question is because I was contacted by a trustee of a reserve that has been set up under the Māori Purposes Act 1954, and I am assuming that the interest of that particular land will come under the Part 2 arrangement as whenua tāpui. Given that and also the ownership interest in Māori in this part of the bill and the threshold required, under that particular trust, it is held on behalf of a large number of people; 40,000 in fact. So the threshold under this particular part would be incredibly onerous on the trustees for that particular trust. When they asked me, I said “I don’t know.”, but I feel obliged to actually ask the question. It may or may not even be relevant; I just do not know, but I refer to the comments from the Māori Land Court judges—and this is a very complex piece of legislation that removes an entire Act and then replaces it.

On top of that, we have added into it over—from my count, anyway—60 substantial changes since the select committee. In that context, these parts have not been scrutinised on the changes since the select committee, and so the only avenue that I have on behalf of my constituents is to ask the questions at this stage of the Committee of the whole House. So I think it is really important that we do get answers to these questions. To be honest, there is probably a simple answer, but I just do not know. If we had had the opportunity to scrutinise it through the select committee, then these questions could have been answered quite quickly. And that is probably the main point of this contribution to this part of the bill—I tried to get up earlier—which is that it has not been scrutinised to that extent.

So, if we think about the contributions and the consultation that has taken place on this part and all the other parts, from the first consultation to the time it left the select committee, there have been at least 16 or 17 versions. I do not know; it could even be more. The fact of the matter is, you know, the constituents who have contacted me, I believe, deserve to have those answers, and it is a great shame that they have not been able to be answered through a more efficient use of Parliament’s time. So that is my contribution on this, and those are my questions. Thank you.

I have just a couple of quick points, which I am genuinely wondering whether the Chair will allow. So I will start by saying that in Part 3, as through the whole bill, we are referring to a number of tikanga phrases and concepts—so they are not just kupu—like kaiwhakamarumaru, kaiwhakahaere, whenua tāpui, and kawenata tiaki whenua. So I wondered whether the Chair would just allow me—I did not get to make my point in the earlier parts—to just make the point that we are inserting, right throughout the whole bill, these tikanga Māori terms and concepts.

While I personally do not have a huge problem with having a go—and I have talked to my colleague Marama Fox about this—at seeing how and testing how we incorporate Māori law into statute law, I will make an acknowledgment of the fundamental view, also, that is quite cynical and quite wary of that. I think it is important, as we continue to debate these terms through the bill, that I need to acknowledge the valid cynicism, purely because tikanga Māori, by its very nature, operates and begins from a whole different standing of leadership. And what we are doing, which we have done for a long time, I acknowledge, before this bill, is trying to translate or insert a whole different concept of living and maintaining and establishing relationships into a Crown and Western law system that starts from an entirely, almost, opposing concept of leadership and relationship to people and land. So I will only do it in one part, because it does occur through the whole bill, but I will take the opportunity in this part, as I am looking through, to just make that point and at least have the Green Party in the Hansard record as acknowledging what I think is valid cynicism and being fearful and wary of inserting our amazing concepts and tikanga into law.

Secondly, this is just a small point, and it is really a genuine question, because I do think it is worth continuing to raise that this is a big, thick, telephone-book bill, and this is a big, thick Supplementary Order Paper, so I am genuinely left asking to clarify. We are in Part 3, I think, going on to clause 51C, where it talks about “Summary of specified majorities of owners who must agree to [certain] decisions about Māori freehold land”. So, essentially, clause 51C presents a schedule of those thresholds for how certain decisions are made. Clause 51C goes through, for example, the required levels of owners to reach those agreements. It is different depending on the decisions. So, for example, disposition of land has a certain, different threshold to boundary adjustment—just two quick little examples, so I am clear about what I am asking. Earlier, at the beginning of this part, the Minister for Māori Development, I believe, made the comment that the thresholds for making different decisions remain the same, or are improved or increased, but the decision-making thresholds have not been reduced. I just want to get some clarity, and it may not be a simple answer, because I take on board what my colleagues raised about the different scale. So I would appreciate—and I also apologise—some actual clarity about that.

Reference was made to this bill being a complex one. Can I say that in this part of the bill, particularly around clause 51, I think is an example of the complexity that a number of commentators have made reference to. For me, it is the issue of the second-chance meeting. While the Minister for Māori Development made reference to the fact that all owners need to be involved, the issue of a second-chance decision-making process will contradict that comment, because it then allows for a fraction of the total ownership to make a decision on behalf of the ownership. That point was certainly highlighted by the Māori Land Court judges themselves, where they say that the participating owners’ regime will mean that a minority of owners who can satisfy the bill’s participation thresholds will be able to make decisions with binding effect on all owners, without any court process where the interests of the owners as a whole are assessed. Those decisions can be made outside of any governance structure, meaning that the owners owe very few, if any, duties to their fellow owners.

Furthermore, the second decision-making process—again, in clause 51—will mean that if an initial meeting does not meet the participation threshold and another meeting is held within 20 working days, there is no participation threshold whatsoever. So that, for me, does not augur well for many of the shareholders, particularly those who are living away from home, and we know that it is intended that this clause will allow for the participation of those who are not living at home and are living away in other areas—in fact, in some cases, in other countries. My feeling is that the possibilities of a second decision-making process can alienate those particular shareholders from this decision process.

The bill itself goes on to identify the circumstances in which this decision-making process can take place. It identifies how owners of Māori freehold land will be required to make decisions. However, if the participation threshold for a decision is not satisfied, and I quote from clauses 51(8)(a) and (b), “a second decision-making process for the decision may be commenced within 20 working days after the day on which the level of owner participation in the first decision-making process was calculated (which may be the day on which voting on the proposal closes or the day on which owners consider the proposal, if the proposal does not proceed to a vote because the required quorum of owners is not present);”. In subclause (8)(b), “there is no participation threshold for the second decision-making process, as long as—(i) the applicable decision-making process is followed as if the decision were a new decision;”. Subclause (8)(c) goes on to say that “if the applicable decision-making process includes a separate quorum requirement, a failure to satisfy the quorum requirement does not invalidate the decision.” That does provide some concern for me. In terms of the use of the words “a complex bill”, I think that this provides for that issue of complexity.

Just in the time that we have available, I want to clarify a couple of matters. To help the member who just took his seat, Pita Paraone, I suggest he might be reading clauses from an older version of the bill, which is probably not going to help.

Just to clarify the second chance issues that have been raised by members regarding clause 51B, the clause that has been mentioned earlier—I just note for the Committee that the second-chance provisions cannot be used for decisions that require a threshold of all owners. They can be used only for participating owners, and, actually, the Māori Affairs Committee added a requirement for court confirmation. I hope that clarifies that issue in respect of the second-chance issues.

Marama Davidson asked the question about thresholds being reduced. I can confirm to the member that they are not reduced. The current thresholds are those that currently sit within the Act right now, but, as I said in the earlier contributions, those thresholds can be lifted on the basis of what the trust cum the owners wish to do. They can take it up to 99 percent, 80 percent—whatever. It cannot go under that threshold ever, and that is documented within the law. OK? So it strengthens, again, the provisions in respect of the retention of the land.

She also raised an issue in respect of the use of Māori terms in law. I mean, of course the use of kupu Māori in law is not new. We have it in Te Ture mō Te Reo Māori and Te Pire mō Te Reo Māori, we have it in fisheries legislation, and we have it in Treaty settlements, so a precedent has already been set in respect of the use of Māori language in this House and in law. It is not new, and, as I said earlier to the member and to the Committee, we took careful consideration to think about those concepts.

In the end, as has been mentioned by all of us, our tikanga is our tikanga. Ko te āhuatanga ki a Ngāpuhi he rerekē anō rā ki te āhuatanga ki a Te Arawa, ki a Ngāti Raukawa, ki a Ngāti Porou rānei. Kei tēnā iwi, kei tēnā whānau tōna tikanga, kei tēnā hapū o roto i te āhuatanga o tētahi iwi te tikanga o roto i a ia.

[The situation as it relates to Ngāpuhi differs once again from that of Te Arawa, Ngāti Raukawa, or Ngāti Porou. That tribe and that family has its own tradition, that subtribe within the circumstance of a tribe the tradition within itself.]

We are sometimes a little bit different from what Te Arawa collectively believes and thinks. Our tikanga is our tikanga, and that, I believe, is one of the strengths of this legislation, because it allows whānau, hapū, iwi, rūnanga, or whatever other body to operate by our tikanga. I am hoping that it is about time we recognise that a tikanga has some place for us to be able to do the decision making, and not necessarily have it always legitimised by law, because it is our tikanga. This is at the forefront of this legislation: allowing our people to make decisions in a way that is right for us.

I am fairly clear, as Pita Paraone talked about, that when we went up north and had the discussion about, I think it was version No. 4 or 5, they had a particular tikanga at the time. It was not necessarily too friendly. In fact, even within the hall there was a different tikanga about how everybody respected each other and so on and so forth. Be that as it may, that is what we operate by as Māori, and surely, utilising our land in a way that we believe is appropriate. Me whai tātau i ō tātau ake tikanga. [We must follow the tradition that applies to us only.] That means that we are not locked down to a generic tikanga base called “Māori”. I runga i te āhuatanga, he rerekē te kōrero o Te Tai Tokerau ki tērā o Te Tai Rāwhiti, ki tērā iwi, ki tērā hapū.

[And so based on the situation, Northland talk will differ from that of the East Coast tribe and subtribe.]

I hope that that gives some assurance to the member that we are in the right zone, and the use of Te Reo Māori—ēhara i te mea he āhuatanga hou, karekau, i roto i ngā āhuatanga o Te Whare Pāremata e noho nei, ko te āhuatanga o Te Reo Māori e kōrerotia ana [it is not as though it is something new, far from it; in circumstances relating to Parliament as it sits now, the situation concerning the Māori language is being addressed].

Tēnā koe, Mr Chair. Interesting—the Minister talks about tikanga ki tēnā hapū, whānau, and iwi, and the ability for Māori to be able to utilise that, and I just want to quickly touch on something. Why, then, in this particular bill, does the court have the ability to appoint a kaiwhakahaere? The interpretation in the bill of the “kaiwhakahaere” is actually quite far removed from whānau involvement, but we will get to that part a little bit later on. [Interruption] According to this, Minister Flavell, it is actually appointed by the court, and later on it then says that the kaiwhakahaere does not have to have the involvement of whānau. But, like I said, we will get to that one a little bit later.

People such as Ngāpuhi, we are a victim of our own success—our ability to breed. I can tell the Minister that, in fact, in his own electorate, one in three babies born is Ngāpuhi. Hey, that is just the strength of Ngāpuhi. So, as a result, we do have this tīmokamoka, which is the Māori word about a fragmentation of shares.

I want to commend in this particular part of the bill, Minister, the ability for whānau trusts to be able to be established to make sure hei whakatōpū i ngā hea [to amalgamate the shares]. I think that is a good thing. But I do have just one question with regard to that, Minister. It is just for clarification purposes. It is about clause 59(3)(d), which states “other property, including other land.” I just want a bit of clarification, Minister, around exactly what “other property, including other land.” means. The clause is quite clear about the beneficial interest in the freehold estate in one or more parcels of Māori freehold land—I understand that—and the beneficial interest in one or more individual freehold interests in the freehold estate in one or more parcels of Māori freehold land, and so on. But then it gets to paragraph (d), and it says “other property, including other land.” Are we talking about private land ownership, separate from Māori shares and separate from Māori freehold land ownership? I wonder whether that also includes private property, as it states there—“other property,”.

So I just want a little bit of clarification, but I do want to commend the Minister for this particular part of the bill, because it is an important thing. For whānau who wish to collect all of the shares as a result of “Our grandmother had 1,000 shares, and now she has almost 1,000 mokopuna, and so each one gets however many shares.”—you do the maths—

💬 Marama Fox: One.

Well, no, because she might have had children, and the children are still alive—ah. So you do the maths. It is important to make sure that you bring it together, but it is more important that there is a mechanism for that process through this particular bill, because the experience of Māori land owners—certainly in Ngāti Hine, which this bill has a serious effect on—has been that it is actually quite difficult to establish whānau trusts to do that. So I would like just a bit of clarification around that, please, Minister.

I do want to go back to clause 51A, and it is the bit about the thresholds. It would have been heard in the count of the votes earlier that maybe my maths is not the best, but I do want just a little bit of clarification. In clause 51A(3)(b), it says that if “there are more than 10 but not more than 100 owners,”—straightforward—“there must be participation by at least 10 owners whose individual freehold interests total a 25% or more share in the parcel:”. Is that suggesting that 10 or 11 owners can come together out of 15 shareholders across the entire block, yet the entire one owner, or the final four in this particular instance, who holds the majority of the shares—say, 74 percent of the shares—can still be overturned by a smaller number of shareholders who actually own, collectively, a smaller percentage of shares?

That is a serious issue—to think that if there are more than 10 but no more than 100 owners there must be a participation of at least 10 owners. So 11 of those people can come together in a 20-person shareholding and individually they might have small shares, but collectively, with 11, they will have 25 or 26 percent. That is of real concern because the remainder of the shareholders actually own close to 74 percent of the share.

So I am just asking for some clarification around those particular numbers, with a particular focus on—while I understand the intent of these types of mechanisms, the reality on the marae of, say, the Ngati Hine Forestry Trust AGM, according to these kinds of numbers, these thresholds, and these requirements, almost requires genius computer applications just to crunch these numbers to get through the process of an AGM in 1 day. So I am questioning here—while I understand the intent, I wonder whether the Minister can actually explain a little bit more about the roll-out and its application on the marae. When you have got owners and beneficiaries numbering approximately 4,500, you get a high participation rate of—sorry, Mr Chair—

I apologise for interrupting the member. The time has come for me to report progress.

Progress to be reported presently.

House resumed.

The Chairperson reported progress on the Appropriation (2015/16 Confirmation and Validation) Bill, and progress on Te Ture Whenua Māori Bill.

Report adopted.

The House adjourned at 9.56 p.m.