Te Ture Whenua Māori Bill

When we were last considering the bill we were debating Part 5. Meka Whaitiri had the call, and while she had 4 minutes and 27 seconds remaining, we are going to be really generous and give her 5 minutes.

Tēnā koe, Mr Chair, and thank you very much for giving me a full 5 minutes for this contribution, and for reminding the Committee that we are debating Part 5. Part 5 is “Authority to act in relation to Māori freehold land”. This is where the rubber hits the road, because in this part we are talking about the role of governing bodies. This part talks about the establishment of governance bodies, who appoints them, what their role is going to be, and how they are going to be managed, so this particular part, like I said, is where the rubber hits the road.

I want to say to the Minister in the chair, Te Ururoa Flavell, that I have put a few tabled amendments on the Table there. I apologise if I have repeated myself from the last speech, but I think it is important in my 5 minutes that I do go through my tabled amendments that relate to Part 5. Let us start with clause 132. No, clause 132 has been debated; my apologies. Let us start with clause 154(1)(b), which is in Part 5. After “how governance agreements are”, my amendment is suggesting that we insert “reviewed and”. If we go to clause 154(1)(b), where it talks about the “Overview of provisions relating to governance bodies”, we have got “includes provisions relating to the registration of governance agreements, the transfer of assets and liabilities to governance bodies when they are appointed, quorum and eligibility requirements for kaitiaki of certain governmental bodies, and how governance arrangements are cancelled.” I am suggesting in my amendment to clause 154(1)(b) that after “how governance agreements” we add “reviewed and”. That is to ensure that we have the ability not only to cancel but also to review governance arrangements.

My second amendment in Part 5 is to clause 184. I will give the Minister and myself a chance to turn to that particular clause; we are talking about subclause (4)(a) of clause 184. In this particular part we are talking about the kaitiaki, their numbers and their eligibility, and we are talking about who will be disqualified as a kaitiaki in subclause (4) of clause 184.

In the bill, we talk about criminal history, and in there we say “the person has been convicted within the last 5 years of an offence relating to fraud or dishonesty (whether convicted in New Zealand or overseas):”. So we are saying that a person is disqualified if they have been convicted within the last 5 years. My amendment is suggesting that 5 years is too low—5 years is too low—and I am suggesting that that should be lifted to at least 10 years. The reason why I have said 10 years is that Māoris have got memories like elephants, and when you have committed a criminal offence that stigma, even though you have served your time and you have served your punishment, remains. I want to make sure, for the benefit of Māori land owners, that they do not get themselves in a situation with a kaitiaki who has just come out of a “criminal history”—and it says there: for “fraud or dishonesty”—where the limit is only 5 years. So I just want to make sure that I have explained why I think that is necessary—that we lift that up from 5 to 10 years.

In the last minute that I have—if I could ask the Minister to turn to clause 193, which talks about the process for appointing kaiwhakahaere. In subclause 4 of clause 193, as I interpret it—and the Minister may have a different view—we talk about “The court is not required to direct the chief executive to arrange a meeting of the owners under subsection 2(a) if the court is satisfied that—(a) the proposal to appoint a kaiwhakahaere has already been sufficiently considered by a meeting of the owners; or (b) the matter requiring the appointment of the kaiwhakahaere is sufficiently urgent to justify appointing a kaiwhakahaere without a meeting of owners being held; or (c) in relation to the matter requiring the appointment of a kaiwhakahaere”, and it goes into the subparagraphs. My amendment is that I actually think that, whatever we are doing with Māori land, Māori land owners should actually meet about it. That particular clause, as I read it, actually gives the chief executive—

Tēnā koe, Mr Chair. Kia ora tātau katoa e Te Whare, i ā tātau e wānanga nei i tō tātau whenua.

Ka tangi ake ki te āhuatanga ō wā tātau mate e hoa mā, te āhuatanga ki a Iwikatea Nicholson e takoto mai rā ki tōna marae, ka mutu, ki a Ngāneko Minhinnick nō nā tata nei a ia i tukuna atu ai ki te kōpū o papatuānuku; tērā momo kua ngaro atu i ā tātau. Me tangi ka tika; waiho rātau kia okioki.

Anei tātau e hui nei i tēnei pō, kia ora tātou katoa.

[Thank you, Mr Chair. Acknowledgments to us all, the House, as we here debate our land.

I really grieve the circumstances of our deaths, fellow colleagues: that one relating to Iwikatea Nicholson, lying over there upon his marae and, furthermore, to Ngāneko Minhinnick, who was just recently released into the bosom of Mother Earth; that ilk is lost from us. How fitting, indeed, that we mourn; allow them collectively to rest.

Here we are, meeting here this evening; my appreciation to us all.]

If I can just say that we pay our respects to Ngāneko Minhinnick and Iwikatea Nicholson today, who have recently passed away, in this last week, and on their marae up in Levin—huge advocates for kaupapa Māori, tikanga Māori and, indeed, Māori land. So I just wanted to pay respects to them.

The last time we were debating this bill a number of members made a few comments. I would like to go back to them, just for the record, to make sure that we cover those off and, indeed, address some of the issues that the member Meka Whaitiri has put towards the bill tonight.

Some members question aspects of the bill that are actually features of the current Act and have long been part of Māori law—land law, at least. Pita Paraone referred to clause 170, which requires the Registrar-General of Land to show a governance body as the registered proprietor of Māori freehold land for which it was appointed. The member said this was a departure from the current process, and suggested that this was the first step to bringing Māori land under the general land title system. Actually, I can tell the member that Māori freehold land is and has been a part of the wider land transfer system of titles in this country since its inception—since 1870, in fact.

💬 Pita Paraone: I think what I actually said is that it would do away with the Māori Land Court, which is much different from what you’ve just said.

I do not want to say too much to Mr Paraone, but section 10 of the current Land Transfer Act 1952 makes Māori freehold land subject to that Act, and sections 1 to 3 of the current Te Ture Whenua Maori Act 1993 require every Māori Land Court order that affects or relates to the title in any Māori freehold land to be sent to the land register for registration under the general land title system. If the member has any concern about the registration process then I think he is about 150 years too late.

To clarify this for the member, I note that the records of the Māori Land Court are a part of the court register and not a land register, and they record the decisions and proceedings of the court. We currently have only one land titles register in this country. There is no current statutory provision for the Māori Land Court records to be a land titles register. The bill will change this, Mr Paraone. For the first time there will be a formal Māori land register provided in statute and backed by statute, sitting alongside the land transfer register of titles. I hope that helps the member. In fact, Māori land titles will be protected by a dual system of registers, and I will say a little bit more about that for the member’s benefit when we get to Part 8 of the bill.

The member also questioned why a minor who is a sole owner of a parcel of Māori freehold land could not have that interest protected by having a governance body appointed. As we discussed during the debate—I think it was Part 3—the bill provides a mechanism for the interests of minors to be protected, namely through the appointment of kaiwhakamarumaru, and when it comes to governance bodies I would like to point out to the member that under the current Act you need at least two owners to form a Māori corporation. Under the previous Act it required at least five owners, and before that at least three owners. So, once again, this bill is simply building on existing approaches in law, where it is sensible enough to do so.

The member Adrian Rurawhe referred to clause 156, as did the member Meka Whaitiri, and questioned why, when a governance body is appointed, the owners become the beneficial owners and not the legal owners. He suggested there could be other options, such as appointing a custodian trustee. It does not matter whether you have a custodian trustee, which under the bill the owners can still choose to do if they think that is the best option for them, or whether you just have a governance body. In either case the trustee or the governance body becomes the legal owner of the land.

As I explained when I took a previous call on this, this is no different from the current law where either the custodian trustee or the responsible trustees of an ahu whenua trust or a Māori incorporation become the legal owners of the land. The owners themselves do not become the beneficial owners. They remain the beneficial owners. [Bell rung] Mr Chair?

The CHAIRPERSON (Hon Trevor Mallard): I am going to call the Minister, but I am going to reiterate a warning that I have given to the Minister previously about reading speeches. I know he is replying to a lot of the comments, but the practice of Ministers reading speeches in Committee is something that is certainly to be discouraged and has been discouraged by Chairs and Speakers in the past.

Thank you, Mr Chair. I appreciate the help. I think that because of the importance of this bill I wanted to make sure this is on record and just for the purposes of replying to the points. But the point is well made, and I appreciate that.

The CHAIRPERSON (Hon Trevor Mallard): Sure. The third reading is the normal place to do that, but carry on.

Sure. Thank you. I have talked about having taken a previous call, and we spoke to some of these issues. So I just wanted to reiterate that the legal owner simply holds the land on behalf of the owners, and for their benefit, in accordance with the conditions that the owners set out in their governance agreements. So it is pretty simple and straightforward, and I hope that helped Mr Rurawhe.

Louisa Wall also questioned the issue, as did Meka Whaitiri—I think, under clause 193. Kaiwhakahaere will be appointed by the Māori Land Court, and the process involves a meeting of owners so the court can be informed of the owners’ views before making an appointment. The first point to make is that this is also the current process under current law for appointing agents for the owners, under section 10 of the current Act. I will not go into what the current section 10 is—simply to make that point. But the process under the bill for appointing kaiwhakahaere is basically the same as the current process for appointing agents. The chief executive has the responsibility to report the views to the owners, and this is, I am told, not a power of recommendation.

Can I finally just go to Louisa Wall, who raised a concern about the possibility of having more than one potential representative entity and how it would be determined which one would have priority. I am advised that there is no reason why, amongst a group of owners, there cannot be more than one entity that represents a hapū, an iwi, associated with that particular piece of land. I think the real point to be made here is that the owners do not have to appoint any representative entity as their governance body if they do not want to. That is the great thing about the bill; there is an element of choice available to them. It is not about telling them what to do. It is their choice in the end.

I want to—finally, just in the time left—talk to Meka Whaitiri’s comment about financial implications associated with the governance model. The exposure draft did indeed require existing trustees and incorporations to transition to the new governance model. I think that it will be clear to the Committee that we attempted, through the changes made, to take that away. As a consequence of the changes that have been made now, existing trusts and incorporations will not have to face the costly transition unless they wish to, by their own choice, move to adopt the new model. I think that has been well canvassed, so I do not intend to go over that.

Meka Whaitiri also wanted to take in her amendment to clause 154, which she referred to just recently. She suggested a change, to clarify that this subpart include provisions about governance entities and how they are reviewed. Clause 154 summarises the provisions relating to governance entities, and that is set out in Part 5. I think it would be very misleading to include the proposed changes in this provision. Under the bill, the role of the Māori Land Court is limited to reviewing the process by which the governance agreement is prepared, and not to review the governance agreement itself. That is important.

Meka Whaitiri also suggested amending clause 184 to provide that a person may not be appointed as a kaitiaki if they have been convicted of dishonesty offences in the last 10 years—that is the substance of her amendment. I do support the concerns that she has been talking about, in terms of dishonestly of kaitiaki, but I think that that proposed change would hold the governors of Māori entities to a much higher standard than those who are currently managing other companies. I am advised that clause 184 is modelled on section 382 of the Companies Act 1993, which limits criminal history and exclusions to convictions in the last 5 years. So I think there is an element of needing to have consistency across the board, and not just have it that Māori land is subject to a higher threshold.

So I think that the two provisions need to be consistent. But the one thing that Māori land owners did say in our consultation process about this whole issue was that our people should be held to similar standards—

I regret that the time has come for me to leave the Chair.

Progress to be reported presently.

House resumed.

The Chairperson reported the Point England Development Enabling Bill with amendment, the Energy Innovation (Electric Vehicles and Other Matters) Amendment Bill without amendment, the Land Transfer Bill with amendment, and progress on Te Ture Whenua Māori Bill.

Report adopted.

The House adjourned at 9.56 p.m.