Te Ture Whenua Māori Bill

When we were last considering the bill, we were debating Part 5. The Minister the Hon Te Ururoa Flavell has the call and has 34 seconds remaining, if he wishes. I call Peeni Henare—tēnā koe.

Tēnā koe, Mr Chair. I was hoping that perhaps Minister Flavell might use his seconds just to mihi us and bring us back to our kaupapa. It has been a while since we have had our hands on Te Ture Whenua Māori Bill. In fact, it has been quite a number of months where we have been working through parts, part by part, obviously, and we are now at Part 5. So I do apologise if some of this does seem a little repetitive to yourself, Mr Chair, and the Committee, but there is going to be a little bit of a recapping process. We may be going over a little bit of ground that I know the Minister has actually addressed, some of the Supplementary Order Papers (SOPs) in particular, in his responses as the Minister in the chair.

I want to start my contribution today, obviously, by (1) welcoming everyone back to Part 5 of this particular bill. I will move straight to the amendment tabled by my colleague Meka Whaitiri on Wednesday, 31 May 2017. I acknowledge that the first three parts of that particular amendment, as tabled by my colleague, are to parts we have already debated, so I will not go over those. But I will come to the amendment to clause 154 as a start, where it says: “In clause 154(1)(b), after ‘how governance agreements are’ (page 129, line 12), insert ‘reviewed and’.” I have a look there, and clause 154(1)(b) says: “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 governance bodies, and how governance agreements are cancelled.” We are hoping that through this amendment we can include the words “reviewed and” as part of a more robust process for this particular bill.

The other amendment is to clause 184, and we will just flick through the pages here. This was, if I recall correctly, addressed by the Minister, but if we could have a refresher, if you like, from the Minister in the chair on this particular issue—because I do think it is an important one. I recall that I raised it at one point in time; I know that other colleagues in the Committee have too. The amendment was to clause 184 around kaitiaki number and eligibility requirements. In clause 184(4)(a), it says there: “A person is disqualified from being a kaitiaki if any of the following applies: Criminal history (a) the person has been convicted within the last 5 years of an offence relating to fraud or dishonesty”. The last 5 years—that was the issue that we had. We are proposing in the amendment tabled by my colleague Meka Whaitiri that that be extended to 10 years.

This is for reasons which are, to me, anyway, quite obvious. If there is one thing I have noticed in my work as a land administrator, it is that those who are qualified or those who do qualify to be able to hold those positions are actually quite hard to find. They are quite hard to draw out of the community, the whānau, the iwi, and the hapū to be leaders in those particular fields of administration. We know of instances where some people have actually been convicted of things 8 to 10 years ago who, according to this particular bill, will now qualify to be kaitiaki or qualify to be administrators of Māori land. That is of great concern to us. Five years is not long enough, and the amendment, as tabled by my colleague, is looking to extend that to 10 years, which I think is a reasonable step. Ten years is a reasonable step when we consider other Acts that, actually, quite clearly describe the qualifications for those who want to be administrators, trustees, etc. So that is one of the amendments tabled by my colleague Meka Whaitiri.

The other one, as tabled by Meka Whaitiri on Wednesday, 21 June, refers specifically to clause 193, for which this amendment is asking: “In clause 193, delete subclause (4)”. Subclause (4) is quite clear: “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”, and it lists (a), (b), and (c), and subparagraphs (c)(i), (c)(ii), and (c)(iii). What this particular amendment from my colleague Meka Whaitiri is proposing is that that particular subclause be deleted in its entirety.

The other amendment, and I spoke very briefly to this at one point in time—I do understand that the Minister did give some form of response, but I would like to just reiterate my SOP, SOP 322, to the floor, with reference directly to clause 197. I think it is actually strengthening that particular clause. The purpose of this amendment is so that a court-directed kaiwhakahaere, who has been appointed to report to the owners, to report on any matter referred to in clause 196(1) at a meeting called by the chief executive—such a meeting must be held every time a direction is issued under that clause. It must be held.

I flipped through the schedule and looked at some of the responsibilities of the kaiwhakahaere, and I do recall, if I recall correctly, the Minister in the chair actually talking about how he felt that that clause was robust enough. I am going to argue once again that I do not believe that it is, and that to say “must” instead of “may”, while minuscule to some, is actually a very important thing. It actually requires more engagement between the kaiwhakahaere, the court, and those particular landowners. I think that is something that is worth pursuing in this particular debate on Part 5. Just a reminder—that is SOP 322, in my name, looking specifically at strengthening clause 197 with the direction of “must” instead of “may” with regard to meetings being held every time a direction is issued under that particular clause.

So those are the amendments that are sitting on the Table at the moment. I would, if I could, encourage the Minister, just because of the drawn-out nature of this particular bill—I think it would be important and helpful to the Committee if he is able to, if he could, restate those positions on the amendments, if those have already been stated; if not, then that he do state a position on those particular amendments, for or against, however that might fall. That will allow us to move on to other clauses in this particular bill. I will wind up my contribution on this particular part in the hope that the Minister will address those. Thank you.

It is my pleasure to actually take my first call in the Committee stage of Te Ture Whenua Māori Bill. For various reasons, I have been fortunate enough to have been granted leave to attend to events up in Tai Tokerau while the Committee stage has been going on. My apologies if I do repeat issues that have been raised before, but, as I said, this is my first contribution in the Committee stage of this bill.

In addressing Part 5, I just have to apologise because I will be flicking through, from Part 5 back to the schedules and back to other parts of the bill as well, because they tie up—just by the nature of the size of the bill, being some 16 parts and eight schedules, it takes a bit of to-ing and fro-ing through the pages of the bill to actually pull together various arguments.

Clause 154(2) talks about—I will read what it says: “A governance body, whether it is a body corporate, the trustees of a trust, or a statutory office holder, is managed by its kaitiaki, being the persons who occupy a position in the body that is comparable with that of a director of a company.” My issue here is the use of Māori terms in what is, for all intents and purposes, the English version of this.

The problem can be that there is confusion for our people around the term “kaitiaki” in this. Kaitiaki in Māori means—“tiaki” means to care for something; “kai” at the front of a verb has the effect of putting e-r on the end of a word. So “tiaki”, meaning to care for something; “kaitiaki”, meaning a carer. For me, in this context, a kaitiaki is not really something that is comparable to that of a director of a company. To direct something is, like, to tohutohu. In my belief, and I will admit I am not a fluent speaker of Te Reo Māori, a more appropriate term would have been a kaitohutohu, but there are probably even more appropriate terms to use for a director of a company. My preference, in these English versions of bills, is actually just to use English terminology, and if there is a Māori translation, to have a Māori translation there. But certainly for somebody in a position that is comparable to that of a director of a company, kaitiaki is not the best term to use.

I will move on to clauses 154(3)(a) and 154(3)(b)(i). It is the word “owners”. I will just read what subclause 3 says: “The types of governance body that may be appointed are set out in section 158. The key difference between the types of governance body is the extent to which owners or the court have a role to play in the appointment of kaitiaki, as follows: (a) if the governance body is a rangatōpū, kaitiaki appointments must be approved by the owners …”. Further down it says in subclause 3(b): “(i) the owners will have direct involvement in the process for appointing a kaitiaki …”.

That sounds great, on the surface. My issue is with who the owners are. Which owners? It makes it sound like all owners will have input into these decisions. The reality is that it is really only the owners who, basically, can be contacted and know that there is going to be a meeting of sorts to make these decisions. This particular clause 154(3) asks us to refer to schedule 3. I refer to schedule 3, clause 5(2), that “The incoming owners must approve the appointments of at least 3 kaitiaki who are eligible under section 184(3) to hold that position.” Clause 5(3) of schedule 3 states: “If the proposed rangatōpū is registered as a body corporate or operating under an existing trust deed, the incoming owners may approve existing directors or trustees as kaitiaki or appoint new kaitiaki,”.

It talks a lot about the ability of owners to influence things such as appointments of kaitiaki. If we flick back in the bill—this is clause 51A—it talks about the participation thresholds. This talks about—in fact, I will read it: “(1) The participation thresholds that must be satisfied for participating owners of a parcel of land to validly agree to a decision under Parts 1 to 9”—so that includes Part 5 that I am talking about—“or a governance agreement—(a) are the thresholds specified in this section;”.

I just want to go through those participation thresholds. If there are 10 or fewer owners of a parcel of land and they are making a decision, say, on the appointment of a kaitiaki, as in Part 5, then all the owners must participate. That sounds pretty straightforward. However, clause 51A(3)(b) states that if “there are more than 10 but not more than 100 owners, there must be participation by at least 10 owners whose individual freehold interests total a 25% or more share in the parcel:”. So that means if there are up to 100 owners, 90 percent of those owners may not actually participate in this decision making, and when it comes to a vote, you need a majority of those 10 owners who are participating. So, in other words, six can make the decision on behalf of the other 100. Six out of 100—so 6 percent of the owners can make a decision on behalf of the rest of the owners.

I understand that there needs to be some sort of threshold. I just think that these thresholds that affect Parts 1 to 9, including Part 5 that I am talking about, are set pretty low. In Te Ture Whenua Māori Bill that we are discussing, the problem is not so much of Māori land being lost out of ownership, from Māoridom into non-Māori hands. It is more that some owners may be disenfranchised by others who are owners—others who are probably more knowledgable of processes and laws such as this.

However, I will go on to talk about—if there are more than 100 but not more than 500 owners, there must be participation by at least 20 owners. So 20 owners out of 500 is less than 5 percent. So 5 percent of the owners may participate in this decision making, and of those 20 you need a majority of the 20, so that is 11—11 people can make a decision that overrides the interests of 489 people. Subclause (3)(d) states that if “there are more than 500 owners, there must be participation by at least 50 owners whose individual freehold interests total a 10% or more share in the parcel.” In other words, you could have, say, 2,000 owners but only 50 of those owners need to participate in the decision making, of which you need a majority. So that is 26 people out of 2,000—my maths is not that fast, but it is a very low percentage of people who can make decisions on behalf of the vast majority.

Like I said, I understand that there needs to be some participation threshold because some owners may be dead. Many owners cannot be contacted. We have to look at the reasons why some of those owners may not be contactable. It could be, for example—as we know, there are many owners, New Zealanders, Māori, living in Australia now. So what happens if the owner lives in Australia, works up in the mines somewhere, is barely contactable, and the times when the meetings are being held are possibly inconvenient to that owner who happens to be living overseas—

💬 Pita Paraone: Too bad. They miss out.

As my colleague from New Zealand First says, it is too bad; they miss out. That to me is really unfortunate. That person may be, like I say, working in the mines. They may not be able to access the hui that is being held by Skype or even by phoning in, so there are a number of reasons why owners may not be able to participate and so I just think that the thresholds are set way too low. I think that the—

I want to take a short call. I have a specific question—and I will reiterate, sort of apologising to the Committee and to the Minister, that it is going to be an ongoing, important point: we have this huge legislation; huge Supplementary Order Papers; so many, many changes; judges and lawyers and the like have admitted to how difficult it has been to keep on top of what is happening here. It is going to be the nature of the debate as well, and, of course, that is one of the main points of the Green Party as to why we cannot support this bill. We want it to be fully understood and fully mandated by our people. Regardless of what is in it—the good points and the not-so-good points—it needs to be fully mandated and fully understood by our people.

I specifically wanted to ask whether the Minister in the chair, Te Ururoa Flavell, could address Part 5, clause 158, “Who may be appointed as governance body”. So let us just be really clear—yes, there we go, flipping around, that Part 5 is about who has the authority to act in relation to Māori freehold land. Then clause 158(1) sets out governance bodies.

💬 Hon Te Ururoa Flavell: Can I get a reference?

It is clause 158, “Who may be appointed as governance body”, and, again, I hope I am looking at the most updated version. “Who may be appointed as governance body”—clause 158, then it goes to clause 158(1): “Any of the following may be appointed as a governance body for Māori freehold land:”. It outlines who may be appointed as a governance body for Māori freehold land: a Māori incorporation, trustees of an ahu whenua trust or a whenua tōpū trust, a new rangatōpū, an existing rangatōpū, an existing statutory body, a representative entity. But then it goes to clause 158(2): “However, a governance body that is a rangatōpū, a Māori incorporation, or the trustees of an ahu whenua trust or a whenua tōpū—(a) must not”—so this an exclusion, I think—“be a party to more than 1 registered governance agreement;”.

What I am getting at here, for the benefit of all of us and for our people, is this: could the Minister explain this particular exclusion—are we talking here in the legislation about conflicts of interest and who has got their hands in where? I could be wrong, but it would be great to have some clarity—trying to get at the nub or trying to get at the heart of what this particular clause 158 “Who may be appointed” is getting at, whom it lists, and then whom I think it is excluding.

It then says in clause 158(2), “However, a governance body that is a rangatōpū …”—and so forth—“(a) must not be a party to more than 1 registered governance agreement …” and then it goes back, I think. So this is the thing. It is an exclusion but with an inclusive clause: “…but (b) may, if the governance body is already managing Māori freehold land under a registered governance agreement, be appointed to manage additional Māori freehold land …”.

I think the change to this particular bit that is crossed out is “under replacement” instead of “under a new”. So if the Minister could just clarify that. I mean, we can go through this legislation. It would be good to have the narrative of either what problem is trying to be addressed in this particular part, in this particular clause, in this particular line of the legislation. And, actually, that is still not going to suffice in getting clarity, I think, for our people, but we are here to try to take the opportunity to ask the Minister. Could the Minister please try to get to the core of the particular clauses that I have raised and that I am sure my other colleagues will raise tonight in the Committee. Thank you.

Tēnā koe, Mr Chairman. I am pleased to be able to take a call in this Committee stage of Te Ture Whenua Māori Bill, and I want to concentrate on clause 156, “Rights of owners of Māori freehold land managed under governance agreement”. If I can recall correctly, the last time this bill came before the House and was in the Committee stage, the Minister took some time to remind me that Māori land has always been subject to registration with the Land Transfer Office. But what he omitted to tell the Committee is that while that may be so, land that was owned by more than a certain number of owners was not registrable in the Land Transfer Office—if I can recall correctly. I only say so in that I remember the 1967 Māori land Act where the then Minister introduced a clause that allowed for Māori land that was surveyed with four owners or fewer to become what was termed “Europeanised”. Part of that process was that they could be registered with the Land Transfer Office.

One needs to ask the question: why was it limited to just four owners? It is quite easy to imagine the difficulty it would be to register all Māori land that was surveyed but had a large number of shareholders. I just want to say that it seems to me that this bill is aimed at overcoming that difficulty, in terms of registration, by recognising governance entities as being legal owners. So, at the moment, I have interests in Māori land, of which I am a legal owner. But if I choose, and my fellow owners choose, to appoint a governance body to administer that land, then I lose my legal ownership—it automatically transfers over to the governance body. I just wonder whether, in fact, many of our people out in the real world realise that they actually lose their legal ownership if they choose to appoint a governance body. That is how I read this particular clause. If I am wrong, then the Minister will certainly correct me.

Again, it is all about, it would seem to me, making it much easier for certain groups to be able to, what I would say, manipulate—manipulate the ability to do what they want to do, even if it is against the wishes of the majority. I hope the Minister may take a call to explain that particular aspect in terms of owners losing their legal right as owners to a governance body, which then becomes the legal owner.

I move, That the question be now put.

Motion agreed to.

The question was put that the amendments set out on Supplementary Order Paper 279 in the name of the Hon Te Ururoa Flavell to Part 5 be agreed to.

Amendments agreed to.

The question was put that the following amendments in the name of Meka Whaitiri to clauses 154 and 184 be agreed to:

in clause 154(1)(b), after “how governance agreements are”, insert “reviewed and”.

in clause 184(4)(a), replace “5” with “10”.