Te Ture Whenua Māori Bill

The question now is that Part 4 be agreed to. It is debate on clauses 96 to 153 and schedules 2 and 4.

Kia ora anō tātou katoa. Part 4 of the bill, as I have been explaining in previous speeches—I will try to lay that out first so as to give members a good kick-start into it and the key parts, from my perspective, about the bill. This one here sets out the proposed regime for dispositions in dealing with Māori land. This part ensures that retention and protection are the core features of the Māori land regime and it continues to regulate transactions where retention may be placed at risk.

An important part of this bill is that there is a robust framework and a stricter set of requirements before owners can offer Māori freehold land for sale. At present, Māori freehold land can be sold with 75 percent support from shareholders. Not only do we have the current regime being retained, but, in fact, the bill makes it harder, if not close to impossible, to sell some land, depending on the outcome of the discussions of those owners. The threshold can be lifted up to 100 percent from 75 percent, and, therefore, basically, as I say, alienation of Māori land would pretty much not be able to be achieved.

The bill continues to protect the right of those with a tikanga-based association, and, of course, tikanga has been given a fair thrashing in terms of interpretation throughout this debate. Those who do have a tikanga-based association with the land will have the first right to acquire it in any sale, and that strengthens, again, the process for the retention of land. Unlike 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 and its place has been given some consideration in this legislation, while the Māori Land Court will continue to have a role to ensure these protection mechanisms are complied with. I have talked about that in Part 3 of the bill. The court will also be able to prevent people from partitioning or changing the status of their land to get around and circumvent some of these protections. In response to the submissions, the bill now provides the straight oversight role for the court over whether Māori freehold land status can be removed and whether partitions will assist owners of Māori freehold land to retain, occupy, or develop their land.

The Māori Land Court does indeed have a significant role, in particular, in improving applications to amalgamate land, such as ensuring that the allocation of the beneficial interest is fair and equitable to all owners. The court will also be required to confirm applications to exchange a parcel of Māori freehold land for another piece of land, if that is the wish. In such cases, if the other piece of land is not already Māori freehold land, it will automatically acquire that status following the exchange.

Part 4 of the bill ensures that governance bodies will not be able to permanently alienate freehold land without either an agreement or, in the case of a land rationalisation, an order from the Māori Land Court allowing the change of status. The bill enables owners to determine which other transactions require governance bodies to obtain their specific agreement.

There has been a lot said in respect of any possibility of alienating Māori land. I have said it, and I will say it again: the thresholds have not been changed, but they can be strengthened by the decision-making process made by those people who own the land. They can shift the thresholds up to 100 percent, absolutely guaranteeing no more alienation of Māori land. So to those who say that this is another land grab, I am sorry but it is not. These protective mechanisms reinforce the principle of taonga tuku iho and will ensure that Māori land will be retained for the benefit of future generations.

Thank you for the introductory comments made by Minister Flavell in relation to Part 4, “Dispositions of Māori freehold land and other land”. I thought I might just make some reference to the submitters who made some submissions on this particular clause, clause 96, in terms of the definition of “preferred entity”. The Minister has alluded to Marise Lant and, of course, Professor Richard Boast from Kensington Swan, again, where he talks about the use of tikanga in determining association with land. He makes a really good point around whether this view could arguably alienate urban Māori who may not have a strong tikanga relationship with their whenua but, no less, have a whakapapa relationship to the land. I am sure my colleague Peeni Henare will have something to say to expand on that.

There are some questions in this part, particularly around clause 96(2), where there is this introduction of a “representative entity”, and I would be really keen to hear from the Minister on clause 96(2)(b) where it talks about disposal of land to “a representative entity for the land for disposition”. I ask whether he could give some examples of what he means by a representative entity. Clearly, this bill was talking about defining preferred recipients, and I want to acknowledge the work of the Māori Affairs Committee on extending that definition to include “children, grandchildren, and other descendants” of Māori owners. There has been some work at the select committee, and I want to acknowledge the Minister for signing and extending the definition of “preferred recipients”. Of course, we also talk about the preferred entities, so there is a question around explaining what a representative entity is, because it is not clear.

In Part 9, where we talk about the dispute over preferred recipient entities, Part 9 does not actually cover this. It makes reference in this Part 4 that if there is a dispute or whether it goes to a preferred recipient or a preferred entity, in the bill it says it is covered under Part 9, but when I read Part 9, I actually could not see how that is going to be sorted out in terms of who gets the say when it comes down to whether it goes to a recipient or whether it goes to the entity. Perhaps the Minister could clarify that.

Also, in clause 97, there is the provision there that the kaiwhakahaere can dispose of land if permitted. If we remember, the kaiwhakahaere is appointed by the chief executive of the Māori Land Service, obviously supported by the Māori Land Court. But, Minister, I just wanted to make sure what protection mechanisms there were around the kaiwhakahaere in clause 97 in terms of disposing of land, if permitted.

Then we go on to the court appointing the kaiwhakahaere and who can be eligible, in clause 189, and that is just ensuring that there is some consistency around who can be a kaiwhakahaere. Who is eligible? That is the question, and it does not clearly state that in this particular clause.

The other concerns I have with this—obviously, it is going to be, when it comes to disposal, a big issue for landowners around the process. Again, I will draw that comment I made around how, without having the Māori Land Service, we do not know the actual process that it will follow. Perhaps the Minister could give some clarity around that. I am sure other members on this side will have some contribution around Part 4 and disposal. It is a very important part of this bill. We need clarity to safeguard all Māori land interests, wherever it comes and however it comes, to ensure that the land is not lost, that they are clearly on the preferred list—and how they get on the preferred list if they are not on it—and whether the recipients trump the entities or the entities trump the recipients. It is not clear under this particular part. Thank you.

I just have a very specific question. I was very encouraged by the Minister’s introduction to Part 4, where he wanted to give assurances that it is going to be harder to sell now; that the threshold, currently at 75 percent for those decisions—our disposition of land—can actually be taken to 100 percent. I am just trying to find out the process for how that is done. For me, it begs the question—sure, that can be done, but will there be any specific whānau land owners who, even though it can be done, are at a disadvantage, and that leaves the onus far too much on whānau land owners having to be more proactive about that than when it should actually be the case. It is just a question about how that is done.

I was encouraged to hear that freehold land cannot be gifted to anyone who does not have a tikanga Māori connection. I hear that, but then we go to—I am happy to be corrected—clause 100, which is the “Sale of parcel in ordinary cases”. Clause 100(1) says: “This section specifies the only way in which a parcel of Māori freehold land may ordinarily be sold”—and then it refers to another section. It goes down to clause 100(2), which says: “The sale must be (a) to a preferred recipient”—fine. I am following that that goes back to that list, which I think included ascendants, children, grandchildren, and then grandparents, parents, and also whānau—yes, sure. But then I am a little confused about clause 100(2)(c), which says the sale must be “to any other person, under an agreement (i) that is made by tender or auction after a preferential tender process for the land ends without a qualifying tender; and (ii) that is on terms at least as favourable to the seller …”.

I want to make sure that, sure, there are preferred recipients, but this is not a complete stop and restriction, and is not saying that it cannot be sold to anyone else. What I am reading in clause 100 is that, yes, first up are preferred recipients, but if that does not happen for whatever reason it can then be sold on. I would just like some clarity, because the Minister wants to assure everybody that Part 4 does actually protect against land status change and partitioning and disposition sale, particularly for Māori freehold land. I am seeing that it can still be put over to any other person. So I would just like some clarity on that. Thank you.

Mr Chair, thank you very much for this opportunity. In the vein of my two colleagues who have just spoken, Meka Whaitiri and Marama Davidson, I do want to speak about the disposition of land made by owners or a governance body. Clause 97(3) is the one I want to refer to, and it says: “However, this section does not prevent—(a) a kaiwhakahaere from disposing of land on behalf of the owners if permitted under [the appointment of the kaiwhakahaere]”.

In another contribution on this bill, I raised the process of appointment of a kaiwhakahaere and some of the obligations of a kaiwhakahaere. That kaiwhakahaere is not obliged to engage with the owners; also, that kaiwhakahaere is court-appointed—court-appointed. In this particular part of the bill, clause 97(3)(a)—“However, this section does not prevent—(a) a kaiwhakahaere from disposing of land on behalf of the owners if permitted under [the appointment of the kaiwhakahaere]”—I understand that it says there “on behalf of the owners”, but in the role of the kaiwhakahaere, as I read it in the definition, they are not required to act, as it says here, on behalf of the owners if permitted under the appointment. Call it technical, call it what you like, but I would like to hear some definition around that, because we are actually talking about the importance of holding on to that particular land.

The next clause I want to talk to in Part 4 is clause 100, “Sale of parcel in ordinary cases”—namely, new subclause (3A). It says there “For a governance body’s decision to offer land for sale,” then it goes down and says: “see clause 13 of Schedule 4,”. I flick over to clause 13 of schedule 4, and this once again brings me, in part, to my contribution on Part 3 of this particular bill, where it talks about waiting. It says here in schedule 4, clause 13(3): “The decisions for which a minimum level of owner agreement is required are—”, and it has two columns there. The right-hand column says “Minimum level of owner agreement”, and “The agreement of owners who together hold a 75% or more share in the land”, and the one under that says: “The agreement of owners who together hold more than a 50% share in the land”.

I have not been an administrator for Māori land trusts across the country, but I have been an administrator for a fair amount of land trusts and rōpū whakahaere, if you like, and I have witnessed exactly how the weighting of shares per contribution into the particular trust can be problematic here. Let us take, for example—once again, my tuakana Pita Paraone knows this very well—the share allocation across the Ngati Hine Forestry Trust. Of the 10 owners of the largest share amongst 4,000 beneficiaries—is this rule suggesting that those 10 owners can actually make the decision for disposition of this land? Because that is my understanding of that.

The disproportionate weighting—I am not too sure exactly what the formula is, but when our whānau gave their land, the formula was given so that X number of shares went to those people who committed their lands to that trust. We have seen it happen in the past. Whether it is by good planning or just by coincidence that those whānau happened to collate all of their shares in one trust, or whether or not that particular individual landowner is still alive to this day—are we suggesting then that that small number can make the decision on behalf of so many?

The CHAIRPERSON (Hon Trevor Mallard): Which clause?

I was referring to clause—I had it here—100. Sorry, it was clause 100. Sorry, I was having a moan about something else here.

The CHAIRPERSON (Hon Trevor Mallard): It was sounding like a really good speech on Part 3.

No, it was a direct reference to clause 100, “Sale of parcel in ordinary cases”. In clause 100(3A), it says there: “For a governance body’s decision to offer land for sale, see clause 13 of schedule 4,”. So I turned over to clause 13 of schedule 4, and in the right-hand column it reads: “The agreement of owners who together hold a 75% or more share in the land”, and “The agreement of owners who together hold more than a 50% share in the land”.

I have experienced this first-hand as an administrator of Māori land, whereby if five out of the 10 largest shareholders come together for a cup of tea at the junction cafe in Kawakawa before heading to the AGM or to a particular special general meeting for the Ngati Hine Forestry Trust—if five of those 10 major shareholders come together, then, according to the formula “The agreement of owners who together hold more than a 50% share in the land”, they can actually decide the fate of the 4,000 beneficiaries. That is grossly unfair to me. It does not make any sense. I am, sadly, not one of the 10 large shareholders in this particular block, but I am a shareholder none the less. Other whānau will find themselves in this situation.

I repeat the point: I am not too sure what the formula was to give the weighting to that particular shareholding. Was it on amount of acreage or hectares given into administration by the trust? Or was it because that land was particularly better at growing the particular forest or pine or whatever it might be that the administration decided to work the land for? Or was it whether or not their particular parcel of land was better than somebody else’s, who perhaps had a bit of swamp on their land? Those are all questions that I have, because the Minister for Māori Development mentioned how this particular bill will strengthen the mechanisms to protect Māori land. It does not seem to do that, to me, just simply looking at schedule 4, clause 13. That is a serious question that I have, and I hope the Minister can give some clarification on that one.

Just in closing my contribution on this particular part, I would want to go back to the role of kaiwhakahaere as described under clause 97, “Disposition of land made by owner or governance body”. Clause 97(3)(a) reads: “a kaiwhakahaere from disposing of land on behalf of the owners if permitted under [the appointment of the kaiwhakahaere]”. I want to get back to this point: the kaiwhakahaere is court-appointed; the kaihwhakahaere is not obliged to engage with whānau in the decision making over that particular land. That does not sound like tikanga to me. That does not sound like a process that will allow whānau to be fully informed and engaged in a very important decision—the disposition of land made by owner or governance body—given that the kaiwhakahaere is appointed by the court. They are appointed by the court.

In conclusion, I just wanted to add one of the other parts on kaitiaki eligibility. The bill does say that a kaitiaki can only be eligible if they have not been convicted of a particular offence in the past 5 years. That is a huge concern to me because, I can tell you, a lot of the poor land administration that took place with particular land administration organisations actually happened over the past 30 years. To think that we are going to hahu, or exhume, some of these particular leaders of administration blocks from 20 or 30 years ago to all of a sudden become eligible for kaitiaki purposes or kaitiaki status on current land blocks, is of concern to me. Thank you very much.

Kia ora, Mr Chair. I just want to respond to the previous speaker, Peeni Henare, particularly around clause 100, which is the “Sale of parcel in ordinary cases”. This particular clause actually specifies that “the only way in which a parcel of Māori freehold land may ordinarily be sold …”—and I think this is one of the main issues—“(2) The sale must be—(b) to a preferred recipient or preferred entity …” or if a preferential tender process ends without a qualifying tender, to any other person on terms determined by the process.

In this one here, the decision to offer the land for sale must be agreed by the governance body. If there is not a governance body, well, then, the owners who together hold a 75 percent or more share in the land—75 percent or more share in the land—the sale requires an order confirmation from the Māori Land Court.

I think this is the essence, actually, of this particular clause. I think the other part of it is that there is an amendment to this clause via Supplementary Order Paper 279. It covers the area of the terminology used in this clause, which has been changed. So I think the retention of the freehold for the sale of Māori land is considered a proper safeguard. That is what this was about. It was about the safeguard, especially as it has been strengthened by enabling owners to raise but not lower the threshold. I think, listening to Mr Henare, that it was actually about those thresholds. So this one here is actually about enabling owners to raise but not lower the threshold when they have a governance body—to 100 percent, actually, if they wish. So I think that that is an important part of that one.

If the owners of a whole parcel of Māori freehold land decide to offer the land for sale, they will be required to give a right of first refusal—so an RFR—to preferred recipients, and a right of second refusal to a preferred entity. Just to explain, that clause 100, I think, actually covers—

💬 Peeni Henare: But, still, 50 percent share can decide.

Yeah, but when you look at the threshold, particularly around the 75 percent—I just really wanted to stand to clarify that particular clause, that clause 100. It was discussed in, actually, quite a lot of detail when looking at this particular part of the bill. Kia ora.

I want to address new clause 140(4) in this Part 4, inserted by Supplementary Order Paper 279. I agree with the overall intent of this part around limiting as much as possible the disposition of Māori freehold land or Māori land interests, but I am concerned about an individual’s freehold interest in any Māori freehold land under new subclause (4)(b): “To avoid any doubt, the sales or gifts to which this section applies include … a sale under a power expressed or implied in a mortgage:”. Given the special importance of Māori land, and the fact that we want to encourage as much of the retention and also utilisation of that land as possible, I am concerned that those interests can be sold by way of mortgage or implied in a mortgage. I can just picture some unscrupulous lender accepting a mortgage over numerous freehold Māori interests of an individual, and then unbeknownst to that individual they have the right implied in that mortgage to be able to sell that interest. Sure, they can sell it to the actual classes of preferred folks they are obliged to sell to, but I would like to ask Minister Flavell why there is an implied right for a mortgagor to be able to sell the land. Surely it should be only if it is expressed in the mortgage—that should be the law; that should be the requirement. It should not be just an implied right for a mortgagee to be able to sell that particular interest of a certain individual.

I guess this gets back to the point whereby there is talk about renewing and revamping these laws and we are talking about tikanga, talking about those big lofty provisions in clauses 3 and 4, and yet so much of what the Minister has talked about tonight has been: “Oh, the general law says ‘Te mea, te mea (so on and so on, etc., etc.) this is how it is done’, and so we are following the general law.” Well, I thought this was about Māori land law. Regardless of what might be the general law in relation to mortgages given over Māori freehold interests, I believe, given the special importance of Māori freehold land interests, that there should not be an implied right in a mortgage.

If there is that right to sale, it should be expressed. So I just want to ask the Minister—and I do not think it is good enough to say: “Oh, but the general law provides that there is a right.” We are actually passing a law for Māori land. We should not worry about what the general law provides. This is why we are putting a Māori land law in place. Otherwise, what is the point of those big provisions in clauses 3 and 4 about the mana and the tino rangatiratanga—you know? It is meaningless. I would like the Minister to address that point, because I do not want to see any Māori land owner have to forgo their interests through some unscrupulous loan shark who has given them a loan, and then all of a sudden they find that all of their interests are gone.

The second point I would like to raise is in relation to the general provisions about dispositions. There is a lot of talk in these provisions about registrations on the title—what is in the Māori land register and what is to go into the land transfer register. All I would like to inquire about is how robust those systems are going to be, because I am only familiar with cases whereby the wishes of owners have been made in the court, and the Māori Land Court has made a decision in regard to those lands, but because those orders were not transmitted and noted or registered on the land transfer titles, they were of no—[Bell rung] Mr Chair?

The CHAIRPERSON (Hon Trevor Mallard): Rino Tirakatene.

Those decisions made by the Māori Land Court were never, ever noted or registered on the land transfer title, so were of no effect. In many instances, Māori land has been lost through the fact that there was no information sharing or record of those decisions having been made in the Māori Land Court and never reflected on the title. So a purchaser of a title, without notice, is entitled to clear title. I know that that has happened on numerous occasions.

I would like to have some reassurance, and some comfort, that the records or the decisions that are being made, that are put into this Māori land register will indeed have close alignment with the land transfer system, because that has not been the case in the past. Those are the main points I would like to raise, and I hope the Minister might be able to address them. Thank you.

I just want to carry on from what my colleague Mr Tirikatene was talking about, but I am not going to focus on clause 100, but rather on clause 97(3)(c). My concern is around that whole area of a mortgage. While I have not been able to sight it in the bill itself, is the Minister suggesting or implying that any mortgagee is required to follow the terms of the disposition of land interests as articulated in the bill? In other words, the owners, or the kaiwhakahaere on behalf of the owners, owes me money—they have not been able to meet the obligations of their mortgage—and so I have that right to dispose of that particular interest. Is the bill implying, in terms of the rules of disposition, that I, as the mortgagee, can only dispose of that interest in terms of the bill?

I think that is the whole issue we are talking about. I am quite surprised that shareholders—owners of Māori land—are able to mortgage their interest in such a way. If they can, and if they do not meet those obligations, then Māori land is up for sale. Fa’afetai.

The time has come for me to report progress, I suppose—to report something, anyway.

House resumed.

Progress reported.

Report adopted.

The House adjourned at 9.56 p.m.