The New Governance Model
By Ellipsister, Co-Editor
(See also Part I: Te Ture Whenua Māori Reforms)
Currently, most decisions about Māori land require approval from the Māori Land Court (MLC). The reforms attempt to remove this barrier and enable Māori landowners to make more decisions about their whenua without needing MLC approval. For instance, only Māori trusts and incorporations can own Māori freehold land, and landowners must apply to the MLC to create a trust. Under the Draft, Māori landowners can create a Rangatōpū and register with the Māori Land Service. Also, iwi and hapū will be able to own Māori freehold land.
The new governance arrangements are proposed in response to the feedback received from Māori landowners and iwi groups. Some of this feedback includes uncertainty around what a trust can and cannot do due to a lack of clarity, consistency and accessibility of the rules.
In attempting to address these concerns (and others), the Draft proposes new ways for Māori land to be held, governed and managed for the purpose of ensuring landowner autonomy, consistency of rules and processes, and better accountability mechanisms. In particular, the Draft proposes the establishment of a Rangatōpū (as mentioned above) to address the issue of consistency around powers, duties, and obligations for all Māori land entities.
The Rangatōpū would act as owner over the whenua and would be able to enter contracts, raise finances and do whatever is permitted in the governance agreement. The draft Bill provides that the rules and processes for governing the whenua are to be determined by the landowners and can be designed to reflect their tikanga. In addition, the Rangatōpū must keep owners informed about assets and activities related to the whenua they are exercising governance over, and that they are required to improve the level of owner participation with the governance body. The consultation and notice requirements have been strengthened to reflect modern technology and are part of the improved safeguards for all Māori landowners.
Rangatōpū infographics from the Consultation Document
In summary then, the new governance provisions in the Draft propose to:
- Improve utilisation of Māori land
- Empower participating owners to make decisions over their whenua
- Empower Māori landowners to create a governance agreement and to define their rules and processes according to their tikanga
- Create safeguards for all owners through more robust notice and consultation measures
The new governance model also reduces the role of the MLC in administrative matters, but refocuses the jurisdiction to deal with points of law or technical matters, and to review processes where a complaint is raised. Some concerns have been raised as to whether the MLC will be disestablished, the answer is no. The MLC is retained under the Bill.
While some have supported the governance changes as giving more autonomy to Māori landowners, and reinforcing the principle of rangatiratanga, others have criticised the model as increasing bureaucracy and compliance costs, and expressed concerns over loss of control to iwi organisations. For instance, the draft enables iwi and hapū entities to acquire and own Māori land. Although many see this as a benefit that will help ensure Māori land remains in Māori hands, others see it as an avenue for the few to make decisions for the many. A common concern is the potential for well resourced iwi and hapū organisations to put pressure on smaller whānau trusts.
In terms of the compliance costs, many are worried about the increased costs in transitioning to the new governance model suggesting with the new requirements owners are likely to require specialist advice as well as assistance with the preparation of documents to ensure legal soundness of their operations which can be particularly onerous especially for smaller trusts.
Another concern often raised is around the decision making thresholds. However, the draft has retained the existing thresholds and provides that Māori Landowners may increase those thresholds in their governance agreements but cannot lower them. Significant decisions will still require majority (75%) agreement. In this sense, the Bill retains the safeguards. However, as the Draft also makes it easier to convert whenua Māori to general land, this reduces some safeguards as it means if whenua Māori is converted to general land it would no longer be covered by the protections in the Act.
As you can see there is a range of views concerning the TTWM reforms. This post is not intended as an exhaustive list of either the positives or negatives. It’s a summary, to hopefully help people understand the kinds of things the Draft is attempting to fix, and the issues identified by some of its critics.
 Rangatōpū means a governance body..
 Under the Draft, the governance agreement can take one of three forms:
A new governance agreement (requiring 50% of participating owners to vote, for the agreement to be binding on all owners)
Grandparent an existing agreement (noting the Bill will override any conflicts and will be used to fill any gaps in the agreement)
Default governance agreement (this kicks in, if after 3 years the governance entity has not opted for 1 or 2 above).
 Participating Owner means an owner, of an interest in Māori land, who when owners are required to make a decision, takes part in making the decision