Te Ture Whenua Māori Bill: a good idea stuck in a political mire

Te Ture Whenua Māori Bill has been mired in controversy since the first draft came out last year. At the heart of the concern is the lack of consultation by the Crown with current Māori landowners. As the Waitangi Tribunal found in its urgent report on the issue, even though Chris Finlayson and co. don’t like it, turning up to our regions with a Powerpoint presentation is not consultation. The Crown also did itself no favours by trying to muzzle current Māori Land Court Judges from submitting on the Bill and by ignoring the calls of iwi leaders and the Māori Council to slow the process down and consult properly.

All of that smacks of someone having had a “good idea” that they’ve now attached themselves to; they won’t listen to any criticism or critique because its no longer a rational debate, its a legacy and pride issue. The reactions of Treaty Negotiations Minister Chris Finlayson, Māori Affairs Minister Te Ururoa Flavell and the Māori Party are a case in point; unnecessarily aggressive and aggrieved when most agree the current Act needs revision and the current state of Māori land tenure is frustrating. Hey you lot, the Tribunal, the iwi leaders and Māori landowners are just trying to make the Bill better, not sink it.

Another problem has been the involvement of the Māori Trustee. Not many whānau outside of Wellington have much trust in the Māori Trustee. The ham-fisted approach they took to buying the Mapuna Atea Farm from a poorly governed Māori Education Trust against the wishes of local tāngata whenua was a testament to how removed the Māori Trustee is from the community it is meant to service. That reputation has been a drag on the progress of the proposed Bill.

Yet for all the fireworks, not many outside of officialdom and iwi leadership seem to have taken the time to look at what is in the Bill. The Bill is here because in 2012, a panel reviewed Te Ture Whenua Māori Act 1993 and made a number of recommendations to the government:

  • Use and development of Māori land should become easier;
  • The governance bodies for Māori land should have clearer duties and obligations;
  • Processes relating to Māori land should become easier by making them administrative rather than requiring court approval; and
  • Disputes relating to Māori land should, in the first instance, be resolved through mediation rather than through the Māori Land Court.

I can only agree. I have read the proposed Bill and a number of critiques and summaries, and there is a lot in there that is good legislation.

The Purpose and Principles of the proposed Bill is quite similar to the 1993 Act. There is greater emphasis on use of land in the new Purpose and Principles which says “owners of Māori land have a right to develop their land and to take advantage of opportunities to develop their land” against the current wording, “facilitate the occupation, development, and utilisation of that land for the benefit of its owners, their whanau, and their hapu”; that’s kind of the point of changing it at all.

The new Bill proposes three categories of governance: Māori Trust Boards and Māori Trustees; hapū or iwi entities who have something to do with land; and Rangatōpū, which is the new boy on the block. Rangatōpū will see existing owners change their governance arrangement to establish a body corporate or a private trust. A private trust means that one or more individuals (in this case the owners) are the beneficiaries rather than a public trust which has to have a charitable purpose. A body corporate means the land is run by a corporation (a legal person in its own right) to which owners would be shareholders. I think the greatest weakness here is owners only need the agreement of owners who together hold 50 percent of the current shares to change the governance arrangement; I’d be more comfortable with a 75 percent, which ensures really wide agreement to this fundamental change. In addition, it’s really not clear if this will have implications under the Companies Act. it would be sensible to think so, but there is precious little clarification at this stage.

In trying to simplify the use and transfer of Māori land, the new Bill would also see the establishment of a Māori Land Service. Minister Flavell says that a “new Maori Land Service will bring together existing information and services for landowners, as well as providing advice and support. The Maori Land Court remains as a key judicial body.” There are two significant roles for the new service. Firstly, transfer of title: at the moment you need a Court Order; under the new regime it will be an administrative process, notified and confirmed if there are no objections. I think that is a fantastic development. Furthermore, the new service is central to the conflict mediation process, as they will appoint the facilitating Kaitakawaenga for Māori Land Court. Good conflict resolution requires excellent mediators; I hope they have a good pool.

It’s over 300 pages, so feel free to read it yourself. My view is that I support much of what is in the Bill, but it misses two very important areas which will frustrate the achievement of its Purpose and Principles.

The key problems in developing Māori land are not just poor governance in Māori land trusts and incorporations. The other two big problems are the role of local government and financial institutions:

  1. Most Māori land is zoned rural by local government, so there are limited opportunities to develop it, and local government charge unrealistic and burdensome prices to gain a resource consent to develop land.
  2. Secondly, owners struggle to raise finance for development, because banks are wary to lend on land with multiple ownership.

Our friends building next to their tupuna whare on the East Coast are a case in point; they have been held up at every turn, not through lack of will, but by ignorant and poorly designed processes by local government and financial institutions. This new Bill and the new model addresses the problems that develop at home between whānau when making a decision on land, but really still has a way to go to resolve issues that relate to finance and local government. For example, there is a proposal for rates to be cleared, but none I could see around resource consents or zoning.

We want more of our whānau to come home, build on their land, run businesses on their land, regenerate our environment by planting and managing their land. But it’s no good if whānau come home to do any of these things and they can’t get money to launch their idea and can’t afford the consent to bring it to fruition.

6 thoughts on “Te Ture Whenua Māori Bill: a good idea stuck in a political mire

  1. Nice critique Graham. Personally, I think lack of ‘consultation’ these days is just code for ‘hey wait to see how we can lever the situation’ particularly where Maori ‘leadership’ is the supposed aggrieved actor in the transaction.

    Is it central Govts role to prescribe to local Govt how to reframe land planning to enable these lands? I don’t think so. It is these new joint planning committees though Govt is prescribing upon local Govt as treaty settlement outputs. Perfect in fact.

    Same banks and really, is this the right lending / partnership model moving forward? Disruption awaits.

    1. Kia ora Jo, thanks for your thoughtful comment. My experience as a public servant from the late 90s was that this has always been the case with consultation, but iwi are able to leverage a lot more now than they were then. I’m not sure whose role it is to reframe land planning nor the right lending model, but I definitely think both are key to change from the current intractable mess.

  2. “local government charge unrealistic and burdensome prices to gain a resource consent to develop land” – are resource consent fees really a big barrier to development? Most development on rural land will be farming, horticulture, or forestry won’t it? Aquaculture might be the exception.

    1. A good question e hoa. Kāi Tahu particularly identified this as an issue; perhaps they’re further ahead of other iwi in terms of moving beyond rural development as a key economic activity?

  3. Kia ora ano Graham

    I just get tired of seeing any disaffected Māori ‘voice’ v some Govt initiative as being that of supposed ‘leadership’. Too glibly awarded in todays socio – politico machinations, in my view to Iwi chairs and their committees. I’d take considerably more notice of the opinions of those directly affected ..ie….land owners.

    1. I broadly agree with that. The challenge, of course, is there is an average of 96 landowners on every block of Māori land; how can a process be run that is more consultative and inclusive, such as you are suggesting, but also achieves the aims of arriving at new legislation in a timely manner? In any case, the Tribunal report was clear that consultation hasn’t occurred in any substantial manner, so perhaps we could start there. Thanks for your comment.

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