Māori Affairs Committee Parliament Buildings WELLINGTON July Te Ture Whenua Māori Bill

Transcription

1 Māori Affairs Committee Parliament Buildings WELLINGTON July 2016 Te Ture Whenua Māori Bill E te Tiamana o te Komiti mō ngā Mea Māori, tēnā koe. 1. Te Korowai o Ngaruahine Trust (TKONT) welcomes this opportunity to make this submission regarding the Te Ture Whenua Māori Bill. 2. However, please note that TKONT does not wish to speak to this submission in relation to this kaupapa. TKONT 3. In 2014, Ngāruahine, in South Taranaki, agreed to sign a Deed of Settlement with the Crown. That settlement included an acknowledgement of historical Ngāruahine grievances and apology for past breaches of the Treaty of Waitangi by the Crown. 4. During the negotiations, Ngāruahine approved TKONT as its post-settlement governance entity. As a pre-requisite to the signing of the Deed of Settlement, TKONT was established under its own Trust Deed in 2013 (Trust Deed - 20 June 2013 refers). 5. TKONT is governed by a Board, which is made up of representatives from each of the six hapū making up Ngāruahine. Its operational arm is based in Hāwera. Rohe of Ngāruahine 6. The rohe of Ngāruahine begins at the headwaters of Waingongoro River at Panitahi (Fanthoms peak see also the illustration below). The boundary then travels over the peak of Taranaki Maunga, to travel west down the Taungatara Stream to the moana. From the mouth of the Taungatara Stream, the boundary runs south for approximately 45 kilometres along the South Taranaki coastline, before reaching the mouth of the Waihi Stream. From here, the boundary runs up the Waihi Stream, merging once again with the Waingongoro River, to return back to Panitahi. 7. Given its close genealogical, historical and cultural associations, Ngāruahine also shares areas of common overlapping interests with neighbouring Taranaki iwi to the north, and Ngāti Ruanui to the east. Te Korowai o Ngāruahine Trust, 147 High Street, Hāwera PO Box 474 Hāwera

2 Illustration 1: Rohe of Ngāruahine (Ngāruahine Deed of Mandate 2014) Submission Historical context 8. The historical actions and consequences of the Crown s breaches of the Treaty of Waitangi in South Taranaki in relation to raupatu (land confiscations) is well documented (see Ngāruahine and The Trustees of Te Korowai o Ngāruahine Trust and the Crown Deed of Settlement of Historical Claims August 1, 2014, pp 42-50).

3 9. Briefly, in the early 1880s, although approximately 25,000 acres of lands confiscated during the Māori Land Wars in Taranaki was eventually returned to Ngāruahine as reserves, the Crown retained over 147,000 acres, which was then on-sold to settlers. 10. Almost all the land returned was under non-customary, individualised title, much of it located in bush. Reserves were not returned to Ngāruahine out-right, but placed under the control of the Public Trustee, who then sold or leased in perpetuity large areas to European farmers. 11. In 1963, the titles of all remaining Taranaki reserves were amalgamated into what became known as the Paraninihi ki Waitotara Reserve. Made up of 71,640 acres spread across 496 leases, this amalgamation left the 4,491 Māori owners without specific interests in their customary lands. 12. The Maori Affairs Amendment Act 1967 further facilitated sales of reserve land. The Maori Trustee could sell the freehold to the lessee provided a proportion of the beneficial owners holding sufficient shares agreed to sell their interests, even if the former owners of the blocks were opposed to selling. Between 1968 and 1975 the Maori Trustee sold 16,325 acres from the Parininihi ki Waitotara Reserve. 13. In 1976, following the recommendation of the Commission of Inquiry into Maori Reserved Land, the amalgamated reserve was vested in the Parininihi ki Waitotara Incorporation (PKW). Under its constitution and Te Ture Whenua Maori Act 1993, the Incorporation is tasked with administering and leasing 55,137 acres of Māori reserve land on behalf of 8,500 owners. 14. Considered an interim step towards regaining control of Māori reserve land interests, perpetual lease arrangements continued to hamper any efforts by owners to exercise any form of control of their own lands. 15. Following further inquiries in 1991 (the Marshall review) and 1993 (the Maori Reserved Lands Panel), Parliament passed the Maori Reserved Lands Amendment Act The Act made some improvements for Māori, including the introduction of seven-year rent reviews, and a move towards market rentals. 16. It also provided a mechanism for the Incorporation to purchase back leases as they became available. However, a fundamental flaw means PKW is unable to access sufficient capital to purchase back leases. In the meantime, approximately 20,000 hectares of land throughout Taranaki still remain subject to perpetual lease arrangements. Whenua Māori/Māori Land Ngāruahine Rohe 17. A cursory review of the Māori Land Court records show there is approximately 5,196 hectares of Māori freehold in the Ngāruahine rohe. Approximately 2,001 hectares are managed either by owners or iwi/hapū, and includes three marae reserves and ten tauranga waka (canoe landing sites), together totalling less than 300 acres, which still remain in trust to the iwi or hapū. 18. The remaining Māori freehold land interests are managed by PKW, which, despite no natural captial flows within shareholdings, has been reasonably successful in buying back land still under perpetual leases.

4 19. Importantly, with the majority of Māori freehold land in Ngāruahine rohe already developed into productive pasture land, pastoral leasing arrangements are the most common form of income owners derive from their lands. Analysis 20. An analysis of the the Te Ture Whenua Māori Bill was undertaken, with comments detailed in the table below. Table 1: TKONT Feedback Reference Part 1, section 3 Aronga me ngā mātāpono o tēnei Ture Section 9 Evidence of applicable tikanga māori Part 2 Whenua Māori/ Māori land and whenua tāpui Subpart 1 Whenua Māori/ Māori land Māori freehold land Subpart 2 Whenua tāpui Te Ture Whenua Māori Bill Feedback The importance of the aronga me ngā mātāpono is acknowledged, noting the value-add of a table showing how each part of the Bill is a tangible expression, or demonstration of one or more of the principles, to support implementation. TKONT notes, as a central tenet of the Bill, a deferral to tikanga Māori in relation to the administration and management of Māori customary and freehold land. However, to support the mātāpono tikanga Māori is central to matters involving Maōri land, a resource guide of what good evidence might look like would be very helpful in supporting implementation, until such times as the Court has built a sufficient body of case law to draw on. Given the paucity of Māori customary land remaining, the provisions relating to Part 2 Whenua Māori/Māori land and whenua tāpui are acknowledged, while noting the following: a. section 16(1)(b): the notion of the kaiwhakahaere is introduced here, with a further explanation provided in s17. However, sections 189, 191, etc., provide a detailed description of the role in general. Further thought should then be given to how this information could be better presented within the Bill, and/or resources developed explaining governance arrangements, roles and responsibilities proposed under the Bill; and b. section 16(3)(b), where: in alignment with section 27, a change of status by more than 75% of the owners of the land is preferred; and consider including a reference to Schedule 2, 12(c) Meeting of Owners in relation to attendance via telephone or Internet-based technology. The provisions relating to Subpart 1 Whenua Māori/Māori land are acknowledged, while noting the following: a. sections 25(4) & (6) and 26(1)(a-d) are relatively complex due to the number of potential inter-dependencies with other parts of the Bill. Consideration should be given to how the relationship between clauses could be either better presented in the Bill, or provided through supporting resources; and b. 23(1)(h) and 26(1)(e): An example of another Act under which land becomes and ceases to be Māori freehold land would be useful. The provisions relating to Subpart 2- Whenua tāpui are acknowledged, while also noting the following:

5 Part 3 Ownership interests in Māori freehold land Subpart 2 Whānau Trusts Subpart 3 Kaiwhakamarumaru for owners needing protection Part 4 Dispositions of Māori freehold land and other land Part 5 Authority to act in relation to Māori freehold land a. section 29(2): it would be useful to further clarify the distinction this clause is trying to make; and b. It would be useful to provide, before section 30, an explanation, similar to that on p 19, that private land refers to all land classes, including Māori land. Otherwise, one is inclined to look at the whenua tāpui provisions with respect to Māori customary or freehold land, when the distinction no longer applies. Alternatively, the section could be arranged so that the implications for different Māori and other land classes are clear. The provisions relating to Part 3 Ownership interests in Māori freehold land are noted, and in particular, the following sections: a. Collective Ownership: offers tenants/joint tenants the opportunity to dispense with individuated titles in Māori land; and b. How owners of Māori freehold land make decisions: provides details regarding decision-making thresholds, process, participation thresholds, and majority requirements. The provisions relating to Subpart 2 - Whānau Trusts, and in particular Clause 65 Recording of beneficiaries details on Māori land register is noted. The provisions relating to Subpart 3 Kaiwhakamarumaru for owners needing protection are acknowledged. The provisions relating to Part 4 Disposition of Māori freehold land and other land are acknowledged, and in particular: a. that under section 104, a governance body must have in place a land management plan, and prepare an allocation scheme for the beneficial interests in replacement land; b. sections , which provide clarity regarding leasing and rental arrangements on Māori freehold land; and c. section 135 that facilitates access to Māori land; However, the following should be noted: d. section 103(1)(b): guidance of what would constitute evidence regarding no reasonable prospect of obtaining the required level of owner agreement will provide useful guidance on how this provision would be applied; e. section 133(2)(a-b): provisions regarding the sale or mortgage of Māori land is spread throughout the Bill, for e.g., clauses 100, 133 and 190. It would be more convenient to bring these aspects together, given the potential risks around the mortgage or sale of Māori land; and f. sections : Similar to comment (a) for Part 2 Whenua Māori/Māori land and whenua tāpui above, the notion of kawenata tiaki whenua is introduced early in the Bill, but is not fully explained until now. Again, perhaps consider how this information might be better consolidated in the Bill, and/or produce a resource, which fully explains the concept in its entirety. The provisions relating to Part 5 Authority to act in relation to Māori freehold land, subpart 1 Governance bodies are acknowledged, while noting the following:

6 Subpart 1 Governance bodies Part 6 Operation of governance bodies Part 7 Administration of estates Part 8 Registers, jurisdiction about land, giving of notices, and other provisions Part 9 Dispute resolution a. the notion of kaitiaki is mentioned in sections 39, 62 and 75 before a full explanation is provided at section 154. While crossreferenced, as it has specific connotations in relation to the Bill, it is worth considering resources, which better describe concepts like governance bodies, kaitiaki and kaiwhakahaere for users as they apply under the Bill. The provisions relating to Part 4 Disposition of Māori freehold land and other land are noted, and in particular: a. that under section 213, unpaid distributions may be used for any purpose consistent with a governance agreement, while acknowledging the subsequent debt, and tracking and publishing all such unpaid distributions; b. sections provides useful details around full or partial distritbution schemes; and c. sections provides useful details regaridng the role of the Māori Trustee in relation to unpaid distributions. The provisions relating to Part 7 Adminstration of estate are acknowledged, and in particular: a. under section 246(4)(a-b), how sections 295 and 296 respectively will apply in the case of no eligible beneficiary to a parcel or individual interest of Māori freehold land. Note however, the following comments: b. section 247: in the event there is more than one eligible beneficiary to succession on intestacy, the establishment of a whānau trust should be automatic not optional. Only when the court is notified that a family arrangement is preferred, should section 248 then apply. This would also better align with section 245 Matters relating to whānau trust established on intestacy; c. clarity is required regarding whether section 255(2)(a-c) is prioritised as listed, or equal consideration is to be given to each; d. for sections 264(2) and 265(2), it is assumed that these requirements relating to recording the rights of surviving spouses and partners, may be sought as part of the succession to interests either gifted by will, or of an intestate deceased owner. In which case, this should be mentioned in the Bill, otherwise the provisions give the impression that this is a separate process, with the onus on the spouse, civil union or de facto partner to initiate. The provisions relating to Part 8 Registers, jurisdiction about land, giving notices, and other provisions are acknowledged. The provisions relating to Part 9 Dispute resolution are acknowledged, while noting the following: a. section 329 provides a description of the kaitakawaenga and mātauranga takawaenga positions at the beginning of Part 9. TKONT found this very useful and suggests a similar approach be taken with respect to the kawenata tiaki whenua, kaiwhakahaere, governance bodies and kaitiaki roles, where these are referred to, before being fully explained in a later section.

7 Part 11 Māori Land Court Part 12 Māori Appellate Court Part 13 Provisions applying to both courts The provisions relating to Part 11 Māori Land Court are acknowledged, and in particular: a. exclusive jurisdiction of the Māori Land Court to advise on, and hear and make determinations on disputes referred to it under sections 53 and 54 respectively of the Māori Commercial Aquaculture Claims Settlement Act The provisions relating to Part 12 Māori Appellate Court are acknowlegded. The provisions relating to Part 13 Provisions applying to both courts are acknowledged. Summary 21. Based on the above analysis, TKONT makes the following observations: a. Strengths: i. Given the context provided in the previous section, a particular strength of the Bill is how it gives owners more options in terms of: - a greater say in how Māori land can be managed; - options with respect to governance arrangements; - thresholds for decision-making; and - detailed provisions to better support implementation of the Bill; ii. aronga me ngā mātāpono: having these in place from the out-set insure that even within a legislative framework, implementing the Bill will entail constantly referring back to these values, considered most important from a te ao Māori perspective, in relation to the retention, use and management of Māori land; and iii. the prescriptive nature of the Bill, while providing some challenges (see below), also provides much need guidance and certainty, which is particularly evident in the following Parts: b. Opportunities: - 3 Ownership interests in Māori freehold land; - 6 Operation of governance bodies; - 8 Registers, jurisdiction about land, giving notices, and other provisions; and - 9 Dispute resolution; and i. its prescriptive nature, coupled with new terms and inter-dependencies between sections, means that the Bill is more suited to professional users. Consideration then, needs to given to ensuring the Bill, once enacted, is made accessible to a wider audience through supporting publications, guidelines, resources, etc.; ii. because of its structure, a reader will need to refer to different parts of the Bill to fully understand what is required. Cross-referencing is used extensively throughout the Bill. However, TKONT found that the format used in section 329, was particularly useful in providing a better understanding of the terms kaitakawaenga and mātauranga takawaenga. It is suggested that a similar

8 format be adopted, particularly in relation to the terms kawenata tiaki whenua, kaiwhakahaere, governance bodies and kaitiaki; and iii. the Bill addresses the issue of individuated titles in Māori freehold land, through a mix of governance provisions and ownership mechanisms like collective ownrship and whānau trusts. However, only time will tell whether these are effective in mitigating the issue of on-going fragmentation of interests in Māori freehold land. 22. TKONT would like to thank yourself and the Committee for this opportunity to make a submission in relation to the Bill. Nāku iti nei, nā David More Kairangahau Matua, Te Korowai o Ngāruahine Trust