Te Ture Whenua Māori Bill

It seems like so long ago that we were actually debating this particular bill as the Committee of the whole House.

💬 Pita Paraone: Why the hurry?

That is a relevant question. Why the hurry, and it is clear, then, given the motion put on the floor by my colleague here, denied by the Minister sitting on the other side who knew nothing about the particular request—given some of the intense debate that took place over Parts 1 and 2.

To Part 3, clause 48: the defining class of collective owners. I just have some questions, and a bit of clarification is sought from the Minister in the chair, Te Ururoa Flavell, on this particular matter. “Conversion to collective ownership of Māori freehold land”, clause 48(3), says: “The decision must define the class of collective owners in 1 of the following ways:”. Clause 48(3)(a) is very straightforward: “as the named persons who, immediately before conversion, were the living owners of the land …”—that is straightforward to me. But clause 48(3)(b): “as named persons who are associated with the land in accordance with tikanga Māori, and their descendants, as long as the class also includes every person described in paragraph (a):”—as I mentioned, paragraph (a) is very straightforward to me.

So the question to the Minister in the chair is: does he or do his advisers see any issues with this particular clause 48(3)(b), in so far as we have mentioned this word—I have mentioned this word in the Chamber many times on this issue around the fragmentation—tīmokamokatanga, so, the fragmentation of particular shares in relation to an association “with the land in accordance with tikanga Māori.” Those may not necessarily come from those who were the original owners or the ancestors mentioned as collective owners of Māori freehold land, but, by way of tikanga, in reference to ahi kā, actually can be named, according to this—and this is just my understanding of it, and I ask for some clarification from the Minister in the chair around the particular ownership around that, with regard to “named persons who are associated with the land in accordance with tikanga Māori.”, once again, the reference being towards the tikanga of ahi kā.

The next part I want to raise is in Part 3, clause 49 “Effect of conversion to collective ownership”. Once again, this is a question of seeking clarification. Clause 39(3) says: “If any beneficial interests in the parcel were held under a whānau trust and the trust has no other trust property, the trust is terminated on the date on which the beneficial ownership is vested in the class of collective owners.” I know, as a Māori land administrator in the past, that many whānau have actually sought to collect their shares together to put them into whānau trusts. In fact, if you read the list of beneficiaries just for the Ngati Hine Forestry Trust, for example, there are plenty of examples in there around whānau who have decided that fragmentation of their particular shares is actually devaluing the shares, if you like. So they did what they call whakatōpū; they brought it together under a trust. Is this particular regime saying, then, that once the conversion is completed those trusts are no longer relevant, that they become void in this discussion? Because, if that is the case, there are obviously concerns that we have—and I have, even as a descendant of some of those trusts; a beneficiary of some of those trusts—around the compliance for whānau.

What does that mean? We know, having set up those trusts, that the compliance issues involved with lawyers, with courts, and with simply organising whānau to get together to discuss this particular issue have proven to be quite difficult. So the question here is: once this conversion happens and those trusts become no longer relevant in the discussion of the collective ownership of Māori freehold land, then what does that mean for the whānau? What does that mean for compliance issues for that whānau to become relevant in the discussion of collective ownership of Māori freehold land, and what does that mean for them? But also, more importantly, as a collective in the entire ownership of the Māori freehold land—what are the implications for them, in respect of that? Is it a case of the whānau having to organise themselves to get their stuff sorted, or is it a case of the actual entity that is put in place to administer this land—is it their responsibility to make sure that they engage whānau in a fair process to make sure that their interests are still represented, given the fact that whānau had already come together to make sure that they were able to protect those parcels of land? So those are two questions I have for the floor and for the Minister in the chair.

I want to come now to Part 3, clause 51, under the title “How owners of Māori freehold land make decisions”. Clause 51 is “Decisions by specified majority of owners of Māori freehold land”, and my concern here is around the weighting of shares given to Māori land owners. The concern there is, for example, when the Ngati Hine Forestry Trust in the 1970s and 80s allowed whānau to put their land into trusts to make sure that it was administered for the benefit of all, we know that for many whānau who put large, vast amounts of land into that particular trust, the weighting of shares given to them was less than the actual value of the land that was committed to the trust for administration. That might sound like, perhaps, there is an error in the formula, but what we have seen over 30 or 40 years of administration in that trust is that, I guess, it is a failed democracy, if you like.

What we see are constant situations of large shareholders, regardless of the original landholding that went into the trust, actually being the tail that is wagging the dog—being the tail that is wagging the dog. That is of huge concern for many shareholders. For some who did not quite get the time to put their particular shares into a trust, to have a stronger voice in the administration of that particular land—that is a concern for them. It is also a concern for those who failed to do that and have seen the fragmentation of their shares. So that question, once again, is around the decisions of a specified majority of owners of Māori freehold land, and the weighting formula that was, I feel, discriminatory, many years ago through the 1970s and 80s and into the 90s, and even in more recent times, and that does not give a fair weighting to, actually, the contribution that they have made by way of land and resource to the administration of the trust.

So those are the three questions I have for now on this particular part. I will take my seat. Tēnā koe e Te Heamana.

Tēnā koe, Mr Chair. Tēnā koe e te mema i tū i mua i a au me te āhuatanga o ngā pātai i whakatakotohia ki roto i tō tātau Whare Pāremata i tēnei wā, ka ngana nei au ki te whakautu i ō pātai.

[Thank you to the member who got up before me and the circumstance of the questions put forth in our House at this time, I will attempt to respond to your queries.]

I would like to sort of take the opportunity as early on as possible to respond to some of the issues that were raised about Part 3 the last time we debated. Some of the members have questioned a few things, so I will hopefully try to iron those out and give a response to Mr Henare.

Some members have questioned, as Mr Henare did, the bill’s participating owner regime and the thresholds for participation. This is absolutely fundamental to Part 3 and to the bill as a whole. The participating owner regime is the mechanism to give the owners the say about what happens on their land. It is the mechanism that enables us to replace the paternalism and unpredictability created by the current Act’s reliance on court decision-making, with the mana motuhake of owners making their own decisions. That is what is happening in this bill.

For example, take the process of setting up a governance arrangement. Currently if a group of owners wants to set up a trust, they need to organise a meeting of owners themselves. Under this bill they will be able to ask the Māori Land Service to do that for them. Currently they have to give “sufficient notice” and “sufficient opportunity” for owners to consider the proposal, but there is no guidance about what this term “sufficient” actually means, so owners face the uncertainty of not knowing what the court will consider as being sufficient until after they have carried out those steps and proceeded to court hearings. This is the kind of uncertainty that people have been criticising, and it is something that the bill addresses.

Under this legislation, the owners will go into the process knowing exactly where the goalposts are. The participation thresholds are clear, as is the required level of support. If the thresholds are met, then the decision is made—pretty simple. The bill’s participation thresholds have been set after consulting Māori land entities, and the thresholds were fully considered by the independent advisory group, and, indeed, the Māori Affairs Committee as well, as the member will know.

The threshold should be read alongside the procedural safeguards. These include requirements for giving notice, the ability to use proxies and representatives, participation using phone or internet technology, and confirmation of compliance by the Māori Land Court. Currently it is at the discretion of the court as to whether a trust is established, what its terms are, and who the trustees will be. This involves litigation risks. The process can indeed stretch out over months and, sometimes, years, as many people will know.

Under the bill there are no court cases. There is a clear, predictable, and robust decision process by the owners themselves—a decision-making process by the owners themselves. It will be for the owners to have the final say on whom the trustees will be and the terms of the trust. Instead of a court case there will be a straightforward registration process. As the select committee noted, the participating owners model will make decision making easier, while still protecting the interests of absentee owners.

Concerns have been raised about the second-chance decision-making process in clause 51B. Over the years many whānau have become disconnected with their whenua—with their land. It is not their fault; that is just how it is for some, and it is one of the reasons we need this reform. One of the consequences, of course, associated with disconnection to your land is that it is not always easy to get people to participate again. This is why it can sometimes be challenging when it comes to meeting thresholds and quorums. The bill recognises this by including the second decision-making process, so that if participation thresholds cannot be achieved there is still a way forward—a safe way forward—to get decisions made for the benefit of the land and all of the owners. To be clear, though, the second decision-making process cannot be used for decisions that have to be made by a threshold of the total ownership—by all owners. That is, the process cannot be used for major decisions like sale, partition, or long-term lease. When the second-chance decision-making process is used, it is restricted to only those decisions that can be made by the participating owners—decisions about how the land is managed, rather than what happens to the land.

The second decision-making process is optional. It is not mandatory, and owners can choose to disallow it if that is their preference. If the owners have set up a governance agreement, it does not allow a second decision-making process, or if it requires a different process then the second process will not be able to be used. When the second-chance decision-making process is used there is an additional safeguard that was included by the select committee, which I agree with. A decision made using the second-chance decision-making process will only be valid if the Māori Land Court confirms the decision, complies with the requirement of the Act, and the court is satisfied that the decision would help the owners to retain control of or develop their land for the benefit of present and future owners.

The Hon Nanaia Mahuta raised the issue of minors being able to participate in decision making only through what we have called the kaiwhakamarumaru. This is not about restricting minors; it is a mechanism to ensure their voices are actually heard. Without this, the general law about the legal capacity of minors would prevent minors from participating in decisions about their land. The bill enables kaiwhakamarumaru to be appointed to represent and speak for minors or for any other owners who lack the competence to exercise their legal rights themselves. Kaiwhakamarumaru will be appointed by the Māori Land Court.

Clauses 78 to 81 of the bill set out a thorough and robust process for making these appointments. When taken together with the functions of the kaiwhakamarumaru, which are set out in clause 76, these provisions ensure that those who are appointed have the skills and experience needed to carry out this important role. The extent to which this might include knowledge of relevant tikanga is something the court will be able to consider on a case by case basis. The main thing will be to make sure that the interests of the minor are protected and promoted, and this is what this part of the bill achieves.

Part 3 of the bill enables owners to establish and register whānau trusts themselves, without having to go through the court to do that. As the member Peeni Henare acknowledged, whānau trusts have been successful mechanisms under the current Act for whānau to collectively hold and manage their property, so their interests are not diluted through fragmentation over the generations.

The member asked for clarification about the types of properties that could be included in a whānau trust. This was included in clause 59 of the bill and is made clear in my Supplementary Order Paper 279 by moving it into its own separate clause, now called clause 59A. Whānau trusts can be established by the owners of interests in Māori freehold land, so the property of the trust will always include Māori land interests. If the owner also has other property they want included, so that it can be used and managed for the benefit of the whānau, the bill actually provides for that.

If the trustees of the whānau trust think it would be advantageous for the trust to acquire other assets or property, the bill also allows for that in clause 63(2). What this means is that all whānau trusts will hold interests in Māori freehold land, although some of them could also hold interests in other land or property. The key thing, if they do, is that it is consistent with the declaration of trust the original owner put in place, and that all trust property is held and managed for the benefit of the whānau.

The issue that some members raised and talked about was the place of tikanga and who decides how and what it is and how it is going to be applied. This has been well debated, I think, so I am not going to repeat what has been said. But it is an important question, and there will be a couple of points just to clarify.

Tikanga is not Parliament’s law; it is the law of iwi, hapū, and whānau. The bill does not try to make tikanga part of the law enacted by Parliament. This is clearly stated in the bill’s explanatory note. It was explained by the Associate Minister for Māori Development, Minister Finlayson, when he took a call earlier in the debate. What the bill does, and this is important, is it says that where something is best determined by tikanga, then instead of looking to the law for the answer, people should look to tikanga. Examples of this include identifying customary ownership, how disputes are resolved, and ascertaining who is a whāngai and what their succession rights are.

Members have pointed out that tikanga is different and unique from iwi to iwi, hapū to hapū, and whānau to whānau. It is stronger in some and weaker in others. This raises questions about whose tikanga should apply in any situation, and if there is a dispute, how it is resolved. But these are matters that the select committee—[Bell rung] Mr Chair? If I could just indulge you, to finish off. These are matters that the select committee considered. It was its recommendation that in a disagreement about which tikanga should apply, where whāngai is involved, the tikanga of the respective whānau should be considered ahead of the tikanga of the hapū. So the select committee said that. This is now set out in clause 300(3A) of the bill.

If there is disagreement about the applicable tikanga, the parties will be able to go to the new disputes resolution service to help them sort it out amongst themselves. If they are not able to agree, they can then go to the Māori Land Court. They will not have to go to the High Court, as Pita Paraone suggested. The court will be guided by evidence from the parties and kaumātua, not by the legal framework.

I was going to stop there, but I will just touch on Mr Henare’s final points. The member raised the issue about clause 49(3). If the ownership is converted to collective, then no one has individual shares. So if a whānau trust only had interests in that block, the collective ownership is for all owners, not just the whānau. All members of the whānau will remain within the ownership class.

Clarification in respect of clause 48(3)(b)—this allows the collective class to be widened to, for example, members of the hapū associated with the land. Tikanga is determined by the owners themselves, as I mentioned earlier, and conversion to collective ownership is a choice of the owners—that is, they do not have to do it. I hope that that clarifies those two points. I missed the last one, but we will come back and hopefully gather it from the officials once we catch up. Kia ora tātou.

I would like to acknowledge the Minister for Māori Development for his very comprehensive explanation of some of the provisions in Part 3. I want to pick up on the issue of the ability for minors to participate in meetings. I know that the Minister said there is the process for an application to be made for the appointment of a kaiwhaka—

💬 Hon Member: Kaiwhakamarumaru.

—kaiwhakamarumaru. I have never heard that before. It is a new thing to me. But my question is really, if this bill is all about empowering owners and letting them determine their tikanga, why has an arbitrary limit been placed, that you have to be 18 years or older to participate and actually vote for your ownership interests when key decisions are to be made?

My point is, I am really speaking up for our rangatahi out there, who are two-thirds of the Māori population. OK, sure there is an age limit set at 18, but why could it not have been at 16 or, even better, why cannot the whānau or the hapū be left to sort that issue out themselves, in accordance with their own tikanga? If it is good enough for the age of consent to be 16, and this is obviously a separate matter, there are many of our whānau, and my nieces and that, who have many kids, and they are under 18 years of age, and yet they will not be able to vote at a meeting to determine some very key aspects of their rights to their whenua?

It just seems a bit out of alignment, because on the one hand the intent of the legislation is, yes, we want to empower the owners, and yet on the other hand, we are saying “Oh no, no. Rangatahi, if you’re under 18 you have to go and make an application to the court to appoint a kaiwhakamarumaru to be able to vote on your behalf at your meeting. We don’t think that you are of sufficient maturity to be able to make that decision.”, even though there are lots of kids running around. They still will not be able to make that decision.

So I just think, again, it seems out of alignment. It is one thing to say, yes, tikanga, yes we believe in determining tikanga. And yet there is such a highly prescriptive regime and it still involves going to the court. I mean, I just think, what 16-year-old will know: “Oh, there’s a meeting on with my uncles and aunties this weekend. I’d better make an application to the court to get my kaiwhakamarumaru, so I can go and have my voting interests recognised at this meeting.”? It is ludicrous—ludicrous. What 16-year-old would be able to do that? And then they are talking about this Māori Land Service—well, that is probably just an extended arm of the Māori Trustee, trying to create some more putea and mahi for his poorly performing organisation. But that is another matter.

Getting back to this point—I do want to speak up for the rangatahi, because this is very important. Eighteen is quite a high threshold, and having to go through the rigmarole of the kaiwhakamarumaru—it just seems so unnecessary and so contrary to the intent, that you still have to go to court, as a 16-year-old or 17-year-old or whatever age, to get that appointment made. I question the workability of this clause, and I think that has been pointed out by many submitters as well. If they are old enough to have kids, they should be old enough to vote at these meetings. We are not talking about just everyday meetings. There are some significant decisions that will be made, as the Minister has pointed out, with the different processes.

The other point I want to make is around those second-chance meetings and the thresholds. I think the Minister has addressed them, but there is a serious concern out there among Māori right up and down the motu that even with the very clear thresholds set, you can make some very key decisions with a very small number of engaged owners. I guess that is a fundamental concern that iwi Māori have around the rushing of these provisions and ramming them through the House in this attempt. [Bell rung] Mr Chair?

The CHAIRPERSON (Hon Trevor Mallard): Rino Tirikatene.

Thank you, Mr Chair. I will just wrap up this point, and I am sure my colleagues will have many more points to add on this Part 3 as well. The concern is that, I guess, the Minister in the chair, Te Ururoa Flavell, has not alleviated the concerns of the whānau at large that this is a means for a very—you know, those smart cousins or whoever who have been through law school or whatever and who like to hijack the processes, who can scheme up a way whereby they can make those key decisions to the exclusion of all the whānau.

I guess my concerns are compounded by my concerns that the rangatahi are excluded—under-18-year-olds are excluded—from voting themselves in respect of their own interests in their whenua. I believe that that arbitrary limit of 18 years is wrong, and, ideally, I would like that to be addressed, because that certainly does not seem to be tikanga to have such a prescriptive process that excludes two-thirds of the Māori population. Can you imagine how many applications would have been made to the Māori Land Court for kaiwhakamarumaru, with two-thirds of our population under 18 years of age, all rangatahi? Is that what we want?

💬 Meka Whaitiri: Clogging up the court.

Clogging up the courts with applications—who are these kaiwhakamarumaru going to be? Where are they going to come from? I mean, it just seems ludicrous, if the whānau and the hapū say: “Yep, they can vote. They should be able to vote.” So I would just like to make those points, and then, hopefully, the Minister might be able to address them. Kia ora.

Tēnā koe e Te Heamana o Te Komiti. I want to address both the establishment of w’ānau trusts and the operations of w’ānau trusts. I just want to take up something that the Minister in the chair, Te Ururoa Flavell, said and it relates to clause 61(3), which seems to me to be saying that if a w’ānau trust, in its declaration, does not want land or interests to be sold, then it has to declare it as part of the declaration. Given what the Minister has said—

💬 Hon Te Ururoa Flavell: Reference?

Oh, sorry—clause 61(3). I understand that the clauses around the disposal of land are coming up in a later part—in Part 4, I think it is. It seems to me that if it is in fact that shareholders, beneficiaries, must be consulted and must vote on whether or not land is to be sold, then what is the purpose of having this line within this clause? It would seem to me that that is redundant, that the w’ānau trust, based on what the Minister’s answer to a previous question was, does not apply to this clause, and that this clause is basically saying that if a trust, or if the shareholders, want to they can, in the declaration, allow or enable the trust to sell that land or sell their interest, And yet there are situations or clauses that are coming up in later parts that the Minister has said the beneficiaries and the shareholders must vote on. So what is the purpose of having this as part of the declaration? It would appear to me to be inconsistent with what the Minister has said and totally redundant.

I also want to pick up on and refer to clause 59(1) and the two ways in which w’ānau trusts can be established and a declaration made—it also seems to me that it is not as straightforward as we are led to believe. I think, as the Māori Land Court judges said in their submission, it would require a relatively sophisticated document.

💬 Hon Te Ururoa Flavell: Reference again, please?

That is clause 59(1). I just think that, in that sort of situation, then, it may be more cumbersome for a w’ānau to go through, to make that declaration.

Further on, still with w’ānau trusts, and I know this is coming up also in Part 7, but the alienation or the selling of the trust, under clause—oh, it actually comes up later on, but it is relevant to these clauses in establishing a w’ānau trust. That is relating to what I said before on clause 61, that it does impact on the ability to use those clauses later on in this bill.

Clause 66(1), which entitles the beneficiary of a w’ānau trust to—

Thank you for the opportunity to be able to participate in this part of the Committee stage. I want to just talk specifically to clause 51C, where reference is made to the words “participating owners”. We have often heard in leading up to this stage—from the time the bill was introduced right up to this evening, may I say—that this bill is all about the retention of Māori land. Can I say that when we talk about participating—

The CHAIRPERSON (Hon Trevor Mallard): Sorry, could the member give me the reference again?

Clause 51C—participating owners. That is fine for those owners who participate, but they may be in the minority in terms of the overall ownership. So what this suggests to me is that we have a minority group that makes up the participating owners making a decision on behalf of the rest of the owners. Most of them—well, they are not participating because they are not there, people do not know where they are, or, in fact, some of them may have even passed away. So, for me, that is a concern.

It has been a long-lasting concern, even under the present administration, if the whereabouts of many owners are not known. Where they are not known, it seems to me to be very unfair for a small group of owners whom the system or the process knows who they are—or it knows their whereabouts, more importantly—to be making a decision for those who may not be aware, for a reason not of their own making, of what is happening to their land. So they could end up having their land alienated by a small group with possibly only a small shareholding, and that, I think, is an even greater crime than having the authority to make that decision by virtue of this particular clause in the bill. I think that is an issue that has to be addressed, and it can be addressed only if people know where the owners are.

If their whereabouts are not known, then it seems to me the be very unfair for them to have the future of their land determined by that group of owners who happen to be known to the authorities as to where they stay. So to have this process managed by the proposed Māori Land Service is, I think, an even greater insult to those shareholders.

As we have often heard, our people are a mobile people. So people who are living offshore, for instance, or away from home can have the future of their legacy—can I say—which they would hope to leave to their children, being lost by virtue of the fact that they are not regarded as participating owners. So I hope that Minister Flavell might be able to explain how this will, in fact, prevent the sale of Māori land.

As I go on to the rest of that clause, I do not have too much difficulty with that, other than to support the comments made about those shares that owners have decided to retain within whānau trusts. I think the notion of whānau trusts does have its merits, because it prevents the downsizing of the families’ shares.

💬 Hon Members: Mr Chair.

Oh, what a dilemma. I call the Hon Nanaia Mahuta. I would have given the call to Meka Whaitiri because she is the spokesperson, but anyway.

Thank you, Mr Chair, for letting me make a small contribution. Look, Part 3 was probably one of the areas of the bill that exercised much of our conversation, because it goes something like this: when is a decision a decision? A decision is a decision if you have a specified majority, but if you do not have a governance agreement it is not a decision. So when might a decision not be a decision? Well, it might not be a decision if you do not meet the participating thresholds that are set out in the bill—very complex. So could a decision really be a decision if you do not meet the decision-making thresholds, do not have a governance agreement? No, it is not a decision.

So, you know, you can see where the Māori Affairs Committee got to when we were looking at the complexity of this bill, Minister, and trying to think that, actually, if we were just a humble Māori land owner wanting to do something on our whānau land, we would blimmin need a lawyer to navigate our way through just this one clause, clause 51. It is very difficult to try to get a feel for just how easily it was intended to ensure that decisions could be made, might be made, should be made—however, you need to understand the complexity around the participating thresholds.

The other issue is that it is not a decision if you do not meet certain provisions, so you get a second chance at a decision. These are the things that we debated at length, and we thought to ourselves: “It’s not that easy.” It is not that easy for people to understand the way in which the law is intended to ensure that decisions for decision’s sake can be made with a level of clarity that landowners know what threshold they need to meet to get an outcome. If you need a lawyer to navigate your way through a simple thing like making a decision, this is not the clause to be looking at—in fact, far from it.

However, Minister, if you would take a call, there were some aspects of the second-chance provision that I think were a matter that you reflected on around improving the way in which it operated for decision makers, landowners. It would be quite useful to see whether or not, in light of the complexities of this clause, you believe, Minister, that the second-chance decision-making process will actually be some gain for landowners or actually much more difficult to prove that a decision has been made.

The other aspect was the inclusion of the participating thresholds in the bill. That was something that clearly needed to be done, because it was really difficult to understand at what point certain thresholds need to apply. If you take, for example, the issues around disposition—sale and exchange or gifting of land, boundary adjustments, partitions and amalgamations—if all those things become quite contentious, then it would be absolutely necessary to have the participating thresholds outlined in the bill, in the way that it has been.

But can I just come back to clause 51(2)—actually, all the way through—and just highlight the difficulty, if you were navigating your way around the decision-making process. Clause 51(2) says: “If the parcel is managed under a governance agreement, the decision must be made using the decision-making process required by the agreement.” OK, then it sets out what that looks like. A participation threshold—going on to clause 51A, it states that for a decision by participating owners the requirements of clause 51A or 51B, which relate to a participation threshold, must be satisfied in addition to the specified majority requirement prescribed by subclause (9)—more difficult. Go on to subclause (10): “See the following provisions for the specified majorities of owners who must agree to certain decisions about Māori freehold land:”.

You can see the dilemma a Māori land owner would be in if they just navigated their way through this Act by themselves and thought: “Oh my gosh, how is this going to work?”. They will have to get a lawyer with money they do not have to be able to understand what to do. I really think that of all the complexities in the bill it is the way in which such a simple thing—making a decision—can or cannot be achieved under the portents of this particular bill. So, Minister, it would be good to get your view on the second-chance provision. Will it be a total-sum gain to the landowner or not?

I will try to cover off some of the issues that have been raised. Just unfortunately for the Hon Nanaia Mahuta, pretty much in my first call this evening I covered most of those issues, but, unfortunately, she was not here to hear it—

The CHAIRPERSON (Hon Trevor Mallard): Order!

Oh, sorry. I did not realise. I am sorry about that, but I have made those references already so I will not go back over them, but I did want to return to some of the issues that have been raised already.

One issue raised by Rino Tirikatene talked about minors’ participation in meetings. I am advised that 18 is the recognised age of what they call the age of majority. They have legal capacity to make decisions that bind the land, and that is under general law. Under the bill there is a mechanism to allow them to actually participate, through a kaiwhakamarumaru, so—there you go—there is an opportunity to be able to participate there, unlike the current situation. It is the same under the current Act, where minors need to go to court to get a trustee appointed under a kaitiaki trust. So, hopefully, that addresses the issue that Mr Tirikatene raised.

Adrian Rurawhe pointed out clause 61(3) and noted that the clause states: “The trustees must deal with trust property in accordance with any conditions or restrictions set out in the declaration of trust (for example, if a declaration of trust prohibits the sale of an interest, the trustees must vote, in any decision-making process of the owners of the land, against a resolution to sell the land).” Just to inform the Committee, actually in that clause all this is talking about and all it is saying is that if the trustees have no power to sell shares, then if the wider ownership of the block is voting on a proposal to actually sell the block, the clause requires the trustees to vote against the sale. This is going to be covered further in Part 4 as we move towards that.

So it is important just to clarify those other issues and, indeed, the Hon Nanaia Mahuta and other members, Pita Paraone and Adrian Rurawhe, have raised issues that I covered off sufficiently enough earlier, to give the Committee some degree of understanding about where this has been sitting. But I thought it was important just to cover off those points so that we do not get too far ahead of coming back to address to them. Ka nui te mihi.

I hear that the Minister is saying that he covered off, I think, the specific points that the Hon Nanaia Mahuta was raising, in terms of the clarity of the participating and decision-making thresholds, but I did just want to add, for the Green Party records and for the Committee, that the complexity of those—because I have it noted here, and I could be wrong, that this is a new provision. I hear that the Minister is saying he addressed the House earlier on the specific point of clarity of decision-making thresholds and when a decision is not a decision, but I am wondering, though, whether—so that is the bill, and then we have got the Supplementary Order Paper to the bill. It seems that, in my research that I have noted, it is a new provision, and therefore, I think I am just asking how, with regard to the particular table that is in the bill, we are also going to get that clear information to the very people who need to try to understand the road map of how these decisions are going to be made.

Whether it has been clarified here in the Committee is one thing, but I am particularly concerned, then, if this is a new provision, about how we are then going to ensure that there is reasonable and equitable access for whānau land owners regardless of whether they are part of a large block and shareholding collective or smaller blocks, or any whānau land owners who may have less ability to access the specialist knowledge that it is going to take to get through these.

And then, picking up on Part 3, clause 52 and what other colleagues in the House have said about, I think, clause 52—“Minor cannot vote on decisions and is not counted as participating owner”—and, yes, it goes down to say that those under 18 years of age “may participate in a meeting of owners about any decision relating to the land; but (b) cannot vote on the decision.” I think the Minister was clarifying that, in those cases, a kaiwhakamarumaru then acts as your vote. I think that is my understanding, but what I also wondered about, and it may be very unlikely to happen but it got me thinking, was whether there would ever be a situation when there is a collective group of under-18-year-old landowners where you may end up with only kaiwhakamarumaru participating in those decisions for them? And I understand that it is unlikely, but I was more interested in a legal back-stop about that particular situation or any other situation where we end up with kaiwhakamarumaru being the principal decision makers and vote makers. So those were just two of the main questions that I had in this particular part of Part 3, actually, because Part 3 is quite a lengthy part as well. Thank you.

Tēnā koe, Mr Chair. Thank you very much for this chance to have a call on Part 3. Can I please first just extend my condolences to a former Minister of Parliament who buried her husband today, Steve Chadwick, and to the rangatira, John: haere atu rā, moe mai rā!

[Farewell and rest there!]

Can I, just by way of reminding this Committee—this is a very complex bill. It is over 400 pages long. It is the first piece of legislation that we have seen in this House for 24 years, and I want to thank the Minister for responding to questions that we have put up previously when we debated Part 3. But I just want to go on record that the motion to reopen Part 2 was because we had a new concept in that part that we did not get to debate, and that was the whenua tāpui. I will just leave that there because it is important that we give this bill due scrutiny because of the comprehensiveness and simply because the Minister has made some changes since it left the select committee. And this is the only place we get to properly scrutinise those changes.

Part 3 is made up of three subparts. The first subpart is about ownership and decision making, the second part is around whānau trusts, and the third subpart is about the kaiwhakamarumaru. I am not going to repeat what other people have said because I think they have clearly touched on the threshold decision-making framework and I want to acknowledge the Minister in terms of the second-chance provision, which is clause 51B. He made it really clear what it does not cover. I read it differently in the bill, particularly if I draw the Minister’s attention to clause 51B(5), where it says: “The decision is valid only if the court, on application, makes an order of confirmation that—(b) the court is satisfied that the decision will assist the owners to retain, control, occupy, or develop their land for the benefit of present and future owners.” And I do want to acknowledge what the Minister said the legislation did not cover, but I read that and it tells me that it actually covers a lot of those things, particularly long-term leases that he said it did not cover. So it would be good to really clarify what second-chance decision-making does and does not cover, because that is not how the bill is laid out.

If I turn to subpart 2, under whānau trusts, I guess the biggest issue in considering this particular part is the absence of any detail around the Māori Land Service, and the reason why I say that is because in this particular subpart of Part 3 it makes references under whānau trust. For example, it says in clause 63 that whānau trusts must apply to the chief executive (CE), which is the CE of the Māori Land Service, to have their trust entered on the Māori land register as soon as possible. That is clause 63. So we are getting introduced to a person in charge of a service that we have no detail on—all landowners have no detail on. The question I have for the Minister around this particular provision in clause 63 is: who pays for the registration? And that is a question that many whānau trusts who have to re-register—because that is how I read it; if you have already got a whānau trust, you have to go and apply to the CE of the Māori Land Service to make sure that the details of your whānau trust are registered in the Māori land register as soon as possible, as it is spelt out in clause 64. So then the question, obviously, is: is this a free service or is it a paid service? Some detail on that would be helpful.

Again, in subpart 2, whānau trusts—if I draw the Minister’s attention down to clause 71(3) where we talk about who gets what after termination. So in this particular provision, Minister, it talks about the terminating of a whānau trust, where it says that once a whānau trust is terminated, it goes back to the original owner—well, that makes sense—if they are dead, according to their will; if dead and there is no will then equal shares go to all living beneficiaries. But in subclause (b), it says if there are no living beneficiaries, if an original owner has died and they have not left a will, then the land—

I move, That the question be now put.

💬 Hon Members: Mr Chair.

No, We have been considering this part for about 2 hours now. We have had well over 20 calls. I think we are able to make a decision.