Reforming Our Whenua

By Ellipsister, Co-Editor

Are the changes to Te Ture Whenua Māori a land grab of seismic proportions, as declared by some commentators? Or a reform that will enable Māori landowners to use their whenua, according to their needs and aspirations, as suggested by the review committee? 

First of all, let’s be clear – discussions on Māori land reform must have Māori at the centre. Conversations cloaked in partisanship or that centre Pākehā voices overlook the Māori context and often fuse our diverse perspectives into one.

In July 2015, I wrote about Te Ture Whenua Māori reforms during the nationwide consultation phase: Part 1: Te Ture Whenua Māori Reforms & Part 2: Te Ture Whenua Māori Reforms. However, since then a number of significant changes have been made to the exposure draft. In brief, those changes include:

  • Option for existing Māori trusts and incorporations to continue as the same entity they are now (i.e. do not need to go through cost of establishing a rangatōpu).
  • Removal of the managing kaiwhakarite provision;
  • Revision of the purpose and principles sections to better reflect the preamble of the existing Act;
  • Option for Whānau to obtain succession to land instead of having to form a whānau trust on intestate succession; and
  • Greater discretion accorded to the Māori Land Court when considering applications to remove the status of Māori freehold land (i.e. transfer from Māori to general).

We won’t know precisely what all the changes are until the Bill is introduced to the House around March 2016. What we can surmise is that the Review Committee has taken into account the concerns of submitters.

One of the arguments I see a lot is that the reforms will enable Māori landowners to transfer their land into general title more easily to sell off. Frankly, if that is how Māori landowners wish to deal with their land, that is their choice – whether we like it or not. However, given only about 4.75% of all the land in this country is dedicated Māori land, the presumption of an impending mass sell-off following the reforms reads more like partisan hyperbole than informed opinion.

Why?

Firstly, the Māori Land Court will retain oversight to ensure any sale or transfer is done in the spirit of Te Tiriti in order to protect and retain Māori land.

Secondly, in my experience, whānau who are considering selling, are often looking at selling their shares to those within the collective or to those with a whakapapa connection to the land block. Often the arguments insist that no Māori should ever sell their land. That is over-simplistic and is as much a constraint on our rangatiratanga over our land as the arguments they are opposing. Additionally, it ignores the reasons whānau may wish to sell their shares in land, for example, to obtain the capital necessary for home ownership. Getting finance to build on Māori land also requires a license to occupy so sometimes it might be in the interest of a whānau to sell their shares in their Māori land, and use the proceeds to build on general land, or to build on another piece of Māori land where they do have a license to occupy.

Thirdly, there is a preferred recipient tender included in the reforms. This means that there is a first right of refusal to Māori with a relevant connection to the land.

And lastly, contrary to what many are suggesting, the thresholds for sale or transfer have not been reduced – they are exactly the same as the thresholds in the existing act, and include the right of landowners to increase that threshold if they wish to do so.

A bugbear of mine is when commentators are vague and use language like:

The reality however is that the land will simply be opened up to those wishing to exploit the new lax regulations…All these changes will do is make it easier to sell that Maori land, not grow it

Here, the commentator avoids centering Māori as the affected party, pushing an agenda that does not serve Māori interests in land, but rather asserts his own interest in his own ideology. In the process, painting the landowners he speaks of wanting to protect as the greedy grubby little neo-liberals that he rejects. Remember, it is Māori land, meaning only Māori can decide how they will use it. If selling is their preferred option, then that is ultimately the decision of the Māori landowner subject to the prescribed process.

Another criticism made centres around the lack of funding available to assist Māori to develop our land. This is misinformed as there are a number of funding streams available to help Māori landowners collectively and individually including Māori homeowners on general land, to address their needs. For a detailed breakdown see the Māori Housing Network Investment Strategy and KiwiBank’s Kāinga Whenua loans scheme.

In Vote Māori 2015 the Government announced:

  • a total of over $7 million to improve housing outcomes for Māori by providing practical assistance to whānau and Māori housing projects
  • a total of $7 million for Māori Housing development
  • a total of over $3 million to assist Māori land owners improve the productivity of their land

The Minister of Māori Development explained that this means there is $8.8 million per annum for Māori housing in addition to the existing funding of around $7.5 million per annum, bringing the total amount to $16.2 million per annum in 2018-19. He also announced a new fund of $12.8 million over 4 years to help Māori landowners improve the utilisation of their land and a further $3.2 million per annum to support targeted initiatives in areas where land is significantly underutilised.

I am not suggesting that these measures are a full solution to meeting Māori housing and land use needs and aspirations. Nor am I suggesting that the reforms are immune from criticism. I just think they provide an avenue for Māori to achieve rangatiratanga over our land. Our identities as Māori are linked to our whenua, and as current or prospective Māori landowners it is our voices and our perspectives that matter in these reforms. The proposed Māori land reforms are practical measures not ideological ones. There are multiple issues to consider and many whānau in many different situations so it is vitally important that we are properly informed about what is proposed and what those changes will mean for us and for our land.

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Part II: Te Ture Whenua Māori Reforms

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.

NGM_1

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[1] (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[2]. 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

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In summary then, the new governance provisions in the Draft propose to:

  • Improve utilisation of Māori land
  • Empower participating owners[3] 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.

NGM_6

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.

[1] Rangatōpū means a governance body..

[2] 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).

[3] 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

Part I: Te Ture Whenua Māori Reforms

By Ellipsister, Co-Editor

This series of posts identifies the reforms proposed in the exposure draft of the Te Ture Whenua Māori Bill. It does not take a position on them. Instead, it attempts to capture some of the key changes in a summarised format and notes the concerns raised in various forums. It is not written on behalf of any organisation. It is my personal summary having read through the consultation document and various websites and forums.

See also the full Exposure Draft  and Consultation Document 

Background

For the past 150 years or so, Māori have endured extreme alienation from our whenua through a multitude of racist laws. In 1993, the enactment of the Te Ture Whenua Māori (TTWM) Act was the result of immense effort by Māori to retain and protect the land still in our posession. It’s no wonder then, that many Māori – landowners or not, are incredibly apprehensive about the proposed changes to the TTWM Act.

The proposed changes in the exposure draft claim to:

  • Support and promote the retention and use of Māori land by its owners
  • Empower Māori land owners to pursue their aspirations for the sustainable development of their land
  • Enable Māori land owners to make decisions without needing Māori Land Court approval and to encourage owner participation
  • Respect the intrinsic cultural significance of Māori land
  • Provide an effective alternative to litigation to resolve disputes

The outcomes expected from the reforms:

  • Māori land owners making and acting on their own decisions
  • Fuller and more effective utilisation of Māori land
  • Disputes resolved effectively

Key Changes proposed by the reforms:TTWM_Tab_1 TTWM_Tab_2 TTWM_Tab_3

Upfront, that looks fine. But concerns have been raised in many forums regarding compliance costs, and the ability of a few to make decisions over the many. The latter concern generally relates to decisions to dispose of Māori land, i.e. gift or sell. It’s a concern because under Crown law, Maori land comprises only 5% of the total land in Aotearoa.

There has also been a lot of discussion about rushing this piece of legislation through without appropriate consultation. That being said what we are asked to submit on is at this stage only an exposure draft. This means that the draft proposed is not definitive, and has not even proceeded to parliamentary process yet.

The hui and workshops or clinics are said to represent an additional layer of consultation, the suggestion being that these will help to ensure that the needs and aspirations of Māori landowners and their whānau and hapū are reflected in the Bill presented to parliament. There will also be another opportuntiy to make a submission on that Bill when (or if) it passes the first reading and gets to the Select Committee process.

The thing about submissions is that we often use them just to oppose the things we don’t like. It was brought to my attention recently, that it’s good practice to also state our support for any parts that we do like. The reason being that the Advisory Committee are not mindreaders. If there is no explicit support for a provision there is a risk that it might be removed due to lack of support expressed in submissions. As such, it’s a good idea to stipulate the parts of the current Act that you wish to retain, and any parts of the draft Bill that you think are worth including in the final cut, together with any concerns or issues you have with the draft provisions.

The submissions template is divided into sections. You can view or complete a copy of the template here. Over the next few days I will deal with each of these sections highlighting both the good, bad and perhaps dubious bits. For now, it’s probably a good idea to get your head around the Consultation Document!

See also:

Part II: Te Ture Whenua Maori (The New Governance Model)